State v. Gary W. Otte, 01-LW-0285

• Decision Date: 25 January 2001
• Docket Number: 01-LW-0285,76726
• Citation: 2001 Ohio 4123
• Parties: STATE OF OHIO, Plaintiff-Appellee v. GARY W. OTTE, Defendant-Appellant CASE
• Court: Ohio Court of Appeals

2001-Ohio-4123

STATE OF OHIO, Plaintiff-Appellee v. GARY W. OTTE, Defendant-Appellant

No. 76726.

01-LW-0285 (8th)

Court of Appeals of Ohio, Eighth District Cuyahoga

January 25, 2001

Civil appeal from Common Pleas Court, Case No. CR-279,973.

For Plaintiff-Appellee: WILLIAM D. MASON, Cuyahoga County Prosecutor, SHERRY F. McCREARY, Assistant County Prosecutor Justice Center, 8th Floor, 1200 Ontario Street, Cleveland Ohio 44113.

For Defendant-Appellant: DAVID BODIKER, State Public Defender Ohio Public Defenders Comm., 8 E. Long Street, 11th Floor, Columbus, Ohio 43215-2998; RICHARD J. VICKERS, Post-Conviction Supervisor, Ohio Public Defenders Comm., 8 E. Long Street, 11th Floor, Columbus, Ohio 43215-2998.

OPINION

ANNE L. KILBANE, J.

This is an appeal from an order of Judge Richard J. McMonagle that denied the post-conviction relief petition of appellant Gary W. Otte. Otte contends it was error to find that the grounds raised in his petition were barred by the doctrine of res judicata or that the petition set forth insufficient allegations and supporting facts to merit an evidentiary hearing. He also contends that Ohio's post-conviction procedures are unconstitutional. We agree with Otte's first two contentions and have no need to address the third. We affirm in part, reverse in part and remand.

On February 12 and 13, 1992, apparently as part of a drug and alcohol binge, Otte, then twenty years old, robbed and killed Robert Wasikowski and Sharon Kostura in separate incidents at an apartment complex in Parma, Ohio. He was indicted on two counts of aggravated murder with felony murder, mass murder, and firearm specifications, as well as two counts each of aggravated burglary, aggravated robbery, and kidnaping. On June 25, 1992, he acknowledged his waiver of jury trial in an abbreviated court proceeding:

THE JUDGE: All right. We're here on the matter of the State of Ohio versus Gary Otte, Case 279973. And this has been called for trial for Monday and we have sent notices out to 75 potential jurors. And it's my understanding counsel for Mr. Otte, you are willing to waive the jury trial and be tried to three Judges of this Court, is that correct?

MR. D'ANGELO: That's correct, your Honor. I discussed with Mr. Otte his right to trial by jury, or try it to a three Judge panel, and I advised him pursuant to the discussions of the Court and I recommended to him that we try the case to a three Judge panel, and I recommended to him the members of the panel will be Judge Richard McMonagle, Judge [Lesley Brooks] Wells, and Judge [Frank] Gorman. And he agreed to waive his right to jury trial.

THE JUDGE: Is that correct, Mr. Otte?

THE DEFENDANT: Yes.

THE JUDGE: You read the form about waiving your

right to trial by jury?

THE DEFENDANT: Yes.

THE JUDGE: You agree that is your signature?

THE DEFENDANT: Yes.

THE JUDGE: And it's signed by both your counsel as witnesses?

THE DEFENDANT: Yes.

THE JUDGE: With that in mind we'll contact the jurors and tell them it will not be necessary for them to be here Monday.

A signed waiver form, dated June 25, 1992, is appended to Otte's post-conviction petition but is not part of the trial record. Trial was held on September 16, 1992. On September 22, 1992, a journal entry noted Otte's jury waiver.

Otte presented no evidence at the guilt phase of his trial, and his cross-examination of the State's witnesses was limited to eliciting evidence and testimony concerning his claimed intoxication at the time of the offenses. Through his written confession introduced as evidence during the guilt phase, he claimed that he was highly intoxicated at the time of the killings, having consumed large quantities of liquor and crack cocaine. His lawyers, however, presented no expert evidence of Otte's mental state, and did not formally pursue any affirmative defenses. His lawyer made the following closing argument at the guilt phase, which is reproduced in its entirety:

Your Honor, our position is legal, and simply put, we believe that there is no evidence as a matter of law, certainly to justify a finding of guilt beyond a reasonable doubt on the charge of kidnaping with respect to both victims in this case.

We also believe that there is insufficient evidence, taking into account the defendant's voluntarily and intoxicated state to support the requisite mental intent of prior calculation and design, and finally that the mass murder specification is also not appropriate in this case.

Other than that we feel that the Court has heard the evidence and can draw the appropriate conclusions therefrom.

On September 17, 1992, the panel returned a guilty verdict to

the aggravated murder charges, and scheduled the trial's penalty phase for October 5, 1992. Otte presented mitigation evidence consisting of testimony from his mother and father, letters written by his siblings, and the testimony of court-appointed psychologist Dr. Nancy McPherson. The evidence generally showed that he had a hearing impairment from ear infections during childhood, as well as a stuttering problem, hyperactivity, learning disabilities, and an intelligence quotient in the bottom fifteen percent of the population. He developed behavioral and substance abuse problems as a teenager, had attempted suicide on three occasions and was,

apparently, drug dependent at the time of the killings.

Dr. McPherson testified that Otte previously had been diagnosed with either adjustment disorder with depression, or depression as well as alcohol and drug abuse * * *. She interviewed Otte on April 22, 1992, and again on June 16, 1992, found no evidence that he suffered from psychosis, and attributed his reports of divergent experiences to his use of recreational drugs. She was not asked and did not indicate, however, whether she was aware that Otte was on medication at the times he was interviewed.

He was sentenced to death by electrocution. A different lawyer was appointed for his appeal and the conviction and sentence were upheld in State v. Otte (1996), 74 Ohio St.3d 555, 660 N.E.2d 711.

On September 20, 1996, Otte, through his appointed appellate lawyer, filed a petition for post-conviction relief pursuant to former R.C. 2953.21. Through it, he claimed to have scientific evidence that he was not competent or able to make rational decisions before or during his trial. On June 11, 1999, the judge denied the petition without a hearing, and issued findings to support his ruling. At some point after that date, Otte's lawyer notified the Ohio Public Defender's Office that he no longer intended to represent Otte, and the Public Defender assumed that representation.

On June 21, 1999, despite the fact that the judge had already issued a order that denied Otte's petition, the State filed a motion to dismiss. On June 25, 1999, and again on June 28, 1999, the judge's findings and decision were filed and journalized. On July 22, 1999, Otte filed a notice of appeal from the June 25, 1999 entry of judgment which we dismissed. We granted reconsideration upon Otte's assertion that he did not receive notice of the June 11, 1999 judgment entry.

The fifty-six page, two hundred forty paragraph postconviction petition alleges eighteen separate causes of action, and appends over one hundred fifty pages of exhibits. Prominent among Otte's claims is an allegation that, while in jail before trial, he was given powerful antipsychotic medication to control violent outbursts and signs of mental illness, such as auditory hallucinations and paranoia. He alleged that he was given increasingly larger doses of these medications as his trial approached and that it impaired his ability to make a voluntary and informed waiver of his right to a jury trial, that it rendered him incompetent to stand trial, and that his trial lawyer was ineffective for failing to investigate and present evidence of his mental illness and his incompetence (causes of action nos. 1, 10 and 11). No mention of Otte's medication, whatsoever, appears in the trial record.

The petition also claims:

a) that Otte's waiver of jury trial was involuntary because both the trial judge and his lawyers ineffectively failed to inform him of the nature of the right and the consequences of his waiver, including the increased risk of receiving the death penalty before the three judge panel (causes of action nos. 2, 4, and 5);

b) that the panel had no jurisdiction to try, convict, or sentence him because the waiver of jury trial was not filed until after the trial was held (cause of action no. 3);

c) that his trial lawyers were ineffective for failing to present expert evidence concerning the effects of his cocaine and alcohol use (causes of action nos. 6, 7, 8, and 9);

d) that his trial lawyers were ineffective for failing to present coherent and effective evidence and argument during the penalty phase, and for failing to present expert evidence concerning his cocaine and alcohol use during the penalty phase (causes of action nos. 12 and 13);

e) that his trial lawyers were ineffective for failing to present, during the penalty phase, further evidence and witnesses uncovered by a court-appointed mitigation expert and submitted to the trial lawyers in a report (cause of action no. 14);

f) that the court did not consider evidence of his good behavior and adjustment to prison life in mitigation (cause of action no. 15);

g) that Ohio's death penalty procedures are unconstitutional (cause of action no. 16);

h) that his trial lawyers were ineffective during the guilt phase (cause of action no. 17), and;

i) that the cumulative effect of the errors was prejudicial (cause of action no. 18).

Otte's petition included records showing his behavioral and medication history while in the Cuyahoga County Jail awaiting...