State v. Twyford

Lundberg Stratton, J.,

concurring in part and dissenting in part. I concur in the portion of the majority opinion affirming Twyford’s convictions, but for the reasons that follow, I respectfully dissent from the analysis of Part XII of the opinion regarding ineffective assistance of counsel, and I would remand the cause to the trial court for a new sentencing hearing.

I concur with the majority in its conclusion that there was overwhelming evidence of Twyford’s guilt. Twyford made a voluntary, knowing, and detailed confession of his crimes, both orally and in writing. There was a myriad of forensic evidence supporting Twyford’s convictions, including information that he gave police that led to the discovery of the victim’s hands and the retrieval of two guns and two knives from the home in which Twyford resided. Moreover, at trial, Twyford did not dispute that he had committed the murders. In fact, at trial, defense counsel conceded that Twyford did not contest many of the facts and that Twyford and an accomplice had “killed Richard Franks.”

*369 However, rather than having killed Franks in cold blood, Twyford claimed that he killed Franks because he believed that Franks had raped Twyford’s girlfriend’s daughter, Christina. Yet, in cross-examining Sheriff Abdalla, defense counsel elicited evidence about Twyford’s alleged sexual misconduct with his girlfriend’s two daughters, Christina, age eighteen, and Terri, age thirteen. In cross-examining Sheriff Abdalla, defense counsel apparently had sought to advance the theory that Twyford killed Franks because Franks had raped Christina. But as the majority points out, counsel used poor judgment in using open-ended questions while cross-examining Sheriff Abdalla, and, in doing so, elicited evidence about Twyford’s alleged sexual misconduct involving the two girls.

Below is a portion of the transcript reflecting the cross-examination of Sheriff Abdalla. Counsel was inquiring as to why the children’s mother, Twyford’s girlfriend Joyce, did not look for the younger child, Terri, when she was absent from school:

“Q. Why didn’t Joyce go look for her? Do you have any idea?

“A: To be honest with you?

“Q: Uh-huh.

“A: I don’t think she could care less about her children.

“Q: Why would you say that?

“A: Why?

“Q: Yes.

“A: Because she was aware that Mr. Twyford was having sex with her eighteen year old and her thirteen year old and did nothing.

“Q: Now just a minute. Let’s explore that a minute. How did you know she was aware of that?

“A: Cause she advised me of that.”

Even after eliciting this damning information about his own client, counsel persisted in cross-examining with more open-ended questions.

“Q: Okay. Anything else about Joyce that indicated to you she was less than a good mother?

“A: Sure. Number one, as I stated, that I don’t think that she provided the— the medical treatment or mental treatment for her daughter that she should. I’m standing in a house and her thirteen year old daughter’s got a large sucker bite over here that Mr. Twyford put on the child.

“Q: Now, how do you know that?

“A: Cause she told me.

*370 “Q: Who did?

“A: The child.

“Q: Now did the child indicate anything else to you?

“A: Sure.

“Q: And what did she tell you?

“A: That Raymond Twyford took her to bed.

“Q: Now wait. Which child is this now?

“A: I’m talking about the thirteen year old. When I started to talk to the thirteen year old about Raymond’s sexual advances on that child, the child started to open up. Okay. She started telling me what he was doing with her.

“Q: Did you ask Christina if she had been raped?

“A: Yes.

“Q: Do you think she understands what the word raped means?

“A: I think if you sit down and try to explain it to her, she might understand it. She had sex with the victim. She had sex with this suspect.

“Q: Now, wait a minute. How do you know that?

“A: She told me.”

In response to this testimony from the guilt phase, as the majority notes, the state claimed that Twyford had acted more from jealousy than revenge because he had been sexually active with both daughters. The majority notes that counsel’s continued cross-examination elicited serious uncharged misconduct about Twyford’s sexual activity with his girlfriend’s children, all in the form of hearsay that is inadmissible under the Rules of Evidence. The majority finds that this testimony undermined the defense theory that Twyford had killed Franks in order to punish Franks for raping Christina and to protect Joyce’s children.

In order for a conviction to be reversed on appeal for ineffective assistance of counsel, the defendant must show that (1) counsel’s performance was deficient, and, (2) that the deficient performance prejudiced the defense so as to deprive the defendant of a fair trial. See Strickland v. Washington (1984), 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 .

The majority concludes that counsel’s open-ended cross-examination of Sheriff Abdalla represented deficient performance, thus satisfying the first prong of the Strickland test. However, the majority holds that Twyford failed to establish prejudice because the jury would inevitably have found Twyford guilty as charged. While I agree that there was overwhelming evidence of Twyford’s guilt, *371 I cannot agree with the majority’s conclusion that any deficient performance at the guilt phase did not reasonably affect the penalty, phase.

At the penalty hearing, Twyford presented compelling evidence in mitigation. Twyford testified that his biological father was lost at sea when Twyford was seven years old and he had lived with his mother and stepfather, who frequently drank and beat him. After his mother had a nervous breakdown, he went to live with an aunt and uncle for three or four months. The uncle introduced him to alcohol and marijuana, which he began using at the age of nine. Twyford ran away whenever he was sent back to his mother and stepfather. At the age of thirteen, Twyford intentionally shot himself in the head and lost his right eye. After his attempted suicide, the beatings by his stepfather resumed.

Twyford was sent to a detention center for six months when he was fourteen but again was returned to the home of his mother and stepfather, where he was beaten; he ran away again. When he was arrested once more, he was sent to a more secure detention center for eighteen months'. He has spent considerable time in both juvenile and adult detention facilities and has had a lifelong substance abuse problem. While in juvenile detention and prison, Twyford attempted suicide several times.

Most compelling and most relevant to the case, Twyford testified that he was raped in prison and that prison authorities did nothing to stop it or punish those involved. In the opinion of expert psychologist Dr. Gordon, based on Twyford’s past experiences, Twyford did not trust people and did not have faith in law enforcement authorities. Dr. Gordon testified that Twyford’s early childhood set him up to believe that people do not protect children and that because of his bad experiences with his own mother, his ex-wife, and Joyce, Twyford developed the attitude that he had to protect Joyce’s children. Dr. Gordon testified that Twyford believed that just as the men who had raped him in prison had not been punished, Franks would not be punished for raping Christina.

Twyford testified that he knew that Christina had some mental handicaps and knew that she had been raped in the past and had had a child. Twyford testified that he believed that he. had to be the protector of his girlfriend’s two children. Twyford also testified that he believed that when a woman is raped, it is the woman who goes on trial and not the man. Twyford believed that there was a good chance that Franks would not be punished.

Twyford denied that he was sexually active with the two girls but admitted that he had once playfully given the younger one a sucker bite on her neck in order to teach her a lesson after she had done the same to him. Moreover, Dr. Gordon testified that he believed that law enforcement officers might have unduly influenced or coerced the girls’ statements about Twyford’s reported sexual activity with them.

*372 The majority holds that disclosure of the evidence regarding Twyford’s alleged sexual misconduct was probably inevitable at the penalty phase, given Twyford’s strong reliance on the claim that he had killed Franks because Franks had raped Christina. I disagree. In my view, there is no evidence to support this conclusion. The testimony of the witnesses was blatant hearsay and clearly inadmissible. The prosecution never put the mother, Joyce, or either child on the witness stand. Therefore, there is no way that this evidence could have been properly presented to a jury. In its hearsay form, there was no opportunity to cross-examine the alleged sources of the statements — the mother and the children — and no opportunity to test the credibility of the claims. These allegations dramatically altered the picture presented by the defense and, I believe, seriously impacted how the jury viewed mitigation.

In my view, it is very probable that the evidence confused the jurors and led them to conclude that Twyford was worthy of the worst form of punishment that our system permits: death. It was almost inevitable that this piece of damning evidence would transform the defendant in the jury’s eyes from a frustrated man seeking justice outside a system that had previously failed him to a pedophile who wanted to eliminate his competition.

With all of the evidence of mitigation and without hearing this damning evidence that was permitted due to the deficiencies of Twyford’s counsel, I believe that this jury would have chosen life imprisonment. Accordingly, I would find that Twyford’s counsel’s incompetence prejudiced his defense so as to deprive him of a fair trial. Strickland, 466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 .

For these reasons, therefore, I concur as to the majority’s affirmance of Twyford’s convictions but respectfully dissent from the majority’s decision to uphold the sentence of death. I would instead vacate the sentence of death and remand the cause for rehearing pursuant to R.C. 2929.06(B), which provides for the trial court to impanel a new jury for a new mitigation and sentencing hearing in which this evidence would be excluded.

Moyer, C.J., concurs in the foregoing opinion.