Appendix — Hudson v. Spisak, 128 S. Ct. 373 (2007) (No. 06-1535)

: OW | “« Court US.

(4) Re

061535 AY 16 2007

OFFICE OF THE CLERK

No.

In the Supreme Court of the Anited States

MARC C. HOUK, Warden.

Petitioner,

v.

FRANK G. SPISAK,

Respondent.

ON PETITION FOR WRIT OF CERTIORARI TO :

THE UNITED STATES COURT OF APPEALS ;

FOR THE SIXTH CIRCUIT

APPENDIX

MARC DANN

Attorney General of Ohio

ELISE PORTER*

Acting Solicitor General

*Counsel of Record

ELIZABETH SCAVO

Assistant Solicitor

CHARLES WILLE

Assistant Attorney General

30 East Broad Street, 17th Floor

Columbus, Ohio 43215

614-466-8980

614-466-5087 fax

Counsel for Petitioner

TABLE OF CONTENTS

Page

Appendix A: Opinion, United States Court of

Appeals for the Sixth Circuit, October 20, 2006.................. la

Appendix B: Order Denying Rehearing En Banc,

United States Court of Appeals for the Sixth

COGN WII BO, BUOY cnicésidesiaccssthckesanscnsedaitianindeinesadnsse 64a

Appendix C: Memorandum of Opinion and Order,

United States District Court for the Northern

District of Ohio, Eastern Division, April 18, 2003 ............ 65a

Appendix D: Opinion, Supreme Court of Ohio,

IE iia: ee etncnstassanchinnicscnnsihdasesthnsteiatinipebladeisiatpingmtgtigbstas 242a

Appendix E: Trial Transcript of Jury Sentencing

BU acninisinrsinbsicontstascnlpesiniceianiietaidtapainotainandaaddas tts 252a

Appendix F: Trial Transcript of Defense Closing at

SE picsisecesntnsinucisibsiesiaciicilaginniitinishinsam stabi ciakisiamaeds 268a

Appendix G: Excerpts from Trial Transcript of Witness

Testimony of Officer Harvey Beavers ............:cccecceseseesees 295a

Appendix H: Excerpts from Trial Transcript of

BE TI Ne I ii ticcecssccanises sdscebuicbicbunantoens 303a

la

APPENDIX A

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 206

File Name: 06a0388p.06

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FRANK G. SPISAK, JR.,

Petitioner-Appellant,

v.

BETTY MITCHELL, Warden,

Respondent-Appellee.

No. 03-4034

Appeal from the United States District Court

for the Northern District of Ohio at Cleveland.

No. 95-02675—Solomon Oliver, Jr., District Judge.

Argued: March 14, 2006

Decided and Filed: October 20, 2006

Before: MARTIN, MOORE, and CLAY, Circuit Judges.

COUNSEL

ARGUED: Alan C. Rossman, Cleveland, Ohio, for

Appellant. Carol Ann Ellensohn, ATTORNEY GENERAL’S

OFFICE OF OHIO, CAPITAL CRIMES SECTION,

Columbus, Ohio, for Appellee.

2a

ON BRIEF: Alan C. Rossman, Cleveland, Ohio, Kreig J.

Brusnahan, LAW OFFICES OF KREIG J. BRUSNAHAN,

Avon Lake, Ohio, for Appellant. Carol Ann Ellensohn,

Charles L. Wille, ATTORNEY GENERAL’S OFFICE OF

OHIO, CAPITAL CRIMES SECTION, Columbus, Ohio, for

Appellee.

CLAY, J., delivered the opinion of the court, in which

MARTIN, J., joined. MOORE, J. (pp. 28-30), delivered a

separate opinion concurring in part and dissenting in part.

OPINION

CLAY, Circuit Judge. This appeal is brought by

death-sentenced Ohio prisoner, Frank G. Spisak, Jr., from the

judgment of the district court dismissing Defendant’s

application for a § 2254 writ of habeas corpus. Defendant

challenges his sentence and convictions on the following

grounds: (I) that the trial court improperly struck the

testimony and reports of expert witnesses and refused to

submit Defendant’s insanity defense to the jury; (II) his trial

counsel rendered ineffective assistance during the mitigation

phase of his trial; (III) the unanimity and “acquittal-first” jury

instructions infringed Defendant’s constitutional rights; (IV)

there was a Clemons violation where the trial court upheld

Defendant’s death sentence after re-weighing the aggravating

and mitigating circumstances; and (V) that there was

prosecutorial misconduct during various stages of the

culpability and mitigation phases of the trial.

For the reasons set forth below, we AFFIRM in part

and REVERSE in part. We AFFIRM the judgment of the

district court as it relates to issues I, TV, and V, but we

REVERSE the district court’s judgment as to issues II and

3a

Ill, and REMAND with instructions to grant Defendant’s

petition as to these issues.

BACKGROUND

I. Procedural History

On March 29, 1983, the Cuyahoga County Grand

Jury indicted Defendant Spisak on four counts of aggravated

murder in violation of Ohio Rev. Code § 2903.01; three

counts of aggravated robbery in violation of Ohio Rev. Code

§ 2911.01; one count of attempted murder in violation of

Ohio Rev. Code § 2903.02; and one count of receiving stolen

property in violation of Ohio Rev. Code § 2913.51. Pursuant

to Ohio Rev. Code § 2929.04(A), the aggravated murder

counts contained nineteen death penalty specifications.

Defendant pled not guilty by reason of insanity,

claiming to be a follower of Adolf Hitler, as to all counts on

April 8, 1983. Before trial, the court ordered Defendant to be

evaluated by Dr. Phillip Resnick (“Resnick”), to determine

his competency to stand trial. Defendant also requested, and

was granted psychiatric evaluations by four other

psychiatrists: Dr. Sandra McPherson (“McPherson”), Dr

Kurt Bertschinger (“Bertschinger’), Dr. S.M. Samy

(“Samy”), and Dr. Oscar Markey (“Markey”). Thereafter, the

trial court held a competency hearing, wherein it was

determined, based on Resnick’s recommendation, that

Defendant was competent to stand trial.

A jury convicted Defendant on July 27, 1983 of all

counts and specifications, except for one of the aggravated

robbery counts. After the mitigation phase of the trial, the

jury recommended a sentence of death, which was accepted

by the trial court, and Defendant was sentenced to death on

August 10, 1983. Defendant was also sentenced to terms of

seven to twenty-five years imprisonment on each attempted

murder and aggravated robbery conviction.

4a

Defendant timely appealed his convictions and

sentence to the Ohio Court of Appeals for the Eighth District.

The court found that Defendant was improperly convicted of

two counts of aggravated murder for the death of Timothy

Sheehan, and vacated one of the two convictions. The court

affirmed the conviction and death sentence on the other

aggravated murder charges, as well as the five specifications

attached thereto, leaving Defendant with three aggravated

murder convictions, and fifteen death penalty specifications.

State v.. Spisak, Nos. 47458, 47459, 1984 WL 13992 (Ohio

Ct. App. 1984).

After a number of intervening appeals to the Eighth

District Court of Appeals, and requests for remand to the

Ohio Supreme Court, Defendant finally filed his merits brief

with the Ohio Supreme Court on November 24, 1986, in

which he raised sixty-four proposed errors of law. The Ohio

Supreme Court issued an abbreviated opinion on April 13,

1988, affirming Defendant’s convictions and sentence. State

v. Spisak, 521 N.E.2d 800 (Ohio 1988).

Defendant then petitioned the U.S. Supreme Court for

a writ of certiorari, but the petition was denied. Spisak v.

Ohio, 489 U.S. 1071 (1989). Defendant spent the next six

years filing and appealing denials of countless motions for

post-conviction relief.

On December 15, 1995, Defendant filed a Notice of

Intent to File a Petition for Writ of Habeas Corpus with this

Court. Subsequent to filing the petition, Defendant filed a

motion with this Court on June 13, 1997 to stay his

execution, which was granted.

Defendant filed his petition for writ of habeas corpus

pursuant to 28 U.S.C. § 2254 on April 9, 1997, raising thirty-

three grounds for relief. The district court issued an Opinion

and Order denying the petition on April 18, 2003, but the

court granted Defendant a certificate of appealability as to

5a

thirteen of his claims. Defendant filed a Rule 59 motion to

alter or amend judgment on July 29, 2003. In response to that

motion, the district court granted an additional certificate of

appealability as to one sub claim. Defendant timely appealed

to this Court on July 31, 2003.

I. Factual History

In its rejection of Defendant’s direct appeal, the Ohio

Supreme Court set forth binding factual findings with respect

to the overwhelming evidence adduced at Defendant’s trial.

Under 28 U.S.C. §2254(e)(1), Defendant has “the burden of

rebutting the presumption of correctness by clear and

convincing evidence.” Defendant does not challenge these

factual findings, so we adopt them below.

On February 1, 1982, the body of the

Reverend Horace T. Rickerson was

discovered by a fellow student on the floor of

a restroom on the Cleveland State University

campus. Rickerson had been shot seven times

by an assailant from a distance of more than

eighteen inches. Four spent bullet casings

were recovered from the scene.

On the evening of June 4, 1982, John

Hardaway was shot seven times while waiting

for an RTA train at the West 117th Rapid

Station in Cleveland. He observed a man

walking up the platform steps and had turned

away when the man opened fire on him.

Hardaway survived the shooting, and was

later able to identify his assailant as the

appellant, Frank G. Spisak. Three pellets and

seven shell casings were recovered from the

scene.

6a

At approximately 5:00 p.m. on August 9,

1982, Coletta Dartt, an employee of Cleveland

State University, left her office to use the

restroom. Upon exiting the stall, she

encountered the appellant, holding a gun, who

ordered her back into the stall. Instead, Dartt

shoved appellant out of the way and ran down

the hallway. Appellant shot at her, but missed.

A pellet was later removed from a wall in the

hallway. Dartt identified the appellant as her

assailant.

On August 27, 1982, the body of Timothy

Sheehan, an employee of Cleveland State

University, was discovered in a restroom at

the university by a security guard. The guard

had been searching for Sheehan after his

office reported that he had failed to answer his

beeper page. Sheehan had been shot four

times, and two pellets were retrieved from the

scene.

On the morning of August 30, 1982, the body

of a young student, Brian Warford, was

discovered in a bus shelter on the campus of

Cleveland State University. Warford died

from a single gunshot wound to the head,

although five spent .22 caliber casings were

recovered from the scene.

On September 4, 1982, Cleveland police

answered a call that a man was firing shots

from a window at 1367 East 53rd Street. The

police were directed to appellant’s apartment

and appellant, after admitting he had fired one

shot, invited the officers inside. A shotgun and

a .22 caliber automatic pistol were observed in

Ta

the room. Appellant made a suspicious move

toward the couch but was stopped by one of

the officers who discovered a loaded .38

caliber handgun and a two-shot derringer

under the couch cushions. Appellant was

arrested for possession of unregistered

handguns and discharging firearms within city

limits, but was later released on bond. The

weapons, however, were confiscated. Early

the next day, an anonymous caller told police

that the confiscated weapons had been used in

the Cleveland State University shootings.

Ballistics tests confirmed the tip. A warrant

was obtained, and the police returned to

Spisak’s apartment, confiscating several items

including newspaper clippings of the

homicides and Nazi-White Power

paraphernalia. Appellant was later arrested,

hiding in the basement of a friend’s house.

During a brief search of appellant’s suitcase at

the scene, police discovered the beeper pager

belonging to Sheehan.

Appellant later admitted to shooting

Rickerson for allegedly making a homosexual

advance toward him; to killing Sheehan as a

possible witness to the Rickerson shooting; to

killing Warford while on a “hunting party”

looking for a black person to kill; and finally,

to shooting at Dartt and to shooting

Hardaway. He also told police he had replaced

the barrel of the .22 caliber handgun in order

to conceal the murder weapon.

Spisak, 521 N.E.2d at 800-01.

8a

STANDARD OF REVIEW

In habeas appeals, we review the district court’s legal

conclusions de novo and the factual findings for clear error.

Jordan vy. Hurley, 397 F.3d 360, 362 (6th Cir. 2005).

However, following the enactment of the Antiterrorism and

Effective Death Penalty Act of 1996 (“AEDPA”),

{a]n application for a writ of habeas corpus on

behalf of a person in custody pursuant to the

judgment of a State Court 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 — 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.

28 U.S.C. § 2254(d)(1) (2000). The inquiry is “limited to an

examination of the legal landscape as it would have appeared

to the Michigan state courts in light of Supreme Court

precedent at the time [the defendant’s] conviction became

final.” Onifer v. Tyszkiewicz, 255 F.3d 313, 317-18 (6th Cir.

2001). For purposes of 28 U.S.C. § 2254(d)(1), “clearly

established law . . . ‘refers to the holdings, as opposed to the

dicta, of [the Supreme Court’s] decisions as of the time of the

relevant state-court decision."” Yarborough v. Alvarado, 541

U.S. 652, 660-61 (2004) (quoting Williams v. Taylor, 529

U.S. 362, 412 (2000)).

A state court decision can be “contrary to” “clearly

established federal law” if it applies a rule that contradicts the

governing law set forth in Supreme Court cases; or the state

court decision confronts a set of facts that are materially

indistinguishable from a decision of the Supreme Court and

nevertheless arrives at a result different from Supreme Court

precedent. Williams, 529 U.S. at 405; Bailey v. Mitchell, 271

F.3d 652, 656 (6th Cir. 2001). The state court decision

9a

constitutes an “unreasonable application” of “clearly

established federal law” where the state court identifies the

correct governing legal rule from the Supreme Court’s cases

but unreasonably applies it to the facts of the particular state

prisoner’s case; or the state court either unreasonably extends

a legal principle from a Supreme Court 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.

Williams, 529 U.S. at 407; Bailey, 271 F.3d at 655. A federal

habeas court may not find a state adjudication to be

“unreasonable” “simply because that court concludes in its

independent judgment that the relevant state-court decision

applied clearly established federal law erroneously or

incorrectly.” Williams, 529 U.S. at 411. Rather, the issue is

whether the state court's application of clearly established

federal law is “objectively unreasonable.” Jd. at 409.

AEDPA requires heightened respect for state court

factual findings and legal determinations. Herbert v. Billy,

160 F.3d 1131, 1134 (6th Cir. 1998). A determination of a

factual issue made by a state court is presumed to be correct,

and the Defendant has the burden of rebutting the

presumption of correctness by clear and convincing evidence.

28 U.S.C. § 2254(e)(1).

DISCUSSION

I. Not Guilty By Reason of Insanity Defense

Defendant sought to present an insanity defense to the

jury during the guilt phase of his trial, but the trial court

disallowed the defense by: (1) striking the testimony of

Defendant's expert, Markey; (2) refusing to allow any other

experts to testify as to Defendant’s sanity; and (3) refusing to

instruct the jury as to an insanity defense. Defendant raised

this issue on direct appeal to the Ohio Eighth District Court

of Appeals, which found that the trial court did not err in

striking Markey’s testimony since it did little to alter the

presumption that Defendant was sane, and was likely to have

10a

confused the jury on the issue. Spisak, 1984 WL 13992, at

*S. The Eighth District Court of Appeals further found that

Defendant was not entitled to a jury instruction on the

insanity defense because Defendant had failed to meet his

burden of going forward with evidence of legal insanity. Jd.

at *6. The Supreme Court of Ohio summarily affirmed the

Court of Appeal’s decision. State v. Spisak, 521 N.E.2d at

800. On habeas review, the district court agreed with the

Eighth District Court of Appeals that Markey’s testimony

would not aid Defendant’s insanity defense, and thus, that

Defendant’s constitutional rights were not violated by the

exclusion of the testimony. The district court further found

that Defendant was not entitled to a jury instruction on the

defense. Defendant now appeals to this Court claiming that

the district court erred in finding that Defendant was not

denied a fair trial by the exclusion expert testimony and

evidence related to Defendant’s insanity defense, and that the

trial court did not violate clearly established federal law in

refusing to submit Defendant’s insanity defense to the jury.

A. Exclusion of Expert Testimony and Evidence

Defendant first argues that the district court infringed

his fundamental right to a fair trial by striking the testimony

of his expert, Markey, and by excluding testimony and

evidence from other experts related to Defendant’s insanity

defense. While it cannot be disputed that Defendant has a

fundamental mght to a fair trial, we do not agree that this

right was infringed by the state trial court’s evidentiary ruling

excluding what it considered to be irrelevant and potentially

prejudicial expert evidence.

“(T]he Constitution guarantees criminal defendants a

i Opportunity to present a complete defense.”

Crane v. Kentucky, 476 U.S. 683, 690 (1986) (internal

citations and quotations omitted). Having the opportunity to

be heard is an essential compcnent of procedural fairness. Id.

Being allowed to present “relevant evidence is integral to that

lla

right.” Baze v. Parker, 371 F.3d 310, 323 (6th Cir. 2004)

(citing Taylor v. Illinois, 484 U.S. 400, 408-09 (1988) for the

proposition that “[t]he need to develop all relevant facts in

the adversary system is both fundamental and

comprehensive”).

Federal courts have long recognized, however, that

“[a] defendant’s right to present relevant evidence is not

unlimited, but rather is subject to reasonable restrictions.”

United States v. Scheffer, 523 U.S. 303, 308 (1998) (citations

omitted). A defendant’s interest in relevant evidence “‘may, in

appropriate cases, bow to accommodate other legitimate

interests in the criminal trial process.” Rock v. Arkansas, 483

U.S. 44, 55 (1987) (citations omitted) (“In applying its

evidentiary rules a State must evaiuate whether the interests

served by a rule justify the limitation imposed on the

defendant’s constitutional right to testify.”). “As a result,

state and federal rulemakers have broad latitude under the

Constitution to establish rules excluding evidence from

criminal trials. Such rules do not abridge an accused’s right

to present a deZense so long as they are not ‘arbitrary’ or

‘disproportionate to the purposes they are designed to

serve.’” Scheffer, 523 U.S. at 308 (quoting Rock, 483 U.S. at

56).

The Supreme Court has, moreover, “found the

exclusion of evidence to be unconstitutionally arbitrary or

disproportionate only where it has infringed upon a weighty

interest of the accused.” Jd. (citing Rock, 483 U.S. at 56;

Chambers, 410 U.S. at 302; Washington v. Texas, 388 U.S.

14, 22-23 (1967)). “Only if an evidentiary ruling is so

egregious that it results in a denial of fundamental fairness

does it violate due process and thus warrant habeas relief.”

Baze, 371 F.3d at 323 (internal citations and quotations

omitted); see also Bugh v. Mitchell, 329 F.3d 496, 512 (6th

Cir. 2003) (“Generally, state-court evidentiary rulings cannot

rise to the level of due process violations unless they offend

ae

12a

some principle of justice so rooted in the traditions and

conscience of our people as to be ranked as fundamental.”

(internal citations and quotations omitted)).

In Crane, the Supreme Court dealt with this issue of

reviewing state evidentiary rules and explicitly

acknowledge[d] [its] traditional reluctance to

impose constitutional constraints on ordinary

evidentiary rulings by state trial courts. In any

given case the trial judge is called upon to

make dozens, sometimes hundreds, of

decisions concerning the admissibility of

evidence . . . the Constitution leaves the

judges who must make these decisions ‘wide

latitude’ to exclude evidence that is ‘repetitive

. . ., Only marginally relevant’ or poses an

undue risk of ‘harassment, prejudice, [or]

confusion of the issues’

Crane, 476 U.S. at 689-90 (quoting Delaware v. Van Arsdall,

475 U.S. 673, 679 (1986)). The Court further recognized that

the States have the power “to exclude evidence through the

application of evidentiary rules that themselves serve the

interests of fairness and reliability — even if the defendant

would prefer to see that evidence admitted.”' Jd. at 690

(citations omitted).

' The Crane Court held, however, that “without ‘signal[ing) any

diminution in the respect traditionally accorded to the States in the

establishment and implementation of their own criminal trial rules and

procedures,” under those circumstances, where the trial court had

excluded evidence of the surrounding circumstances of a defendant's

confession, that “the blanket exclusion of the proffered testimony about

the circumstances of Defendant’s confession deprived him of a fair trial.”

Id. at 690 (citations omitted).

l3a

1, Markey’s Testimony

After conducting four sessions with Defendant, Dr. Oscar

Markey, one of several psychiatric experts retained by

Defendant’s trial counsel, submitted a report in which he

diagnosed Defendant as suffering from a schizotypal

personality and latent atypical psychotic disorder. Markey

opined in his report that Defendant would not have been able

to control his impulse to assault his victims, even though he

knew that it was considered wrong by society. In light of this

report, Defendant’s trial counsel called Markey to testify at

trial in support of the defense’s contention that Defendant

was insane at the time of the shootings.

Prior to allowing Markey to testify before the jury,

however, the trial court conducted a fairly extensive voir dire

in which Markey was questioned about his conclusions as to

Defendant’s mental state. During the voir dire, Markey

testified that Defendant suffers from a “schizotypal

personality disorder” and “atypical psychotic disorder,” but

that he could not say that Defendant was psychotic at the

time of the killings. Markey later stressed that Defendant has

a “latent psychotic condition,” repeatedly emphasizing in

response to questions from defense counsel as to whether

Defendant suffered from a mental illness, that Defendant’s

mental illness was “latent” and that the “potential is there,”

but that Defendant “cannot be diagnosed as having an active

psychotic illness.” (J.A. at 1990-91.) When asked whether

Defendant knew that what he did was wrong, Markey

replied, “[i]n our society . . . I know that he knows that we

believe it is wrong, and that in this society in which he is

trying to cure these ills, society thinks what he did was

wrong,” but “in his view he did the right thing and there is

nothing to apologize for.” (J.A. at 2000.)

When defense counsel asked whether Defendant

could refrain from these acts, Markey gave a long, rambling,

and confusing answer that prompted several more questions

l4a

from counsel, but he eventually replied that “certainly, there

are times when he would refrain, and I think he must have

refrained in the past from acts like this because the

consequences might be uncomfortable for him.” (J.A. at

2007.) Markey then contradicted himself when asked

whether Defendant was unable to refrain from killing blacks

and Jews, and responded that it would seem that Defendant

was unable to refrain from killing blacks and Jews. Markey

then read from his report in which he stated that Defendant

was “unable to control his impulses to assault, though he was

at the time, aware of its being socially wrong.” (J.A. at 2009-

10.)

On cross examination, the prosecution challenged

Markey on his theory that Defendant did not know the

wrongfulness of his conduct.

Q. Do you know what the legal test for

insanity is?

A. Yes.

Q. What is that?

A. Did he know right from wrong, was he able

to control any impulses which would have

interfered with his knowledge of right from

wrong.

Q. And would he be — or was he able to

refrain from committing the acts that he

committed.

A. It was obvious, I think he knew the

difference, but remember he is changing the

world by this act.

Q. Well, if you believe what he says, that he

killed the Reverend because the Reverend

15a

made a homosexual pass, you would agree

that has nothing to do with his Nazi theory?

A. That’s right.

Q. You also agree that he refrained from

killing any Jews because as far as we know,

he is not charged with killing any Jews?

A. Because of what?

Q. He has not killed any Jews. Even if he

espouses the philosophy of killing Jews, he

has not done so. Therefore, we can conclude

that he has refrained from killing the Jews.

Fair enough?

A. Yes.

Q. I don’t think we have any disagreement.

You do say in all of the instances he knew the

difference between right and wrong, and you

do say in all of the instances he was able to

refrain from committing those acts if he would

have decided to refrain from doing it?

A. Yes.

(J.A. at 2012-13.) After admitting that Defendant knew the

difference between right and wrong, and was able to refrain

from his conduct, Markey later further contradicted his

earlier conclusion that Defendant coujd not refrain from

killing blacks and Jews by conceding on _ re-cross

examination that he essentially agreed with the conclusion of

another expert, Resnick, that “defendant knew the difference

between right and wrong and that he was able to refrain.”

(J.A. at 2027-28.) Despite these damaging and contradictory

admissions, however, the trial court ruled that Markey’s

conclusion that defendant could not control his impulse to

te

l6a

assault created a question of fact for the jury, and decided to

allow Markey to testify.

Once he was before the jury, Markey repeated his

conclusions that Defendant suffered from a “schizotypal

personality disorder” and a “possibility of a breakdown,

which could equate mental illness.” (J.A. at 2074.) Again,

however, Markey still would not directly answer “yes” or

“no” as to whether Defendant had a mental disease, but

instead kept referring to the “potential,” while conceding that

Defendant did not “have an active mental disease.” (J.A. at

2079.) At this point, the trial court excused the jury for an

extensive sidebar, during which time the judge, in an effort to

ascertain Markey’s actual position on the issue of

Defendant’s sanity, asked Markey several direct questions

about his diagnosis of Defendant.

Q. Doctor, in your opinion, obviously, it is

based on reasonable medical certainty, does

Mr. Spisak have a mental disease, actively

present?

A. Actively, no.

Q. Presently does he have a mental disease?

A. No.

Q. At the time these various crimes were

committed, February 1, 1982 through August

3, 1982, is it your opinion based on reasonable

medical certainty that Mr. Spisak had a mental

disease at that time?

A. On the basis of what I know, no.

(J.A. at 2080.) The judge then recalled the jury, and defense

counsel was allowed to continue questioning Markey. On

‘cross examination, the prosecution first got Markey to

reaffirm that Defendant does not have a mental disease,

fae

13%

17a

Stating “so, we can put that aside, mental disease and mental

defect aside, and we agree that he does not have either one of

these at this point, or in the past that you know of, correct?”

(J.A. at 2090.) Markey answered in the affirmative. Later

towards the end of the cross-examination, the following

exchange occurred, at which time Markey restated that

Defendant could refrain from killing:

Q. All I’m indicating to you, doctor, and

asking for your opinion is that he made a

conscious decision to shoot, or not to shoot on

each case that we have in this indictment?

A. Yes, he was not in a frenzy where he didn’t

know what he was doing. He had a conception

of what he was doing and he realized that he

could have —

Q. He could have refrained from pulling the

trigger on any of those five, had he chosen to

do so?

A. Yes.

(J.A. at 2096.) Although Defendant’s trial counsel then tried

to rehabilitate Markey’s testimony, it only proved to be

further damaging when Markey stated on re-direct:

The questions have been asked me before,

indicate that in every instance in which he did

assault, whether he killed or not, he was

calculating and knew whether or not he could

go ahead, in his view, he was positive in doing

it, that he had enough conscious control over

it to do it at a time when it would be to his

advantage. ...

(J.A. at 2097-98.)

The following morning, the prosecution filed an

objection to the continuation of Markey’s testimony on

18a

relevancy grounds, since Markey testified that Defendant did

not suffer from a mental disease or defect at the time of the

acts, and that Defendant knew the difference between right

and wrong and was able to conform his conduct to the

requirements of law. The prosecution moved that the

testimony not continue and that it be stricken because it

prejudiced the defense in that it reestablished the

presumption of sanity, and because it did not add anything

and was not relevant to the issue since the law already

presumes sanity. The prosecution further moved that the

defense be required to withdraw its plea of not guilty by

reason of insanity because there was not “one scintilla of

evidence offered that the defendant is anything but sane, and

was anything but sane at any of the times in the five charges

or five indictments.” (J.A. at 2103-04.) After hearing

arguments from both sides, the trial court granted the

prosecution’s motion, reasoning that when a plea of not

guilty by reason of insanity is entered, the expert offered by

the defendant “must meet a certain minimal standard,” which

the court concluded had not been met in this instance. (J.A. at

2118.)

Upon review of the transcript of Markey’s testimony,

we agree with the district court that the exclusion of

Markey’s testimony did not violate Defendant’s fundamental

right to a fair trial. At the outset, we would like to note that

this Court addressed a similar issue in the pre-AEDPA case,

Matlock v. Rose, 731 F.2d 1236 (6th Cir. 1984). The

defendant in Matlock appealed the district court’s denial of

his habeas petition, challenging the trial court’s exclusion of

a psychologist who testified that defendant Matlock knew

right from wrong only on the intellectual level of an eight or

nine year old. Id. at 1238. We rejected defendant’s argument

that “the exclusion of this testimony deprived him of his only

defense, that of insanity,” finding instead that the testimony

proffered would not have supported an insanity defense

under Tennessee law, and would in fact have probably

19a

undercut one. Jd. at 1243 (“The evidence excluded . . . would

not have made out a case of insanity .. . . At best, it would

have shown that Matlock was retarded with some brain

damage.”).

We find the situation in Matlock to be somewhat

analogous to the present case, and therefore conduct a similar

analysis, beginning with Ohio’s lega! definition of insanity,

and proceeding to consideration of whether the evidence

proffered by Dr. Markey would have established that

Defendant met this standard. We conclude that it would not

have.

Under Ohio law, as it stood at the time of Defendant’s

trial, a person accused of a crime could be found to be “not

guilty by reason of insanity” if “at the time of such conduct

as a result of mental disease or defect, he does not have the

capacity either to know the wrongfulness of his conduct or to

conform his conduct to the requirements of law.”* State v.

Staten, 247 N.E.2d 293, 296 (Ohio 1969). As illustrated by

the above-recounted excerpts, far from establishing that

Defendant “had a mental disease or defect” and “did not

know the wrongfulness of his condwt,” Markey repeatedly

stated that Defendant did not have a “present” mental defect

or disease, and that Defendant knew the wrongfulness of his

? Defendant correctly argues that the district court applied the wrong

standard for an insanity defense under Ohio law at the time of his

convictions. The district court utilized the standard for insanity set forth

at Ohio Rev. Code § 2901.01(a)(14), which provides that “a person is

‘not guilty by reason of insanity’ relative to a charge of an offense only if

he proves . . . that at the time of the commission of the offense, he did not

know, as a result of a severe mental disease or defect, the wrongfulness of

his conduct.” This was the incorrect standard because this definition of

insanity did not take effect until 1990, seven years after Defendant’s trial

in 1983. Although this was the wrong standard, the district court’s

analysis of the issue of the admissibility of Markey’s testimony and

ultimate conclusion 1s still correct.

20a

conduct. Thus, Markey’s testimony could not have supported

Defendant’s insanity defense, and in fact, even more so than

was the case in Matlock, would likely have severely undercut

such a defense since Markey explicitly diagnosed Defendant

as not meeting the necessary elements of the insanity defense

under Ohio law.

We also agree with the Eighth District Court of

Appeal’s conclusion that “there was a high probability that

[Markey’s] testimony would have confused the issue in the

minds of the jurors and would not have aided the jury in

understanding the evidence or in reaching a determination an

legal sanity.” Spisak, 1984 WL 13992, at *5 (“[W]hen a

defendant calls an expert to testify on the issue of legal

insanity, that expert’s testimony must still meet the basic

requirements of the Rules of Evidence.”).’? Markey’s

testimony was often contradictory and inconsistent. He

opined that Defendant did not consider his actions to be

> In deciding the issues on appeal, the Ohio Eighth District Court of

Appeals cited to the following rules of evidence:

Rule 403:

(A) Exclusion Mandatory. Although relevant, evidence

is not admissible if its probative value is substantially

outweighed by the danger of unfair prejudice, or

confusion of the issues, or of misleading the jury.

(B) Exclusion Discretionary. Although relevant,

evidence may be excluded if its probative value is

substantially outweighed by considerations of undue

delay, or needless presentation of cumulative evidence.

Rule 702:

If scientific, technical, or other specialized knowledge

will assist the trier of fact to understand the evidence or

to determine a fact in issue, a witness qualified as an

’ expert by knowledge, skill, experience, training, or

education, may testify thereto in the form of an opinion

or otherwise.

2la

wrong because he was ridding the world of bad persons, but

that Defendant knew that society considered his actions to be

wrong. Markey first stated that Defendant could not refrain

from killing blacks and Jews, but then contradicted himself

On cross examination, admitting that Defendant could and did

in fact refrain at times from engaging in such conduct.

Markey also thought the Defendant was a schizotypal

personality, but that Defendant had only a “latent” mental

disease or defect, not one that was “actively present.” For the

most part, it is difficult for this Court, let alone a jury, to

discern whether Markey actually believed that there was a

clinical diagnosis for what was wrong with Defendant. It

does seem biatantly apparent from his testimony, however,

that Markey did not believe that Defendant met the legal

definition of insa>‘ty under Ohio law. Therefore, Defendant’s

fundamental rights were not infringed by the trial court’s

decision to exclude Markey’s testimony.

il. Other Expert Reports and Evidence

We similarly agree with the district court that the trial

court properly excluded the other expert reports where all of

the experts opined that Defendant knew the wrongfulness of

his conduct when he carried out the shootings. After the

district court excluded Markey’s testimony, the defense

proffered Exhibits D through K, which included expert

reports from doctors Markey, Resnick, McPherson,

Bertschinger, Samy, Williger, and Althof, contending that

these doctors would testify to Defendant’s sanity and “would

give a better profile of the characteristics and personality of

the defendant Frank Spisak such that the Court would at that

time charge on the issue of sanity to the jury.” (J.A. at 2121.)

A detailed review of the proffered reports show, however,

that none of the doctors concluded that Defendant met the

standard for insanity under Ohio law. Resnick concluded,

first, that Defendant did not have a mental disease or defect

at the time of the crimes, and second, that he “knew the

22a

wrongfulness and was able to refrain from each of the acts . .

. Charged.” (J.A. at 3204.) McPherson made the following

diagnosis:

Mr. Spisak’s functioning at this time is

nonpsychotic, although he has potential for

deterioration under condition of minimal

stress of [sic] even in situations where there is

lacking adequate external control . . . his

accounts of the incidents do not meet the

criteria for an insanity defense. Nonetheless,

he is a significantly disturbed individual

whose defect of mental state is pervasive, and

was the general cause of his acts.”

(J.A. at 3214-15.) Bertschinger also diagnosed Defendant as

having a schizotypal personality and stated the following:

The defendant, Frank Spisak, demonstrates

severe defects in his personality structure .. .

He has severe conflicts regarding his sexual

identity and his sexual impulses are fused and

intermingled with aggressive impulses . . .

Generally speaking, personality disorders are

not considered to be mental diseas.’ .¢ mental

illness when being used in an insanity

defense. However, it is my opinion that Mr.

Spisak’s personality deficits are of such

severity that he can be considered to have a

mental illness or mental disease. However, in

carefully reviewing his mental state at the

time of the alleged crimes, it is my opinion

that he knew the wrongfulness of his acts and

had the ability to refrain from the acts.

(J.A. at 3217.) Samy’s report from the Ohio Department of

Mental Health stated in pertinent part that Defendant was

sane at the time of all the shootings, and that Defendant “was

found to be not mentally ill as defined by the Ohio Revised

23a

Code,” although “he has a personality disorder and identity

disorder.” (J.A. at 3225.) Lastly,* Althof concluded that:

While one could make a case for a chronic

psychotic process, his ego dysfunctions are

neither so pervasive nor profound, as to

warrant such a severe diagnosis .. . A

personality disorder diagnosis does not do

justice to the severity of the patient’s

psychological condition and yet his record is

not consistent with that of an overt psychotic

disorder.

(J.A. at 3239.)

The partial dissent argues that Defendant had some

right “to present evidence of his insanity cumulatively.”

Criminal defendants in Ohio do not have a right to cobble

together an insanity defense by selectively relying upon

favorable portions of psychiatric expert reports when no

single report supports a finding of insanity. Nor do criminal

defendants have an incontrovertible right to offer psychiatric

testimony in all circumstances where they believe it might

conceivably advance their defense. See State v. Wilcox, 436

N.E.2d 523 (Ohio 1982) (barring criminal defendants from

“offer[ing) expert psychiatric testimony, unrelated to the

insanity defense” to negate mens rea); State v. Taylor, 781

N.E.2d 72, 84 (Ohio 2002) (upholding a trial court decision

to exclude expert testimony which “did not support [the

defendant’s] insanity defense, since all three experts

concluded he was not insane”). Further, criminal defendants

certainly do not have a right to present the sort of irrelevant

and confusing testimony proffered by the experts in

* Williger’s report provides a detailed account of various interviews with

Defendant and his family members, but does not evaluate the information

to reach independent conclusions about Defendant's mental health.

24a

Defendant’s case. As previously discussed, Markey’s

testimony was riddled with contradictions: his statements on

cross examination often directly countered those on direct.

The single point of agreement among all of Defendant’s

other experts was that Defendant had a personality disorder.

Finally, even if the trial court had admitted these reporis,

taken as a whole, they still would not have provided support

for a “not guilty by reason of insanity defense.” With the

exception of Markey’s internally inconsistent testimony,

none of Defendant’s experts found that “at the time of the

criminal act with which he [was] charged, either he did not

know that such act was wrong or he did not have the ability

to refrain from doing that act.” See Staten, 247 N.E.2d at

299.

It was therefore consistent with Defendant’s rights for

the trial court to exclude this evidence. The Supreme Court

has held that, under these circumstances, judges in the

position of having to make these decisions must have “wide

latitude” to exclude evidence that they think is irrelevant,

potentially harmful or confusing to the jury. Crane, 467 U.S.

at 689-90. While a defendant is entitled to strcng latitude in

presenting his defense, we are not willing to substitute our

judgment for that of the state trial court in this instance,

where the record shows that the trial court’s decision was not

objectively unreasonable, taking into consideration the

language of the Supreme Court in Crane. Although the

partial dissent likens this case to Chambers and Crane, clear

distinctions lie between those cases and Defendant’s case. In

Chambers, the trial court applied state evidentiary rules to

prevent the defendant from adversely examining his witness,

a third party who previously confessed to the crime charged

against the defendant, and also excluded as hearsay the

testimony of three witnesses that the third party confessed to

the crime. Chambers, 410 U.S. at 291-92. The testimony

excluded in Chambers was mutually reinforcing, and wholly

exculpatory if credited by the jury. In Defendant’s case, the

25a

psychiatric testimony and reports were contradictory -

sometimes even internally inconsistent, as with Markey’s

stricken testimony at trial. Additionally, even if the jury

credited these inconsistent reports, they did not necessarily

exculpate Defendant. Finally, while the evidentiary rulings in

Chambers were destructive of the trial court’s truth-finding

purpose, see id. at 297 n.8 (“The ‘voucher’ rule has been

condemned as archaic, irrational, and potentially destructive

of the truth-gathering process.”’), the trial court’s rulings here

were consistent with the goal of truth-seeking since

Defendant’s contradictory and inconsistent expert testimony

would only engender confusion and speculation.

In Crane, the Supreme Court found that a

“meaningful opportunity to present a complete defense”

included the right to present “competent, reliable evidence

bearing on the credibility of a confession when such evidence

is central to the defendant's claim of innocence.” 476 U.S. at

690 (internal citations omitted). There, the defendant

confessed to the crime charged under coercive circumstances

and, pursuant to a pretrial ruling on a motion to suppress, the

court excluded all testimony at trial bearing on the

circumstances of that confession. /d. at 690. Unlike the

“potentially exculpatory” and “indispensable” evidence in

Crane, the expert testimony in Defendant’s case merely

established mental problems and not insanity. Thus, it cannot

be said that such testimony rose to the level of

“indispensable” or “potentially exculpatory.” Without

question, as the partial dissent asserts, Defendant's experts

were “competent” and “reliable” in their field. Indeed, these

experts so reliably discharged their function that they did not

bend their findings or shade their words to find insanity

where it did not exist. Their testimony, however reliable their

reputations, could not be taken to establish Defendant’s legal

insanity under Ohio law. Far from “mechanistically

appl[ying] the evidentiary relevancy standard” here — a result

strongly disfavored where a defendant’s right to present a

26a

defense is involved — the trial court gave Defendant’s expert

every opportunity to meet the court’s. evidentiary

requirements. The trial judge allowed Defendant’s expert to

testify before the jury notwithstanding his persistent tendency

to contradict himself during voir dire, entertained his

internally inconsistent testimony before the jury, dismissed

the jury for a sidebar during which the judge himself

questioned Markey to clarify the expert’s position, recalled

the jury and allowed Markey to continue testifying, and

ultimately entertained the arguments of both the prosecution

and defense on the relevance of Markey’s testimony. This

cannot be offhandedly equated with the type of

“mechanistic” application of evidentiary rules or “blanket

exclusion” of evidence that so clearly deprives a criminal

defendant of his right to present a defense.

The evidence in the record simply does not support a

conclusion that Defendant’s fundamental right to a fair trial

has been infringed by the exclusion of the expert evidence,

where the experts did not diagnose Defendant as being insane

within the legal definition under Ohio law. It was

conceivably within the discretion of the trial court to have

admitted this evidence, and perhaps, were we in the position

of the trial judge, we might have permitted Defendant to

present the testimony of his experts. Under the AEDPA

standard, however, we cannot overturn the discretionary

evidentiary rulings of a state trial court in the absence of

evidence that the trial court acted in a manner that was

contrary to, or a violation of, clearly established federal law.

The partial dissent draws support for the opposite

conclusion from Ake v. Oklahoma, 470 U.S. 68, 81 (1985).

Respectfully, such reliance is misplaced. As the partial

dissent correctly observes, Ake held that “due process

requires that indigent defendants be afforded the assistance of

a psychiatrist in preparing a defense.” In this case, Defendant

benefitted from the assistance of not one, but seven experts in

27a

his attempt to demonstrate insanity. Those experts evaluated

Defendant, diagnosed him, and prepared reports detailing

their diagnoses. Not one of those seven experts could testify

honestly and unequivocally that Defendant met Ohio’s legal

definition of insanity. Nor could their conclusions

“cumulatively” justify that result. The holding in Ake does

not require a trial court to permit such irrelevant testimony.

B. Refusal To Instruct The Jury As To The

Insanity Defense

Defendant also charges that the trial court improperly

refused to instruct the jury on the insanity defense. We

disagree. The “not guilty by reason of insanity” defense is an

affirmative defense under Ohio law, and the defendant has

the burden of going forward with the evidence of an

affirmative defense.” Ohio Rev. Code 2901.05(A); see also

State v. Humphries, 364 N.E.2d 1354, 1356 (Ohio 1977);

State v. Chase, 378 N.E. 1064, 1068 (Ohio 1978) (“Under the

statute, a defendant who pleads not guilty by reason of

insanity has the burden of going forward with evidence of a

nature and quality sufficient to raise the defense before the

jury.”); State v. Robbins, 388 N.E.2d 755, 758 (Ohio 1979)

(“The proper standard for determining in a criminal case

whether a defendant has successfully raised an affirmative

defense under R.C. 2901.05 is to inquire whether the

defendant has introduced sufficient evidence, which, if

believed, would raise a question in the minds of reasonable

men concerning the existence of such issue.”).

Even though the burden of going forward is on the

defendant, “[w]hen from the evidence reasonable minds may

* Ohio Rev. Code 2901.05(a) provides: “Every person accused of an

offense is presumed innocent until proven guilty beyond a reasonable

doubt, and the burden of proof for all elements of the offense is upon the

prosecution. The burden of going forward with the evidence of an

affirmative defense, and the burden of proof, by a preponderance of the

evidence, for an affirmative defense, is upon the accused.”

28a

reach different conclusions upon the question of insanity,

such question of fact is for the jury.” State v. Reynolds, 550

N.E.2d 490, 495 (Ohio Ct. App. 1988); State v. Filiaggi, 714

N.E.2d 867, 889 (Ohio 1999) (quoting State v. Thomas, 434

N.E.2d 1356, syllabus (Ohio 1982)) (“The weight to be given

the evidence and the credibility of the witnesses concerning

the establishment of the defense of insanity in a criminal

proceeding are primarily for the trier of the facts.”) “If

however, after giving the evidence the most favorable

interpretation in favor of the defendant, reasonable minds can

come to but one conclusion and that conclusion is adverse to

the defendant, it is the trial court’s duty to rule on the issue as

a matter of law.” Jd. (citations omitted) (holding that there

was enough evidence to permit a reasonable jury to find that

Reynolds was legally insane at the time the crime was

committed; therefore, it was error for the trial court to

withdraw the insanity defense from the jury and refuse to

instruct the jury concerning the insanity defense). -

We have already discussed what we believe to be the

insufficiency of Defendant’s proffered expert testimony and

evidence for establishing an insanity defense. In addition to

proffering the reports of the mental health experts, Defendant

also called his sister and ex-wife to testify as to his mental

state. Defendant’s sister, Nadine, testified that Defendant

once told her about an incident in which he killed somebody

and that he seemed to take delight in the killing. “I thought

he was crazy. He had that wild look in his eyes.” (J.A. at

2131.) She also testified that she had often told Defendant

that “he was crazy” and that there was “something wrong

with [him].” (J.A. at 2131.) Nadine further testified about

Defendant’s involvement with Nazi groups and teachings,

and said that she thought Defendant was insane for being a

Nazi. She described incidents in which Defendant wouid

dress in a Nazi uniform, but at other times wear the Star of

David while listening to Hitler tapes. She also spoke about

Defendant’s cross-dressing. Nadine told the court that she

ae

29a

thought that there was something dominating or possessing

Defendant.

Defendant’s ex-wife, Laverne Spisak, also testified

about Defendant’s listening to Hitler records, and his cross-

dressing. (J.A. at 2174-76.) Laverne testified that Defendant

started crossdressing after a car accident in 1976 that

“messed his mind up . . . he was a little sick . . . it affected his

mind very bad.” (J.A. at 2176-77.) She said that she told him

that he was “sick in the head” and needed help. (J.A. at

2178.) Laverne described one incident in which Defendant

brought home a man dressed as a woman, and went to bed

with the man, leaving her on the couch. Laverne testified that

she left Defendant at that point because she thought he was

“sick in the head,” but later tried to reconcile a couple of

years later. (J.A. at 2180-82.)

Defendant seeks to rely upon the decision from the

Ohio Second District Court of Appeals, State v. Reynolds,

550 N.E.2d 490 (Ohio Ct. App. 1988), where the court ruled

that lay witness testimony could establish an insanity

defense. In Reynolds, the trial court refused to instruct the

jury on the insanity defense because the expert had

concluded that defendant Reynolds was “psychologically

troubled but not insane.” /d. at 495. The Second District

Court of Appeals reversed on the ground that Defendant had

provided competent lay witness testimony from his sister,

that went to the issue of Defendant’s sanity. Jd. at 496.

(“Where the jury has competent testimony from lay witnesses

that would permit the jury to conclude that a defendant’s

reason was so impaired by disease or other defect of the mind

at the time of the criminal act that he either did not know that

such act was wrong, or did not have the ability to refrain

from doing that act, a jury is permitted to so find.”).

The Court found that the testimony provided by

Reynold’s sister was enough to create a jury question on the

issue of insanity where the sister testified “concerning

30a

Reynolds’ extensive history of hospitalization for mental

illness, and his use of antipsychotic drugs.” Id at 494. The

sister provided information about Reynolds’ erratic behavior

when he is off his medication, and further testified that to her

knowledge, Reynolds was not on his medication at the time

of the assault that was the subject of the trial. Id. The court

found that this testimony was enough “from which a

reasonable juror might conclude that Reynolds’ reason was

sO impaired at the time of the criminal act that he either did

not know that such act was wrong, or did not have the ability

to refrain from doing the act.” Jd. at 495.

In contrast to the lay witness testimony provided by

the sister in Reynolds, the testimony of the lay witnesses in

the present case was not of a nature or quality sufficient to

create a jury question on the issue of Defendant’s sanity.

Defendant’s ex-wife and sister described unusual, perhaps

even bizarre behavior that certainly may have been

questionable and alarming for Defendant’s family, but this

type of behavior does not raise a question of legal insanity.

Our society is rife with cross-dressers, latent homosexuals,

bisexuals and even Hitler-supporting Nazis. While this type

of behavior may be considered socially unacceptable by

many, it by no means is determinative of legal insanity.

Furthermore, juxtaposed against the testimony from

Laverne and Nadine that Defendant was crazy or that “there

was something wrong with him,” there was also a great deal

of evidence and testimony about the fact that Defendant

selectively chose his victims and the times he would kill, in

an effort to avoid being caught. This evidence suggests that

Defendant was not unaware of the wrongfulness of his

conduct or unable to refrain from committing the murders.

Dr. Resnick testified and read extensive extracts from his

report of his interviews with Defendant, and Defendant’s

account of the various incidents. For instance, after his first

encounter with the victim Timothy Sheehan, in which

3la

Defendant attempted to engage Sheehan sexually in the

men’s room at Cleveland State University, Defendant

reported to Resnick that “he left the men’s room because he

was unsure if Mr. Sheehan might call the police, and spent 45

to 60 minutes in the library nearby.” (J.A. at 2278.)

Defendant also reported that he shot Reverend Rickerson

because Rickerson was in “his stall,” he was in a bad mood,

and also because Rickerson persisted in making homosexual

advances toward him. (J.A. at 2279.) Afterward, Defendant

“ran out quickly because he was scared.” Defendant admitted

to Resnick that “he would not have shot him if others had

been in the bathroom for fear of being caught.” (J.A. at

2279.)

Defendant told Resnick that he tried to kill Coletta

Dartt because he became angry when he heard people

making fun of the “White People’s Party.” He decided to

teach her a lesson and intended to “slap the shit out of her

and rob her” when she came out of the ladies’ room at

Cleveland State. (J.A. at 2280.) Defendant also said that

robbery was in part the motivation for the shooting of

Timothy Sheehan. He said that he needed money and “he

thought in his mind that it was not fair that this man had

money and he did not” and “[hje knew that if he did take

money from him and let him live, the victim might identify

him in the future.” (J.A. at 2282.) Defendant then shot

Sheehan four times, and afterward, he reported that he

searched Sheehan for cash and left “real quick because he did

not want to get caught.” (J.A. at 2282.) Defendant also

reported that the Friday after the shootings in the bathroom,

he and a friend went out “looking for black people to shoot,”

but did not manage to shoot any. (J.A. at 2283.) They tried

again the following Sunday, but again abandoned their plan

“rather than risk getting caught.” (J.A. at 2283-84.)

According to Defendant, his friend “was more conservative

and discouraged him from shooting unless the situation was

safe.” (J.A. at 2284.)

32a

Defendant’s own testimony at trial also contradicts

the idea that he was insane at the time of the killings. When

asked why he killed Reverend Rickerson, Defendant

responded that he killed Rickerson “because he was

bothering me. He was making obscene lewd gestures at me. .

. He wasn’t leaving me alone.” (J.A. at 1447.) Defendant

himself testified that after shooting Sheehan, he picked up the

brass casings from his gun because the brass is worth money

and also because “it’s sloppy to leave it laying around.” (J.A.

at 1602.) Defendant further testified that he shot Hardaway

on the other side of town away from Cleveland State, where

the other shootings had taken place, because “he didn’t want

the police to link the two shootings together and link it to

[him],” and he “didn’t want to get caught.” (J.A. at 1791.)

After testifying that he shot the victim Brian Warford sitting

in the bus shelter eight times in the head because Warford

was “one of the enemies,” Defendant then said that he felt

good about the shooting, but “was just worried about getting

back across to the other side of the campus to where I put the

car because I figured in the early morning hours it was so

quiet somebody was bound to hear all the shots.” (J.A. at

1573.) In further efforts to avoid being linked to the murders,

Defendant cut off the barrel and rubbed off the serial

numbers of the gun he used. (J.A. at 1767.) After police

discovered that Defendant was the shooter, they found

Defendant hiding out in the cellar of a friend’s basement until

he could leave town to avoid capture. (J.A. at 1801.)

On the balance of the evidence presented at trial, we

conclude that the trial court did not err in refusing to instruct

the jury on the insanity defense. Defendant did not present

sufficient evidence to make it an issue for the jury. The

experts all concluded that Defendant was sane and knew the

wrongfulness of his conduct. The evidence of decisions that

were made by Defendant to not act at certain times or to take

measures to avoid getting caught weigh heavily against a

finding that Defendant was legally insane. Also, the mere

33a

fact that Defendant was engaged in Nazi activities and

considered himself to be part of a race war does not create an

inference that he was legally insane. Defendant testified that

he wanted to “get as many [black people] as I could before I

got caught, one thousand, a million, the more the better.”

(J.A. at 1449.) Defendant said he armed himself “for the race

war.” (J.A. at 1451.) Again, while these views are anti-social

and probably evidence of a serious persomality disorder, we

are not prepared to hold that Neo-Nazi: racist and anti-

Semitic views establish a lack of guilt by reason of insanity,

where the evidence clearly suggests that Defendant did not

have a mental disease or defect, and knew the wrongfulness

of his conduct.

II. Ineffective Assistance of Counsel During

Mitigation Phase

The Supreme Court first articulated the now familiar

two-part test for determining whether counsel is ineffective

in Strickland v. Washington, 466 U.S. 668 (1984). Under

Strickland, a defendant seeking to establish that his counsel’s

assistance was ineffective must show: (1) that his counsel’s

performance was deficient, in other words, that it “fell below

an objective standard of reasonableness;” and (2) that the

defense was prejudiced ‘%y the attorney’s deficient

performance. Strickland, 466 U.S. at 687-88. Although trial

counsel’s performance here is subject to de novo review, the

reviewing Court’s scrutiny of counsel’s performance is

highly deferential, and counsel is “strongly presumed to have

rendered adequate assistance and made all significant

decisions in the exercise of reasonable professional

judgment.” McQueen v. Scroggy, 99 F.3d 1302, 1311 (6th

Cir. 1996) (overruled on other grounds). The reviewing Court

must “evaluate the reasonableness of counsel’s performance

within the context of the circumstances at the time of the

alleged errors.” /d. (citations omitted). “Trial counsel’s

tactical decisions are particularly difficult to attack, and a

34a

defendant’s challenge to such decisions must overcome a

presumption that the challenged action might be considered

sound trial strategy.” /d. (internal citations and quotations

omitted).

In order to establish deficiency under Strickland,

Defendant must show that counsel “made errors so serious

that counsel was not functioning as the ‘counsel’ guaranteed

[Defendant] by the Sixth Amendment.” Strickland, 466 U.S.

at 687. To satisfy the prejudice prong of the Strickland, “[t]he

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.” Jd at 694. The

inquiry, when a defendant challenges a conviction, is whether

“there is a reasonable probability that, absent the errors, the

sentencer . . . would have concluded that the balance of

aggravating and mitigating circumstances did not warrant

death.” Jd. at 695; see also Wiggins v. Smith, 539 U.S. 510,

537 (2003) (Defendant demonstrates prejudice if he can show

that there is a reasonable probability that “at least one juror

would have struck a different balance”).

The Strickland Court explained that while strategic

choices made after a thorough investigation

are virtually unchallengeable . . . strategic

choices made after a less than complete

investigation are reasonable precisely to the

extent that reasonable professional judgments

support the limitations on investigation. In

other words, counsel has a duty to make

reasonable investigation or to make a

reasonable decision that a particular

investigation is unnecessary.

Id. at 690-91. Thus it follows that any decision to forego

mitigation evidence is unreasonable if not made after a

reasonable decision to cease further investigation. See id.

35a

A. Hostile Remarks During The _ Closing

Argument Of The Mitigation Phase

Defendant first argues that his counsel rendered

ineffective assistance during his closing argument at

sentencing by repeatedly stressing the brutality of the crimes

and demeaning Defendant. We agree. The transcript reveals

that in the early part of the closing, trial counsel did focus

rather heavily on what he called the aggravating

circumstances and the heinousness of the crimes.

Defendant’s trial counsel addressed the jury, telling them that

“so little really needs to be said about the degree of

aggravating factors, clearly horrendous,” and pointed out that

no one involved in the trial was ever going to forget it or

Defendant. (J.A. at 3061.) Trial counsel went on to make the

following disturbing remarks:

[E]veryone of us who went through this tral,

we know we can feel that cold day . . . or see

that cold marble, and will forever . . . see

Horace .Rickerson dead on the cold floor.

Aggravating circumstances, indeed it is .. .

the reality of what happened there . . . you can

smell almost the blood. You can smell, if you

will, the urine. You are in a bathroom, and it

is death, and you can smell the death . . . and

you can feel, the loneliness of that railroad

platform .. . And we can all appreciate, and

you can understand, and we can all know the

terror that John Hardaway felt when he turned

and looked into those thick glasses and looked

into the muzzle of a gun that kept spitting out

bullets ... And we can see a relatively young

man cut down with so many years to live, and

we could remember his widow, and we

certainly can remember looking at his children

... you and I and everyone one of us, we were

36a

sitting in that bus shelter, and you can see the

kid, the kid that was asleep, the kid that never

[sic] what hit him, and we can feel that bullet

hitting, and that’s an aggravating circumstance

... There are too many family albums. There

are too many family portraits dated 1982 that

have too many empty spaces. And there is too

much terror left in the hearts of those that we

call lucky.

(/d. at 3062-65.) The district court concluded that this

extremely graphic and overly descriptive recounting of

Defendant’s crimes were an appropriate part of trial

counsel’s strategy to confront the heinousness of the murders

before the prosecution had the opportunity to do so. The

district court reasoned that once counsel identified with their

emotions towards Defendant, he could then explain to them

that their feelings were misplaced because Defendant was

mentally ill. Hed Defendant’s trial counsel actually done the

latter, and spent a substantial amount of the time humanizing

and rehabilitating Defendant in the eyes of the jury by

arguing that Defendant was misguided or mentally ill and

deserved to have his life spared, then the district court might

be correct that this was permissible trial strategy. The record

reveals, however, that trial counsel did very little to offset the

negative feelings that his own hostility and disgust for

Defendant may “ave evoked in the jury. Instead, as

Defendant argues, trial counsel further denigrated Defendant

and even went so far as to tell the jury that Defendant was

undeserving of mitigation.

Trial counsel’s efforts at presenting mitigating

evidence consisted of telling the jury about what he described

as Defendant’s “sick twisted mind” and his association with

the Third Reich and the Nazis, and what counsel perceived it

was like to be inside Defendant’s mind, based on

Defendant's testimony about the murders. While trial counsel

37a

did then try to stress that Defendant was mentally ill, even if

not legally insane, trial counsel proceeded to undermine this

limited effort by making the following inexplicable remarks:

Sympathy, of course, is not part of your

consideration. And even if it was, certainly,

don’t look to him for sympathy, because he

demands none. And, ladies and gentlemen,

when you turn and look at Frank Spisak, don’t

look for good deeds, because he has done

none. Don’t look for good thoughts, because

he has none. He is sick, he is twisted. He is

demented, and he is never going to be any

different.

(J.A. at 3069.) Trial counsel’s performance did not improve

atter this, but rather counsel continued to do further harm to

Defendant by rambling incoherently towards the end of the

closing statement about integrity in the legal system. Trial

counsel’s final moments were not devoted to a discussion of

the reasons why Defendant’s mental illness made him

deserving of mitigation, but rather to discussing all the other

participants in the trial. Namely, trial counsel discussed the

jurors, lawyers, the judge, policemen, and the victims’

families, and focused on the importance of the jury’s decision

to all of these various individuals, instead of arguing how and

why the mitigating factors outweighed the aggravating

factors. Most shocking of all, however, trial counsel

suggested to the jury that either outcome, death or life, would

be a valid conclusion, by stating to the jury that “whatever

you do, we are going to be proud of you.” (J.A. 3101.)

We find persuasive Defendant's argument that in

pursuing this course, trial counsel abandoned the duty of

loyalty owed to Defendant, as was the case in Rickman v.

Bell, 131 F.3d 1150 (6th Cir. 1997). In Rickman, counsel

pursued a similar strategy of attempting to portray his client

as a “sick” and “twisted” individual which should mitigate

#4

*

»

38a

the death sentence. Trial counsel’s strategy in Rickman

involved repeated attacks on his client’s character, eliciting

damaging character evidence about his client, making

disparaging comments to any witness who spoke favorably

about his client, and apologizing to the prosecutors for his

client’s crime. /d. at 1157. This court concluded that

counsel’s performance was “outrageous” because his attacks

on Rickman equaled or exceeded those of the prosecution. /d.

The court found that the defendant was effectively deprived

of assistance of counsel in light of the severity of counsel's

conduct. Jd. at 1160.

We believe that trial counsel's actions discussed

above are so egregious that they are equivalent to those in

Rickman, and similarly deprived Defendant of effective

assistance of counsel, in violation of the Sixth Amendment.

Here, as in Rickman, trial counsel’s hostility toward

Defendant aligned counsel with the prosecution against his

own client. Much of Defendant’s counsel’s argument during

the closing of mitigation could have been made by the

prosecution, and if it had, would likely have been grounds for

a successful prosecutorial misconduct claim. As was the case

in Rickman, “[{thje effect [counsel] created was not one of

pity for a pathetic [Defendant], but one of hostility toward

the hated and violent freak.” /d. at 1160. In light of all the

circumstances of this case, and even conceding that counsel

faced some unique challenges, we still find that Defendant

has rebutted the “strong presumption” that counsel’s actions

constituted “sound trial strategy.” Strickland, 466 U.S. at

689. Defendant is correct that “there cannot be any

objectively reasonable tactical reason to argue to the jury in a

mitigation phase that one’s client has no redeeming qualities,

will never be rehabilitated, has never done a good deed, is

not deserving of no (sic) sympathy, and is entitled to no

mitigation.” (Def.’s Br. at 64.) Absent trial counsel’s

behavior during the closing argument of the mitigation phase

of the trial, we find that a reasonable probability exists that at

39a

least one juror would have reached a different conclusion

about the appropriateness of death, and may have voted for

life instead. Therefore, we reverse the district court’s denial

of habeas on this claim.

B. Failure To Adequately Investigate Defendant's

Background

We find unpersuasive, however, Defendant’s claim

that trial counsel should have presented more evidence to the

jury during the mitigation phase of the trial. The Supreme

Court has now applied Strickland in the AEDPA context at

least three times to hold that a defense attorney's failure to

adequately investigate and present mitigating evidence at the

sentencing phase of a death penalty trial constitutes

ineffective assistance of counsel. See Rompilla v. Beard, 545

U.S. 374, 383 (2005); Wiggins, 539 U.S. at 537-38; Williams,

529 U.S. at 390. In those cases, the Court cautioned that trial

counsel has an “obligation to conduct a _ thorough

investigation of the defendant’s background” in death penalty

cases. Wiggins, 539 U.S. at 522 (citing ABA guidelines

advising attorneys to conduct through investigations);

Williams, 529 U.S. at 396. In this context, the Supreme Court

has warned against a tendency to invoke “strategy” as a

“post-hoc rationalization of counsel’s conduct [rather] than

an accurate description of their deliberations prior to

sentencing” to explain counsel’s decisions. /d. at 527.

This Court has to first determine whether counsel

conducted a reasonable investigation of Defendant’s

background. Prior to trial, an extensive social history was

obtained on Defendant, based on interviews with Defendant,

his father, mother, and two sisters as well as various medical

records. The report contained information about the family

dynamics, including the fact that Defendant’s father was

emotionally distant and that his mother was a strict

disciplinarian. Defendant argues that this information should

have led to further investigation into his background, and that

40a

trial counsel should have presented various childhood

experiences as mitigating evidence. However, the only

relevant background that Defendant argues should have been

put forth is the fact that he had an extremely strict mother

who humiliated and hit him when he displayed sexual

behavior, and who also taught him to hate people of color

and others whom she deemed to be “undesirable” or

“repulsive.” (Def.’s Br. at 68-72.) Defendant argues that this

information would have helped the jury understand his

troubled history and would have provided some explanation

for his behavior.

Despite Defendant’s claim that more information

should have been presented, the record shows that the various

mental health experts retained by defense counsel to establish

an insanity defense all testified and talked about Defendant’s

childhood, and the fact that it was marked by social isolation

and a lack of ability to form inter-group relationships. The

experts also discussed Defendant’s gender confusion, and

how that was tied to violent tendencies and the urge to kill.

During Dr. Bertschinger’s testimony, counsel

inquired into, and Bertschinger discussed, Defendant’s

pursuit of a sex change operation. In light of the evidence

that was presented, we do not agree that trial counsel was

ineffective in failing to properly investigate Defendant’s

background. Moreover, even if there should have been more

investigation, Defendant must demonstrate that he suffered

prejudice as a result of counsel’s omission, and that at least

one juror would have reached a different result had this

additional evidence been presented. See Wiggins, 539 U.S. at

536; Hamblin v. Mitchell, 354 F.3d 482, 493 (6th Cir. 2003).

Defendant has not shown that a reasonable probability exists

that one juror would have reached a different conclusion

given additional evidence. The best chance of mitigation

available was in fact the evidence that Defendant was, to

some “degree, mentally ill. If the extensive evidence of

4la

Defendant’s severe personality disorder, flirtation with the

idea of having a sex change, sexual confusion, and social

isolation was not enough to sway jurors, then we do not

believe that evidence that Defendant’s mother was a strict

disciplinarian would have changed the mind of at least one

juror.

Furthermore, this additional evidence does not rise to

the level that this court generally has required to demonstrate

prejudice. See Hamblin, 354 F.3d at 490-91 (where counsel

failed to discover evidence of extreme poverty, neglect,

violence, and instability, as well as a mental disorder);

Coleman v. Mitchell, 268 F.3d 417, 450-51 (6th Cir. 2001)

(where counsel did not discover defendant’s history of

abandonment, physical and psychological abuse, and

pedophilia, as well as personality disorder and probable

psychosis); Greer v. Mitchell, 264 F.3d 663, 678 (6th Cir.

2001) (counsel did not follow-up on knowledge of family

history which included violence, foster care, incarceration,

and alcoholism); Carter v. Bell, 218 F.3d 581, 596-97 (6th

Cir. 2000) (counsel did not investigate childhood history of

violence and instability). Defendant’s only additional

evidence is that his mother was a strict disciplinarian, his

father was often absent, that his mother would hit him for

expressing sexual behavior, and that his mother taught him to

distrust black people. Taken together, this is not enough to

establish prejudice. Indeed, Defendant's childhood appears to

have been relatively stable, with no poverty, and an absence

of physical abuse, other than corporal punishment.

We should also note that we find unpersuasive

Defendant’s argument that it was unreasonable for trial

counsel to utilize the same experts who were retained to

testify as to Defendant’s sanity. This argument has no merit

where the record establishes that these experts did in fact

testify during mitigation about the effects that Defendant's

childhood, sexual confusion, racism, and “personality

42a

disorders” may have had on his behavior. There was no need

for counsel to retain a new battery of experts to essentially

reproduce what had been done by doctors Markey,

McPherson, and Bertschinger.

Lastly, we do not believe that it was unreasonable for

trial counsel to push to have the mitigation phase of the trial

begin the day after the jury rendered the verdict. Several of

the experts were leaving town, and trial counsel decided not

to seek a continuance. While Defendant argues that this

expeditious push to mitigation meant that trial counsel had

not had time to prepare the strongest possible mitigation case,

we have no way to determine from the record below how or

when trial counsel prepared for mitigation. As far as we

know, trial counsel may have had, and certainly should have

had, a team working on mitigation for weeks beforehand,

thereby making it unnecessary to seek a continuance. We are

not in a position to say that trial counsel’s failure to seek a

continuance constituted a deficiency that caused Defendant

prejudice.

In conclusion, we grant Defendant habeas relief on

his ineffective assistance of counsel claim on the basis of

counsel's hostile and inept statements and lack of advocacy

during the closing argument of the mitigation phase of the

trial.

Il. Acquittal First Jury Instruction

Defendant next claims that the trial court

unconstitutionally instructed the jury that its sentencing

decision had to be unanimous and gave an improper

“acquittal-first” jury instruction. The district court concluded,

and we agree, that Defendant's argument has merit under this

Court’s prior holding in Davis v. Mitchell, 318 F.3d 682 (6th

Cir. 2003). In Davis, this Court granted habeas relief to a

death sentenced defendant because it determined that the

acquittal-first jury instruction, combined with a verdict form

that required the signature of all twelve jurors, likely led the

43a

jurors to conclude that mitigation factors also had to be found

by all twelve jurors, thereby precluding an individual juror

from giving effect to mitigation evidence not found by the

others. /d. at 689.

While a trial court’s sentencing phase instructions

may require juror unanimity as to the results of the process of

weighing aggravating circumstances and mitigating factors,

the instructions cannot require unanimity as to the presence

of a mitigating factor. Mills v. Maryland, 486 U.S. 367

(1988); see also Roe v. Baker, 316 F.3d 557, 563-64 (6th Cir.

2002); Williams v. Coyle, 260 F.3d 684, 702 (6th Cir. 2001);

Coe v. Bell, 161 F.3d 320, 337-39 (6th Cir. 1998). Further, an

“acquittal-first’” instruction, which requires the jury to

unanimously reject a death sentence before considering other

sentencing alternatives, is unconstitutional. Mapes v. Coyle,

171 F.3d 408, 416-17 (6th Cir. 1999). In McKoy v. North

Carolina, 494 U.S. 433, 435 (1990), the Supreme Court ruled

unconstitutional any requirement that “prevents the jury from

considering, in deciding whether to impose the death penalty,

any mitigating factor that the jury does not unanimously

find.” Under McKoy, each juror must be permitted to

consider and give effect to mitigating evidence when

deciding the ultimate question whether to vote for a sentence

of death. /d. at 443; Mills, 486 U.S. at 374-75. Aggravating

factors must be found unanimously because they are the

elements of the murder offense that make the defendant death

eligible. Davis, 318 F.3d at 687. “Mitigating factors, on the

other hand, are not viewed as elements of the crime but rather

as evidence relevant to a defendant’s character or record or

other cigcumstances of the offense that might lead a sentencer

to decline to impose the death sentence.” Jd. at 688.

Therefore, a state may not require unanimity in finding

mitigating factors because such a _ requirement

“impermissibly limits jurors’ consideration of mitigating

evidence.” /d. (citing McKoy, 494 U.S. at 444). “In fact, as

Mills and McKoy hold, any requirement that mitigating

44a

factors must be found unanimously is incoherent.” Id. In

other words, “in order for Eighth Amendment law on

mitigating factors to be coherent and capable of judicial

administration without serious confusion, a capital jury must

understand that . . . a finding with respect to a mitigating

factor may be made by one or more members of the jury.” Jd.

(internal citations and quotations omitted).

In light of the case law discussed above, this Court’s

inquiry in the present case is, “whether there is a reasonable

likelihood that the jury has applied the challenged instruction

in a way that violates the Constitution.” Jd. (quoting Jones v.

United States, 527 U.S. 373, 390 (1999); Boyde v. California,

494 U.S. 370, 380 (1990)). We think that the answer is “yes.”

During the mitigation phase, the trial court read the following

instructions to the jury:

[Tjhe procedure which you must follow in

arriving at your verdict in this sentencing

hearing is set forth in Section 2929.03 of the

Revised Code of the state of Ohio... you

must determine whether, beyond a reasonable

doubt, the aggravating circumstances, which

the defendant, Frank G. Spisak, Jr., has been

found guilty of committing in the separate

counts are sufficient to outweigh the

mitigating factors present in this case. If all

twelve members of the jury find by proof

beyond a _ reasonable doubt that the

aggravating circumstances in each separate

count outweighs the mitigating factors, then

you must return that finding to the Court. I

instruct you, as a matter of law, that if you

make such a finding, then you must

recommend to the Court that a sentence of

death be imposed upon the defendant, Frank

G. Spisak, Jr.

45a

A jury recommendation to the Court that the

death penalty be imposed is just that, a

recommendation. The final decision is placed

by law upon the Court.

On the other hand, if after considering all of

the relevant evidence raised at trial, the

evidence and the testimony received at this

hearing and the arguments of counsel, you

find that the State failed to prove beyond a

reasonable doubt that the aggravating

circumstances which the defendant, Frank G.

Spisak, Jr, has been found guilty of

committing in the separate counts outweigh

the mitigating factors, you will then proceed

to determine which of two possible life

imprisonment sentences to recommend to the

Court ....

(J.A. at 3146-47.) These instructions are virtually identical to

those given in Davis, which this Court determined are

“acquittal-first” jury instructions that failed to instruct the

jury “that it need not be unanimous in rejecting the death

penalty.” Davis, 318 F.3d at 689. The Davis Court found that

not only did these instructions reflect a unanimity

requirement, but the verdict form itself also reflected one, in

that it had a spot for all twelve signatures under a statement

professing that the jury found beyond a reasonable doubt that

the aggravating factors did not outweigh the mitigating

factors. Davis, 318 F.3d at 689.

Similarly, in the present case, the verdict form also

reflected a unanimity requirement for a finding that the

mitigating factors outweighed the aggravating factors. The

trial court told the jury that in order to impose a sentence of

death, all twelve had to sign under the statement on the

verdict form stating that “we the jury, in this case, being duly

impaneled and sworn, do find beyond a reasonable doubt that

46a

the aggravating circumstance . . . was sufficient to outweigh

the mitigating factors . . . we the jury recommend that the

sentence of death be imposed... .” (J.A. at 3149.) The trial

court further explained the method for using the verdict

forms in the following manner:

There are four separate jury forms for counts

five, six and . . . eight. Now, there is also a set

of verdict forms, same count numbers, read

[sic] as follows:

‘We the jury, being duly impaneled and

sworn, do find that the aggravating

circumstances which the defendant, Frank G.

Spisak, Jr., was found guilty of committing

are not sufficient to outweigh the mitigating

factors present in this case.

We the jury recommend that the defendant

Frank G. Spisak be sentenced to life

imprisonment with parol eligibility after

serving’ — there is an asterisk for a spot on the

verdict form for you to fill in either 20 or 30

years of imprisonment. And again, all twelve

of you must sign whatever verdict it is you

arrive at [sic] must be signed in ink.

(J.A. at 3149.) The instructions as to how to acquit for death

and impose a life sentence did not differ at all from the

instructions as to how to impose death. In explaining the

forms, the trial court indicated that all twelve signatures were

required to impose a sentence of death, and to acquit for

death and impose a life sentence. As we stated in Davis, this

instruction,

combined with the jury verdict form, not only

‘could’ but by its plain language ‘would’ lead

a reasonable juror to conclude that the only

way to get a life verdict is if the jury

47a

unanimously finds that the aggravating

circumstances do not outweigh the mitigating

circumstances, an entirely different instruction

from one that clearly informs the jurors that a

life verdict can be rendered by a jury that has

not first unanimously rejected the death

penalty. Further adding to the confusion, the

jury was never told, either expressly or

impliedly, that individual jurors may consider

mitigating factors in the weighing process

regardless of the lack of agreement with other

jurors as to the presence of that factor.

Davis, 318 F.3d at 689-90.

In conclusion, we find that the silence on the lack of

unatiimity required to find mitigating circumstances, the

improper “acquittal-first” jury instruction, and the misleading

verdict form and instruction as to how to use the verdict

form, would have led a jury to apply an unconstitutional

unanimity standard at all stages of the deliberative process.

See id. at 690.

TV. Clemons Violation

Defendant next argues that the trial court improperly

instructed the jury on multiple aggravating circumstances for

each aggravated murder charge. While we agree with

Defendant that the jury was impropez'y instructed, the error

was later remedied by the Ohio Supreine Court.

In Clemons v. Mississippi, 494 U.S. 738, 741 (1990),

the Supreme Court held that the “[f]ederal Constitution does

not prevent 2 state appellate court from upholding a death

sentence that is based in part on an invalid or improperly

defined aggravating circumstance either by reweighing of the

aggravating and mitigating evidence or by harmless-error

review.” According to the Court,

48a

Nothing in the Sixth Amendment as construed

by our prior decisions indicates that a

defendant’s right to a jury trial would be

infringed where an appellate court invalidates

one of two aggravating circumstances found

by the jury, but affirms the death sentence

after itself finding that the one or more

remaining aggravating factors outweigh the

mitigating evidence.

Id. at 745. “We see no reason to believe that careful appellate

weighing of aggravating . . . circumstances in cases such as

this would not produce ‘measured consistent application’ of

the death penalty or in any way be unfair to the defendant.”

Id. at 748. During the reweighing process, the state appellate

court may not automatically affirm the defendant’s death

sentence. Jd. at 752. Rather, the court must give the

defendant “an individualized and reliable sentencing

determination based on the defendant’s circumstances, his

background, and the crime.” /d. at 749. Recently, in Brown v.

Sanders, 126 S.Ct. 884, 892 (2006), the Supreme Court

announced the new rule that:

An invalidated sentencing factor (whether an

eligibility factor or not) will render the

sentence unconstitutional by reason of its

adding an improper element to the aggravation

scale in the weighing process unless one of

the other sentencing factors enables the

sentencer to give aggravating weight to the

same facts and circumstances.

The Court’s concern in Brown was “the skewing that could

result from the jury’s considering as aggravation properly

admitted evidence that should not have been weighed in

favor of the death penalty,” but “such skewing will occur,

and give rise to constitutional error, only where the jury

could not have given aggravating weight to the same facts

49a

and circumstances under the rubric of some other, valid

sentencing factor.” Jd. (emphasis in original).

Defendant was indicted on four separate counts of

aggravated murder, with a total of nineteen specifications. On

appeal, the Eighth District Court of Appeals determined that

Defendant was improperly convicted of two counts of

aggravated murder for the death of Timothy Sheehan, stating

that:

The appellant was indicted on four counts of

aggravated murder for the murders of three

people. Two counts of aggravated murder, the

fifth and sixth counts of the indictment, were

for the murder of one individual, Timothy

Sheehan. The appellant was subsequently

convicted for and sentenced on all four counts

of aggravated murder . . . Accordingly while it

was proper for the appellant to have been

indicted on two separate counts of aggravated

murder for the murder of Timothy Sheehan he

could only be convicted on one of those

counts.

Spisak, 1984 WL 13992, at *7. The Eighth District Court of

Appeals thus vacated Defendant’s conviction on the fifth

count of aggravated murder, relating to Sheehan’s death, as

well as the specifications attached thereto. Jd. The court of

appeals then reweighed the aggravating and mitigating

circumstances as they related to the remaining counts and

specifications, and upheld the convictions and sentences on

those counts. Jd. at *8. Subsequently, the Ohio Supreme

Court noted that the trial court had also failed to merge

certain specifications, and held the following:

Proceeding to our independent weighing of

the aggravating circumstances and mitigating

factors presented herein, we note that

appellant’s three aggravated murder

50a

convictions specify fifteen separate

aggravating circumstances under RC.

2929.04. However, as pointed out by appellant

in his first proposition of law, for purposes of

sentencing the doctrine of merger herein

applies. Each aggravated murder count should

thus contain only one specification that

appellant’s acts were part of a course of

conduct involving the purposeful killing of or

attempt to kill two or more persons. R.C.

2929.04(A)(S). Similarly, specifications

pursuant to R.C. 2929.04(A)(3) (escaping

detection, apprehension, trial or punishment)

: and R.C. 2929.04(A)(7) (felony murder) are

duplicative of and thus merge with R.C.

2929.04(A)(S), since these aggravating

circumstances arise from the same indivisible

course of conduct. Although the court of

appeals did not apply the merger doctrine

below, we have determined that the jury's

consideration of the duplicative aggravating

circumstances during sentencing did not affect

their verdict. Furthermore, we have

independently determined that the remaining

aggravating circumstances outweigh the

mitigating factors beyond a reasonable doubt.

Spisak, 521 N.E.2d at 803.

After reviewing the state court proceedings, the

district court held, and we agree, that the Ohio Supreme

Court did not unreasonably apply federal law in

independently reweighing the aggravating and mitigating

factors, and upholding Defendant's convictions and sentence.

While it is undisputed that the trial court committed error in

not merging the death penalty specifications, the Ohio

Sla

Supreme Court’s independent reweighing was sufficient to

remedy any error.

It is also clear that after merging the duplicative

aggravating circumstances, the Ohio Supreme Court gave the

required individualized sentencing determination, see

Clemons, 494 U.S. at 749, in reweighing Defendant’s death

sentence:

Of the mitigating factors specified in R.C.

2929.04(b) appellant relied solely on his

allegations that he lacked, due to a mental

disease or defect, substantial capacity to

appreciate the criminality of his conduct or to

conform his conduct to the law at the time of

committing the offense. Although there was

testimony that appellant had characteristics of

borderline and schizotypal personality

disorders, the bulk of the testimony, from both

defense and rebuttal expert witnesses,

established that appellant was sane at the time

of the acts, that he could have refrained from

committing them, had he so chosen, and that

he understood the nature of his acts but

elected to carry them out anyway.

Appellant admitted to being the principal

offender in three murders and two attempted

murders. He did not have a significant history

of prior criminal convictions or juvenile

adjudications, nor was his age a factor. He

was not under duress, coercion or strong

provocation at the time of the crimes. His

victims neither facilitated nor induced the

offense. Nothing in the nature § and

circumstances of these deliberate murders

tempers the gravity of the offenses. We concur

with the jury and lower courts that the balance

52a

of these factors lies heavily, and beyond

reasonable doubts, on the side of the

aggravating circumstances of which the

appellant was convicted.

State v. Spisak, 521 N.E.2d at 803-04 (internal citations

omitted). Unlike the case in Clemons, this Court can clearly

discern that the Ohio Supreme Court did in fact employ the

proper method of reweighing the aggravating and mitigating

factors before upholding the death sentence. Clemons, 494

U.S. at 741.

Moreover, under the recently-decided Brown

decision, which states that the sentence is unconstitutional

unless the jury could give aggravating weight to the same

facts and circumstances under one of the other sentencing

factors, the reweighing was still sufficient to cure the error

where the Ohio Supreme Court merely invalidated some of

the specifications because they were duplicative of other

specifications that were also considered by the jury. Brown,

126 S.Ct. at 892. The jury was able to give aggravating

weight to the same facts and circumstances in the remaining

murder convictions and death penalty specifications that

were properly submitted to the jury.

We thus find that any error related the weighing of

aggravating and mitigating factors during the sentencing

phase of Defendant’s trial was cured by the Ohio Supreme

Court’s reweighing of the factors, and therefore the Ohio

Supreme Court did not violate clearly established federal law

in upholding Defendant’s death sentence.

V. Prosecutorial Misconduct

We lastly turn to Defendant’s prosecutorial

misconduct claim. “In deciding whether prosecutorial

misconduct mandates that habeas relief be granted, the Court

must apply the harmless error standard.” Macias v.

Makowski, 291 F.3d 447, 451 (6th Cir. 2002) (quoting

53a

Pritchett v. Pitcker, 117 F.3d 959, 964 (6th Cir. 1997)). The

relevant question is whether the prosecutor’s remarks “so

infected the trial with unfairness as to make the resulting

conviction a denial of due process.” Jd. (quoting Donnelly v.

DeChristoforo, 416 U.S. 637, 643 (1974)). Post-AEDPA, this

Court has adopted a two-step test to determine whether

prosecutorial misconduct violates a Defendant’s due process

rights. First, we consider whether the prosecutor’s remarks

were improper. Jd. at 452. If we determine that the remarks

were improper, then we must “apply the four-factor test set

forth in United States v. Carroll, 26 F.3d 1380, 1385 (6th

Cir. 1994), to determine ‘whether the impropriety was

flagrant’ and thus violated the defendant’s due process

rights.” Jd. (quoting United States v. Carter, 236 F.3d 777,

783 (6th Cir. 2001)). The four factors to consider are: “(1)

whether the conduct and remarks of the prosecutor tended to

mislead the jury or prejudice the defendant; (2) whether the

conduct or remarks were isolated or extensive; (3) whether

the remarks were deliberately or accidentally made; (4)

whether the evidence against the defendant was strong.” Jd.

We must first consider Defendant’s allegations of

prosecutorial misconduct and determine whether the

statements were improper before proceeding to an analysis

under the four factors. The district court found that while

some of the prosecutor’s remarks may have been “repugnant,

they did not deny Spisak due process or inject any

fundamental unfairness into the trial.” (J.A. at 238.) Overail,

we agree.

A. Beveriy Murphy as a Rebuttal Witness

First of all, we do not believe that it was improper for

the prosecution to call Murphy as a rebuttal witness, but even

if it was, none of the testimony elicited from Murphy was at

all prejudicial to Defendant. The prosecution called Murphy,

over the objection of the defense, to rebut the testimony of

Dr. Bertschinger. The district court ruled that Murphy’s

54a

testimony did not rebut Bertschinger’s testimony and that the

“trial court erred when it permitted Murphy to testify,” but

that Defendant was not prejudiced by anything that Murphy

said. (J.A. at 236.) We disagree with the district court’s

conclusion that Murphy’s testimony did not constitute

rebuttal testimony.

The trial court allowed Murphy to be cailed as a

rebuttal witness over the defense’s objection because the

prosecution ‘ad asked Bertschinger questions about the

relationship that Defendant, a self-professed Nazi supporter

and white supremacist, claims to have had with Murphy, an

African-American prostitute. Bertschinger opined that

Defendant had a romantic relationship with Murphy, which

reflected his personality disorder, given his alleged hatred of

African-Americans. In response, the prosecution called

Murphy who contradicted this characterization of her

relationship with Defendant, testifying that the relationship

was nothing more than a business relationship. Murphy

testified extensively about the frequency and manner in

which Defendant compensated her for sexual services, which

included giving her guns. This testimony was appropriate to

rebut Bertschinger’s contention that Defendant had a

romantic relationship with Murphy.

_____ Regardless, however, of whether the testimony was in

fact rebuttal, we agree with the district court that even if the

testimony was inappropriate, it was not, under the first of the

four Carter factors, prejudicial to Defendant. Murphy did not

reveal anything new that the jury had not heard before, and

her testimony was not inflammatory or damaging to

Defendant. She merely recounted facts that the jury had

already heard, and offered her perspective that she and

Defendant’s relationship was nothing more than a business

arrangement. Further, much of the testimony that Defendant

challenges, was actually given in response to defense

counsel’s questioning on cross-examination. We therefore

4

55a

conclude that Murphy’s testimony did not render

Defendant’s trial fundamentally unfair.

B. Improper Remarks During The Mitigation

Phase

Defendant next claims that the prosecutor made

improper comments during its cross-examination of

Bertschinger during the mitigation phase of the trial. Again,

we find this claim to be without merit. First Defendant argues

that the prosecutor improperly described him as a whore, but

the record reveals that while the prosecutor did refer to

Defendant’s homosexual prostitution, he did not use the term

whore. Moreover, these remarks were in reference to

Bertschinger’s testimony that Defendant admitted engaging

in homosexual prostitution, and that these activities

contributed to the dissolution of Defendant’s marriage. These

comments were therefore not improper.

It was also not improper for the prosecution to make

reference to Dr. Markey’s stricken testimony where defense

counsel “opened the door” to this questioning by addressing

Markey’s report on direct examination. Defendant also

claims that the prosecution improperly stated that Defendant

“wanted to be a pimp,” but the record reveals that the

question was posed to Bertschinger as part of a discussion of

Defendant’s tendency to date black prostitutes and have them

live in his home. Again, we do not believe that the remark

was improper since it was only a passing reference and was

posed as a legitimate question; but even if it was improper,

we still find that any potential prejudice would have been

minimal and would not have impacted the fundamental

fairness of the trial.

We also do not believe that Defendant was prejudiced

by any of the prosecutor’s remarks during the prosecution’s

closing arguments of the mitigation phase of the trial. The

prosecutor’s argument was devoted to demonstrating that

Defendant’s personality disorder did not outweigh his

56a

culpability for the murders he had committed, and that

Defendant’s actions were voluntary and he knew what he

was doing when he committed the crimes. Out of thirty-three

pages of argument, Defendant points to a few isolated

comments to try to establish that his due process rights were

violated. Defendant points out that the prosecution accused

him of fabricating testimony; of being unwilling to support

his wife; characterized Defendant as having no remorse;

characterized the expert testimony as insulting and being

mumbo jumbo; likened Defendant to a rat who hides in the

basement; commented that Defendant would not have pled

not guilty by reason of insanity if two of the witnesses had

not survived; and asked the jury “how many people does he

have to kill before we say enough is enough.” None of these

minimal, isolated remarks, even if improper, prejudiced

Defendant or rendered his trial fundamentally unfair.

C. Cross-Examination of Defendant

Lastly, Defendant argues that the prosecution

committed misconduct during his cross-examination by

questioning Defendant about his bizarre political and

religious beliefs, his receipt of public assistance, his failure to

support his family, his homosexuality, his activities as a male

prostitute, and treatment of his wife. Again, we find this

argument to be without merit where the record reveals that

the majority of these issues were in fact raised by

Defendant’s trial counsel during direct examination. Trial

counsel’s direct examination of Defendant focused on

Defendant’s political and religious beliefs, associations with

Nazis, hatred of blacks and Jews, and how those hatreds

drove him to the killings. Defendant also testified on direct

about his homosexual activity, cross-dressing, and

consideration of a sex change operation. Defendant further

testified that he could not recall the reasons for his divorce,

but that he continued to support his wife and daughter

57a

afterward. As these matters were addressed on direct, they

were the proper subject of cross-examination.

We therefore conclude that the district court properly

found that there was no prosecutorial misconduct that denied

Defendant due process or injected any fundamental

unfairness into Defendant’s trial.

CONCLUSION

For the foregoing reasons, we AFFIRM in part and

REVERSE in part. We AFFIRM the judgment of the

district court as it relates to issues I, IV, and V, but we

REVERSE the district court’s judgment as to issues II and

Ill, and REMAND with instructions to grant the Writ as to

issues II and III. Accordingly, we deny habeas relief with

respect to the determination of Defendant’s guilt, but remand

for a new mitigation phase trial.

CONCURRING IN PART, DISSENTING IN PART

KAREN NELSON MOORE, Circuit Judge,

concurring in part and dissenting in part. I concur in the

majority opinion, except for its treatment of Issue 1, Spisak’s

insanity defense. I believe that the trial court’s exclusion of

expert testimony and evidence regarding Spisak’s insanity

defense and the trial court’s refusal to submit the insanity

defense to the jury violated Spisak’s rights to a fair trial and

to present a complete defense, rights long recognized by the

Supreme Court. Therefore I would remand this case to the

district court with instructions to grant a conditional writ of

habeas corpus, giving the State of Ohio 180 days to retry

Spisak or release him from custody.

Spisak claims that he was legally insane because of a

severe personality disorder (which manifested itself with the

bizarre and seemingly inconsistent beliefs and behaviors

58a

including racial and ethnic hatred and sexual deviance) and

that he was entitled to present evidence of his insanity

cumulatively, rather than needing to produce a singular

expert who could testify to both prongs of the Ohio insanity

standard.

In order to succeed on his affirmative insanity

defense, Spisak needed to “establish by a preponderance of

the evidence that disease or other defect of his mind had so

impaired his reason that, at the time of the criminal act with

which he is charged, either he did not know that such act was

wrong or he did not have the ability to refrain from doing that

act.” State v. Staten, 247 N.E.2d 293, 299 (Ohio 1969)

(footnote omitted). When insanity is pleaded as a defense,

and the evidence is such that “reasonable minds may reach

.different conclusions upon the question of insanity, such

question of fact is for the jury.” State v. Gaines, 318 N.E.2d

857, 864 (Ohio Ct. App. 1974) (internal quotation marks

omitted). “If, however, after giving the evidence the most

favorable interpretation in favor of the defendant, reasonable

minds can come to but one conclusion and that conclusion

{is} adverse to defendant, it is the court’s duty to rule on the

issue as a matter of law.” /d. (internal quotation marks

omitted).

Spisak argues that “although none of the defense

experts were prepared to specifically conclude that Spisak

was legally insane, their testimony was being presented as

relevant and material to specific elements of the insanity

defense, from which the defense thereby hoped to meet the

burden of proof supporting an insanity defense.”] Appellant

Br. at 20. Spisak is correct that cumulatively, his psychiatric

experts did provide support for the necessary insanity

elements. Ia his report on the issue of sanity at the time of the

act, Dr. Berischinger stated that it was his opinion that “Mr.

Spisak’s personality deficits are of such severity that he can

be considered to have a mental illness or mental disease.”

59a

J.A. at 3217 (Bertschinger Rep. at 2). Dr. Markey’s report

and proffered testimony supported Spisak’s claim that he was

unable to refrain from committing the criminal acts. J.A. at

3192 (Markey Rep. at 3) (“I believe Spisak is in a latent

psychosis (grandiose, paranoid, lacking in finer feelings, etc.)

and that he was unable to control his impulses to assault,

though he was at the time, aware of it’s being socially

wrong.”); J.A. at 2082 (“I would say that [Spisak] was aware

[that his actions broke the law], and he was unable to change

his actions even though he knew that he was doing

something that was against the law.”); J.A. at 2083 (agreeing

that Spisak’s personality disorder was of such gravity that he

would not be able to conform his conduct to the requirements

of the law). Markey wavered on cross examination on his

opinion that Spisak could not control his actions, but then on

redirect restated that he believed Spisak was unable to

control his impulse to assault. J.A. at 2093-97 (Trial Tr. at

1992-96).

Under the Gaines standard above, when giving

Spisak’s expert evidence the interpretation most favorable to

Spisak, I conclude that reasonable minds could reach

different conclusions about his sanity. Therefore, the issue of

Spisak’s insanity should have been submitted to the jury to

allow it to consider his insanity defense. See Mathews v.

United States, 485 U.S. 58, 63 (1988) (“As a general

proposition a defendant is entitled to an instruction as to any

recognized defense for which there exists evidence sufficient

for a reasonable jury to find in his favor.”’). I also believe that

Spisak’s argument that the Supreme Court of Ohio’s

perfunctory dismissal of this claim was an unreasonable

application of federal constitutional law has merit. The

Supreme Court has recognized the essential nature of expert

testimony in presenting an insanity defense, holding that due

process requires that indigent defendants be afforded the

assistance of a psychiatrist in preparing a defense. Ake v.

Oklahoma, 470 U.S. 68, 81 (1985) (stating that “the

60a

testimony of psychiatrists can be crucial and ‘a virtual

necessity if an insanity plea is to have any chance of

success.””) (footnote omitted). Furthermore, while most

violations of state law are not sufficient to justify habeas

relief, “{[w]hen an evidentiary ruling is so egregious that it

results in a denial of fundamental fairness, it may violate due

process and thus warrant habeas relief.” Bugh v. Mitchell,

329 F.3d 496, 512 (6th Cir. 2003). Adverse evidentiary

rulings by state courts do not harm a defendant’s due process

rights unless they “offend[ ] some principle of justice so

rooted in the traditions and conscience of our people as to be

ranked as fundamental.” Montana v. Egelhoff, 518 U.S. 37,

43 (1996) (internal quotation marks omitted). The Supreme

Court has repeatedly held, however, that a criminal

defendant’s right to present a defense, including presenting

witnesses on his behalf, is a fundamental right. See

Washington v. Texas, 388 U.S. 14, 19 (1967) (“Just as an

accused has the right to confront the prosecution’s witnesses

for the purpose of challenging their testimony, he has the

right to present his own witnesses to establish a defense. This

right is a fundamental element of due process of law.’’)

(emphasis added); Calijornia v. Trombetta, 467 U.S. 479,

485 (1984) (“We have long interpreted this standard of

[fundamental] fairness to require that criminal defendants be

afforded a meaningful opportunity to present a complete

defense.”) (emphasis added); Chambers v. Mississippi, 410

U.S. 284, 302 (1973) (“Few rights are more fundamental than

that of an accused to present witnesses in his own defense.”’).

In this case, Spisak argues he was unable to present expert

evidence about his significant mental health problems,

thereby limiting his fundamental nght to present a complete

defense.

In addition, clearly established Supreme Court

precedent holds that a state violates a defendant’s right to a

fair trial when it prevents him from introducing evidence

essential to his defense. Crane v. Kentucky, 476 U.S. 683,

6la

690 (1986) (concluding that the state court’s refusal to allow

the defendant to introduce testimony regarding the

circumstances in which he confessed to the police deprived

him of a fair trial); Chambers, 410 U.S. at 302 (holding that

the state court’s exclusion of evidence critical to defendant’s

defense, coupled with the refusal of the state to let the

defendant cross examine a witness, denied him due process).

In Chambers, the defendant argued that the state court

violated his constitutional rights when it rejected potentially

exculpatory witness testimony because it was hearsay not

meeting any recognized exceptions. The Chambers Court

acknowledged the need for defendants wishing to present

evidence to comply with a state’s “established rules of

procedure and evidence,” and stated that “perhaps no rule of

evidence has been more respected or more frequently applied

in jury trials” than the hearsay rule. Id. at 302. Nevertheless,

because the evidence proffered by the defense “bore

persuasive assurances of trustworthiness” and “also was

critical to [the defendant’s] defense,” the Court concluded

that the defendant’s constitutional rights required its

admission. Jd. The Court stated, “[i]n these circumstances,

where constitutional rights directly affecting the

ascertainment of guilt are implicated, the hearsay rule may

not be applied mechanistically to defeat the ends of justice.”

Id.

In Crane, the Supreme Court also held that state

evidentiary rules must sometimes give way to a defendant’s

constitutional rights. The Court stated that a defendant’s

constitutional right to be heard “is an empty one if the State

were permitted to exclude competent, reliable evidence . . .

when such evidence is central to the defendant’s claim of

innocence.” Crane, 476 U.S. at 690. The Crane Court

recognized the traditional respect afforded to the states in

determining their own criminal trial procedures and rules.

Notwithstanding the Court’s “traditional reluctance to impose

constitutional constraints on ordinary evidentiary rulings by

62a

state trial courts,” the Court held, “we have little trouble

concluding on the facts of this case that the blanket exclusion -

of the proffered testimony about the circumstances of

petitioner’s confession deprived him of a fair trial.” Jd. at

689-90 (emphasis added). The Court stated, the

“Tpljetitioner’s entire defense was that there was no physical

evidence to link him to the crime and that, for a variety of

reasons, his earlier admission of guilt was not to be

believed.” Jd. at 691 (emphasis added). The Court noted that

it was not passing judgment “on the strength or merits of that

defense,” but that it thought “it plain that introducing

evidence of the physical circumstances that yielded the

confession was all but indispensable to any chance of [the

defense] succeeding.” Jd. (emphasis added).

Here, Spisak’s expert evidence (including Markey’s

testimony and the reports prepared by Bertschinger and the

other experts) was as integral to Spisak’s entire defense as

was the hearsay evidence in Chambers and the confession

evidence in Crane. Here the trial court mechanistically

applied the evidentiary relevancy standard, resulting in the

“blanket exclusion of the proffered testimony” of experts

relating to his mental health. Crane, 476 U.S. at 690. Spisak’s

“entire defense” was that he was legally insane and therefore

did not possess the culpability necessary to commit the

murders, and it is “plain” that his ability to introduce expert

evidence of his mental problems was “indispensable” if his

insanity defense was going to have any chance of succeeding.

Id. at 691. The proffered expert evidence also appears to

meet the levels of reliability that the Court demanded in

Chambers and Crane. Spisak’s expert testimony came from

“competent, reliable” psychiatric and psychological experts

repeatedly relied upon by the Ohio courts, Crane, 476 U.S. at

690, and it “bore persuasive assurances of trustworthiness.”

Chambers, 476 U.S. at 302. The evidence would have been

subject to cross examination by prosecutors, allowing them

ample opportunity to point out the numerous conclusions

63a

contrary to Spisak’s insanity defense. Yet without this

evidence, the question of Spisak’s sanity never even reached

the jury. In light of these Supreme Court precedents holding

that a defendant must be allowed to present evidence critical

to his defense, I would conclude that the Supreme Court of

Ohio’s summary rejection of Spisak’s claim was an

unreasonable application of clearly established Supreme

Court precedent. I would remand this case to the district

court with instructions to grant a conditional writ of habeas

corpus, giving the State of Ohio 180 days to retry Spisak or

release him from custody.

64a

APPENDIX B

No. 03-4034

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

FRANK G. SPISAK, JR., Petitioner-Appellant

v.

BETTY MITCHELL, WARDEN, Respondent-Appellee.

ORDER

BEFORE: MARTIN, MOORE, and CLAY, Circuit Judges.

The court having received a petition for rehearing en

bane, and the petition having been circulated not only to the

original panel members but also to all other active judges of

this court, and no judge of this court having requested a vote

on the suggestion for rehearing en bane, the petition for

rehearing has been referred to the original panel. The panel

has further reviewed the petition for rehearing and concludes

that the issues raised inthe petition were fully considered

upon the original submission and decision of the case.

Accordingly, the petition is denied.

ENTERED BY ORDER OF THE COURT

Leonard Green, Clerk

65a

APPENDIX C

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF OHIO

EASTERN DIVISION

FRANK G. SPISAK, JR.., ’

Petitioner,

Vv.

RALPH COYLE, WARDEN,

Respondent

Case No.: 1 :95 CV 2675

JUDGE SOLOMON OLIVER, JR.

MEMORANDUM OF OPINION AND GRDER

Frank G. Spisak, (“Spisak” or “Petitioner”) petitions

this court for a writ of habeas corpus pursuant to 28 U.S.C. §

2254. Spisak submitted a Petition on April 9, 1997 (Doc. No.

19). Spisak challenges the constitutional sufficiency of his

jury convictions for four counts of aggravated murder with

nineteen death penalty specifications, three counts of

aggravated robbery, and one count of attempted murder.

Spisak also challenges the trial court’s imposition of the

death penalty for his murder convictions. The Respondent,

represented by the Ohio Attorney General, filed a Return of

Writ (Doc. No. 35), to which Spisak filed a Traverse on

September 24, 1997 (Doc. No. 79).

For the reasons discussed below, the court denies

Spisak’s Petition for writ of habeas corpus.

66a

I, PROCEDURAL HISTORY

On March 29, 1983, the Cuyahoga County Grand

Jury indicted Spisak on four counts of aggravated murder in

violation of Ohio Rev. Code § 2903.01; three counts of

aggravated robbery in violation of Ohio Rev. Code §

2911.01; one count of attempted murder in violation of Ohio

Rev. Code § .2903.02, and one count of receiving stolen

property in violation of Ohio Rev. Code § 2913.51. Pursuant

to Ohio Rev. Code § 2929.04(A), the aggravated murder

counts contained nineteen death penalty specifications.

Spisak entered a plea of not guilty by reason of

insanity as to all counts on April 8, 1983. Prior to trial, the

court ordered Spisak to be evaluated by Dr. Philip Resnick, a

psychiatrist, pursuant to Ohio Rev. Code § 2945.39. Upon

Spisak’s request, the court ordered he also be evaluated by

Dr. Sandra McPherson, Dr. Kurt Bertschinger, Dr. S.M.

Samy and Dr. Oscar Markey. Thereafter, the court held a

hearing to determine whether Spisak was competent to stand

trial. Dr. Resnick determined that Spisak was competent to

stand trial. The court agreed with Dr. Resnick’s findings.

Spisak also moved to suppress evidence seized at the

search of his home on September 4, 1982. The court held a

hearing on the motion but subsequently denied it, finding that

Spisak’s Fourth and Fourteenth Amendment rights were not

violated during the police search and seizure of guns found in

Spisak’s apartment.

Following trial, a jury convicted Spisak on July 27,

1983, of all counts and specifications, with the exception of

one of the aggravated robbery counts. After the mitigation

phase of the trial, the jury determined the aggravating

67a

circumstances outweighed the mitigating factors and

recommended a sentence of death. The trial court accepted

the jury’s recommendation and sentenced Petitioner to death

for each charge of aggravated murder on August 10, 1983. In

addition, the trial court sentenced Spisak to terms of seven to

twenty-five years on each conviction of attempted murder

and aggravated robbery.

Spisak timely appealed his convictions to the Ohio

Court of Appeals for the Eighth District.’ The Court of

Appeals affirmed the conviction after vacating the

aggravated murder conviction on the fifth count of the

indictment as well as the five specifications attached thereto.

State v. Spisak, Nos. 47458, 47459, 1984 WL 13992 (Ohio

Ct. App. July 19, 1984). On September 12, 1984, Spisak

filed a timely Notice of Appeal to the Ohio Supreme Court.

' Originally, Spisak’s appellate counsel raised one claim on appeal:

“Whether or not the trial court erred by ruling that before an expert doctor

could testify before the jury that the expert doctor must have found the

defendant-appellant to be ‘legally insane.’” Petition at 8. Spisak’s initial

appellate counsel were the same counsel who represented him during

trial.

? The Grand Jury had indicted Spisak on two counts of aggravated murder

for the murder of Timothy Sheehan pursuant to Ohio Rev. Code §

2941.25(A) which reads:

(A) Where the same conduct by defendant can be

construed to constitute two or more allied offenses of

similar import, the indictment or information may

contain counts for all such offenses, but the defendant

may be convicted of only one.

Consequently, the Court of Appeals determined that although Spisak was

properly indicted for two counts of aggravated murder in connection with

Sheehan’s death, he could only be convicted of one of those counts. The

Court of Appeals, thus, vacated one of the convictions. /d. at *7.

68a

Thereafter, Spisak received new counsel from the

Ohio Public Defender Commission, who filed a motion to

remand the case based upon previous counsel’s failure to

have the entire trial transcript submitted to the appellate court

as required by Ohio Rev. Code § 2929.03(G). The Ohio

Supreme Court granted the motion and ordered the Court of

Appeals to undertake a second review after receiving the

supplemented record. Spisak then moved the Court of

Appeals to permit him to raise additional assignments of

error. The court denied the motion and reaffirmed Spisak’s

convictions and death sentence. Spisak again filed a motion

to remand with the Ohio Supreme Court, requesting that

court to instruct the Court of Appeals to permit Spisak’s new

counsel to raise additional issues. On November 6, 1985, the

Ohio Supreme Court granted the motion “with specific

instructions to the court that counsel for Appellant be

permitted to participate in the review process as required by

the Sixth and Fourteenth Amendments of the United States

Constitution.” Petition at 11. After accepting a new twenty-

page brief and holding two hearings in which Spisak’s new

counsel participated, the Court of Appeals again affirmed

Spisak’s convictions. State v. Spisak, No. 82884, slip op.

(Ohio Ct. App. May 27, 1986). On July 2 I, 1986, Spisak

moved the Ohio Supreme Court for a third remand, alleging

that the Court of Appeals failed to follow the Supreme

Court’s November 6, 1985 Order. The Supreme Court,

however, denied the motion.

On November 24, 1986, Spisak filed a merit brief

with the Ohio Supreme Court raising sixty-four propositions

of law.’ The Ohio Supreme Court affirmed Spisak’s

* In his brief to the Ohio Supreme Court, Petitioner raised the following

propositions of law:

|. Instructing the jury in the penalty phase on nineteen

separate aggravating circumstances to four aggravated

69a

murder charges where there were but three killings

destroys the reliability of the sentencing procedure in

violation of the Eighth and Fourteenth Amendments to

the United States Constitution and Sections 2, 9,10, and

16, Article I, of the Ohio Constitution.

2. The Fifth, Sixth, and Fourteenth Amendments to the

United States Constitution and Sections 10 and 16,

Article I, of the Ohio Constitution guarantee the

accused the rights to cross-examine witnesses, have

testimony adduced only when under oath, and to not be

subjected to prosecutorial misconduct. The prosecutor’s

repeated testimony which was not subject to cross-

examination nor under oath concerning appellant’s

sexual preferences, political beliefs and uncharged acts

of misconduct violates these constitutional guarantees.

3. The Fifth, Sixth and Fourteenth Amendments to the

United States Constitution; Article I, Sections 10 and

16 of the Ohio Constitution guarantee an accused the

effective assistance of counsel at trial. The assistance of

counsel appellant received at the guilt phase of trial

failed to reach the minimum standard as established by

the Ohio and federal Constitution.

4. The Fifth, Sixth, Eighth and Fourteenth Amendments

to the United States Constitution; Article I, Sections 2,

9, 10 and 16 of the Ohio Constitution; and Ohio

Revised Code Section 2945.1 1 guarantee the accused a

jury charge that instructs the jury as to the defense

theory of the case. The failure of the trial court to

instruct the jury as to the insanity defense violated these

constitutional and statutory protections.

5. The trial judge denied appellant’s Fourteenth

Amendment right to due process, his Fifth Amendment

right to a fair trial and his Sixth Aniendment night to

have compulsory process for obtaining witnesses in his

favor by usurping the jury’s fact-finding function and

excluding all expert evidence of insanity.

6. The Fifth, Sixth and Fourteenth Amendments to the

United States Constitution; Ohio Evidence Rule 70 I;

70a

and Article I, Sections 10 and 16 of the Ohio

Constitution guarantee the accused a right to a fair trial

and the right to adduce testimony on his own behalf.

The trial court’s refusal to permit lay testimony as to

appellant's insanity denied appellant these rights.

7. The Fifth, Sixth and Fourteenth Amendments to the

United States Constitution and Article 1, Sections 10

and 16 of the Ohio Constitution guarantee the accused a

right to a fair trial at which he can testify on his own

behalf. The trial couil’s refusal to permit appellant’s

testimony as to his delusional beliefs concerning God

and his grandiose thoughts about his guns denied

appellant these rights.

8. The Fifth and Fourteenth Amendments of the United

States Constitution; Article I, Section 16 of the Ohio

Constitution, and Ohio Revised Code Section 2940.02

guarantee an accused that a trial will be conducted in a

fair manner in which the trial court bases its rulings

upon the evidence and does [sic] comment to the jury

concerning the credibility of the evidence. The trial

court’s exclusion and striking, in the presence of the

jury of the expert’s testimony which it had previously

ruled admissible only after a lengthy voir dire, violated

these constitutional guarantees.

9. The Fourteenth Amendment to the United States

Constitution; Article I, Section 16 of the Ohio

Constitution; and Ohio Revised Code Section 2929.05

require that the trial court keep a complete and full

transcript of all proceedings occurring during the trial

court. The trial court’s failure to maintain such a record

during the voir dire and pretrial motions denied

appellant his rights as guaranteed by the United States

and Ohio Constitutions and Ohio Revised Code.

10. The Fourteenth Amendment to the United States

Constitution and Article I, Section 16 of the Ohio

Constitution guarantee an accused the right of due

process of law. The trial court erred when it placed

upon appellant the burden of proof and the burden of

going forward on appeliant’s motion to suppress

Tla

evidence, which denied appellant his constitutional

guarantees.

11. The Fourth Amendment to the United States

Constitution made applicable to the states by the

Fourteenth Amendment; and Article I, Section 14 of the

Ohio Constitution prohibits the police from making a

warrant less and non-consensual entry into a suspect’s

home. The trial court’s failure to suppress evidence

obtained in a warrant less and non-consensual entry

into appellant’s home denied appellant his rights

guaranteed by the United States and Ohio

Constitutions.

12. The Fourth Amendment to the United States

Constitution, made applicable to the states by the

Fourteenth Amendment; and Article I, Section 14 of the

Ohio Constitution prohibit the police from making a

warrantless and non-consensual entry into 2 third

party’s home without first obtaining a search warrant.

The testimony and exhibits received into evidence by

the court which had been obtained by the illegal entry

into Ronald Reddish’s house denied appellant his rights

as guaranteed by the United Stated and Ohio

Constitutions.

13. The Fourth Amendment to the United States

Constitution and Article I, Section 14 of the Ohio

Constitution prohibit the police from making a

warrantless and non-consensual search and seizure of

an automobile. The evidence obtained from the

warrantless search and seizure of Ronald Reddish’s

automobile denied appellant his nghts as guaranteed by

the United States and Ohio Constitutions.

14. The Eighth and Fourteenth Amendments to the

United States Constitution and Sections 19 and 16,

Article I, of the Ohio Constitution protect an accused

against the infliction of cruel and unusual punishment

and guarantee an accused due process of law. The trial

court’s and prosecutor’s repeated comments to the jury

that the jury’s death penalty verdict was only a

recommendation and not binding upon the trial judge

72a

violated appellant’s rights as guaranteed by the United

States and Ohio Constitutions.

15. The Sixth and Fourteenth Amendments to the

United States Constitution; Article I, Sections 10 and

16 of the Ohio Constitution and Section 2945.25(C) of

the Ohio Revised Code guarantee an accused a fair trial

and impartial jury. The trial court’s exclusion of

potential juror Thomas J. Schmitt, over defense

counsel's objection denied appellant these

constitutional guarantees.

16. The Sixth and Fourteenth Amendments to the

United States Constitution and Article I, Section 10 of

the Ohio Constitution require that jurors decide the case

based upon evidence and testimony received inside the

courtroom and not from conversation occurring outside

the court room. The trial court’s failure to sequester and

admonish the potential jurors in the present case denied

appellant his rights as guaranteed by the United States

and Ohio Constitutions.

17. The Fourteenth Amendment to the United States

Constitution and Article I, Sections 10 and 16 of the

Ohio Constitution require the presence of the defendant

at all stages of the tral absent compelling

circumstances. The tal court’s failure to have

appellant present for the excusal for cause of jurors

violated such rights.

18. The Fifth, Sixth and Fourteenth Amendments to the

United States Constitution and Article I, Sections 5, 10

and 16 of the Ohio Constitution guarantee an accused a

right to a fair and impartial trial by jury. The ineffective

assistance of counsel which appellant received during

the jury selection process resulted in a denial of

appellant’s constitutional nght to a fair and impartial

trial by jury.

19. The Eighth and Fourteenth Amendment of the

United States Constitution and Article I, Sections 9 and

16 of the Ohio Constitution require that the jury impose

the death penalty only when it is the appropriate

| a

73a

penalty. The prosecutor’s comments during voir dire

that the jury must retum such penalty when the

aggravating circumstances outweighed the mitigating

circumstances beyond a reasonable doubt violated such

rights.

20. The Fourteenth Amendment to the United States

Constitution; Article I,- Section 16 of the Ohio

Constitution; and Ohio Revised Code Section 2929.05

require that the trial court keep a complete and full

transcript of all proceedings occurring in the trial court.

The trial court’s failure to maintain such a record of the

jury view denied appellant his rights as guaranteed by

the United States and Ohio Constitutions and Ohio

Revised Code.

21. The Fifth, Sixth and Fourteenth Amendments to the

United States Constitution and Article I, Section 16 of

the Ohio Constitution guarantee a defendant a right to a

fair trial. The trial court abused its discretion and

denied appeliant a fair trial by allowing the appellant to

appear before the jury in shackles.

22. The Fifth and Fourteenth Amendments to the

United States Constitution and Article I, Section 10 of

the Ohio Constitution guarantee an accused a right to a

fair trial. The trial court denied appellant his fair trial

when he failed to give the jury an instruction on

shackling.

23. The Fourteenth Amendment to the United States

Constitution; Section 16, Article I, of the Ohio

Constitution; and R.C. 2929.05 require the trial court to

keep a complete record of all proceedings and its

failure to maintain such a record during the guilt phase

denied appellant his rights as guaranteed by the United

States and Ohio Constitutions and Ohio Revised Code.

.24. The Fifth, Sixth and Fourteenth Amendments to the

United States Constitution and Article I, Sections IO

and 16 of the Ohio Constitution guarantee an accused a

fair trial whose outcome will be as free as possible from

bias and sympathy. The state of Ohio, by calling Clem

74a

H. Sharkey, a friend and relative of the victim,

Reverend Horace Rickerson, interjected sympathy and

passion into the judicial process while contributing

nothing to the matters in issue and, therefore, violated

the above cited constitutional principles.

25. The Fifth, Sixth, and Fourteenth Amendments to

the United States Constitution and Article i, Section 10

and 16 of the Ohio Constitution guarantee an accused a

fair trial whose outcome will be as free as possible from

bias and sympathy. The state of Ohio, by adducing

testimony from the victim John Hardaway concerning

his background and the extreme pain that the shooting

caused him interjected sympathy and passion into the

judicial process, thereby violating the above cited

constitutional principles.

26. The Fifth, Eighth and Fourteenth Amendments to

the United States Constitution and Article I, Section 10

and 16 of the Ohio Constitution guarantee an accused a

fair trial whose outcome will be as free as possible from

bias and sympathy. The State of Ohio, by calling

Kathleen Sheehan, the wife of the victim, Timothy

Sheehan, interjected sympathy and passion into the

judicial process while contributing nothing to ihe

matters in issue and, therefore, violated the above cited

constitutional principles.

27. The Fifth, Sixth and Fourteenth Amendments to the

United States Constitution and Article I, Section 16 of

the Ohio Constitution guarantee a defendant a right to a

fair trial. The trial court denied appellant a fair trial

when it permitted the State of Ohio to elicit testimony

from witness Charles Ronkas, the sole effect of the

testimony was to elicit sympathy for the victim and to

add no probative evidence to the elements of the crimes

for which appellant was indicted.

28. The Fifth, Eighth and Fourteenth Amendments to

the United States Constitution and Article I, Sections

10 and 16 of the Ohio Constitution guarantee an

accused a fair trial whose outcome will be as free as

possible from bias and sympathy. The state of Ohio, by

75a

calling Barbara Chapm.o, the employer of the victim,

Brian T. Warford, interjected sympathy and passion

into the judicial process while contributing nothing to

the matters in issue and, therefore, violated the above

cited constitutional principles.

29. The Fifth and Sixth Amendments to the United

States Constitution; Article I, Section 10 of the Ohio

Constitution and Ohio Evidence Rule 802 guarantee a

defendant the night to a fair trial through the right of

cross examination of the state’s witnesses. The trial

court’s admission of the results of the toxicologist’s

reports as to Horace Rickerson violated these rights

guaranteed by the Ohio and United States Constitution

and Ohio Rules of Evidence.

30. The Fifth and Sixth Amendments to the United

States Constitution; Article I, Section 10 of the Ohio

Constitution and Ohio Evidence Rule 802 guarantee a

defendant the right to a fair trial through the right of

cross-examination of the state’s witnesses. The trial

court’s admission of the results of the pathologist’s

reports as to Timothy Sheehan violated these rights

guaranteed by the Ohio and United States Constitutions

and Ohio Rules of Evidence.

31. The Fifth, Eighth and Fourteenth Amendments to

the United States Constitution, and Article I, Sections

10 and 16 of the Ohio Constitution, guarantee an

accused a fair trial whose outcome will be as free as

possible from bias and sympathy. The state of Ohio, by

requesting that pathologists speculate as to the order the

bullets struck the victim and the impact each bullet had

upon each victim interjected sympathy and passion into

the judicial process while contributing nothing to the

matters in issue and thereby violated the above cited

constitutional principles.

32. The Fifth, Sixth and Fourteenth Amendments to the

United States Constitution and Article 1, Sections 10

and 16 of the Ohio Constitution guarantee an accused

the rights of due process and a fair and impartial trial.

The trial court erred to the prejudice of the appellant by

76a

allowing gruesome, prejudicial, and cumulative

pictures into evidence when the prejudicial effect of

these pictures clearly outweighed the probative value.

33. The Fifth and Fourteenth Amendments to the

United States Constitution, Section 2945.35 of the Ohio

Revised Code, and Article I, Section 16 of the Ohio

Constitution guarantee the accused the right to a fair

trial. The trial court’s failure to exclude from the jury’s

consideration evidence which the trial court had already

ruled was inflammatory and prejudicial violated

appellant’s rights as guaranteed by the federal and Ohio

Constitutions and 2945.35 of the Ohio Revised Code.

34. The Fifth, Sixth and Fourteenth Amendments to the

United States Constitution and Article I, Sections 10

and 16 of the Ohio Constitution guarantee an accused

the rights of due process and a fair and impartial trial.

The trial court erred to the prejudice of the appellant by

allowing gruesome, prejudicial, and cumulative

testimony concerning the death of Horace Rickerson

when it was clear that the prejudicial effect of this

testimony outweighed the probative value.

35. The Fifth, Sixth and Fourteenth Amendments to the

United States Constitution and Article I, Sections 10

and 16 of the Ohio Constitution guarantee an accused

the rights of due process and a fair and impartial trial.

The trial court erred to the prejudice of the appellant by

allowing gruesome, prejudicial, and cumulative

testimony conceming the death of Timothy Sheeban

when it was clear that the prejudicial effect of this

testimony outweighed the probative value.

36. The Fifth, Sixth and Fourteenth Amendments to the

United States Constitution and Article I, Sections 10

and 16 of the Ohio Constitution guarantee an accused

the rights of due process and a fair and impartial trial.

The trial court erred to the prejudice of the appellant by

allowing gruesome, prejudicial, and cumulative

testimony concerning the death of Brian Warford when

it was clear that the prejudicial effect of this testimony

outweighed the probative value.

77a

37. The Fifth and Sixth Amendments to the United

States Constitution; Article I, Section 10 of the Ohio

Constitution and Ohio Evidence Rule 802 guarantee a

defendant the right to a fair trial through the cross-

examination of the state witnesses. The trial court’s

admission of the testimony of Theodore Budzik

concerning the contents of a telephone conversation he

had with an unidentified informant violated these rights

as guaranteed by the Ohio and United States

Constitutions and the Ohio Rules of Evidence.

38. The Fifth, Sixth and Fourteenth Amendments to the

United States Constitution and Article I, Sections 10

and 16 of the Ohio Constitution guarantee an accused

the rights of due process and a fair and impartial trial.

The trial court erred to the prejudice of appellant by

admitting testimony concerning appellant’s prior acts of

shooting out the window of his apartment.

39. The Fifth, Sixth and Fourteenth Amendments to the

United States Constitution and Article I, Sections 10

and 16 of the Ohio Constitution guarantees an accused

the right to due process of law and a fair trial. The trial

court’s admission of testimony concerning firearms

which were found among the belongings of appellant,

but said weapons were not connected to the crimes for

which appellant was charged, violated the above cited

constitutional provisions and Ohio Evidence Rules 401,

402, and 403.

40. The Fifth, Sixth and Fourteenth Amendments to the

United States Constitution and Article I, Sections 10

and 16 of the Ohio Constitution guarantees an accused

the right to due process of law and a fair trial. When a

tnal court allows testimony and evidence to be

presented concerning property of the defendant, such as

an anarchist cookbook which is inflammatory and

prejudicial, violated the above cited provisions and

Ohio Evidence Rules 401, 402, and 403.

41. The Fifth, Sixth and Fourteenth Amendments to the

United States Constitution, Article I, Section 10 and 16

of the Ohio Constitution guarantee an accused the right

78a

to a fair trial and due process of law. The trial court's

repeated admission of prior uncharged acts of

assaultive conduct by appellant violated these rights.

42. The Fifth and Fourteenth Amendment to the United

States Constitution and Article 1, Sections 10 and 16 of

the Ohio Constitution, guarantee the accused the right

to a fair trial and that the state will not suppress

exculpatory or favorable evidence. The State of Ohio's

suppression of evidence that Betty Braun was unabie to

select Ronald Reddish in a lineup was a violation of

43. The Fifth, Sixth and Fourteenth Amendments to the

United States Constitution and Article I, Section 16 of

the Ohio Constitution guarantee that a custodial

statement not be admitted in court unless the accused,

prior to giving such statement has been informed of his

Miranda rights. The admission of appellant's statement

to Dr. Resnick violated such rights.

44. The Fifth, Sixth and Fourteenth Amendments to the

United States Constitution and Article I, Sections 10

and 16 of the Ohio Constitution guarantee that an

accused’s post-arrest silence will not be used against

him. When a prosecutor deliberately tells the jury that

the accused exercised his Miranda right to remain

silent, the accused’s constitutional guarantees are

violated.

45. The Fifth, Sixth and Fourteenth Amendments to the

United States Constitution and Article 1, Sections 10

and 16 of the Ohio Constitution guarantee an accused a

right to a fair trial and a right to confront witnesses.

When a prosecutor testifies on his own and allows a

witness to testify, without being swom, the above cited

rights are violated

46. The Fifth, Sixth and Fourteenth Amendments to the

United States Constitution and Sections 10 and 16,

Article I of the Ohio Constitution guarantee the accused

the rights to cross-examine witnesses, have testimony

adduced only when under oath, and to not be subjected

79a

to prosecutorial misconduct. The prosecutor’s repeated

testimony which was not subject to cross-examination

nor under oath concerning appellant's political beliefs

47. The Fifth, Sixth and Fourteenth Amendments to the

United States Constitution; Article I, Sections 10 and 16

of the Ohio Constitution guarantee an accused the right

to a fair trial and due process of law. The tria! court’s

repeated admission of prior uncharged acts of

assaultive conduct by appellant toward his wife

violated these rights.

48. The Fourteenth Amendment to the United States

Constitution; Section 16, Article I, of the Ohio

Constitution; and R.C. 2929.05 require the trial court to

keep a complete record of all proceedings. Its failure to

maintain such a record during the mitigation phase

denied appellant his rights as guaranteed by the United

States and Ohio Constitutions and Ohio Revised Code.

49. The Fifth and Fourteenth Amendments to the

United States Constitution and Article 1, Sections 10

and 16 of the Ohio Constitution guarantee the defendant

a fair trial free from prosecutorial misconduct. The

repeated statements in the mitigation phase by the

prosecutor that were not supported by the evidence

violated these nghts.

50. The defense has the burden of going forward with

evidence at the penalty phase of a capital trial. The state

may then only rebut specific evidence presented by the

defense in mitigation. Where the state presents

irrelevant and inflammatory evidence that does not

rebut any evidence presented in mitigation, the delicate

balancing system is upset and the reliability of the

sentencing procedure is destroyed in violation of the

Eighth and Fourteenth Amendments and Article I,

Sections 9 and 16 of the Ohio Constitutions.

51. Failing to instruct the jury concerning the

appellant's constitutional right not to testify at the

penalty phase, denied appellant's mghts as guaranteed

80a

by the Fifth and Fourteenth Amendments to the United

States Constitution and Section 10, Article I, of the

Ohio Constitution.

52. Jury instructions that penllit a finding of death

where “you are firmly convinced of the truth of the

charge” destroy the reliability of the sentencing

procedure in violation of the Fifth, Sixth, Eighth and

Fourteenth Amendments to the United States

Constitution and Sections 2, 9, 10 and 16, Article I, of

the Ohio Constitution.

53. Charging the jury at the penalty phase that it could

consider any factor it desired m determining the

appropriate penalty violated appellant’s rights as

guaranteed by the Fifth, Eighth and Fourteenth

Amendments to the United States Constitution and

Sections 9 and 16, Article I, of the Ohio Constitution.

54. Jury instructions requiring unanimity for a life

verdict at the penalty phase deny the accused his right

to a fair trial and freedom from cruel and unusual

punishment in violation of the Fifth, Eighth and

Fourteenth Amendments to the United States

Constitution and Sections 9 and 16, Article I, of the

Ohio Constitution.

55. The Fifth, Eighth and Fourteenth Amendments to

the United States Constitution and Article I, Sections 9

and 16 of the Ohio Constitution guarantee the accused a

fair trial and freedom from cruel and unusual

punishment. The trial court’s instruction in the

mitigation phase prohibiting consideration of mercy

and sympathy violated such rights.

56. Ohio’s mandatory sentencing scheme prevented the

jury from deciding whether death was the appropriate

punishment in violation of appellant’s rights as

guaranteed by the Eighth and Fourteenth Amendments

to the United States Constitution and Sections 9 and 16,

Article I, of the Ohio Constitution.

57. Appellant was denied effective assistance of

counsel in the mitigation portion of the tnal as

8la

guaranteed by the Fifth, Sixth and Fourteenth

Amendments to the United States Constitution and

Section 10, Article [, of the Ohio Constitution.

58. The Fifth, Sixth and Fourteenth Amendments to the

United States Constitution and Article I, Sections 10

and 16 of the Ohio Constitution guarantee an accused

the right to a fair trial and to the effective assistance of

counsel. When defense counsel fails to preserve error

he is denied effective assistance of counsel as

guaranteed by the above constitutional provisions.

59. The Fifth, Sixth and Fourteenth Amendmer ts to the

United States Constitution and Article I, Sections 5, 10

and 16 of the Ohio Constitution guarantee an accused

the right to effective assistance of counsel when

entering a no contest plea. The assistance of counsel

which appellant received when entering his no contest

plea to attempted murder did not fall within the range

of professionally acceptable conduct and thereby

appellant was deprived of his right to effective

assistance of counsel.

60. The Fifth, Sixth and Fourteenth Amendments to the

United States Constitution and Article I, Section 16 of

the Ohio Constitution guarantee a convicted defendant

a right to a fair appeal and effective assistance of

counsel when such appeal is an appeal-of-right. The

Eighth District Court of Appeals steadfast refusal to

permit counsel for appellant to raise and brief any

issues on either the first or second remand from the

Ohio Supreme Court of this case violated such rights.

61. Appellant’s original counsel by raising only a single

issue in appellant’s initial appeal violated appellant's

rights as guaranteed by the Fifth, Sixth and Fourteenth

Amendments of the United States Constitution and

Article I, Sections 10 and 16 of the Ohio Constitution.

62. The Fifth, Eighth and Fourteenth Amendments to

the United States Constitution, Article I, Section 10 and

16 of the Ohio Constitution and Ohio Revised Code

Section 2929.05 guarantee a convicted defendant a fair

82a

conviction. State v. Spisak, 521 N.E.2d 800 (Ohio 1988).

Spisak then petitioned the United States Supreme Court for a

writ of certiorari, but his petition was denied.* Spisak v. Ohio,

489 US. 1071 (1989).

and impartial review of his death sentence. The

statutorily mandated proportionality process in Ohio is

fatally flawed thereby denying appellant the above

rights.

63. The Fifth, Eighth and Fourteenth Amendments to

the United States Constitution, Sections 9 and 16,

Article I, of the Ohio Constitution and Revised Code

Section 2929.05 guaranteed that the sentence imposed

in a capital trial will be reliable. When both the guilt

and mitigation phases of a capital trial are replete with

errors, the sentence of death is unreliable and

inappropriate.

64. The Fifth, Sixth, Eighth and Fourteenth

Amendments to the United States Constitution and

Article I, Sections 2, 9, 10 and 16 establish the

requirements for a valid death penalty scheme. Ohio

Revised Code Sections 2903.01, 2929.02, 2929.021,

2929.022, 2929.023, 2929.03, 929.04, 2929.05, Ohio’s

statutory provisions governing the imposition of the

death penalty do not meet the prescribed requirements

and, thus, are unconstitutional, both on their face and as

applied to appellant.

* Spisak raised the following two claims to the United States Supreme

Court:

1. Whether the Ohio Supreme Court’s Failure to review

any of the errors presented to it by a capitally convicted

appellant, although review is required by Ohio Statute,

constitutes a violation of the Eighth and Fourteenth

Amendments and is contrary to this Court’s rulings in

Gregg v. Georgia and its progeny.

2. Whether an instruction, although “technically”

accurate, stressing the preliminary nature of a jury’s

decision of a death sentence in a capital case so

83a

On November 1, 1989, Spisak filed a petition for

post-conviction relief pursuant to Ohio Rev. Code §

2953.21.° The trial court denied Spisak relief on June 12,

misleads a jury about the importance of its decisions

and diminishes its sense of responsibility for that

decision as to increase the likelihood of a death verdict,

thereby destroying the reliability of sentencing

procedure is unconstitutional.

> After amending his petition four times, Spisak raised

the following causes for relief:

1. The judgment against Petitioner Spisak is void or

voidable because the trial court instructed the

Petitioner’s jury in the penalty phase of Petitioner’s

trial on nineteen (19) separate aggravating

circumstances to four aggravated murder charges when

there were only three murders, thus destroying the

reliability of the sentencing proceedings in violation of

Petitioner’s constitutional rights as guaranteed under

the Eighth and Fourteenth Amendments to the United

States Constitution and Sections 2, 9, 10 and 16, Article

] of the Ohio Constitution.

2. The judgment against Petitioner Spisak is void or

voidable because he was denied his constitutional rights

to a fair trial, an impartial jury and the effective

assistance of counsel as guaranteed by the Fifth, Sixth

and Fourteenth Amendments to the United States

Constitution and Sections 5, 10 and 16,

Article ! of the Ohio Constitution when Petitioner's

trial counsel failed to move the trial court for a change

of venue and further failed to conduct voir dire of

potential jurors to detenlline the impact and influence

of the inflammatory and pervasive publicity attendant

on potential jurors.

3. The judgment against Petitioner Spisak is void or

voidable due to the error committed by the trial court in

placing the burden of proof and the burden of going

forward upon the Petitioner during a hearing on his

motion to suppress evidence thereby violating

Petitioner's rights as guaranteed by the Fourth, Fifth,

and Fourteenth Amendments to the United States

Constitution and Sections 14 and 16, Article I of the

Ohio Constitution.

4. The judgment against Petitioner Spisak is void or

voidable because evidence used against him during his

trial was obtained in violation of the Fourth and

Fourteenth Amendments to the United States

Constitution and Sections 14 and 16, Article I of the

Ohio Constitution.

5. The judgment against Petitioner Spisak is void or

voidable because the arrest of the Petitioner and

evidence obtained during the arrest violated the

requirements of the Fourth and Fourteenth

Amendments of the United States Constitution and

Sections 14 and 16, Article I of the Ohio Constitution.

6. The judgment against Petitioner Spisak is void or

voidable due to the illegal seizure and search of the

1975 Buick LeSabre.

7. The judgment against Petitioner Spisak is void or

voidable because the trial court’s and prosecutor's

repeated comments to the jury that the jury’s death

penalty verdict was only a recommendation and not

binding upon the trial judge violated the Petitioner's

constitutional rights as guaranteed by the Eighth and

Fourteenth Amendments to the United States

Constitution and Sections 9 and 16, Article I of the

Ohio Constitution.

8. The judgment against Petitioner Spisak is 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 Thomas J. Schmitt.

5a

9. The judgment against Petitioner Spisak is void or

voidable due to the trial court’s failure to sequester and

admonish potential jurors.

10. The judgment against Petitioner Spisak is void or

voidable because the trial court failed to ensure that

Petitioner Spisak was present when jurors were excused

for cause. (VD Tr. 411-416.)

11. The judgment against Petitioner Spisak is void or

voidable because the jury’s determination that death

was appropriate in his case was impermissibly

influenced by the prosecutor’s comments during voir

dire that the jury must return such penalty when the

aggravating circumstances outweigh the mitigating

factors beyond a reasonable doubt in violation of

Petitioner’s rights pursuant to the Eighth and

Fourteenth Amendments to the United States

Constitution and Sections 9 and 16, Anicle I of the

Ohio Constitution.

12. The judgment against Petitioner Spisak is void or

voidable due to the failure of the trial court to have the

jury view recorded.

13. The judgment against Petitioner Spisak is void or

voidable because the trial court abused its discretion by

allowing Petitioner to appear before the jury in shackles

in violation of the Fifth, Sixth and Fourteenth

Amendments to the United States Constitution and

Section 16, Article I of the Ohio Constitution.

14. The judgment against Petitioner Spisak is void or

voidable due to the trial court’s failure to insure that the

jury's deliberations and verdict remained untainted by

instructing the jury regarding the shackling of

Petitioner.

15. The judgment against Petitioner Spisak is void or

voidable due to the injection of bias and sympathy by

the State of Ohio for victim Horace Rickerson.

16. The judgment against Petitioner Spisak is void or

voidable due to the injection of bias and sympathy by

the State of Ohio for victim John Hardaway.

17. The judgment against Petitioner Spisak is void or

voidable due to the injection of bias and sympathy by

the State of Ohio for victim Timothy Sheehan.

18. The judgment against Petitioner Spisak is void or

voidable due to the injection of bias and sympathy by

the State of Ohio for victim Brian Warford.

19. The judgment against Petitioner Spisak is void or

voidable because Petitioner was denied his right to

confrontation when the coroner testified conceming a

toxicologist examination she did not perform.

20. The judgment against Petitioner Spisak is void or

voidable because Petitioner was denied his right to

confrontation when a coroner who had not performed

the autopsy on Timothy Sheehan testified as to the

autopsy.

21. The judgment against Petitioner Spisak is void or

voidable due to the introduction of bias and prejudice

into the proceedings in violation of the Fifth, Eighth

and Fourteenth Amendments to the United States

Constitution and Sections 9 and 16, Article I of the

Ohio Constitution.

22. The judgment against Petitioner Spisak is void or

voidable due tothe introduction of eighty-one

gruesome pictures during his trial.

23. The judgment against Petitioner Spisak is void or

voidable because Petitioner’s right to a fair trial, as

guaranteed by the Fifth and Fourteenth Amendments to

the United States Constitution and Section 16, Article I

of the Ohio Constitution was violated due to the trial

court’s failure to exclude from the jury’s consideration

evidence that the trial court had already ruled was

prejudicial and inflammatory.

24. The judgment against Petitioner Spisak is void or

voidable due to the admission of prejudicial and

cumulative testimony concerning the death of Horace

Rickerson.

25. The judgment against Petitioner Spisak is void or

voidable due to the admission of prejudicial and

cumulative testimony conceming the death of Timothy

Sheehan.

26. The judgment against Petitioner Spisak is void or

voidable due

This text is long and has been trimmed here. Open the source document for the complete record.