State v. Martin (Slip Opinion) , 2017 Ohio 7556 ( 2017 )


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  • [Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
    v. Martin, Slip Opinion No. 2017-Ohio-7556.]
    NOTICE
    This slip opinion is subject to formal revision before it is published in an
    advance sheet of the Ohio Official Reports. Readers are requested to
    promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
    South Front Street, Columbus, Ohio 43215, of any typographical or other
    formal errors in the opinion, in order that corrections may be made before
    the opinion is published.
    SLIP OPINION NO. 2017-OHIO-7556
    THE STATE OF OHIO, APPELLEE, v. MARTIN, APPELLANT.
    [Until this opinion appears in the Ohio Official Reports advance sheets, it
    may be cited as State v. Martin, Slip Opinion No. 2017-Ohio-7556.]
    Criminal law—Aggravated murder—Convictions and death sentence affirmed.
    (No. 2014-1922—Submitted June 6, 2017—Decided September 13, 2017.)
    APPEAL from the Court of Common Pleas of Trumbull County,
    No. 2012 CR 735.
    ______________
    FRENCH, J.
    {¶ 1} This is a death-penalty appeal of right. Appellant, David Martin, shot
    Jeremy Cole to death and attempted to kill Melissa “Missy” Putnam during a
    kidnapping and robbery at Putnam’s home in Warren. A jury found Martin guilty
    of aggravated murder with three death specifications, and he was sentenced to
    death. For the reasons below, we affirm his convictions and death sentence.
    I. BACKGROUND
    {¶ 2} Putnam was a small-scale marijuana dealer. According to Putnam,
    Martin was at her house buying marijuana on September 26, 2012. She noticed that
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    he was carrying a gun. Although she had known him only a few months, she invited
    him to come back the next day to smoke “blunts.”
    {¶ 3} On the morning of September 27, Putnam contacted her friend Jeremy
    Cole to ask for a ride so that she could look for a job. He picked her up later that
    morning, and she applied for work at various places. They returned to Putnam’s
    house around 10:30 or 11:00 a.m.
    {¶ 4} While Cole and Putnam were talking in her living room, Martin
    knocked on the door. Cole invited him in. Martin entered and sat on the couch
    next to Putnam. Marijuana belonging to Putnam was lying on a nearby table.
    Martin rolled a blunt, which was passed around. As they smoked, Martin got up
    twice to go into the kitchen. When he came back the second time, he had a gun in
    his hand. Putnam recognized it as the same gun she had seen him carrying the day
    before.
    {¶ 5} Martin approached Cole, pointing the gun at his face. Martin called
    Cole a “child molester” and stated that he had been paid $5,000 to kill him. Martin
    ordered Cole to sit on the couch with Putnam.
    {¶ 6} At some point, according to Putnam, Martin took offense at
    something Cole said. Martin told him to shut up, then made him lie face down on
    the floor with his hands behind his back. Martin then ordered Putnam to tie Cole’s
    hands. Using a phone-charger cord, she tied his hands together loosely. Then
    Martin had her tie her own hands together with an extension cord. Evidently
    dissatisfied with Putnam’s work, Martin said, “[Y]ou think I’m playing with you?
    Tie him up.” She retied Cole’s hands more securely, though her own hands were
    bound.
    {¶ 7} Martin dumped the contents of Putnam’s purse onto a chair and took
    her phone and about $100 in cash. He also took her marijuana from the table. He
    made Cole and Putnam go into Putnam’s bedroom and lie on the bed. He went
    through Cole’s pockets and took Cole’s phone.
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    January Term, 2017
    {¶ 8} Martin asked Cole where his money was. Putnam told him that Cole
    was “a young kid” with no money. Martin then put his gun to Cole’s head and
    asked where Cole’s car keys were. Cole said that his girlfriend had them and that
    she would be back in an hour. Putnam said, “Jeremy, don’t lie to him. Let’s just
    get him out of this house.” She offered to help Martin find the keys.
    {¶ 9} Martin retied Putnam’s hands behind her back, and she accompanied
    him to the living room, where they looked for the keys. Martin then took Putnam
    into her daughter’s bedroom and made Putnam lie face down on the floor. Martin
    said: “I promise I’m not gonna let nothing happen to you, but I can’t speak for”
    Cole. He covered Putnam’s head with a towel or shirt, then went back to Cole.
    {¶ 10} Putnam heard a struggle in the other bedroom. Then “[i]t got quiet.”
    Lying on the floor, after using her chin to move the covering slightly, Putnam could
    see Martin’s legs in the hallway outside her bedroom. Putnam testified that Martin
    walked out of her view and into the kitchen and that she heard him opening
    cupboards and drawers there. Then Martin returned to Cole.
    {¶ 11} Putnam heard Cole say, “Oh, my God. I can’t breathe.” Then there
    was quiet. Martin came out and paced nervously, then went back into the room
    with Cole. Putnam heard Cole say: “Get out, Missy. * * * He’s about to shoot me.”
    She then heard a shot.
    {¶ 12} Putnam freed one of her hands. Looking up, she saw Martin standing
    over her. She put her hand over her face and said, “Please don’t shoot me in the
    face.” He said, “I’m sorry, Missy,” and shot her. The bullet passed through
    Putnam’s right hand and entered her neck, leaving fragments in the right side of her
    neck near the base of her skull.
    {¶ 13} According to Martin’s subsequent confession, he left the crime scene
    on foot, walking “from the west side [of town] to the east side.” On his way back,
    he stopped underneath a bridge. There he removed his wristwatch and clothes,
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    except for a pair of shorts, and burned them. By 1:00 p.m., according to his
    girlfriend, Martin had returned home and taken a shower.
    {¶ 14} Meanwhile, Putnam regained consciousness, climbed out a window
    and fled to the house of a neighbor, who called 9-1-1. Warren police officers were
    dispatched. Putnam met them and directed them to her house.
    {¶ 15} Officers found Cole face down on the bedroom floor, alive but
    breathing shallowly. His hands were tied behind his back with the cord of Putnam’s
    bedroom alarm clock, rather than the phone cord Putnam had used. He was taken
    to Trumbull Memorial Hospital, where he died.
    {¶ 16} While examining the crime scene, a detective recovered a shell
    casing from the bed in Putnam’s bedroom and another from the floor of the other
    bedroom. He later sent these to the Ohio Bureau of Criminal Identification and
    Investigation (“BCI”).
    {¶ 17} Dr. Humphrey D. Germaniuk, the Trumbull County coroner,
    performed an autopsy on Cole’s body the next day. Dr. Germaniuk noted that Cole
    had been shot once between the eyes and concluded that the shot had been fired
    from a distance of three to eight inches. He concluded that Cole had died of a
    penetrating gunshot wound to the head. Dr. Germaniuk recovered the jacket of the
    bullet from Cole’s brain and the core from the rear of his skull. These were sent to
    BCI.
    {¶ 18} Detective Wayne Mackey interviewed Putnam on September 27.
    She described the shooter. Mackey assembled and presented to Putnam two
    photographic lineups—one that day and one on October 1—but Putnam did not
    identify anyone from either lineup.      After further investigation, Mackey put
    together another lineup on October 1. This one contained Martin’s photograph.
    When presented with this lineup, Putnam immediately and emphatically identified
    Martin. The next day, Mackey obtained a warrant for Martin’s arrest.
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    January Term, 2017
    {¶ 19} On October 16, 2012, a unit of the Northern Ohio Violent Fugitive
    Task Force arrested Martin in Tallmadge at the apartment of David Fleetwood.
    During the arrest, task-force officers seized a loaded .40-caliber semiautomatic
    handgun. Deputy United States Marshals William Boldin and Anne Murphy, task-
    force members, transported Martin to the Warren police station by way of the
    Summit County jail in Akron.
    {¶ 20} Martin made several incriminating statements to Boldin and Murphy
    while in their custody. Before being transported, he admitted that the gun was his.
    En route to Akron, he made the following remarks: “I did what I had to do.” “I can
    accept the needle. I did what I did, but I had to.” “I’m the trigger man. You got
    the gun. I’m hit. I got no reason to lie.”
    {¶ 21} On the way from Akron to Warren, Martin asked the marshals
    whether they would like to see where he had burned his clothes on the night after
    the shootings. Boldin said that he would, and Martin directed them to the site under
    the bridge. He mentioned that he had burned a watch but that it did not burn
    completely. His directions led the marshals to a pile of burned material, which
    included a partly melted watchband. The marshals then drove Martin to the Warren
    police station, where Detective Mackey interrogated him after advising him of his
    Miranda rights.
    {¶ 22} Martin readily admitted shooting Cole and Putnam but denied
    robbing them. In Martin’s version, he had some sort of dispute with Putnam over
    money and felt threatened by her words and actions. He claimed that he drew his
    gun only after Putnam and Cole went into another room and he overheard Cole say,
    “Let’s do his ass.”
    {¶ 23} Martin specifically denied tying up either victim. According to
    Martin, at some point—the sequence is unclear—Putnam tied Cole up. Sometime
    after that, Martin claimed, he shot Putnam, then had a brief conversation with her.
    Martin said that he shot Cole after Putnam. He admitted that the gun recovered
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    SUPREME COURT OF OHIO
    during his arrest was the one he had used to shoot the victims. (Ballistics analysis
    by BCI confirmed this.) He also told Detective Mackey that he fired a total of two
    shots, which comported with the autopsy findings and Putnam’s medical records.
    {¶ 24} Martin was indicted on two counts of aggravated murder. Counts 1
    and 2 charged Martin with the aggravated murder of Cole. Count 1 charged Martin
    with felony-murder under R.C. 2903.01(B). Count 2 charged murder with prior
    calculation and design under R.C. 2903.01(A). Each count carried three death
    specifications: course of conduct, R.C. 2929.04(A)(5); felony-murder, R.C.
    2929.04(A)(7), predicated on kidnapping; and felony-murder predicated on
    aggravated robbery. The indictment also included six noncapital counts. Count 3
    charged Martin with the attempted aggravated murder of Putnam. Counts 4 through
    7 charged the aggravated robbery and kidnapping of Cole and of Putnam. Count 8
    charged tampering with evidence.1                  Counts 1 through 7 carried firearm
    specifications, R.C. 2941.145.
    {¶ 25} The jury found Martin guilty of all counts and specifications
    presented to it. The state elected to proceed to capital sentencing on Count 2. After
    a mitigation hearing, the jury recommended a death sentence. The trial judge
    weighed the aggravating circumstances against the mitigating factors and sentenced
    Martin to death. (On the noncapital counts, Martin received sentences adding up
    to 61 years of imprisonment.)
    II. JURY ISSUES
    A. Change of Venue
    {¶ 26} In his first proposition of law, Martin contends that pervasive,
    prejudicial pretrial publicity denied him a fair trial and that the trial court erred by
    denying his motion for change of venue.
    1
    The tampering charge, initially Count 10, was renumbered after the original Count 8 was severed
    and Count 9 was nolled.
    6
    January Term, 2017
    {¶ 27} We will not reverse a trial court’s venue ruling without a clear
    showing that the trial court abused its discretion. State v. Thompson, 141 Ohio
    St.3d 254, 2014-Ohio-4751, 
    23 N.E.3d 1096
    , ¶ 91. An abuse of discretion is more
    than a mere error of law or judgment; it implies that a trial court’s decision was
    unreasonable, arbitrary or unconscionable. Blakemore v. Blakemore, 
    5 Ohio St. 3d 217
    , 219, 
    450 N.E.2d 1140
    (1983).
    {¶ 28} When a defendant claims that the trial court erred by denying a
    motion for change of venue on the ground of prejudicial pretrial publicity, our
    analysis proceeds in two steps. We first determine whether the record shows
    pretrial publicity of such a degree and kind as to trigger a presumption that the jury
    was prejudiced against the defendant. If not, we determine whether the defendant
    has established that any juror was actually prejudiced against him.           State v.
    Mammone, 
    139 Ohio St. 3d 467
    , 2014-Ohio-1942, 
    13 N.E.3d 1051
    , ¶ 57.
    1. Pretrial Publicity and Presumptive Prejudice
    {¶ 29} Jurors need not be totally ignorant of the facts of a case. Irvin v.
    Dowd, 
    366 U.S. 717
    , 722, 
    81 S. Ct. 1639
    , 
    6 L. Ed. 2d 751
    (1961). The fact that many
    prospective jurors know something about a case is not dispositive of a motion for
    change of venue. Thompson at ¶ 102.
    {¶ 30} In certain rare cases, pretrial publicity is so damaging that courts
    must conclusively presume prejudice even without a showing of actual bias. See,
    e.g., Rideau v. Louisiana, 
    373 U.S. 723
    , 
    83 S. Ct. 1417
    , 
    10 L. Ed. 2d 663
    (1963);
    Estes v. Texas, 
    381 U.S. 532
    , 542-544, 
    85 S. Ct. 1628
    , 
    14 L. Ed. 2d 543
    (1965);
    Sheppard v. Maxwell, 
    384 U.S. 333
    , 352-357, 
    86 S. Ct. 1507
    , 
    16 L. Ed. 2d 600
    (1966). But this presumption “attends only the extreme case.” Skilling v. United
    States, 
    561 U.S. 358
    , 381, 
    130 S. Ct. 2896
    , 
    177 L. Ed. 2d 619
    (2010); accord State v.
    Treesh, 
    90 Ohio St. 3d 460
    , 464, 
    739 N.E.2d 749
    (2001). To prevail on a claim of
    presumed prejudice, a defendant must make “ ‘a clear and manifest showing * * *
    that pretrial publicity was so pervasive and prejudicial that an attempt to seat a jury
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    SUPREME COURT OF OHIO
    would be a vain act.’ ” State v. Warner, 
    55 Ohio St. 3d 31
    , 46, 
    564 N.E.2d 18
    (1990), quoting State v. Herring, 
    21 Ohio App. 3d 18
    , 
    486 N.E.2d 119
    (9th
    Dist.1984), syllabus.
    {¶ 31} Martin’s argument focuses chiefly on news coverage of his alleged
    involvement in a hostage-taking incident at the Trumbull County jail. According
    to news reports, on April 23, 2014, Martin and two other inmates took a guard
    hostage, threatening him with a homemade knife but releasing him unharmed after
    more than five hours of negotiation. The incident received considerable media
    coverage between April 23 and 30, 2014 (mostly on April 23 and 24), and sporadic
    attention thereafter. No evidence about the hostage-taking incident was introduced
    at trial.
    {¶ 32} Attached to Martin’s motion for change of venue were three DVDs
    containing about 32 minutes of recorded television news broadcasts reporting on
    this incident. All of these broadcasts ran between April 23 and 25, 2014, most on
    April 23. At least one station interrupted prime-time programming to report the
    story. Two broadcasts played excerpts from Martin’s audio-recorded telephone
    interview with a Cleveland TV station during the incident.
    {¶ 33} Also attached to Martin’s motion were 48 stories from newspapers
    (primarily the Youngstown Vindicator and Warren Tribune Chronicle) and news
    media websites, published from October 2012 to July 2014. A supplemental filing
    attached five more stories published during August 2014.
    {¶ 34} Several articles contained information such as Martin’s admissions
    of guilt, his alleged gang affiliations, his prior convictions, his shouting match with
    Putnam during a pretrial hearing, and his reported threat to “grab the first gun I can”
    at his upcoming trial. Twenty-one of the articles were published in April 2014
    during the hostage incident or in its immediate aftermath.
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    January Term, 2017
    {¶ 35} Martin likens this case to Rideau, 
    373 U.S. 723
    , 
    83 S. Ct. 1417
    , 
    10 L. Ed. 2d 663
    .2 Yet “Rideau has been held not to reach even the most highly
    publicized cases that are covered step-by-step and scoop-by-scoop in evening
    newscasts and front page stories.” 6 LaFave, Israel, King, & Kerr, Criminal
    Procedure, Section 23.2(a), at 307-308 (4th Ed.2015); see Mammone, 139 Ohio
    St.3d 467, 2014-Ohio-1942, 
    13 N.E.3d 1051
    , at ¶ 60-68. A brief look at Rideau
    explains why.
    {¶ 36} In Rideau, the sheriff’s office had filmed an interrogation of the
    defendant, Rideau, in which he confessed to bank robbery, kidnapping, and murder.
    The confession was broadcast three times on television seven weeks before
    Rideau’s trial for those crimes. Audiences of 20,000 to 53,000 saw the broadcasts
    in a total parish population of approximately 150,000. Rideau at 724. After “tens
    of thousands” had seen and heard Rideau “personally confessing in detail,” the trial
    was a “hollow formality,” and prejudice could be conclusively presumed “without
    pausing to examine a particularized transcript of the voir dire.” 
    Id. at 726-727.
            {¶ 37} Pretrial publicity in Martin’s case did not approach that level. “[T]he
    controlling factor in [Rideau] was the fact that the public viewed the confession in
    a televised format * * *; actually seeing and hearing the confession, as one would
    in a courtroom, would create a certainty of belief that would be difficult for the
    public to lay aside.” (Emphasis sic.) DeLisle v. Rivers, 
    161 F.3d 370
    , 384 (6th
    Cir.1998) (en banc). But Martin’s confession was never broadcast to the public.
    Compare Mammone at ¶ 63.
    {¶ 38} Indeed, the pretrial publicity in this case cannot be fairly called
    “pervasive.” Four months went by between the end of the hostage incident and the
    2
    Martin also cites Sheppard, 
    384 U.S. 333
    , 
    86 S. Ct. 1507
    , 
    16 L. Ed. 2d 600
    , and Estes, 
    381 U.S. 532
    ,
    
    85 S. Ct. 1628
    , 
    14 L. Ed. 2d 543
    , but those cases “are not particularly instructive because they
    ‘involved media interference with courtroom proceedings during trial’ ” (emphasis sic), Mammone,
    
    139 Ohio St. 3d 467
    , 2014-Ohio-1942, 
    13 N.E.3d 1051
    , at ¶ 60, quoting 
    Skilling, 561 U.S. at 382
    ,
    
    130 S. Ct. 2896
    , 
    177 L. Ed. 2d 619
    , fn. 14. No such interference occurred in this case.
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    SUPREME COURT OF OHIO
    start of jury selection on August 28, 2014. Only 13 of the stories attached to
    Martin’s venue motion and supplement were published after April 30 and only nine
    from June 28 to August 26.
    {¶ 39} The record shows that few prospective jurors recalled the media
    coverage and that it left little impression even on those who did. The jury
    questionnaire in this case addressed pretrial publicity, asking whether the
    prospective jurors had “heard anything about David Martin before today” and
    whether they had “heard anything about this case before today.” One hundred
    twenty-eight prospective jurors completed this questionnaire. Seventy-six of them,
    or 59 percent, answered “No” to both questions; that is, they did not recall hearing
    anything about either Martin or the case.
    {¶ 40} Fifty-two prospective jurors (41 percent) responded that they had
    heard about the case, almost all through the news media, but 32 of those 52 had not
    formed any opinion about guilt or punishment based on pretrial publicity. Thus,
    108 prospective jurors—84 percent of those who completed questionnaires—either
    had heard nothing at all about the case or had not been influenced by whatever they
    had heard. Compare Irvin, 366 U.S at 727, 
    81 S. Ct. 1639
    , 
    6 L. Ed. 2d 751
    (90
    percent of prospective jurors had opinions on guilt; 8 of 12 jurors thought the
    defendant guilty before trial).
    {¶ 41} As for the hostage incident, only one prospective juror indicated
    knowledge of the incident on the questionnaire. Another volunteered on voir dire
    that she knew of the incident, not through the media but because she was working
    next door to the jail at the time. The trial court excused both of these prospective
    jurors for cause.
    {¶ 42} Moreover, only four venire members—including one of the two just
    mentioned—were excused because of exposure to pretrial publicity. “This * * * by
    no means suggests a community with sentiment so poisoned against [Martin] as to
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    January Term, 2017
    impeach the indifference of jurors who displayed no animus of their own.” Murphy
    v. Florida, 
    421 U.S. 794
    , 803, 
    95 S. Ct. 2031
    , 
    44 L. Ed. 2d 589
    (1975).
    {¶ 43} On this record, we cannot find that this is one of the rare cases in
    which publicity was so pervasive and prejudicial that we must presume prejudice.
    Absent that presumption, “we conclude that the [trial court], in declining to order a
    venue change, did not exceed constitutional limitations.” 
    Skilling, 561 U.S. at 385
    ,
    
    130 S. Ct. 2896
    , 
    177 L. Ed. 2d 619
    .
    2. Actual Juror Bias
    {¶ 44} Without a presumption of prejudice, a defendant claiming that
    pretrial publicity has denied him a fair trial must ordinarily show that one or more
    jurors were actually biased against him. State v. Frazier, 
    115 Ohio St. 3d 139
    , 2007-
    Ohio-5048, 
    873 N.E.2d 1263
    , ¶ 235.
    {¶ 45} Of the 12 persons seated on the jury, eight stated on their
    questionnaires that they had never heard of Martin and knew nothing about the case.
    During the guilt phase, an alternate juror replaced one of these eight. The alternate
    stated on his questionnaire that he had been exposed to pretrial publicity but had
    formed no opinion about the case. Three of the other seated jurors also had been
    exposed to pretrial publicity but likewise had formed no opinion.
    {¶ 46} Finally, juror No. 7 stated on her questionnaire that she had read one
    or two newspaper articles about the case but did not remember much about it.
    While this juror admitted on her questionnaire to forming an opinion about who
    committed the charged shootings, she stated on voir dire that her only opinion about
    the case was that it was “bad” and said that she could “absolutely” set her opinion
    aside. She indicated on her questionnaire that she did not hold any opinion as to
    the appropriate sentence. On voir dire, she said that she had read about the case
    “back when it happened,” not recently, and that she understood that what she had
    read was not evidence.
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    SUPREME COURT OF OHIO
    {¶ 47} The record does not show that any juror in this case was biased by
    pretrial publicity. Since Martin has “failed to establish [either] that a presumption
    of prejudice arose or that actual bias infected the jury that tried him,” 
    Skilling, 561 U.S. at 398
    , 
    130 S. Ct. 2896
    , 
    177 L. Ed. 2d 619
    , we overrule his first proposition of
    law.
    B. Ineffective Assistance of Counsel on Voir Dire
    {¶ 48} In his second proposition of law, Martin contends that his trial
    counsel rendered ineffective assistance in conducting voir dire. To establish
    ineffective assistance, Martin must show (1) deficient performance by counsel, i.e.,
    performance falling below an objective standard of reasonable representation, and
    (2) prejudice, i.e., a reasonable probability that, but for counsel’s errors, the
    proceeding’s result would have been different. Strickland v. Washington, 
    466 U.S. 668
    , 687-688, 694, 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    (1984); State v. Bradley, 
    42 Ohio St. 3d 136
    , 
    538 N.E.2d 373
    (1989), paragraph two of the syllabus.
    1. Failure to Inquire about Hostage Incident
    {¶ 49} Martin contends that defense counsel rendered ineffective assistance
    by failing to inquire on voir dire as to prospective jurors’ knowledge of his alleged
    involvement in the hostage-taking incident four months before. He also argues that
    counsel should have asked juror No. 6, whose husband was a Trumbull County
    reserve deputy sheriff, whether she had discussed the hostage situation with her
    husband and whether he had had contact with Martin.
    {¶ 50} In general, “it is for [trial] counsel to determine what questions
    should be asked on voir dire.” State v. Group, 
    98 Ohio St. 3d 248
    , 2002-Ohio-7247,
    
    781 N.E.2d 980
    , ¶ 139. We have “consistently declined to ‘second-guess trial
    strategy decisions’ or impose ‘hindsight views about how current counsel might
    have voir dired the jury differently.’ ” State v. Mundt, 
    115 Ohio St. 3d 22
    , 2007-
    Ohio-4836, 
    873 N.E.2d 828
    , ¶ 63, quoting State v. Mason, 
    82 Ohio St. 3d 144
    , 157,
    12
    January Term, 2017
    
    694 N.E.2d 932
    (1998); see also Bradley at 143-144 (failing to ask voir dire
    questions about pretrial publicity was not ineffective assistance).
    {¶ 51} The decision of Martin’s counsel not to ask prospective jurors what
    they knew about the hostage situation falls “within the wide range of reasonable
    professional assistance,” 
    Strickland, 466 U.S. at 689
    , 
    104 S. Ct. 2052
    , 
    80 L. Ed. 2d 674
    . The prospective jurors had already filled out questionnaires requiring them to
    disclose whether they had ever heard of Martin and, if so, what they remembered
    about him.    The overwhelming majority were unaware of Martin’s alleged
    involvement in the hostage incident. Presumably, defense counsel wanted them to
    stay unaware of it.
    {¶ 52} Had Martin’s counsel asked specific questions about the incident,
    they would have disclosed a potentially prejudicial fact to many prospective jurors
    who otherwise would not have known about it. Counsel could have reasonably
    calculated that (1) revealing the incident to prospective jurors would harm Martin’s
    chance of avoiding a death sentence and (2) this risk outweighed the possibility that
    questioning might reveal a few prospective jurors who knew about the incident but
    had failed to mention it on their questionnaires. Counsel’s decision to avoid
    disclosing the hostage incident to prospective jurors by asking them about it did not
    fall below an objective standard of reasonable representation and hence did not
    constitute “deficient performance,” 
    id. at 687.
           {¶ 53} Nor has Martin shown that his counsel’s choice resulted in prejudice.
    None of the 12 jurors who found Martin guilty and recommended his death sentence
    indicated any knowledge of the hostage incident on their questionnaires. Nothing
    in the record shows a reasonable probability that the result of the trial would have
    been otherwise if Martin’s counsel had asked about the incident on voir dire.
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    SUPREME COURT OF OHIO
    2. Failure to Inquire about Pretrial Publicity
    {¶ 54} Martin complains that defense counsel did not question four jurors
    (Nos. 4, 8, 10, and 12) on pretrial publicity, even though each admitted on the
    questionnaire or on voir dire that he or she had been exposed to publicity.
    {¶ 55} The questionnaires of juror No. 4 (originally an alternate juror but
    ultimately seated to replace the original juror No. 4) and juror No. 12 indicated
    minimal exposure. Juror No. 4 stated that his exposure consisted of “[j]ust once
    * * * glancing at headlines while standing in line.” Juror No. 12 indicated that he
    had seen one brief newspaper article about the case. On voir dire, he said that he
    had formed no opinion and could set aside what he had read.
    {¶ 56} Juror No. 8 knew “a little bit” about the case. She recalled hearing
    about the crimes when they happened (nearly two years before) and had recently
    seen an article on the upcoming trial. But on voir dire, she appeared to have only a
    vague memory of what she had heard and she stated that she could disregard it. She
    understood that what one hears in the media is not always true. She had formed no
    opinion about Martin or his guilt or innocence.
    {¶ 57} Juror No. 10 stated on voir dire that he had seen the end of a news
    report about the case the previous night while making dinner but had formed no
    opinion from it. Martin claims that his counsel “did not ask [juror No. 10] one
    question” about pretrial publicity, but this is incorrect. Defense counsel asked:
    “[D]o you remember anything else other than you told [the prosecutor] about what
    you saw?” The juror said, “No. Like I said, I just happened to see it. When I first
    saw it, I wasn’t even sure it was the same case * * *. * * * And I just heard a little
    bit of it.” Given that the juror had already said, under oath, that he had formed no
    opinion from seeing this snippet, defense counsel could reasonably have concluded
    that further inquiry on this point would not be worthwhile. Martin has not shown
    that counsel’s voir dire performance with respect to any of these jurors fell below
    an objective standard of reasonable representation.
    14
    January Term, 2017
    {¶ 58} Martin also complains that defense counsel asked prospective juror
    No. 74 only one question about pretrial publicity and failed to “follow up” by
    inquiring into this venire member’s ability to consider mitigation. But prospective
    juror No. 74 did not sit on the jury. So even if counsel’s performance in questioning
    him was deficient, there was no prejudice.
    3. Insufficient Inquiry into Attitudes on Death Penalty
    {¶ 59} Martin argues that defense counsel should have questioned juror
    Nos. 5 and 7 more deeply about their attitudes on the death penalty to determine
    whether they would automatically vote to recommend a death sentence. See
    generally Morgan v. Illinois, 
    504 U.S. 719
    , 
    112 S. Ct. 2222
    , 
    119 L. Ed. 2d 492
    (1992)
    (automatic-death-penalty jurors are biased and may not sit on capital case).
    {¶ 60} But defense counsel did question both jurors on this point, and both
    gave responses showing that they were not automatic-death-penalty jurors. Juror
    No. 5 said that Martin’s history and background would be important in deciding
    between life imprisonment and the death penalty “[b]ecause * * * I think it might
    have a lot to do with why he did what he did.” Similarly, juror No. 7 stated that in
    deciding between life and death, she would “have to” consider how Martin was
    raised and what influences shaped him.
    {¶ 61} Martin cites Morgan for the proposition that a juror may be biased
    in favor of the death penalty despite giving affirmative answers to “general
    questions of fairness and impartiality,” 
    id. at 735.
    But the questions defense
    counsel asked juror Nos. 5 and 7 were not “general questions of fairness and
    impartiality,” nor were their responses mere general pledges to be fair. These were
    specific responses to specific questions about whether the jurors would consider
    Martin’s background and upbringing in determining his sentence. There is no
    reason, beyond rank speculation, to suppose that further questioning would have
    elicited different responses.
    15
    SUPREME COURT OF OHIO
    {¶ 62} Martin also complains that his counsel did not attempt to rehabilitate
    prospective juror No. 53, who was excused for cause after stating three times that
    she could not impose the death penalty and twice that she did not know whether
    she could. Prospective juror No. 53 was asked five times whether she could impose
    the death penalty, and she never once said that she could. Defense counsel were
    surely not unreasonable in declining to ask the same question a sixth time.
    4. Insufficient Inquiry into Potential Personal Biases
    a. Juror Who Knew Victim
    {¶ 63} Juror No. 9 had been a co-worker of Jeremy Cole’s for about a month
    and had seen him at work on the day of the murder. However, they were not friends.
    Juror No. 9 said that he could set aside his acquaintance with Cole and would not
    take “greater offense” because Cole was the victim as opposed to “anyone else.”
    {¶ 64} On voir dire, defense counsel asked juror No. 9, given that he had
    known Cole: “What would you do?” The juror responded: “Be fair.” Counsel
    further asked: “Even if it means taking some heat from Jeremy Cole’s family in the
    event you do not take this man’s life?” Juror No. 9 again answered: “Yep. Be fair.”
    {¶ 65} The defense challenged this juror for cause on the sole ground of his
    having known Cole. The trial court overruled the challenge. See State v. Sheppard,
    
    84 Ohio St. 3d 230
    , 235, 
    703 N.E.2d 286
    (1998) (under Crim.R. 24(B), fact that
    prospective juror knew victim is not per se basis for dismissal for cause).
    {¶ 66} Martin focuses on juror No. 9’s “be fair” responses to defense
    counsel. He argues that under Morgan, 
    504 U.S. 719
    , 
    112 S. Ct. 2222
    , 
    119 L. Ed. 2d 492
    , these responses are insufficient because the juror may have believed that
    “being fair meant [e]nsuring the man who killed his co-worker was put to death.”
    For this reason, he contends, defense counsel should have asked the juror more
    specific questions to elicit what his idea of “fairness” was.
    {¶ 67} Martin’s argument ignores the juror’s previous responses. The trial
    court specifically had asked juror No. 9 whether, having known the victim and
    16
    January Term, 2017
    spoken with him on the day of his murder, he could “set all of that aside,” and he
    had responded, “Yes.” The juror had stated that he would not take “greater offense”
    at the crime because he had known Cole. And the prosecution had asked about the
    juror’s acquaintance with Cole: “Could that, in any way, impact your ability to be
    a juror?” The juror had answered: “No.”
    {¶ 68} Finally, defense counsel asked juror No. 9 several questions
    designed to elicit whether the fact that he had known the victim would affect his
    verdict. The juror consistently indicated that it would not. These responses were
    credible because juror No. 9’s acquaintance with Cole was relatively distant.
    Martin’s contention that more questions or different questions would have been
    more successful in revealing bias is merely speculative.
    b. Juror Who Lived Near Murder Scene
    {¶ 69} Juror No. 2 lived “a couple streets” from the murder scene. She had
    heard about the shootings through the local “grapevine” and on the news and had
    discussed the incident with her husband at the time but “didn’t * * * think nothing
    of it.” She had formed no opinion about the case and recalled nothing about the
    news coverage or local discussion that would interfere with her impartiality. The
    defense asked only one question about the crime’s proximity to the juror’s
    residence.
    {¶ 70} Again, Martin argues that his counsel failed to “probe” deeply
    enough. However, defense counsel did ask numerous questions as to whether juror
    No. 2 could consider the mitigating factors—the crucial issue, since the defense
    strategy was to concede guilt and concentrate on avoiding a death sentence—and
    she indicated that she could. Moreover, the prosecution had already asked the juror
    whether “[t]he fact that this happened a couple streets from where you live and
    where you raised your kids” would affect her ability to serve, and she had
    responded, “No.” Again, any suggestion that different questions would have
    exposed bias on juror No. 2’s part is speculative.
    17
    SUPREME COURT OF OHIO
    5. Failure to Use Peremptories
    {¶ 71} Finally, Martin complains that his counsel did not exercise any
    peremptory challenges, even against four jurors whom they had unsuccessfully
    challenged for cause—the original juror No. 4 (not the alternate juror later seated
    as the replacement), and juror Nos. 6, 8, and 9. Instead, the defense and prosecution
    agreed that the first 12 jurors who had survived voir dire would be seated without
    challenge by either side. Both parties stated that they were satisfied with the jury.
    {¶ 72} The record does not disclose why the parties came to this agreement,
    but it is reasonable to assume that each side got some jurors it wanted, avoided
    some it did not want or both. And Martin needed the vote of only one juror to avoid
    the death penalty, which was his primary objective in this case. See State v.
    Springer, 
    63 Ohio St. 3d 167
    , 
    586 N.E.2d 96
    (1992), syllabus (if jury cannot reach
    unanimous penalty-phase verdict, trial court must impose life sentence).
    {¶ 73} “Decisions on the exercise of peremptory challenges are a part of
    trial strategy * * *.” State v. Goodwin, 
    84 Ohio St. 3d 331
    , 341, 
    703 N.E.2d 1251
    (1999). These are judgment calls—subjective by nature, often based on intuition
    and firsthand observation by trial counsel that a reviewing court cannot replicate.
    Hence, it is seldom possible to find that counsel’s decision to exercise or not
    exercise peremptory challenges falls below an objective standard of reasonable
    representation. Mundt, 
    115 Ohio St. 3d 22
    , 2007-Ohio-4836, 
    873 N.E.2d 828
    , at
    ¶ 83; State v. Pickens, 
    141 Ohio St. 3d 462
    , 2014-Ohio-5445, 
    25 N.E.3d 1023
    ,
    ¶ 214, 216. Martin makes no such showing here.
    6. Conclusion
    {¶ 74} Martin’s claims fail to establish ineffective assistance of counsel. In
    no claim has he shown that his trial counsel performed deficiently, nor has he
    established prejudice. We overrule his second proposition of law.
    18
    January Term, 2017
    III. SUPPRESSION ISSUES
    A. Entry of Third-Party Premises without Search Warrant
    {¶ 75} Police officers apprehended Martin in the apartment of David
    Fleetwood. Officers entered the apartment to arrest him; during the entry, they
    recovered the murder weapon. At trial, Martin filed a motion to suppress the
    murder weapon as evidence. After a hearing, the trial court denied the motion.
    {¶ 76} In his ninth proposition of law, Martin contends that the marshals’
    entry into the apartment violated the Fourth Amendment to the United States
    Constitution because, while the marshals had an arrest warrant for Martin, they
    lacked a search warrant authorizing them to enter and search Fleetwood’s
    apartment. See generally Steagald v. United States, 
    451 U.S. 204
    , 
    101 S. Ct. 1642
    ,
    
    68 L. Ed. 2d 38
    (1981). Hence, Martin contends, the trial court erred by denying his
    motion to suppress.
    1. Waiver
    {¶ 77} The state argues that Martin failed to preserve the issue of the
    allegedly illegal search because his motion to suppress did not raise it specifically
    enough. See Crim.R. 47 (requiring that a motion “state with particularity the
    grounds upon which it is made”); Xenia v. Wallace, 
    37 Ohio St. 3d 216
    , 219, 
    524 N.E.2d 889
    (1988) (defendant must give “notice of the specific legal and factual
    grounds upon which the validity of the search and seizure is challenged”). We
    disagree. Martin’s motion set forth the specific “constitutional amendments [he]
    alleged were violated” and “set forth some underlying factual basis to warrant a
    hearing,” State v. Shindler, 
    70 Ohio St. 3d 54
    , 58, 
    636 N.E.2d 319
    (1994). We note
    that the state did not object to the motion’s supposed lack of specificity until after
    the suppression hearing. Nothing in the record indicates that the prosecution’s
    ability “to prepare [its] case” was impaired in any way, Wallace at 218. Thus, we
    reject the state’s waiver argument and proceed to the merits of Martin’s claim.
    19
    SUPREME COURT OF OHIO
    2. Expectation of Privacy
    {¶ 78} “[F]or Fourth Amendment purposes, an arrest warrant founded on
    probable cause implicitly carries with it the limited authority to enter a dwelling in
    which the suspect lives when there is reason to believe the suspect is within.”
    Payton v. New York, 
    445 U.S. 573
    , 603, 
    100 S. Ct. 1371
    , 
    63 L. Ed. 2d 639
    (1980).
    However, an arrest warrant does not authorize police to enter the premises of a third
    party to arrest the subject of the warrant. For that, they must obtain a search warrant
    unless an exception to the warrant requirement justifies entry. Steagald at 211-216.
    {¶ 79} To challenge the admission of evidence found during a warrantless
    search, however, a defendant must have a legitimate expectation of privacy in the
    premises searched. Rakas v. Illinois, 
    439 U.S. 128
    , 130, 
    99 S. Ct. 421
    , 
    58 L. Ed. 2d 387
    (1978), fn. 1; Minnesota v. Carter, 
    525 U.S. 83
    , 88, 
    119 S. Ct. 469
    , 
    142 L. Ed. 2d 373
    (1998). In Steagald, the defendant seeking suppression of evidence had that
    expectation because the home searched was his 
    residence. 451 U.S. at 208-211
    ,
    
    101 S. Ct. 1642
    , 
    68 L. Ed. 2d 38
    . The court expressly noted that it was not deciding
    “whether the subject of an arrest warrant can object to the absence of a search
    warrant when he is apprehended in another person’s home.” 
    Id. at 219.
           {¶ 80} Martin here raises the question reserved in Steagald: whether the
    person named in an arrest warrant may object, under the Fourth Amendment, when
    police arrest him in another person’s home after entering without a search warrant.
    {¶ 81} The overwhelming majority of decisions hold that when the police
    enter one person’s home without a search warrant in order to execute an arrest
    warrant upon another person, the person named in the arrest warrant may not
    complain of the Fourth Amendment violation. See, e.g., United States v. Bohannon,
    
    824 F.3d 242
    , 248-252 (2d Cir.2016), cert. denied, __ U.S. __, 
    137 S. Ct. 628
    , 
    196 L. Ed. 2d 517
    ; United States v. Pruitt, 
    458 F.3d 477
    , 481-482 (6th Cir.2006); United
    States v. Clifford, 
    664 F.2d 1090
    , 1092-1093 (8th Cir.1981); United States v.
    Underwood, 
    717 F.2d 482
    , 483-484 (9th Cir.1983) (en banc); United States v.
    20
    January Term, 2017
    Hollis, 
    780 F.3d 1064
    , 1068-1069 (11th Cir.2015); Commonwealth v. Tatum, 
    466 Mass. 45
    , 50-53, 
    992 N.E.2d 987
    (2013); State v. deLottinville, 
    890 N.W.2d 116
    ,
    119-122 (Minn.2017) (petition for certiorari filed May 19, 2017).
    {¶ 82} Some authorities, however, take the contrary view that because a
    guest may have a legitimate expectation of privacy in his host’s residence, he may
    seek to suppress evidence obtained by warrantless entry into the host’s residence,
    even though the guest was the subject of an arrest warrant. E.g., 6 LaFave, Search
    and Seizure: A Treatise on the Fourth Amendment, Section 11.3(b), at 203 (5th
    Ed.2012); Underwood at 486-492 (Skopil, J., dissenting).
    {¶ 83} We need not choose today between these opposing views; on this
    record, Martin loses either way. Martin had the burden to show that he had a
    legitimate expectation of privacy in Fleetwood’s apartment. 
    Rakas, 439 U.S. at 130
    , 
    99 S. Ct. 421
    , 
    58 L. Ed. 2d 387
    , fn. 1; 6 LaFave at 204-205. Even assuming that
    a guest who is the subject of an arrest warrant may challenge the lack of a warrant
    to search his host’s residence, there was no evidence that Martin was a guest in
    Fleetwood’s apartment.
    {¶ 84} Neither Martin nor Fleetwood testified at the suppression hearing; in
    fact, Martin submitted no evidence at all. His presence in the apartment was
    “totally unexplained,” United States v. Smith, 
    783 F.2d 648
    , 650 (6th Cir.1986).
    Because Martin failed to establish that he had a legitimate expectation of privacy
    in Fleetwood’s apartment, the trial court did not err in overruling Martin’s motion
    to suppress the murder weapon. We overrule Martin’s ninth proposition of law.
    B. Miranda Issue
    {¶ 85} After arresting Martin, officers did not immediately read him the
    Miranda warnings. See generally Miranda v. Arizona, 
    384 U.S. 436
    , 
    86 S. Ct. 1602
    ,
    
    16 L. Ed. 2d 694
    (1966). Martin made incriminating statements to Deputy Marshals
    Boldin and Murphy at the arrest site in Tallmadge and while being transported from
    there to the Summit County jail in Akron. Boldin administered Miranda warnings
    21
    SUPREME COURT OF OHIO
    to Martin before leaving the jail. The marshals then took him to the Warren police
    station. On the way, Martin made further incriminating statements. At the station,
    Detective Mackey administered Miranda warnings again, obtained Martin’s
    written waiver, and interrogated him.
    {¶ 86} At trial, Martin filed a motion to suppress his statements on the
    ground that the arresting officers failed to administer Miranda warnings at the time
    of arrest. The trial court denied the motion. The court found that Martin’s
    statements during the trip to Akron were “unsolicited” and “spontaneous.” The
    court further found that Boldin advised Martin of his Miranda rights in Akron and
    that Martin “continued to offer unsolicited statements” on the ride to Warren, “as
    well as respond to inquiries from the transporting deputies.”
    {¶ 87} In his tenth proposition of law, Martin contends that the trial court
    should have suppressed his statements to Boldin, Murphy, and Mackey because he
    was not immediately advised of his Miranda rights at the time of his arrest. For
    purposes of analysis, we consider Martin’s statements in three parts: his statements
    before being advised of his rights at or on the way to the Summit County jail, his
    statements while being transported from the jail to the Warren police station, and
    his confession at the station.
    1. Statements between Arrest and Arrival at Summit County Jail
    {¶ 88} “The fundamental import of the privilege while an individual is in
    custody is not whether he is allowed to talk to the police without the benefit of
    warnings and counsel, but whether he can be interrogated. * * * Volunteered
    statements of any kind are not barred by the Fifth Amendment and their
    admissibility is not affected by our holding today.” (Emphasis added.) 
    Miranda, 384 U.S. at 478
    , 
    86 S. Ct. 1602
    , 
    16 L. Ed. 2d 694
    . As a result, the requirement of
    Miranda warnings “applies only when a suspect is subjected to both custody and
    interrogation.” State v. Neyland, 
    139 Ohio St. 3d 353
    , 2014-Ohio-1914, 
    12 N.E.3d 1112
    , ¶ 119.
    22
    January Term, 2017
    {¶ 89} The trial court found that the statements Martin made before he was
    advised of his rights were unsolicited, spontaneous, and “not in response to any
    inquiries of law enforcement.” The record of the suppression hearing supports this
    finding.
    {¶ 90} According to Boldin’s testimony, Martin began talking at the arrest
    site, a mere “minute or so after” the marshals recovered the gun. Martin admitted
    that the gun was his, explaining that he did not want Fleetwood to get into trouble.
    He explained that he had placed the gun on the floor because he was afraid that he
    would be shot. Boldin testified that the marshals “did not ask him any questions
    whatsoever” except to confirm his identity.
    {¶ 91} Martin was just as talkative on the way from Tallmadge to Akron.
    Both Boldin and Murphy testified that they did not ask him any questions during
    this leg of the journey. Indeed, Boldin testified that he “couldn’t have questioned
    him about the crime if [he had] wanted to,” because he knew nothing about the
    incident except that “it was a firearm crime” and that it took place in Warren.
    Instead, Boldin testified, Martin “was trying to engage us in conversation.”
    {¶ 92} The uncontradicted suppression-hearing testimony of Boldin and
    Murphy shows that they asked Martin no questions (aside from confirming his
    identity) before arriving at the Summit County jail. When Martin made these
    statements, he was in custody but he was not subjected to interrogation. Therefore,
    “Miranda does not apply.” State v. Dunn, 
    131 Ohio St. 3d 325
    , 2012-Ohio-1008,
    
    964 N.E.2d 1037
    , ¶ 24.
    2. Statements between Summit County Jail and Warren Police Station
    {¶ 93} At some point, either during the trip to Akron or in the jail parking
    lot, Boldin advised Martin of his Miranda rights; Martin replied, “I’ve been through
    this before. I understand them.” The trial court found no evidence to the contrary.
    Martin expressed his willingness to speak to the marshals. Boldin and Murphy did
    not obtain a written waiver because they did not have a waiver form with them.
    23
    SUPREME COURT OF OHIO
    {¶ 94} After Boldin gave the Miranda warnings, Martin made further
    unsolicited statements about the charged crimes on the way to Warren. He said
    something about him and Putnam “smoking weed” and denied the truth of certain
    stories that had appeared in the news media.
    {¶ 95} At one point, Martin mentioned that his mother had been a homicide
    victim and claimed that he had spared Putnam’s life so that her children would not
    grow up motherless. Boldin testified that after Martin raised the subject of his
    mother’s death, he “did ask [Martin] some questions” about it, such as when it
    happened and how old he was, and that they had a “back-and-forth conversation”
    about it. However, Boldin did not ask any questions about the charged crimes.
    {¶ 96} After that, all conversation ceased for at least several minutes. When
    they entered Warren, Martin asked the marshals whether they wanted to see “where
    [he had] burned [his] clothes that night.” Boldin said, “Yes,” and Martin gave
    directions to the spot.
    {¶ 97} The unrebutted testimony at the suppression hearing shows that
    Martin’s statements about the shootings while being transported from the Summit
    County jail to the Warren police station, and his offer to show the marshals where
    he had burned his clothing, were spontaneous and unsolicited, not the result of
    interrogation; as a result, the trial court did not err by declining to suppress them.
    Neyland, 
    139 Ohio St. 3d 353
    , 2014-Ohio-1914, 
    12 N.E.3d 1112
    , at ¶ 119.
    {¶ 98} Although Boldin did not ask Martin any questions about the charged
    crimes, he did ask about his mother’s death, after Martin raised the subject. But
    even if the questions about the death of Martin’s mother could be construed as an
    interrogation, those questions came only after Boldin administered Miranda
    warnings and after Martin waived his rights.
    {¶ 99} In any case, Boldin’s trial testimony on this matter did not prejudice
    Martin. At trial, it was Martin’s counsel who brought up Martin’s statements about
    his mother’s homicide during Boldin’s cross-examination. On redirect, Boldin
    24
    January Term, 2017
    testified: “[H]e provided me with some very basic information, and I talked to him
    about it because I do work in Cleveland and he said it occurred in Cleveland.”
    Neither side introduced anything further about this subject.
    {¶ 100} Martin correctly argues that the state has the burden of proving a
    knowing, voluntary, and intelligent waiver of his Miranda rights. See State v.
    Barker, 
    149 Ohio St. 3d 1
    , 2016-Ohio-2708, 
    73 N.E.3d 365
    , ¶ 30. He contends that
    the state failed to show a valid Miranda waiver, emphasizing that he executed no
    written waiver until arriving at the Warren police station.
    {¶ 101} But a Miranda waiver need not be in writing to be valid. North
    Carolina v. Butler, 
    441 U.S. 369
    , 373, 
    99 S. Ct. 1755
    , 
    60 L. Ed. 2d 286
    (1979). Nor
    is “an explicit statement of waiver” necessary. 
    Id. at 375-376.
    “Where the
    prosecution shows that a Miranda warning was given and that it was understood by
    the accused, an accused’s uncoerced statement establishes an implied waiver of the
    right to remain silent.” Berghuis v. Thompkins, 
    560 U.S. 370
    , 384, 
    130 S. Ct. 2250
    ,
    
    176 L. Ed. 2d 1098
    (2010).
    {¶ 102} The state made such a showing here. When Boldin administered
    the Miranda warnings, Martin said, “I’ve been through this before. I understand
    them.” The record shows that Martin’s subsequent statements were uncoerced—in
    fact, Martin volunteered most of them. Under these circumstances, Martin validly
    waived his Miranda rights. The trial court’s failure to suppress Martin’s subsequent
    statements to the marshals was not erroneous.
    3. Interrogation at Police Station
    {¶ 103} On arriving at the Warren police station, the marshals turned Martin
    over to Detective Mackey, who read Martin the Miranda warnings.              Martin
    executed a written waiver of his Fifth Amendment rights. Mackey then proceeded
    to interrogate Martin. During this interrogation, Martin confessed to shooting Cole
    and Putnam.
    25
    SUPREME COURT OF OHIO
    {¶ 104} Martin points out that he had already made unwarned statements to
    Boldin and Murphy before confessing to Mackey. Citing State v. Farris, 109 Ohio
    St.3d 519, 2006-Ohio-3255, 
    849 N.E.2d 985
    , he argues that “statements made after
    Miranda warnings were given which merely confirmed pre-Miranda statements
    [are] inadmissible.”
    {¶ 105} But Farris is inapplicable. The law-enforcement officer in Farris
    detained and questioned the suspect, and obtained an incriminating reply, before
    administering Miranda warnings and continuing the interrogation. Farris at ¶ 3-4.
    We characterized this as a “question-first scenario,” 
    id. at ¶
    19, like the
    interrogation in Missouri v. Seibert, 
    542 U.S. 600
    , 
    124 S. Ct. 2601
    , 
    159 L. Ed. 2d 643
    (2004), in which five justices agreed that the postwarning statements were
    inadmissible, see 
    id. at 617
    (plurality opinion); 
    id. at 618
    (Kennedy, J., concurring).
    {¶ 106} In contrast, Boldin and Murphy never interrogated Martin before
    administering Miranda warnings; they just listened to his unsolicited statements.
    Only after administering Miranda warnings did Boldin ask Martin any questions.
    This was not the “question-first scenario” of Farris; Martin was never subjected to
    custodial interrogation without Miranda warnings. The marshals “complied fully
    with the relevant constitutional requirements,” State v. Hale, 
    119 Ohio St. 3d 118
    ,
    2008-Ohio-3426, 
    892 N.E.2d 864
    , ¶ 34. As a result, Martin’s self-incrimination to
    the marshals does not affect the admissibility of his later stationhouse confession.
    {¶ 107} The trial court did not err by denying the motion to suppress
    Martin’s statements. We overrule Martin’s tenth proposition of law.
    IV. SUFFICIENCY OF EVIDENCE ON TAMPERING CHARGE
    {¶ 108} Martin was convicted of tampering with evidence, R.C.
    2921.12(A)(1), based on his burning his clothing after the shootings. Martin never
    explained why he did this; when Detective Mackey asked him, he gave an
    unintelligible response. In his eighth proposition of law, Martin contends that the
    evidence was legally insufficient to convict him of tampering.
    26
    January Term, 2017
    {¶ 109} In reviewing the sufficiency of the evidence to support a criminal
    conviction, we must determine “whether, after viewing the evidence in the light
    most favorable to the prosecution, any rational trier of fact could have found the
    essential elements of the crime beyond a reasonable doubt.” (Emphasis sic.)
    Jackson v. Virginia, 
    443 U.S. 307
    , 319, 
    99 S. Ct. 2781
    , 
    61 L. Ed. 2d 560
    (1979).
    A. Elements of Tampering with Evidence
    {¶ 110} Tampering with evidence is defined as follows:
    No person, knowing that an official proceeding or
    investigation is in progress, or is about to be or likely to be instituted,
    shall * * * [a]lter, destroy, conceal, or remove any record, document,
    or thing, with purpose to impair its value or availability as evidence
    in such proceeding or investigation * * *.
    R.C. 2921.12(A)(1). The likelihood of an investigation is measured at the time of
    the alleged tampering. State v. Straley, 
    139 Ohio St. 3d 339
    , 2014-Ohio-2139, 
    11 N.E.3d 1175
    , ¶ 19; State v. Barry, 
    145 Ohio St. 3d 354
    , 2015-Ohio-5449, 
    49 N.E.3d 1248
    , ¶ 21.
    B. Relevance of Destroyed Evidence
    {¶ 111} We have held that “the evidence tampered with must have some
    relevance to an ongoing or likely investigation to support a tampering charge.”
    Straley at ¶ 16. Martin contends that the state failed to prove that the clothing he
    burned was relevant to the murder investigation.
    {¶ 112} However, neither Straley nor R.C. 2921.12(A)(1) states that
    circumstantial evidence is insufficient to prove an item relevant to an investigation.
    “Circumstantial evidence and direct evidence inherently possess the same probative
    value * * *.” State v. Jenks, 
    61 Ohio St. 3d 259
    , 
    574 N.E.2d 492
    (1991), paragraph
    one of the syllabus.
    27
    SUPREME COURT OF OHIO
    {¶ 113} The state points out that shortly before burning his clothes, Martin
    had shot two people at close range. From this, the state cogently argues, a jury
    could reasonably infer that Martin burned his clothes because he knew that his
    clothing contained some evidence of his crimes, such as gunshot residue or a
    victim’s blood. Consistently with this inference, Martin went home and took a
    shower after burning the clothes.
    {¶ 114} Moreover, after discussing the shootings with the marshals, Martin
    volunteered that he had burned his clothes and guided them to the pile of burned
    material. Evidently, Martin himself thought that his act of burning the clothes was
    connected to the shootings. From this evidence, the jury could reasonably infer that
    Martin destroyed the clothes because they were relevant to the shootings.
    C. Knowledge of Likely Investigation
    {¶ 115} Martin also argues that the state did not prove that when he burned
    the clothing, he knew “that an official proceeding or investigation [was] in progress,
    or [was] about to be or likely to be instituted,” R.C. 2921.12(A).
    {¶ 116} As a matter of common sense, we can infer that a person who had
    shot two people and left them for dead in a residential neighborhood would know
    that an investigation was likely. Nevertheless, we recognize that “Ohio law does
    not impute constructive knowledge of an impending investigation based solely on
    the commission of an offense.” Barry, 
    145 Ohio St. 3d 354
    , 2015-Ohio-5449, 
    49 N.E.3d 1248
    , at ¶ 2.
    {¶ 117} We find Barry distinguishable. The underlying offense in Barry
    was heroin possession, and the tampering alleged in that case was the defendant’s
    concealment of the heroin in a body cavity. But when the defendant concealed the
    heroin, she had no reason to believe that the police would investigate her, for “only
    her coconspirators were present * * * and nothing in the record shows that she
    thought it likely that she would be stopped by law enforcement.” 
    Id. at ¶
    27. On
    those facts, the issue before us was “whether knowledge that an official proceeding
    28
    January Term, 2017
    or investigation is pending or likely to be instituted can be imputed to one who
    commits a crime, regardless of whether that crime is likely to be reported to law
    enforcement.” 
    Id. at ¶
    17.
    {¶ 118} But Barry does not foreclose the possibility that knowledge of a
    likely investigation may be inferred when the defendant commits a crime that is
    likely to be reported. Here, the crime was not a possessory offense; it was homicide.
    Homicides are highly likely to be discovered and investigated. Certainly, a jury
    may reasonably believe that a murderer knows this.
    {¶ 119} We conclude that the evidence in this case supports the jury’s
    finding, beyond a reasonable doubt, that when Martin burned the clothes he had
    worn during the shootings, he knew that “an official * * * investigation [was] * * *
    about to be or likely to be instituted, R.C. 2921.12(A).” We overrule Martin’s
    eighth proposition of law.
    V. SENTENCING ISSUES
    {¶ 120} In his third and fourth propositions of law, Martin argues that the
    circumstances of the murder were improperly used against him in the penalty phase.
    He argues that the trial court erroneously admitted guilt-phase evidence in the
    penalty phase, that the penalty-phase instructions failed to make clear what guilt-
    phase evidence the jury could properly consider, that the prosecution improperly
    cited the circumstances of the murder in its closing argument, and that the trial court
    improperly considered the nature and circumstances of the offense in its sentencing
    opinion. We consider each claim in turn.
    A. Admission of Guilt-Phase Evidence in Penalty Phase
    {¶ 121} In his third proposition of law, Martin complains that the state was
    “permitted to proffer all evidence from the trial phase at the sentencing phase” and
    that this allowed the jury to consider evidence relevant to neither the aggravating
    circumstances nor the mitigating factors.
    29
    SUPREME COURT OF OHIO
    {¶ 122} In the penalty phase, the state offered into evidence the following
    exhibits that had been admitted during the guilt phase: Martin’s video-recorded
    confession; his gun, its magazine, and the rounds test-fired from it by BCI; two
    shell casings found at the crime scene; the bullet removed from Cole’s head during
    the autopsy; the bullet fragment extracted from Putnam’s neck; the cords used to
    bind Putnam and Cole; crime-scene photographs depicting Cole’s body, a shell
    casing on the bed, and the cord used to bind Cole’s hands; Cole’s death certificate;
    and Putnam’s medical records. The trial court overruled a defense objection and
    admitted the exhibits.
    {¶ 123} The gun, its ammunition, and the cords used to bind the victims
    were instrumentalities of the kidnapping and aggravated robbery and were therefore
    relevant to the felony-murder aggravating circumstances of which Martin was
    found guilty. Similarly, the photograph of Cole’s body depicted the bindings on
    his hands and was relevant to his kidnapping.
    {¶ 124} Moreover, each of the admitted exhibits, including the confession,
    shell casings, bullet, bullet fragments, and autopsy and medical records, showed the
    purposeful killing of Cole and the purposeful attempted killing of Putnam. These
    exhibits were therefore directly relevant to the multiple-murder aggravating
    circumstance, which involves the purposeful killing of or attempt to kill one or
    more persons. Hence, the trial court did not err by admitting them in the penalty
    phase. See State v. McKelton, 
    148 Ohio St. 3d 261
    , 2016-Ohio-5735, 
    70 N.E.3d 508
    , ¶ 280 (in penalty phase, prosecutor may introduce any evidence raised at trial
    that is relevant to the aggravating circumstances).
    B. Penalty-Phase Instructions
    {¶ 125} Also in his third proposition of law, Martin complains that the trial
    court’s penalty-phase instructions did not clearly identify what guilt-phase
    evidence the jury could consider. But Martin neither objected to the penalty-phase
    instructions nor submitted a proposed instruction of his own. Therefore, he has
    30
    January Term, 2017
    waived any error with respect to the instructions and can prevail only by
    demonstrating plain error. See State v. Bethel, 
    110 Ohio St. 3d 416
    , 2006-Ohio-
    4853, 
    854 N.E.2d 150
    , ¶ 153.
    {¶ 126} Martin claims that “[t]he jury was never instructed to disregard the
    evidence and testimony that did not bear upon the aggravating circumstances.”
    This claim is factually wrong. The jury was instructed “to consider only the
    evidence admitted in the trial phase that is relevant to the aggravating circumstances
    of which David Martin has been found guilty and to any of the mitigating factors.”
    (Emphasis added.)
    {¶ 127} Martin also asserts that the jury was never told specifically what
    guilt-phase testimony had been admitted in the penalty phase. Compare State v.
    Getsy, 
    84 Ohio St. 3d 180
    , 201, 
    702 N.E.2d 866
    (1998) (trial court, not jury, is to
    determine what evidence is relevant in penalty phase). However, the trial court’s
    penalty-phase instructions did not constitute plain error, because we have
    previously approved similar instructions.
    {¶ 128} The trial court instructed the jury:
    Some of the evidence and testimony that you considered in
    the trial phase of this case may not be considered in the sentencing
    phase. For purposes of this proceeding, you are to consider only the
    evidence admitted in the trial phase that is relevant to the
    aggravating circumstances of which David Martin has been found
    guilty and to any of the mitigating factors.
    The court then connected this instruction to the aggravating circumstances in the
    case:
    31
    SUPREME COURT OF OHIO
    You will consider the evidence and testimony relating to whether
    David Martin committed the aggravated murder of Jeremy Cole as
    part of a course of conduct involving * * * the purposeful killing or
    attempt to kill two or more persons * * *, that David Martin
    committed the aggravated murder * * * while he was committing or
    fleeing immediately after committing kidnapping * * *, that David
    Martin committed the aggravated murder * * * while he was
    committing or fleeing immediately after committing aggravated
    robbery * * *.
    The court concluded: “You will also consider all of the evidence admitted during
    the sentencing phase, together with David Martin’s own statement.”
    {¶ 129} We have held a similar instruction proper, reasoning that it “limited
    the jury’s consideration of the guilt-phase evidence and testimony to the * * *
    aggravating circumstances and the mitigating factors.” State v. Lang, 129 Ohio
    St.3d 512, 2011-Ohio-4215, 
    954 N.E.2d 596
    , ¶ 251. Moreover, in this case, the
    trial court specifically identified the aggravating circumstances and instructed:
    “The aggravated murders themselves are not aggravating circumstances.” See also
    State v. Cunningham, 
    105 Ohio St. 3d 197
    , 2004-Ohio-7007, 
    824 N.E.2d 504
    , ¶ 70.
    Finally, the trial court “focused the jury’s attention” by admitting only a limited
    number of guilt-phase exhibits in the penalty phase, State v. Coley, 
    93 Ohio St. 3d 253
    , 270, 
    754 N.E.2d 1129
    (2001).
    {¶ 130} To qualify as plain error, an error must be obvious. E.g., State v.
    Hancock, 
    108 Ohio St. 3d 57
    , 2006-Ohio-160, 
    840 N.E.2d 1032
    , ¶ 60. Martin has
    not identified any obvious error in the penalty-phase instructions, which appear on
    their face to comport with Lang, Cunningham, and Coley. Accordingly, Martin’s
    failure to object at trial forfeits any issue with respect to the instructions.
    32
    January Term, 2017
    C. State’s Closing Argument
    {¶ 131} Finally, Martin contends that the state made two improper
    statements during closing arguments in the penalty phase. First, the prosecutor
    argued: “Nineteen days after committing all three of these aggravating
    circumstances, this defendant said he could accept the needle.” However, Martin
    did not object to this argument, so he has forfeited this claim absent a showing of
    plain error. See, e.g., State v. Thomas, 
    97 Ohio St. 3d 309
    , 2002-Ohio-6624, 
    779 N.E.2d 1017
    , ¶ 60.
    {¶ 132} It was not plain error for the prosecution to cite Martin’s statement
    that he could “accept the needle.” The statement was relevant to refute the defense
    presentation of mitigating circumstances.       In his unsworn statement, Martin
    apologized for his crimes and said that he would “take it back” if he could. The
    state could legitimately remind the jury that Martin displayed a sharply different
    attitude at the time of his arrest.
    {¶ 133} The prosecutor also reminded the jury twice that Martin shot Cole
    from a distance of three to eight inches. The defense did not object to the first
    statement but did object to the second, so we will consider the merits of Martin’s
    claim that this portion of the state’s closing argument was improper. However, as
    we noted above, shooting the victim at close range shows the purposeful nature of
    the killing and is relevant to the course-of-conduct aggravating circumstance. This
    observation was not error.
    {¶ 134} We overrule Martin’s third proposition of law.
    D. Trial Court’s Sentencing Opinion
    {¶ 135} In his fourth proposition of law, Martin argues that the trial court’s
    sentencing opinion shows that the court “improperly weighed the facts of the
    aggravated murder.” (Emphasis sic.) We disagree.
    {¶ 136} First, he contends that the trial court improperly referred to “the
    circumstances regarding the robbery and kidnapping of Putnam,” which he
    33
    SUPREME COURT OF OHIO
    contends are “separate offenses” from the aggravated murder, “involving a separate
    victim.” But it was not improper for the trial court to discuss the robbery and
    kidnapping of Putnam.        These crimes related to the two felony-murder
    specifications of which Martin was convicted; the specifications arose from his
    commission of aggravated murder while committing kidnapping and aggravated
    robbery.
    {¶ 137} Second, Martin complains that the sentencing opinion noted the
    “cold and calculated manner” in which Martin shot Cole, which he contends is a
    nonstatutory aggravating circumstance. However, when a trial court “correctly
    identifies the statutory aggravating circumstances pleaded and proven at trial, this
    court will infer that the trial court ‘understood the difference between statutory
    aggravating circumstances and facts describing the nature and circumstances of the
    offense.’ ” State v. Wiles, 
    59 Ohio St. 3d 71
    , 90, 
    571 N.E.2d 97
    (1991), quoting
    State v. Sowell, 
    39 Ohio St. 3d 322
    , 328, 
    530 N.E.2d 1294
    (1988).
    {¶ 138} Here, the sentencing opinion correctly identifies the aggravating
    circumstances. Therefore, we presume that the trial court understood that the cold,
    calculated nature of the murder was not an aggravating circumstance. See State v.
    Clemons, 
    82 Ohio St. 3d 438
    , 447, 
    696 N.E.2d 1009
    (1998) (applying presumption
    where sentencing opinion noted defendant’s “ ‘calculated, cruel, willful, and cold-
    blooded disregard for human life’ ”); State v. Moore, 
    81 Ohio St. 3d 22
    , 38, 
    689 N.E.2d 1
    (1998).
    {¶ 139} And while the cold and calculated nature of the murder is not an
    aggravating circumstance, the trial court could properly consider it. Since “the
    murder is part of the felony-murder aggravating circumstance * * *, the nature of
    the murder goes to the nature and circumstances of the [R.C. 2929.04](A)(7)
    aggravating circumstance.” State v. Campbell, 
    90 Ohio St. 3d 320
    , 345, 
    738 N.E.2d 1178
    (2000). A court may also cite such facts “to support its finding that the
    aggravating circumstances outweighed the mitigating factors.” Moore at 38, citing
    34
    January Term, 2017
    State v. Stumpf, 
    32 Ohio St. 3d 95
    , 
    512 N.E.2d 598
    (1987), paragraph one of the
    syllabus. Accordingly, we overrule Martin’s fourth proposition of law.
    VI. SETTLED ISSUES
    {¶ 140} Martin’s fifth, sixth, and seventh propositions of law raise several
    oft-rejected arguments, which we treat summarily. See State v. Poindexter, 36 Ohio
    St.3d 1, 
    520 N.E.2d 568
    (1988), syllabus; State v. Spisak, 
    36 Ohio St. 3d 80
    , 81, 
    521 N.E.2d 800
    (1988). We overrule Martin’s fifth proposition of law on the authority
    of State v. Belton, 
    149 Ohio St. 3d 1
    65, 2016-Ohio-1581, 
    74 N.E.3d 319
    , ¶ 88. We
    overrule his sixth proposition of law on the authority of State v. Rogers, 17 Ohio
    St.3d 174, 
    478 N.E.2d 984
    (1985), paragraph three of the syllabus, vacated on other
    grounds, Rogers v. Ohio, 
    474 U.S. 1002
    , 
    106 S. Ct. 518
    , 
    88 L. Ed. 2d 452
    (1985);
    and State v. Davis, 
    116 Ohio St. 3d 404
    , 2008-Ohio-2, 
    880 N.E.2d 31
    , ¶ 55. And
    we overrule his seventh proposition on the authority of State v. Kirkland, 140 Ohio
    St.3d 73, 2014-Ohio-1966, 
    15 N.E.3d 818
    , ¶ 106, 107, 109, 111, 113, 117-118, 120;
    State v. Ferguson, 
    108 Ohio St. 3d 451
    , 2006-Ohio-1502, 
    844 N.E.2d 806
    , ¶ 88-90,
    93; State v. Adams, 
    103 Ohio St. 3d 508
    , 2004-Ohio-5845, 
    817 N.E.2d 29
    , ¶ 131;
    State v. Scott, 
    26 Ohio St. 3d 92
    , 109, 
    497 N.E.2d 55
    (1986); State v. Buell, 22 Ohio
    St.3d 124, 136-141, 
    489 N.E.2d 795
    (1986); State v. Mapes, 
    19 Ohio St. 3d 108
    ,
    116-117, 
    484 N.E.2d 140
    (1985); and State v. Jenkins, 
    15 Ohio St. 3d 164
    , 172-174,
    178-179, 
    473 N.E.2d 264
    (1984) and fn. 11.
    VII. INDEPENDENT SENTENCE EVALUATION
    {¶ 141} R.C. 2929.05(A) requires that we independently review Martin’s
    death sentence. In conducting this review, we must determine whether the evidence
    supports the jury’s finding of aggravating circumstances, whether the aggravating
    circumstances outweigh the mitigating factors, and whether the death sentence is
    proportionate to those affirmed in similar cases.
    35
    SUPREME COURT OF OHIO
    A. Aggravating Circumstances
    {¶ 142} The jury found three aggravating circumstances: one under R.C.
    2929.04(A)(5) (the offense was part of a course of conduct involving the purposeful
    killing of or attempt to kill two or more persons) and two under R.C. 2929.04(A)(7)
    (Martin committed the offense while committing aggravated robbery and
    kidnapping). The record supports these findings.
    {¶ 143} As to the course-of-conduct specification, there is sufficient
    evidence to support the finding that Martin purposefully killed Cole and
    purposefully attempted to kill Putnam. He shot Cole in the head and attempted to
    shoot Putnam in the head. He shot both victims at close range while they were
    bound and unable to resist. And the two shootings formed a single course of
    conduct: both were committed with the same gun during the same robbery in the
    same house. See generally State v. Sapp, 
    105 Ohio St. 3d 104
    , 2004-Ohio-7008,
    
    822 N.E.2d 1239
    , ¶ 52.
    {¶ 144} As to the robbery-murder specification, Putnam testified that after
    forcing Putnam at gunpoint to tie her own and Cole’s hands, Martin removed
    approximately $100 from her purse, took her and Cole’s cell phones, and stole some
    marijuana. Then, he shot her and Cole. This testimony is sufficient to prove
    aggravated robbery under R.C. 2911.01(A)(1) (displaying or using deadly weapon
    in committing theft offense) and (A)(3) (inflicting serious physical harm in
    committing theft offense).
    {¶ 145} As to the kidnapping-murder specification, Putnam testified that
    during the robbery, Martin forced her to tie Cole’s hands with a cord, then to tie her
    own, then to retie Cole to make his bonds more secure. Later, the evidence shows,
    Martin retied both victims himself. This is more than sufficient to prove kidnapping
    under R.C. 2905.01(A)(2) (restraining another’s liberty to facilitate commission of
    felony).
    36
    January Term, 2017
    B. Mitigating Factors
    1. Statutory Mitigating Factors, R.C. 2929.04(B)(1) through (6)
    {¶ 146} The mitigating factors set forth in R.C. 2929.04(B)(1) through (6)
    are inapplicable. Youth is not a factor: Martin was 28 at the time of the murder.
    See State v. Frazier, 
    61 Ohio St. 3d 247
    , 258, 
    574 N.E.2d 483
    (1991). Degree of
    participation is not a factor: he was the principal offender. He does not claim to
    lack a substantial criminal or juvenile record. There was no evidence that the victim
    induced or facilitated the murder, no evidence of Martin’s being under duress,
    coercion or provocation, and no evidence of his having any mental disease or
    defect. (Although Martin was placed in classes for the learning-disabled at age
    eight, his school determined in 1997 that his bad behavior and poor attendance
    caused his academic problems.)
    2. Nature and Circumstances of the Offense
    {¶ 147} The nature and circumstances of the aggravated murder offer
    nothing in mitigation.
    3. Offender’s History, Character, and Background
    {¶ 148} At the mitigation hearing, Martin made an unsworn statement and
    called three witnesses: Alegra Martin, Lucretia Norton, and Landon Nicholson.
    Alegra Martin and Norton, Martin’s cousins, remembered him as a child and
    testified briefly about his family, but neither witness had seen much of him in recent
    years. Nicholson testified about Martin’s youth from approximately 1996 to 2000.
    Martin also introduced a 586-page Cuyahoga County Division of Children and
    Family Services (“CFS”) file on his family covering the period 1986 through 1998.
    {¶ 149} Martin was born in 1984 and grew up in Cleveland. He was the
    youngest of the three children of Benjamin Martin Sr. and Hilda Martin.
    {¶ 150} Hilda Martin was a prostitute, and both parents had drug habits
    (although the record is not clear as to the severity of Benjamin’s habit). Benjamin
    and Hilda were divorced, but Benjamin subsequently moved back into the
    37
    SUPREME COURT OF OHIO
    household because he was concerned about Hilda’s neglect of the children.
    Documents in the CFS file describe Benjamin as responsible and well organized
    and state that he had a good relationship with his children.
    {¶ 151} The Martin family was referred to CFS for the first time in January
    1986. Benjamin reported that Hilda frequently left the children alone. The assigned
    social worker concluded that “the referral was the result of a husband-wife dispute”
    and that “there appears to be no neglect of the children.”
    {¶ 152} A year later, the Martins were again referred to CFS. It was
    reported that Hilda had left the children (the oldest of whom was then seven) in the
    care of a friend, who had left them alone. The friend claimed that the Martins left
    their children alone “all the time,” but Hilda denied that and the children also
    “denied being left alone for extended periods.” The social worker found the Martin
    children “healthy, adequately groomed and dressed.” She described the home as
    “generally clean and organized” with working utilities and adequate food.
    Nevertheless, the social worker found the children to be at risk due to “[l]ack of
    adequate supervision,” and in February, CFS determined that the neglect allegation
    was substantiated.
    {¶ 153} In June 1987, Hilda passed out on a downtown Cleveland street
    corner, in the presence of Martin (then two years old) and his brother. EMS
    personnel hospitalized her for intoxication and drug abuse. She was “incoherent”
    and had a .16 blood-alcohol content. A friend stated that Hilda abused alcohol and
    drugs daily. But a March 1988 “case plan” states: “The children are receiving good
    care in their own home” and “[p]rotective services have improved the care and
    supervision that these children are receiving.”
    {¶ 154} In 1989, when Martin was four years old, Hilda was murdered. The
    CFS file shows that Martin and his siblings received no counseling to help them
    deal with their mother’s death, at least up to October 1997.
    38
    January Term, 2017
    {¶ 155} After the murder, Benjamin and his children moved to the Morris
    Black housing project. Witnesses described Morris Black as a rough and dangerous
    area on Cleveland’s east side. According to Nicholson, fights and shootings were
    everyday occurrences during the “cocaine era” that had begun in the mid-1980s.
    {¶ 156} In 1992, CFS closed the Martin case because “the neglect
    allegations were against the mother [and] not the father,” there had been no new
    referrals in two years, and the family’s whereabouts were unknown.
    {¶ 157} From 1993 to 1997, the Martin household was referred to CFS five
    times for alleged child abuse and/or neglect. However, after investigating each
    allegation, CFS found no evidence of abuse or neglect.
    {¶ 158} Yet the CFS file suggests that Benjamin had considerable difficulty
    raising his children. A 1995 report states that Benjamin had “followed thru on
    recommendations” and was “well bonded” with his children yet Martin’s siblings
    were “beginning to exhibit unruly behaviors.” A report later in 1995 describes
    Martin himself as “unruly [and] delinquent.” The CFS file speaks of “gang
    violence,” “peer pressure,” and a community with “areas * * * undesirable for [the]
    youth’s well being.” Martin was frequently suspended from school, often without
    telling Benjamin. He was expelled in March 1997 and not readmitted until October.
    {¶ 159} In 1997, Martin’s brother was stabbed. One month later, a CFS
    social worker noted that Benjamin appeared “frustrated and helpless.” A few
    months later, another report described him as “overwhelmed” and stated that he
    “has given up.” Benjamin was dealing with physical- and mental-health issues
    around the same time: he had been diagnosed as HIV-positive, was frequently
    hospitalized, and had made three suicide attempts.
    {¶ 160} In October 1997, Martin, then 13, was charged with assault and
    marijuana possession.    His father failed to attend a court hearing with him,
    prompting the judge to call for another investigation. The social worker initially
    determined   that   neglect   was   “[i]ndicated”    and   that   Martin   was   at
    39
    SUPREME COURT OF OHIO
    “[m]oderate/[h]igh risk.” However, in June 1998, CFS determined that there was
    no abuse or neglect “at this time.”
    {¶ 161} In the Morris Black project, Martin was exposed to bad influences.
    Landon Nicholson testified that he first met Martin in 1996, when Martin was 11
    or 12, and knew him until Martin was incarcerated (the record does not show why)
    in 2000. Nicholson testified that Martin “belonged to the streets”; he often saw
    Martin without supervision, “roaming through the projects” at all hours. According
    to Nicholson, Martin’s father was “high all the time,” spent his time in crack houses,
    and exerted no positive influence.
    {¶ 162} Nicholson recalled that Donald Ray, a local gangster who owned a
    boxing gym—and who was later convicted of murder—taught Martin and other
    neighborhood children to box. While Nicholson claimed to have “looked out for
    [Martin] and his brother,” he conceded that neither he nor Ray were “role models.”
    He and Ray openly engaged in wrongful activities, and “it wasn’t like [the local
    children] couldn’t see what we was doing.”
    4. Remorse and Cooperation with Law Enforcement
    {¶ 163} After his arrest, Martin accepted responsibility for the shootings
    and cooperated with law enforcement. He spoke freely to Deputy Marshals Boldin
    and Murphy, voluntarily led them to where he had burned his clothing, and
    confessed to Detective Mackey.
    {¶ 164} Martin also expressed remorse in the brief unsworn statement that
    he read in the penalty phase. He apologized to Cole’s family and to Putnam, and
    he asked for forgiveness. He said that “[d]rugs was a big part of what led to the
    incident.” He urged others to “learn from the wrong that I have done and stop the
    violence and drugs because it’s hurtin’ more than it’s helping.”
    C. Sentence Evaluation
    {¶ 165} Martin’s history, character, and background are not devoid of
    mitigation. While he was not abused, his upbringing was deficient in important
    40
    January Term, 2017
    ways. The CFS file suggests that his father was a caring parent who tried to provide
    love and discipline yet was unable to teach his children to behave. The file indicates
    that at some point in Martin’s teenage years, his father virtually gave up and
    consigned him to the influence of the streets. Moreover, Martin lost his mother at
    an early age and received little or no help dealing with that issue. Even so, we have
    “seldom accorded strong weight to a defendant’s childhood,” State v. Murphy, 
    91 Ohio St. 3d 516
    , 547, 
    747 N.E.2d 765
    (2001), even in cases in which the defendant
    had suffered severe abuse, see, e.g., State v. Holloway, 
    38 Ohio St. 3d 239
    , 245-247,
    
    527 N.E.2d 831
    (1988); State v. Cooey, 
    46 Ohio St. 3d 20
    , 41, 
    544 N.E.2d 895
    (1989); State v. Murphy, 
    65 Ohio St. 3d 554
    , 585-586, 
    605 N.E.2d 884
    (1992).
    {¶ 166} The tepid expression of remorse in Martin’s unsworn statement
    deserves little weight. On the other hand, his cooperation with law enforcement is
    entitled to some weight. See, e.g., State v. Elmore, 
    111 Ohio St. 3d 515
    , 2006-Ohio-
    6207, 
    857 N.E.2d 547
    , ¶ 166; Bethel, 
    110 Ohio St. 3d 416
    , 2006-Ohio-4853, 
    854 N.E.2d 150
    , at ¶ 191.
    {¶ 167} In assessing that weight, however, we are constrained to observe
    that Martin was not completely honest with Detective Mackey. He denied that he
    intended to kill Putnam, despite having fired at her head from close range. He also
    denied personally tying up either victim, but Putnam testified that he tied her hands
    and the evidence shows that he also tied Cole’s. Putnam tied Cole’s hands with a
    phone cord, but when police found Cole’s body, the hands were bound with the
    cord from Putnam’s alarm clock. It follows that Martin must have retied them. His
    attempts to mislead the police and minimize his guilt reduce the weight that his
    voluntary cooperation would otherwise merit.
    {¶ 168} At best, Martin’s mitigating factors deserve modest weight. We
    find that the three aggravating circumstances, especially the course-of-conduct
    circumstance, outweigh the mitigating factors beyond a reasonable doubt.
    41
    SUPREME COURT OF OHIO
    {¶ 169} Finally, we find that Martin’s death sentence is not disproportionate
    to the penalty imposed in similar cases. See R.C. 2929.05(A). We have approved
    death sentences in cases combining a robbery-murder specification with a course-
    of-conduct specification involving one murder and one attempted murder. State v.
    Perez, 
    124 Ohio St. 3d 122
    , 2009-Ohio-6179, 
    920 N.E.2d 104
    , ¶ 253-254; State v.
    Dennis, 
    79 Ohio St. 3d 421
    , 439, 
    683 N.E.2d 1096
    (1997); see also State v. Beuke,
    
    38 Ohio St. 3d 29
    , 45, 
    526 N.E.2d 274
    (1988) (robbery-murder and course of
    conduct consisting of one murder and two attempted murders). We have approved
    a death sentence in a case with the sole death-penalty specification of course of
    conduct involving one murder and one attempted murder. 
    Sowell, 39 Ohio St. 3d at 337
    , 
    530 N.E.2d 1294
    . We have also approved death sentences in cases involving
    only a robbery-murder specification, e.g., Hale, 
    119 Ohio St. 3d 118
    , 2008-Ohio-
    3426, 
    892 N.E.2d 864
    , at ¶ 278; State v. Lindsey, 
    87 Ohio St. 3d 479
    , 492, 
    721 N.E.2d 995
    (2000); State v. Post, 
    32 Ohio St. 3d 380
    , 395, 
    513 N.E.2d 754
    (1987)
    and fn. 10, and in cases involving only a kidnapping-murder specification, e.g.,
    State v. Hartman, 
    93 Ohio St. 3d 274
    , 305-306, 
    754 N.E.2d 1150
    (2001); State v.
    Ballew, 
    76 Ohio St. 3d 244
    , 257-258, 
    667 N.E.2d 369
    (1996); State v. Joseph, 
    73 Ohio St. 3d 450
    , 462-463, 
    653 N.E.2d 285
    (1995).
    VIII. CONCLUSION
    {¶ 170} We affirm the judgments of conviction and the sentence of death.
    Judgment affirmed.
    O’CONNOR, C.J., and O’DONNELL, KENNEDY, FISCHER, and DEWINE, JJ.,
    concur.
    O’NEILL, J., concurs in part and dissents in part, for the reasons set forth in
    his dissenting opinion in State v. Wogenstahl, 
    134 Ohio St. 3d 1437
    , 2013-Ohio-
    164, 
    981 N.E.3d 900
    .
    _________________
    42
    January Term, 2017
    Dennis Watkins, Trumbull County Prosecuting Attorney, and Christopher
    D. Becker and LuWayne Annos, Assistant Prosecuting Attorneys, for appellee.
    John B. Juhasz; and Maro & Schoenike Co. and Lynn A. Maro, for
    appellant.
    _________________
    43
    

Document Info

Docket Number: 2014-1922

Citation Numbers: 2017 Ohio 7556

Judges: French, J.

Filed Date: 9/13/2017

Precedential Status: Precedential

Modified Date: 9/13/2017

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