State v. Pickens (141 Ohio St. 3d 462, 2014)

PfeifeR, J.

{¶ 1} This is an appeal of right by defendant-appellant, Mark Pickens, who was convicted of the aggravated murders of Noelle Washington, her nine-month-old son, Anthony Jones III, and three-year-old Sha’railyn Wright. A jury recommended the death sentence for the three murders, and the trial court sentenced Pickens to death.

{¶ 2} For the following reasons, we affirm Pickens’s convictions and sentence of death.

I. Trial Evidence

{¶ 3} Evidence introduced at trial showed that Pickens shot and killed Noelle and the two children in Noelle’s Cincinnati apartment after Noelle reported to the police that Pickens had raped her two days earlier.

A. Noelle’s and Pickens’s relationship

{¶ 4} Noelle and Pickens began dating in February 2009. Noelle was planning, however, to end their relationship and move to Nashville, Tennessee, to live with her sister, Tamika Washington.

B. The rape

{¶ 5} Around 10:30 a.m. on May 31, 2009, Noelle went to Pickens’s residence at Gateway Plaza Apartments in Cincinnati. About an hour and a half later, Noelle stumbled into the hallway, apparently pushed out, her pants below her hips. Noelle went to a neighboring apartment, pounded on the door, and screamed for help.

{¶ 6} Darlene Tucker lived in that apartment. Tucker testified that Noelle beat on her door, screaming, “[P]lease, help me, let me in before he gets me.” Tucker opened the door and let Noelle inside. Noelle was hysterical and said that her boyfriend had a gun and had raped her. Tucker said that Noelle’s hair was messy, she was sweating profusely, and she kept pulling up her pants around the waist. At Noelle’s behest, Tucker called 9-1-1.

{¶ 7} At 12:30 p.m., Officer Marian Jenkins of the Cincinnati police met with Noelle at Tucker’s apartment. Noelle said that she had been raped by Mark Pickens and described what happened. Noelle said she had gone to Pickens’s apartment to have sex with him. But when Pickens started acting “funny,” she decided that she did not want to have sex. Noelle told Pickens, “[N]o, no, I am not staying. I don’t want to.” Noelle said that Pickens then pulled out a gun and laid it on the bed. Noelle said that they then had sex. Afterwards, Pickens left the building but Noelle did not know where he went. Noelle was then transported to the police department.

{¶ 8} At 1:20 p.m. on May 31, Detectives Chris Schroder and Stephanie Broxterman conducted an audio-taped interview of Noelle. Noelle stated that she went to Pickens’s apartment at his invitation. According to Noelle, they talked at first and then started wrestling around. But he started playing rough and she told him to stop. Noelle told Pickens that she was going to leave, and Pickens told her, “I was fixing to get some pussy.” Noelle repeated that she “didn’t want to do it” and wanted to leave. Pickens replied, “[Y]ou ain’t about to leave. We about to do it.” Noelle said that Pickens then took a gun out of the dresser drawer and placed it on top of the dresser. He then started taking off Noelle’s clothes.

{¶ 9} Noelle stated that she told Pickens that she needed to use the bathroom. But Pickens followed Noelle there and forced her back into the bedroom. Pickens then resumed removing her clothes, got on top of her, and had vaginal sex with her. When they finished, Noelle said that Pickens “started hitting me around.” With the gun in his hand, he told Noelle, “I am going to kill us both and take us out of our misery.”

{¶ 10} When Noelle told Pickens that she was calling the police, Pickens tried to take her phone from her. He pulled her hair, choked her, and punched her until he got the phone. Pickens then pushed Noelle into the hallway and continued hitting her. Noelle said that she grabbed the phone from him, thinking that it was hers, but she later discovered that she had taken Pickens’s phone.

{¶ 11} Noelle stated that she and Pickens had exchanged text messages since the rape. Noelle said that Pickens asked her why she had called the police and asked her if she was “going to try to set [him] up.” Noelle also said that Pickens’s mother had called her after the rape and told her that Pickens knew that Noelle had been with the police.

{¶ 12} During follow-up questioning, Noelle said that Pickens had hit her approximately 25 times and struck her in the face three times. Noelle said that she had been wearing only a t-shirt when she was pushed into the hallway, and she got dressed inside the neighbor’s apartment.

{¶ 13} During the interview, Noelle agreed to call Pickens and confront him about the rape. During the recorded phone call, Noelle confronted Pickens and asked, “Why did you have sex with me when you know that I didn’t want you to?” Pickens responded, “I didn’t have sex with you.” Despite continued accusations, Pickens said repeatedly that he had not had sex with Noelle or hit her. During the conversation, Pickens said, “You * * * put a warrant out on me.” Noelle replied, “No, they wanted me to talk to them but I didn’t. I love you.” But Pickens said, “You was talking to them. You told them everything.”

{¶ 14} Following the police interview, Noelle went to the hospital for a rape exam. Kathleen Ferrara, a sexual-assault nurse examiner, examined Noelle. Noelle told Ferrara that she went to Pickens’s apartment because he owed her money. Noelle said that Pickens started playing rough and insisted on having sex. Noelle told him that she did not want to have sex, and he started hitting and choking her. Noelle said, “I closed my legs together, but he pried them open. I was crying, telling him to stop.” He then started “doing it” to her.

{¶ 15} Ferrara’s examination showed that’Noelle’s lip was swollen and she had a bite mark on the right upper lip. There were also lacerations on her neck that were consistent with scratching. Ferrara also observed a laceration and bite mark on Noelle’s chest, a laceration on her shoulder, a bite mark on her right thigh, and bruises on her left inner calf and left knee. Ferrara testified that these were fresh injuries that were consistent with Noelle’s statement that Pickens had pried her legs open. Noelle suffered a laceration to her right inner labia that was approximately three centimeters long and a laceration to the left inner labia that was approximately two centimeters in length. Ferrara testified that these injuries were “consistent with someone that is not * * * having consensual sex.”

{¶ 16} At 10:44 a.m. on June 1, 2009, Schroder and Broxterman went to Pickens’s apartment to question him. Schroder knocked on Pickens’s door and received no answer. Schroder then wrote “please call me” on the back of a business card and left the card in the door.

C. Events between Noelle’s rape and her murder

{¶ 17} Crystal Lewis, Noelle’s friend and Sha’railyn Wright’s mother, testified that on the afternoon of May 31, she talked to Noelle on the phone. Noelle said that she was at the hospital because “Mark raped me” and “hit me” and left “marks and bruises all over my body.” Noelle also thought that Pickens had her house keys because she left them at his apartment.

{¶ 18} Gwendolyn Washington, Noelle’s mother, testified that on the afternoon of May 31, she was with her son, Derrick Lee. During that time, she received a text message from Noelle’s phone stating, “This MARK I DO NOT WANNA BE WIT YO DAUGHTER.” Derrick testified that on that same afternoon, Noelle called him. Noelle was crying and kept repeating that “he raped me.” Noelle also talked to her mother and told her that Pickens had raped her and that she was at the hospital.

{¶ 19} Tamika Washington, Noelle’s sister, testified that on May 31, Noelle called screaming, “[H]e beat me up, he beat me up,” and hung up. Tamika then called Noelle’s phone number, and a male answered. He stated, “You fat bitch, quit calling the phone,” and hung up. At that point, Tamika started sending text messages to that phone number. Tamika testified that one of the return text messages stated, “Noelle was only good for sucking his dick, he didn’t care about her, the only thing she did after he hurt her feelings she would run to me and cry to me.” Tamika then called him and said, “You are going to jail, you are going to jail.” He responded, “That’s okay, because if I go to jail, then I am going to fuck her up.” He then hung up.

{¶ 20} Jonda Palmer, a girlfriend of Pickens, testified that around 5:00 p.m. on May 31, Pickens came to her home. Pickens said that someone had accused him of rape, and he was angry. Pickens then asked Palmer if she would join with some other girls to beat up his accuser. Palmer refused. Palmer testified that when she gave Pickens a hug, she felt an object around his waist. She lifted up his shirt and saw a gun in his waistband. Palmer testified that after he left, they exchanged text messages, and Pickens said, “I feel like killing someone.”

D. Noelle, Sha’railyn, and Anthony murdered

{¶ 21} Tanisha Scott, Noelle’s cousin, testified that on the afternoon of June 1, 2009, she went to Noelle’s home, and Noelle, Anthony, and Sha’railyn were there. Noelle told Tanisha that Pickens had raped her and that she was afraid of him. She could not find her keys and said that Pickens had them. Tanisha left around 8:00 or 9:00 p.m.

{¶ 22} Ronell Harris, an acquaintance of Noelle, testified that at 11:40 p.m. on June 1, he saw Noelle talking to a man outside the building where she lived. Harris asked Noelle if everything was all right, because he had never seen Noelle outside so late. Noelle said everything was fine. Harris also asked where her children were, and she said that they were upstairs. Before leaving, Harris told Noelle, “[I]f you need me, just call me.” Harris testified that he later saw Pickens’s photo on TV and recognized him as the man who had been talking to Noelle.

{¶ 23} Cynthia Evans testified that on the evening of June 1, she was visiting a friend outside a church across the street from Noelle’s apartment building. Evans stated that she saw a woman with a baby arguing with a man across the street. Although Evans could not hear their conversation, she saw that the woman was crying and wiping her eyes, and the man was animated and looked mad. Evans saw them enter the apartment building. Evans testified that she heard loud music and later heard “two pops; boom, boom” and then “another pop, pop.” She then heard “another pop, pop,” and her friend said, “that’s gunfire, Cindy.” Evans stated that the music stopped, and it became quiet.

{¶ 24} Evans testified that shortly thereafter, a woman came down the street and entered the apartment. She then came outside and screamed, “[M]y baby, my baby.” Evans asked the woman what was the matter, and she said that her baby was not breathing. Evans called 9-1-1, entered the apartment, and found that Noelle and the two children were dead.

{¶ 25} Police spoke to Lewis about the events of that evening. Lewis testified that Sha’railyn stayed at Noelle’s home. At 11:12 p.m., Noelle texted her, saying, “Bitch I jus woke up mark was comin thru the kitchen.” Lewis texted back, “Wher he at now[?]” At 11:37 p.m., Noelle texted, “He gone.” At 11:40 p.m., Lewis texted, “I am about to come get her i am worry.” Noelle replied, “I’m finn go back to sleep.” At 11:42 p.m., Lewis texted, “Na i dont want her to be in da middle of that.” Noelle replied, “Of wat. He gone.” At 11:44 p.m., Lewis texted, “i dont give a fuck if he is gone he can come right back n yall don’t need to be there.” At 11:48 p.m., Lewis texted, “On my way now.” At 11:49 p.m. Noelle texted, “K.” This was the last text message Lewis received from Noelle.

{¶ 26} Lewis testified that she arrived at Noelle’s building about five or ten minutes after leaving home. Lewis entered the building and found Noelle’s door halfway open. Lewis went inside Noelle’s apartment and found Noelle sitting on the couch with Anthony in her arms and a cell phone in her hand. They were both dead. When she saw her daughter on the floor, Lewis ran outside, screaming, “He killed my baby. My baby’s dead.”

{¶ 27} At 12:15 a.m. on June 2, Cincinnati police officers arrived at Noelle’s apartment. Noelle was found slumped over on the couch with a baby in her arms and a cell phone in her hand. Sha’railyn was found lying near the TV in the same room. All three victims had been shot in the head and were pronounced dead.

E. Murder investigation begins

{¶ 28} At 12:30 a.m. on June 2, Detective Greg Gehring examined the crime scene. Investigators found no signs of forced entry, though a window was partly open in the front of the building. No firearms were found inside the apartment or in the area around the apartment building. Noelle’s keys were not in the apartment.

{¶ 29} Gehring learned that Noelle had filed charges against Pickens for rape on May 31 and was informed about the text messages that Noelle had sent before she was killed. Based on this information, Pickens was identified as the murder suspect. At approximately 3:45 a.m. on June 2, the police arrested Pickens at his apartment and took him to the station. In the meantime, Gehring watched surveillance footage from Gateway Plaza showing Pickens’s arrivals and departures during the previous night.

F. Pickens’s police interview

{¶ 30} Gehring testified that at 10:30 a.m. on June 2, Pickens waived his Miranda rights and was interviewed. Initially, Pickens stated that he did not remember what he did on May 31. Later, he stated that he “had got into it” with Noelle on Saturday or Sunday. Pickens said that Noelle came over to his place and they started playing rough. She then took his phone and ran out of the house. Pickens said that that was the last time he saw Noelle.

{¶ 31} Pickens said that Noelle sent him a text after she left his apartment and told him that she had called the police because he took her phone and “pulled her hair and stuff.” Pickens stated that he had not hit her, pulled her hair, or punched her. He also denied having sex with Noelle on Saturday or Sunday. Pickens said, “I ain’t had sex with her since earlier in that week * * *.”

{¶ 32} As for June 1, Pickens said that he was at his mother’s home all day, until 8:00 or 9:00 p.m. He then went straight home. Pickens said that he did not leave his apartment for the rest of the evening and went to bed around midnight. He denied going to Noelle’s apartment on June 1 and said that he had not been to her home for about a month. Later, Pickens said that he had not been to Noelle’s place for nine months.

{¶ 33} Pickens denied killing Noelle. When he was informed that other people had seen him at her place, Pickens said, “Ain’t nobody seen me over her house. I was not over there.” When informed that surveillance video showed him leaving his apartment and later returning, Pickens responded, “I did not leave.” Pickens also denied owning a firearm or ammunition. When informed that the police had found ammunition in his closet, Pickens replied, “You all ain’t found no bullets in my apartment.”

{¶ 34} Gehring also informed Pickens that the police were looking for him because of the rape charge. Pickens said that he did not know that the police were looking for him until he saw the card in his door the previous night. Pickens did not know what the police wanted to talk to him about. He said he was going to call the police later that day.

G. Surveillance videos and travel times

{¶ 35} During trial, the state presented surveillance video taken in the hallway outside Pickens’s apartment on May 31. The video showed that at 10:38 a.m., Noelle entered Pickens’s apartment. At 12:18 p.m., Noelle came out of the apartment, pulling up the waist of her pants. Noelle knocked on the neighbor’s door, and Tucker opened the door and talked to her. At 12:19 p.m., Noelle returned to Pickens’s apartment, knocked on the door, and Pickens came into the hallway. Noelle reached into Pickens’s back pocket, and they began to struggle on the hallway floor. Noelle then returned to Tucker’s apartment, and Pickens departed. At 12:20 p.m., Pickens returned to his apartment. At 12:29 p.m., two Cincinnati police officers arrived on the scene and talked to Noelle. They also knocked on Pickens’s door, but he did not answer. At 12:46 p.m., Noelle left with the police.

{¶ 36} The state also presented surveillance videos taken outside Pickens’s apartment and other locations at Gateway Plaza on June 1 and 2. The video showed Pickens leaving his apartment at 7:33 a.m. on June 1. At 10:44 a.m., Schroder and Broxterman arrived at Pickens’s apartment. Schroder knocked on the door and left his card. At 10:32 p.m., Pickens returned to his apartment and took the card from his door. At 10:37 p.m., Pickens left his apartment with his bicycle while wearing a jacket that was later found to have gunshot residue on it. The outside video showed that at 12:04 a.m. on June 2, Pickens returned to Gateway Plaza on his bicycle. But the hallway video showed Pickens returning with his bicycle to his apartment at 11:58 p.m. This discrepancy was explained by Gehring, who testified that the timer on the outside video was five minutes fast and the hallway video was two minutes slow.

{¶ 37} During trial, Officer Tim Watson, a Cincinnati bicycle policeman, testified that he measured the time it took to ride a bicycle on three different routes between Gateway Plaza and Noelle’s home. He took the trips between 10:00 and 11:30 p.m. on three different evenings. He stated that the fastest trip took three minutes and 20 seconds, and the slowest trip took four minutes.

H. Forensic evidence

{¶ 38} Andrew Burger, a criminalist with the Cincinnati Police Department, recovered three .45-caliber shell casings and a projectile from Noelle’s apartment. The apartment had not been ransacked, and there were no indications of a struggle. One of the outside windows was slightly open, and “it looked like someone had tried to push it up from the outside.” Burger saw finger marks on the window and dusted for fingerprints. He was unable to develop any usable prints.

{¶ 39} Barbara Mirlenbrink, a criminalist with the Cincinnati Police Department, testified that she collected evidence from Pickens’s apartment. She found a box containing 43 rounds of .45-caliber ammunition in Pickens’s closet and various items in a garbage can, including two pairs of baby socks, a baby toy, a gold earring, a social security card for Anthony Jones III, and a National City debit card in Noelle’s name. An Ohio Direction Card in Noelle’s name was also found on the bedroom dresser and a bicycle and a jacket on Pickens’s patio. Mirlenbrink testified that the upper portion of the jacket was completely dry but the sleeves were wet “like it had been dipped.” Mirlenbrink tested the bicycle for gunshot residue.

{¶ 40} Michael Trimpe, a forensic scientist at the Hamilton County coroner’s crime laboratory, testified that he tested lifts taken from the bicycle frame, the bicycle seat, the handlebars, and the handles. Those tests revealed the presence of particles from detonated primer of a discharged firearm. Trimpe testified that “the presence of primer residue on an item is consistent with that item at some time in its history having been in the vicinity of a firearm when it was discharged or having come into contact with primer residue on another item.” Trimpe also took lifts from the cuffs and sleeves of the jacket, which tested positive for the presence of gunshot residue.

{¶ 41} John Heile, a firearms and toolmark examiner for the Hamilton County coroner’s crime laboratory, examined the three Federal .45-caliber automatic cartridge cases found at the murder scene. He testified that the three cartridge cases were all fired from the same weapon. Heile stated that they could have been fired from “a Colt, a Kimber or a U.S. military type 45 * * * caliber semiautomatic pistol.” Heile also found severe “chamber marks” on the cartridge cases, which indicated that a defect could have hindered the cartridge from properly entering the chamber. Heile said that this might have caused the weapon to jam before each shot was fired.

{¶ 42} Heile examined the two autopsy bullets and the bullet found at the scene. He testified that they were .45-caliber automatic hollow-point bullets, and they were all fired from the same weapon. The ammunition found in Pickens’s closet was also examined, and these were Winchester .45-caliber automatic hollow-point bullets. Heile testified that this ammunition was compatible with the weapon that fired the autopsy bullets.

{¶ 43} William Harry, a forensic scientist with the Hamilton County coroner’s crime laboratory, testified that he identified semen on the vaginal swab collected from Noelle. He testified that DNA extracted from the swab matched the DNA profile of Pickens. Harry stated that this profile “would be expected to occur in approximately one in one sextillion nine hundred seventeen quintillion individuals.”

I. Autopsy results

{¶ 44} Dr. William Ralston, chief deputy coroner for Hamilton County, conducted the autopsy of the three victims. He testified that Noelle died from a single gunshot wound to the back of the head. He stated that toxicology testing was negative for the presence of alcohol or drugs. Dr. Ralston testified that Anthony Jones died from a gunshot wound to his forehead. Dr. Ralston identified soot and stippling around the entrance wound, which he said shows that this was a close-range shot fired from a distance of 6 to 12 inches.

{¶ 45} Dr. Ralston testified that Sha’railyn Wright died from a gunshot wound on the left side of her head behind the ear. There was also a gunshot injury to the left first finger and the left middle finger. He testified that these wounds may have occurred while Sha’railyn was covering her head with her hands. Dr. Ralston also testified that he detected stippling and soot on the fingers, which indicated that the firearm was fired at a range of 6 to 12 inches from Sha’railyn’s head.

J. Informant’s testimony

{¶ 46} Montez Lee testified that he and Pickens were housed in the same cell block. Lee stated that Pickens told him, “I killed that bitch and the babies.” Pickens told him that he had killed Noelle because “the girl kept calling the police on him.” Pickens said that he shot Noelle in the head with a .45 automatic with hollow-tip bullets. Pickens also said that the police found some .45-caliber ammunition in his house, but it was not the same kind of ammunition that he had in his gun. Pickens said that he killed the three-year-old child because she knew him and could identify him and that he shot the baby “[bjecause the baby was just there, like he got a rush out of it.”

K. Defense evidence

{¶ 47} The defense called no witnesses during the trial phase but presented several exhibits. The evidence included three grand-jury indictments brought against Lee before he agreed to testify against Pickens: an indictment for aggravated robbery, robbery, and felonious assault, an indictment for robbery, and an indictment for aggravated murder, murder, aggravated robbery, robbery, and having weapons while under a disability.

{¶ 48} The trial court also admitted Lee’s plea agreement, in which Lee agreed to testify against Pickens in exchange for the state’s agreement to accept Lee’s guilty plea to one count of voluntary manslaughter with a firearm specification. The state also accepted an agreed prison sentence of 13 years and agreed to dismiss the remaining counts and specifications in the indictments.

{¶ 49} The trial court also admitted a handwritten letter that Lee sent to Pickens asking him for $300 in exchange for Lee’s agreement not to testify.

{¶ 50} In addition, the trial court admitted a complaint for a theft offense filed against Ronell Harris that was presented to impeach Harris during his testimony.

II. Case History

{¶ 51} The state charged Pickens with three counts of aggravated murder. Count Two charged him with the aggravated murder of Noelle with prior calculation and design and contained death-penalty specifications for murder to escape accountability for a crime, R.C. 2929.04(A)(3), and for murder as part of a course of conduct involving multiple murders, R.C. 2929.04(A)(5). Count Three charged him with the aggravated murder of Sha’railyn, a child under the age of 13. Count Four charged him with the aggravated murder of Anthony, a child under the age of 13. Counts Three and Four contained death-penalty specifications for a course of conduct, R.C. 2929.04(A)(5), and for the murder of a child under the age of 13, R.C. 2929.04(A)(9). All three counts contained firearm specifications.

{¶ 52} Pickens was also charged with three additional counts. Count One charged him with the rape of Noelle. Counts Five and Six charged him with having a weapon under a disability.

{¶ 53} Pickens pled not guilty.

{¶ 54} The jury found Pickens guilty of all charges and specifications and recommended that he be sentenced to death. The trial court accepted the jury’s recommendation and sentenced Pickens to death on all three counts of murder. Prior to sentencing on the noncapital offenses, the trial court merged Counts Five and Six and merged the three gun specifications. The trial court sentenced Pickens to ten years for rape, five years for having a weapon under a disability, and three years on the firearm specification.

III. Issues on Appeal

{¶ 55} In this appeal, Pickens raises ten propositions of law. These issues will be addressed in the approximate order that they arose during the trial.

A. Pretrial and trial issues

1. Voir dire on defendant’s youth (Proposition of law I)

{¶ 56} Pickens argues that the trial court erred by allowing the prosecutor to ask prospective jurors during voir dire about his youth as a mitigating factor. During voir dire of the first group of prospective jurors, the prosecutor made the following comments:

As far as Mr. Pickens goes, my understanding is he’s around 20 years old or so now, and that he may have been around 19 or so around the time of these crimes. Do any of you feel because of his age—

Mr. Ancona [defense counsel]: Objection. Can we approach your honor?

The Court: Sure.

{¶ 57} Counsel argued that the “prosecution can’t put into the record a mitigating factor.” The trial court replied, “You stopped them before they actually got to it.” Counsel moved for a mistrial and added, “[B]ut if the Court does not grant a mistrial, the Court would instruct to disregard would be all right.” The trial court sustained the defense objection and overruled the motion for a mistrial. The trial court also instructed the prosecutor to “[s]tay away from mitigating factors” and to “move on to something else.”

{¶ 58} Pickens invokes State v. Wilson, 74 Ohio St.3d 381, 659 N.E.2d 292 (1996), and State v. Mundt, 115 Ohio St.3d 22, 2007-Ohio-4836, 873 N.E.2d 828, in arguing that a mistrial should have been declared, because the prosecutor improperly mentioned his youth as a mitigating factor during voir dire. In Wilson, the defense argued that Morgan v. Illinois, 504 U.S. 719, 112 S.Ct. 2222, 119 L.Ed.2d 492 (1992), allowed counsel to ask prospective jurors what they thought about each of the statutory mitigating factors. Wilson at 385-386. Morgan held that the trial court, at an accused’s request, must ask prospective jurors about their views on capital punishment to ascertain whether any of them would automatically vote for the death penalty regardless of the circumstances. Id. at 735-736. In rejecting defense arguments, Wilson held that “Morgan does not require judges to allow individual voir dire on separate mitigating factors.” Wilson at 386. Wilson stated that the “detailed questioning that occurred in this case was adequate to expose faults that would render a juror ineligible. * * * Morgan imposes no further requirements on voir dire.” Id.

{¶ 59} In Mundt, the defense argued on appeal that trial counsel were ineffective by failing to question a prospective juror about specific mitigating factors. In rejecting this claim, the court cited Wilson and simply noted that “the parties are not entitled to ask about specific mitigating factors during voir dire.” Mundt at ¶ 84.

{¶ 60} We have repeatedly held that a trial court is under no obligation to allow counsel to question prospective jurors about specific mitigating factors. See, e.g., State v. Cunningham, 105 Ohio St.3d 197, 2004-Ohio-7007, 824 N.E.2d 504, ¶ 24; Wilson; see State v. Jones, 91 Ohio St.3d 335, 338, 744 N.E.2d 1163 (2001). Neither the prosecutor nor defense counsel, however, is prohibited from mentioning or asking questions about specific mitigating factors. See State v. Jackson, 107 Ohio St.3d 300, 2006-Ohio-1, 839 N.E.2d 362, ¶ 131 (court may allow counsel to refer to specific mitigating evidence as examples of mitigating factors during voir dire). The matter is one for the trial court’s discretion. In any event, the trial court sustained an objection to the prosecutor’s comment about Pickens’s youth before the prosecutor could pose a question to the jury. Thus, no error occurred.

{¶ 61} Based on the foregoing, we reject proposition I.

2. Batson challenges (Proposition of law II)

{¶ 62} Pickens argues that the prosecutor peremptorily challenged three African-American prospective jurors because of their race, in violation of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69 (1986).

a. The Batson standard

{¶ 63} In Batson, the United States Supreme Court held that the Equal Protection Clause of the United States Constitution precludes purposeful discrimination by the state in the exercise of its peremptory challenges to exclude prospective jurors solely on account of their race. Id. at 89. A court adjudicates a Batson claim in three steps. State v. Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 61. First, the defendant must make a prima facie case of racial discrimination. Batson at 96-97. Second, if the defendant satisfies that burden, the prosecution must provide a racially neutral explanation for the challenge. Id. at 97-98. Third, the trial court must decide, based on all the circumstances, whether the defendant has proved purposeful racial discrimination. Id. at 98. At this stage, the court “must examine the prosecutor’s challenges in context to ensure that the reason is not merely pretextual.” State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 65. The judge must “assess the plausibility” of the prosecutor’s reason for striking the juror “in light of all evidence with a bearing on it.” Miller-El v. Dretke, 545 U.S. 231, 252, 125 S.Ct. 2317, 162 L.Ed.2d 196 (2005).

{¶ 64} A trial court’s finding of no discriminatory intent will not be reversed on appeal unless clearly erroneous. Frazier at ¶ 64; see Miller-El v. Cockrell, 537 U.S. 322, 340, 123 S.Ct. 1029, 154 L.Ed.2d 931 (2003). If a trial court does err in applying Batson, the error is structural. United States v. McFerron, 163 F.3d 952, 956 (6th Cir.1998).

b. Prospective juror Hemphill

{¶ 65} On her jury questionnaire, Hemphill answered the question “Please describe your views on the death penalty” as follows:

Mixed: If someone commits murder should they experience to appreciate the extent of their crime?

or

If murder is so horrible and final should we go there when we have alternatives for punishment?

{¶ 66} Hemphill also stated that she had received a J.D. degree from Northern Kentucky University but decided not to practice law. She added, “Night school paid by employer, Cincinnati Bell. After working with corporate legal departments, I decided that I did not want to have to argue or win for a living.” (Underlining sic.)

{¶ 67} During voir dire, the prosecutor asked Hemphill for her views on the death penalty:

Mr. Tieger [the prosecutor]: * * * As far as the death penalty, can you tell me what your views on the death penalty are?

Prospective juror 2: They’re mixed. I haven’t resolved it one way or the other, and I said that on my application.

Mr. Tieger: I’m sure you thought about it a lot over the weekend?

Prospective juror 2: No, I didn’t.

Mr. Tieger: Just when you got here today?

Prospective juror 2: I tried to be Scarlett O’Hara on difficult topics.

Mr. Tieger: Tell me about the mixed feelings you have.

Prospective juror 2: Well, on the one hand, if someone takes a life or takes several lives, why should they be able to enjoy their life? Then on the other hand, if it’s such a heinous crime, one that we have very strong penalties for, then why would we use that as a solution when there are other alternatives, so I’m constantly going back and forth.

Mr. Tieger: Correct me if I’m wrong, that one of your thoughts is that life in prison is a worse penalty than the death penalty because they will have time to reflect on what they did?

Prospective juror 2: I don’t know if it’s worse. It’s an alternative.

Mr. Tieger: I’m just reading your form: If someone commits murder, should they experience to appreciate the extent of their crime, or if murder is so horrible and violent, should we go there when we have alternatives for punishment?

On the one hand, if it’s so bad maybe the death penalty is appropriate, and the other, they should have to just sit in jail for the rest of their lives as well.

Prospective juror 2: I don’t know. It would depend on the circumstance. I’m just saying if you ask me how I feel about the death penalty, I play devil’s advocate with myself and say on the one hand, what’s the ultimate punishment? On the other hand, what do we as a society want to say about ourselves, and so how you reconcile that, or can you ever reconcile that?

Mr. Tieger: What I’m asking you, can you reconcile that within yourself in terms of this particular case?

Prospective Juror 2: As far as the case, once I hear the case, then I will be able to do that versus the general question of whether there should be the death penalty.

Mr. Tieger: What I’m asking, kind of the round about way, can you follow the law that Judge Martin gives you?

Prospective Juror 2: I prefer to follow the law, that way it’s less off me, if you see what I’m saying.

Mr. Tieger: Right. But what I’m saying is the law at some point it doesn’t give you a choice, so to speak, that if you find these aggravating circumstances outweigh the mitigating factors beyond a reasonable doubt, what Judge Martin will tell you is that the jury shall impose the death penalty, you have no trouble with that law at all?

Prospective Juror 2: No.

Mr. Tieger: Even though you have mixed feelings now?

Prospective Juror 2: I have mixed feelings about the general question of the death penalty. If I’m given a specific case with specific instructions and specific evidence, then that’s what I will follow.

{¶ 68} The prosecutor peremptorily challenged Hemphill, and trial counsel objected that this was a Batson violation.

{¶ 69} The state offered two race-neutral explanations for excusing this juror. First, the prosecutor explained:

If you look at her answer'on the death penalty, it is extremely confusing and hard to understand. She says, mixed. If someone commits murder, should they experience to appreciate the extent of their crime, question mark, which doesn’t make sense. Then she says or, and underlines or, if murder is so horrible and final, should we go there when we have alternatives for punishment, and has a question mark there. I think that’s a very ambivalent answer. It is very anti death penalty.

{¶ 70} Second, the prosecutor pointed to Hemphill’s comments on the questionnaire about her law degree:

On questions number 28, she does have a JD, and it looks like she went all the way through law school, and then there is an asterisk at the bottom of her form, night school paid by employer. After working with corporate legal department, I did not want to argue or win, which she underlines, for a living, which is very odd to go through that type of school and at the end, decide she didn’t want to finish it out.

{¶ 71} Trial counsel challenged the state’s explanation and asserted, “She cleaned up her answers extremely well in Voir Dire. Said she could follow the law.” The trial court rejected the Batson challenge and found that “the State has given a race neutral reason for excusing her and she will be excused * *

{¶ 72} Pickens argues that the state did not provide a race-neutral explanation for the peremptory challenge of Hemphill. Pickens contends that Hemphill’s answers during voir dire were “perfectly appropriate,” and “in light of all the circumstances,” the state had an obvious discriminatory motive for removing Hemphill from the jury.

{¶ 73} Hemphill’s answers about the death penalty on her questionnaire and during voir dire conveyed uncertainty about her views on the death penalty. Hemphill acknowledged that her views about the death penalty were “mixed” and stated that “I haven’t resolved it one way or the other * * Hemphill’s equivocal answers about the death penalty show that the prosecutor’s race-neutral justification for striking Hemphill was not pretextual. See Were, 118 Ohio St.3d 448, 2008-Ohio-2762, 890 N.E.2d 263, at ¶ 70 (prospective juror’s uncertainty about the death penalty accepted as a race-neutral explanation for challenge).

{¶ 74} Moreover, a review of the voir dire examination of the seated jurors supports the plausibility of the prosecution’s reason for striking Hemphill for her views on the death penalty. See Miller-El v. Dretke, 545 U.S. at 241-242, 125 S.Ct. 2317, 162 L.Ed.2d 196 (evidence of purposeful discrimination may be found if reason for challenge to African-American is equally applicable to otherwise similar non-African-American who is permitted to serve). The questionnaires and the voir dire testimony of the ten seated Caucasian jurors show that none of them expressed a level of uncertainty about the death penalty equal to that conveyed by Hemphill. Viewed as Miller-El directs, the record does not support Pickens’s claim that the prosecution’s race-neutral reason for striking Hemphill was pretextual.

{¶ 75} The state’s second race-neutral justification was based on Hemphill’s employment status. Peremptory challenges may be validly exercised on the basis of employment status and occupation; See United States v. Simon, 422 Fed. Appx. 489, 494 (6th Cir.2011); State v. O’Neal, 87 Ohio St.3d 402, 409, 721 N.E.2d 73 (2000) (challenge to social worker on grounds that occupation was not “pro-conviction” deemed race-neutral). The state’s explanation was that Hemphill failed to become a lawyer after she graduated from law school that her employer had paid for.

{¶ 76} But juror McCune, a Caucasian male, was a lawyer and was not challenged. Nevertheless, the record shows that there were meaningful differences between Hemphill and McCune. McCune had worked in several different legal positions during his career and was currently employed as a lawyer. Hemphill had gone to law school but had not pursued a legal career, because she “decided that [she] did not want to have to argue or win for a living.” (Underlining sic.) Thus, their similarity (i.e., they both went to law school) was marginal at best. Thus, the record again fails to support Pickens’s claim that the proffered race-neutral justification was pretextual.

c. Prospective juror Hutchinson

{¶ 77} On his questionnaire, Hutchinson answered the question “Please describe your views on the death penalty” as follows: “If its proven beyond a shadow of dought [sic] im [sic] for it, such as they confess to the crime.”

{¶ 78} During voir dire, the prosecutor asked Hutchinson about his comments on the questionnaire about the death penalty and the burden of proof:

Mr. Tieger: As far as the death penalty, tell me your views on the death penalty.

Prospective juror Hutchinson: I believe in the death penalty, if the evidence points to that. Like I wrote on my questionnaire, has to be beyond a shadow of a doubt.

Mr. Tieger: When I was talking to the jury yesterday, I mentioned the words, shadow of a doubt. That’s not a legal term at all. It is beyond a reasonable doubt. Are you good with that?

Prospective juror Hutchinson: Yes.

Mr. Tieger: You put on your form if it is proven beyond a shadow of a doubt; I am for it, such as, they confess to the crime. In this particular case, he did not confess to the crime.

Prospective juror Hutchinson: If the evidence points to that.

Mr. Tieger: Okay. You also marked on your form that you are opposed, with very few exceptions. Can you talk about that a little bit?

Prospective juror Hutchinson: The death penalty?

Mr. Tieger: Your feelings on the death penalty.

Prospective juror Hutchinson: I believe in the death penalty, if the evidence points towards that. That’s it.

{¶ 79} Hutchinson was also asked about his answer on the questionnaire that he had encountered “a negative or a frightening experience with a person of another race” whenever he had been pulled over by a white police officer. Hutchinson said, “This was in the past when I was pulled over by a white cop, they expressed how they was feeling at that time, either calling me boy, detaining me, talking to me like I was trash.”

{¶ 80} The prosecutor peremptorily challenged Hutchinson. The defense objected to this challenge as a Batson violation, stating: “He answered his questions correctly. He is strong on pro death penalty. We believe there is * * * [a]n irrational inference in dismissing him.”

{¶ 81} The prosecutor provided three race-neutral justifications for challenging Hutchinson. First, the prosecutor stated:

If you look at his questionnaire in response to question 51 on the death penalty, he says, proof beyond a shadow of a doubt, which is an incorrect standard, such as they confess to the crime.

So he is looking for something like a confession, which we don’t have in this case * * *.

{¶ 82} Second, the prosecutor stated that Hutchinson said on his questionnaire that he was “opposed with very few exceptions to the death penalty.” Third, the prosecutor described Hutchinson’s statement about his negative experiences with white police officers as “troubling to us also in that there are a number of white police officers that are going to testify. He comes in with that predisposition. I think he will have a problem being fair and impartial.”

{¶ 83} The trial court rejected the Batson challenge and made the following findings:

I am going to excuse him. I think the shadow of a doubt comment is a problem even if he did straighten it out. The confession issue is a problem, even if he did address it. The risk is he would try to introduce another element to the offense. The issues concerning his prior problems with white police officers. I do not find it be a legitimate reason to kick somebody off because he says he is opposed with very few exceptions. That’s the law. Very few homicides ever get prosecuted for the death penalty. On that basis, it wouldn’t be enough. The state cited more than ample race neutral reasons to dismiss Mr. Hutchinson.

{¶ 84} Pickens argues that the state failed to provide a reasonable race-neutral explanation for peremptorily challenging Hutchinson. The trial court accepted the state’s justification for excusing Hutchinson because he stated that he supported the death penalty if it is proven beyond a shadow of doubt, when, for example, there is a confession. This was a race-neutral explanation. Hutchinson’s statement, even as clarified at voir dire, indicated that he might hold the state to a higher burden of proof than “beyond a reasonable doubt.” Moreover, Hutchinson’s statement about confessions indicated that he might hold the state to a higher evidentiary standard than required by law. See State v. Wright, 7th Dist. Mahoning No. 03 MA 112, 2004-Ohio-6802, 2004 WL 2913909, ¶ 18 (prosecutor’s peremptory strike of juror who believed that state had to prove its case beyond a shadow of a doubt was race-neutral); United States v. Leonard, 356 Fed.Appx. 231, 234-236 (11th Cir.2009) (prosecutor’s peremptory strike was race-neutral where juror said she might require the government to prove guilt by a burden of proof higher than the “beyond the reasonable doubt” standard). Thus, we hold that Hutchinson’s excusal was not a Batson violation.

d. Prospective juror Bell

{¶ 85} During voir dire, the prosecutor questioned Bell about her views on the death penalty. Bell stated that her views had “evolved some the past couple days.” Bell stated she had a Baptist background and “wanted to make sure that if I had to [apply] it, * * * it would be the right thing to do.” Bell said she “looked up some scriptures and reflected on being a citizen, just being a good citizen and following law.” Bell also talked to one of the ministers at her church about the death penalty. Bell stated that the minister told her, “Just to look in certain scriptures and that it was okay. It wasn’t one of those things where we weren’t completely against it.”

{¶ 86} Bell was also asked about her answer on the questionnaire about police investigations. On her questionnaire, Bell stated: “I feel like crime scenes are often contaminated, and precious evidence is either destroyed or overlooked. They need to make closer connections w/the investigations.” During voir dire, Bell related this answer to “a couple of incidences at our school where I think it took the police too long to get there.”

{¶ 87} The prosecutor peremptorily challenged Bell, and trial counsel objected that this was a Batson violation. The prosecutor offered the following race-neutral explanation:4

It was troubling to me that she indicated to everybody here that after she was told not to discuss the case with anybody, she talked to somebody with her church as far as whether it is the right thing to do or not or whether or it is a law or rule she could follow. She has somewhat violated the rule the Court gave her in discussing the case with somebody else.

{¶ 88} As an additional reason, the prosecutor mentioned Bell’s comments about contaminated crime scenes. The prosecutor argued that her predisposition put an unfair burden on the state with respect to the crime scene. The prosecutor mentioned that this juror indicated on her questionnaire that she watched “CSI, Law & Order, Criminal Minds, Cold Case, 48 Hours, [and] Unsolved Mysteries.”

{¶ 89} Trial counsel challenged the state’s explanation. He argued that if the prosecutor thought that the juror had violated the trial court’s instructions, he should have challenged her for cause.

{¶ 90} The trial court rejected the Batson challenge, stating, “The race neutral reason of her going and seeking independent counsel on the issue of [the] death penalty is sufficient to excuse her from the panel.” But the trial court rejected the prosecutor’s explanation that Bell’s comments about contaminated crime scenes and watching TV crime shows provided a legitimate race-neutral justification for excusing her.

{¶ 91} Pickens argues that the prosecutor failed to provide a reasonable race-neutral explanation to support the peremptory challenge. Bell’s discussion about the death penalty with her minister after she had been instructed not to discuss the case with anyone else was a race-neutral justification. Moreover, trial counsel’s argument that the prosecutor should have challenged Bell for cause has no merit because the “ ‘prosecutor’s explanation [for a peremptory challenge] need not rise to the level justifying exercise of a challenge for cause.’ ” (Brackets sic.) Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, at ¶ 97, quoting Batson, 476 U.S. at 97, 106 S.Ct. 1712, 90 L.Ed.2d 69.

e. Pattern of excluding African-American jurors

{¶ 92} Pickens argues that the prosecutor’s peremptory challenges of three African-American prospective jurors exhibited a pattern of excluding African-Americans from the jury. He presented no evidence, however, to support this claim. Moreover, the empanelled jury included two African-Americans, and two African-Americans served as alternate jurors. The state also did not use two peremptory challenges that were available before the jury was finally selected. The presence of African-Americans on a jury certainly does not preclude a finding of discrimination but “ ‘the fact may be taken into account * * * as one that suggests that the government did not seek to rid the jury of persons [of a particular] race.’ ” (Brackets and ellipsis sic.) State v. White, 85 Ohio St.3d 433, 438, 709 N.E.2d 140 (1999), quoting United States v. Young-Bey, 893 F.2d 178, 180 (8th Cir.1990). Absent evidence of a pattern of misconduct, we conclude that this claim lacks merit.

{¶ 93} Based on the foregoing, we reject proposition II.

3. Prosecutorial misconduct (Proposition of law III)

{¶ 94} Pickens argues that the state engaged in misconduct by failing to disclose discovery evidence in a timely manner and b.y failing to disclose Brady evidence. Pickens also argues that the prosecution committed misconduct by making improper comments during its opening statement and closing argument.

a. Discovery and Brady requests

{¶ 95} Crim.R. 16(B), at the time of Pickens’s trial, required the prosecutor to disclose certain information upon a proper discovery request made by the defendant. Crim.R. 16 was amended effective July 1, 2010, but during the trial, it stated:

(B) Disclosure of evidence by the prosecuting attorney

(1) Information subject to disclosure.

* * *

(e) Witness names and addresses; record. Upon motion of the defendant, the court shall order the prosecuting attorney to furnish to the defendant a written list of the names and addresses of all witnesses whom the prosecuting attorney intends to call at trial, together with any record of prior felony convictions of any such witness, which record is within the knowledge of the prosecuting attorney.

{¶ 96} The prosecutor must also provide defendants any evidence that is favorable to them whenever that evidence is material either to their guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Evidence is considered material when “there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A ‘reasonable probability’ is a probability sufficient to undermine confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d 481 (1985).

{¶ 97} Pickens argues that the prosecutor failed to provide discovery until the eve of trial or during trial and also failed to disclose Brady material in discovery. First, Pickens claims that the state failed to provide the defense with the audio portion of the surveillance video taken in the hallway outside Pickens’s apartment. This claim lacks merit because Layne Hurst, the property manager of Gateway Plaza Apartments, testified that the surveillance video did not include an audio recording.

{¶ 98} Second, Pickens argues that the state provided “late disclosure” to the defense of its intention to call Montez Lee as a prosecution witness. Pickens contends that he did not learn that Lee would testify until April 12, 2010, only three days before opening statements. The record shows, however, that the state informed the defense in a written discovery response on November 20, 2009, that Lee was going to be a witness. Moreover, during a status hearing on discovery on December 1, 2009, the prosecutor stated that “at some point in the trial, we are definitely going to call” Lee. Thus, this claim lacks merit.

{¶ 99} Third, Pickens makes the generalized claim that prosecution witnesses made inconsistent statements that contained obvious Brady material that were not disclosed. Pickens fails, however, to identify the witnesses or specify which statements were not disclosed. Rather, he cites the record of the proceedings on April 12, 2010, when the defense complained about late discovery. Counsel complained about the late disclosure of Noelle’s inconsistent statements about her reasons for going to Pickens’s apartment on the day of the rape. The prosecutor countered that Noelle’s police statements had been provided to defense counsel.

{¶ 100} The prosecutor also reminded the court that during the Evid.R. 804(B)(6) hearing on March 19, 2010, Noelle’s friends and relatives testified as to Noelle’s different reasons for going to Pickens’s apartment: Noelle told Officer Jenkins and Detective Schroder that she went to his apartment to have sex, she told her sister Tamika that she went to return something that she had taken from Pickens’s car, she told her mother that she went to collect money that Pickens owed her, and she told her friend Crystal Lewis that she went there “so we could talk.” In addition, defense counsel had the statement that Noelle had written at the hospital for the rape examination, where she stated, “Mark owed me money so I went over to get it.” Thus, the defense knew about Noelle’s inconsistent statements before trial began, and no Brady violation occurred.

{¶ 101} Pickens complains that these Brady materials were provided on the eve of trial and were too late. As to late discovery, we have stated:

[T]he philosophical underpinnings of Brady support the conclusion that even disclosure of potentially exculpatory evidence during trial may constitute a due process violation if the late timing of the disclosure significantly impairs the fairness of the trial. Even where information may be exculpatory, “[n]o due process violation occurs as long as Brady material is disclosed to a defendant in time for its effective use at trial.”

State v. Iacona, 93 Ohio St.3d 83, 100, 752 N.E.2d 937 (2001), quoting United States v. Smith Grading & Paving, Inc., 760 F.2d 527, 532 (4th Cir.1985).

{¶ 102} The defendant has the burden to prove a Brady violation rising to the level of a due-process violation. Iacona at 92. As an initial matter, it is not clear that the state provided late discovery about Noelle’s statements. At the very least, the defense knew about Noelle’s inconsistent statements nearly a month before trial began. Pickens also fails to explain how counsel were burdened in presenting his case by not learning about Noelle’s inconsistent statements earlier.

{¶ 103} Moreover, the court asked trial counsel if they wanted a continuance to review witness statements and prepare for trial. Counsel responded, “I don’t think we need it, but if we did, we would certainly tell you.” “Hence, ‘the trial court may have properly determined that appellant was prepared to proceed despite any claim of unfair “surprise.” ’ ” State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 119, quoting State v. Bidinost, 71 Ohio St.3d 449, 457, 644 N.E.2d 318 (1994); see also Iacona at 101. Thus, Pickens has failed to establish that any delay in obtaining Brady materials or other discovery deprived him of due process.

{¶ 104} As a final matter, Pickens complains that Detective Gehring improperly talked to a witness during trial and then failed to promptly disclose the substance of the interview to the defense. During the state’s case-in-chief, the defense objected that Gehring, who was himself a witness, had violated the trial court’s order for a separation of the witnesses when he spoke to Lee, who would later be testifying. The prosecutor responded that Gehring was the state’s “case agent” and was “[bjasically just sitting there while we talk.” The trial court agreed that Gehring should not be talking to the witnesses but stated, “I don’t think there is any indication that there has been anything done wrong * *

{¶ 105} Trial counsel then expressed concern that Gehring and other officers were obtaining information about a woman named Star Christ. According to Montez Lee, Pickens said that Christ, who coincidentally was Lee’s former girlfriend, was in the area the night of the murders and had seen Pickens running from the scene.

{¶ 106} The prosecutor informed the court that Lee’s statement about Christ was checked out and nothing could be verified. Trial counsel objected and stated that they should have been told in advance that Lee had made a false statement to the police. The prosecutor added that he had interviewed Christ in Gehring’s presence. During that interview, Christ denied seeing Pickens running from the scene. The prosecutor stated that the state would try to contact Christ if defense counsel wanted to talk to her, but that Christ had refused to divulge her phone number. The defense declined, stating: “We will just proceed. I think it was a valid point to bring to the court’s attention.”

{¶ 107} Pickens fails to explain how the defense was prejudiced by the late disclosure of Christ’s statement. Trial counsel did not request a continuance to talk with Christ before Lee testified. In addition, the defense was informed about Lee’s statements and Christ’s denials before Lee testified, and counsel later used this information to discredit Lee’s testimony about Christ. During Lee’s cross-examination, trial counsel asked, “Are you aware that [Christ] told the police that she didn’t know anything about what you were talking about?” Lee replied, “No, I don’t know nothing about that.” See State v. Kulchar, 4th Dist. Athens No. 10CA6, 2011-Ohio-5144, 2011 WL 4597525, ¶ 43 (no Brady violation where defense did not request a continuance and obtained statements before witnesses testified).

{¶ 108} Gehring’s testimony also helped to eliminate any prejudice that might have resulted from the late disclosure of Lee’s statements about Christ. During direct examination, Gehring was asked about Lee’s testimony regarding Christ. Gehring testified that he had interviewed Christ, and she stated that she was not in the area at the time of the murders. Thus, Pickens has failed to establish a due-process violation based on late disclosure of information about Christ.

b. Opening statements and rebuttal arguments

{¶ 109} Pickens argues that the prosecutor committed misconduct during opening statement and closing argument on rebuttal. Except where noted, however, trial counsel failed to object and thus waived all but plain error. State v. Wade, 53 Ohio St.2d 182, 373 N.E.2d 1244 (1978), paragraph one of the syllabus. To prevail on plain-error review, Pickens must establish both that misconduct occurred and that but for the misconduct, the outcome of the trial clearly would have been otherwise. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002); Crim.R. 52(B).

{¶ 110} The test for prosecutorial misconduct is whether the remarks were improper and, if so, whether they prejudicially affected the accused’s substantial rights. State v. Smith, 14 Ohio St.3d 13, 14, 470 N.E.2d 883 (1984). The touchstone of the analysis “is the fairness of the trial, not the culpability of the prosecutor.” Smith v. Phillips, 455 U.S. 209, 219, 102 S.Ct. 940, 71 L.Ed.2d 78 (1982).

(1) Opening statements

{¶ 111} First, Pickens argues that the prosecutor misstated the evidence and engaged in speculation when she interpreted Noelle’s message “K” to Lewis (in response to Lewis’s text that she was on her way) as meaning that she would leave her apartment to go with Lewis. Pickens argues that the prosecutor’s interpretation was improper since there was no evidence other than “K.”

{¶ 112} During the state’s opening statement, the prosecutor discussed Noelle’s exchange of text messages with Lewis just before the murders. The prosecutor stated that Noelle had texted Lewis at 11:12 p.m. that she had awakened to find Pickens inside her apartment, and at 11:37 she texted that he was gone. The prosecutor stated that Lewis replied, “You all don’t need to be there with all that shit going on, for real. I am on my way.” Noelle responded, “K,” which the prosecutor stated meant, “Okay. I will go with you, you are right.”

{¶ 113} “During opening statements, counsel is accorded latitude and allowed ‘fair comment’ on the facts to be presented at trial.” St