State v. Herring

• Decision Date: 03 December 2014
• Docket Number: No. 2011–0451.,2011–0451.
• Citation: 2014 Ohio 5228,28 N.E.3d 1217,142 Ohio St.3d 165
• Parties: The STATE of Ohio, Appellant, v. HERRING, Appellee.
• Court: Ohio Supreme Court

142 Ohio St.3d 165

28 N.E.3d 1217

2014 Ohio 5228

The STATE of Ohio, Appellant,

v.HERRING, Appellee.

No. 2011–0451.

Supreme Court of Ohio.

Submitted April 29, 2014.

Decided Dec. 3, 2014.

Paul J. Gains, Mahoning County Prosecuting Attorney, and Ralph M. Rivera, Assistant Prosecuting Attorney, for appellant.

Timothy Young, Ohio Public Defender, and Kimberly S. Rigby and Elizabeth Arrick, Assistant Public Defenders; and Andrea D. Lyon, for appellee.

PFEIFER, J.

{¶ 1} In this appeal, the state challenges a decision of the court of appeals granting the petition for postconviction relief of the defendant-appellee, Willie Herring, a death-row inmate. The state challenges the appellate court's finding that Herring's counsel provided ineffective assistance in failing to properly prepare for the mitigation phase of trial and the court's decision to order a new sentencing hearing.

{¶ 2} We hold that the court of appeals properly applied the standards set forth in Strickland v. Washington, 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984), in holding that trial counsel were deficient in preparing for mitigation and that the deficiency was prejudicial. Accordingly, we uphold the decision of the court of appeals vacating the death penalty and remanding the matter to the trial court for a new sentencing hearing.

I. Facts

{¶ 3} Evidence presented at trial showed that Herring and five other individuals robbed the Newport Inn, a bar in Youngstown, shortly after midnight on April 30, 1996. They shot five people, robbed the till, and left. Three of the five victims died and two others were seriously wounded. See State v. Herring, 94 Ohio St.3d 246, 762 N.E.2d 940 (2002).

{¶ 4} Herring was the evident ringleader of these crimes. Id . at 266, 762 N.E.2d 940. The participants had gathered at Herring's house before the robbery. Id . at 246, 762 N.E.2d 940. Herring provided three of the individuals with handguns and kept a 9 mm Cobray semiautomatic for himself. Id . at 246–247, 762 N.E.2d 940. Herring donned a Halloween mask, which was a store-bought mask similar to one seen in "slasher" movies. No one else had a similar mask; the others hid their faces with bandanas or a T-shirt. Id . at 247, 762 N.E.2d 940.

{¶ 5} Ronald Marinelli, the Newport Inn's owner, was tending bar that night. Several customers were in the bar, including Deborah Aziz, Herman Naze Sr., Dennis Kotheimer, and Jimmie Lee Jones. Id .

{¶ 6} Upon bursting into the bar, one of the gunmen ordered Naze to "[g]ive me your fucking money." Id . When Naze stated that he did not have any money, the gunman shot him. Then Herring shot Aziz, who fell to the floor. She managed to crawl away and hide behind a cooler and a trash can. She later described her assailant's mask as "a hard plastic, like one of those Jason masks." Id .

{¶ 7} Herring then walked around the end of the bar and approached Marinelli and the cash register. He shot Marinelli four times in the stomach from about five feet away. Marinelli managed to stay on his feet as Herring came closer. Id. at 247, 762 N.E.2d 940. Herring told Marinelli, "Give me your fucking money." Despite his wounds, Marinelli obeyed, handing over the cash in the register. Id . at 248, 762 N.E.2d 940. But Herring screamed that Marinelli had not given him everything. As Herring threatened to "blow [Marinelli's] brains out," Marinelli gave him money from a nearby drawer. Herring then screamed for more money. Marinelli urged him to "[b]e cool" and told him that there was no more. Herring responded by leveling his gun at Marinelli's head. Id .

{¶ 8} Marinelli reached into the drawer again and pulled out a gun. But Marinelli was so weak that Herring easily took it away from him. Marinelli collapsed. Herring then said, "You ain't dead yet, motherfucker," and shot Marinelli in the legs as he lay on the floor. Id .

{¶ 9} After Herring shot Marinelli, Aziz heard Kotheimer say, "You motherfucker." Then she heard more shots. Marinelli saw Kotheimer get shot but did not see who shot him. Nobody saw who shot Jones. Id .

{¶ 10} Following the arrival of the police, the shooting victims were taken to a Youngstown hospital. Naze, Jones, and Kotheimer died from their wounds. Id .

II. Trial results and the mitigation hearing

{¶ 11} At trial, Herring was convicted of three counts of complicity to commit aggravated murder, two counts of attempted aggravated murder, two counts of aggravated robbery, and firearm specifications. 94 Ohio St.3d at 248–249, 762 N.E.2d 940. As to Count One, the murder of Jones, the jury found Herring not guilty as the principal offender but guilty as an accomplice. Herring was also found guilty of three course-of-conduct death-penalty specifications that were attached to each of the murder counts, pursuant to R.C. 2929.04(A)(5). Id . at 249, 762 N.E.2d 940.

{¶ 12} During the mitigation hearing, trial counsel presented evidence showing that Herring's accomplices did not receive the death penalty. The defense also presented the testimony of Deborah Herring, the defendant's mother, and Nicole Herring, the defendant's sister.

{¶ 13} Deborah testified that Herring has six brothers and sisters. She testified that Herring had a good and loving relationship with his siblings and continues to stay in touch with them. Herring helped with chores and helped take care of his younger brothers and sisters when he was growing up. Deborah asked the jurors to spare her son's life.

{¶ 14} Nicole testified that Herring helped to take care of his younger brothers and sisters. She stated that she had a close relationship with Herring and that they did numerous things together. Finally, Nicole asked the jury to spare her brother's life.

{¶ 15} On rebuttal, Timothy Franken, an assistant prosecuting attorney, testified that Antwan Jones, one of the accomplices, was originally charged exactly the same as Herring. The death-penalty specifications, however, were voluntarily dismissed against Jones because the prosecutors did not think that they could prove them. Franken also testified that Adelbert Callahan was charged exactly the same as Herring, but Callahan could not receive the death penalty because he was a juvenile at the time of the crimes. Franken also mentioned that Eugene Foose, another accomplice, was a juvenile. The two other accomplices had had lesser culpability. Louis Allen did not shoot anyone; indeed, he ran away as soon as the shooting started. Kitwan Dalton, the getaway driver, neither entered the Newport Inn nor carried a weapon. 94 Ohio St.3d at 268, 762 N.E.2d 940.

{¶ 16} During closing arguments, trial counsel emphasized that Herring had been convicted as an aider or abettor and that he had been found not guilty as a principal offender in committing the murders. Trial counsel also argued regarding the disparity in sentencing that would exist if Herring were sentenced to death when the state had not pursued death sentences for his accomplices. In addition, counsel raised Herring's youth as a mitigating factor; he was 18 at the time of the offenses.

{¶ 17} After the mitigation hearing, the jury recommended death for all three aggravated murders. The trial court sentenced Herring to death. Id . at 249, 762 N.E.2d 940.

{¶ 18} On February 27, 2002, this court affirmed Herring's convictions and death sentence. Id. at 269, 762 N.E.2d 940. The United States Supreme Court denied certiorari. Herring v. Ohio, 537 U.S. 917, 123 S.Ct. 301, 154 L.Ed.2d 202 (2002).

III. Postconviction proceedings

A. Herring's postconviction claim

{¶ 19} On September 17, 1999, Herring filed his petition for postconviction relief. He requested discovery and an evidentiary hearing. Herring's primary claim challenged trial counsel's effectiveness in failing to conduct an adequate mitigation investigation prior to his mitigation hearing. Herring presented affidavits and other documentary evidence in support of his claim.

1. Affidavits from experts and family members

{¶ 20} Dr. Jolie Brams, a psychologist, submitted an affidavit stating that the jurors were presented "no meaningful psychological information" about Herring's "problematic functioning over the course of his life." She stated that no lay or expert testimony was presented that "would have given the jurors an opportunity to understand the sociocultural, psychological, developmental and intellectual factors that operated to bring Mr. Herring to that particular point in time."

{¶ 21} Dr. Brams indicated that the testimony of Herring's mother and sister during the mitigation hearing presented a distorted picture of Herring's upbringing. As to their testimony, Dr. Brams stated: "The jurors only saw two supposedly caring individuals which did nothing to educate them regarding the marked dysfunction in Mr. Herring's family and the amazingly dysfunctional role models by whom this young [man] was raised. Instead, they were presented a picture of a family that cared."

{¶ 22} Dr. Brams discussed her own evaluation of Herring's family, his history, and his past and present functioning that could have been presented during mitigation. She stated that Herring's "childhood was remarkably dysfunctional in almost every aspect." She stated that Herring "was raised in an environment in which basically every parental figure, caregiver, family member, and associate was involved in illegal activities, significant drug and alcohol abuse, and to whom the consequences of violating the law evoked little anxiety." Dr. Brams described Herring as a " ‘feral child,’ who roamed the neighborhood aimlessly, without any adult having meaningful or consistent concern."

{¶ 23} Dr. Brams stated that Herring began using marijuana and alcohol on a frequent basis by the time he was 13 or 14. Herring's active substance abuse was a primary factor leading to his failure in school and his eventual decision to drop out of school.

{¶ 24} Herring's family members introduced him to gangs and drug dealing, which was described to Dr. Brams as "the family business." Dr. Brams added that...