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

v. Madison, Slip Opinion No. 2020-Ohio-3735.] 

NOTICE 

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

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

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

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

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

the opinion is published. 

SLIP OPINION NO. 2020-OHIO-3735

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

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

may be cited as State v. Madison, Slip Opinion No. 2020-Ohio-3735.] 

Criminal Law—Aggravated murder—Capital convictions and death sentences 

affirmed.

(No. 2016-1006—Submitted September 11, 2019—Decided July 21, 2020.) 

APPEAL from the Court of Common Pleas of Cuyahoga County, No. 579539.

__________________ 

DEWINE, J.

{¶ 1} This is a direct appeal in a capital case. Over a nine-month period, 

Michael Madison murdered three women in his East Cleveland apartment. A jury 

found Madison guilty of three counts of aggravated murder, and he was sentenced 

to death on each count. We affirm the convictions and the death sentences. 

I. BACKGROUND 

A. Three Bodies Are Discovered in East Cleveland

{¶ 2} Madison lived in a second-floor apartment on Hayden Avenue in East 

Cleveland. A cable-television company occupied the ground floor. In July 2013, 
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workers at the cable company noticed a foul odor coming from a garage behind the 

building and called the police. In the garage, which was used by Madison and 

several others, the police discovered a large garbage bag jammed between 

Madison’s car and the wall. The officers cut open the bag and found inside the 

decomposing body of Shirellda Terry. The body had been wrapped in a paisley 

bedsheet and then enveloped in multiple layers of garbage bags.

{¶ 3} Searching further, officers discovered another garbage bag under a 

brush pile located behind the garage. In that bag was the decomposing body of 

Shetisha Sheeley. Another garbage bag was discovered in the basement of an 

abandoned house, just 15 to 20 yards from the brush pile. This one held the body 

of Angela Deskins. Like Terry’s body, the bodies of Sheeley and Deskins had been 

placed inside multiple garbage bags. In addition, a sheet and a sports-themed 

blanket were wrapped around the body of Deskins. 

{¶ 4} Autopsies revealed that Terry and Deskins had been strangled to death 

with a belt. Terry had a severe laceration penetrating her vagina and her anus that 

was inflicted while she was still alive. Sheeley had a deep bruise on her face, also 

inflicted while she was alive, but her body was too badly decomposed for the 

medical examiner to determine a precise cause of death. Each victim’s body had 

been bent at the waist, and the head had been bound to the legs. 

B. The Victims and Their Disappearances

{¶ 5} All three women had gone missing within the past year. Twentyeight-year-old Sheeley had last communicated with her family in September 2012. 

At trial, Brittney Darby, one of Madison’s girlfriends, testified that around that 

time, she had noticed a fresh scab on Madison’s nose. When she asked him about 

it, he told her he had broken up a fight between two girls. 

{¶ 6} The father of 38-year-old Angela Deskins lost contact with her around 

May 2013. At trial, a friend of Deskins testified that around this same time, he had 
January Term, 2020 

3

dropped Deskins off at an abandoned barbeque spot in East Cleveland where 

Madison was waiting for her. 

{¶ 7} In the same time period, Darby noticed a strong smell in Madison’s 

apartment. Madison claimed that the smell came from two raccoons who had died 

in the front closet. But when Darby pressed him on the point, Madison began 

sweating profusely and seemed nervous. “You don’t want to see that,” he told her. 

Later that week, Darby could still smell the odor near the closet. She asked 

Madison if that was where the raccoons had been, and he said that it was in an 

irritated tone. 

{¶ 8} Eighteen-year-old Shirellda Terry was last seen alive on July 10, 

2013. She had met Madison a week earlier and exchanged phone numbers with 

him. Over the following days, they texted back and forth. Madison told Terry that 

he was 25 years old and had no kids. (He was actually 35 and had two kids.) 

Madison also lied about what he did for a living. 

{¶ 9} The two discussed when and where they might “hang[] out.” Madison 

suggested that Terry “come to [his] place.” Terry replied: “We can hang[] out but 

I’m not going to your house[;] I don’t trust you like that yet.” On the afternoon of 

July 10, she texted to Madison: “Do you wanna hang[] out now[?]” Madison asked 

if she was headed to his street and she replied that she was “on 152[nd] and [St.] 

Clair right now.” That was Terry’s last message. 

{¶ 10} A few days later, Darby noticed a long, deep scratch on Madison’s 

shoulder. He claimed that he had been in a fight and his adversary’s girlfriend had 

scratched him. Subsequently, another girlfriend of Madison’s, Shawnta Mahone, 

noticed a foul smell in his apartment. Madison claimed he did not know what the 

odor was but said it might be a dead animal. Around the same time, Mahone saw 

several deep scratches on Madison’s face. According to Mahone, Madison told her 

that “he got into a fight and a girl jumped in and scratched his face.” 

 
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C. Madison’s Confession and DNA Evidence

{¶ 11} Detectives interrogated Madison over the course of several days, and 

on July 21, 2013, he signed a four-page confession. He admitted that he had choked 

a woman to death in October 2012 and then left her in his apartment while he went 

out drinking. When he returned, he “folded her up,” put her into multiple layers of 

trash bags, and moved her to the garage. He left the body there for months, then 

moved it outside behind the garage. He did not know this victim’s name. 

{¶ 12} Madison claimed he did not recall actually killing the other victims. 

He admitted that he had invited Terry to his apartment. He was “really drunk and 

high” that night, he said, and did not remember killing her. But he did recall waking 

up next to her dead body and later putting the body in the garage. As to the third 

victim, Deskins, Madison said he did not recall anything about her death or what 

he did with the body. 

{¶ 13} A search of Madison’s apartment turned up a few personal items that 

yielded a DNA profile consistent with Terry’s profile. A piece of bloodstained 

carpet found in the closet where Darby had noticed an odor in May had a DNA 

profile consistent with Deskins’s. And a pillowcase in the apartment had a paisley 

pattern matching the sheet Terry had been wrapped in. 

D. Indictment, Verdicts, and Sentences

{¶ 14} The grand jury returned a 14-count indictment against Madison. The 

indictment included two counts of aggravated murder for each victim—one 

premised on R.C. 2903.01(A), for murder committed with prior calculation and 

design, the other on R.C. 2903.01(B), for felony murder. 

{¶ 15} For the state to impose the death penalty, an indictment must 

include—and the state must prove—one of the specifications set forth in R.C. 

2929.04(A). Here, each aggravated-murder count included a specification alleging 

that the murder was part of a course of conduct involving the purposeful killing or 

attempt to kill two or more victims, see R.C. 2929.04(A)(5), and a felony-murder 
January Term, 2020 

5

specification predicated on kidnapping, see R.C. 2929.04(A)(7). Additionally, the 

aggravated-murder counts involving Terry each included a felony-murder 

specification predicated on rape. 

{¶ 16} The table below shows all the indicted offenses, the death 

specifications, and the other specifications: 

Counts Offenses Death Specifications Other 

Specifications

Count 1 Aggravated murder of Shetisha 

Sheeley under R.C. 2903.01(A) 

(prior calculation and design) 

Each included a course-of-conduct 

specification, R.C. 2929.04(A)(5), 

and a felony-murder specification, 

R.C. 2929.04(A)(7), predicated on 

kidnapping. 

Counts 1 through 

10 each carried a 

sexual-motivation 

specification, 

R.C. 

2941.147(A); 

a sexuallyviolent-predator 

specification, 

R.C. 

2941.148(A); 

a repeat-violentoffender 

specification, 

R.C. 

2941.149(A); 

and a notice of 

prior conviction, 

R.C. 

2929.13(F)(6). 

Count 2 Aggravated murder of Sheeley under 

R.C. 2903.01(B) (felony murder 

predicated on kidnapping) 

Count 3 Kidnapping of Sheeley under R.C. 

2905.01(A)(3) 

Count 4 Aggravated murder of Angela 

Deskins under R.C. 2903.01(A) 

(prior calculation and design) 

Each included a course-of-conduct 

specification, R.C. 2929.04(A)(5), 

and a felony-murder specification, 

R.C. 2929.04(A)(7), predicated on 

kidnapping. 

Count 5 Aggravated murder of Deskins under 

R.C. 2903.01(B) (felony murder 

predicated on kidnapping) 

Count 6 Kidnapping of Deskins under R.C. 

2905.01(A)(3) 

Count 7 Aggravated murder of Shirellda 

Terry under R.C. 2903.01(A) (prior 

calculation and design) 

Each included a course-of-conduct 

specification, R.C. 2929.04(A)(5), 

and two felony-murder 
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Count 8 Aggravated murder of Terry under 

R.C. 2903.01(B) (felony murder 

predicated on kidnapping) 

specifications, R.C. 2929.04(A)(7), 

predicated on kidnapping and rape. Counts 1 through 

8 and 10 each 

carried a firearm 

specification, 

R.C. 

2941.141(A). 

Count 9 Kidnapping of Terry under R.C. 

2905.01(A)(3) 

Count 10 Rape of Terry under R.C. 

2907.02(A)(2) 

Count 11 Having a weapon under a disability 

under R.C. 2923.13(A)(2) 

 Counts 11 through 

14 each carried a 

firearm-forfeiture 

specification, 

R.C. 

2941.1417(A). 

Counts 12 through 

14 each carried a 

firearm 

specification, 

R.C. 2941.141(A) 

Count 12 Gross abuse of a corpse under R.C. 

2927.01(B) (Sheeley) 

Count 13 Gross abuse of a corpse under R.C. 

2927.01(B) (Deskins) 

Count 14 Gross abuse of a corpse under R.C. 

2927.01(B) (Terry) 

{¶ 17} A jury found Madison guilty on Counts 1 through 10 and 12 through 

14, as well as all the death specifications and sexual-motivation specifications. The 

jury found him not guilty of the firearm specifications. Count 11, the weaponunder-a-disability charge, and the remaining specifications were tried to the judge, 

who found Madison guilty of Count 11 and the sexually-violent-predator 

specifications. 
January Term, 2020 

7

{¶ 18} At the close of the penalty phase, the jury recommended death for 

each aggravated-murder count. The trial court merged the aggravated-murder 

counts for each victim, and the state elected to proceed on the counts alleging prior 

calculation and design: Counts 1, 4, and 7. The trial court sentenced Madison to 

death for each murder and imposed prison sentences on the noncapital counts. 

{¶ 19} Madison now appeals, raising 20 propositions of law. 

II. JURY ISSUES

{¶ 20} Madison’s first four propositions of law attack the adequacy of the 

voir dire (proposition of law No. 1) and the trial court’s resolution of challenges for 

cause (propositions of law Nos. 2 and 3) and contend that the practice of deathqualifying capital juries violates the First Amendment to the United States 

Constitution (proposition of law No. 4). None of these claims has merit. 

A. Adequacy of Voir Dire

{¶ 21} In his first proposition of law, Madison asserts that the trial court 

improperly restricted his counsel’s ability to conduct voir dire. Madison lists many 

jurors and prospective jurors whose voir dire he claims was inadequate. But only 

some of these persons actually served on the jury. Because Madison can be 

prejudiced only as a result of restrictions on the voir dire of those who actually 

served on his jury, we will limit our analysis to those jurors only. See State v. 

Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007, 824 N.E.2d 504, ¶ 25. 

1. Questioning to Identify Automatic-Death-Penalty Jurors

{¶ 22} Madison maintains that the trial court prevented his counsel from 

asking questions sufficient to identify jurors who would automatically vote for a 

death sentence without considering mitigating factors. In particular, he argues that 

his counsel should have been allowed to incorporate into their questions the 

“inflammatory” facts of the case—three women kidnapped and murdered, one of 

them raped, and their bodies disposed of “like trash.” This claim applies to seated 

juror Nos. 5, 23, 40, and 43. 
SUPREME COURT OF OHIO

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{¶ 23} The trial judge has discretion over the scope, length, and manner of 

voir dire. See State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 

166, ¶ 40; State v. Getsy, 84 Ohio St.3d 180, 190, 702 N.E.2d 866 (1998). However, 

because “[a] juror who will automatically vote for the death penalty in every case 

* * * has already formed an opinion on the merits” and is therefore not impartial, 

“a capital defendant may challenge for cause any prospective juror who maintains 

such views.” Morgan v. Illinois, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 

492 (1992). And the defendant is entitled to a voir dire adequate to identify such 

jurors. Id. at 729-736. 

{¶ 24} But Morgan does not give the defense a right to ask prospective 

jurors how they will vote “given the specific facts of the individual case.” Hodges 

v. Colson, 727 F.3d 517, 529 (6th Cir.2013); see also Richmond v. Polk, 375 F.3d 

309, 330 (4th Cir.2004). The purpose of voir dire is not to establish how a juror 

will vote on the case to be tried; it is to discover whether any juror has a bias that 

would prevent him or her from individually weighing the facts of the case. 

{¶ 25} We have held that in a capital case involving the death of a young 

child, the defendant is entitled upon request to have the prospective jurors informed 

of the fact that the victim was a child and to ask questions that seek to reveal bias. 

State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 61. 

Jackson’s rationale centers on the fact that the murder of a young child is especially 

likely to evoke strong emotions. Id. at ¶ 60. By its terms, the holding in Jackson

narrowly applies only in death-penalty cases involving the murder of a young child 

and only when the defense seeks to inform the prospective jurors of that fact. And, 

even then, it does not require that prospective jurors be informed of the specific 

details of the murder; they are to be informed only that the victim was a young 

child. 

{¶ 26} We reject Madison’s attempt to extend Jackson beyond the facts of 

that case. We also note that in this case, the trial judge, exercising her discretion, 
January Term, 2020 

9

did allow a fair amount of information about inflammatory facts to be revealed 

during voir dire. The allegations of triple homicide, kidnapping, “sexual[] 

mutilat[ion],” and corpse abuse were all set forth in the jury questionnaire. In 

addition, during the examinations of juror Nos. 5, 40, and 43, the court allowed 

defense counsel to ask questions incorporating inflammatory facts. 

{¶ 27} This portion of Madison’s first proposition of law lacks merit.

2. Use of “Follow the Law” Questions

{¶ 28} Madison also complains that the trial court allowed the prosecution 

to ask the prospective jurors whether they would “follow the law” despite their 

personal views and used the responses to retain jurors who should have been 

excluded under Morgan, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 492. 

Madison contends that permitting these “superficial” questions “denied [him] a 

reasonable opportunity to discover[] necessary information about at least some of 

these juror’s views about capital punishment.” But Madison does not explain how 

the prosecutor’s questions could have impaired his own counsel’s ability to inquire 

into the views of the jurors. We reject this portion of Madison’s first proposition. 

3. Questions about Jurors’ Understanding of Rights and Responsibilities

{¶ 29} Madison additionally contends that the trial court unreasonably

restricted his counsel’s attempts to ask jurors about their understanding of their 

“rights and responsibilities” as jurors in a capital case. He asserts—without citing 

authority—that such questioning is “[e]ssential to an adequate voir dire.” 

{¶ 30} The purpose of voir dire is to determine whether a prospective juror 

has the statutory qualifications to be a juror and is free from bias or prejudice, and 

to facilitate an “intelligent exercise” of peremptory challenges. State v. Anderson, 

30 Ohio St.2d 66, 72, 282 N.E.2d 568 (1972). It is not to indoctrinate jurors or 

instruct them in the law. See State v. Patterson, 188 Ohio App.3d 292, 2010-Ohio2012, 935 N.E.2d 439, ¶ 85-86 (2d Dist.); State v. Carmon, 10th Dist. Franklin No. 

75AP-583, 1976 WL 189810, *2 (June 1, 1976). Furthermore, contrary to 
SUPREME COURT OF OHIO

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Madison’s claims, the trial court did not uniformly prevent defense counsel from 

asking about these matters. 

a. “Personal Moral Judgment”

{¶ 31} Madison complains that the trial court precluded his counsel from 

asking jurors if they understood that they were required to exercise their own 

“personal moral judgment” in weighing aggravating circumstances and mitigating 

factors. This claim applies to seated juror Nos. 5, 9, 30, and 32. 

{¶ 32} Certainly, jurors exercise moral judgment in capital sentencing. But 

Madison cites no authority supporting his claim that he was entitled to ask this 

specific question. In any event, the trial court allowed his counsel to ask questions 

on the topic multiple times. Only when questions became repetitive did the trial 

court sustain objections or tell counsel to “move on.” The record does not indicate 

an abuse of discretion. 

b. “Spark of Humanity”

{¶ 33} Madison next asserts that the trial court improperly prevented his 

counsel from asking jurors if they understood they could consider anything to be 

mitigating, including seeing a “spark of humanity” in the defendant. Again, he cites 

no authority for the proposition that a capital defendant is entitled to ask such a 

question on voir dire. 

{¶ 34} This claim applies to four seated jurors (Nos. 7, 30, 35, and 43). In 

the case of juror No. 30, the “spark of humanity” question was asked without 

objection. This question or similar questions to juror Nos. 7, 35, and 43 were not 

permitted, but the defense did ask these jurors about having moral feelings in one’s 

heart that one cannot articulate and about being able to exercise their “personal 

moral judgment” without any obligation to explain themselves. These questions 

cover concepts similar to the “spark of humanity” question, and the trial court did 

not abuse its discretion by disallowing the question as to some jurors. 

c. Duty to Respect Moral Judgment of Other Jurors
January Term, 2020 

11 

{¶ 35} Madison next objects that the court did not allow his counsel to 

inquire about each juror’s “duty to respect the personal moral judgment of their 

fellow jurors.” This claim applies to six seated jurors (Nos. 23, 24, 30, 32, 40, and 

43). However, it is factually supported only as to juror Nos. 40 and 43. Madison’s 

counsel was allowed to ask this question of the other four, being restricted only 

when the questions became repetitive. And counsel was permitted to ask juror No. 

43 about his obligation to “listen very carefully” and to “consider everything” the 

other jurors might say. 

{¶ 36} In any event, we see no error. Madison cites no authority for this 

alleged duty, nor does he explain why this question is essential to an adequate voir 

dire. 

d. Single-Juror Veto of Death Sentence

{¶ 37} Madison further complains that his counsel was restricted from 

asking jurors if they understood that every juror could preclude a death sentence. 

This claim applies to three seated jurors (Nos. 24, 32, and 40). But defense counsel 

was permitted to tell one of these jurors that “if one juror * * * votes for life, it’s a 

life sentence” and another that “each individual juror has the power of life.” The 

trial court sustained objections only when counsel asked the jurors if they knew that 

all jurors could do this and when counsel described it as an “awesome” power or 

responsibility. Further, counsel was allowed to describe the matter as an important 

responsibility and to ask the jurors to deliberate carefully. No abuse of discretion 

is apparent here. 

e. Death Sentence Will Be Carried Out

{¶ 38} Madison also contends that the trial court improperly barred his 

counsel from inquiring into the jurors’ understanding that if a death sentence is 

imposed in Ohio, it will actually be carried out. This claim applies to one seated 

juror (No. 43). Madison cites no authority establishing a right to ask this question 

on voir dire, and we find no abuse of discretion. 
SUPREME COURT OF OHIO

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4. Failure to Define Aggravation and Mitigation

{¶ 39} In his final challenge to the adequacy of voir dire, Madison takes 

issue with the trial court’s failure to define the terms “aggravating circumstances” 

and “mitigating factors.” But “[a]t the early stage of a trial, the trial court is not 

required to completely instruct the jury, for example, by defining mitigation.” State 

v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 202. This applies 

to aggravating circumstances as well. 

{¶ 40} Madison’s first proposition of law is overruled. 

B. Defense Challenges for Cause

{¶ 41} In his second proposition of law, Madison contends that the trial 

court erroneously overruled his challenges for cause to nine jurors and prospective 

jurors. Juror Nos. 5, 40, and 43 were seated as jurors in this case; the remaining 

six, prospective juror Nos. 11, 12, 29, 31, 34, and 37, were peremptorily challenged 

by the defense. Madison maintains that each should have been excused as 

automatic-death-penalty jurors under Morgan, 504 U.S. 719, 112 S.Ct. 2222, 119 

L.Ed.2d 492. He also says that juror Nos. 40 and 43 should have been excused for 

other reasons. 

{¶ 42} On a challenge for cause, “[t]he ultimate question is whether the 

‘juror sw[ore] that he could set aside any opinion he might hold and decide the case 

on the evidence, and [whether] the juror’s protestation of impartiality [should be] 

believed.’ ” (Brackets sic.) White v. Mitchell, 431 F.3d 517, 538 (6th Cir.2005), 

quoting Patton v. Yount, 467 U.S. 1025, 1036, 104 S.Ct. 2885, 81 L.Ed.2d 847 

(1984). This determination “necessarily involves a judgment on credibility,” State 

v. DePew, 38 Ohio St.3d 275, 280, 528 N.E.2d 542 (1988), so “deference must be 

paid to the trial judge who sees and hears the juror,” Wainwright v. Witt, 469 U.S. 

412, 426, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Hence, a trial court’s resolution 

of a challenge for cause will be upheld unless it is unsupported by substantial 
January Term, 2020 

13 

testimony, so as to constitute an abuse of discretion. State v. Tyler, 50 Ohio St.3d 

24, 31, 553 N.E.2d 576 (1990). 

1. Alleged Automatic-Death-Penalty Jurors

a. Juror No. 5

{¶ 43} At the outset of her voir dire, juror No. 5 stated that she would 

consider the aggravating circumstances and mitigating factors in determining the 

sentence. When asked if she could put her personal opinion aside and follow the 

law even if she thought “someone is deserving of the death penalty but the law 

prohibits” it, she said, “Yes.” After the prosecutor explained what “mitigation” 

meant, she said she would consider mitigation. 

{¶ 44} Juror No. 5 later gave a few contrary responses when Madison’s 

counsel asked her to assume that a defendant had been found guilty of aggravated 

murder with “no legal justification or excuse” in the course of a kidnapping or rape 

or multiple homicides, with 100 percent certainty of guilt. 

{¶ 45} Trying to clarify the juror’s views, the trial court pointed out that she 

had earlier said she would “consider all the possible sentences” but had told defense 

counsel that she would vote to impose a death sentence in the scenario she was 

given. The court asked: “Are you telling me that you would not consider those 

other factors—those other possible sentences?” She answered, “I would still 

mitigate—I would still go through the process to come to a fair decision in my 

heart.” (Emphasis added.) 

{¶ 46} In response to a later defense question, the juror said that if the 

defendant was proven guilty and no mitigating factors existed, she would vote to 

impose a death sentence. But if there were mitigating factors, she said, she “would 

consider them.” She reaffirmed this twice. 

{¶ 47} The trial court asked: “[I]f the mitigating factors indicated to you 

that life with parole at 25 was appropriate, would you do that?” The juror replied: 

“Yes, I would. * * * [I]t goes back to being a fair person, to take everything into 
SUPREME COURT OF OHIO

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consideration and make a decision based on the law and what I feel is appropriate 

I guess.” (Emphasis added.) 

{¶ 48} When a prospective juror gives contradictory answers, it is the trial 

judge’s function to determine her true state of mind. E.g., State v. Group, 98 Ohio 

St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 66. But Madison maintains that a 

juror who indicates a preference for an automatic death penalty is biased under 

Morgan even if the juror states that he or she will follow the law. 

{¶ 49} It is true that a Morgan challenge may not be denied based merely 

on a juror’s answers to “general questions of fairness and impartiality.” (Emphasis 

added.) Morgan, 504 U.S. at 735, 112 S.Ct. 2222, 119 L.Ed.2d 492. But juror No. 

5 “was not merely making a general promise to be fair or to uphold the law.” State 

v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 171. Her 

statements were specific. She repeatedly pledged to consider mitigation and said 

the sentence she would vote to impose would depend on what the mitigating factors 

were. The trial court’s decision to retain her was “supported by substantial 

testimony,” id. at ¶ 173, and was not an abuse of discretion. 

b. Prospective Juror No. 11

{¶ 50} Prospective juror No. 11 said that he was not “predisposed to the 

death penalty.” He understood that he was required to vote for a life sentence if the 

state failed to prove that aggravation outweighed mitigation, and he pledged to “put 

[his] own personal preference aside,” weigh the mitigating factors, and fully 

consider all sentencing options. 

{¶ 51} Defense counsel specifically declined to challenge this prospective 

juror under Morgan and indeed conceded that he was not a Morgan-challengeable 

juror. When the defense challenged this prospective juror for cause, it did so only 

on the ground that the trial court had unduly restricted his voir dire. Now, Madison 

argues that prospective juror No. 11 should have been excluded under Morgan. But 
January Term, 2020 

15 

he waived this claim by declining to assert it at trial. See State v. Bethel, 110 Ohio 

St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 116. 

c. Prospective Juror No. 12 

{¶ 52} Prospective juror No. 12 indicated on his questionnaire that the death 

penalty should be imposed in all murder cases. The trial court outlined the jury’s 

four sentencing options—life in prison with parole eligibility after 25 years, life in 

prison with parole eligibility after 30 years, life in prison without parole, and the 

death penalty—and asked prospective juror No. 12 if he would consider all four 

before rendering his verdict. He replied: “I’d have to see all the information to give 

an honest answer.” The court then asked: “Would you in fact consider any 

mitigating factors that the defense may present * * * and after that weighing 

process, would you return a verdict after fairly and fully considering all those four 

options?” The prospective juror said he would. 

{¶ 53} The trial court asked prospective juror No. 12 why he had indicated 

on his questionnaire that death should be imposed in all murder cases. He replied, 

“[T]hat was my feeling at the time.” When asked if he felt that he “could determine 

the sentence he would impose right now,” he answered, “No.” Instead, he would 

listen to everything, weigh it, and only then make his determination. And he 

reiterated that he would consider all four sentences. He understood that if the 

aggravating circumstances did not outweigh the mitigating factors, it would be his 

duty to vote for a life sentence, and he said he could do that.

{¶ 54} Prospective juror No. 12’s questionnaire response would have made 

him ineligible had he stuck to it. But he did not; he modified his position during 

voir dire. He explained that his response reflected what he thought “at the time,” 

indicating that his views had changed during the voir dire process as he better 

understood the requirements of the law. He said that he had not predetermined his 

verdict and repeatedly stressed the importance of knowing the facts before voting 
SUPREME COURT OF OHIO

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to impose a sentence. The trial court did not abuse its discretion in declining to 

excuse him for cause. 

d. Prospective Juror No. 29

{¶ 55} Prospective juror No. 29 wrote on his questionnaire that “[i]n some 

cases,” capital punishment is “all right.” He also checked a box indicating that the 

death penalty “[s]hould be imposed in most, but not all, murder cases.” 

{¶ 56} On voir dire, prospective juror No. 29 told the trial court that if he 

felt the mitigating factors outweighed the aggravating circumstances, he could 

consider the life-sentencing options that the judge had outlined to him. The court 

asked prospective juror No. 29 whether he would “consider everything that’s 

presented to [him], engage in that weighing process,” and base his verdict on 

whether or not the aggravating circumstances outweighed the mitigating factors 

beyond a reasonable doubt. He said, “Yes.” 

{¶ 57} The prosecutor asked prospective juror No. 29 whether he 

understood that he must impose a life sentence if the state did not prove beyond a 

reasonable doubt that the aggravating circumstances outweighed the mitigating 

factors. He said that he did and that he was comfortable with that. 

{¶ 58} The prosecutor then asked prospective juror No. 29 to explain what 

he meant by “some cases” on his questionnaire. He replied: “It all depends on if 

the person is guilty of the crime, if [it’s] proved * * * that he’s taken someone else’s 

life, then he should give his own life for that life that he’s taken.” The prosecutor 

explained that her question assumed the person had been found guilty and then 

asked: “But what if the state does not prove beyond a reasonable doubt that the 

aggravating circumstances outweigh the mitigating factors? Can you apply the law 

that says that you have to impose” one of the life-sentence options? The 

prospective juror said: “I suppose you can do that, sure.” He also said he could 

apply the law, even though he might not agree with it. The prosecutor then asked 

again whether he could vote for a life sentence if the state failed to prove beyond a 
January Term, 2020 

17 

reasonable doubt that the aggravating circumstances outweighed the mitigating 

factors. He answered, “Yes.” 

{¶ 59} During defense questioning, prospective juror No. 29 stated that in 

his “personal opinion,” a person who takes life “ruthlessly” and without 

justification or excuse gives up his right to live. The trial court then asked: “[I]f 

you feel that the mitigating factors outweigh any aggravating circumstances [sic], 

could you consider the other possibilities [i.e., the life sentencing options]?” He 

said that he could and that he would listen to all the evidence. 

{¶ 60} Defense counsel then asked: “You’ve already said that if somebody 

goes out and kills somebody, as far as you’re concerned in your personal moral 

judgment, it’s the death penalty?” The prospective juror said: “From what I 

understand, * * * they have to prove it beyond whatever reasonable doubt or what 

have you, * * *. If they don’t do it like you’ve already went through it earlier, then 

I could impose one of the other three. (Emphasis added.) Defense counsel said, 

“You’re right on the law” but then asked: “[I]n your mind, in your heart, a guy who 

goes out and does something like that, * * * it’s the death penalty, right?” The 

prospective juror replied: “[I]f they can prove it * * * I can say yes or no to that.” 

(Emphasis added.) 

{¶ 61} The trial court overruled a defense challenge for cause. Madison 

argues that the court abused its discretion in retaining the prospective juror and 

complains that the defense had to later remove him with a peremptory challenge. 

Though at one point, prospective juror No. 29 stated his “personal opinion” that a 

person who takes a life ruthlessly and without justification gives up his right to live, 

he repeatedly said that he would follow the law and could consider imposing a life 

sentence. Taking his voir dire as a whole, the trial court did not abuse its discretion 

by retaining him. 

e. Prospective Juror No. 31
SUPREME COURT OF OHIO

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{¶ 62} Prospective juror No. 31 wrote on her questionnaire that the death 

penalty is warranted “in some henious [sic] cases.” She also checked a box 

indicating that the death penalty is “[a]ppropriate in some murder cases [and] 

inappropriate in other murder cases,” adding that “although murder is horrendous, 

sometimes the circumstances would warrant a less severe sentence.” 

{¶ 63} On voir dire, the prospective juror stated that she understood that the 

state had to prove that the aggravating circumstances outweighed the mitigating 

factors for the death penalty to be imposed. She also acknowledged that if the state 

failed to so prove, she “would be required to make a finding of one of the life 

sentences” and said that she could do so. When asked if she had predetermined the 

sentence, she said that she had not because she had not yet heard the evidence. 

{¶ 64} When asked what she meant by heinous cases, she explained that it 

meant “something that’s beyond * * * an average case—* * * something so 

horrendous that it’s not fathomable.” Defense counsel asked if she regarded the 

facts of the instant case, as stated in the questionnaire, as heinous; the prospective 

juror answered: “If it’s proven.” She also said: “I think in a heinous case I would 

say that all would probably involve the death penalty. * * * In lesser degrees of 

guilt, that there may be other sentences that are more appropriate.” 

{¶ 65} Prospective juror No. 31 did not state that she would automatically 

support a death sentence even for a heinous crime; the closest she came was her 

statement that all heinous cases would “probably involve the death penalty.” 

(Emphasis added.) But she wrote on her questionnaire that death was warranted in 

“some” heinous cases and said on voir dire that she would impose one of the life 

sentences if aggravation did not outweigh mitigation. Considering all her answers, 

the trial court did not abuse its discretion in concluding that she was not an 

automatic-death-penalty juror and in overruling the defense’s challenge for cause. 

f. Prospective Juror No. 34
January Term, 2020 

19 

{¶ 66} Prospective juror No. 34 wrote on his questionnaire that he favored 

the death penalty for all persons convicted of murder. But on voir dire, when asked 

if he could impose a life sentence, he said: “I suppose I could.” The trial court 

explained: “[I]f you find that [the] mitigating factors outweigh any aggravating 

circumstances, then you would be required to return a penalty and not the death 

penalty.” He said he thought he could do that, adding, “it’s hard for me to sit here 

not knowing what those mitigating circumstances may or may not be.” The trial 

court explained that at the appropriate time, the jury would be told what they were. 

The prospective juror said he would be able to consider and weigh them. The trial 

court asked: “[I]f you find the state has not proven beyond a reasonable doubt that 

those aggravating circumstances outweigh the mitigating factors, would you in fact 

as required * * * sign a verdict for one of those life options?” He replied that he 

would do so. 

{¶ 67} Defense counsel later asked about a murderer who killed 

“intentionally * * * after deliberation” and without justification or excuse: “For that 

guilty murderer, in your opinion—not what does the law require, but in your 

opinion—is the death penalty the only appropriate penalty without regard to any 

mitigation?” The prospective juror said, “Yes.” Later, however, defense counsel 

asked: “[W]ill you in fact weigh aggravation and mitigation? Can you do that?” 

He responded, “Yes.” 

{¶ 68} The trial court overruled Madison’s challenge for cause. The 

defense later exercised a peremptory challenge against prospective juror No. 34. 

{¶ 69} Like prospective juror No. 29, prospective juror No. 34 expressed a 

personal view favoring a death sentence in certain circumstances yet also said that 

he would consider mitigating factors, would engage in weighing, and would vote 

for a life sentence if aggravation did not outweigh mitigation. These were not mere 

“general promise[s] to be fair or to uphold the law.” Perez, 124 Ohio St.3d 122, 

2009-Ohio-6179, 920 N.E.2d 104, at ¶ 171. The trial court’s decision to overrule 
SUPREME COURT OF OHIO

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the defense’s challenge for cause as to this prospective juror was based on 

substantial testimony and was not an abuse of discretion. 

g. Prospective Juror No. 37

{¶ 70} Prospective juror No. 37 indicated on his questionnaire that he

believed in the death penalty for “most, but not all, murder cases.” In a number of 

his other questionnaire responses, he stated that it was important to him to consider 

the “details” of the case, including the defendant’s past history, before determining 

a punishment. 

{¶ 71} On voir dire, the prospective juror said he would be able to consider 

one of the life sentences. He understood that he was required to choose a life 

sentence if the state failed to prove beyond a reasonable doubt that aggravating 

circumstances outweighed mitigating factors. He also said he would not 

automatically vote for death without following the law given by the judge. 

{¶ 72} Defense counsel asked prospective juror No. 37 whether, in his 

personal opinion, death would be the only appropriate penalty for a premeditated 

killing, without regard to mitigation. The prospective juror replied: “[I]t would not 

be the only * * * appropriate penalty.” Repeated questioning failed to change his 

answer. Because this prospective juror said he would consider the mitigating 

factors and would not automatically vote for death, the trial court did not err in 

declining to excuse him for cause. 

h. Juror No. 40

{¶ 73} On his questionnaire, juror No. 40 wrote that the death penalty “can 

be necessary for some crimes,” that it is appropriate in some murder cases and not 

in others, and that its appropriateness “really depends on each case [and] the 

situation.” 

{¶ 74} On voir dire, juror No. 40 affirmed that he could consider and impose 

a life sentence “if [the state] didn’t prove beyond a reasonable doubt the aggravating 

circumstances outweigh the mitigating factors.” Indeed, he said he had no 
January Term, 2020 

21 

preconceived idea of what sentence would be appropriate. Although he felt the 

death penalty “should be on the table” for murder, he said he would consider other 

sentences and would not automatically vote for death. 

{¶ 75} Stressing that he sought only juror No. 40’s personal opinion, 

defense counsel asked if he believed that death should be the only appropriate 

penalty, regardless of any mitigation, for an aggravated murder committed during 

a kidnapping or rape. The juror replied, “From what you just described, yes.” 

However, the trial court followed up and asked, “[I]f you found * * * that the 

mitigating factors do outweigh the aggravating circumstances, could you consider 

one of the life options?” The juror said that he “could consider it.” 

{¶ 76} The defense challenged juror No. 40 based on his answer to defense 

counsel’s hypothetical. But the defense’s hypothetical had specifically asked for 

the juror’s personal opinion: “Not a legal quiz, just in your heart, in your opinion.” 

Even though the juror did indicate that in his personal opinion, death would be the 

only appropriate penalty for the crime described, he also repeatedly affirmed that 

he would engage in the statutory weighing and could consider imposing a life 

sentence. 

{¶ 77} Juror No. 40’s voir dire responses as a whole indicate that he was 

not biased in favor of the death penalty. The trial court did not abuse its discretion 

in retaining him. 

i. Juror No. 43

{¶ 78} Juror No. 43’s responses included a few contradictory answers. He 

initially stated that he was opposed to capital punishment. But when defense 

counsel asked whether, after hearing the facts of the case, he had formed the opinion 

that “whoever did this * * * should get the death penalty,” he replied, “Yes, 

definitely.” However, when counsel posed another version of the same question, 

the juror said, “[T]hat never crossed my mind.” Counsel also asked for his personal 

opinion—not for what he thought the law required—about whether a hypothetical 
SUPREME COURT OF OHIO

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person guilty of three murders with kidnapping and rape should get the death 

penalty. The juror said, “Yeah.” 

{¶ 79} The trial court subsequently asked the juror if he would impose a life 

sentence if the aggravating circumstances did not outweigh the mitigating factors, 

and he replied yes. The court questioned whether the juror would automatically 

impose either death or a life sentence, and he said, “[It] depends on how it goes.” 

Defense counsel also asked the juror whether he “like[d] the death penalty.” He 

declined to say that he did; before he could decide, he said, he “ha[d] to see 

everything first.” 

{¶ 80} Juror No. 43 stated that he would impose a life sentence if 

aggravation did not outweigh mitigation. And the record does not indicate that he 

would automatically vote for death. Thus, the court did not abuse its discretion in 

retaining him. 

2. Other Challenges for Cause

{¶ 81} Madison identifies other reasons why he believes the court should 

have excused juror Nos. 40 and 43 for cause. Juror No. 40, Madison argues, was 

unable to state that he could give proper attention to the case, and juror No. 43 had 

“difficulty reading and writing in English.” 

{¶ 82} Juror No. 40 told the trial court that he would give his full attention 

to the case. He did admit the “possibility” that his job might distract him but 

promised he “would do [his] best” to give the trial his full attention. No abuse of 

discretion is evident. 

{¶ 83} Juror No. 43 did not fully complete his questionnaire and did not 

sign it. He indicated privately to the court that he could not read or write. The 

court offered to excuse him prior to his voir dire, and the state moved for excusal, 

but the defense opposed it, arguing that it would violate the juror’s constitutional 

right to serve. On voir dire, the juror explained that he was able to read, albeit 

slowly, but his ability to read “certain things” was limited. After juror No. 43’s 
January Term, 2020 

23 

voir dire, the parties switched positions, with the defense challenging him for cause 

due to his limited reading ability and the state opposing the challenge. The trial 

court denied the challenge. 

{¶ 84} Neither R.C. 2945.25 nor Crim.R. 24(C) specifies that limited 

reading ability is cause for disqualification. Thus, the trial court had discretion to 

determine whether the juror was “unsuitable” under Crim.R. 24(C)(14). Nothing 

in the record indicates an abuse of discretion. 

{¶ 85} To sum up, Madison has not shown that the trial court abused its 

discretion in overruling any of the challenges for cause discussed in this 

proposition. Madison’s second proposition of law is overruled.

C. Prosecution Challenges for Cause

{¶ 86} In his third proposition of law, Madison contends that three 

prospective jurors (Nos. 18, 38, and 45) were improperly excused for cause due to 

their reservations about capital punishment. 

{¶ 87} A prospective juror may not be excluded for cause simply because 

the prospective juror expresses reservations about imposing the death penalty. 

State v. Keith, 79 Ohio St.3d 514, 519-520, 684 N.E.2d 47 (1997), citing 

Witherspoon v. Illinois, 391 U.S. 510, 520-523, 88 S.Ct. 1770, 20 L.Ed.2d 776 

(1968). However, a prospective juror may be excluded for cause if the prospective 

juror’s beliefs about capital punishment “would prevent or substantially impair the 

performance of his duties as a juror in accordance with his instructions and oath.” 

Adams v. Texas, 448 U.S. 38, 45, 100 S.Ct. 2521, 65 L.Ed.2d 581 (1980); see also 

State v. Rogers, 17 Ohio St.3d 174, 478 N.E.2d 984 (1985), paragraph three of the 

syllabus, vacated on other grounds, Rogers v. Ohio, 474 U.S. 1002, 106 S.Ct. 518, 

88 L.Ed.2d 452 (1985). 

1. Prospective Juror No. 18

{¶ 88} Prospective Juror No. 18 wrote on her questionnaire: “I don’t believe 

anyone should be punished for a crime with death,” “I would never agree to impose 
SUPREME COURT OF OHIO

 24 

the death penalty,” “I would not agree to sentence anyone to death,” and “I believe 

the taking of another person’s life is morally wrong.” 

{¶ 89} She said pretty much the same thing in voir dire. She could not 

imagine any circumstance in which she would vote to impose the death penalty, 

“could not morally ever feel right” in imposing a death sentence, “could never agree 

to put somebody to death,” and “could not attach [her] name to” a death verdict. 

When defense counsel inquired if she would “be able to consider * * * aggravation 

and mitigation,” she replied, “Absolutely,” but immediately followed this with, 

“[H]e could be guilty, but I still wouldn’t impose the death penalty.” 

{¶ 90} Prospective juror No. 18 consistently and categorically said that she 

could never vote to impose a death sentence. The trial court justifiably concluded 

that her views would substantially impair her ability to perform as a juror. 

2. Prospective Juror No. 38

{¶ 91} When asked if she could sign a verdict imposing the death penalty if 

the state proved that aggravation outweighed mitigation, prospective juror No. 38 

said, “No.” The trial court noted that she responded “quickly and firmly.” Asked 

if she could set aside her views and follow the law, she answered, “No.” She said 

she could not sign a death verdict under any circumstances. Like prospective juror 

No. 18, this prospective juror unequivocally said she could not set her views aside 

and follow the law in a capital case. The trial court did not abuse its discretion by 

taking her at her word. 

3. Prospective Juror No. 45

{¶ 92} Prospective juror No. 45 was excused for cause after stating that he 

would not follow the law if his conscience said otherwise. Madison contends that 

it was error to excuse this prospective juror, but we need not consider his claim. 

Had prospective juror No. 45 not been excused, he would have been an alternate 

juror. No alternates were substituted for regular jurors in this case; hence, “[e]ven 
January Term, 2020 

25 

if [the prospective juror] had not been excused, [he] would not have deliberated 

[Madison’s] fate,” State v. Jenkins, 15 Ohio St.3d 164, 186, 473 N.E.2d 264 (1984). 

{¶ 93} Madison’s third proposition of law is overruled. 

D. Religious-Freedom Claims

{¶ 94} In his fourth proposition of law, Madison contends that the practice 

of death-qualifying juries violates the Free Exercise and Establishment Clauses of 

the First Amendment by excluding prospective jurors who are opposed to capital 

punishment based upon their religious beliefs. 

{¶ 95} To start with, Madison makes no argument as to why he is entitled 

to raise the religious-freedom rights of the prospective jurors. The United States 

Supreme Court has allowed a defendant third-party standing to challenge on equalprotection grounds the exclusion of petit jurors on the basis of race or sex. See

Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986); J.E.B. v. 

Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 (1994). It has 

not, however, addressed the issue whether a defendant possesses standing to assert 

the rights of petit jurors in other contexts. Nevertheless, even assuming that 

Madison has standing to raise the religious-freedom rights of excluded prospective 

jurors, we have little difficulty rejecting his challenge. 

{¶ 96} The practice of death qualification is authorized by R.C. 2945.25(O), 

which permits a trial court to excuse a prospective juror who “otherwise is 

unsuitable for any other cause to serve as a juror.” See State v. Beuke, 38 Ohio 

St.3d 29, 38, 526 N.E.2d 274 (1988). This court, as well as the United States 

Supreme Court, has repeatedly upheld the “death qualification” process. State v. 

Moore, 81 Ohio St.3d 22, 26, 689 N.E.2d 1 (1998); Lockhart v. McCree, 476 U.S. 

162, 173, 106 S.Ct. 1758, 90 L.Ed.2d 137 (1986). R.C. 2945.25(O) is a facially 

neutral law of general applicability and is not designed to target religious conduct. 

The death-qualification requirement applies neutrally to all prospective jurors, 

regardless of the basis for their unwillingness to consider the death penalty. Thus, 
SUPREME COURT OF OHIO

 26 

the death-qualification procedure does not violate the Free Exercise Clause. See 

Church of the Lukumi Babalu Aye, Inc. v. Hialeah, 508 U.S. 520, 532-534, 542-

545, 113 S.Ct. 2217, 124 L.Ed.2d 472 (1993). Nor is there anything in the practice 

that could be said to violate the First Amendment’s prohibition on government 

action “respecting an establishment of religion.” 

{¶ 97} In addition to his constitutional claims, Madison argues that death 

qualification of jurors violates the Religious Freedom Restoration Act (“RFRA”), 

42 U.S.C. 2000bb-1. This argument is precluded by the holding of the United 

States Supreme Court that RFRA may not constitutionally be applied to the states. 

Boerne v. Flores, 521 U.S. 507, 519-536, 117 S.Ct. 2157, 138 L.Ed.2d 624 (1997). 

{¶ 98} Madison’s fourth proposition of law is overruled. 

III. COMPELLED PSYCHIATRIC EXAMINATION

{¶ 99} Before trial, the defense retained two forensic psychologists to 

evaluate Madison. The trial court also ordered Madison to submit to a pretrial 

mental examination by a state-selected forensic psychiatrist. Dr. Steven Pitt 

conducted the court-ordered examination and testified for the state in the penalty 

phase. During his testimony, portions of his video-recorded interview with 

Madison were played. 

{¶ 100} In his 11th through 13th propositions of law, Madison challenges 

the compelled psychiatric examination. Principally, he claims that ordering the 

examination and admitting the resulting evidence violated the Fifth and Sixth 

Amendments. He also makes an argument based on one of Ohio’s death-penalty 

statutes, R.C. 2929.03(D)(1). 

A. Factual Background

{¶ 101} Before trial, the state moved to require Madison to submit to a

psychological evaluation. The state asserted that Madison had retained multiple 

psychological experts and that it anticipated that these experts would testify about 

Madison’s psychological state before and after the murders. 
January Term, 2020 

27 

{¶ 102} In response, Madison claimed that he had “not given pre-trial notice 

of any intent to put his mental state in issue,” that “neither his competency, nor his 

sanity or mens rea will be an issue” in either phase, and that he was “not putting his 

state of mind in issue.” Madison contended that the state would have “no 

psychiatric evidence to rebut.” Nevertheless, Madison “reserve[d] the right to 

present expert psychological evidence * * * in mitigation that does not call into 

question his mental state.” 

{¶ 103} At a subsequent hearing, the state reiterated its request for a courtordered mental examination. The defense argued that such an order would violate 

the Fifth Amendment and asserted: “We are not placing [Madison’s] mental state 

into issue in either the trial or the mitigation phase.” The state rejoined that a 

defense psychological report it had received in discovery indicated that defense 

experts had found “brain damage,” a claim the state argued it could not rebut 

without an additional examination. The defense denied that it was “claiming brain 

damage” but conceded that its experts had stated that early childhood abuse causes 

“changes in the brain” of the abused person. 

{¶ 104} The trial court asked defense counsel whether they intended to use 

“brain damage as a mitigating factor, should we get there.” Counsel ultimately 

stated that they “anticipate[d]” using it in the penalty phase.

{¶ 105} The trial court granted the state’s motion to have Madison 

evaluated by Dr. Pitt. But the court limited the examination to Madison’s brain 

damage and prohibited questioning about the facts and circumstances of this 

particular case. The defense took an interlocutory appeal to the Eighth District 

Court of Appeals, which stayed the examination during the appeal. The Eighth 

District then affirmed the trial court’s judgment. State v. Madison, 8th Dist. 

Cuyahoga No. 101478, 2015-Ohio-4365, appeal not accepted, 144 Ohio St.3d 

1505, 2016-Ohio-652, 45 N.E.3d 1050. 
SUPREME COURT OF OHIO

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{¶ 106} After the Eighth District’s decision, Dr. Pitt resumed his interview 

with Madison, which had begun prior to the stay. Defense counsel sought to be 

present during the interview to ensure that the limits set by the trial court’s order 

were respected, but the trial court denied this request. 

{¶ 107} During the penalty phase, two defense experts, Drs. Daniel L. 

Davis and Mark D. Cunningham, testified that Madison’s childhood environment 

included a number of adverse factors—including “neurodevelopmental factors” 

such as abuse, neglect, harsh discipline, and head trauma—that are correlated with 

a high risk of negative outcomes, including criminal or violent behavior. They also 

testified that these neurodevelopmental factors have a physical effect on the 

“wiring” of the brain itself: its structure, chemistry, and electrical activity. 

{¶ 108} Dr. Davis explained that the brain does not finish developing until 

a person is 24 or 25 years old. According to Dr. Davis, early exposure to abuse and 

trauma results in negative alterations to the brain’s structure and chemistry. Dr. 

Cunningham also testified about the effect of abuse and other negative childhood 

experiences on the brain’s physiology. 

{¶ 109} The state introduced Dr. Pitt’s testimony in rebuttal. He diagnosed 

Madison as having antisocial-personality disorder. Dr. Pitt’s opinion was that 

Madison’s childhood did not cause him to commit the murders, and he rejected the 

idea that Madison’s ability to make choices in life was limited by his background. 

A video recording of his examination of Madison was admitted into evidence and 

portions of it were shown to the jury. 

B. Madison’s Claims

{¶ 110} Madison contends that the trial court erred by ordering him to 

submit to Dr. Pitt’s mental examination and admitting evidence derived from that 

examination. He argues that (1) implicit within Ohio’s death-penalty statute, R.C. 

2929.03(D)(1), is a broad policy prohibiting the use of such examinations, (2) the 

compelled examination in this case violated the Fifth Amendment because he did 
January Term, 2020 

29 

not place his mental state in issue, (3) ordering the examination unconstitutionally 

forced him to choose between his Fifth Amendment right against self-incrimination 

and his Eighth Amendment right to present mitigating evidence, (4) his Sixth 

Amendment right to counsel was violated because his counsel lacked adequate 

advance notice of the examination’s scope, and (5) his right to counsel was violated 

because counsel was not present for the examination. 

 
SUPREME COURT OF OHIO

 30 

1. R.C. 2929.03(D)(1)

{¶ 111} In his 11th proposition of law, Madison argues that the structure of 

Ohio’s death-penalty statutes limits the state’s ability to force a death-eligible 

defendant to respond to questions unless the defendant chooses to do so. For 

support, he chiefly relies on language in R.C. 2929.03(D)(1), which provides for 

the preparation of presentence-investigation reports and psychiatric reports for 

purposes of mitigation in capital cases at the request of the defendant. See also

R.C. 2947.06. Specifically, he relies on one sentence within R.C. 2929.03(D)(1): 

“A pre-sentence investigation or mental examination shall not be made except on 

the request of the defendant.” He also points to another part of R.C. 2929.03(D)(1) 

that allows a capital defendant to make an unsworn statement in the penalty phase 

without being subjected to cross-examination. Tying these provisions together, he 

infers a “broad policy” that capital defendants may not be “forc[ed] * * * to respond 

to questions.” 

{¶ 112} The problem with this argument is that the mental examination to 

which Madison objects was not done pursuant to R.C. 2929.03(D)(1) but rather to 

allow the state to provide rebuttal evidence. The prohibition in R.C. 2929.03(D)(1) 

applies only to presentence investigations and medical examinations done pursuant 

to that section. We find nothing in R.C. 2929.03(D)(1) that bars a trial court from 

ordering a psychiatric examination of a defendant for the purpose of rebutting 

psychiatric evidence that the defendant intends to introduce. And we decline 

Madison’s invitation to craft a statutory prohibition based on speculation about 

legislative intent. 

2. Fifth Amendment

{¶ 113} Madison also contends in his 11th proposition of law that a 

defendant can be compelled to undergo a state-requested psychiatric examination 

only when he intends to introduce psychiatric evidence that places his state of mind 

directly at issue. Although he says he did not place his mental state at issue, he 
January Term, 2020 

31 

introduced extensive expert testimony during the penalty phase that his background 

and childhood experiences affected the physical structure of his brain, limited his 

ability to make choices, and exposed him to a high risk of negative life outcomes. 

{¶ 114} A defendant “who neither initiates a psychiatric evaluation nor

attempts to introduce any psychiatric evidence, may not be compelled to respond 

to a psychiatrist if his statements can be used against him at a capital sentencing 

proceeding.” Estelle v. Smith, 451 U.S. 454, 468, 101 S.Ct. 1866, 68 L.Ed.2d 359 

(1981). However, “a different situation arises where a defendant intends to 

introduce psychiatric evidence at the penalty phase.” Id. at 472. When a defendant 

presents expert testimony from a psychiatrist who has examined the defendant, the 

prosecution is entitled to rebut that testimony by presenting testimony from an 

expert who has also examined the defendant. In those circumstances, a compelled 

mental examination of the defendant does not violate the Fifth Amendment. See 

Buchanan v. Kentucky, 483 U.S. 402, 422-424, 107 S.Ct. 2906, 97 L.Ed.2d 336 

(1987); Kansas v. Cheever, 571 U.S. 87, 93-95, 134 S.Ct. 596, 187 L.Ed.2d 519 

(2013); State v. Goff, 128 Ohio St.3d 169, 2010-Ohio-6317, 942 N.E.2d 1075, ¶ 58. 

{¶ 115} Buchanan, Cheever, and Goff were not capital cases, but several 

courts have concluded that the rule of Buchanan and Cheever applies when the 

defense presents psychiatric testimony in the penalty phase of a capital case. See 

Williams v. Lynaugh, 809 F.2d 1063, 1068 (5th Cir.1987); State v. Fitzgerald, 232 

Ariz. 208, 303 P.3d 519, ¶ 44-45 (2013); Soria v. State, 933 S.W.2d 46, 55 

(Tex.Crim.App.1996); State v. Ross, 269 Conn. 213, 295-296, 849 A.2d 648 

(2004); Lockett v. State, 2002 OK CR 30, 53 P.3d 418, ¶ 25-26; see also Giarratano 

v. Procunier, 891 F.2d 483, 488 (4th Cir.1989) (“Giarratano’s introduction of 

psychiatric evidence for the purpose of mitigation enabled the prosecution to 

introduce psychiatric evidence, including that derived from an examination of 

Giarratano, to show future dangerousness”); Lockett v. Trammell, 711 F.3d 1218, 

1242 (10th Cir.2013) (state court reasonably held that capital defendant “put his 
SUPREME COURT OF OHIO

 32 

mental health at issue” by presenting psychological evidence in the penalty phase); 

Dillbeck v. State, 643 So.2d 1027, 1030 (Fla.1994). 

{¶ 116} Madison tries to distinguish Buchanan and Cheever by arguing that 

they apply only when the defendant alleges that he has a “mental disease or defect” 

or a “mental condition” that implicates his mens rea, mental capacity to commit a 

crime, or ability to premeditate or when he seeks to establish the existence of a 

“mental disease or defect” mitigating factor under R.C. 2929.04(B)(3). 

{¶ 117} Madison’s narrow reading of Buchanan and Cheever makes little 

sense. Cheever explains that a rule shielding the defendant from examination by 

the state’s expert “would undermine the adversarial process” by depriving the state 

of “the only effective means of challenging” the defendant’s psychological experts. 

Cheever, 571 U.S. at 94, 134 S.Ct. 596, 187 L.Ed.2d 519. Buchanan and Estelle

express similar concerns. Buchanan, 483 U.S. at 422-423, 107 S.Ct. 2906, 97 

L.Ed.2d 336; Estelle, 451 U.S. at 465, 101 S.Ct. 1866, 68 L.Ed.2d 359. 

{¶ 118} This concern is not confined to cases in which psychiatric evidence 

is used in adjudicating guilt, as in Buchanan and Cheever. Nor is it confined to 

cases in which the defense seeks to show the existence of a “mental disease or 

defect” mitigating factor under R.C. 2929.04(B)(3). Instead, Cheever’s reasoning 

logically applies to any case in which a defendant introduces evidence derived from 

a defense expert’s mental examination of the defendant. 

{¶ 119} In such a case, the mental issue is one that the defendant has 

“ ‘interjected into the case,’ ” Buchanan at 422, quoting Estelle at 465. And 

prohibiting examination by the state’s expert would undermine the adversarial 

process, because “the only effective means of challenging” the testimony of the 

defendant’s expert is “testimony from an expert who has also examined him.” 

Cheever at 94. 

{¶ 120} We conclude that in a capital case, when the defendant 

demonstrates an intention to use expert testimony from a mental examination in the 
January Term, 2020 

33 

penalty phase, the Fifth Amendment permits the trial court to order that the 

defendant submit to a mental examination by an expert of the state’s choosing. 

Further, when the defense uses expert testimony from a mental examination in the 

penalty phase, the state may rebut that evidence by presenting expert testimony 

derived from the court-ordered mental examination. Thus, we reject Madison’s 

Fifth Amendment claim. 

{¶ 121} Madison also contends in his 11th proposition that by ordering him 

to submit to the examination by the state’s expert, the trial court forced him to 

forfeit his Fifth Amendment right to remain silent as a condition of exercising his 

Eighth Amendment right to obtain and present mitigating evidence in a capital case. 

Relying upon Simmons v. United States, 390 U.S. 377, 393-394, 88 S.Ct. 967, 19 

L.Ed.2d 1247 (1968), Madison asserts that he cannot be compelled to forfeit one 

constitutional right in order to assert another. 

{¶ 122} Simmons simply held that a defendant’s testimony in support of a 

motion to suppress on Fourth Amendment grounds is inadmissible against him on 

the issue of guilt at trial. “In these circumstances,” the court explained, “we find it 

intolerable that one constitutional right should have to be surrendered in order to 

assert another.” (Emphasis added.) Id. at 394. 

{¶ 123} But Simmons did not hold that a defendant may never have to 

choose between the exercise of constitutional rights. Indeed, the United States 

Supreme Court has cautioned against giving Simmons a “broad thrust.” McGautha 

v. California, 402 U.S. 183, 212-213, 91 S.Ct. 1454, 28 L.Ed.2d 711 (1971), 

vacated in part on other grounds sub nom. Crampton v. Ohio, 408 U.S. 941, 92 

S.Ct. 2873, 33 L.Ed.2d 765 (1972). “ ‘Difficult judgments’ ” are sometimes 

required, and although a defendant may have a constitutional right to follow 

whichever course he chooses, “the Constitution does not by that token always 

forbid requiring him to choose.” Id. at 213, quoting McMann v. Richardson, 397 

U.S. 759, 769, 90 S.Ct. 1441, 25 L.Ed.2d 763 (1970). Instead, a court must ask 
SUPREME COURT OF OHIO

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“whether compelling the election impairs to an appreciable extent any of the 

policies behind the rights involved.” Id. In this instance, it does not. 

{¶ 124} The right to present mitigating evidence in a capital case stems 

from the conclusion of the United States Supreme Court that the Eighth 

Amendment requires that before a defendant may be sentenced to death there must 

be “an individualized determination on the basis of the character of the individual 

and the circumstances of the crime.” (Emphasis sic.) Zant v. Stephens, 462 U.S. 

862, 879, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). When a defendant opts to submit 

psychiatric evidence, the principle of individualized capital sentencing is not 

undermined by requiring the defendant to submit to an examination by a state expert 

so that the state has a fair chance to rebut the defense evidence. 

{¶ 125} Nor does such an examination undermine the policies of the Fifth 

Amendment privilege against compelled self-incrimination. To the contrary, 

[t]he admission of this rebuttal testimony harmonizes with the 

principle that when a defendant chooses to testify in a criminal case, 

the Fifth Amendment does not allow him to refuse to answer related 

questions on cross-examination. A defendant “has no right to set 

forth to the jury all the facts which tend in his favor without laying 

himself open to a cross-examination upon those facts.” * * * When 

a defendant presents evidence through a psychological expert who 

has examined him, the government likewise is permitted to use the 

only effective means of challenging that evidence: testimony from 

an expert who has also examined him. 

Cheever, 571 U.S. at 94, 134 S.Ct. 596, 187 L.Ed.2d 519, quoting Fitzpatrick v. 

United States, 178 U.S. 304, 315, 20 S.Ct. 944, 44 L.Ed. 1078 (1900). 

{¶ 126} Madison’s 11th proposition of law is overruled. 
January Term, 2020 

35 

3. Sixth Amendment

a. Notice of Scope of Examination

{¶ 127} The Sixth Amendment right to counsel requires that defense 

counsel be given prior notice of the nature and scope of a state-sponsored 

psychiatric examination. See Powell v. Texas, 492 U.S. 680, 681, 109 S.Ct. 3146, 

106 L.Ed.2d 551 (1989); Estelle, 451 U.S. at 471, 101 S.Ct. 1866, 68 L.Ed.2d 359, 

citing Powell v. Alabama, 287 U.S. 45, 69, 53 S.Ct. 55, 77 L.Ed. 158 (1932). In 

his 13th proposition of law, Madison contends that Dr. Pitt’s examination exceeded 

the limits set by the trial court and that, as a result, his counsel were not notified of 

the full scope of the examination. 

{¶ 128} The trial court’s order approving the examination provided: “State 

may not inquire into the facts and circumstances of the case. Examination only 

relates to the brain damage of defendant.” The interview was recorded and the 

portions that were played for the jury covered several topics: Madison’s childhood 

and adolescence, his current incarceration, his drug and alcohol use during the 

period leading up to his arrest, whether he was sexually abused as a child, and his 

self-evaluation of character defects and weakness. 

{¶ 129} Though Dr. Pitt’s testimony did not tie all of these areas of inquiry 

directly to Madison’s claim of brain damage, there is nothing in the record that 

establishes that Dr. Pitt exceeded the scope of the court’s order. Questions 

regarding Madison’s childhood, mental status, substance abuse, and self-evaluation 

could all be relevant to Madison’s claim that he suffered from physiological 

changes to his brain. And the recordings make clear that Dr. Pitt adhered to the 

court’s admonition not to inquire into the facts of the case. Thus, Madison has 

failed to demonstrate that his counsel did not receive adequate notice of the scope 

of the examination, and we overrule his 13th proposition of law. 

 
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b. Presence of Counsel during Examination

{¶ 130} In his 12th proposition of law, Madison argues that the Sixth 

Amendment entitles a defendant to have his attorney present during a psychiatric 

examination. In Estelle, the United States Supreme Court held that a defendant has 

a right to the assistance of counsel “before submitting” to a psychiatric interview. 

451 U.S. at 469, 101 S.Ct. 1866, 68 L.Ed.2d 359. But the court specifically 

disavowed any implication of a right to have counsel present during the interview. 

Id. at 471, fn.14. Following Estelle, courts have widely determined that the Sixth 

Amendment does not include a right to have counsel present during a compelled 

psychiatric interview. See, e.g., United States v. Byers, 740 F.2d 1104, 1115-1122 

(D.C.Cir.1984) (plurality opinion); Re v. Snyder, 293 F.3d 678, 682 (3d Cir.2002); 

State v. Martin, 950 S.W.2d 20, 26-27 (Tenn.1997) (citing cases). We agree and 

overrule Madison’s 12th proposition of law. 

IV. EVIDENTIARY ISSUES

A. The Interrogation Videos

{¶ 131} During the guilt phase, the state introduced video recordings of 

portions of Madison’s interrogation by the police. In his sixth proposition of law, 

Madison contends that these videos contained officers’ statements that should have 

been excluded as inadmissible, including accusations of lying and prejudicial 

reflections on Madison’s character. Madison forfeited most of these claims, and 

those he preserved do not amount to reversible error. 

{¶ 132} Madison repeatedly told detectives that he did not remember much 

about the murders due to his excessive drinking and drug use. During one 

interview, Detective Nate Sowa expressed doubt about this, pointing out to 

Madison that after spending three or four days in jail, he was “exhibiting no signs” 

of withdrawal. Detective Raymond Diaz added that people with drinking problems 

are “a wreck” after a day or two without alcohol. Madison admitted, “I can’t really 

explain that.” Madison objected to the jury hearing Sowa’s and Diaz’s statements 
January Term, 2020 

37 

because they were unqualified to give opinions on the subject of alcohol 

dependence. The trial court overruled the objection but instructed the jury that the 

detectives “are not experts in alcohol dependence.” Madison later objected to the 

jury hearing a different detective’s statement questioning his claims of alcohol and 

drug abuse, and the trial court overruled that objection as well. 

{¶ 133} We find no error. It is common knowledge that heavy drinkers 

often suffer withdrawal symptoms when they are forced to go without alcohol. 

Further, the statements made by Sowa and Diaz provided useful context to 

Madison’s admission that he could not explain why he was not going through 

withdrawal. And the statement made by the other detective was not harmful to 

Madison in view of other evidence admitted on this issue. In addition, any possible 

prejudice was dispelled by the trial court’s instruction. 

{¶ 134} Madison points to several other police statements that he says 

should have been redacted as unfairly prejudicial. These include additional 

skeptical comments about his claims of heavy drug and alcohol use, attempts to 

find out how many victims he killed, entreaties to cooperate and show remorse, and 

a detective’s suggestion that Madison got sexually aroused by killing women. 

{¶ 135} The record does not show any objection to these statements at trial. 

Thus, Madison can prevail only by showing plain error. To prevail, he must show 

that an error occurred, that the error was plain, and that but for the error the outcome 

of the trial clearly would have been otherwise. State v. Mammone, 139 Ohio St.3d 

467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 69. 

{¶ 136} The likelihood of prejudice here is low. “[T]he jury was fully

aware * * * [that] the officers were engaged in the interrogation of a criminal 

suspect. In this context, the impact on the average jury would have been much less 

than the same statements made by a police officer on the witness stand at trial.” 

State v. Kidder, 32 Ohio St.3d 279, 285, 513 N.E.2d 311 (1987). 
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{¶ 137} Finding no plain error, we overrule Madison’s sixth proposition of 

law. 

B. Unfairly Prejudicial Evidence

{¶ 138} In his seventh proposition of law, Madison contends that the trial 

court admitted unfairly prejudicial evidence during the guilt phase in violation of 

Evid.R. 403(A), which requires a trial court to exclude relevant evidence “if its 

probative value is substantially outweighed by the danger of unfair prejudice, of 

confusion of the issues, or of misleading the jury.” 

{¶ 139} In his videotaped interview, officers asked Madison multiple times 

if they would find more victims than the three they had already found, and Madison 

replied that he did not know. Madison argues that these statements had no probative 

value and were unfairly prejudicial because they suggested that he may have 

committed other murders. 

{¶ 140} Madison concedes that he “did not specifically object” to these

questions. But he argues that he preserved this claim by asking the trial court, just 

before the video was played, to exclude references to “unsolved homicides.” (The 

state agreed to this request, and the trial court granted it.) The statements that 

Madison now claims were improper, however, did not involve unsolved homicides 

and thus were outside the scope of Madison’s request. Thus, Madison’s failure to 

object at trial forfeits this argument, absent plain error. We find no plain error. 

{¶ 141} Quiana Baker, a friend of Madison’s, testified that Madison had

told her he was “aggravated” with women “acting like they don’t want to fuck” and 

that they made him “want to * * * Anthony Sowell a bitch.”1

 Madison’s objection 

at trial was overruled. The admission of this statement was not error. Madison’s 

statement that he wanted to “Anthony Sowell” a woman was relevant to show intent 

and prior calculation and design. And when considered in the context of the other 

 

1. Anthony Sowell is a Cleveland serial killer who was convicted of killing 11 women and sentenced 

to death. See State v. Sowell, 148 Ohio St.3d 554, 2016-Ohio-8025, 71 N.E.3d 1034, ¶ 1-3. 
January Term, 2020 

39 

evidence presented at trial, its probative value was not outweighed by the danger of 

unfair prejudice. 

{¶ 142} Another friend, Eugenia Thomas, testified that Madison had once

told her he “liked submissive women” and that Madison had “talked about hitting 

women and tying them up” in a sexual context. Defense objections to this 

testimony were overruled. We find no error. All three victims were found with 

bindings around their necks and legs. The fact that Madison enjoyed tying up 

women was directly relevant to the murders. It also supported the sexualmotivation specifications, R.C. 2941.147(A), which required proof that the murders 

were committed with “a purpose to gratify the sexual needs or desires of the 

offender,” R.C. 2971.01(J). 

{¶ 143} Thomas also testified that sometimes during phone conversations, 

Madison would tell her he was “watching the bitches.” She further recounted that 

Madison once told her he wanted to kill the mother of his children because “she 

wouldn’t let him see his kids.” Madison concedes that he did not object to this 

testimony but claims that it was plain error, “especially with respect to the 

sentencing phase.” 

{¶ 144} We disagree. Admitting this testimony was not plain error as to 

either phase. As to the guilt phase, the evidence of Madison’s guilt was 

overwhelming. As to the penalty phase, once Madison had been convicted of 

actually killing three women, the information that he had talked about killing 

another woman or that he sometimes used improper language to refer to women is 

not sufficiently prejudicial to undermine confidence in the jury’s sentencing 

verdict. 

{¶ 145} The video footage of the interrogations played for the jury included 

a brief conversation between Madison and a female detective who brought him 

coffee and shows Madison referring to the detective as “sweetheart” and telling her 

to “be good.” Madison did not object at trial to this portion of the video. His 
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argument that it was inherently prejudicial is unconvincing, and there was no plain 

error. 

{¶ 146} Finally, the jury saw footage of Madison, alone in the interview 

room, talking to himself, displaying anger, and using profanity. Madison did not 

object at trial. He now accuses the state of using this incident to “demonize him.” 

We find no plain error. The jury heard extensive evidence about the three murders; 

if Madison was demonized in the eyes of the jury, it was not from a snippet of video 

of him talking to himself. 

{¶ 147} Madison’s seventh proposition of law is overruled. 

V. SENTENCING ISSUES

A. Exclusion of Mitigating Evidence

{¶ 148} In his tenth proposition of law, Madison asserts that the trial court 

excluded relevant mitigating evidence that he had a constitutional right to present. 

See Skipper v. South Carolina, 476 U.S. 1, 4, 106 S.Ct. 1669, 90 L.Ed.2d 1 (1986); 

Eddings v. Oklahoma, 455 U.S. 104, 114, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). 

1. Testimony on Moral Culpability

{¶ 149} Madison takes issue with the trial court’s ruling that Dr. 

Cunningham could not testify about the concept of “moral culpability.” According 

to the defense’s proffer at trial, Dr. Cunningham would have testified as follows: 

[T]he concept of moral culpability acknowledges [that] * * * we do 

not all arrive at our choices out of equivalent raw material. It 

follows that the degree of “blameworthiness” for an individual for 

criminal or even murderous conduct may vary depending on what 

factors and experiences shaped, influenced, or compromised that

choice. 

* * * The formative or limiting impact from any source of 

developmental damage * * * is relevant in the weighing of moral
January Term, 2020 

41 

culpability. An appraisal of moral culpability involves an 

examination of the degree to which the background and 

circumstances of the defendant influenced, predisposed, or 

diminished the defendant’s moral sensibilities and the exercise of 

* * * free will. 

Madison also argues that Dr. Cunningham should have been allowed to testify 

about United States Supreme Court decisions discussing the role of moral 

culpability in capital sentencing. 

{¶ 150} Dr. Cunningham is a forensic psychologist. Morality is not within 

his field of expertise. Neither is law. His opinion of what is “relevant in the 

weighing of moral culpability” and what affects “the degree of ‘blameworthiness’ 

” would not have “relate[d] to matters beyond the knowledge or experience 

possessed by lay persons,” Evid.R. 702(A). And any discussion of United States 

Supreme Court decisions would have involved matters of law, and opinion 

testimony on matters of law is generally inadmissible. See, e.g., Sikorski v. Link 

Elec. & Safety Control Co., 117 Ohio App.3d 822, 831, 691 N.E.2d 749 (8th 

Dist.1997). The trial court did not abuse its discretion by excluding this testimony. 

2. Connection between Developmental Factors and Choice

{¶ 151} Madison maintains that the trial court improperly excluded 

testimony about the connection between adverse developmental factors and a 

person’s capacity to make choices. He cites three instances when the trial court 

sustained objections to Dr. Cunningham’s use of the term “choice.” But Dr. 

Cunningham did explain to the jury multiple times that the adverse developmental 

factors in Madison’s history limited his range of choices. And Dr. Cunningham 

testified at the close of his direct examination about a person who has such a 

background: “You get a choice, you just don’t get the same choice. You get a 

choice that rests on all the damage of that history.” We find no error. 
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3. Evidence about Certain Adverse Developmental Factors

{¶ 152} Madison asserts that the trial court improperly excluded evidence 

of certain adverse developmental factors in Madison’s background. 

{¶ 153} First, he contends that the trial court erred by excluding PowerPoint 

slides about heritable traits in Madison’s family tree such as alcoholism and 

personality disorders. The slides were excluded because Madison’s counsel had 

failed to make timely disclosure of them to the prosecution. 

{¶ 154} Further, Madison was not barred from presenting evidence about 

the heritability of alcoholism and personality disorders and their prevalence among 

his forebears. Dr. Cunningham testified at length about those subjects. Only the 

slides were excluded. Excluding the slides while allowing the testimony the slides 

illustrated did not violate Madison’s Eighth Amendment right to present mitigation. 

{¶ 155} Second, he complains that the trial court did not let Dr. 

Cunningham testify about the effects of head injuries on Madison. The record, 

however, demonstrates that Dr. Cunningham testified that a head injury is an 

adverse neurodevelopmental factor and that during early childhood and 

adolescence, Madison sustained a number of them. 

{¶ 156} Third, Madison contends that the trial court erred when it did not 

let Dr. Cunningham discuss an incident when Madison was choked at age 10 or 11; 

the trial court excluded this testimony because the incident did not involve any of 

Madison’s relatives. The significance of the choking incident is that hypoxia, or 

“oxygen deprivation to the brain,” and anoxia, or “oxygen cutoff,” are adverse 

neurodevelopmental factors, as Dr. Cunningham testified. 

{¶ 157} Madison, however, was not prevented from presenting evidence 

concerning the possible effect of hypoxia and anoxia on his brain development. Dr. 

Cunningham testified about Madison’s allegations that his mother had more than 

once choked him until he passed out. Therefore, any error in the trial court’s ruling 

is harmless. 
January Term, 2020 

43 

{¶ 158} Fourth, Madison alleges that the trial court erred because it did not 

let Dr. Cunningham testify about certain instances of “sexually perverse behavior 

in [Madison’s] home” (such as his brother being molested) unless Madison was 

aware of the behavior. Madison fails to explain what was wrong with this ruling. 

Dr. Cunningham testified that a child can be damaged when he sees other children 

being abused; he did not say that a child is damaged by abuse of others even when 

the child is unaware that abuse is occurring. The trial court could reasonably 

determine that this testimony was irrelevant to mitigation. 

{¶ 159} Finally, Madison complains that the trial court excluded numerous 

PowerPoint slides as repetitive. But Madison does not dispute that the slides were 

repetitive, and the trial court was not required to admit cumulative evidence. 

Sheppard v. Bagley, 657 F.3d 338, 346 (6th Cir.2011). 

{¶ 160} Madison’s tenth proposition of law is overruled. 

B. Unfairly Prejudicial Evidence in the Penalty Phase

{¶ 161} In his 14th proposition of law, Madison contends that the state

presented unfairly prejudicial evidence in the penalty phase. 

{¶ 162} First, Madison accuses the state of presenting inflammatory 

testimony about his “bad character.” He complains that Dr. Pitt testified that he has 

an antisocial-personality disorder. Madison does not, however, explain why it is 

improper for a psychiatrist to make such a diagnosis of a defendant. 

{¶ 163} Madison also maintains that Dr. Pitt improperly described him as 

“depraved” and “twisted.” But it was the defense that first brought those 

descriptions to the jury’s notice. It is true that Dr. Pitt’s report described Madison 

as “depraved” and “twisted,” but that report was not admitted into evidence. The 

word “depraved” was placed before the jury during defense counsel’s direct 

examination of Madison’s own expert witness, Dr. Cunningham. Dr. Cunningham 

testified on direct that he had read and evaluated Dr. Pitt’s report, of which he was 

quite critical. Defense counsel asked whether the term “depraved individual” is 
SUPREME COURT OF OHIO

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used in the Diagnostic and Statistical Manual of Mental Disorders. 2 Dr. 

Cunningham said it is not and criticized Dr. Pitt for using the term in his report. 

The prosecutor brought up Dr. Pitt’s use of “depraved” only after the defense had 

introduced that term. Similarly, in an effort to discredit Dr. Pitt’s testimony, the 

defense cross-examined him at length on his report’s use of the word “twisted.” 

{¶ 164} Madison also takes issue with the state’s introduction of testimony 

that Madison asked a pen pal to send him pictures of women. Dr. Cunningham, 

however, had already testified regarding Madison’s “disturbed sexuality.” 

Madison further contends that the state improperly introduced testimony that 

Madison has a “victimization mentality,” does not accept responsibility for his acts, 

and is deceitful. But all these matters were relevant to Madison’s antisocialpersonality disorder. The same is true of evidence regarding Madison’s lack of 

“regret” or “remorse” for the murders. (Expert testimony in the penalty phase 

established that the criteria for antisocial-personality disorder include deceitfulness, 

aggressiveness, irresponsibility, and indifference to harming others.) 

{¶ 165} Madison contends that the state improperly introduced evidence 

that he is “fully responsible” for his conduct and has no mental disease or defect. 

But the defense had previously put on evidence that Madison is not fully 

responsible, because his background diminished his ability to make choices. 

Indeed, this was the major theme of his penalty-phase defense in general and Dr. 

Cunningham’s testimony in particular. The state was entitled to cross-examine on 

that point. 

{¶ 166} Madison contends that Dr. Pitt exceeded the scope of the trial 

court’s order in his examination of Madison. We have already rejected that claim 

in overruling Madison’s 12th and 13th propositions of law. 

 

2. Dr. Cunningham explained that the Diagnostic and Statistical Manual of Mental Disorders is the 

classification system of psychological disorders used by American psychologists and psychiatrists. 
January Term, 2020 

45 

{¶ 167} Madison also asserts that the state presented excessive evidence of 

the circumstances of the crimes and improperly referred to “irrelevant details” of 

his prior drug and attempted-rape convictions but offers no specifics to support 

these claims. 

{¶ 168} Finally, Madison complains that the state described him as a serial 

killer. Madison was charged with and found guilty of killing three women on three 

different dates as part of a single course of conduct. The term “serial killer” aptly 

describes Madison’s conduct. Counsel for both sides are entitled to wide latitude 

in closing argument, State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 

N.E.3d 1023, ¶ 197, and “a prosecutor may denounce the defendant’s wrongdoing,” 

State v. Keene, 81 Ohio St.3d 646, 666, 693 N.E.2d 246 (1998). We see no reason 

why a prosecutor may not call a serial killer a serial killer. 

{¶ 169} Madison’s 14th proposition of law is overruled. 

C. Trial Court’s Sentencing Opinion

{¶ 170} In its sentencing analysis, the trial court assigned no mitigating 

weight to Madison’s relationship with his children, “minimal weight” to his 

adaptability to prison, and “some very slight weight” to his history of substance 

abuse. The court also considered his history as a victim of abuse and paternal 

abandonment as well as the “toxic culture” and “intergenerational dysfunction” of 

his family; the court gave his background and childhood “greater weight” than other 

factors but “not * * * great weight.” 

{¶ 171} In his 17th proposition of law, Madison contends that the trial

court’s sentencing opinion violated the Eighth Amendment, because it 

“unreasonably discount[s]” mitigating evidence—i.e., because it assigns no weight 

or insufficient weight to mitigating factors. 

{¶ 172} The United States Supreme Court in Eddings held that the 

sentencer in a capital case may not “refuse to consider, as a matter of law, any 

relevant mitigating evidence.” (Emphasis sic.) 455 U.S. at 114, 102 S.Ct. 869, 71 
SUPREME COURT OF OHIO

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L.Ed.2d 1. But Eddings does not preclude a court from considering mitigating 

evidence and determining that it deserves no weight. State v. Davis, 139 Ohio St.3d 

122, 2014-Ohio-1615, 9 N.E.3d 1031, ¶ 59; see also Harris v. Alabama, 513 U.S. 

504, 512, 115 S.Ct. 1031, 130 L.Ed.2d 1004 (1995). 

{¶ 173} Madison also argues that the trial court improperly “discounted the 

mitigation” by “view[ing] the evidence as not establishing a causal connection to 

Madison’s conduct in committing the murders.” But nothing in the trial court’s 

opinion discusses a lack of causal connection between the claimed mitigating 

factors and the murders. In any event, Madison’s claim does not state an Eighth 

Amendment violation. “Whether mitigating factors help to explain the murder is 

obviously relevant to the weight of those factors and may be considered by the 

sentencer in assigning weight to them.” State v. Roberts, 150 Ohio St.3d 47, 2017-

Ohio-2998, 78 N.E.3d 851, ¶ 70. 

{¶ 174} Madison’s 17th proposition of law is overruled. 

D. Refusal of Mercy Instruction

{¶ 175} Madison argues in his ninth proposition of law that the trial court 

erred by denying his requests that the jury be instructed to consider “mercy.” But 

mercy is not a mitigating factor. State v. Belton, 149 Ohio St.3d 165, 2016-Ohio1581, 74 N.E.3d 319, ¶ 88. The proposition is overruled. 

VI. PROSECUTORIAL MISCONDUCT

A. Voir Dire

{¶ 176} In his fifth proposition of law, Madison contends that the 

prosecutor engaged in misconduct during jury selection. He accuses the prosecutor 

of “employ[ing] a strategy to assert multiple groundless objections” to the defense’s 

voir dire questions in order to “obstruct” counsel’s efforts to identify the jurors who 

were excludable under Morgan, 504 U.S. 719, 729, 112 S.Ct. 2222, 119 L.Ed.2d 

492, as predisposed to impose the death penalty. He offers no specific examples of 
January Term, 2020 

47 

actual “groundless objections” but incorporates by reference many of the arguments 

from his first and second propositions of law. 

{¶ 177} It is true that the prosecutor made numerous objections, but 

Madison was not denied an adequate opportunity to identify Morgan-excludable 

jurors, and no such jurors were seated. Nothing in the record supports Madison’s 

accusation that the prosecutor deliberately made groundless objections as a 

strategy, and the prosecutor’s conduct in this regard did not render Madison’s trial 

unfair, see Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1992) 

(the touchstone of analysis in considering allegations of prosecutorial misconduct 

“is the fairness of the trial, not the culpability of the prosecutor”). Madison’s fifth 

proposition of law is overruled. 

B. “Serial Killer” References

{¶ 178} Madison’s eighth proposition of law posits that it was misconduct 

for the prosecution to refer to him as a “serial killer.” As we have discussed above, 

this appellation was accurate, relevant, and in no way improper. Madison’s eighth 

proposition of law is overruled. 

C. Other Misconduct Claims

{¶ 179} In his 15th proposition of law, Madison contends that the state

committed prosecutorial misconduct in both the guilt and penalty phases. 

1. Guilt Phase

{¶ 180} As to the guilt phase, Madison first claims the prosecution 

improperly introduced the testimony of the family members of the victims, because 

it “went beyond what was proper or necessary” to prove relevant matters. He cites 

two such witnesses: Shirellda Terry’s sister, Britney Terry, and her stepfather, 

Derrick Minor. 

{¶ 181} Britney testified without objection that her sister enjoyed praise 

dancing. When the state asked her to describe her relationship with her sister, 
SUPREME COURT OF OHIO

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however, the trial court sustained a defense objection, and the question went 

unanswered. Thus, no error occurred. 

{¶ 182} Minor testified without objection about Terry’s schooling, straightA average, participation in praise dancing, and employment. He said that she 

worked from 7:30 a.m. to 4:00 p.m. but sometimes left early if there was no work 

to do. He took her to school and to work, and she walked home from work. The 

defense objected only when he testified that she loved “[the l]ibrary, reading, 

poetry.” 

{¶ 183} The state argues that Minor’s testimony was not victim-impact 

evidence but was relevant to establish Terry’s routine and route to and from work. 

But Terry’s love of reading (the only item Madison objected to) was unrelated to 

that purpose. However, this testimony was brief, unemotional, and insignificant; 

any error here was harmless. 

{¶ 184} In his second, third, and fourth arguments under this proposition of 

law, Madison asserts that the prosecutor committed misconduct by not redacting 

the confession videos to eliminate the “improper statements” of detectives, by 

introducing “inflammatory” evidence, and by calling him a “serial killer.” These 

claims reiterate claims made in Madison’s sixth, seventh, and eighth propositions 

of law, which we have rejected above. 

{¶ 185} Next, Madison contends that the prosecutor committed misconduct

in the guilt-phase closing argument by saying Madison was a “professional” killer 

after he committed his second murder. But this was fair comment on the evidence. 

Compare State v. Tibbetts, 92 Ohio St.3d 146, 168, 749 N.E.2d 226 (2001) (“like a 

trained killer” was fair comment). He also complains that the prosecutor referred 

to his comment about wanting to “Anthony Sowell a bitch.” However, as discussed 

in relation to Madison’s seventh proposition of law, this statement was properly 

introduced into evidence and, therefore, could be used in argument. 
January Term, 2020 

49 

{¶ 186} Finally, Madison says that the prosecutor committed misconduct in 

closing argument by arguing that he lacked remorse. It is true that Madison’s lack 

of remorse was irrelevant to guilt. But the guilt-phase evidence was overwhelming, 

so any error was harmless. Moreover, there is no carryover prejudice in the penalty 

phase. Madison’s lack of remorse was discussed by expert witnesses in that phase, 

as it was relevant to the diagnosis of antisocial-personality disorder. 

2. Penalty Phase

{¶ 187} As to the penalty phase, Madison first argues that the prosecutor 

unfairly emphasized the grotesque nature of the murders and the autopsy 

photographs. In cross-examining Dr. Davis, the prosecutor described the crimes as 

“grotesque” and asked Dr. Davis if he had looked at the autopsy photos. Both times 

the trial court sustained defense objections. The prosecutor did not display or 

describe the photos during the penalty phase. Any error stemming from these brief 

incidents was harmless. 

{¶ 188} Madison also complains that the state used the cross-examination 

of Dr. Cunningham “to make speeches and arguments” to the jury. Although he 

provides record citations, he offers no specific examples or analysis. Crossexamination is entitled to wide latitude, and its scope is within the trial court’s 

discretion. State v. Garfield, 34 Ohio App.3d 300, 303, 518 N.E.2d 568 (11th 

Dist.1986), citing State v. Huffman, 86 Ohio St. 229, 99 N.E. 295 (1912). 

Moreover, prosecutorial misconduct constitutes reversible error only if it denies the 

defendant a fair trial. Smith v. Phillips, 455 U.S. at 219, 102 S.Ct. 940, 71 L.Ed.2d 

78. Madison fails to show either that the trial court abused its discretion or that the 

alleged misconduct denied him a fair trial. 

{¶ 189} Next, Madison protests that the prosecutor improperly sought to

discredit his expert witnesses. In cross-examining Dr. Davis, the prosecutor 

suggested that he was “loyal to [his] client,” sought “strategic advantage,” and was 

being “used as a tool to aid in [Madison’s] defense.” The trial court sustained 
SUPREME COURT OF OHIO

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objections to the “client” and “tool” questions, and instructed the jury to disregard 

the “client” question. (Madison did not ask for a curative instruction regarding the 

“tool” question.) No error occurred. See State v. Hale, 119 Ohio St.3d 118, 2008-

Ohio-3426, 892 N.E.2d 864, ¶ 182. 

{¶ 190} As for the “strategic advantage” question, Dr. Davis was hired by 

the defense and the question seems a legitimate attempt to probe possible bias. 

Hence, the trial court did not abuse its discretion by overruling Madison’s 

objection. 

{¶ 191} Madison takes issue with a prosecution question to Dr. Davis 

asking whether Dr. Cunningham was a “professional testifier.” But because the 

trial court sustained his objection, no error occurred. 

{¶ 192} Madison also complains that the prosecutor in closing argument 

attacked Dr. Cunningham’s testimony on the heritability of personality disorders 

by saying, “There’s no heredity to murder. * * * [T]here’s no DNA to rape * * *. 

There’s no DNA to murder. It’s a ridiculous proposition, and * * * it’s never been 

even claimed by anybody * * * responsible that I’ve ever heard of, or irresponsible 

for that matter, to my knowledge.” Madison did not object at trial and does not 

attempt to show that plain error occurred. Hence, this claim is forfeited. 

{¶ 193} Madison accuses the prosecutor of making “groundless objections” 

to his mitigating evidence. We have already rejected this claim in overruling 

Madison’s tenth proposition of law. 

{¶ 194} Madison contends that the prosecutor improperly commented on 

the defense’s failure to call certain witnesses in the sentencing phase, including 

Madison’s mother. A defense objection was overruled when the prosecutor asked 

Dr. Davis if he knew that Madison’s mother lived in the area and that “all they have 

to do is subpoena her * * * and she can come right in here * * * and testify * * *.” 

But the trial court sustained two later objections to similar questions. We find 

nothing improper about the prosecutor’s questions. 
January Term, 2020 

51 

{¶ 195} Madison charges that the prosecutor disparaged him in front of the 

jury. On cross-examination, the prosecutor, referring to Madison, asked Dr. 

Cunningham: “Do you see the guy here on the iPad looking at pictures of ladies 

* * *?” The defense objected, and the trial court cautioned the prosecutor not to 

refer to what Madison was doing and told the jury to disregard the question. The 

defense later asked for a mistrial based on the prosecutor’s discussing “nonevidentiary items.” The trial court denied the motion but instructed the jury that 

“the defendant has no burden of proof, and the defendant is permitted to look at the 

iPad during the course of this trial.” 

{¶ 196} The decision to grant or deny a mistrial lies in the trial court’s 

discretion, and the court should grant one only when justice requires and a fair trial 

is no longer possible. State v. Cepec, 149 Ohio St.3d 438, 2016-Ohio-8076, 75 

N.E.3d 1185, ¶ 89. Madison does not explain how this incident rendered a fair trial 

impossible or why the trial court’s instructions were insufficient to deal with any 

unfair prejudice. 

{¶ 197} Madison complains that in discussing his prior attempted-rape 

conviction, the prosecutor improperly called him a “con artist.” He also contends 

the prosecutor improperly discussed the details of that conviction, Madison’s 

violations of sex-offender reporting obligations stemming from it, and a prior drug 

offense. However, Madison offers no argument or analysis to show why any of 

this was improper. 

{¶ 198} In his penalty-phase closing argument, the prosecutor stated: “It 

would be * * * dishonest morally to violate your oaths.” A defense objection was 

overruled. It is not misconduct to allude to the jurors’ oath. Just before the 

statement here, the prosecutor admonished the jurors to put aside “bias, * * * 

sympathy [and] prejudice” and “act in a logical, reasonable fashion.” It is evident 

that “[t]he prosecutor was not asking the jurors to return a finding of guilty because 

of their oath.” State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 
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1023, ¶ 116, overruled in part on other grounds, State v. Bates, ___ Ohio St.3d ___, 

2020-Ohio-634, ___ N.E.3d ___, ¶ 35. Instead, his statement linked the jurors’ 

oath to their responsibility to act logically, reasonably, and without bias. 

{¶ 199} The prosecutor also said that there was “no reasonable question

whatsoever as to weight”; that it would not be honest to say “a bush is bigger than 

a giant Sequoia tree”; that he had “faith in the people” and “in you [jurors] to do 

the right thing”; that “we owe” it to the victims, society, and the community “to 

follow our oath”; and that “I appreciate * * * the weight you will carry the rest of 

your life thinking about this case and the justice it deserves.” The defense objected 

to none of this at trial, waiving all but plain error. Madison now claims that all of 

it was error, but he cites nothing to show how any of it was improper. Nor does he 

show how these statements undermined the reliability of the penalty-phase verdict. 

Thus, he fails to show plain error. 

{¶ 200} Madison contends that the prosecutor, in examining Dr. Pitt, 

“ignored” the trial court’s admonition that he could explore the issue of “choice” in 

a “limited manner.” But he does not explain how the prosecutor exceeded this 

limitation. The defense objected only once, and the trial court overruled that 

objection. Madison has not shown error. 

{¶ 201} Madison’s remaining claims in this proposition of law repeat 

claims from his 13th and 14th propositions, claims we have already rejected. 

Madison’s 15th proposition of law is overruled. 

VII. INEFFECTIVE ASSISTANCE OF COUNSEL

{¶ 202} In his 16th proposition of law, Madison contends that his trial

counsel rendered ineffective assistance. To establish ineffective assistance, 

Madison must show (1) deficient performance by counsel, i.e., performance falling 

below an objective standard of reasonable representation, and (2) prejudice, i.e., a 

reasonable probability that, but for counsel’s errors, the proceeding’s result would 

have been different. Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 
January Term, 2020 

53 

S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 

373 (1989), paragraphs two and three of the syllabus. 

A. Guilt Phase

{¶ 203} Madison asserts that to the extent counsel failed to object to 

improper statements in the interrogation videos, they rendered ineffective 

assistance. Similarly, he contends they were ineffective to the extent they failed to 

object to prosecutorial misconduct. As he gives no specifics and offers no analysis, 

we reject these claims. 

{¶ 204} He also claims that defense counsel were ineffective by failing to 

object to (1) the police interrogating Madison about the number of victims, (2) 

testimony that Madison talked about “watching the bitches” and wanting to kill the 

mother of his children, (3) his flirting with a female detective, and (4) the portion 

of the video when he was talking to himself. 

{¶ 205} These issues are all raised in Madison’s seventh proposition of law. 

As we have explained in discussing that proposition, the final three of these claims 

do not satisfy the prejudice prong of the plain-error test. Nor do they meet the 

prejudice prong for ineffective assistance. As for the number-of-victims issue, 

Madison fails to show that his trial counsel’s failure to object fell below an 

objective standard of reasonable representation. Thus, Madison has failed to 

demonstrate ineffective assistance as to any of these issues. 

B. Penalty Phase

{¶ 206} Madison contends that to the extent counsel in the penalty phase 

failed to object to unfairly prejudicial evidence or to prosecutorial misconduct, they 

rendered ineffective assistance. Again, he offers no analysis, so we reject these 

claims. 

{¶ 207} Madison asserts that after the state cross-examined Dr. Davis on 

the defense’s failure to call Madison’s mother in the penalty phase, defense counsel 

erred by failing to draft a curative instruction after the trial court had offered counsel 
SUPREME COURT OF OHIO

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an opportunity to do so. But, as stated above in our discussion of Madison’s 15th 

proposition of law, it is unclear how any unfair prejudice resulted from the crossexamination. 

{¶ 208} Finally, Madison argues that defense counsel should have 

requested a penalty-phase instruction to inform the jury about United States 

Supreme Court decisions establishing the relevance of “moral culpability” to 

capital sentencing. He cites no authority, however, for the proposition that a jury 

should be instructed about specific Supreme Court decisions. 

{¶ 209} Madison fails to establish that counsel rendered ineffective 

assistance in either phase of trial. His 16th proposition of law is overruled. 

VIII. CUMULATIVE ERROR

{¶ 210} In his 18th proposition, Madison claims that the cumulative effect 

of the errors alleged in this case denied him a fair trial. “[A] conviction will be 

reversed when the cumulative effect of errors in a trial deprives a defendant of a 

fair trial even though each of the numerous instances of trial-court error does not 

individually constitute cause for reversal.” State v. Powell, 132 Ohio St.3d 233, 

2012-Ohio-2577, 971 N.E.2d 865, ¶ 223. However, because Madison “offers no 

further analysis, this proposition lacks substance.” State v. Sapp, 105 Ohio St.3d 

104, 2004-Ohio-7008, 822 N.E.2d 1239, ¶ 103; see also Bethel, 110 Ohio St.3d 

416, 2006-Ohio-4853, 854 N.E.2d 150, at ¶ 197. Madison’s 18th proposition of 

law is overruled. 

IX. SETTLED ISSUES

{¶ 211} In his 19th proposition of law, Madison repeats several oft-rejected 

arguments against the constitutionality of the death penalty and the Ohio statutes 

governing its imposition and also repeats rejected arguments that the death penalty 

violates international law. See, e.g., State v. Kirkland, 140 Ohio St.3d 73, 2014-

Ohio-1966, 15 N.E.3d 818, ¶ 106, 109-120, vacated in part and remanded on other 

grounds, 145 Ohio St.3d 1455, 2016-Ohio-2807, 49 N.E.3d 318; Jenkins, 15 Ohio 
January Term, 2020 

55 

St.3d at 168-174, 473 N.E.2d 264. We summarily overrule this proposition of law. 

See generally State v. Poindexter, 36 Ohio St.3d 1, 520 N.E.2d 568 (1988), 

syllabus; State v. Spisak, 36 Ohio St.3d 80, 81, 521 N.E.2d 800 (1988). 

X. COURT COSTS

{¶ 212} In his 20th proposition, Madison complains that the trial court

should have told him at sentencing that it intended to impose costs and asks us to 

remand this case to the trial court so he can file a motion to waive costs. A trial 

court “retains jurisdiction to waive, suspend, or modify the payment of costs of 

prosecution * * * at the time of sentencing or at any time thereafter.” R.C. 

2947.23(C). See State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 

1028, ¶ 265. Because Madison can ask for a waiver without a remand, we overrule 

his 20th proposition of law. 

XI. INDEPENDENT SENTENCE REVIEW

{¶ 213} Under R.C. 2929.05, we must independently review Madison’s 

death sentence. We must determine whether the evidence supports the jury’s 

finding of aggravating circumstances, whether the aggravating circumstances 

outweigh the mitigating factors, and whether the death sentence is proportionate to 

death sentences affirmed in similar cases. R.C. 2929.05(A). 

A. Aggravating Circumstances

{¶ 214} The jury found three aggravating circumstances as to Terry’s 

murder: course of conduct under R.C. 2929.04(A)(5) and two felony-murder 

circumstances under R.C. 2929.04(A)(7) (offense committed during rape and 

kidnapping). Two aggravating circumstances each were found as to the murders of 

Deskins and Sheeley: course of conduct and kidnapping. 

{¶ 215} The evidence overwhelmingly supports the course-of-conduct 

specification as to each of the aggravated murders. Madison confessed to 

committing one of the murders. The similarities in the murders indicate that a 

single person killed all three victims. Madison’s admissions and the strong 
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evidence connecting the victims to him and to his residence prove that he was the 

murderer. The similar packaging, storage, and disposal of the bodies also shows a 

course of conduct. See generally Sapp, 105 Ohio St.3d 104, 2004-Ohio-7008, 822 

N.E.2d 1239, at ¶ 52 (course of conduct requires “factual link” between murders 

alleged to constitute the course of conduct). 

{¶ 216} The evidence also supports the rape specification as to Terry. R.C. 

2907.02(A)(2) provides: “No person shall engage in sexual conduct with another 

when the offender purposely compels the other person to submit by force or threat 

of force.” The medical examiner testified that both Terry’s vagina and anus were 

penetrated and that the resulting severe lacerations were probably inflicted with an 

instrument of some sort, possibly a knife. Under R.C. 2907.01(A), “the insertion, 

however slight, of * * * any instrument, apparatus, or other object into the vaginal 

or anal opening of another” constitutes “sexual conduct.” And force or threat of 

force can be inferred from the circumstances. 

{¶ 217} The evidence also supports the kidnapping specification as to 

Terry. The evidence shows that Madison lied to win her trust and that he invited 

her to his apartment. Compare State v. Fox, 69 Ohio St.3d 183, 194, 631 N.E.2d 

124 (1994) (kidnapping by deception occurred when defendant called victim 

pretending to be a prospective employer). As this was the third in a series of 

murders, the jury could reasonably draw the inference that Madison intended to kill 

Terry at the time he invited her to his apartment. 

{¶ 218} As to Sheeley and Deskins, the kidnapping case is far weaker. In 

Sheeley’s case, Madison told police he picked her up at a bar and brought her back 

to his apartment. At trial, the state argued that he had already formed a plan to kill 

Sheeley when he brought her home and that taking her home with him was thus 

kidnapping by deception. But the state fails to direct us to any evidence that 

supports this theory. 
January Term, 2020 

57 

{¶ 219} The state also argued at trial that Madison kidnapped Sheeley by 

restraint, see R.C. 2905.01(A), based on his admission to police that he attempted 

to “restrain” her. But that statement was in the context of his claim that she started 

a fight with him and he was trying to get her out of his apartment. It does not 

amount to an admission of kidnapping. 

{¶ 220} As for Deskins, there is evidence that she was in Madison’s 

apartment at some point. Her DNA was found on the floor of the same closet where 

Darby had noticed a foul smell in May 2013. It is reasonable to infer that Deskins, 

like the other victims, was murdered in Madison’s apartment. But there is no 

evidence showing how she got there. At trial, the state argued that Madison “lured” 

her to the apartment, but again, there is no evidence of that. Deskins used her cell 

phone to call Madison around the time she disappeared, but the record does not 

show what was said in those calls. Finally, the state argued at trial that the bindings 

on Deskins’s body showed kidnapping by restraint. But the medical examiner was 

unable to state that the bindings were placed on the body while Deskins was alive. 

{¶ 221} At oral argument, the state theorized that Madison restrained 

Deskins when he placed the plug of an electrical cord that he had used to bind 

Deskins in her mouth, in what the state says was an attempt to gag her. But the 

photographs of the plug in the record do not support the state’s theory. Rather the 

photographs show only that the plug had been placed loosely between Deskins’s 

lips and not secured in any way. 

{¶ 222} The evidence in the record is insufficient to support the kidnapping 

specifications as to either Sheeley or Deskins. But this does not mean that we 

should vacate Madison’s death sentences for those murders. In both cases, the 

course-of-conduct specification remains valid. When a defendant’s death sentence 

is based in part on an invalid specification, we can cure the error by excluding that 

specification from our independent reweighing of the death sentence, so long as at 

least one valid specification remains. See, e.g., State v. Wesson, 137 Ohio St.3d 
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309, 2013-Ohio-4575, 999 N.E.2d 557, ¶ 97, citing Clemons v. Mississippi, 494 

U.S. 738, 745, 110 S.Ct. 1441, 108 L.Ed.2d 725 (1990); see also State v. Tench, 

156 Ohio St.3d 85, 2018-Ohio-5205, 123 N.E.3d 955, ¶ 309, 311. 

B. Mitigating Factors

{¶ 223} The mitigating factors set forth in R.C. 2929.04(B)(1) through (6) 

do not assist Madison. Youth is not a factor: Madison was 36 years old when he 

committed these murders. See State v. Frazier, 61 Ohio St.3d 247, 258, 574 N.E.2d 

483 (1991). Degree of participation is not a factor: Madison was the sole offender. 

Madison does not lack a substantial criminal record: he was convicted of attempted 

rape in 2002 and he has other convictions. There was no evidence that the victims 

induced or facilitated the murder and no evidence that Madison was under duress, 

coercion, or provocation. As the defense conceded, there was no evidence of any 

mental disease or defect. And the nature and circumstances of the aggravated 

murders offer no mitigation whatsoever. 

{¶ 224} Madison’s chief witnesses in the penalty phase were Drs. Davis and 

Cunningham. Their testimony dealt mostly with Madison’s history, especially his 

childhood, and its effect on his ability to make choices. Drs. Davis and 

Cunningham concluded that Madison’s life contained numerous “risk factors” 

associated with negative life outcomes, including instability, physical abuse, 

neglect and emotional abuse, and substance abuse. 

{¶ 225} Instability: Madison was born in Pennsylvania in 1977. As an 

infant, he moved to Cleveland with his mother. Madison’s paternity was unclear, 

and his father was never involved in his life. His mother had a series of short-term 

relationships with men. Madison grew up with at least 14 “transient parental 

figures” in the household. Few if any were good role models. 

{¶ 226} Madison’s mother also moved frequently. According to Dr. 

Cunningham, frequent moves can disrupt a child’s socialization and undermine his 

sense of security. At various times, Madison was sent to live with relatives and 
January Term, 2020 

59 

with others. In 1993, Madison and his half-brother, J.R. Miller, stayed with an 

uncle in Pennsylvania who abused J.R., had sex with a woman in front of Madison, 

and encouraged the boys to use drugs and watch pornography. 

{¶ 227} Physical Abuse: Madison reported that his mother sometimes 

choked him. She also allegedly beat him with a cord, bruised his eye with her fist, 

stuffed food down his throat, and inflicted “exercise punishments” such as forcing 

him to do pushups for a long time without stopping. Her live-in boyfriends also 

physically abused him, and she did nothing about it. On one occasion, Madison 

was taken to the hospital after one of his mother’s boyfriends severely beat him. 

Madison’s half-brother J.R. was also abused; according to Dr. Cunningham, seeing 

another household member abused is as damaging to a child as being abused. 

{¶ 228} Madison told Dr. Pitt that he had never been sexually abused. 

(However, Dr. Cunningham noted that Madison’s aunt reported that when Madison 

was six, a babysitter had sexually abused him.) Moreover, his first sexual 

experience took place at age 15 with a 35-year-old woman, a situation Dr. 

Cunningham considered “predatory” and “exploitive.” 

{¶ 229} Neglect and Emotional Abuse: Madison’s mother did not ensure 

that he had enough to eat. She did not provide guidance, help him with homework, 

take him to playgrounds or movies, give him Christmas presents, or tell him she 

loved him. She once burned him by bathing him in water that was too hot. 

{¶ 230} Dr. Cunningham opined that chronic stress in childhood—

including disrupted attachments, poor maternal bonding, abuse, and neglect—

causes changes in the brain’s anatomy, electrical activity, and chemistry that 

increase the likelihood of criminal conduct and violence in adulthood. In particular, 

Dr. Cunningham testified that neglect and instability are more damaging to a child 

than physical abuse. Dr. Davis explained that if a child has “unstable or insecure 

attachments” early in life, his brain may fail to develop the pathways that allow 

persons to form healthy emotional attachments. 
SUPREME COURT OF OHIO

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{¶ 231} Dr. Cunningham also testified that lack of empathy and other 

antisocial characteristics have a “hereditability component.” He noted that the 

behavioral history of Madison’s mother and other relatives suggests that such 

dysfunctional traits may have been “genetic[ally] transmit[ted]” to Madison. 

{¶ 232} Dr. Cunningham concluded that Madison is fundamentally 

impaired in his ability to understand the emotional experience of others. He 

conceded that Madison “had choices,” i.e., that he was capable of making choices. 

But in his opinion, Madison lacked the same foundation for making choices that 

“less damaged people” have. According to Dr. Cunningham, it is “very unusual” 

for someone with a history like Madison’s to lead a “highly achieving constructive” 

life. On the other hand, he said not everyone who is subjected to similar adverse 

influences goes on to commit multiple murders. 

{¶ 233} The state called Dr. Pitt in rebuttal. Dr. Pitt diagnosed Madison as 

having antisocial-personality disorder, a condition defined by a pervasive pattern 

of violating the rights of others. Dr. Pitt also saw evidence that Madison has a 

“victimization mindset,” i.e., he tends to see himself as a victim. Like Dr. Davis, 

Dr. Pitt found no evidence that Madison has a mental disease or defect. 

{¶ 234} Dr. Pitt emphatically disagreed with Dr. Cunningham’s conclusion 

that Madison’s history “limit[ed] the range of choices or * * * options that were 

available to him.” He found Madison “entirely capable of making lawful choices.” 

{¶ 235} Dr. Pitt agreed that abuse “may” have an impact on a child’s 

development and that bad parenting can have a lasting effect on one’s personality 

and behavior. Nor did he dispute Dr. Davis’s conclusion that Madison’s childhood 

abuse and emotional trauma may have resulted in a “neurobiologically determined 

pathway placing him at much greater risk for psychological[,] behavior[al,] and 

substance abuse problems.” 

{¶ 236} While conceding some correlation between having a bad childhood

and becoming a violent offender, Dr. Pitt noted that correlation does not prove 
January Term, 2020 

61 

causation and testified that it is impossible to predict who will become an alcoholic, 

a sex offender, or a serial killer. Indeed, he testified that “there are people all across 

this country who have had [Madison’s] background and then some, and have gone 

on to * * * live very productive, happy, successful lives.” And he pointed out that 

the “overwhelming majority” of child-abuse victims, even though they “have to 

live with some demons,” do not go on to commit multiple murders, kidnappings, 

and rapes. Conversely, some people with “terrific upbringings * * * do terrible 

things.” 

{¶ 237} Dr. Cunningham agreed with Dr. Pitt that Madison has a “victim 

mentality,” but said that is evidence of his being “damaged.” He also 

acknowledged that Dr. Pitt’s diagnosis of antisocial-personality disorder was 

“probably” accurate. 

{¶ 238} Substance Abuse: Mental-health experts on both sides diagnosed 

substance-abuse problems. Dr. Cunningham testified that the most powerful risk 

factor for alcohol and drug abuse is heredity and that Madison’s early substance 

abuse indicates a “genetic predisposition” to abuse substances. But Dr. Pitt said 

that the level of drug and alcohol use Madison described in his interview was 

insufficient to cause blackouts, cognitive difficulty, or long-term psychiatric 

problems. Madison’s girlfriend Darby recalled that Madison was not a heavy 

drinker during the timeframe of the murders, contradicting what Madison told the 

police and Dr. Cunningham about his alcohol use. 

{¶ 239} Low Risk to Prison Staff and Inmates: The jury also heard from 

James E. Aiken, a consultant and retired prison administrator, who testified as a 

defense expert witness on corrections and prison environments. Aiken reviewed 

Madison’s prison and jail records, his social history and education, and a “brief 

overview” of his crimes. He concluded that the Department of Rehabilitation and 

Correction could “adequately manage” Madison if he was sentenced to life in 

prison. Aiken testified that Madison’s age and past behavior while incarcerated 
SUPREME COURT OF OHIO

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indicated an “extremely low” probability that Madison would pose a danger to 

prison employees or to other inmates. 

{¶ 240} Relationship with Children: In the guilt phase, Madison’s neighbor 

Asia Stovall, his friend Quiana Baker, and his girlfriend Darby testified that 

Madison was a good father to his two children. In Stovall’s view, Madison’s 

children loved being with him. Baker offered that the children respected and 

obeyed Madison. And Darby said that Madison loved his children and they loved 

him. 

C. Sentence Evaluation

{¶ 241} Madison’s most significant mitigating factor is his abused, unstable 

childhood. But this court has seldom given strong weight to a defendant’s unstable 

or troubled childhood. See, e.g., State v. Campbell, 95 Ohio St.3d 48, 51-54, 765 

N.E.2d 334 (2002); State v. Cooey, 46 Ohio St.3d 20, 41, 544 N.E.2d 895 (1989); 

but see State v. Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, 

¶ 137- 140; State v. Tenace, 109 Ohio St.3d 255, 2006-Ohio-2417, 847 N.E.2d 386, 

¶ 101-106. Madison was 36 years old when he committed these murders. “He had 

reached ‘an age when * * * maturity could have intervened’ and ‘had clearly made 

life choices as an adult before committing’ ” these murders. Campbell at 53, 

quoting State v. Murphy, 65 Ohio St.3d 554, 588, 605 N.E.2d 884 (1992) (Moyer, 

C.J., dissenting). He “had considerable time to distance himself from his childhood 

and allow other factors to assert themselves in his personality and his behavior.” 

Id. 

{¶ 242} Madison’s relationship with his children is entitled to some slight 

weight. His possible voluntary intoxication during the offenses is entitled to little 

weight. See id. at 51. Aiken’s assessment that Madison will not likely be a danger 

to guards or fellow inmates if incarcerated for life deserves some slight weight. 

{¶ 243} With respect to Terry’s murder, we conclude that the three 

aggravating circumstances—kidnapping, rape, and Madison’s course of conduct 
January Term, 2020 

63 

involving three murders in ten months—outweigh the mitigating factors beyond a 

reasonable doubt. As to the murders of Deskins and Sheeley, we conclude in each 

case that the course-of-conduct aggravating circumstance alone outweighs the 

mitigating factors beyond a reasonable doubt. 

D. Proportionality Review

{¶ 244} We further conclude that the imposition of death sentences for these 

crimes is proportionate to sentences approved in similar cases. This court has 

approved death sentences in multiple-murder cases. E.g., Beasley, 153 Ohio St.3d 

497, 2018-Ohio-493, 108 N.E.3d 1028, at ¶ 250; State v. Spaulding, 151 Ohio St.3d 

378, 2016-Ohio-8126, 89 N.E.3d 554, ¶ 229. 

XII. CONCLUSION

{¶ 245} We reverse the trial court’s judgment convicting Madison of 

kidnapping Sheeley and Deskins under Counts 3 and 6 of the indictment, and we 

accordingly vacate the prison sentences imposed for each of those offenses. We 

also reverse the trial court’s judgment on the felony-murder death specifications to 

Counts 2 and 5, which were predicated on kidnapping. Those specifications are 

dismissed. See Tench, 156 Ohio St.3d 85, 2018-Ohio-5205, 123 N.E.3d 955, at 

¶ 311; State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 149. 

{¶ 246} In all other respects, we affirm the judgment of the trial court 

regarding the convictions and sentences. We affirm all three sentences of death. 

Judgment affirmed in part 

and reversed in part. 

O’CONNOR, C.J., and KENNEDY, FRENCH, FISCHER, DONNELLY, and 

STEWART, JJ., concur. 

_________________ 

Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and 

Christopher D. Schroeder, Katherine E. Mullin, and Anna M. Faraglia, Assistant 

Prosecuting Attorneys, for appellee. 
SUPREME COURT OF OHIO

 64 

 Law Office of Timothy Farrell Sweeney and Timothy F. Sweeney; and John 

B. Gibbons, for appellant. 

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