COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NOS. 69547 and 70173 STATE OF OHIO : : : JOURNAL ENTRY Plaintiff-Appellee : : AND vs. : : OPINION GARY JOHNSON : : : Defendant-Appellant : : DATE OF ANNOUNCEMENT OF DECISION: AUGUST 29, 1996 CHARACTER OF PROCEEDING: Civil appeals from Common Pleas Court Case No. CR-182258 JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: STEPHANIE TUBBS JONES Cuyahoga County Prosecutor L. CHRISTOPHER FREY Assistant County Prosecutor The Justice Center 1200 Ontario Street Cleveland, Ohio 44113 For Defendant-Appellant: DAVID H. BODIKER Ohio Public Defender DALE A. BAICH Assistant State Public Defender Ohio Public Defender Commission 8 East Long Street - 11th Floor Columbus, Ohio 43266-0587 - 2 - O'DONNELL, J.: Gary Johnson appeals the judgments of the Common Pleas Court denying two petitions for post-conviction relief which are consolidated for our review. In October, 1983, the State of Ohio tried Johnson on charges of aggravated murder in the death of Eunice Graster, who was killed on April 26, 1983 during a robbery at the Reno Hotel in Cleveland. The jury convicted him and the court, upon the recommendation of the jury, imposed the death penalty. On appeal, this court affirmed the trial court judgment, but the Ohio Supreme Court reversed the conviction finding Johnson's trial counsel denied him the effective assistance of counsel by failing to present evidence during the mitigation phase of trial. On retrial, a jury again convicted Johnson of aggravated murder and the court again imposed the death penalty, but Johnson's retrial counsel, who had obtained the reversal of the first conviction, did not offer any evidence during the mitigation phase of that trial. Johnson appealed this second conviction to the Ohio Court of Appeals and the Ohio Supreme Court which affirmed the conviction and death penalty. The United States Supreme Court denied Johnson's Petition for Certiorari. Johnson v. Ohio (1990), 494 U.S. 1039. - 3 - On October 3, 1990, Johnson filed a Petition for Post- Conviction Relief and then an amended Petition on November 8, 1991. While the Petition for Post-Conviction Relief was pending in the Common Pleas Court, Johnson filed a Petition for Writ of Mandamus seeking production of documents from the Cleveland Police Department, Homicide Unit, relating to the murder of Eunice Graster. This court granted the Writ, in part, in State ex rel. Johnson v. City of Cleveland (September 30, 1991), Cuyahoga App. No. 60964, unreported, and as a result Johnson obtained several documents from the Cleveland Police Department, Homicide Unit. Additionally, Johnson moved this court to reconsider his appeal while the petition for post-conviction relief was pending. This court denied the motion for reconsideration on February 17, 1994. State v. Johnson (February 17, 1994), Cuyahoga App. No. 53323, unreported. On August, 14, 1995, the Common Pleas Court denied Johnson's Petition for Post-Conviction relief which he now appeals in case number 69547, assigning five errors for review. On September 15, 1995, Johnson filed his First Successor Petition for Post-Conviction Relief in Common Pleas Court based upon the information he received in the Writ proceeding which was unavailable to him at the time he filed the original petition for post-conviction relief. The Common Pleas Court denied this successor petition, and Johnson now appeals that decision in case number 70173, assigning five errors for review. - 4 - 69547 In case number 69547, the appeal from the trial court's denial of his petition for post-conviction relief, Johnson assigns five errors for our review. The first assignment of error states: APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S FAILURE TO PREPARE FOR THE TRIAL AND SENTENCING PHASES OF THE PROCEEDINGS. THE FAILURE BY COUNSEL VIOLATED APPELLANT'S RIGHTS AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1,2,9,10,16 AND 20 OF THE OHIO CONSTITUTION. Johnson contends he was denied effective assistance of counsel because his trial and appellate counsel failed to investigate prior to trial and sentencing phases and asserts that had counsel done a thorough investigation, the information he could have presented in mitigation may have affected the outcome of the proceedings. The state, on the other hand, contends Johnson cannot establish that counsel breached an essential duty to him, and further contends that the outcome would have been the same had counsel presented the information Johnson argues should have been presented and that defense counsel made a tactical decision to present only Johnson's unsworn statement as mitigating evidence. The issue for our consideration is whether defense counsel's failure to investigate and present mitigating evidence denied Johnson the effective assistance of counsel. - 5 - In considering a claim for ineffective assistance of counsel, we look to the standard announced by the United States Supreme Court in Strickland v. Washington (1984), 466 U.S. [668, 667]: A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. 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. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable. In this case, Johnson presented affidavit evidence from his trial and appellate counsel, James Willis, to the effect that Willis represented Johnson on direct appeals from his first trial which the Ohio Supreme Court reversed, and that he prepared for Johnson's second trial by reading the transcript and speaking with Johnson. Based on his knowledge and understanding of the case, Willis formulated an opinion on how to approach the second trial, and because Johnson did not feel there was anyone who could say something good on his behalf, Willis presented no mitigation evidence in the case. Johnson also presented an affidavits from psychologist James Eisenberg explaining necessary preparation for mitigation phase, from attorney Harry Reinhart - 6 - stating minimum standards for defense counsel in capital case, from family members expressing their interest in presenting mitigation evidence on behalf of Johnson, and he also presented articles on capital trial strategy. In examining this evidence, we note that the adequacy of Willis's representation in this case has been addressed in several prior proceedings. See State v. Johnson (June 23, 1988), Cuyahoga Ap. No. 53323, unreported at 40-41; State v. Johnson (1989), 46 Ohio St.3d 96, 106; State v. Johnson (February 17, 1994), Cuyahoga App. No. 53323, unreported at 8-9. In each of these opinions, this court and the Ohio Supreme Court have remarked that Willis had detailed knowledge of the case due to his extensive involvement in successfully arguing appeals from the first trial, and therefore, the courts concluded Willis made tactical decisions to proceed as he did in the second trial. As this court stated: [Willis] was thoroughly familiar with the case, so the decision not to present any other evidence in mitigation may well have been because there was none, except for that offered during the guilt phase of trial, or the omission of such evidence may well have been the result of a tactical, informed decision by counsel. State v. Johnson (June 23, 1988), Cuyahoga App. No. 53323, unreported at 41. The evidence presented by Johnson in his petition for post- conviction relief, provides nothing to alter this conclusion. Accordingly, the trial court properly concluded that Johnson was - 7 - not denied the effective assistance of trial counsel, and the first assignment of error is overruled. The second assignment of error states: APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL DUE TO COUNSEL'S FAILURE TO SECURE A COMPLETE TRANSCRIPT OF THE CAPITAL PROCEEDINGS. THE FAILURE BY COUNSEL VIOLATED APPELLANT'S RIGHTS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1,2,9,10,16 AND 20 OF THE OHIO CONSTITUTION. Johnson argues his appellate counsel's failure to secure a complete transcript of the capital proceedings denied him the effective assistance of counsel. The state contends the post- conviction statute does not provide a remedy for ineffective assistance of appellate counsel, and further, that this court already addressed this issue in State v. Johnson (February 17, 1994), Cuyahoga App. No. 53323, unreported. This court has consistently held that Ohio post-conviction relief statutes do not provide a remedy for claims of ineffective assistance of appellate counsel, and therefore, a trial court may properly dismiss such claims brought before the court in a petition for post-conviction relief. State v. Mitchell (1988), 53 Ohio App.3d 117. In this case, Johnson alleges error by appellate counsel in failing to secure a transcript of the voir dire proceedings for purposes of appeal. This claim is not cognizable on a petition for post-conviction relief and the trial court properly denied - 8 - this claim for relief. Furthermore, this court specifically addressed the issue of appellate counsel's failure to obtain complete transcript for appeal in Johnson's motion for delayed reconsideration. State v. Johnson (February 17, 1994), Cuyahoga App. No. 53323, unreported. Thus, this court has already addressed the issue and the claim is barred under the doctrine of res judicata. Accordingly, for both reasons, this assignment of error is overruled. The third assignment of error states: THE TRIAL COURT ERRED IN DENYING APPELLANT ANY OPPORTUNITY TO CONDUCT DISCOVERY OF NECESSARY FACTS AND EVIDENCE TO JUSTIFY HIS OPPOSITION TO SUMMARY DISMISSAL, OR TO DEVELOP AND SUPPORT HIS CLAIMS FOR RELIEF, THUS VIOLATING APPELLANT'S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1,2,9,10,16, AND 20 OF THE OHIO CONSTITUTION. Johnson believes the trial court erred in denying him an opportunity to discover unspecified additional relevant and material information to support his claims and justify his opposition to summary dismissal of his petition for post- conviction relief. The state contends Johnson's argument is specious because from the state's motion to dismiss the petition on November 8, 1991 to the courts ruling on August 14, 1995, Johnson took no steps to provide the court with additional material. - 9 - In considering the opportunity to conduct discovery in a petition for post-conviction relief, this court has recently explained that a petitioner who has availed himself of a public records request has received adequate discovery. State v. Apanovitch (1995), 107 Ohio App.3d 82. See also, State v. Lott (November 3, 1994), Cuyahoga App. Nos. 66388-66390, unreported. In this case, Johnson availed himself of a public records request after this court granted, in part, his Writ of Mandamus and directed the City of Cleveland to release several documents relating to the Graster homicide. The Ohio Supreme Court affirmed the decision in State ex rel. Johnson v. Cleveland (1992), 65 Ohio St.3d 331. Consequently, on May 25, 1993, Johnson received records contained in the homicide file. Despite this public records request, Johnson maintains the trial court denied him an opportunity to conduct discovery. Furthermore, Johnson has failed to present any specific request for discovery beyond the records he already received. In addition, the nearly four-year period between the state's motion to dismiss and the trial court's ruling afforded Johnson adequate opportunity for discovery, but he did not avail himself of it. Accordingly, Johnson's claim for discovery is without merit and the third assignment of error is overruled. The fourth assignment of error states: THE TRIAL COURT ERRED IN ITS APPLICATION OF THE DOCTRINE OF RES JUDICATA TO THE CLAIMS FOR RELIEF - 10 - RAISED BY APPELLANT, THUS VIOLATING HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1,2,9,10,16, AND 20 OF THE OHIO CONSTITUTION. Johnson argues the trial court erred in concluding the doctrine of res judicata barred some of his claims because he supported the claims with evidence outside the record. The state, on the other hand, argues the trial court properly applied the doctrine of res judicata because the very nature of the claims demand they be addressed at trial or on direct appeal. The issue for our determination is whether the trial court properly applied the doctrine res judicata to these claims. In State v. Perry (1967), 10 Ohio St.2d 175, the Ohio Supreme Court stated in paragraph nine of its syllabus: Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant * * * from raising * * * any defense * * * 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 the judgment. (Emphasis in original.) Our review of the record in this case reveals that claims 6, 8, 12, 13, 15, 16, 17, 18, 29, 32, 33, 37, 41, 42, and 44 in Johnson's petition for post-conviction relief referred to under this assignment of error actually were raised and addressed by the Court of Appeals and/or by the Ohio Supreme Court in prior proceedings. See Appendix A. Therefore, these claims are barred under the doctrine of res judicata. - 11 - In the remaining claims disposed of under res judicata, the trial court determined claims 7, 9, 19, 20, 23, 31, 34, 35, 36, and 40 should have been raised at trial or on appeal. See Appendix A. After reviewing the record, we conclude that all of these issues could have been raised on direct appeal and, Johnson has provided no new evidence to compel the litigation of issues that could have been raised on appeal. Accordingly, the trial court properly concluded these claims for relief are barred under the doctrine of res judicata, and the fourth assignment of error is overruled. The fifth assignment of error states: THE TRIAL COURT ERRED IN DENYING APPELLANT AN EVIDENTIARY HEARING ON THE ALLEGATIONS RAISED IN THE FIRST SUCCESSOR PETITION FOR POST-CONVICTION RELIEF, THUS VIOLATING HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1,2,9,10,16, AND 20 AND ARTICLE II, SECTION 39 OF THE OHIO CONSTITUTION. Since this same assignment of error is raised in case number 70173, and since the alleged error relates to that appeal, we will consider this argument under the fourth assignment of error in case number 70173, infra. 70173 In case number 70173, the appeal from the trial court's denial of his successor petition for post-conviction relief, Johnson assigns five errors for our review. - 12 - The first assignment of error states: THE COURT BELOW ERRED BY FAILING TO GRANT POST- CONVICTION RELIEF. THIS ERROR VIOLATED APPELLANT'S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1,2,9,10,16, AND 20 OF THE OHIO CONSTITUTION. Johnson argues the trial court erred in failing to grant post-conviction relief because newly discovered evidence, initially withheld by the state, but which he received through is Petition for Writ of Mandamus, demonstrates a reasonable probability that disclosure of this material evidence deprived him of a fair trial. The state, on the other hand, argues the trial court properly dismissed the claims based on this new evidence because there existed no reasonable probability that had the evidence been disclosed, the result of the trial would have been different. The issue, then, for our consideration is whether the trial court erred in failing to grant post-conviction relief based on this new evidence. In considering this issue we first recognize that prosecutors possess an affirmative duty to disclose exculpatory evidence to a defendant and, as the United States Supreme Court held in Brady v. Maryland (1963), 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215: [T]he suppression by the prosecution of evidence favorable to an accused upon request violates due process where the evidence is material either to - 13 - guilt or to punishment, irrespective of the good faith or bad faith of the prosecution. Id. at 87, 1196-1197, 218. The United States Supreme Court, then, refined this test in Unites States v. Bagley (1985), 473 U.S. 667 at 682, 105 S.Ct. 3375 at 3383, 87 L.Ed.2d 481 at 494 (removing the element of request) and concluded: The evidence is material only if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. A "reasonable probability" is a probability sufficient to undermine confidence in the outcome. Most recently in Kyles v. Whitley (1995), __ U.S. __, 115 S.Ct. 1155, __ L.Ed.2d __, the court again examined the suppression of exculpatory evidence and determined that material evidence must be considered collectively and furthermore, that in order to survive the reasonable probability test of Bagley, supra: The question is not whether the defendant would more likely than not have received a different verdict with the evidence, but whether in its absence he received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A "reasonable probability" of a different result is accordingly shown when the Government's evidentiary suppression "undermines confidence in the outcome of the trial." [citing Bagley, supra.] With this standard in mind, we consider the evidence presented by Johnson in his successor petition. He deems the following information exculpatory such that its suppression - 14 - created a reasonable probability of a different result under Kyles, supra: 1. Identities of ten people arrested by Cleveland Police in connection with prostitution at or near the Reno Hotel; 2. Identities of "Mr. and Mrs. Sid Arnold" registered at the hotel at the time of the murder. 3. Statement Vera Lundy gave police wherein she gave information inconsistent with her testimony at trial. After reviewing this evidence, we cannot conclude that the cumulative effect of this evidence resulted in a reasonable probability of a different outcome such that it resulted in a verdict unworthy of confidence. First, Johnson presents no connection between the names of the ten individuals arrested for prostitution and facts of his case, other than the fact that they were arrested at or near the Reno Hotel, an establishment with a reputation for prostitution. Second, as Johnson admits in his successor petition, the identities of "Mr. and Mrs. Arnold" were revealed to Johnson before the first trial and Johnson offers no additional reason why this information would have affected his second trial. Third, the statement made by Vera Lundy which differed from her testimony at trial constituted an inconsistency which reflected on her credibility as a witness. However, Lundy also provided inconsistent testimony between the first and second trials as well, and consequently, defense counsel cross-examined Lundy on this discrepancy at the second trial, and she conceded her testimony differed from prior testimony. - 15 - Therefore, considering the cumulative effect of this "new evidence," as we are required to do under Kyles, supra, we conclude Johnson received a trial with a verdict worthy of confidence. Accordingly, the trial court properly denied post- conviction relief on this evidence, and the first assignment of error is overruled. The second assignment of error states: THE TRIAL COURT ERRED IN DETERMINING THAT APPELLANT'S SUCCESSOR POST-CONVICTION CLAIMS WERE BARRED BY RES JUDICATA, THUS VIOLATING APPELLANT'S RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1,2,19,10,16, AND 20 OF THE OHIO CONSTITUTION. Johnson urges the trial court erred in determining his claims were barred by res judicata because R.C. 2953.23(A) permits him to file a successor petition based upon the same facts previously alleged, and also because he could base his claims on newly discovered evidence. The state argues the trial court properly concluded res judicata barred certain claims in Johnson's petition. The issue, then, for our consideration, is whether the trial court properly concluded Johnson's claims barred by the doctrine of res judicata. At the outset we note that in this successor petition the trial court concluded res judicata barred claims four through thirteen of Johnson's First Successor Petition for Post- - 16 - Conviction Relief. See Appendix B, claims four through thirteen. The only claims in the First Successor Petition which the trial court concluded not barred by res judicata were claims one, two, and three, which related to the records from the homicide files offered as new evidence. See Appendix B, claims one, two, and three. In examining the preclusive effect of claims raised in successor petitions, this court recently held in State v. Apanovitch, supra, at 89: In our view, principles of res judicata are no less applicable simply because R.C. 2953.23(A) affords the trial court discretion to hear successor petitions based upon the same facts. * * * The Supreme Court has held that additional filings made after a first round of direct appeals and postconviction relief are likely to be made "for purposes of delay" in an attempt to abuse the court system. [citing State v. Steffen (1994), 70 Ohio St.3d 398.] We believe successor petitions made on identical facts or issues are presumptively more likely to be filed for purposes of delay. In our view, forbidding courts to apply principles of res judicata to successor petitions ignores the obvious -- defendants have been employing delaying tactics which serve only to further undermine public confidence in the expeditious administration of justice. * * * In this case, our review of the record reveals that claims 4, 5, 12, 13, and 14 of the successor petition involve issues which were raised in earlier proceedings or involve issues which could have been raised in prior actions, and therefore, are barred by res judicata. Claims 6, 7, 8, 9, 10, and 11 of the successor petition involve issues relating to voir dire which - 17 - Johnson argues could not have been raised on appeal because of appellate counsel's ineffectiveness in failing to request transcription of voir dire notes which have since been destroyed by fire. However, as discussed in the second assignment of error in case number 69547, supra, post-conviction relief statutes do not provide a remedy for claims of ineffective assistance of appellate counsel, and this court previously addressed Johnson's argument that his appellate counsel rendered ineffective assistance by failing to secure a complete transcript in State v. Johnson, (February 17, 1994), Cuyahoga App. No. 53323, unreported. Furthermore, claims four through fourteen in this successor petition constitute claims based on identical facts and issues which existed at the time Johnson filed his initial petition for post-conviction relief, and therefore, they were presumptively filed for purposes of delay. Steffen, supra. Accordingly, pursuant to Apanovitch, supra, the trial court did not err in applying the doctrine of res judicata to these claims and the second assignment of error is overruled. The third assignment of error states: THE COURT BELOW ERRED IN FAILING TO HOLD AN EVIDENTIARY HEARING TO RECONSTRUCT THE VOIR DIRE PROCEEDINGS. THE FAILURE BY THE COURT VIOLATED APPELLANT'S RIGHTS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1,2,9,10,16, AND 20 OF THE OHIO CONSTITUTION. - 18 - In accordance with our conclusion in the previous assignment of error, Johnson's voir dire claims are barred by the doctrine of res judicata. Therefore, the trial court did not err in failing to hold an evidentiary hearing on these claims and the third assignment of error is overruled. The fourth assignment of error states: THE TRIAL COURT ERRED IN DENYING APPELLANT AN EVIDENTIARY HEARING ON THE ALLEGATIONS RAISED IN THE FIRST SUCCESSOR PETITION FOR POST-CONVICTION RELIEF, THUS VIOLATING HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1,2,9,10,16, AND 20 OF THE OHIO CONSTITUTION. Johnson argues the trial court erred in denying an evidentiary hearing on claims raised in this successor petition because he set forth constitutional claims entitling him to relief. The state urges the trial court properly disposed of the petition because Johnson failed to establish a substantive ground for relief. R.C. 2953.21(C) pertains to petitions for post-conviction relief and provides, in pertinent part: Before granting a hearing, the court shall determine whether there are substantive grounds for relief. In this case, the trial court concluded claims one through four did not raise a substantive ground for relief, (See case number 70173, assignment of error one, supra) and claims four through thirteen were barred under the doctrine of res judicata. - 19 - Therefore, because Johnson did not present substantive grounds for relief, the trial court did not err in failing to hold an evidentiary hearing, and this assignment of error is overruled. The fifth assignment of error states: THE IMPOSITION OF THE SENTENCE OF DEATH BY MEANS OF ELECTROCUTION VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 9 AND 16 OF THE OHIO CONSTITUTION. Johnson argues that death by electrocution constitutes cruel and unusual punishment. The state contends this claim is barred by the doctrine of res judicata. Pursuant to the reasoning employed in case number 69547, assignment of error four, supra, we conclude this assignment of error is barred by the doctrine of res judicata because the appropriateness of capital punishment has been considered in relation to Johnson in his direct appeals. See State v. Johnson (June 23, 1988), Cuyahoga App. No. 53323, unreported; State v. Johnson (1989), 46 Ohio St.3d 96. Accordingly, the fifth assignment of error is overruled. Judgment affirmed. - 20 - It is ordered that appellee recover of appellant its costs herein taxed. The Court finds there were reasonable grounds for this appeal. It is ordered that a special mandate issue out of this Court directing the Common Pleas Court to carry this judgment into execution. A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of the Rules of Appellate Procedure. BLACKMON, P.J., and NAHRA, J., CONCUR JUDGE TERRENCE O'DONNELL N.B. This entry is made pursuant to the third sentence of Rule 22(D), Ohio Rules of Appellate Procedure. This is an announce- ment of decision (see Rule 26). Ten (10) days from the date hereof, this document will be stamped to indicate journalization, at which time it will become the judgment and order of the court and time period for review will begin to run. - i - APPENDIX A Case Number 69547 Trial court's summary of Johnson's Petition for Post- Conviction Relief. 1. The defendant received ineffective assistance of counsel through his attorney's failure to conduct a thorough and meaningful investigation of the case. 2. The defendant received ineffective assistance of counsel, in violation of the Fifth, Sixth, and Fourteenth Amendments to the U.S. Constitution and Section 10 and 16, Article I of the Ohio Constitution, through his attorney's failure to file any and all motions pertaining to the case. 3. The defendant was denied effective assistance of counsel in that he had only one attorney, not two as required in death penalty cases. 4. The defendant was denied effective assistance of counsel because defendant's counsel failed to challenge completely, meaningfully, and in writing, the constitutionality of Ohio's capital sentencing statute. 5. The judgments and sentences against defendant are void or voidable because defendant was denied his right to effective assistance of counsel as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Section 10 and 16, Article I of the Ohio Constitution. Particularly, the defendant's counsel failed to suppress the identification of the defendant by three vice officers. The vice officers picked the defendant's photo from a photo array that was unduly suggestive and constitutionally impermissible. 6. The judgments and sentences against defendant are void or voidable because defendant was denied his rights as guaranteed by the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 9 and 10, Article I, of the Ohio Constitution and Ohio Evidence Rule 403. Particularly, the defendant was prejudiced in that the trial court allowed the jury to see cumulative prejudicial photographs. 7. The defendant was denied his constitutional rights because the prosecution violated the trial court's order and introduced evidence of the defendant's past criminal record. - ii - 8. The trial court erred in allowing Farris Williams to testify as court's witness. 9. The trial court erred in allowing Barbara Campbell's testimony to be read into the record; Barbara Campbell was available at the first trial, but not available at the second. 10. The judgments and sentences against defendant are void or voidable because his trial attorney rendered ineffective assistance of counsel to him by failing to request an examination of any prior recorded written statements of the state's witnesses, pursuant to Criminal Rule 16(B)(1)(g), before commencing cross-examination of those witnesses. 11. The judgments and sentences against defendant are void or voidable because his trial attorney rendered ineffective assistance of counsel at the guilt phase of his trial by calling certain defense witnesses who contributed nothing to defendant's defense, and who actively presented evidence which contributed to defendant's conviction. 12. The judgments and sentences against defendant are void or voidable because his conviction was predicated upon prosecutorial misconduct by the prosecutor's elicitation of irrelevant and immaterial testimony concerning the character of the defendant. 13. Defendant's conviction was secured by inflammatory and emotional statements in violation of the defendant's rights. 14. The judgments and sentences against defendant are void or voidable because defendant was denied his right to effective assistance of counsel as guaranteed by the Fifth, Sixth, and Fourteenth Amendments to the United States Constitution and Sections 10 and 16, Article I of the Ohio Constitution. During closing arguments at both the guilt and sentencing phases of the defendant's trial, the prosecution engaged in improper and misleading arguments. Defense counsel failed to object to these improper and misleading arguments in a timely manner. 15. The judgments and sentences are void or voidable because defendant was denied his rights as guaranteed by the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 9 and 10, Article I of the Ohio Constitution. - iii - A) The trial court erred to the prejudice of defendant when it failed to grant defense counsel's motion for mistrial following the State's argument that the victim had been shot by a left-handed individual. [See the Thirteenth Cause of Action.] B) The trial court erred to the prejudice of defendant when it failed to grant defense counsel's motion for a mistrial following the State's argument that each shot that was fired into the victim was an aggravating circumstance. [See the Twenty-ninth Cause of Action.] The arguments presented by the State to the jury were clearly improper and should have resulted in a mistrial. The failure of the trial court to grant defense counsel's request for a mistrial clearly prejudiced the defendant and denied him his rights as guaranteed by the U.S. Constitution and the Ohio Constitution. 16. The judgments and sentences against defendant are void or voidable because his conviction is based upon insufficient evidence to sustain that conviction or alternately is against the manifest weight of the evidence. 17. The judgments and sentences against defendant are void or voidable because he was condemned to death on the strength of an aggravating circumstance not proven at trial and not based upon sufficient evidence presented by the state. 18. The trial court erred in failing to grant the defendant's Rule 29 Motion to Acquittal. 19. Defendant's convictions and sentences are void or voidable because the trial court, in violation of the Fourteenth Amendment to the United States Constitution, Section 16, Article I of the Ohio Constitution and Ohio Revised Code Sections 2929.05, failed to maintain a complete record of all proceedings. Particularly, the trial court failed to cause the recordation of the jury view in this case. 20. Defendant's convictions and sentences are void or voidable because the trial court, in violation of the Fourteenth Amendment to the United States Constitution, Section 16, Article I of the Ohio Constitution and Ohio Revised Code Sections 2929.05, failed to maintain a complete record of all proceedings. Particularly the trial court failed to cause the recordation of approximately 50 sidebar discussions and conferences had during defendant's trial. [Citations omitted.] The failure of the trial court to - iv - maintain a complete record is prejudicial to defendant because in the absence of a complete record an appellate court does not have the ability to review the entire proceedings. 21. Defendant was prejudiced by the failure to sequester the jury because any information that one of the twelve jurors might have received from either the media or family and friends concerning defendant's case would have denied him his right to a fair and just sentence. 22. Defendant was rendered ineffective assistance of counsel because defense counsel never requested the opportunity to poll the jury concerning any prejudicial information they may have found out concerning the defendant. 23. The trial court failed to charge the jury at the conclusion of the guilt phase as to any lesser but included offenses of which the jury may have found defendant guilty. 24. The judgments and sentences against defendant are void or voidable because trial counsel rendered ineffective assistance of counsel by failing to request in writing or orally certain jury instructions from the court in the guilt phase of defendant's trial. 25. Trial counsel failed to properly investigate and prepare evidence to present to defendant's sentencing jury in mitigation of the penalty of death. 26. Trial counsel rendered ineffective assistance of counsel in breaching a duty to investigate possible mitigating factors by not making a thorough review of the defendant's background. 27. Defense counsel rendered ineffective assistance of counsel in failing to investigate and familiarize himself with the law that applies to such proceedings, ensuring that counsel presents credible, persuasive, mitigating evidence in order to cause the jury to return a life verdict. 28. The judgments and sentences against defendant are void or voidable because defendant's rights were violated as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution. Defendant's conviction and death sentence are void or voidable because counsel for defendant failed to obtain the assistance of a mitigation specialist to assist him in - v - investigating and collecting mitigating evidence on behalf of defendant. 29. The judgments and sentences against defendant are void or voidable because of prosecutorial misconduct in the closing argument of the penalty phase of defendant's trial, in which the prosecutor called upon the jury to consider improper, illegal and highly prejudicial nonstatutory aggravating circumstances as the basis for return of a death sentence. 30. The judgments and sentences against defendant are void or voidable because his conviction and sentence are the result of ineffective assistance of counsel in the penalty phase of his trial when counsel presented a meaningless and inadequate closing argument in which he invited the jury to mandate a death sentence for defendant. 31. The judgments and sentences against defendant are void or voidable because that conviction and sentence are the product of the trial court's inadequate, erroneous, and misleading jury instructions given during the penalty or mitigation phase of defendant's trial. 32. The judgments and sentences against defendant are void or voidable because his conviction is based upon an inaccurate and misleading jury instruction from the trial court which relieved the jury of its responsibility for its death sentence and made it easier for that jury to mandate death for Gary Johnson. 33. The judgments and sentences against defendant are void or voidable because the court erred by instructing the jury that a death sentence for defendant was mandatory, when the court instructed the jury prior to their deliberations as to penalty. 34. The judgments and sentences against defendant are void or voidable because they are based upon jury instructions which were vague and confusing and which impermissibly shifted the burden of proof to defendant. 35. The judgments and sentences against defendant are void or voidable because the court failed to instruct the jury that mercy could be considered as a mitigating circumstance in its deliberations as to the appropriate penalty for defendant. 36. The judgments and sentences against defendant are void or voidable because the trial court failed to instruct the jury - vi - that its verdict of death must be unanimous or that a life sentence would then be the proper result. 37. The judgments and sentences against defendant are void or voidable because the trial court's written opinion, as required by R.C. 2929.03(F), was totally inadequate and did not articulate the court's own weighing process of aggravating and mitigating circumstances. 38. The judgment and sentences against defendant are void or voidable because defendant's attorney rendered ineffective assistance of counsel, by failing to cause a complete record of all trial court proceedings, be made, for later appellate review. 39. The judgments and sentences against defendant are void or voidable because his appellate attorney rendered ineffective assistance of counsel by failing to raise appropriate issues on appeal to both the District Court of Appeals and the Ohio Supreme Court thereby precluding appropriate and thorough appellate review of defendant's claims. 40. Defendant's conviction and sentence are void or voidable because the Ohio Death Penalty is in violation of international laws and Article VI of the United States Constitution. 41. Defendant's conviction and sentence are void or voidable because the Ohio death penalty scheme is unconstitutional on its face in violation of the United States Constitution and the Ohio Constitution. 42. Defendant's conviction and sentence are void or voidable because he was denied a fair and impartial review of his death sentence as guaranteed by the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and Section 10 and 16, Article I of the Ohio Constitution. 43. Defendant's conviction and sentence are void or voidable because the guilt and mitigation phases of his trial were replete with errors, making his sentence of death unreliable and inappropriate in violation of his rights as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution. The errors and failures of counsel, the prosecutor, and the trial court were left uncorrected and were compounded by counsel's failure in the Court of Appeals, and by the failure of the Ohio Supreme court to give this case any more than a cursory and arbitrary review. The judicial system failed to give - vii - Gary Johnson a fair trial, a reliable sentencing determination, and a fair review to insure against the arbitrary and capricious imposition of the death sentence, either in the Court of Appeals or the Supreme Court of Ohio. Any death sentence imposed as the result of these failures throughout the judicial system can never be deemed appropriate. 44. The defendant's conviction was prejudiced for the following reasons as introduced into the Court of Appeals, including Proposition of Law Number X that was introduced to the Ohio Supreme Court. [Assignments of Error and Proposition of Law omitted.] 45. The judgments and sentences against defendant are void or voidable because he was denied the effective assistance of counsel on his direct appeals as of right in a capital case as guaranteed by the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 9, 10 and 16, Article I of the Ohio Constitution. Particularly, the defendant did not receive proper representation because his attorney did not raise the proper issues in accordance with the minimum standards of fairness and reliability required for the imposition of the death sentence. 46. The judgments and sentences against defendant are void or voidable because the trial court failed to instruct the jury at the guilt phase on every essential element under R.C. 2929.04(A)(7), thereby violating defendant's rights to due process of law and to trial by jury as guaranteed by the Sixth Amendment to the United States Constitution and the Due Process Clause of the Fourteenth Amendment to the United States Constitution and Article I, Section 5 and 16, of the Ohio Constitution. 47. The defendant was denied effective assistance of counsel because defense counsel failed to object to the trial court's instructions under R.C. 2929.04(A)(7). 48. The judgments and sentences against defendant are void or voidable because his appellate attorney rendered ineffective assistance of counsel by failing to raise appropriate issues on appeal to both the District Court of Appeals and the Ohio Supreme Court thereby precluding appropriate and thorough appellate review of defendant's claims. 49. The judgments and sentences against defendant are void or voidable because the cumulative effects of the errors and omissions as presented in this petition * * * have been - viii - prejudicial to the defendant and have denied the defendant his rights as secured by the Fourth, Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution. - ix - APPENDIX B Case Number 70173 Trial court's summary of Johnson's Successor Petition for Post-Conviction Relief. 1. The State of Ohio failed to present relevant discovery information which was generated by the Cleveland Police Department (CPD). This failure prejudiced the petitioner's defense as the withheld evidence was essential to the defendant's defense. 2. The State's failure to disclose the withheld evidence resulted in ineffective assistance of counsel and an inability of counsel to fully conduct an investigation on behalf of the defendant. 3. The State's failure to disclose all of the evidence relating to the petitioner's claim resulted in the petitioner's counsel: being unable to mount an adequate or effective direct or cross-examination; being unable to prepare a defense to the charges against the petitioner; or being adequately prepared for the mitigation phase. 4. Vera Lundy, a key witness for the State, was incompetent to testify. 5. Petitioner's counsel at retrial was ineffective because of his failure to request discovery, or conduct a thorough investigation. 6. Various mistakes made at voir dire, though not transcribed, constituted a violation of the petitioner's constitutional rights. 7. Potential jurors who had some opposition to the death penalty were improperly excluded from the jury. 8. The voir dire conducted by the State was conducted in a prejudicial manner, namely forcing the jurors to promise to return a verdict of death. 9. Using its peremptory challenges, the State created a jury composed entirely of persons who favored execution. 10. The voir dire was conducted in a biased manner. The court failed to conduct individual sequestered voir dire, making - x - the prospective jurors too inhibited to respond forthrightly. 11. The trial court failed to remove for cause a juror who clearly demonstrated that she could not be impartial. 12. The courts did not afford Petitioner a fair proportionality review that extends beyond mere "lip service." 13. The death penalty is administered and applied arbitrarily, capriciously, and maliciously in the State of Ohio and the .