*1 fаll upon taxpayers. Certainly students and the General Assembly had fact of life mind when it instituted the exemption. The Assembly General has determined that buildings used educate public colleges exempt
Ohioans at are from taxation. This court has previously determined that that exemption apply regardless should of the of owner buildings. But the an majority takes incidental fact from Perk makes it an 5709.07(A)(4) essential eligibility so, element of for exemption. doing R.C. In it ignores the intent of the statute and encumbers the mission community of colleges Ohio. JJ.,
Lanzinger concur. O’Neill, Luper, Logan, Anderson, Neidenthal Shah, & Matthew T. and M. Salman for appellees. DeWine, General, Attorney
Michael A. Barton Hubbard and D. David Eber- sole, General, Attorneys Assistant for Tax appellant Commissioner Ohio. L.L.C., Gillis,
Rich Group, & Gillis Law Mark Allison, H. and Kimberley G. appellants Dublin School City District Board Education and Columbus City School District Board of Education. Appellee. Ohio, Appellant, Herring, State Herring, State v.
[Cite as
Ohio
granting *2 finding court’s challenges appellate inmate. The state Herring, death-row failing properly in to ineffective assistance provided a new order of trial and the court’s decision mitigation phase for the prepare sentencing hearing. set appeals standards properly applied We hold that the court
{¶2}
2052,
I. Facts and five individu- Herring at trial showed other Evidence Inn, April after Newpоrt Youngstown, shortly midnight
als robbed the
a bar
till,
Three of the five
1996.
shot five
robbed the
and left.
They
people,
seriously
Herring,
and two
were
wounded. See State
victims died
others
(2002).
Ohio St.3d
participants gathered handguns Cobray a 9 mm Herring provided kept three the individuals with and mask, Herring at 246-247. semiautomatic for himself. Id. donned Halloween store-bought was similar one seen movies. No one which mask “slasher” mask; had a the others hid their faces with bandanas or a T-shirt. else similar at 247. Id. owner, Marinelli, tending night. Inn’s bar that Newport Ronald Sr., bar, Aziz, were in the Deborah Herman Naze including
Several customers Kotheimer, and Jimmie Lee Jones. Id. Dennis bar, Upon bursting gunmen “[g]ive into the one of the ordered Naze to
6}{¶ money, your money.” any me Id. When Naze stated he did not fucking Aziz, him. to the gunman Herring shot Then shot who fell floor. She away hide a cooler a trash can. later managed to crawl behind She “a like of those masks.” plastic, assailant’s mask as hard one Jason described her Id. bar approached then around the end of the Marinelli Herring walked Marinelli four times in the stomach from about register.
and the cash He shot closer. stay Herring on his feet as came away. managed five feet Marinelli Marinelli, money.” Herring your fucking Despite at 247. told “Give me Id. wounds, Marinelli the cash Id. at But obeyed, handing register. over him Herring given everything. Herring screamed that Marinelli had As out,” to “blow Marinelli him gave money threatened brains from [Marinelli’s] nearby drawer. then money. screamed more Marinelli him urged cool” responded leveling and told him that there no more. Herring “[b]e head. Id. gun Marinelli’s again Marinelli reached into the out a But pulled gun. drawer 8}{¶ that Herring easily Marinelli was so weak took it from him. away Marinelli said, motherfucker,” collapsed. Herring yet, then “You ain’t dead shot lay Marinelli he on the Id. legs as floor. Marinelli, Aftеr shot Aziz heard say, Kotheimer “You mother-
9}{¶ fucker.” Then Marinelli did get she heard more shots. saw Kotheimer shot but Nobody not see who shot him. saw who shot Jones. *3 arrival Following the of the the victims were to a police, shooting taken
{¶ 10} Naze, Jones, Youngstown hospital. and Kotheimer from Id. died their wounds. mitigation hearing Trial the II. results and trial, At Herring was convicted three to complicity counts of commit 11} {¶ murder, murder, aggravated attempted aggravated two counts of two counts aggravated robbery, 248-249, and firearm St.3d at 762 specifications. Ohio One, Jones, N.E.2d 940. As to Count the murder of not jury Herring the found as the guilty principal offender but as an also guilty accomplice. Herring was found guilty three course-of-conduct death-penalty specifications that were 2929.04(A)(5). counts, attached to each pursuant of the murder to R.C. 249. During hearing, presented showing
{¶ Herring’s that did not accomplices receive the death The also penalty. defense testimony Herring, mother, of Deborah the defendant’s and Nicole Herring, the defendant’s sister. Deborah that Herring testified has six brothers and sisters. She that
testified had a Herring good loving with his relationship siblings continues to stay Herring touch with them. helped helped with chores and care of take brothers younger growing and sisters when he was up. Deborah the jurors asked her son’s spare life. helped Nicole that Herring younger testified take care of brothers
{¶ 14} and sisters. She close relationship stated she had a Herring did they things together. Finally, numerous jury Nicole asked the her spare brother’s life. rebuttal, Franken, On Timothy assistant prosecuting attorney, testi- Jones, that Antwan accomplices, exactly
fied
one of the
was originally charged
however, were voluntari-
Herring.
death-penalty specifications,
as
The
same
could
prosecutors
did not think
Jones because
ly
against
dismissed
charged exactly
Callahan was
Franken
testified that Adelbert
them.
also
prove
penalty
could not
the death
because he
Herring,
Callahan
receive
the same as
but
also
that Eugene
at the
of the crimes. Franken
mentioned
was a
time
juvenile
had
juvenile.
accomplices
The two other
had
Foose,
accomplice,
another
indeed,
away
ran
as soon
anyone;
Allen did not shoot
he
Louis
culpability.
lesser
Dalton,
driver, neither entered the
getaway
Kitwan
shooting
as the
started.
aggravated sentenced 27, 2002, this affirmed convictions and February On Supreme death sentence. Id. at 269. The United Court denied certiorari. States (2002). Ohio, 917, 123 301, 154 L.Ed.2d Herring v. U.S. S.Ct. proceedings III. Postconviction *4 Herring’s postconviction A. claim 17, 1999, September petition filed his Herring postconviction On {¶ 19} an requested discovery evidentiary Herring’s He and hearing. primary relief. to challenged faffing adequate claim counsel’s in conduct an effectiveness hearing. Herring presented to his prior other in of his claim. documentary support affidavits and experts family
1. Affidavits from members Brams, an stating Dr. Jolie affidavit the psychologist, submitted {¶ jurors meaningful “no information” about presented psychological were life.” that no “problematic functioning lay over the course of his She stated expert testimony given jurors opportunity рresented “would the sociocultural, developmental to and intellectual psychological, understand particular point Mr. to that time.” operated bring Herring factors that to Dr. Brams testimony indicated of mother and sister during mitigation hearing presented a distorted picture Herring’s upbring- ing. As to their Dr. testimony, jurors Brams stated: “The saw only two supposedly caring individuals which nothing did to educate them regarding dysfunction marked Herring’s family Mr. amazingly dysfunctional role Instead, models whom this young was raised. [man] were picture family of a that cared.” Dr. Brams discussed her own evaluation of Herring’s family, history,
{¶ 22} past present functioning that could have presented during been mitigation. She stated that Herring’s “childhood was remarkably dysfunctional in almost every aspect.” She stated that “was in an Herring raised environment in which basically every parental member, figure, caregiver, family and associate activities, was involved in illegal significant abuse, drug and alcohol and whom the consequences of violating the law evoked little anxiety.” Dr. Brams de- “ child,’ scribed as a ‘feral who roamed neighborhood aimlessly, any without adult having meaningful or consistent concern.” Dr. Brams that Herring stated began using marijuana and alcohol on a frequent basis by the time he was 13 or Herring’s active substance abuse a primary factor leading to his failure school and his eventual decision to out of drop school. Herring’s family members introduced him gangs and drug dealing,
which was described to Dr. Brams as family “the business.” Dr. Brams added that Herring’s mother asked him to purchase drugs her own consumption and that his mother and other members used drugs openly. Dr. Brams stated that no psychometric tests were conducted prior
trial assessing any aspect Herring’s mental capacities. There was also no exploration of his intellectual and capacity sources, academic from other such as interviews Dеpartment (“DYS”) of Youth Services personnel public school teachers or a review of his institutional records. Dr. Brams also stated that a neuropsychological evaluation should have been prior conducted to trial to establish whether Herring from organic suffered brain impairment. Dr. Brams’s staff administered various tests Herring. Test results (“WAIS-III”) the Wechsler Adult Intelligence Scale-Third Edition showed
that Herring IQ had a verbal a performance IQ of IQ and a full-scale 87. Results on Beery Buktenica Developmental Test of Visual-Motor Integration placed percentile the third nationally and showed his *5 difficulty with visual-motor functioning. Results on the Matrix Analogies Test showed that has Herring the perceptual-learning ten-year-old. skills of a Dr. Brams also that Herring’s indicated DYS records provided informa-
{¶ 27} tion about Herring’s positive characteristics. She stated that the DYS records in many of the staff expectations was to meet Herring that Mr. able “reflect in terms of socialization and that out him were set complete goals areas and education.” psychiatric of a number of diagnoses Brams set forth her Finally, Dr. Psychiatric Manual of and Statistical by Diagnostic as defined
disorders chronic, (2) (1) abuse, alcohol presents that Herring concluded Disorders. She (4) (3) abuse/dependence, depressive polysubstance abuse/dependence, cannabis (6) features, (5) and disorder, narcissistic and antisocial disorder with personality disabilities. learning Huff, Policy of Public and Dr. C. the director the School Ronald an affidavit about University, Herring’s submitted
Management Ohio State up gang Huff with a host Herring “grew involvement. Dr. stated gang models, He family.” role on his father’s side of stated especially members years he 11 or 12 old and that gang when Herring became member abuse, were trafficking, greatly and other crimes Herring’s drug substance his involvement. by influenced gang Herring paternal grandmother, also affidavits from his two
{¶ mother, aunts, uncles, Nicole, his and a cousin. These affidavits two his sister dealer, involvement, life as mother’s Herring’s drug drug gang discussed use, Herring’s members have been incarcerated. cousin and other who aunt uncle at trial if they and an and an would testified grandmother been asked. had sister, Nicole, took care of Herring’s grandmother stated their her Herring until was about when their moved out their grandmother he that their them with structure and grandmother provided
home. Nicole indicated complete do Herring She was strict made Nicole chores discipline. homework. their mother, Deborah, by that she has seven children four Herring’s stated caring fathers. Deborah said that she overwhelmed with her
different father had shot to over when drug dispute children. been death has a longstanding was four old. admitted that she years Deborah years. knew that problem and had been addicted crack for She drinking problem. that he had a substance-abuse Herring sold crack but did think 2. Dr. Darnall’s letter Darnall, Douglas a letter from Dr. clinical petition included phase. counsel At had been sent to trial before psychologist, testing Dr. pretrial trial counsel’s Darnall had conducted request, (“MMPI-2”). Personality Inventory administering Multiphasic the Minnesota not had opportunity told letter he had Dr. Darnall tidal *6 and therefore was “unable complete a clinical interview or a assessment conduct clinical conclusions.” any specific to derive that the results of the MMPI-2 were reported Dr. Darnall’s letter suggested He stated that certain test results
“questionable” validity. test understanding specific or not the Herring “exaggerating symptoms Darnall items.” Dr. added: has suggest of the clinical scales would that Mr. configuration
The configuration in his would responses. made some discriminations to be very likely characterize Mr. as a individual who is suspicious impulsive, He is inclined to bе rather unrelia- authority figures. hostile to ble, him suspicious, egocentric, irresponsible. may perceive and Others * * * hostile, of others. It is hypersensitive possible the reactions Herring may distorting that Mr. have a delusional disorder could be on him. He interpretations going as to what is around perceptions isolated and have ideas. may socially persecutory feel responded Dr. Brams submitted an addendum affidavit that to Dr. report. cursory perusal Herring’s Darnall’s Dr. Brams stated: “Even a of Mr. MMPI-2 would indicate need for further profile neuropsychological [the] psychiatric follow-up testing.” terms evaluation and She added: “Defense follow-up counsel did not this MMPI-2 with further evaluation of the report any stated, Simply mitiga- defendant. the sole use of an MMPI to determine tion lack grossly way fully factors or thereof is limited and no could describe functioning history the of that individual.” affidavit Hrdy’s The affidavit of Thomas Hrdy, mitigation specialist engaged by trial, attorneys prior employment meeting discussed his and his
with counsel in preparing Herring’s mitigation:
I believe that I attorneys was first contacted Mr. Van Brocklin Mr. it August, Zena around the first week of 1997. As out, turned this did not allow adequate necessary time me to collect the case, records for a full such as school records and once, medical records. I met with at our initial attorneys only I not information I meeting. attorneys do know what collected. do if attorneys up my suggestion bring not know the followed in to I psychologist things evaluate Willie. do know these because me, information did not have and we not share the attorneys did after our initial one. subsequent meetings Herring four times affidavit, stated that he had interviewed Hrdy In his any not interview other members. mother once. He did constraints, complete was unable to extensive to time he
Hrdy stated that due *7 collect attempts specific “the specific research. He did not recall interview Human records, Mаhoning County Youth such as Ohio Services Department it, my I I over head in “I felt like before knew Hrdy added: Services.” I if I do not recall told necessary complete investigation. of time terms running that I was out of time.” trial counsel “in services two or three Hrdy provided mitigation said that he had “Looking He concluded: back now prior Herring’s
other cases” case. capital case, job I that I did a work I did for the feel substandard on the fact that I underestimated primarily This is due to the mitigation investigation. all necessary mitigation time which was needed to contact of the the amount of and records.” necessary witnesses and locate all the resources 4. Hall’s affidavit Hall, petition, supervisor In another affidavit attached to the Dorian Defender, analyzed the of the section of the Office of the Ohio Public Hrdy’s mitigation investigation. Hrdy deficiencies in Hall stated that obtained attempted education records and to obtain records from Southside Medical Center, any attempts did not to make to obtain additional records.” appear “but his mother and Hrdy only Herring Hall also stated that interviewed members, friends, who family professionals to interview various neglected Hall detailed information about life. also stated provided could have history drug dealing, gang “a of substance abuse and there was involvement, activity, nurturing” criminal and lack of that was not neglect properly investigated. Herring’s postconviction petition
B. Trial court denies 6, 2003, motion for January granted the state’s On discovery and an summary judgment Herring’s requests and overruled rejected Herring’s trial court claim that counsel were evidentiary hearing. The conducting mitigation investigation, stating: their ineffective that counsel transcript sentencing phase It is clear from the of the family, from the Defendant’s and not present positive elected to evidence At the Defendant’s childhood. negative concerning present point, only effect, this one can if speculate any, negative as to what evidence would have had in jury’s deliberations. Tactical decisions and strategic choices must be reviewed with strong presumption * * * effective legal counsel is rendered. A opinion, different which varies from the theory used at trial does not depict ineffective assistance of counsel. case,
In the instant Defendant simply suggests speculates that trial counsels failure to present theory, [sic] alternative specifically, negative testimony childhood, concerning his amounts to ineffective assistance of counsel. This agree, Court does not and the Defendant is not entitled to a as to hearing these claims. The trial rejected court also Herring’s claim that trial counsel were
{¶41} ineffective by failing to hire a neuropsychologist to him. examine The trial court noted that Dr. prepared Darnall and submitted a report and did “not recommend that the Defendant be aby examined neuro-psychologist. Additionally, there *8 were specific findings made by Dr. Darnall that were not favorable to the Defendant.” appeals
C. Court
remands
of
appeal,
On
court
of appeals held that the trial court
{¶ 42}
had erred
granting summary judgment
to the
03-MA-12,
state. 7th Dist. Mahoning No.
¶
should not
rejected
Herring’s arguments on the
ground
trial counsel
(minimal)
made a tactical decision to present only
positive mitigation evidence
without first considering whether counsel had
an
made
“intelligent strategic
¶
decision” after
a
conducting
propеr
investigation.
99-100,
Id. at
citing
v. Taylor,
362, 396,
Williams
(2000)
U.S.
120 S.Ct.
{¶ 43} evidentia- ry hearing Appellant’s relative to trial efforts in counsel’s] advance their ¶ decision to present only Appellant’s positive mitigation history.” Id. mitigation of the the extent to determine hearing court added: “Without efforts, Appel- investigative and their trial counsel Appellant’s evidence before tactic.” mitigation an alternative present may simply exhibits postconviction lant’s ¶ directed specifically evidentiary hearing, the ordering at 104. Hrdy’s were apprized Appellant’s whether the trial court to “assess made a reasoned could counsel have Only then shortcomings. investigation’s ¶ Id. at 116. investigating.” to cease decision on remand hearing
D. Trial court’s 4, 2006, court conducted an the trial and December August On Zena, Herring’s Thomas Brocklin and Gary at which Van evidentiary hearing, Documentary evidence was also Hall attorneys, and Dorian testified.. testify hearing. at the Hrdy did presented. testimony
1. Van Brocklin’s trial. Van Brocklin counsel at Brocklin had been lead Van mitigation obtaining had a difficult time that after the defense testified Hrdy as a Defender had identified of the Ohio Public specialist, Office and hired as the defense Hrdy was then contacted mitigation specialist. possible specialist. 1997was four meeting Hrdy early September Counsel’s first recalled, obviously was to investi- Hrdy Brocklin “Mr. long. one-half hours Vаn Mr. the event if we could find gate and determine Brocklin could not recall specifications.” Van capital there was conviction discussed the case over the Hrdy again only met with whether defense counsel phone. that “he in never told defense counsel Hrdy Brocklin stated Van expert. himself as an always represented short of the mark” and
any way fell *9 said, that he had done all of the work Brocklin “I believed at the time Van * * * believe, I that had Mr. Herring’s background. to look into Mr. necessary it, for time, immediately filed a motion additional we would’ve Hrdy requested us the time.” that Durkin would’ve allowed quite Judge and I’m confident to conduct an that had had sufficient time Hrdy Brocklin also stated Van August September was hired in investigation. Hrdy adequate mitigation jury during a mistrial was declared delayed of the trial was because and the start 5, 1998, and the January commenced on eventually The trial then selection. 14,1998. February mitigation proceedings began negative “knew a lot of that he and Zena Brocklin testified Van criminal through our own Herring “through information” about during lengthy to us supplied that were things and those kinds of records they that not recall information discovery specific Van Brocklin could process.” trans- the case files had been Herring’s background had known about because that Herring Brocklin had known to the defender’s office. Yet Van public ferred records. that of his had criminal prior juvenile had a record and members for Herring’s that a had been issued subpoena Brocklin also recalled Van incarceration. during that himself confinement records to show he had behaved that information because the records But defense counsel decided not to use or a fight.” involvement “a death threat showed Darnall. Dr. that the defense had hired Dr. Van Brocklin also stated well, or was not with “a that didn’t work provided report Darnall defense counsеl neurological impairment. for very perform any testing definitive.” He did not present “positive and Zena decided to Van Brocklin stated he {¶ stated, argument “I home in mitigation evidence.” He also hammered offender this matter.” Van principal Mr. had not been convicted as in mitigation explained present positive Brocklin that the decision to juries, jury “a lot to the fact we had two and the second picked do with [than] was, and I did not jury far more conservative that the first and both Tom panel particular jury think that information would have worked with that negative added, give “I of information that would panel.” thought any you He kind in a of crime would jury panel the second that Mr. had been involved life ammunition for them to find a death verdict.” simply be more testimony
2. Zena’s primary Zena had been co-counsel at trial and had the responsibility preparing mitigation. initially Zena testified that the defense prepared engage mitigation specialist, person a different but after job, they not take the trial counsel Zena did not Hrdy. could hired believe stated, “I Hrdy. Zena think we said let’s developed theory mitigation try [Herring], what we have and the best foot forward to save put see role, “it’s might Hrdy’s although whatever that be.” As to Zena said that are lawyer’s mitigation,” people Hrdy’s position responsibility present job give because it is their out and find and mitigation specialists “go called think something presented.” ideas on how should be on the Hrdy phone stated that he and Van Brocklin had talked to Zena did not have a timetable Hrdy’s mitigation investigation progressed. Counsel Hrdy. information from Zena testified: getting us, normal anything, if need call and we had our you was like [I]t need, call with or anything you’re having discussions. If there’s trouble *10 accessible to I think there was ever a time when we weren’t us. And don’t Likewise, me, was I was. he every him. I know time he tried to reach accessiblе. occasions and mother on a few Herring’s testified that he had met Zena
{¶ 54} mother spoke Herring’s sister. Zena stated that he Herring’s to know got with helpful she would be meeting anybody thought with “arranging about home.” mother never told Zena and we met their mitigation, life. drug during large part she had been a addict He stated that spoken Herring mitigation. Zena also had about “is a nothing negative family, Herring person told him about the because Herring or himself.” Zena negative any family that did not accent the about member stated, he was the sense of got mitigation phase, cooperative “When we to the do, any was not with knowing going forthcoming we—what we were but he But not restrictions on trial counsel’s put any presen- information.” did tation of evidence. * * * Zena stated that he and Van Brocklin made a “conscious choice to him” not a good things emphasize principal about and to was
put go. offender. Zena that this was “an awful case as cases This explained dead, shot, in a mayhem people up people up bar where wound wound bullets Moreover, bystanders all over the floor.” the victims were innocent who were in.” any transgressions any not “involved of the individuals who came Thus, Zena said that the out as a non goal “separating [Herring] principal offender, I responsible anyone, showing for the death of whatever could of the other side of him.” Billing statements statement, A billing Defense exhibit was Van Brocklin’s submitted
February Hrdy’s for defense counsel at trial. serving Herring’s billing Hrdy’s statement and its cover letter were attached. letter included the observa- tion, you “This has been a most difficult case to find on as well know[.] I know did could with the little I you you provided.” Hrdy’s billing the best expenses totaling statement showed he sent bill time and $1,501.30. testimony
4. Hall’s explained responsibilities mitigation specialist Hall of a conduct- investigation. Hrdy’s an Hall stated that invoicе showed that he had ing 30 hours of work. Hall did not believe that this was completed approximately properly mitigation investigation amount of time to conduct a adequate Herring.
177 again Herring’s petition E. denies Trial 26, 2008, Herring’s petition again the trial court denied September On relief. postconviction trial court hearing, at the reviewing the evidence After following ruling: made the evidence, Hrdy that Thomas never abundantly on this it is clear
Based and never investigation complete, trial counsel that his advised it. Trial counsels decision complete them for additional time to [sic] asked reasonable, objective on an review based present positive mitigation under profes- of counsels measured with reasonableness performance, [sic] norms, chal- consideration of the including context-dependent sional from at the time of lenged perspective conduct as seen counsels [sic] conduct. addition, opinion granted consistent with the Trial Court’s effect, State, as to what
summary judgment
only speculate
to the
“one can
any,
jury’s
if
evidence would have had
deliberations.”
negative
sentencing hearing
F.
appeals
Court
orders
new
the court of
held that the
appeal following
ruling,
appeals
On
this
only
that trial
decision to
finding
present
court abused its discretion
counsel’s
08-MA-213,
No.
positive mitigation
Mahoning
evidence was reasonable. 7th Dist.
¶
brought light appеllant’s deeply models, his problems, depression, abuse any positive role substance These areas of IQ, possible organic impairment. low and his brain life, are all explored fully, very appellant’s investigated been determining what weighed factors to be and considered significant counsel did not have this information present. evidence to And mitiga- only positive present decision to they made the them when before tion evidence. ¶ not have made could that “counsel then concluded 79. The court them.” Id. before proper without the decision
intelligent strategic mitigating into investigations court also stated “ ‘ evi- available reasonably all to discover comprise efforts “should ”’ *12 ¶ 524, sic.) American 82, quoting at quoting Wiggins at Id. (Emphasis dence.” (“ABA”) Appointment Bar Association Guidelines Performance (1989). 11.4.1(C) Cases, The court deter- Guideline Penalty Death Counsel in this failed to meet they testimony showed that trial counsel’s mined ¶ that his admitted Hrdy noted that The court also Id. at 82. standard. tasks many of the complete that he did not was “substandard” ¶ But at 79. background. investigating Herring’s in that he should have complete investiga- that a duty to ensure that it was trial counsel’s court stated Hrdy’s investigation. rely they simply and that could tion was conducted ¶ Id. at 82. stated that appeals the court of sentencing hearing, ordering a new “ ‘ jury’s well have influenced “might mitigating
the undiscovered ’ ” ¶ Beard, 90, 545 Rompilla v. quoting Id. at Herring’s culpability. appraisal” Williams, (2005), 529 U.S. 393, 2456, quoting 162 L.Ed.2d U.S. S.Ct. a different that “the probability also stated appeals at The court of ‘ undermine is “sufficient to the evidence if counsel had sentence ’ Id., quoting Rompilla jury.” in reached the outcome” confidence Strickland, 694, 104 L.Ed.2d 674. S.Ct. 466 U.S. quoting appeal Issues on IV. of the state’s acceptance following now this court The cause is before of law: propositions three
discretionary appeal following on the under the constitutionally is effective performance counsel’s I. Defense where, mitiga- of a any knowledge absent federal state Constitutions infor- reasonably light of the proceed shortcomings, they tion expert’s obtained, the fact that despite mation that sentencing for the preparation several tasks complete failed to expert trial). (of a phase capital to the right constitutional do not have federal Capital
II. defendants therefore, mitigation specialist; of a effective assistance having deficiencies cannot be to trial counsel without specialist’s imputed knowledge sufficient of those deficiencies.
III. An that trial constitution- appellate finding errs counsel was ally determining ineffective without whether or not the defendant suffered actual prejudice performance, result of counsel’s as set forth Washington. Strickland v. Analysis
Y. I) A. mitigation investigation (Proposition of Law Deficient argues The state that trial counsel were not deficient in presenting positive information about the defendant. The state contends that trial counsel performed reasonably though even mitigation specialist defense failed conduct a complete investigation, because counsel were unaware those shortcomings.
1. Legal standards
*13
To
a
counsel,
establish
violation of the Sixth Amendment
right
{¶ 67}
Herring must demonstrate that
performance
counsel’s
was deficient and that the
Strickland,
performance
deficient
prejudiced
687,
him.
{¶ 68}
performance must be conducted in
light
professional norms prevailing when
representation
Hook,
place.
4, 7,
took
v.
Bobby
13,
Van
558 U.S.
130 S.Ct.
(2009);
This mitigation presenting choices about strategic make counsel to enable strategic judg- Indeed, owed to counsel’s the deference defense. of the adequacy to the directly proportional is mitigation about ments evaluating when Accordingly, judgments. such investigations supporting case, “a in a strategy capital mitigation of counsel’s the reasonableness said investigation of the the reasonableness court must consider reviewing that strategy.” to support (6th Cir.2008), Mitchell, Wiggins at 527. quoting 538 F.3d
Jells
2. Discussion reasonably present- counsel proceeded that defense argues The state recognizes The state jury. to the evidence about ing positive mitigating be The state investigation completed. that a required mitigation that Wiggins however, reasonable for counsel believe professionally that it was argues, and that defense investigation prior sentencing Hrdy completed investigation for themselves that the counsel did not have to ensure complete. was accurate and
(a) Inadequate testimony during postconviction proceed- The affidavits and trial counsel detailed information about Hrdy that neither nor obtained ings show Thus, knowledge trial counsel did not have detailed about Herring’s background. involvement, Trial drug or life as a dealer. neglect, gang Herring’s parental father had been to have known appear counsel also does a drug child or that his mother had been young when murdered of her life. during large part addict job of admits that he did a “substandard Hrdy, mitigation specialist, to interview acknowledges He that he failed investigation.” *14 records, records, or police failed to obtain DYS Hrdy
members. also appears It Herring’s background. shed might light records that other attempted and to obtain Herring’s education records Hrdy only obtained that he did billing suggests statement also Hrdy’s his medical records. part of adequate investigation. to conduct an necessary in the time put Moreover, explore and tested to had not been evaluated Dr. background. factors in his and intellectual developmental, psychological, that uncovered a wealth IQ and other tests psychometric Brams conducted Herring. information about
181 responds by pointing state to these concerns out that defense Darnall, employed counsel Dr. a clinical obtained a from psychologist, report and But Dr. Herring. him. Darnall administered the MMPI-2 to Dr. Darnall only including reached some tentative conclusions “It is Herring, observing: about possible Herring may Mr. have a that could distorting delusional disorder be interpretations his to what is on around Yet perceptions going as him.” arrange defense counsel did not other follow-up psychological evaluations or testing Herring. counsel, Brocklin, Herring’s trial Van he testified that and Zena “knew things
number of own negative through investigation our criminal through of things records those kinds that were to us supplied during lengthy discovery process.” Yet Van Brocklin and Zena many were unable to recall specific details about their because knowledge they longer no had access Herring’s case file. Here, investigation comprehensive less than the
{¶
investigatiоn that
Supreme
Wiggins.
case,
Court found deficient in
In that
arranged
defense counsel had
for a psychologist to run a number of tests on the
defendant.
(2009), the Supreme Court held that counsel’s failure to interview the defendant’s medical, school, members and to obtain service made military records representation constitutionally deficient. The court stated that “like in Wiggins, ignored pertinent [defense avenues counsel] *15 that the not to aware,” and it concluded “decision been he should have which Id. judgment.” professional did not reflect reasonable investigate Hook, Court Supreme in whiсh the Moreover, not a case like Van this is 78} {¶ to defendant’s failing dig deeper into the not deficient that counsel were held Hook, had witnesses and eight the called defense background. Van at 558 U.S. 130 S.Ct. made an unsworn statement. defendant had the court that defense mitigation investigation, the noted 255. for the L.Ed.2d As at “early trial. Id. lay their and often” before had contacted witnesses counsel mother, twice an aunt with defendant’s with who spoke nine times Counsel child, as a and three times and often cared for Van Hook family lived with in touch their two witnesses They expert also were with family a friend. Id. reviewing military records. After military defendant’s and reviewed the seven records, from the Administration representative met with Veterans’ before trial. Id. weeks counsel had uncovered and all the evidence that defense Despite
{¶ by interviewing that his counsel were deficient not presented, argued Van Hook uncles, two well as a stepsister, two aunts —as family other members —his claim, 11. In this rejecting who once treated his mother. Id. at psychiatrist point at which from Court stated “there comes more Supreme Thus, reasonably Id. expected only relatives can be be cumulative.” distant concluded, identify not every “it was not unreasonable for his counsel treated living every therapist parents.” member or who once other failed The this case was because counsel investigation incomplete childhood, Herring’s dysfunctional and obtain records about interview witnesses involvement, abuse, drug and about his addiction. gang and substance mother’s adequately counsel also failed to ensure that evaluated and Defense Thus, is not in which about by psychologist. tested this case information merely that was uncovered have been Herring’s background would cumula- tive. Moreover, not to their fell expand counsel’s decision by work articulated ABA capital guidelines.
short of the standards
defense
Court of the
has
that the ABA standards that
Supreme
United States
stated
determining
guides
in effect
the time of trial are
what is reasonable.
were
Hook,
8-9,
L.Ed.2d 255. The 1989 ABA
Van
{¶ They responsibilities. appropriate,” tive stated that soon as is counsel “[a]s should
[cjollect relevant of trial but sentencing phase including, information (mental not medical history injury limited to: and illness or of physical use, alcohol delays); birth trauma and drug developmental educational (achievement, behavior)[;] history performance and special educational cognitive disabilities); military needs limitations and (including learning service, conduct, history length (type special training); employment history and training (including performance, skills and barriers employability); family and history (including physical, social sexual or abuse); record; prior emotional adult and prior Juvenile correctional experience (including supervision conduct or the institution/edu- services); cation training/elinical and religious and cultural influences. 11.4.1(D)(2)(C). Id. at Guideline Counsel’s fell performance below these norms. well-defined Counsel
failed ensure that a comprehensive investigation Herring’s was conducted into background, obtaining only childhood, rudimentary information about abuse, involvement, substance gang and psychological makeup. Based on these failures, we conclude that counsel did not conduct an adequate into investigation Herring’s background before the mitigation hearing started.
(b) strategy positive to introduce Defense argues The state trial counsel “strategic made a decision” to {¶ positive present mitigating evidence. Brocklin that they Van testified decided present only positive mitigation because some of jurors appeared to lean favor the death penalty. He that “any stated kind of information Mr. Herring had been involved in a life of crime would more simply be ammunition for them to find a death verdict.” The points state also to Van Brocklin’s statement that trial counsel negative
“knew number of things” about and wanted to them keep the jury. Although from his recollection was Van imperfect, Brocklin testified knew Herring’s juvenile about record and that members of had criminal records. Trial counsel Darnall, also Dr. who employed conducted some pretrial testing of Herring, though scope of Dr. Darnall’s evaluation was quite limited. The state Burger Kemp, invokes v. U.S. S.Ct. (1987),
L.Ed.2d 638
the proposition
to keep
counsel’s decision
negative
a full
and did not necessitate
jury
strategy
from the
sound
information
Supreme
upheld
propriety
Court
investigation.
Burger,
evidence on behalf
present any mitigating
not to
decision
defense
counsel
rejected
The
claims that defense
was deficient
defendant.
background in search of
into the defendant’s
investigation
an all-out
pursuing
that the
Id. at 794. The court stated
limited
evidence.
potential
“did
all
interview
witnesses
conducted was reasonable because
attention,”
helpful
and discovered little that was
who had been called to
harmful.
794-795.
much that was
.at
(6th
Mitchell,
Cir.2000), in
cites
arguing
Scott,
a full
In
conducting
mitigation investigation.
tion without
defense counsel
no
pursued
presented
mitigating
a residual-doubt
evidence other
strategy
jury.
Id. at 880.
state postconvictiоn
than Scott’s unsworn statement to
had failed
proceedings,
presented
showing
the defense
evidence
counsel
to
told
parents
contact
who would have
them that
defendant’s
members
abusers,
grew up
alcohol and
the defendant
severe
he
drug
poverty,
were
exceedingly
during
to an
environment
exposed
upbringing.
was
See
violent
Scott,
309-311,
(8th Dist.1989).
App.3d
v.
63
185 ical The court problems. forgo presenting held counsel’s decision informed not an and that counsel’s performance was decision Houk, v. inadequate. Id. at 325-326. See also Foust 655 F.3d 534-536 (6th Cir.2011) (partial incomplete investigation but deemed inade- mitigation (6th Cir.2008) Mitchell, Jells, (same); quate); Mason v. F.3d 538 (same). F.3d at 496 Herring acknowledges only decision trial counsel to present
positive mitigation strategy right can be a sound trial “in case.” Wiggins pursue cites decision to arguing positive- counsel’s can after theory properly only be made counsel has conducted a full Thus, investigation. agree. We counsel’s decision to pursue posi- it tive-mitigation theory justified because was made an adequate before investigation had been conducted into Herring’s background.
(c)
responsibility
investigation
Trial counsel’s
argues
ineffective,
The state
that trial counsel were not
because
Hrdy
were unaware that
Thus,
had failed
conduct
adequate investigation.
the state asserts that it was professionally reasonable for counsel to
believe
Hrdy
completed
his investigation
rely
and to
on his status as a mitigation
expert rather than ensuring
for themselves that the
was accurate
and complete.
(N.D.Ohio
Houk,
The state
2010),
cites Drummond
F.Supp.2d
*18
(6th
grounds,
Cir.2013),
on other
nom. Robinson v.
134 S.Ct.
sel for to had been ineffective hire a for failing “gang expert,” failing prepare to testimony, Dr. for and failing Fabian for to conduct a complete investigation. Id. During 702. the Dr. he proceedings, Fabian stated that had not had time to for prepare trial and had been to Id. at unprepared testify. 699-700. Defense counsel that Dr. not responded Fabian had concerns to them expressed about having had insufficient to his Id. at prepare testimony. time 703. Defense representations counsel also stated that based Dr. upon regarding Fabian’s testify as that Dr. Fabian could believed experience, credentials and expert.” Id. effectively any “gang as claims, court that “it the stated In Drummond’s ineffectiveness rejecting
{¶ experience on Dr. Fabian’s self-described rely for counsel to was reasonable time for prepare that Dr. had sufficient to presume to Fabian gang members and contrary.” to Id. at 703. credible assertions the testimony any absent misrepre- for be held the responsible court concluded “counsel cannot The of Fabian.” or omissions Dr. sentations Drummond, Hrdy as in never told defense argues The state to time or that he needed more investigation incomplete that his was Thus, responsi- cannot be held it. the defense counsel argues state
complete important are differences Hrdy’s or omissions. There misrepresentations ble for Drummond, of testimony on the the cases. the focused between two here, Hrdy, mitigation responsible specialist, witness. In contrast the single records, witnesses, by collecting interviewing case a full the for list. expert-witness an providing on argues reasonably also that trial counsel could have relied state mitigation expert. Brocklin testified that the defense Hrdy’s expertise as Van office Hrdy’s through public Hrdy name the state defеnder’s obtained Trial expert.” Hrdy’s himself as an counsel’s reliance on “always represented same on specialist as was not the as counsel’s reliance Dr. expertise mitigation psychologist -Dr. was a clinical expertise Drummond. Fabian Fabian’s professional on a rely psychologist’s representations. counsel should be able (6th (it Mitchell, Cir.2005) not 425 F.3d unreasonable See Clark counsel, health, rely on of a opinion for untrained the field mental the clinical psychologist). claim that counsel could Additionally regarding reasonably state’s ABA it is instructive that the 1989 did Hrdy’s expertise, guidelines
have relied specialists. mention Not until 2003 edition do the ABA mitigation call defense team. guidelines hiring specialist part Appointment ABA Counsel See Guidelines Performance of Defense 4.1(A)(1) 10.4(C)(2)(a) (Rev.Ed.2003). Cases, Penalty in Death Guidelines then, call for serve guidelines specialist Even *19 (“counsel 10.4(B) See, advisory e.g., id. Guideline investigatory capacity. team”). Thus, of the we responsibility performance overall for the defense bears on that rely Hrdy’s representations the that counsel could reject argument state’s further mitigation expert conducting investigation. a he was without it counsel also that was reasonable for defense to argues state 98} {¶ amount that Hrdy that because the completed believe to that he Hrdy work. stated in his initial letter counsel Hrdy billed for his $2,500 to a bill rarely complete investigation, needed more than an he sent $1,501.30. trial to unclear trial after counsel for a total It is when counsel a Hrdy’s billing represented only received bill. But the little more than A of the also Hrdy’s expected expenditures. billing review statement percent that with Hrdy meeting shows had one mother and four meetings any potential mitigation and did not meet with other family members Thus, Hrdy’s put the state’s contrary argument, billing witnesses. statement that work Hrdy’s investigation incomplete counsel notice had been and more should have been done. (6th Cir.2008), In Bagley, Johnson v. F.3d 592 the Sixth Circuit similar mitigation
addressed ineffectiveness claims a case. Counsel’s capital in that strategy through case had been humanize the his grandmoth- defendant testimony present er’s and to her as witness who would from compelling suffer jury impose decision to a death sentence. A central theme of the defense strategy present grandmother figure was to the as a pivotal the defendant’s life, who “did that one could everything reasonably expect try help” do to [to] him. Id. at 599-600. abstract,” The court stated that the counsel’s mitigation strategy “[i]n have been a
might “legitimate strategic decision.” Id. at 600. But court the determined that trial “pursued strategy only counsel this after what can be anemic described and leaderless that investigation” signifi- suffered from cant flaws. Id. First, the court stated the defense chose not to the team interview
{¶ defendant’s mother she had prostitute because been a and a drug addict would been a “bad witness.” Id. The court stated that the bad background precisely why mother’s she reason should have been Second, interviewed. Id. stated that the defense large obtained a of files from Department number the Ohio of Human Services but apparently Instead, read them. never defense simply jury counsel submitted them to the knowing they without hurt strategy whether or helped defendant’s it. The court stated that if counsel had they read the records would have learned place social workers were reluctant grandmother’s the defendant custody Thus, because of history. her-abusive of the review records would have off tipped counsel to a mitigation theory different and avoided pitfall submitting records to jury directly contradicted counsel’s theory grandmother positive defendant’s change force for his life. 600- Id. at сase, a situation with similarities to present Johnson’s acknowledged were not involved in the investigation. provided names, Trial counsel had mitigation specialists their with an initial set of *20 “I saying, significant guidance, no provided that he had attorney admitted but one that.” 544 out to do mitigation experts get the investigation. We don’t plan he did admitted that attorney that began, day before at 601. On F.3d trial, defense done, midway through investigator what his not know Id. to have.” [they going were] what records not “even know counsel did blunders occurred investigative that these stated The Sixth Circuit any defense made penalty-phase who Johnson’s participated no one because Id. The Sixth Circuit investigation. scope of the about the deliberate decisions led to investigation over the supervision lack of structure and that the noted “ ‘suggests] defense’s] that [the appointments and missed delays significant inattention, strategic not reasoned the result of investigation was incomplete ” 534, 2527, 156 Wiggins, 539 U.S. at 123 S.Ct. Id. at 602, quoting judgment.’ could not counsel’s presentation that defense 471. The court concluded L.Ed.2d in a to make position “were not decision since justified strategic be * * * * * * investigation supporting because strategic choice[s] reasonable 536, Wiggins at 123 S.Ct. Id. quoting was unreasonable.” choice[s] their Johnson, to ensure responsibility trial counsel had the Herring’s inAs 104} {¶ performed was before Herring’s background into investigation that a complete cannot avoid that trial counsel Johnson also demonstrates penalty phase. into adequate investigation an complete for the failure to responsibility their Johnson, Moreover, as in failures. Hrdy’s because of Herring’s background resulted complete investigation failure to that trial counsel’s evidence shows judgment.” at 602. We conclude “inattention, strategic not reasoned from that an failure to ensure not excuse counsel’s Hrdy’s shortcomings did completed. was adequate investigation
(d) cooperation lack Herring’s any or divulge refusal to discuss also argues The state 105} {¶ him claiming from family precludes himself or his information about negative inadequate. was counsel’s forthcoming any with had not been Zena testified
{¶
not
did
But Zena stated
family.
about his
negative information
explained,
Zena
mitigation.”
of the
“presentment
on the
place any restrictions
in the sense of
[Herring]
cooperative
phase,
got
we
to the
“When
any
do,
forthcoming
with
but he was
going
what we were
knowing
is an
preparing
cooperation
lack of
information.”
was deficient.
whether counsel
reviewing
factor
important
deficient, the court
performance
counsel’s
To determine whether
accepted professional
objective standard based
it
against
must measure
Rompilla,
norms. See
U.S.
125 S.Ct.
{¶ 108}
counsel’s
was
given
reasonable
the defendant’s lack of cooperation.
In Schriro v. Landri-
gan,
550 U.S.
(2007),
S.Ct.
whether counsel’s failure to
investigate
capital
background
defendant’s
deficient when the defendant
Owens,
would not
cooperate.
the defendant
would not cooperate with
examiners,
mental-health
would not allow
to
and,
communicate
with her
contrary
advice,
to counsel’s
would not take the
Id. at 406-407. The court held that any failure to develop
stand herself.
mitigating evidence was the result of the defendant’s actions and not deficient
performance by her counsel.
Id. at 412. The court
stated,
“A defendant cannot
be permitted to manufacture a winning
claim by
[ineffective-assistance-of-counsel]
sabotaging
defense,
her own
or else every defendant clever
to thwart
enough
her
own attorneys would be able to overturn her sentence on appeal.” Herring’s refusal
cooperate
to
appears to fall
somewhere between
Rompilla
Landrigan.
Herring was not forthcoming with counsel during
mitigation, particularly
any
with
negative information
family.
about his
But
Herring never told trial counsel that he did not want mitigation Thus,
presented.
Herring’s refusal to divulge information did not excuse counsel
139 Ohio
Neyland,
See State v.
St.3d
mitigation investigation.
from
conducting
¶
353,
deficient because responsibility Trial counsel’s beforehand. thorough mitigation investigation cannot because of Hrdy’s be excused investigation completed that an ensure counsel, omissions, failure to with refusal Hrdy’s communicate negative family. information about his provide trial counsel mitigation specialist; imputation right B. No constitutional II) (Proposition of Law Hrdy’s to counsel deficiencies its that trial counsel second recasts claim were proposition The state’s investigation. argues The state inadequacies Hrdy’s responsible counsel, imputed cannot be Hrdy’s completing the *22 deficiencies them, defendants knowledge capital who have sufficient because do did not mitigation specialist. of a right have a constitutional to the effective assistance right not have a to a Herring It is true did constitutional Mitchell, a one. Moore v. mitigation right to an effective See 708 specialist (6th McGuire, 390, 399, 760, Cir.2013); v. St.3d 686 F.3d 777 State 80 Ohio (1997) (no to in requirement mitigation specialist 1112 for counsel hire N.E.2d case). a to though obligation employ Even did not have a capital specific “counsel to obligation fully investigate possible did have an specialist, Jells, at argument evidence available.” 538 F.3d 495. The state’s did not responsibilities Herring were lessened because counsel’s mitigation specialist unpersuasive. is As right constitutional effective responsibili- trial counsel had the regarding proposition, discussed state’s first complete performed was before ty investigation making ensure that Moreover, trial only positive mitigating evidence. present decision Hrdy’s to tell them responsibility by relying cannot avoid their failure case, in incomplete. particularly was That is true this which the trial counsel’s inadequate investigation facts that the resulted from inatten- show tion monitor it. Hrdy’s progress conducting and failure tо III) Prejudice (Proposition of Law inquiry
C.
perform-
that trial counsel’s deficient
appeals
The court
concluded
{¶ mitigating
that the
ance
court stated
undiscovered
prejudicial.
was
“ ‘
’ ” Herring’s culpability.
jury’s appraisal”
well have influenced the
“might
¶
diced as a result of the without the evidence. The state reweighing claims of the evidence establishes that was not prejudiced. Legal standard “the is a assessing prejudice, question is whether ‘there reasonable that, errors,
probability
proceed-
but for counsel’s
the result of the
unprofessional
ing would have been different. A
probability
probability
reasonable
is
sufficient
”
Williams,
undermine confidence
the outcome.’ State v.
99 Ohio St.3d
¶
2. Evidence at presented mitigation hearing the Herring was sentenced to death for the aggravating course-of-conduct involving participation circumstance his intentional three murders and two attempted murders. at Herring The evidence trial showed that and his accom- killed these plices during planned robbery Youngstown victims of a bar. In this court’s independent sentence review on appeal, direct we described the events that occurred at Inn Newport the and discussed evidence that out singled Herring’s culpability ringleader: as the clearly They
The robbers coordinated their actions in dis- advance. Inn; the robbery among going Newport cussed themselves before to the doors; they divided into two groups they shooting cover both started almost here the notion immediately. displayed The coordination belies of the acts individual members merely impulsive killings the were killings that the were the conclusion supports That coordination gang. kill intended to that each of the robbers robbery plan and integral to the plan. of that part the victims as Herring, because regard strong is especially
And that inference the robbers It was at his house ringleader. he was the evident assembled, robbery. Herring of the he initiated the discussion (except guns He also obtained the with a mask. only prepared robber Foose’s), carry gun. who would which and he decided 940. 762 N.E.2d 94 Ohio St.3d the death even penalty should receive explained why Herring alsoWe codefendants, Jones, did not. Jones was Herring’s one of
though Antwan attempted counts of murder and two aggravated of three counts of convicted murder, him were dismissed. specifications against but death aggravated 267. We stated:
[Sjince leader, stronger had a case certainly the state Herring was Moreover, issue of intent. the state against him than Jones on the against Jones, as the actual killer pointing Herring, had ballistics (even actual being though jury acquitted Count One count). Jones, against was no such evidence who killer on that There mm. rather than a 9 The state thus had carrying a .357-caliber firearm and not Jones. penalty rational basis to seek the death Id. at 268. Herring’s evidencе that mitigation, As for trial counsel mother and his older penalty. Herring’s not receive the death
accomplices did relationship with his testimony loving about his provided positive sister also addition, argued trial counsel jury spare and asked the his life. years was 18 and 8 months jury Herring’s youth. Herring should consider at the time of the murders. Id. at 267. old Undiscovered evidence during mitigation hearing, produced In contrast to the evidence if conducted an could have produced
evidence that *24 comprehensive picture a more investigation presents adequate presented evidence that was never background. Compelling troubled (1) in a violently drug dispute father died Herring’s indicated that jury to the (2) Herring’s crack cocaine for most of his mother used Herring young, when (3) (4) childhood, stepfather Herring began to drugs, abusing his addicted (5) early daily, used drugs age Herring and alcohol at and them almost (6) his dropped finishing grade, out of school before the tenth mother did not (7) school, Herring know whether had ever from graduated high Herring was (8) life, much of in Herring began selling drugs member for and his gang early teens. addition, In Dr. Brams about presented could information Her- that ring’s dysfunctional childhood. The would have “was jury Herring learned basically every figure,
raised an environment which parental caregiv- er, activities, member, family significant and associate in illegal drug was involved abuse, and alcohol and to whom the law consequences violating evoked jury little anxiety.” Herring The could have also heard that was introduced to dealing and gangs drug through family other members and own Herring’s Thus, purchase mother asked him to her. drugs for contrast the testimony trial, presented substantial evidence showed that had not Herring been raised by a caring nurturing family. and Other evidence that was not presented jury to the revealed cognitive
and learning-skills deficits. had a 87. But Herring IQ full-scale other test results showed that had a low scоre on functioning visual-motor and had addition, perceptual-learning skills of a Dr. ten-year-old. diag- Brams abuse, nosed chronic Herring with alcohol cannabis abuse/dependence, polysub- disorder, stance abuse/dependence, depressive personality disorder narcis- features, learning sistic antisocial disabilities. Dr. Brams also stated (which IQ achievement is profiles, history suggestive of disabilities), learning and his chronic early onset of substance abuse showed that he should have had neuropsychological evaluation to determine whether he Thus, suffers from an brain organic impairment. additional information about Herring’s mental been impairments developed presented could have to the if jury performed counsel had an adequate investigation. position
4. State’s argues The state was not prejudiced by counsel’s failure to a more First, ensure that complete investigation occurred. argues the state that the mitigation testimony many of the members majority would have been effective because a that they them stated did not believe that Herring committed the offenses. But this not mean that does underlying conveyed information these could have about witnesses background was not believable. Second, the state argues that the evidence that trial
{¶ failed to discover would not have made difference the outcome of the if sentencing proceedings jury. been *25 194 (6th Cir.2007), Bradshaw, 442, 454 and Keith v. 482 F.3d
state cites Nields (6th Cir.2006), in that the Circuit has Mitchell, arguing Sixth 455 F.3d a about background capital information present found that the failure similar prejudicial. not defendant was Nields, had failed to that In trial defense counsel discover
“ that ‘he an neglectful,’ was chaotic and was ‘Nields’s childhood home life focused,’ that had very whose life was once ‘he and dedicated musician expert * * * worker,’ a hard and was еmployment experiences several successful extremely dependable helpful, a kind-hearted friend and and that he ‘was ” friendly person.’ Id. at Nields’s brief. The court found that this additional informa- quoting case, in testimony tion cumulative” of at trial. Id. Unlike this “largely was involvement, gang drug include and alcohol Nields the additional evidence did not abuse, case, unlike in the court in possible problems. mental Also this Nields largely present- found was cumulative of evidence that the additional information ed at trial. Keith, postconviction In affidavits showed that trial defense counsel members, family praised that friends and family
had failed to interview
daughter
with his
high
relationship
abilities
school football and
and
Keith’s
nieces,
opined
that a forensic
consultant had
neuropsychological
and
and
Keith
from a
at 670. Evidence
also
might
impairment.
suffer
mild brain
Id.
was
addict,
mother
been raised
drug
that his
was a
he had
murderer,
that his
and
grandparents,
grandmother was
convicted
that his
father
was
run the streets.
In
gambled
concluding
and
known to
Keith
was
prejudiced,
explained:
not
Sixth Circuit
“The additional
* * *
so terrible
does
demonstrate that Keith’s life had been
that he
addition,
culpable.
less
much of the so-called additional
materially
in the
already given
jury
[presentence report], including
information was
to the
family history
of Keith’s
and childhood circumstances.” Id.
descriptions
are
There
similarities between
additional evidence Keith and
present
family history
neglect, drug
in the
case. Both cases involve
abuse,
misconduct,
and criminal
involve the
that the
possibility
both
defen-
case,
But unlike
present
dant
from brain
in the
Keith’s
impairment.
suffered
jury
provided
presentence report
family history
had been
described his
circumstances.
childhood
Moreover, the Sixth
has found that
counsel’s failure to
Circuit
defense
in a number of
mitigation investigation
prejudicial
conduct а full
different
See,
Foust,
case.
present
e.g.,
that are similar to the
F.3d
circumstances
(prejudice found when
had failed to
information
539-546
obtain
about
chaos,
family
squalor, incest,
abuse and
sexual
in the
parental
neglect,
abuse
good
performed
saving
baby
home and about
acts defendant
from
being
drive-by
shot in a
shooting
convincing
stop strip dancing
his sister
Johnson,
using drugs);
at 606
when
(prejudice
F.3d
found
counsel had
neglectful
failed
discover evidence that defendant’s mother was a
drug addict
*26
and had
by giving
committed “atrocities” on him
him beer and Percocet when he
a child to
stop crying, putting
eye,
teaching
a
out
his
and
him as
cigarette
Jells,
cocaine);
an adolescent
prepare
and sell crack
Herring’s family’s drug his alcohol and abuse are entitled to little weight mitigation. discover, however, The additional that counsel failed to involved much Herring’s more than and drug alcoholism abuse. Finally, argues the state the trial judge’s opinion overruling
Herring’s claim postconviction great should be afforded deference because the judge same over presided Herring’s trial and postconviction proceedings. See Williams, 396-397, 120 1495, 146 389; 529 Schriro, U.S. at S.Ct. L.Ed.2d 550 U.S. 476, 1933, at 127 S.Ct. 167 L.Ed.2d That judge 836. never reached the prejudice claim, of prong Herring’s however, ineffectiveness he ruled that because counsel’s mitigation investigation was not deficient. Reweighing aggravating mitigating circumstance and factors case, In this counsel presented some evidence the mitigation
hearing. The judge jury heard almost nothing that would have humanized Herring or to gauge allowed them moral culpability. They his learned about crimes, Herring’s him, that his mother and sister loved that his accomplices did not penalty, receive the death was young, he and almost nothing else. effective, Had judge jury been could
{¶
learned
the “kind
troubled
that the
history”
Supreme
United States
Court
has “declared
relevant
a
assessing
culpability.”
defendant’s moral
Wiggins,
535,
2527,
539 U.S.
123 S.Ct.
L.Ed.2d 471. They
156
could have heard many
(1)
(2)
details
specific
Herring’s dysfunctional childhood,
about
his
history
(3)
abuse,
(4)
involvement,
of alcohol and drug
gang
his mental-health
(5)
possible
problems,
Penry
brain
v.
impairment.
Lynaugh,
See
492
302, (1989),
U.S.
106 L.Ed.2d
abrogated
S.Ct.
on other
304, 122
(2002),
grounds,
Virginia,
2242, 153
Atkins v.
536 U.S.
S.Ct.
L.Ed.2d 335
Brown,
538, 545,
quoting
U.S.
107 S.Ct.
YI. Conclusion to conduct by failing We hold that trial counsel were deficient *27 background mitiga- into thorough adequate investigation Herring’s before that the court of determined that hearing. appeals properly tion We also hold deficiency pursuant Accordingly, counsel’s to Strickland. we prejudicial judgment vacating court of appeals affirm the of the death sentence this the trial a new remanding sentencing hearing, matter to court for at jury impaneled a new shall to consider whether to the death impose which be penalty or a life sentence.
Judgment affirmed. O’Connor, C.J., O’Neill, JJ., French concur.
O’Donnell, Kennedy, Lanzinger, JJ., dissent. J., dissenting.
O’Donnell, I Respectfully, dissent.
{¶ 136} trial strategy developed by Herring’s This case concerns the defense evidence, which included present only positive counsel to view, asking jury my and sister his life. has spare mother that and has performed competently failed to rebut the counsel presumption inquire shown a reasonable but for counsel’s failure to further probability evidence, of the proceeding into the existence of other outcome would have been different.
197 of Review Ineffective Assistance Counsel Claims As the 466 Supreme explained Washington, Court Strickland v. U.S. 668, 687, 2052, (1984), 674 claim S.Ct. L.Ed.2d convicted defendant’s “[a] require that counsel’s assistance was so as to of a or defective reversal conviction First, death components.” sentence has two must “a accused overcome within strong presumption that counsel’s conduct falls the wide of reason- range assistance,” 689, able professional perform- id. and demonstrate that counsel’s i.e., deficient, ance was made errors so was not “counsel serious functioning as the ‘counsel’ guaranteed the defendant the Sixth Amendment.” Second, specified the accused proving bears burden that, errors in prejudice by showing resulted “a reasonable but for probability errors, unprofessional counsel’s the result the proceeding would have been different.” Id. at 694. deferential,” “[SJcrutiny performance counsel’s must be id. at highly
689, and the court has
recognized
“[sjurmounting
high bar
Strickland’s
is
task,”
371,
easy
356,
1473,
never an
Padilla v. Kentucky, 559 U.S.
S.Ct.
(2010).
L.Ed.2d 284
this
Importantly,
case concerns the trial court’s
of a
denial
petition
postconviction relief,
which
upheld
“should be
absent an abuse of
Gondor,
377,
Deficient Performance Smith, As the Supreme explained Court in Wiggins v. 539 U.S. *28 527, (2003), 123 S.Ct. L.Ed.2d “In the assessing reasonableness of attorney’s an a court investigation, only must consider not the quantum of counsel, already to known but also whether known the evidence would Thus, attorney investigate lead reasonable to further.” bore the burden that attorneys to demonstrate his defense were of on notice the need to not, however, inquire further. He has met this burden. attorneys, defense Van Gary Zena, Brocklin and Thomas
hired Thomas Hrdy, mitigation to conduct an specialist, investigation seeking to However, mitigating uncover potential Hrdy evidence. informa- produced little tion, and he that subsequently job mitigation admitted he “did substandard investigation.” He also that he lacked time enough complete asserted the investigation, attorneys but both defense that claim. no dispute proof There is Hrdy trial that performed at the time of any counsel had indication that defense Hrdy’s evidence. affidavit possible into inadequate investigation claim, they had no notice both testified that no and defense counsel makes such at that he Van Brocklin testified “believed inadequate. the investigation that look Mr. the into [Hrdy] necessary had done all of work time that the in counsel that “he never alerted defense Herring’s background” Hrdy cоunsel, told “This has been Notably, Hrdy mark.” way fell short any know,” would you well which difficult case to find as most an adequate investigation to believe that reasonably have caused defense counsel completed. had been Hrdy’s billing counsel on notice that Hrdy’s “put Nor did statement 142}
{¶ ¶ 98, because, at majority as the investigation incomplete,” opinion had been trial counsel bill. acknowledges, Hrdy’s it is unclear when received majority Moreover, have confirmed defense billing may simply the details in the statement jury Herring’s past had located that the Hrdy nothing counsel’s belief mitigating. would have found panel Hrdy’s if known that investigation And even trial counsel should have 143}
{¶ a more have proof in-depth investigation there is no would inadequate, not that he anything already disclosed counsel did know. Van Brocklin testified “through lot own negative arid Zena “knew a information” about our things criminal records and those kinds of that were through Thus, during discovery us to the supplied lengthy process.” contrary conclusion, no majority’s there is indication that counsel did not fact “review Youth Herring’s [Department of records and other records that would Services] provided dysfunctional background,” majority opinion information about his ¶ 89, show time of were nor does record that defense counsel involvement, life Herring’s “parental neglect, gang drug not aware of as a ¶ dealer,” id. at Rather, post-hoc the record contains “a handful of nondenials” {¶ — Pinholster, U.S.-,
lawyers, Cullen v. 131 S.Ct. 179 L.Ed.2d (2011), specifically they who could not recall what known about not background. assuming scope because counsel could remember the conducted, one majority ignores must have been investigation, fails to performed professionally recognize that counsel had presumption that, testified, strove foot put Zena defense counsel this case “the best forward to [Herring].” save Similarly, Herring asserts trial counsel were deficient because factors psychological, developmental, failed to evaluate the and intellectual indicating Dr. Darnall he relies on a letter from
Herring’s background; Douglas *29 that only suggesting MMPI-2 to that he had administered the
199 Herring may have “a delusional But Dr. Darnall’s reports disorder.” letter administered, only counsel had asked for the MMPI-2 to be nothing this letter only indicates this was the assessment that Dr. Darnall or any other expert conducted. And trial counsel lacked any independent memory of what steps they took to evaluate mental state. Their files—which case would establish whether or not defense counsel had conducted reasonable apparently appellate public lost in the attorneys —were defender’s office. Thus, in this nothing record indicates that defense violated the
“duty to make
investigations
reasonable
decision
make
reasonable
Strickland,
particular
unnecessary.”
691,
makes
investigations
466
104
U.S.
2052, 2066,
S.Ct.
80
674. Herring
L.Ed.2d
has
not
the strong
therefore
rebutted
presumption
adequacy
favor of the
of trial
representation,
counsel’s
nor has he
any
shown that
of the claimed
disagreement
errors are
more than “a
anything
Brown,
strategy.”
55,
do not constitute a
deprivation
Lang,
effective counsel.” State v.
129 Ohio
¶
512,
596,
reasonable trial strategy. Defense counsel based positive the decision to present information on the composition particular which jury panel, they viewed as likely to impose the death Herring. sentence on Brocklin explained Van negative information that “Herring had been in a involved life of crime would simply more [have been] ammunition for them to find a death verdict.” And Zena believed that putting negative mitigation evidence would have served only Thus, him “bury further.” Supreme Court Cullen noted — Pinholster, U.S.-, 131 S.Ct. at certainly L.Ed.2d “it can be reasonable for attorneys to conclude that creating sympathy for the defendant’s is a better idea because the is simply unsympathetic.” defendant himself sic.) (Emphasis Trial is strategy province counsel, defense
{¶ specialists. It is the accused’s who attorneys charged are the responsibility in an develop strategy present effort to best case on behalf of the defendant; they bear the ultimate responsibility defending accused at asserts, trial. this is if fact, And true even a mitigation specialist after the *30 200 conducting mitigating in to discover job the failed do
he of a to the effective assistance right no There is constitutional evidence. of counsel. See to the effective assistance specialist, only right a (6th Cir.2013); McGuire, v. 80 Ohio Mitchell, 760, 777 708 State v. F.3d Moore (1997). has 399, Herring prove failed 390, 1112 And because 686 N.E.2d St.3d the trial court did not abuse its performed deficiently, attorneys that his trial provided competent had defense. in that counsel finding discretion Prejudice fell outside the of reason- assuming range that counsel’s conduct Even the assistance, preju- still carries burden establish Herring professional
able
reweigh
aggravation against
“In
we
the evidence
the
assessing prejudice,
dice.
evidence,”
534,
Wiggins, 539 U.S.
123 S.Ct.
totality
mitigating
of available
471,
the
2527,
necessary
and “it is
to consider all
relevant evidence
156 L.Ed.2d
it if
the different
jury
pursued
have had before
had
[trial counsel]
that the
would
have
but
just
evidence
could
path
presented,
counsel]
the
[trial
—not
have
it.”
certаinly
that almost
would
come with
evidence]
also
other
[the
Belmontes,
20,
sic.)
15,
383,
v.
130 S.Ct.
175 L.Ed.2d
Wong
558 U.S.
(Emphasis
(2009). Thus,
jury
“must show a
that the
Herring
probability
328
reasonable
body
after it
the entire
of
rejected
weighed
have
sentence
capital
would
could
(including
testimony
evidence
the additional
have
mitigating
[trial counsel]
presented) against
body
aggravating
the
of
evidence.”
entire
view,
Here, my
appellate
court committed reversible error
the
it concluded that
failing to
all the relevant evidence before
had
reweigh
prejudiced by
been
counsel’s errors. The
noted
the undiscovered
’ ”
“ ‘
jury’s
influenced
mitigating
“might
appraisal”
evidence
well have
the
culpability
probability
and that “the
of different sentence if counsel
‘
the
is
“sufficient to undermine confidence
the
presented
evidence
”’
08-MA-213,
that it counsel should discovered and determined life, tion, childhood Herring’s dysfunctional details about including abuse, involvement, possible mental-health drug gang problems, alcohol and aside death impairment, taking extraordinary step setting brain because this was not ordering mitigation hearing new sentence trial —without first during determining whether the submission of this made any weighed evidence would have difference when other evidence in against the case. view, In my weighing aggravating circumstance for each of the against
three murder counts
evidence that
asserts counsel
should have
that any
discovered demonstrates
error did not affect the outcome of
the proceeding.
jury
found
Herring guilty
specifica-
three death-penalty
tions for
involving
killing
a course of conduct
kill
purposeful
attempt
*31
246, 252,
two or
persons.
more
State v. Herring, 94 Ohio St.3d
{¶ abuse,
background, his
his
drug
gang
by
and
involvement
no
“clearly
is
means
—
Pinholster,
In
v.
mitigating.”
-,
1410,
Cullen
U.S.
drug
have
view,
is not
caused
my
might
this evidence
business.”
attempted
beyond
to conclude
rehabilitation. Had
jury
evidence,
jury
humanize him with this
explain Herring’s
behavior and
criminal
likely
past,
including
would
also learned of
extensive
shooting
person
grade,
to DYS
another
while
various
eighth
commitment
robberies,
See
gang
drug trafficking.
and a life of
involvement
aggravated
*32
03-MA-12,
{¶ disorder, organic impairment, any him for a delusional brain have evaluated Herring mental disorder. There is no evidence that suffers from these other in support Herring’s petition conditions. Dr. Jolie Brams offered evidence relief, trial, had she testified she could have informed postconviction but and jury only learning disability, problems, substance abuse Herring anxiety proven none of which depression,” “reasonable and would ability criminality of his conduct. impaired appreciate had an I that the would analysis, probability jury In the last see no reasonable {¶ this additional evidence been have returned different verdict had go. cases it. that this was “an awful case as recognized Defense dead, shot, in up people up where wound wound mayhem people This a bar floor,” bystanders who all and the victims were innocent were bullets over who came in.” any any with of the individuals transgressions “involved has not shown that defense counsel Accordingly, because assistance, its trial court did not abuse discretion ineffective provided I relief. would therefore reverse denying petition postconviction reinstate the sentence appeals imposed of the court of judgment Herring by the trial court accordance jurors recommendation of the who heard the the case.
Lanzinger Kennedy, JJ., concur in the foregoing opinion. Gains, Paul J. Mahoning County Rivera, Prosecuting Attorney, Ralph M. Assistant Prosecuting Attorney, for appellant.
Timothy Defender, Young, Ohio Public Kimberly Rigby S. and Elizabeth Arrick, Defenders; Assistant Public D. Lyon, Andrea for appellee. Appellants.
Pixley, Appellee,
Industries,
Inc.,
al.,
v. Pro-Pak
et
Pixley
Industries,
Inc.,
Pro-Pak
[Cite as
Ohio St.3d
a judgment of the Sixth District Court of Appeals that *33 summary reversed judgment granted by the trial court in their favor in connection with Phillip Pixley’s intentional tort claim arising injuries from he sustained when struck aby transfer car in the course scope employment at Pro-Pak. 2745.01, Pursuant to R.C. an intentional tort claim requires a demonstra-
tion of the employer’s intent to cause injury to an employee. And more 2745.01(C) specifically, R.C. provides a rebuttable presumption that the employer acted with the intent injure if injury another occurs as a direct result of the deliberate removal of an equipment safety guard.