State v. Jackson

[Cite as State v. Jackson, 2017-Ohio-2651.]
Court of Appeals of Ohio
EIGHTH APPELLATE DISTRICT
COUNTY OF CUYAHOGA
JOURNAL ENTRY AND OPINION
No. 104132
STATE OF OHIO
PLAINTIFF-APPELLEE
vs.
JEREMIAH JACKSON
DEFENDANT-APPELLANT
JUDGMENT:
AFFIRMED
Civil Appeal from the
Cuyahoga County Court of Common Pleas
Case No. CR-09-532145-A
BEFORE: E.T. Gallagher, J., Keough, A.J., and Stewart, J.
RELEASED AND JOURNALIZED: May 4, 2017
ATTORNEYS FOR APPELLANT
Timothy Young
Ohio Public Defender
BY: Isa Mauch
Daniel Jones
Assistant Ohio Public Defenders
250 East Broad Street, Suite 1400
Columbus, Ohio 43215
ATTORNEYS FOR APPELLEE
Michael C. O’Malley
Cuyahoga County Prosecutor
BY: Mary McGrath
Saleh Awadallah
Assistant Prosecuting Attorneys
The Justice Center, 8th Floor
1200 Ontario Street
Cleveland, Ohio 44113
EILEEN T. GALLAGHER, J.:
{¶1} Defendant-appellant, Jeremiah Jackson (“Jackson”), appeals from the
judgment of the common pleas court dismissing his petition for postconviction relief
without a hearing. He raises the following assignments of error for review:
1. The trial court erred by applying the doctrine of res judicata to bar
Jackson’s sixth and eighth through twelfth grounds for relief.
2. The trial court erred in failing to allow discovery and in failing to fund
needed experts on intellectual disabilities and sex offender status issues.
3. Jackson’s claims for postconviction relief present sufficient operative
facts to merit relief or, at the minimum, an evidentiary hearing.
4. The trial court erred in dismissing Jackson’s postconviction petition
when he presented sufficient operative facts to merit relief, or at a
minimum, an evidentiary hearing, on the ineffective assistance of counsel
claims.
5. The trial court erred in dismissing Jackson’s constitutional claim of
disproportionate capital sentencing by race, where the facts and statistics
offer full support for these assertions.
6. The trial court erred when it dismissed Jackson’s constitutional claim
that his waiver of jury trial was not knowing, voluntary, and intelligent.
7. The trial court displayed prejudicial bias against Jackson’s trial defense
counsel, thus violating his constitutional right to a fair trial conducted
before an unbiased tribunal.
8. The trial court erred in dismissing Jackson’s tenth and eleventh claims
for relief, when he presented sufficient operative facts to merit relief or, at
the minimum, an evidentiary hearing.
9. The trial court erred in dismissing Jackson’s thirteenth claim for relief, when he
presented sufficient operative facts to merit relief or, at a minimum, an evidentiary
hearing.
10. The trial court erred in dismissing Jackson’s fourteenth claim for relief, when the
cumulative effect of all other errors should have entitled him to relief.
{¶2} After careful review of the record and relevant case law, we affirm the trial court’s
judgment.
I. Procedural History
{¶3} The underlying criminal case against Jackson arises from the aggravated murder of Tracy
Pickryl and the commission of other felony offenses during a 16-day crime spree in Cuyahoga, Erie,
and Lorain counties. In December 2009, Jackson was named in a 42-count indictment, charging him
with counts of aggravated murder, attempted murder, felonious assault, theft, robbery, aggravated
robbery, and kidnapping. Each of these aggravated-murder counts included death-penalty
specifications.
{¶4} In March 2010, Jackson executed a jury waiver and opted for a trial before a three-judge
panel. At the conclusion of trial, the three-judge panel found Jackson guilty of the aggravated murder
counts and the accompanying death-penalty specifications. The panel also found Jackson guilty of all
noncapital counts and the accompanying gun specifications. Following a mitigation hearing, the panel
sentenced Jackson to death.
{¶5} In June 2010, Jackson appealed his convictions and death sentence to the
Ohio Supreme Court. In his appeal, Jackson raised 14 propositions of law. The
principal issues for review included the trial court’s decision to conduct a limited hearing
regarding an issue under Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d
335 (2002), the validity of the jury waiver, the jurisdiction of the Cuyahoga County Grand
Jury over offenses occurring in different counties, the sufficiency of the indictment,
prosecutorial misconduct during the penalty phase, various claims of ineffective
assistance of counsel, and the constitutionality of Ohio’s death penalty.
{¶6} In September 2014, the Ohio Supreme Court affirmed Jackson’s convictions
and sentence of death. State v. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23
N.E.3d 1023, reconsideration denied, State v. Jackson, 142 Ohio St.3d 1425,
2015-Ohio-1353, 28 N.E.3d 123. The United States Supreme Court denied certiorari.
{¶7} While his appeal was pending before the Ohio Supreme Court, Jackson filed
a petition for postconviction relief, which set forth 14 grounds for relief. On this same
date, Jackson filed a motion for discovery and a motion for funds to hire an expert on
intellectual disabilities and a sex offender expert. In May 2011, the trial court denied
Jackson’s motion for discovery and motion for funds for experts. In January 2016, the
trial court dismissed Jackson’s postconviction petition without a hearing, stating in
pertinent part:
After careful review of the [record] and consideration of each of defendant’s 14
asserted grounds for relief, the court hereby dismisses the petition for post[-]conviction
relief without a hearing. No hearing is granted because the petition and its
accompanying materials and the entire record of the proceedings show that defendant is
not entitled to relief under any of the grounds set for relief. Defendant has failed to
sustain his burden to provide the court with evidentiary documents containing sufficient
operative facts to demonstrate his entitlement to relief under the petition.
{¶8} Jackson now appeals from the trial court’s judgment.
II. Law and Analysis
{¶9} For the purposes of judicial clarity, we review Jackson’s assignments of error out of order.
A. Motion for Further Discovery and Expert Funds
{¶10} In his second assignment of error, Jackson argues the trial court erred by failing to allow
further discovery and by failing to fund needed experts on intellectual disabilities and sex offender
status issues. Jackson contends that “such relevant evidence” would have assisted him in supporting
his petition for postconviction relief.
{¶11} The long-standing rule in Ohio is that a convicted criminal defendant has no
right to additional or new discovery, whether under Crim.R. 16 or any other rule, during
postconviction relief proceedings. See State ex rel. Love v. Cuyahoga Cty. Prosecutor’s
Office, 87 Ohio St.3d 158, 718 N.E.2d 426 (1999). See also State v. Bryan, 8th Dist.
Cuyahoga No. 93038, 2010-Ohio-2088, ¶ 45; State v. Taylor, 8th Dist. Cuyahoga No.
80271, 2002-Ohio-2742, ¶ 19 (courts are not required to provide petitioners discovery in
postconviction proceedings). The trial court, therefore, did not err by denying Jackson’s
motion for discovery. See State v. Hale, 8th Dist. Cuyahoga No. 103654,
2016-Ohio-5837, ¶ 52.
{¶12} Moreover, while an indigent defendant sentenced to death has a statutory
right under R.C. 2953.21 to appointed counsel to pursue a timely filed, first
postconviction petition, the statute “does not provide for appointment of experts or
investigators.” State v. Monroe, 10th Dist. Franklin No. 04AP-658, 2005-Ohio-5242, ¶
15. Ohio courts have concluded that there is no constitutional right to the appointment
of an expert or an investigator even where the statute provides for appointed counsel in a
postconviction proceeding. Id., citing State v. Smith, 9th Dist. Lorain No. CA
98CA007169, 2000 Ohio App. LEXIS 972 (Mar. 15, 2000), and State v. Trummer, 7th
Dist. Columbiana No. 96 CO 97, 1998 Ohio App. LEXIS 6193 (Dec. 16, 1998). See
also State v. Coleman, 2d Dist. Clark No. 2001-CA-42, 2002-Ohio-5377, ¶ 109 (noting
that there is no constitutional or statutory right to funding of an expert in aid of a
postconviction petition). Accordingly, we are unable to conclude that the trial court
erred in denying Jackson’s request for funds to obtain an expert on intellectual disabilities
and sex offender status issues.
{¶13} Jackson’s second assignment of error is overruled.
B. Petition for Postconviction Relief
{¶14} We address Jackson’s remaining assignments of error together because they
each concern the trial court’s denial of his petition for postconviction relief. Jackson
argues that because he attached evidence outside the record, the trial court erred by
dismissing some of the grounds listed in his petition for postconviction relief based on the
doctrine of res judicata. In addition, Jackson argues that he presented sufficient
operative facts to merit postconviction relief or, at a minimum, an evidentiary hearing.
{¶15} A postconviction proceeding is not an appeal of a criminal conviction, but,
rather, a collateral civil attack on the judgment. State v. Steffen, 70 Ohio St.3d 399, 639
N.E.2d 67 (1994). R.C. 2953.21(A)(1)(a) allows Jackson to file a petition asking the
trial court to vacate or set aside the judgment of conviction or sentence. Jackson, as
petitioner, must state all grounds for relief on which he relies, and he waives all other
grounds not so stated. R.C. 2953.21(A)(4). In determining whether substantive
grounds for relief exist, the trial court must consider, among other things, the petition, the
supporting affidavits, and the documentary evidence filed in support of the petition.
R.C. 2953.21(C).
{¶16} A trial court’s decision to deny a postconviction petition without a hearing is
reviewed under the abuse of discretion standard. State v. Abdussatar, 8th Dist.
Cuyahoga No. 92439, 2009-Ohio-5232, ¶ 15. The trial court does not abuse its
discretion in dismissing a petition for postconviction relief without a hearing where (1)
the petitioner fails to set out sufficient operative facts to establish substantive grounds for
relief, or (2) the operation of res judicata prohibits the claims advanced in the petition.
Id. A petition for postconviction relief is not the proper vehicle to raise issues that were
or could have been determined on direct appeal. State v. Perry, 10 Ohio St.2d 175, 226
N.E.2d 104 (1967). The evidence submitted with the petition must be competent,
relevant, and material and not merely cumulative of or alternative to evidence presented
at trial. State v. Combs, 100 Ohio App.3d 90, 652 N.E.2d 205 (1st Dist.1994).
{¶17} We review the trial court’s ruling on a postconviction petition for an abuse
of discretion. State v. Gondor, 112 Ohio St.3d 377, 2006-Ohio-6679, 860 N.E.2d 77, ¶
45.
1. Ineffective Assistance of Counsel — Mitigation Phase
{¶18} We will now address Jackson’s argument that the trial court erred in
dismissing his petition for postconviction relief without a hearing where he presented
sufficient operative facts to support his claims of ineffective assistance of counsel during
the mitigation phase of his trial.
{¶19} The imposition of the death penalty requires that one of ten specific
statutory factors is laid out in the indictment and proven beyond a reasonable doubt at
trial. R.C. 2929.04(A). In this case, Jackson was found guilty of the death-penalty
factors specified in R.C. 2929.04(A)(5) and (7).
{¶20} After one of the R.C. 2929.04(A) factors is found to have been proven
beyond a reasonable doubt, the court or jury
shall consider, and weigh against the aggravating circumstances proved
beyond a reasonable doubt, the nature and circumstances of the offense, the
history, character, and background of the offender, and all of the following
factors:
***
(3) Whether, at the time of committing the offense, the
offender, because of a mental disease or defect, lacked
substantial capacity to appreciate the criminality of the
offender’s conduct or to conform the offender’s conduct to
the requirements of the law;
***
(5) The offender’s lack of a significant history of prior
criminal convictions and delinquency adjudications;
(6) If the offender was a participant in the offense but not the
principal offender, the degree of the offender’s participation
in the offense and the degree of the offender’s participation in
the acts that led to the death of the victim;
(7) Any other factors that are relevant to the issue of whether
the offender should be sentenced to death.
R.C. 2929.04(B).
{¶21} The existence of any mitigating factors does not preclude imposition of the
death penalty. However, these factors shall be weighed against the aggravating factors.
R.C. 2929.04(C).
i. Mitigation Evidence
{¶22} At the mitigation hearing, defense counsel introduced several exhibits and
the expert testimony of John Matthew Fabian, Ph.D., a clinical psychologist, who was
retained by counsel. Dr. Fabian evaluated Jackson for the purpose of providing
mitigation evidence at trial. In the course of his evaluation, Dr. Fabian reviewed
Jackson’s school records, prison records, employment history, medical records, and the
forensic psychological reports completed by the court Psychiatric Clinic. Dr. Fabian
also interviewed Jackson’s parents and other family members.
{¶23} Dr. Fabian reported that Jackson has worked at a variety of jobs, but was
homeless and unemployed at the time of the offenses. Jackson’s family reported that
Jackson is married but that the marriage is extremely dysfunctional. Jackson, 141 Ohio
St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, at ¶ 284.
{¶24} In his written report and testimony, Dr. Fabian stated that Jackson had a
significant history of alcohol and drug use leading up to substance dependence. Jackson
reported that he began using alcohol and marijuana at the age of 14. Dr. Fabian testified
that Jackson’s “drugs of choice were alcohol, phencyclidine or what we call PCP or angel
dust, cannabis, marijuana, and then he’s taken opiate-type pills such as Oxycontin, used
and abused cocaine and LSD.” Jackson reported that he was using an ounce of PCP and
a quarter-ounce to a half-ounce of marijuana every day. Jackson also reported using
cocaine on a daily basis during the last few years and drinking significant amounts of
alcohol. Jackson at ¶ 289.
{¶25} Jackson was administered the substance-abuse screening inventory
(“SASSI-3”) and “clearly met [the] criteria for substance dependence, both alcohol and
drug dependence.” Dr. Fabian testified that Jackson “reported symptoms of dependence,
nausea, dizziness, hallucinations, flashbacks, [and] drinking more than intended, [and] his
substances have interfered with relationships, so it’s affected work and school.”
Jackson at ¶ 290.
{¶26} Dr. Fabian further testified about the link between substance abuse and
murder, stating:
there’s been some research discussing * * * the likelihood of there being
alcohol or drugs involved in homicide cases and the numbers are quite
high. Perhaps even up to a third or 50 percent of homicide cases there is
some type of substance abuse involved by the perpetrator.
***
Individuals that are under the intoxication of PCP—well, Jeremiah called
himself or referred to himself as a werewolf. So they can hallucinate, they
can have faulty paranoid thinking to the threshold of a delusion, a fixed
false bizarre/nonbizarre belief.
See Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, at ¶ 225. Dr.
Fabian opined that “there is a possibility that there was some evidence of intoxication and
a substance-induced psychosis due to the PCP that he had used.”
{¶27} Dr. Fabian testified that Jackson “does not suffer from any significant
mental illness such as psychosis or mood disorder.” However, Dr. Fabian stated that
testing indicated that Jackson has “cognitive impairments in various areas including low
intelligence, deficient academic achievement abilities and some cognitive
neuropsychological deficits. I believe * * * that they are connected and correlated with
one another.” Dr. Fabian supported his conclusion with evidence of Jackson’s poor
grades in school and intelligence-test results showing that he had a 75 IQ.
{¶28} During his testimony, Dr. Fabian discussed the possible link between
Jackson’s low intelligence and his drug use. According to Dr. Fabian,
Individuals with cognitive impairment especially residing in areas such as
[Jackson]’s, low socioeconomic areas with histories of drug trafficking and
drug use are more prone to be using substances such as that.
{¶29} Dr. Fabian also testified that Jackson’s low-intellectual functioning is one of
several factors that “would be related empirically to some degree in this case to violence.”
He stated that such factors are cumulative and additive in nature:
So the fact that this individual has low intellectual functioning, poor verbal skills,
substance abuse and dependence, was potentially intoxicated at the time of the offense,
unemployed, experienced relationship problems, and had access to weapons and
substances * * * I think those would act cumulatively rather than just in isolation.
See Jackson at ¶ 227-229
{¶30} Dr. Fabian also weighed Jackson’s statement that he had been sexually
abused when he was a child by two different women who attended his father’s church.
Dr. Fabian was unable to verify Jackson’s claim of child abuse. However, Dr. Fabian
explained that assuming Jackson was abused, he was at a “higher risk” for “problematic
behaviors.”
{¶31} In addition to the testimony submitted by Dr. Fabian, defense counsel
further reiterated its position that Jackson’s drug use, poor socioeconomic environment,
homelessness, unemployment, and estrangement from his wife were significant mitigating
factors, which showed that Jackson was “spiraling down” at the time of the offenses.
Finally, counsel urged the court to show mercy in arriving at its decision.
{¶32} In its sentencing opinion, the trial court carefully weighed all mitigating
factors supported by the evidence, including Jackson’s drug use, “lower than average
intelligence,” his remorse, acceptance of responsibility, his employment history, and other
“psychosocial stressors.” In addition, the trial court considered the support and love
Jackson’s family demonstrated throughout trial and defense counsel’s suggestion that
Jackson was the victim of physical and sexual abuse as a minor. Ultimately, however,
the trial court concluded that the foregoing mitigating factors did not weigh in favor of a
sentence other than a death sentence. The court found that Jackson’s conduct was “cold,
calculated” and “showed foresight, planning, cunning, and studied preparation.”
ii. Arguments on Appeal
{¶33} In his first, second, third, fourth, and fifth grounds for relief, Jackson argues
that he was denied effective assistance of counsel during the mitigation phase of his
capital trial where counsel (1) failed to obtain a complete and sufficient mental health
assessment from a competent psychologist, (2) failed to move the trial court for
appointment of an expert in intellectual disability, (3) failed to move the trial court for
appointment of an expert in substance abuse/dependence, (4) failed to move the trial court
for appointment of an expert in sex offender treatment, and (5) failed to fully
investigate his background for mitigating factors.
{¶34} In support of these grounds for relief, Jackson submitted affidavits from (1)
psychologist, Jolie S. Brams, Ph.D.; (2) Jackson’s brother, Joseph Jackson; (3) Jackson’s
mother, Esther Jackson; (4) Jackson’s sister, Crystal King; and (5) Jackson’s friends,
Tomorraw Graham and Johnathan Robertson.
{¶35} Dr. Brams was contacted following Jackson’s conviction in order to review
the quality and thoroughness of the mitigation evidence presented on Jackson’s behalf.
In her affidavit and attached consultation report, Dr. Brams asserted that Dr. Fabian failed
to present a complete and relevant assessment of Jackson. Dr. Brams averred that in
January 2011, she conducted a five hour clinical/forensic evaluation of Jackson and
reviewed a large number of Jackson’s “historical, educational, and psychological
records.” Based on her evaluation, Dr. Brams opined that a number of factors, including
Jackson’s mood disorder, depression, paranoia, limited intellectual abilities, substance
abuse, and his previous sexual conviction, negatively impacted Jackson’s “functioning” at
the time the offenses were committed. Dr. Brams stated that the referenced factors
“were not properly addressed during the mitigation phase” and that “the mitigation
testimony included misdiagnoses of Jackson’s mental health history and difficulties, did
not include significant diagnostic and historical information, and minimized or
misinterpreted various aspects of functioning.” Dr. Brams continued,
as a result, the mitigation testimony presented was not informative
regarding the realities of Jackson’s functioning, and did not lay out in a
meaningful way for the court an understanding of the scope of Jackson’s
deficits, and how those played a direct role in his decision making at the
time that the offenses were committed.
Thus, Dr. Brams concluded that “this was one of the most ill-focused, disorganized, and
unmeaningful mitigation presentations that this examiner has had the opportunity to
review.”
{¶36} Similarly, Jackson’s friends and family collectively averred that Jackson’s
drug habit and his obligation to register as a “sexual offender” as a result of a prior
conviction had a negative impact on Jackson’s mental health. They opined that these
factors caused Jackson to act unusual and contributed to his deteriorating behavior in the
weeks leading to his crime spree. They further expressed their disappointment with
Jackson’s representation during trial and defense counsel’s failure to present more
personal information at the mitigation hearing.
{¶37} In denying Jackson’s petition for postconviction relief, the trial court stated,
in pertinent part:
The court finds that grounds for relief I, II, III, and IV are not
supported by sufficient evidence to enable the court to conclude that the
performance of trial counsel was deficient. Most of the evidence used to
support these four claims is in the trial record that was available during the
defendant’s Supreme Court appeal and to that extent, these claims at their
core are barred by res judicata as well. The court acknowledges new
evidence was presented by defendant on these claims and so it does not use
res judicata to deny relief under these claims. New and old evidence
combined was however insufficient to show entitlement to relief.
The evidence does not show Dr. Fabian’s evaluation was
incomplete. The evidence does not show trial counsel should have moved
for a mental retardation expert. The trial court required trial counsel to
justify their decision that an Atkin’s claim would not be made and a
hearing requested. The trial court was convinced by the hearing held on
this issue that trial counsel had thoroughly considered mental retardation
and that experts dealing with defendant concurred that there was no basis
to further investigate mental retardation in this defendant. The evidence
is insufficient to convince the court that trial counsel should have sought a
substance abuse or dependence expert to prepare the defense case. The
evidence is wholly insufficient to convince the court that trial counsel
should have sought an expert in sex offender treatment to prepare the
defense case. The court has no evidence to support the repeated
references of defendant’s petition to his being classified or registered as a
sex offender in his prior Cuyahoga felony case number, CR-398540, let
alone being “improperly” classified as a sex offender “for six years” as
described in the petition and its attachments.
***
The court finds the evidence is insufficient to support ground for
relief V. The trial record contains evidence that defendant’s brother
Joseph was in fact interviewed by Dr. Fabian. The several affidavits
submitted by defendant’s family members and friends contain no new or
remarkable information to support the conclusion that an avenue of
meaningful mitigation was not explored or, if explored, not presented on
defendant’s behalf. Brother Joseph Jackson’s affidavit confirms the trial
record to the effect that defendant did not want his family members to
testify on his behalf and that best explains why family members and friends
were not called to testify at mitigation. The trial record confirms that the
court invited defendant to introduce additional witnesses at mitigation and
assured him that there was no time constraint for the court to entertain the
testimony of any number of witnesses he might want to call. In the end,
defendant decided against calling family and friends in the mitigation.
The court after an appropriate recorded colloquy with the defendant
determined that this was defendant’s fully-informed and personal decision
as to presentation of mitigation evidence.
{¶38} On appeal, Jackson reiterates his position that defense counsel rendered
ineffective assistance of counsel during the mitigation phase of the trial by failing to fully
investigate the available mitigation evidence and by failing “to seek appropriate expert
assistance.”
{¶39} To succeed on a claim of ineffective assistance, a defendant must establish
that counsel’s performance was deficient and that the defendant was prejudiced by the
deficient performance. Strickland v. Washington, 466 U.S. 668, 687, 104 S.Ct. 2052, 80
L.Ed.2d 674 (1984). Counsel will only be considered deficient if his or her conduct fell
below an objective standard of reasonableness. Id. at 688.
{¶40} When reviewing counsel’s performance, this court must be highly
deferential and “must indulge a strong presumption that counsel’s conduct [fell] within
the wide range of reasonable professional assistance.” Id. at 689. To establish
resulting prejudice, a defendant must show that the outcome of the proceedings would
have been different but for counsel’s deficient performance. Id.{¶41} Generally, a defense counsel’s decision as to what mitigating evidence to
present during the penalty phase of a capital trial is a matter of trial strategy. State v.
Keith, 79 Ohio St.3d 514, 530, 684 N.E.2d 47 (1997), cert. denied, 523 U.S. 1063, 118
S.Ct. 1393, 140 L.Ed.2d 652 (1998). “In many criminal cases, trial counsel’s decision
not to seek expert testimony ‘is unquestionably tactical because such an expert might
uncover evidence that further inculpates the defendant.’” State v. Krzywkowski, 8th
Dist. Cuyahoga Nos. 83599, 83842, and 84056, 2004-Ohio-5966, ¶ 22, quoting State v.
Glover, 12th Dist. Clermont No. CA2001-12-102, 2002-Ohio-6392, ¶ 95.
{¶42} Defense counsel has a duty to investigate mitigating circumstances in order
to make informed tactical decisions about which information would be most helpful to a
client’s case. State v. Jackson, 10th Dist. Franklin No. 01AP-808, 2002-Ohio-3330, ¶
84, citing State v. Johnson, 24 Ohio St.3d 87, 90, 494 N.E.2d 1061 (1986). However,
out-of-record evidence that is merely cumulative of, or alternative to, other mitigation
evidence defense counsel presented does not provide substantive grounds for a claim of
ineffective assistance of counsel at mitigation. Combs, 100 Ohio App.3d 90, at 98, 652
N.E.2d 205. In Ohio, it is within the purview of counsel to determine whether additional
expert testimony or other information regarding a defendant’s background is cumulative
in nature. State v. Cunningham, 3d Dist. Allen No. 1-04-19, 2004-Ohio-5892, ¶ 38,
citing State v. Yarbrough, 3d Dist. Shelby No. 17-2000-10, 2001 Ohio App. LEXIS 1930(Apr. 30, 2001), *7. To demonstrate prejudice, a petitioner must show not only that
there was mitigating evidence that counsel failed to present, but also that “there is a
reasonable probability that the evidence would have swayed the jury to impose [a lesser
sentence].” Keith at 536.
{¶43} After careful review, we find the trial court did not abuse its discretion in
determining that Jackson failed to present sufficient evidence to enable the court to
conclude that Jackson received ineffective assistance of counsel during the mitigation
phase of trial.
{¶44} Initially, we note that many of the ineffective assistance of counsel claims
relating to the mitigation phase of trial were previously raised and rejected in Jackson’s
direct appeal. Specifically, Jackson argued that (1) counsel was not prepared to present
mitigating evidence, (2) counsel failed to adequately prepare Dr. Fabian so he would
address in his testimony how Jackson’s substance abuse, low intelligence, and child abuse
affected his actions on the date of the murder, and (3) counsel was ineffective by failing
to obtain a substance-abuse expert to establish the nexus between Jackson’s substance
abuse and the offenses. In rejecting these claims, the Ohio Supreme Court provided a
detailed analysis, focusing on the extent of Dr. Fabian’s expert psychological evaluation
and Jackson’s failure to present sufficient evidence to support his allegations of deficient
performance. See Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, at ¶
211-234.
{¶45} We recognize that Dr. Brams’s evaluation report was outside the record and,
therefore, not available during Jackson’s direct appeal. However, we conclude that the
evidence attached to Jackson’s petition does not set forth sufficient operative facts to
establish substantive grounds for relief.
{¶46} Regarding Dr. Brams’s opinion that Jackson’s “team did not call in experts
that would have specific knowledge of certain areas,” we find that additional expert
testimony or other information regarding Jackson’s background would have been
cumulative of, or alternative to, the testimony presented by defense counsel during the
mitigation phase of trial. The trial court’s sentencing opinion reflects that the trial court
carefully considered many of the factors Dr. Brams suggests should have been thoroughly
considered by an expert, including Dr. Fabian’s testimony concerning Jackson’s:
(1) cognitive impairments, probable cognitive disorder and functioning in
the borderline range of intellectual functioning, (2) history of polysubstance
dependence and likely intoxicated state at the time of the offenses with
substance dependency of phencyclidine, cannabis, alcohol, cocaine, and
opioids, (3) abuse at home, including, at a minimum, harsh corporal
physical discipline, (4) questionable self-reported sexual abuse between the
ages of six and ten by two separate women at church, (5) witnessing
violence in the community, including, according to Jackson, at least three
murders, (6) growing up in a low socioeconomic community with exposure
to possession of weapons, drug use, drug trafficking, and community
violence, and (7) notable psychosocial stressors around the time of the
offenses.
Jackson at ¶ 291.
{¶47} We agree that Dr. Fabian’s testimony did not include a discussion of
Jackson’s obligation to register as a sex offender or the psychological impact that
requirement may have had on Jackson at the time of the offenses. However, while a
“sex offense treatment” expert may have established alternative or additional mitigating
theories, we are unable to conclude that there is a reasonable probability that such expert
testimony would have swayed the three-judge panel to impose a life sentence.
{¶48} Similarly, we find nothing in the record to suggest counsel “failed to
supervise the work of [Dr. Fabian] to ensure that a complete and valid evaluation for
intellectual disability was accomplished.” As stated, Dr. Fabian testified at length
concerning Jackson’s various cognitive impairments and their links to Jackson’s acts of
violence. Although Jackson contends that Dr. Fabian failed to conduct a thorough
intellectual disability (i.e., mental retardation) assessment, the testimony presented at both
the pretrial Atkins evaluation, and the mitigation hearing, establishes that Dr. Fabian
consistently opined that the information he gathered did not support a conclusion that
Jackson was intellectually disabled. The trial court agreed, stating that it “was
convinced by the hearing held on this issue that trial counsel thoroughly considered
mental retardation and that experts dealing with defendant concurred that there was no
basis to further investigate mental retardation.” Under these circumstances, we cannot
say counsel rendered ineffective assistance by failing to request an expert on intellectual
disabilities. As the Ohio Supreme Court noted in Jackson:
Jackson has not claimed in these proceedings that he is, in fact, mentally
retarded. The trial court did not conduct an Atkins hearing and never made
a ruling that Jackson is not mentally retarded. Rather, it held a hearing so
that the record would reflect that trial counsel had considered and diligently
investigated the Atkins issue and justifiably decided not to pursue a claim
that Jackson is mentally retarded. And to the extent that Jackson argues
that trial counsel provided ineffective assistance by failing to adequately
investigate his adaptive functioning, there is no showing that Jackson
actually has deficits in intellectual or adaptive functioning that would prove
mental retardation or a developmental disability, and therefore he cannot
demonstrate prejudice on this record.
Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, at ¶ 309. Dr. Brams’s
report does not present competent evidence outside the record to persuade this court to
dispute the Ohio Supreme Court’s conclusion on this issue.
{¶49} Regarding Jackson’s claim that counsel was ineffective for failing to obtain
a substance abuse expert, the Ohio Supreme Court has held that a defendant in a capital
case is not deprived of mitigating evidence in the form of a substance abuse expert, where
the defense presented “‘alternative devices that * * * fulfill[ed] the same functions as the
expert assistance sought [by the defendant].’” State v. Foust, 105 Ohio St.3d 137,
2004-Ohio-7006, 823 N.E.2d 836, ¶ 103, quoting State v. Jenkins, 15 Ohio St.3d 164, 473
N.E.2d 264 (1984), paragraph four of the syllabus. In this case, Dr. Fabian testified at
length during the mitigation hearing regarding Jackson’s long history of alcohol and drug
abuse and “the possible links between Jackson’s substance abuse and the offenses”
committed in this case. Based on Dr. Fabian’s testimony, having another expert testify
regarding the effect of substance abuse on Jackson would have been cumulative.
{¶50} In addition, we find nothing in the record or the evidence attached to
Jackson’s petition to suggest Dr. Fabian’s evaluation was incomplete or that defense
counsel failed to fully investigate available mitigation evidence. As referenced in
Jackson, defense counsel and Dr. Fabian “interviewed Jackson on numerous occasions,”
reviewed all relevant records, interviewed members of Jackson’s family, and meticulously
considered the nexus between the relevant mitigating factors and the offenses committed.
Jackson at ¶ 216. Although Dr. Brams believes a better job could have been done
investigating and presenting Jackson’s psychological background, she “has the benefit of
perfect hindsight, the distorting effect of which must be avoided.” State v. Post, 32 Ohio
St.3d 380, 388, 513 N.E.2d 754 (1987) , cert. denied, 484 U.S. 1079, 98 L.Ed.2d 1023,
108 S.Ct. 1061 (1988). “[D]efendants are not entitled to perfect mitigation hearings.”
State v. Landrum, 4th Dist. Ross No. 98 CA 2401, 1999 Ohio App. LEXIS 71, * 41
(Jan.11, 1999). “When, as here, counsel has presented a meaningful concept of
mitigation, the existence of alternate or additional mitigation theories does not establish
ineffective assistance.” Combs, 100 Ohio App.3d at 105, 652 N.E.2d 205 (1st
Dist.1994).
{¶51} For these reasons, we find the trial court did not err in finding no merit to
Jackson’s first, second, third, fourth, and fifth grounds for relief.
2. Application of Res Judicata
{¶52} We now address Jackson’s contention that the trial court erred in finding
that his sixth, eighth, ninth, tenth, eleventh, and twelfth grounds for relief were barred by
the doctrine of res judicata.
{¶53} Under the doctrine of res judicata, “a valid, final judgment rendered upon
the merits bars all subsequent actions based upon any claim arising out of the transaction
or occurrence that was the subject matter of the previous action.” State v. Patrick, 8th
Dist. Cuyahoga No. 99418, 2013-Ohio-5020, ¶ 7, citing Grava v. Parkman Twp., 73 Ohio
St.3d 379, 382, 653 N.E.2d 226 (1995). In order to overcome the res judicata bar, the
petitioner must show, through the use of extrinsic evidence, that he or she could not have
appealed the original constitutional claim based on the information in the original trial
record. Combs, 100 Ohio App.3d, at 97-98, 652 N.E.2d 205. Said another way, issues
properly raised in a petition for postconviction relief are only those that could not have
been raised on direct appeal because the evidence supporting such issues is outside the
record. State v. Milanovich, 42 Ohio St.2d 46, 50, 325 N.E.2d 540 (1975). Thus, a
trial court may dismiss a petition on the basis of res judicata if an issue was or should
have been raised on direct appeal. State v. Dowell, 8th Dist. Cuyahoga No. 86232,
2006-Ohio-110, ¶ 10, citing Perry, 10 Ohio St.2d 175, 226 N.E.2d 104.
{¶54} Extrinsic evidence attached to the petition does not automatically defeat the
res judicata bar. Rather, evidence outside the record must meet “‘some threshold
standard of cogency; otherwise it would be too easy to defeat the holding of Perry by
simply attaching as exhibits evidence which is only marginally significant and does not
advance the petitioner’s claim[.]’” State v. Lawson, 103 Ohio App.3d 307, 315, 659
N.E.2d 362 (12th Dist.1995), quoting State v. Coleman, 1st Dist. Hamilton No.
C-900811, 1993 Ohio App. LEXIS 1485, * 21 (Mar. 17, 1993). Moreover, the evidence
dehors the record must not be evidence that was in existence and available for use at the
time of trial and that could and should have been submitted at trial if the defendant
wished to use it. Dowell ¶ 10.
{¶55} In this case, grounds six, eight, nine, ten, eleven, and twelve of Jackson’s
petition argued that Jackson’s convictions and sentence are void or voidable because (6)
he was denied effective assistance of counsel in the mitigation phase of his capital trial
when counsel failed to raise the negative effect of being improperly labeled a “sex
offender” in an unrelated case on Jackson’s psychological state, (8) the death penalty “is
disproportionally meted out to those defendant’s who are racial minorities”; (9) his jury
waiver was not knowingly, voluntarily, or intelligently made; (10) he was denied the
effective assistance of counsel and due process during the trial phase of his capital trial
when “the trial court denied counsel the opportunity to effectively question Detective
Ezzo”; (11) he was denied the effective assistance of counsel and due process during the
trial phase of his capital trial when “trial counsel failed to present testimony of Reverend
Darnell Know to substantiate the claim that law enforcement promised [Jackson] that he
would not be subject to the death penalty if he cooperated”; and (12) he was denied the
effective assistance of counsel and due process during the trial phase of his capital trial
when “trial counsel failed to support the motion to suppress [Jackson’s] statement to
Detective Diaz after learning that [Jackson’s] constitutional rights were violated.”
{¶56} As stated, the trial court found that Jackson’s sixth, eighth, ninth, tenth,
eleventh, and twelfth grounds for relief were barred by the doctrine of res judicata. In
support of its judgment, the trial court stated as follows:
The court finds that grounds for relief VI,VIII, IX, X, XI, [AND] XII
are claims barred by the doctrine of res judicata. These grounds for relief
involve issues that have already been fully litigated by defendant’s appeal to
the Ohio Supreme Court and to the extent one could find they were not fully
litigated there, they could have been fully litigated in that appeal. All of
these claims are primarily supported by the trial record and not by new
evidence which was unavailable to defendant at the time of trial. To the
extent these grounds for relief make reference to newly discovered evidence
introduced with the petition, the court finds the new evidence only
marginally significant to, and supportive of, the claims made.
{¶57} We now address the merits of these grounds for relief.
i. Additional Ineffective Assistance of Counsel Claims
{¶58} Jackson’s sixth, tenth, eleventh, and twelfth grounds for relief set forth
further allegations of ineffective assistance of counsel.
{¶59} “[I]neffective assistance of counsel ordinarily should be raised on direct
appeal.” State v. Jones, 8th Dist. Cuyahoga No. 83601, 2004-Ohio-3868, ¶ 6.
However, “when allegations of ineffective assistance of counsel hinge on facts not
appearing in the record, the proper remedy is a petition for postconviction relief rather
than direct appeal.” State v. Curtis, 8th Dist. Cuyahoga No. 89412, 2008-Ohio-916, ¶ 8.
Thus, to succeed on a claim of ineffective assistance of counsel in a postconviction
relief petition, a defendant must present “evidence outside the record that was not in
existence and was not available to the [defendant] in time to support a direct appeal.
The evidence submitted outside the record must be competent, relevant, and material to
the issue at hand.” (Citation omitted.) State v. Krzywkowski, 8th Dist. Cuyahoga Nos.
83599, 83842, and 84056, 2004-Ohio-5966, ¶ 11.
{¶60} In his sixth ground for relief, Jackson argues defense counsel rendered
ineffective assistance of counsel during the mitigation phase of trial by objecting to the
prosecutor’s attempt to cross-examine Dr. Fabian about Jackson’s prior abduction
conviction. Jackson contends that “rather than objecting to any mention of [Jackson]’s
abduction case that resulted in his improper classification as a sex offender, defense
counsel should have presented this information to the panel as an explanation for
[Jackson]’s desperation for money and his psychological state.”
{¶61} In our view, whether counsel rendered ineffective assistance by objecting to
the prosecution’s attempt to introduce evidence of Jackson’s prior abduction conviction
could fairly have been determined on direct appeal based on the information contained in
the trial record. In this instance, Jackson’s challenge to defense counsel’s trial strategy
during Dr. Fabian’s cross-examination does not hinge on facts outside of the record.
Accordingly, we find the trial court did not err in dismissing Jackson’s sixth ground for
relief pursuant to the doctrine of res judicata.
{¶62} In his tenth ground for relief, Jackson argues the trial court prevented
defense counsel from rendering effective assistance by preventing counsel from
questioning Detective Ezzo about his promise to Jackson’s brother, Reverend Darnell
Knox, that Jackson would not receive the death penalty if he cooperated with the police.
Similarly, Jackson argues in his eleventh ground for relief that defense counsel rendered
ineffective assistance of counsel by failing to present the testimony of Reverend Knox “to
substantiate his claim that law enforcement promised [Jackson] that he would not be
subject to the death penalty if he cooperated.”
{¶63} In support of his tenth and eleventh grounds for relief, Jackson attached a
self-serving affidavit indicating that he would not have cooperated with the police or
made incriminating statements had the detectives not promised that he would not receive
the death penalty. In addition, Jackson relies on the affidavit of Reverend Knox, who
averred that detectives asked him to tell Jackson that he would not receive the death
penalty if he turned himself in and cooperated with their investigation.
{¶64} In his twelfth ground for relief, Jackson argues that defense counsel
rendered ineffective assistance of counsel by failing to support his motion to suppress his
confession with evidence that the investigating detectives denied him the opportunity to
contact his attorney following his arrest. In support of his twelfth ground for relief,
Jackson again relies on a self-serving affidavit, stating that he was denied the opportunity
to contact his attorney prior to making incriminating statements to Detective Raymond
Diaz.
{¶65} Because Jacksons tenth, eleventh, and twelfth grounds for relief rely
exclusively on conversations that occurred outside the record, the trial court erred by
concluding that res judicata barred Jackson from reasserting these specific ineffective
assistance of counsel claims. However, a reviewing court is not authorized to reverse a
correct judgment merely because it was reached for the wrong reason. State v. Lozier,
101 Ohio St.3d 161, 2004-Ohio-732, 803 N.E.2d 770, ¶ 46.
{¶66} After careful review, we find the evidence attached in support of Jackson’s
tenth, eleventh, and twelfth grounds for relief failed to establish sufficient operative facts
to warrant a hearing. As stated by the trial court:
Grounds for relief X and XI are not supported in defendant’s
proffered evidence. No evidence supports the conclusion that any member
of law enforcement told defendant that he would not be subject to the death
penalty if he did or did not do certain things. No new evidence calls into
question the correctness of the trial court’s handling of defendant’s attempt
to cross-examine Det. Ezzo on the subject. At trial, defense counsel did
not represent that they possessed evidence to the contrary and therefore, the
trial court concluded that the trial phase examination of the officer was
merely a fishing expedition. The affidavit of defendant’s brother, Rev.
Knox, does not identify any member of law enforcement who made such a
statement. There are no facts upon which this court can now conclude that
the performance of trial counsel was deficient in this regard or it in any way
prejudiced defendant.
Ground for relief XII is not supported by evidence. The lengthy
transcript of defendant’s recorded statement to police after his arrest does
not contain any request by defendant for the opportunity to talk to legal
counsel. Defendant’s affidavit is insufficient to enable the court to
conclude defendant was denied such a request.
{¶67} We agree with the trial court’s conclusion that the evidence supporting
Jackson’s ineffective assistance of counsel claims fails to establish that counsel’s
performance was deficient or that Jackson was prejudiced by the alleged deficient
performance. Initially, we note that defense counsel did, in fact, attempt to question
Det. Ezzo about any promises he made to Jackson in exchange for his cooperation.
However, the trial court prevented counsel from doing so because the available evidence
did not support the line of questioning. Thus, Jackson’s tenth ground for relief
challenges the trial court’s evidentiary ruling and not counsel’s representation.
Nevertheless, given the lack of specificity in Reverend Knox’s affidavit, we agree with
the trial court’s determination that counsel failed to set forth a sufficient basis to impeach
Det. Ezzo about purported statements he made during the course of his investigation.
See Evid.R. 607(B) (“A questioner must have a reasonable basis for asking any question
pertaining to impeachment that implies the existence of an impeaching fact.”). In
addition, we find defense counsel’s decision not to call Reverend Knox as a defense
witness fell within the purview of trial strategy.
{¶68} Moreover, we find no merit to Jackson’s contention that counsel was
ineffective for failing to file a motion to suppress incriminating statements Jackson made
to Det. Diaz outside the presence of counsel.
Failure to file a motion to suppress does not constitute per se ineffective
assistance of counsel. Rather, the failure to file a motion to suppress
constitutes ineffective assistance of counsel only when the record
demonstrates that the motion would have been successful if made. Even if
some evidence in the record supports a motion to suppress, counsel is still
considered effective if counsel could reasonably have decided that filing a
motion to suppress would have been a futile act.
(Citations omitted.) State v. Moon, 8th Dist. Cuyahoga No. 101972, 2015-Ohio-1550, ¶
28.
{¶69} In this case, Det. Diaz conducted a videotaped interview of Jackson on June
22, 2009. After waiving his Miranda rights, Jackson admitted shooting Pickryl. But
Jackson said that he had been trying to scare her and had not intended to kill her. At
trial, the panel admitted the 56-page transcript of Jackson’s recorded interview with Det.
Diaz. As noted in the trial court’s judgment entry, the transcript does not contain any
request by Jackson for the opportunity to talk to legal counsel. For these reasons, we
find counsel could reasonably have decided that filing a motion to suppress Jackson’s
statements to Det. Diaz would have been a futile act.
{¶70} Accordingly, the trial court did not err in failing to provide a hearing on
Jackson’s tenth, eleventh, and twelfth grounds for relief.
ii. Proportionality of Ohio’s Death Penalty
{¶71} With regard to his eighth ground for relief, Jackson argued that Ohio’s death
penalty law disproportionately imposes the death penalty upon minorities. Our review of
Jackson’s direct appeal reveals that the Ohio Supreme Court rejected Jackson’s claim that
Ohio’s death penalty is unconstitutional. Jackson, 141 Ohio St.3d 171,
2014-Ohio-3707, 23 N.E.3d 1023, at ¶ 221.
{¶72} Even assuming Jackson could bring this claim and it was not prevented by
res judicata, “[b]oth the United States Supreme Court and the Supreme Court of Ohio
have refused to accept statistics that purport to show a racial disparity in the imposition of
the death penalty as grounds for finding the death penalty to be unconstitutional.” State
v. Steffen, 31 Ohio St.3d 111, 124, 509 N.E.2d 383 (1987), cert. denied, 485 U.S. 916,
108 S.Ct. 1089, 99 L.Ed.2d 250 (1988). Rather than make a general showing of
disparity, a defendant “‘must show that racial considerations affected the sentencing
process in his case’” for equal protection to be implicated. Id. While Jackson has
submitted statistical information relating to the application of the death penalty to African
Americans in Ohio and Cuyahoga County, he has presented no evidence to demonstrate
that the death penalty was applied in a discriminatory manner in his case. See State v.
Frazier, 6th Dist. Lucas No. L-07-1388, 2008-Ohio-5027, ¶ 67. Accordingly, the trial
court did not err in failing to provide a hearing on Jackson’s eighth ground for relief.
iii. Jury Waiver
{¶73} In his ninth ground for relief, Jackson alleged that his jury waiver was not
knowingly or intelligently made where he was not advised of “numerous factors,”
including:
A) That the concurrence of only three people rather than a jury of twelve
would be necessary to convict him of the underlying charges;
B) That the concurrence of only three people rather than a jury of twelve
would be necessary to convict him of the death penalty specifications;
C) That the concurrence of only three people rather than a jury of twelve
would be necessary before he could be sentenced to death;
D) He would be giving up his right to a two-stage sentencing process before
a death sentence could be imposed, and replacing it with a one-step process,
since a jury can only make a recommendation of death, and the trial judge
must then make his own independent determination whether death is the
appropriate penalty;
E) That the opportunity for reversal of conviction and/or death sentence on
appeal is greatly diminished; and
F) That the jury waiver may be withdrawn at any time before the
commencement of trial.
{¶74} Jackson further argued that his waiver was not knowingly made where he
was suffering from a headache at the time of the waiver colloquy and where he relied on
trial counsel’s statement that he would not receive the death penalty if he waived a jury.
{¶75} As acknowledged by the trial court, the Ohio Supreme Court rejected
Jackson’s contention that his jury waiver was not knowingly, voluntarily, or intelligently
made. In doing so, the court performed a detailed and extensive review of the record
and the various arguments raised by Jackson concerning the validity of his jury waiver.
Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707, 23 N.E.3d 1023, at ¶ 106-116.
However, in his postconviction petition, Jackson asserts additional jury waiver arguments
that could not have been raised or fairly determined on direct appeal without resorting to
evidence outside the record. Specifically, Jackson relies exclusively on his own
self-serving affidavit, wherein he averred that (1) defense counsel told him that he was
“in good” with the trial judge and Jackson would not get the death penalty if he waived
his right to a jury, and (2) he would not have waived his right to a jury had defense
counsel not told him he would not receive the death penalty if he tried his case before a
three-judge panel. Because the above conversation occurred outside the record, the trial
court erred by concluding that res judicata barred Jackson from reasserting his jury waiver
claims. However, the trial court, nonetheless, did not err by dismissing the claim.
{¶76} We note initially that as a general matter, “evidence outside the record in the
form of petitioner’s own self-serving affidavit alleging constitutional deprivation will not
compel a hearing.” State v. Holloman, 10th Dist. Franklin No. 06AP-608,
2006-Ohio-6789, ¶ 9, citing State v. Kapper, 5 Ohio St.3d 36, 37-38, 448 N.E.2d 823(1983). In addition, the record reflects Jackson informed the trial judge in open court
that he was waiving his right to a jury trial and signed a written waiver stating that he
voluntarily waived his right to a jury and elected to be tried by a three-judge panel. The
waiver acknowledged that he understood that he had the right to a “jury of twelve, and
that no verdict could be made by a jury except by agreement of all twelve members of that
jury.” The waiver stated that “no threats or promises have been made to induce me to
waive this right, and * * * I am not under the influence of any drugs, alcohol, or
medication that would affect my decision.” See Jackson at ¶ 110. Under these
circumstances, we find Jackson’s affidavit does not set forth sufficient operative facts to
overcome the presumption that his waiver was voluntarily, knowingly, and intelligently
made.
{¶77} Based on the foregoing, we find the trial court did not err in dismissing
Jackson’s sixth, eighth, ninth, tenth, eleventh, and twelfth grounds for relief without a
hearing.
3. Judicial Bias
{¶78} We now address Jackson’s allegations of judicial bias. In his thirteenth
ground for relief, Jackson argues his right to a fair trial was violated “due to the judicial
bias that was displayed from the presiding judge towards trial defense counsel.”
Specifically, Jackson alleged that the trial court “repeatedly gave curt responses to
defense counsel” and “developed a personal animosity towards [defense counsel,] which
prejudiced Jackson’s right to a fair trial.”
{¶79} In denying Jackson’s petition, the trial court stated, in pertinent part:
As to ground for relief XIII, the court finds no evidence in the record
that defendant was denied a fair trial due to judicial bias by the court during
trial and mitigation proceedings and it finds no evidence in the record that
the court had any conflict with defense counsel. The court notes, as did
the state of Ohio in its brief, that the defendant’s proffered support for this
claim refers to only six pages in a transcript exceeding 2000 pages. In
addition, the court finds the record reveals only a trial court’s proper
concern for being interrupted while on the record, interruptions being both
unproductive and injurious to a clear transcription of the trial proceedings.
{¶80} “It is well settled that a criminal trial before a biased judge is fundamentally
unfair and denies a defendant due process of law.” State v. LaMar, 95 Ohio St.3d 181,
2002-Ohio-2128, 767 N.E.2d 166, ¶ 34, citing Rose v. Clark, 478 U.S. 570, 577, 106
S.Ct. 3101, 92 L.Ed.2d 460 (1986).
Judicial bias has been described as “a hostile feeling or spirit of ill will or
undue friendship or favoritism toward one of the litigants or his attorney,
with the formation of a fixed anticipatory judgment on the part of the judge,
as contradistinguished from an open state of mind which will be governed
by the law and the facts.”
State v. Dean, 127 Ohio St.3d 140, 2010-Ohio-5070, 937 N.E.2d 97, ¶ 48, quoting State
ex rel. Pratt v. Weygandt, 164 Ohio St. 463, 132 N.E.2d 191 (1956), paragraph four of the
syllabus.
{¶81} In support of his judicial bias claim, Jackson cites portions of the trial
transcript where the presiding judge advised defense counsel not to interrupt the court
while speaking on the record and admonished defense counsel for raising untimely
objections. In addition, Jackson submitted affidavits from co-defense counsel averring
that “both pretrial negotiations and trial proceedings were marred by an extraordinary
contentious relationship between the Judge and [defense counsel].” Co-counsel further
averred that he believed the trial judge “developed a personal animosity towards [defense
counsel] during the course of pretrial and trial court proceedings.”
{¶82} Although the trial court denied Jackson’s claims of judicial bias on
substantive grounds, we find Jackson’s allegations set forth in his thirteenth ground for
relief are barred by the doctrine of res judicata. In our view, Jackson’s current
allegations of judicial bias could or should have been raised in his direct appeal. In fact,
our review of Jackson reveals that the Ohio Supreme Court considered and rejected
numerous allegations of judicial bias. Jackson, 141 Ohio St.3d 171, 2014-Ohio-3707,
23 N.E.3d 1023, at ¶ 184-187. We find nothing in this record to suggest Jackson was
precluded from advancing the current allegations of judicial bias in his direct appeal.
{¶83} Moreover, we do not accept Jackson’s position that the evidence attached in
support of his thirteenth ground for relief constituted new evidence. As stated, Jackson’s
position relies exclusively on statements made on the record during the trial proceedings
and an affidavit of co-counsel, who represented Jackson throughout the trial. Such
evidence was in existence and available at the time Jackson filed his direct appeal.
Despite Jackson’s reliance on the affidavit of his attorney, such evidence outside the
record does not preclude the application of res judicata where, as here, the judicial bias
claim could fairly have been determined on direct appeal based on the information
contained in the trial record. State v. Lewis, 8th Dist. Cuyahoga No. 73736, 1998 Ohio
App. LEXIS 5777 (Dec. 3, 1998). See also State v. Quinones, 8th Dist. Cuyahoga No.
104016, 2016-Ohio-7225, ¶ 12 (“submitting evidence dehors the record in support of a
petition for postconviction relief does not preclude the application of res judicata if the
claim could fairly have been determined on direct appeal based on the information
contained in the trial record.”).
{¶84} Accordingly, we find the trial court did not err by dismissing Jackson’s
thirteenth ground for relief without a hearing.
4. Postconviction Provides a Meaningful Review
{¶85} In his seventh ground for relief, Jackson argued that Ohio’s postconviction
proceedings are inadequate and fail to provide meaningful review “because they allow for
little opportunity for factual development because postconviction discovery is not
permitted and, without sufficient documentation, a defendant is not entitled to an
evidentiary hearing.”
{¶86} This court in State v. Hutton, 8th Dist. Cuyahoga No. 76348,
2004-Ohio-3731, ¶25, 26, addressed this identical issue and held:
A postconviction proceeding is not an appeal of a criminal conviction, but, rather,
a collateral civil attack on the judgment. See State v. Crowder, 60 Ohio St.3d 151, 573
N.E.2d 652 (1991). It bears emphasis that state postconviction review is not a
constitutional right. Id. Postconviction review is a narrow remedy, since res judicata
bars any claim that was or could have been raised at trial or on direct appeal. State v.
Duling, 21 Ohio St.2d 13, 254 N.E.2d 670 (1970); State v. Perry, 10 Ohio St.2d 175, 226
N.E.2d 104 (1967).
Notwithstanding the narrow focus of the postconviction review under R.C.
2953.21, we believe this remedy provides adequate safeguards to protect the
constitutional rights of individuals convicted of a criminal offense.
{¶87} Based on the foregoing precedent, the trial court did not abuse its discretion by refusing to
conduct a hearing to address the merits of Jackson’s seventh ground for relief.
5. Cumulative Error
{¶88} Finally, Jackson argues the cumulative effects of the foregoing errors and omissions
amounted to prejudicial error that deprived him of a fair trial.
{¶89} A judgment of conviction may be reversed if the cumulative effect of errors
deemed separately harmless is to deny the defendant a fair trial. State v. DeMarco, 31
Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus. By its terms,
the doctrine of “cumulative error” will not provide a basis for reversal in the absence of
multiple errors. State v. Madrigal, 87 Ohio St.3d 378, 398, 721 N.E.2d 52 (2000).
Because Jackson failed to support his petition with evidence demonstrating multiple
constitutional deprivations, the trial court properly denied Jackson’s argument regarding
cumulative error. See State v. Hale, 8th Dist. Cuyahoga No. 103654, 2016-Ohio-5837.
{¶90} Based on the foregoing, we find the trial court did not abuse its discretion in
denying Jackson’s petition for postconviction relief without a hearing. Accordingly,
Jackson’s first, third, fourth, fifth, sixth, seventh, eighth, ninth, and tenth assignments of
error are overruled.
{¶91} Judgment affirmed.
It is ordered that appellee recover from appellant costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the common
pleas court to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of
the Rules of Appellate Procedure.
EILEEN T. GALLAGHER, JUDGE
KATHLEEN ANN KEOUGH, A.J., CONCURS;
MELODY J. STEWART, J., CONCURS IN PART AND DISSENTS IN PART WITH
SEPARATE OPINION
MELODY J. STEWART, J., CONCURRING IN PART AND DISSENTING IN PART:
{¶92} I concur with the well-reasoned decision reached by the majority in this
case, except with regard to assignment of error No. 6. In that assigned error, Jackson
challenges the trial court’s dismissal of his claim that his waiver of a jury trial was not
knowingly, voluntarily, and intelligently made. Jackson sets forth several grounds in his
argument. However, relevant to this separate opinion is Jackson’s argument that his
waiver was not proper because he relied on his trial counsel’s assertions that he would
avoid the death penalty if he waived a jury trial. The majority properly notes that the
trial court erred in concluding that this argument was barred as res judicata, but
determines that the trial court was nonetheless correct in dismissing the claim. I disagree
with this finding.
{¶93} In reaching the conclusion that the trial court committed no error by
dismissing this claim, the majority first references State v. Holloman, 10th Dist. Franklin
No. 06AP-608, 2006-Ohio-6789, ¶ 9, which cites to State v. Kapper, 5 Ohio St.3d 36,
37-38, 448 N.E.2d 823 (1983), for the proposition that, generally, evidence consisting of
only a petitioner’s self-serving affidavit does not require the trial court to conduct a
hearing on the matter. While Holloman does state this proposition, it does so in the
context of setting forth various reasons why a court may refuse to grant a hearing for a
postconviction petition, see id. at ¶ 8-10. And Holloman’s citation to Kapper is
misplaced because Kapper dealt with a postconviction relief petition that set forth claims
with no supporting evidence like an affidavit. See id. at 38 (“we hold that a petition * *
* is subject to dismissal without a hearing when the record * * * indicates that the
petitioner is not entitled to relief and that the petitioner failed to submit evidentiary
documents containing sufficient operative facts.”). Such is not the case here.
{¶94} Jackson’s affidavit specifically avers that his trial counsel told him that if he
waived a jury trial, he would not get the death penalty. This sworn statement is enough
to warrant a hearing. There is nothing in the record to rebut Jackson’s affidavit,
including his signed waiver. Although the signed waiver was sufficient to demonstrate
that Jackson knew and understood the rights he was giving up and that no threats or
promises were made to induce him to waive his right to a jury trial, such an
acknowledgment does not account for what his trial counsel stated to him about the death
penalty if his averments are true.
{¶95} Regarding the credibility of Jackson’s averments, the trial court did not find
that Jackson’s affidavit lacked credibility. When referencing certain grounds for relief
including the issue discussed herein, the trial court in its journal entry states, “[t]o the
extent these grounds for relief make reference to new evidence introduced with the
petition, the court finds the new evidence only marginally significant to, and not
supportive of, the claims made.”
{¶96} Jackson’s guilt for killing Tracy Pickryl was never at issue. The defense
resources in this case, as with many capital cases, were devoted to mitigation for the
sentencing phase: to avoid the death penalty. With Jackson being sentenced to the
ultimate punishment for his crime, the claims he makes in his affidavit regarding his trial
counsel’s statements warrant a hearing. I therefore dissent from the conclusion that the
trial court properly dismissed this ground of Jackson’s petition.