State v. Neyland (139 Ohio St. 3d 353, 2014)

Kennedy, J.

{¶ 1} This is an appeal as of right by defendant-appellant, Calvin Neyland Jr. A jury convicted him of the aggravated murders of Douglas Smith and Thomas Lazar, and it recommended the sentence of death on each count of murder. The trial court accepted those recommendations and sentenced Neyland accordingly.

I. Trial Evidence

A. State’s case

{¶ 2} Evidence introduced at trial showed that Neyland began working as a truck driver for Liberty Transportation Company in Perrysburg, Ohio, in July 2006.

{¶ 3} Beginning in March 2007, Neyland was cited several times for falsifying his driver’s logs and for committing other driving violations. On July 24, 2007, Liberty notified Neyland in writing of these infractions and informed him that any further violations for completing a false document would result in his termination from the company.

{¶ 4} Doug Smith was the branch manager for Liberty Transportation in Perrysburg. During the spring of 2007, Smith noticed a change in Neyland’s attitude and performance. Smith was receiving complaints from Liberty’s customers about Neyland, and some of them did not want Neyland to return to their businesses. Neyland and Smith had a meeting about one of the complaints. The meeting resulted in a bizarre ending with Neyland seated in a lawn chair outside Smith’s office, repeatedly phoning him, while Smith remained in his office with the doors locked.

{¶ 5} During late July or early August 2007, Anthony Arent, the shipping manager at nearby Great Lakes Windows, overheard Neyland on the phone with Smith. Arent testified that Neyland was “very uncooperative” during the conversation and that he resorted to profanity, calling Smith “a bitch.” William Lynch Jr., a truck driver for Liberty, talked to Neyland about a week before the murders. Neyland, who was upset with Smith, warned, “If they mess with me, I’ll just shoot them.”

{¶ 6} On August 1, 2007, Neyland was involved in a vehicle accident and was determined to be at fault. Following this incident, officials at Liberty decided to terminate Neyland’s employment.

{¶ 7} Smith scheduled a meeting with Neyland at Smith’s office at 8:00 a.m. on August 8, 2007, to terminate Neyland’s employment. Thomas Lazar, the safety director for Liberty, planned to attend this meeting because Smith did not want to be alone with Neyland when he terminated him. Lazar also planned to remove the Department of Transportation (“DOT”) sticker that was attached to the door of Neyland’s tractor-trailer.

{¶ 8} On August 8, Neyland delayed the meeting three times before he finally agreed to meet with Smith and Lazar at 3:00 p.m. During one conversation to reschedule the meeting, Neyland told Smith that if Smith was going to have somebody at the meeting, then he was going to bring somebody, too.

{¶ 9} At approximately 3:00 p.m., Neyland arrived outside Liberty’s warehouse in his tractor. Neyland was wearing a dark Hawaiian shirt. It is unclear whether Neyland met with either Lazar or Smith when he first arrived. In any event, Neyland shot Lazar four times in the back and once in the arm in the yard outside the building. Neyland then entered Liberty’s warehouse with a gun in his hand and walked up the stairway to Smith’s office.

{¶ 10} Smith called 9-1-1 and reported that he heard shots being fired. He told the 9-1-1 operator that he needed to get downstairs to see what was going on. On the recording of the call, two gunshots can be heard and a voice says, “crawl bitch.” There is then the sound of a struggle, and Smith repeatedly calls for help. A final shot was then fired. Neyland had killed Smith in his office with a single gunshot to the head.

{¶ 11} Afterwards, Neyland left the warehouse with the gun in his hand. He walked to his tractor and drove away.

{¶ 12} Police officers arriving at the scene found Lazar lying on the lawn in front of Liberty’s warehouse. He died at the scene shortly thereafter. Officers also went upstairs and found Smith’s dead body lying on the floor near his desk. A description of Neyland’s tractor, along with a partial license-plate number, was broadcast to law-enforcement agencies.

{¶ 13} Investigators collected shell casings outside the warehouse and around Smith’s office. They found one bullet hole that went through Smith’s chair and into the wall and another bullet hole in the wall behind the chair. Investigators also found paperwork about Neyland’s performance, including a driver’s vehicle-inspection report, in the middle of the desk.

{¶ 14} After the shooting, Neyland drove to the Silver Blue Motel in Monroe County, Michigan, where he was staying. During the late afternoon of August 8, 2007, police officers spotted Neyland’s tractor parked outside the motel. Officers watched the tractor until the Monroe County Special Weapons and Tactics (“SWAT”) team arrived.

{¶ 15} Around 6:00 p.m., Neyland came out of his motel room, got into the tractor, and drove the short distance to the motel office. The SWAT team then approached the vehicle and arrested Neyland. As he was being placed on the ground, Neyland said, “I was going to turn myself in.” Neyland also said, “I want the letter. There’s a letter in my truck. It’s to my brother. It’s my last will.” When asked if he had any weapons before being handcuffed, Neyland said, “No, the gun is in the truck by the door.”

{¶ 16} Neyland was placed in a police cruiser following his arrest. Sgt. Keith Williamson of the Ohio Bureau of Criminal Identification and Investigation (“BCI & I”) Crime Scene Unit, obtained a gunshot-residue sample from Neyland’s hands.

{¶ 17} After obtaining a search warrant, the police seized evidence from Neyland’s tractor. A Ruger 9 mm handgun and magazine inside a holster, another weapon magazine, and a dark Hawaiian shirt were found between the driver’s and the passenger’s seats. Sgt. Williamson also obtained a gunshot-residue sample from the steering wheel.

{¶ 18} During the search of the tractor, the police collected an envelope addressed to Phyllis Gregory with Neyland’s return address. Inside the envelope were three default-payment notices that had been sent to Neyland for four storage units. On each of the notices, Neyland had handwritten some variation of the following statement: “This may be my last will and testament. You may have these items. I will no longer be able to pay; these are paid til 8/1/07.” Two of the statements were signed by Neyland. On the reverse side of one notice, Neyland wrote that additional items were located at the Silver Blue Motel. Beneath this last statement, Neyland wrote an address next to his brother’s name.

{¶ 19} Dr. Cynthia Beisser, M.D., deputy coroner for Lucas County, conducted the autopsies on Smith and Lazar. Dr. Beisser testified that Smith died from one gunshot wound to the head. The gunshot entered Smith’s right cheek and exited just above his left ear.

{¶ 20} Dr. Beisser testified that Lazar was shot four times in the back and once in the right arm. Three of the shots in the back were in close proximity and displayed a triangular pattern. Gunpowder stippling around one of the gunshot wounds in the back indicated “an intermediate range of fire.” Dr. Beisser concluded that Lazar’s death resulted from multiple gunshot wounds.

{¶ 21} After obtaining a search warrant, the police searched Neyland’s storage units. In one of the units, the police found two spotting scopes set up in the middle of the unit with pieces of paper underneath. The top piece of paper stated, “If your big dumb retard ass wasn’t in here!!! You wouldn’t be reading this would you?” A paper underneath that one stated, “OOOO, I’m so scared. Three Round Shot Group.” On the same paper, three pennies were arranged in a triangular pattern with circles drawn around them. Below the pennies, there was the statement, “You think I’m playing[.] You’re gonna come up missing!!!” Numerous firearms and ammunition were also found in the storage unit.

{¶ 22} Daniel Davison, a forensic scientist at BCI & I, performed a gunshot-residue analysis on samples from Neyland’s hands and from the steering wheel of the tractor. Davison testified that test results were “highly indicative of gunshot residue” on one of the samples from Neyland’s hands and on a sample from the steering wheel.

{¶ 23} Todd Wharton, a forensic scientist at BCI & I, compared Neyland’s fingerprints with a fingerprint lifted from a weapons magazine found in Neyland’s tractor. Wharton testified that his comparison identified the print of Neyland’s left little finger on the magazine.

{¶ 24} Wharton also examined the Ruger 9 mm semiautomatic pistol found in Neyland’s tractor. Testing established that the empty cartridge cases collected at the murder scene were fired from this firearm. Testing also confirmed that bullets recovered from the scene and from the Lazar autopsy had been fired by this firearm.

B. Defense case

{¶ 25} The defense presented no witnesses during the trial phase. The defense did present four sales receipts showing that two rifles, a shotgun, and a pistol found in Neyland’s storage unit had been purchased on November 3, 2006. Defense counsel offered this evidence to show that these weapons were purchased almost ten months before the homicides.

II. Case History

{¶ 26} Neyland was indicted on two counts of aggravated murder pursuant to R.C. 2903.01(A). Count One charged Neyland with the aggravated murder of Lazar with prior calculation and design. Count Two charged Neyland with the aggravated murder of Smith with prior calculation and design.

{¶ 27} Counts One and Two included death-penalty specifications for purposeful killings as part of a course of conduct, R.C. 2929.04(A)(5). Count Two included a death-penalty specification for murder to escape accounting for a crime, R.C. 2929.04(A)(3). Both counts also included gun specifications.

{¶ 28} Neyland pleaded not guilty to all charges. The jury found Neyland guilty of all charges and specifications, except he was found not guilty of the specification for murder to escape accounting for a crime. Neyland was sentenced to death on the two counts of aggravated murder. He was also sentenced to six years in prison for the two gun specifications.

III. Issues on Appeal

{¶ 29} The principal issues for review include Neyland’s competency to stand trial, the trial court’s order that Neyland wear leg restraints in the courtroom, the introduction of weapons and ammunition not used in the murders, the introduction of Dr. Smith’s former testimony during the penalty phase, and the adequacy of the trial court’s sentencing opinion.

{¶ 30} In this appeal, Neyland seeks reversal of his convictions and sentence in 19 propositions of law. We will address the issues in the approximate order that they arose during the trial proceedings.

A. Pretrial and trial-phase issues

1. Competency to stand trial (Proposition of law I)

{¶ 31} Neyland argues that the trial court abused its discretion in finding that he was competent to stand trial, because this ruling is not supported by the evidence.

{¶ 32} The test for determining whether a defendant is competent to stand trial is “ ‘ “whether [the defendant] has sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” ’ ” State v. Berry, 72 Ohio St.3d 354, 359, 650 N.E.2d 433 (1995), quoting Dusky v. United States, 362 U.S. 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (1960), quoting the argument of then Solicitor General J. Lee Rankin. Moreover, a defendant is presumed to be competent to stand trial, and the burden is on the defendant to prove by a preponderance of the evidence that he is not competent. State v. Jordan, 101 Ohio St.3d 216, 2004-Ohio-783, 804 N.E.2d 1, ¶ 28; R.C. 2945.37(G).

{¶ 33} A trial court’s finding that a defendant is competent to stand trial will not be disturbed when there is some reliable and credible evidence supporting that finding. State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 46; State v. Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, ¶ 33.

a. The competency proceedings

{¶ 34} Defense counsel submitted a pretrial motion requesting that Neyland be examined to determine whether he was competent to stand trial. Dr. Thomas G. Sherman, a psychiatrist at the Court Diagnostic and Treatment Center, met with Neyland and concluded that he was not competent to stand trial.

{¶ 35} The trial court granted the state’s request for a second evaluation of Neyland’s competency to be conducted on an in-patient basis at Twin Valley Behavioral Healthcare. Dr. Delaney Smith, a psychiatrist at Twin Valley, and Dr. Kristen E. Haskins, a clinical psychologist at Twin Valley, evaluated Neyland. They found that Neyland was competent to stand trial. The trial court then granted a defense request for a third evaluation. Dr. Barbra A. Bergman, a clinical/forensic psychologist, conducted this evaluation and concluded that Neyland was competent.

{¶ 36} Thereafter, the trial court conducted a competency hearing. Dr. Sherman testified that he spent a little over an hour talking with Neyland and determined that he had a mental illness, most likely schizophrenia. Dr. Sherman mentioned that Neyland had been evaluated in the late 1990s, and it was determined that he had a mental illness then. Dr. Sherman provided examples of Neyland’s paranoid thinking. Neyland believed that people were placing prophylactics in his laundry and that people were entering his apartment and listening to his answering machine.

{¶ 37} Dr. Sherman stated that as a result of his mental illness, Neyland was “not able to understand the nature or the gravity of the charges against him, but more importantly it impacted upon his ability to cooperate with his own defense.” Dr. Sherman concluded that Neyland was not competent to stand trial. He stated, “This was not even a close call.” During cross-examination, Dr. Sherman acknowledged that he did not speak with Neyland’s attorneys, did not administer any tests, and did not review the reports completed by the other psychologists who had examined Neyland.

{¶ 38} Dr. Smith testified that Neyland was under her care during his 30-day in-patient stay at Twin Valley. Dr. Smith was responsible for doing “intake on him, a psychiatric assessment, and prescribing any medications.” Dr. Smith detected no signs of mental illness, but determined that Neyland had a paranoid personality disorder. She stated that Neyland discussed his plans to work with his attorneys and mentioned that if things did not work out at trial he could file an appeal. Dr. Smith also testified that “he was able to be cooperative when he chose to be so; and that when he chose not to be cooperative it was just that, it was a choice that he was making and not the product of some mental illness, such as being grossly delusional * * * or hearing voices telling him not to cooperate.” Dr. Smith concluded, “It is my opinion within a reasonable medical certainty that he is both able to understand the nature and objectives of the proceedings as well as to assist counsel in his defense should he choose to do so.” Yet Dr. Smith did not complete a written report and acknowledged that it was not her purpose to conduct a competency evaluation.

{¶ 39} Dr. Haskins also evaluated Neyland during his stay at Twin Valley. She administered a test called the MacArthur Competence Assessment Tool-Criminal Adjudication (“MacCAT-CA”) to help determine Neyland’s competency. Neyland had a low score of 4 out of a possible 16 on the reasoning section, suggesting serious difficulty in distinguishing relevant from irrelevant information and difficulty in reasoning through the options of pleading guilty or not guilty. Dr. Haskins attributed this low score to Neyland’s refusal to cooperate with the assessment procedures.

{¶ 40} But Dr. Haskins’s clinical evaluation showed that Neyland was aware of the charges against him, knew the possible pleas and the potential sentences, and understood the different roles of the parties. Neyland also stated that he would allow his attorneys to defend him. Dr. Haskins testified that Neyland is “at least of average intelligence” and that he does not have a serious mental illness. She concluded that Neyland is “capable of understanding the nature and objective of the proceedings against him and of assisting in his own defense.” Yet Dr. Haskins said, “[I]t’s going to be very difficult for his attorneys to represent him. He is not stupid. * * * He has certain thoughts about how he wants things to go.”

{¶ 41} Dr. Bergman evaluated Neyland during a one-hour interview at the Wood County Jail. She testified that Neyland did not want her to conduct this evaluation, because a competency evaluation had already found that he was competent. She stated that Neyland was “very controlling” and would not allow her to ask questions about pertinent topics. Dr. Bergman believed that Neyland had a personality disorder with predominant features that are paranoid, narcissistic, schizoid, and obsessive-compulsive. Dr. Bergman concluded that Neyland understood the nature and significance of the charges and the objectives of the court proceedings and that he was capable of assisting his counsel and meaningfully participating in the proceedings.

{¶ 42} The trial court found Neyland competent to stand trial. The trial court stated that Dr. Smith and Dr. Haskins were more persuasive than Dr. Sherman, because the doctors at Twin Valley had the opportunity to observe Neyland’s behavior for approximately 30 days. The trial court discounted Neyland’s low score on the reasoning section of the MacCAT-CA because all the doctors who evaluated Neyland indicated that he was very guarded and that Neyland exercised his right against self-incrimination, which made it difficult to administer the test.

b. Analysis

{¶ 43} Neyland argues that the trial court abused its discretion in finding that he was competent to stand trial. He asserts that Dr. Sherman’s report, along with his experience, deserved as much weight, if not more, than the other expert opinions. Neyland also attacks the findings of the three experts who found him to be competent and argues that the trial court erred in relying on their testimony in finding him competent.

{¶ 44} First, Neyland argues that Dr. Haskins’s opinion that he was competent was not supported by her own underlying findings about Neyland, including (1) his inability to disclose personal information, (2) his rigid neurotic adjustment, (3) his clinically significant impairment and serious difficulty in distinguishing relevant from less relevant factual information and in reasoning through legal options of pleading guilty or not guilty, and (4) the likelihood that he would be a very difficult defendant with whom to reason.

{¶ 45} Neyland’s claims take Dr. Haskins’s statements out of context. Dr. Haskins acknowledged that the validity of Neyland’s test results on the Minnesota Multiphasic Personality Inventory-2 (“MMPI-2”) might have been compromised by his unwillingness or inability to disclose personal information. Dr. Haskins also discussed the possibility that Neyland’s pattern of uncooperativeness may be due to a “rigid neurotic adjustment.”

{¶ 46} Dr. Haskins did report that Neyland scored low on the reasoning section of the MacCAT-CA. But Dr. Haskins attributed Neyland’s low score to his refusal to cooperate with the assessment procedures. Dr. Haskins’s comment that Neyland will be a “very difficult defendant with whom to reason” came after her discussion about Neyland’s refusal to cooperate and refusal to answer certain questions on the MacCAT-CA. Dr. Haskins’s observations do not conflict with her finding that Neyland is competent to stand trial. As noted in Berry, 72 Ohio St.3d at 360-361, 650 N.E.2d 433, a defendant’s failure to cooperate with counsel does not constitute sufficient indicia of incompetence to raise doubt about a defendant’s competence to stand trial. Thus, Dr. Haskins’s findings do not undermine her competency findings.

{¶ 47} Second, Neyland argues that Dr. Bergman’s opinion that he was competent to stand trial is undermined by her observations of Neyland’s (1) poor judgment, (2) inflexible, rigid views, (3) limited insight, (4) severe personality disorder, and (5) failure to assist his counsel to prepare for his defense.

{¶ 48} Dr. Bergman discussed Neyland’s mental status in her written evaluation. Neyland’s poor judgment, inflexible, rigid views, and limited insight into his own behavior were some of the factors that led to Dr. Bergman’s conclusion that Neyland had a severe personality disorder. These findings do not undermine Dr. Bergman’s conclusion that Neyland was competent to stand trial. Indeed, “[i]neompetency must not be equated with mere mental or emotional instability or even with outright insanity. A defendant may be emotionally disturbed or even psychotic and still be capable of understanding the charges against him and of assisting his counsel.” State v. Bock, 28 Ohio St.3d 108, 110, 502 N.E.2d 1016 (1986).

{¶ 49} Dr. Bergman’s evaluation included her discussion with J. Scott Hicks, Neyland’s defense counsel. Hicks reported that Neyland is “no help at all in preparing the case for [the] defense.” Dr. Bergman stated that Neyland had his own ideas about his defense and expressed his unhappiness with counsel’s direction in managing his case. Yet Neyland clearly understood his legal rights and stated several times, “I have a right to remain silent.” Neyland’s lack of cooperation with defense counsel at various times did not establish that he was not competent to stand trial. See Vrabel, 99 Ohio St.3d 184, 2003-Ohio-3193, 790 N.E.2d 303, at ¶ 30. Thus, Dr. Bergman’s comments about Neyland’s lack of cooperation with counsel did not invalidate her findings.

{¶ 50} Neyland also argues that Dr. Bergman’s finding of competency was based on the wrong standard, i.e., she believed that he must be suffering from mental illness or mental retardation to be found incompetent. We also reject this claim. In finding Neyland competent, Dr. Bergman testified, “In my opinion he does understand the nature and significance of the charges. He does understand the nature and objectives of the Court proceedings. He is capable of assisting his attorney and he is capable of participating in a meaningful manner in the Court proceedings.” Thus, Dr. Bergman used the correct standard in finding that Neyland was competent to stand trial.

{¶ 51} Finally, Neyland argues that the trial court’s factual findings underlying its determination that he was competent to stand trial were clearly erroneous.

{¶ 52} First, Neyland argues that Dr. Smith’s testimony could not form the basis for the trial court’s findings, because Dr. Smith testified that it was not her job to perform a competency evaluation and she did not prepare a written report. Thus, Neyland argues that Dr. Smith’s testimony did not meet the exacting standards of R.C. 2945.371. However, Neyland failed to object to Dr. Smith’s opinion about his competency at the hearing and thus waived all but plain error. See State v. Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, ¶ 29. No plain error occurred.

{¶ 53} R.C. 2945.371 provides procedures for a trial court to follow in conducting competency evaluations. R.C. 2945.371(G)(1) and (2) provide that an examiner shall file a written report that includes the examiner’s findings and the facts in reasonable detail on which the findings are based.

{¶ 54} R.C. 2945.37 provides procedures for conducting a competency hearing. R.C. 2945.37(E) states: “The prosecutor and defense counsel may submit evidence on the issue of the defendant’s competence to stand trial. A written report of the evaluation of the defendant may be admitted into evidence at the hearing * * *.” (Emphasis added.) Nothing in R.C. 2945.37 limits expert testimony that may be presented during such hearings.

{¶ 55} Evid.R. 702(B) provides that “a witness may testify as an expert” by reason of his or her “specialized knowledge, skill, experience, training, or education.” Dr. Smith was qualified to testify as an expert under Evid.R. 702 because of her specialized knowledge and experience as a psychiatrist. She testified that she had previously conducted between 30 and 40 competency evaluations. Neyland was under Dr. Smith’s care during the 30 days that he was at Twin Valley, and she met with him throughout his stay. She also testified that she talked to other staff members who interacted with Neyland on a daily basis.

{¶ 56} We conclude that a sufficient foundation was established for Dr. Smith to render an opinion about Neyland’s competency to stand trial. Neyland’s complaint that it was not Dr. Smith’s job to conduct a competency evaluation goes to the weight to be given to her opinion and not her ability to render such an opinion. See State v. Luoma, 2d Dist. Montgomery No. 10719, 1990 WL 197944, *10 (Dec. 7, 1990) (psychiatrist permitted to testify concerning defendant’s sanity although his sole purpose for evaluating the defendant was to determine competency).

{¶ 57} Second, Neyland argues that the trial court should not have relied on Dr. Haskins’s evaluation, because she spent only four hours with him. Neyland’s claim overlooks the fact that Dr. Haskins reported that she received treatment-team updates during Neyland’s in-patient stay, talked to defense counsel about him, reviewed treatment charts, reviewed Dr. Sherman’s report, consulted with Dr. Smith, and reviewed other information involving his case. Moreover, Dr. Haskins was unable to meet with Neyland for a longer period, because he refused to meet with her.

{¶ 58} Third, Neyland argues that the trial court erred in finding that because Dr. Smith and Dr. Haskins observed him for approximately 30 days, this gave them a better opportunity to observe his behavior than Dr. Sherman. Neyland emphasizes that Dr. Smith and Dr. Haskins testified that the length of an examination is not the crucial factor in conducting a competency evaluation. Neyland also points out that Dr. Bergman met with him for only an hour.

{¶ 59} As with other witnesses, the trial judge heard all of the expert testimony, and it was his job to judge their credibility and weigh all the evidence in making his findings. Deference on these issues should be given to those “who see and hear what goes on in the courtroom.” State v. Cowans, 87 Ohio St.3d 68, 84, 717 N.E.2d 298 (1999).

{¶ 60} The trial court’s findings about the length of the evaluations were not unreasonable. Indeed, Dr. Smith compared her examination with Dr. Sherman’s shorter examination. She noted, “I had more time to observe and interact with Mr. Neyland and see him in various different settings and see his interactions with different people.” Thus, we also reject this claim.

c. Conclusion

{¶ 61} We hold that the trial court did not abuse its discretion in finding that Neyland was competent to stand trial. Three of the four witnesses who testified concluded that he was competent. The trial court also reasonably determined that greater weight should be given to testimony of a psychiatrist and a psychologist who examined Neyland during a 30-day observational period rather than a psychiatrist who spent only a little more than an hour with him. Thus, rehable and credible evidence supports the trial court’s decision. We reject proposition I.

2. Request for self-representation (Proposition of law XIV)

{¶ 62} Neyland argues that the trial court erred by failing to grant his request for self-representation.

a. Assertions and request for self-representation

{¶ 63} During a pretrial hearing on December 11, 2007, Neyland told the trial court:

I might be able, I might have to defend myself because I am not getting cooperation that I need from the public defender’s office.

And my credibility right now, I have 800 pages of prosecution here. I have no, I have nothing for discovery [from] the public defender’s office. I have 800 pages from October from the prosecution’s office, and I read the 800 pages. There is a credibility problem with every witness in here.

(Emphasis added.)

{¶ 64} In response, the trial court encouraged Neyland to work with his attorneys. The judge stated, “I realize that everyone in your circumstance is nervous about their representation; but in view of the reports that I have received, I would strongly encourage you to not * * * consider that.” The trial court’s reference to “reports” appears to have been Dr. Sherman’s competency evaluation that the parties had been discussing during this hearing. Neyland responded, “My Sixth Amendments Rights have been violated.” But Neyland said nothing more about representing himself.

{¶ 65} During a pretrial hearing on February 12, 2008, the trial court expressed concern about the possibility that Neyland would request self-representation. The judge stated, “I’m hoping that he won’t raise this * * *. But if at some point he expresses a clear and unequivocal request, then the Court is going to have to rule on it and address it.” Adrian Cimerman, lead defense counsel, stated that Neyland had “never seriously, if at all, raised the desire to represent himself.” J. Scott Hicks, assistant defense counsel, also stated, “He has never expressed to me any desire to represent himself.”

{¶ 66} During a pretrial hearing on August 25, 2008, the trial court asked defense counsel if Neyland was insisting that counsel withdraw and that he represent himself. Cimerman replied that Neyland was not.

{¶ 67} On October 30, 2008, following the introduction of all the trial-phase evidence, the trial judge stated that the deputies had informed him that Neyland wanted to discuss representing himself. The trial court stated, “I definitely am not going to let him represent himself pro se at this time because we’re done basically other than closing arguments.” Nevertheless, the trial court allowed Neyland to make his request.

{¶ 68} Neyland addressed the trial court and made the following remarks about a pro se motion and his request for self-representation:

Thank you, Your Honor. The first question I need to ask you is I understand that the addendum to Motion 44 was not filed in a timely manner. There is some information from the witnesses that was testified to on the witness stand that is included in the addendum, and I would like to only address that during a presentation. I would like to mount my own defense from the defense table and counsel with counsel’s assistance. I am not requesting to be a witness. I’m not a witness. I am introducing myself to the jury because they do not have any background information, personal background information, family background information, and I have no defense witnesses.

(Emphasis added.)

{¶ 69} Neyland then discussed his concerns about the defense. Neyland claimed that there were discrepancies in witness statements that he wanted to read and mentioned his desire to read court cases into the record that involved him and his previous employers. Neyland also discussed his unhappiness with counsel because they failed to use his notes during cross-examination.

{¶ 70} In response, the trial judge told Neyland that he had noticed that his counsel were paying attention to him when he offered points. The trial court stated, “I’m sure they determined that they just weren’t proper issues because you don’t understand what is a proper issue before the Court. So, again, I’m going to deny your request to represent yourself.” There was no further discussion about self-representation.

b. Analysis

{¶ 71} “The Sixth Amendment * * * guarantees that a defendant in a state criminal trial has an independent constitutional right of self-representation and that he may proceed to defend himself without counsel when he voluntarily, and knowingly and intelligently elects to do so.” State v. Gibson, 45 Ohio St.2d 366, 345 N.E.2d 399 (1976), paragraph one of the syllabus, citing Faretta v. California, 422 U.S. 806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975). If a trial court denies the right to self-representation when the right has been properly invoked, the denial is per se reversible error. State v. Reed, 74 Ohio St.3d 534, 535, 660 N.E.2d 456 (1996), citing McKaskle v. Wiggins, 465 U.S. 168, 177, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984), fn. 8.

{¶ 72} The assertion of the right to self-representation must be clear and unequivocal. State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶ 68; State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 38. A request for self-representation may be denied when circumstances indicate that the request is made for purposes of delay or manipulation of the trial process. See United States v. Frazier-El, 204 F.3d 553, 560 (4th Cir.2000).

{¶ 73} First, Neyland argues that the trial court erred in failing to grant his request for self-representation on December 11, 2007. On that occasion, Neyland told the trial court that he “might have to defend himself’ at the same time that he was voicing his frustration about getting discovery from the public defender’s office. Other courts have held that a request for self-representation is not unequivocal if it is a “ ‘momentary caprice or the result of thinking out loud,’ ” Jackson v. Ylst, 921 F.2d 882, 888 (9th Cir.1990), quoting Adams v. Carroll, 875 F.2d 1441, 1445 (9th Cir.1989), or the result of frustration, Reese v. Nix, 942 F.2d 1276, 1281 (8th Cir.1991) (defendant merely expressed frustration and did not clearly invoke his right of self-representation). Similarly, we conclude that Neyland was expressing his frustration and not clearly invoking his right to self-representation.

{¶ 74} Defense counsel confirmed that Neyland was not invoking his right to self-representation. Counsel told the trial court during a pretrial hearing on February 12, 2008, that Neyland had “never seriously, if at all, raised the desire to represent himself.” Thus, we reject Neyland’s claim that his request for self-representation on December 11, 2007, was improperly denied.

{¶ 75} Second, Neyland argues that the trial court erred in failing to grant his request for self-representation after the state’s case-in-chief was completed. Neyland told the court at that time, “I would like to mount my own defense.”

{¶ 76} A trial court may deny a defendant’s request for self-representation if it is untimely made. In Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, at ¶ 40, the court held that a defendant’s request to represent himself made three days before trial was untimely. Other courts have also found that a request for self-representation can be denied when the request is untimely. See, e.g., United States v. Young, 287 F.3d 1352, 1354 (11th Cir.2002) (“a defendant’s request to proceed pro se is untimely if not made before the jury is empaneled”); Wood v. Quarterman, 491 F.3d 196, 202 (5th Cir.2007) (“Wood did not move to proceed pro se until after the jury had already returned a guilty verdict against him, immediately before the sentencing phase of his [capital-murder] trial, and the trial court therefore had the discretion to deny the motion” [emphasis sic]); United States v. Smith, 413 F.3d 1253, 1281 (10th Cir.2005) (request made six days before trial untimely).

{¶ 77} Neyland’s request for self-representation was untimely because he did not make it until just before the beginning of the trial-phase closing arguments. Thus, we hold that the trial court did not err in denying Neyland’s late request for self-representation.

{¶ 78} But Neyland argues that the trial court sidestepped the issue and never addressed his request to waive counsel. Upon learning of Neyland’s intent to request self-representation, the trial court informed the parties that he was going to deny this request because it was untimely. Nevertheless, the trial court allowed Neyland to make his request for self-representation and voice any other concerns that he had about the proceedings. After Neyland finished, the trial court said, “You’ve raised these issues, and the Court is denying your request at this time.” Thus, the record shows that the trial court did consider Neyland’s request for self-representation and denied it for being untimely.

{¶ 79} Neyland also argues that the trial court erred by failing to consider whether he was competent to represent himself. See Indiana v. Edwards, 554 U.S. 164, 177-178, 128 S.Ct. 2379, 171 L.Ed.2d 345 (2008). However, the trial court did not need to determine Neyland’s competency to represent himself, because Neyland’s underlying request was untimely.

{¶ 80} Based on the foregoing, we reject proposition XIV.

3. Leg restraints (Propositions of law II and III)

{¶ 81} In proposition of law II, Neyland argues that the trial court erred when it ordered Neyland to wear leg restraints without a valid reason.

{¶ 82} No one should be tried while shackled, absent unusual circumstances. State v. McKnight, 107 Ohio St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315, ¶ 219, citing Illinois v. Allen, 397 U.S. 337, 344, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970). The use of restraints tends to erode the presumption of innocence that the justice system attaches to every defendant. State v. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, ¶ 79. But it is widely accepted that a prisoner may be shackled when there is a danger of violence or escape. State v. Woodards, 6 Ohio St.2d 14, 23, 215 N.E.2d 568 (1966). The decision to require restraints is left to the sound discretion of the trial court, which is in a position to consider the prisoner’s actions both inside and outside the courtroom, as well as his demeanor while the court is in session. Franklin at ¶ 79.

a. Rulings on leg restraints

{¶ 83} On April 10, 2008, defense counsel filed a motion requesting that Neyland appear at all proceedings without restraints. On June 2, 2008, the trial court denied this motion.

{¶ 84} On August 25, 2008, during a pretrial session outside the defendant’s presence, the trial court discussed the potential that Neyland might become disruptive during trial based on his propensity “to insist on certain subject matters being addressed” and that “he may become out of control a little bit” if the court “rules against him on relevance.” The trial court added, “I don’t know what we can do other than obviously using some sort of restraint, but I guess now is the time to talk about it so that we’re not all caught off guard.” The court also said, “Other than that he’s been pretty well-behaved.”

{¶ 85} In response, defense counsel said, “In fairness to Calvin it’s hard to predict, he’s very unpredictable, but I would anticipate he would be demonstrative, not necessarily disruptive.” Defense counsel also mentioned that he has had previous clients wear leg shackles that were hidden from the jury by an apron in front of counsel’s table.

{¶ 86} During pretrial proceedings on September 24, 2008, the trial court stated that it was considering having Neyland wear either leg irons or some other leg restraint under his pants and that placing skirting around the table would ensure that the jury could not see that Neyland was restrained. The trial court also mentioned that there would be two or three deputies in the courtroom.

{¶ 87} During pretrial proceedings on October 8, 2008, the bailiff indicated that a leg restraint had been found that would fit Neyland. He stated that Neyland would walk with a “slight gate [sic],” apparently meaning that Neyland’s gait would be slightly impaired. During pretrial proceedings on October 15, 2008, the trial court stated that a leg restraint would be used and that a skirt around the defense counsel’s table would not be necessary.

{¶ 88} After trial began, the state filed a motion to have Neyland wear two leg restraints because he had figured out how to manipulate the single one. During a hearing on the motion, the trial court asked defense counsel if they wanted to have an evidentiary hearing. Defense counsel responded, “We’ll leave it up to the sheriffs department.” Defense counsel added, “My experience with leg braces, * * * the defendant has figured out how to unlock it or manipulate it or something, which I think that’s not a secret how to do that. * * * Again, * * * let’s not do anything at this point unless the sheriff thinks it’s appropriate.”

{¶ 89} The trial court then stated:

And he is obviously a big individual. We have tried to do the most we could in terms of not restraining him certainly in a visible way, and that’s our effort is to not have the jury even be aware.. From what I’ve been able to see thus far, no one would even know. What I think I’ll do is authorize it but leave it at the discretion of the sheriffs department. Does that seem fair? And if they feel it’s appropriate, they can do it.

{¶ 90} Both the prosecutor and the defense counsel expressed their agreement. The trial court said, “We’ll leave it at that. That will be the order of the Court.” Subsequently, the trial court issued an order granting the state’s motion to require Neyland to wear a second leg restraint at trial “if deemed necessary by the Wood County Sheriff.”

b. Analysis

(1) First leg restraint

{¶ 91} Neyland claims that the trial court ordered him to wear restraints without any showing that restraints were necessary because of his disruptive behavior.

{¶ 92} The trial court granted the state’s request on shackling without first conducting a hearing to consider whether evidence showed that shackling was necessary. We continue to emphasize that prior to ordering a defendant to wear restraints, the trial court should hold a hearing on the matter. Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, at ¶ 82.

{¶ 93} The United States Court of Appeals for the Sixth Circuit has held that when considering whether to physically restrain a defendant during trial, the court should conduct a formal hearing with sworn testimony to resolve factual disputes and preserve the appellate record. United States v. Perry, 401 Fed. Appx. 56, 63 (6th Cir.2010). However, the United States Supreme Court has not held that such a hearing is required. See Deck v. Missouri, 544 U.S. 622, 629, 125 S.Ct. 2007, 161 L.Ed.2d 953 (2005).

{¶ 94} We have also held that a hearing on the necessity for restraints is not an “absolute rule.” Franklin at ¶ 82. In Franklin, we stated, “Where the facts and circumstances surrounding a defendant illustrate a compelling need to impose exceptional security procedures, the trial court’s exercise of discretion in this regard should not be disturbed unless its actions are not supported by the evidence before it.” (Emphasis added.) Id.

{¶ 95} While there was no formal hearing, the trial court’s reasons for ordering Neyland to wear a leg restraint can be gleaned from the record. During the pretrial session on August 25, 2008, the judge voiced his concerns about Neyland’s potential for disruptive courtroom behavior. Defense counsel stated that Neyland was “very unpredictable” and acknowledged that he “would be demonstrative, not necessarily disruptive.”

{¶ 96} The trial court had observed Neyland’s demeanor in court. The trial court had also heard two psychologists and two psychiatrists testify at the competency hearing about Neyland’s bizarre thinking and paranoid behavior. The trial court was also mindful that Neyland was a large man and that sheriffs deputies might have difficulty in handling him if he became disruptive. Neyland’s driver’s license stated that he stood six feet, three inches tall and weighed 250 pounds.

{¶ 97} Yet nothing shows that Neyland had been disruptive in court or had been violent or disruptive in jail. Indeed, the trial court stated that Neyland had been “pretty well-behaved.” Compare Franklin, 97 Ohio St.3d 1, 2002-Ohio-5304, 776 N.E.2d 26, at ¶ 80-81 (defendant demonstrated a propensity for violence and a psychologist described him as a “time bomb waiting to happen”); Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, at ¶ 55 (defendant had a history of violent felonies and committed a murder in prison).

{¶ 98} The trial court provided limited reasoning as to why it found a compelling need to keep Neyland shackled. Yet the trial judge was in a position to consider Neyland’s actions inside and outside the courtroom and voiced his concerns about Neyland’s potential for disruptive courtroom behavior. A “court need not sit by helplessly waiting for a defendant to commit a violent or disruptive act in the courtroom before being cloaked with the power to invoke extra security measures.” Franklin at ¶ 79. Thus, we hold that the trial court did not abuse its discretion in ordering Neyland to wear a leg restraint.

(2) Second leg restraint

{¶ 99} After trial began, the trial court granted the state’s request for Neyland to wear a second restraint, but left it to “the discretion of the sheriffs department.” As an initial matter, the record is unclear whether Neyland was actually placed in a second leg restraint following the trial court’s ruling. In any event, defense counsel failed to object and thus waived all but plain error.

{¶ 100} Neyland argues that the trial court erred by leaving the final decision on wearing a second restraint to the sheriffs discretion. “The trial court must exercise its own discretion and not leave the issue up to security personnel.” State v. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, ¶ 104; see also United States v. Miller, 531 F.3d 340, 345-346 (6th Cir.2008).

{¶ 101} Accordingly, the trial court erred by leaving the final decision on wearing a second leg restraint to the sheriffs discretion.

(¶ 102} Even assuming that Neyland wore a second restraint for the remainder of the trial, we hold that there was no plain error. The leg restraints were under Neyland’s pants and not visible to the jury. But Neyland argues that when he went to the podium to make an unsworn statement during the mitigation phase of the trial, his constrained movements must have been visible to the jury. However, nothing in the record indicates that the jury observed Neyland walking with constrained movements before he made his unsworn statement. Neyland bears the burden on plain-error review, and he has not met that burden. Thus, this claim is rejected. See Miller, 531 F.3d at 347.

(3) Defense arguments

{¶ 103} Neyland argues that the trial court failed to consider lesser alternatives, such as the employment of extra deputies, before ordering that he wear leg restraints. Some Ohio courts of appeals have held that a trial court has “a duty to determine whether there is a ‘less prejudicial but adequate means of providing security’ ” before ordering restraints. State v. McCree, 5th Dist. Richland No. 10CA133, 2011-Ohio-4114, 2011 WL 3652755, ¶ 14, quoting Lakin v. Stine, 431 F.3d 959, 964 (6th Cir.2005); State v. Davis, 2d Dist. Clark No. 2011 CA 15, 2012-Ohio-1225, 2012 WL 996909, ¶ 15; State v. Mitchell, 6th Dist. Williams No. WM-05-004, 2006-Ohio-5117, 2006 WL 2790333, ¶ 29.

{¶ 104} The trial court did discuss the use of deputies to provide courtroom security. The trial court also discussed the option of using a stun belt. The bailiff stated that two uniformed deputies would be with the defendant at all times. But the presence of additional deputies was not discussed as a lesser alternative to the use of leg restraints.

{¶ 105} The trial court should have considered whether there were lesser alternatives to the use of leg restraints to provide adequate courtroom security. Nevertheless, the trial court used restraints that were not visible to the jury rather than shackles or other visible types of restraints. Even though the record is unclear, it appears that the trial court considered the presence of deputies and the use of leg restraints as the least form of restraint necessary to ensure courtroom security. Under these circumstances, we reject this claim.

{¶ 106} Finally, Neyland argues that the leg restraints inhibited his interaction with defense counsel and thus interfered with his Sixth Amendment right to counsel. However, the defense never asserted that restraints interfered with the attorney-client relationship and thus waived all but plain error.

{¶ 107} No plain error occurred. Nothing in the record indicates that Neyland’s leg restraints inhibited his communication with counsel with respect to his defense. Both of Neyland’s hands were free throughout the trial. Neyland also does not claim that the restraints impeded his ability to follow the proceedings and take an active interest in the presentation of his case. Indeed, when asking to represent himself, Neyland said that he had taken pages and pages of notes that he wanted counsel to use during cross-examination. The trial court responded, “I noticed that they [defense counsel] were paying attention to you when you offered points.” See State v. Chester, 10th Dist. Franklin No. 08AP-1, 2008-Ohio-6679, 2008 WL 5265860, ¶ 14.

(4) Harmless error beyond a reasonable doubt

{¶ 108} Even assuming that the trial court abused its discretion in ordering Neyland shackled, we find that such error was harmless. Nothing in the record shows that the jury observed Neyland in leg restraints, and he was not prejudiced.

{¶ 109} Moreover, even if the jurors obseded Neyland in shackles, any error was harmless beyond a reasonable doubt.

[W]here a court, without adequate justification, orders the defendant to wear shackles that unit be seen by the jury, the defendant need not demonstrate actual prejudice to make out a due process violation. The State must prove “beyond a reasonable doubt that the [shackling] error complained of did not contribute to the verdict obtained.”

(Emphasis added.) Deck, 544 U.S. at 635, 125 S.Ct. 2007, 161 L.Ed.2d 953, quoting Chapman v. California, 386 U.S. 18, 24, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967).

{¶ 110} The state can meet this burden because overwhelming evidence of Neyland’s guilt was presented at trial. Evidence showed that Neyland was scheduled to meet with Lazar and Smith about the termination of his employment as a truck driver with Liberty Transportation. After arriving at Liberty, Neyland shot Lazar several times in the back and then walked upstairs to Smith’s office and shot him once in the head. Neyland’s murder of Smith can be heard on a 9-1-1 tape that was introduced at trial. A handgun was found in Neyland’s truck after the police arrested him. Forensic testing matched this handgun with bullets and shell casings found at the murder scene and with a bullet recovered from the autopsy of Thomas Lazar. Gunshot residue was found on Neyland’s hands. Investigators also found pieces of paper in Neyland’s storage unit on which three pennies were arranged in a triangular pattern that matched the triangular gunshot pattern on Lazar’s back. The paper contained the words, “OOOO, I’m so scared. Three Round Shot Group.” There was also the statement, “You think I’m playing[.] You’re gonna come up missing!!!” Thus, there is little chance that leg restraints, even if observable, affected the verdict or the sentence in this case.

{¶ 111} In proposition of law III, Neyland argues that defense counsel provided ineffective assistance of counsel by failing to object to the trial court’s order that he wear leg restraints. Neyland also argues that counsel was deficient by failing to set forth the relevant case law on this issue.

{¶ 112} Reversal of a conviction for ineffective assistance requires that the defendant show, first, that counsel’s performance was deficient and, second, that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984). Accord State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989), paragraph two of the syllabus.

{¶ 113} Contrary to Neyland’s claim, the record shows that defense counsel filed a pretrial motion asking that Neyland appear at all proceedings without restraints. Review of defense counsel’s motion also shows that it included citations to relevant case law.

{¶ 114} Yet defense counsel failed to renew their objection when the state requested that Neyland be ordered to wear a second leg restraint. The record is unclear whether Neyland was actually placed in a second restraint after the trial court’s order. But even assuming that he was, he cannot establish any resulting prejudice, because nothing shows that the leg restraints were visible to the jury. See State v. Ayers, 12th Dist. Warren Nos. CA2010-12-119 and CA2010-12-120, 2011-Ohio-4719, 2011 WL 4346678, ¶ 61. Thus, this claim lacks merit.

{¶ 115} Based on the foregoing, we overrule propositions II and III.

4. Failure to file motions to suppress (Proposition of law VII)

{¶ Í16} Neyland argues that trial counsel were ineffective by failing to file motions to suppress his statements to police and the evidence seized from the search of his motel room.

a. Failure to challenge admission of Neyland’s pretrial statements

{¶ 117} Under Strickland, Neyland must demonstrate that trial counsel were deficient. This requires Neyland to establish that a basis existed to suppress his pretrial statements. Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, at ¶ 35.

{¶ 118} The state introduced statements Neyland made to the SWAT team at the time of his arrest outside the Silver Blue Motel. Det. Sgt. Enrico Galimberti, the SWAT team leader, testified that Neyland was removed from his tractor and placed on the ground with his hands out to the side. According to Galimberti, Neyland blurted out, “I was going to turn myself in.” He also said, “I want the letter. There’s a letter in my truck. It’s to my brother. It’s my last will. Can I get that letter?” Before handcuffing Neyland, Galimberti asked Neyland if he had any weapons. Neyland responded, “No, the gun is in the truck by the door.”

{¶ 119} First, the requirement that police officers administer Miranda warnings applies only when a suspect is subjected to both custody and interrogation. Miranda v. Arizona, 384 U.S. 436, 444, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966) (prohibiting “custodial interrogation” without warnings). Neyland was arrested and almost immediately stated that he was going to turn himself in and wanted the letter containing his last will that was in the tractor. An unsolicited and spontaneous statement such as the one made by Neyland in this case is not the product of interrogation, so Miranda does not apply. Rhode Island v. Innis, 446 U.S. 291, 300, 100 S.Ct. 1682, 64 L.Ed.2d 297 (1980); State v. Dunn, 131 Ohio St.3d 325, 2012-Ohio-1008, 964 N.E.2d 1037, ¶ 24.

{¶ 120} Second, under the public-safety exception to Miranda established in New York v. Quarles, 467 U.S. 649, 104 S.Ct. 2626, 81 L.Ed.2d 550 (1984), police officers can ask a suspect questions without first giving Miranda warnings if they reasonably believe it is “necessary to secure their own safety or the safety of the public.” Id. at 659. Recognizing a “narrow exception” to the Miranda rule, id. at 658, Quarles reasoned that “the need for answers to questions in a situation posing a threat to the public safety outweighs the need for the prophylactic rule protecting the Fifth Amendment’s privilege against self-incrimination.” Id. at 657. Galimberti asked Neyland about the whereabouts of a weapon, because a gun had been used recently in killing Lazar and Smith. Moreover, Neyland was arrested in the parking area of a motel and the firearm would have posed a threat to public safety. Thus, Galimberti’s questioning appears to have been warranted by the public-safety exception to Miranda.

{¶ 121} Neyland argues that trial counsel should have filed a motion to suppress his statements because of his history of mental-health problems, including, at a minimum, a severe personality disorder. However, Neyland’s mental problems would not serve as a basis for challenging either Neyland’s unsolicited and spontaneous statements or his response to the question about weapons. See Colorado v. Connelly, 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473 (1986).

{¶ 122} Trial counsel could have decided that any motion to suppress Neyland’s statements to the police would have been pointless. See Adams, 103 Ohio St.3d 508, 2004-Ohio-5845, 817 N.E.2d 29, at ¶ 38. Accordingly, we hold that trial counsel were not deficient by failing to challenge the admissibility of Neyland’s pretrial statements.

b. Failure to challenge search warrant

{¶ 123} Neyland argues that his counsel were ineffective by failing to file a motion to suppress the evidence seized during the search of his motel room. The search yielded numerous weapons and other evidence that was admitted at trial.

{¶ 124} Following Neyland’s arrest, Michigan authorities obtained a search warrant for what they believed to be Neyland’s motel room. A search of that room uncovered no evidence. On the following day, the police learned that they had searched the wrong room. Monroe County Sheriffs Detective Tom Redmond then obtained a search warrant for the motel room where Neyland had actually stayed. Police searching that motel room seized an array of firearms and ammunition, a stun gun, handcuffs, and a couple of Hawaiian shirts.

{¶ 125} During trial, Neyland filed a pro se motion challenging the legality of the search warrant used in searching his motel room. The trial court denied the motion as not timely filed. Following the completion of the state’s case, the trial court revisited Neyland’s motion, stating:

After hearing the testimony, and, by the way, I ruled that it was not timely filed. Now that I have heard the testimony on all of it and have these exhibits, I do find that there is no basis to take those back. There was certainly probable cause for each of these search warrants. They appeared to be only obtained after there was probable cause, and they appeared to be properly executed. So Pm going to so rule at this time and consider, since the motion wasn’t filed in time to have a separate hearing on that issue, the Court is going to determine it on its own based on the exhibits.

{¶ 126} “ ‘Where the record contains no evidence which would justify the filing of a motion to suppress, the appellant has not met his burden of proving that his attorney violated an essential duty by failing to file the motion.’ ” State v. Drummond, 111 Ohio St.3d 14, 2006-Ohio-5084, 854 N.E.2d 1038, ¶ 208, quoting State v. Gibson, 69 Ohio App.2d 91, 95, 430 N.E.2d 954 (8th Dist.1980). Further, “ ‘failure to file a suppression motion does not constitute per se ineffective assistance of counsel.’ ” State v. Madrigal, 87 Ohio St.3d 378, 389, 721 N.E.2d 52 (2000), quoting Kimmelman v. Morrison, 477 U.S. 365, 384, 106 S.Ct. 2574, 91 L.Ed.2d 305 (1986).

{¶ 127} Neyland specifies no reason why the search warrant could have been legitimately challenged. The affidavit for the search warrant provided detailed facts supporting probable cause for the search of Neyland’s motel room. The search warrant specified the location to be searched (the motel room) and the property to be searched for and seized (9 mm handgun and other weapons and evidence pertinent to the investigation). Thus, the warrant was valid.

{¶ 128} Moreover, the trial court ultimately found that there was probable cause for the search of the motel room. Thus, Neyland cannot show that he was prejudiced by trial counsel’s failure to file a motion to suppress. This claim also lacks merit.

{¶ 129} Based on the foregoing, we overrule proposition VII.

5. Jury selection (Proposition of law XI)

{¶ 130} Neyland argues that the trial court erred in excusing four prospective jurors. He argues that under Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), and R.C. 2945.25(C), it is impro