Appendix — Mitchell, Warden v. Davis
Supreme Court brief2004
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No.
In The Supreme Court Of The United States
BETTY MITCHELL, Warden,
Petitioner,
Vv.
WILEY DAVIS, JR.,
Respondent.
ON PETITION FOR WRIT OF CERTIORARI TO
THE UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
APPENDIX
JIM PETRO
Attorney General of Ohio
DOUGLAS R. COLE*
State Solicitor
*Counsel of Record
CHRISTOPHER D. STOCK
Deputy Solicitor
30 East Broad Street, 17th FI.
Columbus, Ohio 43215
614-466-8980
614-466-5087 Fax
Counsel for Petitioner
enh CMM IE MIN ra
TABLE OF CONTENTS
Appendix A: Opinion of the United States Court of
Appeals for the Sixth Circuit, 318 F.3d 682 (6th Cir.
MID; CODES ©, TINS siscsessisnsisrsniteseniinvinionsinesvisasiiins
Appendix B: Sixth Circuit’s Decision Denying
Warden’s Petition for Rehearing..........ccccccsesceseseseesees
Appendix C: Opinion of the United States District
Court for the_Northern District of Ohio, 100
F. Supp.2d 607 (N.D. Ohio 2000), denying Davis’s
petition for a writ of habeas COrpuUS .........cccecsesceseseseeeees
Appendix D: Ohio Supreme Court’s Published
Decision on Direct Appeal, 76 Ohio St.3d 107 (1996)
Appendix E: Partial Transcript of Trial Proceedings,
Pages 1881-1889 and 1890-1895, Cuyahoga County
Court of Common Pleas, Case No. CR-275] : Sa
Appendix F: Henderson v. Collins, Order, United
Page
ae 33a
ossee LUTO
States District Court for the Southern District of Ohio,
Case No. C-1-94-106 (July 10, 2003) o.ecececccccccscsee.
Appendix G: Taylor v. Mitchell, unreported Opinion
and Order, United States District Court for the
Northern District Of Ohio, Case No. 1:01CV601
FE FT emitbcnnaibertsatto et a
3a
APPENDIX A
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 00-4193
WILEY DAVIS, JR.,
Petitioner-Appellant,
V.
BETTY MITCHELL, Warden,
Respondent-Appellee.
Appeal from the United States District Court for the Northern
District of Ohio at Akron. No. 99-01649. James Gwin,
District Judge.
Argued: October 31, 2002
Decided and Filed: February 4, 2003
Before: MERRITT, BOGGS, and MOORE, Circuit Judges.
MERRITT, J., delivered the opinion of the court, in which
MOORE, J., joined. BOGGS, J., delivered a separate
dissenting opinion.
COUNSEL
ARGUED: Laurence E. Komp, Baldwin, Missouri, for
Appellant. Charles L. Wille, ATTORNEY GENERAL’S
OFFICE OF OHIO, CAPITAL CRIMES SECTION,
Columbus, Ohio, for Appellee. ON BRIEF: Laurence E.
Komp, Baldwin, Missouri, John Patrick Parker, Cleveland,
Ohio, for Appellant. Charles L. Wille, ATTORNEY
GENERAL’S OFFICE OF OHIO, CAPITAL CRIMES
SECTION, Columbus, Ohio, for Appellee.
4a
OPINION BY: MERRITT
OPINION
MERRITT, Circuit Judge. Immediately following the
trial court's instruction regarding mitigating circumstances,
the trial judge in this death penalty case from Ohio gave the
jury a unanimity instruction, stating, “Now, as you know,
since this is a criminal case, the law requires that in order for
you to reach a decision all 12 of you must be in agreement.”
nl In addition to this express unanimity instruction in close
proximity to the instruction on mitigating circumstances, the
trial judge gave the jury a _ so-called ‘“acquittal-first”
instruction stating that it must first analyze whether the
elements allowing the death penalty were present, and only if
| they were not present, should the jury move on to consider
i life imprisonment:
Now, the procedure which you must follow in arriving at
your verdict in the sentencing phase of the trial is set forth in
Revised Code Section 2929.03 of the Revised Code of the
State of Ohio.
... If all twelve members of the jury find by proof
beyond a_ reasonable doubt that the aggravating
circumstances which Wiley Davis, Jr. was found guilty of
committing outweigh the mitigating factors, if any, then you
must return such finding to the Court.
I instruct you as a matter of law that if you make such
finding then you have no choice and must recommend to the
Court that the sentence of death be imposed upon the
i defendant, Wiley Davis, Jr.
CE a
Sa
On the other hand, if after considering all of the relevant
evidence raised at trial, the testimony, other evidence, the
unsworn statement of Wiley Davis, Jr. and the arguments of
counsel, you find that the State of Ohio failed to prove
beyond a_ reasonable doubt that the aggravating
circumstances which the defendant, Wiley Davis, Jr., was
found guilty of committing, outweigh the mitigating factors,
then you will return your verdict reflecting your decision;
that is, you must find that the State has failed to prove
beyond a_ reasonable doubt that the aggravating
circumstances which the defendant was found guilty of
committing outweigh the mitigating factors.
In this event you will then proceed to determine which of
the two possible life imprisonment sentences to recommend
to the Court.
nl Just before this unanimity instruction, the judge
told the jury about the verdict forms which the jury
would have before it. On each form the jury was told
that there would be 12 “bars” for each of the 12 jurors
to sign to carry out the unanimity requirement.
Immediately before the unanimity instruction quoted
above, the trial judge gave the jury the following
instruction with regard to the verdict form on a finding
that the mitigating factors outweighed the aggravating
factors, as follows:
We, the jury in this case, being duly impaneled and
sworm, do find that the Aggravating Circumstances
which the defendant, Wiley Davis, Jr., was found
guilty of committing are not sufficient to outweigh the
Mitigating Factors present in this case beyond a
reasonable doubt,” and “We, the jury, recommend that
the defendant, Wiley Davis, Jr., be sentenced to life
imprisonment with parole eligibility after serving—and
then down here there is an asterisk that says, ‘Insert in
6a
ink either (20) or (30) full years of imprisonment,”
and, again, 12 signature bars.’” (J.A. at 242-44.)
The habeas petitioner argues that these two
interconnected instructions—the unanimity instruction and
the acquittal-first instruction—constitute constic ional error
under the Eighth Amendment because there was a reasonable
likelihood that jurors would understand the instruction to
mean that juror unanimity was required to mitigate the
punishment from death to life. In upholding the death penalty
in this case on direct appeal, the Ohio Supreme Court
observed that these instructions “lacked clarity,” suggesting
that they could be misconstrued. In fact, there is a reasonable
likelihood that the jury believed that it could not render a
verdict in favor of life imprisonment rather than death unless
the jury was unanimous with respect to its reasoning on the
presence of mitigating factors and unless the jury was
unanimous in rejecting the death penalty. Instructions that
leave a jury with the impression that juror unanimity was
required to mitigate the punishment from death to life
imprisonment clearly violate the Eighth Amendment, and
therefore the writ of habeas corpus must issue setting aside
the death sentence.
Facts and Procedural History
On June 1, 1992, the Cuyahoga County Court of
Common Pleas adopted the jury’s recommendation and
sentenced Wiley Davis to death for the brutal kidnaping and
murder of Amy Perkins. Davis appealed his conviction to the
Cuyahoga County Court of Appeals, which affirmed Davis’s
conviction but set aside that portion of his sentence that
called for his placement in solitary confinement each year on
the anniversary of Amy Perkins’s death. In 1996, the Ohio
Supreme Court affirmed both the murder conviction and
sentence of death. The state court denied Davis’s petition for
post-conviction relief, and in 1998, the Cuyahoga County
Ta
Court of Appeals affirmed the trial court’s decision denying
post-conviction relief. In 1999, the Ohio Supreme Court
declined to exercise jurisdiction over Davis’s appeal of that
decision as one not involving any significant constitutional
claim.
On August 23, 2000, the District Court for the Northern
District of Ohio denied Davis’s petition for a writ of habeas
corpus. With respect to Davis’s contention that the trial
court's instruction failed to notify each juror of his or her
right to unilaterally prevent a death penalty recommendation,
the district court held that it was reasonable for the Ohio
Supreme Court to conclude that the trial court’s instructions
“when read as a whole, adequately informed the jury of the
proper manner to deliberate and choose a death penalty
recommendation.” See Davis v. Mitchell, 110 F. Supp. 2d
607, 624 (N.D. Ohio 2000). This Court has granted a
certificate of appealability on four of Davis’s claims, one of
which is his claim that the trial court’s instruction prevented
jurors from giving effect to mitigation.
Analysis
The developing law regarding the balancing of mitigating
factors against aggravating factors in death penalty cases is
of relatively recent vintage and many questions about its
application remain unanswered. Thirteen years before the
Supreme Court decided Furman v. Georgia, 408 U.S. 238, 33
L. Ed. 2d 346, 92 S. Ct. 2726 (1972) (holding death sentences
imposed under statutes that left juries with untrammeled
discretion to impose or withhold the death penalty violative
of the Eighth and Fourteenth Amendments), the drafters of
the American Law Institute’s 1962 Model Penal Code
proposed the balancing of statutorily specified aggravating
and mitigating circumstances as a method to restrain
unguided discretion in the capital sentencing process. See
American Law: Institute, Model Penal Code § 201.6 ( Tent.
8a
Draft No. 9, 1959) (eventually adopted as § 210.6 of the 1962
Model Penal Code). Although the drafters did not elaborate
on any particular method for weighing the two sets of
circumstances, they sought to guide the discretion of jurors
by requiring them to find that, in light of the statutorily
defined mitigating circumstances and any other facts deemed
relevant, “there are no mitigating circumstances sufficiently
substantial to call for leniency.” Model Penal Code
§ 210.6(2) (1962). Nor was it clear in these proposals when
unanimity among jurors should be required at any given
stage of the proceedings, except that unanimity would be
required for the imposition of the death sentence. See Model
Penal Code § 201.6(2) (alternative formulation), at 60 &
commentary at 78-79 (Tent. Draft No. 9 1959); Model Penal
Code § 210.6(2) (1962). After Furman was decided in 1972,
many states incorporated aspects of the Model Penal Code in
their statutes reinstating the death penalty. These states
adopted, with varying degrees of modification, the Code’s
agegravator-mitigator dual standard. In Gregg, the Supreme
Court approved the Code’s balancing standard as a general
solution to the Eighth Amendment problem of uncertain,
standardless state laws found invalid in Furman. See Gregg
v. Georgia, 428 U.S. 153, 193-195, 49 L. Ed. 2d 859, 96 S.
Cr. 2909 & nn.44-45 (1976).
In 1994, Congress enacted the Federal Death Penalty Act
using this dual standard. That Act states that “the finder of
fact shall consider any mitigating factor” raised by the
defendant in deciding whether to impose the death penalty
and that such
[a] finding with respect to a mitigating factor may be made
by | or more members of the jury, and any member of the
jury who finds the existence of a mitigating factor may
consider such factor established for purposes of this section
regardless of the number of jurors who concur that the factor
has been established.
9a
18 U.S.C. § 3593(d). Thus under the Federal Death Penalty
Act, not only is the burden of persuasion different for
aggravating and mitigating factors, the unanimity
requirement that exists for aggravating factors does not exist
with respect to mitigating factors. Any one or more jurors
may find the existence of a mitigating factor and may then
consider that factor in weighing the aggravating and
mitigating factors even though other jurors may not agree
that the particular mitigating factor has been established. This
weighing decision must be made by each juror giving
individual consideration to the aggravating factors
unanimously found by all of the jurors and such mitigating
factors as may be found by each juror. n2
n2 United States v. McVeigh, 96- CR-68, 1997 WL
312609, at *42 (D. Colo. June 12, 1997) (official
transcript of trial court’s instructions to the jury in
federal death penalty case); see also United Staies v.
Jones, 527 U.S. 373, 392 n.10, 144 L. Ed. 2d 370, 119
S. Ct. 2090 (1999) (“A finding with respect to a
mitigating factor may be made by any one or more of
the members of the jury, and any member who finds by
a preponderance of the evidence the existence of a
mitigating factor may consider such factor established
for his or her weighing of aggravating and mitigating
factors regardless of the number of other jurors who
agree that such mitigating factor has _ been
established.””’) (quoting the trial court’s instructions).
This provision of the Act was first adopted on the Senate
floor by an amendment offered by Senator D’Amato to an
earlier version of the federal death penalty bill and then later
adopted in a reconciliation bill after different versions of the
bill were sent to a conference committee. The reason given
for adopting this language in the Federal Death Penalty Act
ON Lee bale
10a
of 1994 was explained by Senator D’Amato on the Senate
floor when he originally offered the amendment in 1988:
Mr. President, this amendment brings us into conformity
with the Tuesday Supreme Court decision in Maryland
versus Mills. Basically, it says that you must have a
unanimous decision by a jury as it relates to the imposition of
the death penalty. Even if one juror says there was mitigating
circumstances of any sort, the death penalty cannot be
imposed. It makes this very clear. That is what this language
does. It brings us in conformance with that decision. I hope
we can accept it without the necessity of going through a
debate and rollcall vote.
134 Cong. Rec. 14,103-04 (1988) (statement of Sen.
D’ Amato regarding Amendment 2343 to S. 2455).
We agree that this treatment of mitigating factors set out
by Congress in § 3593 of the Federal Death Penalty Act is
required by the Eighth Amendment. In Mills v. Maryland,
486 U.S. 367. 100 L. Ed. 2d 384, 108 S. Ct. 1860 (1988), and
McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed. 2d 369,
110 §. Ct. 1227 (1990), the Supreme Court held
unconstitutional any requirement that “prevents the jury from
considering, in deciding whether to impose the death penalty,
any mitigating factor that the jury does not unanimously
find.” McKoy, 494 U.S. at 435.
Rather, Mills requires that each juror be permitted to consider
and give effect to mitigating evidence when deciding the
ultimate question whether to vote for a sentence of death.
This requirement means that, in North Carolina’s system,
each juror must be allowed to consider all mitigating
evidence... whether aggravating circumstances outweigh
mitigating circumstances, and whether the aggravating
circumstances, when considered with any mitigating
circumstance, are sufficiently substantial to justify a sentence
lla
of death. Under Mills, such consideration of mitigating
evidence may not be foreclosed by one or more jurors’
failure to find a mitigating circumstance ....
Id. at 443.
The reason that aggravating factors must be found
unanimously is that they are the elements of the murder
offense that make the defendant death eligible. See Ring v.
Arizona, 536 U.S. 584, 122 S. Ct. 2428, 2443, 153 L. Ed. 2d
556 (2002) (holding that because Arizona’s enumerated
aggravating factors operate as the functional equivalent of
elements of the offense, the Sixth Amendment requires that
they be found by a jury). All of the elements of a criminal
offense must be found by a jury unanimously as a matter of
constitutional criminal procedure, see Richardson v. United
States, 526 U.S. 813, 119 S. Ct. 1707, 1710, 143 L. Ed. 2d
985 (1999), particularly all elements that make a defendant
death eligible, see Ring, 122 S. Ct. at 2431.
Mitigating factors, on the other hand, are not viewed as
- elements of the crime but rather as evidence relevant to a
defendant’s character or record or other circumstances of the
offense that might lead a sentencer to decline to impose the
death sentence. See McCleskey v. Kemp, 481 U.S. 279, 304,
95 L. Ed. 2d 262, 107 S. Ct. 1756 (1987). Accordingly, a
state may not require unanimity in finding mitigating factors.
Such a requirement “impermissibly limits jurors’
consideration of mitigating evidence.” McKoy, 494 U.S. at
444. In fact, as Mills and McKoy hold, any requirement that
mitigating factors must be found unanimously is incoherent.
See Mills, 486 U.S. at 400; McKoy, 494 U.S. at 442-43. A
unanimity requirement on mitigating factors would mean
that, if aggravating factors have been found by the jury, one
or more jurors who—in disagreement with other jurors—find
no mitigating factor, or find different mitigating factors, or
find that the aggravating factors do not outweigh mitigating
12a
factors found by some (but not all) of the jurors, or find that
no mitigating factor outweighs aggravating factors, could still
produce a death verdict or a hung jury, depending on how
State law treats the disagreement. Thus, in order for Eighth
Amendment law on mitigating factors to be coherent and
capable of judicial administration without serious confusion,
a capital jury must understand that, in the words of the
Federal Death Penalty Act, “a finding with respect to a
mitigating factor may be made by one or more members of
the jury.”
With that background about the development of Eighth
Amendment law regarding mitigating factors, we are now in
position to apply these principles to the facts of the instant
case. Our inquiry is “whether there is a reasonable likelihood
that the jury has applicd the challenged instruction in a way
that violates the Constitution.” Jones v. United States, 527
U.S. 373, 390, 144 L. Ed. 2d 370, 119 §. Ct. 2090 (1999); see
also Boyde v. California, 494 U.S. 370, 380, 108 L. Ed. 2d
316,110 §. Ct. 1190 (1990).
Ohio’s death penalty statute requires that in order for a
jury to recommend a sentence of death, it must unanimously
find that the aggravating circumstances outweigh any
mitigating circumstances present in the case. In the absence
of a unanimous finding that death is appropriate, the jury
must recommend imprisonment for a unanimously agreed-
upon specified term. n3 Although the Supreme Court has
indicated that the weighing of aggravating and mitigating
circumstances in death penalty cases is not _ itself
constitutionally required, once a state has adopted that
method of narrowing the class of persons eligible for the
death penalty and providing for individualized juror
consideration of the appropriateness of the death penalty in a
particular case, the Eighth Amendment requires that jurors
not be precluded from giving effect to the mitigatiag
evidence by an instruction requiring unanimity as to the
13a
presence of mitigating circumstances. See Mills, supra. Any
instruction requiring that a jury must first unanimously reject
the death penalty before it can consider a life sentence
likewise precludes the individual juror from giving effect to
mitigating evidence and runs afoul of Mills.
n3 Section 2929.03(D)(2) of the Ohio Revised
Code provides in relevant part:
Upon. consideration of the relevant evidence raised at
trial, the testimony, other evidence, statement of the
offender, arguments of counsel, and, if applicable, the
reports submitted pursuant to division (D)(1) of this
section, the trial jury, if the offender was tried by a
jury, shall determine whether the aggravating
circumstances the offender was found guilty of
committing are sufficient to outweigh the mitigating
factors present in the case. If the trial jury unanimously
finds, by proof beyond a reasonable doubt, that the
aggravating circumstances the offender was found
guilty of committing outweigh the mitigating factors,
the trial jury shall recommend to the court that the
sentence of death be imposed on the offender. Absent
such a finding, the jury shall recommend that the
offender be sentenced to [life imprisonment without
parole, life imprisonment with parole eligibility after
serving twenty-five full years of imprisonment, or life
imprisonment with parole eligibility after serving thirty
full years of imprisonment].
The Ohio Supreme Court has recognized that under
Ohio's death penalty statute, a sole juror can prevent the
death penalty if he or she individually finds that mitigating
circumstances are present in the case and does not agree that
the aggravating circumstances outweigh the mitigating
circumstances. See Ohio v. Brooks, 75 Ohio St. 3d 148, 661
N.E.2d 1030, 1042 (Ohio 1996). The resulting non-
9
2
14a
unanimous jury (as to the death penalty) must nevertheless
return a unanimous verdict as to which of the sentences of
imprisonment should be imposed.
Given the requirement of unanimity as to the jury’s
ultimate recommendation of either death or life under Ohio
law, it is not surprising that the unarticulated but
constitutionally required non-unanimous mechanism that will
prevent a recommendation of death is obscured to such an
extent that it cannot even be said to be implied by the
instructions in this case. Instead of instructing the jury that it
need not be unanimous in rejecting the death penalty, the trial
judge in this case told the jury that in order to return a verdict
for life imprisonment, “you must find that the State has failed
to prove beyond a reasonable doubt that the aggravating
circumstances which the defendant was found guilty of
committing outweigh the mitigating factors.” Immediately
thereafter, the Court instructed that “since this is a criminal
case the law requires that in order for you to reach a decision
all 12 of you must be in agreement.” The verdict form
likewise reflected a unanimity requirement in finding that the
aggravating circumstances do not outweigh the mitigating
circumstances, setting out twelve signature lines under the
statement, “We, the jury... do find that the Aggravating
Circumstances which the defendant, Wiley Davis, Jr., was
found guilty of committing are not sufficient to outweigh the
Mitigating factors present in this case beyond a reasonable
doubt.” This instruction, combined with the jury verdict
form, not only “could” but by its plain language “would”
lead a reasonable juror to conclude that the only way to get a
life verdict is if the jury unanimously finds that the
aggravating circumstances do not outweigh the mitigating
circumstances, an entirely different instruction from one that
clearly informs the jurors that a life verdict can be rendered
by a jury that has not first unanimously rejected the death
penalty. Further adding to the confusion, the jury was never
told, either expressly or impliedly, that individual jurors may
15a
consider mitigating circumstances in the weighing process
regardless of the lack of agreement with other jurors as to the
presence of that factor. In sum, the silence in these
instructions on the lack of unanimity required for mitigating
circumstances, the improper “acquittal-first” instruction, and
the unqualified instruction, “Now, as you know... the law
requires that in order for you to reach a decision all 12 of you
must be in agreement’”—would have led a reasonable jury to
apply an unconstitutional standard of unanimity at all stages
in the deliberative process.
The error in the present case is approximately the same as
the error described by Judge Becker in Frey v. Fulcomer, 132
F.3d 916 (3d Cir. 1997). In that case, the Court of Appeals
for the Third Circuit vacated a death sentence as violating
Mills where “the relevant portion of the jury charge
emphasized the importance of a unanimous finding, using the
phrase frequently and in close proximity—within seven
words of—the mitigating circumstances clause,” without
explaining that unanimity is not required in consideration of
mitigating evidence. /d. at 923. Here, as there, the trial
court’s instructions are silent as to the different unanimity
requirements for aggravating and mitigating circumstances,
making no mention of the individual juror’s power to prevent
the death penalty by giving effect to mitigating circumstances
absent the agreement of the other jurors regarding the
presence of those mitigating circumstances. Nor do they
make clear that the jury need not be unanimous in rejecting
death in order to render a verdict for life imprisonment. The
inescapable likelihood in this case that the jury understood
the instructions to require unanimity in both its ultimate and
interim conclusions violates Mills.
Our dissenting colleague has failed to describe the record
correctly with respect to the Ohio trial court’s unanimity
instruction regarding mitigating factors. In his dissenting
opinion immediately following this opinion, he says that the
a
sp Sit gant cliente
16a
Ohio trial court's unanimity instruction—‘“since this is a
criminal case, the law requires that in order for you to reach a
decision all 12 of you must be in agreement”—is “seventy
lines and a recess away” from the instruction on “weighing
mitigating factors” and is unrelated to mitigating factors.
This is simply wrong, as the record itself demonstrates.
As to aggravating and mitigating factors, the trial judge
instructed the jury that they must consider and sign one of
two verdict forms. The first form he read to them was the
verdict form for imposing the death penalty. He then said
immediately:
And there are twelve signature bars, where you would sign
that [verdict form], if that was your verdict.
The second verdict [form] as to Count One [acquittal of the
death penalty] says:
“We, the Jury in this case, being duly impaneled and
sworn, do find that the Aggravating Circumstances which the
defendant, Wiley Davis, Jr., was found guilty of committing
are not sufficient to outweigh the Mitigating Factors present
in this case beyond a reasonable doubt” and “We, the Jury,
recommend that the defendant, Wiley Davis, Jr. be sentenced
to life imprisonment with parole eligibility after serving’ —
and then down here there is an asterisk that says, “Insert in
ink either twenty (20) or thirty (30) full years of
imprisonment” and, again, twelve signature bars [for each of
you to sign]. (Emphasis added.)
Immediately following this instruction regarding their
finding that the aggravating circumstances “are not sufficient
to outweigh the mitigating factors” the court says:
17a
Now, as you know, since this is a criminal case the law
requires that in order for you to reach a decision all twelve of
you must be in agreement.
It is hard to conceive how this instruction concerning
unanimity and the need for each juror to sign one of the
twelve bars could be anymore plain that the jury must be
unanimous if it finds that one or more mitigating factors
outweighs the aggravating circumstances. This instruction—
in the words of Williams v. Taylor, 529 U.S. 362, 413, 146 L.
Ed. 2d 389, 120 S. Ct. 1495 (2000)—is clearly “opposite to
that reached by [the Supreme] Court on a question of law” in
the Mills and McKoy cases discussed above. Our dissenting
colleague is simply unable to get around the clarity of the
erroneous instructions that the jury must be unanimous as to
mitigators and that each juror must so attest by signing a
form demonstrating unanimity.
The “acquittal first” instruction and absence of any other
instruction which conflicts with the requirement of unanimity
on mitigators would simply reinforce in the mind of each
juror that unanimity was required for both aggravators and
mitigators.
Accordingly, the judgment of the district court is reversed
and the case remanded with instructions to issue the writ of
habeas corpus, unless the State of Ohio conducts a new
penalty proceeding within 180 days after remand. All other
issues in the case raise claims of error in the sentencing phase
of the case, and as such, are pretermitted in light of our
decision to issue the writ as to this phase of the case.
nb Cider Bik a ne eta BON hh
0 iw OSGi
18a
DISSENT
BOGGS, Circuit Judge, dissenting. Petitioner Davis’s claim
for habeas relief is reviewed by this court pursuant to the
dictates of the Anti-Terrorism and Effective Death Penalty
Act (“AEDPA”), 28 U.S.C. § 2254(d). As Davis does not
challenge any of the state court’s factual findings, this court
may grant the writ only “if the state court arrived at a
conclusion opposite to that reached by [the Supreme] Court
on a question of law or if the state court decided a case
differently than [the Supreme] Court has on a set of
materially indistinguishable facts ...,” or “if the state court
identified the correct governing legal principle from [the
Supreme] Court’s decisions but unreasonably applied that
principle to the facts of the prisoner's case.” Williams v.
Taylor, 529 U.S. 362, 413, 146 L. Ed. 2d 389, 120 S. Ct.
1495 (2000).
The court states that “in sum, the silence in these
instructions on the lack of unanimity required for mitigating
circumstances, the improper ‘acquittal-first’ instruction, and
the unqualified instruction, ‘Now, as you know... the law
requires that in order for you to reach a decision all 12 of you
must be in agreement’—would have led a reasonable jury to
apply an unconstitutional standard of unanimity at all stages
in the deliberative process.” Page 12. The court thus attacks
three parts of the instruction process: (1) what it calls an
“acquittal-first” instruction; (2) the failure to give an explicit
instruction that unanimity is not required for any individual
juror to find a mitigating factor; and (3) the giving of a
standard instruction that the return of a formal verdict
requires jury unanimity. Each of these three aspects of the
instructions is unexceptionable, and the action of the Ohio
19a
Supreme Court in upholding these instructions certainly does
not constitute an unreasonable application of any clearly
established precedent of the United States Supreme Court. I
will discuss each of these three aspects in turn.
The court also states that “the habeas petitioner argues
that these two interconnected instructions—the unanimity
instruction and the acquittal-first instruction—constitute
constitutional error under the Eighth Amendment because
there was a _ reasonable likelihood that jurors would
understand the instruction to mean that juror unanimity was
required to mitigate the punishment from death to life.”
Pages 3-4.
The court does not cite the place where Davis makes such
an argument, and I can find none. The court instead has
conflated several arguments in order to avoid precedent from
this circuit that would defeat any one of them alone.
A. “Acquittal-first” instruction
The Ohio Supreme Court rejected Davis’s argument that
the instruction given by the judge during his sentencing
phase was an improper “acquittal-first’” instruction that
would warrant reversal of his capital sentencing. State v.
Davis, 76 Ohio St. 3d 107, 666 N.E.2d 1099 (Ohio 1996).
After reviewing all of the instructions given in the case, the
court concluded that “it is clear that the jury was adequately
informed that unanimity was required to return a death
penalty recommendation. Each juror was made aware that he
or she could prevent a death penalty recommendation by
finding that the aggravating circumstances in the case do not
outweigh the mitigating factors....” 666 N.E.2d at 1109.
The question before this court is whether the Ohio Supreme
Court unreasonably applied the correct governing legal
principle, established in Mills v. Maryland, 486 U.S. 367, 100
L. Ed. 2d 384, 108 S. Ct. 1860 (1988), that “the sentencer
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may not refuse to consider or be precluded from considering
any relevant mitigating evidence ....” /d. at 374-75 (citing
Skipper v. South Carolina, 476 U.S. 1, 4, 90 L. Ed. 2d 1, 106
S. Ct. 1669 (1986) (quoting Eddings v. Oklahoma, 455 U.S.
104, 114, 71 L. Ed. 2d 1, 102 S. Ct. 869 (1982)) (internal
quotes and added emphasis omitted)).
The objection to “acquittal-first” instructions is not to the
order of consideration, but to the possibility that a juror may
be led to believe that the jury must first unanimously reject
death before considering a life sentence, rather than allowing
a single juror to prevent a death sentence by creating a
deadlock. However, the Constitution does not forbid a jury
from considering a death sentence before considering a life
sentence. This issue was squarely addressed by this court in
Coe v. Bell, 161 F.3d 320, 339-40 (1998). See also Roe v.
Baker, 2002 U.S. App. LEXIS 22645, 2002 WL 31426248,
*4-*6 (6th Cir. Oct. 31, 2002); Henderson v. Collins, 262
F.3d 615, 621-22 (6th Cir. 2001) (discussing instruction in
considering constitutionality of subsequent Allen charge),
Scott v. Mitchell, 209 F.3d 854, 873-76 (6th Cir. 2000).
The relevant Ohio statute provides:
If the trial jury unanimously finds, by proof beyond a
reasonable doubt, that the aggravating circumstances the
offender was found guilty of committing outweigh the
mitigating factors, the trial jury shall recommend to the court
that the sentence of death be imposed on the offender. Absent
such a finding, the jury shall recommend that the offender be
sentenced to life imprisonment with parole eligibility after
serving twenty full years of imprisonment or to life
imprisonment with parole eligibility after serving thirty full
years of imprisonment.
Ohio Rev. Code Ann. § 2929.03(D)(2) (1994). The very
structure of the statute implies that jurors may first consider
2la
the death penalty. It is clear that a unanimous finding is
required in order to recommend death; however, the language
“absent such a finding” implies that a unanimous finding is
not required in order to reject the death penalty. Yet,
unanimity among the jurors is required in order to impose
one of the life sentences. State v. Jenkins, 15 Ohio St. 3d 164,
1S Ohiv B. 311, 473 N.E.2d 264, 307 (Ohio, 1984) (“we
conclude in returning a sentence of life imprisonment under
R.C. 2929.03(D)(2), the jury’s verdict must be unanimous”).
The court claims that the “unarticulated but
constitutionally required non-unanimous mechanism that will
prevent a recommendation of death is obscured to such an
extent that it cannot even be said to be implied by the
instructions in this case.” Page 11. However, this circuit has
held that there is no constitutional requirement that a judge
inform the jury as to the effect of a failure to be unanimous in
reaching a verdict. See Coe, 161 F.3d at 339-40. In Jones v.
United States, 527 U.S. 373, 144 L. Ed. 2d 370, 119 S. Ct.
2090 (1999), the Supreme Court held the same thing in the
context of the Federal Death Penalty Act. In State v. Brooks,
75 Ohio St. 3d 148, 661 N.E.2d 1030 (Ohio 1996), the Ohio
Supreme Court held that Ohio state courts must instruct the
jury that a solitary juror may prevent imposition of the death
penalty. 66/ N.E.2d at 1040-42. This rule is prospective, and
was not in force when Davis was sentenced to death.
Regardless, “the fact that [an] instruction was allegedly
incorrect under state law is not a basis for habeas relief.”
Estelle v. McGuire, 502 U.S. 62, 71-72, 116 L. Ed. 2d 385,
112 S. Ct. 475 (1991). The court appears to impose this rule
on Ohio courts retroactively and institute a requirement that
jurors be apprised of the effect of their individual power to
deadlock the jury.
The contrast between the instructions at issue here, and
the instructions in Brooks, is illuminating. In Brooks, the
judge stated to the jury as follows: “You are now required to
$i —, ee
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22a
determine unanimously that the death penalty is
inappropriate before you can consider a life sentence.” 66/
N.E.2d at 1040. Such an instruction is thought to violate
Mills and McKoy v. North Carolina, 494 U.S. 433, 108 L. Ed.
2d 369, 110 S. Ct. 1227 (1990) because it may lead a juror to
believe that the sufficiency of mitigating factors has to be
found unanimously; and also may lead a juror to believe that
unless all jurors are disposed to grant mercy, that a defendant
must be sentenced to death.
The very same court that decided Brooks stated that the
instructions in Davis’s sentencing phase were distinguishable
from those in Brooks because the jury was never instructed
that it must unanimously reject the death penalty before it
could consider the life sentences. Davis, 666 N.E.2d at 1109.
The majority correctly notes that the court in Davis stated
that the instructions “lacked the clarity of the model
instruction contemplated in Brooks.” Ibid. However, there is
no constitutional requirement “to be a model of clarity”;
moreover, the lack of clarity did not preclude the Ohio
Supreme Court from finding that the jurors in the instant case
were adequately instructed that unanimity in rejecting the
death penalty was not required before they could consider the
life sentences.
Indeed, the instructions in this very case, State v. Davis,
were used by both the majority and the dissent in Henderson
v. Collins, 262 F.3d 615 (6th Cir. 2001), to demonstrate
permissible instructions. Notably, the dissent in Henderson
(favoring the reversal of a death sentence) discussed the Ohio
Supreme Court’s consideration of further instructions given
to the jury in this case. The dissent notes that after the judge
instructed the jury regarding the death penalty and the life
sentences, the judge went on to caution the jurors:
Now, your initial conduct upon entering the jury room, again,
is a matter of importance. You should consult with each
23a
other; consider each other’s views, and deliberate with an
objective of reaching an agreement, if you can do so, without
doing violence to your individual conscience and good
judgment.
You should do so only after a discussion and a consideration
of the case with your fellow jurors.
Remember, each of you is equal in the jury room, and you
shouldn’t hesitate to change your opinion if convinced by
your fellow jurors that you are wrong.
However, do not surrender any honest conviction in order to
be congenial, or to reach a verdict solely of the belief of the
other jurors.
Id. at 627 (Clay, J., dissenting) (citing Davis, 666 N.E.2d at
1109) (added emphasis omitted). These instructions track
almost exactly the Ohio pattern jury instructions regarding
“Conduct while deliberating.” Ohio Jury Instructions
§ 413.70. The dissent in Henderson noted that the Ohio
Supreme Court reviewed all the instructions and concluded
that each juror was aware of his or her ability to prevent a
death penalty recommendation. /bid. (Clay, J., dissenting).
The Ohio Supreme Court's decision was not an
unreasonable application of Mills or McKoy. The court's
conclusion to the contrary squarely contradicts binding Sixth
Circuit precedent.
B. Lack of unanimity required for mitigating
circumstances
The court is also troubled because “the jury was never
told, either expressly or impliedly, that individual jurors may
consider mitigating circumstances in the weighing process
rears
24a
regardless of the lack of agreement with other jurors as to the
presence of that factor.” Pages 11-12. This also purportedly
violates the dictates of Mills.
The Supreme Court in Mills vacated the petitioner’s death
sentence and remanded the case to the Maryland Court of
Appeals for resentencing. The Court took issue with the
structure of the Maryland sentencing scheme. In that scheme,
the verdict forms provided to the jury listed each aggravating
circumstance the prosecution was attempting to prove. The
jurors then collectively had to write “yes” or “no” next to
each factor, indicating whether they unanimously believed
that the prosecution had proved each aggravating factor
beyond a reasonable doubt. A similar form was presented to
the jury for mitigating factors. After filling out the forms, the
jurors would proceed to the weighing stage, at which time
they would decide, unanimously, whether the aggravating
factors outweighed the mitigating factors. The Supreme
Court concluded that the risk was too great that, in Maryland,
a juror would believe that in order for a mitigating factor to
be considered in the weighing process, that it would have to
be unanimously found present.
This is a far cry from the situation presented in this case.
There is no indication anywhere in the instructions that each
mitigating factor had to be agreed to unanimously. The judge
instructed the jury that they were to weigh the evidence
presented and determine whether the aggravating factors
were sufficient to outweigh “any mitigating factor or factors
you find that are present in this case.” Transcript, p. 1888.
The judge then instructed the jury that if the state failed to
prove beyond a reasonable doubt that the aggravating
circumstances outweighed the mitigating factors, then they
were to return a verdict reflecting this finding. Transcript, p.
1889.
25a
Nowhere in the instructions did the judge state, or even
imply, that jurors were restricted to considering mitigating
factors that all the jurors had agreed were present. Such an
instruction would violate McKoy v. North Carolina, in which
the Supreme Court found unconstitutional any requirement
that “prevents the jury from considering, in deciding whether
to impose the death penalty, any mitigating factor that the
jury does not unanimously find.” 494 U.S. at 435. However,
that is all that McKoy says. Nowhere does it state that silence
in instructions on the lack of a unanimity requirement for
mitigating circumstances violates the Eighth Amendment.
The instructions in this case are very similar to those
found unobjectionable in Coe and Roe. In Coe, the court
found that nothing in the instructions could reasonably lead a
juror to believe that unanimity was required as to the
presence of a mitigating factor. The court stated that the
instructions “required unanimity as to the results of the
weighing, but this is a far different matter than requiring
unanimity as to the presence of a mitigating factor.” /6/ F.3d
at 338. As in the instructions here, it was clear that the
unanimity requirement applies to the weighing process, and
not the presence of a mitigating factor.
The trial court here instructed the jury that “it is not only
the quantity of the aggravating circumstances versus the
quantity of mitigating factors which is to be the basis of your
decision. It is the quality or importance of the mitigating
factors and the aggravating circumstances which must be
considered.” Transcript, p. 1887. This strongly implies that
each juror was to make his or her own independent judgment
regarding each factor. While the jury was instructed on the
unanimity requirement in finding aggravating factors, there
was no parallel instruction regarding mitigating factors. The
jury was specifically instructed as to those decisions in which
unanimity was required. Any reasonable juror would
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26a
understand that where unanimity is not specifically
instructed, those decisions should be made independently.
The state courts never reached the issue of any alleged
unanimity requirement regarding the mitigating factors, as
this claim was never presented to the state courts, the district
court, nor to this court. But in failing to strike down this
instructional system, the state court did not unreasonably
apply Supreme Court precedent.
The court likens this case to Frey v. Fulcomer, 132 F 3d
916 (3d Cir. 1997). The court in Frey found particularly
objectionable a portion of a sentence in the jury instructions
that read “if the jury unanimously finds at least one
aggravating circumstance and no mitigating
circumstance ....” Jd. at 923. It was the propinquity, in the
same sentence, within seven words, of “unanimously” and
the mitigating circumstances clause that led the court to
conclude that a juror might believe that a unanimous finding
was required as to mitigating circumstances. [hid. However,
the court in Frey distinguished the instructions from another
set of instructions that it had found unobjectionable in
Zettlemoyer v. Fulcomer, 923 F.2d 284 (3d Cir. 1991). In
Zettlemoyer, the court found that the instructions only
required “unanimity in the ultimate conclusion, and not in the
interim findings leading to that conclusion.” Frey, 132 F.3d
at 923. The separation between “unanimously” and the
mitigating circumstances clause in Zettlemoyer was
seventeen words, even though it was still in the same
sentence. /hid. Here, the court also contends that the absence
of an instruction notifying the jury that a unanimous finding
is not required as to mitigating circumstances makes this case
like Frey. In fact, the court in Frey specifically stated that
“the absence of such an express statement is not dispositive”
and stated that such an instruction is only one means that a
trial court could use to clarify its instructions to the jury. Id.
at 923 n.5,
27a
This court has held that a trial court may instruct the jury
that it must be unanimous in finding an aggravating factor,
and may be silent as to the lack of a unanimity requirement in
finding mitigating circumstances. Kordenbrock v. Scroggy,
919 F.2d 1091, 1120 (6th Cir. 1990) (en banc) (Judge
Kennedy, announcing the holding of the court with respect to
the jury instructions on unanimity). The court in
Kordenbrock stated that since the trial court announced a
unanimity requirement as to aggravating factors, but was
silent as to mitigating factors, “it cannot be reasonably
inferred that silence as to finding a mitigating factor would
likely cause the jury to assume that unanimity was also a
requirement. Indeed it would indicate the opposite.” 9/9 F.2d
at 1121. Judge Merritt wrote, contra to the majority holding
on this issue, that “the verdict of death may not have been
imposed had they understood that one juror could block the
death sentence if he or she believed there were sufficient
mitigating circumstances.” /d. at 1110. This is essentially the
same position he takes in the instant case. However, as the
court held in Kordenbrock, it is not constitutionally required
that the jury be so instructed.
The court states that the instruction “you must find that
the State has failed to prove beyond a reasonable doubt that
the aggravating circumstances which the defendant was
found guilty of committing outweigh the mitigating factors”
was followed “immediately thereafter” by the instruction
“since this is a criminal case the law requires that in order for
you to reach a decision all twelve of you must be in
agreement.” Page 11. In fact, these two instructions are
separated by about 70 lines of the transcript, and,
additionally, by a recess taken by the court because the
verdict forms were not in order. Compare Transcript p. 1889,
line 18 with Transcript p. 1892, line 18.
sneer
28a
C. Instruction on unanimous verdict
The court also finds it objectionable that the verdict
forms reflected a unanimity requirement in finding that the
aggravating circumstances do not outweigh the mitigating
circumstances. Again, this court has held repeatedly that
requiring unanimity as to the results of the weighing process
does not offend due process. Roe, 2002 U.S. App. LEXIS
22645, 2002 WL 31426248 at *5; Coe, 161 F.3d at 338.
It is difficult to say what the court’s argument is at all. Its
conclusion is that there is an “inescapable likelihood” that the
jury in this case “understood the instructions to require
unanimity in both its ultimate and interim conclusions... .”
Page 12. However, there are only two places where a
unanimity requirement has been held to be unconstitutional:
(1) to reject the death penalty, and (2) as to the presence of a
mitigating factor. Reviewing the instructions in total, there is
not a word that would lead any reasonable juror to
understand that unanimity was required in these two
instances. The court would require that trial courts spell this
out. Indeed, Ohio now requires its trial courts to instruct
juries that one juror has the ability to block the death penalty.
However, that is a matter of state law, not federal law. In
fact, both this court and the Supreme Court [have] chastised
such instructions as encouraging deadlock and undermining
the strong governmental interest in unanimous verdicts.”
Roe, 2002 U.S. App. LEXIS 22645, 2002 WL 31426248 at *5
(quoting Scott, 209 F.3d at 877); Scott, 209 F.3d [*697} at
877 (citing Jones v. United States, 527 U.S. 373. 382-84, 144
L. Ed. 2d 370, 119 §. Ct. 2090 (2000)).
The trial court correctly instructed the jury on mitigating
and aggravating factors, in accordance with Ohio law at the
time and with our court’s cases, both before and since. These
instructions occupied pages 1869-75 and 1881-90 of the
transcript.
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The trial court then began to explain the actual verdict
forms. As is required by law, it noted that a verdict
recommending death required unanimity as to the existence
of aggravating factors, unanimously found by the jury (which
it had already done, in its penalty phase determinations), that,
in the opinion of each juror, outweighed the mitigating
factors. The trial court had previously instructed the jury on
finding mitigating factors, with no unanimity mentioned.
The trial court then explained the verdict forms
recommending life imprisonment. Again, the trial court
truthfully told the jury that such a verdict required each juror
to agree to it. It would have been a falsehood for the judge to
tell the jury that it could return a verdict recommending life
with parole in 20 years, or life with parole in 30 years,
without each juror signing that form.
That is all that the judge did; and he was completely
truthful and legally correct in so doing. This discussion
occupies 60 lines of transcript at pages 1890-92.
Finally, having concluded the discussion of the verdict
forms, the judge simply reinforced the correct statement of
the law that a verdict had to be unanimous. This use of the
words “to reach a decision all twelve of you must be in
agreement” was 70 lines nl and a recess away from the
instruction on finding and weighing mitigating factors, as
opposed to the 17-word distance that the Third Circuit found
acceptable, and wildly different from the 7-word distance
that the court found unconstitutional in Frey (albeit before
AEDPA and thus not under the more stringent standard
established by that law).
nl As is obvious from his final response (pages 12-13),
Judge Merritt and I share a difference of opinion as to what is
“the Ohio trial court’s unanimity instruction regarding
30a
mitigating factors.” As I carefully explain above, the
instructions are given at pages 1869-75 and 1881-90. The
accurate recitation of the verdict forms occurs at transcript
pages 1890-92. A correct reading of a constitutionally
unexceptionable verdict form is not “an instruction.”
As nearly as I can gather, the court’s complaint is that the
judge did not instruct the jury to the effect that “any one of
you can prevent the imposition of the death penalty on this
defendant, simply by refusing to sign the death verdict. You
can do so for any reason or for no reason.” While that is a
correct statement of existential truth, no case, and certainly
no Supreme Court case, has come close to requiring that such
an instruction be given.
The court’s opinion as to what a reasonable Ohio jury
would believe from the instructions in this case is, in my
opinion, a gross libel on the intelligence and understanding
of those jurors. I therefore respectfully dissent.
31a
APPENDIX B
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
No. 00-4193
WILEY DAVIS, JR.,
Petioner-Appellant,
V.
BETTY MITCHELL, WARDEN,
Respondent-Appellee.
Filed: April 25, 2003
Before: MERRITT, BOGGS, and MOORE, Circuit Judges.
COUNSEL
For Wiley Davis, Jr. Petitioner - Appellant: John Patrick
Parker, Cleveland, OH. Laurence E. Komp, Baldwin, MO.
For BETTY MITCHELL, Warden, Respondent - Appellee:
Charles L. Wille, Attorney General's Office of Ohio, Capital
Crimes Section, Columbus, OH.
ORDER
The court having received a petition for rehearing en
banc, and the petition having been circulated not only to the
Original panel members but also to all other active judges of
this court, and no judge of this court having requested a vote
32a
on the suggestion for rehearing en banc, the petition for
rehearing has been referred to the original panel.
The panel has further reviewed the petition for rehearing
and concludes that the issues raised in the petition were fully
considered upon the original submission and decision of the
case. Accordingly, the petition is denied. Judge Boggs would
grant rehearing for the reasons stated in his dissent.
|
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APPENDIX C
UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
CASE NO. 1:99-CV-1649
WILEY DAVIS, JR.,
Petitioner,
V.
BETTY MITCHELL, WARDEN,
Respondent.
Decided and Entered: August 23, 2000
Before: James S. Gwin, United States District Judge.
COUNSEL
John P. Parker, Cleveland, Ohio; Patricia A. Millhoff, Akron,
Ohio; Charles L. Wille, Mathew J. Lampke, Office of the
Attorney General, Columbus, Ohio; Jon W. Oebker, Office
of the Attorney General, Cleveland, Ohio.
OPINION BY: James S. Gwin
OPINION
In this death penalty case, Petitioner Wiley Davis, Jr.,
petitions for a writ of habeas corpus. In support of his
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petition, Davis says constitutional error attended his
conviction and resulting death sentence.
Respondent Warden Betty Mitchell says Petitioner Davis
is not entitled to a writ of habeas corpus. First, Respondent
Mitchell maintains that Petitioner Davis has procedurally
defaulted many of his claims for relief. With regard to the
remaining claims, Respondent Mitchell argues that Petitioner
Davis either fails to show any constitutional violation or
raises claims not cognizable on habeas review.
For the reasons set forth below, the Court finds that
Petitioner Davis has failed to establish his right to a writ of
habeas corpus. Accordingly, the Court denies Davis’s
petition.
I. Overview
In evaluating the petition, the Court first describes the
facts relating to Petitioner Davis’s crime of conviction.
Second, the Court reviews Davis’s direct appeals and
attempts to receive post-conviction relief. Third, the Court
decides whether Davis has exhausted his state remedies and
has procedurally defaulted any of his grounds for relief.
Fourth, the Court considers Davis’s request for an
evidentiary hearing. Fifth, the Court sets forth the standard of
review applicable to Davis’s petition. Finally, the Court
substantively reviews Davis’s grounds for relief.
II. Factual Background
Currently, Petitioner Wiley Davis awaits execution for
the murder of Amy Perkins. A jury found that Davis
murdered Perkins on November 26, 1991, shortly after
kidnapping her from a downtown Cleveland parking lot.
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On that date, Davis was observed at the kidnapping scene
at 8:15 a.m. At a downtown Cleveland parking lot, parking
lot patron Mattie Baker observed Davis pacing back and
forth in the parking lot as she parked her car. By the time
Baker exited her car, Davis was no longer in sight.
Having forgotten her parking space number, Baker soon
returned to her vehicle. As she returned, Baker saw Davis
sitting in the driver’s seat of the car parked next to her
vehicle. Baker described the car as a small gray Toyota with
Texas license plates. Amy Perkins owned the vehicle. Baker
testified that a white female sat in the passenger’s seat of the
car. The female had a “terrified look” on her face, prompting
Baker to seek help. However, the car leit the parking lot
before Baker was able to find any assistance.
Within an hour of Baker’s encounter with Davis,
Gwendolyn Brice saw Amy Perkins’s car sitting at a stop
sign near Brice’s home. She saw a woman in the car motion
as if to push something away just before a “pop” sound
emanated from the vehicle. Brice then saw the passenger side
window shatter and the woman’s head drop.
Shortly thereafter, Marjorie Johnson arrived at Brice’s
house and parked behind Perkins’s car. Johnson saw a black
male in the driver’s seat and a white female in_ the
passenger’s seat. The female’s head was hanging out of the
window. Upon seeing Johnson, the driver pulled away at a
high rate of speed.
Nancy Brown next spotted Perkins’s vehicle as she
waited with her son and his friends for their school bus to
arrive. Brown the car cross the intersection near the bus stop
while the driver struggled to close the passenger’s door.
After the car passed, the children told Brown they saw
someone lying in some nearby bushes. Brown ran to the
36a
bushes, where she discovered a nude white female struggling
to speak. After calling 911 from a house in the area, Brown
covered the woman with a borrowed blanket.
The ambulance arrived and took the woman to the
hospital, where she eventually died. David Perkins later
identified the woman as his wife, Amy Perkins.
Soon after the shooting, the police located Amy Perkins’s
gray Toyota in the parking lot of a deli. The car contained
shattered glass and fresh blood. Approximately five to ten
feet from the driver’s side of the car, the police recovered a
Federal .32 caliber shell casing. Inside the car, the police
found Amy Perkins’s clothing, checkbook, and some
personal items. They appeared to have been rifled through.
Later that morning, Petitioner Davis appeared at his
sister's house. Davis’s sister lived approximately three
hundred yards from the Toyota’s final location. After coming
into his sister’s house, Davis told his sister and her boyfriend
that he had accidentally shot someone during an altercation.
He then asked his sister’s boyfriend, Alfonso Herring, Jr., to
give him a change of clothes and to hide his gun. Herring
agreed. After changing out of his blood-stained sweatsuil,
Davis left his sister’s home at 9:40 a.m.
A few hours later, Cleveland police officers arrested
Davis at his girlfriend’s house. A search of the house
uncovered a box of Federal brand .32 caliber ammunition and
a blood-stained right shoe. Herring later gave to the police
Davis’s gun and the clothes Davis had worn on the morning
of Amy Perkins’s murder.
Firearm testing showed that the gun Davis gave to
Herring had fired the casing found in the deli parking lot.
And the Cuyahoga County Coroner’s Officer identified the
37a
blood stains on Davis’s shoe and sweatsuit as Type O—the
same type as Amy Perkins.
Regarding the state’s later claim that Amy Perkins was
murdered during the course of a robbery, the police did not
recover any jewelry from the car or Perkins’s body.
However, David Perkins testified that his wife always wore a
custom-made engagement wedding ring and a Rolex watch
He said these items had been missing since Amy’s death.
On December 5, 1991, the Cuyahoga County Grand Jury
indicted Davis on a six-count indictment. The first two
counts charged aggravated murder under Ohio Revised Code
§ 2903.01(A) and (B). Each count carried three felony—
murder capital specifications-kidnapping, aggravated
robbery, and rape or attempted rape. The remaining counts
charged kidnapping nl, rape n2, aggravated robbery n3, and
having a weapon while under a disability. n4
nl See OHIO REV. CODE § 2905.01.
n2 See OHIO REV. CODE § 2907.02.
n3 See OHIO REV. CODE § 2911.01.
n4 See OHIO REV. CODE § 2923.13.
Davis was tried before the Cuyahoga County Court of
Common Pleas. The jury convicted Davis on all counts and
all specifications thereto. Following the — jury’s
recommendation, the trial court sentenced Davis to death.
The court also ordered Davis to spend the twenty-sixth day of
each month in solitary confinement until his execution.
III. Procedural Background
Following his conviction, Petitioner Davis appealed to
the Cuyahoga County Court of Appeais. In 1995, the
appellate court affirmed Davis’s conviction, and set aside
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38a
only that portion of Davis’s sentence calling for his
placement in solitary confinement on the anniversary of Amy
Perkins’s death.
After the Cuyahoga County Court of Appeals affirmed
his conviction, Petitioner Davis sought review with the Ohio
Supreme Court, In 1996, the Ohio Supreme Court affirmed
both Davis’s conviction and sentence.
Davis next filed a state-court petition for post-conviction
relief. After the state trial court denied the petition, Davis
sought review with the Cuyahoga County Court of Appeals.
In 1998, the appellate court affirmed the trial court's
decision. Davis then filed an appeal with the Ohio Supreme
Court. The Ohio Supreme Court declined to exercise
jurisdiction.
On January 7, 2000, Davis filed his petition for a writ of
habeas corpus. The Court now considers his petition.
IV. Exhaustion and Procedural Default
1. Exhaustion
A habeas corpus petitioner must exhaust his available
| state remedies before petitioning for a writ of habeas corpus.
, See 28 U.S.C. §2254(b). To determine whether the
exhaustion requirement is met, the Court examines whether
the petitioner “has the right under the law of the State to
; raise, by any available procedure, the question presented.” 28
i U.S.C. § 2254(c).
As explained in Part II, Petitioner Davis has pursued all
opportunities for relief at the state level, both on direct appeal
and in post-conviction proceedings. Petitioner Davis has thus
exhausted available state court remedies.
39a
2. Procedural Default
Federal courts “will not review questions of federal law
decided by a state court if the decision of that court rests
upon a state law ground that is independent of the federal
question and adequate to support the judgment.” Coleman v.
Thompson, S01 U.S. 722, 729, 115 L. Ed. 2d 640, 111 S. Ct.
2546 (1991). Applied to the habeas context, this doctrine
stops federal court review of claims that a state court has
declined to address because of the _ petitioner’s
noncompliance with a state procedural requirement. See
Wainwright v. Sykes, 433 U.S. 72, 87, 53 L. Ed. 2d 594, 97 S.
Cr. 2497 (1977). “In these cases, the state judgment rests on
independent and adequate state procedural grounds.”
Coleman, S501 U.S. at 730.
The United States Court of Appeals for the Sixth Circuit
has established a four-step analysis to determine whether a
claim has been procedurally defaulted. See Maupin v. Smith,
785 F 2.5 135 (6th Cir. 1986). Under this test, the Court must
determine (1) whether the petitioner failed to comply with an
applicable state procedural rule; (2) whether the state courts
actually enforced the state procedural sanction; (3) whether
the state procedural bar is an “adequate and independent”
state ground on which the state can foreclose federal review;
and, if the previous elements are met, (4) whether the
petitioner has demonstrated “cause” and “prejudice.” /d.
Respondent Mitchell contends that Petitioner Davis has
procedurally defaulted Claims for Relief 2, 4 (PP 18-29), 5,
8, 12 (PP85-90), 18 and 19. According to Respondent
Mitchell, Davis never presented Claim 12 (P 86) to the state
courts, and thus is barred from pursuing this claim in his
habeas petition. Respondent Mitchell says the remaining
claims are barred by either Ohio’s contemporaneous
objection rule or the doctrine of res judicata. The Court
considers each of these arguments in turn.
‘ee
SAN arr MR Fre.
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1. Claims Never Presented to State Courts
Respondent Mitchell states that Claim 12 (P86) was
never raised in state court. The Court finds that the
arguments made in both P 86 and P 91 of Claim 12 are
barred.
In P 86, Petitioner Davis argues that the prosecution
“elicited testimony designed to inflame and prejudice the jury
when the jury was advised that the victim’s husband had
requested, and was granted the opportunity to speak face to
face with the defendant.” After reviewing Davis’s direct
appeals, the Court finds that Davis has raised this argument
for this first time in his habeas petition.
In P 91, Petitioner Davis says the prosecution
“improperly argued that the juries [sic] verdict was only a
recommendation in an effort to lead the jury to believe that
the responsibility for determining the appropriateness of a
death sentence rests elsewhere.” Davis did not raise this
argument on direct appeal. Davis argued only that the trial
court improperly instructed the jury as to its advisory role in
recommending a penalty; he never claimed the prosecution
made any improper argument regarding the jury’s role.
Ordinarily, issues raised for the first time in a habeas
corpus petition are remanded to the state court. However,
Petitioner Davis is barred from presenting these arguments in
state court because he had the opportunity, but failed to do
so, during his state court proceedings. See State v. Perry, 10
Ohio St. 2d 175, 179, 226 N.E.2d 104, 107 (1967) (holding
that a constitutional issue cannot be considered in post-
conviction proceedings where they have already been or
could have been fully litigated before judgment of conviction
or on direct appeal from that judgment).
4la
A claim not originally brought in state court that in turn
has no state court remedy is procedurally barred. See Riggins
v. McMackin, 935 F.2d 790 (6th Cir. 1991). Accordingly, the
Court finds that the arguments raised in P 86 and P 91 of
Claim 12 are procedurally defaulted. n5
n5 Even if not barred, these claims lack merit. The Court
finds nothing inflammatory in the prosecution’s remarks
about David Perkins’s face-to-face meeting with Petitioner
Davis. This comment in no way infected Davis’s trial with
sufficient prejudice as to deny Davis due process. See
Darden v. Wainwright, 477 U.S. 168, 181, 91 L. Ed. 2d 144,
106 S. Ct. 2464 (1986).
And contrary to Davis's contention in P 91, the trial court
properly instructed the jury regarding its advisory role in
sentencing Petitioner Davis. The court merely informed the
jury that the trial court would ultimately sentence Davis. This
is an accurate statement of Ohio law. See OHIO REV. CODE
§ 2929.03(D)(3). Such an instruction does not run afoul of
the Constitution.
2. Contemporaneous Objection Rule
Respondent Mitchell argues that Claim 2 and portions of
Claim 12 (PP 87-90) are procedurally defaulted under Ohio’s
contemporaneous objection rule. The Court finds that all but
Claim 12 (P 88) are barred.
Under Ohio’s contemporaneous objection rule, an
appellant who fails to either object or request a specific
instruction at trial waives later review of the issue unless he
shows plain error. See State v. Smith, 89 Ohio St. 3d 323,
332, 731 N.E.2d 645, 655 (2000). Plain error involves an
error that so adversely affects the rights of the accused “‘as to
feed s<atipien SR INE SSN lath Aaa eee SR hai? ee BS Ry inks
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42a
undermine the fairness of the guilt-determining process.”
State v. Swanson, 16 Ohio App. 3d 375, 377,476 N.E.2d 672,
675 (Ohio Ct. App. 1984).
The Ohio Supreme Court found that Davis had failed to
raise a timely objection with regard to the allegations he sets
forth in Claim 2 and all but one of the allegations he raises in
Claim 12 (PP 87-90). The court then reviewed Davis's
claims for plain error and found no error so serious that it
undermined the fairness of Davis’s trial.
“Default imposed for failure to object
contemporaneously ... is an adequate and independent state
ground to bar federal habeas review absent a showing of
cause and prejudice.” Scott v. Mitchell, 209 F.3d 854, 567
(6th Cir. 2000) (citing Engle v. Isaac, 456 U.S. 107, 124-29,
71 L. Ed. 2d 783, 102 S. Ct. 1558 (1982)). Petitioner Davis
has made no attempt to show either cause or prejudice
regarding his failure to raise contemporaneous objections at
trial. Thus, Claims 2 and 12 (PP87 and 89-90) are
procedurally defaulted. n6
n6 Again, these claims would not avail Petitioner Davis
in any event. In Claim 2, Davis takes issue with the wording
of one of the counts in the indictment. Count two charges
Davis with killing Perkins in connection with the
commission of “Kidnapping and/or Aggravated Robbery
and/or Attempted Rape.” According to Davis, the use of the
disjunctive led the jury to believe it did not have to
unanimously find Davis committed one of the listed felonies.
But the Ohio Supreme Court convincingly explained why
the alleged wording error was not outcome-determinative:
Although Count Two was worded disjunctively, both it and
Count One carried a separate felony-murder specification for
each of the felonies alleged. The jury convicted Davis of
43a
each specification individually. The jury also separately
convicted Davis of kidnapping (Count Three) and aggravated
robbery (Count Four). Because the jury made a separate,
unanimous finding of guilt as to each of the predicate
felonies, there is no plain error.
State v. Davis, 76 Ohio St. 3d 107, 118, 666 N.E.2d 1099,
1109 (1996).
Davis also argues in Claim 2 that the trial court should
not have imposed the death penalty without the jury first
finding that he acted with premeditation or that he was the
principal offender. See OHIO REV. CODE § 2929.04(A)(7).
However, in finding Davis guilty of aggravated murder, the
jury necessarily concluded Davis acted with prior calculation
and design. And in the absence of any evidence suggesting
that a second actor participated in committing the aggravated
murder, the jury’s guilty verdict includes a finding that Davis
acted as the principal offender.
In Claim 12 (P 87), Davis contends that the prosecution
inflamed the jury by stating that Perkins’s husband had to
live with his wife’s horrible death. This comment, even if
improper, did not infect the trial with such extensive
unfairness so as to deny Davis his due process rights. See
Wainwright, 477 U.S. at 181.
In Claim 12 (PP 89, 90), Davis says the prosecution
improperly argued nonstatutory aggravating factors. Though
perhaps a violation of state law, the prosecution’s comments
do not run afoul of federal law. And absent a violation of
federal law, Davis is not entitled to habeas relief. See Estelle
v. McGuire, 502 U.S. 62, 67, 116 L. Ed. 2d 385, 112 S. Ct.
475 (1991).
44a
Respondent Mitchell also contends that Petitioner Davis
has procedurally defaulted Claim 12 (P 88). In this ground
for relief, Davis alleges “the prosecutor improperly argued
that the wound in the victim's head was so large and the day
so cold that one could see steam flowing from her head.” The
Ohio Supreme Court found that Davis had objected to this
comment at trial and proceeded to review the claim on its
merits. Thus, Claim 12 (P 88) is preserved for habeas review.
3. Res Judicata
Respondent Mitchell states that Claims 4 (PP 18, 27, and
29), 5, 8, 12 (P 85), 18, and 19 are barred based on the
doctrine of res judicata. In response, Petitioner Davis argues
only that res judicata is not an adequate and independent
ground to bar federal habeas review. The Court disagrees.
Under Ohio law, an issue which is not raised by a
petitioner on direct appeal is subsequently barred based on
the doctrine of res judicata. See, e.g., State v. Combs, 100
Ohio App. 3d 90, 97, 652 N.E.2d 205, 209 (Ohio App. Ct.
1994) (holding that post-conviction relief is not available for
claims that could have been raised on direct appeal based on
res judicata.); Perry, 10 Ohio St. 2d at 177, 226 N.E.2d at
106 (syllabus). Such issues are considered waived for federal
habeas purposes. See Norris v. Schotten, 146 F.3d 314, 332
(6th Cir. 1998) (quoting Rust v. Zent, 17 F.3d 155, 160 (6th
Cir. 1994)).
Challenging this authority, Petitioner Davis says res
judicata is not an “adequate” ground for foreclosing habeas
review. Davis claims that res judicata is not adequate
because Ohio courts do not consistently apply the rule in
capital cases. This argument is incorrect.
The Sixth Circuit has recognized res judicata as an
independent and adequate ground upon which to stop
45a
consideration of habeas claims. See Schotten, 146 F.3d at
332; Wong v. Money, 142 F.3d 313, 322 (6th Cir. 1998).
Ohio’s “abundance of caution” in capital cases does not
imply that this Court may ignore Ohio’s “sovereign decision
founded upon its own procedural rule.” Mitchell, 209 F.3d at
869; see also Amos v. Scott, 61 F.3d 333,342 (Sth Cir. 1995)
(stating that “an occasional act of grace by a state court in
excusing or disregarding a state procedural rule does not
render the rule inadequate. . .”’).
Petitioner Davis next argues that res judicata should not
foreclose federal review in that “Ohio’s post-conviction bar
of res judicata does not meet the due process requirements
because it is designed to create procedural defaults for the
sake of judicial convenience.” Yet Davis does not offer any
coherent argument as to how Ohio's use of res judicata runs
afoul of due process.
Accordingly, the Court finds that res judicata is an
‘adequate and independent’ state ground on which the state
can rely to foreclose review of a federal constitutional
claim.” Maupin, 785 F.2d at 138. Claims 4 (PP 18, 27, and
29), 5, 8, 12 (P85), 18, and 19 are thus barred. n7
n7 Like Petitioner Davis’s other defaulted claims, these
claims lack merit. In Claims 4 (PP 18, 27, and 29), 5, 8, and
12 (P 85), Davis argues that his counsel provided ineffective
representation. But Davis does not show any actual prejudice.
The overwhelming evidence of Davis’s guilt strongly
suggests any error on the part of his counsel did not render
the jury’s guilty verdict unreliable. Likewise, the Court
remains unconvinced that Davis’s counsel made errors so
serious during the mitigation phase so as to render the jury’s
death penalty recommendation invalid. See Strickland v.
Washington, 466 U.S. 668, 685, 80 L. Ed. 2d 674, 104 S. Ct.
2052 (1984).
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In Claim 18, Davis says the prosecution failed to provide
discovery regarding a log book from the Blue Cross building
located near the scene of the kidnapping. Davis insists this
log book contains a description of another suspect. The
prosecution’s failure to produce the log book, according to
Davis, violates the Supreme Court's holding in Brady v.
Maryland, where the Court held that the prosecution must
produce evidence that is favorable to the defendant when
such evidence is material to guilt or punishment. 373 U.S.
83, 83 §. Ct. 1194, 10 L. Ed. 2d 215 (1963). Yet Davis has
not offered any evidence showing a “reasonable probability”
that the outcome of his trial would have been different had
the prosecution produced the log book. United States v.
Bagley, 473 U.S. 667, 678, 87 L. Ed. 2d 481, 105 S. Ct. 3375
(1985). Absent such evidence, Davis cannot establish a
Brady violation.
In Claim 19, Davis contends that death by electrocution
constitutes cruel and unusual punishment. But neither the
Supreme Court nor the Sixth Circuit have ever held as much.
In the absence of any supporting authority, Davis's argument
fails.
V. Evidentiary Hearing
Petitioner Davis asks this Court to delay ruling on his
petition in order to “conduct a hearing at which proof may be
offered concerning the allegations of this petition....”
However, Davis offers no argument in support of his request.
And the Court’s independent review reveals no basis for
conducting an evidentiary hearing.
To show entitlement to an evidentiary hearing, a
petitioner must overcome two obstacles. First, if the
petitioner failed to develop the factual basis of his claim in
state court, a federal habeas court is generally prohibited
from conducting an evidentiary hearing. n8 See 28 U.S.C.
47a
§ 2254(e)(2). Second, even if he did not fail to develop the
factual basis of his claim, a petitioner must still show that
there is a factual dispute that “if resolved in the petitioner's
favor, would entitle [the petitioner] to relief and [that] the
state has not afforded the petitioner a full and fair hearing.”
Murphy v. Johnson, 205 F.3d 809, 815 (Sth Cir. 2000); see
also Townsend v. Sain, 372 U.S. 293, 313,9 L. Ed. 2d 770,
83 S. Ct. 745 (1963) (“Where the facts are in dispute, the
federal court in habeas corpus must hold an evidentiary
hearing if the habeas applicant did not receive a full and fair
evidentiary hearing in state court....”), overruled on other
grounds by Keeney v. Tamayo-Reyes, 504 U.S. 1, 118 L. Ed.
2d 318, 112 S. Ct. 1715 (1992).
n8 When a petitioner has failed to develop the factual
basis of his claim, the AEDPA allows a court to conduct an
evidentiary hearing only if the petitioner shows that:
(A) the claim relies on—
(1) a new rule of constitutional law, made retroactive to cases
on collateral review by the Supreme Court, that was
previously unavailable; or
(ii) a factual predicate that could not have been previously
discovered through the exercise of due diligence; and
(B) the facts underlying the claim would be sufficient to
establish by clear and convincing evidence that but for
constitutional error, no reasonable factfinder would have
found the applicant guilty of the underlying offense.
28 U.S.C. § 2254(e)(2).
Here, the Court finds no material factual dispute
requiring an evidentiary hearing. The record before the Court
provides a complete basis upon which to consider Petitioner
48a
Davis's grounds for relief. Thus, even assuming Davis did not
fail to develop the factual basis of his claim and that the state
courts denied Davis a full and fair hearing, an evidentiary
hearing is not appropriate.
VI. Standard of Review
The Antiterrorism and Effective Death Penalty Act of
1996 (“AEDPA”) sets forth the standard with which this
Court reviews Petitioner Davis’s petition. The AEDPA
provides in pertinent part:
(d) An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of clearly established Federal law,
as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented
in the State court proceeding.
28 U.S.C. $ 2254(d).
Here, Petitioner Davis does not challenge the state court's
factual findings. Thus, the standard of review described in
§ 2254(d)(1), rather than § 2254(d)(2), applies to his petition.
The United States Supreme Court recently examined the
applicability of § 2254(d)(1). In Williams v. Taylor, the Court
identified the different circumstances in which a federal
habeas court must apply either the “contrary to” or the
“unreasonable application of” clause in § 2254(d)(1):
49a
Under the ‘contrary to’ clause, a federal habeas court may
grant the writ if the state court arrives at a conclusion
opposite to that reached by this Court on a question of law or
if the state court decides a case differently than this Court has
on a set of materially indistinguishable facts. Under the
‘unreasonable application’ clause, a federal habeas court may
grant the writ if the state court identifies the correct
governing legal principle from this Court’s decisions but
unreasonably applies that principle to the facts of the
prisoner's case.
529 U.S. 362, 120 S. Ct. 1495, 1523, 146 L. Ed. 2d 389
(2000).
Here, Petitioner Davis does not challenge the state court’s
articulation of the applicable legal principles. Instead, Davis
seeks review of the state court’s application of those
principles to the facts of his case. Thus, the Court will review
Davis's petition under § 2254(d)(1)’s “unreasonable
application” clause.
Until Williams, federal courts generally applied a
subjective standard of reasonableness under _ the
“unreasonable application” clause. For instance, the Sixth
Circuit has held that a writ of habeas corpus “will issue if the
unreasonableness of the state court’s application of clearly-
established precedent is not debatable among reasonable
jurists.” Tucker v. Prelesnik, 181 F.3d 747, 753 (6th Cir.
1999).
However, in Williams, the Supreme Court rejected this
approach. Rather than declare an application of law
reasonable simply because one jurist has employed a similar
application, the Court endorsed an objective standard for
assessing a state court’s application of controlling precedent.
See Williams, 120 S. Ct. at 1521.
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Thus, the Court’s review of Petitioner Matthews’s
petition is not de novo. Rather, the Court will determine
whether the state court's application of law is objectively
reasonable.
VII. Grounds for Relief
The Court now reviews Petitioner Davis’s grounds for
relief. As explained below, the Court finds that Davis fails to
show the state courts’ application of controlling law is in any
way unreasonable.
A. Claim |
Petitioner Davis first contends that the trial court wrongly
refused to move his trial to a venue not “permeated” with
pretrial publicity. Davis insists that excessive _ pretrial
publicity deprived him of his constitutional right to a fair
trial.
Under certain circumstances, pretrial publicity can
deprive a defendant of his right to a fair trial. Specifically,
the United States Supreme Court has held that pretrial
publicity undermines the fairness of the judicial process
when it is either “inherently prejudicial” or when it results in
“actual prejudice.”
Publicity surrounding a judicial proceeding is inherently
prejudicial when it fosters a circus-like atmosphere in the
courtroom, draining the proceeding of the “solemnity and
sobriety to which a defendant is entitled in a system that
subscribes to any notion of fairness and rejects the verdict of
a mob.” Murphy v. Florida, 421 U.S. 794, 799, 44 L. Ed. 2d
589, 95 §. Ct. 2031 (1975). For example, in Rideau v.
Louisiana, the Supreme Court found such inherent prejudice
when a local television station aired a twenty-minute
videotaped interrogation during which the defendant
Sila
confessed to the crime for which he was eventually
convicted. 373 U.S. 723, 83 S. Ct. 1417, 10 L. Ed. 2d 663
(1963).
Even if not so egregious as to create inherent prejudice,
pretrial publicity may nevertheless give rise to an inference
of actual prejudice. The nature and extent of pretrial publicity
may have such a substantial effect on prospective jurors, as
evidenced by the voir dire testimony, that a “fair trial [was]
impossible.” Murphy, 421 U.S. at 798. In Irvin v. Dowd, the
United Supreme Court found extensive coverage of a
defendant’s past convictions and his offer to plead guilty to
avoid a death sentence prevented a fair trial when nearly ail
of the prospective jurors reported some belief in_ the
defendant’s guilt. 366 U.S. 717, 727, 81 S. Ct. 1639, 6 L. Ed.
2d 751 (1961).
Here, Petitioner Davis insists that pretrial publicity
rendered his trial unfair. Davis says that near constant media
coverage of the murder of Ar.y Perkins, whose husband was
a popular radio personality in Cleveland, tainted the venue in
which he was tried and convicted. This coverage, according
to Davis, included “informaticn about [his] prior criminal
record, other attempted rapes in downtown Cleveland and
genera! information about the lack of safety in the downtown
area.” Davis says the media coverage was so pervasive that
only seven of the seventy potential jurors reported no
previous knowledge regarding the case.
The Ohio Supreme Court considered and _ rejected
Petitioner Davis’s argument. The court found no merit in
Davis's claim of inherent prejudice. Although pretrial
publicity included coverage of Davis’s criminal record, the
court observed that this alone would not give rise to a
presumption of prejudice. And as for actual prejudice, the
ser ak ne
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court emphasized the trial court’s careful screening of
potential jurors and exclusion of those jurors who had formed
fixed opinions as to Davis’s guilt.
The Court finds that the Ohio Supreme Court reasonably
applied controlling precedent. The court correctly noted that
publication of a defendant’s prior convictions will not, in and
of itself, create inherent prejudice. And other grounds for
finding inherent prejudice are lacking. Davis’s trial was in no
way the carnival-like exercise described in Rideau.
Nor is there any support for a finding of actual prejudice.
The trial court took various measures to ensure that pretrial
publicity would not prejudice Petitioner Davis’s trial. For
example, the court granted a continuance to allow the pretrial
publicity to wane. Thus, while the majority of the publicity
occurred in November and December 1991, the trial did not
take place until May 1992.
Further, the trial court made reasonable efforts to ensure
the jurors selected to hear Davis’s case were not biased
against him. The trial court individually questioned many
jurors as to the impact of the pretrial publicity. The broad
majority of prospective jurors had only vague recollection of
reports of the killing. The court excused the few jurors who
had formed fixed opinions as to Davis’s guilt. Also, the court
appointed a jury selection specialist to assist Davis in
choosing a favorable jury.
In his petition for habeas corpus relief, Petitioner Davis
shows no evidence that members of the venire had
knowledge or beliefs that prevented them from fairly
deciding his case upon the evidence presented at the trial. See
Dobbert v. Florida, 432 U.S. 282, 303, 53 L. Ed. 2d 344, 97
S. Ct. 2290 (1977) (rejecting claim of prejudice where
petitioner failed to show “constitutional unfairness as to the
method of jury selection or as to the character of the jurors
53a
actually selected”). Absent such a showing, the Constitution
“presupposes that a jury selected from a fair cross section of
the community is impartial, regardless of the mix of
individual viewpoints actually represented on the jury, so
long as the jurors can conscientiously and properly carry out
their sworn duty to apply the law to the facts of the particular
case.” Lockhart v. McCree, 476 U.S. 162, 184, 90 L. Ed. 2d
137, 106 §. Ct. 1758 (1986); Ross v. Oklahoma, 487 U.S. 81,
86, 101 L. Ed. 2d 80, 108 S. Ct. 2273 (1988).
Petitioner Davis can show only that some of the
veniremen were familiar with the case. But “qualified jurors
need not... be totally ignorant of the facts and issues
involved.” Dobbert, 432 U.S. at 302. Davis presents no
evidence suggesting that any of the jurors ultimately seated
had any opinion as to his guilt. Indeed, Davis never
challenged any of these jurors for cause, and used only half
of his peremptory challenges.
Accordingly, the Court finds no merit in Claim 1.
B. Claim 3
Petitioner Davis next says the jury did not have sufficient
evidence to find him guilty of the aggravated robbery
specification. He thus says his conviction violated his rights
under the Fifth, Eighth, and Fourteenth Amendments of the
United States Constitution.
A federal court can overturn a state jury decision only in
certain circumstances. The United States Court of Appeals
for the Sixth Circuit has held that a verdict must stand if
“after viewing the evidence (and the inferences to be drawn
therefrom) in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” Walker v. Russell,
57 F.3d 472, 475 (6th Cir. 1995). Thus, the federal court’s
54a
job in reviewing a petition for habeas corpus is not to re-
evaluate the evidence and reach its own conclusion, but
instead to review the record and determine whether a
reasonable jury could find all of the elements necessary to
prove the crime beyond a reasonable doubt. See Jackson v.
Virginia, 443 U.S. 307, 318-19, 61 L. Ed. 2d 560, 99 S. Ct.
2781 (1979).
Petitioner Davis says that no reasonable juror could reach
the conclusion that he robbed Amy Perkins during her
kidnapping and murder. Davis says that no reasonable jury
would credit David Perkins’s testimony that his wife
“habitually wore” the missing ring and watch. Also, Davis
points out that no one directly testified that Perkins wore the
ring and watch on the day of her death, only that Perkins’s
body was not wearing the ring and the watch and they were
never found in her house. Consequently, Davis says that the
lack of direct evidence proving that Perkins wore the missing
ring and watch is enough to remove the aggravated robbery
specification from his conviction.
The Ohio Supreme Court rejected Davis’s argument and
upheld the jury’s verdict. The court held that the jury made
reasonable inferences from the evidence presented. From the
testimony at trial, the jury inferred that Perkins was wearing
the missing ring and watch at the time of her murder.
Presumptively, the jury made this finding in reliance upon
Amy Perkins’s husband’s testimony that she always wore
these items. Combined with the fact that the ring and watch
were never recovered, and the testimony that Perkins’s car
was “rifled through,” the court determined that the jury
reached a reasonable conclusion that Davis stole the items.
Although the evidence was circumstantial, the court noted
that circumstantial evidence is given the same weight as
direct evidence.
55a
This Court finds the Ohio Supreme Court’s ruling
reasonable. The prosecution presented evidence that (1)
Perkins habitually wore the ring and watch, (2) the
belongings in Perkins’s car were rifled through, (3) Perkins
was not wearing any jewelry when found, and (4) the items
are still missing. This convincing circumstantial evidence
allowed a reasonable jury to infer that Davis stole the items.
See U.S. v. Farley, 2 F.3d 645, 650 (6th Cir. 1993) (stating
that “circumstantial evidence is entitled to the same weight as
direct evidence in this calculus [of determining sufficiency’”’).
Hence, the Court rejects Claim 3.
C. Claims 6, 7, 9, 10
Petitioner Davis raises several claims regarding alleged
deficiencies with Ohio’s post-conviction — procedures.
Specifically, Davis says his constitutional rights were
violated during the state post-conviction process when the
trial court prevented Davis from interviewing jurors, refused
an evidentiary hearing, and administered what Davis claims
was a “meaningless” post-conviction procedure.
The Sixth Circuit has ruled that a petitioner may not seek
habeas relief based on alleged deficiencies in a state’s post-
conviction procedures. See Kirby v. Dutton, 794 F.2d 245
(6th Cir. 1986). Rather, a petitioner is entitled to habeas
relief only upon showing that an error of federal law makes
his conviction and resulting incarceration illegitimate. See id.
at 247 (observing that a petition for a writ of habeas corpus is
“not the proper means by which prisoners should challenge
errors or deficiencies in state post-conviction proceedings... .
because the claims address collateral matters and not the
underlying state conviction giving rise to the prisoner's
incarceration’).
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In Kirby, the prisoner filed a petition for habeas corpus
on the grounds that he had inadequate assistance of counsel
at his post-conviction hearing. See id. at 246. The Sixth
Circuit ultimately denied the petitioner’s appeal because his
claim related to his state post-conviction proceeding rather
than his actual incarceration. See id. at 247. The court
emphasized that an error associated with a state post-
conviction proceeding is not cognizable on habeas review:
Even where there may be some error in state post-
conviction proceedings, this would not entitle appellant to
federal habeas corpus relief since appellant’s claim here
represents an attack on a_ proceeding collateral to detention
of appellant and not on the detention itself.
Id. (quoting Williams v. Missouri, 640 F.2d 140 (8th Cir.
1981)).
The claims that Petitioner Davis makes in Claims 6, 7, 9,
and 10 all relate to alleged constitutional errors during his
state post-conviction proceeding. As such, these claims are
not cognizable on federal habeas review. Accordingly, the
Court rejects these four claims for relief.
D. Claim 11
Petitioner Davis contends that the trial court deprived him
of a fair trial by improperly instructing the jury regarding the
appropriate aggravating factors to consider in deciding
whether to recommend the death penalty. In particular, Davis
says the trial court erred in referring to the specifications in
the indictment as “aggravating circumstances.”
The Ohio Supreme Court rejected Petitioner Davis’s
argument without opinion. Likewise, on direct appeal, the
Cuyahoga County Court of Appeals found that any error in
S7a
the instructions did not actually prejudice Davis. n9 The
Court finds nothing unreasonable in the state courts’ rejection
of Davis’s claim.
n9 See Yist v. Nunnemaker, 501 U.S. 797, 803, 115 L. Ed.
2d 706, 111 S. Ct. 2590 (1991) (stating that “where there has
been one reasoned state judgment rejecting a federal claim,
later unexplained orders upholding that judgment or rejecting
the same claim rest upon that ground”).
Ohio Revised Code § 2929.04(A) sets forth various
aggravating circumstances a jury must consider in deciding
whether to recommend the death penalty. Some of these
aggravating circumstances were included as specifications in
Petitioner Davis’s indictment. However, the firearm
specification in Davis’s indictment is not listed as an
aggravating factor in Ohio Revised Code § 2929.04(A).
Thus, the trial court erred when it referred to the
specifications in the indictment as “aggravating
circumstances.” Davis says this error resulted in actual
prejudice. According to Davis, the trial court’s instruction led
the jury to consider a nonstatutory aggravating factor in
deciding whether to recommend the death penalty.
As an initial matter, Davis fails to show how the trial
court's error in instructing the jurors on state law gives rise to
a federal constitutional violation. The simple fact that the
instructions may have led the jurors to consider nonstatutory
aggravating circumstances does not establish such a
violation. In Zant v. Stephens, the United States Supreme
Court found that a jury may _ consider nonstatuiory
aggravating factors in deciding which defendants receive the
death penalty:
FS aM res MARES BIO a ED See Sema RCE RC ORR TE
toh om
58a
Our cases indicate, then, that statutory aggravating
circumstances play a constitutionally necessary function at
the stage of legislative definition: they circumscribe the class
of persons eligible for the death penalty. But the Constitution
does not require the jury to ignore other possible aggravating
factors in the process of selecting, from among that class,
those defendants who will actually be sentenced to death.
What is important at the selection stage is an individualized
determination on the basis of the character of the individual
and the circumstances of the crime.
462 U.S. 862, 878, 103 S. Ct. 2733, 77 L. Ed. 2d 735.
Even if Petitioner Davis’s argument raised a federal
constitutional issue, the Court finds reasonable the Ohio
Supreme Court’s conclusion that the trial court’s error did
not result in any prejudice to Davis. Prior to the penalty
phase, the trial court properly instructed the jury as to
aggravating circumstances the jury should consider in
deciding whether to recommend that Petitioner Davis receive
the death penalty. These instructions remedied any earlier
misstatement by the trial court.
For this reason, the Court rejects Claim 11.
E. Claim 12 (P 88)
Petitioner Davis says he was denied his constitutional
right to a fair trial because of certain inappropriate comments
made by the prosecution during closing arguments. In
particular, Davis says the prosecution made inflammatory
comments regarding the gruesome nature of Amy Perkins’s
murder.
A prosecutor’s improper comments can deprive a
defendant of a fair trial. See Wainwright, 477 U.S. at 181.
But such a deprivation does not occur simply because a
59a
- prosecutor’s comments are “undesirable or even universally
condemned.” /d. (internal quotations omitted). Instead, the
relevant inquiry “is whether the prosecutor’s comments ‘so
infected the trial with unfairness as to make the resulting
conviction a denial of due process.’” /d. (quoting Donnelly v.
DeChristoforo, 416 U.S. 637, 642,40 L. Ed. 2d 431,94 S. Ct.
1868 (1974)).
The Ohio Supreme Court found no merit in Petitioner
Davis’s argument regarding the prosecution’s statements
concerning Amy Perkins’s death. The court acknowledged
that the prosecution ought not have made comments
emphasizing the gruesome nature of the crime. However, the
court concluded that, in light of the evidence supporting
Davis’s guilt, the prosecution’s statements did not have a
prejudicial effect. |
The Court finds this conclusion reasonable. First, the
prosecution's statements were not necessarily inflammatory.
The prosecution noted that Amy Perkins’s body had been
dumped naked on the street. This reference supported the
prosecution’s claim that Petitioner Davis had attempted to
rape Perkins. Also, the prosecution’s comment regarding
Perkins’s head wound supported the theory that Davis shot
Perkins at close range.
Second, the prosecution’s comments did not so infect the
trial with unfairness so as to deprive Petitioner Davis of due
process. The jury’s verdict finds substantial support in the
evidentiary record. The Court finds no compelling reason to ’
set this verdict aside.
The Court therefore rejects Claim 12 (P 88).
ee
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F. Claim 13
Petitioner Davis argues that Ohio appellate courts have
failed to comply with their statutory duty to fully review the
proportionality of death sentences, thereby depriving Davis
of his rights under the Fifth, Eighth, and Fourteenth
Amendments of the United States Constitution. Most
notably, Davis says reviewing courts have failed to collect
data regarding cases where capital defendants receive a life
sentence.
The Ohio Supreme Court rejected this claim without
opinion. The Cuyahoga County Court of Appeals also
rejected this claim on direct appeal, noting that the Ohio
Supreme Court has held that a proportionality review need
only involve prior cases where the death penalty has been
imposed.
The Court finds the state courts’ rejection of Petitioner
Davis’s proportionality review claim reasonable. Davis is
entitled to habeas relief only if he shows a violation of the
Constitution or federal law. See Estelle, 502 U.S. at 67.
However, the United States Supreme Court has held that a
proportionality review of death sentences is not
constitutionally required. See Pulley v. Harris, 465 U.S. 37,
50-51, 79 L. Ed. 2d 29, 104 S. Ct. 871 (1984). Therefore a
petitioner is not entitled to habeas relief simply because of
some inadequacy in a state-mandated proportionality review.
As the Supreme Court made clear in Harris, a claim of
inadequate proportionality review, “even if accurate, would
not warrant issuing a writ of habeas corpus. Rather it would
appear to be a matter that the state courts should consider, if
they are so inclined, free of the constraints of the federal
writ.” Id. at 42.
The Court thus rejects Claim 13.
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G. Claim 14
Petitioner Davis claims that Ohio’s capital sentencing
scheme violates the Sixth, Eighth, and Fourteenth
Amendments of the United States Constitution. Davis raises
several arguments in support of his claim.
The Ohio Supreme Court rejected Petitioner Davis's
arguments without opinion. On direct appeal, the Cuyahoga
County Court of Appeals relied upon Ohio Supreme Court
precedent, and found these argument lacking in merit.
The state courts reasonably rejected Petitioner Davis’s
constitutional claim. Eschewing any citation te authority,
Davis presents a variety of conclusory arguments concerning
the constitutional infirmity of Ohic’s capital sentencing
scheme. That Davis’s allegations lack both specificity and
supporting authority is no surprise; federal courts have
consistently rejected Davis’s constitutional arguments.
For example, Petitioner Davis says Ohio’s sentencing
scheme unconstitutionally allows the execution of a
defendant who lacked a specific mtent to kill. However, the
United States Supreme Court has found that the Constitution
does not prevent the imposition of the death penalty where a
defendant lacked an intent to kill. See Tison v. Arizona, 481
U.S. 137, 157, 95 L. Ed. 2d 127, 107 S. Ct. 1676 (1987).
Additionally, Petitioner Davis says Ohio’s sentencing
system unconstitutionally reduces the weight of any
mitigating evidence by requiring jurors “to not consider
sympathy and mercy.” Yet the United States Supreme Court
has already rejected this argument. In California v. Brown,
the Court held that the trial court’s admonition that jurors
should not be swayed by sympathy did not interfere with the
jury’s consideration of mitigating evidence. 479 U.S. 538,
541, 107 S. Ct. 837, 93 L. Ed. 2d 934 (1987).
62a
Petitioner Davis also says Ohio’s capital sentencing
scheme violates the Constitution by creating a mandatory
deat’ penalty. But Ohio law does not provide for the
automatic imposition of the death penalty for persons
convicted of a particular crime. Instead, Ohio’s sentencing
scheme merely provides for the imposition of the death
penalty when the aggravating circumstances of a particular
crime outweigh any mitigating factors. Such an approach
does not run afoul of the Constitution. Cf. Woodson v. North
Carolina, 428 U.S. 280, 301, 49 L. Ed. 2d 944, 96 S. Ct. 2978
(1976) (finding unconstitutional automatic imposition of
death penalty for all defendants convicted of first-degree
murder).
Petitioner Davis’s remaining arguments are similarly
lacking in merit. nl0 Finding no constitutional defect in
Ohio’s capital sentencing scheme, the Court rejects Claim 14.
nlQ These remaining arguments’ warrant limited
discussion. First, Petitioner Davis says Ohio’s sentencing
system gives prosecutors too much discretion in making
charging decisions. But Davis does not point to any
particular defect in Ohio's system. The United States
Supreme Court has made clear that a prosecutor’s discretion
in charging a defendant with a capital crime does not violate
the Constitution. See Gregg v. Georgia, 428 U.S. 153,199,
49 L. Ed. 2d 859, 96 S. Ct. 2909 (1976). And the Sixth
Circuit has likewise explained that prosecutorial discretion in
making charging decisions is an inherent part of the criminal
justice system. See United States v. Talbot, 825 F.2d 991,
999 (6th Cir. 1987).
Next, Petitioner Davis says Ohio unconstitutionally
allows the same jury and same counsel to participate in both
the guilt and penalty phases of a capital trial. Davis cites to
no authority that would suggest this practice in any way
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violates the Constitution. Nor can the Court discern any
constitutional infirmity in allowing a single jury and the same
counsel to complete an entire capital trial.
Petitioner Davis also insists that the Ohio’s sentencing
system provides insufficient guidance for the jury during its
penalty phase recommendations. Yet Ohio Revised Code
§ 2929.04 sets forth, in considerable detail, the manner in
which the jury should consider whether to recommend the
death penalty. Davis offers no convincing argument as to
how this statutory framework provides inadequate guidance.
Further, Petitioner Davis complains that Ohio does not
provide a “mercy option” in capital cases. Davis offers no
authority or argument suggesting that such an option is
constitutionally required.
According to Petitioner Davis, Ohio’s failure to ensure
that the sentencer concludes the death penalty is the “only
appropriate penalty” violates the Constitution. Yet, again,
Davis provides no authority in support of his argument.
Petitioner Davis next contends that Ohio does not
adequately narrow the category of defendants eligible to
receive the death penalty. In particular, Davis argues that
Ohio unconstitutionally allows an aggravating circumstance
to repeat an element of the underlying offense. However, the
United States Supreme Court has held that-an element of an
underlying offense may also constitute an aggravating
circumstance for purposes of deciding whether to impose the
death penalty. See Lowenfield v. Phelps, 484 U.S. 231, 246, —
98 L. Ed. 2d 568, 108 S. Ct. 546 (1988).
Also, Petitioner Davis argues that Ohio unconstitutionally
treats felony murder as a greater crime than premeditated
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murder. Butthe Constitution does not limit the death penalty
to those convicted of premeditated murder. See Tison, 48/
U.S. at 157.
And finally, Petitioner Davis says Ohio’s capital
sentencing scheme unconstitutionally prevents a sentencer
from considering all relevant mitigating evidence. Ohio’s
system does no such thing. Ohio Revised Code
§ 2929.04(B)(7) provides that the jury shall consider “any...
factors that are relevant to the issue of whether the offender
should be sentenced to death.”
H. Claim 15
Petitioner Davis contends that the trial court improperly
instructed the jury in violation of his rights under the Fifth,
Eighth, and Fourteenth Amendments of the United States
Constitution. Specifically, Davis insists that the trial court’s
penalty phase instructions were erroneous and thus rendered
the jury’s death penalty recommendation unreliable.
First, Davis says the trial court gave the jury an “acquittal
first” instruction. In this argument, Davis claims the trial
court informed the jury that it could consider other
sentencing options only after first unanimously deciding
against recommending the death penalty. This instruction,
according to Davis, failed to notify each juror of his or her
right to unilaterally prevent a death penalty recommendation.
The Ohio Supreme Court rejected this argument. The
court reasoned that the trial court’s instructions, when read as
a whole, adequately informed the jury of the proper manner
to deliberate and choose a penalty recommendation.
The Court finds the Ohio Supreme Court’s analysis
reasonable. The trial court’s instructions, when read in their
entirety, made clear that any single juror could prevent a
65a
death penalty recommendation. Specifically, the court
informed the jury that all twelve jurors must agree that the
aggravating circumstances outweigh the mitigating
circumstances before recommending that Petitioner Davis get
the death penalty. This instruction, when coupled with the
court's admonition that no juror should surrender her
individual conscience and good judgment during
deliberations, ensured that the jury understood the proper
manner of reaching its penalty recommendation.
Second, Davis says the trial court erroneously used the
statutory definition of “reasonable doubt” during its penalty
phase jury instructions. Employing this definition, the trial
court informed the jury that reasonable doubt is present when
you “cannot say you are firmly convinced of the truth of the
charge.” Davis says the use of the word “charge” misled the
jury into believing they could recommend the death penalty
if they were convinced beyond a reasonable doubt that Davis
committed the crime charged, without regard to the weighing
of aggravating and mitigating factors.
The Ohio Supreme Court rejected this argument without
opinion. The Cuyahoga County Court of Appeals also
rejected this argument on direct appeal. The court refused to
focus solely on the trial court’s use of the word “charge,” but
rather construed the instructions as a whole. When so
construed, the instructions, the court held, informed jurors
that they must be firmly corvinced that the aggravating
circumstances outweigh any mitigating circumstances before
recommending the death penalty. —
This reasoning persuades. The trial court gave the jury
extensive instructions regarding the weighing of relevant
factors in deciding whether to recommend the death penalty.
Davis’s suggestion that the use of the word “charge”
somehow led jurors to ignore these instructions is not
credible.
———————eEeEEEEE———————————
66a
Accordingly, the Court rejects Claim 15.
I. Claim 4 PP 30-34)
In this claim, Petitioner Davis says that his counsel
ineffectively represented him at trial. Davis insists his
counsel's deficient performance deprived him of his Sixth
Amendment right to the effective assistance of counsel.
The Sixth Amendment provides that “in all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.” This provision
recognizes the integral role the effective assistance of counsel
plays in ensuring the adversarial system produces just results.
See Strickland, 466 U.S. at 685.
A petitioner making an ineffective assistance of counsel
claim must establish two elements. First, the petitioner must
show that his counsel’s performance was deficient. A
constitutionally deficient performance occurs when counsel
“made errors so serious that counsel was not functioning as
the ‘counsel’ guaranteed by the Sixth Amendment.” /d.
Second, the petitioner must show that his counsel’s deficient
performance resulted in actual prejudice. This type of
prejudice arises when counsel’s errors were “so serious as to
deprive [Davis] of a fair trial, a trial whose result is reliable.”
Id.
The Ohio Supreme Court found that Davis did not make
this showing. The court reasoned that, in light of the
overwhelming evidence of Davis’s guilt, any errors Davis’s
counsel may have committed did not actually prejudiced
Davis’s defense.
OEE ONE RE rR come
LL ———______
67a
The Court finds the Ohio Supreme Court’s reasoning
persuasive. Petitioner Davis-does not show that his counsel’s
performance rendered the jury’s verdict unreliable.
Petitioner Davis first argues that his counsel performed
deficiently by failing to preserve the arguments Davis makes
in Claim 11, Claim 12 (P 88), Claim 16, and Claim 17. The
Court has already rejected these arguments. For the reasons
earlier given, Davis's attorney’s failure to preserve these
arguments did not result in any actual prejudice.
Petitioner Davis also argues that his attorney should have
objected to the prosecution’s comments regarding his
unsworn statement. During closing argument, the prosecution
noted that Davis’s unsworn statement was not subject to
cross-examination. Davis insists that this statement was-
improper. -
Yet Petitioner Davis does not point to any authority that
limits a prosecutor’s comments regarding an unsworn
statement’s lack of cross-examination. Counsel’s failure to
object to a permissible statement does not constitute deficient
representation.
Accordingly, the Court rejects Claim 4 (PP 30-34).
J. Claim 16
Petitioner Davis contends that the trial court violated his
rights under the Fifth, Sixth, Eighth, and Fourteenth
Amendments of the United States Constitution by failing to
properly weigh the aggravating circumstances against the
relevant mitigating circumstances.
The Ohio Supreme Court rejected this claim. The Court
found that any possible errors in the trial court’s
consideration of the relevant aggravating and mitigating
PLaS te See
Ba teal act
68a
circumstances were remedied by its independent review of
Davis’s death sentence. Finding little in the way of
mitigating evidence, the court found Davis’s death sentence
appropriate.
_ The Court finds the Ohio Supreme Court’s analysis
reasonable. The United States Constitution does not require a
court to weigh aggravating and mitigating circumstances
prior to imposing the death penalty. Of course, the
Constitution does prohibit irrational or arbitrary death
sentences. But the Ohio Supreme Court’s thoughtful review
of the penalty phase evidence ensured that the trial court did
not arbitrarily accept the jury’s recommendation _ that
Petitioner Davis receive the death penalty.
The Court therefore rejects Claim 16.
K. Claim 17
Finally, Petitioner Davis argues that the trial court
allowed the prosecution to readmit exhibits used during the
guilt phase of his trial during the penalty phase. Davis says
this deprived-him of his rights under the Fifth; Eighth, and
Fourteenth Amendments of the United States Constitution.
The admission of these exhibits, Davis says, led the jury to
consider non-statutory aggravating factors during the penalty
phase deliberations.
The Ohio Supreme Court denied this claim without
opinion. In reviewing Petitioner Davis’s direct appeal, the
Cuyahoga County Court of Appeals also rejected this claim.
The court based its decision on the Ohio Supreme Court’s
opinion in State v. Woodard, 68 Ohio St. 3d 70, 78, 623
N.E.2d 75, 81 (1993). In that case, the court held that the
prosecution could introduce any evidence during the penalty
69a
phase “that is relevant to the aggravating circumstances the
offender was found guilty of committing.’” /d. (quoting
OHIO REV. CODE § 2929.03(D)(1)).
The state courts’ rejection of Petitioner Davis’s claim in
no way reflects an unreasonable application of controlling
federal law. As the Court explained in discussing Claim 11,
the United States Supreme Court has never construed the
Constitution as_ prohibiting jurors from _ considering
aggravating factors other than those set forth in a state
statute. See Zant, 462 U.S. at 878. Thus, even assuming the
challenged exhibits led the jury to consider nonstatutory
aggravating factors, Davis fails to show any constitutional
violation.
For this reason, the Court rejects Claim 17.
VIII. Conclusion
The Court has considered each of the arguments
Petitioner Davis offers in support of his petition for a writ of
habeas corpus. For the reasons set forth above, the Court
finds that Davis fails to demonstrate his right to a writ of
habeas corpus. Accordingly, the Court denied Davis’s
petition.
IT IS SO ORDERED.
Date: August 23, 2000
James S. Gwin
United States District Judge
— "7
9
:
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ORDER
The Court has entered its opinion in the above-captioned
matter. For the reasons set forth above, the Court finds that
Davis fails to demonstrate his right to a writ of habeas
corpus. Accordingly, the Court denied Davis’s petition [Doc.
26].
This case is hereby terminated pursuant to Fed. R. Civ. P.
58. Further, the Court certifies, pursuant to 28 U.S.C.
§ 1915(a)(3), that an appeal from this order could not be
taken in good faith, and that there is no basis upon which to
issue a certificate of appealability. See 28 U.S.C. § 2253(c);
FED. R. APP. 22(b).
IT IS SO ORDERED.
Date: August 23, 2000
James S. Gwin
United States District Judge
Tia
APPENDIX D
SUPREME COURT OF OHIO
No. 95-1556
The State of Ohio,
Appellee,
Vv.
Davis,
Appellant.
Appeal from the Court of Appeals
for Cuyahoga County, No. 64270.
Submitted: March 20, 1996
Decided: July 24, 1996
PRIOR HISTORY
Early in the morning of November 26, 1991, two days
before Thanksgiving, Amy Perkins, the wife of a popular
Cleveland radio personality, was kidnapped from a
downtown Cleveland parking lot. She was found fatally shot
through the head, thrown out of her car, naked, unconscious,
and left for dead. In connection with this incident, a
Cuyahoga County jury convicted appellant, Wiley Davis, of
aggravated murder and sentenced him to death.
At approximately 8:15 a.m. that day, Mattie Baker saw
Davis pacing back and forth in the parking lot where she
parked her car. Because Baker recognized him as an
Se eae PA eee ee TSE B YC
jie
EES agate teneet
72a
employee of a restaurant where she often lunched, she would
have spoken to Davis, but he disappeared before she exited
her car.
Baker went to pay for her parking space, but had to walk
back to her car because she forgot the number assigned to her
space. While approaching her car, Baker again saw Davis,
who was now sitting on the driver’s side of a gray Toyota
with Texas plates parked in the space next to her car. A white
female with a “terrified look” was sitting in the passenger
seat. Assuming that the woman was in trouble, Baker tried to
summon help, but was unsuccessful. Around 9:00 a.m.,
Gwendolyn Brice looked out the window of her house and
observed a small gray four-door car with Texas plates sitting
at a stop sign, with a white female inside making a motion
with her hands as if “pushing away” something. Brice then
heard a “pop,” saw glass shatter on the passenger side, and
saw the woman’s head drop.
Moments later, Brice’s aunt, Marjorie Johnson, arrived at
the house and parked behind the gray car. Johnson saw a
black male with “‘a full head of hair’ as the driver of the car,
and a white female in the passenger seat with her head
hanging out the window. When the driver looked at his rear-
view mirror and saw Johnson, he “pulled off” at high speed.
The next person to see Davis was Nancy Brown, who
was parked in her car while waiting with her son and his
friends for the school bus to arrive. As she and the children
sat in the car, Brown witnessed a blue or dark gray Toyota
moving very slowly across the intersection. The driver,
whom Brown described as ‘“‘a dark male” with a “Jheri curl”
was leaning over the passenger seat, trying to close the
passenger-side door “as if it was stuck, or jammed.”
73a
After the car passed, the children drew Brown’s attention
to a person lying behind some bushes. Brown immediately
went down the street ‘> investigate. She discovered a nude
white female, uncons »us and “barely living.” The woman
was trying to speak, “but nothing was coming out.” Brown
ran to a nearby house to call 911. When she returned, she
covered the victim with a borrowed blanket and waited with
the victim for the ambulance to arrive. Brown specifically
testified that the victim was wearing no jewelry. The victim
was taken to a hospital, where she died. David Perkins later
identified the victim as his wife, Amy Perkins.
About twenty-five minutes after the shooting, the owner
of a nearby deli noticed a gray Toyota with Texas plates
parked in his lot. When he later went out to look at the car
and saw its broken windshield and blood in the car, he called
the police. When the police arrived, they found a Federal
brand .32 caliber shell casing five to ten feet from the
driver’s side of the car. In the car, police found the victim’s
clothing, a checkbook, some personal items that appeared to
have been rifled through, and fresh blood on the floor.
Davis did not report to work on November 26 and did not
answer the phone when his boss called his home at 8:45 a.m.
Later that morning, however, Davis went to his sister
Annette’s house, which is located approximately three
hundred yards from where the victim’s car was discovered.
When Davis arrived, his sweatsuit had bloodstains on the
right side, which Davis explained by claiming that he
accidentally shot someone in an altercation. Davis asked
Annette’s boyfriend, Alfonso Herring, Jr., to loan him a pair
of pants and keep the gun for him. Herring hid the gun in a
closet and gave Davis a pair of work pants and a sweatshirt.
Davis changed and washed the blood off his sweatsuit, which
he left hanging in the bathroom. Davis left his sister's house
at 9:40 a.m. with his mother.
74a
Later that afternoon, Cleveland police arrested Davis at
his girlfriend’s house. When the officers executed a warrant
to search the house, they found a right shoe with bloodstains
on its right-hand side, above the heel, a box of Federal brand
.32 caliber ammunition and loose bullets of the same type,
but no gun.
After being warned that the police had asked for
Annette’s address, Herring took Davis’s clothes and the gun
from the closet, put them in the trunk of his car, and left.
Despite a request from Davis not to turn over the gun and
clothes to the police, on November 29, upon the advice of an
attorney and his father, Herring turned the items over to
police.
A Cleveland police firearms examiner test-fired the gun
turned in by Herring and after considerable analysis
determined that the casing found in the deli parking lot had
been fired from the gun turned over by Herring. Further, the
county coroner’s office found Group O blood on Davis’s
right shoe and the right sleeve of his sweatsuit. However,
both Davis and Perkins had Group O blood. Yellow stains on
the sweatsuit’s right shoulder and left leg could not be
identified as blood, but a stain on the right leg tested positive
for “human protein.”
Amy’s husband, David, identified the car as Amy’s and
testified that his wife always wore a custom-made
engagement wedding ring and a woman’s Rolex watch. He
further testified that the jewelry has been missing since
Amy’s death.
Davis was ultimately charged on four counts. Counts One
and Two charged aggravated murder under R.C. 2903.01(A)
and (B). Each count carried three felony-murder capital
specifications--kidnapping, aggravated robbery and
rape/attempted rape. Davis was also charged separately with
75a
kidnapping and aggravated robbery. The jury convicted
Davis of al! counts listed above and all specifications thereto
and recommended death sentences on Counts One and Two.
The trial court sentenced Davis to death and ordered him heid
in solitary confinement on the twenty-sixth day of each
month until his execution. The court of appeals affirmed the
convictions and the sentence except for the solitary
confinement provision.
The cause is now before this court upon an appeal as of
right.
DISPOSITION
Judgment affirmed in part and reversed in part.
COUNSEL
Stephanie Tubbs Jones, Cuyahoga County Prosecuting
Attorney, Frank Gasper and Diane Smilanick, Assistant
Prosecuting Attorneys, for appellee. David L. Doughten and
John P. Parker, for appellant.
JUDGES
MOYER, C.J., F.E. SWEENEY, PFEIFER AND
STRATTON, JJ., CONCUR. DOUGLAS AND RESNICK,
JJ., CONCUR IN JUDGMENT ONLY.
oe ana
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OPINION BY: COOK
OPINION
Cook, J. Davis has presented this court with sixteen
propositions of law pertaining to both the guilt and
sentencing phases of his trial. Pursuant to the mandate of
R.C. 2929.05(A), we have considered each of appellant’s
propositions of law and have reviewed the sentence for
appropriateness and proportionality.
We have previously held that R.C. 2929.05 does not
require this court to address and discuss, in opinion form,
each and every proposition of law raised in a capital case.
See, e.g., State v. Allen (1995), 73 Ohio St. 3d 626, 628, 653
N.E.2d 675, 680; State v. Poindexter (1988), 36 Ohio St. 3d
I, 3, 520 N.E.2d 568, 570. Accordingly, we continue to
adhere to our view on this issue and address only those issues
that warrant discussion. For the following reasons, we affirm
the court of appeals’ judgment and uphold Davis’s death
sentence.
I. The Guilt Phase
A. Venue/Pretrial Publicity
The critical issue in Davis’s first proposition of law is
whether the trial court’s refusal to change venue violated
Davis’s fair trial rights. In order to safeguard the fair trial
rights of a defendant, a trial court can change venue “when it
appears that a fair and impartial trial cannot be held” in that
court. Crim.R. 18; R.C. 2901.12(K). In State v. Lundgren
(1995), 73 Ohio St. 3d 474, 479, 653 N.E.2d 304, 313, we
reaffirmed our position that “““{a] change of venue rests
77a
largely in the discretion of the trial court, and *** appellate
courts should not disturb the trial court’s [venue] ruling ***
unless it is clearly shown that the trial court has abused its
discretion.””’” (Citing State v. Maurer [1984], 15 Ohio St. 3d
239, 250, 15 Ohio B. Rep. 379, 388-389, 473 N.E.2d 768,
780, quoting State v. Fairbanks [1972] 32 Ohio St. 2d 34, 37,
61 Ohio Op. 2d 241, 243, 289 N.E.2d 352, 355.)
Davis asserts that constant and excessive prejudicial
media coverage before and during his trial made it
impossible to seat an impartial jury, in spite of the trial
court’s precautions and efforts during voir dire. The majority
of the publicity about this case was disseminated in
November and December 1991. The trial did not take place
until May 1992. Compare State v. Landrum (1990), 53 Ohio
St. 3d 107, 559 N.E.2d 710 (delay of trial to February from
September arraignment found to have helped dissipate any
effects from the pretrial publicity). While newspaper articles-——
did reference Perkins’s murder following a similar incident in
March 1992, two months prior to trial, the articles mentioned
the murder only briefly, and with no details.
Pretrial print and electronic media coverage of the crime,
while significant, did not act to deprive Davis of a fair trial.
In State v. Bayless (1976), 48 Ohio St. 2d 73, 98, 2 Ohio Op.
3d 249, 262, 357 N.E.2d 1035, 1051, we concluded that “a
careful and searching voir dire provides the best test of
whether prejudicial pretrial publicity has prevented obtaining
a fair and impartial jury from the locality.” The transcript of
voir dire indicates that publicit;) in this case, while
significant, was not pervasive. Moreover, the trial court took
substantial measures to ensure that pretrial publicity did not
prejudice Davis’s right to a fair trial.
The trial court individually questioned over sixty
veniremen and all but a few were queried as to the impact of
pretrial publicity, While a sizable majority knew at least
78a
some details of the crime, ten knew nothing about the crime
at all, and another eight had only vague, sketchy knowledge.
The trial court readily excused those in the venire who had
formed fixed opinions or were otherwise unsuitable. As
such, the trial jury was not tainted by excessive exposure to
pretrial publicity. In support of this conclusion, the record
shows that the defense made only four challenges for cause
and waived half of its peremptory challenges. Cf. Murphy v.
Florida (1976), 421 U.S. 794, 803, 95 S. Ct. 2031, 2037, 44
L. Ed. 2d 589, 596; and State v. Thompson (1987), 33 Ohio
St. 3d 1, 5,514 N.E.2d 407, 413.
Davis also maintains that there was “continuous” media
coverage during voir dire. However, the record does not
show the content or amount of such coverage at that time.
Moreover, the court instructed all veniremen at the outset not
to read, watch, or listen to any media accounts of the trial
until being dismissed from the case, and there is no evidence
that anyone disobeyed this warning.
In light of the foregoing, we conclude that the media
coverage surrounding this case was not so pervasive and
sensational as to preclude a fair trial in Cuyahoga County.
In addition to the general publicity issue, Davis also
asserts that publication by the media of his criminal record,
along with information “highly probative of his guilt,” was
enough to create a presumption of prejudice. However, this
claim ignores the mandate of Murphy v. Florida, which held
that pretrial publicity about a defendant’s criminal record
does not create an automatic presumption of prejudice.
Murphy, 421 U.S. at 798, 95 S. Ct. at 2035, 44 L. Ed. 2d at
593-594.
Davis’s first proposition of law is overruled.
79a
B. Pretrial Lineups
Davis’s second proposition of law similarly lacks merit.
He proposes that we rule that the trial court erred in failing to
suppress the identification testimony of three witnesses at
trial because the witnesses’ identifications resulted from
unduly suggestive lineups and were not otherwise reliable.
Mattie Baker, Nancy Brown, and Diane Tomc, who saw
Davis in downtown Cleveland on November 26, around 7:45
in the vicinity of the parking lot where the abduction
occurred, all identified Davis in lineups as the man they saw
on November 26, 1991.
When a witness has been confronted with a suspect
before trial, due process requires a court to suppress an
identification of the suspect if the confrontation was
unnecessarily suggestive of the suspect’s guilt and the
identification was unreliable under all the circumstances.
State v. Waddy (1992), 63 Ohio St. 3d 424, 438, 588 N.E.2d
819, 830-831, citing Manson v. Brathwaite (1977), 432 U.S.
98, 116, 97 S. Ct. 2243, 2254, 53 L. Ed. 2d 140, 155, and
Neil v. Biggers (1972), 409 U.S. 188, 196-198, 93 S. Ct. 375,
381-382, 34 L. Ed. 2d 401, 410-411. However, no due
process violation will be found where an identification does
not stem from an impermissibly suggestive confrontation, but
is instead the result of observations at the time of the crime.
Coleman v. Alabama (1970), 399 U.S. 1, 5-6, 90 S. Ct. 1999,
2001, 26 L. Ed. 2d 387, 394.
The day after the murder occurred, Baker and Brown
picked Davis out of a lineup and identified him as the man
they saw with Amy Perkins. A week later, Tome also picked
Davis out of a lineup as the man she saw near the crime
scene shortly before the kidnapping. Davis claims these
lineups were unnecessarily suggestive, because the other
participants looked so unlike him that he stood out.
80a
On both November 27 and December 3, Davis was lined
up with five other black males. All, including Davis, had
facial hair; however, the complexions of the men varied and
none had a bushy, curly hairstyle like Davis’s.
A defendant in a lineup need not be surrounded by people
nearly identical in appearance. New York v. C hipp (1990), 75
N.Y.2d 327, 336, 553 N.Y.S.2d 72, 77, 552 N.E.2d 608, 613.-
“Even *** significant dissimilarities of appearance or dress”
will not necessarily deny due process. | LaFave & Israel.
Criminal Procedure (1984) 587, Section 7.4.
Davis also argues that he was the only one in either
lineup with jail slippers on his feet and no street clothes
under his jail uniform. However, this did not affect the
integrity of the lineups. Baker, Tomc, and Detective Leo
Allen of the Cleveland Police Department testified that the
participants’ street clothes were not visible under the jail
uniforms. Their footwear may have been visible, but the
witnesses were told to look at faces only. Baker thought all
the participants “had on basically the same slippers,” and
Tome could not recall whether they had any footwear on.
Even if we were to accept Davis’s contention that the
lineups were unnecessarily suggestive, the identifications
were nonetheless reliable under the totality of the
circumstances. In order to determine the reliability of the
identification, we must consider (1) the witness’s opportunity
to view the defendant at the time of the incident, (2) the
witness’s degree of attention, (3) the accuracy of the
witness’s prior description, (4) the witness’s certainty when
identifying the suspect at the time of the confrontation, and
(5) the length of time elapsed between the crime and the
identification. Waddy, 69 Ohio St. 3d at 439, 588 N.E.2d at
531, citing Neil, 409 U.S. at 199-200, 93 S. Ct. at 382, 34 L.
Ed. 2d at 411.
8la
Baker knew Davis, having seen him more than twenty
times before. While she testified at trial that she saw Davis
on television before the lineup, at the voir dire of
identification witnesses she did not so testify, and Davis did
not renew his motion to suppress in light of Baker's trial
testimony. See State v. Campbell (1994), 69 Ohio St. 3d 38,
45, 630 N.E.2d 339, 348. Davis also argues that Detective
Allen tainted Baker’s identification by asking her “to identify
Wiley Davis in a lineup.” However, Baker testified that she
did not recall Allen’s exact words, and even if Allen did use
Wiley Davis’s name, Baker recognized Davis only because
of his employment at the restaurant she frequented and did
not know him by name. Even assuming Allen used Davis’s
name, that would not affect the reliability of Baker’s
identification. -
Brown’s identification is also reliable. She had a_good
opportunity to see the driver as the car rolled past her, close
at hand and “slow enough for me to get a good look *** .”
Her attention was undivided, and her identification was
positive. While Davis claims Brown’s identification was
tainted by news coverage, Brown testified that she did not
see any photos of Davis in the news media before the lineup.
Of the three identifications, Tomc’s is the most
problematic, however, her testimony at trial merely placed
Davis near, but not at, the parking lot about half an hour
before Baker placed him in the car with the victim.
Independent of Tomc’s testimony, the state produced
overwhelming proof that Davis was Perkins’s_ killer.
Accordingly, even assuming error in the trial court’s
admission of Tomc’s identification testimony, we would be
unable to conclude that such error compels a reversal of
Davis’s conviction. State v. Williams (1983), 6 Ohio St. 3d
281, 290, 6 Ohio B. Rep. 345, 353, 452 N.E.2d 1323, 1333,
citing Harrington v. California (1969), 395 U.S. 250, 254, 89
S. Ct. 1726, 1728-1729, 23 L. Ed. 2d 284, 287-288.
82a
Davis’s second proposition of law is overruled.
C. Attempted Rape
We find merit in Davis’s third proposition of law, in
which he contends that the state failed to prove him guilty of
the attempted rape specifications.
Attempted rape requires that the actor (1) intend to
compel submission to sexual conduct by force or threat, and
(2) commit some act that “convincingly demonstrates’” such
intent. See State v. Heinish (1990), 50 Ohio St. 3d 231, 238-
239, 553 N.E.2d 1026, 1035, quoting State v. Woods (1976),
48 Ohio St. 2d 127, 132, 2 Ohio Op. 3d 289, 292, 357 N.E.2d
1059, 1063.
The only evidence supporting the attempted rape
specifications is Gwendolyn Brice’s testimony that just
before Davis shot Perkins, Brice saw Perkins trying to push
Davis away, acting as if “she [Perkins] didn’t want to do
something,” the fact that Perkins was nude when Davis
dumped her from the car, and the forensic evidence showing
that there were possible finger marks on Perkins’s left thigh.
While removing the victim’s clothing can amount to a
“substantial step” toward the commission of rape, State v.
Powell (1990), 49 Ohio St. 3d 255, 261, 552 N.E.2d 191,
198, a defendant cannot be convicted of attempted rape solely
on evidence that he removed the victim’s clothing. There
must be evidence indicating purpose to commit rape instead
of some other sex offense, such as gross sexual imposition,
R.C. 2907.05, which requires only sexual contact. See
Heinish, 50 Ohio St. 3d at 238-239, 553 N.E.2d at 1035. In
Heinish, this court found that a victim’s partial nudity
combined with saliva on the crotch of her blue jeans was
insufficient to show intent to rape. Justice Wright, writing for
a majority of the Heinish court, commented that while “one
83a
may be tempted to speculate and indeed strongly suspect that
crimes other than murder were committed * * *, we would be
remiss in performing our duties of review if we let the
attempted rape conviction stand.” /d. at 239, 553 N.E.2d at
1035.
Brice’s testimony that Perkins seemed to be trying to
push Davis away from her shortly before the shooting
occurred is not strongly corroborative of Davis’s intent to
accomplish sexual conduct. Further, there was no testimony
that imprints suggestive of finger marks left on Perkins’s
thigh were indicative of an attempt to compel sexual conduct
as opposed to sexual contact. Contrast State v. Scudder
(1994), 71 Ohio St. 3d 263, 643 N.E.2d 524 (where, along
with other evidence indicative of the defendant's intent to
commit rape, the court found that bloody hand marks on the
victim’s thighs were in such a pattern so as to indicate that
the killer had tried to force the victim’s legs apart).
Based on the evidence presented, we find there was
insufficient evidence to prove beyond a reasonable doubt that
Davis attempted to rape Perkins. Accordingly, we must
reverse the attempted rape specifications.
Despite our reversal of Davis’s attempted rape
specifications, we are not required to vacate his death
sentence. We must independently reweigh the remaining
aggravating circumstances against the mitigating factors. See
Clemons v. Mississippi (1990), 494 U.S. 738, 110 S. Ct.
1441, 108 L. Ed. 2d 725. Accordingly, we sustain Davis’s
third proposition of law, reverse the court of appeals with
respect to the attempted rape specifications, and exclude
those specifications from our independent review of
aggravating circumstances and mitigating factors.
84a
D. Aggravated Robbery
Davis claims in his fourth proposition that there was
insufficient evidence of aggravated robbery to support a
conviction. R.C. 29/1.01(A)(2) states, “No person, in
attempting or committing a theft offense, *** shall **#
inflict or attempt to inflict serious physical harm on another.”
Davis argues that the prosecution failed to prove a “theft
offense” under R.C. 29/3.02. This claim lacks merit.
Amy Perkins’s husband, David, testified that Amy
“habitually” wore “a combination engagement and wedding
ring” consisting of twelve small diamonds and a two-carat
marquise, “and she also habitually wore a Rolex watch *** :
David specifically said Amy “wore the items every day.”
Thus, even though David could not testify from personal
knowledge that Amy wore the items on the day she was
murdered, a jury could reasonably infer that she did.
Nancy Brown, who saw Amy immediately after she was
pushed out of the car, specifically testified that Amy had “no
jewelry, no clothing, nothing on.” David Perkins testified that
the watch and ring were “missing” and he never saw them
again. Amy’s belongings which were found in the Toyota
“appeared to have been rifled through.” The majority of the
evidence supporting Davis’s conviction of a theft offense is
circumstantial; however, circumstantial evidence inherently
possesses the same value as direct evidence. State v. Jenks
(1991), 61 Ohio St. 3d 259, 574 N.E.2d 492, paragraph one
of the syllabus. Such evidence, when coupled with the
circumstances of the kidnapping and murder, is sufficient for
a rational jury to find beyond a reasonable doubt that a theft
offense took place. See State v. Allen (1995 ), 73 Ohio St. 3d
626, 632, 653 N.E.2d 675, 683.
Davis’s fourth proposition of law is overruled.
85a
II. Penalty Phase
A. Jury Instructions
In his eleventh proposition of law, Davis argues that the
trial court improperly gave the jury an “acquittal first”
instruction during the penalty phase of the trial. In support of
this proposition, Davis cites State v. Thomas (1988), 40 Ohio
St. 3d 213, 533 N.E.2d 286, wherein this court outlined the
progression that a jury must follow when the trial court
charges it on the indicted offense as well as a lesser included
offense or offenses:
“A jury must unanimously agree that the defendant is
guilty of a particular criminal offense before returning a
verdict of guilty on that offense. If a jury is unable to agree
unanimously that the defendant is guilty of a particular
offense, it may proceed to consider a lesser included offense
upon which evidence has been presented. The jury is not
required to determine unanimously that the defendant is not
guilty of the crime charged before it may consider a lesser
included offense.” /d. at paragraph three of the syllabus.
Thomas dealt with jury instructions regarding a guilt
determination and therefore is not directly applicable to the
death penalty versus life imprisonment recommendation that
a jury is required to make in the penalty phase of a capital
case. Nevertheless, Davis’s argument that a “proper [jury]
instruction would have informed the jury that had the state
failed to prove the principal charge or had the jury been
unable to agree on whether the state had failed to prove the
elements of the greater offense[,] it could have considered the
lesser charge” raises an issue identical to that which formed
the basis of our recent decision to overturn a death sentence
in State v. Brooks (1996), 75 Ohio St. 3d 148, 661 N.E.2d
1030. Because the pertinent jury instructions given in this
|
86a
case are distinguishable from those given in Brooks,
however, this case warrants dissimilar disposition.
In Brooks, the trial court charged the jury that “‘you are
now required to determine unanimously that the death
penalty is inappropriate before you can consider a life
sentence.’”” (Emphasis added.) /d. at 159, 661 N.E.2d at
1040. As a result of this instruction, the jury was required to
issue a death sentence recommendation unless each juror was
convinced that the death penalty was inappropriate. Jd. at
160, 661 N.E.2d at 1041. The Brooks court found error in
the trial court’s instruction because it was in direct conflict
with R.C. 2929.03(D)(2).
The Brooks court concluded that the erroneous jury
instruction was prejudicial to the defendant because it gave
jurors the impression that a single juror could not prevent a
death penalty recommendation on his or her conviction that
the aggravating circumstances in a case do not outweigh the
mitigating factors.
Davis cites the following portion of the trial court’s jury
instructions in support of his argument:
“On the other hand, if after considering all of the relevant
evidence raised at trial, the testimony, other evidence, the
unsworn statement of Wiley Davis, Jr. and the arguments of
counsel, you find that the state of Ohio failed to prove
beyond a reasonable doubt _ that the aggravating
circumstances which the defendant, Wiley Davis, Jr., was
found guilty of committing, outweigh the mitigating factors,
then you will return your verdict reflecting your decision;
that is, you must find that the State has failed to prove
beyond a _ reasonable doubt _ that the aggravating
circumstances which the defendant was found guilty of
committing outweigh the mitigating factors.
87a
“In this event you will then proceed to determine which
of the two possible life imprisonment sentences to
recommend to the Court.”
However, Davis has omitted the first portion of the trial
court's charge, which states:
“Tf all twelve members of the jury find by proof beyond a
reasonable doubt that the aggravating circumstances which
Wiley Davis, Jr. was found guilty of committing outweigh
the mitigating factors, if any, then you must return such
finding for the Court.” (Emphasis added.)
When read as a whole, the trial court’s instruction
effectively informed the jury that a death penalty
recommendation could be returned only after a unanimous
vote that the aggravating circumstances that Davis was found
guilty of committing outweigh the mitigating factor
presented in the case beyond a reasonable doubt. Moreover,
unlike the instructions given in Brooks, the jury was not
instructed that it was required to unanimously determine that
the death penalty was inappropriate before it could consider
the life sentence alternatives. Nevertheless, it cannot be
disputed that the jury instruction given in this case lacks the
clarity of the model instruction contemplated in Brooks,
which urges trial courts to underscore a solitary juror's ability
to prevent a death penalty recommendation.
In the instant case, in addition to giving the contested
charge, the trial court read the verdict forms to the jury and
thereafter charged it that all twelve jurors were required to be
in agreement before returning any of the verdicts. The court
also instructed the jury as follows:
“Now, your initial conduct upon entering the jury room,
again, is a matter of importance. You should consult with
each other; consider each other’s views, and deliberate with
2. eee
ase) RRS ae A Mera SN) ARES OT
88a
an objective of reaching an agreement, if you can do so,
without doing violence to your individual conscience and
good judgment.
“You should do so only after a discussion and a
consideration of the case with your fellow jurors.
‘Remember, each of you is equal in the jury room, and
you shouldn't hesitate to change your opinion if convinced by
your felicw jurors that you are wrong.
“However, do not surrender any honest conviction in
order to be congenial, or to reach a verdict solely of the belief
of the other jurors.” Upon review of all of the instructions
given in this case, it is clear that the jury was adequately
informed that unanimity was required to return a death
penalty recommendation. Each juror was made aware that he
or she could prevent a death penalty recommendation by
finding that the aggravating circumstances in the case do not
outweigh the mitigating factors—an essential fact which sets
this case apart from Brooks.
Because Davis has failed to demonstrate that his right to a
fair trial was prejudiced as a result of the contested jury
instruction, we overrule his eleventh proposition of law.
In his fifth proposition of law, Davis contends that, in
order to convict on the R.C.2929.04(A )(7) specifications, the
jury had to find unanimously either that Davis was the
principal offender or that he killed with prior calculation and
design. Davis claims error because the jury was not so
instructed; however, Davis did not request any such
instruction at trial. Under the plain error rule, Davis can
prevail only by showing that “but for the [alleged] error, the
outcome of the trial clearly would have been otherwise.”
State v. Long (1979), 53 Ohio St. 2d 91, 7 Ohio Op. 3d 178,
372 N.E.2d 804, paragraph two of the syllabus.
89a
We find that the alleged error here was not outcome-
determinative. The jury convicted Davis of aggravated
murder on Count One of the indictment. To do so, the jury
-had to unanimously find prior calculation and design.
Further, because there was no evidence produced at trial that
a second actor participated in committing the aggravated
murder, the jury’s unanimous verdict necessarily includes a
finding that Davis was the principal offender. See State v.
Woodard (1993), 68 Ohio St. 3d 70, 74-75, 623 N.E.2d 75,
78-79.
Count Two of the indictment charged Davis with killing
Perkins in the course of committing, attempting, or fleeing
the commission or attempted commission of “Kidnapping
and/or Aggravated Robbery and/or Rape.” (Emphasis
added.) Davis contends that the jury had to unanimously
determine which felony had been committed, and should
have been so instructed.
Again, Davis did not request such an instruction, waiving
this issue absent ptain error. We find that the alleged error
was not outcome-determinative. Although Count Two was
worded disjunctively, both it and Count One carried a
separate felony-murder specification for each of the felonies
alleged. The jury convicted Davis of each specification
individually. The jury also separately convicted Davis of
kidnapping (Count Three) and aggravated robbery (Count
Four). Because the jury made a separate, unanimous finding
of guilt as to each of the predicate felonies, there is no plain
error.
Davis’s fifth proposition of law is overruled.
B. Prosecutorial Misconduct
In his seventh proposition of law, Davis maintains that
three comments in the prosecutor’s penalty-phase closing
90a
argument were improper. He argues that the prosecutor’s
reference to the defendant’s unsworn statement, an appeal to
the jury’s sense of outrage, and an argument on nonstatutory
aggravating circumstances were all improper. However, the
only comment to which Davis objected at trial was the
prosecutor’s reference that Amy Perkins “died a horrible
death,” was dumped onto the street “like garbage *** with no
clothes on, for anybody to take a look at her,” and had a large
head wound that steamed in the cold air,
While we find that most of the disputed statement was
fair comment on the evidence and within the bounds of the
prosecutor’s wide latitude in closing argument, the reference
to the steaming head wound is arguably improper because it
tended to focus attention on the grotesque aspects of the
crime. Cf. Thompson, 33 Ohio St. 3d at 14-15, 514 N.E.2d at
420; State v. Keenan (1993), 66 Ohio St. 3d 402, 407-408,
613 N.E.2d 203, 208. However, the prosecutor’s improper
comment was isolated and did not deprive the defendant of a
fair trial. Therefore, it does not constitute reversible error.
See Smith v. Phillips (1982), 455 U.S. 209, 220, 102 S. Ct.
940, 947, 71 L. Ed. 2d 78, 88, fn. 10.
Because Davis failed to object at trial to the following
comments, he waived any error unless he can demonstrate
plain error. However, we need not invoke a plain error
analysis, as neither of the complained of prosecutorial
comments.constituted misconduct.
Davis first complains of the prosecutor’s comment that
Davis’s unsworn statement “was not subject to cross-
examination.” Davis claims that such a comment is forbidden
by State v. DePew (1988), 38 Ohio St. 3d 275, 528 N.E.2d
542, paragraph two of the syllabus.
9la
DePew holds that “the prosecutor may comment that the
defendant’s statement has not been made under oath * * *,
but such comment must be limited to reminding the jury that
the defendant’s statement was not made under oath, in
contrast to the testimony of all other witnesses.” /d. DePew
limits only prosecutorial comment on the lack of an oath. In
contrast, prosecutorial comment on the lack of cross-
q examination is consistent with DePew. See State v. Murphy
(1992), 65 Ohio St. 3d 554, 579, 605 N.E.2d 884, 904.
Davis additionally bases an allegation of misconduct on
the prosecutor's comment that “the Judge is going to instruct
you that you must consider the nature of the offense, the
history, character, and background of the offender.” Davis
claims that the prosecutor could not discuss these issues,
since the defense did not raise them in mitigation. DePew, ~-——
supra.
However, under R.C. 2929.04(B) the jury must consider
the nature and circumstances of the offense and the offender's
history, character, and background, whether the defense
raises these issues or not. Therefore, it is proper for a
prosecutor to discuss them. State v. Gumm (1995), 73 Ohio
St. 3d 413, 416-423, 653 N.E.2d 253, 259-264. As such, we
find that the prosecutor here did not try to mislead the jury
into considering and weighing these factors as aggravating
circumstances, see id. at 422, 653 N.E.2d at 263-264, and
overrule Davis’s seventh proposition of law.
C. Merger
In his fifteenth proposition of law, Davis contends that
the trial court erred by failing to merge the two aggravated
murder counts before submitting the question of penalty to
the jury. However, pursuant to State v. Poindexter (1988), 36
Ohio St. 3d 1, 5,520 N.E.2d 568, 572, this is not required.
Os eee eee
92a
We conclude that the trial judge should have merged the
two counts before finally sentencing Davis. See State vy.
Huertas (1990), 51 Ohio St. 3d 22, 28, 553 N.E.2d 1058.
1066. Accordingly, we merge the two convictions so that a
single death sentence remains. State v. Hawkins (1993), 66
Ohio St. 3d 339, 346, 612 N.E.2d 1227, 1232.
Because the error in sentencing was merely procedural
and did not invoive any substantial right, it constitutes
harmless error. State v. Brown (1988), 38 Ohio St. 3d 30S,
317-318, 528 N.E.2d 523, 538-539. Accordingly, we merge
Davis’s aggravated murder convictions and overrule Davis’s
fifteenth proposition of law in all other respects.
III. Sentencing Opinion
In his fourteenth proposition, Davis contends that the trial
court’s sentencing analysis was flawed. However, errors in
the sentencing opinion can be corrected by this court’s
independent reweighing of aggravation and mitigation. See.,
e.g., State v. Fox (1994), 69 Ohio St. 3d 183, 191-192, 631
N.E.2d 124, 131.
Davis argues that the opinion was factually inaccurate.
The opinion states, “Once [Davis] had isolated his innocent
victim, he moved with practiced precision.” It continues with
the statement that Davis “made Amy Perkins beg and plead
for her life.” While these statements are not supported by the
record, this court’s independent review can correct that
problem by not relying on them. Allen, 73 Ohio St. 3d at 643,
653 N.E.2d at 690.
Further, while we find that the opinion conveys a tone of
moral outrage, the opinion’s substance does not support
Davis’s inference that the trial court considered and weighed
the nature and circumstances as a nonstatutory aggravating
circumstance. Therefore, this proposition is overruled.
93a
IV. Ineffective Assistance of Counsel
Davis claims in his thirteenth proposition that his trial
counsel was ineffective because counsel failed to preserve
the claims presented in his fifth, sixth, seventh, ninth,
eleventh, and twelfth propositions.
We find that Davis’s counsel did not perform deficiently.
The disputed propositions either did not constitute error or
were harmless. Further, given the strong evidence of guilt
and the inconsequential mitigation, we find that these alleged
errors are not prejudicial under Strickland v. Washington
(1984), 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674,
because they do not undermine any confidence in the
reliability of the result. There can be no claim “that the
decision reached would reasonably likely have been different
absent the [alleged] errors.” /d. at 696, 104 §. Ct. at 2069, 80
L. Ed. 2d at 699; State v. Bradley (1989), 42 Ohio St. 3d 136,
143, 538 N.E.2d 373, 380.
Davis’s thirteenth proposition is overruled.
V. Independent Sentence Assessment
A. Aggravating Circumstances v. Mitigating Factor
Having found that the evidence shows beyond a
reasonable doubt that Davis committed the murder while
committing or attempting to commit aggravated robbery and
kidnapping, we now turn to our independent assessment of
whether the aggravating circumstances Davis was found
guilty of committing outweigh the mitigating factor adduced
by Davis. We determine that the aggravating circumstances
outweigh the mitigating factor presented beyond a reasonable
doubt.
94a
The defense essentially proffered no mitigating factors at
all, except brief pleas for mercy by Davis, his wife, his sister,
and his employer. Davis’s entire unsworn statement was: “I
am a little nervous right now, but I respect you all and you
all’s decision, and I just beg you all, spare my life.
“I understand what the Perkins family is going through,
but my family is going through it too. That’s all I got to say.”
Davis’s counsel expre:sly disclaimed reliance on the
specific mitigating factors in R.C. 2929.04(B)(1) through (6)
and relied solely on R.C. 2929.04(B)(7)—“Any other factors
that are relevant to *** whether the offender should be
sentenced to death.” In very brief closing argument, counsel
asked for mercy, emphasized the jury’s “tremendous”
responsibility, and asserted that “there must be something
there worth saving” because Davis’s employer had testified
for him in both phases of trial, whereas “most employers
would distance themselves *** from someone charged with a
crime.” The defense was unable to produce anything more,
despite an extensive investigation that included a thorough
search for mitigating factors.
While pleas for mercy made by Davis’s wife, sister, and
employer deserve some consideration, see State v. Webb
(1994), 70 Ohio St. 3d 325, 342-343, 638 N.E.2d 1 023, 1038,
the mercy pleas practically stand alone as mitigating
evidence. There is little or no mitigation in the nature and
circumstances of the offense. Further, the defense presented
no evidence of Davis’s history, his character, or background.
Davis was convicted of two valid death specifications:
kidnapping and aggravated robbery. Because these outweigh
the mitigating factor beyond a reasonable doubt, we find that
the death sentence is appropriate.
B. Proportionality
We also conclude that the penalty imposed is
proportionate when compared with similar capital cases. This
court has upheld death sentences in two cases involving
kidnapping and aggravated robbery See State v. Rue (1989),
41 Ohio St. 3d 18, 28-29, 535 N.E.2d 1351, 1363, and State
v. Cook (1992), 65 Ohio St. 3d 516, 530-531, 605 N.E.2d 70,
85. Moreover, the court has often upheld death sentences
where only one of these aggravating circumstances existed.
See, e.g., State v. Morales (1987), 32 Ohio St. 3d 252, 513
N.E.2d 267, and State v. D’ Ambrosio (1995), 73 Ohio St. 3d
141, 652 N.E.2d 710 (kidnapping); State v. Clark (1988), 38
Ohio St. 3d 252, 527 N.E.2d 844, State v. Carter (1995), 72
Ohio St. 3d 545, 651 N.E.2d 965, State v. Allen, supra ~
(aggravated robbery). Thus, the sentence is proportionate to
those imposed in similar cases.
VI. Conclusion
We reverse the judgment of the court of appeals with
respect to Davis’s conviction of the attempted rape
specifications and the merger of Davis’s aggravated murder
convictions and affirm its judgment and the sentence
imposed in all other respects.
96a
Judgment affirmed in part
and reversed in part.
MOYER, C.J., F.E. SWEENEY, PFEIFER AND
STRATTON, JJ., CONCUR.
DOUGLAS AND RESNICK, JJ., CONCUR IN
JUDGMENT ONLY.
APPENDIX
Proposition of Law No. 1: “The trial court must grant a
change of venue where the extensive pretrial publicity
renders it impossible for the defendant to obtain a fair trial.”
Proposition of Law No. 2: “A conviction which arises
from an unduly suggestive lineup must be overturned as such
a conviction is violative of the Fifth, Sixth, Eighth and
Fourteenth Amendments of the United States Constitution.”
Proposition of Law No. 3: “A criminal conviction for
attempted rape may not be sustained where the evidence
Supporting the charge does not constitute proof beyond a
reasonable doubt.”
Proposition of
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