Jells v. Mitchell

On April 18, 1987, at about 10:30 to 11:00 p.m., the victim Ruby Stapleton and her four-year-old son Devon Stapleton were kidnapped in front of several witnesses at the intersection of Lakeview and Euclid Avenues in Cleveland. Three witnesses to the kidnapping and Devon identified appellant Reginald Jells as the kidnapper. Also, the witnesses identified the victim as the woman the appellant picked up and threw into a van. Moreover, the witnesses identified the van used by the appellant during the kidnapping.

Owen Banks, a witness to the abduction, testified that while he was a passenger in a car driven by his daughter, Camila Banks, he heard a woman's screams and saw the victim and appellant "tussling." He also noted that the van used to abduct the victim and her child had a sign which read "Keep on Trucking," although the van which was linked to the appellant was found to display a sign which read "Keep on Vannin." During the abduction, Owen jumped out of the car and told his daughter to write down the license plate number of the van because he "sensed something was wrong." Furthermore, Owen observed appellant pick up a littlePage 485boy, later identified as Devon, and put him into the van.

Owen approached appellant, who told him that the victim was drunk. Owen stated that he had a good look at appellant, since Owen was at the driver's side of the van looking straight at him. At trial, Owen identified a photograph of the victim as the person who was struggling with appellant, and identified appellant as the perpetrator.

Camila Banks, another witness to the abduction, testified that she was driving her father home when she heard a woman screaming "help me." She observed the appellant as he dragged a woman, whom she later identified as the victim, to the van and "shoved her inside." Next, she saw appellant pick up a little boy (Devon) and put him inside the van. Camila testified that the woman was trying to fight off the man.

Camila recorded the license number of the van, "149 MJV." Although the license number was listed in the name of "Reginald Gills," appellant later acknowledged ownership of the van. At trial Camila identified the van from a photograph, and she identified the appellant as the kidnapper.

Edward Wright, a third witness to the abduction, testified that at about 11:00 p.m., as he was concluding his shift as a security guard at Hough Bakery, he heard a woman scream. He walked to where he heard the screaming and observed a man with his arm around the waist of the screaming woman. He then saw the man throw the woman and the child into the van. Wright gave the Cleveland police a partial license number, "Y 169 or 165." He was able to pick the appellant out of a lineup, and identify him at trial. Further, he identified Devon Stapleton and a photo of the victim.

The testimony of Devon Stapleton, the son of the victim, indicates that he and his mother had entered appellant's van and later they exited the van. It is not clear from his testimony exactly how they initially came to be in the van or how they later came to be out of the van at Lakeview and Euclid Avenues. He further testified that appellant put Devon's mother back into the van, and that while they were in the van appellant hit the victim on the right side of her face with a circular object, causing her to bleed. Devon also stated that his mother was knocked out by the blows. As a result of the attack upon his mother, the hood and sleeve of Devon's coat were wet with blood.

Devon explained that appellant took his mother to a junkyard. There appellant removed his mother's body from the van, carried her into the junkyard, and abandoned her. Then appellant drove to a gas station, purchased gas, and dropped off Devon at another junkyard. Later, Clyde Smith found Devon at this junkyard crying for his mother, so he picked him up and took him to his house and called the police.

On April 26, 1987, appellant was arrested by Cleveland police. The van was identified by the license plate number that was given to police by Camila Banks. An examination of the van revealed appellant's fingerprints. A transmission jack found in the van matched marks found on the victim's body. A tennis shoe print was found on the inside of the van's windshield. The shoe print was compared with the victim's left tennis shoe and was believed to have been made by the shoe.

On April 28, 1987, an off-duty Cleveland police officer found the victim's body partially concealed by a barrel in a junkyard at East 84th and Grand AvenuePage 486in Cleveland. The body was partially nude with the pants and panties pulled down and the blouse in disarray.

A piece of cardboard with a muddy shoe print was found near the body. The shoe print matched appellant's right shoe.

The coroner testified that the victim died as a result of multiple blunt impacts to the head, neck, trunk and extremities with multiple injuries to the brain and other internal organs. Altogether the victim suffered over ninety separate blows to her body.

AEDPA prohibits a federal court from granting a writ of habeas corpus to a person in custody pursuant to a state court judgment with respect to a claim that was adjudicated on the merits in state court unless the adjudication of that claim —

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

Petitioner next asserts that his trial counsel were ineffective in failing to introduce evidence regarding his troubled family and early life and in failing to utilize expert assistance.

As an initial matter, we "must recognize that trial counsel is afforded broad authority in determining what evidence will be offered in mitigation."Statev. Frazier(1991),61 Ohio St.3d 247,255,574 N.E.2d 483. We also reiterate that post-conviction proceedings were designed to redress denials or infringements of basic constitutional rights and were not intended as an avenue for simply retrying the case.Laugensen[Laugesen] v. State, [(1967),11 Ohio Misc. 10,227 N.E.2d 663] supra;State v. Lott, [(Nov. 3, 1994), Cuyahoga App. Nos. 66338, 66389, 66390,1994 WL 615012] supra. Further, the failure to present evidence which is merely cumulative to that which was presented at trial is, generally speaking, not indicative of ineffective assistance of trial counsel.State v. Combs(1994),100 Ohio App.3d 90,105,652 N.E.2d 205.

In this matter, the mitigation presented at trial tended to focus upon petitioner's loving behavior to his family, his good behavior at school, his obedience to authority and his teachers, his strong work ethic, and his tendency to walk away from an argument. In addition, trial counsel indicated that petitioner's family had moved many times, and also presented expert opinion evidence that petitioner was of borderline intelligence and over-controlled his hostility. Finally, petitioner presented an unsworn statement in which he emphasized his work ethic, his empathy for Devon, his sadness at the tragic manner in which Stapleton must have met her death, and his disagreement with the verdict reached by the panel. Further, in its written opinion, the three judge panel observed that petitioner had presented evidence of,inter alia, character, family relationships, employment history, and emotional stability.

Examining the evidence now offered de hors the record, we find that a certain measure of the evidence which petitioner now claims should have been admitted to be cumulative of what was presented at trial, i.e., the frequent moves, change of caregivers, borderline intelligence, superficial personality style. We are therefore unable to conclude that there is a reasonable probability that, but for this alleged omission of counsel, the result of his trial would have been different, and petitioner's challenge to the effectiveness of counsel in this respect fails.SeeSowell, supra, at 681,598 N.E.2d 136.

As to the remaining items concerning the other more tragic circumstances which petitioner now claims should have been admitted, i.e., his mother's alcoholism and the abuse which he often witnessed, this information would appear toPage 490be completely inconsistent with the favorable portrait of petitioner which counsel presented at trial. That is, trial counsel emphasized the favorable aspects of petitioner's life and chose to present him as someone who over controlled his negative feelings and had "no pathological difference" or "condition requiring treatment or * * * thought disorder." (Tr. 584) Considered in light of the nature of petitioner's defense at trial, we are compelled to conclude that the more negative information produced in connection with the amended petition for post-conviction relief is inconsistent with the essential trial strategy of working to establish reasonable doubt and in turn residual doubt that petitioner committed these offenses. We are therefore unable to conclude that counsel was ineffective in failing to present this information. AccordState v. Combs(1994),100 Ohio App.3d 90,103,652 N.E.2d 205wherein the court stated:

A post conviction petition does not show ineffective assistance merely because it presents a new expert opinion that is different from the theory used at trial.State v. Jamison(Nov. 10, 1992), Hamilton App. No. C-910736,1992 WL 333011. The affidavits of Keefe and Smith presented mitigation theories that were no more than alternative or cumulative to the theories used by Fisher. Therefore, they do not support substantive relief under either prong of theStrickland-Lockhart-Bradleytest.

AccordState v. Lott, supra;State v. Williams(1991),74 Ohio App.3d 686,695,600 N.E.2d 298(rejecting the argument that trial counsel was ineffective by failing to put forth mitigation evidence on that defendant's troubled childhood). Indeed, social worker Linda Pudvan's averment that even negative family history is relevant to provide an "explanation of Mr. Jells life and behavior during his offense" and attorney Ken Murray's averment that unfavorable information "further serves to explain the stresses and traumatic events that culminated the night of the offense" seem odd in light of the complete denial presented at trial.

A convicted defendant's claim that counsel's assistance was so defective as to require reversal of a conviction or death sentence has two components. First, the defendant must show that counsel's performance was deficient. This requires showing that counsel made errors so serious that counsel was not functioning as the "counsel" guaranteed the defendant by the Sixth Amendment. Second, the defendant must show that the deficient performance prejudiced the defense. This requires showing that counsel's errors were so serious as to deprive the defendant of a fair trial, a trial whose result is reliable. Unless a defendant makes both showings, it cannot be said that the conviction or death sentence resulted from a breakdown in the adversary process that renders the result unreliable.

[S]trategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable; and strategic choices made after less than complete investigation are reasonable precisely to the extent that reasonable professional judgments support the limitations on investigation. In other words, counsel has a duty to make reasonable investigations or to make a reasonable decision that makes particular investigations unnecessary. In any ineffectiveness case, a particular decision not to investigate must be directly assessed for reasonableness in all the circumstances, applying a heavy measure of deference to counsel's judgments.

[T]he mitigation presented at trial tended to focus upon petitioner's loving behavior to his family, his good behavior at school, his obedience to authority and his teachers, his strong work ethic, and his tendency to walk away from an argument. In addition, trial counsel indicated that petitioner's family had moved many times, and also presented expert opinion evidence that petitioner was of borderline intelligence and over-controlled his hostility. Finally, petitioner presented an unsworn statement in which he emphasized his work ethic, his empathy for Devon, his sadness at the tragic manner in which Stapleton must have met her death, and his disagreement with the verdict reached by thePage 499panel. Further, in its written opinion, the three judge panel observed that petitioner had presented evidence of,inter alia, character, family relationships, employment history, and emotional stability.

Petitioner Jells' right to due process was violated because the States withheld material impeachment and exculpatory evidence from him during his 1987 capital trial.

Petitioner's trial counsel filed a pretrial request for discovery. [] Pursuant to the due process clause of the Fourteenth Amendment, the prosecutor had a duty to disclose all material exculpatory and impeachment evidence in accordance with Petitioner's request for discovery.See Brady v. Maryland,373 U.S. 83[83 S.Ct. 1194,10 L.Ed.2d 215] (1963).See alsoOhio R.Crim. P. 16.

Petitioner made a public records request on post-conviction. Exhibit AAA [which includes requests for the disputedBradydocuments]. Only then did the State fulfill its constitutional duty to provide material impeachment and exculpatory evidence.SeeBrady,373 U.S. 83[83 S.Ct. 1194]. During post-conviction, Petitioner obtained documents that should have been provided at the time of Petitioner's discovery request.SeeExhibit CCC, Exhibit AAA, Series 1-25 [which includes the disputedBradydocuments].

Petitioner asserts that his counsel informed him that a three judge panel would be best for him because of the pretrial publicity surrounding Stapleton's death and because of Devon's testimony. He further asserts that his counsel never informed him that, inter alia, the three judge panel would also hear the mitigation phase, that if the matter were tried to a jury, all twelve members of the jury would have to agree to convict and sentence him, that a reviewing court would apply a presumption of correctness when reviewing certain errors. He avers, however, that his attorneys "felt that a three judge panel would be best in my case because they felt that a three judge panel would not give me a sentence of death." Amended Petition for Post-Conviction Relief, Exhibit S.

We find that this decision was a strategic choice. AccordState v. Woods(March 5, 1997), Medina App. No. 2589-M [1997 WL 104634], unreported. Moreover, the court examined a similar argument inState v. Sowell(1991),73 Ohio App.3d 672,683,598 N.E.2d 136, and stated:

In his twenty-ninth cause of action, the only cause of action not heretofore addressed, Sowell challenges the knowing and intelligent nature of his waiver of a jury trial. Sowell offered in support of this contention his own affidavit, in which he averred that he executed the waiver upon trial counsel's representation that a trial before a three-judge panel would not result in the imposition of the death penalty. Sowell's "self-serving" affidavit is not, however, sufficient to rebut the record before us, which contains Sowell'sPage 509written waiver in which he stated that he "knowingly, intelligently and voluntarily waive[d] and relinquish[ed] his right to a trial by Jury * * *."See Jackson, supra. Sowell was, therefore, not entitled to an evidentiary hearing on the challenge advanced in his twenty-ninth cause of action when he failed to sustain his initial burden of demonstrating substantive grounds for relief.

See State v. Kapper(1983),5 Ohio St.3d 36,448 N.E.2d 823. Upon our determination that Sowell's petition was subject to dismissal without an evidentiary hearing, we overrule the first assignment of error.

In any event, petitioner has not demonstrated how this decision resulted in prejudice to him. He does not show, and we cannot say, that had this case been tried to a jury, the result would have been different. AccordState v. Woods, supra.

A defendant, therefore, should have both the mental ability and some knowledge of the jury trial right before he is allowed to waive it. A technical knowledge of the jury trial right, however, is not what is required. A defendant is sufficiently informed to make an intelligent waiver if he was aware that a jury is composed of 12 members of the community, he may participate in the selectionPage 510of the jurors, the verdict of the jury must be unanimous, and that a judge alone will decide guilt or innocence should he waive his jury trial right.

Appellant in his fifth proposition of law alleges that the lineup shown to witness Edward Wright was unduly suggestive and inherently unreliable. Appellant bases this proposition on the fact that, while the other men in the lineup were wearing street clothes, appellant was wearing prison garb, i.e., a jump-suit.

InState v. Skeardon(1972),31 Ohio St.2d 20,60 O.O.2d 11,285 N.E.2d 335, paragraph two of the syllabus, this court held with respect to police lineups that:

"The due process clause of the Fifth and Fourteenth Amendments forbids any pre- or post-indictment lineup that is unnecessarily suggestive and conducive to irreparable mistaken identification.* * *"

See, also, Kirby v. Illinois(1972),406 U.S. 682,92 S.Ct. 1877,32 L.Ed.2d 411. A reviewing court should examine the factors surrounding the actual eyewitness incident to determine whether the witness is susceptible to suggestion which would lead to an irreparable, mistaken identification.See Neil v.Biggers, supra.

In the case sub judice Wright was able to describe the clothes that Devon and the victim wore. Wright was able to recognize that appellant's hair in court was shorter than it had been at the scene of the kidnapping. In applying theBiggersfactors . . ., we find that Wright had ample opportunity to independently observe and identify appellant. Furthermore, he unequivocally displayed his ability to identify the defendant based on his recollection of the defendant's conduct. Accordingly, this proposition of law is not well-taken.

[T]he factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the criminal at the time of the crime, the witness' degree of attention, the accuracy of the witness' prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and confrontation.