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

State v. Jackson, Slip Opinion No. 2014-Ohio-3707.] 

NOTICE

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

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

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

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

other formal errors in the opinion, in order that corrections may be 

made before the opinion is published. 

SLIP OPINION NO. 2014-OHIO-3707

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

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

it may be cited as State v. Jackson, Slip Opinion No. 2014-Ohio-3707.] 

Criminal law—Judicial bias—Trial court’s conducting of a hearing when defense 

counsel did not raise claim of intellectual disability—Waiver of jury 

trial—Jurisdiction and venue when crimes are committed in several 

counties—Death penalty upheld.

(No. 2010-0944—Submitted February 4, 2014—Decided September 2, 2014.) 

APPEAL from the Court of Common Pleas of Cuyahoga County, 

No. CR-09-532145-A 

____________________ 

O’DONNELL, J. 

{¶ 1} Jeremiah Jackson appeals as of right from his aggravated murder 

convictions for killing Tracy Pickryl and from his other felony convictions. A 

three-judge panel imposed the sentence of death for Pickryl’s murder. 

{¶ 2} We affirm Jackson’s convictions and sentence of death. 
SUPREME COURT OF OHIO

2 

I. Trial Evidence 

{¶ 3} Evidence introduced at trial showed that Jackson shot Pickryl while 

robbing the Soap Opera Laundry in Cleveland. Her murder ended a crime spree 

that began with Jackson’s attempted murder of Stanley Bentley and included a 

series of six robberies in Cleveland, Sandusky, and Lorain between June 2 and 

June 18, 2009.

A. Attempted murder of Stanley Bentley 

{¶ 4} Jackson and Bentley became friends while working together at the 

same company in 2006 and 2007. On the evening of June 1, 2009, Jackson 

visited Bentley outside Bentley’s Cleveland residence. Jackson carried a bag with 

a gun inside, and he showed the gun to Bentley. The bag was left inside Bentley’s 

home. Jackson departed later that evening, but before he left, Bentley told him 

not to forget his bag. 

{¶ 5} Between 4:30 and 5:00 a.m. on June 2, Jackson and Maurice 

Harrison went to Bentley’s home, and Jackson told Bentley that he had come to 

pick up his bag. Bentley told Jackson, “I thought you got the bag when you left. 

* * * I don’t have the bag.” According to Bentley, he got scared because Jackson 

became angry. Bentley then called his mother, Alfreda Rice, and told her what 

was going on. Jackson and Rice knew each other, and Jackson took the phone 

and talked to her. Jackson told Rice that he needed $500. Rice responded that 

she did not have any money and hung up. 

{¶ 6} Bentley and Jackson continued to argue about the bag. Bentley saw 

Jackson put on a pair of work gloves and reach into his pocket. Bentley told 

Jackson that he had to go to work. Jackson replied, “You’re not going to make 

it.” Bentley then felt a “jolt” to the left side of his body. He jumped out a 

window and ran to a neighbor’s house. The police were notified, and Bentley was 

taken to the hospital. He had been shot in the abdomen and remained in the 

hospital for more than two weeks. 
January Term, 2014 

3 

B. Robberies in Cleveland, Sandusky, and Lorain 

1. Super Wash Laundry robbery

{¶ 7} Around 11:30 p.m. on June 15, 2009, Jackson and Harrison walked 

into the Super Wash Laundry in Cleveland. They entered the office where 

Charles Caldwell, the laundry attendant, was seated and told him to put his head 

down and his hands up. Caldwell testified that one man carried a gun and the 

other man carried a bag. Jackson and Harrison then took approximately $200 

from the cash drawer and some money from Caldwell’s pockets and fled the 

scene. Surveillance cameras videotaped the robbery, and that tape was shown at 

trial. 

{¶ 8} At trial, Katrina Dickerson testified, as part of a plea bargain, that 

she had driven the getaway car. Dickerson stated that on the evening of June 15, 

2009, she had driven Jackson and Harrison to the Super Wash Laundry and that 

they had gotten out and robbed it. She also testified about her involvement as the 

driver during four other robberies and the robbery and murder at the Soap Opera 

Laundry. 

2. Hobo Joe’s Bar robbery 

{¶ 9} Around 11:50 p.m. on June 15, 2009, Jackson, Harrison, James 

Dixon, and Dickerson entered Hobo Joe’s Bar in Cleveland. One of the men hit 

Steven McKenty, a customer, in the head with a pistol and took his wallet, $117 

in cash, and his cell phone. Another robber put a pistol to the head of James 

Sedivy, the bartender, and threatened to shoot him if he did not cooperate. That 

robber rifled through Sedivy’s pockets and took money from the cash register. 

The robbers then left the bar. 

3. Brickhouse Bar robbery 

{¶ 10} Around 1:45 a.m. on June 17, 2009, Jackson and Dixon entered the 

Brickhouse Bar in Cleveland. Jackson and Dixon sat down at the bar and ordered 

a Corona and a tequila. 
SUPREME COURT OF OHIO

4 

{¶ 11} About 15 minutes later, a third man entered the bar and directed 

Dwayne Buchannan and Monique Irby, two customers, to get on the floor and 

empty their pockets. Jackson then jumped over the bar, put a gun to the face of 

Jennifer Testa, the bartender, and took about $200 from the cash register. The 

three robbers then fled. 

{¶ 12} At trial, Christopher Smith, a forensic scientist with the Ohio 

Bureau of Criminal Investigation, testified that he had examined the DNA on 

swabs that had been used to collect matter from the rim of a glass and a Corona 

beer bottle left on the bar. He testified that the DNA found on the glass was a 

mixture consistent with contributions from Dixon and Jackson. He also explained 

that Jackson could not be excluded as the source of the DNA found on the beer 

bottle. Smith determined that “the expected frequency of occurrence of the DNA 

profile from the swabs from the beer bottle * * * is 1 in 160,800,000,000,000,000 

unrelated individuals.” 

4. Howard Johnson’s Inn robbery 

{¶ 13} Around 5:00 a.m. on June 17, 2009, Jackson, Harrison, and Dixon 

entered the lobby of Howard Johnson’s Inn in Sandusky, Ohio, in Erie County. 

Jackson showed his gun to Katherine Schaffer, the desk clerk, and she gave them 

approximately $250. The robbers also stole a surveillance monitor from the 

office, and Jackson took Schaffer to a storage area and bound her with duct tape. 

The robbers then fled. At trial, Schaffer viewed surveillance-camera pictures 

taken during the robbery, and she identified Jackson as one of the perpetrators. 

5. Walgreens robbery 

{¶ 14} Around 5:45 a.m. on June 17, 2009, Jackson, Harrison, and Dixon 

entered a Walgreens drug store in Lorain. Kayla Gaughan, the cashier, was at the 

front register helping Robert Morrison, a customer, check out. Jackson 

approached Morrison, placed him in a headlock, and pointed a gun at his head. 

One of the other men then took money from the cash register. Jackson took 
January Term, 2014 

5 

Morrison’s cell phone, wallet, and about $20 and pushed him into a closet. 

Meanwhile, the third man went into the pharmacy area and robbed Mallory Fay, 

the pharmacist. The robbers then left the store. Again, surveillance video 

captured Jackson’s participation in the robbery. 

{¶ 15} Dickerson testified that after the Walgreens robbery on June 17, 

2009, they drove to Cleveland. She took Jackson, Harrison, and Dixon to 

different locations in the Cleveland area. 

{¶ 16} During the trial, Detective Michael Kitchen testified that the police 

were able to obtain cell-phone records that indicated where Jackson’s, 

Dickerson’s, and McKenty’s cell phones were between June 15 and 18, 2009. 

These records showed that between 4:40 a.m. and 5:05 a.m. on June 17, following 

the robbery of the Brickhouse Bar in Cleveland, Jackson and his accomplices 

drove to Sandusky, where the robbery of Howard Johnson’s occurred. Jackson’s 

movements were then traced to the Lorain area, where the robbery of Walgreens 

took place. Cell-phone records showed that around 6:30 a.m., Jackson and his 

accomplices returned to the Cleveland area. 

C. Aggravated murder of Tracy Pickryl 

and attempted murder of Christy Diaz 

{¶ 17} On the evening of June 17, 2009, Jackson contacted his friend 

Janica Jackson. At the trial, she testified that Jackson had asked her to borrow her 

car. He had offered her $100 and told her that he would return the car by 6:00 

a.m. the next morning. 

{¶ 18} Around 11:00 p.m. on June 17, Jackson and Dickerson got the car 

from Janica and Harrison joined them. Dickerson testified that she then drove to 

East 40th Street to pick up Dixon. Harrison exited the vehicle to find Dixon. 

Jackson and Dickerson then saw Harrison being arrested by members of the 

Special Weapons and Tactics (“SWAT”) team on his way back to the car, so 

Jackson and Dickerson drove away. 
SUPREME COURT OF OHIO

6 

{¶ 19} Jackson then told Dickerson to drive to a location near the Soap 

Opera Laundry. She testified that he exited the car and walked down the street. 

{¶ 20} In the early morning hours of June 18, 2009, Tracy Pickryl and 

Christy Diaz were working at the Soap Opera Laundry. Around 4:30 a.m., 

Jackson walked into the laundry and approached them. According to Diaz, 

Jackson asked if he could have a discount because he had only a few items to 

wash. Pickryl replied that they could not give discounts. Jackson then pulled a 

gun and pointed it towards Pickryl’s waist. He then demanded, “[C]ome on, give 

me the money.” Jackson also pulled at a necklace Pickryl was wearing, but he 

was unable to break the chain. 

{¶ 21} He directed Pickryl and Diaz toward the front counter. Jackson 

then pointed his gun at Pickryl’s face and demanded, “[G]ive me the money.” 

Diaz gave Jackson $6 from her pocket. But Pickryl told Jackson, “[W]e don’t 

have no money here.” Jackson repeated, “[G]ive me the money.” Pickryl replied, 

“[D]ude, we don’t have no money.” Jackson grabbed Pickryl’s necklace again 

and the chain broke when she pulled away. Jackson then grabbed Pickryl’s 

bracelet, and she pulled back. According to Diaz, Pickryl turned her head toward 

Jackson and looked at him, and she looked down. Jackson then shot her in the 

face. 

{¶ 22} Diaz testified that Jackson turned the gun on her and said, “[G]ive 

me the money.” Diaz reached behind the microwave and handed him a pouch 

with money inside. Jackson pulled her toward a nearby office and tried to open it, 

but the door was locked. He then pointed the gun at her face and fired a shot. 

Diaz collapsed and thought she had been hit, because her ears were ringing and 

her face went numb. Jackson then ran out of the laundry. 

{¶ 23} A surveillance video presented at trial showed Jackson coming into 

the laundry and taking Pickryl and Diaz at gunpoint to the front counter. Because 
January Term, 2014 

7 

of the placement of the cameras, the video did not show Jackson shooting Pickryl 

or firing at Diaz. 

{¶ 24} Dickerson testified that she had heard two gunshots after Jackson 

left the car and that shortly thereafter, Jackson ran back to the car and told 

Dickerson to open the trunk. He got into the trunk and told Dickerson to drive 

away. They later returned the car to Janica’s house. Dickerson then picked up 

her car and dropped Jackson off near East 128th Street. 

D. Investigation and arrest

{¶ 25} Pickryl was dead when emergency-medical-services personnel 

arrived. Diaz was clutching her head and told police officers that she had been 

shot, but an examination showed that she actually had not been shot. 

{¶ 26} Investigators then began collecting evidence. A bullet casing and a 

piece of jewelry were found on the floor near the counter, and a spent bullet and 

bullet jacket were retrieved from the wall. In addition, a small strand of jewelry 

was found in the parking lot outside the laundry. 

{¶ 27} At trial, Janica testified that she examined the inside of her car after 

Jackson returned it on the morning of June 18 and found a gold necklace in the 

cup holder between the seats. Around 8:30 a.m., Jackson called Janica and asked 

for a ride. He said he was in trouble and needed to hide in the trunk of her car. 

She declined but said she would talk to Jackson later. 

{¶ 28} Following that phone call, Janica saw a video of the Walgreens 

robbery on a news website and recognized Jackson as the robber holding a gun to 

a victim’s head. She also read about the shooting at the Soap Opera Laundry. 

She then called the police and turned over the necklace to them. 

{¶ 29} Around 1:00 p.m. on June 18, Janica and Jackson spoke on the 

phone, and she asked whether he shot the lady at the Soap Opera Laundry. He 

admitted shooting her and said he did it because she would not give him the 
SUPREME COURT OF OHIO

8 

money. Janica also testified that Jackson had previously told her that he was on 

the run because he had “shot a guy, and the guy was in the hospital.” 

{¶ 30} On the morning of June 19, 2009, Detective Raymond Diaz 

obtained an arrest warrant for Jackson, and the police commenced a search for 

him. Officers later received information that Jackson was at a house in Cleveland 

Heights. On the evening of June 20, 2009, members of the SWAT team 

surrounded the house, and Jackson surrendered. 

E. Jackson’s statements to police 

{¶ 31} Detective Andrew Ezzo testified that Jackson was advised of his 

Miranda rights after he was arrested and that Jackson waived those rights. 

Jackson then told Ezzo that his gun was in an upstairs closet of the home in which 

he had been found. After obtaining consent from the home’s resident, the police 

seized a Taurus Model .380-caliber handgun with a loaded magazine. 

{¶ 32} Jackson was placed in a police cruiser after being arrested. Officer 

Michael Ryan testified that while asking Jackson routine questions for booking 

purposes, Jackson said, “[T]ake me to the chair. My life is over. * * * I didn’t 

mean to kill the bitch. * * * I just wanted to pop a round off to scare her.” He 

also said that he would “never give up his boys” and that he had “made his boy a 

little bit of money, and his money was buried for his daughter.” 

{¶ 33} On the morning of June 22, 2009, Detective Diaz conducted a 

videotaped interview of Jackson. After waiving his Miranda rights, Jackson 

admitted shooting Pickryl. But Jackson said that he had been trying to scare her 

and had not intended to kill her. 

{¶ 34} During the interview, Jackson described the Soap Opera Laundry 

robbery. He said that he borrowed a car from a friend and drove past the laundry 

a couple of times to make sure it was open. He parked the car two or three blocks 

from the laundry and walked there. Jackson said he approached the two women 
January Term, 2014 

9 

inside it and said, “I’m going to stick ya’ll up. Give me the money. Just be cool. 

Just give me the money ya’ll. That[’s] all I want.” 

{¶ 35} He then explained how he shot Pickryl: 

 Yeah, she started playing with this little change, knowing 

that I wanted some real money. * * * And I’m like just give me 

the money. * * * Everything will be alright. * * * She wouldn’t 

give me the money. That’s when I tried to grab her necklace off 

her arm. She yanked back, and I’m like fuck it, man I’m gonna 

pop one, and let her know I’m not playin’. I popped one and she 

fell into it. That’s when I killed her. And then the other girl, she 

showed me where the money was, she gave me a pouch. I thought 

it was pretty much a lot of money in there, but it wasn’t shit. 

* * * 

Then like the other girl was crying. So I just shot one. I went 

around her head to make sure I didn’t hit her. Popped the gun, you 

know what I’m saying. Just so she know * * * just like chill the 

fuck out. And don’t run out of here. 

(Emphasis added.) Jackson said that he left the laundry and then returned the car 

to his friend’s house, leaving the necklace in the car. 

{¶ 36} As to the other offenses, Jackson admitted shooting Bentley and 

participating in the robberies in Sandusky and Lorain, but he claimed that 

Harrison had not been involved. Jackson also denied participating in the 

robberies of the Brickhouse Bar and Hobo Joe’s Bar. 

F. The autopsy and other forensic evidence 

{¶ 37} Dr. Elizabeth Balraj, a deputy coroner for Cuyahoga County, 

performed the autopsy on Pickryl and testified that Pickryl had a gunshot wound 
SUPREME COURT OF OHIO

10 

above her right eye. Dr. Balraj stated that an internal examination showed that the 

bullet entered the right side of the brain and traveled toward the back and left side 

of the brain. 

{¶ 38} Dr. Balraj testified that she found stippling on the skin around the 

entrance wound. The pattern of stippling was compared with different patterns of 

stippling during test firings of the suspected murder weapon, which showed that 

the stippling found on Pickryl was consistent with the “type of pattern of stippling 

[that] appeared at the range of seven to nine inches from the muzzle of the gun to 

the target.” Dr. Balraj determined the cause of death to be the gunshot wound in 

the head with perforations of the skull and brain. 

{¶ 39} James Kooser, a firearms examiner with the Cleveland police, 

examined the .380-caliber handgun found at the time of Jackson’s arrest. Kooser 

testified that he had examined the bullet recovered during the autopsy, but it was 

too damaged to make any comparisons to bullets fired from the suspected murder 

weapon. He had also examined a cartridge case and a spent bullet with a copper 

jacket found at the Soap Opera Laundry. Kooser testified, “This weapon, in my 

opinion, fired that 380 auto cartridge case and the spent bullet.” 

G. Defense case 

{¶ 40} Jackson testified in his own behalf and admitted shooting and 

killing Pickryl. He then discussed his family life, educational background, and 

employment history. Jackson also stated that he had been convicted of drug 

possession in 2004 and spent a year in prison after violating probation. 

{¶ 41} During the summer of 2009, Jackson testified, he was using PCP, 

marijuana, and ecstasy, and he was drinking heavily. Jackson stated that he was 

on drugs during all the incidents, including the Soap Opera Laundry, and that he 

had not slept from June 15 to June 18, because of his constant drug use. 

{¶ 42} Jackson said he “messed up real bad” in killing Pickryl, and he 

apologized to her family. He said, “I just killed an innocent person that ain’t did 
January Term, 2014 

11 

nothing to me[.] * * * And she was good, a good lady, from what I see.” 

Jackson added, “Whether the Court like it or not, I don’t really feel fucked up 

about killing nobody. It’s who I killed that pisses me off for real; do you know 

what I’m saying?” 

{¶ 43} Jackson also testified, “I had no intentions to kill anybody when I 

came in there to rob the Soap Opera Laundry.” Jackson stated, “I was trying to 

intimidate her to hurry up,” and “I was trying to pop past the back of her head.” 

He claimed that Pickryl turned her head and “budged up” at the same time he 

fired the gun, causing her to be shot and killed. 

{¶ 44} After shooting Pickryl, Jackson admitted, he thought about 

shooting Diaz, because he did not want to leave any witnesses. But Jackson said, 

“I couldn’t do it,” and so he had shot over her head. He testified that Diaz was 

screaming and that he fired to “shut her up” so he could get out of there, but he 

“wasn’t trying to kill nobody.” 

{¶ 45} Jackson also described what led to his shooting Bentley. Jackson 

and Bentley had known each other for about five years. Jackson testified that he 

went to Bentley’s residence on the day before the shooting and they drank a 

couple of beers. 

{¶ 46} Bentley asked Jackson what was in the bag that he had with him, 

and Jackson opened the bag and showed him it contained a gun and some jewelry. 

Bentley then asked Jackson if he could keep the bag for Jackson. Jackson replied 

that he was giving the bag to someone else and that it was not his. But Jackson let 

Bentley take the bag. As Jackson later got ready to leave, he asked Bentley for 

the bag. However, Bentley said, “Red took my keys and * * * I can’t get in the 

house.” Bentley asked Jackson to return in an hour. But when he returned an 

hour later, Bentley was gone. 

{¶ 47} Around 4:30 or 5:00 a.m. the next morning, Jackson testified, he 

returned to Bentley’s residence and banged on the door. Jackson stated that he 
SUPREME COURT OF OHIO

12 

could smell crack-cocaine smoke coming from inside the house and that a 

prostitute walked out the door as he arrived. Jackson entered the house and told 

Bentley that he needed his bag, but the bag was gone, and Jackson concluded that 

Bentley had sold it and used the money to buy crack cocaine. According to 

Jackson, “[Bentley] got to reaching for something, and I know that gun is in there, 

and that is a big gun. * * * I’m not about to get shot * * * so basically I hit him 

in the leg—tried to hit him somewhere so—because he was reaching[.]” 

II. Case History

{¶ 48} Jackson was charged with three counts of aggravated murder for 

killing Pickryl. Count 31 charged Jackson with aggravated murder during an 

aggravated robbery, R.C. 2903.01(B). Count 32 charged him with aggravated 

murder during a kidnapping, R.C. 2903.01(B), and Count 33 charged him with 

aggravated murder by purposely killing Pickryl with prior calculation and design, 

R.C. 2903.01(A). 

{¶ 49} Each of the aggravated-murder counts included three death-penalty 

specifications: course of conduct involving the purposeful killing or attempt to 

kill two or more persons (Pickryl, Diaz, and Bentley), R.C. 2929.04(A)(5), felony 

murder predicated on aggravated robbery, R.C. 2929.04(A)(7), and felony murder 

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

{¶ 50} As to other counts involving Pickryl, Count 36 charged Jackson 

with kidnapping, and Counts 34 and 35 charged the aggravated robbery of the 

Soap Opera Laundry and/or Pickryl. As to Diaz, Count 37 charged him with 

attempted murder, Counts 38 and 39 charged aggravated robbery, Count 40 

charged felonious assault, and Count 41 charged kidnapping. As to Bentley, 

Count 1 charged Jackson with attempted murder, Counts 2 and 3 charged 

aggravated robbery, and Counts 4 and 5 charged felonious assault. Counts 6 and 

42 were dismissed. 
January Term, 2014 

13 

{¶ 51} As to the other robberies, Counts 7 though 30 charged Jackson with 

various offenses of aggravated robbery, robbery, kidnapping, and felonious 

assault. All the capital and noncapital counts included firearm specifications. 

{¶ 52} Jackson pleaded not guilty to all charges and specifications. 

{¶ 53} Following the completion of the state’s case, defense counsel made 

a Crim.R. 29 motion for acquittal. The three-judge panel denied the motion, but it 

deleted some language from various counts and specifications to conform the 

counts to the evidence. 

{¶ 54} The three-judge panel found Jackson guilty of the three aggravatedmurder counts and the accompanying death-penalty specifications. However, the 

panel found that Jackson was guilty of the course-of-conduct specification only as 

to Pickryl and Diaz. The panel also found Jackson guilty of all the noncapital 

counts and all the accompanying gun specifications and sentenced him 

accordingly. 

{¶ 55} Following a mitigation hearing, the panel sentenced Jackson to 

death. 

III. Issues on Appeal 

{¶ 56} In this appeal, Jackson raises 14 propositions of law. 

{¶ 57} The principal issues for review include the trial court’s decision to 

conduct a limited hearing regarding an issue under Atkins v. Virginia, 536 U.S. 

304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the validity of the jury waiver, 

because it occurred soon after Jackson informed the court that he had a bad 

headache and was having trouble focusing, the jurisdiction of the Cuyahoga 

County Grand Jury over offenses occurring in different counties and the 

sufficiency of the indictment as to those offenses, and ineffective assistance of 

counsel during the penalty phase. 

 
SUPREME COURT OF OHIO

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A. Pretrial and trial issues 

1. Judicial bias by conducting an unrequested Atkins hearing 

(proposition of law No. I) 

{¶ 58} Jackson contends that the trial court erred by ordering an Atkins

hearing even though the defense had not requested it. He argues that the trial 

court’s action showed judicial bias and interfered with defense counsel’s conduct 

of the case. Even assuming that the trial court did not overstep its bounds, he 

maintains, the Atkins hearing was flawed.1

a. Atkins and Lott

{¶ 59} On June 20, 2002, the Supreme Court ruled that the execution of a 

mentally retarded criminal violated the Eighth Amendment. Atkins v. Virginia, 

536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Atkins left to the states 

“‘the task of developing appropriate ways to enforce the constitutional 

restriction’” on executing the mentally retarded. Id. at 317, quoting Ford v. 

Wainwright, 477 U.S. 399, 405, 416-417, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986). 

{¶ 60} In State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 

1011, we developed procedures and substantive standards for resolving Atkins

claims. Lott adopted a three-part test that had been cited with approval in Atkins

at 308, fn. 3. The “Atkins” test” defined mental retardation as (1) significantly 

subaverage intellectual functioning, (2) significant limitations in two or more 

adaptive skills, such as communication, self-care, and self-direction, and (3) onset 

before the age of 18. Id. at ¶ 12. Lott went on to state: 

Most state statutes prohibiting the execution of the mentally 

retarded require evidence that the individual has an IQ of 70 or 

 

1

 The hearing is referred to as an “Atkins hearing,” but the trial court did not conduct a full Atkins

hearing in evaluating whether defense counsel was justified in not raising a claim that Jackson was 

mentally retarded, nor did it make any ruling in that regard. It merely had the experts testify. 
January Term, 2014 

15 

below. * * * While IQ tests are one of many factors that need to 

be considered, they alone are not sufficient to make a final 

determination on this issue. * * * We hold that there is a 

rebuttable presumption that a defendant is not mentally retarded if 

his or her IQ is above 70. 

Id. 

{¶ 61} Lott also held that the appropriate time to present an Atkins claim is 

at trial. Lott stated that “the trial court should consider defense Atkins claims, and 

hold hearings, in accordance with the standards set out in this opinion.” Id. at 

¶ 25. 

b. Facts 

(1) Trial court orders a hearing 

{¶ 62} Before trial, the court expressed concern about defense counsel’s 

strategy and trial preparation. On January 21, 2010, the trial court filed the 

following journal entry: 

The court has scheduled a hearing on whether the defendant’s 

attorneys have truly prepared this case for trial or (A) have only 

planned to plead the defendant guilty to one or more charges 

and/or (B) have planned to under-represent the defendant and 

provide him with an ineffective assistance of counsel basis for later 

appeal. The hearing on this issue is set for 01/25/10 * * *. 

{¶ 63} On January 25, 2010, defense counsel provided the court with 

information about its trial preparation. Defense counsel stated that Dr. John 

Fabian, a forensic and clinical psychologist, was meeting with Jackson and 
SUPREME COURT OF OHIO

16 

working on a report. Defense counsel informed the court that Dr. Fabian’s report 

would be completed and his opinion disclosed within two weeks. 

{¶ 64} On March 4, 2010, defense counsel reported that Dr. Fabian had 

completed his report. Dr. Fabian analyzed Jackson’s IQ and reported that he had 

a full-scale IQ of 75. 

{¶ 65} On March 19, 2010, the trial court filed a journal entry ordering 

“defense counsel to file any request for an Atkins hearing setting forth the factual 

foundation for such a hearing.” In the same entry, the court advised, “If no such 

filing is made, then the court will conduct a record hearing to establish why 

defense counsel refrained from requesting an Atkins hearing.” 

{¶ 66} During subsequent proceedings, defense counsel informed the 

court that they had consulted with Dr. Fabian and would not be filing a request for 

an Atkins hearing. The trial court responded: 

 Well, it came to the Court at the last hearing, last pretrial, 

that I did want to have a hearing to build a record to establish that 

the Atkins issue was considered, diligently investigated, and a 

justifiable decision made to pursue it or not. 

 That was because the IQ information were the numbers that 

they were. 

 While the Court is not surprised with your decision that you 

won’t pursue the Atkins issue, I think there is a couple of ways to 

go at this. 

 First of all, we could take both Doctor Aronoff’s addressing 

of the mental retardation issue in his sanity or competency reports 

and seal that up with Doctor Fabian’s report on that issue. 

 So that would be one way, building a record under seal to 

justify the defense’s determination on the Atkins hearing. 
January Term, 2014 

17 

 I’m not sure we need to go beyond that. 

 Because the numbers are what they are, I think we would 

be better served to do a brief hearing. 

{¶ 67} Defense counsel then stated, “After going through the report and 

consulting with our expert, * * * Dr. Fabian, we’re most comfortable saying that 

we choose not to pursue that issue at this time and, therefore, that is why we did 

not file an Atkins brief.” Defense counsel stated that Dr. Fabian might be called 

as a mitigation witness. He also added, “I’m uncomfortable with putting [Dr. 

Fabian] on the stand or to testify, whether it be by phone or in person, to give the 

government access to him, the record access to his testimony, before we actually 

call him as our witness.” 

{¶ 68} The trial court responded that the state would not be permitted to 

talk about anything other than the mental-retardation issue. The trial court also 

said, “When you say we’re not raising the issue at this time, let me remind you 

this is the only time you can raise it.” The trial court added: 

 The fact that it’s a do or die, do it now or don’t do it at all, 

is why I was the person that came up with wanting to have a record 

hearing to * * * build a record on why it wasn’t being done. 

 Otherwise with the numbers that are being bandied about 

by Dr. Fabian and Dr. Aronoff, * * * someone could second guess, 

well, we have, * * * with the Flynn affect [sic] this and that, 

something could have been done with it.2

 

 

2

 The “Flynn effect” posits that IQ scores for a population rise over time and that IQ tests that are 

not “re-normed” to adjust for rising IQ levels will overstate a testee’s IQ. See Walker v. True, 399 

F.3d 315, 322 (4th Cir.2005). 
SUPREME COURT OF OHIO

18 

{¶ 69} Defense counsel reiterated, “After consultation with Dr. Fabian, 

both my co-counsel and I, based on his advice as to whether or not we would 

succeed or fail on that issue, we chose not to go there, not to pursue it.” The trial 

court replied, “But, see, how do I know he considered the Flynn affect [sic]?” 

The trial court also mentioned that Dr. Aronoff did only four subtests of the 

Wechsler IQ test and that the court did not know how many subtests Dr. Fabian 

had completed in testing Jackson’s IQ. 

(2) Hearing conducted 

{¶ 70} On March 22, 2010, the trial court held a limited hearing on the 

Atkins issue. Dr. Michael Aronoff, a psychologist with the Cuyahoga County 

Court Psychiatric Clinic, testified that he had conducted a competency and sanity 

evaluation of Jackson. Dr. Aronoff evaluated Jackson by using the Vocabulary 

and Matrix Reasoning subtests of the Wechsler Abbreviated Scale of Intelligence 

(“WASI”). He testified that Jackson obtained a full-scale IQ score of 87 and that 

“with 95 percent certainty * * * the defendant’s true full scale IQ score lies within 

the range of 82 to 93.” 

{¶ 71} Dr. Aronoff also testified that Jackson’s IQ had been evaluated 

with the General Ability Measure for Adults (“GAMA”) in 2003 and 2007. 

Jackson’s GAMA IQ score was 87 in 2003 and 93 in 2007. Dr. Aronoff stated 

that the GAMA focuses primarily on performance-related tasks. He said, “It’s a 

group administered intelligence test that is often used in a setting such as prison 

because it affords one the opportunity to get a gross estimate of someone’s 

intellect without having to give an IQ test one on one.” 

{¶ 72} Dr. Aronoff reviewed the results of the Wechsler Adult Intelligence 

Scale, Fourth Edition (“WAIS-IV”), that Dr. Fabian administered to Jackson. 

Jackson’s IQ score was 75 on the WAIS-IV. Dr. Aronoff stated that the standard 

error of measurement (“SEM”) for the WAIS-IV IQ test administered to a person 

of Jackson’s age (30 years old) is 2.12. He concluded that “the examiner can say 
January Term, 2014 

19 

with 95 percent confidence that based on [the] full scale IQ score of 75 on the 

WAIS IV taking into consideration [the] standard error of measurement and other 

day to day factors, that an individual’s IQ score lies within the range of 71 to 80.” 

{¶ 73} Dr. Aronoff also testified that none of the records he was provided 

with suggested that Jackson met the second part of the Atkins test—onset of 

mental retardation before the age of 18. He said, “[F]rom the records that I 

reviewed there was nothing to suggest that he has been tested or that he was 

mentally retarded.” 

{¶ 74} During a telephone interview, Dr. Fabian explained that he was 

comfortable with the defense decision not to pursue an Atkins hearing. He stated 

that he had met with Jackson on seven occasions for a total of about ten hours, 

interviewed various family members, and reviewed Jackson’s school records. 

Based on his review, Dr. Fabian stated that he did not believe that Jackson was 

mentally retarded. He added, “My ethics say if I believe this person is 

incompetent or mentally retarded, I would indicate that to them.” But, Dr. Fabian 

said, “It’s my opinion that it’s not there.” 

{¶ 75} Dr. Fabian confirmed that Jackson’s IQ score was 75 on the WAISIV and that his score was not inconsistent with Jackson’s IQ score on the test 

administered by Dr. Aronoff. Dr. Fabian stated, “I gave him a full IQ test. His 

overall percentage range was five percentile, so he’s scoring lower with me. But I 

wouldn’t say that is inconsistent because [Dr. Aronoff] only gave like two of the 

ten subtests that I would give.” 

{¶ 76} The trial court concluded the hearing following Dr. Fabian’s 

testimony but made no findings as to whether Jackson was mentally retarded 

under Atkins. 

 
SUPREME COURT OF OHIO

20 

c. Analysis 

(1) Judicial bias 

{¶ 77} Jackson argues that the trial court exhibited bias in conducting an 

Atkins hearing that defense counsel did not request. 

{¶ 78} “It is well settled that a criminal trial before a biased judge is 

fundamentally unfair and denies a defendant due process of law.” State v. LaMar, 

95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 34, citing Rose v. Clark, 

478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). “Judicial bias has 

been described as ‘a hostile feeling or spirit of ill will or undue friendship or 

favoritism toward one of the litigants or his attorney, with the formation of a fixed 

anticipatory judgment on the part of the judge, as contradistinguished from an 

open state of mind which will be governed by the law and the facts.’ ” State v. 

Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶ 48, quoting State 

ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph 

four of the syllabus. 

{¶ 79} First, Jackson asserts that the trial court’s order to conduct an 

Atkins hearing shows that the judge was upset with counsel’s diligence in 

preparing his case and was harboring a bias against the defense. The trial court 

expressed concern about defense counsel’s trial preparation and strategy during 

pretrial proceedings. But a hearing was conducted on this matter, and defense 

counsel provided the court with information that showed that the defense was 

diligently preparing for trial. Nothing shows that the trial court harbored bias 

against defense counsel as a result of early concerns that prompted the court to 

order a hearing. 

{¶ 80} Jackson refers to the trial court’s hearing as a “reverse-Atkins

hearing,” because it was conducted to show that he was not mentally retarded. 

However, this is a misnomer, and the record does not indicate that the hearing was 

held for this purpose. Instead, the trial court conducted the hearing to ensure that 
January Term, 2014 

21 

Jackson received a fair trial and to ensure the appropriateness of proceeding to 

trial with a potential death sentence. The trial court emphasized the importance of 

holding the hearing, because an Atkins hearing must be conducted during the trial 

and not later. See State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 

N.E.2d 1263, ¶ 155 (defendant waives an Atkins claim by not raising it at trial). It 

is also clear that the trial court conducted the hearing with an open mind and 

would have ordered a further evaluation of Jackson if the evidence indicated that 

he might be mentally retarded. 

{¶ 81} Jackson cites Dean as supporting his claim. In Dean, the trial court 

made accusatory and threatening comments toward counsel during trial and 

denied counsel reasonable opportunities to consult with the defendant. 127 Ohio 

St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, at ¶ 51 and 53. Moreover, the trial 

court suggested that counsel had manipulated, defrauded, and deceived the court 

in attempting to disqualify the judge from sitting on the trial. Id. at ¶ 22 and 51. 

Indeed, the trial court found counsel in direct criminal contempt after the trial and 

fined them each $2,000. Id. at ¶ 46. 

{¶ 82} Here, the trial court exhibited no ill will toward the defense by 

ordering the hearing. It listened to Dr. Aronoff’s and Dr. Fabian’s evaluation of 

Jackson’s IQ scores and heard their opinion that Jackson did not meet the Atkins 

criteria. Nothing in the record indicates that the trial court was biased against 

defense counsel. 

{¶ 83} Second, Jackson argues that the trial judge’s overzealous desire to 

build a record evinced a bias in favor of the state, which was seeking the death 

penalty. 

{¶ 84} There is no evidence to support this claim. Defense counsel 

averred that Jackson was not mentally retarded and was thus eligible for the death 

penalty. The hearing elicited opinions and testimony that may have shown that 
SUPREME COURT OF OHIO

22 

Jackson was mentally retarded and thus not eligible for the death penalty. Thus, 

there is no basis to conclude bias existed on the part of the judge. 

{¶ 85} Finally, Jackson invokes State v. Gillard, 40 Ohio St.3d 226, 533 

N.E.2d 272 (1988), overruled in part on other grounds, State v. McGuire, 80 

Ohio St.3d 390, 402-403, 686 N.E.2d 1112 (1997), and argues that the trial court 

should have appointed another judge to conduct the Atkins hearing so that the 

sitting judge would not have been influenced by the adduced evidence. Gillard 

holds, “When the state seeks to obtain relief from discovery or to perpetuate 

testimony under Crim.R. 16(B)(1)(e) [now, Crim.R. 16(D)(1)], the judge who 

disposes of such a motion may not be the same judge who will conduct the trial.” 

Id. at paragraph one of the syllabus. Gillard adopted this rule because “when a 

judge hears information [while conducting a pretrial hearing] that a defendant has 

attempted to harm, coerce, or intimidate an opposing witness, there is an 

unnecessary risk that the judge will harbor a bias against that defendant.” Id. at 

229. 

{¶ 86} Gillard, however, is inapposite. Testimony about mental 

retardation is not similar to testimony that the defendant may have intimidated 

witnesses, nor did Jackson argue convincingly otherwise. Thus, the trial court did 

not need to appoint another judge to conduct an Atkins hearing. 

(2) Interference with defense counsel 

{¶ 87} Jackson argues that the trial court improperly interjected itself into 

the defense function after trial counsel informed the court that it was not going to 

raise an Atkins defense. 

{¶ 88} Every trial court has a responsibility to conduct a trial in an orderly 

fashion and to ensure that a defendant receives a fair trial. See State v. Fears, 86 

Ohio St.3d 329, 353, 715 N.E.2d 136 (1999) (Moyer, C.J., dissenting). However, 

“trial courts cannot interfere with counsel’s trial tactics or representation of their 

clients.” State v. Hill, 75 Ohio St.3d 195, 212, 661 N.E.2d 1068 (1996). 
January Term, 2014 

23 

{¶ 89} First, Jackson argues that the trial court’s interference with his 

counsel’s strategy undermined his confidence in counsel. However, Jackson’s 

generalized claim fails to explain how the trial court’s action had any adverse 

impact on the attorney-client relationship. Thus, we reject this claim. 

{¶ 90} Second, Jackson argues that the court’s interference with the 

defense case resulted in a skewed assessment of his low intelligence, because a 

full evaluation was not conducted to determine whether he was mentally retarded. 

Jackson asserts that this resulted in an improper assessment of his low intelligence 

as a mitigating factor. However, nothing in the record indicates that Dr. Fabian’s 

later mitigation testimony about Jackson’s low intelligence was skewed as a result 

of his failure to conduct a full evaluation of Jackson for Atkins purposes. 

Accordingly, we also reject this claim. 

{¶ 91} Finally, Jackson argues that the court’s interference in defense 

counsel’s strategy may have precluded him from raising an Atkins claim during 

future postconviction proceedings. Jackson asserts that if a full adaptivefunctioning investigation had been completed, he may have been found to be 

mentally retarded. But he argues that such claims can now be dismissed on the 

basis of res judicata. We also reject this argument. 

{¶ 92} Under the doctrine of res judicata, a defendant cannot raise an issue 

in a postconviction petition if he or she raised or could have raised the issue at 

the trial that resulted in that judgment of conviction or on an appeal from that 

judgment. State v. Szefcyk, 77 Ohio St.3d 93, 96, 671 N.E.2d 233 (1996); State v. 

Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus. 

{¶ 93} Here, the trial court conducted the hearing because Jackson would 

have waived his Atkins claim if he had not raised it at trial. See Frazier, 115 Ohio 

St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, at ¶ 155 (an Atkins claim can be 

waived). Moreover, as the United States Supreme Court has stated, a 

“ ‘procedure does not run foul of the Fourteenth Amendment because another 
SUPREME COURT OF OHIO

24 

method may seem to our thinking to be fairer or wiser or to give a surer promise 

of protection to the prisoner at the bar.’ ” Leland v. Oregon, 343 U.S. 790, 799, 

72 S.Ct. 1002, 96 L.Ed. 1302 (1952), quoting Snyder v. Massachusetts, 291 U.S. 

97, 105, 54 S.Ct. 330, 78 L.Ed.2d 674 (1934); see also Medina v. California, 505 

U.S. 437, 451, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (“The Due Process Clause 

does not * * * require a State to adopt one procedure over another on the basis 

that it may produce results more favorable to the accused”). 

{¶ 94} Furthermore, Jackson’s claim that he may have been found to be 

mentally retarded if a full adaptive-functioning test had been completed is 

speculative. This argument also overlooks the requirement that all three parts of 

the Atkins test be met before a defendant can be found to be mentally retarded. 

Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, at ¶ 12. Even if 

additional testing had shown lower adaptive functioning, Jackson has made no 

showing that he met the remaining parts of the Atkins test. 

(3) Failure to conduct a complete Atkins hearing 

{¶ 95} Jackson argues that even assuming that the trial court did not 

overstep its boundaries in ordering a hearing, the trial court failed to conduct a 

proper Atkins hearing. Jackson argues that the trial court failed to consider the 

second prong of the mental-retardation definition: “significant limitations in two 

or more adaptive skills, such as communication, self-care, and self-direction.” Id.

at ¶ 12. Jackson also argues that the trial court failed to consider the Flynn effect 

and the SEM in considering his IQ scores. 

{¶ 96} In this instance, the trial court did not conduct an Atkins hearing. 

The trial court held a hearing “to build a record to establish that the Atkins issue 

was considered, diligently investigated, and a justifiable decision made to pursue 

it or not.” The trial court focused on the intellectual-functioning part of the 

mental-retardation definition. Dr. Aronoff and Dr. Fabian addressed Jackson’s IQ 
January Term, 2014 

25 

scores and explained that they were above 70. Pursuant to Lott, his IQ scores 

raise a rebuttable presumption that he is not mentally retarded. Lott at ¶ 12. 

{¶ 97} The trial court also considered the Flynn effect in evaluating 

Jackson’s IQ scores. Dr. Aronoff discussed the Flynn effect and the theory that 

“generations get smarter over time,” and he acknowledged that a test that was 

“standardized 25 years before, because of the Flynn effect, * * * might be 

inaccurate” and a “score of 80 might actually be lower.” 

{¶ 98} In addition, the trial court considered the SEM in evaluating 

Jackson’s full-scale IQ score of 75. Dr. Aronoff testified that “[a]ccording to the 

WAIS IV manual the standard error of measurement for similarly aged persons as 

Mr. Jackson is 2.12.” He stated that there is a 90 percent certainty that Jackson’s 

full-scale IQ score lies within the range of 72 to 79 and that “[f]or the 95 percent 

confidence interval it would be 71 to 80.” 

{¶ 99} Finally, Jackson is not claiming that he is mentally retarded. Thus, 

Jackson’s complaint that the trial court conducted an abbreviated Atkins hearing 

makes no difference to the outcome of the case. Jackson was not prejudiced by 

the hearing, because the court did not conduct an Atkins hearing nor did it reach a 

conclusion or journalize an entry to that effect, but rather it elicited expert 

testimony to demonstrate that the matter had been considered. 

d. Conclusion 

{¶ 100} Based upon Jackson’s IQ scores and the possible impact of the 

Flynn effect, the trial court was justified in inquiring into whether an evaluation of 

Jackson’s mental abilities was appropriate. In that regard, the trial court did not 

demonstrate judicial bias or unduly interfere with defense counsel’s function by 

eliciting that testimony. 

{¶ 101} The trial court’s decision to conduct an evidentiary hearing on the 

Atkins issue did not prejudice Jackson and could have been favorable to his 

defense. No evidence was presented showing that Jackson was mentally retarded. 
SUPREME COURT OF OHIO

26 

Thus, even assuming that the trial court overstepped its bounds in conducting this 

abbreviated hearing, no prejudice occurred. Accordingly, we reject proposition of 

law No. I. 

2. Jury waiver (proposition of law No. II) 

{¶ 102} Jackson argues that his waiver of a jury trial was not voluntary, 

knowing, and intelligent, because he told the court that his head was “banging” 

and he was unable to focus during the trial court’s waiver inquiry. 

a. Jury-waiver inquiry 

{¶ 103} During a pretrial hearing, Jackson submitted his written waiver of 

a jury trial to the trial court and informed the court that he had fully discussed his 

rights to a jury trial with defense counsel before signing the waiver. The trial 

court then reviewed the written waiver with him and explained the consequences 

of waiving a jury trial. The following exchange occurred: 

 THE COURT: And it says—it goes on to say you’re not 

under the influence of any drugs, alcohol or medication that would 

affect your decision. Does the doctors (sic) have you on any drugs 

or medication of any kind? 

 THE DEFENDANT: I feel sick, but other than that. 

 THE COURT: When you say you feel sick, do you have a 

head cold or upset stomach? What? 

 THE DEFENDANT: My head is banging right now. I 

didn’t get a chance to get in the shower, nothing. They just totally 

woke me up and said you’re going to court. So I’m like just out of 

it. I didn’t get a chance to pull myself together in court. 

 THE COURT: If you are in jail right now and your head 

was pounding, what could you do about it? 
January Term, 2014 

27 

 THE DEFENDANT: I would probably be taking Tylenol, 

probably get some water. I’m probably dehydrated. 

 THE COURT: You know it’s about 3:20 in the afternoon. 

Did they give you lunch? 

 THE DEFENDANT: Yeah, I had a bologna sandwich and 

bread. 

 THE COURT: Did you have any liquid? 

 THE DEFENDANT: No. 

 * * * 

 THE COURT: Okay. Well, we’re going to arrange for 

some paper cups. If we have water brought, will that help? 

 THE DEFENDANT: Yes. 

 THE COURT: Are you well enough for me to move on 

with this, or do you want to take a rest? 

 THE DEFENDANT: I’m alright. 

 THE COURT: If you change your mind, you will tell 

me, right? 

 THE DEFENDANT: Yes. 

 THE COURT: I’m not happy to hear that your head is 

pounding. I know what that is like. That is not good. 

{¶ 104} The trial court then continued to explain the jury waiver. It 

discussed mitigation and explained that all 12 jurors would have to agree on a 

death sentence. The trial court also explained the life sentences that a jury might 

impose. As the questioning progressed, the trial court noted that Jackson was 

provided some water. Shortly thereafter, the following discussion ensued: 
SUPREME COURT OF OHIO

28 

 THE COURT: * * * If [the jury] cannot unanimously agree 

on a life sentence, then the matter of the sentence is out of their 

hands and given to the trial Judge to pick a life sentence. Have I 

confused you? 

 THE DEFENDANT: My head hurts. I can’t really focus 

right now. 

 MR. MULLEN (Defense counsel): He said his head hurts. 

He’s a little delusional. That is why we got the water. He ate, but 

I don’t think he had any water. 

 THE DEFENDANT: I understand a little, little by little. 

 THE COURT: I’ll give you an opportunity here in a 

minute to talk to your lawyers, too. 

{¶ 105} The trial court explained that a three-judge panel would decide 

Jackson’s case if he waived a jury trial. It also provided an explanation about 

how a three-judge panel would decide Jackson’s case. The trial court then gave 

Jackson an opportunity to confer with counsel before concluding the inquiry. The 

trial court then finished the colloquy with Jackson about the waiver: 

 THE COURT: Any questions Mr. Jackson? 

 THE DEFENDANT: No, Ma’am. 

 THE COURT: You want more water? 

 THE DEFENDANT: No. I’m all right. Thank you. 

 THE COURT: What? 

 THE DEFENDANT: No thank you. 

 THE COURT: Okay. As I said earlier, Mr. Mullen did 

sign the certification that everything has been explained to you. 
January Term, 2014 

29 

Any questions at all in your mind, Mr. Jackson, about the wisdom 

of waiving your jury trial? 

 THE DEFENDANT: No, Ma’am. 

 THE COURT: You’re sure this is what you want to do? 

 THE DEFENDANT: Yes, Ma’am. 

 THE COURT: Okay. I’m going to find this was an 

intelligent, voluntary and knowingly made decision on Mr. 

Jackson’s part to waive his jury trial. 

b. Jury-waiver requirements 

{¶ 106} A jury waiver must be voluntary, knowing, and intelligent. 

Crim.R. 23; State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 

N.E.2d 927, ¶ 37. If the record shows a jury waiver, the conviction will not be set 

aside except on a plain showing that the defendant’s waiver was not freely and 

intelligently made. Fitzpatrick at ¶ 37. Moreover, a written waiver is 

presumptively voluntary, knowing, and intelligent. See United States v. 

Sammons, 918 F.2d 592, 597 (6th Cir.1990); State v. Hunter, 131 Ohio St.3d 67, 

2011-Ohio-6524, 960 N.E.2d 955, ¶ 49. 

{¶ 107} R.C. 2945.05 requires that a “waiver of trial by jury must be made 

in open court after the defendant has been arraigned and has had opportunity to 

consult with counsel.” But “[t]here is no requirement for a trial court to 

interrogate a defendant in order to determine whether he or she is fully apprised of 

the right to a jury trial.” State v. Jells, 53 Ohio St.3d 22, 559 N.E.2d 464 (1990), 

paragraph one of the syllabus. Indeed, “a defendant need not have a complete or 

technical understanding of the jury trial right in order to knowingly and 

intelligently waive it.” State v. Bays, 87 Ohio St.3d 15, 20, 716 N.E.2d 1126 

(1999). Rather, to comply with R.C. 2945.05, this court has held: 
SUPREME COURT OF OHIO

30 

 We do not mandate magic words, or a prolonged colloquy, 

but simply what Ohio law intends—that a defendant while in the 

courtroom and in the presence of counsel, if any, acknowledge to 

the trial court that the defendant wishes to waive the right to a jury 

trial. 

State v. Lomax, 114 Ohio St.3d 350, 2007-Ohio-4277, 872 N.E.2d 279, ¶ 48.

c. Analysis 

{¶ 108} Jackson challenges the validity of his jury waiver because he told 

the court during the waiver proceedings that his head was “banging” and he 

lacked focus, and defense counsel told the court that Jackson was a “little 

delusional.” 

{¶ 109} Jackson informed the trial judge in open court that he was waiving 

his right to a jury trial. This was all that was necessary to satisfy R.C. 2945.05. 

Further questioning was not required to ensure that Jackson understood all the 

rights to a jury trial that he was giving up. See State v. Sanders, 188 Ohio App.3d 

452, 2010-Ohio-3433, 935 N.E.2d 905, ¶ 13-15 (10th Dist.). 

{¶ 110} Moreover, Jackson does not challenge the waiver form that he 

signed waiving a jury trial. As previously discussed, a written waiver is 

presumptively voluntary, knowing, and intelligent. Hunter, 131 Ohio St.3d 67, 

2011-Ohio-6524, 960 N.E.2d 955, at ¶ 49. Jackson’s written waiver stated that he 

voluntarily waived his right to a jury and elected to be tried by a three-judge 

panel. The waiver acknowledged that he understood that he had the right to a 

“jury of twelve, and that no verdict could be made by a jury except by agreement 

of all twelve members of that jury.” The waiver stated that “no threats or 

promises have been made to induce me to waive this right, and * * * I am not 

under the influence of any drugs, alcohol, or medication that would affect my 
January Term, 2014 

31 

decision.” Here, Jackson has failed to overcome the presumption that his written 

waiver was voluntarily, knowingly, and intelligently made. 

{¶ 111} Nevertheless, Jackson argues that the trial court ignored his 

complaint that he had a headache during the waiver inquiry. But the trial court 

did not ignore Jackson’s complaint and asked Jackson about his headache and 

feeling sick. Jackson replied that he was probably dehydrated, because he did not 

have anything to drink during lunch. The trial court then took steps to respond to 

Jackson’s complaints. Jackson was given some water. The trial court also 

afforded Jackson the opportunity to take a break before the questioning 

proceeded. But Jackson said that he was all right and the inquiry continued. 

Under these circumstances, the trial court could accept Jackson’s assurances and 

continue with the waiver inquiry. 

{¶ 112} Jackson also complains that the trial court should have stopped 

the proceedings after he repeated that he had a headache and said, “I can’t really 

focus right now.” That comment was a continuation of his earlier complaint 

about being dehydrated. Moreover, neither Jackson nor counsel asked for a recess 

or a continuance. Thus, the court had no reason to interrupt its jury-waiver 

colloquy. 

{¶ 113} Jackson argues that the trial court ignored defense counsel’s 

statement that he was “delusional.” Jackson interprets counsel’s comment as 

raising a question whether he had a psychological problem. Accordingly, Jackson 

argues that the trial court should have called a recess and referred him to the court 

clinic for an evaluation. However, defense counsel’s comment, “He’s a little 

delusional,” was followed by counsel’s statement, “That is why we got the 

water.” This shows that defense counsel was talking about Jackson’s dehydration 

and not a psychological problem. 

{¶ 114} Dr. Aronoff had found Jackson competent to stand trial. 

Jackson’s complaints about having a headache and being unable to focus were not 
SUPREME COURT OF OHIO

32 

sufficient to undermine that determination. The trial court could also rely on its 

own observations because Jackson had appeared before the court on previous 

occasions. Moreover, Jackson’s own counsel never challenged Jackson’s ability 

to understand the jury waiver. See State v. Ketterer, 111 Ohio St.3d 70, 2006-

Ohio-5283, 855 N.E.2d 48, ¶ 72. “[F]actual determinations are best left to those 

who see and hear what goes on in the courtroom.” State v. Cowans, 87 Ohio 

St.3d 68, 84, 717 N.E.2d 298 (1999). 

{¶ 115} As a final matter, Jackson argues that the trial court’s acceptance 

of his jury waiver after he had complained about his headache and defense 

counsel had stated that he was delusional constituted structural error. 

{¶ 116} However, no error occurred in the trial court’s acceptance of 

Jackson’s jury waiver. Thus, we also reject Jackson’s structural-error argument. 

{¶ 117} Based on the foregoing, proposition of law No. II is overruled. 

3. Jurisdiction and venue: offenses in different counties 

(proposition of law No. III) 

{¶ 118} Jackson argues that the Cuyahoga County Grand Jury did not 

have jurisdiction to indict him for offenses occurring in Lorain and Erie Counties. 

He also argues that Cuyahoga County was not the proper venue in which to try 

the offenses committed outside Cuyahoga County. 

a. Background 

{¶ 119} In this case, the Cuyahoga County Grand Jury indicted Jackson 

for the robbery of a Howard Johnson’s in Erie County (Counts 19 through 21) and 

the robbery of the Walgreens Drug Store in Lorain County (Counts 22 through 

31). Notably, Jackson did not object during trial to the indictment for the offenses 

occurring in Erie or Lorain County or the trial court’s venue or jurisdiction over 

those offenses. 

 
January Term, 2014 

33 

b. Analysis 

(1) Constitutional and statutory law 

{¶ 120} The Ohio Constitution, Article I, Section 10, provides that “no 

person shall be held to answer for a capital, or otherwise infamous, crime, unless 

on presentment or indictment of a grand jury.” R.C. 2939.08 sets forth the duties 

of a grand jury: “After the charge of the court of common pleas, the grand jury 

shall retire with the officer appointed to attend it, and proceed to inquire of and 

present all offenses committed within the county.” (Emphasis added.) 

{¶ 121} As to venue, Article I, Section 10 states that an accused is entitled 

to “a speedy trial by an impartial jury of the county in which the offense is alleged 

to have been committed.” 

{¶ 122} R.C. 2901.12, Ohio’s venue statute, provides: 

 (A) The trial of a criminal case in this state shall be held in 

a court having jurisdiction of the subject matter, and in the territory 

of which the offense or any element of the offense was committed. 

 * * * 

 (H) When an offender, as part of a course of criminal 

conduct, commits offenses in different jurisdictions, the offender 

may be tried for all of those offenses in any jurisdiction in which 

one of those offenses or any element of one of those offenses 

occurred. Without limitation on the evidence that may be used to 

establish the course of criminal conduct, any of the following is 

prima-facie evidence of a course of criminal conduct: 

 (1) The offenses involved the same victim, or victims of the 

same type or from the same group. 

 * * * 
SUPREME COURT OF OHIO

34 

 (5) The offenses involved the same or a similar modus 

operandi. 

 (6) The offenses were committed along the offender’s line 

of travel in this state, regardless of the offender’s point of origin or 

destination. 

(2) Jurisdiction of the Cuyahoga County Grand Jury: 

offenses in Erie and Lorain Counties 

{¶ 123} In support of his argument that the Cuyahoga County Grand Jury 

lacked jurisdiction to indict him for offenses that occurred outside Cuyahoga 

County, Jackson cites State v. Nevius, 147 Ohio St. 263, 268-269, 71 N.E.2d 258 

(1947). 

{¶ 124} Nevius recognized: “A grand jury may inquire of and present 

only such offenses as have been committed within the county for which such 

grand jury was impaneled and sworn.” Id. at 263. In Nevius, the defendant was 

charged with bribery that occurred in Clark County, where the indictment was 

returned and the trial had. Id. at 265. However, the state presented no evidence at 

trial showing where Nevius accepted the bribe. The only evidence was the 

defendant’s testimony that the alleged bribe, an automobile, had been delivered to 

him in Montgomery County. Id. at 267. On appeal, this court concluded that 

there was a failure of proof that the defendant had accepted the bribe in Clark 

County and held that he should not have been indicted and tried for that offense in 

Clark County. Id. at 269. 

{¶ 125} Jackson also cites State v. Centers, 5th Dist. Delaware No. 82-

CA-38, 1983 WL 6551 (July 19, 1983), which followed the Nevius rationale and 

reversed a conviction for offenses that occurred outside Delaware County, where 

the grand jury was impaneled. In Centers, the Delaware County Grand Jury 

returned a multiple-count indictment for various felonies, none of which had 
January Term, 2014 

35 

occurred within Delaware County. Id. at *1. In reversing the convictions, the 

court cited R.C. 2938.08, which the court said “plainly states that a Grand Jury’s 

power to hear a cause is limited to offenses committed within the county.” Id. at 

*2. The court added, “Failure to satisfy these provisions constitute[s] a failure of 

the Grand Jury to gain jurisdiction, or power, over the subject matter involved.” 

Id.

{¶ 126} The state responds that the rationale of State v. Ahmed, 8th Dist. 

Cuyahoga No. 84220, 2005-Ohio-2999, supports a finding that the Cuyahoga 

County Grand Jury had authority to indict Jackson for offenses that occurred 

outside the county. Ahmed held that the Cuyahoga County Grand Jury had 

jurisdiction to indict the defendant for a series of sexual offenses that occurred in 

Cuyahoga, Geauga, and Summit Counties because all the offenses were part of 

the same course of criminal conduct that occurred in Cuyahoga County. Id. at 

¶ 11. 

{¶ 127} Ahmed relied on R.C. 2901.11, which grants jurisdiction to Ohio 

courts over criminal offenses that occur in Ohio. The statute provides that “[a] 

person is subject to criminal prosecution and punishment in this state if * * * [t]he 

person commits an offense under the laws of this state, any element of which 

takes place in this state.” R.C. 2901.11(A)(1). Thus, the court concluded that the 

trial court had jurisdiction to proceed on all counts. Id. at ¶ 6. 

{¶ 128} Ahmed emphasized that there was “no constitutional requirement 

that limits a grand jury from indicting only on offenses that occurred in the county 

in which it resides when the additional offenses presented are part of the same 

course of criminal conduct.” Id. at ¶ 10. Ahmed also rejected arguments that R.C. 

2939.08 governs jurisdiction: “This statute is not a jurisdictional statute; rather, it 

pertains to the duty of the grand jury. While the statute broadly defines the duty 

of the grand jury, it does not govern its exclusive authority.” Id. at ¶ 8. 
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{¶ 129} Ahmed added that R.C. 2939.08 “cannot be considered in 

isolation” and should be viewed in conjunction with Ohio’s venue statute, R.C. 

2901.12. Id. at ¶ 8 and 14. Ahmed stated that R.C. 2901.12 recognizes the 

“modern mobility of criminal offenders.” Id. at ¶ 9. The court also noted that 

R.C. 2901.12(H) provides that an offender who commits offenses in different 

counties as part of a course of criminal conduct may be tried in any one of those 

jurisdictions, id. at ¶ 9-10, and reasoned that “the same applies to the authority of 

the grand jury within those jurisdictions,” id. at ¶ 10. Accordingly, Ahmed held 

that “a grand jury of one county has authority to indict on offenses occurring in 

other counties provided that those offenses are part of a course of criminal 

conduct.” Id. at ¶ 11. 

{¶ 130} In addition, Ahmed refused to apply Nevius, because there was no 

allegation in Nevius that the offenses occurred as part of a course of criminal 

conduct. And Nevius was decided before the enactment of R.C. 2901.12. Id. at 

¶ 13. 

{¶ 131} There is no constitutional or statutory provision that prohibited the 

Cuyahoga County Grand Jury from indicting Jackson for offenses that occurred in 

Erie and Lorain Counties as part of a course of criminal conduct that included 

crimes within Cuyahoga County. R.C. 2901.11 and 2901.12 permit a grand jury 

to indict an offender for offenses that occurred outside the county, provided that 

the offenses are part of the same course of criminal conduct that took place in the 

county in which the grand jury resides. Ahmed at ¶ 14. 

{¶ 132} Here, Jackson and his accomplices committed six robberies 

between June 15 and 17, 2009, as part of a course of criminal conduct. Evidence 

demonstrated that these robberies were part of a course of conduct. The targets 

were small businesses (bars, laundries, and a motel); the crimes occurred late at 

night or early in the morning, when the victims were likely to be alone; and the 

crimes took place in a line of travel between Cuyahoga and Erie Counties. Thus, 
January Term, 2014 

37 

the Cuyahoga County Grand Jury had jurisdiction to indict him for the offenses 

that occurred in Erie and Lorain Counties, and venue for those offenses was 

proper in Cuyahoga County. 

(3) Sufficiency of the indictment 

{¶ 133} Jackson further challenges the sufficiency of the indictment 

because the grand jury did not specify that the offenses charged in Counts 19 

through 21 occurred in Erie County and that the offenses charged in Counts 22 

through 30 occurred in Lorain County. 

{¶ 134} The indictment states that it is a true bill indictment for attempted 

murder and 41 additional counts that occurred from “06/02/2009 to 06/18/2009.” 

The preamble to Count 1 (the attempted murder of Stanley Bentley) of the 42-

count indictment then states: “The Jurors of the Grand Jury of the State of Ohio, 

within and for the body of the County aforesaid, on their oaths, IN THE NAME 

AND BY THE AUTHORITY OF THE STATE OF OHIO, do find and present, 

that the above named Defendant(s), on or about the date of the offense set forth 

above, in the County of Cuyahoga, and/or Erie and/or Lorain, unlawfully * * *.” 

(Emphasis added. Capitalization sic.) Counts 19 through 21 do not specify that 

the offenses occurred in Erie County, and Counts 22 through 30 do not specify 

that the offenses occurred in Lorain County. 

{¶ 135} R.C. 2941.08(F) provides that an indictment is not invalid “[f]or 

the want of an allegation of the time or place of a material fact when the time and 

place have been once stated therein.” In State v. Williams, 53 Ohio App.3d 1, 4, 

557 N.E.2d 818 (10th Dist.1988), the court relied on R.C. 2941.08(F) in holding 

that it was sufficient to allege once in a 12-count indictment that the offense had 

occurred in Franklin County. See also State v. White, 8th Dist. Cuyahoga No. 

95066, 2011-Ohio-4089, ¶ 15-16. 

{¶ 136} In the present case, the indictment states that the offense occurred 

“in the County of Cuyahoga, and/or Erie and/or Lorain.” But it fails to specify 
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which of the counts occurred in Erie and Lorain Counties. R.C. 2941.08(F) does 

not apply, because none of the counts “once stated” that they occurred in Erie or 

Lorain Counties. Thus, Counts 19 through 21 and Counts 22 through 30 do not 

comport with R.C. 2941.08(F). 

{¶ 137} However, Jackson failed to object to the indictment at trial. We 

have held that “when a defendant fails to object to an indictment that is defective 

because the indictment did not include an essential element of the charged 

offense, a plain error analysis is appropriate.” State v. Colon, 119 Ohio St.3d 204, 

2008-Ohio-3749, 893 N.E.2d 169, ¶ 7; see also State v. Frazier, 73 Ohio St.3d 

323, 332, 652 N.E.2d 1000 (1995). Thus, we must analyze each of the defective 

counts separately to determine both whether it reflects an “obvious” error, State v. 

Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002), and whether “ ‘but for 

[that] error, the outcome of the trial clearly would have been otherwise,’ ” State v. 

Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 108, quoting State 

v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph two of the syllabus. 

{¶ 138} The state provided a detailed bill of particulars that set out the 

location of the offenses. Thus, no plain error exists as to any of these counts. 

{¶ 139} Jackson asserts that the grand jury made no findings that the 

offenses in Erie and Lorain Counties were part of a course of criminal conduct 

together with the offenses that occurred in Cuyahoga County. Jackson argues, 

without citation to authority, that the grand jury’s failure to find a course of 

criminal conduct invalidates the indictment as to those offenses. 

{¶ 140} The purpose of a grand-jury indictment is to give notice to the 

accused. See State v. Horner, 126 Ohio St.3d 466, 2010-Ohio-3830, 935 N.E.2d 

26, ¶ 10. Crim.R. 7(B) explains the structure and sufficiency requirements of an 

indictment: 
January Term, 2014 

39 

The statement [that the defendant has committed an offense] may 

be made in ordinary and concise language without technical 

averments or allegations not essential to be proved. The statement 

may be in the words of the applicable section of the statute, 

provided the words of that statute charge an offense, or in words 

sufficient to give the defendant notice of all the elements of the 

offense with which the defendant is charged. 

{¶ 141} Here, none of the offenses that Jackson allegedly committed in 

Erie and Lorain Counties included the proof of a course of criminal conduct as an 

essential element of the offense. Thus, the indictment was not required to include 

such language. Defense counsel also failed to object to this alleged flaw in the 

indictment at trial and waived all but plain error. We have concluded that no 

plain error occurred, and this argument is not well taken. 

(4) Venue 

{¶ 142} Jackson also questions whether the court had venue to try these 

offenses. Jackson argues that the state failed to establish that the offenses that 

occurred in Erie and Lorain Counties were part of a criminal course of conduct 

that included crimes in Cuyahoga County. But again, Jackson failed to object to 

venue at trial and thus waived all but plain error. See State v. Weber, 2d Dist. 

Montgomery No. 25508, 2013-Ohio-3172, ¶ 33 (defendant’s failure to object at 

trial that the state failed to prove the offense occurred in the county where he was 

tried constitutes waiver of the issue); State v. Loucks, 28 Ohio App.2d 77, 82, 274 

N.E.2d 773 (4th Dist.1971). 

{¶ 143} Venue is not a material element of any offense charged. State v. 

Smith, 87 Ohio St.3d 424, 435, 721 N.E.2d 93 (2000), citing State v. Headley, 6 

Ohio St.3d 475, 477, 453 N.E.2d 716 (1983). The elements of the offense 

charged and the venue of the matter are separate and distinct. State v. Draggo, 65 
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40 

Ohio St.2d 88, 90, 418 N.E.2d 1343 (1981). Nevertheless, venue is a fact that 

must be proved beyond a reasonable doubt unless it is waived by the defendant. 

Headley at 477. 

{¶ 144} Trial courts have broad discretion to determine the facts that 

would establish venue. Toledo v. Taberner, 61 Ohio App.3d 791, 793, 573 

N.E.2d 1173 (6th Dist.1989). Venue need not be proven in express terms; it may 

be established either directly or indirectly by all the facts and circumstances of the 

case. Headley at 477. 

{¶ 145} R.C. 2901.12(H) recognizes that an offender who commits 

offenses in different jurisdictions as part of a course of criminal conduct may be 

tried in any one of those jurisdictions. Thus, as long as there was evidence from 

which the trial court could have determined beyond a reasonable doubt that one of 

the alleged offenses was committed in Cuyahoga County as part of a course of 

criminal conduct, then venue was properly established. See State v. Beuke, 38 

Ohio St.3d 29, 41, 526 N.E.2d 274 (1988). 

{¶ 146} Prima facie evidence of a course of criminal conduct may be 

established through proof that the offenses involved victims of the same type, 

R.C. 2901.12(H)(1); involved the same or similar modus operandi, (H)(5); or 

were committed along the offender’s line of travel in the state, regardless of the 

offender’s point of origin or destination, (H)(6). 

{¶ 147} As previously discussed, evidence was presented showing that 

Jackson and his accomplices committed six robberies between June 15 and 17, 

2009, as part of a course of criminal conduct. The robberies were part of a pattern 

and took place along a line of travel between Cuyahoga and Erie Counties. 

Testimony was also presented that properly identified the location of each of these 

offenses. Thus, venue was properly established, and no error occurred. 

{¶ 148} Based on the foregoing, we overrule proposition of law No. III. 

 
January Term, 2014 

41 

4. Shackling (proposition of law No. IV) 

{¶ 149} Jackson argues that the trial court abused its discretion by having 

him shackled without first establishing the necessity for shackles. 

a. Background 

{¶ 150} Defense counsel filed a pretrial motion to allow Jackson to appear 

at trial without restraints, and the trial court granted that motion. Nevertheless, 

Jackson’s legs remained shackled throughout the trial. 

{¶ 151} When the trial began, defense counsel complained about 

Jackson’s being handcuffed in court, because he was having a difficult time 

writing and maneuvering. In response, the trial court stated: 

 THE COURT: Deputy Evelyn, simply remove the 

handcuffs so that Mr. Jackson can write with his pencil, okay? 

 DEPUTY SHERIFF: Your Honor, I’m required to have 

some restraint on him. Could you put two cuffs on him or a pair of 

shackles? 

 THE COURT: By shackles you are referring to the legs? 

 DEPUTY SHERIFF: Yes, you Honor. 

 THE COURT: Well, you mentioned using two handcuffs 

that is because that gives — 

 DEPUTY SHERIFF. A wider spread. 

 THE COURT: More mobility with his hands; is that what 

you’re saying? 

 DEPUTY SHERIFF: It will, but it’s not our prescribed 

way, really. 

 THE COURT: Well, we need to do something to facilitate 

the fact that he’s going to have difficulty writing and taking notes 

and communicating in writing with his counsel. 
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42 

 So, Mr. Mullen (defense counsel), could you confer with 

your client of the various methods that ha[ve] been mentioned 

[and] just decide how you would find it most comfortable? 

 But I would like Mr. Jackson to be comfortable and have 

the ability to write, take notes and communicate in writing with his 

counsel. 

 MR. MULLEN: If leg irons are available, that would be 

preferable, your Honor, and he’s still secure. 

 THE COURT: So under that mechanism there will be no 

handcuffs. There would only be ankle cuffs; is that right? 

 DEPUTY SHERIFF: Yes, your Honor. 

 THE COURT: Is that what you prefer, Mr. Jackson? 

 THE DEFENDANT: Yes, Ma’am. 

 THE COURT: Okay. That is what we’ll do. Thank you. 

{¶ 152} The trial court later noted that Jackson’s handcuffs were removed 

and he was placed in ankle shackles. The trial court also filed a journal entry 

stating that the “sheriff [is] to remove handcuffs from defendant and place shackles 

on defendant’s ankles while in trial in courtroom 16-B.” 

b. Analysis 

{¶ 153} In a jury trial, a criminal defendant has the right to remain free of 

physical restraints that are visible to the jurors. Deck v. Missouri, 544 U.S. 622, 

628-629, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005) That right may be overcome in 

a particular instance by the need for physical security, escape prevention, or 

courtroom decorum. Id.; State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 

N.E.2d 26, ¶ 79. The decision to impose such restraints is left to the trial court’s 

sound discretion. State v. Richey, 64 Ohio St.3d 353, 358, 595 N.E.2d 915 (1992). 

In Franklin, this court stated that while “the preferred and encouraged practice 
January Term, 2014 

43 

prior to handcuffing a defendant during any phase of trial is to hold a hearing on 

the matter, we do not find this to be an absolute rule.” Franklin at ¶ 82. 

{¶ 154} First, Jackson argues that the trial court should have conducted a 

hearing and made findings to justify the use of shackles. However, Jackson’s trial 

occurred before a three-judge panel rather than a jury, meaning that any physical 

restraints were not visible to a jury. Unlike in a jury trial, it is presumed that the 

members of a three-judge panel are able to disregard the defendant’s appearing 

before them in shackles. See State v. Post, 32 Ohio St.3d 380, 384, 513 N.E.2d 

754 (1987) (it is a usual presumption that in a bench trial, the court considers only 

the relevant, material, and competent evidence in arriving at its judgment unless it 

affirmatively appears to the contrary). No prejudice occurred when Jackson 

appeared in shackles before the three-judge panel. See also Fautenberry v. 

Mitchell, 515 F.3d 614, 642-643 (6th Cir.2008) (Ohio capital defendant not 

prejudiced by appearing in front of a judge in shackles). 

{¶ 155} Nevertheless, Jackson argues that the presiding judge’s order 

placing him in restraints showed her inability to presume Jackson’s innocence. 

But his position is not supported in the record. Thus, it is rejected. 

{¶ 156} Second, he argues that he was prejudiced because his restraints 

were visible to the witnesses. This argument seems to imply that one or more of 

the witnesses might have changed their testimony after they saw the defendant in 

shackles. Jackson mentions that Jennifer Testa, the bartender at the Brickhouse 

Bar, identified him in court by stating, “He has a goatee. He’s sitting right there. 

He has cuffs on his ankles.” However, Jackson does not allege that Testa 

misidentified him because he was wearing shackles. Jackson also does not specify 

other witnesses whose testimony may have been affected by his shackling. This 

argument is also rejected. 

{¶ 157} Third, Jackson argues that the shackles infringed upon his right to 

effective assistance of counsel. But the trial court ordered the removal of 
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44 

Jackson’s handcuffs and used ankle shackles instead, and by doing so, the court 

ensured that Jackson’s ability to take notes and consult with counsel was not 

hindered. See Deck, 544 U.S. at 630, 125 S.Ct. 2007, 161 L.Ed.2d 953 (shackling 

can interfere with the accused’s ability to communicate with his lawyer). We also 

reject this argument. 

{¶ 158} As a final matter, Jackson argues that the trial court improperly 

deferred to security personnel in ordering him shackled. “The trial court must 

exercise its own discretion and not leave the issue up to security personnel.” State 

v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 104. The 

deputy sheriff informed the court that handcuffs were the “prescribed way” for 

restraining the accused. But the trial court ordered handcuffs removed and had 

Jackson placed in ankle shackles. Thus, the trial court did not leave the decision 

on the mode of restraints to security personnel. 

{¶ 159} Based on the foregoing, proposition of law No. IV is overruled. 

5. Failure to advise Jackson of his Fifth Amendment 

rights before testifying (proposition of law No. V) 

{¶ 160} Jackson argues that the trial court’s failure to advise him of his 

Fifth Amendment rights before he testified resulted in his invalid waiver of those 

rights. 

{¶ 161} Jackson testified in his own behalf during the guilt phase of the 

proceedings. The trial court did not advise Jackson of his Fifth Amendment rights 

before he testified. 

{¶ 162} In State v. Bey, 85 Ohio St.3d 487, 499, 709 N.E.2d 484 (1999), 

we held that a trial court did not have to conduct an inquiry to determine whether 

a defendant knowingly and intelligently waived his right to testify in his own 

behalf. See also United States v. Webber, 208 F.3d 545, 551 (6th Cir.2000) 

(“Barring any statements or actions from the defendant indicating disagreement 

with counsel or the desire to testify, the trial court is neither required to sua sponte 
January Term, 2014 

45 

address a silent defendant and inquire whether the defendant knowingly and 

intentionally waived the right to testify, nor ensure that the defendant has waived 

the right on the record”). 

{¶ 163} Bey stated that an inquiry was not only unnecessary but might be 

harmful because it “ ‘places the judge between the lawyer and his client and can 

produce confusion as well as delay.’ ” Id. at 499, quoting Underwood v. Clark, 

939 F.2d 473, 476 (7th Cir.1991). Bey warned that such questioning could “lead 

into the judge’s evaluation of the wisdom of the defendant’s decision, the 

substance of the testimony, or simply evoke a dramatic change in a previously 

carefully considered trial strategy.” Id., citing United States v. Goodwin, 770 F.2d 

631, 636 (7th Cir.1985). Bey also noted that nothing in the record suggested that 

the defendant was unaware of his right to testify or that defense counsel failed to 

advise him of that right. Id. 

{¶ 164} Here, Jackson asserts that the trial court was required to inquire 

into the voluntariness of his waiver of his right not to testify, the corollary of 

Jackson’s right to testify. Other courts have held that a trial court is not required 

to develop a record to establish that a defendant has voluntarily waived his right 

not to testify. E.g., United States v. Yono, 605 F.3d 425, 426 (6th Cir.2010); 

Brown v. Artuz, 124 F.3d 73, 79 (2d Cir.1997); United States v. Martinez, 883 

F.2d 750, 756-757 (9th Cir.1989), vacated on other grounds, 928 F.2d 1470 

(1991) (collected cases); State v. Thomas, 128 Wash.2d 553, 559, 910 P.2d 475 

(1996) (en banc). 

{¶ 165} Courts have applied a similar rationale to what was discussed in 

Bey, in holding that a trial court is not required to conduct an inquiry into the 

defendant’s decision not to testify. First, 

[i]t is primarily the responsibility of counsel, not the judge, to 

advise a defendant on whether or not to testify, and the tactical 
SUPREME COURT OF OHIO

46 

advantages and disadvantages of each choice. * * * [T]he decision 

is a matter of trial strategy between the defendant and counsel; the 

court should not interfere. There is also a danger that the judge 

will appear to encourage the defendant to invoke or to waive this 

right. This danger is of great significance because the right not to 

testify counterpoises the right to testify, and the exercise of one is 

the waiver of the other. 

(Citations omitted.) Martinez at 757. 

{¶ 166} Jackson cites Boykin v. Alabama, 395 U.S. 238, 89 S.Ct. 1709, 23 

L.Ed.2d 274 (1969), in arguing that the trial court was required to make a record 

to affirmatively establish that he voluntarily waived his Fifth Amendment right 

not to testify. In Boykin, the Supreme Court held that it was plain error to accept 

a guilty plea without an affirmative showing that it was intelligent and voluntary. 

Id. at 243. The court held that a defendant must be advised of his or her 

constitutional rights, including the privilege against compulsory selfincrimination, the right to a trial by jury, and the right to confront one’s accusers 

before a waiver of those rights is valid. Id. 

{¶ 167} In Webber, 208 F.3d at 551-552, the Sixth Circuit addressed 

similar arguments in rejecting the claim that the trial court must conduct an 

inquiry to ensure that the defendant has intelligently and voluntarily waived his 

right to testify: 

While we recognize that trial courts are required to inquire directly 

of the defendant in regard to whether the defendant is knowingly 

and intentionally entering a plea of guilty, waiving a jury trial, or 

foregoing the assistance of counsel, * * * we are convinced that the 

right to testify ‘qualitatively differs’ from those rights in that a sua 
January Term, 2014 

47 

sponte inquiry from the trial judge regarding the defendant’s 

choice to testify might impede on an appropriate defense strategy, 

might lead the defendant to believe that defense counsel has been 

insufficient, or might inappropriately influence the defendant to 

waive the Fifth Amendment right not to testify. 

(Emphasis sic.) 

{¶ 168} The same rationale applies here. Thus, we reject Jackson’s claim 

that Boykin required the trial court to conduct an inquiry before he testified. 

{¶ 169} Jackson also alleges, without citing any authority, that the trial 

court’s failure to conduct an inquiry constituted structural error. However, such 

an inquiry was not required. Thus, we reject his structural error argument. 

{¶ 170} Finally, even if the court should have made inquiry, Jackson has 

not presented any evidence to suggest that his decision to testify was made 

unknowingly or involuntarily. 

{¶ 171} Based on the foregoing, we overrule proposition of law No. V. 

6. Ineffective assistance of counsel (proposition of law No. VI) 

{¶ 172} Jackson argues that his counsel provided ineffective assistance by 

failing to properly raise and present each of the issues set forth in proposition of 

law Nos. I through V. 

{¶ 173} Reversal of a conviction for ineffective assistance requires that the 

defendant show, first, that counsel’s performance was deficient and, second, that 

the deficient performance prejudiced the defense so as to deprive the defendant of 

a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 

L.Ed.2d 674 (1984). Accord State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 

(1989), paragraph two of the syllabus. 

{¶ 174} First, Jackson argues that his counsel were ineffective by failing 

to participate in the Atkins hearing conducted by the trial court. Jackson refers to 
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48 

his argument in proposition of law No. I, in which he claimed that counsel failed 

to adequately investigate his adaptive functioning, the second part of the Atkins 

test. 

{¶ 175} In evaluating the performance of counsel, 

strategic choices made after thorough investigation of law and 

facts relevant to plausible options are virtually unchallengeable; 

and strategic choices made after less than complete investigation 

are reasonable precisely to the extent that reasonable professional 

judgments support the limitations on investigation. 

Strickland at 690-691. 

{¶ 176} The record shows that counsel’s decision regarding the Atkins

inquiry did not result from any lack of investigation. Defense counsel informed 

the court that they had consulted Dr. Fabian about the possibility of raising an 

Atkins claim and concluded that such a claim could not be supported. Dr. Fabian 

confirmed that advice during his testimony. 

{¶ 177} Dr. Fabian had ample qualifications and experience to determine 

whether Jackson met the Atkins test for mental retardation. Dr. Fabian referred to 

the Atkins test during his testimony. Moreover, Dr. Fabian has testified about 

mental retardation in numerous capital cases. See State v. White, 118 Ohio St.3d 

12, 2008-Ohio-1623, 885 N.E.2d 905, ¶ 10; State v. Lawson, 12th Dist. Clermont 

No. CA2007-12-116, 2008-Ohio-6066, ¶ 15; State v. Stallings, 9th Dist. Summit 

No. 21969, 2004-Ohio-4571, ¶ 12-13. Thus, Jackson has failed to establish that 

his counsel were deficient in relying on Dr. Fabian’s opinion that he was not 

mentally retarded. 

{¶ 178} Jackson argues that a full-scale adaptive-functioning test along 

with his full-scale IQ of 75 might have established that he was mentally retarded. 
January Term, 2014 

49 

However, Jackson provides nothing to support this claim. Moreover, Dr. Aronoff 

testified that Jackson did not meet the first part of the Atkins test. 

{¶ 179} Jackson also cites United States v. Hardy, 762 F.Supp.2d 849 

(E.D.La.2010), in arguing that defense counsel were required to investigate his 

adaptive functioning before deciding not to raise an Atkins claim. In Hardy, 

expert testimony established that the defendant met all three parts of the Atkins

test and was mentally retarded. Id. at 878-879, 896, and 904. Unlike in Hardy, 

Dr. Fabian and Dr. Aronoff testified that Jackson did not possess significantly 

subaverage intellectual functioning, the first part of the Atkins test. Thus, any 

failure to conduct an adaptive-functioning test made no difference. 

{¶ 180} In conclusion, we reject this ineffectiveness claim because 

defense counsel obtained expert advice before deciding not to raise an Atkins

claim. State v. Elmore, 5th Dist. Licking No. 2005-CA-32, 2005-Ohio-5940, 

¶ 50. 

{¶ 181} Second, Jackson argues that his counsel were ineffective by 

failing to object to continuing with the jury-waiver inquiry after counsel described 

Jackson as delusional. 

{¶ 182} Jackson told the court that he had a headache during the jurywaiver inquiry. But he explained that he was “probably dehydrated” because he 

had not been drinking any liquids. Jackson was given some water. He then 

assured the court that he was all right and wanted to continue with the inquiry. 

After Jackson complained about headaches again, defense counsel interjected, 

“He’s a little delusional. That is why we got the water. He ate, but I don’t think 

he had any water.” 

{¶ 183} As discussed in relation to proposition of law No. II, defense 

counsel’s statement in its entirety shows that counsel was talking about Jackson’s 

dehydration and not a psychological problem. Jackson had been evaluated and 

found competent to stand trial. Moreover, there is no evidence indicating that he 
SUPREME COURT OF OHIO

50 

suffered from any type of debilitating mental disorder that might have affected his 

ability to waive a jury trial. See State v. Leonard, 8th Dist. Cuyahoga No. 86310, 

2006-Ohio-1943, ¶ 32 (defendant’s headaches were not a mental illness so 

debilitating that they affected his ability to enter a valid guilty plea). Under these 

circumstances, Jackson fails to establish that his counsel were ineffective by 

failing to object to continuing the waiver inquiry. 

{¶ 184} Third, Jackson argues that his counsel were ineffective by failing 

to challenge the court’s jurisdiction over offenses occurring outside Cuyahoga 

County. As discussed in relation to proposition of law No. III, no constitutional 

or statutory provisions prohibited the Cuyahoga County Grand Jury from 

indicting Jackson for offenses that occurred in Erie and Lorain Counties, because 

these offenses were part of a course of criminal conduct in which some of the 

conduct occurred in Cuyahoga County. Thus, we reject this ineffectiveness claim. 

{¶ 185} Fourth, Jackson argues that trial counsel were ineffective by 

failing to object to his shackling. The record shows that defense counsel filed a 

pretrial motion to allow Jackson to appear at trial without restraints. But defense 

counsel did not renew that motion after Jackson waived his right to a jury trial and 

elected to be tried before a three-judge panel. 

{¶ 186} Unlike a jury trial, it is presumed that the members of a threejudge panel are able to disregard the defendant’s appearing before them in 

shackles. See Post, 32 Ohio St.3d at 384, 513 N.E.2d 754; Fautenberry, 515 F.3d 

at 642-643. Thus, we reject this ineffectiveness claim. 

{¶ 187} Finally, Jackson argues that his counsel were deficient by failing 

to ensure that he understood his Fifth Amendment rights before testifying. 

However, as explained in relation to proposition of law No. V, the trial court was 

not required to advise Jackson of his Fifth Amendment right not to testify before 

he took the stand. See Yono, 605 F.3d at 426. Thus, we also reject this 

ineffectiveness claim. 
January Term, 2014 

51 

{¶ 188} Based on the foregoing, we overrule proposition of law No. VI. 

B. Penalty-phase issues 

1. Prosecutorial misconduct (proposition of law No. VII) 

{¶ 189} Jackson argues that prosecutorial misconduct occurred during 

various points of his penalty-phase closing argument. However, Jackson failed to 

object during argument and thus waived error unless the remarks denied him a 

fair trial. See State v. Wade, 53 Ohio St.2d 182, 373 N.E.2d 1244 (1978), 

paragraph one of the syllabus. 

{¶ 190} The test for prosecutorial misconduct is whether the remarks were 

improper and, if so, whether they prejudicially affected the accused’s substantial 

rights. State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). The 

touchstone of the analysis “is the fairness of the trial, not the culpability of the 

prosecutor.” Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 

(1982). 

{¶ 191} First, Jackson argues that the prosecutor’s closing argument 

improperly discussed Jackson’s role in committing the robberies outside 

Cuyahoga County. 

{¶ 192} During his penalty-phase opening statement, defense counsel 

asserted that “alcohol, PCP, drugs, drugs, drugs, drugs * * * are certainly a strong 

mitigating factor.” At the mitigation hearing, Dr. Fabian testified that Jackson’s 

“low intelligence” and “his substance dependence and intoxicated state at the time 

of the offenses could be considered mitigating.” In his unsworn statement, 

Jackson stated, “I know it was stupid * * * and I have to come up here and say it’s 

drugs and all of that but it was just—I let evil get ahold of me, * * * basically I let 

that demon get inside of me.” 

{¶ 193} During his penalty-phase closing argument, the prosecutor 

rebutted defense claims that Jackson’s low intelligence, substance dependence, 

and intoxicated state at the time of the murder were mitigating, by contrasting his 
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behavior at Howard Johnson’s and Walgreens with his conduct at the Soap Opera 

Laundry: 

 Mr. Jackson on June 18th 2009 has done a few things that 

demonstrate how devious he is. He does a few things to 

demonstrate that he’s not under the influence when he does the 

Soap Opera Laundry murder, robbery and murder. 

 Recall what he’s wearing on June 18th. He has changed his 

appearance from the prior robberies. He now looks completely 

different. 

 Look at and recall what he looks like in the Walgreens 

robbery and in the Howard Johnson’s robbery, and I only point 

those out just as a matter of comparison, and look at what he looks 

like in the Soap Opera Laundry robbery. 

 He has a hat pulled over his head, big jacket on, book bag 

slung over his shoulder. Totally different appearance. 

 If you were to look at those two people in those two 

surveillance tapes you wouldn’t be able to say yes, that is Jeremiah 

Jackson in Walgreen’s and yes, a day later, that is Jeremiah 

Jackson in the Soap Opera Laundry. 

 You wouldn’t be able to between Howard Johnson’s and 

Walgreens. You wouldn’t be able to say with the Super Wash. 

But he’s changed his appearance. 

 That takes some thought. That takes some planning. That 

shows you his devious nature. 

(Emphasis added.) 
January Term, 2014 

53 

{¶ 194} The prosecutor then discussed the methodical nature of Jackson’s 

actions at the Soap Opera Laundry and highlighted the difference with the earlier 

robberies: 

 Those are steps that are planned out, are thought out, and 

cut against any sort of thought that he’s high on PCP and he does 

not know what he’s doing. 

 He’s methodical about casing this place. He changes his 

appearance, changes his car and changes his MO with regards to 

how he’s going to rob the Soap Opera Laundry and how it will be 

different than his robberies of the other places. 

{¶ 195} The prosecutor then rebutted Dr. Fabian’s conclusion that 

Jackson’s cognitive impairment and borderline range of intellectual functioning 

were mitigating factors: 

[N]othing that we heard in testimony, in evidence, again, with the 

planning that would suggest that he’s borderline intellectually 

functioning and the holding up in Sandusky, the coming back and 

forth, the planning with regard to these other robberies all show 

good planning, good leadership in terms of execution of these 

plans. 

{¶ 196} Thereafter, the prosecutor addressed defense claims that the 

aggravating circumstances are mitigated by Jackson’s substance abuse: 

 Again, if you look at the actual crimes themselves, how 

they were committed and the planning that goes into it, the calling 
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54 

of Katrina over to the hotel, the going in, the robbing, the duct 

taping, all those, slice against him being high and out of his mind 

because they’re so precise and definite in their planning and the 

carrying out of their plans to rob these places. 

 Super Wash we find out is actually an inside job, almost, 

with regards to Katrina. That shows that during this period of time 

we were led to believe that he’s high, out of his mind, and that his 

drug abuse led to all this. 

 There is definite planning and definitely cuts against that at 

the time of the offense that he was demented, on any of these 

substances, to the point where they affected him and did not—and 

made him not know what right from wrong is. 

{¶ 197} “Prosecutors can urge the merits of their cause and legitimately 

argue that defense mitigation evidence is worthy of little or no weight.” State v. 

Wilson, 74 Ohio St.3d 381, 399, 659 N.E.2d 292 (1996). Moreover, “counsel for 

both parties are afforded wide latitude during closing argument.” State v. Brown, 

38 Ohio St.3d 305, 317, 528 N.E.2d 523 (1988). 

{¶ 198} Jackson argues that the prosecutor’s argument about the other 

robberies was an improper discussion about nonstatutory aggravating factors. 

However, the prosecutor did not characterize any of the facts of the other 

robberies as aggravating circumstances. The context of the prosecutor’s remarks 

show that his comments about Jackson’s leadership and behavior in committing 

the other robberies were used to challenge Jackson’s claim that substance abuse 

and borderline intellectual functioning were mitigating factors. See Ketterer, 111 

Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, at ¶ 168. The prosecutor’s 

remarks represented fair comment, and no plain error occurred. 
January Term, 2014 

55 

{¶ 199} Furthermore, the three-judge panel is presumed to have 

“ ‘considered only the relevant, material, and competent evidence in arriving at its 

judgment unless it affirmatively appears to the contrary.’ ” Post, 32 Ohio St.3d at 

384, 513 N.E.2d 754, quoting State v. White, 15 Ohio St.2d 146, 151, 239 N.E.2d 

65 (1968). Thus, even assuming that the prosecutor’s comments about the other 

robberies were improper, we hold that plain error did not occur. 

{¶ 200} Second, Jackson asserts that the state improperly argued the 

uncharged aggravating circumstance of killing a witness. 

{¶ 201} During the penalty-phase closing arguments, the prosecutor 

discussed Jackson’s attempted murder of Christy Diaz as part of the course-ofconduct specification and had the following exchange with the trial court: 

 And when we talk about course of conduct, this course of 

conduct is very—the angle on this course of conduct has to be not 

only that he killed somebody and that he tried to kill a second 

person in this case, but he killed somebody and he tried to kill a 

witness. He tried to kill a witness to the first killing. 

 And the specification’s included in our Ohio revised code 

for killing a witness. The only reason that that wasn’t presented is 

because she, by the grace of God, ducked and survived. 

 So that course of conduct isn’t just he killed two people in 

the course of a robbery or he killed two people in the course of 

whatever, he killed one person and tried to kill the other person 

that was a witness to his crime. 

 THE COURT: Let’s just be perfectly clear. You’re not by 

saying that, are you, arguing an additional aggravating 

circumstance out of R.C. 2929.04(A) which this gentleman wasn’t 

indicted on, hasn’t be[en] proven? 
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56 

 MR. AWADALLAH (the prosecutor): Absolutely not, 

your Honor. 

 THE COURT: Okay. 

 MR. AWADALLAH: I’m merely pointing out the angle 

and the importance of this course of conduct in that a witness 

strikes at the core of what we do here, the core of the justice 

system, when we try to kill witnesses to crimes. 

 The specification itself hadn’t resulted in the death of the 

witness. That is why he wasn’t charged. 

 I’m only merely mentioning it to highlight why this course 

of conduct and the action within this course of conduct merit and 

will outweigh on it’s [sic] own any mitigating factors presented 

during these two phases. 

 That on it’s [sic] own mitigates or outweighs any 

mitigation. 

{¶ 202} As we explained in State v. Sheppard, 84 Ohio St.3d 230, 703 

N.E.2d 286 (1998), although 

prosecutors cannot argue that the nature and circumstances of an 

offense are aggravating circumstances, the facts and circumstances 

of the offense must be examined to determine whether they are 

mitigating. R.C. 2929.04(B). Thus, a prosecutor may legitimately 

refer to the nature and circumstances of the offense, both to refute 

any suggestion that they are mitigating and to explain why the 

specified aggravating circumstance[s] outweigh mitigating factors. 

Id. at 238. 
January Term, 2014 

57 

{¶ 203} The prosecutor’s argument that Jackson attempted to murder Diaz 

to eliminate her as a witness addressed Jackson’s motive for trying to kill her. See 

State v. Gumm, 73 Ohio St.3d 413, 422-423, 653 N.E.2d 253 (1995) (prosecutor 

may comment on defendant’s motive in addressing the nature and circumstances 

of the statutory aggravating circumstance of felony-murder as set forth in R.C. 

2929.04(A)(7)). 

{¶ 204} Under questioning, the prosecutor assured the court that he was 

not trying to argue another aggravating circumstance. That colloquy referred to 

R.C. 2929.04(A)(8), the witness-murder specification, which includes aggravated 

murders committed to “prevent the victim’s testimony in any criminal 

proceeding.” 

{¶ 205} Nevertheless, the prosecutor did more than just identify Jackson’s 

motive. He speculated that Jackson would have been charged with the (A)(8) 

specification if he had killed Diaz. The prosecutor also stressed that Jackson’s 

“action within this course of conduct merit and will outweigh on its own any 

mitigating factors presented during these two phases.” This argument shifted 

focus from the course-of-conduct specification, which was charged and proven, to 

factors that were not charged. 

{¶ 206} In State v. Baston, 85 Ohio St.3d 418, 709 N.E.2d 128 (1999), we 

addressed similar allegations of prosecutorial misconduct. In that case, the 

defendant was charged with a R.C. 2929.04(A)(7) aggravated-robbery 

specification. During penalty-phase closing arguments, the prosecutor said, 

“[A]nd what we have to look at are the aggravating factors that were committed in 

this case * * *. This was not—this was not any kind of an attempt to do anything 

but eliminate a witness.” Id. at 426. Baston held that the prosecutor’s argument 

was improper. As in the present case, the defendant was not charged with killing 

a witness. Thus, Baston stated, “The prosecutor should have focused on the 
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statutory factor, which was charged and proven in the trial phase, and not on 

factors that were not charged.” Id. at 427. 

{¶ 207} The prosecutor’s argument in this case was also improper. 

Nevertheless, the three-judge panel was not misled by the prosecutor’s argument 

and understood that they were not also considering the witness-murder 

specification in imposing sentence. Moreover, there is no showing that the panel 

considered anything other than the relevant, material, and competent evidence in 

arriving at its decision. Post, 32 Ohio St.3d at 384, 513 N.E.2d 754. Thus, no 

plain error occurred. 

{¶ 208} As a final matter, Jackson claims that the prosecutor improperly 

commented upon Jackson’s behavior in prison, because Jackson never presented 

his prison behavior as a mitigating factor. Yet nothing in the record shows that 

the prosecutor commented upon Jackson’s behavior in prison. Thus, we also 

reject this claim. 

{¶ 209} Based on the foregoing, we overrule proposition of law No. VII. 

2. Ineffective assistance of counsel 

(proposition of law No. VIII) 

{¶ 210} Jackson argues that his counsel were ineffective by failing to 

adequately prepare mitigation during the penalty phase of the trial and by failing 

to object to prosecutorial misconduct during the state’s closing argument. 

{¶ 211} First, Jackson argues that his counsel were not prepared to present 

mitigating evidence. Jackson states that his counsel were inexperienced in trying 

death-penalty cases. Jackson also mentions that defense counsel informed the 

court during a pretrial hearing that they were “overwhelmed with discovery,” and 

that co-counsel mentioned that they were in the “embryonic stages of the 

investigation” only two months before trial began. 

{¶ 212} An attorney’s failure to reasonably investigate a defendant’s 

background and present mitigating evidence to the jury at sentencing can 
January Term, 2014 

59 

constitute ineffective assistance of counsel. Wiggins v. Smith, 539 U.S. 510, 521-

522, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003). “Defense counsel has a duty to 

investigate the circumstances of his client’s case and explore all matters relevant 

to the merits of the case and the penalty, including the defendant’s background, 

education, employment record, mental and emotional stability, and family 

relationships.” Goodwin v. Johnson, 632 F.3d 301, 318 (6th Cir.2011). However, 

Jackson has the burden of demonstrating that his counsel rendered ineffective 

assistance by failing to conduct an adequate investigation. Hunter, 131 Ohio 

St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, at ¶ 104, citing Strickland, 466 U.S. 

at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674. 

{¶ 213} On January 19, 2010, defense counsel filed a motion requesting a 

continuance of the trial date. During a pretrial hearing on January 25, 2010, 

defense counsel mentioned that the defense was “overwhelmed with discovery” as 

one of several reasons for requesting a continuance. Edward Mullen, the lead 

defense counsel, added, “[M]y co-counsel, George George, with the Public 

Defender’s Office, this is the first time he would be going to trial on a death 

penalty case. This is my first lead counsel assignment.” George also indicated 

that the public defender’s office had only been involved with the case since 

September 2009. 

{¶ 214} The trial court also asked about the progress of the defense’s 

investigator. George replied, “He’s been working on it. I don’t know to the 

extent. We’re very in the embryonic stages of the investigation.” After the trial 

court expressed concern about that comment, Mullen stated, “That’s a phrase that 

George George uses, I don’t know that that is fair.” Thereafter, the court set a 

trial date for March 22, 2010. 

{¶ 215} As an initial matter, defense counsel’s lack of experience in 

serving as lead counsel in a death-penalty case does not establish ineffective 

assistance. Rather, trial counsel’s performance is reviewed under the two-
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pronged Strickland analysis. See Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 

960 N.E.2d 955, at ¶ 39-40; People v. Williams, 56 Cal.4th 630, 691-692, 156 

Cal.Rptr.3d 214, 299 P.3d 1185 (2013) (although defense counsel never handled a 

capital case that included a penalty phase, this does not in and of itself establish 

deficient performance); Wisehart v. State, 693 N.E.2d 23, 43 (Ind.1998) 

(inexperience per se not sufficient to establish ineffective assistance of counsel). 

{¶ 216} The record shows that defense counsel employed a clinical 

psychologist, Dr. Fabian, who was a mitigation expert, an investigator secured 

through the public defender’s office, and a social worker who was affiliated with 

the public defender’s office. Dr. Fabian interviewed Jackson on numerous 

occasions and conducted extensive testing in evaluating him. He reviewed 

Jackson’s school records, prison records, employment history, medical records, 

and the forensic psychological reports completed by the Court Psychiatric Clinic. 

Dr. Fabian also interviewed Jackson’s parents and other family members. Thus, 

the record shows that the defense had thoroughly prepared for the penalty phase. 

{¶ 217} Defense counsel’s comment that they were “overwhelmed with 

discovery” was made in the context of a defense-requested continuance. This 

comment was made approximately two months before trial, and nothing shows 

that counsel were unable to review discovery before trial began. Similarly, 

assistant defense counsel’s comment about the “embryonic stages” of the 

investigation, and his comment that the public defender’s office had started to 

work on the case only in September 2009 does not show that counsel were 

unprepared when trial started. This court “cannot infer a defense failure to 

investigate from a silent record.” State v. Were, 118 Ohio St.3d 448, 2008-Ohio2762, 890 N.E.2d 263, ¶ 244. 

{¶ 218} Second, Jackson argues that the panel’s sentencing opinion shows 

that defense counsel were unprepared. 
January Term, 2014 

61 

{¶ 219} Jackson asserts that the sentencing opinion indicates that defense 

counsel should have cast his criminal record in a more favorable light for 

mitigation purposes. Jackson mentions the panel’s comment, “There was no 

evidence that Defendant’s prior involvement in the criminal justice system 

prevented him from rejoining or otherwise adjusting to family or community life.” 

{¶ 220} Defense counsel were fully aware of Jackson’s criminal history. 

Defense counsel informed the court that they had reviewed the files from 

Jackson’s prior criminal cases. Moreover, Dr. Fabian’s report summarized 

Jackson’s criminal record and mentioned that he had committed numerous 

disciplinary infractions while in prison. Because it is speculative whether counsel 

could have presented Jackson’s criminal history in the manner that Jackson 

suggests, defense counsel were not ineffective by failing to do so. See State v. 

Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, ¶ 155. 

{¶ 221} Jackson mentions the following statement from the sentencing 

opinion: “Dr. Fabian mentioned as a possibility—but could not conclude as a 

probability—that Defendant suffered from [a] substance abuse-induced psychosis 

that would explain or mitigate his conduct that date.” Jackson appears to be 

arguing that counsel were ineffective by failing to prepare Dr. Fabian as a witness 

and eliciting testimony from him that there was a probability, rather than a 

possibility, that he suffered from a substance-abuse psychosis at the time of the 

offenses. 

{¶ 222} During mitigation, Dr. Fabian testified that Jackson “admitted to 

using quite a bit of PCP prior to the offense or the date of in addition to alcohol 

and cocaine or at least marijuana.” Dr. Fabian added, “[T]here is a possibility that 

there was some evidence of intoxication and a substance-induced psychosis due to 

the PCP that he had used.” (Emphasis added.) It is speculative whether Dr. 

Fabian would have testified differently had he been prepared or questioned 

differently. See State v. Braden, 98 Ohio St.3d 354, 2003-Ohio-1325, 785 N.E.2d 
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62 

439, ¶ 121 (counsel not ineffective for failing to show that the defendant’s 

paranoid schizophrenia qualified as an R.C. 2929.04(B)(3) mitigating factor). 

Thus, this ineffectiveness claim is also rejected. 

{¶ 223} Third, Jackson argues that defense counsel failed to adequately 

prepare Dr. Fabian so he would address in his testimony how Jackson’s substance 

abuse, low intelligence, and child abuse affected his actions on the date of the 

murder. Jackson asserts that defense counsel’s failure to establish a nexus 

between these factors and the offenses allowed the three-judge panel to assign less 

mitigating weight to them. 

{¶ 224} Dr. Fabian’s testimony and written report refute this claim. Dr. 

Fabian stated that Jackson had a significant history of alcohol and drug use 

leading to substance dependence. Dr. Fabian outlined Jackson’s reported 

substance abuse: 

[He was] using an ounce of PCP per day, a quarter-ounce to a halfounce of marijuana per day. That’s a lot of marijuana, a lot of 

PCP. 

 He reported using cocaine every day during the last few 

years. He also reported drinking alcohol quite significantly, fifths 

of alcohol or 12 packs, drinking to get intoxicated, and usually to 

get high [on] the substances that he was using. 

Dr. Fabian also mentioned that Jackson reported “smoking marijuana and PCP the 

day of the instant offense” and that Jackson reported using alcohol and cocaine 

prior to the offense. 

{¶ 225} Dr. Fabian testified about the link between substance abuse and 

murder, stating, “there’s been some research discussing * * * the likelihood of 

there being alcohol or drugs involved in homicide cases and the numbers are quite 
January Term, 2014 

63 

high. Perhaps even up to a third or 50 percent of homicide cases there is some 

type of substance abuse involved by the perpetrator.” In addition, Dr. Fabian 

testified, “Individuals that are under the intoxication of PCP—well, Jeremiah 

called himself or referred to himself as a werewolf. So they can hallucinate, they 

can have faulty paranoid thinking to the threshold of a delusion, a fixed false 

bizarre/nonbizarre belief.” As previously discussed, Dr. Fabian also testified that 

“there is a possibility that there was some evidence of intoxication and a 

substance-induced psychosis due to the PCP that he had used.” 

{¶ 226} Jackson fails to explain what other testimony Dr. Fabian should 

have presented. Dr. Fabian presented information about Jackson’s reported 

substance abuse on the date of the offense and discussed the possible link between 

that use and the offenses. It is speculative whether Dr. Fabian could have 

presented additional evidence establishing a nexus between Jackson’s substance 

abuse and the offenses. Thus, Jackson has failed to establish that counsel were 

deficient by failing to elicit more testimony. See Foust, 105 Ohio St.3d 137, 

2004-Ohio-7006, 823 N.E.2d 836, at ¶ 155. 

{¶ 227} As to low intelligence, Dr. Fabian reported that Jackson suffers 

from a cognitive disorder and functions in the borderline range of intelligence. 

Dr. Fabian supported that conclusion with evidence of Jackson’s poor grades in 

school and intelligence-test results showing that he had a 75 IQ. 

{¶ 228} During his testimony, Dr. Fabian discussed the possible link 

between Jackson’s low intelligence and his drug use: “Individuals with cognitive 

impairment especially residing in areas such as Jeremiah’s, low socioeconomic 

areas with histories of drug trafficking and drug use are more prone to be using 

substances such as that.” Dr. Fabian also testified that Jackson’s low intellectual 

functioning is one of several factors that “would be related empirically to some 

degree in this case to violence.” He stated that such factors are cumulative and 

additive in nature: 
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So the fact that this individual has low intellectual functioning, 

poor verbal skills, substance abuse and dependence, was 

potentially intoxicated at the time of the offense, unemployed 

experienced relationship problems, and had access to weapons and 

substances * * * I think those would act cumulatively rather than 

just in isolation. 

{¶ 229} Jackson fails to explain what other testimony Dr. Fabian should 

have provided linking his low intelligence with the offenses. Dr. Fabian 

explained how Jackson’s low intelligence may have contributed to his offenses. 

Because it is speculative whether Dr. Fabian could have provided further 

mitigating testimony about Jackson’s low intelligence, we reject this 

ineffectiveness claim. 

{¶ 230} As to child abuse, Dr. Fabian stated that Jackson reported that he 

had been sexually abused when he was a child by two different women who 

attended his father’s church. 

{¶ 231} Trial counsel asked Dr. Fabian about the link between “problem 

behavior or drug or alcohol aggression” and a history of sexual abuse. Dr. Fabian 

responded, “There’s two caveats to this, whether it did in fact occur and some of 

the research is mixed on this issue, but I would say that assuming the abuse 

occurred he would be at a higher risk to have problematic behaviors.” 

{¶ 232} Dr. Fabian was unable to verify Jackson’s claim of child abuse. 

However, Dr. Fabian explained that assuming Jackson was abused, he was at a 

“higher risk” for “problematic behaviors.” Once again, Jackson fails to specify 

additional testimony that Dr. Fabian should have presented on this matter. Thus, 

this ineffectiveness claim lacks merit. 
January Term, 2014 

65 

{¶ 233} Fourth, Jackson argues that defense counsel were ineffective by 

failing to obtain a substance-abuse expert to establish the nexus between 

Jackson’s substance abuse and the offenses. 

{¶ 234} Dr. Fabian reported on Jackson’s long history of drug and alcohol 

abuse. Dr. Fabian testified that Jackson reported using PCP, marijuana, and 

cocaine and consuming alcohol before the offenses. He then discussed the 

possible link between Jackson’s substance abuse and the offenses. Based on the 

evidence presented, Jackson fails to establish that his counsel were deficient by 

failing to hire a substance-abuse expert to provide additional testimony. See State 

v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶ 210-211 

(substance-abuse expert not required, because a clinical and forensic psychologist 

provided testimony about defendant’s alcohol and drug abuse). 

{¶ 235} Finally, Jackson argues that his counsel were ineffective by 

failing to object to the prosecutor’s improper penalty-phase closing argument. 

Even if we assume that counsel were deficient, none of the prosecutor’s closing 

argument prejudiced him, because we presume that the three-judge panel 

considered only relevant, material, and competent evidence in arriving at its 

judgment absent a showing to the contrary. Post, 32 Ohio St.3d at 384, 513 

N.E.2d 754. Thus, this claim also lacks merit. 

{¶ 236} Based on the foregoing, we reject proposition of law No. VIII. 

3. Failure to consider mercy (proposition of law No. IX) 

{¶ 237} Jackson argues that the three-judge panel abused its discretion by 

failing to consider mercy in determining the appropriateness of the death 

sentence. 

{¶ 238} Defense counsel argued for mercy during the penalty-phase 

closing arguments. The three-judge panel stated in the sentencing opinion, “The 

defense urged the Court to show mercy in arriving at its decision. While 

Defendant is entitled to argue mercy, it is not a mitigating factor under Ohio law.” 
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{¶ 239} Mercy is not a mitigating factor under Ohio law. State v. O’Neal, 

87 Ohio St.3d 402, 416, 721 N.E.2d 73 (2000); State v. Lorraine, 66 Ohio St.3d 

414, 418, 613 N.E.2d 212 (1993) (“Mercy, like bias, prejudice, and sympathy, is 

irrelevant to the duty of the jurors”). 

{¶ 240} Jackson cites Kansas v. Marsh, 548 U.S. 163, 176, 126 S.Ct. 

2516, 165 L.Ed.2d 429 (2006), and Penry v. Lynaugh, 492 U.S. 302, 326, 109 

S.Ct. 2934, 106 L.Ed.2d 256 (1989), in arguing that the three-judge panel should 

have considered mercy. But neither case holds that a trial court must consider 

mercy as a mitigating factor in capital proceedings. Proposition of law No. IX is 

overruled. 

4. Failure to consider mitigating evidence 

(proposition of law No. X) 

{¶ 241} Jackson argues that the three-judge panel violated his 

constitutional rights by refusing to consider mitigating evidence that the defense 

had presented. 

{¶ 242} In Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 

1 (1982), the Supreme Court of the United States held, “Just as the State may not 

by statute preclude the sentencer from considering any mitigating factor, neither 

may the sentencer refuse to consider, as a matter of law, any relevant mitigating 

evidence.” (Emphasis sic.) Id. at 113-114. The sentencer in a capital case “may 

determine the weight to be given relevant mitigating evidence,” but “may not give 

it no weight by excluding such evidence from [its] consideration.” Id. at 114-115. 

{¶ 243} First, Jackson argues that the panel refused to consider evidence 

that he had endured physical and sexual abuse in his youth. Dr. Fabian reported 

that Jackson’s parents “admitted to beating and whipping Jeremiah especially 

when Jeremiah made them mad.” Jackson’s mother also related, “I told the 

teacher to beat him and put the fear into him but I never saw marks or bruises on 

him.” Dr. Fabian also testified: 
January Term, 2014 

67 

 The parents had indicated that they tried to discipline 

through the church and they endorsed physical disciplinary 

practices that were stern and consistent. Whether that is abuse 

of—one could consider some of those statements as being 

excessive or abusive, but Jeremiah claims that they were not 

abusive. 

In evaluating the evidence of physical abuse for mitigating value, Dr. Fabian 

stated, “There was questionable—you know, there was corporal punishment in the 

family. I cannot say at this time whether it’s abuse because there [were] no 

investigations although some of the quotes by the mother about some of the 

physical punishment may have been excessive.” 

{¶ 244} As to sexual abuse, Dr. Fabian reported that Jackson said he had 

been sexually abused when he was a child by two different women who attended 

his father’s church. Dr. Fabian stated that Jackson’s parents denied any 

knowledge of sexual abuse at church and were surprised when they heard this 

information. During his testimony, Dr. Fabian questioned whether the sexual 

abuse was true. In evaluating the evidence of sexual abuse for mitigating value, 

Dr. Fabian stated, “Questionable self-reported sexual abuse between the ages of 6 

and 10 by two separate perpetrators at the church.” (Emphasis added.) 

{¶ 245} In the sentencing opinion, the panel discussed the mitigating 

weight given to the evidence of physical and sexual abuse: 

 The Defense argued as mitigatory the physical abuse 

imposed as discipline on Defendant while at home with his parents 

and at his mother’s daycare and suggested possible sexual abuse 

while a child by two adult female perpetrators who had access to 
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him at church. The Court finds these matters are entitled to no 

weight. The only evidence provided is the Defendant’s own 

description of the physical abuse and sexual abuse and no credible 

evidence corroborates the evidence presented. No evidence 

suggested it was traumatizing to Defendant. No evidence 

demonstrated an adverse impact on Defendant or a connection 

between the abuse and Defendant’s conduct leading up to June 18, 

2009. 

(Emphasis added.) 

{¶ 246} The sentencing opinion shows that the panel considered the 

evidence of physical and sexual abuse as mitigating evidence but chose to give it 

no weight. See Foust, 105 Ohio St.3d 137, 2004-Ohio-7006, 823 N.E.2d 836, at 

¶ 171. Jackson contends that the panel’s failure to afford that abuse any weight 

ignored the reality that in child-abuse cases there is rarely corroborative evidence. 

But “a trial court need not accept mitigating factors at the defendant’s proposed 

valuation; their weight is for the trial court to determine.” State v. Hale, 119 Ohio 

St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 153. 

{¶ 247} Nevertheless, the panel misstated the evidence in concluding that 

Jackson’s claims were the “only evidence” of physical abuse. Jackson’s parents 

admitted “beating and whipping” him as a child. However, our independent 

review of the sentence will cure this error in the sentencing opinion. See State v. 

Ahmed, 103 Ohio St.3d 27, 2004-Ohio-4190, 813 N.E.2d 637, ¶ 113; State v. Fox, 

69 Ohio St.3d 183, 191, 631 N.E.2d 124 (1994). 

{¶ 248} Second, Jackson argues that the panel erred by giving only limited 

weight to mitigating evidence of his low intelligence. Dr. Fabian testified that 

Jackson suffered from a cognitive disorder and functions in the borderline range 
January Term, 2014 

69 

of intelligence. Dr. Fabian testified that Jackson had poor grades in school and 

had a 75 IQ. 

{¶ 249} In the sentencing opinion, the panel stated: 

 The Defendant has a lower than average intelligence. His 

intelligence test results over the years were presented and the 

subject of argument. That evidence is entitled to limited weight in 

mitigation. Defendant’s school records and evidence of the 

Defendant’s comprehension and cognitive impairments was 

entitled to consideration in mitigation. As with evaluation of his 

intelligence, this evidence was of limited weight because despite 

such impairment, Defendant’s conduct showed foresight, planning, 

cunning and studied preparation in many respects. 

{¶ 250} It is clear that the panel considered Jackson’s low intelligence and 

cognitive impairment as a mitigating factor but chose to give it limited weight. 

As stated previously, “ ‘[t]he weight, if any, given to a mitigating factor is a 

matter for the discretion of the individual decisionmaker.’ ” State v. Thomas, 97 

Ohio St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 81, quoting State v. 

Filiaggi, 86 Ohio St.3d 230, 245, 714 N.E.2d 867 (1999). Thus, the panel could 

reasonably assign whatever weight, if any, it deemed appropriate to that 

mitigating evidence. 

{¶ 251} Jackson quotes Atkins, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 

335, which held that mentally retarded defendants cannot be executed, in arguing 

that his low intelligence was entitled to more weight in mitigation. But Jackson 

was not found to be mentally retarded. Thus, we reject this argument. 
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{¶ 252} Jackson also argues that the panel’s opinion shows that it 

confused his intelligence with a mental defect pursuant to R.C. 2929.04(B)(3).3 

Here, Jackson points to the panel’s statement that “[d]espite that lower than 

average intelligence, he clearly knew right from wrong and fully appreciated the 

criminality of his conduct in committing the Aggravated Robbery and Aggravated 

Murder under the factual circumstances present here.” Nothing shows that the 

panel was confused. The panel was not applying R.C. 2929.04(B)(3). Rather, the 

panel was explaining its rationale for discounting Jackson’s low intelligence as a 

mitigating factor. 

{¶ 253} Third, Jackson argues that the panel erred by failing to mention 

whether any weight was given to his poor socioeconomic environment. Dr. 

Fabian discussed Jackson’s socioeconomic environment as a mitigating factor: 

“The socioeconomic environment that the defendant had resided in 

developmentally was a poor one at that with exposure to—access and exposure or 

witnessing substance abuse or trafficking, weapons and violence.” 

{¶ 254} In the sentencing opinion, the panel addressed this evidence: 

 Defense argues Defendant’s poor socio-economic 

environment while growing up is mitigatory. The evidence was 

scant that Defendant was raised in a poor socio-economic setting. 

To the contrary, Defendant described himself as having a family 

that never wanted for any of the basic needs of life. The evidence 

established that Defendant was raised in a rather large extended 

family and was the youngest sibling of the family. * * * The 

 

3

 The R.C. 2929.04(B)(3) mitigating factor states: “Whether, at the time of committing the 

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

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

requirements of the law.” 
January Term, 2014 

71 

family was never on public assistance and both parents worked at 

gainful employment outside of the home. * * * Additionally, the 

Court considered that the Defendant had family members that still 

loved him, faithfully attended trial and had concern for him. There 

was some evidence Defendant witnessed shootings, use of 

weapons and drug use as a child but no evidence established this 

was a pervasive factor in his youth or had influenced his attitude or 

outlook significantly when he became an adult. This evidence 

taken as a whole was not entitled to significant weight in 

mitigation in the Court’s view. 

(Emphasis added.) Thus, the sentencing opinion shows that the panel considered 

Jackson’s poor socioeconomic environment as a mitigating factor but chose not to 

give it significant weight in mitigation. 

{¶ 255} As a final matter, Jackson states that the panel mentioned that 

Jackson had the love and support of his family, but failed to assign any mitigating 

weight to this evidence. However, the sentencing opinion shows that the panel 

considered evidence that Jackson had the love and support of his family but chose 

not to give it significant weight. “ ‘The fact that an item of evidence is admissible 

under R.C. 2929.04(B)(7) does not automatically mean that it must be given any 

weight.’ ” Fox, 69 Ohio St.3d at 191, 631 N.E.2d 124, quoting State v. Steffen, 31 

Ohio St.3d 111, 509 N.E.2d 383 (1987), paragraph two of the syllabus. Thus, no 

error was committed. 

{¶ 256} Based on the foregoing, we overrule proposition of law No. X. 

 
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C. Remaining issues 

1. Cumulative error (proposition of law No. XIII) 

{¶ 257} Jackson argues that cumulative errors committed during the trial 

deprived him of a fair trial and require a reversal of his convictions and death 

sentence. 

{¶ 258} State v. DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), 

paragraph two of the syllabus, recognized the doctrine of cumulative error. Under 

this doctrine, a conviction will be reversed when the cumulative effect of errors in 

a trial deprives a defendant of a fair trial even though each of the numerous 

instances of trial court error does not individually constitute cause for reversal. 

Id. at 196-197. See also Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 

N.E.2d 865, at ¶ 222-224; State v. Garner, 74 Ohio St.3d 49, 64, 656 N.E.2d 623 

(1995). 

{¶ 259} The doctrine of cumulative error is not applicable in the present 

case. Jackson received a fair trial. Moreover, none of the errors committed in this 

case, when considered either individually or cumulatively, resulted in prejudicial 

error. As previously discussed in other propositions of law, overwhelming 

evidence was introduced that established Jackson’s guilt. Proposition of law No. 

XIII is overruled. 

2. Proportionality (proposition of law No. XII) 

{¶ 260} Jackson argues that Ohio’s proportionality review is 

unconstitutional. He contends that a meaningful proportionality review must 

include cases resulting in life imprisonment after a capital-sentencing hearing as 

well as those resulting in the imposition of the death penalty. However, we have 

consistently held that the proportionality review required by R.C. 2929.05(A) is 

satisfied by a review of cases in which the death penalty has been imposed. See 

State v. Scott, 101 Ohio St.3d 31, 2004-Ohio-10, 800 N.E.2d 1133, ¶ 51; LaMar, 

95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, at ¶ 23; Steffen, 31 Ohio 
January Term, 2014 

73 

St.3d 111, 509 N.E.2d 383, at paragraph one of the syllabus. Proposition of law 

No. XII is rejected. 

3. Constitutionality (propositions of law Nos. XI and XIV) 

{¶ 261} In proposition of law No. XI, Jackson argues that Ohio’s deathpenalty statutory scheme is unconstitutional because it has failed to narrow the 

class of offenders eligible for the death penalty. But we have repeatedly rejected 

such arguments. See, e.g., State v. Henderson, 39 Ohio St.3d 24, 28-29, 528 

N.E.2d 1237 (1988); State v. Moore, 81 Ohio St.3d 22, 39, 689 N.E.2d 1 (1998); 

Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, at ¶ 73-76. 

{¶ 262} Jackson also claims that the “obliteration of the line” between 

prior calculation and design to establish aggravated murder under R.C. 

2903.01(A) and murder under R.C. 2903.02(A) has created an unconstitutional 

“vagueness problem.” In making this argument, Jackson asserts that an 

instantaneous homicide can be classified as committed with prior calculation and 

design. 

{¶ 263} In Tuilaepa v. California, 512 U.S. 967, 972, 114 S.Ct. 2630, 129 

L.Ed.2d 750 (1994), the Supreme Court stated: 

As we have explained, the aggravating circumstance must meet 

two requirements. First, the circumstance may not apply to every 

defendant convicted of a murder; it must apply only to a subclass 

of defendants convicted of murder. See Arave v. Creech, 507 U.S. 

463, 474, 113 S.Ct. 1534, 1542, 123 L.Ed.2d 188 (1993) (“If the 

sentencer fairly could conclude that an aggravating circumstance 

applies to every defendant eligible for the death penalty, the 

circumstance is constitutionally infirm”). Second, the aggravating 

circumstance may not be unconstitutionally vague. 
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(Emphasis sic.) 

{¶ 264} As to vagueness, in Maynard v. Cartwright, 486 U.S. 356, 361-

362, 108 S.Ct. 1853, 100 L.Ed.2d 372 (1988), the Supreme Court stated: 

Claims of vagueness directed at aggravating circumstances defined 

in capital punishment statutes are analyzed under the Eighth 

Amendment and characteristically assert that the challenged 

provision fails adequately to inform juries what they must find to 

impose the death penalty and as a result leaves them and appellate 

courts with the kind of open-ended discretion which was held 

invalid in Furman v. Georgia, 408 U.S. 238, 92 S.Ct. 2726, 33 

L.Ed.2d 346 (1972). 

Tuilaepa added, “Because ‘the proper degree of definition’ of eligibility and 

selection factors often ‘is not susceptible of mathematical precision,’ our 

vagueness review is quite deferential.” Tuilaepa at 973, quoting Walton v. 

Arizona, 497 U.S. 639, 655, 110 S.Ct. 3047, 111 L.Ed.2d 511 (1990). “Relying 

on the basic principle that a factor is not unconstitutional if it has some ‘commonsense core of meaning * * * that criminal juries should be capable of 

understanding,’ Jurek v. Texas, 428 U.S. 262, 279, 96 S.Ct. 2950, 2959, 49 

L.Ed.2d 929 (1976) (White, J., concurring in judgment), we have found only a 

few factors vague * * *.” Id. at 973-974. 

{¶ 265} Jackson is incorrect in asserting that a conviction for aggravated 

murder based on prior calculation and design can be upheld on the basis of an 

instantaneous eruption of events. See State v. Goodwin, 84 Ohio St.3d 331, 344, 

703 N.E.2d 1251 (1999). In State v. Campbell, 90 Ohio St.3d 320, 341, 738 

N.E.2d 1178 (2000), this court emphasized that “purpose to kill is not the same 

thing as prior calculation and design and does not by itself satisfy the mens rea
January Term, 2014 

75 

element of R.C. 2903.01(A).” The court quoted the jury instructions for prior 

calculation and design: 

 “A person acts with prior calculation and design when by 

engaging in a definite process of reasoning he forms a purpose to 

kill and plans the method he intends to use to cause death. “The 

circumstances surrounding the homicide must show a scheme 

designed to carry out the calculated decision to cause the death. 

No definite period of time must elapse and no particular amount of 

consideration need be given, but acting on the spur of the moment 

or after momentary consideration of the purpose to cause death is 

not sufficient.” (Emphasis added.) 

Id. Thus, the element of prior calculation and design does not apply to every 

intentional murder. 

{¶ 266} As to Jackson’s constitutional claims, the difference between prior 

calculation and design and purpose has a “common sense core of meaning” that 

adequately informs the sentencer what it must find to impose the death penalty, 

thereby alleviating any vagueness concerns. Thus, this argument lacks merit. 

{¶ 267} Next, Jackson appears to claim that Ohio’s statutory scheme is 

unconstitutional because it impermissibly prevents the sentencer from considering 

mercy as a mitigating factor. But we have previously rejected such claims. See 

Steffen, 31 Ohio St.3d at 125, 509 N.E.2d 383. 

{¶ 268} Finally, Jackson argues that Ohio’s death-penalty statutory 

scheme violates the constitutional prohibitions against arbitrary and unequal 

punishment. These claims also lack merit. See, e.g., State v. Ferguson, 108 Ohio 

St.3d 451, 2006-Ohio-1502, 844 N.E.2d 806, ¶ 86; State v. Jenkins, 15 Ohio St.3d 

164, 169-170, 473 N.E.2d 264 (1984). 
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{¶ 269} In proposition of law No. XIV, Jackson asserts additional 

constitutional challenges against Ohio’s capital-punishment scheme. We also 

reject these claims. See, e.g., State v. Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 

926 N.E.2d 1239, ¶ 215-216; State v. Carter, 89 Ohio St.3d 593, 607-608, 734 

N.E.2d 345 (2000); Jenkins at paragraph one of the syllabus. 

{¶ 270} Jackson also challenges the constitutionality of Ohio’s reasonable 

doubt standard. However, we have affirmed the constitutionality of R.C. 

2901.05(D). See State v. Jones, 91 Ohio St.3d 335, 347, 744 N.E.2d 1163 (2001).

{¶ 271} Finally, Jackson claims that Ohio’s death-penalty statutes violate 

international law and treaties to which the United States is a party. This argument 

also lacks merit. See State v. Issa, 93 Ohio St.3d 49, 69, 752 N.E.2d 904 (2001); 

State v. Phillips, 74 Ohio St.3d 72, 103-104, 656 N.E.2d 643 (1995). 

{¶ 272} Propositions of law Nos. XI and XIV are rejected. 

IV. Independent Sentence Evaluation 

{¶ 273} Having considered Jackson’s propositions of law, we now 

independently review Jackson’s death sentence for appropriateness and 

proportionality as R.C. 2929.05(A) requires. 

A. Aggravating circumstances 

{¶ 274} Jackson was convicted of murdering Tracy Pickryl as part of a 

course of conduct involving the purposeful killing or attempt to kill two or more 

persons (Pickryl and Christy Diaz) in violation of R.C. 2929.04(A)(5). He was 

also convicted of committing murder while committing or attempting to commit 

aggravated robbery, R.C. 2929.04(A)(7), and committing murder while 

committing or attempting to commit kidnapping, R.C. 2929.04(A)(7). The panel 

merged the two felony-murder specifications into a single aggravated-robbery 

specification before sentencing. 

{¶ 275} The evidence at trial supports the panel’s findings of guilt as to all 

the aggravating circumstances. As to the felony murder, the evidence established 
January Term, 2014 

77 

that Jackson entered the Soap Opera Laundry early on the morning of June 18, 

2009. Jackson pulled a gun and ordered Pickryl to give him the money. Pickryl 

told him that there was not any money to give. Jackson grabbed a necklace from 

Pickryl’s neck and then shot and killed her. Jackson was later arrested. A gun 

found in the house where he was hiding was identified as the murder weapon. 

{¶ 276} As to the course-of-conduct specification, Jackson killed Pickryl 

and then turned his gun on Diaz and demanded money. Diaz handed Jackson a 

pouch containing money. Jackson then shot at Diaz and barely missed hitting her 

in the head. Jackson later admitted to police that he shot and killed Pickryl and 

fired at Diaz. Thus, the facts establish that the murder of Pickryl and the 

attempted murder of Diaz were directly linked by time and location. See State v. 

Sapp, 105 Ohio St.3d 104, 2004-Ohio-7008, 822 N.E.2d 1239, ¶ 52 (time, 

location, murder weapon, and motive can establish the factual link necessary to 

prove a course of conduct). 

B. Mitigating evidence presented 

{¶ 277} Against these aggravating circumstances, we weigh the mitigating 

factors contained in R.C. 2929.04(B). Jackson called Dr. Fabian and introduced 

Dr. Fabian’s written report, Jackson’s school records, his medical records, and his 

employment records. Jackson also made an unsworn statement and a statement in 

allocution. 

1. Dr. Fabian’s testimony 

{¶ 278} Jackson was raised on Cleveland’s east side. Jackson’s father was 

the pastor of a Cleveland church, and his mother ran a daycare program at that 

church. Jackson came from a large family and has nine brothers and sisters. The 

children were from his father’s two different relationships. Jackson and one other 

sibling were the children from his father’s relationship with his mother. Jackson 

stated that the family was “well provided for” and never wanted for anything. 
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78 

{¶ 279} Jackson’s parents reported that they endorsed physical 

disciplinary practices that were firm and consistent. Jackson’s parents admitted 

to beating and whipping Jackson, particularly when he made them mad. Jackson 

also stated that he had been beaten at his mother’s daycare. 

{¶ 280} Dr. Fabian testified that Jackson had told him that he had been 

sexually abused by two different women at his father’s church. Jackson’s parents 

denied any knowledge of sexual abuse. But Joseph Jackson, the defendant’s 

brother, suspected that an adult female had sexually abused Jackson as a child. 

Joseph told Dr. Fabian that Jackson would not lie about sexual abuse. 

{¶ 281} Jackson’s parents reported that Jackson had exhibited some 

behavioral problems as a child. Joseph reported that Jackson was “slow with 

everything.” He stated that Jackson tended to associate “with others who were 

getting into trouble, because they were not outperforming him and were not 

smarter than him. * * * These people reinforced him to do the wrong things and 

be involved with criminal activity.” 

{¶ 282} Joseph stated that he and Jackson grew up in Cleveland’s 

Kinsman area and that it was not a bad area when they were young, but later, the 

neighborhood deteriorated. Joseph witnessed men shooting guns in the street, and 

“one time someone was shot by a cop in the church and [Jackson] and I had to 

clean the blood up.” Jackson also reported, “I’ve seen people get shot and killed 

about three times, the first time was as a kid.” 

{¶ 283} Jackson attended Cleveland public schools and quit school in the 

12th grade while attending Max Hayes High School. His school records show 

that he was a poor student and missed a lot of school. Dr. Fabian testified that 

Jackson’s vocabulary comprehension was particularly lacking. 

{¶ 284} Dr. Fabian reported that Jackson has worked at a variety of jobs. 

These include working as a kitchen worker and chef, an assembly-line worker, a 

machine operator, a security guard, a house painter, and a dishwasher. Jackson 
January Term, 2014 

79 

told Dr. Fabian that he was homeless and unemployed at the time of the offenses. 

Jackson’s family reported that Jackson is married but that the marriage is 

extremely dysfunctional. 

{¶ 285} Dr. Fabian testified that Jackson “does not suffer from any 

significant mental illness such as psychosis or mood disorder.” However, Dr. 

Fabian stated that testing indicated that Jackson has “cognitive impairments in 

various areas including low intelligence, deficient academic achievement abilities 

and some cognitive neuropsychological deficits. I believe * * * that they are 

connected and correlated with one another.” 

{¶ 286} Jackson was administered the WAIS-IV to assess his current 

intellectual functioning. Jackson’s overall IQ score of 75 placed him in the fifth 

percentile and the borderline range of intellectual functioning. Jackson’s scores 

on the WAIS-IV subtests showed impairments in all areas. Dr. Fabian also 

testified that Jackson had taken the GAMA, which is a brief IQ test, and his IQ 

was determined to be 87 in 2003 and 93 in 2007. In addition, Jackson took the 

WASI in September 2009, and his IQ was determined to be 87. 

{¶ 287} Jackson was administered the Woodcock-Johnson, Third Edition, 

to assess his academic achievement. He was tested in 11 academic areas. Dr. 

Fabian reported, “When considering the following grade and age equivalencies, 

his results from these eleven areas were approximately in the 6.9 grade equivalent 

and 11 years, 8 months age equivalent.” 

{¶ 288} Jackson also took the Neuropsychological Assessment Battery 

(“NAB”) to assess his attention, memory, visual-spatial construction, language, 

and executive functioning. The results were in the below-average range and 

placed him in the 16th percentile. Dr. Fabian reported that “[o]verall the 

consistencies between the WAIS-IV, the NAB, and the Woodcock-Johnson III 

include problems and impairments in language skills, memory abilities and 

attention.” 
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{¶ 289} Dr. Fabian stated that Jackson has a significant history of 

substance abuse and dependence. Jackson reported that he began using alcohol 

and marijuana at the age of 14. Dr. Fabian testified that Jackson’s “drugs of 

choice were alcohol, phencyclidine or what we call PCP or angel dust, cannabis, 

marijuana, and then he’s taken opiate-type pills such as Oxycontin, used and 

abused cocaine and LSD.” Jackson reported that he was using an ounce of PCP 

and a quarter-ounce to a half-ounce of marijuana every day. Jackson also 

reported using cocaine on a daily basis during the last few years and drinking 

significant amounts of alcohol. 

{¶ 290} Dr. Fabian also testified that Jackson was administered the 

substance-abuse screening inventory (“SASSI-3”) and “he clearly met [the] 

criteria for substance dependence, both alcohol and drug dependence.” Dr. 

Fabian testified that Jackson “reported symptoms of dependence, nausea, 

dizziness, hallucinations, flashbacks, [and] drinking more than intended, [and] his 

substances have interfered with relationships, so it’s affected work and school.” 

{¶ 291} In closing his report, Dr. Fabian summarized the mitigating 

factors that could be considered: (1) cognitive impairments, probable cognitive 

disorder and functioning in the borderline range of intellectual functioning, (2) 

history of polysubstance dependence and likely intoxicated state at the time of the 

offenses with substance dependency of phencyclidine, cannabis, alcohol, cocaine, 

and opioids, (3) abuse at home, including, at a minimum, harsh corporal physical 

discipline, (4) questionable self-reported sexual abuse between the ages of six and 

ten by two separate women at church, (5) witnessing violence in the community, 

including, according to Jackson, at least three murders, (6) growing up in a low 

socioeconomic community with exposure to possession of weapons, drug use, 

drug trafficking, and community violence, and (7) notable psychosocial stressors 

around the time of the offenses. 

 
January Term, 2014 

81 

2. Jackson’s unsworn statement 

{¶ 292} Jackson apologized to his family and Tracy Pickryl’s family in his 

unsworn statement: 

I know I did wrong * * *. I’m trying to come up here and tell you 

all straight from the heart that I know I was wrong and I let evil 

begot evil. And I’ll say it again, I’m willing to accept the 

consequences of my actions. 

 And I really like to apologize to my family, putting you all 

through this, and I especially like to apologize to Tracy Pickryl’s 

family, her community, her friends because I know it’s hard for 

you all to sleep at night. 

{¶ 293} Jackson continued by examining his actions, expressing his 

willingness to accept the consequences for what he did, and apologizing to 

Christy Diaz: 

 Every time I think about it, I mean when I seen the pictures 

I think like that could have been my sister, that could have been 

my aunt, that could have been somebody of mine that’s up there 

and I know it was stupid * * * and I have to come up here and say 

it’s drugs and all of that but it was just—I let evil get ahold of me, 

* * * and I know there’s a lot of other people out there and they 

doing the same thing and because they got the demon inside of 

them and it’s not them, it’s that demon inside of them. And I thank 

God that through the prayers and through my family that I believe 

that that demon been set aside and we killed that demon, * * * that 

I feel like I’m ready to do the right things now, * * * but like I 
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82 

said, I’m willing to accept my consequences for my actions * * * 

and especially Christy Diaz, I want to apologize to you. 

3. Allocution 

{¶ 294} Before final sentencing, Jackson apologized for his actions but 

said it was a “cold blooded accident.” Jackson said, “I shouldn’t have went in 

there in the first place. This is where I was wrong.” Jackson then dramatically 

changed the tone of his remarks: 

 I want God to bless all of you. I hope all you have is a 

sweet memory and you forget about this, forget about this evilness 

that occurred, you know. 

 God damn America, like Jeremiah Wright said. God damn 

America. 

THE COURT: Little louder, please. 

THE DEFENDANT: God damn America. 

 The simple fact is * * * being in Ohio and the way Ohio 

treat defendants and do people that come through this Court, you 

all make people come out here and do the evil things that they do, 

you know. 

{¶ 295} Jackson then complained about how he had been wrongfully 

treated by the court system by being improperly labeled as a sex offender for six 

years. Jackson also complained about his treatment after he had violated 

probation for drug use. Jackson concluded his unsworn statement by referring to 

his experience with the court system and his defense counsel following an 

apparent abduction charge: 
January Term, 2014 

83 

 I was in the Church and the—you have the abduction on 

paper. I wanted to take her home to her place where her family 

was, and I tried to do that, but they don’t talk about the part where 

the lady even admitted how she was on X pills. 

 She was messed up and somebody raped her before she 

even got to that church, but I plea bargained because they don’t 

want to talk about how my lawyer was some shit, and he didn’t 

give a fuck. 

 He was scandalous. He told me just plea bargain and cop 

out. That is the best thing for you because they don’t give a fuck 

and it’s a white lady and you can’t win. 

 But, like I said, God damn America, you know? America 

ain’t shit. 

 Fuck you all. You can kiss my ass. 

C. Sentence evaluation 

{¶ 296} We find nothing mitigating in the nature and circumstances of the 

offense. Jackson robbed the Soap Opera Laundry and killed Tracy Pickryl when 

she told him there was no money. He also shot at Christy Diaz but just missed 

hitting her. These are horrific crimes with no mitigating features. 

{¶ 297} Jackson’s history, character, and background do offer some 

mitigating evidence. Jackson grew up in a large family. His father was a church 

pastor and his mother ran the church’s daycare program. However, his parents 

admitted beating and whipping him, particularly when he made them mad. 

Jackson also grew up in a poor socioeconomic area and was exposed to drugs and 

violence as a young person. In addition, Jackson experienced a tumultuous 

marriage, and his wife had a serious drug problem, according to Jackson’s family 
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84 

members. Nevertheless, we find that none of these facts are entitled to significant 

weight in mitigation. See Fears, 86 Ohio St.3d at 349, 715 N.E.2d 136. 

{¶ 298} The statutory mitigating factors contained in R.C. 2929.04(B) 

include victim inducement, R.C. 2929.04(B)(1); duress, coercion, or strong 

provocation, (B)(2); mental disease or defect, (B)(3); youth of the offender, 

(B)(4); lack of a significant criminal record, (B)(5); accomplice only, (B)(6); and 

any other relevant factors, (B)(7). 

{¶ 299} The first six of these factors do not apply, but several points in 

mitigation occur under the (B)(7) factor. We give considerable weight to 

Jackson’s cognitive impairments and his borderline range of intellectual 

functioning (IQ of 75). We also give some weight to Jackson’s history of drug 

and alcohol dependence. See State v. Craig, 110 Ohio St.3d 306, 2006-Ohio4571, 853 N.E.2d 621, ¶ 146. 

{¶ 300} In addition, we give some weight to evidence that Jackson was 

sexually abused by two different women attending his father’s church. See State 

v. Lynch, 98 Ohio St.3d 514, 2003-Ohio-2284, 787 N.E.2d 1185, ¶ 195. Dr. 

Fabian indicated some doubt about the truthfulness of Jackson’s self-reported 

abuse. But Jackson’s brother stated that he suspected that Jackson had been 

sexually abused during childhood by an adult female and stated that Jackson 

would not lie about sexual abuse. 

{¶ 301} We also give weight to Jackson’s employment history and the 

love and support that he has from his family members. See State v. Trimble, 122 

Ohio St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 327. 

{¶ 302} Jackson accepted responsibility for his actions and apologized to 

Pickryl’s family and Christy Diaz in his unsworn statement. But during 

allocution, Jackson stated that the murder was “a cold blooded accident” and 

“nothing that I meant to do.” Jackson also complained about how he had been 

wrongfully treated by the court system through the years and blamed the court for 
January Term, 2014 

85 

making people “do the evil things that they do.” Thus, Jackson fails to take full 

responsibility for his actions. Jackson’s denials negate the mitigating weight that 

we might otherwise give to his apologies and remorse. See Hunter, 131 Ohio 

St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, at ¶ 205. The evidence does not 

suggest any other (B)(7) mitigating factors. 

{¶ 303} After independently weighing the facts, we find that the 

aggravating circumstances outweigh the mitigating factors beyond a reasonable 

doubt. Jackson’s murder of Pickryl during an aggravated robbery and his course 

of conduct in murdering Pickryl and attempting to murder Diaz are egregious 

aggravating circumstances. Jackson’s mitigating evidence has little significance 

in comparison. 

{¶ 304} As a final matter, we hold that the death penalty is proportionate 

to death sentences approved in other cases. We have upheld death sentences in 

other cases combining a course-of-conduct specification with a robbery-murder 

specification. See State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 

N.E.2d 104, ¶ 253; Beuke, 38 Ohio St.3d at 45, 526 N.E.2d 274. 

{¶ 305} Moreover, we have approved death sentences in cases involving 

only an aggravated-robbery specification. See, e.g., Hale, 119 Ohio St.3d 118, 

2008-Ohio-3426, 892 N.E.2d 864, at ¶ 278; State v. Lindsey, 87 Ohio St.3d 479, 

492, 721 N.E.2d 995 (2000). We have also approved death sentences involving a 

course-of-conduct specification when, as here, the defendant committed one 

murder and one attempted murder. Perez at ¶ 254; Foust, 105 Ohio St.3d 137, 

2004-Ohio-7006, 823 N.E.2d 836, at ¶ 203; Filiaggi, 86 Ohio St.3d at 253-254, 

714 N.E.2d 867. 

V. Hall v. Florida

{¶ 306} In Hall v. Florida, ___ U.S. ___, 134 S.Ct. 1986, ___ L.Ed.2d ___ 

(2014), the United States Supreme Court applied its prior decision in Atkins v. 

Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), to invalidate a 
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Florida law that precluded the presentation of additional evidence of intellectual 

disability (i.e., mental retardation) when the offender scored above 70 on IQ tests. 

The court held that Florida’s definition of mental retardation was unconstitutional, 

explaining that “when a defendant’s IQ test score falls within the test’s 

acknowledged and inherent margin of error, the defendant must be able to present 

additional evidence of intellectual disability, including testimony regarding 

adaptive deficits.” Hall at 2001. 

{¶ 307} The court noted in its opinion, “Previous opinions of this Court 

have employed the term ‘mental retardation.’ This opinion uses the term 

‘intellectual disability’ to describe the identical phenomenon. See Rosa’s Law, 

[P.L. No. 111-256,] 124 Stat. 2643 (changing entries in the U.S. Code from 

‘mental retardation’ to ‘intellectual disability’) * * *.” Id. at 1990. Ohio, 

however, has not similarly changed entries in its statutes. See, e.g., R.C. 

2929.06(A) (establishing procedure for resentencing an offender when his or her 

death sentence “is set aside, nullified, or vacated because a court has determined 

that the offender is mentally retarded under standards set forth in decisions of the 

supreme court of this state or the United States supreme court”); R.C. 5126.01(P) 

(defining “mental retardation”). And we note that in 2009 Sub.S.B. No. 79, the 

General Assembly renamed county boards of mental retardation and 

developmental disabilities by deleting references to mental retardation. 

{¶ 308} The holding in Hall does not apply to this case. Ohio has no 

statute similar to Florida’s that bars additional evidence of mental retardation 

when the offender scores above 70 on IQ tests. In State v. Lott, 97 Ohio St.3d 

303, 2002-Ohio-6625, 779 N.E.2d 1011, ¶ 12, this court held that when an 

offender’s IQ is 70, there is a rebuttable presumption that the offender is not 

mentally retarded, but the offender is not prohibited from presenting additional 

evidence of mental retardation, including deficits in adaptive functioning. 
January Term, 2014 

87 

{¶ 309} Further, Jackson has not claimed in these proceedings that he is, 

in fact, mentally retarded. The trial court did not conduct an Atkins hearing and 

never made a ruling that Jackson is not mentally retarded. Rather, it held a 

hearing so that the record would reflect that trial counsel had considered and 

diligently investigated the Atkins issue and justifiably decided not to pursue a 

claim that Jackson is mentally retarded. And to the extent that Jackson argues 

that trial counsel provided ineffective assistance by failing to adequately 

investigate his adaptive functioning, there is no showing that Jackson actually has 

deficits in intellectual or adaptive functioning that would prove mental retardation 

or a developmental disability, and therefore he cannot demonstrate prejudice on 

this record. 

VI. Conclusion 

{¶ 310} We affirm the judgments of conviction and sentence of death. 

Judgment affirmed. 

O’CONNOR, C.J., and PFEIFER and KENNEDY, JJ., concur. 

LANZINGER and FRENCH, JJ., concur in judgment only. 

O’NEILL, J., dissents. 

_________________ 

O’NEILL, J., dissenting. 

{¶ 311} Once again, I am compelled to dissent from this court’s 

affirmance of a death sentence. Here, the court places its imprimatur on the 

execution of an intellectually disabled man, despite the fact that the only evidence 

presented strongly tends to establish that the victim’s injury and death were 

unintended. 

{¶ 312} I do not expect that the court will adopt my view that the death 

penalty is cruel and unusual and therefore constitutionally forbidden anytime 

soon. See, e.g., State v. Wogenstahl, 134 Ohio St.3d 1437, 2013-Ohio-164, 981 

N.E.2d 900, ¶ 2 (O’Neill, J., dissenting). But I do believe that at some point in 
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the near future this court will be forced to recognize that Ohio’s death penalty 

reaches too far, to too many crimes and to too many criminals. And it will be 

forced to recognize that Ohio’s death penalty tends to distort the law and this 

court’s decisions, as well as society’s conceptions of justice and punishment. 

{¶ 313} The distortions worked in this case are manifold and vitiate any 

claim that Jackson’s death sentence was fairly imposed. Most notably, Jackson’s 

counsel determined, after investigation and consultation with the independent 

expert who had fully examined Jackson, that it was inappropriate to file a motion 

pursuant to Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 

(2002). A successful Atkins motion would have prohibited the imposition of the 

death penalty based on intellectual disability, but Jackson’s counsel determined 

that such a motion would have been unfounded and unsuccessful, and they may 

well have believed that even filing the motion would have worked to Jackson’s 

detriment. Given that the independent expert was Jackson’s primary witness in 

mitigation, defense counsel could reasonably have determined that requiring that 

same witness to testify about Jackson’s intellectual abilities in a pretrial Atkins

hearing that was bound to fail would have the effect of blunting the expert 

testimony’s impact and therefore might well cost Jackson his life. 

{¶ 314} Rather than accepting trial counsel’s strategic decision, the trial 

court chose to second-guess it. It sua sponte held a “reverse-Atkins” hearing to 

demonstrate that trial counsel’s decision to forgo filing an Atkins motion was 

justified and to “build a record on why it wasn’t being done.” In short, the trial 

court chose to sit second chair for the defense. Admittedly, trial courts have great 

latitude in managing the cases over which they preside. But this hearing had one 

justification only: to protect a yet-to-be-imposed death sentence from reversal in a 

subsequent appeal. There is simply no other reason to even contemplate such a 

hearing, and that should give pause to any reviewing court that is concerned about 
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89 

the potential prejudgment of a case and the sanctity of the attorney-client 

relationship. 

{¶ 315} In fact, a similar issue gave the trial court pause. The state filed a 

motion to have defense counsel’s entire trial file turned over to the court for in 

camera and appellate review. The trial court observed that the state’s “motion 

gets at the same issue that I was trying to get at with the Atkins thing, you know, 

build a record that the defendant has considered things, so that down the road 

there isn’t all this speculation whether something was done right.” But the trial 

court expressed far greater hesitancy on this motion and denied it. It seems that 

the court may have felt—correctly—that by granting such a motion it would be 

interfering with Jackson’s constitutional rights to present his case and be fairly 

defended by counsel. Why the trial court failed to recognize that the same 

damage occurred when the trial court adopted the role of inquisitor and caused the 

creation of a pretrial record on the Atkins issue is a true mystery. And while 

prejudice to Jackson may not be obvious from the record, the trial court’s action 

calls its impartiality into question. It therefore falls directly into the category of 

those “structural defects in the constitution of the trial mechanism, which defy 

analysis by ‘harmless-error’ standards.” Arizona v. Fulminante, 499 U.S. 279, 

309, 111 S.Ct. 1246, 113 L.Ed.2d 302 (1991), citing Tumey v. Ohio, 273 U.S. 

510, 47 S.Ct. 437, 71 L.Ed. 749 (1927) (trial by judge who is not impartial is 

structural error that violates due process). 

{¶ 316} I remain even more troubled by this court’s refusal to truly engage 

in an independent reweighing of death sentences. Jackson’s actions, abhorrent as 

they are, were undoubtedly influenced by his serious alcohol and drug abuse, his 

low intelligence, and his troubled background. Dr. Fabian, the independent expert 

retained by the defense, testified that Jackson had a serious substance dependence, 

including regular use of cocaine, ecstasy, opioids, and an ounce of PCP and a 

quarter-ounce of marijuana per day. Jackson stated that he took ecstasy and 
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smoked PCP and marijuana just before robbing the Soap Opera Laudromat and 

shooting Tracy Pickryl. And he reported paranoid and delusional thoughts as a 

result of his PCP abuse, including auditory hallucinations and a belief that he was 

a werewolf. This must be combined with Jackson’s poor intelligence-test results 

and history of cognitive difficulties, which show that he is low functioning and on 

the borderline of intellectual disability. All these things taken together create a 

significant mitigation case, one that this court is required to independently weigh. 

{¶ 317} The evidence clearly established that Jackson shot and killed 

Tracy Pickryl in the awful culmination of a spree of armed robberies that began 

two weeks earlier when he shot his friend Stanley Bentley in the side. Jackson 

admitted before and at trial that he had shot Pickryl but maintained that he never 

meant to kill her and that he had fired the gun only to scare her and that Pickryl 

had fallen into the line of fire and was hit in the face. This is corroborated by his 

testimony that he thought about killing Pickryl’s coworker Diaz because he did 

not want to leave any witnesses, but could not do it and instead shot over Diaz’s 

head to “shut her up” so he could escape. Jackson also admitted that he shot 

Bentley, but he claimed that it was because he believed that Bentley was about to 

shoot him. 

{¶ 318} This is a terrible case, but it should not be a death-penalty case. I 

dissent. 

____________________ 

Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Saleh 

S. Awadallah and Mary H. McGrath, Assistant Prosecuting Attorneys, for 

appellee. 

David L. Doughten and John P. Parker, for appellant. 

__________________________