Opinion
Case No. C-1-92-547.
May 3, 2007
OPINION AND ORDER
Petitioner, a prisoner sentenced to death by the State of Ohio, has pending before this Court a habeas corpus action pursuant to 28 U.S.C. § 2254. This matter is before the Court upon the petition, return of writ, traverse, and state court record for final decision.
The factual and procedural history of this case was set forth in full in the Court's Opinion and Order of May 2, 2000, and will not be recounted herein. (Doc. No. 130). It is sufficient, for purposes of this Order, to note that petitioner was convicted of capital murder, as well as murder, in connection with the shooting deaths of his ex-girlfriend, Gwen Toepfert, and her new boyfriend, John Smith. The state asserted at trial that, in the early morning hours of April 24, 1984, petitioner gained entry to the apartment of Gwen Toepfert as John Smith exited the apartment, shot Mr. Smith twice with a pistol, shot Ms. Toepfert three times with the same pistol, looked outside the apartment for Mr. Smith, then returned to where Ms. Toepfert lay dead and shot her a final time with a shotgun. At the time of the murders, Ms. Toepfert's roomate, JoAnn Funk, was present in the apartment and observed most of what happened that morning.
After the murders, petitioner fled to Tennessee and confessed to a former acquaintance, Jimmy Joe Pennington, that he had killed two people. When local authorities arrived, petitioner informed them that he had "killed two people in Cincinnati earlier in the day." (Suppression Hrg. Trans. at 82). Petitioner provided a formal written statement detailing the murders.
Because of petitioner's difficulty reading and writing, the Tennessee authorities detailed petitioner's statement in writing, read it back to him, and asked petitioner to adopt the statement with an "x" to indicate that the written statement was accurate. The written statement, as well as the rights waiver, are attached at the end of this Opinion and Order.
Petitioner presented evidence during his sentencing hearing that he had abused alcohol for some time and was under the influence of alcohol at the time of the offenses. Petitioner also presented evidence that his father had been stabbed to death and his mother had died of cancer; that petitioner suffered from a borderline personality disorder and depression so severe that he was unable to cope with Gwen Toepfert's rejection of him or her initiation of a new relationship with John Smith; that petitioner was particularly amenable to treatment; that petitioner lacked a significant history of prior criminal convictions; and that on the day of the murders, petitioner could have harmed JoAnn Funk but did not.
Petitioner raised a total of eighty-seven claims for relief in his Amended Petition. (Doc. No. 79). In its Opinion and Order of May 2, 2000, the Court determined that many of petitioner's claims were procedurally barred, and that several of his other claims were not cognizable in federal habeas corpus. Specifically, the Court denied the following claims as procedurally barred: 1, 2 (in part), 3, 6 (in part), 7-11, 14, 15, 17-25, 27, 29-34, 36-42, 46, 48, 50-53, 55, 58-61, 65-69, and 74-87. The Court further denied claims 76-79 as not cognizable in federal habeas corpus. Thus, this order will address the merits of claims 2 (in part), 4, 5, 6, 12, 13, 16, 26, 28, 35, 43, 44, 45, 47, 49, 54, 56, 57, 62, 63, 64, 70, 71, 72, and 73.
I. Standard of Review
The habeas corpus statutes were amended, effective April 24, 1996, by the Antiterrorism and Effective Death Penalty Act of 1996, ("AEDPA"). Because petitioner filed his habeas corpus action more than a year before the effective date of the AEDPA, this Court's review of petitioner's constitutional claims is governed by habeas corpus law as it existed prior to the enactment of those amendments. Lindh v. Murphy, 521 U.S. 320, 326-27 (1997). That is, state court findings of fact are presumed correct, unless petitioner rebuts that presumption of correctness by clear and convincing evidence; questions of law, as well as mixed questions of law and fact, are reviewed de novo by this Court. Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999), cert. denied, 528 U.S. 946 (1999). With these principles in mind, the Court will consider the remaining constitutional claims that are properly before the Court for a review on the merits.II. Discussion
A. Restrictions on Mitigating Evidence Second Ground for Relief — The trial court denied Petitioner Bedford his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments when the court placed improper restrictions on the mitigation evidence at Petitioner's trial.
There are two parts to petitioner's second ground for relief. First, petitioner alleges that the trial court refused to allow testimony by psychologist Nancy Schmidtgoessling opining that petitioner was the most treatable of the "seven or eight" capital defendants she had seen. (Mit.Tr., at 53-4, 93). Petitioner also alleges that the trial court refused to allow him, during his unsworn statement, to express his remorse about his offenses or his feelings about punishment. (Mit.Tr., at 91-92). The Court, in its Opinion and Order of May 2, 2000, denied the latter part of petitioner's second ground, regarding his unsworn statement, as procedurally barred because petitioner abandoned it at the Ohio Supreme Court during his direct appeals of right. (Doc. No. 130, at 39-41). Thus, the only issue now before the Court is whether petitioner's allegations regarding the disallowed testimony by Dr. Schmidtgoessling present a meritorious constitutional claim.
Petitioner challenges the trial court's refusal to allow Dr. Schmidtgoessling to testify during the penalty phase of his trial that Bedford was, in her opinion, more treatable and subject to rehabilitation than other individuals who had committed similar acts. The facts relevant to this claim are as follows. Dr. Schmidtgoessling, a clinical psychologist on staff at the Court Clinic, was called by defense counsel to testify on petitioner's behalf during his penalty hearing. Toward the end of Dr. Schmidtgoessling's direct testimony, the following exchange occurred:
Q. [by Mr. Whalen, on behalf of Petitioner Bedford]: Do you have an opinion as to whether or not Mr. Bedford is treatable?
A. Yes, I do.
Q. And what is that opinion?
A. I'll compare this to other folks I've seen in courts.
Q. All right.
A. He's probably one of the more treatable people I've seen in the courts.
Q. Let's take that one step further. How many people have you had occasion to interview who were charged with a capital offense, in other words, who faced the possibility of the death penalty?
A. I believe I've seen about 7 or 8.
Q. And of those 7 or 8, how does Danny compare with them as far as treatability?
A. In my opinion —
MR. LONGANO [on behalf of the state]: Objection.
THE COURT: I don't really think that's relevant. She can testify as to how treatable, but I don't think comparing it to other capital cases is a relevant factor, a rule. Go ahead.
MR. BREYER: Judge, we would like to proffer her answer.
THE COURT: You can proffer it later. Go ahead.
Q. Of the number of people that you have seen in your experience, have you seen any people that were more treatable than Danny Bedford?
MR. LONGANO: Objection.
THE COURT: You can answer. Go ahead.
A. I've seen some people who are college graduates. I've done counseling at the University Center; I have a private practice. There are people that I would say are brighter than he, have more book learning, so they are more amenable in that sense to treatment. I would consider him to be a fairly treatable person in an objective sense.
MR. WHALEN: I have no other questions, Your Honor, except that we reserve the right to proffer the answer.
(Mit.Tr., at 53-54).
After defense counsel had presented all of their witnesses, and out of the presence of the jury, defense counsel made the following proffer.
MR. BREYER: I'd like to proffer the answer of Nancy Schmidtgoessling with regard to one question.
THE COURT: Go ahead.
MR. BREYER: I believe the proffer is he is the most treatable of any of the seven people she's examined previously with regard to treatment of people who are standing — facing the death penalty.
THE COURT: All right.
( Id. at 93). Defense counsel moved for a mistrial on the basis that Dr. Schmidtgoessling had not been permitted to give the proffered answer in the presence of the jury, and that petitioner had not been able to testify that he recognized he would get, at the very least, a life sentence, and that he did not want to die. ( Id. at 94).
On direct appeal, the Ohio Supreme Court concluded that petitioner had not been prevented from presenting relevant mitigation evidence. State v. Bedford, 39 Ohio St. 3d 122, 127 (1988), Exh. J to Return of Writ. The court recognized that capital defendants must be afforded broad latitude in the mitigation evidence they present, and that all relevant evidence must be considered. The court was of the view, however, that the testimony petitioner sought to present, i.e., that petitioner was the most treatable capital defendant Dr. Schmidtgoessling had ever assessed, was more "in the nature of the proportionality review which is the function of an appellate court rather than a jury," id., than it was "relevant" mitigation evidence. The court explained that a jury would not be able to adequately weigh such testimony without knowing the facts of the other capital cases. The court went on to point out that the trial court did allow Dr. Schmidtgoessling to testify that, "in comparison with other `folks I've seen in courts,' Bedford was one of the most treatable." Id.
It is well established that "the Eighth and Fourteenth Amendments require that the sentencer, in all but the rarest kind of capital case, not be precluded from considering, as a mitigating factor, any aspect of a defendant's character or record and any of the circumstances of the offense that the defendant proffers as a basis for a sentence less than death." Lockett v. Ohio, 438 U.S. 586, 604 (1978) (plurality); see also Eddings v. Oklahoma, 455 U.S. 104, 112-3 (1982); Skipper v. South Carolina, 476 U.S. 1, 4-5 (1986). In striking down the mandatory sentencing scheme fashioned by North Carolina, in an effort to remedy the arbitrary and capricious infliction of capital punishment that had resulted from unrestricted discretion on the part of sentencing juries, the plurality in Woodson v. North Carolina, 428 U.S. 280 (1976), explained that consideration of the "character and record of the individual offender and the circumstances of the particular offense [was] a constitutionally indispensable part of the process of inflicting the penalty of death." Id. at 304. Thus, all "relevant facets of the character and record of the individual offender or the circumstances of the particular offense" must be considered. Id. Mitigating evidence is relevant if it would provide a basis for imposing a sentence less than death. See Skipper, 476 U.S. at 4-5.
States have been cautioned not to apply mechanically state rules of evidence that might prevent the sentencer from considering relevant mitigating evidence, so long as the evidence is not inherently unreliable. See Green v. Georgia, 442 U.S. 95 (1979) (due process violation where state court excluded, on the basis of its hearsay rules, proffered mitigation testimony); see also Dutton v. Brown, 812 F.2d 593 (10th Cir. 1987) ( Eighth Amendment violation where state court excluded, on the basis of violation of witness sequestration order, testimony by defendant's mother), cert. denied sub nom., Dutton v. Maynard, 484 U.S. 836 (1987). That said, states retain their traditional authority to exclude proffered mitigating evidence as irrelevant. Lockett, supra, 438 U.S. at 605, n. 12 ("Nothing in this opinion limits the traditional authority of a court to exclude, as irrelevant, evidence not bearing on the defendant's character, prior record, or the circumstances of the offense.").
In Lockett, a plurality of the Supreme Court struck down a death sentence because Ohio, by statute, precluded the sentencer in that case from considering the absence of direct proof that the defendant specifically intended to cause the death of the victim, the defendant's comparatively minor role in the offense, or the defendant's age. Lockett, supra, 438 U.S. at 608. In Eddings, the Supreme Court struck down a death sentence because the sentencing judge had refused as a matter of law to consider as a mitigating factor the defendant's troubled upbringing and emotional disturbance. Eddings, supra, 455 U.S. at 115. In Skipper, the Supreme Court struck down a death sentence because the trial court had refused to allow the defendant to present testimony by two jailers and a regular visitor as to his positive adjustment to, and good behavior in prison. Skipper, supra, 476 U.S. at 4-5. And, in Hitchcock v. Dugger, 481 U.S. 393, 398-99 (1987), the Supreme Court struck down a death sentence because the trial judge had instructed the advisory jury to consider only statutory mitigating factors and the sentencing judge had refused to consider non-statutory mitigating factors.
Although the Supreme Court has never expressly addressed the issue, it would appear that the improper exclusion of mitigating evidence is subject to harmless error review. The plurality in Lockett made no mention of harmless error review. Similarly, in Eddings, the Supreme Court made no mention of harmless error review, stating only: "On remand, the state courts must consider all relevant mitigating evidence and weigh it against the evidence of the aggravating circumstances. We do not weigh the evidence for them." Eddings, 455 U.S. at 117. In Skipper, the Supreme Court appeared to have concluded that the improperly excluded mitigating evidence was not harmless error, when the Court rejected the state's argument that the proffered evidence was merely cumulative. Skipper, 476 U.S. at 8-9. Subsequently, in Hitchcock, the Supreme Court again appeared to have opened the door for application of the harmless error test, noting simply that the state had not argued that the error was harmless and that there had been no showing of harmless error. Hitchcock, 481 U.S. at 399.
This Court has found numerous decisions in which the courts found violations of Lockett and its progeny to be harmless: See, e.g., Bryson v. Ward, 187 F.3d 1193, 1205-06 (10th Cir. 1999); Boyd v. French, 147 F.3d 319, 322, 327-28 (4th Cir. 1998); Sweet v. Delo, 125 F.3d 1144, 1158-59 (8th Cir. 1997) (dicta); Horsley v. Alabama, 45 F.3d 1486, 1491-93 (11th Cir. 1995).
Based on a review of the applicable law and all relevant facts, this Court is not persuaded that the trial court erred in excluding Dr. Schmidtgoessling's proffered testimony that petitioner was, in her opinion, the most treatable of the seven or eight death-eligible prisoners she had seen. It bears reminding, in assessing whether the trial court excluded relevant mitigating evidence, just what Dr. Schmidtgoessling was permitted to testify to. Dr. Schmidtgoessling was permitted to testify that petitioner was one of the most treatable "folks" she had seen "in the courts." Specifically, the following exchange occurred during her testimony:
Q. Do you have an opinion as to whether or not Mr. Bedford is treatable?
A. Yes, I do.
Q. And what is that opinion?
A. I'll compare this to other folks I've seen in courts.
Q. All right.
A. He's probably one of the more treatable people I've seen in the courts. (Mit.Tr., at 53). In addition, Dr. Schmidtgoessling was permitted to testify that, during the course of her work, she evaluated seven or eight prisoners who were facing the death penalty:
Q. Let's take that one step further. How many people have you had occasion to interview who were charged with a capital offense, in other words, who faced the possibility of the death penalty?
A. I believe I've seen about 7 or 8.
( Id.). Although she was not permitted to testify specifically that petitioner was the most treatable of the seven or eight death-eligible prisoners she had seen, she was permitted to testify that he was the most treatable of all of the "folks" she had seen "in the courts." Those "folks" would necessarily include the seven or eight people who were facing the death penalty, and the jurors could reasonably have deduced and considered as much. Strictly speaking, therefore, the proffered testimony at issue was not excluded; it just was not presented in the exact manner that petitioner would have preferred.
The testimony that Dr. Schmidtgoessling offered — namely, that petitioner was one of the most treatable inmates she had seen — was far more favorable than petitioner acknowledges. Dr. Schmidtgoessling testified that she had been a clinical psychologist at the court clinic for two and a half years and that over those two plus years, she had testified a couple of times each month:
Q. How many times have you testified in that position as an expert witness?
A. It's difficult to say. Couple times a month, perhaps, for two and a half years.
( Id. at 48). It would be obvious to the jury, therefore, that Dr. Schmidtgoessling had seen an abundance of prisoners and was of the view that petitioner, in comparison to that large group, was one of the most treatable. Further, Dr. Schmidtgoessling testified that, as a clinical psychologist for the court clinic, she worked as a "friend of the court," as opposed to a witness who was pre-disposed to a certain side:
Q. And of those times [that you have testified], how many times was it as a witness for the State of Ohio?
A. We [at the Court Clinic] don't work for the State of Ohio. Our clinic is a friend of the court, meaning that we are advised by the judge that an evaluation is requested. We go see the person, and then we, in effect, come back with it for whatever side our data takes us. So we're not for one side or the other.
( Id. at 48-49). In other words, Dr. Schmidtgoessling was a neutral witness with no apparent bias for or against petitioner. Such a witness is far more persuasive to jurors than a witness giving the appearance of bias. See Skipper v. South Carolina, supra, 476 U.S. at 8 ("[T]estimony of more disinterested witnesses . . . would quite naturally be given much greater weight by the jury.").
In sum, when Dr. Schmidtgoessling's testimony is considered as a whole, it cannot be said that the trial court excluded relevant mitigating evidence. Moreover, the testimony that Dr. Schmidtgoessling offered was not only relevant; it was very favorable. The Court concludes, accordingly, that the trial court did not exclude relevant mitigating evidence in violation of Lockett and its progeny. The Court further concludes that, even assuming the trial court had committed a Lockett error in excluding Dr. Schmidtgoessling's testimony that petitioner was the most treatable of the seven or eight death-eligible prisoners she had seen — a finding that is not supported by the record — any such error was harmless. Given the body of relevant and favorable mitigating evidence that Dr. Schmidtgoessling was permitted to offer, the Court cannot find that the excluded testimony had a substantial and injurious effect on the jury's sentencing verdict. See Horsley v. Alabama, 45 F.3d 1486, 1491-93 (11th Cir. 1995) (applying "substantial and injurious effect" test for determining harmless error set forth in Brecht v. Abrahamson, 507 U.S. 619 (1993), and Kotteakos v. United States, 328 U.S. 750 (1946)).
For the foregoing reasons, the Court concludes that petitioner's second claim for relief is without merit and must be denied.
B. Ineffective Assistance of Counsel
Grounds four, five and six of the Amended Petition allege ineffective assistance of counsel during the mitigation phase of Bedford's trial. Ground fifty-six alleges ineffective assistance of counsel during the guilt phase. The standard for reviewing a claim of ineffective assistance of counsel is twofold:
First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable.Strickland v. Washington, 466 U.S. 668, 687 (1984). With respect to the first prong of the Strickland test, the Court notes that, "[b]ecause of the difficulties inherent in making the evaluation, a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Id. at 689.
To establish the second prong of the Strickland test, i.e., prejudice, a petitioner must demonstrate that there is a reasonable probability that, but for counsel's errors, the result of the proceedings would have been different. Id. at 694. "A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. Because petitioner must satisfy both prongs of the Strickland test to demonstrate ineffective assistance of counsel, should the Court determine that petitioner has failed to satisfy one prong, it need not consider the other. Id. at 697.
Inherent in counsel's responsibilities is the duty to investigate. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691; Sims v. Livesay, 970 F.2d 1575, 1580-81 (6th Cir. 1992); see also O'Hara v. Wigginton, 24 F.3d 823, 828 (6th Cir. 1994) (failure to investigate, especially as to key evidence, must be supported by a reasoned and deliberate determination that investigation was not warranted); Workman v. Tate, 957 F.2d 1339, 1345-46 (6th Cir. 1992) (reasonable investigation was lacking, so counsel's performance was deficient). Counsel is ineffective within the meaning of Strickland where it appears that counsel failed to investigate or prepare, failed to present any defense theory, or failed to subject the state's case to any meaningful adversarial challenge. See Kimmelman v. Morrison, 477 U.S. 365, 385 (1986) ("complete lack of pretrial preparation"); Rickman v. Bell, 131 F.3d 1150, 1157 (6th Cir. 1997) (counsel failed to actively advocate for client where preparation consisted solely of sixteen hours of interviewing client), cert. denied, 523 U.S. 1133 (1998); Groseclose v. Bell, 130 F.3d 1161, 1169-70 (6th Cir. 1997) (counsel had no defense theory to speak of and failed to present any meaningful adversarial challenge), cert. denied, 523 U.S. 1132 (1998). Because attorneys enjoy a heavy presumption of competence under Strickland, a claim of ineffective assistance of counsel for the failure to introduce certain evidence fails where the petitioner cannot demonstrate that the omission was attributable to counsel's failure to investigate. See Hutchison v. Bell, 303 F.3d 720, 749 (6th Cir. 2002), cert. denied, 123 S.Ct. 2608 (2003); Campbell v. Coyle, supra, 260 F.3d at 553. It bears reminding that the Sixth Amendment entitles criminal defendants not to perfect representation, but only effective representation. Cf. Mason v. Mitchell, 320 F.3d 604, 618 (6th Cir. 2003) (totality of circumstances did not demonstrate that counsel were unprepared where counsel filed numerous pretrial motions, argued several pretrial hearings, and clearly articulated defense theory to jury). It is with these standards in mind that the Court will analyze petitioner's claims of ineffective assistance of counsel.
1. Ineffective Assistance of Counsel During the Penalty Phase Fourth, Fifth and Sixth Grounds for Relief — Petitioner Bedford was denied his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments because he was denied the effective assistance of counsel in the mitigation phase of his capital trial.
In his fourth claim for relief, petitioner raises several allegations of ineffective assistance of trial counsel during the mitigation phase of his trial. In his fifth and sixth grounds for relief, petitioner argues that the trial court erred in failing to provide him with a competent neurologist and a social worker or a mitigation specialist to assist him during mitigation. Respondent argued that petitioner's fifth and sixth claims were procedurally barred, but this Court concluded in its Opinion and Order of May 2, 2000, that petitioner's fifth and sixth claims for relief were properly before the Court for a full review on the merits. (doc. no. 130, at 46-53). In so holding, the Court noted that petitioner had argued and preserved these claims during the state postconviction proceedings as claims of ineffective assistance of counsel. In his merit brief, accordingly, petitioner argues not that the trial court erred in failing to provide him with a competent neuropsychologist or a mitigation specialist/social worker, but that his trial attorneys were ineffective for failing to obtain said experts for use in the mitigation phase of his trial. Respondent's merit brief likewise addresses petitioner's fifth and sixth grounds for relief as allegations of ineffective assistance of counsel. Therefore, this Court will also address petitioner's fifth and sixth grounds for relief as claims of ineffective assistance of counsel. The Court will now consider petitioner's claims of ineffective assistance of counsel during the mitigation phase of his trial.
With respect to his claims of ineffective assistance of counsel during mitigation, petitioner argues that his trial attorneys violated their duty to investigate and prepare for the mitigation phase of his trial by failing to interview most members of petitioner's family, failing to obtain a social worker or an independent mitigation expert, and failing to request a more comprehensive mitigation-specific evaluation of petitioner by Dr. Schmidtgoessling or to supply Dr. Schmidtgoessling with the social history necessary for such an evaluation. Dr. Schmidtgoessling could have given more favorable testimony had she been properly informed. (Affidavit of Nancy Schmidtgoessling, Postconviction Petition Exh. 22, Return of Writ, Exh. T). In lieu of conducting their own investigation, petitioner argues, defense counsel relied on the presentence investigation report prepared by probation authorities who were neither trained nor inclined to conduct as comprehensive an evaluation as required for the preparation of a mitigation case on behalf of the defense, and who included in their report information that otherwise would have been inadmissible, such as petitioner's criminal record and incarceration on the charges. Petitioner argues that he was prejudiced by defense counsel's deficient performance because a wealth of relevant mitigating evidence was never presented to the jury, Dr. Schmidtgoessling was not notified that she would be testifying until a few days before the mitigation hearing, and she was not prepared to offer meaningful mitigation testimony. Crucial psychological evidence was never presented to the jury to draw a nexus between petitioner's background and the events that led up to his commission of the offenses. Although Dr. Schmidtgoessling testified that Bedford did not suffer from a mental illness, evidence introduced in the postconviction proceedings demonstrates that he was mentally ill at the time of the offenses and suffered from an organic brain impairment. (Affidavits of Dr. Thomas L. Heiskell, Postconviction Petition, Exh. 25, Return of Writ Appendix Exh. T and Dr. James Tanley, Petitioner's Amended Memorandum Opposing Respondent's Motion for Summary Judgment, Exh. 1, Return of Writ Appendix Exh. L). Petitioner goes on to argue that defense counsel failed, as a result of their unpreparedness, to object to exhibits that were admitted during the mitigation phase, to object to improper remarks that the state made in closing arguments, and to object to certain jury instructions that the trial court gave prior to the sentencing deliberations.
As a result of counsel's failure to obtain a mitigation specialist, petitioner argues, the following mitigation evidence was not provided either to the psychologist who examined petitioner or to the jury during the sentencing hearing:
(A) Petitioner Bedford's most stable parent was his mother who was very generous. However, she was not good at setting or enforcing rules.
(B) Petitioner's father was an alcoholic who was often gone from the home. When he was home he would have frequent drinking parties for his friends. Petitioner's father also used other illegal drugs. His chemical abuse would often cause arguments in the Beford home.
(c)) Petitioner and his siblings attended several schools because the family often moved. The children often attended predominantly black schools and were frequently involved in fights. The siblings began to drink at a young age.
(D) Danny was frequently absent from school. Danny was small for his age and this caused him to be the butt of his classmates' jokes.
(E) Danny never learned to read or write. This fact has embarrassed him for his entire life.
(F) Petitioner's mother left his alcoholic father unannounced, causing his father to raise the six (6) children. Later Petitioner's mother returned from Florida, unannounced, forced Petitioner's father out of the house, and began to raise the children.
(G) Petitioner's mother gradually became ill and had difficulty managing the children. Petitioner's aunt Eunice helped raise the children until Petitioner's mother died of brain cancer. Eunice continued to raise the children after her death, but did not have adequate parenting skills.
(H) Danny was very much affected by his mother's death. Later in life, when he drank too much, he would cry about his mother's death.
(I) Eventually Danny and his brother began to drink with their father. Their father would treat his sons like brothers.
(J) Eventually, Danny's father was murdered by his girlfriend.
(K) Danny married at a young age and grew distant from his biological family. Danny and his wife eventually separated because of his drinking.
(L) After they separated, Danny would often return to his wife to attempt to convince her to take him back. Danny's drinking increased dramatically after she left.
(M) Danny drank every day for ten (10) years. He was a happy drunk, who did not fight or use weapons. He would often drink fifteen (15) to sixteen (16) hours a day.
(N) Danny's siblings have also experienced drug dependency problems, especially alcohol.
(O) Danny eventually began to date Gwen Toepfert, who was also a heavy drinker. Gwen would often use Danny and borrow money from him.
(P) Danny and Gwen would have frequent break-ups. Danny would get depressed, drink, and start to cry about Gwen.
(Q) Danny was obsessed with Gwen. He would go to his apartment after the bars closed and he would sit at his dining room table and stare at all of her pictures until he passed out. He would also often go to her apartment and stand outside the door until someone entered or exited the apartment.
®) Gwen would date Danny but also date other men. It appears that Gwen did not want Danny, but did not want anyone else to have Danny.
(S) The last two nights before the shooting Danny was eating speed like candy. He drank all day and ate speed to keep going. Danny stayed up all night eating speed.
(T) The night of the homicide, Danny played Russian Roulette with a gun in the bar where he worked.
(U) Danny cried most of that night. Danny said he loved Gwen and Gwen's father. Danny fell completely apart.
(W) At about 1:00 a.m., Danny closed the bar where he worked and went to the Savoy Bar. Danny had a vacant look as if he was looking through everyone.
(Pet. Merit Brief, doc. no. 133, at 12-14).
Petitioner goes on to argue that, had a mitigation-specific mental evaluation been conducted in light of the information above, a psychologist would have presented the following information to the jury:
(A) Danny's social history can be understood in terms of (1) loss; (2) depression; and (3) chemical dependency.
(B) Petitioner experienced disability losses at every stage of his life. Petitioner was unable to read or write while in school. According to Petitioner he felt like the "dumbest kid in the world." This illiteracy was to be a constant reminder to him throughout his life that he could not do as well as others.
(C) In addition, Petitioner was harassed by others when he was young because of Petitioner's small size. This gave him a sense of physical inadequacy.
(D) His father was an alcoholic and consequently was emotionally unavailable to him. His father eventually left the home when Petitioner was nine (9) years of age. Losses at this stage, middle childhood, are particularly distressing for boys who are seeking male figures with which to identify. Petitioner's mother maintained the household but was inconsistent providing limits.
(E) When Petitioner's mother died, Petitioner felt lost. His older brothers were married and gone and his younger brother was in a juvenile institution. He felt he had no one upon which to depend.
(F) Due to Petitioner's multiple losses and his lack of role models for resolving them, he developed self defeating methods for lessening the pain. He began to identify with his older brothers and deceased father who were heavy drinkers or alcoholics. At the age of fifteen (15) or sixteen (16), he was drinking regularly and using alcohol to dampen the intense feelings of depression and loss. At the age of twenty-one (21) he began using amphetamines ("speed").
(G) Petitioner married a young girl when he was sixteen (16) as he sought desperately to seek a life for himself. He always feared that someone would take her away from him. Eventually Petitioner's wife began to see other men including Petitioner's best friend, Dave Miller.
(H) Petitioner's problems with his marriage, his inability to hold a job, and his illiteracy caused him to increase his consumption of alcohol. Ironically, this temporary relief of drinking ultimately caused him to lose his jobs and wife.
(I) Petitioner used massive denial and utilization of others whom he loved. He could not learn to accept mixed feelings about others because of his fear of losing relationships. He would deny the obvious in relationships. When he eventually realized that he was to lose his wife, June, he could no longer control his fears with denial. He then alternated between episodes of depression, begging her to return, and intimidation and threats particularly when he was drunk.
(J) Petitioner's relationship with Gwen Toepfert resumed all of the old conflicts concerning loss. Ms. Toepfert even looked like his former wife. Both drank heavily and used drugs. When intoxicated, she would get into fights, moon patrons in the bar, or "pick up" men right in front of Petitioner. As in the past, he denied this behavior and rationalized that Ms. Toepfert was a vulnerable person when intoxicated. He was afraid of losing her, so he would not confront her.
(K) On the night in question, Petitioner was drunk. He permitted customers to fix their own drinks. Petitioner was suicidal and played Russian Roulette. Jackie Schmidt eventually helped take the gun away from him. He asked her to get him drunk. This was his method of shutting off powerful feelings which he could not control. At that point, he was both suicidal and homicidal. He was having thoughts of killing Gwen and Mr. Smith, but he was also having thoughts of scaring away John Smith. Danny was attempting to find ways to keep control over his feelings. It was consistent for him to feel that if he could scare Mr. Smith off, he could regain his relationship with Gwen, a relationship that had been restored after similar disruptions in the past. It would also be consistent with his feelings of inadequacy, and his physically deteriorated condition, (because of his consumption of alcohol and drugs, his weight had decreased to one hundred twenty (120) pounds) for him to feel that he could not physically stand up to Mr. Smith and for him to take a weapon to make Mr. Smith listen to him.
(L) When Mr. Smith came to the door, Petitioner Bedford recalls him saying "look at this little SOB." That statement probably captured how Petitioner Bedford was feeling about himself, his profound feelings of inadequacy and vulnerability. What occurred after the initial shots was the unleashing of uncontrolled rage at that point, a rage that Danny had never confronted and tried in all the dysfunctional ways outlined above to avoid.
(M) In Tennessee according to Jimmy Joe Pennington, Petitioner continued to be suicidal. Petitioner Bedford was suicidal both before and after the crimes. In the hours leading up to the crimes was both suicidal and homicidal, struggling to control his homicidal impulses via his usual maladaptive methods, but previously effective methods of getting drunk and being with others.
(Pet. Merit Brief, doc. no. 133, at 14-16).
Petitioner argues that his counsel failed to present a meaningful mitigation case. In addition to the deficiencies identified above, petitioner points out that no family members testified. Only petitioner — who gave an unsworn statement — Dr. Schmidtgoessling, Jackie Schmidt and her mother Gloria Schmidt testified for the defense. His counsel emphasized Bedford's long history of alcoholism but had only one witness to his alcoholism, June Stidman Miller, Bedford's ex-wife. She was not under subpoena, and Miller walked away from the courthouse without testifying. Further, because of the failure to communicate with Dr. Schmidtgoessling, defense counsel did not learn that additional testing for organic brain damage was indicated based on initial test results. (Am. Postconviction Petition Exh. 17, Return of Writ Exh. T.).
In response to petitioner's arguments of ineffective assistance of counsel, respondent argues that petitioner's attorneys took reasonable steps to prepare for the mitigation phase and, as a result, presented a considerable amount of potentially mitigating evidence. Respondent insists that the affidavits and exhibits submitted by petitioner in support of his state postconviction proceedings failed to demonstrate either that defense counsel were derelict in their duty to investigate and prepare for the mitigation phase, or that there is a reasonable probability that the result of the sentencing proceedings would have been different had defense counsel taken all of the steps that petitioner argues reasonable trial attorneys would have taken.
In affidavits submitted by the state during petitioner's postconviction proceedings, petitioner's defense attorneys stated that their mitigation plan had been formulated in advance of trial, (Doc. No. 81, Exh. JJ, Affidavits in Support of State's Motion for Summary Judgment, Affidavit of Daniel J. Breyer), and there is evidence in the record to support counsel's contention that they had begun preparing for the mitigation phase before the trial began. At a pretrial hearing on July 27, 1984, defense counsel urged the trial court to grant their motion for a psychological examination of petitioner because defense counsel were already preparing for the mitigation phase. (Tr. 07/27/84, at 38-39). Later, during voir dire proceedings, defense counsel objected to limitations placed by the trial court on their ability to question prospective jurors about the various mitigation factors defense counsel would seek to establish. (Tr. 10/24/84, at 381-82).
During petitioner's mitigation hearing, defense counsel presented evidence detailing petitioner's tragic upbringing, petitioner's illiteracy, the break-up of petitioner's marriage and petitioner's struggles to raise and maintain contact with his children, petitioner's dependency on and abuse of alcohol, petitioner's deep longing for a sense of family, petitioner's dependency on Gwen Toepfert and the on-again, off-again nature of their relationship, and petitioner's lack of history of violent or aggressive behavior. Jackie Schmidt, a former girlfriend and close acquaintance, spent several hours with petitioner on the night before the offenses when petitioner called her from Doyle's, the bar where he worked. She testified that petitioner was drinking heavily, playing Russian Roulette with a gun from behind the bar, and crying about the state of his relationship with Gwen Toepfert. (Mit.Tr., at 27-30). Ms. Schmidt also testified that, as despondent as petitioner was, he never evidenced any hostility towards Gwen. Ms. Schmidt and her mother, Gloria Schmidt, both testified that petitioner seemed to crave a family. ( Id. at 22-23, 35).
Dr. Schmidtgoessling testified on behalf of petitioner, having evaluated petitioner on two different days and having administered several tests. Specifically, Dr. Schmidtgoessling testified that petitioner was depressed and agitated, and suffered from a borderline personality disorder characterized by an inability to sustain himself emotionally, a tendency to be highly dependent on others, and an extreme sensitivity to disruptions in his personal relationships. ( Id. at 49-51). Dr. Schmidtgoessling also explained that a love relationship that fluctuated between affection and rejection would represent a point of crisis for petitioner, and that his abuse of and dependency on alcohol would only exacerbate the situation. ( Id. at 51-53). Dr. Schmidtgoessling went on to testify that petitioner was one of the most treatable inmates she had ever seen. ( Id. at 53). Dr. Schmidtgoessling admitted on cross examination that petitioner showed no signs of a psychotic disorder, that petitioner's chronic depression was not so severe as to constitute a mental illness, and that although petitioner was substantially impaired at the time of the murders due to his personality disorder and heavy consumption of alcohol, he was not incapable of appreciating the wrongfulness of his conduct or conforming his conduct accordingly. ( Id. at 57-60).
Petitioner Bedford also gave unsworn testimony detailing his marriage at an early age, the six children he had, and the break-up of his marriage. ( Id. at 73-75). He recounted the stabbing death of his father and his mother's death from cancer. ( Id. at 69-72). Bedford stated that he began drinking heavily when he was eighteen or nineteen years old. ( Id. at 82). Finally, after briefly answering questions about the events leading up to the incident itself, petitioner expressed remorse for what he had done. ( Id. at 91). Seizing upon the evidence and testimony presented during the mitigation phase, defense counsel made viable arguments in support of virtually every statutory mitigating factor. (Mit.Tr., at 108-116). It bears reminding that the jury was also presented with a presentence investigation report, and, while petitioner complains that the report contained inadmissible evidence and was prepared by probation authorities untrained in the skill of mitigation, that report also contained information about petitioner's family, education, and employment background.
The state courts considered and rejected petitioner's allegation of ineffective assistance of counsel. The trial court, in its findings of fact and conclusions of law, considered each of the exhibits submitted in support, and found that the proposed testimony set forth in those exhibits was cumulative, damaging, or deemed unnecessary by defense counsel as a matter of mitigation strategy. (Findings of Fact and Conclusions of Law, Exh.MM, doc. no. 81). The trial court concluded that defense counsel had not violated their essential duty to petitioner as to any of the witnesses they presented or any of the witnesses they elected not to call. The appellate court agreed with the trial court's determinations, concluding that petitioner's family member affidavits presented cumulative information, that the decision by defense counsel not to subpoena petitioner's ex-wife and the manner in which expert testimony was presented were reasonable tactical decisions, and that objections to certain prosecutorial remarks and jury instructions complained of by petitioner simply were not warranted. (Decision, Exh.RR, doc. no. 81).
The question before the Court is whether petitioner's trial attorneys performed unreasonably and to petitioner's prejudice in failing to subpoena certain family members to testify, failing to request a mitigation-specific mental examination of petitioner or otherwise prepare more adequately for Dr. Schmidtgoessling's mitigation testimony, and failing to request a mitigation specialist to conduct a comprehensive investigation into petitioner's background and character. For the following reasons, the Court finds that counsel did not perform deficiently and to petitioner's prejudice, and accordingly, the Court finds petitioner's claims to be without merit.
The right to counsel guaranteed by the Sixth Amendment is the right to the effective assistance of counsel. McMann v. Richardson, 397 U.S. 759, 771 n. 14 (1970). The importance of competent representation during the penalty phase of a capital trial cannot be understated, especially with respect to the duty to investigate, because, as a practical matter, all that stands between a defendant who has been convicted of capital murder and a death sentence is whatever mitigation evidence he can muster. Mapes v. Coyle, supra, 171 F.3d at 426.
Under the Ohio statute, a capital defendant found guilty of a death specification has to present some mitigating evidence in order to avoid the death penalty. If a jury has nothing to weigh against the aggravating circumstance, it almost certainly must find that the aggravating circumstance outweighs the (nonexistent) mitigating circumstances, and recommend death.Id. The Sixth Circuit expanded on counsel's duty to investigate in connection with the mitigation phase of a capital trial, adding that "[t]he sole source of mitigating factors cannot properly be that information which defendant may volunteer; counsel must make some effort at independent investigation in order to make a reasoned, informed decision as to their utility." Carter v. Bell, 218 F.3d at 596. The Sixth Circuit has held that "failure to investigate possible mitigating factors and failure to present mitigating evidence at sentencing can constitute ineffective assistance of counsel under the Sixth Amendment." Martin v. Mitchell, 280 F.3d 594, 612 (6th Cir. 2002) (emphasis in original) (citing Carter v. Bell, 218 F.3d at 600, and Skaggs v. Parker, 235 F.3d 261, 271 (6th Cir. 2000)).
Although failure to investigate possible mitigating evidence can constitute ineffective assistance, there appears to be an important distinction in the Sixth Circuit between those cases in which no investigation was conducted and those in which petitioner complains that not enough investigation was conducted. In Campbell v. Coyle, 260 F.3d 531 (6th Cir. 2001), the Sixth Circuit explained:
[W]e note that the cases where this Court has granted the writ for failure of counsel to investigate potential mitigating evidence have been limited to those situations in which defense counsel have totally failed to conduct such an investigation. In contrast, if a habeas claim does not involve a failure to investigate but, rather, petitioner's dissatisfaction with the degree of his attorney's investigation, the presumption of reasonableness imposed by Strickland will be hard to overcome.Id. at 552. Where counsel essentially conducts no investigation and presents no mitigating evidence, his performance can amount to constructive denial of counsel and prejudice will be presumed. Rickman v. Bell, 131 F.3d 1150, 1157 (6th Cir. 1997), cert. denied, 523 U.S. 1133 (1998). Where, on the other hand, counsel performs something of an investigation, and presents something in the form of mitigation, then the petitioner will be required to demonstrate not only that his attorney's performance was deficient, but also that counsel's deficient performance prejudiced the outcome of the petitioner's sentencing proceeding. Martin, supra, 280 F.3d at 613.
In the instant case, petitioner's trial attorneys went into the mitigation hearing with a discernable mitigation strategy devised in advance of trial, and they presented testimony and evidence calculated to implement that strategy. Attorney Breyer stated in his affidavit that, "The mitigation plan was formulated in advance of trial. The plan was to have defendant tell the pitiful story of his life, to verify that story as much as possible under the constraints placed on the defense, and to highlight the most positive features of Dr. Schmidtgoessling's opinion, Defendant Bedford's treatability." (Affidavits in support of state's motion for summary judgment, Exh. JJ, doc. no. 81, Affidavit of Daniel J. Breyer). Through Gloria Schmidt, Jackie Schmidt, Dr. Schmidtgoessling, and Petitioner Bedford himself, defense counsel elicited testimony that reasonably advanced that strategy.
Petitioner faults defense counsel in part for failing to interview and call certain members of petitioner's own family. Petitioner also argues that defense counsel were ineffective for failing to subpoena petitioner's ex-wife, June Stidham Miller, who left the courtroom on the day she was to testify because she had to go grocery shopping. Failing to call appropriate mitigation witnesses can amount to ineffective assistance, especially "where the character witnesses had evidence to offer and where it was not a reasonable tactical decision to refuse to call them." McQueen v. Scroggy, 99 F.3d 1302, 1313 (6th Cir. 1996) (citing Kenley v. Armontrout, 937 F.2d 1298, 1304-09 (8th Cir. 1991)). In determining whether a particular act or omission on the part of counsel was outside the wide range of professional norms, this Court must accord a high measure of deference to counsel's decisions. Strickland, 466 U.S. at 681; see also White v. McAninch, 235 F.3d 988, 994-95 (6th Cir. 2000). Of course, a "strategic" or "tactical" decision is not automatically insulated from review if it does not appear that the decision was supported by sufficient investigation:
The determination as to whether counsel's trial strategy amounts to ineffective assistance of counsel should be made with respect to the thoroughness of the pretrial investigation that counsel conducted. The more thorough the investigation, the more deference the trial strategy receives, while strategic decisions made after incomplete investigation receive less. . . ."White v. McAninch, 235 F.3d at 995-96 (citing Strickland, 466 U.S. at 690-91).
Petitioner's attorneys stated in their postconviction affidavits that, although they had originally lined up June Stidham Miller to be the primary witness regarding petitioner's abuse of alcohol, they ultimately concluded that she would have been an untrustworthy witness, after she elected to leave the courtroom on the day she was scheduled to testify because she had to go grocery shopping. (Affidavits in support of state's motion for summary judgment, Exh.JJ, doc. no. 81, Affidavits of William Whalen, Anne Flannagan, and Daniel Breyer). They were also reluctant to put her on the stand because of her inclination to mention that petitioner had been abusive towards her and had attempted, at times, to intimidate her into staying with him. ( Id., Affidavits of William Whalen and Daniel Breyer). The Sixth Circuit has recognized that it is often sound trial strategy for counsel to opt not to call a witness whose testimony would have a "double edge" or would do "more harm than good." Carter v. Mitchell, 443 F.3d 517 (6th Cir. 2006) (finding that "it is `not even deficient performance, let alone prejudicial,' for trial counsel to fail to introduce evidence of a defendant's background that `would likely [make] him look even worse to the jury'") (citing Moore v. Parker, 425 F.3d 250, 254 (6th Cir. 2005)). In any event, there were plenty of witnesses, including petitioner himself, who provided vivid testimony about petitioner's abuse of and dependency on alcohol. According to defense counsel, many of petitioner's friends were left off defense counsel's witness list because of defense counsel's conclusion that their testimony had the potential to be damaging. ( Id., Affidavits of William Whalen, Anne Flannagan, and Daniel Breyer). Beyond his ex-wife, petitioner fails to identify which of his friends defense counsel should have called and what testimony those friends would have offered. That being so, there are no allegations or evidence upon which to question defense counsel's actions in this regard.
Defense counsel's decision not to call petitioner's family members was partially tactical, but was also partially out of respect for petitioner's own wishes. According to defense counsel, petitioner did not want his family members involved. (Affidavits in support of state's motion for summary judgment, Exh. JJ, doc. no. 81, Affidavits of Anne Flannagan and Daniel Breyer). An attorney is not ineffective for abiding by a client's wishes, so long as counsel does not wholly abdicate essential duties in doing so. See, e.g. Campbell v. Kincheloe, 829 F.2d 1453, 1463 (9th Cir. 1987) (counsel not ineffective for failing to call family members where defendant specifically requested counsel not contact his family). But see Blanco v. Singletary, 943 F.2d 1477, 1501-02 (11th Cir. 1991) (counsel ineffective where decision not to call certain witnesses was result not of investigation but of eagerness to "latch on" to defendant's statements that he did not want those witnesses to be called).
In this case, counsel's failure to call the various family members identified by petitioner cannot be deemed ineffective. Counsel's decision was not made without the benefit of investigation, and a comparison between the affidavits submitted by petitioner in state postconviction and the mitigation record reveals that the testimony petitioner's family members would have provided was either cumulative, damaging, or of marginal value. (Exhibits to the Petition to Vacate, Exh. S, doc. no. 81: exhibits 1, 2, 6, 10, 16, 20, 21, 29, and 32).
Petitioner also argues that his defense attorneys were ineffective for failing to ask Dr. Schmidtgoessling to conduct a mitigation-specific mental evaluation of petitioner or to discuss Dr. Schmidtgoessling's mitigation testimony before she took the stand. Additionally, petitioner claims that Dr. Schmidtgoessling misread the results of the Trails A B Tests. According to petitioner, those results actually indicated that petitioner suffered from a neurological impairment and demonstrated the need for further testing by a neurologist. Pointing to evaluations conducted by mental health experts in connection with his state postconviction proceedings, petitioner argues that he was mentally ill and that counsel's reliance on Dr. Schmidtgoessling's flawed assessment resulted in counsel not obtaining a neurologist to uncover and present evidence explaining petitioner's organic brain impairment. Petitioner argues that if evidence of his brain impairment had been presented to the jury, the jury would have learned that petitioner experienced difficulty coping with his relationship problems with Gwen Toepfert and that on the night of the crime, petitioner's cognitive processing ability to develop the appropriate responses to the situation would have been significantly impaired given his brain function impairment, his excessive alcohol usage and his emotional state. (Pet. Merit Brief, doc. no. 133, at 17).
In this regard, petitioner likens his case to that of Williams v. Taylor, 529 U.S. 362 (2000). In Williams, the United States Supreme Court held that trial counsel were ineffective during mitigation because counsel failed to discover and offer information about Williams' diagnosed mental state. Specifically, the Supreme Court found that trial counsel failed to conduct an investigation that would have uncovered extensive records graphically describing Williams' nightmarish childhood, that he was neglected and abused during his early childhood, that he was borderline mentally retarded and did not advance beyond the sixth grade in school, that he had suffered repeated head injuries, and that he possibly had an organic mental impairment. Williams, 529 U.S. at 370-371. In addition, counsel failed to return the phone call of a potential mitigating witness. Id.
Unlike the complete lack of preparation evidenced in Williams, Bedford's counsel did investigate his background and did ensure that Bedford was examined by a mental health expert. Pretrial mental evaluation reports submitted by Dr. Nancy Schmidtgoessling, Dr. Donna Winter, and Dr. Steven Beck stated that petitioner showed no signs of mental illness, psychosis, or organic brain damage. Defense counsel had no reason to question those opinions; attorneys are not mental health experts and cannot be expected to second-guess the opinions and conclusions rendered by such. Based on the presumption of competency that defense counsel enjoy under Strickland, as well as the record, it is reasonable to presume that counsel's decision not to seek yet another expert stemmed not from neglect or laziness, but from a reasonable decision, based on the conclusions of the three doctors who had examined petitioner prior to trial, that the well was dry. See Jermyn v. Horn, 266 F.3d 257, 301-302 (3rd Cir. 2001) (finding that counsel's decision not to seek another mental health evaluation was reasonable based on contents of report finding that defendant was competent); Wilson v. Greene, 155 F.3d 396, 403 (4th Cir. 1998) (counsel not required to second-guess content of reports concluding that defendant was not mentally ill at time of the offense), cert. denied, Wilson v. Taylor, 525 U.S. 1012 (1998). To the extent that petitioner is suggesting that defense counsel have a duty to shop for an expert who will say exactly and only what counsel want the expert to say, that argument finds no support in case law and the Court squarely rejects it. See Dowthitt v. Johnson, 230 F.3d 733, 748 (5th Cir. 2000) ("Under the circumstances, trial counsel was not deficient by not canvassing the field to find a more favorable defense expert."), cert. denied, 532 U.S. 915 (2001); Fleenor v. Farley, 47 F.Supp.2d 1021, 1047 (S.D. Indiana 1998) ("Fleenor's lawyers undertook a substantial effort to develop defenses based on Fleenor's mental condition, and the results were not promising. In not drilling more deeply in that well, they did not fail to provide effective assistance of counsel."), aff'd, Fleenor v. Anderson, 171 F.3d 1096 (7th Cir. 1999), cert. denied, 528 U.S. 891 (1999).
Having concluded, based on the opinions offered by three different mental health experts, that petitioner suffered from no mental disease or defect, defense counsel elected as a matter of strategy not to emphasize a nexus between alleged mental deficiencies on petitioner's part and petitioner's commission of the offenses. Defense counsel explained in their postconviction affidavits that, in their experiences, jurors tend to view psychiatric or psychological testimony with a skeptical eye. For that reason, defense counsel explained, they decided to downplay any aspect of Dr. Schmidtgoessling's mitigation testimony that might seek to connect petitioner's mental deficiencies or personality disorders to his commission of the offense, and to emphasize more favorable aspects of her testimony, such as her opinion that petitioner was one of the most treatable inmates she had ever seen. (Affidavits in support of state's motion for summary judgment, Exh. JJ to doc. no. 81, Affidavits of William Whalen, Anne Flannagan, and Daniel Breyer). Attorney Breyer went on to explain that the testimony of Dr. Winter was deliberately offered during the guilt phase, instead of the mitigation phase, in an attempt to distance Dr. Winter's known opposition to the death penalty from the jury's sentencing determination. ( Id., Affidavit of Daniel Breyer). Accordingly, the Court finds that the decisions made by Bedford's counsel as to the manner in which to present Dr. Schmidtgoessling's mitigation testimony, as well as Dr. Winter's testimony, were deliberate, tactical, and more than reasonable.
The Court is mindful that during state postconviction proceedings, petitioner submitted an affidavit by Dr. Thomas Heiskell questioning the conclusions reached by Drs. Schmidtgoessling, Winter, and Beck, and opining that petitioner was mentally ill. (Exhibits to the Petition to Vacate, Exh. S, doc. no. 81, Exh. 25 (Affidavit of Dr. Thomas L. Heiskell)). But the most that Dr. Heiskell's affidavit establishes is that, had counsel "canvass[ed] the field to find a more favorable defense expert," Dowthitt, supra, 230 F.3d at 749, petitioner's sentencing hearing would have been reduced to a forum of dueling experts. Dr. Heiskell's affidavit does not undermine the evidence establishing that counsel in this case took reasonable steps in investigating the possibility that petitioner suffered from some sort of mental illness or psychosis. All three experts who evaluated petitioner agreed that petitioner was experiencing extreme depression and evidenced signs of borderline personality disorder; but none of the experts found evidence of mental disease or defect. It cannot be said that counsel were unreasonable, therefore, in declining to ask Dr. Schmidtgoessling to perform a mitigation-specific mental evaluation or to obtain yet another mental health expert. As noted supra, counsel is not ineffective for failing to shop around for an expert who was willing to testify that petitioner was mentally ill. See, e.g., Poyner v. Murray, 964 F.2d 1404, 1419 (4th Cir. 1992) ("The mere fact that counsel did not shop around for a psychiatrist willing to testify to the presence of more elaborate or grave psychological disorders simply does not constitute ineffectiveness."), cert. denied, 506 U.S. 958 (1992); Dees v. Caspiri, 904 F.2d 452, 454 (8th Cir. 1990) (per curiam) ("[W]e have never suggested [that] counsel must continue looking for experts just because the one he has consulted gave an unfavorable opinion."), cert. denied, 498 U.S. 970 (1990).
Petitioner also argues that his attorneys were ineffective for failing to meet with Dr. Schmidtgoessling prior to her mitigation testimony, or to otherwise more adequately prepare her to testify. The record contains conflicting allegations in this regard. Attorneys Whalen and Breyer stated in their postconviction affidavits that they did meet with Dr. Schmidtgoessling prior to the mitigation hearing, and that it was during that meeting that Dr. Schmidtgoessling expressed her opinion that petitioner was one of the most treatable inmates she had ever seen — an opinion which was not set forth in Dr. Schmidtgoessling's report. (Affidavits in support of state's motion for summary judgment, Exh. JJ to doc. no. 81: Affidavits of William Whalen and Daniel Breyer). Dr. Schmidtgoessling stated in her postconviction affidavit that, "[t]o the best of my recollection, however, the attorneys for Mr. Bedford never reviewed nor discussed my mitigation testimony with me." (Exhibits to the Petition to Vacate, Exh. S, doc. no. 81: Exh. 22). It is not necessary for the Court to resolve these conflicting statements, because petitioner still cannot demonstrate either that his attorneys performed deficiently or that he was prejudiced by their performance.
Although the better practice would be for counsel to meet with their mitigation witnesses prior to putting them on the stand — and the Court is not prepared to find that defense counsel failed to meet with Dr. Schmidtgoessling prior to her mitigation testimony — a review of the mitigation transcript demonstrates that defense counsel were more than prepared with respect to Dr. Schmidtgoessling's testimony. Defense counsel were obviously well-versed in the information that Dr. Schmidtgoessling had to offer, never appeared to be caught off guard by anything that was brought out during cross examination, and managed to elicit favorable mitigation testimony from Dr. Schmidtgoessling on petitioner's behalf. Further, defense counsel stated in their postconviction affidavits that Dr. Schmidtgoessling never indicated to them, upon learning that she would be called to testify at petitioner's mitigation hearing, that she needed more time or information. There is nothing in Dr. Schmidtgoessling's postconviction affidavit suggesting otherwise. Thus, even assuming petitioner could establish that defense counsel did not meet with Dr. Schmidtgoessling prior to her mitigation testimony — a fact that it is not definitively established based by the record as it stands — petitioner has not demonstrated that defense counsel were unprepared, or otherwise performed deficiently, with respect to Dr. Schmidtgoessling's testimony.
Moreover, petitioner has not demonstrated prejudice. Prejudice exists, within the meaning of Strickland, when petitioner can show a reasonable probability that the outcome would have been different, but for counsel's deficient performance. Dr. Schmidtgoessling was vague, at best, regarding what more she could have offered in the way of mitigation testimony had she been given additional time, a more comprehensive social history, or the benefit of a mitigation-specific evaluation of petitioner. Dr. Schmidtgoessling stated only that a mitigation examination, as opposed to an insanity examination, is much more comprehensive, is focused more on environmental and psychological factors that may have contributed to the offenses that were committed, and involves an extensive social history. (Exhibits to the Petition to Vacate, Exh. S, doc. no. 81: Exh. 22).
As noted throughout this Opinion and Order, Dr. Schmidtgoessling does not appear to have been lacking in information or opinions about petitioner, and consequently, Dr. Schmidtgoessling offered some meaningful mitigation testimony. For instance, Dr. Schmidtgoessling explained how petitioner's sorrowful childhood and borderline personality disorder combined to make him excessively dependent on women and highly sensitive to fluctuations in a love relationship, as well as how his abuse of alcohol would heighten the intensity of his emotions. (Mit.Tr., at 50-53). Thus, Dr. Schmidtgoessling painted a picture of a man who had killed not in a calculated manner, but in the throes of passion and emotions he was not equipped to process. Dr. Schmidtgoessling also testified, as noted supra, that petitioner was one of the most treatable inmates she had ever seen. (Mit.Tr., at 53). Thus, the Court is not persuaded that trial counsel performed deficiently or to petitioner's prejudice with respect to the presentation of Dr. Schmidtgoessling's testimony at the mitigation hearing.
Finally, petitioner argues that his trial attorneys were ineffective for failing to obtain a social worker or mitigation specialist to conduct a more thorough investigation into his history, character and background, and prepare a comprehensive social history. With respect to counsel's duty to investigate the history and background of an accused, petitioner cites Glenn v. Tate, 71 F.3d 1204, 1207 (6th Cir. 1996). In Glenn, the Sixth Circuit held that counsel's failure to provide virtually any information on the character and background of an accused, as well as evidence of organic brain damage, was constitutional error. The Sixth Circuit characterized counsel's lack of preparation and failure to investigate as follows:
The reason for the paucity of mitigation evidence, as we have said, was lack of preparation on the part of Glenn's lawyers. The lawyers made no systematic effort to acquaint themselves with their client's social history. They never spoke to any of his numerous brothers and sisters. They never examined his school records. They never examined his medical records (including an emergency room record prepared after he collapsed in court one day) or records of mental health counseling they knew he had received. They never talked to his probation officer or examined the probation officer's records. And although they arranged for tests, some months before the start of the trial, to determine whether he was competent to stand trial, they waited until after he had been found guilty before taking their first step — or misstep, as we shall explain presently-toward arranging for expert witnesses who might have presented mitigating evidence on John Glenn's impaired brain function.Id. at 1208.
In analyzing counsel's investigation into Bedford's background, the Court is mindful that there is no constitutional requirement or rule of practice requiring attorneys in capital cases to utilize a mitigation specialist or investigator. Unlike Glenn, a review of the record in this case reveals that counsel took adequate steps to investigate petitioner's family, social, education, employment, and psychological history. As a result, a great deal of information about petitioner's past, the manner in which his past shaped his life, and his experiences leading up to the offenses was presented during the mitigation hearing from witnesses such as Jackie Scmidt, an ex-girlfriend and close acquaintance, and petitioner himself. Beyond what family members would have testified to and what additional psychological evidence could have been presented — petitioner's family members were not called because petitioner did not want them involved, and additional psychological evidence was not presented because counsel decided as a matter of strategy that it was of marginal value and might alienate the jury — petitioner has failed to demonstrate what prejudice he suffered as a result of counsel's failure to utilize a mitigation specialist or investigator. That is, petitioner has failed to demonstrate that, had his attorneys utilized a mitigation specialist to compile and present a more comprehensive social history, there is a reasonable probability that the result of his mitigation hearing would have been different.
The most that petitioner has alleged, much less demonstrated, is that his trial attorneys could have done more, which will almost always be the case. Mason v. Mitchell, supra, 320 F.3d at 618 ("Although attorneys can always do more in preparation for a trial, we cannot conclude that Mason's attorneys did not prepare enough."). Unlike the petitioner in Glenn, Bedford has not demonstrated that his trial attorneys abandoned or even neglected their duty to investigate. As respondent suggests, this is not a case where absolutely no evidence was presented, and no argument was made, to persuade the jury to spare petitioner's life. A review of the mitigation transcript reveals that the jury was well aware of the personal tragedies that petitioner had endured in childhood and adulthood, petitioner's illiteracy, petitioner's long history of abusing alcohol, and petitioner's lack of history of abusive or violent behavior. Thus, the record does not support petitioner's allegation that his defense attorneys either failed to conduct an adequate factual investigation or performed unreasonably in failing to request their own mitigation specialist. Moreover, petitioner has failed to demonstrate that he was prejudiced by his attorneys' performance in this regard.
Having considered petitioner's claims of ineffective assistance of counsel during mitigation, the Court finds that each of petitioner's claims are without merit. Accordingly, the Court denies petitioner's fourth, fifth and sixth grounds for relief.
2. Ineffective Assistance of Counsel During the Guilt Phase Fifty-Sixth Ground for Relief — Petitioner was denied his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments when he was denied the effective assistance of counsel in the guilt phase of his capital trial.
In his fifty-sixth ground for relief, petitioner raises several allegations of ineffective assistance of trial counsel during the guilt phase of his trial. Specifically, petitioner argues that his trial attorneys failed to thoroughly investigate the facts of his case, failed to file all applicable motions to suppress, were ineffective during voir dire, failed to properly cross-examine witnesses, failed to insure that all proceedings were recorded, failed to object to portions of the prosecutor's closing argument and certain portions of the jury instructions, and improperly adduced mitigation testimony that was not helpful in the guilt phase, thereby reducing its impact for mitigation. In his final merit brief, petitioner also argues that his counsel were ineffective for failing to obtain an independent pathologist to review the autopsies and for failing to obtain a defense fingerprint expert. The Court will now address petitioner's allegations of guilt phase ineffective assistance of counsel.
First, petitioner argues that his counsel were ineffective because they failed to thoroughly investigate the facts of his case and file all potential pretrial motions to suppress statements. According to petitioner, he stated that he did not want to make a statement when first advised of his rights by the arresting officers in Tennessee, but his counsel did not know that he had exercised his right to remain silent because they could not, and did not, interview the arresting officers prior to trial. Additionally, petitioner alleges that his counsel were ineffective for failing to challenge his understanding of his Miranda rights due to his limited cognitive ability, the amount of alcohol that he had consumed prior to the interview, and the fact that he was exhausted.
Petitioner made two statements while in Tennessee. The first was a statement given to Sherman Fetterman, a criminal investigator for the Attorney General of Tennessee, and the second statement was given to a Cincinnati police officer. ( Id. at 78). Prior to trial, petitioner's counsel filed a motion to suppress his statement to the Tennessee authorities, alleging that probable cause did not exist for petitioner's arrest. On July 13, 1984, the trial court held a hearing on petitioner's motion. At that hearing, defense counsel called one witness and the state of Ohio called two. (Suppression Hrg. Trans. at 50-107). The witnesses were questioned extensively about the statements that petitioner made, the probable cause that existed for his arrest, the circumstances surrounding the reading of petitioner's rights, and the procedures that were used to take petitioner's statement.
At the suppression hearing, Deputy John Judy testified that he was called to the home of Jimmy Joe Pennington. When he arrived, petitioner told Deputy Judy that he had "killed two people in Cincinnati earlier in the day." ( Id. at 94). Deputy Judy escorted petitioner to his patrol car and read petitioner his Miranda rights. ( Id.). Deputy Judy testified at the suppression hearing:
I read him the rights and asked him if he understood them fully, and he said yeah, and I asked him if he wanted to give a statement at that time, and he just hung his head,
and I said `well, it can wait for a few more minutes,' and went straight to the jail house.
(Tr. Trans. p. 95). Deputy Judy testified that petitioner was not free to leave once he had informed the officers that he had killed two people. ( Id.).
Sherman Fetterman testified at the suppression hearing that he spoke briefly with petitioner shortly after petitioner arrived at the Scott County Jail in order to assess petitioner's state of mind prior to questioning him. ( Id. at 58). During this initial conversation, Fetterman became aware that petitioner could not read or write very well. Fetterman testified that he took additional time to read petitioner his Miranda rights and made sure that petitioner understood them. ( Id. at 63). Fetterman wrote down what petitioner told him, in narrative form, because petitioner could not prepare a written statement of the crime himself. ( Id. 65-66). Fetterman read the statement to petitioner, in the presence of Deputy Judy, and asked petitioner if he wanted to make any changes. Fetterman testified that he made one change at petitioner's request and petitioner signed the statement.
Defense counsel argued at the suppression hearing that probable cause did not exist to arrest petitioner, and therefore, any statements that petitioner made as a result of the illegal arrest should be suppressed. The trial court denied petitioner's motion, finding that the arresting officers had probable cause to arrest petitioner. Counsel did not challenge petitioner's statements on any other basis.
Petitioner argues that his lawyers were ineffective because they should have argued that petitioner asserted his Miranda rights after Deputy Judy read his rights to him. During petitioner's state post-conviction proceedings, counsel for petitioner obtained an affidavit from Deputy Judy. Judy's affidavit conflicts with his trial testimony. In the affidavit, which was obtained more than five years after petitioner's arrest, Judy states that when he took petitioner into custody and read him his Miranda rights, petitioner "said no at that time he did not want to make a statement." (Affidavit of John Judy, Exh. 41 Post-Conviction Petition; Pet.'s brief on confession issues, p. 3).
This Court permitted discovery on the confession issues, and petitioner obtained depositions from Sherman Fetterman and John Judy. During his deposition, John Judy testified that petitioner did not say anything after he was read his rights. Judy testified "the best I remember," petitioner's response was "nodding of the head." (Deposition of John Judy, p. 15).
After reviewing the record, the Court finds that petitioner cannot establish that his counsel's performance was deficient with respect to the motion to suppress. Had counsel moved to suppress petitioner's statements under Miranda, counsel would not have had any evidence to present in support of the motion. Attorney Daniel Breyer, one of petitioner's trial attorneys, submitted an affidavit during the state post-conviction proceedings stating that petitioner failed to articulate any other grounds for suppressing his statements. Specifically, the Affidavit of Attorney Breyer states:
I carefully reviewed with defendant the events surrounding his arrest and confession. Defendant stated that he totally cooperated with the Scott County, Tennessee, Sheriff's Department and reported no overreaching or violation of rights by the deputies. The motion to suppress was filed based upon our interviews of the defendant.
(Exh. II to State's Motion for Summary Judgment, Affidavit of Daniel Breyer). Moreover, the testimony at the suppression hearing did not reveal any additional grounds upon which counsel could have challenged petitioner's statements. At the suppression hearing, Deputy Judy testified that petitioner "hung his head" and "did not say anything" when asked if he wanted to make a statement. A few months later, at petitioner's trial, Deputy Judy testified that when asked if he wanted to make a statement, petitioner "may have said no, but I don't really recall. I don't think he said anything." (Tr. Trans. p. 1241). With respect to the reading of petitioner's Miranda rights, Fetterman testified that he "went over it slowly, and I made an effort beyond just saying you got a right to remain silent. I wanted to make sure he knew he didn't have to tell me anything." (Tr. Trans. p. 59). Fetterman also testified "I made some greater effort than I ordinarily do to make sure he understood that he had a right to remain silent." ( Id. at 63).
The Court also finds that there is no reasonable probability that counsel's performance, even if it was deficient in some respect, altered the outcome of petitioner's trial and resulted in prejudice to petitioner. In order to find a reasonable probability that the outcome of the trial was altered by counsel's performance, the Court "must first conclude there was a reasonable probability that a motion to suppress . . . would have been successful." Koras v. Robinson, 123 Fed.Appx. 207 (6th Cir. 2005). There was simply no evidence in 1985, from petitioner or the arresting officers, that petitioner had invoked his right to remain silent.
The affidavit of John Judy does not establish that petitioner's counsel were ineffective for failing to argue that petitioner invoked his right to remain silent. During his subsequent deposition, Judy stated that his testimony at trial was his best recollection of the events surrounding petitioner's arrest. (Deposition of John Judy, p. 15, Exh. D to Pet.'s Brief on Confession Issues). Additionally, the affidavit of Ronnie Gunter, the other arresting officer, supports Judy's testimony at the suppression hearing, and not Judy's affidavit. Gunter's affidavit states:
(1) I was one of the two Scott County Sheriff Deputies who arrested Danny Lee Bedford on or about April 24, 1984.
(2) Danny Lee Bedford was read his Miranda rights and was asked if he understood those rights.
(3) Danny Lee Bedford responded to this question by saying "yeah."
(4) Danny Lee Bedford was asked if he wanted to give a statement at that time.
(5) Danny Lee Bedford's only response to this question was just hanging his head.
(6) Deputy Judy, who accompanied me, said `well, it can wait for a few more minutes' and defendant was taken straight to the jailhouse.
(Affidavit of Ronnie Gunter, State's Motion for Summary Judgment).
Based on the record before the Court, the Court cannot conclude that there was a reasonable probability that a motion to suppress on the basis of a Miranda violation would have succeeded, and consequently, that the outcome of the trial would have been any different. Counsel moved to suppress petitioner's statements based upon the only potentially viable basis available at the time of petitioner's trial. Counsel do not have a duty to file frivolous motions, and they cannot be deemed ineffective for failing to do so. There can be no prejudice resulting from counsel's failure to make a motion with no chance of success.
Next, petitioner argues that his counsel provided ineffective assistance during voir dire because they did not object to certain portions of the state's closing argument and the jury instructions. As will be addressed in greater detail in this Opinion and Order, petitioner cannot demonstrate that the statements of the prosecutors or the jury instructions that he complains of were in error, or that they prejudiced the outcome of his trial. Moreover, as will be addressed in section II(F) of this Opinion and Order, petitioner cannot establish that he was denied the right to a fair and impartial jury. Accordingly, these arguments lack merit.
With regard to petitioner's allegation that counsel failed to properly cross-examine witnesses, the Court finds that petitioner has failed to indicate what additional testimony could have been elicited to help his theory of the case. Additionally, the Court finds that petitioner has offered no evidence to support his claim that his counsel were ineffective for failing to insure that all proceedings were recorded. Specifically, petitioner has failed to indicate what, if anything, occurred during his trial that should have been recorded but was not, to his detriment.
The Court also rejects petitioner's argument that his counsel were ineffective for introducing mitigation testimony during the guilt phase of his trial. Specifically, petitioner challenges the decision by his counsel to present the testimony of Dr. Winter during the guilt phase. The Court finds this to be an example of a tactical decision that deserves the presumption of sound trial strategy. The decision to present Dr. Winter's testimony during the guilt determination proceedings was a trial strategy employed by defense counsel that was designed to lessen the impact of Dr. Winter's known opposition to the death penalty. Additionally, the testimony that petitioner refers to could have lessened his culpability and therefore, was properly presented to the jury at the guilt phase of his trial.
Finally, petitioner argues in his merit brief that his counsel were ineffective because they failed to request an independent pathologist and an independent fingerprint expert. Petitioner claims the Hamilton County Coroner's office is not a neutral and detached organization in search of the truth. According to petitioner, an independent pathologist would have informed the jury that the wounds to John Smith were consistent with petitioner's description of the shooting — that petitioner had been thrown to the floor and was shooting upward at Smith to defend himself. Petitioner submits the affidavit of Dr. Charles Knouse, a pathologist, to support his claim that an independent pathologist would have testified that both of the bullets that struck Smith traveled upward, and both shots were "consistent with someone who is on the ground shooting upwards at John Smith." (Affidavit of Dr. Charles Knouse, Exh. 8 Amended Postconviction Petition). Petitioner does not specify what testimony could have been provided by an independent fingerprint expert.
The Court finds petitioner's arguments to be without merit. The affidavit of Dr. Knouse does little more than summarize the testimony that was presented at trial by the deputy coroner, Dr. Charles Hirsch. On cross-examination, Dr. Hirsch testified that both bullets traveled upward after entering Smith's body. When asked by defense counsel if the course of the bullets could be consistent "with an individual — namely, John Smith — standing and someone else sitting on the ground and firing upward," Dr. Hirsch answered "It's consistent with that, yes, sir." (Tr. Trans. p. 1399). Defense counsel was able to advance petitioner's theory of the case through the testimony of Dr. Hirsch, and petitioner has failed to articulate what more an independent pathologist could have provided. Arguably, defense counsel could have determined that the jury would give less weight to a defense expert, and hence it was better to establish the defense theory of the case through the deputy coroner, a neutral party. Additionally, petitioner provides no evidence to support his argument that an independent fingerprint expert would have in any way contradicted the state fingerprint expert or affected the outcome of his case. Conclusory allegations are insufficient to establish that trial counsel erred.
After examining the entire record, the Court holds that petitioner's claims of ineffective assistance of counsel lack merit. Petitioner bears the burden of overcoming the presumption that the challenged conduct could be considered sound trial strategy. See Goodwin v. Johnson, 2006 WL 753111, * 8 (N.D. Ohio, Mar. 22, 2006) (citing Miller v. Francis, 269 F.3d 609, 615 (6th Cir. 2001)). A claim of unreasonable performance must be evidenced by more than unsupported generalizations. Id. In this case, petitioner simply cannot establish that his counsel's performance was so deficient that they were in essence not acting as counsel at all. Even assuming that petitioner could establish that his counsel's performance was deficient in some matter, petitioner's claims of guilt phase ineffective assistance of counsel still must fail because petitioner cannot establish that but for his counsel's alleged deficient performance, the result of his trial would have been different. Stated differently, petitioner cannot prove that he would not have been convicted of Murder and Aggravated Murder with a death penalty specification had his counsel done all of the things that he alleges they should have done. To the contrary, the evidence of petitioner's guilt was overwhelming, and included, among other things, eyewitness testimony and a confession to both a civilian and the police. Accordingly, petitioner's claims of ineffective assistance of trial counsel do not warrant habeas corpus relief.
C. Prosecutorial Misconduct
In his twelfth, thirteenth, and fifty-seventh grounds for relief, petitioner raises several claims of prosecutorial misconduct during both the guilt and penalty phases of his trial. The appropriate standard of review for claims of prosecutorial misconduct on a writ of habeas corpus is "the narrow one of due process, and not the broad exercise of supervisory power." Darden v. Wainwright, 477 U.S. 168, 181 (1986) (citing Donnelly v. DeChristoforo, 416 U.S. 637, 642 (1974)). For prosecutorial misconduct to rise to the level of a constitutional violation, the conduct of the prosecutor must have "`so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Broom v. Mitchell, 441 F.3d 392, 412 (6th Cir. 2006) (quoting Donnelly, 416 U.S. at 643); see also Darden, 477 U.S. at 181. Thus, "Petitioner's burden on habeas review is quite a substantial one." Byrd v. Collins, 209 F.3d 486, 529 (6th Cir. 2000).
When analyzing a claim of prosecutorial misconduct, a federal court must first determine whether the challenged statements were improper. Boyle v. Million, 201 F.3d 711, 717 (6th Cir. 2000). If improper, the court must then examine whether the statements were so flagrant as to constitute a denial of due process and warrant the granting of a writ. Even if the prosecution's conduct was improper or even "universally condemned," a federal court can only reverse a conviction or sentence if the statements were so flagrant as to render the entire trial fundamentally unfair. Bowling v. Parker, 344 F.3d 487, 512-13 (6th Cir. 2003) (quoting Darden, 477 U.S. at 181). In determining flagrancy, the court must consider: (1) the likelihood that the remarks would mislead the jury or prejudice the accused; (2) whether the remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally presented to the jury; and (4) whether other evidence against the defendant was substantial. See Roe v. Baker, 316 F.3d 557, 565-66 (6th Cir. 2002); Bowling, 344 F.3d at 512-23; Boyle v. Million, 201 F.3d 711, 717 (6th Cir. 2000); Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982). Relief will not be granted unless the conduct of the prosecutor "likely had a bearing on the outcome of the trial. . . ." Byrd, 209 F.3d at 530.
Allegations of prosecutorial misconduct must be considered in light of the entire trial record, and a court must look to the totality of the circumstances to determine whether the misconduct denied the petitioner a fair trial. Roe, 316 F.3d at 565. See also Lundy v. Campbell, 888 F.2d 467, 472 (6th Cir. 1989) (the entire record "refers to all that occurred from the empanelment of the jury to the return of the verdict"). The actions and reactions of the trial court and the defense are important to this review. In Donnelly, for instance, the Supreme Court rejected a prosecutorial misconduct claim after finding that the trial judge gave a strong curative instruction to the jury. 416 U.S. at 645. The Supreme Court concluded "the prosecutor's remark . . . was but one moment in an extended trial and was followed by specific disapproving instructions." Id. Likewise, in Darden, the Supreme Court found that the trial court lessened the impact of the prosecutor's improper statements by instructing the jurors that they could not base their decision on the arguments of counsel. 477 U.S. at 181-82. The Supreme Court also observed that many of the prosecutor's improper statements came in response to comments made by the defense, again diminishing their effect on the trial as a whole. Id. at 182. It is with these standards in mind that the Court will consider petitioner's claims of prosecutorial misconduct.
1. Penalty Phase Prosecutorial MisconductTwelfth and Thirteenth Grounds for Relief — Petitioner Bedford was denied his rights to due process, equal protection, an impartial jury, and freedom from cruel and unusual punishment, under the Fifth, Sixth, Eighth, and Fourteenth Amendments due to prosecutorial misconduct during the penalty phase closing argument of his capital trial.
In his twelfth and thirteenth grounds for relief, petitioner contends that he was denied his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments due to prosecutorial misconduct that occurred during the penalty phase closing arguments of his trial. With respect to his twelfth ground for relief, petitioner narrows his argument to the prosecutor's comments that his unsworn statement to the jury was not made under oath. In his thirteenth ground for relief, petitioner challenges several other comments made by the prosecutor during the same closing arguments. Because both claims address statements made by the prosecutor during closing arguments in the penalty phase of petitioner's trial, the Court will address these claims together. For the following reasons, the Court rejects each of petitioner's claims of penalty phase prosecutorial misconduct.
a. Prosecutor Commented That Petitioner's Statement Was Not Under Oath
Petitioner argues that his constitutional rights were violated during the penalty phase closing arguments because the prosecutor commented to the jury that his statement was not made under oath. (Am. Pet., doc. no. 79, ¶¶ 116-18). Petitioner contends that section 2929.03(D)(1) of the Ohio Revised Code grants capital defendants the unqualified right to make an unsworn statement not subject to cross-examination. Petitioner claims that it was improper for the prosecutor to comment that his statement was not under oath and to encourage the jury to penalize him for invoking his statutory right to make an unsworn statement. ( Id.)
At the close of petitioner Bedford's mitigation case, petitioner made an unsworn statement to the jury. Prior to making that statement, the Court advised the jury that under Ohio law, a defendant has the option to testify either under oath or not under oath, and that if a defendant elects to make a statement that is not under oath, he may not be cross-examined by the prosecution. Petitioner Bedford then made his unsworn statement and the defense rested.
During the prosecution's first closing argument, no reference was made to petitioner's unsworn statement. The first reference to petitioner's statement was made by defense counsel. With respect to the credibility of petitioner's statement, defense counsel argued the following:
It's amazing that we put two professional people on who told you what they found in Danny, and you judge him the way you saw him also. How many times did he raise his head and look you in the eye? I didn't see him do it one time. He's a man that's very stressed, he's a man that's deeply depressed, he's a man that's very sorry.
(Tr. Trans. at 110).
During rebuttal closing, the prosecutor made the following comments:
As you all noticed and the Court instructed you, when the defendant sat over here and relayed some things to you, he was not under oath. And His Honor Judge Crush instructed you and the law provides it, and I accept that as the law, when a defendant takes the stand in this particular kind of case and is not sworn in, then the prosecutor has to sit there and listen and not be able to ask one question. That's the law. I don't agree with it, but I accept it and I abide by it; but I think because of that you can judge his credibility and the things that he had to say to you with a jaundice eye because even if a person is under oath, you don't have to believe what they say, and the Court told you that before during our case in chief. And the mere fact that this man elected to avoid being scrutinized by the prosecutor in this case should be considered by you.
( Id. at 135). At this point, the defense objected and the trial court overruled the objection.
In a death penalty case, a defendant is not denied a fair trial when a prosecutor "point[s] out that an unsworn statement by an accused was not made under oath and subject to cross-examination." Jackson v. Anderson, 141 F.Supp.2d 811, 869 (N.D. Oh. 2001) (citing Byrd v. Collins, 209 F.3d at 533). However, the comments must not be designed to draw attention to the fact that a defendant exercised his right not to testify at the guilt phase of the trial. Id. In the instant matter, the prosecutor went beyond merely stating that the petitioner's statement was not made under oath. The prosecutor argued to the jury that they should view petitioner's testimony with a "jaundice eye" and that the jury should consider the fact that petitioner elected "to avoid being scrutinized by the prosecutor." However, even assuming that the prosecutor's remarks were improper, the Court cannot conclude that the remarks were so flagrant as to render the entire trial fundamentally unfair.
In Frazier v. Mitchell, 188 F.Supp.2d 798, 827 (N.D.Oh. 2001) (reversed in part on other grounds by Frazier v. Huffman, 343 F.3d 780 (6th Cir. 2003), the Northern District of Ohio addressed a similar claim. In that case, the prosecutor commented during penalty phase closing arguments that the petitioner "testified without taking an oath," so that "I couldn't cross-examine him. And you decide the value of his statement." Id. After considering the prosecutor's statement in light of the entire trial record, the Frazier court held that "the prosecutor's comment on the unsworn quality of the statement and his inability to cross-examine the petitioner following the statement did not deprive the petitioner of his right to a fair trial." Id.
Like the court in Frazier, this Court must consider petitioner's claim in light of the entire trial record. In so doing, the Court finds that the single reference by the prosecutor during the rebuttal closing argument was isolated, made only once, and does not appear to have been intended to confuse or mislead the jury. The comments were not intended to reflect on petitioner's failure to testify during the guilt determination phase of the trial, nor would the jury have understood the comments as such. Moreover, the comments were a fair response to defense counsel's attempts to bolster the credibility of petitioner by asking the jury to consider petitioner's demeanor when he made his unsworn statement. Finally, the Court cannot conclude that the comments had a prejudicial effect on the outcome of the penalty phase of petitioner's trial, as petitioner's unsworn statement was just one part of the mitigation case presented by the defense. The Court therefore finds petitioner's claim to be without merit.
b. Jury Merely Makes a Recommendation
Petitioner argues that the prosecutor improperly minimized the role of the jury and the importance of its decision by saying that the jury "merely makes a recommendation" regarding the death sentence which the judge can decide whether or not to follow. According to Petitioner, this argument encouraged the jury to avoid full responsibility for its decision and prejudiced his right to have the jury fairly consider the appropriateness of the death penalty. (Am. Pet., doc. no. 79, ¶ 121). Additionally, petitioner argues that the prosecutor advised the jurors that they did not have individual responsibility for the imposition of the death penalty.
During the prosecutor's first penalty phase closing argument, the prosecutor made the following statements to the jury:
Ladies and gentlemen, again, I'm the first one out of the shoot here, and I have to somewhat guess at what the defense may or may not say. One of the things I think they may say is they may try to put you on the spot and say `You, you and each and every one of you individually — individually is responsible for the recommendation of the imposition of the death penalty.' Well, if they do that, ladies and gentlemen, it's just not so. The Judge is going to point out to you, but I'll make it perfectly clear to you, that you solely and you only make a recommendation. The only person that can impose the death penalty is Judge Crush. You merely make a recommendation which he can follow or he does not have to follow if he does not so see fit.
. . .
Remember, ladies and gentlemen, when you go back and make that decision, it's not an individual decision; it's a collective decision by the twelve of you, the twelve of you acting together as a group on behalf of the law-abiding citizens of Hamilton County, of the State of Ohio and the United States of America. There's no "I" in jury; it's easy enough, j-u-r-y. It's a group. You make that decision as a group, and we feel that you'll make the proper group decision.
(Tr. Trans. at 103-05).
During defense counsel's second closing argument, Mr. Breyer made the following statement to the jury:
[The Prosecutor] tells you this is merely a recommendation, and, of course, that's to make it easier on you. . . . I say it's tougher to give this man life in prison. Merely a recommendation. Well, I'll tell you right now it's merely a recommendation, but it goes no further if you recommend life in prison. And don't think for one minute if you sign a verdict of death on this man, if you sign that death warrant, don't have in the back of your mind, well, the Judge will check things out, the Judge will make sure that doesn't happen unless it's proper, because it's in your hands. It's as simple as that. And don't think you are ever going to forget it, because you are not. And don't think that if I'm not a hundred percent sure, the Judge is going to correct it. Don't think three or four years from now when this man goes to the electric chair, gee, I thought the Judge was going to step in, unless you are 100 percent sure.
( Id. at 119).
At the conclusion of closing arguments, the trial judge gave the following instructions to the jury:
All twelve jurors must agree on a verdict. If all twelve members of the jury find by proof beyond a reasonable doubt that the aggravating circumstance which Daniel Lee Bedford was found guilty of committing outweighs the mitigating factors, then you must return such finding to the Court; and as a matter of law you would have no choice but to recommend to the Court that the sentence of death be ordered. You must understand, however, that a jury recommendation to the Court that the death penalty be imposed is just that, a recommendation, and is not binding upon the Court.
The final decision as to whether the death penalty shall be imposed upon the defendant rests upon this Court after the Court follows certain additional procedures required by the laws of this State. Therefore, even if you recommend the death penalty, the law requires the Court to decide whether or not the defendant Daniel Lee Bedford will actually be sentenced to death or to life imprisonment. You should not permit the fact that the judge will have the final say in this matter as to penalty to influence your recommendation in any way.
On the other hand, if . . . you find that the State of Ohio failed to prove that the aggravating circumstance which the defendant Daniel Lee Bedford was found guilty of committing outweighs beyond a reasonable doubt the mitigating factors, then you will return a verdict reflecting this decision.
In this event, you will determine which of the two possible life imprisonment sentences to recommend to the Court. . . . You must understand that if you make one of these particular recommendations, it will be binding upon the Court, and the Court must impose the specific life sentence you recommend.
(Tr. Trans. at 150-52).
In Caldwell v. Mississippi, 472 U.S. 320 (1985), the United States Supreme Court held that jurors in a capital case must not be mislead into believing that they have less responsibility than they actually do for choosing a sentence of death. In Caldwell, Mississippi state law placed the responsibility for imposing the death penalty with the jury. The prosecutor told the jury that their decision was not final and that if they returned a sentence of death, no one was "gonna take Bobby Caldwell out in the front of this Courthouse in moments and string him up" because the jury's decision was "automatically reviewable by the Supreme Court." Id. at 325-26. The Supreme Court held that Caldwell's death sentence was unconstitutional because the sentencing jury was led to believe that the final responsibility for determining the appropriateness of a sentence of death rested not with the jury itself, but with the appellate court that would later review the case. Id. The Supreme Court held as follows:
A capital sentencing jury is made up of individuals placed in a very unfamiliar situation and called on to make a very difficult and uncomfortable choice. . . . Given such a situation, the uncorrected suggestion that the responsibility for any ultimate determination of death will rest with others presents an intolerable danger that the jury will in fact choose to minimize the importance of its role. Indeed, one can easily imagine that in a case in which the jury is divided on the proper sentence, the presence of appellate review could effectively be used as an argument for why those jurors who are reluctant to invoke the death sentence should nevertheless give in. This problem is especially serious when the jury is told that the alternative decision-makers are the justices of the state supreme court. It is certainly plausible to believe that many jurors will be tempted to view these respected legal authorities as having more of a `right' to make such an important decision than has the jury.Id. at 333.
In Mapes v. Coyle, 171 F.3d 408 (6th Cir. 1999), the Sixth Circuit held that "in order to make out a Caldwell violation, a defendant must show that the prosecutor or trial judge improperly described the jury's role under state law in order to `water down' its responsibility." Id. at 414 (citing Kordenbrock v. Scroggy, 919 F.2d 1091, 1101 (6th Cir. 1990)). In Mapes, the jury was instructed that if it returned a verdict of death, that verdict would merely be a recommendation to the trial court. In finding that no Caldwell violation occurred, the Sixth Circuit held that the trial court's instructions were a correct statement of Ohio law, and therefore, the jury was not misled as to its role. Id. at 415. Likewise, in Kordenbrock, the prosecutor told the jury that a verdict of death would merely be a recommendation to the trial judge who would have the final responsibility for sentencing the defendant to death. 919 F.2d at 1101. The Sixth Circuit concluded that there was no constitutional violation because the prosecutor's characterization of Kentucky law was "technically . . . correct ." Id. Thus, Caldwell is limited to situations in which the jury is misled as to its role in a way that allows it to feel less responsible than it should for its sentencing decision, and to establish a Caldwell violation, "a defendant necessarily must show that the remarks to the jury improperly described the role assigned to the jury by local law." Slaughter v. Parker, 450 F.3d 224, 240 (6th Cir. 2006) (citing Romano v. Oklahoma, 512 U.S. 1, 9 (2004)); see also Williams v. Anderson, 460 F.3d 789, 808 (6th Cir. 2006) (same); Scott v. Mitchell, 209 F.3d 854, 877 (6th Cir. 2000).
Under Ohio law, the jury is required to recommend a death sentence if it concludes that the evidence of aggravating circumstances outweighs the evidence of mitigating factors beyond a reasonable doubt. O.R.C. § 2929.03(D)(2). However, before a death sentence can be imposed, the trial judge must independently weigh the same factors and reach the same conclusion. O.R.C. § 2929.03(D)(3). If, however, the jury concludes that a life sentence is appropriate, its decision is binding on the trial court. O.R.C. § 2929.03(D)(2). Thus, under Ohio law, a jury's death verdict is, in fact and in law, a recommendation — just as the jury was told — that the trial judge must independently accept before a death sentence can be imposed. The State of Ohio has placed the final decision in the hands of the court. See Hicks v. Collins, 384 F.3d 204, 223 (6th Cir. 2004) ("Ohio law requires a separate, post-recommendation finding by the trial judge confirming the jury's sentence" and "casting the jury's decision as a `recommendation' is not an inaccurate statement of Ohio law and therefore does not violate Caldwell.").
The Court finds that in the instant case, the comments by the prosecutor and the instructions given by the trial judge were correct statements of Ohio law and were not inaccurate, misleading, or designed to "water down" the jury's sense of responsibility. The jury was given an accurate description of the allocation of ultimate responsibility for a sentence of death. Accordingly, no error resulted from the prosecutor's statements nor the trial judge's instruction, as the United States Constitution does not prohibit the giving of accurate instructions regarding post-sentencing procedures. Petitioner has failed to demonstrate that the prosecutor's comments reduced the jury's sense of responsibility for recommending a sentence of death, or increased the possibility that the jury would recommend the death penalty. Additionally, petitioner's argument is refuted by a review of the record in its entirety. From voir dire to the penalty instructions, jurors were repeatedly told by the trial court, the prosecution and defense counsel that it was their responsibility alone to decide guilt and punishment. During the court's instructions, the court specifically informed the jury that they "should not permit the fact that the judge will have the final say in this matter as to penalty to influence your recommendation in any way." Petitioner's argument is without merit.
c. The Prosecutor Read a Passage from Gregg v. Georgia
Petitioner next argues that his constitutional rights were violated because the prosecutor attempted to persuade the jury to recommend the death penalty by using an out-of-context quote from the Supreme Court of the United States. Specifically, petitioner argues that the prosecutor read to the jury certain passages from Gregg v. Georgia, 428 U.S. 153 (1976), that equated capital punishment with an "ordered society" and that the prosecutor implored the jury to "do what is right" because justice demands the death penalty. According to petitioner, such a misleading use of a quote from the Supreme Court was prejudicial to his case and exposed the jury to irrelevant considerations that denied him the right to a fair and impartial jury. (Am. Pet., doc. no. 79, ¶ 121(D)).During the prosecution's first closing argument, the prosecutor made the following statement to the jury:
One final thought, and I can't put into words why exactly I feel the death penalty is merited here as well as the quote that I'm going to read to you. It's a quote from the United States Supreme Court, ladies and gentlemen, in the case of Gregg v. Georgia. When you go back there, ladies and gentlemen — and I'll read it to you slow — I want you to think about it, talk about it and decide. The quote is this — this is from the entire court and their opinion: `In part, capital punishment is an expression of society's moral outrage at particularly offensive conduct. This function may be unappealing to many, but it is essential in an ordered society that asks its citizens to rely on legal processes rather than self help to vindicate their wrongs."
(Tr. Trans. at 106-07).
The prosecutor continued quoting the Supreme Court as follows:
`The instinct for retribution is part of the nature of man, and channeling that instinct in the administration of criminal justice serves an important purpose in promoting the stability of a society governed by law. When people begin to believe that organized society is unwilling or unable to impose upon criminal defendants the punishment they deserve, then there are sown the seeds of anarchy, or self help, vigilante justice and lynch law.'
( Id. at 107).
During defense counsel's closing argument, Mr. Whalen informed the jury that its decision "has nothing to do with what the Supreme Court of the United States said or what's right and wrong or what your conscience tells you. . . ." ( Id. at 109). Furthermore, during the second defense closing argument, Mr. Breyer made the following statement to the jury:
The quote Mr. Dinklelacker read to you from Gregg v. Georgia leaves me shaking my head. On two previous occasions I stood at this podium from that table and asked a jury to recommend a death penalty for a man; I personally did that from that table, and in both of those particular cases I read that quote. I read that quote, and I new Mr. Dinklelacker would read that quote here today; and I took the trouble of writing down two solid pages of quotes from that same case by other Supreme Court justices, men who hopefully are just as educated and just as wise, referring to the death penalty as such things as "a second defilement added to the first" and a lot stronger law than that.
( Id. at 121).
On direct appeal, the Ohio Supreme Court noted its disapproval of the comments made by the prosecutor in this case. State v. Bedford, 39 Ohio St. 3d 122, 125 (1988), Exh. J to Return of Writ. The court reiterated that it had previously disapproved of arguments indicating that capital punishment serves as an expression of society's moral outrage, and the court cautioned prosecutors to avoid such comments. Id. However, the court determined that the prosecution's comments did not constitute reversible error. The court noted that "the prosecutor also reminded the jury, no less than four times, to carefully weigh the evidence and identified the appropriate standard of review no less than three times." Id. The court was of the view that when the prosecutor's comments were considered in the context that they were made, and in light of the entire trial record, they did not rise to the level of constitutional error. This Court agrees.
In Byrd v. Collins, 209 F.3d 486 (6th Cir. 2000), the Sixth Circuit considered and rejected a similar claim. In Byrd, the prosecutor read the exact quote that the prosecutor read in this case. In finding that there was no constitutional error, the Sixth Circuit reiterated that "[u]nless calculated to incite the passions and prejudices of the jurors, appeals to the jury to act as the community conscience are not per se impermissible." Id. at 539 (quoting United States v. Solivan, 937 F.2d 1146, 1151 (6th Cir. 1991)). The Sixth Circuit concluded that the reading of the quote by the prosecutor was not designed to ask the jury to send a message to other potential murderers. Rather, the quote summarized "the Supreme Court's explanation of the purpose of capital punishment as a way of arguing that the jury should find that these purposes would be served by imposing the death penalty on Petitioner." Id. The Court continued by stating that "[i]t is not clear that this comment was even improper" and that the reading of the quote "certainly d[id] not render Petitioner's entire trial fundamentally unfair." Id.
In light of the Sixth Circuit's decision in Byrd, it is not apparent whether the reading of the quote at issue was improper. However, even assuming that the prosecutor's use of the quote was improper, the Court finds that it did not prejudice the outcome of petitioner's trial when viewed in the context of the entire closing argument. During other portions of the closing arguments of counsel, the prosecutor repeatedly emphasized the evidence of the aggravating circumstance and urged the jury to weigh the aggravating circumstance against the mitigating factors in making its sentencing determination. Most importantly, the judge, in the jury instructions, explained the duty of the jury to consider the statutory factors and the evidence presented in support of those factors. The jury was asked and instructed to decide the penalty phase of petitioner's trial based on the evidence that was presented and not based on retribution. Additionally, the prosecutor's reference to the Supreme Court's opinion did not stand alone. Defense counsel also made reference to the opinion in Gregg and informed the jury that in other portions of that decision, the death penalty was referred to "as such things as `a second defilement added to the first' and a lot stronger law than that." (Tr. Trans. at 121). Defense counsel further argued that he knew the prosecutor would read the quote and implied that prosecutors read that quote to the jury in every case. ( Id.). Defense counsel also reminded the jury that it was required to decide petitioner's case based on the evidence presented. Therefore, the Court finds that petitioner was not prejudiced by the prosecutor's remarks and the remarks did not deny petitioner the right to a fair trial.
d. Possibility of Parole
Petitioner next argues that his constitutional rights were violated because the prosecutor misled the jury by arguing that if they returned a verdict recommending a life sentence, there was no guarantee that the law would not change and petitioner would not get early parole. (Am. Pet., doc. no. 79, ¶ 121(E)). According to petitioner, it was improper and prejudicial for the prosecutor to ask the jurors to speculate that the current law might be amended so that petitioner could be paroled after serving a shorter sentence. Petitioner contends that the prosecutor's comments were designed solely to frighten the jurors into deciding his case based on fear and uncertainty rather than an impartial consideration of the facts and evidence. ( Id.).
During the state's rebuttal closing argument, the prosecutor made the following statement to the jury:
[Defense counsel] has hammered away at the fact that you have as an option the parole eligibility in 30 years if you recommend life and parole eligibility in 20 years if you recommend life. Well, let's use our common sense. First of all, the Judge cannot guaranteed you anything.
(Tr. Trans. at 131). Defense counsel made an objection which the judge overruled. The prosecutor continued as follows:
The law says that the parole eligibility is 30 years and the parole eligibility is 20 years, and that's the way it is today; but you don't know how it's going to be a year from now, two years from now, three years from now.
( Id.) This was followed by another objection by the defense which was also overruled. The prosecutor then continued:
That, although I mentioned it, isn't really the issue in this particular case and that shouldn't be playing upon your minds because if that's the only reason you impose life in prison, then that is a violation of your oath.
( Id.)
On direct appeal to the Ohio Supreme Court, the court labeled the prosecutor's comments as "ill-advised" and stated that it "expressly disapprove[d] of arguing to a jury that a statutory penalty could be amended." State v. Bedford, 39 Ohio St. 3d at 125. The court ruled, however, that the comment was not grounds for reversing petitioner's sentence. In reaching that decision, the court read the prosecutor's statement in conjunction with the jury instructions and the fact that the prosecutor also told the jury that it could not base its decision on the idea that petitioner might get parole because that would "violate its oath." Id.
In reviewing the arguments of the parties, the Court rejects petitioner's proposition that the comments regarding petitioner's parole eligibility deprived him of a fair trial. On habeas review, it is the province of the Court to ensure that the proceedings surrounding petitioner's sentencing pass muster under the Federal Constitution. Federal constitutional law does not prohibit capital sentencing juries from considering the possibility of parole or commutation of sentence. See generally California v. Ramos, 463 U.S. 992 (1983); see also Skaggs v. Parker, 27 F.Supp.2d 952 (D. Kentucky 1998) (reversed on other grounds by Skaggs v. Parker, 235 F.3d 261 (6th Cir. 2000)). Therefore, this Court cannot say that the comments made by the prosecutor were prohibited by the Constitution. Moreover, after a timely objection was made by defense counsel, the prosecutor clarified his argument and specifically told the jury "although I mentioned it, [parole] isn't really the issue in this particular case and that shouldn't be playing upon your minds" because that would be "a violation of your oath." (Tr. Trans. at 131). A review of the prosecutor's comments in their entirety, as well as the jury instructions, reveals that any potential improper effect of these comments on the jury's decision was appropriately remedied. This portion of petitioner's thirteenth ground for relief is without merit.
e. Reintroduction of Photographs
Next, petitioner challenges the prosecutor's reintroduction of photographs of the two victims during the mitigation phase of his trial. Petitioner contends that reintroduction of the photographs was "a technique designed to provoke horror and revulsion in the jurors" and that it was improper for the prosecutor to "refer to the contents of the photos as the aggravating circumstance in the case." (Pet. Merit Brief, doc. no. 133, at 43).
During closing arguments, the prosecutor told the jury:
Whatever Mr. Bedford experienced, whatever he was thinking, whatever he was feeling is not grounds to take two people's lives; and I'm going to show you the photographs in the case. You've already seen them, but I'll remind you of them because this is what the whole case is about; this is the reason we are here, okay?
This is the aggravating circumstance, this is the course of conduct which brought us all here together.
(Tr. Trans. Vol. IV, p. 137; Petitioner's Merit Brief, doc. no. 133, at 42). The photographs at issue were close-ups of John Smith with his head in a pool of blood, and Gwen Toepfert's body lying on the floor with a portion of her bowels protruding. Petitioner argues that the prosecutor used the photos to provoke horror and revulsion. He further asserts that the prosecutor's comments on the photographs asked the jurors to consider the horrible, revolting nature of the crime as a non-statutory aggravating circumstance.
In rejecting this claim on direct appeal, the Ohio Supreme Court found that it is not per se error to reintroduce photographs properly admitted during the guilt phase of a capital trial. Bedford, 39 Ohio St. 3d at 125. This Court agrees. Admission of evidence is a matter of state law and alleged error, such as the improper admission of photographs, usually does not support a writ of habeas corpus. Estelle, 502 U.S. at 67. The admission of photographs is within the sound discretion of the trial court, and "[a]n appeal as to admission almost always fails." Brown v. Bradshaw, 2006 WL 533405, *35 (N.D. Ohio Mar. 3 2000) (rejecting petitioner's argument that reintroduction of guilt phase photos during mitigation deprived him of fair trial).
In Morales v. Coyle, 98 F.Supp.2d 849, 885 (N.D.Ohio 2000), the petitioner argued that it was error to admit, during the penalty phase of his trial, all of the evidence and exhibits that had been admitted into evidence during the guilt phase of his trial. In particular, Morales challenged the admission of thirty-one photographs depicting the victim at the crime scene and at the autopsy, including photographs that illustrated the partial scalping of the victim's head. Morales argued that the photographs were not probative during the penalty phase of his trial because they did not relate to the aggravating circumstance or the mitigating factors. Id. After reiterating that a violation of state law, such as the rules of evidence, is not cognizable in a federal habeas proceeding unless the violation is of constitutional magnitude, the United States District Court for the Northern District of Ohio rejected Morales' claim, finding that "photographs of injuries such as those suffered by the victim in this case are relevant to several of the elements of kidnapping — the aggravating circumstance." Id. In addition, the court concluded that even if Morales could demonstrate a violation of state law, he could not show that the alleged violation was of "constitutional magnitude." Id.
Similarly, in Benge v. Johnson, 312 F.Supp.2d 978, 1012 (S.D. Ohio 2004), the petitioner argued that the prosecutor "attempted to convert the gruesome nature of the murder into an aggravating circumstance" by encouraging the jurors to review the photographs depicting the victim's fatal wounds. The United State District Court for the Southern District of Ohio held:
While some of the challenged remarks arguably sought to appeal to the jurors' emotions, rather than encourage the jurors to find, based on the evidence, that the aggravating circumstance outweighed the mitigating factors, these remarks did not, in the Court's view, deprive petitioner of a fundamentally fair sentencing hearing. Contrary to petitioner's assertion that he encouraged the jurors to consider additional non-statutory aggravating circumstances or otherwise mischaracterized the weighing process, the prosecutor repeatedly referred to a single aggravating circumstance and reminded the jurors to follow the law as explained to them by the trial court. Balanced against the arguably improper comments highlighted by petitioner, these remarks convince the Court that the prosecution's closing argument, when considered as a whole, was not so egregious as to deny petitioner a fundamentally fair trial.Id. at 1013.
Like the petitioners in Morales and Benge, Bedford cannot prevail on this claim. Even if the admission of the photographs at the penalty phase of his trial was improper, the Court simply cannot conclude that the admission constituted a violation of constitutional magnitude. As in Benge, the prosecutor in Bedford's case repeatedly referred to a single aggravating circumstance and reminded the jurors to follow the law as explained to them by the trial court. For example, the prosecutor told the jury:
The Judge is going to instruct you ladies and gentlemen that at this point the burden is on the State to prove beyond a reasonable doubt that the aggravating circumstance outweighs the mitigating factors beyond a reasonable doubt. That's all you decide at this point, and that's the only thing you need to talk about.
(Tr. Trans. Vol. IV, p. 99-100). In viewing the record as a whole, the Court cannot find that the reintroduction of the photographs during the penalty phase so stirred the emotions of the jurors as to blind them to the weight of the mitigating factors and deny petitioner a fundamentally fair trial.
f. Unpleasant to Represent Petitioner
Petitioner argues that it was prosecutorial misconduct for the prosecutor to comment to the jury that it was "unpleasant for defense counsel to represent petitioner," and that such a comment "improperly endanger[ed] the impartiality of the jury." (Am. Pet., doc. no. 79, ¶ 121(f)). After considering the context of this statement, the Court finds that this comment was not improper.
During rebuttal closing, the prosecutor made the following statement to the jury:
You shall and you must recommend to the Court, His Honor Judge Crush, the death penalty be imposed. That is the oath and that is the law, and each and every one of you said you would do that if the Sate of Ohio met its burden of proof, and you don't go any further. You don't use life in prison with the parole eligibility as an excuse to avoid that unpleasant duty, and it's unpleasant. It's unpleasant for prosecutors to do this case, it's unpleasant for the defense attorneys to represent this man —
(Tr. Trans. at 133). At this point, defense counsel objected and moved for a mistrial. ( Id.) The Court overruled the objection, and the prosecutor continued as follows:
And it's probably unpleasant for you to sit there. We realize it's difficult, but you have agreed and you have sworn that you will live up to that oath and do what is necessary.
(Id.). In viewing this statement in the context in which it was made, this Court cannot find that the statement deprived Bedford of a fair trial. The prosecutor did not argue that defense counsel found it unpleasant to represent petitioner because of petitioner's bad or criminal nature. Rather, the prosecutor made a more philosophical argument that death penalty cases, in general, are unpleasant and difficult for all parties involved. These comments did not taint the proceedings in such a manner as to constitute reversible error.
2. Guilt Phase Prosecutorial Misconduct Fifty-Seventh Ground for Relief — Petitioner Bedford was denied his rights to due process, equal protection, an impartial jury, and the effective assistance of counsel as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments, due to prosecutorial misconduct during the guilt phase closing argument of his capital trial.
In his fifty-seventh ground for relief, petitioner claims his constitutional rights were violated as a result of prosecutorial misconduct that occurred during the guilt phase closing arguments. Petitioner argues that the remarks made by the prosecution were improper, not isolated, and made mainly during the rebuttal closing thereby giving the defense no opportunity to respond. Petitioner directs this Courts attention to the following remarks by the prosecution.
First, petitioner contends that the prosecution used "improper rhetoric to discredit defense counsel and Petitioner." (Pet. Merit Brief, doc. no. 133, p. 36). Specifically, petitioner alleges that the prosecutor argued that a witness had been "dragged through the mud by defense counsel" and that defense counsel attempted to "put everyone else on trial" except petitioner. ( Id. at 37). Petitioner also alleges that it was constitutional error for the prosecution to refer to petitioner as a "demon" during closing arguments. Petitioner contends that this reference is "a negative term which serves no other purpose than to raise a negative connotation in the minds of the jurors, thereby unfairly prejudicing Petitioner." (Am. Pet., doc. no. 79, ¶ 534). According to petitioner, the remarks increased the possibility that the jury would think negatively about him and his counsel, and therefore, the jury was unable to fairly and impartially consider the facts and evidence in his case.
Next, petitioner argues that the prosecutor attempted to elicit a guilty verdict by appealing to the jurors sense of sympathy for the victims of this offense. Specifically, petitioner contends that the prosecutor argued to the jury that it was their duty to find petitioner guilty and that if they returned a guilty verdict, the jurors could say "I did Gwen justice and I did Johnny justice." Petitioner argues that these comments equated a guilty verdict with a sense of duty and deprived him of a fair and unbiased consideration of the facts and evidence.
Finally, petitioner contends that it was prosecutorial misconduct for the prosecution to make reference to "gruesome photos" of the victims and remark that the photos were petitioner's "specific intent and . . . his result." ( Id. at ¶ 533). Petitioner argues that these comments were "designed to cause the jurors to experience a horror and revulsion which is irrelevant to the issue of guilt, and [are] prejudicial to Petitioner." ( Id.).
The Court set forth the standard for analyzing claims of prosecutorial misconduct in the portion of this Opinion and Order addressing petitioner's twelfth and thirteenth grounds for relief. In analyzing petitioner's claims, the Court must be mindful that the appropriate standard of review for claims of prosecutorial misconduct on a writ of habeas corpus is whether the conduct of the prosecutor "so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Hill v. Brigano, 199 F.3d 833, 847 (6th Cir. 1999) (quoting Donnelly, 416 U.S. at 643). Applying that standard to the instant case, the Court finds petitioner's claims of guilt phase prosecutorial misconduct to be without merit.
Allegations of prosecutorial misconduct must be considered in light of the entire trial record, and a court must look to the totality of the circumstances to determine whether the alleged misconduct denied the petitioner a fair trial. See Roe, 316 F.3d at 565; see also Lundy v. Campbell, 888 F.2d 467, 472 (6th Cir. 1989). In the present case, the instances of misconduct of which petitioner complains are all alleged to have occurred during isolated moments of the closing arguments of a very long trial. It is well established that the parties to a trial have considerable latitude during closing argument. Jackson v. Anderson, 141 F.Supp.2d 811 (N.D. Ohio 2001). Although "gratuitous insults" of a defendant are not to be encouraged and may often be improper, the relevant inquiry is whether the comments deprived the defendant of a fair trial. See Byrd, 209 F.3d at 536 (defendant not deprived of fair trial where prosecutor referred to him as a "predator" on three separate occasions); see also Olsen v. McFaul, 843 F.2d 918, 930 (6th Cir. 1988) (not constitutional error to refer to defendant as a "deadbeat," "thief," "creep," and "liar").
Moreover, while it is unprofessional to make personal attacks on opposing counsel, such remarks will not automatically rise to the level of prosecutorial misconduct. See Jackson, 141 F.Supp.2d at 868 (finding prosecutor's argument accusing defense counsel of "mealy-mouthing" and attempting to "throw a monkey wrench or red herring" into the proceedings to be unprofessional but not rising to the level of prosecutorial misconduct); see also Byrd, 209 F.3d at 536 (insinuation that defense counsel was hiding something from the jury not prosecutorial misconduct). Accordingly, reversal cannot be premised on every intemperate remark by counsel as some latitude is granted to both parties in closing argument. In addition, the trial court instructed the jury at the completion of closing arguments that it must decide the case based on the evidence and not the arguments of counsel. See Darden, 477 U.S. at 181-82 (finding that the trial court lessened the impact of the prosecutor's improper statements by instructing the jurors that they could not base their decision on the arguments of counsel).
The Court also finds that during petitioner's trial, the state presented overwhelming evidence of petitioner's guilt. Petitioner confessed to shooting Gwen Toepfert and Johnny Smith on three separate occasions. JoAnn Funk testified at petitioner's trial and provided an eyewitness account of much of what happened during the early morning hours of April 24, 1984. The state presented uncontroverted evidence that on that day, petitioner arrived at Gwen Toepfert's apartment armed with two loaded firearms and fatally shot and killed her and Johnny Smith. The strength of the evidence against petitioner is great. Therefore, the Court finds that the conduct of the prosecution did not deny petitioner a fair trial or due process of law.
D. Jury Instructions
Petitioner alleges in his sixteenth, twenty-sixth, sixty-second, and sixty-third grounds for relief that the trial court violated his constitutional rights by providing erroneous or incomplete instructions to the jury. Specifically, petitioner argues that it was constitutional error to advise the jury that it merely recommends a sentence of death, to provide the jury with an unduly coercive "allen-type" instruction during penalty phase deliberations, to fail to properly instruct the jury on the law of voluntary manslaughter, and to instruct the jury that petitioner had the burden of proof with respect to the defense of intoxication. Respondent argues that all of the court's instructions to the jury were proper and petitioner has no basis for habeas corpus relief.
In order to receive habeas corpus relief from incorrect jury instructions, a petitioner must show that the instructions at issue were "so infirm as to render the entire trial fundamentally unfair." Slaughter v. Parker, 450 F.3d 224, 237 (6th Cir. 2006) (citing Estelle v. McGuire, 502 U.S. 62, 72 (1991)). Even if an instruction is found to be incorrect under state law, the improper instruction, by itself, is not a basis for habeas relief. Rather, the issue is "`whether the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process.'" Hill v. Mitchell, 400 F.3d 308, 328 (6th Cir. 2005) (quoting Estelle, 502 U.S. at 72). In making this determination, the instruction or instructions "may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record." Id. at 328-29. The Court will now address each of petitioner's claims of improper jury instructions.
1. Caldwell Claim Sixteenth Ground for Relief — The trial court denied Petitioner his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments when it instructed the jury at the penalty phase of Petitioner's trial that the jury merely recommends the death sentence.
In his sixteenth ground for relief, petitioner alleges that the trial court violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments when it instructed the jury at the penalty phase of his trial that the jury merely recommends the death sentence, and that the ultimate responsibility for imposing death rests with the trial court. This Court has already considered and rejected this argument in the previous section of this Opinion Order addressing petitioner's claims of prosecutorial misconduct. In that section, the Court concluded that there was no violation of the Caldwell doctrine in this case by either the prosecutor or the trial court. Accordingly, petitioner's sixteenth ground for relief is without merit.
2. Allen Charge Twenty-Sixth Ground for Relief — The trial court denied Petitioner his rights to due process, equal protection, an impartial jury, and freedom from cruel and unusual punishment under the Fifth, Sixth, Eighth, and Fourteenth Amendments when the trial court gave an unduly coercive "Allen-type" instruction to the jury during penalty phase deliberations.
In his twenty-sixth ground for relief, Petitioner argues that the trial court violated his constitutional rights when it gave an unduly coercive "Allen-type" instruction to the jury during the penalty phase deliberations. Petitioner alleges that the challenged instruction placed pressure on the jurors to come to a speedy resolution of his case, tipped the balance in favor of death, and "infected the process of jury deliberation and rendered the verdict unconstitutionally prejudicial." (Am. Pet. ¶ 223-28). Respondent contends that the instruction did not "coerce" the jury into recommending a sentence of death.
In Allen v. United States, 164 U.S. 492 (1896), the United States Supreme Court ruled that supplemental instructions may be given to a deadlocked jury under certain circumstances. Such instructions have become known as Allen charges, or "dynamite" charges. See Henderson v. Collins, 262 F.3d 615, 617 n. 1 (6th Cir. 2001). The danger associated with an Allen charge is that a trial court will place too much pressure on the jury to reach a decision. See State v. Howard, 42 Ohio St.3d 18, 21 (1989). Under certain circumstances, this pressure may cause dissenting jurors to change their minds and result in a situation where the requirement of a unanimous verdict "more closely resembl[es] majority rule." Id. Therefore, the constitutionality of an Allen charge depends on whether the charge in question was "coercive." Lowenfield v. Phelps, 484 U.S. 231, 241 (1988).
The determination of whether an Allen charge is coercive is a fact intensive inquiry that must be judged on a case-by-case basis. Henderson, 262 F.3d at 618-19 (citing Lowenfield, 484 U.S. at 241); see also Tucker v. Catoe, 221 F.3d 600, 609 (4th Cir. 2000). The charge must be reviewed "in its context and under all the circumstances." Lowenfield, 484 U.S. at 237 (quoting Jenkins v. United States, 380 U.S. 445, 446 (1965) (per curiam)). A writ of habeas corpus will only be granted if the charge deprived a defendant of constitutional due process. Mason v. Mitchell, 320 F.3d 604, 638 (6th Cir. 2003) (citing Gall v. Parker, 231 F.3d 265, 321 (6th Cir. 2000)). Absent a violation of due process, relief cannot be granted merely because an instruction was erroneous. Accordingly, this Court must consider whether the instruction "by itself so infected the entire trial that the resulting conviction violates due process." Gall, 231 F.3d at 321.
On habeas review, "the due process inquiry associated with an Allen charge focuses on the circumstances that triggered the charge, as well as the language of the charge itself." Henderson, 262 F.3d at 619. Several factors must be considered when examining the circumstances of a particular case. Those factors include: (1) the content of the information provided by the jury and whether the jury requested the additional charge; (2) the language of the additional charge that was given to the jury; (3) whether the trial court conducted a poll of the jury or was aware of the numerical division of the jury; (4) whether the charge was directed at or coerced the minority jurors; (5) whether threats or suggestions were made that the jury would be kept sequestered until they reached a unanimous verdict; (6) the length of time the jury continued to deliberate after receiving the charge; (7) the total length of deliberations; and (8) any other factors or indications of coercion. See id. (citing Lowenfield v. Phelps, 484 U.S. 231 (1988); Catoe, 221 F.3d at 611).
The record in petitioner's case reveals that the jury began its deliberations at approximately 5:00 p.m. on the evening of November 5th, 1984 and subsequently retired at 10:30 p.m. that night. (Mit. Tran. 11/5/84, at 157-60). The jury resumed deliberations at 9:30 a.m. the next morning and at some point that afternoon, the jury submitted a question to the judge. ( Id. at 163). The question read as follows:
If we cannot reach a unanimous decision for this part of the trial, what would happen? Is there an approximate time frame of deliberation before which we can declare that we are unable to reach a verdict?
( Id.) At 3:42 p.m., the trial court gave the jury the additional instruction that is the subject of this ground for relief. The court instructed the jury as follows:
Ladies and gentlemen of the jury, the Court is advised that you have indicated difficulty in making a recommendation of sentence. Now the Court suggests to you that since the trial of this case means a great deal to the parties and to the public and has been expensive in time, effort and money, the Court urges you to make every reasonable effort to agree on a recommendation.
In a ordinary case where the jury is deadlocked, the Judge can declare a mistrial and another jury can be selected to rehear the case. In this matter, such a solution is, obviously, undesirable since this jury has already decided guilt and no new jury could balance as easily the aggravating circumstance and mitigating factors. You then must consider that you are the jury that is in the best position to make an intelligent and fair recommendation in this matter, and the Court urges you to make every reasonable conscience effort to do so.
There's no time limit set by law to the time a jury may take to make a recommendation. The Court in an effort to help you in your deliberations suggests the following: Return to the jury room and consider whether you are, in fact, unable with reasonable anticipation to come to an agreement. If you believe an agreement may be reached, continue to deliberate. If then you reach a unanimous decision to recommend the death penalty or life sentence, do so under the instructions previously given.
If, after exhausting all reasonable discussion, you remain hopelessly deadlocked on the issue of the death penalty, then you will consider that the prosecution has failed to prove to you as a unanimous group that the aggravating circumstance outweighs beyond a reasonable doubt the mitigating factors. If you in fact reach the last conclusion, proceed to recommend the appropriate life sentence.
( Id. at 169-70). Sometime after receiving the additional instruction, Juror Wilhelm became ill due to very high blood pressure. ( Id. at 171). She was treated by the jail doctor who felt her condition was stress related. ( Id. at 172). After assuring the court that she was able to continue, Juror Wilhelm and the other jurors resumed deliberations and reached a verdict at approximately 7:30 p.m. that evening, nearly four hours after the judge gave the jury the additional instruction. ( Id. at 176-78).
Petitioner Bedford argues that the trial court's supplemental instruction was coercive because it emphasized the undesirability of a deadlocked jury without urging majority jurors to reconsider their positions, Howard, 42 Ohio St.3d at 24, and did not ask all jurors to reconsider their opinions in light of the facts that others do not agree are proven. Id. at 25. Petitioner asserts that "[t]he charge contained no language which would safeguard Petitioner's right to a fundamentally fair hearing by advising the jurors that they need not acquiesce to the opinions of other jurors merely for the purpose of reaching a verdict." (Pet. Merit Brief, doc. no. 133, at 49).
On direct appeal, the Ohio Supreme Court rejected petitioner's argument that the additional instruction was unduly coercive and encouraged the jury to make a recommendation of death. The court reasoned that the jury did not advise the trial court that it was, in fact, deadlocked. Because the jury was not officially deadlocked, the court found that the trial judge's additional instruction and advice to the jury was a reasonable response to the jury's question and complied with State v. Maupin, 42 Ohio St.2d 473 (1975), which advises trial courts to urge jurors to reach a decision only if they can conscientiously do so. The court rejected petitioner's argument that the instruction so coerced Juror Wilhelm that she suffered a stress-induced illness. According to the Ohio Supreme Court, "[i]t is not surprising that occasionally a juror will become somewhat stressed while making a life or death determination." Bedford, 30 Ohio St. 3d at 126. The court noted that when the jury was polled, Juror Wilhelm stated that she concurred in the death verdict. Id.
In reviewing the record in petitioner's case, the Court is troubled by several aspects of the trial court's supplemental instruction. First, the supplemental instruction deviated from the preferred language of a supplemental Allen charge set forth in State v. Maupin, 42 Ohio St.2d 473 (1975) in that it did not remind the jurors that they should not give up their honest convictions or conscientiously held beliefs solely because of the opinions of the other jurors or in order to reach a unanimous decision. Omitting the "honest convictions" component of an Allen charge increases its coercive effect. See Smalls v. Batista, 191 F.3d 272, 279 (2d Cir. 1999) (finding Allen charge coercive, in part, because it failed to remind jurors "not to relinquish their own conscientiously held beliefs" and instructed majority to "make every effort to convince the others whether it be one of eleven, two out of twelve, whatever number it may be, to express your views"); Jiminez v. Myers, 40 F.3d 976, 981 n. 5 (9th Cir. 1993) (failing to give the honest conviction portion of an Allen charge "weighs heavily in favor of the conclusion that the defendant's right to a fair trial and impartial jury has been violated.").
The Court must review the Allen charge in its context and under all the circumstances, and "a single instruction to a jury may not be judged in artificial isolation, but must be viewed in the context of the overall charge," Cupp v. Naughtn, 414 U.S. 141, 146-147 (1973). However, the Court is mindful that "a review of the `facts and circumstances' surrounding the Allen charge itself" is not "a carte blanche invitation to bootstrap every preliminary instruction into the inquiry." Henderson, 262 F.3d at 621. Although, under Henderson, the legality of preliminary instructions is not dispositive of the constitutionality of an Allen charge, preliminary instructions to the jury concerning the jury's conduct during deliberations is due at least some consideration. See Bonnell v. Mitchell, 301 F.Supp.2d 698 (N.D. Ohio 2004) (relying on the trial court's preliminary instructions to support finding that Allen charge was not unduly coercive); see also Smalls v. Batista, 191 F.3d 272, 277 (2d Cir. 1999) (finding Allen charge coercive after examining charge "as part of the whole instruction").
In reviewing the preliminary instructions given to the jury at the beginning of the penalty phase deliberations, the Court notes that the trial court did advise the jury regarding their conduct during deliberations:
Consult with one another and consider each other's views and deliberate with the objective of reaching an agreement. Each of you must decide this matter for yourself, but you should do so only after a discussion and consideration of all relevant evidence and reports with your fellow jurors. Do not hesitate to change an opinion if convinced that it is wrong; however, you should not surrender honest convictions in order to be congenial or to reach a verdict solely because of the opinion of the other jurors.
(Tr. Trans. at 149-150) (emphasis added). Thus, although the Allen charge did not include the honest convictions language, the jury was previously advised that as individual jurors, they must not surrender their honest convictions simply to reach an agreement.
The Court is also troubled by the trial court's supplemental instruction because the instruction contained inaccurate and potentially misleading information. The jury inquired of the court the consequences of becoming deadlocked. In response, the judge informed the jury that in an "ordinary case" where the jury is deadlocked, the trial judge can declare a mistrial and another jury can be selected to rehear the case. The judge admonished the jury that "such a solution is, obviously, undesirable since this jury has already decided guilt and no new jury could balance as easily the aggravating circumstance and mitigating factors," and that the jury "must consider that you are the jury that is in the best position to make an intelligent and fair recommendation in this matter. . . ." (Tr. Trans. at 149). Under Ohio law, this portion of the trial court's supplemental instruction was an inaccurate description of the sentencing process. In fact, when faced with a deadlocked jury during the mitigation phase of a capital trial, the trial court must instruct the jury to recommend the appropriate life sentence, and consider that the prosecution has failed to prove that the aggravating circumstance outweighs the mitigating factors. If the jury is unable to reach a unanimous decision on either death or one of the statutorily prescribed life sentences, "the statute requires the trial court to impose one of two life sentences." Henderson, 262 F.3d at 620 ( citing State v. Springer, 63 Ohio St.3d 167 (1992)).
Although the trial court initially told the jury that a mistrial was possible, the court stated the appropriate course of action if the jury could not reach a unanimous verdict at the end of the supplemental instruction. The court informed that jury that if it became "hopelessly deadlocked on the issue of the death penalty," it must "consider that the prosecution has failed to prove to you as a unanimous group that the aggravating circumstance outweighs beyond a reasonable doubt the mitigating factors." (Tr. Trans. at 170).
Although the Court is troubled by portions of the supplemental charge, the Court cannot conclude, in light of the entirety of the circumstances surrounding the trial and sentencing decision, that the supplemental charge was so impermissibly coercive that it violated petitioner's right to due process. First, and most importantly, there is no evidence in the record that they jury was, in fact, ever deadlocked or divided. The jury asked a question of the court seeking guidance in the event they were to become deadlocked. Furthermore, when the court provided the additional instruction and guidance, the court did not order the jury to continue deliberations. Rather, the trial court "suggested" that the jurors return to the jury room to "consider" whether they could, with "reasonable anticipation," reach a verdict. (Mit. Tr. 11/5/84, at 169-70). The court instructed the jury to continue their deliberations only if they believed that an agreement could be reached. ( Id.). In so doing, the court did not threaten or suggest to the jury that they must reach a verdict, or that they would be forced to remain sequestered until such time as they were able to reach a unanimous decision. The court's instruction was a reasonable response to the jury's question.
The lack of coercion is further evidenced by the fact that the jury continued to deliberate for nearly four additional hours after receiving the instruction, and they deliberated for a total of two days. When the court gave the supplemental instruction, it was not aware of and did not inquire as to the numerical division of the jurors. As such, the additional instruction was neither directed to the minority or the majority vote, and the trial court did not make reference to the minority, the majority, or to hold-out jurors. Consequently, no juror hearing the supplemental instruction could reasonably have thought that the judge was singling out him or her for disapproval or blame. Finally, the fact that a juror became temporarily ill due to a stress-induced illness does not establish that the juror was coerced by the instruction. There is nothing in the record to suggest that Juror Wilhelm was in the minority and that her illness was caused by the instruction of the court or pressure from jurors in the majority vote. Given these circumstances, the Court concludes that the trial court's supplemental instruction was not impermissibly coercive and did not deprive Bedford of due process. The Court therefore denies habeas relief with respect to this claim.
3. Voluntary Manslaughter Instruction Sixty-Second Ground for Relief — The trial court denied Petitioner's rights to due process, equal protection, and an impartial jury under the Fifth, Sixth, Eighth, and Fourteenth Amendments when the Court denied a requested instruction on voluntary manslaughter and gave an incorrect instruction instead.
In his sixty-second ground for relief, petitioner contends that his constitutional rights were violated by the trial court's refusal to give the instruction on voluntary manslaughter that he requested, and by instead giving an instruction that he claims was erroneous. With respect to this claim, petitioner asserts that he submitted a written request for an instruction that informed the jury that extreme emotional distress is a mitigating circumstance that reduces the charge of aggravated murder to voluntary manslaughter. Petitioner sought an instruction stating that even if the prosecution proved that petitioner purposely caused the deaths of the victims, the jury could still find that petitioner was under extreme emotional distress brought on by serious provocation reasonably sufficient to incite petitioner into using deadly force, and return a verdict of voluntary manslaughter. The trial court refused to use petitioner's proposed instruction, stating that extreme emotional distress is not a mitigating factor, and that a finding of purpose by the jury would raise petitioner's conduct to the crime of aggravated murder or murder, even where extreme emotional stress is present. Petitioner argues that the trial court's instruction was incorrect in that it improperly excluded the possibility that petitioner could act purposely and yet still be convicted of voluntary manslaughter. (Am. Pet., doc. no. 79, ¶ 576). Respondent contends that the trial court's instruction was a correct statement of Ohio law.
At the close of the guilt phase of petitioner's trial, counsel for petitioner submitted a proposed jury instruction to the court. The proposed instruction read as follows:
extreme emotional stress is a mitigating circumstance that reduces the charge of aggravated murder to voluntary manslaughter. If you find that the State has proven that the defendant purposely or knowingly caused the death of Gwen Toepfert or of Johnny Howard Smith, but also find that at the time the act was committed the defendant was under extreme emotional stress brought on by serious provocation reasonably sufficient to incite the defendant into using deadly force, then your verdict must be guilty of voluntary manslaughter.
(Tr. Trans. 1534-35).
The trial court refused to give petitioner's proposed instruction, finding it to be an incorrect statement of Ohio law. Instead, the trial court instructed the jury as follows:
Definition of Voluntary Manslaughter. Voluntary manslaughter is defined as follows: No person, while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim that is reasonably sufficient to incite the person into using deadly force, shall knowingly cause the death of another.
. . .
Elements of voluntary manslaughter. The essential elements of voluntary manslaughter are as follows: 1) Jurisdiction of the Court — the offense must have occurred within Hamilton County, Ohio; 2) Identity of the accused — the defendant must be the person who committed the offense; 3) The defendant's conduct must have been a voluntary act; 4) The defendant acted knowingly; 5) The defendant caused the death of another.
Distinguishing between murder and voluntary manslaughter. In determining whether a defendant charged with aggravated murder or murder had the purpose necessary to commit the crime rather than the knowledge required for voluntary manslaughter, you may consider whether the person acted while under the influence of sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation occasioned by the victim reasonably sufficient to incite the defendant into using deadly force.
In determining whether the provocation was reasonably sufficient to incite the defendant into using deadly force, you must consider the emotional and mental state of this defendant and the circumstances that surrounded him at that time.
When a person knowingly kills another under the influence of a sudden passion or in a sudden fit of rage, either of which is brought on by serious provocation reasonably sufficient to cause him to use deadly force, such person has not acted purposely.
( Id. at 1622-23). In objecting to this instruction, counsel for petitioner stated that "our position is that voluntary manslaughter is a defense even to an aggravated murder in the sense that someone can act purposely and still be found guilty of voluntary manslaughter." Id. at 1535.
On direct appeal, the court of appeals held that petitioner's proposed instruction was an incorrect statement of Ohio law. The court concluded that a defendant who kills in a sudden passion or sudden fit of rage brought on by serious provocation is not acting purposefully, and if a jury finds that a defendant was acting purposefully, the defendant cannot be found guilty of voluntary manslaughter. Moreover, the court found that petitioner's standard of "extreme emotional stress" was no longer an element of voluntary manslaughter in the State of Ohio. State v. Bedford, 1986 WL 11287, * 7 (Ohio App. 1st Dist. 1986). The court of appeals further concluded that with the trial court's instruction, the jury could have found petitioner guilty of voluntary manslaughter if they found that petitioner killed Mr. Smith and Ms. Toepfert in a sudden passion or sudden fit of rage brought on by serious provocation, because under such circumstances, the killings would not have been purposeful. Id. In affirming the decision of the court of appeals, the Ohio Supreme Court agreed that under Ohio law, the offense of voluntary manslaughter requires a mens rea that is less than purposeful. Bedford, 39 Ohio St. 3d at 131.
The Ohio Supreme Court has found that the instruction given was a correct statement of Ohio law. Petitioner offers no reasoned argument to the contrary. The Ohio Supreme Court's determination of Ohio law is binding on this Court, and the Court may not grant federal habeas relief based on a violation of state law unless the violation is so egregious that it results in a denial of due process. Lyell v. Renico, 470 F.3d 1177, 1187 (6th Cir. 2006) (citing Estelle v. McGuire 502 U.S. 62, 67 (1991) ("[I]t is not the province of a federal habeas court to reexamine state-court determinations on state-law questions."); see also Thompson v. Bock, 2007 WL 328688, * 4 (6th Cir. Jan. 31, 2007) ("State courts, after all are the final arbiters of the [state] law's meaning and application."). Errors in jury instructions rise to the level of constitutional error only if they are so fundamentally unfair as to deprive the petitioner of a fair trial. In the present case, petitioner has failed to show any fundamental unfairness resulting from the trial court's instruction on voluntary manslaughter. Accordingly, the Court finds petitioner's sixty-second ground for relief to be without merit.
4. Instruction Regarding the Defense of Intoxication Sixty-Third Ground for Relief — The trial court denied Petitioner Bedford his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments when the trial court gave an instruction on the defense of intoxication at the conclusion of the guilt phase of Petitioner's trial which unconstitutionally shifted the burden to Petitioner Bedford to establish the absence of intent or purpose.
In his sixty-third ground for relief, petitioner argues that the trial court erred when it instructed the jury that the burden of proof was on petitioner to prove the defense of intoxication by a preponderance of the evidence. Petitioner argues that the court's instruction required him to prove his innocence. Although this ground for relief is couched in terms of a challenge to the trial court's instruction to the jury, petitioner is in essence challenging the constitutionality of Ohio Revised Code Ann. § 2901.05(A), which places the burden of proof on the accused to establish the existence of an affirmative defense by a preponderance of the evidence. For the following reasons, the Court finds petitioner's arguments to be without merit.
Under Ohio law, intoxication is an affirmative defense. See Mann v. Gray, 622 F. Supp. 1225, 1230 (N.D. Ohio 1985). With respect to affirmative defenses, section 2901.05(A) of the Ohio Revised Code provides as follows:
Every person accused of an offense is presumed innocent until proven guilty beyond a reasonable doubt, and the burden of proof for all elements of the offense is upon the prosecution. The burden of going forward with the evidence of an affirmative defense, and the burden of proof, by a preponderance of the evidence, for an affirmative defense, is upon the accused.
O.R.C. § 2901.05(A). In Martin v. Ohio, 480 U.S. 228 (1987), the United States Supreme Court considered this precise version of O.R.C. § 2901.05(A) and found that it did not run afoul of constitutional due process. Specifically, the Supreme Court held that the Due Process Clause of the Fourteenth Amendment does not forbid placing the burden of proving an affirmative defense on the accused so long as the state is still required to prove all the elements of the offense beyond a reasonable doubt. Stated differently, " Martin teaches that, so long as the state is required to prove each element of a crime beyond a reasonable doubt, requiring the defendant to shoulder the burden of proving certain defenses does not inevitably violate due process, even if proof of an affirmative defense may tend to negate an element of the crime." Rhodes v. Brigano, 91 F.3d 803, 808 (6th Cir. 1996).
In the present case, petitioner raised the affirmative defense of intoxication. At the close of the guilt phase of his trial, the trial court provided the following instruction to the jury regarding the defense of intoxication:
If you find by a preponderance of the evidence or greater weight of the evidence that by reason of intoxication the mind of the accused was in such condition that he was not capable of forming a purpose to kill, then he is not guilty of either aggravated murder or murder as purpose is an essential element of those offenses.
If you find by a preponderance or greater weight of all the evidence that by reason of intoxication the mind of the accused was in such condition that he was not capable of prior calculation and design, then he is not guilty of aggravated murder.
If you find by a preponderance or greater weight of all the evidence by reason of intoxication the mind of the accused was in such condition that he was not capable of having the requisite knowledge to kill, then he is not guilty of voluntary manslaughter as knowledge is an essential element of that offense.
If the defendant fails to establish the defense of intoxication, the State still must prove all the elements of the crime charged or any lesser included offense by proof beyond a reasonable doubt.
(Tr. Trans. at 1624-26). Although these instructions required the jury to determine whether petitioner had met his burden of proof with respect to the defense of intoxication, the instructions also included an admonition to the jury that petitioner's failure to establish an affirmative defense would not relieve the state of its burden to prove every element of the crimes charged. Accordingly, there was no direct or implied shifting of the state's burden to prove the charges against petitioner beyond a reasonable doubt, and petitioner's sixty-third ground for relief is without merit.
E. Weighing Aggravating and Mitigating CircumstancesTwenty-Eighth Ground for Relief — Petitioner Bedford was denied his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments because the State failed to prove that the aggravating circumstance outweighed the mitigating factors beyond a reasonable doubt in Petitioner's case.
In his twenty-eighth ground for relief, petitioner claims that the State of Ohio failed to prove that the aggravating circumstance outweighed the mitigating factors beyond a reasonable doubt, and therefore, his sentence violates state and federal law. With respect to this claim, petitioner argues that he presented extensive evidence of mitigating factors during the penalty phase of his trial, and therefore, the evidence did not warrant a sentence of death. (Am. Pet., doc. no. 79, ¶¶ 239-46; Pet. Merit Brief, doc. no. 133 at 71). Respondent argues that petitioner's sentence of death is supported by the evidence.
In reviewing petitioner's claim that the aggravating circumstance did not outweigh the mitigating factors beyond a reasonable doubt, the Court finds that petitioner is essentially raising a sufficiency of the evidence argument. Sufficiency of the evidence questions are governed by the United States Supreme Court's decision in Jackson v. Virginia, 443 U.S. 307 (1979). When a state prisoner challenges the sufficiency of evidence, a federal habeas corpus court must consider whether there was sufficient evidence introduced at trial to allow a rational trier of fact to find guilt beyond a reasonable doubt. Jackson, 443 U.S. at 319. To determine whether the evidence was sufficient to support a conviction as a matter of due process, this Court must consider the evidence in the light most favorable to the prosecution. Id. The prosecution is not affirmatively required to "rule out every hypothesis except that of guilt." Id. at 326. A reviewing court "faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution." Id.; see also Jamison v. Collins, 100 F.Supp.2d 647, 705 (S.D. Ohio 2000) ("A conviction may rest on circumstantial evidence, and a federal habeas corpus court need not rule out all possible interpretations of the circumstantial evidence."), aff'd, 291 F.3d 380 (6th Cir. 2002). A sufficiency of the evidence review, for purposes of federal habeas relief, does not focus on whether the trier of fact made the correct guilt or innocence determination, but rather on whether it made a rational decision to convict or acquit. Herrera v. Collins, 506 U.S. 390, 402 (1993) (clarifying Jackson, 443 U.S. 307 (1979)).
Section 2929.04(c) of the Ohio Revised Code provides that the existence of mitigating factors does not preclude the imposition of a sentence of death. Rather, the mitigating factors must be weighed against the aggravating circumstance the offender was found guilty of committing. Section 2929.03(D)(2) provides that the standard for weighing the aggravating and mitigating factors is as follows:
Upon consideration of the relevant evidence raised at trial, the testimony, other evidence, statement of the offender, arguments of counsel, and, if applicable, the reports submitted pursuant to division (D)(1) of this section, the trial jury, if the offender was tried by a jury, shall determine whether the aggravating circumstances the offender was found guilty of committing are sufficient to outweigh the mitigating factors present in the case. If the trial jury unanimously finds, by proof beyond a reasonable doubt, that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors, the trial jury shall recommend to the court that the sentence of death be imposed on the offender. Absent such a finding, the jury shall recommend that the offender be sentenced to life imprisonment with parole eligibility after serving twenty full years of imprisonment or to life imprisonment with parole eligibility after serving thirty full years of imprisonment.
In this case, the jury was instructed that it could only return a recommendation of death if it found that the aggravating circumstance outweighed the mitigating factors by proof beyond a reasonable doubt. In accepting the recommendation of the jury, the trial court also conducted its own independent weighing of the aggravating and mitigating factors, finding:
Upon full, careful and complete scrutiny of all the mitigating factors set forth in the statute or called to the Court's attention by defense counsel in any manner, and after considering fully the aggravating circumstance which exists and has been proven beyond a reasonable doubt, the Court concludes that the aggravating circumstance has been proven by the prosecution beyond a reasonable doubt to outweigh all the mitigating factors advanced by the defendant.
(Sentencing Trans. at 24).
On appeal, the Ohio Supreme Court independently reweighed the appropriateness of petitioner's sentence of death as required by statute. The court found, after reviewing the evidence in mitigation, that the aggravating circumstance outweighed the mitigating factors beyond a reasonable doubt. In so holding, the court made the following findings:
The jury convicted Bedford on one count of aggravated murder (R.C. 2903.01[A]), that he purposely and with prior calculation and design caused the death of Gwen Toepfert, and one count of murder (R.C. 2903.02[A]), that he purposely caused the death of John Smith.
The jury also found Bedford guilty on the specification to Count One, that he committed aggravated murder as part of a course of conduct that resulted in the purposeful killing of Gwen Toepfert and John Smith (R.C. 2929.04[A][5]). This constitutes the single aggravating circumstance.
We now focus attention on the mitigating factors. A review of the nature and circumstances reveals that Bedford's claim of intoxication is cast in serious doubt by the evidence. He searched for Smith after killing Toepfert. He shot both victims several times. Indeed, after Toepfert was dead, he fired a shot into her pelvic region. He thereafter fled to Tennessee, where he appeared coherent and sober to several witnesses. Therefore, we assign little weight to his claim of intoxication.
Likewise, we give consideration to his claim of emotional stress. The expert testimony indicated that while Bedford was very stressed at the time of examination, he was able to make judgments and distinguish right from wrong. Though he was both alcohol dependent and generally dependent on others for reinforcement, his state of depression at the time of the killing could not be characterized as a mental illness. Finally, Bedford told the examining expert that once he entered the apartment building, he waited to enter the apartment, pondering what to do next. The expert did state that Bedford's depression, if he was incarcerated, was treatable.
With regard to appellant's history, character, and background, the record establishes that Bedford experienced several unfortunate, perhaps tragic, incidents during his lifetime. However, such experiences do not mitigate the crimes he committed.
We find no persuasive evidence that Bedford's victims induced or facilitated his crimes. It cannot be said that Toepfert's rejection of appellant's affections induced or facilitated the killings.
The next factor to consider is whether the offenses would have been committed but for the fact that Bedford was under duress, coercion, or strong provocation. While there is evidence that Bedford was under stress because of the relationship between Toepfert and himself, it cannot be classified as coercion or strong provocation. Likewise, duress generally indicates that some compulsion by threat exists, which is not the case here. Nonetheless, we shall consider as a mitigating factor the claimed stress experienced by Bedford.
Next, we consider whether Bedford, at the time of committing the offenses, lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law due to mental disease or defect. As the expert testimony previously discussed indicates, Bedford could distinguish right from wrong and did not have a mental disease. We give this factor little weight.
Concerning Bedford's youth, he was thirty-six at the time of the killings and we give this factor no weight.
The next factor to consider is the lack of a criminal conviction history. Bedford lacks a significant criminal background and this factor must be given weight.
Finally, in looking at any other relevant factors, we consider Bedford's claim of remorse, his poor communication skills, and the fact that he is the father of six children.
Balancing the mitigating factors enumerated above against the aggravating circumstance, we conclude that the aggravating circumstance outweighs the mitigating factors beyond a reasonable doubt.Bedford, 39 Ohio St.3d at 132-33.
After considering the facts and evidence presented at the mitigation phase of petitioner's trial, the Court concludes that a rational factfinder could have reached the decision that was reached by the jury, the trial judge and the Ohio Supreme Court — that the aggravating circumstance petitioner was found guilty of committing outweighed any mitigating factors by proof beyond a reasonable doubt. The sole aggravating circumstance in this case is the fact that petitioner engaged in a course of conduct which resulted in the purposeful killing of Smith and Toepfert. The jury considered whether the existence of this aggravating circumstance outweighed, beyond a reasonable doubt, the mitigation evidence presented at trial, which included, among other things, the fact that petitioner lacked any prior felony record, that he was under emotional distress at the time of the murders, that he had a history of severe, chronic depression, that he had been classified as borderline mentally retarded, that he had a very dependent personality, and that he suffered from alcoholism. Additionally, petitioner's life had been shaped by many tragic events including the murder of his father, and the death of his mother to cancer. In considering the evidence presented at the mitigation hearing, this Court finds that there was sufficient evidence to support the jury's recommendation. The conclusion that the aggravating circumstance outweighed the mitigating factors is fully supported by the record and is not contrary to law. Accordingly, the Court finds petitioner's twenty-eighth ground for relief to be without merit.
F. Jury Selection
In his forty-third, forty-fourth, and forty-fifth grounds for relief, petitioner asserts that certain rulings by the trial court during voir dire denied him the right to a fair and impartial jury. Specifically, petitioner argues that the trial court placed unconstitutional restrictions on defense counsel's voir dire questioning, improperly excluded for cause prospective jurors who voiced concerns about the death penalty, and impermissibly allowed a juror who had been exposed to pre-trial publicity to remain on the jury. Respondent argues that petitioner's allegations cannot sustain habeas corpus relief. For the reasons that follow, the Court denies each of petitioner's grounds for relief.
1. Restrictions on Voir Dire Questioning Forty-Third Ground for Relief — The court's restrictions on defense counsel's voir dire questioning violated Petitioner's rights of due process, effective assistance of counsel, and a fair trial by an impartial jury under the Sixth and Fourteenth Amendments to the United States Constitution.
In his forty-third ground for relief, petitioner argues that the trial court placed impermissible restrictions on the specific questions that defense counsel could ask during voir dire, as well as the general areas in which defense counsel could inquire. (Am. Pet., doc. no. 79, ¶¶ 350-53). Specifically, petitioner contends that the court limited the ability of defense counsel to ask the potential jurors about their feelings towards capital punishment in general, the factors they might consider mitigating, and the length of prison sentence they would consider serious in a homicide case. Petitioner argues that the trial court's limitations on voir dire interfered with the ability of his counsel to intelligently prepare for and exercise their peremptory challenges, and therefore, denied him the right to a trial by a fair and impartial jury. Respondent asserts that petitioner's claims lack merit, as the trial court merely limited defense counsel's tactical use of voir dire.
On direct appeal, the Ohio Supreme Court held that the trial court did not abuse its discretion by limiting certain areas of inquiry. State v. Bedford, 39 Ohio St. 3d 122, 129 (1988). The court noted that while the trial court did not allow defense counsel to seek commitments from the jurors prior to any evidence having been presented, the court did allow defense counsel to ask questions regarding the statutorily defined mitigating factors, and whether the jurors would consider all mitigation evidence that was presented. See id.
Petitioner's claim is similar to the claim presented in Dennis v. Mitchell, 354 F.3d 511 (6th Cir. 2003). In Dennis, the petitioner argued that his rights to a fair trial and fair sentencing were violated by the trial court's refusal to permit his lawyers to ask questions about specific mitigating factors during voir dire. Id. at 523. The petitioner in Dennis claimed that he should have been permitted to ask jurors whether they would consider his age and lack of prior criminal history as relevant mitigating factors. The trial judge ruled that the petitioner could not ask the jury whether they would find specific factors to be mitigating, but the petitioner could inquire as to whether the jury would listen to and consider mitigating factors, regardless of what they might be. Id.
In denying habeas relief, the Sixth Circuit reiterated that the United States Constitution "requires only that voir dire be conducted in a manner which ensures fundamental fairness." Id. at 524. The scope of voir dire is within the discretion of the trial court and will vary depending on the individual circumstances of each case. Id. (citing Mu'Min v. Virginia, 500 U.S. 415, 425 (1991)). When considering whether certain questioning is constitutionally mandated, "`it is not enough that such questions be helpful,' but rather the `trial court's failure to ask these questions must render the defendant's trial fundamentally unfair.'" Id. at 524 (quoting Mu'Min, 500 U.S. at 425-26). Accordingly, a trial court may limit particularized questions, so long as counsel is "able to question the jurors regarding their ability and willingness to follow the law in the penalty phase." Id. at 525.
Applying those principles to this case, the Court finds that the trial court's limitations on voir dire did not render Petitioner Bedford's trial fundamentally unfair. The process of voir dire in this case was quite lengthy. The questioning of potential jurors spanned five separate days and is recorded in nearly 900 pages and five volumes of trial transcript. The court provided each side with an expansive opportunity to question the potential jurors regarding possible bias or prejudice, and whether they would have difficulty remaining fair and impartial when considering petitioner's case. The trial court permitted the defense to ask the jurors whether or not they would automatically vote for the death penalty just because this case involved a homicide. The Court permitted defense counsel to inquire directly of the potential jurors as to whether they would consider appropriate mitigating evidence as presented by the defense, and whether they would fairly consider all of the evidence presented at the trial.
In reviewing the specific challenges raised by petitioner with respect to voir dire, the Court finds that most of the challenges have little to do with juror bias or the ability of the jurors to be fair and impartial. The Court agrees with respondent that petitioner's real complaint seems to be that the trial judge restricted defense counsel's "tactical use of voir dire." (Resp. Merit Brief, doc. no. 134 at 29). The fact that the trial court did not permit counsel for petitioner to extract promises from the jury regarding whether or not they would impose the death penalty before they had an opportunity to hear evidence in the case is not a violation of petitioner's constitutional rights, as attempts to have jurors announce their verdicts before hearing evidence are improper.
Furthermore, it was not unreasonable for the trial court to prevent defense counsel from specifically inquiring as to whether jurors would find petitioner's alcohol abuse and the fact that his father was murdered to be compelling mitigating evidence. The Court notes that counsel for petitioner was not forbidden from mentioning those factors to the jury. To the contrary, counsel was permitted to ask the jury if they would consider things such as petitioner's limited educational background, the fact that he came from a broken home, that his father was murdered, that he had been treated for cancer, that he had an alcohol problem, and that he was possibly under great emotional distress. (Tr. Trans. at 199-200). What defense counsel was not permitted to do was seek a commitment from the jurors that they would not only consider this information, but that they would consider it to be relevant mitigating evidence. Such questioning amounts to an attempt by defense counsel to try the defense case in voir dire and seek a commitment from the jurors to one side or the other prior to the introduction of actual evidence. The Court notes that the trial court also prohibited such attempts by the prosecution.
Finally, petitioner cannot establish that he was denied a fundamentally fair trial because the trial court restricted his counsel's questioning of the jurors regarding the length of prison sentence they would consider serious in a homicide case. Such questioning would not have provided insight into juror bias or the ability of the jurors to be fair and impartial. Accordingly, the Court finds that petitioner's forty-third ground for relief is without merit.
2. Excusal for Cause Forty-Fourth Ground for Relief — The trial court denied Petitioner Bedford his rights to due process, equal protection, an impartial jury, and freedom from cruel and unusual punishment when the court improperly excused for cause prospective jurors at Petitioner's trial who expressed reservations about the imposition of the death penalty.
In his forty-fourth ground for relief, petitioner argues that the trial court violated his constitutional rights by improperly excluding for cause prospective jurors who expressed reservations about recommending the death penalty, regardless of whether they indicated that they would follow the law and the instructions of the court. Specifically, petitioner claims that a violation of his constitutional rights resulted from the excusal of prospective jurors Tucker, Herweh, Dotterweich and Jordan. Petitioner contends that it was improper to remove these jurors based solely on their views against capital punishment, and the fact that they all expressed general opposition to the death penalty. (Am. Pet., doc. no. 79, ¶ 363). Petitioner argues that the trial court erred by excusing these jurors without providing defense counsel with "ample opportunity to rehabilitate jurors who would have been sympathetic to petitioner at sentencing." (Id. at ¶ 365). According to petitioner, the trial court used "voir dire questioning as the means to rid the jury of anyone who is not in favor of capital punishment." (Pet. Merit brief, doc. no. 133, pg. 59). This Court disagrees.
In rejecting this claim, the Ohio Supreme Court held that the trial court properly excused these jurors after finding that their views on capital punishment would substantially impair their ability to follow the law as jurors. Bedford, 39 Ohio St. 3d at 127-28. In so finding, the Ohio Supreme Court relied on Wainwright v. Witt, 469 U.S. 412 (1985), the controlling United States Supreme Court precedent on this issue. In Wainwright, after a prospective juror in a death penalty case stated that she could not follow the law, the trial court excused her for cause. The Supreme Court upheld the decision, stating that the "juror was properly excused for cause relating to her views on the death penalty, as there was ample support for the trial court's finding that her views would have prevented or substantially impaired the performance of her duties as a juror." Id. at 430. The Supreme Court set forth the appropriate standard for excusing jurors for cause in a death penalty case, stating that a trial court must determine:
whether the juror's views would prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and oaths; in addition to dispensing with any reference to `automatic' decision making, this standard does not require that the juror's bias be proved with unmistakable clarity.Id. at 424.
With that standard in mind, the Court will now examine the transcript of the voir dire proceedings in petitioner's case. In so doing, the Court notes that although petitioner alleges in his Amended Petition that four jurors — jurors Tucker, Herweh, Dotterweich and Jordan — were improperly excluded for cause, he only provides argument in his Amended Petition and merit brief with respect to jurors Tucker and Herweh. Nevertheless, in resolving petitioner's claim, the Court will review the voir dire questioning of all four jurors.
At the beginning of voir dire, the trial court informed the jury that death was a possible punishment in petitioner's case. The trial court asked for an initial showing of hands from any of the jurors who felt that they may have a religious or conscience objection to the death penalty. Among others, Jurors Tucker and Dotterweich raised their hands. (Tr. Trans. 22-23, 67). The Court made a notation to question these jurors more extensively during the individual voir dire.
Of the four jurors whose excusal petitioner challenges, Juror Tucker was the first to be questioned. She was questioned by the court on two occasions, as well as the prosecution and the defense. During this questioning, Juror Tucker unequivocally expressed an inability to recommend a sentence of death and expressed a strong belief against capital punishment. The following exchange occurred between the trial court and Juror Tucker:
Q. [By the court] Let me ask you this: Is this an opposition based upon religious belief, philosophy or what?
A. Not religion, not at all.
Q. [By the court] What's it based —
A. On my own personal feelings. I don't think I could be a part of convicting someone to the death sentence.
. . .
Q. [By the court] Now, let me ask you first of all does it make any difference that you'll only be recommending the penalty? In other words, you as a juror would not actually sentence the defendant to death. . . . Would you make such a recommendation?
A. I don't believe so.
(Tr. Tran. 204-06). When specifically asked by the trial court if she could follow the law, Juror Tucker replied "No." ( Id. at 207).
The trial court gave defense counsel an opportunity to question Juror Tucker. Despite Mr. Breyer's attempts to rehabilitate her, Tucker continued to express her opposition to the death penalty, and state, in no uncertain terms, that she would never be able to recommend the death penalty, regardless of the mitigating or aggravating circumstances involved. Juror Tucker opined that the state "should not have that ability to take the life of another person" and said she would "follow all the laws until such time that I would be asked to say something about the death penalty." ( Id. at 207-08). When asked by Mr. Breyer is she could "think of any particular factual situation where someone would be properly sentenced to death," Juror Tucker replied "No. I do not want to be a part of sentencing someone to death." ( Id. at 212).
Juror Dotterweich also indicated that her opposition to the death penalty would substantially impair her ability to follow the law and perform the duties of a juror in petitioner's case. ( Id. at 535-543). When asked by the trial court to explain her opposition to the death penalty, Juror Dotterweich replied "I think it's a little bit of religion, and it's just something I just never believed in, capital punishment." ( Id. at 536). In response to another question, Juror Dotterweich replied "I don't believe in capital punishment." ( Id.). When asked by the trial court if she could sign a recommendation sentencing someone to death, Juror Dotterweich answered "no, I couldn't do that." ( Id. at 538). When asked by the prosecutor if she would actually refuse to sign a death recommendation, Juror Dotterweich responded "I think I'd almost have to. I just don't believe in capital punishment as a deterrent to crime. I also don't believe that taking another person's life is just." ( Id.).
Despite the fact that Juror Dotterweich informed the court at least six times that she was opposed to the death penalty or could not recommend it, the trial court permitted defense counsel to inquire further and attempt to rehabilitate her. The following exchange occurred:
Q. [Mr. Breyer] I guess, ma'am that the issue is this: If you cannot follow the law and will not follow the law, obviously you are not qualified to sit on this jury. If you will follow the law even though it's an unpleasant task, obviously the defense attorneys want to see some people who aren't wanting to see the defendant go to the electric chair. We don't want a hanging jury, that's the bottom line. I'm asking you to reach in the deep recesses of you heart, soul and mind and consider whether or not in this particular instance you can follow the law, and if it is such that this man should be recommended for the death penalty, go along with that.
A: I can't do it.
Q: All right, thank you, Your Honor. No further questions.
( Id. at 541-42).
Likewise, upon questioning by the court, the prosecutor and defense counsel, Juror Jordan stated four separate times that he could not recommend a sentence of death, regardless of the circumstances. ( Id. at 623-26). Jordan stated "At the last resort, Judge, Your Honor, I could recommend and sign, say, life or maybe — whatever the case might be, but I wouldn't feel justified, Judge, Your Honor, to sign a death." ( Id. at 623). Jordan also informed the court "I've been praying over this, Judge, Your Honor, and I can't do that." ( Id. 625).
The Court is convinced that petitioner's constitutional rights were not violated by the excusal for cause of Jurors Tucker, Dotterweich and Jordan. These individuals unmistakably conveyed to the court that they were unwilling to follow the law and fulfill the obligations of jurors in petitioner's case. They could not have served as fair and impartial jurors and it was not constitutional error to exclude them.
When the Ohio Supreme Court examined the questioning of Juror Herweh, the court found that his excusal presented a closer question. Ultimately, however, the Ohio Supreme Court concluded that the trial court acted reasonably in excluding him from the jury for cause. In reviewing the record of his questioning, this Court agrees. The sum of Juror Herweh's questioning reveals that ultimately, he would not have been able to follow the law and perform the duties of a juror if it required him to recommend a sentence of death.
The following exchange occurred between the trial court and Juror Herweh:
Q. [By the court] Assuming that you have found that the aggravating factors outweigh the mitigating factors, will you sign the recommendation of the death penalty?
A. I have my doubts that I would because I don't feel that I would really have the knowledge being a novice, that I could condemn somebody —
Q. * * * Now, only you can tell us, and you've got to tell us now because we've got to know now. We can't know later. Will you or won't you sign that recommendation if you reach that point, or are you unable definitely to tell us whether you would or wouldn't?
A. I definitely don't think that I would be able to sign such a waiver.
( Id. at 690).
The trial court permitted defense counsel to inquire of Juror Herweh:
Q. [By Mr. Breyer] Now, sir, you indicated, I believe in response to the Judge's question, that you would have difficulty recommending a verdict of — signing your name to a verdict form which recommended that the Judge impose the death penalty.
A. This is true.
( Id. at 694).
The trial court inquired once again:
Q. Well, now can you tell us that you will sign a recommendation of the death penalty if the law — if the aggravating circumstances outweigh the mitigating factors? Can you tell us you will or won't, or you don't know?
A: I don't think I would. I don't believe I would sign the statement putting anyone to death.
( Id. at 696).
Here, the trial court carefully questioned Juror Herweh to determine whether he could properly fulfill his obligations as a juror. As the Supreme Court recognized in Witt, the standard for determining whether a juror should be dismissed for cause "does not require that a juror's bias be proved with `unmistakable clarity.'" Witt, 469 U.S. at 424. Accordingly, "there will be situations where the trial judge is left with the definite impression that a prospective juror would be unable to faithfully and impartially apply the law." Id. In those circumstances, "deference must be paid to the trial judge who sees and hears the juror." Id.; see also Dennis v. Mitchell, 354 F.3d 511, 522 (6th Cir. 2003) ("[W]here the trial court is left with a definite impression that a prospective juror would be unable to faithfully and impartially apply the law, deference must be given to the trial judge who sees and hears the prospective juror.").
This Court agrees that some deference is due to the trial court in this case. Although Juror Herweh did not state his bias against the death penalty with "unmistakable clarity," he expressed a very strong unwillingness to recommend death as a penalty, regardless of the circumstances. This unwillingness is evident in Juror Herweh's response that "I don't believe I would sign the statement putting anyone to death." Petitioner cannot establish that his was denied a fundamentally fair trial by the excusal of Juror Herweh from the jury.
After a careful consideration of the record in this case, this Court finds that petitioner cannot establish that the trial court applied an unconstitutional standard for determining whether to exclude prospective jurors for cause based upon their opposition to capital punishment. It is evident from the record that the views of these four prospective jurors would have prevented or substantially impaired their ability to perform the essential functions of jurors in this capital case. Therefore, the Court overrules petitioner's forty-fourth ground for relief.
3. Exposure to Publicity Forty-Fifth Ground for Relief — Petitioner Bedford was denied his right under the Fifth, Sixth, Eighth, and Fourteenth Amendments because the trial court allowed a juror who, during the trial proceedings, had exposed himself to publicity about the trial, to continue as a member of the jury.
In his forty-fifth ground for relief, petitioner argues that his constitutional rights were violated because the trial court refused to remove Juror Burkhart from petitioner's jury once it became apparent that Burkhart had been exposed to publicity about petitioner's trial. Petitioner agues that Burkhart continued to expose himself to extrajudicial information about petitioner's case in violation of an express order by the trial court, and thereby demonstrated that he was unwilling to follow the instructions of the court and be fair and impartial. (Am. Pet., doc. no. 79, ¶¶ 367-71). Respondent asserts that no constitutional error occurred when the trial judge allowed Burkhart to remain on the jury, because Burkhart indicated that he could still remain impartial. (Resp. Merit Brief, doc. no. 134 at 31).
After opening statements but before the first witness was called, Juror Burkhart informed the court that he had heard a radio report concerning petitioner's trial earlier that morning. According to Burkhart, the report stated that petitioner's double-murder trial had begun, and when he heard mention of petitioner's trial, he turned the radio off. (Tr. Trans. at 946). However, at some point, Burkhart turned the radio back on and there was a second mentioning of petitioner's trial. At this point, Burkhart stated that he "blocked it out" and "I just covered my ears when it started." ( Id. at 946-47). According to Burkhart, the only information he heard was petitioner's name and that his trial had started. ( Id.). In order to clarify any confusion, the trial court instructed the jury at the end of the day that they were no longer permitted to listen to the radio or to the local news. ( Id. at 1135-36).
The Ohio Supreme Court considered and rejected petitioner's claim of juror bias. Bedford, 30 Ohio St. 3d at 129-30. According to the Ohio Supreme Court, "[t]he record reveals that the juror learned only information that he already knew. The juror knew the name of the defendant, that a double murder was involved, and that the trial was to begin that morning." Id. The court held that petitioner could not establish any prejudice or harm resulting from Juror Burkhart's inadvertently hearing two references to petitioner's trial. Id. at 130.
As the Sixth Circuit noted in Williams v. Bagley, 380 F.3d 932, 945 (6th Cir. 2004), "[t]here is no per se rule that mere exposure to media reports about a case merits exclusion of a juror." (quoting McQueen v. Scroggy, 99 F.3d 1302, 1319 (6th Cir. 1996)). Rather, "in order to merit disqualification of a juror, the media reports must engender a predisposition or bias that cannot be put aside, requiring the jury to decide a case one way or the other." McQueen, 99 F.3d at 1319. In most cases, a "defendant's right to an impartial jury is secured if a juror attests that he can set aside any information he has obtained and render a verdict based on the evidence presented in court." Williams, 380 F.3d at 945 (citing DeLisle v. Rivers, 161 F.3d 370, 382 (1998)). However, there may be "extraordinary" cases where the trial atmosphere has been "utterly corrupted by press coverage." Id. Under those circumstances, "a court must presume that pre-trial publicity has engendered prejudice in the members of the venire." Id.; see also Sheppard v. Maxwell, 384 U.S. 333, 358-63 (1966) (finding that "inherently prejudicial publicity saturated the community" and a "carnival atmosphere" reigned at trial). Accordingly, the issue is not whether a juror has heard information about a case, but whether the juror has "such fixed opinions" that the juror "could not judge impartially the guilt of the defendant." White v. Mitchell, 431 F.3d 517, 531 (6th Cir. 2005).
In reviewing the record, the Court agrees that petitioner cannot establish that his constitutional rights were violated by Juror Burkhart remaining on his jury. Petitioner Bedford fails to present this Court with any evidence tending to suggest that Juror Burkhart continued to intentionally expose himself to media coverage of petitioner's trial, or that Juror Burkhart was unable to be fair and impartial. The record indicates that the juror's exposure to media coverage, via a radio program, was slight and isolated. Burkhart informed the court the same morning that the report aired that he had heard a portion of the report. He stated that when he first heard the report, he turned the radio off. He stated that later that morning, the radio station aired for a second time that petitioner's trial was starting and he "blocked it out." Moreover, the record also indicates that Burkhart did not learn any information that he did not already know — he knew that petitioner's trial was to begin that day and he already knew that petitioner's case involved the killing of two people. Most importantly, when asked by the trial court if he could "put aside whatever you heard and decide this on the facts developed from this courtroom," Juror Burkhart replied "yes." (Tr. Trans. at 946-47). For these reasons, the Court overrules petitioner's forty-fifth ground for relief.
G. Evidentiary Rulings
In his thirty-fifth, forty-seventh, forty-ninth, and fifty-fourth grounds for relief, petitioner challenges certain evidentiary rulings by the trial court. As a general matter, errors of state law, such as the improper admission of evidence, do not support a writ of habeas corpus. See Estelle v. McGuire, 502 U.S. 62 (1991); see also Giles v. Schotten, 449 F.3d 698, 704 (6th Cir. 2006). To be entitled to habeas relief, a petitioner must demonstrate that an evidentiary ruling violated more than a state rule of evidence or procedure. Rather, in order to prevail, a petitioner must show that the evidentiary ruling was "so egregious that it resulted in a denial of fundamental fairness." Giles, 449 F.3d at 704 (citing Baze v. Parker, 371 F.3d 310, 324 (6th Cir. 2004)). Stated differently, "`[e]rrors by a state court in the admission of evidence are not cognizable in habeas proceedings unless they so perniciously affect the prosecution of a criminal case as to deny the defendant the fundamental right to a fair trial.'" Biros v. Bagley, 422 F.3d 379, 391 (6th Cir. 2006) (citing Roe v. Baker, 316 F.3d 557, 567 (6th Cir. 2002)). A state court evidentiary ruling does not violate due process unless it "offend[s] some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental.'" Giles, 449 F.3d at 704 (citing Coleman v. Mitchell, 268 F.3d 417, 439 (6th Cir. 2001)). It is with this standard in mind that the Court will address petitioner's claims of trial court error.
1. Petitioner's Statement Thirty-Fifth Ground for Relief — The trial court denied Petitioner Bedford his rights to due process, freedom from illegal seizure, an impartial jury and the effective assistance of counsel by admitting at trial the statements taken from Petitioner Bedford while he was in custody, and in failing to grant the motion to suppress.
In his thirty-fifth ground for relief, petitioner argues that his initial arrest in Tennessee lacked probable cause, and therefore, his statements to police after that arrest should have been suppressed. (Am. Pet., doc. no. 79, ¶¶ 295-302). Respondent contends petitioner's arrest was constitutionally valid, because the authorities in Tennessee had probable cause to make a warrantless arrest of petitioner based on his own statements. For the following reasons, the Court finds petitioner's argument to be without merit.
The Fourth Amendment to the United States Constitution does not require that a law enforcement officer have a warrant in order to make an arrest. Rather, the test for whether an arrest is constitutionally valid is "whether, at the moment the arrest was made, the officers had probable cause to make it — whether at that moment the facts and circumstances within their knowledge and of which they had reasonably trustworthy information were sufficient to warrant a prudent man in believing that the petitioner had committed or was committing an offense." Beck v. Ohio, 379 U.S. 89, 91 (1964); see also United States v. Dotson, 49 F.3d 227, 230 (6th Cir. 1995). Probable cause "`has come to mean more than bare suspicion,' but `less than evidence which would justify condemnation or conviction.'" United States v. Thomas, 11 F.3d 620, 627 (6th Cir. 1993) (quoting Brinegar v. United States, 338 U.S. 160, 175 (1949)).
The record in this case indicates that petitioner fled to Tennessee in the hours after the deaths of John Smith and Gwen Toepfert. Upon arriving in Tennessee, petitioner went to the home of Jimmy Joe Pennington, an individual that he had not seen in approximately seventeen years. (Suppression Hrg. Trans. at 82). Petitioner told Pennington that he was in Tennessee on vacation. ( Id. at 84). Several hours later, the two men were driving and petitioner told Pennington that he was "in trouble" and had killed two people. ( Id. at 88). Pennington asked petitioner to turn himself in to the authorities. Petitioner stated that he wanted to go back to Ohio and turn himself in to the authorities in Cincinnati. ( Id.).
Pennington stopped at a gas station and told petitioner that he needed some gas. ( Id.). Pennington went inside and asked the cashier to call the county sheriff's office and tell them that he had someone in his car who was claiming to have killed two people. ( Id. at 89). Pennington asked the cashier to tell the sheriff's office to send a deputy to his home and that he, Pennington, would have the suspect there. ( Id.). Pennington also requested that the sheriff's office hurry as he was afraid petitioner would run. ( Id.). When the two men arrived back at Pennington's home, petitioner asked Pennington if he had turned him in. Pennington replied that he had done so. ( Id. at 90).
Approximately ten minutes later, two deputies from the Scott County Sheriff's Department arrived at Pennington's house. ( Id.). One of those deputies was Deputy John Judy. Deputy Judy testified at the suppression hearing that he approached Pennington's vehicle. At that time, Pennington told Deputy Judy that petitioner was in trouble and needed to talk to him. ( Id. at 94). Deputy Judy asked petitioner his name. ( Id.). Petitioner provided his name and said that he was from Cincinnati, Ohio. Deputy Judy then asked petitioner, "Can we help you in any way or manner?" ( Id.). Petitioner dropped his head and stated "I killed two people in Cincinnati earlier in the day." ( Id.). The deputies asked petitioner to step out of the vehicle and asked petitioner if he was armed. Petitioner replied that he was not. The deputies escorted petitioner to their patrol car, read him his Miranda rights, and took him to the Scott County jail. ( Id.). Deputy Judy testified at the suppression hearing that petitioner was not free to leave once he had informed the deputies that he had killed two people. ( Id. at 95).
Once petitioner arrived at the Scott County jail, he was interviewed by Detective Sherman Fetterman after he was read his Miranda rights a second time. Petitioner made a statement implicating himself in the murders. Detective Fetterman took notes during that interview and read them back to petitioner at the conclusion of the interview. Petitioner stated that he did not wish to make any changes to the statement. ( Id. at 97). Subsequently, officers from the Cincinnati Police Department arrived in Tennessee with warrants for petitioner's arrest charging him with the homicides. Officer Joe Hoffman of the Cincinnati Police Department read petitioner his Miranda rights a third time and interviewed petitioner. That interview was tape recorded.
At the suppression hearing, counsel for petitioner clarified that they were only challenging the initial arrest and statement that petitioner made to Detective Fetterman. Counsel stated that they were not challenging the statement that petitioner gave to the Cincinnati police officers. Counsel stated that they were convinced that the arrest warrants obtained by the Cincinnati officers were based on information obtained at the crime scene and from interviewing witnesses in Cincinnati and were not based "upon anything done by the officers in Tennessee." ( Id. at 78-79). As such, counsel conceded that the Cincinnati officers acted appropriately by taking petitioner into their custody pursuant to the valid arrest warrants and then subsequently interviewing petitioner after advising him of his Miranda rights once again.
Petitioner's claim that his arrest lacked probable cause is wholly lacking in merit. Here, the arresting officers had much more than mere suspicion that petitioner was involved in criminal activity. The officers were entitled to take petitioner's words at face value and consider his statement that he had just killed two people to be reasonably trustworthy information. Moreover, Pennington testified that petitioner wanted to turn himself in. Once he learned that law enforcement officers were on their way, petitioner made no attempt to flee the scene. He waited for the officers to arrive and essentially turned himself in. The fact that petitioner hung his head as if to show remorse when Deputy Judy inquired as to whether petitioner needed any help bolstered the credibility of petitioner's statement that he had just killed two people. Accordingly, there was probable cause for petitioner's arrest and the incriminating statements made by petitioner after his arrest were lawfully obtained.
The Court notes, however, that even if the initial arrest lacked probable cause, and the Court finds that it did not, petitioner can hardly argue that the outcome of his trial would have been any different if his initial statement had not been admitted into evidence. Much of the information obtained from petitioner in the first interview was also obtained during petitioner's interview with the Cincinnati police officers, and petitioner's counsel did not object to that statement being admitted into evidence. Additionally, petitioner's statement that he had killed two people earlier that day was also properly admitted through the testimony of Jimmy Joe Pennington. Finally, the admission of petitioner's initial statement did not ultimately affect the outcome of his trial as the evidence of his guilt, including an eye-witness account, was significant. For these reasons, the Court finds petitioner's thirty-fifth ground for relief to be without merit.
2. Sherman Fetterman's Testimony Forty-Seventh Ground for Relief — The trial court denied Petitioner Bedford his rights to due process, equal protection, and an impartial jury under the Fifth, Sixth, Eighth, and Fourteenth Amendments when the court allowed a State's witness to read aloud from a written statement of Petitioner Bedford.
In his forty-seventh ground for relief, petitioner claims that the trial court erred in allowing a witness for the prosecution to read aloud from the witness's written notes of his interview with petitioner. The facts relevant to this claim are as follows. At petitioner's trial, the state called Sherman Fetterman of the Madison County Tennessee Sheriff's Department. Detective Fetterman conducted an interview with petitioner when petitioner was apprehended in Tennessee. Fetterman testified that petitioner said he could not read or write very well so Fetterman took notes of his interview with petitioner and wrote down exactly what petitioner told him in narrative form. (Tr. Trans. at 1253-1255). After taking the notes, Fetterman read them back to petitioner and asked petitioner if he agreed with the statement. Petitioner stated that he did and signed the statement with a "x." (Tr. Trans. at 1261).
During the course of Fetterman's testimony, the prosecutor asked him if he could remember "word for word and sentence by sentence" what petitioner had told him during the interview. (Tr. Trans. at 1261). Fetterman testified that he could not do so without referring to his notes. The trial court permitted Fetterman to read and reference his notes of the interview with petitioner in order to refresh his recollection. (Tr. Trans. at 1262).
Petitioner argues that "permitting the witness to read from his notes allowed the witness to create the misimpression that the officer had recorded verbatim Petitioner's statement and that Petitioner stated that he had lain in wait to kill the two victims." (Am. Pet., doc. no. 79, ¶ 410). This Court disagrees. Permitting a witness to use his notes to refresh his recollection is not unusual and is consistent with Ohio's evidentiary rules. Detective Fetterman testified that he had a recollection of his interview with petitioner but that he would need to refer to his notes in order to relay everything that petitioner said during the interview. The notes were provided to defense counsel for examination and defense counsel cross-examined Fetterman extensively regarding the notes. Petitioner cannot show that the trial court's decision to allow Fetterman to read from his notes has resulted in the denial of fundamental fairness, thereby violating his right to due process. Accordingly, the Court finds this ground for relief to be without merit. 3. Photographs Forty-Ninth Ground for Relief — The trial court denied Petitioner Bedford his due process, equal protection, and impartial jury rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments by admitting cumulative gruesome photos at Petitioner's trial.
In his forty-ninth ground for relief, petitioner alleges that he was denied a fundamentally fair trial when the trial court permitted the state to introduce cumulative, gruesome crime scene photographs during both the guilt and penalty phases of his trial. In particular, petitioner challenges the admission of color close-ups that "show one victim lying with his head in a pool of blood," and photographs that "show the female victim with a portion of her bowels protruding." (Am. Pet., doc. no. 79, ¶ 439). Petitioner contends that the photographs "inflamed the emotions of the jury and distracted the jury from its duty of determining Petitioner's guilt." ( Id. at ¶ 437). According to petitioner, the prejudicial effect of the photographs outweighed any probative value because there was testimony concerning all of the matters depicted in the photographs, and therefore, they were not essential to the state's case. ( Id. at ¶ 435). Petitioner also asserts that it was improper for the trial court to admit the photographic evidence in the penalty phase of his trial.
The admission of "gruesome" photographs of the decedent in a murder case generally does not justify collateral relief, even when the evidence is cumulative and likely designed more to inflame the jury than to prove an essential element of the prosecution's case. See Gonzalez v. DeTella, 127 F.3d 619, 621 (7th Cir. 1997). A federal court will only grant relief when the introduction of the photographs at issue denies a petitioner the right to due process and a fundamentally fair trial. See Biros, 422 F.3d at 391 (finding no constitutional error where trial court allowed photographs of the victim's "severed head, her severed head held near her torso and severed breast, and her torso with the severed head and severed breast replaced on the torso"). Photographs offered for a proper evidentiary purpose, such as to prove motive, intent or purpose, are not rendered inadmissible merely because they bring vividly to the jurors the details of a gruesome or shocking crime. Photographs of a decedent's body are relevant, as they tend to show that the crime charged by the indictment took place.
In the instant matter, petitioner cannot show that the admission of the photographs at issue deprived him of due process or the right to a fair trial. The photographs were relevant to the state's case as they illustrated the testimony of witnesses who described the crime scene and revealed the number and location of the gunshot wounds, which was relevant to the issue of intent. The photographs of Gwen Toepfert's abdominal wound, which was inflicted after her death, were probative of petitioner's state of mind. Additionally, the photographs assisted witnesses such as the coroner who testified that the photographs "depict far more accurately than my words can depict the precise location and appearance of those injuries." (Tr. Trans. at 1404). Even if the state could have proven the elements of this offense without the use of photographs, there is no rule of law, and certainly no rule of constitutional law, that limits the prosecutor to one piece of evidence in support of each element of the offense charged. Furthermore, the Court is confident that the admission of the photographs did not prejudice the outcome of petitioner's trial, as there was ample evidence adduced of petitioner's guilt. Petitioner is not entitled to habeas relief on this claim.
4. Fingerprint EvidenceFifty-Fourth Ground for Relief — Petitioner Bedford was denied his rights to due process, equal protection, an impartial jury, and the effective assistance of counsel under the Fifth, Sixth, Eighth, and Fourteenth Amendments when the trial court allowed the prosecutor to present testimony concerning fingerprint evidence after defense counsel had already been informed in discovery that no fingerprint evidence had been found.
In his fifty-fourth ground for relief, petitioner claims that the trial court abused its discretion by allowing the prosecutor to present testimony concerning inconclusive fingerprint evidence after the prosecutor had informed defense counsel, pursuant to a motion for discovery, that no fingerprint evidence had been found. The facts surrounding this ground for relief are as follows. At trial, the state called Police Specialist John Zompero, a fingerprint technician and latent fingerprint examiner for the Cincinnati Police Department. (Tr. Trans. at 1168-94). Zompero testified that he was called to the homicide office at the Cincinnati police department to examine a revolver and a shotgun for possible fingerprint evidence. ( Id. at 1171). Zompero testified that he found partial, though unidentifiable, fingerprints on the firearms. Specifically, Zompero found ridge formations on one of the shells that was in the revolver, and he found some latent tracings on the barrel of the shotgun. ( Id. at 1174; 1183). Zompero testified that the ridge formations and latent tracings were not clear enough to identify a fingerprint or to use as a comparison. ( Id.).
Defense counsel objected to Zompero's testimony and the court held a bench conference. ( Id. at 1177). Defense counsel stated that they were unaware that any form of prints had been found on either of the weapons and moved to exclude Zompero's testimony. The prosecutors countered that defense counsel had been informed on more than one occasion that Specialist Zompero did conduct tests on the firearms. ( Id. at 1178). The prosecutors also asserted that they had not planned to call Specialist Zompero as a witness and use the inconclusive evidence, but they changed course after defense counsel challenged the investigative procedures employed in the case during cross examination of the state's other witnesses. ( Id.). The prosecutors and defense counsel disagreed over whether the prosecutors had told defense counsel no prints were found or that no usable prints were found. ( Id. at 1181). The court ruled that Zompero's testimony was admissible but offered petitioner a continuance. Defense counsel declined the court's offer. ( Id.).
Petitioner now speculates that had he known of the evidence prior to trial, he would have had defense experts examine it, and those experts may have found evidence that Specialist Zompero did not. In particular, petitioner asserts that his experts may have been able to find evidence supporting his theory that John Smith held the weapon at some point during the confrontation. (Pet. Merit Brief, doc. no. 133 at 66). The Court finds this argument speculative at best. There is no evidence to support the suggestion that any other fingerprint expert would have come to a conclusion opposite that of Specialist Zompero regarding the usability of the prints. To the contrary, every indication from the record indicates that Specialist Zompero, through his twenty-nine years of experience, education and training, was certainly competent to examine the firearms. To that end, defense counsel stipulated to his qualifications as a fingerprint technician. Moreover, there is evidence in the record indicating that defense counsel knew, at a minimum, that the firearms were examined for latent prints. Counsel could have requested their own independent investigation prior to trial but failed to do so. Even if counsel did not know that inconclusive, unusable partial prints were found, the court offered petitioner a continuance in order to have a defense expert examine the evidence.
Petitioner simply cannot demonstrate that he was prejudiced by Specialist Zompero's testimony regarding the inconclusive ridges and latent tracings that were found. On cross-examination, defense counsel established that Specialist Zompero was unable to determine whether petitioner or John Smith had ever touched the shotgun. ( Id. at 1192). Considering the inconclusive nature of this evidence, petitioner is hard pressed to claim that it added much to the state's case or that its admission deprived him of due process. The fingerprint evidence was simply offered by the state to show the thoroughness of the police investigation in response to defense counsel's cross-examination of other witnesses. Accordingly, the Court cannot conclude that Specialist Zompero's testimony denied petitioner the right to a fair trial.
H. Constitutionality of the Ohio Death Penalty Scheme Sixty-Fourth Ground for Relief — Ohio's statutory provisions governing its capital punishment scheme violate the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. These provisions are unconstitutional on their face and as applied to Petitioner Bedford.
In his sixty-fourth claim for relief, petitioner raises a number of constitutional challenges to Ohio's capital punishment scheme. (Am. Pet., doc. no. 79, ¶¶ 588-626). At the outset, the Court notes that petitioner dedicates several pages of his merit brief to a discussion of how Ohio's death penalty scheme violates various provisions of international law and is unconstitutionally vague. (Pet. Merit Brief, doc. no. 133, at 80-93). However, these claims, which are raised in the Amended Petition as grounds sixty-five and sixty-six, were previously determined by this Court to be procedurally defaulted in the Court's Opinion and Order of May 2, 2000. (doc. no. 130). Accordingly, the Court will not address the merits of those defaulted claims. Respondent contends that the remainder of petitioner's constitutional challenges are foreclosed by Sixth Circuit precedent. This Court agrees.
With respect to petitioner's remaining claims, the Court notes that the Court of Appeals for the Sixth Circuit has upheld the constitutionality of Ohio's death penalty statutes and rejected each of the constitutional challenges raised or alluded to by petitioner. See Williams v. Bagley, 380 F.3d 932, 962-66 (6th Cir. 2004); Smith v. Mitchell, 348 F.3d 177, 214 (6th Cir. 2003); Buell v. Mitchell, 274 F.3d 337, 367-70 (6th Cir. 2001); Byrd v. Collins, 209 F.3d 486, 539 (6th Cir. 2000), cert. denied, 531 U.S. 1082 (2001)). Of Ohio's capital punishment scheme, the Sixth Circuit remarked:
We note that the Ohio death penalty statute includes a number of capital sentencing procedures that the United States Supreme Court held in Gregg v. Georgia, 428 U.S. 153, 188-95 (1976), specifically to reduce the likelihood of arbitrary and capricious imposition of the death penalty. These procedures include: (1) consideration of a pre-sentence report by the sentencing authority; (2) jury sentencing where the jury is adequately informed and given meaningful standards to guide its use of the information; (3) a bifurcated guilt phase/sentencing phase trial; (4) weighing of aggravating circumstances and mitigating factors; (5) a sentencing decision based on specific findings; and (6) meaningful appellate review.Buell v. Mitchell, supra, 274 F.3d at 367. It is against this backdrop that the Court will consider Petitioner Bedford's various challenges.
Petitioner first argues that Ohio's death penalty statutes are constitutionally infirm because they result in the gratuitous infliction of suffering and do not serve the state's interests in deterrence, incapacitation of the offender and retribution. To the extent that petitioner is arguing that capital punishment in general, and Ohio's capital punishment scheme specifically, is cruel and unusual because it is excessive, petitioner's argument must fail under Gregg v. Georgia, 428 U.S. 153, 179-82. In Gregg, the Supreme Court considered all of these arguments and held that the punishment of death does not invariably violate the Constitution, in that it is neither excessive nor disproportionate. See also Smith v. Mitchell, supra, 348 F.3d at 214 (rejecting argument that death penalty is cruel and unusual per se because it is excessive); Buell v. Mitchell, supra, 274 F.3d at 367, 370 (same); Greer v. Mitchell, 264 F.3d 663, 690 (6th Cir. 2001), cert. denied, 535 U.S. 940 (2002).
Petitioner next argues that Ohio's capital punishment scheme violates the Eighth and Fourteenth Amendments because it affords prosecutors broad discretion as to whether to seek capital indictments, thereby allowing for arbitrary and discriminatory charging decisions. However, this argument finds no support in the law as the Sixth Circuit has consistently rejected this claim. See Williams v. Bagley, 380 F.3d 932, 962-66 (6th Cir. 2004) (rejecting petitioner's argument that prosecutorial discretion with respect to when to seek the death penalty is unconstitutional); Wickline v. Mitchell, 319 F.3d 813, 824 (6th Cir. 2003) (same). Absent facts to the contrary, it cannot be assumed that prosecutors will be motivated by factors other than the strength of their case and the likelihood that the jury will recommend death when making charging decisions. Therefore, Petitioner's argument is without merit.
Petitioner also argues that the death penalty is disproportionately inflicted on blacks, rendering the imposition of capital punishment arbitrary and capricious on one hand, and discriminatory on the other. However, the Sixth Circuit has consistently rejected attempts to demonstrate that race plays a part in the application of capital punishment in Ohio. See, e.g., Smith v. Mitchell, 348 F.3d 177, 211 (6th Cir. 2003) (rejecting argument that "the death penalty is disproportionately applied to blacks"). Greer v. Mitchell, 264 F.3d 663, 690 (6th Cir. 2001) (holding that petitioner "failed to demonstrate a constitutionally significant risk of racial bias affecting the Ohio capital sentencing process"); Coleman v. Mitchell, 268 F.3d 417, 441-42 (6th Cir. 2001) (same). Accordingly, this claim must fail.
The next challenge raised by petitioner is that Ohio's death penalty scheme, by virtue of not requiring premeditation or deliberation as the culpable mental state for defendants in all capital cases, fails to narrow the class of offenders deserving of the death penalty by allowing a death sentence to be imposed in a "felony murder" case upon less proof than would be required for "prior calculation murders." Petitioner argues that, in effect, every defendant who is convicted of a felony murder is automatically eligible to receive a death sentence, and the aggravating circumstance merely repeats what the jury would have necessarily found in order to convict the defendant of the underlying felony. Stated differently, petitioner contends that Ohio's felony murder statutory provisions fail to narrow the class of death-eligible offenders by allowing an aggravating circumstance merely to repeat an element of the underlying offense of aggravated murder.
To the extent that petitioner is arguing that Ohio's felony-murder statute fails to provide the narrowing function required by the Eighth Amendment, his argument is foreclosed by Sixth Circuit precedent. In Roe v. Baker, 316 F.3d 557 (6th Cir. 2002), the Sixth Circuit addressed this very issue. In rejecting the petitioner's claim, the Court held that "the Ohio Legislature narrow[ed] the class of felony murders subject to the death penalty by excluding those who commit [murder in the course of an] arson, robbery, burglary, escape, unless they are charged with a different aggravating circumstance." Id. at 570 (citing Scott v. Mitchell, 209 F.3d 854, 885 (6th Cir. 2000)).
Further, petitioner's argument challenging the failure of the Ohio death penalty scheme to require premeditation or deliberation as the culpable mental state for all capital defendants is also foreclosed by Sixth Circuit precedent. Citing Tison v. Arizona, 481 U.S. 137, 158 (1987), the Sixth Circuit held in Greer v. Mitchell, supra, 264 F.3d at 691, that "such a conscious desire to kill is not required in order to impose the death penalty." See also Coleman v. Mitchell, supra, 268 F.3d at 442 (holding that imposing death for felony murder, even in the absence of proof of premeditation or deliberation, is consistent with the Eighth Amendment). Accordingly, petitioner's argument is without merit.
Next, petitioner argues that Ohio's capital punishment scheme violates a defendant's rights to due process and the effective assistance of counsel by allowing pre-sentence investigation reports or mental examinations requested by a defendant to be provided to the jury. Petitioner argues that this provision requires a defendant to forfeit his ability to prevent prejudicial, irrelevant and inadmissible material from reaching the jury.
Under Ohio law, a capital defendant is entitled to a pre-sentence investigation and a mental examination. Ohio Rev. Code Ann. § 2929.03(D)(1) (Anderson 2003). However, these reports or examinations are not permitted unless they are requested by the defendant. If a defendant requests an investigation or an examination, the resulting reports must be provided to the court, the jury, and the prosecutor for consideration when sentencing the defendant.
The Sixth Circuit has consistently rejected constitutional challenges to this provision. See Williams, 380 F.3d at 963; see also Cooey v. Coyle, 289 F.3d 882, 925-26 (6th Cir. 2002) (dismissing petitioner's argument that the submission requirement "prevents defense counsel from giving effective assistance and prevents the defendant from effectively presenting his case"); Byrd v. Collins, 209 F.3d 486, 539 (6th Cir. 2000) (rejecting the argument that Ohio's capital punishment scheme "violates defendants' rights to due process and effective assistance of counsel by allowing presentence investigation reports or mental examinations requested by defendants to be provided to the jury").
Next, petitioner argues that Ohio's death penalty scheme is unconstitutional because it sets forth no standard of proof or other guidance for determining mitigating factors or for weighing aggravating circumstances against mitigating factors, and because it requires consideration of aggravating circumstances during the guilt phase of the trial. Petitioner's argument finds no support in the law.
The Constitution does not require that "numeric weights" be assigned to aggravating circumstances and mitigating factors, or that the aggravating circumstances substantially outweigh the mitigating factors, but rather requires only that the sentencer's discretion be directed and limited enough to prevent wholly arbitrary and capricious action. "A capital sentencer need not be instructed how to weigh any particular fact in the capital sentencing decision." Tuilaepa v. California, 512 U.S. 967, 979 (1994); see also California v. Ramos, 463 U.S. 992, 1008-1009 n. 22 (1983); Zant v. Stevens, 462 U.S. 862, 875 (1983); Proffitt v. Florida, 428 U.S. 242, 258 (1976). Ohio's scheme sufficiently enumerates specific factors that the sentencer must evaluate, and a general framework for that evaluation.
The Sixth Circuit rejected similar arguments in Buell v. Mitchell, supra. There, the Sixth Circuit noted that the United States Supreme Court has upheld a capital punishment scheme "that did not enunciate specific factors to consider or a specific method of balancing the competing considerations." Buell, supra, 274 F.3d at 368 (citing Franklin v. Lynaugh, 487 U.S. 164, 172-73 (1988); Zant v. Stephens, 462 U.S. 862, 875 (1983)). Citing Blystone v. Pennsylvania, 494 U.S. 299, 305 (1990), the Sixth Circuit also noted that a death sentence is constitutional if it "`is imposed only after a determination that the aggravating circumstances outweigh the mitigating circumstances present in the particular crime committed by the particular defendant, or that there are no such mitigating circumstances.'" Buell, 274 F.3d at 368 (quoting Blystone, 494 U.S. at 305). The Sixth Circuit recently reiterated its holding in Buell. Addressing the petitioner's argument that Ohio's scheme gives the sentencer too much discretion and fails to define terms such as "weighing" and "mitigating," the Sixth Circuit noted that, "The Constitution contains no such requirements." Smith v. Mitchell, supra, 348 F.3d at 214 (citing Buchanan v. Angelone, 522 U.S. 269, 275-76 (1998)). See also Coleman v. Mitchell, supra, 268 F.3d at 442-43 (holding that Ohio's scheme provides sufficient guidance to the sentencer).
Petitioner's argument that Ohio's scheme, by virtue of requiring proof of the aggravating circumstances during the guilt phase of the bifurcated trial, fails to perform the narrowing function required by the Eighth Amendment has consistently been rejected by the Sixth Circuit. In Coleman v. Mitchell, 268 F.3d at 443, the Sixth Circuit stated that Ohio's scheme was consistent with the Supreme Court's decision in Lowenfield v. Phelps, 484 U.S. 231 (1988). There, the Supreme Court explained:
The use of "aggravating circumstances" is not an end in itself, but a means of genuinely narrowing the class of death-eligible persons and thereby channeling the jury's discretion. We see no reason why this narrowing function may not be performed by jury findings at either the sentencing phase of the trial or the guilt phase.Lowenfield, 484 U.S. at 244-45. The Sixth Circuit reiterated its approval of this aspect of Ohio's scheme in Smith v. Mitchell, supra, 348 F.3d at 214. Accordingly, petitioner's argument must fail.
Petitioner also argues that Ohio's capital punishment scheme creates a mandatory death penalty because it requires a sentence of death where the aggravating factors outweigh the mitigating factors. Petitioner argues that the sentencer should have discretion to decide whether a penalty less than death is appropriate in any given case, even if no mitigation evidence is presented at all. Petitioner contends that this lack of an individualized determination of the appropriateness of the death penalty violates the Eighth and Fourteenth Amendments.
The Sixth Circuit and the United States Supreme Court have rejected this argument as well. In Boyde v. California, 494 U.S. 370 (1990), the petitioner challenged the trial court's penalty phase instruction to the jury that, "[i]f you conclude that the aggravating circumstances outweigh the mitigating circumstances, you shall impose a sentence of death." Id. at 374. The petitioner reasoned that the mandatory nature of that instruction prevented the jury from making an individualized assessment of the appropriateness of the death penalty. The Supreme Court flatly rejected that argument:
Petitioner suggests that the jury must have freedom to decline to impose the death penalty even if the jury decides that the aggravating circumstances "outweigh" the mitigating circumstances. But there is no such constitutional requirement of unfettered sentencing discretion in the jury, and States are free to structure and shape consideration of mitigating evidence `in an effort to achieve a more rational and equitable administration of the death penalty.'Id. at 377 (quoting Franklin v. Lynaugh, 487 U.S. 164, 181 (1988)). Likewise, in Blystone v. Pennsylvania, 494 U.S. 299 (1990), the Supreme Court rejected the petitioner's challenge to a provision in Pennsylvania's death penalty statute requiring the jury to impose death if it found at least one aggravating circumstance and no mitigating circumstances, holding that the statute satisfied the requirement that a capital sentencing jury be allowed to consider and give effect to all relevant mitigating evidence, and that the statute was not "mandatory" insofar as it did not automatically impose death upon conviction for certain types of murder. Id. at 305.
The Sixth Circuit has consistently relied upon Supreme Court precedent to reject arguments similar to those raised by petitioner herein. In Buell v. Mitchell, supra, the Sixth Circuit explicitly rejected the petitioner's argument that Ohio's scheme is constitutionally infirm for failing to provide the sentencing authority with an option to recommend a life sentence when aggravating circumstances outweigh mitigating factors or where no mitigating factors have been established. Buell, 274 F.3d at 367-68; see also Coleman v. Mitchell, 268 F.3d at 442 (holding that Ohio's scheme is not a mandatory death penalty statute in violation of the Eighth Amendment).
Based on the above precedent, the Court must reject Petitioner's argument. Ohio's capital punishment scheme does not create a mandatory death penalty and does not violate the Eighth or Fourteenth Amendments by not providing the sentencer with the option of imposing a life sentence when there are no mitigating factors or when the aggravating circumstances outweigh the mitigating factors. Allowing a sentencer to impose a life sentence even when the aggravating circumstances outweigh the mitigating factors would run afoul of these principles and allow for the very arbitrariness and capriciousness that petitioner purports to condemn, by inviting the sentencer to disregard the sentencing procedures mandated by the state legislature within the confines of the Constitution.
Petitioner next argues that the provisions of Ohio R. Crim. P. 11(c)(3) needlessly encourage the entry of guilty pleas and the concomitant waiver of the rights to a trial by jury, confrontation, and compulsory process. Singling out the provision of Crim.R. 11(c)(3) which permits a trial judge, "in the interests of justice," to dismiss the capital specifications from an indictment when the accused pleads guilty or no contest, petitioner argues that the statute fails to set forth sufficient standards defining the concept of the "interests of justice."
Ohio's scheme is not rendered unconstitutional by the fact that, when a defendant charged with at least one capital specification pleads guilty, the sentencing judge has the option of dismissing the death penalty specification "in the interests of justice." Although the Supreme Court struck down a statutory provision where a guilty plea automatically left the defendant ineligible for the death penalty, United States v. Jackson, 390 U.S. 570 (1968), the Supreme Court has never held that it is impermissible to structure a statute where the defendant might plead guilty to avoid the possibility of a death sentence, inasmuch as there is no per se rule against encouraging guilty pleas. See Corbitt v. New Jersey, 439 U.S. 212, 223 (1978); Spinkellink v. Wainwright, 578 F.2d 582, 608-609 (5th Cir. 1978) (citing Brady v. United States, 397 U.S. 742, 747 (1970)), cert. denied, 440 U.S. 976 (1979). Under Ohio's rules, unlike the statutory provision at issue in Jackson, one who pleads guilty to an indictment containing a death penalty specification is still eligible for the death penalty. See Spinkellink, supra, 578 F.2d at 608. For these reasons, the Court is not persuaded that Ohio R. Crim. P. 11(c)(3) chills a capital defendant's exercise of his right to a jury trial in violation of Jackson, supra.
The Sixth Circuit has also rejected the argument that the provisions of Crim. R. 11(c)(3) impermissibly encourage guilty pleas in capital cases. See Williams v. Bagley, 380 F.3d 932, 966 (6th Cir. 2004) (Ohio's scheme does not impermissibly encourage guilty pleas); Cooey v. Coyle, 289 F.3d 882, 924-25 (6th Cir. 2002) (noting that petitioner offered no constitutional authority to support claim that Crim. R. 11(c)(3) impermissibly encouraged guilty pleas in capital cases), cert. denied, 123 S.Ct. 1620 (2003); see also Wickline v. Mitchell, 319 F.3d 813, 824 (6th Cir. 2003). The Court notes that this provision obviously did not have a chilling affect on petitioner's right to a jury trial, as petitioner did not plead guilty and instead exercised his right to have a trial by jury. For the foregoing reasons, petitioner's argument must fail.
Finally, petitioner claims that Ohio's use of the electric chair constitutes cruel and unusual punishment because it inflicts unnecessary pain and suffering. However, on November 21, 2001, lethal injection became Ohio's sole method of execution. Ohio Rev. Code Ann. § 2949.22 (Anderson 2003). Accordingly, petitioner's claim is now moot. See Williams v. Bagley, 380 F.3d 932, 965 (6th Cir. 2004) (finding all arguments relating to electrocution to be moot because Ohio eliminated electrocution as a means of execution). See also Cowans v. Bagley, 236 F. Supp. 2d 841, 871 n. 7 (S.D. Ohio 2002) (same). Petitioner is not entitled to relief on the basis of this Eighth Amendment argument.
I. Proportionality Review Seventieth and Seventy-first Grounds for Relief — Petitioner Bedford's death sentence is unreliable and inappropriate because he was denied the procedural safeguard of a meaningful proportionality review by the court of appeals and Ohio Supreme Court in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
In his seventieth and seventy-first grounds for relief, petitioner argues that the manner in which the court of appeals and the Ohio Supreme Court conduct proportionality reviews in capital cases, and the manner in which those courts conducted the proportionality review in his case, is unconstitutional because the courts do not consider death penalty cases that resulted in life sentences. Petitioner contends that a tracking system that contains only death verdicts results in a system that is "tilted toward death." Petitioner argues that his death sentence should be compared to all cases where death was a possible penalty, including those cases that resulted in a life sentence, as opposed to only the cases where the death penalty was actually imposed. (Am. Pet., doc. no. 79, ¶¶ 669-71). Petitioner also argues that in his case, the appellate courts did not specify what cases it included in its proportionality review and what criteria it used in determining that his sentence was not disproportionate. Both aspects of petitioner's argument are foreclosed by Sixth Circuit and United States Supreme Court precedent.
Stated simply, there is no constitutional right to proportionality review. See Pulley v. Harris, 465 U.S. 37, 43-44 (1984). The Constitution does not require appellate courts to undertake this sort of comparison where the statutory scheme adequately channels the sentencer's discretion. Id. In so holding, the Court in Pulley noted that while its previous decision in Gregg v. Georgia, 428 U.S. 153 (1976), regarded favorably proportionality review by appellate courts as an additional safeguard against arbitrary and capricious sentencing, its decision in Gregg by no means required such review. Pulley, 465 U.S. at 44-46. Additionally, in Buell v. Mitchell, 274 F.3d 337, 368 (6th Cir. 2001), the Sixth Circuit rejected the argument that Ohio's proportionality review is inadequate "because no proportionality review is constitutionally required." Id. (citing Pulley v. Harris, 465 U.S. 37, 44-51 (1984)). See also Smith v. Mitchell, 348 F.3d 177 (6th Cir. 2003) (comparative proportionality review is not constitutionally required); Greer v. Mitchell, 264 F.3d at 691 (no Eighth Amendment right to proportionality review); Coe v. Bell, 161 F.3d 320, 352 (6th Cir. 1998) (same), cert. denied, 528 U.S. 1039 (1999).
In Ohio, appellate courts are required, pursuant to Ohio Revised Code § 2929.05(A), to determine whether a sentence of death is appropriate. That section provides in relevant part:
In determining whether the sentence of death is appropriate, the court of appeals . . . and the supreme court shall consider whether the sentence is excessive or disproportionate to the penalty imposed in similar cases. *** The court of appeals . . . or the supreme court shall affirm a sentence of death only if the particular court is persuaded from the record that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors present in the case and that the sentence of death is the appropriate sentence in the case.
O.R.C. § 2929.05(A). The Sixth Circuit has cited the appropriateness review set forth in this section with approval. See Buell, 274 F.3d at 368-69.
Petitioner has not demonstrated, and the Court is not otherwise persuaded, that the "appropriateness" review employed by the appellate courts in Ohio is constitutionally infirm. Decisions issued by the United States Supreme Court appear to regard the "appropriateness" of a death sentence as the individualized sentencing determination that is undertaken after a jury or trial court has concluded that a defendant is eligible for the death penalty. See Blystone v. Pennsylvania, 494 U.S. 299, 305 (1990); California v. Ramos, 463 U.S. 992, 1007 (1983); Woodson v. North Carolina, 428 U.S. 280, 305 (1976). Under Ohio's capital punishment scheme, appropriateness of the death penalty is determined when the sentencing body, having already found that a defendant convicted of aggravated murder is death-eligible because one or more aggravating circumstances has been proven beyond a reasonable doubt, undertakes a separate review of whether the aggravating circumstances outweigh any mitigating factors. The courts of appeals and Ohio Supreme Court are obligated, not only to review the trial court's assessment, but also to independently determine whether the sentence is proportionate, non-excessive, and appropriate based on the record of aggravating circumstances and mitigating factors. While Ohio might not employ the most comprehensive system of comparison, the fact remains that proportionality review is not required by the Constitution and this Court is satisfied that Ohio's scheme identifies those death-eligible defendants who are actually deserving of the death sentence within the confines of the Eight Amendment. For the foregoing reasons, the Court concludes that petitioner's seventieth and seventy-first claims are without merit.
J. Appellate Review Seventy-Second and Seventy-Third Grounds for Relief — Petitioner Bedford's death sentence is unreliable and inappropriate because he was denied the procedural safeguard of a meaningful, independent review of the jury's death recommendation and the trial court's sentence by the court of appeals in violation of the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.
In his seventy-second and seventy-third grounds for relief, petitioner claims his sentence is unreliable and inappropriate because he was deprived of a meaningful, independent review of the jury's death recommendation and the trial court's sentencing by the court of appeals. Petitioner claims that the court of appeals imposed the burden of proof upon him in mitigation, and also that the opinion of the court of appeals is "replete with errors of both fact and law." (Am. Pet., doc. no. 79, ¶ 692). Specifically, petitioner asserts that the court of appeals lumped all of his mitigating evidence together, mischaracterized the facts of the case when discussing the aggravating circumstance, reversed the burden of proof as to the weighing process, and conducted a deferential review of his sentence as opposed to a de novo review as required by § 2929.05 of the Ohio Revised Code. For the reasons that follow, petitioner's arguments are not well taken.
With respect to its duty to independently review petitioner's sentence of death, the court of appeals stated as follows:
In this case, as in all death-penalty appeals, this Court is faced, first, with the task of addressing the specific issues raised by the appellant in the assignments of error given us. Secondly, we must, pursuant to R.C. 2929.05, weigh independently the aggravating circumstances against any factors which mitigate against the imposition of the death penalty. Finally, we must consider independently whether Bedford's sentence is disproportionate to the penalty imposed in similar cases.Bedford, 1986 WL 11287, * 3 (Ohio App. 1st Dist.) (Oct. 8, 1986). In affirming petitioner's sentence of death, the court of appeals held that:
In conclusion, we find: (1) No merit in any of the fifteen assignments of error or the issues raised therein concerning the trial proceedings; (2) The aggravating circumstances of aggravated murder and murder outweigh any and all of the mitigating factors presented by the appellant; and (3) The sentence of death is appropriate in this case because it is neither excessive nor disproportionate to the penalty imposed in similar cases.Id. at * 14.
In specifically finding that the aggravating circumstance outweighed the mitigating factors presented by petitioner, the court of appeals correctly recognized that the sole aggravating circumstance present in this case is that petitioner engaged in a course of conduct which resulted in the purposeful killings of John Smith and Gwen Toepfert. With respect to this aggravating circumstance, the court noted as follows:
Without question, Bedford first determined that both of his eventual victims were within the apartment Ms. Toepfert shared with Jo Anne Funk, and then went there after arming himself with a loaded shotgun and revolver. After inflicting two fatal wounds upon Smith, Bedford entered the apartment, shot his female victim once with the handgun, pursued her to the place where she lay unmoving upon the floor, shot her once more with the revolver, left to obtain the shotgun and used it to shoot her body, perhaps symbolically, in the pelvic area.Id. at * 12. The court then listed the mitigating factors set forth in § 2929.04(B) of the Ohio Revised Code and summarized the factors that were present in petitioner's case:
In sum, the mitigating factors are that Bedford has a history of chronic depression, has a personality disorder characterized by a strong dependent streak, has been classified as borderline mentally retarded, has no record of conviction of a felony, and, at the times relevant to the crimes for which he was indicted, was an alcoholic. Added to this litany are the tragic details of the violent death of his father, the agonizing death of his mother from cancer and the desertion of a faithless wife. Bedford claims also to have been under extreme stress when he killed his victims.Id. at 13. The court conducted an independent weighing of the aggravating circumstance against the mitigating evidence, and held:
We now undertake, pursuant to R.C. 2929.05(A), the task of weighing independently the aggravating circumstances surrounding the murders of John Smith and Gwen Toepfert against the factors which Bedford has presented to mitigate against the imposition of the death penalty.
In complying with the mandate conveyed in the statute, we have examined every detail of the record. . . .
We hold, after careful consideration of all that has been spread before us, that the defendant-appellant did not present evidence of mitigating factors which outweigh the aggravating circumstance of the aggravated murder of Gwen Toepfert and the murder of John Smith.Id. at 14 (emphasis added).
This Court is troubled by the statement of the court of appeals that petitioner "did not present evidence of mitigating factors which outweigh the aggravating circumstance." This finding is an incorrect statement of Ohio law, and it appears that the court of appeals relieved the State of its burden of proving beyond a reasonable doubt that the aggravating circumstance outweighed the mitigating factors. However, the Court notes that at the conclusion of the opinion by the court of appeals, the court specifically found that "[t]he aggravating circumstances of aggravated murder and murder outweigh any and all of the mitigating factors presented by the appellant." Id. at 14. Accordingly, when reviewed in its entirety, it is unclear, at best, whether the court of appeals applied an incorrect legal standard in conducting its independent review of the aggravating and mitigating factors. However, even if the court shifted the burden of proof to petitioner, this Court cannot find that petitioner was prejudiced by the decision of the court of appeals that the evidence supported his sentence. Petitioner had the benefit of several meaningful procedural safeguards and ultimately, the Ohio Supreme Court conducted a very detailed review of his death sentence. Petitioner does not allege that the Ohio Supreme Court utilized the wrong legal standard in making its own independent determination that a sentence of death was warranted in his case. In addition, this Court has conducted its own review of the aggravating and mitigating factors and has concluded, independently, that petitioner's sentence is not constitutionally infirm or lacking in evidentiary support. Accordingly, the Court finds that petitioner's arguments are without merit.
III. CONCLUSION
For the foregoing reasons, petitioner's habeas corpus claims are DENIED and this habeas corpus action is hereby DISMISSED. The clerk is hereby directed to enter judgment closing this case.
IT IS SO ORDERED.
EXHIBIT