State v. Gillard , 78 Ohio St. 3d 548 ( 1997 )

Cook, J.

Given our determination in Gillard II, the tasks remaining in this case include a review of the issue of the alleged conflict of interest of appellant’s trial counsel and our own independent review of the appropriateness and proportionality of the death sentences pursuant to R.C. 2929.05(A). Although appellant challenges his convictions and sentence, these propositions of law present issues beyond the scope of the Gillard II remand and, as such, are beyond the scope of our current review. Further, appellant failed to raise these issues in his 1988 cross-appeal when we affirmed his convictions and remanded the cause to the court of appeals. See Gillard I, supra. These new issues are barred by the doctrine of res judicata and we overrule propositions of law six, nine through thirteen, and fifteen without further consideration. State v. D’Ambrosio (1995), 73 Ohio St.3d 141, 143, 652 N.E.2d 710, 713.

Appellant does raise additional matters that he has not had the prior opportunity to argue and which may not be barred by the doctrine of res judicata. Thus, although they are technically beyond the scope of the remand, we will consider appellant’s challenges to the 1990 “resentencing” hearing of the trial court and to the effectiveness of his appellate counsel.

After the court of appeals affirmed the original death sentence, the appellate court issued a special mandate directing the common pleas court to “carry this judgment into execution.” State v. Gillard (June 25, 1990), Stark App. No. CA-6701, unreported, 1990 WL 94632. The common pleas court, in response to the mandate, held a hearing to set a new execution date, not to “resentence” appellant. At the hearing, the trial court had no authority to reopen the question of whether the appellant should receive the death sentence, and could not receive evidence or reweigh the aggravating circumstances against the mitigating factors. Accordingly, we overrule appellant’s fourteenth proposition of law.

In his seventh proposition of law, appellant claims his appellate counsel in Gillard I was ineffective because only two issues were raised in his cross-appeal. Gillard I, however, was appellant’s second appeal as of right (notably, a claimed appeal as of right). As such, appellant was not entitled to effective assistance of appellate counsel. State v. Buell (1994), 70 Ohio St.3d 1211, 1212, 639 N.E.2d 110.

In this same proposition, appellant also argues that he received ineffective assistance of appellate counsel in the court of appeals’ proceedings on remand from Gillard I because counsel did not attempt to raise issues beyond the scope of the remand. Because counsel appropriately focused on the issues before the court on remand — that court’s independent review of the sentence — we overrule appellant’s seventh proposition of law.¹

We have previously held that R.C. 2929.05 does not require this court to address and discuss, in opinion form, each and every proposition of law raised in a capital case on appeal from the court of appeals. See, e.g., State v. Davis (1996), 76 Ohio St.3d 107, 110, 666 N.E.2d 1099, 1104; State v. Allen (1995), 73 Ohio St.3d 626, 628, 653 N.E.2d 675, 680. We thus address here only those issues that warrant discussion. For the reasons that follow, we find no actual conflict of interest in trial counsel’s representation of appellant and affirm the judgment of the court of appeals as to both the convictions and sentence.

I

CONFLICT OF INTEREST

Appellant contends that his trial counsel, Louis Martinez, labored under an actual conflict of interest because Martinez also represented William A. Gillard, appellant’s brother. Martinez represented William when he pled no contest to and was found guilty of a misdemeanor for illegally discharging a firearm at the crime scene immediately prior to the murders. William was also under investigation by the grand jury during appellant’s trial for his involvement in the murders.

At our direction, the trial court conducted a hearing to determine whether Martinez represented appellant under the cloud of an actual conflict of interest. Appellant presented testimony from three witnesses: Craig Chessler, co-counsel for appellant at trial; Don Wuertz, an investigator employed by Martinez during appellant’s trial; and Charles Kirkwood, a retired professor of law. Martinez was unable to testify at the remand hearing, having suffered a stroke sometime after the trial.

The trial court concluded that Martinez did not represent appellant under an actual conflict of interest. Based on the limited nature of the remand by this court, the court of appeals dismissed appellant’s appeal of the trial court’s findings for lack of jurisdiction. State v. Gillard (Dec. 13, 1995), Stark App. No. 95CA0257, unreported.

A. Procedural Challenges

Appellant initially challenges this court’s exercise of jurisdiction over the trial court’s proceedings on remand absent the court of appeals’ intermediate review. Appellant argues in his first proposition of law that the court of appeals, not this court, has jurisdiction over direct appeals from common pleas courts pursuant to Section 3(B)(2), Article IV of the. Ohio Constitution.² In this case, however, the decision of the trial court on the conflict issue is not returned to this court as “an appeal” from the trial court. This court never relinquished the jurisdiction acquired in Gillard II. By instructing the trial court in Gillard II to “return this cause” to this court, we retained our jurisdiction and remanded only the conflict issue for the limited purpose of conducting an evidentiary hearing. See, also, State v. Berry (1996), 77 Ohio St.3d 1439, 671 N.E.2d 1279 (remand to trial court for competency hearing while retaining jurisdiction over matter); see, generally, 16 Wright, Miller & Cooper, Federal Practice & Procedure (1996) 700, Section 3937.1 (describing and approving federal courts’ use of remand-while-retaining-jurisdiction procedural device). Because appellant had no right to appeal the conflict issue to the court of appeals, we overrule his first proposition of law.

In his second proposition of law, appellant challenges the remedy we fashioned in Gillard II for the trial court’s failure to inquire into the possible conflict of interest during the original trial. Appellant contends that a new trial is the sole remedy for the trial court’s failure to conduct an inquiry into a potential conflict of interest at trial after the trial court has been alerted to one.

In support of his argument, appellant cites Wood v. Georgia (1981), 450 U.S. 261, 272, 101 S.Ct. 1097, 1104, 67 L.Ed.2d 220, 231, fn. 18, where the court stated that the United States Constitution “mandates a reversal when the trial court has failed to make an inquiry even though it ‘knows or reasonably should know that a particular conflict exists.’ ” (Emphasis added.) In Wood, the trial court failed to inquire into a possible conflict of interest after the court was alerted to its potential during a probation revocation hearing. Nonetheless, the Wood court ordered the trial court to “hold a hearing to determine whether the conflict of interest * * * actually existed * * rather than a new revocation hearing. Only “[i]f the court finds that an actual conflict of interest existed” was it to grant a new revocation hearing. 450 U.S. at 273-274, 101 S.Ct. at 1104, 67 L.Ed.2d at 231.

Additionally, the United States Constitution is violated by an actual conflict of interest, not a possible one. Cuyler v. Sullivan (1980), 446 U.S. 335, 348-350, 100 S.Ct. 1708, 1718-1719, 64 L.Ed.2d 333, 346-347; State v. Manross (1988), 40 Ohio St.3d 180, 182, 532 N.E.2d 735, 738. When a possible conflict of interest exists, a defendant is entitled only to an inquiry by the trial court. The trial court’s failure to conduct the inquiry, however, does not transform a possible conflict into an actual one. A retrial for failing to inquire into a possible conflict of interest is premature. Rather, reversal is mandated only if an actual conflict is found. See Brien v. United States (C.A.1, 1982), 695 F.2d 10, 15, fn. 10; United States v. Winkle (C.A.10, 1983), 722 F.2d 605, 611-612; Bonin v. Vasquez (D.C.Cal.1992), 807 F.Supp. 589, 606, fn. 16. Appellant’s second proposition of law is overruled.

In its opinion on the remand, the trial court indicated that it reviewed only parts of the original trial record. Appellant argues in his fifth proposition of law that, as a result, the trial court’s factual findings are unreliable and that we should remand the issue for a complete review of the record. The facts surrounding the alleged conflict of interest were largely undisputed and the trial court did not need to review the entire trial record to properly reach its findings. In any event, whether an actual conflict of interest existed is a mixed question of law and fact, subject to de novo review on appeal. Cuyler, 446 U.S. at 342, 100 S.Ct. at 1715, 64 L.Ed.2d at 342; Winkler v. Keane (C.A.2,1993), 7 F.3d 304, 308. Because the trial court is in a far better position to judge the credibility of the witnesses testifying at the remand hearing, its findings should be accepted unless clearly erroneous. United States v. Gambino (C.A.3, 1988), 864 F.2d 1064, 1071, fn. 3. We find no clear errors in the trial judge’s findings. Appellant’s fifth proposition of law is overruled.

B. Merits

In his third and eighth propositions of law, appellant challenges the trial court’s finding on remand that no actual conflict existed in Martinez’s representation of appellant. In order to establish a Sixth Amendment violation due to a conflict of interest, a defendant who failed to object at trial must demonstrate that an actual conflict of interest adversely affected his lawyer’s performance. Cuyler, 446 U.S. at 348, 100 S.Ct. at 1718, 64 L.Ed.2d at 346-347.

A possible conflict of interest exists where the “ ‘interests of the defendants may diverge at some point so as to place the attorney under inconsistent duties.’ ” (Emphasis added.) State v. Dillon (1995), 74 Ohio St.3d 166, 168, 657 N.E.2d 273, 275-276, quoting Cuyler, 446 U.S. at 356, 100 S.Ct. at 1722, 64 L.Ed.2d at 351-352, fn. 3. It follows, then, that an actual conflict of interest exists if, “ ‘during the course of the representation, the defendants’ interests do diverge with respect to a material factual or legal issue or to a course of action.’ ” (Emphasis added.) Id. at 169, 657 N.E.2d at 276, quoting Cuyler, 446 U.S. at 356, 100 S.Ct. at 1722, 64 L.Ed.2d at 351-352, fn. 3; see, also, Winkler, 7 F.3d at 307. Indeed, we have said that a lawyer represents conflicting interests “when, on behalf of one client, it is his duty to contend for that which duty to another client requires him to oppose.” Manross, 40 Ohio St.3d at 182, 532 N.E.2d at 738.

Appellant contends that an actual conflict of interest in Martinez’s representation of him and his brother, William, is apparent during appellant’s trial because Martinez failed to use the evidence linking William to the murders to argue that William, and not appellant, committed them. Appellant cites the following evidence adduced at trial: William, armed with brass knuckles, attended a New Year’s Eve party at the home of Tim Hendricks. William was evicted from the party after he and another partygoer, Leroy Ensign, got into a bloody fight. William returned to the Hendricks home and fired a gun outside the house minutes before the murders occurred there. William provided a false name to the police when he was apprehended several hours after the murders. When he was apprehended, William’s shirt had blood stains that matched one victim, and his jacket had blood stains that could not be excluded as coming from another victim. William also possessed a bullet matching those found at the crime scene.

To demonstrate an actual conflict of interest based upon what an attorney has failed to do, appellant must show two elements. First, he must demonstrate that “some plausible alternative defense strategy or tactic might have been pursued. He need not show that the alternative defense would necessarily have been successful if it had been used, but that it possessed sufficient substance to be a viable alternative. Second, he must establish that the alternative defense was inherently in conflict with or not undertaken due to the attorney’s other loyalties or interests.” United States v. Fahey (C.A.1, 1985), 769 F.2d 829, 836; see, also, Gambino, 864 F.2d at 1070-1071; Winkler, 7 F.3d at 309.

Martinez, appellant maintains, could not argue that William committed the murders as part of appellant’s defense due to Martinez’s duty to protect William from future prosecution. Martinez’s sole defense strategy was an alibi defense. To this end, appellant and three other witnesses testified that appellant was at a New Year’s Eve party at the home of friends at the time of the murders. Martinez also called William as a defense witness. William denied firing a gun at the crime scene immediately prior to the murders and denied any involvement in the murders. He also denied speaking to or seeing appellant after William’s fight with Ensign.

At the remand hearing, Professor Kirkwood testified that the viable defense Martinez should, but could not, have presented was an alibi and an alternate suspect defense. Under this theory, instead of solely arguing an alibi defense, Martinez should have also argued that William committed the murders. In Kirkwood’s opinion, the circumstantial evidence pointing to William’s involvement made the alternate suspect a viable, plausible defense.

At the remand hearing, appellant also introduced a plea agreement between the. state and William dated two and one-half years after appellant’s trial while William was represented by counsel other than Martinez. According to the agreement, William pled guilty to the aggravated burglary of the Hendricks home, agreed to testify against appellant if appellant were to be retried and, in exchange, received probation for the offense. Appellant argues that the plea agreement demonstrates that the interests of appellant and his brother differed so that any attorney would have used William’s involvement to exculpate appellant.

We disagree. We cannot say either that the alternative defense was Viable or that Martinez’s failure to argue, on behalf of appellant, that William was the “real killer” was due to Martinez’s obligations to William. Although William may have been a plausible suspect, he was not an alternative suspect. Evidence of William’s involvement was not inconsistent with appellant’s guilt, ie., none of the evidence implicating William either negated appellant’s involvement or strengthened his alibi.

To the contrary, the state claimed that both appellant and his brother were involved in the murders. For example, the state presented evidence that William’s fight with Ensign provided appellant with the motive to kill Ensign. Additionally, the state called Ronald Webb, who testified that appellant confessed to him that “I pulled the trigger, and my brother’s taking the fall.”

Moreover, both appellant and his brother were positively identified by the attempted-murder victim, Ronnie Postlethwaite. Postlethwaite testified that he saw William fire the shots outside Hendricks’s house. Twenty minutes later, Postlethwaite heard more than one person enter the house and then heard a shot fired in the kitchen. Soon after, Postlethwaite testified, appellant grabbed his hair from behind, turned his head around and shot him in the temple. Postlethwaite then saw appellant shoot his fiancee, Denise Maxwell, in the head while she slept on the couch. While he lay wounded at the scene, Postlethwaite identified appellant to the police as the shooter. Naturally, Postlethwaite’s identification testimony and his credibility were crucial to the interests of both appellant and his brother.

If Martinez emphasized William’s involvement in the murders, he would have conceded that the state’s theory was in part correct. For example, by blaming William for the murders, Martinez risked substantiating Webb’s testimony that William was “taking the fall” for appellant. Likewise, taking the position that William fired shots outside the murder scene that night would bolster the general credibility of Postlethwaite, the state’s sole identifying witness. If the jury believed the portion of Postlethwaite’s testimony identifying appellant as the gunman, evidence of William’s involvement would not assist appellant’s defense. On the other hand, if the jury believed William’s testimony that he did not fire shots on the night of the murders, the jury would have necessarily rejected Postlethwaite’s identification of William and would be more likely to reject his identification of appellant. By attacking the state’s evidence implicating William, Martinez undermined the state’s case against appellant.

There is “no conflict of interest adversely affecting the attorney’s performance at trial if an attorney at trial does not raise a defense on behalf of his client because to do so is not in that client’s interest even though it is also in the interest of another client that it not be raised. To the contrary, that is a coincidence of interests.” Gambino, 864 F.2d at 1071. We find here that Martinez labored under a coincidence of interests rather than an actual conflict of interests.

Contrary to appellant’s assertions in his fourth proposition of law, neither the trial court nor this court engage in harmless error review by discussing the merits of Martinez’s strategy. Discussion of the merits of Martinez’s strategy is relevant to whether an actual conflict adversely affected Martinez’s performance at trial. Appellant placed the merits of Martinez’s strategy in issue by presenting Kirkwood’s testimony and by arguing to this court that “[t]he impact of the conflict of interest was not in the presentation of the defense, but rather in the initial selection of the defense to present.”

In accordance with the above, we overrule appellant’s third, fourth, and eighth propositions of law.

II

INDEPENDENT REVIEW

Pursuant to R.C. 2929.05, we independently review appellant’s death sentence to determine whether the evidence supports the jury’s finding of aggravating circumstances; to reweigh the aggravating circumstances against the mitigating factors; and to determine whether the death sentence is proportionate compared to other similar cases. For the reasons that follow, we affirm appellant’s sentence.

A. Aggravating Circumstances v. Mitigating Factors

Appellant’s four convictions of aggravated murder must merge into two, since he killed two victims. State v. Huertas (1990), 51 Ohio St.3d 22, 28, 553 N.E.2d 1058, 1066. Each count has two aggravating circumstances: multiple murder, R.C. 2929.04(A)(5), and murder during the commission of an aggravated burglary, R.C. 2929.04(A)(7). As we noted in both Gillard I and Gillard II, there is overwhelming evidence supporting appellant’s guilt of these offenses. 40 Ohio St.3d at 229, 533 N.E.2d at 276; 64 Ohio St.3d at 312, 595 N.E.2d at 883.

Appellant presented no evidence during the penalty phase and, instead, argued residual doubt as the sole mitigating factor. After a review of the record, we find that the evidence of appellant’s guilt is overwhelming and convincing. We conclude that residual doubt is not an important mitigating factor in this case.

Postlethwaite positively identified appellant as Maxwell’s killer as Postlethwaite lay wounded on the floor at the crime scene. Appellant attempts to discredit Postlethwaite’s identification by noting the following: the only light by which Postlethwaite was able to see came from another room; Postlethwaite drank eight small glasses of beer at the party prior to the murders; and Postlethwaite’s right eye was partly blinded by the shooting. However, Postlethwaite retained 20/20 vision in his left eye and saw appellant’s face before he was shot. Moreover, Postlethwaite knew both appellant and his brother.

Appellant also refers to the possible involvement of his brother, William, and Tim Foehrenbach in the murders. The evidence does not show with complete certainty that appellant shot Ensign himself, and here, residual doubt is arguably entitled to some weight. The evidence clearly shows, however, that appellant was the principal offender in Maxwell’s murder. Ensign and Maxwell were also shot by the same gun, raising a strong inference that the same perpetrator shot both. Appellant’s actions after the murders also corroborate his guilt. Appellant fled to West Virginia, where he altered his appearance and used the alias “Butch Johnson.” Appellant also confessed to Ronald Webb that he “pulled the trigger.” Although appellant challenges Webb’s credibility, we are unconvinced that the record supports his arguments.

The trial court found that the guilt-phase evidence raised three other mitigating factors: provocation, R.C. 2929.04(B)(2); lack of a substantial history of criminal convictions, R.C. 2929.04(B)(5); and appellant’s consumption of alcohol before the killings, R.C. 2929.04(B)(7). The trial court assigned little weight to provocation in the Ensign murder and little weight to the other two factors but gave provocation no weight in the Maxwell murder.

We, too, assign little weight to appellant’s alcohol consumption and lack of a substantial criminal history. We also find that provocation is entitled to no weight in either the Maxwell or Ensign murders. There was some testimony that Ensign started the fight with William. Nonetheless, Ensign inflicted no direct injury on appellant and Maxwell did not provoke appellant in any way.

We also consider that appellant is the oldest of thirteen children and the father of two children. He is a high school graduate, has been self-employed as an auto mechanic, and has worked on pit crews in auto and motorcycle races. Ironically, appellant cites his close family ties as evidence of mitigation, since loyalty to his brother is one of the alleged motives for his crimes.

Appellant raises, in his sixteenth and eighteenth propositions of law, the question of whether alleged legal errors in the trial or sentencing proceedings are R.C. 2929.04(B)(7) mitigating factors. We conclude that they are not.

Generally, prejudicial errors at trial will require reversal of the conviction or sentence, rendering independent review of the appropriateness and proportionality of the death sentence moot. Similarly, errors that are waived, but amount to plain error or ineffective assistance of counsel, will require reversal of the conviction or sentence and any independent review would be moot. Under appellant’s argument, the only trial errors that would be considered in a reviewing court’s independent review are harmless errors or errors waived by effective counsel that are not plain errors. We see no reason why these types of errors, committed during a fundamentally fair trial of a defendant represented by competent counsel, should be considered mitigating factors. Thus, we hold that trial errors that are either harmless or waived by effective counsel are not mitigating factors under R.C. 2929.04(B)(7).

In weighing the mitigating factors against the aggravating circumstances, we are mindful that “[w]hen a capital defendant is convicted of more than one count of aggravated murder, * * * [o]nly the aggravating circumstances related to a given count may be considered in assessing the penalty for that count.” State v. Cooey (1989), 46 Ohio St.3d 20, 544 N.E.2d 895, paragraph three of the syllabus. We find that the aggravating circumstances in the Maxwell murder outweigh the mitigating factors and that the aggravating circumstances in the Ensign murder outweigh the mitigating factors beyond a reasonable doubt.

B. Proportionality

We conclude that the death penalty is appropriate and proportionate for both aggravated murder convictions. The sentence is appropriate when compared with similar “course of conduct” cases involving the purposeful killing, or attempt to kill, two people. See State v. Brooks (1986), 25 Ohio St.3d 144, 25 OBR 190, 495 N.E.2d 407; State v. Frazier (1991), 61 Ohio St.3d 247, 574 N.E.2d 483; State v. Combs (1991), 62 Ohio St.3d 278, 581 N.E.2d 1071; State v. Davis (1991), 62 Ohio St.3d 326, 581 N.E.2d 1362. The sentence is also proportionate when compared with other aggravated burglary-murder cases. See State v. Wiles (1991), 59 Ohio St.3d 71, 571 N.E.2d 97; State v. Waddy (1992), 63 Ohio St.3d 424, 588 N.E.2d 819. We reject appellant’s arguments that his sentence is disproportionate to the sentences received by William Gillard and Tim Foehrenbach. The cases are not similar because neither of these defendants was tried for aggravated murder. Appellant’s seventeenth proposition of law is overruled.

C. Constitutionality

In his final proposition of law, appellant challenges the constitutionality of Ohio’s death-penalty statutory framework. We have consistently held that Ohio’s death penalty scheme is constitutional and we continue to adhere to that position. See State v. Awkal (1996), 76 Ohio St.3d 324, 337-338, 667 N.E.2d 960, 972; State v. Garner (1995), 74 Ohio St.3d 49, 65, 656 N.E.2d 623, 638.

For the foregoing reasons, we affirm the trial court’s finding of no actual conflict, and affirm the convictions and the death penalty sentence.

Judgment affirmed.

Douglas, F.E. Sweeney and Pfeifer, JJ., concur. Resnick, J., concurs in judgment only. Moyer, C.J., and Lundberg Stratton, J., dissent.

1 . Appellant makes a related argument in his nineteenth proposition of law that he was denied “meaningful” appellate review because the court of appeals neither considered the mitigating factors nor independently reweighed the aggravating circumstances and mitigating factors. This court’s independent review, however, will correct any errors by. the court of appeals. State v. Clark (1988), 38 Ohio St.3d 252, 263, 527 N.E.2d 844, 856.

2 . Section 3(B)(2), Article IV of the Ohio Constitution states:

“Courts of appeals shall have such jurisdiction as may be provided by law to review and affirm, modify, or reverse judgments or final orders of the courts of record inferior to the court of appeals within the district and shall have such appellate jurisdiction as may be provided by law to review and affirm, modify, or reverse final orders or actions of administrative officers or agencies.”