State v. Adams (144 Ohio St. 3d 429, 2015)

O’Connor, C.J.

{¶ 1} This is an appeal as of right from a judgment affirming an aggravated-murder conviction and death sentence. A Mahoning County jury convicted appellant, Bennie Adams, of aggravated murder in connection with the rape and murder of Gina Tenney and unanimously recommended a sentence of death. The trial court accepted the recommendation and sentenced Adams accordingly. The Seventh District Court of Appeals affirmed the conviction and sentence.

{¶ 2} Although we affirm the conviction for aggravated murder, we vacate the sentence of death and remand the matter for resentencing in accordance with this opinion.

Relevant Background

The Evidence at Trial

{¶ 3} The state called 18 witnesses to testify at trial. The defense presented no witnesses of its own but did recall and briefly question one of the state’s witnesses. The evidence that follows was presented to the jury.

The burglary and the murder

{¶ 4} In the autumn of 1985, Gina Tenney was a sophomore at Youngstown State University. She lived alone in a second-floor apartment in a converted house on Ohio Avenue in Youngstown.

{¶ 5} Adams lived in the same house in a downstairs apartment with his girlfriend, Adena Fedelia. The duplex had an interior common staircase.

{¶ 6} Around 1:00 a.m. on December 25, 1985, Tenney was getting ready for bed when, as she told a friend, she “heard someone at the door with the keys like they were trying to get in.” Tenney called her ex-boyfriend, Mark Passarello, who came and stayed with her until about 3:00 a.m. on Christmas morning.

{¶ 7} Shortly after Passarello left, Tenney again heard someone at her door. The person knocked over the chair Tenney had placed against the door and entered the apartment. Tenney called the police to report an intruder in her apartment. The responding police officers found footprints in the snow leading from her apartment to 275 West Dennick Avenue in Youngstown.

{¶ 8} The investigation was assigned to Detective William Blanchard of the Youngstown Police Department. On December 26, 1985, Blanchard met with Tenney at her apartment. Looking at her apartment door, Blanchard saw “slight” but “noticeable” evidence of a forced entry.

{¶ 9} Blanchard followed up on the report of footprints by traveling to 275 West Dennick and interviewing a resident there, Ed Tragesser. Tragesser claimed to know nothing about the break-in. Blanchard testified that Tragesser was never ruled out as the burglar but that there was no evidence to sustain charging him with any crime. Blanchard, however, suspected that Adams may have been the burglar based on what Tenney had told him.

{¶ 10} Tenney’s friend, Penny Sergeff, also suspected that Adams was the burglar.

{¶ 11} According to Sergeff, the outside door to Tenney’s building made a loud screeching noise when it was opened or closed. But Tenney had not heard the door screech the night of the burglary, which suggested to Sergeff that the burglar had not come from outside the apartment building. Sergeff shared the information about the screeching door with the police, but never explicitly communicated her suspicions about Adams at the time she initially spoke to the police.

{¶ 12} Less than a week after the break-in, on the morning of December 30, 1985, Tenney’s dead body was discovered in the Mahoning River. Upon identifying Tenney’s body, homicide detectives called Blanchard into the investigation.

The investigation and arrest of Adams

{¶ 13} From the outset, Blanchard considered Adams a person of interest in the homicide.

{¶ 14} Blanchard and two homicide detectives traveled to the duplex on Ohio Avenue. They knocked on the exterior door for “a number of minutes” until Adams emerged from his apartment and admitted them into the common area.

{¶ 15} Upstairs, the police officers found the door to Tenney’s apartment locked. They observed no blood on the steps. Blanchard saw no new evidence of forced entry.

{¶ 16} The investigators decided to call the building’s owner for the key to Tenney’s apartment. They then knocked on Adams’s apartment door for permission to use his telephone; Adams let them in.

{¶ 17} While one detective placed the call, Blanchard and Lieutenant David Campana talked to Adams, asking him when he had last seen Tenney, whether anything suspicious had been happening lately, whether anybody else was around who might know something, and whether he was alone. Adams indicated that he was alone in the apartment and told detectives that he did not know where Tenney might be.

{¶ 18} Just then, the detectives heard a loud bump, a sound like a door hitting a wall. Adams then said, “I never said he wasn’t here” or words to that effect. Blanchard and Campana went into’ a back bedroom, where they found Horace Landers hiding behind a door.

{¶ 19} Campana recognized Landers and remembered that there was an outstanding misdemeanor warrant for him. Campana and Blanchard immediately arrested Landers and handcuffed him.

{¶ 20} Landers was wearing trousers, but was bare-chested. Knowing that they would have to take him outside into the cold, Blanchard looked around and saw a shirt on the bed, which he draped over Landers’s shoulders. But Blanchard thought that he should put something else on Landers. He saw a jacket on the floor three or four feet away, just outside the door to the bedroom where they had found Landers.

{¶ 21} As Blanchard searched the jacket for weapons, Landers told him that the jacket belonged to Adams. Simultaneously, Blanchard felt a hard object in the pocket and pulled it out. The object was an ATM card from Dollar Bank bearing the name Gina Tenney. Blanchard testified that he also found a folded Mahoning County welfare card in the name of Bennie Adams in the pocket.

{¶ 22} The police officers immediately arrested Adams. When they searched him, they found a blue tissue in his pants pocket with two cigarette butts wrapped up in it.

{¶ 23} Fedelia, whose name was on the lease, consented to a search of the apartment she shared with Adams. In a bathroom wastepaper basket, police officers found a ring of ten keys with the letter G on the keychain. One of the keys fit Tenney’s apartment door and another key fit her automobile.

{¶ 24} In the kitchen, Blanchard found a potholder with hair and dirt on it in a wastebasket. Police officers later found a matching potholder atop the refrigerator in Tenney’s apartment.

{¶ 25} Police officers also found an unplugged television on a bed in Adams’s apartment. The serial number on the television matched the number on an empty television box later discovered in Tenney’s apartment. A wall unit in Tenney’s apartment contained an empty space for a television, and a cable-television line dangled in the space.

{¶ 26} In Tenney’s apartment, Blanchard saw no broken glass, broken furniture, or other indication that the home had been ransacked. A plate of food and a beer bottle were on the kitchen table. At trial, Blanchard claimed a “vague recollection” of “some disarray,” but he could not recall what he had observed. His contemporaneous investigative notes did not mention disarray or overturned furniture.

{¶ 27} Tenney’s friends told police investigators that Adams had been bothering Tenney for some time before her death. Sergeff and Marvin Robinson, another one of Tenney’s friends, testified that when they visited Tenney, Adams often stood in his doorway watching them or peeked out through the curtains. According to Robinson and Sergeff, Adams started calling Tenney late at night, asking her to invite him up to her apartment. The calls continued even after Tenney asked him to stop, and Tenney eventually changed her telephone number.

{¶ 28} Robinson also described an incident in which someone slipped a card in an envelope under Tenney’s back door addressed “to a very sweet and confused young lady” and signed “love, Bennie.” Police officers found the envelope in Tenney’s apartment but did not find the card.

{¶ 29} According to her friends, after the Christmas break-in Tenney’s emotional state changed from frustration with Adams to fear of him. For the next few nights, she asked a friend to stay over because she was afraid to be alone. Sergeff testified that Tenney specifically had said that she was afraid of Adams, a detail Sergeff did not include in her police statement given shortly after Tenney’s death.

{¶ 30} At trial, Tenney’s friends described their interactions with her during the last two days of her life. Sergeff and Tenney spent the evening of December 28, 1985, watching television in Tenney’s apartment. At some point, Passarello, Tenney’s ex-boyfriend, came over, and Sergeff asked him to drive her home. Passarello then returned to Tenney’s apartment. Passarello testified that Tenney did not feel secure in the apartment. He stayed the night, and the two had sexual relations.

{¶ 31} Passarello left the next day after lunch and went home to his apartment. Tenney left separately at the same time to meet a friend, Jeff Thomas, for an early afternoon movie.

{¶ 32} After the movie, Thomas and Tenney had dinner near the theater. Thomas testified that they talked about work and school, but Tenney kept bringing the conversation back to “the situation that was going on where she was living.” She told Thomas that she was very concerned about “the man downstairs.” Thomas described her as “apprehensive” and “borderline fearful.” Thomas and Tenney parted around 4:30 or 5:00 p.m.

{¶ 33} Tenney’s mother, Avalon Tenney, testified that her daughter had called her the day before she died and told her that she was afraid of Adams.

The identification of Adams

{¶ 34} As part of the homicide investigation, detectives obtained Tenney’s bank-account records from Dollar Bank. Her account records for December 29, 1985, showed six attempted transactions on her ATM card between 9:24 and 9:34 p.m.: three attempts to withdraw cash (all denied for insufficient funds), two phony attempted deposits using empty deposit envelopes, and an unsuccessful attempt to transfer funds between accounts.

{¶ 35} Police officers questioned other bank customers whose ATM cards were used at the same ATM machine around the same time as the attempted transactions using Tenney’s card. One customer, John Allie, told police officers that he saw a man at the ATM on the night in question.

{¶ 36} On January 8, 1986, Blanchard brought John Allie and his wife, Sandra Allie, who had also seen the man use the ATM, to the station to view an in-person lineup. There were six men in the lineup, including Adams and Landers. John Allie did not make an identification; Sandra Allie identified Landers as the man she saw at the ATM.

{¶ 37} At trial, John Allie testified that he had not identified anyone in the lineup because he was not comfortable with the number of people in the room. He also testified, “I told my wife, don’t say anything because we need to talk to detective Blanchard. Don’t mention nothing to nobody.”

{¶ 38} John Allie told the jury that he later telephoned Blanchard and said that the man from the ATM was third from the left, which was the place where Adams had stood in the lineup. John claimed that he returned to the police station the next day, met with Blanchard, viewed a photo array of three pictures, and made an identification of Adams.

{¶ 39} Sandra Allie testified at trial that she purposely made a false identification at the lineup. She testified that on the way to the station that day, John had expressed concern about putting her “in harm’s way.” When they arrived, they were taken to an office with other people present and not to the dark room that Sandra had been expecting. John then told her that “he didn’t like the surroundings.” “He gave me like the signal,” Sandra testified. “When asked if I could identify the person who was in the ATM I was just terrified, went to the extreme opposite and identified a short, light-skinned person.”

{¶ 40} Like her husband, Sandra Allie testified that she spoke to police officers some time after the lineup to identify “the actual person,” but said that the police officers did not request a statement about her misidentification at the first lineup or call her back to view a second lineup.

{¶ 41} At trial, the Allies both said that when they arrived at the bank that night, they saw a man in the ATM vestibule who appeared not to know how to use the ATM. The man’s face was covered by a hood and scarf, so that only his forehead, eyes, and the bridge of his nose were visible.

{¶ 42} Sandra Allie described the man as a little taller than she is. John Allie agreed that the man was “about medium height.” {¶ 48} At trial, Sandra Allie viewed a photograph of the six-man lineup and testified that person Number 3 (Adams) was the man at the ATM. John Allie also identified Adams.

{¶ 44} John Allie testified that when the man came out of the ATM vestibule, he stood in front of the Allies’ car and waved: “He put his hands — palms on the hood of my car and stood back, looked at me. I looked at him. He waved. I waved.” John recognized Adams from seeing him around the neighborhood, even though he did not know Adams’s name at the time.

{¶ 45} When the man started the car he was driving, John Allie heard it make an unusual sound. John testified that the vehicle was a Buick and identified it from photographs as Tenney’s car. When John came to the police station, he correctly picked out Tenney’s car from the 15 or 20 he was shown. An officer started the engine, and the car made the same sound that John had heard it make at the bank.

The parole officer’s interviews with Adams

{¶ 46} Adams’s former parole officer, William Soccorsy, testified that he interviewed Adams twice after his 1985 arrest. The first time they spoke, on December 30, 1985, Adams denied committing any crime and denied having any knowledge that any crime had been committed.

{¶ 47} On January 2, 1986, Soccorsy asked Adams about the ATM card. According to Soccorsy, Adams admitted that the jacket in which the card was found belonged to him. Soccorsy’s contemporaneous notes included a statement by Adams to the effect that he found the ATM card outside his building on the front step at around 11:30 a.m. on December 30,1985. Adams told Soccorsy that he rang Tenney’s doorbell to return the card but she was not home, so he put the card in his jacket pocket, intending to return it at some later time.

The autopsy of Tenney

{¶ 48} On December 31, 1985, an autopsy of Tenney’s body was performed under the supervision of Mahoning County Coroner Nathan D. Belinky, M.D.

{¶ 49} Dr. Belinky reported finding “ligature type contusion(s)” on the neck, as well as “doubletrack ligature type contusions” around both wrists. There were additional contusions and/or abrasions on both wrists, the abdomen and chest, both breasts, and around the nose, lips, and chin. There was blood coming from the right nostril. Dr. Belinky concluded that the cause of death was “traumatic asphyxiation,” and he ruled the death a homicide.

{¶ 50} Dr. Belinky was deceased when the case first came to trial in 2008, and the state called Dr. Humphrey Germaniuk as its expert forensic pathologist.

{¶ 51} Dr. Germaniuk testified that he reviewed Dr. Belinky’s autopsy report and the death certificate, as well as the videotape of the autopsy and photographs of the body and the scene. The photographs showed a bruise or contusion on the upper part of Tenney’s right lip and abrasions or contusions on her chin, a faint ligature mark on Tenney’s neck (which Dr. Germaniuk described as “superficial”), and ligature marks on her left and right wrists.

{¶ 52} Dr. Germaniuk ruled out drowning as a cause of death based on the absence of a “foam cone” around Tenney’s mouth. He concluded that the cause of death was asphyxia and the manner of death was homicide. But Dr. Germaniuk took issue with the phrase “traumatic asphyxiation” in the autopsy report, which he characterized as “somewhat inexact, somewhat incorrect.” He would have described the cause of death as “asphyxia,” which simply means lack of oxygen.

{¶ 53} Dr. Germaniuk observed a bruise or contusion on the upper part of Tenney’s right lip and abrasions or contusions on her chin. Although Dr. Germaniuk testified that the marks were consistent with smothering by means of a hand or object placed over her face, he also testified that the marks could have been caused by someone hitting her in the face. Dr. Germaniuk said that the evidence of smothering was not significant enough for him to declare that the cause of death with any reasonable medical certainty.

{¶ 54} Likewise, Dr. Germaniuk testified that there was evidence of ligature strangulation, including petechial hemorrhaging, but the ligature marks did not break the skin. The injuries could have been caused by strangulation or by being tied up, but Dr. Germaniuk could not say that ligature strangulation caused Tenney’s death. Dr. Germaniuk testified that the cause of death was “probably” some combination of smothering and/or ligature strangulation. Ultimately, Dr. Germaniuk was unable to opine as to a cause of death that was more specific than asphyxia.

{¶ 55} The autopsy report listed the time of death as 11:15 p.m. on December 29, based on a test of Tenney’s vitreous potassium. But according to Dr. Germaniuk, vitreous potassium is an inaccurate indicator of time of death and even in 1985, only the “uninformed” would have used vitreous potassium to determine time of death. Dr. Germaniuk explained that most other tests for time of death could not have been employed, because Tenney’s body had been found in the frigid waters of the Mahoning River. And though the time of death could possibly have been determined based on gastric emptying, i.e., by measuring the contents of the stomach, in order to make a reasonable calculation one has to know the time of the victim’s last meal. Assuming that Tenney last ate around 4:00 or 4:30 p.m. (when she and Thomas had dinner after the movie), Dr. Germaniuk estimated the time of death as between 5:00 and 10:30 p.m. But if Tenney had eaten later, his estimate of her time of death would have been different.

{¶ 56} The prosecution in questioning Dr. Germaniuk noted several times that police officers had found a telephone type of cord in the trunk of Tenney’s car. The cord was one-half centimeter wide and had no weaving pattern. The ligature marks were also one-half centimeter wide and showed no weave pattern. According to Dr. Germaniuk, the cord could have been used to make the ligature marks on Tenney’s neck and wrists, but because the cord was not different from thousands of other cords, he was unable to definitively say that the cord in the trunk was used on Tenney.

{¶ 57} Dr. Germaniuk testified that the autopsy team did not examine the body for signs of sexual trauma or assault.

DNA and fingerprint evidence

{¶ 58} When Adams was arrested in late 1985, police officers obtained samples of his pubic hair, saliva, and blood. Samples were also obtained from Landers, Passarello, and Tenney, and semen was found on a vaginal swab taken from Tenney. The samples from Adams, Landers, and Passarello were compared to the samples taken from Tenney.

{¶ 59} The semen on the swab came from a “type B nonsecretor.” Passarello is a type A secretor, and Landers was a type B secretor. Thus, blood testing in 1986 eliminated Passarello and Landers as the semen source.

{¶ 60} Adams, however, is a type B nonsecretor. Four percent of African-Americans are type B nonsecretors. Thus, the blood evidence at that time did not definitively prove that Adams, an African-American, was the source of the vaginal semen, but it placed him within the population of possible sources.

{¶ 61} The potholder in Adams’s apartment contained hair from an African-American and from a Caucasian with red hair, as well as pubic hair. Gina Tenney was Caucasian and had red hair. The red hair and pubic hair were consistent with Tenney’s. The sample of African-American hair was small fragments and was not sufficient for comparison purposes.

{¶ 62} Police officers found fingerprints of evidentiary value only on the television that was in Adams’s apartment. Investigators were able to lift nine usable prints from the television. Four prints matched Adams’s. The other five could not be matched to Tenney, Adams, or Landers.

{¶ 63} Despite the suspicions that Adams may have been involved in Tenney’s death, the investigation into Tenney’s death went cold in 1986. In January 1986, Adams was charged with one count of receiving stolen property based on the discovery of Tenney’s ATM card in his jacket pocket. The grand jury, however, later declined to indict Adams on the stolen-property charge.

{¶ 64} Police officers kept Adams in custody because he was a suspect in a rape that had occurred in nearby Boardman, Ohio. In November 1986, Adams was convicted in Mahoning County Common Pleas Court of kidnapping, rape, and aggravated robbery in that case. He served almost 18 years in prison, and he was released on parole on April 21, 2004.

The investigation resumes

{¶ 65} In 2007, more than 20 years after Tenney’s death, the Ohio attorney general invited police departments to submit cold-case evidence to the Ohio Bureau of Criminal Identification and Investigation (“BCI”) laboratory for DNA testing. The Youngstown police department submitted evidence from the Tenney case.

{¶ 66} The police department submitted Tenney’s underwear and vaginal swab for DNA testing and submitted a fresh DNA sample from Passarello. Because Tenney and Landers were both deceased, the department forwarded samples from 1986 that were still on file. Police officers also took a fresh DNA sample from Adams and submitted that to BCI.

{¶ 67} Based on the DNA analysis, Adams could not be excluded as the source of the DNA on the vaginal swab or the underwear. The odds that the DNA on the swab came from someone other than Adams were 1 in 38,730,000,000,000. The odds that the DNA on the underwear came from someone other than Adams were 1 in 63,490,000,000,000,000,000.

{¶ 68} DNA analysis excluded Landers as the source of the DNA on the swab and the underwear.

{¶ 69} Passarello’s DNA was found on Tenney’s underwear, but his DNA was not found in the vaginal-semen sample.

Procedural History

{¶ 70} Almost three and one-half years after he was released on parole for the Boardman rape and related convictions, police officers arrested Adams and charged him with aggravated murder in connection with Tenney’s 1985 death.

{¶ 71} On October 11, 2007, a grand jury returned a five-count indictment that was later superseded by an indictment returned on October 17, 2007. Count One charged Adams with aggravated felony murder (R.C. 2903.01(B)) with a single death-penalty specification, that Tenney’s murder was committed in the course of or immediately after committing or attempting to commit rape, aggravated burglary, aggravated robbery, and kidnapping. R.C. 2929.04(A)(7). Count Two charged Adams with rape (R.C. 2907.02(A)(2)), with a violent-sexual-predator specification under R.C. 2941.148(A). The remaining counts of the indictment set forth charges for aggravated burglary (R.C. 2911.11(A)), aggravated robbery (R.C. 2911.01(A)), and kidnapping (R.C. 2905.01(A)).

{¶ 72} The trial court dismissed all counts but the aggravated-murder charge on statute-of-limitations grounds, and the case proceeded to trial. After hearing the evidence, the jury returned a guilty verdict on the aggravated-murder charge and the accompanying capital specification.

{¶ 73} Following the presentation of mitigation evidence, the jury returned a recommendation of death. The trial court adopted the jury’s recommendation and sentenced Adams to death.

{¶ 74} Because this case involves a murder committed before January 1, 1995, Adams’s direct appeal was heard first by a court of appeals. See Ohio Constitution, Article IV, Sections 2(B)(2)(c) and 3(B)(2); State v. Davis, 131 Ohio St.3d 1, 2011-Ohio-5028, 959 N.E.2d 516, ¶ 12-14. The appellate court affirmed the conviction and sentence. 2011-Ohio-5361. Adams timely appealed to this court.

Analysis

{¶ 75} Adams submits 21 propositions of law. We address them out of order.

Pretrial Issues

Statute of limitations (Proposition of law XIII)

{¶ 76} The trial court dismissed Counts Two through Five of the indictment before trial based on the statute of limitations for those offenses that was in effect when they allegedly were committed. Adams also sought dismissal of the capital specification attached to Count One, the aggravated-murder charge, on the theory that if the statute of limitations barred the state from proving the predicate felonies, then it necessarily followed that the state could not present evidence necessary to prove the specification based on those felonies. The trial court disagreed because aggravated murder (R.C. 2903.01) has no limitations period. R.C. 2901.13(A)(2).

{¶ 77} Adams argues that if the predicate felonies are time-barred, then the aggravated-murder-count based on those felonies must also be time-barred. We do not agree.

{¶ 78} As our appellate courts have recognized, aggravated felony murder is a specific offense that is separate from the underlying felony, and the running of the statute of limitations on the underlying felony does not extinguish the aggravated-murder charge. See, e.g., State v. Stansberry, 8th Dist. Cuyahoga No. 78195, 2001 WL 755898, *3 (July 5, 2001) (conviction for aggravated murder in the course of an aggravated robbery was not time-barred, even though underlying charge of aggravated robbery was barred by statute of limitations); State v. Brown, 12th Dist. Clermont No. CA89-09-079, 1990 WL 165121, *4-5 (Oct. 29, 1990) (same). Similarly, our sister high courts have uniformly rejected the argument that an aggravated-felony-murder prosecution is time-barred if the predicate felonies are time-barred. See, e.g., State v. Dennison, 115 Wash.2d 609, 625-626, 801 P.2d 193 (1990); State v. Jones, 274 Ga. 287, 287-288, 553 S.E.2d 612 (2001); State v. Lacy, 187 Ariz. 340, 350, 929 P.2d 1288 (1996). See also People v. Seals, 285 Mich.App. 1, 13-16, 776 N.W.2d 314 (2009); Jackson v. State, 513 So.2d 1093, 1095 (Fla.App.1987).

{¶ 79} R.C. 2901.13(A)(2) plainly states that there is no statute of limitations for aggravated murder. We reject proposition of law XIII.

Speedy trial (Propositions of law V and XII)

{¶ 80} A criminal defendant has a right to a speedy trial under the Ohio Revised Code, the Ohio Constitution, and the Fifth and Sixth Amendments to the United States Constitution. Before his trial, Adams timely moved for dismissal based on alleged speedy-trial violations. The trial court denied the motion. In propositions of law V and XII, Adams argues that the state violated his statutory and constitutional rights to a speedy trial by prosecuting him in 2007 for a crime committed in 1985.

{¶ 81} The Revised Code requires that a person against whom a felony charge is pending shall be brought to trial within 270 days after the person’s arrest. R.C. 2945.71(C)(2). Speedy-trial provisions are mandatory, and courts must strictly enforce them. State v. Parker, 113 Ohio St.3d 207, 2007-Ohio-1534, 863 N.E.2d 1032, ¶ 15; State v. Hughes, 86 Ohio St.3d 424, 427, 715 N.E.2d 540 (1999). If the defendant is not brought to trial in the allotted time, the trial court must discharge the defendant upon a timely motion. R.C. 2945.73(B).

{¶ 82} Adams was arrested for Tenney’s murder on October 4, 2007. He concedes that his speedy-trial clock tolled on October 29, 2007, as a result of his counsel filing motions. It did not run after that because he later waived his speedy-trial rights. Because Adams was incarcerated during the time between October 4 and 29, 2007, he is entitled to triple-count the 24 days, see R.C. 2945.71(E), for a total of 72 days on the speedy-trial clock.

{¶ 83} Adams asserts that his 2007 arrest for aggravated murder should “relate back” to his 1985 arrest and that the time he was incarcerated in 1985 and 1986 should also count for speedy-trial purposes. We disagree.

{¶ 84} A later indictment is not subject to the speedy-trial timetable of an earlier indictment or arrest “when additional criminal charges arise from facts different from the original charges, or the state did not know of these facts at the time of the initial indictment” or earlier arrest. State v. Baker, 78 Ohio St.3d 108, 110, 676 N.E.2d 883 (1997). As noted above, Adams was never indicted on the charge of receiving stolen property. As the investigation progressed after his initial arrest, the evidence against him consisted of his possession of Tenney’s ATM card, television, and keys and the telephone call from John Allie to Blanchard identifying Adams as the man at the ATM.

{¶ 85} The most probative evidence linking Adams to the murder was unavailable to police officers at the time Adams was incarcerated after his 1985 arrest. Although investigators received the fingerprint analysis on January 29, 1986, and the lab report on the blood and semen samples, which excluded Landers and Passarello but not Adams, was completed on February 5, 1986, the key DNA test results were not available until after the investigation into the case was reopened in 2007.

{¶ 86} In the context here, we hold that the October 2007 murder indictment does not relate back to 1985 or 1986 for purposes of statutory speedy-trial analysis, because the evidence available in 2007 was not available at the time of the arrest in 1985 or in 1986. State v. Brown, 5th Dist. Stark No. 2007CA00129, 2008-Ohio-4087, 2008 WL 3412545, ¶ 25 (later indictment did not relate back because it “was based on evidence that was not available at the time of the original charge”); State v. Burrell, 1st Dist. Hamilton No. C-030803, 2005-Ohio-34, 2005 WL 27469, ¶ 13 (trial court did not err in failing to dismiss case because later indictment was based on new facts). Therefore, the state did not violate Adams’s statutory speedy-trial rights.

Constitutional speedy-trial rights

{¶ 87} In the second part of proposition of law XII, Adams claims that the state violated his constitutional right to a speedy trial under the Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution.

{¶ 88} To determine whether a defendant has been deprived of these constitutional speedy-trial rights, a court must balance four factors: (1) the length of the delay, (2) the reason for the delay, (3) the defendant’s assertion of a speedy-trial right, and (4) the prejudice to the defendant. State v. Selvage, 80 Ohio St.3d 465, 467, 687 N.E.2d 433 (1997); Barker v. Wingo, 407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).

{¶ 89} But before engaging in any balancing test under Selvage and Barker, the court must make a threshold determination concerning the length of delay. “ ‘Until there is some delay which is presumptively prejudicial, there is no necessity for inquiry into the other factors that go into the balance.’ ” (Emphasis sic.) State v. Hull, 110 Ohio St.3d 183, 2006-Ohio-4252, 852 N.E.2d 706, ¶23, quoting Barker at 530. Thus, length of delay serves as a triggering mechanism for the rest of the Barker analysis. Selvage at 467, 687 N.E.2d 433; Barker at 530.

{¶ 90} A delay becomes presumptively prejudicial as it approaches one year in length. Doggett v. United States, 505 U.S. 647, 652, 112 S.Ct. 2686, 120 L.Ed.2d 520 (1992), fn. 1. The crux of Adams’s constitutional argument is that the length of delay in his case was 22 years: the time between his initial arrest in 1985 and his indictment in 2007. But for constitutional speedy-trial-analysis purposes, most of that time does not count.

{¶ 91} When the government no longer holds a defendant under arrest or bail for a charge, the Speedy Trial Clause of the Sixth Amendment does not apply until the government rearrests or later indicts the defendant. United States v. Loud Hawk, 474 U.S. 302, 310-312, 106 S.Ct. 648, 88 L.Ed.2d 640 (1986); see also State v. Myers, 97 Ohio St.3d 335, 2002-Ohio-6658, 780 N.E.2d 186, ¶ 65 (when calculating length of delay under Barker, two-year period between dismissal of murder charge and reindictment on same charge does not count). The grand jury returned a “no bill” on the stolen-property charge against Adams in May 1986, which halted the constitutional clock until his arrest in 2007.

{¶ 92} Adams argues that our decision in State v. Meeker, 26 Ohio St.2d 9, 268 N.E.2d 589 (1971), dictates a different result. The defendant in Meeker pleaded guilty to robbery in 1963. Id. at 10. Almost six years later, the common pleas court granted his motions to vacate the sentence and for a new trial. Id. The grand jury then indicted Meeker on four counts, including armed robbery and theft of a motor vehicle, all arising out of the same events as the original robbery charge. Id. at 10-11. We held that the speedy-trial clock began to run on all of the offenses when the state elected to charge Meeker only with robbery in 1963. Id. at 18.

{¶ 93} Meeker applies only when a defendant is subject to an official prosecution for at least one related offense. See, e.g., Selvage, 80 Ohio St.3d at 466, 687 N.E.2d 433, fn. 1 (speedy-trial clock began to run when officer filed criminal complaint). The critical fact in Meeker that distinguishes it from the present case is that Meeker was in confinement during the entire six-year period for the earlier conviction. This was the basis on which we distinguished Meeker in State v. Luck, 15 Ohio St.3d 150, 153, 472 N.E.2d 1097 (1984): although 16 years passed between the crime and the indictment of Luck, Luck was never previously subject to arrest or indictment, and therefore his speedy-trial rights were never implicated and his speedy-trial clock did not begin to run before his indictment.

{¶ 94} Although Adams was incarcerated for much of the 22 years for the Boardman rape and related offenses, he was not subject to official prosecution or detention for crimes relating to Tenney after the grand jury declined to indict him in 1986. The speedy-trial clock began to run again only upon his 2007 arrest for Tenney’s murder. Doggett, 505 U.S. at 655, 112 S.Ct. 2686, 120 L.Ed.2d 520; United States v. Manon, 404 U.S. 307, 320, 92 S.Ct. 455, 30 L.Ed.2d 468 (1971) (Sixth Amendment’s Speedy Trial Clause does not apply prior to arrest, indictment, or other official accusation).

{¶ 95} Thus, for constitutional speedy-trial purposes, the only time we count is the period from Adams’s arrest on December 30, 1985, to the grand jury’s issuance of a “no bill” in May 1986, plus his 24 days of incarceration in October 2007. We hold that this period was not presumptively prejudicial, and we therefore do not need to reach the other elements of the Barker inquiry.

Preindictment delay

{¶ 96} In proposition of law V, Adams claims that the delay in commencing his prosecution violated his constitutional rights of due process.

{¶ 97} The Due Process Clause of the Fifth Amendment provides limited protection against preindictment delay. United States v. Lovasco, 431 U.S. 783, 789-790, 97 S.Ct. 2044, 52 L.Ed.2d 752 (1977); Marion, 404 U.S. at 324-325, 92 S.Ct. 455, 30 L.Ed.2d 468. We have recognized a comparable due-process protection under Article I, Section 16 of the Ohio Constitution. Luck, 15 Ohio St.3d 150, 472 N.E.2d 1097, at paragraph two of the syllabus. See State v. Walls, 96 Ohio St.3d 437, 2002-Ohio-5059, 775 N.E.2d 829, ¶ 51-52.

{¶ 98} A defendant alleging a due-process violation based on preindictment delay must present evidence establishing substantial prejudice to his right to a fair trial. United States v. Rogers, 118 F.3d 466, 475 (6th Cir.1997); Walls at ¶ 51. Unlike a Sixth Amendment speedy-trial claim, no presumption of prejudice arises in the due-process context when a preindictment delay exceeds a particular length of time. United States v. Schaffer, 586 F.3d 414, 425 (6th Cir.2009). But a delay in commencing prosecution is not justified when the state uses the delay to gain a tactical advantage or through negligence or error ceases its investigation and then later, without new evidence, decides to prosecute. Marion at 324; Luck at 158.

{¶ 99} We have held that if the defendant makes a preliminary showing of substantial prejudice, then the burden shifts to the state to present evidence of a justifiable reason for the delay. State v. Whiting, 84 Ohio St.3d 215, 217, 702 N.E.2d 1199 (1998); Walls at 452-453. Some courts, including the Sixth Circuit, have held that under the Fifth Amendment, the defendant retains the burden of proof at all times and must affirmatively demonstrate both substantial prejudice to his right to a fair trial and that the delay was an intentional device by the government to gain a tactical advantage. See Schaffer at 424.

{¶ 100} The burden upon a defendant seeking to prove that preindictment delay violated due process is “ ‘nearly insurmountable,’ ” especially because proof of prejudice is always speculative. United States v. Montgomery, 491 Fed.Appx. 683, 691 (6th Cir.2012), quoting Rogers at 477, fn. 10.

{¶ 101} Adams has failed to demonstrate substantial prejudice. Indeed, we find no evidence in the record that Adams was prejudiced by the passage of time prior to indictment. His claim thus fails to set forth a violation of the federal or Ohio Constitution.

{¶ 102} At the hearing on the dismissal motion, Blanchard testified that Horace Landers died in May 1988. Adams points to the death of this witness as evidence of prejudice.

{¶ 103} The death of a potential witness during the preindictment period can constitute prejudice, but only if the defendant can identify exculpatory evidence that was lost and show that the exculpatory evidence could not be obtained by other means. Rogers, 118 F.3d at 475. Adams has failed to explain what exculpatory testimony Landers might have offered and thus has not established prejudice. Id. at 475-476; United States v. Woods, 6th Cir. No. 98-6452, 2000 WL 353516, *2 (Mar. 31, 2000). If anything, Landers’s absence at trial was a benefit to Adams’s defense because Landers had implicated Adams in the murder before he died. Compare Luck, 15 Ohio St.3d at 157-158, 472 N.E.2d 1097 (when defendant claimed that killing was in self-defense, the absence of a witness who saw the killing and could have corroborated the claim was prejudicial).

{¶ 104} Next, Adams alleges that some records of the 1986 grand-jury proceedings against him, including witness testimony, have been lost. However, the trial court indicated that the grand-jury transcripts were discovered, along with other (unidentified) files once thought lost. Adams objects that a Miranda form he signed was lost, but he does not explain how a missing Miranda waiver form might be exculpatory. See United States v. Szilvagyi, 417 Fed.Appx. 472, 479 (6th Cir.2011) (defendant failed to show that allegedly destroyed documents were exculpatory and that they had in fact been destroyed).

{¶ 105} Adams also complains that witnesses’ memories had faded. But the possibility that memories will fade, witnesses will become inaccessible, or evidence will be lost is not sufficient to establish actual prejudice. Marion, 404 U.S. at 325-326, 92 S.Ct. 455, 30 L.Ed.2d 468.

{¶ 106} Finally, Adams claims that the delay prejudiced him because he was unable to recall the names of potential witnesses he saw at a party on December 29, 1985, who might have been able to supply him with an alibi. Adams wanted those alibi witnesses to place him at the party at the time fixed as the time of death by the coroner. But at trial, defense counsel elicited testimony from Dr. Germaniuk refuting the coroner’s time-of-death calculation. Once the defense expanded the potential window for the time of death, the alibi witnesses became irrelevant.

{¶ 107} Because Adams fails to meet his burden to show prejudice, it is unnecessary for us to consider the reasons for the preindictment delay. Schaffer, 586 F.3d at 425. Nevertheless, we observe that Adams’s allegation that the state intentionally delayed prosecution to create a tactical advantage does not withstand scrutiny.

{¶ 108} Adams contends that the delay conferred a tactical advantage on the prosecution because in 1991 we overruled prior precedent and announced new standards that made it easier to convict a defendant based purely on circumstantial evidence. State v. Jenks, 61 Ohio St.3d 259, 574 N.E.2d 492 (1991), paragraphs one and two of the syllabus, overruling State v. Kulig, 37 Ohio St.2d 157, 309 N.E.2d 897 (1974). Of course, in 1986 prosecutors could not have anticipated our decision in Jenks, which was still five years in the future. Thus, there is no showing that they delayed the prosecution of Adams to secure more favorable precedent to apply to him.

{¶ 109} Alternatively, Adams contends that the state’s failure to try him in 1986 for any offenses involving Tenney, before he was convicted of the Boardman rape and related offenses, “certainly” impacted his decision whether to testify. As a preliminary matter, there is no evidence in the record that Adams actually intended to testify and was dissuaded from doing so, and thus there is no showing of substantial prejudice to him. See State v. Williams, 203 Or.App. 183, 190, 125 P.3d 93 (2005) (defendant failed to show substantial prejudice because there was no evidence that he intended to testify or regarding what he would have said on the stand). Even if the state waits until the conclusion of one prosecution before initiating a second, it does not automatically follow that the delay resulted from scheming to achieve a tactical advantage regarding the defendant’s decision to testify. Black v. Goord, 419 F.Supp.2d 365, 372-373 (W.D.N.Y.2006).

{¶ 110} But the most significant flaw in Adams’s theory is that if the state’s true intention was to secure convictions in the Boardman case to use against him in the prosecution for Tenney’s death, then logically the prosecution for Tenney’s death should have commenced soon after he was convicted of the Boardman rape and related offenses in November-1986. Adams’s theory fails to explain why the state waited two decades more to charge him in Tenney’s death or how that delay benefited the state.

{¶ 111} We hold that Adams has failed to demonstrate a denial of his due-process right to a fair trial under either the Fifth Amendment or the Ohio Constitution.

Findings of fact

{¶ 112} Adams protests the trial court’s failure to state its findings of fact when it denied his motion for dismissal. See Crim.R. 12(F). Crim.R. 12(F) is not self-executing; if a defendant does not request findings of fact, any error is forfeited. State v. LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, ¶ 47. Even assuming that Adams properly requested findings (the request was a single sentence buried within a 35-page omnibus motion), we find that the trial court’s findings satisfied its obligations under Crim.R. 12.

{¶ 113} With respect to the due-process claim, the trial court did make detailed findings of fact. The court expressly found (1) that Horace Landers’s absence was not prejudicial, because he was a prosecution witness, (2) that the defense could not demonstrate the value of any potential alibi witnesses, and (3) that missing grand-jury transcripts had been located.

{¶ 114} As for the Sixth Amendment and statutory speedy-trial claims, the trial court was not required to issue findings of fact before rejecting these claims. Crim.R. 12(F) requires a court to make findings of fact only “[w]here factual issues are involved in determining a motion.” A court is not required to make findings of fact when the evidence is undisputed. Bauer v. Cleveland Ry. Co., 141 Ohio St. 197, 203, 47 N.E.2d 225 (1943); In re Haubeil, 4th Dist. Ross No. 01CA2631, 2002-Ohio-4095, 2002 WL 1823001, ¶ 8.

{¶ 115} The facts required to resolve these claims were not in dispute. The parties agreed that the grand jury refused to indict Adams for receiving stolen property in 1986 and that he was not arrested for murder until 2007. The rest of the analysis presents purely legal questions.

{¶ 116} Based on the foregoing, we reject propositions of law V and XII.

Jury-Selection Issues

Voir dire time limits (Proposition of law I)

{¶ 117} In his first proposition of law, Adams asserts that the trial court’s imposition of short and arbitrary time limits during small-group voir dire prevented counsel from conducting a meaningful voir dire. Alternatively, he contends that the trial court’s manner of questioning denied him meaningful voir dire.

{¶ 118} At the start of voir dire, the trial court divided the venire into panels of approximately five prospective jurors each. The small-panel sessions provided the only opportunity to question prospective jurors about the death penalty, their exposure to pretrial publicity, and their concerns about sequestration. The court limited each panel to one hour total.

{¶ 119} R.C. 2945.27 and Crim.R. 24(B) afford counsel the opportunity to conduct reasonable voir dire of prospective jurors. State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d 1173, ¶ 48. But the length and scope of voir dire are within the sound discretion of the trial court “and vary depending on the circumstances of a given case.” LaMar, 95 Ohio St.3d 181, 2002-Ohio-2128, 767 N.E.2d 166, at ¶ 40. Time limits on voir dire questioning are permissible in capital cases, State v. Nields, 93 Ohio St.3d 6, 28, 752 N.E.2d 859 (2001), and will be deemed prejudicial only if they constitute a clear abuse of discretion, State v. Cornwell, 86 Ohio St.3d 560, 565, 715 N.E.2d 1144 (1999).

{¶ 120} Adams’s attorneys never objected on the record to the time limits or requested additional time to inquire. We therefore review the matter only for plain error. State v. Jones, 135 Ohio St.3d 10, 2012-Ohio-5677, 984 N.E.2d 948, ¶ 204 (failure to object waives all but plain error). “ ‘Plain error does not exist unless it can be said that but for the error, the outcome of the trial would clearly have been otherwise.’ ” State v. Adamson, 72 Ohio St.3d 431, 434-435, 650 N.E.2d 875 (1995), quoting State v. Moreland, 50 Ohio St.3d 58, 62, 552 N.E.2d 894 (1990).

{¶ 121} It is impossible to know what information, if any, additional questioning of prospective jurors might have elicited. Thus, even assuming that the time limits for voir dire were too restrictive, we cannot say that but for the erroneous time limits, the outcome of the trial would have been otherwise. Therefore, we hold that no plain error occurred. See State v. Frazier, 115 Ohio St.3d 139, 2007-Ohio-5048, 873 N.E.2d 1263, ¶ 108 (there is no plain error when a claim is speculative).

{¶ 122} Alternatively, Adams objects to the manner in which the court questioned prospective jurors, describing it as “bullying” and “browbeating.” In particular, the trial court pressed the members of panel 6 regarding their ability to follow the law. The court challenged those prospective jurors on the inconsistency of supporting capital punishment in the abstract while professing a personal inability to impose a capital sentence. The trial judge told panel members that if they sat on the jury that found Adams guilty and believed that the aggravating circumstance outweighed the mitigating factors, but nevertheless refrained from imposing a death sentence as the law required, then they would be guilty of juror misconduct.

{¶ 123} After the panel 6 members left the courtroom, the state moved to strike one of the prospective jurors for cause, and the defense moved to strike the entire panel for cause. Defense counsel expressed the opinion that the court’s language, particularly the references to juror misconduct, could be construed as directing the prospective jurors to reach a specific death-penalty result later in the case. The trial court overruled both motions. Three members of panel 6 sat on the jury that convicted Adams and sentenced him to death.

{¶ 124} The trial court has a duty to ensure that jurors can fairly and impartially consider the death penalty in accordance with the law and to determine whether they are unable to obey the law. State v. Lundgren, 73 Ohio St.3d 474, 481-482, 653 N.E.2d 304 (1995). Adams asserts that the trial court went too far in carrying out those purposes and predisposed jurors to impose the death penalty. {¶ 125} We do not condone the trial court’s questions and comments, but we find no abuse of discretion in the trial court’s questioning of the panel.

{¶ 126} A trial court has wide discretion over both the questions allowed during voir dire and the manner in which voir dire is accomplished. State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, ¶ 54; State v. Twyford, 94 Ohio St.3d 340, 345, 763 N.E.2d 122 (2002). In hindsight, some of the trial court’s remarks were inartful. In particular, we find that the repeated references to possible charges of juror misconduct were ill-chosen. But at no time did the court give an incorrect instruction of law or direct potential jurors to reach a specific verdict if they were impaneled. We decline to hold that the trial court abused its discretion in the manner that it conveyed correct information, but we caution judges to be mindful that their role is to ensure that jurors are aware of what the law requires. That information usually can be conveyed without resorting to discussions of juror misconduct.

{¶ 127} Finally, Adams objects to certain gaps and inconsistencies in the record. For example, on the first day of voir dire, the court in chambers excused prospective juror No. 18 for cause. Shortly thereafter, the court indicated to counsel that prospective juror No. 18 would be part of panel 2, and no one commented or objected. The next day, counsel and the court questioned prospective juror No. 18 in the small-group session. Later, they questioned prospective juror No. 18 again during the final large-group voir dire.

{¶ 128} Ultimately, near the end of voir dire, the trial court in chambers sua sponte dismissed prospective juror No. 18 for cause, and in the process of doing so, inadvertently indicated that that prospective juror No. 18 may not have been the same prospective juror No. 18 who was excused for cause on the first day. The trial court greeted the first prospective juror No. 18 as “sir,” and later stated “[h]e’s excused” when dismissing him for cause on the first day. The record suggests that the prospective juror No. 18 dismissed near the end of voir dire may have been female, as the trial court seems to have referred to that prospective juror by using the word “her” after that dismissal for cause.

{¶ 129} The record is unclear in other ways.

{¶ 130} As a representative example, according to the transcript, panel 8 included prospective juror No. 257, even though the trial court had earlier excused prospective juror No. 257 for cause on the first day of voir dire and even though prospective juror No. 257 was never mentioned again as the questioning of panel 8 progressed. And panel 8 included one prospective juror, prospective juror No. 290, who wandered in after the court had given lengthy instructions and who was later privately voir dired by the trial court. Many of the panels included multiple prospective jurors who were added without explanation, and some of the panels did not include prospective jurors who were scheduled to be on, them but who apparently were excused without an explanation entered on the record.

{¶ 131} Applying a plain-error analysis, we cannot say that any concerns of this type affected the outcome of the trial. Indeed, the lack of comment or objection by any party suggests that the events in question were clear, at least at the time that they occurred, to the participants. We therefore reject proposition of law I.

Incomplete record (Proposition of law XVIII)

{¶ 132} In proposition of law XVIII, Adams argues that the incomplete voir dire record denies him effective appellate review and therefore due process. He points not only to the removal and substitution of numerous potential jurors but also the trial court’s in-chambers discussion with prospective juror No. 175 prior to that prospective juror’s excusal for cause.

{¶ 133} Adams bases his argument on our decision in State v. Clinkscale, 122 Ohio St.3d 351, 2009-Ohio-2746, 911 N.E.2d 862. Clinkscale involved the dismissal of a sitting, deliberating juror who purportedly was the sole dissenting vote against a verdict of conviction. See id. at ¶ 16-18. We held that the trial court’s failure to make a record of the juror’s dismissal was materially prejudicial because we could not determine if the trial court had obtained the consent of the parties before dismissing the juror. Id. at ¶ 18-20.

{¶ 134} Clinkscale is inapplicable here for three reasons.

{¶ 135} First, we agree with the reasoning of the court of appeals below that the removal of a deliberating juror, possibly because that juror is emerging as a “holdout” on the verdict, implicates constitutional rights in a way very different from any right associated with dismissing a potential juror from the jury pool. See 2011-Ohio-5361, 2011 WL 4923522, at ¶ 220; Clinkscale at ¶ 15.

{¶ 136} Second, the trial court in this ease did make a record of what occurred after the fact and gave the parties an opportunity to ask questions or be heard. See State v. Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865, ¶207.

{¶ 137} And third, Adams had already attempted to have prospective juror No. 175 removed, albeit for other reasons, before the trial judge sua sponte dismissed him. For these reasons, Adams cannot show prejudice by the dismissal of prospective juror No. 175 a day later.

{¶ 138} As for the other gaps in the record, this court will not reverse based on an incomplete record, even in a capital case, unless the appealing party demonstrates that he or she lodged an objection at the time or requested to have the matter placed on the record, attempted to reconstruct the record, and suffered material prejudice. State v. Palmer, 80 Ohio St.3d 543, 554, 687 N.E.2d 685 (1997). Adams lodged no objection to the dismissal of potential jurors and the substitutions on the panels, made no effort to reconstruct the record, and has not demonstrated prejudice.

{¶ 139} We reject proposition of law XVIII.

For-cause excusals (Proposition of law XV)

{¶ 140} In proposition of law XV, Adams contends that the trial court improperly dismissed two prospective jurors for cause. Adams argues that under R.C. 2945.25(C) and Witherspoon v. Illinois, 391 U.S. 510, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968), the trial court may excuse prospective jurors for cause during the death-qualification process only if the jurors unequivocally state that they will not recommend death under any circumstance.

{¶ 141} We have rejected this argument more than once. See State v. Davis, 116 Ohio St.3d 404, 2008-Ohio-2, 880 N.E.2d 31, at ¶ 55. The constitutional standard governing dismissal of a prospective juror for cause based on opposition to the death penalty is set forth in Wainwright v. Witt, 469 U.S. 412, 105 S.Ct. 844, 83 L.Ed.2d 841 (1985). Dismissal for cause is proper under R.C. 2945.25(0) if “the juror’s views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oath.” State v. Williams, 99 Ohio St.3d 493, 2003-Ohio-4396, 794 N.E.2d 27, ¶ 40.

{¶ 142} Prospective juror Nos. 55 and 233 both said that they could not sign a death verdict. It was proper to excuse them under R.C. 2945.25(0) because they could not perform their duties as jurors. State v. Brinkley, 105 Ohio St.3d 231, 2005-Ohio-1507, 824 N.E.2d 959, ¶ 86-92 (trial court did not abuse its discretion by excusing prospective juror who would not vote for death penalty even if the law required it).

{¶ 143} We reject proposition of law XIV.

Pretrial publicity and venue (Proposition of law VIII)

{¶ 144} In proposition of law VIII, Adams argues that the voir dire time constraints prohibited meaningful inquiry into the exposure of potential jurors to prejudicial pretrial publicity, and he claims ineffective assistance of counsel based on trial counsel’s failure to seek a change of venue.

{¶ 145} During voir dire, two members of panel 4, prospective juror Nos. 55 and 60, stated that they had heard about the case before coming to court. Prospective juror No. 55 had read in the newspaper that the police had not found the person who committed the murder in 22 years and that Adams’s DNA matched the evidence in the case. The court asked prospective juror No. 55 whether she could be fair and impartial. At first, the prospective juror answered, “I think so,” but when the court pressed for a more definitive response, the answer became “yes.”

{¶ 146} The court then questioned prospective juror No. 60 about what he had heard. That prospective juror answered, “Primarily what this woman [prospective juror No. 55] said, what I’ve read in the paper, and after all these years and the DNA, seemed like they had the guy to me.” Prospective juror No. 60 admitted to having already formed the opinion that Adams was guilty and stated that it would be hard to set that opinion aside.

{¶ 147} The court asked the other members of panel 4 if what they had just heard concerning DNA influenced them. Prospective juror No. 233 stated, “It makes you wonder, but no, I believe I should hear all the evidence, no.”

{¶ 148} The court excused prospective juror No. 60 in front of the other members of panel 4. Outside the presence of the panel, the court later sua sponte excused prospective juror No. 55 for cause, not because of her exposure to information about the case, but based on her answers about whether she could sign a death-verdict form.

{¶ 149} The defense then moved to excuse all the remaining members of panel 4 for cause, based upon the comments about DNA made by prospective juror Nos. 55 and 60. The court denied the motion because the prospective jurors all had said that they could be fair and impartial. One member of panel 4, juror No. 220, was eventually seated on the jury.

{¶ 150} We will not presume that improper comments tainted an entire jury panel. State v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 98. The party challenging the entire jury panel has the burden to show either that the jurors were unlawfully impaneled or that the jurors could not be fair and impartial. State v. Knight, 11th Dist. Portage No. 2008-P-0107, 2009-Ohio-4102, 2009 WL 2488045, ¶ 13; State v. Feagin, 5th Dist. Richland No. 05 CA 1, 2006-Ohio-676, 2006 WL 337382, ¶ 23.

{¶ 151} Adams has presented no basis upon which we can conclude that juror No. 220, or anyone else who served on the jury that convicted Adams, was improperly influenced by the comments of prospective juror Nos. 55 and 60. We hold that the trial court did not abuse its discretion in denying the motion to excuse the entire voir dire panel.

{¶ 152} Alternatively, Adams claims ineffective assistance of counsel because his trial attorneys did not seek a change of venue based on pretrial publicity. But the decision whether to seek a change of venue is a matter of trial strategy and is thus not subject to second-guessing by a reviewing court as ineffective assistance. State v. Bryan, 101 Ohio St.3d 272, 2004-Ohio-971, 804 N.E.2d 433, ¶ 156.

{¶ 153} Moreover, it is unlikely that a change-of-venue motion would have been successful given the scant evidence of prejudicial publicity in the record.

{¶ 154} Some degree of media exposure is not sufficient to establish actual juror bias. State v. Maurer, 15 Ohio St.3d 239, 251-252, 473 N.E.2d 768 (1984). “It is sufficient if the juror can lay aside his impression or opinion and render a verdict based on the evidence presen