COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 71785 STATE OF OHIO : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION ARTHUR TYLER : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: SEPTEMBER 10, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CR-181132. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor Diane Smilanick, Esq. Assistant County Prosecutor Justice Center - Courts Tower 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: David H. Bodiker, Esq. Ohio Public Defender Randall L. Porter, Esq. Kathryn L. Sandford, Esq. Assistant Ohio Public Defenders 8 East Long Street, 11th Floor Columbus, OH 43266-0587 -2- TIMOTHY E. McMONAGLE, J.: Petitioner-ap decision of the Cuyahoga County Common Pleas Court denying his petition for post-conviction relief without a hearing. For the reasons epellant, Arthur requested relief and affirm. The record reflects that appellant was convicted and sentenced to death for the March 1983 murder of Sander Leach. The conviction and sentence were ultimately affirmed on appeal to this court.1 State v. Tyler (Feb. 11, 1988), Cuyahoga App. No. 51696, unreported. The Supreme Court of Ohio, likewise, affirmed. State v. Tyler (1990), 50 Ohio St.3d 24. The United States Supreme Court denied certiorari. Tyler v. Ohio (1990), 498 U.S. 951, 111 S.Ct. 371, 112 L.Ed.2d 334. On July 5, 1991, appellant filed a petition for post- conviction relief claiming that his conviction was void or voidable under the Ohio and United States Constitutions. In denying the petition without a hearing, the trial court determined that appellant did not present any grounds for relief under the statute. This appeal followed, wherein appellant assigns the following errors for our review: I. OHIO'S POST-CONVICTION SYSTEM DOES NOT COMPLY WITH THE REQUIREMENTS OF DUE PROCESS AS GUARANTEED BY THE FIFTH, 1This court reversed appellant's first conviction and granted appellant a new trial after this court determined that appellant did not receive effective assistance of counsel. State v. Tyler (Dec. 27, 1984), Cuyahoga App. No. 47533, unreported. Appellant was, nonetheless, convicted and sentenced to death upon retrial. -3- SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION. II. THE TRIAL COURT ERRED WHEN IT DISMISSED APPELLANT'S PETITION AS A RESULT OF UNDUE PRESSURE FROM THE OHIO SUPREME COURT IN VIOLATION OF HIS 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. III. THE TRIAL COURT ERRED IN SUMMARILY DISMISSING APPELLANT'S POST-CONVICTION PETITION WITHOUT AFFORDING HIM AN EVIDENTIARY HEARING. IV. THE TRIAL COURT ERRED IN FINDING THAT APPELLANT'S CLAIMS WERE SUBJECT TO THE BAR OF RES JUDICATA AND IN FAILING TO ADDRESS THE MERITS OF THE CLAIMS. V. THE TRIAL COURT ERRED IN FINDING THAT APPELLANT'S CLAIMS WERE SUBJECT TO THE BAR OF RES JUDICATA AND IN FAILING TO ADDRESS THE MERITS OF THE CLAIMS. VI. THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE'S MOTION FOR SUMMARY JUDGMENT WHEN EACH OF THE ONE HUNDRED THIRTY-EIGHT CAUSES OF ACTION SET FORTH A CONSTITUTIONAL VIOLATION UPON WHICH RELIEF SHOULD HAVE BEEN GRANTED. VII. THE TRIAL COURT ERRED BY NOT IMPOSING A LIFE SENTENCE ON APPELLANT. I. In his first assignment of error, appellant claims that Ohio's post-conviction process does not comply with the due process requirements guaranteed by the United States Constitution. In particular, he argues that the post-conviction statute as enacted is unduly restrictive as a corrective procedure because of the judicially created doctrine of res judicata. The pervasive use of -4- this doctrine, he claims, is solely for judicial economy and leaves the criminal defendant who has been sentenced to death without recourse to adequately attack his conviction on constitutional grounds. This is especially true, he continues, because the petitioner is denied the opportunity to conduct the discovery necessary to support his petition and hurdle the res judicata bar. We are not unsympathetic to appellant's arguments and acknowledge that, for many petitioners, a petition for post- conviction relief may seem like an exercise in futility. Nonetheless, as an intermediate reviewing court, we are not in a position to ignore the rulings of this state's supreme court. On the contrary, we are duty bound to analyze cases before us according to the well-established precedent in this area of law. See State v. Allen (June 4, 1998), Cuyahoga App. No. 72427, unreported at 9. Accordingly, appellant's first assignment of error is not well taken and is overruled. II. In his second assignment of error, appellant contends that the trial court was unduly pressured by the supreme court to render a decision and, as a result, did not give appellant's petition the time and consideration mandated by the statute. The lack of time and attention, he claims, is evidenced by the trial court's failure to (1) permit discovery; (2) hold an evidentiary hearing; and (3) adequately cite to the record. -5- In support of this argument, appellant draws our attention to a June 1996 judgment entry wherein it was stated that the Ohio Supreme Court notified the trial court, as successor to another judge's docket, that appellant's petition remained pending before it. Appellant asks this court to infer that the time interval between June 1996 and the trial court's decision in November 1996 is insufficient from which an adequate review could have taken place. We disagree. The trial court's findings of fact and conclusions of law support a thorough and complete review of appellant's petition. While certainly not its responsibility to do so, the trial court painstakinglyorganized a rather disorganized petition in order to facilitate its review. These are not the attributes of a court that, haphazardly and under the restraints of time and power, would hurriedly issue a decision to be in compliance with those dictates. On the contrary, they support a court conscientious about its duty to thoroughly and completely review the matter before it.2 Accordingly, appellant's second assignment of error is not well taken and is overruled. III. 2We take this opportunity to admonish appellant and his counsel for the manner in which the petition was presented to the trial court. The voluminous petition is not paginated and is topically unorganized in both the presentation of claims and exhibits. Such a random and slipshod presentation does not facilitate a court's review. -6- Assignments of error three through six are all related and challenge the denial of appellant's petition, especially without a hearing. The statutory framework governing post-conviction relief is set forth in R.C. 2953.21. This statute provides a mechanism for criminal defendants to petition the court for an evidentiary hearing and request relief on the basis that their convictions are void or voidable on state or federal constitutional grounds. Pertinent to these assignments of error is subsection (C), which provides, in part: Before granting a hearing, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition and supporting affidavits, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript. *** If the court dismisses the petition, it shall make and file findings of fact and conclusions of law with respect to such dismissal. It is the petitioner who bears the burden of submitting evidentiary documents containing sufficient operative facts demonstrating that his claim merits a hearing. State v. Jackson (1980), 64 Ohio St.2d 107, 111. A petition for post-conviction relief is subject to dismissal without a hearing when the record indicates that the petitioner failed to submit evidentiary material containing sufficient operative facts. Id. at the syllabus; State v. Scott (1989), 63 Ohio App.3d 304, 307. -7- Likewise, a petition filed under this statute may be dismissed without an evidentiary hearing when the claims asserted therein are barred by the doctrine of res judicata. Under this doctrine, a final judgment of conviction bars a defendant who had counsel from raising and litigating in any proceeding, except in an appeal from the judgment, any defense or claim of lack of due process that was raised, or could have been raised, by the defendant at trial or on direct appeal. See State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus; State v. McCullough (1992), 78 Ohio App.3d 587, 591. A petition that states a substantive ground for relief and that relies upon evidence dehors the record should be afforded an evidentiary hearing unless opposing evidence fails to raise a genuine issue of material fact. State v. Milanovich (1975), 42 Ohio St.2d 46, 51; State v. Moore (1994), 99 Ohio App.3d 748, 753. If a court finds that an issue raised in a petition for post-conviction relief has, or should have been raised at trial, or on direct appeal, the trial court may dismiss the petition without a hearing on the grounds of res judicata. State v. Perry, supra; State v. Nicholson (July 24, 1997), Cuyahoga App. No. 71398, unreported. Before we address the merits of appellant's petition, appellant challenges the scope of review conducted by the trial court. Specifically, appellant contends that the trial court failed to review the transcript of appellant's first trial and since R.C. 2953.21 mandates a review of the entire file, the denial of the petition was inappropriate. -8- Indeed, it is the duty of the trial court to review the entire record when reviewing a petition for post-conviction relief. R.C. 2953.21(C). Nonetheless, we find that the portions of the transcript referenced by appellant were also copied as exhibits and available for review by the trial court. Thus, appellant has failed to demonstrate that any alleged failure to review the transcript at issue resulted in any prejudicial error. While we do not condone a trial court's failure to review the entire record, which may or may not be true in this case, review of the actual transcript at issue would not be necessary to resolve the issues raised by appellant in his petition because he appended those portions relevant to the claims asserted. See State v. Allen (June 4, 1998), Cuyahoga App. No. 72427, unreported at 8. Turning to appellant's petition, appellant presents one hundred thirty-eight claims for relief. Because they are topically unorganized, as are the exhibits that support them, we have categorized them as follows in order to facilitate our review. A. Claims Related to Jury Selection Claims 1, 3, 7, 8, 9, 13, 48, 49, 50, 53, 56, 58, 72, 82, 88 and 91 challenge, in one way or another, the manner in which the jury was selected. We find that these claims were either raised and addressed on direct appeal, or could have been, and are thus barred by the doctrine of res judicata. While appellant has supported three of these claims (numbers 7, 13 and 58) with documents de hors the record, these documents, which are affidavits of jurors in other capital cases, cannot support appellant's claims -9- that the jurors, in this particular case, were confused or otherwise misled as to the comments of counsel during voir dire. Claim number 56, which asserts that potential jurors saw appellant in shackles during voir dire, is supported by an affidavit of appellant. While any statements contained in his affidavit could be deemed self-serving, nowhere in the affidavit are there any averments regarding appellant's appearance in shackles. Without any support for this claim, the trial court was correct in denying the requested relief. B. Claims Related to the Prosecutor's Conduct Claims 2, 10, 11, 30, 31, 36, 40, 63, 64, 96, 101, 114, 127, 128 and 136 challenge the conduct of the prosecutor during trial, either in relation to the prosecutor's arguments and/or comments during trial or that the prosecutor failed to make timely and full discovery. With respect to appellant's claims regarding discovery, we find the issue moot in that the appellant, in 1992, was granted mandamus relief relative to the discovery of public records. Cf. State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 428. As pertains to appellant's claims regarding the prosecutor's conduct and comments during trial (claims 2, 10, 11, 96, 101, 114, 127 and 128), we find these claims barred by res judicata. Appellant's claims are supported by citations to the record and were either raised, or could have been raised, at trial or on appeal. The same is true of appellant's claim for selective prosecution (claim 40). Like the claims above, appellant's -10- supporting documentation comes from the record and was either raised, or could have been raised, at trial or on appeal. C. Claims Relating to the Weight or Sufficiency of the Evidence Claims 4, 5, 6 and 33 complain that appellant's convictions are void or voidable because they are not supported by sufficient evidence or are contrary to the weight of the evidence. As before, we find these claims to be barred by res judicata because they were raised and considered on direct appeal to this court. See State v. Tyler (Feb. 11, 1988), Cuyahoga App. No. 51696, unreported at 16-17. D. Claims Relating to Jury Instructions Claims 18, 34, 47, 51, 52, 54, 55, 59, 60, 62, 73, 83, 87, 92, 93, 99, 102, 109, 119, 131, 133 and 135 challenge the trial court's instructions to the jury. Appellant references the transcript as support for these errors as well as affidavits of jurors in other capital cases. We find, as above, that these claims are barred by res judicata because they either were raised (claims 18 and 133), or could have been raised, on direct appeal. As previously discussed, the affidavits of jurors not connected with the instant case can have little bearing on the validity of appellant's conviction. See Section III-A, supra. E. Claims Related to Appellate Review Claims 19, 21, 23, 26, 35, 71 and 78 challenge the level of review conducted by the reviewing courts. Appellant cites several -11- instances of error he claims were made when reviewing his conviction and death sentence. We find that none of these claims are appropriately raised in a petition for post-conviction relief. State v. Mitchell (1988), 53 Ohio App.3d 117, 118-119. R.C. 2953.21 provides a state remedy to attack a judgment of conviction where that judgment was based on a denial of a criminal defendant's constitutionally protected rights. Id. Challenging the appropriateness of the appellate review process exceeds the boundaries imposed by the legislature when it enacted R.C. 2953.21 et seq. Id. F. Claims Related to Ineffective Assistance of Counsel Claims 28, 38, 39, 44, 65, 67, 76 and 97 assert that appellant's convictions are void or voidable because his counsel was ineffective. Specifically, he argues that counsel was ineffective in several regards, namely: (1) the manner in which counsel handled the mitigation phase of trial; (2) counsel's failure to move for a change in venue; (3) counsel's failure to request forensic experts; (4) the manner in which counsel handled voir dire; (5) counsel's failure to move for a continuance when it became known that witness Leroy Head would testify; and (6) the manner in which counsel handled several evidentiary issues. We find that further consideration of these issues is barred by the doctrine of res judicata as these arguments were all raised and considered on direct appeal. G. Claims Related to Trial Testimony -12- Appellant asserts that his convictions are void or voidable because the trial court improperly admitted testimony of several witnesses. These witnesses include: (1) Leroy Head [claims 14, 100, 105, 110, 116 and 125]; (2) Anthony Gillis [claims 120, 122]; (3) Judge Felton Parker [claims 123]; (4) Annie Travick [claims 124]; (5) Susie Amerson [claim 129]; and, (5) Facendo Cerafingos [claim 137]. In addition, there were several claims which we classified as pertaining to miscellaneous errors related to trial testimony, including claims 15 (extensive leading questions by prosecutor); 16 (improper testimony of Det. Svekric); 17 (victim impact testimony); 46 (improper cross-examination); 57 (cumulative photos of victim and crime scene); 75, 85, 104 (all related to admission of other act testimony); 107 (admission of hearsay); and, 121 (use of trial transcript from first trial). With the exception of claim 100, we find that these claims were either raised and addressed on direct appeal, or could have -13- been, and are thus barred by the doctrine of res judicata Appellant presents nothing outside the record that would support his contention that his convictions are void or voidable as it pertains to the issues raised under these claims. Claim 100, however, does present evidence dehors the record that properly is the subject of a post-conviction relief petition. As raised in appellant's petition and discussed during oral argument, appellant claims that his conviction is void or voidable because the state failed to disclose that witness Leroy Head was given a deal in exchange for his testimony. In support of this claim, appellant references not only the record but also the a.ffidavits of Ohio Public Defender attorneys who interviewed Head, an affidavit of Head's trial counsel wherein he avers that Head received a reduced sentence in exchange for his testimony and a copy of the state's brief in response to Head's motion for reconsideration of sentence wherein the state recommended the elimination of the mandatory year sentence for the gun specification.3 3In appellant's brief opposing the state's motion to dismiss, appellant references supplemental affidavits filed to support this claim. Specifically, he references exhibits 66, 68, 75 and 78. Exhibit 75, in particular, is allegedly an affidavit of Head wherein he avers that he was threatened if he did not testify and that he received sentencing consideration in exchange for testifying. Nonetheless, these exhibits are not part of the record before this court. Considering that we once remanded this case because of an incomplete record and requested counsel for both parties to insure its completeness, we are at a loss to explain their omission. Because they are not part of the record before us, we are unable to consider any potential value these exhibits may have possessed. -14- The law of this state requires a prosecuting attorney, upon motion of the defendant before trial, to disclose to the defendant all known evidence favorable to the defendant and material to either guilt or punishment. Crim.R. 16(B)(1)(f). When the prosecution withholds material, exculpatory evidence in a criminal proceeding, it violates the defendant's due process right to a fair trial under the Fourteenth Amendment. [T]he suppression by the prosecution of evidence favorable to an accused violates due process where the evidence is material either to guilt or to punishment, irrespective of the good or bad faith of the prosecution. Brady v. Maryland, (1963), 373 U.S. 83, 87; see, also, State v. Johnston (1988), 39 Ohio St.3d 48, paragraph four of the syllabus. When the reliability of a given witness may well be determinative of guilt or innocence, nondisclosure of evidence affecting credibility falls within this general rule. Giglio v. United States (1972), 405 U.S. 150, 154, citing Napue v. Illinois (1959), 360 U.S. 264, 269. In determining whether the prosecution improperly suppressed evidence favorable to an accused, such evidence shall be deemed 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. This standard of materiality applies regardless of whether the evidence is specifically, generally, or not all requested by the defense. Johnston, 39 Ohio St.3d at paragraph five of the syllabus, following United States v. Bagley -15- (1984), 473 U.S. 667; see, also, Kyles v. Whitley (1995), 514 U.S. 419. While appellant relies heavily on the affidavit of Head's defense counsel for the proposition that this deal was known in advance of trial and should, therefore, have been disclosed, we do not agree. Nothing in the affidavit suggests that the reduction in sentence was promised in exchange for Head's testimony before Head testified. Head's motion to reconsider sentence was filed and ruled on after the completion of appellant's trial. The conclusion we draw is that, while it is certainly possible that Head may have inquired as to the possibility of reducing his sentence before he testified, nothing in the record supports that anything definitive was promised that required disclosure. Assuming for the sake of argument that appellant's evidence did support that a deal was entered into before Head testified that would require disclosure, our conclusion would be unaltered. A new trial is only warranted if the false testimony could *** in any reasonable likelihood have affected the judgment of the jury ***. Giglio, 405 U.S. at 154. Here, unlike the witness in Giglio, there was testimony other than Head's that implicated appellant's involvement with the murder. Thus, it cannot be said that, had the evidence been disclosed to the defense, the result of the proceeding would have been different. H. Claims Related to Miscellaneous Trial Errors Appellant asserts several claims related to miscellaneous alleged errors occurring during trial. They are summarized below: -16- a. Failure to make a complete record (Claims 12, 80 and 108); b. Denied access to public records (Claim 22); c. Inappropriate venue (Claim 24); d. Grand jury composition/record (Claims 25 and 27); e. Denied use of expert witnesses (Claims 41, 45, 74, 77 and 115); f. Appellant's waiver evidence in mitigation (Claims 42, 84, 86 and 90); g. Improper search of appellant's mother's home (Claim 61); h. Leroy Head and appellant should have been jointly tried (Claim 68); i. Errors by trial court judge in his opinion (Claims 69 and 70); j. Lack of an arraignment (Claim 79); k. Denied opportunity to interview witnesses (Claim 81); l. Errors related to the jury view (Claims 89 and 95); m. The level of courtroom security denied fair trial (Claims 94 and 98); n. Ethical violations by counsel (Claims 43, 103 and 118); o. Loss of victim's clothing for testing (Claim 106); p. Trial court's actions on motions (Claims 111 and 134); q. Appellant not present when jury returned question (Claim 112); r. Inaccuracies in the indictment (Claims 113 and 117); s. Jury's questions regarding verdict forms (Claim 126); t. Residual doubt existed (Claim 132); and u. Cumulative effect of all errors (Claim 138). All of the above errors challenge, in one way or another, the manner in which the trial was conducted. As a consequence, they were either raised and considered on direct appeal, or could have been, and are barred from further consideration under the doctrine of res judicata. Accordingly, assignments of error three through six are not well taken and are overruled. IV. -17- In his seventh assignment of error, appellant contends that his sentence should be reduced to life imprisonment because of the delay in ruling on his petition for post-conviction relief. He cites no authority for such a proposition nor were we able to independentlyidentify any. Consequently, the assignment of error is not well taken and is overruled. Finding no error in the trial court's entry of judgment denying appellant's petition for post-conviction relief, we affirm. -18- 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. TIMOTHY E. McMONAGLE JUDGE NAHRA, P.J. and O'DONNELL, J., CONCUR. N.B. This entry is an announcement of the court's decision. See App.R. 22(D) and 26(A); Loc.App.R. 22(B), 22(D) and 26(A); Loc.App.R. 27. This decision will be journalized and will become the judgment and order of the court pursuant to App.R. 22(E) unless a motion for reconsideration with supporting brief, per App.R. 26(A), is filed within ten (10) days of the announcement of the court's decision. The time period for review by the Supreme Court of Ohio shall begin to run upon the journalization of this court's .