2022 Ohio 4723
Ohio2022Background
- In August 2001 a woman (M.K.) was kidnapped, robbed, and repeatedly raped; she later identified three assailants readily from photo arrays but gave only tentative, low-confidence identification of a fourth person until she saw Bunch’s photo in a newspaper and then became certain.
- Video surveillance placed a person with Bunch’s build at a nearby gas station; police apprehended three men from the car and a fourth (later identified as Bunch) fled on foot; DNA/fingerprint testing did not link Bunch to the rape kit (Moore’s DNA was found).
- At trial Bunch was convicted; one codefendant (Callier) testified identifying Bunch in exchange for a reduced sentence; Bunch’s trial counsel did not call an eyewitness-identification expert despite prior counsel having obtained funds to do so.
- Bunch filed a timely postconviction petition (first in 2003, amended 2017) alleging ineffective assistance for failing to retain an eyewitness-identification expert and attached an affidavit from Dr. Scott Gronlund explaining concepts like unconscious transference and the unreliability of later, high-confidence identifications.
- The trial court dismissed the petition without an evidentiary hearing (adopting the state’s proposed entry), and the Seventh District affirmed, treating counsel’s choice to rely on cross-examination as presumptively strategic.
- The Ohio Supreme Court reversed: it held that where eyewitness ID is the core of the prosecution’s case and the claim relies on evidence outside the record (expert affidavit), the petitioner pleaded sufficient operative facts to warrant an evidentiary hearing on ineffective assistance.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the trial court erred by denying a hearing on Bunch's postconviction claim that trial counsel was ineffective for not retaining an eyewitness-identification expert | Bunch: identity was central; expert evidence (unconscious transference, low-confidence initial ID) was necessary to impeach M.K. and could have created reasonable doubt; prior counsel had secured funds for an expert | State: relying on cross-examination was reasonable trial strategy; Callier’s corroborating ID and other evidence made any expert unlikely to change the outcome | Court: Reversed and remanded for an evidentiary hearing — alleged facts outside the record and the proffered expert affidavit were sufficient to raise a triable ineffective-assistance claim when eyewitness ID was central |
Key Cases Cited
- Strickland v. Washington, 466 U.S. 668 (establishes the two-part ineffective-assistance standard)
- State v. Milanovich, 42 Ohio St.2d 46 (1975) (standard for when a postconviction petition is sufficient on its face to warrant a hearing)
- State v. Nicholas, 66 Ohio St.3d 431 (1993) (on direct appeal, declining to second-guess counsel’s strategic choice not to call an expert)
- State v. Hartman, 93 Ohio St.3d 274 (2001) (direct-appeal context; counsel’s choice about DNA expert may be strategic)
- State v. Foust, 105 Ohio St.3d 137 (2004) (direct-appeal precedent on expert-strategy analysis)
- Hinton v. Alabama, 571 U.S. 263 (2014) (counsel’s failure to obtain competent expert where expert evidence is central can be deficient)
- State v. Herring, 142 Ohio St.3d 165 (2014) (failure to develop and present mitigation/expert evidence can require a hearing)
- State v. Calhoun, 86 Ohio St.3d 279 (1999) (trial court may dismiss a petition without hearing if record lacks sufficient operative facts to establish substantive grounds for relief)