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172 N.E.3d 841

, ¶ 113. In
a capital trial, the court may admit victim-impact evidence during the trial phase
“only when the evidence [is] relevant to the facts attendant to the offense.” Id.; see
also Evid.R. 401.
{¶ 194} “Testimony is overly emotional when it is likely to inflame the
passions of the jurors and elicit a purely emotional response that would inhibit the
jurors from making an objective and rational determination regarding the
defendant’s guilt and/or the appropriate punishment.” Graham at ¶ 123. Factors
relevant in making that determination include (1) “the length of the victim-impact
testimony,” (2) “whether witnesses, jurors, and audience members showed physical
signs of emotion during the testimony,” (3) “the detail and depth of the victim-
impact testimony with regard to the murder victim[s],” and (4) “whether the victim-
impact witness used emotionally charged language.” Id. at ¶ 126. This is not an
exhaustive list. Id.
b. Alleged victim-impact evidence during the trial phase
{¶ 195} As discussed in our consideration of Nicholson’s first proposition
of law, a primary dispute in this appeal is whether the evidence showed that
Nicholson’s relationship with M.L. and Giselle was strained. Billingslea and
Bailey each provided probative evidence regarding the relationships between
Nicholson and M.L. and Giselle leading up to M.L.’s and Giselle’s deaths,
including how long they had known each victim; whether they had been to
Polanco’s house; what, if anything, they had seen at Polanco’s house; and whether
they had witnessed any domestic abuse or tension between Nicholson and the
victims. Moreover, neither witness testified about the penalty to be imposed, and
the record does not indicate that either witness became emotional while testifying.
See State v. Wilks,

154 Ohio St.3d 359

2018-Ohio-1562

114 N.E.3d 1092

, ¶ 79.
Thus, we reject the contention that the testimonies of Billingslea or Bailey were
inadmissible victim-impact evidence. See id. at ¶ 80.
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January Term, 2024
{¶ 196} We also reject Nicholson’s argument concerning the emotional
testimonies of Polanco and Lieutenant Petrick. Defense counsel did not object to
the trial court’s decision to stop Polanco’s direct examination when she became
upset or to its allowing her to complete her testimony at a later date. In a prior
capital case, we found no plain error when the victim’s son had become distraught
when trying to testify about the impact that the victim’s death had on him. State v.
Reynolds,

80 Ohio St.3d 670

, 678-679,

687 N.E.2d 1358

 (1998). And we found no
reversible error in that case even though the prosecutor had “incorporated the
victim-impact testimony into his closing argument.”

Id. at 678

. Here, the record
does not show that any juror was emotionally affected by Polanco’s distress during
her testimony. In addition, the trial court instructed the jury to disregard Lieutenant
Petrick’s testimony about his own daughter. We reject Nicholson’s contention that
he was deprived of a fair trial because of either of the emotional displays.
{¶ 197} Nicholson emphasizes that several witnesses testified that M.L. and
Giselle had been “good kids” or “respectful” or “polite.” Under Graham,

164 Ohio St.3d 187

172 N.E.3d 841

, at ¶ 126, one of the factors for
determining whether testimony was impermissible victim-impact evidence is
whether it was lengthy. But none of the testimony cited by Nicholson was lengthy.
The statements that Nicholson challenges as being inadmissible victim-impact
evidence were brief, served to establish the existence of the victims, and provided
the jury with a backdrop against which to view the relationships between Nicholson
and each of the victims. None of this challenged testimony was overly emotional
or directed at the penalty to be imposed, and it thus does not fit within the definition
of victim-impact evidence.
{¶ 198} None of the other factors articulated in Graham help Nicholson
either. He does not claim that any witnesses other than Polanco or Lieutenant
Petrick used “emotionally charged language,”

id.,

 and he cannot point to record
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evidence showing that any “witnesses, jurors, [or] audience members showed
physical signs of emotion during the testimony,”

id.

{¶ 199} We also reject Nicholson’s argument that the state, in its opening
statement and closing arguments, highlighted improper victim-impact evidence
with the goal of swaying the jury. The trial court instructed the jury that counsels’
opening statements and closing arguments are not evidence. To the extent that the
state may have referred to personal characteristics of M.L. and Giselle during its
opening statement or closing arguments, the court’s instructions cured any error.
See State v. Treesh,

90 Ohio St.3d 460

, 480,

739 N.E.2d 749

 (2001) (we presume
that the jury followed the court’s curative instructions, including instructions to
disregard testimony).
c. Carryover effect on mitigation phase
{¶ 200} Nicholson asserts that the admission of the allegedly improper
victim-impact evidence during the trial phase prejudiced him during the mitigation
phase. But even assuming that this evidence was inadmissible, we cannot conclude
that Nicholson’s sentence would clearly have been different but for the admission
of the evidence. See State v. Whitaker,

169 Ohio St.3d 647

2022-Ohio-2840

207 N.E.3d 677

, ¶ 106-110.
4. Conclusion
{¶ 201} In sum, Nicholson has not demonstrated that the trial court erred in
admitting any of the evidence challenged under this proposition of law. The
challenged testimony was relevant evidence regarding Nicholson’s relationships
with M.L. and Giselle and was not overly emotional or improperly directed at the
penalty to be imposed.
{¶ 202} For these reasons, we reject Nicholson’s seventh proposition of
law.
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January Term, 2024
H. Inadequate voir dire
{¶ 203} Nicholson’s eighth proposition of law raises several challenges to
the trial court’s voir dire procedure, which he argues was constitutionally
inadequate.
1. Denial of alternating questioning
{¶ 204} First, Nicholson contends that his counsel were always last (after
the trial court and the state) to question potential jurors. He argues that this
procedure denied him a “fair and impartial jury” because pro-death-penalty jurors
had been rehabilitated by the time his counsel had a chance to question them and
were so “locked in” to their positions following the rehabilitation that his counsel’s
voir dire efforts were futile.
{¶ 205} The few courts that have confronted this issue have rejected the
claim that defendants have a right to alternating voir dire. See, e.g., State v. Joseph,
3d Dist. Allen No. 1-91-11,

1993 WL 531858

, *40 (Dec. 23, 1993), aff’d,

73 Ohio St.3d 450

653 N.E.2d 285

 (1995); State v. Treesh, 11th Dist. Lake No. 95-L-057,

1998 Ohio App. LEXIS 4886

, *145 (Oct. 16, 1988). We agree with that conclusion
and reject Nicholson’s argument.
2. “Follow the law” questions
{¶ 206} Nicholson also argues that the trial court erroneously relied on
prospective jurors’ responses to general follow-the-law questions to retain potential
jurors who should have been excluded for cause under Morgan v. Illinois,

504 U.S. 719

112 S.Ct. 2222

119 L.Ed.2d 492

 (1992). He identifies multiple prospective
jurors who he says were improperly qualified by general and “superficial” follow-
the-law questions during death-qualification voir dire. The state counters that
Nicholson’s argument “is based on a misreading of Morgan” and that he fails to
explain how the follow-the-law questions prejudiced him.
{¶ 207} When deciding a motion to exclude a potential juror for cause,
“[t]he ultimate question is whether the ‘juror sw[ore] that he could set aside any
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opinion he might hold and decide the case on the evidence, and [whether] the juror’s
protestation of impartiality [should be] believed.’ ” (Brackets added in White.)
White v. Mitchell,

431 F.3d 517

, 538 (6th Cir.2005), quoting Patton v. Yount,

467 U.S. 1025

, 1037,

104 S.Ct. 2885

81 L.Ed.2d 847

 (1984); see also State v. Perez,

124 Ohio St.3d 122

2009-Ohio-6179

920 N.E.2d 104

, ¶ 140. In considering
jurors’ believability, we defer to the trial judge who saw and heard them.
Mammone,

139 Ohio St.3d 467

2014-Ohio-1942

13 N.E.3d 1051

, at ¶ 83. To
prevail, Nicholson must show that the trial court abused its discretion. See State v.
Williams,

79 Ohio St.3d 1

, 8,

679 N.E.2d 646

 (1997).
{¶ 208} As a threshold matter, Nicholson misconstrues Morgan. That case
does not stand for the proposition that it is improper to use “follow the law”
questions to explore whether a prospective juror is able to serve impartially.
However, it is significant that the voir dire procedure analyzed in Morgan was
unlike the procedure for Nicholson’s voir dire. In Morgan, the trial court had been
the only questioner of the prospective jurors, and it denied Morgan’s request that
the court ask them: “If you found * * * Morgan guilty, would you automatically
vote to impose the death penalty no matter what the facts are?”

Id. at 723

. Thus,
the issue presented in Morgan was limited to whether a trial court must allow a
capital defendant to question prospective jurors about whether they would
automatically impose the death penalty following a guilty verdict.

Id. at 734-736

.
And we hold that Morgan does not prohibit the use of so-called “follow the law”
questions during voir dire. See

id.

{¶ 209} Here, for instance, prospective juror No. 16 circled “7” in response
to question No. 35 on the juror questionnaire, which asked prospective jurors to
rate their “feelings about the death penalty” on a scale of 1 to 10, with “10” meaning
“strongly support.” Prospective juror No. 16 also wrote on the questionnaire: “I
support the death penalty for premeditated murder.” On the next question, he
checked the line indicating, “I have some doubts or reservations about the death
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January Term, 2024
penalty, but I would not vote against the death penalty in every case. I would
seriously weigh and consider the aggravating and mitigating factors to determine
the appropriate penalty.” (Boldface sic.) And in response to a question on the juror
questionnaire regarding whether he held “any religious, moral feelings or
philosophical beliefs that would affect [his] ability to vote for the death penalty as
a judgment in this case,” prospective juror No. 16 checked “No.” But he wrote on
the questionnaire: “If someone commits murder they should be prepared to give up
their own life.” During voir dire, prospective juror No. 16 confirmed that that
statement accurately captured his feelings regarding aggravated murder and the
death penalty.
{¶ 210} When asked about his general feelings about the death penalty,
prospective juror No. 16 responded that it is “necessary in some cases.” He
explained that “some cases” meant “[m]urder cases, or something very violent.”
But he unequivocally declined to state that he supported the death penalty in all
murder cases, instead stating that it “would depend on all the mitigating factors.”
When the state asked prospective juror No. 16 whether he would be able to
“consider [mitigating] evidence in the second phase,” he responded, “Certainly.”
He also stated that he would be able to consider Nicholson’s history, character, and
background during the mitigation phase, if it came to that. When the state asked
prospective juror No. 16 whether he had “any reservations or hesitations about any
part of that process,” he responded, “Not really.”
{¶ 211} Defense counsel also focused on prospective juror No. 16’s
statement on the juror questionnaire that he supported the death penalty for
premeditated murder. But prospective juror No. 16 explained that he did not
“believe you have to [impose the death penalty for premeditated murder], but it
depends on hashing out all the evidence.” (Emphasis added.) He also indicated
that he would give no weight to the victims’ ages, and he consistently stated that he
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would consider mitigating evidence. Nicholson has not identified any error with
respect to the voir dire of prospective juror No. 16.
{¶ 212} Nicholson also points to prospective juror No. 43’s voir dire as an
alleged example of how the trial court and the prosecutor rehabilitated a prospective
juror through “follow the law” questions. In response to a question on the juror
questionnaire asking the prospective jurors to rate their “feelings about the death
penalty” on a scale of 1 to 10, prospective juror No. 43 underlined “10.” But in the
space underneath that question, she wrote, “If someone asked me on the street, I’d
say I strongly support it. Asking me here and the reality of making that kind of a
decision, I’m not sure where I would place myself on the above scale. I’m just a
human too. I believe in the death penalty because I believe the bible is from God.
* * * I have some doubts or reservations about the death penalty but I favor the
death penalty and would not always vote for it in every case of aggravated murder.”
{¶ 213} Here, again, Nicholson fails to demonstrate any error regarding voir
dire. Prospective juror No. 43 did not give automatic-death-penalty answers in her
questionnaire. The law does not prohibit asking prospective jurors whether they
can follow the law under these circumstances.
{¶ 214} Nicholson has not pointed to any follow-the-law questions that
were asked in this case that would be disallowed under Morgan,

504 U.S. 719

112 S.Ct. 2222

119 L.Ed.2d 492

. We conclude that the trial court did not abuse its
discretion in permitting the questions. We therefore reject Nicholson’s argument
to the contrary.
3. Denial of motion for mistrial
{¶ 215} Next, Nicholson contends that the prospective jurors were confused
by the death-penalty process and failed to understand core terms that apply to
capital cases and that the trial court erred when it denied his motion for a mistrial
following prospective juror No. 53’s individual voir dire. The state correctly argues
that there is no requirement that jurors be provided with definitions of key terms at
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the beginning of a capital trial, and in any event, Nicholson was not prejudiced by
any potential juror confusion in this regard.
{¶ 216} “[P]rospective jurors often have difficulty articulating their views
during voir dire.” Froman,

162 Ohio St.3d 435

2020-Ohio-4523

165 N.E.3d 1198

, at ¶ 67. Most jurors are “unfamiliar[] with courtroom proceedings,” and a
typical venire will “run[] the spectrum in terms of education and experience.”
White, 431 F.3d at 537. Moreover, throughout a trial, the court is tasked with
explaining legal concepts and relevant terminology to the jury, and the parties may
ask the court to provide further jury instructions. See Crim.R. 30.
{¶ 217} Nicholson fails to identify any error in the voir dire process in this
case. The prospective jurors filled out extensive questionnaires, which counsel
could rely on when conducting individual voir dire. The trial court also provided
the venire with initial jury instructions and definitions before individual voir dire.
The instructions defined key terms like “indictment,” “specification,” “trial phase,”
“aggravating circumstances,” and “mitigating factors.” Further, the trial court
permitted individual, sequestered voir dire with each prospective juror, followed by
a general voir dire examination in open court. The individual voir dire provided
ample opportunity for prospective jurors to ask for additional explanation of any
concepts or to clear up any confusion.
{¶ 218} We hold that the trial court did not abuse its discretion by denying
Nicholson’s motion for a mistrial based on juror confusion.
4. Inadvertent misinformation given to the jury pool
{¶ 219} Nicholson argues that the state and the trial court prejudiced him
by misstating how many counts of aggravated murder the indictment contained.
{¶ 220} Nicholson was indicted on two counts of aggravated murder and
two counts of murder (one each for both M.L. and Giselle). However, at multiple
points during voir dire, both the trial court and the prosecutors misinformed
prospective jurors that Nicholson had been charged with four counts of aggravated
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murder. It is not obvious how this misinformation could have prejudiced
Nicholson, and he makes little attempt to explain how he was prejudiced.
{¶ 221} We reject Nicholson’s eighth proposition of law and hold that he
had a constitutionally adequate voir dire.
I. Discovery violation
{¶ 222} In his ninth proposition of law, Nicholson contends that the trial
court deprived him of a fair trial when it allowed two witnesses who were not timely
disclosed to the defense, Santos and Nieves, to testify about the discovery of
Nicholson’s service gun in the trunk of his car on September 13, 2018. Nicholson
submits that the testimony unfairly undermined his credibility and his self-defense
claim. He also argues that defense counsel were ineffective “for failing to properly
maintain[] objections to these two witnesses.” The state counters that even if the
testimony were inadmissible (a point the state does not concede), Nicholson cannot
show prejudice.
1. Relevant background
{¶ 223} The state filed its Crim.R. 16(I) witness list on September 5, 2019,
and filed its supplemental witnesses list on September 13. Neither list included
Santos or Nieves. On September 24, the state filed a second supplemental witness
list that included Santos’s name but not her contact information. It also filed a
supplemental discovery response that, among other things, provided defense
counsel with Santos’s witness statement. The state did not disclose Nieves as a
potential witness until September 26; the record does not indicate whether Nieves
provided a statement to police before he testified.
{¶ 224} Immediately after the state’s opening statement, at sidebar, defense
counsel objected to the state’s late disclosure of the witnesses who would testify to
the location of Nicholson’s service gun on September 13, 2018. The trial court
instructed defense counsel to raise any objections to the witnesses at the time of
their testimony.
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January Term, 2024
{¶ 225} At the end of the same day, defense counsel asked the court to
disallow the testimonies of Santos and Nieves because the state had given notice of
its intent to call Santos only “within the past few days” and the defense had not had
an opportunity to have its investigator speak to her. The trial court denied
Nicholson’s request to disallow the testimony. Defense counsel’s investigator
ultimately interviewed Santos, and the state had provided defense counsel with
Santos’s statement. Santos and Nieves testified without further objection.
2. Standard of review
{¶ 226} As a preliminary matter, the state argues that Nicholson did not
properly object to the testimony of either witness on Crim.R. 16 grounds and that
he has thus forfeited all but plain-error review of this claim. The trial transcript,
however, shows that defense counsel expressly objected to the testimony of both
witnesses based on an alleged discovery violation and requested that “they not be
allowed to testify at this point in time.” (Emphasis added.) However, the day
before Santos was to testify, defense counsel had their defense investigator
interview Santos, and defense counsel did not object again before she testified.
Likewise, defense counsel did not object on discovery grounds when Nieves
testified.
{¶ 227} By not renewing his objections to the testimonies of Santos and
Nieves on discovery grounds when they took the stand, Nicholson forfeited all but
plain-error review of the issue. See State v. Stembridge, 9th Dist. Summit No.
23812,

2008-Ohio-1054

, ¶ 12 (“Because defense counsel did not bring the alleged
discovery violation to the trial court’s attention when [the challenged witness] took
the stand to testify, Defendant has forfeited any error, unless allowing [the witness]
to testify under the circumstances of this case rises to the level of plain error”); see
also State v. Cunningham,

105 Ohio St.3d 197

2004-Ohio-7007

824 N.E.2d 504

,
¶ 47-48; Crim.R. 52(B).
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3. Trial court did not plainly err in allowing the testimony
{¶ 228} Nicholson gives three reasons why the trial court erred in allowing
Santos and Nieves to testify. First, he argues that “[g]iven [Polanco’s] inconsistent
statements regarding the location of the service weapon and the apparent bias of
[Polanco] and Roberto” regarding when it was placed into the trunk of his car,
Santos’s and Nieves’s testimony “was critical” to the state’s “intended purpose of
directly countering * * * [his] self-defense claim and generally discrediting his
description of the events.” Second, he notes that there was no body-camera footage
of the vehicle searches and that photographs from the second search of his vehicle
were overwritten before defense counsel could see them. Third, he argues that
police returned his service gun to his employer without first submitting it for
scientific analysis or giving the defense an opportunity to view or test it.
{¶ 229} Although Nicholson accurately describes gaps in the investigation,
he concedes in his reply brief that “earlier knowledge of the testimony the [s]tate
intended to elicit from [Santos and Nieves] (as well as [Polanco] and Lopez)
regarding the location of the service weapon probably would not have changed Mr.
Nicholson’s theory of defense.”
{¶ 230} In light of this concession, and notwithstanding the gaps in the
investigation, Nicholson has not identified any error in the admission of the
testimony or adequately explained how the belated disclosures affected the
outcome of his trial.
{¶ 231} We reject Nicholson’s ninth proposition of law.
J. Readmission of trial-phase evidence
{¶ 232} In his tenth proposition of law, Nicholson argues that the trial court
abused its discretion when it readmitted “nearly all [the] culpability phase evidence
during the mitigation phase” of his trial. To prevail under this proposition,
Nicholson must show that the trial court abused its discretion by readmitting the
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January Term, 2024
evidence. See Lang,

129 Ohio St.3d 512

2011-Ohio-4215

954 N.E.2d 596

, at
¶ 241.
1. Relevant facts
{¶ 233} Before the start of the mitigation phase, the trial court readmitted
all the evidence that was admitted in the trial phase, except for the following:
photographs of Polanco taken at the hospital following the offenses, a cellphone-
analysis report, Polanco’s hospital records, and some other physical exhibits.
{¶ 234} The trial court then instructed the jury:
Some of the evidence and testimony that you considered in
the trial phase of this case may not be considered in the sentencing
phase. For purposes of this proceeding you are to consider only that
evidence admitted in the trial phase that is relevant to the
aggravating circumstances of which the defendant has been found
guilty and to any of the mitigating factors. You will also consider
all the evidence admitted during the sentencing phase.
The court further instructed: “When you consider the nature and circumstances of
the offense, you may only consider them if they have any mitigating value. You
may not consider the nature and circumstances of the crime as an aggravating
circumstance.” Just before releasing the jury for its deliberations, the court told the
jury that “[a]ll the evidence that’s been admitted will be back with you. So if there’s
some exhibits that may be referred to but you don’t have, it’s not an oversight.
Either they weren’t offered or they were not admitted.” Regarding the aggravating
circumstance of engaging in a course of conduct to murder or attempt to murder
two or more people, the court instructed the jury that “any link that ties the two
homicides together” is relevant.
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2. Analysis
{¶ 235} R.C. 2929.03(D)(1) provides that during the mitigation phase of a
capital proceeding, the jury shall consider, among other things, “any evidence
raised at trial that is relevant to the aggravating circumstances the offender was
found guilty of committing * * * [and] shall hear testimony and other evidence that
is relevant to the nature and circumstances of the aggravating circumstances the
offender was found guilty of committing.” Nicholson argues that pursuant to R.C.
2929.03(D)(1), “the [s]tate could reintroduce only the minimal evidence proving
the aggravated circumstances that moved this case into the mitigation phase: for
Counts One and Two, the course of conduct specification under
R.C. 2929.04(A)(5).” (Emphasis added.) But see DePew, 38 Ohio St.3d at 282-
283,

528 N.E.2d 542

 (holding that R.C. 2929.03(D)(1) does not limit the
reintroduction during the mitigation phase of evidence that is relevant to the
aggravating circumstances).
{¶ 236} Citing State v. Belton,

149 Ohio St.3d 165

2016-Ohio-1581

74 N.E.3d 319

, Nicholson argues that the trial court erroneously allowed the state to
admit “nature and circumstances” evidence, which he says is “only admissible to
the extent the defense offers the evidence” during the mitigation phase.
Nicholson’s reliance on Belton is misplaced.          In Belton, we observed that
R.C. 2929.04(B) and (C)—not R.C. 2929.03(D)—prohibit referring to “the nature
and circumstances of the offense as a factor to be considered in mitigation unless
and until offered by defendant.” (Emphasis deleted.) Belton at ¶ 92. And as we
recently explained: “In DePew, we * * * observed that not only is repetition of trial-
phase evidence for the mitigation phase required by the statute but it is also logical
given ‘the prosecution’s obligation to demonstrate, by proof beyond a reasonable
doubt, that the aggravating circumstances the defendant was found guilty of
committing are sufficient to outweigh the factors in mitigation.’ ” State v. McAlpin,
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January Term, 2024

169 Ohio St.3d 279

2022-Ohio-1567

204 N.E.3d 459

, ¶ 142, quoting DePew at
283.
{¶ 237} Nicholson also claims that the trial court should not have
readmitted videos and photographs of M.L. and Giselle, crime-scene videos and
photographs, Polanco’s text messages with Nicholson and Giselle (state’s exhibit
Nos. 341B-BB, 341GG, and 341OO), prior-acts-related photographs and metadata
(state’s exhibit Nos. 341ZZ through JJJ), text messages between Nicholson and his
mother (state’s exhibit Nos. 410A, 410B, and 410C), Nicholson’s May 14, 2019
phone call from jail (state’s exhibit Nos. 408 and 423), cellphone-extraction reports
(state’s exhibit Nos. 424 and 425) and related data (state’s exhibit Nos. 552, 578,
and 579), utility bills (state’s exhibit Nos. 426 and 427), “and the majority of the
testimonial evidence.”
{¶ 238} Citing State v. Ketterer,

111 Ohio St.3d 70

2006-Ohio-5283

855 N.E.2d 48

, ¶ 132-133, the state responds by asserting that it is not per se error for a
trial court to readmit much or all of the trial-phase evidence in a capital case. But
Ketterer does not have the broad import that the state suggests. Ketterer tried his
aggravated-murder case to a three-judge panel, and we held that the panel did not
commit plain error when it allowed the state to reintroduce at the mitigation phase
all of the trial-phase evidence. Id. at ¶ 134, quoting State v. Davis,

63 Ohio St.3d 44

, 48,

584 N.E.2d 1192

 (1992) (noting that “a panel of judges is presumed to
‘consider only relevant, competent and admissible evidence in its deliberations’ ”).
Because Nicholson had a jury trial, Ketterer is inapplicable here.
{¶ 239} The trial court readmitted only the evidence that it deemed relevant
to the aggravating circumstances. In particular, the body-camera videos and crime-
scene photographs were relevant to the course-of-conduct aggravating
circumstance, as explained above in our analysis of Nicholson’s fourth proposition
of law. See also Ford,

158 Ohio St.3d 139

2019-Ohio-4539

140 N.E.3d 616

, at
¶ 355. Therefore, the trial court’s readmission of the crime-scene photographs and
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body-camera footage of the scene was not an abuse of discretion. See State v.
LaMar,

95 Ohio St.3d 181

2002-Ohio-2128

767 N.E.2d 166

, ¶ 90 (finding “no
error in the trial court’s admission of the photographs and demonstrative exhibits
depicting the weapon used [because] * * * [t]hese items bore some relevance to the
nature and circumstances surrounding the R.C. 2929.04(A)(5) course-of-conduct
specification of which the jury found [the defendant] guilty”).
{¶ 240} The trial court also readmitted several text messages of Polanco,
Nicholson, and Giselle and between Nicholson and his mother. State’s exhibit Nos.
341B-BB, 341GG, and 341OO were admitted during the trial phase to show
Nicholson’s motive, intent, and lack of mistake. The text messages bore some
relevance to the course-of-conduct specification, in that the messages refer to M.L.
and serve as evidence of Nicholson’s strained relationship with M.L. and Giselle.
And the text messages between Nicholson and his mother were arguably relevant
during the mitigation phase in that they tended to show the unconditional love
between Nicholson and his mother. Thus, we hold that it was not error for the trial
court to readmit state’s exhibit Nos. 341B-BB, 341GG, 341OO, 410A, 410B, and
410C.
{¶ 241} Nicholson also maintains that the trial court abused its discretion in
readmitting the “photographs and metadata” extracted from Polanco’s cellphone.
State’s exhibit No. 341JJJ is a photograph of the bruise that Nicholson caused when
he attacked Giselle after a disagreement about laundry. That photograph was
relevant to the course-of-conduct aggravating circumstance, and thus it was not
error for the court to readmit it for the mitigation phase.
{¶ 242} As to state’s exhibit Nos. 341ZZ through 341FFF, Polanco testified
that the photographs depicted injuries inflicted by Nicholson. The metadata for the
photographs was used at trial to establish the dates on which the photographs were
taken. These photographs and metadata were irrelevant to the mitigation phase,
because the jury had acquitted Nicholson of the attempted murder of Polanco.
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Therefore, the trial court should not have readmitted state’s exhibit Nos. 341ZZ
through 341FFF. However, we hold that the “error was harmless in light of the
remaining evidence adduced during the mitigation phase,” State v. Johnson,

144 Ohio St.3d 518

2015-Ohio-4903

45 N.E.3d 208

, ¶ 75.
{¶ 243} Nicholson further argues that the trial court erred when in
readmitted two utility bills that the state had presented during the trial phase. We
agree that the utility bills should not have been readmitted, because they bore no
relevance to Nicholson’s conduct in killing M.L. and Giselle. But Nicholson has
not shown that he was prejudiced by the readmission of that evidence.
{¶ 244} Nicholson also argues that the trial court erred when it readmitted
a recording of a May 14, 2019 jail phone call between Nicholson and his older
brother, Robert Nicholson Jr. During the call, Robert stated that Nicholson was
one of the “most calculating” people he knew. According to Nicholson, what
Robert meant by that statement was that “everything that I do has a reason.”
{¶ 245} This recording had no relevance to the course-of-conduct
aggravating circumstance, and the trial court erred in readmitting it for the
mitigation phase. However, the trial court “explicitly instructed the jury on what it
could and could not consider as aggravating circumstances and also instructed the
jury that it must not consider the nature and circumstances of the murders unless
they were mitigating,” McAlpin,

169 Ohio St.3d 279

2022-Ohio-1567

204 N.E.3d 459

, at ¶ 207. Given the court’s instructions, there is no realistic chance that the
readmission of the May 14, 2019 jail phone call affected the outcome of
Nicholson’s sentencing. Therefore, we reject Nicholson’s tenth proposition of law.
K. Erroneous weighing
1. Aggravating circumstances
{¶ 246} In his 11th proposition of law, Nicholson argues that both the jury
and the trial court improperly weighed the aggravating circumstances against the
mitigating factors and thereby erroneously discounted his mitigation evidence.
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{¶ 247} Despite his being convicted of two counts of aggravated murder
and two course-of-conduct aggravating circumstances, Nicholson urges this court
to afford significantly less weight to the aggravating circumstance because “once
[he] decided to kill, the sheer proximity of M.L. to Giselle alone facilitated the two
deaths.” While it is possible that Nicholson aimed his gun only at M.L., there is no
evidence in the record to establish that fact. And to suggest in the absence of such
evidence that Giselle’s death was purely a matter of her being in the wrong place
at the wrong time is unconvincing. Nicholson was employed as a security guard
by Paragon Systems on the date of the offenses and was well-trained on how to use
firearms.
{¶ 248} Accordingly, we reject Nicholson’s argument that the course-of-
conduct aggravating circumstance should be given less weight.
2. Weight of mitigation evidence
{¶ 249} Nicholson argues that the jury and the trial court gave his mitigating
evidence substantially less weight than it should have. He complains that the trial
court erroneously gave little or no weight to his lack of prior criminal convictions
under R.C. 2929.04(B)(5). He argues that any evidence of prior threats or violence
toward Polanco or others should not have been considered, because he was never
charged with a crime regarding those matters. However, the lack of a significant
history of prior criminal convictions is only one of the mitigating factors the court
must weigh against the aggravating circumstances. And this court’s independent
sentence review will cure any error in the trial court’s weighing process.
{¶ 250} Accordingly, we reject Nicholson’s 11th proposition of law.
L. Proportionality review
{¶ 251} In his 12th proposition of law, Nicholson argues that his death
sentences are excessive and disproportionate to the penalty imposed in similar cases
and therefore violate the Eighth and Fourteenth Amendments to the United States
Constitution and Article I, Sections 1, 2, 9, and 16 of the Ohio Constitution.
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January Term, 2024
Nicholson’s argument relies on the reasoning set forth in the concurring opinion in
Graham,

164 Ohio St.3d 187

172 N.E.3d 841

, at ¶ 220-229
(Donnelly, J., concurring). A concurring opinion does not represent a judgment of
the court, and the reasons advanced in support of finding Graham’s death sentence
inappropriate in that concurring opinion do not exist here. Thus, we find no merit
to Nicholson’s 12th proposition of law.
M. Failure to instruct on specific mitigating factors
{¶ 252} In his 13th proposition of law, Nicholson argues that the trial court
erred during the mitigation phase when it failed to instruct the jury on the statutory
and nonstatutory mitigating factors that Nicholson raised during both phases of the
trial. Although the trial court granted Nicholson’s pretrial motion requesting jury
instructions on specific mitigating factors, Nicholson contends that the court erred
by failing to give the instructions during the mitigation phase.
{¶ 253} Defense counsel failed to identify at trial any specific mitigating
factors under R.C. 2929.04(B)(1) through (6) that were established by Nicholson’s
evidence.    Indeed, Nicholson seems to concede that defense counsel relied
exclusively on the catchall mitigation factor under R.C. 2929.04(B)(7) to argue for
a life sentence. He contends that “[s]imply arguing it under the R.C. 2929.04(B)(7)
catchall does not cure the error” and that the trial court plainly erred when it did not
instruct the jury on multiple mitigating factors within R.C.2929.04(B)(1)
through (6). Because defense counsel did not object to the instructions given to the
jury or request any specific instructions based on Nicholson’s mitigating evidence,
Nicholson has forfeited this claim, absent plain error. See Smith, 89 Ohio St.3d at
332,

731 N.E.2d 645

; Crim.R. 52(B).
{¶ 254} During the mitigation phase, the trial court instructed the jury that
mitigating factors “weigh in favor of” a life sentence and diminish the
appropriateness of a death sentence. The court stated:
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SUPREME COURT OF OHIO
Mitigating factors include, but are not limited to, the nature
and circumstances of the offense, the history, character, and
background of the defendant, and any other factors that weigh in
favor of a sentence other than death.
This means you are not limited to the specific mitigating
factors that have been described to you. You should consider any
other mitigating factors that weigh in favor of a sentence other than
death.
Any one of these mitigating factors standing alone is
sufficient to support a sentence of life imprisonment if the
aggravating circumstances are not sufficient to outweigh the
mitigating factors beyond a reasonable doubt.
{¶ 255} The jury instructions correctly stated the law, and without a defense
objection or a request for specific instructions, the trial court was under no
obligation to include specific references to the factors under R.C. 2929.04(B)(1)
through (6). “[W]here the defendant does not raise a particular mitigating factor,
that factor need not be considered in the opinions of the trial court and the appellate
court or in the process of weighing mitigating factors against the aggravating
circumstances.” DePew, 38 Ohio St.3d at 289,

528 N.E.2d 542

.
{¶ 256} Nicholson has not established that any error occurred when the trial
court instructed the jurors during the mitigation phase, much less plain error under
Crim.R. 52(B). Accordingly, we reject Nicholson’s 13th proposition of law.
N. Challenges to the trial court’s sentencing opinion
{¶ 257} In his 14th proposition of law, Nicholson argues that in its
sentencing opinion, the trial court violated the Eighth and Fourteenth Amendments
to the United States Constitution and Article I, Sections 1, 2, and 16 of the Ohio
Constitution by affording insufficient or no weight to his mitigating evidence. He
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further contends that the trial court “misapplie[d] the weighing process” in its
sentencing opinion.
{¶ 258} Under R.C. 2929.03(F), a trial court must state in a separate opinion
specific findings as to the existence of any of the mitigating factors
set forth in division (B) of section 2929.04 of the Revised Code, the
existence of any other mitigating factors, the aggravating
circumstances the offender was found guilty of committing, and the
reasons why the aggravating circumstances the offender was found
guilty of committing were sufficient to outweigh the mitigating
factors.
{¶ 259} In crafting a written opinion under this statute, a trial court retains
wide discretion over whether and how much weight to give a defendant’s mitigating
evidence. State v. Worley,

164 Ohio St.3d 589

2021-Ohio-2207

174 N.E.3d 754

,
¶ 90. To demonstrate error, Nicholson must show that the trial court’s “attitude
was unreasonable, arbitrary, or unconscionable.” Id.; see also Ford,

158 Ohio St.3d 139

2019-Ohio-4539

140 N.E.3d 616

, at ¶ 437 (“The assessment and weight to be
given to mitigating evidence are matters for the trial court’s determination”).
{¶ 260} Nicholson contends that the jury’s verdict finding him guilty of
murdering M.L. and Giselle with prior calculation and design and as part of a course
of conduct under R.C. 2929.04(A)(5) was not supported by sufficient evidence or
was against the manifest weight of the evidence. We have already rejected these
arguments in our ruling on Nicholson’s first proposition of law.
{¶ 261} Nicholson also maintains that the trial court improperly assigned
weight to (1) the nature and circumstances of the offense, (2) his history, character,
and background, (3) his mental-health diagnoses, (4) his lack of significant
criminal history, and (5) his future dangerousness or lack thereof.
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{¶ 262} The United States Supreme Court has held that a sentencing court
“may not give [mitigating evidence] no weight by excluding such evidence from
[its] consideration.” Eddings v. Oklahoma,

455 U.S. 104

, 115,

102 S.Ct. 869

71 L.Ed.2d 1

 (1982). But the Eighth Amendment does not “require the sentencer to
reach any particular conclusion about the weight of that evidence.” State v. Davis,

139 Ohio St.3d 122

2014-Ohio-1615

9 N.E.3d 1031

, ¶ 60.
{¶ 263} Nicholson also contends that the trial court failed to discuss, and
therefore failed to assign appropriate weight to, his mental-health diagnoses, his
lack of significant criminal history, and his lack of future dangerousness. However,
“a trial court is not required to individually discuss each mitigating factor in its
sentencing opinion.” Worley,

164 Ohio St.3d 589

2021-Ohio-2207

174 N.E.3d 754

, at ¶ 136.
{¶ 264} The trial court appropriately considered all the mitigating evidence
that Nicholson presented, and it assigned weight to each factor. Nicholson has not
demonstrated that the trial court abused its discretion in its written sentencing
opinion. We find no merit to Nicholson’s 14th proposition of law.
O. Prosecutorial misconduct
{¶ 265} In his 15th proposition of law, Nicholson cites several instances of
alleged prosecutorial misconduct during both phases of his trial. Nicholson argues
that the prosecutor knowingly elicited false testimony, “testified” on behalf of
multiple witnesses, knowingly asserted facts that were not in evidence, and
improperly treated a state’s witness as a hostile witness during the trial phase.
Regarding the mitigation phase, Nicholson asserts that the prosecutor elicited
prejudicial testimony from Nicholson’s witnesses, erroneously represented the
mitigating factor in R.C. 2929.04(B)(5) (“the offender’s lack of a significant history
of prior criminal convictions”), and made “improper closing argument remarks.”
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1. Legal standards
{¶ 266} We review prosecutorial-misconduct allegations by considering
“whether the prosecutors’ comments ‘so infected the trial with unfairness as to
make the resulting conviction a denial of due process.’ ” Darden v. Wainwright,

477 U.S. 168

, 181,

106 S.Ct. 2464

91 L.Ed.2d 144

 (1986), quoting Donnelly v.
DeChristoforo,

416 U.S. 637

, 643,

94 S.Ct. 1868

40 L.Ed.2d 431

 (1974). The test
is whether the conduct was improper and, if so, whether it prejudicially affected the
defendant’s substantial rights. State v. Smith,

14 Ohio St.3d 13

, 14,

470 N.E.2d 883

(1984). A judgment will not be reversed when it is clear beyond a reasonable doubt
that absent the prosecutor’s remarks, the jury would have found the defendant
guilty. Id. at 15. Moreover, prosecutorial misconduct must be considered within
the context of the entire trial. State v. Keenan,

66 Ohio St.3d 402

, 410,

613 N.E.3d 203

 (1993).
2. Trial-phase allegations
{¶ 267} Nicholson complains about six alleged instances of prosecutorial
misconduct during the trial phase.
a. Knowingly eliciting false testimony
{¶ 268} Nicholson argues that the prosecutor elicited false testimony from
Detective Biegacki regarding whether, before the shootings, Nicholson asked
Polanco to move her car so he could leave.
{¶ 269} Polanco was asked on cross-examination whether Nicholson asked
her to move her car “multiple times” so that he could leave the premises, before he
obtained his personal gun. She testified that Nicholson asked her to move her car
so he could leave. She said that she told Detective Biegacki the same thing in July
2019. However, during redirect examination of Detective Biegacki, he testified
that he first heard of Nicholson’s having asked Polanco to move her car on the night
of the murders during his cross-examination that day. During recross-examination,
over the state’s objection, defense counsel impeached Detective Biegacki with
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proof that he was present at an interview with Polanco on July 17, 2019, when she
told him that Nicholson had tried to leave but that she failed to move the cars to let
him drive away.
{¶ 270} Nicholson argues that the prosecutor “objected and lied to the trial
court to try to prevent the truth from coming to light.” He adds that the prosecutor
“purported to ‘remember’ that defense counsel—not [Polanco]—was solely
responsible for suggesting that Mr. Nicholson asked [Polanco] multiple times to
move her vehicle before the incident occurred.” Finally, Nicholson contends that
when defense counsel impeached Detective Biegacki, the prosecutor “claimed she
did not remember that.”
{¶ 271} The state does not dispute Nicholson’s factual assertions, but,
quoting Smith v. Phillips,

455 U.S. 209

, 219,

102 S.Ct. 940

71 L.Ed.2d 78

 (1982),
it argues that “[b]ecause of the [s]tate’s immediate action, [Detective Biegacki] was
impeached immediately, removing any concern [that the issue could have had on]
‘the fairness of the trial.’ ” Nicholson concedes that Detective Biegacki’s “timely
impeachment” alleviated any prejudice caused by his inaccurate testimony but
maintains that “prosecutorial misconduct permeated” the trial.
{¶ 272} To prevail on this claim, Nicholson must “show that ‘(1) [Detective
Biegacki’s] statement was actually false; (2) the statement was material; and (3) the
prosecution knew it was false,’ ” State v. Iacona,

93 Ohio St.3d 83

, 97,

752 N.E.2d 937

 (2001) (lead opinion), quoting United States v. Lochmondy,

890 F.2d 817

, 822
(6th Cir.1989). Further, the right to due process is violated only when there is a
“reasonable likelihood that the false testimony could * * * affect the judgment of
the jury.” Lochmondy at 822.
{¶ 273} Nicholson has not made those showings here. There is no evidence
that Detective Biegacki intentionally lied about knowing whether Nicholson asked
to leave the house on the night of the shooting. Moreover, Nicholson cannot
demonstrate that the statement was material; his self-defense claim was undermined
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January Term, 2024
by the physical evidence showing that he shot M.L. and Giselle in their backs as
they ran from him. Thus, whether Nicholson attempted to leave the house before
the shootings is irrelevant to any issue here. We reject his argument that the
prosecutor committed misconduct in this instance.
b. Improper use of leading questions
{¶ 274} Nicholson contends that the prosecutor “essentially testified” for
multiple witnesses by improperly asking leading questions on direct examination.
He contends that the prosecutor’s improper use of “yes” or “no” questions occurred
so frequently as to deny him due process. But Nicholson cites no authority
indicating that the use of a yes-or-no-question format on direct examination is per
se improper, and this court declines to adopt such a rule now. Certainly, “[w]hether
a question may be answered ‘yes’ or ‘no’ is not the correct criteria for determining
whether they were leading questions.” State v. Oteng, 10th Dist. Franklin No.
14AP-466,

2015-Ohio-1231

, ¶ 43. Rather, “[a] leading question is ‘one that
suggests to the witness the answer desired by the examiner.’ ” State v. Diar,

120 Ohio St.3d 460

2008-Ohio-6266

900 N.E.2d 565

, ¶ 149, quoting 1 McCormick,
Evidence, Section 6, at 19 (5th Ed.1999).
{¶ 275} A trial court has discretion to permit leading questions on direct
examination. Id.; see also Trimble,

122 Ohio St.3d 297

2009-Ohio-2961

911 N.E.2d 242

, at ¶ 266. However, a prosecutor commits misconduct when leading
questions pervade the trial in the face of a sustained objection. See Diar at ¶ 205.
{¶ 276} Nicholson avers that the most prejudicial examples of the state’s
improper leading questions happened during Polanco’s testimony, even after the
trial court told the prosecutor to “back off a little bit.” Although Nicholson
contends that the prosecutor improperly used leading questions to “testify” on
Polanco’s behalf about Nicholson’s prior threats to kill her and her children, he
identifies only a few questions he believes were improper. In one instance, after
establishing that Polanco had “contacted a domestic violence hotline,” the
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prosecutor asked, “Did there come a time on December 28, 2015, that Roberto
moved away?”      Polanco answered, “Yes.”       While the prosecutor’s question
improperly interjected a specific date to which Polanco had not testified, Nicholson
fails to show how this testimony prejudiced him.
{¶ 277} Nicholson contends that the state improperly led Polanco when it
asked, “At any point in time did he blame your children for the water bills?” But
Nicholson is incorrect; the question merely asked whether a circumstance had
existed. It did not suggest a particular answer and thus was not leading.
{¶ 278} Nicholson asserts that the “most egregious” example of improper
leading of a witness occurred during the following exchange:
[ASSISTANT PROSECUTOR]: Now, * * * [o]n March
18th of 2018, there was a situation at your house?
[POLANCO]: Yes.
[ASSISTANT PROSECUTOR]:              Let’s talk about that.
Were you working that day?
[POLANCO]: No.
[ASSISTANT PROSESCUTOR]: Was Giselle home that
day?
[POLANCO]: She was off work.
[ASSISTANT PROSECUTOR]: Was there an altercation
between Giselle and * * * Nicholson?
[POLANCO]: Yes.
[ASSISTANT PROSECUTOR]: All right, can you please
tell us what happened on March 21, 2018?
[DEFENSE COUNSEL]: Objection.
THE COURT: Overruled.
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January Term, 2024
[POLANCO]: Me and my kids were out [at the] grocery
store. Giselle ha[d] a day off. She left the machine washing her
clothes. And—
[ASSISTANT PROSECUTOR]: Had she put them in the
dryer?
[POLANCO]: Yes, she put them in the dryer and then we
left. When we came back, * * * Nicholson already had took her
clothes out of the washer—out of the dryer. It wasn’t dry all the
way through, and he put his own in the dryer.
None of the prosecutor’s questions in this exchange were impermissibly leading.
For instance, the two directive but nonsuggestive questions interjecting dates were
not leading. Moreover, defense counsel objected to only one of the questions, and
the trial court was within its discretion to allow that question. Nicholson also fails
to demonstrate any prejudice flowing from the trial court’s decision overruling the
objection.
{¶ 279} Nicholson points to another passage he alleges includes improper
leading questions, during which no objection was raised to the prosecutor’s
questions. The prosecutor asked Polanco about the moments before the shootings:
[ASSISTANT PROSECUTOR]: Okay. And what did you
tell [M.L.] to do?
[POLANCO]: I told him—because I heard Giselle was
pulling in the driveway. I told him to call Giselle and tell her not to
come inside.
[ASSISTANT PROSECUTOR]: Okay. Did Giselle come
inside?
[POLANCO]: No. She didn’t have a chance.
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[ASSISTANT PROSECUTOR]: Okay. And so at that
point, when you told [M.L.] to leave the house, where was * * *
Nicholson?
Nicholson contends that the last question in that sequence was “problematic”
because Polanco did not testify that she had told M.L. to leave. However, Polanco
had in fact testified that M.L. “called the police. When M.L. called the police * * *
[she] told [M.L.]: Let’s go.” Thus, no error occurred.
{¶ 280} Nicholson’s claim that the prosecutor persisted in leading Polanco,
even after the trial court sustained his objection, is inaccurate: each defense
objection contained in the quoted passages was properly overruled. Thus, this
prosecutorial-misconduct claim lacks merit.
c. Assertions not supported by the evidence
{¶ 281} Nicholson argues that the state committed misconduct during its
opening statement by making four statements he alleges the state “knew” would
not be supported by evidence adduced at trial. However, defense counsel did not
object to the prosecutor’s opening statement and has thus forfeited all but plain
error regarding this claim. See Crim.R. 52(B); Diar,

120 Ohio St.3d 460

, 2008-
Ohio-6266,

900 N.E.2d 565

, at ¶ 139.
{¶ 282} Nicholson fails to show plain error. Opening statements serve to
inform the jury about the nature of the case and to outline the facts that each party
intends to prove. See Maggio v. Cleveland,

151 Ohio St. 136

84 N.E.2d 912

(1949), paragraph one of the syllabus.        And unless it appears that counsel
“deliberately attempt[ed] to influence and sway the jury by a recital of matters
foreign to the case,” remarks made during opening statements cannot form the basis
of a misconduct claim.

Id.

at paragraph two of the syllabus.
{¶ 283} The trial court instructed the jurors that “[o]pening statements are
not evidence. Opening statements are what the attorneys believe that the evidence
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January Term, 2024
will establish, so please keep that in mind,” and that “[w]henever reference is made
to evidence, we’re referring to the testimony of the witnesses from the witness stand
and any documents or other tangible objects which may be admitted as exhibits.”
Moreover, each of the statements Nicholson complains about was supported by the
evidence.
{¶ 284} First, the state told the jury that “Nicholson had a habit of extending
his hands. * * * And when that would happen, [Polanco’s] children would try to
intercede to protect their mother.” Nicholson alleges that this statement presented
information that the prosecutor knew the evidence would not prove. The
prosecutor’s description of Nicholson’s pre-offense conduct toward Polanco as a
“habit” does not suggest that the prosecutor intended to mislead the jury. To the
contrary, the state presented evidence that Nicholson physically assaulted both
Polanco and Giselle on occasions prior to the charged offenses.
{¶ 285} The record also supports the prosecutor’s statement that M.L. and
Giselle had tried to intercede in Nicholson’s mistreatment of Polanco. Polanco
testified that Giselle was so alarmed about Polanco’s safety on one prior occasion
that Giselle tried to intercede even though Nicholson threatened to shoot Giselle
through the bedroom door. Evidence also showed that M.L. interceded on behalf
of Giselle and Polanco in March 2018, when Nicholson was angry about Giselle’s
laundry. Finally, the evidence showed that it was M.L.’s attempt to protect his
mother from Nicholson on September 5, 2018, that led to his and his sister’s deaths.
Thus, the prosecutor’s comment that M.L. and Giselle “would try to intercede to
protect their mother” was supported by the evidence. No misconduct occurred.
{¶ 286} Second, Nicholson claims that the prosecutor’s assertion that
Polanco had told her realtor that the realtor could view the house only when
Nicholson was not present was knowingly false. The prosecutor’s opening
statement indicated that Polanco decided around July 2018 that she wanted
Nicholson to move out of the house. The prosecutor added that in September 2018,
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SUPREME COURT OF OHIO
Nicholson was still there and had said he was not leaving. Polanco wanted to sell
her house, but the realtor would not engage without coming to the house first. But
Polanco did not want the realtor to come to the house while Nicholson was there
because “things [would] go south.”
{¶ 287} The state presented evidence to support these assertions. The
realtor, Nanci Crystal, testified that she received a voicemail message from Polanco
in July 2018 expressing her interest in selling the house. Crystal testified that she
later spoke to Polanco by phone but that she had preferred to meet Polanco in
person.
{¶ 288} The state presented ample evidence that Nicholson knew that
Polanco wanted him to move out and that he was unwilling to do so. Supporting
evidence included text messages from Nicholson to Polanco describing how he felt
about moving out. Polanco also testified that she had tried to talk to Nicholson
about moving out but that he “got really angry” and told her he would not leave
“because that was his house.” And he told Polanco that if she ever left with M.L.
and Giselle, she “w[ould] regret it.” In short, the state presented evidence to support
its assertion that Polanco had worried that things would “go south” if a realtor came
to the house when Nicholson was there.
{¶ 289} Third, Nicholson contends that the state improperly claimed that he
told Polanco in the moments after the shootings that she would “need to watch [her]
kids die, and suffer what [she] made [him] suffer.” But even assuming that the
prosecutor’s statement was improper, Nicholson must show that the statement
prejudicially affected his substantial rights. See Smith,

14 Ohio St.3d at 14

470 N.E.2d 883

. We decline to hold that this isolated comment during the prosecutor’s
opening statement prejudiced Nicholson’s substantial rights. No plain error
occurred.
{¶ 290} Last, Nicholson challenges portions of the prosecutor’s opening
statement regarding Marshall’s (Polanco’s ex-boyfriend’s) role in the events of
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January Term, 2024
September 5, 2018, alleging that those remarks were not supported by the facts.
The prosecutor asserted that after Polanco told Nicholson that Marshall had texted
her, Nicholson got “really mad.” The prosecutor stated: “The evidence will show
that once [Nicholson] hung up the phone with [Marshall], [Nicholson] started
smacking her around. He started choking her. He started screaming vulgarities at
her.”
{¶ 291} Nicholson argues that the evidence did not show that he “smack[ed
Polanco] around” in the bedroom. But Polanco testified that Nicholson “grabb[ed]
[her] from [her] neck, throwing [her] in the bed,” and that “[h]e was strangulating
[her].” The prosecutor’s statement was not error; the evidence did show that
Nicholson assaulted Polanco on September 5, 2018.
{¶ 292} Based on the foregoing, we reject this aspect of Nicholson’s 15th
proposition of law.
d. Angel Nicholson’s testimony
{¶ 293} Nicholson contends that on direct examination, the state treated his
mother, Angel Nicholson, as a hostile witness without having established a proper
foundation for doing so and then improperly impeached her testimony on redirect
examination. He also argues that the prosecutor erroneously attributed to
Nicholson his mother’s comment that Nicholson had been living in a “hellhole.”
{¶ 294} Angel testified for the state during the trial phase. During Angel’s
direct examination, the prosecutor asked whether Nicholson had asked her to help
him look for apartments. Before Angel answered, the prosecutor interjected: “Are
you looking at me [or defense counsel] over there?” Defense counsel did not object,
and Angel responded that she was “just peering the room.” During further
questioning, the following exchange occurred:
[ASSISTANT PROSECUTOR]: Okay. Who tried to set
[Nicholson] up?
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SUPREME COURT OF OHIO
[ANGEL]: [Polanco].
[ASSISTANT PROSECUTOR]: Okay. So let’s talk about
that—why are we looking—I’m right here.
[DEFENSE COUNSEL]: Objection. I don’t know why the
prosecutor is doing this.
[ANGEL]: Ma’am, as I stated here earlier, I’m looking at
you. I’m trying to. I’m trying to peer through my glasses and focus.
These are not my normal glasses.
***
[ASSISTANT PROSECUTOR]: No. You don’t need to
apologize. I’m just wondering if we’re looking, you know—
[ANGEL]: No, no. I’m trying to follow you. Sorry.
{¶ 295} At a subsequent sidebar, defense counsel asserted that the
prosecutor’s handling of Angel’s direct examination was “hostile * * *, and [that
the prosecutor was] in attack mode and leading a number of her questions.”
Defense counsel argued that this was improper because the state had called Angel
in its case-in-chief: “If she wants her as their witness, then she’s got to treat her as
their witness. Don’t beat her up.” The trial court overruled the objection but
warned the prosecutor against leading Angel excessively. Because Angel was
“affiliated with [Nicholson],” however, the trial court offered the state “some
leeway on * * * asking leading questions, but not entirely.”
{¶ 296} On redirect examination, the prosecutor tried to impeach Angel by
asking whether she could remember several statements Nicholson made when he
was talking on the phone with her and Lieutenant Vargo following the shootings.
However, Angel could not recall any specific statements. The following exchange
then occurred:
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January Term, 2024
[ASSISTANT PROSECUTOR]: All right. Do you
remember when he said: When you do so much for a woman, I gave
[Polanco] my all. How * * * do you love me? How can you
continually allow me to be spit on, disrespected, downgraded? I pay
the bills here. As a man, you’re like, * * * where’s my respect?
Do you remember him saying that?
[ANGEL]: I don’t recall that, ma’am.
[ASSISTANT PROSECUTOR]: Okay. So at no time,
[Angel], during the course of the conversation that was the three-
way between you, Lieutenant Vargo, and [Nicholson]—
[ANGEL]: Yes, ma’am.
[ASSISTANT PROSECUTOR]: [Did Nicholson] tell you
or Lieutenant Vargo that—
Eventually, the trial court sustained defense counsel’s objection to this line of
questioning and ordered the state to cease questioning the witness because it was
“impeaching her now.”
{¶ 297} The prosecutor’s questioning of Angel was not misconduct. As one
of the prosecutors pointed out, “there is no rule saying that you can’t be unfriendly
or stern towards your own witness.” Moreover, the trial court sustained defense
counsel’s objection to the prosecutor’s attempt to impeach Angel on redirect
examination and admonished the prosecutor to let Angel answer fully and to limit
the use of leading questions. Nicholson fails to persuasively argue that the
testimony prejudiced him.
{¶ 298} Nicholson also argues that the state improperly asked Angel, “So
during the course of your conversations with the police officer, you indicate[d] to
the police officers: That is a hellhole in there that he was living in. He doesn’t want
to hurt anybody else.” (Emphasis added.)
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{¶ 299} Officer Jarzembak’s body camera recorded a heated interaction
between Angel and Officer Cramer, during which Officer Cramer said to Angel:
“People’s lives are still in danger because there’s an unknown factor going on here.
We don’t know what he’s thinking.” Angel told Officer Cramer that she “kn[ew]
what he [was] thinking * * * that’s a hellhole that he was in.” The prosecutor asked
Angel whether Nicholson had wanted “to move out of the hellhole he was in.”
Whether the “hellhole” comment was something that Nicholson said to his mother
is irrelevant; the jurors viewed body-camera footage on which Angel could be heard
making that statement. Nicholson has not identified any misconduct in this
instance, and we reject this aspect of his prosecutorial-misconduct claim.
e. Statement that gunshots could be heard in 9-1-1 recording
{¶ 300} Nicholson also argues that the prosecutor impermissibly played a
9-1-1 recording during its closing argument and stated that gunshots could be heard
toward the end of the recording. He also contends that the state should have
presented an audio expert to identify the sound at the end of the recording. Defense
counsel did not object to this portion of the state’s closing argument at trial.
{¶ 301} Defense counsel not only failed to object but stated during closing
argument that the sound in the recording was “subject to interpretation.” Playing a
recording that was admitted into evidence is not prosecutorial misconduct,
especially when the parties agreed that the jury could decide what the sounds in the
recording were.
3. Allegations of mitigation-phase misconduct
{¶ 302} Nicholson contends that the state engaged in misconduct when it
(1) improperly cross-examined one of Nicholson’s witnesses, (2) referred to
“unsubstantiated claims” by Lauren Thomas, Nicholson’s former girlfriend, (3)
referred to his prior abusive conduct against Polanco, (4) mischaracterized the
mitigating factor under R.C. 2929.04(B)(5) (lack of a significant history of criminal
convictions), and (5) made improper assertions during closing arguments. Most of
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the conduct challenged in this claim was either successfully objected to or occurred
without objection. Nicholson has forfeited these claims, absent plain error, except
as noted below. See State v. Johnson,

46 Ohio St.3d 96

, 102,

545 N.E.2d 636

(1989).
a. Cross-examination of Donna Kain
{¶ 303} First, Nicholson alleges that the prosecutor’s cross-examination of
Nicholson’s maternal aunt, Donna Kain, constituted misconduct. Nicholson argues
that three parts of the cross-examination were inflammatory and prejudicial.
{¶ 304} The prosecutor had the following exchange with Kain:
[ASSISTANT PROSECUTOR]: All right. You’ve
indicated to this jury that your brother-in-law [Nicholson’s father,
Robert Nicholson Sr.] is * * * the worst human being that God
created, right?
[KAIN]: I wouldn’t say the worst human being God created,
but he’s not the nicest person you ever want to meet.
[ASSISTANT PROSECUTOR]: Okay. But he is so bad
that he created this. That’s what you want the jury to believe?
A defense objection to this questioning was sustained.
{¶ 305} Next, Nicholson complains that the prosecutor asked Kain why she
never reported the abuse of Nicholson by his father. Specifically, during Kain’s
cross-examination, the prosecutor stated: “You consider yourself to be a loving,
caring individual, but did you ever call 696-KIDS that your nephews were being
beaten, your sister was being thrown out of a window?” Defense counsel failed to
object, and Kain responded, “No,” but said that she had told her and Angel’s father,
who was a police officer, about [Nicholson’s father’s] physical abuse. Defense
counsel did not object.
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{¶ 306} A prosecutor has greater leeway during cross-examination to
explore issues raised during direct examination, as long as she has “a good-faith
belief that a factual predicate for the question exists.” State v. Gillard,

40 Ohio St.3d 226

533 N.E.2d 272

 (1988), paragraph two of the syllabus, abrogated on
other grounds by State v. McGuire,

80 Ohio St.3d 390

, 402,

686 N.E.2d 1112

(1997). Nicholson’s mitigation strategy focused on the extraordinary physical and
emotional abuse he had suffered at the hands of his parents. Thus, the prosecutor’s
cross-examination questioning regarding why Kain never contacted the state
agency responsible for investigating claims of child abuse was not improper.
{¶ 307} The prosecutor then asked Kain about the allegations that
Nicholson’s father had been physically abusive. The prosecutor tried to discredit
Kain’s testimony by asking her to admit that Angel had worked every day and
stayed married to Robert Sr. and that they had been coming to court together since
the trial started. Kain agreed that Angel and Robert Sr. were both responsible for
their children. She opined that Angel and Robert Sr. had “completely failed” their
sons “[b]y keeping the domestic, by fighting and arguing and choking and running
down the street with rifles and guns, they failed them. I can say they failed them.
I’m a witness.” The following exchange then occurred:
[ASSISTANT PROSECUTOR]: Ma’am, you weren’t there,
were you?
[KAIN]: Oh, believe me. I would come to the home—
[ASSISTANT PROSECUTOR]: The question is—
THE COURT: Let her finish.
Nicholson contends that this exchange exemplifies the prosecutor’s use of “loaded
questions” containing “multiple negative inferences.” But he has not established
that the prosecutor’s questioning of Kain was improper.
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{¶ 308} Finally, Nicholson contends that the following questions were “the
most egregious”:
[ASSISTANT PROSECUTOR]: So, Mrs. Kain, you would
agree with me that a woman who loves her children stays with her
abuser?
[KAIN]: Yeah.
[ASSISTANT PROSECUTOR]: Even to the point that her
kids get killed because she stayed with her abuser, right?
The trial court sustained a defense objection, and Kain then said: “I’m not going to
answer that. That is not fair. That is mean. That is not fair.” She elaborated:
I feel for that mother. I feel for that mother. I feel for that
mother. My heart goes out to that mother. That is so unfair for you
to say something like that. That mother buried two of her children.
How dare you say something like that? That is not correct. That is
so—that is so disrespectful.
{¶ 309} For relief to be granted, the misconduct must have “ ‘so infected
the trial with unfairness as to make the resulting conviction a denial of due
process.’ ” Darden, 477 U.S. at 181,

106 S.Ct. 2464

91 L.Ed.2d 144

, quoting
Donnelly, 416 U.S. at 643,

94 S.Ct. 1868

40 L.Ed.2d 431

. Here, although the
prosecutor’s treatment of Kain was harsh, the prosecutor’s conduct did not rise to
the level of a denial of due process, especially since the trial court immediately
sustained defense counsel’s objection.
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b. References to prior conduct
{¶ 310} Nicholson also argues that the state committed prejudicial
misconduct when it referred during the mitigation phase to allegations of
Nicholson’s prior abusive behavior.
{¶ 311} First, Nicholson objects to the prosecutor’s cross-examination of
Dr. John Fabian, a forensic and clinical psychologist called by the defense. Dr.
Fabian’s report on Nicholson contained summaries of historical documents he had
reviewed for his evaluation of Nicholson. The following statement from Dr. Fabian
was included in his report: “I saw an interview with Lauren Thomas and a written
statement from 11/29/2018 with Detective Biegacki.          She advised that * * *
Nicholson did threaten her [with] the gun in the past, and told her he would kill her.
She also stated that during an argument in the past that he punched holes in the
walls of their apartment.” During the state’s cross-examination of Dr. Fabian, the
prosecutor inquired whether he had asked Nicholson “any questions regarding
[Nicholson’s] attitude towards women.” And within this line of questioning, Dr.
Fabian stated that Thomas had “said that [Nicholson] threatened her, I think with a
gun, in the past. So there was, you know—or he had punched holes in the walls.
So [Nicholson] had certainly problems with his temper.”
{¶ 312} Nicholson argues that it was improper and prejudicial for the
prosecutor to use Dr. Fabian’s report as evidence of Nicholson’s character. He
maintains that the state was permitted to present evidence during the mitigation
phase of only “the nature and circumstances of the events that took place on
September 5, 2018.” But this was fair cross-examination because the defense had
placed Dr. Fabian’s conclusions and his report into evidence. See State v. Greer,

39 Ohio St.3d 236

, 253,

530 N.E.2d 382

(1988) (“once lawfully inserted into the
sentencing considerations, such information is subject to fair comment by both
parties”). Therefore, we reject this claim of prosecutorial misconduct.
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c. Misrepresentations regarding R.C. 2929.04(B)(5)
{¶ 313} Nicholson argues that the prosecutor improperly described the
R.C. 2929.04(B)(5) mitigating factor, which is “[t]he offender’s lack of a
significant history of prior criminal convictions and delinquency adjudications.”
The state argued during mitigation-phase closing arguments that the jury should not
assign any mitigating weight to Nicholson’s lack of criminal history because “[h]e
should have been in prison the first time that he pointed a gun at Lauren Thomas or
that he laid a hand on * * * Polanco.”
{¶ 314} We have consistently granted prosecutors wide latitude during
closing arguments. Contrary to Nicholson’s suggestion, the state did not run afoul
of the Constitution when it argued that the jury should not assign significant weight
to Nicholson’s lack of a criminal history. See Greer at 253 (“It is ludicrous to assert
* * * that the jury is to be carefully fed only that information which reflects
positively upon [an] appellant. As they share in the trial court’s function, the jurors
require access to the wide range of information which the function requires”).
Accordingly, no misconduct occurred.
d. Remarks about mitigating factors not raised by the defense
{¶ 315} Nicholson also contends that the prosecutor made improper
mitigation-phase closing arguments about mitigating factors that Nicholson did not
raise. Nicholson points to the prosecutor’s statement that “[m]itigation is usually
not something that you have to do. It’s a fact about who you are. You were born
with this disorder; you were born into this situation; your IQ is at this level.”
Contrary to Nicholson’s claims, the prosecutor did not state that these mitigating
factors pertained to Nicholson; they were merely examples of mitigating factors.
Therefore, no prosecutorial misconduct occurred.
e. Cumulative misconduct
{¶ 316} Finally, Nicholson urges this court to consider the cumulative
impact of the alleged prosecutorial misconduct. However, Nicholson has not
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identified any prosecutorial misconduct that deprived him of a fair trial. Thus, we
reject Nicholson’s 15th proposition of law.
P. Ineffective assistance of counsel during the trial phase
{¶ 317} In his 16th proposition of law, Nicholson asserts that defense
counsel provided ineffective assistance during the trial phase. This proposition
includes multiple instances of alleged ineffective assistance, which we address in
the order in which they appear in the trial-phase record.
{¶ 318} To establish ineffective assistance, Nicholson must show (1) that
defense counsel’s performance was deficient, i.e., that counsel’s performance fell
below an objective standard of reasonable representation, and (2) that counsel’s
deficient performance prejudiced him, i.e., that there is a reasonable probability that
but for counsel’s errors, the proceeding’s result would have been different. See
Strickland v. Washington,

466 U.S. 668

, 687-688, 694,

104 S.Ct. 2052

80 L.Ed.2d 674

 (1984); State v. Bradley,

42 Ohio St.3d 136

, 142-143,

538 N.E.2d 373

 (1989);
see also State v. Kirkland,

160 Ohio St.3d 389

157 N.E.3d 716

,
¶ 78. “A reasonable probability is a probability sufficient to undermine [the
court’s] confidence in the outcome.” Strickland at 694; see also Bradley at 142.
1. Failure to exercise a peremptory challenge
{¶ 319} Nicholson argues that defense counsel should have used
peremptory challenges to excuse prospective juror Nos. 16 and 43. He contends
that both jurors expressed extreme pro-death-penalty views on their questionnaires,
which he says disqualified them from this case. Further, Nicholson maintains that
after defense counsel unsuccessfully challenged prospective juror No. 16 for cause,
counsel failed to conduct any “meaningful inquiry” of the prospective jurors during
general voir dire. Prospective juror No. 16 ultimately sat on Nicholson’s jury as
juror No. 5.
{¶ 320} Defense counsel used all six peremptory challenges available to
Nicholson. And because counsel occupies the best position by which to “observe
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January Term, 2024
the jurors first hand,” “[d]ecisions on the exercise of peremptory challenges are a
part of trial strategy.” Trimble,

122 Ohio St.3d 297

2009-Ohio-2961

911 N.E.2d 242

, at ¶ 99. Nicholson cannot establish that his counsel’s performance was
deficient.
2. Failure to introduce certain legal concepts
{¶ 321} Nicholson complains that defense counsel abdicated their duty to
present to the jury the legal concepts of self-defense, prior calculation and design,
and voluntary manslaughter during voir dire, their opening statement, and closing
arguments. He argues that “no reasonable capital counsel would omit these critical
concepts in their opening statements,” voir dire, or closing arguments, “especially
where, as was the case here, defense counsel knew” that the state was going to
present substantial evidence on the issues in its case-in-chief.
{¶ 322} The record demonstrates that defense counsel’s voir dire was
articulate and that counsel were aware of the potential for juror confusion on the
concepts of mitigation, aggravating circumstances, and the process for weighing
the two. Given the overwhelming evidence that Nicholson did not act in self-
defense and that he purposely killed M.L. and Giselle with prior calculation and
design, defense counsel’s performance during voir dire was not deficient. Defense
counsel likely decided that their strategy of sparing Nicholson’s life would not be
served by educating the jurors on concepts that would be explained by the trial
court. See State v. Davis,

116 Ohio St.3d 404

2008-Ohio-2

880 N.E.2d 31

, ¶ 66.
3. Failure to object to misstatements about the indictment
{¶ 323} Nicholson contends that defense counsel failed to object to
“repeated erroneous statements” by the trial court and the state with respect to the
number of aggravated-murder counts in the indictment. But defense counsel did
object to the continued misstatements. Thus, Nicholson cannot establish deficient
performance.
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SUPREME COURT OF OHIO
4. Failure to object to gruesome photographs and videos
{¶ 324} Nicholson next contends that defense counsel failed to object to the
admission of gruesome and cumulative photographs and video footage during the
trial phase. As explained under our analysis of Nicholson’s fourth proposition of
law, the trial court did not err by admitting this evidence, so defense counsel was
not ineffective for failing to object to the evidence.
5. Failure to impeach Polanco’s testimony
{¶ 325} A significant portion of the state’s case against Nicholson included
text messages between Nicholson and Polanco, which were extracted from their
cellphones by BCI analyst Natasha Branham.               Branham produced a report
analyzing the extracted data from multiple cellphones.
{¶ 326} Nicholson contends that defense counsel should have used these
exhibits to impeach Polanco’s direct-examination testimony.            Specifically,
Nicholson asserts that had counsel asked Polanco about certain text messages that
allegedly demonstrated their “affectionate and loving” relationship and the lack of
tension between Nicholson and M.L. and Giselle, the jury would not have convicted
him of aggravated murder.
{¶ 327} Nicholson’s argument, however, fails to satisfy the first prong of
Strickland,

466 U.S. 668

104 S.Ct. 2052

80 L.Ed.2d 674

. Highlighting text
messages from Nicholson containing affectionate or loving language would not
undermine the probative value of the many text messages demonstrating
Nicholson’s view that M.L. and Giselle were destroying his relationship with
Polanco.
6. Failure to object to leading questions
{¶ 328} Defense counsel repeatedly objected to the state’s examination of
various witnesses on the basis of improper leading questions. Nicholson contends
that had counsel objected, even just more often, the result of the trial phase would
have been different. Counsel’s failure to object more frequently to such questions
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January Term, 2024
did not constitute ineffective assistance. See Jackson,

92 Ohio St.3d at 449

751 N.E.2d 946

, citing Staff Note, Evid.R. 611(C).
7. Failure to impeach the state’s rebuttal witness
{¶ 329} Nicholson further argues that his counsel rendered ineffective
assistance by failing to impeach Lieutenant Vargo, who testified during the state’s
case-in-chief and as a rebuttal witness about his phone conversation with Nicholson
during the standoff following the shootings. According to Lieutenant Vargo,
Nicholson did not mention self-defense during the conversation or say that Giselle
or M.L. had retrieved Nicholson’s service gun from the trunk of his car or pointed
it at him. Nor did Nicholson say that Polanco struck him with a can of Lysol shortly
before the shootings.
{¶ 330} Nicholson argues that during defense counsel’s rebuttal cross-
examination of Lieutenant Vargo, defense counsel failed to ask whether Nicholson
discussed self-defense during their phone conversation. Nicholson points out that
his father can be overheard on Officer Cramer’s body-camera footage saying to
Nicholson: “If somebody jumped you, they’ll figure all of that out.” But this
statement does not provide enough information to surmise that Nicholson was
telling Lieutenant Vargo that he shot M.L. and Giselle in self-defense.
{¶ 331} Moreover,     Nicholson    overemphasizes     the   significance   of
Lieutenant Vargo’s rebuttal testimony and its relevance to his defense. There was
ample evidence supporting the jury’s finding that the state disproved Nicholson’s
self-defense claim beyond a reasonable doubt. Most importantly, the medical
examiner testified that M.L. was shot eight times, almost all in his back, and that
Giselle was shot four times, three times in the back. That testimony and the
supporting physical evidence disproves Nicholson’s claim that he acted in self-
defense: M.L. and Giselle were not facing Nicholson when he shot them.
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8. Failure to raise the affirmative defense of blackout caused by a
posttraumatic stress disorder (“PTSD”) dissociative episode
{¶ 332} Nicholson also claims that defense counsel rendered ineffective
assistance by failing to ask the trial court for a jury instruction on the “affirmative
defense of blackout caused by a PTSD dissociative episode.”
{¶ 333} Nicholson points to the statements he made to Lieutenant Vargo
soon after he killed M.L. and Giselle, in which he said that he had “blacked out,”
and to the report and potential testimony of Dr. Fabian. He argues that this evidence
would inspire any reasonable trial attorney to present evidence and request a jury
instruction on the affirmative defense of blackout. Nicholson explains that defense
counsel should have presented Dr. Fabian’s testimony supporting the blackout
defense during the trial phase instead of just using his testimony during the
mitigation phase, because when combined with Dr. Fabian’s testimony,
Nicholson’s statements that he had blacked out would have supported the jury’s
finding him “not guilty of most—if not all counts—with which he was charged.”
{¶ 334} To obtain a jury instruction on the blackout defense, Nicholson had
to present evidence that he shot and killed M.L. and Giselle while he was
unconscious, as in a blackout due to disease or injury. See State v. Ireland,

155 Ohio St.3d 287

2018-Ohio-4494

121 N.E.3d 285

, ¶ 1, 4, 6, 24-26 (lead opinion).
Thus, the blackout defense requires proof that the defendant was “unconscious” and
acted involuntarily during the offense, State v. Blanton,

2023-Ohio-89

206 N.E.3d 14

, ¶ 35-40 (2d Dist.), citing State v. Cutlip, 11th Dist. Lake No. 99-L-149,

2001 WL 687493

(June 15, 2001).
{¶ 335} The record contains insufficient evidence suggesting that
Nicholson had been unconscious and had involuntarily shot M.L. and Giselle.
Under these circumstances, trial counsel did not render ineffective assistance.
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9. Failure to limit the defense’s mitigation report
{¶ 336} Nicholson next argues that defense counsel should not have
disclosed Dr. Fabian’s report to the state without first redacting the pages that,
according to Nicholson, “purported [to be a] transcript of statements made by” him.
Like Nicholson claimed in his first and ninth propositions of law, he here contends
that counsel’s disclosure of the unredacted report prejudiced him because it
“apprised [the state] of the precise factual basis for [his] self-defense claim” and
allowed the state to “investigate * * * Nicholson’s version of events during the
weeks before trial.”
{¶ 337} First, Nicholson attaches significance to the fact that the report is
dated August 23, 2019, which was the deadline for the defense to disclose its expert
reports. Nicholson contends that based on the report’s date, “it can be surmised
that defense counsel did not meaningfully review this report before giving it to the
[s]tate, which was most certainly unreasonable.” He also complains that the report
contained a “ ‘legal history’ of this case, * * * includ[ing] a 5-page summary of the
items [Dr. Fabian] reviewed from [the Garfield Heights Police Department’s]
records and the Cuyahoga County Grand Jury Case Synopsis.” Nicholson argues
that competent counsel “surely would have objected” to a report that included
Nicholson’s “detailed account of the events of September 5, 2018 and [his] self-
defense claim.”
{¶ 338} However, Nicholson fails to show that defense counsel performed
deficiently with respect to Dr. Fabian’s report. The record contains little to no
direct evidence of defense counsel’s strategy or choices with respect to Dr. Fabian’s
report and testimony, so Nicholson can only speculate that counsel’s performance
was constitutionally deficient.
{¶ 339} The record undermines, rather than supports, Nicholson’s
argument. Defense counsel communicated with Dr. Fabian throughout 2019. In
May 2019, defense counsel told the trial court: “[We] would like to take the time
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to speak further with Dr. Fabian. [We] have both been in contact with Dr. Fabian
as recently as a week ago, and he’s still working through issues that he needs to
work through in order to properly evaluate [Nicholson].” And in August 2019,
defense counsel told the court that they had provided the state with expert reports
from Dr. Fabian; Dr. Travis Snyder, a neuroradiologist; and James Aiken, an expert
in correctional management. On this record, Nicholson cannot show that defense
counsel functioned below an objective standard of reasonable representation with
respect to the disclosure of Dr. Fabian’s report. See Strickland, 466 U.S. at 694,

104 S.Ct. 2052

80 L.Ed.2d 674

.
{¶ 340} Nicholson further contends that by “turning over to the [s]tate an
expert report that contained a detailed write-up” of his self-defense theory, defense
counsel gave the state “the opportunity to preempt specific points related to or
otherwise suggestive of his self-defense claim that would subsequently portray him
as a witness who was not credible.” But defense counsel had been ordered to
disclose all expert reports no later than 21 days before trial. Counsel did not
perform deficiently by disclosing Dr. Fabian’s report in compliance with the trial
court’s order.
{¶ 341} Nicholson also claims that the state “sought to impeach * * *
Nicholson with Dr. Fabian’s report by representing during the culpability phase of
trial that Dr. Fabian’s unverified synopsis of what * * * Nicholson told him was a
prior inconsistent statement * * * Nicholson made. But this does nothing to further
Nicholson’s ineffective-assistance claim. As Dr. Fabian testified and as explained
in his report, he asks a defendant about the current offense because it helps him
gain perspective on the defendant, and along with other tests and assessments, he
can then “provide an explanation as to what happened and why.”
{¶ 342} Nicholson has not established deficient performance by his
counsel, much less prejudice with respect to Dr. Fabian’s report, and thus he cannot
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show that his right to the effective assistance of counsel was denied during the trial
phase.
10. Cumulative trial-phase ineffective assistance of counsel
{¶ 343} Nicholson argues that at the very least, the cumulative effect of
defense counsel’s errors during the trial phase prejudiced him and that he is
therefore entitled to a new trial. The doctrine of cumulative error applicable to
claims of ineffective assistance of counsel asks whether counsel’s errors, when
viewed cumulatively, show “ ‘that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would be different’ ”
even though none of the errors individually warrant relief. Bradley, 42 Ohio St.3d
at 146-147,

538 N.E.2d 373

, quoting Strickland, 466 U.S. at 694,

104 S.Ct. 2052

80 L.Ed.2d 674

; see also State v. Howard,

2020-Ohio-3819

156 N.E.3d 433

, ¶ 85
(2d Dist.). However, because none of Nicholson’s “individual claims of ineffective
assistance has merit, he cannot establish a right to relief simply by joining those
claims together,” State v. Dean,

146 Ohio St.3d 106

2015-Ohio-4347

54 N.E.3d 80

, ¶ 296.
{¶ 344} For these reasons, we reject Nicholson’s 16th proposition of law.
Q. Ineffective assistance of counsel during the mitigation phase
{¶ 345} In his 17th proposition of law, Nicholson argues that defense
counsel were ineffective during the mitigation phase of the trial.
1. Failure to investigate or present significant evidence in mitigation
{¶ 346} Nicholson claims that defense counsel rendered ineffective
assistance in their use of Dr. Fabian’s report during the mitigation phase. Nicholson
also argues that counsel’s failure to “prepare and present significant mitigating
evidence of his sexual abuse history” amounted to ineffective assistance.
{¶ 347} Nicholson argues that defense counsel should have objected to the
trial court’s discovery order requiring the defense to disclose Dr. Fabian’s report to
the state before the trial phase. Crim.R. 16(K) requires the parties to exchange
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expert reports at least 21 days before trial, and the trial court issued an order
requiring the parties to do so. Thus, defense counsel did not perform deficiently by
complying with the rule and the court’s order. Had counsel not timely disclosed
Dr. Fabian’s report, the trial court could have excluded Dr. Fabian’s testimony. See
State v. Grate,

164 Ohio St.3d 9

2020-Ohio-5584

172 N.E.3d 8

, ¶ 142.
{¶ 348} Nicholson also contends that defense counsel should have retained
and used a child-sex-abuse expert during the mitigation phase and that the failure
to do so prejudiced him. However, whether to hire a specific type of expert for
mitigation is considered a strategic decision within counsel’s ambit as long as the
decision follows an adequate investigation. State v. Keith,

79 Ohio St.3d 514

, 536,

684 N.E.2d 47

(1997).
{¶ 349} Nicholson bases this argument on Dr. Fabian’s mitigation
testimony that “[a] child sex abuse expert could have been utilized in this case.”
When Dr. Fabian offered that opinion, the state was inquiring as to the scope of his
investigation. Dr. Fabian reported that he had interviewed Nicholson several times,
in addition to interviewing Nicholson’s parents, brother, and aunt. Dr. Fabian had
also reviewed Nicholson’s medical reports, his educational reports, his employment
records, police reports, “a lot of the discovery or evidence in th[e] case,” and expert
reports prepared by Dr. Snyder and Mary Ceci McDonnell, a licensed independent
social worker. Dr. Fabian also had phone discussions with Dr. Snyder and
McDonnell. During Dr. Fabian’s cross-examination, he testified that although
children-and-family-services records had been requested, none were provided.
{¶ 350} Dr. Fabian’s comment appears to be based on Nicholson’s self-
reporting during his interviews with Dr. Fabian. According to Dr. Fabian,
Nicholson “initially reported no history of sexual abuse as a youth” but eventually
admitted to having been sexually abused when he was five years old. Nicholson
had reported that a female cousin of his, aged about eight or nine, “was babysitting
him and told him to take off his clothes and kiss her.” Nicholson provided no
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additional, “more specific” details, and his mother was unable to corroborate his
memory.
{¶ 351} Nicholson also reported a second incident of sexual abuse to Dr.
Fabian. According to Dr. Fabian:
[Nicholson] reported that his best friend, I guess that they engaged
in sexual activity. And it’s difficult to, again, state the consensual
versus the abusive nature of it or how it affected him. But again,
there—I think there is some victimization here of [Nicholson].
And then some peculiar behaviors of, you know, dressing I
think in his mother’s clothes on occasion that he did not want to talk
to me about. Okay?
And so he talked about—again, same paragraph—raped by
his best friend Ryan when he was 22 years of age. And then Ryan
moved away, and, you know, [Nicholson] was confused about the
situation. You know he didn’t endorse being overly traumatized by
it.
And it was very difficult to really assess or get him to process
this type of experience of traumatic event years later while we’re
looking at this type offense and this type of evaluation.
So I would say that there’s two periods and two experiences
of sexual abuse developmentally for him in childhood, around age 5
and then around age 22, I believe.
{¶ 352} The prosecutor asked Dr. Fabian if he had confirmed “that
[Nicholson] knew a person named Ryan China.” Dr. Fabian responded: “No, I
didn’t follow up on that. That is part of kind of the sexual abuse investigation that
we could have developed more in this case.” But Dr. Fabian testified that the
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information available to him did not support a diagnosis for any disorder related to
sexual abuse or gender dysphoria. On this record, Nicholson cannot establish that
defense counsel failed to adequately prepare for mitigation by not consulting a
child-sex-abuse expert.
{¶ 353} Nicholson’s counsel researched his background and presented
multiple witnesses who testified regarding his difficult childhood. Counsel
engaged four experts: Dr. Fabian, a mitigation expert, a prison-life expert, and a
neuroradiologist who interpreted a magnetic-resonance-imaging (“MRI”) scan that
Nicholson underwent in preparation for the mitigation phase. Counsel’s mitigation
theory was premised on extreme domestic violence occasioned by Nicholson’s
father against Nicholson, his mother, and his older brother, in combination with
neuroradiological evidence that Nicholson had suffered traumatic brain injury
(“TBI”). Based on this record, we hold that counsel’s mitigation investigation was
reasonable and that counsel made a strategic decision not to have a child-sex-abuse
expert testify.
2. Failure to request jury instructions on specific statutory mitigating factors
{¶ 354} Nicholson asserts that his counsel rendered ineffective assistance
by failing to object to the mitigation-phase jury instructions and failing to request
an instruction on the specific mitigating factors that Nicholson had raised.
{¶ 355} The United States Supreme Court has rejected the argument that
the Eighth and Fourteenth Amendments to the United States Constitution require
trial courts to provide capital juries with “express guidance on the concept of
mitigation, and to instruct the jury on particular statutorily defined mitigating
factors.” Buchanan v. Angelone,

522 U.S. 269

, 275-276,

118 S.Ct. 757

139 L.Ed.2d 702

 (1998). And a trial court does not err “by simply following the
statutory language and declining to instruct that particular evidence was a specific
mitigating factor.” State v. Goff,

82 Ohio St.3d 123

, 130,

694 N.E.2d 916

(1998).
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January Term, 2024
{¶ 356} Nicholson has not established that his counsel were ineffective for
failing to ask the trial court to instruct the jury on specific statutory and nonstatutory
mitigating factors. Indeed, defense counsel relied only on R.C. 2929.04(B)(7), the
catchall mitigating factor, in arguing for a life sentence during the mitigation phase.
Thus, we reject this aspect of Nicholson’s mitigation-phase ineffective-assistance
claim.
3. Failure to ensure that Dr. Fabian was a competent, well-prepared expert
{¶ 357} On direct examination, Dr. Fabian indicated that Nicholson had a
“perception that he was being threatened by” Polanco, M.L., and Giselle. When
counsel asked Dr. Fabian whether Nicholson had informed him of specific facts
about Nicholson’s state of mind leading up to and during the shootings, Dr. Fabian
stated:
Now, the facts you brought up that he had testified to about
perceiving they had a gun, * * * he’s not been fully consistent in his
stories, but he has reported they were—basically self-defense claim
with his testifying—testimony to you and in his discussion with me.
***
[I]t’s hard to say it was self-defense if these children had
injuries in what appeared to be a retreating type fashion.
Nicholson contends that Dr. Fabian would not have made this statement if counsel
had adequately prepared him to testify. He argues that “[n]o reasonable capital
counsel would have instructed their mitigation expert to testify about the
plausibility of defendant’s self-defense claim after it had been rejected by the jury.”
{¶ 358} Defense counsel was attempting to tie Nicholson’s statements
about the offenses to Dr. Fabian’s diagnoses regarding Nicholson’s mental health.
Indeed, Dr. Fabian opined that Nicholson is “more likely the kind of person that’s
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going to misperceive situations, feeling threatened when other people may not.”
He also described Nicholson as impulsive and quicker to anger than most people.
Given Dr. Fabian’s assessment of Nicholson, Dr. Fabian’s isolated statement about
Nicholson’s self-defense claim was less harmful than Nicholson suggests.
Nicholson has not established that he received ineffective assistance of counsel.
4. Failure to object to the state’s improper questioning and remarks during
mitigation
{¶ 359} Finally, Nicholson contends that defense counsel rendered
ineffective assistance by failing to object to the state’s remarks about his alleged
prior domestic abuse against Polanco and Thomas. He argues that “counsel’s
failure to object to the [s]tate’s repeated improper attempts to discount [his] lack of
a prior criminal record by offering irrelevant other acts evidence that had no
meaningful bearing on [the lack-of-criminal-history] statutory mitigating factor
thereby precluded the jury from giving this factor the attention and consideration it
deserved, to the detriment of [Nicholson].”
{¶ 360} During the state’s mitigation-phase closing argument, the
prosecutor stated:
[Nicholson’s] never been in trouble before. That’s an
interesting way of phrasing that. Right? He’s never been in trouble
before. That’s the defense’s phrasing that they used over and over
again in this case. Not that he’s never done anything wrong before,
he’s never been in trouble before. Meaning he’s never been arrested
before; he’s never been convicted before.
Well, let’s talk about that for a second. Why has he never
been arrested before? Why has he never been in trouble before?
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The prosecutor referred to Polanco’s testimony about Nicholson’s threats to kill her
and M.L. and Giselle before arguing that the R.C. 2929.04(B)(5) mitigating factor
“is different. * * * [I]t has to be earned by a good lifetime of law-abiding behavior.”
The prosecutor continued:
And you should ask yourself, did the defendant earn this
mitigating factor? And, if so, what did he do to earn it, other than
the threats that * * * Polanco told you about?
He earned this mitigating factor through four years of
punches, and chokes, and bruises, and threats to kill her, kill her
children if she ever went to the police.
He earned this mitigating factor through four years of a reign
of terror that he imposed on * * * Polanco and her children that
stopped her from going to the police and turning him in a long time
before this happened.
And you know from Dr. Fabian’s testimony and from his
report that it’s not the first time that that’s happened either. That
this is a cycle. Because Dr. Fabian told you that he reviewed police
reports regarding [Nicholson’s] ex-girlfriend, Lauren Thomas. And
that * * * Thomas talked about a similar incident in which he
pointed a gun at her and threatened to kill her
***
So when you talk about the fact that [Nicholson] has never
been in trouble before, do not give him credit for that. Because the
reality is, he should have been in prison a long time before this
happened.
He should have been in prison the first time that he pointed
a gun at * * * Thomas or that he laid a hand on * * * Polanco.
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***
Do not give this mitigating factor any weight in this case.
Give it none whatsoever.
{¶ 361} Prosecutors have latitude to comment on facts in evidence, and a
prosecutor’s referring to a defendant’s other criminal acts (that did not result in
convictions) is not erroneous when the other acts are part of the defendant’s social
history. See State v. Slagle,

65 Ohio St.3d 597

, 612,

605 N.E.2d 916

 (1992) (“A
prosecutor can legitimately refer to the facts and the nature and circumstances of
the offense, to refute any suggestion they are mitigating or to demonstrate why
aggravating circumstances outweigh mitigating factors”).             Thus, the state’s
argument was not improper, and Nicholson has not shown that his counsel were
ineffective for failing to object to the state’s closing argument.
R. Denial of request for jury instruction on mercy as a mitigating factor
{¶ 362} In his 18th proposition of law, Nicholson argues that the trial court
erred by denying his pretrial motion for an instruction during the mitigation phase
on mercy.
{¶ 363} We have held that “mercy * * * is not a mitigating factor and thus
is irrelevant to sentencing.” State v. Lorraine,

66 Ohio St.3d 414

, 417,

613 N.E.2d 212

 (1993). Citing Kansas v. Marsh,

548 U.S. 163

126 S.Ct. 2516

165 L.Ed.2d 429

 (2006), and Kansas v. Carr,

577 U.S. 108

136 S.Ct. 633

193 L.Ed.2d 535

(2016), Nicholson argues that this court should reconsider its statements in
Lorraine about mercy not being a mitigating factor.           But we have recently
considered and rejected this same argument. See State v. Hundley,

162 Ohio St.3d 509

166 N.E.3d 1066

, ¶ 122; Ford,

158 Ohio St.3d 139

, 2019-
Ohio-4539,

140 N.E.3d 616

, at ¶ 362.
{¶ 364} Because Nicholson has presented no meritorious justification for
departing from this settled law, we reject his 18th proposition of law.
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January Term, 2024
S. Settled issues
{¶ 365} Nicholson’s      19th    proposition    of    law    challenges    the
constitutionality of Ohio’s death-penalty statutes, claiming that the statutes violate
international law and treaties to which the United States is a party. We have
previously rejected the same arguments. See, e.g., State v.

Thompson, 141

 Ohio
St.3d 254,

2014-Ohio-4751

23 N.E.3d 1096

, ¶ 279-280. We overrule Nicholson’s
19th proposition of law.
T. Cumulative error
{¶ 366} Nicholson argues that cumulative errors and omissions in his case
violated his constitutional rights. Under the doctrine of cumulative error, “a
conviction will be reversed when the cumulative effect of errors in a trial deprives
a defendant of a fair trial even though each of the numerous instances of trial-court
error does not individually constitute cause for reversal.” Powell,

132 Ohio St.3d 233

2012-Ohio-2577

971 N.E.2d 865

, at ¶ 223.
{¶ 367} As explained above, Nicholson’s trial presented few errors, and
none were prejudicial to Nicholson. The cumulative effect of any harmless error
does not warrant reversal of Nicholson’s aggravated-murder convictions or death
sentences.
IV. INDEPENDENT SENTENCE EVALUATION
A. Aggravating circumstances
{¶ 368} Each aggravated-murder count in the indictment included an
aggravating circumstance for a “course of conduct involving the purposeful killing
of or attempt to kill two or more persons,” R.C. 2929.04(A)(5). “In order to find
that two offenses constitute a single course of conduct under R.C. 2929.04(A)(5),
the trier of fact ‘must * * * discern some connection, common scheme, or some
pattern or psychological thread that ties [the offenses] together.’ ” (Ellipsis and
brackets added in Sapp.) State v. Sapp,

105 Ohio St.3d 104

2004-Ohio-7008

, 822
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N.E.2d 1239, syllabus, quoting State v. Cummings,

332 N.C. 487

, 510,

422 S.E.2d 692

 (1992).
{¶ 369} Nicholson killed M.L. and Giselle at the same time and in the same
place, so “the murders were directly linked in time and location,” State v.
Montgomery,

148 Ohio St.3d 347

2016-Ohio-5487

71 N.E.3d 180

, ¶ 159.
Additionally, Nicholson’s relationship with M.L. and Giselle was strained because
of his jealousy over their close relationship with Polanco. His threats typically
envisioned violence against all three of his cohabitants, providing the
“ ‘psychological thread,’ ” Sapp at syllabus, quoting Cummings at 510, tying the
murders together. Accordingly, the record demonstrates that Nicholson murdered
M.L. and Giselle as part of a single course of conduct.
B. Mitigating factors
{¶ 370} During the mitigation phase, the defense presented seven
witnesses: Angel, Robert Jr., Kain, Dr. Fabian, Aiken, Dr. Snyder, and McDonnell.
Dr. Fabian interviewed Nicholson for a total of about 15 hours and also interviewed
Angel, Robert Sr., and Robert Jr. Dr. Fabian also reviewed information obtained
by McDonnell, who gathered records regarding Nicholson’s educational,
employment, medical, criminal, and neuropsychological history.
1. Statutory mitigating factors, R.C. 2929.04(B)(1) through (6)
{¶ 371} Under R.C. 2929.04(B)(5), “[t]he offender’s lack of a significant
history of prior criminal convictions” is a mitigating factor. Prior to this case,
Nicholson had no record of criminal convictions or juvenile adjudications.
Historically, we have given significant weight to evidence presented under this
factor. See State v. Hand,

107 Ohio St.3d 378

2006-Ohio-18

840 N.E.2d 151

,
¶ 280. Yet in this case, as in Hand, the weight of this factor is diminished by the
evidence that Nicholson had previously abused Polanco (and likely his ex-
girlfriend, Thomas) and that he had intimidated Polanco, causing her to fear
contacting law enforcement. See

id.

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January Term, 2024
{¶ 372} The other mitigating factors set forth in R.C. 2929.04(B)(1)
through (6) are inapplicable. Dr. Fabian did diagnose Nicholson with several
mental-health disorders, but he did not testify that any of them deprived Nicholson
of the “substantial capacity to appreciate the criminality of [his] conduct or to
conform [his] conduct to the requirements of the law,” R.C. 2929.04(B)(3).
2. Other mitigating factors
{¶ 373} We must also consider “the nature and circumstances of the
offense, the history, character, and background of the offender,” R.C. 2929.04(B),
and “[a]ny other factors that are relevant to the issue of whether the offender should
be sentenced to death,” R.C. 2929.04(B)(7).
{¶ 374} Nicholson’s mitigation defense was principally based on his
history, character, and background, including his motor-vehicle-accident history
and history of brain trauma.
a. Nicholson’s upbringing
{¶ 375} Nicholson’s parents, Angel and Robert Sr., met when Angel was
15 years old and Robert Sr. was 18 years old. They married when their oldest child,
Robert Jr., was about ten years old and Nicholson was about one year old.
{¶ 376} According to McDonnell, Nicholson reported that his first memory
is from when he was about four or five years old. Nicholson told McDonnell that
he remembered punching a hole through a glass door because he was frustrated and
frightened by his parents’ fighting and that he thought if he broke a window, they
would stop fighting. McDonnell testified that Nicholson and Robert Jr. had
described a “childhood [that] was filled with violence and stress.” She testified that
the brothers “never felt safe because they never knew exactly when the fights
between their parents would start and they never knew when they would be
targeted.” She continued: “[B]oth boys witnessed screaming, fighting, * * * the
parents being violent towards each other, and also a lot of shaming, and yelling and
verbal abuse towards both boys, but particularly [Nicholson] from his father.”
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Robert Sr. would call Nicholson a “bitch,” a “pussy,” “stupid,” and a “waste of
space.”
{¶ 377} Robert Jr. testified that he and Angel had been severely abused by
Robert Sr. At some point, Angel left Robert Sr. in the middle of the night and
moved with Robert Jr. to California because of the domestic violence. After they
returned to Ohio, Kain became heavily involved in taking care of Robert Jr., who
often spent the summer with her.
{¶ 378} Robert Jr. testified that domestic violence occurred daily in the
home when Nicholson was a young boy. He described that when Nicholson was
about four years old, he watched as their “dad held [their] mother over the edge of
a couch and choked her” almost to the point of unconsciousness. Robert Sr.
verbally and physically abused the boys. Robert Jr. recalled being choked and hit
in the face with a box of nails, but he believed that Nicholson was primarily verbally
abused. Robert Jr. also told Dr. Fabian that Angel had initiated some of the
domestic violence.
{¶ 379} Robert Jr. testified that Nicholson was “his [father’s] everything”
and that Robert Sr. drove a wedge between the brothers. When Nicholson was
around nine or ten years old, Robert Jr. was preparing to depart for military training.
Robert Jr. recalled that his father would not let Nicholson come down the driveway
to say goodbye to Robert Jr. He explained that he and Nicholson continually
experienced that type of “division.”
{¶ 380} Robert Jr. testified that while growing up, he “had people who
believed in [him]” and that he, in contrast to Nicholson, “had some great
influences.” He testified that the biggest mistake he had made was “leaving”
Nicholson behind to grow up with his parents, saying that Nicholson had “had to
eat what [Robert Jr.] had to eat for quite some time.” Robert Jr. observed that
Nicholson did not have the same opportunity to escape the toxic home environment.
Dr. Fabian testified that according to Robert Jr., Nicholson’s parents did not want
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January Term, 2024
Nicholson to become a police officer or join the military; they were overprotective
and kept Nicholson “sheltered in this kind of dysfunction.”
{¶ 381} To Dr. Fabian, Robert Jr.’s statements were consistent with
Nicholson’s reluctance to discuss “the nuts and bolts of the toxicity of his * * *
family.” Robert Jr. told Dr. Fabian that in later years, Nicholson became “more
isolated, more depressed, ” and “flat angry, full of hate and depression.”
{¶ 382} Robert Jr. tried to spend time with Nicholson during the summers
when he was home from the military. Eventually, though, Robert Jr. noticed that
Nicholson had become very withdrawn and would not leave his room, even when
Robert Jr. came home for holidays. Robert Jr. described a photograph from his
wedding, saying he was struck by the “look of pain” on Nicholson’s face. He
commented that it was a look “that a child, a teenager, shouldn’t have.”
{¶ 383} Robert Sr. was an alcoholic, and Angel drank more and more as the
domestic violence increased over the years. Robert Jr. testified that he had “listened
to [Polanco’s] testimony and * * * listened to her saying increasing, increasing,
increasing. And literally [he was] watching the cycle, just listening to it increase,
increase, increase.” On cross-examination, Robert Jr. elaborated on how the
evidence at trial showed that the abuse cycle had “literally repeated itself from how
[he and Nicholson] grew up and the things that [he] saw, the things that [he]
witnessed.” He explained that the abuse had “carried itself into the unfortunate
incident that [they were] sitting [t]here today dealing with.”
{¶ 384} When asked whether Angel and Robert Sr. “appreciate[d] what
impact they[] had on [him] and [Nicholson],” Robert Jr. responded: “It took an act
of God himself to get my mother in here. My aunt was fully on board because * * *
she knows what really took place * * * the 40 years plus of secrets.” Robert Jr.
testified that his parents were in denial about the negative impact that their conduct
had had on him and Nicholson: “Denial? * * * I would say it’s almost an
understatement. We were taught not to ever say anything about what was going on
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in that house. You were told to keep quiet, and if you didn’t, other things
happened.” Robert Jr. said that Nicholson had never been convicted of a crime and
that Nicholson was Robert Jr.’s “voice of reason.”
{¶ 385} Kain testified that she had a close relationship with Nicholson,
which began when Nicholson was young. She testified that she and Angel had been
“very close” but that they “became very estranged when * * * [Angel] confided in
[Kain] * * * about the abuse.”
{¶ 386} After Kain learned that Robert Sr. was abusive to Angel, she
reached out to Nicholson and Robert Jr. and tried to support them as much as
possible. Kain had noticed how nervous the boys were, that they could not focus,
and that they were withdrawn. She testified that Robert Sr. had had “such a strong
hold on [Nicholson] that [Robert Sr.] wouldn’t let [Nicholson] * * * come over to
[Kain’s] home and spend any significant time [with her].”
{¶ 387} According to Kain, Robert Sr. drank heavily and was “an angry
person.” She testified that Nicholson and Robert Jr. saw “their mother being
choked[,] * * * strangled, * * * running down the street from weapons, * * * [and]
sleeping inside of a car.” Ultimately, there “was just so much violence between
[Nicholson’s parents] that they would drink and then * * * the kids didn’t matter at
that point.” According to Kain, Nicholson and Robert Jr. had hid the abuse and hid
inside the house.
{¶ 388} Kain testified that Angel would never allow Kain to take her to the
hospital. She reasoned that Angel and Robert Sr. had been “together for 40
something years. When * * * you are beaten, and you are basically told, I will kill
you—because he’s told her that. He’s even told her, I’ll kill the kids. Because I
believe that’s one of the reasons she stayed with him. * * * I fear for my sister’s
life.”
{¶ 389} Kain confirmed that Robert Sr. continues to abuse Angel, even up
to the day Kain testified. Kain further testified that Robert Sr. had a strong hold on
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January Term, 2024
both Nicholson and Angel, to the point that they have “not talked to [Kain] or * * *
been around family.” According to Kain, Robert Sr. tried to drive a wedge between
Nicholson and Robert Jr. and would say things to Nicholson like: “Your brother
don’t love you. Your brother thinks he’s this and that. He got a new house. He
got this and that. Just demean, just character assassinate [Robert Jr.]” When asked
to describe how Nicholson and his brother grew up, Kain testified: “Horrific.
Horrific. Abuse.” She stated that there “was so much abuse and so much
dysfunction in that house that [she thought Nicholson] probably thought [it] was
normal behavior.”
{¶ 390} Angel testified that she also grew up in a chaotic and violent
household in which she saw her stepfather abuse her mother and threaten her with
a gun. On one occasion, Angel’s mother decided that she did not want to be hit
anymore, so she fired a gun. Angel testified that her mother was trying to shoot
Angel’s stepfather, but the shot wounded Angel’s two-year-old sister, whom Angel
had been sheltering with her body.
{¶ 391} Angel did not share her entire family background with Dr. Fabian,
because “it [was] painful” and she was “not proud of it.” She indicated that the first
incident of violence in her marriage occurred soon after Robert Jr. was born and
her friends came to the house to see him. Because some of Angel’s friends were
men, Robert Sr. became jealous and walked out. When he returned, he started an
argument with Angel and “jumped on” her, even though she was still recovering
from childbirth. Another time, Robert Sr. accused Angel of “looking at his brother-
in-law” during a party. Robert Sr. wrestled her to the floor and tried to suffocate
her while Nicholson and Robert Jr. watched.
{¶ 392} Angel testified that at times, she and the children would sleep in
her car overnight “because [she] needed to get out of the house so that they wouldn’t
hear and see the fighting all the time. But they were there and they saw it. And
[Robert Sr.] * * * never respected [the] kids [and] * * * [h]e didn’t care.”
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According to Angel, Nicholson witnessed many incidents of domestic violence, and
the police were called at least once regarding the abuse.
{¶ 393} Angel testified that Robert Sr. had “mentally abuse[d]” Nicholson.
Nicholson “had some challenges” in elementary school, and one of his teachers
suggested that he be tested for attention-deficit/hyperactivity disorder (“ADHD”).
But according to Angel, Robert Sr. was against having Nicholson tested, so she did
not obtain treatment for Nicholson. Robert Sr. would berate Nicholson by calling
him “halfwits and things like that.” Angel testified that what Nicholson had
witnessed had a negative impact on him and that if she had left Robert Sr.,
Nicholson might have had a better life.
{¶ 394} Angel admitted that she physically abused Nicholson when he was
young. For example, she once “whooped” Nicholson with the vacuum-cleaner cord
when she was drunk. However, when Dr. Fabian tried to bring up the abuse
allegations with Robert Sr., he “could not recall more than one occasion in which
he physically abused and hit Angel.” And although Robert Sr. attended the trial,
he did not testify.
{¶ 395} McDonnell explained to the jury the difference between one-event
traumas, such as an airplane crash or a serious car accident, and “developmental
trauma,” which affects “the entire course” of a person’s development. She also
stated that when a person “grow[s] up with a particular set of events that are horrible
and [he or she has] no control over [those events], which is really the definition of
trauma, * * * [he or she] tend[s] to keep repeating those patterns [when] actually
trying to * * * make it different.” McDonnell testified that “unless there’s real
intervention in terms of mental health, it doesn’t change.”
b. Dr. Fabian’s report and testimony
{¶ 396} According to Dr. Fabian, Nicholson was cooperative but “was
protective of his parents and family * * * [a]nd * * * lacked insight into the
dysfunction within the family that * * * contributed to why he [was there], in part.”
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January Term, 2024
Dr. Fabian expressed his view that Nicholson’s inability to perceive the dysfunction
in his childhood home and the effect it had on him were major obstacles to
completing a thorough mitigation investigation.
{¶ 397} Dr. Fabian’s testimony and written report corroborated the family
history provided directly by Angel and Kain and indirectly by McDonnell. Dr.
Fabian found it “clear” that there was domestic violence in Nicholson’s family
history. According to him, there had been “a lot of physical and emotional abuse
and violence initiated by [the] father,” along with threats and intimidation. Dr.
Fabian testified that Angel had developed an addiction to alcohol and admitted to
physically abusing Nicholson when he was young.
{¶ 398} Dr. Fabian agreed “for the most part” with Robert Jr.’s description
of Angel and Robert Sr. as emotionally and mentally abusive. According to Dr.
Fabian, “the attachment between * * * a child and caregivers is quite critical,”
including “the immediate emotional, physical bonding, nurturance, love, affection,
that a youth has.” He testified that a child’s ability to “develop a connection with
[their] primary caregiver, both [parents], ideally, * * * kind of filters [their] view
of * * * other relationships throughout * * * life.” Dr. Fabian noted that attachment
disorder and attachment deficits are often “rooted in * * * trauma.”
{¶ 399} Dr. Fabian did not believe that Nicholson and Robert Jr. had been
neglected or lacked “basic necessities,” but he “question[ed] * * * the integrity of
the bonding between * * * [Nicholson] and his parents.” According to him, this
attachment deficit “paved the way” for Nicholson’s “problems in relationships
down the road.”
{¶ 400} Dr. Fabian recounted the multigenerational trauma on both sides of
Nicholson’s family. He observed that Robert Jr. had said that his parents were
decent providers and that the family never lacked food, clothes, or shelter. Dr.
Fabian also noted that although Nicholson’s parents were still married, their “toxic”
relationship damaged Robert Jr.’s and Nicholson’s development.
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SUPREME COURT OF OHIO
{¶ 401} Significantly, Dr. Fabian is the only defense witness who
interviewed Robert Sr. Dr. Fabian testified that Robert Sr. was “very emotional on
the phone” and “cried at different times” during the interview. According to Dr.
Fabian, Robert Sr. “choked up,” apparently because he never knew his biological
parents, and he told Dr. Fabian that his “mother gave [him] away to another lady”
who “lived in the same * * * apartment or duplex.” Robert Sr. said that his adoptive
parents abused alcohol and that his adoptive father was violent toward his adoptive
mother. According to Dr. Fabian, Robert Sr. acknowledged that he drank too much
and that his drinking had led “to some domestic issues.” Robert Sr. “talked more
about verbal than physical abuse * * * [and] denied physically assaulting Angel and
said he never hit his sons.” Dr. Fabian opined that Robert Sr. may have minimized
“his exact role in [the] domestic violence.” According to Dr. Fabian, under these
circumstances, a family member is “in defensive stance” and “often ha[s] not dealt
with these issues.”
{¶ 402} Dr. Fabian noted that Robert Sr. had corroborated Angel’s
statements about Nicholson’s childhood development. According to Dr. Fabian’s
report, Robert Sr. described Nicholson as “impulsive[,] * * * hyper, restless, and
overactive.” Robert Sr. also said that Nicholson had “problems with concentration
[and] distractibility.”
{¶ 403} Developmental trauma affected Angel’s childhood and upbringing
as well. According to Dr. Fabian, Angel never met her father and was raised by her
aunt. Records indicated that Angel’s “mother had * * * seven kids total from four
fathers. And she did have a stepfather. They were poor. And she talked about
living with her aunt ‘because [she could] be [her] mother’s sister’s husband’s
child.’ ” Dr. Fabian explained that the impact of multigenerational trauma
manifests itself in people who “often fall in the same cycles, even when they don’t
want to, that they kind of witnessed or experienced in their own childhood.”
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January Term, 2024
{¶ 404} Angel described specific acts of domestic violence committed by
Robert Sr., but in Dr. Fabian’s estimation, her stories were tempered. Angel
acknowledged that there were alcohol-fueled fights between her and Robert Sr.,
and she admitted that Nicholson and Robert Jr. saw some of the domestic violence.
At bottom, Dr. Fabian reported “[a] history of domestic violence and alcoholism
and dysfunction in both Angel and Robert Sr.’s lives that [led] them to do exactly
what they witnessed when they were kids.”
{¶ 405} Dr. Fabian administered a battery of psychological and
neuropsychological tests to Nicholson. The Wechsler Adult Intelligence Scale-IV
indicated that Nicholson has “a Full Scale IQ of 80,” which is in the 9th percentile
and borderline range, which is “basically mildly impaired.” Dr. Fabian testified
that Nicholson “struggled [with] verbal abstract reasoning skills” and had
“difficulties with social compensation and judgment” and “perceptual reasoning
skills.” In addition, Nicholson “had some more significant problems with mental
flexibility,” his memory was subpar, and he exhibited an impaired ability to process
information. Dr. Fabian’s testing indicated that Nicholson is “lower functioning”
and that he showed evidence of having ADHD. Dr. Fabian determined that
Nicholson “has some attention, working memory, [and] processing speed deficits,
and he’s got executive functioning deficits * * * [such as] problem solving * * *
and decision making tasks.”
{¶ 406} Dr. Fabian also administered the Personality Assessment Inventory
“to assess [Nicholson] for psychopathology, personality, and emotional
functioning.” Dr. Fabian noted that Nicholson “had a tendency to somaticize,
meaning he report[ed] a lot of physical complaints, medical complaints, aches,
[and] pains.” According to Dr. Fabian, Nicholson’s “results on the protocol
indicated that his Negative Impression Management score was elevated,” meaning
that “he was in significant psychological and emotional distress and it is likely a
cry for help type protocol.”
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{¶ 407} Dr. Fabian determined that Nicholson suffered from
“psychiatric/psychological, neurological and neurological/neuropsychological
deficits, impairments, and conditions that would compromise his emotional,
behavioral, and cognitive functioning at the time of a stressful and perceived
stressful and threatening event.” He diagnosed Nicholson with (1) mild
neurocognitive disorder due to TBI, (2) ADHD (which affected some of Dr.
Fabian’s cognitive testing of Nicholson), (3) PTSD related to childhood trauma and
the nature of the offenses for which he was being tried, (4) major depressive
disorder, recurrent and moderate without psychotic features, and (5) borderline
personality disorder with paranoid traits.
{¶ 408} Dr. Fabian explained that “neurodevelopmental disorders” are
“compromises in brain development, prenatal, at birth or even developmental years
before age 18.” Dr. Fabian determined that of Nicholson’s various
neurodevelopmental disorders, “ADHD is the most relevant” disorder, which he
explained is characterized by “inattention, impulsivity, and/or hyperactivity.”
{¶ 409} Dr. Fabian also diagnosed Nicholson with PTSD. He explained
that PTSD symptoms can be intrusive, such as frequent or repetitive nightmares of
prior traumatic events or “flashbacks, kind of a daydream during the day of
something that happened, you get caught in it, or you disassociate.” Nicholson told
Dr. Fabian that the major traumas that he experienced were his parents’ abuse and
his act of shooting M.L. and Giselle. Dr. Fabian opined that Nicholson
acknowledged his depression more during his evaluation than at the time of the
offenses because he had lacked insight into his own issues.
c. Neuropsychological testing
{¶ 410} The defense also presented the testimony of Dr. Snyder, who had
interpreted an MRI that Nicholson underwent in preparation for the mitigation
phase. Dr. Snyder’s report was admitted into evidence.
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January Term, 2024
{¶ 411} Using a PowerPoint presentation, Dr. Snyder pointed to white
“dots” on the MRI and told the jury that they represented “white matter lesions,”
which are “abnormal[,] especially in a 30-year-old.” According to Dr. Snyder, the
lesions were “consistent with head trauma * * * such as a mild TBI.” He testified
that “even though it’s called mild, the[se patients] can still have significant
symptoms and significant problems.”
{¶ 412} Dr. Snyder compared Nicholson’s MRI to those in two case studies
from peer-reviewed articles that examined the MRI results of a patient with white-
matter lesions in the frontal lobes. The state’s rebuttal expert, Dr. Richard Ryan
Darby, a neurologist at Vanderbilt University, suggested that Dr. Snyder had
intentionally cropped images from the literature to mislead the jury. Dr. Snyder
explained that he had done the cropping “to show the white matter * * * because
we’re just talking about white matter lesions here.” According to Dr. Snyder,
Nicholson’s MRI results were “very similar” to the results in the studies showing
frontal-lobe “shearing injur[ies].” A “shearing injury,” or “diffuse axonal injury,”
occurs “when there’s a forceful injury, typically a deceleration injury, or a blast
injury * * * [because] [i]t basically injures or breaks the tissue.” Dr. Snyder opined
that Nicholson’s “white matter [lesions] are * * * consistent with shearing injuries,
or diffuse axonal injuries.”
{¶ 413} Dr. Fabian’s report correlates with Dr. Snyder’s radiological
findings: Nicholson reported symptoms of frontal-lobe deficits, and Dr. Snyder
found six white-matter lesions in Nicholson’s frontal lobes. According to Dr.
Snyder, the correlation is also supported by available medical records (including a
prior computed tomography (“CT”) scan) and Nicholson’s history of head trauma
as reported and corroborated by Nicholson’s family members.
{¶ 414} Dr. Snyder testified that the human brain has five types of lobes:
frontal, parietal, temporal, occipital, and cerebellum. He explained that the volume
of Nicholson’s frontal lobe is in the 29th percentile, his parietal lobes are in the
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68th percentile, his occipital lobes are in the 39th percentile, his temporal lobes are
in the 53rd percentile, and his cerebellum is in the 86th percentile. After comparing
the volume of each area of Nicholson’s brain, Dr. Snyder opined that Nicholson’s
frontal lobe had “by far the lowest, in terms of volume” of the five lobes. And
according to Dr. Snyder, “the frontal lobe is where those white matter findings are.
It’s also the most common lobe of the brain to be involved in head trauma.” Also,
Dr. Snyder testified that Nicholson’s “cortical volumes are lowest in that region.”
Dr. Snyder concluded that “the key about this case is that his frontal lobes are
decreased as compared to the rest of the lobes.” According to Dr. Snyder, this
finding is “consistent with the head trauma and the white matter findings and all of
that.”
{¶ 415} Dr. Snyder further testified that contusions and hemorrhages in the
brain are uncommon and indicate severe trauma. He testified that when “you have
a patient that has hemorrhages and you scan them on MRI right after they have a
head injury, if you scan them later about 80 percent of those hemorrhages will
resolve. So you won’t see them.” Thus, Dr. Snyder explained, “It is certainly
possible that * * * Nicholson had hemorrhages at the time of his injuries.”
{¶ 416} Defense counsel asked Dr. Snyder to comment on a conclusion
offered by neuroradiologist Dr. Thomas Masaryk, who testified for the state, that
there was no clinical correlation for mild TBI. In response, Dr. Snyder testified
that he had reviewed the MRI and found evidence of trauma before he ever learned
of Nicholson’s history. Only after reviewing Dr. Fabian’s “in depth review of the
history” and other expert reports in preparation for trial did Dr. Snyder perform
neuropsychological correlations, which he said showed “that actually it was head
trauma. So the history was concordant with the imaging review.”
{¶ 417} Dr. Snyder agreed that the results of Dr. Fabian’s
neuropsychological testing showing executive functioning deficits was consistent
with the frontal-lobe deficits shown on the MRI. And Dr. Snyder noted that
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January Term, 2024
according to Dr. Fabian’s report, Nicholson’s medical records reflect “multiple
head traumas.”
d. Ability to comply with institutional adjustment
{¶ 418} Defense counsel asked Aiken, the defense’s expert in correctional
management, to assess Nicholson in the prison-operational context based on his
criminal history and ability to succeed in institutional adjustment.
{¶ 419} Aiken testified that Nicholson had been confined in the Cuyahoga
County Jail for over a year pending trial and had had no disciplinary violations.
According to Aiken, the fact that Nicholson would be 30 years old when he entered
prison boded well for his compliance with prison rules. As inmates age, Aiken
testified, they “transition into * * * more compliant behavior pattern[s].” Aiken
concluded that Nicholson could be adequately housed, managed, and secured in a
high-security facility for the remainder of his life without causing undue risk of
harm to staff, inmates, or the general public.
{¶ 420} On cross-examination, Aiken acknowledged that Nicholson had
been in protective custody in the county jail throughout the 13 months he had been
awaiting trial. In Aiken’s view, Nicholson is “a high risk, for vulnerability. Just
by of nature of his offenses, he’s a high risk for the public, so therefore he’s got a
double whammy going on. He’s got to be in a high security setting, and well within
a high security setting within that high security setting.” At bottom, Aiken opined
that Nicholson’s “vulnerability is much higher than his potential for causing harm
to other people.”
C. State’s rebuttal witnesses
{¶ 421} The state called two witnesses in rebuttal during the mitigation
phase.
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1. Dr. Masaryk
{¶ 422} Dr. Masaryk reviewed Nicholson’s MRI and Dr. Snyder’s report
and drafted a report memorializing his findings. Over a defense objection, the trial
court deemed Dr. Masaryk an expert in the field of neuroradiology.
{¶ 423} With regard to Nicholson’s MRI, Dr. Masaryk first explained that
Dr. Snyder had evaluated “the integrity of the brain” by looking at its volume and
using “a special technique to look for chronic bleeding in the brain.” Dr. Masaryk
testified that “there are some small areas of high signal intensity * * * in the frontal
white matter.” He did not dispute that the white-matter lesions shown in
Nicholson’s MRI could have been caused by trauma. However, Dr. Masaryk
testified that because those white spots are nonspecific, they could have been
caused by “a plethora of other things, [such as] Lyme disease, migraine headache,
tension headache, hypertension, microvascular disease, [or] multiple sclerosis.” In
Dr. Masaryk’s opinion, white-matter lesions, without more, are insufficient for a
TBI diagnosis. And Dr. Darby testified that white spots might be caused by
vascular disease, multiple sclerosis, migraine headaches, and psychiatric disorders.
{¶ 424} But Dr. Masaryk testified that there was nothing “specific on those
scans that leads [to the conclusion] that there was significant brain trauma.” He
testified, to a reasonable degree of neuroradiological certainty, that Nicholson’s
brain scan does not conclusively prove that the white-matter lesions are shearing or
diffuse axonal injuries.
{¶ 425} In Dr. Masaryk’s opinion, Dr. Snyder’s finding that the volume of
Nicholson’s frontal lobe was decreased in comparison to his other brain lobes does
not conclusively indicate injury or even an abnormality. Moreover, Dr. Masaryk
saw no hemorrhages or brain bleeds in Nicholson’s MRI, although he did concede
that the location of the white-matter lesions “is somewhat characteristic” of a
shearing injury. Dr. Masaryk testified that there was nothing abnormal about
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January Term, 2024
Nicholson’s MRI and that he could not conclude to any degree of certainty that the
white spots on the MRI are shearing injuries.
2. Dr. Darby
{¶ 426} The state’s second rebuttal witness was Dr. Darby. The trial court
recognized Dr. Darby as an expert in the field of neurology, over a defense
objection. Dr. Darby reviewed Nicholson’s medical and educational records,
police reports, and testing information and then drafted a report memorializing his
findings.
{¶ 427} Dr. Darby noted that there was “no documentation in any of the
police reports or medical records that [he] reviewed [showing] that [Nicholson]
ever had symptoms of a traumatic brain injury.” Dr. Darby testified that the most
common neurological symptoms of a mild TBI are memory loss, amnesia, or loss
of consciousness and that a person must have at least one of those symptoms to be
diagnosed with a TBI.
{¶ 428} According to Dr. Darby, following Nicholson’s October 2014
motor-vehicle accident, his medical records “did not note any abnormality,
including volume loss.” Dr. Darby testified that Nicholson’s October 2014 medical
records indicated that “even though there was a hit to the head, there was not
evidence of a brain injury or a concussion” and that “a CAT scan [was] unnecessary
* * * [b]ecause there [was] not evidence of serious trauma or loss of
consciousness.” Thus, Dr. Darby found to a reasonable degree of scientific
certainty that “there was insufficient evidence to support findings of [TBI]” based
on the MRI.
{¶ 429} Dr. Darby also considered whether Nicholson’s MRI supported a
finding of a mild TBI. Dr. Darby disagreed with Dr. Snyder’s conclusion that the
six white-matter lesions depicted on the MRI represented a shearing or diffuse
axonal injury. Dr. Darby noted that the MRI showed “no evidence of microbleeds
* * * to support [finding the presence of a diffuse axonal injury].” Moreover, Dr.
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Darby noted, white-matter lesions are “a common finding that is not specific to TBI
or any other neurological disease, as they can happen in persons without
neurological diseases.”
{¶ 430} Further, according to Dr. Darby, the expected size of a patient’s
particular brain region is related to the patient’s age. The radiologist who reviewed
Nicholson’s 2019 MRI found no significant volume loss for his age and no signs
of significant damage to the cortex from even a mild TBI. Consistently with Dr.
Masaryk’s testimony, Dr. Darby opined that the fact that Nicholson was in the 29th
percentile for frontal-lobe volume was insignificant because people are born with
different sized brains. In Dr. Darby’s estimation, the volume of Nicholson’s frontal
lobe is not unusual; its volume is the same as or similar to those of one-third of all
people. Dr. Darby determined that Nicholson’s 2019 MRI did not reveal evidence
of a TBI.
{¶ 431} Dr. Darby also reviewed Dr. Fabian’s report regarding Nicholson’s
neuropsychological test results. In Dr. Darby’s estimation, those results did not
point to a diagnosis of a mild neurocognitive disorder due to a TBI. Dr. Darby
reasoned that the report and the testing did not clarify whether there was a true
difference in Nicholson’s test results from what might be expected based on his
prior level of functioning; Nicholson’s high-school and college test scores showed
that he was low-functioning before the 2014 motor-vehicle accident. Moreover,
because mood can affect cognition, the test results could have been affected by
Nicholson’s depression following the shootings.
{¶ 432} Moreover, Dr. Darby disagreed with Dr. Fabian’s conclusion that
Nicholson presented with a frontal-lobe behavioral disorder that affected his ability
to conform his conduct to the law. Dr. Darby testified that to diagnose a frontal-
lobe disorder, there would have to be a showing that someone had been normal,
then suffered an injury or a disease, and then developed the behaviors associated
with a frontal-lobe disorder. Dr. Darby also agreed with Dr. Masaryk’s testimony
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that if a person does not have symptoms such as memory loss, amnesia, or loss of
consciousness, a concussion or mild TBI cannot correctly be diagnosed. Thus, Dr.
Darby concluded that Nicholson did not meet the criteria for being diagnosed as
having an acquired frontal-lobe disorder.
{¶ 433} On cross-examination, Dr. Darby admitted that significant early-
childhood trauma can affect brain development and that pediatric brain injuries can
cause changes to the brain later in a person’s life. Dr. Darby also conceded that the
white-matter lesions shown on Nicholson’s MRI are located at the junction of white
and gray matter, which is typically where a diffuse axonal injury occurs. However,
he testified that even with pediatric trauma, “patients usually have clear areas of
scarring, of contusions, or bleeding at the time of the injury.”
D. Weight of mitigating factors
{¶ 434} Nicholson urges us to assign weight to the following mitigating
factors: (1) his history, character, and background, especially his traumatic
childhood; (2) Dr. Fabian’s mental-health diagnoses of a mild neurocognitive
disorder due to TBI, PTSD, ADHD, borderline personality disorder with paranoid
traits, and major depressive disorder; (3) his lack of a significant history of criminal
convictions, see R.C. 2929.04(B)(5); (4) his low risk to prison staff and inmates;
and (5) the fact that he has the love and support of his family.
1. History, character, and background
{¶ 435} Regarding Nicholson’s history, character, and background, the
state argues that although the evidence of physical and mental domestic abuse is
“disturbing,” it mostly predated Nicholson’s birth. The evidence belies the state’s
claim. Robert Sr. and Angel abused and taunted Nicholson. Angel verified that
Nicholson witnessed physical violence between her and Robert Sr. She provided
details of horrific abuse at their home, including an incident in which Robert Sr.
accused Angel of “looking at his brother-in-law” during a party and then wrestled
her to the floor and tried to suffocate her—all while Nicholson and Robert Jr.
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watched. Moreover, Robert Jr. testified that domestic violence was a daily
occurrence in the home, even after Nicholson was born. And the evidence showed
that with the passage of time, Angel drank more and more as the domestic violence
increased.
{¶ 436} Robert Jr. opined that the cycle of abuse was continuing. Dr.
Fabian unequivocally concluded that Nicholson had “learn[ed] that domestic
violence was a way of solving disputes in his home and to process negative
emotion.” Thus, Nicholson’s mitigation evidence indicates that he is a product of
his development, which was negatively impacted by trauma.
{¶ 437} Because the record is replete with evidence that Nicholson was
raised in a toxic and dangerous environment, we assign significant weight to his
history, character, and background.
2. Lack of a significant history of prior criminal convictions
{¶ 438} Nicholson contends that because he had never been arrested or
indicted for any criminal conduct, we should give significant weight to his lack of
criminal convictions or juvenile adjudications. Although this case marks the first
time Nicholson has been indicted for a crime, the evidence at trial showed that
Nicholson physically and emotionally abused Polanco and assaulted Giselle at least
once before the shootings. Accordingly, we assign only minimal weight to
Nicholson’s lack of a significant history of criminal convictions or juvenile
adjudications.
3. Mental-health diagnoses
{¶ 439} Dr. Fabian diagnosed Nicholson with mild neurocognitive disorder
due to TBI, PTSD, ADHD, borderline personality disorder with paranoid traits, and
major depressive disorder. Nicholson contends that this court should accord
significant weight to these diagnoses, cumulatively. Because Nicholson did not
argue that he “lacked substantial capacity to appreciate the criminality” of his
conduct owing to a mental disease or defect, R.C. 2929.04(B)(3), we consider the
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January Term, 2024
mental-health evidence under the mitigation catchall provision,
R.C. 2929.04(B)(7).
{¶ 440} Dr. Fabian concluded that Nicholson’s psychiatric, psychological,
neurological, and neuropsychological deficits, impairments, and conditions
compromise his emotional, behavioral, and cognitive functioning, especially during
a perceived stressful and threatening event and domestic-violence situation. Dr.
Fabian testified that Nicholson “has psychological and problem psychiatric
diagnoses and brain dysfunction that we can kind of quibble about * * * but he’s
impaired at the end of the day and was at the time of this offense.” We also give
this evidence some weight.
4. Nicholson’s other mitigating evidence
{¶ 441} Nicholson urges us to assign weight to the fact that he would be a
low risk to other inmates. Aiken convincingly testified that Nicholson can be
adequately managed and secured in a high-security facility for the rest of his life
without undue risk. Aiken’s testimony is entitled to some weight. See State v.
Madison,

160 Ohio St.3d 232

2020-Ohio-3735

155 N.E.3d 867

, ¶ 239, 242.
{¶ 442} Nicholson also asks this court to give weight to the strong love and
support from his family. Mitigation testimony established that Nicholson does have
“strong love and support from his family,” State v. Brinkley,

105 Ohio St.3d 231

2005-Ohio-1507

824 N.E.2d 959

, ¶ 178, and we assign modest weight to that
factor, see

id.

E. Reweighing
{¶ 443} Nicholson presented significant evidence that he was raised in a
violent household and was controlled by abusive parents who told him not to report
the abuse lest he be taken from the family. Combined with the other mitigating
evidence, the cumulative weight of Nicholson’s mitigation is not slight. The
evidence indicates that Nicholson is a product of his upbringing and that he never
learned any positive ways to manage conflict.
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SUPREME COURT OF OHIO
{¶ 444} However, the strength of the aggravating circumstances cannot be
overstated. Nicholson murdered two unarmed teenagers in front of their mother
and mounted a defense that the physical evidence flatly contradicts. Therefore, we
affirm Nicholson’s death sentences based on our independent reweighing of the
aggravating circumstances and mitigating factors.
F. Proportionality
{¶ 445} We conclude that the death sentences imposed in this case are both
appropriate and proportionate when compared to death sentences imposed in other
capital cases. This court has upheld death sentences based on a course-of-conduct
specification under R.C. 2929.04(A)(5) many times. See Hundley,

162 Ohio St.3d 509

166 N.E.3d 1066

, at ¶ 153; Mammone,

139 Ohio St.3d 467

2014-Ohio-1942

13 N.E.3d 1051

, at ¶ 241; Kirkland,

160 Ohio St.3d 389

, 2020-
Ohio-4079,

157 N.E.3d 716

, at ¶ 181.
V. CONCLUSION
{¶ 446} We affirm Nicholson’s convictions and death sentences.
Judgment affirmed.
DEWINE and DETERS, JJ., concur.
KENNEDY, C.J., concurs, with an opinion.
DONNELLY, J., concurs in part and dissents in part, with an opinion.
BRUNNER, J., concurs in part and dissents in part, with an opinion joined by
STEWART, J.
_________________
KENNEDY, C.J., concurring.
{¶ 447} I concur in the majority’s judgment affirming appellant Matthew
Nicholson’s convictions and death sentences for the aggravated murders of M.L.
and Giselle Lopez. I also join most of the majority opinion’s analysis supporting
that judgment, except for paragraphs 193-194, 197-198, and 334. But I part ways
with the majority in two respects. First, I disagree with its reliance on State v.
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January Term, 2024
Graham,

164 Ohio St.3d 187

172 N.E.3d 841

, to determine
whether the trial court erred in admitting some of the allegedly improper victim-
impact testimony that Nicholson challenges in his seventh proposition of law. See
majority opinion at ¶ 193-194, 197-198. Second, I disagree with its reliance on
State v. Ireland,

155 Ohio St.3d 287

2018-Ohio-4494

121 N.E.3d 285

(lead
opinion), in characterizing blackout as an affirmative defense in analyzing
Nicholson’s 16th proposition of law. See majority opinion at ¶ 334.
{¶ 448} Numerous witnesses testified during the trial phase of Nicholson’s
trial. Relevant here, witnesses testified about M.L.’s and Giselle’s personal
characteristics and qualities—specifically, that they were “good,” “respectful,”
“polite,” intelligent, and family-centered children. The majority relies on the
analysis conducted in Graham and its factors for determining whether testimony is
“overly emotional” in concluding that the trial court did not err in admitting the
challenged testimony.
{¶ 449} For the reasons set forth in my separate opinion in Graham, the
factors for determining whether testimony is “overly emotional” and the analysis
conducted in Graham were advisory. See id. at ¶ 250 (Kennedy, J., concurring in
judgment only in part and dissenting in part). Therefore, the majority errs in relying
on Graham in concluding that the trial court did not error in admitting the testimony
relating to M.L.’s and Giselle’s personal characteristics and qualities.
{¶ 450} Under this court’s precedent, the personal-characteristics-and-
qualities testimony challenged here was inadmissible victim-impact testimony, and
the trial court erred in admitting it. But because the trial court’s admission of that
testimony was not plain error, the majority properly rejects Nicholson’s seventh
proposition of law, though partially for the wrong reason.
{¶ 451} Also, Nicholson testified that he “blacked out” when he murdered
M.L. and Giselle, and he argues that his trial counsel were ineffective for not raising
blackout as an affirmative defense. But in my view, the defense of blackout is a
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SUPREME COURT OF OHIO
failure-of-proof defense, not an affirmative defense as asserted by Nicholson and
the majority. See Ireland,

155 Ohio St.3d 287

2018-Ohio-4494

121 N.E.3d 285

,
at ¶ 70 (Kennedy, J., dissenting). Regardless, the majority’s mischaracterization
does not change the conclusion that defense counsel did not render ineffective
assistance by failing to request a jury instruction on the defense of blackout. The
majority properly rejects Nicholson’s 16th proposition of law.
Victim-Impact Testimony
{¶ 452} To be admissible, evidence must be relevant.            Evid.R. 402.
Evid.R. 403(A) prohibits the admission of relevant evidence when its “probative
value is substantially outweighed by the danger of unfair prejudice, of confusion of
the issues, or of misleading the jury.” Victim-impact testimony includes evidence
relating to “ ‘the personal characteristics of the victim and the emotional impact of
the crimes on the victim’s family.’ ” State v. McKelton,

148 Ohio St.3d 261

, 2016-
Ohio-5735,

70 N.E.3d 508

, ¶ 259, quoting Payne v. Tennessee,

501 U.S. 808

, 817,

111 S.Ct. 2597

115 L.Ed.2d 720

 (1991). Victim-impact testimony is admissible
during the trial phase of a death-penalty trial when the testimony concerns the
circumstances surrounding the commission of the murder. See State v. Gross,

97 Ohio St.3d 121

2002-Ohio-5524

776 N.E.2d 1061

, ¶ 62 (lead opinion), citing
State v. Fautenberry,

72 Ohio St.3d 435

, 440,

650 N.E.2d 878

 (1995). Such
testimony may not be overly emotional. See State v. Reynolds,

80 Ohio St.3d 670

,
679,

687 N.E.2d 1358

 (1998).
{¶ 453} The majority rightly concludes that the trial court did not err in
admitting the testimonies of Henry Billingslea, Kristin Bailey, America Polanco,
and Garfield Heights Police Lieutenant Robert Petrick. The majority also correctly
concludes that the state did not improperly highlight victim-impact evidence in its
opening statement and closing arguments with the goal of swaying the jury and that
there was no carryover effect on the mitigation phase regarding any victim-impact
evidence that was erroneously admitted during the trial phase.
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January Term, 2024
{¶ 454} But the majority fumbles regarding the remaining challenged
testimony. The testimony describing M.L. and Giselle as “good,” “respectful,”
“polite,” intelligent, and family-centered children was irrelevant to the
circumstances of M.L.’s and Giselle’s murders; it merely described the personal
characteristics and qualities of M.L. and Giselle.        See McKelton at ¶ 259.
Therefore, contrary to the majority’s conclusion, which is based on its improper
reliance on Graham,

164 Ohio St.3d 187

172 N.E.3d 841

, that
testimony was inadmissible victim-impact testimony and the trial court erred in
admitting it. But that does not end the analysis.
Plain Error
{¶ 455} Nicholson did not contemporaneously object to the challenged
personal-characteristics-and-qualities testimony; therefore, he forfeited all but
plain-error review of his challenge to it. See Crim.R. 52(B); State v. Morgan,

153 Ohio St.3d 196

2017-Ohio-7565

103 N.E.3d 784

, ¶ 36. Accordingly, the trial
court’s error in admitting that testimony “must have affected the outcome of the
trial,” State v. Barnes,

94 Ohio St.3d 21

, 27,

759 N.E.2d 1240

 (2002). We take
notice of plain error with “the utmost caution, under exceptional circumstances and
only to prevent a manifest miscarriage of justice.” State v. Long,

53 Ohio St.2d 91

372 N.E.2d 804

 (1978), paragraph three of the syllabus.
{¶ 456} The trial court’s admission of the victim-impact testimony was not
plain error. Nicholson does not make any specific arguments regarding the effect
of the admission of the personal-characteristics-and-qualities testimony. Rather,
he argues that all the testimony he challenges as improper victim-impact testimony
“cumulatively inflamed the passions of the jurors.” Such testimony, he argues,
“inhibited the jurors from making objective and rational decisions” regarding his
guilt.
{¶ 457} This broad, generalized argument does not overcome the
tremendous hurdle of showing that the testimony affected the outcome of
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SUPREME COURT OF OHIO
Nicholson’s trial. And Nicholson argues that he is entitled to a new trial based, in
part, on the testimonies of Billingslea, Bailey, and Polanco—testimony that we
have already determined was admissible. Nicholson’s argument is conclusory and
does not display any manifest miscarriage of injustice. Because Nicholson has not
demonstrated plain error by showing how the personal-characteristics-and-qualities
testimony affected the outcome of the trial phase of his trial, the majority properly
rejects his seventh proposition of law.
Blackout Defense
{¶ 458} The majority also errs in labeling the defense of blackout as an
affirmative defense. But in the end, it properly rejects Nicholson’s ineffective-
assistance-of-counsel claim arguing that his counsel should have raised the defense.
In Ireland,

155 Ohio St.3d 287

2018-Ohio-4494

121 N.E.3d 285

, at ¶ 1, the lead
opinion determined that blackout is an affirmative defense. For the reasons set forth
in my dissenting opinion in that case, blackout is a failure-of-proof defense, not an
affirmative defense. Id. at ¶ 69-70 (Kennedy, J., dissenting).
{¶ 459} So while I disagree with the majority’s characterization of blackout
as an affirmative defense, I concur in its conclusion that Nicholson’s trial counsel
did not render ineffective assistance by failing to request a jury instruction on
blackout, because “[t]he record contains insufficient evidence suggesting that
Nicholson had been unconscious and had involuntarily shot M.L. and Giselle,”
majority opinion at ¶ 335.      The majority properly rejects Nicholson’s 16th
proposition of law.
Conclusion
{¶ 460} While I disagree with the majority’s decision to use the advisory
test from Graham,

164 Ohio St.3d 187

172 N.E.3d 841

,
regarding “overly emotional” testimony and would adhere to our established
precedent in determining whether the trial court erred in admitting the challenged
testimony, I ultimately concur in the majority’s decision to reject Nicholson’s
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January Term, 2024
seventh proposition of law. And even though the majority improperly characterizes
the defense of blackout as an affirmative defense instead of a failure-of-proof
defense, I concur in its decision to reject Nicholson’s 16th proposition of law. I
join the remainder of the majority opinion.
_________________
DONNELLY, J., concurring in part and dissenting in part.
{¶ 461} I concur in the majority’s decision affirming the convictions against
appellant, Matthew Nicholson. But because I would reverse his death sentences, I
respectfully dissent in part.
{¶ 462} I fully agree with Justice Brunner’s opinion concurring in part and
dissenting in part that the aggravating circumstances do not outweigh the mitigating
factors in this case. And I agree with her criticism of the charade that we call
proportionality review in Ohio and her conclusion that Nicholson’s death sentences
are disproportionate to the penalties that have been imposed in similar cases. I
further agree with Justice Brunner’s observation that the aggravating circumstances
in this case barely make it eligible to be a capital case. It is a close call.
{¶ 463} Close calls are not appropriate for the death penalty. In close-call
cases, constitutional problems arise because the tiebreaker tends to be the county in
which the offenses are prosecuted rather than anything relevant to the merits of the
case.
{¶ 464} Around the time that the Cuyahoga County Prosecutor’s Office
sought the death penalty against Nicholson, there was a sudden uptick in Cuyahoga
County of aggravated-murder cases in which death sentences were pursued. In
2019, a total of seven death sentences were imposed in Ohio’s courts of common
pleas. Ohio Attorney General, Annual Report, 2019 Capital Crimes, State and
Federal Cases, at 27 (2019), available at https://www.ohioattorneygeneral.gov
/Files/Reports/Capital-Crimes-Annual-Reports/2019-Capital-Crimes-Annual-
Report (accessed Feb. 2, 2024) [https://perma.cc/5DC5-X3T6]. Cuyahoga County
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was responsible for four of those death sentences—the same amount as for the
previous eight years combined in Cuyahoga County. See id. at 30.
{¶ 465} The number of death sentences imposed in Cuyahoga County in
2019 was not just an outlier for that county or for the state of Ohio but for the entire
United States. See Death Penalty Information Center, The Death Penalty in 2019:
Year End Report, https://deathpenaltyinfo.org/facts-and-research/dpic-reports
/dpic-year-end-reports/the-death-penalty-in-2019-year-end-report             (accessed
Feb. 2, 2024) [https://perma.cc/T388-J7BX] (the number of death sentences in
Cuyahoga County around 2019 was “more than in any other county in the
country”). The executive director of the Death Penalty Information Center, Robert
Dunham, noted that there was no corresponding spike in homicide cases around
2019, and he commented that the county in which the crime was committed, rather
than the severity of the crime, is what tends to determine whether the death penalty
is imposed. Pelzer, Cuyahoga County leads the nation in death-penalty sentences,
study finds, Cleveland.com (Dec. 17, 2019), https://www.cleveland.com/open
/2019/12/cuyahoga-county-leads-the-nation-in-death-penalty-sentences-study
-finds.html (accessed Feb. 2, 2024) [https://perma.cc/CL97-4UVY].
{¶ 466} If the death penalty is being imposed based more on irrelevant
factors such as geography than on relevant circumstances of the offenses, then it
seems clear that the death penalty is being imposed arbitrarily. See Glossip v.
Gross,

576 U.S. 863

, 920,

135 S.Ct. 2726

192 L.Ed.2d 761

 (2015) (Breyer, J.,
dissenting); Ditchfield, Challenging the Intrastate Disparities in the Application of
Capital Punishment Statutes, 95 Geo.L.J. 801, 803-804 (2007), quoting Furman v.
Georgia,

408 U.S. 238

, 310,

92 S.Ct. 2726

33 L.Ed.2d 346

 (1972) (Stewart, J.,
concurring) (“geography, which is a powerful predictor of whether a capital crime
will be charged as such, is the sort of arbitrary factor mentioned in Furman v.
Georgia that leads to the ‘wanton[] and * * * freakish []’ imposition of death
136
January Term, 2024
sentences that violate the Eighth Amendment” [brackets and ellipsis added in
Ditchfield]).
{¶ 467} Nicholson, in a senseless rage, murdered two young people, and for
that he deserves severe punishment. However, I am convinced that in any Ohio
county in any year other than Cuyahoga County in 2019, the punishment for
offenses like Nicholson’s here would have been life in prison, not death. Until the
General Assembly figures out a better method for determining which aggravated-
murder defendants should be eligible for the death penalty, this court should not
uphold death sentences in close-call cases in which the only apparent deciding
factor was something as arbitrary as where the offenses occurred. Accordingly, I
dissent from the portion of the majority’s decision that affirms Nicholson’s death
sentences.
_________________
BRUNNER, J., concurring in part and dissenting in part.
{¶ 468} I agree that appellant Matthew Nicholson’s convictions were
supported by the evidence, and I do not question the jury’s rejecting his self-defense
claim. Nicholson admitted that he had “snapped” when he purposefully shot and
killed two young people—M.L. and Giselle Lopez.            I concur in this court’s
judgment affirming Nicholson’s convictions for aggravated murder.
{¶ 469} However, I part ways with the trial court in imposing and with my
colleagues in affirming Nicholson’s death sentences. The decision whether a
defendant should be executed is an incredibly heavy burden that the law places on
jurors who are ordinary citizens and residents of the same county as the defendant.
Even judges, who typically receive training and otherwise prepare to make the
ultimate sentencing decision when a jury has recommended a death sentence,
seldom find it to be an easy one. When this court conducts an independent review
of a death sentence, as it is charged with doing, R.C. 2929.05, its role is not to
second-guess the initial sentencing deciders or supplant their judgment with that of
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this court. It is our task to determine whether the defendant’s conduct was so
abhorrent that the law permits punishment by death. We must examine various
interests—like whether the offender’s culpability, conduct, and background place
him in the category of offenders for whom the death penalty is reserved—against
factors provided under the law to guide this decision, all with the understanding
that we are channeling in imperfect waters not of our own making.
{¶ 470} We must apply the statutes governing the imposition of the death
penalty so as to ensure that it is reserved for people who kill with extreme
culpability. See Atkins v. Virginia,

536 U.S. 304

, 318-319,

122 S.Ct. 2242

153 L.Ed.2d 335

 (2002) (“the culpability of the average murderer is insufficient to
justify the most extreme sanction available to the State”), citing Godfrey v. Georgia,

446 U.S. 420

, 433,

100 S.Ct. 1759

64 L.Ed.2d 398

 (1980) (lead opinion); see also
State v. Murphy,

91 Ohio St.3d 516

, 563,

747 N.E.2d 765

 (2001) (Pfeifer, J.,
dissenting) (finding that “[w]hen Ohio’s death penalty statute was enacted, it was
designed to be narrowly tailored to allow the execution of only the most vile and
evil murderers”). After considering the aggravating and mitigating evidence in this
case and the sentences imposed in similar cases, I cannot conclude that Nicholson
should be put to death.
I. SENTENCING REVIEW UNDER R.C. 2929.05
{¶ 471} This court has a duty to review death sentences imposed by a trial
court. R.C. 2929.05. That review includes determining whether the evidence
supports the jury’s finding of aggravating circumstances that qualify the defendant
for the death penalty under R.C. 2929.04. R.C. 2929.05(A). We must also conduct
an independent review of the evidence in the record and determine whether the
aggravating circumstances of the offenses outweigh beyond a reasonable doubt the
mitigating factors relating to the defendant.      Id.; State v. Lawson,

165 Ohio St.3d 445

2021-Ohio-3566

179 N.E.3d 1216

, ¶ 126. And before we may uphold
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January Term, 2024
a death sentence, we must find that death is the appropriate sentence based on the
penalties imposed in similar cases. R.C. 2929.05(A).
A. Weighing the aggravating circumstances and mitigating factors
{¶ 472} I agree with the majority that there was sufficient evidence for the
jury to conclude that Nicholson purposefully killed M.L. and Giselle as part of a
single course of conduct under R.C. 2929.04(A)(5). Nicholson shot and killed M.L.
and Giselle close in time in the same location using the same weapon. I do not
dispute that Nicholson’s offenses qualify him for the death penalty.
{¶ 473} However, on balancing the aggravating circumstances and the
mitigating factors, I do not believe that Nicholson should be put to death. In
conformity with the law, when I juxtapose the aggravating circumstances with the
mitigating factors, I view the mitigating factors as “strongly militat[ing] against
imposing the death sentence,” State v. Tenace,

109 Ohio St.3d 255

, 2006-Ohio-
2417,

847 N.E.2d 386

, ¶ 105. The majority acknowledges that “the record is replete
with evidence that Nicholson was raised in a toxic and dangerous environment.”
Majority opinion, ¶ 437. And it assigns substantial weight to this mitigating
evidence. Indeed, Nicholson was raised in a home where his father regularly
physically abused Nicholson’s mother. He witnessed his father choking his mother
and chasing her with a gun. His father was controlling and abusive and called him
names. He suffered abuse and neglect by his mother, who failed to remember the
details of those events because she was so intoxicated when they occurred.
{¶ 474} Adding to the trauma caused by his parents, Nicholson survived at
young ages a house fire and a tornado that hit the family home. He disclosed to Dr.
John Fabian, a forensic and clinical psychologist called by the defense, two
incidents in which he was sexually abused (once by an older female cousin when
he was around five or six years old and once by a friend when he was 22). There
was also evidence that he had been injured in multiple car accidents. Nicholson
grew up never feeling safe and with dysfunction, feelings of fear, and violence
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SUPREME COURT OF OHIO
being the norm in his childhood environment.        The evidence of trauma and
suffering that Nicholson endured during his childhood and adolescence should be
and has been given substantial weight in mitigation by the majority, and for
multiple, salient reasons. However, it is important that we explain why this
evidence is deserving of such weight.
{¶ 475} Nicholson presented mitigating evidence from a licensed
independent social worker and mitigation specialist, Mary Ceci McDonnell.
McDonnell explained that in her private practice as a therapist, she counsels people
who have experienced trauma. She testified that Nicholson exhibited “repetition
compulsion,” which occurs when a person experiences trauma as a child and repeats
the same dysfunctional behavior as an adult in an effort to change the outcome.
{¶ 476} Also, Dr. Fabian, who interviewed and evaluated Nicholson and
spoke with members of Nicholson’s family, explained that Nicholson’s situation
was the result of a multigenerational cycle. Nicholson’s parents had fallen into the
same cycle of domestic violence, alcoholism, and dysfunction that they witnessed
as children. McDonnell noted that mental-health intervention is necessary to
change such a cycle. But Dr. Fabian explained that Nicholson, like many of the
defendants he had interviewed, had never “processed any of [his family’s]
baggage.”
{¶ 477} So like his parents, Nicholson continued the cycle of dysfunction
and violence through his relationships with America Polanco and her children. And
Nicholson’s access to firearms made these relationships substantially more deadly.
It is well documented that a female partner’s risk of being killed by her abuser is
five times greater when the abuser has access to a firearm. Campbell et al., Risk
Factors for Femicide in Abusive Relationships: Results from a Multisite Case
Control Study, 93 Am.J.Pub. Health 1089, 1092 (2003), available at
https://www.ncbi.nlm.nih.gov/pmc/articles/PMC1447915/ (accessed Jan. 2, 2024)
[https://perma.cc/Q86L-8PJ8]. Nicholson seemingly recognized this, having told
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January Term, 2024
law enforcement, “If I would have kn[own] something, martial arts or something,
maybe I could have did that instead [of shooting M.L. and Giselle].” The influence
of family violence and its dynamics in this case cannot be overstated, and the
majority rightly assigns substantial weight to this mitigating factor.
{¶ 478} The majority also recognizes that Nicholson suffered from
psychological and neurological impairments that “compromise[d] his emotional,
behavioral, and cognitive functioning, especially during a perceived stressful and
threatening event and domestic-violence situation.” Majority opinion at ¶ 440. The
majority assigns this evidence some weight.          In my view, however, these
psychological and neurological impairments explain more about Nicholson’s
culpability for the murders than the majority seems willing to recognize.
{¶ 479} Dr. Fabian testified that Nicholson suffered from or had reported
experiencing mild depression, obsessive thinking, rigidity in thinking, evidence of
posttraumatic stress disorder (both prior to and resulting from the murders),
impulsivity problems, aggression, borderline personality disorder (involving
impulsivity, volatility, emotional and relationship dysfunctions, self-esteem
problems, and self-destructive behavior), and instability in mood and relationships.
He characterized Nicholson as a “lower functioning guy” who exhibited evidence
of attention-deficit/hyperactivity disorder and problems with executive functioning.
Dr. Fabian noted that while Nicholson wanted to appear “with it,” that was a facade
masking “a fragile sense of self” and “somebody who [feels] really inadequate, who
has low self-esteem.”
{¶ 480} Dr. Fabian explained that characteristics shown by Nicholson such
as “impulsivity[,] volatility in mood, relationship[s], suicidality, kind of high
drama, [and] fear[] of abandonment in relationships” are often rooted in childhood
trauma and implicate “attachment issue[s]” and “parental d[y]sfunction.” Dr.
Fabian opined that Nicholson had learned that violence was a way to solve domestic
disputes. Dr. Fabian also explained the undercurrents of Nicholson’s relationships
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with M.L., Giselle, and Polanco, and his disorders’ eruptive effects on his
interactions with them on the day of the murders:
He’s fearing abandonment. He’s more likely to misperceive
or overblow, exaggerate threatening situations. And [he] certainly
cannot cope well with th[is] type of high level stress, chaotic
situations that in part he obviously creates.
{¶ 481} All of this together shows that more weight should be accorded to
the behavioral and psychological effects that Nicholson’s childhood trauma had on
him and how they manifested on the day that he killed M.L. and Giselle. Under
R.C. 2929.04(B)(2), a court must consider in mitigation “[w]hether it is unlikely
that the offense would have been committed, but for the fact that the offender was
under duress, coercion, or strong provocation.” To be clear, neither Polanco, M.L.,
nor Giselle provoked the murders Nicholson committed, but this factor does not
require that the provocation was occasioned by the victim. See State v. Conway,

108 Ohio St.3d 214

2006-Ohio-791

842 N.E.2d 996

, ¶ 201 (Pfeifer, J., concurring
in part and dissenting in part).
{¶ 482} Nicholson’s inability to reasonably perceive and cope with his
since-childhood, hardwired insecurities during his relationship with Polanco
contributed to the initial argument soon before the murders. And his impulsive and
aggressive tendencies escalated the situation. Based on the testimonies of Dr.
Fabian and McDonnell, this court should conclude that Nicholson’s inability to
cope with M.L.’s and Giselle’s rejection of him—i.e., their “disrespect” toward
him—coupled with his access to a gun was ultimately the trauma-fueled,
psychological trigger that propelled him to shoot and kill them. Based on the expert
testimony, it is apparent that in the moments leading up to the shootings, Nicholson
was acting out of self-preservation, fear of abandonment, and duress, all of which
142
January Term, 2024
were hardwired into his psyche and affected his executive-functioning capacity
because of the traumatic events of his childhood and adolescence and the
multigenerational cycle of violence that he later recognized upon reflecting on the
horror of his conduct. For this reason, this mitigating factor weighs even more
heavily in Nicholson’s favor, qualifying as a separate factor under
R.C. 2929.04(B)(2).
{¶ 483} I agree with the majority’s assignment of diminished weight in
mitigation to Nicholson’s lack of a significant history of criminal convictions or
juvenile adjudications, see majority opinion at ¶ 438.        I also agree with the
majority’s assignment of some weight to the evidence demonstrating Nicholson’s
ability to be housed and effectively managed in prison, see

id.

 at ¶ 441 and its
assignment of modest weight to the strong love and support that Nicholson has from
his family, see id. at ¶ 442. Taken together, these mitigating factors are compelling
and weigh enough in Nicholson’s favor to outweigh the aggravating circumstances
of his egregious conduct.
{¶ 484} Regarding the aggravating circumstances of Nicholson’s conduct,
it is a given that Nicholson senselessly and selfishly killed M.L. and Giselle. We
must compare the aggravating circumstances with other heinous killings for which
we have affirmed the imposition of the death penalty. After doing so, it is clear that
the aggravating circumstances of Nicholson’s offenses do not rise to the level of
those in other cases in which we have affirmed death sentences.
{¶ 485} For example, Nicholson did not commit the murders in this case
while committing another felony or with prior calculation and design. Compare
State v. Cunningham,

105 Ohio St.3d 197

2004-Ohio-7007

824 N.E.2d 504

, ¶ 17-
18. Nicholson did not lie in wait to commit the murders. Compare Lawson,

165 Ohio St.3d 445

2021-Ohio-3566

179 N.E.3d 1216

, at ¶ 185. He did not commit
multiple murders over the course of several years. Compare State v. Kirkland,

160 Ohio St.3d 389

2020-Ohio-4079

157 N.E.3d 716

, ¶ 4-6, 10-15, 29-30. He did not
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gain access to his victims through deception, compare State v. Beuke,

38 Ohio St.3d 29

, 29-31,

526 N.E.2d 274

 (1988), nor did he murder one victim in order to
cover up the murder of another victim, compare State v. Hand,

107 Ohio St.3d 378

2006-Ohio-18

840 N.E.2d 151

, ¶ 72-73. While Nicholson’s conduct was abhorrent
and senseless and the results were tragic, the aggravating circumstances that do
exist in this case place Nicholson’s conduct just over the bar for what may qualify
for capital punishment. He is not the worst of the worst, having not exhibited the
most extreme culpability, and the aggravating circumstances of Nicholson’s
conduct do not outweigh beyond a reasonable doubt the cumulative mitigating
evidence presented.    For these reasons, I would reverse Nicholson’s death
sentences.
B. Proportionality of the death sentences
{¶ 486} R.C. 2929.05(A) requires us to conduct a proportionality review of
Nicholson’s death sentences. This court limits the cases to be used for such
proportionality comparison to those in which the death penalty was imposed. See
State v. Steffen,

31 Ohio St.3d 111

509 N.E.2d 383

 (1987), paragraph one of the
syllabus. Scholars and a justice of this court have suggested that limiting our
proportionality review by considering only cases in which a death sentence was
imposed renders the review meaningless, especially because no such review by this
court has resulted in the reversal of a death sentence. See State v. Graham,

164 Ohio St.3d 187

172 N.E.3d 841

, ¶ 219 (Donnelly, J.,
concurring); Berry, Ending the Death Lottery: A Case Study of Ohio’s Broken
Proportionality Review, 76 Ohio St.L.J. 67, 71, 76-77 (2015).
{¶ 487} A more meaningful review would require consideration of cases in
which the defendant was convicted of crimes similar to those involved in the case
under review and cases in which the death penalty was not imposed but potentially
could have been. As an example of a non-death-sentence case involving facts
similar to those in this case, in State v. Rodgers,

2023-Ohio-734

210 N.E.3d 88

 (2d
144
January Term, 2024
Dist.), a defendant was sentenced to an aggregate prison term of 72 years to life
after being found guilty of shooting and killing a 28-year-old man and a 20-year-
old pregnant woman, id. at ¶ 1-3, 21, 30-31, 43, 87. As another example, in State
v. Sheets, 4th Dist. Jackson No. 21CA6,

2023-Ohio-2591

, the defendant had shot
and killed his sister-in-law, had attempted to kill his brother by shooting and then
bludgeoning him after the gun malfunctioned, and had been complicit in killing his
friend, id. at ¶ 5, 132. He was sentenced to life in prison without the possibility of
parole. State v. Sheets, Jackson C.P. No. 20CR0076 (June 8, 2021). And in State
v. Young, 5th Dist. Coshocton No. 21CA0028,

2022-Ohio-4726

, the defendant had
shot and killed his wife and her brother following an argument and was sentenced
to life in prison without the possibility of parole, id. at ¶ 2-6, 13.
{¶ 488} The method by which this court currently conducts its required
proportionality review under R.C. 2929.05(A) is inherently weighted in favor of
affirming death sentences. By failing to compare a death-sentence case under
review with similar cases in which death sentences were not pursued or imposed,
we fail to compare the case under review with cases in which the death penalty was
inappropriate even though the offender was eligible for that sentence. And there is
no cogent argument that we should limit the cases that may be compared to the case
under review to only this court’s cases. Even though Rodgers, Sheets, and Young
were not decided by this court, the sentencing decisions in those cases were made
by trial courts and affirmed by district courts of appeals—both of which are more
immersed in reviewing evidence than this court will ever be. The trial-court judges
presumably heard aggravating and mitigating evidence and arguments concerning
the evidence, and the appellate courts presumably reviewed all aspects of the
record. Their collective decisions are no less valuable for proportionality-review
purposes than our decisions made under R.C. 2929.05.
{¶ 489} I conclude that even if we do not expand the cases that we consider
on proportionality review to those in which the death penalty could have been
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SUPREME COURT OF OHIO
imposed but was not—that is, if we continue to employ the limited-scope
proportionality review used by the majority in this case—Nicholson’s offenses
were not the worst of the worst.
{¶ 490} The majority concludes that we have affirmed death sentences that
were based on the course-of-conduct specification found by the jury in this case
“many times,” and it summarily concludes that Nicholson’s death sentences are
therefore proportionate and appropriate when compared to death sentences imposed
in other cases. Majority opinion at ¶ 445. I respectfully submit that our duty on
plenary review of death sentences under R.C. 2929.05 calls for more than such a
truncated analysis before we may sanction a defendant’s execution.
{¶ 491} Nicholson was sentenced on two counts of aggravated murder, each
with a course-of-conduct death specification under R.C. 2929.04(A)(5).         The
majority cites the following course-of-conduct cases for comparison with this case:
State v. Hundley,

162 Ohio St.3d 509

166 N.E.3d 1066

; State v.
Mammone,

139 Ohio St.3d 467

2014-Ohio-1942

13 N.E.3d 1051

; and Kirkland,

160 Ohio St.3d 389

157 N.E.3d 716

.                The facts and
circumstances of each of those cases as compared with the facts and circumstances
of this case do not support the majority’s decision to affirm Nicholson’s death
sentences.
{¶ 492} We affirmed Hundley’s death sentence following his convictions
for aggravated murder with a course-of-conduct specification, attempted murder,
felonious assault, and two counts of aggravated arson. Hundley at ¶ 1-2. Hundley
beat and strangled Erika Huff, who was wheelchair-bound and had allowed
Hundley to stay in her home. Id. at ¶ 1, 3, 148. He had also beat Huff’s mother
with a hammer, id. at ¶ 148, and had lied to emergency personnel who responded
to the activation of Huff’s medical-alert device, telling them that he had
accidentally triggered the device and that nothing was wrong, id. at ¶ 10-11.
Hundley had lit Huff’s body on fire and attempted to set her mother on fire. Id. at
146
January Term, 2024
¶ 148. Following an independent review of the trial-court record, this court found
that “mitigating factors [were] nonexistent.” Id. at ¶ 152.
{¶ 493} In this case, Nicholson shot and killed M.L. and Giselle within a
matter of seconds following the argument with Polanco and M.L., whereas it seems
that Hundley had been unprovoked and was methodical and driven to kill using a
hammer and his own hands. And Nicholson did not lie to authorities or attempt to
cover up the murders as Hundley did. Further, Nicholson presented substantial
mitigating evidence, whereas Hundley presented virtually none.          Therefore,
Hundley cannot be used to justify Nicholson’s death sentences as being
proportionate or appropriate.
{¶ 494} In Mammone,

139 Ohio St.3d 467

2014-Ohio-1942

13 N.E.3d 1051

, we affirmed Mammone’s death sentences following his convictions for the
aggravated murders of his former mother-in-law, his five-year-old daughter, and
his three-year-old son. Id. at ¶ 1. Mammone’s three death sentences were each
supported by a course-of-conduct specification under R.C. 2929.04(A)(5).
Mammone at ¶ 189. And one of Mammone’s death sentences was supported by a
specification for committing murder in the course of an aggravated burglary under
R.C. 2929.04(A)(7), while the other two were each supported by a specification for
committing the murder of a child under the age of 13 under R.C. 2929.04(A)(9).
Mammone at ¶ 189. This court found that Mammone had planned and prepared for
the murders for months and that he committed the murders as revenge against his
ex-wife. Id. at ¶ 190. Mammone stabbed and killed his children as they sat strapped
in their car seats and then drove to his mother-in-law’s home where he shot and
killed her. Id. Nicholson did not plan the murders he committed—rather, he
“snapped.”
{¶ 495} This court credited Mammone with several mitigating factors,
including the “difficult circumstances of [his] childhood,” id. at ¶ 237, and his
diagnosis of having a severe personality disorder, id. at ¶ 239. Those factors,
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SUPREME COURT OF OHIO
however, did not outweigh the aggravating circumstances of the three preplanned,
brutal murders that Mammone committed. Id. at ¶ 240. But the circumstances in
this case do not equate to those in Mammone, and Mammone does not support the
majority’s determination that Nicholson’s death sentences are proportionate and
appropriate.
{¶ 496} In Kirkland,

160 Ohio St.3d 389

157 N.E.3d 716

, we affirmed Kirkland’s death sentences following his convictions for the
aggravated murders of two teenage girls. Kirkland at ¶ 1-3. Kirkland was also
convicted of the murders of two adult women and sentenced to 70 years to life in
prison regarding those murders. Id. at ¶ 1.
{¶ 497} Kirkland gave police multiple accounts of how and multiple
reasons why he killed his victims, and he admitted setting two of the victims’ bodies
on fire. Id. at ¶ 16-28. Each of Kirkland’s two death sentences were based, in part,
on a course-of-conduct specification under R.C. 2929.04(A)(4). Id. at ¶ 145. He
was also found guilty of death-penalty specifications under R.C. 2929.04(A)(7) for
committing murder in the course of committing attempted rape and committing
murder in the course of committing aggravated robbery. Id. at ¶ 29-30, 145. He
was also found guilty of specifications under R.C.2929.04(A)(3) for committing
murder to escape detection. Id. at ¶ 145. As noted above, in this case, Nicholson
“snapped”; he did not plan the murders of M.L. and Giselle ahead of time or try to
cover up the murders. Nor is any other category of death-penalty specification
involved in this case.
{¶ 498} Further, Kirkland presented evidence that he suffered from
traumatic brain injuries that effected his ability to regulate his aggressive impulses.
Id. at ¶ 153. This court gave this evidence no weight in mitigation, however,
because “serious questions existed concerning [the] theories and diagnostic
methods” supporting the evidence of Kirkland’s brain scans and any potential
trauma-induced brain abnormalities. Id. at ¶ 173. In contrast, two experts testified
148
January Term, 2024
on Nicholson’s behalf and provided significant psychological mitigation evidence.
Each of their expert opinions complemented the other like a double helix, starkly
depicting a multigenerational cycle and trauma-filled environment that shaped
Nicholson’s brain development and resulted in his dangerously defective coping
skills.
{¶ 499} Moreover, Kirkland presented significant evidence of his
childhood abuse and neglect. Kirkland,

160 Ohio St.3d 389

157 N.E.3d 716

, at ¶ 164-169. But this court found that Kirkland “was in his late 30s
and early 40s” when he committed the murders and therefore “ ‘had considerable
time to distance himself from his childhood and allow other factors to assert
themselves in his personality and his behavior,’ ” id. at ¶ 175, quoting State v.
Campbell,

95 Ohio St.3d 48

, 53,

765 N.E.2d 334

 (2002). Relying on that antiquated
view of the effect of a person’s childhood trauma on his or her development, this
court assigned no weight in mitigation to Kirkland’s difficult childhood,

id.

 In
contrast, Nicholson’s experts explained how the trauma he experienced during his
childhood was compounded as he aged and that he had lacked necessary mental-
health treatment to develop constructive ways to cope with loss, which were
significant mitigating factors regarding Nicholson’s commission of the murders.
{¶ 500} Kirkland also presented evidence of his history of alcohol and drug
abuse, which this court gave some weight in mitigation, id. at ¶ 176, and Kirkland
confessed to his offenses, which we also gave some weight, id. at ¶ 177. But when
combined, the mitigating factors in Kirkland’s case did not outweigh the significant
aggravating circumstances of the murders. Id. at ¶ 180.
{¶ 501} Hundley, Mammone, and Kirkland do not support a finding that
Nicholson’s death sentences are proportionate and appropriate. Mammone and
Kirkland involved additional death specifications beyond the course-of-conduct
specification.     For that reason alone, those cases are inapplicable to the
proportionality review in this case. And while the only death specification in
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SUPREME COURT OF OHIO
Hundley was a course-of-conduct specification, Hundley’s conduct was far more
depraved than Nicholson’s and he presented no mitigating evidence,

162 Ohio St.3d 509