State v. Alfred J. Morales, 91-LW-1388

• Decision Date: 31 January 1991
• Docket Number: 57868,91-LW-1388,57869
• Parties: STATE OF OHIO, Plaintiff-Appellee v. ALFRED J. MORALES, Defendant-Appellant Case
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee v. ALFRED J. MORALES, Defendant-Appellant

Nos. 57868, 57869

91-LW-1388 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

January 31, 1991

CHARACTER OF PROCEEDING: Criminal Appeal From The Common Pleas Court Case Nos. CR-199299 And CR-198082

JUDGMENT AFFIRMED

For Plaintiff-Appellee: STEPHANIE TUBBS JONES, CUYAHOGA COUNTY PROSECUTOR, BY: MICHAEL S. NOLAN, ASSISTANT COUNTY PROSECUTOR, THE JUSTICE CENTER, 1200 ONTARIO, CLEVELAND, OHIO 44113

For Defendant-Appellant: RANDALL M. DANA, OHIO PUBLIC DEFENDER KATHLEEN A. McGARRY, ASSISTANT STATE PUBLIC DEFENDER, CRAIG R. BALDWIN, LAW CLERK, OHIO PUBLIC DEFENDER COMM., 8 EAST LONG ST., 11TH FLOOR, COLUMBUS, OHIO 43266-0587

PARRINO J.:

On March 7, 1985 and April 16, 1985, defendant-appellant Alfred J. Morales ("appellant") was indicted by the Cuyahoga County Grand Jury for the crimes of Aggravated Murder with prior calculation and design, in violation of R.C. 2903.02; Kidnapping, in violation of R.C. 2905.01; and Aggravated Murder with a Felony Murder Specification of Kidnapping, in violation of R.C. 2903.02 and R.C. 2905.01. At his arraignment, appellant pleaded not guilty to all the charges. Appellant subsequently also entered a plea of not guilty by reason of insanity.

On December 2, 1985, appellant's jury trial commenced. On December 18, 1985, the jury returned a verdict of guilty as to all the counts set forth in the indictment. On December 19, 1985, the mitigation phase of appellant's trial commenced. On the same day, the jury recommended that appellant be sentenced to death with respect to the aggravated murder with the kidnapping specification count. Upon its completion of the required independent weighing of the mitigating factors against the aggravating circumstances the trial court adopted the jury's recommendation and imposed the death penalty. The trial court further sentenced appellant to a term of incarceration of ten to twenty-five years for kidnapping and life imprisonment for aggravated murder with prior calculation and design.

Appellant filed a notice of appeal to this court. Appellant's conviction was affirmed in State v. Morales (Oct. 2, 1986), Cuyahoga App. No. 51566, unreported. Appellant then appealed his conviction to the Ohio Supreme Court. In State v. Morales (1987), 32 Ohio St. 3d 252, the Ohio Supreme Court affirmed appellant's convictions and sentence of death.

Appellant filed a petition for certiorari with the United States Supreme Court, but in January, 1988, the United States Supreme Court denied certiorari. Appellant then filed a petition for rehearing in the United States Supreme Court in February, 1988. Appellant's petition for rehearing was denied in March, 1988.

On September 21, 1988, appellant filed in the trial court a petition for post-conviction relief pursuant to R.C. 2953.21. Without a hearing, the trial court denied appellant's petition on December 29, 1988. On May 11, 1989, the trial court filed its Findings of Fact and Conclusions of Law in support of its order denying appellant's petition for post-conviction relief.

Appellant filed a timely notice of appeal and subsequently raised the following assignments of error:

I. THE DENIAL OF APPELLANT'S MOTION TO SUPPRESS A CONFESSION OBTAINED IN VIOLATION OF HIS CONSTITUTIONAL RIGHTS AND USED TO APPELLANT'S PREJUDICE VIOLATES THE FIFTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTION 10, ARTICLE I OF THE OHIO CONSTITUTION.

II. IT IS ERROR FOR THE TRIAL COURT TO TELL PROSPECTIVE JURORS FOR A CAPITAL CASE THAT HIS CHAMBERS HAD BEEN BROKEN INTO. THESE COMMENTS DENIED MR. MORALES HIS RIGHTS AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE CONSTITUTION AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

III. THE EXCLUSIVE [SIC] OF POTENTIAL JUROR BETCHIK DENIED APPELLANT MORALES HIS RIGHTS AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

IV. THE ADMISSION OF THIRTY-NINE GRUESOME PHOTOGRAPHS OF THE VICTIM DURING THE GUILT PHASE OF PETITIONER'S TRIAL DENIED HIM A FAIR TRIAL AS GUARANTEED BY THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT.

V. THE TRIAL COURT ERRED WHEN IT IMPOSED LIMITATIONS ON APPELLANT'S EXPERT WITNESS TESTIMONY AND WHEN IT ALLOWED THE PROSECUTION TO CROSS-EXAMINE SAID WITNESS ON MATTERS NOT ADMITTED INTO EVIDENCE WHICH PREJUDICED APPELLANT IN THE PRESENTATION OF HIS DEFENSE AND DENIED HIM A FAIR TRIAL' AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

VI. THE PRETRIAL MENTAL HEALTH EVALUATION MADE AVAILABLE TO APPELLANT WAS NOT CONDUCTED IN A PROFESSIONALLY ADEQUATE MANNER AND DENIED APPELLANT HIS RIGHTS AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 5, 9, 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

VII. APPELLANT MORALES WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT HIS CAPITAL TRIAL IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

VIII. THE TRIAL COURT ERRED IN FAILING TO RECOGNIZE THE PREJUDICIAL EFFECT OF PROSECUTORIAL MISCONDUCT THAT WAS' PRESENT DURING THE GUILT AND PENALTY PHASES OF MR. MORALES' CAPITAL TRIAL. THIS PROSECUTORIAL MISCONDUCT DENIED APPELLANT A FAIR TRIAL AS GUARANTEED BY THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

IX. APPELLANT MORALES WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL AT THE MITIGATION PHASE OF HIS CAPITAL TRIAL IN VIOLATION OF THE FIFTH, SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

X. THE TRIAL COURT ERRED TO THE PREJUDICE OF APPELLANT MORALES IN SENTENCING MR. MORALES ON TWO COUNTS OF AGGRAVATED MURDER WHEN ONLY ONE HOMICIDE WAS INVOLVED; SUCH SENTENCING VIOLATED R.C. 2941.25 AND DENIED MR. MORALES HIS RIGHTS AS GUARANTEED BY SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION, AND THE FIFTH AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION.

XI. THE TRIAL COURT ERRED IN FAILING TO FIND THAT THE INSTRUCTIONS GIVEN TO THE JURY WERE ERRONEOUS AND PREJUDICIAL AND VIOLATED THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 2, 9, 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

XII. THE OPINIONS FILED BY THE TRIAL COURT AND THE COURT OF APPEALS ON DIRECT REVIEW OF APPELLANT MORALES' CAPITAL CASE FAILED TO MEET THE REQUIREMENTS OF R.C. 2929.03(F) AND 2929.05. THIS FAILURE HAS DENIED APPELLANT HIS RIGHTS AS GUARANTEED BY THE EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 9 AND 10, ARTICLE I OF THE OHIO CONSTITUTION.

XIII. THE TRIAL COURT ERRED IN FAILING TO FIND THAT APPELLANT MORALES WAS DENIED THE EFFECTIVE ASSISTANCE OF COUNSEL ON APPEAL AS GUARANTEED BY THE SIXTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND SECTIONS 10 AND 16, ARTICLE I OF THE OHIO CONSTITUTION.

XIV. THE TRIAL COURT ERRED IN SUMMARILY DISMISSING APPELLANT MORALES' POST-CONVICTION PETITION WITHOUT ACCORDING HIM AN EVIDENTIARY HEARING.

Under the doctrine of res judicata, a final judgment of conviction bars a defendant from raising and litigating in any proceeding, except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at trial, which resulted in the judgment of conviction, or on appeal from that judgment. State v. Perry (1967), 10 Ohio St. 2d 175, paragraph nine of the syllabus.

We find that the issues raised in appellant's first, second, third, fourth, fifth, sixth, eighth, tenth, eleventh, and twelfth assignments of error are issues which could have been raised on direct appeal or were raised on direct appeal. Accordingly, we conclude these assignments of error are without merit and are overruled.

In his seventh and ninth assignments of error, appellant contends that his trial counsel was ineffective at both the guilty phase and the mitigation phase of his trial.

In State v. Cole (1982), 2 Ohio St. 3d 112, 114, the Ohio Supreme Court held that res judicata bars an individual from raising ineffective assistance of trial counsel in a petition for post-conviction relief if the individual was represented by different counsel on appeal and the issue of trial counsel's ineffectiveness could fairly have been determined without resort to evidence dehors the record.

In the instant case, appellant was represented by new counsel on appeal. Furthermore, we find that the issue of trial counsel's alleged ineffectiveness could fairly be determined without resort to evidence dehors the record. Direct appeal was the appropriate time to raise the claim of ineffective assistance of counsel. Thus, we conclude that res judicata bars consideration of this issue in a post-conviction proceeding.

Appellant's seventh and ninth assignments of error are not well taken and are overruled.

In his thirteenth assignment of error, appellant contends that he was denied effective assistance of appellate counsel.

In post-conviction relief proceedings pursuant to R.C. 2953.21 a defendant may raise a claim that he was denied effective assistance of appellate counsel. State v. Howard (1989), 42 Ohio St. 3d 18. In Howard, supra, the Ohio Supreme Court addressed the merits of a claim for ineffective appellate counsel raised in post-conviction relief proceedings pursuant to R.C. 2953.21. Thus, in compliance with Howard, supra, we find that R.C. 2953.21 provided appel...