State v. Gillard

• Decision Date: 11 June 1997
• Docket Number: No. 96-221,96-221
• Citation: 679 N.E.2d 276,78 Ohio St.3d 548
• Parties: The STATE of Ohio, Appellee, v. GILLARD, Appellant.
• Court: Ohio Supreme Court

Page 548

78 Ohio St.3d 548

679 N.E.2d 276

The STATE of Ohio, Appellee, v. GILLARD, Appellant.

No. 96-221.

Supreme Court of Ohio.

Submitted Jan. 21, 1997.

Decided June 11, 1997.

SYLLABUS BY THE COURT

Trial errors that are either harmless or waived by effective counsel are not mitigating factors under R.C. 2929.04(B)(7).

We have considered various issues in this capital case on two prior occasions and provided detailed accounts of its facts and procedural history at each opportunity. State v. Gillard (1988), 40 Ohio St.3d 226, 533 N.E.2d 272 ("Gillard I" ), and State v. Gillard (1992), 64 Ohio St.3d 304, 595 N.E.2d 878 ("Gillard II" ). For that reason, we provide only a brief procedural history here.

In Gillard I, we reinstated appellant's convictions for the aggravated murders of Denise Maxwell and Leroy Ensign, and for the attempted aggravated murder of Ronnie W. Postlethwaite. 40 Ohio St.3d at 235, 533 N.E.2d at 281-282. We also remanded the cause to the court of appeals to conduct its independent review of the appropriateness and proportionality of appellant's death sentence. Thereafter, the court of appeals affirmed the death sentence, and appellant again appealed to this court. See State v. Gillard (June 25, 1990), Stark App. No. CA-6701, unreported, 1990 WL 94632.

In Gillard II, we remanded the cause to the trial court with instructions to conduct a hearing to determine whether an actual conflict of interest existed in trial counsel's representation of appellant. 64 Ohio St.3d at 312, 595 N.E.2d at 883. We also ordered the trial court to conduct a new trial if it found that an actual conflict existed. After a hearing, the trial court determined that there was no conflict of interest and returned the matter to this court pursuant to our original remand. Accordingly, we resume our review of this cause.

Robert D. Horowitz, Stark County Prosecuting Attorney, and Ronald Mark Caldwell, Assistant Prosecuting Attorney, for appellee.

David H. Bodiker, Ohio Public Defender, Michael J. Benza and Cynthia Yost, Assistant State Public Defenders, for appellant.

COOK, Justice.

Given our determination in Gillard II, the tasks remaining in this case include a review of the issue of the alleged conflict of interest of appellant's trial counsel and our own independent review of the appropriateness and proportionality of the death sentences pursuant to R.C. 2929.05(A). Although appellant challenges his convictions and sentence, these propositions of law present issues beyond the scope of the Gillard II remand and, as such, are beyond the scope of our current review. Further, appellant failed to raise these issues in his 1988 cross-appeal when we affirmed his convictions and remanded the cause to the court of appeals. See Gillard I, supra. These new issues are barred by the doctrine of res judicata and we overrule propositions of law six, nine through thirteen, and fifteen without further consideration. State v. D'Ambrosio (1995), 73 Ohio St.3d 141, 143, 652 N.E.2d 710, 713.

Appellant does raise additional matters that he has not had the prior opportunity to argue and which may not be barred by the doctrine of res judicata. Thus, although they are technically beyond the scope of the remand, we will consider appellant's challenges to the 1990 "resentencing" hearing of the trial court and to the effectiveness of his appellate counsel.

After the court of appeals affirmed the original death sentence, the appellate court issued a special mandate directing the common pleas court to "carry this judgment into execution." State v. Gillard (June 25, 1990), Stark App. No. CA-6701, unreported, 1990 WL 94632. The common pleas court, in response to the mandate, held a hearing to set a new execution date, not to "resentence" appellant. At the hearing, the trial court had no authority to reopen the question of whether the appellant should receive the death sentence, and could not receive evidence or reweigh the aggravating circumstances against the mitigating factors. Accordingly, we overrule appellant's fourteenth proposition of law.

In his seventh proposition of law, appellant claims his appellate counsel in Gillard I was ineffective because only two issues were raised in his cross-appeal. Gillard I, however, was appellant's second appeal as of right (notably, a claimed appeal as of right). As such, appellant was not entitled to effective assistance of appellate counsel. State v. Buell (1994), 70 Ohio St.3d 1211, 1212, 639 N.E.2d 110.

In this same proposition, appellant also argues that he received ineffective assistance of appellate counsel in the court of appeals' proceedings on remand from Gillard I because counsel did not attempt to raise issues beyond the scope of the remand. Because counsel appropriately focused on the issues before the court on remand--that court's independent review of the sentence-- we overrule appellant's seventh proposition of law. ¹

We have previously held that R.C. 2929.05 does not require this court to address and discuss, in opinion form, each and every proposition of law raised in a capital case on appeal from the court of appeals. See, e.g., State v. Davis (1996), 76 Ohio St.3d 107, 110, 666 N.E.2d 1099, 1104; State v. Allen (1995), 73 Ohio St.3d 626, 628, 653 N.E.2d 675, 680. We thus address here only those issues that warrant discussion. For the reasons that follow, we find no actual conflict of interest in trial counsel's representation of appellant and affirm the judgment of the court of appeals as to both the convictions and sentence.

I CONFLICT OF INTEREST

Appellant contends that his trial counsel, Louis Martinez, labored under an actual conflict of interest because Martinez also represented William A. Gillard, appellant's brother. Martinez represented William when he pled no contest to and was found guilty of a misdemeanor for illegally discharging a firearm at the crime scene immediately prior to the murders. William was also under investigation by the grand jury during appellant's trial for his involvement in the murders.

At our direction, the trial court conducted a hearing to determine whether Martinez represented appellant under the cloud of an actual conflict of interest. Appellant presented testimony from three witnesses: Craig Chessler, co-counsel for appellant at trial; Don Wuertz, an investigator employed by Martinez during appellant's trial; and Charles Kirkwood, a retired professor of law. Martinez was unable to testify at the remand hearing, having suffered a stroke sometime after the trial.

The trial court concluded that Martinez did not represent appellant under an actual conflict of interest. Based on the limited nature of the remand by this court, the court of appeals dismissed appellant's appeal of the trial court's findings for lack of jurisdiction. State v. Gillard (Dec. 13, 1995), Stark App. No. 95CA0257, unreported.

A. Procedural Challenges

Appellant initially challenges this court's exercise of jurisdiction over the trial court's proceedings on remand absent the court of appeals' intermediate review. Appellant argues in his first proposition of law that the court of appeals, not this court, has jurisdiction over direct appeals from common pleas courts pursuant to Section 3(B)(2), Article IV of the Ohio Constitution. ² In this case, however, the decision of the trial court on the conflict issue is not returned to this court as "an appeal" from the trial court. This court never relinquished the jurisdiction acquired in Gillard II. By instructing the trial court in Gillard II to "return this cause" to this court, we retained our jurisdiction and remanded only the conflict issue for the limited purpose of conducting an evidentiary hearing. See, also, State v. Berry (1996), 77 Ohio St.3d 1439, 671 N.E.2d 1279 (remand to trial court for competency hearing while retaining jurisdiction over matter); see, generally, 16 Wright, Miller & Cooper, Federal Practice & Procedure (1996) 700, Section 3937.1 (describing and approving federal courts' use of remand-while-retaining-jurisdiction procedural device). Because appellant had no right to appeal the conflict issue to the court of appeals, we overrule his first proposition of law.

In his second proposition of law, appellant challenges the remedy we fashioned in Gillard II for the trial court's failure to inquire into the possible conflict of interest during the original trial. Appellant contends that a new trial is the sole remedy for the trial court's failure to conduct an inquiry into a potential conflict of interest at trial after the trial court has been alerted to one.

In support of his argument, appellant cites Wood v. Georgia (1981), 450 U.S. 261, 272, 101 S.Ct. 1097, 1104, 67 L.Ed.2d 220, 231, fn. 18, where the court stated that the United States Constitution "mandates a reversal when the trial court has failed to make an inquiry even though it 'knows or reasonably should know that a particular conflict exists.' " (Emphasis added.) In Wood, the trial court failed to inquire into a possible conflict of interest after the court was alerted to its potential during a probation revocation hearing. Nonetheless, the Wood court ordered the trial court to "hold a hearing to determine whether the conflict of interest * * * actually existed * * *," rather than a new revocation hearing. Only "[i]f the court finds that an actual conflict of interest existed" was it to grant a new revocation hearing. 450 U.S. at 273-274, 101 S.Ct. at 1104, 67 L.Ed.2d at 231.

Additionally, the United States Constitution is violated by an actual conflict of interest, not a possible one. Cuyler v. Sullivan (1980), 446 U.S. 335, 348-350, 100 S.Ct. 1708, 1718-1719, 64 L.Ed.2d 333, 346-347; State v. Manross (1988), 40 Ohio St.3d 180, 182, 532 N.E.2d 735, 738. When a possible conflict of interest exists, a defendant is entitled only to an inquiry by the trial court. The trial court's failure to conduct the inquiry, however, does not...