State v. Agee

2016 Ohio 7183

• Court: Ohio Court of Appeals
• Decided: September 30, 2016
• Docket: 14 MA 0094
• Status: Published

Opinion

[Cite as State v. Agee, 2016-Ohio-7183.] STATE OF OHIO, MAHONING COUNTY

IN THE COURT OF APPEALS

SEVENTH DISTRICT

STATE OF OHIO ) CASE NO. 14 MA 0094 ) PLAINTIFF-APPELLEE ) ) VS. ) OPINION ) KEVIN D. AGEE, JR. ) ) DEFENDANT-APPELLANT )

CHARACTER OF PROCEEDINGS: Criminal Appeal from the Court of Common Pleas of Mahoning County, Ohio Case No. 10 CR 1135

JUDGMENT: Affirmed.

APPEARANCES:

For Plaintiff-Appellee: Atty. Paul J. Gains Mahoning County Prosecutor Atty. Ralph M. Rivera Assistant Prosecuting Attorney 21 West Boardman Street, 6th Floor Youngstown, Ohio 44503

For Defendant-Appellant: Atty. Timothy Young Ohio Public Defender Atty. Kenneth R. Spiert Assistant State Public Defender 250 East Broad Street, Suite 1400 Columbus, Ohio 43215

JUDGES:

Hon. Cheryl L. Waite Hon. Gene Donofrio Hon. Mary DeGenaro Dated: September 30, 2016 [Cite as State v. Agee, 2016-Ohio-7183.] WAITE, J.

{¶1} Appellant Kevin D. Agee, Jr. appeals the June 17, 2014 decision of the

Mahoning County Court of Common Pleas denying his amended petition for

postconviction relief without an evidentiary hearing in this capital case. Appellant

was convicted of murder, in violation of R.C. 2903.02(A), (D), a felony of the first

degree, with an accompanying firearm specification pursuant to R.C. 2941.145(A);

attempted murder, in violation of R.C. 2923.02(A) and 2903.02(A), (D), a felony of the

first degree, with an accompanying firearm specification pursuant to R.C.

2941.145(A); felonious assault, in violation of R.C. 2903.11(A)(2), (D), a felony of the

second degree, with an accompanying firearm specification pursuant to R.C.

2941.145(A); and felonious assault, in violation of R.C. 2903.11(A)(1), (D), a felony of

the second degree, with an accompanying firearm specification pursuant to R.C.

2941.145(A). Appellant’s convictions resulted from his participation in the drive-by

shooting of an elderly couple on the south side of Youngstown. Appellant was

driving. His passenger fired a weapon into the victims’ 1990 Cadillac DeVille in the

mistaken belief that the automobile belonged to a neighborhood rival. Appellant was

sentenced to fifteen years to life in prison for the murder conviction, ten years for

attempted murder, plus three years on two merged firearm specifications, for an

aggregate sentence of 28 years to life of imprisonment. The felonious assault

charges were merged at sentencing. For the reasons that follow, the judgment of the

trial court is affirmed.

Facts and Procedural History -2-

{¶2} The procedural history and facts of this case were set forth in this

Court’s previous opinion in State v. Agee, 7th Dist. No. 12 MA 100, 2013-Ohio-5382:

Appellant’s friend, Aubrey Toney, was involved in an ongoing feud with

two individuals nicknamed Piru and OB. It seems that Piru believed

Aubrey Toney shot at his house, and Aubrey Toney believed that Piru

retaliated by shooting up his car. Aubrey Toney also believed that he

was once arrested due to Piru snitching on him. And, Aubrey Toney

was upset that OB punched him in the back of the head at a gas

station, causing him to suffer migraines. OB was known to drive a

burgundy 1990 Cadillac DeVille that was described as “old school” and

“flashy.” (Tr. 178, 482).

On September 25, 2010, Aubrey Toney was at a little league football

game with appellant Kevin Agee when he received a call from his

female cousin sometime around the noon hour, stating that Piru was

across the street from Toney’s father’s house on Ferndale Avenue. His

male cousin got on the phone as well to ask about the Piru situation.

Aubrey Toney and appellant soon arrived at the female cousin’s house

on Hilton Avenue and borrowed her reddish or burgundy Dodge

Durango, leaving the small car Toney had been driving at her house.

When the male cousin learned that Aubrey Toney borrowed the

Durango, he was concerned and called Toney who advised that he

would have to call him back because he has “dibs on somebody now.” -3-

(Tr. 375). Appellant Kevin Agee drove the Durango with Aubrey Toney

in the passenger seat. At some point, appellant drove down Southern

Boulevard and turned down a short dead-end portion of Philadelphia

Avenue. He then turned around and stopped at the stop sign at

Philadelphia Avenue and Southern Boulevard.

In the meantime, around 1:00 p.m., Thomas Repchic, age 74, was

sitting in his burgundy 1990 Cadillac DeVille outside of St. Dominic’s

church, on the corner of Southern Boulevard and Lucius Avenue

waiting for his wife, who worked as a secretary at the church.

Jacqueline Repchic, also 74, got in their Cadillac, and they proceeded

north on Southern Boulevard.

As the Cadillac approached the Durango at Philadelphia Avenue,

Aubrey Toney wrested a large .308 rifle from next to his seat and fired

seven shots into the Repchic vehicle. One shot went through the

passenger door and took off Mrs. Repchic’s right foot; her other foot

was also injured by bullet fragments. (Tr. 56-57). Another shot went

through the back of the driver’s seat and killed Mr. Repchic by entering

his lung and heart. Mrs. Repchic reached over and steered the car into

the curb just before the busy y-junction at Market Street.

The City of Youngstown’s Shotspotters system triangulated the seven

shots it heard as occurring near the Southern Boulevard and -4-

Philadelphia Avenue intersection and transmitted this information to its

patrol cars. Officers followed a blood trail leading from the car toward

the intersection where they found a fired .308 cartridge in the middle of

the street.

The police interviewed witnesses near that area who saw a red

Durango go down the street and saw gun smoke near the Durango

after the shots were fired. The Durango was also seen on various

security cameras at the time of the shooting. A witness said the

passenger was a dark-skinned black male with short hair and the driver

was a lighter-skinned black male with a bushy ponytail. (Tr. 96).

Appellant was a lighter-skinned black male with long dreadlocks, and

Toney’s female cousin stated that the person with Toney, whom she

believed would be driving her car that day, had his hair “locked up.” (Tr.

174, 381, 460).

Aubrey Toney returned the Durango to his cousin 20-35 minutes after

he borrowed it. (Tr. 175). Later that evening, Aubrey Toney apologized

to her for putting her in the middle of his feud and gave her money to

stay in a hotel. (Tr. 177, 184, 199). The police canvassed the area and

spoke to each person who owned a Durango. Aubrey Toney’s cousin

initially denied that she loaned out the vehicle, but she soon admitted

that she loaned him the vehicle at the time of the shooting and told

police what she knew about the feud. -5-

Aubrey Toney’s male cousin also spoke to police about the feud and

about Aubrey’s statements to him on the phone around the time of the

shooting, such as that he “had dibs” on someone. And, in the second

call, Toney stated, “I think I got him.” (Tr. 375, 405, 418). This male

cousin also told the police that appellant Kevin Agee was involved and

opined that the gun would be found in appellant’s garage, describing a

house on Garfield Street. (Tr. 381-383).

On September 28, 2010, the police executed a search warrant at the

house on Garfield just as appellant was exiting the house. They found

an unfired .308 cartridge on the living room bookshelf. A BCI agent

testified at trial that this unfired cartridge had been cycled through a gun

and had extractor marks that matched the fired cartridge found at the

scene of the shooting. The police also seized guns, other ammunition,

bullet proof vests, crack cocaine, drug paraphernalia, and a ball cap

with a red C on it which matched the description of the hat worn by one

of the occupants of the Durango.

When appellant was interviewed by police, he initially stated that he

saw Aubrey Toney at the game but left with someone else and that he

was not present during the shooting. (DVD Tr. 14-15, 27, 30, 32-33).

He stated that Aubrey Toney is one of his closest friends, that he loved

him, that Aubrey was constantly at his house, and that they often got

high together. (DVD Tr. 19-20, 26, 32, 61). He knew of Aubrey -6-

Toney’s feud with Piru and OB, and he knew that OB had a car like the

one on the news. (DVD Tr. 9-14). Regarding the unfired .308

cartridge, he stated that Aubrey Toney had a very long gun at his house

one night, that he heard Aubrey making metallic “clacking” noises with

it, and that Aubrey must have left some .308 ammunition behind. (DVD

Tr. 16, 35, 60).

Appellant’s grandmother then spoke to him. She stated that security

cameras on the streets showed him driving the vehicle and said that the

hat described by a witness was found in his house. (DVD Tr. 63, 65).

She disclosed that an eyewitness described one person as darker-

skinned and the other as lighter-skinned. (DVD Tr. 65). She advised

him to say he was driving but that he was in the wrong place at the

wrong time, urging that he did not owe the shooter anything. She said

she did not believe he knew what the shooter was going to do when he

saw that car. (DVD Tr. 64). They then spoke of what it meant to be an

accessory. (DVD Tr. 71-72). Appellant’s mother entered and told him

that Piru was watching her house. (DVD Tr. 77). His mother also told

him that Aubrey Toney’s female cousin worried that someone they

knew was talking to police. (DVD Tr. 81). His relatives then left the

room, and the detectives reentered.

At that point, appellant admitted that he had been driving the Durango

when Aubrey Toney fired at the Cadillac. Appellant explained that he -7-

left the game with Toney and they switched from the small black Dodge

Caliber that Toney was driving to the Durango because it was bigger.

(DVD Tr. 88, 97). He denied seeing the big gun in either car. (DVD Tr.

88, 98). Appellant said that he drove the cousin’s car because he had a

license. He insisted that he did not expect Aubrey Toney to shoot at a

car and that his only plan was to drive around while drinking and

smoking weed. (DVD Tr. 87-88, 111).

Appellant stated that they were about to stop at a house to buy weed

but the man they were meeting was not there yet so he turned around.

(DVD Tr. 106). He explained that while he was at the stop sign, Aubrey

Toney wrestled with the gun to bring it out of the window and then he

started shooting. (DVD Tr. 90-92, 122). Appellant said that he did not

have a “beef” with anyone and denied that there was talk of Aubrey

Toney’s feud in the car before the shooting. (DVD Tr. 108, 133).

When his relatives were permitted in the interrogation room again,

appellant made some phone calls. During one call, he talked about

someone telling everything to the police and said, “Tell every fucking

body, man. We gotta -- you all squeeze that mother fuckin’ rat.” (Tr.

158). Appellant was then booked into the jail. He and Aubrey Toney

were soon indicted for aggravated murder with a death specification for

the death of Thomas Repchic. Regarding Jacqueline Repchic, they

were indicted for attempted murder, felonious assault (deadly weapon), -8-

and felonious assault (serious physical harm). All four counts carried

firearm specifications.

Appellant’s case was tried to a jury. The state presented the testimony

of the police officers, detectives, and BCI agents involved in the case,

two neighbors from the area of the shooting, a 911 dispatcher, a

Shotspotters representative, two priests, the medical examiner, and

Aubrey Toney’s male and female cousins. The jury watched the DVD

of appellant’s time in the interrogation room, including his two

statements to police.

The defense presented expert testimony that disagreed with the BCI

agent’s testimony regarding matching extractor marks, as he opined

that it could not be concluded that the live cartridge and the fired

cartridge had been cycled through the same gun. (Tr. 592-593). It was

stipulated to the jury that appellant had been legally blind in his right

eye since 1994. (Tr. 602).

On April 4, 2012, the jury found appellant guilty of the murder, but not

the aggravated murder, of Thomas Repchic. The jury found appellant

guilty of all three counts involving Jacqueline Repchic and all four

firearm specifications. At sentencing, the state agreed that the two

counts of felonious assault committed against Jacqueline Repchic

would merge with each other. The state argued that the remaining -9-

felonious assault would not merge with the attempted murder of the

same victim because the evidence shows that Jacqueline was shot in

the leg and the shooter then continued to fire shots at the vehicle after it

drove past so that her life remained in danger after she was shot.

(Sent. Tr. 6-7). The defense countered that the remaining felonious

assault would merge with the attempted murder as there was no

separate animus for each offense against the same victim. (Sent. Tr.

9).

In a May 23, 2012 sentencing entry, the court imposed fifteen years to

life for murder plus three years for the attached firearm specification,

ten years for attempted murder plus three years for that attached

firearm specification, and eight years for one count of felonious assault

(merging one felonious assault into the other and merging both firearm

specifications attached to the felonious assaults into the other two

firearm specifications). The sentences were run consecutive for a total

sentence of 39 years to life.

Id. ¶ 3-21. On direct appeal, this Court sustained a single assignment of error, and

remanded the case to allow the trial court to merge the attempted murder and

remaining felonious assault charge committed against Jacqueline Repchic. Id. ¶ 105.

{¶3} In this appeal of his amended petition for postconviction relief, Appellant

first argues that he was denied both due process of law and his right to counsel when

his trial counsel failed to obtain the services of a neuropsychologist and/or -10-

neurologist to evaluate and provide evidence of his traumatic brain injury (“TBI”) and

residual conditions. Appellant contends that these constitutional deprivations

prevented him from challenging the knowing waiver of his right to counsel and right

against self-incrimination, and prohibited him from offering testimony regarding his

cognitive deficits at trial in order to explain his unwitting participation in the crimes.

Appellant further contends that he was denied due process of law when the trial court

denied the motion to suppress his confession, due to the state’s overreaching in

manipulating his mother and grandmother to convince him to admit his involvement in

the crimes.

{¶4} Next, Appellant contends that both his rights to counsel and due

process of law were violated when his trial counsel failed to recognize or challenge a

key piece of physical evidence underpinning his conviction. Appellant argues that his

right to due process was violated by the trial court’s decision to place a witness in

handcuffs during her testimony, and to allow the state to display to the jury numerous

firearms found at the residence of Appellant’s mother, including a .308 rifle, despite

the fact that the rifle actually used in the drive-by shooting was never found.

{¶5} Appellant also challenges the trial court’s dismissal of his amended

petition because the trial court allegedly relied on incorrect facts, and the court failed

to address his fourth ground for relief in its entirety. Finally, Appellant argues that the

cumulative effect of the foregoing errors and omissions demonstrate sufficient

prejudice to warrant a hearing before the trial court. -11-

{¶6} At oral argument, Appellant withdrew his seventh assignment of error,

which was based on the trial court’s denial of his postconviction motion for

appropriation of funds for a defense neurological expert to testify and refusal to stay

proceedings on the postconviction petition pending the results of this neurological

testing.

{¶7} Attached to the amended petition are: the affidavit of Kort Gatterdam, a

criminal defense attorney licensed in Ohio; the affidavit of Valerie Kunze, Assistant

Public Defender and co-counsel in this appeal; the affidavit of Appellant; the affidavits

of Rhys Cartwright-Jones and James Gentile, Appellant’s trial counsel; and the

affidavit of Barbara Nocho, Appellant’s grandmother. In addition, several

photographs are attached to the Gatterdam, Kunze, and Cartwright-Jones affidavits.

Medical records from 2004-2005 relating to injuries Appellant suffered in a 2004

automobile accident are attached to the amended petition, as well as a decision of

the Social Security Administration awarding Appellant supplemental social security in

2007.

Law

{¶8} Pursuant to R.C. 2953.21(A)(1)(a), a person convicted of a criminal

offense who asserts a violation of his or her constitutional rights may petition the

court that imposed sentence for appropriate relief. A postconviction petition is not an

appeal of the underlying matter; instead, it is a civil action that collaterally attacks a

criminal judgment. State v. Steffen, 70 Ohio St.3d 399, 410, 639 N.E.2d 67 (1994). -12-

State postconviction review is not a constitutionally protected right, even in capital

cases. Thus, the petitioner receives only those rights established by statute. Id.

{¶9} To prevail on a claim for postconviction relief, the petitioner must

demonstrate a denial or infringement of his rights in the proceedings resulting in his

conviction sufficient to render the conviction void or voidable under the Ohio or

United States Constitutions. R.C. 2953.21(A)(1). A postconviction petitioner bears

the initial burden of demonstrating in the petition, any supporting affidavits, and in the

trial record that there are “substantive grounds for relief.” R.C. 2953.21(C), State v.

Jackson, 64 Ohio St.2d 107, 111, 413 N.E.2d 819 (1980). A postconviction claim is

subject to dismissal without a hearing if the petitioner fails to support the claim with

evidentiary material setting forth sufficient operative facts to demonstrate substantive

grounds for relief. R.C. 2953.21(C) and (E). Hence, a criminal defendant challenging

his conviction via a petition for postconviction relief is not automatically entitled to a

hearing. Id., see, also, State v. Cole, 2 Ohio St.3d 112, 113, 443 N.E.2d 169 (1982).

{¶10} The purpose of the postconviction relief statute is to provide criminal

defendants with a clearly defined method by which they may raise claims of denial of

federal rights. State v. Calhoun, 86 Ohio St.3d 279, 281, 714 N.E.2d 905 (1999),

citing Young v. Ragen, 337 U.S. 235, 239, 69 S.Ct. 1073, 1074, 93 L.Ed. 1333

(1949). However, a postconviction petition is not a forum to relitigate issues that

could have been raised on direct appeal. See Steffen at 410; Cole, supra, at 113.

Accordingly, many claims are barred by res judicata. -13-

Under the doctrine of res judicata, a final judgment of conviction bars a

convicted defendant who was represented by counsel from raising or

resurrecting issues in collateral review that could have been raised and

fully litigated on direct appeal. State v. Reynolds (1997), 79 Ohio St.3d

158, 161, 679 N.E.2d 1131; State v. Perry (1967), 10 Ohio St.2d 175,

O.O.2d 189, 226 N.E.2d 104, paragraph nine of the syllabus. Where,

however, an alleged constitutional error is supported by evidence that is

de hors the record, res judicata will not bar the claim because it would

have been impossible to fully litigate the claim on direct appeal. State

v. Smith (1985), 125 Ohio App.3d 342, 348, 708 N.E.2d 739.

State v. Green, 7th Dist. No. 02 CA 35, 2003-Ohio-5142, at ¶ 21.

{¶11} “Evidence outside the record by itself, however, will not guarantee a

right to an evidentiary hearing. To overcome the res judicata bar, the evidence must

show that the petitioner could not have appealed the constitutional claim based on

the information in the original trial record.” State v. Combs, 100 Ohio App.3d 90, 97,

652 N.E.2d 205 (1st Dist.1994), citing Cole, syllabus.

{¶12} Further, evidence dehors the record must meet a minimum level of

cogency in support of the claim so as to require a hearing. Combs at 98, citing Cole

at 115. Accordingly, although in “reviewing a petition for postconviction relief * * *, a

trial court should give due deference to affidavits sworn to under oath and filed in

support of the petition, [it] may, in the sound exercise of discretion, judge the

credibility of the affidavits in determining whether to accept the affidavits as true -14-

statements of fact.” State v. Calhoun, 86 Ohio St.3d 279, 714 N.E.2d 905 (1999),

syllabus. Thus, “[t]he trial court may, under appropriate circumstances in

postconviction relief proceedings, deem affidavit testimony to lack credibility without

first observing or examining the affiant. That conclusion is supported by common

sense, the interests of eliminating delay and unnecessary expense, and furthering

the expeditious administration of justice.” Id. at 284.

Analysis

{¶13} Appellant’s first and fourth assignments of error are based on trial

counsel’s failure to request the appointment of a neurological expert to testify at the

hearing on the motion to suppress Appellant’s confession and during the guilt phase

of the trial. They also involve the trial court’s denial of the motion to suppress,

despite Appellant’s cognitive impairment and the state’s overreaching by

manipulating Appellant’s mother and grandmother into encouraging his confession.

For the purpose of judicial economy and clarity of analysis, the first and fourth

assignments of error will be addressed together.

Appellant’s cognitive impairments

{¶14} Appellant contends that a neuropsychologist and/or neurologist should

have been appointed to offer testimony regarding his TBI and dementia, allegedly

sustained as a result an automobile accident that occurred roughly six years prior to

the criminal offense at issue in this case. Following the accident, Appellant

underwent brain surgery. At the hearing on the motion to suppress Appellant’s

confession, trial counsel relied on the opinion of Appellant’s defense mitigation -15-

expert, Sandra McPherson, Ph.D., a psychologist, to evaluate and present evidence

as to the effect of Appellant’s TBI and dementia on his ability to understand his

Miranda warning and waive his right to self-incrimination.

{¶15} At the suppression hearing held on August 23, 2011, Dr. McPherson

provided the following testimony regarding the injuries suffered by Appellant in the

2004 automobile accident:

He suffered fairly severe and diffuse brain injury involving a number of

areas of function. He was treated for that and he was subsequently

evaluated over a period of about a year or so for his degree of

functional capacity. And those records also documented his 100

percent blindness in the right eye which was an injury occurring prior to

the auto accident at his age of 9. The records indicated that his

cognitive capacities were affected in various ways, including what the

examining doctors referred to as dementia or the ability to think

coherently and rationally, the ability to do those things that are

necessary to obtain a general equivalence degree which is a way a

person that has not completed high school can complete a high school

rating. He was judged to be incapable of taking that course and

achieving that status.

He seemed to have memory deficit but also what is known as memory

and sensory issues. He had symptoms that reflected the action of his

nervous system creating discomforts of various kinds, not because -16-

there was a tissue injury but because the nerves are providing

symptomatic outputs to him. It is part of the brain damage. He had

problems with gate, which over time did show some improvement.

(Suppression Hrg. Tr., pp. 57-58.)

{¶16} Dr. McPherson testified that she performed cognitive testing, including

the Wechsler Adult Intelligence Scale, fourth revision, which she opined was “a

standard state of the art instrument for mapping cognitive function for [a] variety of

purposes, but it is standardly used as part of assessing cognition in cases of brain

damage.” Id. at 60. She also performed the Bender Gestalt Test of Visual Motor

Ability and a Grisso Understanding and Appreciation of Miranda Rights Examination.

Id.

{¶17} According to Dr. McPherson’s testimony, Appellant was “not a quick

responder,” during her examination and needed some words in the Miranda waiver to

be defined, for instance, the word “entitle.” Id. at 62. She further testified that

Appellant frequently sought reassurance that he was answering her questions

correctly. Id. at 62-63.

{¶18} Despite McPherson’s concession on cross-examination that Appellant

clearly understood his right to remain silent, Id. at 63, she concluded that Appellant

did not understand the Miranda warning provided by the detectives who questioned

him. Referring to the videotaped confession, Dr. McPherson explained that it took

Appellant “many seconds” to respond to questions regarding his understanding of

each separate part of the Miranda warnings. She testified, “I suppose it is possible -17-

that he immediately understood the statement and just didn’t say anything for a long

period of time but I don’t think so.” Id. at 65.

{¶19} Next, Dr. McPherson observed that, although Appellant’s variability in

response time would be superior to a congenitally disabled individual, he was still

likely to be a yay-sayer, that is, a person who says he understands statements even

when he does not. Id. at 69-70. She further testified that Appellant’s ability to

understand the Miranda warnings would likely have been even more compromised

due to stress and his use of marijuana, alcohol and cough syrup in the days before

he was questioned. Id. at 73-74. Dr. McPherson concluded that “at the time that the

Miranda rights were done, based on the [videotape of the confession] that [she] saw,

he was not given any of the information and time to manage the information that

would have been necessary for him to come to that understanding.” Id. at 78-79.

{¶20} On cross-examination, Dr. McPherson acknowledged that Appellant

has previously been found competent to stand trial and conceded that her inquiry into

Appellant’s ability to understand the legal process was “within the same [analytical]

ballpark.” Id. at 81. Dr. McPherson further acknowledged that the car accident at

issue resulted in a criminal charge for cocaine possession, to which Appellant

ultimately pleaded guilty. Due to this conviction and the fact that Appellant

repeatedly violated his probation stemming from that conviction, Dr. McPherson

conceded that Appellant had considerable exposure to the legal process following his

brain injury. Id. at 84-85. Likewise, Dr. McPherson conceded that Appellant was -18-

sufficiently aware of his circumstances to deny any involvement in the crime during

the first forty minutes of the videotaped confession. Id. at 90-91.

First Assignment of Error

The trial court violated Kevin Agee's rights to counsel and due process

by summarily denying his claim that trial counsel were ineffective in

failing to obtain the services of a neuropsychologist and/or neurologist

to evaluate Kevin and present evidence regarding his traumatic brain

injury and the dementia it caused. This violated Kevin Agee's rights

under the Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.

{¶21} According to the U.S. Supreme Court, “the Sixth Amendment right to

counsel exists ‘in order to protect the fundamental right to a fair trial.’ ” Lockhart v.

Fretwell, 506 U.S. 364, 368 (1993), quoting Strickland v. Washington, 466 U.S. 668,

684 (1984), and citing Nix v. Whiteside, 475 U.S. 157 (1986); United States v. Cronic,

466 U.S. 648, 653 (1984), and United States v. Morrison, 449 U.S. 361 (1981). And

“[a]bsent some effect of challenged conduct on the reliability of the trial process, the

Sixth Amendment guarantee is generally not implicated.” Lockhart, 506 U.S. at 369,

quoting Cronic, 466 U.S. at 658.

{¶22} To prove a claim of ineffective assistance of counsel under Strickland,

the defendant must show that: (1) counsel's performance was deficient (falling below

an objective standard of reasonableness), and (2) the deficient performance

prejudiced the defense. See Strickland, 466 U.S. at 388; State v. Madrigal, 87 Ohio -19-

St.3d 378, 388-389 (2000); State v. Bradley, 42 Ohio St.3d 136 (1989), paragraph

two of the syllabus.

{¶23} A reviewing court must first determine whether trial counsel's

assistance was actually ineffective, in other words, whether counsel's performance

fell below an objective standard of reasonable advocacy or fell short of counsel's

basic duties to the client. See Bradley at 141. To prove deficient performance, the

defendant must show that counsel made errors which were so serious that counsel

was not acting in a manner guaranteed by the Sixth Amendment. Id. at 141-142.

{¶24} “Because of the difficulties inherent in making the evaluation, a court

must indulge a strong presumption that counsel's conduct falls within the wide range

of reasonable professional assistance; that is, the defendant must overcome the

presumption that, under the circumstances, the challenged action ‘might be

considered sound trial strategy.’ ” Strickland at 689, quoting Michel v. Louisiana, 350

U.S. 91, 101 (1955); accord Bradley, 42 Ohio St.3d at 142; State v. Thompson, 33

Ohio St.3d 1, 10 (1987); State v. Smith, 17 Ohio St.3d 98, 100 (1985); Vaughn v.

Maxwell, 2 Ohio St.2d 299, 301 (1965) (stating, “certainly there is a reasonable

inference that one licensed by the state to practice law and appointed by a court to

represent an accused did competently and properly represent such accused during

his trial.”)

{¶25} In State v. Mason, the Supreme Court of Ohio set forth a two-prong test

to determine whether an indigent defendant was entitled to funding for expert

assistance: -20-

Due process, as guaranteed by the Fifth and Fourteenth Amendments

to the United States Constitution and Section 16, Article I of the Ohio

Constitution, requires that an indigent criminal defendant be provided

funds to obtain expert assistance at state expense only where the trial

court finds, in the exercise of a sound discretion, that the defendant has

made a particularized showing (1) of a reasonable probability that the

requested expert would aid in his defense, and (2) that denial of the

requested expert assistance would result in an unfair trial.

State v. Mason, 82 Ohio St.3d 144, syllabus (1998).

{¶26} Appellant cites Powell v. Collins, 332 F.3d 376 (6th Cir.2003) in support

of his argument that trial counsels’ failure to request the appointment of a

neuropsychologist and/or neurologist constituted ineffective assistance of counsel. In

Powell, the Sixth Circuit held that an Ohio trial court’s failure to appoint a neurological

expert for a petitioner with organic brain damage violated due process. The state trial

court in that case appointed a clinical psychologist to assess Powell’s competency to

stand trial, and also to provide testimony on behalf of the defense during the guilt and

mitigation phases of the trial. Although the Powell Court found harmless error with

respect to the guilt phase of the trial (Powell had confessed his intention to rape and

kill the victim to a witness), the Court concluded that the psychologist’s testimony at

the mitigation phase fell short of the constitutional requirements.

{¶27} However, the Sixth Circuit’s decision in Powell was based on the

psychologist’s admission that she “was not equipped to conduct the appropriate -21-

examination required for her to set forth all of the facts or information the jury should

have considered at mitigation.” Id. at 395. The Powell Court wrote:

Dr. Schmidtgoessling began by acknowledging that “mitigation is a

much broader question than addressed to date ... and if the Court

wants a full understanding, I feel it is important to use the techniques to

answer those questions.” (J.A. at 1026.) She then went on to explain

that neither she nor any other staff member at the court's psychiatric

clinic were qualified to conduct the type of testing and evaluation that

was required to diagnose Petitioner with organic brain damage for the

purpose of showing the effect of that factor at mitigation. Dr.

Schmidtgoessling indicated that such testing would require a referral to

a comprehensive medical facility and specialists in the appropriate

fields-precisely the type of assistance Petitioner sought but was denied.

Accordingly, under these facts, unlike with the guilt phase of Petitioner's

trial, the testimony of an independent psychiatrist─particularly one who

was qualified to conduct the appropriate testing of which Dr.

Schmidtgoessling spoke─may have provided facts and information for

the jury to consider at mitigation, which may have led to a different

recommendation by the jury at sentencing. We therefore believe that

the lack of the expert assistance which Petitioner sought, and which he

was entitled under Ake [v. Oklahoma, 470 U.S. 68 (1985)], “had a

substantial and injurious effect or influence in determining the jury's” -22-

decision at sentencing, see Brecht, 507 U.S. at 637, 113 S.Ct. 1710,

such that we are left in “grave doubt” as to the harmlessness of this

error, thereby requiring that relief be granted to Petitioner on this issue.

See O'Neal, 513 U.S. at 437, 115 S.Ct. 992.

Id. at 395-396. No similar admission was made in the present case, and, therefore,

Powell is not helpful in our analysis.

{¶28} In order to overcome the res judicata bar to his ineffective assistance of

counsel claim, Appellant offered the affidavit of Kort Gatterdam, a criminal defense

attorney licensed in Ohio. Gatterdam opines that trial counsel was deficient due to

their failure to obtain the services of a neuropsychologist and/or neurologist to

evaluate Appellant’s TBI and dementia, and the combined effect of these on his

ability to knowingly waive his rights to counsel and against self-incrimination.

According to Gatterdam, a criminal defense lawyer and former public defender,

Appellant’s medical records establish cognitive impairments that required the expert

testimony of a neuropsychologist or neurologist. Gatterdam Aff., ¶ 7-8. Gatterdam

explained that a neurologist could have performed an MRI and used other techniques

to “see what was actually going on in [Appellant’s] brain at or near the time of his

arrest.” Gatterdam Aff., ¶ 8.

{¶29} The trial court concluded that the Gatterdam affidavit offered no new

evidence regarding the need for a neurological expert. Gatterdam’s affidavit merely

offered his opinion on the ultimate question: whether trial counsel’s performance was

deficient and whether Appellant was prejudiced. The trial court stated that the -23-

argument Appellant did not understand his Miranda warning was absurd, based on a

colloquy between Appellant and the trial court on August 25, 2011, two days after the

suppression hearing, where Appellant quoted Albert Einstein. Appellant provided the

following testimony at the August 25, 2011 pre-trial conference:

When I first went to jail, I really didn't know the situation I was in and

how deep. * * * I was blessed enough to have a family member [Agee’s

uncle] actually in the pod when I got there. He already knows my

situation, everything, my brain situation.

The first couple weeks I was in there, I was very frustrated, and he had

* * * me read a quote, and he had me write it down and put it in my cell,

and I read it every day. It's by Albert Einstein. * * * [“A] problem can

never be solved at the same level of intelligence in which it was

created.[”] When I finally figured out what my uncle was trying to tell

me, he started having me try to understand the constitution[.]

(8/25/11 Tr., pp. 5-6.)

{¶30} In fact, Ohio appellate districts have consistently concluded that an

affidavit by a legal expert does not constitute cogent evidence dehors the record

sufficient to overcome procedural default. State v. Group, 7th Dist. No. 10 MA 21,

2011-Ohio-6422, ¶ 86-87; State v. Hill, 1st Dist. No. C961052 (Nov. 21, 1997)

(“Attorney's affidavits explaining prevailing norms do not constitute evidence dehors

the record and are akin to a notarized legal argument.”); State v. Davis, 5th Dist. No.

2008-CA-16, 2008-Ohio-6841, at ¶ 161-162 (quoting Hill and advocating that instead -24-

of a countervailing attorney opinion, a more objective test for attorney ineffectiveness

is that set forth in Strickland); State v. Franklin, 2d Dist. No. 19041, 2002-Ohio-2370,

at ¶ 12 (“the affidavit of an attorney giving an opinion based on facts in the record

does not constitute evidence outside the record, but merely legal argument[.]”)

Accord State v. Jones, 11th Dist. No. 2000-A-0083, 2002-Ohio-2074; State v.

Scudder, 131 Ohio App.3d 470, 722 N.E.2d 1054 (10th Dist.1998); State v. Lawson,

103 Ohio App.3d 307, 659 N.E.2d 362 (12th Dist.1995). Accordingly, the trial court

correctly concluded that Appellant failed to overcome the procedural bar.

{¶31} Even assuming that the Gatterdam affidavit constituted valid evidence

dehors the record, Appellant failed to offer sufficient operative facts to show that trial

counsels’ failure to request the appointment of a neuropsychologist and/or

neurologist resulted in an unfair trial. There is no evidence in the record before us to

show that Appellant’s cognitive impairments affected his ability to understand the

Miranda waiver. On the contrary, the record establishes that Appellant was aware of

both the effect and the consequences of his confession.

{¶32} After waving his right to counsel and his right against self-incrimination,

Appellant had the presence of mind to deny any involvement in the crime. (DVD Tr.,

p. 13.) When asked why .308 ammunition and a baseball cap identified by

eyewitnesses at the crime scene as being worn by one of the assailants was found at

his mother’s house, Appellant explained that he and Toney were close friends, and

that he let Toney “chill” at the Garfield address. (DVD Tr., pp. 15-16, 21.) He further

explained that Toney often left guns and ammunition at the Garfield address because -25-

he considered it a safe place. (DVD Tr., pp. 56, 60-61.) When asked about

eyewitness testimony placing him in the vehicle at the crime scene, Appellant stated

that he frequently drove around town with Toney, and the eyewitnesses were

probably mistaken as to the day they saw them together. (DVD Tr., pp. 18, 32.)

{¶33} Appellant told police that, when he learned about the crime on the local

news, he was disappointed that he did not have any information regarding the crime,

because there was a reward offered. (DVD Tr., p. 31.) He did not realize Toney was

the shooter until the following day, when friends told him that OB drove a Cadillac

that was the same color and model as the vehicle targeted in the drive-by shooting.

(DVD Tr., p. 33.) When Detective Sergeant Daryl Martin told Appellant that the

Durango was being swept for DNA and prints and asked how Appellant would

explain the existence of his fingerprints on the steering wheel, Appellant responded

that he drove the Durango a few weeks earlier. (DVD Tr., p. 58.)

{¶34} Appellant’s grandmother spoke to him outside of the presence of the

detectives. She informed Appellant that he had been caught on camera, and that he

should tell the truth. (DVD Tr., p. 63.) She also informed him that eyewitnesses

placed him at the scene of the crime. (DVD Tr., p. 66.) Appellant told his

grandmother that he would be looking at “football numbers * * * [b]ig numbers” for jail

time. (DVD Tr., p. 67.) When his grandmother pressed him to confess, Appellant

told her that he was not being stubborn, he was “thinking.” (DVD Tr., p. 70.) He

observed that he was going to get the same number of years whether he was the

driver or the shooter. Id. -26-

{¶35} When Appellant spoke to his mother, he told her that he would receive

a high bond and suggested that his girlfriend, whose mother had just died, might

have enough money from her mother’s estate to provide his bail. (DVD Tr., p. 78.)

Agee also told his mother that someone “in the click” was talking, because the

detectives had information that eyewitnesses could not have provided. (DVD Tr., p.

83.)

{¶36} All of the foregoing evidence reveals that Appellant was processing

information quite clearly during the police interrogation. He not only provided

succinct excuses for the presence of evidence implicating him in the crime, but also

recognized the degree of punishment he would face if convicted, as well as the high

bond that would likely be assigned. Of equal import, Appellant had entered a guilty

plea to charges of drug possession after his automobile accident, so he was also

familiar with the state justice system.

{¶37} Appellant has failed to offer evidence dehors the record in support of

his right to counsel and due process claims regarding the appointment of a

neuropsychologist and/or neurologist, which could have been raised on direct appeal.

In the alternative, Appellant has failed to offer evidentiary material setting forth

sufficient operative facts to demonstrate a reasonable probability that a neurological

expert would have aided his defense, and that the denial of expert assistance

resulted in an unfair trial. Accordingly, Appellant’s first assignment of error based on

claims of ineffective assistance of counsel is overruled.

Fourth Assignment of Error -27-

The trial court abused its discretion and violated Kevin Agee's rights

under the Fifth and Fourteenth Amendments to the United States

Constitution, and Section 16, Article I of the Ohio Constitution by failing

to grant relief on the fourth ground for relief, i.e., that he was denied a

fair trial when the court overruled the motion to suppress his statement

and admitted the statement at trial.

{¶38} In his fourth assignment of error, Appellant asserts that his confession

was not freely and voluntarily obtained, both because the expert testimony offered

regarding his cognitive difficulties fell short of the constitutional mandate and due to

the state overreaching involving his mother and grandmother in the police interview.

{¶39} Appellant’s fourth assignment of error corresponds to his fourth ground

for relief in the amended petition. Appellant’s original petition set forth only three

grounds for relief. The trial court did not address Appellant’s fourth ground in the

June 17, 2014 judgment entry. It appears that the trial court reviewed the original

petition, rather than the amended petition. The June 17th judgment entry reads, in

pertinent part, “Petitioner asserts three grounds for relief in his brief.” (6/17/14 J.E.,

p. 1.) It is important to note that the state did not respond to the original petition

before the amended petition was filed. Accordingly, the trial court must have

reviewed the state’s motion for judgment on the pleadings, as it was the only

responsive pleading filed by the state and it contained argument addressing the

fourth ground for relief. -28-

{¶40} In order to overcome the res judicata bar, Appellant offers the affidavit

of Barbara Nocho, his grandmother, who was present with his mother at the police

station during his interrogation. The affidavit, reads, in pertinent part:

7. On at least one occasion, Detective Martin left the interrogation

room and was pacing up and down the hallway in front of me and

[Appellant’s mother] saying, “if only [Appellant] would admit to being the

driver it would help him with the prosecutor.” He said that they would

go easier on him, since they had a video showing [Appellant] in a cap

and had an eyewitness.

8. Detective Martin asked me a number of times to get [Appellant] to

admit being the driver. He then let me go into the interrogation room

with [Appellant]. I regret to this day that I did not tell [Appellant] to get

an attorney. Because I believed what Detective Martin had told me, I

encouraged [Appellant] to talk to the police. I told [Appellant] to tell

them that he was the driver, not only because it was the truth, but also

because Detective Martin told [Appellant’s mother] and me that it would

help with the prosecutor and they would go easier on [Appellant] if he

did talk.

(Nocho Aff., ¶ 7-8.)

{¶41} The Nocho affidavit directly contradicts the testimony offered by

Detective Martin at the suppression hearing:

Q Then did you talk to the grandmother outside of the interview room? -29-

A Yes.

Q Did you urge her to go in there and give him some advice?

A No.

Q No?

Q The information that she gave [Appellant], that they had picked his

name out of a lineup -- that they picked your picture out of a lineup, that

you told people that you were involved, and that they have you on

camera, did you tell her those things?

A I never said anything about a lineup and I never said they picked him

out on camera.

Q What did you tell her?

A I told her there was video surveillance in the area and we had

information that he was the driver, and it was seen fleeing the area.

Q The video surveillance that is in the area does show the Durango

leaving the area; correct?

A Correct.

Q It does not -- you are unable to see who is in the car at that point? -30-

Q So you think you were factually accurate when you told her that?

A Told her what?

Q That there is a video showing [Appellant] in the car?

A I didn't say that.

Q What did you say?

A I said that there was video of the vehicle fleeing the scene and that

we had people telling us he was the driver of the vehicle.

Q Okay. That's apparently not what she told him; correct?

(Suppression Hrg. Tr., pp. 47-48.) Nocho did not testify at the suppression hearing.

{¶42} It is well established that “[a] suspect's waiver of his right not to

incriminate himself, and his subsequent confession, must be made voluntarily,

knowingly, and intelligently.” State v. Shakoor, 7th Dist. No. 01 CA 121, 2003-Ohio-

5140, ¶ 18, citing Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694

(1966).

{¶43} “In determining whether a pretrial statement is involuntary, a court

‘should consider the totality of the circumstances, including the age, mentality, and

prior criminal experience of the accused; the length, intensity, and frequency of -31-

interrogation; the existence of physical deprivation or mistreatment; and the existence

of threat or inducement.’ ” State v. Brown, 100 Ohio St.3d 51, 2003-Ohio-5059, 796

N.E.2d 506, ¶ 13, quoting State v. Edwards, 49 Ohio St.2d 31, 358 N.E.2d 1051

(1976), paragraph two of the syllabus, overruled on other grounds, 438 U.S. 911, 98

S.Ct. 3147, 57 L.Ed.2d 1155 (1978).

{¶44} In Shakoor, this Court recognized that an “officer’s suggestion of

leniency is not enough to invalidate a confession, but is merely one factor which

bears on whether the confession was voluntary.” Id. at ¶ 23, citing State v. Cooey,

46 Ohio St.3d 20, 544 N.E.2d 895 (1989). Accordingly, “[w]hen a police officer

promises that a defendant's cooperation will be considered in resolving the case, or

that a confession will be helpful in reducing the charges, a resulting confession is not

automatically invalidated.” Shakoor at ¶ 23, citing State v. Loza, 71 Ohio St.3d 61,

641 N.E.2d 1082 (1994), certiorari denied, 514 U.S. 1120, 115 S.Ct. 1983, 131

L.Ed.2d 871 (1995). For example, the Supreme Court of Ohio found that a

confession was voluntary where the police offered the defendant “help” if he

confessed. See Shakoor at ¶ 23, citing State v. Chase, 55 Ohio St.2d 237, 378

N.E.2d 1064 (1978).

{¶45} Appellant provides no explanation for the failure to call Nocho as a

witness at the suppression hearing. Further, the Nocho affidavit is directly at odds

with Detective Martin’s testimony at that hearing. Even if the trial court gave credit to

Nocho’s statements, it is permissible for the police to suggest that “help” will be -32-

provided to a suspect if he confesses his involvement in a crime, and this does not

affect the knowing and voluntary nature of the confession.

{¶46} The second prong of Appellant’s suppression argument fails as well.

As addressed in the analysis of the first assignment of error, Appellant has failed to

demonstrate that the failure to appoint neuropsychologist and/or neurologist resulted

in an unfair trial.

{¶47} Finally, the trial court's failure to review the entire transcript of

proceedings or address each ground for relief before denying a postconviction

petition does not necessarily constitute reversible error. See State v. Davis, 133

Ohio App.3d 511, 518 (8th Dist.1999), citing State v. Broom, 8th Dist. No. 72581,

1998 WL 230425 (May 7, 1998). For instance, in State v. McNeill, the Ninth District

specifically concluded that a review of record is not required every time a

postconviction petition is filed, writing: “[A] review of record, however, is not

necessitated by the mere filing of a petition for post-conviction relief. If the petition is

baseless on its face, the trial court need not review the record to establish that

dismissal is warranted.” State v. McNeill, 137 Ohio App.3d 34, 40 (9th Dist.2000),

citing State v. Braxton, 6th Dist. No. L-98-1032, 1998 WL 351877, at *1 (June 19,

1998). We have likewise concluded that “if the petition is baseless on its face, the

trial court may dismiss it without reviewing the record, and without waiting for a

response from either the petitioner or the state.” State v. Tribble, 7th Dist. No. 08 MA

145, 2009 Ohio 2651, ¶ 15, citing McNeill. -33-

{¶48} Appellant has failed to offer evidentiary material setting forth sufficient

operative facts to demonstrate that his confession was neither knowing nor voluntary.

Appellant’s fourth assignment of error regarding the trial court’s denial of his motion

to suppress is overruled.

Second Assignment of Error

The trial court violated Kevin Agee's rights to counsel and due process

by summarily denying his claim that counsel were ineffective in failing:

1) to recognize before trial that the bullet depicted in State's Exhibit 103

is not the bullet identified and admitted as State's Exhibit 113 and to

present the defense accordingly; and 2) to recognize this discrepancy

during trial, bring it to the court's and the jury's attention when Kevin

Agee discovered it, and take other appropriate action. This violated

Kevin Agee's rights under the Fifth, Sixth, and Fourteenth Amendments

to the United States Constitution, and Sections 10 and 16, Article I of

the Ohio Constitution.

{¶49} At trial, the state offered two pieces of evidence: an unfired .308

cartridge (Exhibit 113), which the state’s expert testified had been cycled through a

rifle and bore extraction marks that matched extraction marks on a fired cartridge

found at the crime scene; and a photo of the unfired .308 cartridge that the state

attested was found on a bookshelf at the residence of Appellant’s mother on Garfield

Street. (Exhibit 103). -34-

{¶50} On direct appeal, this Court referred to the house on Garfield Street as

Appellant’s residence. In fact, it was his mother’s residence. Appellant stated during

his police interview that he did not live at the Garfield address but did spend a lot of

time there. At the time, Appellant was living with his grandmother, who was

recuperating from surgery. (DVD Tr., p. 4.)

{¶51} In his second assignment of error, Appellant contends that the unfired

cartridge depicted in Exhibit 103 is not Exhibit 113. In other words, the actual

cartridge, upon which ballistic tests were conducted by both parties, was not the

same cartridge that was found at his mother’s residence. In order to avoid the

procedural bar, Appellant offers his own affidavit and the affidavits of attorneys

Cartwright-Jones and Gentile to establish that he discovered the alleged discrepancy

during the trial testimony of the defense’s ballistics expert.

{¶52} Despite Appellant’s purported discovery, trial counsel did not raise the

issue at trial. Instead, Cartwright-Jones used his camera phone to photograph

Exhibit 113 (the .308 bullet) lying on top of Exhibit 103 (the purported photograph of

Exhibit 113 found at the residence of Appellant’s mother). This is attached as Exhibit

D-A to the Cartwright-Jones affidavit. Cartwright-Jones attached the photograph

taken at trial in support of Appellant’s motion for new trial, which was filed on June 4,

2012, the same day as Appellant’s direct appeal. (Cartwright-Jones Aff., ¶ 5.) The

motion for new trial and the response brief cannot be located by the Clerk of Courts.

In this assignment of error, Appellant also relies on additional photographs of rounds

taken by Assistant Public Defender Valerie Kunze, which include a photograph of the -35-

bottom of the Exhibit 113, which reads, “R R 308 WIN”, see Exhibit B-5 to Kunze

affidavit, and a photograph of the bottom of a 7.62 cartridge, which reads “WA 80

7.62 R1M1,” see Exhibit B-4 to Kunze affidavit.

{¶53} Although Appellant contends that he discovered the alleged

discrepancy during trial, it is apparent that inquiries were made by Appellant to

Detective Martin regarding Exhibit 113 at the August, 2011 suppression hearing:

Q All right. Now, this .308 round that you say was found in this

residence -- correct?

Q Does it say .308 round on it?

Q Winchester .308?

A I don't recall if it was a Winchester but I know it said .308.

Q Have you looked at that round recently?

A Not recently, no.

Q Does it say Winchester 7.62?

A I don't recall.

Q But you think it is a .308? -36-

A Right.

(Suppression Hrg. Tr., pp. 44-45.)

{¶54} Appellant relies on the Gatterdam affidavit to establish that trial

counsel’s failure to seek exclusion of Exhibit 113, move for a mistrial, or submit the

matter to the defense expert who could testify about the alleged discrepancy

constituted ineffective assistance of counsel. (Gatterdam Aff., ¶ 18.) Gatterdam

opines that Exhibits 103 and 113 were the sole means to connect Appellant to the

weapon used at the crime scene. Had Exhibit 113 been excluded, the weapons and

ammunition from Appellant’s mother’s residence would likely have been excluded

from evidence.

{¶55} Although the motion for new trial was filed on the same day as the

notice of direct appeal, June 4, 2012, Appellant could have raised his ineffective

assistance of counsel claim on direct appeal. App.R. 4(A) requires that the notice of

appeal must be filed within thirty days of the final entry. However, in a criminal case

where a timely motion for new trial is filed pursuant to Crim. R.33 for a reason other

than newly discovered evidence, the time for filing a notice of appeal from the

judgment or final order in question begins to run as to all parties when the trial court

enters an order resolving the motion for new trial.

{¶56} In the alternative, Appellant could have amended his notice of appeal to

include the trial court’s July 17, 2012 denial of the motion for new trial pursuant to

App.R. 3(F). A party may amend a notice of appeal without leave if the time to

appeal from the order that was the subject of the initial notice of appeal has not yet -37-

lapsed under App.R. 4. Thereafter, the court of appeals, within its discretion and

upon such terms as are just, may allow the amendment of a notice of appeal, so long

as the amendment does not seek an appeal from a trial court order beyond the time

requirements of App.R. 4.

{¶57} According to his affidavit, Cartwright-Jones’ photograph of Exhibits 103

and 113 was attached to the motion for new trial. Therefore, it would have been part

of the record on direct appeal, and the issue could have been raised on direct

appeal. Hence, res judicata bars the second ground for relief.

{¶58} Even assuming that the affidavits and photographs can amount to new

evidence, the two trial exhibits and the various additional photographs do not

constitute evidentiary material setting forth sufficient operative facts to demonstrate

that Exhibit 103 is not a photograph of Exhibit 113. Appellant contends that the

round in the photograph appears shiny with a copper head, whereas Exhibit 113

appears dull and scratched. However, the alleged distinctions in coloration appear to

be the result of the photographic process. In fact, there is no evidence to suggest

that Exhibit 103 does not depict Exhibit 113. Moreover, although it was suggested at

the hearing on the motion to suppress that the bullet found at Appellant’s mother’s

house was a 7.62 round, and there is a photograph of 7.62 round attached to the

Kunze affidavit, there is no evidence in the record or in the affidavits, explaining the

existence of this round at the home of Appellant’s mother.

{¶59} As Appellant could have raised his constitutional challenge to trial

counsels’ failure to raise the evidentiary issue on direct appeal, his second ground for -38-

relief is barred by res judicata. Assuming that Appellant has provided new evidence

overcoming the procedural bar, Appellant has failed to set forth sufficient operative

facts to demonstrate that the round depicted in Exhibit 103 is not the round marked

Exhibit 113. Accordingly, Appellant’s second assignment of error is without merit and

is overruled.

Third Assignment of Error:

The trial court violated Kevin Agee's right to due process by summarily

denying his claim that he was deprived of a fundamentally fair trial by

the combined effect of: 1) the court's ordering witness Clinkscale to be

placed in handcuffs and to testify while having two deputy sheriffs

standing beside her; 2) the court's allowing the State to parade before

the jury numerous guns found in Kevin's house, and to stack them on

counsel's table in plain view of the jury, even though they were not

relevant to the charged offenses; and 3) the court's allowing the State

to use as demonstrative evidence a .308 rifle during closing argument.

This violated Kevin Agee's rights under the Sixth and Fourteenth

Amendments to the United States Constitution, and Sections 10 and

16, Article I of the Ohio Constitution.

{¶60} Agee challenged the introduction of the guns at trial on direct appeal.

Agee’s challenge rested on the Ohio Rules of Evidence; he raised no constitutional

challenge on direct appeal. This Court provided the following analysis: -39-

Appellant sets forth four assignments of error, the first of which

provides:

“The trial court erred when it admitted irrelevant and prejudicial

evidence and thus denied Kevin Agee his rights to due process and a

fair trial.” (Citations omitted.)

Under this assignment of error, appellant contests the admission of a

.308 rifle used as demonstrative evidence. He also contests the

admission of guns, ammunition, and drugs found in the search of his

residence, stating that the only relevant evidence introduced from the

search was the unfired .308 cartridge. He urges that the admission of

this evidence was irrelevant in violation of Evid.R. 401 and 402, any

probative value was substantially outweighed by the danger of

prejudice and confusion of the issues in violation of Evid.R. 403, and

improper other acts evidence was used to suggest he was a dangerous

criminal in violation of Evid.R. 404(B).

Relevant evidence is that which has any tendency to make the

existence of any fact that is of consequence to the determination of the

action more probable or less probable than it would be without the

evidence. Evid.R. 401. Relevant evidence is admissible unless

prohibited by another rule, statute, or the constitution. Evid.R. 402.

Evidence which is not relevant is not admissible. Evid.R. 402. -40-

Although relevant, evidence is not admissible if its probative value is

substantially outweighed by the danger of unfair prejudice, of confusion

of the issues, or of misleading the jury. Evid.R. 403(A).

We begin with the State Exhibit 134, a .308 rifle the state used as

demonstrative evidence. This was a rifle purchased during a controlled

buy in Portage County. As .308 rifles are not common, Portage County

contacted Youngstown regarding the Repchic shooting. A Youngstown

police officer testified that he went to Portage County to test-fire the

weapon and retrieved it later for retesting by BCI. (Tr. 163, 166).

A BCI agent had concluded that the Portage County weapon was not

the gun used to fire the cartridge found at the scene. (Tr. 315). He

decided to conduct his own test-fire of the Portage County .308 rifle

with the exact brand of ammunition used in the shooting to see if the

officer’s use of a different brand of ammunition affected the breech

pattern. (Tr. 315). The second test-fire also came back as negative for

a match. (Tr. 316).

As the rifle was not related to this shooting, appellant urges that it was

irrelevant and prejudicial. Initially, we note that no objection was

entered when the .308 was first introduced during the testimony of the

officer who test-fired the weapon. (Tr. 162-166). By the time an

objection was entered during the BCI agent’s introduction of the .308, -41-

the item had already been introduced without objection. (Tr. 314).

Error may not be predicated upon a ruling that admits evidence unless

the party opposing the admission timely objects. Evid.R. 103(A)(1).

We note that the matter was not raised by the defense in the motion in

limine. The court did address the matter in its judgment entry thereon

(as it was raised in the state’s response), but a motion in limine or ruling

thereon does not preserve an objection.

Regardless, demonstrative evidence is admissible if it satisfies the

general standard of relevance set forth in Evid.R. 401, it is substantially

similar to the object or occurrence that it is intended to represent, and it

is not violative of Evid.R. 403. State v. Jones, 135 Ohio St.3d 10, 2012-

Ohio-5677, 984 N.E.2d 948, ¶ 82. The admission of demonstrative

evidence is within the trial court’s sound discretion. State v. Herring, 94

Ohio St.3d 246, 255, 762 N.E.2d 940 (2002); State v. Palmer, 80 Ohio

St.3d 543, 564-566, 687 N.E.2d 685 (1997).

Thus, the Supreme Court has permitted the state to introduce a .22

caliber revolver as a demonstrative exhibit where the jury was

instructed that the gun was similar to but not the actual gun used in the

murder and was advised that it was being used for the limited purpose

to show that the method of firing entailed pulling back the hammer to

cock the gun. Id. at 565-566 (with an instruction that the energy

needed to pull the trigger may be different). The Court stated that the -42-

handgun was relevant to intent, purpose, prior calculation design, and

absence of mistake or accident. Id. at 566, upholding this court’s

decision in State v. Palmer, 7th Dist. No. 89-B-28 (Aug. 29, 1996)

(where we held that state can introduce a handgun as a “model” to

show that the type of gun used in the murder required a certain process

to be fired to refute a claim that the gun accidentally fired).

Here, a .308 firearm was used to shoot the victims. A fired .308

cartridge was found in the middle of the street where witnesses put the

vehicle from which the shots were fired. An unfired .308 cartridge was

found in appellant’s house, which had extractor marks said to match

those on the fired cartridge.

In maintaining his defense that he was not aware of the plan to shoot at

Piru or OB, appellant insisted that he did not see the gun until Aubrey

Toney pulled it out just prior to shooting. (DVD Tr. 105). The state

wanted to rebut this claim by showing how big a .308 rifle is in order to

suggest that appellant had to have seen the gun being transferred from

the small car into the Durango or had to see it in the front of the

Durango.

Testimony established that a .308 rifle is a rare weapon to encounter on

the streets; it was said to be shoulder-fired, high-powered, and at least

semi-automatic. (Tr. 152-153, 310, 312, 318, 512). A detective who -43-

owned a .308 rifle described the ammunition as big caliber or big bore

that is very loud and very powerful with a lot of powder and a big

“blowup” and which was mostly used in light machine guns, big hunting

rifles, or police sniper rifles. (Tr. 152-153). Witnesses testified to a

large amount of gun smoke around the Durango during the shooting.

The BCI agent recited the FBI-generated list of firearms that could fire

the cartridge, and the type in State Exhibit 34 was on the list. (Tr. 313,

316). He stated that all of the rifles on the list eject the cartridge and

reload another upon firing. (Tr. 318-319). He noted that the cartridge

showed fluted chamber marks which occur only with a semiautomatic or

above and not with a bolt action or manual ejection firearm. (Tr. 310).

Moreover, appellant admitted that Aubrey Toney previously had a “big

ass” .308 at appellant’s house and that Aubrey Toney left the .308

cartridge there. (DVD Tr. 16, 35). He indicated that Aubrey Toney was

“clacking” the metal parts of his gun one night, which suggests this is

when the unfired cartridge was cycled through the gun.

Appellant also variously described the gun as “pretty big,” “big ass,” and

“pretty fucking long.” (DVD Tr. 60). Appellant stated that he did not

know that “big motherfucker” was wedged in the front of the Durango

when he got in. (DVD Tr. 88). He also stated that Aubrey Toney had to

wrestle with the gun to bring it up to the car window. (DVD Tr. 122). In -44-

addition, he mentioned that Toney rested it all the way out between the

mirror and the door.

The trial court could reasonably find that State Exhibit 134 was

substantially similar to the .308 rifle used in the shooting. In order to

show just how big a .308 rifle is and thus help rebut appellant’s

defense, the state could properly admit a .308 rifle. The state wanted to

show that appellant knew the gun was in the vehicle and that they

switched from a small car to a large SUV specifically to utilize the large

gun in their pursuit of Piru and OB. The state notes that the laughter

heard by witnesses coming from the Durango as it drove down the road

just before the shooting combined with appellant’s statement that

Aubrey Toney had to wrestle with the gun to get it out the window

suggests that they were laughing about Aubrey Toney’s struggle with

the weapon.

We have viewed the .308 rifle identified as State Exhibit 134. It is

nearly three and a half feet in length. Besides being very long, it is

bulky. The butt of the stock is wide. Even wider is the distance from

the bottom of the grip to the top of the barrel, which appears to span

more than 8 inches. Upon seeing such a representation of a .308 rifle,

a person can tend to disbelieve appellant’s claim that he did not notice

the gun in the front of the Durango until Aubrey Toney pulled it out

seconds before shooting or that he did not see Aubrey Toney load the -45-

rifle into the Durango after he borrowed it. Thus, it was relevant. See,

e.g., Jones, 135 Ohio St.3d 10 at ¶ 84-96.

There is no indication that the introduction of the .308 rifle as

demonstrative evidence would confuse or mislead the jury. See, e.g.,

Jones, 135 Ohio St.3d 10 at ¶ 110. A police officer, a detective, and a

BCI agent all testified that State Exhibit 134 was not the actual .308 rifle

used in the shooting. (Tr. 167, 315-316, 513). And, the court gave a

demonstrative evidence instruction formulated by both sides, which

explained that demonstrative evidence is an object, picture, model, or

other device intended to clarify or qualify facts for the jury, that such

evidence is merely an aid in understanding certain facts, and that it is

up to the jury to decide what weight to give such evidence. (Tr. 560,

651-652). Also notable here is that this particular piece of

demonstrative evidence was actually scientifically excluded as the

murder weapon by the state’s witnesses, lessening any confusion and

adding to background investigation relevance.

Finally, evidence against a defendant is meant to be prejudicial; it is

only unfair prejudice that concerns the court and only unfair prejudice

that can substantially outweigh the probative value. See Evid.R.

403(A). The probative value of the demonstrative evidence here was

high. We find that the trial judge could reasonably conclude that the

probative value of the demonstrative evidence was not substantially -46-

outweighed by the danger of unfair prejudice. We refuse to substitute

our judgment for that of the trial court on this matter as the decision was

not unreasonable, arbitrary, or unconscionable. See, e.g., Jones, 135

Ohio St.3d 10 at ¶82; Herring, 94 Ohio St.3d at 255.

We now turn to the introduction of the evidence relating to guns and

drugs (besides the unfired .308 cartridge for which no argument is or

could be made). An officer testified that, during the search of

appellant’s residence at 537 Garfield Street, he discovered the following

items in the following locations: from a cigar box, a pipe, suspected

cocaine, and live and spent cartridges; from beside the living room

couch, a 12-gauge shotgun; from the garage rafters, two magazines;

from the living room hutch, two bullet proof vests; from the top of the

refrigerator, a .9mm; from the attic, a .30 caliber, a .9mm, a 12-gauge

shotgun, and a bag containing ammunition and a pistol magazine. (Tr.

244-245).

The officer identified photographs depicting this evidence, and the

evidence was then itself admitted. (Tr. 246-257). A detective testified

that he recovered the following items from the kitchen during the

search: crack cocaine, a digital scale, and black Ziploc baggies. (Tr.

457). He also recovered marijuana on appellant’s person during the

arrest. (Tr. 458). -47-

Objections were entered during the testimony of these two witnesses.

(Tr. 244, 456, 458). As the officer began to testify about these items,

the defense objected by referring back to the mid-trial motion in limine

which had been overruled. (Tr. 244). The motion in limine asked to

prohibit the admission of firearms, ammunition, and cocaine recovered

in the search and not used in the murder. The motion raised relevance

and degree of prejudice and argued that the state was trying to convict

him by association with nefarious objects. (03/28/12 Motion In Limine).

The state responded that the police were told that appellant’s house is

where Aubrey Toney and appellant kept their guns and a .308 cartridge

was in fact found there. The state argued that the evidence of guns

and ammunition is relevant to appellant being the provider of the

murder weapon, besides allowing his house to be used for its storage.

As for the drugs, the state responded that the discovery of 8 packets of

crack cocaine individually wrapped for sale on appellant’s table put into

question appellant’s claim that he drove to Philadelphia Avenue to meet

with a marijuana dealer so that they could drive around and smoke

marijuana.

The court’s judgment entry denying the motion in limine concluded that

the opening statement of the defense raised the issue of appellant

looking for drugs, thus opening the door for the state to rebut that story

with the introduction of the cocaine. (See Tr. 37). As to the guns, the -48-

court agreed that they could be admitted to rebut appellant’s claims that

he was not part of any dispute, that he had no idea what was going on,

and that he was merely a witness with no intention of harming anyone.

(03/29/12 J.E.).

Appellant urges that since he was not charged with offenses related to

these items, they were irrelevant, overly prejudicial, and improper other

acts evidence. “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.” Evid.R. 404(B). 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. Id.

It can also be used to respond to arguments already raised, such as to

bolster credibility after an attack thereon or to delve into a line of inquiry

already raised. See, e.g., State v. Conway, 109 Ohio St.3d 412, 2006-

Ohio-2815, 848 N.E.2d 810, ¶ 75-78. The state contends that the

evidence from the search was not used to show appellant’s character

but was used to outline the methods of investigation to establish that

the police conducted a thorough investigation. The state also notes

that the relevancy test does not require the evidence to directly prove

an element of the offense. See State v. Tapscott, 7th Dist. No.

11MA26, 2012-Ohio-4213, ¶ 23. -49-

As to the bulletproof vests, appellant told police that Aubrey Toney wore

a bulletproof vest for protection, that he left it at appellant’s house, and

that he sometimes forgot to wear it when they got high. (DVD Tr. 114).

Appellant stated that Aubrey Toney had a feud with Piru and OB and

insisted that he was not involved in the feud. As Toney was said to

wear a vest as protection against the feud, the fact that two vests were

found in appellant’s house is pertinent to the question of whether

appellant was affected by or involved in the feud. It is not unfairly

prejudicial or improper other acts evidence. It confirms a statement of

appellant while also rebutting a key claim of his defense and constitutes

evidence of knowledge of the feud and even preparation for

involvement in that feud.

As for the guns and ammunition found in appellant’s house, these items

were not alleged to be used in the shooting. The Supreme Court has

suggested that other firearms are not admissible merely to show a

defendant had access to guns where those guns are not said to be the

murder weapon. State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio-

2961, 911 N.E.2d 242, ¶ 107. That Court did find some merit to the

state’s contention that a cache of weapons found in a suspect’s home

can be introduced to show familiarity with weapons in a case where the

defendant claimed that he accidentally pulled the trigger on a different

weapon. Id. at ¶ 110. The Court alternatively stated that the admission -50-

would have been harmless due to overwhelming evidence of

appellant’s guilt. Id. at ¶ 111 (a death penalty case).

Here, the guns and ammunition were found in appellant’s house where

a .308 cartridge was also discovered. Appellant admitted that he was

the driver during the shooting with a .308 and admitted that said rifle

and its ammunition had previously been in his house. The ammunition

magazines found in the rafters of appellant’s garage bolstered the

credibility of Aubrey Toney’s male cousin, who told police that the

murder weapon was likely in the rafters of appellant’s garage. That

witness told police that Aubrey Toney and appellant both kept guns at

appellant’s house. (Tr. 488-489). The guns and related evidence tend

to show that appellant supplied or at least stored the murder weapon in

which case he would be more aware of its removal prior to the shooting

rather than a mere innocent driver.

Moreover, appellant admitted that his house was Aubrey Toney’s “safe

spot” when he was “beefing.” (DVD Tr. 56). He had a security system

set up on a monitor showing four views of the exterior of his house. (Tr.

491). Notably, the shotgun lying in the open right next to appellant’s

living room couch, the same room containing Aubrey Toney’s

bulletproof vest, the security monitors, and the unfired .308 cartridge

(with extractor marks matching those made by the murder weapon),

could be seen as evidence that appellant was involved in the feud at -51-

issue due to his friendship with Aubrey Toney. And, the choosing of

this gun over the other available weapons could show intent to kill as

opposed to scare, especially considering how unwieldy the gun is and

in combination with the switching to a larger vehicle prior to the

shooting.

Although alone each of these theories may be insufficient support for

the admission of the guns and ammunition, using a combination of all of

the elements existing here, we conclude that the guns and ammunition

found in the same house as the .308 cartridge were relevant and

admissible to rebut appellant’s defense, which revolved a claim that he

was not involved in the shooter's feud with Piru and OB and to show

that he had a plan in place to protect himself against the feud and/or

further it. The probative value of this evidence was not substantially

outweighed by dangers of unfair prejudice, especially considering that

appellant had admitted that the .308 was present in his house before

the shooting (and that Aubrey Toney even utilized it in his house in a

manner that produced a “clacking” of metal sound).

The drugs and paraphernalia found in appellant’s house tend to rebut

appellant’s claim that he was driving around Philadelphia Avenue, not in

search of the red Cadillac, but in order to meet a marijuana dealer

whom he allegedly needed Aubrey Toney to find for him because he

could not find any himself. (DVD Tr. 101-102). Notably, Aubrey -52-

Toney’s cousin testified that he originally met appellant one night, when

he and Aubrey Toney went to the house on Garfield to buy marijuana

off appellant. (Tr. 379-380).

Appellant insisted to police that his point in driving around with Aubrey

Toney was to drink, do pills that he already possessed, find marijuana

from Toney’s dealer, and then return to appellant’s house to watch a

game together. That drugs and tools for not only drug-using but also

for drug-distributing were found in his house is relevant and probative to

an evaluation of the credibility of his defensive claims.

Appellant made these claims in his statement to police, which was

introduced by the state at trial. These claims were also made in the

defense’s opening statement. The Supreme Court has concluded that

after the defense raised the subject of defendant's drug use in opening

statements, “the topic became open to all relevant inquiry in the

discretion of the trial court”. State v. Kamel, 12 Ohio St.3d 306, 312,

466 N.E.2d 860 (1984). Under the particular facts of this case, we

overrule the argument regarding the admission of the drugs discovered

during the search of appellant’s residence. This assignment of error is

overruled.

Agee, supra, at ¶ 22-55.

{¶61} In order to overcome the res judicata bar, Appellant offers the affidavits

of attorneys Cartwright-Jones and Gentile, which state that the guns were placed on -53-

the state’s table after identification in close proximity to the jury. (Cartwright-Jones

Aff., ¶ 4.) Cartwright-Jones also states that the assistant prosecutor “slowly walked

from the table to the witness stand, displaying the weapon to the jury as he passed

the jury box,” and that these actions occurred despite “strenuous, repeated

objections” from the defense. Id. The Cartwright-Jones and Gentile affidavits also

aver that Tequi Clinkscale was placed in handcuffs and flanked by two Deputy

Sheriff’s during her testimony. Id. at ¶ 3.

{¶62} As stated above, “[a] postconviction petition may also be dismissed

without a hearing where the claims are barred by res judicata.” West, supra, at ¶ 24.

Res judicata bars any claim or defense that was raised or could have been raised in

an earlier proceeding. See Perry, 10 Ohio St.2d at 180-181. Further, “[t]he doctrine

of res judicata excludes subsequent actions or postconviction petitions involving the

same legal theory of recovery as the previous action or petition as well as claims

which could have been presented in the first action or postconviction petition.” State

v. Sawyer, 8th Dist. No. 91946, 2009-Ohio-2391, ¶ 19, citing Cole, at syllabus.

{¶63} In regard to Appellant’s current argument, the record contains the trial

court's statement, made outside of the hearing of the jury, concerning the State's use

of the firearms found inside Appellant’s mother’s house and the .308 rifle used for

demonstrative purposes only:

On the record. I just want the record to reflect that the guns that were

seized at the residence in this matter were only being displayed to the

jury while they were being identified, and that the gun that was testified -54-

to was only displayed to the jury while the person from BCI testified

about it when it was taken from Portage County to establish the chain of

custody. It was not taken out of the box by the officer; correct?

(Trial Tr., p. 426.) Both parties agreed that this statement portrayed an accurate

summary of events. The jury was later instructed on the use of demonstrative

evidence. (Trial Tr., pp. 651-652.) Thus, the trial record contains evidence that the

state displayed multiple firearms to the jury and used the .308 rifle for demonstrative

purposes. Appellant has failed to offer relevant evidence found outside of the record

to overcome res judicata.

{¶64} This Court has previously concluded that the .308 caliber rifle (Exhibit

134) was properly introduced as demonstrative evidence, and the drugs, guns, and

ammunition found in the same house as the .308 cartridge were relevant and

admissible to rebut Appellant’s defense. There is no reason why a constitutional

challenge could and should not have been raised on direct appeal. Even the

Cartwright-Jones affidavit clearly states that there were strenuous and repeated

objections during trial regarding the display of the guns.

{¶65} Finally, following Tequi Clinkscale's testimony, defense moved for a

mistrial because she was handcuffed in front of the jury. (Trial Tr., p. 109.) The trial

court denied the motion. (Trial Tr., p. 111.) In support, the trial court made the

following findings on the record:

The Court, first of all, will note for the record that not only was the

witness evasive in her answers, as the record will reflect, the Court -55-

recessed, allowing her to refresh her memory, and she came back and

was evasive again, as well as raised her voice in speaking to the Court

and counsel. The Court will not permit any witness or anyone to disrupt

proceedings in this courtroom. The Court took the appropriate actions

necessary to ensure the safety of everyone present in the courtroom.

Therefore, the Defendant's motion is overruled.

The Court will, however, issue an instruction to the jury, which I believe

has been reviewed by the parties, ensuring that the jury is ensured that

they are not to take -- any actions taken against the witness, that they

are not to hold them against the Defendant.

The Court is also going to issue instructions to the jury about other

witnesses that may appear in handcuffs due to their lack of -- lack of

willingness to testify in this matter about statements previously given to

the police.

(Trial Tr., pp. 110-112.) The trial court then properly instructed the jury that its

actions, taken against Clinkscale, were not to be held against Defendant:

Next, ladies and gentlemen, yesterday you observed the Court having

to unfortunately order the deputies to handcuff a witness. The Court

informs the jury that after the witness began her testimony and was only

giving evasive answers, the Court ordered the witness to review her

videotaped statement to refresh her memory. The Court then explained -56-

to the witness the importance of testifying accurately and completely.

The Court cautioned the witness not to be disrespectful or disrupt these

proceedings. Upon her return to the Court, the witness continued to

answer the questions evasively and began to disrupt the Court in an

attempt to engage the Court in acrimonious colloquy.

It is the responsibility of the Court to maintain the proper decorum at all

times and to maintain the safety of everyone in the courtroom. The

Court instructs the jury that any action taken by the Court against that

witness is, in no way, to be held against the defense or the Defendant

Kevin Agee.

The Court is further going to instruct you that there may be other

witnesses that prove to be difficult, and that this action or similar actions

may have to be taken against those witnesses. I will once again give

you an instruction that if that happens, you are in no way to infer any

actions taken by the Court to be held against the Defendant or the

defense.

(Trial Tr., pp. 117-119.)

{¶66} Evidence that Tequi Clinkscale was placed in handcuffs during her

testimony is clearly contained within the trial record. Yet again, Appellant has failed

to offer relevant evidence found outside of the record to overcome res judicata.

Therefore, Appellant's third claim for relief is entirely barred by res judicata, because

he has failed to offer new evidence and had the ability to have raised his -57-

constitutional claims on direct appeal. Appellant’s third assignment of error is not

well-taken and is overruled.

Fifth Assignment of Error

The trial court violated Kevin Agee's statutory and due process rights to

meaningful consideration of the claims raised in his amended petition

when it disposed of the first three grounds for relief on the basis of

factual findings that contradict the record, and when it overlooked the

fourth ground for relief.

{¶67} In Appellant’s fifth assignment of error, he argues that he was denied

meaningful review of his petition because the trial court relied on errant facts to

dismiss his first three assignments of error, and failed entirely to address his fourth

assignment of error, which contained a challenge to the trial court’s ruling on the

motion to suppress. The trial court’s failure to address the fourth assignment of error,

predicated on the trial court’s denial of the motion to suppress, has been previously

addressed.

{¶68} As to his claim that the trial court made certain misstatements of fact in

deciding Appellant’s petition, he appears to be correct. With respect to the first

ground for relief, the trial court stated Appellant argued in his amended petition that

Appellant remembered an Einstein quotation because his uncle was in jail at the

same time as Appellant. This argument was not made in the amended petition. The

trial court concluded that “[Appellant] only remembered [the Einstein quote] because

his uncle – who was in jail with him – showed him the quote is unrealistic and -58-

unbelievable.” (6/17/14 J.E., p. 2.) Appellant testified at the August 25, 2011 hearing

that he posted the quotation in his cell and read it every day. Consequently, the trial

court’s findings with respect to the Einstein quotation appear to be made in error.

{¶69} With respect to the second ground for relief, Appellant relies on the trial

court’s observation that the alleged discrepancy between Exhibits 103 and 113 “was

litigated and briefed prior to trial.” (6/17/14 J.E., p. 3.) In fact, the alleged

discrepancy was raised for the first time in the motion for new trial. Accordingly, the

trial court mistakenly concluded that the matter had been resolved before trial.

{¶70} With respect to the third ground for relief, Appellant relies upon the trial

court’s statement that “the weapons found at Agee’s house and the .308 rifle were

not displayed in plain sight of the jury. The .308 rifle was not taken out of the box

and displayed to the jury.” (6/17/14 J.E., pp. 3-4.) This, too, contradicts the trial

record.

{¶71} Although all of the foregoing statements by the trial court in the June

17, 2014 judgment entry were made in error, this does not impact our determination

that Appellant failed to support the claims in his amended petition with evidentiary

material setting forth sufficient operative facts to demonstrate substantive grounds for

relief, as we have fully discussed in our Opinion in this matter. None of these

misstatements aids Appellant’s cause or impacts on the law to be applied. Despite

these minor errors, the trial court reached the correct conclusion regarding

Appellant’s claims. Accordingly, Appellant’s fifth assignment of error is without merit

and is overruled. -59-

Sixth Assignment of Error

The trial court abused its discretion in denying Kevin Agee's amended

petition because, even if none of the grounds for relief warrant relief

individually, the cumulative effect of the errors and omissions asserted

in the amended petition was prejudicial and denied Kevin's rights under

the Fifth, Sixth, and Fourteenth Amendments to the United States

Constitution, and Article I, Sections 10 and 16 of the Ohio Constitution.

{¶72} The cumulative error doctrine provides that a conviction can be

reversed where the cumulative effect of trial errors deprives the defendant of the

constitutional right to a fair trial, even though each of the instances of error does not

individually constitute grounds for reversal. See State v. Garner, 74 Ohio St.3d 49,

64 (1995). The doctrine is inapplicable where Appellant fails to establish multiple

instances of error. See Id. Further, this Court has stated that the cumulative error

doctrine is inapplicable where cumulative errors are harmless beyond a reasonable

doubt. See State v. Bell, 7th Dist. No. 06 MA 189, 2008-Ohio-3959, ¶ 180, quoting

State v. Anderson, 7th Dist. No. 03 MA 252, 2006-Ohio-4618, at ¶ 80. And “[t]he

Supreme Court [of Ohio] has held that it is not enough to simply ‘intone the phrase

cumulative error.’ ” State v. Young, 7th Dist. No. 07 MA 120, 2008-Ohio-5046, ¶ 65,

quoting State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4843, ¶ 197. “Thus, where

an appellant raises the doctrine without further analysis, the assignment of error has

been held to lack substance.” Young, supra, at ¶ 65, citing State v. Sapp, 105 Ohio

St.3d 104, 2004-Ohio-7008 ¶ 103. -60-

{¶73} Appellant contends that, “[h]ere, the multiple instances of counsel’s

deficient performance involving [Appellant’s] TBI and the discrepancy between

Exhibits 103 and 113, the State’s overreaching in obtaining [Appellant’s] statement,

and the prejudicial impact of the court’s rulings described in the third ground

combined to deprive [Appellant] of the fair trial the Constitution promised him.”

(Appellant’s Brf., p. 32.) Appellant has invoked the phrase “cumulative error,” but

provides no argument in support of his claim. Further, only one of Appellant’s

assignments have revealed even harmless error. Therefore, the cumulative error

doctrine clearly does not apply. Accordingly, Appellant’s sixth assignment of error is

not well taken and is overruled.

Conclusion

{¶74} Appellant has failed to offer evidence dehors the record in support of

his right to counsel and due process claims regarding the appointment of a

neuropsychologist and/or neurologist, which could have been raised on direct appeal.

In the alternative, Appellant has failed to offer evidentiary material setting forth

sufficient operative facts to demonstrate a reasonable probability that a neurological

expert would have aided his defense, and that the denial of expert assistance

resulted in an unfair trial. Accordingly, Appellant’s first assignment of error

predicated upon ineffective assistance of counsel is overruled.

{¶75} Appellant has likewise failed to offer evidentiary material setting forth

sufficient operative facts to demonstrate that his confession was neither knowing nor -61-

voluntary. Accordingly, Appellant’s fourth assignment of error based on the trial

court’s judgment entry denying the motion to suppress is overruled.

{¶76} With respect to the alleged discrepancy of the evidence, Appellant

could have raised his constitutional challenge to his trial counsel’s failure to raise the

evidentiary issue on direct appeal, and, as a consequence, his second ground for

relief is barred by res judicata. Even assuming that Appellant provided new evidence

to overcome the procedural bar, he has failed to cite evidentiary material setting forth

sufficient operative facts to demonstrate that the round depicted in Exhibit 103 is not

the round marked Exhibit 113. Therefore, his second assignment of error is

{¶77} Similarly, Appellant’s third claim for relief, based on the admission of

the guns at trial, display of the rifle during the state’s closing argument, and the

handcuffing of a witness during her testimony, is barred by res judicata. Appellant

has failed to offer new evidence and it is evident his constitutional claims could have

been raised on direct appeal. Thus, Appellant’s third assignment of error is

{¶78} Appellant’s fifth assignment of error is based upon numerous minor

factual errors that do not impact the decision in this matter and the failure of the trial

court to analyze his fourth claim for relief in the judgment entry denying his amended

postconviction petition. Despite the factual errors and the omission, the trial court,

nonetheless, reached the correct conclusion regarding Appellant’s claims. As a

consequence, his fifth assignment of error is overruled. -62-

{¶79} Finally, as we find no error has occurred that even arguably rises to the

level of harmless error, Appellant’s sixth assignment of error predicated upon

cumulative error is overruled. Accordingly, the judgment of the trial court is hereby

affirmed.

Donofrio, P.J., concurs.

DeGenaro, J., concurs.