State v. Johnson, No. 85-93

• Court: United States State Supreme Court of Ohio
• Writing for the Court: CLIFFORD F. BROWN; CELEBREZZE; CELEBREZZE; WRIGHT; CELEBREZZE; Finally, I join in the conclusion that the trial court's failure to grant the pretrial continuance requested by appellant's attorneys was an abuse of discretion. We recognize that at some
• Citation: 24 OBR 282,494 N.E.2d 1061,24 Ohio St.3d 87
• Parties: , 24 O.B.R. 282 The STATE of Ohio, Appellee, v. JOHNSON, Appellant.
• Decision Date: 18 June 1986
• Docket Number: No. 85-93

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24 Ohio St.3d 87 494 N.E.2d 1061, 24 O.B.R. 282 The STATE of Ohio, Appellee,
v.
JOHNSON, Appellant. No. 85-93. Supreme Court of Ohio. June 18, 1986. Syllabus by the Court

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).

[494 N.E.2d 1062] On April 26, 1983, the body of Eunice Graster was found by police in the basement of the Reno Hotel in Cleveland, where she had been employed as a desk clerk. She had been shot to death. Between $500 and $900 was missing from the hotel coffers.

Shortly after the murder, law enforcement authorities caused a warrant to be issued for the arrest of appellant, Gary Johnson. On May 3, 1983, appellant, having learned of the warrant, voluntarily surrendered to police. On that day he was indicted for aggravated murder with two specifications: (1) that appellant was committing or attempting to commit or fleeing immediately after committing or attempting to commit aggravated robbery, and (2) that appellant had a firearm on or about his person or under his control. Appellant was also charged with aggravated robbery.

Before jury selection began, one of appellant's attorneys informed the court that new evidence had been discovered, that the defense had not received all evidence requested during the discovery proceedings, and that the defense had just been informed that there were other persons inside the small hotel at the time of the murder ¹ but the defense had not had a chance to ascertain their identities or otherwise investigate them. Consequently, the defense requested a continuance of one week. The trial judge refused, expressing the view that the prosecution had only circumstantial evidence, and that no fingerprints belonging to appellant had been found

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at the crime scene. In view of defense counsel's expertise and experience in criminal cases, the judge stated he could see no compelling reason for granting a continuance. The court then overruled defense counsel's alternative motion to be excused from the case for the reason that they could not provide appellant with the effective assistance of counsel.

Trial by jury commenced on October 3, 1983, and ended with verdicts of guilty on the afternoon of October 13. Immediately after the verdict was returned, the trial judge asked defense counsel if they had any requests before the mitigation hearing. One of appellant's attorneys moved for a recess of "ten minutes or so * * * to explain to * * * [the defendant] what our position is * * * and we would like for him to consider what action we would like for him to take." After a short adjournment, the penalty phase of the proceeding was set for 9:00 the following morning.

During the penalty stage, the prosecution produced and examined two witnesses and offered four exhibits. The defense presented only the unsworn statement of the appellant. No witnesses, no exhibits nor evidence of any kind in mitigation was offered to the court and jury. The jury found that the state had proved the two specifications beyond a reasonable doubt, and that they, when pitted against the mitigating "evidence," overcame the mitigating factors. The jury recommended the death penalty. The trial court, in the separate opinion mandated by law, ² adopted the jury's recommendations and imposed the death sentence.

The court of appeals affirmed appellant's convictions and sentence.

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

John T. Corrigan, Pros. Atty., and Allan B. Levenberg, Cleveland, for appellee.

James R. Willis, Cleveland, for appellant.

CLIFFORD F. BROWN, Justice.

This court has thoroughly and painstakingly reviewed the entire record in this [494 N.E.2d 1063] case. Because we are convinced that the record affirmatively demonstrates that appellant was denied his constitutional right to the effective assistance of counsel, we hereby reverse appellant's convictions, vacate the death sentence, and remand the cause for further proceedings.

We turn our attention first to the failure of defense counsel to conduct any investigation into appellant's background for purposes of obtaining evidence in mitigation, and their resulting failure to present any such evidence at the penalty stage of the proceeding.

Our examination of the record reveals that counsel for the defense openly stated to the court that he had not even discussed with his client the penalty aspect of the case. ³ Counsel then asked for, and was given, a

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ten-minute recess. Following this recess, the trial court, with the acquiescence of defense counsel, set the hearing for the very next day. At the hearing, the defense presented only the unsworn statement of appellant. No mitigating evidence of any kind was offered.

This scenario, depicting as it does the complete lack of preparation and zeal on the part of defense counsel regarding the question of whether their client should live or die, compels the conclusion that appellant was deprived of any effective, meaningful assistance from his counsel at this obviously critical stage of the proceedings.

" 'Of all the rights that an accused person has, the right to be represented by counsel is by far the most pervasive, for it affects his ability to assert any other rights he may have.' " United States v. Cronic (1984), 466 U.S. 648, 654, 104 S.Ct. 2039, 2044, 80 L.Ed.2d 657, quoting Schaefer, Federalism and State Criminal Procedure (1956), 70 Harv.L.Rev. 1, 8. "Unless the accused receives the effective assistance of counsel, 'a serious risk of injustice infects the trial itself.' " Cronic, supra, at 656, 104 S.Ct. at 2045, quoting Cuyler v. Sullivan (1980), 446 U.S. 335, 343, 100 S.Ct. 1708, 1715, 64 L.Ed.2d 333.

The United States Supreme Court has found that "[f]or purposes of describing counsel's duties * * * [a] capital sentencing proceeding need not be distinguished from an ordinary trial." Strickland v. Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2064, 80 L.Ed.2d 674. "[C]ounsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary." Id. at 691, 104 S.Ct. at 2066. A lawyer has a duty to investigate "the circumstances of the case and to explore all avenues leading to facts relevant to the merits of the case and the penalty in the event of conviction. * * * " 1 A.B.A. Standards for Criminal Justice (1982 Supp.), No. 4-4.1.

In cases similar to the one at bar, the federal courts have held that a lack of reasonable investigation and preparation for the sentencing phase of a capital trial constitutes ineffective assistance of counsel. ⁴ In Pickens v.

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iLockhart (C.A. 8, [494 N.E.2d 1064] 1983), 714 F.2d 1455, the defendant was sentenced to die. His attorney had failed to investigate defendant's background and offered no evidence in mitigation. The circuit court viewed this as an abdication by the attorney of his responsibility toward his client, which resulted in imposition of the death penalty by default.

" * * * Given the severity of the potential sentence and the reality that the life of * * * [the defendant] was at stake, we find that it was incumbent upon * * * [his] counsel to offer mitigating proof. There exists no indication in the record that * * * [counsel] made any tactical decision; it appears much more likely that he abdicated all responsibility for defending his client in the sentencing phase. We cannot view such an abdication as meeting the level of effective assistance required under the sixth amendment. * * * [I]t is only after a full investigation of all the mitigating circumstances that counsel can make an informed, tactical decision about which information would be most helpful to the client's case. In the present case, it is undisputed counsel failed to make any investigation whatsoever. * * * He was left with no case to present. A total abdication of duty should never be viewed as permissible trial strategy. * * * Here, counsel's default deprived * * * [the defendant] of the possibility of bringing out even a single mitigating factor. Mitigating evidence clearly would have been admissible. * * * The jury would have considered it and possibly been influenced by it. * * * We find that * * * [the defendant] was actually and substantially prejudiced in the penalty phase of the case." Id. at 1467. (Emphasis sic. ) See, also, Blake v. Kemp (C.A. 11, 1985), 758 F.2d 523, certiorari denied (1985), 474 U.S. 998, 106 S.Ct. 374, 88 L.Ed.2d 367; King v. Strickland (C.A. 11, 1983), 714 F.2d 1481.

It is quite clear from the foregoing that the duty of defense counsel to investigate his client's background for mitigating factors is an indispensable component of the constitutional requirement that a criminal defendant--and particularly one on trial for his life--be afforded effective representation and assistance from his lawyer. The maladroit presentation offered by appellant's attorneys in the sentencing phase did not, by any standard, meet that requirement. No mitigating evidence of any kind was offered. No continuance was requested for purposes of investigating appellant's background for mitigating factors. The only "evidence" for the defense heard by the jury was a lengthy unsworn statement by appellant protesting his innocence, followed by a closing argument by defense

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counsel in a similar vein, actually berating the jurors for their guilty verdict and repeatedly urging them to "reconsider the evidence." These statements were not only pointless at that stage, but almost certainly prejudiced appellant by making the jurors feel that their integrity was being impugned. Given that appellant's attorneys had a particular duty to render meaningful assistance to appellant, their failure to investigate appellant's background to obtain mitigating evidence, combined with the inept presentation of pointless and provocative...