State v. Wiley Davis
| Decision Date | 08 October 1998 |
| Docket Number | 98-LW-4773,72920 |
| Parties | STATE OF OHIO, PLAINTIFF-APPELLEE v. WILEY DAVIS, JR., DEFENDANT-APPELLANT CASE |
| Court | Ohio Court of Appeals |
Civil appeal from Common Pleas Court, No. CR-275129.
For Plaintiff-Appellee: Stephanie Tubbs Jones, Esq., Cuyahoga County Prosecutor, Diane Smilanick, Esq., Assistant County Prosecutor, Justice Center, Courts Tower, 1200 Ontario Street, Cleveland, OH 44113.
For Defendant-Appellant: John P. Parker, Esq., The Brownhoist Building, 4403 St. Clair Avenue, Cleveland, OH 44103.
Petitioner-appellant Wiley Davis, Jr. ("appellant") appeals the decision of the trial court wherein his petition for post-conviction relief brought pursuant to R.C. 2953.51 was denied without benefit of an evidentiary hearing. Finding no reversible error in the proceedings below, we affirm.
A review of the record on appeal reveals that Amy Perkins was kidnapped, robbed and murdered on November 26, 1991. Appellant was charged with these crimes and after a jury trial, was convicted of two counts of aggravated murder kidnapping, aggravated robbery, and the death penalty specifications attached to each aggravated murder count. The jury returned the recommendation of a death sentence and, on June 1, 1992, the court sentenced appellant to death. Appellant, represented by different counsel, brought a direct appeal of his conviction and sentence, in which this court affirmed his convictions and sentence but vacated the annual imposition of solitary confinement. State v. Davis (June 8, 1995), Cuyahoga App. No. 64270, unreported. The Supreme Court of Ohio affirmed appellant's sentence and conviction, but merged his two murder convictions so that only one death sentence remained and vacated his conviction on the attempted rape specification. State v. Davis (1996), 76 Ohio St.3d 107. Subsequently, appellant filed a petition and amended petition requesting post-conviction relief pursuant to R.C. 2953.21, asserting fourteen claims. In support of his petition, appellant appended his personal affidavit and the affidavits of Dr. Sandra McPherson, six family members or friends, his trial counsel, and Ken Murray Esq., a legal expert. In response to the petition, the state moved for dismissal. On June 12, 1997, the trial court granted the state's motion to dismiss appellant's petition and ordered the parties to submit proposed findings of fact and conclusions of law. On June 30, 1997, the trial court issued Findings of Fact and Conclusions of Law in which it denied appellant's petition without hearing, finding "no substantial grounds for post-conviction relief exist." Appellant timely appeals this decision and advances eighteen assignments of error for our review.
THE TRIAL COURT ERRED WHEN IT FAILED TO CONDUCT AN EVIDENTIARY HEARING ON THE APPELLANT'S PETITION FOR POST-CONVICTION RELIEF IN VIOLATION OF STATE V. SWORTCHECK (1995), 101 OHIO APP.3D 770 AND IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION.
THE APPELLANT WAS DENIED DUE PROCESS UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, DENIED EFFECTIVE ASSISTANCE OF COUNSEL UNDER THE SIXTH AMENDMENT AND WAS SUBJECTED TO CRUEL AND UNUSUAL PUNISHMENT PROHIBITED BY THE EIGHTH AMENDMENT WHEN TRIAL COUNSEL FAILED TO PRESENT AVAILABLE MITIGATION EVIDENCE.
THE TRIAL COURT ERRED IN FINDING THAT RES JUDICATA BARRED THE APPELLANT'S CONTENTION THAT HE WAS PREJUDICED BY THE JURY IMPROPERLY WEIGHING THE AGGRAVATED CIRCUMSTANCE OF ATTEMPTED RAPE WHEN THERE WAS INSUFFICIENT EVIDENCE TO SUPPORT SUCH SPECIFICATION IN VIOLATION OF THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION.
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT BY DENYING HIM THE OPPORTUNITY TO CONDUCT DISCOVERY IN VIOLATION OF THE OHIO RULES OF CIVIL PROCEDURE AND THE FOURTEENTH AMENDMENT OF THE U.S. CONSTITUTION.
THE TRIAL COURT ERRED TO THE PREJUDICE OF THE APPELLANT WHEN IT DENIED HIS MOTION FOR APPOINTMENT OF EXPERTS IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION.
LOCAL RULE 22(E) VIOLATES THE OHIO AND U.S. CONSTITUTIONS AND THE TRIAL COURT WRONGLY POUND IT TO BE CONSTITUTIONAL AND ABUSED ITS DISCRETION IN DENYING COUNSEL LEAVE TO INTERVIEW THE JURORS AND ALTERNATE JURORS IN VIOLATION OF THE FEDERAL AND OHIO CONSTITUTIONS.
THE TRIAL COURT ABUSED ITS DISCRETION AND IN THE ALTERNATIVE DENIED THE APPELLANT A NEUTRAL AND DETACHED MAGISTRATE AS GUARANTEED BY THE FEDERAL AND OHIO CONSTITUTIONS BY ORDERING THE PARTIES TO SUBMIT FINDINGS OF FACT AND CONCLUSIONS OF LAW.
THE APPELLANT WAS DENIED EFFECTIVE ASSISTANCE OF COUNSEL WHEN HE WAS DENIED THE OPPORTUNITY TO PRESENT EVIDENCE OF THE MITIGATING FACTOR OF APPELLANT'S GOOD BEHAVIOR AND SUCCESSFUL ADJUSTMENT TO PRISON LIFE DURING HIS INCARCERATION IN VIOLATION OF THE FEDERAL AND OHIO CONSTITUTIONS.
THE APPELLANT'S CONVICTION AND SENTENCE IS UNCONSTITUTIONAL BECAUSE THE OHIO STATUTORY SCHEME IS DEFICIENT ON ITS FACE AND AS APPLIED TO THE APPELLANT IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION.
THE APPELLANT WAS DENIED HIS RIGHT TO COUNSEL WHEN APPOINTED COUNSEL FAILED TO INFORM THE COURT THAT THE APPELLANT DESIRED A CHANGE IN COUNSEL IN VIOLATION OF THE SIXTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION.
THE APPELLANT WAS DENIED DUE PROCESS AND HIS RIGHT TO COUNSEL PURSUANT TO THE FEDERAL AND OHIO CONSTITUTIONS WHEN THE TRIAL COURT FAILED TO CONDUCT A HEARING ON THE APPELLANT'S WRITTEN REQUEST FOR NEW COUNSEL.
THE APPELLANT WAS DENIED HIS RIGHT TO DUE PROCESS, COMPULSORY PROCESS AND RIGHT TO COUNSEL AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS OF THE FEDERAL CONSTITUTION WHEN TRIAL COUNSEL FAILED TO SUBPOENA THE LOG BOOK MAINTAINED BY THE SECURITY GUARD AT THE LOBBY OF THE BLUE CROSS AND BLUE SHIELD BUILDING.
THE APPELLANT WAS DENIED HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS WHEN THE STATE WITHHELD EXCULPATORY EVIDENCE.
THE APPELLANT WAS DENIED THE EFFECTIVE ASSISTANCE OF "COUNSEL AND DUE PROCESS UNDER THE SIX(TH) AND FOURTEENTH AMENDMENTS WHEN COUNSEL PLACED PREJUDICIAL INFORMATION BEFORE THE SENTENCING JUDGE BEFORE THE COURT IMPOSED THE DEATH SENTENCE.
THE APPELLANT WAS DENIED HIS RIGHTS DUE TO THE FACT THAT THE OHIO DEATH PENALTY IS UNCONSTITUTIONAL ON ITS FACE AND AS APPLIED TO THE APPELLANT.
THE APPELLANT WAS DENIED MEANINGFUL PROPORTIONAL APPELLATE REVIEW OF HIS DEATH SENTENCE IN THE OHIO COURTS IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS OF THE FEDERAL CONSTITUTION.
THE APPELLANT'S DEATH SENTENCE BY ELECTROCUTION VIOLATES THE EIGHTH AND FOURTEENTH AMENDMENTS OF THE U.S. CONSTITUTION.
THE CUMULATIVE EFFECT OF THE ERRORS CONTAINED IN THIS APPEAL HAVE DENIED THE APPELLANT HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS OF THE FEDERAL CONSTITUTION.
Appellant's first, second, eighth and fourteenth assigned errors, having a common basis in law, shall be considered together. In these assigned errors, appellant contends that his conviction is void or voidable because he was denied effective assistance of counsel during the penalty phase of his trial as demonstrated by the evidence appended to his petition and submitted dehors the record. Appellant supported his petition with his own affidavit and those of Dr. Sandra McPherson, six family members or friends, his trial counsel, and that of Ken Murray, a legal expert. Appellant asserts in these assigned errors that this evidence submitted dehors the record is sufficient to demonstrate ineffective assistance of trial counsel and the trial court erred in failing to conduct an evidentiary hearing on the matter.
In his first assigned error, appellant, in reliance on State v Swortcheck (1995), 101 Ohio App.3d 770, contends that the affidavits submitted to support his claims offered prima facie evidence that his trial counsel was ineffective at the mitigation phase of his trial and that the trial court erred when it failed to conduct an evidentiary hearing upon his petition. In his second assigned error, appellant contends he was denied effective assistance of counsel and subjected to cruel and unusual punishment because his trial counsel failed to present evidence of a pre-existing significant biologic and genetic brain structure as supported by the affidavit of Dr. Sandra McPherson; failed to call certain family members and friends to testify on his behalf as supported by their affidavits; failed to prepare appellant for his unsworn statement as supported by his own affidavit; and failed to visit appellant frequently enough in jail in order to develop a meaningful attorney-client relationship as supported by the affidavit of Ken Murray, his legal expert. In his eighth assignment of error, appellant contends that he was denied effective assistance of counsel because counsel failed to introduce evidence of his good behavior during his incarceration, as supported by the report of Dr. Sandra McPherson submitted dehors the record. In his fourteenth assigned error, in reliance on the expert legal report dehors the record, appellant contends that he was prejudiced and was denied effective assistance of counsel as a result of counsel's statements to the judge that the appellant's independent, ballistic expert would not testify as he could only corroborate the state's evidence and that counsel told the judge that the state had a handwritten note connecting the appellant with the alleged fabricated alibi. We find appellant's assertion that the affidavits present prima facie evidence of...
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