COURT OF APPEALS OF OHIO, EIGHTH DISTRICT COUNTY OF CUYAHOGA NO. 72920 STATE OF OHIO : : : JOURNAL ENTRY PLAINTIFF-APPELLEE : : AND v. : : OPINION WILEY DAVIS, JR. : : : DEFENDANT-APPELLANT : DATE OF ANNOUNCEMENT OF DECISION: OCTOBER 8, 1998 CHARACTER OF PROCEEDING: Civil appeal from Common Pleas Court, No. CR-275129. 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: John P. Parker, Esq. The Brownhoist Building 4403 St. Clair Avenue Cleveland, OH 44103 TIMOTHY E. McMONAGLE, J.: Petitioner-appellant Wiley Davis, Jr. ( appellant ) appeals the decision of the trial court wherein his petition for post- conviction relief brought pursuant to R.C. 2953.51 was denied -2- without benefit of an evidentiary hearing. Finding no reversible error in the proceedings below, we affirm. A review of the record on appeal reveals that Amy Perkins was kidnapped, robbed and murdered on November 26, 1991. Appellant was charged with these crimes and after a jury trial, was convicted of two counts of aggravated murder, kidnapping, aggravated robbery, and the death penalty specifications attached to each aggravated murder count. The jury returned the recommendation of a death sentence and, on June 1, 1992, the court sentenced appellant to death. Appellant, represented by different counsel, brought a direct appeal of his conviction and sentence, in which this court affirmed his convictions and sentence but vacated the annual imposition of solitary confinement. State v. Davis (June 8, 1995), Cuyahoga App. No. 64270, unreported. The Supreme Court of Ohio affirmed appellant's sentence and conviction, but merged his two murder convictions so that only one death sentence remained and vacated his conviction on the attempted rape specification. State v. Davis (1996), 76 Ohio St.3d 107. Subsequently, appellant filed a petition and amended petition requesting post-conviction relief pursuant to R.C. 2953.21, asserting fourteen claims. In support of his petition, appellant appended his personal affidavit and the affidavits of Dr. Sandra McPherson, six family members or friends, his trial counsel, and Ken Murray, Esq., a legal expert. In response to the petition, the state moved for dismissal. On June 12, 1997, the trial court granted the state's motion to dismiss appellant's petition and ordered the parties to submit proposed -3- findings of fact and conclusions of law. On June 30, 1997, the trial court issued Findings of Fact and Conclusions of Law in which it denied appellant's petition without hearing, finding no substantial grounds for post-conviction relief exist. Appellant timely appeals this decision and advances eighteen assignments of error for our review. I. THE TRIAL COURT ERRED WHEN IT FAILED TO CONDUCT AN EVIDENTIARY HEARING ON THE APPELLANT'S PETITION FOR POST-CONVICTION RELIEF IN VIOLATION OF STATE V. SWORTCHECK (1995),101 OHIO APP.3D 770 AND IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION. II. THE APPELLANT WAS DENIED DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, DENIED EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT AND WAS SUBJECTED TO CRUEL AND UNUSUAL PUNISHMENT PROHIBITED BY THE EIGHTH AMENDMENT WHEN TRIAL COUNSEL FAILED TO PRESENT AVAILABLE MITIGATION EVIDENCE. III. THE TRIAL COURT ERRED IN FINDING THAT RES JUDICATA BARRED THE APPELLANT'S CONTENTION THAT HE WAS PREJUDICED BY THE JURY IMPROPERLY WEIGHING THE AGGRAVATED CIRCUMSTANCE OF ATTEMPTED RAPE WHEN THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT SUCH SPECIFICATION IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION. IV. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY DENYING HIM THE OPPORTUNITY TO CONDUCT DISCOVERY IN VIOLATION OF THE OHIO RULES OF CIVIL PROCEDURE AND THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION. V. THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN IT DENIED HIS MOTION FOR APPOINTMENT OF EXPERTS IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION. -4- VI. LOCAL RULE 22(E) VIOLATES THE OHIO AND U.S. CONSTITUTIONS AND THE TRIAL COURT WRONGLY FOUND IT TO BE CONSTITUTIONAL AND ABUSED ITS DISCRETION IN DENYING COUNSEL LEAVE TO INTERVIEW THE JURORS AND ALTERNATE JURORS IN VIOLATION OF THE FEDERAL AND OHIO CONSTITUTIONS. VII. THE TRIAL COURT ABUSED ITS DISCRETION AND IN THE ALTERNATIVE DENIED THE APPELLANT A NEUTRAL AND DETACHED MAGISTRATE AS GUARANTEED BY THE FEDERAL AND OHIO CONSTITUTIONS BY ORDERING THE PARTIES TO SUBMIT FINDINGS OF FACT AND CONCLUSIONS OF LAW. VIII. THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HE WAS DENIED THE OPPORTUNITY TO PRESENT EVIDENCE OF THE MITIGATING FACTOR OF APPELLANT'S GOOD BEHAVIOR AND SUCCESSFUL ADJUSTMENT TO PRISON LIFE DURING HIS INCARCERATION IN VIOLATION OF THE FEDERAL AND OHIO CONSTITUTIONS. IX. THE APPELLANT'S CONVICTION AND SENTENCE IS UNCONSTITUTIONAL BECAUSE THE OHIO STATUTORY SCHEME IS DEFICIENT ON ITS FACE AND AS APPLIED TO THE APPELLANT IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION. X. THE APPELLANT WAS DENIED HIS RIGHT TO COUNSEL WHEN APPOINTED COUNSEL FAILED TO INFORM THE COURT THAT THE APPELLANT DESIRED A CHANGE IN COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION. XI. THE APPELLANT WAS DENIED DUE PROCESS AND HIS RIGHT TO COUNSEL PURSUANT TO THE FEDERAL AND OHIO CONSTITUTIONS WHEN THE TRIAL COURT FAILED TO CONDUCT A HEARING ON THE APPELLANT'S WRITTEN REQUEST FOR NEW COUNSEL. XII. THE APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS, COMPULSORY PROCESS AND RIGHT TO COUNSEL AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH -5- AMENDMENTS OF THE FEDERAL CONSTITUTION WHEN TRIAL COUNSEL FAILED TO SUBPOENA THE LOG BOOK MAINTAINED BY THE SECURITY GUARD AT THE LOBBY OF THE BLUE CROSS AND BLUE SHIELD BUILDING. XIII. THE APPELLANT WAS DENIED HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS WHEN THE STATE WITHHELD EXCULPATORY EVIDENCE. XIV. THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AND DUE PROCESS UNDER THE SIX[TH] AND FOURTEENTH AMENDMENTS WHEN COUNSEL PLACED PREJUDICIAL INFORMATION BEFORE THE SENTENCING JUDGE BEFORE THE COURT IMPOSED THE DEATH SENTENCE. XV. THE APPELLANT WAS DENIED HIS RIGHTS DUE TO THE FACT THAT THE OHIO DEATH PENALTY IS UNCONSTITUTIONAL ON ITS FACE AND AS APPLIED TO THE APPELLANT. XVI. THE APPELLANT WAS DENIED MEANINGFUL PROPORTIONAL APPELLATE REVIEW OF HIS DEATH SENTENCE IN THE OHIO COURTS IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS OF THE FEDERAL CONSTITUTION. XVII. THE APPELLANT'S DEATH SENTENCE BY ELECTROCUTION VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION. XVIII. THE CUMULATIVE EFFECT OF THE ERRORS CONTAINED IN THIS APPEAL HAVE DENIED THE APPELLANT HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS OF THE FEDERAL CONSTITUTION. A. Ineffective Assistance of Counsel Appellant's first, second, eighth and fourteenth assigned errors, having a common basis in law, shall be considered together. In these assigned errors, appellant contends that his conviction is void or voidable because he was denied effective -6- assistance of counsel during the penalty phase of his trial as demonstrated by the evidence appended to his petition and submitted dehorsthe record. Appellant supported his petition with his own affidavit and those of Dr. Sandra McPherson, six family members or friends, his trial counsel, and that of Ken Murray, a legal expert. Appellant asserts in these assigned errors that this evidencesubmitted dehors the record is sufficient to demonstrate ineffective assistance of trial counsel and the trial court erred in failing to conduct an evidentiary hearing on the matter. In his first assigned error, appellant, in reliance on State v. Swortcheck (1995), 101 Ohio App.3d 770, contends that the affidavits submitted to support his claims offered prima facie evidencethat his trial counsel was ineffective at the mitigation phase of his trial and that the trial court erred when it failed to conduct an evidentiary hearing upon his petition. In his second assigned error, appellant contends he was denied effective assistance of counsel and subjected to cruel and unusual punishment because his trial counsel failed to present evidence of a pre-existing significant biologic and genetic brain structure as supported by the affidavit of Dr. Sandra McPherson; failed to call certain family members and friends to testify on his behalf as supported by their affidavits; failed to prepare appellant for his unsworn statement as supported by his own affidavit; and failed to visit appellant frequently enough in jail in order to develop a meaningful attorney-client relationship as supported by the affidavit of Ken Murray, his legal expert. In his eighth -7- assignment of error, appellant contends that he was denied effective assistance of counsel because counsel failed to introduce evidence of his good behavior during his incarceration, as supported by the report of Dr. Sandra McPherson submitted dehors the record. In his fourteenth assigned error, in reliance on the expert legal report dehors the record, appellant contends that he was prejudiced and was denied effective assistance of counsel as a result of counsel's statements to the judge that the appellant's independent, ballistic expert would not testify as he could only corroborate the state's evidence and that counsel told the judge that the state had a handwritten note connecting the appellant with the alleged fabricated alibi. We find appellant's assertion that the affidavits present prima facie evidence of ineffective assistance of his trial counsel to be without merit. It is well-settled that a petition for post-conviction relief brought pursuant to R.C. 2953.21 will be granted only where the denial or infringement of constitutional rights is so substantial as to render the judgment void or voidable. State v. Walden (1984), 19 Ohio App.3d 141, 146. Under the doctrine of res judicata, a final judgment of conviction bars a defendant who had counsel from raising and litigating in any proceeding, except in an appeal from that 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. State v. Perry (1967), 10 Ohio St.2d 175, paragraph nine of the syllabus. Absent a showing of an abuse of discretion, a reviewing court will not overrule a trial court's -8- findings on a petition for post-conviction relief which is supported by competent and credible evidence. State v. Mitchell (1988), 53 Ohio App.3d 117, 119. Abuse of discretion connotes more than an error of law or of judgment; it implies that the court's attitude is unreasonable, arbitrary or unconscionable. State v. Adams (1980), 62 Ohio St.2d 151, 157; State v. Keenan (1998), 81 Ohio St.3d 133, 137. Hearing on a petition for post-conviction relief is governed by R.C. 2953.21(C), which provides in pertinent 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. A criminal defendant seeking to challenge his conviction through a petition for post-conviction relief is not automatically entitled to such a hearing. State v. Cole (1982), 2 Ohio St.3d 112; State ex rel. Jackson v. McMonagle (1993), 67 Ohio St.3d 450. The trial court has a statutorily imposed duty to ensure that the petitioner adduces sufficient evidence to warrant a hearing. R.C. 2953.21(C); State v. Cole (1982), 2 Ohio St.3d 112, 113; see, also, State v. Kapper (1983), 5 Ohio St.3d 36; State v. Carpenter (1996), 116 Ohio App.3d 292, 295. A petition for post-conviction relief may be dismissed without a hearing when the petitioner fails to submit with his petition evidentiary material setting -9- forth sufficient operative facts to demonstrate substantive grounds for relief. State v. Jackson (1980), 64 Ohio St.2d 107; Apanovitch, supra at 98; State v. Shugar (May 21, 1992), Cuyahoga App. No. 62536, unreported. The test to be applied is whether there are substantive grounds for relief that would warrant a hearing based upon the petition, the supporting affidavits and the files and records of the case. State v. Strutton (1988), 62 Ohio App.3d 248, 251; State v. Swotcheck, supra at 772. Moreover, where the petitioner asserts a claim of ineffective assistance of counsel, he bears the initial burden to submit evidence to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness. Until he has done so, no evidentiary hearing is required. State v. Panky (1981), 68 Ohio St.2d 58. The standards governing claims of ineffective assistance of counsel under the federal and Ohio constitutions are well established and essentially the same. Strickland v. Washington (1984), 466 U.S. 668; State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the syllabus. To demonstrate ineffective assistance of counsel sufficient to warrant reversal of a conviction by a jury, the defendant must show both that trial counsel's performance was deficient and that deficiency resulted in prejudice as there is a reasonable probability that, but for trial counsel's errors, the outcome would have been different. Bradley, id. at paragraph three of the syllabus; State v. Mitts (1998), 81 Ohio St.3d 223, 234. It is well settled that a properly licensed attorney is presumed -10- competent. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299. In order to overcome this presumption, the petitioner must submit sufficient operative facts or evidentiary documents which, if proven, would show that the petitioner was prejudiced by said ineffective assistance. State v. Smith (1987), 36 Ohio App.3d 162. A reviewing court will not second guess what could be a matter of trial strategy. State v. Smith (1985), 17 Ohio St.3d 98. With these legal standards in mind, we review the claims asserted by appellant. First, appellant complains that counsel was ineffective during the mitigation phase of his trial when counsel failed to introduce mitigating evidence. Appellant submits that the report of Dr. Sandra McPherson indicating both his personality disorder and his good behavior during incarceration and the affidavit testimony of his family members and friends present mitigating evidence not offered by trial counsel, thereby demonstrating counsel's ineffective assistance during the penalty phase. Mitigation factors to be considered by the jury are governed by R.C. 2929.04(B), which provides in pertinent part: (1) Whether the victim of the offense induced or facilitated it; (2) Whether it is unlikely that the offense would have been committed, but for the fact that the offender was under duress, coercion, or strong provocation; (3) Whether, at the time of committing the offense, the offender, because of a mental disease or defect lacked substantial capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law; (4) The youth of the offender; -11- (5) The offender's lack of significant history of prior criminal convictions and delinquency adjudications; (6) If the offender was a participant in the offense but not the principal offender, the degree of the offender's participation in the acts that led to the death of the victim; (7) Any other factors that are relevant to the issue of whether the offender should be sentenced to death. Appellant, in reliance on Glenn v. Tate (1995), 71 F.3d 1204, asserts that counsel's failure to introduce the report of Dr. Sandra McPherson which indicates that appellant had a personality disorder with narcissistic and borderline features is reversible error. We find appellant's reliance on Tate to be misplaced. In Tate the mitigating evidence omitted by counsel indicated Tate's mental retardation, a deficiency tending to show that Tate lacked the substantial capacity necessary for intent, a mitigating factor as provided in R.C. 2929.04(B)(3). However, in the matter sub judice, there is no evidence that appellant lacked substantial capacityso as to warrant consideration of Dr. McPherson's report pursuant to R.C. 2929.04(B)(3). A behavior or personality disorderdoes not qualify as a mental disease or defect. State v. Lorraine (1993), 66 Ohio St.3d 414; State v. Richey (1992), 64 Ohio St. 3d 353. Both this evidence regarding appellant's personality disorder and the report of appellant's good behavior during his incarceration could qualify as mitigating only pursuant to R.C. 2929.04(B)(7), any other factor. We acknowledge the fact that personality disorders are not considered substantial mitigating factors as many criminals have personality disorders. See State v. Richey, supra at 372; State -12- v. McGuire (1997), 80 Ohio St.3d 390. Moreover, personality disorders only carry minimal weight as a mitigating factor. State v. Palmer (1997), 80 Ohio St. 543; State v. Biros (1997), 78 Ohio St.3d 426. Similarly, the defendant's adaption to prison life only carries minimal weight in mitigation. State v. Allard (1996), 75 Ohio St.3d 502. In addition, appellant contends counsel failed to introduce testimony from his family and friends. The affidavits submitted from friends and family of appellant each demonstrate that these individuals, if given the opportunity during the penalty phase of the trial, would have testified that appellant had a troubled childhood or they would have asked for mercy for appellant. Such testimony could be admitted as mitigating pursuant to R.C. 2929.04(B)(7). However, evidence of a traumatic family life does not demonstrate a theory of mitigation. State v. Steffen (1987), 31 Ohio St.3d 111; State v. Williams (1991), 74 Ohio App.3d 686, 695. Moreover, background, history and character may be given very little weight in mitigation. State v. Stumpf (1987), 32 Ohio St.3d 95; State v. Fox (1994), 69 Ohio St.3d 183. We note that other unspecified mitigation evidence carries little weight within the analysis required by R.C. 2929.03. State v. Waddy (1992), 63 Ohio St.3d 424; State v. Webb (1994), 70 Ohio St.3d 325, 342-343. In summary, upon review of the affidavits submitted to support appellant's contentions that his counsel was ineffective for failure to introduce mitigating evidence, we find that: (1) Dr. McPherson's opinion does not support a theory to be considered -13- in mitigation pursuant to R.C. 2929.04(B)(3) and could only be introduced pursuant to R.C. 2929.04(B)(7); and (2) the affidavits of family and friends indicate appellant's troubled childhood and that they would merely have asked for mercy. Consequently, we find that the evidence, which appellant complains his trial counsel chose to keep from the jury in error, was, in fact, information which would only carry minimal mitigating weight. The fact that an item of evidence is admissible under R.C. 2929.04(B)(7) does not automatically mean that it must be given any weight. State v. Steffen (1987), 31 Ohio St.3d 111, paragraph two of the syllabus; State v. Mitts (1998), 81 Ohio St.3d 223, 235. Therefore, from the record it can be reasonably concluded that trial counsel were well aware of the opinion of Dr. McPherson but deemed this avenue of defense unworthy of further pursuit as a matter of trial strategy. The record reveals that trial counsel, through a full-time investigator, interviewed and took statements from approximately fifty individuals and determined that the evidence presented during the mitigation phase was the evidence which they believed they could safely put on. We do not see that the decision of trial counsel to omit testimony of various family members and friends relating circumstances of appellant's difficult childhood and their pleas for mercy in support of mitigation pursuant to R.C. 2929.04(B)(7) constitutes deficient performance on their part. Therefore, we need not reach the question of whether there is a reasonable probability that, but for counsel's failure, the outcome would have been different. -14- See Strickland v. Washington (1984), 466 U.S. 668. Even so, considering the weight of the aggravating factors and the little weight which could be afforded this evidence as presented by appellant, it could not be said that had this information been placed before the jury the outcome would have been different. Second, appellant contends that trial counsel was ineffective during the penalty phase of the trial both for their failure to prepare him for his unsworn statement and for their comments to the sentencing judge which appellant contends were prejudicial to him. Appellant bears the burden of submitting supporting evidentiary documents outside the record which contain sufficient facts to demonstrate both the lack of competent counsel and the resulting prejudice to the defense in alleging the ineffectiveness of trial counsel occurring dehors the record. State v. Jackson (1980), 64 Ohio St.2d 107, 111. The doctrine of res judicata bars the assertion of any claim which was raised or could have been raised on appeal without resort to evidence outside the record. State v. Perry (1967), 10 Ohio St.2d 175. Appellant, having different counsel on appeal, could have raised these claims on direct appeal. Having failed to do so, appellant's claims are waived and barred by the doctrine of res judicata in appellant's petition. Perry, supra. Third, appellant asserts that the evidence presented outside the record was sufficient to warrant a hearing. Sufficient prima facie evidence demonstrating ineffective assistance of counsel for failure to present mitigating evidence to warrant a hearing on -15- appellant's motion would require that the affidavits presented facts to show both the availability of mitigating evidence and trial counsel's failure to attempt to obtain the mitigating evidence. See Swortcheck, supra; State v. Scott (1989), 63 Ohio App.3d 304, 307. In this case, we find that appellant has failed to present sufficient evidence dehors the record to demonstrate substantive grounds for relief to warrant a hearing based upon his petition. The supporting affidavits are insufficient to demonstrate ineffectiveness of trial counsel for their failure to present the claimed evidence during the mitigation phase of the trial. Here, unlike the facts as found in Swortcheck, supra, the record reflects that the affidavits do not contain both evidence of the availability of mitigating evidence and the failure of trial counsel to attempt to obtain this mitigating evidence. In fact, in the record we find evidence that trial counsel conducted an extensive investigation in preparation for the penalty phase of the trial. Finally, we find appellant's allegation of ineffective assistance of trial counsel based upon his counsel's failure to prepare him adequately for his unsworn statement and counsel's commentsto the trial judge before sentencing to be res judicata. In view of the fact that appellant had the assistance of two experienced trial attorneys and mindful that a reviewing court will not second guess what are essentially matters of trial strategy, neither the record nor the evidence provided dehors the -16- record supports appellant's claim of ineffective assistance of counsel. Accordingly, we find appellant has failed to demonstrate that his trial counsel was ineffective and we see the evidence submitted dehors the record as failing to present prima facie evidence of ineffective assistance of counsel warranting a hearing pursuant to the statute. Upon review of the petition, the affidavits, the files and records of this case including the transcripts of all the proceedings, we find appellant has presented no substantive grounds for relief which would warrant a hearing on the matter. We conclude that the trial court did not abuse its discretion when it dismissed appellant's challenge to his trial counsel's effectiveness without a hearing. Appellant's first, second, eighth and fourteenth assignments of error are without merit. B. Aggravating Circumstances v. Mitigating Factors In his third assigned error, appellant contends that the trial court erred in determining that res judicata barred his claim of prejudice by the jury when the jury was permitted to weigh the aggravated circumstance of attempted rape where there was insufficient evidence to support that specification. Specifically, appellant contends that the jury weighed three aggravating circumstances where only two aggravating circumstances were supported by the evidence. -17- The Ohio Supreme Court in State v. Davis (1996), 76 Ohio St.3d 107, re-weighed the remaining aggravating circumstances against the mitigating factor and stated at 121-122: Davis was convicted of two valid death specifications: kidnapping and aggravated robbery. Because these outweigh the mitigating factor beyond a reasonable doubt, we find the death sentence is appropriate. Where the petition for post-conviction relief asserts issues which were reviewed on direct appeal, the application of res judicata is properly applied. State v. Szefcyk (1996), 77 Ohio St.3d 93, syllabus. The Supreme Court having adjudicated this issue on direct appeal pursuant to the directive of Clemons v. Mississippi (1990), 494 U.S. 738 and State v. Combs (1991), 62 Ohio St. 3d 278, the trial court properly found appellant's claim barred by the doctrine of res judicata. Appellant's third assignment of error is without merit. C. Denial of Discovery In his fourth assignment of error, appellant contends that he was denied both the opportunity and the funds to conduct discovery depositions of his trial counsel in order to demonstrate that their decisions were not a product of sound trial strategy. The record reveals that on May 12, 1997, appellant moved for an order to take the depositions of trial counsel in order to support his claim of ineffective assistance of trial counsel for their failure to properly investigate and present mitigation evidence in order to overcome the presumption that this failure was in fact trial strategy. -18- Although a petition for post-conviction relief is a civil proceeding, the procedure to be followed in ruling on such a petition is established by R.C. 2953, et seq. State v. Smith (1986), 30 Ohio App.3d 138, 139. The initial burden of the petitioner is to submit evidentiary documents containing sufficient operative facts to demonstrate his claim and merit a hearing. State v. Kapper (1983), 5 Ohio St.3d 36. While we are sympathetic to appellant's appeal for discovery prior to a dismissal of his petition for post-conviction relief, we are constrained to follow the precedent as established in our decision as stated in State v. Lott (Nov. 3, 1994), Cuyahoga App. Nos. 66388, 66389, 66390, unreported. In Lott, we held that appellant was not entitled to conduct discovery under the rules of civil procedure in a post-conviction relief proceeding. Id. at 12. The trial court is not required to order discovery before determining whether there are substantive grounds for relief so that a hearing must be granted. Smith, supra at 140. Accordingly, we find no error in the trial court's denial of appellant's motion to take depositions of his trial counsel. Appellant's fourth assignment of error is without merit. D. Funds for Expert Assistance In his fifth assigned error, appellant complains that the trial court erred when it failed to authorize the hiring of his experts, Sandra McPherson, Ph.D. and Ken Murray, Esq. The record reveals that on February 14, 1997 appellant filed a motion for appropriation of funds for expert assistance of the legal expert, -19- Ken Murray, and the mitigation expert, Dr. Sandra McPherson, to support his claims of ineffective assistance of counsel as made in his petition for post-conviction relief. Further, in this motion, appellant requested an ex parte hearing on this request pursuant to the authority of Ake v. Oklahoma (1985), 470 U.S. 68. The record reflects that appellant's motion was granted by entries made on February 14, 1997 and February 20, 1997. Accordingly, we find appellant's fifth assignment of error to be without merit. E. Violation of Constitutional Free Speech and Assembly Rights In his sixth assignment of error, appellant contends that Loc.R. 22(E) violates the Ohio and U.S. Constitutions as a prior restraint on free speech and violates his freedom to assemble. Specifically, appellant argues that the trial court erred in finding Loc.R. 22(E) constitutional and in denying him the right to interview the jurors and alternate jurors. Local Rule 22(E) provides: No attorney connected with the trial of an action shall himself or through any investigator or other person acting for him, interview, examine or question any juror with respect to the verdict or deliberation of the jury in the action except on leave of Court granted upon good cause shown. In Tasin v. SIFCO Industries, Inc. (1990), 50 Ohio St.3d 102, Loc.R. 22 was attacked on constitutional grounds alleging that this rule amounted to a prior restraint on free speech. The Tasin court, analyzing the rule as it affects First Amendment rights under the U.S. Constitution, held that a local rule which prohibits post-trial communication between parties or their -20- counsel and jurors without leave of court, for the purpose of investigating the validity of the verdict is not an unconstitutional restraint on freedom of speech. Tasin, id. at 108. Appellant asserts that Tasin applies only to the U.S. constitutional challenge. However, the Ohio Free Speech clause is no broader than the U.S. Constitution and the case law of the First Amendment is a proper basis for interpreting Ohio's free speech clause. Eastwood Mall, Inc. v. Slanco (1994), 68 Ohio St.3d 221. Therefore, we find appellant's argument to be without merit. We do not find the Local Rule to be a prior restraint on appellant's freedom of speech whether it is claimed pursuant to the Ohio or the U.S. Constitution. Moreover, we do not see, nor has appellant shown, a violation of appellant's freedom to assemble. Accordingly, we find appellant's sixth assignment of error to be without merit. F. Right to a Neutral Magistrate In his seventh assignment of error, appellant contends that the trial court abused its discretion and denied him the opportunity of a neutral and detached magistrate where the trial court ordered the submission by the parties of proposed findings of facts and conclusions of law. Specifically, appellant contends that it is the duty of the court, as a detached magistrate, to make such findings pursuant to R.C. 2953.21. A court may comply with R.C. 2953.21(C) by adopting findings of fact and conclusions of law as submitted by a party. State v. Sowell (1991), 73 Ohio App.3d 672. Moreover, under the Civil -21- Rules, the trial court may adopt the findings of fact and conclusions of law submitted by the parties. Adkins v. Adkins (1988), 43 Ohio App.3d 95. Consequently, we find that whether the findings of fact and conclusions of law were requested and adopted in accordance with Civ.R. 52 or to comply with R.C. 2953.21(C), the trial court did not err in allowing the parties to submit proposed findings of fact and conclusions of law and the court had the right to adopt such findings of fact and conclusions of law as its own. Appellant's seventh assignment of error is without merit. G. Constitutional Challenges In assignments of error nine, fifteen, sixteen and seventeen, appellant asserts that his conviction and sentence violate his various rights as guaranteed to him by the Constitution. Specifically, appellant contends that Ohio's statutory scheme is deficient both on its face and as applied to him; the Ohio death penalty is unconstitutional on its face and as applied to him; and that he was denied meaningful proportional appellate review. On direct appeal, in his seventeenth assignment of error, appellant challenged the Ohio Capital Sentencing Scheme as unconstitutional. As such, appellant's claims regarding the constitutional issues were either presented on direct appeal or could have been brought on direct appeal, and consequently are waived or barred by the doctrine of res judicata. Perry, supra. Further, appellant'sargument that the statute is unconstitutional and/or imposes cruel and unusual punishment has been consistently rejectedby the Ohio Supreme Court. State v. Lott (1990), 51 Ohio -22- St.3d 160; State v. Davis (1988), 38 Ohio St.3d 361. Therefore, we summarily reject this argument. State v. Steffen (1987), 31 Ohio St.3d 111, paragraph one of the syllabus. Finally, challenges to the proportionality review process have been summarily rejected by the Ohio Supreme Court. State v. Moore (1988), 81 Ohio St.3d 22; State v. Wickline (1990), 50 Ohio St.3d 114; Steffen, supra, paragraph one of the syllabus. Accordingly, we find appellant's ninth, fifteenth, sixteenth and seventeenth assignments of error to be without merit. H. Right to Counsel In his tenth and eleventh assigned errors, appellant complains that he was denied his right to counsel both when his appointed counsel failed to inform the court that he desired a change in counsel and when the trial court failed to conduct a hearing on his written request for new counsel. Appellant, represented by new counsel on appeal, failed to raise these claims in his direct appeal and they are now waived and barred by the doctrine of res judicata. Perry, supra. Moreover, appellant presented only self-serving allegations in his affidavit and failed to demonstrate that, but for the deficiencies of his counsel, the outcome would have been different. Strickland v. Washington, supra. Accordingly, appellant's tenth and eleventh assignments of error are without merit. I. Exculpatory Evidence Omitted Appellant in his twelfth and thirteenth assigned errors contends that he was denied his rights to due process, to -23- compulsory process and to counsel when trial counsel failed to subpoena the Blue Cross/Blue Shield log book; and, in addition, appellant complains that this failure amounts to a withholding of exculpatory evidence by the state. The law of this state requires a prosecuting attorney upon motion of 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. The suppression by the prosecution of evidence is material either to guilt or to punishment irrespective of the good or bad faith of the prosecution. Bradyv. Maryland (1963), 373 U.S. 83, 87; State v. Johnston (1988), 39 Ohio St.3d 48, paragraph four of the syllabus. In determining whether the prosecution improperly suppressed evidence favorable to the accused, such evidence shall be deemed material only if there is reasonable probability that had the evidence been disclosed to the defense, the result of the proceeding would have been different. United States v. Bagley (1985), 473 U.S. 667, 682. A reasonable probability is a probability sufficient to undermine the confidence in the outcome. Id. This standard of materiality applies regardless of whether the evidence is specifically, generally, or not all requested by the defense. State v. Johnston, supra, paragraph five of the syllabus. -24- This issue could have been raised on direct appeal and is, therefore, waived and barred by the doctrine of res judicata. Perry, supra. Further, appellant failed to show both that this evidence was material and that had this evidence been disclosed the result of the proceedings would have been different. U.S. v. Bagley, supra. Accordingly, we find appellant's twelfth and thirteenth assigned errors to be without merit. J. Cumulative Errors In his eighteenth assigned error, appellant contends that his conviction and sentence must be reversed due to the cumulative effect of the preceding claimed errors. As this court has failed to find error in the previous errors as claimed, appellant's final assignment of error is without merit and is overruled. Judgment affirmed. -25- 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 KARPINSKI, 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 .