[Cite as State v. Garvin, 197 Ohio App.3d 453, 2011-Ohio-6617.]


                          IN THE COURT OF APPEALS OF OHIO
                             FOURTH APPELLATE DISTRICT
                                   SCIOTO COUNTY

THE STATE OF OHIO,                                    :
                                                      :
                Appellee,                             : Case No. 10CA3348
                                                      :
        v.                                            : Released: December 5, 2011
                                                      :
GARVIN,                                               : DECISION AND JUDGMENT
                                                      : ENTRY
                Appellant.                            :

                                          APPEARANCES:

       Timothy Young, Ohio Public Defender, and Claire R. Cahoon and Terrence
Scott, Assistant Public Defenders, for appellant.

      Mark Kuhn, Scioto County Prosecuting Attorney, and Pat Apel, Assistant
Prosecuting Attorney, for appellee.


        MCFARLAND, Judge.

        {¶ 1} Appellant, Kara Garvin, appeals her conviction in the Scioto County

Court of Common Pleas after a jury found her guilty of one count of aggravated

burglary, two counts of aggravated robbery, six counts of aggravated murder with

specifications, tampering with evidence, and a firearm specification. Although this

was originally a capital case, the trial court sentenced appellant to life in prison

without the possibility of parole.

        {¶ 2} Appellant raises four assignments of error, arguing that (1) the trial

court erred by failing to suppress eyewitness identifications of her, denying her due
Scioto App. No. 10CA3348                                                                  2


process, (2) the trial court erred by failing to change the venue because of pretrial

publicity, denying appellant due process and a fair trial, (3) the trial court erred by

failing to question a juror about her relationship with the county sheriff, denying

appellant due process and a fair trial, and (4) trial counsel provided ineffective

assistance when they failed to inquire further or object to the seating of the juror

who was related to the county sheriff. Having reviewed the record, we find no

merit to appellant’s four assignments of error, and we affirm the trial court’s

judgment.

                                        FACTS

      {¶ 3} Edward Mollett, Juanita Mollett, and Christina Mollett were shot to

death on December 22, 2008. A.S., a six-year-old child, was present during the

shooting. According to A.S., a woman with dark hair and a vest containing knives

and guns entered the Molletts’ trailer in Scioto County, Ohio, and began

systematically shooting the Molletts. Christina Mollett lay on top of A.S. to shield

him. Once the shooting ceased, the dark-haired woman took Edward Mollett’s

prescription medication and left. A.S. then ran to a neighbor’s trailer.

      {¶ 4} The neighbor, James Damron, called 9-1-1, and law enforcement

arrived. In addition to law enforcement, family members and other neighbors

gathered at Damron’s trailer. Detective Paul Blaine of the Scioto County Sheriff’s

Department began questioning A.S. and Damron.
Scioto App. No. 10CA3348                                                               3


      {¶ 5} Damron indicated that he had seen a vehicle drive up to the Molletts’

trailer before the shooting and drive away immediately thereafter. Damron could

not initially identify the driver of the vehicle, other than saying that it was a female

with dark hair.

      {¶ 6} A.S. had indicated that a woman with dark hair had shot his family.

Detective Blaine asked additional questions about the shooter’s appearance. To

get a better understanding, Blaine had A.S. compare the physical characteristics of

the shooter to those of the women present at Damron’s trailer. While Blaine was

talking with A.S., other law-enforcement officers began to suspect that appellant

was involved in the shooting.

      {¶ 7} A.S.’s mother subsequently transported him to the hospital for an

evaluation, concerned that he might have been going into shock. Detective Blaine

went back to his office and began compiling a photo array. Blaine began with

appellant’s photo, because she was the only suspect at that time. He had access to

appellant’s photo because she had previously been booked into the jail. Blaine then

entered appellant’s physical characteristics into a computer program that gave him

a resulting pool of photos of women whose physical characteristics were similar.

These women had also previously been booked into the jail. Blaine manually

chose five photos similar to appellant’s. The final array contained color photos of

six women, including appellant.
Scioto App. No. 10CA3348                                                            4


      {¶ 8} Detective Blaine took the completed array to the hospital to show A.S.

While A.S. was looking at the array on his mother’s lap, his mother began to coax

him to pay attention to the women’s hair. Not wanting A.S.’s identification to be

tainted, Blaine moved A.S. to a corner and continued showing him the photo array.

A.S. identified appellant as the person who shot his family, and he signed his name

on appellant’s photo.

      {¶ 9} Later that evening, appellant, with the assistance of counsel,

surrendered to law enforcement. As deputies booked appellant into the Scioto

County jail, they photographed her.

      {¶ 10} The following day, Detective Blaine went to speak with Damron

about identifying the person he had seen driving the vehicle away from the crime

scene. Blaine asked Captain David Hall to prepare another photo array to show

Damron. Using the same software that Blaine had employed before, Hall compiled

a second photo array. This array, however, used appellant’s booking photo from

the previous night.

      {¶ 11} Before Captain Hall gave the photo array to Detective Blaine, he

asked Damron whether he had been watching the news or had read the paper.

Damron responded that he had not. When Blaine presented the photo array to

Damron, Damron immediately identified appellant’s photo.
Scioto App. No. 10CA3348                                                              5


      {¶ 12} When later questioned about how he went from being unable to

identify the driver on the day of the incident to immediately identifying her the day

after, Damron explained that he was familiar with appellant. His daughter had

known appellant for more than 10 years, and Damron had seen appellant at social

gatherings. It was not that he did not remember what the driver of the vehicle

looked like, but Damron was bad with names; he initially stated that he knew the

driver’s face, but not her name. Presented with the photo array, Damron was easily

able to identify the woman he had seen leaving the crime scene: appellant.

      {¶ 13} Appellant filed a plethora of pretrial motions. Among these,

appellant moved to suppress A.S.’s and Damron’s identification testimony as

unduly suggestive and unreliable. The trial court held a suppression hearing and

ultimately overruled appellant’s motion. Before the trial court issued its ruling,

appellant withdrew her motion regarding A.S. She later renewed her motion as to

A.S., and the trial court denied it.

      {¶ 14} Beginning the day after the shooting, there were news reports

concerning the incident. The shootings were a topic of discussion among county

residents. The news articles relayed the names of the victims, noted that appellant

was the main suspect, noted that appellant was in custody after surrendering

herself, and alleged motives for the shootings. The media also covered pretrial

proceedings and were present during the trial. Several stories were published
Scioto App. No. 10CA3348                                                                     6


immediately before trial, noting the impending jury selection and reminding

readers and viewers of the case’s subject matter.

       {¶ 15} When the trial began, the court bifurcated the voir dire process.

Initially, the court and counsel inquired of the veniremen individually. There were

preliminary examinations of persons wishing to be excused for medical or

educational reasons. The court then proceeded to inquire of the veniremen about

their qualifications to serve as jurors in a capital trial, as well as the extent of their

exposure to pretrial media and its effect upon their ability to be fair and impartial.

Counsel examined the veniremen, too. Subsequently, the court conducted the

general voir dire, which was performed with groups of veniremen, not

individually.

       {¶ 16} During the initial voir dire, the court and counsel examined

approximately 106 veniremen about whether they had read, seen, or heard media

reports about the case. Eighty-five of those veniremen (over 80 percent) responded

that they had. Only seven persons were dismissed for cause because they evinced

a preconceived opinion of appellant’s guilt based upon media reports. Fifty-eight

veniremen remained for the general voir dire, with 45 (over 77 percent) having

been exposed to pretrial media reports concerning the case.

       {¶ 17} The remaining 58 veniremen included Miriam Clausing. Clausing

had disclosed on her questionnaire that she was the first cousin of the Scioto
Scioto App. No. 10CA3348                                                              7


County Sheriff. It was the sheriff’s department that had investigated the Molletts’

deaths. The court inquired how close Clausing was to the sheriff, but did not ask

whether her relationship would influence her ability to be fair and impartial.

Appellant’s counsel had an opportunity to question Clausing, but they too did not

question her ability to be fair and impartial and raised no causal challenge. Even

during the general voir dire, appellant’s counsel did not question Clausing’s ability

to be impartial and did not raise a causal challenge. Clausing was eventually

seated on the jury and served as the foreperson during deliberations.

      {¶ 18} After the presentation of evidence, the jury found appellant guilty of

aggravated burglary, multiple counts of aggravated robbery, multiple counts of

aggravated murder, tampering with evidence, a firearm specification, and many

other specifications. The jury did not sentence appellant to death, but chose

instead imprisonment for life without the possibility of parole. Appellant now

appeals.

                           ASSIGNMENTS OF ERROR

             I. The pretrial photographic procedure was so unnecessarily

      suggestive and conducive to misidentification that Ms. Garvin was denied

      the due process of law.
Scioto App. No. 10CA3348                                                               8


             II. The trial court violated Ms. Garvin’s constitutional rights to due

      process and a fair trial by denying Ms. Garvin a change of venue based on

      pretrial publicity.

             III. The trial court violated Ms. Garvin’s constitutional rights to due

      process and a fair trial by failing to question a juror about whether her

      relationship to the county sheriff would affect her ability to be fair and

      unbiased.

             IV. Trial counsel provided constitutionally ineffective assistance

      when counsel failed to question or object to a prospective juror who was the

      first cousin of the county sheriff.

                                I. Pretrial Identification

      {¶ 19} In her first assignment of error, appellant argues that the trial court

erred when it permitted A.S. and Damron to testify to their pretrial identification of

appellant. Appellant contends that the pretrial identification procedures were

unnecessarily suggestive and the witnesses’ identifications were unreliable. We

disagree.

                                A. Standard of Review

      {¶ 20} “Appellate review of a motion to suppress presents a mixed question

of law and fact. When considering a motion to suppress, the trial court assumes

the role of trier of fact and is therefore in the best position to resolve factual
Scioto App. No. 10CA3348                                                                9


questions and evaluate the credibility of witnesses.” State v. Burnside, 100 Ohio

St.3d 152, 2003-Ohio-5372, 797 N.E.2d 71, at ¶ 8, citing State v. Mills (1992), 62

Ohio St.3d 357, 366, 582 N.E.2d 972. “Consequently, an appellate court must

accept the trial court’s findings of fact if they are supported by competent, credible

evidence.” Id., citing State v. Fanning (1982), 1 Ohio St.3d 19, 437 N.E.2d 583.

“Accepting these facts as true, the appellate court must then independently

determine, without deference to the conclusion of the trial court, whether the facts

satisfy the applicable legal standard.” Id., citing State v. McNamara (1997), 124

Ohio App.3d 706, 707 N.E.2d 539. See also State v. Roberts, 110 Ohio St.3d 71,

2006-Ohio-3665, 850 N.E.2d 1168, at ¶ 100.

      {¶ 21} “Where factual issues are involved in determining a motion, the court

shall state its essential findings on the record.” Crim.R. 12(F). While the trial

court made no explicit factual findings when it denied appellant’s motion to

exclude the testimony of A.S. and Damron, “[t]he extensive record of the

suppression hearing is ‘sufficient to allow full review of the suppression issues.’ ”

State v. Sapp, 105 Ohio St.3d 104, 2004-Ohio-7008, 822 N.E.2d 1239, at ¶ 96,

quoting State v. Waddy (1992), 63 Ohio St.3d 424, 443, 588 N.E.2d 819, citing

State v. Brewer (1990), 48 Ohio St.3d 50, 60, 549 N.E.2d 491.
Scioto App. No. 10CA3348                                                                10


                                  B. Legal Analysis

      {¶ 22} “When a witness has been confronted with a suspect before trial, due

process requires a court to suppress her identification of the suspect if the

confrontation was unnecessarily suggestive of the suspect’s guilt and the

identification was unreliable under all the circumstances.” Waddy at 438, citing

Neil v. Biggers (1972), 409 U.S. 188, 93 S.Ct. 375, 34 L.Ed.2d 401, and Manson v.

Brathwaite (1977), 432 U.S. 98, 97 S.Ct. 2243, 53 L.Ed.2d 140.

      {¶ 23} “Under Neil’s two-pronged test, the first question is whether the

identification procedure was unnecessarily suggestive.” Waddy at 438. A

defendant has “the burden of going forward and the burden of persuasion” to

establish, by a preponderance of the evidence, that a pretrial identification

procedure was unnecessarily suggestive. State v. Greene (Apr. 12, 1979), 4th Dist.

No. 1211, 1979 WL 206802. See also State v. McCroskey, 5th Dist. No.

2007CA89, 2008-Ohio-2534, ¶ 28; State v. Wills (1997), 120 Ohio App.3d 320,

324, 697 N.E.2d 1072; State v. Bauldwin, 8th Dist. No. 94876, 2011-Ohio-1066, at

¶ 36; State v. Justice, 2d Dist. No. 23744, 2010-Ohio-6484, at ¶ 16; State v. Banks,

10th Dist. Nos. 09AP-1087 and 09AP-1088, 2010-Ohio-5714. If the defendant

fails to establish that the pretrial identification was unnecessarily suggestive, our

inquiry ends. Waddy at 439 (continuing to the second prong of the Neil test

because the identification procedure was unnecessarily suggestive). See State v.
Scioto App. No. 10CA3348                                                              11


Gross, 97 Ohio St.3d 121, 2002-Ohio-5524, 776 N.E.2d 1061, at ¶ 19

(emphasizing that suppression occurs only with both unnecessary suggestiveness

and unreliability under the totality of the circumstances). See also State v. Ruark,

10th Dist. No. 10AP-50, 2011-Ohio-2225, at ¶ 54; State v. Levingston, 1st Dist.

No. C-090235, 2011-Ohio-1665, at ¶ 8; Bauldwin at ¶ 36. “[A]s long as pretrial

identification procedures are not unduly suggestive, issues concerning the

reliability of that identification [go] to the weight of the evidence, not its

admissibility.” State v. Conley, 4th Dist. No. 08CA784, 2009-Ohio-1848, at ¶ 9,

citing Wills at 324, and McCroskey at ¶ 29.

       {¶ 24} “Suggestiveness depends on several factors, including the size of the

array, its manner of presentation, and its contents.” Bauldwin at ¶ 36,citing Wills

at 325. Regarding the array’s contents, courts should consider, amongst other

factors, whether the persons in the array with the defendant “appear relatively

similar in age, features, skin tone, * * * dress, and photo background.” McCroskey

at ¶ 30.

       {¶ 25} If the pretrial identification procedure is unnecessarily suggestive, the

second question is “whether, under all the circumstances, the identification was

reliable, i.e., whether suggestive procedures created ‘ “a very substantial likelihood

of irreparable misidentification.” ’ ” Waddy, 63 Ohio St.3d at 439, 588 N.E.2d

819, quoting Neil, 409 U.S. at 198, 93 S.Ct. 375, 34 L.Ed.2d 401, quoting Simmons
Scioto App. No. 10CA3348                                                              12


v. United States (1968), 390 U.S. 377, 384, 88 S.Ct. 967, 19 L.Ed.2d 1247. “In

evaluating whether the procedure created a very substantial likelihood of

irreparable misidentification, courts should look to the following key factors: (1)

the witness’s opportunity to view (or, in the case of a voice identification, to hear)

the defendant during the crime, (2) the witness’s degree of attention, (3) the

accuracy of the witness’s prior description of the suspect, (4) the witness’s

certainty, and (5) the time elapsed between the crime and the identification.” State

v. Dickess, 4th Dist. No. 06CA3128, 2008-Ohio-39, at ¶ 24, citing Waddy at 439,

citing Neil, 409 U.S. at 199-200, 93 S.Ct. 375, 34 L.Ed.2d 401.

      {¶ 26} Here, the pretrial identification procedures were not unnecessarily

suggestive. While the first prong of Neil focused on the procedure that law

enforcement used to obtain the identifications, appellant’s argument is that the

arrays themselves were unnecessarily suggestive because her photos were distinct.

Specifically, appellant argues that the background, the lack of “booking lines,” the

“drastically varied angle,” and the relative size of her photos make them stand out

within the arrays and render the arrays suggestive. We disagree.

      {¶ 27} First, the photos in the arrays do not have identical characteristics.

Though they were all taken at the Scioto County Jail, the photos vary by

perspective angle, relative distance from the lens (size), and background color.

Since these characteristics differ amongst the photos, the differences between
Scioto App. No. 10CA3348                                                              13


appellant’s photos and the others do not draw unnecessary attention. Rather, the

fact that appellant’s photos differ from the others actually makes them similar to

the others in the arrays.

      {¶ 28} Second, appellant is correct that her photos lack the booking lines in

the background, but this does not make the arrays suggestive. If anything, the lack

of booking lines in appellant’s photos would make her photo seem less

incriminating, because they were devoid of any indication that they were taken

inside a jail. Moreover, when considering the suggestiveness of the array itself,

courts must consider the size of the array, the manner of its presentation, and its

contents — whether the various persons are similar in age, features (including

hair), skin tone, dress, and background.

      {¶ 29} Regarding the size of the arrays, each consists of six photos,

including appellant’s. Appellant does not argue, nor do we find, that six photos are

too few. Nor does appellant contend that the other women within the arrays are so

different in age, features, skin tone, or dress as to render the arrays suggestive.

      {¶ 30} Third, the manner in which law enforcement presented the arrays to

A.S. and Damron was not suggestive. Detective Blaine initially showed the photo

array to A.S. while he was on his mother’s lap at the hospital. Once A.S.’s mother

started to coax him, Blaine removed A.S. from his mother’s lap and spoke to him

privately, to specifically avoid any suggestiveness. Blaine asked A.S. whether he
Scioto App. No. 10CA3348                                                               14


could identify the woman who shot his family, and A.S. identified appellant’s

photo. That procedure was not suggestive.

         {¶ 31} Likewise, Detective Blaine and Captain Hall’s presentation of the

array to Damron was not suggestive. Hall asked whether Damron had watched the

news on television or had seen photos regarding the murders, but Damron assured

him that he had not. Blaine handed the array to Damron and asked whether the

woman he had seen driving the vehicle the night of the murders was within the

array. Damron immediately identified appellant and was quite certain of his

identification. Nothing in this procedure was unnecessarily suggestive, either.

         {¶ 32} Thus, we find that the pretrial identification procedures were not

unnecessarily suggestive. Therefore, any issues concerning their reliability go to

their weight, not their admissibility, and we overrule appellant’s first assignment of

error.

                                  II. Change of Venue

         {¶ 33} In her second assignment of error, appellant argues that the trial court

erred by denying her motion for change of venue. Specifically, appellant contends

that the extensive pretrial publicity concerning her case influenced the citizens of

Scioto County and made it impossible for her to receive a fair trial. We disagree.
Scioto App. No. 10CA3348                                                                15


                                A. Standard of Review

      {¶ 34} Our standard of review for denial of a motion to change venue is

abuse of discretion. State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787

N.E.2d 1185, at ¶ 23; State v. Fairbanks (1972), 32 Ohio St.2d 34, 37, 289 N.E.2d

352; State v. Berecz, 4th Dist. No. 08CA48, 2010-Ohio-285, at ¶ 30. An appellate

court should reverse a trial court’s decision regarding change of venue only upon a

clear showing of abuse of discretion. State v. Metz (Apr. 21, 1998), 4th Dist. No.

96CA48, 1998 WL 199944, citing State v. Gumm (1995), 73 Ohio St.3d 413, 430,

653 N.E.2d 253. “ ‘The term “abuse of discretion” connotes more than an error of

law or judgment; it implies that the court’s attitude is unreasonable, arbitrary or

unconscionable.’ ” Blakemore v. Blakemore (1983), 5 Ohio St.3d 217, 219, 450

N.E.2d 1140, quoting State v. Adams (1980), 62 Ohio St.2d 151, 157, 404 N.E.2d

144. “Under this highly deferential standard of review, we may not simply

substitute our judgment for that of the trial court.” Woody, 4th Dist. No. 09CA34,

2010-Ohio-6049, at ¶ 35, citing In re Jane Doe 1 (1991), 57 Ohio St.3d 135, 137-

138, 566 N.E.2d 1181. “Rather, we are limited to determining whether considering

the totality of the circumstances, the trial court acted unreasonably, arbitrarily or

unconscionably.” Id., citing Briganti v. Briganti (1984), 9 Ohio St.3d 220, 222,

459 N.E.2d 896, citing Blakemore at 218-220.
Scioto App. No. 10CA3348                                                              16


      {¶ 35} However, an appellant’s failure to exhaust his peremptory challenges

waives his ability to later challenge the denial of his motion for change of venue.

State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, at ¶ 61.

As the Supreme Court stated in State v. Conway, “[t]he limited number of defense

challenges for pretrial publicity and the failure to exhaust peremptory challenges

indicate that the defense did not believe that the jury venire was overly exposed to

negative publicity.” State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848

N.E.2d 810, at ¶ 38 (defense challenged only four of 14 venire members who

indicated that they had heard about the case through media or had learned of the

defendant’s criminal past), citing State v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-

2284, 787 N.E.2d 1185, at ¶ 37. Here, because appellant did not exercise all her

peremptory challenges, we review her second assignment of error only for plain

error. State v. Beebe, 4th Dist. No. 10CA2, 2011-Ohio-681, at ¶ 15, citing State v.

McDougald, 4th Dist. No. 07CA3157, 2008-Ohio-1398, at ¶ 16; State v. Tackett,

4th Dist. No. 06CA3103, 2007-Ohio-6620, at ¶ 28.

      {¶ 36} “[T]here are ‘three limitations on a reviewing court’s decision to

correct [a waived error]. First, there must be an error, i.e., a deviation from a legal

rule. * * * Second, the error must be plain. To be “plain” within the meaning of

Crim.R. 52(B), an error must be an “obvious” defect in the trial proceedings. * * *

Third, the error must have affected “substantial rights.” [The Supreme Court of
Scioto App. No. 10CA3348                                                             17


Ohio has] interpreted this aspect of the rule to mean that the trial court’s error must

have affected the outcome of the trial.’ ” State v. Lynn, 129 Ohio St.3d 146, 2011-

Ohio-2722, at ¶ 13, quoting State v. Barnes (2002), 94 Ohio St.3d 21, 27, 759

N.E.2d 1240. Regarding the third limitation, “reversal is warranted only when the

outcome of the trial clearly would have been different without the error.” Beebe at

¶ 10, citing State v. Long (1978), 53 Ohio St.2d 91, 372 N.E.2d 804, at paragraph

two of the syllabus.

      {¶ 37} Yet “[e]ven when all three prongs are satisfied, a court still has

discretion whether or not to correct the error.” Lynn at ¶ 14, citing State v. Noling,

98 Ohio St.3d 44, 2002-Ohio-7044, 781 N.E.2d 88, at ¶ 62. Courts are “to notice

plain error ‘ “with the utmost caution, under exceptional circumstances and only to

prevent a manifest miscarriage of justice.” ’ ” Id. at ¶ 14, quoting Barnes at 27,

quoting Long at paragraph three of the syllabus.

                                  B. Legal Analysis

      {¶ 38} “The Sixth Amendment in terms guarantees ‘trial, by an impartial

jury * * *’ in federal criminal prosecutions. Because ‘trial by jury in criminal

cases is fundamental to the American scheme of justice,’ the Due Process Clause

of the Fourteenth Amendment guarantees the same right in state criminal

prosecutions.” Nebraska Press Assn. v. Stuart (1976), 427 U.S. 539, 551, 96 S.Ct.

2791, 49 L.Ed.2d 683, quoting Duncan v. Louisiana (1968), 391 U.S. 145, 149, 88
Scioto App. No. 10CA3348                                                               18


S.Ct. 1444, 20 L.Ed.2d 491. “In essence, the right to jury trial guarantees to the

criminally accused a fair trial by a panel of impartial, ‘indifferent’ jurors * * *. ‘A

fair trial in a fair tribunal is a basic requirement of due process.’ ” Nebraska Press

Assn. at 551, quoting In re Murchison (1955), 349 U.S. 133, 136, 75 S.Ct. 623, 99

L.Ed. 942. “In the ultimate analysis, only the jury can strip a man of his liberty or

his life.” Id.

       {¶ 39} Crim.R. 18(B) provides, “Upon the motion of any party or upon its

own motion the court may transfer an action * * * when it appears that a fair and

impartial trial cannot be held in the court in which the action is pending.” R.C.

2901.12(K) provides the same.

       {¶ 40} “Pretrial publicity can undermine a trial’s fairness.” State v.

Landrum (1990), 53 Ohio St.3d 107, 117, 559 N.E.2d 710. “However, Crim.R.

18(B) does not require a change of venue merely because of extensive pretrial

publicity.” Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, at ¶ 23. “[P]retrial

publicity[,] even pervasive, adverse publicity[,] does not inevitably lead to an

unfair trial.” Nebraska Press Assn., 427 U.S. at 554, 96 S.Ct. 2791, 49 L.Ed.2d

683.

       {¶ 41} “It is sufficient if the juror can lay aside his impression or opinion

and render a verdict based on the evidence presented in court.” Irvin v. Dowd

(1961), 366 U.S. 717, 723, 81 S.Ct. 1639, 6 L.Ed.2d 751, citing Spies v. Illinois
Scioto App. No. 10CA3348                                                               19


(1887), 123 U.S. 131, 8 S.Ct. 22, 31 L.Ed. 80; Holt v. United States (1910), 218

U.S. 245, 31 S.Ct. 2, 54 L.Ed. 1021; and Reynolds v. United States (1878), 98 U.S.

145, 25 L.Ed. 244. “ ‘[A] careful and searching voir dire provides the best test of

whether prejudicial pretrial publicity has prevented obtaining a fair and impartial

jury from the locality.’ ” Landrum at 117, quoting State v. Bayless (1976), 48 Ohio

St.2d 73, 98, 357 N.E.2d 1035. “[E]ven extensive pretrial publicity may have

dissipated its effects before trial.” Id., citing Murphy v. Florida (1975), 421 U.S.

794, 95 S.Ct. 2031, 44 L.Ed.2d 589.

      {¶ 42} Thus, “[a] defendant claiming that pretrial publicity has denied him a

fair trial must show that one or more jurors were actually biased.” Lynch at ¶ 35,

citing State v. Treesh (2001), 90 Ohio St.3d 460, 464, 739 N.E.2d 749. “Only in

rare cases may prejudice be presumed.” Id., citing State v. Lundgren (1995), 73

Ohio St.3d 474, 479, 653 N.E.2d 304, and Nebraska Press Assn., 427 U.S. 539, 96

S.Ct. 2791, 49 L.Ed.2d 683.

      {¶ 43} In Irvin, the Supreme Court reversed the defendant’s conviction

because of pretrial publicity and preformed opinions the jury venire possessed.

Irvin, 366 U.S. at 727-729. The trial court excused 268 of 430 veniremen for

having preformed opinions as to the defendant’s guilt. Id. at 727. Even eight of

the 12 seated jurors believed the defendant was guilty, but agreed to set aside their

opinion and hear the evidence. Id. Despite the jurors’ statements under oath that
Scioto App. No. 10CA3348                                                              20


they would remain fair and impartial, the Supreme Court found such an assertion

dubious in light of the strong public sentiment: “The influence that lurks in an

opinion once formed is so persistent that it unconsciously fights detachment from

the mental processes of the average man.” Id.

      {¶ 44} Likewise, in Rideau v. Louisiana (1963), 373 U.S. 723, 83 S.Ct.

1417, 10 L.Ed.2d 663, the court reversed a defendant’s conviction when the media

had broadcast a televised “interview” between the sheriff and the defendant, in

which the defendant confessed to the crimes with which he was charged. The trial

court had denied the motion for change of venue, but the Supreme Court, in a

rather brief opinion, “[did] not hesitate to hold, without pausing to examine a

particularized transcript of the voir dire examination of the members of the jury,

that due process of law in this case required a trial before a jury drawn from a

community of people who had not seen and heard Rideau’s televised ‘interview.’ ”

Rideau at 727.

      {¶ 45} Conversely, in a case when virtually all the veniremen had been

exposed to pretrial media reports regarding the case, the Supreme Court of Ohio

affirmed the denial of change of venue when no one in the venire could recall

details of the media accounts, they all indicated that the pretrial media would not

influence their opinion, and five months had passed between the initial

proliferation of media accounts and the trial. Landrum, 53 Ohio St.3d at 117, 559
Scioto App. No. 10CA3348                                                             21


N.E.2d 710. See also Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, at ¶ 33-38

(affirming the denial of change of venue when few veniremen recalled details of

the case from the media, none expressed a preformed opinion of the defendant’s

guilt, and the defendant did not challenge any venireman for cause due to pretrial

publicity).

      {¶ 46} Here, the news reports were not inflammatory. The articles relayed

only factual information. While there were comments posted on some of the news

publications’ websites, they do not factor into our analysis. The anonymity of the

Internet precludes a finding that such comments showed that appellant could not

receive a fair trial in Scioto County. There is no way of knowing whether any of

the persons who posted comments actually resided in Scioto County. Nor is there

a way of knowing whether each comment was posted by a unique person. Thus,

anonymous comments posted on a website can hardly be used as an accurate gauge

of the public sentiment for an entire county.

      {¶ 47} Unlike the situation in Rideau, there was no “spectacle” within the

media accounts. There was nothing that permits us to find that the process was

presumptively prejudicial to appellant. Thus, we look to whether any of the jurors

were actually biased.

      {¶ 48} The initial voir dire revealed that the majority of the veniremen who

did recall media accounts about the case were unable to recall specific details.
Scioto App. No. 10CA3348                                                                 22


This is an excellent example of the effects of pretrial publicity dissipating before

trial. It had been nearly 18 months between the incident and the trial. If the media

had inflamed the community near the time of the murders, 18 months served well

to squelch such sentiment. Indeed, only seven persons were dismissed from the

entire venire because they had seen some form of pretrial media and were unable

to set aside a preformed opinion of appellant’s guilt. Furthermore, unlike the

situation in Irvin, no one who was seated upon the jury had expressed a preformed

opinion of appellant’s guilt. Therefore, we find that none of the jurors were

actually biased and that pretrial publicity did not deprive appellant of a fair trial.

      {¶ 49} Without circumstances demonstrating that the community was

presumptively prejudiced against appellant, and without demonstrating actual bias

amongst the jurors, appellant’s argument falls short, and we find that the trial court

did not abuse its discretion when it denied appellant’s motion to change venue.

With no actual error and no demonstration of prejudice, we find no plain error.

Accordingly, we overrule appellant’s second assignment of error.

                                     III. Voir Dire

      {¶ 50} In her third assignment of error, appellant argues that the trial court

denied her due process and a fair trial because it did not question Clausing about

whether her relationship to the Scioto County Sheriff would impede her ability to

be fair and impartial. We find appellant’s argument unpersuasive.
Scioto App. No. 10CA3348                                                               23


                                              A. Standard of Review

          {¶ 51} By appellant’s failing to inquire about Clausing’s impartiality and

failing to object to her being seated on the jury, appellant waived all but plain

error.1

                                                 B. Legal Analysis

          {¶ 52} During the initial voir dire, when the court and counsel spoke with

the veniremen individually, the trial court raised the issue of Clausing’s

relationship with the Scioto County Sheriff. The court inquired how close

Clausing’s relationship was with the sheriff, and she responded that they did not

see each other very often, save the occasional family gathering for Christmas. This

seemed to satisfy the court that Clausing’s relationship with the sheriff would not

influence her, as the court proceeded to discuss her view of the death penalty.

          {¶ 53} Appellant contends, “The failure to question [Clausing] about that

relationship prejudiced [appellant], because [Clausing] was seated as a juror and

became the jury forewoman.” The flaw in appellant’s argument is that she has

failed to demonstrate how the outcome of her trial would have been different had

the trial court inquired further. The mere fact that Clausing was ultimately placed

on the jury does not establish prejudice. Appellant has provided no evidence that



          1
              See plain-error standard of review, supra.
Scioto App. No. 10CA3348                                                                 24


Clausing was biased or prejudiced against her or that her presence on the jury

affected the trial’s outcome.

         {¶ 54} To the contrary, Clausing disclosed that she had served as an

alternate juror on a capital case once before and appreciated how emotional and

serious a task it was. Her view on the death penalty had “mellowed,” and she felt

that “the [accused] has the right to a fair trial and to be heard, and for a decision to

be made based on fairness.”

         {¶ 55}With no showing that Clausing’s presence on the jury affected the

trial’s outcome, we find no plain error and overrule appellant’s third assignment of

error.

                          IV. Ineffective Assistance of Counsel

         {¶ 56} In her fourth assignment of error, appellant argues that her trial

counsel failed to question Clausing on her relationship with the county sheriff and

failed to object to her sitting on the jury, which amounted to ineffective assistance

of counsel. We disagree.

                                 A. Standard of Review

         {¶ 57} “In order to establish ineffective assistance of counsel, an appellant

must show that counsel’s representation was both deficient and prejudicial.” State

v. Michael, 4th Dist. No. 09CA887, 2010-Ohio-5296, at ¶ 15, citing In re Sturm,

4th Dist. No. 05CA35, 2006-Ohio-7101, at ¶ 77; Strickland v. Washington (1984),
Scioto App. No. 10CA3348                                                               25


466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. “Deficient representation

means counsel’s performance was below an objective standard of reasonableness.

To show prejudice, an appellant must show it is reasonably probable that, except

for the errors of his counsel, the proceeding’s outcome would have been different.”

(Citations omitted.) Michael at ¶ 15. “ ‘Failure to satisfy either prong is fatal as

the accused’s burden requires proof of both elements.’ ” State v. Weddington, 4th

Dist. No. 10CA19, 2011-Ohio-1017, at ¶ 12, quoting State v. Hall, 4th Dist. No.

07CA837, 2007-Ohio-6091, at ¶ 11, citing State v. Drummond, 111 Ohio St.3d 14,

2006-Ohio-5084, 854 N.E.2d 1038, at ¶ 205.

      {¶ 58} We “ ʻmust indulge a strong presumption that counsel’s conduct falls

within the wide range of reasonable professional assistance; that is, the defendant

must overcome the presumption that, under the circumstances, the challenged

action might be considered sound trial strategy.’ ” State v. Hankison, 4th Dist. No.

09CA3326, 2010-Ohio-4617, at ¶ 105, quoting Strickland at 689. “ ‘Moreover, the

strategic decision of a trial attorney will not form the basis of a claim of ineffective

assistance of counsel, even if there may have been a better strategy available.’ ”

Hankison at ¶ 105, quoting State v. Komora (Apr. 4, 1997), 11th Dist. No. 96-G-

1994, 1997 WL 184758, citing State v. Clayton (1980), 62 Ohio St.2d 45, 49, 402

N.E.2d 1189.

                                  B. Legal Analysis
Scioto App. No. 10CA3348                                                             26


      {¶ 59} “ ‘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. Davis, 116

Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, at ¶ 61, quoting State v. Evans

(1992), 63 Ohio St.3d 231, 247, 586 N.E.2d 1042. “ ‘[C]ounsel is in the best

position to determine whether any potential juror should be questioned and to what

extent.’ ” Davis at ¶ 61, quoting State v. Murphy (2001), 91 Ohio St.3d 516, 539,

747 N.E.2d 765.

      {¶ 60} Here, appellant’s claim fails for two reasons. First, her counsel was

vested with the discretion to decide what questions to ask the jury venire. Because

appellant’s counsel had no obligation to ask particular questions, it follows that

there was no error when her counsel exercised its strategic discretion and did not

ask particular questions of Clausing.

      {¶ 61} Second, as with appellant’s third assignment of error, she has failed

to demonstrate prejudice. Appellant concedes, “Because defense counsel did not

question Ms. Clausing about her relationship with the county sheriff during voir

dire, there is no way to know to what extent that relationship affected Ms.

Clausing’s deliberations.” That is, there is simply no way to know whether

Clausing’s presence on the jury prejudiced appellant. Consequently, appellant

cannot demonstrate that the outcome of her trial would have been different if her
Scioto App. No. 10CA3348                                                           27


trial counsel had posed additional questions to Clausing or objected to her being on

the jury.

      {¶ 62} Without demonstrating an actual error or prejudice, appellant’s claim

of ineffective assistance of counsel fails. Accordingly, we overrule appellant’s

fourth assignment of error.

                                                                Judgment affirmed.



      HARSHA, P.J., and KLINE, J., concur.

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