State v. Froman , 2022 Ohio 2726 ( 2022 )

[Cite as State v. Froman, 2022-Ohio-2726.]
IN THE COURT OF APPEALS
TWELFTH APPELLATE DISTRICT OF OHIO
WARREN COUNTY
STATE OF OHIO, :
Appellee, : CASE NO. CA2020-12-080
: OPINION
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:
TERRY LEE FROMAN, :
Appellant. :
CRIMINAL APPEAL FROM WARREN COUNTY COURT OF COMMON PLEAS
Case No. 14CR30398
David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A. Brandt, Assistant
Prosecuting Attorney, for appellee.
Jessica Houston, Kimberlyn Seccuro, and Adam Vincent, Office of the Ohio Public
Defender, for appellant.
BYRNE, J.
{¶1} The Warren County Court of Common Pleas convicted and sentenced Terry
Froman to death for murdering his estranged former girlfriend, Kimberly Thomas. Froman
appealed to the Ohio Supreme Court, which affirmed Froman's conviction and sentence.
Froman separately petitioned for postconviction relief in the Warren County Court of
Common Pleas. That court dismissed the postconviction relief petition ("PCR petition")
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without a hearing and granted the state's motion to dismiss and/or for summary judgment.
Froman now appeals from that decision. We affirm the trial court's decision for the reasons
below.
I. Procedural and Factual Background
{¶2} In 2014, a Warren County grand jury indicted Froman on two counts of
aggravated murder, both with death penalty specifications, and two counts of kidnapping.
The indictment stemmed from allegations that Froman kidnapped Kimberly Thomas
("Thomas") from her home in western Kentucky. He then transported Thomas by vehicle
to Ohio and shot and killed her after troopers pulled him over in Warren County on I-75.
{¶3} The matter proceeded to a trial. The facts underlying the offenses are not at
issue regarding most grounds for relief raised in Froman's PCR petition, and so we will only
summarize them here. The Ohio Supreme Court's opinion resulting from Froman's direct
appeal contains a more extensive review of the trial evidence. State v. Froman, 162 Ohio
St.3d 435, 2020-Ohio-4523, ¶ 3-26.
{¶4} Froman and Thomas were in a romantic relationship, and Froman lived with
Thomas at her home in Mayfield, Kentucky during the relationship. Thomas ended the
relationship in August 2014 and asked Froman to move out. Froman eventually moved out
but persisted in involving himself in Thomas' life. For example, Froman one day showed
up at Thomas' workplace and entered her office. A supervisor, knowing about their troubled
relationship, told Froman that Thomas had to go to a meeting. Before leaving, Froman told
the supervisor, "Kim has made me lose everything, now I will make her lose everything no
matter the cost." Also, after moving out, Froman twice texted a neighbor to ask if any men
had been at Thomas' house.
{¶5} On the morning of September 12, 2014, the evidence showed that Froman
entered Thomas' home with a gun and forced her out of bed. Thomas' son Eli was in the
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home and came to his mother's aid. Froman shot and killed Eli. Investigators later found
gunshot wounds on Eli's abdomen, right forearm, and the back of his head. Froman forced
Thomas outside and into his vehicle and drove away.
{¶6} Froman stopped at a gas station in the nearby town of Paducah, Kentucky.
While he went inside to pay, video surveillance shows that Thomas, naked, escaped from
Froman's vehicle and began running away. Froman rushed out of the store, grabbed
Thomas by the hair, and forced her into the backseat of his vehicle.
{¶7} Froman then fled, with Thomas still in the vehicle, to Ohio. During the long
drive, he spoke on the phone with his friend, David Clark, multiple times. Clark cooperated
with police in real time, and police recorded some of the phone calls. During these
conversations Froman confessed that he had killed Eli and kidnapped Thomas. Clark later
tried to persuade Froman to let Thomas go, but Froman refused:
[Clark]: Have you thought about letting her go?
[Froman]: Have I thought about it? No, not at all. * * *
It's too late. I mean it ain't too late, but, I just can't,
I can't, I can't. I just got to. No ifs, ands, or buts
about it.
***
I mean, I know you're trying to talk me down, baby
I appreciate it and all. But like I said, I mean it's
just not going to happen. It's just not going to
happen.
[Clark]: There's still good stuff to live for, Fam.1
[Froman]: Man, I already took one life, and I'm about to go
ahead and take two [more].
{¶8} During a later phone call, Froman informed Clark that the police were
following him and that he intended to kill Thomas. He refused Clark's request that he stop:
1. Clark referred to Froman as "Fam" several times during their recorded telephone conversations.
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[Froman]: I'm gonna kill her dude.
[Clark]: Don't do it Fam. Don't do it. * * * [J]ust pull over.
***
[Clark]: Well just, man, just pull over. Don't do nothing.
[Froman]: I can't do it man.
{¶9} The call disconnected. When Clark called Froman again, Froman stated,
"She dead. I shot myself." He added, "I shot myself, and I shot her three times."
{¶10} Police had been tracking Froman by working with his cell phone provider,
which provided police with updates on his location by periodically sending a "ping" to his
cell phone. Around six hours had passed since the abduction began when two Ohio State
Highway Patrol troopers pulled Froman over on I-75 in Warren County, Ohio. The officers
heard gunshots upon exiting their cruisers.
{¶11} A brief time later, two tactical teams approached Froman's vehicle and
apprehended Froman, who was sitting in the driver's seat with a gun in his hand. Froman
had a bullet wound in his left upper chest near his shoulder. First responders transported
Froman to a hospital for treatment.
{¶12} The troopers found Thomas in the back seat of Froman's vehicle, deceased.
She had bullet wounds in the back of her head, her right upper chest, her right breast, and
her right upper abdomen. She had also suffered blunt force trauma to her torso, inner
thighs, and extremities, a laceration on her upper lip, three lacerations on the top of her
head, and abrasions on her forehead and right cheek. She also had a broken jaw and one
of her lower teeth had been knocked out.
{¶13} Authorities tried Froman in Kentucky for killing Eli and in Ohio for killing
Thomas. Ohio bifurcates capital trials into guilt and penalty/mitigation phases. State v.
Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, ¶ 147, citing R.C. 2929.03(D); R.C.
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2929.04(B) and (C). The jury initially determines a defendant's guilt. If the jury convicts the
defendant of aggravated murder and at least one death specification, then the trial proceeds
to the second phase. Otherwise, the second phase never occurs. Id. At the end of the
guilt phase of Froman's trial, the jury found Froman guilty of all the counts and specifications
in the indictment. The state elected to proceed to the penalty phase on the first count of
aggravated murder and its accompanying death-penalty specifications.
{¶14} At the penalty phase trial, the jury heard testimony from Alexis Froman
(Froman's younger daughter) and Dr. Nancy Schmidtgoessling, a clinical psychologist who
interviewed Froman while he was awaiting trial. The jury also heard Froman read an
unsworn statement, in which he apologized and asked the jurors to spare his life for the
sake of Alexis and his mother.
{¶15} Following the penalty phase, the jury recommended a sentence of death and
the trial court subsequently sentenced Froman to death.
{¶16} As mentioned, Froman directly appealed to the Ohio Supreme Court.
Froman, 2020-Ohio-4523. Among other arguments, Froman—who is black, and who the
state accused of murdering Thomas, a white woman—argued that the state denied him a
fair trial due to the seating of racially biased jurors, and that his trial counsel provided
ineffective assistance in failing to question or remove one of those jurors. Id. at ¶ 48. He
also argued that his counsel provided ineffective assistance by failing to call certain
mitigation witnesses. Id. at ¶ 146.
{¶17} As for the allegation of racially biased jurors, the Ohio Supreme Court agreed
with Froman that Juror 49's answers on a jury questionnaire indicated that she held racially
biased views. Id. at ¶ 55. Even so, the Ohio Supreme Court found that the state had not
deprived Froman of a fair trial because the court and counsel questioned Juror 49 on her
views and successfully rehabilitated her. Id. at ¶ 57. Nor had Froman's trial counsel
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provided ineffective assistance in his questioning or failure to question Juror 49 during voir
dire. Id. The supreme court also analyzed allegedly racially biased juror questionnaire
answers given by Jurors 5, 13, and 46. Id. at ¶ 58-61. The supreme court found that those
jurors' questionnaire answers did not indicate racially biased views, and that the record did
not show that they could not be impartial. Id. at ¶ 61.
{¶18} As for Froman's ineffective assistance claim related to mitigation evidence,
the supreme court found that Froman's trial counsel's decision not to call certain mitigation
witnesses was a "tactical choice," and that Froman had not established prejudice because
he did not identify what specific evidence those witnesses would have offered had counsel
called them to testify. Id. at ¶ 151-153.
{¶19} Having found no merit to Froman's arguments and having conducted its own
independent evaluation of Froman's death sentence and the mitigating evidence offered
during the trial's penalty phase, the Ohio Supreme Court affirmed Froman's conviction and
sentence. Id. at ¶ 161-187.
{¶20} In October 2018, Froman petitioned for postconviction relief under R.C.
2953.21. In September 2019, Froman filed an amended petition for postconviction relief
(referred to as the "PCR petition"). In his PCR petition, Froman asserted 47 grounds for
relief ("Grounds"), presenting various arguments alleging that the state denied him his rights
or violated those rights in ways that rendered his conviction void or voidable. Some of those
arguments related to issues that he presented in his direct appeal to the Ohio Supreme
Court. Froman included voluminous new documents with his PCR petition, including, but
not limited to, affidavits and reports of various putative experts opining on juror bias and
other issues, and affidavits of fourteen lay witnesses providing information in support of
mitigation regarding his death penalty sentence.
{¶21} The state filed a motion to dismiss and/or for summary judgment ("state's
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motion to dismiss") in March 2020. In November 2020, the trial court granted the state's
motion. The trial court found that res judicata barred nearly all Froman's grounds for relief.
But the court also substantively addressed all grounds for relief and found none had any
merit. Froman appeals, raising nine assignments of error.2
II. Legal Analysis
A. Standards of Review
{¶22} R.C. 2953.21 authorizes the filing of petitions for postconviction relief. A
postconviction proceeding is a collateral civil attack on a criminal judgment, not an appeal
of a criminal conviction. State v. Dillingham, 12th Dist. Butler Nos. CA2012-02-037 and
CA2012-02-042, 2012-Ohio-5841, ¶ 8. To prevail on a postconviction relief petition, the
petitioner must establish a violation of his constitutional rights that renders the judgment of
conviction void or voidable. R.C. 2953.21. A petition does not provide a petitioner a second
opportunity to litigate his or her conviction, nor is the petitioner automatically entitled to an
evidentiary hearing. State v. Rose, 12th Dist. Butler No. CA2012-03-050, 2012-Ohio-5957,
¶ 16. A trial court properly denies a postconviction relief petition without an evidentiary
hearing if the supporting affidavits, the documentary evidence, the files, and the records of
the case do not demonstrate that the petitioner set forth sufficient operative facts to
establish substantive grounds for relief. State v. Blankenburg, 12th Dist. Butler No.
CA2012-04-088, 2012-Ohio-6175, ¶ 9; R.C. 2953.21.
{¶23} "It is well-established that a trial court may dismiss a postconviction relief
petition on the basis of the doctrine of res judicata." State v. Davis, 12th Dist. Butler No.
CA2012-12-258, 2013-Ohio-3878, ¶ 30. Under res judicata, a final judgment of conviction
bars a convicted defendant who was represented by counsel from raising and litigating in
2. Froman has appealed the dismissal of each ground for relief except for Ground 15, in which he alleged that
his trial counsel were ineffective for failing to adequately prepare Dr. Schmidtgoessling.
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any proceeding except an appeal from judgment, any defense or any claimed lack of due
process that was raised or could have been raised by the defendant at the trial, which
resulted in that judgment or conviction, or on an appeal from that judgment. State v.
Wagers, 12th Dist. Preble No. CA2011-08-007, 2012-Ohio-2258, ¶ 10, citing State v.
Szefcyk, 77 Ohio St.3d 93 (1996), syllabus.
{¶24} The presentation of competent, relevant, and material evidence outside the
trial record may defeat the application of res judicata. State v. Lawson, 103 Ohio App.3d
307, 315 (12th Dist.1995). The petitioner can avoid the bar of res judicata by submitting
evidence outside the record on appeal that demonstrates that the petitioner could not have
raised the claim based on information in the original record. Id.{¶25} However, the evidence submitted with the petition cannot be merely
cumulative of or alternative to evidence presented at trial. State v. Myers, 12th Dist. Warren
No. CA2019-07-074, 2021-Ohio-631, ¶ 17. That is to say, "[r]es judicata bars a petitioner
from 're-packaging' evidence or issues that either were or could have been raised in trial or
on direct appeal." State v. Casey, 12th Dist. Clinton No. CA2017-08-013, 2018-Ohio-2084,
¶ 15.
{¶26} Instead, "'[e]vidence presented outside the record must meet some threshold
standard of cogency * * *.'" State v. Statzer, 12th Dist. Butler No. CA2017-02-022, 2018-
Ohio-363, ¶ 16, quoting Lawson at 315. Otherwise, a petitioner could overcome res judicata
"'by simply attaching as exhibits evidence which is only marginally significant and does not
advance the petitioner's claim beyond mere hypothesis and a desire for further discovery.'"
Lawson at 315, quoting State v. Coleman, 1st Dist. Hamilton No. C-900811, 1993 WL
74756, *7 (Mar. 17, 1993). If the evidence outside the record is only "marginally significant,"
res judicata still applies to the claim. State v. Lindsey, 12th Dist. Brown No. CA2002-02-
002, 2003-Ohio-811, ¶ 22, citing Lawson at 315.
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{¶27} "In reviewing an appeal of postconviction relief proceedings, this court applies
an abuse of discretion standard." State v. Snead, 12th Dist. Clermont No. CA2014-01-014,
2014-Ohio-2895, ¶ 16. The term "abuse of discretion" implies that the trial court's attitude
is unreasonable, arbitrary, or unconscionable. State v. Thornton, 12th Dist. Clermont No.
CA2012-09-063, 2013-Ohio-2394, ¶ 34; State v. Hancock, 108 Ohio St.3d 57, 2006-Ohio-
160, ¶ 130. "The trial court does not abuse its discretion in dismissing a PCR petition
without an evidentiary hearing if (1) the petitioner fails to set forth sufficient operative facts
to establish substantive grounds for relief, or (2) the operation of res judicata prohibits the
claims made in the petition." Myers at ¶ 18.
{¶28} With these principles in mind, we now address Froman's assignments of error.
We address certain assignments of error out of the order presented.
B. Use of the State's Briefing in the Trial Court's Written Decision
{¶29} Assignment of Error No. 2:
{¶30} FROMAN'S RIGHTS AS GUARANTEED BY THE EIGHTH AND
FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION WERE
VIOLATED BY THE TRIAL COURT FAILING TO PROVIDE HIM THE INDEPENDENT,
DELIBERATIVE PROCESS TO WHICH HE IS DUE.
{¶31} In a 2018 email correspondence between the trial court judge and the parties'
counsel, the judge requested that the parties submit their PCR petition briefings to the court
in a Microsoft Word document. The judge explained that, sometimes "I want to restate what
has been included in one of the briefs * * * [and] it is easier if I cut and paste those portions."
{¶32} Froman points to various sections of the trial court's 31-page decision denying
his PCR petition that were apparently copied and pasted from the state's motion to dismiss.
Froman argues that the trial court's use of these excerpts shows that the trial court failed to
issue its own decision and instead used a "large portion of the State's analysis" in denying
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various grounds for relief. Froman even claims that the trial court's decision was "almost
completely derived" from the state's motion to dismiss. He also argues that by copying
portions of the state's brief the trial court showed unfairness and presented the image that
it was an "advocate" for the state and biased against Froman. Froman suggests that the
trial court's decision demonstrates bias. On these bases, Froman argues in Assignment of
Error No. 2 that the trial court abused its discretion by denying his "right" under the Eighth
and Fourteenth Amendments to the United States Constitution to "an independent,
deliberative review."
{¶33} The state, on the other hand, argues that the trial court's decision shows that
the court did, in fact, conduct an independent analysis. The state argues that even if the
court relied on or "cut and pasted" into its decision certain portions of the state's motion to
dismiss, this alone does not prove that the trial court did not engage in an independent
analysis or that the court was biased. The state argues that Froman's argument, though
not explicitly stated in terms of judicial bias, amounts to an argument that the trial court was
biased and that Froman has not overcome the presumption that the trial court acted
impartially.
{¶34} It is true that there is a general presumption that a judge is fair and impartial.
State v. Dennison, 10th Dist. Franklin No. 12AP-718, 2013-Ohio-5535, ¶ 49, citing In re
Disqualification of Kilpatrick, 47 Ohio St.3d 605, 606 (1989). Froman, as the party alleging
a lack of fairness and impartiality, has the burden of bringing forth evidence to overcome
that presumption. Id.{¶35} However, "R.C. 2701.03 provides the exclusive means by which a litigant may
claim that a common pleas judge is biased and prejudiced." Vogel v. Felts, 12th Dist.
Clermont No. CA2008-05-051, 2008-Ohio-6569, ¶ 14, citing Vera v. Yellowrobe, 10th Dist.
Franklin No. 05AP-1081, 2006-Ohio-3911, ¶ 54. "To that end, it is the Ohio Supreme Court,
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not this Court, that has the authority to determine whether a [common pleas] judge is biased
or prejudiced." Blair v. Adkins, 12th Dist. Fayette No. CA2020-10-018, 2021-Ohio-2292, ¶
9, citing In re Guardianship of Constable, 12th Dist. Clermont No. CA97-11-101, 1998 WL
142381, *4 (Mar. 30, 1998) ("'[a] court of appeals is without authority to pass upon the
disqualification of a judge'"), quoting State v. Blankenship, 115 Ohio App.3d 512, 516 (12th
Dist.1996). That said, we may review arguments that a judge's actions violated a
defendant's procedural due process rights, and we review Froman's Assignment of Error
No. 2 in that way. See Blair at ¶ 10.
{¶36} We have reviewed the state's motion to dismiss, the trial court's decision
granting the state's motion, and Froman's exhibits identifying the portions of each that
Froman claims the trial court copied. We find that Froman has not established that the trial
court failed to provide him with an independent, deliberative process. Froman grossly
overstates how much the trial court used the state's motion to dismiss in the trial court's
decision when he states that the decision was "almost completely derived" from the motion.
In fact, while Froman is correct that some passages were copied verbatim, most of the trial
court's decision was not copied from the state's motion.
{¶37} But we need not describe the exact percentage of the trial court's decision
attributable to the state's motion to dismiss. That the court incorporated the state's
language in its own decision does not establish that the trial court did not independently
deliberate.3 The court could have simply decided, after a review of arguments by both the
state and Froman, that it agreed with the state's position. Froman points to no legal
3. Froman argues that "An 'unbiased' opinion should not resemble so closely the arguments drafted by one
of the adversaries." Froman cites no authority for this proposition. That is unsurprising, because it is a
common, accepted, and ethical practice in the law for judges to refer to and rely on text from other judicial
decisions and from documents submitted by the parties. It is only natural that when a party is correct about
a point of law or fact, the judge's decision will closely resemble, and perhaps even mimic, the arguments made
by that party.
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authority that would prevent a court from using one side's legal arguments in drafting a
written decision. The court stated in its decision granting the state's motion to dismiss that
it conducted the necessary review of all materials submitted with the petition, under R.C.
2953.21(D) and (F). Based on our review of the trial court's decision, we conclude that the
trial court engaged in an independent, deliberative process. Froman merely speculates that
the trial court did not independently deliberate. We overrule Assignment of Error No. 2.
C. Claims of Ineffective Assistance During the Guilt Stage of the Trial
(Grounds 1-2, 4-13, 22-28, and 44)
{¶38} Assignment of Error No. 3:
{¶39} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
FROMAN'S CLAIMS THAT HIS TRIAL COUNSEL RENDERED CONSTITUTIONALLY
DEFICIENT PERFORMANCE IN THE TRIAL PHASE OF HIS CAPITAL TRIAL, WITHOUT
ALLOWING FOR AN EVIDENTIARY HEARING, AND IN FAILING TO GRANT RELIEF ON
THESE MERITORIOUS IAC CLAIMS.
{¶40} Froman's PCR petition contained 20 grounds for relief (Grounds 1-2, 4-13,
22-28, and 44) related to ineffective assistance of counsel during the guilt stage of his trial.
In those grounds for relief, Froman claimed his trial counsel4 were ineffective by failing to
(1) adequately question and challenge allegedly racially biased jurors during voir dire, (2)
adequately address issues of negative pretrial publicity, (3) investigate and present expert
testimony on the effects of his testosterone use, and (4) effectively cross-examine a state's
witness. The trial court denied all these grounds for relief, and Froman argues that such
denial was an abuse of the trial court's discretion. We address each argument in turn.
4. The word "counsel" can refer to attorneys in the singular or plural. In this opinion, our references to
Froman's trial "counsel" are in the plural, as Froman was represented by two attorneys during his trial.
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1. Standard of Review
{¶41} To establish a claim of ineffective assistance of counsel, a petitioner must
show that an attorney's performance was deficient and that the deficient performance
prejudiced the defense. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052(1984). In postconviction proceedings, a petitioner bears the initial burden of submitting
evidentiary materials containing sufficient operative facts to demonstrate the lack of
competent counsel and prejudice resulting from counsel's ineffectiveness. State v.
Jackson, 64 Ohio St.2d 107, 111 (1980).
{¶42} Under the res judicata doctrine, a trial court may dismiss a postconviction
relief petition where a petitioner, represented by new counsel on direct appeal, could have
raised the ineffective assistance of trial counsel claim on direct appeal without evidence
outside the record. State v. Lentz, 70 Ohio St.3d 527 (1994), syllabus; State v. Loza, 12th
Dist. Butler No. CA96-10-214, 1997 WL 634348, *3 (Oct. 13, 1997). Additionally, mere
presentation of evidence outside the record does not transform a claim into one addressable
in postconviction. Myers, 2021-Ohio-631 at ¶ 95, citing State v. Drummond, 7th Dist.
Mahoning No. 05 MA 197, 2006-Ohio-7078, ¶ 17. The evidence must show that the
petitioner could not have appealed his claim based on the information in the original record.
Id.
2. Failure to Challenge Allegedly Racially Biased Jurors (Grounds 7-13, 44)
{¶43} In Ground 7 of his PCR petition, Froman argued that his trial counsel were
ineffective "for failing to voir dire individual jurors on racist attitudes." In Grounds 8 through
13, Froman argued that his trial counsel were ineffective for failing to voir dire six specific
jurors—that is, Jurors 5, 13, 19, 23, 46, and 49—on "racial bias" or "racial and/or ethnic
bias." In Ground 44, Froman argued that his trial counsel were ineffective for failure to
challenge jurors for implicit racial bias.
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{¶44} In support of these arguments, Froman pointed to certain answers that Jurors
5, 13, 19, 23, 46, and 49 gave to various questions on the long form jury questionnaire. For
example, Froman argued that his trial counsel should have explored alleged racial bias held
by Juror 49 because she stated in her juror questionnaire responses that she "strong[ly]
agree[d]" that "some races and/or ethnic groups tend to be more violent than others," and
elaborated, "statistics show that there are more black people commit [sic] crimes. And
certain religions have violent beliefs." Froman also pointed out that Juror 49 stated that
racial discrimination against black people was "not a problem" and, when asked if she had
ever had a "negative or frightening" experience with a person of another race, she described
an experience she had with an African-American male who "approach[ed] our training
center at night and call[ed] us names and made derogatory remarks."
{¶45} Froman also argues that his trial counsel showed a lack of understanding of
implicit bias when, during voir dire, his counsel failed to question jurors about their implicit
biases and stated, "I assume none of you people are racist. There is no reason for me to
believe that. That would be a totally false impression because there's nothing to indicate
that."
{¶46} The trial court dismissed Grounds 7 through 13 and 44. The trial court held
that res judicata barred Froman's arguments about the six jurors at issue in Grounds 7
through 13 and about implicit bias in Ground 44 because Froman could have raised those
arguments in his direct appeal. Froman appeals, arguing that the trial court abused its
discretion.
a. Res Judicata
{¶47} We agree with the trial court that res judicata barred Grounds 7 through 13
and 44. Froman's claims of ineffective assistance related to alleged racial bias are primarily
based on (1) jurors' answers to questions in the long form juror questionnaire and (2)
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questions asked (or not asked) by counsel and answers given by jurors during voir dire.
The juror questionnaires and the voir dire transcript were within the trial record. Froman
therefore could have raised during his direct appeal the very same ineffective assistance
arguments he raised in Grounds 7 through 13 and 44 of his PCR petition. Wagers, 2012-
Ohio-2258 at ¶ 10; Szefcyk, 77 Ohio St.3d 93 at syllabus.
{¶48} In fact, Froman did, on direct appeal, argue that his trial counsel provided
ineffective assistance by failing to question or remove Juror 49 based on the very same
juror questionnaire answers that Froman pointed to in his PCR petition. The Ohio Supreme
Court rejected Froman's argument and held that because Juror 49 promised that she could
set her opinions aside and decide the case based on the evidence, Froman's counsel did
not provide ineffective assistance and that "the record does not support Froman's argument
that [Juror 49] was actually biased against him." Froman, 2020-Ohio-4523 at ¶ 57.
Because the supreme court has already rejected Froman's ineffective assistance
arguments related to Juror 49, we may not reach a different result now, when Froman is
attempting to take a second bite at the apple. See State v. Bethel, 10th Dist. Franklin No.
07AP-810, 2008-Ohio-2697, ¶ 2 ("We are not at liberty to re-decide any issues that were
already decided by the Ohio Supreme Court unless the appellant presents some new
evidence or factual information that was unavailable on direct appeal").
{¶49} Froman did not argue in his direct appeal that his trial counsel provided
ineffective assistance related to Jurors 5, 13, 19, 23, and 46.5 However, Froman could have
5. While Froman did not argue ineffective assistance related to Jurors 5, 13, 19, 23, and 46 in his direct appeal,
he did argue in his direct appeal that the seating of three of those five jurors—that is, Jurors 5, 13, and 46—
violated his rights under the Sixth and Fourteenth Amendments to the United States Constitution. The
supreme court analyzed Froman's arguments related to those jurors and concluded, "We do not agree that,
as Froman argues, the questionnaire responses of juror Nos. 5, 13, and 46 demonstrate 'blatantly expressed
racial views.' The record does not demonstrate that the jurors were unable to be impartial, and Froman has
not established that they were actually biased against him." Froman at ¶ 61. In reaching this conclusion, the
supreme court noted that Froman had omitted from his description of the questionnaire answers given by
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brought such arguments in his direct appeal as such arguments rely on information in the
trial record. Therefore, res judicata barred Froman's ineffective assistance arguments
related to Jurors 5, 13, 19, 23, and 46, just as res judicata barred Froman's ineffective
assistance argument as to Juror 49. Wagers, 2012-Ohio-2258 at ¶ 10; Szefcyk, 77 Ohio
St.3d 93 at syllabus. We affirm the trial court as to its denial of Grounds 7 through 13 and
44, and we need not review those grounds further.
b. Analysis of Evidence Outside the Record
{¶50} Froman tries to circumvent the res judicata bar of his claims of ineffective
assistance relating to alleged racial bias by pointing to new documents that he filed with his
PCR petition and that were not in the trial record on direct appeal. Those documents were
(1) a 2003 article by the American Bar Association ("ABA Guidelines"), titled "Guidelines for
the Appointment and Performance of Defense Counsel in Death Penalty Cases," stating
that defense counsel in capital cases should be aware of racial issues with juries and should
question jurors about racial bias, (2) the affidavit of Dr. Jack Glaser, and (3) the expert
report of Donald Malarcik. We must determine whether Froman has submitted competent,
relevant, and material evidence outside the record to overcome the res judicata bar.
Lawson, 103 Ohio App.3d at 315.
{¶51} Upon review and for the reasons described below, we find that the extra-
record materials that Froman submitted with his PCR petition fail to transform his claims
about alleged racial bias of jurors barred by res judicata into those addressable in a
those three jurors certain answers that undermined his claim that they were racially biased. For example, the
supreme court noted that Juror 13 admitted to being exposed to a person exhibiting "racial, sexual, religious,
and/or ethnic prejudice" by explaining he/she had heard "Friends using words that shouldn't be used." Id. at
¶ 59. And the supreme court noted that Juror 46 had checked a box indicating that "the issue of racial
discrimination against African-Americans in our society" was a "very serious problem." Id. Because the
supreme court has already rejected Froman's racial bias arguments related to Jurors 5, 13, and 46, we could
not re-decide this issue and find that Froman's trial counsel were ineffective in failing to question those jurors
further without some new evidence unavailable on direct appeal. See Bethel at ¶ 2.
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postconviction relief petition.
i. ABA Guidelines
{¶52} Froman argues that his trial counsel failed to address potential racial bias
issues in a manner consistent with the ABA Guidelines' recommendations. For example,
he points to the ABA Guidelines' statement that the "defense in a capital case is entitled to
voir dire to discover those potential jurors poisoned by racial bias, and should do so when
appropriate," and argues that his trial counsel did not ask sufficient questions about race
during voir dire. The ABA Guidelines were not part of the trial record and Froman submitted
the ABA Guidelines for the first time with his PCR petition.
{¶53} Froman correctly cites the United States Supreme Court as having stated that
when courts analyze claims of ineffective assistance of counsel, they may look to American
Bar Association standards "and the like" as demonstrating "prevailing professional norms."
Strickland 466 U.S. at 688. But Froman's citation undermines his argument. The ABA
Guidelines are legal guidance that—just like other materials arguably demonstrating
"prevailing professional norms"— any court may consider when reviewing an ineffective
assistance of counsel claim. Id. As legal guidance, Froman or the state could have cited
the ABA Guidelines (which were issued in 2003, long before his direct appeal in 2017) at
any time in Froman's direct appeal. Therefore, res judicata barred Froman's arguments
concerning the ABA Guidelines. Wagers, 2012-Ohio-2258 at ¶ 10; Szefcyk, 77 Ohio St.3d
93 at syllabus.
{¶54} Froman cannot rely on the ABA Guidelines for another reason. After
explaining that ABA guidance materials might establish "prevailing professional norms," the
United States Supreme Court cautioned that such published materials "are only guides."
Strickland at 688. These materials are "only guides" because
No particular set of detailed rules for counsel's conduct can
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satisfactorily take account of the variety of circumstances faced
by defense counsel or the range of legitimate decisions
regarding how best to represent a criminal defendant. Any such
set of rules would interfere with the constitutionally protected
independence of counsel and restrict the wide latitude counsel
must have in making tactical decisions. Indeed, the existence
of detailed guidelines for representation could distract counsel
from the overriding mission of vigorous advocacy of the
defendant's cause.
(Citations omitted.) Id. at 688-689. Stated otherwise, the ABA Guidelines are not
"inexorable commands" with which all capital defense counsel must comply. Bobby v. Van
Hook, 558 U.S. 4, 8, 130 S.Ct. 13 (2009). Instead, the ABA Guidelines are just that –
guidelines purporting to establish a national standard of practice for defense counsel in
capital cases. The ABA Guidelines are generic; that is, they are not specific to Froman's
case. The ABA Guidelines do not show that any jurors in Froman's case harbored a racial
bias against Froman or that Froman's counsel were ineffective in their voir dire of the jury.
{¶55} We therefore conclude that the ABA Guidelines are not competent, relevant,
and material evidence outside the record that would allow Froman to overcome the res
judicata bar as to his arguments about ineffective assistance with respect to potential racial
bias. Lawson, 103 Ohio App.3d at 315. And we find that the ABA Guidelines are not
significant and do not advance Froman's claim beyond a mere hypothesis and a desire for
further discovery. Lindsey, 2003-Ohio-811 at ¶ 22.
ii. Dr. Glaser's Affidavit
{¶56} Froman submitted an affidavit signed by Dr. Jack Glaser with his PCR petition.
Dr. Glaser's affidavit was not part of the trial record on Froman's direct appeal. Froman
argues that Dr. Glaser's affidavit establishes that his trial counsel were ineffective in
identifying racial bias during voir dire, and that Dr. Glaser could have assisted trial counsel
in that task if Froman's counsel had retained him.
{¶57} Dr. Glaser stated in his affidavit that he is a social psychologist who
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specializes in issues involving stereotyping and prejudice. Dr. Glaser stated that there was
a "considerable likelihood" that racial stereotypes influenced the jurors in Froman's case.
Dr. Glaser arrived at this conclusion based on his review of the jury questionnaires, and
specifically the jurors' responses. Ultimately, Dr. Glaser opined that Froman was not
afforded a fair and impartial trial by jury.
{¶58} As for Froman's argument that Dr. Glaser's affidavit establishes that his trial
counsel were ineffective in identifying racial bias during voir dire, we conclude that Dr.
Glaser's affidavit is deficient in several ways. First, Dr. Glaser did not address the fact that
all the seated jurors acknowledged during voir dire that race should not play a role in the
decision-making process. Dr. Glaser simply speculates that the allegedly racially biased
jurors disregarded their promise to remain fair and impartial and instead decided the case
based on racial bias. State v. Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, ¶ 162 (holding
that an expert's opinion is admissible so long as it provides evidence of more than mere
possibility or speculation). Second, Dr. Glaser's affidavit fails to acknowledge that the court
instructed the jurors that they must decide the case only on the evidence presented at trial
and simply speculates that the jurors ignored their instructions. This contradicts our duty
under Ohio law to presume that jurors followed a court's instructions. State v. McKelton,
148 Ohio St.3d 261, 2016-Ohio-5735, ¶ 208. Third, Dr. Glaser's affidavit is simply a
repackaging of information in the record concerning alleged racial bias among jurors to
promote an argument that we have already determined res judicata bars. Froman may not
avoid res judicata by simply submitting an affidavit that repackages information and issues
in the record. See Lawson, 103 Ohio App.3d at 315; Casey, 2018-Ohio-2084 at ¶ 15.
{¶59} We also note the law does not support Froman's reliance on Dr. Glaser's
discussion of "implicit bias," or "implicit stereotyping"—that is, the idea that all individuals
harbor biases that they do not recognize or acknowledge consciously. Effectively, Froman
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cites Dr. Glaser's opinion to suggest that counsel were per se ineffective for not presuming
that all jurors are biased and then exposing these biases through interrogation. But there
is no basis for such a presumption in the law, and Froman cites none. We reject the notion
that defense counsel must conduct voir dire with the presumption that all jurors are biased.
Trial counsel is in the best position to determine whether to question any potential juror and
to what extent. State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, ¶ 225. "'Few
decisions at trial are as subjective or prone to individual attorney strategy as juror voir dire,
where decisions are often made on the basis of intangible factors.'" State v. Mundt, 115
Ohio St.3d 22, 2007-Ohio-4836, ¶ 64, quoting Miller v. Francis, 269 F.3d 609, 620 (6th
Cir.2001). "'[T]he selection process is more an art than a science, and more about people
than about rules.'" Id. quoting Romero v. Lynaugh, 884 F.2d 871, 878 (5th Cir.1989). In
some cases, asking few or no questions of a prospective juror may be the best tactic for
any number of reasons. Id. at ¶ 65.
{¶60} Dr. Glaser's opinion is substantively premised upon evidence within the trial
record and does not advance Froman's arguments that the jurors in question were racially
biased against him. In sum, Dr. Glaser's affidavit is not competent, relevant, and material
evidence outside the record that would allow Froman to overcome the res judicata bar as
to his arguments about ineffective assistance in discovering potential racial bias in jury
selection. Lawson, 103 Ohio App.3d at 315. In addition, we find that Dr. Glaser's affidavit
is not significant and does not advance Froman's claim beyond a mere hypothesis and a
desire for further discovery. Lindsey, 2003-Ohio-811 at ¶ 22.
{¶61} To the extent that Froman argues that his trial counsel were ineffective
because they failed to consult Dr. Glaser, who could have assisted them as to racial issues
during voir dire, the record shows that trial counsel were effective in asking questions
intended to identify potential racial bias among jurors.
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iii. Attorney Donald J. Malarcik's Affidavit
{¶62} Froman attached the report of a potential expert witness, attorney Donald J.
Malarcik, to his PCR petition. Froman makes no argument related to Malarcik's report in
his appellate brief. Even so, we have reviewed the report and will analyze whether it
advances Froman's ineffective assistance of counsel arguments beyond the res judicata
bar.
{¶63} In his putative expert report, Malarcik explains that the Ohio Supreme Court
certified him to accept capital cases in 1997 and that he has since represented many capital
defendants in death penalty cases. Malarcik also states that he has significant experience
teaching about the representation of defendants in death penalty cases at legal conferences
or seminars. Malarcik opines that Froman's trial counsel were ineffective for failing to
question Jurors 5, 13, 46, and 49 concerning racial bias.
{¶64} Like Dr. Glaser's affidavit, Malarcik's report simply repackages Froman's
arguments related to his trial counsel providing ineffective assistance as to racial bias. See
Lawson, 103 Ohio App.3d at 315; Casey, 2018-Ohio-2084 at ¶ 15. Malarcik's putative
expert report is substantively based on matters within the trial record. Malarcik was not
present during voir dire and would not be privy to those nuances of juror behavior that might
inform counsel. Ultimately, Mr. Malarcik's report is speculative and does not materially
advance Froman's ineffective assistance claims.
{¶65} We therefore conclude that Malarcik's report is not competent, relevant, and
material evidence outside the record that would allow Froman to overcome the res judicata
bar related to his arguments about ineffective assistance in pursuing potential racial bias
issues during jury selection. Lawson at 315. In addition, we find that Malarcik's report is
not significant and does not advance Froman's claim beyond a mere hypothesis and a
desire for further discovery. Lindsey, 2003-Ohio-811 at ¶ 22.
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c. Conclusion Regarding Ineffective Assistance Regarding Alleged Racial Bias
{¶66} For these reasons, the trial court did not abuse its discretion in finding that res
judicata barred Froman's arguments in Grounds 7 through 13 and 44. Froman could have
raised, and in some cases did raise, those arguments in his direct appeal. And the new
documents submitted by Froman with his PCR petition are not significant and do not set
forth sufficient operative facts establishing substantive grounds for relief. Id.; Blankenburg,
2012-Ohio-6175 at ¶ 9.
3. Ineffective Assistance Regarding Pretrial Publicity (Grounds 4-6)
{¶67} In Ground 4, Froman argues that his "trial counsel were ineffective for failing
to adequately support and request their change of venue request for Froman's trial." (Sic.)
In Ground 5, Froman argues that "Defense counsel were ineffective for failing to voir dire
the jury on the extensive, prejudicial, and racist pretrial publicity that occurred in this case."
In Ground 6, Froman argues that "[p]rejudicial pretrial publicity deprived Froman of his
fundamental rights to due process and a fair trial." In support of these grounds, Froman
argues that media articles described gruesome details of the case and that prosecutors'
statements portrayed him through "various racist stereotypes," which statements
dehumanized him as "innately savage, animalistic, destructive, and criminal-deserving
punishment, maybe death," and played into the stereotypes of "black dishonesty" and the
"black brute caricature."
{¶68} Froman concedes that his trial counsel moved for a change of venue because
of pretrial publicity and submitted to the trial court several news articles showing the type of
coverage the case received in the media. But Froman argues that (1) his trial counsel did
not effectively voir dire the jurors concerning their awareness of negative pretrial publicity,
and (2) his trial counsel were deficient in investigating the media coverage of his case and
the impact it had on the jury pool.
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{¶69} The trial court dismissed Grounds 4 through 6. The trial court held that res
judicata barred Froman's arguments related to pretrial publicity in Grounds 4 through 6
because Froman could have raised those arguments on direct appeal. On appeal, Froman
argues that the trial court abused its discretion.
a. Res Judicata
{¶70} We agree with the trial court that res judicata barred Froman's arguments in
Grounds 4 through 6. Froman's claims of ineffective assistance related to pretrial publicity
are primarily based on (1) his motion for change of venue and (2) questions asked (or not
asked) by counsel and answers given by jurors during voir dire. Froman filed and the court
decided the motion for change of venue before trial, and of course the parties and court
completed voir dire at the beginning of the trial. Thus, both sources of evidence were in the
trial record on direct appeal. Froman therefore could have raised on direct appeal his
arguments related to the alleged deficiencies in his counsel's investigation of pretrial
publicity and in his motion for change of venue. Wagers, 2012-Ohio-2258 at ¶ 10, citing
Szefcyk, 77 Ohio St.3d 93 at syllabus.
{¶71} Likewise, Froman could have argued on direct appeal that his trial counsel's
questioning of potential jurors about pretrial publicity during voir dire was deficient. In fact,
as discussed above, Froman did argue in his direct appeal that his counsel's conduct of voir
dire was deficient as to issues of racial bias, and he could have made similar arguments
about pretrial publicity. Froman simply failed to raise his arguments related to pretrial
publicity in his direct appeal. The trial court therefore correctly held that res judicata barred
Froman's arguments related to pretrial publicity. Wagers at ¶ 10; Szefcyk at syllabus.
b. Analysis of Evidence Outside the Record
{¶72} Froman submitted with his PCR petition many documents related to pretrial
publicity that were not part of the trial record. We must examine whether these new
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documents presented competent, relevant, and material evidence outside the record that
may defeat the application of res judicata. Lawson, 103 Ohio App.3d at 315.
{¶73} After a review of the pretrial documents in the trial record and those attached
to Froman's PCR petition, we find that the pretrial publicity materials attached to Froman's
PCR petition were largely cumulative of the articles that Froman's counsel submitted to the
court before trial.
{¶74} Froman submitted three articles with his motion for change of venue. The title
of the first article is "Accused I-75 shooter files 93 Warren County Jail complaints." That
article described 93 medical complaints and 59 inmate requests made by Froman. The
point of the article was that Froman had initiated many more complaints than the average
inmate. The second article is titled, "Trial Delayed for I-75 murder suspect Terry Froman."
The article described a delay in Froman's trial based on Froman's request for a new lawyer.
The article then described allegations concerning Froman's criminal acts, including that he
killed Eli, kidnapped Thomas, and shot and killed Thomas after a police chase. A third
article, titled "Trial again delayed for man accused in Warren County highway slaying"
described a trial delay after the judge granted Froman's request for a new lawyer. The
article also discussed Froman's statement that he could not get a fair trial in Warren County
because the county was allegedly "racially imbalanced."
{¶75} The new articles submitted along with Froman's PCR petition include articles
containing similar reporting on pretrial matters. Several articles describe Froman's trial
counsel's demands to have the death-specifications dismissed from his case. An article
titled "Accused I-75 shooter gets new attorneys" describes how the trial court continued
Froman's trial for a third time after the court granted Froman's request for new lawyers. In
fact, Froman included one of the articles submitted with the PCR petition, "Trial Delayed for
I-75 murder suspect Terry Froman," with the original motion for change of venue. Another
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article titled, "Suspect in Ohio shooting to get new attorney; trial delayed" recounted a trial
delay based on Froman's request for a new lawyer. The same article described Froman's
claim that he would be denied a fair trial in Warren County due to racial imbalances in the
population. Froman included with his PCR petition multiple articles from different news
sources that all variously report on his trial delays and continuances and his claim that he
could not receive a fair trial.
{¶76} Thus, much of the pretrial publicity documentation presented with Froman's
PCR petition was cumulative to what Froman previously submitted with his motion for
change of venue. Cumulative evidence of pretrial publicity fails to establish that the
outcome at trial would have been different had Froman's counsel submitted the new
materials. See State v. Hicks, 12th Dist. Butler No. CA2004-07-170, 2005-Ohio-1237, ¶ 12
(affidavits containing evidence cumulative to evidence in the record failed to establish a
changed outcome).
{¶77} The record shows that the trial court was aware of the pretrial publicity about
Froman's case, and the mere fact that trial counsel failed to submit some published articles
about the case in support of Froman's motion for a change of venue does not, by itself,
amount to ineffective assistance. State v. McKnight, 4th Dist. Vinton No. 07CA665, 2008-
Ohio-2435, ¶ 31 ("[C]ounsel's failure to include every piece of publicity surrounding a case
does not amount to ineffective assistance of counsel when the trial court is well aware of
the level of publicity").
{¶78} Crim.R. 18(B) allows a court to transfer a case to another jurisdiction when it
appears that a fair and impartial trial cannot be held in the court in which the action is
pending. That said, pretrial publicity, even where that publicity is "pervasive" and "adverse,"
does not inevitably lead to an unfair trial. State v. Mammone, 139 Ohio St.3d 467, 2014-
Ohio-1942, ¶ 54.
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{¶79} The Ohio Supreme Court has said that the best test of whether prejudicial
pretrial publicity has prevented a fair and impartial trial is a "'careful and searching voir dire.'"
Id. at ¶ 55, quoting State v. Bayless, 48 Ohio St.2d 73, 98 (1976). Therefore, the supreme
court advised that a trial court should make a good-faith effort to seat a jury before granting
a motion for a change of venue. Id.{¶80} At the same time, in "rare" cases, pretrial publicity is "so damaging" that a
court must presume prejudice even without a showing of actual bias. Id. at ¶ 56, citing
Sheppard v. Maxwell, 384 U.S. 333, 86 S.Ct. 1507 (1966). 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 would be a vain act.
Id.{¶81} Upon a full consideration of the "new" pretrial publicity materials that Froman
submitted with his PCR petition, we do not find that Froman has made a clear or manifest
showing that pretrial publicity was so pervasive or prejudicial that the trial court had to
presume prejudice. Nor do we find that the trial court would have granted a change of
venue had trial counsel submitted those additional pretrial publicity materials that Froman
submitted with his PCR petition.
{¶82} As described above, much of the "new" pretrial publicity material submitted
with Froman's PCR petition was merely cumulative of the articles already submitted with
the motion for change of venue. Those publicity materials in the record covered largely
benign topics such as Froman's medical issues, complaints in jail, and continuances of the
trial. Much of the actual added content was duplicative, that is, multiple news articles
repeating the same factual reporting on pretrial events. None of the reporting we reviewed,
either if considered specifically or holistically, would cause us to question whether pretrial
media coverage of the case was so pervasive and prejudicial that a court must presume
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prejudice. As discussed below, the court and parties did in fact engage the venire in a
careful and searching voir dire as to pretrial publicity concerns and managed to impanel a
jury.
{¶83} Froman also argues that certain media coverage, including comments by
prosecutors, indicated that Froman had a history of domestic violence, kidnapping, and
stalking. Froman claims these comments "dehumanized" him and played into stereotypes
of "black dishonesty" and "black brute caricature." However, in support of this argument,
Froman merely cites to a law review article generally discussing what it describes as implicit
racial bias in "prosecutorial summations."6 Froman points to no evidence supporting the
contention that any statements by prosecutors in his case depicted him in a racist manner,
that any jurors were aware or affected by any allegedly racist comments, or that such
alleged comments prevented a fair and impartial jury. The articles cited by Froman consist
of statements by prosecutors and news reporting that is factual. Froman does not dispute
the accuracy of any of the statements made by prosecutors.
{¶84} We therefore conclude that the new pretrial publicity materials Froman
submitted with his petition are not competent, relevant, and material evidence outside the
record that would allow him to overcome the res judicata bar related to his arguments about
ineffective assistance in pursuing a change of venue. Lawson, 103 Ohio App.3d at 315.
And we find that the new materials are not significant and do not advance Froman's claim
beyond a mere hypothesis and a desire for further discovery. Lindsey, 2003-Ohio-811 at ¶
22.
c. Merits of Froman's Arguments Related to Pretrial Publicity
{¶85} Even if res judicata did not bar Froman's pretrial publicity arguments, the
6. Praatika Prasad, Implicit Racial Biases in Prosecutorial Summations: Proposing an Integrated Response,
86 Fordham L. Rev. 3091, 3103-04 (2018).
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record does not support Froman's argument that counsel and the court failed to effectively
question jurors about pretrial publicity. Counsel and the court extensively questioned jurors
about pretrial publicity during voir dire and the record shows that jurors who acknowledged
having been exposed to pretrial publicity about Froman's case were questioned concerning
whether they could decide the case impartially. The trial court excused jurors who indicated
partiality based on pretrial publicity.
{¶86} For example, the record reflects that Juror No. 35 was observed with a
newspaper that contained an article about Froman. The parties extensively questioned the
juror about that issue. The court excused Juror 35.
{¶87} Juror 85 stated during voir dire that he had heard about Froman on the radio
while he was sitting in traffic. The parties questioned Juror 85 about what he had heard
and asked whether he thought he could be impartial given his awareness of the case. He
repeatedly assured the parties and court that he could be impartial.
{¶88} The court questioned the prospective jurors as a group and asked whether
there was anyone who could not put aside any information that they may have heard about
the case and start with a clean state related to the facts and evidence. All jurors agreed
that they could put aside what they may have heard and decide the case from a clean slate.
Juror 13 stated that he had read an article and had formed an opinion about the case but
stated that he could set that opinion aside.
{¶89} In multiple instances in group discussions, unidentified jurors responded
affirmatively when asked if they had read something about the case. The court then
questioned them as a group and asked whether they could set that information aside, and
all agreed that they could.
{¶90} Juror 56 stated that he had heard something about the case before the trial
and when asked if he could set that aside and start with a clean slate, the juror responded,
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"I don't think I really can." The court excused Juror 56.
{¶91} Juror 108 stated that she had seen something about Froman on television but
could put it aside for trial purposes.
{¶92} Juror 98 stated that she had heard something about the case and could not
put it aside and had formed an opinion about Froman's guilt or innocence. The court
excused Juror 98.
{¶93} Juror 107 stated he recalled seeing mention of Froman's case on Twitter but
would try his best not to let those things influence him. The court excused Juror 107.
{¶94} Juror 113 stated that she had heard or read something about the case and
did not think she could set it aside. The court excused Juror 113.
{¶95} In other words, the record shows that the court and counsel discussed pretrial
publicity throughout the voir dire, and the court either excused or did not seat any jurors
who indicated an inability to act impartially based on materials they had seen before trial.
The trial court judge "who sees and hears the juror," has discretion to accept a juror's
assurances that he or she would be fair and impartial and would decide the case based on
the evidence. State v. Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751, ¶ 98, quoting
Wainwright v. Witt, 469 U.S. 412, 426, 105 S.Ct. 844 (1985), citing State v. Jones, 91 Ohio
St.3d 335, 338 (2001). Based on the voir dire, the trial court reasonably credited the jurors'
assurances and there was no evidence presented of actual bias. Froman's arguments to
the contrary in Grounds 4 through 6 of his PCR petition are simply without merit.
d. Conclusion on Ineffective Assistance Related to Pretrial Publicity
{¶96} For all these reasons, the trial court did not abuse its discretion in finding that
res judicata barred Froman's arguments in Grounds 4 through 6. Froman could have raised
these arguments on direct appeal. Additionally, the new evidence about pretrial publicity
presented by Froman is not significant and does not set forth sufficient operative facts
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establishing substantive grounds for relief. Lindsey, 2003-Ohio-811 at ¶ 22; Blankenburg,
2012-Ohio-6175 at ¶ 9. Finally, the record does not support Froman's claim that counsel
failed to voir dire prospective jurors on pretrial publicity.
4. Ineffective Assistance Regarding Expert Testimony on Testosterone Use
(Grounds 1-2)
{¶97} Before addressing the trial court's handling of Froman's next set of grounds
for relief concerning ineffective assistance, we must provide some background information
about the offenses of "aggravated murder" and "murder." The statute defining aggravated
murder states, "No person shall purposely, and with prior calculation and design, cause the
death of another or the unlawful termination of another's pregnancy." R.C. 2903.01(A).
The statute defining murder, on the other hand, states, "No person shall purposely cause
the death of another or the unlawful termination of another's pregnancy." R.C. 2903.02(A).
The two offenses are almost the same, except aggravated murder requires evidence of
another element: "prior calculation and design." R.C. 2903.01(A). Murder is a lesser
included offense of aggravated murder. State v. Haynie, 12th Dist. Clinton No. CA93-12-
039, 1995 WL 55289, *4 (Feb. 13, 1995).
{¶98} In this case, the state charged Froman with aggravated murder, so it had to
prove that Froman adopted a plan to kill Thomas. State v. Coley, 93 Ohio St.3d 253, 263
(2001).
{¶99} In Ground 1 of his PCR petition, Froman argued that his trial counsel provided
ineffective assistance by "fail[ing] to request a lesser included murder instruction and for
failure to present supporting expert testimony of lack of prior calculation and design." In
Ground 2, Froman argued that his trial counsel provided ineffective assistance by "fail[ing]
to request an involuntary intoxication instruction supported by readily available expert
testimony."
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{¶100} In support of these grounds for relief, Froman argued that his trial counsel
"failed to retain and/or utilize an expert in pharmacology, such as Dr. Craig Stevens, Ph.D.
* * *." Froman submitted Dr. Sevens' putative expert report with his PCR petition. In the
report, Dr. Stevens explains how testosterone supplements impact aggression and violence
among men. Dr. Stevens also reviews the dates on which pharmacy records show Froman
retrieved a prescription for testosterone supplements. Those dates included the day before
Froman killed Thomas and her son. Dr. Stevens opines that Froman's "aggression and
violence" was due, "at least in part," to increased levels of testosterone in his body.7
{¶101} The trial court dismissed Grounds 1 and 2. The trial court determined that Dr.
Stevens' testimony would not have merited an instruction on the lesser included offense of
murder because Ohio does not recognize the defenses of involuntary intoxication or
diminished capacity. The trial court also found that res judicata barred Grounds 1 and 2
and that the materials submitted by Froman did not constitute substantive grounds for relief.
{¶102} Froman argues in his appellate brief that the trial court abused its discretion
because Dr. Stevens would have been able to:
(1) present affirmative evidence Froman failed to act with prior
calculation and design; (2) present affirmative evidence of
Froman's involuntary intoxication at the time of the incident; (3)
assist with the cross-examination of the State's witnesses and
confront the State's case at trial; (4) provide defense counsel
the basis to ask for a lesser included murder instruction; and/or
(5) provide defense counsel the basis to ask for an involuntary
intoxication instruction.
Boiled down, Froman argues that Dr. Stevens would have testified that Froman's murder of
Thomas was "a reflection" of the testosterone in his system and not the product of
7. In his report, Dr. Stevens did not state that he communicated with Froman and learned that Froman
consumed or used the testosterone supplements after filling the prescription and before killing Thomas and
Eli. Dr. Stevens simply assumes that Froman used the testosterone supplements in that period. But there is
no support for this assumption in the record. Nor did Froman submit an affidavit with his PCR petition stating
that he used testosterone supplements during the relevant time.
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reasonable thought.
{¶103} Froman's argument is essentially that his trial counsel were ineffective for
failing to pursue a defense of involuntary intoxication — that he acted under an alleged "roid
rage" and that he was incapable of forming the necessary mens rea to support an
aggravated murder conviction. The First District faced a similar argument in State v.
Clemons, 1st Dist. Hamilton No. C-980456, 1999 WL 252655 (April 30, 1999). In that case,
the court convicted the defendant of aggravated murder and sentenced him to death, and
the Ohio Supreme Court affirmed on direct appeal. Id. at *1. The defendant filed a PCR
petition and argued that his "trial counsel were ineffective for failing to reasonably
investigate a 'Prozac defense' or obtain an expert to present testimony on Prozac in each
phase of the trial." Id. at *3. The defendant specifically argued that his ingestion of Prozac
rendered him involuntarily intoxicated, leaving him incapable of forming the required mens
rea. Id. at *4. The First District rejected this argument, noting that "Ohio does not recognize
a defense of diminished capacity." Id. In support, the court cited the Ohio Supreme Court's
opinion in State v. Wilcox, 70 Ohio St.2d 182 (1982). In Wilcox, the supreme court held
that a "defendant may not offer expert psychiatric testimony, unrelated to the insanity
defense, to show that the defendant lacked the mental capacity to form the specific mental
state required for a particular crime or degree of crime." Id. at paragraph two of the syllabus.
On this basis, and because there was "overwhelming evidence" of the defendant's
"murderous intent with prior calculation and design," the First District held that the trial court
properly rejected the defendant's argument that trial counsel provided ineffective assistance
by not reasonably investigating a "Prozac defense" and by not obtaining an expert to testify
about that defense. Clemons at *4.
{¶104} The Ohio Supreme Court applied the same principle when it stated, in State
v. Taylor, 98 Ohio St.3d 72, 2002-Ohio-7017, that,
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Except in the mitigation phase, "a defendant may not offer
expert psychiatric testimony, unrelated to the insanity defense,
to show that, due to mental illness, intoxication, or any other
reason, he lacked the mental capacity to form the specific
mental state required for a particular crime or degree of crime."
(Emphasis added.) Id. at ¶ 69, quoting State v. Cooey, 46 Ohio St.3d 20, 26 (1989).
{¶105} The Ninth District applied the same principle in a recent case. State v. Cowell,
9th Dist. Summit No. 30052, 2022-Ohio-1742. There, the defendant moved to withdraw his
guilty plea to aggravated burglary, felonious assault, rape, and kidnapping. Id. at ¶ 2-3.
The defendant argued that he should be permitted to withdraw his plea because when he
made the plea he was unaware of the side effects of Abilify, a drug he was apparently taking
at the time of his offenses. Id. at ¶ 4, 7. The trial court denied the defendant's motion and
the Ninth District affirmed, citing the language from Taylor that we cited in the previous
paragraph. Id. at ¶ 12. The court concluded that,
Because [the defendant] was previously determined to be sane
at the time of the offense, [the defendant] cannot now offer
expert psychiatric testimony to prove he lacked the requisite
mens rea to commit these crimes or that Abilify caused him to
involuntarily kidnap, assault, and rape the victims.
Id. at ¶ 12.
{¶106} Froman's ineffective assistance arguments in Grounds 1 and 2 are all based
on the argument that his use of testosterone supplements rendered him "involuntarily
intoxicated." This is a diminished capacity defense that is not permitted under Ohio law and
we find that the trial court properly granted the state's motion to dismiss related to Grounds
1 and 2. Taylor at ¶ 69.
{¶107} Even if Grounds 1 and 2 did not fail as a matter of law for the reasons just
described, the trial court would still have properly dismissed those grounds because the
evidence presented at trial would not support Froman's claim that Thomas' murder was an
impulsive act lacking any prior calculation and design. See Clemons at *4. Before the
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murder, Froman discussed his plans to kill Thomas with his friend, David Clark. In a
recorded conversation, Clark tried to persuade Froman to let Thomas go. Froman
responded,
[Froman]: I mean, I know you're trying to talk me down, baby I
appreciate it and all. But like I said, I mean it's just not going to
happen. It's just not going to happen.
[Clark]: There's still good stuff to live for, Fam.
[Froman]: Man, I already took one life, and I'm about to go ahead
and take two [more].
{¶108} In a subsequent phone conversation, Froman informed Clark that police were
following him, then he stated, "I'm gonna kill her dude." The facts at trial therefore did not
support an instruction on the lesser included offense of murder and the trial court properly
dismissed Grounds 1 and 2. See State v. Hines, 12th Dist. Clermont No. CA2017-06-025,
2018-Ohio-1780, ¶ 25 (In considering whether an instruction upon a lesser offense should
be given, a trial court must first determine whether an offense is a lesser included offense
of the crime charged. If the court answers that inquiry affirmatively, then the court must
proceed to determine whether the evidence in the case supports an instruction on the lesser
included offense).
{¶109} Froman has not shown that his trial counsel provided ineffective assistance
by failing to investigate and present evidence about involuntary intoxication by testosterone
supplements. We conclude that Dr. Stevens' report is not competent, relevant, and material
evidence outside the record that would allow Froman to overcome the res judicata bar
related to his arguments about pursuing a testosterone defense or seeking an instruction
on a lesser included offense. Lawson, 103 Ohio App.3d at 315. And we find that Stevens'
report is not significant and does not advance Froman's claim beyond a mere hypothesis
and a desire for further discovery. Lindsey, 2003-Ohio-811 at ¶ 22. The trial court properly
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dismissed Grounds 1 and 2.
5. Failure to Effectively Cross-Examine State's Witness (Grounds 22-28)
{¶110} Matthew White, a firearms examiner with the Ohio Bureau of Criminal
Investigation, testified at trial as the state's expert witness. White testified about his
examination of the gun recovered from Froman's vehicle, a .40-caliber Hi-Point
semiautomatic pistol. White determined the gun was operable. White also examined six
spent shell casings recovered from the vehicle. White matched the shell casings found in
the vehicle to the gun found in the vehicle. Froman's counsel did not object to White's
testimony as an expert witness.
{¶111} In Grounds 22-28 of his PCR petition, Froman argued that forensic firearms
evidence used to support Froman's conviction was unreliable and that his trial counsel were
ineffective for failing to impeach White. The trial court dismissed Grounds 22-28, finding
that res judicata barred Froman's arguments. But the trial court also examined the merits
of Froman's arguments and found them without merit. Froman now argues that the trial
court abused its discretion.
{¶112} On appeal, Froman argues that his trial counsel failed to ask "meaningful"
questions on cross-examination that would have "given the jury reason to question the
validity of White's testimony." Froman argues that the reliability of expert testimony on
ballistics is "questionable" and in support of this argument points to a 2006 report from the
National Academy of Sciences' Committee on Identifying the Needs of the Forensic Science
Community. Froman submitted this report for the first time with his PCR petition. In the
report, the committee made various recommendations for improving the practice of forensic
science. The report argued that trial courts should consider two questions in deciding
whether to admit forensic evidence: (1) the question of the reliability of the relevant scientific
methodology, and (2) the question of the potential for human interpretation tainted by error,
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bias, or "the absence of sound operational procedures and robust performance standards."
{¶113} We begin our analysis with the understanding that "[t]he scope of cross-
examination falls within the ambit of trial strategy, and debatable trial tactics do not establish
ineffective assistance of counsel." State v. Conway, 109 Ohio St. 3d 412, 2006-Ohio-2815,
¶ 101. To fairly judge counsel's performance, we must "indulge a strong presumption that
counsel's conduct falls within the wide range of reasonable professional assistance."
Strickland, 466 U.S. at 689.
{¶114} Likewise, "the failure to call an expert and instead rely on cross-examination
does not constitute ineffective assistance of counsel." State v. Hunter, 131 Ohio St.3d 67,
2011-Ohio-6524, ¶ 66. "[I]t is generally a legitimate trial strategy for defense counsel not to
present expert testimony and instead rely upon cross-examination of a state's expert to
rebut evidence of a crime." State v. Green, 12th Dist. Warren No. CA2017-11-161, 2018-
Ohio-3991, ¶ 43. This is because, in many criminal cases, such a decision by trial counsel
might uncover evidence that further inculpates the defendant. See id.{¶115} We find that Froman's argument that his trial counsel were ineffective in their
cross-examination of White at trial is primarily based on evidence in the trial record. Froman
could have argued this issue in his direct appeal. The trial court therefore properly held that
res judicata barred Froman's Grounds 22-28. Wagers, 2012-Ohio-2258 at ¶ 10; Szefcyk,
77 Ohio St.3d 93 at syllabus.
{¶116} We do not find that Froman's submission with his PCR petition of the 2006
National Academy of Sciences committee report transforms Froman's argument from one
barred by res judicata into one properly presented in postconviction relief. The report is
generic and non-specific to Froman's case. The report does not directly or indirectly
undermine the reliability of White's testimony. We therefore conclude that the report is not
competent, relevant, and material evidence outside the record that would allow Froman to
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overcome the res judicata bar related to his arguments about forensic science. Lawson,
103 Ohio App.3d at 315. And we find that report is not significant and does not advance
Froman's claim beyond a mere hypothesis and a desire for further discovery. Lindsey,
2003-Ohio-811 at ¶ 22.
{¶117} Furthermore, we previously held (in a case in which White testified) that
forensic ballistics is an accepted science in Ohio. State v. Fuell, 12th Dist. Clermont No.
CA2020-02-008, 2021-Ohio-1627, ¶ 50-54. The committee's report merely offers
recommendations for improving the field of forensic science, and nothing in the report
undermines our previous holding in Fuell. Froman does not specify what questions an
effective trial counsel would have asked White to give "the jury reason to question the
validity" of White's testimony. See State v. Green, 12th Dist. Warren No. CA2017-11-161,
2018-Ohio-3991, ¶ 44-45 (rejecting appellant's ineffective assistance argument related to
expert testimony, finding that appellant failed to disclose what an expert would have stated
at trial or how it would have helped the defense).
{¶118} Even if there was merit to Froman's argument about forensic science, Froman
was not prejudiced by White's testimony. White established, as a forensic matter, that
Froman shot Thomas, and yet at trial there was no real dispute that Froman shot Thomas.
Froman told Clark on the phone that he planned to kill Thomas, and later he told Clark that
he had shot Thomas. The responding law enforcement officers personally overheard
Thomas' shooting. White's testimony matching shell casings to Froman's gun was thus
duplicative of other evidence establishing that Froman shot and killed Thomas. Froman
therefore cannot show any reasonable probability of a changed result from a theoretically
more effective cross-examination of White. See Strickland, 466 U.S. at 694.
{¶119} We find no abuse of discretion in the trial court's decision to apply res judicata
to the argument that trial counsel were ineffective as to the cross-examination of Matthew
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White. Froman could have raised this argument in a direct appeal. The new evidence
presented by Froman is not significant and does not set forth sufficient operative facts
establishing substantive grounds for relief. Lindsey, 2003-Ohio-811 at ¶ 22; Blankenburg,
2012-Ohio-6175 at ¶ 9.
{¶120} Having now completed our analysis of all Froman's arguments related to
ineffective assistance of counsel during the guilt phase of his trial, for all these reasons we
find that the trial court did not abuse its discretion in denying Grounds 1-2, 4-13, 22-28, and
44. We overrule Froman's third assignment of error.
D. Claims of an Allegedly Racially Biased Jury (Grounds 14 and 45)
{¶121} Assignment of Error No. 4:
{¶122} THE IMPANELING [sic] OF A RACIALLY BIASED JURY IS STRUCTURAL
ERROR. FROMAN ESTABLISHED THAT HIS JURY WAS COMPRISED OF RACIALLY
BIASED JURORS AND THE TRIAL COURT ABUSED ITS DISCRETION IN FAILING TO
GRANT FROMAN RELIEF ON THESE GROUNDS.
{¶123} Referring to his third assignment of error, Froman argues that the court denied
him a fair trial because racially biased individuals were empaneled on his jury, that this was
structural error, and prejudice must be presumed. For the reasons set forth in our response
to the third assignment of error, res judicata bars Froman's claim that racially biased jurors
convicted him. Froman could and did raise claims related to racially biased jurors in his
direct appeal to the Ohio Supreme Court. Froman, 2020-Ohio-4523, ¶ 53, 58. The supreme
court rejected these claims. For the same reasons discussed in response to the third
assignment of error, the extra-record materials about alleged racial bias that Froman
submitted with his PCR petition are not significant and do not advance Froman's claim
beyond the bar of res judicata. Lindsey, 2003-Ohio-811 at ¶ 22; Myers, 2021-Ohio-631 at
¶ 17. We therefore overrule Froman's fourth assignment of error.
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E. Claims of Ineffective Assistance During the Penalty Phase
(Grounds 3, 16-21, 36-43, 46, and 47)
{¶124} Assignment of Error No. 5:
{¶125} THE TRIAL COURT ABUSED ITS DISCRETION AND DENIED FROMAN
DUE PROCESS, WHEN IT SUMMARILY DISMISSED HIS CLAIMS THAT HIS TRIAL
COUNSEL RENDERED CONSTITUTIONALLY DEFICIENT PERFORMANCE DURING
THE MITIGATION PHASE OF HIS CAPITAL TRIAL, AND IN FAILING TO GRANT RELIEF
ON THE MERITORIOUS INEFFECTIVE ASSISTANCE OF COUNSEL CLAIMS.
{¶126} Assignment of Error No. 5 concerns the penalty phase of the trial and
Froman's claim that his counsel provided ineffective assistance in presenting a mitigation
case. In support of his PCR petition, Froman identified two groups of putative mitigation
witnesses: (1) fourteen lay witnesses, and (2) three putative expert witnesses. We will
address these groups separately.
1. Grounds for Relief Concerning Lay Witnesses
(Grounds 16-21, 36-43, and 47)
{¶127} In his PCR petition, Froman argued in Grounds 16-21, 36-43, and 47 that his
trial counsel provided ineffective assistance in the penalty phase of his trial by failing to
investigate and present certain lay witnesses, including various relatives, friends, co-
workers, and past acquaintances.
{¶128} More specifically, in Grounds 16-21, Froman argued that his trial counsel
provided ineffective assistance for failing to "investigate" and present the following
mitigation witnesses: Harry Lynn, Jr.; Delores Nance; Dawn Attebury; Andrea Jerome;
Doug Van Fleet; Steven Dreher. In Grounds 36-43, Froman argued that his trial counsel
provided ineffective assistance by failing to "fully investigate"8 and present the following
8. Froman never explained why Grounds 16-21 concerned the alleged failure to "investigate" some lay
witnesses, while Grounds 36-43 concerned the failure to "fully investigate" other lay witnesses.
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mitigation witnesses: Alexis Froman; Alissa Jones; Anna Wilson Merriweather; Glenda
Dunbar Dinkins; Dr. Jermaine Ali, M.D.; Kim Froman; Margaret Smith; and Rev. Charles
Dunbar. Froman submitted affidavits signed by all fourteen of these individuals with his
PCR petition. In Ground 47, Froman argued that his trial counsel provided ineffective
assistance by "failure to present compelling mitigation information about Froman's unique
background, health, and the racial dynamics he faced."
{¶129} The trial court granted the state's motion to dismiss these grounds for relief,
finding them barred by res judicata. The trial court also found that the exhibits Froman
submitted in support of his penalty phase arguments did not meet the threshold level of
cogency to avoid the res judicata bar and that there was no substantive merit to Froman's
arguments. Froman argues that the trial court abused its discretion.
{¶130} We agree with Froman that because he relied on affidavits outside the record
in support of Grounds 16-21, 36-43, and 47 in his PCR petition, and because Froman could
not have raised his arguments with respect to those affidavits in his direct appeal, res
judicata did not bar those arguments. See State v. Fry, 9th Dist. Summit No. 26121, 2012-
Ohio-2602, ¶ 38-39 (holding that denial of PCR argument was error because PCR petitioner
relied on affidavit presenting "evidence outside of the record," the petitioner's claim "could
not have been fairly determined on direct appeal"); Lawson at 315. Thus, we agree the trial
court erred to the extent it found that res judicata barred Grounds 16-21, 36-43, and 47.
That said, we need not remand for the trial court to consider the evidence presented as it
relates to this claim because the trial court already determined that the affidavits relied on
by Froman in his PCR petition were not significant, or were only marginally significant, to
his claims. See State v. Ruggles, 12th Dist. No. CA2021-03-023, 2022-Ohio-1804, ¶ 64.
{¶131} We will therefore analyze the merits of Froman's arguments related to
Grounds 16-21, 36-43, and 47. But we will first describe trial counsel's obligations with
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respect to mitigation in a capital case, the information the record reveals about the scope
of trial counsel's investigation into potential mitigation evidence and witnesses, and the
mitigating evidence that counsel offered at trial.
a. Applicable Law: Investigation and Presentation of Mitigation Evidence
{¶132} "In a capital case, '[d]efense counsel has a duty to investigate the
circumstances of his client's case and explore all matters relevant to the merits of the case
and the penalty, including the defendant's background, education, employment record,
mental and emotional stability, and family relationships.'" Myers, 2021-Ohio-631 at ¶ 134,
quoting, State v. Pickens, 141 Ohio St.3d 462, 2014-Ohio-5445, ¶ 219. "Defense counsel
has a duty to make reasonable investigations or to make a reasonable decision that makes
particular investigations unnecessary." Id., citing State v. Johnson, 24 Ohio St. 3d 87, 89
(1986). Counsel's mitigation investigation should include efforts to discover all reasonably
available mitigating evidence and evidence to rebut any aggravating evidence. Id., citing
Wiggins at 524.
{¶133} "Given the severity of the potential sentence and the reality that the life of a
capital defendant is at stake, it is only after a full investigation of all the mitigating
circumstances that counsel can make an informed, tactical decision about which
information would be most helpful to the client's case." Id. citing State v. Johnson, 24 Ohio
St.3d 87, 90 (1986). "'Strategic choices made after thorough investigation of law and facts
relevant to plausible options are virtually unchallengeable[.]'" Id. quoting O'Hara v.
Wigginton, 24 F.3d 823, 828 (6th Cir.1994). "'However, a failure to investigate, especially
as to key evidence, must be supported by a reasoned and deliberate determination that
investigation was not warranted.'" Id. "An attorney's failure to reasonably investigate the
defendant's background and present mitigating evidence to the jury at sentencing can
constitute ineffective assistance of counsel." Pickens at ¶ 219.
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{¶134} That said, the law is well settled that counsel's strategic decisions related to
mitigation do not constitute ineffective assistance of counsel. State v. Dean, 146 Ohio St.3d
106, 2015-Ohio-4347, ¶ 288. "The decision to forgo the presentation of additional mitigating
evidence does not itself constitute proof of ineffective assistance of counsel." State v. Keith,
79 Ohio St.3d 514, 536 (1997). Moreover, "'[a]ttorneys need not pursue every conceivable
avenue; they are entitled to be selective.'" State v. Murphy, 91 Ohio St.3d 516, 542 (2001),
quoting United States v. Davenport, 986 F.2d 1047, 1049 (7th Cir.1993). "[A] petition for
postconviction relief does not provide the defendant with a second opportunity to litigate his
conviction, nor does the submission of a new expert opinion containing a theory of mitigation
different from the one presented at trial show ineffective assistance of counsel." State v.
Murphy, 10th Dist. Franklin No. 00AP-233, 2000 WL 1877526, *5 (Dec. 26, 2000).
b. Froman's Trial Counsel's Investigation and Presentation of Mitigation Evidence
{¶135} Froman did not submit with his PCR petition any affidavits signed by his trial
counsel explaining the steps they took or did not take to investigate potential mitigating
evidence. See generally Myers, 2021-Ohio-631 at ¶ 137 (explaining that PCR petitioner
submitted affidavit of trial counsel admitting steps counsel did not take in mitigation
investigation). This is not to say that we know nothing about the scope of Froman's trial
counsel's investigation. On the contrary, the trial record reveals much about the steps that
Froman's trial counsel took to investigate potential mitigating evidence. For example, the
record shows that Froman's trial counsel retained a mitigation specialist to assist them at
trial, that Froman had three experts appointed to him at various stages of the case, and that
trial counsel had access to Froman's medical, school, and jail records. Furthermore,
Froman's counsel engaged in at least some investigation of witnesses who could provide
information about Froman's history, character, and background; we know this because trial
counsel identified several such witnesses. The trial court also found in its decision that
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Froman's counsel were in contact with the mitigation specialist in Froman's separate capital
prosecution case in Kentucky for Eli's murder. And as we will discuss below, the trial record
and affidavits submitted with the PCR petition reflect that trial counsel interviewed Froman's
two daughters and his mother as to potential mitigating evidence.
{¶136} During the penalty phase of the trial, Froman's trial counsel called and elicited
testimony from Froman's daughter and a clinical psychologist. Trial counsel also permitted
Froman to read an unsworn statement to the jury. We will summarize what each had to
say.
{¶137} First, Alexis Froman, who is Froman's younger daughter, testified about the
positive experiences she had with her father while growing up. She testified that she loves
him and that he was a "big part" of her life. She also testified that Froman was a good
worker. She said that before September 12, 2014, her father had become more distant and
sometimes he would lose his "train of thought." Alexis directly addressed her Father's
murders of Thomas and Eli, stating that what her father did that day was not the father she
knew. Alexis asked the jury to spare her father from death because he was a positive
person in her life, and she needed him around for "motivation" and "encouragement."
{¶138} Second, expert witness Dr. Nancy Schmidtgoessling, a clinical psychologist,
testified that she had interviewed Froman for around seven hours over two days. She
questioned Froman to learn more about his background, including where he grew up, what
he did in his life, his family, his schooling, his work experiences, and his psychological
functioning. She recounted Froman's answers for the jury.
{¶139} Dr. Schmidtgoessling reported that Froman told her that his mother raised him
and that he had five siblings. As a child, he was not close to anyone. He felt his mother
was too strict; she hit him and called him names. His father "really wasn't that available."
{¶140} Early in his life, Froman learned to stay to himself emotionally. His IQ, 86,
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was below average, but he completed high school, and his IQ was sufficient to allow him to
manage his life. Froman had multiple jobs and loved to work. He mainly worked jobs in
the restaurant industry.
{¶141} Dr. Schmidtgoessling explained that along with asking Froman questions
about his life, she conducted two tests. The first, a "personality assessment inventory"
(PAI), surveyed a wide variety of disorders. The PAI test showed that Froman had
symptoms of depression. The second test, the "OMNI" test, measures personality. The
OMNI test revealed that Froman was a person who tends to be unhappy and pessimistic.
{¶142} Dr. Schmidtgoessling testified that Froman's depression did not rise to the
level of impairing his ability to function. However, she concluded that when an episode of
major depression superimposed itself upon his underlying depression, such an event would
impact his ability to function.
{¶143} Froman reported to Dr. Schmidtgoessling that he and Thomas had been
together around four years at the time of her murder. He told Dr. Schmidtgoessling that his
relationship with Thomas was "very special" to him and that Thomas was "perfect." They
had talked about marriage and having a child. Froman told Dr. Schmidtgoessling that he
believed that Thomas was seeing other men. He claimed to have found evidence on
Thomas' phone that she was communicating with other men about sexual matters. Froman
also told Dr. Schmidtgoessling that Thomas' failure to account for money he gave to her
angered him.
{¶144} Dr. Schmidtgoessling opined that Froman was suffering from a moderate
underlying depression in 2014 but that a major depressive disorder occurred from two
stressors in his life before the murders: the loss of his relationship with Thomas, and the
loss of his employment. Dr. Schmidtgoessling further opined that due to Froman's
emotional detachment, such stressors affected him more than they would have a different
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person.
{¶145} Third, while he did not testify, Froman read an unsworn statement during the
penalty hearing. In it, he repeatedly apologized and took the blame for what he did, stating,
"I totally accept responsibility for what happened on September 12, 2014." He also stated
that "everything that happened was my fault." But he also blamed Thomas for taking his
money and not being "nice" to him and said that he found out that she was sending "naked
pictures" of herself to other men, which made him sick and unhappy.
{¶146} Having reviewed the mitigation evidence submitted or elicited by Froman's
trial counsel, we conclude that the state accurately summarized Froman's trial counsel's
mitigation strategy as follows:
* * * [Froman's trial counsel's] strategy in the sentencing phase
was to emphasize Froman's good qualities. Through the
testimony they elicited, they tried to portray Froman as:
• A good father and son, whom his daughter and his
mother needed in their life, both mentally and financially;
• A hard worker, who had tried to rise above his low IQ and
mental shortcomings;
• A person who accepted responsibility and had great
remorse for what he had done; and
• A person who was typically strong but who, at the time of
the murders, was struggling mentally and emotionally because
of the loss of employment and the loss of his relationship with
Ms. Thomas.
c. Analysis of Alleged Failure to Investigate Lay Witnesses
{¶147} As described above, Froman's trial counsel did undertake an investigation of
potential mitigation evidence. Froman's argument related to Grounds 16-21, 36-43, and 47
is not that his trial counsel completely failed to investigate mitigation evidence, but that he
failed to investigate as to the fourteen lay witnesses identified by Froman in his PCR
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petition. Froman refers to his trial counsel's investigation of potential lay witnesses as
"unreasonably truncated."
{¶148} But the affidavits that Froman submitted with his PCR petition do not show
that trial counsel's investigation was "unreasonably truncated." In her affidavit, Alexis states
that "I testified at trial but the attorneys never asked me about most of the information here
[in her affidavit]. They only asked me very basic questions, which I answered. I would have
told them all of this had they shown any real interest in what I had to say." It is unclear from
this statement whether Alexis contends that Froman's trial counsel failed to ask her about
the topics covered in her affidavit at trial or failed to ask her about those topics when they
spoke to her before trial. But even if we assume that she meant that trial counsel "only
asked me very basic questions" before trial and failed to "show any real interest in what I
had to say" before trial, Alexis leaves the question of what trial counsel did and did not ask
her to the imagination.
{¶149} Next, Alissa Jones, who is Froman's older daughter, states in her affidavit that
"I spoke to one of my dad's lawyers, a woman, years ago, about testifying at my dad's trial."
She states that she told the lawyer that she was "worried about testifying in a way that would
hurt my dad because I love him," and that the attorney never followed up with her about
testifying. Alissa, like Alexis, does not describe the scope or content of Froman's trial
counsel's questioning about the topics raised in her affidavit.
{¶150} The same is true with Kim Froman. Kim states in her affidavit that "I talked to
[Froman's] lawyers at a deposition before his sentencing hearing in Ohio." She complains
that they did not ask "a lot of specific questions about my life or [Froman]," but she admits
that she "remember[s] that they said they would try to help me get up to Ohio for [Froman's]
case because I didn't have a lot of money or a good car." Either trial counsel helped Kim
travel to Ohio or Kim found her own way to travel to Ohio, because Kim also states that she
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came to Ohio for "one night of the trial." Kim complains that Froman's counsel "never asked
me to testify" after she arrived in Ohio. While Kim states her opinion that trial counsel did
not ask "a lot of specific questions about my life or [Froman]," she does not provide any
details about the scope or content of trial counsel's questioning.9
{¶151} The remaining eleven lay witnesses proposed by Froman—that is, Harry
Lynn, Jr.; Delores Nance; Dawn Attebury; Andrea Jerome; Doug Van Fleet; Steven Dreher;
Anna Wilson Merriweather; Glenda Dunbar Dinkins; Dr. Jermaine Ali, M.D.; Margaret Smith;
and Rev. Charles Dunbar—all state in their affidavits that Froman's trial counsel did not
contact them before trial or state nothing about contact with trial counsel. But Froman has
provided no affidavits explaining whether Froman's counsel may have learned of those
witnesses and the knowledge they may have possessed by other means. The mere fact
that trial counsel did not question a potential lay witness is insufficient to prove that trial
counsel did not satisfy trial counsel's obligation to investigate.
{¶152} We explained above that "[i]n a capital case, '[d]efense counsel has a duty to
investigate the circumstances of his client's case and explore all matters relevant to the
merits of the case and the penalty, including the defendant's background, education,
employment record, mental and emotional stability, and family relationships.'" Myers, 2021-
Ohio-631 at ¶ 134, quoting Pickens, 2014-Ohio-5445 at ¶ 219. This duty does not require
that trial counsel interview every individual who may have knowledge of the "defendant's
background, education, employment record, mental and emotional stability, and family
relationships." A requirement that trial counsel interview every such individual could never
be satisfied. As an example, if the law required trial counsel to interview every individual
9. While we recognize that Froman's argument is that trial counsel's mitigation investigation is "truncated," we
still emphasize that each of Alexis, Alissa, and Kim's affidavits show that trial counsel did investigate all three
women as potential mitigation witnesses. The affidavits simply do not describe the extent of this investigation.
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with knowledge of a capital defendant's "employment record," counsel would be required to
interview every manager, every coworker, and potentially every client and customer who
ever worked with the defendant at any of the defendant's previous places of employment.
The unreasonableness of such a requirement is apparent. Therefore, the law requires,
instead, that trial counsel meet the less specific, more general obligation of "investigat[ing]
the circumstances of his client's case and explor[ing] all matters relevant to the merits of
the case and the penalty* * *." Id. "In a petition for post-conviction relief, which asserts the
ineffective assistance of counsel, the petitioner bears the initial burden to submit evidentiary
documents containing sufficient operative facts to demonstrate the lack of competent
counsel and that the defense was prejudiced by counsel's ineffectiveness." Jackson, 64
Ohio St. 2d 107, at syllabus. Froman did not meet his burden as to the remaining eleven
lay witnesses.
{¶153} Because the record, as supplemented by the affidavits attached to Froman's
PCR petition, is unclear on the scope of questioning and preparation that trial counsel
engaged in with the fourteen lay witnesses at issue, we cannot find a failure to investigate
as to those lay witnesses. See Thompson, 2014-Ohio-4751 at ¶ 247 ("[w]here the record
on appeal does not indicate the extent of counsel's pretrial investigation, an appellate court
will not infer a defense failure to investigate from a silent record").10
d. Analysis of Alleged Failure to Present Mitigation Evidence
{¶154} Froman also argues that his trial counsel were ineffective during the penalty
phase in failing to present the testimony of the fourteen lay witnesses identified above.
Froman points to the content of the fourteen witnesses' affidavits in support of his argument.
10. Though unnecessary to our analysis, we note that the testimony offered by Alexis and Dr.
Schmidtgoessling addressed aspects of Froman's background, education, employment record, mental and
emotional stability, and family relationships—all topics that trial counsel had an obligation to investigate.
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{¶155} For purposes of demonstrating ineffective assistance, the Ohio Supreme
Court has advised that a petitioner must establish operative facts of deficient performance
and prejudice. State v. Kapper, 5 Ohio St.3d 36, 38 (1983). To establish deficient
performance, Froman's petition must include evidentiary documents containing sufficient
operative facts to demonstrate the lack of competent counsel. Jackson, 64 Ohio St.2d 107at syllabus. To establish prejudice, Froman must support his petition with sufficient
operative facts to demonstrate a reasonable probability that the new mitigation evidence
would have swayed the jury to impose a life sentence. Keith, 79 Ohio St.3d at 536.
i. Analysis of Deficient Performance
{¶156} During her penalty phase testimony, trial counsel elicited testimony from
Alexis Froman that supported trial counsel's strategy of depicting Froman as a good father
and son, whom his daughter needed in her life. Her testimony also supported trial counsel's
strategy of depicting Froman as a hard worker who had been acting differently in the time
leading up to the murders. Alexis emphasized that Froman's behavior deviated from his
past behavior, further supporting trial counsel's strategy. In Alexis' affidavit submitted with
Froman's PCR petition, Alexis fleshes out and expands on her trial testimony by saying
more about mental health and substance abuse issues in her family, mentally and physically
abusive behavior by Froman's mother and other family members, as well as her own mental
health issues. She discusses positive aspects of her father and states that Froman liked to
work, and always had a job. She explains that Froman struggled to find work after he won
a lawsuit against his former employer. She also states that her father loved Thomas very
much and that she felt like Froman, Thomas, Alexis, Eli, and Thomas' other son formed a
family. In other words, Alexis' affidavit both deepens her previous trial testimony and adds
testimony that supports Froman's new mitigation theories asserted in his PCR petition.
{¶157} We have also closely reviewed the remaining thirteen lay witness affidavits
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submitted with Froman's petition. The subjects covered include Froman's childhood and
adolescence, Froman's family, Froman's mother's alleged abuse of him, Froman's mental
health, substance abuse in Froman's family, and instances of racism experienced by
Froman or generally experienced by Black people in the area where Froman grew up.
{¶158} In other words, the fourteen witnesses' affidavits all contain content intended
to either expand on trial counsel's mitigation strategy or to support new mitigation strategies
asserted by Froman in his PCR petition, such as emphasizing the effects of a bad childhood
and racism on Froman's life. But "[i]t is well established that a 'defense decision to call or
not call a mitigation witness is a matter of trial strategy * * * Debatable trial tactics generally
do not constitute ineffective assistance of counsel.'" Myers, 2021-Ohio-631 at ¶ 125,
quoting State v. Graham, 164 Ohio St.3d 187, 2020-Ohio-6700, ¶ 19.
{¶159} While the lay witness affidavits may paint a more complete picture of Froman
as a person, the content of those affidavits is not significant in terms of mitigating Froman's
conduct. That Froman faced racism at times during his life is of course condemnable. It is
also unfortunate that Froman came from a dysfunctional family. But there is no evidence
that these issues in Froman's past had anything to do with or mitigated Thomas' aggravated
murder.
{¶160} Additionally, if defense counsel chose not to present the jurors with evidence
about racism or Froman's dysfunctional family, then such a decision would be within the
ambit of reasonable trial strategy. Keith, 79 Ohio St.3d at 530, quoting State v. Johnson,
24 Ohio St.3d 87, 91 (1986) ("It is conceivable that the omission of such evidence in an
appropriate case could be in response to the demands of the accused or the result of a
tactical, informed decision by counsel, completely consonant with his duties to represent
the accused effectively"). Counsel could have determined that a strategy that emphasized
these issues might appear to jurors like trying to shift blame away from Froman for Thomas'
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brutal slaying. In sum, the affidavits submitted by Froman do not provide sufficient operative
facts to demonstrate the lack of competent counsel. Jackson, 64 Ohio St.2d 107 at
syllabus.
ii. Analysis of Prejudice
{¶161} In addition, even if Froman had demonstrated deficient performance by his
trial counsel during the penalty phase of his trial, we do not find that Froman has
demonstrated prejudice.
{¶162} The jury found Froman guilty of two aggravating factors that permitted
imposing the death penalty. The first aggravating factor was that Thomas' murder was part
of a course of conduct that involved the purposeful killing of two or more people. R.C.
2929.04(A)(5). The second aggravating factor was that Froman murdered Thomas while
he was committing a kidnapping offense. R.C. 2929.04(A)(7).
{¶163} Evidence at trial support these factors. Froman, armed with a gun, entered
Thomas' home at around 5:00 a.m. He went into Thomas' bedroom and forced her out of
bed. Thomas started screaming for her son. Eli, dressed only in boxer shorts, woke, and
came to help his mother. Froman shot Eli in the abdomen, the arm, and the back of the
head. After killing her son in front of her, Froman forced Thomas out of the home and into
his vehicle.
{¶164} Froman then drove away with Thomas as his hostage. The evidence showed
that at some time during the kidnapping, Froman severely beat Thomas. She suffered blunt
force trauma to her torso, inner thighs, and extremities, a laceration on her upper lip, three
lacerations on the top of her head, and abrasions on her forehead and right cheek. She
had a broken jaw and one of her lower teeth had been knocked out. She had defensive
wounds, including chipped nails and a nail ripped off.
{¶165} The evidence showed that Froman stopped at a gas station sometime during
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the kidnapping. On video security footage, Froman gets out of his vehicle and walks into
the gas station. It was daytime and the gas station was full of people. Thomas, completely
nude, exited the vehicle and began to run away. However, Froman saw her, rushed outside,
grabbed her by her hair, and then dragged her back to the vehicle. He threw her into the
backseat and drove away.
{¶166} While Froman was driving on the highway, he discussed what he had done
with his friend, David Clark. Clark tried to convince him to give up and allow Thomas to
live. But Froman was resolute that he planned to kill Thomas. Eventually, he did so by
shooting her four times, once in the stomach, once in the breast, once in her upper chest,
and then once, like her son, in the back of her head.
{¶167} Froman did not kill Thomas because he was suffering from mental illness.
Froman did not kill Thomas because of his dysfunctional family or an abusive mother.
Froman did not kill Thomas because of incidents of racism he endured. Froman killed
Thomas because he was angry that she broke up with him and he killed Eli because Eli got
in his way.
{¶168} In fact, there was evidence at trial that Froman began engaging in stalking-
type behavior the day after Thomas ended their relationship. He appeared at Thomas'
workplace and told Thomas' boss that "Kim has made me lose everything, now I will make
her lose everything no matter the cost." He kept that promise. The aggravating evidence
here far outweighs any evidence Froman submitted with his PCR petition.
{¶169} For the foregoing reasons, we do not find that there exists a reasonable
probability that a juror would have recommended a life sentence had Froman's counsel
presented the testimony of the lay witnesses newly identified in Froman's PCR petition.
Keith, 79 Ohio St.3d at 536. The trial court did not abuse its discretion in granting the state's
motion to dismiss as to Grounds 16-21, 36-43, and 47. Blankenburg at ¶ 9 ("The decision
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to grant or deny an evidentiary hearing [for a PCR petition] is left to the sound discretion of
the trial court").
2. Grounds for Relief Concerning Putative Expert Witnesses (Grounds 3 and 46)
{¶170} In Ground 3, Froman argued that his trial counsel provided ineffective
assistance "for failing to investigate and present expert pharmacological testimony" in the
penalty phase. In Ground 46, Froman argued that his trial counsel provided ineffective
assistance by "failure to present compelling psychological testimony." In support of his
arguments in these grounds for relief Froman submitted the putative expert reports of
Celeste Henery, Ph.D. and Daniel Grant, Ed.D, as well as the previously discussed report
of Dr. Stevens. Because we have already summarized Dr. Stevens' report, we will only
summarize Dr. Henery's report and Dr. Grant's report here.
{¶171} Dr. Henery's putative expert report says that she is a cultural anthropologist.
She met with and interviewed Froman for five and one-half hours. She also reviewed the
lay person affidavits described above. In Dr. Henery's opinion, Froman spent his life
minimizing the ramifications of a volatile childhood. Dr. Henery believes that Froman,
because of an inability to communicate, relied on self-sufficiency and a job to overcome
stereotypes and maintain a stable economic life. She believes that Froman sought out
interracial romantic relationships and that his struggles in those relationships were his
greatest challenge. His emotional decline, most pronounced in the summer of 2014,
suggests to Dr. Henery that Froman was under tremendous pressure due to unemployment,
homelessness, failing health, and emotional alienation. Dr. Henery believes that Froman's
issues at that time were "cross-cut" by racial dynamics. Dr. Henery further reports that
Froman did not have the understanding to seek professional help.
{¶172} Dr. Grant's putative expert report says that he is a neuropsychologist and that
he met with Froman in prison. Froman told Dr. Grant that his mother hit him and would call
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him names like "dumb" and make other negative comments about him. Dr. Grant opines
that Froman has difficulty using language to solve problems. Dr. Grant also opines that
abuse by Froman's mother during Froman's childhood was a factor in shaping his
relationships and that the same abuse contributed to episodic outbursts and difficulty
controlling his temper. Dr. Grant states that Froman maintained a low level of depression
throughout his life and that when Froman experienced distress, self-doubts, and rejection,
his depression would likely spike to the level of a major depressive disorder. Dr. Grant
suggests that Froman's depression may have "spiked" to a "major depressive disorder" that
contributed to his killing Thomas. Referring to Dr. Stevens' report on Froman's use of
testosterone, Dr. Grant also opines that it was "possible" that testosterone injections
contributed to Froman's loss of control "in the rapidly evolving, emotionally charged situation
with the victim [that is, Thomas]."
{¶173} In Myers, 2021-Ohio-631, we reversed a trial court's denial of a PCR petition
and ordered the trial court to conduct an evidentiary hearing on claims of ineffective
assistance of counsel concerning the failure to present expert testimony during the
mitigation stage of a capital case. Id. at ¶ 148. There, Myers, who was nineteen years old
when he committed a murder, claimed his counsel were ineffective for failing to present any
expert testimony, and specifically for failing to present expert testimony relating to (1)
adolescent brain development, (2) that he suffered from bipolar disorder causing increased
impulsivity, and (3) that he was not fully neurologically developed at the time of the offense.
Id. at ¶ 132, 135, 136. Myers included the affidavit of his lead counsel, who stated, "I did
not consider requesting funding for, or hiring, a youth/adolescent expert to help explain
issues, including youth/adolescent brain development, to the jury." Id. at ¶ 137.
Furthermore, the lead counsel claimed that he had retained a psychologist for mitigation,
but that she had informed him that her testimony would not be helpful and would be
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cumulative to other testimony. Id.
{¶174} But the psychologist contradicted lead counsel's assertion. In an affidavit, she
asserted that she provided Myers' lead counsel with a report that included her opinion about
the effects of Myer's age as a strong mitigating factor and that she was prepared to testify
to this at trial. Id. at ¶ 138. This court found that the lead counsel's assertion that he did
not consider hiring a youth/adolescent expert indicated that his decision was not an
informed tactical decision. Id. at ¶ 142. We thus held that Myers had set forth sufficient
operative facts to warrant an evidentiary hearing on his PCR petition. Id. at ¶ 140.
{¶175} Froman's case is distinguishable from Myers. First, there was no expert
mitigation testimony presented in Myers, while here, Dr. Schmidtgoessling presented her
opinion about the mitigating effects of a major depressive disorder that Froman underwent
at the time of the offense. Second, the mitigating factor of youth and the neurological effects
of not having a fully developed brain appear to be stronger factors in mitigation than the
proposed expert testimonies of Dr. Henery, Dr. Grant, and Dr. Stevens. As compared to
adults, juveniles lack maturity, have a less developed sense of responsibility, are more
vulnerable to negative influences, and their characters are not well formed. See Graham
v. Florida, 560 U.S. 48, 68, 130 S.Ct. 2011 (2010). Juveniles are also more capable of
change than are adults, and their actions are less likely to be evidence of "irretrievably
depraved character" than are the actions of adults. Graham at 68, quoting Roper at 570.
{¶176} The report of Dr. Henery sets forth sociological or cultural mitigation
information, but courts have rejected claims that failure to use this type of evidence
constitutes ineffective assistance. State v. Murphy, 10th Dist. Franklin No. 00AP-233, 2000
WL 1877526, *6 (Dec. 26, 2000) ("[e]ncouraging jurors to decide a defendant's sentence
based on conclusions about groups of people, delineated by race or ethnicity, is [an]
anathema to individualized sentencing. Sentencing in capital cases should be about the
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crime and the individual characteristics of the defendant"). Accord State v. McKnight, 4th
Dist. Vinton No. 07CA665, 2008-Ohio-2435, at ¶ 101-103; State v. Issa, 1st Dist. Hamilton
No. C-000793, 2001 WL 1635592, at *4. In addition, Dr. Henery's report simply does not
meaningfully mitigate Froman's actions on September 12, 2014. Dr. Henery suggests that
it is important to understand Froman's dysfunctional life to put into "context" what he did on
September 12, 2014. However, Froman's background is ultimately irrelevant here because,
as stated above, the evidence was clear that Froman killed Thomas due to anger – not
because of a poor upbringing or because he was a Black man who suffered racism. Dr.
Henery's report does not set forth sufficient operative facts to establish substantive grounds
for relief. Blankenburg, 2012-Ohio-6175 at ¶ 9.
{¶177} Dr. Grant's report goes into detail about Froman's background and opines that
depression could have contributed to Froman's actions when he killed Thomas. But there
is nothing in Dr. Grant's reports that suggests that immaturity or a less-than-developed brain
mitigated Froman's actions. Rather, as is clear from the evidence, Froman's actions
appeared well-planned and fueled by anger and rage. Dr. Grant's report is speculative as
to the causes that contributed to Froman's actions on September 12, 2014. Dr. Grant's
report does not set forth sufficient operative facts in support of Froman's petition. Id.{¶178} Regarding testosterone, Dr. Grant's report references Dr. Stevens' report and
suggests that testosterone "could" have contributed to Froman's actions that day. In this
regard, Froman contends that his trial counsel was ineffective for failing to retain Dr.
Stevens to consult with Dr. Schmidtgoessling and provide her with information to "better
assist the jury in understanding her findings." Froman refers to Dr. Schmidtgoessling's
testimony that Froman was suffering from depression and stressors. Froman contends that
Dr. Steven's opinion concerning testosterone would have strengthened the mitigating value
of Dr. Schmidtgoessling's testimony concerning Froman's depression because she based
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it on only "very generic background information" that she "gathered from Froman himself."
{¶179} Froman contends that Dr. Schmidtgoessling "would have been able to use Dr.
Stevens' expert knowledge concerning testosterone to better assist her in explaining to the
jury that testosterone injections alter brain function" and cause "severe psychological
manifestations," including depression. Quoting Dr. Stevens' report, Froman further
contends that Dr. Schmidtgoessling "could have explained how testosterone can cause
'serious psychiatric manifestations, including major depression, mania, paranoia,
psychosis, delusions, hallucinations, hostility, and aggression.'"
{¶180} Froman's argument here concerning what would have happened in mitigation
had Dr. Stevens consulted with Dr. Schmidtgoessling is wholly speculative. Froman
submits no "cogent" evidence suggesting that Dr. Schmidtgoessling would have testified in
a different manner had she consulted with Dr. Stevens. See Statzer, 2018-Ohio-363 at ¶
16. Instead, his argument simply presumes that Dr. Schmidtgoessling would have repeated
all the information contained in Dr. Stevens' report. Froman further assumes that if his
counsel provided the jury with information about the effects of testosterone, it would have
accepted that testosterone contributed to what occurred or that it in some way mitigated
Froman's conduct. But Froman's argument here is just that, argument. The hypothesis that
Dr. Schmidtgoessling may have testified about the effects of testosterone had she
consulted with Dr. Stevens, and that the jury may have found Dr. Schmidtgoessling's
testimony more impactful, does not constitute an "operative fact" demonstrating Froman's
entitlement to relief in PCR proceedings. See Blankenburg at ¶ 9.
{¶181} Additionally, we note that Froman has never submitted any evidence in
support of his PCR petition that indicates that he in fact acted under the influence of
testosterone. As discussed in greater detail in response to Froman's third assignment of
error, Froman presented no evidence that his actions that day were the result of a "roid
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rage." Instead, the evidence indicates that Froman's actions were the result of planning
and consideration. Moreover, the PCR petition record reflects that defense counsel were
aware of the testosterone issue, having been advised of such by Froman's prior capital
counsel. Given the nature of this case and the lack of evidence that Froman acted under
the influence of testosterone (or any other substance), that counsel chose not to present a
mitigation defense based on expert pharmacological testimony is well within the ambit of
trial strategy. Keith, 79 Ohio St.3d at 530.
{¶182} For all these reasons, we find that Froman has not set forth sufficient operative
facts showing his entitlement to substantive relief with respect to attorney performance
during the penalty stage of trial. Blankenburg at ¶ 9. Therefore, we find that the trial court
did not abuse its discretion in dismissing Grounds 3 and 46. Id. We overrule Froman's fifth
assignment of error.
F. Claims Challenging the Constitutionality of Lethal Injection (Ground 32)
{¶183} Assignment of Error No. 6
{¶184} THE TRIAL COURT ABUSED ITS DISCRETION IN DENYING FROMAN
RELIEF ON THE GROUNDS THAT LETHAL INJECTION AS ADMINISTERED IN THE
STATE OF OHIO VIOLATES THE UNITED STATES AND OHIO CONSTITUTIONS. U.S.
CONST. AMENDS. I, VII, IX, XIV, § § 1, 5, 10, and 16, ARTICLE I OF THE OHIO
COSNTITUTION.
{¶185} Froman argues that the death penalty, administered through lethal injection,
violates the federal and state constitutional prohibitions against cruel and unusual
punishment. Citing a doctor's affidavit written in 2008, Froman argues that the lethal
injection protocol adopted by the state in 2016 could cause pain or an inability to monitor
whether he is conscious during the lethal injection procedure.
{¶186} We agree with the trial court that res judicata bars Froman's claim because
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he could have raised it in his direct appeal. Myers, 2021-Ohio-631 at ¶ 63 (holding that res
judicata barred constitutional challenges to the death penalty in a postconviction relief case
because the petitioner could have raised such challenges on direct appeal). In fact, the
record reflects that Froman did argue the unconstitutionality of lethal injection in the
fourteenth proposition of law of his brief on direct appeal to the Ohio Supreme Court. The
Ohio Supreme Court overruled that proposition of law summarily. Froman, 2020-Ohio-4523at ¶ 159.11 We may not reconsider Froman's already-rejected argument.
{¶187} The materials submitted in conjunction with Froman's argument about lethal
injection are not significant and do not advance Froman's claims beyond the bar of res
judicata. Lindsey, 2003-Ohio-811 at ¶ 22. The trial court did not abuse its discretion when
it dismissed Ground 32 because Froman has failed to demonstrate substantive grounds for
relief with respect to lethal injection. Blankenburg, 2012-Ohio-6175 at ¶ 9. We overrule
Froman's sixth assignment of error.
G. Claims Challenging the Constitutionality of the Death Penalty (Grounds 29-31)
{¶188} Assignment of Error No. 7:
{¶189} THE TRIAL COURT ERRED, AND DENIED FROMAN DUE PROCESS AND
AN ADEQUATE CORRECTION PROCESS WHEN IT FOUND PROCEDURALLY
BARRED FROMAN'S CLAIMS CHALLENGING IN MULTIPLE RESPECTS THE
CONSTITUTIONALITY OF OHIO'S DEATH PENALTY STATUTE AND SYSTEMS
(GROUNDS 29-31), AND IN SUMMARILY DISMISSING SUCH CLAIMS UNDER R.C.
2953.21 WITHOUT ALLOWING DISCOVERY OR AN EVIDENTIARY HEARING AND IN
FAILING TO GRANT RELIEF.
11. We note that the Ohio Supreme Court has repeatedly affirmed the constitutionality of lethal injection as a
method of administering the death penalty. State v. Kirkland, 140 Ohio St.3d 73, 2014-Ohio-1966, ¶ 118;
State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, ¶ 131; State v. Carter, 89 Ohio St.3d 593, 608 (2000).
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{¶190} Froman argues that the death penalty is unconstitutional because it is (1)
incompatible with modern standards of decency, (2) per se unconstitutional due to
unreliability, arbitrariness, and long delays, and (3) per se unconstitutional because it allows
for "invidious racial disparities in capital indictment practices." Froman acknowledges that
the Ohio Supreme Court has previously rejected these arguments but asserts them here to
preserve his ability to present them in federal proceedings.
{¶191} Res judicata again bars Froman's claims here because he could has raised
such claims in his direct appeal. Myers, 2021-Ohio-631 at ¶ 63. Furthermore, the Ohio
Supreme Court has previously rejected these arguments. State v. Mammone, 139 Ohio
St.3d 467, 2014-Ohio-1942, ¶ 184 (noting that the court has held that Ohio does not impose
its death-penalty scheme in an arbitrary and racially discriminatory manner and the scheme
is neither unconstitutionally vague nor arbitrary and capricious).
{¶192} The petition materials submitted in conjunction with this argument are not
significant and do not advance Froman's claims beyond the bar of res judicata. Lindsey,
2003-Ohio-811 at ¶ 22. The trial court did not abuse its discretion when it dismissed
Grounds 29, 30, and 31 because Froman has failed to show substantive grounds for relief
with respect to his arguments about the death penalty. Blankenburg, 2012-Ohio-6175 at ¶
9. We overrule Froman's seventh assignment of error.
H. Claims Challenging the Postconviction Relief System (Ground 33)
{¶193} Assignment of Error No. 8:
{¶194} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
FROMAN RELIEF WITHOUT AFFORDING HIM THE NECESSARY DUE PROCESS TO
MEET HIS BURDEN.
{¶195} Froman argues that Ohio's postconviction relief system denies him his due
process rights because it is not "simple" or "easily invoked," and because it does not permit
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meaningful review due to a court's ability to dismiss arguments through doctrines such as
res judicata, waiver, and forfeiture. Froman also argues that Crim.R. 35(A), which sets forth
a three-page limitation on each ground for relief in a postconviction relief petition, deprived
him of the ability to present a complete argument.
{¶196} Froman's complaints about the postconviction relief system and Crim.R. 35
lack merit. Regarding Crim.R. 35, R.C. 2953.21(A)(6) specifies that there is no page limit
on a postconviction relief petition in a death penalty case, "notwithstanding any law or court
rule to the contrary." This provision stemmed from an amendment to the statute effective
April 2017. Froman filed his original petition in October 2018. Thus, if Froman limited his
petition to three pages per ground for relief, he simply did not avail himself of R.C.
2953.21(A)(6).
{¶197} As for Froman's challenges to the postconviction relief system, we have
repeatedly held that the system provides an adequate corrective process. State v. Lawson,
12th Dist. Clermont No. CA2013-12-093, 2014-Ohio-3554, ¶ 43; State v. Davis, 12th Dist.
Butler No. CA2012-12-258, 2013-Ohio-3878, ¶ 34; Lindsey, 2003-Ohio-811 at ¶ 13. Other
districts have held the same. See State v. Trimble, 11th Dist. Portage No. 2007-P-0098,
2008-Ohio-6409, ¶ 108; State v. Frazier, 6th Dist. Lucas No. L-07-1388, 2008-Ohio-5027,
¶ 70; State v. Elmore, 5th Dist. Licking No. 2005-CA-32, 2005-Ohio-5940, ¶ 143-149; State
v. Hessler, 10th Dist. Franklin No. 01AP-1011, 2002-Ohio-3321, ¶ 85. We find no reason
to reconsider our precedent on this issue. Froman has failed to demonstrate substantive
grounds for relief with respect to his arguments about the postconviction relief system and
the trial court did not abuse its discretion in dismissing Ground 33. Blankenburg, 2012-
Ohio-6175 at ¶ 9. We overrule Froman's eighth assignment of error.
I. Cumulative Error Doctrine (Grounds 34 and 35)
{¶198} Assignment of Error No. 9:
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{¶199} THE TRIAL COURT ABUSED ITS DISCRETION WHEN IT DENIED
FROMAN FACTUAL DEVELOPMENT AND RELIEF ON THE THIRTY-FOURTH AND
THIRTY-FIFTH GROUNDS FOR RELIEF.
{¶200} Froman argues that even if a single error was insufficient to demonstrate
grounds for relief, the cumulative effect of all errors that occurred in his trial entitled him to
an evidentiary hearing. But for the reasons described above, Froman has demonstrated
no errors that occurred at his trial, including no violations of his constitutional rights that
render his judgment of conviction void or voidable. The cumulative error doctrine is
inapplicable when there are not multiple instances presented of harmless error. State v.
Garner, 74 Ohio St.3d 49, 64 (1995). Froman has failed to demonstrate substantive
grounds for relief with respect to cumulative error and the trial court did not abuse its
discretion by dismissing Grounds 34 and 35. Blankenburg, 2012-Ohio-6175 at ¶ 9. We
overrule Froman's ninth assignment of error.
J. Claims Challenging the Trial Court's Use of the Doctrine of Res Judicata
{¶201} Assignment of Error No. 1:
{¶202} THE TRIAL COURT ERRED BY APPLYING THE DOCTRINE OF RES
JUDICATA TO BAR FROMAN'S GROUNDS FOR RELIEF.
{¶203} Froman argues that the court erred by dismissing 45 of 47 of his Grounds
based on res judicata. He contends that he supported many of the Grounds with evidence
outside the record and therefore res judicata did not apply. In particular, Froman points to
his claims of ineffective assistance of counsel and the various materials he submitted in
support of those claims. Froman also contends that the trial court dismissed Grounds 4
through 6 (relating to pretrial publicity and voir dire) based only on res judicata.12
12. We observe that this argument about Grounds 4 through 6 is an implicit acknowledgment that the trial
court provided other, substantive reasons for denying Froman's remaining Grounds.
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{¶204} The state defends the trial court's use of the doctrine of res judicata but also
contends that the court provided other, substantive reasons for denying each Ground,
including Grounds 4 through 6. The state also argues that the vast majority of Froman's
grounds for relief are based on matters that Froman did or could have raised on direct
appeal and that he is attempting to bypass res judicata by submitting insignificant affidavits
and other materials not in the record.
{¶205} Whether the court erred in applying a legal doctrine is a matter of law that we
review de novo. Myers, 2021-Ohio-631 at ¶ 36. Upon review, we find that we have already
addressed the arguments in Assignment of Error No. 1 in the course of analyzing Froman's
other assignments of error above. We have either affirmed the trial court's decision on
substantive grounds, or affirmed the trial court's use of res judicata, or both. Accordingly,
we find this assignment of error is moot and need not be considered. App.R. 12(A)(1)(c).
III. Conclusion
{¶206} For the reasons described above, we find that the trial court did not abuse its
discretion and properly dismissed Froman's PCR petition without an evidentiary hearing.
Res judicata bars most of Froman's grounds for relief. In all other instances, the petition,
the supporting affidavits, the documentary evidence, the files, and the records of the case
failed to demonstrate sufficient operative facts to establish substantive grounds for relief.
{¶207} Judgment affirmed.
PIPER, P.J., and S. POWELL, J., concur.
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