Conviction Affirmed In Shooting Death of 14-year-old

Case Number: C-160272

Judge: Beth A. Myers

Court: IN THE COURT OF APPEALS FIRST APPELLATE DISTRICT OF OHIO

Plaintiff's Attorney:

Joseph T. Deters, Hamilton County Prosecuting Attorney, and Paula E. Adams, Assistant Prosecuting Attorney

Defendant's Attorney:

Raymond T. Faller, Hamilton County Public Defender, and Joshua A. Thompson and Demetra Stamatakos, Assistant Public Defenders

Description: Defendant-appellant Trashon McCray appeals the judgment of the
Hamilton County Common Pleas Court convicting him, after a jury trial, of murder,
felonious assault, and two counts of having a weapon while under a disability.
Finding no merit to his assignments of error, we affirm the trial court’s judgment.
{¶2} On March 21, 2014, at the end of the school day, students walked from
Dohn Community School on Essex Place to the bus stops on William Howard Taft
Road. A large crowd gathered to watch a fight that had broken out at the intersection
of Essex and Taft. McCray’s younger brother, D.M., and other Dohn students were
involved in the fight. Fourteen-year-old J.M. and 17-year-old D.L. were standing in
the crowd when 19-year-old McCray, a Dohn student at the time, drove up and fired
a gun at them. J.M. died as a result of his gunshot wounds. D.L. was shot multiple
times in the legs, sustaining serious permanent injuries. Video cameras on a nearby
city bus recorded the shooting.
{¶3} The vehicle that McCray was driving belonged to a family friend,
Lakeisha Hicks. Hicks’s teenaged son D.W. was the front-seat passenger. After the
shooting, McCray drove around the block to McMillan Street and picked up Hicks’s
other son, 20-year-old Miniko, who got in the back seat. McCray drove back around
the block to drop Miniko off near Essex and Taft, where J.M. and D.L. were still lying
on the ground.
{¶4} Before Miniko got out of the car, he took the gun from McCray. And
McCray told him, “I did what I had to do.” Then McCray and D.W. drove off. As
Miniko stood on Essex, he fired the gun into the remaining crowd, striking and
injuring two people. Miniko ran away toward Taft Road, where he met up with his
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other brother, 18-year-old Donyell Walker. Their aunt, Carletta Hayes, was driving
by when she and her teenaged daughter spotted them. Hayes stopped to pick them
up, and Miniko and Walker got into the back seat. As Hayes started to drive away,
she was stopped by police. Police recovered the gun that McCray and Miniko had
fired, a Kel-Tec semi-automatic pistol, from the back seat of Hayes’s vehicle. Miniko
and Walker were arrested.
{¶5} Shortly after the shooting, Janet Thomas, Hicks’s coworker, saw Hicks
and several carloads of teenagers in the parking lot of their workplace, two blocks
away from Essex and Taft. Thomas recognized Hicks’s vehicle. She saw one of the
young men with Hicks enter the office building and go into the men’s bathroom. He
had been wearing a gray hoodie before he went into the bathroom, but was no longer
wearing it when he exited.
{¶6} Five days later, police seized Hicks’s vehicle. The following day, they
photographed the vehicle and took lifts from it, attempting to obtain prints and
gunshot residue. Testing revealed gunshot residue on the interior surface of the
driver’s door and D.W.’s palm print on the exterior surface of the left rear door. Lifts
taken from the steering wheel and from the interior surface of the left rear door
tested negative for gunshot residue.
{¶7} An arrest warrant was issued for McCray. McCray did not return to
attend Dohn school, and police did not find him until ten months later. McCray was
arrested at his girlfriend’s apartment, where police recovered a Bryco firearm from a
bedroom dresser.
{¶8} In an interview with police detectives about the events of March 21,
2014, McCray said that someone had called to tell him that his younger brother,
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D.M., was in a fight. McCray told the police that he had been walking near the fight
when he heard gunshots and then ran the other way.
{¶9} The detectives told McCray that they knew he was driving Hicks’s
vehicle and that they had him “on video.” McCray asked if he could see the video,
but the detectives refused. McCray then admitted that he had been in Hicks’s
vehicle, but denied that he had fired a gun.
{¶10} Later in the interview, McCray admitted that he had been driving
Hicks’s vehicle and that he had fired two or three shots near the crowd before driving
away. McCray said that he stopped to pick up Miniko and then drove back around
the block. He said Miniko took the gun and got out of the car. According to McCray,
he heard four or five shots as he drove away, and he figured that Miniko had fired
them.
{¶11} At some point, Hicks entered the car. And, according to McCray, they
went with Hicks to her workplace to drop off her car. When asked if he had entered a
building there to use the bathroom, McCray said he had. He said that he was so
scared by firing a gun for the first time that he used the bathroom there to relieve his
bowels.
{¶12} In recorded telephone calls from jail, McCray told his mother, “They
got me.” When she asked him for what, he responded, “What do you think?” He told
her that the police told him that they had pictures of him at the scene and witness
statements. When in one of the jail calls a friend warned McCray that police would
lie to get him to incriminate himself, McCray claimed that the police had shown him
pictures of him and the car at the scene, and pictures from a video recording.
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{¶13} McCray was charged with murder and felony murder for the death of
J.M., two felonious-assault offenses for the injuries to D.L., and having a weapon
while under a disability. McCray was charged with a second weapon-under-disability
offense for his possession of the firearm on the date of his arrest. The predicate
disability for both weapons offenses was a 2012 juvenile adjudication for robbery.
{¶14} At trial, the parties stipulated to the predicate disability for the
weapons offenses.
{¶15} In his defense, McCray testified at trial that on the day of the
shootings, D.W. drove up in Hicks’s vehicle. McCray told D.W. to scoot over, so that
he could drive. As D.W. scooted over to the passenger’s seat, McCray noticed a Kel
Tec handgun in the middle of the driver’s seat. McCray said that D.W. grabbed the
gun and set it in his lap. After receiving a call that his brother, D.M., was “getting
jumped,” McCray drove to the fight. McCray testified:
I had pulled up next to the fight. And then as I was trying to
maneuver to pull up to Essex, I just heard gunshots from behind my
head. So then I started to drive off.
* * *
I guess, like, [D.W.], maneuvered, like - - I don’t know how he
maneuvered to get behind me to shoot out the window. I just know he
maneuvered behind me and he was sitting back down as we pulled
away.
{¶16} McCray said that he did not ask D.W. why he had fired the gun.
McCray said that when he drove around the block, he stopped to pick up Miniko.
Miniko jumped into the back seat and asked for the gun. According to McCray,
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Miniko grabbed the gun from D.W. McCray said that when they drove back around
the block, he did not see anyone who had been shot, and he assumed that D.W. had
fired the gun into the air.
{¶17} McCray testified that then he saw Hicks, so he pulled over. McCray
got into the backseat, and Hicks drove to her workplace. McCray said that he had
asked to use the bathroom there, but was told that he was not allowed to be in the
building.
{¶18} McCray acknowledged that his trial testimony differed from what he
had told the detectives. He said that in his interview with police, he had been trying
to be loyal to Hicks and D.W., and not implicate them. McCray admitted that,
despite what he told his friend in the recorded jail call, the police had not shown him
witness statements, photographs or video recordings. He admitted that the Bryco
gun recovered from the apartment was his.
{¶19} At the conclusion of the trial, the jury found McCray guilty of all the
offenses. For sentencing purposes, the trial court merged the felony-murder count
with the murder count, and merged the second felonious-assault count with the first
felonious-assault count. The trial court imposed an aggregate term of 38 years to
life. McCray now appeals.
First Assignment of Error: McCray’s Prior Juvenile Adjudication
{¶20} In his first assignment of error, McCray argues that the use of a prior
juvenile adjudication to establish the disability element of his weapon-under
disability convictions under R.C. 2923.13(A)(2) violated his right to due process. He
contends that, pursuant to State v. Hand, ___ Ohio St.3d ___, 2016-Ohio-5504,
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___ N.E.3d ___, “it was unconstitutional to use his juvenile adjudication as the
basis” for his weapon-under-disability convictions. He argues that this due-process
violation was further compounded because evidence of his prior juvenile
adjudication would not otherwise have been admissible at trial.
{¶21} In State v. Carnes, 1st Dist. Hamilton No. C-150752, 2016-Ohio-8019,
we recently declined to extend the application of Hand to bar the use of a juvenile
adjudication to prove the disability element of a weapon-under-disability charge
under R.C. 2923.13(A)(2). Therefore, we hold that McCray’s right to due process was
not violated by the use of his prior juvenile adjudication to prove the disability
element of his weapon-under-disability convictions. See Carnes; see also State v.
Hudson, 7th Dist. Mahoning No. 15 MA 0134, 2017-Ohio-645. And, as McCray
implicitly concedes, the disposition of the due-process issue renders moot his
argument that without the weapon-under-disability offenses, evidence relating to his
adjudication would be inadmissible other-acts evidence under Evid.R. 404(B). We
overrule the first assignment of error.
Second Assignment of Error: Voir Dire
{¶22} In his second assignment of error, McCray argues that he was denied
his constitutional right to an impartial jury because, during voir dire, “the state
excessively detailed the facts and evidence, and asked prospective jurors if they could
agree with the theory of prosecution.” During voir dire, McCray objected only one
time, to the prosecutor’s phrasing of a question, and he did not renew his objection
upon the prosecutor’s restatement of the question.
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{¶23} The scope of voir dire lies within the sound discretion of the trial court.
State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 28. Voir
dire may constitute reversible error only upon a showing that the trial court abused
its discretion. State v. Williams, 79 Ohio St.3d 1, 6, 679 N.E.2d 646 (1997). In this
case, we apply the even more deferential plain-error standard because McCray did
not object to the questioning by the state. See State v. Thompson, 141 Ohio St.3d
254, 2014-Ohio-4751, 23 N.E.3d 1096, ¶ 73.
{¶24} The appellant bears the burden of demonstrating that a plain error
affected his substantial rights. State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297,
802 N.E.2d 643, ¶ 14. The appellant must show that an error occurred, that the error
was an obvious defect in the trial proceedings, and that the error affected the
outcome of the trial. State v. Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873
N.E.2d 306, ¶ 16. “Notice of plain error under Crim.R. 52(B) is to be taken with the
utmost caution, under exceptional circumstances and only to prevent a manifest
miscarriage of justice.” State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978),
paragraph three of the syllabus.
{¶25} A. Outline of the facts. First, McCray claims that, during voir dire, the
prosecutor excessively described the facts and evidence of the case. He points to the
following remarks by the prosecutor:
The school had let out a short time before. There was a large
number of people around. It developed into a fistfight, with some of
the people, and the allegation is that the defendant, this man right
here, Trashon McCray, shot and killed a 14-year-old person and shot
and injured another teenager at the scene.
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He then left the scene, and he wasn’t arrested until January of
2015, around nine, ten months after the incident. Have any of you
heard of the incident other than what I just told you? I think it got
some attention just because it was a 14-year-old that was shot and
killed, basically, at or near a school ground.
{¶26} A prosecutor has a right to give an overview of the facts of the case and
of those involved in order to ascertain whether prospective jurors know anything
about the offense. State v. Tyler, 50 Ohio St.3d 24, 32, 553 N.E.2d 576 (1990).
While jurors must be impartial, they need not be completely ignorant of the facts and
issues involved in a case to be qualified as jurors. State v. Gross, 97 Ohio St.3d 121,
2002-Ohio-5524, 776 N.E.2d 1061, ¶ 38. In this case, the prosecutor explained that
the case had gotten media attention, so he reasonably attempted to learn what, if
anything, prospective jurors knew about the case. His statements and questions
were designed to do so. The trial court did not err by allowing the prosecutor to
outline the case’s facts and evidence.
{¶27} B. Plea bargains with state witnesses. McCray also asserts that the
trial court erred by allowing the prosecutor to explain the state’s reasons for giving
plea deals to some witnesses. The prosecutor told prospective jurors that Miniko
shot two people with the same gun that McCray had used, and that Miniko’s brother,
Donyell Walker, had assisted in Miniko’s getaway. The prosecutor said that the state
had offered plea deals to Miniko and Walker in exchange for their “truthful
testimony” so the state could make its case against McCray, “who we feel is the most
serious offender” and the “hands-on killer.”
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{¶28} A prosecutor may not express his or her personal belief or opinion as
to the defendant’s guilt. State v. Lott, 51 Ohio St.3d 160, 166, 555 N.E.2d 293 (1990).
So it was improper for the prosecutor to refer to the prosecution team’s belief that
McCray was guilty and that he was the worst offender. Even though the prosecutor’s
remarks were improper, McCray has failed to demonstrate plain error because the
evidence of his guilt was overwhelming. See Payne, 114 Ohio St.3d 502, 2007-Ohio
4642, 873 N.E.2d 306, at ¶ 16.
{¶29} A prosecutor may validly explore the possibility that prospective jurors
might be predisposed to discount the testimony of inmate witnesses. State v.
LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 124. In other words,
a prosecutor may try to “ ‘draw the sting’ from the unfavorable fact that [some of] the
state witnesses were accomplices and had plea-bargained to minimize their criminal
exposure.” State v. Lundgren, 73 Ohio St.3d 474, 484, 653 N.E.2d 304 (1995),
quoting Tyler, 50 Ohio St.3d at 34, 553 N.E.2d 576. In this case, the prosecutor
reasonably explored the possibility that prospective jurors might be disinclined to
believe the testimony of witnesses who were accomplices in the offenses.
{¶30} C. Discussing victim responsibility. McCray asserts that the
prosecutor improperly speculated about why J.M. was standing near the street fight
on the day he was shot. McCray emphasizes the prosecutor’s remark that J.M. “may
have been just meeting some friends.” He does not say how he was prejudiced by
this particular remark. When read in its full context, it is clear that the prosecutor
wanted to learn if prospective jurors would blame the victim for putting himself near
the scene of a fight, no matter what led to the victim’s being there:
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As far as victim responsibility, the evidence is going to show
that the victim was - - he didn’t go to that school, he went to Withrow,
and he went down to the Dohn School after Withrow, and he may have
been just meeting some friends; he may have heard that there was
going to be a fight and just went down there to see what was going on,
because I think word was out that something was going to happen that
afternoon down at the school.
Does anybody feel that, you know, because he went to that
situation, it basically put himself at the scene when he really didn’t
need to be there, that somehow he deserved what happened or
somehow that absolves the shooter for doing a voluntary and
intentional act that caused his death?
Anybody feel that way, that he wasn’t at the school, he
shouldn’t have been there, even if he was meeting some buddies or
wanted to see kind of what was going on?
The prosecutor was attempting to determine whether prospective jurors could fairly
weigh the evidence. See Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d
1173, at ¶ 57. The trial court did not err in allowing the prosecutor to inquire into
potential bias through this line of questioning.
{¶31} D. Difficulty of producing eyewitnesses. McCray also contends that
the trial court improperly allowed the state to persuade prospective jurors to agree
with its “theories of prosecution” with respect to the difficulty of producing an
eyewitness to the shooting. The prosecutor asked if any prospective jurors expected
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numerous witnesses to identify McCray as the shooter, given the large number of
people in the area at the time of the incident. Prospective Juror 2 responded:
No, because when you’re involved in a situation like that, you’re
not always looking at what’s going on. You’re looking around at other
people, like, chatting, and then you’re, like, what happened, like, at a
baseball game, what’d I miss.
Then the prosecutor asked, “So you might hear something happen, hear some shots
or commotion, but by the time you look around, it’s too late?” The juror responded,
“Yeah.”
{¶32} Then the prosecutor asked the panel:
Does everybody understand what [Prospective Juror 2] is
saying? I think that was a very good response, and I think that’s what
happened in this case and the shots happened from a car, so it wasn’t
from somebody that was in the crowd, which makes it even harder to
see the person that did it.
Does everybody agree with that theory? Are you okay with
that?
{¶33} A review of the record demonstrates that the prosecutor was neither
espousing a theory of the state’s case nor seeking agreement on a theory. Instead, he
was questioning whether prospective jurors could fairly assess and weigh the
evidence, given the circumstances. See Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981,
836 N.E.2d 1173, at ¶ 57.
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{¶34} E. Implying that an eyewitness identified McCray. McCray also
contends that the trial court improperly allowed the prosecutor to ask prospective
jurors:
Does everybody understand the thought that even if [the police]
may have gotten the statement from somebody that maybe identifies
Mr. McCray or has some relevance to the case, that it’s another matter
almost two years later to try to get them to come to court?
This question followed the prosecutor’s line of questioning about why witnesses
might not want to come forward to the police. Prospective Juror 5 responded that it
could result from a fear of reprisals. Then the prosecutor said, “Okay. That if you’re
a student or may know the shooter or his people may come after you if you let it
become known that you’re a witness?” And the juror responded affirmatively. The
prosecutor then said:
[E]verybody understand what [Prospective Juror 5] said?
Everybody understand that thought, that when you’ve got uniformed
police at a scene or homicide detectives, that people just don’t go up to
them and say, hey, I saw what happened because they are kind of
fronted out maybe by other people that are in the crowd?
The prosecutor’s suggestion that a witness who had identified McCray had refused to
testify at trial was improper. See Lott, 51 Ohio St.3d at 166, 555 N.E.2d 293.
However, the error did not rise to the level of plain error because the outcome of the
trial was not affected. See Payne, 114 Ohio St.3d 502, 2007-Ohio-4642, 873 N.E.2d
306, at ¶ 16. And the trial court properly instructed the jury that the statements by
counsel are not evidence.
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{¶35} F. Comments on evidence. McCray asserts that the prosecutor
improperly told the jury that the prosecution would use ballistic and video evidence
at trial, but not DNA evidence. The prosecutor stated:
This case, though, does have important, we call it ballistic
evidence. With that, what that means is it involves guns, bullets,
casings, those type of things.
Is everybody good with scientific evidence, and the experts have
the right training and background, and you believe that the procedures
the experts did were properly done?
You can’t really see faces or identities, but you will see it from a
little bit of a distance, the actual murder of [J.M.], and the wounding
of [D.L.], so there is some video of the offense. Because that is
probably - - in this case the most important piece of evidence is the
video. And you will consider that video if it is admitted into evidence.
Everybody good with that?
* * *
Okay. So there’s a lot about DNA exonerations. In this case
there was DNA taken, but it was never really followed up on because
once the defendant admitted that he was the shooter, you know, the
lab stuff kind of stopped. Do you understand that?
McCray does not say how the remarks were improper or what prejudice he may have
suffered. We find that the trial court did not err in allowing them. See Payne at ¶ 16.
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{¶36} G. Comments on the defense. McCray contends that the prosecutor
should not have made comments about what his defense would be. The prosecutor
stated:
Every case is unique. There is no exception. I’m not sure really
where this is going to fit in the scheme of things. Some cases, the
identity of the defendant is known, and those kind of cases might be
like a self-defense case or a consent type of a case, and that comes up
where if it’s like a murder, or let’s say a rape, so a defendant in a
murder says I did it, but I had to do it or else myself or some other
innocent person would be killed; I had no choice, it was self-defense.
Or in a rape there’s no issue that sexual conduct occurred, both
the victim and the defendant are saying yes, there was sex, but the
victim is saying that it was force and the defendant is saying it was
consent, so there’s really no issue that something occurred; it’s just
what the state of mind of the person was.
So, basically, the identity of the person is agreed. The issue is
what their intent is. I don’t really know what the defense is in this
case. I don’t believe it’s gonna be a self-defense type of situation.
I don’t think that’s gonna come out. I don’t think that’s gonna
be relevant to the issues in this case. If it is, you’ll follow the law the
Judge gives you on this issue? It’s a very specific rule. Again, I don’t
think it’s going to come up, but if it is, everybody will follow the law
that [the trial judge] gives you on that?
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The prosecutor ultimately was asking whether prospective jurors could follow the
trial court’s instructions on the law. While it is improper to comment on a
defendant’s failure to testify, it is not improper to outline potential legal defenses and
to ask prospective jurors whether they will follow the law. A prospective juror who
indicates that he or she will not follow the law may be challenged for cause. R.C.
2313.17(B)(9). Therefore, parties may ask prospective jurors if they will follow the
law. See, e.g., State v. Treesh, 90 Ohio St.3d 460, 465, 739 N.E.2d 749 (2001). The
trial court did not err by permitting the question.
{¶37} H. McCray’s statements to police. McCray contends that the trial
court should not have allowed the prosecutor to ask if prospective jurors agreed that
it was important to hear McCray’s statements to police, because the prosecutor’s
question left him no choice but to testify at trial. The prosecutor said:
Another important part of the case is actually the defendant’s
own statements to the Cincinnati Police. And I would say other than
the video that I talk about as being the most important part of the case,
Trashon McCray’s own statements to homicide detectives are probably
the second most important part of this case.
Does everybody agree that what Mr. McCray told the police
after his arrest for the murder, would that be important to you to know
what he says about what his role was in this? Would everybody agree
that’s important to hear his side of the story?
{¶38} The prosecutor may properly refer to and inquire about statements
that will be admitted into evidence. State v. Sneed, 63 Ohio St.3d 3, 16, 584 N.E.2d
1160 (1992). He may not comment on the defendant’s exercise of his constitutional
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right not to testify. State v. Mapes, 8th Dist. Cuyahoga No. 47191, 1984 WL 5285,
*13 (Oct. 25, 1984).
{¶39} Here, any comments regarding McCray’s statements to police were
permissible. The comment seeking agreement that it would be important to hear
McCray’s side of the story would have been improper if considered in a vacuum. The
prosecutor may not comment on the defendant’s failure to “tell his side of the story”
at trial. State v. Heller, 10th Dist. Franklin No. 01AP-648, 2002 WL 338143, *4
(Mar. 5, 2002). Taken in context, however, we find that this comment related only to
McCray’s prior statements to police and was not commentary on his testimony, or
lack thereof, at trial. See State v. Wilson, 74 Ohio St.3d 381, 387, 659 N.E.2d 292
(1996).
{¶40} I. McCray’s jail calls. McCray asserts that the trial court improperly
allowed the state to present him as indigent and unable to make bond, “thus making
it clear he was being held in jail.” The prosecutor told prospective jurors that the
state might present recordings of calls that had been made from jail. The prosecutor
stated:
And what that means is that when somebody’s arrested and
charged with a crime like murder and they don’t have enough money
to make bond, they are in the jail, and they have access to phones.
And there’s notice to the people that their calls are recorded
and those calls are available to law enforcement to listen to those calls
after they are made.
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And we may or may not use those in this case, but does
anybody have a problem if we use jail calls to Trashon McCray to play
to you about some of the things he said about the situation?
{¶41} While generally it is error to comment on a defendant’s being in jail,
when taken in context, the prosecutor was attempting to determine whether jurors
would fairly consider evidence of recorded calls. The prosecutor explained:
The reason I bring that up is I had a jury once where a juror felt
that was unfair, that because he’s locked up that he’s - - it’s an unfair
advantage to the State to be able to record his calls from a correctional
facility; that somehow puts him at a disadvantage if he wants to use
the phone.
Does anybody feel that way, that somehow it’s really not fair to
him to listen to his calls and play those somewhere down the road if
they are relevant to this case? Everybody good with that? Okay.
We hold that, even if the trial court erred by allowing the prosecutor to mention that
the calls were made from jail, it was not plain error. See Thompson, 141 Ohio St.3d
254, 2014-Ohio-4751, 23 N.E.3d 1096, at ¶ 73. We overrule the second assignment of
error.
Third Assignment of Error: Prosecutorial Misconduct
{¶42} In his third assignment of error, McCray argues that his right to due
process was violated by prosecutorial misconduct. Generally, prosecutorial
misconduct will not provide a basis for overturning a conviction unless, on the record
as a whole, the misconduct can be said to have deprived the defendant of a fair trial.
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Lott, 51 Ohio St.3d at 166, 555 N.E.2d 293. The test for whether prosecutorial
misconduct mandates reversal is whether the prosecutor’s remarks or actions were
improper, and, if so, whether they prejudicially affected the substantial rights of the
accused. State v. Smith, 97 Ohio St.3d 367, 2002-Ohio-6659, 780 N.E.2d 221, ¶ 45.
In most of the instances cited by McCray, he failed to object, so his challenges to the
prosecutor’s conduct are reviewed for plain error. See id.
{¶43} A. Voir dire. McCray restates his arguments with respect to the
prosecutor’s voir dire. As we have discussed in our resolution of the second
assignment of error, no plain error occurred in voir dire. See Thompson at ¶ 163.
{¶44} B. Leading questions. McCray contends that the prosecutors “asked
improper leading questions with impunity throughout trial.” McCray objected to just
one of the challenged questions. In that instance, the prosecutor asked if the witness
remembered McCray’s having made a particular statement about the gun “at or
about the time that you took it from him.” Defense counsel objected, and the trial
court asked the witness whether he had remembered any conversation with the
defendant. The witness clarified that McCray had not made the statement until after
the witness had taken the gun. Because the trial court stepped in to restate the
question so that it was not leading, McCray cannot demonstrate that prejudice
resulted from the question. See State v. Diar, 120 Ohio St.3d 460, 2008-Ohio-6266,
900 N.E.2d 565, ¶ 172.
{¶45} We have reviewed the remaining questions that McCray has
challenged as leading and conclude that the trial court did not commit plain error by
allowing them. See State v. McKelton, 148 Ohio St.3d 261, 2016-Ohio-5735, 70
N.E.3d 508, ¶ 264.
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{¶46} C. Closing argument. McCray argues that the prosecutors made
prejudicial comments and incorrect statements during closing argument. A
prosecutor is entitled to a certain degree of latitude in closing argument. State v.
Grant, 67 Ohio St.3d 465, 482, 620 N.E.2d 50 (1993). A prosecutor may draw
reasonable inferences from the evidence presented at trial and comment on those
inferences in closing argument. Treesh, 90 Ohio St.3d at 466, 739 N.E.2d 749. We
review a prosecutor’s closing argument in its entirety to determine whether the
allegedly improper remarks were prejudicial. State v. Were, 118 Ohio St.3d 448,
2008-Ohio-2762, 890 N.E.2d 263, ¶ 198. In this case, except for two instances,
McCray failed to object and thus forfeited all but plain error. See State v. Pickens,
141 Ohio St.3d 462, 2014-Ohio-5445, 25 N.E.3d 1023, ¶ 109.
{¶47} After reviewing the closing arguments in their entirety, we are
convinced that the majority of the challenged remarks were fair commentary based
upon reasonable inferences from the evidence. See Treesh at 466. To the extent that
any imprecise statements about the evidence were made, the trial court addressed
the issue by instructing the jury that the arguments of counsel were not evidence and
that the jurors were the sole judges of the facts. See Diar, 120 Ohio St.3d 460, 2008
Ohio-6266, 900 N.E.2d 565, at ¶ 211. While we do not specifically address each of
the challenged remarks, we address certain representative examples.
{¶48} i. Misstatement of the evidence. McCray points to the prosecutor’s
inaccurate statement that gunshot residue had been found on the steering wheel of
Hicks’s vehicle. The trial court sustained a defense objection to the comment and
instructed the jurors that they would determine what the evidence was. The
prosecutor then clarified that the residue had been found on the driver’s side of the
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vehicle. In light of these corrective actions, McCray has failed to demonstrate that
these remarks were prejudicial. See Pickens at ¶ 128.
{¶49} McCray also contends that the prosecutor improperly stated that DNA
evidence “would have been masked or destroyed by the three other people who
touched [the gun] after him.” Although there was no evidence supporting the
prosecutor’s assertion, this comment was in response to the defense argument that
no DNA evidence connected McCray to the gun, and it did not result in plain error.
See Diar at ¶ 211.
{¶50} Next, McCray asserts that the prosecutor inaccurately stated that he
had fired the gun “at least six” times, when, according to McCray, the videotape
“audibly demonstrate[d] five shots” had been fired. However, this was fair
commentary, given that D.L. had testified that he had heard “more than seven”
gunshots. See Treesh, 90 Ohio St.3d at 466, 739 N.E.2d 749.
{¶51} McCray also argues that the prosecutor misstated his testimony by
saying that he had testified that “nobody was on the ground,” when McCray’s
testimony had been that he did not see people on the ground. The prosecutor’s
remark was a reasonable inference from the evidence. See id.
{¶52} McCray asserts that the prosecutor misstated evidence by arguing that
McCray “g[ave] Miniko the gun,” because Miniko testified that he took the gun from
McCray. This was fair commentary on the evidence, since Miniko had responded
affirmatively to the question, “[D]id you say you got it from [McCray]?” Additionally,
Miniko admitted that he had told the police that someone had given him the gun.
See id.
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{¶53} ii. Personal beliefs about McCray’s credibility and guilt. Prosecutors
may not state their personal beliefs about the defendant’s credibility, but they may
characterize a witness as a liar, or a claim that a witness lied, where the evidence
reasonably supports that characterization. State v. Howard, 1st Dist. Hamilton No.
C-130058, 2014-Ohio-655, ¶ 32. In this case, McCray admitted that he had
repeatedly lied to the police, and the prosecutor’s remarks about his credibility were
reasonably drawn from the evidence, so no error occurred. See State v. Hand, 107
Ohio St.3d 378, 2006-Ohio-18, 840 N.E.2d 151, ¶ 117.
{¶54} McCray argues that the prosecutor improperly stated that he thought
that he “was going to outsmart the state” when he testified that he had not gone into
the bathroom at Hicks’s workplace. The prosecutor was referring to the fact that
McCray’s trial testimony differed from his statement to police, wherein he admitted
he had used the bathroom to relieve his bowels. This was fair comment on the
discrepancy between his statement to police and his trial testimony. Id.
{¶55} McCray contends that the prosecutor implied that he was dishonest
and guilty in several instances. In one instance, the prosecutor asked the jury to
consider McCray’s testimony in light of his jail calls:
You were so scared[,] that you forgot that [D.W.] was the real
murderer in those jail calls. You were so depressed that you decide
that there was also all this evidence pointing at you when you weren’t
the murderer? He had a right to be scared and depressed. Don’t get
me wrong. He had finally gotten caught for the murder he committed
on March 21, 2014, finally after months of hiding.
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In another instance, the prosecutor asked jurors to consider why McCray would have
given police a false name at the time of his arrest: “Why would an innocent person
lie about who he is? What is he hiding from?” In both instances, the prosecutor
properly asked the jurors to draw reasonable inferences from the evidence and the
testimony, and did not improperly state her personal opinion about McCray’s
credibility or guilt. See id.
{¶56} McCray argues that the prosecutor improperly commented on his
choice to go to trial, where the prosecutor said:
Another prosecutor I’ve worked with talks a lot about why
people go to trial in strong cases against them. We do, and [the other
prosecutor] and I agree, we have to prove our case beyond a
reasonable doubt. I may ask why - - she asked venue, which means
where did we say this crime occurred. In Hamilton County, Ohio. If
we forget to ask that, the case could be dismissed because we didn’t
show that.
Or somebody could be shot on the 50-yard line at the Super
Bowl, and there could still be a trial. Sometimes in the news you see
something like, wait a minute, they pled not guilty. Like, how could
that be. This is that kind of case.
If the video happens to be erased, if the defendant’s statement
is lost, or if we don’t get the jail calls, that’s up to us to request. So if
we don’t even ask for those, we don’t have them and you don’t have
them.
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The prosecutor’s remarks were an unfair comment on the defendant’s fundamental
right to a jury trial. See State v. Miller, 1st Dist. Hamilton No. C-010543, 2002
Ohio-3296, ¶ 36. However, after assessing the prosecutors’ improper remarks within
the context of the entire trial, and more particularly the entire closing argument, we
hold that no prejudice resulted in light of the overwhelming evidence of guilt. See
State v. Hart, 94 Ohio App.3d 665, 674, 641 N.E.2d 755 (1st Dist.1994).
{¶57} iii. Vouching for state’s witnesses. McCray contends that the
prosecutor improperly bolstered Miniko’s testimony by implying that he was
truthful. The trial court sustained the defense objection to the remark, and McCray
has failed to demonstrate that he was prejudiced.
{¶58} McCray argues that the prosecutor improperly vouched for the skill of
the police. The prosecutors said of the detectives that they “did an excellent job of
interviewing” McCray, and that it was not “until the police do their job and do a great
job on this case, and get those photos (of McCray holding the gun)” so that he could
not deny that the gun found at his girlfriend’s apartment was his. The remarks,
however, addressed the thoroughness of the investigation, and not the credibility of
the detectives. See State v. Perez, 124 Ohio St.3d 122, 2009-Ohio-6179, 920 N.E.2d
104, ¶ 182. And the statements were based upon the evidence produced at trial, “not
on outside-the-record evidence or the prosecutor’s experience or personal opinion.”
Id. at ¶ 183.
{¶59} iv. Appeal to the jurors’ emotions. McCray argues that the prosecutor
improperly appealed to the emotions of the jurors when she argued:
The only justice for [J.M.], the only justice for the young man
who was gunned down and was dying in the streets with his last breath
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as he was gasping for air - - he asked his friend, am I going to die - -
the only justice for him is to find this man guilty.
The prosecutor’s remark was based upon the evidence presented at trial. D.L.
testified that after he and J.M. were shot, J.M. repeated, “I’m gonna die * * * I’m hit,
I’m shot.” A bystander’s efforts to resuscitate J.M. had failed, and the pathologist
testified that J.M. had suffered from hypoxia as a result of his wounds. Moreover, a
prosecutor’s isolated remark calling for justice for a murder victim is not inherently
improper and may well fall “within the creative latitude afforded both parties in
closing arguments.” State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d
31, ¶ 311.
{¶60} v. Miscarriage of justice. McCray contends that the prosecutor
implied that a not-guilty finding would be a miscarriage of justice. The prosecutor
explained the differences between murder, as charged in count 1 of the indictment,
and felony murder, as charged in count 2 of the indictment:
Now, the two different murders. Count 2 is there to prevent a
miscarriage of justice in this case if you don’t feel that we proved Count
1; and Count 1, as [the other prosecutor] said, we have to show his
purpose or intent was to take [J.M.’s] life. That had to be what his
purpose was when he fired that gun.
And I would submit to you, as [the other prosecutor] said, that
when you point a gun at somebody and you hit them three times and
hit somebody else a number of times, your intent or purpose is to take
their life.
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But in Count 2, all you have to show is that the mental - - and
this is in your jury instructions that [the trial judge] will give you - - is
that the mental state is called knowingly, not purposely.
This was proper argument because the prosecutor was explaining the difference
between the two counts of murder and the different elements involved in each count.
When taken in context, the prosecutor did not imply that a not-guilty finding on both
counts would be a miscarriage of justice.
{¶61} vi. Commenting on Other-Acts Evidence. McCray complains that the
prosecutor improperly commented on “other-acts evidence,” but a review of the
record shows that the prosecutor was commenting on evidence admitted during trial.
And McCray did not object to this evidence during the trial. He only objects to it in
this appeal as being improperly admitted to establish the disability for the weapons
charges.
{¶62} The prosecutor noted that, in interviewing McCray, the police had
convinced him that they knew more about McCray’s involvement in the shooting
than they actually did:
Because [McCray] knows what he did, and he thinks that the police
know exactly what he did. And, again, he still minimizes, but he does
say that he was the shooter. Just like he minimized his own role in
that robbery that he told you about yesterday.
If you remember what he said, he somehow justified it, that he
needed birthday money, and that the older kid - - and he called them a
little .22, like it wasn’t much of a gun; it was just a little .22, implying it
really wasn’t too bad because it was a small gun.
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The prosecutor’s remarks were reasonably drawn from the evidence and did not urge
the jury to find him guilty of the present offenses on the basis that he had acted in
conformity with the prior offense. See Evid.R. 404(B).
{¶63} vii. Closing argument conclusion. After reviewing the prosecutors’
closing arguments in their entirety, we hold that, although the prosecutors made
some improper remarks, these remarks “did not permeate the state’s argument” so
as to deny McCray a fair trial. See Thompson, 141 Ohio St.3d 254, 2014-Ohio-4751,
23 N.E.3d 1096, at ¶ 203. Consequently, we overrule the third assignment of error.
Fourth Assignment of Error: Ineffective Assistance of Counsel
{¶64} In his fourth assignment of error, McCray argues that he was denied
the effective assistance of counsel. To prevail on an ineffective-assistance claim, an
appellant must demonstrate that his counsel’s performance was deficient, and that,
in the absence of counsel’s errors there is a reasonable probability that the result of
the trial would have been different. Strickland v. Washington, 466 U.S. 668, 687,
104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 141-142,
538 N.E.2d 373 (1989). Our review of counsel’s performance must be “highly
deferential.” Strickland at 689.
{¶65} A. Failing to request jury instructions. McCray asserts that his
attorneys’ performance was deficient because they failed to request jury instructions
on the lesser offenses of voluntary manslaughter and aggravated assault, both of
which include the mitigating circumstance of serious provocation occasioned by the
victim. See R.C. 2903.03(A) and 2903.12(A)(1). Generally, the failure to request jury
instructions on lesser offenses is a matter of trial strategy and does not establish
OHIO FIRST DISTRICT COURT OF APPEALS

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ineffective assistance of counsel. State v. Griffie, 74 Ohio St.3d 332, 333, 658 N.E.2d
764 (1996). In this case, a request for instructions on voluntary manslaughter and
aggravated assault would have been at odds with McCray’s having maintained
throughout his testimony that he was not the shooter. Thus, the decision by defense
counsel to seek acquittal rather than inviting conviction on a lesser offense was a
matter of trial strategy. See State v. Clayton, 62 Ohio St.2d 45, 47, 402 N.E.2d 1189
(1980); State v. Helton, 1st Dist. Hamilton No. C-850826, 1986 WL 14069, *3 (Dec.
10, 1986). Therefore, we cannot say that counsel’s performance was deficient.
{¶66} B. An “illogical and feckless defense.” McCray contends that defense
counsel should not have allowed him to testify that he had been driving the car. He
asserts that his admission to driving the car “made him complicit and guilty of the
murder and felonious assault.” As he concedes, however, the issue of complicity
never arose at trial. Nor did the trial court instruct the jury on complicity.
Therefore, any claim that the jury would have found him guilty as a complicitor is
purely speculative.
{¶67} C. Failure to object during voir dire. McCray argues that defense
counsel was deficient for not objecting to the state’s detailed description of the facts
and prospective evidence of the case during voir dire. Appellate courts decline to
second-guess the way defense counsel conducts voir dire. State v. Mundt, 115 Ohio
St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, ¶ 63. In this case, we cannot say that
counsel’s performance in voir dire was deficient. Moreover, McCray has failed to
demonstrate that the jury was not impartial. See id.
{¶68} D. Failure to object to closing arguments. McCray argues that
defense counsel was deficient for failing to object to improper comments by the
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prosecutors during closing arguments. It is well settled that the failure to make
objections, on its own, is not enough to sustain a claim of ineffective assistance of
counsel. State v. Conway, 109 Ohio St.3d 412, 2006-Ohio-2815, 848 N.E.2d 810, ¶
103. Objections “tend to disrupt the flow of a trial” and may be “considered technical
and bothersome by the fact-finder.” State v. Campbell, 69 Ohio St.3d 38, 53, 630
N.E.2d 339 (1994). And an objection “may draw unwanted attention to an issue that
might pass without the jury’s notice absent the objection.” State v. Ridder, 1st Dist.
Hamilton No. C-150460, 2016-Ohio-5195, ¶ 20. Therefore, as a matter of trial
strategy, a reasonable attorney may hesitate to interrupt opposing counsel’s
arguments. State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶
42.
{¶69} McCray has failed to demonstrate that, but for counsel’s failure to
object to the state’s closing arguments, the outcome of his trial would have been
different. See Strickland, 466 U.S. at 687, 104 S.Ct. 2052, 80 L.Ed.2d 674; State v.
Bradley, 42 Ohio St.3d at 142, 538 N.E.2d 373. We overrule the fourth assignment
of error.
Fifth Assignment of Error: Weight of the Evidence
{¶70} In his fifth assignment of error, McCray challenges the weight of the
evidence upon which his convictions were based. When considering a challenge to
the weight of the evidence, this court must review the entire record, weigh the
evidence and all reasonable inferences, consider the credibility of the witnesses, and
determine whether, in resolving conflicts in the evidence, the trier of fact clearly lost
its way and created a manifest miscarriage of justice. State v. Thompkins, 78 Ohio
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St.3d 380, 387, 678 N.E.2d 541 (1997). Because the trier of fact is in a better position
to observe the witnesses’ demeanor and to assess their credibility, the weight of the
evidence and the credibility of the witnesses are primarily for the trier of fact. State
v. DeHass, 10 Ohio St.2d 230, 227 N.E.2d 212 (1967), paragraph one of the syllabus.

Outcome: