813 N.E.2d 50 | Ohio Ct. App. | 2004
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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *658 {¶ 1} Petitioner-appellant Patrick L. Leonard has taken the instant appeal from the denial of his petition for postconviction relief. He advances on appeal six assignments of error. We hold that Leonard was entitled to a hearing on his claim challenging the trial court's order that he wear a stun belt during his trial. Accordingly, we reverse in part the judgment of the common pleas court denying his postconviction petition.
{¶ 2} In June 2001, a Hamilton County jury found Leonard guilty of aggravated murder, felonious assault, attempted rape, and kidnapping, in connection with the shooting death of Dawn Flick and the wounding of Ryan Gries and Frank Minges. The trial court imposed for the charge of aggravated murder a sentence of death. Leonard's direct appeal remains pending before the Ohio Supreme Court.
{¶ 3} On July 30, 2002, Leonard filed with the common pleas court a petition, pursuant to R.C.
{¶ 5} The common pleas court's adoption of the findings of facts and conclusions of law submitted by the state did not, by itself, constitute error. See State v. Calhoun (1999),
{¶ 7} To prevail on a postconviction claim, the petitioner must demonstrate a denial or infringement of his rights in the proceedings resulting in his conviction that rendered the conviction void or voidable under the Ohio Constitution or the United States Constitution. See R.C.
{¶ 8} A postconviction claim is subject to dismissal without a hearing if the petitioner has failed to submit with his petition evidentiary material setting forth sufficient operative facts to demonstrate substantive grounds for relief. See id.; State v. Pankey (1981),
{¶ 9} We note that the common pleas court denied most of Leonard's claims for relief, in whole or in part, under the doctrine of res judicata. "Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding[,] except an appeal from that judgment, any defense or any claimed lack of due process that was raisedor could have been raised by the defendant at the trial [that] resulted in that judgment of conviction or on an appeal from that judgment." (Emphasis sic.) State v. Perry (1967),
{¶ 10} We further note that Leonard's third and fourth assignments of error present, in essence, a challenge to the common pleas court's failure to permit discovery. We have long held that the postconviction statutes do not contemplate discovery in the initial stages of a postconviction proceeding. See State v. Zuern (Dec. 4, 1991), 1st Dist. Nos. C-900481 and C-910229, 1991 WL 256497; accord State v. Byrd (2001),
{¶ 12} Crim.R. 17 authorizes a court to issue a subpoena only to compel the attendance of a witness or the production of documents at a proceeding over which the trial court has jurisdiction. The rule does not compel a prospective witness to attend, or provide a means for discovery at, a pretrial interview with law enforcement officials. State v.Campbell (Jan. 8, 1997), 1st Dist. No. C-950746, 1997 WL 5182 (adopting the rule of United States v. Keen [C.A.6, 1975],
{¶ 13} The evidence offered in support of the second claim showed that the prosecution misused the Crim.R. 17 subpoena power. But Leonard failed to demonstrate how the prosecution's misconduct in this regard had prejudiced him. *661
We, therefore, hold that the common pleas court properly denied the second claim for relief, because Leonard failed to support the claim with evidentiary material setting forth sufficient operative facts to demonstrate substantive grounds for relief. See R.C.
{¶ 16} To prevail on a claim of ineffective assistance of defense counsel, a postconviction petitioner must demonstrate (1) that counsel's performance fell below an objective standard of reasonableness, and (2) that counsel's deficient performance prejudiced him. See Strickland v.Washington (1984),
{¶ 18} In his sixth claim, Leonard also challenged the adequacy of his trial counsel's cross-examination of certain state's witnesses, counsel's failure to present testimony by his sister, and counsel's failure to challenge the underrepresentation of African-Americans on his petit jury venire. And in his fifth claim, Leonard assailed the adequacy of the investigation conducted by counsel in preparing for the guilt phase of his trial.
{¶ 19} The evidence offered in support of these challenges to counsel's competence demonstrated neither counsel's violation of an essential duty to Leonard nor a reasonable probability that, but for the alleged omissions of counsel, either independently or collectively, the results of the guilt phase of his trial would have been different. SeeBradley, supra. Leonard thus failed to sustain his initial burden of demonstrating substantive grounds for relief. Accordingly, we hold that the common pleas court properly denied without a hearing the sixth claim and the relevant aspects of his fifth claim. See Pankey, supra;Jackson, supra.
{¶ 22} In asserting his "right" to a competent mental-health evaluation, Leonard relied upon the decision of the United States Supreme Court in Ake v. Oklahoma (1985),
{¶ 23} The Supreme Court in Ake held that due process requires the government to provide an indigent criminal defendant with the funds to obtain expert assistance, upon a showing of benefit and fairness to the defendant. See State v. Mason (1998),
{¶ 24} Leonard supported his eighth claim with a report prepared by a licensed clinical psychologist at the behest of the Office of the Ohio Public Defender, highlighting alleged deficiencies in the evaluation conducted and the testimony presented at the mitigation hearing by the psychiatrist retained by the defense. These alleged deficiencies included the psychiatrist's failure to identify and testify to the dysfunctional nature of Leonard's social and sexual relationships and his mother's culpability in his emotional development. The introduction of much of this evidence would only have served to undermine the defense's mitigation strategy. And, again, proof of the existence of evidence not presented in *664 mitigation that supported an alternative theory of mitigation did not prove counsel's ineffectiveness, when, as here, the record demonstrated that counsel had presented the case in mitigation competently in view of the facts available to them. See State v. Post, supra. Thus, upon our determination that Leonard failed to demonstrate substantive grounds for relief, we hold that the common pleas court properly denied the eighth claim. See Pankey, supra; Jackson, supra.
{¶ 26} The
{¶ 29} Leonard supported this allegation with copies of the complaints and entries filed in the civil actions. This evidentiary material showed that the victims had predicated their civil claims against the company upon the company's ownership of the van Leonard had driven to the murder victim's home, and that the plaintiffs in each action had voluntarily dismissed their claims against the company before trial.
{¶ 30} The dismissal of the company as a defendant in the civil actions left Leonard solely liable on the victims' claims. In that sense, the evidence might be said to have permitted a conclusion that counsel, in securing the company's dismissal from the victims' actions, had incurred a duty adverse to their duties in defending Leonard in the civil action. But the evidence disclosed no duty incurred by counsel in defending the company in the civil action that might be said to have been adverse to or in conflict with counsel's duties in defending Leonard against the criminal charges. Thus, Leonard failed to show an actual conflict arising from his counsel's simultaneous representation of him in his murder trial and of the company in the victims' civil actions.
{¶ 32} A criminal defense counsel's "breach of an ethical standard does not necessarily make out a denial of the
{¶ 34} Upon our determination that Leonard failed to demonstrate in any respect a violation of his
{¶ 36} As we noted supra, a postconviction petitioner is not entitled to discovery to develop a claim if the claim and its supporting evidentiary material do not demonstrate substantive grounds for relief. See State v. Issa, supra. And a postconviction claim is subject to dismissal without a hearing if the petitioner has failed to support the claim with evidentiary material setting forth sufficient operative facts to demonstrate substantive grounds for relief. See R.C.
{¶ 40} The record discloses that, prior to trial, the defense filed a motion requesting that Leonard be permitted to appear without restraints at all proceedings before the trial court because he had not shown himself to pose a flight or security risk. The trial court essentially denied the motion, declaring that it would accept the recommendation of security made by the Hamilton County Sheriff.
{¶ 41} Leonard supported his postconviction claim with an instruction manual that the Hamilton County Sheriff's Office had issued to its Court Services Division, outlining the purposes and uses of the stun belt, and a notification form that Leonard had signed, advising him of the sheriff's requirement that he wear the belt, the circumstances under which the belt might be activated, and the consequences of its activation.
{¶ 42} Leonard supported his claim with his own affidavit and the affidavits of five siblings who had attended his trial. Leonard asserted that he had had no prior criminal record, and that he had presented neither disciplinary problems while in jail nor security problems during pretrial proceedings. He supported this assertion with copies of the records from his confinement. He further averred that the deputy sheriffs who had wielded the stun belt's remote control had warned him that they would activate the belt if he said anything that they deemed "verbally aggressive" or if he made what they perceived as a "quick move[ment]." Leonard insisted that these and similar admonitions, coupled with his knowledge of the consequences of the belt's activation, had distracted him from the proceedings at trial and had made him reluctant to interact with his counsel.
{¶ 43} In their affidavits, Leonard's siblings attested to their observations that, throughout the trial, two deputy sheriffs had stood close by Leonard's side, even when, during the penalty phase of the trial, he had taken the stand to make his unsworn statement. Leonard's siblings asserted, variously, that he or she had *669 noticed the stun belt because the belt had been bulky, because Leonard had been apparently discomfited by it, and because the deputies had constantly hovered about Leonard and had openly exchanged the stun belt's remote control.
{¶ 44} The Due Process Clause of the
{¶ 45} The decision to use restraints is committed to the sound discretion of the trial court. Id.,
{¶ 46} Neither the United States Supreme Court nor the Ohio Supreme Court has addressed the practice of using a stun belt to restrain a criminal defendant during his trial.1 Courts that have addressed the issue have recognized that the use of a stun belt raises all of the concerns surrounding the use of traditional in-court restraints and presents some risks of its own. For example, placing a stun belt on a defendant who is all too aware of the possible consequences of the belt's activation presents "a far more substantial risk of interfering with [his]
{¶ 47} The Ohio Supreme Court has declared that "the presence of restraints tends to erode the presumption of innocence that our system attaches to every defendant." State v. Franklin,
{¶ 48} The trial court is uniquely situated to determine the risks of violence or escape, upon its consideration of "the [defendant's] actions both inside and outside the courtroom, as well as his demeanor while court is in session." Id. For that reason, the decision to impose restraints is committed to the sound discretion of the trial court. SeeState v. Richey (1992),
{¶ 49} The Supreme Court in State v. Franklin, supra,
{¶ 50} In the absence of a hearing on the need for restraints, the record of the proceedings at Leonard's trial manifested no such need. Leonard stood charged with a variety of violent crimes. But the violent nature of the crimes for which Leonard was being tried could not, standing alone, justify the requirement that Leonard wear the stun belt. See Miller v. State (Fla.App. 2003), 852 So.2d 904, 906 (noting that "allowing the charges of violence for which [a defendant was standing] trial to justify the use of restraint devices is circular reasoning that offends the presumption of innocence and [hence the defendant's] right to *671 a fair trial"). And the record at this time otherwise disclosed no circumstance that might be said to have "illustrate[d] a compelling need to impose exceptional security procedures."
{¶ 51} The evidence submitted by Leonard in support of his postconviction petition showed that he had had no criminal record and that he had displayed no violent tendencies either while in the custody of the sheriff's office or during the proceedings before the trial court that had preceded the denial of his motion to appear before the jury without restraints. As we noted supra, Leonard's theory of defense and mitigation (which we have, at the state's urging, found to be at least competent) was that Leonard was not a violent man who had visited his violent nature upon the victims but an essentially peaceful man who had acted out of character on the night in question. The evidence offered by Leonard in support of his petition showed that the stun belt was discernible to spectators in the courtroom and that the stun belt could also have been discernible to the jurors. Leonard argues that the apparent presence of these restraints would have suggested to the jurors that Leonard was not capable of self-restraint.
{¶ 52} Leonard's petition, with its supporting affidavits and the files and the records of the case, established his entitlement to a hearing on his first postconviction claim. See R.C.
Judgment accordingly.
DOAN, P.J., SUNDERMANN and GORMAN, JJ., concur.