[Cite as State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019.] 

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

[Cite as State v. Maxwell, 139 Ohio St.3d 12, 2014-Ohio-1019.] 

Criminal law—Right to confront witnesses—Sixth Amendment—Autopsy reports 

and testimony by nonexamining deputy coroner—Aggravated murder—

Death penalty upheld. 

(No. 2007-0755—Submitted June 5, 2013—Decided March 20, 2014.) 

APPEAL from the Court of Common Pleas of Cuyahoga County, 

No. 475400. 

____________________ 

SYLLABUS OF THE COURT

An autopsy report that is neither prepared for the primary purpose of accusing a 

targeted individual nor prepared for the primary purpose of providing 

evidence in a criminal trial is nontestimonial, and its admission into 

evidence at trial under Evid.R. 803(6) as a business record does not violate 

a defendant’s Sixth Amendment confrontation rights. 

____________________ 

LANZINGER, J. 

{¶ 1} This is an appeal as of right by defendant-appellant, Charles 

Maxwell, who has been sentenced to death for the aggravated murder of Nichole 

McCorkle. 

I. Trial Evidence 

{¶ 2} Evidence introduced at trial showed that McCorkle and Maxwell had 

a long-term relationship that began in 1999, living together on different occasions 

over the next few years. They had one child, C.M., nearly four years old. 

Nichole also had two other children, D.C. and D.K. In August 2005, she 

purchased a single-family home at 1046 East 146th Street in Cleveland and lived 
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there with her father and two of the children. Maxwell had a key to the side door 

of the house and kept some clothes there. 

The underlying assault 

{¶ 3} The prosecution introduced evidence showing that on October 6, 

2005, Nichole went to the hospital and received stitches for head injuries after 

Maxwell struck her. Police came to the hospital and took Nichole’s report about 

the incident. On the same date, Maxwell told John Gregg, a friend and coworker, 

that he had pistol-whipped Nichole. On October 13, 2005, she obtained a 

temporary protection order against Maxwell. 

{¶ 4} Afterward, prosecutors presented felonious-assault charges against 

Maxwell to the grand jury. Nichole was subpoenaed to testify before it on 

November 23, 2005. 

{¶ 5} Maxwell told Gregg that he was concerned about receiving prison 

time for felonious assault. Maxwell knew about the temporary protection order 

and that a warrant had been issued for his arrest. He had also learned that Nichole 

was going to testify against him at the grand jury. 

{¶ 6} At Maxwell’s behest, Gregg contacted Nichole about her grand jury 

testimony in an effort to reduce the charges from felonious assault to a lesser 

offense. Gregg asked Nichole to “stick to the story that it was a simple domestic; 

she pushed him, he pushed her, she slipped and hit her head on the stove.” 

A. Nichole’s grand jury testimony 

{¶ 7} Following Nichole’s testimony on November 23, 2005, the grand 

jury indicted Maxwell for felonious assault, abduction, and domestic violence. 

Brian Mooney, an assistant prosecutor for Cuyahoga County, informed Nichole 

that day that the grand jury had voted to indict and told her what the charges were. 

Because of the Thanksgiving holiday, the indictment was not signed by the grand 

jury foreman and filed with the clerk of court until November 28, 2005. 
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{¶ 8} The evening of the grand jury’s decision, Maxwell called Gregg and 

said that he had been trying to talk to Nichole about her grand jury testimony but 

had been unable to contact her. Maxwell then called Nichole while Gregg 

remained on the line and heard their conversation. Maxwell asked Nichole what 

happened in court that day. Nichole told him, “I told the truth. I had to tell the 

truth.” According to Gregg, Maxwell was very upset after the phone call and said 

that “the bitch was going to make him kill her.” Maxwell also asked Gregg where 

he could get a gun. 

B. The events of November 26 and 27, 2005

{¶ 9} The prosecution presented evidence that on the evening of 

November 26, 2005, Nichole and Willie Hutchinson met at a bar. Lauretta 

Kenney, Nichole’s sister, had introduced Hutchinson to Nichole after the October 

6 incident. Nichole and Hutchinson arrived at the bar in separate cars and had a 

few drinks. When they departed, although Nichole had told Hutchinson that she 

would call him when she got home, she did not. But Hutchinson called Nichole, 

and a man answered the phone. Hutchinson then called Lauretta and told her to 

check on Nichole. 

{¶ 10} Near 2:30 a.m. on November 27, Lauretta called Nichole, and 

Maxwell answered the phone. Maxwell immediately gave the phone to Nichole. 

Lauretta asked Nichole why Maxwell was there and told her that he needed to 

leave. According to Lauretta, Nichole said that “she was confused and she didn’t 

know what was going on.” 

{¶ 11} Lauretta then drove to Nichole’s home and arrived around 2:40 

a.m. but did not see Maxwell’s car on the street or in the driveway. Lauretta called 

Nichole, saying she was outside. Nichole “mumbled something” and then hung 

up. Lauretta went onto the porch, and Nichole and Maxwell were standing next to 

each other when Lauretta opened the screen door. 
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{¶ 12} Lauretta told Maxwell that he was not supposed to be there and 

needed to leave. Maxwell said that he was just talking to Nichole. Lauretta 

testified, “I told him, there’s no talking, that you needed to leave.” He then called 

Lauretta “a bitch” and said, “[I]f anybody’s leaving it’s going to be you.” 

Maxwell then stepped back and pulled a gun from his pants. Nichole screamed, 

“[O]h my God, Lauretta, he got a gun, run.” Lauretta then jumped off the porch 

and started running. Lauretta heard two gunshots as she ran across the street and 

heard a third gunshot after she crossed the street. Lauretta then saw Maxwell 

kneeling down by Nichole. 

{¶ 13} C.M., a day short of four years old, was standing near Maxwell and 

Nichole when Lauretta came to the door. Later, when asked what she had seen, 

C.M. testified, “He shoot my mommy.” 

{¶ 14} Maxwell ran from the house after shooting Nichole and fled down 

the street. Lauretta followed him for a short distance before he disappeared. 

Shortly afterwards, police officers and emergency medical personnel arrived on 

the scene. Nichole was taken to the hospital, where she died from her injuries. 

{¶ 15} On the morning of November 27, Michelle Kenney, Nichole’s 

other sister, called Gregg and told him that Maxwell had killed Nichole. Gregg 

said that he then called Maxwell and asked him if he had killed Nichole. Maxwell 

admitted killing her and recounted what happened. He said he had followed 

Nichole from her home to the bar. She went into the bar, and Maxwell waited 

outside in his car. He then went inside and saw Nichole and another man sitting 

in the back of the bar “making out.” Maxwell then returned to his car and waited. 

After they left the bar, he followed Nichole and the man as they drove in separate 

cars to Nichole’s house. Nichole kissed the man and went into her house, and the 

man drove away. 

{¶ 16} Gregg also testified that Maxwell told him that he called Nichole 

after the other man drove away and asked if he could come over. Nichole said he 
January Term, 2014 

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could, and Maxwell went to her house. Maxwell answered the phone at Nichole’s 

house, including repeated calls from a man who asked to speak to Nichole. He 

also answered a call from Lauretta. Maxwell told Gregg that “they started 

arguing and then he confronted her about that night.” Lauretta then came to the 

front door, and Maxwell “opened the door[,] pointed the gun and fired but she had 

ran.” Then, Maxwell told Gregg, “he just turned around, shot Nichole and she fell 

down and * * * she moved and then he shot her again.” 

C. The Police Investigation 

{¶ 17} Police investigators found two .25 caliber shell casings inside the 

house. Investigators looked inside and outside the house for a third shell casing, 

which they never found. Investigators also did not find any bullet holes inside or 

outside the house. 

{¶ 18} Dr. David Dolinak, a medical examiner with the Cuyahoga County 

coroner’s office, conducted Nichole’s autopsy. Nichole suffered two gunshot 

wounds to the head. One gunshot in the middle of the right eyebrow broke the 

bones of the eye socket. The bullet did not enter the brain but lodged in the 

sinuses on the right side of the nose. The other gunshot went through the left side 

of the head into the right side of the brain. Dr. Dolinak concluded that Nichole 

died from gunshot wounds to the head and that the death was a homicide. 

{¶ 19} Detective James Ealey, a firearms examiner with the Cleveland 

Police Department, examined the two bullets recovered during the autopsy. Ealey 

testified that they had been fired from the same weapon. His written report stated 

that the bullets were “consistent with 25 auto type ammunition.” 

{¶ 20} The police sought to locate and arrest Maxwell following Nichole’s 

death. On December 16, 2005, FBI Special Agent Robert Riddlebarger and other 

members of the Cleveland/Cuyahoga County Fugitive/Gang Task Force went to a 

Cleveland home to arrest him. After entering the home, they found Maxwell 

hiding in a crawl space behind a bed in a second-floor bedroom. As he was being 
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handcuffed, Maxwell was asked whether he was armed or whether there were any 

weapons nearby. He replied, “I do not have a gun anymore.” A few seconds 

later, Maxwell blurted out that he had gotten rid of the gun that he had. 

{¶ 21} The defense presented no witnesses during the guilt phase of the 

trial. 

II. Case History 

{¶ 22} Maxwell was indicted on two counts of aggravated murder. Count 

One charged him with the aggravated murder of Nichole with prior calculation 

and design. Count Two charged him with the aggravated murder of Nichole 

while committing kidnapping and/or aggravated burglary. Both counts contained 

death-penalty specifications for a course of conduct involving multiple murders or 

attempted murders, R.C. 2929.04(A)(5), murder while committing kidnapping or 

aggravated burglary, R.C. 2929.04(A)(7), murder in retaliation for testimony in a 

criminal proceeding, R.C. 2929.04(A)(8), and murder to escape accounting for a 

crime, R.C. 2929.04(A)(3). 

{¶ 23} Maxwell was also charged with six additional counts: Count 

Three—kidnapping, Counts Four and Five—aggravated burglary, Count Six—the 

attempted murder of Lauretta Kenney, Count Seven—retaliation against Nichole 

because she filed criminal charges against him, and Count Eight—having a 

weapon while under disability. Counts One through Seven each contained a 

firearm specification. 

{¶ 24} Maxwell pled not guilty to all charges and specifications. The 

matter proceeded to a jury trial on the first seven counts, while Maxwell waived a 

jury trial on Count Eight. At the close of the state’s case, defense counsel filed a 

Crim.R. 29 motion to dismiss the charges. The trial court granted the motion to 

dismiss Counts Two through Five and the felony-murder death-penalty 

specification but denied the motion to dismiss the other charges. The jury found 

Maxwell guilty of Counts One and Seven, the retaliation and murder-to-escape-
January Term, 2014 

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accounting specifications, and two firearm specifications. He was found not 

guilty of Count Six and the course-of-conduct specification. Separately, the trial 

court found Maxwell guilty of having a weapon while under a disability. 

{¶ 25} Prior to sentencing, the R.C. 2929.04(A)(3) specification was 

merged into the R.C. 2929.04(A)(8) specification. Following the presentation of 

evidence in the penalty phase of the trial, the jury recommended that Maxwell be 

sentenced to death. The trial court accepted the jury’s recommendation, and 

Maxwell was sentenced to death on Count One. He was also sentenced to five 

years in prison for the independent count of retaliation, three years on the firearm 

specification, and five years for having a weapon under a disability. 

III. Issues on Appeal 

{¶ 26} The principal issues for review include the adequacy of trial 

counsel’s preparation and presentation of mitigating evidence, the trial court’s 

failure to appoint a neurologist, the admissibility of Maxwell’s statements to 

police at the time of his arrest, and the admissibility of the medical examiner’s 

testimony and the autopsy report under Crawford v. Washington, 541 U.S. 36, 

124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). 

{¶ 27} In this appeal, Maxwell raises 19 propositions of law. We will 

address the issues in the approximate order that they arose during the trial; 

however, we will first discuss proposition of law XV, which deals with the 

admissibility of the medical examiner’s testimony and the autopsy report, as those 

issues present novel questions of law. 

Proposition of Law XV 

{¶ 28} In proposition of law XV, Maxwell argues that the trial court erred 

by admitting the autopsy report on Nichole McCorkle and by allowing Dr. Felo, 

who did not conduct the autopsy, to testify about the autopsy results in violation 

of his Sixth Amendment right to confrontation and Crawford. 
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{¶ 29} Dr. David Dolinak conducted Nichole’s autopsy on November 28, 

2005. The prosecution called Dr. Joseph Felo to testify about the autopsy instead 

of Dr. Dolinak, who at the time of trial had become the medical examiner for 

Austin, Texas. Maxwell objected to Dr. Felo’s testimony, citing Crawford and 

the best-evidence rule. The trial court cited State v. Craig, 110 Ohio St.3d 306, 

2006-Ohio-4571, 853 N.E.2d 621, and allowed Dr. Felo to substitute as a witness. 

Dr. Dolinak’s autopsy report was also admitted into evidence over defense 

objection. 

{¶ 30} Dr. Felo testified that he had reviewed the autopsy report and the 

autopsy photographs and x-rays of the victim and looked at tissue slides under the 

microscope. He discussed the external examination of Nichole that was 

conducted during the autopsy. He testified that there were two gunshot wounds to 

the head and a bruise in the midportion of the chest. He referred to the autopsy 

report in stating that this injury “was interpreted to be because of medical therapy, 

CPR, doing chest compressions.” He testified that the internal examination of the 

skull revealed a tear going through the right eyeball and into the brain. There was 

also some bleeding and bruising caused by bullets going through the brain. 

{¶ 31} Dr. Felo referred directly to the autopsy report in discussing the 

victim’s wounds. He testified, “Gunshot wound number one is described as being 

in the right eyebrow” (emphasis added), and he referred to the autopsy report in 

describing the trajectory of the gunshot. He also testified that the bullet from the 

other gunshot traveled “through the scalp and through the brain and skull from the 

left side going towards her right side.” He used autopsy photographs to illustrate 

this testimony. 

{¶ 32} Dr. Felo testified that microscopic examination showed the tears 

and bleeding caused by the bullets going through the brain, that microscopic 

evaluation of swabs taken from the victim’s mouth, vagina, and rectum revealed 

no evidence of sperm, and that stippling was found around both entrance wounds. 
January Term, 2014 

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He expressed his opinion that stippling is generally found when “it’s within 18 

inches of the end of the muzzle to the target.” 

{¶ 33} Although Dr. Felo testified that the Cuyahoga County coroner had 

established the cause and manner of death, he also provided his own opinion, 

stating, “The cause of Nichole Anna Maria McCorkle’s death is gunshot wounds 

of [the] head * * *. The manner of death is a homicide.” 

DISCUSSION 

{¶ 34} The Sixth Amendment’s Confrontation Clause provides, “In all 

criminal prosecutions, the accused shall enjoy the right * * * to be confronted 

with the witnesses against him * * *.” The United States Supreme Court has 

interpreted this to mean that admission of an out-of-court statement of a witness 

who does not appear at trial is prohibited by the Confrontation Clause if the 

statement is testimonial unless the witness is unavailable and the defendant has 

had a prior opportunity to cross-examine the witness. Crawford, 541 U.S. 36, 53-

54, 124 S.Ct. 1354, 158 L.Ed.2d 177. 

{¶ 35} Crawford did not define the word “testimonial” but stated generally 

that the core class of statements implicated by the Confrontation Clause includes 

statements “ ‘made under circumstances which would lead an objective witness 

reasonably to believe that the statement would be available for use at a later 

trial.’ ” Id. at 52, quoting the amicus brief of the National Association of 

Criminal Defense Lawyers. The Crawford opinion announced a “fundamentally 

new interpretation of the confrontation right.” Williams v. Illinois, ___ U.S. __, 

132 S.Ct. 2221, 2232, 183 L.Ed.2d 89 (2012). 

{¶ 36} We have already considered the distinction between testimonial 

and nontestimonial statements. In State v. Craig, 110 Ohio St.3d 306, 2006-Ohio4571, 853 N.E.2d 621, ¶ 88, we held that an autopsy report completed by a 

nontestifying medical examiner was admissible as a nontestimonial business 

record under Evid.R. 803(6). We held that there was no Sixth Amendment 
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violation in admitting the autopsy report because Crawford had indicated that 

“business records are, ‘by their nature,’ not testimonial” and were therefore 

admissible. Id. at ¶ 81, quoting Crawford, 541 U.S. at 56. We stated, “An 

autopsy report, prepared by a medical examiner and documenting objective 

findings, is the ‘quintessential business record.’ ” Id. at ¶ 82, quoting Rollins v. 

State, 161 Md.App. 34, 81, 866 A.2d 926 (2005). 

{¶ 37} After our decision in Craig, the United States Supreme Court 

decided that analysts who had performed laboratory tests were required to testify. 

Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 2527, 174 L.Ed.2d 314 

(2009). While the dissent states that the reasoning in Craig has been undone by 

Melendez-Diaz, we do not agree. In Melendez-Diaz, the court held that three 

notarized certificates of analysis showing that a forensic analysis identified 

cocaine were inadmissible. Being “quite plainly affidavits,” they constituted 

testimonial statements because they were “functionally identical to live, in-court 

testimony, doing ‘precisely what a witness does on direct examination.’ ” Id. at 

310-311, quoting Davis v. Washington, 547 U.S. 813, 830, 126 S.Ct. 2266, 165 

L.Ed.2d 224 (2006). The affidavits were also “ ‘ “made under circumstances 

which would lead an objective witness reasonably to believe that the statement[s] 

would be available for use at a later trial.” ’ ” Id. at 311, quoting Crawford, 541 

U.S. at 52, 124 S.Ct. 1354, 158 L.Ed.2d 177, quoting the amicus brief of the 

National Association of Criminal Defense Lawyers. Thus, the analysts who had 

provided the affidavits were witnesses for Confrontation Clause purposes, and the 

defendant had the right to confront them. Id. at 311. 

{¶ 38} Shortly afterwards, we considered how foundational testimony is to 

be presented for DNA analysis. State v. Crager, 116 Ohio St.3d 369, 2007-Ohio6840, 879 N.E.2d 745. In Crager, a DNA expert from the Bureau of Criminal 

Identification and Investigation (“BCI”) had testified about a DNA analysis 

performed by another agent. Id. at ¶ 8. We held that the DNA report was a 
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nontestimonial business record and that its introduction without the testimony of 

the BCI agent who prepared it did not violate Crawford. Id. at ¶ 78-79. Relying 

upon our earlier opinion, we stated, “The autopsy report at issue in Craig is not 

distinguishable from the DNA reports in this case.” Id. at ¶ 51. “As in Craig, the 

scientific-test reports in this case were prepared in the ordinary course of regularly 

conducted business and so were not testimonial.” Id. at ¶ 54. The United States 

Supreme Court vacated the judgment in Crager and remanded the case for further 

consideration in light of Melendez-Diaz. Crager v. Ohio, 557 U.S 930, 129 S.Ct. 

2856, 174 L.Ed.2d 598 (2009). Thereafter, without deciding whether Crager’s 

right to confront witnesses had been denied, we “vacat[ed] the judgment of the 

trial court and remand[ed] the cause to the trial court for a new trial consistent 

with Melendez-Diaz v. Massachusetts.” State v. Crager, 123 Ohio St.3d 1210, 

2009-Ohio-4760, 914 N.E.2d 1055, ¶ 3. 

{¶ 39} Next, the Supreme Court decided Bullcoming v. New Mexico, 564 

U.S. ___, 131 S.Ct. 2705, 180 L.Ed.2d 610 (2011). In Bullcoming, instead of 

calling the analyst who signed and certified the forensic report for blood-alcohol 

concentration in a DWI case, the prosecution introduced the lab report through the 

testimony of another analyst who had not performed or observed the analysis but 

was familiar with the testing procedures of the laboratory. Although the witness 

was a “knowledgeable representative of the laboratory” who could “explain the 

lab’s processes and the details of the report,” id. at 2723 (Kennedy, J, dissenting),

the majority held that the surrogate witness was not a proper substitute for the 

analyst who had conducted the test. The court concluded, “The accused’s right is 

to be confronted with the analyst who made the certification * * *.” Id. at 2710. 

{¶ 40} Bullcoming also held that the blood-alcohol analysis reports were 

testimonial. The court stated, “In all material respects, the laboratory report in 

this case resembles those in Melendez-Diaz. Here, as in Melendez-Diaz, a lawenforcement officer provided seized evidence to a state laboratory required by law 
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to assist in police investigations. * * * Like the analysts in Melendez-Diaz, [the 

certifying analyst] tested the evidence and prepared a certificate concerning the 

result of his analysis.” Id. at 2717. Thus, while the Crawford court declined to 

define “testimonial,” later decisions seem to explain the meaning of the word by 

stating that testimonial statements are those made for “a primary purpose of 

creating an out-of-court substitute for trial testimony.” Michigan v. Bryant, ___ 

U.S. __, 131 S.Ct. 1143, 1155, 179 L.Ed.2d 93 (2011); see also Bullcoming at 

2714, fn. 6, quoting Davis, 547 U.S. at 822, 126 S.Ct. 2266, 165 L.Ed.2d 224 

(“To rank as ‘testimonial,’ a statement must have a ‘primary purpose’ of 

‘establish[ing] or prov[ing] past events potentially relevant to later criminal 

prosecution’ ”). If a statement’s primary purpose is anything else, the statement is 

nontestimonial. Its admissibility is “the concern of state and federal rules of 

evidence, not the Confrontation Clause.” Id. 

{¶ 41} Most recently, five justices held that expert testimony from a 

forensic specialist did not violate a defendant’s right to confrontation. Williams v. 

Illinois, __ U.S. __, 132 S.Ct. 2221, 183 L.Ed.2d 89 (2012). The expert witness 

testified that a DNA profile produced by an outside laboratory (Cellmark) from a 

rape victim’s vaginal swabs matched the defendant’s DNA profile produced by a 

state police lab from the defendant’s blood sample. Id. at 2229-2230. The 

Cellmark report itself was neither admitted into evidence nor shown to the factfinder. The expert witness also did not quote or read from the report or identify 

the report as the source of any of her opinions. Id. at 2230. 

{¶ 42} Four of the five justices reasoned that the statements in the 

Cellmark report were nontestimonial because, first, the out-of-court statements 

were related by the expert solely for the purpose of explaining the assumptions on 

which the expert’s opinion relied and were not offered for their truth. Id. at 2240-

2241. And second, even if the Cellmark report had been admitted into evidence, it 

was not a testimonial document, because it was not prepared for “the primary 
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purpose of accusing a targeted individual,” which distinguished this report from 

the forensic reports in Melendez-Diaz and Bullcoming. Id. at 2242. Justice 

Thomas agreed that the expert’s testimony did not violate the Confrontation 

Clause, but only because the Cellmark report “lacked the requisite ‘formality and 

solemnity’ to be considered ‘testimonial’ for purposes of the Confrontation 

Clause.” Id. at 2255 (Thomas, J., concurring in judgment), quoting Michigan v. 

Bryant at 1167 (Thomas, J., concurring in judgment). 

{¶ 43} The admission of the autopsy report and Dr. Felo’s testimony must 

now be considered in light of the foregoing cases. 

Maxwell’s arguments

{¶ 44} Maxwell argues that Bullcoming prohibited Dr. Felo’s surrogate 

testimony about Nichole’s autopsy even though he was a “knowledgeable 

representative” who could explain the lab’s processes and the details of the 

autopsy report. Maxwell emphasizes that Dr. Felo’s testimony was introduced to 

prove a key fact at trial and was offered for the truth of the hearsay. Thus, 

Maxwell argues that he was entitled to confront and cross-examine the medical 

examiner who actually performed Nichole’s autopsy and wrote the report. 

{¶ 45} Maxwell argues that Williams, a decision resulting from a bench 

trial, should be distinguished from his case, which was tried before a jury without 

any limiting instructions regarding the purpose for which the report could be 

considered. He emphasizes that the Williams plurality indicated that the DNA 

testimony might not have been admissible if that defendant had elected to have a 

jury trial. 

{¶ 46} Maxwell also argues that unlike the purpose in Williams, the 

primary purpose of the autopsy and the related report was to establish that 

Nichole’s death resulted from a crime rather than an accident, suicide, or other 

means. Thus, Maxwell argues that Dr. Felo’s testimony and the introduction of 

the autopsy report resulted in a Confrontation Clause violation because the 
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purpose was “ ‘ “to establish or prove past events potentially relevant to later 

criminal prosecutions,” ’ ” quoting Williams, 132 S.Ct. at 2251, 183 L.Ed.2d 89 

(Breyer, J., concurring), quoting Davis, 547 U.S. at 822, 126 S.Ct. 2266, 165 

L.Ed.2d 224. 

The state’s arguments. 

{¶ 47} The state advances three main arguments for the admissibility of 

the autopsy report and the deputy coroner’s testimony. First, the state argues that 

this court should continue to apply Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 

853 N.E.2d 621, ¶ 88, in which we held that an autopsy report completed by a 

nontestifying medical examiner was admissible as a nontestimonial business 

record under Evid.R. 803(6). Second, the state argues that the coroner has a duty 

to conduct autopsies and maintain reports and that this duty exists entirely 

independent of any potential criminal prosecution that might later occur. The 

state also asserts that autopsy reports are not created for the purpose of litigation, 

because they do not identify suspects and are not accusatory in nature. Third, the 

state also points out that the passage of time can easily lead to the unavailability 

of the medical examiner who conducted an autopsy and that requiring the medical 

examiner who conducted the autopsy to testify would be equivalent to placing a 

statute of limitations on murder prosecutions. 

{¶ 48} Finally, even if admission of the autopsy report and Dr. Felo’s 

testimony violated Maxwell’s right to confrontation, the state argues that the error 

was harmless beyond a reasonable doubt. 

Analysis 

{¶ 49} A key element in evaluating the admissibility of the coroner’s 

testimony and the autopsy report in light of the recent United States Supreme 

Court cases is the primary-purpose test, which examines the reasons for and 

purpose of the record in question. To determine the primary purpose, a court 

must “objectively evaluat[e] the statements and actions of the parties to the 
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15 

encounter” giving rise to the statements. Bryant, 131 S.Ct. at 1162, 179 L.Ed.2d 

93; see also Williams, 132 S.Ct. at 2243, 183 L.Ed.2d 89 (plurality opinion of 

Alito, J.). 

Coroner’s testimony 

{¶ 50} Although Maxwell relies on Bullcoming, which disallowed 

surrogate testimony and held that the blood-alcohol reports admitted during the 

surrogate’s testimony were testimonial, the majority of jurisdictions that have 

examined this issue have concluded that a substitute examiner, on direct 

examination, may at least testify as to his or her own expert opinions and 

conclusions regarding the autopsy and the victim’s death. E.g., Commonwealth v. 

Avila, 454 Mass. 744, 762, 912 N.E.2d 1014 (2009) (“the expert witness’s 

testimony must be confined to his or her own opinions and, as to these, the expert 

is available for cross-examination”); Commonwealth v. Phim, 462 Mass. 470, 

479, 969 N.E.2d 663 (2012) (a substitute medical examiner may not testify on 

direct examination as to facts and conclusions stated in an autopsy report without 

personal knowledge or having independently reached the same conclusion); State 

v. Joseph, 230 Ariz. 296, 298, 283 P.3d 27 (2012) (as long as the substitute expert 

reaches his or her own conclusions, the Confrontation Clause is satisfied). 

{¶ 51} The Supreme Court of California, however, expanded the scope of 

admissible opinion testimony by a substitute examiner. The court allowed the 

substitute medical examiner to testify regarding his “independent opinion” as an 

expert witness as to the cause of the victim’s death, when that opinion was based 

solely on a review of the autopsy report. People v. Dungo, 55 Cal.4th 608, 618, 

147 Cal.Rptr.3d 527, 286 P.3d 442 (2012). Because the expert witness did not 

describe the conclusions reached by the nontestifying examiner, and the expert’s 

descriptions were limited to objective facts, such as the condition of the victim’s 

body at the time of the autopsy, these types of statements were not testimonial in 

nature. Id. at 619. 
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{¶ 52} We agree. Maxwell’s argument is also not persuasive because the 

Williams plurality stated that the forensic report (the Cellmark report) could have 

been admitted into evidence without violating the Confrontation Clause. 

Williams, 132 S.Ct. at 2242, 183 L.Ed.2d 89. 

{¶ 53} Dr. Felo testified that he reached his own independent judgment on 

the cause and manner of Nichole’s death based upon his analysis of the evidence 

in the autopsy report, which itself was admitted. His conclusions were the same 

as those in the report. But after reviewing the forensic evidence, Dr. Felo also 

provided some opinions that were not included in the autopsy report. For 

example, he provided his own conclusions about muzzle-to-target distance based 

on stippling around the entrance wounds on Nichole’s head. Such testimony 

constituted Dr. Felo’s original observations and opinions and did not violate the 

Confrontation Clause, because he was available for cross-examination regarding 

them. 

Autopsy report 

{¶ 54} In 2006, this court concluded that an autopsy report was a 

nontestimonial business record and that its admission did not impinge on a 

defendant’s confrontation rights. Craig, 110 Ohio St.3d 306, 2006-Ohio-4571, 

853 N.E.2d 621, ¶ 81-88 (applying Crawford v. Washington). Although the 

United States Supreme Court has decided several confrontation cases since our 

decision, they do not require departure from our holding in Craig. 

{¶ 55} Maxwell invokes the primary-purpose test that the Williams

plurality discussed. The Williams plurality stated that the Cellmark report could 

have been admitted into evidence because it “was not prepared for the primary 

purpose of accusing a targeted individual” of engaging in criminal conduct. 

(Emphasis added.) Williams, 132 S.Ct. at 2243, 183 L.Ed.2d 89. In contrast, 

Maxwell argues that the primary purpose of the autopsy and the related report was 

to establish that Nichole’s death was a crime. However, Maxwell fails to mention 
January Term, 2014 

17 

that five justices in Williams rejected the plurality’s narrowed definition of the 

primary-purpose test (the targeted-individual test). Id. at 2273 (Kagan, J., 

dissenting). Thus, Maxwell’s reliance on the plurality’s narrowed definition of 

the primary-purpose test is not helpful to our resolution of this issue. 

{¶ 56} Meanwhile, the state urges us to continue to adhere to Craig’s 

holding that an autopsy report is admissible as a nontestimonial business record. 

But an otherwise inadmissible testimonial statement may not be admitted into 

evidence based upon the business-and-official-records hearsay exception. 

Melendez-Diaz, 557 U.S. at 324, 129 S.Ct. 2527, 174 L.Ed.2d 314. Although 

documents kept in the regular course of business are ordinarily admitted into 

evidence under the hearsay exception, they are inadmissible “if the regularly 

conducted business activity is the production of evidence for use at trial.” Id. at 

321. When a statement is “ ‘made under circumstances which would lead an 

objective witness reasonably to believe that the statement would be available for 

use at a later trial,’ ” it is considered testimonial. Id. at 311, quoting Crawford, 

541 U.S. at 52, 124 S.Ct. 1354, 158 L.Ed.2d 177. Thus, labeling autopsy reports 

as “business records” does not end the inquiry. 

{¶ 57} An analysis of the primary-purpose test bears out Craig’s 

conclusion that autopsy reports are nontestimonial. Autopsy reports are not 

intended to serve as an “out-of-court substitute for trial testimony.” Bryant, 131 

S.Ct. at 1155, 179 L.Ed.2d 93. Instead, they are created “for the primary purpose 

of documenting cause of death for public records and public health.” Carolyn 

Zabrycki, Comment, Toward a Definition of “Testimonial”: How Autopsy 

Reports Do Not Embody the Qualities of a Testimonial Statement, 96 Cal.L.Rev. 

1093, 1130 (2008); see also People v. Leach, 2012 IL 111534, 366 Ill.Dec. 477, 

980 N.E.2d 570, ¶ 129 (a medical examiner is “charged with protecting the public 

health by determining the cause of a sudden death”). 

 
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Ohio statutes 

{¶ 58} Ohio coroners conduct autopsies pursuant to the authority granted 

to them by R.C. Chapter 313. Coroners must “keep a complete record of and 

* * * fill in the cause of death on the death certificate, in all cases coming under 

[their] jurisdiction.” R.C. 313.09. The death certificate also must indicate the 

“manner and mode in which the death occurred.” R.C. 313.19. If the cause and 

manner of death are not apparent—as when someone “dies as a result of criminal 

or other violent means, by casualty, by suicide, or in any suspicious or unusual 

manner” or “when any person * * * dies suddenly when in apparent good health,” 

R.C. 313.12—the coroner is notified so that an autopsy may be conducted. An 

autopsy is a “compelling public necessity” if it is needed to “protect[] against an 

immediate and substantial threat to the public health” or to assist law enforcement 

in conducting a murder investigation. R.C. 313.131. 

{¶ 59} Although autopsy reports are sometimes relevant in criminal 

prosecutions, Craig rightly held that they are not created primarily for a 

prosecutorial purpose. Consistent with Craig, other courts have held that 

coroners are statutorily empowered to investigate unnatural deaths and authorized 

to perform autopsies in a number of situations, only one of which is when a death 

is potentially a homicide. People v. Leach, 405 Ill.App.3d 297, 308-309, 345 

Ill.Dec. 694, 939 N.E.2d 537 (2010), aff’d, 2012 IL 111534, 366 Ill.Dec. 477, 980 

N.E.2d 570; Dungo, 55 Cal.4th 608, 147 Cal.Rptr.3d 527, 286 P.3d 442 

(testimony by a chief medical examiner who did not prepare the decedent’s 

autopsy report was admissible); United States v. James, 712 F.3d 79, 97 (2d 

Cir.2013) (autopsy report was to be considered on whether it was “prepared with 

the primary purpose of creating a record for use at a later trial” ). 

{¶ 60} Ohio courts of appeals have also continued to uphold the 

admissibility of autopsy reports prepared by nontestifying medical examiners 

since Melendez-Diaz. State v. Hardin, 193 Ohio App.3d 666, 2010-Ohio-6304, 
January Term, 2014 

19 

953 N.E.2d 847, ¶ 9-20 (4th Dist.) (autopsy report prepared by nontestifying 

medical examiner admissible as a nontestimonial business record, since it was not 

prepared for purposes of litigation); State v. Zimmerman, 8th Dist. Cuyahoga No. 

96210, 2011-Ohio-6156, ¶ 43-45 (admissibility of autopsy report prepared by 

nontestifying medical examiner does not conflict with Bullcoming); State v. 

Adams, 7th Dist. Mahoning No. 08 MA 246, 2012-Ohio-2719, ¶ 20, 26 (Craig 

still controls and autopsy report is nontestimonial evidence under Crawford, as it 

is not made solely at the behest of police in order to convict the particular 

defendant); State v. Monroe, 8th Dist. Cuyahoga No. 94768, 2011-Ohio-3045 

(Craig not in conflict with Melendez-Diaz). 

{¶ 61} As a final matter, the admissibility of autopsy reports completed by 

a nontestifying medical examiner presents unique policy interests that are not 

present in other Crawford-related evidentiary matters. A medical examiner who 

conducted an autopsy may be unavailable or deceased when a trial begins. And 

unlike other forensic tests, a second autopsy may not be possible due to cremation 

of the victim’s body or other loss of evidence with passage of time. 

{¶ 62} Under R.C. 313.09, coroners are required to “keep a complete 

record of and * * * fill in the cause of death on the death certificate, in all cases 

coming under [their] jurisdiction.” Moreover, the scope of an examiner’s duty is 

the same regardless of whether criminal activity is suspected or not. The Illinois 

Supreme Court has recognized that in some instances, police may compel the 

conducting of an autopsy during investigation of a cold case for later use at trial, 

and in that event the autopsy may play a testimonial role. People v. Leach, 2012 

IL 111534, 366 Ill.Dec. 477, 980 N.E.2d 570, ¶ 133. The dissent rejects the 

primary-purpose test and would hold that whether a particular autopsy report is 

testimonial should be determined on a case-by-case basis. But generally, autopsy 

reports are neither (1) prepared for the primary purpose of accusing a targeted 

individual nor (2) prepared for the primary purpose of providing evidence in a 
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criminal trial. For Sixth Amendment purposes, it is only the primary purpose of a 

document that determines whether it is testimonial or not. 

{¶ 63} Melendez-Diaz and Bullcoming, on which Maxwell relies, are 

readily distinguishable here. In both cases, the forensic reports were made at the 

request of police, for specific “evidentiary purposes” in order to aid in a police 

investigation. The record does not show that to be the case here. We hold that an 

autopsy report that is neither prepared for the primary purpose of accusing a 

targeted individual nor prepared for the primary purpose of providing evidence in 

a criminal trial is nontestimonial, and its admission into evidence at trial under 

Evid.R. 803(6) as a business record does not violate a defendant’s Sixth 

Amendment confrontation rights. 

{¶ 64} Finally, the state argues that any error in admitting Dr. Felo’s 

testimony and the autopsy report constitutes harmless error beyond a reasonable 

doubt, an issue we must determine. See Chapman v. California, 386 U.S. 18, 24, 

87 S.Ct. 824, 17 L.Ed.2d 705 (1967). Even if there was error in admitting the 

coroner’s testimony and the autopsy report, as discussed later in proposition XIII, 

overwhelming evidence was introduced that established Maxwell’s guilt, and 

expert testimony was not crucial in proving the cause and manner of Nichole’s 

death. Eyewitness testimony established that Maxwell shot Nichole in the head, 

and two .25-caliber shell casings were found inside the house after Maxwell fled 

the scene. Maxwell also admitted to Gregg that he shot Nichole twice. Finally, 

Michelle Kenney testified that Nichole died a short time after arriving at the 

hospital. 

{¶ 65} We will now address the remaining issues in the approximate order 

that they arose during the trial proceedings. 

 
January Term, 2014 

21 

A. Pretrial and trial issues

1. Amendment of the indictment (Proposition of law II) 

{¶ 66} Maxwell argues that the trial court erred by allowing the prosecutor 

to amend the indictment without engaging in a colloquy with the defendant to 

ensure that he knowingly, intelligently, and voluntarily waived his right to a grand 

jury. 

{¶ 67} At the beginning of trial, the prosecutor sought to amend pursuant 

to Crim.R. 7(D) the specification that accompanied Counts One and Two that the 

murder occurred to escape the accounting for a crime. The specification stated, 

“The offender committed the offense presented above for the purpose of escaping 

punishment for another offense committed by him, to-wit: Rape.” The prosecutor 

stated that there was a typographical error and that the specification should state 

“felonious assault” instead of “rape.” 

{¶ 68} The defense did not object to amending the specifications. Defense 

counsel stated, “The prosecutor raised this issue with me * * * several pretrials 

ago. I had an opportunity to speak to Mr. Maxwell with regards to this. I 

explained to him certainly we have no objection to this, and he agrees with me in 

terms of that, and certainly the county prosecutor can, of course, take this back to 

the Grand Jury to correct the typographical error, if he wishes to do so.” The 

prosecutor was then allowed to amend the specification. Because Maxwell failed 

to object to the amendment, he has waived all but plain error. See State v. 

Rohrbaugh, 126 Ohio St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, ¶ 6. 

{¶ 69} Under Crim.R. 7(D), a court may amend an indictment “at any 

time” if the amendment does not change “the name or identity of the crime 

charged.” An amendment that changes the penalty or degree of the charged 

offense changes the identity of the offense and is not permitted by Crim.R. 7(D). 

State v. Davis, 121 Ohio St.3d 239, 2008-Ohio-4537, 903 N.E.2d 609, syllabus. 

However, “[a]s long as the state complies with Crim.R. 7(D), it may cure a 
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defective indictment by amendment, even if the original indictment omits an 

essential element of the offense with which the defendant is charged.” State v. 

Pepka, 125 Ohio St.3d 124, 2010-Ohio-1045, 926 N.E.2d 611, ¶ 15. 

{¶ 70} The amendment to the R.C. 2929.04(A)(3) specification changed 

the underlying offense from rape to felonious assault. This amendment changed 

the elements of the specification, because proof of the defendant’s commission of 

the prior offense constituted an essential element of the R.C. 2929.04(A)(3) 

specification. See State v. Jones, 91 Ohio St.3d 335, 347, 744 N.E.2d 1163 

(2001). But the name of the crime of aggravated murder was not changed; 

Maxwell was still charged with an R.C. 2929.04(A)(3) death-penalty 

specification. The amended specification also did not change the penalty or 

degree of the offense charged. Thus, the trial court committed no plain error in 

granting the state’s motion to amend the indictment. 

{¶ 71} Nevertheless, Maxwell argues that the trial court did not comply 

with Crim.R. 7(A), because he did not properly waive his right to have the grand 

jury amend the indictment. Yet Maxwell was prosecuted by indictment and was 

sufficiently informed of the charges in the indictment. Therefore, Crim.R. 7(A) 

and its waiver requirements do not apply to this case. See Rohrbaugh, 126 Ohio 

St.3d 421, 2010-Ohio-3286, 934 N.E.2d 920, at ¶ 11. 

{¶ 72} Maxwell invokes State v. Colon, 118 Ohio St.3d 26, 2008-Ohio1624, 885 N.E.2d 917, overruled by State v. Horner, 126 Ohio St.3d 466, 2010-

Ohio-3830, 935 N.E.2d 26, ¶ 45, in arguing that he had the right to have the grand 

jury hear and consider the essential facts underlying the amendment of the 

specification. In Colon, this court held that the omission of a mens rea allegation 

in the indictment was a structural defect that rendered the conviction improper. 

Id. at ¶ 19. Maxwell fails to explain how this holding applies to this case. 

Moreover, after Maxwell raised the issue in his first brief, this court overruled 

Colon in Horner. Thus, we reject this argument. 
January Term, 2014 

23 

{¶ 73} Finally, even if the amended indictment were defective, it made no 

difference to the case outcome because the trial court merged the R.C. 

2929.04(A)(3) specification with the murder-in-retaliation specification in R.C. 

2929.04(A)(8) before the jury considered its penalty-phase verdict. We overrule 

proposition II. 

2. Ineffective assistance of counsel (Proposition of law IV) 

{¶ 74} Maxwell argues that his counsel provided ineffective assistance 

during jury selection and by failing to object to victim-impact evidence during the 

guilt phase of the trial. 

{¶ 75} 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. 

{¶ 76} Maxwell first argues that trial counsel’s performance must be 

judged by the standards set forth in the American Bar Association (“ABA”) 

Guidelines for the Appointment and Performance of Defense Counsel in Death 

Penalty Cases (Rev.Ed.2003). The stated objective of the guidelines is “to set 

forth a national standard of practice for the defense of capital cases in order to 

ensure high quality legal representation for all persons facing the possible 

imposition or execution of a death sentence by any jurisdiction.” Guideline 

1.1(A). To this end, the ABA guidelines present a detailed prescription for the 

legal representation of capital defendants. 

{¶ 77} However, the Supreme Court has held that the ABA guidelines are 

“only guides” to what reasonableness means, not its definition. Strickland at 688. 

In Bobby v. Van Hook, 558 U.S. 4, 130 S.Ct. 13, 175 L.Ed.2d 255 (2009), the 

Supreme Court reversed a Sixth Circuit Court of Appeals decision that relied on 
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the ABA guidelines to grant a capital defendant relief on the ground that his 

lawyers performed deficiently in investigating and presenting mitigating 

evidence. The Supreme Court criticized the Sixth Circuit for treating the 

guidelines “not merely as evidence of what reasonably diligent attorneys would 

do, but as inexorable commands with which all capital defense counsel ‘ “must 

fully comply.” ’ ” Id. at 8, quoting Van Hook v. Anderson, 560 F.3d 523, 526 (6th 

Cir.2009), quoting Dickerson v. Bagley, 453 F.3d 690, 693 (6th Cir.2006). The 

Supreme Court continued, “ ‘[W]hile States are free to impose whatever specific 

rules they see fit to ensure that criminal defendants are well represented, we have 

held that the Federal Constitution imposes one general requirement: that counsel 

make objectively reasonable choices.’ ” Id. at 9, quoting Roe v. Flores-Ortega, 

528 U.S. 470, 479, 120 S.Ct. 1029, 145 L.Ed.2d 985 (2000). 

{¶ 78} Accordingly, trial counsel’s performance is reviewed under the 

two-prong Strickland analysis. See also State v. Hunter, 131 Ohio St.3d 67, 2011-

Ohio-6524, 960 N.E.2d 955, ¶ 37-40. We now address Maxwell’s specific 

assertions of ineffective assistance of counsel. 

a. Improper use of peremptory challenges 

{¶ 79} Maxwell argues that his counsel were ineffective by improperly 

using peremptory challenges to eliminate women from the jury, in violation of 

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

J.E.B. v. Alabama ex rel. T.B., 511 U.S. 127, 114 S.Ct. 1419, 128 L.Ed.2d 89 

(1994). 

{¶ 80} In Batson, the United States Supreme Court held that the Equal 

Protection Clause of the United States Constitution precludes purposeful 

discrimination by the state in the exercise of its peremptory challenges so as to 

exclude members of minority groups from service on petit juries. Id. at 89. A 

court adjudicates a Batson claim in three steps. State v. Were, 118 Ohio St.3d 

448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 61. First the opponent of the 
January Term, 2014 

25 

peremptory challenge must make a prima facie case of racial discrimination. 

Second, if the trial court finds this requirement fulfilled, the proponent of the 

challenge must provide a racially neutral explanation for the challenge. Batson at 

96-98. Finally, the trial court must decide based on all the circumstances whether 

the opponent has proved purposeful racial discrimination. Id. at 98. 

{¶ 81} Batson has since been extended to defense peremptory challenges, 

Georgia v. McCollum, 505 U.S. 42, 112 S.Ct. 2348, 120 L.Ed.2d 33 (1992), and 

gender-based peremptory challenges, J.E.B., 511 U.S. at 144-145. 

{¶ 82} Maxwell argues that trial counsel violated the equal-protection 

rights of five female prospective jurors by peremptorily challenging them: Juanita 

Gibson, Gail Gibson-Gray, Fahtema Stephens, Carol Dardzinski, and Genevieve 

Torrero. Gibson, Gibson-Gray, and Stephens were also African-American. 

During jury selection, defense counsel peremptorily challenged Gibson and stated 

that she was excused “because of the tragedies that have occurred in her family.” 

Counsel did not make any comments with respect to his peremptory challenge of 

the other four female prospective jurors. 

{¶ 83} Maxwell concedes that the voir dire responses of Gibson, GibsonGray, and Stephens provided gender-neutral reasons for trial counsel’s 

peremptory challenge. Maxwell notes that Gibson had been a victim of a sex 

offense, Gibson-Gray suffered from depression and had been hospitalized for a 

mental disease, and Stephens had been a victim of domestic violence. Maxwell 

provides no other argument to support his ineffectiveness claim regarding the 

peremptory challenge of these three prospective jurors. 

{¶ 84} Maxwell’s remaining argument is that trial counsel were 

ineffective in peremptorily challenging Dardzinski and Torrero. But the record 

includes no discussion of a possible basis for counsel’s challenges of these two 

prospective jurors, because no Batson or J.E.B. objection was raised. Thus, from 

the record, we cannot determine whether trial counsel had racially neutral or 
SUPREME COURT OF OHIO

26 

gender-neutral explanations for the peremptory challenges and, if so, whether the 

trial court could have properly accepted such explanations as credible and not a 

pretext for racial or gender discrimination. Moreover, we cannot presume 

prejudice from trial counsel’s failure to raise a Batson or J.E.B. challenge. See 

State v. Burks, 10th Dist. Franklin No. 07AP-553, 2008-Ohio-2463, ¶ 57 (court 

unable to consider defense counsel’s failure to raise a Batson objection on direct 

appeal because of an inadequate record). 

{¶ 85} Yet Dardzinski’s and Torrero’s responses on the jury 

questionnaires appear to provide gender-neutral explanations to support the 

defense’s peremptory challenges. In response to the question “What is your 

opinion of our Criminal Justice System?” Dardzinski stated, “There are times it 

can be fair, but I also feel that if someone is convicted of a crime, sentencing is 

not harsh enough.” When asked about her views on the death penalty, Dardzinski 

stated, “I firmly believe in capital punishment. If someone can just go and kill 

someone I feel their life should be taken also.” When Torrero was asked about 

her feelings about the death penalty, she responded simply, “My feelings, if you 

can’t do the time don’t commit the crime.” Based on the foregoing, we hold that 

Maxwell has failed to establish that trial counsel were deficient by peremptorily 

challenging female prospective jurors. 

b. Failure to life-qualify prospective jurors 

{¶ 86} Maxwell argues that trial counsel were ineffective by failing to 

“life-qualify” a single prospective juror pursuant to Morgan v. Illinois, 504 U.S. 

719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992). Morgan held that on voir dire, 

upon the defendant’s request, the trial court must inquire into the prospective 

juror’s views on capital punishment because a prospective juror who would 

always impose the death penalty must not be empaneled. Id. at 729-734. In the 

present case, the trial court received assurances from all of the seated and 

alternate jurors that they could vote for one of the life sentences if the state failed 
January Term, 2014 

27 

to prove that the aggravating circumstances outweighed the mitigating factors. 

Thus, counsel were not deficient by failing to also question the jurors about this 

matter. 

c. Failure to object to characterization of the verdict as a recommendation 

{¶ 87} Maxwell argues that trial counsel were ineffective by failing to 

object to the trial court’s instructions indicating that the jury verdict was merely a 

recommendation, in violation of Caldwell v. Mississippi, 472 U.S. 320, 105 S.Ct. 

2633, 86 L.Ed.2d 231 (1985). But counsel did object to those instructions. 

{¶ 88} Moreover, there was no Caldwell violation. In Caldwell, the jury 

did not receive an accurate description of its role in the sentencing process due to 

the prosecutor’s suggestion that the jury’s decision to impose the death penalty 

would not be final, because the appellate court would review the sentence for 

correctness. Id. at 328-329. The court concluded that the comment 

unconstitutionally “led [the jury] to believe that the responsibility for determining 

the appropriateness of the defendant’s death rests elsewhere.” Id. But when a 

defendant claims that a Caldwell violation occurred, he or she “must show that the 

remarks to the jury improperly described the role assigned to the jury by local 

law.” Dugger v. Adams, 489 U.S. 401, 407, 109 S.Ct. 1211, 103 L.Ed.2d 435 

(1989). No Caldwell violation occurred in the present case, since the trial court’s 

instructions accurately stated the law, emphasized the jury’s responsibility to 

impose a sentence, and did not induce reliance on the prospect of appellate 

review. See State v. Hughbanks, 99 Ohio St.3d 365, 2003-Ohio-4121, 792 N.E.2d 

1081, ¶ 102. 

d. Failure to object to victim-impact testimony 

{¶ 89} Maxwell argues that trial counsel were ineffective by failing to 

object to victim-impact testimony that was presented at trial. Maxwell also 

challenges the introduction of this evidence in proposition of law X. But as 
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28 

discussed in that proposition, trial counsel were not ineffective by failing to object 

to this evidence, because its admission was either proper or not prejudicial. 

{¶ 90} Based on the foregoing, we reject proposition IV. 

3. Jury challenges (Propositions of law V and VI) 

{¶ 91} In proposition of law V, Maxwell argues that the trial court had an 

obligation to determine sua sponte whether trial counsel had gender-neutral 

reasons to peremptorily challenge five female prospective jurors. Maxwell failed 

to assert a J.E.B. challenge at trial and thus waived all but plain error. See State v. 

Ballew, 76 Ohio St.3d 244, 253, 667 N.E.2d 369 (1996) (failure to raise a Batson

challenge constituted waiver). 

{¶ 92} In raising a J.E.B. challenge, “a party alleging gender 

discrimination must make a prima facie showing of intentional discrimination 

before the party exercising the challenge is required to explain the basis for the 

strike.” J.E.B., 511 U.S. at 144-145, 114 S.Ct. 1419, 128 L.Ed.2d 89. Without an 

objection from either defense counsel or the prosecutor, the trial court had no 

obligation to raise a J.E.B. challenge on its own motion. Moreover, the record 

includes no discussion of a possible basis for counsel’s challenges, because a 

J.E.B. issue was never raised. In the absence of an adequate record, we find that 

no plain error occurred. 

{¶ 93} In proposition of law VI, Maxwell argues that the trial court erred 

in denying a defense challenge against juror Gibson because she was biased. 

Maxwell also argues that he suffered prejudice because he was forced to use a 

peremptory challenge against Gibson after the trial court denied the challenge for 

cause. 

{¶ 94} A trial court has broad discretion in determining a prospective 

juror’s ability to be impartial. State v. White, 82 Ohio St.3d 16, 20, 693 N.E.2d 

772 (1998). Former R.C. 2313.42(J) (now R.C. 2313.17(B)(9)) stated that good 

cause exists for the removal of a prospective juror when “he discloses by his 
January Term, 2014 

29 

answers that he cannot be a fair and impartial juror or will not follow the law as 

given to him by the court.” A prospective juror who has been challenged for 

cause should be excused “if the court has any doubt as to the juror’s being entirely 

unbiased.” Former R.C. 2313.43 (now R.C. 2313.17(D)); see State v. Cornwell, 

86 Ohio St.3d 560, 563, 715 N.E.2d 1144 (1999). A trial court’s ruling on a 

challenge for cause will not be disturbed on appeal absent an abuse of discretion. 

Id. 

{¶ 95} During voir dire, juror Gibson stated that she had been sexually 

assaulted about five years previously and that her assailant had been recently 

apprehended. Gibson did not have to testify against the defendant, because there 

was a plea bargain and he received a one-year sentence. Gibson stated that she 

had met with Carol Skutnik of the Cuyahoga County prosecutor’s office once or 

twice before trial. As to her dealings with the prosecutor’s office, Gibson stated, 

“They did everything the way they were supposed to I believe. I didn’t have any 

issues with them.” As a follow-up question, trial counsel asked Gibson about her 

experience with the prosecutor’s office: “Do you think that’s going to somehow 

possibly taint the way you view this case against my client?” Gibson responded, 

“Why would it? No, I don’t. One has nothing to do with [the] other.” 

{¶ 96} Maxwell argues that juror Gibson should have been excused as a 

juror because she had been the victim of a sexual assault and her previous 

relationship with the prosecutor’s office posed a risk that she would find the 

prosecutor’s case against Maxwell more credible. Yet Gibson’s answers showed 

that she would be a fair-minded juror. Nothing indicates that Gibson’s 

experiences as a sexual-assault victim would cause her to be biased against 

Maxwell. Gibson also assured the court that her prior dealings with a different 

Cuyahoga County prosecutor would not influence her consideration of Maxwell’s 

case. See State v. Allen, 73 Ohio St.3d 626, 629, 653 N.E.2d 675 (1995) 

(prospective juror whose brother was a homicide victim permitted to remain as 
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30 

capital juror after assuring the court that she could set that aside and remain 

impartial). Thus, we hold that the trial court did not abuse its discretion in 

rejecting this challenge for cause. We also reject Maxwell’s contention that the 

defense was forced to use a peremptory challenge against Gibson. 

{¶ 97} Based on the foregoing, we overrule propositions V and VI. 

4. Competency of child witness (Proposition of law III) 

{¶ 98} Maxwell argues that the trial court erred in finding that C.M. was 

competent to testify at trial. He argues that the record fails to establish that C.M. 

was able to distinguish right from wrong and understand the difference between 

the truth and a lie. 

{¶ 99} Evid.R 601 provides: “Every person is competent to be a witness 

except: (A) * * * children under ten years of age, who appear incapable of 

receiving just impressions of the facts and transactions respecting which they are 

examined, or of relating them truly.” 

{¶ 100} A trial court must conduct a voir dire examination of a child under 

ten years of age to determine the child’s competence to testify. In making this 

determination, the court must consider 

(1) the child’s ability to receive accurate impressions of fact or to 

observe acts about which he or she will testify, (2) the child’s 

ability to recollect those impressions or observations, (3) the 

child’s ability to communicate what was observed, (4) the child’s 

understanding of truth and falsity and (5) the child’s appreciation 

of his or her responsibility to be truthful. 

State v. Frazier, 61 Ohio St.3d 247, 251, 574 N.E.2d 483 (1991). A 

determination of competency is within the sound discretion of the trial court and 

will not be reversed on appeal absent a clear abuse of discretion. Id. at 250-251. 
January Term, 2014 

31 

{¶ 101} C.M. was five years old when she testified. She was one day 

short of her fourth birthday when she witnessed her mother being killed. During 

the voir dire examination to determine her competency, C.M. stated the name of 

her brother and sister and mentioned that she attended preschool and knew her 

teacher’s name. She stated that her favorite TV show was “Sponge Bob” and 

named the characters on the show and mentioned their characteristics. C.M. also 

identified photographs of the different rooms in her house. C.M. showed that she 

knew what it meant to tell the truth and stated, “You will get in trouble” if you tell 

a lie. Finally, C.M. related what happened the night her mother was killed. C.M. 

stated that her “daddy” came to the house with a gun, that he was in her “Mommy 

room,” and that the three of them went downstairs. Asked what Maxwell did with 

the gun, she stated, “He shoot my mommy.” 

{¶ 102} Following voir dire, the trial court stated, “[C.M.] is capable of 

receiving just impressions, she understands the importance of telling the truth, 

and, therefore, the Court rules that she will be allowed to testify. She’s competent 

as a witness in this case.” 

{¶ 103} Maxwell argues that the trial court abused its discretion because 

nothing shows that C.M. understood the significance of upholding the oath or the 

consequences of lying under oath. However, trial counsel objected to C.M.’s 

competency on the grounds that she was unable to adequately recall “material 

facts and impressions,” rather than her lack of understanding the significance of 

an oath. Evid.R. 103(A) requires that an objection state the specific grounds upon 

which it based. Thus, Maxwell’s objection to C.M.’s competency on different 

grounds than he now complains about constitutes waiver absent a showing of 

plain error. See State v. Wade, 53 Ohio St.2d 182, 188, 373 N.E.2d 1244 (1978). 

{¶ 104} C.M. was not asked whether she understood the significance of 

taking an oath or lying under oath. But a child “need not have religious beliefs or 

detailed knowledge of the nature of the oath.” State v. Eastham, 39 Ohio St.3d 
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32 

307, 313, 530 N.E.2d 409 (1988) (Brown, J., concurring). Rather, “it must be 

shown that the child understands the duty to tell the truth and that some 

punishment will follow if the child fails to tell the truth.” Id. C.M. demonstrated 

that she understood the concept of truthfulness and knew that there were 

consequences for not telling the truth during voir dire: 

 Q. And, [C.M.], do you know the difference between 

telling the truth and telling a lie? 

 A. Yes. 

 Q. And what’s the difference? 

 A. The difference, when you don’t tell the truth— 

 Q. Uh-huh? 

 A. —you could get in trouble. 

 Q. Okay. And if you tell the truth, what happens? Is it 

good to tell the truth? 

 A. Yes. 

 Q. Okay. What happens if you tell a lie? 

 A. You will get in trouble. 

{¶ 105} Thus, the record supports the trial court’s finding that C.M. 

understood the importance of telling the truth in finding that she was competent. 

Moreover, we do not find an abuse of discretion simply because C.M. was only 

five years old at the time of trial. See State v. Fry, 125 Ohio St.3d 163, 2010-

Ohio-1017, 926 N.E.2d 1239, ¶ 73-87 (child witness who was six years old at trial 

and five years old when he witnessed the murder competent to testify); State v. 

Allard, 75 Ohio St.3d 482, 496-497, 663 N.E.2d 1277 (1996) (child eyewitness to 

two murders who was five years old at trial and four years old when he witnessed 

the murders competent to testify). 
January Term, 2014 

33 

{¶ 106} As an alternative argument, Maxwell claims that the trial court 

abused its discretion in finding C.M. competent because her testimony showed 

she was confused and unable to accurately relate her observations. During crossexamination, C.M. stated that she sometimes went horseback riding with her 

father in the house. Maxwell claims that he went horseback riding with real 

horses and not pretend horses and that C.M.’s answers showed her confusion and 

possible fantasy. 

{¶ 107} Maxwell incorrectly asserts that this testimony was presented 

during the competency hearing. Instead, C.M.’s cross-examination about 

horseback riding occurred during the state’s case-in-chief. Once C.M. was 

deemed competent to testify, her credibility, like that of any other witness, must 

be determined by the trier of fact. 1 Giannelli, Evidence, Section 601.6, at 433 

(3d Ed.2010). Thus, we reject Maxwell’s claim that this segment of C.M.’s crossexamination shows that C.M. was incompetent. 

{¶ 108} In conclusion, we hold that the trial court committed no plain 

error in finding that C.M. was competent to testify. Proposition III is overruled. 

5. Miranda compliance (Proposition of law XIII) 

{¶ 109} Maxwell argues that the trial court erred in admitting his 

statements to police at the time of his arrest, because the police had failed to 

advise him of his Miranda rights before questioning him. Miranda v. Arizona, 

384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966). 

{¶ 110} Before trial, Maxwell moved to suppress statements that he made 

in response to police questioning about whether he was armed at the time of his 

arrest. During the suppression hearing, Agent Robert Riddlebarger testified that 

on December 16, 2005, he and six other members of the Cleveland/Cuyahoga 

County Fugitive/Gang Task Force went to a home on Jeffries Avenue in 

Cleveland to arrest Maxwell. Task-force members entered the house after 

knocking on the door and not receiving a response. According to Riddlebarger, 
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34 

the task force was “looking for persons, or * * * anything that might be used as a 

weapon against us.” The team members searched the basement and the first-floor 

area and found nothing. The entire task force then went upstairs to clear the 

second floor. The team members separated and searched the two bedrooms on 

that floor. 

{¶ 111} Team members cleared both bedrooms. In one bedroom, team 

members noticed a crawl-space door behind the bed. They moved the bed, 

opened the door, and found Maxwell. Riddlebarger and Det. Zickes pulled 

Maxwell out of the crawl space, placed him face down on the bed, and handcuffed 

him. Riddlebarger testified, “At about the same time as he’s handcuffed, * * * 

Detective Zickes asked Mr. Maxwell whether or not he was armed.” Maxwell 

responded that “he did not have a gun anymore.” Riddlebarger then patted 

Maxwell down for weapons and searched his clothing to make sure that he did not 

have any weapons on him. During the pat-down, Maxwell stated that he “had 

gotten rid of the gun that he once had.” 

{¶ 112} The trial court overruled the defense motion to suppress 

Maxwell’s statements. The court stated, “In this case, as in [New York v. Quarles, 

467 U.S. 649, 659, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984)], there was a public 

safety exception to the requirement that Miranda warnings be given before a 

subject’s answers could be admitted into evidence * * *.” Later, Riddlebarger 

testified during the state’s case-in-chief regarding Maxwell’s statements at the 

time of his arrest. 

{¶ 113} Under Miranda, 384 U.S. at 444, 86 S.Ct. 1602, 16 L.Ed.2d 694, 

“the prosecution may not use statements, whether exculpatory or inculpatory, 

stemming from custodial interrogation of the defendant unless it demonstrates the 

use of procedural safeguards effective to secure the privilege against selfincrimination.” However, when officers ask “questions necessary to secure their 

own safety or the safety of the public” as opposed to “questions designed solely to 
January Term, 2014 

35 

elicit testimonial evidence from a suspect,” they do not need to provide the 

warnings required by Miranda. New York v. Quarles, 467 U.S. 649, 659, 104 

S.Ct. 2626, 81 L.Ed.2d 550 (1984). 

{¶ 114} In Quarles, the police apprehended a rape suspect in a 

supermarket and discovered that he was wearing an empty shoulder holster. 

Before reading Miranda rights to the suspect, an officer asked the suspect where 

the gun was located. The suspect nodded toward some empty cartons and stated, 

“[T]he gun is over there.” Quarles at 652. In upholding the admissibility of the 

defendant’s statement, the court stated: 

 The police in this case * * * were confronted with the 

immediate necessity of ascertaining the whereabouts of a gun 

which they had every reason to believe the suspect had just 

removed from his empty holster and discarded in the supermarket. 

So long as the gun was concealed somewhere in the supermarket, 

with its actual whereabouts unknown, it obviously posed more than 

one danger to the public safety: an accomplice might make use of 

it, a customer or employee might later come upon it. 

Id. at 657. 

{¶ 115} Recognizing a narrow exception to the Miranda rule, Quarles

reasoned that “the need for answers to questions in a situation posing a threat to 

the public safety outweighs the need for the prophylactic rule protecting the Fifth 

Amendment’s privilege against self-incrimination.” Id. In so holding, the court 

stated: 

We decline to place officers * * * in the untenable position of 

having to consider, often in a matter of seconds, whether it best 
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36 

serves society for them to ask the necessary questions without the 

Miranda warnings and render whatever probative evidence they 

uncover inadmissible, or for them to give the warnings in order to 

preserve the admissibility of evidence they might uncover but 

possibly damage or destroy their ability to obtain that evidence and 

neutralize the volatile situation confronting them. 

Id. at 657-658. Quarles indicated that this limited exception will not be difficult 

for police officers to apply “because in each case it will be circumscribed by the 

exigency which justifies it.” Id. at 658. 

{¶ 116} Maxwell argues that Quarles did not justify the police questioning 

him about whether he was armed without first advising him of his Miranda rights. 

Maxwell argues that he was handcuffed before he was asked about the weapon. 

He also argues that the public-safety exception does not apply, because he was 

arrested inside a private home that had been completely secured by the police. 

{¶ 117} In United States v. Williams, 483 F.3d 425, 428 (6th Cir.2007), 

the United States Court of Appeals for the Sixth Circuit set forth the standard that 

the government must satisfy in order for custodial statements made before any 

Miranda warnings to be admissible under the Quarles public-safety exception. 

“For an officer to have a reasonable belief that he is in danger,” and thus for the 

exception to apply, “he must have reason to believe (1) that the defendant might 

have (or recently have had) a weapon, and (2) that someone other than police 

might gain access to that weapon and inflict harm with it.” Id. at 428. Williams

stated that this evaluation of the applicability of the Quarles exception “takes into 

consideration a number of factors, which may include the known history and 

characteristics of the suspect, the known facts and circumstances of the alleged 
January Term, 2014 

37 

crime, and the facts and circumstances confronted by the officer when he 

undertakes the arrest.”1 Id. 

{¶ 118} In the present case, the first condition was satisfied because the 

members of the task force had a reasonable belief that Maxwell might possess a 

weapon. Evidence suggested that he possessed weapons and had recently shot 

Nichole. But the second condition was not met. When Maxwell was questioned, 

the task force had secured the premises, performed a sweep of the house, and 

determined that no one else was present. Maxwell was handcuffed and 

surrounded by several task-force members. The house was under full control of 

the agents during the questioning. These facts contrast with those of Quarles, in 

which a discarded gun in a supermarket presented a threat to public safety. 

{¶ 119} Nevertheless, the state argues that Det. Zickes could ask Maxwell 

whether or not he was armed because an officer’s safety is always at risk, 

especially when the arrest occurs in the defendant’s home. But the Williams test 

provides that in applying the Quarles exception, it is necessary to consider the 

facts and circumstances confronted by the police at the time of arrest, and here, 

nothing suggested that Maxwell might gain access to a weapon and inflict harm 

with it. 

{¶ 120} In United States v. Kellogg, 306 Fed.Appx. 916 (6th Cir.2009), 

the court evaluated a similar fact situation involving the application of the publicsafety exception. In Kellogg, the police asked the defendant, who was suspected 

of bank robbery, whether he had a gun or drugs on the premises before searching 

his home. Id. at 918. The court rejected claims that the public-safety exception 

 

1. Some Ohio courts of appeals have adopted a four-part test to determine whether the publicsafety exception applies: “ ‘In order to establish that the exception is warranted in any given case, 

the State must show that: (1) there was an objectively reasonable need to protect the police or the 

public, (2) from an immediate danger, (3) associated with a weapon, and that (4) the questions 

asked were related to that danger and reasonably necessary to secure public safety.’ (Emphasis 

sic.)” State v. Garnett, 10th Dist. Franklin No. 09AP-1149, 2010-Ohio-5865, ¶ 32, quoting State 

v. Jergens, 2d Dist. No. 13294 (Sept. 3, 1993). 
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38 

allowed defendant’s incriminating responses to be admitted at trial. The court 

stated that the suspicion that the defendant had recently committed a bank robbery 

satisfied the first prong of the Williams standard. Id. at 924. However, the court 

stated that the second prong of the Williams standard was not met: 

[S]ince the arresting officers had just ordered all of the occupants 

out of the duplex, handcuffed Kellogg and conducted a security 

sweep of the residence, there was no reason to believe that a 

weapon would be immediately accessible to individuals other than 

police. Thus, the immediate danger to the officers or the public 

was insufficient to justify the officers’ failure to inform Kellogg of 

his rights prior to eliciting incriminating statements regarding the 

items in the duplex. 

Id. See also United States v. Brathwaite, 458 F.3d 376, 382 (5th Cir.2006), fn. 8 

(rejecting application of the public-safety exception where police secured the 

suspect and his coresidents, conducted two security sweeps, and gained control 

over the residence). 

{¶ 121} Maxwell made two statements after Det. Zickes asked him 

whether he was armed. His first statement, that he did not have a gun anymore, 

was in direct response to Zickes’s question. His second statement, that “he got rid 

of the gun that he once had,” was made while Riddlebarger was patting him 

down. Riddlebarger testified that this was an unsolicited response and was not 

made in response to further questioning. 

{¶ 122} The admissibility of Maxwell’s second statement depends on 

whether it was a continuation of his response to police questioning about whether 

he was armed. In determining whether one statement is a continuation of the 

previous statement, a court should consider factors such as whether the content in 
January Term, 2014 

39 

the statements overlap, the timing and setting of each statement, and the 

continuity of personnel. See State v. Clark, 7th Dist. Mahoning No. 08MA15, 

2009-Ohio-3328, 2009 WL 1915211, ¶ 24. Maxwell’s second response was made 

seconds after his first response, addressed the same matter, and was made to the 

same officers in the room. Thus, we conclude that both statements were 

improperly obtained in violation of Miranda. 

{¶ 123} Because Maxwell’s statements were improperly admitted into 

evidence, we must determine whether the error was reversible or harmless. “A 

constitutional error can be held harmless if we determine that it was harmless 

beyond a reasonable doubt.” State v. Conway, 108 Ohio St.3d 214, 2006-Ohio791, 842 N.E.2d 996, ¶ 78, citing Chapman v. California, 386 U.S. 18, 24, 87 

S.Ct. 824, 17 L.Ed.2d 705 (1967). We hold that the erroneous admission of 

Maxwell’s statements was harmless beyond a reasonable doubt in view of the 

remaining evidence establishing Maxwell’s guilt. 

{¶ 124} Properly admitted evidence provided overwhelming evidence of 

Maxwell’s guilt. Gregg testified that Maxwell was very upset after Nichole 

testified at the grand jury and that he said, “[T]he bitch is going to make me kill 

her.” He also asked Gregg where he could get a gun. Four days later, Maxwell 

violated a temporary protection order and went to Nichole’s house with a gun. 

Lauretta confronted Maxwell at the house, Maxwell fired shots, and she observed 

Maxwell standing over Nichole’s body before he fled the scene. C.M. also 

witnessed Maxwell shooting her mother. Moreover, Maxwell called Gregg and 

admitted shooting Nichole that night. 

{¶ 125} Based on the foregoing, we overrule proposition XIII. 

 
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40 

6. Admissibility of Nichole’s phone conversation with Maxwell (Proposition of 

law XIV) 

{¶ 126} Maxwell argues that the trial court erred by admitting a segment 

of Nichole’s telephone conversation with him, because it was inadmissible 

hearsay and violated his Sixth Amendment right to confrontation. 

{¶ 127} On November 23, 2005, Nichole testified before the grand jury 

about the felonious assault. That evening, Maxwell called Gregg and told him 

that he had been trying to talk to Nichole about her grand jury testimony but had 

been unable to contact her. Maxwell then phoned Nichole while Gregg remained 

on the line, and Gregg heard their conversation. Gregg testified as follows: 

 Q: And did Mr. Maxwell say anything to Ms. McCorkle? 

 A: Yes, he did. 

 Q: What did he say? 

 A: He asked her what had happened in court that day. 

 Q: Did she respond? 

 Mr. Luskin [defense counsel]: Objection. 

 A: Yes, she did. 

 The Court: Overruled. 

 Q: What did she say? 

Mr. Rein [defense counsel]: Objection. 

The Court: Overruled. 

 A: She had told him that—she was very sincere when she 

said it—but she said I told the truth. I had to tell the truth. 

 Q: After she tells him that, how long after that—how long 

was the conversation all together? 

 A: A few minutes, not real long. Four or five minutes. 
January Term, 2014 

41 

 Q: Was there much conversation after she told him that she 

had to tell the truth? 

A: No, there was not. 

{¶ 128} Maxwell argues that Nichole’s statement that she “told the truth” 

was inadmissible hearsay and constituted a testimonial statement that violated the 

Confrontation Clause in violation of Crawford 541 U.S. 36, 124 S.Ct. 1354, 158 

L.Ed.2d 177. The state argues that Nichole’s statement was not admitted for the 

truth of the matter asserted and was not a testimonial statement. 

{¶ 129} Out-of-court statements offered to prove the truth of the matter 

asserted are generally inadmissible as hearsay. Evid.R. 801 and 802. If a 

statement is not offered for the truth of the matter asserted, however, it is not 

prohibited by the hearsay rule and will be admissible, subject to the standards 

governing relevancy and undue prejudice. Evid.R. 402 and 403; State v. LaMar, 

95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 59. “It is well established 

that extrajudicial statements made by an out-of-court declarant are properly 

admissible to explain the actions of a witness to whom the statement was 

directed.” State v. Thomas, 61 Ohio St.2d 223, 232, 400 N.E.2d 401 (1980); see 

also 2 Giannelli, Evidence, Section 801.10, at 138 (3d Ed.2010). 

{¶ 130} Nichole’s statement that she testified truthfully before the grand 

jury was not offered to prove the truth of the matter asserted but to prove the 

effect of the statement on the listener, Maxwell. The statement was relevant 

because it set into motion the chain of events leading to the confrontation between 

Maxwell and Nichole and her shooting a few nights later. Thus, the trial court did 

not err in admitting Nichole’s statement. 

{¶ 131} We also reject Maxwell’s Crawford claim. In Crawford, the 

Supreme Court held that it is a violation of the Confrontation Clause to admit 

“testimonial statements of a witness who did not appear at trial unless he was 
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42 

unavailable to testify and the defendant had had a prior opportunity for crossexamination.” Crawford, 541 U.S. at 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177. 

Crawford also stated that the Confrontation Clause “does not bar the use of 

testimonial statements for purposes other than establishing the truth of the matter 

asserted.” Id. at 59, fn. 9, citing Tennessee v. Street, 471 U.S. 409, 414, 105 S.Ct. 

2078, 85 L.Ed.2d 425 (1985). 

{¶ 132} Nichole’s statement did not implicate Maxwell’s confrontation 

rights. Nichole’s out-of-court statement, repeated by Gregg, served the purpose 

of explaining how certain events came to pass or why Maxwell confronted and 

shot Nichole. See United States v. Cromer, 389 F.3d 662, 676 (6th Cir.2004). 

Because the statements were not offered to establish the truth of the matter 

asserted, the Confrontation Clause did not apply. 

{¶ 133} Based on the foregoing, we overrule proposition XIV. 

7. Victim-impact testimony (Proposition of law X) 

{¶ 134} Maxwell argues that the trial court erred in admitting victimimpact testimony during the guilt phase of the trial. Except where noted, defense 

counsel failed to object to such evidence and thus waived all but plain error. See

State v. Reynolds, 80 Ohio St.3d 670, 679, 687 N.E.2d 1358 (1998). 

{¶ 135} “Evidence relating to the facts attendant to the offense is ‘clearly 

admissible’ during the guilt phase, even though it might be characterized as 

victim-impact evidence.” State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio6046, 837 N.E.2d 315, ¶ 98, quoting State v. Fautenberry, 72 Ohio St.3d 435, 

440, 650 N.E.2d 878 (1995). 

{¶ 136} First, Maxwell complains that Nichole’s sister, Michelle Kenney, 

provided improper victim-impact testimony about family history and other 

personal matters. Michelle mentioned the names and ages of Nichole’s children 

and her siblings and stated that Nichole had been married and divorced but kept 

her married name. Michelle also described the inside of Nichole’s home at 1046 
January Term, 2014 

43 

East 146th Street. Maxwell also complains that Michelle testified that Nichole 

wanted the women’s biological father, Heinz Kenney, to move into her house 

after he was released from prison in July 2005 “because he was sick and 

everything.” 

{¶ 137} The testimony about Nichole’s family and her divorce provided 

background information about Nichole’s relationship with Maxwell and the 

witnesses who testified. Testimony about family members living at the house and 

information about the layout of the house showed the people who had access to 

the house and described where the shooting occurred. Moreover, none of this 

testimony was overly emotional. Thus, we hold that no plain error occurred. 

{¶ 138} Second, Maxwell contends that Michelle and Lauretta Kenney 

improperly testified about their frequent phone contact with Nichole. Michelle 

testified that she had daily contact with Nichole and talked with her on the phone 

every day. Lauretta also testified that she had daily contact with Nichole and 

spoke to her on the phone “[f]our or five times a day.” 

{¶ 139} Maxwell also asserts that Michelle improperly testified that after 

the shooting, she went to the hospital and saw Nichole “laying on an ambulance 

gurney * * * and she had all these tubes in her and she had a hose in her head and 

it was just blood everywhere.” Michelle also mentioned that family members 

discussed the possibility that they might have to decide whether to continue 

Nichole on life support. However, Nichole died before that decision was 

necessary. 

{¶ 140} Michelle’s and Lauretta’s frequent phone contact with Nichole 

was relevant in explaining their awareness of and involvement in the events 

leading up to Nichole’s murder. Michelle’s graphic description of Nichole’s 

medical condition at the hospital and her testimony about the family discussion on 

discontinuing life support were of more questionable relevance. But we hold that 

no plain error resulted from admitting this testimony. 
SUPREME COURT OF OHIO

44 

{¶ 141} Third, Maxwell argues that the prosecutor improperly had C.M. 

identify a photograph of her mother. However, Maxwell is incorrect. C.M. 

identified a photograph of the bloodstained carpet where her mother was lying 

after she had been shot. Nichole’s body was not in the picture. Thus, we reject 

this claim. 

{¶ 142} Finally, Maxwell complains that Dr. Joseph Felo, the chief deputy 

coroner for Cuyahoga County, improperly testified about the pain that Nichole 

must have suffered from one of the gunshot wounds. Dr. Felo testified that one of 

the gunshot wounds went through the right eyeball and that there would have 

been “excruciating pain associated with that.” The trial court sustained a defense 

objection to this testimony and instructed the jury to disregard the answer. 

{¶ 143} Maxwell suffered no prejudice from Dr. Felo’s testimony about 

pain that Nichole suffered, because the trial court instructed the jurors to disregard 

Dr. Felo’s comments. See State v. Heinish, 50 Ohio St.3d 231, 241, 553 N.E.2d 

1026 (1990) (“Where a jury is cautioned and a correction is given to the jury, the 

effect of improper evidence may be cured”). The trial court also sustained 

objections on two other occasions when Dr. Felo began to refer to the victim’s 

pain. 

{¶ 144} Based on the foregoing, we overrule proposition X. 

8. Sufficiency of the evidence (Proposition of law VII) 

a. Evidence of prior calculation and design 

{¶ 145} Maxwell argues that the state failed to prove that he murdered 

Nichole with prior calculation and design as charged in Count One. 

{¶ 146} When a court reviews a record for sufficiency, “[t]he relevant 

inquiry is whether, after viewing the evidence in a light most favorable to the 

prosecution, any rational trier of fact could have found the essential elements of 

the crime proven beyond a reasonable doubt.” State v. Jenks, 61 Ohio St.3d 259, 

574 N.E.2d 492 (1991), paragraph two of the syllabus, following Jackson v. 
January Term, 2014 

45 

Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979). “[T]he weight to 

be given the evidence and the credibility of the witnesses are primarily for the 

trier of the facts.” State v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), 

paragraph one of the syllabus. 

{¶ 147} Maxwell was convicted of one count of aggravated murder under 

R.C. 2903.01(A), which states: “No person shall purposely, and with prior 

calculation and design, cause the death of another * * *.” 

{¶ 148} No bright-line test exists that “emphatically distinguishes between 

the presence or absence of ‘prior calculation and design.’ Instead, each case turns 

on the particular facts and evidence presented at trial.” State v. Taylor, 78 Ohio 

St.3d 15, 20, 676 N.E.2d 82 (1997). However, when the evidence presented at 

trial “reveals the presence of sufficient time and opportunity for the planning of 

an act of homicide to constitute prior calculation, and the circumstances 

surrounding the homicide show a scheme designed to implement the calculated 

decision to kill, a finding by the trier of fact of prior calculation and design is 

justified.” State v. Cotton, 56 Ohio St.2d 8, 381 N.E.2d 190 (1978), paragraph 

three of the syllabus. 

{¶ 149} Maxwell argues that the evidence shows that he spontaneously 

shot Nichole after observing her with another man, kissing him goodnight, and 

receiving phone calls from him at home. Thus, Maxwell asserts that the evidence 

is insufficient to support a conviction of prior calculation and design. 

{¶ 150} Maxwell’s argument overlooks the evidence showing that he shot 

Nichole in retaliation for her failure to change her grand jury testimony about the 

felonious assault. Gregg testified that at Maxwell’s behest, he had contacted 

Nichole and asked her to “stick to the story that it was a simple domestic” 

incident when she testified before the grand jury. Nichole later told Maxwell that 

she had told the truth during her grand jury testimony. Maxwell then told Gregg 
SUPREME COURT OF OHIO

46 

that “the bitch was going to make him kill her” and asked Gregg where he could 

get a gun. Maxwell went to Nichole’s home and killed her four days later. 

{¶ 151} We have previously held that a defendant’s threat to obtain a 

weapon and kill his victim and his later actions carrying out that threat are enough 

to prove prior calculation and design. Conway, 108 Ohio St.3d 214, 2006-Ohio791, 842 N.E.2d 996, at ¶ 45; State v. Sowell, 39 Ohio St.3d 322, 333, 530 N.E.2d 

1294 (1988). Maxwell announced his intention to kill Nichole, and he never 

abandoned that plan. Moreover, according to Gregg’s testimony, Maxwell told 

Gregg that when he shot Nichole “she fell down and * * * she moved and then he 

shot her again.” The second gunshot belies Maxwell’s argument that the murder 

was spontaneous, and his actions show that he was carrying out his stated 

intention to kill Nichole for testifying against him. 

{¶ 152} In Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, 

we addressed a similar fact situation. On July 18, 2005, Fry and Tamela Hardison 

had a fight in the apartment where they lived. Id. at ¶ 7. Hardison then filed 

charges against Fry for assault and aggravated menacing. Id. at ¶ 148. While in 

pretrial custody, Fry told Hardison to go to court and drop the charges. On July 

21, Fry told Hardison that he had received paperwork that she had signed saying 

that he had assaulted and threatened her. During that conversation, Fry told 

Hardison, “I got two of them under my belt * * * toe tags,” meaning that he had 

killed two people. He then told Hardison, “Fix this.” Id. at ¶ 150. Fry was 

released from jail on July 25 and killed Hardison on July 31. We upheld the 

sufficiency of the evidence and stated that there was sufficient time, reflection, 

and activity involved in Hardison’s murder to show that Fry killed her with prior 

calculation and design. Id. at ¶ 157. 

{¶ 153} Just as in Fry, Maxwell demanded that Nichole lie to the grand 

jury to have his charges reduced. Maxwell later learned that Nichole had told the 

truth during her grand jury testimony, and he then expressed his intent to kill 
January Term, 2014 

47 

Nichole. As in Fry, several days elapsed, and then Maxwell went to Nichole’s 

house and killed her. Construing the evidence in a light most favorable to the 

prosecution, a rational juror could have concluded beyond a reasonable doubt that 

Maxwell had formulated a plan to kill Nichole. Thus, we hold that there was 

sufficient time, reflection, and activity involved in Nichole’s murder to show that 

Maxwell killed her with prior calculation and design. 

b. Evidence proving witness-murder specification (Proposition of law VIII) 

{¶ 154} Maxwell argues that the state failed to prove his guilt on the 

witness-murder specification. 

{¶ 155} Maxwell was convicted of the R.C. 2929.04(A)(8) death-penalty 

specification that the victim “was a witness to an offense and was purposely killed 

in retaliation for the victim’s testimony in any criminal proceeding.” 

{¶ 156} Maxwell continues to argue that the evidence showed that he 

killed Nichole because he was upset with her for socializing with another man and 

kissing him goodnight. Maxwell asserts that this motive superseded evidence that 

he murdered Nichole in retaliation for her grand jury testimony. Thus, he argues 

that the evidence is insufficient to support an (A)(8) finding. 

{¶ 157} As discussed in proposition of law VII, the evidence shows that 

Gregg, at Maxwell’s behest, contacted Nichole and attempted to persuade her to 

change her grand jury testimony to obtain a charge reduction against Maxwell. 

Upon learning that Nichole did not change her testimony, Maxwell stated his 

intent to kill Nichole and asked Gregg where he could get a gun. Maxwell shot 

and killed Nichole four days later. 

{¶ 158} Although the evidence supports a finding that Maxwell killed 

Nichole for testifying against him, the state was not required to prove that that 

was Maxwell’s sole reason for killing Nichole. Fry, 125 Ohio St.3d 163, 2010-

Ohio-1017, 926 N.E.2d 1239, at ¶ 153. Even assuming that jealousy was also a 
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motive for the murder, we hold that the state presented sufficient evidence to 

prove the R.C. 2929.04(A)(8) specification. 

c. Elements of witness-murder specification (Proposition of law IX) 

{¶ 159} Maxwell maintains that the state failed to present sufficient 

evidence to prove the R.C. 2929.04(A)(8) specification, that he killed Nichole to 

prevent her “testimony in any criminal proceeding.” 

{¶ 160} Nichole testified before the grand jury on Wednesday, November 

23, 2005. According to Brian Mooney, Cuyahoga County assistant prosecutor at 

the time of the murder, the grand jury returned a true bill against Maxwell for 

felonious assault, abduction, and domestic violence on November 23. Because 

the next day was Thanksgiving, the indictment was not filed with the clerk of 

court until Monday, November 28, 2005. 

{¶ 161} Maxwell argues that the (A)(8) specification is inapplicable 

because the indictment for felonious assault was not filed until the day after the 

murder and no criminal proceeding was underway. In support of this argument, 

Maxwell cites R.C. 2901.13(E), which states, “A prosecution is commenced on 

the date an indictment is returned or an information filed * * *.” He also cites 

Crim.R. 55(A), which states: “An action is commenced for purposes of this rule 

by the earlier of, (a) the filing of a complaint, * * * indictment, or information 

with the clerk, or (b) the receipt by the clerk of the court of common pleas of a 

bind over order under Rule 5(B)(4)(a).” 

{¶ 162} R.C. 2929.04(A)(8) does not require that a criminal action be 

pending when the defendant kills the witness. Indeed, a defendant can be charged 

with the witness-murder specification in situations in which no criminal 

proceeding has been initiated at the time the victim was murdered. State v. 

Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶ 55. The statute 

requires only (1) that the victim was a witness to an offense and (2) that the 
January Term, 2014 

49 

purpose of killing the witness was to prevent the victim from testifying in a 

criminal proceeding. Id. 

{¶ 163} As discussed above, the evidence established that Maxwell killed 

Nichole because she testified against him before the grand jury. Accordingly, we 

hold that Maxwell’s guilt of the R.C. 2929.04(A)(8) specification was established 

by proof beyond a reasonable doubt even though the indictment for felonious 

assault was not filed until the day after Nichole’s murder. 

{¶ 164} Based on the foregoing, we reject propositions VII, VIII, and IX. 

B. Penalty-phase issues 

1. Ineffective assistance of counsel (Proposition of law I) 

{¶ 165} Maxwell argues that his counsel failed to develop and present 

evidence of his mental retardation, failed to investigate and present mitigating 

evidence, and committed other errors during the penalty phase. 

a. Failure to present evidence of mental retardation 

{¶ 166} Maxwell argues that trial counsel failed to properly develop 

evidence showing that he was mentally retarded and failed to request a hearing to 

determine whether he was mentally retarded pursuant to Atkins v. Virginia, 536 

U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). He also argues that trial 

counsel failed to present such evidence during mitigation. Maxwell relies on 

evidence presented during his competency proceedings and testimony presented 

during the penalty phase. 

(1) Facts

{¶ 167} During the competency hearing, Dr. Michael Aronoff, a 

psychologist at the Court Psychiatric Clinic, testified that he had evaluated 

Maxwell and administered the Wechsler Abbreviated Scale of Intelligence. These 

test results showed that Maxwell had a full-scale IQ score of 72, which is in the 

borderline range. He also had a verbal IQ score of 68, which is in the range of 

mild mental retardation, and a performance IQ score of 83, which is in the low 
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average range. Dr. Aronoff testified that earlier IQ test scores were not found in 

Maxwell’s school records or any other records. 

{¶ 168} Dr. Aronoff administered other tests, including the Competency 

Assessment to Stand Trial for Defendants with Mental Retardation 

(“CAST*MR”). Dr. Aronoff testified that Maxwell’s low score on that test was 

significant “because he didn’t come up with a mentally retarded IQ score and he’s 

had prior experience with the legal system.” Due to the possibility of malingering 

on the CAST*MR, Dr. Aronoff recommended that Maxwell be referred to the 

court evaluation unit of the North Coast Behavioral Health Care System for a 20-

day inpatient competency evaluation. The trial court ordered that Maxwell be 

referred for such treatment. 

{¶ 169} Dr. Alice Cook, a clinical psychologist, evaluated Maxwell during 

his inpatient treatment at North Coast. During the competency hearing, Dr. Cook 

testified that she performed no additional testing but was aware that Maxwell had 

attained a verbal IQ score of 68 during earlier testing. But Dr. Cook indicated 

that Maxwell was not mentally retarded. She stated, “In order to have a diagnoses 

of mental retardation, it needed to be identified prior to the age of 18, and there 

was no indication of any records from anyplace that he had been identified prior 

to age 18 as being mentally retarded.” 

{¶ 170} During the competency proceedings, defense counsel mentioned 

that Dr. John Fabian, a board-certified psychologist, had also met with Maxwell 

to assess his condition. Dr. Fabian was not called as a witness, and his assessment 

of Maxwell was never introduced. Following the competency hearing, the trial 

court ruled that Maxwell was competent to stand trial. Defense counsel presented 

no argument that Maxwell was mentally retarded and did not request an Atkins

hearing. 

{¶ 171} During the penalty phase, Dr. Sandra McPherson, a clinical 

psychologist, testified as a defense mitigation witness. Dr. McPherson evaluated 
January Term, 2014 

51 

Maxwell and administered the Wechsler Adult Intelligence Scale and wide-range 

achievement test. Dr. McPherson testified that Maxwell attained a full-scale IQ 

score of 84, which placed him in the low average range. Maxwell also attained a 

performance IQ score of 95 and a verbal IQ score of 77. 

(2) Analysis

{¶ 172} On June 20, 2002, the Supreme Court of the United States ruled 

that the execution of a mentally retarded criminal violates the Eighth 

Amendment’s ban on cruel and unusual punishments. Atkins v. Virginia, 536 

U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335. 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). 

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

1011, this court developed procedures and substantive standards for resolving 

Atkins claims. Lott adopted a three-part test, which had been cited with approval 

in Atkins, 536 U.S. at 308, fn. 3, that 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. Lott 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 

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. 
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Id. 

{¶ 174} First, Maxwell argues that trial counsel were ineffective by failing 

to request an Atkins hearing because IQ testing administered by Dr. Aronoff 

showed that he had a verbal IQ score of 68. 

{¶ 175} In order for counsel’s inadequate performance to constitute a 

Sixth Amendment violation, Maxwell must show that counsel’s performance was 

deficient and prejudiced him. Strickland, 466 U.S. at 687, 104 S.Ct. 2052, 80 

L.Ed.2d 674. Strickland requires that courts “apply[] a heavy measure of 

deference to counsel’s judgments” and “indulge a strong presumption that 

counsel’s conduct falls within the wide range of reasonable professional 

assistance.” Id. at 691 and 689. 

{¶ 176} Maxwell fails to establish that trial counsel were deficient in 

failing to request an Atkins hearing. The results of two full-scale IQ tests showed 

that Maxwell’s IQ was above 70. Dr. McPherson testified that Maxwell’s IQ 

score was 84, which is significantly higher than the Lott cutoff level. There is 

also no evidence that Maxwell suffered “significant limitations in two or more 

adaptive skills.” Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, at 

¶ 2. Finally, Dr. Cook testified that Maxwell is not mentally retarded, because 

there was “no indication” of “any records from anyplace that he had been 

identified prior to age 18 as being mentally retarded.” Id. 

{¶ 177} Maxwell argues that trial counsel were ineffective by allowing 

Maxwell to be retested after earlier testing had potentially excluded him from 

death eligibility. But Maxwell has not shown how Dr. McPherson’s testing 

amounted to deficient performance. Dr. McPherson was an expert in this area, 

and she determined which tests to administer. See State v. Leonard, 104 Ohio 

St.3d 54, 2004-Ohio-6235, 818 N.E.2d 229, ¶ 150. 

{¶ 178} Moreover, if trial counsel had requested an Atkins hearing, the 

trial court would have conducted a de novo review of the evidence in determining 
January Term, 2014 

53 

whether the defendant was mentally retarded. See Lott at ¶ 18. Lott states, “The 

trial court should rely on professional evaluations of [a defendant’s] mental status, 

and consider expert testimony, appointing experts if necessary in deciding this 

matter.” Id. Thus, it is very likely that the trial court would have appointed other 

experts to evaluate Maxwell and further testing would have been administered to 

determine whether he was mentally retarded. Such testing would have likely 

included the use of more definitive tests, like the Wechsler Adult Intelligence 

scale, which Dr. McPherson administered. 

{¶ 179} Maxwell also argues the additional test results were invalid 

because they failed to take into account the “Flynn effect.” The Flynn effect 

postulates that IQ scores rise over time and that IQ tests that are not renormed to 

adjust for rising IQ levels will overstate a testee’s IQ. Walker v. True, 399 F.3d 

315, 322 (4th Cir.2005). However, nothing about Maxwell’s Flynn-effect 

adjusted IQ scores was presented during the trial or appears in the record. “A 

reviewing court cannot add matter to the record before it, which was not part of 

the trial court’s proceedings, and then decide the appeal on the basis of the new 

matter.” State v. Ishmail, 54 Ohio St.2d 402, 377 N.E.2d 500 (1978), paragraph 

one of the syllabus. Thus, these speculative claims are rejected. 

{¶ 180} Second, Maxwell argues that trial counsel were ineffective in 

failing to present evidence of his low intelligence during the penalty phase. 

Maxwell claims that counsel were deficient by failing to call Dr. Aronoff as a 

mitigation witness to testify about Maxwell’s borderline intellectual functioning 

and his low IQ scores. “The defense decision to call or not call a mitigation 

witness is a matter of trial strategy. * * * Likewise, the scope of questioning is 

generally a matter left to the discretion of defense counsel. Debatable trial tactics 

generally do not constitute ineffective assistance of counsel.” State v. Elmore, 

111 Ohio St.3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 116. 
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{¶ 181} While it is unclear why trial counsel did not call Dr. Aronoff as a 

witness, trial counsel could have legitimately decided not to call Dr. Aronoff as a 

witness in order to avoid further discussion about Maxwell’s possible malingering 

when taking the CAST*MR test. Moreover, Dr. McPherson discussed Dr. 

Aronoff’s evaluations and findings that documented Maxwell’s “borderline 

intellectual functioning * * * at the time based on the WASI, a shorter form of the 

Wechsler Adult Intelligence Scale.” The decision to present Dr. McPherson’s 

summary of Dr. Aronoff’s findings instead of calling Dr. Aronoff as a witness 

was a matter of trial strategy and does not constitute ineffective assistance. See 

State v. Keith, 79 Ohio St.3d 514, 530, 684 N.E.2d 47 (1997) (“the presentation of 

mitigating evidence is a matter of trial strategy”). 

{¶ 182} In addition, the record shows that the decision not to call Dr. 

Aronoff as a witness did not result from a lack of investigation. Maxwell’s 

lawyers knew that Dr. Aronoff existed and what his testimony would be. Because 

Maxwell’s counsel knew what Dr. Aronoff had to say, counsel’s decision not to 

call him as a witness during the penalty phase is “ ‘virtually unchallengeable.’ ” 

State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 158, 

quoting Strickland, 466 U.S. at 690, 104 S.Ct. 2052, 80 L.Ed.2d 674. 

{¶ 183} Maxwell cites the ABA guidelines, which state, “Counsel’s duty 

to investigate and present mitigating evidence is now well established.” 

Guidelines for the Appointment and Performance of Defense Counsel in Death 

Penalty Cases, Guideline 10.7, comment, 80 (Rev.Ed.2003). Maxwell argues that 

these guidelines required trial counsel to present Dr. Aronoff’s testimony about 

Maxwell’s low IQ scores. But the ABA guidelines are not “inexorable demands” 

with which all capital defense counsel must fully comply. Van Hook, 558 U.S. at 

8, 130 S.Ct. 13, 175 L.Ed.2d 255. Moreover, “[a]ttorneys are not expected to 

present every potential mitigation theory, regardless of their relative strengths.” 
January Term, 2014 

55 

Fears v. Bagley, 462 Fed.Appx. 565, 576 (6th Cir.2012). Thus, trial counsel were 

not duty-bound to present Dr. Aronoff’s testimony. 

{¶ 184} Third, Maxwell argues that trial counsel were ineffective by 

failing to request instructions that would have allowed the jury to make an Atkins

finding. But trial counsel were not ineffective by failing to request such 

instructions, because the jury does not decide whether a capital defendant is 

mentally retarded. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, 

at ¶ 187. 

{¶ 185} Finally, Maxwell argues that trial counsel were ineffective by 

failing to make a penalty-phase closing argument that discussed his low 

intelligence as a mitigating factor. During the penalty-phase opening statements, 

trial counsel told jurors that the defense mitigation would consist of testimony 

from family members, friends, and coworkers about Maxwell’s life, and 

testimony from Dr. McPherson about mitigating factors that she had found. 

During closing arguments, trial counsel did not make an argument about 

Maxwell’s low intelligence. Rather, trial counsel argued residual doubt, a sole 

juror’s ability to prevent the death penalty, Maxwell’s alcohol abuse, testimony 

that Maxwell is a kind and good-hearted man, and the reality of a life sentence as 

a sentencing option. 

{¶ 186} Trial counsel’s argument appears to reflect a decision to downplay 

Maxwell’s mental deficiencies as a mitigating factor while emphasizing other 

factors, such his family background and the realities of serving life in prison as 

punishment. Maxwell has failed to demonstrate that trial counsel’s argument was 

professionally unreasonable. See Bobby v. Bies, 556 U.S. 825, 836, 129 S.Ct. 

2145, 173 L.Ed.2d 1173 (2009), quoting Atkins v. Virginia, 536 U.S. 304, 321, 

122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) (“ ‘[R]eliance on mental retardation as a 

mitigating factor can be a two-edged sword that may enhance the likelihood that 

the aggravating factor of future dangerousness will be found by the jury’ ”). 
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Moreover, Maxwell fails to show prejudice, as it cannot be said that there was a 

reasonable likelihood of a different outcome had defense counsel argued 

Maxwell’s low intelligence as a mitigating factor. 

b. Failure to prepare for mitigation 

{¶ 187} Maxwell argues that trial counsel were also ineffective because 

they were unprepared for the penalty-phase hearing. 

{¶ 188} Maxwell argues that trial counsel showed that they were 

unprepared for mitigation by requesting a continuance on the first day of the 

penalty-phase proceedings. The jury returned its guilt-phase verdict on February 

23, 2007, and the penalty-phase proceedings began on February 27, 2007. On the 

afternoon of February 27, trial counsel filed a motion requesting a continuance in 

the mitigation proceedings because they had not had adequate time to prepare a 

meaningful defense. Trial counsel’s reasons for a continuance were Maxwell’s 

mental illness, counsel’s continued inability to properly communicate with 

Maxwell, and the prosecution’s failure to provide the defense with records that 

the state wanted to be considered during mitigation. The prosecutor responded 

that there were no records that the state planned to present during its case-in-chief. 

The trial court denied the motion for a continuance. 

{¶ 189} The presentation of mitigating evidence is a matter of trial 

strategy. State v. Lang, 129 Ohio St.3d 512, 2011-Ohio-4215, 954 N.E.2d 596, 

¶ 74. Counsel in a capital case has an “obligation to conduct a thorough 

investigation of the defendant’s background” to determine the availability of 

mitigating evidence. Williams v. Taylor, 529 U.S. 362, 396, 120 S.Ct. 1495, 146 

L.Ed.2d 389 (2000). 

{¶ 190} Counsel’s “investigations into mitigating evidence ‘should 

comprise efforts to discover all reasonably available mitigating evidence and 

evidence to rebut any aggravating evidence that may be introduced by the 

prosecutor.’ ” (Emphasis sic.) Wiggins v. Smith, 539 U.S. 510, 524, 123 S.Ct. 
January Term, 2014 

57 

2527, 156 L.Ed.2d 471 (2003), quoting ABA Guidelines for the Appointment and 

Performance of Counsel in Death Penalty Cases, section 11.4.1(C), 93 (1989). 

 This constitutionally required background investigation is 

necessary to enable counsel to make strategic choices about 

presenting a mitigation defense. * * * Indeed, the deference owed 

to counsel’s strategic judgments about mitigation is directly 

proportional to the adequacy of the investigations supporting such 

judgments. Accordingly, when evaluating the reasonableness of 

counsel’s mitigation strategy in a capital case, “a reviewing court 

must consider the reasonableness of the investigation said to 

support that strategy.” 

Jells v. Mitchell, 538 F.3d 478, 492 (6th Cir.2008), quoting Wiggins, 539 U.S. at 

527. 

{¶ 191} Trial counsel employed a criminal investigator, a clinical 

psychologist who was a mitigation specialist, and another psychologist who was a 

mitigation expert. The mitigation specialist interviewed Maxwell on several 

occasions beginning in May 2006. Dr. McPherson reviewed Maxwell’s school 

records, prison records, and the records from his competency assessments. Thus, 

the defense had thoroughly prepared for the penalty phase. 

{¶ 192} Nevertheless, Maxwell argues that the record shows that trial 

counsel were unprepared for the penalty phase. First, Maxwell argues that 

counsel failed to develop evidence that his mental illness prevented him from 

communicating with counsel during the penalty phase. However, the trial court 

ruled that Maxwell was “capable of understanding the nature and objectives of 

this proceeding and of assisting his counsel” after the competency hearing had 
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58 

been conducted. Thus, counsel reasonably could have decided that any further 

development of this claim was unnecessary. 

{¶ 193} Second, Maxwell argues that trial counsel were unprepared 

because they called only family members to testify that he was nonviolent, a good 

father, and a hard worker. Maxwell also questions trial counsel’s effectiveness in 

calling these witnesses because their testimony opened the door to crossexamination about Maxwell’s criminal record. 

{¶ 194} Maxwell’s initial claim is incorrect because Dr. McPherson 

provided expert testimony about Maxwell’s background, his drug and alcohol 

problems, and his mental status. Testimony from family members and friends did 

reveal Maxwell’s criminal past. But there were advantages as well as 

disadvantages in calling these witnesses. These witnesses helped to humanize 

him in front of the jury and showed that he had many positive characteristics as a 

good father and a hard worker. 

{¶ 195} Moreover, trial counsel knew that Dr. McPherson was going to 

discuss Maxwell’s criminal record during her testimony. Dr. McPherson testified 

that Maxwell’s records from the Allen Correctional Institute showed that he was 

compliant with authority and had the skills to adjust to prison life. We hold that 

counsel’s decision to call family members and friends was a reasonable trial 

strategy and did not violate Strickland. See State v. Powell, 132 Ohio St.3d 233, 

2012-Ohio-2577, 971 N.E.2d 865, ¶ 218. 

{¶ 196} Third, Maxwell argues that trial counsel failed to develop 

evidence about his alcohol dependency. Dr. McPherson diagnosed Maxwell with 

alcohol abuse, probable dependency, currently in remission in a controlled setting. 

She testified that Maxwell has “a history that included blackouts, that included 

high use and tolerance” of alcohol that met “the criteria for an alcoholism or 

alcohol dependence diagnosis.” 
January Term, 2014 

59 

{¶ 197} Maxwell argues that trial counsel were deficient by failing to ask 

any of his family members about his drinking problems. Maxwell asserts that this 

omission undermined Dr. McPherson’s diagnosis, since she acknowledged during 

cross-examination that her diagnosis of alcohol dependency was based on 

Maxwell’s self-reporting. Maxwell also asserts that the lack of family testimony 

allowed the prosecutor to argue during closing argument that his drinking was not 

that serious, since “the people that see him every single day” said nothing about 

his alcoholism. But Maxwell’s claims about family testimony are speculative 

because it is unknown what they would have said about his drinking problems. 

Thus, we reject this claim. 

{¶ 198} Finally, Maxwell argues that the lack of a mitigation investigation 

was apparent because trial counsel indicated during the competency hearing that 

they had not seen his high school records. Trial counsel mentioned that they had 

not seen these records during the competency proceedings on February 6, 2007. 

Yet trial counsel had ample time to review these records prior to mitigation 

because the penalty-phase proceedings did not begin until February 27, 2007. We 

also reject this claim. 

c. Failure to develop a coherent mitigation theme 

{¶ 199} Maxwell argues that trial counsel were ineffective by failing to 

develop a coherent mitigation theme. Trial counsel’s strategy was to convince the 

jury that Maxwell should receive a life sentence by emphasizing Maxwell’s 

positive traits and demonstrating that he had low intelligence, suffered from 

alcohol dependency, had no significant history of violence, and would be a good 

prisoner. Trial counsel also raised residual doubt as a reason for a life sentence. 

{¶ 200} In support of this strategy, trial counsel presented the testimony of 

Maxwell’s family members and coworkers that Maxwell was kind-hearted, a 

good worker, and a family man. Dr. McPherson reviewed Maxwell’s educational 

records and discussed test results that showed his low intelligence. She also 
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60 

reviewed his prison records and explained how they showed that Maxwell would 

be a good prisoner if given a life sentence. Dr. McPherson also explained that 

Maxwell had suffered from alcohol dependency. The defense theory, although 

unsuccessful, was coherent and fit into the testimony. Counsel made a strategic 

decision in presenting the defense mitigation theory and were not ineffective. See 

State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 351-352. 

d. Arguing residual doubt 

{¶ 201} Maxwell argues that trial counsel were deficient by improperly 

raising and arguing residual doubt as the only mitigating factor during the 

penalty-phase closing arguments. He cites State v. McGuire, 80 Ohio St.3d 390, 

686 N.E.2d 1112 (1997). In McGuire, this court held that “[r]esidual doubt is not 

an acceptable mitigating factor under R.C. 2929.04(B), since it is irrelevant to the 

issue of whether the defendant should be sentenced to death.”2

 Id. at syllabus. 

{¶ 202} Trial counsel raised residual doubt as a reason not to impose the 

death penalty during closing arguments but also set forth other reasons for a life 

sentence. Trial counsel emphasized family testimony demonstrating Maxwell’s 

positive traits, his lack of any significant history of violence, and his apology to 

Nichole’s family. They also argued that the jury should consider that Maxwell 

suffered from alcoholism, headaches, and neurological problems. Thus, trial 

counsel did not rely exclusively on residual doubt in arguing that Maxwell should 

not be sentenced to death. 

{¶ 203} Maxwell also does not explain how raising residual doubt during 

closing arguments was prejudicial. Thus, he has failed to demonstrate that trial 

counsel was ineffective by arguing residual doubt. We reject this argument. 

 

 

2. Residual doubt of guilt has been defined as “a lingering uncertainty about facts, a state of mind 

that exists somewhere between ‘beyond a reasonable doubt’ and ‘absolute certainty.’ ” Franklin v. 

Lynaugh, 487 U.S. 164, 188, 108 S.Ct. 2320, 101 L.Ed.2d 155 (1988) (O’Connor, J., concurring). 
January Term, 2014 

61 

e. Misidentification of Dr. McPherson’s qualifications 

{¶ 204} Maxwell argues that trial counsel improperly elicited from Dr. 

McPherson that she was a certified mitigation specialist. Maxwell asserts that 

certification as a mitigation specialist is a designation that does not exist. 

{¶ 205} Dr. McPherson testified that she had been certified as a mitigation 

specialist. Trial counsel then tendered her as an expert witness in the area of 

mitigation. Without objection, the trial court allowed Dr. McPherson to testify as 

an expert. 

{¶ 206} Maxwell misstates the court’s ruling and erroneously claims that 

the trial court sustained the state’s objection to Dr. McPherson’s designation as a 

certified mitigation specialist and that this ruling undermined the credibility of the 

witness. In any event, there is little chance that any improper testimony about Dr. 

McPherson’s certification as a mitigation specialist was prejudicial. Thus, we 

reject this ineffectiveness claim. 

f. Failure to object to cross-examination of Dr. McPherson 

{¶ 207} Maxwell argues that trial counsel failed to object to crossexamination of Dr. McPherson that “limited the jury’s consideration of the 

evidence it could treat as mitigation.” 

{¶ 208} In State v. DePew, 38 Ohio St.3d 275, 288, 528 N.E.2d 542 

(1988), the court stated that “it is the defendant who has the right to present and 

argue the mitigating factors. If he does not do so, no comment on any factors not 

raised by him is permissible.” 

{¶ 209} Dr. McPherson provided testimony about Maxwell’s mental 

status, possible neurological problems, ability to adapt to prison life, and his 

history of alcohol abuse that the jury could consider as mitigating evidence. The 

prosecutor’s cross-examination of Dr. McPherson addressed these issues. The 

prosecutor’s questioning did not elicit objectionable information that limited the 

jury’s consideration of the mitigating evidence. 
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62 

{¶ 210} Moreover, the trial court instructed the jury, “You must consider 

all the mitigating factors presented to you. Mitigating factors include any factors 

that weigh in favor of a sentence other than death. This means that you are not 

limited to specific mitigating factors, you should consider any mitigating factors 

that weigh in favor of a sentence other than death.” These instructions ensured 

that the jury understood its role in considering mitigation. Thus, trial counsel 

were not deficient by failing to object to such questioning. 

{¶ 211} Maxwell also argues that trial counsel were deficient by failing to 

object to the prosecutor’s reference to the R.C. 2929.04(B)(7) mitigating factor as 

the “catchall” factor. R.C. 2929.04(B)(7) permits a capital defendant to present 

“[a]ny other factors that are relevant to the issue of whether the offender should 

be sentenced to death.” Maxwell claims that trial counsel should have objected to 

the word “catchall” because that designation implied that mitigation presented 

under (B)(7) did not merit the same consideration as evidence relating to the other 

statutory mitigating factors. But nothing shows that the jury gave less weight to 

(B)(7) evidence. Thus, we also reject this speculative claim. 

g. Failure to object and preserve error 

{¶ 212} Finally, Maxwell complains that trial counsel failed to object to 

the trial court’s use of the term “recommendation” during voir dire, failed to 

properly request a neurologist to assist in mitigation, and failed to object to the 

prosecutor’s penalty-phase argument. Maxwell raised counsel’s failure to object 

to the trial court’s use of the term “recommendation” in proposition IV. But this 

claim lacks merit because counsel did object. Maxwell’s other two claims recast 

unsuccessful substantive propositions of law into ineffectiveness claims. But as 

discussed below in proposition XI, Maxwell was not prejudiced by counsel’s 

failure to object to the prosecutor’s penalty-phase argument. And as discussed 

next in proposition XII, trial counsel were not ineffective by failing to request a 

neurologist for mitigation purposes. 
January Term, 2014 

63 

{¶ 213} Based on the foregoing, we overrule proposition I. 

2. Failure to appoint a neurologist (Proposition of law XII) 

{¶ 214} Maxwell argues that the trial court erred by failing to appoint a 

neurologist to develop mitigation. He also repeats claims that trial counsel were 

ineffective by failing to request a neurologist for mitigating purposes. 

a. Facts 

{¶ 215} On January 19, 2007, trial counsel filed a motion requesting funds 

to allow Dr. John Fabian to perform a neurological evaluation of Maxwell’s 

mental condition. Trial counsel stated that in assessing Maxwell’s medical 

history during the competency evaluation, “the Court Psychiatric Clinic and 

Northcoast indicated that Defendant was rendered unconscious for some time 

[due] to a motorcycle accident.” Thus, trial counsel requested the court “to allow 

Dr. Fabian to continue to evaluate Defendant for Competency and Sanity and to 

allow him to conduct neurological testing and prepare reports outlining his 

findings and opinions.” 

{¶ 216} During the competency hearing on February 6, 2007, trial counsel 

clarified that they were not requesting Dr. Fabian to conduct the neurological 

evaluation of Maxwell, since Dr. Fabian was not a neurologist. Dr. Fabian was 

serving as a liaison with neurologists who perform this type of testing. Trial 

counsel then stated that they were requesting a neurological evaluation because 

Maxwell had told them that his life and the way he looks at things were different 

since that motorcycle accident. Thus, counsel requested a neurological evaluation 

to provide “objective medical findings in terms of an MRI or a CAT scan as per 

Dr. Fabian’s recommendation.” 

{¶ 217} During the competency hearing, Dr. Cook testified that she had 

talked to Maxwell about the motorcycle accident, and he told her that he had 

received no treatment and had not been hospitalized as a result of the accident. 
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{¶ 218} Dr. Aronoff testified that he had reviewed Maxwell’s medical 

records that showed he was treated at Meridia-Huron Hospital on March 29, 1999, 

after the motorcycle accident. Dr. Aronoff quoted findings from the medical 

records that reported that Maxwell was “sitting on motorcycle which was struck 

from behind by a car at low speed. He was thrown off the bike on to the right 

side. No loss of consciousness. Was wearing a helmet. Right shoulder, right hip, 

right elbow, right ankle are painful. No headache or neck pain.” Dr. Aronoff also 

stated that x-rays were taken of Maxwell’s shoulder, elbow, ankle, and hip, and 

they were all unremarkable.3

 However, Dr. Aronoff testified that Maxwell told 

him that he was rendered unconscious in the motorcycle accident. 

{¶ 219} The trial court denied the defense request for a neurological 

evaluation. Trial counsel did not renew the request for a neurologist during the 

remainder of the trial. 

b. Analysis 

{¶ 220} As a matter of due process, an indigent defendant in a capital case 

is entitled to the basic tools with which to conduct an adequate defense. Ake v. 

Oklahoma, 470 U.S. 68, 77, 105 S.Ct. 1087, 84 L.Ed.2d 53 (1985). In Ake, the 

United States Supreme Court concluded that the state must provide a psychiatric 

expert for the defense when the defendant has made a preliminary showing that 

his sanity will be a significant factor at trial. Id. at 74. Although Ake dealt only 

with a defendant’s entitlement to psychiatric assistance, this court has recognized 

that due process may require the state to provide other types of expert assistance 

to a criminal defendant. State v. Mason, 82 Ohio St.3d 144, 149, 694 N.E.2d 932 

(1998). Moreover, R.C. 2929.024 requires the trial court to provide expert 

assistance when “reasonably necessary for the proper representation of a 

defendant charged with aggravated murder.” 

 

3. Maxwell also supports his claim with Dr. McPherson’s testimony. However, Dr. McPherson’s 

testimony was not presented for consideration on this motion. 
January Term, 2014 

65 

{¶ 221} In Mason, the court held that the state must provide an indigent 

criminal defendant with funds to obtain expert assistance when the defendant has 

made a particularized showing that (1) there exists a reasonable probability that 

the requested expert would aid the defense and (2) denial of that expert assistance 

would result in an unfair trial. The trial court’s ruling on such requests is a matter 

left to the exercise of the court’s “sound discretion.” Id. at syllabus. 

{¶ 222} Trial counsel did not request the appointment of a neurologist for 

purposes of mitigation. Rather, as the defense concedes, trial counsel requested a 

neurologist in the context of his competency evaluation. Thus, this claim lacks 

merit because the trial court never entertained a defense motion for a neurologist 

for mitigation purposes. 

{¶ 223} Even assuming that the trial court should have construed the 

defense motion for a neurologist as carrying over for mitigation purposes, we hold 

that no error occurred. A defendant must show not just a mere possibility but a 

reasonable probability that an expert would aid in his defense. State v. Broom, 40 

Ohio St.3d 277, 283, 533 N.E.2d 682 (1988). 

{¶ 224} The defense request for a neurologist was based upon Dr. 

Fabian’s recommendation and reports obtained during his competency evaluation 

stating that Maxwell was rendered unconscious following an earlier motorcycle 

accident. But Dr. Fabian did not testify, and any written reports from him were 

not submitted to the court. 

{¶ 225} Maxwell’s medical records showed that he suffered no loss of 

consciousness and reported no headache or neck pain as a result of that 

motorcycle accident. Thus, Maxwell’s request merely raised the possibility that 

he had suffered a brain injury as a result of a motorcycle accident. It was not 

supported by anything in his medical records. Moreover, the medical records 

contradicted Maxwell’s story about what happened after the accident. Maxwell 
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told Dr. Aronoff that he was rendered unconscious, and he told Dr. Cook that he 

received no medical treatment. 

{¶ 226} Maxwell cites State v. Eppinger, 91 Ohio St.3d 158, 743 N.E.2d 

881 (2001), in arguing that the defense was entitled to a neurologist. Eppinger

addressed a defendant’s right to an expert psychologist at a sexual-offenderclassification hearing. Eppinger held that a defendant is entitled to such an expert 

if the trial court determines that the expert’s services are reasonably necessary to 

aid in determining whether the offender is likely to engage in the future in one or 

more sexually oriented offenses. Id. at syllabus. Eppinger involved a totally 

different type of fact situation from the present case and does not support 

Maxwell’s argument. 

{¶ 227} Maxwell also cites Frazier v. Huffman, 343 F.3d 780 (6th 

Cir.2003), in arguing that the trial court erred in not appointing a neurologist. In 

Huffman, a capital case, the court held that defense counsel were ineffective by 

failing to investigate and present evidence of the defendant’s brain impairment 

during the trial. Id. at 797. The court found that counsel were ineffective because 

after reviewing the defendant’s medical records, they were aware that the 

defendant had suffered a brain injury from falling from a ladder, but they failed to 

investigate and present evidence about it. Id. at 794-795. Unlike the records in 

Huffman, Maxwell’s medical records contain nothing that documents that he had 

suffered any brain injuries. Thus, Huffman is inapposite. 

{¶ 228} Based on the foregoing, we hold that the trial court did not abuse 

its discretion in denying the defense request for a neurologist. Compare 

Hughbanks, 99 Ohio St.3d 365, 2003-Ohio-4121, 792 N.E.2d 1081, at ¶ 44-46 (no 

particularized need demonstrated for neuropharmacologist); State v. Campbell, 90 

Ohio St.3d 320, 327-328, 738 N.E.2d 1178 (2000) (“mere possibility that the 

[specialized chest X-ray] could have had some [mitigation] value to the defense 

was not enough”). 
January Term, 2014 

67 

c. Ineffective assistance of counsel 

{¶ 229} In proposition of law I, Maxwell asserted that trial counsel were 

ineffective by failing to request a neurologist to assist in the development of 

mitigation. Yet Maxwell provides no argument and cites no legal authority in 

support of this claim. 

{¶ 230} Our review of this ineffectiveness claim starts with a review of 

Dr. McPherson’s testimony to determine whether she provided counsel with 

additional information about Maxwell’s head injuries from the motorcycle 

accident that required counsel to conduct a further investigation. 

{¶ 231} Dr. McPherson administered the Bender-Gestalt test during her 

evaluation of Maxwell. She described the Bender-Gestalt as a “copying task” that 

serves as a low-level screening test. She testified that there was “some indication 

[that] his hand might not have been steady, but there were distortions that didn’t 

make a lot of sense, so the question remained as to whether or not there was some 

kind of organically based anomaly, something that affects how his brain processes 

information.” 

{¶ 232} Dr. McPherson testified about past injuries that Maxwell reported 

suffering. Maxwell stated that he had been briefly unconscious after falling off a 

horse but that he did not receive any medical treatment for that incident. Dr. 

McPherson also discussed the motorcycle accident and said, “[H]e may have been 

briefly unconscious. He was certainly conscious when he was seen at the hospital 

for that one.” Dr. McPherson also stated that there was nothing in Maxwell’s 

medical records showing that he had suffered a traumatic head injury in the 

motorcycle accident. 

{¶ 233} In discussing her final diagnosis, Dr. McPherson stated that 

Maxwell suffered from an adjustment disorder with depression and probable 

alcohol dependency. Dr. McPherson testified that she could not determine 

whether Maxwell had had a traumatic brain injury and advised that “whoever is 
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working with him next should continue to be aware that this may be there and try 

to come up with information to either rule it in or out.” She also testified that 

Maxwell has “some type of cognitive difficulty. He may have some underlying 

organic problems and these may have rendered him more likely to react with 

irritability since that’s one of the known things that can occur with certain kinds 

of organicity making him more prone to act out in a stressful situation such as a 

relationship that was flawed.” 

{¶ 234} Dr. McPherson’s testimony about the need for further testing to 

rule out possible brain impairment appears to be based upon Maxwell’s 

performance on the Bender-Gestalt test. She testified that the Bender-Gestalt test 

indicated some distortions, but she did not indicate that these results were 

conclusive as to brain damage. Thus, the Bender-Gestalt results raised only the 

possibility of brain impairment. See State v. Allen, 73 Ohio St.3d 626, 642, 653 

N.E.2d 675 (1995) (trial court did not abuse discretion in refusing to appoint 

neurologist based on Bender-Gestalt test that showed little likelihood of brain 

damage). 

{¶ 235} Maxwell fails to establish that counsel were deficient by failing to 

request a neurologist for mitigation purposes based on Dr. McPherson’s 

testimony. First, the record does not show that trial counsel failed to investigate 

the need to request a neurologist after reviewing Dr. McPherson’s findings. We 

cannot infer a defense failure to investigate from a silent record; the burden of 

demonstrating ineffective assistance is on Maxwell. See Were, 118 Ohio St.3d 

448, 2008-Ohio-2762, 890 N.E.2d 263, at ¶ 244. 

{¶ 236} Second, the trial court could have properly denied a motion for a 

neurologist because Maxwell would have been unable to make a particularized 

showing of a reasonable probability that the requested expert would aid in his 

defense. Mason, 82 Ohio St.3d 144, 694 N.E.2d 932, syllabus. Dr. McPherson 

reiterated that Maxwell’s medical records did not show that he had suffered a 
January Term, 2014 

69 

traumatic head injury during the motorcycle accident. Indeed, Dr. McPherson’s 

information about a possible head injury resulted from Maxwell’s self-reporting. 

{¶ 237} Finally, Maxwell has failed to show that the absence of a 

neurological evaluation resulted in an unfair trial. Id. Dr. McPherson testified 

that there might be “some underlying organic problems and these may have

rendered him more likely to react with irritability * * * in a stressful situation.” 

(Emphasis added.) The evidence showed that Maxwell murdered Nichole in 

retaliation for her testimony. Accordingly, this was a planned murder rather than 

a sudden encounter involving a stressful situation. Thus, we reject this 

ineffectiveness claim. 

{¶ 238} Based on the foregoing, proposition XII is overruled. 

3. Reintroduction of guilt-phase evidence (Proposition of law XVI) 

{¶ 239} Maxwell argues that the trial court erred by admitting guilt-phase 

evidence during the penalty phase that was irrelevant. The trial court, over 

defense objection, admitted photographs showing the victim displaying injuries 

she suffered during the felonious assault, a photograph of the victim without 

injuries, and an autopsy photograph of the victim’s face. 

{¶ 240} R.C. 2929.03(D)(1) provides that at the penalty stage of a capital 

proceeding, the court and jury shall consider “any evidence raised at trial that is 

relevant to the aggravating circumstances the offender was found guilty of 

committing * * * [and] hear testimony and other evidence that is relevant to the 

nature and circumstances of the aggravating circumstances the offender was 

found guilty of committing.” DePew, 38 Ohio St.3d at 282-283, 528 N.E.2d 542. 

The trial court did not abuse its discretion in readmitting photographs displaying 

injuries that Nichole suffered during the felonious assault or the autopsy 

photograph, because these items bore some relevance to the nature and 

circumstances surrounding the R.C. 2929.04(A)(8) specification. The photograph 
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of Nichole without injuries was of questionable relevance, but no prejudice 

resulted from its introduction. 

{¶ 241} Based on the foregoing, proposition XVI is overruled. 

4. Prosecutorial misconduct during closing arguments (Proposition of law XI) 

{¶ 242} Maxwell argues that the prosecutor committed various instances 

of prosecutorial misconduct during his closing arguments. However, except 

where noted, trial counsel failed to object to the prosecutor’s argument and thus 

waived all but plain error. State v. Williams, 51 Ohio St.2d 112, 364 N.E.2d 1364 

(1977), paragraph one of the syllabus. 

{¶ 243} Whether a prosecutor’s remarks constitute misconduct depends 

upon (1) whether the remarks were improper and, if so, (2) whether the remarks 

prejudicially affected an 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). 

{¶ 244} First, Maxwell argues that, over defense objection, the prosecutor 

commented, “I know it’s devastating for the families, especially Nichole’s family 

and what they’ve gone through.” The mention of “the personal situation of the 

victim’s family, without more, does not constitute misconduct.” State v. 

Goodwin, 84 Ohio St.3d 331, 339, 703 N.E.2d 1251 (1999). The prosecutor’s 

comments about the victim’s family were brief and did not dwell on the pain they 

suffered. Thus, we hold that no misconduct occurred. See State v. Brinkley, 105 

Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 140. 

{¶ 245} Second, Maxwell argues that the prosecutor improperly argued 

that his ability to adapt to prison life was not a mitigating factor. During 

arguments, the prosecutor stated: 
January Term, 2014 

71 

You must engage in that weighing process and * * * with that 

aggravating circumstance, the retaliation think what have you 

heard in this case that mitigates against that * * *. What mitigating 

factors have you heard? He’s capable of conforming to prison 

life? That’s a mitigating factor? Is that—really? You assign the 

weight that you think each of these deserve. 

{¶ 246} “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). The prosecutor was not 

arguing that Maxwell’s ability to adapt to prison was not a mitigating factor. 

Rather, the prosecutor was responding to Dr. McPherson’s testimony that 

Maxwell could conform his conduct to the highly structured setting of a prison. 

He was arguing that such evidence was not entitled to significant weight. Nothing 

in this argument resulted in plain error. 

{¶ 247} Finally, Maxwell contends that the prosecutor misbehaved by 

arguing the absence of mitigating factors the defense never raised. The 

prosecutor argued: 

You’ve had good people come up here and tell you about Mr. 

Maxwell, try to mitigate against this aggravating circumstance. 

We didn’t hear bad childhood, abusive situations, * * * wanting for 

anything in life. We just didn’t hear it. We heard he had support. 

We heard he was raised correctly. He went to church. You know 

and the Judge—the doctor said no mental defect or disease. Did 

you hear any remorse? I mean I don’t—those are the things that 

you have to consider, folks. 
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{¶ 248} “A prosecutor can respond to issues raised by an accused.” State 

v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 101. The 

prosecutor was responding to extensive testimony presented by Maxwell’s friends 

and family members, stating that Maxwell was kind-hearted, a good man, and a 

family man. Ernestine Brewer, Maxwell’s mother, testified that he was “a great 

kid” and was raised in the church. The prosecutor’s comments about remorse 

responded to Maxwell’s unsworn statement: “I would like to say that I’m sorry to 

the victim’s family and my family for going through this. I wouldn’t want 

nobody’s family to go through this.” The prosecutor’s comments about defense 

testimony and Maxwell’s unsworn statement represented fair comment and did 

not constitute plain error. 

{¶ 249} Based on the foregoing, proposition XI is rejected. 

C. Remaining issues

1. Appropriateness of death sentence (Proposition of law XVIII) 

{¶ 250} Maxwell argues that the death penalty is not appropriate because 

of the compelling mitigating evidence presented in his behalf. We will address 

these arguments during our independent sentence evaluation. 

2. Cumulative error (Proposition of law XVII) 

{¶ 251} Maxwell claims that the cumulative effect of errors committed 

during trial deprived him of a fair trial and necessitates reversal of his conviction 

and death sentence. 

{¶ 252} We have recognized the doctrine of cumulative error. State v. 

DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the 

syllabus. 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. 
January Term, 2014 

73 

{¶ 253} The doctrine of cumulative error is not applicable in the present 

case. Maxwell received a fair trial, and there are not numerous instances of trialcourt error. Moreover, Maxwell was not prejudiced by any error at the trial or 

penalty phase of the proceedings. 

3. Settled issues (Proposition of law XIX) 

{¶ 254} Maxwell challenges the constitutionality of Ohio’s death-penalty 

statutes under both the United States Constitution and the Ohio Constitution. We 

reject these claims on the basis of State v. Carter, 89 Ohio St.3d 593, 607, 734 

N.E.2d 345 (2000); State v. Steffen, 31 Ohio St.3d 111, 509 N.E.2d 383 (1987), 

paragraph one of the syllabus; State v. Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 

264 (1984), paragraph one of the syllabus. 

{¶ 255} Maxwell also challenges the constitutionality of Ohio’s 

reasonable-doubt standard. However, this court has affirmed the constitutionality 

of R.C. 2901.05(D). Jones, 91 Ohio St.3d at 347, 744 N.E.2d 1163; see also State 

v. Goff, 82 Ohio St.3d 123, 132, 694 N.E.2d 916 (1998).

IV. Independent Sentence Evaluation 

{¶ 256} Having considered Maxwell’s propositions of law, this court must 

independently review Maxwell’s death sentence for appropriateness and 

proportionality and independently determine whether the aggravating 

circumstance of which Maxwell was convicted outweighs the mitigating factors 

pursuant to R.C. 2929.05(A). The R.C. 2929.04(A)(3) murder-to-escapeaccountability specification was merged with the R.C. 2929.04(A)(8) retaliation 

specification before sentencing. 

A. Aggravating circumstance

{¶ 257} The evidence at trial established beyond a reasonable doubt that 

Maxwell murdered Nichole McCorkle in retaliation for her testimony in a 

criminal proceeding, R.C. 2929.04(A)(8). Accordingly, we consider whether the 

aggravating circumstance of which Maxwell was convicted, R.C. 2929.04(A)(8), 
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murder in retaliation for testimony in another criminal proceeding, outweighs the 

evidence presented in mitigation. 

B. Mitigating evidence presented

{¶ 258} Maxwell called ten mitigating witnesses and made an unsworn 

statement. William Steward, Maxwell’s oldest brother, testified that Maxwell 

comes from a good family. Maxwell has four brothers and three sisters. Steward 

stated that Maxwell has a good heart and will give the shirt off his back to help 

people. Maxwell graduated from high school and later obtained vocational 

training and learned how to operate heavy machinery. Steward also stated: 

“[Maxwell] is not a monster or anything. * * * [T]he picture that’s being painted 

here is I think a little bit different than what really lurks here.” Finally, Steward 

stated, “I personally would like to say to the victims that I apologize and I’m sorry 

about * * * what the family is going through and this whole incident.” 

{¶ 259} Herbert Nelson, grew up with Maxwell, a first cousin, and 

Maxwell’s family would visit Nelson, who lived in Arkansas. Nelson later moved 

to the Cleveland area, and he and Maxwell worked jobs together. Nelson testified 

that Maxwell was a “real good worker” and a “real good guy.” Nelson stated that 

he missed Maxwell and asked the court to have mercy on him. 

{¶ 260} Veronica Nelson, Herbert’s wife, had known Maxwell since she 

became engaged to marry her husband five years earlier. Veronica testified that 

she has always felt comfortable around Maxwell. She stated that he was “always 

well-dressed, well-behaved, not drunken, not cursing, [and] mannerable.” 

Maxwell was also “loving towards his family, his mother, his sisters, at all times.” 

{¶ 261} Roscoe Horne, a neighbor, testified that he had known Maxwell 

since 2002 or 2003 and that Maxwell had performed construction work for 

Horne’s construction company. Horne stated that Maxwell operated heavy 

equipment and was an excellent worker and very trustworthy. Horne also 

described him as a good neighbor who was friendly and went out of his way to 
January Term, 2014 

75 

help other people. Horne testified that Maxwell often took food to older people 

during the holidays. Horne concluded by saying, “[A] lot of people love him and 

our hearts go out to him.” 

{¶ 262} Bernard McNear, Maxwell’s brother-in-law, had known Maxwell 

for five or six years. McNear testified that Maxwell offered him the opportunity 

to work on construction jobs and helped teach him the work. McNear stated that 

Maxwell was an outgoing person and was always willing to talk with McNear and 

give him positive advice. 

{¶ 263} Theresa McNear, Maxwell’s younger sister, testified that Maxwell 

was a nice guy. Theresa spent a lot of time tagging along with Maxwell when 

they were growing up. They went fishing together, and Maxwell tried to teach 

her how to ride a horse. Maxwell provided Theresa with help in dealing with 

stressful issues and helped Theresa’s daughter with her homework. Theresa also 

testified that Maxwell loved his daughter, C.M., and had a good interaction with 

her. Theresa concluded that Maxwell had a huge heart, loved hard, and would 

help anybody. 

{¶ 264} Sharon Graves, Maxwell’s older sister, testified that he was a 

playful child and was always there if his brothers and sisters needed him. Graves 

stated that Maxwell had a loving relationship with C.M. Graves also stated that 

Maxwell had been supportive of her children and went to her daughter’s high 

school graduation. Graves emphasized that Maxwell was a “good person.” 

{¶ 265} Andy Maxwell, the defendant’s younger brother, had always 

wanted to follow his big brother. When Andy was eight years old, Maxwell saved 

Andy from drowning. Andy testified that Maxwell had “been like that” all 

through life. He stated that Maxwell had a great relationship with C.M. and took 

her horseback riding and did other activities with her. Maxwell had also been 

very helpful with other people. For example, Maxwell distributed a list of 

information about felons needing jobs to possible employers. 
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{¶ 266} Ernestine Brewer, Maxwell’s mother, testified that Maxwell was 

born in Arkansas but spent most of his life in Ohio. Brewer testified that Maxwell 

was raised in the church and was a “Bible-taught kid.” Brewer said that Maxwell 

spent time in prison but was always by her side after his release. Brewer said that 

Maxwell was a “good kid.” In conclusion, she told the jury, “He might have fell 

by the wayside and I’m asking them to please spare his life * * *. People do 

things out of anger, you know, so that’s it.” 

{¶ 267} Dr. Sandra McPherson evaluated and conducted psychological 

testing of Maxwell. Dr. McPherson evaluated Maxwell’s educational records 

from the Cleveland public schools, his records from Allen Correctional Institute, 

where he spent five years, and his competency assessments. 

{¶ 268} Dr. McPherson testified that Maxwell did not do particularly well 

in school. His grades “tended to be * * * D’s and F’s; there were some C’s.” Dr. 

McPherson stated that Maxwell’s criminal records show charges and convictions 

for drug trafficking and that there was also “a domestic violence associated with 

the victim of this crime.” Maxwell’s prison records show that he was “compliant 

with authority.” Dr. McPherson stated that “there was a report rendered to the 

parole board saying that his conduct had been basically exemplary and that he 

would be appropriate for release.” 

{¶ 269} Maxwell also received a series of assessments during his 

competency evaluation that found him to be competent. Dr. McPherson testified 

that there were symptoms of possible mental illness, but there were also questions 

as to whether he was exaggerating them. Dr. McPherson also testified that there 

was a confirmed diagnosis of alcohol dependence, and other diagnoses included 

“a differential between paranoid personality disorder and paranoid psychosis 

which was unresolved as well as borderline intellectual functioning.” A history of 

head trauma was also noted in these evaluations. 
January Term, 2014 

77 

{¶ 270} Dr. McPherson testified that Maxwell’s reading ability is at the 

eighth-grade level. Results from the Wechsler Adult Intelligence Scale showed 

that Maxwell has a full-scale IQ of 84, a performance IQ of 95, and a verbal IQ of 

77. She testified that results from the Bender-Gestalt test showed some 

distortions that might reflect “some kind of organically based anomaly, something 

that affects how his brain processes information.” She stated that Maxwell 

reported two head injuries. One injury occurred when he fell off a horse, and the 

other resulted from a motorcycle accident. Maxwell reported that he had periodic 

headaches that have continued through the years, and these interfere with his 

functioning when they occur. 

{¶ 271} Results of the Thematic Apperception Test were relatively 

limited. Dr. McPherson testified that there were indications in Maxwell’s stories 

of depression and a desire to avoid what was unpleasant. Results on the 

Minnesota Multiphasic Personality Inventory-2 showed that his validity scales 

were within range, and the clinical scales were within normal limits. Dr. 

McPherson testified that there was “no sign of any psychosis or condition that 

would have rendered him incapable of understanding what’s going on in the 

world around him.” 

{¶ 272} Dr. McPherson diagnosed Maxwell with an adjustment disorder 

with depression and alcohol abuse, probable dependency, currently in remission 

in a controlled setting. Dr. McPherson’s diagnosis included “Rule out traumatic 

brain injury with residual systems.” Dr. McPherson testified that this means “I 

can’t call it but whoever is working with him next should continue to be aware 

that this may be there and try to come up with information to either rule it in or 

out.” 

{¶ 273} Dr. McPherson discussed mitigating factors that she found from 

her tests and interviews. She stated that Maxwell is capable of conforming his 

conduct in a highly structured setting and has the skills to adjust to prison and not 
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be a problem. Dr. McPherson stated that Maxwell has some cognitive difficulty. 

He may have some underlying organic problems, and these may have rendered 

him more likely to react with irritability in a stressful situation such as a flawed 

relationship. She also testified that Maxwell has no record of violence other than 

the current situation. In addition, Maxwell has indicated his desire to be a 

positive person, and he has done things for his family. 

{¶ 274} Finally, Dr. McPherson stated that Maxwell maintains his 

innocence of the crime and continues to do so. 

{¶ 275} Maxwell made an unsworn statement during mitigation: 

First of all, I would like to say that I’m sorry to the victim’s family 

and my family for going through this. I wouldn’t want nobody’s 

family to go through this. 

And I have one child and I did this to see her this one last 

time. And my family haven’t saw her, I haven’t saw her and my 

father is always in Arkansas and he comes to see her every two 

years probably and that’s the only grandchild he has and I want her 

to be a part of his life. 

{¶ 276} The next segment of Maxwell’s unsworn statement was addressed 

to his daughter, C.M.: 

I love her and I miss her. And I miss her mother too. And I want 

her to be a part of my family’s life. The little time that I have with 

her. 

{¶ 277} The final segment of Maxwell’s unsworn statement was addressed 

to Nichole’s family: 
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79 

I want to say that I’m sorry that they had to go through this. And I 

would ask them if they would let [C.M.] be a part of my family, 

my family’s life. She love them and they love her. 

{¶ 278} Before final sentencing, Maxwell made a statement in allocution 

for the trial court’s consideration: 

I want to say I’m sorry for the tragedy and what I meant to say was 

I want to be able to see my daughter grow up and my family—she 

be a part of my family because they’re going to keep her away 

from my family and I want to be able to live and see her grow up. 

* * * I would like to be able to live and see her grow into a person. 

Thank you. 

{¶ 279} The statutory mitigating factors under R.C. 2929.04(B) include 

(B)(1) (inducement of murder by victim), (B)(2) (duress, coercion, or strong 

provocation), (B)(3) (mental disease or defect), (B)(4) (youth of the offender), 

(B)(5) (lack of a significant criminal record), (B)(6) (not being the principal 

offender), and (B)(7) (any other relevant factors). The first six factors do not 

apply, but several points in mitigation arise under the (B)(7) factor. We give 

appropriate weight to Maxwell’s low-average intelligence (IQ of 84). His 

diagnosed alcohol abuse is also entitled to some weight. See Craig, 110 Ohio 

St.3d 306, 2006-Ohio-4571, 853 N.E.2d 621, at ¶ 146. 

{¶ 280} Some weight should be given to the love and support that 

Maxwell shares with his family. See State v. Myers, 97 Ohio St.3d 335, 2002-

Ohio-6658, 780 N.E.2d 186, ¶ 178. We also give some weight to testimony that 
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Maxwell is a good and dependable worker. See State v. Trimble, 122 Ohio St.3d 

297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 327. 

{¶ 281} Maxwell argues that this court should consider testimony that he 

will be able to adjust well to prison life. See State v. Madrigal, 87 Ohio St.3d 

378, 397, 721 N.E.2d 52 (2000). Dr. McPherson testified that Maxwell’s prison 

records showed that his conduct had been exemplary in prison. We give some 

weight in mitigation to Maxwell’s ability to adjust to prison life. 

{¶ 282} Maxwell also argues that his remorse is entitled to weight as a 

mitigating factor. In his unsworn statement, Maxwell apologized to his family 

and the victim’s family “for going through this.” During allocution, Maxwell told 

the trial court, “I’m sorry for the tragedy.” Yet Dr. McPherson testified that 

Maxwell maintains his innocence of the charges. Thus, Maxwell continues to 

deny responsibility for Nichole’s murder. Maxwell’s denials negate the 

mitigating weight that we might otherwise give to his expressions of sorrow. See 

Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, at ¶ 205. 

{¶ 283} Finally, Maxwell raises residual doubt as a mitigating factor. 

Maxwell argues that his reason for shooting Nichole was jealousy rather than 

retaliation for her testimony against him. He argues that this is at best a mixedmotive case and makes the aggravating circumstance of retaliation less serious. 

Yet the evidence established that Maxwell murdered Nichole because she testified 

against him before the grand jury. Moreover, residual doubt is not a reason to 

overturn a death sentence. See McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112, 

syllabus. Thus, we reject residual doubt as a mitigating factor in this case. The 

evidence does not suggest any other (B)(7) mitigating factors. 

{¶ 284} There is nothing mitigating in the nature and circumstances of the 

offenses. Moreover, Maxwell’s history and background provide little mitigating 

value. He was raised by a loving mother and was surrounded by a supportive 

family and friends. 
January Term, 2014 

81 

{¶ 285} We weigh the aggravating circumstance of R.C. 2929.04(A)(8), 

the witness-murder specification, against these mitigating factors. Here, Maxwell 

murdered Nichole McCorkle in retaliation for testifying against him before the 

grand jury. Maxwell’s mitigating evidence is weak in comparison. Maxwell has 

also refused to accept responsibility for murdering Nichole. We find that the 

aggravating circumstance outweighs the mitigating factors beyond a reasonable 

doubt. 

{¶ 286} Finally, the death sentence is both appropriate and proportionate. 

See Fry, 125 Ohio St.3d 163, 2010-Ohio-1017, 926 N.E.2d 1239, at ¶ 235 

(murder in retaliation for testimony); State v. Bethel, 110 Ohio St.3d 416, 2006-

Ohio-4853, 854 N.E.2d 150, ¶ 212 (murder to prevent testimony in an upcoming 

murder trial); State v. Turner, 105 Ohio St.3d 331, 2005-Ohio-1938, 826 N.E.2d 

266, ¶ 101 (murder in retaliation for filing domestic-violence charges). 

V. Conclusion 

{¶ 287} We affirm the judgment of conviction and the sentence of death. 

Judgment affirmed. 

O’CONNOR, C.J., and O’DONNELL and KENNEDY, JJ., concur. 

FRENCH, J., concurs separately. 

PFEIFER and O’NEILL, JJ., concur in part and dissent in part. 

____________________ 

FRENCH, J., concurring. 

{¶ 288} I agree with the concurring and dissenting opinion that the 

admission of the autopsy report and the admission of Dr. Felo’s testimony 

regarding the information contained in the autopsy report violated Maxwell’s 

confrontation rights, but that the admission of that evidence constituted harmless 

error. I also agree that Dr. Felo’s independent conclusions would not offend the 

Confrontation Clause. 
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{¶ 289} Autopsy reports are not per se nontestimonial. Ohio’s statutory 

scheme makes clear that an autopsy is intended to serve two distinct purposes: 

(1) investigation of homicides and other crimes and (2) investigation of publichealth concerns. R.C. 313.131(C)(1) (“An autopsy is a compelling public 

necessity if it is necessary to the conduct of an investigation by law enforcement 

officials of a homicide or suspected homicide, or any other criminal investigation, 

or is necessary to establish the cause of the deceased person’s death for the 

purpose of protecting against an immediate and substantial threat to the public 

health”). To determine which purpose takes precedence in any given case, we 

must look to the facts of that particular case. Here, police responded to a 

shooting. The coroner received the body of a victim who had been shot twice in 

the head. Common sense tells us that the coroner was not investigating a 

mysterious public-health epidemic. He was investigating a homicide and would 

have clearly expected his report to be used in a subsequent murder trial. Thus, in 

this case, the report was testimonial. 

{¶ 290} I agree with the majority’s independent review of the imposition 

of the death penalty, however, and would affirm on those grounds. 

____________________ 

PFEIFER, J., concurring in part and dissenting in part. 

{¶ 291} I dissent from the imposition of the death penalty in this case. I 

would find under our independent sentence evaluation that the imposition of death 

is not appropriate for this defendant. 

{¶ 292} I concur in the majority’s judgment affirming the defendant’s 

convictions, but disagree with the statements the majority makes regarding the 

admissibility of autopsy reports prepared by nontestifying medical examiners and 

regarding the admissibility of the testimony of surrogate medical examiners who 

rely upon the autopsy reports of nontestifying medical examiners. Ultimately, I 

concur in that part of the majority’s judgment that affirms the conviction because 
January Term, 2014 

83 

I believe that although both the admission of Dr. David Dolinak’s autopsy report 

into evidence and Dr. Joseph Felo’s testimony regarding Dr. Dolinak’s autopsy 

report violated defendant-appellant Charles Maxwell’s Sixth Amendment right to 

confrontation, the trial court’s errors were harmless beyond a reasonable doubt. 

I 

{¶ 293} In its landmark Confrontation Clause case, Crawford v. 

Washington, 541 U.S. 36, 53-54, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the 

United States Supreme Court held that the Confrontation Clause bars “testimonial 

statements of a witness who did not appear at trial unless he was unavailable to 

testify, and the defendant had a prior opportunity for cross-examination.” But the 

court left “for another day any effort to spell out a comprehensive definition of 

‘testimonial.’ ” Id. To some extent, we still await that clarifying day, especially in 

the area of autopsy reports; several state court decisions regarding the 

admissibility of autopsy testimony have been appealed to the United States 

Supreme Court, but to this point, the court has not granted certiorari on the issue. 

State v. Navarette, 2013-NMSC-003, 294 P.3d 435, cert. denied, ___ U.S. ___, 

134 S.Ct. 64, 187 L.Ed.2d 254 (2013); State v. Joseph, 230 Ariz. 296, 283 P.3d 27 

(2012), cert. denied, 133 S.Ct. 936, 184 L.Ed.2d 733 (2013); State v. Mitchell, 

2010-ME-73, 4 A.3d 478, cert. denied, 133 S. Ct. 55, 183 L.Ed.2d 709 (2012). 

The nation, like this court, remains split on the question. But since Crawford, the 

court in cases like Melendez-Diaz v. Massachusetts, 557 U.S. 305, 129 S.Ct. 

2527, 174 L.Ed.2d 314 (2009), Bullcoming v. New Mexico, 564 U.S. ___, 131 

S.Ct. 2705, 180 L.Ed.2d 610 (2011), and Williams v. Illinois, ___ U.S. ___, 132 

S.Ct. 2221, 183 L.Ed.2d 89 (2012), has provided enough guidance to establish 

that in most criminal cases, autopsy evidence is testimonial and implicates a 

defendant’s Sixth Amendment confrontation right. 

 
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A 

Admission of the Autopsy Report 

Melendez-Diaz

{¶ 294} I write today as the author of State v. Craig, 110 Ohio St.3d 306, 

2006-Ohio-4571, 853 N.E.2d 621. In Craig, this court held that an autopsy report 

prepared by a nontestifying medical examiner created no confrontation-right 

implications because it was a business record; the court in Crawford had indicated 

that business records are, “by their nature,” not testimonial. Crawford. at 56. This 

court wrote: 

An autopsy report, prepared by a medical examiner and 

documenting objective findings, is the “quintessential business 

record.” Rollins v. State (2005), 161 Md.App. 34, 81, 866 A.2d 

926. “The essence of the business record hearsay exception 

contemplated in Crawford is that such records or statements are 

not testimonial in nature because they are prepared in the ordinary 

course of regularly conducted business and are ‘by their nature’ not 

prepared for litigation.” People v. Durio (2005), 7 Misc.3d 729, 

734, 794 N.Y.S.2d 863. 

Craig, ¶ 82. 

{¶ 295} However, the reasoning that an autopsy report is admissible as a 

nontestimonial business record was undone by Melendez-Diaz. The court held 

that the business-and-official-records hearsay exception does not permit an 

otherwise inadmissible testimonial statement to be admitted into evidence. 

Melendez-Diaz. at 324. The court pointed out that although documents kept in the 

regular course of business are ordinarily admitted into evidence under the hearsay 

exception, they will not be admitted “if the regularly conducted business activity 
January Term, 2014 

85 

is the production of evidence for use at trial.” Id. at 321. The records may have 

had other purposes unrelated to their later use at trial, but if they were “ ‘made 

under circumstances which would lead an objective witness reasonably to believe 

that the statement would be available for use at a later trial,’ ” they are considered 

testimonial. Id. at 311, quoting Crawford at 52. 

{¶ 296} The question of whether an objective witness who prepared an 

autopsy report would believe that that statement would be available for later use 

at trial is a difficult hurdle for the state to overcome in a case like this one, where 

the medical examiner autopsied a victim who was shot twice in the head. Any 

objective medical examiner would reasonably believe that an autopsy report that 

reflected the examination of a shooting victim would be available for use at a later 

trial. In the autopsy report admitted into evidence in this case, the cause of death 

on the front page of the report is listed as “Gunshot wounds of head. 

HOMICIDE.” Could a medical examiner who makes that conclusion believe 

anything other than that the report will be available for use at a later trial? He 

could not. But this court has distorted the applicable test. 

“Primary Purpose” Test 

{¶ 297} Every autopsy report is not, by definition, testimonial. At least 

one court has held that if a coroner did not contemplate at the time of the autopsy 

that criminal conduct had occurred, then the autopsy report is nontestimonial. 

United States v. James, 712 F.3d 79 (2d Cir.2013). The court in James, like the 

majority, employed a “primary purpose” test in evaluating the autopsy reports. 

Before James, the Second Circuit had held that “autopsy reports could be 

admitted as business records without violating the Confrontation Clause.” Id. at 

87. Recognizing that recent precedents like “Melendez-Diaz and Bullcoming, and 

to a lesser extent Williams, call this categorical conclusion into doubt,” id. at 94, 

the court concluded that “a statement triggers the protections of the Confrontation 
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Clause when it is made with the primary purpose of creating a record for use at a 

later criminal trial,” id. at 95-96. 

{¶ 298} Applying that test, the court held that testimony regarding a 

nontestifying coroner’s autopsy report in a case where foul play had not been 

suspected at the time of the autopsy did not implicate the Confrontation Clause. 

In James, multiple victims had died from poisoning. Dr. Corinne Ambrosi 

testified about an autopsy that was conducted on one victim, Basdeo 

Somaipersaud, by Dr. Heda Jindrak, who did not testify. The court concentrated 

on the fact that murder was not suspected by the medical examiner who prepared 

the report: 

The defendants do not argue * * * that Somaipersaud’s autopsy 

was anything other than routine—there is no suggestion that 

Jindrak or anyone else involved in this autopsy process suspected 

that Somaipersaud had been murdered and that the medical 

examiner’s report would be used at a criminal trial. * * * The 

autopsy report itself refers to the cause of death as “undetermined” 

and attributes it both to “acute mixed intoxication with alcohol and 

chlorpromazine” combined with “hypertensive and arteriosclerotic 

cardiovascular disease.” 

The autopsy was completed * * * substantially before any 

criminal investigation into Somaipersaud’s death had begun. 

During the course of Ambrosi’s lengthy trial testimony, neither the 

government nor defense counsel elicited any information 

suggesting that law enforcement was ever notified that 

Somaipersaud’s death was suspicious, or that any medical 

examiner expected a criminal investigation to result from it. 
January Term, 2014 

87 

Indeed, there is reason to believe that none is pursued in the case of 

most autopsies. 

Id. at 98-99. Because of the nontestifying medical examiner’s lack of expectation 

of criminal involvement, the court concluded that “the autopsy report was not 

testimonial because it was not prepared primarily to create a record for use at 

criminal trial.” Id. at 99. The court concluded similarly about another victim’s 

toxicology report—there was no testimony that a criminal investigation was 

contemplated during the inquiry into the cause of death. Id. at 101. 

{¶ 299} The majority applies the primary-purpose test in a very different 

way from the court in James. The majority does not conclude that the autopsy 

here was not part of a criminal investigation; it could not reasonably do so. 

Instead, it states the categorical conclusion that autopsy reports in Ohio in general 

“are created ‘for the primary purpose of documenting cause of death for public 

records and public health.’ ” Majority opinion at ¶ 57. That is, autopsy records 

are created so that we can have records. That makes no more sense than holding 

that the primary purpose behind the medical examiner’s autopsy report was that 

his boss told him to do it, or so that he could get paid for the week. 

{¶ 300} The majority does not explore why the state requires coroners to 

document causes of death in cases involving suspected violence. A coroner in 

Ohio is statutorily interconnected with Ohio’s criminal-justice apparatus. 

Pursuant to R.C. 313.12(A), 

[w]hen any person dies as a result of criminal or other violent 

means * * * the physician called in attendance, or any member of 

an ambulance service, emergency squad, or law enforcement 

agency who obtains knowledge thereof arising from the person’s 

duties, shall immediately notify the office of the coroner of the 
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known facts concerning the time, place, manner, and 

circumstances of the death * * *. 

{¶ 301} Pursuant to R.C. 313.15, the coroner works with the prosecuting 

attorney and other law-enforcement officials to determine how long a dead body 

should remain in the coroner’s control; a coroner must keep possession of the 

body until he has decided that he no longer requires the body to determine the 

cause of death or until he has decided that law-enforcement officials no longer 

need the body to assist them with their duties 

{¶ 302} Under R.C. 313.09, “[t]he coroner shall promptly deliver, to the 

prosecuting attorney of the county in which such death occurred, copies of all 

necessary records relating to every death in which, in the judgment of the coroner 

or prosecuting attorney, further investigation is advisable.” 

{¶ 303} Pursuant to R.C. 313.10(A), autopsy records “shall be received as 

evidence in any criminal or civil action or proceeding in a court in this state, as to 

the facts contained in those records.” 

{¶ 304} The coroner relies on law enforcement to provide information 

about suspicious deaths, consults with law enforcement on the preservation of 

evidence, and informs prosecuting attorneys when further investigation is 

advisable. It is not enough for the coroner to stamp “Homicide” on an autopsy 

report and file it neatly away. The coroner’s verdict establishes the starting point 

for a homicide investigation and eventual prosecution by determining a primary 

fact: a person has died by unnatural causes, not by his own hand. 

{¶ 305} It is before that statutory backdrop that Dr. Dolinak received the 

victim’s body. She had suffered two bullet wounds to the head. Curtiss Jones of 

the Cuyahoga Coroner’s Office Trace Evidence and DNA Department testified 

that after the body was received and prior to the autopsy, evidence was collected 

to perform tests for gunpowder and trace metals and to evaluate blood and 
January Term, 2014 

89 

fingernail scrapings taken from the victim. Certainly, a reasonable medical 

examiner in Dr. Dolinak’s position would have had to know that this case had 

criminal implications. 

{¶ 306} In a case in which a coroner attests that the cause of death is 

homicide, the medical examiner knows at the time he or she attests to that 

statement that that report will be available for later use at trial. The level of detail 

involved with the autopsy process demonstrates that the primary purpose of an 

autopsy in a criminal case is potential prosecution. If only the fact of her death 

was relevant, why was trace evidence collected from the victim’s body before the 

autopsy? In James, the circuit court looked, as this court should, at the 

expectations of the coroner conducting the autopsy at the time—did the medical 

examiner anticipate that the case was a criminal one? 

{¶ 307} Under the majority’s holding, a court would never look to the 

expectations of a reasonable medical examiner to determine primary purpose. 

The state has done his thinking for him—he may think he’s helping to solve a 

crime, but this court says that he is only trying to keep meticulous records. Under 

the majority opinion, no medical examiner ever creates an autopsy report for the 

primary purpose of creating a record to be used at trial. Instead, I would hold that 

whether a particular autopsy report is testimonial should be determined on a caseby-case basis. 

{¶ 308} The majority decision is based entirely on the word “primary,” 

stating that “[f]or Sixth Amendment purposes, it is only the primary purpose of a 

document that determines whether it is testimonial or not.” (Emphasis sic.) 

Majority opinion at ¶ 62. I do not agree that the word “primary” deserves the 

artificial elevation that the majority gives it. It is not a part of the majority tests 

for expert-witness testimony in Melendez-Diaz or Bullcoming; “primary purpose” 

is not the common thread in the Supreme Court’s jurisprudence on testimonial 

statements. James, 712 F.3d at 108 (Eaton, J., concurring). The primary-purpose 
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test applies to police-interrogation cases like Davis v. Washington, 547 U.S. 813, 

822, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006), in which statements made to police 

by witnesses are evaluated by the declarant’s reason for making the statement. In 

Davis, which concerned whether statements made in a 9-1-1 call to police were 

testimonial, the court held: 

Statements are nontestimonial when made in the course of police 

interrogation under circumstances objectively indicating that the 

primary purpose of the interrogation is to enable police assistance 

to meet an ongoing emergency. They are testimonial when the 

circumstances objectively indicate that there is no such ongoing 

emergency, and that the primary purpose of the interrogation is to 

establish or prove past events potentially relevant to later criminal 

prosecution. 

Id. at 822. 

{¶ 309} I would hold that although the primary-purpose doctrine may 

apply to a lay witness who is in extremis at the time the statement is made, it does 

not apply to professionals regularly involved in creating statements used at trial. 

Instead, I favor the definition of “testimonial statement” as enunciated in Judge 

Eaton’s concurrence in James: “[A] testimonial statement is one having an 

evidentiary purpose, declared in a solemn manner, and made under circumstances 

that would lead a reasonable declarant to understand that it would be available for 

use prosecutorially.” James, 712 F.3d at 108 (Eaton, J., concurring). 

{¶ 310} Under that test, too, the autopsy report in this case would be 

considered testimonial. 

 
January Term, 2014 

91 

Williams

{¶ 311} A consideration of the court’s separate opinions in Williams 

establishes that another possible justification for finding autopsy reports to be 

nontestimonial, that the autopsy report does not target a certain suspect, has been 

foreclosed. The court set forth the factual scenario at issue: 

In petitioner’s bench trial for rape, the prosecution called an expert 

who testified that a DNA profile produced by an outside 

laboratory, Cellmark, matched a profile produced by the state 

police lab using a sample of petitioner's blood. On direct 

examination, the expert testified that Cellmark was an accredited 

laboratory and that Cellmark provided the police with a DNA 

profile. The expert also explained the notations on documents 

admitted as business records, stating that, according to the records, 

vaginal swabs taken from the victim were sent to and received 

back from Cellmark. The expert made no other statement that was 

offered for the purpose of identifying the sample of biological 

material used in deriving the profile or for the purpose of 

establishing how Cellmark handled or tested the sample. Nor did 

the expert vouch for the accuracy of the profile that Cellmark 

produced. 

Williams, ___ U.S. ___, 132 S.Ct. at 2227, 183 L.Ed.2d 89. 

{¶ 312} The lead opinion in Williams, which totaled just four supporters,

offered two reasons why the expert’s statements were not testimonial. First, the 

out-of-court statements from the Cellmark report were related by the testifying 

expert solely for the purpose of explaining the assumptions on which the expert’s 

opinion relied—that the Cellmark result matched the state’s result—and were not 
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offered for their truth. Id. at 2240-2241. That issue is discussed below in this 

opinion’s analysis of the surrogate-testimony issue. Second, and more relevant to 

the issue of the admissibility of the autopsy report itself, the lead opinion 

concluded that even if the Cellmark report had been introduced for its truth, there 

would be no Confrontation Clause violation, because the statements did not 

involve “out-of-court statements having the primary purpose of accusing a 

targeted individual of engaging in criminal conduct.” Id. at 2242. The lead 

opinion explained: 

Here, the primary purpose of the Cellmark report, viewed 

objectively, was not to accuse petitioner or to create evidence for 

use at trial. When the ISP lab sent the sample to Cellmark, its 

primary purpose was to catch a dangerous rapist who was still at 

large, not to obtain evidence for use against petitioner, who was 

neither in custody nor under suspicion at that time. 

Id. at 2243. 

{¶ 313} In my dissent in State v. Crager, 116 Ohio St.3d 369, 2007-Ohio6840, 879 N.E.2d 745, a case involving the admission of a DNA test result 

performed by a nontestifying analyst, I attempted to distinguish the admissible 

autopsy report in Craig from a DNA test that I argued should not be admissible: 

 The Confrontation Clause “applies to ‘witnesses’ against 

the accused.” (Emphasis added.) Crawford, 541 U.S. at 51, 124 

S.Ct. 1354, 158 L.Ed.2d 177. A coroner is concerned with how the 

decedent died rather than who may have killed him. Thus, the 

coroner is not a “witness” against a specific person when he or she 

prepares a report from an autopsy. A coroner’s report is not done at 
January Term, 2014 

93 

the behest of the prosecution in preparation for litigation; it is done 

pursuant to statute. See R.C. 313.131(B). 

Crager, ¶ 107 (Pfeifer, J., dissenting). 

{¶ 314} But one thing that emerged from the fractured court in Williams is 

that a majority of the court rejected the notion that test results are testimonial only 

if the testing targets a known suspect. Justice Thomas, who disagreed with both 

of the lead opinion’s rationales, but concurred in judgment, stated: 

The new primary purpose test [from the Williams plurality 

opinion] asks whether an out-of-court statement has “the primary 

purpose of accusing a targeted individual of engaging in criminal 

conduct.” Ante, at 2242. That test lacks any grounding in 

constitutional text, in history, or in logic. 

Williams, 132 S.Ct. at 2262, 183 L.Ed.2d 89 (Thomas, J., concurring in the 

judgment). 

{¶ 315} Writing for the four justices in dissent, Justice Kagan stated: 

[T]he plurality states that the Cellmark report was “not prepared 

for the primary purpose of accusing a targeted individual.” Ante, at 

2248. Where that test comes from is anyone’s guess. Justice 

Thomas rightly shows that it derives neither from the text nor from 

the history of the Confrontation Clause. * * * And it has no basis 

in our precedents. We have previously asked whether a statement 

was made for the primary purpose of establishing “past events 

potentially relevant to later criminal prosecution”—in other words, 

for the purpose of providing evidence. Davis, 547 U.S. at 822, 126 
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S.Ct. 2266, 165 L.Ed.2d 224. None of our cases has ever 

suggested that, in addition, the statement must be meant to accuse 

a previously identified individual. 

Id. at 2273–2274 (Kagan, J., dissenting). 

{¶ 316} The concurrence and dissent establish that a majority of the court 

rejects the idea that a diagnostic test is not testimonial if it does not target a 

specific individual. 

B 

Testimony by a Substitute Medical Examiner 

{¶ 317} The majority makes the unremarkable statement that “the majority 

of jurisdictions that have examined this issue have concluded that a substitute 

examiner, on direct examination, may at least testify as to his or her own expert 

opinions regarding the autopsy and the victim’s death.” Majority opinion, ¶ 50. 

However, the testifying examiner is greatly restricted from revealing to the jury 

information from the autopsy report of the nontestifying preparer of the report. 

The testifying medical examiner in this case improperly introduced testimonial 

statements contained in the autopsy report prepared by the nontestifying medical 

examiner; he became a surrogate for the presentation of testimonial statements. 

Bullcoming 

{¶ 318} In Bullcoming, ___ U.S. ___, 131 S.Ct. at 2713, 180 L.Ed.2d 610, 

the court held that a scientific report could not be used as substantive evidence 

against the defendant unless the analyst who prepared and certified the report was 

subject to confrontation. “As a rule, if an out-of-court statement is testimonial in 

nature, it may not be introduced against the accused at trial unless the witness 

who made the statement is unavailable and the accused has had a prior 

opportunity to confront that witness.” Id. at 2713. The test in question was a 

blood-alcohol test involving a defendant charged with driving while intoxicated. 
January Term, 2014 

95 

The state attempted to enter the test results into evidence through the testimony of 

another analyst; the analyst who performed the test was unavailable because he 

was on unpaid leave for an undisclosed reason. The court rejected the surrogate 

testimony. 

{¶ 319} The holding applies not just to the original analyst’s conclusions 

and opinions, but also to factual observations he or she may have generated: 

Most witnesses, after all, testify to their observations of factual 

conditions or events, e.g., “the light was green,” “the hour was 

noon.” Such witnesses may record, on the spot, what they 

observed. Suppose a police report recorded an objective fact—

Bullcoming’s counsel posited the address above the front door of a 

house or the read-out of a radar gun. * * * Could an officer other 

than the one who saw the number on the house or gun present the 

information in court—so long as that officer was equipped to 

testify about any technology the observing officer deployed and 

the police department’s standard operating procedures? As our 

precedent makes plain, the answer is emphatically “No.” 

Bullcoming at 2715. 

{¶ 320} Therefore, as the court held in Commonwealth v. Phim, 462 Mass. 

470, 479, 969 N.E.2d 663 (2012), a substitute medical examiner cannot testify as 

to statements of fact contained in an autopsy report: 

Consistent with the Sixth Amendment and traditional 

protections against hearsay * * * a substitute medical examiner 

may not testify on direct examination to the facts, data, and 

conclusions stated in an autopsy report. * * * Accordingly, the 
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prosecutor should not have elicited testimony on the description of 

the fatal wound contained in the nontestifying medical examiner’s 

files, or of the victim’s weight, height, and general physical 

condition. 

Williams 

{¶ 321} Nor can factual statements contained in an autopsy report be 

admitted into evidence as forming the basis of the substitute medical examiner’s 

expert testimony. Navarette, 2013-NMSC-03, 294 P.3d 435, ¶ 13 and 19. The 

court in Navarette derived that conclusion from Williams, based upon the 

rejection by five members of the court in Williams of the lead opinion’s assertion 

that an “an out-of-court statement that supports an expert witness’s opinion is not 

offered to prove the truth of the matter asserted, but is only offered as the basis for 

the expert’s opinion.” Navarette at ¶ 13. Justice Thomas’s concurrence and the 

dissent of Justice Kagan together establish that conclusion. Justice Thomas wrote 

that “statements introduced to explain the basis of an expert’s opinion are not 

introduced for a plausible nonhearsay purpose. There is no meaningful distinction 

between disclosing an out-of-court statement so that the factfinder may evaluate 

the expert’s opinion and disclosing that statement for its truth.” Williams, 132 

S.Ct. at 2257, 183 L.Ed.2d 89 (Thomas, J., concurring in the judgment). Justice 

Kagan wrote for the four dissenters: 

[W]hen a witness, expert or otherwise, repeats an out-of-court 

statement as the basis for a conclusion,* * * the statement’s utility 

is then dependent on its truth. If the statement is true, then the 

conclusion based on it is probably true; if not, not. So to determine 

the validity of the witness's conclusion, the factfinder must assess 

the truth of the out-of-court statement on which it relies. That is 
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why the principal modern treatise on evidence variously calls the 

idea that such “basis evidence” comes in not for its truth, but only 

to help the factfinder evaluate an expert’s opinion “very weak,” 

“factually implausible,” “nonsense,” and “sheer fiction.” D. Kaye, 

D. Bernstein, & J. Mnookin, The New Wigmore: Expert Evidence 

§ 4.10.1, pp. 196-197 (2d ed.2011); id., § 4.11.6, at 24 

(Supp.2012). 

Id. at 2268–2269 (Kagan, J., dissenting). 

Dr. Felo’s Testimony 

{¶ 322} In this case, at trial, Dr. Felo was encouraged by the state to 

review the autopsy report on the witness stand and to reveal the report’s findings 

to the jury. For instance, from the autopsy report, he related: 

 And on the external surface of her body were some—three 

identifying tattoos, some evidence of medical therapy, and two 

specific injuries of the head. Each of those injuries were gunshot 

wounds with one injury, one gunshot wound within the right 

eyebrow, and the second gunshot wound through the left ear and 

into the skull near the ear on the left. 

He also testified as to the internal examination conducted by Dr. Dolinak: 

Specifically there was a broken portion of the skull where 

the right forehead and eye socket is, there was a tear going through 

the right eyeball, and then in the brain there was some evidence of 

some bleeding and bruising caused by the bullets going into the 

skull and striking the brain. 
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{¶ 323} The state also inquired regarding whether Dr. Dolinak had 

performed any microscopic evaluation of the body, and Dr. Felo responded, 

“Samples were examined underneath the microscope of the brain which 

documented the tears and bleeding of the brain caused by bullets going through 

the brain.” 

{¶ 324} I would conclude that the admission of the information contained 

in the autopsy report prepared by Dr. Dolinak through Dr. Felo’s testimony 

violated Maxwell’s confrontation rights. The Sixth Amendment does not 

countenance surrogate testimony, nor does it allow the admission of testimonial 

statements prepared by nontestifying experts to serve as the basis of a testifying 

expert witness’s testimony. 

{¶ 325} Just because the Confrontation Clause would not allow Dr. Felo to 

testify regarding Dr. Dolinak’s work does not mean that the Confrontation Clause 

would prohibit Dr. Felo’s testimony altogether. I agree with the court in 

Navarette that a substitute medical examiner could testify regarding certain 

materials within an autopsy file: 

 This is not to say that all material contained within an 

autopsy file is testimonial and therefore inadmissible. Without 

attempting to catalogue all material in a file that could be 

admissible, we note that an expert witness may express an 

independent opinion regarding his or her interpretation of raw data 

without offending the Confrontation Clause. * * * For example, in 

this case, after being shown the autopsy photographs, [the 

substitute medical examiner] expressed his own opinion about the 

entry and exit wounds, explaining the basis for his opinion. He did 

not simply parrot the opinion or subjective statement of the 
January Term, 2014 

99 

pathologist who performed the autopsy and took the photographs. 

Thus, he was available for cross-examination. 

Navarette, 2013-NMSC-003, 294 P.3d 435, ¶ 22. In this case, too, Dr. Felo 

testified about his own conclusions regarding McCorkle’s wounds while viewing 

autopsy photographs. To that extent, his testimony was proper under the 

Confrontation Clause. 

C 

Other Jurisdictions 

{¶ 326} On the federal level, the Eleventh and D.C. Circuits, in United 

States v. Ignasiak, 667 F.3d 1217, 1231 (11th Cir.2012), and United States v. 

Moore, 651 F.3d 30, 72-73 (D.C.Cir.2011), have held that forensic pathology 

reports are testimonial for Confrontation Clause purposes. 

{¶ 327} Further, at least eight state courts of last resort also find that 

autopsy reports are testimonial. State v. Locklear, 363 N.C. 438, 452, 681 S.E.2d 

293 (2009); Navarette; State v. Kennedy, 229 W.Va. 756, 735 S.E.2d 905 (2012); 

Commonwealth v. Reavis, 465 Mass. 875, 992 N.E.2d 304 (2013); People v. 

Childs, 491 Mich. 906, 810 N.W.2d 563 (2012); Cuesta-Rodriguez v. State, 2010-

OK CR 23, 241 P.3d 214 (2010), cert. denied 132 S.Ct. 259, 181 L.Ed.2d 151 

(2011); Wood v. State, 299 S.W.3d 200, 209-210, 214-215 (Tex.Crim.App.2009); 

State v. Lui, 179 Wash.2d 457, 315 P.3d 493 (2014). 

II 

Other Concerns 

{¶ 328} The varied jurisprudence on the issue of the testimony of 

substitute medical examiners demonstrates that it is a recurring issue that 

demands resolution. Medical examiners die, they retire, and they move between 

jurisdictions. The nontestifying medical examiner who performed the autopsy in 

this case, Dr. Dolinak, is perhaps the poster child for the issue. In Wood, 299 
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S.W.3d 200, the tables were turned: Dr. Dolinak, since moved to Texas, testified 

instead of the medical examiner who conducted the autopsy. The Texas Court of 

Appeals held that Dr. Dolinak improperly revealed contents of the nontestifying 

medical examiner’s autopsy report in his testimony: “Under the circumstances of 

this case, the disclosure of the out-of-court testimonial statements underlying Dr. 

Dolinak’s opinions, even if only for the ostensible purpose of explaining and 

supporting those opinions, constituted the use of the testimonial statements to 

prove the truth of the matters stated in violation of the Confrontation Clause.” Id.

at 213. 

{¶ 329} Although the United States Supreme Court has not dealt squarely 

with the issue, in the corners and footnotes of Melendez-Diaz, the majority and 

dissenters frame the practical concerns about the admissibility or inadmissibility 

of autopsy reports. Writing for the four dissenters in Melendez-Diaz, Justice 

Kennedy mentions the autopsy report as the drum major in a parade of horribles 

created by the majority decision: 

[T]he range of other scientific tests that may be affected by the 

Court’s new confrontation right is staggering. See, e.g., Comment, 

Toward a Definition of “Testimonial”: How Autopsy Reports Do 

Not Embody the Qualities of a Testimonial Statement, 96 Cal. L. 

Rev. 1093, 1094, 1115 (2008) (noting that every court postCrawford has held that autopsy reports are not testimonial, and 

warning that a contrary rule would “effectively functio[n] as a 

statute of limitations for murder”). 

Melendez-Diaz, 557 U.S. at 335, 129 S.Ct. 2527, 2546, 174 L.Ed.2d 314. 

{¶ 330} Justice Scalia, writing for the majority, addresses the dissenters’ 

claim that confrontation is not the only way to challenge forensic testing: 
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101 

“Respondent and the dissent may be right that there are other ways—and in some 

cases better ways—to challenge or verify the results of a forensic test.” Id. at 318. 

But the majority adds in a footnote, “Though surely not always. Some forensic 

analyses, such as autopsies and breathalyzer tests, cannot be repeated, and the 

specimens used for other analyses have often been lost or degraded.” Id. at fn. 5. 

{¶ 331} These excerpts from Melendez-Diaz frame the concerns about 

autopsy reports. On the one hand, there is the concern that autopsy reports can 

last only as long as a preparer survives or stays within the jurisdiction. On the 

other hand, if the person who performed the autopsy is not available to testify, a 

defendant is powerless to rebut the findings of the one medical examiner who, in 

most cases, is the only person who will ever perform an autopsy on the victim in 

question. 

{¶ 332} In my mind, the “statute of limitations on murder” belies the 

argument for autopsy reports being nontestimonial. If having no autopsy report 

available makes a murder conviction impossible, elevating an autopsy to a central 

role in a murder trial, does that not make it all the more imperative that a 

defendant have an opportunity to call into doubt the veracity of the report through 

cross-examination? 

{¶ 333} In reality, in most cases, like this one, the autopsy report will not 

affect the trial in a meaningful way. But there are other cases in which autopsy 

testimony will be crucial. There are innumerable conclusions that a coroner could 

make in an autopsy report—cause of death, time of death, whether certain injuries 

are antemortem or postmortem, the presence of defensive wounds, evidence of 

rape, whether a baby was shaken—that can implicate or exonerate a defendant. 

Further, the determinations made in an autopsy are not mechanical. “Autopsies 

are also much more complex than the identification of a narcotic, and are more 

prone to shades of gray, as their outcome is a diagnosis, not a chemical compound 

match.” Tsiatis, Putting Melendez-Diaz on Ice: How Autopsy Reports Can 
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Survive the Supreme Court’s Confrontation Clause Jurisprudence, 85 St. John’s 

L.Rev. 355, 383 (2011). 

{¶ 334} “Medical examiners are not mere scriveners” and “autopsy reports 

are the product of the skill, methodology, and judgment of the highly trained 

examiners who actually performed the autopsy.” United States v. Ignasiak, 667 

F.3d 1217, 1232 (11th Cir.2012). It is the diagnostic, subjective nature of autopsy 

reports that makes them especially appropriate for cross-examination: 

The crux of the confrontation issue—the need to confront 

and cross-examine the attending forensic pathologist—is that 

forensic pathologists are physicians. Physicians exercise judgment 

and make mistakes, whether they treat living, breathing patients or 

perform forensic autopsies. Courts that have adopted the view that 

forensic autopsy reports simply memorialize objective data are 

misinformed. Neither forensic pathologists nor forensic autopsy 

reports are fungible. Forensic pathologists would not necessarily 

report the same findings if each were, hypothetically, able to 

perform the same autopsy. 

Ginsberg, The Confrontation Clause and Forensic Autopsy Reports—A 

“Testimonial,” 74 La.L.Rev. 117, 168 (2013). 

{¶ 335} The cross-examination of a surrogate is thus inadequate for a 

defendant: 

The only vehicle by which a criminal defendant may 

explore the subjectivity involved in the performance of the forensic 

autopsy—to question the judgment of the examining forensic 

pathologist—is cross-examination. The in-court testimony of the 
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103 

surrogate forensic pathologist who examines the autopsy report 

prepared by the examining pathologist is an inadequate substitute. 

The surrogate witness is not the physician who was required to be 

familiar with the facts and the autopsy protocol, examine the 

victim’s body, perform the autopsy procedure, make and report 

findings, and report the cause and manner of death. The crossexamination of the surrogate yields very little. The surrogate can 

rely on the autopsy findings with impunity. There is simply little 

to be gained by the defendant in the effort to cross-examine the 

surrogate. Cross-examination is the great truth-seeking test, but it 

is an empty exercise when the surrogate testifies at trial. 

Id. at 170. 

{¶ 336} The point made by the court in Melendez-Diaz rings especially 

true with regard to autopsy reports: “Confrontation is designed to weed out not 

only the fraudulent analyst, but the incompetent one as well.” Melendez-Diaz,

557 U.S. at 319, 129 S.Ct. 2527, 174 L.Ed.2d 314. If other forensic tests 

implicate a defendant’s confrontation right, certainly an autopsy report should: 

Both Bullcoming and Melendez–Diaz hold that a laboratory 

analyst’s report of sufficient solemnity triggers the protections of 

the Confrontation Clause. It would be incongruous indeed, if an 

autopsy report requiring numerous skilled judgments on the part of 

a medical examiner, did not require the same confrontation. 

James, 712 F.3d at 111 (Eaton, J., concurring). 

{¶ 337} The central question in the most serious of crimes is whether the 

victim involved suffered an unnatural death at the hands of another. The idea that 
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a person who makes that determination is not subject to cross-examination is at 

direct odds with the Confrontation Clause. 

III 

{¶ 338} Ultimately, I agree with the majority that the admission of Dr. 

Dolinak’s autopsy report into evidence and Dr. Felo’s testimony regarding it 

constituted harmless error beyond a reasonable doubt. I therefore concur in the 

judgment of the majority as to Maxwell’s guilt. I dissent from the imposition of 

the sentence of death. 

O’NEILL, J., concurs in the foregoing opinion. 

______________________ 

Timothy J. McGinty, Cuyahoga County Prosecuting Attorney, and Saleh 

S. Awadallah, Matthew E. Meyer, Thorin O. Freeman, Brian M. McDonough, and 

Adam M. Chaloupka, Assistant Prosecuting Attorneys, for appellee. 

David L. Doughten and John P. Parker, for appellant. 

_________________________