State v. Froman (Slip Opinion)

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Froman, Slip Opinion No. 2020-Ohio-4523.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2020-OHIO-4523
THE STATE OF OHIO, APPELLEE, v. FROMAN, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Froman, Slip Opinion No. 2020-Ohio-4523.]
Criminal law—Aggravated murder—Findings of guilt and death sentence affirmed.
(No. 2017-0938—Submitted June 12, 2019—Decided September 24, 2020.)
APPEAL from the Court of Common Pleas of Warren County,
No. 2014-CR-30398.
__________________
O’CONNOR, C.J.
{¶ 1} Appellant, Terry Lee Froman, appeals as of right his aggravated-
murder conviction and accompanying death sentence. A Warren County jury found
Froman guilty of the aggravated murder of Kimberly Thomas and of two death-
penalty specifications: committing aggravated murder as part of a course of conduct
involving the purposeful killing of two or more persons (Thomas and her son,
Michael Eli Mahoney (“Eli”)), R.C. 2929.04(A)(5); and committing aggravated
murder during the commission of a kidnapping, R.C. 2929.04(A)(7). The jury
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recommended a sentence of death. The Warren County Court of Common Pleas
accepted that recommendation and sentenced Froman accordingly.
{¶ 2} We affirm Froman’s judgment of conviction and death sentence.
I. TRIAL EVIDENCE
A. Thomas’s relationship with Froman
{¶ 3} Evidence introduced at trial indicated that Froman and Thomas had
dated for approximately four years. Froman lived with Thomas and her 17-year-
old son, Eli, in Mayfield, Kentucky. Thomas, a nurse, paid the rent and other bills.
{¶ 4} On the evening of August 20, 2014, Thomas ended her relationship
with Froman and asked him to move out. Until Froman had moved out, Thomas
and Eli stayed with Thomas’s father.
{¶ 5} On the morning of August 21, Froman went to Thomas’s workplace
at Mills Health and Rehab Center, a nursing home. Thomas’s coworker, Mary
Elizabeth Munsell, became alarmed when she saw Froman in Thomas’s office,
because she knew that Thomas and Froman had a troubled relationship that Thomas
had ended. Thomas’s supervisor knocked on Thomas’s office door and informed
Thomas that she was needed at a meeting. Before leaving, Froman told Thomas’s
supervisor, “Kim has made me lose everything, now I will make her lose everything
no matter the cost.” Froman then left the facility.
{¶ 6} Froman moved out of Thomas’s house over the Labor Day weekend.
After Froman had moved out, he twice texted Thomas’s next-door neighbor, Kurt
Stafford, and asked Stafford if any men had been at Thomas’s house. Stafford
responded “no” to the first text message, and regarding the second text message, he
said that he did not want to be involved.
B. Gunshots heard near Thomas’s home
{¶ 7} Around 5:00 a.m. on September 12, Stafford woke up after he heard
gunshots. He then heard another gunshot. His wife did not hear the gunshots and
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told him to go back to sleep. Around 6:00 a.m., Stafford went outside but he did
not notice anything out of the ordinary.
C. Abduction at the gas station
{¶ 8} Just after 7:00 a.m. on September 12, a 9-1-1 caller reported that a
woman had been abducted at a gas station in Paducah, Kentucky. Surveillance
video from the gas station showed Froman inside the gas station’s store and his
vehicle, a white GMC Yukon with an Illinois license plate with the number
“TRICKE1,” parked at a fuel pump. The vehicle was registered to Froman. The
video showed a naked woman, later identified as Thomas, exit the vehicle and start
running away. Froman rushed out of the store, grabbed Thomas by the hair, and
pushed her into the back seat of the vehicle. Froman then drove away.
D. Eli’s body found at Thomas’s house
{¶ 9} Police started looking for Froman following the abduction at the gas
station. They contacted Mills Health and Rehab Center on September 12 and
learned that Thomas had not been scheduled to work that day. One of Thomas’s
coworkers texted Thomas and asked her to “call me now, I need you now.” A little
before 10:00 a.m., Munsell received a text from Thomas’s number stating, “I’ll call
you in a minute.”
{¶ 10} Munsell and two of her colleagues then drove to Thomas’s house.
They saw Thomas’s and Eli’s cars in the driveway. They knocked on the doors and
a window and noticed what they thought was a smudge of blood on the front door’s
glass. Munsell then opened the unlocked front door, stepped inside, and saw Eli’s
body on the floor. Munsell could tell that he was dead and then called 9-1-1.
{¶ 11} Police arrived at Thomas’s house and found Eli lying on his back on
the living room floor. Glass fragments from a shattered table lay on the floor, and
there was blood spatter on the floor and walls. Eli had sustained bullet wounds to
the back of his head, his abdomen, and his right forearm. Police recovered a .40-
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caliber Smith & Wesson shell casing and an unfired .40-caliber Smith & Wesson
round next to his body.
E. Froman flees to Ohio
{¶ 12} After obtaining Froman’s phone number, police contacted Froman’s
cell-phone provider and asked the provider to “ping” Froman’s cell phone to
determine Froman’s location. Police used the “ping” information that it received
in response to track Froman’s location as he headed to Ohio.
F. Froman’s phone conversations with David Clark
{¶ 13} David Clark was a good friend of Froman and he knew Thomas and
Eli. Around 4:45 a.m. on September 12, Clark received five or six phone calls from
Froman, but he did not answer them. Clark testified that when he called Froman
back, Froman said that he “wanted to thank me for being a good friend. And then
he told me he * * * killed someone.” According to Clark, Froman did not
immediately say who he had killed. But Froman said that he had “done it with
[Froman’s] gun, so it was going to come back to him.” Froman later told Clark that
he had killed Eli. Froman said that he was “a couple of hours away,” but he would
not disclose his location.
{¶ 14} Clark drove to another friend’s home and encountered Froman’s
daughter, Alexis Froman (“Alexis”). Alexis was attempting to call her father.
Clark called Froman on his phone, and Alexis talked with Froman. She was crying
and asked Froman to “let Kim go.”
{¶ 15} After hearing that conversation, Clark, who was a police informant,
called his point of contact, Officer Jason Montgomery, at the Paducah Police
Department. Montgomery and Clark met in person about ten minutes later and then
went to the Paducah police station together.
{¶ 16} Montgomery took Clark to an interview room. Clark had several
phone conversations with Froman on speakerphone, which were videotaped.
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During the calls, Froman explained what had happened earlier that morning when
he shot Eli:
[Clark]: Did * * * he get in the way or something?
[Froman]: Yeah. I * * * got her out of the room, and tried
to * * * get her to walk out the door and she started screaming his
name. And he ran up on me. That was it.
***
[Clark]: What made you go to the house this morning?
[Froman]: I don’t know man. I don’t even know.
{¶ 17} Froman told Clark that Thomas was totally undressed and sleeping
“off and on” on the back-seat area of the vehicle. Clark implored Froman to
surrender himself to the police and to free Thomas without harming her:
[Clark]: Have you thought about letting her go?
[Froman]: Have I thought about it? No, not at all.
***
It’s too late. I mean it ain’t too late, but, I just can’t, I can’t, I can’t,
I can’t. I just got to. No ifs, ands, or buts about it.
***
I mean, I know you’re trying to talk me down, baby I appreciate it
and all. But like I said, I mean it’s just not going to happen. It’s just
not going to happen.
[Clark]: There’s still good stuff to live for, Fam.
[Froman]: Man, I already took one life, and I’m about to go
ahead and take two [more].
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G. Froman kills Thomas
{¶ 18} During a later phone call, Froman told Clark that the police were
following him. Froman repeated that he intended to kill Thomas:
[Froman]: I’m gonna kill her dude.
[Clark]: Don’t do it Fam. Don’t do it. * * * [J]ust pull over.
***
[Clark]: Well just, man, just pull over. Don’t do nothing.
[Froman]: I can’t do it man.
{¶ 19} The call was then disconnected. A short time later, Clark called
Froman again. Froman answered the phone and said, “She dead. I shot myself.”
He added, “I shot myself, and I shot her three times.”
H. The highway patrol arrests Froman and finds Thomas’s body in the back
seat of his vehicle
{¶ 20} Around 1:00 p.m. on September 12, the Ohio State Highway Patrol
(“OSHP”) received a message to be on the lookout for a Kentucky murder suspect
driving northbound on I-75 in a white GMC Yukon with an Illinois license plate
with the number “TRICKE1.” Troopers Nathan Stanfield and Christopher Creech
spotted Froman’s vehicle and pulled it over. Creech and Stanfield exited their
cruisers and then heard two gunshots.
{¶ 21} A short time later, two tactical teams approached Froman’s vehicle
and apprehended Froman, who was sitting in the driver’s seat with a gun in his
hand. Froman had a bullet wound in his left upper chest near his shoulder. He was
transported to a hospital for treatment.
{¶ 22} The troopers found Thomas’s dead body in the back seat of
Froman’s vehicle. Thomas had suffered four bullet wounds.
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I. Evidence found inside Froman’s vehicle
{¶ 23} An evidence technician with the OSHP recovered a Hi-Point .40-
caliber semiautomatic pistol from Froman’s vehicle containing a magazine with
four rounds of ammunition in it and a live round jammed in the firearm. Six spent
shell casings, three intact projectiles, two live rounds, and a bullet jacket were
recovered from inside the vehicle.
J. Forensic testing
{¶ 24} Matthew White, a firearms examiner with the Ohio Bureau of
Criminal Investigation, examined the gun found in Froman’s vehicle, determined
that it was operable, and concluded that the spent shell casings recovered from the
vehicle had been fired by that gun. White also determined that the spent shell casing
found near Eli’s body had been fired by the same gun. White compared test bullets
that he had fired through the gun with the bullet recovered from Eli’s body. Those
comparisons revealed similar class characteristics (i.e., the caliber, the number and
width of the lands and grooves, and the direction of the twist). However, there were
insufficient characteristics present to identify or eliminate the bullet as having been
fired by the gun.
K. Autopsy results
{¶ 25} Dr. Amy Burrows-Beckham, an assistant medical examiner with the
state of Kentucky, conducted the autopsy of Eli’s body. Eli had been shot in the
back of his head, his abdomen, and his right forearm. Dr. Burrows-Beckham
testified that the pattern of stippling around the abdominal entrance wound showed
that the gun had been fired from a distance of “about six inches.” She concluded
that gunshot wounds had caused Eli’s death.
{¶ 26} Dr. Susan Allen, a forensic pathologist with the Montgomery County
Coroner’s Office, conducted the autopsy of Thomas’s body. Thomas had been shot
in the back of her head, her right upper chest, her right breast, and her right upper
abdomen. Thomas had also suffered blunt force trauma to her torso, inner thighs,
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and extremities, a laceration on her upper lip, three lacerations on the top of her
head, and abrasions on her forehead and right cheek. She had a broken jaw and one
of her lower teeth had been knocked out. Dr. Allen determined that Thomas had
died from multiple gunshot wounds.
II. PROCEDURAL HISTORY
{¶ 27} The state charged Froman with two counts of aggravated murder.
Count 1 charged him with the aggravated murder of Thomas with prior calculation
and design. Count 2 charged him with the aggravated murder of Thomas while
committing a kidnapping. Both counts contained two death-penalty specifications:
(1) committing aggravated murder as part of a course of conduct involving the
purposeful killing of two or more persons (Thomas and Eli), R.C. 2929.04(A)(5);
and (2) committing aggravated murder during the commission of a kidnapping,
R.C. 2929.04(A)(7). Counts 3 and 4 charged Froman with kidnapping Thomas.
All counts included a firearm specification.
{¶ 28} Froman pleaded not guilty to all the charges. The jury found Froman
guilty of all the counts and specifications in the indictment.
{¶ 29} The state elected to proceed to the mitigation phase on Count 1 and
its accompanying specifications. Following the mitigation phase, the jury
recommended a sentence of death and the trial court subsequently sentenced
Froman to death.
{¶ 30} As to the noncapital offenses, the trial court merged Counts 3 and 4
for the purposes of sentencing. Froman was sentenced to 11 years on Count 3 and
to 6 years on the remaining specifications, for a total of 17 years on the noncapital
offenses.
III. ISSUES ON APPEAL
{¶ 31} Froman raises 14 propositions of law. We will address the issues
involved in those propositions of law in the approximate order that they arose
during Froman’s trial.
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A. Jurisdiction
{¶ 32} In proposition of law No. 1, Froman argues that the trial court lacked
jurisdiction over the course-of-conduct death-penalty specifications because Eli
was murdered in Kentucky.
1. Relevant statutes
{¶ 33} R.C. 2901.11, Ohio’s criminal-law-jurisdiction statute, states the
following:
(A) A person is subject to criminal prosecution and
punishment in this state if any of the following occur:
(1) The person commits an offense under the laws of this
state, any element of which takes place in this state.
***
(B) In homicide, the element referred to in division (A)(1) of
this section includes the act that causes death, the physical contact
that causes death, the death itself, or any other element that is set
forth in the offense in question. If any part of the body of a homicide
victim is found in this state, the death is presumed to have occurred
within this state.
(Emphasis added.)
{¶ 34} R.C. 2929.04 sets forth the aggravating circumstances that must be
specified in the indictment and proved by the state beyond a reasonable doubt in
order for a court to impose the death penalty for an aggravated-murder offense.
Relevant here, the course-of-conduct specification in R.C. 2929.04(A)(5) states the
following:
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(A) Imposition of the death penalty for aggravated murder is
precluded unless one or more of the following is specified in the
indictment or count in the indictment pursuant to section 2941.14 of
the Revised Code and proved beyond a reasonable doubt:
***
(5) Prior to the offense at bar, the offender was convicted of
an offense an essential element of which was the purposeful killing
of or attempt to kill another, or the offense at bar was part of a course
of conduct involving the purposeful killing of or attempt to kill two
or more persons by the offender.
2. Analysis
{¶ 35} Froman argues that the trial court lacked jurisdiction over the course-
of-conduct specification because Eli’s murder had taken place in Kentucky and
none of the elements of that offense occurred in Ohio. Froman’s argument
presumes that the course-of-conduct specification constituted a separate offense.
But R.C. 2929.04 does not define separate offenses; it sets forth aggravating
circumstances that the state must prove beyond a reasonable doubt in order for the
trial court to impose the death penalty for an aggravated-murder offense. Indeed,
both this court and the United States Supreme Court have held that aggravating
circumstances do not constitute separate offenses. See, e.g., State v. Dennis, 79
Ohio St. 3d 421, 432, 683 N.E.2d 1096 (1997) (“specifications required for the
imposition of the death penalty do not, in and of themselves, constitute separate
criminal offenses”); Poland v. Arizona, 476 U.S. 147, 156, 106 S. Ct. 1749, 90
L. Ed. 2d 123 (1986) (“Aggravating circumstances are not separate penalties or
offenses”); see also Commonwealth v. Mattison, 623 Pa. 174, 200-201, 82 A.3d
386 (2013) (same); State v. Simmons, 955 S.W.2d 752, 759-760 (Mo.1997) (same).
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{¶ 36} Under R.C. 2901.11(A)(1), a trial court in Ohio has criminal-law
jurisdiction over a person who has committed an offense when any element of the
offense occurred in Ohio. Here, the offense was the aggravated murder of Thomas,
which had occurred in Warren County, Ohio. Thus, the trial court had jurisdiction
over the offense of Thomas’s murder and its accompanying course-of-conduct
specifications. The fact that the course-of-conduct specification included the
murder of Eli that had occurred in Kentucky did not divest Ohio of jurisdiction over
the offense of Thomas’s murder.
{¶ 37} Froman cites this court’s decision in State v. Yarbrough, 104 Ohio
St.3d 1, 2004-Ohio-6087, 817 N.E.2d 845, in arguing that he could not have been
properly tried in Ohio for the course of conduct involving Eli’s murder in Kentucky.
But the facts in Yarbrough are distinguishable from those in this case and the
General Assembly has amended Ohio’s criminal-jurisdiction statute since
Yarbrough was decided.
{¶ 38} In Yarbrough, the defendant had kidnapped two college students in
Ohio and later murdered them in Pennsylvania. Id. at ¶ 6, 9-10. This court held
that Ohio lacked jurisdiction to try the defendant for those out-of-state murders. Id.
at ¶ 44. But our decision in Yarbrough relied on former R.C. 2901.11, the criminal-
jurisdiction statute that was in effect at the time of the murders in that case. Id. at
¶ 42-44. Former R.C. 2901.11(B) provided, “In homicide, the element referred to
in division (A)(1) of this section is either the act which causes the death, or the
physical contact which causes death, or the death itself.” Am.Sub.H.B. No. 565,
147 Ohio Laws, Part II, 4493, 4498.
{¶ 39} But R.C. 2901.11 was amended in 2005 after Yarbrough had been
decided and prior to the offenses that took place in this case. In that amendment,
the General Assembly expanded R.C. 2901.11(B) to state, “In homicide, the
element referred to in division (A)(1) of this section includes the act that causes
death, the physical contact that causes death, the death itself, or any other element
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that is set forth in the offense in question.” (Emphasis added.) Am.Sub.S.B. No.
20, 151 Ohio Laws, Part I, 10, 11. The General Assembly also added an uncodified
provision “declar[ing] that it intends by the amendments * * * of this act to
prospectively overrule the decision of the Ohio Supreme Court in State v.
Yarbrough (2004), 104 Ohio St. 3d 1.” Section 3, 151 Ohio Laws, Part I, at 15.
Accordingly, Yarbrough does not control our decision here.
{¶ 40} Based on the foregoing, we reject proposition of law No. 1.
B. Evidence relating to Eli’s murder in Kentucky
{¶ 41} In proposition of law No. 2, Froman argues that even assuming that
Ohio had jurisdiction over the course-of-conduct specification, the trial court
abused its discretion in admitting evidence relating to Eli’s murder because it was
inadmissible “other acts” evidence.1 Froman objected to this evidence during
pretrial hearings and the trial court overruled those objections.
{¶ 42} Evid.R. 404(B) provides: “Evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to show action in
conformity therewith. It may, however, be admissible for other purposes, such as
proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or
absence of mistake or accident.”
{¶ 43} Two counts in the indictment included a course-of-conduct
specification alleging that Froman had murdered Eli as part of a course of conduct
involving “the purposeful killing of or attempt to kill two or more persons.” R.C.
2929.04(A) specifically requires that capital specifications be proved beyond a
reasonable doubt. See also State v. Montgomery, 148 Ohio St. 3d 347, 2016-Ohio-
5487, 71 N.E.3d 180, ¶ 72; State v. LaMar, 95 Ohio St. 3d 181, 2002-Ohio-2128,
767 N.E.2d 166, ¶ 51. Thus, the evidence that Froman had murdered Eli in
1. Froman also specifically attacks in his other-acts-evidence challenge the trial court’s admission
of “graphic, gruesome” crime-scene photographs of Eli. This claim will be addressed below in our
analysis of proposition of law No. 10.
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Kentucky was admissible to prove the course-of-conduct specification and was not
prohibited other-acts evidence intended to prove Froman’s character or that he had
acted in conformity with that character. Accordingly, the trial court did not abuse
its discretion in overruling Froman’s objections to the alleged other-acts evidence.
{¶ 44} Froman also argues that the evidence relating to Eli’s murder was
admitted in violation of Evid.R. 403. Evid.R. 403(A) states that a trial court must
exclude evidence, regardless of its relevance, if “its probative value is substantially
outweighed by the danger of unfair prejudice, of confusion of the issues, or of
misleading the jury.” “Unfairly prejudicial evidence usually appeals to the jury’s
emotions, rather than to intellect.” State v. Thompson, 141 Ohio St. 3d 254, 2014-
Ohio-4751, 23 N.E.3d 1096, ¶ 112. “The admission or exclusion of relevant
evidence rests within the sound discretion of the trial court.” State v. Sage, 31 Ohio
St.3d 173, 510 N.E.2d 343 (1987), paragraph two of the syllabus.
{¶ 45} Froman argues that the sole purpose of the evidence relating to Eli’s
murder in Kentucky was the “emotional presentation” of the murder of a “17-year-
old son coming to [his] mother’s aid” and that it was intended “to tug at the jury’s
heartstrings rather than [its] intellect.” But the state had to prove that Froman had
purposely killed Eli in order to prove the course-of-conduct specification. Even
assuming that Froman’s characterization of the evidence is reasonable, the
probative value of the evidence substantially outweighed any danger of unfair
prejudice, confusion of the issues, or of misleading the jury. Evid.R. 403(A); see
Thompson at ¶ 113-114.
{¶ 46} The trial court did not explicitly state its findings regarding its
application of Evid.R. 403(A). However, we have stated that “Evid.R. 403(A)
establishes a standard but does not require a trial court to explicitly state in its
judgment entry that the probative value of the ‘other acts’ evidence outweighs it
prejudicial impact.” State v. Bey, 85 Ohio St. 3d 487, 489, 709 N.E.2d 484 (1999).
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Thus, the trial court’s failure to explicitly state its findings regarding its weighing
process under Evid.R. 403(A) was not error.
{¶ 47} Based on the foregoing, we reject proposition of law No. 2.
C. Biased jurors
{¶ 48} In proposition of law No. 3, Froman argues that the seating of juror
Nos. 5, 13, 46, and 49 violated his right to a fair and impartial jury under the Sixth
and Fourteenth Amendments to the United States Constitution because those jurors
had expressed racial bias on their juror questionnaires or during voir dire. Froman
additionally argues that juror No. 49 had also expressed bias in favor of the death
penalty. Froman additionally argues in proposition of law No. 4 that his counsel
were ineffective for failing to question or remove juror No. 49 from the panel during
voir dire.
1. Racial bias
{¶ 49} “Pursuant to the Sixth and Fourteenth Amendments, a criminal
defendant is guaranteed the right to an impartial and unbiased jury.” Miller v.
Webb, 385 F.3d 666, 672 (6th Cir.2004); see also Morgan v. Illinois, 504 U.S. 719,
727, 112 S. Ct. 2222, 119 L. Ed. 2d 492 (1992). Voir dire serves the purposes of
allowing the court and the parties to identify and remove jurors to ensure an
impartial jury. Miller at 672. Although counsel and the trial court have broad
discretion in determining a juror’s ability to be impartial, State v. White, 82 Ohio
St.3d 16, 20, 693 N.E.2d 772 (1998), “the decision whether to seat a biased juror
cannot be a discretionary or strategic decision,” Miller at 675. Thus, when a juror
who has exhibited actual bias against a defendant is seated on the jury, the
defendant’s Sixth Amendment right to an impartial jury has been violated.
{¶ 50} “Actual bias is ‘bias in fact’—the existence of a state of mind that
leads to an inference that the person will not act with entire impartiality.” United
States v. Torres, 128 F.3d 38, 43 (2d Cir.1997); see also United States v. Wood, 299
U.S. 123, 133, 57 S. Ct. 177, 81 L. Ed. 78 (1936). Actual bias can be shown by a
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juror’s express admission or circumstantial evidence of the juror’s biased attitude.
Hughes v. United States, 258 F.3d 453, 459 (6th Cir.2001). For example, courts
have found actual bias when a juror unequivocally stated that she could not be fair
due to her law-enforcement bias, id. at 459-460, when jurors had fixed opinions of
the defendant’s guilt based on pretrial publicity, Irvin v. Dowd, 366 U.S. 717, 727-
728, 81 S. Ct. 1639, 6 L. Ed. 2d 751 (1961), and when a juror expressed views on the
death penalty that “ ‘would “prevent or substantially impair the performance of his
duties as a juror in accordance with his instructions and his oath,” ’ ” Morgan at
728, quoting Wainwright v. Witt, 469 U.S. 412, 424, 105 S. Ct. 844, 83 L. Ed. 2d 841
(1985), quoting Adams v. Texas, 448 U.S. 38, 45, 100 S. Ct. 2521, 65 L. Ed. 2d 581
(1980).
{¶ 51} For a defendant’s conviction to be reversed for ineffective assistance
of counsel, the defendant must show that his counsel’s performance was deficient
and that the deficient performance prejudiced the defense so as to deprive the
defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984); accord State v. Bradley, 42 Ohio St. 3d 136, 538
N.E.2d 373 (1989), paragraphs two and three of the syllabus.
{¶ 52} In State v. Bates, 159 Ohio St. 3d 156, 2020-Ohio-634, 149 N.E.3d
475, ¶ 25-26, we recently clarified a court’s duties when applying the prejudice
prong under Strickland in the context of counsel’s failure to address juror bias. To
demonstrate prejudice, the defendant “ ‘ “must show that [a] juror was actually
biased against him.” ’ ” Id. at ¶ 25, quoting State v. Mundt, 115 Ohio St. 3d 22,
2007-Ohio-4836, 873 N.E.2d 828, ¶ 67, quoting Miller v. Francis, 269 F.3d 609,
616 (6th Cir.2001). “[A]ctual racial bias may be present without a demonstration
of bias against the defendant personally if the juror’s statement rises to a level of
generality about a racial or ethnic group that indicates the juror’s inability to be
impartial in the particular case before him or her.” (Emphasis sic.) Id. at ¶ 35.
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a. Juror No. 49
{¶ 53} Froman argues that juror No. 49’s responses on her juror
questionnaire and during voir dire clearly show that she was racially biased.
Question No. 50 on the general juror questionnaire asked the potential jurors about
“the issue of racial discrimination against African-Americans in our society.” Juror
No. 49 checked a box under that question indicating that it is “not a problem.” She
responded affirmatively to another question asking, “Have you ever had a negative
or frightening experience with a person of another race?” She clarified in writing
that “an African-American male approach[ed] our training center at night and
call[ed] us names and made derogatory remarks.” The questionnaire asked if she
agreed with a comment stating that “[s]ome races and/or ethnic groups tend to be
more violent than others,” and juror No. 49 checked the box corresponding to the
answer “Strong[ly] agree.” She explained in writing, “Statistics show * * * more
black people commit crimes. And certain religions have violent beliefs.”
{¶ 54} During small-group voir dire, the prosecutor asked juror No. 49
about her views on race:
[Prosecutor]: As you will remember from filling out those
23 page questionnaires a while back, there were numerous questions
on there about race. And one of the reasons that there were
questions about race on there is because nobody wants someone on
this jury who would automatically vote for the death penalty because
an African American is accused of killing a white person. Does that
make sense to everybody?
***
I also want to make sure that we do not have any jurors who
would be reluctant to consider the death penalty in this case for fear
that you may be perceived as being racist or making your decision
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based on race given the fact that the Defendant is African American
and the victim is white.
[Juror No. 49], would you have any concerns that you would
be reluctant to consider the death penalty in this case for fear of how
you or the jury as a whole may be perceived based on the fact that
the Defendant is African American and the victims are white?
[Juror No. 49]: No.
[Prosecutor]: Do you agree that race should not play any
role in the decisionmaking process whatsoever?
[Juror No. 49]: I totally agree.
Defense counsel did not inquire about juror No. 49’s views on race and she was
seated on the jury.
{¶ 55} Juror No. 49’s questionnaire responses indicated that she had
racially-biased views, particularly her statement that “statistics show * * * more
black people commit crimes.” As we observed in Bates, a juror’s predisposition
about a person’s propensity for violence based on the person’s race is an express
admission of racial bias. 159 Ohio St. 3d 156, 2020-Ohio-634, 149 N.E.3d 475, at
¶ 39, fn. 3. Unlike in Bates, however, when the prosecutor here questioned juror
No. 49 about the impact of her views on race on her ability to be an impartial juror,
she unequivocally agreed with the prosecutor that race should not play any role in
the decisionmaking process.
{¶ 56} In deciding whether a defendant has proved that a juror was actually
biased, a court may consider the juror’s assurances of impartiality. Hughes, 258
F.3d at 459-460. The standard for juror impartiality has been described as follows:
“To hold that the mere existence of any preconceived notion as to
the guilt or innocence of an accused, without more, is sufficient to
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rebut the presumption of a prospective juror’s impartiality would be
to establish an impossible standard. It is sufficient if a juror can lay
aside his impression or opinion and render a verdict based on the
evidence presented in court.”
Id. at 459, quoting Irvin, 366 U.S. at 723, 81 S. Ct. 1639, 6 L. Ed. 2d 751.
{¶ 57} On the whole, we conclude that juror No. 49’s responses on her
general questionnaire do not show her inability to be impartial in this case, based
on her assurance during voir dire that she could set aside her opinions on race and
decide the case based on the evidence. When the prosecutor asked juror No. 49 if
she agreed that race should not play any role in the decisionmaking process
whatsoever, she responded, “I totally agree.” In light of this assurance of
impartiality, the record does not support Froman’s argument that juror No. 49 was
actually biased against him. Thus, we reject Froman’s claim in proposition of law
No. 3 that he was denied his right to an impartial jury due to the seating of juror
No. 49. For the same reason, we reject Froman’s ineffective-assistance claim in
proposition of law No. 4 with respect to juror No. 49.
b. Juror Nos. 5, 13, and 46
{¶ 58} Froman argues that juror Nos. 5, 13, and 46, all of whom were seated
on the jury, expressed racial bias in their responses to questions on their jury
questionnaires. On the general questionnaire, question No. 54 presented a comment
stating, “Some races and/or ethnic groups tend to be more violent than others” and
directed the jurors to select one of five possible answers. Jurors Nos. 5, 13, and 46
each checked the box corresponding to the response “Agree.” Although the
questionnaire provided space for a written explanation, none of these jurors
provided any explanation for their answers or identified a particular race or ethnic
group. Froman argues that his trial counsel or the trial court should have questioned
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these jurors to follow up on their “blatantly expressed racial views expressed in the
questionnaires.”
{¶ 59} Other responses on the questionnaires of juror Nos. 5, 13, and 46
indicated that they had more neutral or sensitive views on the topic of race than
indicated by their responses to question No. 54. For example, question No. 52
asked, “Have you ever had a negative or frightening experience with a person of
another race?” All three jurors responded with the answer “No.” Question No. 53
asked, “Have you ever been exposed to persons who exhibited racial, sexual,
religious, and/or ethnic prejudice?” Juror No. 13 responded affirmatively,
explaining, “Friends using words that shouldn’t be used.” Question No. 50 asked
about “the issue of racial discrimination against African-Americans in our society.”
Juror No. 46 checked a box indicating she believed it is “[a] very serious problem.”
{¶ 60} Juror Nos. 5, 13, and 46 were not individually questioned during voir
dire about their questionnaire responses or their views on race. But during small-
group voir dire, juror Nos. 5 and 13 expressed agreement when the prosecutor asked
their small-group panel: “Do all of you agree that race should not play any role in
the decisionmaking process whatsoever?”
{¶ 61} We do not agree that, as Froman argues, the questionnaire responses
of juror Nos. 5, 13, and 46 demonstrate “blatantly expressed racial views.” The
record does not demonstrate that the jurors were unable to be impartial, and Froman
has not established they were actually biased against him. We reject Froman’s
arguments under proposition of law No. 3 with respect to juror Nos. 5, 13, and 46.
2. Death-penalty bias
{¶ 62} Additionally, Froman argues that juror No. 49 was biased in favor of
the death penalty and that he was denied his right to an impartial jury as a result.
{¶ 63} A prospective juror in a capital case may be excused for cause if his
views on capital punishment would “ ‘prevent or substantially impair the
performance of his duties as a juror in accordance with his instructions and his
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oath.’ ” Wainwright, 469 U.S. at 424, 105 S. Ct. 844, 83 L. Ed. 2d 841, quoting
Adams, 448 U.S. at 45, 100 S. Ct. 2521, 65 L. Ed. 2d 581. If a juror would
“automatically vote for the death penalty in every case,” the juror cannot be fair
and impartial because he “will fail in good faith to consider the evidence of
aggravating and mitigating circumstances as the instructions require him to do.”
Morgan, 504 U.S. at 729, 112 S. Ct. 2222, 119 L. Ed. 2d 492. “If even one such juror
is empaneled and the death sentence is imposed, the State is disentitled to execute
the sentence.” Id.
{¶ 64} Juror No. 49 first indicated her attitude toward the death penalty on
her case-specific juror questionnaire. In response to a question asking “[w]hich of
the following best reflects your view of the death penalty,” juror No. 49 checked a
box indicating she believed that the death penalty is “[a]ppropriate with very few
exceptions where someone has been murdered.” In response to the statement, “The
death penalty should always be used as the punishment for every murder,” juror
No. 49 checked a box labeled “Slightly disagree.” (Boldface sic.)
{¶ 65} During small-group voir dire, the trial court asked juror No. 49 about
her views on the death penalty.
[The Court]: Are you in favor of the death penalty in every
case where a murder is committed?
[Juror No. 49]: Yes.
[The Court]: Okay. So you are saying that if you are
selected as a juror and the murder is proven, you’re going to
automatically vote—tell me what your position is. You’re going to
automatically vote in favor of the death penalty, period, if a murder
is proven?
[Juror No. 49]: I don’t know if I would say automatically,
but very strongly.
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January Term, 2020
{¶ 66} During further voir dire, the prosecutor questioned juror No. 49 to
determine whether she would automatically vote for the death sentence if Froman
were to be convicted of aggravated murder:
[Prosecutor]: [Juror No. 49], I know that you indicated that
you were strongly in favor of the death penalty. Is it fair to say,
though, would you listen to any mitigating factors that the Defense
may put forward in this case and weigh those mitigating factors
against any aggravating circumstances that you find?
[Juror No. 49]: I would but if I’m being honest, it would be
really hard for me to not see the death penalty as a proper
punishment.
[Prosecutor]: And that’s okay. * * * But the main thing that
I want to understand, I understand that you would lean in favor of
the death penalty, but you would be willing to consider anything that
was brought before you as potentially a mitigating factor or an
aggravating circumstance and at least engage in the weighing
process. Is that fair to say?
[Juror No. 49]: That’s fair to say, yes.
{¶ 67} Juror No. 49 provided contradictory responses to questions about the
automatic imposition of the death penalty in murder cases on her questionnaire and
during voir dire. But we have noted that prospective jurors often have difficulty
articulating their views during voir dire. See, e.g., State v. Mammone, 139 Ohio
St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, ¶ 90. “[I]t is not uncommon for jurors
to express themselves in contradictory and ambiguous ways” during voir dire, “both
due to unfamiliarity with courtroom proceedings * * * and because the jury pool
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runs the spectrum in terms of education and experience.” White v. Mitchell, 431
F.3d 517, 537 (6th Cir.2005); see also Patton v. Yount, 467 U.S. 1025, 1039, 104
S. Ct. 2885, 81 L. Ed. 2d 847 (1984).
{¶ 68} In this case, juror No. 49’s questionnaire responses reflected some
uncertainty about whether she thought that the death penalty was appropriate in
every case in which a murder had been proved. In response to the prosecutor’s
follow-up questions, however, juror No. 49 indicated her willingness to consider
mitigating evidence and to engage in the process of weighing the mitigating factors
and aggravating circumstances in spite of her views in favor of the death penalty.
Thus, the prosecutor obtained her assurance that she could be impartial. See
Hughes, 258 F.3d at 459-460. Accordingly, the record does not show that juror No.
49 was actually biased in favor of the death penalty. We reject proposition of law
No. 3 with respect to Froman’s argument that Juror No. 49 exhibited such bias.
D. Shackling
{¶ 69} In proposition of law No. 9, Froman argues that the trial court denied
him his rights to due process and a fair trial under the United States and Ohio
Constitutions by requiring him to wear leg shackles during the trial.
{¶ 70} Absent unusual circumstances, no one should be tried while
shackled. State v. Neyland, 139 Ohio St. 3d 353, 2014-Ohio-1914, 12 N.E.3d 1112,
¶ 82; Illinois v. Allen, 397 U.S. 337, 344, 90 S. Ct. 1057, 25 L. Ed. 2d 353 (1970).
The use of restraints tends to erode the presumption of innocence that the justice
system attaches to every defendant. State v. Franklin, 97 Ohio St. 3d 1, 2002-Ohio-
5304, 776 N.E.2d 26, ¶ 79. But it is widely accepted that a defendant may be
shackled when there is a danger of violence or escape. State v. Woodards, 6 Ohio
St.2d 14, 23, 215 N.E.2d 568 (1966). The decision to require a defendant to wear
restraints is left to the sound discretion of the trial court, which is in a position to
consider the defendant’s actions both inside and outside the courtroom, as well as
his demeanor while the court is in session. Franklin at ¶ 79.
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January Term, 2020
1. Rulings on restraints
{¶ 71} Before trial, the trial court held a hearing on Froman’s motion
requesting that he be permitted to appear at all court proceedings without restraints.
Major Barry Riley, the jail administrator for the Warren County Sherriff’s Office,
testified that the sheriff’s office initially classified Froman as a “medium
maximum” security risk because he had been charged with a “very violent felony”
that involved interstate fleeing and had shot himself. But Froman’s security
classification had later been increased, because “holders” had been placed on him
for capital crimes committed in Kentucky. Riley also testified that Froman had hit
another inmate in the head and had entered another inmate’s cell and “took
commissary that was owed to him.” Riley recommended that Froman remain in
“full level restraints” while in court.
{¶ 72} After the hearing, the trial court issued an order establishing a
security protocol for Froman’s court attendance. The court determined that
“[b]ased on the evidence and arguments of counsel, * * * the nature of the
proceedings and the specific security risks posed by this Defendant require a higher
level of security.” Accordingly, the court ordered that Froman be transported to
and from the courtroom in restraints. The courtroom was to be cleared of the public
before Froman entered, any restraints other than leg restraints were to be removed
before the public was readmitted, and the courtroom was to be cleared again at the
close of the proceedings prior to Froman’s departure. The court further directed
that a “modesty panel” be placed under both counsel tables to “obscure the leg
restraints from the view of the jury.” Finally, the court determined that the
protocols established by its order were the “least restrictive means of security and
restraint available.”
2. Analysis
{¶ 73} Under the circumstances of this case, the trial court did not abuse its
discretion in ordering Froman to wear leg restraints during trial. See State v. Myers,
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154 Ohio St. 3d 405, 2018-Ohio-1903, 114 N.E.3d 1138, ¶ 44. Froman has also not
shown that his due-process rights were violated. Due process “prohibit[s] the use
of physical restraints visible to the jury absent a trial court determination, in the
exercise of its discretion, that they are justified by a state interest specific to a
particular trial.” Deck v. Missouri, 544 U.S. 622, 629, 125 S. Ct. 2007, 161 L.Ed.2d.
953 (2005). “[A] claim based on Deck ‘rises or falls on the question of whether the
[restraining device] was visible to the jury.’ ” Leonard v. Warden, Ohio State
Penitentiary, 846 F.3d 832, 842 (6th Cir.2017), quoting Earhart v. Konteh, 589
F.3d 337, 349 (6th Cir.2009). Here, the trial court’s protocol ensured that the
shackles were not visible to the jury, and nothing in the record indicates otherwise.
See Myers at ¶ 44.
{¶ 74} Froman claims that the jury was aware of the shackles because the
shackles “made noise and clanked.” However, defense counsel never complained
that the shackles made noise during the trial. Thus, Froman’s claim that the jury
was aware of the shackles is mere speculation. See id. at ¶ 46.
{¶ 75} Froman also complains that the leg shackles inhibited his ability to
effectively participate in his defense and to interact with his defense counsel.
However, neither Froman nor his defense counsel ever asserted at trial that
Froman’s restraints interfered with their attorney-client relationship. Froman has
therefore forfeited all but plain error regarding that argument. Crim.R. 52(B); see
Neyland, 139 Ohio St. 3d 353, 2014-Ohio-1914, 12 N.E.3d 1112, at ¶ 106. We hold
that no plain error occurred. Nothing in the record indicates that Froman’s leg
restraints inhibited his communication with counsel or his ability to participate in
his defense. Moreover, both of Froman’s hands were unrestrained throughout trial.
{¶ 76} Finally, Froman claims that his being in leg shackles all day while
in court affected his mental concentration and physical comfort. But Froman never
made those complaints during trial and, on the record before us, we cannot conclude
that plain error occurred.
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January Term, 2020
{¶ 77} Based on the foregoing, we reject proposition of law No. 9.
E. Crim.R. 16(K) compliance
{¶ 78} In proposition of law No. 6, Froman argues that the trial court erred
by allowing Jeffrey Brenner, an audiovisual-forensics analyst with the Ohio
Attorney General’s Office, to provide expert testimony about the videotaped
recordings of the phone calls between Froman and Clark, because the state did not
comply with Crim.R. 16(K) prior to trial.
{¶ 79} Crim.R. 16(K) precludes the testimony of an expert witness for
either party unless the expert has prepared a written report and summary of the
expert’s qualifications and the report and summary are disclosed to the opposing
party “no later than twenty-one days prior to trial.”
{¶ 80} On the first day of voir dire, Froman’s defense counsel requested the
trial court to exclude Brenner’s testimony, because the state had failed to provide
the defense with Brenner’s “Forensic Tape Analysis Video Laboratory Report” 21
days before trial as required by Crim.R. 16(K). In the alternative, Froman’s defense
counsel requested a continuance so that the defense could hire an expert to review
Brenner’s report.
{¶ 81} The prosecutor responded that Brenner was not an expert witness;
rather, the prosecutor said that Brenner was an “audiovisual representative” who
enhanced the videotaped recording of the phone conversations between Froman and
Clark by (1) filtering out extraneous noises and sounds, (2) deleting extraneous
conversations that had occurred between the phone calls, and (3) adding closed
captioning to help the jurors understand the conversations. The prosecutor told the
court that Brenner was going to describe the edits that he had made to the videotape
and that he was not going to render an opinion on anything at all.
{¶ 82} The trial court overruled Froman’s objection under Crim.R. 16(K),
concluding that the state would not be calling Brenner as an expert witness. The
trial court also denied Froman’s request for a continuance.
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{¶ 83} During the state’s case-in-chief, Brenner testified that he had
enhanced the audio quality of the videotape by using a “declicker tool to remove
click pop noises,” by using a graphic equalizer to lower background noises, and by
using a “Fast Fourier Filter to increase the volume of the spoken dialogue.” He
also added closed captioning to the videotape after the prosecutor had provided him
with the text to be added. And he deleted segments of the videotape that he had
been instructed to remove.
{¶ 84} During cross-examination, Brenner testified that he had been
qualified as an expert witness in one of the three previous cases in which he had
testified. Brenner considered himself to be an expert, because a person without his
training would not be able to enhance the audio quality of the recordings, add closed
captioning to them, or remove sections from the videotape.
{¶ 85} Following Brenner’s testimony, Clark testified that state’s exhibit
No. 51, which was the final enhanced videotape, fairly and accurately represented
the conversations that he had had with Froman. State’s exhibit No. 51 was then
played for the jury. The trial court later instructed the jury that the closed captioning
in the videotape had been provided to assist it in following the conversations and
was not evidence. The trial court also told the jury that “[i]f you find there is a
conflict between the subtitles and recording, it is the recording that controls.”
{¶ 86} Froman renewed his objections to Brenner’s testimony, the exhibits
identified by him, and the videotape and the conversations therein, and he moved
for a mistrial. The trial court overruled his objections and denied his motion for a
mistrial.
{¶ 87} As an initial matter, we must determine whether Brenner testified as
an expert. Expert testimony is defined in Evid.R. 702, and the determination of the
admissibility of expert testimony under Evid.R. 702 is entrusted to the trial court’s
discretion. Valentine v. Conrad, 110 Ohio St. 3d 42, 2006-Ohio-3561, 850 N.E.2d
683, ¶ 9. The determination is a preliminary issue under Evid.R. 104(A), which
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January Term, 2020
requires the trial court to determine preliminary questions concerning the
admissibility of evidence.
{¶ 88} Froman argues that Brenner was an expert witness because he
“interpret[ed]” the original videotape. But Brenner did not render an opinion as to
what words were spoken on the videotape. Rather, Brenner provided factual
testimony as to the enhancements and deletions and the addition of closed
captioning that he had performed to assist the jury in reaching a clear understanding
of the videotape.
{¶ 89} Froman also argues that the trial court should have qualified Brenner
as an expert witness because the average person could not perform his job duties.
However, “whether a witness must be qualified as an expert is based on the content
of the testimony rather than by the means in which it was obtained.” State v. Fread,
12th Dist. Butler No. CA2013-03-045, 2013-Ohio-5206, ¶ 15. Moreover, the fact
that Brenner had been qualified as an expert witness in a previous case did not
automatically render him an expert witness in this case.
{¶ 90} We conclude that the trial court did not abuse its discretion in ruling
that Brenner was a lay witness. As such, we do not reach Froman’s argument that
the state’s failure to comply with Crim.R. 16(K) should have precluded Brenner’s
testimony. Based on the foregoing, we reject proposition of law No. 6.
F. Denial of a continuance
{¶ 91} In proposition of law No. 7, Froman argues that the trial court abused
its discretion by denying his request for a continuance to obtain his own expert
witness to examine the enhanced videotape. The determination whether to grant a
continuance is entrusted to the broad discretion of the trial court. State v. Unger,
67 Ohio St. 2d 65, 67, 423 N.E.2d 1078 (1981), syllabus. Relevant factors include
the length of the delay requested, whether there had been prior continuances,
inconvenience, and the reasons for the delay. State v. Landrum, 53 Ohio St. 3d 107,
115, 559 N.E.2d 710 (1990).
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{¶ 92} Froman argues that a continuance was necessary to give the defense
time to hire its own expert to examine the enhanced videotape. However, as
discussed regarding proposition of law No. 6, Brenner was not an expert witness.
Moreover, Clark, who was a party to the recorded phone conversations, and Officer
Montgomery, who was present during those phone calls, reviewed the enhanced
videotape and testified that its contents were a fair and accurate representation of
what had been said during the conversations. Thus, Froman has not shown that he
had a valid, specific need for a defense expert to examine the enhanced videotape.
See State v. Spirko, 59 Ohio St. 3d 1, 18, 570 N.E.2d 229 (1991) (holding that trial
court did not abuse its discretion by denying defendant’s request for a continuance
because defendant failed to show a “particularized need” for the continuance).
{¶ 93} The inconvenience that a continuance would have caused also
supports the trial court’s denial of Froman’s request. The defense did not specify
how much time it would have needed to hire an expert to examine the videotape.
By the time that Froman had made the request, the venire had already been
summoned and a continuance could have delayed the beginning of the trial.
Further, at least two lengthy defense-requested delays had already been granted,
and another lengthy delay was granted after Froman had filed a pro se motion to
remove his counsel and new counsel were appointed.
{¶ 94} Considering all these factors, we conclude that the trial court did not
abuse its discretion by denying Froman’s motion for a continuance. Based on the
foregoing, we reject proposition of law No. 7.
G. Admissibility of Froman’s videotaped conversations
{¶ 95} In proposition of law No. 8, Froman argues that the trial court erred
by allowing the jury to view multiple videotapes of his phone conversations with
Clark and thereby violated his due-process rights and the best-evidence rule.
{¶ 96} As noted above in our analysis of proposition of law No. 6, Brenner
enhanced the videotaped phone conversations between Clark and Froman. Brenner
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January Term, 2020
testified that additional videotapes had also been prepared: state’s exhibit No. 47
was the original videotape; state’s exhibit No. 48 was the videotape with enhanced
audio; state’s exhibit No. 49 was the videotape with enhanced audio and closed
captioning; state’s exhibit No. 50 was the videotape with enhanced audio and
deleted downtime; and state’s exhibit No. 51 was the videotape with enhanced
audio, closed captioning, and deleted downtime.
{¶ 97} Over Froman’s objection, state’s exhibit No. 51 was played for the
jury, and state’s exhibit No. 50 was admitted into evidence and sent back with the
jury for its deliberations. The trial court explained that state’s exhibit No. 50, which
did not include the closed captioning, was being admitted to “leav[e] it to [the
jurors’] own interpretation of what was said.” State’s exhibit Nos. 47 through 49
and 51 were not admitted into evidence, but they were included as part of the record
for appellate purposes.
{¶ 98} As an initial matter, several aspects of Froman’s argument are based
on incorrect factual premises. He states that three different videotapes of the
conversations were identified and played for the jury without being admitted into
evidence. But only one videotape (state’s exhibit No. 51) was played for the jury,
and the jury was provided with only one videotape (state’s exhibit No. 50) for its
deliberations. And contrary to Froman’s claim, the trial court never stated that the
jury had seen videotape exhibits that were not admitted into evidence.
{¶ 99} Froman argues that even if only one video had been provided to the
jury, the “problem is the same—the exhibit(s) played was not the one sent back to
the jury.” “Where there are no ‘material differences’ between a tape admitted into
evidence and a transcript given to the jury as a listening aid, there is no prejudicial
error.” State v. Waddy, 63 Ohio St. 3d 424, 445, 588 N.E.2d 819 (1992); see State
v. Clinton, 153 Ohio St. 3d 422, 2017-Ohio-9423, 108 N.E.3d 1, ¶ 147-149
(videotape augmented by adding captioning is admissible if there are no “material
differences” between the videotape and the captioning). Froman has failed to
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identify any portion of the closed-captioned videotape that is inaccurate or any
material differences between state’s exhibit Nos. 50 and 51 other than the closed
captioning.
{¶ 100} Froman also invokes Evid.R. 1002—the “best evidence” rule—
which provides that to prove the contents of a writing, recording, or photograph,
the original version must be introduced at trial unless an exception applies. But the
best-evidence rule was not violated here because the closed-captioned videotape
(state’s exhibit No. 51) was not admitted into evidence. See Waddy at 445.
Moreover, Froman has failed to show that he was prejudiced, because the trial court
instructed the jurors to decide for themselves what Froman and Clark had said
during their conversations.
{¶ 101} Based on the foregoing, we reject proposition of law No. 8.
H. Gruesome autopsy photographs
{¶ 102} In proposition of law No. 10, Froman argues that the trial court
erred in admitting into evidence gruesome autopsy photographs of Eli and Thomas.
{¶ 103} We have “strongly caution[ed] judicious use” of gruesome
photographs in capital cases. State v. Morales, 32 Ohio St. 3d 252, 259, 513 N.E.2d
267 (1987). To be admissible, “the probative value of each photograph must
outweigh the danger of prejudice to the defendant and, additionally, not be
repetitive or cumulative in nature.” Id. at 258; see also State v. Thompson, 33 Ohio
St.3d 1, 9, 514 N.E.2d 407 (1987). The admission of gruesome photographs is left
to the trial court’s sound discretion. State v. Vrabel, 99 Ohio St. 3d 184, 2003-Ohio-
3193, 790 N.E.2d 303, ¶ 69.
1. Eli’s autopsy photographs
{¶ 104} Over Froman’s objection, the state introduced photographs of Eli’s
autopsy as state’s exhibit Nos. 126 through 145. Dr. Burrows-Beckham, an
assistant medical examiner, used the photographs to highlight her testimony about
Eli’s autopsy.
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January Term, 2020
{¶ 105} First, we note that state’s exhibit Nos. 128, 129, and 135 through
138—which depict Eli’s foot with a toe tag on it, an X-ray of Eli’s arm, the gunshot
wound to Eli’s forearm, and the recovered projectile itself—are not gruesome, and
therefore there was no error in admitting them into evidence.
{¶ 106} Second, we conclude that the probative value of each of the
remaining gruesome photographs of Eli’s autopsy, which were introduced for the
purpose of aiding the testimony of Dr. Burrows-Beckham concerning the nature of
Eli’s death, outweighed the danger of any prejudice to Froman. See Morales, 32
Ohio St. 3d at 258, 513 N.E.2d 267. However, we conclude that certain of the
photographs are repetitive. Specifically, state’s exhibit Nos. 126 and 127, which
depict the destructive nature of Eli’s head wounds, and State’s exhibit Nos. 130 and
131, which supported Dr. Burrows-Beckham’s testimony that Eli had been on his
stomach for approximately five hours before his body was discovered, are
repetitive. We conclude that only one photograph from each pair of those
photographs should have been admitted into evidence. Nevertheless, this error was
harmless beyond a reasonable doubt considering the overwhelming evidence of
Froman’s guilt. See Thompson, 33 Ohio St. 3d at 9, 514 N.E.2d 407.
2. Thomas’s autopsy photographs
{¶ 107} Over Froman’s objection, the state introduced photographs of
Thomas’s autopsy as state’s exhibit Nos. 148 through 181. Dr. Allen, a forensic
pathologist, used the photographs to describe her autopsy findings.
{¶ 108} First, we conclude that state’s exhibit Nos. 174 through 181 are not
gruesome, and therefore there was no error in admitting them into evidence.
{¶ 109} Second, we note that two photographs of Thomas’s autopsy had
little, if any, probative value. State’s exhibit No. 148 depicts Thomas’s body prior
to the autopsy, but it does not clearly show Thomas’s wounds. State’s exhibit No.
171 shows Thomas’s vaginal area, and it has no probative value because no sex
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offense was charged in this case. We conclude that neither of those photographs
should have been admitted into evidence.
{¶ 110} Next, we conclude that the probative value of each of the remaining
gruesome photographs of Thomas’s autopsy outweighed the danger of any
prejudice to Froman, because they aided the testimony of Dr. Allen concerning the
nature of Thomas’s death and Froman’s intent. See Morales, 32 Ohio St. 3d at 258,
513 N.E.2d 267. However, certain of the photographs are repetitive and should not
have been admitted into evidence. Specifically, state’s exhibit Nos. 158 and 159,
which each show a gunshot wound to Thomas’s head, are repetitive and only one
of them should have been admitted into evidence. State’s exhibit Nos. 150 through
152 and 154 through 156, which each show Thomas’s facial injuries, are also
repetitive and only the last three photographs from that group should have been
admitted into evidence. Additionally, state’s exhibit No. 170 is a cumulative
photograph of multiple wounds and it should not have been admitted into evidence.
{¶ 111} We hold that any error in the admission of the repetitive and
cumulative photographs, or in the admission of the photographs lacking probative
value, was harmless beyond a reasonable doubt considering the overwhelming
evidence of Froman’s guilt. See Thompson, 33 Ohio St. 3d at 9, 514 N.E.2d 407.
{¶ 112} Based on the foregoing, we reject proposition of law No. 10.
I. Prosecutorial misconduct
{¶ 113} In proposition of law No. 5, Froman argues that his judgment of
conviction and death sentence should be reversed due to the prosecutor’s
misconduct during the mitigation phase of the trial.
{¶ 114} When reviewing a claim of prosecutorial misconduct, “[t]he
relevant question is 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
32
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(1974). To answer that question, we consider whether the conduct was improper
and, if so, whether it prejudicially affected the defendant’s substantial rights. State
v. Maxwell, 139 Ohio St. 3d 12, 2014-Ohio-1019, 9 N.E.3d 930, ¶ 243. In
evaluating whether the outcome of Froman’s trial was prejudiced, we consider the
effect that the misconduct had “on the jury in the context of the entire trial.” State
v. Keenan, 66 Ohio St. 3d 402, 410, 613 N.E.2d 203 (1993).
1. “Badgering” the defense psychologist
{¶ 115} Froman argues that the prosecutor committed misconduct by
“badgering” one of his mitigation witnesses, Dr. Nancy Schmidtgoessling, during
the prosecutor’s cross-examination of her.
{¶ 116} Evid.R. 611(B) provides that cross-examination shall be permitted
on all relevant matters and matters affecting credibility. “The limitation of * * *
cross-examination lies within the sound discretion of the trial court, viewed in
relation to the particular facts of the case. Such exercise of discretion will not be
disturbed in the absence of a clear showing of an abuse of discretion.” State v.
Acre, 6 Ohio St. 3d 140, 145, 451 N.E.2d 802 (1983).
{¶ 117} Dr. Schmidtgoessling, a clinical psychologist, testified about IQ
tests and behavioral and psychological tests that she administered to Froman. She
testified that Froman became distressed after his relationship with Thomas had
ended. Froman was also upset because he was unemployed and he believed that
Thomas owed him money. Dr. Schmidtgoessling concluded her testimony by
stating:
[T]his is really a domestic violence case. I understand the person
died horribly. * * * The intertwinement of the relationship with his
mental state is so powerful and unfortunately we see this. This type
of offense is not that uncommon, sadly.
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{¶ 118} First, Froman argues that the prosecutor badgered and embarrassed
Dr. Schmidtgoessling by asking her whether she knew that “two people died
horribly.” (Emphasis added.) Dr. Schmidtgoessling replied in the affirmative.
However, defense counsel failed to object and, therefore, Froman has forfeited all
but plain error on that issue. And here, the prosecutor was merely following up on
Dr. Schmidtgoessling’s testimony regarding her understanding of the number of
people who Froman had killed. We conclude that the prosecutor committed no
plain error in asking this question.
{¶ 119} Froman’s reliance on Slagle v. Bagley, 457 F.3d 501 (6th Cir.2006),
is unpersuasive. In Slagle, the court determined that the prosecutor had made
multiple comments during closing arguments that belittled the defense witnesses
(e.g., referring to the defense expert’s opinions as “liberal quack theories” and
stating that another defense witness “crawled out of a hole”). Id. at 522. But
misconduct of that type did not occur here.
{¶ 120} Second, Froman contends that the prosecutor improperly asked,
“And in fairness, you didn’t have an opportunity to interview Kim Thomas to get
her side of the story, did you?” This question had an obvious answer and served
little purpose other than to embarrass the witness. Nevertheless, the trial court
sustained Froman’s objection to the question, and Froman has not demonstrated
that prejudicial error occurred.
{¶ 121} Finally, Froman argues that the prosecutor improperly asked Dr.
Schmidtgoessling about the Personal Assessment Inventory (“PAI”) and OMNI
testing that she had administered to Froman in 2017. That line of questioning
included the following:
Q: These weren’t performed back at the time that this
situation occurred where he murdered those two people in 2014,
right?
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A: That’s correct.
Q: And are you aware that at the time that you performed
these tests in 2017, Terry Froman had been sitting in jail for over
two years facing the death penalty for the murder of two people. Did
you know that?
A: I did.
The trial court overruled Froman’s objection to this line of questioning.
{¶ 122} The prosecutor’s two questions about the testing merely clarified
that Froman had taken the tests well after the murders occurred, while he was
awaiting trial. The prosecutor committed no misconduct in asking those questions,
because they focused the jury’s attention on the reliability of the test results.
2. Arguing the aggravating circumstances
{¶ 123} Froman argues that the prosecutor committed misconduct by
arguing that the crime itself was an aggravating circumstance. The prosecutor
argued:
The second aggravating circumstance that you’ve already
found is that the aggravated murder of Kimberly Thomas was
completed while he was committing a kidnapping offense. And he
was the principal offender. This aggravating circumstance focuses
on the kidnapping of Kimberly Thomas. It focuses on [Froman]
removing her from her home after she had just witnessed her son
shot execution style in the back of the head.
{¶ 124} The mitigation phase of a capital trial has a specific purpose: the
jury must determine “whether the aggravating circumstances the offender was
found guilty of committing outweigh the mitigating factors” beyond a reasonable
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doubt. R.C. 2929.03(D)(2). “[T]he ‘aggravating circumstances’ against which the
mitigating evidence is to be weighed are limited to the specifications of aggravating
circumstances set forth in R.C. 2929.04(A)(1) through (A)(8) that have been
alleged in the indictment and proved beyond a reasonable doubt.” State v.
Wogenstahl, 75 Ohio St. 3d 344, 662 N.E.2d 311 (1996), paragraph one of the
syllabus. The jury shall consider any evidence relevant to those aggravating
circumstances, including evidence about their nature and circumstances. R.C.
2929.03(D)(1); Wogenstahl at 353.
{¶ 125} The prosecutor may comment on any “testimony or evidence
relevant to the nature and circumstances of the aggravating circumstances specified
in the indictment of which the defendant was found guilty.” State v. Gumm, 73
Ohio St. 3d 413, 653 N.E.2d 253 (1995), syllabus. Here, one of the aggravating
circumstances included in the indictment for which Froman was found guilty was
that he committed aggravated murder while kidnapping Thomas, R.C.
2929.04(A)(7). We conclude that the prosecutor’s argument was focused on the
nature and circumstances of the aggravating circumstance and was proper. See
Mammone, 139 Ohio St. 3d 467, 2014-Ohio-1942, 13 N.E.3d 1051, at ¶ 146.
{¶ 126} In any event, Froman cannot show that he was prejudiced by the
prosecutor’s comment, because the trial court correctly instructed the jury on the
aggravating circumstances and the proper standard for the jury to apply in its
weighing process. See Mammone at ¶ 147. It is presumed that the jury followed
the court’s instructions. State v. Loza, 71 Ohio St. 3d 61, 79, 641 N.E.2d 1082
(1994).
3. Commenting on Froman’s unsworn statement
{¶ 127} Froman argues that the prosecutor committed misconduct during
the mitigation-phase closing arguments by referring to Froman’s unsworn
statement as “self-serving.”
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{¶ 128} When a defendant chooses to make an unsworn statement during
the mitigation phase of a capital trial, the prosecutor “may comment that the
defendant’s statement has not been made under oath or affirmation, but such
comment must be limited to reminding the jury that the defendant’s statement was
not made under oath in contrast to the testimony of all other witnesses.” State v.
DePew, 38 Ohio St. 3d 275, 528 N.E.2d 542 (1988), paragraph two of the syllabus.
However, misconduct occurs when a prosecutor “refer[s] not only to credibility but
also to [the defendant’s] silence on particular issues.” State v. Lorraine, 66 Ohio
St.3d 414, 419, 613 N.E.2d 212 (1993).
{¶ 129} Here, the prosecutor’s brief comment on Froman’s unsworn
statement was directed at the statement’s credibility. See State v. Bedford, 39 Ohio
St.3d 122, 125, 529 N.E.2d 913 (1988). Moreover, the trial court sustained
Froman’s objection to the prosecutor’s comment and instructed the jury to disregard
it. Again, the jury is presumed to have followed the court’s instructions. State v.
Goff, 82 Ohio St. 3d 123, 135, 694 N.E.2d 916 (1998). In any event, Froman has
not shown that he was prejudiced by this statement.
4. Referring to Froman as “Tricke”
{¶ 130} Froman argues that the prosecutor disparaged him by referring to
him during the trial by his nickname, “Tricke.” The prosecutor referred to Froman
by the name “Tricke” during witness testimony and throughout opening statements
and closing arguments. However, defense counsel never made a contemporaneous
objection, so Froman has thus forfeited all but plain error. See State v. Gillard, 40
Ohio St. 3d 226, 230, 533 N.E.2d 272 (1988).
{¶ 131} It is improper for a prosecutor to use a defendant’s nickname for
the purpose of impugning the character of the defendant. Id. at 230. Froman argues
that the prosecutor called him “Tricke” to signal to the jury that he was a “trickster”
or a dishonest person. However, “Tricke” was Froman’s nickname. The license
plate on Froman’s vehicle included the license-plate number “TRICKE1,” and a
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decal on the side of that same vehicle said the word “Tricke.” Terry Thomas
(Kimberly Thomas’s father and Eli’s grandfather), Munsell and Melissa Clark
(Thomas’s co-workers), and Clark (Froman’s friend) all testified that “Tricke” was
Froman’s nickname. Munsell testified that she knew Froman only by the name
“Tricke.” Also, Thomas had a tattoo on her wrist that said the word “Tricke.”
{¶ 132} Nevertheless, the prosecutor’s use of Froman’s nickname was
unnecessary and might have been an attempt to impugn his character. See State v.
Lang, 129 Ohio St. 3d 512, 2011-Ohio-4215, 954 N.E.2d 596, ¶ 261-262. Again,
however, the evidence admitted against Froman was overwhelming. Based on that
evidence, we cannot conclude that the prosecutor’s referring to Froman by his
nickname prejudiced the outcome of the trial. Thus, we conclude that no plain error
occurred.
{¶ 133} Based on the foregoing, we reject proposition of law No. 5.
J. Ineffective assistance of counsel
{¶ 134} In proposition of law No. 4, Froman argues that his trial counsel
rendered ineffective assistance during both the guilt and the mitigation phases of
the trial. In order for this court to reverse Froman’s judgment of conviction and
sentence, Froman must establish both that his counsel were deficient and that the
deficient performance prejudiced his defense so as to deprive him of a fair trial.
See Strickland, 466 U.S. at 687, 104 S. Ct. 2052, 80 L. Ed. 2d 674.2
1. Defense counsel not licensed in Kentucky
{¶ 135} Froman argues that his counsel were ineffective because they were
not licensed to practice law in Kentucky. He contends that because his counsel did
not have licenses to practice law in Kentucky, which is where Eli’s death occurred,
they could not properly defend him with respect to the circumstances involving
Eli’s death. Although Froman was not charged with Eli’s murder in Ohio, that
2. Froman’s argument in proposition of law No. 4 that his counsel were ineffective for failing to
question juror No. 49 about her racial bias is addressed above in Section III.C.1.
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murder was relevant to the course-of-conduct specification attached to Counts 1
and 2 of the indictment.
{¶ 136} During a hearing on Froman’s motion to dismiss the course-of-
conduct specifications, Froman’s defense counsel argued the following:
One of the things we’re concerned about, to say the least, is
I’m not licensed or practicing in Kentucky and counsel have to argue
a case within a case. * * * I think we get in all kinds of quagmire at
this point for the reason that Kentucky law is different from Ohio
law. It has to be a purposeful killing in Ohio and you can’t apply
that to factual situations that occurred in a state outside of our
jurisdiction.
The trial court denied Froman’s motion to dismiss the course-of-conduct
specifications.
{¶ 137} As discussed in our analysis of proposition of law No. 1, Ohio
properly exercised jurisdiction over the course-of-conduct specifications relating to
Eli’s murder. And Ohio law, not Kentucky law, applied to those course-of-conduct
specifications. Froman argues that his defense counsel were not familiar with the
culpable mental state regarding Eli’s murder under Kentucky law and yet had to
defend “a case within a case” from Kentucky. But defense counsel did not need a
Kentucky law license to defend Froman on the specifications relating to the murder
of Eli, because the culpability necessary to find Froman guilty of the specifications
was controlled by Ohio law. Accordingly, we conclude that defense counsel did
not render deficient performance.
2. Conceding guilt
{¶ 138} Froman argues that his defense counsel were ineffective because
they conceded his guilt during opening statements.
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{¶ 139} Counsel’s conceding guilt in a capital case does not necessarily
constitute deficient performance. State v. Johnson, 112 Ohio St. 3d 210, 2006-
Ohio-6404, 858 N.E.2d 1144, ¶ 134, citing Florida v. Nixon, 534 U.S. 175, 190-
191, 125 S. Ct. 551, 160 L. Ed. 2d 565 (2004). “Attorneys representing capital
defendants face daunting challenges in developing trial strategies, not least because
the defendant’s guilt is often clear. * * * In such cases, ‘avoiding execution [may
be] the best and only realistic result possible.’ ” (Brackets sic.) Nixon at 191,
quoting American Bar Association, Guidelines for the Appointment and
Performance of Defense Counsel in Death Penalty Cases, Section 10.9.1,
Commentary (Rev.Ed.2003), reprinted in 31 Hofstra L.Rev. 913, 1040 (2003).
{¶ 140} During opening statements, Froman’s defense counsel told the jury
the following:
As you’re well aware of over the last several days, we are not
obviously contesting that [Froman] caused the death of Ms. Thomas.
He acknowledged that, he will acknowledge that, and that’s what
the evidence will show in this matter. The evidence is going to show
that he is extremely remorseful. That there’s other issues involved
that hopefully will come out at trial, not a justification, but a
mitigation.
***
The evidence is going to clearly show that Mr. Froman is
totally responsible for the death, not a justification, but I told you
before, the evidence is going to show mitigating factors in this
matter.
{¶ 141} Again, Froman’s guilt was clear. His counsel knew that evidence
would be introduced at trial to establish that Froman had kidnapped Thomas and
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had killed Eli at Thomas’s home. Video footage showed Froman abducting
Thomas at the gas station, Froman admitted to Clark that he had killed Eli and
intended to kill Thomas, state troopers heard Froman fire the gunshots that killed
Thomas, and forensic evidence linked the found shell casings to Froman’s gun.
Given the overwhelming evidence of Froman’s guilt, it was rational for Froman’s
defense counsel to concede that Froman had committed the charged offenses and
to focus on mitigation.
{¶ 142} Defense counsel’s strategic decision to concede Froman’s guilt
maintained the defense’s credibility and allowed defense counsel to focus the jury’s
attention on Froman’s mitigating evidence supporting a life sentence. See State v.
Elmore, 111 Ohio St. 3d 515, 2006-Ohio-6207, 857 N.E.2d 547, ¶ 60. The
concession reinforced Froman’s mitigation-phase strategy emphasizing his remorse
and acceptance of responsibility. Furthermore, Froman has not asserted that he
objected to his counsel’s decision to concede his guilt before opening statements
were presented, which would be a prerequisite supporting his argument that
reversible error occurred. See McCoy v. Louisiana, __ U.S. __, 138 S. Ct. 1500,
1511, 200 L. Ed. 2d 821 (2018) (counsel’s concession of client’s guilt over client’s
express objection constitutes structural error).
{¶ 143} Froman argues that his defense counsel should have raised
alternative defense theories during the guilt phase of the trial, such as Froman’s
insanity or that he had acted under duress. An insanity defense would have required
proof that Froman “did not know, as a result of a severe mental disease or defect,
the wrongfulness, of [his] acts.” R.C. 2901.01(A)(14). Nothing in the record
indicates that an insanity defense could have been persuasively presented. In fact,
Dr. Schmidtgoessling testified during the mitigation phase that “[t]here was never
evidence from what I saw or the way that he talked to suggest that [Froman] had
any major mental disorder like schizophrenia or bipolar disorder.”
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{¶ 144} Froman has also failed to show that defense counsel had a basis to
raise the defense of duress. “One of the essential features of * * * a duress defense
is the sense of present, imminent, immediate and impending death, or serious bodily
injury.” State v. Cross, 58 Ohio St. 2d 482, 487, 391 N.E.2d 319 (1979). There is
no evidence in the record showing that Froman faced the threat of death or serious
bodily injury when he committed the offenses.
{¶ 145} In conclusion, Froman has failed to show that his counsel were
deficient by conceding his guilt during opening statements. Moreover, considering
the overwhelming evidence of Froman’s guilt, he has failed to show that the
outcome of his trial would have been different if his counsel had pursued another
defense strategy. See State v. Goodwin, 84 Ohio St. 3d 331, 338, 703 N.E.2d 1251
(1999).
3. Failure to call mitigation witnesses
{¶ 146} Froman argues that his defense counsel were ineffective by failing
to call as a mitigation witness an expert in domestic violence, and Froman’s former
supervisors, employers, or coworkers.
{¶ 147} Defense counsel’s decision to call or not call a mitigation witness
is a matter of trial strategy. Elmore, 111 Ohio St. 3d 515, 2006-Ohio-6207, 857
N.E.2d 547, at ¶ 116. “ ‘Attorneys need not pursue every conceivable avenue; they
are entitled to be selective.’ ” State v. Murphy, 91 Ohio St. 3d 516, 542, 747 N.E.2d
765 (2001), quoting United States v. Davenport, 986 F.2d 1047, 1049 (7th
Cir.1993).
{¶ 148} Froman argues that his defense counsel should have called as a
witness a domestic-violence expert to follow up on Dr. Schmidtgoessling’s
conclusion that “this is really a domestic violence case.” Froman contends that an
expert witness was needed to explain “how [he] reacted and why he did.”
{¶ 149} We have never held that defense counsel’s failure to present expert-
witness testimony during the mitigation phase is per se deficient performance. See
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January Term, 2020
State v. McKelton, 148 Ohio St. 3d 261, 2016-Ohio-5735, 70 N.E.3d 508, ¶ 307.
Moreover, a defendant cannot establish ineffective assistance of counsel based on
counsel’s failure to call an expert witness if counsel used “alternative devices” to
“fulfill the same functions as the expert assistance sought.” State v. Belton, 149
Ohio St. 3d 165, 2016-Ohio-1581, 74 N.E.3d 319, ¶ 145; see also State v. Jenkins,
15 Ohio St. 3d 164, 473 N.E.2d 264 (1984), paragraph four of the syllabus.
{¶ 150} The state argues that a domestic-violence expert witness was
unnecessary because the purpose of Dr. Schmidtgoessling’s testimony was to
explain how Froman acted and why he acted that way. We agree. Dr.
Schmidtgoessling testified that Froman’s sense of loss after breaking up with
Thomas and the anger and humiliation that he had experienced after finding out
that she had communicated with other men affected his mental state prior to the
murders. Accordingly, Froman has failed to show that his counsel were deficient
by failing to call a domestic-violence expert witness, because the hypothetical
witness’s testimony would have covered the same topics that Dr. Schmidtgoessling
had covered.
{¶ 151} In any event, Froman has also not shown that he was prejudiced by
counsel’s allegedly deficient performance. He does not identify any specific
evidence that a domestic-violence expert witness might have presented to assist him
or explain why such evidence would have prompted the jury to recommend a life
sentence. Thus, this ineffective-assistance claim lacks merit.
{¶ 152} Froman also argues that his counsel were ineffective by failing to
call as witnesses Froman’s former employers, supervisors, or coworkers to testify
about his “mental limitations, if they knew,” and his good work habits. But Dr.
Schmidttgoessling testified about both of those topics. And Froman’s daughter,
Alexis, also testified that her father had been a hard worker and a good provider.
Froman does not specify what information his former employers, supervisors, or
coworkers might have added if they had testified.
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{¶ 153} We conclude that defense counsel’s decision not to call Froman’s
former employers, supervisors, or coworkers as additional mitigation witnesses was
a “tactical choice,” see State v. Hand, 107 Ohio St. 3d 378, 2006-Ohio-18, 840
N.E.2d 151, ¶ 241, and did not amount to ineffective assistance of counsel.
{¶ 154} Based on the foregoing, we reject proposition of law No. 4.
K. Cumulative error
{¶ 155} In proposition of law No. 12, Froman argues that cumulative errors
during both phases of the trial deprived him of a fair trial and a reliable sentencing
hearing.
{¶ 156} 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.” State v. Powell, 132 Ohio St. 3d 233,
2012-Ohio-2577, 971 N.E.2d 865, ¶ 223. But this claim lacks merit because
Froman has not shown that he was prejudiced by any error during his trial. And
even if the errors that occurred during Froman’s trial are cumulated, the combined
effect of those nonprejudicial errors did not deprive Froman of a fair trial.
{¶ 157} Based on the foregoing, we reject proposition of law No. 12.
L. Constitutionality of capital sentencing
{¶ 158} In proposition of law No. 13, Froman argues that Ohio’s capital-
sentencing procedures violated his Sixth Amendment right to a jury trial as
construed in Hurst v. Florida, ___ U.S. ___, 136 S. Ct. 616, 193 L. Ed. 2d 504 (2016).
We reject this argument on the authority of our decision in State v. Mason, 153
Ohio St. 3d 476, 2018-Ohio-1462, 108 N.E.3d 56, ¶ 43, in which we rejected the
same argument.
{¶ 159} In proposition of law No. 14, Froman challenges the
constitutionality of Ohio’s death-penalty statutes and claims that they violate
international law and treaties to which the United States is a party. We have
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previously rejected these same arguments, and we do so again here. See, e.g.,
Thompson, 141 Ohio St. 3d 254, 2014-Ohio-4751, 23 N.E.3d 1096, at ¶ 279-280.
M. Appropriateness of the death sentence
{¶ 160} In proposition of law No. 11, Froman argues that the death sentence
is not an appropriate sentence for him because of his personal history, his
background, his below-average IQ, his mental state at the time of the offenses, the
love and support for him shown by his daughter, and his acceptance of
responsibility and remorse for causing the deaths of Thomas and Eli. We shall
consider these arguments below in our independent evaluation of Froman’s death
sentence.
IV. INDEPENDENT SENTENCE EVALUATION
{¶ 161} Having considered Froman’s propositions of law, we must now
independently review Froman’s death sentence for appropriateness and
proportionality as required by R.C. 2929.05(A).
{¶ 162} Before the start of the mitigation phase, the findings of guilt for
Froman’s two aggravated-murder counts were merged. The state elected to proceed
with sentencing on Count One 1 (aggravated murder with prior calculation and
design).
A. Aggravating circumstances
{¶ 163} Froman was convicted of two death-penalty specifications on
Count 1: (1) committing aggravated murder as part of a course of conduct involving
the purposeful killing of two or more persons (Thomas and Eli), R.C.
2929.04(A)(5), and (2) committing aggravated murder while committing a
kidnapping, R.C. 2929.04(A)(7). The evidence presented at trial and described
herein supports the jury’s findings as to both of these aggravating circumstances.
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B. Mitigating evidence presented
{¶ 164} We must weigh the mitigating factors contained in R.C. 2929.04(B)
against the aggravating circumstances. Froman called two mitigation witnesses and
made an unsworn statement during the mitigation phase.
1. Alexis Froman’s testimony
{¶ 165} Alexis Froman, the defendant’s 16-year-old daughter, testified that
she had a good relationship with her father while growing up. He had always been
in her life, and they had a normal father-daughter relationship. Alexis had visited
her father in the Warren County jail and they exchanged letters. Since Froman had
been confined, Alexis experienced several mental disorders, including major
depressive disorder and posttraumatic-stress disorder. She had been hospitalized
twice for those conditions. Froman had helped her to cope with her depression by
telling her that “he loves [her] and to stay strong.”
{¶ 166} In discussing Froman’s life, Alexis stated that her father had always
worked and provided for his family. However, he lost his job shortly before the
murders in this case occurred in September 2014. Alexis testified that after Froman
had lost his job, his behavior changed and he became “more distant.” Froman had
experienced financial problems and he slept in his vehicle and took showers at his
cousin’s and aunt’s homes.
{¶ 167} Alexis testified that her father had expressed remorse for the
murders “numerous times.” She emphasized that Froman is a good father and that
she would remain in his life if he were to receive a life sentence. Alexis asked the
jury not to sentence her father to death because she still needs him for his motivation
and encouragement.
2. Unsworn statement
{¶ 168} In an unsworn statement, Froman told the court that he accepted
total responsibility for what had happened. Froman also discussed his life and
explained the events leading up to the murders, stating:
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January Term, 2020
Kim Thomas and I were together for almost four years. I loved her.
* * * When we first got together she treated me good. I thought she
loved me. Later she changed how I was treated. She was not nice
to me. She ordered me around. When she needed money I gave her
$8,900 and $100. She wouldn’t give any of it back, even when I had
no work. I was very depressed and went back and forth with trying
to be happy and I wanted to kill myself.
I was sick from sugar diabetes and hypertension. I had
severe headaches. * * * She made me sleep on the couch. And she
would make me walk behind her when we were in public. I saw her
phone and I saw that she had sent naked pictures of herself to
different men and women. I knew she was having sex with other
men.
{¶ 169} Froman emphasized his wrongdoing and expressed his remorse,
stating, “Every day—I have been in jail since September 2014, I have prayed and
regretted what I did. No matter what was going on in my life, what I did was
horrible.” He also stated, “I will never forget the damage I have caused [to] so
many people. No one can justify what I did. I am truly sorry.” Regarding the day
of the murders, Froman said, “When I went to her house, I just wanted to be with
her. I loved Eli, he was a good person. * * * The rest of the day different thoughts
have jumped into my head. I was upset, angry, and didn’t know what to do.”
{¶ 170} Froman said that Thomas had given him a birthday card on July 9,
2014. He said that she wrote, “Things can’t always be perfect, but even on a bad
day I know that I love you with all my heart. I know I have caused you pain and
mistrust, but I pray every day that you will forgive me and know that my love for
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you is real, and I intend to make you happy for the rest of our lives together.”
Froman stated that he thought “she was changing, but things did not change.”
{¶ 171} In conclusion, Froman told the jury the following:
I have tried to plead guilty to life imprisonment and to die in
prison. The prosecutor told my attorney that they would not agree
to that. * * * I do not want to die because my mother and daughter
want me to live. My mother is not well, she * * * wants me to
continue to be a part of her life. And she told me she would write
me and visit me when she could.
***
My daughter has had mental health problems. She wants me
to be alive and continue to be in her life. * * * I am the only one
that caused me to be in this situation, but I am worried about my
daughter. I want to live. And very sorry for what I have done.
Thank you. May God forgive me.
3. Psychologist’s testimony
{¶ 172} Dr. Schmidtgoessling testified that Froman had been born and
raised in Paducah, Kentucky. He was raised by his mother along with his four
sisters and one brother. Froman felt that his mother had been overly strict and said
that she had hit him and called him names. His father “really wasn’t that available.”
Froman completed high school, but he was “[n]ot the best student.”
{¶ 173} Dr. Schmidtgoessling testified that Froman had taken the Wechsler
Adult Intelligence Scale test and that his full-scale IQ was 86, which is in the low-
average range. Froman’s Perceptual Reasoning Index score was 104, which is in
the average range. His Working Memory Index score was 100, which is in the
average range, and his Processing Speed Index score was 81, which is in the low-
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average range. Dr. Schmidtgoessling testified that Froman was “certainly capable
of managing his life.”
{¶ 174} Dr. Schmidtgoessling also administered to Froman the PAI test,
which surveys a wide variety of psychological disorders and symptoms, and the
OMNI test, which measures personality traits. Dr. Schmidtgoessling testified that
Froman’s PAI results suggested that he has symptoms of depression, particularly
in how he looks at the world, and that his OMNI test results showed that Froman
tends to be an unhappy, pessimistic person who “sees the cloud rather than the silver
lining.”
{¶ 175} Dr. Schmidtgoessling diagnosed Froman with major depression.
But she testified that he “did not appear to have a severe mental health disorder like
schizophrenia or schizoaffective disorder or bipolar disorder.” She stated that
Froman “come[s] across as dejected and kind of morose.” But Froman did not
show signs of having bizarre thoughts, and his thoughts were always organized and
realistic.
{¶ 176} Dr. Schmidtgoessling testified that Froman had reported to her that
he had many jobs in the past. He had worked for around ten years in the restaurant
industry and had assisted with opening stores in Kentucky and Tennessee.
According to Dr. Schmidtgoessling, Froman had “had positions of responsibility
that required decision making and some amount of judgment about people,
potential employees. So in many respects he functioned better than you might have
expected for a person of an IQ of 86.”
{¶ 177} Froman reported to Dr. Schmidtgoessling that he and Thomas had
been together for approximately four years. He described their relationship as
“very, very special” to him, and he “loved her more than anything.” They had even
talked about marriage and of having a child together.
{¶ 178} Froman told Dr. Schmidtgoessling that as time had gone on, he
began to believe that Thomas was seeing other people. He said that he had looked
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at her phone and found evidence that she was communicating with other people
about sexual matters. He said that finding those communications had been a huge
turning point in their relationship and that their relationship deteriorated from that
point forward. Froman said that Thomas had wanted him to sleep on the couch and
that she did not want to be intimate with him any longer. Froman also said that he
had loaned Thomas about $9,000 and that she could not repay it or account for how
it had been spent.
{¶ 179} Dr. Schmidtgoessling testified regarding the trust issues and stress
Froman had experienced before the murders, stating, “One was the loss of their
relationship because he felt this woman was really special. The second one is that
he is a worker, that’s real important to his identity. He had not been working I think
for a month or so * * * prior to this offense.” She concluded by testifying that
“when you evaluate people with domestic violence, this is really a domestic
violence case. I understand the person died horribly. * * * The intertwinement of
the relationship with his mental state is so powerful and unfortunately we see this.
This type of offense is not that uncommon, sadly.”
C. Independent weighing and proportionality
{¶ 180} Nothing in the nature and circumstances of the offenses is
mitigating. Froman, then 41 years old, murdered Eli and then kidnapped Thomas.
Froman then fled to Ohio and murdered Thomas after being stopped by the OSHP.
{¶ 181} The statutory mitigating factors under R.C. 2929.04(B) include
R.C. 2929.04(B)(1) (victim inducement), (B)(2) (duress, coercion, or strong
provocation), (B)(3) (mental disease or defect), (B)(4) (youth of the offender),
(B)(5) (lack of a significant criminal record), (B)(6) (accomplice only), and (B)(7)
(any other relevant factors). Having reviewed the evidence and considered these
statutory factors, we find that none of the statutory factors apply except the catch-
all provision of R.C. 2929.04(B)(7).
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{¶ 182} Froman urges this court to give weight to the fact that he “was
moody, lethargic, and suffered from depression” at the time of the offenses. Dr.
Schmidtgoessling testified that Froman did not have any severe mental-health
disorders, although he did have major depression. However, there is no evidence
in the record indicating that Froman’s depression rose to the level of the type of
mitigating “mental disease or defect” referred to in R.C. 2929.04(B)(3) (“Whether,
at the time of committing the offense, the offender, because of a mental disease or
defect, lacked substantial capacity to appreciate the criminality of [his] conduct or
to conform [his] conduct to the requirements of the law”). Evidence of his
depression is, however, relevant under R.C. 2929.04(B)(7), which allows this court
to consider as mitigating “[a]ny other factors that are relevant to the issue of
whether the offender should be sentenced to death.” See also State v. Treesh, 90
Ohio St. 3d 460, 492, 739 N.E.2d 749 (2001) (considering evidence of a mental
disorder when the disorder did not satisfy the criteria of R.C. 2929.04(B)(3)).
Accordingly, we give some weight to the evidence of Froman’s depression.
{¶ 183} We also give some weight to Froman’s low-average IQ of 86 as a
factor under R.C. 2929.04(B)(7). See State v. Drummond, 111 Ohio St. 3d 14, 2006-
Ohio-5084, 854 N.E.2d 1038, ¶ 264 (IQ of 82 entitled to weight in mitigation);
State v. Craig, 110 Ohio St. 3d 306, 2006-Ohio-4571, 853 N.E.2d 621, ¶ 146 (IQ of
83 given considerable weight). However, there was no evidence presented
establishing a significant connection between Froman’s low IQ and the murders he
committed. See Drummond at ¶ 264.
{¶ 184} Froman’s expressions of remorse and his acceptance of
responsibility for his offenses are entitled to some weight under R.C.
2929.04(B)(7). See Montgomery, 148 Ohio St. 3d 347, 2016-Ohio-5487, 71 N.E.3d
180, at ¶ 185. We also give weight to Alexis’s testimony that Froman loves and
supports her and to the evidence showing that Froman had been consistently
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employed and was a hard worker. See State v. Trimble, 122 Ohio St. 3d 297, 2009-
Ohio-2961, 911 N.E.2d 242, ¶ 327.
{¶ 185} However, the two death-penalty specifications that apply here—the
course-of-conduct specification and the kidnapping specification—overwhelm the
mitigating factors in this case. Thus, we conclude that the aggravating
circumstances clearly outweigh the mitigating factors beyond a reasonable doubt.
{¶ 186} As a final matter, we conclude that the death sentence imposed in
this case is appropriate and proportionate to death sentences that we have upheld in
similar cases. We have previously upheld death sentences involving a course-of-
conduct specification under R.C. 2929.04(A)(5). See, e.g., State v. Gapen, 104
Ohio St. 3d 358, 2004-Ohio-6548, 819 N.E.2d 1047, ¶ 182; Trimble at ¶ 329. We
have also upheld death sentences as punishment for aggravated murder committed
during the course of a kidnapping under R.C. 2929.04(A)(7). See, e.g., State v.
Martin, 151 Ohio St. 3d 470, 2017-Ohio-7556, 90 N.E.3d 857, ¶ 169; State v.
McKnight, 107 Ohio St. 3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 334; Trimble
at ¶ 331.
V. CONCLUSION
{¶ 187} For the foregoing reasons, we affirm Froman’s judgment of
conviction and death sentence.
Judgment affirmed.
KENNEDY, FRENCH, FISCHER, DEWINE, DONNELLY, and STEWART, JJ.,
concur.
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David P. Fornshell, Warren County Prosecuting Attorney, and Kirsten A.
Brandt, Assistant Prosecuting Attorney, for appellee.
Timothy J. McKenna and Roger W. Kirk, for appellant.
Jeffrey M. Gamso and Noelle A. Powell, urging reversal for amicus curiae,
Ohio Association of Criminal Defense Lawyers.
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