State v. Jackson (141 Ohio St. 3d 171, 2014)

O’Donnell, J.

{¶ 1} Jeremiah Jackson appeals as of right from his aggravated murder convictions for killing Tracy Pickryl and from his other felony convictions. A three-judge panel imposed the sentence of death for Pickryl’s murder.

{¶ 2} We affirm Jackson’s convictions and sentence of death.

I. Trial Evidence

{¶ 3} Evidence introduced at trial showed that Jackson shot Pickryl while robbing the Soap Opera Laundry in Cleveland. Her murder ended a crime spree that began with Jackson’s attempted murder of Stanley Bentley and included a series of six robberies in Cleveland, Sandusky, and Lorain between June 2 and June 18, 2009.

A. Attempted murder of Stanley Bentley

{¶ 4} Jackson and Bentley became friends while working together at the same company in 2006 and 2007. On the evening of June 1, 2009, Jackson visited Bentley outside Bentley’s Cleveland residence. Jackson carried a bag with a gun inside, and he showed the gun to Bentley. The bag was left inside Bentley’s home. Jackson departed later that evening, but before he left, Bentley told him not to forget his bag.

{¶ 5} Between 4:30 and 5:00 a.m. on June 2, Jackson and Maurice Harrison went to Bentley’s home, and Jackson told Bentley that he had come to pick up his bag. Bentley told Jackson, “I thought you got the bag when you left. * * * I don’t have the bag.” According to Bentley, he got scared because Jackson became angry. Bentley then called his mother, Alfreda Rice, and told her what was going on. Jackson and Rice knew each other, and Jackson took the phone and. talked to her. Jackson told Rice that he needed $500. Rice responded that she did not have any money and hung up.

{¶ 6} Bentley and Jackson continued to argue about the bag. Bentley saw Jackson put on a pair of work gloves and reach into his pocket. Bentley told Jackson that he had to go to work. Jackson replied, “You’re not going to make it.” Bentley then felt a “jolt” to the left side of his body. He jumped out a window and ran to a neighbor’s house. The police were notified, and Bentley was taken to the hospital. He had been shot in the abdomen and remained in the hospital for more than two weeks.

B. Robberies in Cleveland, Sandusky, and Lorain

1.Super Wash Laundry robbery

{¶ 7} Around 11:30 p.m. on June 15, 2009, Jackson and Harrison walked into the Super Wash Laundry in Cleveland. They entered the office where Charles Caldwell, the laundry attendant, was seated and told him to put his head down and his hands up. Caldwell testified that one man carried a gun and the other man carried a bag. Jackson and Harrison then took approximately $200 from the cash drawer and some money from Caldwell’s pockets and fled the scene. Surveillance cameras videotaped the robbery, and that tape was shown at trial.

{¶ 8} At trial, Katrina Dickerson testified, as part of a plea bargain, that she had driven the getaway car. Dickerson stated that on the evening of June 15, 2009, she had driven Jackson and Harrison to the Super Wash Laundry and that they had gotten out and robbed it. She also testified about her involvement as the driver during four other robberies and the robbery and murder at the Soap Opera Laundry.

2.Hobo Joe’s Bar robbery

{¶ 9} Around 11:50 p.m. on June 15, 2009, Jackson, Harrison, James Dixon, and Dickerson entered Hobo Joe’s Bar in Cleveland. One of the men hit Steven McKenty, a customer, in the head with a pistol and took his wallet, $117 in cash, and his cell phone. Another robber put a pistol to the head of James Sedivy, the bartender, and threatened to shoot him if he did not cooperate. That robber rifled through Sedivy’s pockets and took money from the cash register. The robbers then left the bar.

3.Brickhouse Bar robbery

{¶ 10} Around 1:45 a.m. on June 17, 2009, Jackson and Dixon entered the Brickhouse Bar in Cleveland. Jackson and Dixon sat down at the bar and ordered a Corona and a tequila.

{¶ 11} About 15 minutes later, a third man entered the bar and directed Dwayne Buchannan and Monique Irby, two customers, to get on the floor and empty their pockets. Jackson then jumped over the bar, put a gun to the face of Jennifer Testa, the bartender, and took about $200 from the cash register. The three robbers then fled.

{¶ 12} At trial, Christopher Smith, a forensic scientist with the Ohio Bureau of Criminal Investigation, testified that he had examined the DNA on swabs that had been used to collect matter from the rim of a glass and a Corona beer bottle left on the bar. He testified that the DNA found on the glass was a mixture consistent with contributions from Dixon and Jackson. He also explained that Jackson could not be excluded as the source of the DNA found on the beer bottle. Smith determined that “the expected frequency of occurrence of the DNA profile from the swabs from the beer bottle * * * is 1 in 160,800,000,000,000,000 unrelated individuals.”

4. Howard Johnson’s Inn robbery

{¶ 13} Around 5:00 a.m. on June 17, 2009, Jackson, Harrison, and Dixon entered the lobby of Howard Johnson’s Inn in Sandusky, Ohio, in Erie County. Jackson showed his gun to Katherine Schaffer, the desk clerk, and she gave them approximately $250. The robbers also stole a surveillance monitor from the office, and Jackson took Schaffer to a storage area and bound her with duct tape. The robbers then fled. At trial, Schaffer viewed surveillance-camera pictures taken during the robbery, and she identified Jackson as one of the perpetrators.

5. Walgreens robbery

{¶ 14} Around 5:45 a.m. on June 17, 2009, Jackson, Harrison, and Dixon entered a Walgreens drug store in Lorain. Kayla Gaughan, the cashier, was at the front register helping Robert Morrison, a customer, check out. Jackson approached Morrison, placed him in a headlock, and pointed a gun at his head. One of the other men then took money from the cash register. Jackson took Morrison’s cell phone, wallet, and about $20 and pushed him into a closet. Meanwhile, the third man went into the pharmacy area and robbed Mallory Fay, the pharmacist. The robbers then left the store. Again, surveillance video captured Jackson’s participation in the robbery.

{¶ 15} Dickerson testified that after the Walgreens robbery on June 17, 2009, they drove to Cleveland. She took Jackson, Harrison, and Dixon to different locations in the Cleveland area.

{,¶ 16} During the trial, Detective Michael Kitchen testified that the police were able to obtain cell-phone records that indicated where Jackson’s, Dickerson’s, and McKenty’s cell phones were between June 15 and 18, 2009. These records showed that between 4:40 a.m. and 5:05 a.m. on June 17, following the robbery of the Brickhouse Bar in Cleveland, Jackson and his accomplices drove to Sandusky, where the robbery of Howard Johnson’s occurred. Jackson’s movements were then traced to the Lorain area, where the robbery of Walgreens took place. Cellphone records showed that around 6:30 a.m., Jackson and his accomplices returned to the Cleveland area.

C. Aggravated murder of Tracy Pickryl and attempted murder of Christy Diaz

{¶ 17} On the evening of June 17, 2009, Jackson contacted his friend Janica Jackson. At the trial, she testified that Jackson had asked her to borrow her car. He had offered her $100 and told her that he would return the car by 6:00 a.m. the next morning.

{¶ 18} Around 11:00 p.m. on June 17, Jackson and Dickerson got the car from Janica and Harrison joined them. Dickerson testified that she then drove to East 40th Street to pick up Dixon. Harrison exited the vehicle to find Dixon. Jackson and Dickerson then saw Harrison being arrested by members of the Special Weapons and Tactics (“SWAT”) team on his way back to the car, so Jackson and Dickerson drove away.

{¶ 19} Jackson then told Dickerson to drive to a location near the Soap Opera Laundry. She testified that he exited the car and walked down the street.

{¶ 20} In the early morning hours of June 18, 2009, Tracy Pickryl and Christy Diaz were working at the Soap Opera Laundry. Around 4:30 a.m., Jackson walked into the laundry and approached them. According to Diaz, Jackson asked if he could have a discount because he had only a few items to wash. Pickryl replied that they could not give discounts. Jackson then pulled a gun and pointed it towards Pickryl’s waist. He then demanded, “[C]ome on, give me the money.” Jackson also pulled at a necklace Pickryl was wearing, but he was unable to break the chain.

{¶ 21} He directed Pickryl and Diaz toward the front counter. Jackson then pointed his gun at Pickryl’s face and demanded, “[G]ive me the money.” Diaz gave Jackson $6 from her pocket. But Pickryl told Jackson, “[W]e don’t have no money here.” Jackson repeated, “[Gjive me the money.” Pickryl replied, “[DJude, we don’t have no money.” Jackson grabbed Pickryl’s necklace again and the chain broke when she pulled away. Jackson then grabbed Pickryl’s bracelet, and she pulled back. According to Diaz, Pickryl turned her head toward Jackson and looked at him, and she looked down. Jackson then shot her in the face.

{¶ 22} Diaz testified that Jackson turned the gun on her and said, “[Gjive me the money.” Diaz reached behind the microwave and handed him a pouch with money inside. Jackson pulled her toward a nearby office and tried to open it, but the door was locked. He then pointed the gun at her face and fired a shot. Diaz collapsed and thought she had been hit, because her ears were ringing and her face went numb. Jackson then ran out of the laundry.

{¶ 23} A surveillance video presented at trial showed Jackson coming into the laundry and taking Pickryl and Diaz at gunpoint to the front counter. Because of the placement of the cameras, the video did not show Jackson shooting Pickryl or firing at Diaz.

{¶ 24} Dickerson testified that she had heard two gunshots after Jackson left the car and that shortly thereafter, Jackson ran back to the car and told Dickerson to open the trunk. He got into the trunk and told Dickerson to drive away. They later returned the car to Janica’s house. Dickerson then picked up her car and dropped Jackson off near East 128th Street.

D. Investigation and arrest

{¶ 25} Pickryl was dead when emergency-medical-services personnel arrived. Diaz was clutching her head and told police officers that she had been shot, but an examination showed that she actually had not been shot.

{¶ 26} Investigators then began collecting evidence. A bullet casing and a piece of jewelry were found on the floor near the counter, and a spent bullet and bullet jacket were retrieved from the wall. In addition, a small strand of jewelry was found in the parking lot outside the laundry.

{¶ 27} At trial, Janica testified that she examined the inside of her car after Jackson returned it on the morning of June 18 and found a gold necklace in the cup holder between the seats. Around 8:30 a.m., Jackson called Janica and asked for a ride. He said he was in trouble and needed to hide in the trunk of her car. She declined but said she would talk to Jackson later.

{¶ 28} Following that phone call, Janica saw a video of the Walgreens robbery on a news website and recognized Jackson as the robber holding a gun to a victim’s head. She also read about the shooting at the Soap Opera Laundry. She then called the police and turned over the necklace to them.

{¶ 29} Around 1:00 p.m. on June 18, Janica and Jackson spoke on the phone, and she asked whether he shot the lady at the Soap Opera Laundry. He admitted shooting her and said he did it because she would not give him the money. Janica also testified that Jackson had previously told her that he was on the run because he had “shot a guy, and the guy was in the hospital.”

{¶ 30} On the morning of June 19, 2009, Detective Raymond Diaz obtained an arrest warrant for Jackson, and the police commenced a search for him. Officers later received information that Jackson was at a house in Cleveland Heights. On the evening of June 20, 2009, members of the SWAT team surrounded the house, and Jackson surrendered.

E. Jackson’s statements to police

{¶ 31} Detective Andrew Ezzo testified that Jackson was advised of his Miranda rights- after he was arrested and that Jackson waived those rights. Jackson then told Ezzo that his gun was in an upstairs closet of the home in which he had been found. After obtaining consent from the home’s resident, the police seized a Taurus Model .380-caliber handgun with a loaded magazine.

{¶ 32} Jackson was placed in a police cruiser after being arrested. Officer Michael Ryan testified that while asking Jackson routine questions for booking purposes, Jackson said, “[T]ake me to the chair. My life is over. * * * I didn’t mean to kill the bitch. * * * I just wanted to pop a round off to scare her.” He also said that he would “never give up his boys” and that he had “made his boy a little bit of money, and his money was buried for his daughter.”

{¶ 33} On the morning of June 22, 2009, Detective Diaz conducted a videotaped interview of Jackson. After waiving his Miranda rights, Jackson admitted shooting Pickryl. But Jackson said that he had been trying to scare her and had not intended to kill her.

{¶ 34} During the interview, Jackson described the Soap Opera Laundry robbery. He said that he borrowed a car from a friend and drove past the laundry a couple of times to make sure it was open. He parked the car two or three blocks from the laundry and walked there. Jackson said he approached the two women inside it and said, “Pm going to stick ya’ll up. Give me the money. Just be cool. Just give me the money ya’ll. That[’s] all I want.”

{¶ 35} He then explained how he shot Pickryl:

Yeah, she started playing with this little change, knowing that I wanted some real money. * * * And I’m like just give me the money. * * * Everything will be alright. * * * She wouldn’t give me the money. That’s when I tried to grab her necklace off her arm. She yanked back, and I’m like fuck it, man I’m gonna pop one, and let her know I’m not playin’. I popped one and she fell into it. That’s when I killed her. And then the other girl, she showed me where the money was, she gave me a pouch. I thought it was pretty much a lot of money in there, but it wasn’t shit.

Then like the other girl was crying. So I just shot one. I went around her head to make sure I didn’t hit her. Popped the gun, you know what I’m saying. Just so she know * * * just like chill the fuck out. And don’t run out of here.

(Emphasis added.) Jackson said that he left the laundry and then returned the car to his friend’s house, leaving the necklace in the car.

{¶ 36} As to the other offenses, Jackson admitted shooting Bentley and participating in the robberies in Sandusky and Lorain, but he claimed that Harrison had not been involved. Jackson also denied participating in the robberies of the Brickhouse Bar and Hobo Joe’s Bar.

F. The autopsy and other forensic evidence

{¶ 37} Dr. Elizabeth Balraj, a deputy coroner for Cuyahoga County, performed the autopsy on Pickryl and testified that Pickryl had a gunshot wound above her right eye. Dr. Balraj stated that an internal examination showed that the bullet entered the right side of the brain and traveled toward the back and left side of the brain.

{¶ 38} Dr. Balraj testified that she found stippling on the skin around the entrance wound. The pattern of stippling was compared with different patterns of stippling during test firings of the suspected murder weapon, which showed that the stippling found on Pickryl was consistent with the “type of pattern of stippling [that] appeared at the range of seven to nine inches from the muzzle of the gun to the target.” Dr. Balraj determined the cause of death to be the gunshot wound in the head with perforations of the skull and brain.

{¶ 39} James Kooser, a firearms examiner with the Cleveland police, examined the .380-caliber handgun found at the time of Jackson’s arrest. Kooser testified that he had examined the bullet recovered during the autopsy, but it was too damaged to make any comparisons to bullets fired from the suspected murder weapon. He had also examined a cartridge case and a spent bullet with a copper jacket found at the Soap Opera Laundry. Kooser testified, “This weapon, in my opinion, fired that 380 auto cartridge case and the spent bullet.”

G. Defense case

{¶ 40} Jackson testified on his own behalf and admitted shooting and killing Pickryl. He then discussed his family life, educational background, and employment history. Jackson also stated that he had been convicted of drug possession in 2004 and spent a year in prison after violating probation.

{¶ 41} During the summer of 2009, Jackson testified, he was using PCP, marijuana, and ecstasy, and he was drinking heavily. Jackson stated that he was on drugs during all the incidents, including the Soap Opera Laundry, and that he had not slept from June 15 to June 18, because of his constant drug use.

{¶ 42} Jackson said he “messed up real bad” in killing Pickryl, and he apologized to her family. He said, “I just killed an innocent person that ain’t did nothing to me[.] * * * And she was good, a good lady, from what I see.” Jackson added, “Whether the Court like it or not, I don’t really feel fucked up about killing nobody. It’s who I killed that pisses me off for real; do you know what I’m saying?”

{¶ 43} Jackson also testified, “I had no intentions to kill anybody when I came in there to rob the Soap Opera Laundry.” Jackson stated, “I was trying to intimidate her to hurry up,” and “I was trying to pop past the back of her head.” He claimed that Pickryl turned her head and “budged up” at the same time he fired the gun, causing her to be shot and killed.

{¶ 44} After shooting Pickryl, Jackson admitted, he thought about shooting Diaz, because he did not want to leave any witnesses. But Jackson said, “I couldn’t do it,” and so he had shot over her head. He testified that Diaz was screaming and that he fired to “shut her up” so he could get out of there, but he “wasn’t trying to kill nobody.”

{¶ 45} Jackson also described what led to his shooting Bentley. Jackson and Bentley had known each other for about five years. Jackson testified that he went to Bentley’s residence on the day before the shooting and they drank a couple of beers.

{¶ 46} Bentley asked Jackson what was in the bag that he had with him, and Jackson opened the bag and showed him it contained a gun and some jewelry. Bentley then asked Jackson if he could keep the bag for Jackson. Jackson replied that he was giving the bag to someone else and that it was not his. But Jackson let Bentley take the bag. As Jackson later got ready to leave, he asked Bentley for the bag. However, Bentley said, “Red took my keys and * * * I can’t get in the house.” Bentley asked Jackson to return in an hour. But when he returned an hour later, Bentley was gone.

{1Í47} Around 4:30 or 5:00 a.m. the next morning, Jackson testified, he returned to Bentley’s residence and banged on the door. Jackson stated that he could smell crack-cocaine smoke coming from inside the house and that a prostitute walked out the door as he arrived. Jackson entered the house and told Bentley that he needed his bag, but the bag was gone, and Jackson concluded that Bentley had sold it and used the money to buy crack cocaine. According to Jackson, “[Bentley] got to reaching for something, and I know that gun is in there, and that is a big gun. * * * I’m not about to get shot * * * so basically I hit him in the leg — tried to hit him somewhere so — because he was reaching!.]”

II. Case History

{¶ 48} Jackson was charged with three counts of aggravated murder for killing Pickryl. Count 31 charged Jackson with aggravated murder during an aggravated robbery, R.C. 2903.01(B). Count 32 charged him with aggravated murder during a kidnapping, R.C. 2903.01(B), and Count 33 charged him with aggravated murder by purposely killing Pickryl with prior calculation and design, R.C. 2903.01(A).

{¶ 49} Each of the aggravated-murder counts included three death-penalty specifications: course of conduct involving the purposeful killing or attempt to kill two or more persons (Pickryl, Diaz, and Bentley), R.C. 2929.04(A)(5), felony murder predicated on aggravated robbery, R.C. 2929.04(A)(7), and felony murder predicated on kidnapping, R.C. 2929.04(A)(7).

{¶ 50} As to other counts involving Pickryl, Count 36 charged Jackson with kidnapping, and Counts 34 and 35 charged the aggravated robbery of the Soap Opera Laundry and/or Pickryl. As to Diaz, Count 37 charged him with attempted murder, Counts 38 and 39 charged aggravated robbery, Count 40 charged felonious assault, and Count 41 charged kidnapping. As to Bentley, Count 1 charged Jackson with attempted murder, Counts 2 and 3 charged aggravated robbery, and Counts 4 and 5 charged felonious assault. Counts 6 and 42 were dismissed.

{¶ 51} As to the other robberies, Counts 7 though 30 charged Jackson with various offenses of aggravated robbery, robbery, kidnapping, and felonious assault. All the capital and noncapital counts included firearm specifications.

{¶ 52} Jackson pleaded not guilty to all charges and specifications.

{¶ 53} Following the completion of the state’s case, defense counsel made a Crim.R. 29 motion for acquittal. The three-judge panel denied the motion, but it deleted some language from various counts and specifications to conform the counts to the evidence.

{¶ 54} The three-judge panel found Jackson guilty of the three aggravated-murder counts and the accompanying death-penalty specifications. However, the panel found that Jackson was guilty of the course-of-conduct specification only as to Pickryl and Diaz. The panel also found Jackson guilty of all the noncapital counts and all the accompanying gun specifications and sentenced him accordingly-

{¶ 55} Following a mitigation hearing, the panel sentenced Jackson to death.

III. Issues on Appeal

{¶ 56} In this appeal, Jackson raises 14 propositions of law.

{¶ 57} The principal issues for review include the trial court’s decision to conduct a limited hearing regarding an issue under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002), the validity of the jury waiver, because it occurred soon after Jackson informed the court that he had a bad headache and was having trouble focusing, the jurisdiction of the Cuyahoga County Grand Jury over offenses occurring in different counties and the sufficiency of the indictment as to those offenses, and ineffective assistance of counsel during the penalty phase.

A. Pretrial and trial issues

1. Judicial bias by conducting an unrequested Atkins hearing (proposition of law No. I)

{¶ 58} Jackson contends that the trial court erred by ordering an Atkins hearing even though the defense had not requested it. He argues that the trial court’s action showed judicial bias and interfered with defense counsel’s conduct of the case. Even assuming that the trial court did not overstep its bounds, he maintains, the Atkins hearing was flawed.

a. Atkins and Lott

{¶ 59} On June 20, 2002, the Supreme Court ruled that the execution of a mentally retarded criminal violated the Eighth Amendment. Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). Atkins left to the states “ ‘the task of developing appropriate ways to enforce the constitutional restriction’ ” on executing the mentally retarded. Id. at 317, 122 S.Ct. 2242, quoting Ford v. Wainwright, 477 U.S. 399, 405, 416-417, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986).

{¶ 60} In State v. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, we developed procedures and substantive standards for resolving Atkins claims. Lott adopted a three-part test that had been cited with approval in Atkins at 308. The “Atkins test” defined mental retardation as “(1) significantly subaverage intellectual functioning, (2) significant limitations in two or more adaptive skills, such as communication, self-care, and self-direction, and (3) onset before the age of 18.” Id. at ¶ 12. Lott went on to state:

Most state statutes prohibiting the execution of the mentally retarded require evidence that the individual has an IQ of 70 or below. * * * While IQ tests are one of many factors that need to be considered, they alone are not sufficient to make a final determination on this issue. * * * We hold that there is a rebuttable presumption that a defendant is not mentally retarded if his or her IQ is above 70.

Id.

{¶ 61} Lott also held that the appropriate time to present an Atkins claim is at trial. Lott stated that “the trial court should consider defense Atkins claims, and hold hearings, in accordance with the standards set out in this opinion.” Id. at ¶ 25.

b. Facts

(1) Trial court orders a hearing

{¶ 62} Before trial, the court expressed concern about defense counsel’s strategy and trial preparation. On January 21, 2010, the trial court filed the following journal entry:

The court has scheduled a hearing on whether the defendant’s attorneys have truly prepared this case for trial or (A) have only planned to plead the defendant guilty to one or more charges and/or (B) have planned to under-represent the defendant and provide him with an ineffective assistance of counsel basis for later appeal. The hearing on this issue is set for 01/25/10 * * *.

{¶ 63} On January 25, 2010, defense counsel provided the court with information about its trial preparation. Defense counsel stated that Dr. John Fabian, a forensic and clinical psychologist, was meeting with Jackson and working on a report. Defense counsel informed the court that Dr. Fabian’s report would be completed and his opinion disclosed within two weeks.

{¶ 64} On March 4, 2010, defense counsel reported that Dr. Fabian had completed his report. Dr. Fabian analyzed Jackson’s IQ and reported that he had a full-scale IQ of 75.

{¶ 65} On March 19, 2010, the trial court filed a journal entry ordering “defense counsel to file any request for an Atkins hearing setting forth the factual foundation for such a hearing.” In the same entry, the court advised, “If no such filing is made, then the court will conduct a record hearing to establish why defense counsel refrained from requesting an Atkins hearing.”

{¶ 66} During subsequent proceedings, defense counsel informed the court that they had consulted with Dr. Fabian and would not be filing a request for an Atkins hearing. The trial court responded:

Well, it came to the Court at the last hearing, last pretrial, that I did want to have a hearing to build a record to establish that the Atkins issue was considered, diligently investigated, and a justifiable decision made to pursue it or not.

That was because the IQ information were the numbers that they were.

While the Court is not surprised with your decision that you won’t pursue the Atkins issue, I think there is a couple of ways to go at this.

First of all, we could take both Doctor Aronoffs addressing of the mental retardation issue in his sanity or competency reports and seal that up with Doctor Fabian’s report on that issue.

So that would be one way, building a record under seal to justify the defense’s determination on the Atkins hearing.

I’m not sure we need to go beyond that.

Because the numbers are what they are, I think we would be better served to do a brief hearing.

{¶ 67} Defense counsel then stated, “After going through the report and consulting with our expert, * * * Dr. Fabian, we’re most comfortable saying that we choose not to pursue that issue at this time and, therefore, that is why we did not file an Atkins brief.” Defense counsel stated that Dr. Fabian might be called as a mitigation witness. He also added, “I’m uncomfortable with 'putting [Dr. Fabian] on the stand or to testify, whether it be by phone or in person, to give the government access to him, the record access to his testimony, before we actually call him as our witness.”

{¶ 68} The trial court responded that the state would not be permitted to talk about anything other than the mental-retardation issue. The trial court also said, “When you say we’re not raising the issue at this time, let me remind you this is the only time you can raise it.” The trial court added:

The fact that it’s a do or die, do it now or don’t do it at all, is why I was the person that came up with wanting to have a record hearing to * * * build a record on why it wasn’t being done.

Otherwise with the numbers that are being bandied about by Dr. Fabian and Dr. Aronoff, * * * someone could second guess, well, we have, * * * with the Flynn affect [sic] this and that, something could have been done with it.

{¶ 69} Defense counsel reiterated, “After consultation with Dr. Fabian, both my co-counsel and I, based on his advice as to whether or not we would succeed or fail on that issue, we chose not to go there, not to pursue it.” The trial court replied, “But, see, how do I know he considered the Flynn affect [sic]?” The trial court also mentioned that Dr. Aronoff did only four subtests of the Wechsler IQ test and that the court did not know how many subtests Dr. Fabian had completed in testing Jackson’s IQ.

(2) Hearing conducted

{¶ 70} On March 22, 2010, the trial court held a limited hearing on the Atkins issue. Dr. Michael Aronoff, a psychologist with the Cuyahoga County Court Psychiatric Clinic, testified that he had conducted a competency and sanity evaluation of Jackson. Dr. Aronoff evaluated Jackson by using the Vocabulary and Matrix Reasoning subtests of the Wechsler Abbreviated Scale of Intelligence (‘WASI”). He testified that Jackson obtained a full-scale IQ score of 87 and that “with 95 percent certainty * * * the defendant’s true full scale IQ score lies within the range of 82 to 93.”

{¶ 71} Dr. Aronoff also testified that Jackson’s IQ had been evaluated with the General Ability Measure for Adults (“GAMA”) in 2003 and 2007. Jackson’s GAMA IQ score was 87 in 2003 and 93 in 2007. Dr. Aronoff stated that the GAMA focuses primarily on performance-related tasks. He said, “It’s a group administered intelligence test that is often used in a setting such as prison because it affords one the opportunity to get a gross estimate of someone’s intellect without having to give an IQ test one on one.”

{¶ 72} Dr. Aronoff reviewed the results of the Wechsler Adult Intelligence Scale, Fourth Edition (“WAIS-IV”), that Dr. Fabian administered to Jackson. Jackson’s IQ score was 75 on the WAIS-IV. Dr. Aronoff stated that the standard error of measurement (“SEM”) for the WAIS-IV IQ test administered to a person of Jackson’s age (30 years old) is 2.12. He concluded that “the examiner can say with 95 percent confidence that based on [the] full scale IQ score of 75 on the WAIS IV taking into consideration [the] standard error of measurement and other day to day factors, that an individual’s IQ score lies within the range of 71 to 80.”

{¶ 73} Dr. Aronoff also testified that none of the records he was provided with suggested that Jackson met the second part of the Atkins test — onset of mental retardation before the age of 18. He said, “[F]rom the records that I reviewed there was nothing to suggest that he has been tested or that he was mentally retarded.”

{¶ 74} During a telephone interview, Dr. Fabian explained that he was comfortable with the defense decision not to pursue an Atkins hearing. He stated that he had met with Jackson on seven occasions for a total of about ten hours, interviewed various family members, and reviewed Jackson’s school records. Based on his review, Dr. Fabian stated that he did not believe that Jackson was mentally retarded. He added, “My ethics say if I believe this person is incompetent or mentally retarded, I would indicate that to them.” But, Dr. Fabian said, “It’s my opinion that it’s not there.”

{¶ 75} Dr. Fabian confirmed that Jackson’s IQ score was 75 on the WAIS-IV and that his score was not inconsistent with Jackson’s IQ score on the test administered by Dr. Aronoff. Dr. Fabian stated, “I gave him a full IQ test. His overall percentage range was five percentile, so he’s scoring lower with me. But I wouldn’t say that is inconsistent because [Dr. Aronoff] only gave like two of the ten subtests that I would give.”

{¶ 76} The trial court concluded the hearing following Dr. Fabian’s testimony but made no findings as to whether Jackson was mentally retarded under Atkins.

c. Analysis

(1) Judicial bias

{¶ 77} Jackson argues that the trial court exhibited bias in conducting an Atkins hearing that defense counsel did not request.

{¶ 78} “It is well settled that a criminal trial before a biased judge is fundamentally unfair and denies a defendant due process of law.” State v. LaMar, 95 Ohio St.Sd 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 34, citing Rose v. Clark, 478 U.S. 570, 577, 106 S.Ct. 3101, 92 L.Ed.2d 460 (1986). “Judicial bias has been described as ‘a hostile feeling or spirit of ill will or undue friendship or favoritism toward one of the litigants or his attorney, with the formation of a fixed anticipatory judgment on the part of the judge, as contradistinguished from an open state of mind which will be governed by the law and the facts.’ ” State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶ 48, quoting State ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph four of the syllabus.

{¶ 79} First, Jackson asserts that the trial court’s order to conduct an Atkins hearing shows that the judge was upset with counsel’s diligence in preparing his case and was harboring a bias against the defense. The trial court expressed concern about defense counsel’s trial preparation and strategy during pretrial proceedings. But a hearing was conducted on this matter, and defense counsel provided the court with information that showed that the defense was diligently preparing for trial. Nothing shows that the trial court harbored bias against defense counsel as a result of early concerns that prompted the court to order a hearing.

{¶ 80} Jackson refers to the trial court’s hearing as a “reverse-Atkins hearing,” because it was conducted to show that he was not mentally retarded. However, this is a misnomer, and the record does not indicate that the hearing was held for this purpose. Instead, the trial court conducted the hearing to ensure that Jackson received a fair trial and to ensure the appropriateness of proceeding to trial with a potential death sentence. The trial court emphasized the importance of holding the hearing, because an Atkins hearing must be conducted during the trial and not later. See State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 155 (defendant waives an Atkins claim by not raising it at trial). It is also clear that the trial court conducted the hearing with an open mind and would have ordered a further evaluation of Jackson if the evidence indicated that he might be mentally retarded.

{¶ 81} Jackson cites Dean as supporting his claim. In Dean, the trial court made accusatory and threatening comments toward counsel during trial and denied counsel reasonable opportunities to consult with the defendant. 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, at ¶ 51 and 53. Moreover, the trial court suggested that counsel had manipulated, defrauded, and deceived the court in attempting to disqualify the judge from sitting on the trial. Id. at ¶ 22 and 51. Indeed, the trial court found counsel in direct criminal contempt after the trial and fined them each $2,000. Id. at ¶ 46.

{¶ 82} Here, the trial court exhibited no ill will toward the defense by ordering the hearing. It listened to Dr. Aronoff s and Dr. Fabian’s evaluation of Jackson’s IQ scores and heard their opinion that Jackson did not meet the Atkins criteria. Nothing in the record indicates that the trial court was biased against defense counsel.

{¶ 83} Second, Jackson argues that the trial judge’s overzealous desire to build a record evinced a bias in favor of the state, which was seeking the death penalty.

{¶ 84} There is no evidence to support this claim. Defense counsel averred that Jackson was not mentally retarded and was thus eligible for the death penalty. The hearing elicited opinions and testimony that might have shown that Jackson was mentally retarded and thus not eligible for the death penalty. Thus, there is no basis to conclude that bias existed on the part of the judge.

{¶ 85} Finally, Jackson invokes State v. Gillard, 40 Ohio St.3d 226, 533 N.E.2d 272 (1988), overruled in part on other grounds, State v. McGuire, 80 Ohio St.3d 390, 402-403, 686 N.E.2d 1112 (1997), and argues that the trial court should have appointed another judge to conduct the Atkins hearing so that the sitting judge would not have been influenced by the adduced evidence. Gillard holds, “When the state seeks to obtain relief from discovery or to perpetuate testimony under Crim.R. 16(B)(1)(e) [now Crim.R. 16(D)(1)], the judge who disposes of such a motion may not be the same judge who will conduct the trial.” Id. at paragraph one of the syllabus. Gillard adopted this rule because “when a judge hears information [while conducting a pretrial hearing] that a defendant has attempted to harm, coerce, or intimidate an opposing witness, there is an unnecessary risk that the judge will harbor a bias against that defendant.” Id. at 229.

{¶ 86} Gillard, however, is inapposite. Testimony about mental retardation is not similar to testimony that the defendant may have intimidated witnesses, nor did Jackson argue convincingly otherwise. Thus, the trial court did not need to appoint another judge to.conduct an Atkins hearing.

(2) Interference with defense counsel

{¶ 87} Jackson argues that the trial court improperly interjected itself into the defense function after trial counsel informed the court that it was not going to raise an Atkins defense.

{¶ 88} Every trial court has a responsibility to conduct a trial in an orderly fashion and to ensure that a defendant receives a fair trial. See State v. Fears, 86 Ohio St.3d 329, 353, 715 N.E.2d 136 (1999) (Moyer, C.J., dissenting). However, “trial courts cannot interfere with counsel’s trial tactics or representation of their clients.” State v. Hill, 75 Ohio St.3d 195, 212, 661 N.E.2d 1068 (1996).

{¶ 89} First, Jackson argues that the trial court’s interference with his counsel’s strategy undermined his confidence in counsel. However, Jackson’s generalized claim fails to explain how the trial court’s action had any adverse impact on the attorney-client relationship. Thus, we reject this claim.

{¶ 90} Second, Jackson argues that the court’s interference with the defense case resulted in a skewed assessment of his low intelligence, because a full evaluation was not conducted to determine whether he was mentally retarded. Jackson asserts that this resulted in an improper assessment of his low intelligence as a mitigating factor. However, nothing in the record indicates that Dr. Fabian’s later mitigation testimony about Jackson’s low intelligence was skewed as a result of his failure to conduct a full evaluation of Jackson for Atkins purposes. Accordingly, we also reject this claim.

{¶ 91} Finally, Jackson argues that the court’s interference in defense counsel’s strategy may have precluded him from raising an Atkins claim during future postconviction proceedings. Jackson asserts that if a full adaptive-functioning investigation had been completed, he might have been found to be mentally retarded. But he argues that such claims can now be dismissed on the basis of res judicata. We also reject this argument.

{¶ 92} Under the doctrine of res judicata, a defendant cannot raise an issue in a postconviction petition if he or she raised or could have raised the issue at the trial that resulted in that judgment of conviction or on'an appeal from that judgment. State v. Szefcyk, 77 Ohio St.3d 93, 96, 671 N.E.2d 233 (1996); State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the syllabus.

{¶ 93} Here, the trial court conducted the hearing because Jackson would have waived his Atkins claim if he had not raised it at trial. See Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, at ¶ 155 (an Atkins claim can be waived). Moreover, as the United States Supreme Court has stated, a “ ‘procedure does not run foul of the Fourteenth Amendment because another method may seem to our thinking to be fairer or wiser or to give a surer promise of protection to the prisoner at the bar.’ ” Leland v. Oregon, 343 U.S. 790, 799, 72 S.Ct. 1002, 96 L.Ed. 1302 (1952), quoting Snyder v. Massachusetts, 291 U.S. 97, 105, 54 S.Ct. 330, 78 L.Ed. 674 (1934); see also Medina v. California, 505 U.S. 437, 451, 112 S.Ct. 2572, 120 L.Ed.2d 353 (1992) (“The Due Process Clause does not * * * require a State to adopt one procedure over another on the basis that it may produce results more favorable to the accused”).

{¶ 94} Furthermore, Jackson’s claim that he might have been found to be mentally retarded if a full adaptive-functioning test had been completed is speculative. This argument also overlooks the requirement that all three parts of the Atkins test be met before a defendant can be found to be mentally retarded. Lott, 97 Ohio St.3d 303, 2002-Ohio-6625, 779 N.E.2d 1011, at ¶12. Even if additional testing had shown lower adaptive functioning, Jackson has made no showing that he met the remaining parts of the Atkins test.

(3) Failure to conduct a complete Atkins hearing

{¶ 95} Jackson argues that even assuming that the trial court did not overstep its boundaries in ordering a hearing, the trial court failed to conduct a proper Atkins hearing. Jackson argues that the trial court failed to consider the second prong of the mental-retardation definition: “significant limitations in two or more adaptive skills, such as communication, self-care, and self-direction.” Id. at ¶ 12. Jackson also argues that the trial court failed to consider the Flynn effect and the SEM in considering his IQ scores.

{¶ 96} In this instance, the trial court did not conduct an Atkins hearing. The trial court held a hearing “to build a record to establish that the Atkins issue was considered, diligently investigated, and a justifiable decision made to pursue it or not.” The trial court focused on the intellectual-functioning part of the mental-retardation definition. Dr. Aronoff and Dr. Fabian addressed Jackson’s IQ scores and explained that they were above 70. Pursuant to Lott, his IQ scores raise a rebuttable presumption that he is not mentally retarded. Lott at ¶ 12.

{¶ 97} The trial court also considered the Flynn effect in evaluating Jackson’s IQ scores. Dr. Aronoff discussed the Flynn effect and the theory that “generations get smarter over time,” and he acknowledged that a test that was “standardized 25 years before, because of the Flynn effect, * * * might be inaccurate” and a “score of 80 might actually be lower.”

{¶ 98} In addition, the trial court considered the SEM in evaluating Jackson’s full-scale IQ score of 75. Dr. Aronoff testified that “[ajccording to the WAIS IV manual the standard error of measurement for similarly aged persons as Mr. Jackson is 2.12.” He stated that there is a 90 percent certainty that Jackson’s full-scale IQ score lies within the range of 72 to 79 and that “[f]or the 95 percent confidence interval it would be 71 to 80.”

{¶ 99} Finally, Jackson is not claiming that he is mentally retarded. Thus, Jackson’s complaint that the trial court conducted an abbreviated Atkins hearing makes no difference to the outcome of the case. Jackson was not prejudiced by the hearing, because the court did not conduct an Atkins hearing nor did it reach a conclusion or journalize an entry to that effect, but rather it elicited expert testimony to demonstrate that the matter had been considered.

d. Conclusion

{¶ 100} Based upon Jackson’s IQ scores and the possible impact of the Flynn effect, the trial court was justified in inquiring into whether an evaluation of Jackson’s mental abilities was appropriate. In that regard, the trial court did not demonstrate judicial bias or unduly interfere with defense counsel’s function by eliciting that testimony.

{¶ 101} The trial court’s decision to conduct an evidentiary hearing on the Atkins issue did not prejudice Jackson and could have been favorable to his defense. No evidence was presented showing that Jackson was mentally retarded. Thus, even assuming that the trial court overstepped its bounds in conducting this abbreviated hearing, no prejudice occurred. Accordingly, we reject proposition of law No. I.

2. Jury waiver (proposition of law No. II)

{¶ 102} Jackson argues that his waiver of a jury trial was not voluntary, knowing, and intelligent, because he told the court that his head was “banging” and he was unable to focus during the trial court’s waiver inquiry.

a. Jury-waiver inquiry

{¶ 103} During a pretrial hearing, Jackson submitted his written waiver of a jury trial to the trial court and informed the court that he had fully discussed his rights to a jury trial with defense counsel before signing the waiver. The trial court then reviewed the written waiver with him and explained the consequences of waiving a jury trial. The following exchange occurred:

THE COURT: And it says — it goes on to say you’re not under the influence of any drugs, alcohol or medication that would affect your decision. Does the doctors [sic] have you on any drugs or medication of any kind?

THE DEFENDANT: I feel sick, but other than that.

THE COURT: When you say you feel sick, do you have a head cold or upset stomach? What?

THE DEFENDANT: My head is banging right now. I didn’t get a chance to get in the shower, nothing. They just totally woke me up and said you’re going to court. So I’m like just out of it. I didn’t get a chance to pull myself together in court.

THE COURT: If you are in jail right now and your head was pounding, what could you do about it?

THE DEFENDANT: I would probably be taking Tylenol, probably get some water. I’m probably dehydrated.

THE COURT: You know it’s about 3:20 in the afternoon. Did they give you lunch?

THE DEFENDANT: Yeah, I had a bologna sandwich and bread.

THE COURT: Did you have any liquid?

THE DEFENDANT: No.

THE COURT: Okay. Well, we’re going to arrange for some paper cups. If we have water brought, will that help?

THE DEFENDANT: Yes.

THE COURT: Are you well enough for me to move on with this, or do you want to take a rest?

THE DEFENDANT: I’m alright.

THE COURT: If you change your mind, you will tell me, right?

THE DEFENDANT: Yes.

THE COURT: I’m not happy to hear that your head is pounding. I know what that is like. That is not good.

{¶ 104} The trial court then continued to explain the jury waiver. It discussed mitigation and explained that all 12 jurors would have to agree on a death sentence. The trial court also explained the life sentences that a jury might impose. As the questioning progressed, the trial court noted that Jackson was provided some water. Shortly thereafter, the following discussion ensued:

THE COURT: * * * If [the jury] cannot unanimously agree on a life sentence, then the matter of the sentence is out of their hands and given to the trial Judge to pick a life sentence. Have I confused you?

THE DEFENDANT: My head hurts. I can’t really focus right now.

MR. MULLEN [Defense counsel]: He said his head hurts. He’s a little delusional. That is why we got the water. He ate, but I don’t think he had any water.

THE DEFENDANT: I understand a little, little by little.

THE COURT: I’ll give you an opportunity here in a minute to talk to your lawyers, too.

{¶ 105} The trial court explained that a three-judge panel would decide Jackson’s case if he waived a jury trial. It also provided an explanation about how a three-judge panel would decide Jackson’s case. The trial court then gave Jackson an opportunity to confer with counsel before concluding the inquiry. The trial court then finished the colloquy with Jackson about the waiver:

THE COURT: Any questions Mr. Jackson?

THE DEFENDANT: No, Ma’am.

THE COURT: You want more water?

THE DEFENDANT: No. I’m all right. Thank you.

THE COURT: What?

THE DEFENDANT: No thank you.

THE COURT: Okay. As I said earlier, Mr. Mullen did sign the certification that everything has been explained to you. Any questions at all in your mind, Mr. Jackson, about the wisdom of waiving your jury trial?

THE DEFENDANT: No, Ma’am.

THE COURT: You’re sure this is what you want to do?

THE DEFENDANT: Yes, Ma’am.

THE COURT: Okay. I’m going to find this was an intelligent, voluntary and knowingly made decision on Mr. Jackson’s part to waive his jury trial.

b. Jury-waiver requirements

{¶ 106} A jury waiver must be voluntary, knowing, and intelligent. Crim.R. 23; State v. Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 37. If the record shows a jury waiver, the conviction will not be set aside except on a plain showing that the defendant’s waiver was not freely and intelligently made. Fitzpatrick at ¶ 37. Moreover, a written waiver is presumptively voluntary, knowing, and intelligent. See United States v. Sammons, 918 F.2d 592, 597 (6th Cir.1990); State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, ¶ 49.

{¶ 107} R.C. 2945.05 requires that a “waiver of trial by jury must be made .in open court after the defendant has been arraigned and has had opportunity to consult with counsel.” But “[t]here is no requirement for a trial court to interrogate a defendant in order to determine whether he or she is fully apprised of the right to a jury trial.” State v. Jells, 53 Ohio St.3d 22, 559 N.E.2d 464 (1990), paragraph one of the syllabus. Indeed, “a defendant need not have a complete or technical understanding of the jury trial right in order to knowingly and intelligently waive it.” State v. Bays, 87 Ohio St.3d 15, 20, 716 N.E.2d 1126 (1999). Rather, to comply with R.C. 2945.05, this court has held:

We do not mandate magic words, or a prolonged colloquy, but simply what Ohio law intends — that a defendant while in the courtroom and in the presence of counsel, if any, acknowledge to the trial court that the defendant wishes to waive the right to a jury trial.

State v. Lomax, 114 Ohio St.3d 350, 2007-Ohio-4277, 872 N.E.2d 279, ¶ 48.

c. Analysis

{¶ 108} Jackson challenges the validity of his jury waiver because he told the court during the waiver proceedings that his head was “banging” and he lacked focus, and defense counsel told the court that Jackson was a “little delusional.”

{¶ 109} Jackson informed the trial judge in open court that he was waiving his right to a jury trial. This was all that was necessary to satisfy R.C. 2945.05. Further questioning was not required to ensure that Jackson understood all the rights to a jury trial that he was giving up. See State v. Sanders, 188 Ohio App.3d 452, 2010-Ohio-3433, 935 N.E.2d 905, ¶ 13-15 (10th Dist.).

{¶ 110} Moreover, Jackson does not challenge the waiver form that he signed waiving a jury trial. As previously discussed, a written waiver is presumptively voluntary, knowing, and intelligent. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, at ¶ 49. Jackson’s written waiver stated that he voluntarily waived his right to a jury and elected to be tried by a three-judge panel. The waiver acknowledged that he understood that he had the right to a “jury of twelve, and that no verdict could be made by a jury except by agreement of all twelve members of that jury.” The waiver stated that “no threats or promises have been made to induce me to waive this right, and * * * I am not under the influence of any drugs, alcohol, or medication that would affect my decision.” Here, Jackson has failed to overcome the presumption that his written waiver was voluntarily, knowingly, and intelligently made.

{¶ 111} Nevertheless, Jackson argues that the trial court ignored his complaint that he had a headache during the waiver inquiry. But the trial court did not ignore Jackson’s complaint and asked Jackson about his headache and feeling sick. Jackson replied that he was probably dehydrated, because he did not have anything to drink during lunch. The trial court then took steps to respond to Jackson’s complaints. Jackson was given some water. The trial court also afforded Jackson the opportunity to take a break before the questioning proceeded. But Jackson said that he was all right, and the inquiry continued. Under these circumstances, the trial court could accept Jackson’s assurances and continue with the waiver inquiry.

{¶ 112} Jackson also complains that the trial court should have stopped the proceedings after he repeated that he had a headache and said, “I can’t really focus right now.” That comment was a continuation of his earlier complaint about being dehydrated. Moreover, neither Jackson nor counsel asked for a recess or a continuance. Thus, the court had no reason to interrupt its jury-waiver colloquy.

{¶ 113} Jackson argues that the trial court ignored defense counsel’s statement that he was “delusional.” Jackson interprets counsel’s comment as raising a question whether he had a psychological problem. Accordingly, Jackson argues that the trial court should have called a recess and referred him to the court clinic for an evaluation. However, defense counsel’s comment, “He’s a little delusional,” was followed by counsel’s statement, “That is why we got the water.” This shows that defense counsel was talking about Jackson’s dehydration and not a psychological problem.

{¶ 114} Dr. Aronoff had found Jackson competent to stand trial. Jackson’s complaints about having a headache and being unable to focus were not sufficient to undermine that determination. The trial court could also rely on its own observations because Jackson had appeared before the court on previous occasions. Moreover, Jackson’s own counsel never challenged Jackson’s ability to understand the jury waiver. See State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 72. “[FJactual determinations are best left 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).

{¶ 115} As a final matter, Jackson argues that the trial court’s acceptance of his jury waiver after he had complained about his headache and defense counsel had stated that he was delusional constituted structural error.

{¶ 116} However, no error occurred in the trial court’s acceptance of Jackson’s jury waiver. Thus, we also reject Jackson’s structural-error argument.

{¶ 117} Based on the foregoing, proposition of law No. II is overruled.

3. Jurisdiction and venue: offenses in different counties (proposition of law No. Ill)

{¶ 118} Jackson argues that the Cuyahoga County Grand Jury did not have jurisdiction to indict him for offenses occurring in Lorain and Erie Counties. He also argues that Cuyahoga County was not the proper venue in which to try the offenses committed outside Cuyahoga County.

a. Background

{¶ 119} In this case, the Cuyahoga County Grand Jury indicted Jackson for the robbery of a Howard Johnson’s in Erie County (Counts 19 through 21) and the robbery of the Walgreens Drug Store in Lorain County (Counts 22 through 31). Notably, Jackson did not object during trial to the indictment for the offenses occurring in Erie or Lorain County or the trial court’s venue or jurisdiction over those offenses.

b. Analysis

(1) Constitutional and statutory law

{¶ 120} The Ohio Constitution, Article I, Section 10, provides that “no person shall be held to answer for a capital, or otherwise infamous, crime, unless on presentment or indictment of a grand jury.” R.C. 2939.08 sets forth the duties of a grand jury: “After the charge of the court of common pleas, the grand jury shall retire with the officer appointed to attend it, and proceed to inquire of and present all offenses committed within the county.” (Emphasis added.)

{¶ 121} As to venue, Article I, Section 10 states that an accused is entitled to “a speedy trial by an impartial jury of the county in which the offense is alleged to have been committed.”

{¶ 122} R.C. 2901.12, Ohio’s venue statute, provides:

(A) The trial of a criminal case in this state shall be held in a court having jurisdiction of the subject matter, and in the territory of which the offense or any element of the offense was committed.

(H) When an offender, as part of a course of criminal conduct, commits offenses in different jurisdictions, the offender may be tried for all of those offenses in any jurisdiction in which one of those offenses or any element of one of those offenses occurred. Without limitation on the evidence that may be used to establish the course of criminal conduct, any of the following is prima-facie evidence of a course of criminal conduct:

(1) The offenses involved the same victim, or victims of the same type or from the same group.

* * *

(5) The offenses involved the same or a similar modus operandi.

(6) The offenses were committed along the offender’s line of travel in this state, regardless of the offender’s point of origin or destination.

(2) Jurisdiction of the Cuyahoga County Grand Jury: offenses in Erie and Lorain Counties

{¶ 123} In support of his argument that the Cuyahoga County Grand Jury lacked jurisdiction to indict him for offenses that occurred outside Cuyahoga County, Jackson cites State v. Nevius, 147 Ohio St. 263, 268-269, 71 N.E.2d 258 (1947).

{¶ 124} Nevius recognized: “A grand jury may inquire of and present only such offenses as have been committed within the county for which such grand jury was impaneled and sworn.” Id. at 263. In Nevius, the defendant was charged with bribery that occurred in Clark County, where the indictment was returned and where the trial was held. Id. at 265. However, the state presented no evidence at trial showing where Nevius accepted the bribe. The only evidence was the defendant’s testimony that the alleged bribe, an automobile, had been delivered to him in Montgomery County. Id. at 267. On appeal, this court concluded that there was a failure of proof that the defendant had accepted the bribe in Clark County and held that he should not have been indicted and tried for that offense in Clark County. Id. at 269.

{¶ 125} Jackson also cites State v. Centers, 5th Dist. Delaware No. 82-CA-38, 1983 WL 6551 (July 19,1983), which followed the Nevius rationale and reversed a conviction for offenses that occurred outside Delaware County, where the grand jury was impaneled. In Centers, the Delaware County Grand Jury returned a multiple-count indictment for various felonies, none of which had occurred within Delaware County. Id. at *1. In reversing the convictions, the court cited R.C. 2938.08, which the court said “plainly states that a Grand Jury’s power to hear a cause is limited to offenses committed within the county.” Id. at *2. The court added, “Failure to satisfy these provisions constitute^] a failure of the Grand Jury to gain jurisdiction, or power, over the subject matter involved.” Id.

{¶ 126} The state responds that the rationale of State v. Ahmed, 8th Dist. Cuyahoga No. 84220, 2005-Ohio-2999, 2005 WL 1406282, supports a finding that the Cuyahoga County Grand Jury had authority to indict Jackson for offenses that occurred outside the county. Ahmed held that the Cuyahoga County Grand Jury had jurisdiction to indict the defendant for a series of sexual offenses that occurred in Cuyahoga, Geauga, and Summit Counties because all the offenses were part of the same course of criminal conduct that occurred in Cuyahoga County. Id. at ¶ 11.

{¶ 127} Ahmed relied on R.C. 2901.11, which grants jurisdiction to Ohio courts over criminal offenses that occur in Ohio. The statute provides that “[a] person is subject to criminal prosecution and punishment in this state if * * * [t]he person commits an offense under the laws of this state, any element of which takes place in this state.” R.C. 2901.11(A)(1). Thus, the court concluded that the trial court