Combs v. Coyle

• Court: Court of Appeals for the Sixth Circuit
• Decided: February 23, 2000
• Docket: 97-4369
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 ELECTRONIC CITATION: 2000 FED App. 0064P (6th Cir.) File Name: 00a0064p.06

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT _________________

;  RONALD DEAN COMBS,  Petitioner-Appellant,   No. 97-4369 v.  > RALPH COYLE,  Respondent-Appellee.  1

Appeal from the United States District Court for the Southern District of Ohio at Cincinnati. No. 95-00733—Sandra S. Beckwith, District Judge. Argued: November 2, 1999 Decided and Filed: February 23, 2000 Before: NORRIS, DAUGHTREY, and MOORE, Circuit Judges. _________________ COUNSEL ARGUED: Richard A. Chesley, JONES, DAY, REAVIS & POGUE, Chicago, Illinois, for Appellant. Stuart A. Cole, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for Appellee. ON BRIEF: Richard A. Chesley, JONES, DAY, REAVIS & POGUE, Chicago, Illinois, Jenny L. Klitch, JONES, DAY, REAVIS & POGUE,

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Columbus, Ohio, Linda E. Prucha, PUBLIC DEFENDER’S OFFICE, OHIO PUBLIC DEFENDER COMMISSION, Columbus, Ohio, for Appellant. Stuart A. Cole, Jonathan R. Fulkerson, OFFICE OF THE ATTORNEY GENERAL OF OHIO, Columbus, Ohio, for Appellee. MOORE, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. NORRIS, J. (p. 42), delivered a separate opinion concurring in part and dissenting in part and joined in the judgment. _________________ OPINION _________________ KAREN NELSON MOORE, Circuit Judge. Petitioner- appellant Ronald Dean Combs was convicted by an Ohio jury of two counts of aggravated murder as well as a specification of an aggravating circumstance as to each count, and he was sentenced to death. Combs now appeals the district court’s denial of his petition for a writ of habeas corpus. His brief sets forth twenty-nine claims, including various claims of ineffective assistance of counsel, prosecutorial misconduct, trial court error, and challenges to the constitutionality of his death sentence. For reasons that will be explained below, we conclude that Combs’s trial counsel rendered ineffective assistance so egregious as to make us doubt whether Combs’s trial produced a just result. Accordingly, we REVERSE the district court’s judgment and REMAND to the district court for issuance of a writ of habeas corpus conditioned upon the State of Ohio granting Combs a new trial within a reasonable period of time. I. BACKGROUND On July 15, 1987, Ronald Dean Combs shot and killed Peggy Schoonover and her mother, Joan Schoonover. Peggy Schoonover and Combs had been involved in a relationship and had a child together, a son named Joseph. The shootings took place in the Holiday Park Tower parking lot in 42 Combs v. Coyle No. 97-4369 No. 97-4369 Combs v. Coyle 3

______________________________________________ downtown Cincinnati, and an off-duty police officer, Deputy Sheriff James Neil, witnessed the shootings. Neil ordered CONCURRING IN PART, DISSENTING IN PART Combs to freeze, but when Combs made an aggressive move ______________________________________________ and refused to drop his shotgun, Neil fired six gunshots at Combs. Combs was taken to the hospital and underwent ALAN E. NORRIS, Circuit Judge, concurring in part and extensive treatment for his gunshot wounds. His right arm dissenting in part. was amputated, and his left arm was left partly paralyzed. I concur with the majority’s decision in Part II.B.3 and Combs was charged with two counts of aggravated murder, agree that a writ of habeas corpus should be issued on this which is defined as “purposely, and with prior calculation and ground. Because petitioner did not argue that introduction of design, caus[ing] the death of another.” OHIO REV. CODE his “talk to my lawyer” statement violated his right to remain ANN. § 2903.01(A) (Banks-Baldwin 1997). Each count silent, I respectfully dissent from Part II.B.2 of the majority’s contained a specification of an aggravating circumstance, opinion. namely that the offense “was part of a course of conduct involving the purposeful killing of or attempt to kill two or more persons.” Joint Appendix (hereinafter “J.A.”) at 9 (Indictment); OHIO REV. CODE ANN. § 2929.04(A)(5) (Banks- Baldwin 1997). Under Ohio law, a defendant becomes eligible for the death penalty if he is convicted of or pleads guilty to aggravated murder as well as at least one of the aggravating circumstances set forth in § 2929.04. See OHIO REV. CODE ANN. § 2929.03(C)(2) (Banks-Baldwin 1997). At trial, Combs did not contest that he fired the two shots that killed Peggy and Joan Schoonover. Instead, his defense was that he was too intoxicated from alcohol and drugs to form the requisite intent to kill the women or to have committed the killings with prior calculation and design. To support this theory, Combs presented the testimony of several witnesses who had seen him ingesting substantial quantities of alcohol and drugs in the days prior to and on the day of the shootings. Defense witness Dr. Roger Fisher, a clinical psychologist, also testified that, in his expert opinion, Combs was under the influence of drugs and alcohol at the time of the shootings. However, on cross examination, Fisher explained his belief that Combs, while intoxicated, was nevertheless acting with intent and purpose. On February 17, 1988, a jury found Combs guilty of both counts of aggravated murder as well as the specification of an 4 Combs v. Coyle No. 97-4369 No. 97-4369 Combs v. Coyle 41

aggravating circumstance as to each count. Following a Id. (citation omitted). Although the Ohio Supreme Court sentencing hearing conducted on February 22, 1988, the jury found that these comments did not warrant reversal, the State returned a verdict imposing a sentence of death. Pursuant to should avoid such speculation on retrial. Ohio Revised Code § 2929.03(D)(3), the trial court independently reviewed all the evidence and, upon concluding III. CONCLUSION that the aggravating circumstance outweighed the mitigating factors beyond a reasonable doubt, it adopted the jury’s Based on the preceding analysis, we conclude that Combs’s recommended sentence of death. trial counsel rendered constitutionally ineffective assistance at the culpability phase of Combs’s trial. We therefore Combs then unsuccessfully pursued direct appeals and state REVERSE the district court’s judgment and REMAND the post-conviction relief. Combs’s conviction was affirmed by case to the district court with instructions to issue a writ of the state court of appeals on September 19, 1990, see Ohio v. habeas corpus unless the State of Ohio retries Combs within Combs, No. C-880156, 1990 WL 135000, at *9 (Ohio Ct. a reasonable period of time. App. Sept. 19, 1990) (unpublished opinion), and by the Ohio Supreme Court on December 18, 1991, see Ohio v. Combs, 581 N.E.2d 1071, 1084 (Ohio 1991), reh’g denied, 583 N.E.2d 974 (Ohio), cert. denied, 504 U.S. 977 (1992). Combs filed a petition for post-conviction relief pursuant to Ohio Revised Code § 2953.21 raising fifty-nine claims for relief, which was denied by the court of common pleas on May 20, 1993. J.A. at 420 (Ct. C.P. Denial of Pet. to Vacate). The court of appeals affirmed the denial of relief, see Ohio v. Combs, 652 N.E.2d 205, 218 (Ohio Ct. App. 1994), and the Ohio Supreme Court declined jurisdiction over Combs’s discretionary appeal, see Ohio v. Combs, 644 N.E.2d 1028 (Ohio), recons. denied, 646 N.E.2d 469 (Ohio 1995). In June of 1993, Combs filed an application for delayed reconsideration in the court of appeals; this application was denied on February 22, 1994. J.A. at 363-64 (Entry Denying App. for Delayed Recons.). The Ohio Supreme Court affirmed the denial without opinion. See Ohio v. Combs, 634 N.E.2d 1027 (Ohio), recons. denied, 638 N.E.2d 86 (Ohio 1994), cert. denied, 513 U.S. 1167 (1995). After exhausting all state court remedies, Combs filed a petition for a writ of habeas corpus in the United States District Court for the Southern District of Ohio pursuant to 28 U.S.C. § 2254. Combs’s petition asserted fifty-three claims for relief. After finding all of these claims to be either procedurally barred or without merit, the district court denied 40 Combs v. Coyle No. 97-4369 No. 97-4369 Combs v. Coyle 5

childhood? Was she thinking about her daughter take me relief on October 23, 1997. J.A. at 231 (D. Ct. Op.). The but spare Peggy? That’s the aggravating circumstance, district court issued a certificate of probable cause on what she went through. Or maybe she started to pray, we December 17, 1997. We have jurisdiction over Combs’s don’t know. He won’t tell us. timely appeal of the district court’s judgment pursuant to 28 U.S.C. § 2253. .... Combs’s appeal sets forth twenty-nine claims for relief; . . . What did she [Peggy] think when this now hot steal these claims fall under the headings of ineffective assistance [sic] pressed against the back of her head, she knew she of trial counsel at both the culpability and sentencing phases, too wasn’t going to be given any mercy. What went ineffective assistance of appellate counsel, prosecutorial through her mind, what was she thinking? Was she misconduct, trial court error, and imposition of an thinking of little Joey, who’s going to take care of him, unconstitutional sentence of death. Because our resolution of grandma is gone, I’m going to be gone, who’s going to Combs’s ineffective assistance of trial counsel claim renders raise my little boy. And then came the pull of that unnecessary a decision on the others, we will confine our second trigger, and she’s gone. That’s the aggravating opinion to an analysis of the ineffectiveness claim. circumstance, that’s what you put in your one hand and Additionally, we will briefly discuss trial errors that have even if you do find some mitigation and all that that the been identified by the Ohio state courts so as to ensure that defendant told you, weigh that. these errors are avoided on Combs’s retrial. .... II. ANALYSIS . . . What weighs more, these two totally good lives or A. Procedural Default the defendant’s life in the fast lane? It is well established that “[i]n all cases in which a state R. at 1404-06; J.A. at 2783-85. prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, The Ohio Supreme Court on direct review of Combs’s case federal habeas review of the claims is barred unless the concluded that these prosecutorial comments were erroneous prisoner can demonstrate cause for the default and actual as a matter of state law. See Combs, 581 N.E.2d at 1077. The prejudice as a result of the alleged violation of federal law, or court explained: demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.” Coleman v. Thompson, After reading his entire argument, we conclude that the 501 U.S. 722, 750 (1991). In Maupin v. Smith, 785 F.2d 135 prosecutor did err. The prosecutor did improperly (6th Cir. 1986), we articulated an analysis that must be suggest that how the victims were killed and the followed when a state argues that a habeas claim is defaulted suffering and mental anguish the victims endured was an because of a petitioner’s failure to observe a state procedural aggravating circumstance. Improperly injecting rule. “First, the court must determine that there is a state nonstatutory aggravating circumstances is error. By procedural rule that is applicable to the petitioner’s claim and continually referring to what the victims were thinking, that the petitioner failed to comply with the rule.” Id. at 138. the prosecutor engaged in gross speculation. “Second, the court must decide whether the state courts actually enforced the state procedural sanction.” Id. “Third, the court must decide whether the state procedural forfeiture 6 Combs v. Coyle No. 97-4369 No. 97-4369 Combs v. Coyle 39

is an ‘adequate and independent’ state ground on which the (1998); Ohio v. Garner, 656 N.E.2d 623, 631 (Ohio 1995), state can rely to foreclose review of a federal constitutional cert. denied, 517 U.S. 1147 (1996); Ohio v. Grant, 620 claim.” Id. As we have previously stated: “For purposes of N.E.2d 50, 68 (Ohio 1993), cert. denied, 513 U.S. 836 (1994). federal review in habeas cases, we may consider as an On direct review of Combs’s conviction, the Ohio Supreme adequate and independent state procedural rule only a state Court cited DePew and explained that the reference to procedural rule that was ‘firmly established and regularly statutory mitigating factors not raised by the evidence was followed by the time as of which it [was] to be applied’ . . . .” erroneous. See Combs, 581 N.E.2d at 1079. The court found, Rogers v. Howes, 144 F.3d 990, 992 (6th Cir. 1998) (quoting however, that the error did not require reversal because Ford v. Georgia, 498 U.S. 411, 423-24 (1991)) (alteration in defense counsel induced the error by proposing the improper original). If we determine that the state procedural ground instruction. See id. was adequate and independent so as to bar review, the petitioner must then demonstrate cause and prejudice or a 2. Improper Characterization of the Nature and fundamental miscarriage of justice. Circumstances of the Offense as a Nonstatutory Aggravating Circumstance Whether a state court rested its holding on procedural default so as to bar federal habeas review is a question of law The Ohio Supreme Court also concluded that the State that we review de novo. See Couch v. Jabe, 951 F.2d 94, 96 erred by focusing its closing remarks on the victims’ mental (6th Cir. 1991). In answering this question, we look to “the anguish prior to death, thereby converting the nature and last explained state-court judgment.” Id. (quoting Ylst v. circumstances of the offense into a nonstatutory aggravating Nunnemaker, 501 U.S. 797, 805 (1991)) (internal quotation circumstance. Under Ohio law, although prosecutors in the marks omitted). penalty phase of a capital case may properly refer to the nature and circumstances of the offense, it is improper to Combs has raised six separate claims of ineffective characterize that evidence as a nonstatutory aggravating assistance of trial counsel at the culpability phase. Although circumstance. See, e.g., Ohio v. Gumm, 653 N.E.2d 253, 262- one of these claims was presented on direct appeal and is 63 (Ohio 1995), cert. denied, 516 U.S. 1177 (1996); Ohio v. therefore properly preserved, the other claims were first Landrum, 559 N.E.2d 710, 719 (Ohio 1990), cert. denied, 498 presented in Combs’s state post-conviction petition. The U.S. 1127 (1991); Ohio v. Davis, 528 N.E.2d 925, 931 (Ohio State maintains that the state courts’ dismissal of these claims 1988), cert. denied, 488 U.S. 1034 (1989). under the doctrine of res judicata was proper, and that we should therefore refuse to review the merits of these It is undisputed that the only aggravating circumstance procedurally defaulted claims. Combs argues that the first listed in § 2929.04 for which Combs was convicted is that prong of the Maupin analysis is not satisfied because at the “the offense at bar was part of a course of conduct involving time he pursued his direct appeal, no state procedural rule the purposeful killing of or attempt to kill two or more mandated that his ineffectiveness claims be asserted on direct persons by the offender.” OHIO REV. CODE ANN. appeal. § 2929.04(A)(5) (Banks-Baldwin 1997). At the sentencing hearing, however, the State made the following closing The Ohio state courts relied on two cases to support the argument: decision that res judicata barred consideration of the claims raised for the first time in Combs’s post-conviction petition: Can you imagine the terror of that? A gun right to your Ohio v. Perry, 226 N.E.2d 104 (Ohio 1967), and Ohio v. head, was she [Joan] thinking of her husband, who was going to take care of him? Was she thinking about her 38 Combs v. Coyle No. 97-4369 No. 97-4369 Combs v. Coyle 7

criminality of his conduct or to conform his conduct to Cole, 443 N.E.2d 169 (Ohio 1982). In Perry, the Ohio the requirements of law. Supreme Court held that “[u]nder the doctrine of res judicata, Number 4, the youth of the defendant. a final judgment of conviction bars a convicted defendant Number 5, the defendant’s lack of significant history who was represented by counsel from raising and litigating in of prior criminal convictions and delinquency any proceeding except an appeal from that judgment, any adjudications. defense or any claimed lack of due process that was raised or Number 6, if the defendant was [a] participant in the could have been raised by the defendant at the trial, which offense but not the principal offender, the degree of the resulted in that judgment of conviction, or on an appeal from defendant’s participation in the offense and the degree of that judgment.” Perry, 226 N.E.2d at 106 syllabus para. 9. In the defendant’s participation in the acts which led to the Cole, the court recognized that there are exceptions to the death of the victim. absolute application of the Perry rule in proceedings for post- And number 7, any other factors that are relevant to the conviction relief when the criminal defendant claims issue of whether the defendant should be sentenced to ineffective assistance of trial counsel. See Cole, 443 N.E.2d death. at 171. The Cole court reasoned, however, that when a Keep in mind that all of these specific factors may not defendant, “upon direct appeal, was represented by new be present in this case nor need they all be present before counsel who was in no way enjoined from asserting the you can find that the aggravating circumstance is not ineffectiveness of appellant’s trial counsel and [when] such sufficient beyond a reasonable doubt to outweigh the question of effective counsel could fairly be determined factors in mitigation of the sentence of death. Likewise without examining evidence outside the record, none of the the existence of any of the mitigating factors I have qualifications engrafted upon the Perry decision is apposite.” described to you does not preclude or prevent the Id. at 171. The Ohio Supreme Court later commented that imposition of a sentence of death if you find that the “Cole recognizes that res judicata does not apply when trial aggravating circumstance still does outweigh the and appellate counsel are the same, due to the lawyer’s mitigating factors by proof beyond a reasonable doubt. inherent conflict of interest.” Ohio v. Lentz, 639 N.E.2d 784, 786 (Ohio 1994).1 R. at 1434-36; J.A. at 2804-06. Combs asserts that the Cole rule requiring defendants to This instruction was clearly improper under Ohio law. In raise ineffectiveness claims on direct appeal does not apply to Ohio v. DePew, 528 N.E.2d 542 (Ohio 1988), cert. denied, him because he did not have new appellate counsel. At trial, 489 U.S. 1042 (1989), the defendant contended that an Combs was represented by two attorneys, Timothy A. Hickey instruction on all mitigating factors, including ones and Chuck R. Stidham. On direct appeal, Stidham continued inapplicable to the case at hand, impermissibly focuses the jury’s attention on the absence of mitigating factors. See id. 1 at 557. The court held that “[i]f the defendant chooses to Lentz held that “[w]hen a criminal defendant is represented by two refrain from raising some of or all of the factors available to different attorneys from the same public defender’s office at trial and on him, those factors not raised may not be referred to or direct appeal, res judicata bars a claim of ineffective assistance of trial commented upon by the trial court or the prosecution.” Id.; counsel raised for the first time in a petition for postconviction relief when such claim could have been made on direct appeal without resort to see also Ohio v. Bey, 709 N.E.2d 484, 495 (Ohio), cert. evidence beyond the record, unless the defendant proves that an actual denied, --- U.S. ---, 120 S. Ct. 587 (1999); Ohio v. Keith, 684 conflict of interest enjoined appellate counsel from raising ineffective N.E.2d 47, 65 (Ohio 1997), cert. denied, 523 U.S. 1063 assistance of trial counsel on direct appeal.” Lentz, 639 N.E.2d at 784 syllabus. 8 Combs v. Coyle No. 97-4369 No. 97-4369 Combs v. Coyle 37

his representation of Combs and was joined by new co- C. Trial Errors Identified by the Ohio Supreme Court counsel, R. Fred Hoefle. Combs argues that the same conflict of interest that would deter an attorney from alleging his own In its review of Combs’s conviction and sentence, the Ohio ineffectiveness is present when that attorney is simply joined Supreme Court found that several trial court errors had been by a new attorney on appeal. committed, although that court determined that these errors did not warrant reversal. Because Combs will in all The State acknowledges that counsel cannot be expected to probability be retried for these killings, we will now briefly raise his own ineffectiveness on appeal, but argues that res discuss the errors identified by the state court so that these judicata was properly applied to Combs’s situation. First, the errors will not be repeated. State asserts that Combs’s new counsel actually raised a claim of ineffective assistance of counsel against co-counsel on2 1. Improper Penalty Phase Jury Instruction direct appeal, thus proving that there was no conflict. Second, citing Ohio v. Zuern, Nos. C-900481, C-910229, At the conclusion of Combs’s sentencing hearing, the trial 1991 WL 256497 (Ohio Ct. App. 1st Dist. Dec. 4, 1991) court instructed the jury on all seven statutory mitigating (unpublished opinion), the State argues that the rule in Cole factors, rather than just the two raised by defense counsel at applies as a matter of law to a situation in which new co- the hearing. The instruction read: counsel participates in the appeal. Zuern presented a situation nearly identical to the instant case. In Zuern, the defendant What are mitigating factors? The statute provides challenged the state trial court’s dismissal of post-conviction certain mitigating factors, some of which you may not claims of ineffective assistance of counsel pursuant to Cole, apply to this hearing. Mitigating factors are factors that arguing that res judicata was inapplicable because his while they do not justify an excuse or justify or excuse appellate counsel consisted of one of his two trial attorneys the crime of aggravated murder, nevertheless may be joined by one new appellate counsel. See Zuern, 1991 WL considered by you as extenuating, lessening, weakening, 256497, at *11. The court of appeals rejected the defendant’s excusing to some extent or reducing the degree of the argument: “Unless we presume . . . that new co-counsel defendant’s blame. You are to weigh as mitigating entering upon a criminal case at the appellate level would factors as you may deem applicable in this case the deliberately not exercise his professional judgment or duty to nature and circumstances of the offense, the history, assert the ineffectiveness of his co-counsel at trial if the background and character of the defendant, and the record demonstrated a basis for such a claim, a presumption following factors which are mentioned by way of we adamantly reject, we perceive no reason why the reference illustration and not for the purpose of limiting your in Cole to ‘new counsel’ would not embrace new co-counsel consideration. as well as new independent counsel.” Id. at *12; see also These seven mitigating factors are defined by statute as Ohio v. Swiger, 708 N.E.2d 1033, 1039 (Ohio Ct. App. 9th follows; number 1, whether the victim of the offense Dist. 1998) (holding res judicata applicable when appellant induced or facilitated it. was represented on direct appeal by trial counsel and a second Number 2, whether it is unlikely that the offense would new attorney); Ohio v. Landrum, No. 98 CA 2401, 1999 WL have been committed but for the fact the defendant was under duress, coercion, or strong provocation. Number 3, whether at the time of committing the 2 This point is irrelevant to the determination of whether the rule of offense the defendant because of a mental disease or Cole was regularly applied to situations such as Combs’s at the time of defect lacked substantial capacity to appreciate the his appeal. 36 Combs v. Coyle No. 97-4369 No. 97-4369 Combs v. Coyle 9

said that he was going to be with his father, who was dead. R. 22626, at *12 (Ohio Ct. App. 4th Dist. Jan. 11, 1999) at 1192; J.A. at 2612 (Charles Hogue Test.); R. at 942 (Tony (unpublished opinion) (same); Ohio v. Broom, No. 72581, Liming Test.). Combs also argued that the car chase just prior 1998 WL 230425, at *4 (Ohio Ct. App. 8th Dist. May 7, to the shootings was not an effort to hunt the two women 1998) (unpublished opinion) (same); Ohio v. Steffen, No. C- down, but rather an effort to talk with Peggy Schoonover after 930351, 1994 WL 176906, at *3 (Ohio Ct. App. 1st Dist. May other channels of communication had been cut off. 11, 1994) (unpublished opinion) (same); Ohio v. Jamison, No. C-910736, 1992 WL 333011, at *5 (Ohio Ct. App. 1st Dist. The two critical errors by defense counsel bolstered the Nov. 10, 1992) (unpublished opinion) (following Zuern to State’s case and made Combs’s explanation of the events hold that “the phrase ‘new counsel’ includes new co-counsel seem less likely. Without Fisher’s testimony and without the as well as new independent counsel,” such that res judicata use of Combs’s “talk to my lawyer” statement, the State’s may be invoked to bar assertion of ineffective assistance of evidence of purpose and prior calculation and design would counsel claims). But see Ohio v. Evans, No. L-97-1134, 1998 have been much weaker. We therefore conclude that absent WL 351884, at *4 (Ohio Ct. App. 6th Dist. June 19, 1998) defense counsel’s errors, there is a reasonable probability that (unpublished opinion) (“[W]e agree with the trial court that the jury would have concluded that the State did not meet its one additional counsel on appeal does not permit the burden of proving the two contested elements, and thus that application of res judicata to claims of ineffective assistance the jury would have had a reasonable doubt about Combs’s of counsel. It is unlikely that, as co-counsel with [trial guilt. counsel], [new counsel] would be inclined to assert a claim on appeal for ineffective assistance of trial counsel.”). Federal habeas relief is available to petitioners in state confinement as a result of a proceeding that was rendered However, Zuern was not decided until after the court of fundamentally unfair by a violation of the Constitution, laws, appeals had ruled on Combs’s direct appeal.3 We must or treaties of the United States. See Norris, 146 F.3d at 323 instead look to established state law at the time Combs (citing Estelle v. McGuire, 502 U.S. 62, 68 (1991)). The pursued his appeal. Cole was the authoritative case at that Supreme Court has explained that “[a]n ineffectiveness claim, time, and Cole does not speak to a situation in which trial . . . as our articulation of the standards that govern decision of counsel continues on appeal with the addition of a new co- such claims makes clear, is an attack on the fundamental fairness of the proceeding whose result is challenged.” Strickland, 466 U.S. at 697. Combs has satisfied both prongs of the Strickland test, and in so doing he has demonstrated that his “counsel’s errors were so serious as to deprive [him] of a fair trial, a trial whose result is reliable.” Strickland, 466 U.S. at 687. He is therefore entitled to a conditional grant of 3 Even today, it is not clear that the Zuern rule would qualify as a habeas relief.18 firmly established state procedural rule. The Ohio Supreme Court has never spoken on the issue, and not all the courts of appeals agree with the outcome in Zuern. Furthermore, the reasoning in Zuern seems to be in tension with that of the Supreme Court of Ohio in Lentz. Lentz can be read for the proposition that if a new attorney represents a defendant on appeal, res judicata applies unless there is an actual conflict. There may 18 well be an actual conflict in a situation in which trial counsel is simply No harmless error analysis is necessary for claims of ineffective joined by a new attorney on direct appeal, thus suggesting that the per se assistance of counsel. See Kyles v. Whitley, 514 U.S. 419, 435-36 (1995). rule of Zuern is the incorrect approach. 10 Combs v. Coyle No. 97-4369 No. 97-4369 Combs v. Coyle 35

counsel.4 Because there is ambiguity surrounding the issue (naming Dr. Fisher’s testimony first in connection with the and because the State cannot point to a case firmly purpose element).17 establishing as of the time of Combs’s appeal that ineffectiveness claims must be brought on direct appeal when Defense counsel’s failure to object to the use of Combs’s trial counsel also serves as co-counsel on appeal, we are “talk to my lawyer” statement was similarly damaging. Just unable to conclude that a firmly established state procedural as Dr. Fisher’s testimony partly relieved the State of its rule existed. Indeed, at the time Combs’s appeal was filed it burden of proof on an element of the offense, the State would have been entirely reasonable to conclude that strategically used Combs’s protected silence as evidence that Combs’s new counsel did not meet the Cole standard of being Combs was acting rationally, and thus with purpose and prior “in no way enjoined from asserting the ineffectiveness of calculation, after the shootings; the trial court’s instruction appellant’s trial counsel,” Cole, 443 N.E.2d at 171, and thus encouraged the jury to make that inference. that res judicata would not apply. Of course, the State presented other evidence of Combs’s Because we conclude that no firmly established procedural purpose and prior calculation and design. As the Ohio rule mandated the bringing of ineffectiveness claims on direct Supreme Court pointed out: appeal in Combs’s situation, we may review the merits of all of those claims, including claims that the state court deemed Combs spent a considerable part of the afternoon of the barred by res judicata. murders searching for a shotgun. He asked two people for a shotgun, and eventually drove over eighty miles B. Ineffective Assistance of Trial Counsel at the before returning to Cincinnati with a shotgun. The Culpability Phase evidence indicates he stole the shotgun he used. After he drove back to Cincinnati, he confronted Joan and Peggy We review a district court’s denial of habeas corpus relief and initiated a car chase over several blocks, eventually de novo, but we review any findings of fact made by the cornering them at the Holiday Park Tower office district court for clear error. Findings of fact made by a state building. He deliberately knocked out a window in their court are entitled to complete deference if supported by the car and fired a shotgun into each woman’s head at close evidence. See Norris v. Schotten, 146 F.3d 314, 323-24 (6th range. Those facts alone establish both purposefulness and prior calculation and design. Combs, 581 N.E.2d at 1076. However, Combs offered an alternative reason for his search for a gun; rather than 4 spending the afternoon searching for the means to commit In a previous decision, we cited to the court of appeals’s opinion in two murders, Combs suggested that he was searching for a Combs, 652 N.E.2d at 209, as “holding that post-conviction relief is not available by virtue of the doctrine of res judicata to address constitutional means to kill himself. There was evidence that Combs was claims that could have been raised on direct appeal from the conviction contemplating suicide at the time. One witness testified that and sentence.” Norris v. Schotten, 146 F.3d 314, 332 (6th Cir.), cert. Combs sounded suicidal just days before the incident, and denied, --- U.S. ---, 119 S. Ct. 348 (1998). Norris did not involve the another witness testified that just before the shootings, Combs issue of whether res judicata applies to bar a claim of ineffective assistance of trial counsel when one new co-counsel joins trial counsel in the appeal. Although in Norris we relied on Combs’s explanation of the 17 Perry rule, we did not express an opinion as to whether that rule was As Combs points out, the district court acknowledged that Fisher’s properly applied to the facts of the Combs case. testimony was prejudicial. J.A. at 132 (Dist. Ct. Op.). 34 Combs v. Coyle No. 97-4369 No. 97-4369 Combs v. Coyle 11

Strickland instructed that “[p]revailing norms of practice as Cir.), cert. denied, --- U.S. ---, 119 S. Ct. 348 (1998).5 The reflected in American Bar Association standards and the like, presumption of correctness accorded to state court findings e.g., ABA Standards for Criminal Justice 4-1.1 to 4-8.6 (2d “only applies to basic, primary facts, and not to mixed ed. 1980) (“The Defense Function”), are guides to questions of law and fact,” and it “applies to implicit findings determining what is reasonable, but they are only guides.” of fact, logically deduced because of the trial court’s ability to Strickland, 466 U.S. at 688. ABA Standard 4-1.2(c) states adjudge the witnesses’ demeanor and credibility.” Groseclose that “[s]ince the death penalty differs from other criminal v. Bell, 130 F.3d 1161, 1164 (6th Cir. 1997) (quoting penalties in its finality, defense counsel in a capital case McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996), should respond to this difference by making extraordinary cert. denied, 520 U.S. 1257 (1997)), cert. denied, 523 U.S. efforts on behalf of the accused.” ABA STANDARDS FOR 1132 (1998). CRIMINAL JUSTICE PROSECUTION FUNCTION AND DEFENSE FUNCTION 120 (3d ed. 1993). 1. The Strickland Standard 5. Prejudice “The benchmark for judging any claim of ineffectiveness must be whether counsel’s conduct so undermined the proper In order to establish prejudice, Combs “need not show that functioning of the adversarial process that the trial cannot be counsel’s deficient conduct more likely than not altered the relied on as having produced a just result.” Strickland v. outcome in the case.” Strickland, 466 U.S. at 693. He must Washington, 466 U.S. 668, 686 (1984). The well-known two instead show that there is a reasonable probability that, but for part test for evaluating ineffectiveness claims was first counsel’s errors, the factfinder would have had a reasonable articulated in Strickland: doubt about his guilt.16 See id. at 695. The defense theory was that Combs’s intoxication rendered him unable to act First, the defendant must show that counsel’s with purpose or prior calculation and design, and yet defense performance was deficient. This requires showing that counsel made two crucial errors that substantially undercut counsel made errors so serious that counsel was not this theory. We conclude that each of these errors is functioning as the “counsel” guaranteed the defendant by sufficiently prejudicial to satisfy the Strickland standard. the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. Presentation of Dr. Fisher’s testimony is perhaps the most This requires showing that counsel’s errors were so devastating error. The testimony of the sole defense expert serious as to deprive the defendant of a fair trial, a trial that Combs, although intoxicated, nevertheless acted with whose result is reliable. purpose and intent was obviously damaging to the defense. Furthermore, Dr. Fisher’s testimony provided the State with Id. at 687; see also, e.g., Tucker v. Prelesnik, 181 F.3d 747, its most powerful evidence of purpose. R. at 1226-27; J.A. at 754 (6th Cir. 1999); Chandler v. Jones, 813 F.2d 773, 781 2744-45 (State’s Closing Argument at Culpability Phase) (6th Cir. 1987).

5 16 The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. Guilt means guilt of the underlying offenses; Combs must therefore 104-132, 110 Stat. 1214 (1996), is inapplicable to this case because show not that a factfinder would have had a reasonable doubt about his Combs filed his petition for a writ of habeas corpus in the district court culpability for the killings, but rather that a factfinder would have had a before the enactment of the statute. See Lindh v. Murphy, 521 U.S. 320, reasonable doubt about his purpose or prior calculation and design. 336 (1997). 12 Combs v. Coyle No. 97-4369 No. 97-4369 Combs v. Coyle 33

With regard to the performance prong of the inquiry, the and would also have enabled counsel to respond to Zompero’s defendant must show that counsel’s representation fell below allegedly inaccurate testimony. an objective standard of reasonableness. Judicial scrutiny of performance is highly deferential, and “[a] fair assessment of Additionally, Combs’s counsel made no attempt to redact attorney performance requires that every effort be made to portions of a videotaped testimony that may have been eliminate the distorting effects of hindsight, to reconstruct the prejudicial to Combs. At trial, the videotaped testimony of circumstances of counsel’s challenged conduct, and to Tony Liming, who was then fifteen years old, was presented evaluate the conduct from counsel’s perspective at the time.” by the prosecution.14 Liming was with Combs when he Strickland, 466 U.S. at 689. Therefore, this court should obtained a gun on the day of the shootings; he also testified as judge whether, in light of all the circumstances viewed at the to Combs’s use of drugs and alcohol on a regular basis and on time of counsel’s conduct, counsel’s “acts or omissions were the day in question. At one point, Stidham asked Liming outside the wide range of professionally competent what his feelings toward Combs were. Liming answered: “He assistance.” Id. at 690. Furthermore, “strategic choices made is, I guess I liked him, I mean I liked him. He like did stuff, after thorough investigation of law and facts relevant to stole stuff from my mom and I didn’t like that.” R. at 944; plausible options are virtually unchallengeable; and strategic J.A. at 2631 (Tony Liming Test.). Combs argues that counsel choices made after less than complete investigation are should have sought to have this “highly prejudicial ‘other reasonable precisely to the extent that reasonable professional acts’” evidence redacted prior to trial pursuant to Ohio Rule judgments support the limitations on investigation.” Id. at of Evidence 404(B),15 and we agree. The statement is likely 690-91; see also Meeks v. Bergen, 749 F.2d 322, 328 (6th Cir. excludable under Rule 404(B); it does not go to any 1984). Finally, when analyzing an attorney’s performance, permissible purpose, and it might tend to leave the jury with “[i]t will generally be appropriate for a reviewing court to an overall bad impression of Combs’s character. Considering assess counsel’s overall performance throughout the case in the potential prejudice from the statement, counsel clearly order to determine whether the ‘identified acts or omissions’ erred by failing to seek redaction. overcome the presumption that counsel rendered reasonable professional assistance.” Kimmelman v. Morrison, 477 U.S. Counsel’s overall performance is particularly shocking 365, 386 (1986) (quoting Strickland, 466 U.S. at 690). given the fact that this case involves the death penalty.

As for the prejudice prong of the Strickland test, the Court instructed: “The defendant must show that there is a have been cumulative. reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different. 14 Liming was questioned on direct by Stidham. A reasonable probability is a probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. 15 Ohio Rule of Evidence 404(B) reads: “Evidence of other crimes, at 694. The prejudice prong “focuses on the question whether wrongs, or acts is not admissible to prove the character of a person in counsel’s deficient performance renders the result of the trial order to show that he acted in conformity therewith. It may, however, be unreliable or the proceeding fundamentally unfair.” Lockhart admissible for other purposes, such as proof of motive, opportunity, v. Fretwell, 506 U.S. 364, 372 (1993). Therefore, the intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” OHIO R. EVID. 404(B) (Banks-Baldwin 1995). prejudice inquiry must not focus solely on mere outcome The Ohio Supreme Court has instructed that Rule 404(B) “must be determination; attention must be given to “whether the result construed against admissibility, and the standard for determining admissibility of such evidence is strict.” Ohio v. Broom, 533 N.E.2d 682, 686 syllabus para. 1 (Ohio 1988), cert. denied, 490 U.S. 1075 (1989). 32 Combs v. Coyle No. 97-4369 No. 97-4369 Combs v. Coyle 13

establish one of the elements of its case in chief. Quite of the proceeding was fundamentally unfair or unreliable.” Id. simply, this testimony was completely devastating to the at 369. defense, and counsel’s decision to present it was objectively unreasonable. Both the performance and prejudice components of the ineffectiveness inquiry are mixed questions of law and fact 4. Defense Counsel’s Overall Performance at the entitled to de novo review. See Strickland, 466 U.S. at 698; Culpability Phase Groseclose, 130 F.3d at 1164 (“An ineffective assistance of counsel claim presents a mixed question of law and fact, for We next proceed to assess defense counsel’s overall which both the state-court and district-court determinations performance throughout the culpability phase of Combs’s are subject to de novo review by this court.”). trial. We acknowledge that defense counsel presented significant evidence that Combs was intoxicated on the day of 2. Defense Counsel’s Failure to Object to the the shootings. However, the errors that we have identified are Unconstitutional Use of Combs’s “Talk to My fundamental errors that were severely damaging to Combs’s Lawyer” Statement defense. In fact, we believe that each of the errors that we have identified is independently sufficient to warrant a Combs first claims that his trial counsel provided conclusion that Combs’s counsel’s performance was ineffective representation by failing to object both to the constitutionally deficient. However, these errors were prosecution’s use of a statement made by Combs to a police compounded by other failures on the part of defense counsel. officer and to the trial court’s sua sponte jury instruction concerning the6purposes for which the jury could consider For example, Combs’s counsel failed to investigate and to that statement. As the Ohio Supreme Court found, after present available physical evidence of Combs’s intoxication Combs had been shot Cincinnati police officer Douglas on the day of the shootings. Combs argues that, had defense Ventre arrived on the scene and found Combs sitting on the counsel investigated this matter, they would have found out ground and holding a shotgun. See Combs, 581 N.E.2d at from his mother that “when [she] got the car back [from the 1074. Ventre then pulled the shotgun away from Combs and police after their investigation] there were wine cooler bottles, asked Combs what had happened, to which Combs replied and beer cans in the car” and that “[a] cooler in the back still “the guy shot me.” Id. (internal quotation marks omitted). contained two beers.” J.A. at 1304 (Aff. of Geraldine Ventre later repeated the same question as Combs was being Combs). At trial, Officer Zompero, who is a police placed into an ambulance, and Combs “told [Ventre] to talk criminalist, testified that he had conducted a search of to his lawyer.” Id. (internal quotation marks omitted). After Combs’s car, but had not found any kind of container that Officer Ventre testified about this “talk to my lawyer” would be used to hold alcohol such as a beer can, wine cooler statement, the trial court instructed: can, or whiskey bottle. R. at 1081; J.A. at 2700 (Zompero Test.). Investigating the presence of alcohol containers in the Members of the jury, I am going to give you a special car would have enabled defense counsel to present some instruction at this time based upon the testimony that you corroborating physical evidence of Combs’s intoxication,13 heard the defendant Ronald Dean Combs has a constitutional right not to speak to members of law 13 Although defense counsel did present substantial testimonial 6 evidence of Combs’s intoxication, no corroborating physical evidence This claim was raised on direct appeal and denied. It was therefore was presented. Therefore, the evidence of alcohol containers would not properly preserved for our review. 14 Combs v. Coyle No. 97-4369 No. 97-4369 Combs v. Coyle 31

enforcement without counsel and not to speak to them. such as Combs’s state of despondency, his difficult past, his You cannot draw any inferences for or against the history of severe drug and alcohol abuse, and his stormy defendant because he may have requested an attorney or relationship with Peggy Schoonover. R. at 1176-78; J.A. at made no further statements to Officer Ventre when he 2579-81 (Fisher Test.). Additionally, Fisher supported the was on the stretcher as Officer Ventre testified to. contention that Combs was under the influence when he shot You may consider this evidence, however, as it relates the victims. However, Stidham testified that defense counsel to the elements of purpose and prior calculation and put Fisher on the stand in an effort “to establish that Combs design but what weight you give to this testimony could not act purposely and intentionally because of his depends upon your findings and the weight that you diminished capacity,” and Stidham admitted that he was attribute to this testimony in this regard so please “surprised” when Fisher testified to the opposite. J.A. at 2920 remember that. (Stidham Dep.). Fisher’s opinion regarding whether Combs lacked the requisite intent to commit the crimes was crucial R. at 1052-53; J.A. at 2673-74. Defense counsel did not to the defense theory; defense counsel’s failure to have object to this jury instruction, nor did they object to the questioned Fisher in this regard prior to trial is inexcusable. prosecution’s use of this statement at trial. In closing Defense counsel should have known Fisher’s opinion on this argument, the prosecution stated: ultimate issue and should have prepared accordingly. Talk to my lawyer. Talk to my lawyer. Does that sound Regardless of whether Combs’s counsel should have like someone who’s so intoxicated he doesn’t know what known or instead actually knew Fisher’s opinion regarding is going on? Isn’t that evidence that he realizes the Combs’s intent, however, counsel’s decision to put him on gravity of the situation and at this time gave that the stand was objectively unreasonable. In Ohio, evidence of particular comment or response to Officer Ventre? voluntary intoxication “may be considered in determining whether an act was done intentionally or with deliberation or R. at 1255; J.A. at 2761. Combs argues that “the trial court’s premeditation.” Ohio v. Fox, 428 N.E.2d 410, 412 (Ohio instruction permitted, and the prosecution exploited, Mr. 1981). Thus, establishing that a defendant was intoxicated Combs’ exercise of his right to consult with counsel as when he committed the crime in question is not, in and of substantive evidence on the ultimate culpability phase issue itself, helpful; the evidence must also lead the factfinder to an — Mr. Combs’ intent.” Pet’r Br. at 18. inference that intoxication deprived the defendant of the ability to form intent. Indeed, Stidham testified that the In order to decide whether counsel’s failure to object to the defense presented Fisher in order to establish that Combs use of the “talk to my lawyer” statement was deficient, we could not have been acting purposefully. Fisher’s testimony must first determine whether the use of this statement was directly contradicted the sole defense theory that Combs constitutionally defective such that any reasonable counsel lacked the requisite intent to commit murder. Although would have objected under the circumstances. Although defense counsel presented substantial testimonial evidence Combs’s statement referred not to silence but to his right to that Combs was in fact intoxicated at the time of the an attorney, the admissibility of the statement is properly shootings, this testimony was rendered worthless when the analyzed as a comment on prearrest silence. See Wainwright defense’s own expert testified that Combs’s intoxication did v. Greenfield, 474 U.S. 284, 295 n.13 (1986) (“With respect not legally excuse his crime. Furthermore, not only did to post-Miranda warnings ‘silence,’ we point out that silence Fisher’s testimony destroy any hope of a successful does not mean only muteness; it includes the statement of a intoxication defense, but it also helped the prosecution to 30 Combs v. Coyle No. 97-4369 No. 97-4369 Combs v. Coyle 15

was impaired by what was happening to him and what he was desire to remain silent as well as of a desire to remain silent ingesting.” R. at 1187; J.A. at 2590 (Fisher Test.). On re- until an attorney has been consulted.”). Combs’s statement is cross, however, Dr. Fisher gave the same testimony regarding best understood as communicating a desire to remain silent intent: outside the presence of an attorney. Q. But, Doctor, was it so impaired that he could not Combs grounds his argument about the admissibility of the — wasn’t so impaired that he could not form this intent? statement in the Supreme Court’s decision in Doyle v. Ohio, 426 U.S. 610 (1976). In Doyle, the petitioner took the stand A. That is correct, yes. at his trial for selling marijuana and explained, for the first time, that he had been framed. See id. at 612-13. For R. at 1188; J.A. at 2591 (Fisher Test.). The prosecutor then impeachment purposes, the prosecutor asked the petitioner emphasized Dr. Fisher’s testimony regarding intent three why he had not told this story immediately after his arrest. times in closing arguments.12 Combs argues that counsel’s See id. at 613. The petitioner was convicted, and he appealed failure to anticipate, suppress, prepare for, object to, or avoid on the ground that cross-examination regarding his post-arrest repetition of this damaging testimony rendered his silence was error. See id. at 615. The Supreme Court held performance constitutionally deficient. “that the use for impeachment purposes of petitioners’ silence, at the time of arrest and after receiving Miranda Although Combs’s counsel’s decision to present Dr. warnings, violated the Due Process Clause of the Fourteenth Fisher’s testimony may be considered a strategic one, it was Amendment.” Id. at 619. The theory underlying Doyle is that a decision made without undertaking a full investigation. Cf. while Miranda warnings contain no express assurance that Strickland, 466 U.S. at 691 (“[C]ounsel has a duty to make silence will carry no penalty, “such assurance is implicit to reasonable investigations or to make a reasonable decision any person who receives the warnings.” Id. at 618. On this that makes particular investigations unnecessary.”); Horton v. reasoning, the Court concluded that it would be Zant, 941 F.2d 1449, 1462 (11th Cir. 1991) (“[O]ur case law fundamentally unfair first to induce a defendant to remain rejects the notion that a ‘strategic’ decision can be reasonable silent through Miranda warnings and then to penalize the when the attorney has failed to investigate his options and defendant who relies on those warnings by allowing the make a reasonable choice between them.”), cert. denied, 503 defendant’s silence to be used to impeach an exculpatory U.S. 952 (1992). At trial, Dr. Fisher did present several explanation offered at trial. See id. aspects of Combs’s history that were psychologically relevant, Later cases have restricted Doyle and have reaffirmed that the “fundamental unfairness” identified by the Court derives 12 from the implicit assurances of the Miranda warnings. In Combs’s counsel chose to put Dr. Fisher on the stand again at the sentencing phase, and Dr. Fisher testified, this time on direct, that Combs Jenkins v. Anderson, 447 U.S. 231 (1980), the Court held that acted with intent. Dr. Fisher stated: “Well, it is my opinion that a person due process is not violated by the impeachment use of with Mr. Combs’ exact history of drug and alcohol abuse, drug and prearrest, pre-Miranda warnings silence, see id. at 238-39. In alcohol ingestion, and treatment would still be able to control ordinary Fletcher v. Weir, 455 U.S. 603 (1982), the Court held that behaviors, plan behavior in a purposeful way, carry out behavior in a impeachment use of post-arrest, pre-Miranda warnings purposeful way. I think his judgment would have been a continuated [sic] to an extent and I think that one would see perhaps a greater degree of silence does not offend due process, see id. at 607. The Weir impulsivity in his behavior but I think that the basic issue of control Court explained that Doyle was a case in which the would still be intact with his history.” R. at 1385; J.A. at 2598 (Fisher government had actually induced silence with Miranda Test.). 16 Combs v. Coyle No. 97-4369 No. 97-4369 Combs v. Coyle 29

warnings, and it noted that any broadening of Doyle to a culpability phase regarding Combs’s drug and alcohol abuse situation in which a defendant had not yet received Miranda and his intoxication on the day of the events; on cross- warnings — even if the defendant was in custody — was examination, Dr. Fisher expressed the opinion that, although unsupported by the reasoning of Doyle. See id. at 605-06. intoxicated, Combs acted purposefully and intentionally. Defense counsel objected to the prosecutor’s question, but the In the instant case, Combs had not received Miranda objection was overruled. The exchange on cross proceeded warnings prior to his “talk to my lawyer” statement. The as follows: Ohio Supreme Court concluded that this was of no significance based on the following reasoning: Q. Dr. Fisher, you have rendered an opinion that at the time, July 15th, the defendant was under the [A]t the point when Combs was placed in the ambulance, influence, is that correct? we find that Combs was in custody and had a right to remain silent, consult a lawyer, and receive a Miranda A. That’s my opinion, yes. warning. When he arrived at the scene, Officer Ventre personally took the shotgun from Combs; there were two Q. You are not however saying that the acts he did on women dead from shotgun blasts in the adjacent car; and that particular day were not done purposely? Ventre had been at the scene for some ten to fifteen minutes. Ventre’s questioning, without a Miranda MR. STIDHAM: Objection. warning, violated those rights. THE COURT: Overruled. Combs, 581 N.E.2d at 1075-76. However, even if Combs should have received Miranda warnings prior to his “talk to A. I certainly am not, no. my lawyer” statement, the Doyle rationale is still inapplicable. As we have explained, the Doyle line of cases clearly rests on Q. So he may have been under the influence or your the theory that Miranda warnings themselves carry an implicit opinion based on what you were told he was under the assurance that silence will not be penalized; actual receipt of influence but at the same time he was acting intentionally the warnings is key. Therefore, the comment on Combs’s and purposely when he acted as he did on July 15th; is pre-Miranda silence did not violate due process. that correct?

This does not, however, rule out the possibility that such MR. STIDHAM: Objection. comment is a violation of Combs’s Fifth Amendment THE COURT: Overruled. privilege against self-incrimination.7 In Jenkins, in addition to ruling that impeachment use of a defendant’s prearrest A. I certainly believe that he was, yes. silence is not violative of due process, the Court also held that such use does not offend the Fifth Amendment’s privilege R. at 1183; J.A. at 2586 (Fisher Test.). against self-incrimination. See Jenkins, 447 U.S. at 238. The On redirect, defense counsel again attempted to show that intoxication has an effect on one’s ability to make judgments. 7 Defense counsel elicited Dr. Fisher’s testimony that “it would The Fifth Amendment provides in relevant part that no person “shall be compelled in any criminal case to be a witness against himself.” U.S. be my conclusion psychologically that [Combs’s] judgment CONST. amend. V. 28 Combs v. Coyle No. 97-4369 No. 97-4369 Combs v. Coyle 17

(B) Exclusion discretionary. petitioner in that case took the stand at his murder trial and Although relevant, evidence may be excluded if its testified that he had killed in self-defense. See id. at 232. probative value is substantially outweighed by During cross-examination and again during closing considerations of undue delay, or needless presentation arguments, the prosecutor, referring to the fact that the of cumulative evidence. petitioner had waited two weeks to report the stabbing, attempted to impeach the petitioner’s credibility by implying OHIO R. EVID. 403. The Ohio Supreme Court concluded that that he would have come forward earlier if he had truly killed the comments regarding the “talk to my lawyer” statement in self-defense. See id. at 233-34. The Supreme Court easily were improper under these rules, stating: disposed of the petitioner’s Fifth Amendment objection to this use of his prearrest silence, relying on its 1926 decision in Additionally, the “talk to my lawyer” evidence does Raffel v. United States, 271 U.S. 494 (1926). Raffel held that not relate to or tend to prove prior calculation and design the government may impeach a defendant who takes the stand or purposefulness. Combs’ comment simply meant that in his own defense with his prior silence without violating the he was exercising his right to counsel and nothing more. Fifth Amendment. See id. at 499. The Court in Raffel relied Even if this remark was initially admissible, Evid.R. 401 on a waiver theory, reasoning that a defendant waives his and 403 would otherwise invite exclusion from evidence. Fifth Amendment immunity from giving testimony by No justification is apparent for the instruction that the offering himself as a witness. See id. at 496-97. The Raffel evidence related to either purposefulness or prior Court concluded by explaining: calculation and design. Thus, we conclude the trial court erred in allowing this remark into evidence and in The safeguards against self-incrimination are for the instructing the jury to consider the remark in relation to benefit of those who do not wish to become witnesses in purposefulness and prior calculation and design. their own behalf and not for those who do. There is a sound policy in requiring the accused who offers himself Combs, 581 N.E.2d at 1076. as a witness to do so without reservation, as does any other witness. We can discern nothing in the policy of A reasonable defense attorney would have known that the the law against self-incrimination which would require admission of the “talk to my lawyer” statement was the extension of immunity to any trial or to any tribunal prejudicial to the client and would have objected on the basis other than that in which the defendant preserves it by of Rule 403. Such an objection would have had at least a refusing to testify. likelihood of success, given the Ohio Supreme Court’s pronouncement on this issue. A Rule 403 objection to Officer Id. at 499. The Jenkins Court therefore reasoned that the rule Ventre’s testimony could have prevented the erroneous of Raffel permits impeachment use of prearrest silence. instruction as well as the damaging use of the statement by the prosecution. The Jenkins Court went on to explain that permitting the impeachment use of a defendant’s prior silence does not 3. Defense Counsel’s Presentation of Dr. Fisher’s unconstitutionally burden the exercise of Fifth Amendment Testimony rights. See Jenkins, 447 U.S. at 236-38. The Court noted that the “‘threshold question is whether compelling the election Combs next alleges ineffectiveness as a result of counsel’s impairs to an appreciable extent any of the policies behind the preparation of and strategy with regard to Dr. Fisher, the rights involved.’” Id. at 236 (quoting Chaffin v. Stynchcombe, defense’s only expert witness. Dr. Fisher testified at the 18 Combs v. Coyle No. 97-4369 No. 97-4369 Combs v. Coyle 27

412 U.S. 17, 32 (1973)). Relying on prior decisions, the lodged an objection on that basis. Counsel’s failure to have Jenkins Court reasoned that the possibility of impeachment by objected at any point is inexplicable, and 11 we can perceive no prior silence does not impermissibly burden the privilege possible strategic reason for such failure. Not only did the against self-incrimination. See id. at 236-38. These prior failure to object ensure that the jury could use Combs’s decisions suggested that a defendant’s real dilemma lies in protected silence against him, but it also guaranteed that both determining whether to testify or not; once a defendant has the admission of the statement and the trial court’s instruction voluntarily taken the stand, the rule that he must testify fully would be analyzed on review only for plain error. Counsel’s does not significantly add to this dilemma and is indeed a performance with respect to this issue was constitutionally defendant’s obligation, as the privilege against self- deficient under the Strickland standard. incrimination “cannot be construed to include the right to commit perjury.” Id. at 238 (quoting Harris v. New York, 401 Even if Combs’s counsel failed to realize that use of the U.S. 222, 225 (1971)). The Court then explained that “[i]n “talk to my lawyer” statement as substantive evidence of guilt determining whether a constitutional right has been burdened might be unconstitutional, counsel still should have objected impermissibly, it also is appropriate to consider the legitimacy to the statement on evidentiary grounds. Ohio Rule of of the challenged governmental practice.” Id. at 238. The Evidence 401 provides the definition of “relevant evidence”: Court reasoned that the impeachment use of prearrest silence “‘Relevant evidence’ means evidence having any tendency to “enhance[s] the reliability of the criminal process” by giving make the existence of any fact that is of consequence to the prosecutors the chance to test a defendant’s credibility by determination of the action more probable or less probable asking him to explain prior inconsistencies. Id. “Once a than it would be without the evidence.” OHIO R. EVID. 401. defendant decides to testify, ‘[t]he interests of the other party Rule 403 provides: and regard for the function of courts of justice to ascertain the truth become relevant, and prevail in the balance of (A) Exclusion mandatory. considerations determining the scope and limits of the Although relevant, evidence is not admissible if its privilege against self-incrimination.’” Id. (quoting Brown v. probative value is substantially outweighed by the danger United States, 356 U.S. 148, 156 (1958)) (alteration in of unfair prejudice, of confusion of the issues, or of original). misleading the jury.

Jenkins did not, however, address the question at issue in this case, namely, whether the use of prearrest silence as substantive evidence of guilt violates the Fifth Amendment. See id. at 236 n.2 (leaving this question unresolved). That use of a defendant’s prearrest silence as substantive evidence of astounded us that we were shocked.” J.A. at 2928 (Stidham Dep.). guilt is significantly different than the use of prearrest silence 11 to impeach a defendant’s credibility on the stand is clear. In The State argues that the trial court’s sua sponte instruction Griffin v. California, 380 U.S. 609, 615 (1965), the Supreme following Officer Ventre’s testimony “limited any speculative damage to Court held that the Fifth Amendment “forbids either comment Combs,” so that defense counsel’s failure to object was a sound strategic by the prosecution on the accused’s [refusal to testify at trial] decision designed not to draw any more attention to the matter. Appellee’s Br. at 52. However, far from limiting the damage caused by or instructions by the court that such silence is evidence of the admission of the statement, the trial court’s instruction exacerbated it. guilt.” The Court reasoned that a contrary rule would allow The instruction encouraged the jury to use Combs’s prearrest silence as the state to submit as substantive proof of the defendant’s substantive evidence of purpose and prior calculation and design — the key issues at trial. 26 Combs v. Coyle No. 97-4369 No. 97-4369 Combs v. Coyle 19

for impeachment purposes, the use of silence as substantive guilt his silence by not testifying. See id. at 613 (“No formal evidence of guilt does not enhance the reliability of the offer of proof is made as in other situations; but the criminal process. Just as “every post-arrest silence is prosecutor’s comment and the court’s acquiescence are the insolubly ambiguous,” Doyle, 426 U.S. at 617, there are many equivalent of an offer of evidence and its acceptance.”). Such reasons why a defendant may remain silent before arrest, such proffer of the defendant’s refusal to testify as evidence of as a knowledge of his Miranda rights or a fear that his story guilt would impermissibly penalize the exercise of the may not be believed. The probative value of such silence is privilege against self-incrimination and would “cut[] down on therefore minimal. Furthermore, the use of prearrest silence the privilege by making its assertion costly.” Id. at 614. may even subvert the truthfinding process; because it pressures the defendant to explain himself or to suffer a court- The circuits that have considered whether the government sanctioned inference of guilt, the likelihood of perjury is may comment on a defendant’s prearrest silence in its case in increased. In sum, permitting the use of a defendant’s chief are equally divided. Three circuits have held that such prearrest silence as substantive evidence of guilt would use violates the privilege against self-incrimination found in greatly undermine the policies behind the privilege against the Fifth Amendment, relying principally upon Griffin. See self-incrimination while adding virtually nothing to the United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017 reliability of the criminal process. (7th Cir. 1987); Coppola v. Powell, 878 F.2d 1562, 1568 (1st Cir.), cert. denied, 493 U.S. 969 (1989); United States v. In the instant case, Combs clearly invoked the privilege Burson, 952 F.2d 1196, 1201 (10th Cir. 1991), cert. denied, against self-incrimination by telling the officer to talk to his 503 U.S. 997 (1992); cf. United States v. Caro, 637 F.2d 869, lawyer, thus conveying his desire to remain silent without a 876 (2d Cir. 1981) (“Whatever the future impact of Jenkins lawyer present. Combs never waived this privilege and did may be, we have found no decision permitting the use of not testify at his trial. Therefore, the prosecutor’s comment silence, even the silence of a suspect who has been given no on Combs’s prearrest silence in its case in chief and the trial Miranda warnings and is entitled to none, as part of the court’s instruction permitting the jury to use Combs’s silence Government’s direct case.”; “[W]e are not confident that as substantive evidence of guilt violated Combs’s Fifth Jenkins permits even evidence that a suspect remained silent Amendment rights. before he was arrested or taken into custody to be used in the Government’s case in chief.”). In Savory, the Seventh Circuit Defense counsel’s failure to object to the unconstitutional explained that because the defendant did not take the stand use of Combs’s “talk to my lawyer statement” clearly fell and because the prosecution referred to the defendant’s below an objective standard of reasonableness. Although the silence as substantive evidence of guilt, the case did not contours of the privilege against self-incrimination may involve the application of Doyle but rather the application of sometimes be unclear, that a defendant’s silence cannot be Griffin. See Savory, 832 F.2d at 1017. The Seventh Circuit used as substantive evidence against him at trial is a reasoned that while Griffin involved governmental use of the fundamental aspect of the privilege. Combs’s counsel should defendant’s silence at trial, “[t]he right to remain silent, have realized that the use of Combs’s prearrest silence against unlike the right to counsel, attaches before the institution of him was at least constitutionally suspect10 and should have formal adversary proceedings.” Id. at 1017. The court therefore concluded that Griffin’s prohibition on the use of a defendant’s silence as substantive evidence of guilt “applies 10 In fact, it appears that Combs’s counsel did realize the problems equally to a defendant’s silence before trial, and indeed, even surrounding the use of the “talk to my lawyer” statement. Stidham testified in a deposition that the trial court’s instruction on the issue “so 20 Combs v. Coyle No. 97-4369 No. 97-4369 Combs v. Coyle 25

before arrest.” Id.8 In Coppola, the First Circuit cited Raffel inhumane treatment and abuses; our sense of fair play and Griffin and reasoned that the “broad rule of law” set forth which dictates “a fair state-individual balance by in those cases “is that where a defendant does not testify at requiring the government to leave the individual alone trial it is impermissible to refer to any fifth amendment rights until good cause is shown for disturbing him and by that defendant has exercised.” Coppola, 878 F.2d at 1567. It requiring the government in its contest with the therefore held that the prosecution’s use of the defendant’s individual to shoulder the entire load”; our respect for the prearrest silence in its case in chief violated the Fifth inviolability of the human personality and of the right of Amendment. See id. at 1568. The Tenth Circuit reached the each individual “to a private enclave where he may lead same result in Burson: “The general rule of law is that once a a private life”; our distrust of self-deprecatory statements; defendant invokes his right to remain silent, it is and our realization that the privilege, while sometimes “a impermissible for the prosecution to refer to any Fifth shelter to the guilty,” is often “a protection to the Amendment rights which defendant exercised. To be sure, innocent.” exceptions exist to this rule, such as the use of silence for impeachment in certain circumstances, but such exceptions Id. at 55 (citations omitted). As the Jenkins Court recognized, have no applicability to the case before us.” 952 F.2d at 1201 when the government uses a defendant’s prearrest silence for (citation omitted). purposes of impeachment, these policies are largely not implicated; every defendant is already under some pressure to Three circuits, on the other hand, have reached the opposite testify fully so that the jury does not draw an unfavorable conclusion. See United States v. Rivera, 944 F.2d 1563, 1568 inference from his silence (or partial silence), and a rule (11th Cir. 1991); United States v. Zanabria, 74 F.3d 590, 593 permitting a defendant to be impeached on the stand with (5th Cir. 1996); United States v. Oplinger, 150 F.3d 1061, prior silence does not add substantially to this pressure. If, on 1066-67 (9th Cir. 1998). In Rivera, the Eleventh Circuit, the other hand, prearrest silence may be used as substantive citing Jenkins, held that “[t]he government may comment on evidence of guilt regardless of whether or not the defendant a defendant’s silence if it occurred prior to the time that he is testifies at trial, then the defendant is cast into the very arrested and given his Miranda warnings.” Rivera, 944 F.2d trilemma outlined by the Murphy Court. Because in the case at 1568. Although the defendant raised only a due process of substantive use a defendant cannot avoid the introduction challenge to the use of her prearrest silence, the Eleventh of his past silence by refusing to testify, the defendant is Circuit found no constitutional infirmity with the use of that under substantial pressure to waive the privilege against self- incrimination either upon first contact with police or later at trial in order to explain the prior silence. Perhaps most 8 importantly, use of a defendant’s prearrest silence as The Seventh Circuit distinguished the Doyle line of cases as substantive evidence of guilt substantially impairs the “sense follows: [T]he Doyle rule is predicated on the implied promise of the of fair play” underlying the privilege. Unlike in the case of Miranda warnings. The cases which have allowed impeachment impeachment use, the use of a defendant’s prior silence as by silence rely on the fact that the defendant opens himself to substantive evidence of guilt actually lessens the impeachment by taking the stand. There is, on the other hand, prosecution’s burden of proving each element of the crime. a constitutional right to say nothing at all about the allegations. While the presence of Miranda warnings might provide an additional reason for disallowing use of the defendant’s silence We also conclude that the government’s use of a as evidence of guilt, they are not a necessary condition to such defendant’s prearrest silence in its case in chief is not a a prohibition. legitimate governmental practice. Unlike the use of silence Savory, 832 F.2d at 1017-18 (citations omitted). 24 Combs v. Coyle No. 97-4369 No. 97-4369 Combs v. Coyle 21

[individual’s] position would have understood the situation.’” silence in the government’s case in chief. See id. The Fifth (quoting Berkemer, 468 U.S. at 442) (alteration in original)). Circuit in Zanabria held, without citing any cases, that the Applying that standard to the facts of this case leads to a Fifth Amendment did not protect the defendant’s prearrest conclusion that Combs was in custody when Officer Ventre silence because the silence at issue was not induced by the asked him for the second time what had happened. Although government. See Zanabria, 74 F.3d at 593. The court Miranda warnings are not required prior to routine explained: “The fifth amendment protects against compelled questioning when officers have no details concerning what self-incrimination but does not, as Zanabria suggests, happened when they arrive on the scene, see United States v. preclude the proper evidentiary use and prosecutorial Wolak, 923 F.2d 1193, 1196 (6th Cir.), cert. denied, 501 U.S. comment about every communication or lack thereof by the 1217 (1991), the instant case presents a different situation. defendant which may give rise to an incriminating inference.” Ventre personally took the shotgun away from Combs; he Id. Most recently, the Ninth Circuit joined the Fifth and testified that he “pointed [his] weapon at the subject on the Eleventh Circuits in holding that the use of a defendant’s ground and ordered him to drop the shotgun” and that he prearrest silence as substantive evidence of guilt does not “ordered him several times to drop the shotgun and [Combs] violate the Fifth Amendment. See Oplinger, 150 F.3d at started raising the shotgun toward me.” R. at 1042; J.A. at 1067. The Ninth Circuit, following the reasoning of Justice 2670 (Ventre Test.). In addition, ten or fifteen minutes passed Stevens’s concurring opinion in Jenkins, explained that “the from the time Ventre arrived on the scene until the second privilege against compulsory self-incrimination is irrelevant question. In that time, other officers had arrived and Ventre to a citizen’s decision to remain silent when he is under no would surely have had some details about the incident. A official compulsion to speak.” Id. at 1066. reasonable person in Combs’s situation could have believed that he was under arrest, and we therefore conclude that We agree with the reasoning expressed in the opinions of Combs was in custody. the Seventh, First, and Tenth Circuits, and today we join those circuits in holding that the use of a defendant’s prearrest Having decided that the privilege against self-incrimination silence as substantive evidence of guilt violates the Fifth applies to a prearrest situation, an analysis such as the one Amendment’s privilege against self-incrimination. Like those employed by the Court in Jenkins leads us to the conclusion circuits, we believe “that application of the privilege is not that the use of prearrest silence as substantive evidence of limited to persons in custody or charged with a crime; it may guilt is an impermissible burden upon the exercise of that also be asserted by a suspect who is questioned during the privilege. First, permitting the use of silence in the investigation of a crime.” Coppola, 878 F.2d at 1565. The government’s case in chief would substantially impair the Supreme Court has given the privilege against self- policies behind the privilege. The Supreme Court in Murphy incrimination a broad scope, explaining that “[i]t can be v. Waterfront Commission, 378 U.S. 52 (1964), explained: asserted in any proceeding, civil or criminal, administrative or judicial, investigatory or adjudicatory; and it protects against [The privilege against self-incrimination] reflects many any disclosures that the witness reasonably believes could be of our fundamental values and most noble aspirations: used in a criminal prosecution or could lead to other evidence our unwillingness to subject those suspected of crime to that might be so used.” Kastigar v. United States, 406 U.S. the cruel trilemma of self-accusation, perjury or 441, 444-45 (1972) (footnote omitted); see also Hoffman v. contempt; our preference for an accusatorial rather than United States, 341 U.S. 479, 486 (1951) (“[The privilege] an inquisitorial system of criminal justice; our fear that must be confined to instances where the witness has self-incriminating statements will be elicited by reasonable cause to apprehend danger from a direct answer.”); 22 Combs v. Coyle No. 97-4369 No. 97-4369 Combs v. Coyle 23

Hoffman, 341 U.S. at 486-87 (“To sustain the privilege, it to Combs, for we agree with the Ohio Supreme Court’s need only be evident from the implications of the question, in finding that Combs was in custody at the time he made the the setting in which it is asked, that a responsive answer to the “talk to my lawyer” statement. In Stansbury v. California, question or an explanation of why it cannot be answered 511 U.S. 318 (1994), the Supreme Court explained that “[i]n might be dangerous because injurious disclosure could determining whether an individual was in custody, a court result.”). In a prearrest setting as well as in a post-arrest must examine all of the circumstances surrounding the setting, it is clear that a potential defendant’s comments could interrogation, but ‘the ultimate inquiry is simply whether provide damaging evidence that might be used in a criminal there [was] a ‘formal arrest or restraint on freedom of prosecution; the privilege should thus apply. movement’ of the degree associated with a formal arrest.’” Id. at 322 (citing California v. Beheler, 463 U.S. 1121, 1125 Furthermore, we note that even under the reasoning of (1983)) (alteration in original). Moreover, in the custody Justice Stevens in his Jenkins concurrence, the Fifth determination, “the only relevant inquiry is how a reasonable Amendment would apply to Combs’s situation. In Jenkins, man in the suspect’s position would have understood his Justice Stevens agreed with the majority that the Fifth situation.” Id. at 324 (quoting Berkemer v. McCarty, 468 Amendment was inapplicable to the petitioner’s claim, but U.S. 420, 442 (1984)); see also United States v. Ozuna, 170 Justice Stevens objected to the majority’s reliance on the F.3d 654, 658 (6th Cir. 1999) (“Determination of whether an waiver theory of Raffel. See Jenkins, 447 U.S. at 241 individual is in custody for purposes of applying the Miranda (Stevens, J., concurring in the judgment). Instead, Justice doctrine considers ‘how a reasonable man in the Stevens would have ruled that the Fifth Amendment does not apply to a precustody context: “When a citizen is under no official compulsion whatever, either to speak or to remain government has already attempted to compel him to do so. If no silent, I see no reason why his voluntary decision to do one or officials have tried to get the person to speak, he evidently has the other should raise any issue under the Fifth Amendment. a duty to incriminate himself, because the reporting of crime is For in determining whether the privilege is applicable, the a civic duty and the Fifth Amendment is not applicable since the question is whether petitioner was in a position to have his decision to speak or remain silent is, at that time, “voluntary.” testimony compelled and then asserted his privilege, not But the prohibition against compelled self-incrimination is another way of expressing the right not to incriminate oneself. simply whether he was silent.” Id. at 243-44 (footnote After all, the only means of compelling a person to incriminate omitted). himself is to penalize him if he does not. Of course the voluntary decision to remain silent in the absence of any official Even assuming that the Fifth Amendment is inapplicable to compulsion does not “raise any issue under the Fifth precustody contexts,9 the privilege would still be applicable Amendment,” since there has been no self-incrimination at all. A voluntary decision to speak also does not implicate the Fifth Amendment because the self-incrimination was not compelled. 9 But to impose a duty to report one’s own crime before an official We stress that we do not believe that the Fifth Amendment comes accusation has been made would itself be to compel self- into play only when a defendant is taken into custody, for it would incrimination, thus bringing the Fifth Amendment into play. eviscerate the privilege to say that, although a defendant’s post-custody And, as Griffin v. California makes plain, the Constitution also silence may not be used as substantive evidence against him, a prohibits the government from burdening the right not to defendant’s precustody silence may. As Justice Marshall explained in his incriminate oneself by penalizing silence. In the present case the Jenkins dissent: violation of the Fifth Amendment occurred not when the I confess I find MR. JUSTICE STEVENS’ view of the Fifth defendant remained silent, but when that silence was later used Amendment incomprehensible. Apparently, under that view, a against him at his criminal trial. person’s right not to incriminate himself exists only if the Jenkins, 447 U.S. at 250 n.4 (Marshall, J., dissenting) (citations omitted).