The Ohio Supreme Court today affirmed the death sentence of a man convicted of killing his girlfriend and his friend who helped him dispose of the girlfriend’s body.

A Butler County jury convicted Calvin McKelton of the 2008 murder of Margaret “Missy” Allen, a criminal defense attorney who previously represented McKelton, and the 2009 aggravated murder of Germaine “Mick” Evans. McKelton received the death penalty when convicted of the additional specification of murdering Evans to prevent his testimony in a criminal proceeding.

Justice Judith Ann Lanzinger wrote the majority opinion holding the evidence showed that McKelton was properly convicted of murdering a friend who helped him cover up a murder and that the aggravating circumstances supporting the death penalty outweighed the mitigating circumstances beyond a reasonable doubt.

In a dissenting opinion, Justice William M. O’Neill wrote that McKelton’s death sentence should be dismissed and that he should receive a new mitigation hearing because his attorneys did not hire a mitigation expert to present McKelton’s case for sentencing him to life in prison.

Allen’s Body Found in Cincinnati
McKelton was living with Allen and her two nieces in her Butler County home in 2008, and the nieces testified the couple had physically violent arguments. Allen also kept a handwritten notebook and a computer document that chronicled her physical abuse. In July 2008, Allen was found dead on the east side of Cincinnati. A piece of plastic resembling a shower-curtain liner was around her thighs and a bag of counterfeit drugs lay near her body. A coroner’s report found that she died from strangulation, and when police searched her home, they found a long piece of weed-cutter cord on the floor. The shower curtain was on a hallway floor with no sign of a liner.

Fairfield police interviewed McKelton, who refused to answer most of their questions, and they took fingerprints, DNA samples, and fingernail scrapings. The DNA samples were not consistent with the DNA collected from Allen’s fingernails.

Months later, police learned that Evans was a possible eyewitness. A friend of Evans testified that Evans told him he was at Allen’s house when he heard her and McKelton fighting in another room and then saw McKelton choking Allen. When she became unresponsive, the men tried to stage a robbery scene and set fire to the house. The two then wrapped up Allen’s body and drove to a wooded area to dispose of it.

Evans’s friend told police that McKelton gave Evans 20 ounces of cocaine, worth $20,000 to $40,000. Seven months after Allen’s death a detective called Evans’s sister, Crystal, and told her that police wanted to talk to her brother about Allen’s death. The detective did not know that McKelton was dating and living with Crystal Evans at the time. McKelton was in the home when she relayed the message to her brother. A week later Mick Evans’s body was found in a city park, and a coroner’s report determined that he was killed with a single gunshot wound to the back of the head, possibly two or three days earlier.

Police did not find a murder weapon, but one of Allen’s nieces testified she saw McKelton with a gun that closely matched what investigators believed was used to shoot Evans. Police gathered cellphone records from McKelton, Crystal Evans, and friends of McKelton. Crystal Evans avoided McKelton for several weeks, according to the investigation, but their relationship resumed and she gave birth to his son in 2010. She visited him in jail as he awaited trial, and they exchanged frequent phone calls and letters in which they discussed his alibi that he was home with her when her brother was murdered.

Informants Testify McKelton Admitted Killing Pair
Along with friends of Mick Evans, three informants charged with other offenses testified that McKelton admitted to the murders. One said McKelton told him that he choked Allen in a heated argument and did not mean to kill her. The informant testified McKelton said he had to kill Evans because he was the only one who could link him to Allen’s death. Another informant testified that McKelton needed money and  tried to convince him that he could eliminate witnesses for him. The informant described how McKelton said he killed Evans to prevent his testimony.

The defense did not present any witnesses during the first phase of the trial, and the jury convicted McKelton of all but the charge of intimidation of a witness.

After the mitigation stage and the jury recommendation, the trial court sentenced McKelton to death for the aggravated murder of Evans, 15 years to life in prison for the murder of Allen, and 25 years for the remaining convictions. McKelton appealed the ruling to the Ohio Supreme Court, raising 21 claims challenging his convictions and sentence.

McKelton Claims His Attorneys Were Ineffective
Among the claims, McKelton argued that his rights under the Ohio and U.S. constitutions were violated because he was deprived of a fair trial. He maintained that those violations included the state’s nondisclosure of eight witnesses until the evening before the trial, which left his defense attorneys unprepared for effective cross-examination. He also argued that his counsel provided ineffective assistance during the trial and mitigation stages.

The prosecution originally sought the trial court’s permission not to disclose the names of 23 witnesses, but agreed to disclose all but eight, seven of whom testified. The prosecutor maintained the disclosure would subject the witnesses or others to potential harm, and told the trial court that McKelton was convicted of intimidating a witness in 2003. In a jailhouse letter to Crystal Evans, McKelton suggested they post the witness list in a public place. The state also reported an associate of McKelton’s told McKelton he had plans to make every witness disappear or recant their testimony against him before the trial began, and one of the witnesses whose name was disclosed had been recently shot at by one of McKelton’s associates.

Justice Lanzinger explained that Ohio court rules allow a prosecutor to refuse to disclose the names of witnesses to the defense if there is “reasonable, articulable grounds to believe that disclosure will compromise the safety of a witness, victim, or third party, or subject them to intimidation or coercion.” She noted the trial court followed the rules that allow the delay of disclosure until the trial begins and that the judge did not abuse his discretion when permitting the prosecution to withhold the names.

McKelton’s constitutional rights were not violated because of the impact the late disclosure had on his attorney’s ability to investigate and prepare for his defense, Justice Lanzinger wrote, observing that the defense did receive the names the day before trial and did cross-examine all witnesses.

McKelton’s several issues with trial counsel included the trial judge’s refusal to allow his court-appointed counsel to be replaced. Initially McKelton retained Richard Goldberg, who informed the court he lacked experience in trying capital murder cases. Goldberg asked for permission to remain as an attorney on the case after the trial judge appointed John G. Howard and Melynda Cook as counsel. Seven months after appointment, the three lawyers sought to withdraw, and McKelton asked the court to remove them because of “irreconcilable differences, lawyer misconduct, conflict of interest, misrepresentation, personal conflict and a complete lack of communication.”

Goldberg was permitted to withdraw because of a conflict of interest, but Cook and Howard stayed on and explained to the judge that McKelton did not trust them and was no longer cooperating in the preparation of his defense. McKelton claims the two tried to pressure him into accepting a plea bargain.

Justice Lanzinger explained that it was the duty of McKelton’s lawyers to honestly appraise his case and suggest a plea bargain if they thought it was appropriate. Their advice in this regard to McKelton did not prove his claims that they were biased against him or conspiring with the prosecution on a conviction.

McKelton also objected to the lack of necessary experts to prepare his defense including a mitigation specialist. His lawyers did hire an investigator who worked for more than 100 hours on the case, and Justice Lanzinger wrote that not hiring other specialists did not indicate the attorneys were unprepared for the trial. The Court also rejected McKelton’s claims that his lawyers were ineffective during the trial by failing to object to the selection of jurors and by not fully explaining the terms of a plea agreement offered to him by the prosecution. Justice Lanzinger stated McKelton undermined his argument when he told the judge in a pretrial hearing that he rejected the offer because he wanted an opportunity to prove his innocence.

At the mitigation hearing, McKelton made an unsworn statement, and three witnesses testified about his difficult childhood and how he cares for his own children. Some of his children told the jury they wanted to have him continue to be part of their lives. While Justice Lanzinger agreed that it was unusual for the defense not to present any expert witnesses at the mitigation hearing, she explained that the attorneys had discretion to present their case and that their choice not to use experts does not mean they were deficient in their performance.

“In any event, McKelton cannot show that he was prejudiced by the alleged error,” she wrote. “He does not identify any specific information that additional experts would have uncovered or explain why that information would have prompted the jury to recommend a life sentence.”

Court Weighs Evidence Independently
The Court rejected claims by McKelton that the state’s case against him did not justify a conviction because there was no eyewitness testimony, no weapon found from Evans’s murder and no forensic evidence linking him to Evans’s death. He argued the state relied mostly on jailhouse informants. Justice Lanzinger wrote that the informants’ testimony was bolstered by other evidence that made their statements credible.

As part of his mitigation, McKelton and his family members described a troubled youth that led him to start dealing drugs as a teenager. He told the court and jury that while in prison earlier he earned a GED, and that he hopes to attend college. He apologized for “all the wrongdoings” and everybody he hurt, and asked the jury to consider sparing his life so he could be a part of his children’s lives.

McKelton’s expression of remorse failed to specifically mention the victims of his crime, Allen and Evans, and while his difficult background provided significant weight in considering overturning the death sentence, Justice Lanzinger stated, it was not enough.

Chief Justice Maureen O’Connor and Justices Terrence O’Donnell, Sharon L. Kennedy, and Judith L. French joined the majority opinion.

Justice Paul E. Pfeifer wrote a separate opinion in which he joined the majority in affirming the determination of McKelton’s guilt. However, he also joined Justice O’Neill’s dissent regarding the inadequacy of trial counsel in the sentencing phase.

Dissent Objects to Death Penalty
Justice O’Neill pointed to his dissent in the Court’s 2013 State v. Wogenstahl decision to express his objections to Ohio’s death penalty, and found that McKelton’s lawyers were ineffective in presenting McKelton’s mitigation defense. He noted the two appointed death-penalty certified attorneys, Howard and Cook, hardly met with McKelton and that the one investigator hired primarily met with Goldberg who was allowed to withdraw from the case.

Justice O’Neill explained that a trained mitigation expert would have been able to present documentary evidence to support McKelton’s request to spare his life, and the lawyers should have hired a mental health expert to explain the psychological impact of his abusive childhood.

He disagreed with the majority’s conclusion that the trial counsel may have reasonably decided not to use the experts for strategic reasons.

“But on this record as a whole, I must respectfully disagree. I believe it is much more likely that counsel unreasonably decided not to engage any qualified person as a matter of expedience,” he wrote.

He asserted the change of attorneys and their lack of preparation deprived McKelton of his constitutional rights to a fair trial.

“Throwing McKelton into the fray with attorneys he had barely met was profoundly unfair: their task was to provide the jury with a detailed story of the person that they represented. I am convinced that Calvin McKelton’s attorneys were insufficiently prepared to go forward at the mitigation hearing due to a professionally inadequate investigation prior to trial and the unexpected scramble of taking over the work of another seasoned trial attorney,” he concluded. “For these reasons, I have no faith in the jury’s recommended sentence.”

2010-2198. State v. McKelton, Slip Opinion No. 2016-Ohio-5735.

View oral argument video of this case.

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