State v. Hutton, 100 Ohio St.3d 176 (Ohio 11/5/2003), 2000-0816.

• Decision Date: 05 November 2003
• Docket Number: No. 2000-1540.,No. 2000-0816.,2000-0816.,2000-1540.
• Citation: 100 Ohio St.3d 176
• Court: Ohio Supreme Court
• Parties: THE STATE OF OHIO, APPELLEE, <I>v.</I> HUTTON, APPELLANT.

Page 1

100 Ohio St.3d 176

THE STATE OF OHIO, APPELLEE,v.

HUTTON, APPELLANT.

No. 2000-0816.

No. 2000-1540.

Supreme Court of Ohio.

Submitted June 3, 2003.

Decided November 5, 2003.

SYLLABUS OF THE COURT

The doctrine of res judicata does not apply to bar a claim of ineffective assistance of appellate counsel not previously raised in an appeal where the defendant was represented on that appeal by the same attorney who allegedly had provided the ineffective assistance, even where the defendant was also represented on that appeal by another attorney who had not represented the defendant at the time of the alleged ineffective assistance.

Criminal law — Aggravated murder — Death penalty upheld — Appellate procedure — Doctrine of res judicata does not apply to bar a claim of ineffective assistance of appellate counsel not previously raised in an appeal, when.

APPEALS from the Court of Appeals for Cuyahoga County, No. 51704.

William D. Mason, Cuyahoga County Prosecuting Attorney, and Lisa Reitz Williamson, Assistant Prosecuting Attorney, for appellee.

James A. Draper, Cuyahoga County Public Defender, and Robert M. Ingersoll, Assistant Public Defender, for appellant.

MOYER, C.J.

{¶1} In 1986, a jury found that appellant, Percy "June" Hutton, murdered Derek "Ricky" Mitchell and attempted to kill Samuel Simmons Jr. on September 16, 1985. Hutton was convicted of aggravated murder with two death specifications. After a penalty hearing, the trial court sentenced Hutton to death.

{¶2} Hutton had once been a close friend of Mitchell and Simmons. However, Hutton became angry with the two men because he believed that they had stolen from him. On Friday, September 13, or Saturday, September 14, 1985, outside the house where Samuel Simmons Jr., then lived, Hutton confronted Simmons over the theft of a sewing machine belonging to Hutton.

{¶3} Claiming that he had seen Mitchell trying to sell the machine, Hutton demanded its immediate return. Simmons suggested that Hutton talk to Mitchell. During this conversation, Mitchell arrived. He and Hutton entered the residence and went upstairs together. When they returned, according to Simmons, Hutton said that "it wasn't what he was looking for and if he found out we had anything to do with what was missing or stolen he was going to kill us." Hutton also told Mitchell, "I'm tired with you f* * *ing with me and stuff like that."

{¶4} Around midnight on Monday, September 16, 1985, Hutton drove to Simmons's house in a gray Chrysler Cordoba, accompanied by Bruce Laster, whose sister was engaged to Hutton. Hutton asked Simmons to come with him and help him work on a car. When Simmons got into Hutton's car, he noticed a .22-caliber rifle lying on the back seat.

{¶5} Hutton drove to Mitchell's house, stating that he wanted to talk to Simmons and Mitchell. When they arrived, Simmons went in and brought Mitchell outside, telling him that "June wanted to talk to him." Hutton then confronted Mitchell, demanding the return of his sewing machine and accusing Mitchell of stealing some tires from Hutton's backyard. Hutton said that he had hidden $750 in the sewing machine.

{¶6} Mitchell denied taking the machine. However, Hutton insisted that Mitchell had tried to sell it to a Mr. Evans. Hutton demanded that Mitchell come with him to Evans's house to settle the issue. Hutton threatened to "f* * * [Mitchell] up" if Evans confirmed Mitchell's guilt.

{¶7} Mitchell and Simmons got into the car. Before pulling away from the curb, Hutton pointed the rifle into Simmons's side and said: "I don't appreciate you all breaking in my sister's house."

{¶8} Instead of going to Evans's house, Hutton drove to a parking lot behind an RTA bus facility. Hutton got out of the car and ordered Mitchell to get out as well. Hutton and Mitchell then walked a short distance from the car. Simmons could not hear their conversation, but he saw Hutton put a pistol against Mitchell's head.

{¶9} Hutton and Mitchell returned to the car. With Mitchell giving directions, Hutton drove to an area known as "the Projects." Hutton and Mitchell went into a building and emerged after a few minutes with a white sewing-machine case.

{¶10} Hutton drove to his mother's house, took the case inside, and returned to the car. He then drove to the next street and pulled into an alley where a Cadillac El Dorado was parked. Hutton told Simmons that the El Dorado was the car he wanted to work on. Simmons got out of Hutton's car. Hutton then moved his car to the other end of the street. Leaving Laster and Mitchell in the car, he walked back to the alley, where Simmons was waiting.

{¶11} Hutton broke into the El Dorado with a screwdriver. When Simmons got inside, Hutton opened the hood and told him to try starting the engine. Hutton then walked back to Simmons, shot him twice in the back of the head, and ran up the alley.

{¶12} Unable to move at first, lying half in and half out of the car, Simmons cried for help. He managed to get up and stagger away in search of assistance. Simmons went first to the nearby home of Hutton's mother, then to Mary Etta Pollard's house next door. He banged on Pollard's front door and cried for help. Then he heard Hutton's car coming out of the nearby alley. He ran into Pollard's back yard and pounded on the back door, shouting that he had been shot.

{¶13} Hutton drove up and stopped in front of Pollard's house. He urged Simmons to "come here" or "come from back there." Hutton noticed that Pollard's son was looking out from his front door and told him to close the door. Simmons begged Hutton to take him to the hospital. Hutton said, "Just shut up and get in the car," and Simmons obeyed. Mitchell and Bruce Laster were in the car with Hutton.

{¶14} Telling Mitchell that some unknown assailant had shot Simmons, Hutton drove to St. Luke's Hospital. Simmons asked Mitchell to go inside with him, but Mitchell said, "No. We [are] going to get the mother-f* * *er that did this to you."

{¶15} At 2:30 a.m., Mitchell, Hutton, and Laster returned to Mitchell's home. They woke Mitchell's girlfriend, Eileen Sweeney, and took her to the hospital, where they dropped her off. Sweeney went into the hospital to visit Simmons. Telling her that Hutton had shot him, Simmons sent her to warn Mitchell to get out of the car. She went outside, but the car was gone.

{¶16} Hospital security officer Paul Whitcomb saw a Chrysler Cordoba drop Simmons off and leave "in a hurry." About half an hour later, Whitcomb saw the same car drop off Sweeney. After Sweeney went inside, Whitcomb saw the same car parked across the street from the hospital. He sent security officer Gary Barnhard to get the license number. As Barnhard drove past the car, he saw its two occupants crouch down in an attempt at concealment. Then the car left. A subsequent check of the license number disclosed that the gray Chrysler was registered to Hutton's fiancée, Celeste Laster.

{¶17} Hutton and Bruce Laster later returned to the hospital without Mitchell. Sweeney was still there. Hutton told her that Mitchell was at home and offered to drive her back. However, once he had Sweeney inside the car, Hutton took her to a park instead. There, Hutton and Sweeney got out of the car. Laster then drove off, and Hutton proceeded to rape Sweeney. During the rape, Hutton told Sweeney that "Ricky wasn't coming back." According to Sweeney, Hutton had in his possession a small handgun with a white handle and a silver-colored barrel.

{¶18} When Laster returned with the car, Sweeney saw Hutton remove two rifles from the trunk and put them in the rear passenger compartment. Hutton then drove Sweeney home to the apartment she shared with Mitchell.

{¶19} When they arrived, Mitchell was not there. The door to the apartment had been damaged and the apartment was in disarray. Sweeney was too "scared and nervous" to drive, so Hutton drove her to the home of LaWanda Mitchell, the sister of Ricky Mitchell. Hutton followed Sweeney into LaWanda's house. According to Sweeney, Hutton told her that "Ricky [Mitchell] wasn't coming back," and that "if [she] told, someone would be looking for [her]."

{¶20} On Tuesday, September 17, Hutton drove to Indianapolis to enroll in a course for automotive mechanics at the Lincoln Technical Institute.

{¶21} On September 30, 1985, the body of Derek Mitchell was found near an intersection in Cleveland with a large tire lying on the body. An autopsy disclosed that Mitchell had been shot to death. Two .22-caliber long rifle bullets were recovered from the body; a firearms expert testified that these could have been fired from either a rifle or a handgun. The expert testified that the bullets that killed Mitchell had the same class characteristics as a bullet that had been removed from Simmons's head, but he could not tell whether all three had been fired from the same gun. The murder weapon was never found.

{¶22} The defense presented evidence that Mitchell was not killed on September 16, 1985, but at some later time while Hutton was in Indianapolis. Denise Richardson testified that she spoke to Mitchell at 3:00 p.m. on September 17, 1985, the day after the state claims Mitchell was murdered. According to Hutton, he was in Indianapolis at the time Richardson spoke to Mitchell. Hutton claimed that he stayed in Indianapolis until October 3, except for two brief visits to Cleveland on September 21 and 28. An employee of the Indianapolis YMCA saw Hutton there sometime after 4:00 p.m. on September 17. The YMCA employee testified that Hutton had paid rent for the period of September 17 through October 3.

{¶23} On October 4, 1985, Cleveland Police Detective Robert Moore spoke to Hutton on the telephone. Hutton agreed to return to Cleveland and surrender to Moore at a prearranged time and place. On October 5, Hutton surrendered.

{¶24} Hutton and Laster were jointly indicted on two counts of aggravated murder for killing Derek Mitchell. The first count charged that...