COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72427 STATE OF OHIO : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION DAVID WAYNE ALLEN : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: JUNE 4, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, CR-264901. JUDGMENT: AFFIRMED. DATE OF JOURNALIZATION: APPEARANCES: For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq. Cuyahoga County Prosecutor John R. Mitchell, Esq. Gail Denise Baker, Esq. Assistant County Prosecutors Justice Center - Courts Tower 1200 Ontario Street Cleveland, OH 44113 For Defendant-Appellant: David H. Bodiker, Esq. Ohio Public Defender Michael J. Benza, Esq. J. Joseph Bodine, Esq. Assistant State Public Defenders Office of the Ohio Public Defender 8 East Long Street, 11th Floor Columbus, OH 43215-2998 -2- TIMOTHY E. McMONAGLE, P.J.: Defendant-appellant, David Wayne Allen ( appellant ), appeals the decision of the Cuyahoga County Common Pleas Court that denied his petition for post-conviction relief. For the reasons that follow, we affirm. The record reflects that appellant was convicted and sentenced to death for the January 1991 murder of Chloie English. After exhausting the direct appeal process, appellant filed a petition for post-conviction relief on September 20, 1996. Contemporaneous with the filing of this petition, appellant filed several motions, including a motion for the voluntary recusal of the trial court judge. When no ruling was forthcoming on the motion, appellant sought to disqualify the judge by filing an affidavit of prejudice with the Ohio Supreme Court on November 19, 1996.1 Appellant's request for disqualification was denied on December 24, 1996. Appellee, State of Ohio ( state ), filed a motion to dismiss appellant's petition on March 18, 1997. In its findings of fact and conclusions of law dated March 31, 1997 and journalized April 4, 1997, the trial court denied appellant's petition without conducting a hearing and without giving appellant an opportunity to respond to the state's motion to dismiss. Appellant is now before this court and assigns the following errors for our review: 1In response to this application, the trial court judge filed a complaint with the Board of Commissioners on Grievances of the Supreme Court of Ohio. The Board ultimately found disciplinary action unwarranted. -3- I. A CAPITAL PETITIONER HAS THE RIGHT TO A FAIR AND IMPARTIAL JUDGE. II. FAILURE OF THE TRIAL COURT TO ACTUALLY REVIEW THE RECORD OF PROCEEDINGS BEFORE RULING UPON A PETITION FOR POST- CONVICTION RELIEF DENIES A CAPITAL PETITIONER THE RIGHT TO A FAIR PROCEEDING AND DUE PROCESS OF LAW. III. OHIO'S POST-CONVICTION SCHEME IS NOT AN ADEQUATE CORRECTIVE PROCESS. IV. THE TRIAL COURT ERRED BY DISMISSING ALLEN'S PETITION WITHOUT FIRST CONDUCTING AN EVIDENTIARY HEARING. V. ALLEN SET FORTH SUFFICIENT EVIDENTIARY SUPPORT TO MERIT A HEARING ON HIS POST- CONVICTION CLAIMS. I. Under his first assignment of error, appellant challenges the ability of the trial court judge to be fair and impartial in deciding the merits of appellant's petition for post-conviction relief and requests that his case be remanded to the trial court and assigned to a different judge. Specifically, he argues that the judge would be called as a witness as to why the trial court denied appellant's requests to disqualify a potential juror and for funds to hire expert witnesses during the mitigation phase of trial. These are the very same arguments raised by appellant in his application for disqualification that was filed with, and ruled on, by the Ohio Supreme Court. In its entry denying the application, Chief Justice Thomas J. Moyer stated: A judge who presided at trial is not disqualified from hearing the defendant's petition for post-conviction relief. In re -4- Disqualification of Spicer , 89),(November 2019 89-AP-201, unreported. Although I and two members of the (sic) this Court believed that the petitioner's conviction and death sentence should have been reversed because of the trial court's ruling on the defense challenge of a juror, the mere disagreement with a judge's rulings of law does not demonstrate a bias or prejudice that mandates that judge's disqualification. See In re Disqualification of Murphy (1988), 36 Ohio St.3d 605. Moreover, the mere suggestion that a judge will be called as a witness does not automatically result in the disqualification of that judge. In re Disqualification of Gorman (1993), 74 Ohio St.3d 1251. Being familiar with the provisions of Canon 3(C)(1)(a) of the Code of Judicial Conduct and Rule 605 of the Rules of Evidence, [the trial court judge] will conduct herself accordingly if called as a witness at the post-conviction relief hearing. Thus, appellant is now asking this court to rule on an issue already addressed and ruled on by our Supreme Court. This we cannot do. Accordingly, appellant's first assignment of error is not well taken and is overruled. II. Under his second assignment of error,2 appellant contends that the trial court failed to review the entire file as required by R.C. 2953.21 before ruling on appellant's petition. As such, he requests that this court remand this case to the lower court so that his petition can be reviewed in compliance with the statute. 2Appellant filed a motion to remand raising the same arguments as addressed under this assigned error. While the motion has been denied as of the writing of this opinion, our reasons for doing so are detailed at this time. -5- 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 this assignment 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. As the statute provides, the trial court is to review the entire record before ruling on the petition. Appellant, in this case, claims that the trial court did not review at least three boxes of evidence or the transcripts and essentially rubber-stamped the state's opposition brief. In support of this contention, appellant submits the affidavit of an investigator assisting in the preparation of his case who inspected the file, photographed the sealed boxes and copied the logbook of signatures signifying those individuals who had signed out transcripts. Appellant contends that the sealed boxes and lack of the trial judge's signature on the logbook signify that the trial court could not have possibly reviewed the entire file. We disagree. -6- Appellant filed his petition in September 1996. At the time of this filing, the entire record was with the Ohio Supreme Court because it was reviewing the denial of appellant's Murnahan application. The Supreme Court returned the record by courier on December 31, 1996. Appellant is correct that from the time of its return until the trial court ruled on the petition, the record was in this court. Nonetheless, it does not follow that the trial court did not have an opportunity to review the record. Contrary to the affidavit in support of appellant's motion to remand, this court does not utilize a logbook to designate those individuals who sign out a transcript. Rather, a sign-out system is used wherein the individual affixes his or her signature, telephone number and the case number to one of several sheets designated for that purpose. A copy of one such sheet is appended to appellant's motion as Exhibit C. As can be ascertained from this exhibit, several different individuals seeking to review several different cases are all contained on one sheet. Thus, merely because the judge's signature, or that of a staff member, does not appear on the particular sheet signed out by appellant's counsel does not mean that the trial judge did not review the transcript. To be sure, several hundred of these sheets exist at any one time in the court system and it would be necessary to review each and every one to discern if a particular transcript had been signed out. Also contrary to the investigator's affidavit, it is not necessary for this court to issue an order so that the transcript -7- can be removed. An order is only necessary if the case is currently on appeal in this court. No case was pending in this court at the time appellant's petition was before the trial court.2 Nor do the photographs of the sealed boxes signify that the trial court did not review the contents of those boxes. Appellant's investigator photographed the boxes on April 29, 1997, almost one month after the petition had been ruled upon. No evidence was presented that the boxes were in this condition during the entire three months following their return from Columbus. Moreover, even if it could be shown that the boxes were never opened, appellant has failed to demonstrate that the failure to review the contents of these boxes resulted in any prejudicial error. The contents of each of the sealed boxes contained evidence demonstrative in nature, such as the victim's clothing, the items found in the fireplace, the victim's address cards etc. While we cannot condone a trial court's failure to review the entire record, which may or may not be true in this case, review of the items contained in the sealed boxes would not be necessary to resolve the issues raised by appellant in his petition. Accordingly, appellant's second assignment of error is not well taken and is overruled. III. 2In all fairness to appellant, however, the document relied upon by appellant, and signed by the Chief Justice of this court at the time, does not so specifically state. -8- Under his third assignment of error, appellant contends that Ohio's post-conviction process is inadequate. Appellant argues that he was denied the benefit of discovery that would have supported his petition. Specifically, he challenges the denial of his request for investigative records maintained by the prosecutor's office, including those records related to the coroner's investigation, and the records of the Bedford Police Department. The scope of discovery in a criminal proceeding is governed by Crim.R. 16 and does not provide for what is often called `full,' `complete' or `open file' discovery. State ex rel. Steckman v. Jackson (1994), 70 Ohio St.3d 420, 428. Moreover, the Steckman court held that a defendant in a criminal case who has exhausted the direct appeal process may not avail herself or himself of a public records request to support a petition for post-conviction relief. Id. at paragraph six of the syllabus; see, also, State ex rel. Larson v. Cleveland Public Safety Director (1996), 74 Ohio St.3d 464, 465; State ex rel. Cleveland Police Patrolmen's Assoc. v. Cleveland (Jan. 27, 1998), Cuyahoga App. No. 72298, unreported at 5-7. While, as appellant suggests, it may appear to be an exercise in futility for a criminal defendant to pursue post- conviction relief where his petition is dependent upon the very records he is precluded from obtaining, this court, as an intermediate reviewing court, is not in a position to depart from the reasoning set forth by the Supreme Court of Ohio. -9- Appellant's remaining request is for expert assistance in preparing his petition. While not undermining the importance of such assistance, we do not find that the trial court erred in failing to grant such a request. Appellant sought the assistance of a neurologist and a neuropsychologist to evaluate the extent of appellant's alleged mental defects as well as a forensic expert for, inter alia, DNA analysis. The record reflects that appellant's counsel already expended its own funds for the employment of a psychologist and one forensic pathologist. Yet another forensic expert was requested as well as a neurologist and neuropsychologist for exculpatory and mitigatory purposes. Looking at the report submitted by the forensic pathologist, it cannot be said that the trial court abused its discretion in failing to grant appellant's request for a second forensic expert. Even had the trial court granted appellant's motion, we find that the use of such reports would have had no effect on the validity of appellant's petition. As is more thoroughly discussed in Section IV, infra, these issues were raised and considered in appellant's direct appeal and under the doctrine of res judicata are barred from consideration in a petition for post-conviction relief. Accordingly, appellant's third assignment of error is not well taken and is overruled. -10- IV. Assignments of error four and five are interrelated and will be discussed together. Succinctly, appellant contends that the trial court erred in denying his petition without conducting an evidentiary hearing. The state, on the other hand, maintains that appellant's petition is barred by the doctrine of res judicata. Before considering the substantive arguments raised under these assigned errors, appellant raises a procedural argument that res judicata cannot be raised as a defense in a motion to dismiss as has been done by the state in this case. Appellant correctly states that post-conviction proceedings are civil in nature. See State v. Nichols (1984), 11 Ohio St.3d 40, 42. The proceedings, and motions related thereto, however, are governed by R.C. 2953.21, which permits the state to move for dismissal and likewise raise res judicata as a defense. See State v. Lawson (1995), 103 Ohio App.3d 307, 313; see, also, State v. Perry (1967), 10 Ohio St.2d 175. Thus, there is no procedural bar precluding the state from raising res judicata as a defense in its motion to dismiss. As to the substantive issues raised in appellant's petition, 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 -11- sufficient operative facts. Id. at the syllabus; State v. Scott (1989), 63 Ohio App.3d 304, 307. 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. Consequently, 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. A. In his first claim for relief, appellant contends that exculpatory and/or mitigating evidence was withheld by the prosecution in violation of Brady v. Maryland, (1963), 373 U.S. 83. -12- This evidence, he maintains, amounts to a denial of his substantive and procedural due process rights thereby making his convictions and sentences void and/or voidable. The state, on the other hand, claims that the withheld evidence was not exculpatory. 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 at 87; see, also, State v. Johnston (1988), 39 Ohio St.3d 48, paragraph four of the syllabus. 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 (1984), 473 U.S. 667; see, also, -13- Kyles v. Whitley (1995), 514 U.S. 419. A reversal is not required when a mere combing of the prosecutor's files after the trial disclosed evidence possibly useful to the defense but not likely to have changed the verdict. Giglio v. United States (1972), 405 U.S. 150, 154. Appellant claims that the following evidence was improperly withheld: (1) A police statement given by neighbor Julie Walker wherein she offered the description of a black male who approached the home of the victim on Wednesday, January 23rd or Thursday, January 24th between the hours of 4:00 and 4:30 p.m. Appellant contends that this man had the opportunity to murder Ms. English and, as such, this information should have been disclosed to him. Yet, at trial, witness Judy Sperry testified that she was with the victim on Thursday, January 24th from 2:30 to 5:45 p.m. Time of death was established as occurring sometime between midnight and 6:00 a.m. on Friday, January 25th. Thus, the existence of a man approaching Ms. English's house on January 23rd or 24th, well before the time of death, contrary to appellant's assertions, cannot be considered exculpatory nor material. (2) Appellant next contends that a police statement given by Judy Sperry wherein she stated that Ms. English was apprehensive of a male that was taking medication for some type of mental disorder, and that he had a brother who was also in prison was also wrongfully withheld. Ms. Sperry later identified the person taking the medication as Paul. Appellant does not state in what -14- manner these statements are exculpatory and our review of these statements does not support that they are so. To the contrary, Ms. Sperry told investigators that Ms. English was apprehensive about two individuals. One named Paul who has been treated for various mental disorders in the past and a brother of Paul that had been in prison. Appellant does have a brother Paul who was determined to be in a mental facility at the time of the investigation. If anything, this information would be anything but beneficial to appellant's case. (3) Cathy Curry gave two statements to the police that appellant claims were not disclosed. In these statements, Ms. Curry stated that Ms. English had made a cake for Ms. Curry's husband, Jackie Curry, on Wednesday, January 23rd and that evidence of the making of the cake was found in the trash. Appellant claims that if evidence of cake-making from one to two days prior to the murder was still present, then his cigarette butts also found in the victim's trash were also likely to be present in the trash from the same time period, thereby supporting his contention that he was at Ms. English's home several days before the murder. We fail to see how this evidence would exculpate appellant. Moreover, as testified by the detective who interviewed appellant, appellant denied having seen the victim for several months, not several days, before the murder. (4) Appellant contends that Janet English, the victim's daughter, gave two statements to the police, one of which was not disclosed. The state counters that only one statement was made and -15- that appellant was given the opportunity to review this statement. A careful review of appellant's evidence in support of the existence of two statements does not reveal the existence of a second statement. Thus, we find no suppression of evidence by the prosecution on this issue. (5) Appellant claims that the state withheld the identity of a neighbor who told the police that a light blue car was in the victim's driveway on Thursday, January 24th and that the front porch light was on an indeterminate period of time. Judy Sperry testified at trial that she was at the victim's home on that day and that she owns a light blue car, the very same that was identified by the neighbor. As before, we find nothing exculpatory about this evidence. (6) Appellant next contends that a taped interview with appellant's wife, Elda Allen, wherein she recants a story that would have supported appellant's original alibi, was also not disclosed. Elda Allen at first told police about a rendevous with appellant at a local motel but later recanted this story upon learning of appellant's arrest. Appellant now claims that Elda Allen's true version of events supports appellant's real alibi, that he was out drinking the night of the murder, and that Elda only told the motel story as a cover for his drinking episode of which his parents would disapprove. Elda's recantation, appellant contends, supports his real alibi and is exculpatory. We do not find a lie by appellant's wife to be exculpatory or otherwise beneficial to his case. -16- (7) Appellant claims that statements by the owner of the Italian Cafe and its bartender were not disclosed. These statements stated that appellant was a regular customer and that on one occasion, appellant was cut-off because he was intoxicated. This evidence, appellant contends, supports appellant's alcohol abuse and could have been used to support the psychologist's testimony at mitigation. We do not find this evidence to have any material mitigatory effect. Merely because appellant was a regular customer and was intoxicated on one occasion does not equate with alcohol abuse. Moreover, other evidence of alcohol abuse was presented from which the trial court could consider its mitigatory effect. (8) Judith Kukla gave a police statement that appellant claims was not disclosed. In this statement she reported that the victim had told her of a man that wanted to marry the victim and Ms. Kukla thought that this man may have been appellant. Appellant also claims that the statement of Linda Lawver, a former girlfriend, was also withheld. In this statement, Ms. Lawver related that appellant may have been involved in the ransacking of an apartment they shared. Appellant claims that these statements mirror the abnormal relationships in appellant's life and would have been instrumental during the mitigation phase. Again, we find nothing exculpatory about these statements. Ms. Kukla could not identify the man with matrimonial intentions and merely speculated that that man may have been appellant. Moreover, the fact that appellant formed unhealthy relationships -17- with women was presented during trial and cannot now be considered to be material so as to affect appellant's guilt or punishment. (9) Appellant likewise claims that the preliminary report of Dr. Santiscoy was wrongfully withheld. Appellant concedes that the doctor's final report was disclosed but that the preliminary report would have provided useful impeachment evidence to challenge his testimony at trial, especially his conclusion as to the time of death. While the Bagley court noted that impeachment evidence also falls within the Brady rule, a finding of materiality also is required. 473 U.S. at 676. Here, a review of appellant's evidence supports that the preliminary report was a verbal conversation which was later disclosed in the form of the final report that appellant received. Consequently, we find nothing material about a preliminary report that is later reduced into final form and ultimately disclosed. (10) Appellant next contends that a taped statement from appellant's mother, Elsie Allen, was not disclosed. Although the significance of this evidence was not determined by appellant, we do not find that appellant's evidence on this particular issue to support that an interview took place or that the contents of that interview would have affected the outcome of trial. Consequently, we find no improper suppression. In summary, appellant's claims and supporting evidence do not convince this court that there is a reasonable probability that, had the above evidence been disclosed to the defense, the result of -18- the proceeding would have been different. Consequently, appellant's first claim for relief is without merit. B. In appellant's second, fourth and fifth claims for relief, appellant contends that he was denied effective assistance of counsel. Specifically, he argues that counsel was ineffective in several regards; namely, (1) the manner in which counsel challenged the victim's time-of-death; (2) counsel's failure to effectively utilize expert psychological evidence, and (3) the manner in which counsel handled several evidentiary issues. We find that further consideration of these issues are barred by the doctrine of res judicata as these arguments were all raised and considered on direct appeal. C. In his third claim for relief, appellant claims that the trial court judge was not fair and impartial because the judge denied appellant's requests for psychological experts and mitigation investigators. We find that this issue was raised and ruled on in appellant's application to disqualify the trial court judge. Moreover, it was raised and considered on direct appeal. D. Appellant's seventh and eighth claims for relief challenge the proportionality review conducted by the trial court. Specifically, appellant argues that the proportionality review process is tilted -19- toward death under both the state statutory framework and federal constitutional grounds. Again, this was raised and considered on direct appeal and, as such is barred by res judicata. Moreover, challenges to the proportionality review process on either basis have been summarily rejected by this state's highest court. See State v. Moore (1998), 81 Ohio St.3d 22, 39 (state statutory challenge) and 41-42 (federal constitutional challenge). E. In his sixth and ninth claims for relief, appellant attacks the constitutionality of Ohio's death penalty scheme. Not only were these issues raised and addressed on direct appeal, the Supreme Court of Ohio has, as above, summarily rejected such challenges. Moore, supra at 39. V. In conclusion, while we are disconcerted by the events as they unfolded during the review of appellant's petition, we do not find that the trial court erred in denying the relief requested. 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. TIMOTHY E. McMONAGLE PRESIDING JUDGE JAMES D. SWEENEY, J. and MICHAEL J. CORRIGAN, 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 .