[Cite as State v. Madison, 2015-Ohio-4365.]

Court of Appeals of Ohio

EIGHTH APPELLATE DISTRICT 

COUNTY OF CUYAHOGA 

JOURNAL ENTRY AND OPINION 

No. 101478

STATE OF OHIO

PLAINTIFF-APPELLEE 

vs. 

MICHAEL MADISON

DEFENDANT-APPELLANT 

JUDGMENT:

AFFIRMED 

Criminal Appeal from the 

Cuyahoga County Court of Common Pleas 

Case No. CR-13-579539-A 

BEFORE: Celebrezze, A.J., E.T. Gallagher, J., and Laster Mays, J.

RELEASED AND JOURNALIZED: October 22, 2015
ATTORNEYS FOR APPELLANT

 

Robert L. Tobik 

Cuyahoga County Public Defender 

BY: Erika B. Cunliffe 

Jeffrey Gamso 

Assistant Public Defenders 

310 Lakeside Avenue, Suite 200 

Cleveland, Ohio 44113 

ATTORNEYS FOR APPELLEE

Timothy J. McGinty 

Cuyahoga County Prosecutor 

BY: Christopher D. Schroeder 

Assistant Prosecuting Attorney 

The Justice Center, 8th Floor 

1200 Ontario Street 

Cleveland, Ohio 44113
FRANK D. CELEBREZZE, JR., A.J.:

{¶1} Defendant-appellant, Michael Madison (“Madison”), brings this appeal 

challenging the trial court’s order granting the state of Ohio’s motion to compel a 

psychiatric evaluation of Madison. Specifically, appellant argues that the trial court 

does not have the authority to compel Madison to submit to a psychiatric evaluation when 

Madison’s mental state or psychological status is not at issue, and that Madison should be 

able to exercise his Eighth Amendment right to present mitigating evidence without 

sacrificing his Fifth Amendment right against self-incrimination. After a thorough 

review of the record and law, this court affirms. 

I. Factual and Procedural History

{¶2} On October 28, 2013, the Cuyahoga County Grand Jury returned a 14-count 

indictment charging appellant with six counts of aggravated murder. All six counts were 

accompanied by death penalty specifications under R.C. 2929.04(A)(5) and 

2929.04(A)(7). The matter was set for trial on July 21, 2014. 

{¶3} Following his indictment in this case, Madison’s defense team retained two 

psychiatric experts to evaluate him — Dr. Daniel A. Davis, a forensic psychologist, and 

Dr. James Karpawich, a clinical psychologist. Defense counsel plans to introduce the 

psychiatric expert testimony as mitigation evidence during the penalty phase of the 

proceedings. During pretrial discovery, the defense provided copies of the expert 

reports to appellee, the state. Dr. Davis’s report included the following relevant 

comments and conclusions: 
* A substantial body of research documents the negative impact of the 

effects of abuse and trauma upon the developing brain. It is well 

documented in the research literature that exposure to trauma can have 

profound negative effects upon the developing child. These effects are 

physical and chemical in nature that result in subsequent psychological 

dysfunction. Specifically, exposure to violence, verbal and physical abuse 

results in an imbalance in an important chemical, cortisol, in the brain that 

results in damage to structures of the brain such as the hippocampus that is 

responsible for the control of memory, emotions, and attention. Exposure 

to abuse has also been shown to affect the limbic system (the emotional seat 

of the brain) especially the amygdala, an area of the brain critically involved 

in moods, emotions such as anger and fear and emotional learning. 

* Thus, the extreme trauma and abuse experienced by Mr. Madison resulted 

in a neurobiologically determined pathway placing him at much greater risk 

for psychological, behavioral and substance abuse problems. 

* [Madison’s] instability as a youth as well as potentially his family history, 

suggests the potential of a possible underlying mood disorder, likely 

Posttraumatic Stress Disorder or at a minimum, a need for a psychiatric 

consultation. 

* In Mr. Madison’s case, it is highly likely that his early victimization 

resulted in severe behavioral symptoms that are frequently associated with 

Posttraumatic Stress Disorder in males. 

* Youth who come from markedly abusive and dysfunctional environments 

do not have the chance to learn appropriate social coping skills, skills to 

regulate emotions, skills to control impulses and skills to relate in positive, 

socially appropriate ways. 

* As an adult, [Madison] presented with substance abuse, behavioral 

instability as well as antisocial behaviors. 

{¶4} Preparing to rebut his expert testimony, the state moved for an order 

compelling a psychiatric evaluation of Madison by the state’s expert, Dr. Steven E. Pitt. 

Defense counsel objected to the evaluation proposed by the state, arguing that it had no 

intention of putting Madison’s mental state in issue — either in the trial or penalty phase 
— and only intended to introduce the expert testimony as mitigating evidence during the 

penalty phase. At the conclusion of the June 3, 2014 hearing on the state’s motion, the 

trial court granted the state’s motion, ruling: 

You may not use it during the guilt/non-guilt phase. You can only use it in 

mitigation. The State will be able to have an examination of the defendant. 

However, it is limited only to brain damage and issues like that. There 

may be no questioning about the facts and circumstances of this particular 

case. 

(Tr. 24-25.) 

{¶5} Madison filed a notice of appeal in this court and an emergency motion to 

stay the trial court’s order. The state moved to dismiss the appeal, arguing that the 

ruling on the motion was not a final, appealable order pursuant to R.C. 2505.02(B). This 

court denied the state’s motion to dismiss — finding the trial court’s ruling to be a final, 

appealable order under R.C. 2505.02(B)(4) — on the grounds that Madison’s Fifth 

Amendment testimonial privilege is a provisional remedy. Therefore, the issue as to 

whether Madison can be compelled to submit to the psychiatric examination is ripe for 

hearing and judgment. 

{¶6} On June 30, 2014, the state filed a writ of prohibition in the Supreme Court of 

Ohio, again challenging this court’s jurisdiction to entertain the appeal under R.C. 

2505.02. The Supreme Court dismissed the state’s complaint and subsequent motion for 

reconsideration. 

{¶7} Appellant filed the instant appeal assigning two errors for review: 

I. The trial court has no authority to compel a defendant to submit to a 

psychiatric evaluation by a prosecution expert where that evaluation’s 
explicit purpose is to rebut mitigation evidence the defense has repeatedly 

denied any intention of presenting. 

II. A capital defendant should be able to exercise his 8th Amendment right 

to develop and present mitigating evidence for a possible penalty phase 

without sacrificing his 5th Amendment privilege against self-incrimination. 

II. Law and Analysis

{¶8} Constitutional analysis involves a question of law that is subject to de novo 

review. Ornelas v. United States, 517 U.S. 690, 698-99, 116 S.Ct. 1657 134 L.Ed.2d 

911 (1996) (stating legal conclusions of trial court are reviewed de novo). 

A. Mental Condition Controversy

{¶9} In his first assignment of error, Madison argues that the trial court had no 

authority to compel him to submit to a psychiatric evaluation by the state’s expert where 

that evaluation’s explicit purpose is to rebut mitigation evidence that the defense does not 

intend to present. Specifically, Madison argues that the state’s expert, Dr. Pitt, has no 

right to perform an evaluation because: (1) Madison is not arguing that his mental 

condition made him incapable of prior calculation and design or from acting purposefully, 

and (2) Madison is not asserting any mental condition as an affirmative defense in the 

criminal liability phase of the proceedings. Therefore, Madison argues, the state is not 

entitled to a psychiatric evaluation because his mental health is not in controversy. 

{¶10} However, Madison concedes he anticipates introducing the expert testimony 

of Dr. Davis and Dr. Karpawich during the penalty phase of the proceedings as mitigating 

evidence. Specifically, Madison intends to introduce the expert testimony to illustrate 

how the physical abuse and neglect he experienced as a child resulted in damage — both 
physical and chemical — to his brain. The state maintains that it is entitled to its own 

psychiatric evaluation to rebut the mitigation evidence, including psychological issues, 

that Madison introduces during the penalty phase. 

{¶11} The United States Supreme Court precedent holds that a defendant’s Fifth 

Amendment privilege against self-incrimination applies to the penalty phase of a capital 

case. White v. Woodall, ___U.S.___, 134 S.Ct. 1697, 1699, 188 L.Ed.2d 698 (2013). 

Further, it is undisputed that “when a criminal defendant ‘neither initiates a psychiatric 

evaluation nor attempts to introduce any psychiatric evidence,’ his compelled statements 

to a psychiatrist cannot be used against him.” Kansas v. Cheever, ___U.S.___, 134 S.Ct. 

596, 601, 187 L.Ed.2d 519 (2013), quoting Estelle v. Smith, 451 U.S. 454, 101 S.Ct. 

1866, 68 L.Ed.2d 359 (1981). However, when a defendant introduces psychiatric 

evidence and places his state of mind directly at issue at trial, he may be compelled to 

submit to a psychiatric evaluation. Buchanan v. Kentucky, 483 U.S. 402, 422-424, 107 

S.Ct. 2906, 97 L.Ed.2d 336 (1987). 

{¶12} There are no criminal rules governing whether or when a court may order a 

defendant to submit to a psychological examination. However, there is an applicable civil 

rule: Civ.R. 35(A). Crim.R. 57(B) permits a trial court in a criminal case to look to the 

civil rules for guidance when no applicable rule of criminal procedure exists. State v. 

Schlee, 117 Ohio St.3d 153, 154, 2008-Ohio-545, 882 N.E.2d 431, ¶ 1. Ohio courts, 

including this court, have generally been guided by Civ.R. 35(A) in criminal cases. See 

e.g. State v. Ervin, 8th Dist. Cuyahoga No. 80473, 2002-Ohio-4093, ¶ 69-70. 
{¶13} Civ.R. 35(A) allows a trial court to order a party to submit to a mental 

examination when the mental condition of the party is in controversy. Specifically, 

Civ.R. 35(A) states, in its entirety: 

When the mental or physical condition (including the blood group) of a 

party, or of a person in the custody or under the legal control of a party, is in 

controversy, the court in which the action is pending may order the party 

to submit himself to a physical or mental examination or to produce for 

such examination the person in the party’s custody or legal control. The 

order may be made only on motion for good cause shown and upon notice 

to the person to be examined and to all parties and shall specify the time, 

place, manner, conditions, and scope of the examination and the person or 

persons by whom it is to be made. 

{¶14} A party’s mental condition is “in controversy” when it is “directly involved 

in some material element of the cause of action or defense.” In re Guardianship of 

Johnson, 35 Ohio App.3d 41, 44, 519 N.E.2d 655 (10th Dist.1987). The “in 

controversy” element is established when the mental condition of a party is a relevant 

factor in the case. Brossia v. Brossia, 65 Ohio App.3d 211, 215, 583 N.E.2d 978 (6th 

Dist.1989). 

{¶15} R.C. 2929.04 lists the criteria to be considered in deciding whether to 

impose a death sentence in a capital case. R.C. 2929.04(B)(3) specifically allows the 

court to determine “[whether], at the time of committing the offense, the offender, 

because of a mental disease or defect, lacked substantial capacity to appreciate the 

criminality of the offender’s conduct or to conform the offender’s conduct to the 

requirements of the law.” 
{¶16} Despite statements to the contrary, Madison admitted at the trial court 

hearing that he intends to present expert testimony of his mental condition as mitigating 

evidence to avoid the death penalty should the case proceed to the penalty phase. 

Therefore, Madison has made his mental condition a relevant factor in determining 

whether a death sentence is appropriate. 

{¶17} Madison argues that the facts about his past detailed in the expert reports — 

while perhaps mitigating — “do not constitute evidence relating to his mental state.” 

However, Dr. Davis’s report contains several conclusions about Madison’s mental 

condition — conclusions that Madison intends to introduce as mitigating evidence — 

including: 

* Exposure to childhood trauma had physical and chemical effects on 

Madison’s brain that result in subsequent psychological dysfunction. 

* Exposure to violence, verbal and physical abuse results in an imbalance in 

an important chemical, cortisol, in the brain that results in damage to 

structures of the brain such as the hippocampus that is responsible for the 

control of memory, emotions, and attention. 

* Exposure to abuse has also been shown to affect the limbic system (the 

emotional seat of the brain) especially the amygdala, an area of the brain 

critically involved in moods, emotions such as anger and fear and emotional 

learning. 

* Exposure to abuse during critical times can result in damage to structures 

such as the frontal lobes that are critical for executive functions, such as 

attention, working memory, motivation, and behavioral inhibition. 

* The supposed damage to Madison’s frontal lobes results in an inability to 

plan and anticipate outcomes, to be flexible, to self-monitor and show good 

judgment and be aware of one’s self and one’s impact upon others. 
* Thus, the extreme trauma and abuse experienced by Mr. Madison resulted 

in a neurobiologically determined pathway placing him at much greater risk 

for psychological, behavioral and substance abuse problems. [Madison’s] 

instability as a youth as well as potentially his family history, suggests the 

potential of a possible underlying mood disorder, likely Posttraumatic Stress 

Disorder or at a minimum, a need for a psychiatric consultation. 

* In Mr. Madison’s case, it is highly likely that his early victimization 

resulted in severe behavioral symptoms that are frequently associated with 

Posttraumatic Stress Disorder in males. 

* Youth who come from markedly abusive and dysfunctional environments 

do not have the chance to learn appropriate social coping skills, skills to 

regulate emotions, skills to control impulses and skills to relate in positive, 

socially appropriate ways. 

* As an adult, [Madison] presented with substance abuse, behavioral 

instability as well as antisocial behaviors. 

{¶18} Dr. Davis’s report raises nine potential issues regarding Madison’s mental 

state. Madison argues that Dr. Davis does not make a diagnosis — pursuant to R.C. 

2929.04(B)(3) — in his report. Although the report does not make a psychiatric 

diagnosis, Madison’s brain and mental condition is nevertheless in controversy because 

the state submits that none of these statements are true. 

{¶19} Madison raises R.C. 2945.371 in support of his position that the state is not 

entitled to a psychiatric evaluation. R.C. 2945.371(A) states: 

If the issue of a defendant’s competence to stand trial is raised or if a 

defendant enters a plea of not guilty by reason of insanity, the court may 

order one or more evaluations of the defendant’s present mental condition 

or, in the case of a plea of not guilty by reason of insanity, of the 

defendant’s mental condition at the time of the offense charged. An 

examiner shall conduct the evaluation. 

Thus, because neither competency nor sanity is in issue, Madison argues that the trial 

court was not authorized to order a psychiatric evaluation. In State v. Goff, the 
defendant intended to introduce expert testimony from a psychiatric examination to 

support her self-defense claim. State v. Goff, 128 Ohio St.3d 169, 2010-Ohio-6317, 942 

N.E.2d 1075, ¶ 3. The Supreme Court of Ohio held that the trial court had the authority 

to order a compelled psychiatric evaluation of defendant, stating: 

By putting her mental state directly at issue and introducing expert 

testimony based upon her own statements to the expert, the defendant opens 

the door to a limited examination by the state's expert concerning 

battered-woman syndrome and its effect on the defendant's behavior. 

Id. at ¶ 58. Here, Madison’s mental state is at issue because the state disputes the 

conclusions that Dr. Davis makes in his report. 

{¶20} Madison further argues that the state can effectively rebut his expert 

testimony without conducting a personal and independent psychiatric evaluation. 

Specifically, Madison argues that the expert testimony he intends to introduce “does not 

include a diagnosis, and is not predicated on his statements to the expert,” and instead is 

“based on his expert’s research on risk factors relating to violent behavior and on 

historical facts of Mr. Madison’s life.” 

{¶21} The only way to rebut Madison’s expert testimony is through expert 

testimony. In re Guardianship of Johnson, 35 Ohio App.3d at 44, 519 N.E.2d 655. 

“When a defendant presents evidence through a psychological expert who has examined 

him, the government likewise is permitted to use the only effective means of challenging 

that evidence: testimony from an expert who has also examined him.” Cheever, 134 

S.Ct. at 601, 187 L.Ed.2d 519 (2013); see also United States v. Byers, 740 F.2d 1104, 

1113 (D.C.Cir.1984) (en banc) (holding that the government could present rebuttal expert 
testimony in part because it is perhaps “the most trustworthy means of attempting to 

meet” the burden of proof. Byers quoting Pope v. United States, 372 F.2d 710, 720 (8th 

Cir.1967)). Furthermore, “[i]t is unfair and improper to allow a defendant to introduce 

favorable psychological testimony and then prevent the prosecution from resorting to the 

most effective and in most instances the only means of rebuttal: other psychological 

testimony.” Goff at ¶ 46, citing Schneider v. Lynaugh, 835 F.2d 570, 576 (5th Cir.1988). 

{¶22} We conclude that to allow Madison to present expert evidence of his mental 

condition without allowing the state to investigate Madison’s claims and present a case in 

rebuttal is not fair and “would undermine the adversarial process, allowing a defendant to 

provide the jury * * * a one-sided and potentially inaccurate view,” unfairly tipping the 

weight of the evidence in his favor. Cheever at 601. 

{¶23} The trial court’s order is aimed at protecting — and does adequately protect 

— Madison’s Fifth Amendment privilege. “The limitation on a defendant’s bedrock 

constitutional right against self-incrimination must be carefully tailored to avoid any more 

infringement than is necessary to ensure a fair trial.” Goff at ¶ 30. Here, the order “is 

limited only to brain damage and issues like that.” The court further ordered: “[t]here 

may be no questioning about the facts and circumstances of this particular case.” The 

court’s order restricting the scope of the psychiatric evaluation is sufficiently tailored to 

protect Madison from an unreasonable infringement on his Fifth Amendment privilege 

against self-incrimination. 
{¶24} “Courts have the inherent authority to preserve the fairness in the trial 

process, and allowing defendant to present expert testimony * * * while denying the 

prosecution the ability to introduce such evidence would unfairly handicap the 

prosecution and prevent the trier of fact from making an informed decision.” Goff at ¶ 

46. While his expert testimony does not include a mental status diagnosis or raise an 

affirmative defense, Madison has made his mental condition a material issue for a 

possible penalty phase of the proceedings. Therefore, the state is entitled to its own 

evaluation solely for the purposes of rebutting the evidence Madison presents concerning 

his brain damage and mental condition. The examination authorized by the court’s order 

is limited to the sole issue in controversy—the nature and extent of Madison’s brain 

damage. 

{¶25} The first assignment of error is overruled. 

B. Eighth Amendment

{¶26} In the second assignment of error, Madison argues that he should be able to 

exercise his Eighth Amendment right to present mitigating evidence for a possible penalty 

phase without sacrificing his Fifth Amendment privilege against self-incrimination. 

{¶27} Because of the uniquely severe and irrevocable nature of the death penalty, 

defendants in capital cases are afforded “wide latitude in introducing evidence alleged to 

be mitigating.” State v. Eley, 77 Ohio St.2d 174, 185, 672 N.E.2d 640 (1996). Thus, 

the scope of the evidence a defendant may introduce is comprehensive and includes 

expert psychiatric or psychological testimony, details from his social history, education, 
medical and mental health, as well as other things. State v. Were, 118 Ohio St.3d 448, 

2008-Ohio-2762, 890 N.E.2d 263. The United States Supreme Court acknowledged that 

this kind of evidence “is relevant because of the belief, long held by society, that 

defendants who commit criminal acts that are attributable to a disadvantaged background, 

or to emotional or mental problems, may be less culpable than defendants who have no 

such excuse.” Penry v. Lynaugh, 492 U.S. 302, 327-328, 109 S.Ct. 2934, 106 L.Ed.2d 

256 (1989). 

{¶28} Madison contends that an order compelling him to submit to a psychiatric 

examination forces him to choose between his Fifth Amendment privilege against 

self-incrimination and his Eighth Amendment right to present evidence in mitigation of 

the death penalty. Furthermore, Madison contends that the United States Supreme Court 

has “consistently rejected the notion that exercise of one constitutional right may be 

conditioned on the substantial impairment of another.” In support of this argument, 

Madison relies on Simmons v. United States, 390 U.S. 377, 88 S.Ct 967, L.Ed.2d 1247 

(1968). In Simmons, the Supreme Court held that “when a defendant testifies in support 

of a motion to suppress evidence pursuant to the Fourth Amendment, his testimony 

cannot be admitted against him at trial on the issue of guilt unless he makes no 

objection.” Id. at 394. In Simmons, the defendant was not present when his suitcase 

was seized from another person’s home. The only way to establish standing to object to 

the admission of the suitcase was for the defendant to testify that he was its owner. The 

defendant’s suitcase, which was seized within a few hours of a bank robbery, was found 
to contain money wrappers taken from the victimized bank and was therefore 

incriminating. The court recognized that Simmons was faced with the dilemma of 

choosing between his Fourth Amendment exclusionary claim and his Fifth Amendment 

privilege against self-incrimination. 

{¶29} However, the court in Simmons held that the surrender of one right in order 

to assert another was intolerable “under the circumstances of th[at] case.” Id. It did 

not hold, as Madison suggests, that a defendant may never be forced to surrender one 

right in order to assert another in any kind of criminal prosecution. 

{¶30} Madison argues that “[h]e must submit to an unjustifiable infringement on 

his Fifth Amendment right to remain silent so that he may exercise his Eighth 

Amendment right to present mitigating evidence at a potential penalty phase.” Further, 

Madison contends that the compelled psychiatric evaluation will result in “an unrestricted 

intrusion on his Fifth Amendment privilege against self-incrimination.” 

{¶31} Having reviewed the record, we do not see anything in the trial court’s order 

— limiting the psychiatric evaluation to the issue of brain damage, and disallowing any 

questioning regarding the facts or circumstances of the case — that jeopardizes 

Madison’s Fifth Amendment right against self-incrimination. By the defense’s own 

admission, Madison’s mental state is going to be an issue in the penalty phase of the 

proceedings. The trial court’s order is narrowly tailored and adequately protects 

Madison’s Fifth Amendment right against self-incrimination — in both the trial on the 

merits and the potential penalty phase — from an unreasonable infringement by the state. 
{¶32} The alternative, that defense counsel has not argued here, is having the state 

examine Madison after he is found guilty and before the matter proceeds to the penalty 

phase. This would require putting the trial on hold for an undetermined number of 

months while Dr. Pitt evaluates Madison and prepares his report. Therefore, this 

solution is neither realistic nor constitutionally required. 

{¶33} The second and final assignment of error is overruled. 

{¶34} Finding no error based on the arguments advanced, this cause is affirmed. 

It is ordered that appellee recover of appellant costs herein taxed. 

The court finds there were reasonable grounds for this appeal. 

It is ordered that a special mandate issue out of this court directing the common 

pleas court to carry this judgment into execution. 

A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of 

the Rules of Appellate Procedure. 

__________________________________________________________ 

FRANK D. CELEBREZZE, JR., ADMINISTRATIVE JUDGE 

EILEEN T. GALLAGHER, J., and 

ANITA LASTER MAYS, J., CONCUR