State v. Hamblin

• Decision Date: 15 June 1988
• Docket Number: No. 86-1846,86-1846
• Citation: 37 Ohio St.3d 153,524 N.E.2d 476
• Parties: The STATE of Ohio, Appellee, v. HAMBLIN, Appellant.
• Court: Ohio Supreme Court

Page 153

37 Ohio St.3d 153

524 N.E.2d 476

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

No. 86-1846.

Supreme Court of Ohio.

Submitted March 15, 1988.

Decided June 15, 1988.

John T. Corrigan, Pros. Atty., and Timothy J. McGinty, Cleveland, for appellee.

Jay B. White, Cleveland, for appellant.

HERBERT R. BROWN, Justice.

Our first task in a death penalty case is to consider the claims of error by appellant. Second, we must independently weigh the aggravating circumstances in this case against any factors which mitigate against the imposition of the death penalty. Finally, we must independently decide whether appellant's sentence is disproportionate to the penalty in similar cases. For the reasons set forth below, we affirm the judgment of the court of appeals and uphold the sentence of death.

I

At trial, the prosecution played portions of the tape-recorded interrogations of the appellant. Appellant asserts that he was denied due process when the tapes were admitted into evidence because they contained: (1) irrelevant and highly prejudicial statements, and (2) police theories of how the crimes were committed.

R.C. 2929.05(A) requires us to review the record. The tape-recordings encompass nearly one hundred pages of trial transcript. As a result of our review, we find that portions of the tapes contain inadmissible and irrelevant statements. The tapes place unsworn police testimony before the jury, which testimony does reinforce the prosecution's theory of the case. The testimony on the tapes does attack the appellant's character and credibility. Character and credibility of the appellant were not issues, since the appellant did not testify. See Evid.R. 404.

However, the trial court's error will be considered harmless if, absent the inadmissible statements, it is clear beyond a reasonable doubt that the jury would have found the appellant guilty. See Brown v. United States (1973), 411 U.S. 223, 231-232, 93 S.Ct. 1565, 1570-1571, 36 L.Ed.2d 208, Chapman v. California, (1967), 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705. Much of the taped material was cumulative to other properly admitted evidence and the state produced evidence, aside from the tapes, which conclusively established appellant's guilt. It is clear beyond a reasonable doubt that the jury would have found appellant guilty, without the inadmissible statements. Accordingly, the admission of the objectionable portions of the tapes was not prejudicial error.

II

Appellant asserts that he was denied the effective assistance of counsel which deprived him of a fair trial. Appellant's contention is based upon: (1) counsel's failure to object to the playing of the tape recordings, (2) counsel's failure to object to submission to the jury of a non-statutory aggravating factor, and (3) counsel's ineffective presentation at the mitigation stage of trial. The court of appeals did not address these three claims because appellant based his ineffective assistance of counsel claim upon different allegations in the court below. In the court of appeals, the appellant claimed ineffective assistance of counsel in that counsel (1) failed to renew a motion to sever the aggravated murder and aggravated robbery charges from the offenses of attempted murder and having a weapon under disability which resulted in prejudicial joinder, and (2) waived appellant's speedy trial rights, contrary to the best interests of appellant. Because this is a capital case, we will review all five arguments relating to the claim of ineffective assistance of counsel.

In Ohio, a properly licensed attorney is presumed competent. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 301, 31 O.O.2d 567, 568, 209 N.E.2d 164, 166. The appellant bears the burden of proving that his trial counsel was ineffective. To carry this burden, appellant must show that counsel made errors so serious that counsel failed to function as the "counsel" guaranteed by the Sixth Amendment. Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674. Appellant must also demonstrate that the deficient performance prejudicied his defense. To establish prejudice, appellant must show that there is a reasonable probability that but for counsel's mistakes, the result of the trial would have been different. Strickland, supra.

A

We find that counsel's failure to renew the motion to sever the offenses did not constitute ineffective assistance of counsel because the offenses were part of a common scheme or course of criminal conduct and properly joined under Crim.R. 14. Further, appellant failed to demonstrate that he was prejudiced by joinder of the offenses. (See discussion of the joinder question, infra.)

B

Defense counsel's waiver of appellant's speedy trial rights failed to constitute ineffective assistance of counsel since appellant was brought to trial within a reasonable time and appellant failed to show that he was prejudiced by the delay or denied a fair trial. The trial court ordered a continuance of the trial date to obtain a psychiatric examination of appellant. Appellant's counsel had requested the examination. Though counsel attempted to withdraw the request when appellant objected to the examination and refused to cooperate with mental health authorities, the court ordered the examination to go forward in order to make sure that appellant's rights were protected regarding his competency. Under the circumstances, counsel cannot be charged with ineffective assistance.

C

Appellant's contention that he was denied the effective assistance of counsel when counsel failed to object to the playing of the tape recordings is without merit. As noted earlier, the result of the trial would not have differed had the inadmissible portion of the tapes not been heard by the jury. See Strickland, supra.

D

Appellant's contention that his representation was inadequate because counsel did not object to submission to the jury of a non-statutory aggravating factor is also without merit. Appellant correctly recognizes that R.C. 2941.14(B) limits the aggravating circumstances which may be considered in imposing the death penalty to those specifically enumerated in R.C. 2929.04(A). State v. Johnson (1986), 24 Ohio St.3d 87, 24 OBR 282, 494 N.E.2d 1061, syllabus. The indictment charged appellant with aggravated murder with two separate specifications. Specification 1 stated that the offense " * * * was committed while the offender was committing or attempting to commit Aggravated Robbery and either the offender was the principal offender in the commission of the Aggravated Murder or if not the principal offender, committed the Aggravated Murder with prior calculation and design." This specification sets forth the aggravating circumstance of R.C. 2929.04(A)(7). Specification 2 stated that " * * * the offender has previously been convicted of Robbery on or about the 25th day of August, 1972, in the Lucas County Court of Common Pleas, Ohio Case No. CR 700450, having been convicted of the crime of Robbery in violation of Revised Code Section 2901.12 of the State of Ohio." This specification of a prior robbery (an aggravated felony) conviction is not one of the enumerated aggravating circumstances under R.C. 2929.04(A). The effective assistance argument fails because the challenged specification was never considered by the jury at the sentencing phase of the proceedings. This resulted from a tactical decision by defense counsel who sought to avoid having the specification read to the jury. ¹

Further, the trial judge instructed the jury that the "aggravating circumstances [sic]" " * * * are set forth in the verdicts that have been returned" (i.e., not as set forth in the indictment), and that the aggravating circumstance was " * * * the commission of aggravated murder while the Defendant, David Hamblin, was committing aggravated robbery, and the aggravating circumstance was set forth in the verdict, to wit, that the defendant was the principal offender in the commission of aggravated murder." This instruction properly described the aggravating circumstance set forth in R.C. 2929.04(A)(7) and was not in error.

E

Appellant argues that counsel's assistance was ineffective at the mitigation stage because no evidence was presented other than appellant's unsworn statement and testimony of Rhonda Lezark, appellant's girlfriend. Failure to present mitigating evidence at the penalty stage of a capital trial does not in itself constitute proof of ineffective assistance of counsel. Johnson, supra. This is especially true where no showing has been made that any mitigating evidence was in existence. Our review of the record indicates that counsel, with appellant's consent, made a tactical decision not to request presentence investigatory or psychiatric reports. The record supports the conclusion that the decision was a prudent one, in light of appellant's extensive criminal record and the pretrial psychiatric examination which found appellant competent.

We find that appellant was not denied his Sixth Amendment right to a fair trial by ineffective assistance of counsel.

III

Appellant argues that the trial court erred by not granting defense counsel's motion to sever the charges of aggravated murder and the aggravated robbery of Merrick from the charges of attempted murder of English and having a weapon while under disability. We reject appellant's argument for two reasons: (1) joinder was proper under Crim.R. 8 ² since the offenses were part of a common scheme or course of criminal conduct, and (2) appellant failed to show that he was prejudiced by joinder of the offenses, as required by Crim.R. 14. ³

Joinder of offenses is favored because it conserves resources by avoiding duplication inherent in multiple trials and minimizes the possibility of incongruous results that can occur in successive trials before different juries. State v. Thomas (1980), 61 Ohio St.2d 223, 225, 15 O.O.3d 234, 236, 400 N.E.2d 401, 404. ...