State v. Frederick Treesh

• Decision Date: 18 December 1998
• Docket Number: 97-L-080,98-LW-6106
• Parties: STATE OF OHIO, Plaintiff-Appellee, v. FREDERICK TREESH, Defendant-Appellant. CASE
• Court: Ohio Court of Appeals

STATE OF OHIO, Plaintiff-Appellee, v. FREDERICK TREESH, Defendant-Appellant.

No. 97-L-080

98-LW-6106 (11th)

Court of Appeals of Ohio, Eleventh District, Lake County.

December 18, 1998

Civil Appeal from the Court of Common Pleas Case No. 94 CR 000514

HON DONALD R. FORD, P.J., HON. JUDITH A. CHRISTLEY, J., HON WILLIAM M. O'NEILL, J.

CHARLES E. COULSON, LAKE COUNTY PROSECUTOR, JULIE KING MITROVICH ASSISTANT PROSECUTOR, 105 Main Street, P.O. Box 490 Painesville, OH 44077, For Plaintiff-Appellee

ATTY. CHARLES M. MORGAN, JR., 11510 Buckeye Road, Cleveland, OH 44104, For Defendant-Appellant

OPINION

FORD P.J.

Appellant, Frederick Treesh, appeals from a judgment entry of the Lake County Court of Common Pleas overruling his petition for postconviction relief without a hearing.

Late in the evening of August 27, 1994, appellant, Keisha Harth ("Harth"), Anthony Washington ("Washington"), and Benjamin Brooks ("Brooks"), were driving throughout the Cleveland area seeking crack cocaine. After depleting their supply of cocaine, they decided that they needed to rob a store to obtain more money to purchase drugs. Washington directed them to the Vine Street News, an adult bookstore in Eastlake, Ohio.

Appellant and Brooks entered the store, leaving Harth and Washington in their Pontiac Sunbird. Appellant reached under his T-shirt, pulled out a nine millimeter semi-automatic Browning high-power handgun, "cocked" it, and pointed it at the store clerk, Louis Lauver ("Lauver"). Appellant ordered Lauver "not to move, not to push any buttons, not to call out or anything" and asked where the armed security guard was located. Lauver silently nodded his head, motioning toward the back of the store. Appellant went to the back of the store where the store security guard, Henry Dupree ("Dupree") was located. Although some evidence indicated that no struggle occurred, appellant testified that he shot Dupree during an altercation, causing his death.

Appellant then ran to the front of the store, pointed the gun at Lauver, and fired the gun twice. Reacting instantly, Lauver threw up his hands to shield his face. Lauver sustained injuries to his left jaw and left forearm. Appellant and Brooks then ran out of the store, and joined Harth and Washington in the Pontiac. Ultimately, Sergeant Ronald Stih ("Stih") of the Euclid Police Department began pursuit of appellant's vehicle, and a high-speed chase ensued, during which appellant fired at Stih's vehicle several times. After numerous police officers arrived at the scene, appellant was arrested.

The Lake County Grand Jury indicted appellant on seven counts. Count one was for aggravated murder, R.C. 2903.01, with death penalty specifications, R.C. 2929.04. Counts two and three charged attempted aggravated murder, R.C. 2923.02 and R.C. 2903.01, aggravated felonies of the first degree, with firearm specifications, R.C. 2921.141. Count four alleged felonious assault of a peace officer, R.C. 2903.11, an aggravated felony of the first degree, with a firearm specification. Count five charged aggravated robbery, R.C. 2911.01, an aggravated felony of the first degree, with a firearm specification. Count six alleged the failure to comply with the order or signal of a police officer, R.C. 2921.331, a felony of the fourth degree. Count seven charged having a weapon under a disability, R.C. 2923.13, a felony of the fourth degree.

On August 31, 1994, appellant was arraigned pursuant to the indictment and pleaded not guilty to all counts. The court also ordered that appellant was to be held without bail. The trial court appointed John Hawkins and James B. Ritts to represent appellant, at the state's expense, on September 14, 1994.

On November 25, 1994, appellant filed a motion to suppress statements that he made at the Eastlake Police Department to Lieutenant Thomas Doyle ("Doyle") and to suppress the pretrial identification of appellant. The trial court overruled this motion in a judgment entry filed on January 11, 1995.

Beginning on February 2, 1995, the matter proceeded to a jury trial. On February 16, 1995, the jury found appellant guilty on count one, aggravated murder and all three accompanying specifications; guilty on counts two and three, attempted aggravated murder, along with the firearm specifications; guilty on count four, felonious assault of a peace officer, and the firearm specification; and guilty on count five, aggravated robbery, with a firearm specification. The court subsequently entered a nolle prosequi on count six, the failure to comply with the order or signal of a police officer. Further, on February 22, 1995, appellant pleaded guilty to count seven, having a weapon under a disability.

On February 21, 1995, the penalty phase on count one, aggravated murder, began. At its conclusion, the jury recommended that appellant be sentenced to death on the aggravated murder charge. In a judgment entry filed on March 2, 1995, the trial court adopted the jury's recommendation of the sentence of death. The court also sentenced appellant to three years actual incarceration for the firearm specification on the aggravated murder charge, which was to be served consecutively with the sentences imposed on the other counts. The court also held that appellant's sentence on count seven, having a weapon under a disability, would merge with the sentence on count one.

On count two, attempted aggravated murder, the court sentenced appellant to serve an indefinite term of imprisonment of ten to twenty-five years to be served consecutively to three years of actual incarceration on the firearm specification. The court further held that count four, felonious assault of a peace officer, would merge into count three, attempted aggravated murder, for purposes of sentencing. On those counts, the court sentenced appellant to an indefinite term of ten to twenty-five years of imprisonment, to be served consecutively to the three years of actual incarceration on the firearm specification. On count five, aggravated robbery, the court sentenced appellant to an indefinite prison term of ten to twenty-five years. The court also found that the firearm specification on this count would merge with the firearm specification on count one.

On March 7, 1995, the trial court issued its opinion pursuant to R.C. 2929.03(F), in which it concluded that the aggravating circumstance regarding appellant's aggravated murder conviction outweighed the mitigating factors beyond a reasonable doubt. Thus, the court sentenced appellant to death on count one. On April 5, 1995, the trial court granted appellant's stay of execution pending appeal. This court affirmed appellant's conviction on direct appeal. State v. Treesh (Oct. 16, 1998), Lake App. No. 95-L-057, unreported.

Appellant filed a petition for postconviction relief on December 5, 1996, and filed an amended petition on February 3, 1997. Appellee, the state of Ohio, filed a response to appellant's petition and a motion to dismiss the petition without a hearing on February 27, 1998. In a judgment entry filed on April 9, 1998, the trial court overruled appellant's petition for postconviction relief without conducting a hearing. In a judgment entry filed on July 8, 1998, this court remanded the matter pursuant to App.R. 9(E) so that the trial court could address several of appellant's causes of action that were not discussed in the April 9, 1998 judgment entry. On August 14, 1998, the trial court again entered judgment dismissing appellant's petition without a hearing. Appellant now asserts the following assignments of error:

"I. The trial court committed prejudicial error by failing to address all of the causes of action propounded by [appellant] in his amended petition in violation of [R.C.] 2953.21(F).

"II. The trial court erred by denying [appellant's] first cause of action asserting ineffective assistance of counsel relating to the trial attorneys' failure to introduce evidence to negate the purposeful requirement of aggravated murder.

"III. The trial court erred by denying [appellant's] second cause of action asserting ineffective assistance of counsel relating to the trial attorneys' failure to request the appointment of its own blood spatter expert.

"IV. The trial court erred by denying [appellant's] third cause of action asserting ineffective assistance of counsel relating to the trial attorneys' failure to obtain a report and expert testimony of its appointed neurologist.

"V. The trial court erred by denying [appellant's] fourth cause of action asserting ineffective assistance of counsel and conflict of interest with respect to trial attorney Hawkins' dual representation of [appellant] and Detective Thomas Doyle, a key witness of the state.

"VI. The trial court erred by failing to grant a post conviction [sic] hearing regarding previously excluded testimony of trial attorney [Albert] Purola at the mitigation phase of the trial.

"VII. The trial court erred by denying [appellant's] fifth, sixth, eighth, ninth and tenth causes of action as asserted in his amended petition, thereby violating his federal and state constitutional rights."

In the first assignment of error, appellant argues that the trial court erred by failing to address all of causes of action asserted in his amended petition. In the present case, this court remanded the matter to the trial court to address the three claims added in appellant's amended petition for postconviction relief. The trial court complied by filing an amended judgment entry that addressed all ten of appellant's claims for relief. Therefore, appellant's first assignment of error is moot.

In the second assignment of error, appellant contends that the trial court erred by overruling his petition for postconviction relief with respect to the...