Opinion
Case No. 1:99 CV 2398
September 25, 2001
MEMORANDUM OF OPINION AND ORDER
Before the Court is the Petition for Writ of Habeas Corpus filed, pursuant to 28 U.S.C. § 2254, by petitioner Joseph Lewis Clark on February 16, 2000 ( ECF No. 25) (the "Petition"). Clark challenges the constitutional sufficiency of his conviction and death sentence for the aggravated murder of David A. Manning in 1984. For the reasons set forth below, the Court concludes that Clark has failed to establish the right to a writ of habeas corpus and, thus, DENIES the Petition.
I. FACTUAL BACKGROUND
A. Substantive Facts
The Supreme Court of Ohio succinctly set forth the factual background of this case in State v. Clark, 38 Ohio St.3d 252 (1988):
On the night of January 13, 1984, David A. Manning, an employee of the Clark service station at 3070 Airport Highway in Toledo, was shot and killed during an armed robbery of the establishment. The record indicates that defendant-appellant, Joseph L. Clark, entered the service station at approximately 9:00 p.m. armed with a drawn .32 caliber revolver. The victim was working alone and appellant demanded money. According to a statement made by appellant to Toledo police Detective Sergeant Larry Przeslawski, the victim told appellant that there was no money, but appellant repeated his demand for money. The victim then walked to the back room of the service station, returned to the counter, handed appellant approximately $60 from the cash drawer and told him that was all of the money on the premises. Appellant "told him it wasn't all of it." The victim responded that there was no more money, but reached down and produced an envelope containing more cash. According to appellant's statement, the victim then tried to "force his way on me [appellant]" whereupon appellant shot Manning once in the right upper chest. Appellant then ran out the service station door to his car and drove home.
Shortly thereafter, two Toledo police officers arrived on the scene in response to a silent alarm. One of the officers walked through the service station without seeing anyone. Upon looking further, he found the victim slouched behind the service counter.
On January 16, 1984, appellant was arrested after allegedly committing an assault and robbery at the Ohio Citizens Bank. The arresting officer found a .32 caliber revolver in appellant's coat pocket.
The next day, appellant, with the assistance of an appointed public defender, was arraigned in the Toledo Municipal Court for the assault and robbery at the bank. The public defender was aware that appellant was a suspect in the Manning murder, and advised appellant not to discuss it with anyone but him. Later that day, the record indicates that appellant tried to hang himself in his jail cell. Consequently, appellant was taken to St. Vincent's Medical Center for examination.
On January 23, 1984, appellant was released from the hospital and taken to the Toledo Police Detective Bureau where he was questioned by Detective James Lagger and Detective Sergeant Przeslawski. The detectives asked appellant if he was under the influence of alcohol or drugs, and appellant responded that he was not. The detectives then gave appellant a standard form containing his rights as established in Miranda v. Arizona (1966), 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694, 10 Ohio Misc. 9, 36 O.O.2d 237. Appellant then read each paragraph of the Miranda warnings out loud. After each paragraph was read, the detectives asked appellant if he understood what he had read. Appellant responded each time that he understood what he had read and thereupon initialed each paragraph. After reading his rights, appellant recited and signed the portion of the form waiving his Miranda rights.
Subsequently, appellant was interrogated by the detectives for a period covering one and three-fourths hours. Appellant was then moved to another room where his statements were tape recorded. At that time, Sgt. Przeslawski again read appellant his Miranda rights, and appellant made a statement about a robbery-murder at a Lawson's store in Toledo. After making this statement, the appellant was given another chance to hear his Miranda fights recited when the tape was replayed for him. Eventually, appellant made a tape-recorded statement confessing to the murder of Manning after his Miranda rights were again recited to him. The detectives gave appellant an opportunity to make any corrections in his statement upon replaying the tape for him. Appellant offered no corrections, additions or changes to his tape-recorded statements relating to the Manning murder.State v. Clark, 38 Ohio St.3d at 252-53. See also Vol. XXII at 1781-82. B. Indictment
As the indictment will reveal, infra at 5, Clark was eventually charged with two aggravated murders committed in the course of aggravated robberies (one at a Lawson's store and the instant one at a Clark gas station), two aggravated robberies, one attempted murder and one felonious assault — all occurring within an eight-day period in 1984.
The record of this case is contained in Roman-numeraled volumes, I through XXVIII.
Based on these facts, the Lucas County Grand Jury issued a six-count indictment against Joseph Lewis Clark on February 2, 1984. The indictment charged Clark with two counts of aggravated murder with capital specifications in violation of O.R.C. § 2903.01 (Counts I and II); two counts of aggravated robbery in violation of Ohio Revised Code § 2911.01 (Counts III and IV); one count of attempted murder in violation of O.R.C. §§ 2903.02 and 2903.1 (Count V); and one count of felonious assault in violation of O.R.C. § 2903.11(A)(2) (Count VI). The capital specifications accompanying Counts I and II charged, under O.R.C. § 2929.04(A)(7), that Clark committed the aggravated murders during the commission of the aggravated robberies. Firearms specifications accompanied all but Count VI.
Count I related to the robbery-murder at the Lawson's store. Count II concerned the January 13, 1984 aggravated murder of David Manning at the Clark Gas Station and is the subject of the instant Petition. Clark pled not guilty to Manning's murder and, at Clark's request, Count II was severed from the other Counts.
C. Trial, Mitigation Hearing, Sentencing
Count II proceeded to trial on October 5, 1984 under Case No. CR-84-5130. Attorneys Darrell V. Van Horn and Thomas G. Douglas represented Clark at trial. On November 6, 1984, the jury returned a unanimous verdict finding Clark guilty of the aggravated murder of David Manning, the aggravating circumstance of murdering Manning while committing an aggravated robbery, and the accompanying firearm specification.
The mitigation phase of the trial began on November 11, 1984 and concluded two days later. The jury unanimously found beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors presented by Clark in this case, and recommended that the death sentence be imposed. On November 28, 1984, the trial court adopted the jury's recommendation, found that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt, and imposed a sentence of death on Clark. On December 10, 1984, the court issued an eleven-page opinion setting forth in detail the bases for its conclusions and confirming the death sentence. A stay of execution was granted pending Clark's direct appeal.
II. PROCEDURAL BACKGROUND
A. Direct Appeal 1. Court of Appeals
Represented anew by attorney Thomas Patrick Kurt, Clark timely appealed his conviction and death sentence to the Ohio Court of Appeals, Sixth District, raising the following assignments of error:
1. The trial court erred in refusing to suppress from trial defendant's statements obtained in violation of defendant's rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution.
2. The trial court erred in refusing to suppress from trial evidence concerning a firearm which was rendered inoperable by agents of the State of Ohio prior to defendant's opportunity to have the firearm scientifically tested, in violation of defendant's rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution, and in violation of defendant's rights under Rule 16, Ohio Rules of Criminal Procedure.
3. The trial court erred in overruling defendant's motion to prohibit "death qualification" of the jury, in violation of defendant's Fifth, Eighth and Fourteenth Amendment rights under the United States Constitution.
4. The trial court erred in permitting the state to introduce evidence of defendant's prior convictions during the mitigation phase of the trial, in violation of Sections 2929.022 and 2929.023 of the Ohio Revised Code, and in violation of defendant's rights under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution.
5. Section 2929.03(D)(2) of the Ohio Revised Code, requiring that the trier of fact determine whether the statutory aggravating circumstances outweigh the mitigating factors "beyond a reasonable doubt," mandates the use of a standard of legal proof to determine an issue which does not present a question of fact, in violation of the Fifth, Eighth and Fourteenth Amendments to the United States Constitution.
6. The trial court erred in refusing to instruct the jury on the lesser included offense of involuntary manslaughter in violation of defendant's Fifth, Sixth, and Fourteenth Amendment rights to the United States Constitution.
7. The trial court erred in conducting trial proceedings outside of the presence of defendant and his counsel, in violations of his Fifth, Sixth and Fourteenth Amendment rights to the United States Constitution.
8. The trial court abused its discretion in permitting the jury to have and listen to an audio tape recording of appellant's confession in the juryroom during deliberations, in violation of appellant's Fifth and Fourteenth Amendment rights under the United States Constitution, and in overruling defendant's motion for a new trial on this basis.
9. Defendant's rights under the Eighth and Fourteenth Amendments to the United States Constitution were violated by the state's comments to the jury panel during voir dire, the state's closing argument following the mitigation hearing, and the trial court's instruction on sentencing to the jury, all to the effect that a sentence of death is merely a recommendation which would be reviewed by the trial judge.
10. Defendant's Fifth and Fourteenth Amendment rights under the United States Constitution were violated by the prosecutor's inflammatory, prejudicial and otherwise improper closing argument at the conclusion of the mitigation phase of the trial.
11. The sentence of death in this case is excessive and disproportionate to the penalty imposed in similar cases within the jurisdiction of the court.
12. The aggravating circumstances do not outweigh the mitigating factors in this case.
On December 24, 1986, the Court of Appeals issued a decision affirming Clark's conviction and sentence.
As to the first assignment of error, Clark argued that his inculpatory statements to Sergeant Przeslawski on January 23, 1984, made outside the presence of counsel, violated the Fifth, Sixth and Fourteenth Amendments in that they were not voluntarily made. Further, Clark asserted that the waiver of his Miranda rights was ineffective under Edwards v. Arizona, 451 U.S. 477 (1981), and Michigan v. Jackson, 475 U.S. 625 (1986). The Ohio Court of Appeals, noting that Clark had been arraigned and appointed counsel on charges distinct from this case when he made his inculpatory statement to police, addressed Clark's arguments in turn:
In considering whether appellant's rights were violated, we will look to Edwards v. Arizona (1981), 451 U.S. 477, 482-483, rehearing denied 91981) (sic), 452 U.S. 973, wherein the United States Supreme Court has stated:
"* * * It is reasonably clear under our cases that waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case `upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.' Johnson v. Zerbst, 304 U.S. 458, 464 (1938). See Faretta v. California, 422 U.S. 806, 835 (1975); North Carolina v. Butler, 441 U.S. 369, 374-375 (1979); Brewer v. Williams, 430 U.S. 387, 404 (1977); Fare v. Michael C., 442 U.S. 707, 724-725 (1979)." (Emphasis added.)
In the case sub judice, the appellant was not unfamiliar with the criminal justice system. On January 23, 1984, prior to making this statement, he had been advised of his Miranda rights in excess of nine times in relation to many crimes under investigation. He was not under the influence of drugs and the police had been given his treating physician's authorization to talk with him at that time. From the record before this court, it appears that not only was the waiver of counsel done voluntarily, but appellant knew what he was doing and he intelligently relinquished his constitutional rights as to this charge. We find that appellant's rights under the Fifth Amendment to the United States Constitution were not violated.
Proceeding now to a consideration of the issue of whether appellant's Sixth Amendment rights were violated, we shall consider the case of Michigan v. Jackson (1986), 475 U.S. 625, 89 L.Ed.2d 631, 639, for guidance:
"* * * In United States v. Gouveia, we explained the significance of the formal accusation, and the corresponding attachment of the Sixth Amendment right to counsel:
`[G]iven the plain language of the Amendment and its purpose of protecting the unaided layman at critical confrontations with his adversary, our conclusion that the right to counsel attaches at the initiation of adversary judicial criminal proceedings "is far from a mere formalism." Kirby v. Illinois, 406 U.S. at 689, 92 S.Ct., at 1882. It is only at that time "that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified. It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.'" 467 U.S. at 189, 81 L.Ed.2d 146, 104 S.Ct. 2292.
"As a result, the `Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a "medium" between him and the State.' Maine v. Moulton, 474 U.S., at ___, 88 L.Ed.2d 481, 106 S.Ct. 477. * * *" (Emphasis added.)
The line of cases of Maine v. Moulton (1985), ___ U.S. ___, 88 L.Ed.2d 481, Edwards v. Arizona, supra, and United States v. Gouveia (1983), 467 U.S. 180, are distinguishable from the case sub judice in that they deal with situations where the offender has been formally charged with a crime and the incriminating statement subsequently obtained is introduced in the pending trial. In the case sub judice, appellant had been formally charged with a separate and distinct crime and an attorney had been appointed to represent him in that case. The statement obtained did not pertain to that charge nor was the statement introduced in the trial of that pending charge. Rather, it was only after appellant made the statement that he was formally charged in the instant case. The United States Supreme Court in Maine v. Moulton, supra, shed light on this distinguishing aspect when it stated the following:
`* * * Moreover, law enforcement officials investigating an individual suspected of committing one crime and formally charged with having committed another crime obviously seek to discover evidence useful at a trial of either crime. In seeking evidence pertaining to pending charges, however, the Government's investigative powers are limited by the Sixth Amendment rights of the accused. To allow the admission of evidence obtained from the accused in violation of his Sixth Amendment rights whenever the police assert an alternative, legitimate reason for their surveillance invites abuse by law enforcement personnel in the form of fabricated investigations and risks the evisceration of the Sixth Amendment right recognized in Massiah. On the other hand, to exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public's interest in the investigation of criminal activities. * * *" Maine v. Moulton, supra, at 498. (Emphasis added, Footnote omitted.)
Therefore, this line of cases does not prohibit the introduction of statement (sic) at a subsequent trial as long as the Fifth Amendment rights of the offender have not been violated. There is no Sixth Amendment violation in the case sub judice, as the court stated in United States v. Gouveia, supra, at 187-188:
"* * * In Kirby v. Illinois, [ 406 U.S. 682] a plurality of the Court summarized our prior cases as follows:
"`In a line of constitutional cases in this Court stemming back to the Court's landmark opinion in Powell v. Alabama, 287 U.S. 45, it has been firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. See Powell v. Alabama, supra; Johnson v. Zerbst, 304 U.S. 458; Hamilton v. Alabama, 368 U.S. 52; Gideon v. Wainwright, 372 U.S. 335; White v. Maryland, 373 U.S. 59; Massiah v. United States, 377 U.S. 201; United States v. Wade, 388 U.S. 218; Gilbert v. California, 388 U.S. 263; Coleman v. Alabama, 399 U.S. 1.'" * * * [W]hile members of the Court have differed as to the existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings — whether by way of formal charge, preliminary hearing, indictment, information, or arraignment.' [ Kirby, supra,] at 688-689 * * *.
"The view that the right to counsel does not attach until the initiation of adversary judicial proceedings has been confirmed by this Court in cases subsequent to Kirby. See Estelle v. Smith, 451 U.S. 454, 469-470 (1981); Moore v. Illinois, 434 U.S. 220, 226-227 (1977); Brewer v. Williams, 430 U.S. 387, 398-399 (1977); United States v. Mandujano, 425 U.S. 564, 581 (1976) (opinion of BURGER, C.J.)." (Emphasis added.)
From this it becomes readily apparent that there must be adversary judicial proceedings pending at the time before a person's Sixth Amendment rights come into question.
In the case sub judice, there was no formal charge pending against appellant involving the homicide of David A. Manning, therefore, adversarial judicial proceedings had not been initiated and appellant's Sixth and Fourteenth Amendment rights were not violated.
Having previously found that appellant's Fifth Amendment rights had not been violated, we find appellant's first assignment of error not well-taken.
For ease of reading, the Court hereafter corrects several nonconsequential typographical errors in this particular quotation without repetitively writing the editorial term "(sic)."
1986 WL 15254 at *1-4 See also Vol. XIX at 884-88.
In the second assignment of error, Clark argued that the trial court erred in refusing to suppress the firearm he used to murder Manning, allegedly rendered inoperable by government testing, and that such error violated his Fifth and Fourteenth Amendment rights. The Ohio Court of Appeals addressed this issue as follows:
When ascertaining whether such an evidentiary ruling is erroneous, the Supreme Court of Ohio stated in State v. Martin that:
"* * * In order for appellant to succeed on this proposition, he must show that the trial court abused its discretion in the admission or exclusion of the evidence in question, and that the appellant has been materially prejudiced thereby. See State v. Hymore (1967), 9 Ohio St.2d 122 [38 O.O.2d 298]." State v. Martin (1985), 19 Ohio St.3d 122, 129, certiorari denied (1986), 474 U.S. 1073, 88 L.Ed.2d 808, rehearing denied (1986), 475 U.S. 1040, 89 L.Ed.2d 360.
The record is devoid of any evidence that the government acted in bad faith in test firing the gun in excess of eighty shots. There must be a showing that the government acted fraudulently or in bad faith in rendering the gun inoperable. Chandler v. United States (C.A. 10, 1963), 318 F.2d 356.
We find no abuse of discretion. Appellant could have had his independent expert use any of these test shots in performing an independent analysis. There has been no showing that any of appellant's constitutional rights have been violated nor has appellant been prejudiced.
For these reasons, appellant's second assignment of error is found not well-taken.
1986 WL 15254 at *4 See also Vol. XIX at 888-89.
In the third assignment of error, Clark argued that the trial court erred in overruling defendant's motion to prohibit `death qualification' of the jury, in violation of the Fifth, Eighth and Fourteenth Amendments. The Ohio Court of Appeals ruled as follows:
The United States Supreme Court in Lockhart v. McCree (1986), 326 U.S. 367, 90 L.Ed. 137, on May 5, 1986, reversed the Eighth Circuit Court of Appeals in Grigsby v. Mabry (1985), 758 F.2d 226, wherein the court held that "death qualification" of a jury does not violate the accused's constitutional right to an impartial jury. The Court specifically stated that:
"* * * We have consistently rejected this view of jury impartiality, including as recently as last Term when we squarely held that an impartial jury consists of nothing more than `jurors who will * * *" Lockhart v. McCree, supra, at 151. (Emphasis in original.)
This issue has been considered by the Supreme Court of Ohio in State v. Scott (1986), 26 Ohio St.3d 92, 97, wherein the court stated:
"The United States Supreme Court reestablished and somewhat clarified the Witherspoon standard in Wainwright v. Witt, [ 469 U.S. 412]. Therein, the court at 852 dispensed with the reference to `automatic' decision making and the "`unmistakable clarity'" standards of Witherspoon. Instead, the Witt court held that the proper standard was `whether the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instruction and his oath.'" [ Wainwright v. Witt, supra, at 424].
"In State v. Rogers (1985), 17 Ohio St.3d 174, 178, this court reevaluated Jenkins in light of the United States Supreme Court's modification of the Witherspoon standard in Witt. The Rogers court concluded that the Witt standard was applicable to this jurisdiction. * * *"
In the case sub judice, eight jurors were so excused. In each of the eight instances, the jurors either could not or would not consider the imposition of the sentence of death under any circumstances. Pursuant to R.C. 2945.25(c), jurors who harbor such convictions may be challenged for cause. State v. Williams (1986), 23 Ohio St.3d 16; State v. Buell (1986), 22 Ohio St.3d 124; State v. Martin, supra; State v. Mapes (1985), 19 Ohio St.3d 108, certiorari denied (1986), 476 U.S. 1178, 90 L.Ed.2d 991; State v. Rogers (1985), 17 Ohio St.3d 174.
Appellant's third assignment of error is found not well-taken.
1986 WL 15254 at *6-7. See also Vol. XIX at 892-93.
In the fourth assignment of error, Clark asserted that the trial court erred in allowing the state to introduce evidence concerning his prior criminal record during the mitigation phase of the proceedings. Pointing out that Clark's prior record was presented to the jury by way of stipulation, the Ohio Court of Appeals addressed this issue as follows:
R.C. 2929.04(B) provides in pertinent part:
"* * * trial jury, * * * shall consider, and weigh against the aggravating circumstances proved beyond a reasonable doubt, the nature and circumstances of the offense, the history, character, and background of the offender, * * *." (Emphasis added.)
This statute makes it mandatory for the trier of fact to consider the history, character and background of the offender along with all of the seven factors set forth in R.C. 2929.04(B). A prior criminal record certainly is part of the offender's history and background. To exclude an offender's record from consideration by the jury during the mitigation phase, especially in a case where two witnesses testified that the offender's life had been uneventful and that he had caused his mother little trouble, would be a distortion of the true history and background of the accused.
In addition, factor 5 of R.C. 2929.04(B) provides:
"(5) The offender's lack of a significant history of prior criminal convictions and delinquency adjudications;"
If the "lack of significant history of prior criminal convictions" is a mitigating factor then the presence of a record should certainly be considered as part of the offender's significant history.
Accordingly, appellant's fourth assignment of error is found not well-taken.
1986 WL 15254 at *7-8. See also Vol. XIX at 894-95.
In the fifth assignment of error, Clark argued that O.R.C. § 2929.03(D)(2) was unconstitutional in that the process of "weighing" the aggravating circumstances and the mitigating factors is an inarticulate standard which denies him his rights under the Fifth, Eighth and Fourteenth Amendments. The Ohio Court of Appeals summarily dismissed this issue, stating:
This identical argument was presented to the Supreme Court of Ohio initially in State v. Jenkins (1984), 15 Ohio St.3d 164, certiorari denied (1985), 472 U.S. 1032, 87 L.Ed.2d 643, rehearing denied (1985), 473 U.S. 927, 87 L.Ed.2d 697, wherein the Supreme Court relied upon Proffitt v. Florida (1976), 428 U.S. 242, rehearing denied (1976), 429 U.S. 875, in rejecting it. State v. Scott (1986), 26 Ohio St.3d 92; State v. Buell, supra; State v. Rogers, supra. Appellant's fifth assignment of error is found not well-taken.
1986 WL 15254 at *8. See also Vol. XIX at 895-96.
In the sixth assignment of error, Clark argued that the trial court erred in not instructing the jury on the lesser included offense of involuntary manslaughter. The Ohio Court of Appeals addressed this issue as follows:
The Supreme Court of Ohio, in discussing when a trial court is required to instruct on a lesser included offense, stated in State v. Wilkins (1980), 64 Ohio St.2d 382, 387-388:
"The mere fact that an offense can be a lesser included offense of another offense does not mean that a court must instruct on both offenses where the greater offense is charged. This court made it clear in State v. Nolton (1969), 19 Ohio St.2d 133, that juries were not to be presented with compromise offenses which could not possibly be sustained by the adduced facts.
* * * *
"If the evidence adduced on behalf of the defense is such that if accepted by the trier of fact it would constitute a complete defense to all substantive elements of the crime charged, the trier of fact will not be permitted to consider a lesser included offense unless the trier of fact could reasonably find against the state and for the accused upon one or more of the elements of the crime charged, and for the state and against the accused on the remaining elements, which, by themselves, would sustain a conviction upon a lesser included offense."
The facts in the case sub judice, as presented by the state, evidence the fact that the appellant was armed when he entered the Clark Gas Station on January 13, 1984. As appellant entered the station at approximately 9:00 p.m., he had his .32 caliber revolver drawn. Appellant asked for the money and the attendant, David A. Manning, handed him the money out of the cash register. After doing this, appellant advised him that this was not all of the money he had. Manning then proceeded to give him an envelope and it was at this point that the appellant shot him. A trial court is only vested with authority to give a charge on a lesser included offense when the evidence warrants it. It would be error for the trial court to give a charge on a lesser included offense when the evidence supports all of the elements of the original crime charged. In the case sub judice, the evidence firmly established that a homicide was committed during the perpetration of an aggravated robbery. There can be no interpretation of these facts which would warrant a jury to find appellant not guilty of aggravated murder but guilty of the offense of involuntary manslaughter. As the Supreme Court of Ohio stated in State v. Clark (1978), 55 Ohio St.2d 257, 260, certiorari denied (1979), 440 U.S. 950:
"* * * appellant participated in the planning and commission of the robbery, and also acquiesced in the employment of a deadly weapon to accomplish this crime. Under these circumstances appellant must have realized that the victim's life would be endangered by the manner and means of performing the act conspired, and accordingly, appellant is bound by the consequences naturally resulting from the furtherance of the conspiracy to commit the aggravated robbery. * * *"
In the case sub judice, appellant was acting alone and when he armed himself with a loaded gun, he is responsible for the consequences.
In conclusion, it was not error for the trial court to refuse to instruct on involuntary manslaughter. Appellant's sixth assignment of error is found not well-taken.
1986 WL 15254 at *4. See also Vol. XIX at 889-891.
In the seventh assignment of error, Clark argued that the trial court erred in conducting proceedings outside the presence of Clark and his counsel, in violation of his Fifth, Sixth and Fourteenth Amendment rights. In the eighth assignment of error, Clark argued that the trial court abused its discretion in permitting the jury to listen to his taped confession in the jury room during deliberations, in violation of his Fifth and Fourteenth Amendment rights, and in overruling his motion for a new trial on this basis. Finding these issues interrelated, the Ohio Court of Appeals, addressed them in reverse order:
Appellant contends that it was error for the trial court to permit the taped confession to be replayed during jury deliberations. This issue was discussed in United States v. Bizanowicz (C.A. 1, 1984), 745 F.2d 120, 123, wherein the court stated:
"No showing of prejudice has been made and no abuse of discretion is apparent in the maimer in which the trial court allowed the tape and player to go to the jury. The tape had already been played to the jury. Ordinarily, exhibits are sent to the jury room. An audio exhibit should not be relegated to muteness because it can be perused only through the use of tape player. See United States v. Humphrey, 696 F.2d 72, 75-76 (8th Cir. 1982), cert. denied, 459 U.S. 1222, 103 S.Ct. 1230, 75 L.Ed.2d 463 (1983)." (Emphasis added.)
Appellant further contends that a new trial was warranted since he was not present when the tape was played to the jury. Appellant relies upon the case of State v. Grisafulli (1939), 135 Ohio St. 87, however, that case and the other cases decided since Grisafulli were dealing with instances where additional instructions were being given by the trial court in the absence of the accused.
The appellant has a right to be present when additional instructions are given, but this was a situation where the jury merely wanted to listen to the tape recording. We can find no authority to support the proposition that appellant would have a right to be present during the jury's deliberations. No record was made to be present during the jury's deliberations. No record was made of what transpired when the tape was replayed for the jury. We must therefore presume the validity and regularity of the lower court's proceedings. See Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197.
Accordingly, appellant's seventh and eighth assignments of error are found not well-taken.
1986 WL 15254 at *5-6. See also Vol. XIX at 891-92.
In the ninth assignment of error, Clark argued that it was error for the jury to be advised that their decision as to the death sentence were merely a recommendation. In support of this position, Clark cited a case on remand from the United States Supreme Court, State v. Rogers, 17 Ohio St.3d 174 (1985). The Ohio Court of Appeals responded:
We are aware of the remand by the United States Supreme Court of State v. Rogers, supra, in light of Caldwell v. Mississippi (1985), 472 U.S. 320, 86 L.Ed.2d 231. The Rogers case is still pending on remand in the Supreme Court of Ohio. We are bound by the holdings of the Supreme Court of Ohio in State v. Scott, supra; State v. Buell, supra; and State v. Maurer (1984), 15 Ohio St.3d 239, certiorari denied (1985), 472 U.S. 1012, 86 L.Ed.2d 728, rehearing denied (1985), 473 U.S. 924 87 L.Ed.2d 694.
Therefore, we find no merit to appellant's ninth assignment of error and, accordingly, it is found not well-taken.
1986 WL 15254 at *8. See also Vol. XIX at 895-96.
After remand, the Supreme Court of Ohio issued State v. Rogers, 28 Ohio St.3d 427 (1986), reaffirming its earlier decision that the trial court properly instructed the jury regarding the effect of a jury recommendation of a death sentence, and that the court properly provided verdict forms stating that the jury "recommended" a particular sentence. The Court also held that references to the jury's role in recommending a sentence, during voir dire and closing argument, did not deprive the defendant of a fair trial.
In the tenth assignment of error, Clark contended that the prosecutor committed prejudicial error in his final argument during the mitigation hearing when he made comments concerning the fact that Dr. Kisin was a paid defense witness. The Ohio Court of Appeals concluded:
At the outset we note that there was no objection by defense counsel when the comments were made by the prosecuting attorney during final argument. The Supreme Court of Ohio has held in the case of State v. Williams (1977), 51 Ohio St.2d 112, 117, vacated on other grounds (1978), 438 U.S. 911, that:
"* * * This court has consistently held that an appellate court need not consider an error which a party complaining of the trial court's judgment could have called, but did not call, to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. * * *" (Citations omitted.)
In addition, however, we find after a thorough review of the entire mitigation hearing record we cannot say the comments by the prosecutor were either improper or prejudicial to the appellant. See State v. Smith (1984), 14 Ohio St.3d 13.
Great latitude is vested in the sound discretion of the trial court as to final argument. The Supreme Court of Ohio in State v. Maurer, supra, at 269, stated:
"At the outset, we observe that `[c]onsiderable latitude is permitted in closing arguments, and the question is generally considered one falling in the first instance within the sound discretion of the trial court.' State v. Pustare (1973), 33 Ohio App.2d 305, 312 [62 O.O.2d 450]. This court, in Golamb v. Layton (1950), 154 Ohio St. 305 [43 O.O. 194], at paragraphs three and four of the syllabus, held:
"`Although misconduct of counsel in argument to the jury is ever to be condemned, it does not always constitute grounds for ordering a mistrial or reversing a judgment. If the trial court promptly intervenes by admonition to counsel and appropriate instruction and it appears that a verdict for the party represented by such offending counsel is clearly justified by the evidence, the verdict may be allowed to stand.
"`Such matters often rest in the sound discretion of the trial court and where it is apparent from the particular facts and circumstances of the particular case that such discretion has not been abused a reviewing court will not ordinarily interfere.'"
After a thorough review of the evidence presented, we do not find that appellant was prejudiced by the comments nor can we say that without the prosecutor's comment the death penalty would not have been given. Accordingly, appellant's tenth assignment of error is found not well-taken.
1986 WL 15254 at *8-9. See also Vol. XIX at 896-97.
In the eleventh assignment of error, Clark argued that his death sentence was excessive and disproportionate to the penalty imposed in similar cases. The Ohio Court of Appeals disagreed:
Lastly, this court must consider the proportionality of the death sentence in this case as compared to those imposed in similar crimes in our district.
Capital punishment in this case cannot be viewed as disproportionate or excessive when compared to its imposition in State v. Rogers, supra, for kidnaping, rape and murder, or State v. Esparza (August 22, 1986), Lucas App. No. L-84-225, unreported, wherein Esparza was convicted of an identical offense as appellant, the aggravated murder with a specification of aggravated robbery.
A review of these cases leads this court to the conclusion that time sentence of capital punishment in this case is not disproportionate with that of other cases.
Appellant's eleventh assignment of error is found not well-taken.
1986 WL 15254 at *10. See also Vol. XIX at 899.
In the twelfth assignment of error, Clark argued that the aggravating circumstances did not outweigh the mitigating factors in his case. In response, the Ohio Court of Appeals undertook a review and independently weighed the competing factors as required under O.R.C. § 2929.05(A):
In the case sub judice, the appellant was found guilty beyond a reasonable doubt of the aggravated murder of David A. Manning and the aggravated circumstance, set forth in the indictment, to wit: said homicide was committed while Joseph Lewis Clark was committing or fleeing immediately after committing aggravated robbery. At the mitigation phase of the trial appellant presented several witnesses including his mother, daughter, son, a clinical psychologist, a professor of sociology at the University of Toledo, a member of the clergy committee at the Lucas County Jail, and an unsworn statement of the appellant.
The essence of all of this testimony was that appellant had a traumatic experience in 1963 when he lost his father unexpectedly, he fathered his first child at age fifteen, he was addicted to drugs, his wife prostituted so that they would have money to support their drug habits, his two children who testified both are in college, at the time of the offense his wife had been incarcerated for thirty days and, therefore, was unable to prostitute for appellant, and as a result he had to turn to committing aggravated robberies in order to obtain money to purchase drugs. Appellant did express remorse and sorrow in killing David A. Manning.
In considering all of the testimony presented during the mitigation phase of the trial, we find none of it falls within any of the first six factors of R.C. 2929.04(B). Only factor seven remains which states "Any other factors that are relevant * * *." We find that in the instant case that this was a totally senseless cold-blooded killing. David A. Manning had turned the money over to appellant. Appellant insisted that there was more money in the safe. Mr. Manning was in a kneeling position at the safe and was unarmed at the time appellant fired a shot into his chest. This was not appellant's first contact with the law. We find that the mitigating factors do not outweigh the aggravating circumstances.
Appellant's twelfth assignment of error is found not well-taken.
1986 WL 15254 at *9-10. See also Vol. XIX at 897-99.
The Ohio Court of Appeals thus affirmed the trial court's judgment and continued the stay of execution granted by the trial court pending appeal to the Supreme Court of Ohio.
2. The Supreme Court of Ohio
Clark appealed the decision of the Ohio Court of Appeals to the Supreme Court of Ohio, asserting the following propositions of law:
1. In a death penalty sentencing hearing, where the defendant has not produced evidence of mitigation pursuant to R.C. 2929.O4(B)(5), the State may not, by impeachment of defendant's witnesses or otherwise, introduce evidence of defendant's prior convictions.
2. In a prosecution for aggravated murder in the commission of an armed robbery, where a jury could reasonably find against the state on the issue of intent, the defendant is entitled to an instruction on the lesser included offense of involuntary manslaughter in the commission of a felony.
3. When a Court of Appeals in reviewing an assignment of error so incorrectly states the issue presented such that it bears no relation to the assignment of error, Rule 12(A), Ohio Rules of Appellate procedure has not been complied with. In such a case, the Ohio Supreme Court will remand the matter for reconsideration by the Court of Appeals.
4. The defendant has an inviolable right to be present when the trial court rules on a request by the deliberating jury to re-play portions of defendant's tape recorded confession. Where neither defendant nor his counsel are present when the court rules on such a request, the defendant's constitutional right to be present at all stages of trial, guaranteed by the Sixth Amendment to the United States Constitution, has been violated, requiring reversal of defendant's conviction.
5. Permitting the replaying of selected portions of a criminal defendant's taped confession during jury deliberations is an abuse of discretion where the portions replayed cause defendant's admissions to be unduly emphasized in relation to his denials which were not taped, and where neither defendant nor his counsel are present when the trial court rules on the jury's request to hear the tape.
6. In an aggravated murder trial and death sentence hearing, it is error for the jury to be informed, either by the prosecutor during voir dire and closing argument, or by the trial court during its instructions, that their pronouncement of a sentence of death is a "mere recommendation."
7. Remarks by a prosecutor during closing argument which go beyond the record, are highly derogatory to the defense, and are clearly intended to sway the jury to the prosecutor's position, are improper. Where the prosecutor makes such remarks during his closing argument of a death penalty mitigation hearing, the trial court's sentence of death must be reversed unless it is clear beyond a reasonable doubt that absent the remarks the defendant would not have been sentenced to death.
8. Defendant's statements obtained in violation of his fifth, sixth, and fourteenth amendment rights under the United States Constitution may not be admitted against him.
9. Where a firearm is rendered inoperable by agents of the state prior to the defendant's having an opportunity to have the firearm scientifically tested, evidence concerning the firearm should be excluded.
10. Where appellant expressly argues to the Court of Appeals that his sentence of death is excessive and disproportionate in relation to his sentence of life imprisonment received in an unrelated but closely similar case, the court of Appeals must determine whether such death sentence is appropriate and state in writing its reasons for so determining. Failure of the Court of Appeals to do so requires the Ohio Supreme Court to remand the matter for reconsideration.
11. Where, in reviewing a sentence of death, the Court of Appeals mistakenly bases its factual findings on the basis of an unrelated offense charged in another count of the indictment which is not the subject of the appeal, the Ohio Supreme Court will remand the case for reconsideration of the appropriateness of the sentence of death.
12. The sentence of death in this case is per se excessive and disproportionate to the penalty imposed in the trial of State v. Joseph Clark, Count I of the instant case.
13. The aggravating circumstances do not outweigh the mitigating factors in this case. The sentence of death is excessive and disproportionate to that imposed in other cases, and is otherwise not appropriate.
The State filed a response brief on August 24, 1987. Clark filed a motion for re-argument and a supplemental brief on July 19, 1988 asserting, inter alia, that
Clark's statements obtained in violation of his fifth, sixth, and fourteenth amendment rights under the United States Constitution may not be admitted against him because defendant's representation by counsel at the Municipal Court arraignment constituted an assertion of his right to counsel at interrogation, thus invalidating any waiver of the Sixth Amendment right to counsel which might have been obtained, even if preceded by proper Miranda warnings.
On August 24, 1988, the Supreme Court of Ohio published an opinion affirming Clark's conviction and death sentence and dismissing the appeal. See State v. Clark, 38 Ohio St.3d 252 (1988). In the first proposition of law, Clark argued that the State cannot introduce evidence of a defendant's prior criminal record during the mitigation phase of a capital case unless the defendant has placed in issue the lack of a criminal record. The Ohio Supreme Court addressed this issue as follows:
R.C. 2929.03(D)(1) places the burden of going forward with evidence of mitigating factors on the defense. R.C. 2929.04(B) provides in relevant part:
"[T]he court, trial jury, or panel of three judges shall consider, and weigh against the aggravating circumstances proved beyond a reasonable doubt, the nature and circumstances of the offense, the history, character, and background of the offender, and all of the following [mitigating] factors * * *."
Since the statute makes the consideration of history, character and background evidence of the offender mandatory, the state contends that such evidence of history and background (i.e., prior record) is admissible regardless of whether appellant places his history, character or background in issue.
In our view, if the appellant in fact carries his burden of going forward with evidence of mitigating factors, he opens the door for the state to introduce rebuttal evidence. In the instant cause, while appellant did not attempt to prove the lack of a significant prior criminal record, he did introduce evidence of his history, character and background through the testimony of his mother and Dr. Hy P. Kisin. . . . The testimony of appellant's mother and daughter, Cheryl Stallworth, portrayed appellant as a good father and a quiet, Bible-reading man who lived with his mother. Dr. Kisin's testimony tended to portray appellant as a person with a potential for rehabilitation, and suggested that if appellant were ever released from prison, he would not be dangerous.
We believe that the evidence proffered by appellant in mitigation was in fact evidence of his history, character and background. The evidence submitted by the state in rebuttal was relevant to impeach, for example, Dr. Kisin's opinion of appellant's potential for rehabilitation. The prior criminal record of appellant was relevant to rebut the portrayal of appellant as a quiet, religious man and good father. Likewise, the rebuttal evidence of appellant's prior criminal record was relevant in this context because it completed an otherwise incomplete account of appellant's history and background. Since appellant essentially raised the issue of his history, character and background, he "opened the door" to all evidence relevant thereto. See Evid.R. 405(B). Since such evidence was offered in order to refute appellant's mitigation evidence, we hold that the introduction of appellant's prior criminal record here was relevant and admissible for this purpose.
Therefore, we affirm the court of appeals on this issue.
38 Ohio St.3d at 254-55 (footnote omitted). See also Vol. XXII at 1782-83.
In the second proposition of law, Clark contended that the trial court erred in not instructing the jury on the lesser included offense of involuntary manslaughter because a reasonable jury could have entertained a reasonable doubt as to the element of purpose under the evidence submitted in this case. The Supreme Court of Ohio ruled as follows:
In his taped confession to the police, appellant neither admitted nor denied his intent to kill the victim. He did state, however, that the victim "tried to force his way on me," and "tried to grab me." Appellant submits that a reasonable jury could have believed this scenario, and could have concluded that the appellant pulled the trigger accidentally out of surprise at the victim's reaction; or that he fired the revolver to wound the victim; or that he fired in order to frighten the victim. In support of these theories, appellant suggests that the victim was a belligerent person who would likely fight an armed robber.
This court has held that an instruction on a lesser included offense should only be given where the evidence warrants such an instruction. State v. Jenkins (1984), 15 Ohio St.3d 164, 15 OBR 311, 473 N.E.2d 264, certiorari denied (1985), 472 U.S. 1032, 105 S.Ct. 3514, 87 L.Ed.2d 643; State v. Thompson (1987), 33 Ohio St.3d 1, 12, 514 N.E.2d 407, 418; State v. Johnson (1988), 36 Ohio St.3d 224, 226, 522 N.E.2d 1082, 1084. An offense is deemed to be a lesser included offense of another if it is of a lesser degree than the other; if the greater offense cannot be committed without the lesser offense being committed; and where the greater offense requires proof of an element that is not an element of the lesser offense. State v. Wilkins (1980), 64 Ohio St.2d 382, 18 O.O.3d 528, 415 N.E.2d 303; State v. Kidder (1987), 32 Ohio St.3d 279, 513 N.E.2d 311. Even if commission of the greater offense necessarily entails commission of the lesser, the lesser offense is included only if, under the facts of the case, the trier of fact could reasonably find against the state and for the accused upon one or more elements of the crime charged, and for the state and against the accused on the remaining elements, which by themselves would sustain a conviction upon a lesser included offense. Wilkins, supra; Kidder, supra. Involuntary manslaughter may, if the facts warrant, be a lesser included offense of murder. See State v. Johnson (1983), 6 Ohio St.3d 420, 6 OBR 466, 453 N.E.2d 595. Since murder and aggravated murder differ only by the additional elements required to prove aggravated murder, cf. R.C. 2903.01(B) and 2903.02(A), involuntary manslaughter can also, under the proper facts, be a lesser included offense of aggravated murder. Thus, in the cause sub judice, the element of purpose is the key inquiry in determining whether the trial court was correct in not giving the jury an instruction on involuntary manslaughter. A review of the state's evidence submitted at trial to prove the element of purpose was that the appellant used a drawn, loaded revolver in the robbery and shot the victim in the chest with it. On prior occasions, we have held that the use of an "inherently dangerous instrumentality" in a robbery evinces an intent to kill because "homicide * * * is a natural and probable consequence thereof" State v. Johnson (1978), 56 Ohio St.2d 35, 39, 10 O.O.3d 78, 81, 381 N.E.2d 637, 640; State v. Clark (1978), 55 Ohio St.2d 257, 9 O.O.3d 257, 379 N.E.2d 597.
The testimony offered at trial indicates that the victim and appellant were on different sides of the service counter during the robbery. Before entering the service station, appellant had walked past it, then doubled back behind it, leaving footprints in the snow. When Toledo police officer Alfred Sigura responded to the silent alarm, he saw wet footprints in the service area of the station leading from the door to a soft drink cooler to the right and from there up to the counter, which was to the left of the door. He stated that he found no other (non-police) footprints in the service station. The victim's body was found behind the service counter.
Since Sigura arrived at the service station within thirty seconds after receiving the alarm, the logical inference would be that the wet footprints were appellant's. Since appellant left no footprints on the victim's side of the counter, it is reasonable to assume that he was not ever there. Thus, although the record does not specifically establish that the victim and appellant were separated by the service counter, the testimony indicates that they were.
In applying the pertinent precedents to the facts sub judice, we do not believe that a jury instruction on the lesser included offense was warranted. Appellant's theory that he intended to merely frighten the victim is patently unreasonable. If appellant wanted only to frighten the victim, he clearly would not have fired the gun at the victim's chest. Similarly, we believe that appellant's theory that he shot to wound the victim is also unreasonable. Although defense counsel argued before the jury that the shot might have been aimed at the victim's shoulder, the bullet was moving from the victim's right to his left, indicating that the shot was aimed away from the victim's right shoulder. On balance, however, because the wound was located in a vital area of the victim's body, we are unpersuaded that appellant's theory of shooting to wound is worthy of any merit under the evidence. In addition, we reject appellant's theory that the victim's movement surprised appellant into firing the revolver unintentionally. A careful review of the surrounding circumstances involved herein indicates that appellant waited to confront the victim while he was alone in the service station, as evidenced by the footprints in the snow. The evidence also shows that appellant participated in the commission of a robbery, and employed a deadly weapon to accomplish this crime. Even assuming appellant's account that the victim tried to grab him, the evidence and testimony indicate a voluntary, purposeful act to kill the victim, not an unintentional shooting brought about by surprise. Accordingly, we affirm the trial court's refusal to instruct the jury on involuntary manslaughter.38 Ohio St.3d at 255-56. See also Vol. XXII at 1783-85.
The Ohio Supreme Court found that the third, fourth and fifth propositions of law were interrelated and addressed them in reverse order. In the fifth proposition of law, Clark argued that a tape recording placed in evidence may not be replayed for the jury during its deliberations, citing State v. Ross, 85 N.M. 176, 510 P.2d 109 (1973). In the fourth proposition of law, Clark contended that the trial court should not have ruled on the jury's request to rehear his taped confession outside the presence of himself or his counsel. Clark's third proposition of law asserted that the court of appeals incorrectly stated and decided the issue presented in the fourth proposition, in contravention of App.R. 12(A), and that a remand to the appellate court was necessary under Danner v. Medical Center Hospital, 8 Ohio St.3d 19 (1983). The Ohio Supreme Court dealt with these issues as follows:
. . . [W]e reject appellant's fifth proposition of law for several reasons. First, New Mexico seems to have retreated from the holding of Ross, supra, in State v. Fried (App. 1978), 92 N.M. 202, 585 P.2d 647. Thus, reliance on Ross appears to be very questionable. Second, most courts that have ruled on the specific question of allowing tapes or transcripts of tapes into the jury room have held such a practice to be proper. State v. Triplett (1956), 248 Iowa 339, 79 N.W.2d 391; State v. Reyes (1957), 209 Or. 595, 308 P.2d 182; Hampton v. State (Alaska 1977), 569 P.2d 138; Jackson v. State (1980), 274 Ind. 297, 411 N.E.2d 609; State v. Ahmadjian (R.I. 1981), 438 A.2d 1070; State v. Poulos (1982), 230 Kan. 512, 639 P.2d 477; State v. Evans (Mo. 1982), 639 S.W.2d 792; State v. Barbo (Minn. 1983), 339 N.W.2d 905; State v. Halvorson (N.D. 1984), 346 N.W.2d 704; Chennault v. State (Tex.App. 1984), 667 S.W.2d 299; State v. Kennedy (App. 1979), **851 122 Ariz. 22, 592 P.2d 1288; People v. Walker (1957), 150 Cal.App.2d 594, 310 P.2d 110; but, see, Basham v. State (Okla.Crim.App. 1959), 340 P.2d 461. Two states have held that, while tapes may not go to the jury room, they may be replayed for the jury as long as this is done in open court. Franklin v. State (1976), 74 Wis.2d 717, 247 N.W.2d 721; Owens v. State (1981), 248 Ga. 629, 284 S.E.2d 408. See, generally, Annotation (1971), 37 A.L.R.3d 238.
The only reported Ohio case on point has followed the majority rule and permitted the replaying of a videotape exhibit during jury deliberations. "It is common practice to send exhibits admitted into evidence into the jury room. * * * Once in the jury room, the exhibits may be examined by the jury to any extent it desires. * * * We find no prejudicial error in the jury's viewing a second time an exhibit properly admitted into evidence." State v. Fellows (1975), 47 Ohio App.2d 154, 158-159, 1 O.O.3d 249, 252, 352 N.E.2d 631, 635.
Generally, the propriety of sending a defendant's confession into the jury room rests with the sound discretion of the trial judge. State v. Doty (1916), 94 Ohio St. 258, 113 N.E. 811. Since we believe it is not a per se abuse of discretion to allow tape recordings to be replayed in the jury room, the only question remaining on this aspect is whether it was an abuse of discretion to replay the tape before the instant jury. Because we do not believe that the court's action in this regard amounted to an abuse of discretion as that term is defined, see, e.g., State v. Adams (1980), 62 Ohio St.2d 151, 16 O.O.3d 169, 404 N.E.2d 144, we affirm the court of appeals' decision on this issue.
As to the fourth proposition of law, appellant contends that he has an inviolable right to be present when the trial court rules on a request by the deliberating jury to replay portions of his tape-recorded confession. In relying on the decision in State v. Grisafulli (1939), 135 Ohio St. 87, 13 O.O. 440, 19 N.E.2d 645, appellant asserts that he has the right to be present, either personally or by counsel, at all stages of his trial.
The underlying facts assisting our decision on this issue were placed on record by appellant's trial counsel, Darrell Van Horn, who attested to the facts set forth in support of appellant's motion for a new trial. According to Van Horn's uncontroverted recitation of facts, appellant's attorneys told the court that they would be having dinner at a particular restaurant. They then went to a different restaurant. While they were out, the jury had asked that appellant's confession be played again for them. According to the court, the bailiff tried but failed to contact the defense attorneys at the restaurant where they said they would be. The prosecutor was contacted and returned to the courtroom. At the court's direction, the bailiff went into the jury room and replayed the whole tape. The jury then asked him to replay a specific portion of the tape, and he did so. When the defense attorneys got back from dinner, the court told them what had happened.
While appellant is correct in his recitation of our holding in Grisafulli, supra, we believe that the record must affirmatively indicate the absence of a defendant or his counsel during a particular stage of the trial. State v. Blackwell (1984), 16 Ohio App.3d 100, 16 OBR 106, 474 N.E.2d 671. "Particularly, as regards a defendant's constitutional right to be present at all stages of his trial, prejudicial error exists only where `a fair and just hearing * * * [is] thwarted by his absence.'" State v. Williams (1983), 6 Ohio St.3d 281, 286, 6 OBR 345, 349, 452 N.E.2d 1323, 1330, quoting Snyder v. Massachusetts (1934), 291 U.S. 97, 108, 54 S.Ct. 330, 333, 78 L.Ed. 674. Thus, in State v. Blackwell, supra, where the defendant was absent during the giving of additional instructions to the jury, the court found caldweno prejudice because counsel was present and thus had an opportunity to object.
In the case at bar, the defense had a chance to object to sending the tape in with the jury. The record shows that the court told the jury during final instructions that a bailiff would replay the tape on request, and that defense counsel objected to this instruction. By the time the actual request came, the defense's objection had been heard and the decision to let the jurors hear the tape had been made. The court was not ruling on the jury's request, but carrying out a ruling it had already made.
A fair and just hearing was not thwarted by the court's allowing the tape to go to the jury without giving defense counsel an additional chance to be heard on the matter. Moreover, the Van Horn statement of facts does not affirmatively indicate that appellant himself was absent at any point — it states only that his attorneys were. In any event, since we view any error in this regard to be harmless, we affirm the court of appeals' disposition on this issue. With respect to appellant's third proposition of law, it is submitted that the court of appeals misunderstood the issue set forth in the fourth proposition of law before us, thus necessitating a remand under Danner, supra, since the appellate court essentially failed to comply with App.R. 12(A).
Upon a review of the circumstances surrounding this issue, we find no violation of App.R. 12(A) by the court of appeals below that would necessitate a remand under Danner, supra. We believe that appellant's assignment of error before the appellate court was directly disposed of by the court of appeals. In his reply brief, appellant attempted to clarify his argument in what amounted to be an entirely new assignment of error.
Since the court of appeals properly disposed of the assignment of error in accordance with App.R. 12(A), we reject appellant's third proposition of law.38 Ohio St.3d at 257-59. See also Vol. XXII at 1785-87.
In the sixth proposition of law, Clark argued that a prosecutor cannot tell a jury that its verdict of death is merely a recommendation to the court. He contends that such a statement impermissibly reduces the jury's sense of responsibility for the death sentence, citing Caldwell v. Mississippi, 472 U.S. 320 (1985). The Ohio Supreme Court disagreed:
In our view, the judge and prosecutor in the instant cause were correct in referring to the jury's decision as a recommendation that the trial court need not accept. See R.C. 2929.03(D)(2). Hence, we reaffirm our prior refusal to extend Caldwell so as to forbid telling juries that they can only recommend the death sentence and not impose it. See, e.g., State v. Buell (1986), 22 Ohio St.3d 124, 142-144, 22 OBR 203, 219-220, 489 N.E.2d 795, 811-813. Even if appellant were correct on this point, it is noteworthy that he failed to object to the alleged prosecutorial misconduct. Since we do not believe that the prosecutor's statements deprived appellant of a fair trial, any alleged prosecutorial misconduct was harmless beyond a reasonable doubt. See State v. Wade (1978), 53 Ohio St.2d 182, 7 O.O.3d 362, 373 N.E.2d 1244.38 Ohio St.3d at 259. See also Vol. XXII at 1787.
Clark's seventh proposition of law contended that the prosecutor's closing remarks in the mitigation trial regarding Dr. Kisin constituted prosecutorial misconduct in light of State v. Smith, 14 Ohio St.3d 13 (1984). The Ohio Supreme Court, having recited pertinent portions of the transcript, concluded:
The cited transcript excerpts follows:
During appellant's closing argument, counsel said: "* * * I think that when you look at it and the State will attack the credibility and try to claim that Dr. Kisin was a so-called paid witness by the defense. Well, when I asked Dr. Kisin * * * about how does Joe feel about living or dying, he indicated to you that a part of him he felt still wants to.
"Now, if he is just totally coming in here to build up Joe, would he sit here and tell you that?"
The prosecutor said of Dr. Kisin in his closing argument:
"Dr. Kisin, if he is a paid defense witness, I think that he should give his money back. He talks completely about hearsay, everything he said was a summary of what Joe said a summary of what Fay[e] said, a summary of what Mrs. Clark said, but not a summary of what the witnesses said[,] of what you heard." The prosecutor went on to say:
"Dr. Kisin, and I think the only thing his testimony was worth listening to is that in normal people they get less violent as time goes on and they become less prone to commit violent offenses, but we asked specifically in this case, and that is what we are talking about in this case, the historical background of Joe Clark, has he become less violent? No, he has become more violent. Has he become less prone to commit criminal offenses? No. He has become more prone.
"I guess if anybody should pay Dr. Kisin's bill it should be the State."38 Ohio St.3d at 259 n. 2.
Upon a review of the statements made and the context in which they were uttered, we do not believe that the remarks complained of here rise to the level of those we criticized in Smith, supra. Similar to our disposition in State v. Maurer (1984), 15 Ohio St.3d 239, 266-268, 15 OBR 379, 402-404, 473 N.E.2d 768, 792-794, we firmly believe beyond a reasonable doubt that the prosecutor's remarks concerning Dr. Kisin did not affect the jury's recommendation of death in the penalty phase of the proceedings. In any event, since appellant did not raise an objection either during or after the prosecutor's remarks, and since such remarks did not deprive appellant of a fair trial, State v. Wade, supra, any error in this respect was harmless.38 Ohio St.3d at 259-260. See also Vol. XXII at 1787.
In the eighth proposition of law, Clark argued that his inculpatory statement to Sgt. Przeslawski should have been suppressed for three reasons: first, the police questioned him outside the presence of counsel in violation of the Sixth Amendment; second, his waiver of constitutional rights was involuntary; and third, his statement was involuntary. The Ohio Supreme Court addressed each of these issues:
The Sixth Amendment "requires the existence of both a `criminal prosecutio[n]' and an `accused'" for the right to counsel to attach. United States v. Gouveia (1984), 467 U.S. 180, 188, 104 S.Ct. 2292, 2297, 81 L.Ed.2d 146. Therefore, the right attaches as soon as, but not before, adversary judicial proceedings between the state and the defendant begin "by way of indictment, information, arraignment, or preliminary hearing." Id. at 185, 104 S.Ct. at 2296, citing Kirby v. Illinois (1972), 406 U.S. 682, 92 S.Ct. 1877, 32 L.Ed.2d 411. Once the right attaches, police may not elicit statements from the accused that incriminate him as to the crime charged. Massiah v. United States (1964), 377 U.S. 201, 84 S.Ct. 1199, 12 L.Ed.2d 246.
In this case, appellant's uncounseled post-arraignment statements dealt with a crime other than the one for which appellant had been arraigned. The municipal court arraignment on January 17 dealt with "the incident that occurred the night before * * *," which was the Ohio Citizens robbery and assault. The statements introduced at trial dealt with the murder of Manning. When appellant was questioned on January 23, 1984, no adversary judicial proceedings in the Manning case had been held; the trial docket indicates that the indictment was not handed down until February 2, 1984.
There is no question that the right to counsel in the Ohio Citizens case had attached. It has never been held, however, that attachment as to one criminal charge entails attachment as to all other charges that might later be brought. Indeed, the United States Supreme Court has said precisely the opposite. "Incriminating statements pertaining to other crimes, as to which the Sixth Amendment right to counsel has not yet attached, are, of course, admissible at a trial of those offenses." Maine v. Moulton (1985), 474 U.S. 159, 180, fn. 16, 106 S.Ct. 477, 490, fn. 16, 88 L.Ed.2d 481 (dictum) (emphasis added). This is so because "to exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not yet attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public's interest in the investigation of criminal activities." Id. at 180, 106 S.Ct. at 489-90. Thus, initiation of adversary proceedings with respect to one charge causes the right to attach only as to that charge.
Assuming, however, that the Sixth Amendment right to counsel had attached with regard to the Manning murder, the question would arise as to whether appellant had effectively waived it. In Michigan v. Jackson (1986), 475 U.S. 625, 106 S.Ct. 1404, 89 L.Ed.2d 631, the high court held that once the right to counsel has attached and been asserted by an accused, he may not be interrogated unless he initiates the conversation. See also, Edwards v. Arizona (1981), 451 U.S. 477, 101 S.Ct. 1880, 68 L.Ed.2d 378.
Appellant asserts that in Jackson, supra, the court held that a waiver of Miranda rights is invalid when given in response to questioning initiated by the state after arraignment at which counsel has been appointed.
This assertion, however, is not totally correct. In Jackson, the defendant explicitly requested at the arraignment that counsel be appointed. In the instant cause, the record does not show whether appellant asserted his right to counsel at the arraignment. Since there is no indication in the record that counsel was requested at arraignment, the holding in Jackson, supra, does not apply herein.
Nevertheless, we should also consider whether appellant voluntarily, knowingly and intelligently waived his Miranda rights, North Carolina v. Butler (1979), 441 U.S. 369, 374-375, 99 S.Ct. 1755, 1758, 60 L.Ed.2d 286, and whether the confession was voluntary, Jackson v. Denno (1964), 378 U.S. 368, 84 S.Ct. 1774, 12 L.Ed.2d 908. While voluntary waiver and voluntary confession are separate issues, the same test is used to determine both, i.e., whether the action was voluntary under the totality of the circumstances. Fare v. Michael C. (1979), 442 U.S. 707, 99 S.Ct. 2560, 61 L.Ed.2d 197; State v. Edwards (1976), 49 Ohio St.2d 31, 3 O.O.3d 18, 358 N.E.2d 1051.
In Colorado v. Connelly (1986), 479 U.S. 157, 107 S.Ct. 515, 93 L.Ed.2d 473, the court held that "police over-reaching" is a prerequisite to a finding of involuntariness. Evidence of use by the interrogators of an inherently coercive tactic (e.g., physical abuse, threats, deprivation of food, medical treatment, or sleep) will trigger the totality of the circumstances analysis.
In the cause sub judice, the appellant does not assert that he was physically deprived, nor does the record reveal any type of physical deprivation. In fact, the record clearly indicates that appellant was allowed to use the restroom and was provided coffee and cigarettes. There is no indication that appellant was beaten, threatened or promised anything. Appellant stated during his confession that no threats or promises were made and the trial court specifically found no physical deprivation, mistreatment, threats or inducements.
Even if we were to find that the tactics used by the detectives in questioning appellant were coercive, thus necessitating a totality of the circumstances analysis, we are convinced that the waiver of rights and confession were given by appellant voluntarily.
At the hearing on appellant's motion to suppress statements, the main issue was whether appellant's mental condition negated his capacity to act voluntarily. While the defense's psychiatrist testified that a reading of the medical records led him to conclude that appellant suffered brain damage as a result of a suicide attempt, and that such damage would have impaired appellant's ability to make and form choices, a neurologist who treated appellant testified that appellant, from a medical-neurological standpoint, was capable of voluntarily waiving his rights.
It is also important to note that appellant had heard his Miranda warnings five times on the day prior to the time he made his confession and that he acknowledged that he understood his rights. In addition, the record shows that appellant signed a written waiver of rights which is strong proof that such waiver was valid. North Carolina v. Butler, supra.
Thus, we hold that under the totality of the circumstances, appellant's waiver and confession were voluntary. Therefore, we find appellant's eighth proposition of law to be unmeritorious.38 Ohio St.3d at 260-61. See also Vol. XXII at 1788-89.
In the ninth proposition of law, Clark contended that the firearm employed in killing Manning and all the testimony relating to it should have been excluded because the revolver was damaged by excessive firing while in the custody of the state, and because Clark's expert witness was unable to perform tests as a result. In support of this assertion, Clark cited United States v. Valenzuela-Bernal, 458 U.S. 858 (1982). The Ohio Supreme Court concluded:
We believe . . . that the apparent unavailability of the revolver for test-firing by the appellant's experts does not require a reversal of defendant's conviction. In State v. Martin (1985), 19 Ohio St.3d 122, 129, 19 OBR 330, 336, 483 N.E.2d 1157, 1164, certiorari denied (1986), 474 U.S. 1073, 106 S.Ct. 1037, 88 L.Ed.2d 808, rehearing denied (1986), 475 U.S. 1040, 106 S.Ct. 1253, 89 L.Ed.2d 360, we stated that "[i]n order for * * * [the accused] to succeed on this proposition, he must show that the trial court abused its discretion in the admission or exclusion of the evidence in question, and that the * * * [accused] has been materially prejudiced thereby. See State v. Hymore (1967), 9 Ohio St.2d 122 [38 O.O.2d 298, 224 N.E.2d 126]."
A careful review of the record reveals no evidence of bad faith on the part of the state in test-firing the subject revolver. In addition, we do not believe that the trial court abused its discretion in admitting the revolver and surrounding testimony into evidence. The record indicates that appellant was able to examine the revolver, as well as having access to the test-firings performed on the revolver prior to its becoming inoperable. In sum, we can discern no constitutional deprivation of rights with regard to this issue. Therefore, we affirm the appellate court's disposition on this issue.38 Ohio St.3d at 262. See also Vol. XXII at 1785-87.
Finding the tenth and twelfth propositions of law interrelated, the Ohio Supreme Court addressed them together. Clark contended in the twelfth proposition that his death sentence was disproportionate when viewed against the life sentence he received in the trial for the robbery-murder at the Lawson's store. Clark's tenth proposition asserted that, under App.R. 12(A), the court of appeals erred in failing to address the aforementioned issue separately; furthermore, his death sentence was disproportionate to the penalty imposed in similar cases. The Ohio Supreme Court addressed these issues in the following manner:
As in his prior proposition of law alleging a violation of App.R. 12(A) on the part of the appellate tribunal below, appellant's argument in this context is devoid of merit. In a capital case, R.C. 2929.05(A) mandates that "[i]n 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."
Clearly, the foregoing statutory provision requires a proportionality review irrespective of whether a litigant raises it as an issue. Thus, in capital cases, proportionality is not a proper subject of an assignment of error before a court of appeals so as to invoke the particular strictures of App.R. 12(A). To hold otherwise would expand the scope of proportionality review beyond the intendment of the General Assembly. In the instant case, for example, the appellate court would have been required to consider the murder at the Lawson's store in its proportionality review even though it is not a "similar case" as construed by this court. Thus, we believe that the court of appeals acted properly in not considering the sentence rendered in the case of the murder at the Lawson's store since it was not a "similar case." As this court held in State v. Steffen (1987), 31 Ohio St.3d 111, 31 OBR 273, 509 N.E.2d 383, paragraph one of the syllabus, a reviewing court engaged in proportionality analysis need not consider cases where the death penalty was not imposed. For these reasons, we overrule appellant's tenth and twelfth propositions of law.38 Ohio St.3d at 262-63. See also Vol. XXII at 1790.
In the eleventh proposition of law, Clark argued that the court of appeals deprived him of his statutory right to a proper weighing of the aggravating circumstance versus the mitigating factors because it confused the facts of this case with those of the Lawson murder case. The Ohio Supreme Court found this argument meritless:
Assuming, arguendo, that the appellate court did indeed misunderstand the facts and, thus, wrongly weighed them, such error would be corrected by this court's independent weighing of the aggravating circumstance against the mitigating factors. Hence, remand would not be the proper remedy since the independent review required in capital cases would correct any errors or omissions prevalent in the prior proceeding. See Maurer, supra. Therefore, appellant's eleventh proposition of law is not well-taken.38 Ohio St.3d at 263. See also Vol. XXII at 1790.
Having so ruled, the Ohio Supreme Court independently weighed the aggravating circumstance against the mitigating factors, as required under O.R.C. § 2929.05(A).
. . . [T]he single aggravating circumstance alleged and proved beyond a reasonable doubt was that appellant committed the aggravated murder offense while committing, or fleeing immediately after committing aggravated robbery, and that he was the principal offender in the aggravated murder.
At the mitigation hearing, appellant called the Lucas County jail chaplain to testify to the morality of capital punishment, and a sociologist to testify to its lack of deterrent effect. He called his mother to testify to the events of his life from his birth to his father's death in 1963 and from approximately 1983 to the time of his arrest. Appellant also called Dr. Kisin, a psychologist, to testify about his discussions with appellant concerning the same period. Dr. Kisin also gave his opinion about appellant's state of mind during and after the murder and his prospects for rehabilitation. Appellant's two children testified that they did not want their father to be executed. Additionally, appellant made an unsworn statement on his own behalf. For its part, the state called Sgt. Przeslawski, who testified that appellant told him he attempted suicide because he did not want to return to prison.
There is evidence in the record that the victim, David Manning, attempted to resist the robbery, and it could be argued that resistance to a robbery attempt constitutes inducing or facilitating the offense. However, this would be an illogical reading of the statute. In our view, one has the right to use reasonable force to resist the commission of a crime. Whatever "inducing or facilitating the crime" may mean, it cannot mean a robbery victim, using no weapon, making an attempt to grab an armed robber. Assuming that Manning's action did induce the offense, it would be entitled to little weight as a mitigating factor for the same reason.
Additionally, there is no evidence in the record of duress, coercion, or strong provocation, or that appellant's capacity to appreciate the criminality of his conduct or conform to the law was impaired by any mental disease or defect. Appellant was thirty-five at the time of the offense, well past his majority, and no evidence suggests that his age is relevant to the crime or sentence. State v. Post (1987), 32 Ohio St.3d 380, 394-395, 513 N.E.2d 754, 768. He has five prior felony convictions, and was the principal and only offender. Thus, the mitigating factors of R.C. 2929.04(B)(2) through (6) do not apply.
The nature and circumstances of this crime are entitled to no great weight in mitigation. Appellant was a drug addict. His wife, who had been supporting his habit with her earnings as a prostitute, was in jail, and the appellant needed money. Appellant stated that he robbed the service station to get money for drugs. This does not weigh heavily, if at all, in mitigation. Appellant's need for drugs may have led him to rob, but it certainly did not require him to kill in the course of the robbery.
Appellant was, however, disadvantaged by his history and background. His father died when he was fifteen, and he lacked significant parental discipline after that. His intelligence was described as dull normal at best, borderline retarded at worst. Yet appellant has a high school equivalency degree and is literate. His low intelligence is entitled to some weight in mitigation. Cf. State v. Stumpf (1987), 32 Ohio St.3d 95, 106, 512 N.E.2d 598, 609. Appellant's daughter testified that she loved him and both she and her brother did not want him to die. Such testimony has never been afforded great weight as a mitigating factor.
The evidence concerning appellant's family life is mixed. According to his daughter, Cheryl, appellant had made efforts to be a good father. On the other hand, he let his wife prostitute herself to pay for his drug addiction. While a strong family background is entitled to some weight, Stumpf supra, the circumstances here suggest that this factor should be given little weight.
Appellant has stated that he feels remorse for his crime, and Dr. Kisin believed that his attempt at suicide demonstrated that. On the other hand, when Sgt. Przeslawski interrogated appellant, appellant originally denied what he had done. It is our belief that this denial does not indicate genuine remorse. Additionally, appellant told Przeslawski that he attempted suicide because he could not face prison. Still, because appellant's professions of remorse are backed by some evidence, they should be assigned at least some slight weight.
Despite the existence of some mitigating factors, the aggravating circumstance outweighs them beyond a reasonable doubt; therefore, we find that the death sentence rendered herein is appropriate. Appellant's remorse, his disadvantaged background, and his attempts to help his daughter cannot outweigh his killing Manning during an armed robbery. As the trial court observed, appellant "balanced [Manning's] life against a crass selfish motive."38 Ohio St.3d at 263-64. See also Vol. XXII at 1791-92.
Lastly, analyzing whether the death sentence imposed on Clark was excessive or disproportionate to the sentences imposed in similar cases, as required under O.R.C. § 2929.05(A), the Supreme Court of Ohio concluded that it was not, stating:
Appellant points to the most heinous aspects of other Ohio capital cases and notes that such aspects are absent here. Nevertheless, we hold that the death penalty here is proportionate to the death sentences approved for murder coupled with robbery in State v. Stumpf supra; State v. Barnes (1986), 25 Ohio St.3d 203, 25 OBR 266, 495 N.E.2d 922; State v. Scott (1986), 26 Ohio St.3d 92, 26 OBR 79, 497 N.E.2d 55; State v. Williams (1986), 23 Ohio St.3d 16, 23 OBR 13, 490 N.E.2d 906; State v. Mapes (1985), 19 Ohio St.3d 108, 19 OBR 318, 484 N.E.2d 140; State v. Martin, supra; and State v. Jenkins, supra. Mapes and Martin are especially significant in that both were robbery-murder cases without significant evidence presented in mitigation.
Although appellant argues that the death sentence is disproportionate to the life sentence he received in the trial involving the murder at the Lawson's store, the court need not consider that, for "[n]o reviewing court need consider any case where the death penalty was sought but not obtained * * *." State v. Steffen, supra, at 124, 31 OBR at 284, 509 N.E.2d at 395.
In summary, we first find that there is no merit to any of the specific propositions of law raised by the appellant concerning the jury trial that resulted in his conviction of the crimes described. Second, we find that the aggravating circumstance outweighs any and all mitigating factors attempted to be presented by appellant beyond a reasonable doubt. Third, we find the sentence of death to be appropriate in this case, as it is neither excessive nor disproportionate to the penalty imposed in similar cases. Therefore, in accordance with R.C. 2929.05(A), we affirm the conviction and sentence of death in this cause.38 Ohio St.3d at 264-65. See also Vol. XXII at 1792.
3. United States Supreme Court
Clark filed a petition for writ of certiorari in the United State Supreme Court challenging the state court rulings on direct review, raising the following questions:
1. Whether the Ohio Jury Instruction informing the jury that its decision in the penalty phase of a capital case is only a recommendation diminishes the jury's responsibility for its decision and misleads the jury concerning its role in sentencing, thus violating the Eighth and Fourteenth Amendments to the United States Constitution and this court's decision in Caldwell v. Mississippi.
2. Does the ruling of the Ohio Supreme Court permitting the introduction of evidence of the offender's prior criminal record at the penalty phase of its death penalty trial constitute an ex post facto enlargement of Ohio's death sentencing statute thereby denying the petitioner due process and equal protection of the law under the Fifth, Eighth and Fourteenth Amendments and Article I, Section 9 and 10 CL. I of the United States Constitution, especially where the court holds exactly the opposite one week later?
3. Because the petitioner's right to counsel attached at his arraignment and was in effect during post-arraignment interrogations, did admission of a confession obtained at these interrogations violate his rights under the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and this court's decision in Arizona v. Roberson?
4. In determining whether the evidence in a capital trial warrants giving of a lesser included offense instruction under Beck v. Alabama, are the defendant's rights under the Fourteenth, Eighth and Sixth Amendments to be free from substantial risks of an unwarranted conviction and an arbitrary death sentence violated by:
a. The state court viewing the evidence in the light most favorable to the prosecution, rather than the defense; and/or
b. The state courts unforeseeably and retroactively altering the degree or type of proof necessary to prove the capital crime, when determining whether the evidence warranted an instruction on a lesser offense?
The Supreme Court denied certiorari on March 10, 1989, Clark v. Ohio, 489 U.S. 1071 (1989), as well as Clark's petition for rehearing. Clark v. Ohio, 490 U.S. 1042 (1989). On May 15, 1989, the Ohio Supreme Court granted Clark a stay of execution to allow Clark to pursue postconviction proceedings. B. State Postconviction Proceedings 1. Trial Court
Apparently on April 5, 1989, the Ohio Supreme Court had terminated the previously-imposed stay of execution and set an execution date for July 3, 1989. On May 15, the Ohio Supreme Court granted Clark a stay of execution for six months, during which time he was to file a petition for postconviction relief. On November 20, 1989, however, Clark filed a motion for a stay of postconviction proceedings pending resolution of public record litigation that he had initiated. A related mandamus/public records action filed by Clark on April 4, 1990 ended with the Ohio Supreme Court's decision of February 5, 1992. See State ex rel. Clark v. City of Toledo, 62 Ohio St.3d 452, 584 N.E.2d 662 (1992). The case basically sat on hold for six years until Clark's amended postconviction petition was filed.
Represented now by attorneys David H. Bodiker and Tanya J. Poteet, Clark next sought state postconviction relief, pursuant to O.R.C. § 2953.21, in the Lucas County Court of Common Pleas. His amended petition, filed on November 1, 1996, raised the following claims:
1. The judgment and sentence against Clark are void or voidable due to trial counsel's ineffective assistance for failing to retain and introduce the testimony of a neuropsychologist who would have testified during the suppression hearing that Clark was suffering from organic brain syndrome which adversely affected his ability to voluntarily and intelligently waive his Miranda rights.
2. The judgment and sentence against Clark are void or voidable due to trial counsel's ineffective assistance for failing to retain and introduce the testimony of a pharmacologist who would have testified during the suppression hearing that Clark was suffering from opioid withdrawal syndrome which adversely affected his ability to voluntarily and intelligently waive his Miranda rights.
3. Clark's conviction and sentence are void or voidable due to trial counsel's ineffective assistance for failure to introduce the testimony of a neuropsychologist during the mitigation phase who would have testified regarding the effect of Clark's brain disorder on Clark at the time of the offense.
4. Clark's conviction and sentence are void or voidable due to trial counsel's ineffective assistance for failure to introduce the testimony of a pharmacologist during the mitigation phase who would have testified regarding Clark's history of substance abuse and its effect on Clark at the time of the offense.
5. Clark's conviction and/or sentence is void or voidable because his trial attorneys failed to properly investigate and present mitigating evidence which was available at the time of Petitioner's trial (e.g., testimony of experts regarding his brain disorder and addiction to drugs, testimony of family and friends regarding his family background).
6. Clark's conviction and sentence are void or voidable because the Petitioner was denied the effective assistance of counsel beginning in voir dire and ending in the mitigation phase of his trial.
7. Clark's conviction and sentence are void or voidable because he was denied the assistance of counsel after he was released from the hospital and in the custody of the police.
8. Clark's conviction and sentence are void or voidable due to the State of Ohio's withholding of exculpatory or favorable evidence.
9. Clark's conviction and sentence are void or voidable because he was tried in a forum that was unduly influenced by media coverage of his case.
10. Clark's conviction and sentence are void or voidable because the trial court denied to Petitioner the opportunity to examine prospective jurors during the individual sequestered voir dire regarding pre-trial publicity. The trial court instead ordered such examination to be conducted during general voir dire.
11. Clark's conviction and sentence are void or voidable because he was deprived of a fair trial and impartial jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution due to the trial court's exclusion of potential juror Donna Littrell.
12. Clark's conviction and sentence are void or voidable because the State of Ohio presented testimony of the victim's wife which was irrelevant to the proceedings.
13. Clark's conviction and sentence are void or voidable because the firearm allegedly used by Clark was rendered inoperable by agents of the State of Ohio prior to Clark having an opportunity to have the firearm scientifically tested.
14. Clark's conviction and sentence are void or voidable because trial counsel employed a firearms "expert" who admitted on cross-examination that he spends only five percent of his occupational time working in firearms analysis.
15. Clark's conviction and sentence are void or voidable because Clark was denied a fair trial when the court allowed only four days for preparation for penalty phase proceedings.
16. Clark's conviction and sentence are void or voidable because the trial court gave improper instructions and committed error during the mitigation phase of the proceedings.
17. Clark's conviction and sentence are void or voidable because the sentence of death is per se excessive and disproportionate to the penalty imposed in Clark's separate trial for aggravated murder pertaining to Count I of the indictment. The facts and evidence presented with regard to Count I were virtually identical to the facts and evidence of Count II, for which Clark received a sentence of death.
18. Clark's conviction and sentence are void or voidable because he has been denied a meaningful proportionality review by the Ohio courts.
19. Clark's conviction and sentence are void or voidable because the use of the electric chair to impose a death sentence constitutes cruel and unusual punishment. Death by electrocution constitutes a blatant disregard for the value of human life, entails unnecessary and wanton infliction of pain and diminishes the dignity of man.
20. Clark's conviction and sentence are void or voidable because the pre-trial, guilt and mitigation phases of his trial were replete with errors. The cumulative effects of those errors and omissions made his sentence of death unreliable and inappropriate.
The amended petition to vacate or set aside judgment and/or sentence etc., Vol. XXIV at 2243 et seq., Clark set forth claims that were rambling and not discretely categorized. The Court has endeavored to articulate the claims as best it can.
On March 11, 1997, the State filed a motion for summary judgment. The trial court granted the State's motion on March 31, 1997. In doing so, the trial court summarily dismissed the following claims for relief, without discussing the merits, on the basis that they could have been raised on direct appeal and were not:
the eighth claim (asserting that defense counsel learned during the suppression hearing held on October 8, 1984 that the State had failed to reveal or turn over exculpatory statements and other information favorable to Mr. Clark);
the ninth claim (asserting that Clark was unable to receive a fair trial due to excessive media coverage);
the tenth claim (asserting that Clark should have been granted the opportunity to examine prospective jurors during individual sequestered voir dire regarding pretrial publicity);
the twelfth claim (asserting that certain testimony from the victim's wife should have been excluded);
the fifteenth claim (asserting that defense counsel had inadequate time to prepare for the mitigation phase of the trial);
the sixteenth claim (asserting that the trial court erroneously failed to maintain a complete and accurate record of the proceedings, instructed the jury that they must recommend the death sentence if they found beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors, overruled trial counsel's request to ask Clark limited questions during his unsworn statement to the jury, overruled Clark's request to make a statement to the jury from the witness stand, overruled the defense motion for a mistrial, instructed the jury that Clark was not under oath when he made his statement to the jury, and instructed the jury to make its findings with intelligence and impartiality or without bias, sympathy or prejudice); and
the nineteenth claim (asserting that death by electrocution was cruel and unusual punishment).See Vol. XXIV at 2625-27.
Having disposed of those claims, the trial court turned to the first, second, third, fourth, fifth, sixth and fourteenth claims for relief, all of which asserted ineffective assistance of trial counsel. Addressing them collectively, the court began:
It is well established that where, as here, a defendant is represented by new counsel on direct appeal, res judicata bars an ineffective assistance of counsel claim raised for the first time in a petition for post-conviction relief when the claim could have been raised on direct appeal without evidence outside the record. State v. Lenz (1994), 70 Ohio St.3d 527.
Vol. XXIV at 2628. The trial court then dismissed the fourteenth claim for relief (asserting that trial counsel was ineffective for retaining an inadequate firearms expert), finding that it was unsupported by evidence outside the record and, therefore, could have been argued on direct appeal. The court next addressed the remaining claims individually as they were ostensibly supported by evidence outside the record.
The sixth claim for relief enumerated various examples of ineffective assistance allegedly supported by the affidavit of attorney Adrian P. Cimerman. The examples enumerated by Attorney Cinerman included trial counsel's deficient voir dire performance, his failure to request that all side bars be recorded, his decision to allow the jury to hear Clark's prior criminal record, his failure to object to the court's definition of reasonable doubt in the jury charge during mitigation and his deficient mitigation investigation. The court concluded that this claim was barred by res judicata because resolution of the enumerated issues did not require evidence outside the record. Moreover, although the affidavit was arguably sufficient to show deficient performance, Clark failed to make the requisite showing of prejudice. See Vol. XXIV at 2629-2630.
The first and third claims for relief asserted that trial counsel was ineffective for failing to obtain and introduce the testimony of a neuropsychologist who would have testified that, during the crime and the confession, Clark was suffering from organic brain syndrome — which condition adversely affected his ability to understand his rights and make a reliable confession. In support, lie offered the affidavit of licensed psychologist Michael M. Gelbort, Ph.D. Based on Dr. Gelbort's own attestation that "It should * * * be noted that the patient's presentation is one where the lay person, and even a psychologist not trained in neuropsychology * * * could and likely would overlook the deficits . . .," Vol. XXIV at 2630, the trial court opined:
the uncontroverted facts firmly establish that a lawyer, untrained in neuropsychology, could not reasonably have been expected to have obtained neurological testing of petitioner. There being no evidence from which to infer that trial counsel's decision not to hire a neuropsychologist fell below the standard of reasonableness, petitioner's First and Third Claims for Relief are properly dismissed.
Vol. XXIV at 2631.
With respect to Dr. Gelbort's attestations regarding the effect of the organic brain syndrome on Clark's ability to knowingly and voluntarily confess to Manning's murder, the court noted that the trial court's decision denying suppression of the confession was based primarily on Clark's experience with criminal proceedings, on the repeated Miranda warnings, on the testimony of police officers who observed Clark, and on the lack of evidence of coercion. The Court surmised that the affidavit would not reasonably allow for the conclusion that trial counsel, by failing to present a neuropsychologist, so undermined the proper functioning of the adversarial process that the trial could not have reliably produced a just result. See Vol XXIV at 2632.
The trial court noted that the testimony of a neuropsychologist at the mitigation hearing would have been cumulative only. It concluded, therefore, that the profferred evidence was insufficient as a matter of law to show that it was reasonably probable that, without this testimony, the result of the trial would have been different. See Vol. XXIV at 2633.
The second and fourth claims for relief asserted that trial counsel was ineffective for failing to obtain and introduce the testimony of a pharmacologist who would have testified that, during the crime and the confession, Clark was suffering from opioid withdrawal syndrome. Here, Clark relied on the affidavit of pharmacologist Charles T. Kandiko, Ph.D., who concluded that:
. . . [I]t is my opinion, from a scientific viewpoint, that Mr. Clark was suffering from opioid withdrawal with the concomitant dysphoria during the police interrogation of him on January 23, 1984. This dysphoric state most probably had an adverse effect on Mr. Clark's ability to reason, adapt to changing topics, and in general tolerate a three hour interrogation.
Vol. XXIV at 2633-34. Based on this conclusion, the trial court ruled:
Such showing simply does not allow reasonably for the conclusion that trial counsel, by failing to present such evidence, so undermined the proper functioning of the adversarial process that the trial court would not have reliably produced a just result . . . The claim is necessarily denied.Id. at 2634 (citation omitted).
The fifth claim for relief asserted that trial counsel was ineffective for failing to present adequate mitigation evidence. As compelling evidence that should have been presented, Clark again referenced the affidavits of the psychologist and the pharmacologist. He suggested additional psychological testimony explaining his disabilities and integrating the testimony provided by friends and family. Clark also suggested testimony of additional family and friends regarding his drug use, the effect of his father's death on Clark and the circumstances under which he was raised. The trial court dismissed this claim because the testimony of additional family and friends would have been cumulative, and because Clark did not show that the failure to present the aforementioned evidence so undermined the proper functioning of the adversarial process that the trial court could not have reliably produced a just result. See Vol. XXIV at 2634-35.
Specifically, the trial court stated:
Evidence of this type is simply more of the same type of evidence which the Supreme Court of Ohio already held does not mitigate the aggravating circumstances of a "senselessly cruel aggravated murder in the course of an aggravated robbery." See State v. Williams (1986), 23 Ohio St.3d 16.
Vol. XXIV at 2635.
In the seventh claim for relief, Clark argued that his conviction and sentence were void or voidable because he was denied the assistance of counsel after he was released from the hospital and into the custody of the police. The trial court ruled as follows:
Such claim was raised as petitioner's first assignment or error before the Sixth District Court of Appeals in State v. Clark (Dec. 24, 1986), Lucas App. No. L-84-443, unreported, and as his eighth proposition of law before the Supreme Court of Ohio in State v. Clark (1988), 38 Ohio St.3d 252. Upon addressing the claim, both courts dismissed it as meritless. Clearly, the claim was fully litigated on direct appeal of the judgment. Therefore, it is barred under the doctrine of res judicata from receiving additional consideration by this Court.
Vol. XXIV at 2622-23.
In the eleventh claim for relief, Clark asserted error in the exclusion of a potential juror, one Donna Littrell, due to her beliefs with respect to the death penalty. The trial court addressed this issue as follows:
The State argues that such claim merely particularizes the third assignment of error raised in the Court of Appeals that challenged the so-called "death qualification" of the jury in this case. Review of the Court of Appeals decision reveals, however, that the issue under consideration at that time concerned the trial court's exclusion of eight jurors who either could not or would not consider the imposition of the death penalty under any circumstances. Distinguishing Ms. Littrell's situation from that of the other eight jurors is an alleged statement by Ms. Littrell that she would follow the law as to the death penalty. In the opinion of this Court, such statement precludes a conclusion that the issue has been previously decided on appeal. Nevertheless, because the issue could have been raised on appeal, res judicata acts to bar its consideration in connection with Mr. Clark's petition for post-conviction relief.
Vol. XXIV at 2623.
In the thirteenth claim for relief, Clark contended that his conviction and sentence were void or voidable because the firearm he used was rendered inoperable by agents of the State prior to his having an opportunity to have the firearm scientifically tested. The trial court ruled:
This claim was squarely presented before the Court of Appeals as the second assignment of error and before the Supreme Court of Ohio as the ninth proposition of law. Upon consideration of the claim, both courts determined that there was no violation of Mr. Clark's rights. There can be no question but that the claim was fully litigated on direct appeal of the trial court's judgment. Therefore, petitioner's claim is necessarily dismissed.
Vol XXIV at 2623-24.
The sixteenth claim for relief raised two issues. First, it was reversible error for the trial court to instruct the jury that its decision concerning the death penalty was a recommendation. Second, it was error for the trial court to permit the State to inquire into and introduce evidence of the past criminal history of Clark when he went forward with character testimony. The trial court addressed the first issue as follows:
This issue was raised as the ninth assignment of error before the Court of Appeals and as the sixth proposition of law before the Supreme Court of Ohio. Both courts determined that there was no violation of Mr. Clark's rights with regard to the instruction. As the claim has already been accorded full and fair consideration on direct appeal of the trial court's judgment, it can be given no further consideration by this Court.
Vol. XXIV at 2624.
The trial court addressed the second issue as follows:
The admissibility of evidence of Mr. Clark's prior record was put before the Court of Appeals in the fourth . . . assignment of error and put before the Supreme Court of [Ohio] in the first proposition of law. Both courts determined that, under the circumstances of Mr. Clark's case, such evidence was properly admitted. The claim having been fully litigated on direct appeal of the judgment, it is barred from receiving additional consideration by this Court.
Vol. XXIV at 2624-25.
In the seventeenth claim for relief, Clark argued that the death sentence was excessive and disproportionate to the penalty he received for Count I, a separate aggravated murder. The trial court addressed this issue as follows:
Although the matter was not specifically addressed by the Court of Appeals, such court did conduct a proportionality review. In addition, the issue was raised before the Supreme Court of Ohio in petitioner's twelfth proposition of law. Finding Mr. Clark's argument to be without merit, the Supreme Court, quoting State v. Steffen (1987), 31 Ohio St.3d 111, stated that "`[n]o reviewing court need consider any case where the death penalty was sought but not obtained * * *.'" St. v. Clark (1988), 38 Ohio St.3d 252, 265. As the claim was fully litigated on direct appeal of the trial court's judgment, it is properly dismissed from consideration herein.
Vol. XXIV at 2625.
In the eighteenth claim for relief, Clark asserted that the reviewing courts did not conduct a meaningful review of the proportionality of his death sentence. The State argued that this claim should be dismissed pursuant to res judicata, in that Clark could have presented any challenge to the adequacy of the review to the state appellate courts. Although the trial court found the State's argument persuasive, it concluded:
an even more compelling reason to dismiss this claim is the fact that such claim is not properly raised in a post-conviction hearing; . . . On this basis, petitioner's Eighteenth Claim for Relief is dismissed as meritless.
Vol. XXIV at 2628 (parenthetical omitted).
In the twentieth claim for relief, Clark contended that the cumulative effect of errors made during the course of his trial rendered his death sentence unreliable and inappropriate. The trial court ruled as follows:
It having been determined that petitioner's First through Nineteenth Claims for Relief fail as a matter of law to afford any basis for post-conviction relief, petitioner's Twentieth Claim for Relief is necessarily dismissed.
Vol. XXIV at 2635.
2. Court of Appeals
On April 28, 1997, Clark appealed the trial court's decision denying post-conviction relief to the Ohio Court of Appeals, Sixth District, asserting the following assignments of error:
1. The trial court erred when it granted appellee's motion for summary judgment in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article I, Sections 2, 5, 9, 10 and 16 of the Ohio Constitution, and Ohio R. Civ. P. 56.
2. The trial court erred in its application of the doctrine of res judicata to appellant's claims for relief, thus violating this rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution, Article I, Sections 1, 2, 5, 9, 10, 16 and 20 of the Ohio Constitution.
3. The trial court erred in denying appellant's claims of ineffective assistance of counsel (petitioner's first through sixth claims for relief). The failure by counsel to obtain necessary experts and present available mitigating evidence violated appellant's rights as guaranteed by the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution, Article I, Sections 1, 2, 9, 10, 16 and 20 of the Ohio Constitution.
4. The trial court erred when it denied appellant an evidentiary hearing on his petition for post-conviction relief, thus violating his rights under the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution, Article I, Sections 1, 2, 9, 10, 16 and 20 of the Ohio Constitution.
5. The trial court erred in dismissing appellant's petition for post-conviction relief without allowing discovery to support the claims contained in the petition in violation of the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution, Article I, Sections 1, 2, 9, 10, 16 and 20 of the Ohio Constitution, and Ohio R. Civ. P. 26.
6. The trial court erred in dismissing appellant's petition to vacate or set aside sentence because each of the twenty claims for relief set forth a constitutional claim upon which relief should have been granted, thus violating the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution, Article I, Sections 1, 2, 9, 10, 16 and 20 of the Ohio Constitution.
7. Ohio does not provide an adequate corrective process in violation of the due process, the equal protection, and the supremacy clauses of the United States Constitution and Article I, Section 2, 10, 16 and 20 of the Ohio Constitution.
8. The cumulative error of appellant's substantive claims merits reversal or a remand for a proper post-conviction process.
The Court of Appeals affirmed the trial court. See State v. Clark, No. L-97-1151, 1998 WL 484119 (Ohio App. 6 Dist. Aug. 14, 1998). Finding that Clark's first, second, third, fourth and sixth assignments of error asserted that the trial court erred in granting summary judgment on his postconviction petition, the Ohio Court of Appeals addressed the arguments together. The first assignment of error contended that material factual issues, presented in affidavits and other exhibits in support of his postconviction petition, precluded summary judgment. Because of this evidence, the trial court erred by failing to hold an evidentiary hearing (the fourth assignment). For the same reason, his claims for relief could not have been fully litigated on direct appeal; thus, the trial court erred in finding that his claims were barred by the doctrine of res judicata (the second assignment). The third assignment asserted that the trial court incorrectly found that he was not entitled to relief on his ineffective assistance of counsel claims. The sixth assignment asserted that he should have been granted relief on each of his twenty claims for relief.
Turning to the trial court's rulings in its opinion granting summary judgment, the Court of Appeals synopsized and addressed the first four claims for relief alleged in the postconviction petition as follows:
In his first four claims for relief, appellant asserted that he was denied the effective assistance of counsel due to trial counsel's failure to obtain the assistance of a neuropsychologist, who could have provided at his suppression hearing, trial, and mitigation hearing, testimony regarding appellant's organic brain syndrome, and a pharmacologist, who could have provided testimony concerning appellant's opioid addiction and drug withdrawal.
Appellant attempted suicide by hanging while incarcerated on another matter, and was taken to the hospital for six days. Upon release from the hospital, appellant was taken to the Toledo Police Department and interrogated regarding the robbery-murder in this case. After waiving his Miranda rights, appellant eventually confessed to the murder. Appellant sought to suppress this statement.
In his petition for postconviction relief, appellant asserts that his trial counsel should have presented testimony from a neuropsychologist and a pharmacologist to show that appellant was incapable of knowingly and voluntarily waiving his Miranda rights. He argued that, because this evidence was not presented, his statement to the police was allowed at trial; thus, leading to his conviction.
In support of his petition, appellant offered the affidavits of Michael M. Gelbort, Ph.D., a licensed clinical psychologist, and Charles T. Kandiko, Ph.D., a doctor of pharmacology. Dr. Gelbort was asked to conduct a neuropsychological evaluation of appellant and consider whether data obtained from that evaluation would have been relevant, had he been available at the time of appellant's trial. In his report, Dr. Gelbort concluded in relevant part:
"The patient exhibits an Organic Brain Syndrome (OBS) at the time of testing. * * * [T]he condition was present at the time of the offense for which he has been convicted and was made worse as a result of the effects of the suicide attempt. It is likely that each of these problems contributed to the patient's neuropsychological dysfunction and that all were in effect and had an affect on his behavior at the time of his trial. Furthermore, his impaired cognitive abilities (caused by the OBS) would have caused him to be less able than a normal individual to comprehend the meaning of Miranda rights and be unable to weigh and deliberate his options in a normal fashion. This would have been the case at the time his confession was elicited in this case. As noted, the patient's deficits are especially prevalent when he under stress, when affected by drug abuse (or withdrawal,) and in complex situations. This would have been the case at the time when the confession was elicited and would have further caused his confession to be other than freely given in a knowing fashion.
"Finally, the patient's behavior has not only been affected by the Organic Brain Syndrome/cognitive dysfunction from which he suffers, but also from the acute effects of substance abuse and eventual withdrawal. In particular, it is noted form (sic) the records that he was interrogated while withdrawing from psychoactive substances. Withdrawal is an emotionally and cognitively draining and debilitating experience during which cognitive abilities are further clouded or impaired from their operant state. Patient's (sic) who are in withdrawal will often say or do whatever they are asked to end a situation (questioning or interrogation) which is most often found to be exhausting, confusing, and may be experienced as physically nauseating. Information obtained from individuals in this state cannot be viewed as being as valid and accurate as that obtained form (sic) someone who is not under such duress and who may not acquiesce simply to end the interrogation.
"While the hypoxia occurred after the criminal act, the data show that there were significant cognitive deficits which would have been caused by other etiologies and which would have been present at the time of the criminal act. It should also be noted that the patient's presentation is one where the lay person, and even a psychologist not trained in neuropsychology (or one who does not have the benefit of test data) could and likely would overlook the deficits. * * * Despite the neuropsychological deficits not having an overt, outwardly observable physical manifestation, they are real, readily observable in the test data, and the patient's history is clearly indicative of their presence. Review of the patient's history obviously signal (and did signal at the time of the original trial) the presence of impaired functioning and should have lead to neuropsychological testing and investigation at that time."
In Dr. Kandiko's affidavit, he stated that he was asked to conduct a neuropharmacological evaluation pertaining to appellant and consider whether data obtained from that evaluation would have been relevant at the time of appellant's trial in 1984. Dr. Kandiko stated that he addressed two specific areas: the opioid withdrawal syndrome which affected appellant at the time of his arrest on capital charges and his mental status during his interrogation by police. After discussing the various substance addictions suffered by appellant, Dr. Kandiko gave the following analysis and conclusion:
"* * * patients in opioid withdrawal have a tendency to be highly responsive to suggestion, and placebo effects are formidable. * * *
"9. Mr. Clark, given his past history of opioid abuse (hydromorphone), was in my opinion suffering from opioid withdrawal at the time of his police interrogation. He had been in the hospital 6 days, but as the literature states a person in opioid withdrawal from a short-acting opioid will remain in severe withdrawal for as long as 10 days * * *. In addition, opioid abusers also experience prolonged withdrawal for as long as 6 months post detoxification * * *. Mr. Clark was interrogated without having any detoxification treatment. He would have been subject to all of the above physiological conditions with added anxiety and depression. A standard treatment for opioid abusers is to initially administer 20 mg methadone and adjust dosage as required * * *. Mr. Clark was never given the opportunity to undergo opioid treatment and detoxification. * * *
"10. A person suffering form (sic) opioid withdrawal is known to experience severe anxiety, restlessness, depression and discomfort * * *. [This is known as dysphoria.]
"11. Since Mr. Clark was never treated medically for his opioid addiction, he was most probably in a state of opioid withdrawal at the time of his interrogation by police. This opioid withdrawal would include the mental dysphoria state, as well as the other stated physiological symptoms that are known to occur, when medical treatment is absent * * *. Therefore, it is my opinion, from a scientific viewpoint, that Mr. Clark was suffering from opioid withdrawal with the concomitant dysphoria during the police interrogation of him on January 23, 1984. This dysphoric state most probably had an adverse effect on Mr. Clark's ability to reason, adapt to changing topics, and in general tolerate a three hour interrogation."
Appellant argues that because a personal examination was not done of him, the trial court denied his motion to suppress his statements to the police. Appellant cited this passage from the trial court's judgment entry:
"The Court has carefully examined the testimony of both Dr. Mareska and Dr. Tanay. Although Dr. Mareska would not give a psychiatric opinion, his testimony did illuminate discrepancies in some of the significant items upon which Dr. Tanay based his conclusion. The Court notes further that none of the hospital records relied upon contained any evaluations or progress reports of the defendant's mental or emotional condition. This Court is hesitant to rely solely upon a psychiatric opinion based upon reconstruction of records without any personal examination of the defendant."
Appellant argues that he suffered prejudice by his counsel's failure to present such evidence during the hearing on the motion to suppress and during mitigation. In essence, had the evidence been presented at the hearing on the motion to suppress, the trial court may have found that appellant did not voluntarily and knowingly waive his Miranda rights. As such, his confession would have been suppressed and the jury would not have heard it. If the jury had not heard his confession, then he may not have been convicted. In any event, the absence of this evidence during mitigation may have kept him from receiving a lessor sentence.
In ruling upon appellant's petition for postconviction relief, the trial court held that "* * * the uncontroverted facts firmly establish that a lawyer, untrained in neuropsychology, could not reasonably have been expected to have obtained neurological testing of petitioner." In making this finding, the trial court relied on the report of Dr. Gelbort, wherein he stated, "It should * * * be noted that the patient's presentation is one where the lay person, and even a psychologist not trained in neuropsychology * * * could and likely would overlook the deficits." The trial court denied appellant's claims stating that there was "no evidence from which to infer that trial counsels' decision not to hire a neuropsychologist fell below the standard of reasonableness * * *." The trial court also noted that appellant failed to make a sufficient showing of prejudice and stated, "Focusing first upon the trial court's decision denying suppression of petitioner's confession, it is clear that the decision was made independent of any psychological testimony, evidence, or rebuttal; rather, the trial court determined that petitioner's confession was voluntarily based on petitioner's experience with criminal proceedings and his being repeatedly informed of his Miranda rights in the instant case."
The standard for evaluating an ineffective assistance of counsel claim was enunciated by the Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraphs two and three of the syllabus, as follows:
"2. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. ( State v. Lytle [1976], 48 Ohio St.2d 391, 358 N.E.2d 623 * * *; Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.)
"3. To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different."
Petitioners bear the burden to plead both elements in order to adequately state a claim of ineffective assistance of counsel. See Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819. If the petition, affidavits, and/or supporting materials do not establish one of those elements, the petitioner has not stated a proper claim and the court may summarily dismiss the petition without a hearing. State v. Clark (April 17, 1998), Portage App. Nos. 96-P-0257 and 96-P-0258, unreported.
There is "`a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance * * *.'" Bradley, supra at 142, 538 N.E.2d 373, quoting Strickland, supra at 689. Ohio presumes a licensed attorney is competent. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 301, 209 N.E.2d 164. Counsel will not be deemed ineffective merely because a defendant is convicted and not acquitted. State v. Hunt (1984), 20 Ohio App.3d 310, 311, 486 N.E.2d 108.
In Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, the Supreme Court determined the standard to be applied to claims of ineffective assistance of counsel:
"The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial court cannot be relied on as having produced a just result." Id., at 686.
Appellant did present evidence dehors the record that defense counsel could have presented during the suppression hearing; however, the evidence is insufficient to establish that counsel's performance was deficient or that the defense was prejudiced by counsel's ineffectiveness. See Bradley, supra. Although defense counsel did not present an expert who had personally examined appellant, this fact alone does not demonstrate that counsel's actions fell below an objective standard of reasonable representation. Counsel did engage a psychiatrist to testify in appellant's behalf concerning his mental condition at the time of his confession. Moreover, appellant's own neuropsychologist, Dr. Gelbort, stated that it would have been difficult for a lay person to recognize appellant's deficits: "It should * * * be noted that the patient's presentation is one where the lay person, and even a psychologist not trained in neuropsychology * * * could and likely would overlook the deficits."
Additionally, appellant failed to demonstrate prejudice as a result of counsel's failure to call Dr. Gelbort. The Ohio Supreme Court has stated that evidence of police coercion or overreaching is necessary for a finding of involuntariness, and that simply evidence of a low mental aptitude on the part of the interrogee is not sufficient. State v. Hill (1992), 64 Ohio St.3d 313, 318, 595 N.E.2d 884.
Additionally, we note that, at the suppression hearing, the trial court heard testimony from a psychiatrist concerning appellant's diminished mental capabilities. Nevertheless, the trial court concluded that appellant's statements to the police were voluntarily made. The trial court described the psychiatrist's testimony as follows:
"Dr. Tanay testified that the defendant's state of mind at the time of his statements would have interfered with his ability to make choices in an informed, reasonable fashion. This conclusion was based upon the hospital records of St. Vincent, the court-ordered psychiatric evaluation of the defendant conducted by the Court Diagnostic and Treatment Center, the defendant's juvenile records, various police documents, and the taped confession statements of the defendant. Items of significance to Dr. Tanay included the following: the defendant's condition upon arrival at St. Vincent's wherein his pupils were nonreactive, he had no blood pressure, and an abnormal EEG; the Court Diagnostic and Treatment Center report of Dr. Archambeau wherein the defendant stated that he couldn't remember making the statements and that he (the defendant) had been unconscious for three or four days; the juvenile records of Clark which indicated an IQ of 75; and the police records which indicated that Clark had also confessed to something he didn't do. Essentially, Dr. Tanay concluded that there was a reasonable medical certainty that Clark suffered both acute and chronic brain damage and that it was likely that Clark was still depressed, which, when taken together, would make a person more susceptible to others. * * *"
Notwithstanding this testimony, the trial court held that appellant voluntarily waived his rights, finding that appellant was no stranger to the criminal justice system and that he had a psychiatric examination that indicated he displayed an exemplary knowledge of the workings of the criminal system. The court also stated that it was "not dealing with a young, inexperienced individual who might be easily intimidated by the interrogation process; but, rather with someone who is fairly sophisticated concerning the criminal process." The trial court also found that there was no evidence of "physical deprivation, mistreatment, threats, or inducement." Finally, the trial court considered the testimony of the interrogating officers. The trial court noted that Detective James Lagger testified that appellant "was very lucid, alert, and responded properly to all questions asked," that appellant responded that he was not under the influence of any drugs or alcohol or other mind-altering substance, and that appellant read aloud his rights, pronounced the words, had no difficulty concerning any of the words or terminology, and indicated that he understood what he had read.
With respect to Dr. Kandiko's testimony, the trial court also denied appellant's claims of ineffective assistance of counsel for failing to call a pharmacologist at the suppression hearing. The trial court quoted Dr. Kandiko's opinion that "This dysphoric state most probably had an adverse effect on Mr. Clark's ability to reason, adapt to changing topics, and in general tolerate a three hour interrogation." The trial court then stated:
"Such a showing simply does not allow reasonably for the conclusion that trial counsel, by failing to present such evidence, so undermined the proper functioning of the adversarial process that the trial court would not have reliably produced a just result. * * *"
We agree with the trial court. Appellant made no showing that defense counsel was incompetent in failing to call a pharmacologist. However, even assuming that defense counsel should have called a pharmacologist to discuss the effects of withdrawal, appellant has not demonstrated that this additional testimony would have changed the outcome of the suppression hearing, or the trial overall. Regardless of the testimony from Dr. Kandiko, who did not examine appellant at the time of the confession, there was testimony that appellant was lucid, seemed relaxed, and stated that he was not under the influence of drugs or alcohol at the time of the confession.
With respect to counsel's failure to offer testimony from a neuropsychologist and pharmacologist during trial and mitigation, we find that appellant failed to establish that counsel was deficient in not presenting such evidence. We further find that appellant failed to demonstrate any resultant prejudice. Appellant offered in mitigation, testimony regarding his mental state, drug addiction, and family history. Dr. Gelbort's and Dr. Kandiko's testimony regarding appellant's mental deficiencies and drug abuse would have been cumulative at best.
Hence, even accepting Dr. Gelbort's and Dr. Kandiko's affidavits as true, appellant failed to demonstrate that defense counsel's performance fell below an objective standard of reasonable representation or that appellant's defense was prejudiced from counsel's actions. See Bradley, supra. In addition, appellant has not demonstrated that there is a reasonable probability that the result of the trial would have been different had the testimony been presented at any stage of the proceedings. See Strickland, supra. As such, appellant has failed to set forth sufficient operative facts to establish that he was denied the effective assistance of counsel. Therefore, the trial court did not err in denying appellant's first, second, third, and fourth claims for relief without a hearing.
1198 WL 484119 at *4-9.
The fifth claim for relief contended that Clark was denied effective assistance of counsel due to counsel's failure to properly investigate and present mitigating evidence available at the time of the trial, including neuropsychological, psychological, pharmacological, and family information and testimony. The Court of Appeals then quoted the Ohio Supreme Court's summarization of Clark's mitigation testimony, 38 Ohio St.3d at 263-64 ( infra at 36-38), and concluded:
Upon a review of the affidavits attached in support of appellant's petition, we find that none of the proposed witnesses would add any information to that which had been provided to the jury. Therefore, even assuming that counsel should have attempted to obtain this additional evidence, because it was merely cumulative, appellant failed to demonstrate any resultant prejudice. See Bradley, supra.
Accordingly, the affidavits do not contain sufficient operative facts to demonstrate that appellant was denied the effective assistance of counsel during mitigation. Therefore, we find that the trial court did not err in denying appellant's fifth claim for relief without a hearing.
1998 WL 484119 at *9-11.
Having affirmed the trial court's rulings on the first five postconviction claims, the Ohio Court of Appeals addressed the trial court's rulings on the remaining postconviction claims for relief as follows:
In his sixth claim, for relief, appellant argued that he was denied the effective assistance of counsel because counsel failed to do the following: determine during voir dire each juror's opinion regarding capital punishment; object to statements to the jurors during voir dire and mitigation that a death verdict was a recommendation which the trial court could reject; object to the notion of diminished responsibility which accompanies the term "recommendation"; request that all side bar conferences be recorded; request that references to appellant's Lucasville GED be deleted; object to the trial court's definition of reasonable doubt; and conduct a thorough investigation into appellant's background and develop the testimony in this regard.
In support of this claim for relief, appellant submits the affidavit testimony of Attorney Cimerman who states that each of these alleged failures demonstrates an ineffective assistance of counsel. Although Mr. Cimerman's affidavit is outside the record, his testimony adds no evidence for consideration that could not have been gathered from the record. As such, all the alleged errors raised by appellant could have been determined and fully litigated on appeal based upon the record before the court. Moreover, appellant fails to establish that the outcome of the trial would have been different if not for counsel's alleged failures. Accordingly, appellant's sixth claim for relief is barred by the doctrine of res judicata. See Cole, supra.
In his seventh claim for relief, appellant argued that his conviction and sentence were void or voidable because he was denied the assistance of counsel after he was released from the hospital and in the custody of the police. Appellant does not offer any evidence dehors the record in support of this argument. Accordingly, this claim was properly dismissed as appellant failed to provide sufficient operative facts to establish a constitutional violation. See Jackson, supra.
Appellant argued in his eighth claim for relief that his conviction and sentence were void or voidable due to the state's withholding of exculpatory or favorable evidence, as discovered on October 8, 1984 at the suppression hearing. Appellant, however, offers no evidence dehors the record in support of this argument. Accordingly, as this matter could have been fully litigated on direct appeal, this claim is barred by the doctrine of res judicata. See Perry, supra.
Appellant argued in his ninth claim for relief that his conviction and sentence were void or voidable because he was tried in a forum that was unduly influenced by media coverage of his case, resulting in outrage by the community and creating political pressure to produce a death penalty verdict in this case. In support of this claim, appellant provided a number of newspaper clippings evidencing the media coverage of appellant's trial. The articles alone do not contain sufficient operative facts to demonstrate that appellant was denied a fair and impartial trial. As stated by the Ohio Supreme Court, "`a careful and searching voir dire provides the best test of whether prejudicial pretrial publicity has prevented obtaining a fair and impartial jury from the locality.'" State v. Davis (1996), 76 Ohio St.3d 107, 111, 666 N.E.2d 1099, citing, State v. Bayless (1976), 48 Ohio St.2d 73, 98, 357 N.E.2d 1035. Accordingly, the trial court was correct in not conducting an evidentiary hearing and in granting the state's motion for summary judgment on this claim. See Perry, supra.
Appellant argued in his tenth claim for relief that he was denied the opportunity to examine prospective jurors during individual sequestered voir dire regarding pre-trial publicity, rather than during general voir dire as ordered by the trial court. Although appellant again relies on the newspaper articles concerning his trial, the articles alone do not contain sufficient operative facts to demonstrate that appellant was denied a fair and impartial trial. This claim for relief could have been fully litigated on appeal based upon the record. According, appellant's claim is barred by the doctrine of res judicata. See Perry, supra.
Appellant argued in his eleventh claim for relief that he was deprived of a fair and impartial jury because of a potential juror being excused. Appellant offers no evidence dehors the record regarding this claim. As such, this claim could have been fully litigated on appeal based upon the record in this case. Accordingly, appellant's claim is barred by the doctrine of res judicata. See Perry, supra.
Appellant argued in his twelfth claim for relief that he was prejudiced by the testimony of the victim's wife at trial. Appellant offers no evidence dehors the record regarding this claim. As such, this claim could have been fully litigated on appeal based upon the record in this case. Accordingly, appellant's claim is barred by the doctrine of res judicata. See Perry, supra.
Appellant argued in his thirteenth claim for relief that he was prejudiced because the firearm allegedly used by appellant was rendered inoperable by agents of the state prior to appellant having an opportunity to have the firearm scientifically tested. This issue was fully litigated and considered on direct appeal and, therefore, is barred by the doctrine of res judicata. See Perry, supra.
Appellant argued in his fourteenth claim for relief that he was denied the effective assistance of counsel because appellant's firearms expert lacked the requisite credibility needed to be imparted to the jury. Appellant offers no evidence dehors the record regarding this claim. Moreover, this claim could have been fully litigated on appeal based upon the record in this case. Accordingly, appellant's claim is barred by the doctrine of res judicata. See Cole, supra.
Appellant argued in his fifteenth claim for relief that he was denied a fair trial when the trial court allowed only four days for preparation for penalty phase proceedings. This matter clearly could have been fully litigated on direct appeal and, therefore, is barred by the doctrine of res judicata. See Perry, supra, and Cole, supra.
Appellant argued in his sixteenth claim for relief that the trial court gave improper instructions and committed error during the mitigation phase of the proceedings. All of appellant's claimed errors could have been raised on direct appeal and fully litigated. In fact, appellant's claim that the trial court incorrectly instructed the jury that its findings as to the sentence was a recommendation, and his claim that it was error for the state to inquire into appellant's past criminal history, were directly dealt with on appeal. Accordingly, appellant's sixteenth claim for relief is res judicata. See Perry, supra.
Appellant argued in his seventeenth claim for relief that the sentence of death is per se excessive and disproportionate to the penalty imposed in appellant's trial for aggravated murder. This claim was raised before the Ohio Supreme Court in his twelfth proposition of law and fully considered. Accordingly, appellant's seventeenth claim is barred by the doctrine of res judicata. See Perry, supra.
Appellant argued in his eighteenth claim for relief that he has been denied a meaningful proportionality review by the Ohio courts. This matter could have been raised and fully litigated on direct appeal. As such, appellant's eighteenth claim is barred by the doctrine of res judicata. See Perry, supra.
Appellant's nineteenth claim for relief, that death by electrocution is cruel and unusual punishment, could have been raised and fully litigated on direct appeal. Accordingly, appellant's claim is barred by the doctrine of res judicata. See Perry, supra.
Appellant argued in his twentieth claim for relief that the cumulative effect of errors occurring during the pre-trial, guilt, and mitigation phases of his trial made his sentence of death unreliable and inappropriate. Because this court finds no error in the trial court's granting of the state's motion for summary judgment and the denial of appellant's petition, without a hearing, we find that this claim was properly denied.
As there were no substantive grounds for relief, the trial court was correct in denying appellant's petition on all claims without a hearing. Accordingly, we find appellant's first, second, third, fourth, and sixth assignments of error not well-taken. We affirm the trial court's granting of summary judgment as to all of appellant's claims in his petition for postconviction relief.
1998 WL 484119 at *11-13. The Court of Appeals, having disposed of the first, second, third, fourth and sixth assignments of error, affirmed the judgment of the trial court.
With respect to the remaining assignments of error, the Court of Appeals ruled as follows:
In appellant's fifth assignment of error, appellant argues that the trial court erred in dismissing his petition for postconviction relief without allowing discovery to support the claims contained in the petition.
Appellant served five duces tecum subpoenas, as follows: (1) Records Custodian, Lucas County Prosecutor's Office, requesting that the custodian bring any and all documents that were in his or her possession, custody, or control pertaining to this case and another of appellant's cases involving a different murder; (2) James Lagger, Toledo Police Department, requesting any and all records or notes pertaining to the investigation, arrest, and prosecution of appellant in this case; (3) David McCorvey, requesting any and all records or notes pertaining to the investigation, arrest, and prosecution of appellant in this case; (4) John C. Mareska, M.D., requesting any and all medical records and notes pertaining to the treatment given to appellant from January 17, 1984 to January 23, 1984 at St. Vincent's Hospital and any and all materials relating to testimony given at the pretrial suppression hearing on October 8, 1984; and (5) Records Custodian, Lucas County Prosecutor's Office, this time requesting any and all documents that are in his or her possession, custody, or control pertaining to an extensive list of cases.
A number of appellate districts have found that a trial court is not required to grant discovery during the initial stages of a postconviction proceeding. See, e.g., State v. Hill (Nov. 21, 1997), Hamilton App. No. C-961052, unreported; State v. Waddy, (June 10, 1997), Franklin App. No. 96APA07-863, unreported; State v. Campbell (Jan. 8, 1997), Hamilton App. No. C-950746, unreported; State v. Hawkins, (June 26, 1996), Hamilton App. No. C-950130, unreported; State v. Dennis (Nov. 19, 1997), Summit App. No. 18410, unreported; and State v. Benner, (August 27, 1997), Summit App. No. 18904, unreported. We also have found that R.C. 2953.21 does not require the trial court to grant discovery during the initial stages of a post-conviction proceeding. State v. Fox (May 16, 1997), Wood App. No. WD-96-031, unreported. If a trial court does not find substantive grounds for relief within the petition, it need not grant discovery. Hill, supra.
Here, the trial court did not rule on the state's motion to quash appellant's subpoenas; however, the trial court's denial of the postconviction petition implicitly denied appellant's discovery requests. See Hill, supra. Based on the foregoing, we find that the trial court did not err in denying appellant's discovery requests. Accordingly, appellant's fifth assignment of error is found not well-taken.
In his seventh assignment of error, appellant argues that the remedy provided in R.C. 2953.21, the post-conviction statute, is inadequate. Appellant reasons that the remedy must be inadequate given the fact relief is rarely, if ever, granted. This assignment of error lacks merit and is therefore not well-taken. See State v. Fox (May 16, 1997), Wood App. No. WD-96-031, unreported.
In his eighth assignment of error, appellant asserts that the cumulative error of his substantive claims merits reversal or a remand for a proper postconviction process. This court has thoroughly considered appellant's arguments and claims for relief. Having found no error in the trial court's denial of his petition, we find this assignment of error to be without merit. Accordingly, appellant's eighth assignment of error is found not well-taken.
1998 WL 484119 at *13-14.
3. The Supreme Court of Ohio
On September 28, 1998, Clark appealed the state court rulings on the postconviction petition to the Supreme Court of Ohio, under Case No. 98-1989. His memorandum in support of jurisdiction raised the following eight propositions of law:
Attorneys Bodiker and Poteet again represented Clark on this appeal.
1. The trial court erred when it granted appellee's motion for summary judgment in violation of the fifth, sixth, eighth, and fourteenth amendments to the United States Constitution, Article I, Sections 2, 5, 9, 10 and 16 of the Ohio Constitution, and Ohio R. Civ. P. 56.
2. The trial court erred in its application of the doctrine of res judicata to appellant's claims for relief, thus violating his rights under the fifth, sixth, eighth, ninth and fourteenth amendments to the United States Constitution and Article I, Sections 1, 2, 5, 9, 10, 16 and 20 of the Ohio Constitution.
3. The trial court erred in denying appellant's claims of ineffective assistance of counsel. The failure by counsel to obtain necessary experts and present available mitigating evidence violated appellant's rights as guaranteed by the fifth, sixth, eighth, ninth and fourteenth amendments to the United States Constitution and Article I, Sections 1, 2, 9, 10, 16 and 20 of the Ohio Constitution.
4. The trial court erred when it denied defendant-appellant an evidentiary hearing on his petition for post-conviction relief, thus violating his rights under the fifth, sixth, eighth, ninth and fourteenth amendments of the United States Constitution and Article I, Sections 1, 2, 9, 10, 16 and 20 of the Ohio Constitution.
5. The trial court erred in dismissing defendant's petition for postconviction relief without allowing discovery to support the claims contained in the petition in violation of the fifth, sixth, eighth, ninth and fourteenth amendments of the United States Constitution and Article I, Sections 1, 2, 9, 10, 16 and 20 of the Ohio Constitution and Ohio R. Civ. P. 26.
6. The trial court erred in denying appellant's petition to vacate or set aside sentence because each of the twenty (20) claims for relief set forth a constitutional claim upon which relief should have been granted, thus violating Clark's fifth, sixth, eighth, ninth and fourteenth amendments of the United States Constitution and Article I, Sections 1, 2, 9, 10, and 16 of the Ohio Constitution.
7. Ohio does not provide an adequate corrective process in violation of the due process, the equal protection, and the supremacy clauses of the United States Constitution and Article I, Sections 2, 10 and 16 of the Ohio Constitution.
8. The cumulative error of Clark's substantive claims merits reversal or a remand for a proper post-conviction process.
On January 20, 1999, the Ohio Supreme Court declined jurisdiction over Clark's appeal on the basis that he presented no substantial constitutional question. See State v. Clark, 84 Ohio St.3d 1468, 705 N.E.2d 1245 (1999). His motion for reconsideration was denied on February 17, 1999.
C. Federal Habeas Petition
Clark filed the pending Petition for Writ of Habeas Corpus, under 28 U.S.C. § 2254, on February 16, 2000. Represented by attorneys Kerry M. O'Brien and George C. Pappas, Clark challenges his conviction and sentence on the following grounds:
1. Clark was denied the effective assistance of counsel in his capital trial as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution.
2. Clark's conviction and sentence are void or voidable because he did not receive the effective assistance of counsel during the trial and penalty phases of his trial.
3. Clark's conviction and sentence are void or voidable because his trial attorneys failed to properly investigate and present mitigating evidence which was available at the time of Clark's trial.
4. Clark's conviction and sentence are void or voidable because Clark was denied the effective assistance of counsel during the entire course of his trial.
5. Clark's conviction and sentence are void or voidable because he was denied the assistance of counsel after he was released from the hospital and in the custody of the police.
6. Clark's conviction and sentence are void or voidable due to the State of Ohio's withholding of exculpatory or favorable evidence.
7. Clark's conviction and sentence are void or voidable because he was tried in a forum that was unduly influenced by media coverage of his case.
8. Clark's conviction and sentence are void or voidable because the trial court denied Clark the opportunity to examine prospective jurors during the individual sequestered voir dire regarding pretrial publicity.
9. Clark's conviction and sentence are void or voidable because he was deprived of a fair trial and impartial jury as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution due to the trial court's exclusion of potential juror Donna Littrell.
10. Clark's conviction and sentence are void or voidable because the State of Ohio presented testimony of the victim's wife which was irrelevant to the proceedings.
11. Clark's conviction and sentence are void or voidable because the firearm allegedly used by Clark was rendered inoperable by agents of the State of Ohio prior to Clark having the opportunity to have the firearm scientifically tested.
12. Clark's conviction and sentence are void or voidable because trial counsel employed a firearms "expert" who admitted on cross-examination that he spends only five percent of his occupational time working in firearms analysis.
13. Clark's conviction and sentence are void or voidable because Clark was denied a fair trial when the Court allowed only four days for preparation for penalty phase proceedings.
14. Clark's conviction and sentence are void or voidable because the trial court gave improper instructions and committed error during the mitigation phase of proceedings.
15. Clark's conviction and sentence are void or voidable because the sentence of death is per se excessive and disproportionate to the penalty imposed in Clark's separate trial for aggravated murder pertaining to Count I of the indictment. The facts and evidence presented with regard to Count I were virtually identical to the facts and evidence of Count II, for which Clark received a sentence of death.
16. The Ohio death penalty scheme is unconstitutional on its face in violation of the United States Constitution and Ohio Constitution.
17. The State failed to prove and the jury failed to find Clark had the specific intent to kill David Manning. The conviction and death sentence violated the Fifth, Sixth, Eighth and Fourteenth Amendments.
18. Clark's conviction and sentence are void or voidable because of the trial court's failure to instruct on the lesser included offense of involuntary manslaughter.
III. INITIAL CONSIDERATIONS
A. APPLICABLE STANDARD OF REVIEW: THE AEDPA
A federal court's consideration of a petition for a writ of habeas corpus, filed by a prisoner incarcerated pursuant to the judgment of a state court, is governed by 28 U.S.C. § 2254(a). Section 2254 permits the state prisoner to challenge his custody "only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." Id. Federal habeas corpus relief "does not lie for errors of state law." Lewis v. Jeffers, 497 U.S. 764, 780 (1990). Thus, "it is not the province of a federal habeas court to re-examine state-court determinations of state-law questions." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
The Antiterrorism and Effective Death Penalty Act of 1996, Pub.l. No. 104-132, 110 Stat. 1214 (1996) ("AEDPA"), signed into law on April 24, 1996, amended Title 28 of the United States Code and applies to all habeas petitions filed on or after its effective date of April 24, 1996. Barker v. Yukins, 199 F.3d 867, 871 (6th Cir. 1999), cert. denied, 120 S.Ct. 2658 (2000) (citations omitted); Herbert v. Billy, 160 F.3d 1131, 1134 (6th Cir. 1998). The AEDPA made significant changes in habeas law, including increased restrictions on which issues can be appealed and a heightened respect for state court factual and legal determinations.
Clark argues that the AEDPA does not apply to his Petition because he filed a motion for appointment of counsel prior to the enactment of the act — an argument soundly rejected by the Sixth Circuit in Williams v. Coyle, 167 F.3d 1036, 1040 (6th Cir. 1999).
Williams was convicted of aggravated murder in 1983. On April 18, 1996, six days before the effective date of the AEDPA, Williams filed a notice of intent to file a habeas petition and a motion for appointment of counsel. He did not file his § 2254 habeas petition until November 1, 1996. He, too, argued that the AEDPA was inapplicable to his case because of the pre-AEDPA filing of the notice of intent and motion for appointment counsel. The Sixth Circuit disagreed, concluding that a petition is filed for purposes of the AEDPA only when the petition for writ is filed. Williams, 167 F.3d at 1037, 1040.
Because Clark did not file the pending habeas petition until February 16, 2000, the operative date for AEDPA purposes, the AEDPA clearly applies to this Petition. Id. Having determined that the AEDPA applies to the Petition, the Court will next address the appropriate standard of review.
Under 28 U.S.C. § 2254(d) (enacted as a part of the AEDPA), a petition for writ of habeas corpus:
shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.Id.; Staley v. Jones, 239 F.3d 769, 775 (6th Cir. 2001).
The United States Supreme Court recently had occasion to interpret § 2254(d) in Terry Williams v. Taylor, 529 U.S. 362 (2000). With respect to the first clause of § 2254(d), the Court explained that the phrases "contrary to" and "unreasonable application of" must be given independent meanings.
On the very same day, the Supreme Court decided two cases captioned Williams v. Taylor, leading the undersigned to use the petitioner's full name.
First, a state-court decision is contrary to this Court's precedent if the state court arrives at a conclusion opposite to that reached by this Court on a question of law. Second, a state-court decision is also contrary to this Court's precedent if the state court confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at a result opposite to ours.Terry Williams, 529 U.S. at 405 (citing Green v. French, 143 F.3d 865, 869-70 (4th Cir. 1998), cert. denied, 525 U.S. 1090 (1999)). The Supreme Court construed the second clause of § 2254(d) as follows:
First, a state-court decision involves an unreasonable application of this Court's precedent if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case. Second, a state-court decision also involves an unreasonable application of this Court's precedent if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.Terry Williams, 529 U.S. at 407 (citing Green v. French, 143 F.3d at 869-70).
The Court pointed out that, in determining the reasonableness of the state court's decision, the federal court must employ an objective test, not a subjective one. When viewing the objective reasonableness of the state court decision, however, a federal court may not find an application to be unreasonable merely because it finds that the state court decision was erroneous or incorrect. Terry Williams, 529 U.S. at 410-412; Maranian v. Jackson, No. 99-2017, 2001 WL 700856 (6th Cir. Jun. 11, 2001).
With this determination, the Supreme Court rejected the Fourth Circuit's interpretation that a state court's application of federal law was only unreasonable "if the state court has applied federal law in a manner that reasonable jurists would all agree is unreasonable." Terry Williams, 529 U.S. at 409.
The Terry Williams Court also clarified that "clearly established Federal law, as determined by the Supreme Court of the United States" refers to "the holdings, as opposed to the dicta, of [the Supreme] Court's decision as of the time of the relevant state-court decision." 529 U.S. at 412. The Sixth Circuit has subsequently held that this holding "prevents the district court from looking to lower federal court decisions in determining whether the state court decision is contrary to, or an unreasonable application of, clear established federal law." Harris v. Stovall, 212 F.3d 940, 944 (6th Cir. 2000) (quoting Herbert v. Billy, 160 F.3d 1131, 1135 (6th Cir. 1998)), cert. denied, 121 S.Ct. 1415 (2001).
A habeas court may only rely on that class of Supreme Court precedent that would qualify as an "old rule" under Teague v. Lane, 489 U.S. 288 (1989). Terry Williams, 529 U.S. at 412. Under Teague, a case announces a new rule if the result was not dictated by precedent existing at the time the defendant's conviction became final. 489 U.S. at 301. Thus, the rule the petitioner relies upon must be "dictated or compelled" by the cited Supreme Court decision. Harris v. Stovall, 212 F.3d at 944.
Under the AEDPA, determinations of factual issues by a state court shall be presumed to be correct. 28 U.S.C. § 2254(e)(1). This presumption of correctness is rebuttable only by clear and convincing evidence otherwise. Id.
The AEDPA standard of review applies even when there is no state court decision on the merits to evaluate. Harris v. Stovall, 212 F.3d 940 (6th Cir. 2000). When the state court does not set forth an explanation for its ruling, habeas review is not de novo but remains deferential, since this Court cannot grant relief unless the state court's result is not in keeping with the strictures of the AEDPA. Harris, 212 F.3d at 943.
Put simply, the Court may review federal claims that were evaluated on the merits by a state court. Claims that were not so evaluated, either because they were never presented to the state courts (i.e., exhausted) or because they were not properly presented to the state courts (i.e., procedurally defaulted), are generally not cognizable on federal habeas review. The Court must now determine, as an initial matter, whether the asserted grounds for relief are properly before the Court.
B. EXHAUSTION
1. Law and Analysis
The process of presenting a constitutional claim to the state's highest court is called exhaustion. Under the AEDPA, as under the former habeas statute, a prisoner must exhaust his available state court remedies before petitioning for a writ of habeas corpus. 28 U.S.C. § 2254(b)(1)(A). Habeas relief cannot be granted based on claims that have not been exhausted. Id.; see also Rose v. Lundy, 455 U.S. 509 (1982). A State cannot be deemed to have waived the exhaustion requirement unless the State, through counsel, expressly waives it. 28 U.S.C. § 2254(b)(3).
An exception exists where the petitioner can show that there is an absence of available state corrective procedures or that circumstances exist that would render such process ineffective to protect the rights of the petitioner. 28 U.S.C. § 2254(b)(1)(B)(i-ii).
Here, though not expressly waiving the exhaustion requirement, the State concedes that Clark has exhausted all of his habeas claims.
The claims are exhausted because they were either raised properly on direct appeal to the Ohio Supreme Court, raised in postconviction and barred from review on the basis of res judicata, raised in an untimely Murnahan application, or there is no remaining avenue by which Clark can now fairly present these claims to the state courts.Return of Writ at 33. The Court concludes that the asserted grounds for relief have in fact been exhausted.
C. PROCEDURAL DEFAULT
1. Law
Federal courts "will not review questions of federal law decided by a state court if the decision of that court rests upon a state law ground that is independent of the federal question and adequate to support the judgment." Coleman v. Thompson, 501 U.S. 722, 729 (1991). Applied to the habeas context, the doctrine of procedural default acts to bar federal review of federal claims that a state court has declined to address because of the petitioner's noncompliance with a state procedural requirement." See Wainwright v. Sykes, 433 U.S. 72, 87 (1977). "In these cases, the state judgment rests on independent and adequate state procedural grounds." Coleman, 501 U.S. at 730.
For example, under Ohio law, all claims that were known, or should have been known, by the defendant at the time of trial or direct appeal must be raised on direct appeal from the judgment of conviction. Ohio provides an avenue of relief, namely postconviction review, for those claims that were unknown, or could not reasonably have been known, to the defendant until after the judgment of conviction. Ohio's postconviction relief statute, O.R.C. § 2953.21, provides in pertinent part:
(A) Any person convicted of a criminal offense or adjudged delinquent claiming that there was such a denial or infringement of his rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States, may file a petition at any time in the court which imposed sentence, stating time grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief. The petitioner may file such supporting affidavit and other documentary evidence as will support his claim for reliefId.
This statute has long been interpreted to bar postconviction consideration of any issue that was fully litigated before the judgment of conviction or on direct appeal from that judgment, or of any issue that could have been fully litigated before judgment of conviction or on direct appeal and was not. See State v. Perry, 10 Ohio St.2d 175 (1967), syllabus ¶ 7; State v. Combs, 100 Ohio App.3d 90, 98 (1994). The Perry Court stated:
Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.Perry at syllabus ¶ 9.
Under Perry, res judicata has been consistently applied by Ohio state courts to bar consideration of federal claims that were not timely asserted in state court proceedings. Morales v. Coyle, 98 F. Supp.2d 849, 860-61 (N.D. Ohio 2000). See, e.g., State v. McGuire, No. CA2000-10-011, 2001 WL 409424 at *10 (Ohio App. 12 Dist. April 23, 2001); State v. Twyford, No. 98-JE-56, 2001 WL 301411 at *4 (Ohio App. 7 Dist. Mar. 19, 2001) (noting that the Supreme Court recently reaffirmed Perry in State v. Szefcyk, 77 Ohio St.3d 93 (1996)). Further, this state procedural bar has routinely been observed by federal courts reviewing habeas petitions and is roundly deemed an independent and adequate state ground foreclosing federal habeas review. See, e.g., Davis v. Mitchell, 110 F. Supp.2d 607, 616 (N.D. Ohio 2000); Smith v. Anderson, 104 F. Supp.2d 773, 792-93 (S.D. Ohio 2000); Byrd v. Collins, 209 F.3d 486, 521 (6th Cir. 2000).
The Supreme Court of Ohio recognized an exception to the Perry rule in State v. Hester, 45 Ohio St.2d 71 (1976). The Hester Court concluded that, where the record does not disclose that the issue of competent trial counsel has been adjudicated, res judicata is an improper basis upon which to dismiss an Ohio postconviction petition. Id. at syllabus ¶ 2. The Ohio Supreme Court subsequently modified the Hester exception to the Perry rule in State v. Cole, 2 Ohio St.3d 112 (1982), finding that:
Where the defendant, represented by new counsel upon direct appeal fails to raise therein the issue of competent trial counsel, and said issue could fairly have been determined without resort to evidence outside the record, res judicata is a proper basis for dismissing defendant's petition for post-conviction relief.Id. at syllabus. These modifications to the Perry rule have led federal habeas courts to conclude that Ohio's postconviction statute, upon which Perry rests, satisfies due process. Morales, 98 F. Supp. 2d at 861. See also Davis v. Mitchell, 110 F. Supp.2d 607; Smith v. Anderson, 104 F. Supp.2d 773.
Returning to the issue of procedural default generally, if the district court concludes that the state prisoner has procedurally defaulted his federal claims in state court, federal review is barred unless the prisoner can demonstrate "cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice." Coleman, 501 U.S. at 749.
The United States Supreme Court recently reaffirmed this requirement in Bousley v. United States, 523 U.S. 614 (1998):
Where a defendant has procedurally defaulted a claim by failing to raise it on direct review, the claim may be raised in habeas only if the defendant can first demonstrate either "cause" and actual "prejudice," . . . or that he is "actually innocent."Id. at 622 (citations omitted).
Demonstrating "cause" requires showing that an objective factor external to the defense impeded counsel's efforts to comply with the State procedural rule. Murray v. Carrier, 477 U.S. 478, 488 (1986). Demonstrating "prejudice" requires showing a disadvantage "infecting" the trial with constitutional error. United States v. Frady, 456 U.S. 152, 168 (1982).
In the absence of cause and prejudice, federal courts are prohibited from reviewing issues that are procedurally defaulted unless the petitioner shows that his conviction is the result of a fundamental miscarriage of justice. A fundamental miscarriage of justice is a conviction of one who is "actually innocent." See Coleman, 501 U.S. at 750; Murray, 477 U.S. at 496. The Supreme Court requires the petitioner to demonstrate not merely a reasonable doubt in light of new evidence, but rather that "it is more likely than not that no reasonable juror would have convicted [the petitioner] in light of the new evidence." Schlup v. Delo, 513 U.S. 298, 327 (1995). The petitioner fails to meet his burden if "at least one juror, acting reasonably and properly instructed would have found" him guilty. Fairchild v. Norris, 51 F.3d 129, 130-31 (8th Cir.), cert. denied, 515 U.S. 1182 (1995); Schlup, 513 U.S. at 329.
In ascertaining whether a state court has addressed the merits of a petitioner's constitutional claim, federal courts must rely on the presumption that there is no independent and adequate state ground for the state court decision absent a clear statement to the contrary. Morales, 98 F. Supp.2d at 862 (citing Coleman, 501 U.S. at 735). Applying this presumption, the Sixth Circuit has established a four-step analysis to determine whether a claim has in fact been procedurally defaulted. See Maupin v. Smith, 785 F.2d 135 (6th Cir. 1986). The Court must determine (1) whether the petitioner failed to comply with an applicable state procedural rule; (2) whether the state courts actually enforced the state procedural sanction; (3) whether the state procedural bar is an "adequate and independent" state ground on which the State can foreclose federal review; and (4) if the above are met, whether the petitioner has demonstrated cause and prejudice, or a fundamental miscarriage of justice. Id. In determining whether a state court rested its holding on procedural default so as to bar federal habeas review, the Court must look to "the last explained state-court judgment." Combs v. Coyle, 205 F.3d 269, 275 (6th Cir. 2000); Couch v. Jabe, 951 F.2d 94, 96 (6th Cir. 1991) (quoting Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991)).
In sum, if the Court applies the Maupin test and determines that the petitioner has in fact procedurally defaulted a claim, federal habeas review of the claim is prohibited unless the petitioner can show cause and prejudice for the default, or a fundamental miscarriage of justice.
For an in-depth discussion of the policy concerns underlying the limited discretion that federal courts may exercise in reviewing habeas claims, see Calderon v. Thompson, 523 U.S. 538, 554-56 (1998).
2. Analysis
Respondent contends that Clark procedurally defaulted the sixth, seventh, eighth, ninth, tenth, twelfth, thirteenth, fourteenth, sixteenth and seventeenth grounds for relief (or "claims"). Clark first argues that the Court should review these claims on the merits because this case involves a death sentence and because the Court can exercise its discretion to do so. See Traverse at 17-19. However, as set forth in explicit detail, supra at 73-77, the Court cannot review procedurally-defaulted claims unless Clark can establish cause and prejudice, or a fundamental miscarriage of justice. Clark is plainly aware of this fundamental principle, recounted in his Traverse at 20.
Clark also asserts, without explanation, that many (unspecified) claims were not ripe for adjudication during the direct appeal process, he did not know about some of the (unspecified) errors which occurred during his trial until his case was in postconviction proceedings, the claims in question have repeatedly been challenged in state court, the procedural rules "have not been violated in such a manner as to justify the refusal of this Court to address the merits of [his] claims," and he was unable to establish evidence outside the record during state postconviction proceedings because he was not given an evidentiary hearing or an opportunity to conduct discovery. Traverse at 21-22. The only one of these broad assertions that deserves the Court's attention is the claim regarding the refusal of the trial court to conduct an evidentiary hearing or permit discovery on postconviction review.
The purpose of postconviction proceedings is to permit a defendant to raise legitimate issues that, for some legitimate reason, could not be raised on direct appeal. It does not serve as a backdoor for additional issues that were inadvertently omitted during the first round of appeals. Nor does it serve as a fishing expedition to get a line on new ones. Ohio's postconviction statute does not guarantee the petitioner an evidentiary hearing.
Before granting a hearing, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition and supporting affidavits, all the files and records pertaining to the proceedings against the petitioner, including but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of court, and the court reporter's transcript. Such court reporter's transcript, if ordered and certified by the court, shall be taxed as court costs. If the court dismissed the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal.
O.R.C. § 2953.21(C). A hearing need only be held where the issues cannot be resolved from the existing records and the evidentiary material filed with the pleadings. In order to earn postconviction relief, a petitioner must plead facts showing the violation of a constitutional right and resulting prejudice. State v. Cole, 2 Ohio St.3d 112 (1982). Speculation, unsubstantiated factual allegations and legal conclusions do not entitle a petitioner to relief, let alone a hearing. State v. Jackson, 64 Ohio St.2d 107 (1980); State v. Pankey, 68 Ohio St.2d 58 (1981); State v. Perry, 10 Ohio St.2d 175 (1967). Indeed, the postconviction statute expressly permits the filing of summary judgment motions, which can presumably be granted in the absence of disputed genuine, material factual issues without a hearing. See O.R.C. § 2953.21(D).
In this case, Clark presented exhibits and affidavits that were reviewed by the trial court and the court of appeals. The trial court concluded, citing the appropriate Ohio Supreme Court cases, that Clark raised no substantive grounds for relief that would justify a hearing. The court of appeals, after discussing the exhibits at length, affirmed the trial court's decision. See 1998 WL 484119 at *3-9. The Court has reviewed the exhibits and affidavits presented to the trial court and the state court decisions on this particular issue, and concludes that the decisions were correct for the reasons expressed by those courts. Clark did not provide any legitimate basis for the trial court to conduct an evidentiary hearing at the postconviction stage of review.
The exhibits include the affidavits of health professionals Michael M. Gelbort, Ph.D., Charles T. Kandiko, Ph.D. and Nancy Schmidtgoessling, Ph.D. and attorney Adrian Cimerman, on the issues of ineffective assistance of trial counsel; the affidavits of Clark's mother, grandmother, uncles, counsins, younger brother, sister, children, common-law wife and her sister, and a friend of Clark's father on the mitigation issues; newspaper articles regarding Clark's indictment and trial on the issues of venue and jury taint; articles and affidavits regarding the death penalty; affidavits of jurors discussing their confusion regarding the mitigation phase of capital cases and other issues; and the affidavit of an attorney who requested a pass and witnessed an execution by electrocution and other electrocution evidence on the issue of cruel and unusual punishment. See Vol. XXIV at 2316-2531.
Curiously present among the exhibits to support the general proposition that jurors misunderstand the mitigation phase of capital trials and that they feel compelled to vote for the death sentence was the affidavit of Diane Poitinger, a juror in this case. See Vol. XXIV at 2463-65. Aside from the fact that this affidavit, generated five years after trial, is improper evidence to challenge the verdict, see Crim. R. 606(b), it is virtually meaningless — seeing as she signed her name on a verdict form five years earlier that stated unambiguously that the jury unanimously found beyond a reasonable doubt that the aggravating circumstance outweighed the mitigating factors in this case, and recommended that the death sentence be imposed on Clark.
Finally, although Clark repeatedly pledges otherwise, he never directly challenges the Respondent's contention that he has procedurally defaulted any one of the individual claims in question. Nor does he address any of the exceptions to the Maupin test, i.e., cause, prejudice or a fundamental miscarriage of justice. Rather, his opposition to Respondent's position rests entirely on unsupported factual allegations and generalized assertions of the law — neither of which is sufficient to withstand Respondent's amply-supported procedural attack. Nonetheless, the Court has conducted its own review of the record to determine whether Clark has in fact procedurally defaulted the claims in question.
(i) Claim Six — Exculpatory Evidence
The sixth ground for relief asserts that Clark's conviction and sentence are void or voidable due to the State of Ohio's withholding of exculpatory evidence prior to the suppression hearing. This claim was first raised in state postconviction proceedings as the eighth claim for relief The trial court addressed this issue as follows:
[P]etitioner asserts that defense counsel learned during the suppression hearing held on October 8, 1984 that the State had failed to reveal or turn over exculpatory statements and other information favorable to Mr. Clark. Petitioner argues that as a result of this alleged withholding of exculpatory evidence, his conviction and sentence are void or voidable. Such matter could have been raised during the appellate process. As a result, the petitioner's Eighth Claim for Relief is properly dismissed. See Perry, supra.
Vol. XXIV at 2625.
In reviewing this ruling, the Ohio Court of Appeals held:
Appellant . . . offers no evidence dehors the record in support of this argument. Accordingly, as this matter could have been fully litigated on direct appeal, this claim is barred by the doctrine of res judicata. See Perry, supra.State v. Clark, 1998 WL 484119 at *11. The Ohio Supreme Court declined jurisdiction over the appeal of this ruling, stating (as to this and all of the Court of Appeals' rulings on postconviction) that Clark failed to raise a substantial constitutional question. 84 Ohio St.3d 1468.
The Court finds that this claim should have been raised on direct review as it was known to Clark at the time of such review, and that Clark offered no evidence outside the record to support this claim in state postconviction proceedings. The Court further finds that the state courts actually enforced the Perry rule. The res judicata rule enunciated in Perry is an adequate and independent state ground upon which the State can foreclose federal review, as previously explained, supra at 76-78. Clark did not address this claim in his Traverse, strongly suggesting that he has abandoned it. In any event, Clark has not shown cause and/or prejudice to excuse the procedural default. Nor does he proclaim actual innocence. Importantly, while Clark raises numerous issues, he has never denied having killed David Manning and the evidence overwhelmingly points to no other conclusion — removing from the realm of possibility a claim of actual innocence.
For all these reasons, the sixth claim for relief is dismissed because it is procedurally defaulted. (ii) Claim Seven — Prejudicial Forum
Even if the Court was inclined to review this claim on the merits, it would still fail. After seven years, Clark has not come forward with any alleged exculpatory evidence, making substantive review impossible.
The seventh ground for relief asserts that Clark's conviction and sentence are void or voidable because he was tried in a forum that was unduly influenced by media coverage of his case. More specifically, Clark claims that the trial court's ruling denying his motion to change venue due to media coverage was erroneous. The record shows that this claim was first raised in state postconviction proceedings as the ninth claim for relief, at which time the trial court dismissed it under Perry, explaining:
This issue could have been raised on direct appeal. See, e.g., State v. Davis (1996), 76 Ohio St.3d 107.
Vol. XXIV at 2626. In affirming dismissal of this claim, the Court of Appeals stated:
In support of this claim, appellant provided a number of newspaper clippings evidencing the media coverage of appellant's trial. The articles alone do not contain sufficient operative facts to demonstrate that appellant was denied a fair and impartial trial. As stated by the Ohio Supreme Court, "`a careful and searching voir dire provides the best test of whether prejudicial pretrial publicity has prevented obtaining a fair and impartial jury from the locality.'" State v. Davis (1996), 76 Ohio St.3d 107, 111, 666 N.E.2d 1099, citing, State v. Bayless (1976), 48 Ohio St.2d 73, 98, 357 N.E.2d 1035. Accordingly, the trial court was correct in not conducting an evidentiary hearing and in granting the state's motion for summary judgment on this claim. See Perry, supra.
1998 WL 484119 at *11.
The Court finds that this claim should have been raised on direct appeal since media coverage of this case was certainly known to Clark and his counsel at the time of trial. Moreover, Clark offered no meaningful evidence outside the record to support this claim in postconviction. The state courts actually enforced the Perry rule, an adequate and independent state ground foreclosing federal habeas review. Having shown no cause and prejudice to excuse the procedural default, or a fundamental miscarriage of justice, the seventh ground for relief is also dismissed.
(iii) Claim Eight — Voir Dire of Prospective Jurors about Pretrial Publicity
If this claim was properly preserved for habeas review, it would fail nonetheless. Clark's argument is summarized in one paragraph:
Particularly significant in the instant case is the fact that the Petitioner, CLARK, was charged with not one, but two death penalty cases, and several other offenses, all of which were reported extensively in the major metropolitan newspaper (Toledo Blade) for the Northwestern part of Ohio. The fact that a defendant is charged with more than one death penalty case is particularly unique in Northwest Ohio, and the failure of the trial judge to grant the Motion for Change of Venue unfairly prejudiced [Clark's] rights to a fair and impartial jury and trial.Traverse at 48. The Sixth Circuit has held that pretrial publicity, albeit pervasive and adverse, does not inevitably lead to an unfair trial. DeLisle v. Rivers, 161 F.3d 370, 382 (6th Cir. 1998). Nor does prior knowledge of the existence of a case in and of itself raise a presumption of jury taint. Id. Rather, as the state court of appeals noted, a thorough voir dire provides the best test of whether adverse pretrial publicity has tainted a local jury. Davis, 76 Ohio St.3d at 111.
A review of the record shows that the trial court conducted an exhaustive voir dire, the transcript of which fills five 3-inch binders. See Vols. VII-XI. The only evidence Clark presented to the trial court to support this claim was newspaper clippings of the case before and after the trial concluded. See Vol. XXIV at 2385-2447. Clark made no showing that media coverage of the trial had any impact on the jury whatsoever, and the voir dire did not elicit any responses indicating that a change of venue was necessary.
The eighth ground for relief alleges that Clark's conviction and sentence are void or voidable because the trial court denied his request to conduct an individual sequestered voir dire concerning pretrial publicity. According to Clark, a general voir dire of the panel on this issue tainted the entire jury. Further, a prospective juror did in fact taint the panel when he responded that he was aware of a shooting at an Ohio Citizens Bank. This claim was first raised in postconviction as the tenth claim for relief, at which time the trial court dismissed it under Perry, stating:
Respondent splits hair here, contending that Clark raised the general issue on postconviction but never previously raised the second issue regarding the individual juror. A review of the postconviction petition shows that Clark raised the issue of jury taint in the tenth claim for relief on postconviction, supporting his contention with the individual juror's response to the generally-put question. See Vol. XXIV at 2285.
Such could have been raised on direct appeal of the judgment. See, e.g., Davis, supra.
XXIV at 2626. In affirming dismissal of this claim, the Court of Appeals stated:
Although appellant again relies on the newspaper articles concerning his trial, the articles alone do not contain sufficient operative facts to demonstrate that appellant was denied a fair and impartial trial. This claim for relief could have been fully litigated on appeal based upon the record. Accordingly, appellant's claim is barred by the doctrine of res judicata. See Perry, supra.
1998 WL 484119 at *12.
The record shows that Clark did not raise this claim on direct appeal, despite his trial attorney's vigorous, contemporaneous on-the-record objections and verbal requests for a mistrial. See Vol. IX at 970-996. Clark's default in raising this claim was observed by the state courts in postconviction on res judicata grounds, an adequate and independent state ground barring habeas review. Because Clark failed to articulate, let alone show, cause and prejudice or a fundamental miscarriage of justice, the claim must be dismissed.
(iv) Claim Nine — Exclusion of Potential Juror Opposed to the Death Penalty
Even if this ground for relief was properly before the Court, it would have no merit. Absent proof that a trial was fundamentally unfair, discretionary decisions under state law as to how to conduct voir dire state no habeas claim. Mu'Min v. Virginia, 500 U.S. 415, 425-26 (1991). The United States Supreme Court has made clear that federal courts must accord state trial courts particularly wide discretion with regard to the propriety of voir dire questions. Daniels v. Burke, 83 F.3d 760, 766 (6th Cir. 1996) (citing Mu'Min 500 U.S. at 424). Individual voir dire is not constitutionally required. Mu-Min, 500 U.S. at 431; Deel v. Jago, 967 F.2d 1079, 1087 (6th Cir. 1992). Clark argues that:
one prospective juror did taint the jury panel when he stated, in open court, that he was aware of the shooting that occurred at the bank, and that he was certain that the Petitioner, CLARK, was involved.Traverse at 49. This statement could not be further from the truth. in response the court's question whether ". . . [a]nything . . . sticks out in your mind, friends or relatives that have been victimized or vandalized or incidents in your background that cause you any concern at this point," Mr. Bengela, the prospective juror in question, stated:
Well, a friend of mine at work has a friend that he bowls with that was involved in a shooting at Ohio Citizens several months ago, and I don't know if I should bring this up at this time or not.
Vol. IX at 967-68. At that point, questioning of Mr. Bengala was terminated. Clark has presented no evidence that the entire panel, let alone a single juror, was tainted based on this innocuous comment. Moreover, the record shows that the parties subsequently agreed on a method for proceeding with voir dire as to this particular issue. Id. at 996-1011. Having shown no harm, there is no constitutional claim.
The ninth claim for relief contends that Clark was denied a fair and impartial trial because a potential juror, Donna Littrell, was excused based on her views regarding the death penalty. Respondent contends that Clark procedurally defaulted this claim because he did not raise it, though based entirely on the record, until state postconviction proceedings.
A review of the record reveals that Clark challenged the exclusion of Littrell as a potential juror in his third assignment of error on direct appeal. See Vol. XIX at 735. Moreover, the Court of Appeals addressed this issue on the merits and rejected it. See 1986 WL 15254 at *6-7. Clark did not appeal this ruling to the Supreme Court of Ohio. Clark next presented this issue for postconviction review. The trial court ruled:
Petitioner's Eleventh Claim for Relief asserts error in the exclusion of a potential juror, one Donna Littrell, due to her beliefs with respect to the death penalty. The state argues that such claim merely particularizes the third assignment of error raised in the Court of Appeals that challenged the so-called "death qualification" of the jury in this case. Review of the Court of Appeals decision reveals, however, that the issue under consideration at that time concerned the trial court's exclusion of eight jurors who either could not or would not consider the imposition of the death penalty under any circumstances. Distinguishing Ms. Littrell's situation from that of the other eight jurors is an alleged statement by Ms. Littrell that she would follow the law as to the death penalty. In the opinion of this Court, such statement precludes a conclusion that the issue has been previously decided on appeal. Nevertheless, because the issue could have been raised on appeal, res judicata acts to bar its consideration in connection with Mr. Clark's petition for post-conviction relief. See Perry, supra.
Vol. XXIV at 2623. The Court of Appeals affirmed that ruling, noting that Clark "offer[ed] no evidence dehors the record regarding this claim." 1998 WL 484119 *12.
The Court finds that the decision of the postconviction court, recognizing that Clark raised this claim on direct appeal although the appellate court failed to review it and then refusing to review it because it "could have been raised on appeal," puts Clark in a precarious position not unlike a Catch-22. Because an argument could be made that this issue has been preserved for habeas review, the Court will give Clark the benefit of the doubt and address it on the merits in the next section. See infra, § V.(C).
(v) Claim Ten — Testimony of Murder Victim's Wife
The tenth ground for relief contends that Clark's conviction and sentence are void or voidable because the State presented testimony of the victim's wife that was irrelevant to the proceedings and merely raised sympathy for the victim. This claim was first raised in postconviction proceedings as the twelfth claim for relief. Citing Perry, the trial court stated:
There is no reason why this claim could not have been raised during appeal. Therefore, it is properly dismissed.
XXIV at 2626. The Court of Appeals affirmed dismissal, stating:
Appellant offers no evidence dehors the record regarding this claim. As such, this claim could have been fully litigated on appeal based upon the record in this case. Accordingly, appellant's claim is barred by the doctrine of res judicata. See Perry, supra.
1998 WL 484119 at *12.
The Court finds that Clark waived this claim by failing to object to the admittance of the testimony of Manning's widow at trial, and then failed to raise it on direct appeal although it was based on the record. The state courts properly invoked Perry and refused to review the claim when presented on postconviction. Clark has not shown cause or prejudice to excuse the procedural default, or a fundamental miscarriage of justice; thus, the claim is dismissed. (vi) Claim Twelve — Defense Firearm Expert
A review of this claim on the merits would be fruitless in any event. The decision to admit relevant evidence under state evidentiary rules is not reviewable on habeas. Estelle v. MeGuire, 502 U.S. 62, 71-72 (1991) (citing Marshall v. Lonberger, 459 U.S. 422, 438, n. 6 (1983). Notwithstanding, the testimony of Manning's widow regarding a phone call with Manning on the night of his murder as well as his clothing on that night were admissible to establish his last known location and his identity.
The twelfth ground for relief asserts that Clark's conviction and sentence are void or voidable because trial counsel employed a firearms "expert" who admitted on cross-examination that he spent only five percent of his occupational time performing firearms analysis. This claim was first raised in postconviction proceedings as the fourteenth claim for relief, at which tune the trial court concluded:
This assertion, unsupported by evidence dehors the record, could certainly have been argued on appeal. As such, it is properly dismissed. See Perry; Lenz.
Vol. XXIV at 2628-29. In affirming dismissal of this claim, the Court of Appeals determined:
Appellant offers no evidence dehors the record regarding this claim. Moreover, this claim could have been fully litigated on appeal based upon the record in this case. Accordingly, appellant's claim is barred by the doctrine of res judicata. See Cole, supra.
1998 WL 484119 at *12.
The Court finds that Clark failed to raise this claim, based on the record, on direct appeal. The state postconviction courts properly invoked Perry and refused to review it. Because Clark has not shown cause or prejudice to excuse the procedural default, or a fundamental miscarriage of justice, the claim must be dismissed.
(vii) Claim Thirteen Insufficient Time to Prepare for Penalty Phase
Even if this claim was not procedurally defaulted, it would be denied on the merits. The amount of time an expert devotes to firearm analysis does not, in and of itself, undermine his credibility or the truth of his conclusions — particularly where his testimony is not material to any issue at trial. Clark's firearms expert, Donald Knitskoff, testified that he had examined over one hundred firearms similar to Clark's weapon. Tr. at 560. There is no evidence that he was not qualified to testify regarding the weapon in question, and Clark does not allege such.
Apparently in the trial of Count I (the Lawson's murder), Clark did not challenge the qualifications of the State's firearms experts and presented no expert to counter the State's two firearms experts. According to Respondent, at no time during either trial did Clark dispute the State's firearms evidence. In light of his admissions during his statement to police and the fact that Clark has not disputed the firearms evidence, he has no claim.
In the event this assertion is viewed as an ineffective assistance of counsel claim, it still fails. Counsel's complete failure to consult a ballistics expert has been held not ineffective when such consultation would have contradicted a defendant's own statements. Westley v. Johnson, 83 F.3d 714, 722 (5th Cir. 1996), cert. denied, 519 U.S. 1094 (1997). Here, Clark's contention was not that he did not shoot Manning, but that he did not intend to kill Manning. Also, counsel's failure to consult an arms expert was held not ineffective when the same information was pursued with a cross-examination of the State's experts. Smith v. Angelone, 111 F.3d 1126, 1132 (4th Cir.), cert. denied, 521 U.S. 1131 (1997). Finally, there is no constitutional claim for ineffective assistance of experts. Wilson v. Greene, 155 F.3d 396, 401 (4th Cir.), cert. denied, 525 U.S. 1012 (1998).
Clark contends that he was denied due process and effective assistance of counsel when the trial court granted only four days to prepare for the penalty phase. Clark first raised this claim on postconviction as the fifteenth claim for relief. The trial court ruled:
The Fifteenth Claim for Relief contains an assertion that defense counsel had inadequate time to prepare for the mitigation phase of the trial. As this issue could have been raised on direct appeal, it is properly dismissed from consideration therein. See State v. Steffen, supra, at 121; Perry, supra.
Vol. XXIV at 2626. The Court of Appeals affirmed this ruling:
This matter clearly could have been fully litigated on direct appeal and, therefore, is barred by the doctrine of res judicata. See Perry, supra, and Cole, supra.
1998 WL 484119 at *12.
The Court finds that this claim was not raised on direct appeal but should have been since it was plainly known to Clark at that time. The state courts actually enforced the Perry rule, an adequate and independent state ground foreclosing habeas review. Having shown no cause and prejudice to excuse the procedural default, or a fundamental miscarriage of justice, the seventh ground for relief is dismissed. (viii) Claim Fourteen — Improper Jury Instructions
This claim would be denied as meritless if properly before the Court. A review of the mitigation phase of the trial shows that Clark presented a detailed mitigation case. The Ohio Supreme Court independently reviewed and thoroughly examined the penalty phase of Clark's trial in its opinion on direct appeal, and concluded as much. See 38 Ohio St.3d at 263-65.
The fourteenth ground for relief contends that Clark's conviction and sentence are void or voidable because the trial court gave improper instructions and committed error during the mitigation phase of proceedings. This claim contains numerous subissues:
(1) the trial court failed to maintain a complete and accurate record;
(2) the trial court improperly instructed the jury that its verdict was a recommendation;
(3) the trial court improperly instructed the jury that, if they found beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors, they had no choice but to recommend the death sentence;
(4) the trial court erroneously permitted the State to cross-examine and introduce evidence of the Clark's criminal past "when [Clark] went forward with testimony concerning his character;"
(5) the trial court improperly overruled Clark's request to ask Clark limited questions during his unsworn statement to the jury;
(6) the trial court improperly overruled Clark's request to make his unsworn statement to the jury from the witness stand;
(7) the trial court improperly overruled the defense motion for a mistrial;
(8) the trial court erroneously instructed the jury that Clark was not under oath when he made his statement to the jury; and
(9) the trial court erroneously instructed the jury that it was to make its sentencing recommendation with intelligence and impartiality and without bias, sympathy or prejudice.See Petition at 29-30. The claim also alleges that the trial court's instructions, combined with its errors, caused the jury to misunderstand its role and responsibility in the mitigation phase such that (as can best be interpreted by the Court):
(1) the jury finds it easier to recommend the death sentence because the actual sentence is rarely carried out;
(2) jurors feel compelled to recommend the death sentence once they find the defendant guilty of aggravated murder and/or jurors misunderstand the purpose of the mitigation phase;
(3) the jury does not properly weigh the aggravating and mitigating factors;
(4) the jury does not understand alternative sentencing options; and
(5) jurors want more information about the defendant in order to make the sentencing decision.Id. at 30-31. Finally, the mitigation phase is unreliable when, as here, a jury is incorrectly led to believe that the responsibility for determining the death sentence lies with the trial court. Id. at 31.
To the extent that this ground for relief raises the issue that it was error for the jury to be advised that its decision as to the death sentence was merely a recommendation, it was raised as the ninth assignment of error and the sixth proposition of law on direct appeal and is, thus, preserved for habeas review. To the extent that this ground for relief raises the issue that the trial court erred in permitting the state to introduce evidence of Clark's prior convictions during the mitigation phase, it was raised as the fourth assignment of error and the first proposition of law on direct appeal and is also preserved for habeas review. These two issues will be addressed on the merits in the next section. The remaining issues were either never raised in the state courts, or were not raised until postconviction review. In either event, they are procedurally defaulted.
(ix) Claim Sixteen — Constitutionality of Ohio's Death Penalty Statute
The sixteenth ground for relief contends that Ohio's death penalty statute violates the Eighth Amendment prohibition against cruel and unusual punishment and is applied in an arbitrary and discriminatory manner. Despite the obvious existence of this issue from the case's inception, Clark has never presented it to the state courts.
A claim not originally brought in state court that, in turn, has no state court remedy is procedurally barred. Davis v. Mitchell, 110 F. Supp.2d at 613 (citing Riggins v. McMackin, 935 F.2d 790 (6th Cir. 1991)). As before, Clark has not shown cause or prejudice to excuse the procedural default, or a fundamental miscarriage of justice; thus, the claim is dismissed. (ix) Claim Seventeen — Specific Intent
In any event, Clark's belated argument has no merit. To the extent that Clark contends that Ohio's statutory scheme is unconstitutional because the death penalty generally constitutes cruel and unusual punishment under the Eighth Amendment, it fails. Gregg v. Georgia, 428 U.S. 153 (1976); Jackson v. Anderson, 141 F. Supp.2d 841, 878-89 (N.D. Ohio 2001). Clark does not otherwise bother to explain how Ohio's capital statutory scheme violates the Eighth Amendment.
Clark also argues that, by giving prosecutors discretion in making indictment decisions, the Ohio capital statute provides for the unconstitutionally arbitrary and discriminatory imposition of the death penalty. However,
[t]he United States Supreme Court has never found that prosecutorial discretion, in and of itself, diminishes the legitimacy of a capital punishment scheme. Indeed, as the Sixth Circuit has noted, discretion is inherent in the criminal justice system:
It is well-settled that the procedural aspects of the administration of criminal justice abound with situations in which the exercise of discretion by a myriad of participants occupies a significant role in determining the destiny of an alleged offender. United States v. Talbot, 825 F.2d 991, 999 (6th Cir. 1987).Dennis v. Mitchell, 68 F. Supp.2d at 902.
The seventeenth ground for relief debuts Clark's contention that the State failed to prove, and the jury failed to find, that Clark had the specific intent to kill David Manning. This claim was never raised on direct appeal, despite being based on the record, or on postconviction review. Because Clark procedurally defaulted this claim and because he has not addressed, let alone shown, any of the exceptions to the procedural default rule, the claim is hereby dismissed.
Notwithstanding, a review of this claim on the merits would be unavailing. First, the jury was instructed on specific intent. Second, it is long settled that the aggravated murder statute does not require a finding by the jury, via verdict form or interrogatory, that a defendant specifically intended to kill its victim. State v. Jenkins, 15 Ohio St.3d 164 (1984) (interpreting O.R.C. § 2903.01(D)). Third, the evidence presented at trial supported a finding of specific intent. It showed that Clark employed a drawn, loaded gun in the commission of the robbery, and that he shot Manning after Manning had turned over the money. See, e.g., State v. Johnson, 56 Ohio St.2d 35, 39 (1978) (the use of an "inherently dangerous instrumentality" in a robbery evinces an intent to kill because "homicide . . . is a natural and probable consequence thereof").
V. GROUNDS FOR RELIEF
The Court now turns to those claims that have survived the Court's initial review. As explained supra at 62-71, the Court does not conduct a de novo review, but is limited to a determination of whether the state court's application of law is objectively reasonable.
A. Claims One through Four — Ineffective Assistance of Counsel
Claims one through four challenge Clark's conviction and sentence based upon ineffective assistance of trial counsel during the suppression hearing, and during the guilt and mitigation phases of the trial. The issues raised are, for the most part, interrelated. Thus, they will be addressed together below.
The Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the might . . . to have the Assistance of Counsel for his defence." The Sixth Amendment right to counsel exists in order to protect the fundamental right to a fair trial. Strickland v. Washington, 466 U.S. 668, 685 (1984) (citing Powell v. Alabama, 287 U.S. 45 (1932), Johnson v. Zerbst, 304 U.S. 458 (1938), and Gideon v. Wainwright, 372 U.S. 335 (1963)). The right to counsel has long been interpreted to mean the right to effective assistance of counsel. Strickland, 466 at 685 (citing McMann v. Richardson, 397 U.S. 759, 771, n. 14 (1970)).
In order to make an ineffective assistance of counsel claim, a habeas petitioner must establish two elements. First, the petitioner must show that counsel's performance was deficient. This requires the petitioner to show that counsel "made errors so serious that counsel was not functioning as the `counsel' guaranteed the defendant by the Sixth Amendment." Strickland, 466 U.S. at 688. Second, the petitioner must show that counsel's deficient performance resulted in actual prejudice. Actual prejudice arises when counsel's errors were "so serious as to deprive [petitioner] of a new trial." Id.
The Sixth Circuit recently stated:
With regard to the performance prong of the two-part test, a defendant must show that his counsel's representation fell below an objective standard of reasonableness. In reviewing the reasonableness of such counsel's performance, courts must be highly deferential and must be careful "to eliminate the distorting effects of hindsight, to reconstruct the circumstances of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." [ Strickland, 466 U.S.] at 689, 104 S.Ct. 2052. "[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation." Id. at 690-91, 104 S.Ct. 2052 (emphasis added). In essence, a "defendant must overcome the presumption that, under the circumstances, the challenged action `might be considered sound trial strategy'" to satisfy the performance prong of the Strickland test. Id. at 689, 104 S.Ct. 2052. With regard to the prejudice prong of the two-part Strickland test, a "defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id. at 694, 104 S.Ct. 2052. "It is not enough for the defendant to show that the errors had some conceivable effect on the outcome of the proceeding." Id. at 693, 104 S.Ct. 2052.Williams v. Coyle, No. 98-3793, 2001 WL 920272 (6th Cir. Aug. 16, 2001).
Clark first asserts that he suffered from organic brain syndrome and opioid withdrawal syndrome at the time he confessed to the murder of David Manning on January 23, 1984. He contends that these conditions affected his ability to voluntarily and intelligently waive his Miranda rights when lie confessed to the murder. He claims that his counsel was ineffective at the suppression hearing for failing to retain a neuropsychologist to examine him, and to testify as to his organic brain syndrome and the effect of his attempted suicide on this disorder and his ability to make voluntary and intelligent statements to the police. Clark also claims that counsel was ineffective for failing to call a pharmacologist to testify regarding his drug addiction and withdrawal syndrome and their affect on his ability to make voluntary, intelligent statements to the police. To support these claims on postconviction, Clark presented the affidavits of a pharmacologist, a neuropsychologist, and an attorney.
Although the ineffectiveness claims were not raised until the state postconviction proceedings, the trial court and the court of appeals addressed them on the merits.
Clark next asserts that counsel's failure to offer testimony from a neuropsychologist and a pharmacologist during the guilt and mitigation phases of trial rendered counsel's assistance ineffective, citing the aforementioned affidavits.
Finally, Clark asserts that he was denied effective assistance of counsel because of counsel's failure to investigate and present mitigating evidence in the form of neuropsychological, psychological, pharmacological and family information.
After citing the relevant case law, the Court of Appeals addressed these claims and the proffered affidavits at length. See supra at 53-60. The court found that Clark did not make the requisite showing of deficient performance or actual prejudice, and concluded that the trial court properly determined that a hearing was not warranted. It reasoned that Clark did not show that counsel was incompetent for failing to call a pharmacologist and that, in any event, Clark did not show that the additional testimony would have changed the outcome of the suppression hearing or overall trial. It noted that there was testimony that Clark "was lucid, seemed relaxed, and stated that he was not under the influence of drugs or alcohol at the time of the confession." 1998 WL 484119 at *8. Likewise, Clark did not establish that counsel's failure to offer testimony from a neuropsychologist and pharmacologist during the guilt or mitigation trials was deficient or that these omissions resulted in any prejudice. Finally, it noted that Clark offered testimony in mitigation regarding his mental state, his drug addiction and his family history, and that the additional testimony of the pharmacologist, neuropsychologist, and additional friends or family would have been cumulative at best.
The Court finds the Court of Appeals' reasoning persuasive. Clark does not show that his counsel's performance was deficient or that it rendered the jury's verdict unreliable. He certainly does not show that the state court's decision was an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States. Accordingly, this claim is denied.
B. Claim Five — Right to Counsel
Clark contends that his conviction and sentence are void or voidable because he was denied the assistance of counsel after his release from the hospital into police custody on a separate charge (the Ohio Citizens robbery and assault). It is undisputed that Clark was in custody for a charge other than the murder of David Manning at the time he confessed to Manning's murder. See, e.g., Traverse at 45 ("CLARK was in custody for a charge other than for this instant case."). Clark argues that his right to counsel in this case attached the moment criminal proceedings were commenced on the Ohio Citizens charge.
The Ohio Supreme Court considered and rejected Clark's argument, correctly citing the existing, applicable United States Supreme Court precedent. See infra at 32-34. That is, the Sixth Amendment right to counsel attaches the moment formal adversarial judicial proceedings between the state and the defendant begin by way of indictment, information, arraignment or preliminary hearing. Kirby v. Illinois, 406 U.S. 682 (1972). Once the right attaches, police may not elicit statements from the accused that incriminate him as to the crime charged. Massaih v. United States, 377 U.S. 201 (1964). Because Clark's uncounseled post-arraignment statements addressed a crime other than the one for which he had been arraigned, his statements were admissible at the trial in this case. The Supreme Court enunciated the following policy reason for this rule in Maine v. Moulton, 474 U.S. 159, 180 n. 16 (1985). To exclude evidence pertaining to charges to which the Sixth Amendment right to counsel has not yet attached simply because other charges are pending, would unnecessarily frustrate time public's interest in the investigation and prosecution of criminal activities. Id.
The decision of the Supreme Court of Ohio reflects the only determination of the facts in light of the evidence presented, and a reasonable application of clearly established federal law as determined by the Supreme Court of the United States.
Clark also argues that his waiver of his Sixth Amendment right to counsel was involuntary. Indulging Clark's contention that the Sixth Amendment right to counsel had attached with respect to the Manning murder, the Ohio Supreme Court set out to determine whether his waiver of Miranda rights was effective and/or whether his confession was voluntary, employing the totality of the circumstances tests espoused in Fare v. Michael C., 442 U.S. 707 (1979) and State v. Edwards, 49 Ohio St.2d 31 (1976). The Ohio Supreme Court concluded that the totality of the circumstances showed that Clark's waiver and confession were voluntary. Citing Colorado v. Connelly, 479 U.S. 157 (1986), the court stated that police overreaching and/or coercion was a prerequisite to a finding of involuntariness, and that there was no evidence that Clark was subjected to physical abuse, threats, deprivation of food, medical treatment or sleep. Furthermore, Clark waived his Miranda rights five times before confessing his guilt, acknowledged that he understood his rights, and signed a written waiver of those rights. Finally, at the suppression hearing, a neurologist who treated Clark testified that, from a medical-neurological standpoint, Clark was capable of voluntarily waiving his rights.
The Court finds that the Ohio Supreme Court's ruling constituted a reasonable determination of the facts in light of the evidence presented and that its conclusion resulted in a decision that reasonably applied controlling Supreme Court precedent. Clark has shown nothing to undermine that determination either factually or legally.
C. Claim Nine — Death Qualification of Donna Litrell
The ninth claim for relief contends that Clark was denied a fair and impartial trial because a potential juror, Donna Littrell, was excused based on her views regarding the death penalty. Specifically, Clark contends:
Despite Donna Latrell's (sic) statement that she would follow the law as to the death penalty, she was excused because of her views with respect to the death penalty. Mere opposition to the death penalty is not sufficient to disqualify an individual from sitting on a jury in a capital case.Traverse at 50. None of the state courts that addressed the issue of death specifically addressed on the merits the exclusion of Donna Littrell.
In Witherspoon v. Illinois, 391 U.S. 510 (1968), the United States Supreme Court held that the State infringes a capital defendant's rights under the Sixth and Fourteenth Amendments to trial by an impartial jury when it excuses for cause all those members of the venire who express conscientious objections to capital punishment. Witherspoon involved the capital sentencing procedures for the State of Illinois. of particular note was an Illinois statute providing that a juror may be challenged for cause if he expressed conscientious scruples for or against capital punishment. Based on this standard, half the jury panel at Witherspoon's trial were excluded for cause. The Supreme Court reversed Witherspoon's conviction, concluding that "a sentence of death cannot be carried out if the jury that imposed or recommended it was chosen by excluding veniremen for cause simply because they voiced general objections to the death penalty or expressed conscientious or religious scruples against its infliction. Id. at 522.
Following Witherspoon, numerous courts focused on language in footnote 21 of the opinion to set an overly-rigorous standard for judging the proper exclusion of a juror opposed to capital punishment. Based on the footnote, later courts held that a prospective juror may be excluded for his opposition to the death penalty only if it was unmistakably clear that he would automatically vote against the death penalty. See, e.g., State v. Anderson, 30 Ohio St.2d 66, 70 (1972), Hackathorn v. Decker, 438 F.2d 1363, 1366 (5th Cir. 1971); State v. Celestine, 443 So.2d 1091 (La. 1983); David v. Zant, 721 F.2d 1478, 1482 (11th Cir. 1983).
The relevant portion of the footnote stated:
We repeat, however, that nothing we say today bears upon the power of a State to execute a defendant sentenced to death by a jury from which the only veniremen who were in fact excluded for cause were those who made unmistakably clear (1) that they would automatically vote against the imposition of capital punishment without regard to any evidence that might be developed at the trial of the case before them, or (2) that their attitude toward the death penalty would prevent them from making an impartial decision as to the defendant's guilt.391 U.S. at 522 n. 21.
Subsequent United States Supreme Court decisions made it clear, however, that Witherspoon was a fact-driven case that did not constitute a ground for disqualifying jurors but was only a limitation on the State's power to exclude them. In Adams v. Texas, 448 U.S. 38 (1980), for example, the United States Supreme Court held that the proper standard for determining when a prospective juror may be excluded for cause based on his views on capital punishment is whether the juror's views would "prevent or substantially impair the performance of his duties as a juror in accordance with his instructions and his oath." Id. at 45. The Court noted that the State may, as always, lawfully insist that jurors consider and decide the facts impartially and conscientiously apply the law as charged by the Court. Id.
In Wainwright v. Witt, 469 U.S. 412 (1985), the Supreme Court again addressed Witherspoon's "limited holding." Id. at 419. The Wainwright Court held that the Adams standard is the proper standard for determining when a prospective juror may be excluded for cause based on its views regarding the death penalty, noting that Adams was "in accord with traditional reasons for excluding jurors." Id. at 421. The Court also held that a trial court's determination that a prospective capital juror is properly excluded for cause is a factual determination entitled to a presumption of correctness on habeas review. Id. at 431.
The Court also stated, in obvious reference to Witherspoon, that "more recent opinions of this Court demonstrate no ritualistic adherence to a requirement that a prospective juror make it `unmistakably clear . . . that [she] would automatically vote against the imposition of capital punishment. . . ." 469 U.S. at 419.
Then as now, the standard for determining whether a juror may be excluded for cause based on its views regarding the death penalty is whether the juror's views would prevent or substantially impair the performance of its duties as a juror in accordance with the judge's instructions and the juror's oath. In this case, the trial judge and counsel conducted an extensive inquiry to determine whether or not Littrell could carry out her duties fairly and impartially:
THE COURT: Now, under the law, your conscientious or religious feelings about the death penalty are not in and of themselves cause for removing you from the jury unless you state unequivocally that under no circumstances will you follow the instructions of the Court and fairly consider the imposition of the sentence of death. Do you feel that you would be able to follow this Court's instructions and fully consider the death penalty if called upon to do so in this case?
DONNA LITTRELL: I don't think I could.
THE COURT: Do you have such a mental state and personal judgment that you could not follow the Court's instructions regardless of how the case was —
DONNA LITTRELL: I wrote a letter before, trying to explain how — my feelings.
THE COURT: I didn't get that.
DONNA LITTRELL: No, she sent it back to me.
THE COURT: Because that is a function of this particular —
DONNA LITTRELL: I have the type of mind that whatever I do, I don't turn it off like a lot of people, it stays with me and it follows me day in and day out, and I can't — I'm 62 years old and have had this problem all my life. I don't know if that makes good sense, but some people can close things off at the end of the day; they don't turn off with me.
THE COURT: Mr. Bates, would you care to ask any questions?
BY MR. BATES:
Q. Are you responding to the Judge's question that either your personal belief or religious belief concerning the death penalty would interfere with your ability to fairly listen to the facts and apply the instructions of the Court, and if the Judge's instructions required you to recommend the death penalty, you could not do so because of your personal beliefs?
A. I don't think I could. I don't know if I could do it and get over it or not.
Q. Okay. So you think your personal feelings concerning this issue would interfere with your ability to listen to the Judge's instructions and totally follow those instructions which you would be required to do?
A. Not if I was told that I had to say that the person has to be sentenced to death.
Q. The Judge isn't going to tell you, the Judge isn't going to say I order you to recommend the death penalty. He is going to give you some guidelines to follow in your evaluation of whether your recommendation should be the death penalty or one of two life imprisonment sentences which are available.
However, if the facts and those instructions were to indicate to you that the death penalty is an appropriate penalty in this particular case under this particular fact situation, will you be able to follow those instructions and say, you know, you will be one of twelve jurors to say to the other jurors yes, in my opinion, the death penalty is appropriate in this partiuclar (sic) case?
A. I don't know how I could handle it.
Q. Do you think youer (sic) personal beliefs will interefere (sic) with your ability to fairly listen to the law?
A. I could listen to anything, but what I am afraid of is that I will not be able to handle this after it's over with with (sic) my own personal feelings. It's not like I'm going home and forgetting it. I'm still going to be living it, whichever.
Q. Now, do you think that knowing that and having that in your mind that you would automatically vote against the death penalty being imposed because it's something that you —
A. I'm afraid I wouldn't go either way. What happens then?
Q. You don't think you could make a decision either way concerning that particular subject?
A. Not with — I don't know. I have never had to make this kind of a decision, so I'm trying to be truthful.
THE COURT: We appreciate that.
DONNA LITTRELL: I just cannot tell you how I —
THE COURT: Let's go to Mr. VanHorn and Mr. Douglas for a moment.
* * *
BY MR. VanHORN:
Q. Your first several responses were due to your own feelings in the opposition to the death penalty, you feel you could or believe you couldn't return a verdict if you were called upon in the proper case, is that correct?
A. I mean, what happens if I felt someone is guilty and yet I can't say I wanted a death sentence and I don't know which way I will want to go, so I don't go either way. Wouldn't that be a problem?
Q. The question is whether your indication was that you didn't think or you didn't believe that you could follow your convictions, what I interpreted your answer to be, even though perhaps your logic was telling you perhaps that the death penalty was called for, you had a question of whether or not your personal beliefs would permit you to do what logic indicated that you could do or should do?
A. That's what I'm afraid of that I would have this on my conscience the rest of my life and I wouldn't be able to handle it.
MR. VanHORN: We have nothing further.
THE COURT: Mr. Bates, anything further?
MR. BATES: No, Your Honor.
THE COURT: Excused. I don't see how she could sit with the Witherspoon situation being as it is.
Mr. VanHORN: We would have to note our objection to it for the record.
Vol. VII at 139-144.
The trial judge's decision to exclude Littrell, which is entitled to this Court's deference, is supported by the record. Littrell made it clear to all that, while she could "listen to anything" the judge would say (i.e., the instructions), her personal beliefs combined with her anticipated emotional fallout would make it impossible for her to impose a sentence of death on Clark. Her responses are not unlike those found a proper basis for excluding a juror in Wainwright. See id. at 432 n. 12. Accordingly, the Court rejects this claim. D. Claim Eleven — Inoperable Firearm
In his direct appeal, Clark asserted:
The United States Court of Appeals for the Eighth Circuit has ruled that the systematic exclusion of jurors who harbor strong feelings of opposition to the death penalty deprives the defendant of the constitutionally guaranteed right to a jury drawn from a representative cross-section of the public. Grigsby v. Mabry, 758 F.2d 226 (CA8 1985).
Vol. XIX at 735. Noting that Grigsby had been appealed and that a decision was pending, Clark reserved the right to supplement his argument upon release of the decision. In Grigsby v. Mabry, the Eighth Circuit affirmed a district court ruling setting aside a conviction of a criminal defendant in a habeas case based upon social studies opining that "death qualification" produced juries that were more prone to convict capital defendants than non-death qualified juries. The United States Supreme Court reversed this decision in Lockhart v. McCree, 476 U.S. 162 (1986), noting both that death-qualification of juries alone does not violate the Constitution, and that the "fair cross-section" principle had never been invoked by the Supreme Court to invalidate the use of for-cause challenges to prospective jurors to reflect the community at large.
Clark contends that his conviction and sentence are void or voidable because the firearm in question was rendered inoperable by State agents prior to Clark having an opportunity to have the gun scientifically tested. Specifically, Clark contends:
Firearm test results conducted by the Sate (sic) were allowed in evidence and relied upon by the jury in its finding of guilty and sentence to death. The firearm was rendered inoperable by agents of the State prior to CLARK having an opportunity to have the firearm scientifically tested. However, now Respondent asserts, without evidence but only conjecture, that CLARK's expert damaged the weapon. It had been established on record that the gun was test-fired by the State and rendered inoperable when CLARK requested testing.
The purpose served for an expert examination at that stage of the trial is simply CLARK's right. The State must prove each and every element beyond a reasonable doubt, and if proof that the gun was not operable, then that lack of evidence is impugned to CLARK's favor.
In U.S. v. Valenzuela-Bernal, 458 U.S. 858 (1982), the Supreme Court held that not presenting testimony that would be "material and favorable" to the defense constitutes a violation of the Compulsory Process Clause of the Sixth Amendment and the Due Process Clause of the Fifth Amendment. The value of expert examination or the inadmissibility of the firearm by virtue of the inability to have it tested is significant regardless. The operability issue is valuable and to disqualify its effect is prejudicial.Traverse at 52 (emphasis added). Clark asserts now, as he did before the Supreme Court of Ohio, that United States v. Valenzuela-Bernal, 458 U.S. 858 (1982) dictates this result.
The United States Supreme Court has long held that the constitutional right to present a meaningful defense includes access to evidence that is material to guilt or punishment. Brady v. Maryland, 373 U.S. 83, 87 (1963). In United States v. Valenzuela-Bernal, 458 U.S. 858 (1982), the Supreme Court held that a defendant's Fifth and Sixth Amendment rights were not violated where the federal government deported all but one of five illegal aliens that the defendant was charged with illegally transporting into the United States. The defendant desired to call the aliens as witnesses, claiming they were necessary to his defense. The Court held that, before the government could be burdened with maintaining the aliens in this country as material witnesses, the defendant was required to make a sufficient showing that they could provide evidence that would be "both material and favorable to the defense." Id. 458 U.S. at 873. The Court concluded that the defendant failed to make this showing.
Brady involved a case wherein Brady and a companion were found guilty of capital murder in the commission of a robbery and were sentenced to death. Brady admitted at trial that he participated in the robbery, but maintained that his companion committed the murder. Prior to trial, Brady's counsel had requested permission to examine the extrajudicial statements of Brady's companion. The prosecution withheld a statement in which the companion admitted to the homicide. The Supreme Court held that the withholding of exculpatory evidence by the government upon request violated due process where the evidence was material to guilt or punishment irrespective of the good or bad faith of the prosecution.
Subsequent to Valenzuela-Bernal and prior to Clark's conviction, the Supreme Court addressed the extent to which due process imposes upon the government the duty to take affirmative steps to preserve evidence on behalf of criminal defendants. In California v. Trombetta, 467 U.S. 479 (1984), defendants who had been arrested for driving under the influence of alcohol claimed that their right to analyze physical evidence was violated when the State destroyed breath samples taken at the time of the arrests. The Court disagreed, pointing out that the officers who destroyed the evidence "were acting in good faith and in accord with their normal practices." Id. at 488 (quoting Killian v. United States, 368 U.S. 231, 242 (1961)). The Court emphasized that the record contained no allegations of official animus toward the respondents or of a conscious effort to suppress exculpatory evidence. Id. at 488. Aside from the absence of bad faith, the Court also found that the nature of the evidence did not require preservation of the breath samples. Specifically, the Court said:
Whatever duty the Constitution imposes on the States to preserve evidence, that duty must be limited to evidence that might be expected to play a significant role in the suspect's defense. To meet this standard of materiality, . . . evidence must both possess an exculpatory value that was apparent before the evidence was destroyed, and be of such a nature that the defendant would be unable to obtain comparable evidence by other reasonably available means.467 U.S. at 488-89 (citing United States v. Agurs, 427 U.S. 97, 109-110 (1976)).
The Ohio Supreme Court reviewed this issue on direct appeal and, after citing Valenzuela-Bernal, concluded that the unavailability of the firearm for test-firing by Clark's experts did not warrant a reversal of his conviction. The court explained that there was no evidence of bad faith on the part of the state in test-firing the gun. Moreover, the trial court did not abuse its discretion in admitting the gun and the government's test results over Clark's objections because Clark was able to examine the gun and he had access to the tests.
The Court finds that the decision of the Ohio Supreme Court reflects a reasonable application of clearly established federal law as determined by the Supreme Court of the United States at the time of Clark's conviction. Clark did not allege or present any evidence of bad faith on the part of the State in test-firing the gun. Nor has he suggested that the government withheld exculpatory evidence. Rather, he relies on the singular position that it was his constitutional right to have access to an operable gun and an opportunity to have an independent expert examine that gun. This position is manifestly inadequate under Brady, Valenzuela-Bernal and Trompetta.
Subsequent case law bears this out. See Arizona v. Youngblood, 488 U.S. 51, (1988) (no obligation to preserve evidence that has only a potentially exculpatory value absent bad faith); United States v. Jobson, 102 F.3d 214, 218 (6th Cir. 1996) (gross negligence in failing to preserve a tape with potentially exculpatory value absent a showing of bad faith does not violate due process); United States v. Hernandez, 109 F.3d 1450, 1455 (9th Cir. 1997) (per curiam) (no violation when government destroyed gun under routine procedures); United States v. Brown, 9 F.3d 907, 910 (11th Cir. 1993) (per curiam), cert. denied, 513 U.S. 852 (1994) (no violation when government negligently destroyed revolver).
Additionally, no prejudice has been shown. The defense theory was that Clark shot Manning in order to wound, but not kill, him. Indeed, Clark admitted in his statement to police that the weapon in question was the same weapon he had at the store. Because there was no dispute as to whether Clark shot Manning, and because Clark admitted that the gun in question was the gun he employed, the necessity of independent examination of the firearm was de minimus. Further expert testimony would have served no purpose.
The trial court's refusal to suppress the gun and the test results did not violate Clark's constitutional rights, and the appeals court's ruling was a reasonable application of federal law. Thus, this claim is dismissed.
E. Claim Fourteen
(1) Jury Recommendation of Death
Clark contends that his conviction and sentence are void or voidable because it was error for the jury to be advised that its decision as to the death sentence was merely a recommendation. He has consistently argued that Caldwell v. Mississippi, 472 U.S. 320 (1985) dictates this result.
In addressing this issue, the Ohio Supreme Court rejected Clark's claim holding that, under the Ohio capital statute, O.R.C. § 2929.03(D)(2), the judge and the prosecutor correctly referred to the jury's decision as a recommendation. In so holding, it reaffirmed its prior refusal to extend Caldwell "so as to forbid telling juries that they can only recommend the death sentence and not impose it." 38 Ohio St.3d at 259 (citing State v. Buell, 22 Ohio St.3d 124, 142-44 (1986)).
Under Ohio law, the jury must recommend a death sentence if it unanimously concludes beyond a reasonable doubt that the aggravating circumstances the offender was found guilty of committing outweigh the mitigating factors presented to the jury. O.R.C. § 2929.03(D)(2). If the jury so finds, the sentence of death must be imposed only if the trial judge independently reaches the same conclusion. O.R.C. § 2929.03(D)(3). If, however, the jury does not unanimously reach the aforementioned conclusion, it must recommend a life sentence with parole eligibility — a decision that is binding upon the trial judge. O.R.C. § 2929.03(D)(2).
Caldwell, upon which Clark relies, is distinguishable from the instant case. In Caldwell, the prosecutor misled the jury into believing that it did not hold responsibility for its decision regarding the death sentence because its decision would be immediately reviewable by the Mississippi Supreme Court. The United States Supreme Court concluded that Caldwell's death sentence was unconstitutional because it was "constitutionally impermissible to rest a death sentence on a determination made by a sentencer who has been led to believe that the responsibility for determining the appropriateness of the defendant's death rests elsewhere." 472 U.S. at 328-29. The Supreme Court later explained, "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." Dugger v. Adams, 489 U.S. 401, 407 (1989)). In other words, Caldwell applies only to cases wherein the jury has been misled "as to its role in the sentencing process in a way that allows the jury to feel less responsible than it should for the sentencing decision." Darden v. Wainwright, 477 U.S. 168, 184, n. 15 (1986).
Specifically, the prosecutor in Caldwell exhorted the jury "not to view itself as determining whether the defendant would die, because a death sentence would be reviewed for correctness by the State Supreme Court." 472 U.S. at 323.
In the case at bar, comments and instructions explaining that the jury's sentencing decision was a recommendation were a correct statement of Ohio law. See, e.g., Mapes v. Coyle, 171 F.3d 408, 414-15 (6th Cir. 1999); Scott v. Mitchell, 209 F.3d 854, 877 (6th Cir. 2000). Thus, the Court finds that the Ohio Supreme Court's refusal to extend Caldwell to the instant case was a reasonable application of clearly established federal law as determined by the Supreme Court of the United States.
(2) Prior Convictions
Clark also contends that his conviction should be reversed on the basis that the trial court erroneously permitted the State to cross-examine and introduce evidence of Clark's prior convictions when he went forward with testimony concerning his character.
The Ohio Supreme Court addressed and rejected this claim. Specifically, the Supreme Court stated:
In our view, if the appellant in fact carries his burden of going forward with evidence of mitigating factors, he opens the door for the state to introduce rebuttal evidence. In the instant cause, while appellant did not attempt to prove the lack of a significant prior criminal record, he did introduce evidence of his history, character and background through the testimony of his mother and Dr. Hy P. Kisin. . . . The testimony of appellant's mother and daughter, Cheryl Stallworth, portrayed appellant as a good father and a quiet, Bible-reading man who lived with his mother. Dr. Kisin's testimony tended to portray appellant as a person with a potential for rehabilitation, and suggested that if appellant were ever released from prison, he would not be dangerous.
We believe that the evidence proffered by appellant in mitigation was in fact evidence of his history, character and background. The evidence submitted by the state in rebuttal was relevant to impeach, for example, Dr. Kisin's opinion of appellant's potential for rehabilitation. The prior criminal record of appellant was relevant to rebut the portrayal of appellant as a quiet, religious man and good father. Likewise, the rebuttal evidence of appellant's prior criminal record was relevant in this context because it completed an otherwise incomplete account of appellant's history and background. Since appellant essentially raised the issue of his history, character and background, he "opened the door" to all evidence relevant thereto. See Evid.R. 405(B). Since such evidence was offered in order to refute appellant's mitigation evidence, we hold that the introduction of appellant's prior criminal record here was relevant and admissible for this purpose.38 Ohio St.3d at 254-55.
"Errors in the application of state law, particularly with regard to the admissibility of evidence, are usually not cognizable in a federal habeas proceeding, unless the admission or the exclusion of evidence constitutes a denial of fundamental fairness or a fundamental constitutional guarantee." Fuson v. Jago, 773 F.2d 55 (6th Cir. 1985), cert. denied, Seiter v. Fuson 478 U.S. 1020 (1986); Walker v. Engle, 703 F.2d 959 (6th Cir. 1983). See also Little v. Johnson, 162 F.3d 855, 862 (5th Cir. 1998), cert. denied, 526 U.S. 1118 (1999). Other than expressing this issue as one among numerous other issues, Clark offers absolutely no argument on his behalf. The Court has reviewed the mitigation phase transcript and cannot find a constitutional violation. The transcript reveals considerable discussion between the court and counsel on this issue, see, e.g., Vol. XVI at 110-137 (cross examination of Dr. Hy Kisin), and counsel ultimately stipulated to Clark's prior criminal record.
Because Clark has failed to articulate or show how the Ohio Supreme Court's decision resulted in an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States, the claim must be denied.
F. Claim Fifteen — Disproportionate Sentence
Clark contends that his conviction and sentence are void or voidable because the death sentence in this case is disproportionate to the life sentence imposed in Clark's separate trial for another murder charged in Count I of the indictment. The Ohio appellate courts conducted a proportionality review of Clark's death sentence as required under O.R.C. § 2929.05(A). See 1986 WL 15254 at *10, 38 Ohio St.3d 252 at 264-65. Both courts concluded that Clark's death sentence was not disproportionate to death sentences imposed in other similar cases. On postconviction review, Clark contended that the state courts failed to conduct a "meaningful" proportionality review. The trial and appellate courts denied this claim on procedural grounds.
Clark argues that the death sentence is disproportionate to the life sentence he received in his other murder trial because the two cases are indistinguishable. There are several problems with Clark's argument. First, a state is not constitutionally required to conduct a proportionality review of a capital defendant's death sentence. Pulley v. Harris, 465 U.S. 37, 50-51 (1984). Rather, a proportionality review is merely an additional safeguard against arbitrarily-imposed death sentences. Id. At 50.
Second, the Supreme Court of Ohio has long held that the statutory requirement that appellate courts consider whether a death sentence is excessive or disproportionate to the penalty imposed in "similar cases" means other cases in which death sentences have been imposed. State v. Steffen, 31 Ohio St.3d 111 (1987), syllabus ¶ 1. See also id. at 123 (since proportionality review is not constitutionally mandated, the court is "relatively free, within the confines of the statute, to determine the pool of cases to be used for comparison"); State v. Green, 66 Ohio St.3d 141, 151 (1993) (death sentence of one defendant cannot be compared to life sentence of co-defendant indicted on capital offense). Thus, comparison of the death sentence in the Manning murder to the life sentence he received in a separate criminal case would have been improper.
The Ohio Supreme Court properly compared Clark's death sentence to other capital cases and found that it was neither proportionate nor excessive, particularly pointing to State v. Mapes, 19 Ohio St.3d 108 (1985) and State v. Martin, 19 Ohio St.3d 122 (1985) — two cases the Court found significant in that both were robbery-murder cases without significant mitigation evidence.
Clark alleges no legal basis for his claim that the state courts' proportionality review was not constitutionally "meaningful" — other than his conclusion that the Lawson's murder was more heinous than the Manning murder. This allegation is demeaning and ludicrous, and says absolutely nothing about the propriety of the state court's review of the death sentence in this case or about relevant federal law. A review of the state courts' proportionality reviews shows that the court's conclusions were well-reasoned and based on appropriate cases.
The Court finds that Clark has failed to establish that the Ohio Supreme Court's conclusion that Clark's death sentence was not disproportionate to other similar crimes, as defined by state law, involved an unreasonable application of clearly established federal law. Thus, the claim is denied.
G. Claim Eighteen — Lessor Included Offense
Clark contends that his conviction and sentence are void or voidable because of the trial court's failure to instruct the jury on the lesser included offense of involuntary manslaughter. In the Traverse, Clark combines this issue with the seventeenth claim for relief, i.e., that his conviction should be overturned because the jury did not expressly find, via interrogatory or verdict, that he had the specific intent to murder David Manning. The Court has already addressed the seventeenth claim and found, supra at 97, that Clark procedurally defaulted it and that the claim had no legal basis in any event.
The Ohio Supreme Court rejected the eighteenth lesser-included offense claim on direct appeal, stating that a lesser included offense instruction is warranted
only if, under the facts of the case, the trier of fact could reasonably find against the state and for the accused upon one or more elements of the crime charged, and for the state and against the accused on the remaining elements, which by themselves would sustain a conviction upon a lesser included offense.38 Ohio St.3d at 255 (citing State v. Wilkins, 64 Ohio St.2d 382 (1980) and State v. Kidder, 32 Ohio St.3d 279 (1987). The Ohio Supreme Court noted that involuntary manslaughter may, if the facts warrant, be a lesser included offense of murder, and that the relevant inquiry in determining whether the trial court was correct in not giving the instruction on involuntary manslaughter was the element of purpose. Id.
Aggravated murder is defined as "purposely caus[ing] the death of another while committing . . . aggravated robbery . . ." O.R.C. § 2903.01(B). Involuntary manslaughter is defined as "caus[ing] the death of another as a proximate result of the offender's committing or attempting to commit a felony." O.R.C. § 2902.04(A).
Clark argued before the Ohio Supreme Court that Manning tried to force his way on Clark and that a reasonable jury could have concluded that Clark pulled the trigger accidentally or that he fired to wound or scare Manning. However, the Ohio court reviewed the trial testimony and determined that the evidence showed that Clark and Manning were on different sides of the service counter when Clark shot Manning, that the trajectory of the bullet hole showed that Clark did not intent to wound or frighten Manning, that Clark employed a deadly weapon to accomplish the robbery, and that there was no evidence to support the lesser included offense instruction, i.e., that the shooting of Manning was an unintentional shooting brought about by surprise, as Clark had theorized.
Clark does not explain how this well-reasoned ruling resulted in an unreasonable application of clearly established federal law as determined by the Supreme Court of the United States. Accordingly, the claim must be denied.
V. CONCLUSION
For the reasons set forth above, the Court concludes that Clark failed to demonstrate the right to a writ of habeas corpus. Accordingly, the Petition for Writ of Habeas Corpus is DENIED.
Having addressed the merits of the Petition, the Court must determine whether to issue a certificate of appealability. Title 28 U.S.C. § 2253(c)(1) provides, "[u]nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the Court of Appeals from — (A) the final order in a habeas corpus proceeding in which the detention complained of arises out of process issued by a State court. . . ." 28 U.S.C. § 2253(c)(1)(A). The statute does not distinguish between capital cases and non-capital cases.
Rule 22(b) of the Federal Rules of Appellate Procedure provides, "[i]f an applicant files a notice of appeal, the district judge who rendered the judgment shall either issue a certificate of appealability or state the reasons why such a certificate should not issue." Fed.R.App.P. 22 (1998). Pursuant to 28 U.S.C. § 2253(c)(2), [a] certificate of appealability may issue . . . only if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2) (1998). The Sixth Circuit has held that district judges may issue certificates of appealability under the AEDPA. Lyons v. Ohio Adult Parole Authority, 105 F.3d 1063 (6th Cir.), cert. denied, 520 U.S. 1224 (1997).
Although an implied overruling of Lyons was recognized in Arredondo v. United States, 120 F.3d 639 (1997), the Sixth Circuit determined that Lindh had no effect on the conclusion that district judges have the authority to issue certificates of appealability.
In Barefoot v. Estelle, 463 U.S. 880, 893 n. 4 (1983), the Supreme Court determined:
In requiring a `question of some substance', or a `substantial showing of the denial of [a] federal right', obviously the petitioner need not show that he should prevail on the merits. He has already failed in that endeavor. Rather, he must demonstrate that time issues are debatable among jurists of reason; that a court could resolve the issues [in a different manner]; or that the questions are adequate to deserve encouragement to proceed further. Gordon v. Willis, 516 F. Supp. 911, 913 (N.D. Ga. 1980) (quoting United States ex rel. Jones v. Richmond, 245 F.2d 234 (2d. Cir. 1957), cert. denied, 355 U.S. 846 (1957)) (internal quotations omitted).
Although the Barefoot court applied this standard to certificates of probable cause, the criteria is equally applicable to certificates of appealability. Slack v. McDaniel, 529 U.S. 473 (2000).
With regard to a certificate of probable cause, a petitioner must make a substantial showing of the denial of a federal right, and with a certificate of appealability, a petitioner must make a substantial showing of the denial of a constitutional right.
While it is proper to consider the nature of the penalty in determining whether to issue a certificate of appealability, the severity of the penalty does not automatically warrant the issuance of a certificate. Barefoot, 463 U.S. at 893. Courts have upheld this notion by repeatedly denying certificates of probable cause in habeas corpus death penalty cases. See Anderson v. Kentucky, 288 F.2d 333 (6th Cir. 1981); Derrick v. Collins, 497 U.S. 1042 (1990); Jones v. Smith, 475 U.S. 1076 (1986); Andrade v. McCotter, 479 U.S. 1013 (1986).
In determining whether a certificate of appealability should issue, the Court must consider the multiple state court reviews of a petitioner's conviction and sentence. Pursuant to its statutory duty under O.R.C. § 2929.03(F), the trial court issued a separate opinion setting forth its specific findings as to the existence of mitigating factors, the aggravating circumstances Clark was found guilty of committing, and the reasons why the aggravating circumstances were sufficient to outweigh the mitigating factors beyond a reasonable doubt. This conclusion confirmed the jury's unanimous recommendation.
Both the Court of Appeals and the Supreme Court of Ohio reviewed the judgment in the case and the death sentence imposed by the trial court. As required under O.R.C. § 2929.05(A), both appellate courts reviewed and independently weighed all of the facts and other evidence disclosed in the record and determined that the aggravating circumstances Clark was found guilty of committing outweighed the mitigating factors beyond a reasonable doubt. Each court determined the death sentence was appropriate. The Supreme Court of Ohio also determined that the sentence was not excessive or disproportionate to the penalty imposed in similar cases. In each review, it was determined that there was no merit to Clark's claims that he was denied a fair trial.
Like the state courts, this Court has reviewed the entire record in this case and all claims, defaulted or not, raised in the Clark's Petition. As evidenced by the exhaustive nature of this opinion, the Court has taken seriously its duty to determine whether Clark was given a fair trial within the meaning of the United States Constitution, and concludes that he was. Clark has failed to demonstrate that reasonable jurists would find the Court's assessment of his constitutional claims debatable or wrong. Slack, 529 U.S. at 484.
Importantly, Clark has never denied killing David Manning. The irrefutable facts of this case are: Clark went to a service station on January 13, 1984, armed with a loaded revolver, with the sole intention of robbing the station. In the commission of the aggravated robbery, he shot and killed David Manning.
Accordingly, the Court shall, by separate order, certify that an appeal from this decision could not be taken in good faith and that there is no basis upon which to issue a certificate of appealability.
IT IS SO ORDERED.
JUDGMENT ENTRY
For the reasons stated in the Memorandum of Opinion and Order filed contemporaneously with this Judgment Entry, and pursuant to Federal Rule of Civil Procedure 58, it is hereby ORDERED, ADJUDGED AND DECREED that the above-captioned case is hereby terminated and dismissed as final.
Pursuant to 28 U.S.C. § 2253(c) and Fed.R.App.P. 22(b), the Court concludes that there is no basis upon which to issue a certificate of appealability. However, because this is a capital case, the Court believes that the Sixth Circuit should review either the district court's conclusion regarding appealability, or the non-procedurally defaulted issues raised in the habeas petition.
The Court certifies pursuant to 28 U.S.C. § 1915(a)(3) that an appeal from this decision could not be taken in good faith.
IT IS SO ORDERED.