[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Madison, Slip Opinion No. 2020-Ohio-3735.]




                                           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. 2020-OHIO-3735
            THE STATE OF OHIO, APPELLEE, v. MADISON, APPELLANT.
  [Until this opinion appears in the Ohio Official Reports advance sheets, it
      may be cited as State v. Madison, Slip Opinion No. 2020-Ohio-3735.]
Criminal Law—Aggravated murder—Capital convictions and death sentences
        affirmed.
   (No. 2016-1006—Submitted September 11, 2019—Decided July 21, 2020.)
   APPEAL from the Court of Common Pleas of Cuyahoga County, No. 579539.
                                   __________________
        DEWINE, J.
        {¶ 1} This is a direct appeal in a capital case. Over a nine-month period,
Michael Madison murdered three women in his East Cleveland apartment. A jury
found Madison guilty of three counts of aggravated murder, and he was sentenced
to death on each count. We affirm the convictions and the death sentences.
                                    I. BACKGROUND
                A. Three Bodies Are Discovered in East Cleveland
        {¶ 2} Madison lived in a second-floor apartment on Hayden Avenue in East
Cleveland. A cable-television company occupied the ground floor. In July 2013,
                             SUPREME COURT OF OHIO




workers at the cable company noticed a foul odor coming from a garage behind the
building and called the police. In the garage, which was used by Madison and
several others, the police discovered a large garbage bag jammed between
Madison’s car and the wall. The officers cut open the bag and found inside the
decomposing body of Shirellda Terry. The body had been wrapped in a paisley
bedsheet and then enveloped in multiple layers of garbage bags.
       {¶ 3} Searching further, officers discovered another garbage bag under a
brush pile located behind the garage. In that bag was the decomposing body of
Shetisha Sheeley. Another garbage bag was discovered in the basement of an
abandoned house, just 15 to 20 yards from the brush pile. This one held the body
of Angela Deskins. Like Terry’s body, the bodies of Sheeley and Deskins had been
placed inside multiple garbage bags. In addition, a sheet and a sports-themed
blanket were wrapped around the body of Deskins.
       {¶ 4} Autopsies revealed that Terry and Deskins had been strangled to death
with a belt. Terry had a severe laceration penetrating her vagina and her anus that
was inflicted while she was still alive. Sheeley had a deep bruise on her face, also
inflicted while she was alive, but her body was too badly decomposed for the
medical examiner to determine a precise cause of death. Each victim’s body had
been bent at the waist, and the head had been bound to the legs.
                   B. The Victims and Their Disappearances
       {¶ 5} All three women had gone missing within the past year. Twenty-
eight-year-old Sheeley had last communicated with her family in September 2012.
At trial, Brittney Darby, one of Madison’s girlfriends, testified that around that
time, she had noticed a fresh scab on Madison’s nose. When she asked him about
it, he told her he had broken up a fight between two girls.
       {¶ 6} The father of 38-year-old Angela Deskins lost contact with her around
May 2013. At trial, a friend of Deskins testified that around this same time, he had




                                         2
                                January Term, 2020




dropped Deskins off at an abandoned barbeque spot in East Cleveland where
Madison was waiting for her.
        {¶ 7} In the same time period, Darby noticed a strong smell in Madison’s
apartment. Madison claimed that the smell came from two raccoons who had died
in the front closet. But when Darby pressed him on the point, Madison began
sweating profusely and seemed nervous. “You don’t want to see that,” he told her.
Later that week, Darby could still smell the odor near the closet. She asked
Madison if that was where the raccoons had been, and he said that it was in an
irritated tone.
        {¶ 8} Eighteen-year-old Shirellda Terry was last seen alive on July 10,
2013. She had met Madison a week earlier and exchanged phone numbers with
him. Over the following days, they texted back and forth. Madison told Terry that
he was 25 years old and had no kids. (He was actually 35 and had two kids.)
Madison also lied about what he did for a living.
        {¶ 9} The two discussed when and where they might “hang[] out.” Madison
suggested that Terry “come to [his] place.” Terry replied: “We can hang[] out but
I’m not going to your house[;] I don’t trust you like that yet.” On the afternoon of
July 10, she texted to Madison: “Do you wanna hang[] out now[?]” Madison asked
if she was headed to his street and she replied that she was “on 152[nd] and [St.]
Clair right now.” That was Terry’s last message.
        {¶ 10} A few days later, Darby noticed a long, deep scratch on Madison’s
shoulder. He claimed that he had been in a fight and his adversary’s girlfriend had
scratched him. Subsequently, another girlfriend of Madison’s, Shawnta Mahone,
noticed a foul smell in his apartment. Madison claimed he did not know what the
odor was but said it might be a dead animal. Around the same time, Mahone saw
several deep scratches on Madison’s face. According to Mahone, Madison told her
that “he got into a fight and a girl jumped in and scratched his face.”




                                          3
                             SUPREME COURT OF OHIO




                 C. Madison’s Confession and DNA Evidence
       {¶ 11} Detectives interrogated Madison over the course of several days, and
on July 21, 2013, he signed a four-page confession. He admitted that he had choked
a woman to death in October 2012 and then left her in his apartment while he went
out drinking. When he returned, he “folded her up,” put her into multiple layers of
trash bags, and moved her to the garage. He left the body there for months, then
moved it outside behind the garage. He did not know this victim’s name.
       {¶ 12} Madison claimed he did not recall actually killing the other victims.
He admitted that he had invited Terry to his apartment. He was “really drunk and
high” that night, he said, and did not remember killing her. But he did recall waking
up next to her dead body and later putting the body in the garage. As to the third
victim, Deskins, Madison said he did not recall anything about her death or what
he did with the body.
       {¶ 13} A search of Madison’s apartment turned up a few personal items that
yielded a DNA profile consistent with Terry’s profile. A piece of bloodstained
carpet found in the closet where Darby had noticed an odor in May had a DNA
profile consistent with Deskins’s. And a pillowcase in the apartment had a paisley
pattern matching the sheet Terry had been wrapped in.
                    D. Indictment, Verdicts, and Sentences
       {¶ 14} The grand jury returned a 14-count indictment against Madison. The
indictment included two counts of aggravated murder for each victim—one
premised on R.C. 2903.01(A), for murder committed with prior calculation and
design, the other on R.C. 2903.01(B), for felony murder.
       {¶ 15} For the state to impose the death penalty, an indictment must
include—and the state must prove—one of the specifications set forth in R.C.
2929.04(A). Here, each aggravated-murder count included a specification alleging
that the murder was part of a course of conduct involving the purposeful killing or
attempt to kill two or more victims, see R.C. 2929.04(A)(5), and a felony-murder




                                         4
                                           January Term, 2020




          specification predicated on kidnapping, see R.C. 2929.04(A)(7). Additionally, the
          aggravated-murder counts involving Terry each included a felony-murder
          specification predicated on rape.
                 {¶ 16} The table below shows all the indicted offenses, the death
          specifications, and the other specifications:
Counts    Offenses                                 Death Specifications                 Other
                                                                                        Specifications
Count 1   Aggravated murder of Shetisha Each included a course-of-conduct Counts 1 through
          Sheeley under R.C. 2903.01(A) specification, R.C. 2929.04(A)(5), 10 each carried a
          (prior calculation and design)           and a felony-murder specification, sexual-motivation
Count 2   Aggravated murder of Sheeley under R.C. 2929.04(A)(7), predicated on specification,
          R.C. 2903.01(B) (felony murder kidnapping.                                    R.C.
          predicated on kidnapping)                                                     2941.147(A);
Count 3   Kidnapping of Sheeley under R.C.                                              a        sexually-
          2905.01(A)(3)                                                                 violent-predator
                                                                                        specification,
Count 4   Aggravated      murder    of     Angela Each included a course-of-conduct R.C.
          Deskins under R.C. 2903.01(A) specification, R.C. 2929.04(A)(5), 2941.148(A);
          (prior calculation and design)           and a felony-murder specification, a     repeat-violent-
Count 5   Aggravated murder of Deskins under R.C. 2929.04(A)(7), predicated on offender
          R.C. 2903.01(B) (felony murder kidnapping.                                    specification,
          predicated on kidnapping)                                                     R.C.
Count 6   Kidnapping of Deskins under R.C.                                              2941.149(A);
          2905.01(A)(3)                                                                 and a notice of
Count 7   Aggravated murder of Shirellda Each included a course-of-conduct prior conviction,
          Terry under R.C. 2903.01(A) (prior specification, R.C. 2929.04(A)(5), R.C.
          calculation and design)                  and       two          felony-murder 2929.13(F)(6).




                                                    5
                                         SUPREME COURT OF OHIO




Count 8    Aggravated murder of Terry under specifications, R.C. 2929.04(A)(7),
           R.C. 2903.01(B) (felony murder predicated on kidnapping and rape.               Counts 1 through
           predicated on kidnapping)                                                       8 and 10 each
Count 9    Kidnapping of Terry under R.C.                                                  carried a firearm
           2905.01(A)(3)                                                                   specification,
Count 10   Rape     of       Terry   under   R.C.                                          R.C.
           2907.02(A)(2)                                                                   2941.141(A).




Count 11    Having a weapon under a disability                                             Counts 11 through
                  under R.C. 2923.13(A)(2)                                                 14 each carried a
Count 12   Gross abuse of a corpse under R.C.                                              firearm-forfeiture
           2927.01(B) (Sheeley)                                                            specification,
Count 13   Gross abuse of a corpse under R.C.                                              R.C.
           2927.01(B) (Deskins)                                                            2941.1417(A).
Count 14   Gross abuse of a corpse under R.C.
           2927.01(B) (Terry)                                                              Counts 12 through
                                                                                           14 each carried a
                                                                                           firearm
                                                                                           specification,
                                                                                           R.C. 2941.141(A)


                   {¶ 17} A jury found Madison guilty on Counts 1 through 10 and 12 through
           14, as well as all the death specifications and sexual-motivation specifications. The
           jury found him not guilty of the firearm specifications. Count 11, the weapon-
           under-a-disability charge, and the remaining specifications were tried to the judge,
           who found Madison guilty of Count 11 and the sexually-violent-predator
           specifications.




                                                    6
                                January Term, 2020




       {¶ 18} At the close of the penalty phase, the jury recommended death for
each aggravated-murder count. The trial court merged the aggravated-murder
counts for each victim, and the state elected to proceed on the counts alleging prior
calculation and design: Counts 1, 4, and 7. The trial court sentenced Madison to
death for each murder and imposed prison sentences on the noncapital counts.
       {¶ 19} Madison now appeals, raising 20 propositions of law.
                                 II. JURY ISSUES
       {¶ 20} Madison’s first four propositions of law attack the adequacy of the
voir dire (proposition of law No. 1) and the trial court’s resolution of challenges for
cause (propositions of law Nos. 2 and 3) and contend that the practice of death-
qualifying capital juries violates the First Amendment to the United States
Constitution (proposition of law No. 4). None of these claims has merit.
                            A. Adequacy of Voir Dire
       {¶ 21} In his first proposition of law, Madison asserts that the trial court
improperly restricted his counsel’s ability to conduct voir dire. Madison lists many
jurors and prospective jurors whose voir dire he claims was inadequate. But only
some of these persons actually served on the jury. Because Madison can be
prejudiced only as a result of restrictions on the voir dire of those who actually
served on his jury, we will limit our analysis to those jurors only. See State v.
Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007, 824 N.E.2d 504, ¶ 25.
           1. Questioning to Identify Automatic-Death-Penalty Jurors
       {¶ 22} Madison maintains that the trial court prevented his counsel from
asking questions sufficient to identify jurors who would automatically vote for a
death sentence without considering mitigating factors. In particular, he argues that
his counsel should have been allowed to incorporate into their questions the
“inflammatory” facts of the case—three women kidnapped and murdered, one of
them raped, and their bodies disposed of “like trash.” This claim applies to seated
juror Nos. 5, 23, 40, and 43.




                                          7
                             SUPREME COURT OF OHIO




         {¶ 23} The trial judge has discretion over the scope, length, and manner of
voir dire. See State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d
166, ¶ 40; State v. Getsy, 84 Ohio St.3d 180, 190, 702 N.E.2d 866 (1998). However,
because “[a] juror who will automatically vote for the death penalty in every case
* * * has already formed an opinion on the merits” and is therefore not impartial,
“a capital defendant may challenge for cause any prospective juror who maintains
such views.” Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d
492 (1992). And the defendant is entitled to a voir dire adequate to identify such
jurors. Id. at 729-736.
         {¶ 24} But Morgan does not give the defense a right to ask prospective
jurors how they will vote “given the specific facts of the individual case.” Hodges
v. Colson, 727 F.3d 517, 529 (6th Cir.2013); see also Richmond v. Polk, 375 F.3d
309, 330 (4th Cir.2004). The purpose of voir dire is not to establish how a juror
will vote on the case to be tried; it is to discover whether any juror has a bias that
would prevent him or her from individually weighing the facts of the case.
         {¶ 25} We have held that in a capital case involving the death of a young
child, the defendant is entitled upon request to have the prospective jurors informed
of the fact that the victim was a child and to ask questions that seek to reveal bias.
State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 61.
Jackson’s rationale centers on the fact that the murder of a young child is especially
likely to evoke strong emotions. Id. at ¶ 60. By its terms, the holding in Jackson
narrowly applies only in death-penalty cases involving the murder of a young child
and only when the defense seeks to inform the prospective jurors of that fact. And,
even then, it does not require that prospective jurors be informed of the specific
details of the murder; they are to be informed only that the victim was a young
child.
         {¶ 26} We reject Madison’s attempt to extend Jackson beyond the facts of
that case. We also note that in this case, the trial judge, exercising her discretion,




                                          8
                                January Term, 2020




did allow a fair amount of information about inflammatory facts to be revealed
during voir dire.    The allegations of triple homicide, kidnapping, “sexual[]
mutilat[ion],” and corpse abuse were all set forth in the jury questionnaire. In
addition, during the examinations of juror Nos. 5, 40, and 43, the court allowed
defense counsel to ask questions incorporating inflammatory facts.
       {¶ 27} This portion of Madison’s first proposition of law lacks merit.
                      2. Use of “Follow the Law” Questions
       {¶ 28} Madison also complains that the trial court allowed the prosecution
to ask the prospective jurors whether they would “follow the law” despite their
personal views and used the responses to retain jurors who should have been
excluded under Morgan, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492.
Madison contends that permitting these “superficial” questions “denied [him] a
reasonable opportunity to discover[] necessary information about at least some of
these juror’s views about capital punishment.” But Madison does not explain how
the prosecutor’s questions could have impaired his own counsel’s ability to inquire
into the views of the jurors. We reject this portion of Madison’s first proposition.
   3. Questions about Jurors’ Understanding of Rights and Responsibilities
       {¶ 29} Madison additionally contends that the trial court unreasonably
restricted his counsel’s attempts to ask jurors about their understanding of their
“rights and responsibilities” as jurors in a capital case. He asserts—without citing
authority—that such questioning is “[e]ssential to an adequate voir dire.”
       {¶ 30} The purpose of voir dire is to determine whether a prospective juror
has the statutory qualifications to be a juror and is free from bias or prejudice, and
to facilitate an “intelligent exercise” of peremptory challenges. State v. Anderson,
30 Ohio St.2d 66, 72, 282 N.E.2d 568 (1972). It is not to indoctrinate jurors or
instruct them in the law. See State v. Patterson, 188 Ohio App.3d 292, 2010-Ohio-
2012, 935 N.E.2d 439, ¶ 85-86 (2d Dist.); State v. Carmon, 10th Dist. Franklin No.
75AP-583, 1976 WL 189810, *2 (June 1, 1976).              Furthermore, contrary to




                                          9
                              SUPREME COURT OF OHIO




Madison’s claims, the trial court did not uniformly prevent defense counsel from
asking about these matters.
                          a. “Personal Moral Judgment”
       {¶ 31} Madison complains that the trial court precluded his counsel from
asking jurors if they understood that they were required to exercise their own
“personal moral judgment” in weighing aggravating circumstances and mitigating
factors. This claim applies to seated juror Nos. 5, 9, 30, and 32.
       {¶ 32} Certainly, jurors exercise moral judgment in capital sentencing. But
Madison cites no authority supporting his claim that he was entitled to ask this
specific question. In any event, the trial court allowed his counsel to ask questions
on the topic multiple times. Only when questions became repetitive did the trial
court sustain objections or tell counsel to “move on.” The record does not indicate
an abuse of discretion.
                              b. “Spark of Humanity”
       {¶ 33} Madison next asserts that the trial court improperly prevented his
counsel from asking jurors if they understood they could consider anything to be
mitigating, including seeing a “spark of humanity” in the defendant. Again, he cites
no authority for the proposition that a capital defendant is entitled to ask such a
question on voir dire.
       {¶ 34} This claim applies to four seated jurors (Nos. 7, 30, 35, and 43). In
the case of juror No. 30, the “spark of humanity” question was asked without
objection. This question or similar questions to juror Nos. 7, 35, and 43 were not
permitted, but the defense did ask these jurors about having moral feelings in one’s
heart that one cannot articulate and about being able to exercise their “personal
moral judgment” without any obligation to explain themselves. These questions
cover concepts similar to the “spark of humanity” question, and the trial court did
not abuse its discretion by disallowing the question as to some jurors.
               c. Duty to Respect Moral Judgment of Other Jurors




                                         10
                                 January Term, 2020




        {¶ 35} Madison next objects that the court did not allow his counsel to
inquire about each juror’s “duty to respect the personal moral judgment of their
fellow jurors.” This claim applies to six seated jurors (Nos. 23, 24, 30, 32, 40, and
43). However, it is factually supported only as to juror Nos. 40 and 43. Madison’s
counsel was allowed to ask this question of the other four, being restricted only
when the questions became repetitive. And counsel was permitted to ask juror No.
43 about his obligation to “listen very carefully” and to “consider everything” the
other jurors might say.
        {¶ 36} In any event, we see no error. Madison cites no authority for this
alleged duty, nor does he explain why this question is essential to an adequate voir
dire.
                       d. Single-Juror Veto of Death Sentence
        {¶ 37} Madison further complains that his counsel was restricted from
asking jurors if they understood that every juror could preclude a death sentence.
This claim applies to three seated jurors (Nos. 24, 32, and 40). But defense counsel
was permitted to tell one of these jurors that “if one juror * * * votes for life, it’s a
life sentence” and another that “each individual juror has the power of life.” The
trial court sustained objections only when counsel asked the jurors if they knew that
all jurors could do this and when counsel described it as an “awesome” power or
responsibility. Further, counsel was allowed to describe the matter as an important
responsibility and to ask the jurors to deliberate carefully. No abuse of discretion
is apparent here.
                       e. Death Sentence Will Be Carried Out
        {¶ 38} Madison also contends that the trial court improperly barred his
counsel from inquiring into the jurors’ understanding that if a death sentence is
imposed in Ohio, it will actually be carried out. This claim applies to one seated
juror (No. 43). Madison cites no authority establishing a right to ask this question
on voir dire, and we find no abuse of discretion.




                                           11
                             SUPREME COURT OF OHIO




                 4. Failure to Define Aggravation and Mitigation
       {¶ 39} In his final challenge to the adequacy of voir dire, Madison takes
issue with the trial court’s failure to define the terms “aggravating circumstances”
and “mitigating factors.” But “[a]t the early stage of a trial, the trial court is not
required to completely instruct the jury, for example, by defining mitigation.” State
v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 202. This applies
to aggravating circumstances as well.
       {¶ 40} Madison’s first proposition of law is overruled.
                        B. Defense Challenges for Cause
       {¶ 41} In his second proposition of law, Madison contends that the trial
court erroneously overruled his challenges for cause to nine jurors and prospective
jurors. Juror Nos. 5, 40, and 43 were seated as jurors in this case; the remaining
six, prospective juror Nos. 11, 12, 29, 31, 34, and 37, were peremptorily challenged
by the defense.    Madison maintains that each should have been excused as
automatic-death-penalty jurors under Morgan, 504 U.S. 719, 112 S.Ct. 2222, 119
L.Ed.2d 492. He also says that juror Nos. 40 and 43 should have been excused for
other reasons.
       {¶ 42} On a challenge for cause, “[t]he ultimate question is whether the
‘juror sw[ore] that he could set aside any opinion he might hold and decide the case
on the evidence, and [whether] the juror’s protestation of impartiality [should be]
believed.’ ” (Brackets sic.) White v. Mitchell, 431 F.3d 517, 538 (6th Cir.2005),
quoting Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 81 L.Ed.2d 847
(1984). This determination “necessarily involves a judgment on credibility,” State
v. DePew, 38 Ohio St.3d 275, 280, 528 N.E.2d 542 (1988), so “deference must be
paid to the trial judge who sees and hears the juror,” Wainwright v. Witt, 469 U.S.
412, 426, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Hence, a trial court’s resolution
of a challenge for cause will be upheld unless it is unsupported by substantial




                                         12
                                January Term, 2020




testimony, so as to constitute an abuse of discretion. State v. Tyler, 50 Ohio St.3d
24, 31, 553 N.E.2d 576 (1990).
                   1. Alleged Automatic-Death-Penalty Jurors
                                   a. Juror No. 5
       {¶ 43} At the outset of her voir dire, juror No. 5 stated that she would
consider the aggravating circumstances and mitigating factors in determining the
sentence. When asked if she could put her personal opinion aside and follow the
law even if she thought “someone is deserving of the death penalty but the law
prohibits” it, she said, “Yes.” After the prosecutor explained what “mitigation”
meant, she said she would consider mitigation.
       {¶ 44} Juror No. 5 later gave a few contrary responses when Madison’s
counsel asked her to assume that a defendant had been found guilty of aggravated
murder with “no legal justification or excuse” in the course of a kidnapping or rape
or multiple homicides, with 100 percent certainty of guilt.
       {¶ 45} Trying to clarify the juror’s views, the trial court pointed out that she
had earlier said she would “consider all the possible sentences” but had told defense
counsel that she would vote to impose a death sentence in the scenario she was
given. The court asked: “Are you telling me that you would not consider those
other factors—those other possible sentences?” She answered, “I would still
mitigate—I would still go through the process to come to a fair decision in my
heart.” (Emphasis added.)
       {¶ 46} In response to a later defense question, the juror said that if the
defendant was proven guilty and no mitigating factors existed, she would vote to
impose a death sentence. But if there were mitigating factors, she said, she “would
consider them.” She reaffirmed this twice.
       {¶ 47} The trial court asked: “[I]f the mitigating factors indicated to you
that life with parole at 25 was appropriate, would you do that?” The juror replied:
“Yes, I would. * * * [I]t goes back to being a fair person, to take everything into




                                         13
                             SUPREME COURT OF OHIO




consideration and make a decision based on the law and what I feel is appropriate
I guess.” (Emphasis added.)
       {¶ 48} When a prospective juror gives contradictory answers, it is the trial
judge’s function to determine her true state of mind. E.g., State v. Group, 98 Ohio
St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 66. But Madison maintains that a
juror who indicates a preference for an automatic death penalty is biased under
Morgan even if the juror states that he or she will follow the law.
       {¶ 49} It is true that a Morgan challenge may not be denied based merely
on a juror’s answers to “general questions of fairness and impartiality.” (Emphasis
added.) Morgan, 504 U.S. at 735, 112 S.Ct. 2222, 119 L.Ed.2d 492. But juror No.
5 “was not merely making a general promise to be fair or to uphold the law.” State
v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 171. Her
statements were specific. She repeatedly pledged to consider mitigation and said
the sentence she would vote to impose would depend on what the mitigating factors
were. The trial court’s decision to retain her was “supported by substantial
testimony,” id. at ¶ 173, and was not an abuse of discretion.
                           b. Prospective Juror No. 11
       {¶ 50} Prospective juror No. 11 said that he was not “predisposed to the
death penalty.” He understood that he was required to vote for a life sentence if the
state failed to prove that aggravation outweighed mitigation, and he pledged to “put
[his] own personal preference aside,” weigh the mitigating factors, and fully
consider all sentencing options.
       {¶ 51} Defense counsel specifically declined to challenge this prospective
juror under Morgan and indeed conceded that he was not a Morgan-challengeable
juror. When the defense challenged this prospective juror for cause, it did so only
on the ground that the trial court had unduly restricted his voir dire. Now, Madison
argues that prospective juror No. 11 should have been excluded under Morgan. But




                                         14
                                January Term, 2020




he waived this claim by declining to assert it at trial. See State v. Bethel, 110 Ohio
St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 116.
                            c. Prospective Juror No. 12
       {¶ 52} Prospective juror No. 12 indicated on his questionnaire that the death
penalty should be imposed in all murder cases. The trial court outlined the jury’s
four sentencing options—life in prison with parole eligibility after 25 years, life in
prison with parole eligibility after 30 years, life in prison without parole, and the
death penalty—and asked prospective juror No. 12 if he would consider all four
before rendering his verdict. He replied: “I’d have to see all the information to give
an honest answer.” The court then asked: “Would you in fact consider any
mitigating factors that the defense may present * * * and after that weighing
process, would you return a verdict after fairly and fully considering all those four
options?” The prospective juror said he would.
       {¶ 53} The trial court asked prospective juror No. 12 why he had indicated
on his questionnaire that death should be imposed in all murder cases. He replied,
“[T]hat was my feeling at the time.” When asked if he felt that he “could determine
the sentence he would impose right now,” he answered, “No.” Instead, he would
listen to everything, weigh it, and only then make his determination. And he
reiterated that he would consider all four sentences. He understood that if the
aggravating circumstances did not outweigh the mitigating factors, it would be his
duty to vote for a life sentence, and he said he could do that.
       {¶ 54} Prospective juror No. 12’s questionnaire response would have made
him ineligible had he stuck to it. But he did not; he modified his position during
voir dire. He explained that his response reflected what he thought “at the time,”
indicating that his views had changed during the voir dire process as he better
understood the requirements of the law. He said that he had not predetermined his
verdict and repeatedly stressed the importance of knowing the facts before voting




                                          15
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to impose a sentence. The trial court did not abuse its discretion in declining to
excuse him for cause.
                            d. Prospective Juror No. 29
       {¶ 55} Prospective juror No. 29 wrote on his questionnaire that “[i]n some
cases,” capital punishment is “all right.” He also checked a box indicating that the
death penalty “[s]hould be imposed in most, but not all, murder cases.”
       {¶ 56} On voir dire, prospective juror No. 29 told the trial court that if he
felt the mitigating factors outweighed the aggravating circumstances, he could
consider the life-sentencing options that the judge had outlined to him. The court
asked prospective juror No. 29 whether he would “consider everything that’s
presented to [him], engage in that weighing process,” and base his verdict on
whether or not the aggravating circumstances outweighed the mitigating factors
beyond a reasonable doubt. He said, “Yes.”
       {¶ 57} The prosecutor asked prospective juror No. 29 whether he
understood that he must impose a life sentence if the state did not prove beyond a
reasonable doubt that the aggravating circumstances outweighed the mitigating
factors. He said that he did and that he was comfortable with that.
       {¶ 58} The prosecutor then asked prospective juror No. 29 to explain what
he meant by “some cases” on his questionnaire. He replied: “It all depends on if
the person is guilty of the crime, if [it’s] proved * * * that he’s taken someone else’s
life, then he should give his own life for that life that he’s taken.” The prosecutor
explained that her question assumed the person had been found guilty and then
asked: “But what if the state does not prove beyond a reasonable doubt that the
aggravating circumstances outweigh the mitigating factors? Can you apply the law
that says that you have to impose” one of the life-sentence options?               The
prospective juror said: “I suppose you can do that, sure.” He also said he could
apply the law, even though he might not agree with it. The prosecutor then asked
again whether he could vote for a life sentence if the state failed to prove beyond a




                                          16
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reasonable doubt that the aggravating circumstances outweighed the mitigating
factors. He answered, “Yes.”
       {¶ 59} During defense questioning, prospective juror No. 29 stated that in
his “personal opinion,” a person who takes life “ruthlessly” and without
justification or excuse gives up his right to live. The trial court then asked: “[I]f
you feel that the mitigating factors outweigh any aggravating circumstances [sic],
could you consider the other possibilities [i.e., the life sentencing options]?” He
said that he could and that he would listen to all the evidence.
       {¶ 60} Defense counsel then asked: “You’ve already said that if somebody
goes out and kills somebody, as far as you’re concerned in your personal moral
judgment, it’s the death penalty?” The prospective juror said: “From what I
understand, * * * they have to prove it beyond whatever reasonable doubt or what
have you, * * *. If they don’t do it like you’ve already went through it earlier, then
I could impose one of the other three. (Emphasis added.) Defense counsel said,
“You’re right on the law” but then asked: “[I]n your mind, in your heart, a guy who
goes out and does something like that, * * * it’s the death penalty, right?” The
prospective juror replied: “[I]f they can prove it * * * I can say yes or no to that.”
(Emphasis added.)
       {¶ 61} The trial court overruled a defense challenge for cause. Madison
argues that the court abused its discretion in retaining the prospective juror and
complains that the defense had to later remove him with a peremptory challenge.
Though at one point, prospective juror No. 29 stated his “personal opinion” that a
person who takes a life ruthlessly and without justification gives up his right to live,
he repeatedly said that he would follow the law and could consider imposing a life
sentence. Taking his voir dire as a whole, the trial court did not abuse its discretion
by retaining him.
                            e. Prospective Juror No. 31




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       {¶ 62} Prospective juror No. 31 wrote on her questionnaire that the death
penalty is warranted “in some henious [sic] cases.” She also checked a box
indicating that the death penalty is “[a]ppropriate in some murder cases [and]
inappropriate in other murder cases,” adding that “although murder is horrendous,
sometimes the circumstances would warrant a less severe sentence.”
       {¶ 63} On voir dire, the prospective juror stated that she understood that the
state had to prove that the aggravating circumstances outweighed the mitigating
factors for the death penalty to be imposed. She also acknowledged that if the state
failed to so prove, she “would be required to make a finding of one of the life
sentences” and said that she could do so. When asked if she had predetermined the
sentence, she said that she had not because she had not yet heard the evidence.
       {¶ 64} When asked what she meant by heinous cases, she explained that it
meant “something that’s beyond * * * an average case—* * * something so
horrendous that it’s not fathomable.” Defense counsel asked if she regarded the
facts of the instant case, as stated in the questionnaire, as heinous; the prospective
juror answered: “If it’s proven.” She also said: “I think in a heinous case I would
say that all would probably involve the death penalty. * * * In lesser degrees of
guilt, that there may be other sentences that are more appropriate.”
       {¶ 65} Prospective juror No. 31 did not state that she would automatically
support a death sentence even for a heinous crime; the closest she came was her
statement that all heinous cases would “probably involve the death penalty.”
(Emphasis added.) But she wrote on her questionnaire that death was warranted in
“some” heinous cases and said on voir dire that she would impose one of the life
sentences if aggravation did not outweigh mitigation. Considering all her answers,
the trial court did not abuse its discretion in concluding that she was not an
automatic-death-penalty juror and in overruling the defense’s challenge for cause.
                            f. Prospective Juror No. 34




                                         18
                                January Term, 2020




       {¶ 66} Prospective juror No. 34 wrote on his questionnaire that he favored
the death penalty for all persons convicted of murder. But on voir dire, when asked
if he could impose a life sentence, he said: “I suppose I could.” The trial court
explained: “[I]f you find that [the] mitigating factors outweigh any aggravating
circumstances, then you would be required to return a penalty and not the death
penalty.” He said he thought he could do that, adding, “it’s hard for me to sit here
not knowing what those mitigating circumstances may or may not be.” The trial
court explained that at the appropriate time, the jury would be told what they were.
The prospective juror said he would be able to consider and weigh them. The trial
court asked: “[I]f you find the state has not proven beyond a reasonable doubt that
those aggravating circumstances outweigh the mitigating factors, would you in fact
as required * * * sign a verdict for one of those life options?” He replied that he
would do so.
       {¶ 67} Defense counsel later asked about a murderer who killed
“intentionally * * * after deliberation” and without justification or excuse: “For that
guilty murderer, in your opinion—not what does the law require, but in your
opinion—is the death penalty the only appropriate penalty without regard to any
mitigation?” The prospective juror said, “Yes.” Later, however, defense counsel
asked: “[W]ill you in fact weigh aggravation and mitigation? Can you do that?”
He responded, “Yes.”
       {¶ 68} The trial court overruled Madison’s challenge for cause.            The
defense later exercised a peremptory challenge against prospective juror No. 34.
       {¶ 69} Like prospective juror No. 29, prospective juror No. 34 expressed a
personal view favoring a death sentence in certain circumstances yet also said that
he would consider mitigating factors, would engage in weighing, and would vote
for a life sentence if aggravation did not outweigh mitigation. These were not mere
“general promise[s] to be fair or to uphold the law.” Perez, 124 Ohio St.3d 122,
2009-Ohio-6179, 920 N.E.2d 104, at ¶ 171. The trial court’s decision to overrule




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the defense’s challenge for cause as to this prospective juror was based on
substantial testimony and was not an abuse of discretion.
                            g. Prospective Juror No. 37
       {¶ 70} Prospective juror No. 37 indicated on his questionnaire that he
believed in the death penalty for “most, but not all, murder cases.” In a number of
his other questionnaire responses, he stated that it was important to him to consider
the “details” of the case, including the defendant’s past history, before determining
a punishment.
       {¶ 71} On voir dire, the prospective juror said he would be able to consider
one of the life sentences. He understood that he was required to choose a life
sentence if the state failed to prove beyond a reasonable doubt that aggravating
circumstances outweighed mitigating factors.         He also said he would not
automatically vote for death without following the law given by the judge.
       {¶ 72} Defense counsel asked prospective juror No. 37 whether, in his
personal opinion, death would be the only appropriate penalty for a premeditated
killing, without regard to mitigation. The prospective juror replied: “[I]t would not
be the only * * * appropriate penalty.” Repeated questioning failed to change his
answer. Because this prospective juror said he would consider the mitigating
factors and would not automatically vote for death, the trial court did not err in
declining to excuse him for cause.
                                  h. Juror No. 40
       {¶ 73} On his questionnaire, juror No. 40 wrote that the death penalty “can
be necessary for some crimes,” that it is appropriate in some murder cases and not
in others, and that its appropriateness “really depends on each case [and] the
situation.”
       {¶ 74} On voir dire, juror No. 40 affirmed that he could consider and impose
a life sentence “if [the state] didn’t prove beyond a reasonable doubt the aggravating
circumstances outweigh the mitigating factors.”        Indeed, he said he had no




                                         20
                                January Term, 2020




preconceived idea of what sentence would be appropriate. Although he felt the
death penalty “should be on the table” for murder, he said he would consider other
sentences and would not automatically vote for death.
       {¶ 75} Stressing that he sought only juror No. 40’s personal opinion,
defense counsel asked if he believed that death should be the only appropriate
penalty, regardless of any mitigation, for an aggravated murder committed during
a kidnapping or rape. The juror replied, “From what you just described, yes.”
However, the trial court followed up and asked, “[I]f you found * * * that the
mitigating factors do outweigh the aggravating circumstances, could you consider
one of the life options?” The juror said that he “could consider it.”
       {¶ 76} The defense challenged juror No. 40 based on his answer to defense
counsel’s hypothetical. But the defense’s hypothetical had specifically asked for
the juror’s personal opinion: “Not a legal quiz, just in your heart, in your opinion.”
Even though the juror did indicate that in his personal opinion, death would be the
only appropriate penalty for the crime described, he also repeatedly affirmed that
he would engage in the statutory weighing and could consider imposing a life
sentence.
       {¶ 77} Juror No. 40’s voir dire responses as a whole indicate that he was
not biased in favor of the death penalty. The trial court did not abuse its discretion
in retaining him.
                                  i. Juror No. 43
       {¶ 78} Juror No. 43’s responses included a few contradictory answers. He
initially stated that he was opposed to capital punishment. But when defense
counsel asked whether, after hearing the facts of the case, he had formed the opinion
that “whoever did this * * * should get the death penalty,” he replied, “Yes,
definitely.” However, when counsel posed another version of the same question,
the juror said, “[T]hat never crossed my mind.” Counsel also asked for his personal
opinion—not for what he thought the law required—about whether a hypothetical




                                         21
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person guilty of three murders with kidnapping and rape should get the death
penalty. The juror said, “Yeah.”
       {¶ 79} The trial court subsequently asked the juror if he would impose a life
sentence if the aggravating circumstances did not outweigh the mitigating factors,
and he replied yes. The court questioned whether the juror would automatically
impose either death or a life sentence, and he said, “[It] depends on how it goes.”
Defense counsel also asked the juror whether he “like[d] the death penalty.” He
declined to say that he did; before he could decide, he said, he “ha[d] to see
everything first.”
       {¶ 80} Juror No. 43 stated that he would impose a life sentence if
aggravation did not outweigh mitigation. And the record does not indicate that he
would automatically vote for death. Thus, the court did not abuse its discretion in
retaining him.
                          2. Other Challenges for Cause
       {¶ 81} Madison identifies other reasons why he believes the court should
have excused juror Nos. 40 and 43 for cause. Juror No. 40, Madison argues, was
unable to state that he could give proper attention to the case, and juror No. 43 had
“difficulty reading and writing in English.”
       {¶ 82} Juror No. 40 told the trial court that he would give his full attention
to the case. He did admit the “possibility” that his job might distract him but
promised he “would do [his] best” to give the trial his full attention. No abuse of
discretion is evident.
       {¶ 83} Juror No. 43 did not fully complete his questionnaire and did not
sign it. He indicated privately to the court that he could not read or write. The
court offered to excuse him prior to his voir dire, and the state moved for excusal,
but the defense opposed it, arguing that it would violate the juror’s constitutional
right to serve. On voir dire, the juror explained that he was able to read, albeit
slowly, but his ability to read “certain things” was limited. After juror No. 43’s




                                         22
                                January Term, 2020




voir dire, the parties switched positions, with the defense challenging him for cause
due to his limited reading ability and the state opposing the challenge. The trial
court denied the challenge.
       {¶ 84} Neither R.C. 2945.25 nor Crim.R. 24(C) specifies that limited
reading ability is cause for disqualification. Thus, the trial court had discretion to
determine whether the juror was “unsuitable” under Crim.R. 24(C)(14). Nothing
in the record indicates an abuse of discretion.
       {¶ 85} To sum up, Madison has not shown that the trial court abused its
discretion in overruling any of the challenges for cause discussed in this
proposition. Madison’s second proposition of law is overruled.
                      C. Prosecution Challenges for Cause
       {¶ 86} In his third proposition of law, Madison contends that three
prospective jurors (Nos. 18, 38, and 45) were improperly excused for cause due to
their reservations about capital punishment.
       {¶ 87} A prospective juror may not be excluded for cause simply because
the prospective juror expresses reservations about imposing the death penalty.
State v. Keith, 79 Ohio St.3d 514, 519-520, 684 N.E.2d 47 (1997), citing
Witherspoon v. Illinois, 391 U.S. 510, 520-523, 88 S.Ct. 1770, 20 L.Ed.2d 776
(1968). However, a prospective juror may be excluded for cause if the prospective
juror’s beliefs about capital punishment “would prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and oath.”
Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); see also
State v. Rogers, 17 Ohio St.3d 174, 478 N.E.2d 984 (1985), paragraph three of the
syllabus, vacated on other grounds, Rogers v. Ohio, 474 U.S. 1002, 106 S.Ct. 518,
88 L.Ed.2d 452 (1985).
                           1. Prospective Juror No. 18
       {¶ 88} Prospective Juror No. 18 wrote on her questionnaire: “I don’t believe
anyone should be punished for a crime with death,” “I would never agree to impose




                                         23
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the death penalty,” “I would not agree to sentence anyone to death,” and “I believe
the taking of another person’s life is morally wrong.”
       {¶ 89} She said pretty much the same thing in voir dire. She could not
imagine any circumstance in which she would vote to impose the death penalty,
“could not morally ever feel right” in imposing a death sentence, “could never agree
to put somebody to death,” and “could not attach [her] name to” a death verdict.
When defense counsel inquired if she would “be able to consider * * * aggravation
and mitigation,” she replied, “Absolutely,” but immediately followed this with,
“[H]e could be guilty, but I still wouldn’t impose the death penalty.”
       {¶ 90} Prospective juror No. 18 consistently and categorically said that she
could never vote to impose a death sentence. The trial court justifiably concluded
that her views would substantially impair her ability to perform as a juror.
                           2. Prospective Juror No. 38
       {¶ 91} When asked if she could sign a verdict imposing the death penalty if
the state proved that aggravation outweighed mitigation, prospective juror No. 38
said, “No.” The trial court noted that she responded “quickly and firmly.” Asked
if she could set aside her views and follow the law, she answered, “No.” She said
she could not sign a death verdict under any circumstances. Like prospective juror
No. 18, this prospective juror unequivocally said she could not set her views aside
and follow the law in a capital case. The trial court did not abuse its discretion by
taking her at her word.
                           3. Prospective Juror No. 45
       {¶ 92} Prospective juror No. 45 was excused for cause after stating that he
would not follow the law if his conscience said otherwise. Madison contends that
it was error to excuse this prospective juror, but we need not consider his claim.
Had prospective juror No. 45 not been excused, he would have been an alternate
juror. No alternates were substituted for regular jurors in this case; hence, “[e]ven




                                         24
                                 January Term, 2020




if [the prospective juror] had not been excused, [he] would not have deliberated
[Madison’s] fate,” State v. Jenkins, 15 Ohio St.3d 164, 186, 473 N.E.2d 264 (1984).
        {¶ 93} Madison’s third proposition of law is overruled.
                          D. Religious-Freedom Claims
        {¶ 94} In his fourth proposition of law, Madison contends that the practice
of death-qualifying juries violates the Free Exercise and Establishment Clauses of
the First Amendment by excluding prospective jurors who are opposed to capital
punishment based upon their religious beliefs.
        {¶ 95} To start with, Madison makes no argument as to why he is entitled
to raise the religious-freedom rights of the prospective jurors. The United States
Supreme Court has allowed a defendant third-party standing to challenge on equal-
protection grounds the exclusion of petit jurors on the basis of race or sex. See
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); J.E.B. v.
Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). It has
not, however, addressed the issue whether a defendant possesses standing to assert
the rights of petit jurors in other contexts. Nevertheless, even assuming that
Madison has standing to raise the religious-freedom rights of excluded prospective
jurors, we have little difficulty rejecting his challenge.
        {¶ 96} The practice of death qualification is authorized by R.C. 2945.25(O),
which permits a trial court to excuse a prospective juror who “otherwise is
unsuitable for any other cause to serve as a juror.” See State v. Beuke, 38 Ohio
St.3d 29, 38, 526 N.E.2d 274 (1988). This court, as well as the United States
Supreme Court, has repeatedly upheld the “death qualification” process. State v.
Moore, 81 Ohio St.3d 22, 26, 689 N.E.2d 1 (1998); Lockhart v. McCree, 476 U.S.
162, 173, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). R.C. 2945.25(O) is a facially
neutral law of general applicability and is not designed to target religious conduct.
The death-qualification requirement applies neutrally to all prospective jurors,
regardless of the basis for their unwillingness to consider the death penalty. Thus,




                                           25
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the death-qualification procedure does not violate the Free Exercise Clause. See
Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 532-534, 542-
545, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). Nor is there anything in the practice
that could be said to violate the First Amendment’s prohibition on government
action “respecting an establishment of religion.”
         {¶ 97} In addition to his constitutional claims, Madison argues that death
qualification of jurors violates the Religious Freedom Restoration Act (“RFRA”),
42 U.S.C. 2000bb-1. This argument is precluded by the holding of the United
States Supreme Court that RFRA may not constitutionally be applied to the states.
Boerne v. Flores, 521 U.S. 507, 519-536, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997).
         {¶ 98} Madison’s fourth proposition of law is overruled.
             III. COMPELLED PSYCHIATRIC EXAMINATION
         {¶ 99} Before trial, the defense retained two forensic psychologists to
evaluate Madison. The trial court also ordered Madison to submit to a pretrial
mental examination by a state-selected forensic psychiatrist. Dr. Steven Pitt
conducted the court-ordered examination and testified for the state in the penalty
phase.    During his testimony, portions of his video-recorded interview with
Madison were played.
         {¶ 100} In his 11th through 13th propositions of law, Madison challenges
the compelled psychiatric examination. Principally, he claims that ordering the
examination and admitting the resulting evidence violated the Fifth and Sixth
Amendments. He also makes an argument based on one of Ohio’s death-penalty
statutes, R.C. 2929.03(D)(1).
                             A. Factual Background
         {¶ 101} Before trial, the state moved to require Madison to submit to a
psychological evaluation. The state asserted that Madison had retained multiple
psychological experts and that it anticipated that these experts would testify about
Madison’s psychological state before and after the murders.




                                         26
                                January Term, 2020




       {¶ 102} In response, Madison claimed that he had “not given pre-trial notice
of any intent to put his mental state in issue,” that “neither his competency, nor his
sanity or mens rea will be an issue” in either phase, and that he was “not putting his
state of mind in issue.”      Madison contended that the state would have “no
psychiatric evidence to rebut.” Nevertheless, Madison “reserve[d] the right to
present expert psychological evidence * * * in mitigation that does not call into
question his mental state.”
       {¶ 103} At a subsequent hearing, the state reiterated its request for a court-
ordered mental examination. The defense argued that such an order would violate
the Fifth Amendment and asserted: “We are not placing [Madison’s] mental state
into issue in either the trial or the mitigation phase.” The state rejoined that a
defense psychological report it had received in discovery indicated that defense
experts had found “brain damage,” a claim the state argued it could not rebut
without an additional examination. The defense denied that it was “claiming brain
damage” but conceded that its experts had stated that early childhood abuse causes
“changes in the brain” of the abused person.
       {¶ 104} The trial court asked defense counsel whether they intended to use
“brain damage as a mitigating factor, should we get there.” Counsel ultimately
stated that they “anticipate[d]” using it in the penalty phase.
       {¶ 105} The trial court granted the state’s motion to have Madison
evaluated by Dr. Pitt. But the court limited the examination to Madison’s brain
damage and prohibited questioning about the facts and circumstances of this
particular case. The defense took an interlocutory appeal to the Eighth District
Court of Appeals, which stayed the examination during the appeal. The Eighth
District then affirmed the trial court’s judgment. State v. Madison, 8th Dist.
Cuyahoga No. 101478, 2015-Ohio-4365, appeal not accepted, 144 Ohio St.3d
1505, 2016-Ohio-652, 45 N.E.3d 1050.




                                          27
                              SUPREME COURT OF OHIO




        {¶ 106} After the Eighth District’s decision, Dr. Pitt resumed his interview
with Madison, which had begun prior to the stay. Defense counsel sought to be
present during the interview to ensure that the limits set by the trial court’s order
were respected, but the trial court denied this request.
        {¶ 107} During the penalty phase, two defense experts, Drs. Daniel L.
Davis and Mark D. Cunningham, testified that Madison’s childhood environment
included a number of adverse factors—including “neurodevelopmental factors”
such as abuse, neglect, harsh discipline, and head trauma—that are correlated with
a high risk of negative outcomes, including criminal or violent behavior. They also
testified that these neurodevelopmental factors have a physical effect on the
“wiring” of the brain itself: its structure, chemistry, and electrical activity.
        {¶ 108} Dr. Davis explained that the brain does not finish developing until
a person is 24 or 25 years old. According to Dr. Davis, early exposure to abuse and
trauma results in negative alterations to the brain’s structure and chemistry. Dr.
Cunningham also testified about the effect of abuse and other negative childhood
experiences on the brain’s physiology.
        {¶ 109} The state introduced Dr. Pitt’s testimony in rebuttal. He diagnosed
Madison as having antisocial-personality disorder. Dr. Pitt’s opinion was that
Madison’s childhood did not cause him to commit the murders, and he rejected the
idea that Madison’s ability to make choices in life was limited by his background.
A video recording of his examination of Madison was admitted into evidence and
portions of it were shown to the jury.
                                B. Madison’s Claims
        {¶ 110} Madison contends that the trial court erred by ordering him to
submit to Dr. Pitt’s mental examination and admitting evidence derived from that
examination. He argues that (1) implicit within Ohio’s death-penalty statute, R.C.
2929.03(D)(1), is a broad policy prohibiting the use of such examinations, (2) the
compelled examination in this case violated the Fifth Amendment because he did




                                           28
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not place his mental state in issue, (3) ordering the examination unconstitutionally
forced him to choose between his Fifth Amendment right against self-incrimination
and his Eighth Amendment right to present mitigating evidence, (4) his Sixth
Amendment right to counsel was violated because his counsel lacked adequate
advance notice of the examination’s scope, and (5) his right to counsel was violated
because counsel was not present for the examination.




                                        29
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                              1. R.C. 2929.03(D)(1)
        {¶ 111} In his 11th proposition of law, Madison argues that the structure of
Ohio’s death-penalty statutes limits the state’s ability to force a death-eligible
defendant to respond to questions unless the defendant chooses to do so. For
support, he chiefly relies on language in R.C. 2929.03(D)(1), which provides for
the preparation of presentence-investigation reports and psychiatric reports for
purposes of mitigation in capital cases at the request of the defendant. See also
R.C. 2947.06. Specifically, he relies on one sentence within R.C. 2929.03(D)(1):
“A pre-sentence investigation or mental examination shall not be made except on
the request of the defendant.” He also points to another part of R.C. 2929.03(D)(1)
that allows a capital defendant to make an unsworn statement in the penalty phase
without being subjected to cross-examination. Tying these provisions together, he
infers a “broad policy” that capital defendants may not be “forc[ed] * * * to respond
to questions.”
        {¶ 112} The problem with this argument is that the mental examination to
which Madison objects was not done pursuant to R.C. 2929.03(D)(1) but rather to
allow the state to provide rebuttal evidence. The prohibition in R.C. 2929.03(D)(1)
applies only to presentence investigations and medical examinations done pursuant
to that section. We find nothing in R.C. 2929.03(D)(1) that bars a trial court from
ordering a psychiatric examination of a defendant for the purpose of rebutting
psychiatric evidence that the defendant intends to introduce. And we decline
Madison’s invitation to craft a statutory prohibition based on speculation about
legislative intent.
                               2. Fifth Amendment
        {¶ 113} Madison also contends in his 11th proposition of law that a
defendant can be compelled to undergo a state-requested psychiatric examination
only when he intends to introduce psychiatric evidence that places his state of mind
directly at issue. Although he says he did not place his mental state at issue, he




                                         30
                                January Term, 2020




introduced extensive expert testimony during the penalty phase that his background
and childhood experiences affected the physical structure of his brain, limited his
ability to make choices, and exposed him to a high risk of negative life outcomes.
          {¶ 114} A defendant “who neither initiates a psychiatric evaluation nor
attempts to introduce any psychiatric evidence, may not be compelled to respond
to a psychiatrist if his statements can be used against him at a capital sentencing
proceeding.” Estelle v. Smith, 451 U.S. 454, 468, 101 S.Ct. 1866, 68 L.Ed.2d 359
(1981).     However, “a different situation arises where a defendant intends to
introduce psychiatric evidence at the penalty phase.” Id. at 472. When a defendant
presents expert testimony from a psychiatrist who has examined the defendant, the
prosecution is entitled to rebut that testimony by presenting testimony from an
expert who has also examined the defendant. In those circumstances, a compelled
mental examination of the defendant does not violate the Fifth Amendment. See
Buchanan v. Kentucky, 483 U.S. 402, 422-424, 107 S.Ct. 2906, 97 L.Ed.2d 336
(1987); Kansas v. Cheever, 571 U.S. 87, 93-95, 134 S.Ct. 596, 187 L.Ed.2d 519
(2013); State v. Goff, 128 Ohio St.3d 169, 2010-Ohio-6317, 942 N.E.2d 1075, ¶ 58.
          {¶ 115} Buchanan, Cheever, and Goff were not capital cases, but several
courts have concluded that the rule of Buchanan and Cheever applies when the
defense presents psychiatric testimony in the penalty phase of a capital case. See
Williams v. Lynaugh, 809 F.2d 1063, 1068 (5th Cir.1987); State v. Fitzgerald, 232
Ariz. 208, 303 P.3d 519, ¶ 44-45 (2013); Soria v. State, 933 S.W.2d 46, 55
(Tex.Crim.App.1996); State v. Ross, 269 Conn. 213, 295-296, 849 A.2d 648
(2004); Lockett v. State, 2002 OK CR 30, 53 P.3d 418, ¶ 25-26; see also Giarratano
v. Procunier, 891 F.2d 483, 488 (4th Cir.1989) (“Giarratano’s introduction of
psychiatric evidence for the purpose of mitigation enabled the prosecution to
introduce psychiatric evidence, including that derived from an examination of
Giarratano, to show future dangerousness”); Lockett v. Trammell, 711 F.3d 1218,
1242 (10th Cir.2013) (state court reasonably held that capital defendant “put his




                                        31
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mental health at issue” by presenting psychological evidence in the penalty phase);
Dillbeck v. State, 643 So.2d 1027, 1030 (Fla.1994).
       {¶ 116} Madison tries to distinguish Buchanan and Cheever by arguing that
they apply only when the defendant alleges that he has a “mental disease or defect”
or a “mental condition” that implicates his mens rea, mental capacity to commit a
crime, or ability to premeditate or when he seeks to establish the existence of a
“mental disease or defect” mitigating factor under R.C. 2929.04(B)(3).
       {¶ 117} Madison’s narrow reading of Buchanan and Cheever makes little
sense. Cheever explains that a rule shielding the defendant from examination by
the state’s expert “would undermine the adversarial process” by depriving the state
of “the only effective means of challenging” the defendant’s psychological experts.
Cheever, 571 U.S. at 94, 134 S.Ct. 596, 187 L.Ed.2d 519. Buchanan and Estelle
express similar concerns. Buchanan, 483 U.S. at 422-423, 107 S.Ct. 2906, 97
L.Ed.2d 336; Estelle, 451 U.S. at 465, 101 S.Ct. 1866, 68 L.Ed.2d 359.
       {¶ 118} This concern is not confined to cases in which psychiatric evidence
is used in adjudicating guilt, as in Buchanan and Cheever. Nor is it confined to
cases in which the defense seeks to show the existence of a “mental disease or
defect” mitigating factor under R.C. 2929.04(B)(3). Instead, Cheever’s reasoning
logically applies to any case in which a defendant introduces evidence derived from
a defense expert’s mental examination of the defendant.
       {¶ 119} In such a case, the mental issue is one that the defendant has
“ ‘interjected into the case,’ ” Buchanan at 422, quoting Estelle at 465. And
prohibiting examination by the state’s expert would undermine the adversarial
process, because “the only effective means of challenging” the testimony of the
defendant’s expert is “testimony from an expert who has also examined him.”
Cheever at 94.
       {¶ 120} We conclude that in a capital case, when the defendant
demonstrates an intention to use expert testimony from a mental examination in the




                                        32
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penalty phase, the Fifth Amendment permits the trial court to order that the
defendant submit to a mental examination by an expert of the state’s choosing.
Further, when the defense uses expert testimony from a mental examination in the
penalty phase, the state may rebut that evidence by presenting expert testimony
derived from the court-ordered mental examination. Thus, we reject Madison’s
Fifth Amendment claim.
       {¶ 121} Madison also contends in his 11th proposition that by ordering him
to submit to the examination by the state’s expert, the trial court forced him to
forfeit his Fifth Amendment right to remain silent as a condition of exercising his
Eighth Amendment right to obtain and present mitigating evidence in a capital case.
Relying upon Simmons v. United States, 390 U.S. 377, 393-394, 88 S.Ct. 967, 19
L.Ed.2d 1247 (1968), Madison asserts that he cannot be compelled to forfeit one
constitutional right in order to assert another.
       {¶ 122} Simmons simply held that a defendant’s testimony in support of a
motion to suppress on Fourth Amendment grounds is inadmissible against him on
the issue of guilt at trial. “In these circumstances,” the court explained, “we find it
intolerable that one constitutional right should have to be surrendered in order to
assert another.” (Emphasis added.) Id. at 394.
       {¶ 123} But Simmons did not hold that a defendant may never have to
choose between the exercise of constitutional rights. Indeed, the United States
Supreme Court has cautioned against giving Simmons a “broad thrust.” McGautha
v. California, 402 U.S. 183, 212-213, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971),
vacated in part on other grounds sub nom. Crampton v. Ohio, 408 U.S. 941, 92
S.Ct. 2873, 33 L.Ed.2d 765 (1972). “ ‘Difficult judgments’ ” are sometimes
required, and although a defendant may have a constitutional right to follow
whichever course he chooses, “the Constitution does not by that token always
forbid requiring him to choose.” Id. at 213, quoting McMann v. Richardson, 397
U.S. 759, 769, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Instead, a court must ask




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“whether compelling the election impairs to an appreciable extent any of the
policies behind the rights involved.” Id. In this instance, it does not.
       {¶ 124} The right to present mitigating evidence in a capital case stems
from the conclusion of the United States Supreme Court that the Eighth
Amendment requires that before a defendant may be sentenced to death there must
be “an individualized determination on the basis of the character of the individual
and the circumstances of the crime.” (Emphasis sic.) Zant v. Stephens, 462 U.S.
862, 879, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). When a defendant opts to submit
psychiatric evidence, the principle of individualized capital sentencing is not
undermined by requiring the defendant to submit to an examination by a state expert
so that the state has a fair chance to rebut the defense evidence.
       {¶ 125} Nor does such an examination undermine the policies of the Fifth
Amendment privilege against compelled self-incrimination. To the contrary,


       [t]he admission of this rebuttal testimony harmonizes with the
       principle that when a defendant chooses to testify in a criminal case,
       the Fifth Amendment does not allow him to refuse to answer related
       questions on cross-examination. A defendant “has no right to set
       forth to the jury all the facts which tend in his favor without laying
       himself open to a cross-examination upon those facts.” * * * When
       a defendant presents evidence through a psychological expert who
       has examined him, the government likewise is permitted to use the
       only effective means of challenging that evidence: testimony from
       an expert who has also examined him.


Cheever, 571 U.S. at 94, 134 S.Ct. 596, 187 L.Ed.2d 519, quoting Fitzpatrick v.
United States, 178 U.S. 304, 315, 20 S.Ct. 944, 44 L.Ed. 1078 (1900).
       {¶ 126} Madison’s 11th proposition of law is overruled.




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                                3. Sixth Amendment
                         a. Notice of Scope of Examination
        {¶ 127} The Sixth Amendment right to counsel requires that defense
counsel be given prior notice of the nature and scope of a state-sponsored
psychiatric examination. See Powell v. Texas, 492 U.S. 680, 681, 109 S.Ct. 3146,
106 L.Ed.2d 551 (1989); Estelle, 451 U.S. at 471, 101 S.Ct. 1866, 68 L.Ed.2d 359,
citing Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932). In
his 13th proposition of law, Madison contends that Dr. Pitt’s examination exceeded
the limits set by the trial court and that, as a result, his counsel were not notified of
the full scope of the examination.
        {¶ 128} The trial court’s order approving the examination provided: “State
may not inquire into the facts and circumstances of the case. Examination only
relates to the brain damage of defendant.” The interview was recorded and the
portions that were played for the jury covered several topics: Madison’s childhood
and adolescence, his current incarceration, his drug and alcohol use during the
period leading up to his arrest, whether he was sexually abused as a child, and his
self-evaluation of character defects and weakness.
        {¶ 129} Though Dr. Pitt’s testimony did not tie all of these areas of inquiry
directly to Madison’s claim of brain damage, there is nothing in the record that
establishes that Dr. Pitt exceeded the scope of the court’s order.            Questions
regarding Madison’s childhood, mental status, substance abuse, and self-evaluation
could all be relevant to Madison’s claim that he suffered from physiological
changes to his brain. And the recordings make clear that Dr. Pitt adhered to the
court’s admonition not to inquire into the facts of the case. Thus, Madison has
failed to demonstrate that his counsel did not receive adequate notice of the scope
of the examination, and we overrule his 13th proposition of law.




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                   b. Presence of Counsel during Examination
       {¶ 130} In his 12th proposition of law, Madison argues that the Sixth
Amendment entitles a defendant to have his attorney present during a psychiatric
examination. In Estelle, the United States Supreme Court held that a defendant has
a right to the assistance of counsel “before submitting” to a psychiatric interview.
451 U.S. at 469, 101 S.Ct. 1866, 68 L.Ed.2d 359. But the court specifically
disavowed any implication of a right to have counsel present during the interview.
Id. at 471, fn.14. Following Estelle, courts have widely determined that the Sixth
Amendment does not include a right to have counsel present during a compelled
psychiatric interview. See, e.g., United States v. Byers, 740 F.2d 1104, 1115-1122
(D.C.Cir.1984) (plurality opinion); Re v. Snyder, 293 F.3d 678, 682 (3d Cir.2002);
State v. Martin, 950 S.W.2d 20, 26-27 (Tenn.1997) (citing cases). We agree and
overrule Madison’s 12th proposition of law.
                         IV. EVIDENTIARY ISSUES
                          A. The Interrogation Videos
       {¶ 131} During the guilt phase, the state introduced video recordings of
portions of Madison’s interrogation by the police. In his sixth proposition of law,
Madison contends that these videos contained officers’ statements that should have
been excluded as inadmissible, including accusations of lying and prejudicial
reflections on Madison’s character. Madison forfeited most of these claims, and
those he preserved do not amount to reversible error.
       {¶ 132} Madison repeatedly told detectives that he did not remember much
about the murders due to his excessive drinking and drug use.          During one
interview, Detective Nate Sowa expressed doubt about this, pointing out to
Madison that after spending three or four days in jail, he was “exhibiting no signs”
of withdrawal. Detective Raymond Diaz added that people with drinking problems
are “a wreck” after a day or two without alcohol. Madison admitted, “I can’t really
explain that.” Madison objected to the jury hearing Sowa’s and Diaz’s statements




                                        36
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because they were unqualified to give opinions on the subject of alcohol
dependence. The trial court overruled the objection but instructed the jury that the
detectives “are not experts in alcohol dependence.” Madison later objected to the
jury hearing a different detective’s statement questioning his claims of alcohol and
drug abuse, and the trial court overruled that objection as well.
       {¶ 133} We find no error. It is common knowledge that heavy drinkers
often suffer withdrawal symptoms when they are forced to go without alcohol.
Further, the statements made by Sowa and Diaz provided useful context to
Madison’s admission that he could not explain why he was not going through
withdrawal. And the statement made by the other detective was not harmful to
Madison in view of other evidence admitted on this issue. In addition, any possible
prejudice was dispelled by the trial court’s instruction.
       {¶ 134} Madison points to several other police statements that he says
should have been redacted as unfairly prejudicial.          These include additional
skeptical comments about his claims of heavy drug and alcohol use, attempts to
find out how many victims he killed, entreaties to cooperate and show remorse, and
a detective’s suggestion that Madison got sexually aroused by killing women.
       {¶ 135} The record does not show any objection to these statements at trial.
Thus, Madison can prevail only by showing plain error. To prevail, he must show
that an error occurred, that the error was plain, and that but for the error the outcome
of the trial clearly would have been otherwise. State v. Mammone, 139 Ohio St.3d
467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 69.
       {¶ 136} The likelihood of prejudice here is low. “[T]he jury was fully
aware * * * [that] the officers were engaged in the interrogation of a criminal
suspect. In this context, the impact on the average jury would have been much less
than the same statements made by a police officer on the witness stand at trial.”
State v. Kidder, 32 Ohio St.3d 279, 285, 513 N.E.2d 311 (1987).




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        {¶ 137} Finding no plain error, we overrule Madison’s sixth proposition of
law.
                            B. Unfairly Prejudicial Evidence
        {¶ 138} In his seventh proposition of law, Madison contends that the trial
court admitted unfairly prejudicial evidence during the guilt phase in violation of
Evid.R. 403(A), which requires a trial court to exclude relevant evidence “if its
probative value is substantially outweighed by the danger of unfair prejudice, of
confusion of the issues, or of misleading the jury.”
        {¶ 139} In his videotaped interview, officers asked Madison multiple times
if they would find more victims than the three they had already found, and Madison
replied that he did not know. Madison argues that these statements had no probative
value and were unfairly prejudicial because they suggested that he may have
committed other murders.
        {¶ 140} Madison concedes that he “did not specifically object” to these
questions. But he argues that he preserved this claim by asking the trial court, just
before the video was played, to exclude references to “unsolved homicides.” (The
state agreed to this request, and the trial court granted it.) The statements that
Madison now claims were improper, however, did not involve unsolved homicides
and thus were outside the scope of Madison’s request. Thus, Madison’s failure to
object at trial forfeits this argument, absent plain error. We find no plain error.
        {¶ 141} Quiana Baker, a friend of Madison’s, testified that Madison had
told her he was “aggravated” with women “acting like they don’t want to fuck” and
that they made him “want to * * * Anthony Sowell a bitch.”1 Madison’s objection
at trial was overruled. The admission of this statement was not error. Madison’s
statement that he wanted to “Anthony Sowell” a woman was relevant to show intent
and prior calculation and design. And when considered in the context of the other

1. Anthony Sowell is a Cleveland serial killer who was convicted of killing 11 women and sentenced
to death. See State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, 71 N.E.3d 1034, ¶ 1-3.




                                               38
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evidence presented at trial, its probative value was not outweighed by the danger of
unfair prejudice.
       {¶ 142} Another friend, Eugenia Thomas, testified that Madison had once
told her he “liked submissive women” and that Madison had “talked about hitting
women and tying them up” in a sexual context. Defense objections to this
testimony were overruled. We find no error. All three victims were found with
bindings around their necks and legs. The fact that Madison enjoyed tying up
women was directly relevant to the murders.         It also supported the sexual-
motivation specifications, R.C. 2941.147(A), which required proof that the murders
were committed with “a purpose to gratify the sexual needs or desires of the
offender,” R.C. 2971.01(J).
       {¶ 143} Thomas also testified that sometimes during phone conversations,
Madison would tell her he was “watching the bitches.” She further recounted that
Madison once told her he wanted to kill the mother of his children because “she
wouldn’t let him see his kids.” Madison concedes that he did not object to this
testimony but claims that it was plain error, “especially with respect to the
sentencing phase.”
       {¶ 144} We disagree. Admitting this testimony was not plain error as to
either phase.   As to the guilt phase, the evidence of Madison’s guilt was
overwhelming. As to the penalty phase, once Madison had been convicted of
actually killing three women, the information that he had talked about killing
another woman or that he sometimes used improper language to refer to women is
not sufficiently prejudicial to undermine confidence in the jury’s sentencing
verdict.
       {¶ 145} The video footage of the interrogations played for the jury included
a brief conversation between Madison and a female detective who brought him
coffee and shows Madison referring to the detective as “sweetheart” and telling her
to “be good.” Madison did not object at trial to this portion of the video. His




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argument that it was inherently prejudicial is unconvincing, and there was no plain
error.
         {¶ 146} Finally, the jury saw footage of Madison, alone in the interview
room, talking to himself, displaying anger, and using profanity. Madison did not
object at trial. He now accuses the state of using this incident to “demonize him.”
We find no plain error. The jury heard extensive evidence about the three murders;
if Madison was demonized in the eyes of the jury, it was not from a snippet of video
of him talking to himself.
         {¶ 147} Madison’s seventh proposition of law is overruled.
                             V. SENTENCING ISSUES
                         A. Exclusion of Mitigating Evidence
         {¶ 148} In his tenth proposition of law, Madison asserts that the trial court
excluded relevant mitigating evidence that he had a constitutional right to present.
See Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986);
Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982).
                          1. Testimony on Moral Culpability
         {¶ 149} Madison takes issue with the trial court’s ruling that Dr.
Cunningham could not testify about the concept of “moral culpability.” According
to the defense’s proffer at trial, Dr. Cunningham would have testified as follows:


         [T]he concept of moral culpability acknowledges [that] * * * we do
         not all arrive at our choices out of equivalent raw material. It
         follows that the degree of “blameworthiness” for an individual for
         criminal or even murderous conduct may vary depending on what
         factors and experiences shaped, influenced, or compromised that
         choice.
                   * * * The formative or limiting impact from any source of
         developmental damage * * * is relevant in the weighing of moral




                                          40
                                 January Term, 2020




       culpability.       An appraisal of moral culpability involves an
       examination of the degree to which the background and
       circumstances of the defendant influenced, predisposed, or
       diminished the defendant’s moral sensibilities and the exercise of
       * * * free will.


Madison also argues that Dr. Cunningham should have been allowed to testify
about United States Supreme Court decisions discussing the role of moral
culpability in capital sentencing.
       {¶ 150} Dr. Cunningham is a forensic psychologist. Morality is not within
his field of expertise. Neither is law. His opinion of what is “relevant in the
weighing of moral culpability” and what affects “the degree of ‘blameworthiness’
” would not have “relate[d] to matters beyond the knowledge or experience
possessed by lay persons,” Evid.R. 702(A). And any discussion of United States
Supreme Court decisions would have involved matters of law, and opinion
testimony on matters of law is generally inadmissible. See, e.g., Sikorski v. Link
Elec. & Safety Control Co., 117 Ohio App.3d 822, 831, 691 N.E.2d 749 (8th
Dist.1997). The trial court did not abuse its discretion by excluding this testimony.
           2. Connection between Developmental Factors and Choice
       {¶ 151} Madison maintains that the trial court improperly excluded
testimony about the connection between adverse developmental factors and a
person’s capacity to make choices. He cites three instances when the trial court
sustained objections to Dr. Cunningham’s use of the term “choice.” But Dr.
Cunningham did explain to the jury multiple times that the adverse developmental
factors in Madison’s history limited his range of choices. And Dr. Cunningham
testified at the close of his direct examination about a person who has such a
background: “You get a choice, you just don’t get the same choice. You get a
choice that rests on all the damage of that history.” We find no error.




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           3. Evidence about Certain Adverse Developmental Factors
       {¶ 152} Madison asserts that the trial court improperly excluded evidence
of certain adverse developmental factors in Madison’s background.
       {¶ 153} First, he contends that the trial court erred by excluding PowerPoint
slides about heritable traits in Madison’s family tree such as alcoholism and
personality disorders. The slides were excluded because Madison’s counsel had
failed to make timely disclosure of them to the prosecution.
       {¶ 154} Further, Madison was not barred from presenting evidence about
the heritability of alcoholism and personality disorders and their prevalence among
his forebears. Dr. Cunningham testified at length about those subjects. Only the
slides were excluded. Excluding the slides while allowing the testimony the slides
illustrated did not violate Madison’s Eighth Amendment right to present mitigation.
       {¶ 155} Second, he complains that the trial court did not let Dr.
Cunningham testify about the effects of head injuries on Madison. The record,
however, demonstrates that Dr. Cunningham testified that a head injury is an
adverse neurodevelopmental factor and that during early childhood and
adolescence, Madison sustained a number of them.
       {¶ 156} Third, Madison contends that the trial court erred when it did not
let Dr. Cunningham discuss an incident when Madison was choked at age 10 or 11;
the trial court excluded this testimony because the incident did not involve any of
Madison’s relatives. The significance of the choking incident is that hypoxia, or
“oxygen deprivation to the brain,” and anoxia, or “oxygen cutoff,” are adverse
neurodevelopmental factors, as Dr. Cunningham testified.
       {¶ 157} Madison, however, was not prevented from presenting evidence
concerning the possible effect of hypoxia and anoxia on his brain development. Dr.
Cunningham testified about Madison’s allegations that his mother had more than
once choked him until he passed out. Therefore, any error in the trial court’s ruling
is harmless.




                                         42
                                January Term, 2020




       {¶ 158} Fourth, Madison alleges that the trial court erred because it did not
let Dr. Cunningham testify about certain instances of “sexually perverse behavior
in [Madison’s] home” (such as his brother being molested) unless Madison was
aware of the behavior. Madison fails to explain what was wrong with this ruling.
Dr. Cunningham testified that a child can be damaged when he sees other children
being abused; he did not say that a child is damaged by abuse of others even when
the child is unaware that abuse is occurring. The trial court could reasonably
determine that this testimony was irrelevant to mitigation.
       {¶ 159} Finally, Madison complains that the trial court excluded numerous
PowerPoint slides as repetitive. But Madison does not dispute that the slides were
repetitive, and the trial court was not required to admit cumulative evidence.
Sheppard v. Bagley, 657 F.3d 338, 346 (6th Cir.2011).
       {¶ 160} Madison’s tenth proposition of law is overruled.
            B. Unfairly Prejudicial Evidence in the Penalty Phase
       {¶ 161} In his 14th proposition of law, Madison contends that the state
presented unfairly prejudicial evidence in the penalty phase.
       {¶ 162} First, Madison accuses the state of presenting inflammatory
testimony about his “bad character.” He complains that Dr. Pitt testified that he has
an antisocial-personality disorder. Madison does not, however, explain why it is
improper for a psychiatrist to make such a diagnosis of a defendant.
       {¶ 163} Madison also maintains that Dr. Pitt improperly described him as
“depraved” and “twisted.”       But it was the defense that first brought those
descriptions to the jury’s notice. It is true that Dr. Pitt’s report described Madison
as “depraved” and “twisted,” but that report was not admitted into evidence. The
word “depraved” was placed before the jury during defense counsel’s direct
examination of Madison’s own expert witness, Dr. Cunningham. Dr. Cunningham
testified on direct that he had read and evaluated Dr. Pitt’s report, of which he was
quite critical. Defense counsel asked whether the term “depraved individual” is




                                         43
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used in the Diagnostic and Statistical Manual of Mental Disorders. 2                          Dr.
Cunningham said it is not and criticized Dr. Pitt for using the term in his report.
The prosecutor brought up Dr. Pitt’s use of “depraved” only after the defense had
introduced that term. Similarly, in an effort to discredit Dr. Pitt’s testimony, the
defense cross-examined him at length on his report’s use of the word “twisted.”
        {¶ 164} Madison also takes issue with the state’s introduction of testimony
that Madison asked a pen pal to send him pictures of women. Dr. Cunningham,
however, had already testified regarding Madison’s “disturbed sexuality.”
Madison further contends that the state improperly introduced testimony that
Madison has a “victimization mentality,” does not accept responsibility for his acts,
and is deceitful. But all these matters were relevant to Madison’s antisocial-
personality disorder. The same is true of evidence regarding Madison’s lack of
“regret” or “remorse” for the murders. (Expert testimony in the penalty phase
established that the criteria for antisocial-personality disorder include deceitfulness,
aggressiveness, irresponsibility, and indifference to harming others.)
        {¶ 165} Madison contends that the state improperly introduced evidence
that he is “fully responsible” for his conduct and has no mental disease or defect.
But the defense had previously put on evidence that Madison is not fully
responsible, because his background diminished his ability to make choices.
Indeed, this was the major theme of his penalty-phase defense in general and Dr.
Cunningham’s testimony in particular. The state was entitled to cross-examine on
that point.
        {¶ 166} Madison contends that Dr. Pitt exceeded the scope of the trial
court’s order in his examination of Madison. We have already rejected that claim
in overruling Madison’s 12th and 13th propositions of law.



2. Dr. Cunningham explained that the Diagnostic and Statistical Manual of Mental Disorders is the
classification system of psychological disorders used by American psychologists and psychiatrists.




                                               44
                                 January Term, 2020




       {¶ 167} Madison also asserts that the state presented excessive evidence of
the circumstances of the crimes and improperly referred to “irrelevant details” of
his prior drug and attempted-rape convictions but offers no specifics to support
these claims.
       {¶ 168} Finally, Madison complains that the state described him as a serial
killer. Madison was charged with and found guilty of killing three women on three
different dates as part of a single course of conduct. The term “serial killer” aptly
describes Madison’s conduct. Counsel for both sides are entitled to wide latitude
in closing argument, State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23
N.E.3d 1023, ¶ 197, and “a prosecutor may denounce the defendant’s wrongdoing,”
State v. Keene, 81 Ohio St.3d 646, 666, 693 N.E.2d 246 (1998). We see no reason
why a prosecutor may not call a serial killer a serial killer.
       {¶ 169} Madison’s 14th proposition of law is overruled.
                      C. Trial Court’s Sentencing Opinion
       {¶ 170} In its sentencing analysis, the trial court assigned no mitigating
weight to Madison’s relationship with his children, “minimal weight” to his
adaptability to prison, and “some very slight weight” to his history of substance
abuse. The court also considered his history as a victim of abuse and paternal
abandonment as well as the “toxic culture” and “intergenerational dysfunction” of
his family; the court gave his background and childhood “greater weight” than other
factors but “not * * * great weight.”
       {¶ 171} In his 17th proposition of law, Madison contends that the trial
court’s sentencing opinion violated the Eighth Amendment, because it
“unreasonably discount[s]” mitigating evidence—i.e., because it assigns no weight
or insufficient weight to mitigating factors.
       {¶ 172} The United States Supreme Court in Eddings held that the
sentencer in a capital case may not “refuse to consider, as a matter of law, any
relevant mitigating evidence.” (Emphasis sic.) 455 U.S. at 114, 102 S.Ct. 869, 71




                                          45
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L.Ed.2d 1. But Eddings does not preclude a court from considering mitigating
evidence and determining that it deserves no weight. State v. Davis, 139 Ohio St.3d
122, 2014-Ohio-1615, 9 N.E.3d 1031, ¶ 59; see also Harris v. Alabama, 513 U.S.
504, 512, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995).
       {¶ 173} Madison also argues that the trial court improperly “discounted the
mitigation” by “view[ing] the evidence as not establishing a causal connection to
Madison’s conduct in committing the murders.” But nothing in the trial court’s
opinion discusses a lack of causal connection between the claimed mitigating
factors and the murders. In any event, Madison’s claim does not state an Eighth
Amendment violation. “Whether mitigating factors help to explain the murder is
obviously relevant to the weight of those factors and may be considered by the
sentencer in assigning weight to them.” State v. Roberts, 150 Ohio St.3d 47, 2017-
Ohio-2998, 78 N.E.3d 851, ¶ 70.
       {¶ 174} Madison’s 17th proposition of law is overruled.
                         D. Refusal of Mercy Instruction
       {¶ 175} Madison argues in his ninth proposition of law that the trial court
erred by denying his requests that the jury be instructed to consider “mercy.” But
mercy is not a mitigating factor. State v. Belton, 149 Ohio St.3d 165, 2016-Ohio-
1581, 74 N.E.3d 319, ¶ 88. The proposition is overruled.
                    VI. PROSECUTORIAL MISCONDUCT
                                    A. Voir Dire
       {¶ 176} In his fifth proposition of law, Madison contends that the
prosecutor engaged in misconduct during jury selection. He accuses the prosecutor
of “employ[ing] a strategy to assert multiple groundless objections” to the defense’s
voir dire questions in order to “obstruct” counsel’s efforts to identify the jurors who
were excludable under Morgan, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d
492, as predisposed to impose the death penalty. He offers no specific examples of




                                          46
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actual “groundless objections” but incorporates by reference many of the arguments
from his first and second propositions of law.
       {¶ 177} It is true that the prosecutor made numerous objections, but
Madison was not denied an adequate opportunity to identify Morgan-excludable
jurors, and no such jurors were seated. Nothing in the record supports Madison’s
accusation that the prosecutor deliberately made groundless objections as a
strategy, and the prosecutor’s conduct in this regard did not render Madison’s trial
unfair, see Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1992)
(the touchstone of analysis in considering allegations of prosecutorial misconduct
“is the fairness of the trial, not the culpability of the prosecutor”). Madison’s fifth
proposition of law is overruled.
                          B. “Serial Killer” References
       {¶ 178} Madison’s eighth proposition of law posits that it was misconduct
for the prosecution to refer to him as a “serial killer.” As we have discussed above,
this appellation was accurate, relevant, and in no way improper. Madison’s eighth
proposition of law is overruled.
                          C. Other Misconduct Claims
       {¶ 179} In his 15th proposition of law, Madison contends that the state
committed prosecutorial misconduct in both the guilt and penalty phases.
                                   1. Guilt Phase
       {¶ 180} As to the guilt phase, Madison first claims the prosecution
improperly introduced the testimony of the family members of the victims, because
it “went beyond what was proper or necessary” to prove relevant matters. He cites
two such witnesses: Shirellda Terry’s sister, Britney Terry, and her stepfather,
Derrick Minor.
       {¶ 181} Britney testified without objection that her sister enjoyed praise
dancing. When the state asked her to describe her relationship with her sister,




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however, the trial court sustained a defense objection, and the question went
unanswered. Thus, no error occurred.
       {¶ 182} Minor testified without objection about Terry’s schooling, straight-
A average, participation in praise dancing, and employment. He said that she
worked from 7:30 a.m. to 4:00 p.m. but sometimes left early if there was no work
to do. He took her to school and to work, and she walked home from work. The
defense objected only when he testified that she loved “[the l]ibrary, reading,
poetry.”
       {¶ 183} The state argues that Minor’s testimony was not victim-impact
evidence but was relevant to establish Terry’s routine and route to and from work.
But Terry’s love of reading (the only item Madison objected to) was unrelated to
that purpose. However, this testimony was brief, unemotional, and insignificant;
any error here was harmless.
       {¶ 184} In his second, third, and fourth arguments under this proposition of
law, Madison asserts that the prosecutor committed misconduct by not redacting
the confession videos to eliminate the “improper statements” of detectives, by
introducing “inflammatory” evidence, and by calling him a “serial killer.” These
claims reiterate claims made in Madison’s sixth, seventh, and eighth propositions
of law, which we have rejected above.
       {¶ 185} Next, Madison contends that the prosecutor committed misconduct
in the guilt-phase closing argument by saying Madison was a “professional” killer
after he committed his second murder. But this was fair comment on the evidence.
Compare State v. Tibbetts, 92 Ohio St.3d 146, 168, 749 N.E.2d 226 (2001) (“like a
trained killer” was fair comment). He also complains that the prosecutor referred
to his comment about wanting to “Anthony Sowell a bitch.” However, as discussed
in relation to Madison’s seventh proposition of law, this statement was properly
introduced into evidence and, therefore, could be used in argument.




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       {¶ 186} Finally, Madison says that the prosecutor committed misconduct in
closing argument by arguing that he lacked remorse. It is true that Madison’s lack
of remorse was irrelevant to guilt. But the guilt-phase evidence was overwhelming,
so any error was harmless. Moreover, there is no carryover prejudice in the penalty
phase. Madison’s lack of remorse was discussed by expert witnesses in that phase,
as it was relevant to the diagnosis of antisocial-personality disorder.
                                  2. Penalty Phase
       {¶ 187} As to the penalty phase, Madison first argues that the prosecutor
unfairly emphasized the grotesque nature of the murders and the autopsy
photographs. In cross-examining Dr. Davis, the prosecutor described the crimes as
“grotesque” and asked Dr. Davis if he had looked at the autopsy photos. Both times
the trial court sustained defense objections. The prosecutor did not display or
describe the photos during the penalty phase. Any error stemming from these brief
incidents was harmless.
       {¶ 188} Madison also complains that the state used the cross-examination
of Dr. Cunningham “to make speeches and arguments” to the jury. Although he
provides record citations, he offers no specific examples or analysis. Cross-
examination is entitled to wide latitude, and its scope is within the trial court’s
discretion. State v. Garfield, 34 Ohio App.3d 300, 303, 518 N.E.2d 568 (11th
Dist.1986), citing State v. Huffman, 86 Ohio St. 229, 99 N.E. 295 (1912).
Moreover, prosecutorial misconduct constitutes reversible error only if it denies the
defendant a fair trial. Smith v. Phillips, 455 U.S. at 219, 102 S.Ct. 940, 71 L.Ed.2d
78. Madison fails to show either that the trial court abused its discretion or that the
alleged misconduct denied him a fair trial.
       {¶ 189} Next, Madison protests that the prosecutor improperly sought to
discredit his expert witnesses.     In cross-examining Dr. Davis, the prosecutor
suggested that he was “loyal to [his] client,” sought “strategic advantage,” and was
being “used as a tool to aid in [Madison’s] defense.” The trial court sustained




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objections to the “client” and “tool” questions, and instructed the jury to disregard
the “client” question. (Madison did not ask for a curative instruction regarding the
“tool” question.) No error occurred. See State v. Hale, 119 Ohio St.3d 118, 2008-
Ohio-3426, 892 N.E.2d 864, ¶ 182.
       {¶ 190} As for the “strategic advantage” question, Dr. Davis was hired by
the defense and the question seems a legitimate attempt to probe possible bias.
Hence, the trial court did not abuse its discretion by overruling Madison’s
objection.
       {¶ 191} Madison takes issue with a prosecution question to Dr. Davis
asking whether Dr. Cunningham was a “professional testifier.” But because the
trial court sustained his objection, no error occurred.
       {¶ 192} Madison also complains that the prosecutor in closing argument
attacked Dr. Cunningham’s testimony on the heritability of personality disorders
by saying, “There’s no heredity to murder. * * * [T]here’s no DNA to rape * * *.
There’s no DNA to murder. It’s a ridiculous proposition, and * * * it’s never been
even claimed by anybody * * * responsible that I’ve ever heard of, or irresponsible
for that matter, to my knowledge.” Madison did not object at trial and does not
attempt to show that plain error occurred. Hence, this claim is forfeited.
       {¶ 193} Madison accuses the prosecutor of making “groundless objections”
to his mitigating evidence. We have already rejected this claim in overruling
Madison’s tenth proposition of law.
       {¶ 194} Madison contends that the prosecutor improperly commented on
the defense’s failure to call certain witnesses in the sentencing phase, including
Madison’s mother. A defense objection was overruled when the prosecutor asked
Dr. Davis if he knew that Madison’s mother lived in the area and that “all they have
to do is subpoena her * * * and she can come right in here * * * and testify * * *.”
But the trial court sustained two later objections to similar questions. We find
nothing improper about the prosecutor’s questions.




                                          50
                                 January Term, 2020




        {¶ 195} Madison charges that the prosecutor disparaged him in front of the
jury.   On cross-examination, the prosecutor, referring to Madison, asked Dr.
Cunningham: “Do you see the guy here on the iPad looking at pictures of ladies
* * *?” The defense objected, and the trial court cautioned the prosecutor not to
refer to what Madison was doing and told the jury to disregard the question. The
defense later asked for a mistrial based on the prosecutor’s discussing “non-
evidentiary items.” The trial court denied the motion but instructed the jury that
“the defendant has no burden of proof, and the defendant is permitted to look at the
iPad during the course of this trial.”
        {¶ 196} The decision to grant or deny a mistrial lies in the trial court’s
discretion, and the court should grant one only when justice requires and a fair trial
is no longer possible. State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076, 75
N.E.3d 1185, ¶ 89. Madison does not explain how this incident rendered a fair trial
impossible or why the trial court’s instructions were insufficient to deal with any
unfair prejudice.
        {¶ 197} Madison complains that in discussing his prior attempted-rape
conviction, the prosecutor improperly called him a “con artist.” He also contends
the prosecutor improperly discussed the details of that conviction, Madison’s
violations of sex-offender reporting obligations stemming from it, and a prior drug
offense. However, Madison offers no argument or analysis to show why any of
this was improper.
        {¶ 198} In his penalty-phase closing argument, the prosecutor stated: “It
would be * * * dishonest morally to violate your oaths.” A defense objection was
overruled. It is not misconduct to allude to the jurors’ oath. Just before the
statement here, the prosecutor admonished the jurors to put aside “bias, * * *
sympathy [and] prejudice” and “act in a logical, reasonable fashion.” It is evident
that “[t]he prosecutor was not asking the jurors to return a finding of guilty because
of their oath.” State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d




                                         51
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1023, ¶ 116, overruled in part on other grounds, State v. Bates, ___ Ohio St.3d ___,
2020-Ohio-634, ___ N.E.3d ___, ¶ 35. Instead, his statement linked the jurors’
oath to their responsibility to act logically, reasonably, and without bias.
       {¶ 199} The prosecutor also said that there was “no reasonable question
whatsoever as to weight”; that it would not be honest to say “a bush is bigger than
a giant Sequoia tree”; that he had “faith in the people” and “in you [jurors] to do
the right thing”; that “we owe” it to the victims, society, and the community “to
follow our oath”; and that “I appreciate * * * the weight you will carry the rest of
your life thinking about this case and the justice it deserves.” The defense objected
to none of this at trial, waiving all but plain error. Madison now claims that all of
it was error, but he cites nothing to show how any of it was improper. Nor does he
show how these statements undermined the reliability of the penalty-phase verdict.
Thus, he fails to show plain error.
       {¶ 200} Madison contends that the prosecutor, in examining Dr. Pitt,
“ignored” the trial court’s admonition that he could explore the issue of “choice” in
a “limited manner.” But he does not explain how the prosecutor exceeded this
limitation. The defense objected only once, and the trial court overruled that
objection. Madison has not shown error.
       {¶ 201} Madison’s remaining claims in this proposition of law repeat
claims from his 13th and 14th propositions, claims we have already rejected.
Madison’s 15th proposition of law is overruled.
              VII. INEFFECTIVE ASSISTANCE OF COUNSEL
       {¶ 202} In his 16th proposition of law, Madison contends that his trial
counsel rendered ineffective assistance.       To establish ineffective assistance,
Madison must show (1) deficient performance by counsel, i.e., performance falling
below an objective standard of reasonable representation, and (2) prejudice, i.e., a
reasonable probability that, but for counsel’s errors, the proceeding’s result would
have been different. Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104




                                          52
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S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d
373 (1989), paragraphs two and three of the syllabus.
                                    A. Guilt Phase
          {¶ 203} Madison asserts that to the extent counsel failed to object to
improper statements in the interrogation videos, they rendered ineffective
assistance. Similarly, he contends they were ineffective to the extent they failed to
object to prosecutorial misconduct. As he gives no specifics and offers no analysis,
we reject these claims.
          {¶ 204} He also claims that defense counsel were ineffective by failing to
object to (1) the police interrogating Madison about the number of victims, (2)
testimony that Madison talked about “watching the bitches” and wanting to kill the
mother of his children, (3) his flirting with a female detective, and (4) the portion
of the video when he was talking to himself.
          {¶ 205} These issues are all raised in Madison’s seventh proposition of law.
As we have explained in discussing that proposition, the final three of these claims
do not satisfy the prejudice prong of the plain-error test. Nor do they meet the
prejudice prong for ineffective assistance. As for the number-of-victims issue,
Madison fails to show that his trial counsel’s failure to object fell below an
objective standard of reasonable representation. Thus, Madison has failed to
demonstrate ineffective assistance as to any of these issues.
                                  B. Penalty Phase
          {¶ 206} Madison contends that to the extent counsel in the penalty phase
failed to object to unfairly prejudicial evidence or to prosecutorial misconduct, they
rendered ineffective assistance. Again, he offers no analysis, so we reject these
claims.
          {¶ 207} Madison asserts that after the state cross-examined Dr. Davis on
the defense’s failure to call Madison’s mother in the penalty phase, defense counsel
erred by failing to draft a curative instruction after the trial court had offered counsel




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an opportunity to do so. But, as stated above in our discussion of Madison’s 15th
proposition of law, it is unclear how any unfair prejudice resulted from the cross-
examination.
       {¶ 208} Finally, Madison argues that defense counsel should have
requested a penalty-phase instruction to inform the jury about United States
Supreme Court decisions establishing the relevance of “moral culpability” to
capital sentencing. He cites no authority, however, for the proposition that a jury
should be instructed about specific Supreme Court decisions.
       {¶ 209} Madison fails to establish that counsel rendered ineffective
assistance in either phase of trial. His 16th proposition of law is overruled.
                         VIII. CUMULATIVE ERROR
       {¶ 210} In his 18th proposition, Madison claims that the cumulative effect
of the errors alleged in this case denied him a fair trial. “[A] conviction will be
reversed when the cumulative effect of errors in a trial deprives a defendant of a
fair trial even though each of the numerous instances of trial-court error does not
individually constitute cause for reversal.” State v. Powell, 132 Ohio St.3d 233,
2012-Ohio-2577, 971 N.E.2d 865, ¶ 223. However, because Madison “offers no
further analysis, this proposition lacks substance.” State v. Sapp, 105 Ohio St.3d
104, 2004-Ohio-7008, 822 N.E.2d 1239, ¶ 103; see also Bethel, 110 Ohio St.3d
416, 2006-Ohio-4853, 854 N.E.2d 150, at ¶ 197. Madison’s 18th proposition of
law is overruled.
                             IX. SETTLED ISSUES
       {¶ 211} In his 19th proposition of law, Madison repeats several oft-rejected
arguments against the constitutionality of the death penalty and the Ohio statutes
governing its imposition and also repeats rejected arguments that the death penalty
violates international law. See, e.g., State v. Kirkland, 140 Ohio St.3d 73, 2014-
Ohio-1966, 15 N.E.3d 818, ¶ 106, 109-120, vacated in part and remanded on other
grounds, 145 Ohio St.3d 1455, 2016-Ohio-2807, 49 N.E.3d 318; Jenkins, 15 Ohio




                                         54
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St.3d at 168-174, 473 N.E.2d 264. We summarily overrule this proposition of law.
See generally State v. Poindexter, 36 Ohio St.3d 1, 520 N.E.2d 568 (1988),
syllabus; State v. Spisak, 36 Ohio St.3d 80, 81, 521 N.E.2d 800 (1988).
                               X. COURT COSTS
       {¶ 212} In his 20th proposition, Madison complains that the trial court
should have told him at sentencing that it intended to impose costs and asks us to
remand this case to the trial court so he can file a motion to waive costs. A trial
court “retains jurisdiction to waive, suspend, or modify the payment of costs of
prosecution * * * at the time of sentencing or at any time thereafter.” R.C.
2947.23(C). See State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d
1028, ¶ 265. Because Madison can ask for a waiver without a remand, we overrule
his 20th proposition of law.
                 XI. INDEPENDENT SENTENCE REVIEW
       {¶ 213} Under R.C. 2929.05, we must independently review Madison’s
death sentence. We must determine whether the evidence supports the jury’s
finding of aggravating circumstances, whether the aggravating circumstances
outweigh the mitigating factors, and whether the death sentence is proportionate to
death sentences affirmed in similar cases. R.C. 2929.05(A).
                        A. Aggravating Circumstances
       {¶ 214} The jury found three aggravating circumstances as to Terry’s
murder: course of conduct under R.C. 2929.04(A)(5) and two felony-murder
circumstances under R.C. 2929.04(A)(7) (offense committed during rape and
kidnapping). Two aggravating circumstances each were found as to the murders of
Deskins and Sheeley: course of conduct and kidnapping.
       {¶ 215} The evidence overwhelmingly supports the course-of-conduct
specification as to each of the aggravated murders.        Madison confessed to
committing one of the murders. The similarities in the murders indicate that a
single person killed all three victims.      Madison’s admissions and the strong




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evidence connecting the victims to him and to his residence prove that he was the
murderer. The similar packaging, storage, and disposal of the bodies also shows a
course of conduct. See generally Sapp, 105 Ohio St.3d 104, 2004-Ohio-7008, 822
N.E.2d 1239, at ¶ 52 (course of conduct requires “factual link” between murders
alleged to constitute the course of conduct).
       {¶ 216} The evidence also supports the rape specification as to Terry. R.C.
2907.02(A)(2) provides: “No person shall engage in sexual conduct with another
when the offender purposely compels the other person to submit by force or threat
of force.” The medical examiner testified that both Terry’s vagina and anus were
penetrated and that the resulting severe lacerations were probably inflicted with an
instrument of some sort, possibly a knife. Under R.C. 2907.01(A), “the insertion,
however slight, of * * * any instrument, apparatus, or other object into the vaginal
or anal opening of another” constitutes “sexual conduct.” And force or threat of
force can be inferred from the circumstances.
       {¶ 217} The evidence also supports the kidnapping specification as to
Terry. The evidence shows that Madison lied to win her trust and that he invited
her to his apartment. Compare State v. Fox, 69 Ohio St.3d 183, 194, 631 N.E.2d
124 (1994) (kidnapping by deception occurred when defendant called victim
pretending to be a prospective employer). As this was the third in a series of
murders, the jury could reasonably draw the inference that Madison intended to kill
Terry at the time he invited her to his apartment.
       {¶ 218} As to Sheeley and Deskins, the kidnapping case is far weaker. In
Sheeley’s case, Madison told police he picked her up at a bar and brought her back
to his apartment. At trial, the state argued that he had already formed a plan to kill
Sheeley when he brought her home and that taking her home with him was thus
kidnapping by deception. But the state fails to direct us to any evidence that
supports this theory.




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       {¶ 219} The state also argued at trial that Madison kidnapped Sheeley by
restraint, see R.C. 2905.01(A), based on his admission to police that he attempted
to “restrain” her. But that statement was in the context of his claim that she started
a fight with him and he was trying to get her out of his apartment. It does not
amount to an admission of kidnapping.
       {¶ 220} As for Deskins, there is evidence that she was in Madison’s
apartment at some point. Her DNA was found on the floor of the same closet where
Darby had noticed a foul smell in May 2013. It is reasonable to infer that Deskins,
like the other victims, was murdered in Madison’s apartment. But there is no
evidence showing how she got there. At trial, the state argued that Madison “lured”
her to the apartment, but again, there is no evidence of that. Deskins used her cell
phone to call Madison around the time she disappeared, but the record does not
show what was said in those calls. Finally, the state argued at trial that the bindings
on Deskins’s body showed kidnapping by restraint. But the medical examiner was
unable to state that the bindings were placed on the body while Deskins was alive.
       {¶ 221} At oral argument, the state theorized that Madison restrained
Deskins when he placed the plug of an electrical cord that he had used to bind
Deskins in her mouth, in what the state says was an attempt to gag her. But the
photographs of the plug in the record do not support the state’s theory. Rather the
photographs show only that the plug had been placed loosely between Deskins’s
lips and not secured in any way.
       {¶ 222} The evidence in the record is insufficient to support the kidnapping
specifications as to either Sheeley or Deskins. But this does not mean that we
should vacate Madison’s death sentences for those murders. In both cases, the
course-of-conduct specification remains valid. When a defendant’s death sentence
is based in part on an invalid specification, we can cure the error by excluding that
specification from our independent reweighing of the death sentence, so long as at
least one valid specification remains. See, e.g., State v. Wesson, 137 Ohio St.3d




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309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 97, citing Clemons v. Mississippi, 494
U.S. 738, 745, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990); see also State v. Tench,
156 Ohio St.3d 85, 2018-Ohio-5205, 123 N.E.3d 955, ¶ 309, 311.
                              B. Mitigating Factors
       {¶ 223} The mitigating factors set forth in R.C. 2929.04(B)(1) through (6)
do not assist Madison. Youth is not a factor: Madison was 36 years old when he
committed these murders. See State v. Frazier, 61 Ohio St.3d 247, 258, 574 N.E.2d
483 (1991). Degree of participation is not a factor: Madison was the sole offender.
Madison does not lack a substantial criminal record: he was convicted of attempted
rape in 2002 and he has other convictions. There was no evidence that the victims
induced or facilitated the murder and no evidence that Madison was under duress,
coercion, or provocation. As the defense conceded, there was no evidence of any
mental disease or defect. And the nature and circumstances of the aggravated
murders offer no mitigation whatsoever.
       {¶ 224} Madison’s chief witnesses in the penalty phase were Drs. Davis and
Cunningham. Their testimony dealt mostly with Madison’s history, especially his
childhood, and its effect on his ability to make choices.          Drs. Davis and
Cunningham concluded that Madison’s life contained numerous “risk factors”
associated with negative life outcomes, including instability, physical abuse,
neglect and emotional abuse, and substance abuse.
       {¶ 225} Instability: Madison was born in Pennsylvania in 1977. As an
infant, he moved to Cleveland with his mother. Madison’s paternity was unclear,
and his father was never involved in his life. His mother had a series of short-term
relationships with men. Madison grew up with at least 14 “transient parental
figures” in the household. Few if any were good role models.
       {¶ 226} Madison’s mother also moved frequently.           According to Dr.
Cunningham, frequent moves can disrupt a child’s socialization and undermine his
sense of security. At various times, Madison was sent to live with relatives and




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with others. In 1993, Madison and his half-brother, J.R. Miller, stayed with an
uncle in Pennsylvania who abused J.R., had sex with a woman in front of Madison,
and encouraged the boys to use drugs and watch pornography.
       {¶ 227} Physical Abuse: Madison reported that his mother sometimes
choked him. She also allegedly beat him with a cord, bruised his eye with her fist,
stuffed food down his throat, and inflicted “exercise punishments” such as forcing
him to do pushups for a long time without stopping. Her live-in boyfriends also
physically abused him, and she did nothing about it. On one occasion, Madison
was taken to the hospital after one of his mother’s boyfriends severely beat him.
Madison’s half-brother J.R. was also abused; according to Dr. Cunningham, seeing
another household member abused is as damaging to a child as being abused.
       {¶ 228} Madison told Dr. Pitt that he had never been sexually abused.
(However, Dr. Cunningham noted that Madison’s aunt reported that when Madison
was six, a babysitter had sexually abused him.)         Moreover, his first sexual
experience took place at age 15 with a 35-year-old woman, a situation Dr.
Cunningham considered “predatory” and “exploitive.”
       {¶ 229} Neglect and Emotional Abuse: Madison’s mother did not ensure
that he had enough to eat. She did not provide guidance, help him with homework,
take him to playgrounds or movies, give him Christmas presents, or tell him she
loved him. She once burned him by bathing him in water that was too hot.
       {¶ 230} Dr. Cunningham opined that chronic stress in childhood—
including disrupted attachments, poor maternal bonding, abuse, and neglect—
causes changes in the brain’s anatomy, electrical activity, and chemistry that
increase the likelihood of criminal conduct and violence in adulthood. In particular,
Dr. Cunningham testified that neglect and instability are more damaging to a child
than physical abuse. Dr. Davis explained that if a child has “unstable or insecure
attachments” early in life, his brain may fail to develop the pathways that allow
persons to form healthy emotional attachments.




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       {¶ 231} Dr. Cunningham also testified that lack of empathy and other
antisocial characteristics have a “hereditability component.” He noted that the
behavioral history of Madison’s mother and other relatives suggests that such
dysfunctional traits may have been “genetic[ally] transmit[ted]” to Madison.
       {¶ 232} Dr. Cunningham concluded that Madison is fundamentally
impaired in his ability to understand the emotional experience of others. He
conceded that Madison “had choices,” i.e., that he was capable of making choices.
But in his opinion, Madison lacked the same foundation for making choices that
“less damaged people” have. According to Dr. Cunningham, it is “very unusual”
for someone with a history like Madison’s to lead a “highly achieving constructive”
life. On the other hand, he said not everyone who is subjected to similar adverse
influences goes on to commit multiple murders.
       {¶ 233} The state called Dr. Pitt in rebuttal. Dr. Pitt diagnosed Madison as
having antisocial-personality disorder, a condition defined by a pervasive pattern
of violating the rights of others. Dr. Pitt also saw evidence that Madison has a
“victimization mindset,” i.e., he tends to see himself as a victim. Like Dr. Davis,
Dr. Pitt found no evidence that Madison has a mental disease or defect.
       {¶ 234} Dr. Pitt emphatically disagreed with Dr. Cunningham’s conclusion
that Madison’s history “limit[ed] the range of choices or * * * options that were
available to him.” He found Madison “entirely capable of making lawful choices.”
       {¶ 235} Dr. Pitt agreed that abuse “may” have an impact on a child’s
development and that bad parenting can have a lasting effect on one’s personality
and behavior. Nor did he dispute Dr. Davis’s conclusion that Madison’s childhood
abuse and emotional trauma may have resulted in a “neurobiologically determined
pathway placing him at much greater risk for psychological[,] behavior[al,] and
substance abuse problems.”
       {¶ 236} While conceding some correlation between having a bad childhood
and becoming a violent offender, Dr. Pitt noted that correlation does not prove




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causation and testified that it is impossible to predict who will become an alcoholic,
a sex offender, or a serial killer. Indeed, he testified that “there are people all across
this country who have had [Madison’s] background and then some, and have gone
on to * * * live very productive, happy, successful lives.” And he pointed out that
the “overwhelming majority” of child-abuse victims, even though they “have to
live with some demons,” do not go on to commit multiple murders, kidnappings,
and rapes. Conversely, some people with “terrific upbringings * * * do terrible
things.”
        {¶ 237} Dr. Cunningham agreed with Dr. Pitt that Madison has a “victim
mentality,” but said that is evidence of his being “damaged.”                   He also
acknowledged that Dr. Pitt’s diagnosis of antisocial-personality disorder was
“probably” accurate.
        {¶ 238} Substance Abuse: Mental-health experts on both sides diagnosed
substance-abuse problems. Dr. Cunningham testified that the most powerful risk
factor for alcohol and drug abuse is heredity and that Madison’s early substance
abuse indicates a “genetic predisposition” to abuse substances. But Dr. Pitt said
that the level of drug and alcohol use Madison described in his interview was
insufficient to cause blackouts, cognitive difficulty, or long-term psychiatric
problems. Madison’s girlfriend Darby recalled that Madison was not a heavy
drinker during the timeframe of the murders, contradicting what Madison told the
police and Dr. Cunningham about his alcohol use.
        {¶ 239} Low Risk to Prison Staff and Inmates: The jury also heard from
James E. Aiken, a consultant and retired prison administrator, who testified as a
defense expert witness on corrections and prison environments. Aiken reviewed
Madison’s prison and jail records, his social history and education, and a “brief
overview” of his crimes. He concluded that the Department of Rehabilitation and
Correction could “adequately manage” Madison if he was sentenced to life in
prison. Aiken testified that Madison’s age and past behavior while incarcerated




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indicated an “extremely low” probability that Madison would pose a danger to
prison employees or to other inmates.
       {¶ 240} Relationship with Children: In the guilt phase, Madison’s neighbor
Asia Stovall, his friend Quiana Baker, and his girlfriend Darby testified that
Madison was a good father to his two children. In Stovall’s view, Madison’s
children loved being with him. Baker offered that the children respected and
obeyed Madison. And Darby said that Madison loved his children and they loved
him.
                             C. Sentence Evaluation
       {¶ 241} Madison’s most significant mitigating factor is his abused, unstable
childhood. But this court has seldom given strong weight to a defendant’s unstable
or troubled childhood. See, e.g., State v. Campbell, 95 Ohio St.3d 48, 51-54, 765
N.E.2d 334 (2002); State v. Cooey, 46 Ohio St.3d 20, 41, 544 N.E.2d 895 (1989);
but see State v. Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208,
¶ 137- 140; State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386,
¶ 101-106. Madison was 36 years old when he committed these murders. “He had
reached ‘an age when * * * maturity could have intervened’ and ‘had clearly made
life choices as an adult before committing’ ” these murders. Campbell at 53,
quoting State v. Murphy, 65 Ohio St.3d 554, 588, 605 N.E.2d 884 (1992) (Moyer,
C.J., dissenting). He “had considerable time to distance himself from his childhood
and allow other factors to assert themselves in his personality and his behavior.”
Id.
       {¶ 242} Madison’s relationship with his children is entitled to some slight
weight. His possible voluntary intoxication during the offenses is entitled to little
weight. See id. at 51. Aiken’s assessment that Madison will not likely be a danger
to guards or fellow inmates if incarcerated for life deserves some slight weight.
       {¶ 243} With respect to Terry’s murder, we conclude that the three
aggravating circumstances—kidnapping, rape, and Madison’s course of conduct




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involving three murders in ten months—outweigh the mitigating factors beyond a
reasonable doubt. As to the murders of Deskins and Sheeley, we conclude in each
case that the course-of-conduct aggravating circumstance alone outweighs the
mitigating factors beyond a reasonable doubt.
                           D. Proportionality Review
       {¶ 244} We further conclude that the imposition of death sentences for these
crimes is proportionate to sentences approved in similar cases. This court has
approved death sentences in multiple-murder cases. E.g., Beasley, 153 Ohio St.3d
497, 2018-Ohio-493, 108 N.E.3d 1028, at ¶ 250; State v. Spaulding, 151 Ohio St.3d
378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 229.
                              XII. CONCLUSION
       {¶ 245} We reverse the trial court’s judgment convicting Madison of
kidnapping Sheeley and Deskins under Counts 3 and 6 of the indictment, and we
accordingly vacate the prison sentences imposed for each of those offenses. We
also reverse the trial court’s judgment on the felony-murder death specifications to
Counts 2 and 5, which were predicated on kidnapping. Those specifications are
dismissed. See Tench, 156 Ohio St.3d 85, 2018-Ohio-5205, 123 N.E.3d 955, at
¶ 311; State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 149.
       {¶ 246} In all other respects, we affirm the judgment of the trial court
regarding the convictions and sentences. We affirm all three sentences of death.
                                                         Judgment affirmed in part
                                                               and reversed in part.
       O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DONNELLY, and
STEWART, JJ., concur.
                               _________________
       Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and
Christopher D. Schroeder, Katherine E. Mullin, and Anna M. Faraglia, Assistant
Prosecuting Attorneys, for appellee.




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       Law Office of Timothy Farrell Sweeney and Timothy F. Sweeney; and John
B. Gibbons, for appellant.
                              _________________




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