[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State 

v. McKelton, Slip Opinion No. 2016-Ohio-5735.] 

NOTICE 

This slip opinion is subject to formal revision before it is published in an 

advance sheet of the Ohio Official Reports. Readers are requested to 

promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65 

South Front Street, Columbus, Ohio 43215, of any typographical or other 

formal errors in the opinion, in order that corrections may be made before 

the opinion is published. 

SLIP OPINION NO. 2016-OHIO-5735

THE STATE OF OHIO, APPELLEE, v. MCKELTON, APPELLANT.

[Until this opinion appears in the Ohio Official Reports advance sheets, it 

may be cited as State v. McKelton, Slip Opinion No. 2016-Ohio-5735.] 

Criminal Law—Aggravated murder—Death penalty—Conviction and death 

penalty affirmed. 

(No. 2010-2198—Submitted January 13, 2015—Decided September 13, 2016.) 

APPEAL from the Court of Common Pleas of Butler County, 

No. CR2010-02-0189. 

_________________ 

LANZINGER, J. 

{¶ 1} Calvin McKelton appeals his convictions of the February 2009 

aggravated murder of Germaine (“Mick”) Evans and the July 2008 murder of 

Margaret (“Missy”) Allen. For the reasons that follow, we reject each proposition 

of law and affirm the convictions and death sentence. 

 
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I. FACTUAL AND PROCEDURAL BACKGROUND 

A. Pretrial Background 

{¶ 2} In February 2010, the state charged McKelton with the murder of 

Allen, R.C. 2903.02(B), and the aggravated murder of Evans, R.C. 2903.01(A). 

The aggravated-murder charge carried a firearm specification, R.C. 2941.145, and 

two death specifications, R.C. 2929.04(A)(3) (escaping detection) and (A)(8) 

(killing to prevent testimony in a criminal proceeding). 

{¶ 3} McKelton was also charged with two counts of felonious assault, R.C. 

2903.11(A)(1), and two counts of domestic violence against Allen, R.C. 

2919.25(A); gross abuse of her corpse, R.C. 2927.01(B); aggravated robbery and 

aggravated arson, R.C. 2911.01(A)(3) and 2909.02(A)(2); tampering with 

evidence, R.C. 2921.12(A)(1); and intimidating a witness in a criminal case, R.C. 

2921.04(B). The state, with leave of court, dismissed the aggravated-robbery 

charge before trial. 

{¶ 4} A jury trial began in October 2010. 

B. The State’s Case-in-Chief 

1. Domestic Abuse of Missy Allen 

{¶ 5} Missy Allen, a criminal-defense attorney who had represented Calvin 

McKelton, began dating him in 2006 or 2007. By 2008, McKelton was living with 

Allen and her nieces, T.W. and Z.D., at Allen’s home in Butler County. 

{¶ 6} T.W., then a teenager, testified that she had witnessed physically 

violent arguments between McKelton and Allen while they were living together. 

One time she found McKelton on top of Allen, choking her. During another 

altercation, Allen asked T.W. to call the police, but McKelton took the phone from 

T.W. and threw it on a counter. T.W. said that after things “start[ed] to get bad,” 

Allen told her not to say anything about what happened in her house. 

{¶ 7} A document on Allen’s home computer, created on September 13, 

2007, chronicled abuse. The first-person narrative described an incident during 
January Term, 2016 

3

which McKelton hit, kicked, and pushed Allen and then choked her twice, once 

with such force that she nearly lost consciousness. She listed injuries to her face, 

right side, right leg, back, and head as well as blood clots in her eyes due to “the 

loss of air.” She was afraid because McKelton had threatened her and her niece. 

She indicated that she intended to prosecute and to request a temporary protection 

order and a high bond. 

{¶ 8} A notebook found in Allen’s home office contained handwritten notes 

that repeatedly mentioned the name “Calvin.” Charia Mam, a friend of Allen’s, 

testified that the handwriting was Allen’s. Allen described McKelton’s grabbing 

her by the neck, hitting her lip, threatening to burn her eye with a cigarette, and 

pushing her down “b/c tried to choke.” Allen also described calling for her niece 

to call 9-1-1. An undated apology note to Allen, written in McKelton’s 

handwriting, stated: “I Love u baby, I don’t ever want to hurt u again. * * * I want 2 

say sorry 2 you and 2 God for what Ive done.” 

{¶ 9} Z.D., then 11 years old, testified that on May 4, 2008, she heard 

McKelton yelling and Allen screaming from the direction of the garage. She called 

9-1-1. Officer Kelly Smith was dispatched to Allen’s home, but McKelton and 

Allen were gone when she arrived. The officer said that Z.D. was visibly shaking 

and acting with “extreme fear.” McKelton returned while Smith was still at the 

house. He “burst through the door” yelling Z.D.’s name and told Smith “to bounce 

[her] ass out of the house.” Allen then called the house and told the officer that she 

was in the hospital. Z.D. testified that Allen later told her she was “kind of mad” 

that Z.D. had called 9-1-1 and had not come into the garage. 

{¶ 10} Allen gave several accounts of her argument with McKelton. She 

told police that McKelton had not harmed her and “if anything, she essentially 

provoked him” by shoving him. She said that she tripped over something in the 

garage. She told hospital personnel that she had fallen over a lawn mower or bike, 
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4

told a children’s services representative that she had fallen over a chair, and told 

her physical therapist that she had fallen down a step. 

{¶ 11} Allen’s injury required surgery to place four screws in her ankle as 

well as physical therapy. According to two friends, Shaunda Luther and Mam, 

Allen became “increasingly depressed,” “somewhat detached,” and “distant” after 

the injury. McKelton was always around, and it was hard for Mam and Luther to 

have meaningful conversations with Allen. Because she could not drive, she 

depended on McKelton to take her to medical appointments and to court. And Luther 

said that Allen was depressed because she could not make money to support herself. 

Her bank account was overdrawn as of July 25, 2008. 

{¶ 12} Mam and Luther both testified that Allen had expressed concern 

about McKelton’s jealousy. Allen told Mam that McKelton “went through her 

phone and text record frequently, and it always ended in an argument.” She also 

told Mam that McKelton would kill her if he knew another man had sent her flowers 

or if he thought she had slept with his friend. 

{¶ 13} In July 2008, Allen told Mam that she thought she was pregnant. 

She told her friend that she feared having a baby would tie her to McKelton forever 

but that McKelton would kill her if she had an abortion without telling him. Allen 

suffered a miscarriage later that month. 

2. The Murder of Missy Allen

{¶ 14} On July 27, 2008, a woman was found dead in woods on the east 

side of Cincinnati. A piece of plastic resembling a shower-curtain liner was 

wrapped around the victim’s thighs, and a bag of counterfeit drugs lay near her 

body. 

{¶ 15} Jan Gorniak, D.O., then a deputy coroner for Hamilton County, 

performed an autopsy on July 28, 2008. She classified the death as a homicide caused 

by strangulation. Gorniak could not determine a precise time of death, but she 
January Term, 2016 

5

estimated that the body had been in the woods for one and one-half to three days. 

After the autopsy, police identified the woman as Allen. 

a. Physical evidence 

{¶ 16} Police then searched Allen’s home. The front door was locked and 

the security system was activated, but inside they found a burn mark in the master 

bedroom and several items that later tested positive for gasoline or gasoline 

components. Officers collected samples of drywall that appeared to have blood on 

them; the samples were later confirmed to have a DNA profile consistent with 

Allen’s DNA profile. Two items—a cigarette butt and the door to the garage, which 

had a smear that appeared to be blood—had a DNA profile consistent with 

McKelton’s DNA profile. 

{¶ 17} Valuable items—including Allen’s purse—were in plain view, 

apparently undisturbed. Police found a long piece of weed-eater cord on the kitchen 

floor. There was a shower curtain on the hallway floor but no sign of a showercurtain liner. 

{¶ 18} Allen’s car was found in the village of Golf Manor shortly after 

midnight on July 29, 2008. It was locked and did not appear to have been tampered 

with. Cell-phone records indicated that the last outgoing call on Allen’s phone was 

at 8:27 p.m. on July 25, 2008, to a phone number used by McKelton. Her laptop 

computer was last used around 4 p.m. that day. 

b. Investigation of McKelton 

{¶ 19} On July 29, McKelton came to the Fairfield Police Department. After 

he signed a Miranda waiver, he asked if there were any warrants for him. There 

were not. McKelton did not answer any other questions. Officers noted small 

abrasions (possibly burn marks) on McKelton’s hands. They photographed him 

and took fingerprints, DNA samples, and fingernail scrapings. The DNA samples 

were not consistent with male DNA collected from Allen’s fingernails. 
SUPREME COURT OF OHIO

6

{¶ 20} Based on cell-phone records, police believed that McKelton had 

been near Allen’s house on the night of July 25 and the morning of July 26. He 

made repeated calls that bounced off the Sprint cell-phone tower closest to Allen’s 

house between 9:02 p.m. and 10:52 p.m. on July 25. McKelton’s next 18 calls 

bounced off several towers, but he was near the Sprint tower closest to Allen’s 

house again between 8:01 a.m. and 9:17 a.m. on July 26. 

{¶ 21} Later, police learned of a possible eyewitness to Allen’s murder: 

McKelton’s friend, Evans. Andre Ridley, a friend of Evans’s, testified that Evans 

had told him about Allen’s death a few days after her body was found. Evans told 

Ridley that he had been at Allen’s house when he heard her and McKelton fighting 

in another room. Evans walked in and saw McKelton choking Allen. McKelton 

then smacked Allen, telling her to wake up, but she did not. The men “started 

staging the scene as a robbery.” Evans told Ridley that he and McKelton had 

wrapped up Allen’s body and put it in the car, and McKelton set fire to the house. 

The two men drove to a wooded area and dumped the body. McKelton threw some 

drugs beside it. 

{¶ 22} According to Ridley, Evans said that McKelton had assured him that 

he could be charged only with abuse of a corpse. Evans also reported that McKelton 

gave him 20 ounces of cocaine (worth $20,000 to $40,000). Ridley did not speak 

with police until months later, after Evans was killed. 

{¶ 23} Audrey Dumas testified that she had been with McKelton the night 

that Allen died. Dumas said that she went out with McKelton one weekend night 

in late July 2008. McKelton picked her up around 11:15 p.m. in a black BMW, 

which she recognized as Allen’s car. They went to a club until 2:15 or 2:30 a.m. 

and then drove around downtown with McKelton’s friends. McKelton brought her 

home around 3:30 or 4:00 a.m. 

{¶ 24} On July 25, McKelton was near Allen’s house at 10:52 p.m. After 

that, he made or received seven calls—which bounced off different cell-phone 
January Term, 2016 

7

towers—before a call bounced off a tower in the vicinity of Dumas’s house at 2:25 

a.m. on July 26. 

3. The Murder of Mick Evans

{¶ 25} Police did not learn that Evans may have witnessed Allen’s murder 

until seven months after Allen’s death. Detective Jenny Luke obtained a subpoena 

for Evans’s DNA and began trying to locate him. 

{¶ 26} On February 24, 2009, Luke telephoned Evans’s sister, Crystal 

Evans, and asked her to tell Evans that police wanted to talk to him about Allen’s 

death. Luke did not realize that Crystal had been dating McKelton since September 

2008 and that he was living with her. Crystal testified that McKelton easily could 

have overheard her conversation with Luke. McKelton was at Crystal’s home when 

she called Evans to relay Luke’s message. 

{¶ 27} On March 1, Evans’s body was found at the bottom of steps leading 

into a city park. Four .40 caliber shell casings were nearby. Neighborhood 

residents reported to police that they had heard four or five gunshots near the park 

between 9:00 p.m. and midnight on February 27, 2009. 

{¶ 28} Gretel Stephens, M.D., a deputy coroner for Hamilton County, 

performed an autopsy the next day. She gave her opinion that Evans had been dead 

more than 24 hours and possibly for two or three days. He had been killed by a 

single gunshot wound to the back of the head on the left side. The shot had been 

fired at “very, very close” range, or possibly even with contact. Stephens recovered 

bullet fragments that were consistent with a .40 caliber Smith & Wesson Sigma 

Series semiautomatic. 

{¶ 29} Police never found the murder weapon. However, the state did 

introduce testimony from Allen’s teenaged niece, T.W., about a time when she saw 

McKelton with a gun, which she said looked like a .40 caliber automatic. 

{¶ 30} Cell-phone records indicated that Evans had last placed a call at 9:55 

p.m. and last sent a text message at 10:01 p.m. on February 27. According to 
SUPREME COURT OF OHIO

8

Crystal, Evans did not trust anyone, so “[s]omebody close to him” must have shot 

him. 

{¶ 31} Crystal provided an alibi for McKelton on the night of February 27, 

2009. She told police that he had arrived home before 9 p.m. but at trial admitted 

that it may have been later. She said that after McKelton got home, she went out 

to buy candy. She testified that when she returned home around 10:00 p.m., 

McKelton was gone. Crystal called him, and he said he had gone to get cigarettes. 

McKelton walked in with a pack of cigarettes about five minutes later and the two 

stayed in for the rest of the night. On cross-examination, Crystal said that she had 

called McKelton at 9:22 p.m. and he arrived home for the night a few minutes later. 

{¶ 32} Cell-phone records indicate that from 9:10 to 9:51 p.m. on February 

27, several calls were made back and forth among McKelton, Brian “Red” Adams, 

an old friend of McKelton’s, and Audrey Dumas, McKelton’s former girlfriend. 

Dumas then called McKelton’s number more than two dozen times, ending at 11:37 

p.m. Dumas testified that at 11:01 p.m., she was parked outside Crystal’s apartment, 

believed McKelton was inside, and tried to disrupt their time together by sending text 

messages telling him to come out. Later, beginning at 2:32 a.m., McKelton called 

Dumas’s and Red’s numbers multiple times. Crystal testified she did not recall 

waking up or hearing McKelton on the phone during the night. 

{¶ 33} After Evans’s murder, Crystal avoided McKelton for several weeks, 

but they resumed their relationship. In June 2010, she gave birth to his son. She 

regularly visited McKelton in jail as he awaited trial, and they exchanged frequent 

phone calls and letters. In letters, he reminded her that he was with her the night 

Evans died and told her to stop “com[ing] at” him like she did not “know for [sure 

he] was at home wit[h her].” He explained that phone records showed that Evans 

died at 10:00 p.m. and told Crystal, “[W]e were home asleep at ten.” 

 
January Term, 2016 

9

4. McKelton’s Admissions

{¶ 34} Multiple witnesses testified that McKelton implicated himself in the 

deaths of Allen and Evans. Three of them—Marcus Sneed, Charles Bryant, and 

Lemuel Johnson—were informants charged with other offenses. 

{¶ 35} Sneed, who had grown up in the same neighborhood as McKelton, 

testified that he had run into McKelton at a club and confronted him about Allen’s 

death. McKelton told Sneed that he had choked Allen during “a heated argument” 

but that he “didn’t mean to.” McKelton mentioned something about Allen’s 

pregnancy and about her threatening him with her knowledge of his crimes. 

{¶ 36} McKelton also told Sneed that “a friend help[ed] him” get rid of 

Allen’s body. Sneed confronted McKelton again after hearing rumors about 

Evans’s death. McKelton stated that he had had to kill Evans because Evans “was 

the only guy that could link him to the murder.” Sneed did not report this 

information to police until he was later arrested on federal drug-conspiracy charges. 

{¶ 37} Bryant, who had met McKelton during a 2003 incarceration, testified 

that McKelton had told him about the deaths of Allen and Evans. McKelton said 

that he had been involved with an attorney and choked her during an argument 

about whether she was pregnant with someone else’s baby. McKelton also 

reminded Bryant about what had happened to Evans, which Bryant interpreted as a 

threat. Bryant did not come forward with this information until he was incarcerated 

on new charges. 

{¶ 38} Johnson testified that McKelton had confessed to both murders 

while they were discussing drug-related business. According to Johnson, 

McKelton needed money and was trying to convince him to let him take care of 

some witnesses for him. McKelton described situations in which he had eliminated 

witnesses in the past. He said that he had been with Evans’s sister when a detective 

called looking for Evans to discuss Allen’s death. He explained that Evans had 

been a “weak link” who could connect him to Allen’s murder, so he had to kill him 
SUPREME COURT OF OHIO

10 

before the detective found him. But Johnson did not report this conversation until 

he was awaiting sentencing for a federal drug offense. 

{¶ 39} The state also called Gerald Wilson and Michael Nix, two 

acquaintances of McKelton’s who had reported hearing McKelton admit 

responsibility for Allen’s death. 

{¶ 40} Prior to the trial, Wilson told police about a conversation that he had 

had with Michael Howell and McKelton in April or May, 2009. One night, Howell 

gave Wilson a ride; McKelton was in the front passenger seat, texting someone. 

McKelton commented, “Man, that bitch ain’t giving my shit to nobody. If she did, 

I’m gonna choke her like I did Margaret and get away with it.” Howell warned 

McKelton to watch what he said. McKelton responded that Wilson “ain’t gonna 

do nothing. If he did, he gonna end up like Mick did.” At trial, Wilson recanted 

and insisted that he knew nothing about Allen’s murder, so the prosecutor played a 

recording of his original police statement for the jury. 

{¶ 41} Nix refused to testify for the state at trial, so Detective David 

Gregory testified about his prior statements under the doctrine of forfeiture by 

wrongdoing. According to Gregory, Nix had asked McKelton about Allen, and 

McKelton said that things “got out of hand, and he didn’t mean to do it.” Gregory 

also testified that Nix said that Evans, McKelton, Red, and Lamar Simmons were 

in his house around 11 p.m. on February 27, 2009, when he came home. Nix said 

that the men left about an hour later. He never saw Evans again. 

{¶ 42} Sheridan Evans, the mother of Evans and Crystal, testified that 

McKelton spoke to her less than a week after Allen’s body was found. He “was 

crying very hard” and said that “he loved Missy and it was a mistake.” McKelton 

told Sheridan that he had “tried to revive [Allen] for 10 minutes, but [he] couldn’t 

bring her back.” Sheridan also testified that McKelton and Red came to speak with 

her after she met with homicide detectives in March 2009. During the conversation, 
January Term, 2016 

11 

Sheridan mentioned rumors that McKelton had killed Evans. McKelton denied the 

rumors but said, “I don’t want to see nothing else happen to none of your kids.” 

C. The Defense Case 

{¶ 43} Defense counsel did not present any witnesses during the first phase 

of the trial. However, they introduced almost 30 exhibits, including additional 

crime-scene photos, the transcript of a police interview with Crystal, and some 

additional phone records. 

D. Verdict and Sentencing 

{¶ 44} The jury convicted McKelton on all counts and specifications except 

Count 11, intimidation of a witness. The trial court merged the death specifications 

before sentencing, and the state elected to proceed on R.C. 2929.04(A)(8), 

murdering a witness to prevent his testimony in a criminal proceeding. After the 

mitigation phase and the jury recommendation, the trial court sentenced McKelton 

to death for the aggravated murder of Evans. The court also sentenced him to 15 

years to life in prison for Allen’s murder and to a total of 25 years for the remaining 

convictions. 

{¶ 45} McKelton now appeals, raising 21 propositions of law. We address 

his propositions out of order for ease of analysis. 

II. ANALYSIS 

A. Pretrial Issues 

1. Nondisclosure of Witnesses: Proposition of Law No. 2 

{¶ 46} In his second proposition of law, McKelton challenges the 

prosecutor’s failure to disclose eight witness names until the night before his trial 

began. 

a. The nondisclosure hearing 

{¶ 47} The state originally filed a certification for nondisclosure, pursuant 

to Crim.R. 16(D), of 23 witness names. After a request from the defense, the trial 

judge referred the matter to another judge to hold an in camera hearing. By the 
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12 

time the hearing took place, the prosecutor had disclosed all but eight witnesses, 

seven of whom would testify at trial. At the hearing, the prosecutor argued that 

disclosure would subject the witnesses or a third party to potential harm, coercion, 

or intimidation. He offered four pieces of evidence in support. 

{¶ 48} First, McKelton had been convicted of intimidating a witness in 

2003. Second, in a jailhouse letter to Crystal, McKelton said that they should post 

witness names in a public place when they got them. Third, in a phone call shortly 

after McKelton’s arrest, an associate of McKelton’s told him not to worry because 

they would “John Brown this case.” The prosecutor explained the reference: a 

Cincinnati homicide defendant named John Brown had been acquitted when every 

witness against him disappeared or recanted on the eve of his trial. Fourth, a 

witness whose name had been disclosed, Michael Nix, had recently been shot at 

shortly after a known associate of McKelton’s had asked Nix about McKelton’s 

case. 

{¶ 49} The judge asked what motivated the state’s heightened concern for 

these eight witnesses. The prosecutor explained that two witnesses “were 

extremely afraid to have their names disclosed” and likely would not have agreed 

to testify absent nondisclosure. In addition, three witnesses, who were then 

incarcerated, were fearful for themselves and their families. The prosecutor said 

nothing specific about two witnesses. 

{¶ 50} The judge upheld the nondisclosure as a proper exercise of 

prosecutorial discretion. The prosecutor gave the defense the undisclosed 

witnesses’ names and all but one of the statements on the evening before trial. One 

statement was not provided until the next morning, shortly before the trial began. 

b. Crim.R. 16(D) and (F) 

{¶ 51} As an exception to the general rule requiring the disclosure of 

witness names prior to trial, a prosecutor may seek relief from disclosure under 

Crim.R. 16(D)(1) if the prosecutor has “reasonable, articulable grounds to believe 
January Term, 2016 

13 

that disclosure will compromise the safety of a witness, victim, or third party, or 

subject them to intimidation or coercion.” Such grounds include “the nature of the 

case, the specific course of conduct of one or more parties, threats or prior instances 

of witness tampering or intimidation, * * * and any other relevant information.” 

Crim.R. 16(D). 

{¶ 52} Upon a defendant’s motion, an in camera hearing must be conducted 

seven days prior to trial. Crim.R. 16(F). If the trial court finds an abuse of 

prosecutorial discretion, then the prosecutor must immediately disclose the 

material. 2010 Staff Note, Crim.R. 16(F). Otherwise, the material must be 

disclosed “no later than commencement of trial.” Crim.R. 16(F)(5). We review a 

lower court’s rulings on discovery matters for an abuse of discretion. State ex rel. 

Duncan v. Middlefield, 120 Ohio St.3d 313, 2008-Ohio-6200, 898 N.E.2d 952, 

¶ 27. 

{¶ 53} McKelton argues first that the court should have found an abuse of 

prosecutorial discretion under Crim.R. 16(D)(1) because the prosecutor’s grounds 

were about only McKelton and the case generally and were not specific to each 

witness. But Crim.R. 16 specifically contemplates nondisclosure for the reasons 

the prosecutor cited here: the nature of the case against McKelton, his past 

conviction for intimidating a witness, and evidence that he had sought to intimidate 

witnesses in this case. 

{¶ 54} Second, McKelton argues that the prosecutor could not rely on the 

undisclosed witnesses’ representations that they feared McKelton’s knowing that 

they would testify. McKelton contends that the prosecutor, not the witness, is 

responsible for assessing any possible danger to a witness. While the rules vest the 

prosecutor with responsibility for making the nondisclosure determination, a 

prosecutor is not precluded from taking a witness’s own impressions into account 

when deciding whether to disclose that witness’s identity. A witness’s fear of 
SUPREME COURT OF OHIO

14 

reprisal is relevant to the question whether disclosure might compromise the 

witness’s safety. 

{¶ 55} Third, McKelton argues that the prosecutor acted arbitrarily because 

the nondisclosed witnesses offered testimony similar to, but less damaging than, 

other witnesses whose names were disclosed. Crim.R. 16 does not require the state 

to explain its reasons for choosing to disclose, and McKelton did not request such 

an explanation. 

{¶ 56} Finally, McKelton says that the eight undisclosed witness names 

should have been disclosed at least seven days before trial. He ignores the language 

of Crim.R. 16(F), which plainly states that when a trial court finds no abuse of 

discretion in a prosecutor’s nondisclosure decision, materials must be disclosed no 

later than the commencement of trial. 

{¶ 57} In sum, the trial court did not abuse its discretion by affirming the 

certificate of nondisclosure as a proper exercise of prosecutorial discretion. 

c. Constitutional challenges to late disclosure

{¶ 58} McKelton also argues that the late disclosure of these witnesses 

violated several of his constitutional rights. 

{¶ 59} First, he says that the late disclosure violated the Confrontation 

Clause of the Sixth Amendment to the U.S. Constitution. A defendant’s 

confrontation rights may be “legitimately constrained” by rules of discovery. State 

v. Williams, 23 Ohio St.3d 16, 18, 490 N.E.2d 906 (1986). We have already 

rejected a confrontation challenge to the predecessor to Crim.R. 16(D), former 

Crim.R. 16(B)(1)(e), 34 Ohio St.2d li, at lii-liii, which permitted trial courts to 

control the disclosure of information that might subject a witness to physical harm 

or coercion. Williams at 18-19. And in any event, he did have a meaningful 

opportunity to confront the witnesses against him: the witnesses were disclosed 

before trial, and defense counsel cross-examined each one who testified. See State 
January Term, 2016 

15 

v. Hernandez-Martinez, 12th Dist. Butler No. CA2011-04-068, 2012-Ohio-3754, 

¶ 22. 

{¶ 60} Alternatively, McKelton claims that the late disclosure violated his 

right to due process and a fair trial. The Due Process Clause of the Fourteenth 

Amendment to the U.S. Constitution prohibits prosecutors from concealing 

evidence favorable to a defendant, but “[t]here is no general constitutional right to 

discovery in a criminal case.” Weatherford v. Bursey, 429 U.S. 545, 559, 97 S.Ct. 

837, 51 L.Ed.2d 30 (1977). Prosecutors are not constitutionally required to “reveal 

before trial the names of all witnesses who will testify unfavorably.” Id. Instead, 

“a trial court has broad discretion to postpone disclosure of a prospective witness’s 

identity in order to protect his or her safety.” Alvarado v. Superior Court, 23 

Cal.4th 1121, 1150, 99 Cal.Rptr.2d 149, 5 P.3d 203 (Cal.2000). Here, the trial court 

did just that. Therefore, McKelton cannot demonstrate a violation of his right to 

due process or a fair trial. 

{¶ 61} Finally, McKelton alleges that the delayed disclosure denied him his 

right to effective assistance of counsel because it deprived his attorneys of an 

adequate opportunity to investigate and prepare his defense. To prevail on this 

claim, he must show both that the nondisclosure caused counsel’s performance to 

be deficient and that he suffered prejudice. Strickland v. Washington, 466 U.S. 668, 

688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). For reasons explained in 

response to the 1st, 15th, and 16th, propositions of law, McKelton has not met his 

burden. 

{¶ 62} For these reasons, we reject proposition of law No. 2. 

2. Withdrawal of Counsel and Continuances: Proposition of Law No. 1 

{¶ 63} In his first proposition of law, McKelton argues that the trial court 

erred by denying his court-appointed counsel’s request to withdraw from 

representation and his corresponding motion to remove those counsel. He claims 

that the error in refusing counsel’s request to withdraw “was compounded by the 
SUPREME COURT OF OHIO

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trial court’s failure to grant repeated requests for a continuance” and argues that 

these errors violated his right to due process, a fair trial, and effective assistance of 

counsel. 

a. Withdrawal of counsel 

{¶ 64} McKelton claims that the trial court should have removed John Gregory 

Howard and Melynda Cook, his two court-appointed attorneys, as counsel. 

(1) Factual background 

{¶ 65} Initially, McKelton retained attorney Richard Goldberg. At 

McKelton’s arraignment in February 2010, Goldberg informed the court that he 

lacked experience trying capital cases. He also explained that McKelton had 

become indigent and asked the court to appoint counsel under former Sup.R. 20, 

105 Ohio St.3d CXLV.1 Goldberg also sought “permission to stay on” as counsel, 

if the state did not object. The trial judge appointed Howard as lead counsel and 

Cook as co-counsel because he was unsure “what the status of [Goldberg’s] 

participation” would be. 

{¶ 66} On September 14, 2010, Goldberg, Howard, and Cook moved for 

leave to withdraw, for the appointment of new counsel, and for a continuance so 

new counsel could prepare for trial. Two days later, McKelton filed a handwritten 

motion asking the “court to remove all counsel because of irreconcilable 

differences, lawyer misconduct, conflict of interest, misrepresentation, personal 

conflict and a complete lack of communication.” 

{¶ 67} Goldberg was permitted to withdraw because of a conflict of interest. 

But Cook and Howard cited only “a breakdown in the attorney client relationship” 

 

1

 McKelton claims that the trial court violated former Sup.R. 20, 105 Ohio St.3d CXLV, by 

appointing two lawyers even though he had retained Goldberg. But counsel were appointed at 

Goldberg’s request, and McKelton cannot take advantage of an error that he invited. State v. 

Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 10. Moreover, McKelton 

arguably benefited: the two certified capital attorneys supplemented the efforts of Goldberg, who 

lacked capital-defense experience. 
January Term, 2016 

17 

as the basis for their request. Howard explained that McKelton did not trust his 

appointed counsel and would no longer cooperate in preparing his defense. 

{¶ 68} McKelton told the trial judge that counsel had tried to pressure him 

into accepting a plea bargain. He claimed that his attorneys and the prosecutor had 

“conspired” to “coerce” him to accept a plea offer and that Cook was “outraged”—

even making a racist comment—when he refused. McKelton also said that Howard 

and Cook had failed to effectively communicate with him, adequately prepare for 

trial, use his money well, or hire the necessary defense experts. 

{¶ 69} The trial judge denied Howard and Cook’s motion to withdraw, 

finding that they were competent and had prepared the case “diligently.” The judge 

reasoned that communication had broken down due to McKelton’s rejection of 

counsel’s legal advice and refusal to cooperate. 

(2) Analysis 

{¶ 70} We review a lower court’s decisions about whether to discharge and 

replace court-appointed counsel for an abuse of discretion. State v. Williams, 99 Ohio 

St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 135. A defendant may establish good 

cause to substitute new counsel by demonstrating “a ‘complete breakdown in 

communication’ between the defendant and appointed counsel.” State v. Cowans, 87 

Ohio St.3d 68, 73, 717 N.E.2d 298 (1999), quoting United States v. Calabro, 467 

F.2d 973, 986 (2d Cir.1972). 

{¶ 71} McKelton suggests several reasons why the trial court erred by not 

dismissing Howard and Cook. First, he claims that the attorney-client relationship 

completely broke down when counsel encouraged him to accept a plea bargain. But 

disagreements—such as disagreement over the merits of a plea offer—“ ‘between 

the attorney and client over trial tactics or approach * * * do not warrant a 

substitution of counsel.’ ” State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 

855 N.E.2d 48, ¶ 150, quoting State v. Evans, 153 Ohio App.3d 226, 2003-Ohio3475, 792 N.E.2d 757, ¶ 32 (7th Dist.). To the contrary, counsel “ ‘has a duty to 
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be candid’ ” and “ ‘to give the accused an honest appraisal of his case.’ ” Id. at 

¶ 151, quoting Brown v. United States, 264 F.2d 363, 369 (D.C.Cir.1959). Here, 

defense counsel apparently gave McKelton their honest appraisal of his case, which 

does not prove bias or conspiracy. 

{¶ 72} McKelton also claims that he lacked confidence in Howard and 

Cook because they failed to establish a relationship of trust, met with him only 

twice, and did not consult with him about the state’s evidence. But the record 

suggests that he met with Goldberg more regularly. The fact that he may have had 

fewer personal interactions with Howard or Cook in the months preceding 

Goldberg’s withdrawal does not justify the removal of court-appointed counsel 

simply because Goldberg later withdrew. 

{¶ 73} Next, McKelton objects that Howard and Cook failed to hire the 

necessary experts to prepare his defense. The trial court approved funding for “an 

investigator and mitigation specialist, a mental health professional, if * * * 

appropriate, and a forensic expert, if * * * appropriate.” Counsel apparently hired 

only an investigator. But that does not necessarily prove that counsel were 

unprepared. Until a few weeks before trial, McKelton was represented by three 

attorneys. And his investigator worked more than 100 hours on the case. Defense 

counsel’s decision to hire additional experts was a matter of trial strategy, and 

McKelton cannot establish that the strategy was unreasonable on this record. See 

State v. Keyes, 6th Dist. Erie No. E-08-072, 2009-Ohio-6343, ¶ 28. 

{¶ 74} Finally, McKelton says counsel should have been permitted to 

withdraw because they were afraid of him. But counsel’s only expression of 

concern occurred during the hearing on the motion to withdraw, and only in 

response to the prosecutor’s reference to threats made by McKelton. The 

prosecutor promptly clarified that McKelton had not threatened his counsel. Thus, 

fear did not require the substitution of counsel in this case. 

{¶ 75} The trial court reasonably declined to discharge Howard and Cook. 
January Term, 2016 

19 

b. Continuances 

{¶ 76} McKelton argues that the trial court’s denial of his continuance 

requests violated his constitutional rights and prejudiced his defense. To the extent 

that McKelton’s argument implicates his constitutional right to the effective 

assistance of counsel, McKelton must meet the Strickland test, showing both that 

counsel’s performance was deficient and that he suffered prejudice. 

{¶ 77} First, McKelton says that the court should have granted a 

continuance on September 17, 2010, when Goldberg withdrew. The defense’s 

continuance motion was predicated on the appointment of new defense counsel, who 

would need additional time to prepare for trial. A continuance was unnecessary 

because Howard and Cook remained as defense counsel and they had “known for 

a significant amount of time” that Goldberg was likely to withdraw. Two months 

before trial, defense counsel indicated that Richard Goldberg’s representation of 

McKelton might create a conflict of interest. The judge had previously warned 

Howard and Cook that they would need to be ready to go to trial without Goldberg 

and, on September 17, he found that they were prepared to do so. Neither Howard 

nor Cook indicated that they needed additional time to prepare as a result of 

Goldberg’s withdrawal. McKelton does not explain how any deficient performance 

resulted from Goldberg’s withdrawal, undermining any claim under Strickland. 

Accordingly, we find no error in the trial court’s denial of the continuance request on 

September 17. 

{¶ 78} Second, McKelton says that the trial court should have granted a 

continuance to allow the defense to investigate and prepare to cross-examine the 

eight state witnesses who were disclosed shortly before trial began. The authors of 

Crim.R.16 made clear that routine continuances to allow further defense 

investigation of nondisclosed witnesses would destroy “the protective purpose of 

[the nondisclosure] process.” 2010 Staff Notes, Crim.R. 16(F). For this reason, 
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the “[Rules] Commission anticipated that continuances of trial dates would occur 

only in limited circumstances.” Id. 

{¶ 79} McKelton generally asserts that more time would have aided his 

defense, but he does not explain why this case qualifies as one of those limited 

circumstances. The record does not indicate that defense counsel were unprepared 

for cross-examination; they cross-examined each of the late-disclosed witnesses 

who testified at trial and even used some statements—as provided by the state—to 

impeach them. And McKelton offers no indication of what information further 

investigation would have yielded or how counsel would have used that information. 

See State v. Keith, 79 Ohio St.3d 514, 536-537, 684 N.E.2d 47 (1997) (claims that 

require evidence outside the record are not appropriately considered on direct 

appeal). 

{¶ 80} Thus, McKelton has failed to establish an abuse of discretion or a 

violation of his constitutional rights. 

{¶ 81} For these reasons, we reject proposition of law No. 1. 

3. Voir Dire: Proposition of Law No. 3 

{¶ 82} In his proposition of law No. 3, McKelton argues that the trial court 

violated his right to an impartial jury by denying his motion for individual, 

sequestered voir dire. He further claims that defense counsel did not have sufficient 

opportunity to question the venire. 

{¶ 83} “The manner in which voir dire is to be conducted lies within the 

sound discretion of the trial judge.” State v. Lorraine, 66 Ohio St.3d 414, 418, 613 

N.E.2d 212 (1993). However, because an adequate voir dire is “part of the 

guarantee of a defendant’s right to an impartial jury,” Morgan v. Illinois, 504 U.S. 

719, 729, 112 S.Ct. 2222, 119, L.Ed.2d 492 (1992), that discretion is “ ‘subject to 

the essential demands of fairness,’ ” id. at 730, quoting Aldridge v. United States, 

283 U.S. 308, 310, 51 S.Ct. 470, 75 L.Ed. 1054 (1931). 

 
January Term, 2016 

21 

a. Group voir dire 

{¶ 84} “There is no requirement that voir dire in a capital case must be 

conducted in sequestration.” State v. Fears, 86 Ohio St.3d 329, 338, 715 N.E.2d 

136 (1999). In State v. Leonard, 104 Ohio St.3d 54, 2004-Ohio-6235, 818 N.E.2d 

229, we held that a trial court did not err by denying a request for sequestered voir 

dire when the court “permit[ted] counsel to individually question prospective 

jurors” and also “gave all jurors the opportunity to be questioned in private if they 

were uncomfortable discussing their views in a group setting.” Id. at ¶ 66. 

{¶ 85} The trial court voir dired McKelton’s prospective jurors in a group. 

But as in Leonard, the judge anticipated that the prospective jurors might not be 

comfortable answering every question in front of the entire group. At the outset of 

voir dire, he advised, “[I]f at any point during this process you wish to answer a 

question privately, you may do so.” He reiterated this point just before allowing 

counsel to individually question the prospective jurors. Under these circumstances, 

we see nothing inherently unfair about the manner in which the trial court 

conducted voir dire. 

{¶ 86} McKelton nevertheless claims that group voir dire was prejudicial 

because “[t]he entire venire was made aware of pretrial publicity.” The trial judge 

asked whether “anybody here [] knows anything about this based upon publicity of 

the case.” Five prospective jurors responded affirmatively, and three indicated some 

doubt about McKelton’s innocence based on press coverage. The prosecutor 

explained to the venire that news reports are not evidence and that they are not 

always accurate. And no juror responded when these jurors were asked if they 

could not set aside anything they had read. In fact, defense counsel even described 

an error in a recent news account. 

{¶ 87} McKelton argues that this line of questioning tainted the entire venire 

by informing every potential juror that some press coverage had implied his guilt. 

But an entire venire is not necessarily prejudiced due to “the effect of being 
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22 

influenced by the opinions expressed by prior veniremen.” State v. Carter, 72 Ohio 

St.3d 545, 555, 651 N.E.2d 965 (1995). We decline to presume that McKelton’s 

entire jury pool was tainted simply because the prospective jurors learned that 

negative publicity existed. In addition, McKelton does not point to any evidence 

that the venire was actually prejudiced by the voir dire on publicity. Under these 

circumstances, there is no indication that any of the seated jurors were biased 

against McKelton. 

{¶ 88} McKelton also objects to the prosecutor’s questions about domestic 

violence during group voir dire. McKelton did not object to the prosecutor’s 

questions, but he now says that they unfairly influenced the entire venire. In light 

of the pending domestic-violence charges, it was reasonable for the prosecutor to 

inquire about the prospective jurors’ “history * * * with acts of domestic violence as 

a means of determining their ability to give fair consideration to the issues that would 

arise at trial.” State v. Collymore, 8th Dist. Cuyahoga No. 81594, 2003-Ohio-3328, 

¶ 65. We will not presume that an entire venire is prejudiced simply because the 

prospective jurors were exposed to the opinions of other veniremen. Carter at 555. 

And the record does not indicate that the discussion of domestic violence actually 

biased any of the jurors. 

{¶ 89} For these reasons, we reject McKelton’s argument that the trial court 

erred by denying his motion for individual voir dire. 

b. Insufficient opportunity for voir dire 

{¶ 90} McKelton also argues that defense counsel did not have a sufficient 

opportunity to ensure the jurors’ impartiality. 

{¶ 91} First, he says that the jury questionnaire was inadequate. At a 

pretrial hearing, defense counsel requested a 12-page jury questionnaire, and the 

state requested its usual 2-page questionnaire. The trial judge agreed to produce a 

questionnaire “in between” the parties’ proposals. In the end, the jury 

questionnaires did not address attitudes toward the death penalty. 
January Term, 2016 

23 

{¶ 92} Trial courts have discretion to determine the content of jury 

questionnaires. See State v. Davie, 80 Ohio St.3d 311, 317, 686 N.E.2d 245 (1997). 

Here, McKelton cannot show that the trial court’s decision to use its own 

questionnaire was unreasonable, arbitrary, or unconscionable. Moreover, 

McKelton has failed to establish that he was prejudiced by the omission of 

questions about attitudes toward the death penalty. He does not assert that any 

seated juror was predisposed to order a sentence of death. 

{¶ 93} Second, McKelton claims his counsel did not have enough time to 

conduct voir dire. During a pretrial hearing, defense counsel warned that it might 

take two days to select a jury. The judge responded, “It will take whatever life and 

time it takes.” On the morning that voir dire began, the trial judge told the venire, 

“[W]e believe we’ll have a jury selected by the close of business today.” Midafternoon, defense counsel thanked the prospective jurors and explained, “I know 

it’s getting late, and I’m going to try to wrap this up, but I have a couple of other 

things that I want to talk about * * *.” Later, after defense counsel asked his final 

question, he took a moment to review his notes, then thanked the judge and jurors 

for their patience. Defense counsel did not request more time, indicate that he felt 

rushed, or state a desire to ask additional questions. We see no reason to conclude 

that voir dire was unduly truncated. 

{¶ 94} McKelton’s third proposition of law is not well taken. 

B. Evidentiary Issues 

1. Forfeiture by Wrongdoing: Proposition of Law No. 4 

{¶ 95} In proposition of law No. 4, McKelton argues that the trial court 

erred by admitting various hearsay statements by Missy Allen under the doctrine of 

forfeiture by wrongdoing. According to McKelton, this alleged error violated his 

rights to confrontation and due process. 

{¶ 96} Forfeiture by wrongdoing has long been recognized as an equitable 

exception to a defendant’s constitutional right to confront the witnesses against 
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24 

him. See Giles v. California, 554 U.S. 353, 366, 128 S.Ct. 2678, 171 L.Ed.2d 488 

(2008); Reynolds v. United States, 98 U.S. 145, 158, 25 L.Ed.2d 244 (1878). Ohio 

codified this doctrine in 2001 as a hearsay exception under Evid.R. 804(B)(6). To 

admit statements under this exception, a prosecutor must show by a preponderance 

of the evidence that (1) the defendant engaged in wrongdoing that caused the 

witness to be unavailable and (2) one purpose for the wrongdoing was to make the 

witness unavailable to testify. See State v. Fry, 125 Ohio St.3d 163, 2010-Ohio1017, 926 N.E.2d 1239, ¶ 106; State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18, 

840 N.E.2d 151, ¶ 84. 

{¶ 97} Ordinarily, we review a trial court’s hearsay rulings for an abuse of 

discretion. State v. Hymore, 9 Ohio St.2d 122, 128, 224 N.E.2d 126 (1967). 

However, we review de novo evidentiary rulings that implicate the Confrontation 

Clause. United States v. Henderson, 626 F.3d 326, 333 (6th Cir.2010). 

a. Factual background 

{¶ 98} The prosecution filed notice of its intent to offer Allen’s statements 

under Evid.R. 804(B)(6) in August 2010, but the trial court did not address the 

forfeiture question until the trial in October. 

{¶ 99} Defense objected when the prosecutor asked his third witness, 

Sherrie Bluester, the children services’ screener, what Allen had said about her 

broken ankle. The prosecutor argued that Allen’s statements were admissible under 

the forfeiture doctrine because he had established (1) Allen’s unavailability and (2) 

that McKelton had acted with the purpose when he made her unavailable. The trial 

judge overruled McKelton’s objection. The judge explained, “[T]he allegation in 

this case is that this defendant murdered the victim, Ms. Allen, and I think this is 

exactly what the forfeiture by wrongdoing exception is.” The defense noted a 

continuing objection on this basis. 

{¶ 100} The next day, the court invited the parties to more fully articulate 

their positions on forfeiture by wrongdoing. Defense counsel objected that the trial 
January Term, 2016 

25 

court had not found that McKelton had made Allen unavailable with the purpose

of preventing her appearance at a trial. But the prosecutor argued that it was proper 

to infer McKelton’s purpose from his history of domestic violence against Allen. 

He cited Z.D.’s and T.W.’s “testimony about the pattern of abuse” and “the multiple 

incidents” that they had witnessed. He also noted T.W.’s testimony that McKelton 

had once snatched the phone from her after Allen had asked her to call the police. 

The state contended that this evidence showed, by a preponderance of the evidence, 

“that this relationship was in a dynamic of domestic violence, of a pattern of abuse 

designed to isolate her and keep her from reporting to outside help.” 

{¶ 101} Referring to his ruling from the previous day, the trial judge found 

that the state had met its burden, given “the totality of the evidence in this particular 

case.” The judge stressed that the defense could still object to Allen’s statements 

on other grounds. 

b. Admissibility under the Confrontation Clause 

{¶ 102} McKelton claims that his confrontation rights were violated by the 

admission of dozens of Allen’s statements through the testimony of her nieces, her 

friends, a physical therapist, a children’s services screener, and a police officer.2

 

He says that these statements were not admissible under the forfeiture-bywrongdoing exception because the state did not establish that he had killed Allen 

with the purpose of preventing her from testifying against him. 

{¶ 103} The United States Supreme Court has analyzed the forfeiture 

doctrine’s common-law roots and concluded that it “applie[s] only when the 

defendant engaged in conduct designed to prevent the witness from testifying” 

 

2

 To the extent McKelton objects to the admission of nontestimonial hearsay, he was not entitled to 

confront the declarants. See Davis v. Washington, 547 U.S. 813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 

224 (2006). For example, he discusses Allen’s statements to friends and relatives. But an 

unavailable witness’s “[s]tatements to friends and neighbors about abuse and intimidation” do not 

implicate the confrontation clause. Giles v. California, 554 U.S. 353, 376, 128 S.Ct. 2678, 171 

L.Ed.2d 488 (2008). 
SUPREME COURT OF OHIO

26 

about an earlier offense. (Emphasis sic.) Giles, 554 U.S. at 359, 128 S.Ct. 2678, 

171 L.E.2d 488. Accordingly, “unconfronted testimony [will] not be admitted 

without a showing that the defendant intended to prevent [the] witness from 

testifying.” (Emphasis sic.) Id. at 361. Giles does not require that this be a 

defendant’s “sole or even primary purpose,” however; it is sufficient if one purpose 

for the defendant’s conduct was to make the victim unavailable, State v. 

Supanchick, 323 P.3d 231, 239 (Ore.2014); see also Hand, 107 Ohio St.3d 378, 

2006-Ohio-18, 840 N.E.2d 151, at ¶ 90 (interpreting Evid.R. 804(B)(6)). 

(1) Accident and purpose 

{¶ 104} McKelton argues that the notion of “purpose” in forfeiture analysis 

is inconsistent with both the charges against him and the state’s theory of Allen’s 

murder. 

{¶ 105} Because the state charged McKelton with the felony murder of 

Allen, R.C. 2903.02(B), predicated on an underlying offense of felonious assault, 

R.C. 2903.11(A)(1), the state had to prove only that he acted knowingly in 

committing the felonious assault, not purposely in killing Allen. See Fry, 125 Ohio 

St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, at ¶ 43 (felony murder requires proof 

of “the mens rea element set forth in the underlying felony offense”). 

{¶ 106} But mere knowledge does not satisfy the purpose prong of the 

forfeiture doctrine. Giles makes clear that the exception will not apply “in the 

typical murder case involving accusatorial statements by the victim” when the 

defendant has “caused a person to be absent” but did “not do[] so to prevent the 

person from testifying.” 554 U.S. at 361, 128 S.Ct. 2678, 171 L.Ed.2d 488. 

Instead, it applies in a murder case only if the state proves that a defendant murdered 

the victim with the purpose of preventing the victim’s testimony about a separate 

offense. 

{¶ 107} The record does not indicate that McKelton had planned to kill 

Allen on July 28, 2008, let alone to do so for a particular reason. Indeed, the state’s 
January Term, 2016 

27 

theory was that Allen’s murder “was spontaneous” and “wasn’t planned.” 

Witnesses testified that McKelton killed Allen during an argument and tried to 

revive her. Thus, the immediate circumstances of Allen’s death do not establish 

the requisite purpose that would allow the admission of testimonial statements 

because of forfeiture by wrongdoing. 

(2) Domestic violence and purpose 

{¶ 108} The immediate-circumstances analysis does not end the inquiry, 

however, because, as the state argues, the broader circumstances—the history of 

domestic violence between McKelton and Allen—support an inference of purpose 

in this case. 

{¶ 109} In Giles, the Supreme Court expressly “left open the possibility that 

a defendant’s intention to prevent testimony might be inferred from the surrounding 

circumstances, such as in a case of ongoing domestic violence.” Crawford v. 

Commonwealth, 686 S.E.2d 557, 564 (Va.App.2009), aff’d 704 S.E.2d 107 

(Va.2011). 

{¶ 110} The court explained that “[a]cts of domestic violence” are relevant 

to the purpose inquiry because they “often are intended to dissuade a victim from 

resorting to outside help, and include conduct designed to prevent testimony to 

police officers or cooperation in criminal prosecutions.” Giles, 554 U.S. at 377, 

128 S.Ct. 2678, 171 L.Ed.2d 488. When an abusive relationship ends in murder, 

“the evidence may support a finding that the crime expressed the intent to isolate 

the victim and to stop her from reporting abuse to the authorities or cooperating 

with a criminal prosecution—rendering her prior statements admissible under the 

forfeiture doctrine.” Id. Hence, in deciding whether the forfeiture exception 

applies, courts should regard as “highly relevant” any evidence of past abuse (or 

threats) designed to discourage a victim from seeking outside help, as well as 

evidence of ongoing criminal proceedings where the victim was expected to testify. 

Id. 
SUPREME COURT OF OHIO

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{¶ 111} Evidence of domestic violence is “highly relevant” to analyzing the 

purpose prong of the forfeiture exception. Giles at 377; see also, e.g., State v. 

McLaughlin, 265 S.W.3d 257, 272 (Mo.2008); People v. Banos, 178 Cal.App.4th 

483, 491-492, 100 Cal.Rptr.3d 476 (2009). 

{¶ 112} McKelton argues that there is insufficient evidence of domestic 

violence in this case. The record does not indicate that Allen ever reported domestic 

abuse to police or that she was expected to testify against McKelton in a pending 

criminal proceeding when she died. Cf. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 

926 N.E.2d 1239, at ¶ 108-109; McLaughlin at 272. 

{¶ 113} Even so, purpose can be inferred from the evidence in this case. 

Allen’s nieces, who lived with McKelton and Allen, both testified about 

McKelton’s abuse of Allen. And T.W. specifically testified that McKelton took the 

phone away from her when Allen asked her to call 9-1-1. When Z.D. did call 9-1-

1 on the night that Allen broke her ankle, McKelton was enraged. Thus, although 

Allen had not formally contacted police, her nieces’ testimony indicates that 

McKelton was trying to isolate Allen and prevent her from talking to authorities. 

{¶ 114} For these reasons, the admission of Allen’s statements did not 

violate Giles’s purpose requirement and we reject proposition of law No. 4. 

2. Impeachment of Gerald Wilson: Proposition of Law No. 6 

{¶ 115} In proposition of law No. 6, McKelton argues that the trial court 

erred by permitting the state to impeach its own witness, Gerald Wilson, with his 

prior inconsistent statement and by admitting extrinsic evidence of that prior 

statement. McKelton also argues that the prosecutor improperly relied on Wilson’s 

prior statement as substantive evidence of his guilt. 

a. Factual background 

{¶ 116} Wilson gave a police statement in January 2009 in which he said 

that he had heard McKelton admit to choking Allen. McKelton also threatened that 

if Wilson said anything, he would “end up like Mick did.” 
January Term, 2016 

29 

{¶ 117} When the state called Wilson to testify, he denied or claimed not to 

recall having made the statements. When pressed, he broadly asserted that he did not 

know anything about the matter. Finally, he admitted that he had spoken to police, 

but then claimed that police had falsified the transcript of his statement. He insisted 

that he had been lying and that police were telling everyone to lie about McKelton. 

Over defense objection, the state played an audio recording of Wilson’s police 

interview. 

{¶ 118} After Wilson left the stand, the prosecutor asserted that he had been 

“shocked and surprised” by his recantation. The prosecutor stated that he had 

personally interviewed Wilson and that his representations had been consistent with 

his police statement. The trial judge found that “there were surprises and 

affirmative damage,” which allowed the state to impeach Wilson under Evid.R. 

607. The next day, the state sought to admit Wilson’s statement as an exhibit. The 

trial court sustained a defense objection. 

b. Application of Evid.R. 607(A) 

{¶ 119} Evid.R. 607(A) authorizes a party to impeach its own witness “by 

means of a prior inconsistent statement only upon a showing of surprise and 

affirmative damage.” We review a trial court’s application of this rule for an abuse 

of discretion. Davie, 80 Ohio St.3d at 323, 686 N.E.2d 245. 

{¶ 120} “Surprise” occurs when a witness’s testimony materially differs 

from a prior statement and counsel had no reason to believe that the witness would 

testify as he did at trial. See id.; Ferguson Realtors v. Butts, 37 Ohio App.3d 30, 

33, 523 N.E.2d 534 (12th Dist.1987); State v. Blair, 34 Ohio App.3d 6, 9, 516 

N.E.2d 240 (8th Dist.1986). Here, the prosecutor said he was “shocked and 

surprised” when Wilson’s trial testimony materially differed from his statement to 

police. Under these circumstances, the trial court reasonably found that the state 

was surprised by the witness’s testimony. 
SUPREME COURT OF OHIO

30 

{¶ 121} The “affirmative damage” requirement is satisfied if a “party’s own 

witness testifies to facts that contradict, deny, or harm that party’s trial position.” 

Blair at 9; see also Ferguson Realtors at 33. Wilson said that police had asked 

him—and other witnesses—to lie. This potentially undermined the testimony of 

several crucial state witnesses who had testified that they had heard McKelton 

confess to one or both murders. Given that the prosecutor did not have any 

eyewitnesses, the trial court reasonably found that Wilson’s testimony affirmatively 

damaged the state’s case. 

{¶ 122} McKelton also objects that the state did not establish surprise and 

affirmative damage before impeaching Wilson. The defense did not object to the 

state’s examination of Wilson until the state announced that it would like to play a 

recording of his January statement. At that time, the trial court invoked Evid.R. 

607(A) to overrule the defense objection and allowed the state to play the recording. 

On this record, we hold that the requirements of Evid.R. 607 were satisfied. 

{¶ 123} Furthermore, McKelton cannot demonstrate any plain error in the 

state’s questioning of Wilson before the defense objected at trial. See State v. 

Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002). The state’s questions laid 

the necessary foundation for introducing extrinsic evidence of Wilson’s prior 

statement under Evid.R. 613. And these questions did not alter the outcome of 

McKelton’s trial. 

{¶ 124} In short, the trial court did not abuse its discretion by allowing the 

prosecutor to impeach Wilson with his prior inconsistent statement. 

c. Extrinsic evidence of Wilson’s prior statement 

{¶ 125} McKelton also claims that by permitting the state to play an audio 

recording of Wilson’s prior statement, the trial court contravened State v. Ballew, 

76 Ohio St.3d 244, 667 N.E.2d 369 (1996), which prohibits reading a witness’s prior 

statement to the jury. But Ballew involved only the reading of a prior statement to 

refresh a witness’s recollection under Evid.R. 612. Id. at 254. By contrast, Evid.R. 
January Term, 2016 

31 

613 specifically contemplates the admission of extrinsic evidence of a prior 

statement under the circumstances outlined in Evid.R. 613(B). Ohio courts have 

regularly applied the rule to admit a witness’s prior inconsistent statement for 

impeachment purposes. See, e.g., State v. Fisher, 8th Dist. Cuyahoga No. 83098, 

2004-Ohio-3123, ¶ 14; State v. Schaffer, 114 Ohio App.3d 97, 102, 682 N.E.2d 

1040 (3d Dist.1996). 

{¶ 126} McKelton does not dispute that the state satisfied the requirements 

of Evid.R. 613. The state laid the proper foundation before playing the recording, 

and the contents of Wilson’s statement went to a fact of consequence to the action: 

his testimony presented a conflict with his prior statement about whether McKelton 

had confessed or police were manufacturing a case against him. Thus, the trial 

court did not abuse its discretion by permitting the state to play the recording for 

the jury. 

d. Wilson’s statement as evidence of McKelton’s guilt 

{¶ 127} Finally, McKelton argues that the state improperly relied on 

Wilson’s prior statement as substantive evidence of McKelton’s guilt. As a result, 

he asserts that there is a “grave risk” that he was convicted based on unsworn 

testimony, in violation of the Fifth, Sixth, and Fourteenth Amendments. 

{¶ 128} As a general rule, “prior inconsistent statements constitute hearsay 

evidence and thus are admissible only for the purpose of impeachment.” 1 Gianelli, 

Evidence, Section 607.4, at 482-483 (3d Ed.2010); see also id., Section 613.3, at 

591. Accordingly, unless another hearsay exception applies, a party may not 

interrogate his own witness about a prior inconsistent statement “ ‘for the purpose 

of offering substantive evidence against the accused.’ ” State v. Dick, 27 Ohio St.2d 

162, 165, 271 N.E.2d 797 (1971), quoting State v. Duffy, 134 Ohio St. 16, 15 N.E.2d 

535 (1938), paragraph two of the syllabus. Further, the prosecutor must not refer 

to such statements for their truth during closing argument. State v. Richcreek, 196 
SUPREME COURT OF OHIO

32 

Ohio App.3d 505, 2011-Ohio-4686, 964 N.E.2d 442, ¶ 54 (6th Dist.), quoting State 

v. Kirk, 6th Dist. Huron No. H-09-006, 2010-Ohio-2006, ¶ 28. 

{¶ 129} During closing argument, the prosecutor did cite Wilson’s prior 

inconsistent statement as substantive evidence of McKelton’s guilt. But because 

McKelton did not request a limiting instruction or otherwise object, plain-error 

review applies. State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 565, 

¶ 91. 

{¶ 130} Given the state’s reliance on Wilson’s prior statement as 

substantive evidence and the lack of a limiting instruction, the jury may have 

considered the unsworn testimony in support of its conviction of McKelton. But 

the error was not outcome-determinative, because Wilson was not the only person 

to hear McKelton confess to the murder of Allen or Evans. Sheridan Evans, Marcus 

Sneed, and Charles Bryant all testified that he had implicated himself in Allen’s 

death. And Sneed, Bryant, and Lemuel Johnson all testified that McKelton 

implicated himself in Evans’s death. 

{¶ 131} For these reasons, we reject proposition of law No. 6. 

3. Testimony of Crystal Evans: Proposition of Law Nos. 10 and 11 

{¶ 132} The prosecutor questioned Crystal about her March 2, 2009 police 

statement and about some of her phone calls and correspondence with McKelton 

during the months before trial. The trial court admitted a complete transcript of the 

police interview, recordings of the phone calls, and the letters into evidence. In 

proposition of law No. 10, McKelton argues that this violated his right to a fair trial, 

due process, a reliable determination of guilt, and a reliable sentence. He also 

contends, in proposition of law No. 11, that it was improper to admit statements 

that had been made by detectives during the interview. 

{¶ 133} McKelton did not request limiting instructions or object at trial, so 

plain-error review applies. See Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240. 

 
January Term, 2016 

33 

a. Impeachment of Crystal 

{¶ 134} McKelton argues that it was improper to rely on Crystal’s prior 

statement to impeach her testimony on direct examination. The state counters that 

its use was proper to demonstrate McKelton’s “prior planning to escape criminal 

liability for Germaine Evans’s death.” 

{¶ 135} Prosecutors may elicit testimony on direct examination that the 

defendant asked a witness “to fabricate an alibi for him,” Commonwealth v. Young, 

561 Pa. 34, 61-62, 748 A.2d 166 (2000), because such evidence “strongly indicates 

consciousness of guilt.” State v. Campbell, 69 Ohio St.3d 38, 47, 630 N.E.2d 339 

(1994). Although the state did not elicit such testimony here, it did have a 

reasonable basis for probing Crystal to determine whether her inconsistencies were 

a product of McKelton’s coaching; a letter and a jailhouse phone call suggested that 

he had coached her about an alibi. And because Crystal provided McKelton’s alibi, 

the state was entitled to question her about the timing of McKelton’s and her own 

movements on February 27, 2009. 

b. Extrinsic evidence of Crystal’s statements to police 

{¶ 136} McKelton also argues that there was no evidentiary basis for the 

trial court to admit extrinsic evidence of Crystal’s March statements to police. 

{¶ 137} Crystal’s prior out-of-court statement would generally be 

inadmissible for the truth of the matter asserted. Evid.R. 801(C) and 802. The state 

contends that her statements are nonhearsay because they indicate consciousness of 

guilt by confirming that McKelton encouraged her to provide a false alibi. But 

nothing in Crystal’s statements, or in her responses to inquiries about them at trial, 

indicates that McKelton had asked her to lie. Therefore, the state has not identified 

a legitimate nonhearsay purpose. 

{¶ 138} The state has not identified any other hearsay exemption or 

exception that would apply to Crystal’s statements. They were not admissible as 

prior inconsistent statements under Evid.R. 607(A), so extrinsic evidence of them 
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34 

does not fall under Evid.R. 613(B). And although the state used Crystal’s earlier 

statements to refresh her recollection, that entitled the defense—not the state—to 

admit the transcript of her statements. See Evid.R. 612. As a result, the trial court 

erred by admitting Crystal’s statements.3

{¶ 139} Even so, McKelton cannot establish that but for this error, the 

outcome of the trial “clearly would have been otherwise.” State v. Mammone, 139 

Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 69. Ultimately, McKelton’s 

whereabouts on the night of Evans’s murder were not crucial because the state 

advanced the theory throughout the trial that he had enlisted someone else to kill 

Evans. Indeed, in his own brief, McKelton concedes that “[w]hether [he] was at 

[Crystal’s] apartment on the night of Germaine’s death is insignificant.” Thus, the 

error did not affect McKelton’s substantial rights. See Crim.R. 52(B). 

c. Police statements during Crystal’s interview 

{¶ 140} McKelton also objects to the admission of the transcript of 

Crystal’s police interview because it included inadmissible hearsay statements 

made by Detectives Luke and Witherell. During the interview, the detectives told 

Crystal that McKelton had abused Allen, severely beat the mothers of his daughters, 

and abused other women. They also indicated that they had evidence that Evans 

was in a car with McKelton around 9:00 p.m. on the night he died. And they tried 

to undermine Crystal’s claim that McKelton had been with her the entire night of 

Evans’s murder, stating that Crystal had told her mother otherwise. 

{¶ 141} The state argues that these statements were admissible because they 

were “actually questions, designed to elicit a response from Crystal Evans.” But 

here the detectives’ “questions” incorporated numerous assertions about McKelton. 

And the state does not argue that they were admissible solely for a nonhearsay 

purpose, such as providing context for Crystal’s responses. Cf. State v. Keene, 9th 

 

3

 In light of this conclusion, we need not separately analyze McKelton’s claim that this evidence 

violated Evid.R. 403. 
January Term, 2016 

35 

Dist. Lorain No. 06CA8880, 2006-Ohio-6676, ¶ 24 (holding that “the State did not 

introduce the questions posed by the officer for the truth contained in those 

statements” when the state had “asserted that the statements were necessarily 

included to give context to the answers given by appellant”). 

{¶ 142} Because the transcript “was admitted for all purposes, including the 

truth of the matter stated, the detective[s’] statements were also hearsay.” Lampkins 

v. State, 778 N.E.2d 1248, 1251-1252 (Ind.2002). The jurors had no way to know 

that the “statements were not evidence” or that the officers’ representations to 

Crystal may not have been entirely truthful. Id. at 1252; see also State v. Craycraft, 

147 Ohio Misc.2d 5, 2008-Ohio-2192, 889 N.E.2d 1110, ¶ 22 (Clermont C.P.). “It 

[was] error to admit statements by an interrogating officer without any limiting 

instruction or admonishment.” Lampkins at 1252.4

 

{¶ 143} Even so, McKelton cannot establish that the error affected his 

substantial rights. The jury heard independent evidence of the detectives’ assertions 

at trial, with the exception of Luke’s statement that McKelton had abused other 

women. And even that statement was not outcome-determinative in light of the 

ample additional evidence supporting McKelton’s convictions. 

d. Admission of recordings and letters 

{¶ 144} McKelton also claims that the trial court violated Evid.R. 403 by 

admitting recordings of his jailhouse phone calls with Crystal and his letters to her. 

All relevant evidence is admissible, Evid.R. 402, unless its probative value is 

substantially outweighed by the danger of unfair prejudice, confusion of the issues, 

or misleading the jury, Evid.R. 403(A).5

 

4

 These statements do not raise confrontation concerns because Luke and Witherell both testified 

during the state’s case-in-chief. “[W]hen the declarant appears for cross-examination at trial, the 

Confrontation Clause places no constraints at all on the use of his prior testimonial statements.” 

Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), fn.9. 5

 McKelton repeatedly asserts that “heightened scrutiny” applies to Evid.R. 403 objections in capital 

cases. But the case he cites for this proposition establishes a more exacting standard for the 
SUPREME COURT OF OHIO

36 

{¶ 145} In the recording of the first call admitted, McKelton explained the 

police’s theory of Evans’s murder and asked Crystal why she had left police a 

voicemail suggesting that he arrived home after 10 p.m. on February 27. In the 

second call, he and Crystal argued loudly, and he scolded, “I wonder why you making 

these stupid decisions.” These conversations are highly probative of McKelton’s 

efforts to establish an alibi and to monitor Crystal’s exchanges with police, and their 

probative value is not substantially outweighed by the danger of unfair prejudice. 

{¶ 146} The content of the letters was also more probative than unfairly 

prejudicial. The four letters introduced during Crystal’s testimony supported the 

state’s theory that McKelton was trying to persuade her to lie for him at trial. In 

one, he proposes to Crystal and discusses his plans to marry her. In another, he 

teaches her a secret code and discusses his desire for a venue change due to 

publicity. In yet another, he says he wants to drum up media attention and suggests 

publicly posting witness names, arguably as a scare tactic. And in the last, he notes 

that he has reviewed evidence that Evans died at 10:00 p.m. and reminds Crystal 

that they were “home asleep at ten.” The trial court did not err by admitting this 

evidence. 

{¶ 147} For these reasons, we reject proposition of law No. 10. 

4. Audrey Dumas as a Witness Identified with an Adverse Party: 

Proposition of Law No. 7 

{¶ 148} In proposition of law No. 7, McKelton argues that his due-process 

rights were violated when the trial court allowed the state to treat Audrey Dumas 

as a witness identified with an adverse party and permitted excessive, leading 

questions. 

 

admission of gruesome photographs in capital cases, not for the admission of all evidence in capital 

cases. See State v. Morales, 32 Ohio St.3d 252, 257-258, 513 N.E.2d 267 (1987). This court has 

declined to extend Morales beyond the context of gruesome photographs. See Mammone, 139 Ohio 

St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, at ¶ 130. 
January Term, 2016 

37 

a. Factual background 

{¶ 149} Before Dumas began testifying, the state sought leave to use 

leading questions under Evid.R. 611(C) because she was “identified with the 

adverse party in this case.” After requiring the state to establish Dumas’s 

relationship with McKelton, the trial court granted the state’s request. 

b. Determination that Dumas was identified with an adverse party 

{¶ 150} Evid.R. 611(C) generally prohibits the use of leading questions on 

direct examination. However, they are permitted “[w]hen a party calls a hostile 

witness, an adverse party, or a witness identified with an adverse party.” Id. We 

review a trial court’s application of this rule for an abuse of discretion. Ramage v. 

Cent. Ohio Emergency Serv., Inc., 64 Ohio St.3d 97, 111, 592 N.E.2d 828 (1992). 

{¶ 151} Here, the record supports the trial court’s finding that Dumas was 

identified with McKelton. Dumas testified that they had ended a six-year romantic 

relationship earlier that year, and they were still close. She visited McKelton in 

jail, sent him money, exchanged letters with him, and spoke to him on the 

telephone. Indeed, she had even spoken with him since his trial began four days 

earlier. 

{¶ 152} McKelton argues that even if his relationship to Dumas was 

sufficient to establish that she was identified with him, to establish adversity, the 

prosecutor also had to show that Dumas was evasive. But evasiveness is not a 

prerequisite to finding adversity. Instead, it is generally relevant to assessing 

whether a witness is hostile, an entirely separate basis for permitting leading 

questions under Evid.R. 611(C). See Weissenberger, Ohio Evidence: 1991 

Courtroom Manual (1991) 170 (“A hostile witness is one who is so evasive or 

uncooperative on examination that his testimony is impeded”). 

{¶ 153} Thus, the trial court reasonably found that Dumas was a witness 

identified with an adverse party. 

 
SUPREME COURT OF OHIO

38 

c. The state’s questions 

{¶ 154} McKelton alternatively argues that the state “used excessive 

leading questions to improperly put words in [Dumas’s] mouth and place improper 

insinuations before the jury.”6 Because McKelton did not raise this objection at 

trial, we review for plain error. 

{¶ 155} On direct examination, the prosecutor inquired about the following: 

(1) whether Dumas had given McKelton money in the past and whether she had set 

up robbery victims for him, (2) her date with McKelton on the evening of Allen’s 

death, (3) her interaction with McKelton after Allen’s body was found, and (4) 

McKelton’s request that she speak to his attorney about his alibi a few weeks after 

Allen’s death. Throughout the questioning, the prosecutor expressed disbelief that 

Dumas had never asked McKelton whether he killed Allen. He also tried to 

establish that Dumas had, at McKelton’s request, texted and called McKelton on 

the night of Evans’s murder to establish an alibi for him. 

{¶ 156} McKelton first claims that the prosecutor used “excessive” leading 

questions. But a party is permitted to ask leading questions under Evid.R. 611(C), 

and there is no limit on the number of leading questions the party may ask. 

{¶ 157} Second, although McKelton claims that the prosecutor “improperly 

put words in Dumas’[s] mouth,” Dumas often refused to answer questions with a 

simple “yes” or “no.” 

{¶ 158} Third, McKelton claims that the questions amounted to “improper 

insinuations.” “Prosecutors must avoid insinuations and assertions calculated to 

mislead. * * * [T]hey may not allude to matters not supported by admissible 

evidence.” State v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990). Although 

the state’s questions did imply that the alibis were not credible and the prosecutor 

 

6

 McKelton also asserts that “the State used Dumas” to present “highly inflammatory evidence that 

should have been excluded under Evid.R. 403(A).” But he does not identify the evidence he deems 

inflammatory and thus has not meaningfully presented this claim for review. 
January Term, 2016 

39 

argued in closing that McKelton asked Dumas to provide an alibi for both nights, 

there is no indication that these questions were calculated to mislead the jury or 

were unsupported by a factual predicate. 

{¶ 159} We reject proposition of law No. 7. 

5. Domestic-Violence Expert: Proposition of Law No. 14 

{¶ 160} In proposition of law No. 14, McKelton argues that the state’s 

expert testimony about domestic violence was inadmissible because the defense 

had not challenged the credibility of the victim. He further argues that the expert 

impermissibly testified about Allen’s specific characteristics rather than about 

characteristics of domestic-violence victims generally. 

{¶ 161} Expert-witness testimony is generally admissible “if it will assist 

the trier of fact in search of the truth.” State v. Koss, 49 Ohio St.3d 213, 216, 551 

N.E.2d 970 (1990). Evid.R. 702 permits a witness to testify as an expert if (1) the 

“testimony either relates to matters beyond the knowledge or experience possessed 

by lay persons or dispels a misconception common among lay persons,” (2) the 

witness “is qualified as an expert by specialized knowledge, skill, experience, 

training, or education regarding the subject matter of the testimony,” and (3) the 

“testimony is based on reliable scientific, technical, or other specialized 

information.” We review a trial court’s admission of expert testimony for an abuse 

of discretion. State v. Haines, 112 Ohio St.3d 393, 2006-Ohio-6711, 860 N.E.2d 91, 

¶ 50. Although Allen was deceased, the state presented a theory that domestic abuse 

had occurred even though Allen had not reported it. This expert testimony met the 

Koss test of assisting the trier of fact to determine a material issue. 

{¶ 162} Over repeated objections, Margene Robinson, a retired police 

lieutenant who had supervised the Domestic Violence Unit in the Dayton Police 

Department, testified as a domestic-violence expert during the state’s case-in-chief. 

She described the three phases of a cycle of domestic violence: (1) the tensionbuilding phase, when economic or domestic issues arise or the abuser makes 
SUPREME COURT OF OHIO

40 

accusations, (2) the battering phase, when the perpetrator engages in verbal, sexual, 

or physical abuse, and (3) the honeymoon phase, when the abuser expresses 

remorse and may promise to change. She added that after the third phase, the cycle 

begins again. Domestic violence is about asserting “power over the victim * * * and 

control,” and many victims are reluctant to leave an abusive relationship because of 

religious beliefs, shame, or fears of retaliation, she testified. 

{¶ 163} McKelton argues that Robinson exceeded the established limits for 

expert testimony about domestic violence. This court has affirmed the use of expert 

testimony about battered-women’s syndrome, but only if “ ‘there is some evidentiary 

foundation that a party or witness to the case is a battered woman, and that party or 

witness has behaved in such a manner that a jury would be aided by expert testimony 

providing an explanation for the behavior.’ ”7

 Id. at ¶ 46, quoting State v. Borrelli, 

227 Conn. 153, 172, 629 A.2d 1105 (Conn.1993), fn. 15. 

{¶ 164} The state offered Robinson’s testimony about the cycle of domestic 

violence to explain how Allen’s failure to report McKelton could be consistent with 

other evidence of abuse. And the state established an adequate foundation for this 

testimony by presenting evidence that McKelton and Allen were in a cycle of 

domestic violence. See Haines, 112 Ohio St.3d 393, 2006-Ohio-6711, 860 N.E.2d 

91, at ¶ 48 (“Evidence generally establishing the cycles of a battering relationship 

is an appropriate foundation for battered-woman-syndrome expert testimony”). 

Thus, Robinson’s testimony was both relevant and predicated upon a proper 

foundation. 

{¶ 165} Regarding McKelton’s assertion that Robinson improperly testified 

about Allen’s specific characteristics, we note that although Robinson indicated 

some familiarity with Allen’s background, she did not opine that Allen was a 

 

7

 Experts often use the term “battered woman syndrome” to refer to “both the psychological effects 

of domestic violence and the dynamics of abusive relationships.” Dutton, Understanding Women’s 

Responses to Domestic Violence: A Redefinition of Battered Woman Syndrome, 21 Hofstra L.Rev. 

1191, 1195 (1993), fn. 14. 
January Term, 2016 

41 

victim. Her testimony about women bearing certain characteristics dispelled a 

common misperception—echoed in McKelton’s own brief to this court—that there 

is a “stereotypical victim of domestic violence.” Through Robinson, the state 

established that domestic violence can affect unlikely victims. 

{¶ 166} Finally, McKelton argues that Robinson’s testimony violated 

Evid.R. 403 because it was tainted by her knowledge of the facts in this case. 

Robinson testified that before trial, she had reviewed some of Allen’s writings and 

a letter to Allen from McKelton. McKelton reasons that Robinson’s reference to 

these materials implied that Robinson “was called because the materials’ contents 

revealed incidents of domestic violence.” 

{¶ 167} Robinson did not need to review this information—or to mention it 

at trial—in order to testify generally about domestic violence. But the record in no 

way suggests that these materials affected her testimony; she testified that her 

knowledge was derived from domestic-violence literature and her own experience. 

Ideally, the trial court should have instructed the jury on the limits of Robinson’s 

testimony to eliminate any possible confusion, see Haines, 112 Ohio St.3d 393, 

2006-Ohio-6711, 860 N.E.2d 91, at ¶ 57, but even so, we cannot conclude that the 

trial court abused its discretion by denying McKelton’s motion “to strike all of her 

testimony.” (Emphasis added.) 

{¶ 168} For these reasons, we reject proposition of law No. 14. 

6. Cross-Examination of Informants: Proposition of Law No. 9 

{¶ 169} In proposition of law No. 9, McKelton claims that the trial court 

improperly limited his cross-examination of three incarcerated informants: Charles 

Bryant, Lemuel Johnson, and Marcus Sneed. McKelton says that the jury was “not 

able to thoroughly judge [their] credibility” because he did not get to adequately 

question them about their motives for testifying about his statements implicating 

himself in the murders of Allen and Evans. 

 
SUPREME COURT OF OHIO

42 

a. Scope of the right to cross-examine a witness 

{¶ 170} The Sixth Amendment to the U.S. Constitution gives a defendant 

the right “to be confronted with the witnesses against him.” See also Ohio 

Constitution, Article I, Section 108 (“the party accused shall be allowed * * * to 

meet the witnesses face to face”). But this protection “guarantees only ‘an 

opportunity for effective cross-examination.’ ” (Emphasis in original.) State v.

Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 83, quoting 

Delaware v. Fensterer, 474 U.S. 15, 20, 106 S.Ct. 292, 88 L.Ed.2d 15 (1985). Trial 

courts have “wide latitude * * * to impose reasonable limits on such crossexamination based on concerns about, among other things, harassment, prejudice, 

confusion of the issues, the witness’ safety, or interrogation that is repetitive or only 

marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 

89 L.Ed.2d 674 (1986). 

{¶ 171} Similarly, Evid.R. 611(B) requires trial courts to permit “[c]rossexamination * * * on all relevant matters and matters affecting credibility.” 

However, under Evid.R. 611(A), a trial court “shall exercise reasonable control 

over the mode and order of interrogating witnesses and presenting evidence.” 

{¶ 172} When a defendant challenges a trial court’s limitation on crossexamination on appeal, the standard of review turns on the nature of the limitation. 

“Limitations * * * that deny a defendant ‘the opportunity to establish that the 

witnesses may have had a motive to lie’ infringe on core Sixth Amendment rights” 

and are reviewed de novo. (Emphasis sic.) State v. Gonzales, 151 Ohio App.3d 

160, 2002-Ohio-4937, 783 N.E.2d 903, ¶ 45 (1st Dist.), quoting United States v. 

Nelson, 39 F.3d 705, 708 (7th Cir.1994). To establish a confrontation violation, 

then, McKelton must show that he was “prohibited from engaging in otherwise 

appropriate cross-examination.” Van Arsdall at 680. But if a trial court “allow[ed] 

 

8

 “Section 10, Article I provides no greater right of confrontation than the Sixth Amendment * * *.” 

State v. Self, 56 Ohio St.3d 73, 79, 564 N.E.2d 446 (1990). 
January Term, 2016 

43 

cross-examination to expose a motive to lie,” then “it is of peripheral concern to 

the Sixth Amendment how much opportunity defense counsel gets to hammer that 

point home to the jury.” Nelson at 708. Under those circumstances, the extent of 

cross-examination is within the sound discretion of the trial court. State v. 

Freeman, 7th Dist. Jefferson No. 07JE5, 2008-Ohio-2925, ¶ 12, citing State v. 

Green, 66 Ohio St.3d 141, 147, 609 N.E.2d 1253 (1993). To prove a violation of 

Evid.R. 611, McKelton must demonstrate that the trial court’s limitation on crossexamination was “unreasonable, arbitrary or unconscionable.” Freeman at ¶ 12. 

b. Charles Bryant 

{¶ 173} On direct examination, Bryant stated that he was willing to 

cooperate with police out of self-interest, but he denied that he had been promised 

anything specific. On cross-examination, the defense established that Bryant had a 

prior felonious-assault conviction and had been awaiting trial for felonious assault 

and other offenses for 14 months. He admitted that his trial had been continued 

“[r]oughly maybe four times” but denied that it had been continued “to see how 

[his] testimony goes in [McKelton’s] case.” His attorney had advised him, 

however, that testifying against McKelton might help Bryant in his case. 

{¶ 174} The trial court sustained objections to two defense questions: how 

many times Bryant’s pending case had been set for trial and whether he had been 

charged with trafficking. See Van Arsdall, 475 U.S. at 680, 106 S.Ct. 1431, 89 

L.Ed.2d 674. The jurors already knew that Bryant was awaiting trial on felony 

offenses and that his trial had been continued until after he testified in McKelton’s 

case, which “adequately established [his] motive to lie.” State v. Reed, 10th Dist. 

Franklin No. 09AP-84, 2009-Ohio-6900, ¶ 11. The trial court did not violate 

McKelton’s confrontation rights or Ohio’s evidentiary rules by sustaining 

objections to these questions. 

 
SUPREME COURT OF OHIO

44 

c. Lemuel Johnson 

{¶ 175} Johnson testified that he had been incarcerated on a federal cocainepossession charge for about a year and would be sentenced about a month after 

McKelton’s trial. But Johnson insisted that he did not expect his testimony against 

McKelton to help him at sentencing. He explained that he had not told police about 

his conversations with McKelton until he was locked up on this charge because he 

had assumed that “everybody in Cincinnati knew” already. He also told the jury 

about his prior convictions. 

{¶ 176} On cross-examination, the trial judge sustained an objection to 

questioning as asked and answered when defense counsel repeatedly questioned 

Johnson about why Johnson thought his testimony would matter now. The jury had 

ample information to evaluate Johnson’s motives to testify; it had been told that he 

was incarcerated and would soon be sentenced. See Tansley, 986 F.2d at 886; Reed, 

2009-Ohio-6900, at ¶ 11. Repetition would have given the jury no greater 

information from which to form a different impression of his credibility. 

d. Marcus Sneed 

{¶ 177} Sneed did not speak to police until he was jailed on federal 

conspiracy charges. He said that McKelton’s admissions had long weighed on his 

conscience, but that he had been too worried for his family’s safety to say anything 

until McKelton was locked up. 

{¶ 178} Sneed had been in federal custody for 13 or 14 months on a drugconspiracy charge at the time of McKelton’s trial. He expressed uncertainty about 

whether he was facing a lengthy sentence, but admitted that he was being held 

without bond and had prior convictions in Ohio. He also admitted that his sentencing 

had been continued until after he testified at McKelton’s trial, but said he did not 

know why. He insisted that he was not testifying with an eye to his upcoming 

sentencing hearing. 
January Term, 2016 

45 

{¶ 179} The trial court sustained objections when defense counsel 

repeatedly questioned Sneed about the timing of his continuance, even after Sneed 

had answered. The trial court also sustained objections to inquiry into how many 

counts Sneed was facing and privileged attorney-client communications. The jury 

had sufficient information to evaluate Sneed’s credibility, however. See Reed, 

2009-Ohio-6900, at ¶ 11; Tansley, 986 F.2d at 886. Thus, cross-examination was 

not improperly curtailed. 

{¶ 180} For these reasons, we reject proposition of law No. 9.

7. Other Hearsay and Confrontation Challenges: Proposition of Law No. 11 

{¶ 181} In proposition of law No. 11, McKelton argues that the admission 

of hearsay evidence violated the Rules of Evidence and the Confrontation Clause. 

We will not reverse a trial court’s ruling on evidentiary issues absent an abuse of 

discretion and proof of material prejudice. See State v. Belton, __ Ohio St.3d __, 

2016-Ohio-1581, __ N.E.3d ¶ 116. 

a. “He choked her mother with a phone cord” 

{¶ 182} Over objection, the prosecutor played a recording of a May 4, 2008 

conversation between Z.D., Allen’s niece, and a 9-1-1 dispatcher. On the 

recording, Z.D. related a statement by an out-of-court declarant, McKelton’s 

daughter, who had “warned [her] about [McKelton], ’cause she said that he choked 

her mother with a phone cord.” 

{¶ 183} The statement by McKelton’s daughter is hearsay within hearsay, 

which “is not excluded under the hearsay rule if each part of the combined 

statements conforms with an exception to the hearsay rule provided in the [Ohio 

Rules of Evidence].” Evid.R. 805. Z.D.’s out-of-court statements on the 9-1-1 

recording were admissible under the excited-utterance or state-of-mind hearsay 

exceptions. See Evid.R. 803(2) and (3). But the record does not indicate that 

McKelton’s daughter described the phone-cord incident to Z.D. while “under the 

stress of excitement caused by the event.” Evid.R. 803(2). Nor does it show that 
SUPREME COURT OF OHIO

46 

the statement went to McKelton’s daughter’s “then existing state of mind, emotion, 

[or] sensation” about the incident. Evid.R. 803(3); 1980 Staff Notes, Evid.R. 

803(3) (state-of-mind exception “does not include statements of belief of past 

events” because doing so “would negate the entire proscription against hearsay 

evidence”). The state has not identified any other hearsay exception that would 

permit this statement, and this evidence should have been excluded.9

 

{¶ 184} Even so, McKelton was not materially prejudiced by the error. 

Belton, __ Ohio St.3d __, 2016-Ohio-1581, __ N.E.3d ___, at ¶ 116. The trial judge 

here expressly admonished the jurors not to consider anything in the 9-1-1 tape for 

its truth; they were permitted to consider the recording only as evidence of Z.D.’s 

“emotions and state of mind at the time” she called 9-1-1. This instruction 

significantly minimized any potential harm to McKelton. In addition, the jury 

heard far more prejudicial evidence from other witnesses that McKelton had choked 

women, specifically Allen, in the past. Under these circumstances, the error in 

admitting the phone-cord statement was harmless beyond a reasonable doubt. See

Crim.R. 52(A); State v. Morris, 141 Ohio St.3d 399, 2014-Ohio-5052, 24 N.E.3d 

1153, ¶ 28-29. 

{¶ 185} McKelton also cannot establish a confrontation-clause violation. 

Only testimonial hearsay implicates the Confrontation Clause. Davis, 547 U.S. 

813, 821, 126 S.Ct. 2266, 165 L.Ed.2d 224. “[T]estimonial statements are those 

made for ‘a primary purpose of creating an out-of-court substitute for trial 

testimony.’ ” State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, 

¶ 40, quoting Michigan v. Bryant, 562 U.S. 344, 358, 131 S.Ct. 1143, 179 L.Ed.2d 

93 (2011). But “[s]tatements to friends and neighbors about abuse and 

intimidation” are nontestimonial. Giles, 554 U.S. at 376, 128 S.Ct. 2678, 171 

 

9

 Given this conclusion, we need not consider McKelton’s alternative arguments that the statement 

violated Evid.R. 403 or 404. 
January Term, 2016 

47 

L.Ed.2d 488. Here, the statement from McKelton’s daughter to Z.D. was 

nontestimonial, and therefore no Sixth Amendment violation occurred. 

b. Hearsay to describe a subsequent investigative step 

{¶ 186} Two detectives related hearsay, over objection, while testifying 

about their investigations of Allen’s murder. A law-enforcement officer can testify 

about a declarant’s out-of-court statement for the nonhearsay purpose of explaining 

the next investigative step. State v. Thomas, 61 Ohio St.2d 223, 232, 400 N.E.2d 

401 (1980). Testimony offered to explain police conduct is admissible as 

nonhearsay only if it satisfies three criteria: (1) “the conduct to be explained [is] 

relevant, equivocal, and contemporaneous with the statements,” (2) the probative 

value of the statements is not substantially outweighed by the danger of unfair 

prejudice, and (3) “the statements cannot connect the accused with the crime 

charged.” State v. Ricks, 136 Ohio St.3d 356, 2013-Ohio-3712, 995 N.E.2d 1181, 

¶ 27. If testimony qualifies as nonhearsay, it does not implicate the Confrontation 

Clause. Crawford, 541 U.S. at 59, 124 S.Ct. 1354, 158 L.Ed.2d 177, fn. 9, citing 

Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 2078, 85 L.Ed.2d 425 (1985). 

{¶ 187} Detective Witherell testified that during the Evans investigation, he 

was told that on the night he disappeared, Evans got into a car with Donte Terry in 

downtown Cincinnati. As a result, Witherell interviewed Terry and obtained his 

DNA sample. The rumor was not inadmissible hearsay because the state did not 

offer the statement for its truth. Witherell related the rumor only to explain how 

his investigation progressed (and why police had tested Terry’s DNA). See Ricks

at ¶ 27; Thomas at 232. The trial judge instructed the jury not to rely on the rumor 

for its truth. And contrary to McKelton’s assertions, the prejudicial impact of this 

evidence did not outweigh its probative value. Evid.R. 403. 

{¶ 188} Detective Luke explained why she began to look for Evans in 

connection with the investigation of Allen’s death. She stated that she had gotten 

a new lead on Evans in February 2009. Before Luke described what she heard, the 
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48 

trial court emphasized to the jurors that they should not take her testimony for its 

truth and that it was being offered only to explain her state of mind. Luke then 

testified that she had heard that Evans “was present during Missy’s homicide, that 

he knew about it and that he was scared and that he may have either helped move 

the body or that he was present in the house when Missy was killed.” This 

information prompted Luke to call Crystal in an effort to locate Evans. 

{¶ 189} Luke’s testimony violated Ricks because it went beyond the 

nonhearsay purpose of explaining why she was trying to locate Evans; her 

testimony also supported the state’s theory that McKelton killed Evans because he 

had witnessed Allen’s murder. Viewed for its truth, Luke’s statement connected 

the two deaths. As a result, McKelton was entitled to confront the informant who 

gave Luke the information. 

{¶ 190} Even so, the error was harmless beyond a reasonable doubt. See 

Chapman v. California, 386 U.S. 18, 23, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967); see 

also State v. Jordan, 9th Dist. Summit No. 27005, 2014-Ohio-2857, ¶ 8-11 

(evidence violated Ricks, but error was harmless beyond a reasonable doubt). The 

trial judge instructed the jurors not to consider this part of Luke’s testimony for its 

truth, and we presume that they followed the instruction. See State v. Loza, 71 Ohio 

St.3d 61, 79, 641 N.E.2d 1082 (1994). Moreover, viewed alongside the state’s 

other evidence against McKelton, we do not see a “ ‘reasonable possibility that the 

evidence * * * might have contributed to the conviction.’ ” Chapman at 24, quoting 

Fahy v. Connecticut, 375 U.S. 85, 86, 84 S.Ct.229, 11 L.Ed.2d 171. 

c. Statements by spectators at Inwood Park 

{¶ 191} Detective Karaguleff testified about statements he heard at Inwood 

Park when the police were investigating the discovery of a body, later identified as 

Evans. He said that Evans’s mother and family members, who insisted that the 

victim was Evans, “believed that he was killed by his friend, Calvin McKelton 

* * * because he helped move that lawyer’s body.” According to Karaguleff, the 
January Term, 2016 

49 

spectators made these statements in an “emotional” state; “[s]ome were crying,” 

and they were “yelling, screaming, wailing.” Because McKelton did not raise 

hearsay and confrontation-clause objections at trial, he has waived all but plain 

error. See Barnes, 94 Ohio St.3d at 27, 759 N.E.2d 1240. 

{¶ 192} It is unclear whether these statements were admissible under the 

excited-utterance exception in Evid.R. 803(2) or whether they violated McKelton’s 

confrontation rights, because the record does not indicate whether the bystanders 

spoke spontaneously, provided this information in response to police questioning, 

or even had any firsthand knowledge regarding the location or identity of the body, 

let alone the cause of death. But even assuming that a confrontation-clause 

violation occurred, the error was harmless because “the probable impact” of the 

statements “on the minds of an average jury” was negligible. Harrington v. 

California, 395 U.S. 250, 254, 89 S.Ct. 1726, 23 L.Ed.2d 284 (1969). The jurors 

heard other witnesses testify that McKelton had admitted killing Evans because he 

had witnessed Allen’s murder. Thus, “there is [no] reasonable possibility that the 

improperly admitted evidence contributed to the conviction,” and so the alleged 

confrontation error was harmless beyond a reasonable doubt. Schneble v. Florida, 

405 U.S. 427, 432, 92 S.Ct. 1056, 31 L.Ed.2d 340 (1972). For the same reason, the 

admission of these statements did not rise to the level of plain error. 

{¶ 193} Proposition of law No. 11 fails. 

8. Irrelevant and Prejudicial Evidence: Proposition of Law No. 5 

{¶ 194} In his fifth proposition of law, McKelton argues that the state 

violated his constitutional rights by introducing numerous pieces of irrelevant and 

prejudicial evidence, as well as character evidence, at trial, in violation of Evid.R. 

403 and 404. Unless otherwise noted, McKelton did not object to this evidence at 

trial, so we review his claims for plain error. See Barnes, 94 Ohio St.3d at 27, 759 

N.E.2d 1240. 

 
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50 

a. Photographs of McKelton’s tattoos 

{¶ 195} McKelton objects to the admission of several photographs of him 

taken by police after Allen’s death, some of which depicted his tattoos. The police 

had photographed the tattoos “just for identification purposes.” The prosecutor 

mentioned the tattoos during closing arguments, stating, “It’s almost beyond 

[parody] to sit here and imagine how it happened, the defendant having a tattoo that 

says, straight killer, but that’s his [tattoo].” 

{¶ 196} We agree that the tattoo photos should have been excluded under 

Evid.R. 403. The photographs encouraged the jury to draw an improper inference 

that McKelton committed the crimes charged because his tattoos showed his 

comfort with death and guns. And other photographs at trial clearly confirmed 

McKelton’s identity without depicting his tattoos. Thus, any minimal probative 

value that the photos may have had was outweighed by the danger of unfair 

prejudice. 

{¶ 197} Nevertheless, given the overwhelming evidence of McKelton’s 

guilt, we are unpersuaded that but for these photos, “the outcome of the trial clearly 

would have been otherwise.” Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 

N.E.3d 1051, at ¶ 69. 

b. Killing other witnesses 

{¶ 198} Lemuel Johnson testified that McKelton offered to “take care of” 

some witnesses for Johnson’s incarcerated brother and described his past success 

in preventing witnesses (including Evans) from testifying. Defense counsel 

objected. The court warned the jurors not to consider the testimony as evidence of 

McKelton’s “character * * * in order to show that he acted in conformity or in 
January Term, 2016 

51 

accordance with that character.” 10 The state now argues that the evidence was 

admissible to prove McKelton killed witnesses to silence them. 

{¶ 199} Evidence of a certain modus operandi is admissible under Evid.R. 

404(B) “because it provides a behavioral fingerprint which, when compared to the 

behavioral fingerprints associated with the crime in question, can be used to identify 

the defendant as the perpetrator.” State v. Lowe, 69 Ohio St.3d 527, 531, 634 

N.E.2d 616 (1994). But to be admitted for this purpose, evidence of other acts 

“must be related to and share common features with the crime in question.” Id. 

{¶ 200} Here, Johnson’s testimony does not establish a distinctive 

behavioral fingerprint. But Johnson’s testimony also established the context for 

McKelton’s admissions about Allen and Evans. And the trial judge clearly 

instructed the jurors that they could not rely on evidence about how McKelton 

treated witnesses to show his character or for any other improper purpose. Thus, 

we do not find error. 

c. Witness intimidation 

{¶ 201} Detective Gregory testified that he received a frantic phone call 

from Michael Nix early on September 26, 2010. Nix said that an associate of 

McKelton had approached him at a party and asked how McKelton’s trial was going 

to go. Nix had replied that he did not know. The associate then left the party. 

Twenty minutes later, someone fired shots at Nix from a passing car. 

{¶ 202} This testimony is not improper evidence of another act. Instead, it 

is evidence to support the charge that McKelton tried to prevent a witness from 

testifying against him in this trial. Evidence that McKelton may have interfered 

with a witness’s testimony in this trial is highly probative of his consciousness of 

 

10 On redirect, the prosecutor alluded to the identity of other victims. McKelton argues that trial 

court erred by overruling an objection to leading questions on this topic. But these questions were 

not leading: they did not suggest an answer. See Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 

N.E.2d 565, at ¶ 149. And even if they had been, they did not prejudice McKelton because Johnson 

had already testified that McKelton said he had killed multiple witnesses. 
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52 

guilt. See State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, 

¶ 68. Thus, this evidence was admissible. 

d. “C Murderer” 

{¶ 203} Detective Gregory stated that McKelton’s street name was “C 

Murderer.” In State v. Gillard, this court held that the prosecutor’s repeated 

references to the significance of the defendant’s nickname, “Dirty John,” were 

“improper attempts to impugn Gillard’s character.” 40 Ohio St.3d at 230, 533 

N.E.2d 272, abrogated on other grounds, State v. McGuire, 80 Ohio St.3d 390, 686 

N.E.2d 1112 (1997). By contrast, here the state made a single reference to 

McKelton’s nickname and did not argue the significance of that nickname. We 

cannot reverse for plain error, because “it is not clear that, had the nickname not 

been improperly used, the outcome of the trial would have been different.” Id. 

e. “Serial killer” 

{¶ 204} Sheridan Evans testified that police should not have called Crystal 

when looking for Evans because doing so “was like throwing meat to a tiger when 

you know this man is a serial killer.” The danger of unfair prejudice from 

Sheridan’s description of McKelton as a “serial killer” exceeded any possible 

probative value. But because we are unpersuaded that this evidence was outcomedeterminative, we do not reverse for plain error. 

f. “Killer” and “robber boy” 

{¶ 205} Shaunda Luther testified that Allen referred to McKelton and his 

companions, one of whom had been indicted for a triple homicide, as “killers” and 

to McKelton as a “robber boy,” meaning a “person who robs other drug dealers.” 

{¶ 206} Luther’s testimony showed that Allen was aware of McKelton’s 

past criminal behavior and that Allen may not have reported McKelton’s repeated 

domestic violence to police because she was afraid of McKelton. In other words, 

the statements were offered to show Allen’s perception of McKelton and their 

relationship, not to prove that he was a murderer or a robber. And the trial court 
January Term, 2016 

53 

reduced any danger of unfair prejudice by issuing a limiting instruction to the jury. 

See State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 194. 

{¶ 207} McKelton objects to the state’s implication that Audrey Dumas set 

up robbery victims for him and that these schemes generated the money that she sent 

to him in prison. She testified that she later refused to play the “role” of his girlfriend 

because McKelton and Crystal had a baby. The state implied that by this “role,” 

Dumas meant not only sending McKelton money, but also facilitating robberies and 

providing an alibi. But this series of questions and answers was relevant to Dumas’s 

status as a witness identified with an adverse party, and the trial court did not err by 

admitting it. 

g. Drug activity 

{¶ 208} Several witnesses testified about McKelton’s drug activity. First, 

Lemuel Johnson testified that he and McKelton were engaged in a drug-related 

transaction when McKelton offered to take care of some witnesses for him. This 

testimony provided context for McKelton’s offer to take care of the witnesses 

against Johnson’s brother. The trial court twice instructed the jury not to draw 

improper inferences from it. We presume that the jurors followed these 

instructions. See Loza, 71 Ohio St.3d at 79, 641 N.E.2d 1082. 

{¶ 209} Second, Crystal referred to McKelton’s drug activity when 

answering the prosecutor’s questions about McKelton’s “business” and family 

telephone numbers. Cell-phone records featured prominently in the police 

investigation. and Crystal’s testimony explained why McKelton had more than one 

phone number and why he changed his numbers once a week. Moreover, any error 

in admitting this evidence was harmless because other witnesses spoke with more 

detail about McKelton’s drug activity. 

{¶ 210} Third, Charles Bryant testified that he and McKelton had engaged 

in “dope dealing” in the past, but this testimony bolstered Bryant’s credibility as an 

informant by providing context for McKelton’s confession to him. And Andre 
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54 

Ridley testified that Evans claimed that McKelton had given him 20 ounces of 

cocaine, with an estimated value of $20,000 or $40,000, after the men moved 

Allen’s body, which suggests that McKelton bribed Evans to keep him from 

reporting Allen’s murder and for helping dispose of her body. These pieces of 

evidence were highly probative, and their value far outweighed the danger of unfair 

prejudice. 

{¶ 211} Finally, McKelton objects to evidence about his “lavish lifestyle as 

a drug dealer.” Luther testified that McKelton gave Allen significant amounts of 

money. But evidence about Allen’s financial dependency on McKelton was 

relevant to the state’s effort to establish a cycle of domestic violence, the first step 

of which is “the tension building phase,” when tension keeps rising as a result of 

economic-power issues in the relationship. And the prejudicial impact of this 

testimony was minimal, given that Luther did not address the source of McKelton’s 

money. 

h. Rumors 

{¶ 212} Several state witnesses said that they had heard rumors about who 

was responsible for the murders. “Rumors * * * are prototypical examples of 

inadmissible hearsay.” Weaks v. North Carolina Dept. of Transp., 761 F.Supp.2d 

289, 306 (M.D.N.C.2007). 

{¶ 213} Sheridan Evans testified about a conversation in which McKelton 

had told her that “Pooh,” Michael McNeil, had killed Evans. She responded, “Well, 

Pooh said you did it.” This testimony was offered to provide context for 

McKelton’s threatening reaction when he was accused of the murder. 

{¶ 214} Marcus Sneed testified that in two conversations, he asked 

McKelton whether what “everybody was saying in the street” about the murders 

was true. The testimony provided context for McKelton’s responses admitting 

involvement in the murder of Allen and Evans. 
January Term, 2016 

55 

{¶ 215} Crystal testified about rumors that she did not associate with 

McKelton after her brother’s death because of “rumors that he had something to do 

with [her] brother’s death.” This testimony was presented to show Crystal’s state 

of mind when she initially spoke to police. 

{¶ 216} Lemuel Johnson testified on cross-examination that he believed 

McKelton’s accounts about eliminating witnesses, saying, “I already knew from 

the streets that he was telling the truth.” But defense counsel invited this testimony 

by inquiring whether Johnson believed McKelton “was being serious about these 

witnesses that he was telling [Johnson] about.” 

{¶ 217} In all these instances, evidence was offered for a nonhearsay 

purpose and not for the truth of the matter asserted. Accordingly, there was no 

violation of hearsay rules or the Confrontation Clause. See Davis, 547 U.S. at 821, 

126 S.Ct. 2266, 165 L.Ed.2d 224 (only testimonial statements implicate the 

Confrontation Clause). And in each situation, the trial court reasonably permitted 

the evidence under Evid.R. 403 because its probative value outweighed any unfair 

prejudice to McKelton. 

i. “Generalized testimony” 

{¶ 218} McKelton next objects to the admission of allegedly prejudicial 

“generalized” statements that he was unable to meaningfully refute at trial. Most 

of the statements cited by McKelton are discussed elsewhere in this opinion. And 

his remaining objections are meritless. 

j. References to rap songs 

{¶ 219} McKelton argues that the state attempted to vilify him by making 

irrelevant and prejudicial references to rap songs. 

{¶ 220} Andre Ridley testified that, by Evans’s account, McKelton had 

gotten the idea to throw “some dope” by Allen’s body from a rap song. Ridley’s 

reference to the rap song was a detail that lent credibility to Evans’s description of 

how McKelton disposed of Allen’s body, which was crucial to establishing both 
SUPREME COURT OF OHIO

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that McKelton had committed crimes against Allen and that Evans had witnessed 

those crimes. 

{¶ 221} The trial court did not abuse its discretion by admitting this 

evidence. 

k. Battles Co. 

{¶ 222} Over defense objection, Detective Witherell testified about a 

jailhouse letter from McKelton to Crystal. The letter states, “[I]n July when we 

find out everyone they are using, we gone get there records and post them up all 

over * * * Co.” Immediately preceding “Co.” is a seven-letter word that begins 

with a capital “B.” Witherell read the word as “Battles,” which he took to refer to 

JC Battle & Sons Funeral Homes, Inc., a funeral parlor near Crystal’s home. He 

thought that McKelton wanted to post the names of potential witnesses at a funeral 

home to convey a “subtle” message that their safety was in peril. He explained that 

he knew how “information is disseminated in certain [Cincinnati] neighborhoods” 

and that the letter concerned him in light of “McKelton’s history in terms of 

witnesses.” 

{¶ 223} Evidence of plans to threaten witnesses was probative of 

McKelton’s consciousness of guilt as well as McKelton’s method of operating, and 

the defense had opportunity to press Witherell about the basis for his opinion. Thus, 

we are not persuaded that this testimony violated Evid.R. 403. See Conway, 109 

Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, at ¶ 68. 

l. McKelton’s treatment of women 

{¶ 224} The state introduced other jailhouse letters from McKelton to 

Crystal Evans that, according to McKelton, were not relevant. These letters did 

include profanity, sexually explicit content, and racial comments. But they were 

probative of his relationship with Crystal, and the state was entitled to explore that 

relationship because she was his alibi. McKelton offers no explanation of how this 

evidence unfairly prejudiced him. 
January Term, 2016 

57 

{¶ 225} The jury also heard a recorded jailhouse phone call in which 

McKelton swore at Dumas repeatedly and demanded that she bring him money. 

During the conversation, Dumas told McKelton that she did not wish to be involved 

with him now that he had a son with Crystal. This evidence was relevant to explore 

Dumas’s potential bias in favor of McKelton. And contrary to McKelton’s 

suggestions, the state did not improperly rely on her testimony to encourage 

inferences about his treatment of all women. 

{¶ 226} Charles Bryant testified that McKelton advised him that “females 

can’t be trusted,” are “good with lying,” and have to be watched. McKelton then 

referred to Allen as “scandalous and running her mouth.” The state introduced this 

evidence to show the course of the conversation in which McKelton confessed to 

murdering Allen and to suggest a possible motive for that murder—McKelton did 

not trust Allen. But the state did not imply that McKelton’s general attitude towards 

all women explained why he killed Allen. Cf. State v. Johnson, 71 Ohio St.3d 332, 

340, 643 N.E.2d 1098 (1994) (prosecutor impermissibly relied on defendant’s 

general hatred of women—“evidence of a character trait” under Evid.R. 404(A)—to 

prove that he killed a particular woman). Thus, the trial court reasonably allowed the 

evidence under Evid.R. 403. 

m. Gruesome photographs 

{¶ 227} The state introduced 15 autopsy photographs of Allen’s body, each 

capturing her injuries from a different angle or perspective. Allen’s body appears 

decomposed and discolored in some photographs. Others show extracted body 

parts. 

{¶ 228} This court “strongly caution[s] judicious use” of gruesome photos 

in capital cases. Morales, 32 Ohio St.3d at 259, 513 N.E.2d 267. Accordingly, a 

gruesome photograph is admissible only if its “probative value * * * outweigh[s] 

the danger of prejudice to the defendant.” Id. at 258. Moreover, even a photo that 

satisfies the balancing test is inadmissible if it is “repetitive or cumulative.” Id.;
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see State v. Thompson, 33 Ohio St.3d 1, 9, 514 N.E.2d 407 (1987). A trial court’s 

decision that a photo satisfies this standard is reviewable only for abuse of 

discretion. See State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 

303, ¶ 69. 

{¶ 229} Here, the state had the burden to prove that McKelton killed Allen 

and committed gross abuse of her corpse, and these photos were probative of those 

facts. See State v. Maurer, 15 Ohio St.3d 239, 265, 473 N.E.2d 768 (1984). The 

photos were not repetitive or cumulative, because they depicted different injuries 

to the face and neck, as well as insect activity that the coroner used to estimate time 

of death. Cf. State v. Watson, 61 Ohio St.3d 1, 7, 572 N.E.2d 97 (1991) (five 

autopsy photos of the same gruesome head wound were unnecessary and 

cumulative since the defense had not disputed the manner and cause of death). 

{¶ 230} McKelton also argues that the risk of undue prejudice was 

especially great because one juror was prone to faint upon viewing gruesome 

images. But the defense objected to excusing the juror for cause. In addition, the 

record indicates that this juror responded only to photos of Evans, not to those of 

Allen. Thus, there is no reason to believe the juror was unduly swayed by the 

photos of Allen. 

{¶ 231} Finally, McKelton says that the autopsy photos should not have 

been reintroduced at the mitigation phase. Defense counsel objected at trial, and 

the state argued that the photos were relevant to the crimes witnessed by Evans, 

which provided the basis for the aggravating circumstance at sentencing. The trial 

judge overruled the objection, but later instructed the jurors that they could consider 

the “evidence in terms of whether it tends to prove or disprove an aggravating 

circumstance[] of the case only,” and not for any other purpose. We must presume 

that the jurors followed this instruction. Loza, 71 Ohio St.3d at 79, 641 N.E.2d 

1082. 

 
January Term, 2016 

59 

n. Other “irrelevant or unfairly prejudicial evidence” 

{¶ 232} McKelton next alleges that the trial court erred by admitting 

“additional irrelevant or unfairly prejudicial evidence,” which was part of a 

prosecutorial “campaign to depict [him] as the type of person who would commit 

crimes like those charged.” 

{¶ 233} First, McKelton objects to hearsay testimony that his daughter had 

told Z.D. that he had “choked her mother with a phone cord” and warned Z.D. to 

“watch out for” Allen. We addressed this argument in our analysis of proposition 

of law No. 11. 

{¶ 234} Second, the prosecutor introduced a copy of The Anarchist 

Cookbook, a book published in 1971 “for entertainment purposes only,” that police 

had found in Allen’s master bedroom. This book’s author describes it as a volume 

“on all the subjects (from drugs, to weapons, to explosives) that are currently illegal, 

but the publisher added the following disclaimer: “its recipe should not be used as 

they do not pretend to be accurate.” The state argues that the book was relevant to 

establishing that McKelton lived in Allen’s house. But the state did not introduce 

evidence that the book belonged to McKelton. While the book appears to be at least 

partly satirical, given its title, the book should not have been admitted. But given the 

overwhelming evidence of McKelton’s guilt, its admission did not rise to the level of 

plain error. 

{¶ 235} Third, McKelton argues that the prosecutor asked Melinda Nagel, 

Allen’s physical therapist, an inflammatory, hypothetical question that was 

unsupported by the record. Generally, “[h]ypothetical questions directed to a 

witness must be based on facts supported by or adduced from the evidence.” Olsen 

v. Elec. Auto-Lite Co., 164 Ohio St. 283, 284, 130 N.E.2d 363 (1955). But here the 

defense introduced this line of inquiry on cross-examination by asking Nagel how 

she would have treated Allen if Allen had reported being hit with a baseball bat. 

The prosecutor “pick[ed] up on” this line of questioning on redirect, asking, “[I]f 
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60 

[Allen] had told you her boyfriend broke her ankle by slamming a car door on it 

repeatedly, would that have changed your treatment plan * * *?” This was a fair 

response to the defense’s cross-examination. 

{¶ 236} Fourth, Charles Bryant testified that he and McKelton had been 

driving around drinking when they discussed Allen. Bryant said that he had been 

smoking marijuana and drinking Grey Goose with cranberry, while McKelton had 

been drinking straight Grey Goose. These details lent credibility to Bryant’s 

testimony about McKelton’s confession by establishing the context of their 

conversation, and the trial court reasonably decided to admit them under Evid.R. 

403. 

{¶ 237} Bryant testified that he had met McKelton in jail when McKelton 

was charged with either intimidation of a witness or contempt of court. Any 

probative value in explaining the circumstances under which Bryant met McKelton 

was substantially outweighed by the danger of unfair prejudice because McKelton 

was on trial for an unrelated charge of witness intimidation. Even so, we find no 

basis to reverse for plain error; notably, McKelton was acquitted on the witnessintimidation charge in this case. 

{¶ 238} Finally, Marcus Sneed testified that he had known a man named 

“Fat Boy” who “[e]nded up alongside of a road.” According to Sneed, McKelton 

had talked to Sneed about setting Fat Boy up to be robbed. The trial court sustained 

a defense objection to this testimony and instructed the jury to disregard it. We 

presume that the jury followed the trial court’s instruction. See Loza, 71 Ohio St.3d 

at 79, 641 N.E.2d 1082. 

{¶ 239} For all these reasons, we reject McKelton’s fifth proposition of law. 

C. Jury Instructions and Verdict Forms 

1. Trial Phase: Proposition of Law No. 12 

{¶ 240} In proposition of law No. 12, McKelton argues that his 

constitutional rights were violated because (1) the state did not present a cohesive 
January Term, 2016 

61 

theory about Germaine Evans’s death, (2) the jury received instructions on 

complicity but no verdict form on it, and (3) the jury did not reach a unanimous 

verdict on whether McKelton was the principal offender or only complicit in 

Evans’s death. 

a. Factual background 

{¶ 241} The state charged McKelton with the aggravated murder of Evans 

under R.C. 2903.01(A). In a bill of particulars, the state alleged that McKelton 

caused Evans’s death “by a single gunshot wound to the back of the head.” 

McKelton later filed a notice of alibi for the night Evans died, but the state did not 

amend the bill of particulars to allege that McKelton had aided or abetted in the 

killing of Evans. 

{¶ 242} At trial, the state sometimes implied that McKelton himself had 

shot Evans and at other times suggested that McKelton had orchestrated the murder. 

The state offered no evidence of who fired the shot if not McKelton. Over defense 

objection, the trial court agreed to instruct the jury on complicity. The defense then 

requested a special verdict on that issue, arguing that the jury needed to 

unanimously find either that McKelton was the principal offender or that he had 

“solicited, aided, abetted or procured” the murder. The defense offered no legal 

authority that such an instruction was required. The trial court denied the request. 

b. Analysis 

{¶ 243} McKelton alleges several errors related to complicity. First, he 

says that the state’s inconsistent theories of the case “did not present sufficient 

evidence to find that McKelton killed Evans beyond a reasonable doubt.” We will 

address this argument in our analysis of McKelton’s sufficiency claim in 

proposition of law No. 13. 

{¶ 244} Second, he argues that the trial court erred by instructing the jury 

on complicity. Under R.C. 2923.03(F), “[a] charge of complicity may be stated in 

terms of [that] section, or in terms of the principal offense.” Accordingly, a 
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defendant who is “indicted for aggravated murder in terms of the principal offense 

* * * [is] on notice that evidence could be presented that he was either a principal 

offender, or an aider and abetter.” State v. Ensman, 77 Ohio App.3d 701, 703, 603 

N.E.2d 303 (11th Dist.1991). This is true even when the state has issued a bill of 

particulars that refers to a defendant only as the principal offender. See Hill v. 

Perini, 788 F.2d 406, 407-408 (6th Cir.1986). As a result, a jury instruction on 

complicity is proper as long as “the evidence adduced at trial could reasonably be 

found to have proven the defendant guilty as an aider and abettor.” State v. 

Perryman, 49 Ohio St.2d 14, 358 N.E.2d 1040 (1976), paragraph five of the 

syllabus, vacated on other grounds, 438 U.S. 911, 98 S.Ct. 3136, 57 L.Ed.2d 1156 

(1978). 

{¶ 245} McKelton argues that the Perryman rule applies only when the 

defendant presents evidence of complicity at trial, while here, the state introduced 

evidence to support a finding of complicity. But McKelton’s narrow reading of 

Perryman is inconsistent with the broad language of the court’s syllabus in that 

case, which “unequivocally approved of the practice of charging a jury regarding 

aiding and abetting even if the defendant was charged in the indictment as a 

principal.” State v. Payton, 8th Dist. Cuyahoga Nos. 58292 and 58346, 1990 WL 

48952, *8 (Apr. 19, 1990). 

{¶ 246} A complicity instruction was proper here because the evidence could 

reasonably be found to have proven that McKelton was an aider and abettor. The 

jury could have reasonably interpreted his admissions to having killed Evans to mean 

either that he was the principal offender or that he encouraged, cooperated with, or 

incited someone else to commit the crime. 

{¶ 247} Finally, McKelton objects that the trial court “created an 

unacceptable risk” that the jury did not unanimously convict him of aggravated 

murder because it did not provide for a separate verdict on complicity. Under Ohio 

law, “there is no distinction between a defendant convicted of complicity or as a 
January Term, 2016 

63 

principal offender.” State v. Alexander, 6th Dist. Wood No. WD-02-047, 2003-

Ohio-6969, ¶ 70. And the state need not even prove “[t]he identity of the principal 

* * * to establish the offense of complicity by aiding and abetting.” In re T.K., 109 

Ohio St.3d 512, 2006-Ohio-3056, 849 N.E.2d 286, paragraph one of the syllabus. 

{¶ 248} We have previously rejected claims that a unanimity instruction is 

required under similar circumstances. See State v. Stojetz, 84 Ohio St.3d 452, 458, 

705 N.E.2d 329 (1999). Likewise, several intermediate appeals courts have held 

that a trial court need not “provide separate jury verdict forms for the principal 

offense and complicity to that offense.” State v. Horton, 10th Dist. Franklin No. 

13AP-855, 2014-Ohio-2785, ¶ 10 (citing cases). By the same reasoning, we reject 

McKelton’s claim that the trial court was required to give specific instructions or 

provide for a separate verdict on complicity. 

{¶ 249} For these reasons, proposition of law No. 12 fails. 

2. Mitigation Phase: Proposition of Law No. 18 

{¶ 250} In proposition of law No. 18, McKelton claims that the trial judge 

improperly allowed the jury to determine which evidence from the trial phase was 

relevant for sentencing. McKelton did not raise this objection below, so plain-error 

review applies. See State v. Bey, 85 Ohio St.3d 487, 497, 709 N.E.2d 484 (1999). 

{¶ 251} After mitigation-phase opening arguments, the trial court advised 

the jury that the state had “reintroduced evidence * * * which is relevant to the 

aggravating circumstances.” He further explained that the jury would “not have all 

the evidence that [it] previously considered” because some of the trial-phase 

evidence was irrelevant to the jury’s sentencing consideration. 

{¶ 252} The trial judge told the jurors that they could consider only a single 

aggravating circumstance: that McKelton purposely killed Evans to prevent his 

testimony in a criminal proceeding. The jury was told to “consider all of the 

testimony and evidence relevant to the aggravating circumstance the Defendant was 

found guilty of committing.” Later the judge clarified, 
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Some of the evidence and testimony that you considered in the 

trial phase of this case may not be considered in this sentencing 

phase. For purposes of this proceeding, only that evidence 

admitted in the trial phase that is relevant to the aggravating 

circumstance and to any of the mitigating factors is to be 

considered by you. You will also consider all of the evidence 

admitted during this sentencing phase. 

The judge warned the jury to consider only those exhibits that he gave to the jury 

foreperson. 

{¶ 253} When evaluating claims that a trial judge left relevance 

determinations to the jury at the sentencing phase, we consider “the penalty-phase 

instructions as a whole.” State v. Neyland, 139 Ohio St.3d 353, 2014-Ohio-1914, 12 

N.E.3d 1112, ¶ 214. As long as the instructions “adequately informed the jury as to 

the evidence to consider during the penalty phase,” we will not find error. Id. We 

have rejected similar claims when instructions (1) limited the jury’s consideration of 

the guilt-phase evidence to the relevant aggravating circumstances and the mitigating 

factors, id., and (2) made it “clear that the jury would see only those guilt-phase 

exhibits that the trial judge admitted and deemed relevant.” Lang, 129 Ohio St.3d 

512, 2011-Ohio-4215, 954 N.E.2d 596, at ¶ 251. 

{¶ 254} Here, the trial judge satisfied both requirements. Viewing the 

instructions as a whole, we find that it is reasonable to conclude that “the jury 

understood that they would see only the evidence that the trial judge deemed 

relevant.” (Emphasis sic.) State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 

854 N.E.2d 150, ¶ 152. Moreover, it was clear that only one aggravating 

circumstance was relevant for sentencing purposes. 

{¶ 255} Accordingly, we reject proposition of law No. 18. 
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65 

D. Prosecutorial Misconduct: Propositions of Law Nos. 8 and 17 

{¶ 256} In proposition of law Nos. 8 and 17, McKelton alleges due-process 

violations because of cumulative prosecutorial misconduct. 

{¶ 257} When reviewing a claim of prosecutorial misconduct, “[t]he 

relevant question is whether the prosecutors’ comments ‘so infected the trial with 

unfairness as to make the resulting conviction a denial of due process.’ ” Darden 

v. Wainwright, 477 U.S. 168, 181, 106 S.Ct. 2464, 91 L.Ed.2d 144 (1986), quoting 

Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 

(1974). To answer that question, we consider whether the conduct was improper 

and whether it prejudicially affected the defendant’s substantial rights. Maxwell, 

139 Ohio St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, at ¶ 243. In evaluating 

prejudice, we determine the effect of the misconduct “on the jury in the context of 

the entire trial.” Keenan, 66 Ohio St.3d at 410, 613 N.E.2d 203. 

1. Good-Faith Basis for Questions 

{¶ 258} McKelton argues that the prosecutor lacked a good-faith basis to 

ask questions posed to Mindie Nagel and Audrey Dumas. Because McKelton did 

not raise this objection at trial, the prosecutor did not have an opportunity to explain 

the basis for his questions on the record. Under these circumstances, we presume 

that a good-faith basis existed. Gillard, 40 Ohio St.3d at 231, 533 N.E.2d 272; 

Blackshere, 1997 WL 82808, at *4. 

2. Inflammatory Victim-Impact Evidence 

{¶ 259} McKelton objects that the prosecutor improperly introduced 

inflammatory victim-impact evidence. Victim-impact evidence that relates only 

“to the personal characteristics of the victim and the emotional impact of the crimes 

on the victim’s family,” Payne v. Tennessee, 501 U.S. 808, 817, 111 S.Ct. 2597, 

115 L.Ed.2d 720 (1991), is generally inadmissible at the trial phase, but such 

evidence can be admissible if it also “relat[es] to the facts attendant to the offense,” 

State v. Fautenberry, 72 Ohio St.3d 435, 440, 650 N.E.2d 878 (1995). 
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{¶ 260} The alleged victim-impact testimony that McKelton identifies is 

either not the victim-impact testimony discussed in Payne, which relates only to the 

victim’s personal characteristics or the emotional impact on the victim’s family, or 

it relates only to the facts attendant to one of the charged offenses. See id. As such, 

this evidence cannot form the basis of a misconduct claim. 

3. Character Evidence

{¶ 261} According to McKelton, the prosecutor repeatedly presented “him 

as a cold, unrepentant criminal who used threats to control people.” McKelton cites 

three exchanges that revealed information about his criminal history and drug 

activity: (1) Detective David Gregory testified that he had listened to “hundreds of 

hours of” recordings of McKelton’s jailhouse phone calls, (2) Crystal Evans 

testified that McKelton “probably was selling drugs” in 2009, and (3) Detective 

Keith Witherell testified about the “Battles” letter. Detective Gregory’s testimony 

was not improper character evidence; it was relevant to establish that Gregory could 

identify McKelton’s voice. And we have already explained in our analysis of 

proposition of law No. 5 that Crystal’s and Witherell’s statements were properly 

admitted. 

{¶ 262} Because the evidence cited by McKelton was properly admitted, 

we reject his claim that the prosecutor committed misconduct by introducing it. 

4. Wilson’s Prior Inconsistent Statement

{¶ 263} McKelton alleges that the prosecutor engaged in misconduct by 

using Wilson’s prior statement as substantive evidence. As explained in the 

analysis of proposition of law No. 6, the prosecutor did err, but the error was not 

outcome-determinative. Likewise, this conduct, viewed in isolation, did not 

prejudicially affect McKelton’s substantial rights. 

5. Leading Questions

{¶ 264} McKelton argues that the prosecutor engaged in misconduct by 

“improperly ask[ing] leading questions of several witnesses.” He claims that “[t]he 
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67 

State essentially testified for its informants” on redirect. Beyond this broad assertion, 

however, McKelton does not analyze any specific questions asked, or how they 

prejudiced him. We therefore reject this claim of misconduct. 

{¶ 265} McKelton also suggests that the prosecutor committed misconduct 

by asking leading questions even after the trial court sustained defense objections 

on that basis. We have recognized that prosecutorial misconduct can occur when a 

prosecutor continues to ask leading questions even after the trial court has sustained 

objections on that basis. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266, 900 N.E.2d 

565, at ¶ 170. But in Diar, the prosecutor pursued a line of leading questions 

immediately after the court ruled that they were improper. By contrast, McKelton 

argues that the prosecutor should not have put leading questions to other witnesses 

after the trial court sustained objections to leading questions. Moreover, McKelton 

fails to identify specific leading questions that the prosecutor should have refrained 

from asking in light of the trial court’s ruling. 

6. Disclosure of an Incorrect Witness Address 

{¶ 266} McKelton objects that the state engaged in misconduct by giving 

the defense an outdated address for one of its witnesses, Andre Ridley. The 

prosecutor explained that the error was unintentional and argued that no prejudice 

had occurred because McKelton’s investigator had not even gone to the address 

provided. The trial judge offered to remedy the error by permitting the defense 

investigator to speak with Ridley and allowing the defense to call Ridley as a 

witness during its case-in-chief. Defense counsel said they would let the court 

know whether they wanted to pursue that course by the next morning, but there is 

no further discussion of the issue on the record. The defense called no witnesses in 

its case-in-chief. 

{¶ 267} Under these circumstances, McKelton has failed to establish 

prejudice. 

 
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7. Mischaracterizing Evidence 

{¶ 268} In addition, McKelton claims that the prosecutor mischaracterized 

three pieces of evidence adduced at trial. He asserts that these “ ‘improper 

insinuations and assertions calculated to mislead the jury’ ” violated his right to a 

fair trial, quoting Berger v. United States, 295 U.S. 78, 85 (1935). He did not object 

at trial, so plain-error review applies. State v. Hanna, 95 Ohio St.3d 285, 2002-

Ohio-2221, 767 N.E.2d 678, ¶ 84. 

{¶ 269} First, during closing argument, the prosecutor referred to one of 

McKelton’s tattoos, which had the words “scandalous life” in it, and asked the jury, 

“Do you remember hearing scandalous come up again?” He then said that Charles 

Bryant had testified that McKelton had “called [Allen] a scandalous bitch” and had 

confessed to choking her. According to the trial transcript, however, Bryant 

testified that McKelton, using a “whole lot of foul words,” had said that Allen “was 

scandalous and running her mouth.” 

{¶ 270} There is some disparity between the prosecutor’s description of 

Bryant’s testimony and his actual testimony. However, before closing arguments 

began, the trial court instructed the jury: 

[I]f the attorneys represent facts and they are different than 

what you recall, you are to rely upon your collective memory 

during deliberations to decide whether or not those facts have 

been proven or not proven based upon the instructions of law. 

Here, “a review of the challenged remarks demonstrates that the prosecutor simply 

set forth what he thought the evidence showed.” State v. Banks, 8th Dist. Cuyahoga 

No. 97084, 2012-Ohio-2495, ¶ 41. And “[e]ven if the prosecutor’s description of 

the witness’s testimony was inaccurate, the trial court nevertheless instructed the 

jury to rely on its own recollection of the evidence.” Id. 
January Term, 2016 

69 

{¶ 271} Second, the prosecutor argued that Gerald Wilson, who had 

recanted on the witness stand, addressed McKelton as he left the courtroom. 

According to the prosecutor, Wilson “got up and looked at Calvin and goes, I got 

you. I got you, bud or bro, whatever that last word was. You’ll have to use your 

memory. He looked right at him, nodded. I got you back.” The transcript indicates 

that Wilson said, “Later on, Bro.” 

{¶ 272} As with Bryant’s testimony, the prosecutor merely related his own 

observations about Wilson’s testimony, which were not entirely confirmed by the 

record. But the jury was told to rely on its own recollection of the evidence, and 

McKelton offers no evidence that the jury disregarded that instruction. 

{¶ 273} Finally, the prosecutor argued that McKelton had asked Audrey 

Dumas to provide an alibi for both murders. According to the prosecutor, after he 

killed Evans, McKelton thought, “I’m going to be with Crystal, and I’m going to 

have Audrey blowing my phone up all night long, so that later I can say, hey, I’m 

asleep with Crystal.” The prosecutor also argued that McKelton expected Dumas 

to play her “role”—whether it was providing McKelton an alibi or bringing him 

money—and if she failed to do so, McKelton would threaten her. 

{¶ 274} A prosecutor is entitled, as is defense counsel, to “wide latitude in 

summation as to what the evidence has shown and what reasonable inferences may 

be drawn therefrom.” State v. Stephens, 24 Ohio St.2d 76, 82, 263 N.E.2d 773 

(1970). Counsel are permitted to “present their most convincing positions.” State 

v. Phillips, 74 Ohio St.3d 72, 90, 656 N.E.2d 643 (1995). Here, the prosecutor 

reasonably exercised this latitude by drawing on Dumas’s testimony, phone 

records, and other evidence to argue that she was not a credible alibi witness. We 

conclude that these comments were proper. 

 
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8. Prosecutorial Comments about McKelton’s Unsworn Statement 

{¶ 275} McKelton says that the cumulative effect of the prosecutor’s 

improper comments about, among other subjects, McKelton’s unsworn statement 

during mitigation-phase closing arguments rendered his trial unfair. 

{¶ 276} McKelton’s unsworn statement did not mention Missy Allen or 

Germaine Evans. In closing argument, the prosecutor said: 

You heard Calvin McKelton tell you, let me talk to you about 

why we’re here. And you never heard him say Missy’s name. 

You never heard him talk about Germaine Evans’ death. * * * 

And you never heard Calvin McKelton say a single word about 

it. 

{¶ 277} When a defendant chooses to make an unsworn statement, a 

prosecutor “may comment that the defendant’s statement has not been made under 

oath or affirmation.” State v. DePew, 38 Ohio St.3d 275, 528 N.E.2d 542 (1988), 

paragraph two of the syllabus. However, misconduct occurs when a prosecutor 

“refer[s] not only to credibility but also to appellant’s silence on particular issues.” 

Lorraine, 66 Ohio St.3d at 419, 613 N.E.2d 212. 

{¶ 278} Here, the state concedes that its closing argument “cross[ed] [the] 

line in a couple of passing phrases.” The prosecutor erred by commenting on 

McKelton’s silence regarding Allen and Evans. But viewed in the context of the 

weight of the aggravating circumstance, these statements did not affect McKelton’s 

substantial rights. 

9. Reference to Improper Aggravating Circumstances 

{¶ 279} McKelton says that the prosecutor “improperly referred to facts 

unrelated to the aggravating circumstance as ‘the weight that goes on the side of 

that specification.’ ” 
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71 

{¶ 280} During the sentencing phase of a capital trial, a prosecutor “may 

introduce and comment upon * * * any evidence raised at trial that is relevant to 

the aggravating circumstances specified in the indictment of which the defendant 

was found guilty.” State v. Gumm, 73 Ohio St.3d 413, 653 N.E.2d 253 (1995), 

syllabus. But the prosecutor may not “describe nature and circumstances evidence 

as a statutorily defined aggravating circumstance.” Id. at 422. See State v. Davis, 

38 Ohio St.3d 361, 367-373, 528 N.E.2d 925 (1988)). 

{¶ 281} Here, a single aggravating circumstance was before the jury at 

sentencing: McKelton killed Evans to prevent his testimony in a criminal 

proceeding. R.C. 2929.04(A)(8). The prosecutor directed the jury’s attention to 

this specification and argued that the following is “weight that goes on the side of 

that specification”: (1) Evans knew that McKelton killed Allen, dumped her body, 

and attempted to burn her house, (2) McKelton knew that Evans was aware of these 

facts and was the only person who could connect him to those crimes, and (3) 

Evans’s dead body was found in a park, and McKelton never paid his respects. 

{¶ 282} The prosecutor should not have discussed McKelton’s failure to 

pay respect to Evans, but, viewed in context, this error did not affect McKelton’s 

substantial rights. The prosecutor made clear that only one specification was at 

issue and advised the jury to weigh that against all the mitigation evidence. In 

addition, the trial judge accurately instructed the jury on the weighing process and 

told the jurors that they could “not consider the nature and circumstances of the 

crime as an aggravating circumstance.” The remaining facts regarding the crimes 

witnessed by Evans tended to prove the essential elements of the specification, and 

the prosecutor’s discussion of those facts was therefore proper. 

10. Prosecutor’s Focus on Allen, Rather Than Evans 

{¶ 283} Next, McKelton objects that the prosecutor focused more on 

Allen’s death than Evans’s during the mitigation phase, even though the killing of 
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Evans was the capital offense. By doing so, he says, the prosecutor turned the one 

aggravating circumstance at issue into two. 

{¶ 284} As already noted, during the mitigation phase of a capital trial, a 

prosecutor may introduce evidence of and comment on any aggravating 

circumstance for which a defendant was convicted. Gumm, 73 Ohio St.3d at 421, 

653 N.E.2d 253. Here, the aggravating circumstance is predicated on the victim’s 

having witnessed another criminal offense. Accordingly, the prosecutor was 

permitted to discuss the underlying criminal offenses. We therefore reject 

McKelton’s argument that the prosecutor turned one aggravating circumstance into 

two. 

11. Reference to the Prosecutor’s Childhood 

{¶ 285} McKelton claims that the prosecutor erroneously compared their 

childhoods during sentencing. 

{¶ 286} “Neither the defense nor the prosecution may refer to evidence that 

is not in the record.” State v. Brown, 38 Ohio St.3d 305, 316, 528 N.E.2d 523 

(1988), fn. 7. Accordingly, counsel should not state facts of his or her own personal 

experience during closing arguments. See State v. Beck, 2010 SD 52, 785 N.W.2d 

288, ¶ 16; State v. Williams, 96-1023 (La. 1/2/1998), 708 So.2d 703, 716. When a 

prosecutor did refer to matters outside the record, we found no prejudice because 

the reference was “short, oblique, and justified as a reply to defense arguments and 

elicit[ed] no contemporaneous objection.” Lott, 51 Ohio St.3d at 166, 555 N.E.2d 

293. 

{¶ 287} In closing argument, defense counsel first raised the issue of 

childhood, contrasting McKelton’s background to his own. He stated he had been 

raised in an upper-middle-class environment by parents who had high expectations 

for their children. He contrasted that to the environment McKelton was raised in, 

“where he had no expectations, where he had to fend for himself, * * * where 
January Term, 2016 

73 

violence, robbery, prostitution and drugs are [the] norm.” He said it was rare for 

people to overcome those obstacles. 

{¶ 288} In rebuttal, the prosecutor cited his own childhood experiences: “I 

know what it’s like to grow up in the projects. I was sitting at the kitchen table, 

had a single mother open up a can of Spaghetti’Os and offer those to everybody. I 

didn’t grow up to be a murder[er].” 

{¶ 289} The prosecutor erred by alluding to his own personal experience, 

but no prejudice occurred because all three Lott criteria are satisfied here. The 

reference was brief, the comments were justified in response to defense counsel’s 

comparison of McKelton’s childhood to his own, and McKelton did not object at 

trial. Under these circumstances, no prejudicial error occurred. 

12. Autopsy Photos 

{¶ 290} McKelton recasts as prosecutorial misconduct his claim that it was 

error to reintroduce Allen’s autopsy photos during mitigation. As explained in the 

analysis of proposition of law No. 5, the trial court did not err in this regard. “If 

the evidence was properly admitted, then the prosecutor’s decision to offer it cannot 

form the basis of a misconduct claim.” Mammone, 139 Ohio St.3d 467, 2014-Ohio1942, 13 N.E.3d 1051, at ¶ 116. 

13. Cumulative Prejudice 

{¶ 291} Finally, McKelton argues that the cumulative effect of the 

prosecutor’s misconduct deprived him of a fair trial, undermining his conviction 

and his sentence. Viewed in context of the trial, we cannot conclude that the 

prosecutor’s conduct prejudicially affected McKelton’s substantial rights. See 

Keenan, 66 Ohio St.3d at 410, 613 N.E.2d 203. 

{¶ 292} For all these reasons, we reject proposition of law Nos. 8 and 17. 

E. Ineffective Assistance of Counsel: Proposition of Law Nos. 15 and 16 

{¶ 293} In his 15th and 16th propositions of law, McKelton argues that 

counsel provided constitutionally ineffective assistance. To establish ineffective 
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assistance, McKelton must (1) show that counsel’s performance “fell below an 

objective standard of reasonableness,” as determined by “prevailing professional 

norms” and (2) demonstrate “a reasonable probability that, but for counsel’s 

unprofessional errors, the result of the proceeding would have been different.” 

Strickland, 466 U.S. at 688, 694, 104 S.Ct. 2052, 80 L.Ed.2d 674. When 

performing this analysis, we “indulge a strong presumption that counsel’s conduct 

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

1. Trial Phase 

{¶ 294} McKelton argues that defense counsel “failed in several ways to 

provide a basic defense” for him at the trial phase. 

{¶ 295} First, McKelton recasts several propositions of law as ineffective 

assistance because trial counsel failed to object. We have rejected each of the 

underlying propositions on its merits. The same reasoning, taken to its logical 

conclusion, also justifies our denial of McKelton’s Strickland claim. 

{¶ 296} Second, McKelton says that trial counsel should have voir dired the 

jury after “a courtroom incident” that occurred on October 8. As an unidentified 

man left the courtroom for an afternoon break, he “said something towards the 

prosecution and towards the defense table.” According to defense counsel, 11 

jurors were in the courtroom at the time of the “outburst.” The judge offered “to 

voir dire the jury * * * to make sure that none of [the jurors] saw anything which 

they believe would in any way prejudice their ability to be fair and impartial.” 

Defense counsel declined the offer. McKelton now claims that defense counsel 

should have accepted. 

{¶ 297} This “court generally will not second-guess counsel’s judgments 

about what questions to ask on voir dire” when reviewing claims of ineffective 

assistance during pretrial voir dire. State v. Johnson, 112 Ohio St.3d 210, 2006-

Ohio-6404, 858 N.E.2d 1144, ¶ 128. This deference is appropriate because 

“counsel is in the best position to determine whether any potential juror should be 
January Term, 2016 

75 

questioned and to what extent.” State v. Murphy, 91 Ohio St.3d 516, 539, 747 

N.E.2d 765 (2001). 

{¶ 298} We apply the same deference to trial counsel’s decision here. Trial 

counsel observed the incident, which he described as an “outburst” that “happened 

very quickly.” Under the circumstances, counsel could reasonably decide not to 

question the jury, and McKelton was not prejudiced by that decision. 

{¶ 299} Third, McKelton argues that trial counsel were ineffective for not 

trying to sever the first two counts of the indictment. Ohio “law favors joining 

multiple offenses in a single trial under Crim.R. 8(A) if the offenses charged ‘are 

of the same or similar character.’ ” Lott, 51 Ohio St.3d at 163, 555 N.E.2d 293, 

quoting Crim.R. 8(A). But a defendant is entitled to severance under Crim.R. 14 if 

he can affirmatively show prejudice. Id. Even then, the state can overcome a 

defendant’s claim of prejudicial joinder by showing either that (1) it could have 

introduced evidence of either of the offenses, if they had been severed for trial, as 

“other acts” under Evid.R. 404(B) or (2) the “evidence of each crime joined at trial 

is simple and direct.” Id. 

{¶ 300} It is unlikely that the trial court would have granted severance. 

Counts One and Two charged McKelton with felonious assault and domestic 

violence for the May 2008 incident that resulted in Allen’s broken ankle. Counts 

Four and Five charged him with felonious assault and domestic violence for the 

July 2008 incident that resulted in Allen’s death. These four offenses are of similar 

character, since they allege that McKelton committed the same offenses against the 

same victim on two different occasions. See State v. Miller, 105 Ohio App.3d 679, 

692, 664 N.E.2d 1309 (4th Dist.1995). And the evidence of each offense was “not 

rendered more complex or confusing by joining the two counts of domestic 

violence.” Id. Thus, McKelton would not likely have prevailed on a severance 

motion, and his trial counsel were not ineffective for failing to object. 
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{¶ 301} Finally, McKelton argues that trial counsel provided ineffective 

assistance during plea negotiations. McKelton says that he rejected counsel’s 

advice to take a plea bargain only because they had failed to adequately 

communicate with him or investigate his case. But this claim is purely speculative. 

See State v. Keith, 79 Ohio St.3d 514, 536-537, 684 N.E.2d 47 (1997) (claims that 

require evidence outside the record are not appropriately considered on direct 

appeal). In addition, this assertion is undermined by evidence in the record. At a 

pretrial hearing, McKelton told the trial judge that he had rejected the plea offer 

because he wanted an opportunity “to prove [his] innocence.” 

{¶ 302} McKelton’s reliance on two recent United States Supreme Court 

decisions is also unavailing. See Missouri v. Frye, __ U.S. __, 132 S.Ct. 1399, 182 

L.Ed.2d 379 (2012); Lafler v. Cooper, __ U.S. __, 132 S.Ct. 1376, 182 L.Ed.2d 398 

(2012). In Frye, the Supreme Court held that trial counsel may be ineffective if 

they fail to communicate the terms of a plea offer to a defendant. Frye at 1408. 

And in Cooper, the Supreme Court held that prejudice may arise under Strickland 

if counsel’s deficient performance caused a defendant to reject a plea deal that 

would have resulted in a lower sentence. Cooper at 1385. Here the record indicates 

that McKelton’s trial counsel explained the terms of the plea offer, but he rejected 

their advice to accept the deal. 

2. Mitigation Phase 

{¶ 303} McKelton also alleges several instances of mitigation-phase 

ineffective assistance of counsel. 

{¶ 304} First, he contends that trial counsel’s mitigation presentation was 

“barebones and not cohesive.” “The presentation of mitigating evidence is a matter 

of trial strategy,” State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 

433, ¶ 189, even if counsel’s chosen strategy proves unsuccessful, State v. Frazier, 

61 Ohio St.3d 247, 255, 574 N.E.2d 483 (1991). Here, defense counsel presented 

McKelton’s unsworn statement and the testimony of three witnesses about his 
January Term, 2016 

77 

difficult childhood and how he cares for his own children. On its face, we cannot 

say that this mitigation presentation was deficient. 

{¶ 305} But even if McKelton could prove deficient performance, he cannot 

establish Strickland prejudice on this record. To do so, he would need to introduce 

evidence to prove that “sufficient mitigating evidence existed that would have 

called for a sentence less than death.” State v. Dixon, 101 Ohio St.3d 328, 2004-

Ohio-1585, 805 N.E.2d 1042, ¶ 62. This argument is “not appropriately considered 

on a direct appeal.” State v. Madrigal, 87 Ohio St.3d 378, 391, 721 N.E.2d 52 

(2000). 

{¶ 306} Second, McKelton objects that trial counsel were unprepared for 

mitigation because they did not present any mitigation experts. Pursuant to defense 

counsel’s application, the trial judge ordered $5,000 each “for an investigator, a 

defense psychologist, and a mitigation expert.” The next month, the parties 

informed the trial court that there was no reason to pursue any competency issues. 

At that time, the judge asked defense counsel whether the investigator, forensic 

scientist, and mitigation expert had “been retained and * * * [were] hard at work.” 

Defense counsel said yes. 

{¶ 307} The defense counsel clearly stated that they had retained various 

experts. It is unusual for defense counsel not to present experts at a mitigation 

hearing. Yet we have never held that presenting expert testimony in mitigation is 

per se deficient performance. See, e.g., State v. McGuire, 80 Ohio St.3d 390, 399, 

686 N.E.2d 1112 (1997) (hiring a mitigation specialist is not “a requirement of 

effective assistance”). In fact, depending on the expert’s findings, such testimony 

may have been grounds for an ineffective claim. Therefore, trial counsel may have 

reasonably decided not to present a mental-health professional or a mitigation 

specialist for strategic reasons. Indeed, the day before the mitigation hearing began, 

counsel reassured the court that they had had a full opportunity to explore mitigation 

experts and “everything that is necessary to present mitigation in this case.” 
SUPREME COURT OF OHIO

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{¶ 308} In any event, McKelton cannot show that he was prejudiced by the 

alleged error. He does not identify any specific information that additional experts 

would have uncovered or explain why that information would have prompted the 

jury to recommend a life sentence. In fact, it would be impossible for him to make 

such a showing without relying on evidence outside the record, which is not 

permissible in a direct appeal. Keith, 79 Ohio St.3d at 536-537, 684 N.E.2d 47. 

{¶ 309} Third, McKelton argues that defense counsel’s closing argument 

was “devoid of advocacy and virtually gave the jury all the reasons it needed to 

vote for death.” Trial counsel “are afforded wide latitude during closing 

arguments.” Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, at ¶ 192. 

Accordingly, “[d]ebatable trial tactics generally do not constitute a deprivation of 

effective counsel.” Id. 

{¶ 310} Defense counsel’s closing argument can be read as an effort to gain 

the jurors’ trust and to give them a reason to impose a life sentence. He 

acknowledged the jury’s guilt determination and emphasized that the mitigation 

hearing was not about trying to excuse or minimize McKelton’s conduct. Given 

the severity of McKelton’s crime, he advised the jurors to consider only the two 

most severe sentencing options available to them: death or life imprisonment 

without parole. 

{¶ 311} Counsel then urged the jury to impose a life sentence, stressing two 

significant mitigating factors: McKelton’s “character and his background.” After 

reassuring the jurors that they need not like McKelton or his actions, counsel 

explained that he was a product of his difficult upbringing and that he knew only 

how “to sell drugs and be a menace to society.” He argued that McKelton could 

function in prison, even if he had not been able to “conform his conduct to the 

requirements of a civilized society.” With a life sentence, he would be able to guide 

his three children away from his own path. 
January Term, 2016 

79 

{¶ 312} This closing argument was not devoid of advocacy and it did not 

invite a verdict of death. Instead, counsel attempted to acknowledge the jurors’ 

likely feelings about McKelton and his actions while still giving them a reason to 

spare his life. Viewed in context of the entire closing, the statements McKelton 

objects to were part of a trial strategy meant to persuade the jury to not impose a 

death sentence. See State v. Ahmed, 103 Ohio St.3d 27, 2004-Ohio- 4190, 813 

N.E.2d 637, ¶ 160. As a result, this allegation of ineffective assistance fails. 

{¶ 313} Additionally, McKelton argues that his counsel were ineffective for 

not questioning a juror who was dismissed during mitigation-phase deliberations. 

Nearly six hours after deliberations began, the jury sent the trial judge a note stating 

that one juror was “not participating in this decision.” The trial court later indicated 

that the juror in question had told the bailiff that she had hoped to leave because 

her mother was scheduled to have surgery the next day. At defense counsel’s 

request, the trial judge voir dired the juror. She said that she needed to be in 

Virginia the next morning and could not “think of anything else.” The judge then 

clarified: “So unequivocally you just do not want to continue and you’re refusing 

to participate in any further discussions; is that an accurate statement?” The juror 

agreed. The prosecution and defense declined to question the juror further, and the 

court excused her. Defense counsel noted an objection for the record to excusing 

the juror, but he could not identify any alternative way to proceed. 

{¶ 314} McKelton asserts that trial counsel should have questioned the juror 

further. He speculates that the juror—who did not ask to be excused—might have 

been a holdout but that she did not want to admit it on the record or in front of the 

media. But trial counsel were in the best position to evaluate whether further voir 

dire was necessary to ascertain the juror’s true reason for refusing to participate. 

See Murphy, 91 Ohio St.3d at 539, 747 N.E.2d 765. And we “generally will not 

second-guess counsel’s judgments about what questions to ask on voir dire.” 

Johnson, 112 Ohio St.3d 210, 2006-Ohio-6404, 858 N.E.2d 1144, at ¶ 128. More 
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important, McKelton’s assertion that the juror was a holdout is purely speculative, 

so he cannot establish prejudice. 

{¶ 315} McKelton’s claims of ineffective assistance are unpersuasive. We 

reject proposition of law Nos. 15 and 16. 

F. Trial Court Bias: Proposition of Law No. 19 

{¶ 316} In proposition of law No. 19, McKelton argues that his trial was 

fundamentally unfair as a result of the trial judge’s bias and failure to properly 

control the presentation of evidence. 

{¶ 317} In support of this claim, McKelton cites the errors alleged in 

proposition of law Nos. 1 to 13, 17, 18, and 19 as proof that the trial judge 

“continuously and to the point of showing bias permit[ted] the admission of 

prejudicial, irrelevant and otherwise inadmissible evidence.” He also claims that 

the trial judge erroneously considered that evidence when imposing a death 

sentence. But short of pointing to errors alleged elsewhere in his brief, McKelton 

does not cite any additional proof of judicial prejudice or bias. 

{¶ 318} As a general rule, “a judge’s adverse rulings, even erroneous ones, 

are not evidence of bias or prejudice.” In re Disqualification of Fuerst, 134 Ohio St.3d 

1267, 2012-Ohio-6344, 984 N.E.2d 1079, ¶ 14; see also State v. Sanders, 92 Ohio St.3d 

245, 278, 750 N.E.2d 90 (2001). And nothing else in the record supports McKelton’s 

claim of bias. 

{¶ 319} We reject proposition of law No. 19. 

G. Cumulative Error: Proposition of Law No. 21 

{¶ 320} In proposition of law No. 21, McKelton argues that his convictions 

and sentence should be reversed on grounds of cumulative error. 

{¶ 321} Under the doctrine of cumulative error, “a conviction will be 

reversed when the cumulative effect of errors in a trial deprives a defendant of a 

fair trial even though each of the numerous instances of trial-court error does not 
January Term, 2016 

81 

individually constitute cause for reversal.” State v. Powell, 132 Ohio St.3d 233, 

2012-Ohio-2577, 971 N.E.2d 865, ¶ 223. 

{¶ 322} As explained above, several errors occurred at McKelton’s trial, 

none of which rose to the level of reversible error. But errors “cannot become 

prejudicial by sheer weight of numbers.” State v. Hill, 75 Ohio St.3d 195, 212, 661 

N.E.2d 1068 (1996); see also State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio5048, 873 N.E.2d 1263, ¶ 241. And here we are unconvinced that the cumulative 

effect of these errors deprived McKelton of a fair trial. 

{¶ 323} We reject proposition of law No. 21. 

H. Sufficiency and Manifest Weight: Proposition of Law No. 13 

{¶ 324} In proposition of law No. 13, McKelton challenges both the 

sufficiency and manifest weight of the evidence to convict him for the aggravated 

murder of Evans. 

1. Sufficiency of the Evidence 

{¶ 325} To resolve a sufficiency challenge, we must determine “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. Ohio’s aggravated-murder statute provides that 

“[n]o person shall purposely, and with prior calculation and design, cause the death 

of another.” R.C. 2903.01(A). Thus, the jury had to find beyond a reasonable doubt 

that McKelton acted purposely, with prior calculation and design, to cause Evans’s 

death. 

{¶ 326} At trial, Marcus Sneed and Lemuel Johnson both testified that 

McKelton had confessed to murdering Evans. Sneed testified that McKelton stated 

that he had to murder Evans because Evans was the only one who could link 

McKelton to Allen’s murder. And, according to Johnson, McKelton said he was 

experienced with killing witnesses such as Evans. Johnson claimed that when a 
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detective called Crystal looking for Evans, McKelton decided to kill Evans before 

the detective found him. 

{¶ 327} Viewed in a light most favorable to the prosecution, a rational juror 

could have found the essential elements of aggravated murder beyond a reasonable 

doubt based on this evidence alone. 

2. Manifest Weight 

{¶ 328} To evaluate a manifest-weight claim, we must review the entire 

record, weigh the evidence and all reasonable inferences, and consider the 

credibility of all the witnesses. State v. Thompkins, 78 Ohio St.3d 380, 387, 678 

N.E.2d 541 (1997). The court must decide “ ‘whether in resolving conflicts in the 

evidence, the jury clearly lost its way and created such a manifest miscarriage of 

justice that the conviction must be reversed.’ ” Id., quoting State v. Martin, 20 Ohio 

App.3d 172, 175, 485 N.E.2d 717 (1st Dist.1983). 

{¶ 329} McKelton points to gaps in the state’s evidence and its reliance on 

informants as reasons to overturn his conviction. The state’s case against McKelton 

did not include eyewitness testimony, the weapon used to murder Evans, or any 

forensic evidence linking him to Evans’s body or the crime scene. But Johnson and 

Sneed did testify that McKelton admitted responsibility for Evans’s murder. And 

contrary to McKelton’s suggestion, we need not entirely dismiss the testimony of 

these witnesses just because they are jailhouse informants. Indeed, the credibility 

of the informants is bolstered by other evidence that corroborates aspects of their 

testimony. 

{¶ 330} Although there are gaps in the state’s evidence, this is not an 

“ ‘exceptional case in which the evidence weighs heavily against the conviction.’ ” 

Id., quoting Martin at 175. Thus, we reject proposition of law No. 13. 

I. Settled Issues: Proposition of Law No. 20 

{¶ 331} Proposition of law No. 20 presents six oft-raised—and always 

rejected—constitutional challenges to Ohio’s capital punishment scheme. 
January Term, 2016 

83 

McKelton also argues that Ohio’s death-penalty statutes violate international law 

and treaties. We summarily reject these various claims. See, e.g., Fry, 125 Ohio 

St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, at ¶ 215-216; State v. Davis, 116 

Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 381-383. 

J. Independent Sentence Evaluation 

{¶ 332} We now independently review McKelton’s death sentence for 

appropriateness and proportionality. See R.C. 2929.05(A). In conducting this 

review, we must determine whether the evidence supports the jury’s finding of 

aggravating circumstances, whether the aggravating circumstances outweigh the 

mitigating factors, and whether this death sentence is proportionate to those 

imposed in similar cases. Id. 

1. Aggravating Circumstance

{¶ 333} McKelton was convicted of one count of aggravated murder and 

two death specifications. However, because these specifications were merged 

before sentencing, only one aggravating circumstance is before us: murder of the 

witness to an offense for the purpose of preventing his testimony in a criminal 

proceeding. R.C. 2929.04(A)(8). 

{¶ 334} The evidence at trial supports the jury’s finding of this aggravating 

circumstance beyond a reasonable doubt. Evidence indicated that Evans saw 

McKelton murder Allen and that Evans helped to dispose of her body. On February 

24, 2009, police contacted Crystal and said they wanted to discuss Allen’s death 

with Evans. McKelton was at home with Crystal, and the state theorized that he 

overheard the conversation. A few days later, Evans was murdered. Witnesses 

testified that McKelton later admitted to murdering Evans because he was the only 

person who could connect him to Allen’s death. 

2. Mitigating Factors

{¶ 335} We must weigh the above aggravating circumstance against any 

mitigating evidence about “the nature and circumstances of the offense” and 
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McKelton’s “history, character, and background.” R.C. 2929.04(B). In addition, 

we must consider the statutory mitigating factors under R.C. 2929.04: (B)(1) 

(victim inducement), (B)(2) (duress, coercion, or strong provocation), (B)(3) 

(mental disease or defect), (B)(4) (youth), (B)(5) (lack of significant criminal 

history), (B)(6) (accomplice only), and (B)(7) (any other relevant factors). 

a. McKelton’s mitigation hearing 

{¶ 336} At the mitigation hearing, the defense presented three witnesses 

and McKelton’s unsworn statement. 

{¶ 337} Kayla McKelton, McKelton’s 13-year-old daughter, described him 

as a “great father” and a “family man.” She said that he protects and cares for her, 

motivates her, and promotes her education. He “has been the most important person 

in [her] life” and she does not “know what [she] would do without him.” She gave 

her opinion that her father is innocent and asked the jury to impose a life sentence. 

{¶ 338} Audrey McKelton, McKelton’s mother, asked the jury to spare her 

son’s life in hopes that God can save him and that he can save somebody else. She 

testified about McKelton’s childhood in the projects. He was the second of Audrey’s 

four children, born when she was 14 or 15 years old. His father, Calvin Johnson, 

abused Audrey, ignored McKelton, and did not support his family. Johnson left when 

McKelton was nine or ten years old. 

{¶ 339} When McKelton was a child, Audrey was involved in prostitution 

and drugs. She was more concerned with her drugs than her children. She has 

convictions for felonious assault, solicitation, drug crimes, and trespassing, and she 

has been arrested for robbery. When she learned that McKelton was selling drugs 

in the projects, she was not concerned because she did not think he was hurting 

anyone. Instead, she believed he had the life of glamour and fame that she had 

wanted. 

{¶ 340} Crystal Evans, the mother of McKelton’s son and the sister of 

Germaine Evans, testified that she was “still in a state of shock” and “having a lot 
January Term, 2016 

85 

of mixed emotions about the whole situation.” She did not want McKelton “to get 

the death penalty” because she generally opposes the death penalty. She asked the 

jury to sentence McKelton to life in prison. 

{¶ 341} Finally, McKelton gave an unsworn statement. He described how 

the arrival of crack in his childhood neighborhood changed his life forever. He first 

saw his mom get high when he was seven or eight years old. From then on, his 

mother was absent, often disappearing for days. For several years, he lived with 

his grandmother, where he slept on the floor. 

{¶ 342} McKelton’s brother was convicted of selling drugs, and, by age 14, 

McKelton was selling drugs himself. He used the money he made to care for his 

brother and sisters. His grandmother kicked him out of her house, and he continued 

to sell drugs. Later, he began robbing drug dealers and undercover federal drug 

agents. McKelton said he has been shot several times, once in the back of the head. 

His brother and several of his friends have been murdered. 

{¶ 343} McKelton has become closer to his mother since his brother’s 

death. He has three children, by three different women, and has a good relationship 

with his daughters. He wants to develop a relationship with his son, who was born 

while he was incarcerated awaiting trial. He wants an opportunity to teach his son 

right from wrong, to help him with problems and homework, and to encourage him 

to do something good with his life. McKelton also acts as a father to four nephews 

and three nieces and has managed to keep them off the street so far. He wants to 

“show [his] kids that they don’t have to end up like” him. 

{¶ 344} Ultimately, McKelton asked the jurors to “consider sparing [his] 

life.” He said that he wants to live and to be part of his children’s lives. He noted 

that he had earned a GED during an earlier prison term and expressed hope of 

attending college. He concluded, “I’m sorry for all the wrongdoings I ever done 

and “I would like to apologize to everybody I ever hurt.” 

 
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b. Weight of mitigating factors 

{¶ 345} All the evidence McKelton presented in mitigation falls under the 

rubric of “history, character, and background” or “any other factors that are 

relevant.” R.C. 2929.04(B)(7). We find nothing mitigating about “the nature and 

circumstances of the offense,” and we see no evidence of the statutory mitigating 

factors enumerated in R.C. 2929.04(B)(1) through (6). 

{¶ 346} McKelton presented evidence of his difficult childhood. He was 

raised in the projects by a very young mother and a father who abused the mother 

of his children and ignored his son. His father had left by the time McKelton was 

11 years old. His mother used drugs and engaged in prostitution, often leaving 

McKelton and his siblings to care for themselves. Her criminal record included 

drug convictions, solicitation, trespassing, and felonious assault. By age 14, 

McKelton was living with his grandmother and selling drugs. Soon enough, he had 

his own list of criminal convictions. His difficult background is entitled to 

significant weight. 

{¶ 347} McKelton also presented some evidence of good character regarding 

his closeness with family members. He said that he tries to be a positive role model 

to his children, as well as to his nieces and nephews, by encouraging them to not 

follow in his footsteps. McKelton’s desire to maintain a relationship with his children 

is entitled to some weight. 

{¶ 348} In his unsworn statement, McKelton indicated his desire for a 

college education. He noted that during a past prison term, he had obtained a GED, 

which indicates his ability to function while in prison. This desire for personal 

improvement is also entitled to modest weight. 

{¶ 349} Finally, McKelton apologized for all his wrongs and to everyone he 

had hurt. However, he did not specifically mention Margaret Allen or Germaine 

Evans. We assign minimal weight to McKelton’s general expression of remorse. 

 
January Term, 2016 

87 

3. Weighing

{¶ 350} The aggravating circumstance of Evans’s murder outweighs the 

mitigating factors. McKelton has been convicted of murdering a friend who 

witnessed and helped him cover up a murder. By comparison, the mitigating 

evidence is weak. As a result, we find that the aggravating circumstances outweigh 

the mitigating factors beyond a reasonable doubt. 

4. Proportionality

{¶ 351} “We have approved death sentences in cases where the witnessmurder specification was present alone or in combination with one other 

specification, even when substantial mitigation existed.” State v. Turner, 105 Ohio 

St.3d 331, 2005-Ohio-1938, 826 N.E.2d 266, ¶ 101. Also see Maxwell, 139 Ohio 

St.3d 12, 2014-Ohio-1019, 9 N.E.3d 930, at ¶ 285-286 (murder in retaliation for 

grand-jury testimony); Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 

150, at ¶ 212 (murder to prevent testimony in an upcoming murder trial). The death 

penalty is appropriate and proportionate in this case, when compared to death 

sentences approved in similar cases. 

III. CONCLUSION 

{¶ 352} We reject each of McKelton’s propositions and affirm his 

convictions and sentence of death. 

Judgment affirmed. 

O’CONNOR, C.J., and O’DONNELL, KENNEDY, and FRENCH, JJ., concur. 

PFEIFER, J., concurs in part and dissents in part, with an opinion. 

O’NEILL, J., concurs in part and dissents in part, with an opinion. 

_________________ 

PFEIFER, J., concurring in part and dissenting in part. 

{¶ 353} I concur in the judgment of the majority affirming the 

determination of McKelton’s guilt. I join Justice O’Neill’s dissent regarding the 

inadequacy of trial counsel in the sentencing phase, except to the extent that it relies 
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on his dissent in State v. Wogenstahl, 134 Ohio St.3d 1437, 2013-Ohio-164, 981 

N.E.2d 900.

_________________ 

O’NEILL, J., concurring in part and dissenting in part.

{¶ 354} I concur in the majority’s resolution of Calvin McKelton’s various 

propositions of law, with the exception of his 16th and 20th propositions. 

Respectfully, I must dissent as to the majority’s rejection of McKelton’s argument 

that his counsel were ineffective for failing to investigate a mitigation defense. I 

would hold that State v. Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 (1976), applies 

in this unique case. Furthermore, I must dissent from the majority’s decision to 

affirm McKelton’s sentence of death for the reasons I discussed in my dissent in 

State v. Wogenstahl, 134 Ohio St.3d 1437, 2013-Ohio-164, 981 N.E.2d 900. 

Unreasonable Professional Assistance 

{¶ 355} About one month before McKelton’s trial, the state revealed that 

one of McKelton’s attorneys represented more than one of the state’s undisclosed 

witnesses, suggesting conflict-of-interest issues during trial. That attorney 

acknowledged his potential ethical conflict but said that he was reluctant to 

withdraw because he was unsure whether McKelton’s other two co-counsel could 

effectively represent him. Two weeks later, all three defense counsel filed a motion 

for leave to withdraw from representation, for appointment of new counsel, and for 

a continuance to allow new counsel to prepare for trial. The attorneys cited a 

complete breakdown in the attorney-client relationship. That same day, McKelton 

filed a handwritten motion requesting the removal of all defense counsel. At a 

hearing on the motions two weeks before trial, the court granted the conflicted 

attorney’s motion to withdraw. One of the two remaining attorneys, both certified 

by the Ohio Supreme Court as lead counsel in capital-murder cases, told the court 

that his and co-counsel’s relationship with McKelton had disintegrated to the point 

that they could no longer “effectively represent him.” McKelton, speaking from a 
January Term, 2016 

89 

written statement, claimed, among other things, that his attorneys had not hired the 

“special experts” necessary for his death-penalty case. He added that the two 

remaining attorneys had met with McKelton privately only twice and that they had 

pressured him in the presence of an officer to plead guilty in exchange for life 

without parole, instead of properly investigating his case and going to trial. He 

claimed that one of the remaining attorneys called him a “dumb n * * * r” after he 

refused to take the plea agreement. He also asserted that they had aligned 

themselves with the prosecutor. 

{¶ 356} The court denied the motions to allow the remaining attorneys to 

withdraw. He stated that the case preparations were proceeding in an orderly 

fashion and that McKelton had had three attorneys and four experts11 working on 

his case. The court further pointed to the American Bar Association’s 2003 

Standards for Capital Litigation and told McKelton that he had been given more 

than the minimum recommended defense team of two attorneys and one mitigation 

expert. However, the record before us shows the hiring of only one investigator. 

The investigator worked primarily with the conflicted attorney prior to trial. One 

of the capital-certified attorneys met with the investigator once in June, and again 

the day before trial. The other capital-certified attorney met with the investigator 

only on the day before trial. No other experts submitted bills after trial. 

{¶ 357} At the mitigation hearing, the attorneys did not present any 

documentary evidence of the sort that a trained mitigation specialist might find or 

provide.12 But I have no doubt that this evidence exists. The record shows that 

 

11 At the arraignment almost eight months before, the court granted funds to hire an investigator, a 

mitigation specialist, a mental-health professional, and forensic experts. 

12

Mitigation specialists possess clinical and information-gathering skills and 

training that most lawyers simply do not have. They have the time and the ability 

to elicit sensitive, embarrassing and often humiliating evidence (e.g., family 

sexual abuse) that the defendant may have never disclosed. They have the clinical 

skills to recognize such things as congenital, mental or neurological conditions, 
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McKelton was neglected as a child, when he was also exposed to his mother’s drug 

use and prostitution. He grew up to become a violent and abusive adult. McKelton 

and a witness detailed instances of heavy alcohol use in response to strong 

emotional stimuli. In the modern era, people who live such a life generate a paper 

trail. Yet at the mitigation hearing, McKelton’s attorneys presented only the 

testimony of his daughter, his mother, and Crystal Evans, the sister of victim 

Germaine Evan. 

{¶ 358} To me, the record shows that McKelton’s attorneys did not hire, 

but should have hired, a mitigation specialist to investigate his background, in 

addition to one or more mental-health professionals if the mitigation specialist’s 

investigation suggested a need. During our independent weighing of the mitigating 

and aggravating factors in prior cases, we have given great cumulative weight not 

only to direct evidence of a background of alcohol use, violence, and abuse like 

McKelton’s but also to the testimony of an expert capable of explaining to a jury 

the psychological and social effect that this sort of experience can have on a human 

being. State v. Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, 

¶ 118-124, 137. Accord State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 

N.E.2d 386, ¶ 86-96, 105; see also Goodwin v. Johnson, 632 F.3d 301, 324-326 

 

to understand how these conditions may have affected the defendant’s 

development and behavior, and to identify the most appropriate experts to 

examine the defendant or testify on his behalf. Moreover, they may be critical to 

assuring that the client obtains therapeutic services that render him cognitively 

and emotionally competent to make sound decisions concerning his case. 

Perhaps most critically, having a qualified mitigation specialist assigned 

to every capital case as an integral part of the defense team insures that the 

presentation to be made at the penalty phase is integrated into the overall 

preparation of the case rather than being hurriedly thrown together by defense 

counsel still in shock at the guilty verdict 

(Footnote omitted.) American Bar Association Guidelines for the Appointment and Performance of 

Defense Counsel in Death Penalty Cases, Guideline 9.1, Commentary, reprinted in 31 Hofstra 

L.Rev. 913, 959 (2003). 
January Term, 2016 

91 

(6th Cir.2011). Instead of arranging for the inquiry of a mitigation expert, counsel 

went so far as to tell the jury that McKelton could have presented testimony of a 

mental-health professional but that such testimony would have been “a bunch of 

psycho babble.” Frankly speaking, a license to practice law does not qualify 

counsel to make that decision for a client.13

{¶ 359} The majority points to trial counsel’s statements that they had hired 

the experts for which funding had been authorized. Majority opinion at ¶ 73. But 

the record shows that no expert with qualifying social work or psychological 

degrees or experience showed up asking for even a small amount of money. This 

strongly undermines the majority’s position about what happened while counsel 

prepared for this case. The best the majority can say is that “trial counsel may have 

reasonably decided not to present a mental-health professional or a mitigation 

specialist for strategic reasons.” Majority opinion at ¶ 307. But on this record as a 

whole, I must respectfully disagree. I believe it is much more likely that counsel 

unreasonably decided not to engage any qualified person as a matter of expedience. 

Wiggins v. Smith, 539 U.S. 510, 533, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003), 

quoting Strickland v. Washington, 466 U.S. 668, 691, 104 S.Ct. 2052, 80 L.Ed.2d 

674 (1984) (“A decision not to investigate thus ‘must be directly assessed for 

reasonableness in all the circumstances’ ”); State v. Johnson, 24 Ohio St.3d 87, 90, 

494 N.E.2d 1061 (1986). And without someone qualified to screen McKelton for 

 

13 

Counsel’s own observations of the client’s mental status, while 

necessary, can hardly be expected to be sufficient to detect the array of conditions 

(e.g., post-traumatic stress disorder, fetal alcohol syndrome, pesticide poisoning, 

lead poisoning, schizophrenia, mental retardation) that could be of critical 

importance. Accordingly, Subsection A(2) mandates that at least one member of 

the defense team (whether one of the four individuals constituting the smallest 

allowable team or an additional team member) be a person qualified by experience 

and training to screen for mental or psychological disorders or defects and 

recommend such further investigation of the subject as may seem appropriate. 

(Footnote omitted.) American Bar Association Guidelines, Guideline 4.1, Commentary, reprinted 

in 31 Hofstra L.Rev. at 956-957. 
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the possible psychological and social consequences of his hard-lived background, 

there cannot have been the constitutionally guaranteed reasonable professional 

investigation. Strickland at 691 (“counsel has a duty to make reasonable 

investigations or to make a reasonable decision that makes particular investigations 

unnecessary”). Accord State v. Herring, 142 Ohio St.3d 165, 2014-Ohio-5228, 28 

N.E.3d 1217, ¶ 76-77. For these reasons, I would hold that McKelton satisfied his 

burden to prove unreasonable professional assistance. 

Prejudice 

{¶ 360} I believe that the circumstances in this exceptional case demand a 

legal standard less rigid than the one applied under Strickland. Under Strickland, 

“[a]n accused is entitled to be assisted by an attorney, whether retained or 

appointed, who plays the role necessary to ensure that the trial is fair.” Id. at 686. 

Counsel plays that role by subjecting the state’s case to “the crucible of meaningful 

adversarial testing.” United States v. Cronic, 466 U.S. 648, 656, 104 S.Ct. 2039, 

80 L.Ed.2d 657 (1984). When an attorney fails to play that role, the Sixth 

Amendment to the United States Constitution requires confidence in the reliability 

of the outcome of a proceeding. Strickland at 696. For that reason, a professional 

error by counsel “does not warrant setting aside the judgment of a criminal 

proceeding if the error had no effect on the judgment.” Id. at 691. 

{¶ 361} In Ohio as elsewhere, courts have boiled off the fat of the Sixth 

Amendment, applying a mechanical “Strickland test” that requires meeting two 

prongs: (1) demonstrating deficient performance of counsel and (2) demonstrating 

prejudice. 466 U.S. at 691, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v. Bradley, 42 

Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus, citing 

Strickland at 691. In this case, the majority holds that McKelton cannot meet the 

prejudice prong under Strickland, given the record before us. Majority opinion at 

¶ 305. We “cannot look outside of the record” in a death-penalty appeal, State v. 

Dixon, 101 Ohio St.3d 328, 2004-Ohio-1585, 805 N.E.2d 1042, ¶ 62, to determine 
January Term, 2016 

93 

what evidence a mitigation or mental-health specialist would have found or offered 

for McKelton in support of a sentence less than death. 

{¶ 362} In Hester, issued eight years before Strickland, we formulated a 

somewhat different standard for determining ineffective assistance of counsel 

under Article I, Sections 10 and 16 of the Ohio Constitution. Hester, 45 Ohio St.2d 

71, 341 N.E.2d 304. There, we held that the test for ineffective assistance of 

counsel under “the Fifth, Sixth and Fourteenth Amendments, and Sections 10 and 

16 of Article I of the Ohio Constitution” was “whether the accused, under all the 

circumstances, * * * had a fair trial and substantial justice was done.”14 Hester, 45 

Ohio St.2d at 79, 341 N.E.2d 304. We decided to apply this test “on a case-to-case 

basis,” likening that approach to application of the exclusionary rule under the 

Fourth Amendment. Id. at 80. We are thus empowered to apply Hester selectively. 

And we have been cautious in not letting these floodgates open too far, having 

applied the “fair trial and substantial justice” standard only twice in the last century: 

Hester and Cornwell v. State, 106 Ohio St. 626, 628, 140 N.E. 363 (1922). 

{¶ 363} Despite rare application, Hester is nonetheless controlling 

precedent governing the standard for ineffective assistance of counsel under 

Sections 10 and 16 of Article I of the Ohio Constitution, as we have never explicitly 

overruled it. Shortly after Hester, we elaborated upon this standard, saying that 

when considering effective-assistance claims, a two-step analysis like the one that 

would later be adopted in Strickland is “usually” applied. State v. Lytle, 48 Ohio 

St.2d 391, 396, 358 N.E.2d 623 (1976), vacated in part on other grounds, Lytle v. 

Ohio, 438 U.S. 910, 98 S.Ct. 3135, 57 L.Ed.2d 1154 (1978). After Strickland, we 

commented, without any analysis, that “[t]he test enunciated in Strickland is 

essentially the same” as the one we adopted in Hester and Lytle. State v. Smith, 17 

Ohio St.3d 98, 100, 477 N.E.2d 1128 (1985); see also Bradley, 42 Ohio St.3d at 

 

14 The two-part test in Strickland preempts Hester on its interpretation of the United States 

Constitution. United States Constitution, Article VI, cl. 2. 
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94 

141-142, 538 N.E.2d 373. But Hester is still good law. After all, the Ohio Supreme 

Court does not overrule precedent sub silentio. See Westfield Ins. Co. v. Galatis, 

100 Ohio St.3d 216, 2003-Ohio-5849, 797 N.E.2d 1256, ¶ 1 (“It is only with great 

solemnity and with the assurance that the newly chosen course for the law is a 

significant improvement over the current course that we should depart from 

precedent”). 

{¶ 364} As we said in Smith, the rules laid down in Strickland and Hester

are the same in essence, but they are not identical standards. Smith at 100. In the 

typical case, “substantial justice” is done because the record suggests no reasonable 

probability that the outcome of a proceeding would have been different. It is 

analytically possible in rare and exceptional circumstances, however, that an 

individual may be able to show that counsel’s assistance fell so far below the 

minimum professional standards that the proceeding was basically unfair and 

substantially unjust, even if the record suggests that the outcome of a proceeding 

would probably not have been different. In those circumstances, Hester requires a 

new trial. 

{¶ 365} Hester is uniquely appropriate for application in capital-murder 

cases because the demands of due process are at their strongest when the result of 

a proceeding may be death. See Ford v. Wainwright, 477 U.S. 399, 414, 106 S.Ct. 

2595, 91 L.Ed.2d 335 (1986) (discussing the “heightened concern for fairness and 

accuracy that has characterized the [United States Supreme Court’s] review of the 

process requisite to the taking of a human life”). This is especially true because 

Hester’s standard is predicated upon both the guarantees of counsel, Ohio 

Constitution, Article I, Section 10, and of due process under Ohio Constitution, 

Article I, Section 16. Hester, 45 Ohio St.2d at 79, 341 N.E.2d 304. At its heart, 

the Hester standard differs from Strickland because of the unique guarantee of 

“justice” within Article I, Section 16 of our state constitution—a word that goes 

unmentioned by the Bill of Rights or the Fourteenth Amendment to the United 
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95 

States Constitution. In contrast, Strickland’s standard is a pure creature of the Sixth 

Amendment, which is focused upon the reliability of the proceeding. Strickland, 

466 U.S. at 691, 104 S.Ct. 2052, 80 L.Ed.2d 674. The United States Constitution 

guarantees a fair trial under the Fourteenth Amendment through application of the 

Sixth Amendment—not so much independently from it. Id. at 684-685. 

{¶ 366} Throwing McKelton into the fray with attorneys he had barely met 

was profoundly unfair: their task was to provide the jury with a detailed story of 

the person that they represented. I am convinced that Calvin McKelton’s attorneys 

were insufficiently prepared to go forward at the mitigation hearing due to a 

professionally inadequate investigation prior to trial and the unexpected scramble 

of taking over the work of another seasoned trial attorney. For these reasons, I have 

no faith in the jury’s recommended sentence. I will not place the ends of justice—

a reliable outcome—before the means of justice in the context of a capitalsentencing hearing. For that reason, I am entirely comfortable reversing Calvin 

McKelton’s death sentence without strict proof in the record that counsel would 

have turned up silver- bullet mitigation evidence had they hired an expert to look 

for it. For me, it is enough that counsel did not hire an expert qualified to look 

before deciding not to present any “psycho-babble.” Accordingly, I would apply 

Hester, reverse McKelton’s death sentence, and remand for a new mitigation 

hearing. 

{¶ 367} The majority instead rejects McKelton’s argument that his 

attorneys were ineffective for failing to conduct a complete investigation into his 

background prior to mitigation. The majority does not limit or overrule our 

decision in State v. Herring, 142 Ohio St.3d 165, 2014-Ohio-5228, 28 N.E.3d 1217, 

¶ 102-104, in which we held that counsel have a duty to conduct at least enough 

investigation of potential mitigation evidence to make a reasonable decision not to 

investigate further. Rather, the majority thinks that McKelton’s ineffectiveassistance argument necessarily requires evidence of prejudice that may exist 
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96 

outside the record, which we cannot consider in this appeal. Majority opinion at 

¶ 79; State v. Keith, 79 Ohio St.3d 514, 536-537, 684 N.E.2d 47 (1997). 

McKelton’s prejudice claim is proper for a postconviction proceeding because he 

could develop a record by which to compare the evidence found and presented by 

postconviction counsel to the evidence presented by trial counsel. Keith at 536-

537, citing State v. Scott, 63 Ohio App.3d 304, 308, 578 N.E.2d 841 (8th 

Dist.1989). 

Collateral Proceedings 

{¶ 368} McKelton’s postconviction petition is currently pending as a 

discretionary appeal to this court. His petition to the trial court argued, among other 

things, that counsel failed to conduct an adequate mitigation investigation, 

requested leave to conduct discovery on that issue, and requested funds to hire “a 

forensic ophthalmologist, a neuropsychologist and a substance abuse expert.” State 

v. McKelton, 12th Dist. Butler No. CA2015–02–028, 2015-Ohio-4228, ¶ 4, 8. 

McKelton’s petition was denied without a hearing, and not because he failed to 

“ ‘set forth sufficient operative facts to establish substantive grounds for relief.’ ” 

Id. at ¶ 10, quoting State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999), 

paragraph two of the syllabus. Instead, McKelton’s petition was denied on the sole 

basis of res judicata, because all the claims he raised had already been raised or 

could have been raised in this appeal. 

{¶ 369} The court of appeals affirmed on appeal, explaining that the same 

ineffective-assistance argument this court now declines to address due to lack of 

evidence in the record is the kind of argument that “could fairly have been 

determined without resort to evidence outside the record.” McKelton, 2015-Ohio4228, ¶ 27, quoting State v. Sturgill, 12th Dist. Clermont Nos. CA2014–01–003 

and CA2014–07–049, 2014–Ohio–5082, ¶ 13. As a result, there has been no 

hearing or discovery, nor has there been any real consideration of the merits of 

McKelton’s argument. Nobody has called trial counsel out onto the carpet to ask 
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97 

whether they came to a reasonable professional decision not to use the information 

in McKelton’s “one thousand plus pages of exhibits” submitted with his 

postconviction-relief petition, McKelton at ¶ 8, or simply never hired a mitigation 

specialist qualified and trained to look for it. 

{¶ 370} Justice has not been served. Even agreeing that McKelton is one 

of the most dangerous criminals in the state, who admitted his own responsibility 

in starting what sounds like a war among drug dealers in Cincinnati, he is a human 

being, guaranteed the minimum constitutional protections of a fair trial, with 

adequate counsel and meaningful appellate review. I sincerely hope that my 

colleagues will take action when McKelton’s postconviction appeal comes before 

the court for consideration. If we do not accept McKelton’s discretionary appeal, 

his ineffective-assistance argument will have been denied by every court involved, 

without a single judge taking a critical look at the evidence outside of the record 

and determining whether his trial attorneys did or did not look for it. 

{¶ 371} For these reasons, I dissent. 

PFEIFER, J., concurs in the foregoing opinion except as noted in his separate 

opinion. 

_________________ 

Michael Gmoser, Butler County Prosecuting Attorney, and Michael A. 

Oster Jr. and Lina N. Alkamhawi, Assistant Prosecuting Attorneys, for appellee. 

Timothy Young, Ohio Public Defender, and Rachel Troutman, Allen 

Vender, and Shawn Welch, Assistant Public Defenders, for appellant. 

_________________