Appendix — Tate v. Glenn
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951 96'9 way 28 199
CASE NO.
OFFICE OF ThE cure,
IN THE SUPREME COURT OF THE UNITED STATES
October Term, 1995
ARTHUR TATE, JR., WARDEN,
Petitioner,
VS.
JOHN GLENN,
Respondent.
On Writ of Certiorari to the United States Court of
Appeals for the Sixth Circuit
PETITIONER’S APPENDIX
BETTY D. MONTGOMERY
Attorney General of Ohio
JEFFREY S. SUTTON
State Solicitor
Counsel of Record
SIMON B. KARAS
Deputy Chief Counsel
DONALD G. KEYSER
Assistant Attorney General
30 E. Broad Street, 26th Floor
Columbus, Ohio 43215-3428
(614) 728-7055
Counsel for Petitioner
PAGE NO.
Opinion of United States Court of Appeals
Case No. 93-3568, dated 12/21/95 ............. l
Judgment Entry & Opinion of United States
District Court, dated 4/28/93 ................ 23
Judgment Entry & Opinion of USDC
ag ee ey Sed ew 41
Order (rehearing) of USCA, dated 2/26/96 ....... 142
Entry of United States Supreme Court,
oe 6 ae a ee a 143
Entry of Supreme Court of Ohio, dated 2/20/91 ... 144
Entry & Opinion of Court of Appeals of Ohio,
Ny OID hig sd oop) a ed es oe ow a 145
Entry & Opinion of Ohio CA, dated 9/24/90 ..... 151
Judgment Entry & Opinion of Portage County Court of
Common Pleas, dated 6/21/89 .............. 188
Habeas Reform - Title 1
Section 104 §2254 Amendments ............. 190
|
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 24
ELECTRONIC CITATION: 1995 FEDApp.0373P(6th Cir.)
File Name: 95a0373p.06
No. 93-3568
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
JOHN GLENN,
Petitioner-Appellant,
ON APPEAL from
v. the United States
District Court for
ARTHUR TATE, JR., WARDEN : the Northern District
: of Ohio
Respondent- Appellee.
Decided and Filed December 21, 1995
Before: GUY, NELSON, and SILER, Circuit Judges.
NELSON, J., delivered the opinion of the court, in
which GUY, J., joined. SILER, J. (Pp. 17-21), delivered
a separate opinion concurring in part and dissenting in part.
DAVID A. NELSON, Circuit Judge. This is an appeal
from the denial of a writ of habeas corpus sought by an Ohio
prisoner who is under a sentence of death, imposed on the
recommendation of a jury, for aggravated murder. The
petitioner contends, among other things, that he failed to
receive effective assistance of counsel, to his prejudice, at
the sentencing phase of his trial.
2
Under Ohio law, the defendant in a murder case that is
tried to a jury cannot be sentenced to death unless the jury
finds, beyond a reasonable doubt, that the aggravating
circumstance - here the fact that the victim was a peace
officer - outweighs any mitigating circumstances. Perhaps
the most significant of the potentially mitigating
circumstances in this case was the fact that, according to
evidence elicited after sentence had been imposed, the
petitioner -- a young man who had been classified in school
as mentally retarded, who was apparently acting at the
instigation of an older brother, and who was highly
susceptible to suggestion by people he admired -- suffered
from global brain damage sustained before he was born.
Expert testimony that the petitioner’s brain function was
organically impaired would have been readily available if the
petitioner’s lawyers had sought it. They failed to do so - and
they compounded this error by a series of mistakes which,
among other things, led to the jury being presented with
uncontradicted expert evidence that the offense was not the
product of mental retardation or organic brain disease.
So serious were the lawyers’ mistakes, in our view, that
the lawyers were not functioning as the “counsel” to which
the accused was entitled under the Sixth Amendment. And
because of the lack of adequate representation, the result
reached in the sentencing proceeding was simply not reliable.
While affirming the denial of habeas relief insofar as the
petitioner’s murder conviction is concerned, we shall direct
that the writ of habeas corpus be granted unless the petitioner
is resentenced.
I.
Although the petitioner, John Glenn, has consistently
maintained his innocence, the prosecution presented strong
evidence that it was he who shot and killed a part-time
deputy sheriff, John Litch, Jr., in October of 1981. The
shooting occurred during an attempt to free Robert Glenn, an
3
older brother of John Glenn, from the deputy’s custody.
Robert Glenn, an inmate at the Mahoning County jail in
Youngstown, Ohio, was periodically taken to a local hospital
for treatment of a broken leg. He apparently devised a plan
for an escape to be staged en route to the hospital, and he got
John Glenn to help him carry the plan out. (Robert was later
tried and convicted on charges of escape and involuntary
manslaughter, and the evidence presented at his trial was
characterized by the prosecution as showing that it was
Robert Glenn who planned the escape; “his signature is all
over this escape plan,” the prosecution argued in Robert
Glenn’s case.)
Deputy Sheriff Litch drew the assignment of driving
Robert to the hospital on the day in question. Before the trip
was completed, the evidence showed, a turquoise and black
car struck the deputy’s vehicle from the rear at a busy
intersection. When the deputy got out of his cruiser and
approached the driver of the other car, the latter shot him at
point-blank range with a sawed-off shotgun. The victim died
almost immediately.
Robert Glenn and the other man fled the scene in the
car. John Glenn was arrested a few hours later at the home
of his girlfriend, Alseen Lanier. Ms. Lanier testified at trial
that John told her he had killed a police officer and that she
should keep this a secret.
At approximately the same time as the shooting, Otis
Simmons, an acquaintance of John Glenn, was stopped by a
police officer for reasons unrelated to the homicide. While
Simmons was in the officer’s cruiser, a call came over the
radio about the shooting of Deputy Litch. Simmons then told
the officer that earlier in the day John Glenn had told him he
was going to “escape” his brother Robert.
4
The crime occurred three days after the effective date of
the 1981 legislation that cured constitutional defects in Ohio’s
death penalty law. See Ohio Rev. Code §§2929.02 et seg.
A Mahoning County grand jury indicted John Glenn, who
was 19 years old at the time, for aggravated murder. The
indictment specified that the victim of the offense was a
peace officer engaged in his duties. The charge was one for
which the death penalty could be imposed under Ohio Rev.
Code §§2929.03 and 2929.04(A)(6).
Publicity about the case was so extensive in the
Youngstown area that the Mahoning County Common Pleas
Court was unable to seat a jury after twenty-three days of
voir dire. Mr. Glenn’s appointed trial counsel moved for a
change of venue, and the case was sent to nearby Portage
County for trial.
Both Ms. Lanier and Mr. Simmons testified at the trial.
In addition to their highly incriminating testimony, the
prosecution introduced a chemical test which revealed that
John Glenn had significant amounts of barium on his hands,
consistent with the recent use of a weapon. There was
evidence that Robert Glenn’s mother had a turquoise and
black car that had been driven by John Glenn on the morning
of the murder. Plaster scrapings found in the car matched
the plaster of Robert Glenn’s leg case.
The jury found Glenn guilty as charged. A few days
later, after a relatively brief evidentiary hearing on the
sentence, the jury recommended imposition of the death
penalty. The trial court accepted the recommendation.
After exhausting his state remedies on direct appeal and
in post-conviction proceedings, Glenn petitioned the United
States District Court for a writ of habeas corpus pursuant to
28 U.S.C. §2254. The district court denied the petition, and
this appeal followed.
II.
The appellant’s strongest argument is that he failed to
receive effective assistance of counsel during the penalty
phase of his trial. To obtain relief on such a ground, he
must show both that his counsel’s performance “fell below
an objective standard of reasonableness” and that he was
prejudiced as a result. Strickland v. Washington, 466 U.S.
668, 687-88, 692 (1984).
The state court of appeals to which Glenn appealed from
the trial court’s denial of post-conviction relief concluded that
the performance of Glenn’s counsel was not objectively
reasonable. The denial of relief was nonetheless upheld on
the theory that Glenn could not demonstrate prejudice. An
appeal from this decision was dismissed without opinion by
the Supreme Court of Ohio.
Like the state court of appeals, the federal district court
rested its disposition of the ineffective assistance question
solely on the “prejudice” branch of the Strickland inquiry;
the district court pretermitted the issue of whether the
lawyer’s performance could pass constitutional muster. We
must review the entire question de novo, see Strickland, 466
U.S. at 698, and Smith v. Livesay, 970 F.2d 1575, 1579 (6th
Cir. 1992), and respect for our state and federal colleagues
who have already examined the question prompts us to pay
particularly close attention to the prejudice aspect.
Under Ohio’s death penalty statute, the trial jury was
required to weigh against the aggravating circumstances of
the crime “the history, character, and background of the
offender,” among other things. Ohio Rev. Code
§2929.04(B). The jury was also required to consider
whether, “because of a mental disease or defect,” the
6
offender “lacked substantial capacity to appreciate the
criminality of his conduct or to conform his conduct to the
requirements of the law.” Ohio Rev. Code §2929.04(B)(3).
And the jury was required to consider “[a]ny other factors
that are relevant to the issue of whether the offender should
be put to death.” Ohio Rev. Code §2929.04(B)(7). The jury
could consider none of these matters, of course, if the
relevant facts were not placed before it.
Here the jury was given virtually no information on John
Glenn’s history, character, background and organic brain
damage - at least no information of a sort calculated to raise
reasonable doubt as to whether this young man ought to be
put to death. It was not that such information could not be
found, or that counsel made a reasoned decision to withhold
the information for tactical or strategic reasons. The
information was not presented to the jury because counsel
never took the time to develop it.!
Although both of Glenn’s court-appointed lawyers were
experienced criminal defense attorneys, and although they
had some eight months to get ready for sentencing
proceedings necessitated by a verdict that could hardly have
come as a surprise to them, evidence presented to the state
trial court at a post-sentence hearing showed that the lawyers
made virtually no attempt to prepare for the sentencing phase
of the trial until after the jury returned its verdict of guilty.
It was obvious, or should have been, that the sentencing
phase was likely to be “the stage of the proceedings where
counsel can do his or her client the most good,” Kubat v.
"See Horton v. Zant, 941 F.2d 1449, 1462 (11th Cir.
1991), cert. denied, 503 U.S. 592 (1992), where the court
“reject[ed] the notion that a ‘strategic’ decision can be reasonable
when the attorney has failed to investigate his options and make a
reasonable choice between them.”
7
Thieret, 867 F.2d 351, 369 (7th Cir.), cert denied, 493 U.S.
874 (1989) -- yet Glenn’s counsel failed to make any
significant preparations for the sentencing phase until after
the conclusion of the guilt phase. This inaction was
objectively unreasonable. “To save the difficult and time-
consuming task of assembling mitigation witnesses until after
the jury’s verdict in the guilt phase almost insures that
witnesses will not be available.” Blanco v. Singletary, 943
F.2d 1477, 1501-02 (11th Cir. 1991), cert. denied, 504
U.S. 943 (1992).
Only one of Glenn’s lawyers did any preparatory work
at all following the verdict, and his efforts were largely
misdirected. He arranged for the preparation of a videotape
which, if the members of the jury had been permitted to see
it, would have shown them the physical appearance of the
neighborhood where Glenn grew up and would have enabled
them to hear commentary by a narrator, by John Glenn’s
mother, and by a trucker for whom Glenn had once worked.
The admissibility of such a videotape was obviously
questionable, but counsel sought no advance ruling on the
issue. When the videotape was sought to be shown to the
jury, the trial court held -- properly, in our view, see Lockett
v. Ohio, 438 U.S. 586, 604 n.12 (1978) -- that it was
inadmissible hearsay.
Although the jury did not see the videotape, neither John
Glenn’s mother nor the former employer was called to
present live testimony. Aside from the producer-narrator,
who testified briefly as to the preparation of the videotape,
the only mitigation witnesses the jury heard were a minister
and a teacher who had known John Glenn when he was small
but had seen nothing of him for years; a minister who did
not know him at all but attempted -- without much success,
most of the proposed testimony being ruled inadmissible --
to present theological objections to the death penalty; and a
8
lawyer who expressed the opinion that although John Glenn
had a delinquency adjudication and a record that included
some arrests and misdemeanor convictions, he did not have
a “significant” criminal record. (This testimony pertained to
one of the statutory mitigation factors, “[t]he offender’s lack
of a significant history of prior criminal convictions and
delinquency adjudications.” Ohio Rev. Code
§2929.04(B)(5).)
John Glenn himse!f made a brief unsworn statement to
the jury. The statement, in its entirety, was as follows:
“I am - I am not guilty. I should not be given the -- |
should not be given the death sentence for a crime I did
not commit. Thank you.”
None of Glenn’s relatives testified, although a number of
them would have been willing to do so if asked.
The prosecutor told the jury in final argument that “you
received little by way of mitigation at the supposed
mitigation hearing.” This was certainly true; the jury did
receive very little by way of mitigation evidence at what was
supposed to be the mitigation hearing.
The reason for the paucity of mitigation evidence, as we
have said, was lack of preparation on the part of Glenn’s
lawyers. The lawyers made no systematic effort to acquaint
themselves with their client’s social history. They never
spoke to any of his numerous brothers and sisters. They
never examined his school records. They never examined
his medical records (including an emergency room record
prepared after he collapsed in court one day) of records of
mental health counseling they knew he had received. They
never talked to his probation officer or examined the
probation officer’s records. And although they arranged for
9
tests, some months before the start of the trial, to determine
whether he was competent to stand trial, they waited until
after he had been found guilty before taking their first step -
- Or misstep, as we shall explain presently -- toward
arranging for expert witnesses who might have presented
mitigating evidence on John Glenn’s impaired brain function.
If the lawyers had done what they should have done,
they would have been in a position to show the jury that John
Glenn’s family always considered him “slow;” that as early
as the first grade he was assigned to a program for “educable
mentally-retarded children;” that his school I.Q. tests
repeatedly produced scores in the 60s; that a clinical
psychological evaluation conducted a month before his 14th
birthday reported a full scale I.Q. score of 56, placing him
“within the Mental Defective range;” that another
psychological evaluation conducted in this time frame
described him as “an ineffectual and dependent young man”
who “is very anxious and insecure;” that he left school
virtually illiterate; that his mother beat him and his siblings
regularly; and that he was hyperactive as a child, constantly
butting his head against things and rocking his body back and
forth when he went to sleep. Expert testimony adduced at
the post-sentence hearing indicated that the hyperactivity was
caused by a neurological impairment.
Dr. James Tanley, a neuropsychologist who examined
John Glenn in connection with the post-sentence proceedings,
found that Glenn was of borderline intelligence (Dr. Tanley
reported a full scale 1.Q. of 73), with evidence of brain
damage. “There is no doubt in my mind but that there is
something neurologically wrong with his brain,” Dr. Tanley
testified, “and that is going to have an effect on his
behavior.”
The brain damage was global in nature, according to Dr.
10
Tanley, and might well have resulted from a surgical
operation performed on Glenn’s mother under general
anesthesia early in her pregnancy. (Another expert witness
who examined the pertinent hospital records also endorsed
this hypothesis.)
Dr. Tanley expressed the view that John Glenn did not
have the substantial capacity to conform his conduct to the
requirements of the law. The doctor also opined that it was
“extremely unlikely” that John Glenn himself would have
been capable of thinking up the plan to break Robert Glenn
free from custody; John’s role in the scheme, according to
Dr. Tanley, would have been that of a follower, not a leader.
A wealth of evidence was available to show that John
Glenn had always been a follower, as opposed to a leader.
His probation officer, for example, who supervised him for
a period of 10 months when Glenn was 17, testified at the
post-sentence hearing that Glenn was not able to keep up
with his peers on the street, was “definitely a follower,” and
“didn’t have enough going to be a leader.” Concerned about
Glenn’s inability to say no to his “negative peers,” the
probation officer once asked him if he would jump off the
Mahoning Bridge (a high span over a river bed with more
rocks than water) if his friends asked him to. Glenn said he
would -- an answer consistent with the probation officer’s
view that the boy sought and needed attention from his peers.
Most of the attention that John Glenn did receive, the
probation officer testified, came from his brother Robert.
The jurors, unfortunately for John Glenn, heard none of
this. They did not hear that he had been classified in school
as mentally retarded. They did not hear of his need for
attention, or his susceptibility to the influence of his brother
Robert. And they did not hear that he had a neurological
impairment which probably stemmed from the general
Il
anesthesia administered to his mother months before he was
born.
As we have indicated, however, the jurors were not
without expert guidance of a sort. It is important to
understand the arrangements under which this guidance was
obtained.
Nine days before the sentencing hearing was scheduled
to start, John Glenn’s counsel asked to trial court for a
medical examination of the defendant “pursuant to the
provisions of 2929.024 of the Revised Code of Ohio.”
(Section 2929.024 provides that where experts are reasonably
necessary for the proper representation of the defendant at an
aggravated murder trial or at the sentencing hearing
following such a trial, and the court determines that the
defendant is indigent, “the court shall authorized the
defendant’s counsel to obtain the necessary services” at
government expense.’) Unable to identify any particular
expert whose services he wished to obtain, Glenn’s lawyer
then asked for the appointment of someone who had not been
involved in the earlier competency evaluation. The
prosecutor suggested that the defense was asking the court to
appoint its own psychologist or psychiatrist under an entirely
different procedure, one authorized by Ohio Rev. Code
§§2929.03(D)(1) and 2947.06. Defense counsel made the
mistake of acquiescing in this suggestion, despite the fact that
-- as the trial court pointed out at the time -- the jurors would
necessarily receive copies of any court-appointed expert’s
It is clear that the services provided for by §2929.024 are
available to the indigent capital defendant “for his own
purposes....” State v. Esparza, 39 Ohio St.3d 8, 9, 529 N.E.2d
192, 195 (1988). When the expert is retained under §2929.04, the
defendant can decide for himself whether he wants to put the
expert’s findings before the jury.
12
reports. Under the statute that defense counsel had cited
originally, by contrast, the preparation and disposition of any
reports would have been within the control of the defense.
Dr. D. V. Ramani, a psychiatrist, and Dr. James W.
Siddall, a psychologist, were appointed by the trial court to
evaluate John Glenn under Ohio Rev. Code §2947.06, the
statute cited by the prosecution. The doctors were briefed by
the prosecution, but not by the defense. Defense counsel had
no communication with the doctors at all.
Dr. Siddall spoke with John Glenn at the jail and gave
him some psychological tests. Dr. Siddall then prepared a
report that explained his reasons for believing that Glenn was
competent to stand trial -- an issue that had long since been
resolved -- and went on to analyze the question of mitigating
circumstances largely on the basis on how the crime had
been portrayed in documents furnished by the prosecution.’
The report then concluded with a sentence that seems
questionable in several particulars, given what we know now,
*The pertinent passage reads as follows:
“Regarding the question of mitigating circumstances, it
is not possible to determine a great deal from Mr.
Glenn’s self-report as he vehemently denies being
involved. However, the circumstances of this case, as
portrayed in the documents of investigation, do suggest
that Mr. Glenn knew the victim of the offense was a law
enforcement officer engaged in his duties at the time of
the offense. Circumstances also suggest that it was his
specific purpose to kill this officer, but it seems very
doubtful that the victim induced or facilitated the
offense. Similarly, there is no suggestion that Mr.
Glenn was under unusual duress, coercion, or strong
provocation, in fact, the circumstances do suggest that
the crime was carefully planned and carried out.
13
but would not have seemed questionable in light of what the
jury knew then: “Psychological evaluation indicates that the
offense was not the product of psychosis, mental retardation,
organic brain disease, other mental illness, lack of education,
unusual emotional pressure, or inadequate coping skills on
the part of Mr. Glenn.
Dr. Ramani also saw John Glenn at the jail and prepared
a report. Dr. Ramani’s examination appears to have been a
superficial one,* but the reporter’s concluding sentence was,
from the defense standpoint, simply devastating: “In
summary, within reasonable medical certainty, I do not see
any imtigating [sic] circumstances in this particualr [sic]
individual.”
Defense counsel asked the trial court to redact this
sentence before sending the report to the jury, but the court
refused to do so. This was probably an error on the court’s
part, in our view. The problem would never have arisen,
however, if defense counsel had not settled for court-
appointed experts whose reports were going to be given to
* The entire description of the examination reads as
follows:
“On Examination: Patient was well dressed and
groomed, reliable, pleasant, cooperative and open.
He was in good contact, with no evidence of acute
or overt psychosis. He was well oriented X3.
His cognitive functions including remote and
recent memory were intact. His judgment had
been adequate to his life style, to the extent he
worked in a body shop and was developing his
boxing skills. He is somewhat retarded (Repoted
[sic] IQ in 75 percentile), but this doesn’t appear
to be severe enough to impair his judgment or his
Capacity to manage his day very well.”
14
the jury willy-nilly, rather than exercising the right to obtain
defense experts under Ohio Rev. Code §2929.024, the statute
initially cited by counsei.°
Not only did the reports of Drs. Ramani and Siddall go
into the jury room in unredacted form, they went to the jury
without any suggestion at all that some of the conclusions in
the reports were open to question. John Glenn had a
statutory right to examine the authority of the reports under
oath, see Ohio Rev. Code §2947.06, but the doctors were
never called to the stand. We can only assume that defense
counsel, not having done their homework, were not prepared
to interrogate Drs. Ramani and Siddall about the basis for
the very damaging conclusions they stated.
Did any of this affect the reliability of the jury’s
>The dissent poses the following rhetorical question:
“Assuming that the court had authorized the
appointment of Drs. Ramani and Siddall under
§2929.024, and defense counsel did not like the
conciusions of the two experts, what were
[counsel] to do?”
The answer seems obvious: no competent defense lawyer
would have offered in evidence reports as damaging to the
defense as these were. But we are not prepared to assume
that Drs. Ramani and Siddall would have been the experts
retained by the defense under §2929.024 if counsel had done
their homework ahead of time and had asked for authorization
to hire someone like Dr. Tanley, for example. And defense
counsel should obviously have worked closely with anyone
retained as a defense expert to insure that the expert was full
aware of all facts that might be helpful to the defendant.
15
decision? We think it did. Viewing the total picture, and
considering both the nature of the material presented to the
jury that should not have been and the nature of the material
not presented to the jury that should have been, we cannot
have much confidence in the jury’s weighing of the factors
relevant to the issue of whether John Glenn should be
sentenced to death.
Under the Strickland test, the petitioner must show a
“reasonable probability” that, but for his counsel’s
unprofessional errors, the result would have been different.
Strickland, 466 U.S. at 694. The petitioner does not have to
show that his counsel’s deficient conduct “more likely than
not altered the outcome in this case.” Jd. at 693. The
“reasonable probability” of which Strickland speaks, rather,
is “a probability sufficient to undermine confidence in the
outcome.” Jd. at 694. The question, in other words, is
whether counsel’s errors were serious enough to deprive the
petitioner of a proceeding the result of which was “reliable,”
id. at 687 -- “whether counsel’s conduct so undermined the
proper functioning of the adversarial system that the trial [a
term that includes capital sentencing proceedings] cannot be
relied on as having produced a just result.” Jd. at 686.
John Glenn’s sentencing proceeding can hardly be relied
upon as having produced a just result when the jurors were
given to understand, in the unchallenged report of Dr.
Siddall, that the crime was not the product of mental
retardation or organic brain disease.° “It is clear that mental
°Dr. Ramani did acknowledge that Glenn was “somewhat
retarded,” but neither Dr. Ramani nor the jury had seen Glenn’s full
psychological record -- and the acknowledgment of some degree of
mental retardation was vitiated when Dr. Ramani invaded the province of
the jury by expressing the “medical” opinion that there were no
mitigating circumstances.
16
retardation has long been regarded as a factor that may
diminish an individual’s culpability for a criminal act.” Penry
v. Lynaugh, 492 U.S. 302, 337 (1989). Judge Easterbrook,
concurring in this affirmance of a grant of habeas relief to a
retarded petitioner who had apparently suffered brain damage
as a result of blows to the head in his youth, has cited
empirical evidence suggesting that while juries tend to
distrust claims of insanity, they are more likely to react
sympathetically when their attention is drawn to organic
brain problems such as mental retardation. Brewer v.
Aiken, 935 F.2d 850, 861-62 (7th Cir. 1991) (Easterbrook,
J., concurring). The failure of John Glenn’s counsel to draw
the jury’s attention to the organic brain problem here, and to
the possibility that it helped turn John Glenn into putty in the
hands of his admired older brother, was both objectively
unreasonable and prejudicial.
Our sister circuits have had no difficulty in finding
prejudice in sentencing proceedings where counsel failed to
present pertinent evidence of mental history and mental
capacity. In addition to Brewer v. Aiken, see e.g., Stephens
v. Kemp, 846 F.2d 642, 652-55 (11th Cir.), cert. denied,
488 U.S. 872 (1988) (“the resulting prejudice is clear”);
Blanco v. Singletary, 943 F.2d at 1505 (prejudice
requirement “clearly met” by counsel’s failure to present
evidence of epileptic seizures and organic brain damage);
Loyd v. Whelley, 977 F.2d 149, 159-60 (Sth Cir. 1992),
cert. denied, 113 S.Ct. 2343 (1993) (failure to present
mitigating evidence of substantial mental defects “undermines
our confidence in the outcome”). We would be badly out of
step with the other circuits were we to conclude that there
was no prejudice in the case at bar.
17
Even if were merely had “grave doubt” as to the
existence of prejudice, the Supreme Court’s recent holding
in O’Neal v. McAninch, 115 S.Ct. 992 (1995), would
require us to reverse the denial of habeas relief here. But it
is “unusual” for judges to be in such doubt, id. at 994, and
that is not the situation in which we find ourselves; under the
Strickland standard, we think the prejudice in this case is
quite clear.
II.
In additional to challenging his sentence, Glenn contends
that both the proceedings in which the jury found him guilty
and those in which the appellate courts affirmed the
conviction were tainted by error of constitutional dimension.
He argues that as an African American he was denied his
right to trial by a fairly representative jury when venue was
changed from Mahoning County, which has a substantial
minority population, to Portage County, which does not; that
there were multiple errors at trial, the cumulative effect of
which was to make the trial fundamentally unfair; and that he
was denied effective assistance of counsel on his direct
appeals as of right in the Ohio courts. We reject all of these
contentions, in part for reasons ably stated by the district
court.
The judgment of the district court is AFFIRMED insofar
as the denial of habeas relief was predicated upon the
conclusion that Glenn’s conviction and its affirmance on
appeal were not unconstitutional. The judgment is
REVERSED insofar as the sentence of death is concerned,
and the case is REMANDED with instructions to issue the
writ of habeas corpus, subject to the state’s imposing a new
sentence within a reasonable period of time.
SILER, Circuit Judge, concurring in part and dissenting in
part. I concur with Past III of the majority opinion which
18
affirmed the trial portion of Glenn’s conviction, but I
respectfully dissent from the majority’s conclusion in Part II,
that Glenn was denied the effective assistance of counsel in
the sentencing phase of his conviction. Therefore, I would
affirm the district court’s denial of the writ of habeas corpus.
As the majority describes, both the Ohio court of
Appeals and the United States District Court found no
prejudice from the performance of defense counsel at the
sentencing hearing, under the test from Strickland v.
Washington, 466 U.S. 668, 686-87 (1984). However, the
majority finds that the paucity of evidence introduced for
Glenn in his sentencing trial failed to show certain factors
outlined in Ohio Rev. Code §2929.04(B): (1) “the history,
character and background of the offender”; (2) whether “the
offender, because of a mental disease or defect, lacked
substantial capacity to appreciate the criminality of his
conduct or to conform his conduct to the requirement of the
law”; and (3) “[a]ny other factors that are relevant to the
issue Of whether [Glenn] should be put to death.” |
respectfully disagree with that conclusion. Certainly, in
hindsight, one can find experts and other witnesses who
might have helped Glenn. Whether they could have helped
him any better than the ones that were available is pure
speculation.
Defense counsel had the videotape prepared for the
sentencing phase of the trial. That showed foresight on his
part. The majority suggests that counsel should have
obtained an advance ruling on its admissibility, but whether
the trial court would have made a preliminary ruling is again
speculation, as some judges are reluctant to rule
prospectively on evidentiary matters. There was at least
some argument in favor of the videotape’s admissibility, for
the Ohio Court of Appeals on direct appeal discussed it and
then found the failure to admit it into evidence was harmless
19
error at best. The Ohio Supreme Court agreed, because,
“those particular matters applicable to mitigation which were
presented in the videotape were substantially included in the
trial testimony of other defense witnesses.” State vy. Glenn,
504 N.E.2d 701, 709 (Ohio 1986), cert. denied, 482 U.S.
931 (1987). Therefore, the failure to call Glenn’s mother
and the employer as witnesses was of little import to the
Ohio Supreme Court, as their testimony would have been
cumulative.
What was presented for Glenn in the sentencing phase of
the trial? The jury had the reports from Drs. Ramani and
Siddall, the presentence report, and testimony from a
minister, a teacher and a lawyer. They also had the unsworn
statement by Glenn.
As the Ohio Supreme Court found, many of the
aggravating and mitigating factors in Ohio Rev. Code
$2929.04(B) were not pertinent to this case. Of those factors
which were pertinent, the jury knew the circumstances of the
offense and the history, character and background of Glenn.
Even though the information pertained to his earlier life,
there was no evidence to suggest any significant changes in
his later life. After all, he was only nineteen years old at the
time of the offense. The Ohio Supreme Court found that:
Appellant also introduced evidence as to his poor
environment and background. Appellant was raised in
an environment of poverty. He received little attention
from his natural father. He had been truant and had
educational and disciplinary problems as a boy.
Appellant had extensive contact with his church when he
was younger. He also required special education
classes.
Glenn, 504 N.E.2d at 711.
20
Although the majority is concerned with the fact that
defense counsel had not spoken to any of Glenn’s brothers
and sisters, nor examined his medical records or mental
health counseling records, nor talked to his probation officer,
nor examined the probation officer’s records, it appears that
most of the information they would have gamered [sic] from
those sources would only have corroborated the information
presented to the jury in the reports of Drs. Ramani and
Siddall and in the presentence report. The jury had
information that Glenn came from a poor environment, was
retarded and was in special education classes. Moreover,
had counsel called the defendant’s mother and siblings, their
testimony may have been detrimental to Glenn’s case. For
instance, Glenn claims that his mother beat him and the
siblings regularly, but she probably would not have admitted
that in her testimony. Perhaps her children would have
testified about the beatings, but the post-conviction decision
by the Ohio Court of Appeals indicated that the family
members had signed affidavits containing negative
information about Glenn.
Dr. Tanley, the neuropsychiatrist who examined Glenn
in the post-sentence proceedings, corroborated the I.Q.
finding from Ramani’s report. Dr. Ramani also reported that
Glenn used to hit his head against the wall and was
“nervous.” The theory expounded by Dr. Tanley and
another expert, referred to in the majority opinion, that
Glena’s brain damage might have resulted from a surgical
procedure performed on Glenn’s mother when she was under
general anesthesia in her pregnancy seems also to be
speculative. There is no physician yet who has stated that it
was within reasonable medical certainty that such a surgical
procedure on the mother caused any permanent problems to
Glenn.
I do not understand how the evidence of brain damage
21
is more mitigating than the fact that Glenn was retarded. Dr.
Siddall concluded that the offense was not the product of
retardation or any brain disease or other mental illness.
Certainly, Dr. Tanley had a contrary view. The
requirements of Strickland do not mandate that an attorney
search out all potential favorable psychiatrists and
psychologists, in order to find the one who would testify best
for his clients.
I do not think that it is significant that defense counsel
first asked the court for a medical examination of the
defendant under Ohio Rev. Code §2929.024, but the experts
were later appointed under Ohio Rev. Code 2929.03(D)(1)
and 2947.06. Section 2929.024 is a statute providing for
expert services for indigents in general and applies to pre-
trial, trial and post-trial services. However, §2929.03(D)(1)
“applies to all capital defendants, whether indigent or not.”
State v. Esparza, 529 N.E.2d 192, 195 (Ohio 1988), cert.
denied, 490 U.S. 1012 (1989). Once the defendant chooses
to undergo the mental examinations, he risks the jury’s
knowledge of the conclusions of the experts under §2947.06
in a death case. Id. “There is no constitutional infirmity in
providing the defendant with such an option.” State v. Buell,
489 N.E.2d 795, 808 (Ohio 1986). Assuming that the court
had authorized the appointment of Drs. Ramani and Siddall
under §2929.024, and defense counsel did not like the
conclusions of the two experts, what where they to do?
Would they ask the court to authorize two others?’ Or would
they have been forced to have put into evidence what the
’The trial court would have likely denied the request. See
Esparza, 529 N.E.2d at 195 (“Appellant was not entitled to a
‘rebuttal’ . . . mental examination prepared by a second
psychologist or psychiatrist of his own choosing also at state
expense.”).
22
experts had said? Had they decided against using the experts
opinions at all, and the defendant would have been sentenced
to death, we would be in the same position here, with Glenn
on appeal asserting ineffective assistance of counsel because
appointed counsel at trial failed to introduce into evidence the
expert reports of Drs. Ramani and Siddall.
In the record are found two pretrial evaluations from Dr.
Harvey Kayne, a clinical psychologist, and Dr. Anil Nalluri,
a psychiatrist, concerning a possible insanity defense and
Glenn’s competency to stand trial. Neither of these reports
was presented to the jury in mitigation during the sentencing
phase of the trial. Yet they probably could have been
introduced by defense counsel, and they would have
corroborated the reports of Drs. Rarani and Siddall. Had
they been read to the jury in the sentencing phase, present
counsel no doubt would have asserted ineffective assistance
of counsel, as the reports indicate that Glenn was competent
to stand trial and did not suffer from a mental illness,
although he had “borderline intellectual functioning.”
I find no prejudice here. It does not appear to me that
there were any material mitigating factors that were not
introduced, except through experts who had been found after
the trial who would have testified favorably for the defense.
I do not have grave doubt concerning prejudice under O’Neal
v. McAninch, 115 S.Ct. 992 (1995), so I would affirm.
Z
ie
23
DOWD, J. Filed: 4/28/93
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN GLENN, :
Plaintiff, - CASE NO. 5:91CV2047
Vv. -
ARTHUR TATE, JR.,_ : JUDGMENT ENTRY
Defendant. :
For the reasons set forth in the Memorandum Opinion
filed contemporaneously with this Judgment Entry, IT IS
THEREBY ORDERED, ADJUDGED and DECREED that:
F The motion to alter or amend the judgment of
April 8, 1993 (Docket No. 73) is granted insofar as the
factual errors described in § I(A) are acknowledged and
corrected.
The statement on page 2 of the April 8, 1993
Memorandum and Opinion which declares:
Immediately after the shooting, petitioner opened the
rear door of the Sheriff’s cruiser where Robert was
sitting in the back seat, released Robert, and the two
fled in petitioner’s car.
is stricken and replaced by the following statement:
Robert Glenn and the petitioner fled the scene in
petitioner’s car.
The statement on page 4 which declares:
24
John Glenn was nineteen years old on the day of
the shooting. Evidence produced at trial established that
petitioner had been raised in a dysfunctional home. His
mother, prone to anger and violence, subjected petitioner
and his siblings to routine beatings. The only male
figure petitioner was exposed to during his childhood
was his stepfather, who introduced the Glenn children to
alcohol and marijuana. Petitioner’s family was also very
poor. The family often went without the basic
necessities, such as heat and other utilities.
is corrected by striking the phrase “at trial” and replacing it
with the phrase “during the lengthy post conviction hearing.”
In all other respects, the motion to alter or amend the
judgment of April 8, 1993 is denied.
rf The petitioner’s motion for an evidentiary hearing
(Docket No. 62) is denied.
3. The petitioner’s application for stay of
proceedings (Docket No. 63) is denied.
4. The petition for habeas relief is denied and the
stay of execution previously granted remains in effect until
further order of the Court.
IT IS SO ORDERED.
David D. Dowd, Jr.
U.S. District Judge
DOWD, J.
25
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
John Glenn, :
Plaintiff, : CASE NO. 5:91CV2047
v. :
Arthur Tate, Jr., : MEMORANDUM OPINION
Defendant. =:
The court published a 102 page opinion accompanied
with additional appendices on April 8, 1993 in this capital
habeas case. On April 22, 1993 the petitioner filed a 38
page motion to alter or amend the judgment (Docket No.
73).
The court finds that Ground A of the Motion to Alter or
Amend is well taken and that the remaining grounds are
without merit. The court will discuss the several grounds
advanced in seriatim.
A. THE _COURT’S OPINION _ CONTAINS
FACTUAL ERRORS.
(1) The court’s Memorandum Opinion of
April 8, 1993 declares on the second page as follows:
‘The court devoted considerable time to the resolution of this
case. The court presently has the time to respond to the motion
and will not await a response from the respondent.
26
Immediately after the shooting, petitioner opened the
rear door of the Sheriff’s cruiser where Robert was
sitting in the back seat, released Robert, and the two
fled in petitioner’s car.
The petitioner accurately points out that there is an
absence of testimony in the record to the effect that the
petitioner’s half brother Robert Glenn was freed from the
Sheriff’s cruiser by the petitioner. However, the evidence
does lend itself to the interpretation that the petitioner and his
stepbrother Robert Glenn fled the scene in the petitioner’s
car. Accordingly, the challenged sentence is stricken from
the record and replaced by the following sentence.
Robert Glenn and the petitioner fled the scene in
petitioner’s car.
(2) The court’s Memorandum Opinion of April 8,
1993 contains on the fourth page the following paragraph:
John Glenn was nineteen years old on the day of the
shooting. Evidence produced at trial established that
petitioner had been raised in a dysfunctional home. His
mother, prone to anger and violence, subjected petitioner
and his siblings to routine beatings. The only male
figure petitioner was exposed to during his childhood
was his stepfather, who introduced the Glenn children to
alcohol and marijuana. Petitioner’s family was also very
poor. The family often went without the basic
necessities, such as heat and other utilities.
Petitioner’s counsel is correct in their observation that
there was no evidence produced “at trial” as described in the
paragraph. Rather, the testimony developed during the
lengthy post conviction hearing supports the challenged
paragraph. Accordingly, the challenged paragraph is
27
modified by striking the phrase “at trial” and substituting the
phrase “during the lengthy post conviction hearing.”
B. THE COURT’S HARMLESS ERROR
ANALYSIS FOR THE 7TH AND 15TH
GROUNDS FOR RELIEF JS FLAWED.
As for the 15th ground, the court did not indicate that
the error was harmless, but that the judge’s curative
instruction erased the error.
As for the 7th ground for relief, the court declares the
error was harmless in light of the nature of the homicide--a
cold, calculating decision to kill the law enforcement officer
engaged in the task of transporting the petitioner’s
stepbrother for medical care as a means to perfect the escape
of petitioner’s stepbrother. In sum, the nature of the
homicide, in this court’s view, rendered the error in
introducing a report which described charged, but unproven
criminal conduct, harmless beyond a reasonable doubt.
C. THE COURT INACCURATELY INVOKED
The court addressed and ruled upon each of the barred
claims on the merits in the event it should be determined that
the court erred in finding a procedural bar.
D. THE COURT FAILED TO DISCUSS OR
CONSIDER MUCH OF THE MITIGATING
EVIDENCE THAT THE PETITIONER
INTRODUCED IN POST CONVICTION.
The court read the entire transcript of the post conviction
28
hearing. The court is unaware of a requirement that it
recount all of the testimony it reads and considers. The
court addressed at length Ground Number One which
challenged the effectiveness of the petitioner’s trial counsel
during the sentencing phase. The court determined that
petitioner had failed to establish the second prong of the
Strickland v. Washington, 466 U.S. 668 (1984), requirement
to establish ineffective assistance of counsel. The court finds
that Strickland does not require the court to describe in great
detail all the evidence presented by the petitioner in support
of the proposition that his trial counsel’s performance was so
deficient as to establish the first prong of the Strickland test.
E. THE COURT FAILED TO CONSIDER THE
CONSEQUENCES OF THE DENIAL OF
INDEPENDENT EXPERT ASSISTANCE AT
THE PENALTY PHASE OF THE TRIAL.
The hypothesis for the sixth ground for relief is that the
mental evaluations done in the sentencing phase of the case
were not even “minimally adequate.” Now the petitioner’s
counsel has changed the thrust of the sixth ground for relief
to a “denial of independent expert assistance,” a claim not
heretofore advanced either at the trial level nor during these
proceedings.”
7As indicated at page 72 of the Court’s April 8, 1993
Memorandum Opinion, ORC §2929.03(D)(1) provides that after
the guilt phase of the trial has been completed and upon request of
the defendant, a mental examination is to be made and the report
supplied to the jury during the sentencing phase. The claim is now
advanced at this late stage that the prosecution was the only agency
to supply Doctors Ramani and Siddall with information concerning
the petitioner and that therefore such an imbalance of a supply of
information about the petitioner constituted a denial of independent
expert assistance.
29
PETITIONER TO CONDUCT DISCOVERY.’
The petitioner first indicated a desire to conduct
discovery in support of its substantive claims some fifteen
months after the petitioner was filed. The court has not
permitted discovery. Initially, the petitioner indicated that it
believed the court should rule on the procedural bar issues
and then permit discovery if any ground was denied on that
basis. The court ruled on the merits of all grounds even
though it found a procedural bar for ten of the 27 grounds
advanced.
Now, at this late date the petitioner indicates that he
wishes discovery on eight grounds, three, twelve, fifteen,
sixteen, nineteen, twenty four, twenty five and twenty seven.
As to six of the eight grounds, the petitioner seeks discovery
by way of deposing the jurors without advancing any
authority for the proposition. Nor does the request address
the fact that both the Ohio Rules of Evidence and the Federal
Rules of Evidence, Rule 606(B) prohibit such an inquiry. As
*At the conclusion of the oral arguments conducted on January
27, 1993, counsel for the petitioner moved for in camera
proceeding to be conducted out of the presence of counsel for the
respondent. The court granted the motion and the transcript of
that in camera proceeding has been filed with the Clerk under seal.
(Docket No. 66).
The court also filed a memorandum opinion under seal. The
memorandum opinion under seal addresses and resolves a
discovery motion made by petitioner’s counsel during the in
camera proceeding.
30
to ground three dealing with the possibility that systematic
exclusion of blacks took place in either the grand jury setting
in Mahoning County where the indictment was returned or in
Portage County where the trial was conducted, no argument
or good cause is shown why the court should permit this type
of discovery at this time. As for ground 24, the petitioner
claims that he should now be permitted to question the
scientific evidence advanced by the prosecution in support of
the indictment without any demonstration that such a
discovery expedition is appropriate for the first time during
habeas review.’ In support of this late motion for discovery,
the petitioner advances the affidavit of Kenneth Siegesmund,
Ph.D., dated April 19, 1993 in which Dr. Siegesmund opines
that because the BCI criminalists Jeffrey Lynn and William
Wilson failed to testify as to the /evels of barium, antimony
and lead, it is not possible to evaluate the conclusions of
Lynn and Wilson with respect to petitioner’s handling and
firing of a weapon contemporaneous with the homicide. No
explanation’
Il. THE PETITIONER’S JANUARY _ 27, 1993
*In support of this late motion for discovery, the petitioner
advances the affidavit of Kenneth Siegesmund, Ph.D., dated April
19, 1993 in which Dr. Siegesmund opines that because the BCI
criminalists Jeffrey Lynn and William Wilson failed to testify as to
the /evels of barium, antimony and lead, it is not possible to
evaluate the conclusions of Lynn and Wilson with respect to
petitioner’s handling and firing of a weapon contemporaneous with
the homicide. No explanation is offered by counsel for the
petitioner for the delay from the filing of the petition for habeas
relief on October 10, 1991 to the presentation of Dr. Siegesmund’s
April 19, 1993 affidavit.
31
22, 1993 MOTION TO ALTER OR AMEND
THE JUDGMENT.
The motion to alter or amend challenges the court’s
failure to grant the petitioner an evidentiary hearing to
develop the factual basis for his grounds for relief.
In support of ground G to vacate the court’s judgment of
April 8, 1993, the petitioner contends that he is entitled to an
evidentiary hearing. The Court scheduled oral argument for
January 27, 1993 and conducted the same. On the day for
the argument, counsel for the petitioner filed a motion for an
evidentiary hearing. (Docket No. 62). The primary
contention for the proposition that the petitioner is entitled to
an evidentiary hearing, as advanced in the January 27, 1993
motion, was for the purpose of curing any procedural
defaults. However, the court has already indicated that it
proceeded to address the ten grounds for which it found a
procedural default and decided them on the merits.
The second reason advanced for the evidentiary hearing
is less clear. It appears however that the motion for an
evidentiary hearing is tied to the discovery that the petitioner
now wishes to undertake with the members of the jury to
demonstrate that the instructions of the court and other
rulings in some fashion denied the petitioner a fair trial and
insured his death penalty.
Townsend v. Sain, 372 U.S. 293 (1963) teaches when an
evidentiary hearing must be granted, i.e. if:
(1) the merits of the factual dispute were not resolved
in the state court; or
32
(2) the state factual determination is not fairly
supported by the record; or
(3) the fact finding procedure employed by the state
court was not adequate to afford a full and fair hearing; or
(4) there is a substantial allegation of newly
discovered evidence; or
(5) the material facts were not adequately developed
at the state court hearing; or
(6) for any reason it appears that the state trier of
fact did not afford the habeas applicant a full and fair
hearing.
The petitioner’s motion for an evidentiary hearing, filed
on January 27, 1993, some fifteen months after the petition
for habeas relief was filed is enlarged by the April 22, 1993
motion to alter or amend the judgment and identifies 16
grounds for which he seeks an evidentiary hearing as
follows:
l. Ground 3--Transfer of trial to county with
virtually no black population.®
yA Ground 4--(Trial judge allowed experts to render
*There is no factual dispute about the fact that the trial was
moved to neighboring Portage County with a substantially smaller
percentage of blacks in the jury pool because of a smaller
percentage of blacks living in Portage County compared to
Mahoning County.
33
opinions on existence or nonexistence of mitigating factors).’
ai Ground 5--(Trial court improperly
overemphasized the importance of the presentence report and
mental evaluation to the Jury).'
4. Ground 9--(Trial court’s failure to instruct jurors
that mercy was a valid sentencing consideration).’
a Ground 10--(Penalty Phase created an
unconstitutional presumption in favor of death).'°
6. Ground | 1--(Improper penalty phase instructions
‘There is no factual dispute about the content of Dr. Ramani’s
report and the concluding declaration about mitigating
circumstances. See page 67 of the April 8, 1993 opinion.
"There is no factual dispute about the content of the trial
court’s comments to the jury with respect to the pre-sentence
reports and the mental evaluations. See page 70-72 of the April
8, 1993 opinion.
"There is no factual dispute about the trial court's refusal to
submit to the jury, as requested by petitioner’s trial counsel, an
instruction that “mercy” was a valid sentencing consideration. See
pages 76-82 of the April 8, 1993 opinion.
“There is no factual dispute about the text of the trial court’s
instruction during the sentencing phase of the trial. See pages 24-
26 of the April 8, 1993 opinion.
34
on Mitigation Factors)"
7. Ground 12--(Jurors use of Dictionary in Penalty
Phase Deliberations).'”
8. Ground 15--(Two state’s witnesses testified that
petitioner had been in jail before).”’
9. Ground 16--(The jury was not instructed to find
unanimously every element of the Capital Offense)."’
10. Ground 17--(Definition of reasonable doubt, used in both
'There is no factual dispute about the text of the court’s
instructions during the sentencing phase as they related to a listing
of the statutory mitigating factors. See pages 26-27 of the April
8, 1993 opinion.
There is no factual dispute that the jurors asked for and
received a dictionary during the sentencing phase deliberations.
'5There is no factual dispute that two of the state’s witnesses,
during cross-examination, indicated that the petitioner had been
incarcerated at a previous time. See pages 37-38 of the April 8,
1993 opinion.
“There is no factual dispute as to the text of the court’s
instructions to the jury on the issue of whether the defendant had
engaged in an aggravating circumstance. The effect of the
instruction, as an issue of law, is discussed at pages 38-43 of the
April 8, 1993 opinion.
FSR TRY Poet at
f
i
4
ba
Ps
¥
ag
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Y
Te
35
trial and penalty phases, diluted the state’s burden of
proof).’°
11. Ground 18--(Prosecutor’s Dilution of Reasonable doubt
Standard in Trial Phase Closing argument).'®
12. Ground 19--(Court Reporter’s re-reading of Portions of
Testimony of Key state witness){.]'’
13. Ground 23--(Conviction based on __ insufficient
evidence). '*
14. Ground 24--(Denial of Petitioner’s Right to
There is no factual dispute about the text of the court’s
instruction as it pertained to a definition of reasonable doubt. See
pages 29-30 of the April 8, 1993 opinion.
‘There is no factual dispute about the content of the
prosecutor’s’s closing argument. See pages 30-31 of the April 8,
1993 opinion.
'’There is no factual dispute about what portion of the
testimony of the witness Otis Simmons, Jr. was re-read to the jury.
See pages 31-32 of the April 8, 1993 opinion.
"There is no factual dispute about what evidence was
presented in support of the indictment. It is a question of law as
to whether that evidence was sufficient to support the conviction.
See discussion of this issue at pages 43-47 of the April 8, 1993
opinion.
36
Scientific Experts).’*
15. Ground 25--(Ineffectiveness of Counsel During
Trial Phase).”
‘There is no claim advanced that the petitioner’s trial
counsel requested, but was denied access to or the appointment of
scientific experts to aid in the defense of the petitioner at the trial
with respect to the scientific evidence available to the prosecution.
Thus there is no factual dispute that would warrant an evidentiary
hearing.
“During the post conviction hearing, the primary focus
was on the petitioner’s claim that his appointed counsel denied him
the effective assistance of counsel. However, no claim was raised
that their failure to seek the appointment and assistance of their
own experts on the scientific evidence constituted a denial of the
effective assistance of counsel. Now after the court published its
April 8, 1993 opinion denying the writ, the petitioner for the first
time advances the April 19, 1993 affidavit of Dr. Siegesmund (see
footnote #4), apparently for the proposition that the petitioner was
denied the effective assistance of counsel because the petitioner’s
counsel failed to raise questions as to the levels of barium,
antimony and lead.
The only basis for granting an evidentiary hearing on this
issue would be if the Dr. Siegesmund affidavit rises to the level of
a “substantial allegation of newly discovered evidence”. Upon
reflection, the court concludes that the Dr. Siegesmund affidavit
does not constitute “newly discovered evidence.” Rather, it is the
expression of an opinion that the testimonial conclusions of Lynn
and Wilson can not be properly evaluated without knowing the
determined levels of barium, antimony and lead. Moreover,
: ,___U.S. __, 112 S.Ct. 1715 (1992),
teaches that a petitioner’s failure to develop a claim in state court
proceedings will be excused and evidentiary hearing mandated only
if he can show that a fundamental miscarriage of justice would
result from failure to hold a federal evidentiary hearing. The
Siegesmund
One Ce eRe + Ig
Oath wu
WET Ef
37
16. Ground 26--(Aggravating Circumstance was
unconstitutionally Vague).”!
In support of the motion for an evidentiary hearing, the
petitioner notes that a study is being done on the Ohio
Capital Jury Instructions, apparently to demonstrate the
comprehensibility of Ohio’s capital sentencing instruction
currently in progress. In support of the application for the
evidentiary hearing, the affidavit of Randy Ashburn is
attached to the petitioner’s motion and it states in its entirety
as follows:
I, Randy Ashburn, being duly sworn and deposed, do
hereby state the following:
1) I am an attorney licensed to practice law in the
State of Ohio.
2) I am an Assistant Public Defender employed by
the Ohio Public Defender Commission.
3) As part of my duties, I oversee the compilation
of statistics regarding capital prosecutions in the State of
Ohio.
4) 1 am currently overseeing a project involving an
affidavit, viewed in a light most favorable to the petitioner, fails
to make a showing that a fundamental miscarriage of justice will
result from a failure to hold an evidentiary hearing.
*'Thereis no factual dispute with respect to the statutory
definitions of a “peace officer” and the issue of whether the
aggravating circumstance was unconstitutionally vague is a
question of law, not fact.
38
in-depth analysis of Ohio’s capital sentencing jury
instructions.
5) I am currently working with numerous experts,
including a linguist, a professor of criminal justice, a social-
psychologist, and numerous graduate students in regard to
this project.
6) The goal of this project is to analyze the
comprehensibility of sentencing instructions given to capital
jurors in Ohio, in a manner similar to the study conducted by
Professor Zeisel in United States ex rel. Free v. Peters, 806
F.Supp. 705 (N.D. Ill. 1992), a copy of which is attached
to this Affidavit as “Exhibit A.”
7) I have been working on the development of this
project since October, 1992, and obtained financing approval
for the project in March, 1993. It is contemplated that the
study will be completed by October, 1993.
8) The survey component of this project requires
first putting together the survey questionnaires, and then
assuring that the questions are not biased. Next, the
surveyors will have access to a reasonably large sample of
prospective jurors in a major metropolitan area of Ohio. The
survey will then be performed, and finally an in-depth
statistical analysis of the results will be made.
9) The linguistic component of this project is a
separate endeavor, requiring a detailed examination of the
grammatical, syntactic, and lexicological composition of the
instructions themselves. It is anticipated that both portions
of this project will be completed by October, 1993.
10) Similar studies in other states have shown
significant problems with the comprehensibility of capital
39
sentencing instructions, thus failing to meet federal
constitutional requirements for imposition of the death
penalty.
11) I was made aware by Petitioner Glenn’s counsel,
Jane Perry and William Lazaroff, that they felt that the
research currently being conducted would be of great
importance in regard to various jury instruction issues raised
in Petitioner Glenn’s habeas corpus action.
12) Preliminary results that I have received in regard
to the project currently in progress in Ohio indicate the
identical problems with standard jury instruction as in other
states, several of which I have been informed were given in
Petitioner Glenn’s case and raised in his petition for habeas
corpus relief.
The court is of the view that none of the grounds for
which the petitioner seeks an evidentiary hearing fall within
the Townsend test that mandates an evidentiary hearing.
Moreover, the validity of jury instructions is a matter of iaw.
not fact, and a study of the comprehensibility of the capital
jury instructions will inevitably constitute only an opinion
that might assist in a refinement of those instructions for the
future, but will not constitute a basis in law for declaring that
the Ohio capital jury instructions used in this case offend the
Constitution.
The petitioner’s motion for an evidentiary hearing as set
forth in the motion of January 27, 1993 (Docket #62) and as
expanded upon his motion to alter or amend is denied.
Ill. THE PETITIONER’S JANUARY 27, 1993
APPLICATION FOR A STAY OF
PROCEEDINGS TO ALLOW
INVESTIGATION AND _ DISCOVERY _ OF
No good cause having been shown, including the
information revealed to the court during the in camera
proceeding conducted on January 27, 1993, the application
for a stay is denied.
DOWD, J. Filed: 4/8/93
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN GLENN,
Plaintiff, CASE NO. 5:91CV2047
Vv
ARTHUR TATE, JR.,_ : JUDGMENT ENTRY
Respondent. :
For the reasons set forth in the Memorandum Opinion
filed contemporaneously with this Judgment Entry, IT IS
HEREBY ORDERED, ADJUDGED and DECREED that the
petition for habeas corpus relief is denied.
The stay of execution of the death sentence previously
granted by this Court remains in effect until further order of
the Court.
David D. Dowd, Jr.
U.S. District Judge
42
DOWD, J.
UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
JOHN GLENN,
Plaintiff, CASE NO. 5:91CV2047
v. :
ARTHUR TATE, JR., — : MEMORANDUM OPINION
Defendant.
I. INTRODUCTION’
This is an action brought pursuant to 28 U.S.C. §2254
wherein the petitioner John Glenn seeks habeas corpus relief
from his conviction of aggravated murder and his death
sentence upon the premise that the determinations of his guilt
and death sentence violate the United States Constitution.
On October 22, 1981 petitioner John Glenn shot and
killed Deputy Sheriff John Litch, Jr. in an attempt to free his
incarcerated step-brother Robert Glenn.
On the day of the shooting, Robert Glenn was an inmate
at the Mahoning County Jail. Robert suffered from a leg
wound and was taken from time to time from the jail to a
local hospital for routine treatment. Prior to his scheduled
hospital visit on the day of the shooting, the two half
brothers conspired to free Robert from custody while he was
being transported to the hospital. Deputy Litch was assigned
"For the convenience of the reader, the Court attaches
Appendix D which sets forth the page numbers where each of the
twenty seven grounds for relief advanced by the petitioner are
decided.
—— ieee
I
43
to transport Robert to the hospital. While en route,
petitioner, driving a turquoise and black Buick, struck
Officer Litch’s vehicle from the rear. Officer Litch exited
his cruiser and approached petitioner and was shot in the
chest with a sawed off shotgun. Two off duty firemen
observed the accident [sic] and the subsequent shooting and
sought immediate emergency care, but Deputy Litch died
almost instantly.
Immediately after the shooting, petitioner opened the
rear door of the sheriff’s cruiser, where Robert was sitting
in the back seat, released Robert, and the two fled the scene
in petitioner’s car. Hours later petitioner was arrested at the
home of his girlfriend, Alseen Lanier. Lanier testified at
trial that petitioner had told her that he had shot.a police
officer while “escaping” his half-brother Robert Glenn.
At almost the same moment that petitioner had fired the
shot that ended Deputy Litch’s life, an acquaintance of
petitioner, Otis Simmons, was stopped in the Youngstown
area by a police officer for a traffic violation. While sitting
in the police cruiser waiting for the officer to write him a
ticket, the officer heard the call over the police radio
relaying the information about the shooting death of Deputy
Litch. Otis informed the officer that earlier in the day,
petitioner had tried to borrow a gun and car from him. Otis
also told the officer that petitioner had told him of his plans
to “escape” his step-brother Robert Glenn. The officer
proceeded to relay this information to his dispatcher, and law
enforcement officers relied on this information in arrest the
petitioner later that evening.
Both Lanier and Otis Simmons testified at petitioner’s
trial. In addition to their incriminating testimony, the
prosecution introduced a chemical test which revealed that
petitioner had significant amounts of barium on his hands
44
consistent with the recent use of a weapon. The prosecution
also introduced plaster scrapings found in petitioner’s car
which matched the plaster on Robert Glenn’s leg cast, and a
pair of prison overalls found in the back seat of the car that
were similar to the ones worn by Robert Glenn on the day of
the shooting.
Deputy Sheriff Litch was employed full time as a city
fireman, and in addition devoted at least five hours of his
time each week to the County of Mahoning, without
compensation, in the capacity of an auxiliary deputy sheriff.”
On the day of the shooting, Litch was driving a marked
sheriff’s cruiser, and was dressed in ihe traditional deputy
sheriff’s uniform.
John Glenn was nineteen years old on the day of the
shooting. Evidence produced at trial established that
petitioner had been raised in a dysfunctional home. His
mother, prone to anger and violence, subjected petitioner and
his siblings to routine beatings. The only male figure
petitioner was exposed to during his childhood was his
stepfather, who introduced the Glenn children to alcohol and
marijuana. Petitioner’s family was also very poor. The
family often went without the basic necessities, such as heat
and other utilities.
The petitioner’s appointed trial counsel obtained a pre-
trial psychiatric examination of the petitioner to determine if
he was competent to stand trial. Dr. Anil Nalluri was
appointed to conduct the examination. His report indicated
that petitioner had borderline intellectual and social
functioning, but was competent to stand trial. Petitioner’s
*The prosecution contended that Litch was acting as a
peace officer as that term is defined under Ohio law.
Le
45
low IQ placed him in the learning disabled category.
Il, HISTORY OF THE CASE.
The procedural history of this case spans over a period
of eleven years. Petitioner was tried and convicted of
aggravated murder with an aggravating circumstance’ on
August 20, 1982. The trial was conducted in Portage County
rather than Mahoning County.‘ The guilt phase of the trial
lasted nearly three weeks.* The penalty phase began on
September 1, 1992 and the jury’s recommendation of a death
sentence was delivered on September 3, 1982. Pursuant to
the statutory provisions regarding capital sentences, the trial
court approved the recommendation and sentenced the
defendant to death.
Petitioner subsequently filed a direct appeal to the Ohio
Eleventh District Court of Appeals. On appeal, petitioner
raised the following arguments:
A. Ohio’s Death Penalty statutes, O.R.C.
§§2903.01, 2929.02, 2929.22, 2929.023, 2929.04, 2929.05,
and 2929.06 are unconstitutional and in violation of the sixth,
“The aggravating circumstance the jury found was the
killing of a peace officer. O.R.C. §2929.04(A)(6).
*An attempt was made to seat a jury in Mahoning County.
The attempt lasted over twenty days but was unsuccessful,
apparently because of the notoriety that the killing created in
Mahoning County.
*The guilt phase of the trial in Portage County began
on August 2, 1992 and the jury returned its verdict of guilt on
August 20, 1982.
46
eighth and fourteenth amendments.
B. The trial court committed prejudicial error in
overruling defendant’s motion to dismiss for lack of
jurisdiction or in the alternate for amendment to the
indictment by striking therefrom the specification under count
one of the indictment.
C. The trial court abused its discretion to the
prejudice of defendant in restricting the manner and subject
matter to which questions on voir dire could be put to the
prospective jurors.
D. The trial court abused its discretion when it
denied defendant’s objection to the entire array of jury
members when the record disclosed that no member of a
minority race was called as a part of the jury panel.
E. The jury’s verdict is against the manifest weight
of the evidence.
F, The trial court committed prejudicial error by
denying defendant’s motion for a new trial and for mistrial
after a prosecution witness volunteered testimony that was
prejudicial to the defendant’s rights.
G. The trial court committed error prejudicial to the
defendant by refusing to grant defendant’s motion for a new
trial during closing arguments on the guilt question.
H. The trial court committed error prejudicial to the
defendant by its refusal to grant defendant’s motion to
sequester the jury during the period of time between its
verdict of guilty and the hearing on penalty.
I, The trial court committed error prejudicial to
47
defendant’s rights in the hearing on mitigation by its refusal
to admit into evidence, defendant’s mitigation exhibits A, B,
C, and D and by its refusal to permit testimony of
defendant’s witness in mitigation.
J. The trial court committed error prejudicial to the
defendant’s right by overruling defendant’s motion to strike
certain prejudicial language from the presentence report and
the medical examination report.
K. Mr. Glenn’s death sentence was inappropriate and
disproportionate, and therefore violative of the eighth and
fourteenth amendments to the United States Constitution and
Section 9, Article I of the Ohio Constitution.
Petitioner’s appeal was denied on all counts. State v. Glenn,
Portage App. No. 1286 (Feb. 19, 1985).
Petitioner appealed the Court of Appeal’s decision in the
Ohio Supreme Court. Specifically, petitioner raised the
following claims before the Ohio Supreme Court:
A. The trial court committed prejudicial error in
overruling defendant's motion to declare Ohio Revised Code
Sections 2903.01, 2929.02, 2929.021, 2929.022, 2929.023,
2929.03, 2929.04, 2929.05 and 2929.06 effective October
19, 1981, unconstitutional and in violation of the United
States Constitution, Amendments VI, VIII, and XIV, and the
Ohio Constitution, Article I, Sections 9, 2 and 16.
B. The trial court committed prejudicial error to the
right of the defendant in overruling defendant’s motion to
dismiss for lack of jurisdiction or in the alternate for
amendment to the indictment by striking therefrom the
specification under count one of the indictment.
48
c. The trial court abused its discretion to the
prejudice of defendant in restricting the manner and subject
matter to which questions on voir dire could be put to the
prospective jurors.
D. It was error prejudicial to the defendant’s right
for the court to deny defendant’s challenge to the entire array
of jury members when the record disclosed that no member
of a minority race was called as a part of the panel.
E. The trial court committed prejudicial error by
denying defendant’s motion for a new trial and for mistrial
after a prosecution witness volunteered testimony that was
prejudicial to the rights of this defendant.
F, The trial court committed error prejudicial to the
defendant’s right in failing to grant defendant’s motion for a
new trial upon the misconduct of the prosecuting attorney
during closing arguments on the guilt question.
G. It was prejudicial error for the trial court to
overrule defendant’s motion for directed verdict of acquittal.
The jury’s verdict is against the manifest weight of the
evidence.
H. The trial court committed error prejudicial to the
defendant by its refusal to grant defendant’s motion to
sequester the jury during the period of time between its
verdict of guilty and the hearing on penalty.
I, The trial court committed error prejudicial to
defendant's rights in the hearing on mitigation by its refusal
to admit into evidence defendant’s mitigation exhibits A, B,
C and D and by its refusal to permit testimony of defendant's
witness in mitigation.
ree es
EE Mert
49
J. The trial court committed error prejudicial to the
defendant’s right by overruling defendant’s motion to strike
certain prejudice language from the presentence report and
the medical examination report.
K. Mr. Glenn’s death sentence was inappropriate and
disproportionate, and therefore violative of the Eighth and
Fourteenth Amendments to the United States Constitution and
Section 9, Article I of the Constitution.
The claims were denied. The petitioner’s conviction and
sentence were affirmed. State v. Glenn, 28 Ohio St.2d 451
(1986).
Petitioner then sought a rehearing in the Supreme Court
of Ohio on the following claims:
A. Whether at the penalty phase of trial, the trial
court properly excluded as hearsay a videotape describing
Mr. Glenn’s life.
B. Whether the Ohio Supreme Court properly
conducted the statutorily required independent review of Mr.
Glenn’s death sentence pursuant to Ohio Revised Code
Section 2929.05.
Upon dismissal of his motion, petitioner filed a supplemental
motion for rehearing on the following issue:
A. Whether the court should rehear and reconsider
the case because it had insufficient time, due to end of term
workload, for adequate consideration of Mr. Glenn’s appeal.
This motion was also dismissed by the Ohio Supreme Court.
Petitioner then sought a writ of certiorari before the
50
United States Supreme Court. In his petition, Mr. Glenn
raised the following grounds for relief:
A. Whether the Ohio Supreme Court failed tc
perform the statutorily required independent review of the
appropriateness of Mr. Glenn’s death sentence.
B. Whether the Ohio Supreme Court erred in
applying a harmless error analysis when the sentencer in Mr.
Glenn’s case considered an improper non-statutory
aggravating circumstance, and mitigating factors did exist.
G. Whether the Ohio Supreme Court has failed to
provide clear and consistent rulings concerning the
admissibility of mitigating evidence.
Mr. Glenn’s petition was denied. Glenn v. Ohio, 482 U.S.
931 (1987); petition for rehearing denied 483 U.S. 1044
(1987).
Petitioner next filed a state post-conviction petition. At
the post-conviction level, petitioner raised numerous grounds:
A. The judgment against petitioner is void or
voidable because jurors were incorrectly led to believe the
responsibility for determining the appropriateness of the
death sentence lay elsewhere.
B. The judgment against petitioner is void or
voidable because the trial court failed to excuse for cause a
member of the jury who stated that he would automatically
impose the death sentence upon a finding of guilty.
tol The judgment against petitioner is void or
voidable because he was denied the effective assistance of
counsel at the guilt phase of his capital trial.
51
D. The judgment against petitioner is void or
voidable because he was denied the effective assistance of
counsel at the penalty phase of his capital trial.
E. The judgment against petitioner is void or
voidable because of numerous errors and omissions in the
trial court’s penalty phase charge to the jury.
F. The judgment against petitioner is void or
voidable because, outside the presence of counsel, the jurors
were provided with a dictionary for use in their penalty phase
deliberations.
G. The judgment against petitioner is void or
voidable because five unadjudicated offenses were included
in the presentence report which both the jurors and trial court
considered at the penalty phase.
H. The judgment against petitioner is void or
voidable because the trial court gave no weight to relevant
mitigating evidence.
I. The judgment against petitioner is void or
voidable because he was denied the effective assistance of
counsel on his direct appeals as of right.
i The judgment against petitioner is void or
voidable because the appellate courts failed to review the -
complete record of his capital case as required by law.
Petitioner’s post-conviction petition was denied on June 21,
1989.
The denial of post-conviction relief was affirmed by the
Ohio Court of Appeals on September 21, 1990.
Subsequently, it denied reconsideration of its ruling on
52
December 7, 1990.
The Ohio Supreme Court dismissed the appeal from the
Ohio Court of Appeals on February 20, 1991. See State v.
Glenn, 57 Ohio St.3d 723. Certiorari was denied by the
United States Supreme Court on October 7, 1991. See Glenn
v. Ohio 112 S.Ct. 110.
The petition in this case was filed on October 10, 1991.
The Court promptly granted the petitioner’s motion to stay
the execution of the death sentence scheduled for October 21,
1991. On November 13, 1991 the Court ordered the
respondent to move or answer within sixty days. On January
13, 1992, the respondent moved to extend the time to
February 12, 1992 to show cause why the petition should not
be granted. Eventually the 81 page return of writ was filed
by the respondent on March 13, 1992. The petitioner was
granted leave on March 30, 1992 to extend the time for 90
days to file the traverse. The time for filing a traverse was
extended to July 20, 1992 and then again until July 24, 1992.
The 190 page traverse was filed on July 24, 1992. A
corrected copy of the traverse numbering 198 pages was
subsequently filed on August 31, 1992. On January 27, 1993
the Court entertained oral argument by counsel for the
parties.°
II]. OHJO’S DEATH PENALTY STATUTE
Ohio has been a capital punishment state for many years.
However, Ohio’s statute was determined to be
°A transcript of the oral argument is filed with the
Clerk. See Docket #67.
ee Se Sia) ee ee Ge
53
unconstitutional until Ohio provided for a_ bifurcated
proceeding in capital offense cases. The legislation
providing for the bifurcated proceedings applicable to this
case became effective on October 19, 1981.’ The penalties
for aggravated murder are set forth in O.R.C. §2929.02, et
seq. In this case, the indictment stated in its entirety as
follows:
The Jurors of the Grand Jury of the State of Ohio,
within and for the body of this County aforesaid, on their
oaths, in the name and by the authority of the State of Ohio,
do find and present that JOHN GLENN on the 22nd day of
October, 1981, at the County of Mahoning aforesaid,
FIRST COUNT: did purposely cause the death of another,
to-wit: Deputy Sheriff John Litch, Jr., while committing,
attempting to commit, fleeing immediately after committing
or attempting to commit the crime of Escape (O.R.C.
2921.34(A)) of Robert Glenn from lawful detention.
SPECIFICATION TO THE FIRST COUNT: The Grand
Jurors further find and specify that the victim of the
offense, Deputy Sheriff John Litch, Jr., was a peace
officer, as defined by Section 2935.01 of the Revised
Code, whom the offender had reasonable cause to know
or knew to be such, and either the victim, at the time of
the commission of the offense, was engaged in his
“After it became apparent that death sentences would be
struck down by the United States Supreme Court absent a
bifurcated proceeding dealing first with guilt and secondly with
punishment, the Ohio Legislature adopted a bifurcated proceeding.
However, the United States Supreme Court declared Ohio’s first
attempt unconstitutional in Lockett v. Ohio, 438 U.S. 586 (1978),
and discussed in more detail beginning at page 77 of this opinion.
54
duties, or it was the offender’s specific purpose to kill
a peace officer.
SECOND COUNT: did, knowing that Robert Glenn was
under detention, purposely break or attempt to break such
detention,
contrary to the form of the’ statute in such case made and
provided, and against.the-peace and dignity of the State of
Ohio.
The jury found the defendant guilty of an aggravating
circumstance. Pursuant to provisions of O.R.C.
§2923.03(c)(2), if a defendant is convicted of aggravated
murder and of one or more specifications of an aggravating
circumstance as listed O.R.C. §2929.04(A), then the possible
penalties are death, life imprisonment with parole eligibility
after serving 20 full years of imprisonment, or life
imprisonment with parole eligibility after serving 30 full
years of imprisonment.
Where there is a conviction of aggravated murder with
an aggravated circumstance as ir this case, the sentence or
mitigation hearing is then conducted pursuant to the
provisions of O.R.C. §2929.03(D)(1).
Where death may be imposed as a penalty the defendant
has several choices to make following the guilt phase of the
trial. First, at his sole option, he may request either or both
a pre-sentence investigation and a mental examination. If
such requests are made by the defendant, then the court is
required to have a pre-sentence investigation and a mental
examination conducted and the reports are to be provided to
members of the jury during the sentencing phase of the trial.
O.R.C. §2929.04(B) sets forth a list of possible mitigating
circumstances which the jury is to consider after there has
55
been a determination of an aggravating circumstance. The
potential mitigating factors follow:
(1)
(2)
(3)
(4)
(5)
(6)
(7)
Whether the victim of the offense induced or
facilitated it;
Whether it is unlikely that the offense would
have been committed, but for the fact that the
offender was under duress, coercion, or strong
provocation;
Whether, at the time of committing the offense,
the offender, because of a mental disease or
defect, lacked substantial capacity to appreciate
the criminality of his conduct or to conform his
conduct to the requirements of the law;
The youth of the offender;
The offender’s lack of a significant history of
prior criminal convictions and delinquency
adjudications;
If the offender was a participant in the offense
but not the principal offender, the degree of the
offender’s participation in the offense and the
degree of the offender’s participation in the acts
that led to the death of the victim;
Any other factors that are relevant to the issue of
whether the offender should be sentenced to
death.
Where the defendant establishes one or more of the
mitigating circumstances it then is incumbent upon the jury
pursuant to O.R.C. §2929.03(D)(2) and (3) to determine
56
whether the aggravating circumstances of which the
defendant was found guilty of committing outweigh the
mitigating factors. Where such a determination is made the
jury then is instructed to recommend to the court that the
sentence of death be imposed on the offender. Absent such
a finding, the jury shall recommend that the offender be
sentenced to either life imprisonment with parole eligibility
after 20 years or to life imprisonment with parole eligibility
after serving 30 years of imprisonment.
IV. SUMMARY OF THE GROUNDS FOR RELIEF.
The petitioner advances twenty seven grounds for relief
and appendix A lists the wording of the specific grounds.
Some of the grounds for relief attack the petitioner’s
conviction and others relate solely to the sentencing phase of
the case.
Asa threshold principle, the grounds for relief in federal
habeas corpus must relate to alleged violations of the
Constitution, laws or treaties of the United States. 42 U.S.
C. §2254(a). Thus, federal courts do not review state
convictions under the provisions of 42 U.S.C. §2254 for
alleged violations of state law.
Moreover, claims cognizable under 42 U.S.C. §2254 are
not routinely reviewed in federal habeas corpus unless the
claim was initially asserted in state court so as to give, in the
interests of state-federal comity, the state courts the
opportunity to review the alleged constitutional violation.
Initially, the Court will review the grounds where the
respondent argues that state procedural default on the part of
the petitioner negates his right to federal habeas corpus
review.
ver ee rr ee Ue
57
V. STATE PROCEDURAL DEFAULT.
The application of state procedural default barring
federal court review of alleged constitutional errors in a state
conviction has been a prolific source for appellate decisions.
Initially, Faye v. Noia, 372 U.S. 391 (1963) did not bar
review of the constitutional claim for state procedural default
unless the court found that there was a deliberate-bypass of
the constitutional claim first raised in federal habeas corpus.
The Faye v. Noia standard was at least partially rejected by
Wainwright v. Sykes, 433 U.S. 72 (1977) as the deliberate-
bypass rule was rejected in that case for the “cause” and
“prejudice” test. The burden was placed on the petitioner to
demonstrate cause for the failure to advance the constitutional
issue in state court. If the petitioner could demonstrate
“cause”, the next burden placed on the petitioner was to
demonstrate “prejudice”.
Any lingering doubt about the continuing viability of
Faye v. Noia was removed by Coleman v. Thompson, __
U.S. __, 111 S.Ct. 2546 (1991) which explicitly held that the
Wainwright v. Sykes test of cause and prejudice was the
standard, as Justice O’Connor writing for the 6-3 majority
declared:
We now make it explicit: In all cases in which a state
prisoner has defaulted his federal claims in state court
pursuant to an independent and adequate state procedural
rule, federal habeas review is barred unless the prisoner
can demonstrate cause for the default and actual
prejudice as a result of the alleged violation of federal
law, or demonstrate that failure to consider the claim
will result in a fundamental miscarriage of justice.
Id. at 2565.
58
Moreover, the cause and prejudice standard applies
equally to capital and non-capital cases. Smith v. Murray,
477 U.S. 527 (1986).
The Court will thus initially consider and determine the
“cause and prejudice” issue where raised by the respondent.
VI. RESOLUTION OF THE CAUSE AND
PREJUDICE ISSUES.
(1) Ground Three
The petitioner was indicted by the Mahoning County
grand jury for the killing of Deputy Litch in Youngstown,
the county seat. After the failure to seat a jury, the
petitioner’s motion for a change of venue was granted. The
trial was shifted to and completed in neighburing Portage
County.
The petitioner now raises for the first time in this action
the claim that the decision to transfer the case to Portage
County violated petiaoner’s right to due process because the
minority population of Portage County is, on a percentage
basis, lower than that of Mahoning County.
The petitioner argues that the challenge to the jury array
in Portage County was the equivalent to a challenge to the
venue. The Court disagrees. No cause has been
demonstrated for the failure to raise the issue of venue in
state court. Applying Wainwright, the third ground is
dismissed.
Looking beyond the procedural default, the Court finds
that this claim lacks merit. The fact that the trial was
transferred, following petitioner’s request for a change of
59
venue’, from a County where blacks made up 14.2% of the
population to a neighboring County where blacks comprised
less than 3% of the population did not per se violate
petitioner’s due pre~ess and Sixth Amendment rights.
In Taylor v. Louisiana, 419 U.S. 522 (1975), the Court
held that the selection of a petit jury from a representative
cross section of the community is an essentia! component of
the Sixth Amendment right to a jury ... .” Jd. at 528.
However, this is not to say that the defendant is entitled to
a jury of any particular composition, or one that reflects the
various distinctive groups in the community. Id. Still, the
State may not systematically exclude distinctive groups from
consideration for jury service. Batson v. Kentucky, 476 U.S.
79 (1985); and Taylor, supra.
It is true that the trial court transferred petitioner’s trial
to a county with a small black population, and that there
were no blacks in petitioner’s venire, and, as a result, no
blacks served on petitioner’s jury. However, petitioner has
presented no evidence to prove that, in acting upon
petitioner’s motion to change venue, the trial court
intentionally and systematically chose to deny petitioner his
right to trial by an impartial jury comprised of a fair cross
section of the community. The transfer of a case from a
county with a relatively large black population, to one with
a relatively small black population, without more is
insufficient to establish unconstitutional exclusion. Finding
non intentional or systematic exclusion of blacks from
®The trial judge granted petitioner’s request to transfer the
case after the court had devoted twenty three days to seating a
jury, but was unable to do so. The inability to seat a fair jury in
Youngstown was apparently the result of the publicity that
petitioner’s case had received in Mahoning County.
60
petitioner’s venire, petitioner's claim would fail on the
merits.
(2) Ground Seven
The petitioner argues that his death sentence must be
vacated because the pre-sentence report submitted to the jury
during the sentencing phase contained juvenile charges for
which he had not been convicted. However, the issue was
not raised on direct appeal. As this sentencing issue should
have been raised on direct appeal, Wainwright applies and
Ground seven is dismissed.
Had the claim been properly preserved, it still would
have failed on the merits. Petitioner argues that the inclusion
of the unadjudicated charges in the pre-sentence investigation
report (PSI) unjustly prejudiced him in two ways. First, the
unproven charges of assault, robbery, auto theft and gross
sexual imposition created a non-statutory aggravating
circumstance which could have weighed heavily against the
mitigating circumstances presented by the petitioner.
Second, inclusion of the unadjudicated charges “negated a
statutory mitigating factor on which [petitioner] relied,”
namely no significant prior criminal record. (Petitioner's
Traverse at 62).
Both the Ohio Supreme Court and the Ohio Court of
Appeals on the post-conviction remedy found that the trial
court erred in allowing the unproven charges to remain on
the PSI. This Court agrees that the trial court erred, and that
the potential for prejudice existed. See United States v.
Hasting, 461 U.S. 499 (1983).
This court agrees with the Ohio Supreme Court and the
Ohio Court of Appeals which concluded that the error was
harmless. Finding harmless error, the Court would have
61
denied the claim on the merits.
(3) Ground Eight
Petitioner claims that he was denied an impartial jury
because one of the jurors initially declared “that he would
automatically impose the death sentence”. This issue was
waived by the petitioner’s failure to raise it on direct appeal
and Ground eight is dismissed.
Looking beyond the procedural default, the Court finds
that this claim lacks merit. Petitioner argues that juror
Edwin Guenther should have been excused for cause because
of his strong views regarding the death penalty. Edwin
Guenther initially indicated that he would automatically
sentence the petitioner to death if he was found guilty:
Q. ..If you’re called upon as a juror could you
consider all the penalties or would your beliefs, if you have
any, cause you automatically to vote against the imposition
of the death penalty without regard to any evidence that
might be developed at the trial?
A. I would vote for it if he’s guilty.
Q. Now, that’s--are you saying if he’s guilty you
would automatically vote for the death penalty?
A. That’s right.
Q. Would yeu listen to the other evidence that might
be offered and maybe consider that and decide maybe the
death penalty shouldn’t be applied?
A. I--second preference?
ES eS ae Se
62
Q. I’m asking you can you listen to the evidence and
make a judgment, whatever it might be, it might be that you
would recommend that he go to jail or might recommend that
he be put to death. You’d have to maybe take a choice.
Could you do that?
A. I can.
Q. All right. That was the gist of the question.
Would you consider all penalties and make whatever
judgment under conscience would require you to make?
A. I would judge all penalties.
(Tr. 563-64). Further questioning by the defense counsel
demonstrated that Mr. Guenther did not understand the death
penalty procedure in Ohio. |
Q. ...Would you automatically vote for [the death
penalty]?
A. Well, if he’s proven guilty---
Q. Well, that’s what I’m trying to get to. The law
won’t permit you to do that, do you understand?
A. The law don’t?
Q. Well, that is what the judge was trying to get you
to say or trying to ask you whether or not you would
consider, assuming he’s guilty--
A. Right.
Q. --assuming you participated in that decision--
>
Prove--
--now you come to the second stage.
We have a state law, don’t we?
Yes, sir.
glee Eee cet
Well, we have to uphold our state law, don’t we?
Q. Yes, sir. Well, do you follow me to distinguish
on one hand between his being guilty as you say and the
need for you as a member of this jury to consider other
factors in whether or not you recommend or do not
recommend the death penalty?
A. Well, I would try to get other factors first.
Q. You wouldn’t automatically, as you say, because
he’s proven guilty then go the next step to vote for the death
penalty?
A. The last resource. That would be my last
resource.
[sic]
(Tr. 583-584).
In Witherspoon v. Illinois, 391 U.S. 510 (1968), the
Court held that prospective jurors in a capital case cannot be
discharged for cause merely because they express a
conscientious objection to capital punishment. In a footnote
in Witherspoon, the Court set out the standard for
determining whether a juror has been properly excused for
prejudicial bias toward the death penalty. Jurors may be
excluded for cause if they make it
64
unmistakably clear (1) that they would automatically
vote against the imposition of capital punishment without
regard to the evidence that might be developed at the
trial of the case before them, or (2) that their attitude
toward the death penalty would prevent them from
making an impartial decision as to the defendant’s guilt.
Witherspoon, supra at 522, n.21 (emphasis in original).
Subsequent courts have modified the Witherspoon
standard, making it increasingly difficult to challenge a juror
on his beliefs regarding the death penalty. In Wainwright v.
Witt, 469 U.S. 412 (1985), the Court held that the trial court
should inquire as to:
[w]hether the juror’s view would prevent or substantially
impair the performance of his duties as a juror in
accordance with his instructions and his oath.
Witt, supra at 421, quoting Adams v. Texas, 488 U.S. 38, 44
(1980). Later courts have held that the Adams standard is to
be applied to situations where a prospective juror’s beliefs
regarding the death penalty would prevent the juror from
considering sentences other than death. See Ross v.
Oklahoma, 487 U.S. 81 (1987).
Even under the more demanding standards employed by
the post-Witherspoon courts, it was not error for the trial
court to seat juror Edwin Guenther. While Mr. Guenther
initially indicated that he would “automatically” impose the
death penalty upon a conviction, he later stated that he would
consider all available sentences, including death and life
imprisonment, before he made his decision. It is true, as
petitioner notes, that it appears from the record that Mr.
Guenther was surprised to learn that a death sentence did not
automatically follow a finding of guilty. However, once
65
defense counsel explained the sentencing process in a capital
trial to Mr. Guenther, he represented to the court that he
would follow the law. It is evident from the record that Mr.
Guenther, while perhaps an advocate of the death penalty’,
Clearly indicated that he would consider all options before
imposing sentence.
Further, this Court must given deference to the trial
court’s finding that Mr. Guenther was fit to serve as an
unbiased juror, since it was the trial court who had the
Opportunity to view the demeanor and credibility of the
prospective juror. Wainwright v. Witt, supra at 428. Thus,
it was not error for the trial court to seat Mr. Guenther on
petitioner’s jury.
(4) Ground Nine
Petitioner claims that the sentence is invalid “because the
trial court refused to instruct the jurors that mercy was a
valid consideration”. The claim was not raised on direct
appeal, but was considered during the post-conviction
proceedings. The motion to dismiss for procedural default
is denied.
(5) Ground Ten
Petitioner claims that the penalty phase jury charge
“effectively made [the death] sentence mandatory.” This
*Guenther indicated that he favored the death penalty
because it was a burden on taxpayers to have to incarcerate felons,
and because if certain criminals are ever returned to society
following a long prison term they may commit future crimes of
violence. (Tr. at 581-582).
66
issue was not raised on direct appeal and then was abandoned
during the appellate phase of the post-conviction stage. No
cause having been demonstrated, Ground Ten is dismissed.
Looking to the merits of the claim, the Court finds that
the claim would not have survived review. Petitioner argues
that the trial court erred when it instructed the jury
“Irjleasonable deubt is present when after you have carefully
considered and compared all of the evidence, you cannot say
you are firmly convinced of the truth of the charge.
(emphasis in petitioner’s traverse). This, coupled with the
trial court’s instruction that they were to return a death
verdict if they found that the prosecution had met its burden,
created a mandatory presumption in favor of death since the
jury had already found that the petitioner was guilty of the
charge of aggravated murder.
It is axiomatic that a jury instruction may not serve as a
presumption in favor of the state with regards to guilt or
sentencing. Sandstrom v. Montana, 422 U.S. 510 (1979);
and Woodson y. North Carolina, 428 U.S. 280 (1976). In
passing on state jury instructions, federal habeas courts must
review the entire charge and determine “whether the ailing
instruction by itself so infected the entire trial that the
resulting conviction [or sentence] violates due process.”
Estelle v. McGuire, _ U.S. __, 112 S.Ct. 475, 482 (1991),
quoting, Cupp v. Naughten, 414 U.S. 141, 147 (1973).
The Court finds that the instruction in question, though
arguably could be interpreted a number of ways, did not taint
the entire charge so as to deprive petitioner of due process.
In his charge, the trial court carefully identified the statutory
aggravating and mitigating circurnstances, and explained the
weighing process that was to be performed. The trial court
specifically instructed the jury:
67
If all 12 members of the jury find, by proof
beyond a reasonable doubt, that the aggravating
circumstance which John Glenn was found guilty of
committing outweigh[s] the m’tigating factors then you
must return such finding to the Yourt. If you make such
a finding, you must recommend to the Court that the
sentence of death be imposed to the defendant, John
Glenn.
On the other hand, if after considering all of the
relevant evidence raised at trial, the testimony, other
evidence, the statement of John Glenn, and the argument
by counsel, you find the State of Ohio failed to prove
the aggravating circumstance which the defendant John
Glenn was guilty of committing, outweighs the
mitigating factors, then you will return your verdict
reflecting your decision and the death penalty cannot be
imposed.
(Tr. transcript at 3047).
From this instruction, the reasonable juror would have
understood that she was not to automatically recommend a
death sentence, but rather was to engage in a weighing
process consistent with O.R.C. §2929. Had _ petitioner
preserved this claim, it would have been denied.
(6) Ground Eleven
etitioner claims that constitutional violations resulted
when the trial court instructed the jurors on statutory
mitig»ing factors which petitioner did not raise during the
sentscing phase. No direct appeal was taken on this issue.
However, it was initially raised during post-conviction, but
abandoned on appeal to the Ohio Supreme Court. No cause
having been shown, Ground Eleven is dismissed.
ae ~ beume
68
A review of this claim on the merits would lead to the
conclusion that it does not entitle petitioner to relief. In
identifying the statutory mitigating circumstances, the trial
court merely alerted the jury to any possible mitigating
circumstances. However, if the identification of statutory
mitigating circumstances not presented by petitioner
prejudiced the petitioner by calling attention to any factors
for which he offered no evidence, the trial court cured this
when he charged the jury that:
It is only the quality of the aggravating
circumstances versus the quality of the mitigating factors
which is to be the basis of your decision. The quality or
importance of the mitigating factors and the aggravating
circumstances must also be considered.
(Tr. transcript at 3046).
By specifically instructing the jury that it is the quality
and not the quantity of mitigating circumstances that is to be
considered, the trial court removed all possible prejudice to
petitioner. As a result, had this claim been before this
Court, it would have been denied.
(7) Ground Twelve
Petitioner claims constitutional violations because of the
fact that the jury used a dictionary during the sentencing
phase of its deliberations. The issue was not raised on direct
appeal and then was abandoned during the appellate phase of
the post-conviction. No cause have been shown, Ground
Twelve is dismissed.
However, a review of this claim on the merits would
also have ended in dismissal. While the use of a dictionary
by the jury during its deliberations was misconduct, it was
=
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ei
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4
4
‘
69
not per se prejudicial misconduct as petitiors: contends.
United States v. Duncan, 598 F.2d 839 (4i® “ir. 1979),
citing, Rodriguez y Paz v. United States, 473 2d 662 (Sth
Cir. 1973) (per curiam). In addition to error, pe*.ioner must
demonstrate “some likelihood that the extrinse: materials
could have affectex the jury verdict in order to justify a new
trial.” United States v. Hill, 688 F.2d 18 (6th Cir. 1982).
Petitioner has provided no evidence which would suggest that
the jury’s verdict and sentence rest on definitions the jurors
gleaned from the dictionary. Having failed to make such a
showing, petitioner's twelfth ground would have been
dismissed.
(8) Ground Fourteen
Petitioner contends that the sentencing judge failed to
give weight and effect to mitigating evidence. The issue was
not raised on direct appeal, but was raised during the post-
conviction stage. Then the claim was abandoned on appeal.
Here the petitioner argues both cause and prejudice. The
Court denies the respondent’s motion to dismiss the claim
and will consider it on its merits.
(9) Ground Fifteen
Petitioner cor:ends that the failure of the trial court to
declare a inistrial when two deputies during cross
examination by petitioner’s [sic] indicated that the petitioner
had previously been incarcerated violated the Constitution.
The respondent concedes that the issue has been raised in
state court, but not as a federal constitutional violation. The
court denies the respondent’s motion to deny relief on the
basis of a federal claim not raised in state court and will
consider the issue on its merits.
(10) Ground Seventeen
i = Se
70
The petitioner advances the argument that Ohio’s
statutory definition of reasonable doubt dilutes the State’s
burden of proof.
Clearly, the issue was not previously raised in the state
proceedings and state procedural default applies. Ground
Seventeen is dismissed.
Had petitioner preserved this claim it would not have
survived review on the merits. As petitioner concedes, the
instruction on reasonable doubt is consistent with the Ohio
statute, See O.R.C. [sic]
§2901.05(D).'° The Sixth Circuit has specifically held this
Statute to be constitutional on two separate occasions.
Nabozny v. Marshall, 781 F.2d 83, 84 (6th Cir. 1986); and
Thomas v. Arn, 704 F.2d 865, 867-869 (6th Cir. 1983).
This Court agrees and holds that the trial court’s instruction
on reasonable doubt did not unconstitutionally shift the
The trial court instructed the jury that:
Reasonable doubt is present when after you have
carefully considered and compared all of the evidence you
cannot say you are firmly convinced of the truth of the
charge. Reasonable doubt is a doubt based on reason and
common sense. Reasonable doubt is not mere possible doubt
because everything relating to human affairs is open to some
possible or imaginary doubt. Proof beyond a reasonable
doubt is proof of such character that an ordinary person
would be willing to rely and act upon it in the most
important of their own affairs.
Tr. transcript at 2596-2597; 3044.
RPE PILE RELE NP NENI AM M Es AR
SORE De MPON a pr
71
prosecutor's burden of proof.'' As such, ground 17 would
have been dismissed on the merits.
(11) Ground Eighteen
The petitioner contends that the prosecuting attorney
diluted the concept of reasonable doubt by his argument
which made reference to the same kind of proof one would
require in buying a house. Again, as claimed by the
respondent, the Court finds a state procedural default as the
issue was not raised in the Ohio courts. Ground Eighteen is
dismissed.
Reaching beyond the procedural default to the merits of
the claim, it appears that it is merely an outgrowth of ground
17. Petitioner claims that the prosecutor’s example of
deciding whether to buy a home, in concert with the alleged
erroneous reasonable doubt charge issued by the trial court,
diluted the prosecutor’s burden of proof. Having found that
the charge, itself, was appropriate, the Court would also
have found that the comment by the prosecutor during
closing arguments was appropriate as it was merely an
example of an important decision in an individual juror’s life.
Petitioner’s eighteenth ground would also have been
"Petitioner argued that a better instruction would have
emphasized doubt causing a person to refrain from action rather
than a doubt which causes a person to act. United States vy. Noon,
913 F.2d 20 (Ist Cir. 1990); United States v. Colon, 835 F.2d
[sic] (2nd Cir. 1987); and United States v. Pinkney, 551 F.2d 1241
(D.C. Cir. 1976). A habeas court cannot reverse a conviction
because the best or most appropriate charge was not given to the
jury. Rather, the court must determine whether the charge was in
error and if so, whether the error “infected the entire trial.”
Estelle, supra (citation omitted).
|
72
dismissed on the merits.
(12) Ground Nineteen
The petitioner claims that the decision of the trial court
to permit the court reporter to re-read portions of the
testimony of a key state witness during the jury’s
deliberations on the guilt phase of the trial was a
constitutional violation. This claim was not raised in state
court and is dismissed for state procedural default.
Had petitioner preserved this claim, the Court would
have found error, but without the attending prejudice
necessary to reverse petitioner’s conviction. After they
began their deliberations, the jury requested that portions of
Otis Simmons, Jr.’s testimony be re-read, and the trial court
granted their request. Simmons testified at trial that he
informed the police on the day of the shooting that petitioner
had approached him to buy a car and a gun to assist him in
helping his step-brother escape from custody.
It was error for the trial court to re-read only a portion
of Simmons’ testimony. “The rereading of a witness’
testimony is disfavored when it duly emphasizes that
testimony.” United States v. Binder, 769 F.2d 595 (9th Cir.
1985). See also United States v. Nolan, 700 F.2d 479 (9th
Cir. 1983). In the present case, the court only re-read the
portion of the testimony which was especially harmful to
petitioner. The court did not have re-read the balance of the
testimony, including the cross-examination of Simmons
wherein defense counsel impeached Simmons by
demonstrating that the witness had a significant criminal
history and was testifying to avoid a weapons charge. In re-
reading only a portion of the testimony, the trial court placed
undo emphasis on the evidence.
BPR Gree tyne x ae Grey ER or yen ec epee Roweeenr a2
— Rage ee
73
Nevertheless, the Court finds that this error, considered
in isolation, was insufficient to demonstrate the prejudice
necessary to establish a constitutional violation. Had
petitioner preserved this claim it would have been dismissed.
(13) Ground Twenty
The petitioner claims that his appellate counsel on direct
appeal was ineffective. The respondent concedes that this
issue was raised in post-conviction, but argues that the
discrete failures which support the claim of the ineffective
assistance of appellate counsel are all subject to procedural
default or waiver and thus the underlying claim in Ground
Twenty should be dismissed. The Court disagrees and will
consider the merits of Ground Twenty.
(14) Ground Twenty Five
The petitioner argues that he was denied the effective
assistance of counsel during the guilt phase of the trial. the
respondent’s claim that this issue fails for state procedural
default is without merit. The claim will be considered on its
merits.
(15) Ground Twenty Six
The petitioner advances the claim that the aggravating
factor with respect to murder of a peace officer was
unconstitutionally vague. The petitioner claims that the issue
was not presented in state court as a constitutional issue and
thus state procedural default applies. It is a close question,
but the Court will consider the issue on its merits.
(16) Ground Twenty Seven
74
The petitioner challenges a number of prosecutorial
statements during the trial as rising to the level of a
constitutional violation. The challenge to prosecutorial
conduct in state court was limited to closing arguments. The
respondent’s claim of state procedural default is well taken
and Ground Twenty seven is dismissed.
Looking beyond the procedural default, the Court finds
that the petitioner’s claim lacks merit. While petitioner cites
a number of instances where the prosecutor allegedly
overstepped his authority in his closing arguments, none of
these incidents, separate or considered together, can be said
to have denied petitioner his constitutional rights.
In order to make out a claim for prosecutorial
misconduct a defendant must establish both the existence of
prosecutorial misconduct, and that the misconduct affected
the fairness of the trial. United States v. Aichele, 941 F.2d
761, 765 (9th Cir. 1991). “[T]o deny a fair trial,
prosecutorial misconduct must be so pronounced that it
permeates the entire atmosphere of the trial.” United States
v. Warner, 971 F.2d 1189, 1205 (6th Cir. 1992). See also
United States v. Young, 470 U.S. 1 (1984).
First, petitioner notes that the prosecutor told the jury
that they were the “third link” in law enforcement. Second,
petitioner argues that the prosecutor improperly gave his
personal opinion that petitioner’s criminal history was
significant. Third, the prosecutor “repeatedly
mischaracterized the evidence adduced at trial.” (Petitioner’s
traverse at 183).
The Court finds that each of the above-mentioned errors
was harmless in light of curative charges given by the court.
The trial court sustained defense counsel’s objection to the
prosecutor’s “third link” comment, as well as defense
75
counsel’s objection to the prosecutor’s attempt to inject his
personal opinion as to petitioner's criminal history. Further,
the trial court charged the jury that they were to disregard
any evidence or statement that was sustained. Finally, the
trial court instructed the jury that they were the sole judges
of the fact and that they need not rely on the recollection of
the court or the attorneys.
pare ae etna Ste arhns <a
meyer
Se ie ee ‘
f Petitioner also complains that the prosecutor improperly
f stated that he personally believed that petitioner was guilty,
B | made derogatory comments regarding petitioner’s exercise of
his statutory right to make an unsworn statement at the
sentencing hearing, argued against giving mercy, and
emphasized the impact of the victim’s death on the
community.
Pe
uation
RPE RE AT Rk
While it is improper for a prosecutor to comment on a
defendant’s decision not to take the stand in his own
defense’, the Ohio Supreme Court has held that this
prohibition does not extend to comments regarding a
§ defendant’s introduction of unsworn statements at sentencing.
Ohio v. Broom, 40 Ohio St.3d 277, 287 (1988). The Ohio
: Supreme Court held, and this Court agrees that merely
: pointing out that the statements are not under oath and were
. not subject to cross examination does not present the same
i opportunity for negative inferences that might occur if a
defendant fails to take the stand in his own defense at the
guilt phase of any criminal trial. Even if the prosecutor’s
comment were in error, the Court would find them harmless
in light of the substantial disparity between evidence of
aggravating and mitigating circumstances.
Bi a ee a
: It is also improper for a prosecutor to offer his own
"Griffin v. California, 380 U.S. 609 (1965).
ee
76
personal opinion as to the defendant’s guilt.’ Still, the
prosecutor’s comment 7:d not amount to prejudicial error.
The prosecutor stated that the jury had heard the same
evidence that he had heard, and that there was but one
conclusion that could be reached, that being that the
petitioner was guilty of aggravated murder. Prior to his
statement, he thoroughly reviewed the evidence. Thus, his
main point was that the evidence was sufficient to convict,
which is appropriate argument. While his comment
regarding his personal belief was inappropriate, it was
merely made in passing with the focus on the evidence, ana
it was not so egregious as to deprive the petitioner of a fair
trial in light of the overwhelming evidence regarding the
aggravating circumstance.
Finally, the Court finds that it was not error for the
prosecutor to emphasize the impact of the victim’s death on
the community. In Payne v. Tennessee, 111 S.Ct. 2957,
2609 (1991), the Court held that the sentencing jury has a
right to “victim impact” [sic]
evidence. '*
3United States v. Young, 470 U.S. 1 (1985).
The Payne decision overruled two prior decision of the
Court: South Carolina v. Gathers, 490 U.S. 805 (1989); and
Booth v. Maryland, 482 U.S. 496 (1987). Even if Payne does not
enjoy retroactive application, and that under Booth and Gathers
“victim impact” statements were inappropriate at the time of
petitioner’s trial, the Court would find that the error was harmless
in light of the evidence produced at the penalty phase of the trial.
SORRPEQUEARMETE MRE TH RC AT MEMS
77
In sum, the Court would find that the prosecutor did not
exceed his authority during closing arguments, and that if
those comments and remarks were inappropriate, and thus
made in error, they did not have such a substantial impact so
as to deny petitioner a fair trial.
!
CONCLUSION
For the reasons set forth, the Court dismisses Grounds
3, 7, 8, 10, 11, 12, 17, 18, 19, and 27 for procedural
default. However, as indicated, were these grounds to be
considered on their merits, the Court would find each
without merit.
The Court will consider hereafter Grounds 1-2-4-5-6-9-
13-14-15-16-20-21-22-23-24-25-26 on the merits.
Vil. THE COURT’S RULINGS ON THE PETITIONER’S
GROUNDS THAT RELATE TO THE GUILT PHASE OF
HIS TRIAL.
A. Ground Fifteen
The petitioner contends that the failure of the trial judge
to grant a mistrial because two deputy sheriffs, during
examination by the defense, offered testimony that indicated
that the petitioner had been incarcerated in the past, denied
the petitioner his right to a fair trial and violated the Due
Process Clause of the Fourteenth Amendment. Justice
Holmes of the Ohio Supreme Court addressed this issue on
the direct appeal and wrote:
Sheriff’s department employees Robert Knight
and Sgt. James S. Horvath each gave answers to defense
counsel’s cross examination questions which indicated
that appellant had been incarcerated at a prior time.
78
This, appellant asserts, was error of such magnitude as
to prejudice the proceedings and, further, was done
willfully so as to constitute misconduct by a witness for
the state pursuant to Crim. R. 33(A)(2).
While the witnesses’ responses were unfortunate,
there is nothing about the wording that would support
the view that they were given with sinister motive or
made so as to harm the appellant’s case. Robert Knight
was questioned about his duties as the custodian of
records of medical treatment given to prisoners. In one
of his responses he differentiated among those records,
stating: “That is on Robert Glenn. That is John
Glenn’s chart there.” This response seenis natural, even
if it did reveal that the witness had custody of, and
brought records which included, appellant.
In the questioning of Sgt. Horvath, it was
apparent that the question was carefully phrased so as to
exclude matters not “in reference to this case.”
However, the question as asked apparently emphasized
whether the officer had “seen or met or knew--come to
known [sic] the defendant, John Glenn ***.” The tria!
court stated, out of the jurors’ hearing, that he too
believed the question to be an inquiry whether the
witness had ever known appellant prior to the date of the
crime. Ultimately, the court found that “*** the
question was so ambiguous that it lends itself to an
answer.” Consequently, the answer, although harmful
to appellant, could quite innocently have been given,
with no misconduct whatsoever. As to the harmfulness
of the answer, the trial judge gave a clear and
unequivocal curative instruction that the jury was to
ignore the answer. It cannot, therefore, be said that
appellant was thereby prejudiced or prevented from
obtaining a fair trial. (Emphasis added).
79
State v. Glenn, 28 Ohio St.3d at 455.
The trial court gave a curative instruction. Upon
review, and assuming that the issue has been preserved as a
federal issue, the Court finds that the testimony, in light of
the curative instruction, did not deny the petitioner his right
to a fair trial and the fifteenth ground is denied.
B. Ground Sixteen
The petitioner argues that the “jury was not instructed to
find unanimously, or even by a substantial majority, every
element of the capital offense with which petitioner was
charged.” The petitioner concedes that this issue was not
raised in the state court but, in reliance on Coleman vy.
Thompson, supra, alleges that the failure should be excused
because a substantial miscarriage of justice will follow a
denial of habeas relief because of the erroneous instruction.
Prior to 1974, Ohio had, by way of statute, established
the crimes of first degree murder, second degree murder, and
manslaughter. In 1974, the crime of first degree murder was
replaced by the crime of aggravated muder as set forth in
O.R.C. §2903.01."
'°0.R.C. $2903.01 provides in pertinent part:
(A) No persor shall purposely, and with prior
calculation and design, cause the death of another.
(B) No person shall purposely cause the death of
another while committing or attempting to commit, or
while fleeing immediately after coming [sic] or attempting
to commit kidnapping, rape, aggravated arson or arson,
aggravated robbery or robbery, aggravated burglary or
burglary, or escape.
80
The issue of whether a conviction of aggravated murder
will be a capital case turns on whether the indictment
contains one or more allegations of an aggravating
circumstance as described by O.R.C. §2929.04(A).’° The
indictment charged the petitioner with the aggravating
circumstance described in O.%,.C. §2929.04(A)(6).
The O.R.C. §2929.04(A)(6) peace officer aggravating
circumstance is set forth in the indictment in the alternative.
The court’s charge to the jury'’ and the form of the jury’s
(C) Whoever violates this section is guilty of
aggravated murder, and shall be punished as provided in
section 2929.02 of the Revised Code....
'®6O_R.C. 2929.04 states in pertinent part as follows:
(A) Imposition of the death penalty for aggravated
murder is precluded, unless one or more of the following
is specified in the indictment or count in the indictment
pursuant to section 2941.14 of the Revised Code and
proved beyond a reasonable doubt:
(6) The victim of the offense was a peace officer,
as defined in section 2935.01 of the Revised Code, whom
the offender had reasonable cause to know or knew to be
such, and either the victim, at the time of the commission
of the offense, was engaged in his duties, or it was the
offender’s specific purpose to kill a peace officer.
"The State charges that the defendant, John Glenn,
committed the offense of aggravated murder of John Litch, Jr.,
and that the said John Litch, Jr., was a police officer as defined in
Section 2935.01 of the Ohio Revised Code, whom the defendant,
John Glenn, had reasonable cause to know that he was a peace
officer, and who at the time was engaged in his duties as a peace
officer, or it was the offender’s specific purpose to kill a peace
81
verdict on the issue of whether the prosecution had proved
the aggravating circumstance was also framed in the
alternative. '*
As a consequence, the petitioner contends that absent a
separate declaration by the jury, it is possible that only half
of the jurors found the first alternative to have been proved
and the remaining jurors could have found that only the
second alternative was proved with the result that the verdict
as it relates to the aggravating circumstance is lacking in a
unanimous jury verdict thereby offending the constitution.
The Court understands the petitioner, confronted with
the recent decision in Schad y. Arizona, _ U.S. _, 111
S.Ct. 2491 (1991), to be arguing that the two states of mind
involved in the alternatives dealing with peace officer killings
in O.R.C. 2929.04(A)(6) to be so different that the general
verdict returned by the jury violates due process.
officer.” Tr. p. 2607 (emphasis added).
‘The jury verdict form as to the alleged aggravating
circumstance read:
“We, the Jury, further find the defendant, John Glenn,”
then a blank, “--of the aggravating circumstance as set
forth in the specification, to wit: That the victim of the
offense, Deputy Sheriff John Litch, Jr., was a peace officer
as defined in Section 2935.01 of the Revised Code, whom
the offender had reasonable cause to know or knew to be
such, and either the victim at the time of the commission of
the offense was engaged ia his duties or it was the
offender’s specific purpose to kill a peace officer.”
Tr. at 2609 (emphasis added).
82
The petitioner has a threshold problem in advancing this
argument. The issue is raised for the first time in this case.
There is a conceded procedural default, but the petitioner
argues that federal habeas review is not foreclosed because
a failure to consider the claim first raised here will result in
a fundamental miscarriage of justice.
A review of the transcript indicates otherwise. The
victim was driving a marked sheriff's vehicle when rammed
by the petitioner. He was dressed in a uniform indicating
that he was a deputy sheriff. He approached the vehicle in
which the petitioner was seated and felled by a blast from a
sawed off shotgun. A review of the transcript reflects that
the defense advanced in this case was one of mistaken
identity. No issue was raised that neither of the alternatives
set forth in the peace officer aggravating circumstance
applied, other than to argue that Deputy Sheriff Litch was
not a peace officer because of his role as an auxiliary deputy.
No argument was advanced that the petitioner did not have
reasonable cause to know that Litch was a peace officer, nor
was there any argument advanced that the petitioner did not
have a specific purpose to kill Litch. The only discussion in
the final argument about the aggravating circumstance was
the prosecutor’s argument that the government had proved
both alternatives. ’’
Under these circumstances, the Court finds that there
will be no fundamental miscarriage of justice by failing at
this late date to consider whether there was a due process
violation in the trial court’s failure, despite the absence of an
objection by the petitioner, to place the issue of the
alternatives in O.R.C. 2929.04(A)(6) before the jury in
appropriate verdict forms.
'8SeeTrial Transcript at 2393-2395.
83
The sixteenth ground for relief is denied.
C. Ground Twenty Three
This ground for relief challenges the sufficiency of the
evidence to warrant the petitioner’s conviction of aggravated
murder. In acknowledgment of the teachings of Jackson v.
Virginia, 443 U.S. 307, 316-317 (1979) petitioner argues that
he is entitled to habeas corpus relief because “no rational
trier of fact could have found proof beyond a reasonable
doubt.”
It is well settled that a claim of insufficiency of evidence
is to be examined in the light most favorable to the
government. Jackson, 443 U.S. at 319.
Initially, the Court observes that 28 U.S.C. §2254(d)”
provides that a written opinion of a state court shall be
presumed to be correct. Consequently the Court turns to an
examination of the opinions of the two Ohio appellate courts
that considered and wrote on the subject of whether the
2098U.S.C. §2254(d) provides:
(d) In any proceeding instituted in a Federal court by an
application for a writ of habeas corpus of a person in
custody pursuant to the judgment of a State court, a
determination after a hearing on the merits of a factual
issue, made by a State court of competent jurisdiction in
a proceeding to which the applicant for the writ and the
State or an officer or agent thereof were parties, evidence
by a written finding, written opinion, or other reliable and
adequate written indicia, shall be presumed to be
correct...
84
defendant’s conviction was supported by sufficient evidence.
The Ohio Court of Appeals summarized the evidence in
its opinion as follows:
The ultimate description of the vehicle which
struck Deputy Litch’s patrol car, as transmitted by
police dispatchers, was consistent with the description
given by eye witnesses and matched that of the car
appellant was driving the day in question. Various
descriptions of the occupants of the car and their attire
also coincided with appellant and his half-brother,
Robert. Appellant spoke with two witnesses concerning
his plans to effectuate Robert’s escape. Otis Simmons,
one of these particular witnesses, testified that he
learned of the defendant’s plan to “escape his brother”
from the defendant before the killing when the defendant
attempted to buy a car and borrow a gun from Simmons
for this purpose. Alseen Lanier testified that at her
home during the night following the killing of Deputy
Litch, John Glenn admitted to her that he perpetrated the
shooting of Deputy Litch. Michael Pippin testified that
Glenn and his half-brother, Robert, left a shotgun at
Pippin’s house the same afternoon after the shooting.
Pippin also stated that Glenn left a car at the Pippin
residence. The car matched the description of the
vehicle Glenn had borrowed that morning and matched
the description of the car determined to have been
involved at the scene of the killing. A set of coveralls
similar to those worn by the Mahoning County jail
inmates was found in the car left by Glenn at the Pippin
residence. Deposits, which were consistent with gunshot
residue, were detected on appellant’s hands and clothing.
Various qualified detectives and criminologists
also testified at trial. These witnesses stated that
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particles consistent with a plaster cast were found in the
vehicle abandoned by Glenn on the floor of the front
seat passenger side. Blood samples from the victim’s
body were matched with the blood scrapings taken from
this case, and were found to be of the same blood
grouping type. The wadding removed from the deputy’s
body was consistent with that found in a Remington 12
gauge number five shot shell. The weapon found in the
Glenn car was a 12 gauge number five shot shell. The
weapon found in the Glenn car was a 12 gauge sawed-
off shotgun with one spent Remington number five shot
shell still in the chamber.
The Ohio Supreme Court also summarized the evidence
as follows:
In the present case, the difficulty of scientifically
ascertaining the exact murder weapon is pronounced since
shotgun pellets do not receive rifling marks as they travel
down the usually smooth bore of a shotgun barrel.
Consequently, circumstantial evidence must be relied upon if
a particular shotgun is to be identified as the murder weapon.
The same problem occurs when the license plates are
removed from an auto prior to its use in the commission of
a crime. Again, it is circumstantial proof that ordinarily
connects such vehicle to the crime.
The case sub judice is replete with evidence not only
indicating which particular shotgun was utilized, but also that
appellant fired the weapon while at the scene of this crime
and while utilizing the auto used in the crime. There was
testimony which placed a particular sawed-off shotgun in
appellant’s custody at the time of the killing. This same
weapon was scientifically determined to have been fired
recently. Furthermore, appellant left this weapon at the
home of Michael Pippin the evening of the date on which the
86
crime was committed. Expert analysis also concluded that
appellant had recently fired a gun. When discovered, the
shotgun contained a spent shell. The shotgun pellets taken
from the victim’s body were of the same size and weight as
those normally contained in the kind of shotgun shell fired
from such a shotgun.
The auto of which appellant had custody during the time
of the murder was found to have particles of blood and flesh
on the driver’s side door. Expert testimony established a
near match between those particles of blood taken from the
door and blood samples taken from the victim. The ultimate
description of the vehicle which struck Deputy Litch’s patrol
Car as transmitted by police dispatchers was consistent with
the description given by eyewitnesses, and matched that of
the car appellant was driving the day in question. Various
descriptions of the occupants of the car and their attire also
coincided with that of appellant and his half-brother, Robert.
Appellant spoke with two witnesses concerning his plans
to effectuate Robert’s escape. Otis Simmons, one of these
witnesses, testified that appellant told him of the plan to
“escape his brother.” This conversation occurred before the
killing, at which time the defendant attempted to buy a car
and borrow a gun from Simmons for this purpose. Alseen
Lanier testified that John Glenn admitted to her that he
perpetrated the shooting of Deputy Litch. Michael Pippin
testified that Glenn and Robert left a shotgun wrapped in a
towel at Pippin’s house the afternoon of the shooting. Pippin
also stated that Glenn left the car in question at the Pippin
residence.
The vehicle which Glenn had borrowed that morning
matched the description of the car observed to have been
involved at the scene of the killing. A pair of coveralls
similar to those worn by Mahoning County Jail inmates was
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87
found in the car left by Glenn at the Pippin residence.
Particles consistent with the plaster cast which had been on
Robert Glenn’s leg were found in the vehicle abandoned by
him on the floor of the front passenger’s seat.
In the face of the summaries of the two courts, the
petitioner argues that there is no single piece of evidence that
directly placed the murder weapon in his hands. In that
context, the petitioner contends that three other defendants
were charged “with this offense” but that the petitioner was
the only person indicted for capital murder. Petitioner
argues that the testimony of the two witnesses, Otis
Simmons” and Alseen Lanier,” who related incriminating
admissions of the petitioner, was suspect because of police
pressures that prompted the relating of the admissions.
”!Simmons testified that he was contacted by the defendant
on October 22, 1981 and that the defendant indicated that he
needed a car and a gun and that he intended to “escape” his
brother from jail. Simmons also indicated that on an earlier
occasion the defendant had mentioned to him that he possessed a
sawed off shotgun. (See Transcript pp. 1434-1464).
The testimony of Lanier is found at pp. 1732 through
1746 of the transcript. She testified that she was a friend of the
petitioner and that he came to her home on the evening of the day
of the fatal shooting, October 22, 1981. She testified that he
arrived at approximately 11:20 PM, went into the kitchen. Then,
as she related, he indicated that he wanted to leave town because
he was in trouble with the police because they thought he killed the
cop. Tr. p. 1735. She testified that she then asked him if it was
true as to whether he had done it and he said “yes,” and told her
to keep it a secret. Tr. 1736, 1737.
88
The Jackson standard of review does not permit the
Court to make its own subjective determination of guilt or
innocence. Equally important in the context of the Jackson
argument advanced by the petitioner, the Court has neither
the duty nor the right to weigh the credibility of the
witnesses Simmons and Lanier. Walker v. Engle, 703 F.2d
959, 969 (6th Cir. 1983). It was for the jury to determine
their credibility and their testimony, coupled with the other
testimony fairly summarized by the two Ohio appellate
courts, strongly supports the conviction of aggravated murder
and petitioner’s contention that no rational trier of fact could
have found proof beyond a reasonable doubt is patently
without merit.
The twenty-third ground for relief is denied.
D. Ground Twenty Four and Twenty Five
The primary thrust of these two grounds is that the
“scientific evidence” presented by the prosecution was
suspect and should have been challenged. Specifically, the
petitioner points to the testimony regarding the plaster cast
residue, the victim’s blood match, the lead on the petitioner's
jacket and the atomic absorption test. The petitioner
advances the argument that his trial counsel should have had
available to him appointed experts who could have counseled
defense counsel for the purpose of a competent cross
examination of the state’s experts or in alternative to testify
for the petitioner in a manner contrary to the opinions
expressed by the state’s witnesses.
The petitioner fails to advance any support for the
proposition that the “scientific evidence” was suspect or that
the cross-examination of the state’s experts was deficient.
Rather the petitioner advances what appears to this Court to
be a per se argument to the effect that where the state has
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available physical evidence that lends itself to expert opinion
that might be considered by the trier of fact to be
incriminating, it constitutes a constitutional violation for the
state to not sua sponte provide the indigent defendant access
to a “defense” expert for the purpose of either counseling
with the defense lawyer or alternatively to testify. No
authority is cited for that proposition nor does this Court find
any authority. Thus the twenty-fourth ground for relief is
denied.
Alternatively, the petitioner as a primary focus of the
argument that he was denied the effective assistance of
counsel at trial as set forth in Ground Twenty-five coniends
that his trial counsel should have sought the assistance of
appointed scientific experts in the areas that the state
produced expert testimony and that his failure to do so
constituted a denial of the effective assistance of counsel.
The ineffective assistance of counsel claim with respect to the
failure to seek experts to combat the “scientific evidence”
must be scrutinized against the Strickland v. Washington, 466
U.S. 668 (1984) two step analysis. If the Court were to
assume that the failure of the petitioner’s counsel to seek
expert testimony assistance resulted in a seriously deficient
performance, there is no evidence before the Court to justify
that the performance prejudiced the petitioner,”°
“By way of contrast, the lengthy hearing in the state post
conviction stage of these proceedings produced considerable
testimony on the subject of the petitioner’s mental condition and
the testimony that was available on that subject. But no challenge
was raised by scientific experts to challenge the state’s experts on
the issues relating to the plaster cast residue, the victim’s blood
match, the lead on the petitioner's jacket or the atomic absorption
test.
90
The Court has reviewed the other claims of the denial of
effective assistance of counsel during the guilt phase of the
trial and finds that none of the claims survive the Strickland
analysis and ground twenty-five is denied.
E. Ground Twenty Six
In his twenty-sixth (26) ground for relief, petitioner
claims that the aggravating factor upon which the jury
recommended the death penalty, the murder of a “peace
officer,” was unconstitutionally vague, as applied to him, and
deprived him of his rights under the Eighth and Fourteenth
Amendments. Petitioner’s twenty sixth claim lacks merit.
It is axiomatic that aggravating circumstances must be
sufficiently narrow to insure that the death penalty is not
applied in an arbitrary fashion, and that “valid penlogical
[sic] reason[s] underlie the selection ‘from among the many
criminal defendants [of] the few who are sentenced to
death.’” Beam v. Paskett, 966 F.2d 1563, 1570 (9th Cir.
1992), quoting Spaziano v. Florida, 468 U.S. 447, 460 n. 7
(1984). See also Maynard v. Cartwright, 486 U.S. 356, 362
(1987); Gregg v. Georgia, 428 U.S. 153, 189 (1975); and
Godfrey v. Georgia, 466 U.S. 420, 422 (1980).
Thus, to survive scrutiny under the Eighth Amendment,
an aggravating circumstance must provide a “person of
ordinary sensibility” with the guidance necessary to
determine which defendant should receive the death sentence
in light of the prohibition against cruel and unusual
punishment. It is under these restraints that the Court must
examine the statutory aggravating circumstance in question.
Section 2929.04(7), the aggravating circumstance found
by petitioner’s jury, states that a death sentence may be
imposed upon following a murder conviction if:
91
The victim of the offense was a peace officer, as defined
in section 2935.01 of the Revised Code, whom the
offender had reasonable cause to know or knew to be
such, and either the victim, at the time of the
commission of the offense, was engaged in his duties, or
it was the offender’s specific purpose to kill a peace
officer.
At the time of the murder, the term “peace officer” was
defined in the Revised Code * at O.R.C. §2935.01(B) as
follows:
a sheriff, deputy sheriff, marshal, deputy marshal,
member of the organized police department of a
municipal corporation in an adjoining state serving in
Ohio under a contract pursuant to section 737.04 of the
Revised Code, state university law enforcement officer
appointed under section 3345.04 of the Revised Code,
a police constable of any township, and, for the purpose
of arrests within those areas, and for the purposes of
Chapter 5503 of the revised Code, and the filing of and
service of process relating to those offenses witnessed or
investigated by them, includes the superintendent and
patrolmen of the state highway patrol.
Petitioner argues that the victim was a volunteer deputy
sheriff, and that since the definition of peace officer at
§2935.01(B) did not include a volunteer deputy sheriff at the
time of the murder, the aggravating circumstance was
“This section was amended twice after the date of the
incidence, the most recent amendment became eff stive as of
September 17, 1991.
92
unconstitutionally vague as applied to him.”” This argument
is without merit.
In reviewing a sentencer’s application of an aggravating
circumstance to a particular case, a federal court is to apply
the “rational factfinder” standard. Lewis v. Jeffers, 497 U.S.
764, 781 (1989). See Jackson v. Virginia, 433 U.S. 307
(1979). The reviewing court must consider whether any
rational factfinder could find the existence of an aggravating
circumstance beyond a reasonable doubt. Jeffers, supra at
781-783. “A state court’s finding of an aggravating
circumstance in a particular case...is arbitrary and capricious
if and only if no reasonable sentencer could have so
concluded.” Jeffers at 783.
Applying the rational factfinder standard to the facts in
this case, the Court holds that a rational factfinder could
have found that respondent knew that the victim was a peace
officer, and that the victim was, at the time of the killing,
engaged in his duties as a peace officer. Officer Litch was
driving a clearly marked sheriff’s cruiser, and was wearing
a traditional police uniform at the time of the killing. The
fact that the victim was a volunteer, is not a fact that a
rational factfinder would find materially relevant to reaching
a conclusion as to whether the statute should apply to
petitioner.
While §2935.01(B) does not specifically state that a
>>Petitioner does not challenge the facial validity of the
aggravating circumstance. Prior courts have upheld the
constitutionality of aggravating circumstances materially similar to
the one in question in the present case. See Godfrey v. Georgia,
446 U.S. at 423 (n.2) (1980).
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volunteer deputy sheriff is considered a peace officer under
the Ohio Revised Code, it does not rule out that
interpretation. The statute specifically states that “‘a peace
officer’ includes a sheriff, deputy sheriff...”. The very
structure of the statute, and especially the use of the word
“includes” demonstrates that the list is not exhaustive, and
supports a finding that a volunteer deputy sheriff qualifies as
a peace officer.
Further, a rational factfinder could conclude that such an
interpretation would be consistent with the apparent purpose
of §2929.04(7), namely to protect those performing vital
police functions. Section 2929.04(7) makes no mention of
the status of the peace officer or his salary, but emphasizes
the importance of whether he was engaged in his duties as an
officer at the time of the killing. Most citizens recognize
that police officers, volunteer or paid, often face dangerous,
and sometimes life threatening, situations. A rational juror
might well have deterinined that the relevant inquiry was not
whether the victim was being paid for his services, but
whether the officer was in a dangerous situation for which
the statute was adopted; as such a statutory provision might
serve to deter others from endangering the lives of officers
in their investigation of criminal activity. Finding that a
rational sentencer could have found evidence supporting the
aggravating circumstance of killing a peace officer, the Court
holds that the aggravating circumstance was not
unconstitutionally vague as applied to petitioner. Petitioner’s
twenty sixth (26) ground for relief is denied.
Vill. THE COURT'S RULING ON THE
PETITIONER’S GROUNDS THAT RELATE TO THE
SENTENCING PHASE OF HIS TRIAL.
94
A. Ground One
In petitioner’s first assignment of error, he alleges that
he was denied the effective assistance of counsel for the
sentencing phase of plaintiff’s capital trial.
In this case, the petitioner’s attack on his counsel is
anchored in a claim, advanced during the evidentiary hearing
conducted in response to the petitioner’s state action for post
conviction relief, that his trial counsel failed to conduct an
adequate investigation prior to the sentencing hearing in
preparation for establishing the mitigating factor set forth in
O.R.C. 2929.04(B)(3) which provides:
(3) Whether, at the time of committing the
offense the offender, because of a mental disease or
defect, lacked substantial capacity to appreciate the
criminality of his conduct or to conform his conduct to
the requirements of the law.
The petitioner claims that a more thorough pretrial
factual investigation by his trial counsel, concentrated on
interviews of his brothers and sisters, would have revealed
that he had lived under very difficult home conditions, that
he probably suffered a prenatal injury, and those facts,
coupled with his history of banging his head and bed wetting,
would have aided in the development of medical testimony at
the sentence hearing so as to demonstrate that the petitioner
suffered from global brain injury. Petitioner claims that such
a factual presentation, coupled with the type of medical
testimony presented during the post conviction evidentiary
hearing, would have led the jury to the finding of an O.R.C.
§2929.04(B)(3) mitigation factor that would have outweighed
the aggravating circumstance and thus resulted in a life
sentence.
95
' Federal habeas review of capital sentences often focus on
the ineffective assistance of counsel claim as it pertains to the
sentencing phase of the case.** The judicial analysis is
guided by Strickland v. Washington, 466 U.S. 668 (1984).
In that habeas capital case, the court set forth the following
principles for evaluating a claim of ineffective assistance of
counsel:
l. A capital sentencing proceeding like the one
involved in this case, however, is sufficiently
like a trial in its adversarial format and in the
existence of standards for decision, ... that
counsel’s role in the proceeding is comparable to
counsel’s role at trial--to ensure that the
adversarial testing process works to produce a
just result under the standards governing
decision.
Id. at 686, 87 (citations omitted).
o A convicted defendant’s claim that counsel’s
assistance was so defective as to require reversal
of a conviction or death sentence has two
components. First, the defendant must show that
counsel’s performance was deficient. ... Second,
the defendant must show that the deficient
performance prejudiced the defense. This
requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial,
a trial whose result is reliable. Unless a
defendant makes both showings, it cannot be said
26See,e.g., Burger v. Kemp, 483 U.S. 776 (1987); Blanco
v. Singletary, 943 F.2d 1477 (11th Cir. 1991) and Kenley vy.
Armontrout, 937 F.2d 1298 (8th Cir. 1991).
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that the conviction or death sentence resulted
from a breakdown in the adversary process that
rencers the result unreliable.
Id. at 687.
a The proper measure of attorney performance
remains simply reasonableness under prevailing
professional norms.
Id. at 688.
4. Judicial scrutiny of counsel’s performance must
be highly deferential....A fair assessment of
attorney performance requires that every effort
be made to eliminate the distorting effects of
hindsight, to reconstruct the circumstances of
counsel’s challenged conduct, and to evaluate the
conduct from counsel’s perspective at the time....
[A] court must indulge a strong presumption that
counsel’s conduct falls within the wide range of
reasonable professional assistance; that is, the
defendant must overcome the presumption that,
under the circumstances, the challenged action
“might be considered sound trial strategy.”
Id. at 689 (citation omitted).
5. [S]trategic choices made after thorough \
investigation of law and facts relevant to
plausible options are virtually unchallengeable; ’
and strategic choices made after less than
complete investigation are reasonable precisely to
the extent that reasonable professional judgments
support the limitations on investigation. In other
words, counsel has a duty to make reasonable
Id. at 690,
6.
Id. at 691.
Id. at 694.
8.
Id. at 695.
97
investigations or to make a reasonable decision
that makes particular investigations unnecessary.
91.
An error by counsel, even if professionally
unreasonable, does not warrant setting aside the
judgment of a criminal proceeding if the error
had no effect on the judgment.
The defendant must -show that there is a
reasonable probability that, but for counsel’s
unprofessional errors, the result of the
proceeding would have been different. A
reasonable probability is a probability sufficient
to undermine confidence in the outcome.
When a defendant challenges a death sentence
such as the one at issue in this case, the question
is whether there is a reasonable probability that,
absent the errors, the sentencer--including an
appellate court, to the extent it independently
reweighs the evidence--would have concluded
that the balance of aggravating and mitigating
circumstances did not warrant death.
....A] court hearing an ineffectiveness claim
must consider the totality of the evidence before
the judge or jury.
98
9. Although we have discussed the performance
component of an ineffectiveness claim prior to
the prejudice component, there is no reason for
a court deciding an ineffective assistance claim to
approach the inquiry in the same order or even
to address both components of the inquiry if the
defendant makes an insufficient showing on one.
In particular, a court need not determine whether
counsel’s performance was deficient before
examining the prejudice suffered by the defendant
as a result of the alleged deficiencies. The
object of an ineffectiveness claim is not to grade
counsel’s performance. If it is easier to dispose
of an ineffectiveness claim on the ground of lack
of sufficient prejudice, which we expect will
often be so, that course should be followed.
Courts should strive to ensure that ineffectiveness
claims not become so burdensome to defense
counsel that the entire criminal justice system
suffers as a result.
Id. at 697.
10. Since fundamental fairness is the central concern
of the writ of habeas corpus, see id., at 126, no
special standards ought to apply to
ineffectiveness claims made in habeas
proceedings.
Id. at 697, 98.
11. [I]n a federal habeas challenge to a state criminal
judgment, a state court conclusion that counsel
rendered effective assistance is not a finding of
fact binding on the federal court to the extent
stated by 28 U.S.C. §2254(d).
«it BOO SB ah 8
99
Id. at 698 (emphasis added).
12, [BJoth the performance and prejudice
components of the ineffectiveness inquiry are
mixed questions of law and fact.
Id. at 698.
The ninth principle of a Strickland review suggests that
if it is deemed appropriate to dispose of an ineffectiveness
claim on the issue of prejudice, the court should do so. The
court will follow that admonition.’
*/The issue of whether the performance of petitioner’s
counsel passes muster is difficult in this case. On the one hand
petitioner’s counsel had the early report of Dr. Nalluri that the
petitioner was competent to stand trial and did not suffer from
schizophrenia, organic mental disorder or affect disorder which
would support an insanity defense. On the other hand the report
alerted petitioner’s counsel to the fact that the petitioner had a
history of hyperactivity, possessed borderline intellectual
functioning, was beaten with boards by family members and had
wet the bed until he was eleven years old. Notwithstanding the
possibility of developing testimony that would arguably support an
O.R.C. 2929.04(B)(3) mitigating factor, petitioner’s counsel did
not conduct interviews, seek out records or apparently do anything
else in preparation for a possible sentencing hearing until after the
petitioner’s guilt phase of the trial was complete. After the guilt
phase, counsel for the petitioner requested that both a presentence
investigation and a mental examination be completed pursuant to
the provisions of O.R.C. §2923.03(D)(1). This statutory provision
mandates that copies of such reports be furnished to the jury. Two
doctors, Drs. Siddall and Ramani, were appointed by the court to
conduct a mental examination and their reports were furnished to
the jury. At the sentencing hearing, petitioner’s counsel called
four witnesses. Two testified about earlier contacts with the
petitioner when he was younger. One witness unsuccessfully
100
In addressing the prejudice issue, Strickland teaches that
the court must consider the totality of the evidence before the
jury. This the court has done and concludes that if the
testimony as presented by the petitioner during the post
conviction evidentiary hearing * had been presented to the
attempted to offer his opinions about the wisdom of Capital
punishment and the fourth witness opined that the petitioner did
not have a significant criminal records [sic] in the context of the
mitigation factor set forth in §2929.04(B)(5). In addition to the
four witnesses, petitioner’s counsel attempted to offer a videotape
Showing the area where the defendant lived and the interviews of
both the defendant’s mother and a former employer. The
prosecution objected to the introduction of the videotape because
of its assertion that it was denied the Opportunity to cross examine
the defendant’s mother and former employer if the videotape was
displayed to the jury. The trial court sustained the prosecution’s
motion, so the jury did not view the videotape. The defendant
offered an unsworn statement to the jury as he was permitted to do
under the provisions of §2923.03(D)(1). The defendant denied any
responsibility for Litch’s killing. In the sentencing argument to the
jury, petitioner’s counsel stressed the petitioner’s youth, his alleged
lack of a significant history of prior criminal convictions and
delinquency adjudication and engaged in a condemnation of death
sentences.
*°Atthe post-conviction hearing, present counsel offered
the deposition testimony of two psychologists and live testimony
of yet another psychologist who each attested to petitioner’s severe
mental disabilities. Dr. James Tanley, a clinical psychologist and
neuropsychologist testified that he performed numerous tests on the
petitioner including the Bender Gestalt Test, which measures gross
visual motor skills. He testified that petitioner exhibited only
borderline intelligence and that he suffered from organic brain
damage.
Dr. Tanley hypothesized that petitioner’s
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