70 N.E.3d 508 (Ohio 2016), 2010-2198, State v. McKelton

Docket Nº2010-2198
Citation70 N.E.3d 508, 148 Ohio St.3d 261, 2016-Ohio-5735
Opinion JudgeLanzinger , J.
Party NameTHE STATE OF OHIO, APPELLEE, v. MCKELTON, APPELLANT
AttorneyMichael Gmoser, Butler County Prosecuting Attorney, and Michael A. Oster Jr. and Lina N. Alkamhawi, Assistant Prosecuting Attorneys, for appellee. Timothy Young, Ohio Public Defender, and Rachel Troutman, Allen Vender, and Shawn Welch, Assistant Public Defenders, for appellant.
Judge PanelLANZINGER, J. O'CONNOR, C.J., and O'DONNELL, KENNEDY, and FRENCH, JJ., concur. PFEIFER, J., concurs in part and dissents in part, with an opinion. O'NEILL, J., concurs in part and dissents in part, with an opinion. O'Connor, C.J., and O'Donnell, Kennedy, and French, JJ., concur. Pfeifer, J., conc...
Case DateSeptember 13, 2016
CourtSupreme Court of Ohio

Page 508

70 N.E.3d 508 (Ohio 2016)

148 Ohio St.3d 261, 2016-Ohio-5735

THE STATE OF OHIO, APPELLEE,

v.

MCKELTON, APPELLANT

No. 2010-2198

Supreme Court of Ohio

September 13, 2016

Submitted: January 13, 2015

APPEAL from the Court of Common Pleas of Butler County, No. CR2010-02-0189.

Judgment affirmed.

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Michael Gmoser, Butler County Prosecuting Attorney, and Michael A. Oster Jr. and Lina N. Alkamhawi, Assistant Prosecuting Attorneys, for appellee.

Timothy Young, Ohio Public Defender, and Rachel Troutman, Allen Vender, and Shawn Welch, Assistant Public Defenders, for appellant.

LANZINGER, J. O'CONNOR, C.J., and O'DONNELL, KENNEDY, and FRENCH, JJ., concur. PFEIFER, J., concurs in part and dissents in part, with an opinion. O'NEILL, J., concurs in part and dissents in part, with an opinion.

OPINION

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Lanzinger , J.

[¶1] Calvin McKelton appeals his convictions of the February 2009 aggravated murder of Germaine (" Mick" ) Evans and the July 2008 murder of Margaret (" Missy" ) Allen. For the reasons that follow, we reject each proposition of law and affirm the convictions and death sentence.

I. FACTUAL AND PROCEDURAL BACKGROUND

A. Pretrial Background

[¶2] In February 2010, the state charged McKelton with the murder of Allen, R.C. 2903.02(B), and the aggravated murder of Evans, R.C. 2903.01(A). The aggravated-murder charge carried a firearm specification, R.C. 2941.145, and two [148 Ohio St.3d 262] death specifications, R.C. 2929.04(A)(3) (escaping detection) and (A)(8) (killing to prevent testimony in a criminal proceeding).

[¶3] McKelton was also charged with two counts of felonious assault, R.C. 2903.11(A)(1), and two counts of domestic violence against Allen, R.C. 2919.25(A); gross abuse of her corpse, R.C. 2927.01(B); aggravated robbery and aggravated arson, R.C. 2911.01(A)(3) and 2909.02(A)(2); tampering with evidence, R.C. 2921.12(A)(1); and intimidating a witness in a criminal case, R.C. 2921.04(B). The state, with leave of court, dismissed the aggravated-robbery charge before trial.

[¶4] A jury trial began in October 2010.

B. The State's Case-in-Chief

1. Domestic Abuse of Missy Allen

[¶5] Missy Allen, a criminal-defense attorney who had represented Calvin McKelton, began dating him in 2006 or 2007. By 2008, McKelton was living with Allen and her nieces, T.W. and Z.D., at Allen's home in Butler County.

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[¶6] T.W., then a teenager, testified that she had witnessed physically violent arguments between McKelton and Allen while they were living together. One time she found McKelton on top of Allen, choking her. During another altercation, Allen asked T.W. to call the police, but McKelton took the phone from T.W. and threw it on a counter. T.W. said that after things " start[ed] to get bad," Allen told her not to say anything about what happened in her house.

[¶7] A document on Allen's home computer, created on September 13, 2007, chronicled abuse. The first-person narrative described an incident during which McKelton hit, kicked, and pushed Allen and then choked her twice, once with such force that she nearly lost consciousness. She listed injuries to her face, right side, right leg, back, and head as well as blood clots in her eyes due to " the loss of air." She was afraid because McKelton had threatened her and her niece. She indicated that she intended to prosecute and to request a temporary protection order and a high bond.

[¶8] A notebook found in Allen's home office contained handwritten notes that repeatedly mentioned the name " Calvin." Charia Mam, a friend of Allen's, testified that the handwriting was Allen's. Allen described McKelton's grabbing her by the neck, hitting her lip, threatening to burn her eye with a cigarette, and pushing her down " b/c tried to choke." Allen also described calling for her niece to call 9-1-1. An undated apology note to Allen, written in McKelton's handwriting, stated: " I Love u baby, I don't ever want to hurt u again. * * * I want 2 say sorry 2 you and 2 God for what Ive done."

[148 Ohio St.3d 263] [¶9] Z.D., then 11 years old, testified that on May 4, 2008, she heard McKelton yelling and Allen screaming from the direction of the garage. She called 9-1-1. Officer Kelly Smith was dispatched to Allen's home, but McKelton and Allen were gone when she arrived. The officer said that Z.D. was visibly shaking and acting with " extreme fear." McKelton returned while Smith was still at the house. He " burst through the door" yelling Z.D.'s name and told Smith " to bounce [her] ass out of the house." Allen then called the house and told the officer that she was in the hospital. Z.D. testified that Allen later told her she was " kind of mad" that Z.D. had called 9-1-1 and had not come into the garage.

[¶10] Allen gave several accounts of her argument with McKelton. She told police that McKelton had not harmed her and " if anything, she essentially provoked him" by shoving him. She said that she tripped over something in the garage. She told hospital personnel that she had fallen over a lawn mower or bike, told a children's services representative that she had fallen over a chair, and told her physical therapist that she had fallen down a step.

[¶11] Allen's injury required surgery to place four screws in her ankle as well as physical therapy. According to two friends, Shaunda Luther and Mam, Allen became " increasingly depressed," " somewhat detached," and " distant" after the injury. McKelton was always around, and it was hard for Mam and Luther to have meaningful conversations with Allen. Because she could not drive, she depended on McKelton to take her to medical appointments and to court. And Luther said that Allen was depressed because she could not make money to support herself. Her bank account was overdrawn as of July 25, 2008.

[¶12] Mam and Luther both testified that Allen had expressed concern about McKelton's jealousy. Allen told Mam that McKelton " went through her phone and text record frequently, and it always ended

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in an argument." She also told Mam that McKelton would kill her if he knew another man had sent her flowers or if he thought she had slept with his friend.

[¶13] In July 2008, Allen told Mam that she thought she was pregnant. She told her friend that she feared having a baby would tie her to McKelton forever but that McKelton would kill her if she had an abortion without telling him. Allen suffered a miscarriage later that month.

2. The Murder of Missy Allen

[¶14] On July 27, 2008, a woman was found dead in woods on the east side of Cincinnati. A piece of plastic resembling a shower-curtain liner was wrapped around the victim's thighs, and a bag of counterfeit drugs lay near her body.

[¶15] Jan Gorniak, D.O., then a deputy coroner for Hamilton County, performed an autopsy on July 28, 2008. She classified the death as a homicide [148 Ohio St.3d 264] caused by strangulation. Gorniak could not determine a precise time of death, but she estimated that the body had been in the woods for one and one-half to three days. After the autopsy, police identified the woman as Allen.

a. Physical evidence

[¶16] Police then searched Allen's home. The front door was locked and the security system was activated, but inside they found a burn mark in the master bedroom and several items that later tested positive for gasoline or gasoline components. Officers collected samples of drywall that appeared to have blood on them; the samples were later confirmed to have a DNA profile consistent with Allen's DNA profile. Two items--a cigarette butt and the door to the garage, which had a smear that appeared to be blood--had a DNA profile consistent with McKelton's DNA profile.

[¶17] Valuable items--including Allen's purse--were in plain view, apparently undisturbed. Police found a long piece of weed-eater cord on the kitchen floor. There was a shower curtain on the hallway floor but no sign of a shower-curtain liner.

[¶18] Allen's car was found in the village of Golf Manor shortly after midnight on July 29, 2008. It was locked and did not appear to have been tampered with. Cell-phone records indicated that the last outgoing call on Allen's phone was at 8:27 p.m. on July 25, 2008, to a phone number used by McKelton. Her laptop computer was last used around 4 p.m. that day.

b. Investigation of McKelton

[¶19] On July 29, McKelton came to the Fairfield Police Department. After he signed a Miranda waiver, he asked if there were any warrants for him. There were not. McKelton did not answer any other questions. Officers noted small abrasions (possibly burn marks) on McKelton's hands. They photographed him and took fingerprints, DNA samples, and fingernail scrapings. The DNA samples were not consistent with male DNA collected from Allen's fingernails.

[¶20] Based on cell-phone records, police believed that McKelton...

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