State v. Michael B. Buhrman, 97-LW-3447

CourtUnited States Court of Appeals (Ohio)
Writing for the CourtYOUNG, P.J.
PartiesSTATE OF OHIO, Plaintiff-Appellee v. MICHAEL B. BUHRMAN, Defendant-Appellant C.A. CASE NO. 96 CA 145
Docket NumberC.A. 96 CA 145,97-LW-3447
Decision Date12 September 1997

STATE OF OHIO, Plaintiff-Appellee

MICHAEL B. BUHRMAN, Defendant-Appellant

T.C. CASE NO. 92CR309/ 93CR77

No. C.A. 96 CA 145

97-LW-3447 (2nd)

September 12, 1997

ROBERT K. HENDRIX, Atty. Reg. No. 0037351, 45 N. Detroit Street, Xenia, Ohio 45385, Attorney for Plaintiff-Appellee

MICHAEL B. BUHRMAN, Warren Correctional Institute, P. O. Box 120, Lebanon, Ohio 45036, Defendant-Appellant



Michael B. Buhrman ("Buhrman") appeals the trial court's denial of his motion for post-conviction relief.


The facts of this case are virtually incomprehensible. We were able, however, to piece together the following version of the events. On the evening of February 23, 1983, Daniel Wilson, Patti Stanley, and Jon Stroop were murdered in Wilson's home. The police did not have any strong leads on who was responsible for the triple murders until April, 1987, when the police arrested Steve Mountjoy on unrelated charges. During an F.B.I. questioning of Mountjoy, he admitted his involvement in the murders and initially fingered Ernie Stepp, James Stelts, and Buhrman as accomplices to the murders. Mountjoy originally minimized his own involvement in the murders. He confessed only to driving the three men to Wilson's house that evening, and waiting in the car while they went into the house and committed the murders.

On May 15, 1987, Mountjoy recanted portions of his statement. Mountjoy told the F.B.I. that he lied about Ernie Stepp being present during the murders. Mountjoy explained that he had fingered Ernie Stepp because he wanted to "clean out" the entire Stepp family. (At this point it should be noted that Buhrman is related to the Stepp family as a nephew of Bill Stepp, the brother of Ernie Stepp.) Mountjoy also informed the F.B.I. that, on the evening before the murders, Buhrman called Mountjoy and told Mountjoy to meet him at Bill Stepp, Sr.'s, garage business. After Mountjoy arrived at the garage, Buhrman directed Mountjoy to drive Stelts and him to Indian Ripple Road. According to Mountjoy, Buhrman told him that they were going to "rip off" a guy who was holding a large amount of cocaine and money. Buhrman also said that Mike Davis had "steered" the job to him because Wilson was pressuring Davis to pay off a large drug debt that he owed to him. When the men reached Wilson's house, Stelts called the robbery off, commenting that they should run it by Bill Stepp, Sr., first.

The next day, Buhrman called Mountjoy and asked him to come over to the garage he owned. When Mountjoy arrived, Buhrman, Bill Stepp, Michael Davis, Terry Ward, and Stelts were present. During their meeting, Buhrman explained to Bill Stepp that they planned to rob Wilson. After Buhrman finished relaying their plan to him, Bill Stepp, Sr., okayed the robbery.

After the meeting, Terry Ward drove Buhrman, Stelts and him to Wilson's house. Ward dropped off Buhrman, Stelts, and Mountjoy below Wilson's residence. The three men then walked up to the rear of Wilson's residence and tried to peer through the windows, but were unable to see inside because the drapes were drawn. The men decided to hide in the bushes and wait for Stanley and Stroop to leave Wilson's house as they anticipated that they would be leaving soon on a drug deal.

After ten or fifteen minutes, Stanley and Stroop finally exited Wilson's house. As Stanley and Stroop walked across Wilson's front yard, the three men yelled "Police, freeze!" Buhrman purportedly grabbed Stroop and took him to the side of the house. Stelts and Mountjoy used Stanley to gain access to the house. They had Stanley knock on Wilson's door, and, when Wilson opened the door, Stelts shot Wilson several times. Stelts picked Wilson up and placed him on the couch. Meanwhile, Stanley escaped. When Stelts noticed that Stanley had escaped, he pointed his gun at Mountjoy and told him to find Stanley and bring her back. Stelts threatened Mountjoy that if he did not find her, he would be "next." As Mountjoy was leaving the house, he passed Buhrman who was bringing Stroop into the house. Buhrman told Mountjoy that he believed that Stanley was hiding behind a tree near the house. Mountjoy located Stanley and brought her back to the house.

When Mountjoy re-entered the house with Stanley, who incidentally was a few months pregnant, Stelts forced her to the floor and pointed his gun at the back of her head. Stelts then said, "Sweets dreams, baby" and shot her in the back of the head, twice. Thereafter, Stelts forced Stroop to the floor, pulled back his head, and shot Stroop in the back of the head. The men then searched the house for cocaine and money. The men found a bag of cocaine which they split into equal shares of somewhere between two and four ounces. They also located several thousand dollars which they split nearly equally.

As the men were leaving Wilson's house with their shares of the cocaine and money, they noticed that Stanley was still alive, and that she was gasping for air. Stelts then took out a knife, pulled her head back, and slit her throat. Afterward, he proceeded to slit the throats -- "like it was butter" -- of both Stroop and Wilson.

Mountjoy told the F.B.I. that he originally did not inform them of the meeting with Bill Stepp, Sr., because Bill Stepp had given him fifteen hundred dollars to lie about his role in the murders. Mountjoy also recanted his earlier statement that he had initially fingered Ernie Stepp as taking part in the murders because he wanted to seek revenge against the Stepp family.

Mountjoy was initially given total immunity from prosecution for murders in exchange for his cooperation. Based upon Mountjoy's statements to the F.B.I. and the deposition he gave the police, Stelts was indicted on three charges of Aggravated Murder in 1990, and within the same year he pled no contest to those charges. Two years later, on May 22, 1992, Buhrman was likewise indicted on three counts of Aggravated Murder. On February 10, 1993, as part of a plea agreement, Buhrman pled guilty to three counts of the lesser offense of Involuntary Manslaughter.

On March 22, 1994, Buhrman filed an appeal of his convictions. On April 21, 1994, this court declined to review his appeal on the grounds that it was untimely. On May 25, 1994, Buhrman filed a motion for a delayed appeal, which this court denied on August 25, 1994.[1] Buhrman followed his motion for a delayed appeal with a motion for post-conviction relief. The State responded to Buhrman's motion with its own motion for summary judgment on all twelve of Buhrman's grounds for relief. On November 7, 1996, the trial court granted summary judgment in favor of the State on the entire post- conviction relief motion. Buhrman now brings this timely appeal of that decision.


Buhrman raises fourteen assignments of error on appeal.



In his first assignment of error, Buhrman argues that the trial court erred in allowing his attorney, Michael F. O'Loughlin, to represent him on the murder charges at the same time he was representing James E. Stelts, in a related case, whom the State considered calling as a witness against Buhrman. O'Loughlin was representing Stelts on Federal charges stemming from the murders of Wilson, Stanley, and Stroop. A year earlier, Stelts had pled no contest to State charges of three counts of Aggravated Murder for those slayings.

When the State discovered that O'Loughlin was representing both Buhrman and Stelts, the State moved the trial court to have O'Loughlin removed from Buhrman's case. The State urged the court to remove O'Loughlin on the basis of a potential conflict of interest involving O'Loughlin's simultaneous representation of Buhrman and Stelts, a possible State witness against Buhrman. Soon thereafter, O'Loughlin, on behalf of Stelts, moved the Federal Court to have himself removed as Stelts attorney on the ground of a possible conflict of interest. On September 3, 1992, O'Loughlin, filed a memorandum in opposition to the State's motion to remove him as Buhrman's attorney. Numerous informal hearings were held on the motion in State court before Judge Reid. On October 27, 1992, Judge Rice heard the matter in Federal court. Anticipating that Judge Rice's decision could have an impact on the motion pending before his court, Judge Reid stayed a formal hearing on the matter until Judge Rice issued his decision on the motion.

On December 29, 1992, Judge Rice issued a decision granting O'Loughlin's motion to withdraw as Stelts' counsel. O'Loughlin's removal was not immediately effectuated, however. Judge Rice maintained O'Loughlin as Stelts counsel of record until another counsel could be appointed. On January 12, 1993, O'Loughlin filed a Notification of Ruling to inform Judge Reid of the grant of his motion to withdraw in Stelts' Federal case. On January 20, 1993, Judge Reid issued a decision setting the date for a hearing on the State's motion to remove O'Loughlin as counsel in Buhrman's case on March 3, 1993. In the meantime, on February 10, 1993, Buhrman entered into a plea agreement with the State and pled guilty to three counts of Involuntary Manslaughter. At the time of his plea agreement, counsel had not yet been appointed to replace O'Loughlin in Stelts' Federal case.

Buhrman contends that because O'Loughlin was still the attorney of record in Stelts' Federal case at the time of his plea agreement and because Stelts was a potential witness against Buhrman, there existed an actual conflict of interest. Buhrman further argues that this actual conflict of interest materially prejudiced his case. More specifically, Buhrman asserts that O'Loughlin inevitably had...

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