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

NOTICE This slip opinion is subject to f ormal revision before it is pu blished in an advance sheet of the Ohio Official Reports. Readers are reques ted to promptly notify the Reporter of Decisions, Supreme Court of Ohi o, 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.

S LIP O PINION N O
. 2020-O HIO -3735
T HE S TATE OF O HIO , A PPELLEE , v . M ADISON , A PPELLANT
. [Until this opinion appears in t he Ohio Official Reports advanc e sheets, it may be cited as State v. Madison , Slip Opinion No. 2020-Ohio-3735.] Criminal Law—Aggravated murder—Cap ital convictions and death sentences affirmed. (No. 2016-1006—Submitted September 11, 2019—Decided July 21, 20 20.)
A PPEAL from the Court of Common Pl eas of Cuyahoga County, No. 579539.

__________________ D E W INE , J. {¶ 1} This is a direct appeal in a cap ital case. Over a nine-month p eriod, Michael Madison murdered three women in his East Cleveland apar tment. A jury found Madison guilty of three c ounts of aggravated murder, and he was sentenced
to death on each count. We affirm the convictions and the deat h sentences.
I. BACKGROUND
A. Three Bodies Are Discovered in East Cleveland {¶ 2} Madison lived in a second-floor a partment on Hayden Avenue in E ast Cleveland. A cable-television company occupied the ground floo r. In July 2013,S UPREME C OURT OF O HIO

2 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 disc overed a large garbage bag jamme d 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 enve loped in multiple layers of garbage bags. {¶ 3} Searching further, officers di scovered another garbage bag unde r a brush pile located behind the garage. In that bag was the deco mposing body of Shetisha Sheeley. Another garbag e bag was discovered in the ba sement 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 an d Deskins had been placed inside multiple garbage bags. In addition, a sheet and a sports-themed blanket were wrapped ar ound 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 vag ina and her anus that was inflicted while she was still alive. Sheeley had a deep br uise on her face, also inflicted while she was alive, but her body was too badly decom posed for the medical examiner to determine a precise cause of death. Each v ictim’s body had been bent at the waist, and t he 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 las t communicated with her family in September 2012. At trial, Brittney Darby, one of Madison’s girlfriends, testifi ed that around that time, she had noticed a fresh scab on Madison’s nose. When she asked him about it, he told her he ha d broken up a fight be tween 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 hadJanuary Term, 2020

3 dropped Deskins off at an abandone d barbeque spot in East Cleve land where Madison was waiting for her. {¶ 7} In the same time period, Darby noticed a strong smell in Madiso n’s apartment. Madison cla imed that the smell came from two raccoo ns 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 clos et. She asked
Madison if that was where the raccoons had been, and he said th at it was in an
irritated tone. {¶ 8} Eighteen-year-old Shirellda Terry was last seen alive on July 1 0, 2013. She had met Madison a week earlier and exchanged phone n umbers with him. Over the following days, they texted back and forth. Mad ison told Terry that he was 25 years old and had no kids. (He was actually 35 and h ad two kids.)
Madison also lied about wha t he did for a living. {¶ 9} The two discussed when and where they might “hang[] out.” Madi son 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 “o n 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 adver sary’s girlfriend had scratched him. Subsequently, a nother 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 t ime, 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 hi s face.”S UPREME C OURT OF O HIO

4 C. Madison’s Confe ssion 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 admitte d that he had choked a woman to death in October 2012 and then left her in his apart ment while he went out drinking. When he returned, he “folded her up,” put her in to multiple layers of trash bags, and moved her to the garage. He left the body ther e for months, then moved it outside behind the gara ge. He did not know this victi m’s name. {¶ 12} Madison claimed he did not recall actually killing the other vi ctims. 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. B ut he did recall waking up next to her dead body and later putting the body in the gara ge. 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 M ay had a DNA profile consistent with Deskins ’s. And a pillowcase in the apa rtment had a paisley pattern matching the sheet Terry had been wrapped in. D. Indictment, Verdicts, and Sentences {¶ 14} The grand jury returned a 14-c ount indictment against Madison. The
indictment included two counts of aggravated murder for each vi ctim—one premised on R.C. 2903.01(A), for murder committed with prior ca lculation and design, the other on R.C. 2903.01(B), for felony murder. {¶ 15} For the state to impose the deat h 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 spec ification alleging that the murder was part of a course of conduct involving the p urposeful killing or attempt to kill two or more victims, see R.C. 2929.04(A)(5), and a felony-murderJanuary Term, 2020

5 specification predicated on kidnapping, see R.C. 2929.04(A)(7). Additionally, the aggravated-murder counts involvi ng Terry each included a felony -murder specification predi cated on rape. {¶ 16} The table below shows all the indicted offenses, the death specifications, and the ot her 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-murderS UPREME C OURT OF O HIO

6 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 throu gh 14, as well as all the death speci fications and sexual-motivati on specifications. The jury found him not guilty of the firearm specifications. Count11, the weaponunder-a-disability charge, and the remaining specifications wer e tried to the judge, who found Madison guilty of Count 11 and the sexually-violent-p redator specifications.January Term, 2020

7 {¶ 18} At the close of the penalty phase , the jury recommended death f or each aggravated-murder count. The trial court merged the aggra vated-murder counts for each victim, and the st ate elected to proceed on the counts alleging prior calculation and design: Counts 1, 4, and 7. The trial court se ntenced Madison to
death for each murder and im posed prison sentences on the nonca pital 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 reso lution of challenges for cause (propositions of law Nos. 2 and 3) and contend that the p ractice of deathqualifying capital juries violates the First Amendment to the U nited States Constitution (proposition of law No. 4). None of t hese 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 dir e. Madison lists many jurors and prospective jurors whose voir dire he claims was ina dequate. But only some of these persons actually served on the jury. Because Mad ison can be prejudiced only as a result of r estrictions 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 fr om asking questions sufficient to identify jurors who would automa tically vote for a death sentence without considering mitigating factors. In part icular, he argues that
his counsel should have been allowe d to incorporate into their questions the “inflammatory” facts of the cas e—three women kidnapped and murd ered, one of them raped, and their bodies d isposed of “like trash.” This cl aim applies to seated juror Nos. 5, 23, 40, and 43.S UPREME C OURT OF O HIO

8 {¶ 23} The trial judge has discretion over the scope, length, and mann er 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 pe nalty in every case * * * has already formed an opinion on the merits” and is there fore not impartial, “a capital defendant may challenge for cause any prospective ju ror 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 adequ ate 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 t he specific facts of the indi vidual 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 es tablish how a juror will vote on the case to be tried; it is to discover whether an y juror has a bias that would prevent him or her from indi vidually weighing the facts o f the case. {¶ 25} We have held that in a capital case involving the death of a yo ung child, the defendant is entitle d upon request to have the prosp ective jurors informed of the fact that the victim was a child and to ask questions th at 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 chi ld 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 murd er of a young child and only when the defense seeks to inform the prospective juror s of that fact. And, even then, it does not require that prospective jurors be infor med of the specific details of the murder; they are to be informed only that the vi ctim 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, ex ercising her discretion,January Term, 2020

9 did allow a fair amount of info rmation about inflammatory facts to be revealed during voir dire. The allegations of triple homicide, kidnappi ng, “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 i ncorporating inflammatory fac ts. {¶ 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 prosecu tion to ask the prospective jurors whether they would “follow the la w” despite their personal views and used the res ponses to retain jurors who shou ld 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 discove r[] necessary information abou t at least some of these juror’s views about capital punishment.” But Madison doe s not explain how the prosecutor’s questions could have impaired his own counsel’ s ability to inquire into the views of the jurors. W e reject this portion of Madiso n’s first proposition. 3. Questions about Jurors’ Understandi ng of Rights and Responsibilities {¶ 29} Madison additionally contends tha t the trial court unreasonably restricted his counsel’s attempts to ask jurors about their und erstanding of their “rights and responsibilities” as jurors in a capital case. He asserts—without citing authority—that such questioning i s “[e]ssential to an adequate voir dire.” {¶ 30} The purpose of voir dire is to dete rmine 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 challenge s. State v. Anderson , 30 Ohio St.2d 66, 72, 282 N.E.2d 568 (1972). It is not to indo ctrinate 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, cont rary toS UPREME C OURT OF O HIO

10 Madison’s claims, the trial cour t did not uniformly prevent def ense counsel from asking about these matters. a. “Personal Moral Judgment” {¶ 31} Madison complains that the tri al court precluded his counsel fr om asking jurors if they understood that they were required to exe rcise their own “personal moral judgment” in weighing aggravating circumstances and mitigating factors. This claim applie s to seated juror Nos. 5, 9, 30, and 32. {¶ 32} Certainly, jurors exercise mor al judgment in capital sentencing . But Madison cites no authority suppor ting his claim that he was ent itled to ask this specific question. In any event, the trial court allowed his c ounsel to ask questions on the topic multiple times. Only when questions became repeti tive did the trial court sustain objections or te ll counsel to “move on.” The rec ord does not indicate
an abuse of discretion. b. “Spark of Humanity” {¶ 33} Madison next asserts that the t rial court improperly prevented his counsel from asking jurors if they understood they could consid er anything to be mitigating, including seeing a “spark of humanity” in the defen dant. Again, he cites no authority for the proposition that a capital defendant is en titled to ask such a question on voir dire. {¶ 34} This claim applies to four seat ed jurors (Nos. 7, 30, 35, and 4 3). 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 mo ral feelings in one’s
heart that one cannot articulate and about being able to exerci se their “personal moral judgment” without any oblig ation to explain themselves. These questions cover concepts similar to the “sp ark of humanity” question, and the trial court did not abuse its discretion by disallo wing the question as to some jurors. c. Duty to Respect Moral Judgment of Other JurorsJanuary Term, 2020

11 {¶ 35} Madison next objects that the court did not allow his counsel t o inquire about each juror’s “duty to respect the personal moral judgment of their fellow jurors.” This claim app lies 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, bei ng restricted only when the questions became repetitive. And counsel was permitte d to ask juror No. 43 about his obligation to “liste n very carefully” and to “cons ider 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 essentia l 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 preclud e a death sentence. This claim applies to three s eated 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 sustaine d objections only when counsel asked the ju rors if they knew that all jurors could do this and when counsel described it as an “a wesome” power or responsibility. Further, counsel was allowed to describe the m atter as an important responsibility and to ask the jur ors to deliberate carefully. No abuse of discretion is apparent here.
e. Death Sentence Will Be Carried Out {¶ 38} Madison also contends that the tr ial court improperly barred hi s counsel from inquiring into the jurors’ understanding that if a death sentence is imposed in Ohio, it will actually be carried out. This claim a pplies to one seated juror (No. 43). Madison cites no authority establishing a righ t to ask this question on voir dire, and we find no abuse of discretion.S UPREME C OURT OF O HIO

12 4. Failure to Define Ag gravation and Mitigation {¶ 39} In his final challenge to the adequacy of voir dire, Madison ta kes issue with the trial court’s failure to define the terms “aggra vating 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 defin ing mitigation.” State v. Bryan , 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 202. Th is 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, Ma dison contends that the tri al court erroneously overruled his ch allenges for cause to nine ju rors 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 pe remptorily challenged by the defense. Madison maintains that each should have been e xcused 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 hav e been excused for
other reasons. {¶ 42} On a challenge for cause, “[t]he ultimate question is whether t he ‘juror sw[ore] that he could set aside any opinion he might hol d and decide the case on the evidence, and [whether] the juror’s protestation of impa rtiality [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 “nece ssarily 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 unsupporte d by substantialJanuary 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 wou ld consider the aggravating circumstances and mitigating factors i n determining the
sentence. When asked if she coul d put her personal opinion asi de and follow the law even if she thought “someone i s deserving of the death pena lty but the law prohibits” it, she said, “Yes.” A fter 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 gui lty of aggravated murder with “no legal justification or excuse” in the course of a kidnapping or rape or multiple homicides, with 100 per cent certainty of guilt. {¶ 45} Trying to clarify the juror’s views, the trial court pointed ou t that she had earlier said she would “consider all the possible sentences ” but had told defense
counsel that she would vote to im pose a death sentence in the s cenario she was given. The court asked: “Are you telling me that you would not consider those other factors—those other possi ble 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 r eaffirmed this twice. {¶ 47} The trial court asked: “[I]f the mitigating factors indicated t o 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 intoS UPREME C OURT OF O HIO

14 consideration and make a decision based on the law and what I feel is approp riate I guess.” (Emphasis added.) {¶ 48} When a prospective juror gives contradictory answers, it is the trial judge’s function to determin e her true s tate of mind. E.g. , State v. Group , 98 Ohio St.3d 248, 2002-Ohio-7247, 781 N.E.2d 980, ¶ 66. But Madison m aintains 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 uph old the law.” State
v. Perez , 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d 104, ¶ 171. H er statements were specific. She repeatedly pledged to consider m itigation and said the sentence she would vote to impose would depend on what the mitigating factors
were. The trial court’s decisi on 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 t he death penalty.” He understood that he was required to vote for a life sentence if the state failed to prove that aggr avation outweighed mitigation, a nd he pledged to “put [his] own personal preference aside,” weigh the mitigating fact ors, and fully consider all sentencing options. {¶ 51} Defense counsel specifically declined to challenge this prospec tive 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 vo ir dire. Now, Madison argues that prospective juror No. 11 should have been excluded under Morgan . ButJanuary Term, 2020

15 he waived this claim by declin ing 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 th e 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 w ithout parole, and the death penalty—and asked prospective juror No. 12 if he would co nsider 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 co nsider any mitigating factors that the defen se may present * * * and after that weighing process, would you return a verdict after fairly and fully cons idering all those four options?” The prospective juror said he would. {¶ 53} The trial court asked prospectiv e juror No. 12 why he had indic ated on his questionnaire that death s hould be imposed in all murder cases. He replied, “[T]hat was my feeling at the time.” When asked if he felt tha t he “could determine the sentence he would impose right now,” he answered, “No.” In stead, he would listen to everything, weigh it, and only then make his determin ation. And he
reiterated that he would consider all four sentences. He under stood that if the aggravating circumstances did not outweigh the mitigating facto rs, it would be his duty to vote for a life senten ce, and he said he could do that. {¶ 54} Prospective juror No. 12’s ques tionnaire response would have ma de him ineligible had he stuck to it. But he did not; he modified his position during voir dire. He explained that h is response reflected what he th ought “at the time,” indicating that his views had changed during the voir dire proc ess as he better understood the requirements of t he law. He said that he had no t predetermined his verdict and repeatedly stressed the importance of knowing the f acts before votingS UPREME C OURT OF O HIO

16 to impose a sentence. The trial court did not abuse its discre tion 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 b ox indicating that the death penalty “[s]hould be impose d in most, but not all, murder cases.” {¶ 56} On voir dire, prospective juror No. 29 told the trial court tha t if he felt the mitigating factors outweighed the aggravating circumst ances, he could consider the life-sentencing options that the judge had outline d to him. The court asked prospective juror No. 29 whether he would “consider every thing that’s presented to [him], engage in th at weighing process,” and base his verdict on whether or not the aggravating circumstances outweighed the mit igating factors beyond a reasonable doubt. He said, “Yes.” {¶ 57} The prosecutor asked prospec tive 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 a nd that he was comfortable with that. {¶ 58} The prosecutor then asked prospective juror No. 29 to explain w hat he meant by “some cases” on his questionnaire. He replied: “It all depends on if the person is guilty of the cr ime, 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 g uilty and then
asked: “But what if the state does not prove beyond a reasonabl e 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 opt ions? 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 pro secutor then asked again whether he could vote for a life sentence if the state fa iled to prove beyond aJanuary 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 tha t in his “personal opinion,” a person who takes life “ruthlessly” an d 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 c ircumstances [sic], could you consider the other possibilities [i.e., the life sent encing options]?” He
said that he could a nd that he would listen to all the evidence

. {¶ 60} Defense counsel then asked: “You’ ve already said that if somebo dy 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 reasona ble 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 y our heart, a guy who goes out and does something like that, * * * it’s the death pen alty, 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. Madis on argues that the court abused its discretion in retaining the pr ospective juror and complains that the defense had to later remove him with a perem ptory challenge. Though at one point, prospective juror No. 29 stated his “perso nal opinion” that a person who takes a life ruthle ssly and without justification gi ves up his right to live, he repeatedly said that he woul d follow the law and could consi der imposing a life sentence. Taking his voir dire a s a whole, the trial court did not abuse its discretion by retaining him. e. Prospective Juror No. 31S UPREME C OURT OF O HIO

18 {¶ 62} Prospective juror No. 31 wrote on her questionnaire that the de ath penalty is warranted “in some he nious [sic] cases.” She also c hecked a box indicating that the death penalt y is “[a]ppropriate in some mur der cases [and] inappropriate in other murder c ases,” adding that “although mur der is horrendous,
sometimes the circumstances would warrant a less severe sentenc e.” {¶ 63} On voir dire, the prospective juror stated that she understood that the state had to prove that the aggr avating circumstances outweighe d the mitigating factors for the death penalty to be imposed. She also acknowle dged 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 coul d do so. When asked if she ha d predetermined the sentence, she said that she ha d not because she had not yet hea rd the evidence. {¶ 64} When asked what she meant by hei nous cases, she explained that it meant “something that’s beyond * * * an average case—* * * some thing 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 h einous; 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. * * * I n lesser degrees of guilt, that there may be other s entences that are more appropri ate.” {¶ 65} Prospective juror No. 31 did not state that she would automatic ally support a death sentence even fo r 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 deat h was warranted in
“some ” heinous cases and said on voir di re that she would impose one of the life sentences if aggravation did not outweigh mitigation. Consider ing all her answers,
the trial court did not abuse its discretion in concluding that she was not an automatic-death-penalty juror a nd in overruling the defense’s c hallenge for cause. f. Prospective Juror No. 34January Term, 2020

19 {¶ 66} Prospective juror No. 34 wrote on his questionnaire that he fav ored the death penalty for all pers ons 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 outweig h any aggravating circumstances, then you would be required to return a penalty a nd not the death penalty.” He said he thought he could do that, adding, “it’s h ard 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 w ould be able to consider and wei gh them. The trial court asked: “[I]f you find the s tate has not proven beyond a r easonable 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 deliber ation” and without justificat ion 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 witho ut regard to any mitigation?” The prospective juror said, “Yes.” Later, howeve r, defense counsel asked: “[W]ill you in fact weigh aggravation and mitigation? C an you do that?” He responded, “Yes.” {¶ 68} The trial court overruled Madis on’s challenge for cause. The defense later exercised a peremptory challenge against prospect ive juror No. 34. {¶ 69} Like prospective juror No. 29, prospective juror No. 34 express ed a personal view favoring a death sentence i n certain circumstances yet al so 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 de cision to overruleS UPREME C OURT OF O HIO

20 the defense’s challenge for cause as to this prospective juror was based on substantial testimony and w as 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 f or “most, but not all, murder ca ses.” In a number of his other questionnaire responses , he stated that it was import ant to him to consider the “details” of the case, incl uding the defendant’s past histo ry, before determining a punishment. {¶ 71} On voir dire, the prospective ju ror said he would be able to co nsider 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 w ould not automatically vote for death without following the law given by the judge. {¶ 72} Defense counsel asked prospectiv e juror No. 37 whether, in his personal opinion, death would be t he only appropriate penalty f or a premeditated killing, without regard to mitigation. The prospective juror r eplied: “[I]t would not be the only * * * appropriate pena lty.” Repeated questioning f ailed to change his answer. Because this prospective juror said he would consider the mitigating
factors and would not automatical ly vote for death, the trial c ourt did not err in declining to excuse him for cause.
h. Juror No. 40 {¶ 73} On his questionnaire, juror No. 40 w rote that the death penalty “can be necessary for some crimes,” that it is appropriate in some m urder cases and not in others, and that its appropriateness “really depends on each case [and] the
situation.” {¶ 74} On voir dire, juror No. 40 affi rmed that he could consider and impose a life sentence “if [the state] didn’t prove beyond a reasonabl e doubt the aggravating circumstances outweigh the mitigating factors.” Indeed, he sai d he had noJanuary Term, 2020

21 preconceived idea of what senten ce would be appropriate. Altho ugh he felt the death penalty “should be on the tab le” for murder, he said he w ould consider other
sentences and would not autom atically vote for death. {¶ 75} Stressing that he sought only ju ror No. 40’s personal opinion,
defense counsel asked if he be lieved that death should be the o nly appropriate penalty, regardless of any mitigation, for an aggravated murder committed during a kidnapping or rape. The juror replied, “From what you just d escribed, yes.” However, the trial court followed up and asked, “[I]f you found * * * that the mitigating factors do outweigh the aggravating circumstances, c ould you consider one of the life options?” The ju ror said that he “could consid er it.” {¶ 76} The defense challenged juror No. 40 based on his answer to defe nse counsel’s hypothetical. But the defense’s hypothetical had spe cifically asked for the juror’s personal opinion: “Not a legal quiz, just in your heart, in your opinio n.” Even though the juror did indicat e that in his personal opinion , death would be the only appropriate penalty for the c rime described, he also repea tedly affirmed that he would engage in the statutory weighing and could consider im posing 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 pe nalty. 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. Bu t 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 th e same question, the juror said, “[T]hat never crossed my mind.” Counsel also a sked for his personal opinion—not for what he thought the law required—about whether a hypotheticalS UPREME C OURT OF O HIO

22 person guilty of three murders with kidnapping and rape should get the death penalty. The juror said, “Yeah.” {¶ 79} The trial court subsequently ask ed the juror if he would impose a life sentence if the aggravating circ umstances did not outweigh the mitigating factors, and he replied yes. The court questioned whether the juror wou ld automatically impose either death or a life sentence, and he said, “[It] depe nds on how it goes.” Defense counsel also asked the juror whether he “like[d] the de ath penalty.” He declined to say that he did; bef ore he could decide, he said, h e “ha[d] to see everything first.” {¶ 80} Juror No. 43 stated that he would impose a life sentence if aggravation did not outweigh mitig ation. And the record does n ot indicate that he would automatically vote for d eath. Thus, the court did not ab use its discretion in retaining him. 2. Other Challenges for Cause {¶ 81} Madison identifies other reasons why he believes the court shou ld have excused juror Nos. 40 and 43 for cause. Juror No. 40, Mad ison argues, was
unable to state that he could give proper a ttention 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 a ttention 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 at tention. No abuse of
discretion is evident. {¶ 83} Juror No. 43 did not fully compl ete his questionnaire and did n ot sign it. He indicated privately to the court that he could not read or write. The court offered to excuse him prio r to his voir dire, and the sta te moved for excusal, but the defense opposed it, arguing that it would violate the j uror’s constitutional right to serve. On voir dire, th e juror explained that he was able to read, albeit slowly, but his ability to read “certain things” was limited. After juror No. 43’sJanuary Term, 2020

23 voir dire, the parties switched positions, with the defense cha llenging him for cause due to his limited reading ability and the state opposing the c hallenge. The trial
court denied t he challenge. {¶ 84} Neither R.C. 2945.25 nor Crim.R. 24(C) specifies that limited reading ability is cause for dis qualification. 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 it s discretion in overruling any of t he challenges for cause discus sed in this proposition. Madison’s second pr oposition 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 excuse d for cause due to their reservations about capital punishment. {¶ 87} A prospective juror may not be excluded for cause simply becaus e 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 puni shment “would prevent or subs tantially impair the performance of his duties as a juror in accordance with his ins tructions 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 b elieve anyone should be punished for a crime with death,” “I would nev er agree to imposeS UPREME C OURT OF O HIO

24 the death penalty,” “I would not agree to sentence anyone to de ath,” 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 no t imagine any circumstance in which she would vote to impose the death penalty, “could not morally ever feel right ” in imposing a death sentenc e, “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, “Abs olutely,” but immediately fol lowed this with, “[H]e could be guilty, but I still wouldn’t impose the death pe nalty.” {¶ 90} Prospective juror No. 18 consiste ntly and categorically said th at she
could never vote to impose a death senten ce. The trial court justifiably concluded
that her views would substantia lly impair her ability to perfor m as a juror. 2. Prospective Juror No. 38 {¶ 91} When asked if she could sign a verdict imposing the death penal ty if the state proved that aggrava tion outweighed mitigation, prospe ctive juror No. 38 said, “No.” The trial court not ed that she responded “quickly and firmly.” Asked
if she could set aside her views and follow the law, she answer ed, “No.” She said she could not sign a death verdict under any circumstances. Li ke 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 th at he
would not follow the law if his conscience said otherwise. Mad ison 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 be en an alternate juror. No alternates were substituted for regular jurors in th is case; hence, “[e]venJanuary 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 propositi on of law is overruled. D. Religious-Freedom Claims {¶ 94} In his fourth proposition of law, Madison contends that the pra ctice of death-qualifying juries violates the Free Exercise and Estab lishment Clauses of the First Amendment by excluding prospective jurors who are opp osed to capital punishment based upon their religious beliefs. {¶ 95} To start with, Madison makes no argument as to why he is entitl ed to raise the religious-freedom rights of the prospective jurors . The United States Supreme Court has allowed a defe ndant third-party standing to c hallenge on equalprotection grounds the exclusion of petit jurors on the basis o f 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 wh ether a defendant possesses standing to assert the rights of petit jurors in other contexts. Nevertheless, ev en assuming that Madison has standing to raise the religious-freedom rights of e xcluded prospective jurors, we have little difficulty rejecting his challenge. {¶ 96} The practice of death qualifica tion 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 th e 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 tar get religious conduct. The death-qualification requireme nt applies neutrally to all pr ospective jurors, regardless of the basis for their unwillingness to consider the death penalty. Thus,S UPREME C OURT OF O HIO

26 the death-qualification procedur e does not violate the Free Exe rcise Clause. See Church of the Lukumi Babal u 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 anyt hing in the practice that could be said to violate the First Amendment’s prohibition on government action “respecting an estab lishment of religion.” {¶ 97} In addition to his constitutional claims, Madison argues that d eath qualification of jurors violates t he Religious Freedom Restorat ion 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 appl ied 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 proposi tion of law is overruled.
III. COMPELLED PSYCHIATRIC EXAMINATION {¶ 99} Before trial, the defense retain ed two forensic psychologists t o evaluate Madison. The trial court also ordered Madison to subm it to a pretrial mental examination by a state-selected forensic psychiatrist. Dr. Steven Pitt
conducted the court-ordered examin ation and testified for the s tate in the penalty phase. During his testimony, portions of his video-recorded in terview with Madison were played. {¶ 100} In his 11th through 13th propositions of law, Madison challenge s the compelled psychiatric examination. Principally, he claims that ordering the examination and admitting the resulting evidence violated the F ifth and Sixth Amendments. He also makes an argument based on one of Ohio’s d eath-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 s tate asserted that Madison had retained multiple psychological experts and that it anticipated that these expert s 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 n otice of any intent to put his mental s tate 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 woul d 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 st ate reiterated its request for acourtordered mental examination. The d efense argued that such an or der 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 s tate rejoined that a defense psychological report it had received in discovery indic ated that defense experts had found “brain damage,” a claim the state argued it c ould not rebut
without an additional examinati on. The defense denied that it was “claiming brain damage” but conceded that its experts had stated that early chi ldhood abuse causes “changes in the brain” of the abused person. {¶ 104} The trial court asked defense c ounsel whether they intended to use “brain damage as a mitigating factor, should we get there.” Co unsel 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 t o Madison’s brain damage and prohibited questioning about the facts and circumsta nces of this particular case. The defense took an interlocutory appeal to t he Eighth District Court of Appeals, which stayed the examination during the appea l. 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.S UPREME C OURT OF O HIO

28 {¶ 106} After the Eighth District’s d ecision, Dr. Pitt resumed his inte rview with Madison, which had begun prior to the stay. Defense couns el sought to be present during the interview to ensure that the limits set by t he trial court’s order were respected, but the trial c ourt denied this request. {¶ 107} During the penalty phase, two de fense experts, Drs. Daniel L. Davis and Mark D. Cunningham, t estified that Madison’s childhoo d environment
included a number of adverse fact ors—including “neurodevelopmen tal factors” such as abuse, neglect, harsh di scipline, and head trauma—that are correlated with a high risk of negative outcomes, including criminal or violent behavior. They also
testified that these neurodevel opmental factors have a physical effect on the “wiring” of the brain itself: its structure, che mistry, and ele ctrical activity. {¶ 108} Dr. Davis explained that the bra in does not finish developing u ntil 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 t he effect of abuse and other n egative childhood experiences on the brain’s physiology. {¶ 109} The state introduced Dr. Pitt’s testimony in rebuttal. He diag nosed Madison as having antisocial-personality disorder. Dr. Pitt’s opinion was that Madison’s childhood did not cause him to commit the murders, an d 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 in to 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-p enalty statute, R.C. 2929.03(D)(1), is a broad policy prohibiting the use of such ex aminations, (2) the compelled examination in this case violated the Fifth Amendment because he didJanuary Term, 2020

29 not place his mental state in issue, (3) ordering the examinati on 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 v iolated because his counsel lac ked adequate
advance notice of the examinati on’s scope, and (5) his right to counsel was violated because counsel was not present for the examination.S UPREME C OURT OF O HIO

30 1. R.C. 2929.03(D)(1) {¶ 111} In his 11th proposition of law, Madison argues that the structu re of Ohio’s death-penalty statutes limits the state’s ability to for ce 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), w hich provides for the preparation of presentence-i nvestigation reports and psychi atric reports for purposes of mitigation in capital cases at the request of the d efendant. 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 b e 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 t o make an unsworn statement in the penalty phase without being subjected to cross- examination. Tying these prov isions together, he infers a “broad policy” that cap ital defendants may not be “for c[ed] * * * to respond to questions.” {¶ 112} The problem with this argument is that the mental examination t o 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 examinat ions done pursuant to that section. We find nothing in R.C. 2929.03(D)(1) that ba rs a trial court from ordering a psychiatric examinati on of a defendant for the purpo se of rebutting psychiatric evidence that the d efendant 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 psychia tric examination only when he intends to introduce psychiatric evidence that pla ces his state of mind directly at issue. Although he says he did not place his menta l state at issue, heJanuary Term, 2020

31 introduced extensive expert testimony during the penalty phase that his background and childhood experiences affected t he physical structure of hi s brain, limited his ability to make choices, and ex posed him to a high risk of nega tive life outcomes. {¶ 114} A defendant “who neither initiates a psychiatric evaluation nor attempts to introduce any psychiatric evidence, may not be comp elled 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 defenda nt 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 t estimony from an expert who has also examined the d efendant. In those circumsta nces, a compelled
mental examination of the defenda nt 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 hisS UPREME C OURT OF O HIO

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 “menta l disease or defect” or a “mental condition” that implicates his mens rea, mental ca pacity 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 undermin e the adversarial process” by depriving the state of “the only effective means of c hallenging” the defendant’s ps ychological 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 evid ence 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 “me ntal 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 e vidence derived from a defense expert’s mental ex amination 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 s tate’s expert would undermine t he adversarial process, because “the only effective means of challenging” the testimony of the defendant’s expert is “testimony from an expert who has also ex amined 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 theJanuary Term, 2020

33 penalty phase, the Fifth Amendment permits the trial court to o rder that the defendant submit to a mental examination by an expert of the st ate’s choosing. Further, when the defense uses expert testimony from a mental e xamination in the penalty phase, the state may rebut that evidence by presenting expert testimony
derived from the court-ordered mental examination. Thus, we re ject 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 c ourt forced him to forfeit his Fifth Amendment right to remain silent as a conditi on of exercising his Eighth Amendment right to obtain and present mitigating evidenc e 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 compelle d to forfeit one constitutional right in or der 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 constitutiona l right should have to be sur rendered 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’ ” a re sometimes required, and although a defenda nt may have a constitutional ri ght 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 askS UPREME C OURT OF O HIO

34 “whether compelling the election impairs to an appreciable exte nt any of the policies behind the r ights involved.” Id . In this instance, it does not. {¶ 124} The right to present mitigating evidence in a capital case stem s from the conclusion of the Unite d 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 defend ant opts to submit psychiatric evidence, the principle of individualized capital s entencing is not undermined by requiring the defendant to submit to an examinati on by a state expert
so that the state has a fair cha nce to rebut the defense eviden ce. {¶ 125} Nor does such an examination unde rmine the policies of the Fift h Amendment privilege against c ompelled self-incrimination. To t he contrary,

[t]he admission of this rebuttal testimony harmonizes with the principle that when a defendant chooses to testify in a crimina l case,
the Fifth Amendment does not allow him to refuse to answer rela ted questions on cross-examination. A defendant “has no right to s et forth to the jury all the facts which tend in his favor without laying himself open to a cross-examination upon those facts.” * * * W hen a defendant presents evidence through a psychological expert wh o has examined him, the government likewise is permitted to use t he only effective means of challenging that evidence: testimony fr om 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 c ounsel requires that defense counsel be given prior notice of the nature and scope of a stat e-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, Madis on contends that Dr. Pitt’s e xamination exceeded the limits set by the trial cour t and that, as a result, his co unsel were not notified of the full scope of the examination. {¶ 128} The trial court’s order approvi ng the examination provided: “St ate may not inquire into the facts an d circumstances of the case. Examination only relates to the brain damage of defendant.” The interview was r ecorded and the portions that were played for the jury covered several topics: Madison’s childhood and adolescence, his current in carceration, his drug and alcoho l use during the period leading up to his arrest, whether he was sexually abused as a child, and his
self-evaluation of charact er defects and weakness. {¶ 129} Though Dr. Pitt’s testimony did not tie all of the se areas of i nquiry directly to Madison’s claim of brain damage, there is nothing i n the record that establishes that Dr. Pitt exceeded the scope of the court’s ord er. 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. P itt 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, a nd we overrule his 13th proposition of law

.S UPREME C OURT OF O HIO

36 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 dur ing 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 p sychiatric interview. 451 U.S. at 469, 101 S.Ct. 1866, 68 L.Ed.2d 359. But the court specifically disavowed any implication of a rig ht to have counsel present du ring 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 duri ng a compelled psychiatric interview. See, e.g. , United States v. Byers, 740 F.2d 1104, 1115-1122 (D.C.Cir.1984) (plur ality 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 an d overrule Madison’s 12th proposition of law.
IV. EVIDENTIARY ISSUES A. The Interrogation Videos {¶ 131} During the guilt phase, the state introduced video recordings o f portions of Madison’s interrogation by the police. In his sixt h proposition of law,
Madison contends that these vide os contained officers’ statemen ts that should have been excluded as inadmissible, including accusations of lying a nd prejudicial
reflections on Madison’s charact er. 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 muc h
about the murders due to his ex cessive drinking and drug use. During one interview, Detective Nate Sowa expressed doubt about this, poin ting 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 d rinking problems are “a wreck” after a day or two without alcohol. Madison admi tted, “I can’t really explain that.” Madison objected to the jury hearing Sowa’s and Diaz’s statementsJanuary Term, 2020

37 because they were unqualified to give opinions on the subject o f alcohol dependence. The trial court overruled the objection but instru cted the jury that the detectives “are not experts in alcohol dependence.” Madison la ter 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 wel l. {¶ 133} We find no error. It is common knowledge that heavy drinkers often suffer withdrawal symptoms when they are forced to go wit hout alcohol. Further, the statements made by Sowa and Diaz provided useful c ontext to Madison’s admission that he could not explain why he was not go ing 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 a ddition, 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 unf airly prejudicial. These inclu de additional skeptical comments about his claims of heavy drug and alcohol u se, attempts to find out how many victims he k illed, entreaties to cooperate an d show remorse, and a detective’s suggestion that Ma dison got sexually aroused by k illing women. {¶ 135} The record does not show any obj ection to these statements at t rial. Thus, Madison can prevail only by showing plain error. To prev ail, he must show that an error occurred, that the error was plain, and that but for the error the outcome of the trial clearly woul d 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 interrogati on 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 witnes s stand at trial.”
State v. Kidder , 32 Ohio St.3d 279, 285, 513 N.E.2d 311 (1987).S UPREME C OURT OF O HIO

38 {¶ 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 tr ial court admitted unfairly prejudicial evidence during the guilt p hase in violation of Evid.R. 403(A), which requires a trial court to exclude relevan t evidence “if its probative value is substantially outweighed by the danger of un fair prejudice, of confusion of the issues, or of misleading the jury.” {¶ 139} In his videotaped interview, officers asked Madison multiple ti mes if they would find more victims than the three they had already found, and Madison replied that he did not know. M adison argues that these statem ents 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 askin g the trial court, just before the video was played, to e xclude 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 unso lved homicides and thus were outside the scope of Madison’s request. Thus, Ma dison’s failure to object at trial forfeits this ar gument, absent plain error. We find no plain error. {¶ 141} Quiana Baker, a friend of Madis on’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 ad mission of this statement was no t error. Madison’s statement that he wanted to “Anthony Sowell” a woman was releva nt to show intent and prior calculation and design. And when considered in the c ontext of the other

1. Anthony Sowell is a Cleveland serial killer who was convict ed 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 outwei ghed 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 “talk ed about hitting women and tying them up” in a sexual context. Defense objectio ns 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 en joyed tying up women was directly relevant to the murders. It also supported the sexualmotivation specifications, R.C. 2941.147(A), which required pro of that the murders were committed with “a purpose to gratify the sexual needs or d esires of the offender,” R.C. 2971.01(J). {¶ 143} Thomas also testified that s ometimes during phone conversations , Madison would tell her he was “wa tching the bitches.” She furt her recounted that
Madison once told her he wanted to kill the mother of his child ren because “she
wouldn’t let him see his kids.” Madison concedes that he did n ot 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 t o either phase. As to the guilt phase, the evidence of Madison’s guilt was overwhelming. As to the penalty phase, once Madison had been c onvicted of actually killing three women, the information that he had talked about killing another woman or that he sometimes used improper language to re fer to women is not sufficiently prejudicial to undermine confidence in the jur y’s sentencing
verdict. {¶ 145} The video footage of the interrogations played for the jury inc luded
a brief conversation between Madison and a female detective who brought him coffee and shows Madison referring to the detective as “sweethe art” and telling her to “be good.” Madison did not object at trial to this portion of the video. HisS UPREME C OURT OF O HIO

40 argument that it was inherently prejudicial is unconvincing, an d there was no plain

error. {¶ 146} Finally, the jury saw footage of Madison, alone in the intervie w room, talking to himself, displaying anger, and using profanity . Madison did not object at trial. He now accuses the state of using this incide nt to “demonize him.” We find no plain error. The jury heard extensive evidence abou t the three murders;
if Madison was demonized in the e yes of the jury, it was not fr om a snippet of video of him talking to himself. {¶ 147} Madison’s seventh propos ition of law is overruled.
V. SENTENCING ISSUES
A. Exclusion of Mi tigating Evidence {¶ 148} In his tenth proposition of law, Madison asserts that the trial court excluded relevant mitigating evidence that he had a constitutio nal 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 culpab ility.” According to the defense’s proffer at tri al, Dr. Cunningham would have te stified as follows:

[T]he concept of moral culpa bility acknowledges [that] * * * we do not all arrive at our choices out of equivalent raw material. It follows that the degree of “bla meworthiness” 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 rel evant in the weighing of moralJanuary 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 allowe d to testify about United States Supreme Cour t decisions discussing the role of moral culpability in capital sentencing. {¶ 150} Dr. Cunningham is a forensic psychologist. Morality is not wit hin his field of expertise. Neither is law. His opinion of what i s “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 ha ve 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 ex cluding this testimony. 2. Connection between Developmental Factors and Choice {¶ 151} Madison maintains that the t rial court improperly excluded testimony about the connection between adverse developmental fa ctors and a person’s capacity to make choices. He cites three instances wh en the trial court sustained objections to Dr. Cunni ngham’s use of the term “choic e.” But Dr. Cunningham did explain to the jury multiple times that the adve rse developmental factors in Madison’s history limited his range of choices. And Dr. Cunningham
testified at the close of his di rect examination about a person who has such a background: “You get a choice, you just don’t get the same choi ce. You get a choice that rests on all the damage of that history.” We find no error.S UPREME C OURT OF O HIO

42 3. Evidence about Certain Adve rse Developmental Factors {¶ 152} Madison asserts that the trial court improperly excluded eviden ce of certain adverse developmenta l factors in Madison’s backgroun d. {¶ 153} First, he contends that the tria l court erred by excluding Powe rPoint slides about heritable traits in Madison’s family tree such as alcoholism and personality disorders. The slides were excluded because Madiso n’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 th eir 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 e ffects of head injuries on Madiso n. The record, however, demonstrates that Dr. Cunningham testified that a head injury is an adverse neurodevelopmental factor and that during early childho od and adolescence, Madison susta ined a number of them. {¶ 156} Third, Madison contends that the trial court erred when it did not let Dr. Cunningham discuss an i ncident when Madison was choked at age 10 or 11; the trial court excluded this testimony because the incident di d not involve any of Madison’s relatives. The signi ficance of the choking incident is that hypoxia, or “oxygen deprivation to the brai n,” and anoxia, or “oxygen cutof f,” 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 bra in development. Dr. Cunningham testified about Madis on’s allegations that his mothe r had more than once choked him until he passed out. Therefore, any error in t he trial court’s ruling
is harmless.January Term, 2020

43 {¶ 158} Fourth, Madison alleges that the trial court erred because it d id not let Dr. Cunningham testify about c ertain instances of “sexually perverse behavior in [Madison’s] home” (such as his brother being molested) unles s 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 o f 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 numero us PowerPoint slides as repetitive. But Madison does not dispute that the slides were repetitive, and the trial court was not required to admit cumul ative evidence. Sheppard v. Bagley , 657 F.3d 338, 346 (6th Cir.2011). {¶ 160} Madison’s tenth propositi on of law is overruled. B. Unfairly Prejudicial Evide nce 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. Pit t testified that he has an antisocial-personality diso rder. Madison does not, however, explain why it is improper for a psychiatrist to m ake such a diagnosis of a defen dant. {¶ 163} Madison also maintains that Dr. Pitt improperly described him a s “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 i nto evidence. The word “depraved” was placed before the jury during defense couns el’s direct
examination of Madison’s own ex pert witness, Dr. Cunningham. D r. Cunningham
testified on direct that he had r ead and evaluated Dr. Pitt’s r eport, of which he was quite critical. Defense counsel asked whether the term “deprav ed individual” isS UPREME C OURT OF O HIO

44 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 aft er 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 t he state’s int roduction of testi mony that Madison asked a pen pal to send him pictures of women. Dr . Cunningham, however, had already testified regarding Madison’s “disturbed s exuality.”
Madison further contends that the state improperly introduced t estimony that Madison has a “victimization mentality,” does not accept respon sibility for his acts,
and is deceitful. But all these matters were relevant to Madis on’s antisocialpersonality disorder. The same is true of evidence regarding M adison’s lack of “regret” or “remorse” for the murders. (Expert testimony in th e penalty phase established that the criteria for antisocial-personality disord er include deceitfulness, aggressiveness, irresponsibility , and indifference to harming o thers.) {¶ 165} Madison contends that the state improperly introduced evidence that he is “fully responsible” for his conduct and has no menta l disease or defect. But the defense had previously put on evidence that Madison is not fully responsible, because his background diminished his ability to m ake choices. Indeed, this was the major theme of his penalty-phase defense i n general and Dr. Cunningham’s testimony in partic ular. The state was entitled t o cross-examine on that point. {¶ 166} Madison contends that Dr. Pitt exceeded the scope of the trial
court’s order in his examinati on of Madison. We have already r ejected 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 Americ an psychologists and psychiatrists.January Term, 2020

45 {¶ 167} Madison also asserts that the sta te presented excessive evidenc e of
the circumstances of the crimes and improperly referred to “irr elevant details” of his prior drug and attempted-rape convictions but offers no spe cifics to support
these claims. {¶ 168} Finally, Madison complains that the state described him as a se rial killer. Madison was charged with and found guilty of killing t hree women on three different dates as part of a si ngle course of conduct. The ter m “serial killer” aptly
describes Madison’s conduct. C ounsel for both sides are entitl ed 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 defendan t’s wrongdoing,”
State v. Keene , 81 Ohio St.3d 646, 666, 693 N.E.2d 246 (1998). We see no rea son 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 S entencing Opinion {¶ 170} In its sentencing analysis, the trial court assigned no mitigat ing weight to Madison’s relationshi p with his children, “minimal we ight” to his adaptability to prison, and “some very slight weight” to his hi story of substance abuse. The court also considered his history as a victim of ab use and paternal
abandonment as well as the “toxi c culture” and “intergeneration al dysfunction” of his family; the court gave his background and childhood “greate r weight” than other factors but “not * * * great weight.” {¶ 171} In his 17th proposition of law, Ma dison contends that the trial court’s sentencing opinion violat ed the Eighth Amendment, becau se 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 11 4, 102 S.Ct. 869, 71S UPREME C OURT OF O HIO

46 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 t rial court improperly “discounted the mitigation” by “view[ing] the evidence as not establishing a ca usal connection to Madison’s conduct in committing the murders.” But nothing in t he trial court’s opinion discusses a lack of causa l connection between the claim ed mitigating factors and the murders. In any event, Madison’s claim does no t state an Eighth Amendment violation. “Whether mitigating factors help to expla in the murder is obviously relevant to the weight of those factors and may be co nsidered 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 pr oposition of law that the trial c ourt erred by denying his requests that the jury be instructed to co nsider “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 acc uses the prosecutor of “employ[ing] a strategy to assert multiple groundless object ions” 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 ofJanuary Term, 2020

47 actual “groundless objections” but incorporates by reference ma ny 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 obj ections as a strategy, and the prosecutor’s conduct in this regard did not r ender Madison’s trial unfair, s ee Smith v. Phillips , 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1992) (the touchstone of analysis in c onsidering allegations of prose cutorial misconduct “is the fairness of the trial, not the culpability of the prose cutor”). Madison’s fifth proposition of law is overruled.
B. “Serial Kill er” References {¶ 178} Madison’s eighth proposition of law posits that it was miscondu ct for the prosecution to refer to him as a “serial killer.” As w e have discussed above, this appellation was accurate, r elevant, 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 misconduc t in both the guilt and penalt y phases.
1. Guilt Phase {¶ 180} As to the guilt phase, Madison first claims the prosecution improperly introduced the testimon y of the family members of th e 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, an d her stepfather,
Derrick Minor. {¶ 181} Britney testified without objecti on that her sister enjoyed pra ise dancing. When the state asked her to describe her relationship with her sister,S UPREME C OURT OF O HIO

48 however, the trial court sustai ned a defense objection, and the question went unanswered. Thus, no error occurred. {¶ 182} Minor testified without objection about Terry’s schooling, stra ightA 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 te stified 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 rout e 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 propositi on of law, Madison asserts that the prosecutor committed misconduct b y not redacting the confession videos to eliminate the “improper statements” of detectives, by introducing “inflammatory” evidence, and by calling him a “seri al killer.” These claims reiterate claims made in Madison’s sixth, seventh, and e ighth 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 “pr ofessional” killer
after he committed his second murd er. But this was fair commen t 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.” Howe ver, as discussed
in relation to Madison’s sevent h proposition of law, this state ment was properly introduced into evidence and, the refore, could be used in argum ent.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 eviden ce was overwhelming, so any error was harmless. More over, there is no carryover pre judice in the penalty phase. Madison’s lack of remorse was discussed by expert witne sses in that phase, as it was relevant to the diagnos is of antisocial-personality d isorder. 2. Penalty Phase {¶ 187} As to the penalty phase, Madison first argues that the prosecut or unfairly emphasized the grotesque nature of the murders and the autopsy photographs. In cross-examining Dr. Davis, the prosecutor desc ribed the crimes as “grotesque” and asked Dr. Davis if he had looked at the autopsy photos. Both times
the trial court sustained defens e objections. The prosecutor d id not display or describe the photos during the penalty phase. Any error stemmi ng from these brief
incidents was harmless. {¶ 188} Madison also complains that the state used the cross-examinatio n of Dr. Cunningham “to make speeches and arguments” to the jury. Although he provides record citations, he offe rs no specific examples or an alysis. Crossexamination is entitled to wide latitude, and its scope is with in 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 misconduc t 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 i ts discretion or that the alleged misconduc t 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 “strategi c advantage,” and was being “used as a tool to aid in [ Madison’s] defense.” The tria l court sustainedS UPREME C OURT OF O HIO

50 objections to the “client” and “t ool” questions, and instructed the jury to disregard the “client” question. (Madison did not ask for a curative ins truction 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 prob e possible bias. Hence, the trial court did not abuse its discretion by overruli ng 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 hi s objection, no error occurred. {¶ 192} Madison also complains that the prosecutor in closing argument attacked Dr. Cunningham’s testimony on the heritability of pers onality 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 t rial and does not attempt to show that plain error occurred. Hence, this claim i s forfeited. {¶ 193} Madison accuses the prosecutor of making “groundless objections ” to his mitigating evidence. We have already rejected this clai m in overruling Madison’s tenth proposition of law. {¶ 194} Madison contends that the pros ecutor improperly commented on
the defense’s failure to call certain witnesses in the sentenci ng phase, including Madison’s mother. A defense obj ection was overruled when the p rosecutor asked
Dr. Davis if he knew that Madison’s mother lived in the area an d 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 q uestions. We find nothing improper about the prosecutor’s questions.January Term, 2020

51 {¶ 195} Madison charges that the prosecu tor disparaged him in front of the jury. On cross-examination, the prosecutor, referring to Madis on, asked Dr. Cunningham: “Do you see the guy here on the iPad looking at pic tures of ladies * * *?” The defense objected, a nd the trial court cautioned th e prosecutor not to refer to what Madison was doing and told the jury to disregard the question. The
defense later asked for a mistr ial based on the prosecutor’s di scussing “nonevidentiary items.” The trial c ourt denied the motion but inst ructed the jury that “the defendant has no burden of p roof, and the defendant is per mitted to look at the iPad during the course of this trial.” {¶ 196} The decision to grant or deny a mistrial lies in the trial cour t’s discretion, and the court should grant one only when justice re quires 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 cour t’s instructions were insuffici ent to deal with any unfair prejudice. {¶ 197} Madison complains that in discu ssing his prior attempted-rape conviction, the prosecutor impr operly called him a “con artist. ” He also contends the prosecutor improperly discu ssed the details of that convict ion, Madison’s violations of sex-offender repor ting obligations stemming from it, and a prior drug offense. However, Madison offers no argument or analysis to sh ow why any of this was improper. {¶ 198} In his penalty-phase closing argument, the prosecutor stated: “ It would be * * * dishonest morally t o violate your oaths.” A def ense objection was
overruled. It is not misconduct to allude to the jurors’ oath. Just before the statement here, the prosecutor ad monished the jurors to put asi de “bias, * * * sympathy [and] prejudice” and “act in a logical, reasonable fas hion.” It is evident that “[t]he prosecutor was not asking the jurors to return a fi nding of guilty because
of their oath.” State v. Pickens , 141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3dS UPREME C OURT OF O HIO

52 1023, ¶ 116, overruled in part on other grounds, State v. Bates , ___ Ohio St.3d ___, 2020-Ohio-634, ___ N.E.3d ___, ¶ 35. Instead, his statement li nked the jurors’ oath to their responsibility to act logically, reasonably, and without bias. {¶ 199} The prosecutor also said that t here 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 “i n 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 w ill 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 nothi ng to show how any of it was im proper. Nor does he
show how these state ments undermined the r eliability of the pen alty-phase verdict. Thus, he fails to show plain error. {¶ 200} Madison contends that the pros ecutor, in examining Dr. Pitt, “ignored” the trial court’s admonition that he could explore th e 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 cour t 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 pr opositions, claims we have alre ady rejected. Madison’s 15th proposition of law is overruled.
VII. INEFFECTIVE ASSISTANCE OF COUNSEL {¶ 202} In his 16th proposition of law, Ma dison contends that his trial
counsel rendered ineffective a ssistance. To establish ineffect ive assistance, Madison must show (1) deficient performance by counsel, i.e., p erformance falling below an objective standard of r easonable representation, and ( 2) prejudice, i.e., a reasonable probability that, but for counsel’s errors, the proc eeding’s result would
have been different. Strickland v. Washington , 466 U.S. 668, 687-688, 694, 104January 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 t hree of the syllabus.
A. Guilt Phase {¶ 203} Madison asserts that to the ex tent counsel failed to object to improper statements in the interrogation videos, they rendered ineffective assistance. Similarly, he contends they were ineffective to th e extent they failed to object to prosecutorial misconduct. As he gives no specifics a nd 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 a bout “watching the bitches” and wanting to kill the mother of his children, (3) his flirting with a female detectiv e, 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 discu ssing that proposition, the final three of these claims do not satisfy the prejudice prong of the plain-error test. No r 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 objec t fell below an objective standard of reasonable representation. Thus, Madison has failed to
demonstrate ineffective assist ance as to any of these issues. B. Penalty Phase {¶ 206} Madison contends that to the ext ent counsel in the penalty phas e failed to object to unfairly prej udicial evidence or to prosecu torial 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 o n the defense’s failure to call Madi son’s mother in the penalty p hase, defense counsel erred by failing to draft a curative instruction after the tria l court had offered counselS UPREME C OURT OF O HIO

54 an opportunity to do so. But, as stated above in our discussio n of Madison’s 15th proposition of law, it is unclear how any unfair prejudice resu lted from the crossexamination. {¶ 208} Finally, Madison argues that defense counsel should have requested a penalty-phase instr uction to inform the jury about United States Supreme Court decisions establishing the relevance of “moral cu lpability” to capital sentencing. He cites no authority, however, for the pr oposition that a jury should be instructed about speci fic Supreme C ourt decisions. {¶ 209} Madison fails to establish that counsel rendered ineffective assistance in either phase of trial. His 16th proposition of l aw is overruled.
VIII. CUMULATIVE ERROR {¶ 210} In his 18th proposition, Madison cl aims that the cumulative eff ect 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 depriv es 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 Madiso n “offers no further analysis, this pro position 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, Ma dison repeats several oft-rej ected arguments against the constitutionality of the death penalty an d the Ohio statutes governing its imposition and also repeats rejected arguments th at 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 OhioJanuary Term, 2020

55 St.3d at 168-174, 473 N.E.2d 264. We summarily overrule this p roposition 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 sentencin g that it intended to impose c osts 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 w aive, suspend, or modify the pa yment of costs of prosecution * * * at the time of sentencing or at any time ther eafter.” 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 re mand, we overrule his 20th proposition of law.
XI. INDEPENDENT SENTENCE REVIEW {¶ 213} Under R.C. 2929.05, we must inde pendently review Madison’s
death sentence. We must deter mine whether the evidence support s the jury’s finding of aggravating circumstances, whether the aggravating c ircumstances outweigh the mitigating factors, a nd 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 unde r R.C. 2929.04(A)(5) and two felo ny-murder circumstances under R.C. 2929.04(A)(7) (offense committed durin g rape and kidnapping). Two aggravating circumstances each were found as to the murders of Deskins and Sheeley: cour se of conduct and kidnapping. {¶ 215} The evidence overwhelmingly supports the course-of-conduct specification as to each of the aggravated murders. Madison co nfessed to committing one of the murders. The similarities in the murders indicate that a single person killed all three victims. Madison’s admissions a nd the strongS UPREME C OURT OF O HIO

56 evidence connecting the victims to him and to his residence pro ve 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 condu ct with another when the offender purposely compe ls the other person to submit by force or threat of force.” The medical examiner testified that both Terry’s va gina and anus were penetrated and that the resulting severe lacerations were proba bly 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 ob ject into the vaginal or anal opening of another” c onstitutes “sexual conduct.” And force or threat of
force can be inferred from the circumstances. {¶ 217} The evidence also supports the k idnapping specification as to Terry. The evidence shows that Madison lied to win her trust a nd 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 cal led victim pretending to be a prospective employer). As this was the thir d in a series of murders, the jury could reasonably draw the inference that Madi son intended to kill Terry at the time he inv ited her to his apartment. {¶ 218} As to Sheeley and Deskins, the kidnapping case is far weaker. In Sheeley’s case, Madison told poli ce he picked her up at a bar a nd brought her back to his apartment. At trial, the state argued t hat he had alrea dy 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 a ny evidence that supports this theory.January Term, 2020

57 {¶ 219} The state also argued at trial that Madison kidnapped Sheeley b y restraint, see R.C. 2905.01(A), based on his admission to police that he atte mpted
to “restrain” her. But that statement was in the context of hi s claim that she started a fight with him and he was trying to get her out of his apartm ent. It does not amount to an admission of kidnapping. {¶ 220} As for Deskins, there is evide nce 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 t o infer that Deskins, like the other victims, was murdered in Madison’s apartment. B ut 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 a t trial that the bindings on Deskins’s body showed kidnapping by restraint. But the medi cal examiner was
unable to state that the bindi ngs 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 h ad 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 bet ween Deskins’s lips and not secured in any way. {¶ 222} The evidence in the record is insufficient to support the kidna pping specifications as to either Sheeley or Deskins. But this does not mean that we
should vacate Madison’s death se ntences for those murders. In both cases, the course-of-conduct specification re mains valid. When a defendan t’s death sentence is based in part on an invalid sp ecification, we can cure the e rror by excluding that specification from our independent reweighing of the death sent ence, so long as at least one valid specification remains. See, e.g., State v. Wesson , 137 Ohio St.3dS UPREME C OURT OF O HIO

58 309, 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 y ears 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 w as the sole offender.
Madison does not lack a substantial criminal record: he was con victed of attempted rape in 2002 and he has ot her convictions. There was no eviden ce 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 n o evidence of any
mental disease or defect. And the nature and circumstances of the aggravated murders offer no mitig ation whatsoever. {¶ 224} Madison’s chief witnesses in the penalty phase were Drs. Davis and Cunningham. Their testimony dealt mostly with Madison’s histor y, especially his childhood, and its effect on his ability to make choices. Drs. Davis and Cunningham concluded that Madis on’s life contained numerous “ri sk factors” associated with negative life outcomes, including instability, physical abuse, neglect and emotional abus e, and substance abuse. {¶ 225} Instability : Madison was born in Pennsylvania in 1977. As an infant, he moved to Cleveland with his mother. Madison’s pater nity 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 “tran sient parental figures” in the household. Few i f any were good role models. {¶ 226} Madison’s mother also moved frequently. According to Dr. Cunningham, frequent moves can d isrupt a child’s socialization and undermine his sense of security. At various times, Madison was sent to live with relatives andJanuary Term, 2020

59 with others. In 1993, Madison and his half-brother, J.R. Mille r, 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 a llegedly beat him w ith a cord, bruised h is eye with her fist, stuffed food down his throat, and inflicted “exercise punishmen ts” such as forcing him to do pushups for a long time without stopping. Her live-i n boyfriends also physically abused him, and she did nothing about it. On one oc casion, 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. C unningham, seeing
another household member abused i s as damaging to a child as be ing abused. {¶ 228} Madison told Dr. Pitt that he had never been sexually abused. (However, Dr. Cunningham noted tha t Madison’s aunt reported tha t 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 sit uation Dr. Cunningham considered “predatory” and “exploitive.” {¶ 229} Neglect and Emotional Abuse : Madison’s mother did not ensure that he had enough to eat. She d id 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 ba thing him in water that wa s 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 adu lthood. In particular, Dr. Cunningham testified that negl ect 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 p athways that allow persons to form healthy em otional attachments.S UPREME C OURT OF O HIO

60 {¶ 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 sugg ests that such dysfunctional traits may have been “genetic[ally] transmit[ted] ” to Madison. {¶ 232} Dr. Cunningham concluded th at Madison is fundamentally impaired in his ability to understand the emotional experience of others. He
conceded that Madison “had choice s,” i.e., that he was capable of making choices. But in his opinion, Madison lacked the same foundation for maki ng 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 ach ieving constructive” life. On the other hand, he said not everyone who is subjected to similar adverse influences goes on to co mmit multiple murders. {¶ 233} The state called Dr. Pitt in re buttal. Dr. Pitt diagnosed Madi son as having antisocial-personality di sorder, 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 vic tim. Like Dr. Davis,
Dr. Pitt found no evidence that Mad ison has a mental disease or defect. {¶ 234} Dr. Pitt emphatically disagreed with Dr. Cunningham’s conclusio n that Madison’s history “limit[ed] the range of choices or * * * options that were available to him.” He found Madison “entirely capable of makin g 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 disput e Dr. Davis’s conclusion that M adison’s childhood abuse and emotional trauma may h ave resulted in a “neurobiologi cally determined pathway placing him at much greater risk for psychological[,] b ehavior[al,] and substance abuse problems.” {¶ 236} While conceding some correlation between having a bad childhood and becoming a violent offender, Dr. Pitt noted that correlatio n does not proveJanuary Term, 2020

61 causation and testified that it is impossible to predict who wi ll become an alcoholic, a sex offender, or a serial killer. Indeed, he testified that “there are people all across this country who have had [Madi son’s] background and then some, and have gone on to * * * live very productive, happy, successful lives.” An d 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. P itt that Madison has a “victim mentality,” but said that is evidence of his being “damaged.” He also acknowledged that Dr. Pitt’s diag nosis of antisocial-personalit y disorder was “probably” accurate. {¶ 238} Substance Abuse : Mental-health experts on both sides diagnosed substance-abuse problems. Dr. C unningham testified that the mo st powerful risk factor for alcohol and drug abuse is heredity and that Madison’ s early substance abuse indicates a “genetic predi sposition” 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 Da rby 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 a nd retired prison administrator, who testified as a defense expert witness on correc tions and prison environments. Aiken reviewed Madison’s prison and jail records, his social history and educa tion, and a “brief
overview” of his crimes. He con cluded that the Department of R ehabilitation and Correction could “adequately mana ge” Madison if he was sentence d to life in prison. Aiken testified that Madison’s age and past behavior w hile incarceratedS UPREME C OURT OF O HIO

62 indicated an “extremely low” probability that Madison would pos e a danger to prison employees or t o other inmates. {¶ 240} Relationship with Children : In the guilt phase, Madison’s neighbor Asia Stovall, his friend Quiana B aker, and his girlfriend Darby testified that Madison was a good father to his two children. In Stovall’s vi ew, Madison’s children loved being with him. Baker offered that the children respected and obeyed Madison. And Darby said t hat Madison loved his childrenand they loved
him.
C. Sentence Evaluation {¶ 241} Madison’s most significant mitigating factor is his abused, uns table 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 mu rders. “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 himse lf 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 sl ight weight. His possible voluntary intoxication during the offense s is entitled to little weight. See id. at 51. Aiken’s assessment that Madison will not likely be a d anger to guards or fellow inmates if i ncarcerated for life deserves s ome slight weight. {¶ 243} With respect to Terry’s murder, we conclude that the three aggravating circumstances—kidnappi ng, rape, and Madison’s cours e of conductJanuary Term, 2020

63 involving three murders in ten months—outweigh the mitigating f actors beyond a
reasonable doubt. As to the murde rs of Deskins and Sheeley, we conclude in each
case that the course-of-conduct a ggravating circumstance alone outweighs the mitigating factors beyond a reasonable doubt. D. Proportionality Review {¶ 244} We further conclude that the im position of death sentences for these crimes is proportiona te 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 indi ctment, and we accordingly vacate the prison sentences imposed for each of tho se offenses. We also reverse the trial court’s judgment on the felony-murder de ath specifications to Counts 2 and 5, which were predicated on kidnapping. Those spe cifications 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 cour t regarding the convictions and sen tences. We affirm all three s entences of death. Judgment affirmed in part and reversed in part.
O’C ONNOR , C.J., and K ENNEDY , F RENCH , F ISCHER , D ONNELLY , and
S TEWART , JJ., concur.

_________________ Michael C. O’Malley, Cuyahoga County Prosecuting Attorney, and Christopher D. Schroeder, Katherine E. Mullin, and Anna M. Fara glia, Assistant Prosecuting Attorneys, for appellee.S UPREME C OURT OF O HIO

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

_________________