Hicks v. Collins

• Court: Court of Appeals for the Sixth Circuit
• Decided: September 15, 2004
• Docket: 01-3764
• Status: Published

Opinion

RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Hicks v. Collins No. 01-3764 ELECTRONIC CITATION: 2004 FED App. 0315P (6th Cir.) File Name: 04a0315p.06 PATTERSON & TUCKER, Cincinnati, Ohio, for Appellant. Charles L. Wille, ATTORNEY GENERAL’S OFFICE OF OHIO, CAPITAL CRIMES SECTION, Columbus, Ohio, for UNITED STATES COURT OF APPEALS Appellee. FOR THE SIXTH CIRCUIT SILER, J., delivered the opinion of the court, in which _________________ DAUGHTREY, J., joined. CLAY, J. (pp. 30-43), delivered a separate opinion concurring in part and dissenting in part. JOHN R. HICKS, X Petitioner-Appellant, - _________________ - - No. 01-3764 OPINION v. - _________________ > , SILER, Circuit Judge. Petitioner John R. Hicks was TERRY COLLINS, Warden, - convicted after a trial by jury of two counts of aggravated Respondent-Appellee. N murder, Ohio Revised Code (O.R.C.) § 2903.01(B), and one count of aggravated robbery, O.R.C. § 2911.01. He was Appeal from the United States District Court sentenced to death. O.R.C. §§ 2929.04(A)(3), (A)(5), and for the Southern District of Ohio at Cincinnati. (A)(7). After unsuccessful direct appeals and state post- No. 94-00177—Herman J. Weber, District Judge. conviction proceedings, Hicks filed a petition for a writ of habeas corpus in accordance with 28 U.S.C. § 2254. The Argued: March 9, 2004 district court denied the petition and he appeals to this court. For the following reasons, we AFFIRM. Decided and Filed: September 15, 2004 I. BACKGROUND Before: SILER, DAUGHTREY, and CLAY, Circuit Judges. On August 2, 1985, Hicks acquired some cocaine in Cincinnati, Ohio. After ingesting the drug, he desired more _________________ and took the videocassette recorder (VCR) from the home he shared with his wife, Ghitana, and stepdaughter, Brandy COUNSEL Green. Hicks gave the VCR to a drug trafficker as security for a cocaine purchase. After consuming the cocaine, Hicks ARGUED: Marc D. Mezibov, MEZIBOV & JENKINS, realized he had no money with which to redeem the VCR. Cincinnati, Ohio, for Appellant. Charles L. Wille, Recognizing that the missing VCR would lead to problems ATTORNEY GENERAL’S OFFICE OF OHIO, CAPITAL with Ghitana, he decided to rob Maxine Armstrong, who was CRIMES SECTION, Columbus, Ohio, for Appellee. Ghitana’s mother and his mother-in-law. He knew that “if ON BRIEF: Marc D. Mezibov, MEZIBOV & JENKINS, [he] robbed her he would have to kill her.” State v. Hicks, Cincinnati, Ohio, Jarrod M. Mohler, ROBBINS, KELLY, 538 N.E.2d 1030, 1032 (Ohio 1989). Hicks went to

1 No. 01-3764 Hicks v. Collins 3 4 Hicks v. Collins No. 01-3764

Armstrong’s apartment, where he found Brandy asleep on the relationship of the expert’s expected testimony . . . and the couch. He woke her, put her to bed, and prepared to kill cost of said expert.” Armstrong, telling himself, “you go do it or you don’t.” Id. at 1033. The guilt phase of Hicks’s trial began on February 3, 1986. Hicks did not present any evidence on his insanity defense Hicks killed Armstrong by strangling her with a clothes line and subsequently withdrew his insanity plea. On February he had brought with him. He stole approximately $300 and 12, 1986, the jury found Hicks guilty on all counts. The some credit cards from her apartment. He then retrieved the sentencing phase of his trial began on February 13, 1986, and VCR from the drug dealer and purchased more cocaine. Hicks presented mitigating evidence and made an unsworn Around 12:30 a.m. on August 3, after injecting the cocaine, statement. On February 14, 1986, the jury recommended he “got to thinking again” and realized that Brandy could death for the murder of Brandy Green and life imprisonment identify him as the last person to visit Armstrong. Therefore, for the murder of Maxine Armstrong. Based upon its he decided to return to the apartment to kill Brandy. independent review of the evidence, the trial court sentenced Hicks to death for Green’s murder, thirty-years’ Upon returning to Armstrong’s apartment he tried to imprisonment for Armstrong’s murder, and ten to twenty- smother Brandy with a pillow. As Brandy was “bucking” and five-years’ imprisonment for aggravated robbery. “fighting,” he tried to choke her with his hands. When she continued to make breathing sounds, he affixed duct tape over Hicks appealed to the Ohio Court of Appeals and asserted her nose and mouth. After killing Brandy, Hicks moved nine assignments of error. In 1988, the appellate court Armstrong’s body into the bathtub so that he could affirmed his convictions. He appealed to the Supreme Court dismember it for easier disposal. After nearly severing one of of Ohio, asserting ten assignments of error. It rejected his her legs with a kitchen knife, however, he gave up and arguments and affirmed his sentences. Hicks’s subsequent returned to the bedroom where Brandy’s body was located. motion for rehearing was denied by the Ohio Supreme Court He removed her underwear and digitally penetrated her in 1989. He then filed a petition for writ of certiorari in the vagina. He then stole other items from the apartment, United States Supreme Court, but it was also denied. returned to his own apartment, and fled Cincinnati. On August 4, he surrendered to police in Knoxville, Tennessee, In 1990, pursuant to O.R.C. § 2953.21, Hicks filed a where he confessed to both murders. Hicks was returned to petition for post-conviction relief in the Hamilton County Cincinnati and made additional incriminating statements to Court of Common Pleas, raising forty-one issues for review. Cincinnati homicide detectives Robert Hennekes and Joe The trial court denied his motion for relief from judgment. Hoffman. Hicks appealed to the court of appeals, raising twelve assignments of error. In 1993, the appellate court affirmed After Hicks was indicted, he filed a suggestion of the decision of the trial court. Hicks then sought incompetence to stand trial. The trial court conducted discretionary review before the Ohio Supreme Court, which evidentiary hearings and found him competent to stand trial. dismissed his appeal on July 21, 1993, for lack of a While the trial court denied the majority of Hicks’s pre-trial substantial constitutional question. motions, it deferred ruling on his motion for funding to hire experts until he could “provide more specific information as In the interim, Hicks filed an application for delayed to the identity and qualification of said expert or experts, the consideration in the Ohio appellate court in September 1992, No. 01-3764 Hicks v. Collins 5 6 Hicks v. Collins No. 01-3764

submitting thirty-seven assignments of error. On pursuant to an independent and adequate state procedural rule, December 1, 1992, the appellate court denied his application federal habeas review of the claims is barred unless the and he appealed to the Ohio Supreme Court. On October 27, prisoner can demonstrate cause for the default and actual 1993, the Ohio Supreme Court affirmed. On December 15, prejudice as a result of the alleged violation of federal law.”1 1993, the Ohio Supreme Court denied his motion for Monzo v. Edwards, 281 F.3d 568, 575 (6th Cir. 2002) rehearing. On March 5, 1993, Hicks filed a motion for (citations omitted). In determining whether a claim has been reinstatement of direct appeal in the Ohio Supreme Court, procedurally defaulted, this court has applied the following which in turn denied his request. four-part test: (1) the court must determine that there is a state procedural rule with which the petitioner failed to In 1994, Hicks filed a petition for a writ of habeas corpus comply; (2) the court must determine whether the state courts with the United States District Court for the Southern District actually enforced that state procedural rule; (3) the state of Ohio. An evidentiary hearing was held in 1997. In April procedural rule must have been an adequate and independent 2001, the district court entered its thorough 171-page order state procedural ground upon which the state could rely to denying Hicks’s petition. However, it issued a certificate of foreclose review of a federal constitutional claim; and (4) if appealability (“COA”) on the issues of ineffective assistance the court has determined that a state procedural rule was not of counsel during the guilt and penalty phases and complied with and that the rule was an adequate and prosecutorial misconduct. We granted Hicks’s request for a independent state ground, then the petitioner must COA on the additional issue of ineffective assistance of demonstrate that there was cause for his failure to follow the appellate counsel. rule and that actual prejudice resulted from the alleged constitutional error. Maupin v. Smith, 785 F.2d 135, 138 (6th II. STANDARD OF REVIEW Cir.1986). A. Pre-AEDPA In Ohio, res judicata bars state courts from considering constitutional claims in post-conviction collateral attacks Hicks filed his habeas petition before the effective date of (brought under Ohio Rev. Code Ann. § 2953.21) when those the Antiterrorism and Effective Death Penalty Act (AEDPA). claims have already been or could have been fully litigated on “Under pre-AEDPA analysis, ‘this court reviews a district direct appeal. Monzo, 281 F.3d at 576. Res judicata also bars court’s refusal to grant a writ of habeas corpus de novo, but ineffective assistance of trial counsel claims, not asserted on reviews the district court’s factual findings for clear error.’” direct appeal, when the defendant is represented by a different Zuern v. Tate, 336 F.3d 478, 481 (6th Cir. 2003) (quoting Coe counsel on direct appeal. Id. at 576-77. However, if the v. Bell, 209 F.3d 812, 823 n.2 (6th Cir. 2000)). defendant was represented by the same counsel at trial and on direct appeal, claims of ineffective assistance of trial counsel B. Procedural Default Hicks has procedurally defaulted every claim except the ineffective assistance of trial counsel claims and one 1 Hicks does not assert actual innocence and thus does not claim the prosecutorial misconduct claim regarding an appeal to the other excuse - a man ifest miscarriage o f justice. See M urray v. C arrier, jury to act as the community’s conscience. When “a state 477 U.S. 478, 496 (1986) (court may grant writ in the absence of a prisoner has defaulted his federal claims in state court showing of cause and preju dice w hen “a constitutional violatio n has probably resulted in the conviction of one who is actually innocent”). No. 01-3764 Hicks v. Collins 7 8 Hicks v. Collins No. 01-3764

are not defaulted because appellate counsel will rarely assert application because Hicks failed to show good cause to justify his own ineffectiveness at trial. See Buell v. Mitchell, 274 his delay, i.e., Hicks filed his reconsideration application too F.3d 337, 348 n.3 (6th Cir. 2001). late. Hicks had the same counsel on direct appeal, so his As a result, the Murnahan rule requiring ineffective ineffective trial counsel claims are cognizable; however, he appellate counsel claims to be filed in reconsideration has procedurally defaulted his other claims regarding applications rather than post-conviction petitions stands as an ineffective appellate counsel and prosecutorial misconduct independent state ground barring this court from considering (other than the jury-as-community-conscience claim) because Hicks’s claim. Hicks asserts the same defense we rejected in he did not assert the claims on direct appeal. Seeking to Coleman, namely, that the Ohio courts were split on the excuse this default, Hicks naturally argues ineffective correct procedure before Murnahan. However, as in assistance of appellate counsel for failing to raise the Coleman, since the rule was well settled in the court of defaulted claims on direct appeal. Unfortunately for Hicks, appeals where Hicks appealed that ineffective appellate he has procedurally defaulted his ineffective appellate counsel counsel claims should be asserted in reconsideration claims as well. While defendants may assert ineffective applications, the rule represents an established adequate and assistance of counsel as cause to excuse procedural default, independent state ground. Coleman, 244 F.3d at 539-40. the ineffective assistance excuse “can itself be procedurally Thus, Hicks has procedurally defaulted his ineffective defaulted.” Edwards v. Carpenter, 529 U.S. 446, 453 (2000); appellate counsel claim and, in turn, all the claims he failed to Monzo, 281 F.3d at 575-578. A strikingly on-point case, bring on direct appeal because he cannot assert it as cause. Coleman v. Mitchell, 244 F.3d 533 (6th Cir. 2001), shows that Hicks has procedurally defaulted his ineffective appellate In sum, all of Hicks’s claims not directly asserted on appeal counsel claim and, as a result, defaulted all other claims upon are procedurally defaulted because he procedurally defaulted which he asserts ineffective appellate counsel as cause. his ineffective assistance of appellate counsel claim and cannot assert it as cause. The exception exists for all claims In Ohio, pursuant to State v. Murnahan, 584 N.E.2d 1204 of ineffective trial counsel because the same counsel served (Ohio 1992), ineffective assistance of appellate counsel as trial and appellate counsel. claims must be raised in a delayed motion for reconsideration to the direct appeal court, not in a petition for state post- DISCUSSION conviction relief. Coleman, 244 F.3d at 539. In April 1991, Hicks incorrectly asserted his ineffective appellate counsel A. Ineffective Assistance of Trial Counsel claim in his petition for post-conviction relief, and the post- conviction court dismissed the claim pursuant to the appellate 1. Cocaine Expert court’s rule that ineffective appellate claims should be asserted in reconsideration motions. The Ohio Supreme Hicks first alleges that he was denied the effective Court subsequently adopted that rule in Murnahan in assistance of counsel during the guilt phase of his trial February 1992. Hicks waited seven months after Murnahan because his counsel failed to consult with or obtain an expert (September 1992) to file a delayed reconsideration application on the effects of cocaine on the human body. Prior to trial, – the correct motion for an ineffective appellate counsel Hicks’s counsel, Dominic Perrino and James Rueger, filed a claim. The Ohio Court of Appeals denied the reconsideration notice of intent to rely on the defense of not guilty by reason No. 01-3764 Hicks v. Collins 9 10 Hicks v. Collins No. 01-3764

of insanity. Hicks had not been evaluated prior to the filing does not meet the definition of “disease or defect”; Hicks of this notice and none of the three experts who subsequently understood his actions; the duration of cocaine intoxication evaluated him concluded that he was insane on the date of the peaks at about fifteen to twenty minutes; and injection of murders. As Hicks’s counsel realized during pretrial cocaine, rather than inhalation, leads to a quicker reaction, investigation that his cocaine ingestion could affect the guilt although “the intensity or symptoms are equally the same” and penalty phases of his trial, they applied for the whether injecting or inhaling it. Dr. Schmidtgoessling’s appointment of an expert witness pursuant to O.R.C. testimony was damaging to Hicks’s case because it § 2929.024.2 Hicks’s counsel anticipated the need for an significantly narrowed the time in which he could have been expert on the pharmacological, physiological, and psychiatric acting under the influence of cocaine. Because Hicks’s effects of cocaine, specifically as it related to his ability to counsel were surprised by Dr. Schmidtgoessling’s testimony form intent to commit aggravated murder and any diminished and “as to the affect that she testified as her qualifications as mental capacity for mitigation purposes. The trial court to what cocaine affect has on a person, how long lasting it advised Hicks’s counsel that if they came forward with such was,” they attempted to use Dr. Ross Zumwalt, the Hamilton an expert witness the request would probably be granted. The County Coroner, as a “cocaine expert” during cross- trial court deferred ruling on Hicks’s motion, specifically examination. Dr. Zumwalt’s testimony did not benefit Hicks. “taking it under submission pending further evidence, further The district court denied Hicks’s habeas relief on his claim of argument from defense counsel.” Nevertheless, Hicks’s ineffective assistance of trial counsel because he feigned counsel neither renewed the motion to appoint an expert nor mental illness and refused to cooperate with his counsel, obtained an expert, instead relying upon the testimony of Dr. concluding that Hicks’s “failure to cooperate had an adverse Nancy Schmidtgoessling, a court-appointed psychologist. impact on the ability of his defense counsel to conduct his defense and that the decision to use Dr. Schmidtgoessling as Dr. Schmidtgoessling’s testimony on Hicks’s behalf was a defense expert was a tactical decision by counsel and less than favorable. Although Dr. Schmidtgoessling did not appropriate under the circumstances.” hold herself out as a “cocaine expert,” she had been directed to evaluate Hicks regarding his competency and to determine For Hicks to establish a violation of the Sixth Amendment if he was insane on the date of the crimes. While she testified right to counsel, he must satisfy two components. First, he that Hicks’s criminal actions were consistent with cocaine must show that his counsel’s performance was deficient, intoxication and that he was probably impaired, she which “requires showing that counsel made errors so serious nonetheless opined that he acted with purpose and intent. that counsel was not functioning as the counsel guaranteed According to Hicks, Dr. Schmidtgoessling inaccurately [him] by the Sixth Amendment.” Wickline v. Mitchell, 319 testified as to the following: voluntary cocaine intoxication F.3d 813, 819 (6th Cir. 2003) (quoting Strickland v. Washington, 466 U.S. 668, 687 (1984)). Second, he “must show that the deficient performance prejudiced the defense[,] 2 O.R.C. § 2929.024 provides that if an indigent defendant is charged . . . [which] requires showing that counsel’s errors were so with aggravated murder, the court in its discretion may authorize defense serious as to deprive [him] of a fair trial, a trial whose result counsel to ob tain an expert if necessary for the proper presentation of the is reliable.” Id. (quoting Strickland, 466 U.S. at 687). “To defendant’s trial or sentencing hearing. The payment for the expert’s fees demonstrate that counsel’s performance was deficient, and expe nses are to be made in the same mann er that payment for [Hicks] ‘must show that counsel’s representation fell below appointed counsel is made pursuant to Chapter 120 of the Ohio Revised Code. an objective standard of reasonableness.’” Roberts v. Carter, No. 01-3764 Hicks v. Collins 11 12 Hicks v. Collins No. 01-3764

337 F.3d 609, 614 (6th Cir. 2003) (quoting Strickland, 466 to testify as to the effects of cocaine and the duration it U.S. at 688). To demonstrate prejudice, he “must show that would” have upon a person. Dr. Schmidtgoessling conceded there is a reasonable probability that, but for counsel’s that, to the best of her recollection, she did not expect to unprofessional errors, the result of the proceeding would have render an opinion on anything other than Hicks’s competency been different.” Wickline, 319 F.3d at 819 (quoting and insanity. Strickland, 466 U.S. at 694). Our “[r]eview of counsel’s performance is highly deferential and requires that [we] “In Ohio, evidence of voluntary intoxication ‘may be ‘indulge a strong presumption that counsel’s conduct falls considered in determining whether an act was done within the wide range of reasonable professional assistance.’” intentionally or with deliberation and premeditation.’” Id. (quoting Strickland, 466 U.S. at 689). “Both the Combs, 205 F.3d at 288 (quoting Ohio v. Fox, 428 N.E.2d performance and prejudice components of the ineffectiveness 410, 412 (Ohio 1981)); see also State v. Wolons, 541 N.E.2d inquiry are mixed questions of law and fact entitled to de 443, 446 (Ohio 1989).4 In Combs, this Court was presented novo review.” Combs v. Coyle, 205 F.3d 269, 278 (6th Cir. with a similar claim of ineffective assistance of counsel. 2000). Combs’s counsel employed one expert witness, Dr. Roger Fisher, a clinical psychologist, to testify as to Combs’s drug On habeas review at the evidentiary hearing before the and alcohol abuse and his intoxication on the day he district court, Hicks offered the testimony of Dr. Theodore committed two aggravated murders. Although Combs’s Parran, an expert on the effects of cocaine use.3 Dr. Parran counsel intended to elicit testimony that Combs was incapable observed that Hicks suffered from cocaine psychosis, which of acting with purpose or intent due to his diminished is an extreme psychotic state brought about by frequent capacity, Dr. Fisher opined during cross-examination that cocaine binging, at the time of the crimes. According to Dr. Combs acted purposefully and intentionally even though he Parran, Dr. Schmidtgoessling’s testimony was erroneous and was intoxicated. Identically, Hicks claims that his counsel’s the jury was misinformed as to Hicks’s condition. In fact, he failure to anticipate, avoid, or prepare for Dr. viewed her testimony as the “primary information which was Schmidtgoessling’s damaging testimony constituted inaccurate[.]” Rueger testified at the evidentiary hearing that ineffective assistance of counsel. Moreover, as in Combs, the the defense’s decision not to employ a “cocaine expert” was prosecution highlighted the inconsistencies between the not the result of any tactical decision; rather, it was a matter defense’s theory of voluntary cocaine intoxication and Dr. of economics because he did not believe the trial court “was Schmidtgoessling’s testimony during its closing argument. going to appoint anybody that wasn’t from around [the The district court, however, differentiated Combs from Cincinnati] area.” In his deposition, Perrino testified that he Hicks’s claim “because Dr. Parran could not have testified was “somewhat taken aback and surprised” by Dr. that [] Hicks’s use of cocaine negated his ability to act Schmidtgoessling’s testimony regarding the duration of the purposely, his input would not have altered the results of the cocaine’s influence on Hicks and that he “was unaware prior trial and defense counsel would have been subjected to the to trial as to the duration[] because we did not have a witness same criticism which carried the day in Combs . . . .”

3 4 Hicks claims Parran to be a “cocaine expe rt” because he allegedly As of October 27, 2000, however, “[v]oluntary intoxication may not “devotes approximately 70% of his time to the treatm ent of ind ividuals be taken into consideration in determining the existence of a mental state who are ad dicted to cocaine and o ther illegal substances.” that is an element of a criminal offense.” O.R.C. § 2901.21(C). No. 01-3764 Hicks v. Collins 13 14 Hicks v. Collins No. 01-3764

Despite any similarity to Combs, Hicks was not denied the Third, and most importantly, even if the jury had been effective assistance of counsel. First, there was informed of cocaine psychosis and its effects, the result of the overwhelming evidence of Hicks’s guilt; therefore, he cannot proceeding would not have been different. Like Dr. demonstrate “that there is a reasonable probability that, but Schmidtgoessling, Dr. Parran testified that Hicks’s actions for counsel’s errors, the factfinder would have had a were purposeful and that “certainly people can do purposeful reasonable doubt about his guilt.” Id. at 290 (citing actions when they’re involved in cocaine psychosis.” Strickland, 466 U.S. at 695). Accordingly, Hicks failed to Additionally, Dr. Parran could not testify that Hicks was satisfy the prejudice prong of Strickland. insane at the time he committed the offenses. The decision to employ Dr. Schmidtgoessling was a direct result of Hicks’s Second, the record indicates that Hicks was a malingerer refusal to cooperate with his counsel. See Coleman, 244 at who refused to assist his counsel in the preparation of his 545 (death penalty petitioner was not subjected to ineffective defense. For example, prior to trial Perrino informed the trial assistance of counsel where he did not cooperate with his court that defense counsel needed a “cocaine expert” because counsel concerning the investigation and identification of they did “not have assistance from our client except that we mitigating evidence, imposed restrictions upon his counsel, know from certain things that he indicated in statements that and refused to submit to further psychological or psychiatric were given to us to the ingestion of cocaine and what its testing). A fair assessment of counsel’s performance requires effect may have on him.” Furthermore, although Rueger that we “evaluate [their] conduct from counsel’s perspective observed that Hicks was “fully communicative” during their at the time.” Combs, 205 F.3d at 278 (quoting Strickland, first meeting, Hicks later “went into a shell, . . . wouldn’t talk, 466 U.S. at 690). wouldn’t look at you, just stared off in the distance and kind of rocked back and forth.” Rueger also insisted that Hicks’s 2. Prejudicial Comments lack of cooperation and participation in his own defense adversely affected his counsel’s preparation of the case. Hick next claims that his counsel was ineffective for failing Rueger cited a specific instance in which he and Perrino to object to (1) “the prosecution’s statements that the “couldn’t even communicate or ask [Hicks] whether or not community and state of Ohio mandate the death penalty” the notes that the Police Officers in Cincinnati had taken . . . against him; (2) the prosecution’s representations that “they were consistent with what he remembered talking to them had already determined that Hicks was guilty, and that death about.” Dr. James Reardon, a counseling psychologist who was the only appropriate punishment”; (3) statements made testified during the evidentiary hearing on behalf of Warden by both the trial court and prosecution during voir dire that Collins, insisted that “Dr. Schmidtgoessling was prevented the jury’s decision on the question of life or death was merely from administering and interpreting any psychological tests” a “recommendation”; and (4) the prosecution’s “incorrect and upon Hicks due to his feigning mental illness; Dr. misleading statements about the legitimacy of the defense of Schmidtgoessling could not obtain “any kind of coherent not guilty by reason of insanity.” Hicks’s objections on these history or representation of the circumstances and facts of the points are without merit. In each instance, Hicks either case based on [] Hicks’s behavior”; and by reason of Hicks’s mischaracterizes the objectionable statement, cites a statement behavior and lack of cooperation, his counsel were unable to have any psychological tests performed upon him, “which may have contributed to their ability to assess him in a more complete way.” No. 01-3764 Hicks v. Collins 15 16 Hicks v. Collins No. 01-3764

to which a proper objection was lodged,5 or objects to a faulty record-keeping prejudiced him – he does not explain statement that was not improper.6 how the proceedings would have been different. The second claim is without merit because counsel’s depiction of his A second subset of Hicks’s “failure to object” claims client’s crimes as “dastardly” and “heinous” may well have centers on the prosecution’s closing argument. Specifically, been a tactical decision designed to encourage the jury to Hicks argues that his counsel was ineffective for failing to spare Hicks’s life by convincing it that he recognized the object to (1) the prosecution’s comments about the penalty brutality of his crimes. The wisdom of using such adjectives phase; (2) victim impact statements; (3) the prosecution’s is certainly subject to challenge in hindsight, but it is expression of its opinion respecting Hicks’s guilt and the precisely this sort of hindsight-driven judgment that statement that “[t]here is no doubt in the defense’s mind that Strickland forbids. the defendant was guilty”; and (4) the prosecution’s statement that even the trial court did not believe Hicks’s defenses. A 3. Mitigation review of the record reveals that these objections are wholly groundless, with the exception of the prosecution’s comment Hicks further claims that his trial counsel was ineffective in about the defense’s state of mind. On its face, this comment failing to introduce evidence of his abusive upbringing, is inappropriate. A review of the context in which it was problems in school, poor self-esteem, and history of drug and made, however, illustrates that it was harmless. The comment alcohol abuse in mitigation. Arguably his most compelling was made in the course of the prosecution’s explanation that contention is that counsel should have, at a minimum, called not even the defendant contested that he was the one who had some sort of expert witness instead of relying on the murdered the victims. Therefore, the statement was hardly testimony of his mother and six former co-workers, who prejudicial. generally testified that Hicks was a “good guy” and that his crimes were out of character. At the evidentiary hearing Hicks also asserts two other claims of ineffective assistance before the district court, Dr. Susan Shorr, a mitigation during the guilt phase. First, he argues that counsel was specialist, and Dr. Julia Hawgood, a clinical psychologist, ineffective for failure to preserve records of side-bar opined that this failure to call a psychiatric or psychological conferences. Second, Hicks argues that his counsel was expert rendered counsel’s mitigation efforts ineffective. ineffective because they repeatedly referred to his crimes as “dastardly” and “heinous.” The first claim is without merit Under the Strickland standard, however, Hicks’s counsel because Hicks makes no attempt to show how the allegedly- was not constitutionally ineffective in mitigation. This is so because, as the district court found, “Mr. Hicks did not assist his counsel because he was feigning the symptoms of mental 5 illness.” It is significant that Dr. Shorr, who testified at the For exam ple, H icks objected to the prosecution’s reference to the jury’s penalty determination as a “recommend ation” and moved for a evidentiary hearing that counsel’s mitigation strategy was mistrial. The trial court sustained the objection but denied the mistrial substandard, “did not consider, in making her opinion, the motio n. fact that Mr. Hicks refused to cooperate with his counsel.” Similarly, Dr. Hawgood, whose testimony was to the same 6 Examples of such statements are the prosecution’s voir dire effect, conceded that “Mr. Hicks admitted [to her, in the questions regarding the validity of the insanity and intoxication d efenses. course of her evaluation of him] that prior to and during his The statements were not improper, particularly considering that there was evide nce that Hicks had feigned insanity and was malingering. No. 01-3764 Hicks v. Collins 17 18 Hicks v. Collins No. 01-3764

trial he had feigned mental illness.”7 This singular fact – that admitted or she had testified, the jury would have learned this Hicks did little to participate in his own defense because he information. In all likelihood, this fact would have been was faking a mental illness – distinguishes this case from unfavorable to Hicks. Furthermore, while Hicks was those Hicks relies upon and effectively forecloses a finding molested by a juvenile when he was a child, Hicks molested that counsel was ineffective. Brandy, postmortem, when he was an adult. Therefore, defense counsel made a tactical decision to keep this Hicks further argues that his counsel was ineffective in potentially-damaging information from the jury. failing to present his history of sexual abuse to the jury. He alleges that his counsel “entirely overlooked the detailed We “reject[] [Hicks’s] claim that the failure of his counsel information concerning [his] background that Shirley Leahy to investigate mitigating evidence amounted to ineffective had compiled for the court psychiatric clinic.”8 Leahy assistance because [Hicks was] uncooperative . . . .” Martin compiled a detailed report concerning Hick’s background v. Mitchell, 280 F.3d 594, 612 (6th Cir. 2002) (citing which, although her report was available to Hicks’s counsel Coleman, 244 F.3d at 545-46). There is an “extremely high for mitigation purposes, was never used. Hicks also claims standard that must be met for counsel’s representation in the that while many of his relatives were prepared to testify penalty phase to be considered constitutionally inadequate[,]” during the mitigation phase of his trial, none was called to do Mason v. Mitchell, 320 F.3d 604, 643 (6th Cir. 2003) (Boggs, so. J., dissenting), and Hicks has fallen short of that standard. Despite Hicks’s contentions, his counsel was not 4. Penalty Phase ineffective. Hicks was uncooperative and never communicated any history of sexual abuse to his counsel. The overwhelmingly majority of Hicks’s panoply of Although Perrino reviewed Leahy’s report, defense counsel’s penalty phase ineffective assistance claims relate to counsel’s failure to introduce the report or call Leahy as a witness was perceived ineffectiveness in failing to object to certain probably a tactical decision. For instance, in the “Sexual comments made by the prosecution during closing arguments. History” section of Leahy’s report, she documented that Generally, these claims are without merit and, dependent as Hicks was molested by a fourteen-year-old male cousin when they are on the merits of the underlying prosecutorial he was eight years old. In addition, Hicks confided in Leahy misconduct claims, are addressed elsewhere. that he engaged in homosexual prostitution as a teenager and after he married his first wife. If Leahy’s report had been Perhaps Hicks’s strongest claim in this regard is that his counsel was ineffective for failing to object to the prosecution’s mention of his likelihood of recidivism. Stated 7 the prosecutor: “I think that is one of the primary This conc ession is particularly damaging to H icks’s spe cific considerations you should make. In twenty or thirty years contention that counsel was ineffective for failing to call a psychologist or other expert during the mitigation phase because, had counsel in fact what happens if [Hicks] does this again?” Even this claim called such an expert, the prosecutio n could have introd uced this ultimately fails – assuming that such a comment is concession in rebuttal. As it was, the jury was not privy to this damning information.

8 Shirley Leahy, a clinical social worker who interviewed Hicks prior to trial, aided Dr. Schmidtgoessling in constructing H icks’s soc ial history. No. 01-3764 Hicks v. Collins 19 20 Hicks v. Collins No. 01-3764

inappropriate,9 it certainly does not rise to the level of misconduct must have “so infected the trial with unfairness as prosecutorial misconduct. As the evidence against Hicks was to make the resulting conviction a denial of due process.” Id. more than substantial, see Bowling v. Parker, 344 F.3d 487, (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)). 512-13 (6th Cir. 2003), and Hicks’s counsel objected to this Even if the prosecution’s conduct was improper or even statement, Hicks received the effective assistance of counsel. “universally condemned,” id., this court can only reverse if the statements were so flagrant as to render the entire trial Hicks also advances two claims arising from the acts of his fundamentally unfair. If this court finds a statement own counsel. First, Hicks finds fault with one of his improper, four factors are considered in determining whether attorney’s statements to the jury regarding Hicks’s parole the impropriety is flagrant: “(1) the likelihood that the eligibility. Second, Hicks objects to counsel’s statement in remarks would mislead the jury or prejudice the accused, closing that “there is a special hell in Dante for those (2) whether the remarks were isolated or extensive, righteous people that have to mete out justice.” Both claims, (3) whether the remarks were deliberately or accidentally however, are without merit. As to the former, it is difficult to presented to the jury, and (4) whether other evidence against perceive how counsel’s statement that Hicks would not be the defendant was substantial.” Bowling, 344 F.3d at 512-13. eligible for parole until he was at least eighty years old prejudiced him in any way. At a minimum, such a statement Hicks complains that the State’s closing argument can be said to fall with the ambit of Strickland’s “tactical improperly urged the jury to act as the community’s decisions,” which are “virtually unchallengeable.” As to the conscience. Particularly, he cites the prosecution’s statements second objection, Hicks’s counsel was simply responding to that “it is time you sent a message to the community” and earlier Biblical references made by the prosecution. Such “the people in the community have the right to expect that assistance may not be said to be “ineffective.” you will do your duty.” These statements were arguably proper general references to the societal need to punish guilty 5. Ineffective Assistance of Appellate Counsel people, rather than an improper “attempt to compare or to associate the defendant with a feared and highly publicized For reasons previously addressed, Hicks’s claim of group . . . .” Id. at 516-517. ineffective assistance of appellate counsel is procedurally defaulted. Contrary to the prosecutor’s statements in United States v. Solivan, 937 F.2d 1146, 1151 (6th Cir. 1991), the B. Prosecutorial Misconduct “community conscience” statements at issue here were not “calculated to incite the passions and prejudices of the jurors On habeas review, this court reviews claims of . . . .” In Solivan, the prosecutor’s statements regarding the prosecutorial misconduct deferentially. Darden v. societal need to punish drug traffickers, such as defendant, Wainwright, 477 U.S. 168, 181 (1986). To be cognizable, the was so gross as to probably prejudice her. The Solivan Court repeatedly referred to the “War on Drugs,” which was a popular topic in this country at the time of defendant’s trial. 9 The case law, albeit scant, suggests that such commentary may be See id. at 1153-57 (“The statements were deliberately injected acceptable. See., e.g., An drew s v. De land , 943 F.2d 1162 (10 th Cir. into the proceedings to inflame the jurors’ emotions and fears 1991), overruled in different p art by Da niels v. U nited States, 254 F.3d associated with the current drug epidemic that is reported 1180 (10th Cir. 2001 ); And rews v. Barnes, 743 F. Supp. 1496 (D. Utah 199 0). daily in our newspapers and which threatens the very fabric No. 01-3764 Hicks v. Collins 21 22 Hicks v. Collins No. 01-3764

of our society.”). Conversely, in the instant appeal and as just guilt phase of Hicks’s trial, Officer Hennekes testified on indicated, the prosecutor’s statements only referred to “the cross-examination that during an interview between him, general community need to convict guilty people.” Id. at Officer Hoffman, and Hicks, he asked what Hicks thought 1155. More importantly, such statements “were devoid of the would happen as a result of the murders. Hicks allegedly sort of inflammatory content inherent in the prosecutor’s responded, “They will probably give me the electric chair.” statements in [Solivan] precisely because there was no Officer Hennekes then asked, “Don’t you think you should comparable specific wider context of national attention and get the electric chair for what you did?” Hicks responded, concern” here regarding the conviction of double-murderers “Yeah, I do.” This was the first time defense counsel learned like Hicks. See id. at 1154-55. Solivan is inapposite – it is of these statements. Upon completion of this testimony, untenable to suggest that the prosecutor’s statements were Hicks moved for a mistrial premised upon the prosecution’s directed to the jurors’ desire to end a social problem. Cf. id. failure to comply with his pretrial discovery request, which at 1153. These remarks were not misleading, inflammatory, the trial court denied. Hicks’s counsel never requested that or prejudicial. Assuming arguendo, however, that there was the testimony be stricken from the record or for an error, it was only harmless since the evidence of Hicks’s guilt admonition to the jury to disregard the testimony. was overwhelming. See id. at 1156 (prosecutorial error may be held harmless “in light of the relative strength of the Officer Hoffman’s notes of Hicks’s interview do not evidence”). The prosecutor’s remarks were isolated and not includes these statements. Both parties agree that this so improper as to render the trial fundamentally unfair. information was not given to the defense prior to trial; Bowling, 344 F.3d at 512-13. however, the prosecution could not recall if it was aware of these statements prior to trial. Officer Hennekes’s testimony C. Claims Procedurally Defaulted is the only evidence that Hicks uttered these statements. Hicks insists that these statements “were inherently and Hicks procedurally defaulted the following prosecutorial inordinately prejudicial because they conveyed to the jury misconduct claims by not asserting them on direct appeal. Hicks’[s] apparent acquiescence in the correctness of a Rather than challenging this determination, he asserts recommendation of death as the appropriate penalty in his ineffective assistance of appellate counsel as cause for case.” excusing the default. As addressed above, this is not proper cause and the claims are defaulted; regardless, the defaulted To the extent Hicks premises his argument upon Ohio claims are analyzed below. Hicks still loses on the merits Criminal Rule 16(B)(1)(a)(ii), there is no constitutional because, for every claim, either the prosecution’s act was not violation cognizable on habeas. See Lorraine v. Coyle, 291 improper or was not flagrant enough to result in enough F.3d 416, 441 (6th Cir. 2002); see 28 U.S.C. § 2254(a) prejudice to render the entire trial fundamentally unfair. (habeas corpus proceedings may be entertained only if Hicks “is in custody in violation of the Constitution or laws or 1. Failure to Disclose Statements treaties of the United States”). To the extent that Hicks states an alleged constitutional violation under Brady, however, he Hicks claims that, in violation of Brady v. Maryland, 373 was denied a fair trial only if the prosecutorial misconduct U.S. 83, 87 (1963), and Ohio Criminal Rule 16(B)(1)(a)(ii), was “so pronounced and persistent that it permeate[d] the the prosecution failed to provide him with inculpatory entire atmosphere of [his] trial,” or “so gross as probably to statements he made to Cincinnati police officers. During the No. 01-3764 Hicks v. Collins 23 24 Hicks v. Collins No. 01-3764

prejudice [him].” United States v. Vance, 871 F.2d 572, 577 prosecution responded that it had obtained these records (6th Cir. 1989) (citations omitted). through its investigators and Hicks could have done the same. The prosecution acknowledged that it was its practice to have Brady requires that the government turn over evidence in investigators or police officers conduct record checks of its possession to the defense that is both favorable to the prospective jurors, particularly in high profile cases. Based accused and material to guilt or punishment. 373 U.S. at 87. upon the information in these records, during voir dire the Pursuant to Brady, “evidence is material only if there is a prosecution twice made reference to the non-felonious reasonable probability that, had the evidence been disclosed criminal history of prospective jurors and, after the to the defense, the result of the proceeding would have been prosecution’s challenge for cause was denied, exercised a different.” United States v. Bagley, 473 U.S. 667, 682 (1985). peremptory challenge to remove one juror. While Hicks “The Brady rule does not assist a defendant who is aware of concedes that “it is difficult to say that the prosecution’[s] use essential facts that would allow him to take advantage of the of this information to strike certain potential jurors effected exculpatory evidence at issue.” Coleman v. Mitchell, 268 the verdict or sentence, it is clear that the inability to access F.3d 417, 438 (6th Cir. 2001). the information jeopardized [his] right to a fair trial.” There is no Brady violation here since there is no evidence This claim fails. Convictions are public record. State v. that the prosecution knew of Hicks’s statements before trial. Cook, 700 N.E.2d 570, 579 (Ohio 1998). Although the These statements were elicited during Hicks’s cross- prospective jurors’ arrest records may or may not constitute examination of Officer Hennekes, not on direct examination confidential law enforcement investigatory records, see State by the prosecution. Moreover, as Hicks allegedly uttered ex rel. Outlet Communications, Inc. v. Lancaster Police these statements, he knew whether he made them and could Dep’t, 528 N.E.2d 175, 178 (Ohio 1988) (in context of have advised his counsel accordingly. See Carter v. Bell, 218 O.R.C. § 149.43(A)(2)(a)), outstanding warrants are not F.3d 581, 601 (6th Cir. 2000) (“[N]o Brady violation if the public record. Nevertheless, any distinction is irrelevant – defendant knew or should have known the essential facts while Hicks makes the general allegation that he was deprived permitting him to take advantage of the information in “of the kind of fact-finder to which he [is] constitutionally question . . . .”). Although Hicks claims that the statements entitled[,]” Taylor v. Louisiana, 419 U.S. 522, 526 (1975), were material to his punishment, i.e., that he believed the and references two cases from other jurisdictions indicating death penalty was the appropriate penalty for his crimes, he that the prosecution must disclose prospective jurors’ arrest was not sentenced to death for both murders. Hicks’s belief records to the defense, he cannot demonstrate how this that he would be sentenced to death is also consistent with his prosecutorial impropriety deprived him of a fair trial. expression of remorse during the penalty phase of his trial. Considering the overwhelming evidence of Hicks’s guilt, the Hicks was not denied a fair trial because the result of the fact that no evidence was presented indicating that the proceeding would not have been different. prosecution obtained the records in violation of either state or federal law, his failure to show that the records affected the 2. Use of Confidential Arrest Records jury’s verdict or sentencing recommendation, and his own concession, the prosecution’s conduct was not “so egregious During voir dire, the prosecution used records of as to render [his] trial fundamentally unfair.” Buell v. outstanding warrants and convictions of prospective jurors. Mitchell, 274 F.3d 337, 364 (6th Cir. 2001) (citations Hicks’s counsel raised the issue during voir dire but the omitted); see also Weatherford v. Bursey, 429 U.S. 545, 559 No. 01-3764 Hicks v. Collins 25 26 Hicks v. Collins No. 01-3764

(1977) (“There is no general constitutional right to discovery 4. Prosecution’s Isolated Comments in a criminal case . . . .”). Hicks first complains that, during its opening statement, the 3. Victim Impact Statements prosecution implied his guilt by emphasizing the importance of the indictment. When read in context, the prosecution was Hicks complains of prosecutorial victim impact statements only reading the charges. Even if this was somehow that appealed to the jury’s emotions at both the guilt and improper, it was an isolated statement, the evidence of guilt penalty phases of the trial. Generally, the statements play on was overwhelming, and the trial court gave an instruction that Brandy’s young age, Maxine’s handicap, and the idea that the the indictment was not evidence. See United States v. Bond, murders destroyed a whole family. 10 While the State answers 22 F.3d 662, 668 (6th Cir. 1994) (finding prosecution’s that the Supreme Court in Payne v. Tennessee, 501 U.S. 808, reference to indictment did not imply guilt and that 827 (1991), sanctioned the use of victim impact statements, instruction cured any possible error). Payne simply dealt with the sentencing phase. Nevertheless, this court has approved victim impact evidence during the Hicks next complains that the prosecution told the jury that guilt phase, rather than at sentencing, as an extension of the trial court did not believe his intoxication or insanity Payne. See Cooey v. Coyle, 289 F.3d 882, 921 (6th Cir. defenses. These comments concern the prosecution’s 2002). statements that the trial court would not give an instruction on intoxication/insanity because of the lack of supporting Hicks cites State v. McNeill, 700 N.E.2d 596 (Ohio 1998), evidence. This claim fails for two reasons. First, the Ohio for the proposition that the Ohio Supreme Court has limited Supreme Court has approved these types of statements. See the admission of victim impact evidence to rebuttal of offered State v. Smith, 780 N.E.2d 221, 234 (Ohio 2002) (finding “it mitigation. Since this limitation is an Ohio rule of procedure was permissible for the prosecutor to point out to the jury that rather than a constitutional argument, see id. at 606, it the evidence did not warrant such an instruction” on provides no habeas relief. In any event, there was no intoxication). Second, both intoxication and insanity are prejudice because the statements were not “so pronounced affirmative defenses in Ohio. See State v. Rupp, No. and persistent” that they “permeate[d] the entire atmosphere CA2001-06-135, 2002 WL 517968, at *6 (Ohio Ct. App. Apr. of the trial . . . .” Pritchett v. Pitcher, 117 F.3d 959, 964 (6th 8, 2002) (intoxication);11 State v. Filiaggi, 714 N.E.2d 867, Cir.1997). The statements were isolated, not extensive, and 878 (Ohio 1999) (insanity). Even if the statements the proof of guilt was overwhelming. improperly intimated that the trial court believed that the affirmative defenses were meritless, see United States v. Sullivan, 919 F.2d 1403, 1425 (10th Cir. 1990), they came during the guilt phase. Thus, even if improper, the comments regarding the intoxication/insanity instruction were not prejudicial since the evidence of guilt was overwhelming. 10 During the trial, the prosecution referred to “Little Brandy Green” as being five years old, her pa rrot named “Pierre,” and to Maxine as “a 11 cripp le.” During closing argument, the prosecution brought up that Hicks Although Rupp explained that voluntary intoxication is no longer “destroyed an entire family” and invited the jury to imagine what went an affirmative defense, it was available as an affirmative defense on the through B randy’s mind. date o f Hicks’s offenses. See sup ra, n.5. No. 01-3764 Hicks v. Collins 27 28 Hicks v. Collins No. 01-3764

Hicks also complains that the prosecution suggested that authorizing the death penalty, and (3) “fate, God, a deity or his defense counsel had “no doubt” that he was guilty and that something who has determined that there will be a just they knew he committed these “very dastardly acts.” While punishment for this man.” Caldwell stands for the it is generally improper for the prosecution to imply that proposition that the jury should not feel less responsible, or defense counsel thinks the defendant is guilty, see generally more free to err, because of a belief that its decision to impose Gregory G. Sarno, Annotation, Propriety and Prejudicial death will not have effect unless others later confirm the Effect of Prosecutor’s Argument Giving Jury Impression that decision. Here, all three of the complained sources have to do Defense Counsel Believes Accused Guilty, 89 A.L.R.3d 263 with previous authorization, not further review or (1979), defense counsel did say “the evidence is going to confirmation as in Caldwell. show . . . he committed these dastardly acts.” Thus, the claim fails. Nevertheless, the third source, “God,” is problematic on separate religious grounds. Courts universally condemn 5. Additional Comments religious injections. Sandoval v. Calderon, 241 F.3d 765, 777 (9th Cir. 2001). However, again, the prosecutor’s reference Hicks’s claim that the prosecution improperly brought was one isolated statement and it is doubtful a jury would attention to the fact that his mitigation statement was unsworn have felt a diminished responsibility by an ambiguous fails because the prosecution may properly comment that a reference to “fate, God, a deity or something.” Plus, the court defendant’s mitigation statement is unsworn. DePew v. gave the standard instruction that what the lawyers say is not Anderson, 311 F.3d 742, 745 (6th Cir. 2002). Hicks also evidence. See Bennett v. Angelone, 92 F.3d 1336, 1346-47 complains that, during voir dire, the State miscast the jury (4th Cir. 1996) (finding lack of prejudice because of standard decision as only a recommendation, causing the jury to think instruction). This is not a case where the prosecutor quoted it had a watered-down role in imposing death in violation of at length from Scripture about God mandating death. See Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985) Sandoval, 241 F.3d at 775-80. There was no prejudice. (holding prosecutor’s argument that jury’s decision was not final because of appellate review was improper because it is Hicks further maintains that the prosecution, during closing “constitutionally impermissible to rest a death sentence on a argument, reviewed all mitigating factors listed in the statute, determination made by a sentencer who has been led to including those not raised by the defense. This was improper, believe that the responsibility for determining the as we have held that mitigation issues not brought up by the appropriateness of the defendant’s death rests elsewhere”). defense cannot be brought up by the State because it Since Ohio law requires a separate, post-recommendation impermissibly focuses the attention on the absence of finding by the trial judge confirming the jury's sentence, this mitigating factors. Combs, 205 F.3d at 292. While it may be court has held that casting the jury’s decision as a one of the more meritorious of all Hicks’s claims, it fails for “recommendation” is not an inaccurate statement of Ohio law lack of prejudice. It does not appear that any court has ever and therefore does not violate Caldwell. Coleman, 268 F.3d found prejudice on a Combs claim. Moreover, the at 436. prosecution simply laid out all the mitigating factors and argued why they did not apply. The prosecution did not Similarly, Hicks charges the prosecution violated Caldwell “mischaracterize[] a potentially mitigating factor as an by identifying three sources of responsibility for Hicks’s aggravating factor . . . .” Turner v. Calderon, 281 F.3d 851, death sentence: (1) Hicks himself, (2) the people of Ohio for 870 (9th Cir. 2002). “Given the particularly savage nature” No. 01-3764 Hicks v. Collins 29 30 Hicks v. Collins No. 01-3764

of these murders and “the few mitigating factors presented _____________________________________________ by” Hicks, there was an “overwhelming balance of valid aggravating evidence” and therefore no reasonable possibility CONCURRING IN PART, DISSENTING IN PART that the Combs violation affected the penalty verdict. See id. _____________________________________________ at 869-70. CLAY, Circuit Judge, concurring in part and dissenting in Last, Hicks complains that the State impermissibly turned part. Contrary to the majority’s disposition, prosecutorial the nature of the crime into an aggravating factor. Although misconduct in the state court trial should entitle Petitioner to the prosecution “may properly refer to the nature and a new mitigation phase trial.1 Due to the overwhelming circumstances of the offense, it is improper to characterize evidence of guilt, Petitioner is not entitled to a new guilt that evidence as a nonstatutory aggravating circumstance.” phase trial. I will first explain how the prosecution made Combs, 205 F.3d at 292. Despite Hicks’s claim, as the numerous statements that were improper on various separate prosecution never told the jury that it could consider the grounds, and secondly will explain why this was prejudicial. nature of the crime as an aggravating factor, this claim fails. I. 6. Peremptory Strikes The prosecution repeatedly violated three rules during the Hicks finally argues that the prosecution’s use of closing argument of the guilt phase of the trial–which will be peremptory challenges to exclude jurors who opposed the made clear after the applicable rules are set forth. death penalty denied him an impartial jury. This claim is without merit because Hicks confuses those cases where First, this Court has stated that “appeals to the jury to act as jurors were improperly stricken for cause. As long as not the community conscience” are per se impermissible, when based on race or gender, peremptory challenges are proper. “calculated to incite the passions and prejudices of the Dennis v. Mitchell, 354 F.3d 511, 525 (6th Cir. 2003) jurors.” United States v. Solivan, 937 F.2d 1146, 1151 (6th (upholding peremptory challenges based on opposition to Cir. 1991). The prosecution has a right to cast the defendant death penalty). as a villain, but the prosecution may not pressure the jury to uphold its role as righteous executioners–and the prosecution III. CONCLUSION is strictly forbidden from suggesting to the jury that harsh treatment of one particular defendant will help to solve a For the foregoing reasons, the judgment of the district court larger societal problem. The specific societal issue in Solivan is AFFIRMED. was the use of drugs. Second, under Darden v. Wainwright, 477 U.S. 168, 179-81 (1986), the prosecution is prohibited from arguing for the

1 Because I believe that prosecutorial misconduct is the dispositive issue, I do not take a position on any of the other issues raised in this case, except to say that no issu e warrants a ne w guilt phase trial. No. 01-3764 Hicks v. Collins 31 32 Hicks v. Collins No. 01-3764

death penalty during the guilt phase of the trial. THE COURT: This Court leaves a lot of latitude in final Commingling the guilt phase with the capital sentencing argument. The jury knows what the evidence is and the question encourages the jury to view the case as a single Court will instruct the jury on the law. Proceed. entity; in a case, such as this one, with overwhelming evidence of guilt, the jury is discouraged from drawing a MR. CROWE: . . . We all said the death penalty serves distinction between its guilt phase trial verdict and its a purpose. Some of you have said retribution is a valid sentencing recommendation. The prosecutor gains an unfair reason, some of you said deterrent.[3] I ask you, ladies advantage by getting a head start on his argument for the and gentlemen, it is time you sent a message to the death penalty, which causes the jury2 to enter the mitigation community. That this is no excuse. phase of the trial with preconceptions as to sentencing. MR. RUEGER: Judge, I object to that this is highly Third, when addressing the jury, “[t]he prosecutor has a improper and I have to make a motion for a mistrial. duty not to misrepresent the law . . . .” Hung Thanh Le v. Mullin, 311 F.3d 1002, 1022 (10th Cir. 2002); see also United THE COURT: The objection is sustained. The motion States v. Ollivierre, No. 03-4802, 2004 U.S. App. LEXIS for a mistrial is denied. 16681, at *12 (4th Cir. Aug. 13, 2004) (published). Proceed, Mr. Crowe.

During the closing argument of the guilt phase of the trial, MR. CROWE: Consider deterrents [sic–deterrence] . . . these three rules were violated continually and to an extreme when you think about cocaine, the devil the cocaine. degree. In numerous instances in the closing argument of the guilt phase trial, prosecuting attorney Claude N. Crowe (J.A. at 2779-84.) repeatedly, and over objection, argued for a death sentence, pressuring the jury to serve as a community conscience by Crowe’s statements here urged the jury to recommend a sentencing Petitioner to death, to send a message to the death sentence for the purpose of “sen[ding] a message to the community regarding the larger societal problem of drug use. community” that drug use will not be tolerated, i.e., a message of “deterrence” regarding “the devil cocaine.” Early in the closing argument of the guilt phase trial, Crowe Crowe urged the jury to “sen[d] a message to the began arguing that a death sentence would send a message to community,” by “tak[ing] [Petitioner’s] life.” Crowe was not the community that would deter cocaine use: asking the jury to send a message that would deter murder; he was not arguing that sentencing Petitioner to death would MR. CROWE: We are trying to take this man’s life. send any general message of deterrence to potential murderers, whose possible crimes may involve vastly MR. RUEGER [HICKS’ COUNSEL]: Objection, your different types of victims, motivations, and circumstances. Honor, that has no place in this particular matter. What Crowe wanted was a message that would deter cocaine use. Sentencing a cocaine user to death, for a murder that was inextricably tied to cocaine use–Petitioner was intoxicated by 2 The same jury serves in both the guilt and sentencing phases. Oh io Rev. Code § 2929.03(D)(2) (“the trial jury” is responsible for capital 3 sentencing recommendations). The prosecution referenced voir dire, here. No. 01-3764 Hicks v. Collins 33 34 Hicks v. Collins No. 01-3764

cocaine at the time of both murders, and the first murder was were drug crimes. By contrast, in the instant case, Petitioner motivated by the desire to steal money that would be used to was not charged with any drug offense. Crowe’s deterrence buy more cocaine–would “sen[d] a message to the argument asked the jury to treat Petitioner harshly, so as to community” that the penalties for cocaine use can be send a message that would deter cocaine use; this request to extremely severe. This is the “deterrence” that Crowe clearly impose a harsh sentence based upon cocaine use carried with referenced, when he said: “Consider deterrents it the necessary and obvious implication that under Ohio law [sic–deterrence] . . . when you think about cocaine, the devil a jury is authorized to consider drug use as an aggravating the cocaine.” factor in sentencing for a capital crime. This implication was patently false. Under Ohio law, the jury is not permitted to Crowe’s statements regarding sending a message to deter consider drug use as an aggravating factor in capital cocaine use were highly improper. In Solivan, this Court sentencing. Ohio’s capital sentencing scheme contains a remanded the case for a new trial, based upon the prosecutor’s finite list of aggravating factors, and cocaine use (or the use similar drug deterrence argument. In that case, the prosecutor of other drugs or alcohol) is not one of them. Ohio Rev. Code argued, in his closing statement, “I'm asking you to tell her § 2929.04(A). Crowe misrepresented the law to the jury, by and all of the other drug dealers like her—(defense counsel's indicating that a death sentence could be justified, in part, by objection and Court's response omitted)—[t]hat we don't Petitioner’s use of cocaine. want that stuff in Northern Kentucky and that anybody who brings that stuff in Northern Kentucky . . . .” 937 F.2d at This misrepresentation of Ohio law was extensive. Crowe 1148 (emphasis in original). Crowe’s statements about continually attempted to draw the improper, unfounded addressing the community-level problem of drug use were implication that cocaine use can be an aggravating factor in directly in violation of Solivan. If Crowe’s statements were capital sentencing. Later in the closing argument of the guilt slightly less outrageous than those in Solivan, then Crowe’s phase trial, Crowe again repeatedly referenced the jury’s rhetoric was also far more impassioned, referencing “the devil alleged duty to send Petitioner to death, at least in part due to cocaine.” Here, as in Solivan, the attempt to use the particular his drug use: case before the jury to address the larger societal problem of drug use constituted “an appeal wholly irrelevant to any facts I don’t want there to be any question in your mind what or issues in the case, the purpose and effect of which could your duty is in this case. There was no question in his have only been to arouse passion and prejudice.” Id. at 1151 mind what he wanted the result to be [in committing the (characterizing Viereck v. United States, 318 U.S. 236, 237-38 murders]. And I tell you, ladies and gentlemen, he (1943)). forfeited his right to life at that point in time. All for devil cocaine. The devil cocaine is not a defense. . . . In improperly urging the jury to act as the community conscience by using this particular case to promote As difficult as it may be to face what must be done in this “deterrence” of cocaine use, Crowe misrepresented the law to case . . . . the jury. In Solivan, the prosecutor’s comments were improper solely because they urged the jury to serve as the .... community conscience. But the comments in Solivan did not misstate the law–the jury was authorized to punish the The people in this community have the right to expect defendant for drug trafficking because the charged offenses that you will do your duty. No. 01-3764 Hicks v. Collins 35 36 Hicks v. Collins No. 01-3764

(J.A. at 2788-92.) Crowe’s breaches of the rules appear to fit together as part of the larger plan. Crowe was improperly arguing that “the devil cocaine” could be considered as a reason for the jury to conclude that Crowe characterized the central issue in this case as being Petitioner “forfeited his right to life.” Crowe may have tried that of cocaine use; cocaine was the aggravating circumstance to clean up his language by mentioning that cocaine that could convince the jury to recommend a death sentence. intoxication is not a defense.4 But by the time he said this it During the closing argument of the guilt phase trial, when was too late–Crowe had just finished drawing the link Crowe began to refute the cocaine defense, Crowe between cocaine use and the death sentence. Moreover, soon characterized Petitioner’s mindset as follows: “The most after referencing the fact that cocaine intoxication was not a important thing is craving for more cocaine. Well, that is defense, Crowe returned to his message that a death sentence right. The most important thing in his life is the craving of was appropriate–urging jurors to do “what must be done,” cocaine and not the well being of other human beings.” (J.A. their “duty,” even though it would be “difficult.” Needless to at 2788.) These comments did not refute the defense of say, Crowe was urging jurors to recommend a death sentence. cocaine intoxication. If anything, the comments supported (There is nothing “difficult” about merely finding a defendant the defense of cocaine intoxication by twice referring to the guilty of crimes to which he had confessed.) This intimation “craving” of cocaine. Such language could have suggested that the “devil cocaine” could be considered as a reason to that Petitioner had lost control at the time of the crimes and recommend a death sentence was a misrepresentation of Ohio lacked the requisite mens rea. Clearly, Crowe was not law. discussing guilt; he was trying to convince the jury to recommend a death sentence. When Crowe said, “The most Crowe used this particular case as a vehicle to further the important thing in his life is the craving of cocaine and not the larger social agenda of drug deterrence. Based upon Crowe’s well being of other human beings,” this statement was not arguments, the guilt phase was not about determining limited to Petitioner; the statement was an indictment of Petitioner’s guilt–it was about something more, i.e., achieving cocaine users, generally. In Crowe’s view, the use of cocaine a death sentence. And the sentence was not solely about was “a conscious decision which they make.” (J.A. 2783-84) punishment–it was about something more, i.e., condemnation (emphasis added). “They”–cocaine users, generally–were on of “the devil cocaine.” Because Crowe obviously saw his trial, not just Petitioner. ultimate goal of deterring cocaine use as extremely important, the ends justified the means, resulting in a misrepresentation Crowe saw the case quite clearly. This was the opportunity of the law, i.e., Crowe’s encouraging the jury to consider to “sen[d] a message” to potential users of “the devil cocaine use as an aggravating factor in sentencing. Each of cocaine,” that “they” would be held accountable. Drug convictions do not carry death sentences; thus they offer less of an opportunity to make an example of a defendant. But this case was different. This was a referendum. The next 4 time a potential user felt a “craving” for cocaine, he would Crowe was, of course , entitled to refute the argument that cocaine intoxication was a defense; Crowe was entitled to argue that the effects of think twice before making the “conscious decision” to use the cocaine use had not diminished Petitioner’s capacity to act purposely, drug–he would realize that the drug had caused Petitioner to with intent, under the definition of aggravated murder. Ohio Rev. Code “forfeit[] his right to life.” The goal of the trial was not to §§ 2901.22(A ) (definition of “purpo sely”), 2903.01(A) (mens rea for aggravated murder). find the facts but rather to “try[] to take [Petitioner’s] life,” in No. 01-3764 Hicks v. Collins 37 38 Hicks v. Collins No. 01-3764

the service of a higher purpose–“deterrence” of cocaine use. II. The “community ha[d] the right to expect that” jurors would do their solemn “duty,” to help win the war on drugs. The prosecution’s improper statements were prejudicial. The standard for prejudice is whether the improper remarks Crowe’s pervasive message was highly improper in were “harmless beyond a reasonable doubt,” i.e., whether attempting to invoke the community conscience to such a there is a “reasonable possibility” that the error might have degree. But what made the conduct especially egregious was contributed to the result being challenged. Solivan, 937 F.2d that Crowe overstepped the boundary between the guilt and at 1155. mitigation phases by encouraging the jury to prejudge the sentencing decision before Petitioner’s attorney had the There is no need to answer the question of whether any of opportunity to address the penalty issue. By so doing, Crowe the prosecution’s improper remarks might have been pressured the jury to ignore governing Ohio law under which prejudicial, taken individually. Individual instances of drug use cannot be considered as an aggravating factor in prosecutorial misconduct can be cumulated.5 (Actually, capital sentencing. Crowe violated certain clear, fundamental different types of constitutional errors can even be cumulated, rules that constrain prosecutorial advocacy. in a capital case;6 but the prosecutorial misconduct issue in the instant case need not rely on that rule.) The attempt to invoke improper considerations did not end with the guilt phase. During the closing argument of the In DePew v. Anderson, in cumulating numerous errors to penalty phase, Crowe’s colleague, John J. Arnold stated, “It vacate a death sentence, this Court made clear that in capital is the people of the State of Ohio who have determined that cases it is more difficult for the prosecution to demonstrate a in a case such as this death may be an appropriate decision. lack of prejudice: And finally I suppose it is – I don’t know if you want to call it fate, God, a deity or something who has determined that Members of the Supreme Court have advised us to there will be a just punishment for this man.” (J.A. at 2924.) remember that “death is different”–that “[t]he taking of The majority acknowledges that this violated Petitioner’s life is irrevocable,” so that “[i]t is in capital cases fundamental constitutional rights. Sandoval v. Calderon, 241 especially that the balance of conflicting interests must F.3d at 776 (“In a capital case like this one, the prosecution’s be weighed most heavily in favor of the procedural invocation of higher law or extra-judicial authority violates safeguards of the Bill of Rights,” Reid v. Covert, 354 the Eighth Amendment . . . .”). Taken alone, Arnold’s statement could be overlooked. But the comment must be viewed as part of the prosecution’s improper continuing 5 Lundy v. Camp bell, 888 F.2d 467, 474-75 (6th Cir. 1989) (citing attempt to sermonize about the larger purposes and ideals that Angel v. Overb erg, 682 F.2d 605, 608 (6th C ir. 198 2) (en banc )). See also would be served by Petitioner’s receiving a death sentence. United States v. Young, 470 U.S. 1, 11 (1 985) (“the prosecutor’s remarks, when viewed within the context of the entire trial”), 12 (“the remarks must be examined within the context of the trial to determine whether the prosecutor’s behavior amounted to prejudicial error”).

6 In DePew v. Anderson, constitutional errors that might have been harmless, taken individually, were cumulated by this Court, leading to a reversal of a death sentence. 311 F.3d 742 , 751 (6th Cir. 2002). No. 01-3764 Hicks v. Collins 39 40 Hicks v. Collins No. 01-3764

U.S. 1, 45-46, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957) send a message of deterrence regarding the larger societal (Frankfurter, J., concurring), and that “[i]n death cases problem of illegal drug use. doubts . . . should be resolved in favor of the accused.” Andres v. United States, 333 U.S. 740, 752, 68 S.Ct. 880, The Solivan Court considered the inflammatory nature of 92 L.Ed. 1055 (1948). In Caldwell v. Mississippi, 472 the comments made by the prosecution and also “[b]oth the U.S. 320, 329, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985), timing and the firmness of the trial court’s” curative the Court decided that a prosecutor's prejudicial instruction. 937 F.2d at 1157. The Solivan Court noted that statements in closing argument rendered the death there was a substantial delay before the trial judge offered a sentence invalid. It applied a stricter standard in curative instruction–after the objection, there was a assessing the validity of closing argument in death cases conference between the trial judge and the attorneys for both relying on the Court’s admonition in California v. sides–and there was no firm rebuke by the trial judge. Id. Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 77 Because each of these factors suggested prejudice, the error L.Ed.2d 1171 (1983), that under the Eighth Amendment could not be deemed harmless. Id. In the instant case, there “the qualitative difference of death from all other were never any curative instructions; after sustaining an punishments requires a correspondingly greater degree of objection regarding Crowe’s call for the jury to “sen[d] a scrutiny in capital sentencing determinations.” message to the community,” the trial judge simply allowed Crowe to proceed with his closing argument. Additionally, 311 F.3d 742, 751 (6th Cir. 2002). as explained above, in the instant case–but not in Solivan–the prosecutor misstated the law (by suggesting that drug use Under the heightened scrutiny in a capital case that DePew could factor into the sentencing recommendation). Finally, requires, the prosecution’s improper statements prove Solivan was not a capital case; thus, DePew’s heightened prejudicial when viewed cumulatively. There is a reasonable scrutiny of prejudice in a capital case was not applicable in possibility that the jury’s sentencing recommendation was Solivan. influenced by the improper statements; this can be demonstrated by virtue of comparison with Solivan. Overall, then, there is nothing in Solivan that would weigh more strongly in favor of post-conviction relief than the In Solivan, this Court reversed convictions and sentence circumstances in the instant case. And at least four factors and remanded the case for new trial because improper suggest prejudice more strongly in the instant case than in prosecutorial remarks had been prejudicial. A comparison Solivan: (1) the appeals to community conscience were more reveals that, on all accounts, Petitioner’s case for granting a numerous in the instant case than in Solivan; (2) the trial new mitigation phase trial is either comparable to or stronger judge offered no curative instructions in the instant case, as than the argument for a new trial in Solivan. Here, as in opposed to a delayed curative instruction in Solivan; Solivan, the improper remarks were “calculated to incite the (3) unlike Solivan, the instant case involved misrepresentation passions and prejudices of the jury.” 937 F.2d at 1151. In of law to the jury; and (4) unlike Solivan, the instant case is Solivan, there was only one statement appealing to the a capital case. community conscience. In the instant case, as recounted above, there were numerous separate statements appealing to Solivan makes clear that strong evidence of guilt can community conscience. In Solivan, as in the instant case, the provide a reason for a finding that improper prosecutorial prosecution improperly suggested that the jury use the case to No. 01-3764 Hicks v. Collins 41 42 Hicks v. Collins No. 01-3764

statements were harmless. 937 F.2d at 1156.7 Yet this mitigation. The Supreme Court of Ohio pointed out that principle cannot be applied to demonstrate a lack of prejudice Petitioner “turned himself in, waived extradition, and in the instant case. In Solivan, the prosecutorial misconduct cooperated with police. This factor tends to show remorse was so egregious that the conviction–i.e., the jury’s fact- . . . .” State v. Hicks, 538 N.E.2d 1030, 1039, 43 Ohio St. 3d finding–was reversed. In the instant case, where the 72, 80 (Ohio 1989). In addition, contrary to Crowe’s impropriety was worse than in Solivan, for the above- representations to the jury that cocaine use was an mentioned reasons, in sentencing the jury was required not aggravating factor (i.e., Crowe’s deterrence argument), the merely to engage in objective fact-finding but rather to weigh Supreme Court of Ohio considered the cocaine use to be a aggravating and mitigating factors. There is no basis for mitigating factor. Id. (“The possibility that appellant was speculating that the jury’s weighing function was unaffected under the influence of drugs when he killed his victims should by the prosecution’s polemics. be assigned some weight in mitigation.”).8 Also, the Supreme Court of Ohio noted that various other types of mitigation Under Ohio law, the prosecution has “the burden of evidence had been presented, including evidence that proving, by proof beyond a reasonable doubt, that the Petitioner had a learning disability, evidence of Petitioner’s aggravating circumstances the defendant was found guilty of troubled childhood in which his father had possibly been an committing are sufficient to outweigh the factors in mitigation alcoholic, and evidence of Petitioner’s reputation among co- of the imposition of the sentence of death.” Ohio Rev. Code workers as having good character and a strong work ethic. Id. § 2929.03(D)(1). The jury is not permitted to recommend a death sentence unless it “unanimously finds, by proof beyond a reasonable doubt, that the aggravating circumstances the 8 offender was found guilty of committing outweigh the The court consid ered coca ine use to be relevant to at least one of the mitigating factors.” Id. § 2929.03(D)(2). The death penalty mitigation factors. The court may have reasoned that cocaine addiction was “a mental disease or defect” that caused a criminal to “lack[] cannot be imposed in Ohio, unless the jury has given its substantial capa city to appreciate the criminality of the offender's conduct unanimous recommendation. Id. Hence, synthesizing all of or to conform the offend er's cond uct to the requirements of the law.” the applicable standards, all that is needed to show prejudice Ohio Rev. Code § 2929.04 (B)(3). In the alternative, cocaine use could be is the demonstration of a reasonable possibility that, absent considered under the residual catch-all prov ision for mitigating factors. the improper statements, at least one juror would have Id. § 2929.04(B)(7) (“Any other factors that are relevant to the issue of declined to find that the prosecution had proved beyond a whether the offender should be sentence d to d eath” may be con sidered to the extent that they “weigh against the aggravating circumstances”). reasonable doubt that the aggravating factors outweighed the At sentencing, Crowe had the right to refute the argument that mitigating factors. cocaine use should be a strong mitigating factor. But such refutation could only occur after Petitioner’s counsel had made the mitigation The jury was presented with various forms of mitigation argum ent. Instead, Crowe preempted Petitioner’s counsel, by raising the evidence in this case. In its review of the case, the Supreme topic of sentencing during the guilt phase trial, before Petitioner’s counsel had made any mitigation argument. Thus, Crowe’s message could not be Court of Ohio explained that at sentencing Petitioner had interpreted as a rebuttal of a mitigation factor. During the guilt phase presented numerous pieces of evidence that were relevant to trial, Crowe was not refuting the notion that cocaine use provided a justification for a less harsh sentence. Crowe’s guilt phase trial argument as to deterrence was a clear message that the cocaine use was a reason to 7 treat Petitioner more harshly. It was imp roper to m ake this argument, Due to the overwh elming evidence o f guilt, including Petitioner’s because under Ohio law there is no aggravating factor that could possibly police confession, the result of the guilt phase trial need not be disturbed. be construed to include cocaine use. No. 01-3764 Hicks v. Collins 43

In light of the presentation of mitigation evidence, there is no basis for a determination that the prosecution’s extensive improper statements did not influence the jury in a function, the weighing of factors, that is inherently discretionary. To weigh aggravating and mitigating factors, the jury must decide what relative value to assign to each factor. The prosecution’s comments advocated improper values for jurors to use, in their weighing function. Crowe forcefully pushed the jury to value the community’s stake in deterrence of cocaine use, in sentencing a defendant who was not being tried for a drug crime. The trial judge gave no curative instructions to blunt the impact of these improper remarks. Given the extensive nature of Crowe’s improper statements, a conclusion that there was no prejudice here would require more speculation than DePew permits in a capital case. CONCLUSION For the aforementioned reasons, I respectfully dissent as to the issue of prosecutorial misconduct, and I would vacate and remand for a new mitigation phase trial. Due to the overwhelming evidence of guilt, I concur that the improper prosecutorial statements did not prejudice Petitioner in the guilt phase of his trial, and thus I would affirm the district court’s denial of a new guilt phase trial.