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State v. Wilks

Supreme Court of Ohio

April 24, 2018

The State of Ohio, Appellee,
v.
Wilks, Appellant.

          Submitted January 24, 2018

          Appeal from the Court of Common Pleas of Mahoning County, No. 13 CR 540.

          Paul J. Gains, Mahoning County Prosecuting Attorney, and Ralph M. Rivera, Assistant Prosecuting Attorney, for appellee.

          McGarry Law Office and Kathleen McGarry; and John P. Parker, for appellant.

          French, J.

         {¶ 1} Appellant, Willie Wilks Jr., was convicted of the aggravated murder of Ororo Wilkins and the attempted murders of Alexander Morales Jr. and William Wilkins Jr. A jury recommended, and the trial court imposed, a sentence of death. In this appeal as of right, we affirm appellant's convictions and death sentence.

         I. TRIAL EVIDENCE

         A. Argument at appellant's home

         {¶ 2} Evidence introduced at trial showed that around noon on May 21, 2013, Morales and William Wilkins (nicknamed "Mister") drove to the Youngstown home of Mary Aragon, Mister's mother, to borrow money from her. But appellant, who was Aragon's boyfriend, had both of her bank cards, so the three of them went to appellant's nearby home to get the cards.

         {¶ 3} Aragon knocked on the door and asked appellant for the cards; he agreed to give them to her but did not bring them outside. Mister then knocked on the door and asked appellant for the cards. Appellant told Mister that he would get them and asked Mister to come to the corner of the house.

         {¶ 4} Appellant soon came outside and gave Mister one card but not the other. Appellant then asked Mister to walk to the back of the house with him. Mister observed appellant "fidgeting in his pants" as if he had a weapon. Mister became angry, they exchanged words, and Mister tried to start a fight.

         {¶ 5} Appellant entered his house. He returned with a 9 mm handgun, chased Mister down the street, and pointed the gun at him. Mister did not believe that appellant would shoot him because people were around. Mister taunted appellant and called him names. When appellant saw Morales, appellant put the gun in his pocket. Morales introduced himself, and appellant said, "You better get your boy." Morales replied that they had come just to get the bank cards and did not want any trouble. Appellant handed the second bank card to Morales, and Morales, Mister, and Aragon left.

         B. Mister's phone call with appellant

         {¶ 6} Later that afternoon, Mister, Morales, and two other individuals played basketball at a nearby playground. About 45 minutes after they started playing, Mister placed a phone call to Aragon. Mister asked his mother, "Why would you let [appellant] do that in front of [you]? Why would you be on his side?"

         {¶ 7} Appellant got on the phone with Mister, and they had a heated discussion. Appellant told Mister that he was going to kill him. Appellant asked Mister where he was, but Mister refused to tell him. Mister called appellant a name and hung up.

          C. Murder of Ororo and attempted murders of Morales and Mister

         {¶ 8} Later in the afternoon that same day, Mister and Morales drove to Mister's home, which was a short distance from Aragon's home. Mister was living with his girlfriend, Renea Jenkins, their three children, and Renea's mother.

         {¶ 9} Upon arriving, Morales and Mister joined a gathering on the front porch. Soon thereafter, Mister went inside the house to his upstairs bedroom and Renea, her sister and brother, Shantwone and Antwone Jenkins, and Renea's two older children also went inside. Ororo Wilkins, Mister's sister, remained seated on the porch with Morales, who was holding Renea's five-month-old daughter.

         {¶ 10} "[N]o more than ten minutes" after he and Mister arrived, Morales saw a "dark-color blue/purplish * * * Dodge Intrepid" near the house. Appellant exited the car, walked toward the porch, raised an "AK" rifle, and asked where Mister was. Morales turned with the baby to go inside the house. Appellant shot him in the back, and Morales dropped the baby and fell just inside the house. Appellant then shot Ororo in the head when she went to pick up the baby. Morales ran to the back of the house and collapsed in the kitchen.

         {¶ 11} Mister witnessed the events from his upstairs bedroom. After hearing a car "skidding, " he looked out the window and saw a car "like a purple Intrepid" parked in front of the house. Two people were in the front seats, and appellant was in the back. Appellant was wearing a hooded shirt with the hood up. Mister saw appellant walk toward the front porch carrying "some kind of rifle" and then saw appellant shooting toward the porch.

         {¶ 12} Mister screamed, and appellant looked up and fired at him. Appellant's hood came off, and Mister made eye contact with him. Mister was not hit by the gunfire and went downstairs. But the car was gone when Mister got to the porch.

         {¶ 13} Renea called 9-1-1. On the recording of the 9-1-1 call, Mister can be heard repeatedly yelling, "He killed my sister" and "I watched him kill my sister." When police officers arrived at the scene, they found Mister holding Ororo's body in his arms, and Officer Jessica Shields heard him scream, "Willie did this. I don't know why Willie did this." Officer Melvin Johnson found Morales lying in the kitchen doorway. Morales told the officer that appellant did the shooting.

         {¶ 14} Mister told Officer Shields that a black Dodge Stratus had squealed to a halt outside the house, causing him to look out the window. He told her that he then saw appellant jump out of the back seat with a big gun, which he thought was an AK-47.

         {¶ 15} Investigators found a single 7.62 x 39 mm shell casing on the front porch. There was also a bullet strike near the front-door window and a bullet strike on the upper-story siding.

         {¶ 16} Police broadcast a BOLO (be-on-the-lookout) request for appellant and for a dark-colored Intrepid and/or a silver minivan registered to his mother. They later learned that appellant purchased a 2004 purple Dodge Stratus four days before the shooting.

         D. Appellant's arrest

         {¶ 17} On May 22, 2013-the day after the shooting-the police received a tip that appellant was driving a silver minivan. The minivan was spotted in Youngstown that afternoon. Appellant was driving the minivan and was the only person in the vehicle. The police followed appellant into a residential area, where he abandoned the vehicle and fled. He was apprehended after a short chase on foot.

         {¶ 18} When the police searched appellant, they found a little over $2, 000 in cash and one of Aragon's bank cards. They found a fully loaded 9 mm handgun in the van, and they recovered a 9 mm magazine near the van. Appellant's hands were swabbed for gunshot residue ("GSR") at the police station.

          {¶ 19} Police never recovered appellant's purple Dodge Stratus. And although Mister later identified the other two occupants of the car in a police photo array, the police were unable to find them.

         E. Autopsy results

         {¶ 20} Dr. Joseph Ohr, the Mahoning County medical examiner, conducted Ororo's autopsy. He testified that Ororo died from a gunshot wound to the head. The bullet entered the side of her head between her eye and ear and exited at the back of her head. The exit wound was "five, six centimeters" by "two and a half centimeters" in size. Dr. Ohr said that the damage to Ororo's head was "consistent with a very fast moving bullet, regardless of the caliber."

         {¶ 21} Dr. Ohr also found a gunshot wound in the heel of Ororo's left hand. No soot was found that might have shown that the muzzle was near Ororo's hand when the gun was fired. Dr. Ohr said that it was possible that Ororo's hand was raised and that the same shot caused both wounds.

         F. Forensic evidence

         {¶ 22} Martin Lewis, a forensic scientist in the trace-evidence section of the Ohio Bureau of Criminal Investigation ("BCI"), examined the GSR collected from appellant. He testified that "particles [were] highly indicative of gunshot primer residue * * * on both of the samples."

         {¶ 23} Joshua Barr, a forensic scientist in the firearms section of BCI, examined the 7.62 x 39 mm cartridge. He testified that this cartridge is most commonly fired by an SKS (a semiautomatic carbine) or an AK-47 rifle. The police never recovered the murder weapon, however.

         {¶ 24} Barr also examined two lead fragments found at the scene, but they were unsuitable for microscopic comparison. A lead fragment removed from Morales was also unsuitable for testing.

          II. CASE HISTORY

         {¶ 25} Appellant was indicted on nine counts. Count 1 charged that appellant, purposely and with prior calculation and design, committed the aggravated murder of Ororo. Count 1 included a death-penalty specification for a course of conduct involving the purposeful killing of, or attempt to kill, two or more persons, under R.C. 2929.04(A)(5).

         {¶ 26} Count 2 charged appellant with the murder of Ororo, by improperly discharging a firearm into a habitation. Counts 3 and 4 charged appellant with the attempted murders of Morales and Mister, respectively. Counts 5 and 6 charged appellant with felonious assault. Count 7 charged him with discharging a firearm into an occupied structure. Counts 1 through 7 each included a firearm specification. Counts 8 and 9, charging appellant with having a weapon while under a disability, were severed from the other counts and later dismissed.

         {¶ 27} Appellant pleaded not guilty to all the remaining charges. A jury found appellant guilty of all charges and specifications.

         {¶ 28} Appellant was sentenced to death for the aggravated murder of Ororo. He was also sentenced to 11 years in prison for each attempted-murder count and 9 years for the firearm specifications, for a total of 31 years. The trial court ordered the prison sentences to run consecutively to the death sentence.

         {¶ 29} Appellant now appeals his convictions and his death sentence, raising 19 propositions of law. We address some of appellant's propositions of law out of order.

         III. ANALYSIS

         A. Failure to present exculpatory evidence to the grand jury

         {¶ 30} In proposition of law No. III, appellant argues that his constitutional right to a fair grand-jury proceeding was violated because the state failed to present exculpatory evidence to the grand jury. Appellant argues that the state should have presented evidence that two witnesses said that the shooter was wearing dreadlocks (testimony that appellant did not wear dreadlocks was presented at trial) and his video-recorded police statement denying all involvement in the case.

         {¶ 31} In United States v. Williams, 504 U.S. 36, 51-52, 112 S.Ct. 1735, 118 L.Ed.2d 352 (1992), the Supreme Court of the United States held that a prosecutor has no duty to present exculpatory evidence to the grand jury. Williams states that "requiring the prosecutor to present exculpatory as well as inculpatory evidence would alter the grand jury's historical role, transforming it from an accusatory to an adjudicatory body." Id. at 51. The court emphasized that "[i]t is axiomatic that the grand jury sits not to determine guilt or innocence, but to assess whether there is adequate basis for bringing a criminal charge." Id.

         {¶ 32} Appellant argues that authoritative sources support a requirement on the part of prosecutors to disclose exculpatory evidence to grand juries. He cites materials published by the United States Department of Justice and the American Bar Association ("ABA"). Section 9-11.233 of U.S. Department of Justice, United States Attorneys' Manual (1997) states:

It is the policy of the Department of Justice * * * that when a prosecutor conducting a grand jury inquiry is personally aware of substantial evidence that directly negates the guilt of a subject of the investigation, the prosecutor must present or otherwise disclose such evidence to the grand jury before seeking an indictment * * *. While a failure to follow the Department's policy should not result in dismissal of an indictment, appellate courts may refer violations of the policy to the Office of Professional Responsibility for review.

(Emphasis added.) Until 2015, Standard 3-3.6(b) of American Bar Association, ABA Standards for Criminal Justice: Prosecution Function (3d Ed.1993) stated, "No prosecutor should knowingly fail to disclose to the grand jury evidence which tends to negate guilt or mitigate the offense." But neither the Justice Department manual nor the ABA criminal-justice standards are binding on Ohio's grand-jury process, and any failure to follow them here did not violate appellant's constitutional rights. In any event, we do not view the allegedly exculpatory evidence as substantial.

         {¶ 33} Alternatively, appellant attempts to rely on recommendations made by Ohio task forces established by this court. But none of the recommendations he cites have become law, and they have no impact here.

         {¶ 34} We conclude that the prosecutor had no obligation, constitutional or otherwise, to present allegedly exculpatory evidence to the grand jury.

         {¶ 35} We reject proposition of law No. III.

         B. Prosecutorial misconduct before the grand jury

         {¶ 36} In proposition of law No. IV, appellant argues that his constitutional rights were violated because of prosecutorial misconduct allegedly committed during the grand-jury proceedings.

         1. Legal principles

         {¶ 37} We begin with the general principles that traditionally, the grand jury has had "wide latitude to inquire into violations of criminal law" and that the "technical procedural and evidentiary rules governing the conduct of criminal trials" do not restrain its operation. United States v. Calandra, 414 U.S. 338, 343, 94 S.Ct. 613, 38 L.Ed.2d 561 (1974). Additionally, a facially valid indictment is not subject to challenge based on grounds of inadequate or incompetent evidence. Id. at 345. A prosecutor may cast a wide net to find evidence to place before the grand jury. Id. . at 344.

         2. Analysis

         {¶ 38} First, appellant asserts that the prosecutor improperly elicited hearsay. Detective Sergeant John Perdue testified before the grand jury that "everybody in the neighborhood was saying that that was Mary's boyfriend that actually did the shooting." Perdue added, "So once we get on the scene, we talked to William and talked to Tonya and all of them, and they said it was Willie that actually came out and did the shooting." But it is well established that hearsay may be presented to a grand jury. Costello v. United States, 350 U.S. 359, 362-364, 76 S.Ct. 406, 100 L.Ed. 397 (1956).

         {¶ 39} Second, appellant complains that the prosecutor provided information about his prior criminal record. Detective Perdue testified before the grand jury that appellant was arrested in 1990 for "[m]urder, but they reduced it down to felonious assault." The prosecutor added, "Actually, he pled guilty to involuntary manslaughter and two counts of felonious assault, so back in 1990 he tried to kill at least a few people and killed one."

         {¶ 40} R.C. 2939.10 states, "The prosecuting attorney or assistant prosecuting attorney may at all times appear before the grand jury to give information relative to a matter cognizable by it, or advice upon a legal matter when required." The prosecutor's role as the grand jury's legal advisor may also "give him leeway to make comments that would not be permitted of a trial attorney, who acts strictly as an advocate and leaves the giving of legal advice to the trial judge. " 4 LaFave, Israel, King & Kerr, Criminal Procedure, Section 15.7(b), at 713-714 (4th Ed.2015).

         {¶ 41} The prosecutor, in her role as legal advisor, ensured that the grand jury had correct information about the defendant's criminal record. Nevertheless, appellant claims that the prosecutor's statement that "in 1990 he tried to kill at least a few people and killed one" was misleading. But appellant fails to support that claim.

         {¶ 42} Third, appellant argues that the prosecutor improperly became a witness during the grand-jury proceedings. A grand juror inquired about the health of the baby who was dropped during the shooting. Detective Perdue responded, "Yeah, the baby was fine." The prosecutor added that Ororo "was hit in the head" and that she "dropped the baby." The prosecutor's remarks added some details to Perdue's testimony, but they were harmless.

         {¶ 43} Fourth, appellant asserts that the prosecutor's discussion about a shell casing amounted to expert testimony. Detective Perdue testified before the grand jury that the casing was found on the porch and that witnesses had estimated that appellant was "a good ten, fifteen feet from the porch" when he started shooting. A grand juror asked whether the casing "flew that far"; Perdue answered that it had, and the prosecutor added, "They can fly that far." Perdue then testified that the police did not find other casings, stating that "it was just hard to say where they went." The prosecutor added, "That's the problem with casings. They fly, and a lot of times we can't find them and we know there's at least three shots fired." The prosecutor was repeating Perdue's testimony that casings can travel several feet. The prosecutor did not become an expert witness by simply clarifying Perdue's comments.

         {¶ 44} Finally, appellant argues that the prosecutor misled the grand jury and may have lied when discussing the identities of the car's driver and other passenger. Detective Perdue testified that there were "three guys in the Intrepid. There was a driver and a passenger, and Wilks was in the back." The questioning continued:

BY MS. DOHERTY [the prosecutor]:

Q: But we don't know who these other people are at this point?
A: No, we don't know who they are. We have an idea, but we're not really-
Q: Now that we have him, maybe we'll get something. Okay?
GRAND JUROR: Will they be chargeable?
MS. DOHERTY: Probably. Depending upon what their conduct was before and after. We just have to know who they are. Okay.

         {¶ 45} Appellant claims that this colloquy falsely indicated that the prosecution and the police did not "know who these other people are." According to appellant, because Mister had identified the driver and passenger from a photo array on the night of the shootings, the prosecutor and the police knew who they were.

         {¶ 46} Nothing shows that the prosecutor lied to or misled the grand jury. The prosecutor did not testify about the identities of the driver and other passenger. Moreover, the prosecutor did not attempt to mislead the grand jury by informing it that the driver and other passenger could "[p]robably" be charged once the police learned their identities and conduct.

         {¶ 47} We reject proposition of law No. IV.

         C. Excusal of Spanish-speaking prospective juror

         {¶ 48} In proposition of law No. VI, appellant argues that the trial court erred by excusing a Spanish-speaking prospective juror.

         {¶ 49} On his questionnaire, prospective juror No. 481 stated that he was Hispanic. He added, "I don't speak well Inglish [sic]." Other answers on his questionnaire contained misspellings and poor grammar. He stated that he watched Univision and other Spanish-language television programs. He did not indicate where he was born but stated that he had lived in Illinois, Oklahoma, and Ohio over the past ten years.

         {¶ 50} During voir dire, prospective juror No. 481 acknowledged that he did not speak English very well. He added, "I've been a waiter for so many years in different Mexican restaurants, but I just know about my work. And, you know, for things like this, it's kind of hard for me." He also stated that he did not understand all the words on the questionnaire when he completed it. Following this short exchange, defense counsel stated, "We're okay, Judge." The trial court then excused this prospective juror.

         {¶ 51} Under R.C. 2945.25(N), a person called for service as a juror in a criminal case may be challenged if "English is not his native language, and his knowledge of English is insufficient to permit him to understand the facts and law in the case." Accord Crim.R. 24(C)(13). The trial court has discretion to determine whether a prospective juror should be disqualified for cause, and we will not reverse unless the trial court has abused that discretion. Berk v. Matthews, 53 Ohio St.3d 161, 169, 559 N.E.2d 1301 (1990).

         {¶ 52} Here, defense counsel did not object to the trial court's excusal of prospective juror No. 481, so appellant has forfeited all but plain error. See State v. Bethel, 110 Ohio St.3d 416, 2006-Ohio-4853, 854 N.E.2d 150, ¶ 116. To prevail, appellant must show that an error occurred, that the error was plain, and that the error affected his substantial rights. State v. Barnes, 94 Ohio St.3d 21, 27, 759 N.E.2d 1240 (2002) (an error affects substantial rights only if it affected the outcome of the trial); see Crim.R. 52(B). We take "[n]otice of plain error * * * with the utmost caution, under exceptional circumstances and only to prevent a manifest miscarriage of justice." State v. Long, 53 Ohio St.2d 91, 372 N.E.2d 804 (1978), paragraph three of the syllabus.

         {¶ 53} When examined individually, prospective juror No. 481 acknowledged that he did not speak English very well. Although he was not specifically asked, his questionnaire indicated that his native language was Spanish. He obtained his news and entertainment from Spanish-language television programs or other Spanish-language sources on the Internet. He said that he did not understand all the words on the questionnaire and that "for things like this, it's kind of hard for me." Under these circumstances, the trial court committed no plain error by excusing this prospective juror.

          {¶ 54} Appellant cites State v. Speer, 124 Ohio St.3d 564, 2010-Ohio-649, 925 N.E.2d 584, in arguing that the trial court's excusal of prospective juror No. 481 violated the prospective juror's access to the courts and the opportunity to serve on juries.

         {¶ 55} Speer involved a hearing-impaired prospective juror. During voir dire, the prospective juror informed the court that she could hear people's voices but could not understand spoken words without reading the speaker's lips. Id. at ¶ 11. The trial court denied a defense motion to excuse the prospective juror for cause. The court stated that it would accommodate her impairment by permitting her to sit where she could see the faces of the witnesses and by telling her to advise the court if she missed anything.

         {¶ 56} As part of its case-in-chief, the state played a recording of a 9-1-1 call the defendant placed after the victim fell off a boat the defendant was navigating. The recording played an important role in each side's case: the prosecution argued that the defendant's tone and demeanor in the recording suggested that he had acted recklessly, while the defense cited the recording as evidence that the defendant was not under the influence of alcohol while operating the boat. Id. at ¶ 12-15. The defendant was convicted of aggravated vehicular homicide and involuntary manslaughter.

         {¶ 57} The court of appeals reversed Speer's convictions, and we affirmed. We held that the trial court abused its discretion in denying the defense challenge for cause because the court's accommodation of allowing the hearing-impaired juror to read the transcript of the 9-1-1 recording was insufficient to enable the juror to perceive whether in the 9-1-1 recording there was urgency in the defendant's voice, whether his speech was slurred, and whether he sounded deceptive or hesitant. Id. at ¶ 28-29. We also articulated the test for determining whether an impaired juror may serve on a jury. Id. at ¶ 30.

          {¶ 58} Citing Speer, appellant argues that the trial court should have more thoroughly questioned prospective juror No. 481 to determine whether an interpreter could have accommodated his lack of fluency. But unlike the hearing-impaired juror in Speer, there was a statutory basis for excusing prospective juror No. 481. The defense did not object to his excusal, and the trial court was not required to accommodate this prospective juror's language difficulty through an interpreter or some other means before excusing him.

         {¶ 59} Finally, appellant argues that prospective juror No. 481 was denied his right to equal protection by being excused. "[A] defendant in a criminal case can raise the third-party equal protection claims of jurors excluded by the prosecution because of their race." Powers v. Ohio, 499 U.S. 400, 415, 111 S.Ct. 1364, 113 L.Ed.2d 411 (1991). The trial court did not exclude prospective juror No. 481 because of his national origin or race. He was excluded because he lacked sufficient fluency in English. The record supports this basis for excusing the prospective juror. Accordingly, we reject appellant's equal-protection argument. Compare State v. Smith, 2d Dist. Montgomery No. 24402, 2013-Ohio-1586, ¶ 19, 28-29 (exclusion of an immigrant as a prospective juror, based on an erroneous finding that her knowledge of English was insufficient, violated the prospective juror's right to equal protection and constituted reversible error).

         {¶ 60} We reject proposition of law No. VI.

         D. Courtroom closures

         {¶ 61} In proposition of law No. V, appellant argues that courtroom closures during individual voir dire and the penalty-phase jury instructions violated his constitutional rights to a public trial.

         1. Individual voir dire

         {¶ 62} The trial court held individual voir dire inside the jury room over a several-day period. The parties discussed the procedure during a status hearing:

[THE COURT:] Lastly, when we began the case we did it with a one-on-one, extensive, detailed discussion and interview of each juror[]. We did that in the open jury room which is adjacent to the courtroom * * * -the door was opened where anyone who wishes admitted was permitted. That was done rather than in open court. At the direction and request of the defense of that long period of four weeks or so of the * * * individual voir dire regarding pretrial publicity as well as the death penalty aspect of the case, the defendant was not shackled, was in street clothes sitting at the table with prospective jurors and counsel was present, and it was done at the behest of the defense.
MR. YARWOOD [defense co-counsel]: I'll make the record very clear on this. First of all, our client was in civilian clothes during the entire proceedings. He was given, I think, tremendous latitude assisting us during it. In fact, * * * we were back in the jury room that was open for people to come in and it was available-and from our perspective that would meet the requirement of an open courtroom for purposes of people who wanted to come in and sit. There were chairs there for them to do it. It was available. Our position is that was of great benefit to be able to individually ask jurors in that form, and the Court and record should be very clear that we were satisfied with that. Mr. Wilks was very satisfied with that means and manner. I had even, in fact, told-when they were asking, where is other individuals? You're allowed to come in and sit down. It is open. So from our perspective we see it as a nonissue. * * *
MR. ZENA [lead defense counsel]: To reemphasize in some way what Ron [Yarwood] said, and this was discussed at length by us. Quite frankly, we asked that you proceed in that fashion in the hope that certain people wouldn't come and observe and thus expose this case to yet more publicity. We accomplished that fact by the manner in which it was conducted without barring anybody from the room. That's all on us, and we asked you to do it that way.

(Emphasis added.)

         {¶ 63} Shortly after this discussion, the trial court asked the defendant, "Mr. Wilks, anything from you?" He replied, "No, sir."

         {¶ 64} The Sixth Amendment to the United States Constitution and Article I, Section 10 of the Ohio Constitution guarantee an accused the right to a public trial. Waller v. Georgia, 467 U.S. 39, 46, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984); State v. Lane, 60 Ohio St.2d 112, 119, 397 N.E.2d 1338 (1979), and fn. 2. This right extends to the voir dire of prospective jurors. Presley v. Georgia, 558 U.S. 209, 213, 130 S.Ct. 721, 175 L.Ed.2d 675 (2010).

         {¶ 65} Appellant argues that holding individual voir dire in the jury room constituted a de facto closure of the courtroom. He claims that the trial court kept spectators away from the proceedings. But nothing in the record indicates that spectators were excluded from attendance. The jury room was adjacent to the courtroom, the door would be opened for anyone who wished to be admitted, and there were empty chairs available. In short, there is little evidence in the record to show that a closure actually occurred. See State v. Williams, 9th Dist. Summit No. 26014, 2012-Ohio-5873, ¶ 10.

         {¶ 66} But even if a closure had occurred, defense counsel asked the trial court to conduct individual voir dire in the jury room. The doctrine of invited error applies to appellant's claim. That doctrine specifies that a litigant may not "take advantage of an error which he himself invited or induced." Hal Artz Lincoln-Mercury, Inc. v. Ford Motor Co., Lincoln-Mercury Div., 28 Ohio St.3d 20, 502 N.E.2d 590 (1986), paragraph one of the syllabus. And the doctrine applies to the erroneous closure of courtroom proceedings. State v. Swell, 148 Ohio St.3d 554, 2016-Ohio-8025, 71 N.E.3d 1034, ¶ 50-52 (defendant not entitled to complain about the closure of the courtroom during individual voir dire because he had specifically requested that the court conduct individually sequestered voir dire in chambers); State v. Cassano, 96 Ohio St.3d 94, 2002-Ohio-3751, 772 N.E.2d 81, ¶ 61-64 (defendant not entitled to complain about the closure of the courtroom during a suppression hearing when he had requested the closure to avoid prejudicial pretrial publicity). Here, appellant requested that individual voir dire be conducted in the jury room to limit pretrial publicity, and he may not complain of any error that he induced.

         {¶ 67} Appellant also objects that he did not personally indicate consent to conducting individual voir dire in the jury room. He cites State v. Hensley, 75 Ohio St. 255, 266, 79 NE. 462 (1906), in arguing that the right to a public trial "cannot be waived by the defendant's silence." But counsel may consent to a courtroom closure that is "primarily for the benefit of the defendant." State v. Bayless, 48 Ohio St.2d 73, 110, 357 N.E.2d 1035 (1976), vacated on other grounds, sub nom. Bayless v. Ohio, 438 U.S. 911, 98 S.Ct. 3135, 57 L.Ed.2d 1155 (1978). Here, defense counsel not only requested this procedure, but he also indicated that appellant "was very satisfied with that means and manner" of conducting individual voir dire.

         {¶ 68} Accordingly, defense counsel could consent to conducting individual voir dire in the jury room without appellant's express consent. The jury room's location reduced defense exposure to pretrial publicity and benefited appellant. And as a tactical decision, it was well within defense counsel's purview. See Commonwealth v. Lavoie, 464 Mass. 83, 88-89, 981 N.E.2d 192 (2013) (counsel may waive, with or without the defendant's express consent, the right to a public trial during jury selection when the waiver is a tactical decision), citing Gonzalez v. United States, 553 U.S. 242, 248, 128 S.Ct. 1765, 170 L.Ed.2d 616 (2008); 6 LaFave, Israel, King & Kerr, Criminal Procedure, Section 24.1(a), at 352.

         2. Penalty-phase instructions

         {¶ 69} Following penalty-phase closing arguments, the trial court addressed the jury and the spectators, stating:

I'm going to give you your final closing instructions. It will take about a half hour. Those in the rear of the courtroom, you're certainly welcomed to stay; however, when I begin this instruction, it will take about a half hour and we're going to close the door and lock it, and it will remain closed for the duration. So if you don't want to stay for the duration, you should leave, so you're welcomed to do that now.

Defense counsel made no objection.

         {¶ 70} Appellant argues that locking the courtroom doors violated his right to a public trial. Here, his failure to object at trial forfeited this claim absent plain error. See State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, ¶ 103.

         {¶ 71} Appellant contends that the trial court should have made findings in accordance with Waller, 467 U.S. at 45, 104 S.Ct. 2210, 81 L.Ed.2d 31, before locking the doors. In Waller, in reviewing a courtroom closure for a suppression hearing, the Supreme Court of the United States set out a four-pronged test that courts must use to determine whether closure of the courtroom is necessary: "[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure." Id. at 48.

         {¶ 72} Under the specific facts of this case, the trial court did not err under Waller. In Waller, the trial court excluded the public from the courtroom for the duration of a seven-day suppression hearing. Id. at 42. Here, the trial court announced to the spectators that they were welcome to stay but would not be permitted to leave during the 30-minute jury charge, presumably to avoid distracting the jury during the instructions. See United States v. Scott,564 F.3d 34, 37-38 (1st Cir.2009) (distinguishing Waller and determining that closure did not occur when trial court locked the ...


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