State v. Ulysses C. Murphy
| Decision Date | 26 December 2000 |
| Docket Number | 00-LW-6017,00AP-233 |
| Parties | State of Ohio, Plaintiff-Appellee, v. Ulysses C. Murphy, Defendant-Appellant |
| Court | Ohio Court of Appeals |
APPEAL from the Franklin County Court of Common Pleas.
Ron O'Brien, Prosecuting Attorney, and Susan E. Day, for appellee.
David Bodiker, Public Defender, Jennifer Page Hite and Ruth L Tkacz, for appellant.
This matter comes before the court on appeal from the dismissal of the defendant's motion for postconviction relief. Defendant raises the following assignments of error:
On May 10, 1997, Andre Brooks and his sister, Condrea Webber, went with friends to the "CNS Lounge." At or about closing time, Andre and Condrea left the CNS Lounge, and went to an "after hours" club known as the "F&H Bar and Grill." Andre liked to wear a lot of gold jewelry and that night he was wearing at least five gold necklaces.
At about 3:30 a.m., Andre followed Condrea outside, and the two walked toward Condrea's car to make the drive home. However, defendant, Ulysses Murphy, followed them out of the bar, approached them from behind brandishing a handgun, and demanded that they give him their money and jewelry. In an act which probably saved Condrea's life, Andre convinced defendant to allow his sister to get into the car. She did so and watched defendant continue to threaten Andre at gunpoint. According to Condrea, defendant was becoming more and more agitated with the speed with which Andre was removing his jewelry, until finally, defendant took a step back and shot Andre in the chest. Defendant then fired two more shots toward Andre as Condrea fled the scene. However, she soon returned and found that police had secured the area as paramedics transported Andre to the emergency room where he later died. Andre had been shot twice, once in his left chest, and once in the lower back. Both wounds were determined by the coroner to be fatal.
At the hospital Condrea identified defendant from a random photo array shown to her by the police. Meanwhile, defendant hid his handgun under the hood of his car and fled the area. The next morning defendant sold his gun to a drug dealer in order to "get rid of it." He was arrested later that same day.
Although they were not able to recover defendant's pistol, crime scene investigators recovered three spent shell casings. Subsequent testing revealed that each casing had been fired from the same weapon. Additionally, two projectiles were removed from Andre's body, each was tested, and both were found to have been fired from the same weapon.
On May 21, 1997, defendant was indicted and charged with one count of aggravated murder, one count of aggravated robbery, and one count of having a weapon while under disability. After lengthy pretrial proceedings, defendant was tried to a jury on May 1, 1998. On May 13, 1998, the jury found defendant guilty of all three counts contained in the indictment. Thereafter, the trial court accepted the jury's penalty recommendation and sentenced defendant to death for committing aggravated murder, ten years' incarceration for committing aggravated robbery, and an additional three years for the use of a firearm.
On August 5, 1998, defendant filed a notice of direct appeal to the Ohio Supreme Court. Defendant currently awaits a ruling on that appeal. In the meantime, on May 5, 1999, defendant also filed a petition for postconviction relief with the Franklin County Court of Common Pleas. The trial court denied that petition without a hearing on February 1, 2000, and the matter is now before this court on appeal.
In his first assignment of error, defendant insists the trial court should have held an evidentiary hearing before ruling on his petition for postconviction relief.
A petition for postconviction relief is a statutory vehicle designed to correct the violation of a defendant's constitutional rights. R.C. 2953.21(A)(1) provides that:
Any person who has been convicted of a criminal offense or adjudicated a delinquent child and who claims that there was such a denial or infringement of the person's rights as to render the judgment void or voidable under the Ohio Constitution or the Constitution of the United States may file a petition in the court that imposed the sentence, stating the grounds for relief relied upon, and asking the court to vacate or set aside the judgment or sentence or to grant other appropriate relief.
Although designed to address claimed constitutional violations, the postconviction relief process is a civil collateral attack on a criminal judgment, not an appeal of that judgment. State v. Steffen (1994), 70 Ohio St.3d 399. It is a means to reach constitutional issues which would otherwise be impossible to reach because the evidence supporting those issues is not contained in the record of the petitioner's criminal conviction. Clearly then, a petition for postconviction relief does not provide a petitioner a second opportunity to litigate his or her conviction, nor is the petitioner automatically entitled to an evidentiary hearing on the petition. State v. Jackson (1980), 64 Ohio St.2d 107.
To warrant a hearing, a petitioner must first provide evidence which demonstrates a cognizable claim of constitutional error. R.C. 2953.21(C). That evidence must show that the denial or infringement of the petitioner's rights renders the petitioner's conviction and sentence void, or voidable, under the Ohio and/or United States Constitutions. State v. Perry (1967), 10 Ohio St.2d 175. If the petitioner fails to submit evidentiary materials which facially demonstrate such an error, the court may deny the petition without a hearing. Jackson, supra.
Further, the doctrine of res judicata requires that the evidence presented in support of the petition come from outside, or "dehors," the record. In State v. Cole (1982), 2 Ohio St.3d 112, the Ohio Supreme Court explained:
"Under the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment or conviction, or on an appeal from that judgment." [Id. at 113, quoting State v. Perry, paragraph nine of the syllabus.]
In accordance with doctrine of res judicata set forth in Cole, constitutional issues cannot be considered in postconviction proceedings where those issues should have been raised on direct appeal and where the issues may be fairly determined without resort to evidence dehors the record. Cole, supra, at 112. See, also, State v. Milanovich (1975), 42 Ohio St.2d 46, holding that issues properly before a court on a petition for postconviction relief are issues which could not have been raised on direct appeal due to the fact that the evidence supporting those issues can only be found outside of the record.
Res judicata also implicitly prohibits a petitioner from "re-packaging" evidence or issues which either were, or could have been, raised in the context of the petitioner's trial or direct appeal. State v. Lawson (1995), 103 Ohio App.3d 307, 315. This means that the evidence relied upon must not be evidence which was in existence or available for use at the time of trial or direct appeal, and finally, cannot be merely cumulative of the evidence already presented. Id. at 315.
Most of the allegations raised in the defendant's petition are claims of ineffective assistance of counsel. The standard governing claims of ineffective assistance of counsel under both the federal and Ohio constitutions is clear. When a convicted defendant alleges that he or she has received ineffective representation, the defendant must show: (1) that counsel's performance was so deficient that he or she was not functioning as the counsel guaranteed by the Sixth Amendment to the United States Constitution; and (2) that counsel's errors prejudiced defendant depriving him or her of a trial whose result is reliable. Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052; State v. Bradley (1989), 42 Ohio St.3d 136, certiorari denied in Bradley v. Ohio (1990), 497 U.S. 1011, 110 S.Ct. 3258. In the context of a petition for postconviction relief, "the defendant, in order to secure a hearing on his petition, must proffer evidence which, if believed, would establish not only that his trial counsel had substantially violated at least one of a defense attorney's essential duties to his client but also that said violation was prejudicial to the defendant." Cole, supra, at 114. See, also, State v. Pankey (1981), 68 Ohio St.2d 58.
In Bradley, the Ohio Supreme Court explained that there are countless ways to provide effective assistance in any given case. Id. at 142. As such, the Supreme Court recognized that "'[j]udicial scrutiny of counsel's performance must be highly deferential,'" such that a court must indulge a strong presumption that counsel's conduct falls within the wide range of reasonable professional representation. Id. Moreover, even assuming counsel's performance was ineffective, an error by counsel, even if professionally unreasonable, does not...
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