State v. Lawson (Slip Opinion) , 2021 Ohio 3566 ( 2021 )

[Until this opinion appears in the Ohio Official Reports advance sheets, it may be cited as State
v. Lawson, Slip Opinion No. 2021-Ohio-3566.]
NOTICE
This slip opinion is subject to formal revision before it is published in an
advance sheet of the Ohio Official Reports. Readers are requested to
promptly notify the Reporter of Decisions, Supreme Court of Ohio, 65
South Front Street, Columbus, Ohio 43215, of any typographical or other
formal errors in the opinion, in order that corrections may be made before
the opinion is published.
SLIP OPINION NO. 2021-OHIO-3566THE STATE OF OHIO, APPELLEE, v. LAWSON, APPELLANT.
[Until this opinion appears in the Ohio Official Reports advance sheets, it
may be cited as State v. Lawson, Slip Opinion No. 2021-Ohio-3566.]
Criminal law—Aggravated murder—Findings of guilt and death sentence affirmed.
(No. 2019-0487—Submitted March 2, 2021—Decided October 7, 2021.)
APPEAL from the Court of Common Pleas of Lawrence County, No. 17-CR-333.
__________________
KENNEDY, J.
{¶ 1} This is a death-penalty appeal as of right.
{¶ 2} On October 11, 2017, appellant, Arron L. Lawson, murdered four
people: Stacey Holston, her eight-year-old son D.H., her mother, Tammie McGuire,
and her mother’s husband, Donald McGuire. On October 13, Lawson surrendered
to police and confessed to the murders.
{¶ 3} The Lawrence County grand jury returned an 11-count indictment,
including four counts of aggravated murder with multiple death specifications.
Lawson entered guilty pleas to all counts and specifications of the indictment.
Pursuant to R.C. 2945.06, a three-judge panel of the common pleas court heard the
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state’s evidence of guilt with regard to the capital charges. The panel found Lawson
guilty of four counts of aggravated murder with multiple death specifications as to
each count. The panel then conducted a sentencing hearing and sentenced Lawson
to death for each aggravated murder.
{¶ 4} In this appeal, Lawson raises five propositions of law. We overrule
each of the propositions of law. After conducting an independent review, we
conclude that although significant mitigating factors exist, the aggravating
circumstances outweigh the mitigating factors beyond a reasonable doubt as to each
of the four aggravated murders. We further conclude that each death sentence is
appropriate and proportionate. Therefore, we affirm all four death sentences.
I. FACTS AND PROCEDURAL HISTORY
A. Facts
{¶ 5} Arron Lawson was Stacey Holston’s first cousin. Stacey lived with
her husband, Todd Holston, and their sons, D.H. and two-year-old B.H., near Pedro,
Ohio. Lawson lived nearby and was in the habit of visiting the Holstons daily.
{¶ 6} Lawson was infatuated with Stacey; he told his mother that she was
“the love of his life.” In his confession, he stated that he and Stacey had been
having a sexual affair, which Stacey had broken off “[a]bout a week ago,” i.e.,
approximately October 6, 2017.
{¶ 7} Lawson visited Stacey on Tuesday, October 10, 2017, the day before
the murders, while Todd was at work. During this visit, Lawson surreptitiously
entered a bedroom at the back of the house, opened a window, and inserted a book
between the window and the sill to hold the window partly open. By his own later
admission, he did this with the intention of entering the house the next day to
commit murder.
{¶ 8} At about 7:15 p.m., when Todd came home, Lawson was still there
with Stacey and the children. At Stacey’s request, Todd drove Lawson home. Todd
testified at trial that Lawson “wasn’t too happy about” being sent home.
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{¶ 9} The next morning, Todd left for work at approximately 4:30 a.m.
About half an hour later, Lawson entered the Holstons’ residence through the rear
window. He had a 20-gauge shotgun, eight shells loaded with slugs, and a backpack
containing flashlights, toilet paper, knives, a tarp, and other items. Lawson hid in
the back bedroom until about 8:30 a.m.
{¶ 10} Meanwhile, D.H.’s school bus arrived and D.H. left the house to go
to school. Stacey sent with him a note directing the school to put D.H. on a different
bus that afternoon than he normally rode and to take him to his grandparents’ house.
{¶ 11} By 8:30, after D.H. had left, Stacey was in the home with B.H.
Stacey entered the back bedroom where Lawson was hiding, and Lawson shot her
three times in the chest and shoulder. She fell to the floor.
{¶ 12} Lawson dragged her body to D.H.’s bedroom where he lifted her
onto a futon bed and, using a condom, had sex with her corpse. Lawson discarded
the condom in the kitchen wastebasket. He then returned to the bedroom and
covered Stacey’s body with a blanket and the futon’s mattress.
{¶ 13} As these events were occurring, Todd was at a worksite in Maysville,
Kentucky, where he clocked in at 6:43 a.m. It was Stacey’s habit to send Todd a
text message early every morning to make sure he had arrived safely at work. When
she failed to do so on October 11, Todd began to worry. He repeatedly tried to call
and text her throughout the day, but she did not respond.
{¶ 14} At 9:23 a.m., Lawson used Stacey’s cell phone to call D.H.’s school.
Posing as Todd, Lawson told the school’s guidance secretary that D.H.’s
grandfather was unable to watch D.H. that day, so D.H. should be taken home on
his usual bus that afternoon. Lawson spoke calmly and gave the guidance secretary
no reason to doubt he was who he claimed to be. Because Lawson was using
Stacey’s phone, the phone number on the school’s caller ID matched the number
on file in the office. So the original arrangement was canceled and D.H. was
brought home after school. Meanwhile, Lawson waited at the Holstons’ residence.
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He fed B.H., changed his diaper, and later put him down for a nap in the main
bedroom.
{¶ 15} When D.H. arrived home, Lawson sat with him in the living room
and they talked about school. However, D.H. began asking Lawson where his
mother was and when his father was coming home. Lacking answers, Lawson told
D.H. that Lawson’s PlayStation 3 was in D.H.’s room behind the dresser. D.H.
went to his bedroom. As D.H. looked behind his dresser, Lawson shot him twice,
once in the arm and once in the torso. Lawson left the boy’s body where it fell and
covered it with clothes. After killing D.H., Lawson continued to wait in the
Holstons’ residence.
{¶ 16} Around 6:30 or 6:40 p.m., Todd tried again to contact Stacey on his
way home from his worksite. He then called Stacey’s mother, Tammie McGuire,
who lived about a quarter mile from the Holstons. Tammie agreed to check on
Stacey and drove to the house. A few minutes later, she called Todd back and told
him that she was at his house but that the door was locked. Todd authorized her to
break in, and she did. The phone connection remained open. A few minutes later,
Todd heard Tammie scream, “Oh, my God” followed by a loud noise. Then, as
Todd later testified, “all of a sudden it was just quiet.”
{¶ 17} By Lawson’s account, he was in the main bedroom when he heard
Tammie forcing her way into the house. He hid behind the bedroom door; when
Tammie opened that door, he stepped out and shot her. Lawson dragged Tammie’s
body to the laundry area and threw a blanket over her. He then used her keys to
move her truck behind the house.
{¶ 18} Meanwhile, Todd phoned Tammie’s husband, Donald McGuire, and
apprised him of the situation. Donald said he would go and check, and he walked
to the house.
{¶ 19} According to Lawson, Donald initially tried to enter through the
back door, but it was locked, so Donald went around to the locked front door and
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“rammed through.” When Donald came in, Lawson shot him and dragged the body
to D.H.’s bedroom.
{¶ 20} About 10 to 20 minutes later, Todd arrived home. When he came
through the front door, Lawson attacked him with a knife, stabbing him a number
of times in the head, neck, and torso. Todd wrested the knife from Lawson and
pinned him to the couch.
{¶ 21} Todd asked Lawson why he had attacked him. According to
Lawson, he then replied, “I don’t know, it was just a blind thing of anger.” But
Todd testified that Lawson had said, “There’s been people breaking in out here, and
I thought you was one of them.” According to Todd, Lawson then “shook like he
snapped out of something.”
{¶ 22} Todd also asked Lawson where Stacey and the children were.
Lawson said they were in the bedroom and were “okay.” Todd testified that he
then forcefully removed Lawson from the house. Lawson drove away in the truck
belonging to the McGuires.
{¶ 23} Todd checked on B.H., who was unharmed. (According to Lawson,
B.H. slept through at least the first three murders.) Todd then looked through the
house. After finding the bodies of Tammie, Stacey, and Donald, he took B.H. and
drove to the McGuires’ house, where he borrowed a cell phone from Tammie’s
brother and called 9-1-1.
{¶ 24} Lawson had planned to hide out in the woods, but he had left his
backpack and shotgun behind in the Holstons’ house, so he drove to a store. With
cash stolen from the Holstons, he bought new clothes to replace his bloodstained
ones.
{¶ 25} While driving the truck, Lawson was pursued by police; he
abandoned the truck and fled on foot. Eventually, he reached a wooded area, where
he spent the next two nights. Lawson later said that after one “cold, cold night” in
the woods, “I just didn’t have no more flight in me.” Nevertheless, he did not
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emerge from the woods until the morning of October 13, when he was apprehended.
Detectives took him to the county prosecutor’s office in Ironton, where he
confessed to the four murders.
{¶ 26} Dr. Robert Shott, the deputy Montgomery County coroner,
performed autopsies on all four victims. He testified that Stacey suffered two
shotgun wounds to the chest and one to the back, fatally injuring her heart and
lungs. D.H. was shot twice, receiving fatal wounds to the heart, lung, and aorta.
Tammie was shot once in the neck, fatally injuring her spinal cord, and once in the
shoulder. Donald was shot once in the shoulder and once, fatally, in the chest.
B. Procedural History
{¶ 27} On October 18, 2017, the grand jury indicted Lawson on four counts
of aggravated murder with death specifications. Count 1 charged the aggravated
murder of Stacey Holston with prior calculation and design, in violation of R.C.
2903.01(A). Count 1 carried three death specifications: course of conduct
involving the purposeful killing of two or more persons, in violation of R.C.
2929.04(A)(5); felony murder, in violation of R.C. 2929.04(A)(7), predicated on
aggravated burglary; and felony murder, in violation of R.C. 2929.04(A)(7),
predicated on rape.
{¶ 28} Count 2 charged Lawson with the aggravated murder of D.H., a child
under the age of 13, in violation of R.C. 2903.01(C). This count carried six death
specifications: course of conduct, in violation of R.C. 2929.04(A)(5); murder of a
victim younger than 13, in violation of R.C. 2929.04(A)(9); murder to escape
detection, apprehension, trial, or punishment for other offenses, in violation of R.C.
2929.04(A)(3); felony murder, in violation of R.C. 2929.04(A)(7), predicated on
aggravated burglary; felony murder, in violation of R.C. 2929.04(A)(7), predicated
on kidnapping; and murder to prevent testimony, in violation of R.C.
2929.04(A)(8).
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{¶ 29} Count 3 charged Lawson with the aggravated murder of Tammie
McGuire during the commission of aggravated burglary, in violation of R.C.
2903.01(B). Count 4 charged Lawson with the aggravated murder of Donald
McGuire during the commission of aggravated burglary, in violation of R.C.
2903.01(B). Counts 3 and 4 both carried four death specifications: a course of
conduct, in violation of R.C. 2929.04(A)(5); murder to escape detection,
apprehension, trial, or punishment for other offenses, in violation of R.C.
2929.04(A)(3); felony murder, in violation of R.C. 2929.04(A)(7), predicated on
aggravated burglary; and murder to prevent testimony, in violation of R.C.
2929.04(A)(8).
{¶ 30} The indictment also included the following noncapital counts: Count
5, attempted murder, in violation of R.C. 2923.02(A) and 2903.02(A); Count 6,
felonious assault, in violation of R.C. 2903.11(A)(2); Count 7, aggravated burglary,
in violation of R.C. 2911.11(A)(2); Count 8, rape, in violation of R.C.
2907.02(A)(2); Count 9, abuse of a corpse, in violation of R.C. 2927.01(B); Count
10, kidnapping, in violation of R.C. 2905.01(A)(3); Count 11, tampering with
evidence, in violation of R.C. 2921.12(A)(1); Count 12, theft of a motor vehicle, in
violation of R.C. 2913.02(A)(1) and (B)(5); and Count 13, failure to comply with
a police officer’s order, in violation of R.C. 2921.331(B) and (C)(5)(a)(ii). Counts
1 through 4 and Counts 7, 8, and 10 carried firearm specifications.
{¶ 31} On February 21, 2019, the state voluntarily dismissed the R.C.
2929.04(A)(8) specifications that were attached to Counts 2, 3, and 4. Lawson then
entered pleas of guilty to all remaining counts and specifications before the three-
judge panel. Over the next few days, the three-judge panel heard witness testimony
as required by R.C. 2945.06 and on February 25, 2019, unanimously found Lawson
guilty of all counts of the indictment except Count 8 (rape) and of all specifications
except the specification for felony murder predicated on rape that was attached to
Count 1 (aggravated murder of Stacey).
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{¶ 32} The panel then held a mitigation hearing pursuant to R.C.
2929.03(D)(1) beginning on February 26, 2019. After hearing the evidence that
Lawson offered in mitigation, the panel sentenced him to death on all four counts
of aggravated murder. He also received sentences totaling 59 years and six months
on the noncapital counts and specifications. Lawson appeals of right and we now
address his propositions of law.
II. TRIAL COURT’S FAILURE TO ORDER A COMPETENCY
HEARING
{¶ 33} Lawson initially pleaded not guilty to the indictment. More than a
year later, he changed his mind, waived a jury trial, and entered guilty pleas to each
count of the indictment and to all the death specifications (except the three that the
state voluntarily dismissed). In so doing, he acted against his trial counsel’s advice.
{¶ 34} Defense counsel never requested a hearing into Lawson’s
competence to stand trial. Nevertheless, in his first proposition of law, Lawson
contends that the trial court had a constitutional duty to inquire into his competence
to stand trial before accepting his change of plea.
A. Relevant Facts
{¶ 35} On February 11, 2019, several days into the jury-selection process,
defense counsel informed the trial court that Lawson did not want a trial. In
chambers, one of Lawson’s attorneys explained that Lawson did not want to put
himself, his family, and the families of the victims through a full trial “with all of
the gruesome photos that would be presented [and] all of the things that would be
* * * said about him.” Counsel said that he had explained to Lawson that if he
entered a guilty plea, the case would proceed before a three-judge panel, not a jury.
{¶ 36} Defense counsel then observed:
I suppose * * * if he wants to do that, there’s always a question of
whether or not there needs to be an examination of his competence
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to waive jury in a capital case. Obviously that’s not something that
we can [determine] today. And it may be something that would
require a psychological evaluation, although in a capital case, I
would ask for an independent one rather than what we would do in
a typical case.
{¶ 37} One of the prosecutors noted that the defense team included a
psychologist, Dr. Bob Stinson, and asked whether Dr. Stinson could render an
opinion on Lawson’s competence. Defense counsel replied that he could not
“commit Dr. Stinson to being able to do that,” because a competency assessment is
“completely different” from a mitigation assessment. Nevertheless, defense
counsel noted that Dr. Stinson “[o]bviously * * * would have more familiarity with
[Lawson] than anyone else” and stated that he “assume[d] that it could be done in
a manner”; he also stated that he had not “thought through whether that would
create some sort of a conflict in terms of what [Dr. Stinson’s] testimony would be
in the mitigation phase.”
{¶ 38} The trial judge then stated that he had “brought this up months ago
on the potential for a competency evaluation” but that he had declined to order one
because the defense had opposed it. (Any previous discussions of competency
issues must have occurred off the record, as the transcript does not reflect any
discussion of a competency evaluation before February 11.) The trial judge
continued, “I’m now second-guessing myself that I should have [ordered] it over
objection.” Defense counsel remarked that the court was “not incorrect” in
declining to order an evaluation over the defense’s opposition. The prosecutor
pointed out that the defense had not raised a question about Lawson’s competence
to stand trial.
{¶ 39} At the request of defense counsel, the court took a recess so that
Lawson could discuss the matter with his family. When the session resumed,
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defense counsel told the court at a bench conference that “after much thought,
consideration, [and] discussion with family members and counsel,” Lawson had
decided not to change his plea and would proceed with a jury trial. The court then
resumed the jury-selection process and the prospective jurors were brought into the
courtroom.
{¶ 40} The next day, however, Lawson’s counsel informed the trial court
that Lawson had decided to waive his right to a jury trial and to enter a guilty plea
to a three-judge panel. The trial court questioned Lawson at length about whether
he understood that he was waiving his constitutional right to have a jury hear and
decide the case. Lawson affirmatively stated a number of times that he understood
the consequences of his decision.
{¶ 41} During this exchange, the trial court asked Lawson whether he had
consulted with his family about his decision. Lawson answered that after
consulting with his family the previous day, he “had a second thought throughout
the night.” He informed the trial court that “it was a little rough because I saw my
mom crying and it always plays on my heart. And then after a while I have to make
a better decision for my life and not somebody else’s.”
{¶ 42} The trial court accepted Lawson’s waiver. Lawson’s counsel then
filed a written waiver of jury trial that Lawson had signed. Defense counsel
certified in writing that they had consulted with Lawson, had explained his right to
a jury trial, and believed that his waiver was voluntary, knowing, and intelligent.
The trial court’s acceptance of Lawson’s jury waiver was also filed; it included the
trial court’s finding that the waiver was made “knowingly, intelligently and
voluntarily.” On February 19, 2019, the chief justice of this court assigned two
additional judges to serve on the three-judge panel.
{¶ 43} On February 21, 2019, the panel held a change-of-plea hearing. At
the hearing, defense counsel stated that they had discussed the change of plea with
Lawson for about 90 minutes that day. Prior to proceeding to consider the change
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of plea, the presiding judge asked counsel whether at any point they ever had any
concerns about Lawson’s having any “mental defect or mental deficiency * * * that
would have prevented him from knowingly and intelligently and voluntarily
entering into th[e] plea waiver” One of Lawson’s attorneys replied that based on
his many years of experience with representing incompetent clients, his interactions
with Lawson gave him “no reason to think that Mr. Lawson would fall into any of
those categories.”
{¶ 44} The presiding judge then asked whether defense counsel had
“conducted appropriate investigation * * * into * * * mental issues or competency
issues.” One of Lawson’s attorneys replied that with Dr. Stinson’s assistance, they
had conducted such an investigation. After lengthy discussions with Dr. Stinson,
the attorney said, the defense had elected not to raise the issue of “possible
incompetency to proceed in this matter.”
B. The Trial Court’s Duty to Inquire Into Competence
1. Historical perspective on the prohibition against the trial of incompetent
defendants
{¶ 45} The fundamental principle that a criminal defendant who has been
adjudicated to be legally incompetent shall not be required to stand trial has deep
roots in common law. See Freeman v. People, 4 Denio 9, 1847 WL 4116, *19
(N.Y.1847) (recognizing that new competency legislation “was not introductory”
as it was “in strict conformity with the common law on the subject”). The
prohibition against the trial of incompetent defendants “dates back at least to the
time of [Sir William] Blackstone.” Godinez v. Moran, 509 U.S. 389, 400, 113 S.Ct.
2680, 125 L.Ed.2d 321 (1993), fn. 11. In the eighteenth century, Blackstone wrote
that if a man commits an offense and becomes “mad” after the commission of the
offense, then he should not be arraigned for it “because he is not able to plead to it
with that advice and caution that he ought.” 4 William Blackstone, Commentaries
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on the Laws of England, 24. Similarly, if he becomes “mad” after pleading, he
should not be tried, “for how can he make his defense?” Id.{¶ 46} The Supreme Court has long held that convicting a defendant while
he is legally incompetent violates the United States Constitution. “[T]he conviction
of an accused person while he is legally incompetent violates due process, and * * *
state procedures must be adequate to protect this right.” Pate v. Robinson, 383 U.S.
375, 378, 86 S.Ct. 836, 15 L.Ed.2d 815 (1966), citing Bishop v. United States, 350
U.S. 961, 76 S.Ct. 440, 100 L.Ed. 835 (1956).
{¶ 47} R.C. 2945.37, which was first enacted in 1978, see Am.Sub.H.B. No.
565, 137 Ohio Laws, Part II, 2937, 2943-2946, sets forth the process that a
defendant is due when an issue is raised pertaining to his competency. R.C.
2945.37(B) states:
In a criminal action * * *, the court, prosecutor, or defense
may raise the issue of the defendant’s competence to stand trial. If
the issue is raised before the trial has commenced, the court shall
hold a hearing on the issue * * *. If the issue is raised after the trial
has commenced, the court shall hold a hearing on the issue only for
good cause shown or on the court’s own motion.
2. What Triggers a Trial Court’s Duty to Inquire?
{¶ 48} A defendant is rebuttably presumed to be competent to stand trial.
State v. Barton, 108 Ohio St.3d 402, 2006-Ohio-1324, 844 N.E.2d 307, ¶ 56, citing
R.C. 2945.37(G). “[A] competency determination is necessary only when a court
has reason to doubt the defendant’s competence.” Godinez, 509 U.S. at 401, 113
S.Ct. 2680, 125 L.Ed.2d 321, fn. 13.
{¶ 49} Over 60 years ago, the now well-known test for determining legal
competency to stand trial was announced in Dusky v. United States, 362 U.S. 402,
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80 S.Ct. 788, 4 L.Ed.2d 824 (1960). Agreeing with the solicitor general’s
argument, the Supreme Court explained that a trial court must inquire into whether
the defendant “has sufficient present ability to consult with his lawyer with a
reasonable degree of rational understanding—and whether he has a rational as well
as factual understanding of the proceedings against him.” Id. at 402. This standard
also applies when a court is determining a defendant’s competency to plead guilty
or waive his right to counsel. Godinez at 396, 398-399.
{¶ 50} We first recognized the Dusky competency test in State v. Chapin,
67 Ohio St.2d 437, 439-440, 424 N.E.2d 317 (1981), and have continued to apply
it in the ensuing decades, see State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-
5487, 71 N.E.3d 180, ¶ 56 (stating that the Dusky test applies when assessing a
defendant’s competency to enter a guilty plea).
{¶ 51} Due process requires a court to hold a hearing when it has been
presented with a “sufficient indicia of incompetence.” Drope v. Missouri, 420 U.S.
162, 175, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975). When the issue of competency is
raised after a defendant’s trial has commenced, R.C. 2945.37(B) directs that “the
court shall hold a hearing on the issue only for good cause shown or on the court’s
own motion.” We have construed the connotation of the phrase “good cause” to be
“in accordance with the general principles set forth [by the Supreme Court] in
Drope and Pate[,383 U.S. at 378, 86 S.Ct. 836, 15 L.Ed.2d 815].” State v. Berry,
72 Ohio St.3d 354, 360, 650 N.E.2d 433 (1995), citing Chapin. Therefore, “[t]he
right to a hearing on the issue of competency rises to the level of a constitutional
guarantee where the record contains ‘sufficient indicia of incompetence’ such that
an inquiry into the defendant’s competency is necessary to ensure the defendant’s
right to a fair trial.” Berry at 359, quoting Drope at 175.
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3. Analysis
a. Were there sufficient indicia of incompetence to require a hearing?
{¶ 52} Lawson acknowledges that his counsel never asked for a
competency evaluation, but he contends that the trial court denied him due process
by not ordering one sua sponte. He contends that the record in this case establishes
sufficient “indicia of incompetence” to require a hearing.
{¶ 53} Three facts, Lawson contends, called his competence into question.
First, his decision to waive a jury trial and plead guilty to the indictment was made
against the advice of his counsel. Second, he displayed “indecision,” in that he
changed his mind about pleading guilty. Third, at the time of his plea, he “was
being treated with psychiatric medications,” a fact he disclosed to the trial court
during the plea colloquy.
{¶ 54} Lawson’s acting against the advice of counsel does not indicate
incompetence. We have noted that a defendant’s “refusal to heed his counsel’s
advice * * * [does] not indicate that he was unable to understand the nature of the
charges and proceedings or the gravity of the situation or that he could not assist in
his defense.” State v. Johnson, 112 Ohio St.3d 210, 858 N.E.2d 1144, 2006-Ohio-
6404, ¶ 161. Indeed, such a refusal generally “evidences [the defendant’s] ability
to participate in his defense.” State v. Fletcher 8th Dist. Cuyahoga No. 49814, 1985
WL 4215, *2 (Dec. 5, 1985).
{¶ 55} Nor does Lawson’s alleged indecision suggest that he was
incompetent. The record shows that after first expressing his desire to plead guilty
on February 11, 2019, Lawson discussed the matter with his counsel and family
and then decided not to change his plea. The next day, however, he filed his written
jury waiver. The record does not show that he changed his mind again. On
February 21, he still wished to plead guilty, and he did so without further hesitation.
{¶ 56} It is not surprising that a defendant contemplating entering a guilty
plea in a capital case would display some hesitation. “Indecisiveness is not the
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same as incompetency[,] however.” Johnson v. State, 138 Md.App. 539, 567, 772
A.2d 1260 (2001). And Lawson’s indecision does not amount to irrationality. See
United States v. Miller, 531 F.3d 340, 348 (6th Cir.2008) (in determining
competency, a court is to consider evidence of a defendant’s irrational behavior).
Lawson explained that he changed his mind due to the emotional toll he felt when,
during a visit, his mom cried to him about his actions. However, once he distanced
himself from those emotions and further reflected, he knew that the best decision
for him was to change his not-guilty plea to a plea of guilty.
{¶ 57} In any event, Lawson’s change of mind was brief. Having decided
to plead guilty on February 12, he held to his decision in the face of his counsel’s
contrary advice and after a rigorous plea colloquy. And he continued to hold to his
decision over the ensuing nine days and during the change-of-plea hearing before
the three-judge panel. This sequence of events has no tendency to show that
Lawson lacked the ability to consult with his lawyer with a reasonable degree of
rational understanding, nor does it suggest that he was unable to understand the
proceedings.
{¶ 58} Finally, Lawson cites his statement during the plea colloquy that he
was taking prescription medication. The presiding judge asked Lawson whether he
was “presently under the influence of any drug, alcohol, or mind-altering
substance.” Lawson replied: “I’m under prescription medication, but that is all.”
He stated that he was taking naproxen, Vistaril, metronidazole, and Zoloft.
{¶ 59} However, “it is a matter of statutory and decisional law that ‘[t]he
fact that a defendant is taking antidepressant medication or prescribed psychotropic
drugs does not negate his competence to stand trial.’ ” Montgomery, 148 Ohio
St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, at ¶ 56, quoting State v. Ketterer, 111
Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 71; see also State v. Mink, 101
Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064, ¶ 38; R.C. 2945.37(F) (“The
court shall not find a defendant incompetent to stand trial solely * * * because the
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defendant is receiving or has received psychotropic drugs or other medication, even
if the defendant might become incompetent to stand trial without the drugs or
medication”).
{¶ 60} In both Mink and Ketterer, as Lawson points out, “competency
evaluations were conducted * * * before each defendant entered his guilty plea to
capital charges.” Montgomery at ¶ 54, citing Mink at ¶ 31-32 and Ketterer at ¶ 67.
Nevertheless, Mink and Ketterer do not stand for the proposition “that a court must
order a competency hearing before accepting a guilty plea from a capital defendant
who is taking a prescription medication for mental illness.” (Emphasis sic.)
Montgomery at ¶ 54. And in Montgomery, we expressly declined to so hold. Id.{¶ 61} Lawson stated during the colloquy that his medications did not
prevent him from understanding what his attorneys or the court said to him, nor did
they affect his ability to fully and adequately assist his attorneys. The trial court
also asked Lawson if there was any medication that he had been prescribed but was
not taking; he said no. Moreover, during the plea colloquy, Lawson “appropriately
answered the court’s questions,” Montgomery at ¶ 57, and displayed no
“outrageous, irrational or confused” behavior, id. at ¶ 59.
{¶ 62} The presiding judge asked Lawson’s counsel whether they had seen
any indication that Lawson’s medications “could be affecting his ability to reason
or [his] judgment.” Both attorneys replied in the negative. “Solemn declarations
in open court carry a strong presumption of verity.” Blackledge v. Allison, 431 U.S.
63, 74, 97 S.Ct. 1621, 52 L.Ed.2d 136 (1977). Lawson’s counsel knew that Lawson
was taking medication, “yet they had no concerns about his competence.”
Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, at ¶ 51. The
record contains no countervailing evidence—nothing to suggest that the
medications Lawson was taking could have hampered his ability to understand the
proceedings or assist his counsel.
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{¶ 63} Finally, after Lawson informed the court that he was taking
prescription medication, the trial court conducted a full plea colloquy under
Crim.R. 11. The panel asked Lawson whether he understood the constitutional
rights he was waiving by pleading guilty, the consequences of his pleading guilty,
and the maximum sentence he could potentially receive if found guilty of the capital
specifications. The panel had previously verified that he understood the written
plea of guilty and had executed it with the assistance of his counsel. The panel
asked Lawson whether he understood each of the charges against him. Lawson
“answered each of the panel’s questions in the affirmative and in a coherent
fashion.” Montgomery at ¶ 50.
{¶ 64} Trial counsel’s statements to the trial court are also important in
considering whether the trial court violated Lawson’s due-process rights by failing
to initiate a competency hearing. “Trial counsel’s assurances to the court are
relevant because ‘a defendant’s counsel is in the best position to evaluate a client’s
comprehension of the proceedings.’ ” Stanley v. Cullen, 633 F.3d 852, 861 (9th
Cir.2011), quoting Hernandez v. Ylst, 930 F.2d 714, 718 (9th Cir.1991). The
Supreme Court has recognized that “judges must depend to some extent on counsel
to bring issues into focus.” Drope, 420 U.S. at 176-77, 95 S.Ct. 896, 43 L.Ed.2d
103. Lawson’s defense counsel never asserted their belief that Lawson was
incompetent. In fact, lead defense counsel stated just the opposite. Counsel
indicated that the trial court was correct in declining to order a competency
evaluation. He told the court that he had spent “many hours” with Lawson over a
17-month period and had discussed Lawson’s competence with Dr. Stinson, and
lead defense counsel expressly stated that he had “no reason to think” that Lawson
was incompetent to enter a guilty plea. “[W]hen a trial court must decide whether
to hold a hearing on the defendant’s competence to stand trial, reviewing courts
‘give weight * * * to the trial judge’s opportunity to observe the defendant.’ ” State
v. Cowans, 87 Ohio St.3d 68, 84, 717 N.E.2d 298 (1999), quoting Commonwealth
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v. Hall, 15 Mass.App. 1, 3, 443 N.E.2d 121 (1982). In this case, the presiding judge
had observed Lawson’s in-court demeanor for months and was able to observe his
demeanor during the plea colloquy. Indeed, “it is noteworthy that nobody on the
spot thought [Lawson’s] behavior raised any question as to his competence.”
(Emphasis sic.) Cowans at 84; accord State v. Williams, 99 Ohio St.3d 439, 2003-
Ohio-4164, 793 N.E.2d 446, ¶ 63; Montgomery at ¶ 59.
{¶ 65} Under all the circumstances here, the facts that Lawson cites as
indicia of incompetence were insufficient to overcome the general presumption of
competence and were insufficient to entitle him to a competency evaluation.
b. Did the trial court raise the issue of competency?
{¶ 66} Lawson contends that “the [trial] court itself effectively raised the
issue” of his competence—presumably on February 11, 2019, when the court
wondered out loud whether it should have ordered a competency hearing earlier in
the case over the defense’s objections. Lawson relies on State v. Bock, 28 Ohio
St.3d 108, 110, 502 N.E.2d 1016 (1986), in which this court stated: “[T]here is no
question that where the issue of the defendant’s competency to stand trial is raised
prior to the trial, a competency hearing is mandatory.” See also R.C. 2945.37(B).
Lawson’s argument is not clear, but he seems to imply that a competency hearing
was required under Bock because the trial court itself had “raised” the issue of
competence.
{¶ 67} We disagree. While a trial court may raise the issue of a defendant’s
competency, see R.C. 2945.37(B), the trial court in this case was not exercising this
authority. In essence, the trial court was asking the defense whether it wanted a
competency hearing. Asking the defense whether it wants a hearing does not by
itself make a hearing mandatory. The fact that the trial court did not order a
competency evaluation and hearing, when it had the authority to sua sponte do so,
shows that the court did not intend to raise the issue of Lawson’s competence.
Moreover, even if a competency hearing were mandatory under Bock, the failure to
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hold one would be harmless error in this case: “[I]t is clear that the failure to hold
a mandatory competency hearing is harmless error where the record fails to reveal
sufficient indicia of incompetency.” Bock at 110.
4. No support for the dissent’s per se rule
{¶ 68} As set forth above, the Supreme Court has established, and Ohio has
adopted, specific procedures to adequately protect an incompetent defendant from
being tried or convicted. The dissent, however, advocates for the adoption of a per
se rule—that a competency examination and hearing are required at the instant in
which a capital defendant pursues an adverse-interest request, such as entering a
plea of guilty.
{¶ 69} There is no compelling reason to adopt that per se rule. As the Fifth
Circuit has held:
[W]e decline to adopt a per se rule that, as a matter of law, a trial
court must doubt a capital punishment defendant’s competency, or
conclude that such defendant does not understand the proceedings
against him or appreciate their significance, or conclude that he
cannot rationally aid his attorney in his defense simply because it is
obvious to the court that the defendant is causing his trial to be
conducted in a manner most likely to result in a conviction and the
imposition of the death penalty.
Roberts v. Dretke, 381 F.3d 491, 498 (5th Cir.2004).
{¶ 70} A per se rule is also incongruous with the Supreme Court’s position
that there is no one sign that triggers the need for a competency evaluation.
[E]vidence of a defendant’s irrational behavior, his demeanor at
trial, and any prior medical opinion on competence to stand trial are
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all relevant in determining whether further inquiry is required, but
that even one of these factors standing alone may, in some
circumstances, be sufficient. There are, of course, no fixed or
immutable signs which invariably indicate the need for further
inquiry to determine fitness to proceed; the question is often a
difficult one in which a wide range of manifestations and subtle
nuances are implicated. That they are difficult to evaluate is
suggested by the varying opinions trained psychiatrists can entertain
on the same facts.
(Emphasis added.) Drope, 420 U.S. at 180, 95 S.Ct. 896, 43 L.Ed.2d 103.
{¶ 71} For the foregoing reasons, we overrule Lawson’s first proposition of
law.
III. VALIDITY OF LAWSON’S JURY WAIVER AND GUILTY PLEAS
{¶ 72} In his second proposition of law, Lawson contends that both his jury
waiver and his subsequent guilty pleas were invalid because they were not knowing,
voluntary, and intelligent. This proposition essentially restates the claims made in
his first proposition of law; the same three circumstances that the first proposition
calls “indicia of incompetence” are here relied upon as reasons to question the
knowing, voluntary, and intelligent character of his jury waiver and guilty pleas.
Lawson also argues that before accepting his waiver and pleas, the trial court should
have advised him that a single juror could prevent a death sentence. For the reasons
that follow, we reject both claims.
A. The Jury Waiver
{¶ 73} “In addition to determining that a defendant who seeks to plead
guilty * * * is competent, a trial court must satisfy itself that the waiver of his
constitutional rights is knowing and voluntary.” Godinez, 509 U.S. at 400, 113
S.Ct. 2680, 125 L.Ed.2d 321. The United States Supreme Court has explained the
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distinction between a competency determination and an inquiry into the knowing
and voluntary character of a rights waiver as follows:
The focus of a competency inquiry is the defendant’s mental
capacity; the question is whether he has the ability to understand the
proceedings. * * * The purpose of the “knowing and voluntary”
inquiry, by contrast, is to determine whether the defendant actually
does understand the significance and consequences of a particular
decision and whether the decision is uncoerced.
(Emphasis sic.) Id. at 401, fn. 12, quoting Parke v. Raley, 506 U.S. 20, 28, 113
S.Ct. 517, 121 L.Ed.2d 391 (1992).
{¶ 74} A jury waiver must be voluntary, knowing, and intelligent. E.g.,
State v. Ruppert, 54 Ohio St.2d 263, 271, 375 N.E.2d 1250 (1978). Waiver may
not be presumed from a silent record; however, if the record shows that a jury
waiver occurred, the verdict will not be set aside except on a plain showing that the
waiver was not freely and intelligently made. Adams v. United States ex rel.
McCann, 317 U.S. 269, 281, 63 S.Ct. 236, 87 L.Ed. 268 (1942). Moreover, a
written waiver is presumptively voluntary, knowing, and intelligent. United States
v. Sammons, 918 F.2d 592, 597 (6th Cir.1990). See generally State v. Bays, 87
Ohio St.3d 15, 19, 716 N.E.2d 1126 (1999).
{¶ 75} In this case, Lawson executed and filed a written jury waiver.
Attached to the waiver was the following certification by defense counsel:
We, the undersigned, as counsel for defendant Arron
Lawson, have consulted with our client, explained his Constitutional
rights to a trial by jury, and made inquiry to determine if his decision
* * * was based upon any promises or coercive tactics * * * and
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explained to him the process of trial by three-judge panel. We find
no evidence of any promises or coercive tactics * * *. We recognize
that his waiver of jury trial is voluntary. And we believe his waiver
is knowingly and intelligently made.
{¶ 76} By itself, the fact that a defendant is taking prescription medications
“does not defeat the presumption that his written waiver was knowing, intelligent,
and voluntary.” Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d
180, at ¶ 30. Lawson points to nothing to show “that he, in fact, failed to understand
the waiver proceedings or the effect of his decision to waive—or that his decision
was somehow involuntary—because of the prescription medications.” Id.B. The Guilty Pleas
{¶ 77} “Prior to accepting a guilty plea from a criminal defendant, the trial
court must inform the defendant that he is waiving his privilege against compulsory
self-incrimination, his right to jury trial, his right to confront his accusers, and his
right of compulsory process of witnesses.” State v. Ballard, 66 Ohio St.2d 473,
423 N.E.2d 115 (1981), paragraph one of the syllabus, following Boykin v.
Alabama, 395 U.S. 238, 242-243, 89 S.Ct. 1709, 23 L.Ed.2d 274 (1969); see also
Crim.R. 11(C)(2)(c).
{¶ 78} In this case, the trial court complied with Ballard and Crim.R.
11(C)(2)(c) by informing Lawson that his guilty plea waived his rights to confront
the state’s witnesses, to compel the attendance of witnesses, and to require the state
to prove guilt beyond a reasonable doubt at a trial in which he would have had the
right not to testify against himself.
{¶ 79} Lawson initiated the decision to plead guilty, “insisted upon it
against advice of counsel, and held to it through a lengthy plea colloquy,” State v.
Fitzpatrick, 102 Ohio St.3d 321, 2004-Ohio-3167, 810 N.E.2d 927, ¶ 40. In
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Fitzpatrick, this court concluded on similar facts that it was “clear” that a capital
defendant’s decision to plead guilty was voluntary. Id.{¶ 80} Nevertheless, Lawson contends that his plea was not voluntary,
knowing, and intelligent, because (1) the trial court did not inquire into why he was
not following counsel’s advice, (2) the trial court did not inquire more deeply into
the nature and effects of the medications Lawson was taking, and (3) the trial court
accepted the waiver and pleas without a hearing on Lawson’s competence.
{¶ 81} Lawson argues that when a defendant chooses, contrary to his
counsel’s advice, to waive a jury trial or plead guilty, the trial court has a duty to
inquire into the reasons for the defendant’s decision. But he cites no authority for
that position.
{¶ 82} The decisions whether to waive a jury trial and whether to plead
guilty belong to the defendant, not counsel. See Jones v. Barnes, 463 U.S. 745,
751, 103 S.Ct. 3308, 77 L.Ed.2d 987 (1983). A defendant’s election to exercise his
right to reject his counsel’s advice does not imply that his decision could not have
been knowing, voluntary, and intelligent. To draw such an inference would negate
the defendant’s right to decide these matters for himself.
{¶ 83} Lawson also asserts that his decision to reject counsel’s advice was
“essentially” equivalent to waiving the right to counsel altogether. We reject this
assertion; there is an obvious difference between Lawson’s situation—having the
assistance of counsel, but rejecting counsel’s advice—and having no counsel at all.
{¶ 84} Lawson also argues that the trial court failed to conduct a sufficient
inquiry into the prescription drugs he was taking. He contends that the trial court
should have asked what the medications were for, who prescribed them, how long
Lawson had been taking them, when he had taken them last, and what effects they
may have had on his mental state.
{¶ 85} Lawson cites Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805
N.E.2d 1064, at ¶ 66, in which this court stated: “Additional inquiry is necessary
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into a defendant’s mental state once a defendant seeking to enter a guilty plea has
stated that he is under the influence of drugs or medication.”
{¶ 86} However, in Montgomery, we rejected a similar claim on similar
facts. The defendant in Montgomery argued that the three-judge panel inadequately
inquired “into the effect, if any, that his prescription medications had on his mental
state.” Id., 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, at ¶ 44.
{¶ 87} When the presiding judge in Montgomery learned at the jury-waiver
hearing that the defendant was taking prescription medications for mental illness,
the judge asked “whether he had been prescribed the medications and whether he
was taking them pursuant to the prescription.” Id. at ¶ 49. The judge also “directly
asked him whether he understood the constitutional rights he was forgoing by
waiving his right to a jury, whether he was doing so voluntarily, and whether his
counsel had reviewed the jury waiver with him prior to the hearing.” Id. The panel
later conducted a plea colloquy that complied with Crim.R. 11, and “Montgomery
answered each of the panel’s questions in the affirmative and in a coherent fashion.”
Id. at ¶ 50.
{¶ 88} Moreover, “[t]he panel had no reason to believe that Montgomery
had any issues with competence or could not intelligently and voluntarily enter a
guilty plea.” Id. at ¶ 47. Neither the defendant nor counsel in Montgomery “ever
made any representation to the court that he had any * * * issues with competency.”
Id. The panel specifically asked at the plea hearing
whether [defense counsel] had any reason to believe that
[Montgomery] was not competent or capable of voluntarily and
intelligently pleading guilty. Defense counsel * * * were aware that
Montgomery was medicated for depression, yet they * * * never
raised an issue to the court about Montgomery’s ability to
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understand the proceedings and enter a knowing and voluntary
guilty plea.
Id. at ¶ 51.
{¶ 89} In the end, “there [was] no evidence * * * that Montgomery was not
in full possession of his faculties at the plea hearing or at any other point during the
pendency of his case.” Id., 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180,
at ¶ 52. Accordingly, we determined that “the panel’s inquiry into Montgomery’s
mental state and use of prescription medications and in its acceptance of
Montgomery’s guilty plea was adequate and that Montgomery voluntarily and
knowingly pleaded guilty to capital murder.” Id.{¶ 90} The facts of this case closely parallel those of Montgomery. During
the plea colloquy, the trial court asked Lawson whether his medications prevented
him from understanding what his attorneys or the court told him and whether they
affected his ability to fully and adequately assist his attorneys. The trial court also
asked Lawson’s counsel whether they had seen any indication that Lawson’s
medications were affecting his reasoning ability or judgment. Neither Lawson nor
his counsel indicated at any point “that he had any * * * issues with competency,”
Montgomery at ¶ 47. Moreover, as in Montgomery, the panel in this case conducted
a plea colloquy that complied with Crim.R. 11, and Lawson “answered each of the
panel’s questions in the affirmative and in a coherent fashion,” id. at ¶ 50.
{¶ 91} “In short, there is no evidence in the record to indicate that [Lawson]
was not in full possession of his faculties at the plea hearing or at any other point
during the pendency of his case.” Id. at ¶ 52. “[C]onsidering the totality of the
evidence,” id., the panel’s inquiry into Lawson’s mental state and use of
prescription medications was sufficient to comply with Mink, 101 Ohio St.3d 350,
2004-Ohio-1580, 805 N.E.2d 1064.
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C. Failure to Advise that Single Juror Can Block Death Sentence
{¶ 92} Lawson contends that his jury waiver and guilty pleas were not
voluntary, knowing, and intelligent because the trial court did not tell him that a
single juror can block a death sentence. However, we have rejected that contention.
Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71 N.E.3d 180, at ¶ 30, citing
Bays, 87 Ohio St.3d at 19-21, 716 N.E.2d 1126; see also Fitzpatrick, 102 Ohio
St.3d 321, 2004-Ohio-3167, 810 NE.2d 927, at ¶ 42-48; Sowell v. Bradshaw, 372
F.3d 821, 833 (6th Cir.2004). We reject it again today.
III. INEFFECTIVE ASSISTANCE OF COUNSEL
{¶ 93} In his third proposition of law, Lawson contends that his trial counsel
rendered ineffective assistance. To establish ineffective assistance, Lawson must
show (1) deficient performance, i.e., performance falling below an objective
standard of reasonable representation, and (2) prejudice, i.e., a reasonable
probability that, but for counsel’s errors, the proceeding’s result would have been
different. Strickland v. Washington, 466 U.S. 668, 687-688, 694, 104 S.Ct. 2052,
80 L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989),
paragraphs two and three of the syllabus.
A. Failure to Request a Competency Evaluation
{¶ 94} Lawson argues that his counsel should have requested a competency
evaluation, which would have led to a competency hearing.
{¶ 95} R.C. 2945.37(B) entitles the defense to a pretrial competency
hearing upon request: “In a criminal action in a court of common pleas, * * * the
court, prosecutor, or defense may raise the issue of the defendant’s competence to
stand trial. If the issue is raised before the trial has commenced, the court shall
hold a hearing on the issue as provided in this section.” (Emphasis added.) Defense
counsel is not ineffective in failing to request that the trial court order a competency
evaluation or hold a competency hearing when the defendant does not display
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sufficient indicia of incompetency to warrant a competency hearing. State v.
Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 41.
{¶ 96} Lawson contends that counsel’s decision not to request a
competency evaluation cannot be justified as a strategic decision, because
requesting an evaluation would have had no possible “downside.”
{¶ 97} Lawson’s assertion that there is no downside to requesting a
competency evaluation in this type of situation is questionable: defense counsel
may risk straining their relationship with their client when they question his mental
competence and seek to negate his decisions. But in any event, competent counsel
would not request an evaluation unless they had some reason to doubt the
defendant’s competence. Here, nothing in the record shows that Lawson’s counsel
had any such reason.
{¶ 98} Lawson contends that his counsel did not adequately investigate the
competency issue before declining to request a competency evaluation. He argues
that an expert opinion on Lawson’s competence was essential, because counsel’s
“armchair opinions” were not a sufficient basis on which to make such a decision.
He further argues that the record fails to show that defense counsel ever sought an
expert opinion.
{¶ 99} Lawson points to defense counsel’s dialogue with the trial court on
February 11, 2019, the day Lawson first announced that he wanted to waive a jury
and plead guilty. One of the prosecutors asked whether Dr. Stinson could render
an opinion on competence based on conversations Dr. Stinson and Lawson had
already had. One of Lawson’s attorneys replied:
I can’t commit Dr. Stinson to being able to do that. I know
psychologists that I have worked with in the past would probably
say, “Well, that’s a completely different review and assessment,”
and they’re looking for different things than the context of
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presenting possible psychological information for purposes of
mitigation.
Obviously [Dr. Stinson] would have more familiarity with
this young man than anyone else, and so I assume that it could be
done in a manner, although I * * * haven’t thought through whether
that would create some sort of a conflict in terms of what his
testimony would be in the mitigation phase.
{¶ 100} Lawson reads this statement as indicating “the limited scope of Dr.
Stinson’s services[,] which did not include a competency examination.” But
defense counsel did not say that Dr. Stinson could not render such an assessment.
He said only that he could not guarantee that Dr. Stinson would be able to form an
opinion of Lawson’s competence based on the interviewing Dr. Stinson had done
up to that point. Indeed, counsel went on to say that Dr. Stinson “would have more
familiarity with [Lawson] than anyone else, and so I assume that it could be done
in a manner.” (Emphasis added.)
{¶ 101} Lawson goes on to assert that “there is nothing in the record that
indicates that Dr. Stinson or any other mental health professional did, or was even
asked to do, a competency evaluation on” Lawson. Lawson’s argument misplaces
the burden of persuasion: a defendant who claims ineffective assistance of trial
counsel on direct appeal must show from the record that the elements of the claim
exist. Therefore, Lawson must show that his counsel failed to perform an adequate
investigation of his possible incompetence. See, e.g., State v. Were, 118 Ohio St.3d
448, 2008-Ohio-2762, 890 N.E.2d 263, ¶ 244.
{¶ 102} Lawson also ignores what defense counsel said during the plea
hearing on February 21. During that hearing, one of Lawson’s attorneys expressly
stated that counsel had conducted an investigation into competency issues and that
they had consulted Dr. Stinson:
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JUDGE BALLARD: * * * [A]t any point did you ever have
any concerns that might be raised by Adkins [sic, Atkins v. Virginia,
536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002)], or any
mental defect or mental deficiency that could have been identified
in Mr. Lawson that would have prevented him from knowingly and
intelligently and voluntarily entering into this plea waiver?
MR. MCVAY [defense counsel]: Not being a psychologist
or a psychiatrist * * * I’m not in a position * * * to technically
answer that. But based on my many years of experience and 24
years as a practicing attorney handling a substantial number of death
penalty cases * * * and having had clients who would be Adkins-
qualified or otherwise incompetent to enter a plea, * * * I have no
reason to think that Mr. Lawson would fall into any of those
categories at this point in time based upon my discussions with him
and many hours spent with him, over 17 months, as well as the time
spent with him today.
(Capitalization sic.)
{¶ 103} The presiding judge then asked counsel: “[I]s it safe for this panel
to assume that you conducted appropriate investigation from your practice into any
issue that would be addressed by Adkins or mental issues or competency issues?”
Counsel replied:
We did, your Honor. In keeping with the American Bar
Association Guidelines for the Representation of Defendants
Charged with Capital Crimes and their recommendation, if not
insistence, that we engage a forensic psychologist to work with and
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examine the defendant in the course of our representation, * * * that
in fact has been done. * * *
Having said that, and having discussed matters with * * *
Dr. Stinson at length, I think I can fairly represent that by virtue of
the fact that we have not filed any pleadings pertaining to a possible
incompetency to proceed in this matter * * *, I feel that we’re on
safe ground in that respect in the sense that we have done our due
diligence with regard to that * * *. We have looked into all of those
matters, discussed most, * * * I would suggest all of those matters
with Mr. Lawson. I believe that we’re on solid ground to move
forward with what his intentions are at this point in time.
(Emphasis added.) This statement indicates that Dr. Stinson examined Lawson and
that defense counsel consulted Dr. Stinson in determining whether to further pursue
the issue of Lawson’s competence. Lawson cites nothing in the record that either
contradicts counsel’s representations or shows that the investigation that had been
conducted was deficient.
{¶ 104} Finally, Lawson is unable to show prejudice resulting from
counsel’s declining to request a competency evaluation. It is true that if Lawson’s
counsel had requested an evaluation, the trial court would have been required by
statute to order one. But that says nothing about the likely outcome of the
evaluation and of the hearing. To show prejudice, Lawson must show that there is
a reasonable probability that an evaluation “would have revealed that he was
incompetent to stand trial,” Alexander v. Dugger, 841 F.2d 371, 375 (11th
Cir.1988).
{¶ 105} As we concluded in relation to Lawson’s first proposition of law,
the record simply contains insufficient indicia of incompetence to require a
competency evaluation or a competency hearing. If defense counsel had requested
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a competency evaluation, the trial court would have had to hold a hearing. But the
alleged indicia of incompetence that Lawson repeatedly cites would have been
insufficient to overcome the legal presumption of competence, because they do not
suggest that Lawson was incapable of understanding the nature and objective of the
proceedings against him or of assisting in his own defense. The record of the
penalty phase contains numerous references to Lawson’s mental-health history,
including diagnoses of bipolar disorder, depression, and posttraumatic-stress
disorder (“PTSD”). However, “[i]ncompetency must not be equated with mere
mental or emotional instability or even with outright insanity. A defendant may be
emotionally disturbed or even psychotic and still be capable of understanding the
charges against him and of assisting his counsel.” Bock, 28 Ohio St.3d at 110, 502
N.E.2d 1016. Accordingly, the record does not show a reasonable likelihood that
the trial court would have found Lawson incompetent to stand trial.
B. Failure to Argue Mercy As a Mitigating Factor
{¶ 106} In another part of his third proposition of law, Lawson contends
that his counsel were ineffective because they failed to renew a pretrial motion to
instruct the jury on mercy as a mitigating factor and because they did not argue
during the penalty phase that mercy was a mitigating factor.
{¶ 107} As the state points out, any issues concerning jury instructions
became moot once Lawson waived a jury trial. However, Lawson also contends
that counsel rendered ineffective assistance by failing to argue before the three-
judge panel that mercy is a mitigating factor. That facet of his claim is obviously
not rendered moot by Lawson’s jury waiver.
{¶ 108} However, the claim lacks merit, as we have repeatedly held that
mercy is not a mitigating factor. See, e.g., State v. Belton, 149 Ohio St.3d 165,
2016-Ohio-1581, 74 N.E.3d 319, ¶ 88; State v. Tench, 156 Ohio St.3d 85, 2018-
Ohio-5205, 123 N.E.3d 955, ¶ 253. Hence, counsel did not perform deficiently by
declining to argue otherwise. “Defense counsel is not required to advance
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arguments lacking merit. * * * It is not ineffective assistance for a trial lawyer to
maneuver within the existing law, declining to present untested or rejected legal
theories.” State v. McNeill, 83 Ohio St.3d 438, 449, 700 N.E.2d 596 (1998).
{¶ 109} Lawson also fails to show prejudice. Defense counsel in this case
presented extensive mitigating evidence focused on Lawson’s dysfunctional family
and upbringing, his alleged abuse, traumatic events in his life, and his diagnosed
mental disorders. Their penalty-phase arguments to the panel concentrated on that
evidence. Lawson does not explain how adding an express plea for mercy would
have been reasonably likely to make a difference in the penalty-phase outcome.
{¶ 110} We overrule Lawson’s third proposition of law.
V. SENTENCING OPINION
{¶ 111} In his fourth proposition of law, Lawson contends that errors in the
panel’s sentencing opinion require that we vacate his death sentences. He contends
that the panel improperly weighed nonstatutory aggravating circumstances against
him and improperly discounted the mitigating factors. We disagree.
A. Nonstatutory Aggravating Circumstances
{¶ 112} The trial court’s 12-page sentencing opinion begins with a
statement of facts. According to Lawson, the opinion includes several facts that
“made the crime particularly disturbing” and could only “be termed as
inflammatory.” Lawson contends that by mentioning these facts in the opinion, the
panel “employed” them as nonstatutory aggravating circumstances.
{¶ 113} The “inflammatory” facts Lawson refers to include the following:
that Lawson had sexual intercourse with Stacey’s body after shooting her, that
Stacey had recently ended a sexual relationship with Lawson, that Lawson posed
as D.H.’s father to deceive D.H.’s school into sending him home that day, that
Lawson “tricked” D.H. into entering the bedroom and shot him twice at close range,
that Lawson prepared in advance for the murders by propping a window open the
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night before, that he moved and covered the bodies, and that he was arrested two
days later “[a]fter a manhunt.”
{¶ 114} But a trial court does not “create nonstatutory aggravating
circumstances” merely by “discussing the facts of the crime.” State v. Robb, 88
Ohio St.3d 59, 82, 723 N.E.2d 1019 (2000). Moreover, the sentencing opinion here
correctly identified the aggravating circumstances of which Lawson was found
guilty as to each aggravated-murder count. When a trial court has correctly
identified the statutory aggravating circumstances pleaded and proved at trial, we
presume that the trial court understood the difference between statutory aggravating
circumstances and the facts that describe the nature and circumstances of the
offense. State v. Martin, 151 Ohio St.3d 470, 2017-Ohio-7556, 90 N.E.3d 857,
¶ 137.
{¶ 115} Lawson points to nothing in the opinion that suggests that the panel
used the facts as nonstatutory aggravating circumstances. Instead, he contends that
the opinion fails to affirmatively state that the facts were not so used, and he argues
that this failure suffices to rebut the presumption that the trial court considered only
the aggravating circumstances to which Lawson pleaded guilty. However, the
opinion does specifically state that the panel did not consider Lawson’s alleged
affair with Stacey or the other “offenses charged in the indictment,” which would
include his abuse of Stacey’s corpse, as aggravating circumstances.
{¶ 116} Lawson’s argument is inconsistent with our precedent. The
opinion “identified only the applicable statutory aggravating circumstances * * *
and listed no improper nonstatutory aggravating circumstances. Therefore,
[Lawson] has not rebutted the presumption that the court relied only upon the
aggravating circumstances it identified.” State v. Obermiller, 147 Ohio St.3d 175,
2016-Ohio-1594, 63 N.E.3d 93, ¶ 121.
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B. Unconsidered or Improperly Discounted Mitigation
{¶ 117} Lawson also contends that the panel’s sentencing opinion “contains
weighing errors” that violate the Eighth Amendment as construed in Lockett v.
Ohio, 438 U.S. 586, 604, 98 S.Ct. 2954, 57 L.Ed.2d 973 (1978) (plurality opinion),
and Eddings v. Oklahoma, 455 U.S. 104, 102 S.Ct. 869, 71 L.Ed.2d 1 (1982). The
United States Supreme Court in Eddings held that the sentencer in a capital case
may not “refuse to consider, as a matter of law, any relevant mitigating evidence.”
(Emphasis sic.) Id. at 114. Lawson contends that the trial court failed to consider
some mitigating factors and gave too little weight to others.
{¶ 118} Lawson contends that the trial court failed to consider Dr. Stinson’s
testimony bearing on the mitigating factor of Lawson’s youth, R.C. 2929.04(B)(4).
Because Lawson was 23 years old when he committed the murders, the trial court
gave little weight to this factor. However, the sentencing opinion does not discuss
Dr. Stinson’s testimony that the human brain does not finish developing until a
person reaches his mid-20s; in particular, Dr. Stinson testified that this is true of the
frontal lobe, which is responsible for “judgment, reasoning, impulse control, [and]
planning.” Because the trial court’s opinion does not discuss this testimony,
Lawson asks us to infer that the panel did not consider it.
{¶ 119} But “[w]hile a sentencing court must consider all evidence of
mitigation, it need not discuss each factor individually.” State v. Phillips, 74 Ohio
St.3d 72, 102, 656 N.E.2d 643 (1995). A trial court’s failure to discuss each
mitigating factor in its opinion does not give rise to an automatic inference that
factors that were not discussed in the opinion were not considered. Obermiller, 147
Ohio St.3d 175, 2016-Ohio-1594, 63 N.E.3d 93, at ¶ 125, citing State v. Roberts,
137 Ohio St.3d 230, 2013-Ohio-4580, 998 N.E.2d 1100, ¶ 54.
{¶ 120} Such an inference is warranted only in “unusual circumstances,”
Roberts at ¶ 64, and Lawson points to no such circumstances here. In Roberts, the
defendant’s allocution contained “potentially significant mitigation,” id., and “was
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the only relevant matter * * * specifically placed before the trial court as
mitigation” (emphasis sic), id. at ¶ 56; in those circumstances, the trial court’s
failure to mention the allocution in the sentencing opinion warranted the inference
that the court had failed to consider the allocution. But in this case, as in
Obermiller, the sentencing opinion “discussed multiple mitigating factors,”
Obermiller at ¶ 126. Therefore, the inference that the trial court failed to consider
Dr. Stinson’s testimony is not justified.
{¶ 121} Lawson also contends that the trial court erred by “unreasonably
discount[ing]” or giving “insufficient consideration to” his mitigating evidence
going to various other factors—i.e., assigning it no weight or insufficient weight.
Lawson contends that a trial court violates the holding in Eddings and the Eighth
Amendment by assigning insufficient weight to a defendant’s mitigation.
{¶ 122} As we have explained, this reading of Eddings is incorrect because,
as stated in Harris v. Alabama, 513 U.S. 504, 512, 115 S.Ct. 1031, 130 L.Ed.2d
1004 (1995), “the Constitution does not require a State to ascribe any specific
weight to particular factors, either in aggravation or mitigation, to be considered by
the sentencer.” The weight to be given to any mitigating factor is “ ‘an individual
decision by the fact finder,’ ” not a matter of law. State v. Davis, 139 Ohio St.3d
122, 2014-Ohio-1615, 9 N.E.3d 1031, ¶ 62, quoting State v. Richey, 64 Ohio St.3d
353, 369-370, 595 N.E.2d 915 (1992), abrogated in part on other grounds, see
State v. McGuire, 80 Ohio St.3d 390, 402-403, 686 N.E.2d 1112 (1997).
{¶ 123} Quoting Porter v. McCollum, 558 U.S. 30, 42, 130 S.Ct. 447, 175
L.Ed.2d 398 (2009), Lawson describes it as a case in which the United States
Supreme Court held that a state supreme court “ ‘either did not consider or
unreasonably discounted the mitigation evidence’ adduced in a post-conviction
hearing.” But “Porter does not stand for the proposition that the Eighth
Amendment forbids a sentencer to ‘discount’ mitigating evidence introduced at the
penalty phase of the trial.” Davis at ¶ 65.
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{¶ 124} Therefore, we overrule Lawson’s fourth proposition of law.
VI. SETTLED ISSUES
{¶ 125} Lawson’s fifth proposition of law raises various oft-rejected
arguments against the constitutionality of the death penalty and the Ohio statutes
governing its imposition and also raises similar arguments that the death penalty
violates international law. See, e.g., State v. Kirkland, 140 Ohio St.3d 73, 2014-
Ohio-1966, 15 N.E.3d 818, ¶ 106, 109-120; State v. Jenkins, 15 Ohio St.3d 164,
169-174, 473 N.E.2d 264 (1984). We summarily overrule this proposition of law.
See generally State v. Poindexter, 36 Ohio St.3d 1, 520 N.E.2d 568 (1988),
syllabus; State v. Spisak, 36 Ohio St.3d 80, 81, 521 N.E.2d 800 (1988).
VII. INDEPENDENT SENTENCE REVIEW
{¶ 126} Under R.C. 2929.05, we must independently review Lawson’s
death sentences. R.C. 2929.05(A) requires that we determine (1) whether the
evidence supports the trier of fact’s finding of aggravating circumstances, (2)
whether the aggravating circumstances of which the defendant was found guilty
outweigh the mitigating factors beyond a reasonable doubt, and (3) whether the
death sentences are proportionate to those affirmed in similar cases.
A. Aggravating Circumstances
{¶ 127} The aggravated murder of Stacey Holston (Count 1) has two
aggravating circumstances: course of conduct (R.C. 2929.04(A)(5)), and a felony-
murder circumstance predicated on aggravated burglary (R.C. 2929.04(A)(7)).
{¶ 128} The aggravated murder of D.H. (Count 2) has five aggravating
circumstances: murder of a victim under age 13 (R.C. 2929.04(A)(9)); murder
committed to escape detection, apprehension, trial, or punishment for another
offense (R.C 2929.04(A)(3)); course of conduct; felony murder predicated on
aggravated burglary; and felony murder predicated on kidnapping.
{¶ 129} The aggravated murder of Tammie McGuire (Count 3) has three
aggravating circumstances: course of conduct; murder to escape detection,
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apprehension, trial, or punishment; and felony murder predicated on aggravated
burglary.
{¶ 130} The aggravated murder of Donald McGuire (Count 4) has three
aggravating circumstances: course of conduct; murder to escape detection,
apprehension, trial, or punishment; and felony murder predicated on aggravated
burglary.
{¶ 131} The evidence in the record, including Lawson’s confession,
supports the panel’s finding as to each of the aggravating circumstances.
B. Mitigating Factors
{¶ 132} Against these aggravating circumstances, we must weigh any of the
relevant mitigating factors provided in R.C. 2929.04(B). These factors include
• the nature and circumstances of the offense, R.C. 2929.04(B),
• the history, character, and background of the offender, R.C. 2929.04(B),
• whether the victim of the offense induced or facilitated it, R.C.
2929.04(B)(1),
• whether it is unlikely that the offense would have been committed but for
the fact that the offender was under duress, coercion, or strong provocation,
R.C. 2929.04(B)(2),
• whether, at the time of committing the offense, the offender, because of a
mental disease or defect, lacked substantial capacity to appreciate the
criminality of the offender’s conduct or to conform the offender’s conduct
to the requirements of the law, R.C. 2929.04(B)(3),
• the youth of the offender, R.C. 2929.04(B)(4),
• the offender’s lack of a significant history of prior criminal convictions and
delinquency adjudications, R.C. 2929.04(B)(5),
• if the offender was a participant in the offense but not the principal offender,
the degree of the offender’s participation in the offense and the degree of
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the offender’s participation in the acts that led to the death of the victim,
R.C. 2929.04(B)(6),
• and any other factors that are relevant to the issue whether the offender
should be sentenced to death, R.C. 2929.04(B)(7).
1. Age
{¶ 133} Under R.C. 2929.04(B)(4), “[t]he youth of the offender” is a
mitigating factor. Lawson was born in 1994 and was 23 years old when he
committed these murders. Lawson’s age “qualifies as a mitigating factor under
R.C. 2929.04(B)(4).” State v. Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842
N.E.2d 996, ¶ 195.
{¶ 134} In the penalty phase, Lawson presented testimony from Dr.
Stinson, a forensic psychologist. Dr. Stinson testified that the human brain
continues to develop until a person reaches his mid-20s. He specifically noted that
the frontal lobe—which is responsible for things like judgment, reasoning, impulse
control, and planning—is the last part of the brain to develop and does not reach
full development until the mid-20s.
2. Prior Criminal History
{¶ 135} Under R.C. 2929.04(B)(5), “[t]he offender’s lack of a significant
history of prior criminal convictions and delinquency adjudications” is a mitigating
factor. The trial court found that Lawson has no previous convictions or
delinquency adjudications.
3. Mental Disease or Defect
{¶ 136} The diminished-capacity mitigating factor, R.C. 2929.04(B)(3), is
inapplicable. Although Lawson has been diagnosed with various mental disorders,
including bipolar disorder, Dr. Stinson did not testify that any of them deprived him
of “substantial capacity to appreciate the criminality of [his] conduct or to conform
[his] conduct to the requirements of the law,” R.C. 2929.04(B)(3). The other
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mitigating factors set forth in R.C. 2929.04(B) that are not addressed in this opinion
are likewise inapplicable.
4. History, Character, and Background
{¶ 137} Lawson’s history, character, and background constituted the heart
of his case in mitigation. In the penalty phase, Lawson presented three witnesses:
Carolyn Taylor, Stephanie Bentley, and Dr. Stinson. Carolyn Taylor is Lawson’s
mother. Stephanie Bentley is his half-sister and Carolyn’s daughter. Dr. Stinson
interviewed Lawson for a total of 12 hours during four sessions and also
interviewed Lawson’s mother. He reviewed information obtained by a mitigation
specialist who had conducted interviews of Lawson, his mother, his stepmother
Martha Lawson, his half-sisters Stephanie Bentley and Summer Riesner, and others
familiar with Lawson and his family. Dr. Stinson reviewed children’s services,
educational, employment, medical, mental-health, and jail records pertaining to
Lawson, records pertaining to Carolyn Taylor’s family background and upbringing,
and other records.
{¶ 138} Dr. Stinson identified 11 “adverse childhood experiences”
(“ACEs”) that place a child at risk for adverse health, mental-health, and social
outcomes. They are physical abuse, sexual abuse, emotional abuse, physical
neglect, emotional neglect, “intimate partner violence,” violence against the
mother, “substance misuse in the household,” parental divorce or separation,
mental illness of a household member, and the incarceration of a household
member. Dr. Stinson testified that a research study conducted by the Centers for
Disease Control and Prevention found that ACEs relate to approximately 40
negative outcomes. The presence of four or five ACEs indicates “significantly
increased risk for negative outcomes,” and the likelihood of negative outcomes
rises with the number of ACEs.
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{¶ 139} According to Dr. Stinson, Lawson had experienced “at least” nine
ACEs. The only two Dr. Stinson failed to definitively find were sexual abuse and
physical neglect.
{¶ 140} Lawson was born in April 1994. His parents are Delbert “Ray”
Lawson and Carolyn Taylor. He was the third of five children Carolyn had by five
different men. Both of Lawson’s parents have been divorced and remarried
multiple times. Carolyn has lived on welfare, food stamps, and Social Security
disability benefits.
{¶ 141} Ray and Carolyn lived together for about a month; when Carolyn
became pregnant with Lawson, Ray left her. Carolyn lost custody of Lawson in
1995. Ray denied his paternity until a DNA test proved that he was Lawson’s
father; after that, he sought and was awarded custody of Lawson. According to Dr.
Stinson, Martha Lawson recalled that Carolyn had dropped Lawson off at Ray and
Martha’s house coatless in the middle of a winter night with the words, “It’s your
turn.”
{¶ 142} Lawson lived with Ray and Martha until he was 16. Also living in
the Lawson household were Ray and Martha’s son Ray Jr. and Martha’s son James
Munyon. Carolyn was entitled to visitation with Lawson on Wednesdays and
alternate weekends. However, she testified that sometimes Ray and Martha
deprived Lawson of a visit as a punishment.
{¶ 143} While living with Ray and Martha, Lawson was especially close to
his paternal aunt, Linda McFann. Carolyn testified that Linda was “like a second
mom” to him. Unfortunately, Linda died in a house fire. Carolyn testified that
Lawson was “devastated” by Linda’s death. Dr. Stinson testified that Linda died
in 2006, when Lawson was about 12 years old. According to Dr. Stinson, Lawson
still had not “resolved” his bereavement five years later. At that time, a neighbor
told Lawson that he was glad Linda was dead, and Lawson responded by
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threatening the neighbor with a butcher knife. Lawson was hospitalized at a
mental-health facility after this incident.
{¶ 144} Lawson was also quite close to the boyfriend of one of his aunts,
whom he called “Uncle Tracy.” Lawson told Dr. Stinson that Tracy was the most
positive influence in his life. But Tracy died of a heroin overdose in about 2016.
{¶ 145} When Lawson was 16, Ray and Martha divorced, and Ray moved
to Kentucky, leaving his children behind. Custody of Lawson then reverted to
Carolyn, who had married Carl Kelly. A few months later, Carolyn and Kelly broke
up, but Lawson continued to live with Kelly, whom Bentley described as like a
father to Lawson. Dr. Stinson believed that Kelly was generally a positive influence
on Lawson and may have provided “some positive role modeling.” On the other
hand, Bentley testified that Kelly sold a lot of marijuana and provided some of it to
Lawson. After moving out, Carolyn maintained contact with Lawson, seeing him
every few days and talking to him on the phone.
{¶ 146} Dr. Stinson described the “complicated family structure” within
which Lawson was raised. Ray left Lawson’s mother to marry Martha, and
Lawson’s mother had a relationship with Martha’s brother Gary Munyon, who was
the father of Lawson’s half-sister Stephanie Bentley. Lawson was teased in school
because of this “weird” family situation. Additionally, Lawson’s grandfather
fathered a child with one of his daughters-in-law (Lawson’s aunt by marriage); that
child was referred to as Lawson’s “Uncle Cuz” because he was both uncle and
cousin to Lawson.
{¶ 147} Since at least age 11, Lawson has repeatedly alleged that his father,
stepmother, and other family members abused him. He described his father as an
“abusive asshole” who would get drunk and punch him.
{¶ 148} Carolyn testified that during visitations, she sometimes saw
unexplained injuries on Lawson. Once she saw stitches in his head. She said that
someone once squeezed Lawson’s ears so tightly that they were severely bruised
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and had turned black. Bentley remembered seeing this as well, but she never saw
any other bruising or injures. Lawson told Dr. Stinson that Martha would pinch his
ears to the point of bruising and would strike him in the face.
{¶ 149} On one occasion, Carolyn testified, a dark orange substance was
draining from Lawson’s ear. Carolyn recalled that when she took Lawson to a
doctor to treat his ear, the doctor said that it looked as if someone had jabbed the
metal end of a pencil into Lawson’s ear after removing the eraser.
{¶ 150} Dr. Stinson testified that according to the medical records he
reviewed, there were two cases of drainage from Lawson’s ears. The first instance
of “bloody drainage” occurred when Lawson was three; almost a year later, Lawson
experienced the orange discharge that had been described by Carolyn from the same
ear. According to Dr. Stinson, medical records documented that Lawson’s
stepbrother, James Munyon, had shoved pencils into Lawson’s ears; however, Dr.
Stinson did not make clear whether this behavior had caused the discharges.
{¶ 151} Dr. Stinson admitted that to his knowledge, no specific instances of
abuse against Lawson had ever been substantiated. And although Dr. Stinson
believed that Lawson was a victim of abuse, he eventually conceded that he did not
know whether Lawson had been abused. (Dr. Stinson did not classify the alleged
insertion of pencils into Lawson’s ears as a type of “abuse.”)
{¶ 152} Dr. Stinson also testified that Lawson reported abuse “over and
over and over to people who did nothing.” Dr. Stinson felt that the fact that
Lawson’s claims went unheeded was actually “more relevant” than whether he
actually was abused, because it contributed to his feelings of being unloved:
We can look back on it and say “Well, it * * * really wasn’t abuse.”
From my standpoint what’s more relevant is the fact that once he
reported his abuse, nobody did anything about it * * * and he
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internalized [the belief that] nobody cares, nobody’s going to protect
me, nobody loves me and I’m unlovable.
{¶ 153} Lawson did tell his mother that he was being abused, and his
medical records showed that he reported past abuse to medical-health professionals
during his treatment sessions.
{¶ 154} However, when Lawson first alleged to authorities that he was
being abused, the authorities did not ignore it; they investigated and found no
evidence to support the claim. The penalty-phase evidence includes records for
Lawson and his family from the Lawrence County Department of Job and Family
Services that were admitted as a court’s exhibit. Those records include a children’s
services report showing that Ray and Martha were investigated in 2006 after
Lawson reported to the Ironton police that he was being abused.
{¶ 155} According to the records, Lawson alleged that his stepmother
slapped his face, his siblings “put erasers in his ears,” and his parents “hit him
everywhere.” But the investigator found only one small bruise on Lawson’s knee,
and that appeared to the investigator to be normal for a preteen child and to not
have been deliberately inflicted.
{¶ 156} The investigator learned that Lawson’s father had recently spanked
him with a belt; however, the spanking was inflicted as a punishment after Lawson
choked his brother, Ray Jr., during a squabble. Martha told the investigator that
Lawson had expressed a desire “to get his father in trouble like he was in trouble
from choking” his brother.
{¶ 157} Although Lawson has never reported that he was sexually abused
and in fact has denied it, Dr. Stinson nonetheless suspected that Lawson may have
been sexually abused as a child. He based this suspicion on the existence of
“rampant” sexual abuse in Lawson’s family over the years. Carolyn’s oldest son
was allegedly sexually abused and went on to abuse two sisters and a cousin.
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Lawson’s stepbrother was sexually abused by a neighbor. One of Lawson’s half-
sisters was sexually abused by Carolyn’s brother-in-law. A generation before,
Carolyn’s family members had been involved in numerous allegations of sexual
abuse. Dr. Stinson believed that Lawson may have denied being sexually abused
because it was so common as to become “normalized” in his family.
{¶ 158} Lawson’s mother, Carolyn Taylor, was raised in poverty; her
family was dependent on welfare and food stamps, and the children were
malnourished. Carolyn grew up in a trailer that housed 12 people. Dr. Stinson
testified that “there were concerns that the boys and the girls were sharing bedrooms
and sleeping together.” The home was leaky and roach-infested and had no indoor
bathroom.
{¶ 159} During Carolyn’s childhood, numerous allegations of physical
abuse, sexual abuse, and neglect were leveled against her parents and stepparents;
many of them were against her father in particular. Children’s services
investigators were able to substantiate some of these allegations, but according to
Dr. Stinson, the “vast majority” were unsubstantiated. Nevertheless, Dr. Stinson
testified that the “remarkable” number of allegations said a great deal about the
culture of Carolyn’s family.
{¶ 160} Dr. Stinson also stated that Carolyn suffered from “significant
mental health problems.” Documented symptoms he listed included agitation,
anhedonia (loss of interest in pleasurable activities), anxiety, crying spells,
disorganized thought, difficulty concentrating, hallucinations, homicidal and
suicidal thoughts, hyperactivity, paranoia, panic attacks, phobic avoidance,
preoccupation, self-mutilation, and feelings of worthlessness. Her “mood
disturbance” manifested itself in the forms of severe depression, anger, euphoria,
irritability, mania, and “mixed moods,” i.e., simultaneous symptoms of depression
and mania.
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{¶ 161} Dr. Stinson related that Carolyn had been diagnosed with anxiety
disorder, panic disorder, agoraphobia, “moderate and recurrent” major depressive
disorder, various forms of bipolar disorder including “mixed [simultaneously manic
and depressive] severe, with psychotic features,” and schizoaffective disorder, a
psychotic disorder combining schizophrenia and bipolar disorder. She had been
treated with antidepressants, mood stabilizers, and antipsychotic drugs. Carolyn’s
doctor had determined that her mental disorders left her “functionally impaired,”
unable to carry on day-to-day activities. The Social Security Administration had
found that she was “permanently impaired and unable to engage in any gainful
activity.”
{¶ 162} According to Dr. Stinson, Lawson also had three relatives—an
uncle, aunt, and great-uncle—who had attempted suicide. And Lawson described
a maternal half-brother as “absolutely insane” and as having delusions. Dr. Stinson
testified that severe mental-health problems have a genetic component, so that the
children of parents with severe mental-health problems are particularly at risk to
inherit them.
{¶ 163} Lawson has in fact had mental-health problems and has been
diagnosed with mental disorders since childhood. Most significantly, in March
2011, shortly before he turned 17, Lawson was diagnosed with anxiety disorder and
bipolar disorder. In April of that year, he was admitted to the psychiatric ward at
Mercy Franciscan Hospital after a violent incident with his neighbor. Hospital staff
members believed that past abuse had contributed to his emotional difficulties.
{¶ 164} Lawson continued to receive mental-health evaluations and
treatment in 2011 and 2012. During one psychiatric examination, he said he was
having flashbacks to past abuse. In 2012, Lawson was hospitalized again because
he was contemplating injuring his neighbor.
{¶ 165} Since 2011, Lawson has been diagnosed repeatedly with depressive
disorder and PTSD. Dr. Stinson testified that when he interviewed Lawson, he
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exhibited classic symptoms of depression and PTSD. Despite previous
hospitalizations, Dr. Stinson testified, Lawson did not receive the kind of treatment
he needed.
{¶ 166} Lawson has had anger issues dating back to his childhood. During
the 2006 children’s services investigation, the investigating social worker wrote
that she was concerned about Lawson’s inability to control his anger. Dr. Stinson
testified that Lawson was enrolled in an anger-management class at age 13 because
he was unable to regulate his emotions; however, his stepmother removed him
because the class took time away from his chores and homework. At age 16, he
was diagnosed with “anger disorder.” Dr. Stinson noted that “there is no such thing
as anger disorder,” but he interpreted this diagnosis to mean that Lawson had a
mood disorder in which anger was predominant.
{¶ 167} A consistent factor in Lawson’s personality has been his repeatedly
expressed feelings that he was worthless; he described himself to Dr. Stinson as
feeling like “just a piece of crap” and “like a dog.” Schoolmates made fun of his
family and his first name. (His mother meant to name him “Aaron,” but she
misspelled it as “Arron” on his birth certificate. His preferred pronunciation is “Ar-
ron,” with the emphasis on the second syllable, but people frequently mispronounce
it.) Bentley testified that Martha favored her own children over Lawson.
According to Dr. Stinson, Lawson used marijuana to deal with feelings of
emptiness and worthlessness.
{¶ 168} Lawson’s family has an extensive history of drug and alcohol
problems. Lawson told Dr. Stinson that his father, Ray, was “drunk all the time.”
Bentley testified that Ray drank “[e]very day, all day long.” Carolyn told Dr.
Stinson that Ray was “a real bad drunk.” During the period when Lawson lived
with Ray and Martha, Martha’s brother Gary Munyon was released from prison and
moved into the household. Dr. Stinson testified that Munyon not only smoked
marijuana but traded it for sex.
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{¶ 169} Despite Lawson’s family history, Dr. Stinson believed that Lawson
himself did not have “severe drug and alcohol problems.” But Dr. Stinson stated
that Lawson did use marijuana and other drugs to cope with physical pain and
emotional distress. Bentley testified that Lawson smoked marijuana frequently or
daily. Dr. Stinson diagnosed Lawson with a “cannabis use disorder,” but he
conceded that this disorder caused no major impairment of Lawson’s functioning.
There was no evidence that Lawson had been using alcohol or drugs at the time of
the aggravated murders in this case.
{¶ 170} Lawson had numerous medical problems throughout his life.
When he was two, a dog bit him on the cheek, although Carolyn testified that the
injury was not serious. At the age of three, he had a laceration to the forehead,
requiring stitches, and had skin-cancer surgery. At the age of four, his tongue was
clipped twice to correct a speech impediment. Both the skin-cancer surgery and
the tongue clipping were outpatient procedures. At the age of 12, while playing
with his siblings, he was shot in one eye with an “airsoft” gun (similar to a BB gun,
but firing plastic or rubber pellets), causing temporary blindness in that eye. Dr.
Stinson testified that Lawson has continued to have “vision problems” since that
injury. In addition, Lawson’s gallbladder was removed in 2010.
{¶ 171} In 2011, Lawson suffered multiple medical problems. Severe
headaches required several doctor and hospital visits. He also experienced
degenerative disc disease, abdominal pain, and “abnormal findings related to his
colon and appendix.” In 2017, Lawson was in a “fender-bender” accident and
struck his head on a rear-view mirror. While he did not seek medical attention at
the time, he experienced chronic headaches after the accident.
{¶ 172} In addition to the above factors, Lawson expressed remorse for the
murders in his confession and in his unsworn statement. He told the panel, “I know
what I did was wrong” and stated that he was “truly sorry” for what he did. He
apologized to everyone he had harmed, including the four murder victims and his
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own family. He said that he cannot sleep at night, cries all the time, cries himself
to sleep, and has flashbacks. He concluded: “I don’t expect sympathy. * * * If it
be death penalty, then I’ll take it. I’m at peace with whatever you give me.”
Lawson also expressed his remorse to Dr. Stinson, who felt that Lawson’s remorse
was sincere.
{¶ 173} Dr. Stinson testified about Lawson’s conduct in the Morrow
County jail, where he was held pending trial. A jail supervisor described Lawson
to Dr. Stinson as trustworthy, well behaved, respectful, and “not * * * a problem.”
Other correctional officers consistently told Dr. Stinson that Lawson was not
causing any problems. Whenever Dr. Stinson saw Lawson interacting with
officers, they seemed to have a tension-free and professional relationship. On one
occasion, Lawson gave jail staff members advance warning that several other
inmates were planning to disrupt jail operations by flooding their toilets.
{¶ 174} Lawson’s jail records showed two “write-ups” in the approximately
16 months he was there. In January 2018, he got upset about a lockdown, kicked a
door, and threatened an officer; he lost all privileges as a result. Dr. Stinson
described the other incident as “equivocal.” A Lawrence County deputy sheriff
who was transporting Lawson accused him of resisting him and of disrespect and
disobedience; however, a Morrow County deputy stated that there had been no
problem. Lawson was not disciplined for this incident. Overall, Dr. Stinson opined
that when compared to other inmates he had worked with, Lawson had adjusted to
incarceration “relatively” well, even “remarkably well.”
5. Nature and Circumstances of the Offense
{¶ 175} The trial court gleaned one mitigating factor from the
circumstances of the offense: while in the Holstons’ house on the day of the
murders, Lawson fed two-year-old B.H., changed his diaper, and put him down for
a nap. Beyond that, nothing about the nature and circumstances of the offenses in
this case could be considered mitigating.
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C. Weighing
{¶ 176} We must determine whether the aggravating circumstances that
were found by the three-judge panel outweigh the mitigating factors presented in
this case beyond a reasonable doubt. R.C. 2929.05(A) and 2929.03(D)(1); see State
v. Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, ¶ 140. We
determine that they do.
{¶ 177} Lawson’s mental-health history is the strongest mitigating factor in
this case. At various times, Lawson was diagnosed with bipolar disorder,
depression, and PTSD, and he did not receive adequate treatment for these
disorders. See State v. Graham, 164 Ohio St.3d 187, 2020-Ohio-6700, 172 N.E.3d
841, ¶ 209. We note in particular that bipolar disorder is “a major mental illness.”
Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, at ¶ 205. Although
Dr. Stinson did not testify that the murders were attributable to Lawson’s mental
disorders, we find that Lawson’s mental-health history is entitled to substantial
weight.
{¶ 178} We must consider Lawson’s youth as a mitigating factor. See R.C.
2929.04(B)(4). This court has frequently upheld death sentences for 23-year-old
murderers and has ordinarily given the (B)(4) factor little weight in those cases.
See, e.g., Conway, 108 Ohio St.3d 214, 2006-Ohio-791, 842 N.E.2d 996, at ¶ 195
(“little weight”); State v. Jackson, 107 Ohio St.3d 53, 2005-Ohio-5981, 836 N.E.2d
1173, ¶ 173 (“modest weight”); State v. Ferguson, 108 Ohio St.3d 451, 2006-Ohio-
1502, 844 N.E.2d 806, ¶ 127 (“little weight”). We recognize that we recently
accorded “significant weight” to the age of an offender in Graham, id. at ¶ 207.
However, Graham is fundamentally distinguishable. Graham had just turned 19 at
the time he committed aggravated murder, a little more than one year removed from
the minimum age for death-penalty eligibility. In contrast, Lawson was 23 when
he committed the murders at issue here, a more significant passage of time from
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the minimum age of eligibility. Therefore, we consider Lawson’s youth to be a
factor that carries some weight.
{¶ 179} The evidence that Lawson was abused is not conclusive. The
record does show, however, that Lawson experienced a degree of instability in his
upbringing, with several changes in custody and living arrangements. The evidence
also shows that he was surrounded by poor role models and had few good role
models and that he felt unloved and worthless.
{¶ 180} Because Lawson was 23 years old when he committed the four
aggravated murders in this case, he had at least some “time to distance himself from
his childhood and allow other factors to assert themselves in his personality and his
behavior,” State v. Campbell, 95 Ohio St.3d 48, 53, 765 N.E.2d 334 (2002);
compare Johnson, 144 Ohio St.3d 518, 2015-Ohio-4903, 45 N.E.3d 208, at ¶ 138
(19-year-old offender was “not far removed” from his upbringing).
{¶ 181} Yet we have “seldom ascribed much weight in mitigation to a
defendant’s unstable or troubled childhood.” State v. Kirkland, 160 Ohio St.3d 389,
2020-Ohio-4079, 157 N.E.3d 716, ¶ 174, citing Campbell at 51-54; see also State
v. Cooey, 46 Ohio St.3d 20, 41, 544 N.E.2d 895 (1989). And Lawson’s childhood
surely presents nothing comparable to State v. Tenace, 109 Ohio St.3d 255, 2006-
Ohio-2417, 847 N.E.2d 386, which we have noted as “[t]he benchmark case for
assessing the weight of childhood trauma” based on its “appalling facts,” State v.
Beasley, 153 Ohio St.3d 497, 2018-Ohio-493, 108 N.E.3d 1028, ¶ 248. The
defendant in Tenace was raised by criminal and drug-addicted parents, sold by his
mother for sexual services, forced to watch his sister being sexually abused, and
encouraged to cheat and steal. Tenace at ¶ 102-103. Therefore, Lawson’s history
and background are entitled to some weight, “but only to the extent his ‘criminal
* * * acts are attributable to’ it,” Campbell at 53, quoting California v. Brown, 479
U.S. 538, 545, 2017 S.Ct. 837, 93 L.Ed.2d 934 (1987) (O’Connor, J., concurring).
50
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{¶ 182} Although retrospective remorse is ordinarily not a strong mitigating
factor, “remorse [that] leads to surrender and confession is a more impressive
factor.” State v. Wiles, 59 Ohio St.3d 71, 93, 571 N.E.2d 97 (1991). In this case,
Lawson did surrender—although that decision may have been influenced by a cold
night in the woods without supplies, shelter, or weapons. More importantly,
Lawson gave a complete, truthful confession that aided the police with their crime-
scene investigation. Therefore, we find that Lawson’s remorse and cooperation are
entitled to some weight in mitigation. His generally good conduct in jail is also
entitled to some weight.
{¶ 183} With respect to D.H.’s murder, the aggravating circumstances
include that Lawson engaged in a course of conduct—i.e., committed multiple
murders—and the fact that D.H. was younger than 13. “In particular, the R.C.
2929.04(A)(9) child-murder specification is entitled to great weight because it
involves the murder of a young and vulnerable victim.” State v. Trimble, 122 Ohio
St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242, ¶ 328. And the cold-blooded nature
and details of D.H.’s murder are especially significant concerns. Moreover, the
commission of multiple murders is a grave aggravating circumstance that carries
great weight. State v. Hutton, 100 Ohio St.3d 176, 2003-Ohio-5607, 797 N.E.2d
948, ¶ 91. The two felony-murder circumstances and the escaping-detection
circumstance add still more weight to the state’s side of the scales.
{¶ 184} The murders of Stacey and her parents lack the child-murder
aggravating circumstance, but each has a course-of-conduct and a felony-murder
circumstance. In addition, the murders of Stacey’s parents have the escaping-
detection circumstance.
{¶ 185} Two recent cases in which we have found that aggravation did not
outweigh mitigation beyond a reasonable doubt, Johnson and Graham, each
involved 19-year-old defendants, both of whom “entered a residence to commit
robbery and killed a [single] person inside.” Graham, 164 Ohio St.3d 187, 2020-
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Ohio-6700, 172 N.E.3d 841, at ¶ 215. By contrast, Lawson was 23 years old; he
entered the Holstons’ residence and lay in wait specifically to kill; over a period of
12 hours, he killed four people, one an eight-year-old child who should not even
have been in the house, and he attempted to kill a fifth.
{¶ 186} This case invites particular comparison with Graham, which it
resembles in that both Lawson and Graham were young defendants who suffered
from untreated or insufficiently treated mental-health issues and adverse
environmental factors. See Graham at ¶ 196. In fact, Lawson’s mental disorders—
bipolar disorder, PTSD, depression, and anxiety—are more significant than
Graham’s oppositional defiant disorder and conduct disorder, see id.{¶ 187} However, this case is distinguishable from Graham in numerous
important ways. We have already noted some of the key distinctions: Lawson was
four years older than Graham was when the crimes were committed; Lawson killed
four people to Graham’s one; one of Lawson’s victims was eight years old and that
innocent victim was in the house only because of Lawson’s deception; Lawson
entered the house where the crimes occurred with the express purpose of
committing murder, unlike Graham, who entered for the purpose of robbery with
no intention to kill anyone. And the list goes on.
{¶ 188} While Graham was the principal offender in the aggravated murder
he committed, he “was not the mastermind,” 164 Ohio St.3d 187, 2020-Ohio-6700,
172 N.E.3d 841, at ¶ 205, of the drug robbery that led to the murder; he was
recruited by a friend. In this case, Lawson was not just the principal offender; he
was the sole offender. Nobody recruited or enticed him; the whole thing was his
idea.
{¶ 189} The murder in Graham was a quick reaction to events during the
robbery: Graham told the victim not to look at the robbers, the victim expressed
doubt that Graham would shoot him, and Graham shot him. Id. at ¶ 12. In contrast,
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Lawson planned and prepared for Stacey’s murder well in advance and committed
four murders over a 12-hour period in which the death toll mounted.
{¶ 190} Like Lawson, Graham used marijuana daily. But unlike Lawson,
Graham was also addicted to Xanax, using “massive” daily amounts of it, Graham
at ¶ 199. Moreover, Graham’s Xanax use made him more irritable and aggressive
and less inhibited. Id. at ¶ 199, 210. Indeed, Graham’s expert witness testified that
it was unlikely that Graham would have committed the murder but for his Xanax
addiction. Id. at ¶ 199. Lawson had a cannabis-use disorder, but according to Dr.
Stinson it caused no major impairment of his functioning, and there is no evidence
that drug use played any role in the murders in this case.
{¶ 191} This case is undeniably one in which the defendant has presented
significant mitigating factors. But this is also a case in which the defendant
slaughtered four people, including the callous slaying of an eight-year-old child.
With respect to each of the four aggravated murders before us, we find that the
aggravating circumstances outweigh the mitigating factors beyond a reasonable
doubt.
D. Proportionality
{¶ 192} We further determine that the death sentences for these crimes are
proportionate to sentences approved in similar cases. We have approved death
sentences in cases combining multiple murders with one or more child murders.
State v. Mammone, 139 Ohio St.3d 467, 2014-Ohio-1942, 13 N.E.3d 1051; State v.
Powell, 132 Ohio St.3d 233, 2012-Ohio-2577, 971 N.E.2d 865; Trimble, 122 Ohio
St.3d 297, 2009-Ohio-2961, 911 N.E.2d 242; Montgomery, 148 Ohio St.3d 347,
2016-Ohio-5487, 71 N.E.3d 180. Indeed, we have approved death sentences in
numerous cases that involved multiple murders when all the victims were adults.
See, e.g., State v. Spaulding, 151 Ohio St.3d 378, 2016-Ohio-8126, 89 N.E.3d 554(two murders, one attempted murder); Beasley, 153 Ohio St.3d 497, 2018-Ohio-
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493, 108 N.E.3d 1028 (three murders, one attempted murder); State v. Madison,
160 Ohio St.3d 232, 2020-Ohio-3735, 155 N.E.3d 867 (three murders).
VIII. CONCLUSION
{¶ 193} We affirm the judgments of conviction. We further affirm all four
sentences of death.
Judgment affirmed.
FISCHER and DEWINE, JJ., concur.
DONNELLY, J., concurs, with an opinion.
O’CONNOR, C.J., concurs in judgment only and concurs in Justice
Donnelly’s concurring opinion.
STEWART, J., concurs in part and dissents in part and would reverse the
death sentences.
BRUNNER, J., dissents, with an opinion.
_________________
DONNELLY, J., concurring.
{¶ 194} Respectfully, I fully concur with this court’s judgment affirming
appellant Arron L. Lawson’s convictions. I reluctantly concur, however, with this
court’s judgment affirming Lawson’s death sentence.
{¶ 195} Having been diagnosed with bipolar disorder, posttraumatic-stress
disorder, and depression, there is no denying that Lawson suffers from serious
mental illnesses and that he did not receive adequate treatment for these disorders.
Of these diagnoses, bipolar disorder has been found to be a major mental illness.
See State v. Ketterer, 111 Ohio St.3d 70, 2006-Ohio-5283, 855 N.E.2d 48, ¶ 172,
205. The majority opinion recognizes that Lawson’s mental-health history was
substantial and accorded it the mitigating factor entitled to the strongest weight.
See majority opinion at ¶ 177. The General Assembly has also recognized the
critical importance of this issue, see 2020 Am.Sub.H.B. No. 136, which became
effective during the pendency of this appeal.
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January Term, 2021
{¶ 196} As of April 12, 2021, a person who has been diagnosed with a
“serious mental illness”—including bipolar disorder—is ineligible for a death
sentence, R.C. 2929.025(E)(1), when the defendant timely raises the issue and
proves by a preponderance of the evidence, R.C. 2929.025(D)(1), that the illness
“significantly impaired the person’s capacity to exercise rational judgment,”
2929.025(A)(1)(b), with respect to either conforming to the law or appreciating the
nature, consequences, or wrongfulness of the person’s conduct,
2929.025(A)(1)(b)(i) and (ii). Because Lawson was sentenced before the effective
date of 2020 Am.Sub.H.B. No. 136, he has one year after its effective date to seek
a postconviction remedy, R.C. 2953.21(A)(2)(b). See also R.C.
2953.21(A)(1)(a)(iv) and 2953.21(A)(3)(a), as amended. Notwithstanding our
judgment today, the postconviction statutes leave a door open for Lawson.
O’CONNOR, C.J., concurs in the foregoing opinion.
_________________
BRUNNER, J., dissenting.
{¶ 197} Testing the competency of persons accused of capital crimes is
critical to affording the degree of due process guaranteed by the Ohio and federal
Constitutions and fulfills the proscription found in the Eighth Amendment to the
United States Constitution against cruel and unusual punishment. Drope v.
Missouri, 420 U.S. 162, 174-175, 95 S.Ct. 896, 43 L.Ed.2d 103 (1975); Atkins v.
Virginia, 536 U.S. 304, 321, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002). In short,
ensuring that a defendant is competent to stand trial is necessary to protect the right
to a fair trial. Drope at 174-175.
{¶ 198} However, determining competency and the mental condition of an
accused is not just an exercise that is relevant to trial participation. Competency
must also be established to convict, see Pate v. Robinson, 383 U.S. 375, 378, 86
S.Ct. 836, 15 L.Ed.2d 815 (1966), and execute, see Ford v. Wainwright, 477 U.S.
399, 410, 106 S.Ct. 2595, 91 L.Ed.2d 335 (1986) an accused. The United States
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Supreme Court has also prohibited the execution of severely mentally impaired
defendants, finding the execution of those defendants excessive and violative of a
number of public policies concerning capital punishment. Atkins at 321. The
United States Supreme Court has also prohibited the execution of juveniles,
recognizing their developmental immaturity and diminished culpability. Roper v.
Simmons, 543 U.S. 551, 569-571, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005). In Ohio,
the General Assembly has recently prohibited the imposition of the death penalty
for the crime of aggravated murder when the defendant had a serious mental illness
at the time that he committed the offense. See, e.g., R.C. 2929.02(A), 2929.025,
and other statutes enacted in 2020 Am.Sub.H.B. No. 136. This case is therefore
about more than whether appellant, Arron Lawson, was able to consult with his
lawyers and reasonably understand the proceedings against him. This appeal is an
opportunity for this court to reexamine the protections and precautions that are
central to ensuring that any death sentence that is imposed is appropriate and
subjected to a reliable, deliberate, and rigorous constitutional review.
{¶ 199} Former Justice Paul Pfeifer stated when he served as a justice of
this court that “[t]he death penalty should be reserved for the most severe of cases.”
State v. Ashworth, 85 Ohio St.3d 56, 75, 706 N.E.2d 1231 (1999) (Pfeifer, J.,
dissenting); see also State v. Murphy, 91 Ohio St.3d 516, 563, 747 N.E.2d 765(2001) (Pfeifer, J., dissenting) (the death penalty should be imposed only on “those
murderers who truly deserve death”). It is difficult to imagine Lawson’s
horrendous acts not falling into the category of the worst of cases. But this court is
constitutionally bound to not only review Lawson’s sentence but also to verify the
integrity of the process leading to the imposition of the death penalty as the
punishment for his crimes. This should not be a mechanistic analysis; it should be
a thorough endeavor that closely examines all aspects of the proceedings that have
culminated in our review. Because there are too many unaddressed concerns in the
majority’s analysis, I respectfully dissent.
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I. Lawson’s Competency to Enter Guilty Pleas and Waive a Jury Trial
A. A trial court’s duty regarding a defendant’s competency
{¶ 200} When the issue of competency is “raised” before trial by counsel
for a criminal defendant, by the prosecution, or by the court, a hearing on the matter
is mandatory. R.C. 2945.37(B); State v. Bock, 28 Ohio St.3d 108, 109, 502 N.E.2d
1016 (1986). Likewise, after the conclusion of the trial-court proceedings, if a
person who was convicted of a capital crime and sentenced to death wanted to forgo
further legal challenges, essentially volunteering for death, this court has required
that the person undergo a competency evaluation and that the trial court hold a
hearing before such a request would be honored. See State v. Berry, 74 Ohio St.3d
1492, 658 N.E.2d 1062 (1996) (ordering that an independent psychiatric expert be
appointed); State v. Berry, 77 Ohio St.3d 1439, 671 N.E.2d 1279 (1996) (remanding
the matter to the trial court for an evidentiary hearing on mental competency). For
the period of litigation lying between the two markers of a death-penalty
proceeding—i.e., before the trial and during or following the sentencing (such as
forgoing an appeal or forgoing other legal challenges)—there are points at which a
defendant’s decision or request may or is likely to be an indicator that his
competency to assist in his own defense should be determined pursuant to R.C.
2945.37(G), such as when a defendant indicates his or her wish to terminate
counsel’s representation, when a defendant indicates his or her wish to waive a jury
trial, and when a defendant indicates his or her wish to forgo the presentation of all
or some mitigating evidence at sentencing. These pivotal points along the
continuum of a death-penalty prosecution are critical events that could serve in
whole or in part to tip the scales of justice toward or away from the ultimate
punishment—death.
{¶ 201} Therefore, it is understood that R.C. 2945.37(B) dictates that when
requested before trial, a competency examination is mandatory and that when a
defendant wishes to waive the ability to challenge an imposed death sentence, a
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competency hearing is required, see State v. Berry, 80 Ohio St.3d 371, 375, 686
N.E.2d 1097 (1997). However, clear guidelines are lacking about the way
competency should be questioned and examined in the stages that occur between
the period before the start of a trial and the final imposition of a death sentence.
Thus, trial courts have been free to apply whatever standards they choose during
those stages, and their decisions are not overturned on appeal unless there are
“sufficient indicia of incompetency” in the record, State v. Were, 94 Ohio St.3d
173, 761 N.E.2d 591 (2002), paragraph two of the syllabus. This court has stated
that “ ‘[c]ommon sense dictates that no defendant can make a record of lack of
competency absent the findings and hearings contemplated by R.C. 2945.37 and
2945.371.’ ” Were at 177, quoting Bock at 113 (Wright, J., dissenting). Thus,
relying on a record when there is no requirement to create one is hardly the model
of fair process, and it cannot in any sense be deemed rigorously constitutional.
B. Indicia of incompetency in Lawson’s case
{¶ 202} Lawson has raised three areas of concern that, taken together,
should be held to have triggered the trial court’s duty to order a pretrial
incompetency exam: when Lawson acted against the advice of his counsel by
waiving a trial and entering guilty pleas, when Lawson exhibited indecisiveness
about his decision to enter guilty pleas, and when Lawson revealed to the court that
he was taking prescription medications. Going against the advice of counsel, alone,
does not equate with incompetence. Indecisiveness, alone, may not necessarily
constitute a clear indicator that a defendant is incompetent to stand trial. Nor may
taking prescription medications, standing alone, be a clear indicator of
incompetence. Our inquiry in this appeal, however, is not whether we believe that
Lawson was competent; it is whether these factors taken together should be held to
reasonably indicate to a trial court that further inquiry into the defendant’s
competency is required, to ensure the fairness of the proceeding, especially in a
capital case. See R.C. 2945.37(B).
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{¶ 203} There were indicia, i.e., signs or indications, that should have
prompted—and did prompt—the trial court to further inquire about concerns of
possible “mental defect or mental deficiency” regarding Lawson’s competency to
waive a trial and change his pleas. On multiple occasions, the trial court raised the
issue of a possible competency evaluation.1 The record is clear that the presiding
trial judge was hesitating and “second-guessing” whether the types of
considerations underlying Atkins, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335,
and other precedents had been observed or applied. The trial judge appeared
hesitant about Lawson’s thought process in making the grave and weighty decision
to plead guilty in a proceeding that could carry the consequential punishment of
death.
{¶ 204} Lawson’s actions in waiving his right to a jury trial and entering
pleas of guilty to multiple capital offenses, combined with the trial court’s
hesitations, were indicia of incompetency that do exist in our limited record,
considering that no competency examination or hearing ever occurred. It should
not be our role to guess from the evidence what Lawson’s state of mind was and
therefore what his mental capabilities were. If he had been assessed for
competency, we would be able to read a report from a mental-health professional
about his ability and state of mind. Without that kind of evidence, it is difficult to
discern from the record whether Lawson was exercising the rights of a rational,
mentally and physically healthy person in making this decision. See Berry, 80 Ohio
St.3d at 375, 686 N.E.2d 1097, quoting Smith v. Armentrout, 812 F.2d 1050, 1057
(8th Cir.1987) (it is “ ‘very probable’ ” that in “ ‘every case’ ” in which a capital
1. The majority opinion outlines the discussions between the trial judge and counsel regarding
Lawson’s competency, including an in-chambers discussion on February 11, 2019. During that
discussion, the trial judge noted that he had “brought this [issue] up months ago” and was now
“second-guessing” his decision to decline to order a competency evaluation. Further discussion in
the record occurred on February 21, 2019, when the presiding trial judge asked counsel whether
they had any concerns about Lawson’s having any “mental defect or mental deficiency” and
inquired as to counsel’s investigation of those issues.
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defendant desires to “ ‘abandon further legal proceedings, there will be a possibility
that the decision is the product of a mental disease, disorder, or defect’ ”). That we
would guess or infer what a competency evaluation would have shown debases our
unique role in reviewing death-penalty appeals.
{¶ 205} The record is clear that when the trial court during the plea colloquy
asked Lawson whether his mental clarity was affected by any medications, Lawson
disclosed that he was taking several—naproxen, Vistaril, metronidazole, and
Zoloft. The trial court questioned Lawson and defense counsel regarding these
medications and asked whether they could be affecting Lawson’s ability to reason
or his judgment. And while there is no affirmative indication in the record that
Lawson’s medications did affect his ability to understand or reason, more inquiry
certainly was in order. See Drope, 420 U.S. at 174-175, 95 S.Ct. 896, 43 L.Ed.2d
103 (discussing whether, in light of inferences drawn from the undisputed evidence,
the trial court’s failure to further inquire into a defendant’s competency deprived
him of a fair trial). Unanswered questions remained: Why was he taking those
medications? How long had he been taking those medications? What medical
diagnoses and symptoms indicated that those medications should be prescribed?
Was he experiencing or had he ever experienced any side effects from those
medications, including drowsiness, confusion, or suicidal thoughts? A competency
exam could have provided answers to these questions to allay concerns regarding
Lawson’s competency. Lawson’s statement that he was taking prescription
medications was, at a minimum, a legitimate factor relating to the fundamental
question of his competency to stand trial and to decide to plead guilty to capital
murder.
{¶ 206} The majority, citing State v. Cowans, 87 Ohio St.3d 68, 84, 717
N.E.2d 298 (1999), reasons that the trial court and defense counsel were able to
observe Lawson and that he exhibited no behavior that raised any question as to his
competency. There are a number of reasons why licensed members of the legal
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profession and the judiciary should not perform competency evaluations based on
their own observations, either directly or indirectly by reading a record. Using this
method to make what amounts to a medical determination that a person charged
with a capital crime is or was competent is not only constitutionally flawed, it is
unacceptable. This is particularly so when there is evidence that a defendant is
taking prescription medications that may affect his or her behavior or demeanor.2
No one asked Lawson whether drowsiness or confusion might be a side effect of
any of his medications. No one asked Lawson whether any of his current
medications were prescribed for impulse control. No one asked Lawson whether
he was depressed or suicidal. And no one asked him on the record why he was
choosing to plead guilty to capital offenses.
{¶ 207} Lawson’s decision to waive a trial and enter pleas of guilty in this
capital case, combined with the trial court’s apparent misgivings as they appear in
the record, support that further inquiry into Lawson’s competency was necessary.
I would thus reverse the trial court’s judgment based on this issue and would
remand this cause to the trial court for further proceedings regarding Lawson’s
competency.
C. R.C. 2945.37(B) requires a hearing when the issue of competency is raised
{¶ 208} The majority rejects Lawson’s argument that R.C. 2945.37(B)
required a competency hearing in this case, concluding that the issue was not
sufficiently raised at trial and that, even if it had been, not raising it was harmless
error. When “the issue of the defendant’s competence” to stand trial is “raised”
before the trial has begun, “the court shall hold a hearing on the issue.” (Emphasis
added.) R.C. 2945.37(B). The statute does not require the issue to be sufficiently
2. According to information available on the Cleveland Clinic’s website, drowsiness is a side effect
of most of the medications Lawson was taking; confusion is a side effect of Vistaril and
metronidazole; and suicidal thoughts, loss of memory, hallucinations, and loss of contact with reality
are side effects of Zoloft. https://my.clevelandclinic.org/health/drugs (accessed July 9, 2021)
[https://perma.cc/UL5E-XLDS].
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raised, raised by motion, or raised with the intention of obtaining or ordering a
hearing. See id. (“the court, prosecutor, or defense may raise the issue”).
{¶ 209} On multiple occasions before the trial began, the trial court itself
raised the issue whether a competency evaluation should be done. See fn. 1 of this
opinion, supra. The majority interprets the record to indicate that the trial-court
judge was merely asking the defense whether it wanted a competency hearing. But
isn’t it just as plausible that the trial judge was truly questioning whether there was
enough information available to reach a sound conclusion that Lawson was
competent to not only stand trial but to waive it? At any rate, this was not a situation
in which the trial judge specifically stated that Lawson “ ‘evidenced no mental
instability,’ ” Cowans, 87 Ohio St.3d at 84, 717 N.E.2d 298. Rather, the court
“raised” the issue of Lawson’s competency for purposes of R.C. 2945.37(B).
{¶ 210} Nothing prohibits this court from reviewing the record and
determining that the issue of competency was raised. Nothing prohibits us from
remanding this case for a competency evaluation to be conducted and a competency
hearing to be held; the result of that hearing would determine the course of events
from that point. Such a hearing is required by statute, but one was not held. If we
do this, we would accomplish several important aims. We would acknowledge the
gravity of any capital defendant’s adverse-interest request to plead guilty to a
capital offense. We would also provide valuable guidance to this state’s trial courts
that creating a sound record compliant with R.C. 2945.37(B) is required, especially
when the defendant is making an adverse-interest decision, such as waiving a trial
and pleading guilty to one or more capital offenses. Remanding this case for a
competency hearing would be of benefit to the public in ensuring a high standard
of compliance with due-process principles in cases in which a death sentence could
be imposed.
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{¶ 211} The issue of Lawson’s competency was raised, requiring the trial
court to hold a competency hearing. See Bock, 28 Ohio St.3d at 109, 502 N.E.2d
1016; R.C. 2945.37(B). We should require that this hearing be held.
D. General problems with the current framework
{¶ 212} When a capital defendant seeks to abandon his or her rights and
acquiesce in entering a guilty plea, essentially clearing the thorny thicket on the
path toward execution by the state, we owe that defendant, the victims and their
families, the lower courts, and the public at large a standardized approach to ensure
fairness and uniformity in trials of this gravamen. Viewing the record using the
“sufficient indicia of incompetency” method falls short, because it is based on
gleaning information from a record when often no record was made.
{¶ 213} It is not acceptable to simply rely on the observations of the trial
court and/or the experiences and opinions of defense counsel that a criminal
defendant is competent to stand trial. The dissenting opinion in State v.
Montgomery, relying on State v. Mink, 101 Ohio St.3d 350, 2004-Ohio-1580, 805
N.E.2d 1064, ¶ 66, and United States v. Damon, 191 F.3d 561, 565 (4th Cir.1999),
squarely addressed this point:
The majority seems to be satisfied that [appellant, Caron
Montgomery,] stated in open court that he understood what he was
doing and that he signed a written waiver. This conclusion was
bolstered by the opinion of Montgomery’s attorney—who was not a
medical expert—that Montgomery understood the rights that he was
waiving. But if medication prevented Montgomery from truly
comprehending his actions, how reliable were his spoken assurances
and his signed statement to the contrary? The trial court did not
inquire about whether or how the medications affected
Montgomery’s abilities.
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I believe that more was required under Mink and Damon. At
the very least, when someone is undoubtedly under the influence of
a prescription medication when making the decision to enter a guilty
plea, the trial court must inquire about the effects of the medication
so that it can ensure that the defendant understands the gravity of the
situation and comprehends his or her actions. This court should not
affirm a conviction, let alone a death sentence, by guessing about
the mental competence of a defendant. Further inquiry was required
before the trial court accepted Montgomery’s plea of guilty.
(Emphasis sic.) State v. Montgomery, 148 Ohio St.3d 347, 2016-Ohio-5487, 71
N.E.3d 180, ¶ 196-197 (O’Neill, J., dissenting). Most attorneys and judges are not
practicing mental-health or disability experts. Relying on a defense attorney’s
opinion, when that opinion is likely to be a one-off (based on how defense counsel
interprets the defendant’s behavior at that particular juncture of the trial),
anecdotally based opinion on the defendant’s competency is neither a sound legal
nor ethical practice. Judging a criminal defendant’s capacity to reason and
understand through observed behavior by defense counsel and/or the court,
especially when coupled with a grave, adverse-interest decision such as pleading
guilty to one or more capital offenses, denies due process when the defendant is
taking prescription medication with clinical indications and side effects that
research shows may affect sound reasoning at the time the defendant changes his
or her plea. And, finally, there is an inherent and systemic flaw that may not even
be recognized when we perpetuate reliance on judges’ and attorneys’ subjective
assessments of a capital defendant’s competency to stand trial or change a plea:
perhaps we perpetuate predisposed ideas and stereotyped, culture- or race-based
perceptions and predispositions about what is acceptable behavior during a trial.
See State v. Williams, 99 Ohio St.3d 439, 2003-Ohio-4164, 793 N.E.2d 446, ¶ 62-
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63 (giving deference to those who saw and heard the proceedings and stating that
the defendant “displayed no outrageous, irrational behavior during trial”). We can
do better than this. We are obligated to do better than this, especially in capital-
murder trials, when the ultimate penalty is death at the hands of the state.
{¶ 214} In the last 35 years, this court has rarely determined that a
competency examination or hearing was warranted based on indicia in the record.3
In an opinion that might be considered an outlier, Were, 94 Ohio St.3d 173, 761
N.E.2d 591, we remanded a death-penalty case for the trial court to conduct a
pretrial competency hearing. This result was based on defense counsel’s repeated
requests for a competency hearing; on one defense attorney’s opinion, based on his
prior experience as a probate-court referee in civil-commitment hearings, that the
3. In examining cases in which this court has considered the issue whether a competency
examination or hearing should have been conducted when a defendant made a request adverse to
his own interest, this court has overwhelmingly held that insufficient indicia of incompetency were
present. See, e.g., Montgomery, 148 Ohio St.3d 347, 2016-Ohio 5487, 71 N.E.2d 180, at ¶ 57-59
(insufficient indicia of incompetency when defendant answered questions appropriately at plea
hearing, defense counsel’s assessment of competency was informed, and defendant displayed no
outrageous, irrational, or confused behavior); State v. Johnson, 112 Ohio St.3d 210, 2006-Ohio-
6404, 858 N.E.2d 1144, ¶ 157, 161 (insufficient indicia of incompetency when defendant wished to
fire counsel and counsel requested competency hearing; trial court denied request after conducting
“its own examination of Johnson”); State v. Barton, 108 Ohio St.3d 402, 2006-Ohio-1324, 844
N.E.2d 307, ¶ 59-60 (insufficient indicia of incompetency when defendant wished to limit the
presentation of mitigating evidence and had attempted suicide nine months before trial); State v.
Monroe, 105 Ohio St.3d 384, 2005-Ohio-2282, 827 N.E.2d 285, ¶ 98-99 (trial counsel were not
ineffective for failing to request a competency exam when defendant elected to limit the presentation
of mitigating evidence, because there were insufficient indicia of incompetency in the record); State
v. Skatzes, 104 Ohio St.3d 195, 2004-Ohio-6391, 819 N.E.2d 215, ¶ 148-158 (insufficient indicia of
incompetency when defendant’s behavior in court did not suggest that he was incompetent and
counsel did not request a competency exam, even though defendant was called “Crazy George” by
other inmates and had previously exhibited paranoia); State v. Ahmed, 103 Ohio St.3d 27, 2004-
Ohio-4190, 813 N.E.2d 637, ¶ 65-68 (denial of request for competency hearing after trial had
commenced was not abuse of discretion because there were insufficient indicia of incompetency,
even though an expert testified that defendant suffered from severe mental illness); State v. Jordan,
101 Ohio St.3d 216, 2004-Ohio-783, 804 N.E.2d 1, ¶ 29-31 (insufficient indicia of incompetency
when defendant wished to waive counsel but no other behaviors raised concerns about his
competence); State v. Thomas, 97 Ohio St.3d 309, 2002-Ohio-6624, 779 N.E.2d 1017, ¶ 37-39
(insufficient indicia of incompetency due to lack of “[o]bjective indications such as medical reports,
specific references by defense counsel to irrational behavior, or the defendant’s demeanor”).
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defendant was incompetent; and on the defendant’s delusional beliefs, documented
in pro se filings, that his attorneys were in cahoots with the state. Id. at 175-176.
We determined that this perfect storm of facts met the “sufficient indicia” test: a
defense attorney who was adept at recognizing potential incompetency, a defendant
whose behavior rose to such a level that his counsel believed that he was not able
to understand the proceedings against him, and the existence in the record of
numerous motions and requests for a competency assessment. Id. This court’s
decision today permits and perpetuates a practice that a clinical evaluation of the
mental competence of a defendant in a death-penalty case is not needed when a
defendant pleads guilty to the crime, even though there is ample evidence in the
record of his mental illness. And we find today that no medical evaluation for
competency is required when a defendant’s experienced attorney—by self-
proclamation—has adjudged his client to be competent based on counsel’s stated
ability to recognize mental illness, even when that client may not outwardly
demonstrate visible symptoms of mental illness to nonclinical laypersons during
the limited time they interact with them.
{¶ 215} In short, the approach perpetuated in this case denies criminal
defendants accused of capital crimes the guarantee that the laws of this state will
be applied in a rigorously constitutional manner when the consequences may be
irrevocable. We should not continue to rely on indicia in the record as sufficient to
determine a defendant’s competence to plead guilty without requiring evidence
based on sound medical judgment. It is incumbent on this court to require in death-
penalty cases what is now readily at our disposal—the use of science in a
competency evaluation so that the state puts to death only those whom we may
fairly determine have knowingly and competently pleaded guilty. In doing this, we
would avoid what amounts to guessing who is competent based on “indicia” (that
may or may not make it into the record) in favor of science-based evidence that is
informed by evidence-based practices.
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E. The need for evidence-based practices and not just indicia in the record
{¶ 216} On February 21, 2019, when the trial court held a change-of-plea
hearing for Lawson, the presiding judge asked defense counsel whether they had
any concerns about Lawson’s having any “mental defect or mental deficiency.”
Lead defense counsel first informed the court that he was not “a psychologist or a
psychiatrist” and was not in a position to “technically answer” that question.
Defense counsel then informed the trial court that Dr. Bob Stinson had been
consulted on the issue and that the defense did not intend to raise the issue of
Lawson’s competency. At this point in the proceedings, there was nothing in the
record about Lawson’s being suicidal, having attempted suicide in the past, having
experienced (or at the time experiencing) confusion and possible hallucinations, or
taking several medications. The fact that those indicia were not yet in the record at
this point does not negate their existence. It does, however, demonstrate the
inherent flaws in this court’s current “sufficient indicia of incompetency” test.
{¶ 217} Defense counsel, the prosecutors, and the trial court entertained the
possibility of having Dr. Stinson render an opinion on Lawson’s competency. Dr.
Stinson had been hired as a mental- and behavioral-health expert for the mitigation
phase of the trial. He was not hired to perform a competency examination for the
purpose of trial. However, had the trial court been able to conduct at least a review
of his written report at this juncture of the proceedings, the following would have
become apparent:
1. Lawson was raised in a dysfunctional family, suffered from poverty,
emotional abuse, and probably physical abuse, and was exposed to familial
incest;
2. Lawson’s family members had a history of mental illness, including bipolar
disorder, depression, and suicidal behavior, and had a history of alcoholism
and drug abuse; Lawson’s mother was rated as being “significantly
functionally impaired” by her physician;
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3. Lawson had mental-health problems starting at least by age 13, when he
was enrolled in anger-management classes; he was diagnosed with bipolar
disorder in 2011; he was admitted into a psychiatric hospital on two
occasions following suicidal and homicidal episodes; he has been diagnosed
with depressive disorder and posttraumatic-stress disorder;
4. Since his psychiatric hospitalizations, he has been on a number of
medications, including mood stabilizers, antidepressant medicines,
antipsychotic drugs, and a medication to help with sleep and to control
impulses;
5. After his arrest, Lawson was seen by staff members at Shawnee Mental
Health, where he disclosed that he had attempted to hang himself several
years before and reported that he had been having thoughts of suicide;
6. After his arrest, Lawson was diagnosed with depression and anxiety and
reported to Dr. Stinson that he was having trouble sleeping and
concentrating and was occasionally having auditory and visual
hallucinations.
{¶ 218} This information about Lawson was not discussed at all at this point
in the proceedings even though it is discussed in this court’s majority opinion. The
Arron Lawson identified and described in Dr. Stinson’s report is a person impaired
by mental illness who has a stated history of being suicidal. The trial court was not
presented with this information until the mitigation phase of the proceeding, and
this is precisely an example of the problem with the test this court adopted in the
past and once again applies in Lawson’s case. Had the trial court simply ordered a
competency examination, as was discussed at several junctures during the trial
phase, the issue of Lawson’s competency to stand trial would have been made clear
in the record beyond the mere presence of vague indicia that the record now
contains.
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{¶ 219} Putting someone to death for his or her crimes, even when the
crimes are heinous and when it is apparent that the person on trial is the person who
committed the crimes, is always subject to the constitutional due-process principles
contained in the Bill of Rights, a document once demanded by, and its contents now
guaranteed to, the people. Due-process principles are not satisfied by guessing or
by the acknowledged inexactitude of gleaning indicia from a sketchy trial record.
The determination of Lawson’s competency should be based on evidence. That the
question of his competency was “raised” was enough to require the trial court to
order a competency evaluation and a hearing on the matter under R.C. 2945.37(B),
no matter what his attorney said to the court. See Drope, 420 U.S. at 177, 95 S.Ct.
896, 43 L.Ed.2d 103 (finding that even when a question of competency is inartfully
raised “it would have been, at the very least, the better practice to order an
immediate examination”).
{¶ 220} No longer should this court rely on the mere scaffolding of
tradition, intuition, and prior case authority for determining a matter that is the
subject of scientifically supportable evidence, especially when a statute (R.C.
2945.37(B)) requires otherwise. The benefits of requiring evidenced-based
practices when determining a defendant’s competency to stand trial are similar to
the benefits that are detailed in clinical literature for programs involving everything
from medicine and nursing, to education, to mental-health and substance-abuse
services, to psychiatry, to the imposing of criminal-justice sanctions and more. See,
e.g., Social Programs that Work, http://www.evidencebasedprograms.org
(accessed July 9, 2021) [https://perma.cc/T76K-9KFZ]. The United States
government’s Substance Abuse and Mental Health Services Administration
maintains an Evidence-Based Practices Resource Center, which supports the
administration’s stated purpose of “improving prevention, treatment, and recovery
support services for mental and substance use disorders,”
https://www.samhsa.gov/resource-search/ebp (accessed July 9, 2021)
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[https://perma.cc/M24L-T4P4]. This governmental center “provides communities,
clinicians, policy-makers and others with the information and tools to incorporate
evidence-based practices into their communities or clinical settings.” Id. The
center’s website contains a plethora of publications on both substance abuse and
mental illness, including co-occurring disorders, for both youths and adults. This
court should be requiring that evidence-based practices be the standard for
competency evidence used by the courts of this state for what are essentially clinical
conclusions regarding defendants’ competency to stand trial. Once we do this, we
will have taken a giant stride to ensure that due-process principles are adhered to in
the prosecutions of persons accused of crimes, especially those accused of
committing capital crimes.
F. Questioning competency at the instance of an adverse-interest request
{¶ 221} When reading the fact pattern of violence and often torture that
occurs in nearly every death-penalty case, the reader is left to conjecture: Who in
their right mind could do such a thing? Since that perception is present from the
beginning, and since an adverse-interest request such as agreeing to plead guilty to
a capital offense as charged could be viewed as irrational and against the
defendant’s self-interests, it would be best for courts to start from a presumption
that competency is at issue whenever a defendant makes an adverse-interest
request. Starting with this presumption and questioning competency in this way
would mean that a trial court’s compliance with R.C. 2945.37(B) would be ensured.
The trial court would then be required to conduct further inquiry, thus creating a
record and instilling a more reliable, constitutional approach.
{¶ 222} Questioning competency at the instance of an adverse-interest
request alleviates the necessity for a court to inquire as to defense counsel’s position
on the subject. The judiciary must dismiss the temptation to put defense attorneys
in the position of assessing their clients’ capabilities, which goes beyond the
attorneys’ expertise and their ethical duties. We also should steer courts away from
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looking for subjectively bizarre behavior and encourage them to simply obtain
information from a clinical expert using evidence-based practices.
{¶ 223} Questioning competency at the instance of an adverse-interest
request also triggers the building of a record. A competency examination and a
hearing would be the most comprehensive way to ensure a complete and thorough
record. The trial court should make a finding one way or the other based on
evidence in the record regarding the defendant’s mental capacity to understand
choices and assist in his or her own defense. This includes determining whether
the defendant possesses the ability to comprehend the ramifications of his or her
decision, including understanding that the choice may lead to death, determining
whether the defendant is able to make such a decision knowingly and intelligently,
not unduly affected by conditions of mental health, physical health, or
imprisonment, and determining whether the defendant possesses the ability to
reason logically and fully understands the ramifications of his decision. Berry, 80
Ohio St.3d at 371, 374-376, 686 N.E.2d 1097.
{¶ 224} For example, in State v. Mink, in which the defendant was charged
with aggravated murder for the horrendous stabbings and beatings of his parents,
the trial court sua sponte appointed two psychologists to conduct separate
competency examinations when Mink first informed the court that he wished to
enter pleas of guilty to all counts, to waive the presentation of mitigating evidence,
and to represent himself. 101 Ohio St.3d 350, 2004-Ohio-1580, 805 N.E.2d 1064,
at ¶ 31, 59-60. The trial court then made an initial determination based on the
reports of those psychologists that Mink was competent to stand trial and accepted
his guilty pleas and later made a separate determination that Mink was competent
to waive the presentation of mitigating evidence, after which it sentenced him to
death. Id. at ¶ 22-26, 60. This court affirmed Mink’s death sentence and he was
eventually executed as he had requested, see id. at ¶ 26, but because the trial court
had insisted on and had conducted a thorough, evidence-based process, we were
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not left to doubt the constitutionality of Mink’s death sentence with regard to his
competency. We noted that the trial court had gone “to great lengths” before
finding him competent, id. at ¶ 59, and that the court had “fully protected Mink’s
constitutional rights in determining his competency,” id. at ¶ 61.
{¶ 225} Perhaps not every decision a defendant in a capital case makes that
is against his or her interest should trigger a competency evaluation, but it would
behoove courts to proceed thoughtfully and cautiously. For example, a clinical
examination might not be required when a defendant wishes to waive representation
by counsel. When making a decision like that, the defendant still has procedural
and substantive protections in place. Courts should seek to examine a defendant’s
competency in view of the context and purpose of the proceeding. Therefore,
competency evaluations should be specifically tailored to address the capacity and
the ability of the defendant to understand the ramifications of the specific adverse-
interest request he or she is making. See Westbrook v. Arizona, 384 U.S. 150, 150-
151, 86 S.Ct. 1320, 16 L.Ed.2d 429 (1966).4
4. See also the trial court’s “Decision and Entry Finding the Defendant Competent to Waive the
Presentation of Mitigating Evidence,” in State v. Mink, Montgomery C.P. No. 2000-CR-2900 (June
28, 2001):
Applying the criteria set forth in State v. Ashworth (1999), 85 Ohio St.3d
56, [706 N.E.2d 1231,] and Based upon the Court’s inquiry of the Defendant
conducted in open court and the competency reports of Dr. Thomas O. Martin and
Dr. Kim Stookey, the Court finds that the Defendant:
1.) Understands the choice between life and death,
2.) Has the ability to make a knowing and intelligent decision not to
pursue the presentation of evidence,
3.) Fully understands the ramifications of his decision,
4.) Possesses the ability to reason logically, i.e. to choose means that
relate logically to his ends,
5.) Understands his right to present mitigating evidence,
6.) Understands the meaning of mitigating evidence,
7.) Understands the importance of mitigating evidence,
8.) Understands the use of mitigating evidence to offset the aggravating
circumstances and,
9.) Understands the effect of failing to present mitigating evidence.
The Court further finds that the Defendant’s decision to waive the
presentation of mitigating evidence is made knowingly, intelligently and
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{¶ 226} Additionally, requiring that a record be developed when a
defendant invokes an adverse-interest request ensures balance in the system. If
Lawson had been asked further questions, his suicidal ideation and suicide attempt
may have become known to the court, as counsel presumably were aware of those
matters. At that point, any court would certainly have sought further information
about the defendant’s mental health and capabilities before allowing the trial to
proceed for the state to seek his execution. See Ashworth, 85 Ohio St.3d at 64, 706
N.E.2d 1231 (noting the state’s interest “in not allowing the death penalty statute
to be used as a means of state-assisted suicide”).
{¶ 227} Because we must ensure rigorous compliance with constitutional
standards in capital cases, I cannot concur in affirming Lawson’s death sentences
under our current framework of analysis.
II. The Validity of Lawson’s Jury-Trial Waiver and Guilty Pleas
{¶ 228} Insofar as Lawson’s claims that his waiver of a jury trial and pleas
of guilty were not done knowingly, voluntarily, and intelligently, for the same
reasons articulated above that the court should have ordered a competency
examination, I cannot concur in the majority’s conclusion that the record supports
that Lawson’s pleas were fairly entered, underpinned by an adequate ability to
reason and understand the proceedings against him.
{¶ 229} In accepting the waiver and pleas, even if the trial court had
complied with State v. Ballard, 66 Ohio St.2d 473, 423 N.E.2d 115 (1981),
paragraph one of the syllabus, and with Crim.R. 11, and even if the trial court had
sufficiently inquired about Lawson’s use of medications, Lawson was never asked
why he wanted to enter the guilty pleas; his answer to that question may have
clarified his lack of perceived or real duress, delusion, misunderstanding, or
suicidal motivation.
voluntarily. The Court therefore accepts the Defendant’s decision to waive the
presentation of mitigating evidence.
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{¶ 230} For these reasons, this court should be encouraging trial courts to
thoroughly and appropriately examine a defendant’s competency and state of mind
when the defendant makes an adverse-interest request—such as pleading guilty to
one or more capital offenses—rather than tolerating trial courts’ failures to comply
with R.C. 2945.37(B).
III. Conclusion
{¶ 231} Because this court should not endorse a death sentence when the
constitutionality of a defendant’s convictions remains in doubt, I respectfully
dissent from the majority’s judgment. I would reverse Lawson’s convictions and
the sentences of death. I would further remand this case for the trial court to order
a competency examination that it contemplated ordering before it accepted
Lawson’s guilty pleas and to hold a hearing based on the findings and
recommendations contained in that evaluation, in accord with what I believe this
court’s holding should be, as expressed in this dissenting opinion.
_________________
Brigham M. Anderson, Lawrence County Prosecuting Attorney, and
Stephen E. Maher and Margaret S. Moore, Special Assistant Prosecuting Attorneys,
for appellee.
Thomas A. Rein and Robert A. Dixon, for appellant.
_________________
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