[Cite as State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019.]




           THE STATE OF OHIO, APPELLEE, v. MAXWELL, APPELLANT.
         [Cite as State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019.]
Criminal law—Right to confront witnesses—Sixth Amendment—Autopsy reports
        and testimony by nonexamining deputy coroner—Aggravated murder—
        Death penalty upheld.
      (No. 2007-0755—Submitted June 5, 2013—Decided March 20, 2014.)
          APPEAL from the Court of Common Pleas of Cuyahoga County,
                                       No. 475400.
                                ____________________
                               SYLLABUS OF THE COURT
An autopsy report that is neither prepared for the primary purpose of accusing a
        targeted individual nor prepared for the primary purpose of providing
        evidence in a criminal trial is nontestimonial, and its admission into
        evidence at trial under Evid.R. 803(6) as a business record does not violate
        a defendant’s Sixth Amendment confrontation rights.
                                ____________________
        LANZINGER, J.
        {¶ 1} This is an appeal as of right by defendant-appellant, Charles
Maxwell, who has been sentenced to death for the aggravated murder of Nichole
McCorkle.
                                    I. Trial Evidence
        {¶ 2} Evidence introduced at trial showed that McCorkle and Maxwell had
a long-term relationship that began in 1999, living together on different occasions
over the next few years.         They had one child, C.M., nearly four years old.
Nichole also had two other children, D.C. and D.K.               In August 2005, she
purchased a single-family home at 1046 East 146th Street in Cleveland and lived
                             SUPREME COURT OF OHIO




there with her father and two of the children. Maxwell had a key to the side door
of the house and kept some clothes there.
The underlying assault
       {¶ 3} The prosecution introduced evidence showing that on October 6,
2005, Nichole went to the hospital and received stitches for head injuries after
Maxwell struck her. Police came to the hospital and took Nichole’s report about
the incident. On the same date, Maxwell told John Gregg, a friend and coworker,
that he had pistol-whipped Nichole.         On October 13, 2005, she obtained a
temporary protection order against Maxwell.
       {¶ 4} Afterward, prosecutors presented felonious-assault charges against
Maxwell to the grand jury.      Nichole was subpoenaed to testify before it on
November 23, 2005.
       {¶ 5} Maxwell told Gregg that he was concerned about receiving prison
time for felonious assault. Maxwell knew about the temporary protection order
and that a warrant had been issued for his arrest. He had also learned that Nichole
was going to testify against him at the grand jury.
       {¶ 6} At Maxwell’s behest, Gregg contacted Nichole about her grand jury
testimony in an effort to reduce the charges from felonious assault to a lesser
offense. Gregg asked Nichole to “stick to the story that it was a simple domestic;
she pushed him, he pushed her, she slipped and hit her head on the stove.”
                         A. Nichole’s grand jury testimony
       {¶ 7} Following Nichole’s testimony on November 23, 2005, the grand
jury indicted Maxwell for felonious assault, abduction, and domestic violence.
Brian Mooney, an assistant prosecutor for Cuyahoga County, informed Nichole
that day that the grand jury had voted to indict and told her what the charges were.
Because of the Thanksgiving holiday, the indictment was not signed by the grand
jury foreman and filed with the clerk of court until November 28, 2005.




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       {¶ 8} The evening of the grand jury’s decision, Maxwell called Gregg and
said that he had been trying to talk to Nichole about her grand jury testimony but
had been unable to contact her.       Maxwell then called Nichole while Gregg
remained on the line and heard their conversation. Maxwell asked Nichole what
happened in court that day. Nichole told him, “I told the truth. I had to tell the
truth.” According to Gregg, Maxwell was very upset after the phone call and said
that “the bitch was going to make him kill her.” Maxwell also asked Gregg where
he could get a gun.
                      B. The events of November 26 and 27, 2005
       {¶ 9} The prosecution presented evidence that on the evening of
November 26, 2005, Nichole and Willie Hutchinson met at a bar.             Lauretta
Kenney, Nichole’s sister, had introduced Hutchinson to Nichole after the October
6 incident. Nichole and Hutchinson arrived at the bar in separate cars and had a
few drinks. When they departed, although Nichole had told Hutchinson that she
would call him when she got home, she did not. But Hutchinson called Nichole,
and a man answered the phone. Hutchinson then called Lauretta and told her to
check on Nichole.
       {¶ 10} Near 2:30 a.m. on November 27, Lauretta called Nichole, and
Maxwell answered the phone. Maxwell immediately gave the phone to Nichole.
Lauretta asked Nichole why Maxwell was there and told her that he needed to
leave. According to Lauretta, Nichole said that “she was confused and she didn’t
know what was going on.”
       {¶ 11} Lauretta then drove to Nichole’s home and arrived around 2:40
a.m. but did not see Maxwell’s car on the street or in the driveway. Lauretta called
Nichole, saying she was outside. Nichole “mumbled something” and then hung
up. Lauretta went onto the porch, and Nichole and Maxwell were standing next to
each other when Lauretta opened the screen door.




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       {¶ 12} Lauretta told Maxwell that he was not supposed to be there and
needed to leave. Maxwell said that he was just talking to Nichole. Lauretta
testified, “I told him, there’s no talking, that you needed to leave.” He then called
Lauretta “a bitch” and said, “[I]f anybody’s leaving it’s going to be you.”
Maxwell then stepped back and pulled a gun from his pants. Nichole screamed,
“[O]h my God, Lauretta, he got a gun, run.” Lauretta then jumped off the porch
and started running. Lauretta heard two gunshots as she ran across the street and
heard a third gunshot after she crossed the street. Lauretta then saw Maxwell
kneeling down by Nichole.
       {¶ 13} C.M., a day short of four years old, was standing near Maxwell and
Nichole when Lauretta came to the door. Later, when asked what she had seen,
C.M. testified, “He shoot my mommy.”
       {¶ 14} Maxwell ran from the house after shooting Nichole and fled down
the street. Lauretta followed him for a short distance before he disappeared.
Shortly afterwards, police officers and emergency medical personnel arrived on
the scene. Nichole was taken to the hospital, where she died from her injuries.
       {¶ 15} On the morning of November 27, Michelle Kenney, Nichole’s
other sister, called Gregg and told him that Maxwell had killed Nichole. Gregg
said that he then called Maxwell and asked him if he had killed Nichole. Maxwell
admitted killing her and recounted what happened. He said he had followed
Nichole from her home to the bar. She went into the bar, and Maxwell waited
outside in his car. He then went inside and saw Nichole and another man sitting
in the back of the bar “making out.” Maxwell then returned to his car and waited.
After they left the bar, he followed Nichole and the man as they drove in separate
cars to Nichole’s house. Nichole kissed the man and went into her house, and the
man drove away.
       {¶ 16} Gregg also testified that Maxwell told him that he called Nichole
after the other man drove away and asked if he could come over. Nichole said he




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could, and Maxwell went to her house. Maxwell answered the phone at Nichole’s
house, including repeated calls from a man who asked to speak to Nichole. He
also answered a call from Lauretta.      Maxwell told Gregg that “they started
arguing and then he confronted her about that night.” Lauretta then came to the
front door, and Maxwell “opened the door[,] pointed the gun and fired but she had
ran.” Then, Maxwell told Gregg, “he just turned around, shot Nichole and she fell
down and * * * she moved and then he shot her again.”
                           C. The Police Investigation
       {¶ 17} Police investigators found two .25 caliber shell casings inside the
house. Investigators looked inside and outside the house for a third shell casing,
which they never found. Investigators also did not find any bullet holes inside or
outside the house.
       {¶ 18} Dr. David Dolinak, a medical examiner with the Cuyahoga County
coroner’s office, conducted Nichole’s autopsy. Nichole suffered two gunshot
wounds to the head. One gunshot in the middle of the right eyebrow broke the
bones of the eye socket. The bullet did not enter the brain but lodged in the
sinuses on the right side of the nose. The other gunshot went through the left side
of the head into the right side of the brain. Dr. Dolinak concluded that Nichole
died from gunshot wounds to the head and that the death was a homicide.
       {¶ 19} Detective James Ealey, a firearms examiner with the Cleveland
Police Department, examined the two bullets recovered during the autopsy. Ealey
testified that they had been fired from the same weapon. His written report stated
that the bullets were “consistent with 25 auto type ammunition.”
       {¶ 20} The police sought to locate and arrest Maxwell following Nichole’s
death. On December 16, 2005, FBI Special Agent Robert Riddlebarger and other
members of the Cleveland/Cuyahoga County Fugitive/Gang Task Force went to a
Cleveland home to arrest him. After entering the home, they found Maxwell
hiding in a crawl space behind a bed in a second-floor bedroom. As he was being



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handcuffed, Maxwell was asked whether he was armed or whether there were any
weapons nearby. He replied, “I do not have a gun anymore.” A few seconds
later, Maxwell blurted out that he had gotten rid of the gun that he had.
         {¶ 21} The defense presented no witnesses during the guilt phase of the
trial.
                                 II. Case History
         {¶ 22} Maxwell was indicted on two counts of aggravated murder. Count
One charged him with the aggravated murder of Nichole with prior calculation
and design. Count Two charged him with the aggravated murder of Nichole
while committing kidnapping and/or aggravated burglary. Both counts contained
death-penalty specifications for a course of conduct involving multiple murders or
attempted murders, R.C. 2929.04(A)(5), murder while committing kidnapping or
aggravated burglary, R.C. 2929.04(A)(7), murder in retaliation for testimony in a
criminal proceeding, R.C. 2929.04(A)(8), and murder to escape accounting for a
crime, R.C. 2929.04(A)(3).
         {¶ 23} Maxwell was also charged with six additional counts:         Count
Three—kidnapping, Counts Four and Five—aggravated burglary, Count Six—the
attempted murder of Lauretta Kenney, Count Seven—retaliation against Nichole
because she filed criminal charges against him, and Count Eight—having a
weapon while under disability. Counts One through Seven each contained a
firearm specification.
         {¶ 24} Maxwell pled not guilty to all charges and specifications. The
matter proceeded to a jury trial on the first seven counts, while Maxwell waived a
jury trial on Count Eight. At the close of the state’s case, defense counsel filed a
Crim.R. 29 motion to dismiss the charges. The trial court granted the motion to
dismiss Counts Two through Five and the felony-murder death-penalty
specification but denied the motion to dismiss the other charges. The jury found
Maxwell guilty of Counts One and Seven, the retaliation and murder-to-escape-




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accounting specifications, and two firearm specifications. He was found not
guilty of Count Six and the course-of-conduct specification. Separately, the trial
court found Maxwell guilty of having a weapon while under a disability.
       {¶ 25} Prior to sentencing, the R.C. 2929.04(A)(3) specification was
merged into the R.C. 2929.04(A)(8) specification. Following the presentation of
evidence in the penalty phase of the trial, the jury recommended that Maxwell be
sentenced to death. The trial court accepted the jury’s recommendation, and
Maxwell was sentenced to death on Count One. He was also sentenced to five
years in prison for the independent count of retaliation, three years on the firearm
specification, and five years for having a weapon under a disability.
                              III. Issues on Appeal
       {¶ 26} The principal issues for review include the adequacy of trial
counsel’s preparation and presentation of mitigating evidence, the trial court’s
failure to appoint a neurologist, the admissibility of Maxwell’s statements to
police at the time of his arrest, and the admissibility of the medical examiner’s
testimony and the autopsy report under Crawford v. Washington, 541 U.S. 36,
124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
       {¶ 27} In this appeal, Maxwell raises 19 propositions of law. We will
address the issues in the approximate order that they arose during the trial;
however, we will first discuss proposition of law XV, which deals with the
admissibility of the medical examiner’s testimony and the autopsy report, as those
issues present novel questions of law.
                             Proposition of Law XV
       {¶ 28} In proposition of law XV, Maxwell argues that the trial court erred
by admitting the autopsy report on Nichole McCorkle and by allowing Dr. Felo,
who did not conduct the autopsy, to testify about the autopsy results in violation
of his Sixth Amendment right to confrontation and Crawford.




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       {¶ 29} Dr. David Dolinak conducted Nichole’s autopsy on November 28,
2005. The prosecution called Dr. Joseph Felo to testify about the autopsy instead
of Dr. Dolinak, who at the time of trial had become the medical examiner for
Austin, Texas. Maxwell objected to Dr. Felo’s testimony, citing Crawford and
the best-evidence rule. The trial court cited State v. Craig, 110 Ohio St.3d 306,
2006-Ohio-4571, 853 N.E.2d 621, and allowed Dr. Felo to substitute as a witness.
Dr. Dolinak’s autopsy report was also admitted into evidence over defense
objection.
       {¶ 30} Dr. Felo testified that he had reviewed the autopsy report and the
autopsy photographs and x-rays of the victim and looked at tissue slides under the
microscope.       He discussed the external examination of Nichole that was
conducted during the autopsy. He testified that there were two gunshot wounds to
the head and a bruise in the midportion of the chest. He referred to the autopsy
report in stating that this injury “was interpreted to be because of medical therapy,
CPR, doing chest compressions.” He testified that the internal examination of the
skull revealed a tear going through the right eyeball and into the brain. There was
also some bleeding and bruising caused by bullets going through the brain.
       {¶ 31} Dr. Felo referred directly to the autopsy report in discussing the
victim’s wounds. He testified, “Gunshot wound number one is described as being
in the right eyebrow” (emphasis added), and he referred to the autopsy report in
describing the trajectory of the gunshot. He also testified that the bullet from the
other gunshot traveled “through the scalp and through the brain and skull from the
left side going towards her right side.” He used autopsy photographs to illustrate
this testimony.
       {¶ 32} Dr. Felo testified that microscopic examination showed the tears
and bleeding caused by the bullets going through the brain, that microscopic
evaluation of swabs taken from the victim’s mouth, vagina, and rectum revealed
no evidence of sperm, and that stippling was found around both entrance wounds.




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He expressed his opinion that stippling is generally found when “it’s within 18
inches of the end of the muzzle to the target.”
            {¶ 33} Although Dr. Felo testified that the Cuyahoga County coroner had
established the cause and manner of death, he also provided his own opinion,
stating, “The cause of Nichole Anna Maria McCorkle’s death is gunshot wounds
of [the] head * * *. The manner of death is a homicide.”
DISCUSSION
            {¶ 34} The Sixth Amendment’s Confrontation Clause provides, “In all
criminal prosecutions, the accused shall enjoy the right * * * to be confronted
with the witnesses against him * * *.”          The United States Supreme Court has
interpreted this to mean that admission of an out-of-court statement of a witness
who does not appear at trial is prohibited by the Confrontation Clause if the
statement is testimonial unless the witness is unavailable and the defendant has
had a prior opportunity to cross-examine the witness. Crawford, 541 U.S. 36, 53-
54, 124 S.Ct. 1354, 158 L.Ed.2d 177.
            {¶ 35} Crawford did not define the word “testimonial” but stated generally
that the core class of statements implicated by the Confrontation Clause includes
statements “ ‘made under circumstances which would lead an objective witness
reasonably to believe that the statement would be available for use at a later
trial.’ ”     Id. at 52, quoting the amicus brief of the National Association of
Criminal Defense Lawyers. The Crawford opinion announced a “fundamentally
new interpretation of the confrontation right.” Williams v. Illinois, ___ U.S. __,
132 S.Ct. 2221, 2232, 183 L.Ed.2d 89 (2012).
            {¶ 36} We have already considered the distinction between testimonial
and nontestimonial statements. In State v. Craig, 110 Ohio St.3d 306, 2006-Ohio-
4571, 853 N.E.2d 621, ¶ 88, we held that an autopsy report completed by a
nontestifying medical examiner was admissible as a nontestimonial business
record under Evid.R. 803(6). We held that there was no Sixth Amendment



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violation in admitting the autopsy report because Crawford had indicated that
“business records are, ‘by their nature,’ not testimonial” and were therefore
admissible. Id. at ¶ 81, quoting Crawford, 541 U.S. at 56. We stated, “An
autopsy report, prepared by a medical examiner and documenting objective
findings, is the ‘quintessential business record.’ ” Id. at ¶ 82, quoting Rollins v.
State, 161 Md.App. 34, 81, 866 A.2d 926 (2005).
       {¶ 37} After our decision in Craig, the United States Supreme Court
decided that analysts who had performed laboratory tests were required to testify.
Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314
(2009). While the dissent states that the reasoning in Craig has been undone by
Melendez-Diaz, we do not agree. In Melendez-Diaz, the court held that three
notarized certificates of analysis showing that a forensic analysis identified
cocaine were inadmissible. Being “quite plainly affidavits,” they constituted
testimonial statements because they were “functionally identical to live, in-court
testimony, doing ‘precisely what a witness does on direct examination.’ ” Id. at
310-311, quoting Davis v. Washington, 547 U.S. 813, 830, 126 S.Ct. 2266, 165
L.Ed.2d 224 (2006). The affidavits were also “ ‘ “made under circumstances
which would lead an objective witness reasonably to believe that the statement[s]
would be available for use at a later trial.” ’ ” Id. at 311, quoting Crawford, 541
U.S. at 52, 124 S.Ct. 1354, 158 L.Ed.2d 177, quoting the amicus brief of the
National Association of Criminal Defense Lawyers. Thus, the analysts who had
provided the affidavits were witnesses for Confrontation Clause purposes, and the
defendant had the right to confront them. Id. at 311.
       {¶ 38} Shortly afterwards, we considered how foundational testimony is to
be presented for DNA analysis. State v. Crager, 116 Ohio St.3d 369, 2007-Ohio-
6840, 879 N.E.2d 745. In Crager, a DNA expert from the Bureau of Criminal
Identification and Investigation (“BCI”) had testified about a DNA analysis
performed by another agent. Id. at ¶ 8. We held that the DNA report was a




                                        10
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nontestimonial business record and that its introduction without the testimony of
the BCI agent who prepared it did not violate Crawford. Id. at ¶ 78-79. Relying
upon our earlier opinion, we stated, “The autopsy report at issue in Craig is not
distinguishable from the DNA reports in this case.” Id. at ¶ 51. “As in Craig, the
scientific-test reports in this case were prepared in the ordinary course of regularly
conducted business and so were not testimonial.” Id. at ¶ 54. The United States
Supreme Court vacated the judgment in Crager and remanded the case for further
consideration in light of Melendez-Diaz. Crager v. Ohio, 557 U.S 930, 129 S.Ct.
2856, 174 L.Ed.2d 598 (2009). Thereafter, without deciding whether Crager’s
right to confront witnesses had been denied, we “vacat[ed] the judgment of the
trial court and remand[ed] the cause to the trial court for a new trial consistent
with Melendez-Diaz v. Massachusetts.” State v. Crager, 123 Ohio St.3d 1210,
2009-Ohio-4760, 914 N.E.2d 1055, ¶ 3.
       {¶ 39} Next, the Supreme Court decided Bullcoming v. New Mexico, 564
U.S. ___, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). In Bullcoming, instead of
calling the analyst who signed and certified the forensic report for blood-alcohol
concentration in a DWI case, the prosecution introduced the lab report through the
testimony of another analyst who had not performed or observed the analysis but
was familiar with the testing procedures of the laboratory. Although the witness
was a “knowledgeable representative of the laboratory” who could “explain the
lab’s processes and the details of the report,” id. at 2723 (Kennedy, J, dissenting),
the majority held that the surrogate witness was not a proper substitute for the
analyst who had conducted the test. The court concluded, “The accused’s right is
to be confronted with the analyst who made the certification * * *.” Id. at 2710.
       {¶ 40} Bullcoming also held that the blood-alcohol analysis reports were
testimonial. The court stated, “In all material respects, the laboratory report in
this case resembles those in Melendez-Diaz. Here, as in Melendez-Diaz, a law-
enforcement officer provided seized evidence to a state laboratory required by law



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to assist in police investigations. * * * Like the analysts in Melendez-Diaz, [the
certifying analyst] tested the evidence and prepared a certificate concerning the
result of his analysis.” Id. at 2717. Thus, while the Crawford court declined to
define “testimonial,” later decisions seem to explain the meaning of the word by
stating that testimonial statements are those made for “a primary purpose of
creating an out-of-court substitute for trial testimony.” Michigan v. Bryant, ___
U.S. __, 131 S.Ct. 1143, 1155, 179 L.Ed.2d 93 (2011); see also Bullcoming at
2714, fn. 6, quoting Davis, 547 U.S. at 822, 126 S.Ct. 2266, 165 L.Ed.2d 224
(“To rank as ‘testimonial,’ a statement must have a ‘primary purpose’ of
‘establish[ing] or prov[ing] past events potentially relevant to later criminal
prosecution’ ”). If a statement’s primary purpose is anything else, the statement is
nontestimonial. Its admissibility is “the concern of state and federal rules of
evidence, not the Confrontation Clause.” Id.
       {¶ 41} Most recently, five justices held that expert testimony from a
forensic specialist did not violate a defendant’s right to confrontation. Williams v.
Illinois, __ U.S. __, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). The expert witness
testified that a DNA profile produced by an outside laboratory (Cellmark) from a
rape victim’s vaginal swabs matched the defendant’s DNA profile produced by a
state police lab from the defendant’s blood sample. Id. at 2229-2230. The
Cellmark report itself was neither admitted into evidence nor shown to the fact-
finder. The expert witness also did not quote or read from the report or identify
the report as the source of any of her opinions. Id. at 2230.
       {¶ 42} Four of the five justices reasoned that the statements in the
Cellmark report were nontestimonial because, first, the out-of-court statements
were related by the expert solely for the purpose of explaining the assumptions on
which the expert’s opinion relied and were not offered for their truth. Id. at 2240-
2241. And second, even if the Cellmark report had been admitted into evidence, it
was not a testimonial document, because it was not prepared for “the primary




                                         12
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purpose of accusing a targeted individual,” which distinguished this report from
the forensic reports in Melendez-Diaz and Bullcoming. Id. at 2242. Justice
Thomas agreed that the expert’s testimony did not violate the Confrontation
Clause, but only because the Cellmark report “lacked the requisite ‘formality and
solemnity’ to be considered ‘testimonial’ for purposes of the Confrontation
Clause.” Id. at 2255 (Thomas, J., concurring in judgment), quoting Michigan v.
Bryant at 1167 (Thomas, J., concurring in judgment).
        {¶ 43} The admission of the autopsy report and Dr. Felo’s testimony must
now be considered in light of the foregoing cases.
Maxwell’s arguments
        {¶ 44} Maxwell argues that Bullcoming prohibited Dr. Felo’s surrogate
testimony about Nichole’s autopsy even though he was a “knowledgeable
representative” who could explain the lab’s processes and the details of the
autopsy report. Maxwell emphasizes that Dr. Felo’s testimony was introduced to
prove a key fact at trial and was offered for the truth of the hearsay. Thus,
Maxwell argues that he was entitled to confront and cross-examine the medical
examiner who actually performed Nichole’s autopsy and wrote the report.
        {¶ 45} Maxwell argues that Williams, a decision resulting from a bench
trial, should be distinguished from his case, which was tried before a jury without
any limiting instructions regarding the purpose for which the report could be
considered. He emphasizes that the Williams plurality indicated that the DNA
testimony might not have been admissible if that defendant had elected to have a
jury trial.
        {¶ 46} Maxwell also argues that unlike the purpose in Williams, the
primary purpose of the autopsy and the related report was to establish that
Nichole’s death resulted from a crime rather than an accident, suicide, or other
means. Thus, Maxwell argues that Dr. Felo’s testimony and the introduction of
the autopsy report resulted in a Confrontation Clause violation because the



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purpose was “ ‘ “to establish or prove past events potentially relevant to later
criminal prosecutions,” ’ ” quoting Williams, 132 S.Ct. at 2251, 183 L.Ed.2d 89
(Breyer, J., concurring), quoting Davis, 547 U.S. at 822, 126 S.Ct. 2266, 165
L.Ed.2d 224.
The state’s arguments.
       {¶ 47} The state advances three main arguments for the admissibility of
the autopsy report and the deputy coroner’s testimony. First, the state argues that
this court should continue to apply Craig, 110 Ohio St.3d 306, 2006-Ohio-4571,
853 N.E.2d 621, ¶ 88, in which we held that an autopsy report completed by a
nontestifying medical examiner was admissible as a nontestimonial business
record under Evid.R. 803(6). Second, the state argues that the coroner has a duty
to conduct autopsies and maintain reports and that this duty exists entirely
independent of any potential criminal prosecution that might later occur. The
state also asserts that autopsy reports are not created for the purpose of litigation,
because they do not identify suspects and are not accusatory in nature. Third, the
state also points out that the passage of time can easily lead to the unavailability
of the medical examiner who conducted an autopsy and that requiring the medical
examiner who conducted the autopsy to testify would be equivalent to placing a
statute of limitations on murder prosecutions.
       {¶ 48} Finally, even if admission of the autopsy report and Dr. Felo’s
testimony violated Maxwell’s right to confrontation, the state argues that the error
was harmless beyond a reasonable doubt.
Analysis
       {¶ 49} A key element in evaluating the admissibility of the coroner’s
testimony and the autopsy report in light of the recent United States Supreme
Court cases is the primary-purpose test, which examines the reasons for and
purpose of the record in question. To determine the primary purpose, a court
must “objectively evaluat[e] the statements and actions of the parties to the




                                         14
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encounter” giving rise to the statements. Bryant, 131 S.Ct. at 1162, 179 L.Ed.2d
93; see also Williams, 132 S.Ct. at 2243, 183 L.Ed.2d 89 (plurality opinion of
Alito, J.).
Coroner’s testimony
        {¶ 50} Although Maxwell relies on Bullcoming, which disallowed
surrogate testimony and held that the blood-alcohol reports admitted during the
surrogate’s testimony were testimonial, the majority of jurisdictions that have
examined this issue have concluded that a substitute examiner, on direct
examination, may at least testify as to his or her own expert opinions and
conclusions regarding the autopsy and the victim’s death. E.g., Commonwealth v.
Avila, 454 Mass. 744, 762, 912 N.E.2d 1014 (2009) (“the expert witness’s
testimony must be confined to his or her own opinions and, as to these, the expert
is available for cross-examination”);   Commonwealth v. Phim, 462 Mass. 470,
479, 969 N.E.2d 663 (2012) (a substitute medical examiner may not testify on
direct examination as to facts and conclusions stated in an autopsy report without
personal knowledge or having independently reached the same conclusion); State
v. Joseph, 230 Ariz. 296, 298, 283 P.3d 27 (2012) (as long as the substitute expert
reaches his or her own conclusions, the Confrontation Clause is satisfied).
        {¶ 51} The Supreme Court of California, however, expanded the scope of
admissible opinion testimony by a substitute examiner. The court allowed the
substitute medical examiner to testify regarding his “independent opinion” as an
expert witness as to the cause of the victim’s death, when that opinion was based
solely on a review of the autopsy report. People v. Dungo, 55 Cal.4th 608, 618,
147 Cal.Rptr.3d 527, 286 P.3d 442 (2012). Because the expert witness did not
describe the conclusions reached by the nontestifying examiner, and the expert’s
descriptions were limited to objective facts, such as the condition of the victim’s
body at the time of the autopsy, these types of statements were not testimonial in
nature. Id. at 619.



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        {¶ 52} We agree. Maxwell’s argument is also not persuasive because the
Williams plurality stated that the forensic report (the Cellmark report) could have
been admitted into evidence without violating the Confrontation Clause.
Williams, 132 S.Ct. at 2242, 183 L.Ed.2d 89.
        {¶ 53} Dr. Felo testified that he reached his own independent judgment on
the cause and manner of Nichole’s death based upon his analysis of the evidence
in the autopsy report, which itself was admitted. His conclusions were the same
as those in the report. But after reviewing the forensic evidence, Dr. Felo also
provided some opinions that were not included in the autopsy report.           For
example, he provided his own conclusions about muzzle-to-target distance based
on stippling around the entrance wounds on Nichole’s head. Such testimony
constituted Dr. Felo’s original observations and opinions and did not violate the
Confrontation Clause, because he was available for cross-examination regarding
them.
Autopsy report
        {¶ 54} In 2006, this court concluded that an autopsy report was a
nontestimonial business record and that its admission did not impinge on a
defendant’s confrontation rights. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571,
853 N.E.2d 621, ¶ 81-88 (applying Crawford v. Washington). Although the
United States Supreme Court has decided several confrontation cases since our
decision, they do not require departure from our holding in Craig.
        {¶ 55} Maxwell invokes the primary-purpose test that the Williams
plurality discussed. The Williams plurality stated that the Cellmark report could
have been admitted into evidence because it “was not prepared for the primary
purpose of accusing a targeted individual” of engaging in criminal conduct.
(Emphasis added.) Williams, 132 S.Ct. at 2243, 183 L.Ed.2d 89. In contrast,
Maxwell argues that the primary purpose of the autopsy and the related report was
to establish that Nichole’s death was a crime. However, Maxwell fails to mention




                                        16
                                January Term, 2014




that five justices in Williams rejected the plurality’s narrowed definition of the
primary-purpose test (the targeted-individual test).       Id. at 2273 (Kagan, J.,
dissenting). Thus, Maxwell’s reliance on the plurality’s narrowed definition of
the primary-purpose test is not helpful to our resolution of this issue.
       {¶ 56} Meanwhile, the state urges us to continue to adhere to Craig’s
holding that an autopsy report is admissible as a nontestimonial business record.
But an otherwise inadmissible testimonial statement may not be admitted into
evidence based upon the business-and-official-records hearsay exception.
Melendez-Diaz, 557 U.S. at 324, 129 S.Ct. 2527, 174 L.Ed.2d 314. Although
documents kept in the regular course of business are ordinarily admitted into
evidence under the hearsay exception, they are inadmissible “if the regularly
conducted business activity is the production of evidence for use at trial.” Id. at
321. When a statement is “ ‘made under circumstances which would lead an
objective witness reasonably to believe that the statement would be available for
use at a later trial,’ ” it is considered testimonial. Id. at 311, quoting Crawford,
541 U.S. at 52, 124 S.Ct. 1354, 158 L.Ed.2d 177. Thus, labeling autopsy reports
as “business records” does not end the inquiry.
       {¶ 57} An analysis of the primary-purpose test bears out Craig’s
conclusion that autopsy reports are nontestimonial.        Autopsy reports are not
intended to serve as an “out-of-court substitute for trial testimony.” Bryant, 131
S.Ct. at 1155, 179 L.Ed.2d 93. Instead, they are created “for the primary purpose
of documenting cause of death for public records and public health.” Carolyn
Zabrycki, Comment, Toward a Definition of “Testimonial”:               How Autopsy
Reports Do Not Embody the Qualities of a Testimonial Statement, 96 Cal.L.Rev.
1093, 1130 (2008); see also People v. Leach, 2012 IL 111534, 366 Ill.Dec. 477,
980 N.E.2d 570, ¶ 129 (a medical examiner is “charged with protecting the public
health by determining the cause of a sudden death”).




                                          17
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Ohio statutes
        {¶ 58} Ohio coroners conduct autopsies pursuant to the authority granted
to them by R.C. Chapter 313. Coroners must “keep a complete record of and
* * * fill in the cause of death on the death certificate, in all cases coming under
[their] jurisdiction.” R.C. 313.09. The death certificate also must indicate the
“manner and mode in which the death occurred.” R.C. 313.19. If the cause and
manner of death are not apparent—as when someone “dies as a result of criminal
or other violent means, by casualty, by suicide, or in any suspicious or unusual
manner” or “when any person * * * dies suddenly when in apparent good health,”
R.C. 313.12—the coroner is notified so that an autopsy may be conducted. An
autopsy is a “compelling public necessity” if it is needed to “protect[] against an
immediate and substantial threat to the public health” or to assist law enforcement
in conducting a murder investigation. R.C. 313.131.
        {¶ 59} Although autopsy reports are sometimes relevant in criminal
prosecutions, Craig rightly held that they are not created primarily for a
prosecutorial purpose.      Consistent with Craig, other courts have held that
coroners are statutorily empowered to investigate unnatural deaths and authorized
to perform autopsies in a number of situations, only one of which is when a death
is potentially a homicide. People v. Leach, 405 Ill.App.3d 297, 308-309, 345
Ill.Dec. 694, 939 N.E.2d 537 (2010), aff’d, 2012 IL 111534, 366 Ill.Dec. 477, 980
N.E.2d 570; Dungo, 55 Cal.4th 608, 147 Cal.Rptr.3d 527, 286 P.3d 442
(testimony by a chief medical examiner who did not prepare the decedent’s
autopsy report was admissible); United States v. James, 712 F.3d 79, 97 (2d
Cir.2013) (autopsy report was to be considered on whether it was “prepared with
the primary purpose of creating a record for use at a later trial” ).
        {¶ 60} Ohio courts of appeals have also continued to uphold the
admissibility of autopsy reports prepared by nontestifying medical examiners
since Melendez-Diaz. State v. Hardin, 193 Ohio App.3d 666, 2010-Ohio-6304,




                                          18
                                January Term, 2014




953 N.E.2d 847, ¶ 9-20 (4th Dist.) (autopsy report prepared by nontestifying
medical examiner admissible as a nontestimonial business record, since it was not
prepared for purposes of litigation); State v. Zimmerman, 8th Dist. Cuyahoga No.
96210, 2011-Ohio-6156, ¶ 43-45 (admissibility of autopsy report prepared by
nontestifying medical examiner does not conflict with Bullcoming); State v.
Adams, 7th Dist. Mahoning No. 08 MA 246, 2012-Ohio-2719, ¶ 20, 26 (Craig
still controls and autopsy report is nontestimonial evidence under Crawford, as it
is not made solely at the behest of police in order to convict the particular
defendant); State v. Monroe, 8th Dist. Cuyahoga No. 94768, 2011-Ohio-3045
(Craig not in conflict with Melendez-Diaz).
       {¶ 61} As a final matter, the admissibility of autopsy reports completed by
a nontestifying medical examiner presents unique policy interests that are not
present in other Crawford-related evidentiary matters. A medical examiner who
conducted an autopsy may be unavailable or deceased when a trial begins. And
unlike other forensic tests, a second autopsy may not be possible due to cremation
of the victim’s body or other loss of evidence with passage of time.
       {¶ 62} Under R.C. 313.09, coroners are required to “keep a complete
record of and * * * fill in the cause of death on the death certificate, in all cases
coming under [their] jurisdiction.” Moreover, the scope of an examiner’s duty is
the same regardless of whether criminal activity is suspected or not. The Illinois
Supreme Court has recognized that in some instances, police may compel the
conducting of an autopsy during investigation of a cold case for later use at trial,
and in that event the autopsy may play a testimonial role. People v. Leach, 2012
IL 111534, 366 Ill.Dec. 477, 980 N.E.2d 570, ¶ 133. The dissent rejects the
primary-purpose test and would hold that whether a particular autopsy report is
testimonial should be determined on a case-by-case basis. But generally, autopsy
reports are neither (1) prepared for the primary purpose of accusing a targeted
individual nor (2) prepared for the primary purpose of providing evidence in a



                                         19
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criminal trial. For Sixth Amendment purposes, it is only the primary purpose of a
document that determines whether it is testimonial or not.
       {¶ 63} Melendez-Diaz and Bullcoming, on which Maxwell relies, are
readily distinguishable here. In both cases, the forensic reports were made at the
request of police, for specific “evidentiary purposes” in order to aid in a police
investigation. The record does not show that to be the case here. We hold that an
autopsy report that is neither prepared for the primary purpose of accusing a
targeted individual nor prepared for the primary purpose of providing evidence in
a criminal trial is nontestimonial, and its admission into evidence at trial under
Evid.R. 803(6) as a business record does not violate a defendant’s Sixth
Amendment confrontation rights.
       {¶ 64} Finally, the state argues that any error in admitting Dr. Felo’s
testimony and the autopsy report constitutes harmless error beyond a reasonable
doubt, an issue we must determine. See Chapman v. California, 386 U.S. 18, 24,
87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Even if there was error in admitting the
coroner’s testimony and the autopsy report, as discussed later in proposition XIII,
overwhelming evidence was introduced that established Maxwell’s guilt, and
expert testimony was not crucial in proving the cause and manner of Nichole’s
death. Eyewitness testimony established that Maxwell shot Nichole in the head,
and two .25-caliber shell casings were found inside the house after Maxwell fled
the scene. Maxwell also admitted to Gregg that he shot Nichole twice. Finally,
Michelle Kenney testified that Nichole died a short time after arriving at the
hospital.
       {¶ 65} We will now address the remaining issues in the approximate order
that they arose during the trial proceedings.




                                         20
                               January Term, 2014




                            A. Pretrial and trial issues
1. Amendment of the indictment (Proposition of law II)
        {¶ 66} Maxwell argues that the trial court erred by allowing the prosecutor
to amend the indictment without engaging in a colloquy with the defendant to
ensure that he knowingly, intelligently, and voluntarily waived his right to a grand
jury.
        {¶ 67} At the beginning of trial, the prosecutor sought to amend pursuant
to Crim.R. 7(D) the specification that accompanied Counts One and Two that the
murder occurred to escape the accounting for a crime. The specification stated,
“The offender committed the offense presented above for the purpose of escaping
punishment for another offense committed by him, to-wit: Rape.” The prosecutor
stated that there was a typographical error and that the specification should state
“felonious assault” instead of “rape.”
        {¶ 68} The defense did not object to amending the specifications. Defense
counsel stated, “The prosecutor raised this issue with me * * * several pretrials
ago. I had an opportunity to speak to Mr. Maxwell with regards to this. I
explained to him certainly we have no objection to this, and he agrees with me in
terms of that, and certainly the county prosecutor can, of course, take this back to
the Grand Jury to correct the typographical error, if he wishes to do so.” The
prosecutor was then allowed to amend the specification. Because Maxwell failed
to object to the amendment, he has waived all but plain error. See State v.
Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 6.
        {¶ 69} Under Crim.R. 7(D), a court may amend an indictment “at any
time” if the amendment does not change “the name or identity of the crime
charged.” An amendment that changes the penalty or degree of the charged
offense changes the identity of the offense and is not permitted by Crim.R. 7(D).
State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609, syllabus.
However, “[a]s long as the state complies with Crim.R. 7(D), it may cure a



                                         21
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defective indictment by amendment, even if the original indictment omits an
essential element of the offense with which the defendant is charged.” State v.
Pepka, 125 Ohio St.3d 124, 2010-Ohio-1045, 926 N.E.2d 611, ¶ 15.
       {¶ 70} The amendment to the R.C. 2929.04(A)(3) specification changed
the underlying offense from rape to felonious assault. This amendment changed
the elements of the specification, because proof of the defendant’s commission of
the prior offense constituted an essential element of the R.C. 2929.04(A)(3)
specification. See State v. Jones, 91 Ohio St.3d 335, 347, 744 N.E.2d 1163
(2001). But the name of the crime of aggravated murder was not changed;
Maxwell was still charged with an R.C. 2929.04(A)(3) death-penalty
specification. The amended specification also did not change the penalty or
degree of the offense charged. Thus, the trial court committed no plain error in
granting the state’s motion to amend the indictment.
       {¶ 71} Nevertheless, Maxwell argues that the trial court did not comply
with Crim.R. 7(A), because he did not properly waive his right to have the grand
jury amend the indictment. Yet Maxwell was prosecuted by indictment and was
sufficiently informed of the charges in the indictment. Therefore, Crim.R. 7(A)
and its waiver requirements do not apply to this case. See Rohrbaugh, 126 Ohio
St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, at ¶ 11.
       {¶ 72} Maxwell invokes State v. Colon, 118 Ohio St.3d 26, 2008-Ohio-
1624, 885 N.E.2d 917, overruled by State v. Horner, 126 Ohio St.3d 466, 2010-
Ohio-3830, 935 N.E.2d 26, ¶ 45, in arguing that he had the right to have the grand
jury hear and consider the essential facts underlying the amendment of the
specification. In Colon, this court held that the omission of a mens rea allegation
in the indictment was a structural defect that rendered the conviction improper.
Id. at ¶ 19. Maxwell fails to explain how this holding applies to this case.
Moreover, after Maxwell raised the issue in his first brief, this court overruled
Colon in Horner. Thus, we reject this argument.




                                        22
                                January Term, 2014




        {¶ 73} Finally, even if the amended indictment were defective, it made no
difference to the case outcome because the trial court merged the R.C.
2929.04(A)(3) specification with the murder-in-retaliation specification in R.C.
2929.04(A)(8) before the jury considered its penalty-phase verdict. We overrule
proposition II.
2. Ineffective assistance of counsel (Proposition of law IV)
        {¶ 74} Maxwell argues that his counsel provided ineffective assistance
during jury selection and by failing to object to victim-impact evidence during the
guilt phase of the trial.
        {¶ 75} Reversal of a conviction for ineffective assistance requires that the
defendant show, first, that counsel’s performance was deficient and, second, that
the deficient performance prejudiced the defense so as to deprive the defendant of
a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). Accord State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373
(1989), paragraph two of the syllabus.
        {¶ 76} Maxwell first argues that trial counsel’s performance must be
judged by the standards set forth in the American Bar Association (“ABA”)
Guidelines for the Appointment and Performance of Defense Counsel in Death
Penalty Cases (Rev.Ed.2003). The stated objective of the guidelines is “to set
forth a national standard of practice for the defense of capital cases in order to
ensure high quality legal representation for all persons facing the possible
imposition or execution of a death sentence by any jurisdiction.” Guideline
1.1(A). To this end, the ABA guidelines present a detailed prescription for the
legal representation of capital defendants.
        {¶ 77} However, the Supreme Court has held that the ABA guidelines are
“only guides” to what reasonableness means, not its definition. Strickland at 688.
In Bobby v. Van Hook, 558 U.S. 4, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009), the
Supreme Court reversed a Sixth Circuit Court of Appeals decision that relied on



                                         23
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the ABA guidelines to grant a capital defendant relief on the ground that his
lawyers performed deficiently in investigating and presenting mitigating
evidence.     The Supreme Court criticized the Sixth Circuit for treating the
guidelines “not merely as evidence of what reasonably diligent attorneys would
do, but as inexorable commands with which all capital defense counsel ‘ “must
fully comply.” ’ ” Id. at 8, quoting Van Hook v. Anderson, 560 F.3d 523, 526 (6th
Cir.2009), quoting Dickerson v. Bagley, 453 F.3d 690, 693 (6th Cir.2006). The
Supreme Court continued, “ ‘[W]hile States are free to impose whatever specific
rules they see fit to ensure that criminal defendants are well represented, we have
held that the Federal Constitution imposes one general requirement: that counsel
make objectively reasonable choices.’ ” Id. at 9, quoting Roe v. Flores-Ortega,
528 U.S. 470, 479, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000).
          {¶ 78} Accordingly, trial counsel’s performance is reviewed under the
two-prong Strickland analysis. See also State v. Hunter, 131 Ohio St.3d 67, 2011-
Ohio-6524, 960 N.E.2d 955, ¶ 37-40.           We now address Maxwell’s specific
assertions of ineffective assistance of counsel.
                     a. Improper use of peremptory challenges
          {¶ 79} Maxwell argues that his counsel were ineffective by improperly
using peremptory challenges to eliminate women from the jury, in violation of
Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986), and
J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89
(1994).
          {¶ 80} In Batson, the United States Supreme Court held that the Equal
Protection Clause of the United States Constitution precludes purposeful
discrimination by the state in the exercise of its peremptory challenges so as to
exclude members of minority groups from service on petit juries. Id. at 89. A
court adjudicates a Batson claim in three steps. State v. Were, 118 Ohio St.3d
448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 61.            First the opponent of the




                                         24
                               January Term, 2014




peremptory challenge must make a prima facie case of racial discrimination.
Second, if the trial court finds this requirement fulfilled, the proponent of the
challenge must provide a racially neutral explanation for the challenge. Batson at
96-98. Finally, the trial court must decide based on all the circumstances whether
the opponent has proved purposeful racial discrimination. Id. at 98.
       {¶ 81} Batson has since been extended to defense peremptory challenges,
Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), and
gender-based peremptory challenges, J.E.B., 511 U.S. at 144-145.
       {¶ 82} Maxwell argues that trial counsel violated the equal-protection
rights of five female prospective jurors by peremptorily challenging them: Juanita
Gibson, Gail Gibson-Gray, Fahtema Stephens, Carol Dardzinski, and Genevieve
Torrero.   Gibson, Gibson-Gray, and Stephens were also African-American.
During jury selection, defense counsel peremptorily challenged Gibson and stated
that she was excused “because of the tragedies that have occurred in her family.”
Counsel did not make any comments with respect to his peremptory challenge of
the other four female prospective jurors.
       {¶ 83} Maxwell concedes that the voir dire responses of Gibson, Gibson-
Gray, and Stephens provided gender-neutral reasons for trial counsel’s
peremptory challenge. Maxwell notes that Gibson had been a victim of a sex
offense, Gibson-Gray suffered from depression and had been hospitalized for a
mental disease, and Stephens had been a victim of domestic violence. Maxwell
provides no other argument to support his ineffectiveness claim regarding the
peremptory challenge of these three prospective jurors.
       {¶ 84} Maxwell’s remaining argument is that trial counsel were
ineffective in peremptorily challenging Dardzinski and Torrero. But the record
includes no discussion of a possible basis for counsel’s challenges of these two
prospective jurors, because no Batson or J.E.B. objection was raised. Thus, from
the record, we cannot determine whether trial counsel had racially neutral or



                                        25
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gender-neutral explanations for the peremptory challenges and, if so, whether the
trial court could have properly accepted such explanations as credible and not a
pretext for racial or gender discrimination.           Moreover, we cannot presume
prejudice from trial counsel’s failure to raise a Batson or J.E.B. challenge. See
State v. Burks, 10th Dist. Franklin No. 07AP-553, 2008-Ohio-2463, ¶ 57 (court
unable to consider defense counsel’s failure to raise a Batson objection on direct
appeal because of an inadequate record).
       {¶ 85} Yet     Dardzinski’s    and        Torrero’s   responses   on   the   jury
questionnaires appear to provide gender-neutral explanations to support the
defense’s peremptory challenges. In response to the question “What is your
opinion of our Criminal Justice System?” Dardzinski stated, “There are times it
can be fair, but I also feel that if someone is convicted of a crime, sentencing is
not harsh enough.” When asked about her views on the death penalty, Dardzinski
stated, “I firmly believe in capital punishment. If someone can just go and kill
someone I feel their life should be taken also.” When Torrero was asked about
her feelings about the death penalty, she responded simply, “My feelings, if you
can’t do the time don’t commit the crime.” Based on the foregoing, we hold that
Maxwell has failed to establish that trial counsel were deficient by peremptorily
challenging female prospective jurors.
                     b. Failure to life-qualify prospective jurors
       {¶ 86} Maxwell argues that trial counsel were ineffective by failing to
“life-qualify” a single prospective juror pursuant to Morgan v. Illinois, 504 U.S.
719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). Morgan held that on voir dire,
upon the defendant’s request, the trial court must inquire into the prospective
juror’s views on capital punishment because a prospective juror who would
always impose the death penalty must not be empaneled. Id. at 729-734. In the
present case, the trial court received assurances from all of the seated and
alternate jurors that they could vote for one of the life sentences if the state failed




                                            26
                                January Term, 2014




to prove that the aggravating circumstances outweighed the mitigating factors.
Thus, counsel were not deficient by failing to also question the jurors about this
matter.
    c. Failure to object to characterization of the verdict as a recommendation
          {¶ 87} Maxwell argues that trial counsel were ineffective by failing to
object to the trial court’s instructions indicating that the jury verdict was merely a
recommendation, in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct.
2633, 86 L.Ed.2d 231 (1985). But counsel did object to those instructions.
          {¶ 88} Moreover, there was no Caldwell violation. In Caldwell, the jury
did not receive an accurate description of its role in the sentencing process due to
the prosecutor’s suggestion that the jury’s decision to impose the death penalty
would not be final, because the appellate court would review the sentence for
correctness.     Id. at 328-329.      The court concluded that the comment
unconstitutionally “led [the jury] to believe that the responsibility for determining
the appropriateness of the defendant’s death rests elsewhere.” Id. But when a
defendant claims that a Caldwell violation occurred, he or she “must show that the
remarks to the jury improperly described the role assigned to the jury by local
law.” Dugger v. Adams, 489 U.S. 401, 407, 109 S.Ct. 1211, 103 L.Ed.2d 435
(1989). No Caldwell violation occurred in the present case, since the trial court’s
instructions accurately stated the law, emphasized the jury’s responsibility to
impose a sentence, and did not induce reliance on the prospect of appellate
review. See State v. Hughbanks, 99 Ohio St.3d 365, 2003-Ohio-4121, 792 N.E.2d
1081, ¶ 102.
                   d. Failure to object to victim-impact testimony
          {¶ 89} Maxwell argues that trial counsel were ineffective by failing to
object to victim-impact testimony that was presented at trial.         Maxwell also
challenges the introduction of this evidence in proposition of law X. But as




                                         27
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discussed in that proposition, trial counsel were not ineffective by failing to object
to this evidence, because its admission was either proper or not prejudicial.
         {¶ 90} Based on the foregoing, we reject proposition IV.
3. Jury challenges (Propositions of law V and VI)
         {¶ 91} In proposition of law V, Maxwell argues that the trial court had an
obligation to determine sua sponte whether trial counsel had gender-neutral
reasons to peremptorily challenge five female prospective jurors. Maxwell failed
to assert a J.E.B. challenge at trial and thus waived all but plain error. See State v.
Ballew, 76 Ohio St.3d 244, 253, 667 N.E.2d 369 (1996) (failure to raise a Batson
challenge constituted waiver).
         {¶ 92} In raising a J.E.B. challenge, “a party alleging gender
discrimination must make a prima facie showing of intentional discrimination
before the party exercising the challenge is required to explain the basis for the
strike.” J.E.B., 511 U.S. at 144-145, 114 S.Ct. 1419, 128 L.Ed.2d 89. Without an
objection from either defense counsel or the prosecutor, the trial court had no
obligation to raise a J.E.B. challenge on its own motion. Moreover, the record
includes no discussion of a possible basis for counsel’s challenges, because a
J.E.B. issue was never raised. In the absence of an adequate record, we find that
no plain error occurred.
         {¶ 93} In proposition of law VI, Maxwell argues that the trial court erred
in denying a defense challenge against juror Gibson because she was biased.
Maxwell also argues that he suffered prejudice because he was forced to use a
peremptory challenge against Gibson after the trial court denied the challenge for
cause.
         {¶ 94} A trial court has broad discretion in determining a prospective
juror’s ability to be impartial. State v. White, 82 Ohio St.3d 16, 20, 693 N.E.2d
772 (1998). Former R.C. 2313.42(J) (now R.C. 2313.17(B)(9)) stated that good
cause exists for the removal of a prospective juror when “he discloses by his




                                          28
                               January Term, 2014




answers that he cannot be a fair and impartial juror or will not follow the law as
given to him by the court.” A prospective juror who has been challenged for
cause should be excused “if the court has any doubt as to the juror’s being entirely
unbiased.” Former R.C. 2313.43 (now R.C. 2313.17(D)); see State v. Cornwell,
86 Ohio St.3d 560, 563, 715 N.E.2d 1144 (1999). A trial court’s ruling on a
challenge for cause will not be disturbed on appeal absent an abuse of discretion.
Id.
        {¶ 95} During voir dire, juror Gibson stated that she had been sexually
assaulted about five years previously and that her assailant had been recently
apprehended. Gibson did not have to testify against the defendant, because there
was a plea bargain and he received a one-year sentence. Gibson stated that she
had met with Carol Skutnik of the Cuyahoga County prosecutor’s office once or
twice before trial. As to her dealings with the prosecutor’s office, Gibson stated,
“They did everything the way they were supposed to I believe. I didn’t have any
issues with them.” As a follow-up question, trial counsel asked Gibson about her
experience with the prosecutor’s office: “Do you think that’s going to somehow
possibly taint the way you view this case against my client?” Gibson responded,
“Why would it? No, I don’t. One has nothing to do with [the] other.”
        {¶ 96} Maxwell argues that juror Gibson should have been excused as a
juror because she had been the victim of a sexual assault and her previous
relationship with the prosecutor’s office posed a risk that she would find the
prosecutor’s case against Maxwell more credible. Yet Gibson’s answers showed
that she would be a fair-minded juror.          Nothing indicates that Gibson’s
experiences as a sexual-assault victim would cause her to be biased against
Maxwell. Gibson also assured the court that her prior dealings with a different
Cuyahoga County prosecutor would not influence her consideration of Maxwell’s
case.   See State v. Allen, 73 Ohio St.3d 626, 629, 653 N.E.2d 675 (1995)
(prospective juror whose brother was a homicide victim permitted to remain as



                                        29
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capital juror after assuring the court that she could set that aside and remain
impartial). Thus, we hold that the trial court did not abuse its discretion in
rejecting this challenge for cause. We also reject Maxwell’s contention that the
defense was forced to use a peremptory challenge against Gibson.
        {¶ 97} Based on the foregoing, we overrule propositions V and VI.
4. Competency of child witness (Proposition of law III)
        {¶ 98} Maxwell argues that the trial court erred in finding that C.M. was
competent to testify at trial. He argues that the record fails to establish that C.M.
was able to distinguish right from wrong and understand the difference between
the truth and a lie.
        {¶ 99} Evid.R 601 provides: “Every person is competent to be a witness
except: (A) * * * children under ten years of age, who appear incapable of
receiving just impressions of the facts and transactions respecting which they are
examined, or of relating them truly.”
        {¶ 100} A trial court must conduct a voir dire examination of a child under
ten years of age to determine the child’s competence to testify. In making this
determination, the court must consider


        (1) the child’s ability to receive accurate impressions of fact or to
        observe acts about which he or she will testify, (2) the child’s
        ability to recollect those impressions or observations, (3) the
        child’s ability to communicate what was observed, (4) the child’s
        understanding of truth and falsity and (5) the child’s appreciation
        of his or her responsibility to be truthful.


State v. Frazier, 61 Ohio St.3d 247, 251, 574 N.E.2d 483 (1991).                     A
determination of competency is within the sound discretion of the trial court and
will not be reversed on appeal absent a clear abuse of discretion. Id. at 250-251.




                                           30
                                January Term, 2014




       {¶ 101} C.M. was five years old when she testified. She was one day
short of her fourth birthday when she witnessed her mother being killed. During
the voir dire examination to determine her competency, C.M. stated the name of
her brother and sister and mentioned that she attended preschool and knew her
teacher’s name. She stated that her favorite TV show was “Sponge Bob” and
named the characters on the show and mentioned their characteristics. C.M. also
identified photographs of the different rooms in her house. C.M. showed that she
knew what it meant to tell the truth and stated, “You will get in trouble” if you tell
a lie. Finally, C.M. related what happened the night her mother was killed. C.M.
stated that her “daddy” came to the house with a gun, that he was in her “Mommy
room,” and that the three of them went downstairs. Asked what Maxwell did with
the gun, she stated, “He shoot my mommy.”
       {¶ 102} Following voir dire, the trial court stated, “[C.M.] is capable of
receiving just impressions, she understands the importance of telling the truth,
and, therefore, the Court rules that she will be allowed to testify. She’s competent
as a witness in this case.”
       {¶ 103} Maxwell argues that the trial court abused its discretion because
nothing shows that C.M. understood the significance of upholding the oath or the
consequences of lying under oath. However, trial counsel objected to C.M.’s
competency on the grounds that she was unable to adequately recall “material
facts and impressions,” rather than her lack of understanding the significance of
an oath. Evid.R. 103(A) requires that an objection state the specific grounds upon
which it based. Thus, Maxwell’s objection to C.M.’s competency on different
grounds than he now complains about constitutes waiver absent a showing of
plain error. See State v. Wade, 53 Ohio St.2d 182, 188, 373 N.E.2d 1244 (1978).
       {¶ 104} C.M. was not asked whether she understood the significance of
taking an oath or lying under oath. But a child “need not have religious beliefs or
detailed knowledge of the nature of the oath.” State v. Eastham, 39 Ohio St.3d



                                         31
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307, 313, 530 N.E.2d 409 (1988) (Brown, J., concurring). Rather, “it must be
shown that the child understands the duty to tell the truth and that some
punishment will follow if the child fails to tell the truth.” Id. C.M. demonstrated
that she understood the concept of truthfulness and knew that there were
consequences for not telling the truth during voir dire:


               Q.   And, [C.M.], do you know the difference between
       telling the truth and telling a lie?
               A. Yes.
               Q. And what’s the difference?
               A. The difference, when you don’t tell the truth—
               Q. Uh-huh?
               A. —you could get in trouble.
               Q. Okay. And if you tell the truth, what happens? Is it
       good to tell the truth?
               A. Yes.
               Q. Okay. What happens if you tell a lie?
               A. You will get in trouble.


       {¶ 105} Thus, the record supports the trial court’s finding that C.M.
understood the importance of telling the truth in finding that she was competent.
Moreover, we do not find an abuse of discretion simply because C.M. was only
five years old at the time of trial. See State v. Fry, 125 Ohio St.3d 163, 2010-
Ohio-1017, 926 N.E.2d 1239, ¶ 73-87 (child witness who was six years old at trial
and five years old when he witnessed the murder competent to testify); State v.
Allard, 75 Ohio St.3d 482, 496-497, 663 N.E.2d 1277 (1996) (child eyewitness to
two murders who was five years old at trial and four years old when he witnessed
the murders competent to testify).




                                              32
                               January Term, 2014




       {¶ 106} As an alternative argument, Maxwell claims that the trial court
abused its discretion in finding C.M. competent because her testimony showed
she was confused and unable to accurately relate her observations. During cross-
examination, C.M. stated that she sometimes went horseback riding with her
father in the house. Maxwell claims that he went horseback riding with real
horses and not pretend horses and that C.M.’s answers showed her confusion and
possible fantasy.
       {¶ 107} Maxwell incorrectly asserts that this testimony was presented
during the competency hearing.         Instead, C.M.’s cross-examination about
horseback riding occurred during the state’s case-in-chief.       Once C.M. was
deemed competent to testify, her credibility, like that of any other witness, must
be determined by the trier of fact. 1 Giannelli, Evidence, Section 601.6, at 433
(3d Ed.2010). Thus, we reject Maxwell’s claim that this segment of C.M.’s cross-
examination shows that C.M. was incompetent.
       {¶ 108} In conclusion, we hold that the trial court committed no plain
error in finding that C.M. was competent to testify. Proposition III is overruled.
5. Miranda compliance (Proposition of law XIII)
       {¶ 109} Maxwell argues that the trial court erred in admitting his
statements to police at the time of his arrest, because the police had failed to
advise him of his Miranda rights before questioning him. Miranda v. Arizona,
384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).
       {¶ 110} Before trial, Maxwell moved to suppress statements that he made
in response to police questioning about whether he was armed at the time of his
arrest. During the suppression hearing, Agent Robert Riddlebarger testified that
on December 16, 2005, he and six other members of the Cleveland/Cuyahoga
County Fugitive/Gang Task Force went to a home on Jeffries Avenue in
Cleveland to arrest Maxwell.       Task-force members entered the house after
knocking on the door and not receiving a response. According to Riddlebarger,



                                         33
                             SUPREME COURT OF OHIO




the task force was “looking for persons, or * * * anything that might be used as a
weapon against us.” The team members searched the basement and the first-floor
area and found nothing. The entire task force then went upstairs to clear the
second floor. The team members separated and searched the two bedrooms on
that floor.
        {¶ 111} Team members cleared both bedrooms. In one bedroom, team
members noticed a crawl-space door behind the bed. They moved the bed,
opened the door, and found Maxwell.             Riddlebarger and Det. Zickes pulled
Maxwell out of the crawl space, placed him face down on the bed, and handcuffed
him. Riddlebarger testified, “At about the same time as he’s handcuffed, * * *
Detective Zickes asked Mr. Maxwell whether or not he was armed.” Maxwell
responded that “he did not have a gun anymore.”            Riddlebarger then patted
Maxwell down for weapons and searched his clothing to make sure that he did not
have any weapons on him. During the pat-down, Maxwell stated that he “had
gotten rid of the gun that he once had.”
        {¶ 112} The trial court overruled the defense motion to suppress
Maxwell’s statements. The court stated, “In this case, as in [New York v. Quarles,
467 U.S. 649, 659, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984)], there was a public
safety exception to the requirement that Miranda warnings be given before a
subject’s answers could be admitted into evidence * * *.” Later, Riddlebarger
testified during the state’s case-in-chief regarding Maxwell’s statements at the
time of his arrest.
        {¶ 113} Under Miranda, 384 U.S. at 444, 86 S.Ct. 1602, 16 L.Ed.2d 694,
“the prosecution may not use statements, whether exculpatory or inculpatory,
stemming from custodial interrogation of the defendant unless it demonstrates the
use of procedural safeguards effective to secure the privilege against self-
incrimination.” However, when officers ask “questions necessary to secure their
own safety or the safety of the public” as opposed to “questions designed solely to




                                           34
                                 January Term, 2014




elicit testimonial evidence from a suspect,” they do not need to provide the
warnings required by Miranda. New York v. Quarles, 467 U.S. 649, 659, 104
S.Ct. 2626, 81 L.Ed.2d 550 (1984).
          {¶ 114} In Quarles, the police apprehended a rape suspect in a
supermarket and discovered that he was wearing an empty shoulder holster.
Before reading Miranda rights to the suspect, an officer asked the suspect where
the gun was located. The suspect nodded toward some empty cartons and stated,
“[T]he gun is over there.” Quarles at 652. In upholding the admissibility of the
defendant’s statement, the court stated:


                 The police in this case * * * were confronted with the
          immediate necessity of ascertaining the whereabouts of a gun
          which they had every reason to believe the suspect had just
          removed from his empty holster and discarded in the supermarket.
          So long as the gun was concealed somewhere in the supermarket,
          with its actual whereabouts unknown, it obviously posed more than
          one danger to the public safety: an accomplice might make use of
          it, a customer or employee might later come upon it.


Id. at 657.
          {¶ 115} Recognizing a narrow exception to the Miranda rule, Quarles
reasoned that “the need for answers to questions in a situation posing a threat to
the public safety outweighs the need for the prophylactic rule protecting the Fifth
Amendment’s privilege against self-incrimination.” Id. In so holding, the court
stated:


          We decline to place officers * * * in the untenable position of
          having to consider, often in a matter of seconds, whether it best



                                           35
                             SUPREME COURT OF OHIO




       serves society for them to ask the necessary questions without the
       Miranda warnings and render whatever probative evidence they
       uncover inadmissible, or for them to give the warnings in order to
       preserve the admissibility of evidence they might uncover but
       possibly damage or destroy their ability to obtain that evidence and
       neutralize the volatile situation confronting them.


Id. at 657-658. Quarles indicated that this limited exception will not be difficult
for police officers to apply “because in each case it will be circumscribed by the
exigency which justifies it.” Id. at 658.
       {¶ 116} Maxwell argues that Quarles did not justify the police questioning
him about whether he was armed without first advising him of his Miranda rights.
Maxwell argues that he was handcuffed before he was asked about the weapon.
He also argues that the public-safety exception does not apply, because he was
arrested inside a private home that had been completely secured by the police.
       {¶ 117} In United States v. Williams, 483 F.3d 425, 428 (6th Cir.2007),
the United States Court of Appeals for the Sixth Circuit set forth the standard that
the government must satisfy in order for custodial statements made before any
Miranda warnings to be admissible under the Quarles public-safety exception.
“For an officer to have a reasonable belief that he is in danger,” and thus for the
exception to apply, “he must have reason to believe (1) that the defendant might
have (or recently have had) a weapon, and (2) that someone other than police
might gain access to that weapon and inflict harm with it.” Id. at 428. Williams
stated that this evaluation of the applicability of the Quarles exception “takes into
consideration a number of factors, which may include the known history and
characteristics of the suspect, the known facts and circumstances of the alleged




                                            36
                                      January Term, 2014




crime, and the facts and circumstances confronted by the officer when he
undertakes the arrest.”1 Id.
           {¶ 118} In the present case, the first condition was satisfied because the
members of the task force had a reasonable belief that Maxwell might possess a
weapon. Evidence suggested that he possessed weapons and had recently shot
Nichole. But the second condition was not met. When Maxwell was questioned,
the task force had secured the premises, performed a sweep of the house, and
determined that no one else was present.                     Maxwell was handcuffed and
surrounded by several task-force members. The house was under full control of
the agents during the questioning. These facts contrast with those of Quarles, in
which a discarded gun in a supermarket presented a threat to public safety.
           {¶ 119} Nevertheless, the state argues that Det. Zickes could ask Maxwell
whether or not he was armed because an officer’s safety is always at risk,
especially when the arrest occurs in the defendant’s home. But the Williams test
provides that in applying the Quarles exception, it is necessary to consider the
facts and circumstances confronted by the police at the time of arrest, and here,
nothing suggested that Maxwell might gain access to a weapon and inflict harm
with it.
           {¶ 120} In United States v. Kellogg, 306 Fed.Appx. 916 (6th Cir.2009),
the court evaluated a similar fact situation involving the application of the public-
safety exception. In Kellogg, the police asked the defendant, who was suspected
of bank robbery, whether he had a gun or drugs on the premises before searching
his home. Id. at 918. The court rejected claims that the public-safety exception


1. Some Ohio courts of appeals have adopted a four-part test to determine whether the public-
safety exception applies: “ ‘In order to establish that the exception is warranted in any given case,
the State must show that: (1) there was an objectively reasonable need to protect the police or the
public, (2) from an immediate danger, (3) associated with a weapon, and that (4) the questions
asked were related to that danger and reasonably necessary to secure public safety.’ (Emphasis
sic.)” State v. Garnett, 10th Dist. Franklin No. 09AP-1149, 2010-Ohio-5865, ¶ 32, quoting State
v. Jergens, 2d Dist. No. 13294 (Sept. 3, 1993).




                                                 37
                              SUPREME COURT OF OHIO




allowed defendant’s incriminating responses to be admitted at trial. The court
stated that the suspicion that the defendant had recently committed a bank robbery
satisfied the first prong of the Williams standard. Id. at 924. However, the court
stated that the second prong of the Williams standard was not met:


       [S]ince the arresting officers had just ordered all of the occupants
       out of the duplex, handcuffed Kellogg and conducted a security
       sweep of the residence, there was no reason to believe that a
       weapon would be immediately accessible to individuals other than
       police. Thus, the immediate danger to the officers or the public
       was insufficient to justify the officers’ failure to inform Kellogg of
       his rights prior to eliciting incriminating statements regarding the
       items in the duplex.


Id. See also United States v. Brathwaite, 458 F.3d 376, 382 (5th Cir.2006), fn. 8
(rejecting application of the public-safety exception where police secured the
suspect and his coresidents, conducted two security sweeps, and gained control
over the residence).
       {¶ 121} Maxwell made two statements after Det. Zickes asked him
whether he was armed. His first statement, that he did not have a gun anymore,
was in direct response to Zickes’s question. His second statement, that “he got rid
of the gun that he once had,” was made while Riddlebarger was patting him
down. Riddlebarger testified that this was an unsolicited response and was not
made in response to further questioning.
       {¶ 122} The admissibility of Maxwell’s second statement depends on
whether it was a continuation of his response to police questioning about whether
he was armed. In determining whether one statement is a continuation of the
previous statement, a court should consider factors such as whether the content in




                                        38
                               January Term, 2014




the statements overlap, the timing and setting of each statement, and the
continuity of personnel. See State v. Clark, 7th Dist. Mahoning No. 08MA15,
2009-Ohio-3328, 2009 WL 1915211, ¶ 24. Maxwell’s second response was made
seconds after his first response, addressed the same matter, and was made to the
same officers in the room.      Thus, we conclude that both statements were
improperly obtained in violation of Miranda.
       {¶ 123} Because Maxwell’s statements were improperly admitted into
evidence, we must determine whether the error was reversible or harmless. “A
constitutional error can be held harmless if we determine that it was harmless
beyond a reasonable doubt.” State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-
791, 842 N.E.2d 996, ¶ 78, citing Chapman v. California, 386 U.S. 18, 24, 87
S.Ct. 824, 17 L.Ed.2d 705 (1967). We hold that the erroneous admission of
Maxwell’s statements was harmless beyond a reasonable doubt in view of the
remaining evidence establishing Maxwell’s guilt.
       {¶ 124} Properly admitted evidence provided overwhelming evidence of
Maxwell’s guilt. Gregg testified that Maxwell was very upset after Nichole
testified at the grand jury and that he said, “[T]he bitch is going to make me kill
her.” He also asked Gregg where he could get a gun. Four days later, Maxwell
violated a temporary protection order and went to Nichole’s house with a gun.
Lauretta confronted Maxwell at the house, Maxwell fired shots, and she observed
Maxwell standing over Nichole’s body before he fled the scene. C.M. also
witnessed Maxwell shooting her mother. Moreover, Maxwell called Gregg and
admitted shooting Nichole that night.
       {¶ 125} Based on the foregoing, we overrule proposition XIII.




                                        39
                             SUPREME COURT OF OHIO




6. Admissibility of Nichole’s phone conversation with Maxwell (Proposition of
law XIV)
       {¶ 126} Maxwell argues that the trial court erred by admitting a segment
of Nichole’s telephone conversation with him, because it was inadmissible
hearsay and violated his Sixth Amendment right to confrontation.
       {¶ 127} On November 23, 2005, Nichole testified before the grand jury
about the felonious assault. That evening, Maxwell called Gregg and told him
that he had been trying to talk to Nichole about her grand jury testimony but had
been unable to contact her. Maxwell then phoned Nichole while Gregg remained
on the line, and Gregg heard their conversation. Gregg testified as follows:


               Q: And did Mr. Maxwell say anything to Ms. McCorkle?
               A: Yes, he did.
               Q: What did he say?
               A: He asked her what had happened in court that day.
               Q: Did she respond?
               Mr. Luskin [defense counsel]: Objection.
               A: Yes, she did.
               The Court: Overruled.
               Q: What did she say?
               Mr. Rein [defense counsel]: Objection.
               The Court: Overruled.
               A: She had told him that—she was very sincere when she
       said it—but she said I told the truth. I had to tell the truth.
               Q: After she tells him that, how long after that—how long
       was the conversation all together?
               A: A few minutes, not real long. Four or five minutes.




                                          40
                                January Term, 2014




               Q: Was there much conversation after she told him that she
       had to tell the truth?
               A: No, there was not.


       {¶ 128} Maxwell argues that Nichole’s statement that she “told the truth”
was inadmissible hearsay and constituted a testimonial statement that violated the
Confrontation Clause in violation of Crawford 541 U.S. 36, 124 S.Ct. 1354, 158
L.Ed.2d 177. The state argues that Nichole’s statement was not admitted for the
truth of the matter asserted and was not a testimonial statement.
       {¶ 129} Out-of-court statements offered to prove the truth of the matter
asserted are generally inadmissible as hearsay.      Evid.R. 801 and 802.       If a
statement is not offered for the truth of the matter asserted, however, it is not
prohibited by the hearsay rule and will be admissible, subject to the standards
governing relevancy and undue prejudice. Evid.R. 402 and 403; State v. LaMar,
95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 59. “It is well established
that extrajudicial statements made by an out-of-court declarant are properly
admissible to explain the actions of a witness to whom the statement was
directed.” State v. Thomas, 61 Ohio St.2d 223, 232, 400 N.E.2d 401 (1980); see
also 2 Giannelli, Evidence, Section 801.10, at 138 (3d Ed.2010).
       {¶ 130} Nichole’s statement that she testified truthfully before the grand
jury was not offered to prove the truth of the matter asserted but to prove the
effect of the statement on the listener, Maxwell. The statement was relevant
because it set into motion the chain of events leading to the confrontation between
Maxwell and Nichole and her shooting a few nights later. Thus, the trial court did
not err in admitting Nichole’s statement.
       {¶ 131} We also reject Maxwell’s Crawford claim.             In Crawford, the
Supreme Court held that it is a violation of the Confrontation Clause to admit
“testimonial statements of a witness who did not appear at trial unless he was



                                         41
                             SUPREME COURT OF OHIO




unavailable to testify and the defendant had had a prior opportunity for cross-
examination.” Crawford, 541 U.S. at 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177.
Crawford also stated that the Confrontation Clause “does not bar the use of
testimonial statements for purposes other than establishing the truth of the matter
asserted.” Id. at 59, fn. 9, citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct.
2078, 85 L.Ed.2d 425 (1985).
       {¶ 132} Nichole’s statement did not implicate Maxwell’s confrontation
rights. Nichole’s out-of-court statement, repeated by Gregg, served the purpose
of explaining how certain events came to pass or why Maxwell confronted and
shot Nichole. See United States v. Cromer, 389 F.3d 662, 676 (6th Cir.2004).
Because the statements were not offered to establish the truth of the matter
asserted, the Confrontation Clause did not apply.
       {¶ 133} Based on the foregoing, we overrule proposition XIV.
7. Victim-impact testimony (Proposition of law X)
       {¶ 134} Maxwell argues that the trial court erred in admitting victim-
impact testimony during the guilt phase of the trial. Except where noted, defense
counsel failed to object to such evidence and thus waived all but plain error. See
State v. Reynolds, 80 Ohio St.3d 670, 679, 687 N.E.2d 1358 (1998).
       {¶ 135} “Evidence relating to the facts attendant to the offense is ‘clearly
admissible’ during the guilt phase, even though it might be characterized as
victim-impact evidence.” State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-
6046, 837 N.E.2d 315, ¶ 98, quoting State v. Fautenberry, 72 Ohio St.3d 435,
440, 650 N.E.2d 878 (1995).
       {¶ 136} First, Maxwell complains that Nichole’s sister, Michelle Kenney,
provided improper victim-impact testimony about family history and other
personal matters. Michelle mentioned the names and ages of Nichole’s children
and her siblings and stated that Nichole had been married and divorced but kept
her married name. Michelle also described the inside of Nichole’s home at 1046




                                         42
                               January Term, 2014




East 146th Street. Maxwell also complains that Michelle testified that Nichole
wanted the women’s biological father, Heinz Kenney, to move into her house
after he was released from prison in July 2005 “because he was sick and
everything.”
       {¶ 137} The testimony about Nichole’s family and her divorce provided
background information about Nichole’s relationship with Maxwell and the
witnesses who testified. Testimony about family members living at the house and
information about the layout of the house showed the people who had access to
the house and described where the shooting occurred. Moreover, none of this
testimony was overly emotional. Thus, we hold that no plain error occurred.
       {¶ 138} Second, Maxwell contends that Michelle and Lauretta Kenney
improperly testified about their frequent phone contact with Nichole. Michelle
testified that she had daily contact with Nichole and talked with her on the phone
every day. Lauretta also testified that she had daily contact with Nichole and
spoke to her on the phone “[f]our or five times a day.”
       {¶ 139} Maxwell also asserts that Michelle improperly testified that after
the shooting, she went to the hospital and saw Nichole “laying on an ambulance
gurney * * * and she had all these tubes in her and she had a hose in her head and
it was just blood everywhere.” Michelle also mentioned that family members
discussed the possibility that they might have to decide whether to continue
Nichole on life support.     However, Nichole died before that decision was
necessary.
       {¶ 140} Michelle’s and Lauretta’s frequent phone contact with Nichole
was relevant in explaining their awareness of and involvement in the events
leading up to Nichole’s murder. Michelle’s graphic description of Nichole’s
medical condition at the hospital and her testimony about the family discussion on
discontinuing life support were of more questionable relevance. But we hold that
no plain error resulted from admitting this testimony.



                                        43
                             SUPREME COURT OF OHIO




        {¶ 141} Third, Maxwell argues that the prosecutor improperly had C.M.
identify a photograph of her mother. However, Maxwell is incorrect. C.M.
identified a photograph of the bloodstained carpet where her mother was lying
after she had been shot. Nichole’s body was not in the picture. Thus, we reject
this claim.
        {¶ 142} Finally, Maxwell complains that Dr. Joseph Felo, the chief deputy
coroner for Cuyahoga County, improperly testified about the pain that Nichole
must have suffered from one of the gunshot wounds. Dr. Felo testified that one of
the gunshot wounds went through the right eyeball and that there would have
been “excruciating pain associated with that.” The trial court sustained a defense
objection to this testimony and instructed the jury to disregard the answer.
        {¶ 143} Maxwell suffered no prejudice from Dr. Felo’s testimony about
pain that Nichole suffered, because the trial court instructed the jurors to disregard
Dr. Felo’s comments. See State v. Heinish, 50 Ohio St.3d 231, 241, 553 N.E.2d
1026 (1990) (“Where a jury is cautioned and a correction is given to the jury, the
effect of improper evidence may be cured”).          The trial court also sustained
objections on two other occasions when Dr. Felo began to refer to the victim’s
pain.
        {¶ 144} Based on the foregoing, we overrule proposition X.
8. Sufficiency of the evidence (Proposition of law VII)
                    a. Evidence of prior calculation and design
        {¶ 145} Maxwell argues that the state failed to prove that he murdered
Nichole with prior calculation and design as charged in Count One.
        {¶ 146} When a court reviews a record for sufficiency, “[t]he relevant
inquiry is whether, after viewing the evidence in a light most favorable to the
prosecution, any rational trier of fact could have found the essential elements of
the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259,
574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v.




                                         44
                                 January Term, 2014




Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “[T]he weight to
be given the evidence and the credibility of the witnesses are primarily for the
trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967),
paragraph one of the syllabus.
       {¶ 147} Maxwell was convicted of one count of aggravated murder under
R.C. 2903.01(A), which states:       “No person shall purposely, and with prior
calculation and design, cause the death of another * * *.”
       {¶ 148} No bright-line test exists that “emphatically distinguishes between
the presence or absence of ‘prior calculation and design.’ Instead, each case turns
on the particular facts and evidence presented at trial.” State v. Taylor, 78 Ohio
St.3d 15, 20, 676 N.E.2d 82 (1997). However, when the evidence presented at
trial “reveals the presence of sufficient time and opportunity for the planning of
an act of homicide to constitute prior calculation, and the circumstances
surrounding the homicide show a scheme designed to implement the calculated
decision to kill, a finding by the trier of fact of prior calculation and design is
justified.” State v. Cotton, 56 Ohio St.2d 8, 381 N.E.2d 190 (1978), paragraph
three of the syllabus.
       {¶ 149} Maxwell argues that the evidence shows that he spontaneously
shot Nichole after observing her with another man, kissing him goodnight, and
receiving phone calls from him at home. Thus, Maxwell asserts that the evidence
is insufficient to support a conviction of prior calculation and design.
       {¶ 150} Maxwell’s argument overlooks the evidence showing that he shot
Nichole in retaliation for her failure to change her grand jury testimony about the
felonious assault. Gregg testified that at Maxwell’s behest, he had contacted
Nichole and asked her to “stick to the story that it was a simple domestic”
incident when she testified before the grand jury. Nichole later told Maxwell that
she had told the truth during her grand jury testimony. Maxwell then told Gregg




                                         45
                             SUPREME COURT OF OHIO




that “the bitch was going to make him kill her” and asked Gregg where he could
get a gun. Maxwell went to Nichole’s home and killed her four days later.
       {¶ 151} We have previously held that a defendant’s threat to obtain a
weapon and kill his victim and his later actions carrying out that threat are enough
to prove prior calculation and design. Conway, 108 Ohio St.3d 214, 2006-Ohio-
791, 842 N.E.2d 996, at ¶ 45; State v. Sowell, 39 Ohio St.3d 322, 333, 530 N.E.2d
1294 (1988). Maxwell announced his intention to kill Nichole, and he never
abandoned that plan. Moreover, according to Gregg’s testimony, Maxwell told
Gregg that when he shot Nichole “she fell down and * * * she moved and then he
shot her again.” The second gunshot belies Maxwell’s argument that the murder
was spontaneous, and his actions show that he was carrying out his stated
intention to kill Nichole for testifying against him.
       {¶ 152} In Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239,
we addressed a similar fact situation. On July 18, 2005, Fry and Tamela Hardison
had a fight in the apartment where they lived. Id. at ¶ 7. Hardison then filed
charges against Fry for assault and aggravated menacing. Id. at ¶ 148. While in
pretrial custody, Fry told Hardison to go to court and drop the charges. On July
21, Fry told Hardison that he had received paperwork that she had signed saying
that he had assaulted and threatened her. During that conversation, Fry told
Hardison, “I got two of them under my belt * * * toe tags,” meaning that he had
killed two people. He then told Hardison, “Fix this.” Id. at ¶ 150. Fry was
released from jail on July 25 and killed Hardison on July 31. We upheld the
sufficiency of the evidence and stated that there was sufficient time, reflection,
and activity involved in Hardison’s murder to show that Fry killed her with prior
calculation and design. Id. at ¶ 157.
       {¶ 153} Just as in Fry, Maxwell demanded that Nichole lie to the grand
jury to have his charges reduced. Maxwell later learned that Nichole had told the
truth during her grand jury testimony, and he then expressed his intent to kill




                                          46
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Nichole. As in Fry, several days elapsed, and then Maxwell went to Nichole’s
house and killed her. Construing the evidence in a light most favorable to the
prosecution, a rational juror could have concluded beyond a reasonable doubt that
Maxwell had formulated a plan to kill Nichole. Thus, we hold that there was
sufficient time, reflection, and activity involved in Nichole’s murder to show that
Maxwell killed her with prior calculation and design.
   b. Evidence proving witness-murder specification (Proposition of law VIII)
       {¶ 154} Maxwell argues that the state failed to prove his guilt on the
witness-murder specification.
       {¶ 155} Maxwell was convicted of the R.C. 2929.04(A)(8) death-penalty
specification that the victim “was a witness to an offense and was purposely killed
in retaliation for the victim’s testimony in any criminal proceeding.”
       {¶ 156} Maxwell continues to argue that the evidence showed that he
killed Nichole because he was upset with her for socializing with another man and
kissing him goodnight. Maxwell asserts that this motive superseded evidence that
he murdered Nichole in retaliation for her grand jury testimony. Thus, he argues
that the evidence is insufficient to support an (A)(8) finding.
       {¶ 157} As discussed in proposition of law VII, the evidence shows that
Gregg, at Maxwell’s behest, contacted Nichole and attempted to persuade her to
change her grand jury testimony to obtain a charge reduction against Maxwell.
Upon learning that Nichole did not change her testimony, Maxwell stated his
intent to kill Nichole and asked Gregg where he could get a gun. Maxwell shot
and killed Nichole four days later.
       {¶ 158} Although the evidence supports a finding that Maxwell killed
Nichole for testifying against him, the state was not required to prove that that
was Maxwell’s sole reason for killing Nichole. Fry, 125 Ohio St.3d 163, 2010-
Ohio-1017, 926 N.E.2d 1239, at ¶ 153. Even assuming that jealousy was also a




                                         47
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motive for the murder, we hold that the state presented sufficient evidence to
prove the R.C. 2929.04(A)(8) specification.
       c. Elements of witness-murder specification (Proposition of law IX)
       {¶ 159} Maxwell maintains that the state failed to present sufficient
evidence to prove the R.C. 2929.04(A)(8) specification, that he killed Nichole to
prevent her “testimony in any criminal proceeding.”
       {¶ 160} Nichole testified before the grand jury on Wednesday, November
23, 2005. According to Brian Mooney, Cuyahoga County assistant prosecutor at
the time of the murder, the grand jury returned a true bill against Maxwell for
felonious assault, abduction, and domestic violence on November 23. Because
the next day was Thanksgiving, the indictment was not filed with the clerk of
court until Monday, November 28, 2005.
       {¶ 161} Maxwell argues that the (A)(8) specification is inapplicable
because the indictment for felonious assault was not filed until the day after the
murder and no criminal proceeding was underway. In support of this argument,
Maxwell cites R.C. 2901.13(E), which states, “A prosecution is commenced on
the date an indictment is returned or an information filed * * *.” He also cites
Crim.R. 55(A), which states: “An action is commenced for purposes of this rule
by the earlier of, (a) the filing of a complaint, * * * indictment, or information
with the clerk, or (b) the receipt by the clerk of the court of common pleas of a
bind over order under Rule 5(B)(4)(a).”
       {¶ 162} R.C. 2929.04(A)(8) does not require that a criminal action be
pending when the defendant kills the witness. Indeed, a defendant can be charged
with the witness-murder specification in situations in which no criminal
proceeding has been initiated at the time the victim was murdered. State v.
Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 55. The statute
requires only (1) that the victim was a witness to an offense and (2) that the




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purpose of killing the witness was to prevent the victim from testifying in a
criminal proceeding. Id.
       {¶ 163} As discussed above, the evidence established that Maxwell killed
Nichole because she testified against him before the grand jury. Accordingly, we
hold that Maxwell’s guilt of the R.C. 2929.04(A)(8) specification was established
by proof beyond a reasonable doubt even though the indictment for felonious
assault was not filed until the day after Nichole’s murder.
       {¶ 164} Based on the foregoing, we reject propositions VII, VIII, and IX.
                              B. Penalty-phase issues
1. Ineffective assistance of counsel (Proposition of law I)
       {¶ 165} Maxwell argues that his counsel failed to develop and present
evidence of his mental retardation, failed to investigate and present mitigating
evidence, and committed other errors during the penalty phase.
                a. Failure to present evidence of mental retardation
       {¶ 166} Maxwell argues that trial counsel failed to properly develop
evidence showing that he was mentally retarded and failed to request a hearing to
determine whether he was mentally retarded pursuant to Atkins v. Virginia, 536
U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). He also argues that trial
counsel failed to present such evidence during mitigation. Maxwell relies on
evidence presented during his competency proceedings and testimony presented
during the penalty phase.
                                     (1) Facts
       {¶ 167} During the competency hearing, Dr. Michael Aronoff, a
psychologist at the Court Psychiatric Clinic, testified that he had evaluated
Maxwell and administered the Wechsler Abbreviated Scale of Intelligence. These
test results showed that Maxwell had a full-scale IQ score of 72, which is in the
borderline range. He also had a verbal IQ score of 68, which is in the range of
mild mental retardation, and a performance IQ score of 83, which is in the low



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average range. Dr. Aronoff testified that earlier IQ test scores were not found in
Maxwell’s school records or any other records.
       {¶ 168} Dr. Aronoff administered other tests, including the Competency
Assessment    to   Stand   Trial    for   Defendants   with   Mental   Retardation
(“CAST*MR”). Dr. Aronoff testified that Maxwell’s low score on that test was
significant “because he didn’t come up with a mentally retarded IQ score and he’s
had prior experience with the legal system.” Due to the possibility of malingering
on the CAST*MR, Dr. Aronoff recommended that Maxwell be referred to the
court evaluation unit of the North Coast Behavioral Health Care System for a 20-
day inpatient competency evaluation. The trial court ordered that Maxwell be
referred for such treatment.
       {¶ 169} Dr. Alice Cook, a clinical psychologist, evaluated Maxwell during
his inpatient treatment at North Coast. During the competency hearing, Dr. Cook
testified that she performed no additional testing but was aware that Maxwell had
attained a verbal IQ score of 68 during earlier testing. But Dr. Cook indicated
that Maxwell was not mentally retarded. She stated, “In order to have a diagnoses
of mental retardation, it needed to be identified prior to the age of 18, and there
was no indication of any records from anyplace that he had been identified prior
to age 18 as being mentally retarded.”
       {¶ 170} During the competency proceedings, defense counsel mentioned
that Dr. John Fabian, a board-certified psychologist, had also met with Maxwell
to assess his condition. Dr. Fabian was not called as a witness, and his assessment
of Maxwell was never introduced. Following the competency hearing, the trial
court ruled that Maxwell was competent to stand trial. Defense counsel presented
no argument that Maxwell was mentally retarded and did not request an Atkins
hearing.
       {¶ 171} During the penalty phase, Dr. Sandra McPherson, a clinical
psychologist, testified as a defense mitigation witness. Dr. McPherson evaluated




                                          50
                                January Term, 2014




Maxwell and administered the Wechsler Adult Intelligence Scale and wide-range
achievement test. Dr. McPherson testified that Maxwell attained a full-scale IQ
score of 84, which placed him in the low average range. Maxwell also attained a
performance IQ score of 95 and a verbal IQ score of 77.
                                    (2) Analysis
       {¶ 172} On June 20, 2002, the Supreme Court of the United States ruled
that the execution of a mentally retarded criminal violates the Eighth
Amendment’s ban on cruel and unusual punishments. Atkins v. Virginia, 536
U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335. Atkins left to the states “ ‘the task of
developing appropriate ways to enforce the constitutional restriction’ ” on
executing the mentally retarded. Id. at 317, quoting Ford v. Wainwright, 477 U.S.
399, 405, 416-417, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986).
       {¶ 173} In State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d
1011, this court developed procedures and substantive standards for resolving
Atkins claims. Lott adopted a three-part test, which had been cited with approval
in Atkins, 536 U.S. at 308, fn. 3, that defined mental retardation as (1)
significantly subaverage intellectual functioning, (2) significant limitations in two
or more adaptive skills, such as communication, self-care, and self-direction, and
(3) onset before the age of 18. Lott at ¶ 12. Lott went on to state:


       Most state statutes prohibiting the execution of the mentally
       retarded require evidence that the individual has an IQ of 70 or
       below. * * * While IQ tests are one of many factors that need to
       be considered, they alone are not sufficient to make a final
       determination on this issue.      * * *     We hold that there is a
       rebuttable presumption that a defendant is not mentally retarded if
       his or her IQ is above 70.




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Id.
       {¶ 174} First, Maxwell argues that trial counsel were ineffective by failing
to request an Atkins hearing because IQ testing administered by Dr. Aronoff
showed that he had a verbal IQ score of 68.
       {¶ 175} In order for counsel’s inadequate performance to constitute a
Sixth Amendment violation, Maxwell must show that counsel’s performance was
deficient and prejudiced him. Strickland, 466 U.S. at 687, 104 S.Ct. 2052, 80
L.Ed.2d 674.     Strickland requires that courts “apply[] a heavy measure of
deference to counsel’s judgments” and “indulge a strong presumption that
counsel’s conduct falls within the wide range of reasonable professional
assistance.” Id. at 691 and 689.
       {¶ 176} Maxwell fails to establish that trial counsel were deficient in
failing to request an Atkins hearing. The results of two full-scale IQ tests showed
that Maxwell’s IQ was above 70. Dr. McPherson testified that Maxwell’s IQ
score was 84, which is significantly higher than the Lott cutoff level. There is
also no evidence that Maxwell suffered “significant limitations in two or more
adaptive skills.” Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, at
¶ 2. Finally, Dr. Cook testified that Maxwell is not mentally retarded, because
there was “no indication” of “any records from anyplace that he had been
identified prior to age 18 as being mentally retarded.” Id.
       {¶ 177} Maxwell argues that trial counsel were ineffective by allowing
Maxwell to be retested after earlier testing had potentially excluded him from
death eligibility.   But Maxwell has not shown how Dr. McPherson’s testing
amounted to deficient performance. Dr. McPherson was an expert in this area,
and she determined which tests to administer. See State v. Leonard, 104 Ohio
St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 150.
       {¶ 178} Moreover, if trial counsel had requested an Atkins hearing, the
trial court would have conducted a de novo review of the evidence in determining




                                         52
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whether the defendant was mentally retarded. See Lott at ¶ 18. Lott states, “The
trial court should rely on professional evaluations of [a defendant’s] mental status,
and consider expert testimony, appointing experts if necessary in deciding this
matter.” Id. Thus, it is very likely that the trial court would have appointed other
experts to evaluate Maxwell and further testing would have been administered to
determine whether he was mentally retarded. Such testing would have likely
included the use of more definitive tests, like the Wechsler Adult Intelligence
scale, which Dr. McPherson administered.
       {¶ 179} Maxwell also argues the additional test results were invalid
because they failed to take into account the “Flynn effect.” The Flynn effect
postulates that IQ scores rise over time and that IQ tests that are not renormed to
adjust for rising IQ levels will overstate a testee’s IQ. Walker v. True, 399 F.3d
315, 322 (4th Cir.2005).       However, nothing about Maxwell’s Flynn-effect
adjusted IQ scores was presented during the trial or appears in the record. “A
reviewing court cannot add matter to the record before it, which was not part of
the trial court’s proceedings, and then decide the appeal on the basis of the new
matter.” State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph
one of the syllabus. Thus, these speculative claims are rejected.
       {¶ 180} Second, Maxwell argues that trial counsel were ineffective in
failing to present evidence of his low intelligence during the penalty phase.
Maxwell claims that counsel were deficient by failing to call Dr. Aronoff as a
mitigation witness to testify about Maxwell’s borderline intellectual functioning
and his low IQ scores. “The defense decision to call or not call a mitigation
witness is a matter of trial strategy. * * * Likewise, the scope of questioning is
generally a matter left to the discretion of defense counsel. Debatable trial tactics
generally do not constitute ineffective assistance of counsel.”     State v. Elmore,
111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 116.




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       {¶ 181} While it is unclear why trial counsel did not call Dr. Aronoff as a
witness, trial counsel could have legitimately decided not to call Dr. Aronoff as a
witness in order to avoid further discussion about Maxwell’s possible malingering
when taking the CAST*MR test.            Moreover, Dr. McPherson discussed Dr.
Aronoff’s evaluations and findings that documented Maxwell’s “borderline
intellectual functioning * * * at the time based on the WASI, a shorter form of the
Wechsler Adult Intelligence Scale.” The decision to present Dr. McPherson’s
summary of Dr. Aronoff’s findings instead of calling Dr. Aronoff as a witness
was a matter of trial strategy and does not constitute ineffective assistance. See
State v. Keith, 79 Ohio St.3d 514, 530, 684 N.E.2d 47 (1997) (“the presentation of
mitigating evidence is a matter of trial strategy”).
       {¶ 182} In addition, the record shows that the decision not to call Dr.
Aronoff as a witness did not result from a lack of investigation. Maxwell’s
lawyers knew that Dr. Aronoff existed and what his testimony would be. Because
Maxwell’s counsel knew what Dr. Aronoff had to say, counsel’s decision not to
call him as a witness during the penalty phase is “ ‘virtually unchallengeable.’ ”
State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 158,
quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052, 80 L.Ed.2d 674.
       {¶ 183} Maxwell cites the ABA guidelines, which state, “Counsel’s duty
to investigate and present mitigating evidence is now well established.”
Guidelines for the Appointment and Performance of Defense Counsel in Death
Penalty Cases, Guideline 10.7, comment, 80 (Rev.Ed.2003). Maxwell argues that
these guidelines required trial counsel to present Dr. Aronoff’s testimony about
Maxwell’s low IQ scores. But the ABA guidelines are not “inexorable demands”
with which all capital defense counsel must fully comply. Van Hook, 558 U.S. at
8, 130 S.Ct. 13, 175 L.Ed.2d 255. Moreover, “[a]ttorneys are not expected to
present every potential mitigation theory, regardless of their relative strengths.”




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                               January Term, 2014




Fears v. Bagley, 462 Fed.Appx. 565, 576 (6th Cir.2012). Thus, trial counsel were
not duty-bound to present Dr. Aronoff’s testimony.
       {¶ 184} Third, Maxwell argues that trial counsel were ineffective by
failing to request instructions that would have allowed the jury to make an Atkins
finding.    But trial counsel were not ineffective by failing to request such
instructions, because the jury does not decide whether a capital defendant is
mentally retarded. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263,
at ¶ 187.
       {¶ 185} Finally, Maxwell argues that trial counsel were ineffective by
failing to make a penalty-phase closing argument that discussed his low
intelligence as a mitigating factor. During the penalty-phase opening statements,
trial counsel told jurors that the defense mitigation would consist of testimony
from family members, friends, and coworkers about Maxwell’s life, and
testimony from Dr. McPherson about mitigating factors that she had found.
During closing arguments, trial counsel did not make an argument about
Maxwell’s low intelligence. Rather, trial counsel argued residual doubt, a sole
juror’s ability to prevent the death penalty, Maxwell’s alcohol abuse, testimony
that Maxwell is a kind and good-hearted man, and the reality of a life sentence as
a sentencing option.
       {¶ 186} Trial counsel’s argument appears to reflect a decision to downplay
Maxwell’s mental deficiencies as a mitigating factor while emphasizing other
factors, such his family background and the realities of serving life in prison as
punishment. Maxwell has failed to demonstrate that trial counsel’s argument was
professionally unreasonable. See Bobby v. Bies, 556 U.S. 825, 836, 129 S.Ct.
2145, 173 L.Ed.2d 1173 (2009), quoting Atkins v. Virginia, 536 U.S. 304, 321,
122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (“ ‘[R]eliance on mental retardation as a
mitigating factor can be a two-edged sword that may enhance the likelihood that
the aggravating factor of future dangerousness will be found by the jury’ ”).



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Moreover, Maxwell fails to show prejudice, as it cannot be said that there was a
reasonable likelihood of a different outcome had defense counsel argued
Maxwell’s low intelligence as a mitigating factor.
                        b. Failure to prepare for mitigation
        {¶ 187} Maxwell argues that trial counsel were also ineffective because
they were unprepared for the penalty-phase hearing.
        {¶ 188} Maxwell argues that trial counsel showed that they were
unprepared for mitigation by requesting a continuance on the first day of the
penalty-phase proceedings. The jury returned its guilt-phase verdict on February
23, 2007, and the penalty-phase proceedings began on February 27, 2007. On the
afternoon of February 27, trial counsel filed a motion requesting a continuance in
the mitigation proceedings because they had not had adequate time to prepare a
meaningful defense. Trial counsel’s reasons for a continuance were Maxwell’s
mental illness, counsel’s continued inability to properly communicate with
Maxwell, and the prosecution’s failure to provide the defense with records that
the state wanted to be considered during mitigation. The prosecutor responded
that there were no records that the state planned to present during its case-in-chief.
The trial court denied the motion for a continuance.
        {¶ 189} The presentation of mitigating evidence is a matter of trial
strategy. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596,
¶ 74.   Counsel in a capital case has an “obligation to conduct a thorough
investigation of the defendant’s background” to determine the availability of
mitigating evidence. Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146
L.Ed.2d 389 (2000).
        {¶ 190} Counsel’s “investigations into mitigating evidence ‘should
comprise efforts to discover all reasonably available mitigating evidence and
evidence to rebut any aggravating evidence that may be introduced by the
prosecutor.’ ” (Emphasis sic.) Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct.




                                         56
                                 January Term, 2014




2527, 156 L.Ed.2d 471 (2003), quoting ABA Guidelines for the Appointment and
Performance of Counsel in Death Penalty Cases, section 11.4.1(C), 93 (1989).


              This constitutionally required background investigation is
       necessary to enable counsel to make strategic choices about
       presenting a mitigation defense. * * * Indeed, the deference owed
       to counsel’s strategic judgments about mitigation is directly
       proportional to the adequacy of the investigations supporting such
       judgments. Accordingly, when evaluating the reasonableness of
       counsel’s mitigation strategy in a capital case, “a reviewing court
       must consider the reasonableness of the investigation said to
       support that strategy.”


Jells v. Mitchell, 538 F.3d 478, 492 (6th Cir.2008), quoting Wiggins, 539 U.S. at
527.
       {¶ 191} Trial counsel employed a criminal investigator, a clinical
psychologist who was a mitigation specialist, and another psychologist who was a
mitigation expert.   The mitigation specialist interviewed Maxwell on several
occasions beginning in May 2006. Dr. McPherson reviewed Maxwell’s school
records, prison records, and the records from his competency assessments. Thus,
the defense had thoroughly prepared for the penalty phase.
       {¶ 192} Nevertheless, Maxwell argues that the record shows that trial
counsel were unprepared for the penalty phase.        First, Maxwell argues that
counsel failed to develop evidence that his mental illness prevented him from
communicating with counsel during the penalty phase. However, the trial court
ruled that Maxwell was “capable of understanding the nature and objectives of
this proceeding and of assisting his counsel” after the competency hearing had




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been conducted. Thus, counsel reasonably could have decided that any further
development of this claim was unnecessary.
       {¶ 193} Second, Maxwell argues that trial counsel were unprepared
because they called only family members to testify that he was nonviolent, a good
father, and a hard worker. Maxwell also questions trial counsel’s effectiveness in
calling these witnesses because their testimony opened the door to cross-
examination about Maxwell’s criminal record.
       {¶ 194} Maxwell’s initial claim is incorrect because Dr. McPherson
provided expert testimony about Maxwell’s background, his drug and alcohol
problems, and his mental status. Testimony from family members and friends did
reveal Maxwell’s criminal past.       But there were advantages as well as
disadvantages in calling these witnesses. These witnesses helped to humanize
him in front of the jury and showed that he had many positive characteristics as a
good father and a hard worker.
       {¶ 195} Moreover, trial counsel knew that Dr. McPherson was going to
discuss Maxwell’s criminal record during her testimony. Dr. McPherson testified
that Maxwell’s records from the Allen Correctional Institute showed that he was
compliant with authority and had the skills to adjust to prison life. We hold that
counsel’s decision to call family members and friends was a reasonable trial
strategy and did not violate Strickland. See State v. Powell, 132 Ohio St.3d 233,
2012-Ohio-2577, 971 N.E.2d 865, ¶ 218.
       {¶ 196} Third, Maxwell argues that trial counsel failed to develop
evidence about his alcohol dependency. Dr. McPherson diagnosed Maxwell with
alcohol abuse, probable dependency, currently in remission in a controlled setting.
She testified that Maxwell has “a history that included blackouts, that included
high use and tolerance” of alcohol that met “the criteria for an alcoholism or
alcohol dependence diagnosis.”




                                        58
                                January Term, 2014




        {¶ 197} Maxwell argues that trial counsel were deficient by failing to ask
any of his family members about his drinking problems. Maxwell asserts that this
omission undermined Dr. McPherson’s diagnosis, since she acknowledged during
cross-examination that her diagnosis of alcohol dependency was based on
Maxwell’s self-reporting. Maxwell also asserts that the lack of family testimony
allowed the prosecutor to argue during closing argument that his drinking was not
that serious, since “the people that see him every single day” said nothing about
his alcoholism. But Maxwell’s claims about family testimony are speculative
because it is unknown what they would have said about his drinking problems.
Thus, we reject this claim.
        {¶ 198} Finally, Maxwell argues that the lack of a mitigation investigation
was apparent because trial counsel indicated during the competency hearing that
they had not seen his high school records. Trial counsel mentioned that they had
not seen these records during the competency proceedings on February 6, 2007.
Yet trial counsel had ample time to review these records prior to mitigation
because the penalty-phase proceedings did not begin until February 27, 2007. We
also reject this claim.
                  c. Failure to develop a coherent mitigation theme
        {¶ 199} Maxwell argues that trial counsel were ineffective by failing to
develop a coherent mitigation theme. Trial counsel’s strategy was to convince the
jury that Maxwell should receive a life sentence by emphasizing Maxwell’s
positive traits and demonstrating that he had low intelligence, suffered from
alcohol dependency, had no significant history of violence, and would be a good
prisoner. Trial counsel also raised residual doubt as a reason for a life sentence.
        {¶ 200} In support of this strategy, trial counsel presented the testimony of
Maxwell’s family members and coworkers that Maxwell was kind-hearted, a
good worker, and a family man. Dr. McPherson reviewed Maxwell’s educational
records and discussed test results that showed his low intelligence. She also



                                         59
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reviewed his prison records and explained how they showed that Maxwell would
be a good prisoner if given a life sentence. Dr. McPherson also explained that
Maxwell had suffered from alcohol dependency. The defense theory, although
unsuccessful, was coherent and fit into the testimony. Counsel made a strategic
decision in presenting the defense mitigation theory and were not ineffective. See
State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 351-352.
                                  d. Arguing residual doubt
         {¶ 201} Maxwell argues that trial counsel were deficient by improperly
raising and arguing residual doubt as the only mitigating factor during the
penalty-phase closing arguments. He cites State v. McGuire, 80 Ohio St.3d 390,
686 N.E.2d 1112 (1997). In McGuire, this court held that “[r]esidual doubt is not
an acceptable mitigating factor under R.C. 2929.04(B), since it is irrelevant to the
issue of whether the defendant should be sentenced to death.”2 Id. at syllabus.
         {¶ 202} Trial counsel raised residual doubt as a reason not to impose the
death penalty during closing arguments but also set forth other reasons for a life
sentence. Trial counsel emphasized family testimony demonstrating Maxwell’s
positive traits, his lack of any significant history of violence, and his apology to
Nichole’s family. They also argued that the jury should consider that Maxwell
suffered from alcoholism, headaches, and neurological problems.                       Thus, trial
counsel did not rely exclusively on residual doubt in arguing that Maxwell should
not be sentenced to death.
         {¶ 203} Maxwell also does not explain how raising residual doubt during
closing arguments was prejudicial. Thus, he has failed to demonstrate that trial
counsel was ineffective by arguing residual doubt. We reject this argument.




2. Residual doubt of guilt has been defined as “a lingering uncertainty about facts, a state of mind
that exists somewhere between ‘beyond a reasonable doubt’ and ‘absolute certainty.’ ” Franklin v.
Lynaugh, 487 U.S. 164, 188, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) (O’Connor, J., concurring).




                                                60
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               e. Misidentification of Dr. McPherson’s qualifications
        {¶ 204} Maxwell argues that trial counsel improperly elicited from Dr.
McPherson that she was a certified mitigation specialist. Maxwell asserts that
certification as a mitigation specialist is a designation that does not exist.
        {¶ 205} Dr. McPherson testified that she had been certified as a mitigation
specialist. Trial counsel then tendered her as an expert witness in the area of
mitigation. Without objection, the trial court allowed Dr. McPherson to testify as
an expert.
        {¶ 206} Maxwell misstates the court’s ruling and erroneously claims that
the trial court sustained the state’s objection to Dr. McPherson’s designation as a
certified mitigation specialist and that this ruling undermined the credibility of the
witness. In any event, there is little chance that any improper testimony about Dr.
McPherson’s certification as a mitigation specialist was prejudicial. Thus, we
reject this ineffectiveness claim.
             f. Failure to object to cross-examination of Dr. McPherson
        {¶ 207} Maxwell argues that trial counsel failed to object to cross-
examination of Dr. McPherson that “limited the jury’s consideration of the
evidence it could treat as mitigation.”
        {¶ 208} In State v. DePew, 38 Ohio St.3d 275, 288, 528 N.E.2d 542
(1988), the court stated that “it is the defendant who has the right to present and
argue the mitigating factors. If he does not do so, no comment on any factors not
raised by him is permissible.”
        {¶ 209} Dr. McPherson provided testimony about Maxwell’s mental
status, possible neurological problems, ability to adapt to prison life, and his
history of alcohol abuse that the jury could consider as mitigating evidence. The
prosecutor’s cross-examination of Dr. McPherson addressed these issues. The
prosecutor’s questioning did not elicit objectionable information that limited the
jury’s consideration of the mitigating evidence.



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       {¶ 210} Moreover, the trial court instructed the jury, “You must consider
all the mitigating factors presented to you. Mitigating factors include any factors
that weigh in favor of a sentence other than death. This means that you are not
limited to specific mitigating factors, you should consider any mitigating factors
that weigh in favor of a sentence other than death.” These instructions ensured
that the jury understood its role in considering mitigation. Thus, trial counsel
were not deficient by failing to object to such questioning.
       {¶ 211} Maxwell also argues that trial counsel were deficient by failing to
object to the prosecutor’s reference to the R.C. 2929.04(B)(7) mitigating factor as
the “catchall” factor. R.C. 2929.04(B)(7) permits a capital defendant to present
“[a]ny other factors that are relevant to the issue of whether the offender should
be sentenced to death.” Maxwell claims that trial counsel should have objected to
the word “catchall” because that designation implied that mitigation presented
under (B)(7) did not merit the same consideration as evidence relating to the other
statutory mitigating factors. But nothing shows that the jury gave less weight to
(B)(7) evidence. Thus, we also reject this speculative claim.
                       g. Failure to object and preserve error
       {¶ 212} Finally, Maxwell complains that trial counsel failed to object to
the trial court’s use of the term “recommendation” during voir dire, failed to
properly request a neurologist to assist in mitigation, and failed to object to the
prosecutor’s penalty-phase argument. Maxwell raised counsel’s failure to object
to the trial court’s use of the term “recommendation” in proposition IV. But this
claim lacks merit because counsel did object. Maxwell’s other two claims recast
unsuccessful substantive propositions of law into ineffectiveness claims. But as
discussed below in proposition XI, Maxwell was not prejudiced by counsel’s
failure to object to the prosecutor’s penalty-phase argument. And as discussed
next in proposition XII, trial counsel were not ineffective by failing to request a
neurologist for mitigation purposes.




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       {¶ 213} Based on the foregoing, we overrule proposition I.
2. Failure to appoint a neurologist (Proposition of law XII)
       {¶ 214} Maxwell argues that the trial court erred by failing to appoint a
neurologist to develop mitigation. He also repeats claims that trial counsel were
ineffective by failing to request a neurologist for mitigating purposes.
                                      a. Facts
       {¶ 215} On January 19, 2007, trial counsel filed a motion requesting funds
to allow Dr. John Fabian to perform a neurological evaluation of Maxwell’s
mental condition.    Trial counsel stated that in assessing Maxwell’s medical
history during the competency evaluation, “the Court Psychiatric Clinic and
Northcoast indicated that Defendant was rendered unconscious for some time
[due] to a motorcycle accident.” Thus, trial counsel requested the court “to allow
Dr. Fabian to continue to evaluate Defendant for Competency and Sanity and to
allow him to conduct neurological testing and prepare reports outlining his
findings and opinions.”
       {¶ 216} During the competency hearing on February 6, 2007, trial counsel
clarified that they were not requesting Dr. Fabian to conduct the neurological
evaluation of Maxwell, since Dr. Fabian was not a neurologist. Dr. Fabian was
serving as a liaison with neurologists who perform this type of testing. Trial
counsel then stated that they were requesting a neurological evaluation because
Maxwell had told them that his life and the way he looks at things were different
since that motorcycle accident. Thus, counsel requested a neurological evaluation
to provide “objective medical findings in terms of an MRI or a CAT scan as per
Dr. Fabian’s recommendation.”
       {¶ 217} During the competency hearing, Dr. Cook testified that she had
talked to Maxwell about the motorcycle accident, and he told her that he had
received no treatment and had not been hospitalized as a result of the accident.




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          {¶ 218} Dr. Aronoff testified that he had reviewed Maxwell’s medical
records that showed he was treated at Meridia-Huron Hospital on March 29, 1999,
after the motorcycle accident. Dr. Aronoff quoted findings from the medical
records that reported that Maxwell was “sitting on motorcycle which was struck
from behind by a car at low speed. He was thrown off the bike on to the right
side. No loss of consciousness. Was wearing a helmet. Right shoulder, right hip,
right elbow, right ankle are painful. No headache or neck pain.” Dr. Aronoff also
stated that x-rays were taken of Maxwell’s shoulder, elbow, ankle, and hip, and
they were all unremarkable.3 However, Dr. Aronoff testified that Maxwell told
him that he was rendered unconscious in the motorcycle accident.
          {¶ 219} The trial court denied the defense request for a neurological
evaluation. Trial counsel did not renew the request for a neurologist during the
remainder of the trial.
                                       b. Analysis
          {¶ 220} As a matter of due process, an indigent defendant in a capital case
is entitled to the basic tools with which to conduct an adequate defense. Ake v.
Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In Ake, the
United States Supreme Court concluded that the state must provide a psychiatric
expert for the defense when the defendant has made a preliminary showing that
his sanity will be a significant factor at trial. Id. at 74. Although Ake dealt only
with a defendant’s entitlement to psychiatric assistance, this court has recognized
that due process may require the state to provide other types of expert assistance
to a criminal defendant. State v. Mason, 82 Ohio St.3d 144, 149, 694 N.E.2d 932
(1998).     Moreover, R.C. 2929.024 requires the trial court to provide expert
assistance when “reasonably necessary for the proper representation of a
defendant charged with aggravated murder.”

3. Maxwell also supports his claim with Dr. McPherson’s testimony. However, Dr. McPherson’s
testimony was not presented for consideration on this motion.




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       {¶ 221} In Mason, the court held that the state must provide an indigent
criminal defendant with funds to obtain expert assistance when the defendant has
made a particularized showing that (1) there exists a reasonable probability that
the requested expert would aid the defense and (2) denial of that expert assistance
would result in an unfair trial. The trial court’s ruling on such requests is a matter
left to the exercise of the court’s “sound discretion.” Id. at syllabus.
       {¶ 222} Trial counsel did not request the appointment of a neurologist for
purposes of mitigation. Rather, as the defense concedes, trial counsel requested a
neurologist in the context of his competency evaluation. Thus, this claim lacks
merit because the trial court never entertained a defense motion for a neurologist
for mitigation purposes.
       {¶ 223} Even assuming that the trial court should have construed the
defense motion for a neurologist as carrying over for mitigation purposes, we hold
that no error occurred. A defendant must show not just a mere possibility but a
reasonable probability that an expert would aid in his defense. State v. Broom, 40
Ohio St.3d 277, 283, 533 N.E.2d 682 (1988).
       {¶ 224} The defense request for a neurologist was based upon Dr.
Fabian’s recommendation and reports obtained during his competency evaluation
stating that Maxwell was rendered unconscious following an earlier motorcycle
accident. But Dr. Fabian did not testify, and any written reports from him were
not submitted to the court.
       {¶ 225} Maxwell’s medical records showed that he suffered no loss of
consciousness and reported no headache or neck pain as a result of that
motorcycle accident. Thus, Maxwell’s request merely raised the possibility that
he had suffered a brain injury as a result of a motorcycle accident. It was not
supported by anything in his medical records. Moreover, the medical records
contradicted Maxwell’s story about what happened after the accident. Maxwell




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told Dr. Aronoff that he was rendered unconscious, and he told Dr. Cook that he
received no medical treatment.
       {¶ 226} Maxwell cites State v. Eppinger, 91 Ohio St.3d 158, 743 N.E.2d
881 (2001), in arguing that the defense was entitled to a neurologist. Eppinger
addressed a defendant’s right to an expert psychologist at a sexual-offender-
classification hearing. Eppinger held that a defendant is entitled to such an expert
if the trial court determines that the expert’s services are reasonably necessary to
aid in determining whether the offender is likely to engage in the future in one or
more sexually oriented offenses. Id. at syllabus. Eppinger involved a totally
different type of fact situation from the present case and does not support
Maxwell’s argument.
       {¶ 227} Maxwell also cites Frazier v. Huffman, 343 F.3d 780 (6th
Cir.2003), in arguing that the trial court erred in not appointing a neurologist. In
Huffman, a capital case, the court held that defense counsel were ineffective by
failing to investigate and present evidence of the defendant’s brain impairment
during the trial. Id. at 797. The court found that counsel were ineffective because
after reviewing the defendant’s medical records, they were aware that the
defendant had suffered a brain injury from falling from a ladder, but they failed to
investigate and present evidence about it. Id. at 794-795. Unlike the records in
Huffman, Maxwell’s medical records contain nothing that documents that he had
suffered any brain injuries. Thus, Huffman is inapposite.
       {¶ 228} Based on the foregoing, we hold that the trial court did not abuse
its discretion in denying the defense request for a neurologist.          Compare
Hughbanks, 99 Ohio St.3d 365, 2003-Ohio-4121, 792 N.E.2d 1081, at ¶ 44-46 (no
particularized need demonstrated for neuropharmacologist); State v. Campbell, 90
Ohio St.3d 320, 327-328, 738 N.E.2d 1178 (2000) (“mere possibility that the
[specialized chest X-ray] could have had some [mitigation] value to the defense
was not enough”).




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                                January Term, 2014




                         c. Ineffective assistance of counsel
       {¶ 229} In proposition of law I, Maxwell asserted that trial counsel were
ineffective by failing to request a neurologist to assist in the development of
mitigation. Yet Maxwell provides no argument and cites no legal authority in
support of this claim.
       {¶ 230} Our review of this ineffectiveness claim starts with a review of
Dr. McPherson’s testimony to determine whether she provided counsel with
additional information about Maxwell’s head injuries from the motorcycle
accident that required counsel to conduct a further investigation.
       {¶ 231} Dr. McPherson administered the Bender-Gestalt test during her
evaluation of Maxwell. She described the Bender-Gestalt as a “copying task” that
serves as a low-level screening test. She testified that there was “some indication
[that] his hand might not have been steady, but there were distortions that didn’t
make a lot of sense, so the question remained as to whether or not there was some
kind of organically based anomaly, something that affects how his brain processes
information.”
       {¶ 232} Dr. McPherson testified about past injuries that Maxwell reported
suffering. Maxwell stated that he had been briefly unconscious after falling off a
horse but that he did not receive any medical treatment for that incident. Dr.
McPherson also discussed the motorcycle accident and said, “[H]e may have been
briefly unconscious. He was certainly conscious when he was seen at the hospital
for that one.” Dr. McPherson also stated that there was nothing in Maxwell’s
medical records showing that he had suffered a traumatic head injury in the
motorcycle accident.
       {¶ 233} In discussing her final diagnosis, Dr. McPherson stated that
Maxwell suffered from an adjustment disorder with depression and probable
alcohol dependency.      Dr. McPherson testified that she could not determine
whether Maxwell had had a traumatic brain injury and advised that “whoever is



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working with him next should continue to be aware that this may be there and try
to come up with information to either rule it in or out.” She also testified that
Maxwell has “some type of cognitive difficulty. He may have some underlying
organic problems and these may have rendered him more likely to react with
irritability since that’s one of the known things that can occur with certain kinds
of organicity making him more prone to act out in a stressful situation such as a
relationship that was flawed.”
       {¶ 234} Dr. McPherson’s testimony about the need for further testing to
rule out possible brain impairment appears to be based upon Maxwell’s
performance on the Bender-Gestalt test. She testified that the Bender-Gestalt test
indicated some distortions, but she did not indicate that these results were
conclusive as to brain damage. Thus, the Bender-Gestalt results raised only the
possibility of brain impairment. See State v. Allen, 73 Ohio St.3d 626, 642, 653
N.E.2d 675 (1995) (trial court did not abuse discretion in refusing to appoint
neurologist based on Bender-Gestalt test that showed little likelihood of brain
damage).
       {¶ 235} Maxwell fails to establish that counsel were deficient by failing to
request a neurologist for mitigation purposes based on Dr. McPherson’s
testimony. First, the record does not show that trial counsel failed to investigate
the need to request a neurologist after reviewing Dr. McPherson’s findings. We
cannot infer a defense failure to investigate from a silent record; the burden of
demonstrating ineffective assistance is on Maxwell. See Were, 118 Ohio St.3d
448, 2008-Ohio-2762, 890 N.E.2d 263, at ¶ 244.
       {¶ 236} Second, the trial court could have properly denied a motion for a
neurologist because Maxwell would have been unable to make a particularized
showing of a reasonable probability that the requested expert would aid in his
defense. Mason, 82 Ohio St.3d 144, 694 N.E.2d 932, syllabus. Dr. McPherson
reiterated that Maxwell’s medical records did not show that he had suffered a




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traumatic head injury during the motorcycle accident. Indeed, Dr. McPherson’s
information about a possible head injury resulted from Maxwell’s self-reporting.
       {¶ 237} Finally, Maxwell has failed to show that the absence of a
neurological evaluation resulted in an unfair trial. Id. Dr. McPherson testified
that there might be “some underlying organic problems and these may have
rendered him more likely to react with irritability * * * in a stressful situation.”
(Emphasis added.) The evidence showed that Maxwell murdered Nichole in
retaliation for her testimony. Accordingly, this was a planned murder rather than
a sudden encounter involving a stressful situation.         Thus, we reject this
ineffectiveness claim.
       {¶ 238} Based on the foregoing, proposition XII is overruled.
3. Reintroduction of guilt-phase evidence (Proposition of law XVI)
       {¶ 239} Maxwell argues that the trial court erred by admitting guilt-phase
evidence during the penalty phase that was irrelevant.       The trial court, over
defense objection, admitted photographs showing the victim displaying injuries
she suffered during the felonious assault, a photograph of the victim without
injuries, and an autopsy photograph of the victim’s face.
       {¶ 240} R.C. 2929.03(D)(1) provides that at the penalty stage of a capital
proceeding, the court and jury shall consider “any evidence raised at trial that is
relevant to the aggravating circumstances the offender was found guilty of
committing * * * [and] hear testimony and other evidence that is relevant to the
nature and circumstances of the aggravating circumstances the offender was
found guilty of committing.” DePew, 38 Ohio St.3d at 282-283, 528 N.E.2d 542.
The trial court did not abuse its discretion in readmitting photographs displaying
injuries that Nichole suffered during the felonious assault or the autopsy
photograph, because these items bore some relevance to the nature and
circumstances surrounding the R.C. 2929.04(A)(8) specification. The photograph




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of Nichole without injuries was of questionable relevance, but no prejudice
resulted from its introduction.
       {¶ 241} Based on the foregoing, proposition XVI is overruled.
4. Prosecutorial misconduct during closing arguments (Proposition of law XI)
       {¶ 242} Maxwell argues that the prosecutor committed various instances
of prosecutorial misconduct during his closing arguments.         However, except
where noted, trial counsel failed to object to the prosecutor’s argument and thus
waived all but plain error. State v. Williams, 51 Ohio St.2d 112, 364 N.E.2d 1364
(1977), paragraph one of the syllabus.
       {¶ 243} Whether a prosecutor’s remarks constitute misconduct depends
upon (1) whether the remarks were improper and, if so, (2) whether the remarks
prejudicially affected an accused’s substantial rights. State v. Smith, 14 Ohio
St.3d 13, 14, 470 N.E.2d 883 (1984). The touchstone of the analysis “is the
fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455
U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).
       {¶ 244} First, Maxwell argues that, over defense objection, the prosecutor
commented, “I know it’s devastating for the families, especially Nichole’s family
and what they’ve gone through.” The mention of “the personal situation of the
victim’s family, without more, does not constitute misconduct.”             State v.
Goodwin, 84 Ohio St.3d 331, 339, 703 N.E.2d 1251 (1999). The prosecutor’s
comments about the victim’s family were brief and did not dwell on the pain they
suffered. Thus, we hold that no misconduct occurred. See State v. Brinkley, 105
Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 140.
       {¶ 245} Second, Maxwell argues that the prosecutor improperly argued
that his ability to adapt to prison life was not a mitigating factor.        During
arguments, the prosecutor stated:




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       You must engage in that weighing process and * * * with that
       aggravating circumstance, the retaliation think what have you
       heard in this case that mitigates against that * * *. What mitigating
       factors have you heard? He’s capable of conforming to prison
       life? That’s a mitigating factor? Is that—really? You assign the
       weight that you think each of these deserve.


       {¶ 246} “Prosecutors can urge the merits of their cause and legitimately
argue that defense mitigation evidence is worthy of little or no weight.” State v.
Wilson, 74 Ohio St.3d 381, 399, 659 N.E.2d 292 (1996). The prosecutor was not
arguing that Maxwell’s ability to adapt to prison was not a mitigating factor.
Rather, the prosecutor was responding to Dr. McPherson’s testimony that
Maxwell could conform his conduct to the highly structured setting of a prison.
He was arguing that such evidence was not entitled to significant weight. Nothing
in this argument resulted in plain error.
       {¶ 247} Finally, Maxwell contends that the prosecutor misbehaved by
arguing the absence of mitigating factors the defense never raised.            The
prosecutor argued:


       You’ve had good people come up here and tell you about Mr.
       Maxwell, try to mitigate against this aggravating circumstance.
       We didn’t hear bad childhood, abusive situations, * * * wanting for
       anything in life. We just didn’t hear it. We heard he had support.
       We heard he was raised correctly. He went to church. You know
       and the Judge—the doctor said no mental defect or disease. Did
       you hear any remorse? I mean I don’t—those are the things that
       you have to consider, folks.




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        {¶ 248} “A prosecutor can respond to issues raised by an accused.” State
v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 101. The
prosecutor was responding to extensive testimony presented by Maxwell’s friends
and family members, stating that Maxwell was kind-hearted, a good man, and a
family man. Ernestine Brewer, Maxwell’s mother, testified that he was “a great
kid” and was raised in the church. The prosecutor’s comments about remorse
responded to Maxwell’s unsworn statement: “I would like to say that I’m sorry to
the victim’s family and my family for going through this. I wouldn’t want
nobody’s family to go through this.” The prosecutor’s comments about defense
testimony and Maxwell’s unsworn statement represented fair comment and did
not constitute plain error.
        {¶ 249} Based on the foregoing, proposition XI is rejected.
                                  C. Remaining issues
1. Appropriateness of death sentence (Proposition of law XVIII)
        {¶ 250} Maxwell argues that the death penalty is not appropriate because
of the compelling mitigating evidence presented in his behalf. We will address
these arguments during our independent sentence evaluation.
2. Cumulative error (Proposition of law XVII)
        {¶ 251} Maxwell claims that the cumulative effect of errors committed
during trial deprived him of a fair trial and necessitates reversal of his conviction
and death sentence.
        {¶ 252} We have recognized the doctrine of cumulative error. State v.
DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the
syllabus. Under this doctrine, a conviction will be reversed when the cumulative
effect of errors in a trial deprives a defendant of a fair trial even though each of
the numerous instances of trial-court error does not individually constitute cause
for reversal. Id. at 196-197.




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                               January Term, 2014




       {¶ 253} The doctrine of cumulative error is not applicable in the present
case. Maxwell received a fair trial, and there are not numerous instances of trial-
court error. Moreover, Maxwell was not prejudiced by any error at the trial or
penalty phase of the proceedings.
3. Settled issues (Proposition of law XIX)
       {¶ 254} Maxwell challenges the constitutionality of Ohio’s death-penalty
statutes under both the United States Constitution and the Ohio Constitution. We
reject these claims on the basis of State v. Carter, 89 Ohio St.3d 593, 607, 734
N.E.2d 345 (2000); State v. Steffen, 31 Ohio St.3d 111, 509 N.E.2d 383 (1987),
paragraph one of the syllabus; State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d
264 (1984), paragraph one of the syllabus.
       {¶ 255} Maxwell     also     challenges   the constitutionality of Ohio’s
reasonable-doubt standard. However, this court has affirmed the constitutionality
of R.C. 2901.05(D). Jones, 91 Ohio St.3d at 347, 744 N.E.2d 1163; see also State
v. Goff, 82 Ohio St.3d 123, 132, 694 N.E.2d 916 (1998).
                     IV. Independent Sentence Evaluation
       {¶ 256} Having considered Maxwell’s propositions of law, this court must
independently review Maxwell’s death sentence for appropriateness and
proportionality   and   independently     determine    whether   the   aggravating
circumstance of which Maxwell was convicted outweighs the mitigating factors
pursuant to R.C. 2929.05(A).          The R.C. 2929.04(A)(3) murder-to-escape-
accountability specification was merged with the R.C. 2929.04(A)(8) retaliation
specification before sentencing.
                          A. Aggravating circumstance
       {¶ 257} The evidence at trial established beyond a reasonable doubt that
Maxwell murdered Nichole McCorkle in retaliation for her testimony in a
criminal proceeding, R.C. 2929.04(A)(8). Accordingly, we consider whether the
aggravating circumstance of which Maxwell was convicted, R.C. 2929.04(A)(8),



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murder in retaliation for testimony in another criminal proceeding, outweighs the
evidence presented in mitigation.
                         B. Mitigating evidence presented
          {¶ 258} Maxwell called ten mitigating witnesses and made an unsworn
statement. William Steward, Maxwell’s oldest brother, testified that Maxwell
comes from a good family. Maxwell has four brothers and three sisters. Steward
stated that Maxwell has a good heart and will give the shirt off his back to help
people.     Maxwell graduated from high school and later obtained vocational
training and learned how to operate heavy machinery.           Steward also stated:
“[Maxwell] is not a monster or anything. * * * [T]he picture that’s being painted
here is I think a little bit different than what really lurks here.” Finally, Steward
stated, “I personally would like to say to the victims that I apologize and I’m sorry
about * * * what the family is going through and this whole incident.”
          {¶ 259} Herbert Nelson, grew up with Maxwell, a first cousin, and
Maxwell’s family would visit Nelson, who lived in Arkansas. Nelson later moved
to the Cleveland area, and he and Maxwell worked jobs together. Nelson testified
that Maxwell was a “real good worker” and a “real good guy.” Nelson stated that
he missed Maxwell and asked the court to have mercy on him.
          {¶ 260} Veronica Nelson, Herbert’s wife, had known Maxwell since she
became engaged to marry her husband five years earlier. Veronica testified that
she has always felt comfortable around Maxwell. She stated that he was “always
well-dressed, well-behaved, not drunken, not cursing, [and] mannerable.”
Maxwell was also “loving towards his family, his mother, his sisters, at all times.”
          {¶ 261} Roscoe Horne, a neighbor, testified that he had known Maxwell
since 2002 or 2003 and that Maxwell had performed construction work for
Horne’s construction company.        Horne stated that Maxwell operated heavy
equipment and was an excellent worker and very trustworthy.              Horne also
described him as a good neighbor who was friendly and went out of his way to




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help other people. Horne testified that Maxwell often took food to older people
during the holidays. Horne concluded by saying, “[A] lot of people love him and
our hearts go out to him.”
       {¶ 262} Bernard McNear, Maxwell’s brother-in-law, had known Maxwell
for five or six years. McNear testified that Maxwell offered him the opportunity
to work on construction jobs and helped teach him the work. McNear stated that
Maxwell was an outgoing person and was always willing to talk with McNear and
give him positive advice.
       {¶ 263} Theresa McNear, Maxwell’s younger sister, testified that Maxwell
was a nice guy. Theresa spent a lot of time tagging along with Maxwell when
they were growing up. They went fishing together, and Maxwell tried to teach
her how to ride a horse. Maxwell provided Theresa with help in dealing with
stressful issues and helped Theresa’s daughter with her homework. Theresa also
testified that Maxwell loved his daughter, C.M., and had a good interaction with
her. Theresa concluded that Maxwell had a huge heart, loved hard, and would
help anybody.
       {¶ 264} Sharon Graves, Maxwell’s older sister, testified that he was a
playful child and was always there if his brothers and sisters needed him. Graves
stated that Maxwell had a loving relationship with C.M. Graves also stated that
Maxwell had been supportive of her children and went to her daughter’s high
school graduation. Graves emphasized that Maxwell was a “good person.”
       {¶ 265} Andy Maxwell, the defendant’s younger brother, had always
wanted to follow his big brother. When Andy was eight years old, Maxwell saved
Andy from drowning.         Andy testified that Maxwell had “been like that” all
through life. He stated that Maxwell had a great relationship with C.M. and took
her horseback riding and did other activities with her. Maxwell had also been
very helpful with other people.      For example, Maxwell distributed a list of
information about felons needing jobs to possible employers.



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       {¶ 266} Ernestine Brewer, Maxwell’s mother, testified that Maxwell was
born in Arkansas but spent most of his life in Ohio. Brewer testified that Maxwell
was raised in the church and was a “Bible-taught kid.” Brewer said that Maxwell
spent time in prison but was always by her side after his release. Brewer said that
Maxwell was a “good kid.” In conclusion, she told the jury, “He might have fell
by the wayside and I’m asking them to please spare his life * * *. People do
things out of anger, you know, so that’s it.”
       {¶ 267} Dr. Sandra McPherson evaluated and conducted psychological
testing of Maxwell. Dr. McPherson evaluated Maxwell’s educational records
from the Cleveland public schools, his records from Allen Correctional Institute,
where he spent five years, and his competency assessments.
       {¶ 268} Dr. McPherson testified that Maxwell did not do particularly well
in school. His grades “tended to be * * * D’s and F’s; there were some C’s.” Dr.
McPherson stated that Maxwell’s criminal records show charges and convictions
for drug trafficking and that there was also “a domestic violence associated with
the victim of this crime.” Maxwell’s prison records show that he was “compliant
with authority.” Dr. McPherson stated that “there was a report rendered to the
parole board saying that his conduct had been basically exemplary and that he
would be appropriate for release.”
       {¶ 269} Maxwell also received a series of assessments during his
competency evaluation that found him to be competent. Dr. McPherson testified
that there were symptoms of possible mental illness, but there were also questions
as to whether he was exaggerating them. Dr. McPherson also testified that there
was a confirmed diagnosis of alcohol dependence, and other diagnoses included
“a differential between paranoid personality disorder and paranoid psychosis
which was unresolved as well as borderline intellectual functioning.” A history of
head trauma was also noted in these evaluations.




                                         76
                                January Term, 2014




        {¶ 270} Dr. McPherson testified that Maxwell’s reading ability is at the
eighth-grade level. Results from the Wechsler Adult Intelligence Scale showed
that Maxwell has a full-scale IQ of 84, a performance IQ of 95, and a verbal IQ of
77.     She testified that results from the Bender-Gestalt test showed some
distortions that might reflect “some kind of organically based anomaly, something
that affects how his brain processes information.”        She stated that Maxwell
reported two head injuries. One injury occurred when he fell off a horse, and the
other resulted from a motorcycle accident. Maxwell reported that he had periodic
headaches that have continued through the years, and these interfere with his
functioning when they occur.
        {¶ 271} Results of the Thematic Apperception Test were relatively
limited. Dr. McPherson testified that there were indications in Maxwell’s stories
of depression and a desire to avoid what was unpleasant.            Results on the
Minnesota Multiphasic Personality Inventory-2 showed that his validity scales
were within range, and the clinical scales were within normal limits.            Dr.
McPherson testified that there was “no sign of any psychosis or condition that
would have rendered him incapable of understanding what’s going on in the
world around him.”
        {¶ 272} Dr. McPherson diagnosed Maxwell with an adjustment disorder
with depression and alcohol abuse, probable dependency, currently in remission
in a controlled setting. Dr. McPherson’s diagnosis included “Rule out traumatic
brain injury with residual systems.” Dr. McPherson testified that this means “I
can’t call it but whoever is working with him next should continue to be aware
that this may be there and try to come up with information to either rule it in or
out.”
        {¶ 273} Dr. McPherson discussed mitigating factors that she found from
her tests and interviews. She stated that Maxwell is capable of conforming his
conduct in a highly structured setting and has the skills to adjust to prison and not



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be a problem. Dr. McPherson stated that Maxwell has some cognitive difficulty.
He may have some underlying organic problems, and these may have rendered
him more likely to react with irritability in a stressful situation such as a flawed
relationship. She also testified that Maxwell has no record of violence other than
the current situation.    In addition, Maxwell has indicated his desire to be a
positive person, and he has done things for his family.
       {¶ 274} Finally, Dr. McPherson stated that Maxwell maintains his
innocence of the crime and continues to do so.
       {¶ 275} Maxwell made an unsworn statement during mitigation:


       First of all, I would like to say that I’m sorry to the victim’s family
       and my family for going through this. I wouldn’t want nobody’s
       family to go through this.
               And I have one child and I did this to see her this one last
       time. And my family haven’t saw her, I haven’t saw her and my
       father is always in Arkansas and he comes to see her every two
       years probably and that’s the only grandchild he has and I want her
       to be a part of his life.


       {¶ 276} The next segment of Maxwell’s unsworn statement was addressed
to his daughter, C.M.:


       I love her and I miss her. And I miss her mother too. And I want
       her to be a part of my family’s life. The little time that I have with
       her.


       {¶ 277} The final segment of Maxwell’s unsworn statement was addressed
to Nichole’s family:




                                         78
                                 January Term, 2014




        I want to say that I’m sorry that they had to go through this. And I
        would ask them if they would let [C.M.] be a part of my family,
        my family’s life. She love them and they love her.


        {¶ 278} Before final sentencing, Maxwell made a statement in allocution
for the trial court’s consideration:


        I want to say I’m sorry for the tragedy and what I meant to say was
        I want to be able to see my daughter grow up and my family—she
        be a part of my family because they’re going to keep her away
        from my family and I want to be able to live and see her grow up.
        * * * I would like to be able to live and see her grow into a person.
        Thank you.


        {¶ 279} The statutory mitigating factors under R.C. 2929.04(B) include
(B)(1) (inducement of murder by victim), (B)(2) (duress, coercion, or strong
provocation), (B)(3) (mental disease or defect), (B)(4) (youth of the offender),
(B)(5) (lack of a significant criminal record), (B)(6) (not being the principal
offender), and (B)(7) (any other relevant factors). The first six factors do not
apply, but several points in mitigation arise under the (B)(7) factor. We give
appropriate weight to Maxwell’s low-average intelligence (IQ of 84).            His
diagnosed alcohol abuse is also entitled to some weight. See Craig, 110 Ohio
St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, at ¶ 146.
        {¶ 280} Some weight should be given to the love and support that
Maxwell shares with his family. See State v. Myers, 97 Ohio St.3d 335, 2002-
Ohio-6658, 780 N.E.2d 186, ¶ 178. We also give some weight to testimony that




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Maxwell is a good and dependable worker. See State v. Trimble, 122 Ohio St.3d
297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 327.
       {¶ 281} Maxwell argues that this court should consider testimony that he
will be able to adjust well to prison life. See State v. Madrigal, 87 Ohio St.3d
378, 397, 721 N.E.2d 52 (2000). Dr. McPherson testified that Maxwell’s prison
records showed that his conduct had been exemplary in prison. We give some
weight in mitigation to Maxwell’s ability to adjust to prison life.
       {¶ 282} Maxwell also argues that his remorse is entitled to weight as a
mitigating factor. In his unsworn statement, Maxwell apologized to his family
and the victim’s family “for going through this.” During allocution, Maxwell told
the trial court, “I’m sorry for the tragedy.” Yet Dr. McPherson testified that
Maxwell maintains his innocence of the charges. Thus, Maxwell continues to
deny responsibility for Nichole’s murder.          Maxwell’s denials negate the
mitigating weight that we might otherwise give to his expressions of sorrow. See
Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, at ¶ 205.
       {¶ 283} Finally, Maxwell raises residual doubt as a mitigating factor.
Maxwell argues that his reason for shooting Nichole was jealousy rather than
retaliation for her testimony against him. He argues that this is at best a mixed-
motive case and makes the aggravating circumstance of retaliation less serious.
Yet the evidence established that Maxwell murdered Nichole because she testified
against him before the grand jury. Moreover, residual doubt is not a reason to
overturn a death sentence. See McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112,
syllabus. Thus, we reject residual doubt as a mitigating factor in this case. The
evidence does not suggest any other (B)(7) mitigating factors.
       {¶ 284} There is nothing mitigating in the nature and circumstances of the
offenses. Moreover, Maxwell’s history and background provide little mitigating
value. He was raised by a loving mother and was surrounded by a supportive
family and friends.




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         {¶ 285} We weigh the aggravating circumstance of R.C. 2929.04(A)(8),
the witness-murder specification, against these mitigating factors. Here, Maxwell
murdered Nichole McCorkle in retaliation for testifying against him before the
grand jury. Maxwell’s mitigating evidence is weak in comparison. Maxwell has
also refused to accept responsibility for murdering Nichole. We find that the
aggravating circumstance outweighs the mitigating factors beyond a reasonable
doubt.
         {¶ 286} Finally, the death sentence is both appropriate and proportionate.
See Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, at ¶ 235
(murder in retaliation for testimony); State v. Bethel, 110 Ohio St.3d 416, 2006-
Ohio-4853, 854 N.E.2d 150, ¶ 212 (murder to prevent testimony in an upcoming
murder trial); State v. Turner, 105 Ohio St.3d 331, 2005-Ohio-1938, 826 N.E.2d
266, ¶ 101 (murder in retaliation for filing domestic-violence charges).
                                   V. Conclusion
         {¶ 287} We affirm the judgment of conviction and the sentence of death.
                                                                 Judgment affirmed.
         O’CONNOR, C.J., and O’DONNELL and KENNEDY, JJ., concur.
         FRENCH, J., concurs separately.
         PFEIFER and O’NEILL, JJ., concur in part and dissent in part.
                              ____________________
         FRENCH, J., concurring.
         {¶ 288} I agree with the concurring and dissenting opinion that the
admission of the autopsy report and the admission of Dr. Felo’s testimony
regarding the information contained in the autopsy report violated Maxwell’s
confrontation rights, but that the admission of that evidence constituted harmless
error. I also agree that Dr. Felo’s independent conclusions would not offend the
Confrontation Clause.




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       {¶ 289} Autopsy reports are not per se nontestimonial. Ohio’s statutory
scheme makes clear that an autopsy is intended to serve two distinct purposes:
(1) investigation of homicides and other crimes and (2) investigation of public-
health concerns.     R.C. 313.131(C)(1) (“An autopsy is a compelling public
necessity if it is necessary to the conduct of an investigation by law enforcement
officials of a homicide or suspected homicide, or any other criminal investigation,
or is necessary to establish the cause of the deceased person’s death for the
purpose of protecting against an immediate and substantial threat to the public
health”). To determine which purpose takes precedence in any given case, we
must look to the facts of that particular case.     Here, police responded to a
shooting. The coroner received the body of a victim who had been shot twice in
the head.    Common sense tells us that the coroner was not investigating a
mysterious public-health epidemic. He was investigating a homicide and would
have clearly expected his report to be used in a subsequent murder trial. Thus, in
this case, the report was testimonial.
       {¶ 290} I agree with the majority’s independent review of the imposition
of the death penalty, however, and would affirm on those grounds.
                              ____________________
       PFEIFER, J., concurring in part and dissenting in part.
       {¶ 291} I dissent from the imposition of the death penalty in this case. I
would find under our independent sentence evaluation that the imposition of death
is not appropriate for this defendant.
       {¶ 292} I concur in the majority’s judgment affirming the defendant’s
convictions, but disagree with the statements the majority makes regarding the
admissibility of autopsy reports prepared by nontestifying medical examiners and
regarding the admissibility of the testimony of surrogate medical examiners who
rely upon the autopsy reports of nontestifying medical examiners. Ultimately, I
concur in that part of the majority’s judgment that affirms the conviction because




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I believe that although both the admission of Dr. David Dolinak’s autopsy report
into evidence and Dr. Joseph Felo’s testimony regarding Dr. Dolinak’s autopsy
report violated defendant-appellant Charles Maxwell’s Sixth Amendment right to
confrontation, the trial court’s errors were harmless beyond a reasonable doubt.
                                          I
       {¶ 293} In its landmark Confrontation Clause case, Crawford v.
Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the
United States Supreme Court held that the Confrontation Clause bars “testimonial
statements of a witness who did not appear at trial unless he was unavailable to
testify, and the defendant had a prior opportunity for cross-examination.” But the
court left “for another day any effort to spell out a comprehensive definition of
‘testimonial.’ ” Id. To some extent, we still await that clarifying day, especially in
the area of autopsy reports; several state court decisions regarding the
admissibility of autopsy testimony have been appealed to the United States
Supreme Court, but to this point, the court has not granted certiorari on the issue.
State v. Navarette, 2013-NMSC-003, 294 P.3d 435, cert. denied, ___ U.S. ___,
134 S.Ct. 64, 187 L.Ed.2d 254 (2013); State v. Joseph, 230 Ariz. 296, 283 P.3d 27
(2012), cert. denied, 133 S.Ct. 936, 184 L.Ed.2d 733 (2013); State v. Mitchell,
2010-ME-73, 4 A.3d 478, cert. denied, 133 S. Ct. 55, 183 L.Ed.2d 709 (2012).
The nation, like this court, remains split on the question. But since Crawford, the
court in cases like Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct.
2527, 174 L.Ed.2d 314 (2009), Bullcoming v. New Mexico, 564 U.S. ___, 131
S.Ct. 2705, 180 L.Ed.2d 610 (2011), and Williams v. Illinois, ___ U.S. ___, 132
S.Ct. 2221, 183 L.Ed.2d 89 (2012), has provided enough guidance to establish
that in most criminal cases, autopsy evidence is testimonial and implicates a
defendant’s Sixth Amendment confrontation right.




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                                         A
                        Admission of the Autopsy Report
Melendez-Diaz
       {¶ 294} I write today as the author of State v. Craig, 110 Ohio St.3d 306,
2006-Ohio-4571, 853 N.E.2d 621. In Craig, this court held that an autopsy report
prepared by a nontestifying medical examiner created no confrontation-right
implications because it was a business record; the court in Crawford had indicated
that business records are, “by their nature,” not testimonial. Crawford. at 56. This
court wrote:


               An autopsy report, prepared by a medical examiner and
       documenting objective findings, is the “quintessential business
       record.” Rollins v. State (2005), 161 Md.App. 34, 81, 866 A.2d
       926. “The essence of the business record hearsay exception
       contemplated in Crawford is that such records or statements are
       not testimonial in nature because they are prepared in the ordinary
       course of regularly conducted business and are ‘by their nature’ not
       prepared for litigation.” People v. Durio (2005), 7 Misc.3d 729,
       734, 794 N.Y.S.2d 863.


Craig, ¶ 82.
       {¶ 295} However, the reasoning that an autopsy report is admissible as a
nontestimonial business record was undone by Melendez-Diaz. The court held
that the business-and-official-records hearsay exception does not permit an
otherwise inadmissible testimonial statement to be admitted into evidence.
Melendez-Diaz. at 324. The court pointed out that although documents kept in the
regular course of business are ordinarily admitted into evidence under the hearsay
exception, they will not be admitted “if the regularly conducted business activity




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is the production of evidence for use at trial.” Id. at 321. The records may have
had other purposes unrelated to their later use at trial, but if they were “ ‘made
under circumstances which would lead an objective witness reasonably to believe
that the statement would be available for use at a later trial,’ ” they are considered
testimonial. Id. at 311, quoting Crawford at 52.
       {¶ 296} The question of whether an objective witness who prepared an
autopsy report would believe that that statement would be available for later use
at trial is a difficult hurdle for the state to overcome in a case like this one, where
the medical examiner autopsied a victim who was shot twice in the head. Any
objective medical examiner would reasonably believe that an autopsy report that
reflected the examination of a shooting victim would be available for use at a later
trial. In the autopsy report admitted into evidence in this case, the cause of death
on the front page of the report is listed as “Gunshot wounds of head.
HOMICIDE.” Could a medical examiner who makes that conclusion believe
anything other than that the report will be available for use at a later trial? He
could not. But this court has distorted the applicable test.
“Primary Purpose” Test
       {¶ 297} Every autopsy report is not, by definition, testimonial. At least
one court has held that if a coroner did not contemplate at the time of the autopsy
that criminal conduct had occurred, then the autopsy report is nontestimonial.
United States v. James, 712 F.3d 79 (2d Cir.2013). The court in James, like the
majority, employed a “primary purpose” test in evaluating the autopsy reports.
Before James, the Second Circuit had held that “autopsy reports could be
admitted as business records without violating the Confrontation Clause.” Id. at
87. Recognizing that recent precedents like “Melendez-Diaz and Bullcoming, and
to a lesser extent Williams, call this categorical conclusion into doubt,” id. at 94,
the court concluded that “a statement triggers the protections of the Confrontation




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Clause when it is made with the primary purpose of creating a record for use at a
later criminal trial,” id. at 95-96.
        {¶ 298} Applying that test, the court held that testimony regarding a
nontestifying coroner’s autopsy report in a case where foul play had not been
suspected at the time of the autopsy did not implicate the Confrontation Clause.
In James, multiple victims had died from poisoning.         Dr. Corinne Ambrosi
testified about an autopsy that was conducted on one victim, Basdeo
Somaipersaud, by Dr. Heda Jindrak, who did not testify. The court concentrated
on the fact that murder was not suspected by the medical examiner who prepared
the report:


        The defendants do not argue * * * that Somaipersaud’s autopsy
        was anything other than routine—there is no suggestion that
        Jindrak or anyone else involved in this autopsy process suspected
        that Somaipersaud had been murdered and that the medical
        examiner’s report would be used at a criminal trial. * * * The
        autopsy report itself refers to the cause of death as “undetermined”
        and attributes it both to “acute mixed intoxication with alcohol and
        chlorpromazine” combined with “hypertensive and arteriosclerotic
        cardiovascular disease.”
                The autopsy was completed * * * substantially before any
        criminal investigation into Somaipersaud’s death had begun.
        During the course of Ambrosi’s lengthy trial testimony, neither the
        government nor defense counsel elicited any information
        suggesting that law enforcement was ever notified that
        Somaipersaud’s death was suspicious, or that any medical
        examiner expected a criminal investigation to result from it.




                                        86
                                January Term, 2014




       Indeed, there is reason to believe that none is pursued in the case of
       most autopsies.


Id. at 98-99. Because of the nontestifying medical examiner’s lack of expectation
of criminal involvement, the court concluded that “the autopsy report was not
testimonial because it was not prepared primarily to create a record for use at
criminal trial.” Id. at 99. The court concluded similarly about another victim’s
toxicology report—there was no testimony that a criminal investigation was
contemplated during the inquiry into the cause of death. Id. at 101.
       {¶ 299} The majority applies the primary-purpose test in a very different
way from the court in James. The majority does not conclude that the autopsy
here was not part of a criminal investigation; it could not reasonably do so.
Instead, it states the categorical conclusion that autopsy reports in Ohio in general
“are created ‘for the primary purpose of documenting cause of death for public
records and public health.’ ” Majority opinion at ¶ 57. That is, autopsy records
are created so that we can have records. That makes no more sense than holding
that the primary purpose behind the medical examiner’s autopsy report was that
his boss told him to do it, or so that he could get paid for the week.
       {¶ 300} The majority does not explore why the state requires coroners to
document causes of death in cases involving suspected violence. A coroner in
Ohio is statutorily interconnected with Ohio’s criminal-justice apparatus.
Pursuant to R.C. 313.12(A),


       [w]hen any person dies as a result of criminal or other violent
       means * * * the physician called in attendance, or any member of
       an ambulance service, emergency squad, or law enforcement
       agency who obtains knowledge thereof arising from the person’s
       duties, shall immediately notify the office of the coroner of the



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       known     facts   concerning      the   time,   place,   manner,   and
       circumstances of the death * * *.


       {¶ 301} Pursuant to R.C. 313.15, the coroner works with the prosecuting
attorney and other law-enforcement officials to determine how long a dead body
should remain in the coroner’s control; a coroner must keep possession of the
body until he has decided that he no longer requires the body to determine the
cause of death or until he has decided that law-enforcement officials no longer
need the body to assist them with their duties
       {¶ 302} Under R.C. 313.09, “[t]he coroner shall promptly deliver, to the
prosecuting attorney of the county in which such death occurred, copies of all
necessary records relating to every death in which, in the judgment of the coroner
or prosecuting attorney, further investigation is advisable.”
       {¶ 303} Pursuant to R.C. 313.10(A), autopsy records “shall be received as
evidence in any criminal or civil action or proceeding in a court in this state, as to
the facts contained in those records.”
       {¶ 304} The coroner relies on law enforcement to provide information
about suspicious deaths, consults with law enforcement on the preservation of
evidence, and informs prosecuting attorneys when further investigation is
advisable. It is not enough for the coroner to stamp “Homicide” on an autopsy
report and file it neatly away. The coroner’s verdict establishes the starting point
for a homicide investigation and eventual prosecution by determining a primary
fact: a person has died by unnatural causes, not by his own hand.
       {¶ 305} It is before that statutory backdrop that Dr. Dolinak received the
victim’s body. She had suffered two bullet wounds to the head. Curtiss Jones of
the Cuyahoga Coroner’s Office Trace Evidence and DNA Department testified
that after the body was received and prior to the autopsy, evidence was collected
to perform tests for gunpowder and trace metals and to evaluate blood and




                                          88
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fingernail scrapings taken from the victim.         Certainly, a reasonable medical
examiner in Dr. Dolinak’s position would have had to know that this case had
criminal implications.
       {¶ 306} In a case in which a coroner attests that the cause of death is
homicide, the medical examiner knows at the time he or she attests to that
statement that that report will be available for later use at trial. The level of detail
involved with the autopsy process demonstrates that the primary purpose of an
autopsy in a criminal case is potential prosecution. If only the fact of her death
was relevant, why was trace evidence collected from the victim’s body before the
autopsy?    In James, the circuit court looked, as this court should, at the
expectations of the coroner conducting the autopsy at the time—did the medical
examiner anticipate that the case was a criminal one?
       {¶ 307} Under the majority’s holding, a court would never look to the
expectations of a reasonable medical examiner to determine primary purpose.
The state has done his thinking for him—he may think he’s helping to solve a
crime, but this court says that he is only trying to keep meticulous records. Under
the majority opinion, no medical examiner ever creates an autopsy report for the
primary purpose of creating a record to be used at trial. Instead, I would hold that
whether a particular autopsy report is testimonial should be determined on a case-
by-case basis.
       {¶ 308} The majority decision is based entirely on the word “primary,”
stating that “[f]or Sixth Amendment purposes, it is only the primary purpose of a
document that determines whether it is testimonial or not.” (Emphasis sic.)
Majority opinion at ¶ 62. I do not agree that the word “primary” deserves the
artificial elevation that the majority gives it. It is not a part of the majority tests
for expert-witness testimony in Melendez-Diaz or Bullcoming; “primary purpose”
is not the common thread in the Supreme Court’s jurisprudence on testimonial
statements. James, 712 F.3d at 108 (Eaton, J., concurring). The primary-purpose



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test applies to police-interrogation cases like Davis v. Washington, 547 U.S. 813,
822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), in which statements made to police
by witnesses are evaluated by the declarant’s reason for making the statement. In
Davis, which concerned whether statements made in a 9-1-1 call to police were
testimonial, the court held:


        Statements are nontestimonial when made in the course of police
        interrogation under circumstances objectively indicating that the
        primary purpose of the interrogation is to enable police assistance
        to meet an ongoing emergency. They are testimonial when the
        circumstances objectively indicate that there is no such ongoing
        emergency, and that the primary purpose of the interrogation is to
        establish or prove past events potentially relevant to later criminal
        prosecution.


Id. at 822.
        {¶ 309} I would hold that although the primary-purpose doctrine may
apply to a lay witness who is in extremis at the time the statement is made, it does
not apply to professionals regularly involved in creating statements used at trial.
Instead, I favor the definition of “testimonial statement” as enunciated in Judge
Eaton’s concurrence in James: “[A] testimonial statement is one having an
evidentiary purpose, declared in a solemn manner, and made under circumstances
that would lead a reasonable declarant to understand that it would be available for
use prosecutorially.” James, 712 F.3d at 108 (Eaton, J., concurring).
        {¶ 310} Under that test, too, the autopsy report in this case would be
considered testimonial.




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Williams
       {¶ 311} A consideration of the court’s separate opinions in Williams
establishes that another possible justification for finding autopsy reports to be
nontestimonial, that the autopsy report does not target a certain suspect, has been
foreclosed. The court set forth the factual scenario at issue:


       In petitioner’s bench trial for rape, the prosecution called an expert
       who testified that a DNA profile produced by an outside
       laboratory, Cellmark, matched a profile produced by the state
       police lab using a sample of petitioner's blood.           On direct
       examination, the expert testified that Cellmark was an accredited
       laboratory and that Cellmark provided the police with a DNA
       profile. The expert also explained the notations on documents
       admitted as business records, stating that, according to the records,
       vaginal swabs taken from the victim were sent to and received
       back from Cellmark. The expert made no other statement that was
       offered for the purpose of identifying the sample of biological
       material used in deriving the profile or for the purpose of
       establishing how Cellmark handled or tested the sample. Nor did
       the expert vouch for the accuracy of the profile that Cellmark
       produced.


Williams, ___ U.S. ___, 132 S.Ct. at 2227, 183 L.Ed.2d 89.
       {¶ 312} The lead opinion in Williams, which totaled just four supporters,
offered two reasons why the expert’s statements were not testimonial. First, the
out-of-court statements from the Cellmark report were related by the testifying
expert solely for the purpose of explaining the assumptions on which the expert’s
opinion relied—that the Cellmark result matched the state’s result—and were not



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offered for their truth. Id. at 2240-2241. That issue is discussed below in this
opinion’s analysis of the surrogate-testimony issue. Second, and more relevant to
the issue of the admissibility of the autopsy report itself, the lead opinion
concluded that even if the Cellmark report had been introduced for its truth, there
would be no Confrontation Clause violation, because the statements did not
involve “out-of-court statements having the primary purpose of accusing a
targeted individual of engaging in criminal conduct.” Id. at 2242. The lead
opinion explained:


               Here, the primary purpose of the Cellmark report, viewed
       objectively, was not to accuse petitioner or to create evidence for
       use at trial. When the ISP lab sent the sample to Cellmark, its
       primary purpose was to catch a dangerous rapist who was still at
       large, not to obtain evidence for use against petitioner, who was
       neither in custody nor under suspicion at that time.


Id. at 2243.
       {¶ 313} In my dissent in State v. Crager, 116 Ohio St.3d 369, 2007-Ohio-
6840, 879 N.E.2d 745, a case involving the admission of a DNA test result
performed by a nontestifying analyst, I attempted to distinguish the admissible
autopsy report in Craig from a DNA test that I argued should not be admissible:


               The Confrontation Clause “applies to ‘witnesses’ against
       the accused.” (Emphasis added.) Crawford, 541 U.S. at 51, 124
       S.Ct. 1354, 158 L.Ed.2d 177. A coroner is concerned with how the
       decedent died rather than who may have killed him. Thus, the
       coroner is not a “witness” against a specific person when he or she
       prepares a report from an autopsy. A coroner’s report is not done at




                                        92
                                 January Term, 2014




       the behest of the prosecution in preparation for litigation; it is done
       pursuant to statute. See R.C. 313.131(B).


Crager, ¶ 107 (Pfeifer, J., dissenting).
       {¶ 314} But one thing that emerged from the fractured court in Williams is
that a majority of the court rejected the notion that test results are testimonial only
if the testing targets a known suspect. Justice Thomas, who disagreed with both
of the lead opinion’s rationales, but concurred in judgment, stated:


       The new primary purpose test [from the Williams plurality
       opinion] asks whether an out-of-court statement has “the primary
       purpose of accusing a targeted individual of engaging in criminal
       conduct.” Ante, at 2242.         That test lacks any grounding in
       constitutional text, in history, or in logic.


Williams, 132 S.Ct. at 2262, 183 L.Ed.2d 89 (Thomas, J., concurring in the
judgment).
       {¶ 315} Writing for the four justices in dissent, Justice Kagan stated:


       [T]he plurality states that the Cellmark report was “not prepared
       for the primary purpose of accusing a targeted individual.” Ante, at
       2248. Where that test comes from is anyone’s guess. Justice
       Thomas rightly shows that it derives neither from the text nor from
       the history of the Confrontation Clause. * * * And it has no basis
       in our precedents. We have previously asked whether a statement
       was made for the primary purpose of establishing “past events
       potentially relevant to later criminal prosecution”—in other words,
       for the purpose of providing evidence. Davis, 547 U.S. at 822, 126



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       S.Ct. 2266, 165 L.Ed.2d 224.          None of our cases has ever
       suggested that, in addition, the statement must be meant to accuse
       a previously identified individual.


Id. at 2273–2274 (Kagan, J., dissenting).
       {¶ 316} The concurrence and dissent establish that a majority of the court
rejects the idea that a diagnostic test is not testimonial if it does not target a
specific individual.
                                         B
                   Testimony by a Substitute Medical Examiner
       {¶ 317} The majority makes the unremarkable statement that “the majority
of jurisdictions that have examined this issue have concluded that a substitute
examiner, on direct examination, may at least testify as to his or her own expert
opinions regarding the autopsy and the victim’s death.” Majority opinion, ¶ 50.
However, the testifying examiner is greatly restricted from revealing to the jury
information from the autopsy report of the nontestifying preparer of the report.
The testifying medical examiner in this case improperly introduced testimonial
statements contained in the autopsy report prepared by the nontestifying medical
examiner; he became a surrogate for the presentation of testimonial statements.
Bullcoming
       {¶ 318} In Bullcoming, ___ U.S. ___, 131 S.Ct. at 2713, 180 L.Ed.2d 610,
the court held that a scientific report could not be used as substantive evidence
against the defendant unless the analyst who prepared and certified the report was
subject to confrontation. “As a rule, if an out-of-court statement is testimonial in
nature, it may not be introduced against the accused at trial unless the witness
who made the statement is unavailable and the accused has had a prior
opportunity to confront that witness.” Id. at 2713. The test in question was a
blood-alcohol test involving a defendant charged with driving while intoxicated.




                                        94
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The state attempted to enter the test results into evidence through the testimony of
another analyst; the analyst who performed the test was unavailable because he
was on unpaid leave for an undisclosed reason. The court rejected the surrogate
testimony.
       {¶ 319} The holding applies not just to the original analyst’s conclusions
and opinions, but also to factual observations he or she may have generated:


       Most witnesses, after all, testify to their observations of factual
       conditions or events, e.g., “the light was green,” “the hour was
       noon.”    Such witnesses may record, on the spot, what they
       observed. Suppose a police report recorded an objective fact—
       Bullcoming’s counsel posited the address above the front door of a
       house or the read-out of a radar gun. * * * Could an officer other
       than the one who saw the number on the house or gun present the
       information in court—so long as that officer was equipped to
       testify about any technology the observing officer deployed and
       the police department’s standard operating procedures? As our
       precedent makes plain, the answer is emphatically “No.”


Bullcoming at 2715.
       {¶ 320} Therefore, as the court held in Commonwealth v. Phim, 462 Mass.
470, 479, 969 N.E.2d 663 (2012), a substitute medical examiner cannot testify as
to statements of fact contained in an autopsy report:


                Consistent with the Sixth Amendment and traditional
       protections against hearsay * * * a substitute medical examiner
       may not testify on direct examination to the facts, data, and
       conclusions stated in an autopsy report. * * * Accordingly, the



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       prosecutor should not have elicited testimony on the description of
       the fatal wound contained in the nontestifying medical examiner’s
       files, or of the victim’s weight, height, and general physical
       condition.


Williams
       {¶ 321} Nor can factual statements contained in an autopsy report be
admitted into evidence as forming the basis of the substitute medical examiner’s
expert testimony. Navarette, 2013-NMSC-03, 294 P.3d 435, ¶ 13 and 19. The
court in Navarette derived that conclusion from Williams, based upon the
rejection by five members of the court in Williams of the lead opinion’s assertion
that an “an out-of-court statement that supports an expert witness’s opinion is not
offered to prove the truth of the matter asserted, but is only offered as the basis for
the expert’s opinion.” Navarette at ¶ 13. Justice Thomas’s concurrence and the
dissent of Justice Kagan together establish that conclusion. Justice Thomas wrote
that “statements introduced to explain the basis of an expert’s opinion are not
introduced for a plausible nonhearsay purpose. There is no meaningful distinction
between disclosing an out-of-court statement so that the factfinder may evaluate
the expert’s opinion and disclosing that statement for its truth.” Williams, 132
S.Ct. at 2257, 183 L.Ed.2d 89 (Thomas, J., concurring in the judgment). Justice
Kagan wrote for the four dissenters:


       [W]hen a witness, expert or otherwise, repeats an out-of-court
       statement as the basis for a conclusion,* * * the statement’s utility
       is then dependent on its truth. If the statement is true, then the
       conclusion based on it is probably true; if not, not. So to determine
       the validity of the witness's conclusion, the factfinder must assess
       the truth of the out-of-court statement on which it relies. That is




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       why the principal modern treatise on evidence variously calls the
       idea that such “basis evidence” comes in not for its truth, but only
       to help the factfinder evaluate an expert’s opinion “very weak,”
       “factually implausible,” “nonsense,” and “sheer fiction.” D. Kaye,
       D. Bernstein, & J. Mnookin, The New Wigmore: Expert Evidence
       § 4.10.1, pp. 196-197 (2d ed.2011); id., § 4.11.6, at 24
       (Supp.2012).


Id. at 2268–2269 (Kagan, J., dissenting).
Dr. Felo’s Testimony
       {¶ 322} In this case, at trial, Dr. Felo was encouraged by the state to
review the autopsy report on the witness stand and to reveal the report’s findings
to the jury. For instance, from the autopsy report, he related:


               And on the external surface of her body were some—three
       identifying tattoos, some evidence of medical therapy, and two
       specific injuries of the head. Each of those injuries were gunshot
       wounds with one injury, one gunshot wound within the right
       eyebrow, and the second gunshot wound through the left ear and
       into the skull near the ear on the left.


He also testified as to the internal examination conducted by Dr. Dolinak:


               Specifically there was a broken portion of the skull where
       the right forehead and eye socket is, there was a tear going through
       the right eyeball, and then in the brain there was some evidence of
       some bleeding and bruising caused by the bullets going into the
       skull and striking the brain.



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       {¶ 323} The state also inquired regarding whether Dr. Dolinak had
performed any microscopic evaluation of the body, and Dr. Felo responded,
“Samples were examined underneath the microscope of the brain which
documented the tears and bleeding of the brain caused by bullets going through
the brain.”
       {¶ 324} I would conclude that the admission of the information contained
in the autopsy report prepared by Dr. Dolinak through Dr. Felo’s testimony
violated Maxwell’s confrontation rights.      The Sixth Amendment does not
countenance surrogate testimony, nor does it allow the admission of testimonial
statements prepared by nontestifying experts to serve as the basis of a testifying
expert witness’s testimony.
       {¶ 325} Just because the Confrontation Clause would not allow Dr. Felo to
testify regarding Dr. Dolinak’s work does not mean that the Confrontation Clause
would prohibit Dr. Felo’s testimony altogether.       I agree with the court in
Navarette that a substitute medical examiner could testify regarding certain
materials within an autopsy file:


               This is not to say that all material contained within an
       autopsy file is testimonial and therefore inadmissible. Without
       attempting to catalogue all material in a file that could be
       admissible, we note that an expert witness may express an
       independent opinion regarding his or her interpretation of raw data
       without offending the Confrontation Clause. * * * For example, in
       this case, after being shown the autopsy photographs, [the
       substitute medical examiner] expressed his own opinion about the
       entry and exit wounds, explaining the basis for his opinion. He did
       not simply parrot the opinion or subjective statement of the




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       pathologist who performed the autopsy and took the photographs.
       Thus, he was available for cross-examination.


Navarette, 2013-NMSC-003, 294 P.3d 435, ¶ 22. In this case, too, Dr. Felo
testified about his own conclusions regarding McCorkle’s wounds while viewing
autopsy photographs.     To that extent, his testimony was proper under the
Confrontation Clause.
                                        C
                               Other Jurisdictions
       {¶ 326} On the federal level, the Eleventh and D.C. Circuits, in United
States v. Ignasiak, 667 F.3d 1217, 1231 (11th Cir.2012), and United States v.
Moore, 651 F.3d 30, 72-73 (D.C.Cir.2011), have held that forensic pathology
reports are testimonial for Confrontation Clause purposes.
       {¶ 327} Further, at least eight state courts of last resort also find that
autopsy reports are testimonial. State v. Locklear, 363 N.C. 438, 452, 681 S.E.2d
293 (2009); Navarette; State v. Kennedy, 229 W.Va. 756, 735 S.E.2d 905 (2012);
Commonwealth v. Reavis, 465 Mass. 875, 992 N.E.2d 304 (2013); People v.
Childs, 491 Mich. 906, 810 N.W.2d 563 (2012); Cuesta-Rodriguez v. State, 2010-
OK CR 23, 241 P.3d 214 (2010), cert. denied 132 S.Ct. 259, 181 L.Ed.2d 151
(2011); Wood v. State, 299 S.W.3d 200, 209-210, 214-215 (Tex.Crim.App.2009);
State v. Lui, 179 Wash.2d 457, 315 P.3d 493 (2014).
                                        II
                                 Other Concerns
       {¶ 328} The varied jurisprudence on the issue of the testimony of
substitute medical examiners demonstrates that it is a recurring issue that
demands resolution. Medical examiners die, they retire, and they move between
jurisdictions. The nontestifying medical examiner who performed the autopsy in
this case, Dr. Dolinak, is perhaps the poster child for the issue. In Wood, 299



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S.W.3d 200, the tables were turned: Dr. Dolinak, since moved to Texas, testified
instead of the medical examiner who conducted the autopsy. The Texas Court of
Appeals held that Dr. Dolinak improperly revealed contents of the nontestifying
medical examiner’s autopsy report in his testimony: “Under the circumstances of
this case, the disclosure of the out-of-court testimonial statements underlying Dr.
Dolinak’s opinions, even if only for the ostensible purpose of explaining and
supporting those opinions, constituted the use of the testimonial statements to
prove the truth of the matters stated in violation of the Confrontation Clause.” Id.
at 213.
          {¶ 329} Although the United States Supreme Court has not dealt squarely
with the issue, in the corners and footnotes of Melendez-Diaz, the majority and
dissenters frame the practical concerns about the admissibility or inadmissibility
of autopsy reports. Writing for the four dissenters in Melendez-Diaz, Justice
Kennedy mentions the autopsy report as the drum major in a parade of horribles
created by the majority decision:


          [T]he range of other scientific tests that may be affected by the
          Court’s new confrontation right is staggering. See, e.g., Comment,
          Toward a Definition of “Testimonial”: How Autopsy Reports Do
          Not Embody the Qualities of a Testimonial Statement, 96 Cal. L.
          Rev. 1093, 1094, 1115 (2008) (noting that every court post-
          Crawford has held that autopsy reports are not testimonial, and
          warning that a contrary rule would “effectively functio[n] as a
          statute of limitations for murder”).


Melendez-Diaz, 557 U.S. at 335, 129 S.Ct. 2527, 2546, 174 L.Ed.2d 314.
          {¶ 330} Justice Scalia, writing for the majority, addresses the dissenters’
claim that confrontation is not the only way to challenge forensic testing:




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“Respondent and the dissent may be right that there are other ways—and in some
cases better ways—to challenge or verify the results of a forensic test.” Id. at 318.
But the majority adds in a footnote, “Though surely not always. Some forensic
analyses, such as autopsies and breathalyzer tests, cannot be repeated, and the
specimens used for other analyses have often been lost or degraded.” Id. at fn. 5.
       {¶ 331} These excerpts from Melendez-Diaz frame the concerns about
autopsy reports. On the one hand, there is the concern that autopsy reports can
last only as long as a preparer survives or stays within the jurisdiction. On the
other hand, if the person who performed the autopsy is not available to testify, a
defendant is powerless to rebut the findings of the one medical examiner who, in
most cases, is the only person who will ever perform an autopsy on the victim in
question.
       {¶ 332} In my mind, the “statute of limitations on murder” belies the
argument for autopsy reports being nontestimonial. If having no autopsy report
available makes a murder conviction impossible, elevating an autopsy to a central
role in a murder trial, does that not make it all the more imperative that a
defendant have an opportunity to call into doubt the veracity of the report through
cross-examination?
       {¶ 333} In reality, in most cases, like this one, the autopsy report will not
affect the trial in a meaningful way. But there are other cases in which autopsy
testimony will be crucial. There are innumerable conclusions that a coroner could
make in an autopsy report—cause of death, time of death, whether certain injuries
are antemortem or postmortem, the presence of defensive wounds, evidence of
rape, whether a baby was shaken—that can implicate or exonerate a defendant.
Further, the determinations made in an autopsy are not mechanical. “Autopsies
are also much more complex than the identification of a narcotic, and are more
prone to shades of gray, as their outcome is a diagnosis, not a chemical compound
match.”     Tsiatis, Putting Melendez-Diaz on Ice: How Autopsy Reports Can



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Survive the Supreme Court’s Confrontation Clause Jurisprudence, 85 St. John’s
L.Rev. 355, 383 (2011).
       {¶ 334} “Medical examiners are not mere scriveners” and “autopsy reports
are the product of the skill, methodology, and judgment of the highly trained
examiners who actually performed the autopsy.” United States v. Ignasiak, 667
F.3d 1217, 1232 (11th Cir.2012). It is the diagnostic, subjective nature of autopsy
reports that makes them especially appropriate for cross-examination:


               The crux of the confrontation issue—the need to confront
       and cross-examine the attending forensic pathologist—is that
       forensic pathologists are physicians. Physicians exercise judgment
       and make mistakes, whether they treat living, breathing patients or
       perform forensic autopsies. Courts that have adopted the view that
       forensic autopsy reports simply memorialize objective data are
       misinformed. Neither forensic pathologists nor forensic autopsy
       reports are fungible. Forensic pathologists would not necessarily
       report the same findings if each were, hypothetically, able to
       perform the same autopsy.


Ginsberg, The Confrontation Clause and Forensic Autopsy Reports—A
“Testimonial,” 74 La.L.Rev. 117, 168 (2013).
       {¶ 335} The cross-examination of a surrogate is thus inadequate for a
defendant:


               The only vehicle by which a criminal defendant may
       explore the subjectivity involved in the performance of the forensic
       autopsy—to question the judgment of the examining forensic
       pathologist—is cross-examination. The in-court testimony of the




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        surrogate forensic pathologist who examines the autopsy report
        prepared by the examining pathologist is an inadequate substitute.
        The surrogate witness is not the physician who was required to be
        familiar with the facts and the autopsy protocol, examine the
        victim’s body, perform the autopsy procedure, make and report
        findings, and report the cause and manner of death. The cross-
        examination of the surrogate yields very little. The surrogate can
        rely on the autopsy findings with impunity. There is simply little
        to be gained by the defendant in the effort to cross-examine the
        surrogate. Cross-examination is the great truth-seeking test, but it
        is an empty exercise when the surrogate testifies at trial.


Id. at 170.
        {¶ 336} The point made by the court in Melendez-Diaz rings especially
true with regard to autopsy reports: “Confrontation is designed to weed out not
only the fraudulent analyst, but the incompetent one as well.” Melendez-Diaz,
557 U.S. at 319, 129 S.Ct. 2527, 174 L.Ed.2d 314.             If other forensic tests
implicate a defendant’s confrontation right, certainly an autopsy report should:


               Both Bullcoming and Melendez–Diaz hold that a laboratory
        analyst’s report of sufficient solemnity triggers the protections of
        the Confrontation Clause. It would be incongruous indeed, if an
        autopsy report requiring numerous skilled judgments on the part of
        a medical examiner, did not require the same confrontation.


James, 712 F.3d at 111 (Eaton, J., concurring).
        {¶ 337} The central question in the most serious of crimes is whether the
victim involved suffered an unnatural death at the hands of another. The idea that



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a person who makes that determination is not subject to cross-examination is at
direct odds with the Confrontation Clause.
                                       III
       {¶ 338} Ultimately, I agree with the majority that the admission of Dr.
Dolinak’s autopsy report into evidence and Dr. Felo’s testimony regarding it
constituted harmless error beyond a reasonable doubt. I therefore concur in the
judgment of the majority as to Maxwell’s guilt. I dissent from the imposition of
the sentence of death.
       O’NEILL, J., concurs in the foregoing opinion.
                           ______________________
       Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Saleh
S. Awadallah, Matthew E. Meyer, Thorin O. Freeman, Brian M. McDonough, and
Adam M. Chaloupka, Assistant Prosecuting Attorneys, for appellee.
       David L. Doughten and John P. Parker, for appellant.
                         _________________________




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