# Appendix — Bagley v. Combs

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URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1477%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 2000
- **Citation:** 531 U.S. 1035

## Text

In the Supreme Court of the United States

MARGARKHT A. BAGLEY, WARDEN, Petitioner,
v.

RONALD DEAN COMBS, Respondent.

ON PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

APPENDIX TO THE
PETITION FOR A WRIT OF CERTIORARI

BETTY D. MONTGOMERY
Attorney General of Ohio

EDWARD B. FOLEY*
State Solicitor
*Counsel of Record

DAVID V. PATTON
Assistant Solicitor

STUART A. COLE
Assistant Attorney General

30 E. Broad Street, 17th Floor

Columbus, Ohio 43215
(614) 466-8980

S\4 OP

———
a

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TABLE OF CONTENTS

APPENDIX A: U.S. Court of Appeals Opinion

(og | RY aN la
APPENDIX B: U.S. Court of Appeals Judgment

(February 23, 2000).....................00. 49a
APPENDIX C: U.S. Court of Appeals Order

[denying petition for

rehearing] (March 28, 2000)........... 50a
APPENDIX D: U.S. District Court Opinion & Order

CCPeRII BG; BIRT) vaccines cccsesnccsstacesn 5la
APPENDIX E: U.S. District Court Judgment

(October 23, 1997) ..............cccccessee 271la
APPENDIX F: Ohio Supreme Court Op’-‘on

(December 18, 1991)..................... 272a
APPENDIX G: Ohio Court of Appeals Opinion

(September 19, 1990)..............0..... 300a

APPENDIX A

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 97-4369
RONALD DEAN COMBS, Petitioner-Appellant,

Vv,

RALPH COYLE, Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 95-00733--Sandra S. Beckwith, District Judge.
Argued: November 2, 1999
Decided and Filed: February 23, 2000

Before: NORRIS, DAUGHTREY, and MOORE, Circuit
Judges.

COUNSEL

ARGUED: Richard A. Chesley, JONES, DAY, REAVIS &
POGUE, Chicago, Illinois, for Appellant. Stuart A. Cole,
OFFICE OF THE ATTORNEY GENERAL OF OHIO,
Columbus, Ohio, for Appellee. ON BRIEF: Richard A.
Chesley, JONES, DAY, REAVIS & POGUE, Chicago,
Illinois, Jenny L. Klitch, JONES, DAY, REAVIS &
POGUE, Columbus, Ohio, Linda E. Prucha, PUBLIC
DEFENDER’S OFFICE, OHIO PUBLIC DEFENDER
COMMISSION, Columbus, Ohio, for Appellant. Stuart A.
Cole, Jonathan R. Fulkerson, OFFICE OF THE
ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for
Appellee.

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MOORE, J., delivered the opinion of the court, in
which DAUGHTREY, J., joined. NORRIS, J. [p. 49al,
delivered a separate opinion concurring in part and
dissenting in part and-joined in the judgment.

OPINION

KAREN NELSON MOORE, Circuit Judge.
Petitioner-appellant Ronald Dean Combs was convicted
by an Ohio jury of two counts of aggravated murder as
well as a specification of an aggravating circumstance as
to each count, and he was sentenced to death. Combs now
appeals the district court’s denial of his petition for a writ
of habeas corpus. His brief sets forth twenty-nine claims,
including various claims of ineffective assistance of
counsel, prosecutorial misconduct, trial court error, and
challenges to the constitutionality of his death sentence.
For reasons that will be explained below, we conclude
that Combs’s trial counsel rendered ineffective assistance
so egregious as to make us doubt whether Combs’s trial
produced a just result. Accordingly, we REVERSE the
district court’s judgment and REMAND to the district
court for issuance of a writ of habeas corpus conditioned
upon the State of Ohio granting Combs a new trial within
a reasonable period of time.

I, BACKGROUND

On July 15, 1987, Ronald Dean Combs shot and
killed Peggy Schoonover and her mother, Joan
Schoonover. Peggy Schoonover and Combs had been
involved in a relationship and had a child together, a son
named Joseph. The shootings took place in the Holiday
Park Tower parking lot in downtown Cincinnati, and an
off-duty police officer, Deputy Sheriff James Neil,

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witnessed the shootings. Neil ordered Combs to freeze,
but when Combs made an aggressive move and refused to
drop his shotgun, Neil fired six gunshots at Combs.
Combs was taken to the hospital and underwent
extensive treatment for his gunshot wounds. His right
arm was amputated, and his left arm was left partly
paralyzed.

Combs was charged with two counts of aggravated
murder, which is defined as “purposely, and with prior
calculation and design, caus[ing] the death of another.”
Ohio Rev. Code Ann. § 2903.01(A) (Banks-Baldwin 1997).
Each count contained a specification of an aggravating
circumstance, namely that the offense “was part of a
course of conduct involving the purposeful killing of or
attempt to kill two or more persons.” Joint Appendix
(hereinafter “J.A.”) at 9 (Indictment); Ohio Rev. Code
Ann. § 2929.04(A)(5) (Banks-Baldwin 1997). Under Ohio
law, a defendant becomes eligible for the death penalty if
he is convicted of or pleads guilty to aggravated murder
as well as at least one of the aggravating circumstances
set forth in § 2929.04. See Ohio Rev. Code Ann.
§ 2929.03(C)(2) (Banks-Baldwin 1997).

At trial, Combs did not contest that he fired the
two shots that killed Peggy and Joan Schoonover.
Instead, his defense was that he was too intoxicated from
alcohol and drugs to form the requisite intent to kill the
women or to have committed the killings with prior
calculation and design. To support this theory, Combs
presented the testimony of several witnesses who had
seen him ingesting substantial quantities of alcohol and
drugs in the days prior to and on the day of the shootings.
Defense witness Dr. Roger Fisher, a clinical psychologist,
also testified that, in his expert opinion, Combs was
under the influence of drugs and alcohol at the time of
the shootings. However, on cross examination, Fisher

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explained his belief that Combs, while intoxicated, was
nevertheless acting with intent and purpose.

On February 17, 1988, a jury found Combs guilty
of both counts of aggravated murder as well as the
specification of an aggravating circumstance as to each
count. Following a sentencing hearing conducted on
February 22, 1988, the jury returned a verdict imposing a
sentence of death. Pursuant to Ohio Revised Code
§ 2929.03(D\(3), the trial court independently reviewed
all the evidence and, upon concluding that the aggra-
vating circumstance outweighed the mitigating factors
beyond a reasonable doubt, it adopted the jury’s
recommended sentence of death.

Combs then unsuccessfully pursued direct appeals
and state post-conviction relief. Combs’s conviction was
affirmed by the state court of appeals on September 19,
1990, see Ohio v. Combs, No. C-880156, 1990 WL 135000,
at *9 (Ohio Ct. App. Sept. 19, 1990) (unpublished
opinion), and by the Ohio Supreme Court on December
18, 1991, see Ohio v. Combs, 581 N.E.2d 1071, 1084 (Ohio
1991), reh'g denied, 583 N.E.2d 974 (Ohio), cert. denied,
504 U.S. 977 (1992). Combs filed a petition for post-
conviction relief pursuant to Ohio Revised Code § 2953.21
raising fifty-nine claims for relief, which was denied by
the court of common pleas on May 20, 1993. J.A. at 420
(Ct. C.P. Denial of Pet. to Vacate). The court of appeals
affirmed the denial of relief, see Ohio v. Combs, 652
N.E.2d 205, 218 (Ohio Ct. App. 1994), and the Ohio
Supreme Court declined jurisdiction over Combs’s
discretionary appeal, see Ohio v. Combs, 644 N.E.2d 1028
(Ohio), recons. denied, 646 N.E.2d 469 (Ohio 1995). In
June of 1993, Combs filed an application for delayed
reconsideration in the court of appeals; this application
was denied on February 22, 1994. J.A. at 363-64 (Entry
Denying App. for Delayed Recons.). The Ohio Supreme

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Court affirmed the denial without opinion. See Ohio v.
Combs, 634 N.E.2d 1027 (Ohio), recons. denied, 638
N.E.2d 86 (Ohio 1994), cert. denied, 513 U.S. 1167 (1995).

After exhausting all state court remedies, Combs
filed a petition for a writ of habeas corpus in the United
States District Court for the Southern District of Ohio
pursuant to 28 U.S.C. § 2254. Combs’s petition asserted
fifty-three claims for relief. After finding all of these
claims to be either procedurally barred or without merit,
the district court denied relief on October 23, 1997. J.A.
at 231 (D. Ct. Op.). The district court issued a certificate
of probable cause on December 17, 1997. We have
jurisdiction over Combs’s timely appeal of the district
court’s judgment pursuant to 28 U.S.C. § 2253.

Combs’s appeal sets forth twenty-nine claims for
relief; these claims fall under the headings of ineffective
assistance of trial counsel at both the culpability and
sentencing phases, ineffective assistance of appellate
counsel, prosecutorial misconduct, trial court error, and
imposition of an unconstitutional sentence of death.
Because our resolution of Combs’s ineffective assistance
of trial counsel claim renders unnecessary a decision on
the others, we will confine our opinion to an analysis of
the ineffectiveness claim. Additionally, we will briefly
discuss trial errors that have been identified by the Ohio
state courts so as to ensure that these errors are avoided
on Combs’s retrial.

II. ANALYSIS
A. Procedural Default

It is well established that “[iJn all cases in which a
state prisoner has defaulted his federal claims in state

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court pursuant to an independent and adequate state
procedural rule, federal habeas review of the claims is
barred unless the prisoner can demonstrate cause for the
default and actual prejudice as a result of the alleged
violation of federal law, or demonstrate that failure to
consider the claims will result in a fundamental
miscarriage of justice.” Coleman v. Thompson, 501 U.S.
722, 750 (1991). In Maupin v. Smith, 785 F.2d 135 (6th
Cir. 1986), .we articulated an analysis that must be
followed when a state argues that a habeas claim is
defaulted because of a petitioner’s failure to observe a
state procedural rule. “First, the court must determine
that there is a state procedural rule that is applicable to
the petitioner’s claim and that the petitioner failed to
comply with the rule.” Jd. at 138. “Second, the court must
decide whether the state courts actually enforced the
state procedural sanction.” Jd. “Third, the court must
decide whether the state procedural forfeiture is an
‘adequate and independent’ state ground on which the
state can rely to foreclose review of a_ federal
constitutional claim.” Jd. As we have previously stated:
“For purposes of federal review in habeas cases, we may
consider as an adequate and independent state
_ procedural rule only a state procedural rule that was
firmly established and regularly followed by the time as
of which it [was] to be applied’. . . ."Rogers v. Howes, 144
F.3d 990, 992 (6th Cir. 1998) (quoting Ford v. Georgia,
498 U.S. 411, 423-24 (1991)) (alteration in original). If we
determine that the state procedural ground was adequate
and independent so as to bar review, the petitioner must °
then demonstrate cause and prejudice or a fundamental
miscarriage of justice.

Whether a state court rested its holding on procedural
default so as to bar federal habeas review is a question of
law that we review de novo. See Couch v. Jabe, 951 F.2d
94, 96 (6th Cir. 1991). In answering this question, we look

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to “the last explained state-court judgment.” Id. (quoting
Ylst v. Nunnemaker, 501 U.S. 797, 805 (1991)) (internal
quotation marks omitted).

Combs has raised six separate claims of ineffective
assistance of trial counsel at the culpability phase.
Although one of these claims was presentec on direct
appeal and is therefore properly preserved, the other
claims were first presented in Combs’s state post-
conviction petition. The State maintains that the state
courts’ dismissal of these claims under the doctrine of res
judicata was proper, and that we should therefore refuse
to review the merits of these procedurally defaulted
claims. Combs argues that the first prong of the Maupin
analysis is not satisfied because at the time he pursued
his direct appeal, no state procedural rule mandated that
his ineffectiveness claims be asserted on direct appeal.

The Ohio state courts relied on two cases to support
the decision that res judicata barred consideration of the
claims raised for the first time in Combs’s post-conviction
petition: Ohio v. Perry, 226 N.E.2d 104 (Ohio 1967), and
Ohio v. Cole, 443 N.E.2d 169 (Ohio 1982). In Perry, the
Ohio Supreme Court held that “[u]nder the doctrine of res
judicata, a final judgment of conviction bars a convicted
defendant who was represented by counsel from raising
and litigating in any proceeding except an appeal from
that judgment, any defense or any claimed lack of due
process that was raised or could have been raised by the
defendant at the trial, which resulted in that judgment of
conviction, or on an appeal from that judgment.” Perry,
226 N.E.2d at 106 syllabus para. 9. In Cole, the court
recognized that there are exceptions to the absolute
application of the Perry rule in proceedings for post-
conviction relief when the criminal defendant claims
ineffective assistance of trial counsel. See Cole, 443
N.E.2d at 171. The Cole court reasoned, however, that

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when a defendant, “upon direct appeal, was represented
by new counsel who was in no way enjoined from
asserting the ineffectiveness of appellant’s trial counsel
and [when] such question of effective counsel could fairly
be determined without examining evidence outside the
record, none of the qualifications engrafted upon the
Perry decision is apposite.” Jd. at 171. The Ohio Supreme
Court later commented that “Cole recognizes that res
judicata does not apply when trial and appellate counsel
are the same, due to the lawyer’s inherent conflict of
interest.” Ohio v. Lentz, 639 N.E.2d 784, 786 (Ohio
1994).!

Combs asserts that the Cole rule requiring
defendants to raise ineffectiveness claims on direct
appeal does not apply to him because he did not have new
appellate counsel. At trial, Combs was represented by
two attorneys, Timothy A. Hickey and Chuck R. Stidham.
On direct appeal, Stidham continued his representation
of Combs and was joined by new co-counsel, R. Fred
Hoefle. Combs argues that the same conflict of interest
that would deter an attorney from alleging his own
ineffectiveness is present when that attorney is simply
joined by a new attorney on appeal.

1 Lentz held that “[wJhen a criminal defendant is
represented by two different attorneys from the same
public defender’s office at trial and on direct appeal, res
judicata bars a claim of ineffective assistance of trial
counsel raised for the first time in a _ petition for
postconviction relief when such claim could have been
made on direct appeal without resort to evidence beyond
the record, unless the defendant proves that an actual
conflict of interest enjoined appellate counsel from raising
ineffective assistance of trial counsel on direct appeal.”
Lentz, 639 N.E.2d at 784 syllabus.

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The State acknowledges that counsel cannot be
expected to raise his own ineffectiveness on appeal, but
argues that res judicata was properly applied to Combs’s
situation. First, the State asserts that Combs’s new
counsel actually raised a claim of ineffective assistance of
counsel against co-counsel on direct appeal, thus proving
that there was no conflict.2 Second, citing Ohio v. Zuern,
Nos. C-900481, C-910229, 1991 WL 256497 (Ohio Ct.
App. Ist Dist. Dec. 4, 1991) (unpublished opinion), the
State argues that the rule in Cole applies as a matter of
law to a situation in which new co-counsel participates in
the appeal. Zuern presented a situation nearly identical
to the instant case. In Zuern, the defendant challenged
the state trial court’s dismissal of post-conviction claims
of ineffective assistance of counsel pursuant to Cole,
arguing that res judicata was inapplicable because his
appellate counsel consisted of one of his two trial
attorneys joined by one new appellate counsel. See Zuern,
1991 WL 256497, at *11. The court of appeals rejected the
defendant’s argument: “Unless we presume ... that new
co-counsel entering upon a criminal case at the appellate
level would deliberately not exercise his professional
judgment or duty to assert the ineffectiveness of his co-
counsel at trial if the record demonstrated a basis for
such a claim, a presumption we adamantly reject, we
perceive no reason why the reference in Cole to ‘new
counsel’ would not embrace new co-counsel as well as new
independent counsel.” Jd. at *12; see also Ohio v. Swiger,
708 N.E.2d 1033, 1039 (Ohio Ct. App. 9th Dist. 1998)
(holding res judicata applicable when appellant was
represented on direct appeal by trial counsel and a second
new attorney); Ohio v. Landrum, No. 98 CA 2401, 1999
WL 22626, at *12 (Ohio Ct. App. 4th Dist. Jan. 11, 1999)

2 This point is irrelevant to the determination of whether
the rule of Cole was regularly applied to situations such
as Combs’s at the time of his appeal.

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(unpublished opinion) (same); Ohio v. Broom, No. 72581,
1998 WL 230425, at *4 (Ohio Ct. App. 8th Dist. May 7,
1998) (unpublished opinion) (same); Ohio v. Steffen, No.
C-930351, 1994 WL 176906, at *3 (Ohio Ct. App. 1st Dist.
May 11, 1994) (unpublished opinion) (same); Ohio v.
Jamison, No. C-910736, 1992 WL 333011, at *5 (Ohio Ct.
App. Ist Dist. Nov. 10, 1992) (unpublished opinion)
(following Zuern to hold that” the phrase ‘new counsel’
includes new co-counsel as well as new independent
counsel,” such that res judicata may be invoked to bar
assertion of ineffective assistance of counsel claims). But
see Ohio v. Evans, No. L-97-1134, 1998 WL 351884, at *4
(Ohio Ct. App. 6th Dist. June 19, 1998) (unpublished
opinion) (“[Wle agree with the trial court that one
additional counsel on appeal does not permit the
application of res judicata to claims of ineffective
assistance of counsel. It is unlikely that, as co-counsel
with [trial counsel], [mew counsel] would be inclined to
assert a claim on appeal for ineffective assistance of trial
counsel.”).

However, Zuern was not decided until after the
court of appeals had ruled on Combs’s direct appeal.’ We

3 Even today, it is not clear that the Zuern rule would
qualify as a firmly established state procedural rule. The
Ohio Supreme Court has never spoken on the issue, and
not all the courts of appeals agree with the outcome in
Zuern. Furthermore, the reasoning in Zuern seems to be —
in tension with that of the Supreme Court of Ohio in
Lentz. Lentz can be read for the proposition that if a new
attorney represents a defendant on appeal, res judicata
applies unless there is an actual conflict. There may well
be an actual conflict in a situation in which trial counsel
is simply joined by a new attorney on direct appeal, thus
suggesting that the per se rule of Zuern is the incorrect
approach.

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must instead look to established state law at the time
Combs pursued his appeal. Cole was the authoritative
case at that time, and Cole does not speak to a situation
in which trial counsel continues on appeal with the
addition of a new co-counsel.4 Because there is ambiguity
surrounding the issue and because the State cannot point
to a case firmly establishing as of the time of Combs’s
appeal that ineffectiveness claims must be brought on
_direct appeal when trial counsel also serves as co-counsel
on appeal, we are unable to conclude that a firmly
established state procedural rule existed. Indeed, at the
time Combs’s appeal was filed it would have been entirely
reasonable to conclude that Combs’s new counsel did not
meet the Cole standard of being “in no way enjoined from
asserting the ineffectiveness of appellant’s trial counsel,”
Cole, 443 N.E.2d at 171, and thus that res —_— would
not apply.

Because we conclude that no firmly established
procedural rule mandated the bringing of ineffectiveness
claims on direct appeal in Combs’s situation, we may

4 In a previous decision, we cited to the court of appeals’s
opinion in Combs, 652 N.E.2d at 209, as “holding that
post-conviction relief is not available by virtue of the
doctrine of res judicata to address constitutional claims
that could have been raised on direct appeal from the
conviction and sentence.” Norris v. Schotten, 146 F.3d
314, 332 (6th Cir.), cert. denied, [525 U.S. 935], 119 S. Ct.
348 (1998). Norris did not involve the issue of whether res
judicata applies to bar a claim of ineffective assistance of
trial counsel when one new co-counsel joins trial counsel
in the appeal. Although in Norris we relied on Combs’s
explanation of the Perry rule, we did not express an
opinion as to whether that rule was properly applied to
the facts of the Combs case.

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review the merits of all of those claims, including claims
that the state court deemed barred by res judicata.

B. Ineffective Assistance of Trial Counsel at the
Culpability Phase

We review a district court’s denial of habeas
corpus relief de novo, but we review any findings of fact
made by the district court for clear error. Findings of fact
made by a state court are entitled to complete deference if
supported by the evidence. See Norris v. Schotten, 146
F.3d 314, 323-24 (6th Cir.), cert. denied, [525 U.S. 935),
119 S. Ct. 348 (1998).5 The presumption of correctness
accorded to state court findings “only applies to basic,
primary facts, and not to mixed questions of law and
fact,” and it “applies to implicit findings of fact, logically
deduced because of the trial court’s ability to adjudge the
witnesses’ demeanor and credibility.” Groseclose v. Bell,
130 F.3d 1161, 1164 (6th Cir, 1997) (quoting McQueen v.
Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996), cert. denied,
§20 U.S. 1257 (1997)), cert. denied, 523 U.S. 1132 (1998).

1. The Strickland Standard

“The benchmark for judging any claim of
ineffectiveness must be whether counsel's conduct so
undermined the proper functioning of the adversarial
process that the trial cannot be relied on as having
produced a just result.” Strickland v. Washington, 466
U.S. 668, 686 (1984). The well-known two part test for

5 The Antiterrorism and Effective Death Penalty Act of
1996, Pub. L. 104-132, 110 Stat. 1214 (1996), is
inapplicable to this case because Combs filed his petition
for a writ of habeas corpus in the district court before the
enactment of the statute. See Lindh v. Murphy, 521 U.S.
320, 336 (1997).

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evaluating ineffectiveness claims was first articulated in
Strickland:

First, the defendant must show that counsel's
performance was deficient. This requires showing
that counsel made errors so serious that counsel
was not functioning as the “counsel” guaranteed
the defendant by the Sixth Amendment. Second,
the defendant must show that the deficient
performance prejudiced the defense. This requires
showing that counsel’s errors were so serious as to
deprive the defendant of a fair trial, a trial whose
result is reliable.

Id, at 687; see also, e.g., Tucker v. Prelesnik, 181 F.3d 747,
754 (6th Cir, 1999); Chandler v. Jones, 813 F.2d 773, 781
(6th Cir. 1987).

With regard to the performance prong of the
inquiry, the defendant must show that counsel’s
representation fell below an _ objective standard of
reasonableness, Judicial scrutiny of performance is highly
deferential, and “la| fair assessment of attorney
performance requires that every effort be made to
eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s
perspective at the time.” Strickland, 466 U.S. at 689.
Therefore, this court should judge whether, in light of all
the circumstances viewed at the time of counsel's
conduct, counsel’s “acts or omissions were outside the
wide range of professionally competent assistance.” Jd. at
690. Furthermore, “strategic choices made after thorough
investigation of law and facts relevant to plausible
options are virtually unchallengeable; and _ strategic
choices made after less than complete investigation are

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reasonable precisely to the extent that reasonable
professional judgments support the limitations on
investigation.” Id. at 690-91; see also Meeks v. Bergen, 749
F.2d 322, 328 (6th Cir. 1984). Finally, when analyzing an
attorney’s performance, “[i]t will generally be appropriate
for a reviewing court to assess counsel’s overall
performance throughout the case in order to determine
whether the ‘identified acts or omissions’ overcome the
presumption that counsel rendered reasonable
professional assistance.” Kimmelman v. Morrison, 477
U.S. 365, 386 (1986) (quoting Strickland, 466 U.S. at
690). ;

As for the prejudice prong of the Strickland test,
the Court instructed: “The defendant must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would
have been different. A reasonable probability is a
probability sufficient to undermine confidence in the
outcome.” Strickland, 466 U.S. at 694. The prejudice
prong “focuses on the question whether counsel’s deficient
performance renders the result of the trial unreliable or
the proceeding fundamentally unfair.” Lockhart v.
Fretwell, 506 U.S. 364, 372 (1993). Therefore, the
prejudice inquiry must not focus solely on mere outcome
determination; attention must be given to “whether the
result of the proceeding was fundamentally unfair or
unreliable.” Jd. at 369.

Both the performance and prejudice components of
the ineffectiveness inquiry are mixed questions of law
and fact entitled to de novo review. See Strickland, 466
U.S. at 698; Groseclose, 130 F.3d at 1164 (“An ineffective
assistance of counsel claim presents a mixed question of
law and fact, for which both the state-court and district-
court determinations are subject to de novo review by this
court.”).

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2. Defense Counsel’s Failure to Object to the
Unconstitutional Use of Combs’s “Talk to
My Lawyer” Statement

Combs first claims that his trial counsel provided
ineffective representation by failing to object both to the
prosecution’s use of a statement made by Combs to a
police officer and to the trial court’s sua sponte jury
instruction concerning the purposes for which the jury
could consider that statement.? As the Ohio Supreme
Court found, after Combs had been shot Cincinnati police
officer Douglas Ventre arrived on the scene and found
Combs sitting on the ground and holding a shotgun. See
Combs, 581 N.E.2d at 1074. Ventre then pulled the
shotgun away from Combs and asked Combs what had
happened, to which Combs replied “the guy shot me.” Jd.
(internal quotation marks omitted). Ventre later repeated
the same question as Combs was being placed into an
ambulance, and Combs “told [Ventre] to talk to his
lawyer.” Id. (internal quotation marks omitted). After
Officer Ventre testified about this “talk to my lawyer”
statement, the trial court instructed:

Members of the jury, I am going to give you
a special instruction at this time based upon the
testimony that you heard the defendant Ronald
Dean Combs has a constitutional right not to
speak to members of law enforcement without
counsel and not to speak to them. You cannot
draw any inferences for or against the defendant
because he may have requested an attorney or
made no further statements to Officer Ventre
when he was on the stretcher as Officer Ventre
testified to.

8 This claim was raised on direct appeal and denied. It
was therefore properly preserved for our review.

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You may consider this evidence, however, as it
relates to the elements of purpose and prior
calculation and design but what weight you give to
this testimony depends upon your findings and the
weight that you attribute to this testimony in this
regard so please remember that.

R. at 1052-53; J.A. at 2673-74. Defense counsel did not
object to this jury instruction, nor did they object to the
prosecution’s use of this statement at trial. In closing
argument, the prosecution stated:

Talk to my lawyer. Talk to my lawyer. Does that
sound like someone who’s so intoxicated he doesn’t
know what is going on? Isn’t that evidence that he
realizes the gravity of the situation and at this
time gave that particular comment or response to
Officer Ventre?

R. at 1255; J.A. at 2761. Combs argues that “the trial
court’s instruction permitted, and the prosecution
exploited, Mr. Combs’ exercise of his right to consult with
counsel as substantive evidence on the _ ultimate

culpability phase issue — Mr. Combs’ intent.” Pet’r Br. at
18.

In order to decide whether counsel’s failure to
object to the use of the “talk to my lawyer” statement was
deficient, we must first determine whether the use of this
statement was constitutionally defective such that any
reasonable counsel would have objected under the
circumstances. Although Combs’s statement referred not
to silence but to his right to an attorney, the admissibility
of the statement is properly analyzed as a comment on
prearrest silence. See Wainwright v. Greenfield, 474 U.S.
284, 295 n.13 (1986) (“With respect to post-Miranda
warnings ‘silence,’ we point out that silence does not
mean only muteness; it includes the statement of a desire

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to remain silent as well as of a desire to remain silent
until an attorney has been consulted.”). Combs’s
statement is best understood as communicating a desire
to remain silent outside the presence of an attorney.

Combs _ grounds his argument about the
admissibility of the statement in the Supreme Court’s
decision in Doyle v. Ohio, 426 U.S. 610 (1976). In Doyle,
the petitioner took the stand at his trial for selling
marijuana and explained, for the first time, that he had
been framed. See id. at 612-13. For impeachment
purposes, the prosecutor asked the petitioner why he had
not told this story immediately after his arrest. See id. at
613. The petitioner was convicted, and he appealed on the
ground that cross-examination regarding his post-arrest
silence was error. See id. at 615. The Supreme Court held
“that the use for impeachment purposes of petitioners’
silence, at the time of arrest and after receiving Miranda
warnings, violated the Due Process Clause of the
Fourteenth Amendment.” Id. at 619. The theory
underlying Doyle is that while Miranda warnings contain
no express assurance that silence wil] carry no penalty,
“such assurance is implicit to any person who receives the
warnings.” Id. at 618. On this reasoning, the Court
concluded that it would be fundamentally unfair first to
induce a defendant to remain silent through Miranda
warnings and then to penalize the defendant who relies
on those warnings by allowing the defendant’s silence to
be used to impeach an exculpatory explanation offered at
trial. See id.

Later cases have restricted Doyle and have
reaffirmed that the “fundamental unfairness” identified
by the Court derives from the implicit assurances of the
Miranda warnings. In Jenkins v. Anderson, 447 U.S. 231
(1980), the Court held that due process is not violated by
the impeachment use of prearrest, pre-Miranda warnings

et

18a

silence, see id. at 238-39. In Fletcher v. Weir, 455 U.S. 603
(1982), the Court held that impeachment use of post-
arrest, pre-Miranda warnings silence does not offend due
process, see id. at 607. The Weir Court explained that
Doyle was a case in which the government had actually
induced silence with Miranda warnings, and it noted that
any broadening of Doyle to a situation in which a
defendant had not yet received Miranda warnings —
even if the defendant was in custody — was unsupported
by the reasoning of Doyle. See id. at 605-06.

In the instant case, Combs had not received
Miranda warnings prior to his “talk to my lawyer”
statement. The Ohio Supreme Court concluded that this
was of no significance based on the following reasoning:

[A]t the point when Combs was placed in the
ambulance, we find that Combs ‘was in custody
and had a right to remain silent, consult a lawyer,
and receive a Miranda warning. When he arrived
at the scene, Officer Ventre personally took the
shotgun from Combs; there were two women dead
from shotgun blasts in the adjacent car; and
Ventre had been at the scene for some ten to
fifteen minutes. Ventre’s questioning, without a
Miranda warning, violated those rights.

Combs, 581 N.E.2d at 1075-76. However, even if Combs
should have received Miranda warnings prior to his “talk
to my lawyer” statement, the Doyle rationale is still
inapplicable. As we have explained, the Doyle line of
cases clearly rests on the theory that Miranda warnings
themselves carry an implicit assurance that silence will
not be penalized; actual receipt of the warnings is key.
Therefore, the comment on Combs’s pre-Miranda silence
did not violate due process.

19a

This does not, however, rule out the possibility
that such comment is a violation of Combs’s Fifth
Amendment privilege against self-incrimination.? In
Jenkins, in addition to ruling that impeachment use of a
defendant’s prearrest silence is not violative of due
process, the Court also held that such use does not offend
the Fifth Amendment’s privilege against self-
incrimination. See Jenkins, 447 U.S. at 238. The
petitioner in that case took the stand at his murder trial
and testified that he had killed in self-defense. See id. at
232. During cross-examination and again during closing
arguments, the prosecutor, referring to the fact that the
petitioner had waited two weeks to report the stabbing,
attempted to impeach the petitioner’s credibility by
implying that he would have come forward earlier if he
had truly killed in self-defense. See id. at 233-34. The
Supreme Court easily disposed of the petitioner’s Fifth
Amendment objection to this use of his prearrest silence,
relying on its 1926 decision in Raffel v. United States, 271
U.S. 494 (1926). Raffel held that the government may
impeach a defendant who takes the stand in his own
defense with his prior silence without violating the Fifth
Amendment. See id. at 499. The Court in Raffel relied on
a waiver theory, reasoning that a defendant waives his
Fifth Amendment immunity from giving testimony by
offering himself as a witness. See id. at 496-97. The
Raffel Court concluded by explaining:

7 The Fifth Amendment provides in relevant part that no
person “shall be compelled in any criminal case to be a
w:tness against himself.” U.S. CONST. amend. V.

20a

The safeguards against self-incrimination
are for the benefit of those who do not wish to
become witnesses in their own behalf and not for
those who do. There is a sound policy in requiring
the accused who offers himself as a witness to do
so without reservation, as does any other witness.
We can discern nothing in the policy of the law
against self-incrimination which would require the
extension of immunity to any trial or to any
tribunal other than that in which the defendant
preserves it by refusing to testify.

Id. at 499. The Jenkins Court therefore reasoned that the
rule of Raffel permits impeachment use of prearrest
silence.

The Jenkins Court went on to explain that
permitting the impeachment use of a defendant’s prior
silence does not unconstitutionally burden the exercise of
Fifth Amendment rights. See Jenkins, 447 U.S. at 236-38.
The Court noted that the “threshold question is whether
compelling the election impairs to an appreciable extent
any of the policies behind the rights involved.” Jd. at 236
(quoting Chaffin v. Stynchcombe, 412 U.S. 17, 32 (1973)).
Relying on prior decisions, the Jenkins Court reasoned
that the possibility of impeachment by prior silence does
not impermissibly burden the privilege against self-
incrimination. See id. at 236-38. These prior decisions .
suggested that a defendant’s real dilemma lies in
determining whether to testify or not; once a defendant
has voluntarily taken the stand, the rule that he must
testify fully does not significantly add to this dilemma
and is indeed a defendant’s obligation, as the privilege
against self-incrimination “cannot be construed to include
the right to commit perjury.” Jd. at 238 (quoting Harris v.

2la

New York, 401 USS. 222, 225 (1971)). The Court then
explained that “{iJn determining whether a constitutional
right has been burdened impermissibly, it also is
appropriate to consider the legitimacy of the challenged
governmental practice.” Id. at 238. The Court reasoned
that the impeachment use of prearrest silence
“enhance[s] the reliability of the criminal process” by
giving prosecutors the chance to test a defendant’s
- credibility by asking him to explain prior inconsistencies.
Id. “Once a defendant decides to testify, ‘[t]he interests of
the other party and regard for the function of courts of
justice to ascertain the truth become relevant, and
prevail in the balance of considerations determining the
scope and limits of the privilege against self-
incrimination.” Jd. (quoting Brown v. United States, 356
U.S. 148, 156 (1958)) (alteration in original).

Jenkins did not, however, address the question at
issue in this case, namely, whether the use of prearrest
silence as substantive evidence of guilt violates the Fifth
Amendment. See id. at 236 n.2 (leaving this question
unresolved). That use of a defendant’s prearrest silence
as substantive evidence of guilt is significantly different
than the use of prearrest silence to impeach a defendant’s
credibility on the stand is clear. In Griffin v. California,
380 U.S. 609, 615 ( 1965), the Supreme Court held that
the Fifth Amendment “forbids either comment by the
prosecution on the accused’s [refusal to testify at trial] or
instructions by the court that such silence is evidence of
guilt.” The Court reasoned that a contrary rule would
allow the state to submit as substantive proof of the
defendant’s guilt his silence by not testifying. See id. at
613 (“No formal offer of proof is made as in other
situations; but the prosecutor’s comment and the court’s
acquiescence are the equivalent of an offer of evidence
and its acceptance.”). Such proffer of the defendant’s
refusal to testify as evidence of guilt would impermissibly

22a

penalize the exercise of the privilege against self-
incrimination and would “cut{ ] down on the privilege by
making its assertion costly.” Id. at 614.

The circuits that have considered whether the
government may comment on a defendant’s prearrest
silence in its case in chief are equally divided. Three
circuits have held that such use violates the privilege
against self-incrimination found in the Fifth Amendment,
relying principally upon Griffin. See United States ex rel.
Savory v. Lane, 832 F.2d 1011, 1017 (7th Cir. 1987);
Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir.), cert.
denied, 493 U.S. 969 (1989); United States v. Burson, 952
F.2d 1196, 1201 (10th Cir. 1991), cert. denied, 503 U.S.
997 (1992); cf. United States v. Caro, 637 F.2d 869, 876
(2d Cir. 1981) (“Whatever the future impact of Jenkins
may be, we have found no decision permitting the use of
silence, even the silence of a suspect who has been given
no Miranda warnings and is entitled to none, as part of
the Government’s direct case.”; “(W]e are not confident
that Jenkins permits even evidence that a suspect
remained silent before he was arrested or taken into
custody to be used in the Government’s case in chief.”). In
Savory, the Seventh Circuit explained that because the
defendant did not take the stand and because the
prosecution referred to the defendant’s silence as
substantive evidence of guilt, the case did not involve the
application of Doyle but rather the application of Griffin.
See Savory, 832 F.2d at 1017. The Seventh Circuit
reasoned that while Griffin involved governmental use of
the defendant’s silence at trial, “(t]he right to remain
silent, unlike the right to counsel, attaches before the
institution of formal adversary proceedings.” Jd. at 1017.
The court therefore concluded that Griffin’s prohibition
on the use of a defendant’s silence as substantive
evidence of guilt “applies equally to a defendant’s silence

23a

before trial, and indeed, even before arrest.” Jd.8 In
Coppola, the First Circuit cited Raffel and Griffin and
reasoned that the “broad rule of law” set forth in those
cases “is that where a defendant does not testify at trial it
is impermissible to refer to any fifth amendment rights
that defendant has exercised.” Coppola, 878 F.2d at 1567.
It therefore held that the prosecution’s use of the
defendant’s prearrest silence in its case in chief violated
the Fifth Amendment. See id. at 1568. The Tenth Circuit
reached the same result in Burson: “The general rule of
law is that once a defendant invokes his right to remain
silent, it is impermissible for the prosecution to refer to
any Fifth Amendment rights which defendant exercised.
To be sure, exceptions exist to this rule, such as the use of
silence for impeachment in certain circumstances, but
such exceptions have no applicability to the case before
us.” 952 F.2d at 1201 (citation omitted).

Three circuits, on the other hand, have reached
the opposite conclusion. See United States v. Rivera, 944
F.2d 1563, 1568 (llth Cir. 1991); United States v.
Zanabria, 74 F.3d 590, 593 (5th Cir. 1996); United States

8 The Seventh Circuit distinguished the Doyle line of
cases as follows:

[T]he Doyle rule is predicated on the implied promise
of the Miranda warnings. The cases which have
allowed impeachment by silence rely on the fact that
the defendant opens himself to impeachment by
taking the stand. There is, on the other hand, a
constitutional right to say nothing at all about the
allegations. While the presence of Miranda warnings
might provide an additional reason for disallowing use
of the defendant’s silence as evidence of guilt, they are
not a necessary condition to such a prohibition.

Savory, 832 F.2d at 1017-18 (citations omitted).

24a

v. Oplinger, 150 F.3d 1061, 1066-67 (9th Cir. 1998). In
Rivera, the Eleventh Circuit, citing Jenkins, held that
“[t]he government may comment on a defendant’s silence
if it occurred prior to the time that he is arrested and
given his Miranda warnings.” Rivera, 944 F.2d at 1568.
Although the defendant raised only a due process
challenge to the use of her prearrest silence, the Eleventh
Circuit found no constitutional infirmity with the use of
that silence in the government’s case in chief. See id. The
Fifth Circuit in Zanabria held, without citing any cases,
that the Fifth Amendment did not protect the defendant’s
prearrest silence because the silence at issue was not
induced by the government. See Zanabria, 74 F.3d at 593.
The court explained: “The fifth amendment protects
against compelled self-incrimination but does not, as
Zanabria suggests, preclude the proper evidentiary use
and prosecutorial comment about every communication or
lack thereof by the defendant which may give rise to an
incriminating inference.” Jd. Most recently, the Ninth
Circuit joined the Fifth and Eleventh Circuits in holding
that the use of a defendant’s prearrest silence as
substantive evidence of guilt does not violate the Fifth
Amendment. See Oplinger, 150 F.3d at 1067. The Ninth
Circuit, following the reasoning of Justice Stevens’s
concurring opinion in Jenkins, explained that “the
privilege against compulsory self-incrimination is
irrelevant to a citizen’s decision to remain silent when he
is under no official compulsion to speak.” Jd. at 1066.

We agree with the reasoning expressed in the.
opinions of the Seventh, First, and Tenth Circuits, and
today we join those circuits in holding that the use of a
defendant’s prearrest silence as substantive evidence of
guilt violates the Fifth Amendment’s privilege against
self-incrimination. Like those circuits, we believe “that
application of the privilege is not limited to persons in
custody or charged with a crime; it may also be asserted

25a

by a suspect who is questioned during the investigation of
a crime.” Coppola, 878 F.2d at 1565. The Supreme Court
has given the privilege against self-incrimination a broad
scope, explaining that “[i]Jt can be asserted in any
proceeding, civil or criminal, administrative or judicial,
investigatory or adjudicatory; and it protects against any
disclosures that the witness reasonably believes could be
used in a criminal prosecution or could lead to other
_evidence that might be so used.” Kastigar v. United
States, 406 U.S. 441, 444-45 (1972) (footnote omitted); see
also Hoffman v. United States, 341 U.S. 479, 486 (1951)
(“[The privilege] must be confined to instances where the
witness has reasonable cause to apprehend danger from a
direct answer.”); Hoffman, 341 U.S. at 486-87 (“To
sustain the privilege, it need only be evident from the
implications of the question, in the setting in which it is
asked, that a responsive answer to the question or an
explanation of why it cannot be answered might be
dangerous because injurious disclosure could result.”). In
a prearrest setting as well as in a post-arrest setting, it is
clear that a potential defendant’s comments could provide
damaging evidence that might be used in a criminal
prosecution; the privilege should thus apply.

Furthermore, we note that even under the
reasoning of Justice Stevens in his Jenkins concurrence,
the Fifth Amendment would apply to Combs’s situation.
In Jenkins, Justice Stevens agreed with the majority that
the Fifth Amendment was inapplicable to the petitioner’s
claim, but Justice Stevens objected to the majority’s
reliance on the waiver theory of Raffel. See Jenkins, 447
U.S. at 241 (Stevens, J., concurring in the judgment).
Instead, Justice Stevens would have ruled that the Fifth
Amendment does not apply to a precustody context:
“When a citizen is under no official compulsion whatever,
either to speak or to remain silent, I see no reason why
his voluntary decision to do one or the other should raise

26a

any issue under the Fifth Amendment. For in
determining whether the privilege is applicable, the
question is whether petitioner was in a position to have
his testimony compelled and then asserted his privilege,
not simply whether he was silent.” Id. at 243-44 (footnote
omitted).

Even assuming that the Fifth Amendment is
inapplicable to precustody contexts,° the privilege would

9 We stress that we do not believe that the Fifth
Amendment comes into play only when a defendant is
taken into custody, for it would eviscerate the privilege to
say that, although a defendant’s post-custody silence may
not be used as substantive evidence against him, a
defendant’s precustody silence may. As Justice Marshall
explained in his Jenkins dissent:

I confess I find Mr. Justice Stevens’ view of the
Fifth Amendment incomprehensible. Apparently,
under that view, a person’s right not to incriminate
himself exists only if the government has already
attempted to compel him to do so. If no officials have
tried to get the person to speak, he evidently has a
duty to incriminate himself, because the reporting of
crime is a civic duty and the Fifth Amendment is not
applicable since the decision to speak or remain silent
is, at that time, “voluntary.”

But the prohibition against compelled self-
incrimination is another way of expressing the right
not to incriminate oneself. After all, the only means of
compelling a person to incriminate himself is to
penalize him if he does not. Of course the voluntary
decision to remain silent in the absence of any official
compulsion does not “raise any issue under the Fifth
Amendment,” since there has been no _ self-
incrimination at all. A voluntary decision to speak

27a

still be applicable to Combs, for we agree with the Ohio
Supreme Court’s finding that Combs was in custody at
the time he made the “talk to my lawyer” statement. In
Stansbury v. California, 511 U.S. 318 (1994), the
Supreme Court explained that “[iJn determining whether
an individual was in custody, a court must examine all of
the circumstances surrounding the interrogation, but ‘the
ultimate inquiry is simply whether there [was] a ‘formal
arrest or restraint on freedom of movement’ of the degree
associated with a formal arrest.” Jd. at 322 (citing
California v. Beheler, 463 U.S. 1121, 1125 (1983))
(alteration in original). Moreover, in the custody
determination, “the only relevant inquiry is how a
reasonable man in the suspect’s position would have
understood his situation.” Jd. at 324 (quoting Berkemer v.
McCarty, 468 U.S: 420, 442 (1984)); see also United States
v. Ozuna, 170 F.3d 654, 658 (6th Cir. 1999)
(“Determination of whether an individual is in custody for
purposes of applying the Miranda doctrine considers ‘how
a reasonable man in the [individual’s] position would

also does not implicate the Fifth Amendment because
the self-incrimination was not compelled. But to
impose a duty to report one’s own crime before an
official accusation has been made would itself be to
compel self-incrimination, thus bringing the Fifth
Amendment into play. And, as Griffin v. California
makes plain, the Constitution also prohibits the
government from burdening the right not to
incriminate oneself by penalizing silence. In the
present case the violation of the Fifth Amendment
occurred not when the defendant remained silent, but
when that silence was later used against him at his
criminal trial.

Jenkins, 447 U.S. at 250 n.4 (Marshall, J., dissenting)
(citations omitted).

28a

have understood the situation.”(quoting Berkemer, 468
U.S. at 442) (alteration in original)). Applying that
standard to the facts of this case leads to a conclusion
that Combs was in custody when Officer Ventre asked
him for the second time what had happened. Although
Miranda warnings are not required prior to routine
questioning when officers have no details concerning
what happened when they arrive on the scene, see United
States v. Wolak, 923 F.2d 1193, 1196 (6th Cir.), cert.
denied, 501 U.S. 1217 (1991), the instant case presents a
different situation. Ventre personally took the shotgun
away from Combs; he testified that he “pointed [his]
weapon at the subject on the ground and ordered him to
drop the shotgun” and that he “ordered him several times
to drop the shotgun and [Combs] started raising the
shotgun toward me.” R. at 1042; J.A. at 2670 (Ventre
Test.). In addition, ten or fifteen minutes passed from the
time Ventre arrived on the scene until the second
question. In that time, other officers had arrived and

Ventre would surely have had some details about the

incident. A reasonable person in Combs’s situation could
have believed that he was under arrest, and we therefore
conclude that Combs was in custody.

Having decided that the privilege against self-
incrimination applies to a prearrest situation, an analysis
such as the one employed by the Court in Jenkins leads
us to the conclusion that the use of prearrest silence as
substantive evidence of guilt is an impermissible burden
upon the exercise of that privilege. First, permitting the
use of silence in the government’s case in chief would
substantially impair the policies behind the privilege. The
Supreme Court in Murphy v. Waterfront Commission, 378
U.S. 52 (1964), explained:

[The privilege against self-incrimination] reflects
many of our fundamental values and most noble

29a

aspirations: our unwillingness to subject those
suspected of crime to the cruel trilemma of self-
accusation, perjury or contempt; our preference for
an accusatorial rather than an_ inquisitorial
system of criminal justice; our fear that self-
incriminating statements will be elicited by
inhumane treatment and abuses; our sense of fair
play which dictates “a fair state-individual balance
by requiring the government to leave the
individual alone until good cause is shown for
disturbing him and by requiring the government
in its contest with the individual to shoulder the
entire load”; our respect for the inviolability of the
human personality and of the right of each
individual “to a private enclave where he may lead
a private life”; our distrust of self-deprecatory
statements; and our realization that the privilege,
while sometimes “a shelter to the guilty,” is often
“a protection to the innocent.”

Id. at 55 (citations omitted). As the Jenkins Court
recognized, when the government uses a defendant’s
prearrest silence for purposes of impeachment, these
policies are largely not implicated; every defendant is
already under some pressure to testify fully so that the
jury does not draw an unfavorable inference from his
silence (or partial silence), and a rule permitting a
defendant to be impeached on the stand with prior silence
does not add substantially to this pressure. If, on the
other hand, prearrest silence may be used as substantive
evidence of guilt regardless of whether or not the
defendant testifies at trial, then the defendant is cast into
the very trilemma outlined by the Murphy Court.
Because in the case of substantive use a defendant cannot
avoid the introduction of his past silence by refusing to
testify, the defendant is under substantial pressure to
waive the privilege against self-incrimination either upon

30a

first contact with police or later at trial in order to
explain the prior silence. Perhaps most importantly, use
of a defendant’s prearrest silence as substantive evidence
of guilt substantially impairs the “sense of fair play”
underlying the privilege. Unlike in the case of
impeachment use, the use of a defendant’s prior silence
as substantive evidence of guilt actually lessens the
prosecution’s burden of proving each element of the
crime.

We also conclude that the government’s use of a
defendant’s prearrest silence in its case in chief is not a
legitimate governmental practice. Unlike the use of
silence for impeachment purposes, the use of silence as
substantive evidence of guilt does not enhance the
reliability of the criminal process. Just as “every post-
arrest silence is insolubly ambiguous,” Doyle, 426 U.S. at
617, there are many reasons why a defendant may
remain silent before arrest, such as a knowledge of his
Miranda rights or a fear that his story may not be
believed. The probative value of such silence is therefore
minimal. Furthermore, the use of prearrest silence may
even subvert the truthfinding process; because it
pressures the defendant to explain himself or to suffer a
court-sanctioned inference of guilt, the likelihood of
perjury is increased. In sum, permitting the use of a
defendant’s prearrest silence as substantive evidence of
guilt would greatly undermine the policies behind the
privilege against self-incrimination while adding virtually
nothing to the reliability of the criminal process.

In the instant case, Combs clearly invoked the
privilege against self-incrimination by telling the officer
to talk to his lawyer, thus conveying his desire to remain
silent without a lawyer present. Combs never waived this
privilege and did not testify at his trial. Therefore, the
prosecutor’s comment on Combs’s prearrest silence in its

3la

case in chief and the trial court’s instruction permitting
the jury to use Combs’s silence as substantive evidence of
guilt violated Combs’s Fifth Amendment rights.

Defense counsel’s failure to object to the
unconstitutional use of Combs’s “talk to my lawyer
statement” clearly fell below an objective standard of
reasonableness. Although the contours of the privilege
against self-incrimination may sometimes be unclear,
that a defendant’s silence cannot be used as substantive
evidence against him at trial is a fundamental aspect of
the privilege. Combs’s counsel should have realized that
the use of Combs’s prearrest silence against him was at
least constitutionally suspect!° and should have lodged an
objection on that basis. Counsel’s failure to have objected
at any point is inexplicable, and we can perceive no
possible strategic reason for such failure.!! Not only did
the failure to object ensure that the jury could use
Combs’s protected silence against him, but it also
guaranteed that both the admission of the statement and

10 In fact, it appears that Combs’s counsel did realize the
problems surrounding the use of the “talk to my lawyer”
statement. Stidham testified in a deposition that the trial
court’s instruction on the issue “so astounded us that we
were shocked.” J.A. at 2928 (Stidham Dep.).

11 The State argues that the trial court’s sua sponte
instruction following Officer Ventre’s testimony “limited
any speculative damage to Combs,” so that defense
counsel’s failure to object was a sound strategic decision
designed not to draw any more attention to the matter.
Appellee’s Br. at 52. However, far from limiting the
damage caused by the admission of the statement, the
trial court’s instruction exacerbated it. The instruction
encouraged the jury to use Combs’s prearrest silence as
substantive evidence of purpose and prior calculation and
design — the key issues at trial.

32a

the trial court’s instruction would be analyzed on review
only for plain error. Counsel’s performance with respect
to this issue was constitutionally deficient under the
Strickland standard.

Even if Combs’s counsel failed to realize that use
of the “talk to my lawyer” statement as substantive
evidence of guilt might be unconstitutional, counsel still
should have objected to the statement on evidentiary
grounds. Ohio Rule of Evidence 401 provides the
definition of “relevant evidence”: “Relevant evidence’
means evidence having any tendency to make the
existence of any fact that is of consequence to the
determination of the action more probable or less
probable than it would be without the evidence.” Ohio R.
Evid. 401. Rule 403 provides:

(A) Exclusion mandatory.

Although relevant, evidence is not admissible if
its probative value is substantially outweighed by
the danger of unfair prejudice, of confusion of ‘the
issues, or of misleading the jury.

(B) Exclusion discretionary.

Although relevant, evidence may be excluded if
its probative value is substantially outweighed by
considerations of undue delay, or needless
presentation of cumulative evidence.

Ohio R. Evid. 403. The Ohio Supreme Court concluded
that the comments regarding the “talk to my lawyer”
statement were improper under these rules, stating:

Additionally, the “talk to my lawyer” evidence does
not relate to or tend to prove prior calculation and
design or purposefulness. Combs’ comment simply
meant that he was exercising his right to counsel and
nothing more. Even if this remark was initially

33a

admissible, Evid.R. 401 and 403 would otherwise
invite exclusion from evidence. No justification is
apparent for the instruction that the evidence related
to either purposefulness or prior calculation and
design. Thus, we conclude the trial court erred in
allowing this remark into evidence and in instructing
the jury to consider the remark in relation to
purposefulness and prior calculation and design.

Combs, 581 N.E.2d at 1076.

A reasonable defense attorney would have known
that the admission of the “talk to my lawyer” statement
was prejudicial to the client and would have objected on
the basis of Rule 403. Such an objection would have had
at least a likelihood of success, given the Ohio Supreme
Court’s pronouncement on this issue. A Rule 403
objection to Officer Ventre’s testimony could have
prevented the erroneous instruction as well as the
damaging use of the statement by the prosecution.

3. Defense Counsel’s Presentation of Dr.
Fisher’s Testimony

Combs next alleges ineffectiveness as a result of
counsel’s preparation of and strategy with regard to Dr.
Fisher, the defense’s only expert witness. Dr. Fisher
testified at the culpability phase regarding Combs’s drug
and alcohol abuse and his intoxication on the day of the
events; on cross-examination, Dr. Fisher expressed the
opinion that, although intoxicated, Combs acted
purposefully and intentionally. Defense counsel objected
to the prosecutor’s question, but the objection was
overruled. The exchange on cross proceeded as follows:

34a

Q. Dr. Fisher, you have rendered an opinion
that at the time, July i5th, the defendant was under
the influence, is that correct? .

A. That’s my opinion, yes.

Q. You are not however saying that the acts he
did on that particular day were not done purposely?

MR. STIDHAM: Objection.

THE COURT: Overruled.
A. I certainly am not, no.
Q. So he may have been under the influence or

your opinion based on what you were told he was
under the influence but-at the same time he was
acting intentionally and purposely when he acted as
he did on July 15th; is that correct?

MR. STIDHAM: Objection.

THE COURT: Overruled.
A. I certainly believe that he was, yes.

R. at 1183; J.A. at 2586 (Fisher Test.).

On redirect, defense counsel again attempted to
show that intoxication has an effect on one’s ability to
make judgments. Defense counsel elicited Dr. Fisher’s

testimony that “it would be my conclusion psychologically °

that [Combs’s] judgment was impaired by what was
happening to him and what he was ingesting.” R. at 1187;
J.A. at 2590 (Fisher Test.). On re-cross, however, Dr.
Fisher gave the same testimony regarding intent:

rts be

35a

Q. But, Doctor, was it so impaired that he
could not -- wasn’t so impaired that he could not form
this intent?

A. That is correct, yes.

R. at 1188; J.A. at 2591 (Fisher Test.). The prosecutor
then emphasized Dr. Fisher’s testimony regarding intent
three times in closing arguments.!2, Combs argues that
‘counsel’s failure to anticipate, suppress, prepare for,
object to, or avoid repetition of this damaging testimony
rendered his performance constitutionally deficient.

Although Combs’s counsel’s decision to present Dr.
Fisher’s testimony may be considered a strategic one, it
was a decision made without undertaking a full
investigation. Cf. Strickland, 466 U.S. at 691 (“[Clounsel
has a duty to make reasonable investigations or to make
a reasonable decision that makes particular
investigations unnecessary.”); Horton v. Zant, 941 F.2d
1449, 1462 (11th Cir. 1991) (“[O]ur case law rejects the
notion that a ‘strategic’ decision can be reasonable when

12 Combs’s counsel chose to put Dr. Fisher on the stand
again at the sentencing phase, and Dr. Fisher testified,
this time on direct, that Combs acted with intent. Dr.
Fisher stated: “Well, it is my opinion that a person with
Mr. Combs’ exact history of drug and alcohol abuse, drug
and alcohol ingestion, and treatment would still be able
to control ordinary behaviors, plan behavior in a
purposeful way, carry out behavior in a purposeful way. I
think his judgment would have been a continuated [sic] to
an extent and I think that one would see perhaps a
greater degree of impulsivity in his behavior but I think
that the basic issue of control would still be intact with
his history.” R. at 1385; J.A. at 2598 (Fisher Test.).

36a

the attorney has failed to investigate his options and
make a reasonable choice between them.”), cert. denied,
503 U.S. 952 (1992). At trial, Dr. Fisher did present
several aspects of Combs’s_ history that were
psychologically relevant, such as Combs’s state of
despondency, his difficult past, his history of severe drug
and alcohol abuse, and his stormy relationship with
Peggy Schoonover. R. at 1176-78; J.A. at 2579-81 (Fisher
Test.). Additionally, Fisher supported the contention that
Combs was under the influence when he shot the victims.
However, Stidham testified that defense counsel put
Fisher on the stand in an effort “to establish that Combs
could not act purposely and intentionally because of his
diminished capacity,” and Stidham admitted that he was
“surprised” when Fisher testified to the opposite. J.A. at
2920 (Stidham Dep.). Fisher’s opinion regarding whether
Combs lacked the requisite intent to commit the crimes
was crucial to the defense theory; defense counsel’s
failure to have questioned Fisher in this regard prior to
trial is inexcusable. Defense counsel should have known
Fisher’s opinion on this ultimate issue and should have
prepared accordingly.

Regardless of whether Combs’s counsel should
have known or instead actually knew Fisher’s opinion
regarding Combs’s intent, however, counsel’s decision to
put him on the stand was objectively unreasonable. In
Ohio, evidence of voluntary intoxication “may be
considered in determining whether an act was done
intentionally or with deliberation or premeditation.” Ohio
v. Fox, 428 N.E.2d 410, 412 (Ohio 1981). Thus,
establishing that a defendant was intoxicateu when he
committed the crime in question is not, in and of itself,
helpful; the evidence must also lead the factfinder to an
inference that intoxication deprived the defendant of the
ability to form intent. Indeed, Stidham testified that the
defense presented Fisher in order to establish that Combs

87a

could not have been acting purposefully. Fisher’s
testimony directly contradicted the sole defense theory
that Combs lacked the requisite intent to commit murder.
Although defense counsel presented substantial
testimonial evidence that Combs was in fact intoxicated
at the time of the shootings, this testimony was rendered
worthless when the defense’s own expert testified that
Combs’s intoxication did not legally excuse his crime.
Furthermore, not only did Fisher’s testimony destroy any
hope of a successful intoxication defense, but it also
helped the prosecution to establish one of the elements of
its case in chief. Quite simply, this testimony was
completely devastating to the defense, and counsel’s
decision to present it was objectively unreasonable.

4. Defense Counsel’s Overall Performance at
the Culpability Phase

We next proceed to assess defense counsel’s
overall performance throughout the culpability phase of
Combs’s trial. We acknowledge that defense counsel
presented significant evidence that Combs was
intoxicated on the day of the shootings. However, the
errors that we have identified are fundamental errors
that were severely damaging to Combs’s defense. In fact,
we believe that each of the errors that we have identified
is independently sufficient to warrant a conclusion that
Combs’s counsel’s performance was _ constitutionally
deficient. However, these errors were compounded by
other failures on the part of defense counsel.

For example, Combs’s counsel failed to investigate
and to present available physical evidence of Combs’s
intoxication on the day of the shootings. Combs argues
that, had defense counsel investigated this matter, they
would have found out from his mother that “when [she]
got the car back [from the police after their investigation]

38a

there were wine cooler bottles, and beer cans in the car”
and that “[a] cooler in the back still contained two beers.”
J.A. at 1304 (Aff. of Geraldine Combs). At trial, Officer
Zompero, who is a police criminalist, testified that he had
conducted a search of Combs’s car, but had not found any
kind of container that would be used to hold alcohol such
as a beer can, wine cooler can, or whiskey bottle. R. at
1081; J.A. at 2700 (Zompero Test.). Investigating the
presence of alcohol containers in the car would have
enabled defense counsel to present some corroborating
physical evidence of Combs’s intoxication,!® and would
also. have enabled counsel to respond to Zompero’s
allegedly inaccurate testimony.

Additionally, Combs’s counsel made no attempt to
redact portions of a videotaped testimony that may have
been prejudicial to Combs. At trial, the videotaped
testimony of Tony Liming, who was then fifteen years old,
was presented by the prosecution.'4 Liming was with
Combs when he obtained a gun on the day of the
shootings; he also testified as to Combs’s use of drugs and
alcohol on a regular basis and on the day in question. At
one point, Stidham asked Liming what his feelings
toward Combs were. Liming answered: “He is, I guess I
liked him, I mean I liked him. He like did stuff, stole stuff
from my mom and I didn’t like that.” R. at 944; J.A. at
2631 (Tony Liming Test.). Combs argues that counsel
should have sought to have this “highly prejudicial ‘other
acts” evidence redacted prior to trial pursuant to Ohio

13 Although defense counsel did present substantial
testimonial evidence of Combs’s_ intoxication, no
corroborating physical evidence was _ presented.
Therefore, the evidence of alcohol containers would not
have beer: cumulative.

14 Liming was questioned on direct by Stidham.

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Rule of Evidence 404(B),!5 and we agree. The statement is
likely excludable under Rule 404(B); it does not go to any
permissible purpose, and it might tend to leave the jury
with an overall bad impression of Combs’s character.
Considering the potential prejudice from the statement,
counsel clearly erred by failing to seek redaction.

Counsel’s overall performance is _ particularly
_shocking given the fact that this case involves the death
penalty. Strickland instructed that “[p]revailing norms of
practice as reflected in American Bar Association
standards and the like, e.g., ABA Standards for Criminal
Justice 4-1.1 to 4-8.6 (2d ed. 1980) (“The Defense
Function”), are guides to determining what is reasonable,
but they are only guides.” Strickland, 466 U.S. at 688.
ABA Standard 4-1.2(c) states that “[slince the death
penalty differs from other criminal penalties in its
finality, defense counsel in a capital case should respond
to this difference by making extraordinary efforts on
behalf of the accused.” ABA Standards for Criminal
Justice Prosecution Function and Defense Function 120
(3d ed. 1993).

15 Ohio Rule of Evidence 404(B) reads: “Evidence of other
crimes, wrongs, or acts is not admissible to prove the
character of a person in order to show that he acted in
conformity therewith. It may, however, be admissible for
other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence
of mistake or accident.” OHIO R. EvibD. 404(B) (Banks-
Baldwin 1995).

The Ohio Supreme Court has instructed that Rule
404(B) “must be construed against admissibility, and the
standard for determining admissibility of such evidence is
strict.” Ohio v. Broom, 533 N.E.2d 682, 686 syllabus para.
1 (Ohio 1988), cert. denied, 490 U.S. 1075 (1989).

40a
5. Prejudice

In order to establish prejudice, Combs “need not
show that counsel’s deficient conduct more likely than not
altered the outcome in the case.” Strickland, 466 U.S. at
693. He must instead show that there is a reasonable
probability that, but for counsel’s errors, the factfinder
would have had a reasonable doubt about his guilt.16 See
id. at 695. The defense theory was that Combs’s
intoxication rendered him unable to act with purpose or
prior calculation and design, and yet defense counsel
made two crucial errors that substantially undercut this
theory. We conclude that each of these errors is
sufficiently prejudicial to satisfy the Strickland standard.

Presentation of Dr. Fisher’s testimony is perhaps
the most devastating error. The testimony of the sole
defense expert that Combs, although intoxicated,
nevertheless acted with purpose and intent was obviously
damaging to the defense. Furthermore, Dr. Fisher’s
testimony provided the State with its most powerful
evidence of purpose. R. at 1226-27; J.A. at 2744-45
(State’s Closing Argument at Culpability Phase) (naming
Dr. Fisher’s testimony first in connection with the
purpose element).!7

Defense counsel’s failure to object to the use of
Combs’s “talk to my lawyer” statement was similarly

16 Guilt means guilt of the underlying offenses; Combs
must therefore show not that a factfinder would have had
a reasonable doubt about his culpability for the killings,
but rather that a factfinder would have had a reasonable
doubt about his purpose or prior calculation and design.

17 As Combs points out, the district court acknowledged
that Fisher’s testimony was prejudicial. J.A. at 132 (Dist.
Ct. Op.).

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damaging. Just as Dr. Fisher’s testimony partly relieved
the State of its burden of proof on an element of the
offense, the State strategically used Combs’s protected
silence as evidence that Combs was acting rationally, and
thus with purpose and prior calculation, after the
shootings; the trial court’s instruction encouraged the
jury to make that inference.

Of course, the State presented other evidence of
Combs’s purpose and prior calculation and design. As the
Ohio Supreme Court pointed out:

Combs spent a considerable part of the afternoon
of the murders searching for a shotgun. He asked
two people for a shotgun, and eventually drove
over eighty miles before returning to Cincinnati
with a shotgun. The evidence indicates he stole the
shotgun he used. After he drove back to
Cincinnati, he confronted Joan and Peggy and
initiated a car chase over several blocks,
eventually cornering them at the Holiday Park
Tower office building. He deliberately knocked out
a window in their car and fired a shotgun into
each woman’s head at close range. Those facts
alone establish both purposefulness and prior
calculation and design.

Combs, 581 N.E.2d at 1076. However, Combs offered an
alternative reason for his search for a gun; rather than
spending the afternoon searching for the means to
commit two murders, Combs suggested that he was
searching for a means to kill himself. There was evidence
that Combs was contemplating suicide at the time. One
witness testified that Combs sounded suicidal just days
before the incident, and another witness testified that
just before the shootings, Combs said that he was going
to be with his father, who was dead. R. at 1192; J.A. at

42a

2612 (Charles Hogue Test.); R. at 942 (Tony Liming
Test.). Combs also argued that the car chase just prior to
the shootings was not an effort to hunt the two women
down, but rather an effort to talk with Peggy Schoonover
after other channels of communication had been cut off.

The two critical errors by defense counsel
bolstered the State’s case and made Combs’s explanation
of the events seem less likely. Without Fisher’s testimony
and without the use of Combs’s “talk to my lawyer”
statement, the State’s evidence of purpose and prior
calculation and design would have been much weaker.
We therefore conclude that absent defense counsel’s
errors, there is a reasonable probability that the jury
would have concluded that the State did not meet its
burden of proving the two contested elements, and thus
that the jury would have had a reasonable doubt about
Combs’s guilt.

Federal habeas relief is available to petitioners in
state confinement as a result of a proceeding that was
rendered fundamentally unfair by a violation of the
Constitution, laws, or treaties of the United States. See
Norris, 146 F.3d at 323 (citing Estelle v. McGuire, 502
U.S. 62, 68 (1991)). The Supreme Court has explained
that “[a]n ineffectiveness claim, .. . as our articulation of
the standards that govern decision of such claims makes
clear, is an attack on the fundamental fairness of the
proceeding whose result is challenged.” Strickland, 466
U.S. at 697. Combs has satisfied both prongs of the
Strickland test, and in so doing he has demonstrated that
his “counsel’s errors were so serious as to deprive [him] of
a fair trial, a trial whose result is reliable.” Strickland,

43a

466 U.S. at 687. He is therefore entitled to a conditional
grant of habeas relief.18

C. Trial Errors Identified by the Ohio Supreme
Court

In its review of Combs’s conviction and sentence,
the Ohio Supreme Court found that several trial court
errors had been committed, although that court
determined that these errors did not warrant reversal.
Because Combs will in all probability be retried for these
killings, we will now briefly discuss the errors identified
by the state court so that these errors will not be
repeated.

1. Improper Penalty Phase Jury Instruction

At the conclusion of Combs’s sentencing hearing,
the trial court instructed the jury on all seven statutory
mitigating factors, rather than just the two raised by
defense counsel at the hearing. The instruction read:

What are mitigating factors? The statute
provides certain mitigating factors, some of which
you may not apply to this hearing. Mitigating
factors are factors that while they do not justify an
excuse or justify or excuse the crime of aggravated
murder, nevertheless may be considered by you as
extenuating, lessening, weakening, excusing to
some extent or reducing the degree of the
defendant’s blame. You are to weigh as mitigating
factors as you may deem applicable in this case
the nature and circumstances of the offense, the

'8 No harmless error analysis is necessary for claims of
ineffective assistance of counsel. See Kyles v. Whitley, 514
U.S. 419, 435-36 (1995).

44a

history, background and character of the
defendant, and the following factors which are
mentioned by way of illustration and not for the
purpose of limiting your consideration.

These seven mitigating factors are defined
by statute as follows; number 1, whether the
victim of the offense induced or facilitated it.

Number 2, whether it is unlikely that the
offense would have been committed but for the fact
the defendant was under duress, coercion, or
strong provocation.

Number 3, whether at the time of
committing the offense the defendant because of a
mental disease or defect lacked substantial
capacity to appreciate the criminality of his
conduct or to conform his conduct to the
requirements of law.

Number 4, the youth of the defendant.

Number 5, the defendant’s lack of
significant history of prior criminal convictions
and delinquency adjudications.

Number 6, if the defendant was [a]
participant in the offense but not the principal
offender, the degree of the defendant’s
participation in the offense and the degree of the ;
defendant’s participation in the acts which led to
the death of the victim.

And number 7, any other factors tiat are
relevant to the issue of whether the defendant
should be sentenced to death.

45a

Keep in mind that all of these specific
factors may not be present in this case nor need
they all be present before you can find that the
aggravating circumstance is not sufficient beyond
a reasonable doubt to outweigh the factors in
mitigation of the sentence of death. Likewise the
existence of any of the mitigating factors I have
described to you does not preclude or prevent the
imposition of a sentence of death if you find that
the aggravating circumstance still does outweigh
the mitigating factors by proof beyond a
reasonable doubt.

R. at 1434-36; J.A. at 2804-06.

This instruction was clearly improper under Ohio
law. In Ohio v. DePew, 528 N.E.2d 542 (Ohio 1988), cert.
denied, 489 U.S. 1042 (1989), the defendant contended
that an instruction on all mitigating factors, including
ones inapplicable to the case at hand, impermissibly
focuses the jury's attention on the absence of mitigating
factors. See id. at 557. The court held that “{ilf the
defendant chooses to refrain from raising some of or all of
the factors available to him, those factors not raised may
not be referred to or commented upon by the trial court or
the prosecution.” Id.; see also Ohio v. Bey, 709 N.E.2d
484, 495 (Ohio), cert. denied, --- U.S. ---, 120 S. Ct. 587
(1999); Ohio v. Keith, 684 N.E.2d 47, 65 (Ohio 1997), cert.
denied, 523 U.S. 1063 (1998); Ohio v. Garner, 656 N.E.2d
623, 631 (Ohio 1995), cert. denied, 517 U.S. 1147 (1996);
Ohio v. Grant, 620 N.E.2d 50, 68 (Ohio 1993), cert.
denied, 513 U.S. 836 (1994). On direct review of Combs’s
conviction, the Ohio Supreme Court cited DePew and
explained that the reference to statutory mitigating
factors not raised by the evidence was erroneous. See
Combs, 581 N.E.2d at 1079. The court found, however,
that the error did not require reversal because defense

46a

counsel induced the error by proposing the improper
instruction. See id.

2. Improper Characterization of the Nature
and Circumstances of the Offense as a
Nonstatutory Aggravating Circumstance

The Ohio Supreme Court also concluded that the
State erred by focusing its closing remarks on the victims’
mental anguish prior to death, thereby converting the
nature and circumstances of the offense into a
nonstatutory aggravating circumstance. Under Ohio law,
although prosecutors in the penalty phase of a capital
case may properly refer to the nature and circumstances
of the offense, it is improper to characterize that evidence
as a nonstatutory aggravating circumstance. See, e.g.,
Ohio v. Gumm, 653 N.E.2d 253, 262-63 (Ohio 1995), cert.
denied, 516 U.S. 1177 (1996); Ohio v. Landrum, 559
N.E.2d 710, 719 (Ohio 1990), ceri. denied, 498 U.S. 1127
(1991); Ohio v. Davis, 528 N.E.2d 925, 931 (Ohio 1988),
cert. denied, 488 U.S. 1034 (1989).

It is undisputed that the only aggravating
circumstance listed in § 2929.04 for which Combs was
convicted is that “the offense at bar was part of a course
of conduct involving the purposeful killing of or attempt
to kill two or more persons by the offender.” Ohio Rev.
Code Ann. § 2929.04(A)(5) (Banks-Baldwin 1997). At the
sentencing hearing, however, the State made the
following closing argument:

Can you imagine the terror of that? A gun right to
your head, was she [Joan] thinking of her
husband, who was going to take care of him? Was
she thinking about her childhood? Was she
thinking about her daughter take me but spare
Peggy? That’s the aggravating circumstance, what

47a

she went through. Or maybe she started to pray,
we don’t know. He won’t tell us.

... What did she [Peggy] think when this now
hot steal [sic] pressed against the back of her
head, she knew she too wasn’t going to be given
any mercy. What went through her mind, what
was she thinking? Was she thinking of little Joey,
who's going to take care of him, grandma ‘- gone,
I’m going to be gone, who’s going to raise my little
boy. And then came the pull of that second trigger,
and she’s’ gone. That’s. the aggravating
circumstance, that’s what you put in your one
hand and even if you do find some mitigation and
all that that the defendant told you, weigh that.

... What weighs more, these two totally good
lives or the defendant’s life in the fast lane?

R. at 1404-06; J.A. at 2783-85.

The Ohio Supreme Court on direct review of
Combs’s case concluded that these prosecutorial
comments were erroneous as a matter of state law. See
Combs, 581 N.E.2d at 1077. The court explained:

After reading his entire argument, we
conclude that the prosecutor did err. The
prosecutor did improperly suggest that how the
victims were killed and the suffering and mental
anguish the victims endured was an aggravating
circumstance. Improperly injecting nonstatutory
aggravating circumstances is error. By continually

48a

referring to what the victims were thinking, the
prosecutor engaged in gross speculation.

Id. (citation omitted). Although the Ohio Supreme Court
found that these comments did not warrant reversal, the
State should avoid such speculation on retrial.

iil. CONCLUSION

Based on the preceding analysis, we conclude that
Combs’s_ trial counsel rendered constitutionally
ineffective assistance at the culpability phase of Combs’s
trial. We therefore REVERSE the district court’s
judgment and REMAND the case to the district court
with instructions to issue a writ of habeas corpus unless
the State of Ohio retries Combs within a reasonable
period of time.

CONCURRING IN PART,
DISSENTING IN PART

ALAN E. NORRIS, Circuit Judge, concurring in
part and dissenting in part.

I concur with the majority’s decision in Part II.B.3
and agree that a writ of habeas corpus should be issued
on this ground. Because petitioner did not argue that .
introduction of his “talk to my lawyer” statement viclated
his right to remain silent, I respectfully dissent from Part
II.B.2 of the majority’s opinion.

49a
APPENDIX B

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 97-4369
RONALD DEAN COMBS, Petitioner-Appellant,

v.

RALPH COYLE, Respondent-Appellee.

On Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 95-00733--Sandra S. Beckwith, District Judge.
[Filed: February 23, 2000]

Before: NORRIS, DAUGHTREY, and MOORE, Circuit
Judges.

JUDGMENT

THIS CAUSE was heard on the record from the
district court and was argued by counsel.

IN CONSIDERATION WHEREOF, it is
ORDERED that the judgment of the district court is
REVERSED and the case is REMANDED for further
proceedings in accordance with the opinion of this court.

ENTERED BY ORDER OF
THE COURT

ls/_ Leonard Green
Leonard Green, Clerk

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APPENDIX C

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT

No. 97-4369
RONALD DEAN COMBS, Petitioner-Appellant,

Vv.

RALPH COYLE, Respondent-Appellee.

[Filed: March 28, 2000]

Before: MERRITT, JONES, and NORRIS, Circuit
Judges.

ORDER

Upon consideration of the petition for rehearing
filed by the appellee,

It is ORDERED that the petition for rehearing be,
and it is hereby is, DENIED. The panel members each
adhere to their opinions. |

ENTERED BY ORDER OF
THE COURT

/s/ Leonard Green
Leonard Green, Clerk

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APPENDIX D

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION

Case No. C-1-95-733
RONALD DEAN COMBS, Petitioner

Vv.

CARL ANDERSON, WARDEN, Respondent.
Filed: October 23, 1997

OPINION and ORDER

Petitioner Ronald Dean Combs brings this action
under 28 U.S.C. §2254 for a writ of habes corpus. This
matter is before the Court on the petition, appendix to the
petition, return of writ, appendix to the return of writ,
and traverse.

7 History

On February 17, 1988, a Hamilton County, Ohio
jury convicted Petitioner Combs of the July 15, 1987,
aggravated murders of Peggy Schoonover and her mother,
Joan Schoonover. Peggy Schoonover was the mother of
Petitioner’s son. The Ohio Supreme Court has
summarized the facts surrounding the murders as follows:

Around 4:00 p.m. on July 15, 1987, Peggy
Schoonover and her mother, Joan Schoonover, left
work near Fourth and Sycamore Streets in
downtown Cincinnati. Father Robert Horine, an

52a

Episcopal priest and co-worker, saw a red car
speed through the intersection and come to a
screeching halt, just missing him.

Peggy told Father Horine she knew the driver of
the red car and that she was ready for him,
showing Father Horine a can of mace. Joan and
Peggy then got into Joan’s blue-gray Cougar and
drove away.

Moments later, at an exit ramp near West Eighth
Street and Linn Street, Robert Scalf saw a “brown
Nova” blocking a gray Cougar. The “Nova” then
drove backwards down an exit ramp, turned
completely around, and chased the Cougar.

Shortly thereafter, at Eighth and Linn, John
Hughes saw a Cougar and a brown car, tires
screeching, pull into the Holiday Park Tower
parking lot. The brown car blocked the Cougar
and later pulled alongside. The driver of the
Cougar, a woman, was hollering, waving her
hands, and honking the horn. Hughes saw a man
get out of the brown car and hit the Cougar’s
passenger window three or four times with a
shotgun, knocking out the glass. This man then
put the shotgun up to his shoulder and fired twice
into the Cougar. Thereafter, the man got back into
his car, and Hughes saw a deputy sheriff,
shouting, run up behind the Cougar.

Deputy Sheriff James Neil jogged over to where
two cars had raced into Holiday Park Tower
parking lot. When he arrived, he saw Ronald Dean
Combs, defendant-appellant, holding a long gun,
fire two shots through the passenger window of a
Cougar. Combs then returned to his car and got

53a

in, but left the door open. Neil shouted five or six
times to Combs to “freeze, halt, stop.” Combs
responded, “You are going to have to shoot me or
you are going to have to kill me.”

Combs made “an aggressive move,” and Neil shot
at Combs twice. Combs, still holding the shotgun,
got out of his car and faced Neil. Neil shot at
Combs four more times, then retreated to reload.

Before Neil returned, Cincinnati police officer
Douglas Ventre arrived and found Combs,
wounded, sitting on the ground, but holding a
shotgun. He ordered Combs to drop the shotgun,
but Combs raised the shotgun towards Ventre,
then “ran out of gas” and lowered the shotgun into
his lap. Ventre ran to Combs, grabbed the
shotgun, pulled it away, and asked Combs what
happened. Combs replied, “the guy shot me.”
Later, as Combs was placed into an ambulance,
Ventre asked again what happened. Combs “told
me to talk to his lawyer.”

Medical personnel and Ventre found three live
shotgun shells taped to Combs’ body. Combs was
abusive, nasty, and uncooperative with responding
medical personnel, but he did not appear to be
under the influence of alcohol. His eyes looked
clear, pupils were reactive, and his_ speech
appeared normai.

Combs underwent extensive treatment for his
gunshot wounds. His right arm was amputated
above the elbow, his left was partly paralyzed.
Early the next morning, after an operation, Combs
asked a nurse what had happened to “the two
bitches that I shot.” When Leigh Ann Wright, a

54a

recovery room nurse, told Combs, “they’re dead,”
Combs responded, “serves the Goddamned whores
right.” Peggy had been Combs’ girlfriend.

Police found Joan and Peggy dead from shotgun
wounds to the right side of their heads. At trial,
Combs did not contest that he fired the two fatal
shotgun blasts.

To support prior calculation and design, the
prosecutor presented evidence of Combs’ efforts to
obtain a shotgun on the day of the murders.
Combs asked to borrow a shotgun from Anthony
Liming, his fifteen year-old cousin. Tony had
none, so they both drove to Mt. Orab, over forty
miles away, and Combs asked Tim Liming, Tony’s
uncle, to lend him a shotgun. Tim refused, and
ultimately Combs used a shotgun stolen from the
house or Richard Liming, Tony’s father. When
Combs got the shotgun, at about 3:00 p.m., he
drove at high speed back to Cincinnati.

At trial, Combs argued he was too intoxicated from
alcohol, marijuana, and pills to formulate the
intention to kill Joan and Peggy or to plan and
calculate their deaths.

Michael Eversoll, Combs’ cousin, testified that on
July 13, Combs started drinking heavily, smoking
marijuana, and taking pills, and continued to do so .
through noon, July 15. Two witnesses, Tony and
Tim Liming, saw Combs drink, smoke marijuana,
or take pills on the afternoon of July 15. Tim
Liming described Combs’ eyes as glassy and his
face as waxy. Combs’ sister, who saw Combs
around noon on July 15, and a neighbor who saw

55a

Combs between 1:00 and 2:00 p.m., thought he was
definitely under the influence of drugs and alcohol.

Dr. Roger Fisher, a clinical psychologist, found
that Combs had a history of severe drug addiction.
Dr. Fisher believed that Combs’ judgment was
substantially impaired and that he was under the
influence of drugs and alcohol when he killed Joan
and Peggy. However, Fisher agreed that Combs
“was acting intentionally and purposefully.”

State v. Combs, 62 Ohio St.3d 278, 278-80 (1991).

Following a hearing on February 22, 1988, the
trial jury recommended a sentence of death. On March 1,
1988, the trial court filed an opinion adopting the jury’s
recommendation and sentencing Petitioner Combs to
death for each of the counts of aggravated murder.

Il. Procedural History

Petitioner has been unsuccessful in his efforts to
have his convictions overturned in the Ohio courts. An
outline of the procedural history in the Ohio courts
follows.

Petitioner Combs appealed his aggravated murder
convictions and his death sentence to the Court of
Appeals for Hamilton County. He assigned the following
errors:

First Assignment of Error. The trial court committed
plain error in incorrectly instructing the jury that it was
permitted to consider the fact that Appellant advised
police to talk to his lawyer as evidence of the existence of
the essential elements of purpose and prior calculation

56a

and design, in violation of Appellant’s rights under the
Fifth, Sixth, and Fourteenth Amendments to the
Constitution of the United States, and of Art. I Sec. 10 of
the Ohio Constitution;

Second Assignment of Error. The Appellant was
denied the effective assistance of counsel by the failure of
trial counsel to object to the instruction of the trial court
to the jury to the effect that the assertion of
Constitutional rights could be considered as evidence of
the existence of essential elements of the offense for which
the accused was on trial, in violation of his right to
counsel under the Sixth and Fourteenth Amendments to
the Constitution of the United States, and Art. 1 Sec. 10
of the Ohio Constitution:

1. The fact that a defendant in a capital criminal case
advises police to talk to his lawyer may not be
considered by a jury for any purpose, and an
instruction that the jury may consider such a
statement as evidence-of the essential elements of
purpose and/or prior calculation and design is
gross constitutional error and requires reversal;

2. The instruction that the jury is permitted to use a
reference by a defendant to an attorney when
questioned by a police officer as evidence of the
existence of essential elements of the offense is
plain error, and may be noticed on appeal even
absent a defense objection;

3. The failure of defense counsel to object to an
instruction of the trial court which advises the jury
that the assertion of constitutional rights may be
considered evidence of the existence of essential
elements of the offense, constitutes a denial of the
right to the effective assistance of counsel secured

57a

to the accused by the Ohio and United States
Constitutions;

Third Assignment of Error. The trial court erred to
the prejudice of Appellant in establishing a date for the
execution of the sentence of death before expiration of the
consecutive three-year sentences imposed on the two
firearm specifications under R.C. 2929.71:

1. Three-year sentences for possession of a firearm
during the commission of felonies must be served
prior to the serving of the sentence for the
underlying felonies, and where a defendant is
sentenced to death, and to two consecutive three
year terms of imprisonment for the use or carrying
of a firearm during the commission of the principal
offenses, the two three year firearm sentences
must be served prior to execution of the death
sentence, and it is error to set a date for execution
of the death sentence prior to the expiration of the
six years imposed upon the firearm specifications;

Fourth Assignment of Error. The trial court
committed plain error in instructing the jury at the
penalty phase of the proceedings as to each and every
statutory mitigating factor, whether or not it applied to
the facts and circumstances of the case;

Fifth Assignment of Error. The trial court committed
plain error to the prejudice of Appellant by permitting the
prosecution to convert the absence of certain statutory
mitigating factors into nonstatutory aggravating factors
during penalty phase argument, which prejudiced
Appellant’s right to reliability in the determination of
whether he should be executed.

58a

a It is the defendant in a capital case who has the
right to present and argue the mitigating factors.
If he does not, no comment on any factors not
raised by him is permissible; the better practice is
for the trial court not to refer in instructions to
statutory mitigating factors not raised by the
defendant; ;

Sixth Assignment of Error. The trial court committed
plain error, to the prejudice of Defendant-Appellant by
permitting the prosecutor to argue, at the penalty phase,
that the aggravating circumstance was the terror and
horror felt by the victims, rather than-a course of conduct
involving the purposeful killing of or attempt to kill two or
more persons by the offender, and other prejudicial
arguments, in violation of Appellant’s right to due process
of law and to be protected against cruel and unusual
punishment, secured to him by the Eighth and
Fourteenth Amendments to the Constitution of the
United States, and by Art.1, Sections 9 and 10 of the Ohio
Constitution;

Seventh Assignment of Error. The Defendant-
Appellant was denied the effective assistance of counsel
by the failure of his counsel to object to the improper
argument of the prosecution at the penalty phase of the
proceedings, constituting a violation of the Sixth, Eighth
and Fourteenth Amendments to the Constitution of the
United States and the concomitant provisions of the Ohio
Constitution:

1. Any egregious error in the penalty phase of a
death penalty proceeding, including prosecutorial
misconduct, will be cause to vacate the sentence of
death with a subsequent remand to the trial court
for a new sentencing procedure pursuant to R.C.
2929.06;

59a

2. Only the aggravating factor for which the accused
has been indicted may support a decision for
death; resort to nonstatutory aggravating factors
requires reversal of the death sentence;

3. Arguments for the death sentence which focus on
the nature and circumstances of the offense, i.e.,
the gruesomeness and heinousness of the murders,
and which focus upon the suffering experienced by
the victims and the victims’ families constitute
prejudicial, reversible, constitutional _ error,
requiring reversal of the death sentence obtained
thereby;

4. Where defense counsel in a capital case fail to
object to improper argument of the prosecutor
during penalty phase argument, the accused has
been deprived of the effective assistance of counsel,
to which he has a right pursuant to the Sixth and
Fourteenth Amendments to the United States
Constitution, and Art. I. Sec. 10 of the Ohio
Constitution;

5. Where the state secures a death sentence by use of
grossly prejudicial, unconstitutional penalty-phase
argument, and no_ defense objection was
interposed, the error is plain error, and will be
noted on review, and reversal will result;

Eighth Assignment of Error. The trial court erred to
the prejudice of Appellant in imposing a death sentence
after a process which unconstitutionally narrowed
statutory mitigating factors out of existence, thus
preventing the meaningful weighing of such factors in the
sentencing decision, and in considering the nature and
circumstances of the case as aggravating, in violation of

60a

Appellant’s rights under the Eighth and Fourteenth
Amendments to the Constitution of the United States and
under the Ohio Constitution:

1. One on trial for his life is entitled to meaningful
consideration of relevant mitigating factors, and
where the trial court rejects or improperly weighs
such factors because they do not constitute a
defense to the crime (which would render the
accused not guilty), then that right has been
denied, to his prejudice;

2. The nature and circumstances of the offense are
not a statutory aggravating circumstance, and
where the trial court finds that the accused should
die, because of the manner in which he has
committed the crime, rather than because the
statutory aggravating factor outweighs mitigation
beyond a reasonable doubt, then the resulting
death sentence must be vacated;

Ninth Assignment of Error. The trial court
committed prejudicial error in excluding from the
evidence the hospital record concerning the blood test
administered by the treating hospital, which revealed
the ingestion of alcohol and drugs and which tended to
support Appellant’s intoxication defense, in violation of
Appellant’s rights under the Eighth and Fourteenth
Amendments to the United States Constitution and the
concomitant provisions of the Ohio Constitution:

1. Properly authenticated hospital records of the
results of blood tests which are administered for
the purpose of diagnosis or treatment are
admissible, and where the results of such tests
support the intoxication defense of a capital
defendant, the refusal of the trial court to admit

6la

such test results is grossly and prejudicially
erroneous, contrary to the Rules of Evidence, and a
violation of due process under both the Ohio and
federal Constitutions;

2. The erroneous exclusion by a trial court of
evidence of a mitigating factor is prejudicial to a
capital defendant, and the imposition of the death
sentence thereafter constitutes a violation of the
offender’s constitutional privilege against cruel
and unusual punishment;

Tenth Assignment of Error. The trial court committed
plain error in permitting state witness Leigh Ann Wright
to testify to certain statements purportedly made by
Appellant, denying Appellant the right to due process of
law under the Fourteenth Amendment to the Constitution
of the United States, and Art. I, Sec. 16 of the Ohio
Constitution;

Eleventh Assignment of Error. Appellant was denied
the effective assistance of counsel due to the failure of
trial counsel] to file a motion to suppress his statement to
nurse Wright as an involuntary statement:

1. The admission of an involuntary confession, in the
absence of a defense motion to suppress that
confession, is plain error, requiring reversal of a
resulting conviction;

2. A criminal defendant has been denied his
constitutional right to the effective assistance of
counsel where defense counsel fail to file a motion
to suppress an involuntary confession which
arguably could resolve one or more issues in the
case, in violation of his rights under the Sixth and
Fourteenth Amendments to the Constitution of the

62a

United States, and Art. I, Sec. 10 of the Ohio
Constitution; :

Twelfth Assignment of Error. The death sentence
visited upon Appellant violates the Eighth and
Fourteenth Amendments in that it is disproportionately
severe when compared to sentences in similar cases:

1. The Eighth and Fourteenth Amendments to the
Constitution of the United States prohibit
sentences that are disproportionately severe in
relation to the crime committed, sentences visited
upon others for the same crime in the same and
other jurisdictions;

Thirteenth Assignment of Error. Appellant’s sentence
offends the equal protection clause of the Fourteenth
Amendment in that in Hamilton County the death
penalty is reserved, almost exclusively, for those who are
convicted of the aggravated murder of white people:

i. Even a_ constitutional law may _ be
unconstitutionally applied, and where
whether one is sentenced to death depends
upon the race of his victim, and those who
kill whites are sentenced to death almost
exclusively, and those who kill blacks are
almost uniformly spared, then the
guarantee to the equal protection of the
laws has been violated by the sentencing of
any offender to death;

Fourteenth Assignment of Error. The trial court
erred to the prejudice of Appellant in imposing the death
sentence, for the Ohio death penalty statutes are
unconstitutional, violating the Eight Amendment
proscription of cruel and unusual punishments, the

—_——

63a

Fourteenth Amendment guarantees to due process of law
and the equal protection of the laws, and also violating
the concomitant provisions of the Ohio Constitution:

(A) The death penalty is so totally without penological
justification that it results in the gratuitous
infliction of suffering, and, consequently, there is
no rational state interest served by the ultimate
sanction;

(B) Both locally, statewide and nationally, the death
penalty is inflicted disproportionately upon those
who kill whites as opposed to those who kill blacks,
and even within Hamilton County, the death
penalty is selectively imposed, rendering the
penalty as applied in Hamilton County arbitrary
and capricious on the one hand, and the product of
racial discrimination on the other;

(C) The use of the same operative fact to first elevate
what would be “ordinary” murder to aggravated
murder, and then to capital, death-eligible
aggravated murder permits the state (1) to obtain
a death sentence upon less proof in a felony
murder case than in a case involving prior
calculation and design, although both crimes are
ostensibly equally culpable under the Revised
Code, and (2) fails to narrow the capital class to
the murderers for whom the death penalty is
constitutionally appropriate;

(D) The requirement that a jury must recommend
death upon proof beyond a reasonable doubt that
the aggravating circumstances outweigh only to
the slightest degree the mitigating circumstances
renders the Ohio capital statutes quasi-mandatory
and permits the execution of an offender even

64a

though the mitigating evidence falls just short of
equipoise with the aggravating factors, with the
result that the risk of putting someone to death
when it is practically as likely as not that he
deserves to live renders the Ohio capital process
arbitrary and capricious, and, in the absence in of
a requirement that, before death may be imposed,
aggravating factors must substantially outweigh
mitigating factors, unconstitutional;

(E) The Ohio capital statutes are constitutionally
infirm in that they do not permit the extension of
mercy by the jury even though aggravating factors
may only slightly outweigh mitig: ing factors:

1. The Ohio capital statutes are uncon-
stitutional because they require the death
sentence and fail to permit the jury to
recommend mercy even’ though the
aggravating factors only margin-ally
outweigh the mitigating factors, and in
spite of the fact that there may be factors
strongly suggesting the appropriateness of
a penalty less than death in a given case;

(F) The provisions of Crim. R. 11(C\(3) permitting a
trial court to dismiss specifications upon a guilty
plea only under the nebulous and undefined
concept “in the interests of justice”(1) needlessly
encourages guilty pleas and the concomitant
waiver of the right to jury, to compulsory process
and to confrontation and (2) reintroduces the
possibility that the death penalty will be imposed
arbitrarily and capriciously:

a The provisions of Crim. R. 11(C\(3)
needlessly encourage the entry of guilty

(G)

The

65a

pleas and the concomitant waivers of the
right to jury trial, confrontation and
compulsory process, and render the death
penalty statutes unconstitutional;

The possibility that capitally-indicted
capital defendants can avoid the death
penalty by pleading guilty where the trial
judge dismisses the capitally-necessary
specifications on the undefined standard “in
the interests of justice” reintroduces the
element of arbitrariness and caprice into
the Ohio capital sentencing scheme and
renders the statutes unconstitutional;

Ohio. capital sentencing scheme is

unconstitutional because it provides no standards
for sentencing or review at several significant
stages of the process and consequently death
sentences are imposed, and reviewed, without
sufficient statutory guidance to juries, trial courts
and reviewing courts to prevent the unconstitu-
tional arbitrary and capricious infliction of the
death penalty:

a

To be constitutional, a state death penalty
scheme must provide standards to guide the
sentencer in the reasonable exercise of the
awesome power entrusted to it, in order to
avoid the influence of arbitrariness and
caprice in the sentencing decision, and
where the statutes provide no meaningful
standards to guide the sentencer, and
reviewing courts, no death sentence
imposed under such a_ system may
constitutionally stand;

66a

2. There are no standards set forth for the
guidance of juries, trial judges, or reviewing
courts in the weighing of aggravating and
mitigating factors sufficient to ensure that
any given death sentence has _ been
constitutionally imposed;

Fifteenth Assignment of Error. The trial court erred
in imposing the death sentence because the jury that
convicted Appellant and recommended the death sentence
was improperly constituted in violation of Appellant’s
right to a fair and impartial jury under the Sixth and
Fourteenth Amendments to the Constitution of the
Untied States, and under the Bill of Rights to the Ohio
Constitution, in addition to constituting a violation of
Ohio statutory law:

1 A death sentence recommended by a jury from
service on which one or more veniremen were
excused because of their views concerning capital
punishment cannot stand unless it affirmatively
appears on the record that each such venireman
excused for cause unequivocally indicates that his
scruples against capital punishment will
automatically prevent him from recommending the
death penalty and/or that such views will render
him unable to return a verdict of guilty no matter
what the evidence, and that he is prevented by his
scruples from following the instructions of the
court and considering fairly the imposition of the
death sentence;

2. Even the unconstitutional exclusion from a jury of
but one venireman contrary to law mandates
reversal of the death sentence rendered by that
jury, and the error is not cured by the totality of
the circumstances, the failure of defense counsel to

67a

object to the improper exclusion, the failure to
exercise peremptories, nor the opportunity of the’
trial judge to assess the credibility of the
venireman;

Sixteenth Assignment of Error. The trial court erred
in instructing the jury at the penalty trial that it could
not be governed by considerations of sympathy:

1. The feelings of sympathy, pity and mercy which
are felt by decent persons everywhere are properly
considered as a mitigating factor at the penalty
phase of a capital murder trial, and an instruction
that the jury is not to be bound by feelings of
sympathy constitutes error, and plain error at
that.

Exhibits H and N to Return of Writ.

On September 19, 1990, the Court of Appeals for
Hamilton County issued a Decision affirming Petitioner
Combs’ convictions for aggravated murder and the death
sentence. That court considered the First, Third, Fourth,
Fifth, Eighth, Ninth, Twelfth, Thirteenth, Fourteenth,
and Fifteenth Assignments of Error, as set forth above, on
their merits and concluded that each was without merit.
The court considered the Sixth and Tenth Assignments of
Error pursuant to a plain error analysis, inasmuch as the
asserted errors had not been subjects of objections at trial,
and concluded that the trial court did not commit plain
error. The Ohio appellate court concluded that the
Sixteenth Assignment of Error had been waived. Finally,
that court overruled the Second, Seventh, and Eleventh
Assignments of Error, pursuant to each of which
Petitioner Combs asserted ineffectiveness of trial counsel,
on the ground that none of the claims of error that formed
the basis of the ineffectiveness claims was found to be
meritorious.

68a

Petitioner Combs appealed the decision of the
Hamilton County Court of Appeals to the Ohio Supreme
Court. There, Petitioner asserted the following 15
propositions of law:

Proposition of Law Number 1. The fact that a
defendant in a capital criminal case advises police
to talk to his lawyer may not be considered by a
jury for any purpose, and an instruction in a
capital case that the jury may consider such a
statement as evidence of the essential elements of
purpose and/or prior calculation and design is
gross constitutional error in violation of rights of
the accused under the Fifth, Sixth, Eighth and
Fourteenth Amendments of the United States
Constitution, and Art. I Secs. 9, 10 and 16 of the
Ohio Constitution and requires reversal of the
conviction and resulting death sentence;

Proposition of Law Number 2. Any egregious error
in the penalty phase of a death penalty proceeding,
including prosecutorial misconduct, will be cause
to vacate the sentence of death with a subsequent
remand to the trial court for a new sentencing
procedure pursuant to R.C. 2929.06;

Proposition of Law Number 3. The Fourteenth
Amendment to the Constitution of the United
States, and the Ohio Constitution, Art. I Secs. 9, 10_
and 16, guarantee to every person charged with a
capital offense the right to have his jury
sentencing verdict made after consideration only of
lawful aggravating circumstances, and
uninfluenced by improperly admitted and argued
victim impact evidence, and improper appeals to
passion and prejudice, and no death sentence may

69a

be affirmed unless the prosecution proves beyond a
reasonable doubt that penalty trial error did not
contribute to the death verdict;

Proposition of Law Number 4. It is the defendant
in a capital case who has the right to present and
argue the mitigating factors. If he does not do so,
no comment on any factors not raised by him is
permissible; the better practice is for the trial court
not to refer in instructions to statutory mitigating
factors not raised by the defendant;

Proposition of Law Number _ 5. Three-year
sentences for possession of a firearm during the
commission of felonies must be served prior to the
serving of the sentence for the underlying felonies,
and where a defendant is sentenced to death, and
to two consecutive three year terms of
imprisonment for the use or carrying of a firearm
during the commission of the principal offenses,
the two three year firearm sentences must. be
served prior to execution of the death sentence,
and it is error to set a date for execution of the
death sentence prior to the expiration of the six
years imposed on. the firearm specifications;

Proposition of Law Number 6. One on trial for his
life is entitled to meaningful consideration of
relevant mitigating factors, and where the trial
court rejects or improperly weighs such factors
because they do not constitute a defense to the
crime (which would render the accused not szuilty),
then that right has been denied, to his prejudice;

Proposition of Law Number 7. The feelings of
sympathy, pity and mercy which are felt by decent

persons everywhere are properly considered as a

70a

mitigating factor at the penalty phase of a capital
murder trial, and an instruction that the jury is
not to be bound by feelings of sympathy constitutes
plain error;

Proposition of Law Number 8. Properly
authenticated hospital records of the results of
blood tests which are administered for the purpose
of diagnosis or treatment are admissible, and
where the results of such tests support the
intoxication defense of a capital defendant, the
refusal of the trial court to admit such test results
is grossly and prejudicially erroneous, contrary to
the rules of evidence, and a violation of due process
under both the Ohio and federal Constitutions;

Proposition of Law Number 9. The admission of an
involuntary confession is error, and in the absence
of a defense motion to suppress that confession, it
is plain error, requiring reversal of a resulting
conviction;

Proposition of Law Number 10. A death sentence
recommended by a jury from service on which one
or more veniremen were excused because of their
views concerning capital punishment cannot stand
unless it affirmatively appears on the record that
each such venireman excused for cause
unequivocally indicates that his scruples against
capital punishment will automatically prevent him
from recommending the death penalty and/or that
such views will render him unable to return a
verdict of guilty no matter what the evidence, and
that he is prevented by his scruples from following
the instructions of the court and considering fairly
the imposition of the death sentence;

Tla

Proposition of Law Number 11. The failure of
defense counsel to object to an instruction of the
trial court which advises the jury that the
assertion of constitutional rights may be
considered evidence of the existence of essential
elements of the offense, to prosecutorial
misconduct in final argument at the penalty phase
of a capital prosecution, and to challenge by motion
or otherwise the admission of a damaging
statement by the accused, constitutes the denial of
the right to the effective assistance of counsel
secured to the accused by the Ohio and United
States Constitutions;

Proposition of Law Number 12. The Ohio death
penalty statutes are unconstitutional, violating the
Eighth Amendment proscription of cruel and
unusual punishments, the Fourteenth Amendment
guarantees to due process of law and to the equal
protection of the law, and also violating the
concomitant provisions of the Ohio Constitution:

(A) The death penalty is so totally without
penological justification that it results in
the gratuitous infliction of suffering, and
consequently, there is no rational state
interest served by the ultimate sanction;

(B) Both locally, statewide and nationally, the
death penalty is inflicted disproportionately
upon those who kill whites as opposed to
those who kill blacks, and even within
Hamilton County, the death penalty is
selectively imposed, rendering the penalty
as applied in Hamilton County arbitrary
and capricious on the one hand, and the

(C)

(D)

72a

product of racial discrimination on the
other;

The use of the same operative fact to first
elevate what would be “ordinary” murder to
aggravated murder, and then to capital,
death-eligible aggravated murder permits
the state (1) to obtain a death sentence
upon less proof in a felony murder case than
in a case involving prior calculation and
design, although both crimes are ostensibly
equally culpable under the Revised Code,
and (2) fails to narrow the capital class to
those murderers for whom the death
penalty is constitutionally appropriate;

The requirement that a jury must

recommend death upon proof beyond a

reasonable doubt that the aggravating
circumstances outweigh only to the
slightest degree the mitigating
circumstances renders the Ohio capital
statutes quasi-mandatory and permits the
execution of an offender even though the
mitigating evidence falls just short of
equipoise with the aggravating factors, with
the result that the risk of putting someone
to death when it is practically as likely as
not that he deserves to live renders the
Ohio capital process’ arbitrary § and.
capricious, and, in the absence of a
requirement that, before death may be
imposed, aggravating factors must
substantially outweigh mitigating factors,
unconstitutional;

(E)

(F)

(G)

73a

The Ohio capital statutes are
constitutionally infirm in that they do not
permit the extension of mercy by the jury
even though aggravating factors may only
slightly outweigh mitigating factors;

The provisions of Crim. R. 11(C)(3)
permitting a trial court to dismiss
specifications upon a guilty plea only under
the nebulous and undefined concept “in the
interests of §_justice”(1) needlessly
encourages guilty pleas sand_ the
concomitant waiver of the right to jury, to
compulsory process and to confrontation
and (2) reintroduces the possibility that the
death penalty will be imposed arbitrarily
and capriciously;

The Ohio capital sentencing scheme is
unconstitutional because it provides no
standards for sentencing or review at
several significant stages of the process and
consequently death sentences are imposed,
and reviewed, without sufficient statutory
guidance to juries, trial courts and
reviewing courts to prevent the
unconstitutional arbitrary and capricious
infliction of the death penalty;

Proposition of Law Number 13. Where one is
sentenced to death for aggravated murder, and no

less than ten other defendants in the same county
were capitally eligible, having been found guilty of
aggravated murder during the commission of
aggravated robbery, but none of those ten were
capitally prosecuted, much less sentenced, then the
death sentence for murder of the accused must be

. 74a

vacated and set aside, as it is disproportionately
severe;

Proposition of Law Number 14. An appellate

court, in considering whether the death sentence
meted to an_ individual appellant is
disproportionately severe and appropriate, is
required to consider for purposes of comparison,
not only those cases where the death sentence was
sought, but those cases where the defendant was
death eligible, whether or not the death sentence
was sought or imposed in such other cases;

Proposition of Law Number 15. Where, within a

given county, those who are sentenced to death are
most frequently convicted of the aggravated
murder of white people, and those who escape the
ultimate sanction are most frequently convicted of
the aggravated murder of black people, the equal
protection clause of the Fourteenth Amendment
has been violated.

Exhibit S t

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_1477%3A2. Public record. Not legal advice.