State v. Gillard

• Decision Date: 12 August 1992
• Docket Number: No. 90-1613,90-1613
• Citation: 64 Ohio St.3d 304,595 N.E.2d 878
• Parties: The STATE of Ohio, Appellee, v. GILLARD, Appellant.
• Court: Ohio Supreme Court

Page 304

64 Ohio St.3d 304

595 N.E.2d 878

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

No. 90-1613.

Supreme Court of Ohio.

Submitted June 2, 1992.

Decided Aug. 12, 1992.

Appellant, John Grant Gillard, was indicted for the aggravated murders of Denise Maxwell and Leroy Ensign. For each of these two murders, two counts were returned: one charging that the offense was committed with prior calculation and design (R.C. 2903.01[A] ), and one charging felony murder (R.C. 2903.01[B] ). Each of the four counts of aggravated murder carried two death penalty specifications. Appellant was also indicted (on two separate counts) for the attempted aggravated murder of Ronnie W. Postlethwaite. A seventh count of the indictment charged appellant with aggravated burglary.

Appellant was tried before a jury and was convicted of all charges and specifications alleged in the indictment. For the aggravated murders of Maxwell and Ensign, the trial court, following the jury's recommendation, sentenced appellant to death.

On appeal, the court of appeals reversed the judgment of the trial court and remanded the cause for a new trial concluding that appellant's convictions were not proper. Therefore, the court of appeals did not independently review appellant's death sentences for appropriateness and proportionality in accordance with R.C. 2929.05(A). The court of appeals did, however, hold against appellant on a number of appellant's assignments of error--many of which concerned the sentences of death.

Thereafter, the state of Ohio, appellee, appealed to this court. Appellant cross-appealed on two issues relative to the penalty of death. In State v. Gillard (1988), 40 Ohio St.3d 226, 533 N.E.2d 272, we rejected appellant's arguments on cross-appeal, reversed the judgment of the court of appeals (thereby reinstating appellant's convictions and sentences), and remanded the cause to the appellate court to conduct, pursuant to R.C. 2929.05(A), an independent review of the death sentences for appropriateness and proportionality. ¹ On remand, the court of appeals affirmed appellant's convictions and the sentences of death.

The cause is before this court upon an appeal as of right.

Robert D. Horowitz, Pros. Atty., and Ronald Mark Caldwell, Canton, for appellee.

Randall M. Dana, Public Defender, Pamela A. Conger and Cynthia A. Yost, Columbus, for appellant.

DOUGLAS, Justice.

Given our previous determination in Gillard, supra, our only remaining task in this death penalty case is to review appellant's propositions of law relating to the court of appeals' review of the death sentences for appropriateness and proportionality, and to conduct our own independent review of the appropriateness and proportionality of the death sentences pursuant to R.C. 2929.05(A). However, appellant has raised an additional matter before us which is of paramount importance. Specifically, appellant claims that his trial counsel, Louis H. Martinez, may have labored under a conflict of interest in his representation of appellant at trial. Although appellant has never previously raised this issue, we have decided to address the question because of the possibility that appellant has been denied his most fundamental constitutional rights under the Fifth and Sixth Amendments to the United States Constitution. Where, as here, a possible violation of due process and of the right to counsel exists, we are not only empowered to consider the question, but it is our duty to do so as a court of last resort. The facts giving rise to the controversy are as follows:

I

The crimes in this case were committed in January 1985 at 213 Kennet Court, Canton, Ohio. Appellant and his brother, William M. Gillard, were arrested in connection with the shootings. Both men were represented by Attorney Louis Martinez at a preliminary hearing ² in Canton Municipal Court on January 11, 1985. Following the hearing, appellant was bound over to the Stark County Grand Jury which returned the indictment against him. The municipal court dismissed the complaint against William Gillard for aggravated murder and attempted aggravated murder. However, the court found cause to believe that William did commit a misdemeanor offense by discharging a firearm outside the residence at 213 Kennet Court just before the killings and the attempted aggravated murder. On Martinez' advice, William pled no contest to the misdemeanor offense.

The case against appellant proceeded to trial where appellant was again represented by Martinez. Meanwhile, the Stark County Grand Jury continued its investigation into William Gillard's involvement in the crimes. During appellant's trial, the state presented evidence implicating William Gillard as a participant in the commission of the crimes. Martinez attempted to preclude and/or discredit evidence of William's involvement in the matter.

During the fifth week of appellant's trial, Martinez called William Gillard to testify as a witness for the defense. At this time the assistant prosecuting attorney, Alicia M. Wyler, informed the trial court (in a discussion in chambers) of a possible conflict of interest facing attorney Martinez:

"MISS WYLER: * * * William Gillard is currently under investigation in the proceedings continuing into the investigation of these crimes * * *. The Grand Jury has heard evidence on this man * * * since February 5th [1985] * * * and there very well may be a criminal indictment on this man. This has been an on-going investigation for gathering additional evidence.

"This man [William Gillard] clearly, in addition to being advised of his Fifth Amendment Right to remain silent, it is my understanding that Mr. Martinez has represented this man up to this point and I think it becomes clear that there could be a conflict at this point. I think that the Court should advise this man of his right to appoint an attorney other than Mr. Martinez who can clearly advise him of the situation and his rights.

" * * *

"I think that we clearly have a conflict of interest here. * * * I feel that we all have a duty to assign him [William] an attorney and have him fully advised on this particular matter.

"MR. MARTINEZ: I will say to this Court that I have represented Bill Gillard in this matter from the very first day. I do not feel that there is a question of a conflict. I think I am capable of advising him of his rights.

"However, you can appoint him a lawyer if you feel that there is a conflict. * * *

" * * *

"MISS WYLER: I just think that given the seriousness of this matter that we should get another attorney to talk to him [William] about this matter. Obviously, Mr. Martinez can not see the conflict. However, I see there is a conflict here if we do not advise * * * [William] further.

"MR. MARTINEZ: I don't know what the purpose is in this trial of placing all this evidence against William Gillard. * * * But I think that I am a competent attorney. I don't know, but I was competent enough to represent this man at the preliminary hearing. I have represented them both.

" * * *

"THE COURT: Well what we're going to do here is to send this Jury home at the present time. I think that the Court will have William Gillard come in and come before the Court and I will inquire of him as to his indigency and I will inform him of the possible conflict and attempt to solve this question this morning and attempt to appoint someone immediately to speak with him * * *."

Thereafter, the trial court advised William Gillard of his Fifth Amendment right not to testify as a witness in the proceedings against appellant, given the ongoing investigation by the Grand Jury into William's involvement in the crimes. In further addressing William, the trial judge stated:

" * * * [T]he Court finds that there could be a potential conflict of interests with regard to Attorney Martinez representing both you and your brother, John Gillard. Not that Mr. Martinez would not strive very hard to see to it that, uh, or conduct himself in a way which in which he would do so with integrity with regard to this representation of both you and John Gillard, but there may be conflicts in regard to his representing both of you, which would prejudice you, yourself, John Gillard and the State of Ohio, uh, any one or all of those parties, should Mr. Martinez continue as your legal counsel." (Emphasis added.)

Accordingly, the trial court appointed independent counsel to represent William Gillard. However, the trial court did not address appellant with respect to any possible conflict of interest and did not inquire into whether Martinez' representation of William affected, or would affect, Martinez' representation of appellant.

Upon conferring with counsel, William Gillard waived his Fifth Amendment rights and chose to testify as a witness for the defense. On direct examination, Martinez elicited testimony from William that the charges against him had been dismissed at the preliminary hearing while the charges against appellant were not. Further, William denied ever having a gun in his possession on January 1, 1985, and denied any involvement in the shootings. For the most part, William's testimony on direct examination provided an explanation for all evidence implicating him as a participant in the crimes. On cross-examination, over Martinez' objection, the prosecutor impeached William's testimony with William's no contest plea to the misdemeanor offense of discharging a firearm which, for all practical purposes, placed William at the scene of the crime just prior to the murders.

II

In his first proposition of law, appellant claims that the trial court knew or should have known of a possible conflict of interest posed by Martinez' dual representation of William and appellant, and that, therefore, the trial court had a duty to inquire into the possible conflict to determine whether Martinez' loyalties to appellant were, in fact, divided. According to appellant, the trial court's failure...