State v. Gillard

[This opinion has been published in Ohio Official Reports at 

.]




            THE STATE OF OHIO, APPELLEE, v. GILLARD, APPELLANT.
                      [Cite as State v. Gillard, 

.]
Criminal law—Aggravated murder—Death penalty—Trial errors that are either
        harmless or waived by effective counsel are not mitigating factors under
        R.C. 2929.04(B)(7)—Death penalty upheld after remand for limited
        purpose of evidentiary hearing on possible conflict of interest—Supreme
        Court retains jurisdiction.
Trial errors that are either harmless or waived by effective counsel are not
        mitigating factors under R.C. 2929.04(B)(7).
       (No. 96-221—Submitted January 21, 1997—Decided June 11, 1997.)
     APPEAL from the Court of Appeals for Stark County, Nos. CA-6701 and
                                        95CA0257.
                                  __________________
        {¶ 1} We have considered various issues in this capital case on two prior
occasions and provided detailed accounts of its facts and procedural history at each
opportunity. State v. Gillard (1988), 

, 

 (“Gillard
I”), and State v. Gillard (1992), 

, 

 (“Gillard II”).
For that reason, we provide only a brief procedural history here.
        {¶ 2} In Gillard I, we reinstated appellant’s convictions for the aggravated
murders of Denise Maxwell and Leroy Ensign, and for the attempted aggravated
murder of Ronnie W. Postlethwaite. 

, 

.
We also remanded the cause to the court of appeals to conduct its independent
review of the appropriateness and proportionality of appellant’s death sentence.
Thereafter, the court of appeals affirmed the death sentence, and appellant again
appealed to this court. See State v. Gillard (June 25, 1990), Stark App. No. CA-
6701, unreported.
                             SUPREME COURT OF OHIO




       {¶ 3} In Gillard II, we remanded the cause to the trial court with instructions
to conduct a hearing to determine whether an actual conflict of interest existed in
trial counsel’s representation of appellant. 

, 

.
We also ordered the trial court to conduct a new trial if it found that an actual
conflict existed. After a hearing, the trial court determined that there was no
conflict of interest and returned the matter to this court pursuant to our original
remand. Accordingly, we resume our review of this cause.
                               __________________
       Robert D. Horowitz, Stark County Prosecuting Attorney, and Ronald Mark
Caldwell, Assistant Prosecuting Attorney, for appellee.
       David H. Bodiker, Ohio Public Defender, Michael J. Benza and Cynthia
Yost, Assistant State Public Defenders, for appellant.
                               __________________
       COOK, J.
       {¶ 4} 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), 

, 143, 

.
       {¶ 5} 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.




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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.
         {¶ 6} 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. 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.
         {¶ 7} 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), 

, 

.
         {¶ 8} 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


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),

, 

.




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         {¶ 9} 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), 

, 

; State v. Allen (1995), 

, 

. 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
         {¶ 10} 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.
         {¶ 11} 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, cocounsel 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.
         {¶ 12} 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




                                          4
                                        January Term, 1997




findings for lack of jurisdiction. State v. Gillard (Dec. 13, 1995), Stark App. No.
95CA0257, unreported.
                                    A. Procedural Challenges
         {¶ 13} 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



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.”
APPENDIX
           “Proposition of Law No. I [:] A decision by a court of common pleas after the remand by
an appellate court is reviewable by the court of appeals.
            “Proposition of Law No. II [:] The failure of a trial court to hold a hearing into the conflict
of interest mandates reversal of the convictions and sentences.
           “Proposition of Law No. III [:] Joint representation of a defendant and a potential
defendant constituted an actual conflict of interest mandating reversal of the conviction and
sentence.
           “Proposition of Law No. IV [:] When a defense attorney labors under an actual conflict of
interest the error is a fundamental and structural error which is not susceptible [of] harmless error
review.
           “Proposition of Law No. V [:] When a hearing court fails to review the entire record on
the trial, the factual conclusions of the trial court are unreliable and not binding on the reviewing
court.
           “Proposition of Law No. VI [:] A capital defendant’s convictions and sentences are
unreliable and inappropriate when he is denied the effective assistance of counsel, in violation of
the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution and Article
I, Sections 2, 9, 10, and 16 of the Ohio Constitution.
           “Proposition of Law No. VII [:] Appellant Gillard was denied the effective assistance of
appellate counsel in violation of the Sixth, Eighth, and Fourteenth Amendments to the United States
Constitution, and Sections 10 and 16, Article I of the Ohio Constitution.
           “Proposition of Law No. VIII [:] When counsel fails to investigate and present mitigating
evidence and labors under a conflict of interest, the defendant is denied effective assistance of
counsel in violation of his constitutional rights as guaranteed by the Fifth, Sixth, Eighth and
Fourteenth Amendments to the United States Constitution and Article I, Sections 2, 9, 10, and 16 of
the Ohio Constitution.
           “Proposition of Law No. IX[:] The prosecutor’s misconduct in the trial phase of John
Gillard’s capital case denied Mr. Gillard his due process right to a fair trial.




                                                         5
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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


           “Proposition of Law No. X[:] When the appearance of judicial bias and impropriety are
present a defendant is denied a fair trial, in violation of the Fifth, Eighth, and Fourteenth
Amendments to the United States Constitution and Article I, Sections 2, 5, 9, and 16 of the Ohio
Constitution and Canon 3 of the Code of Judicial Conduct.
           “Proposition of Law No. XI[:] The trial court procedures at all stages of appellant Gillard’s
trial violated his rights of due process and to a reliable determination of the appropriateness of the
death sentence in violation of the Fifth, Sixth, Eighth and Fourteenth Amendments to the United
States Constitution and Sections 9, 10 and 16, Article I, of the Ohio Constitution.
           “Proposition of Law No. XII[:] When a trial court releases grand jury transcripts to the
state to aid in preparation of an appeal, the court must release the transcripts to the defense and make
the transcripts a part of the record on appeal.
           “Proposition of Law No. XIII[:] The evidence in appellant Gillard’s case was not sufficient
to support his convictions under the Eighth and Fourteenth Amendments to the United States
Constitution and Sections 9 and 16, Article I of the Ohio Constitution.
           “Proposition of Law No. XIV[:] Appellant Gillard’s rights under the Fifth, Sixth, Eighth,
and Fourteenth Amendments to the United States Constitution and Sections 9, 10, and 16[,] Article
I of the Ohio Constitution were violated when the trial court reimposed the death penalty at the
resentencing hearing.
           “Proposition of Law No. XV[:] The death sentence is inappropriate and unreliable when
voir dire errors deny a capital defendant his right to a fair trial and a fair jury, in violation of the
Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I,
Sections 2, 5, 9, 10, and 16 of the Ohio Constitution.
           “Proposition of Law No. XVI[:] The death sentence imposed on appellant Gillard is
unreliable, inappropriate and violates the Eighth and Fourteenth Amendments to the United States
Constitution, Section[s] 9 and 16, Article I of the Ohio Constitution and O.R.C. Sec. 2929.05.
           “Proposition of Law No. XVII[:] Appellant Gillard’s death sentence was disproportionate
and violated the Fifth, Eighth and Fourteenth Amendments to the United States Constitution and
Sections 9 and 16, Article I of the Ohio Constitution.
           “Proposition of Law No. XVIII[:] A capital defendant’s death sentence is unreliable and
inappropriate when he is denied the procedural safeguard of a meaningful, independent review by
the trial court under the Fifth, Eighth and Fourteenth Amendments to the United States Constitution,
Sections 9 and 16, Article I of the Ohio Constitution, O.R.C. Sec. 2929.03(F) and O.R.C. Sec.
2929.05.
           “Proposition of Law No. XIX[:] A capital defendant’s death sentence is unreliable and
inappropriate when he is denied the procedural safeguard of a meaningful, independent review by
the appellate court under the Fifth, Eighth and Fourteenth Amendments to the United States
Constitution, Sections 9 and 16, Article I of the Ohio Constitution, O.R.C. Sec. 2929.03(F) and
O.R.C. Sec. 2929.05.
           “Proposition of Law XX[:] The Fifth, Sixth, Eighth, and Fourteenth Amendments to the
United States Constitution and Sections 2, 9, 10, and 16, Article I of the Ohio Constitution establish
requirements for a valid death penalty scheme. Ohio Revised Code Sections 2903.01, 2929.02,
2929.021, 2929.022, 2929.023, 2929.03, 2929.04 and 2929.05, Ohio’s statutory provisions
governing the imposition of the death penalty, do not meet the prescribed constitutional
requirements and are unconstitutional, both on their face and as applied to appellant Gillard.”




                                                   6
                                  January Term, 1997




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), 

, 

 (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-whileretaining-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.
        {¶ 14} 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.
        {¶ 15} In support of his argument, appellant cites Wood v. Georgia (1981),

, 

, 

, 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. 

, 

, 

.
        {¶ 16} Additionally, the United States Constitution is violated by an actual
conflict of interest, not a possible one. Cuyler v. Sullivan (1980), 

, 

, 

; State v. Manross




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                               SUPREME COURT OF OHIO




(1988), 

, 

. 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), 

; United
States v. Winkle (C.A.10, 1983), 

; Bonin v. Vasquez
(D.C.Cal. 1992), 

. Appellant’s second proposition of
law is overruled.
        {¶ 17} 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, 

, 

,

; Winkler v. Keane (C.A.2, 1993), 

. 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), 

. We find no
clear errors in the trial judge’s findings. Appellant’s fifth proposition of law is
overruled.




                                             8
                                January Term, 1997




                                      B. Merits
       {¶ 18} 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, 

, 

, 

.
       {¶ 19} 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), 

, 

, 275-276, quoting Cuyler, 

, 

, 

. 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, 

, 

, 

; see, also, Winkler, 

. 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, 

, 

.
       {¶ 20} 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




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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.
       {¶ 21} 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), 

;
see, also, Gambino, 

; Winkler, 

.
       {¶ 22} 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’ 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.
       {¶ 23} 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.




                                          10
                                January Term, 1997




       {¶ 24} 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.
       {¶ 25} 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, i.e., none of the
evidence implicating William either negated appellant’s involvement or
strengthened his alibi.
       {¶ 26} 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.”
       {¶ 27} 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




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police as the shooter. Naturally, Postlethwaite’s identification testimony and his
credibility were crucial to the interests of both appellant and his brother.
        {¶ 28} 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
idenitification 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.
        {¶ 29} 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, 

. We find here that Martinez labored
under a coincidence of interests rather than an actual conflict of interests.
        {¶ 30} 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




                                          12
                                  January Term, 1997




of interest was not in the presentation of the defense, but rather in the initial
selection of the defense to present.”
        {¶ 31} In accordance with the above, we overrule appellant’s third, fourth,
and eighth propositions of law.
                                          II
                            INDEPENDENT REVIEW
        {¶ 32} 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
        {¶ 33} Appellant’s four convictions of aggravated murder must merge into
two, since he killed two victims. State v. Huertas (1990), 

, 

. 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, 

; 

, 

.
        {¶ 34} 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.
        {¶ 35} 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




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which Postlethwaite was able to see came from another room; Postlethwait 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.
       {¶ 36} 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.
       {¶ 37} 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.
       {¶ 38} 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.




                                          14
                                January Term, 1997




       {¶ 39} 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.
       {¶ 40} 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.
       {¶ 41} 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).
       {¶ 42} 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), 

, 

, 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.




                                              15
                            SUPREME COURT OF OHIO




                                B. Proportionality
       {¶ 43} 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
OBR 190, 

; State v. Frazier (1991), 

, 

; State v. Combs (1991), 

, 

; State v. Davis
(1991), 

, 

. The sentence is also proportionate
when compared with other aggravated burglary-murder cases. See State v. Wiles
(1990), 

, 

; State v. Waddy (1992), 

, 

.      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
       {¶ 44} 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), 

,

; State v. Garner (1995), 

, 

.
       {¶ 45} 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.




                                        16
                                 January Term, 1997




                                __________________
        LUNDBERG STRATTON, J., dissenting.
        {¶ 46} I believe an actual conflict of interest existed that adversely affected
the performance of John Gillard’s lawyer. Consequently, Gillard was denied his
constitutional right to effective assistance of counsel and his conviction should be
reversed. Therefore, I respectfully dissent.
        {¶ 47} The trial court’s initial failure to conduct a hearing on the issue of
conflict of interest does not mandate reversal. John Gillard’s attorney, Louis
Martinez, never directly raised the issue of conflict of interest on behalf of John
before the trial court. Instead, the state raised the issue when William was called
to testify on his brother’s behalf and the state requested the court to advise William
of his Fifth Amendment right to remain silent. This was not the equivalent of an
objection on behalf of John. Although the trial court appointed other counsel for
the limited purpose of advising William of his rights, Martinez represented William
at least until he testified at John’s trial. State v. Gillard (1992), 

, 

.
        {¶ 48} A court is not required to sua sponte raise the issue of conflict of
interest.
        {¶ 49} A better practice would have been for the trial court to stop the
proceedings and to inquire into the potential of a conflict of interest. The fact that
Martinez was later unable to testify for medical reasons at the remand hearing
further underscores the importance of the timeliness of an inquiry. However, if a
conflict is not raised, or inquired into, in such a hearing, a judgment will be reversed
only if an appellant shows that an actual conflict adversely affected counsel’s
representation of the appellant. State v. Manross (1988), 

, 

; Hamilton v. Ford (C.A.11, 1992), 

.
        {¶ 50} I believe that the evidence clearly shows that an actual conflict of
interest existed because Martinez represented both John Gillard and his brother,




                                               17
                               SUPREME COURT OF OHIO




William, who was implicated in these crimes. Although John and William were
not defendants in the same case, William had been originally charged with these
murders and the attempted murder. William, represented by Martinez, later pleaded
no contest to discharging a firearm within city limits. An ongoing investigation
into these crimes continued during John’s trial and William remained the subject of
the investigation. Some two and one-half years later, William agreed in a plea
agreement to testify against his brother in a retrial in exchange for a
recommendation of early release following a guilty plea and sentencing for the
aggravated burglary of the Hendricks home.
       {¶ 51} Because Martinez represented both brothers, the choices he made
before and during John’s trial lead to the inescapable conclusion that Martinez was
hampered by divided loyalties that adversely affected his performance.            The
evidence clearly shows that Martinez’s joint representation of John and William
influenced his selection of witnesses, his overall defense strategy, and his ability to
zealously represent the interests of John. The United States Supreme Court has held
that once a conflict of interest that has adversely affected the lawyer’s performance
is identified, prejudice to the defendant is presumed. Cuyler v. Sullivan (1980), 

, 

, 

.
       {¶ 52} There is abundant testimony in the record that clearly incriminated
William Gillard. Professor Kirkwood testified at the remand hearing that the
following pieces of circumstantial evidence connected William to these crimes:
•   William was at the house the night the murders occurred and had been in a fight
    with one of the victims.
•   William was carrying brass knuckles.
•   William was forcibly removed from the house.
•   William later returned to the house and fired a gun outside shortly before the
    murders occurred.




                                          18
                               January Term, 1997




•   William fled the scene and was arrested four hours after the shootings.
•   William gave the police a false name when he was arrested.
•   Blood consistent with that of victim Denise Maxwell was found on William’s
    shirt, and blood from victim Leroy Ensign was found on William’s jacket.
•   A bullet that matched the type of bullets from the murder weapon was found
    on William.
       {¶ 53} Martinez’s trial strategy was to establish an alibi defense for John.
However, based upon the compelling evidence presented at trial, there existed a
plausible defense that implicated William as a substitute or alternate defendant.
Instead of bolstering John’s alibi with an alternate defendant defense, Martinez
decided to rely solely on the alibi defense. Martinez did not and could not consider
this alternative defendant theory or even a combination of the alibi/alternative
defendant theory because he represented William as well as John. Where the
attorney’s choice of strategy would have been different had there been separate
representation, the attorney renders ineffective assistance of counsel. Griffin v.
McVicar (C.A.7, 1996), 

.
       {¶ 54} Further evidence of an actual conflict of interest is demonstrated by
Martinez’s direct examination of William, who testified on behalf of his brother.
A conflict of interest may arise when counsel representing two defendants must
decide whether either or both of the defendants should testify. “This kind of
decision, difficult enough where two defendants at the same trial are represented
by different counsel, is made doubly difficult where they are represented by the
same counsel.” Morgan v. United States (C.A.2, 1968), 

. This
decision “may be unduly affected by the risk that [one defendant’s] testimony may
develop so as to disclose matters which are harmful to the other defendant or which
conflict with the other defendant’s story. The attorney’s freedom to cross-examine




                                            19
                             SUPREME COURT OF OHIO




one defendant on behalf of another will be restricted where the attorney represents
both defendants.” 

       {¶ 55} Here, although William was not a defendant in this case, his actions
were so intertwined in the facts of the case that Martinez was tactically unable to
fully examine William to extract testimony helpful to John because it would also
tend to incriminate William. The majority finds that this choice of strategy was not
prejudicial because the dangers of pursuing the alternative defendant theory could
have had an adverse impact on John. However, the court in United States v.
Carrigan (C.A.2, 1976), 

, stated:
       “We cannot accept the proposition that the more potent the Government’s
case, the less compelling the criminal defendant’s constitutional right to
independent counsel. … Trial counsel could not possibly have given his full
measure of professional devotion to clients presenting inconsistent defenses. Each
was entitled to zealous and independent counsel. While here counsel obviously
slighted White [one client] and favored Carrigan [his other client], he could not
fully exploit Carrigan’s willingness to testify without further damaging White’s
credibility. We see no need to speculate as to how independent counsel could have
more competently handled the defense of either defendant. The record discloses
the sharp conflict in their positions which, in the nature of things, prejudiced each
even if one was apparently less disadvantaged than the other.”
       {¶ 56} Here, Martinez clearly did not vigorously pursue an allegation that
William was the participant in the murders and that John had an alibi, because this
would prejudice his own client, William.
       {¶ 57} The majority reasons that if William had taken the fall, so would
John by association. This “united we stand, divided we fall” approach was rejected
in Foxworth v. Wainwright (C.A. 5, 1975), 

, because, the court
concluded, the conflict occurs not in presenting the defense chosen by counsel but
in selecting defenses and strategies in the first place. The Foxworth court stated:




                                         20
                               January Term, 1997




       “Under these circumstances, counsel’s choice of the ‘united we stand,
divided we fall’ defense was not a free choice of strategy. It was the only course
open to an attorney with the unenviable task of saving three boys from the electric
chair. ‘It must be remembered that in cases involving conflicts of interest, the
conflict does not always appear full-blown upon the record, since counsel may
throughout endeavor to reconcile the conflict.’” (Emphasis added.) 

. The Foxworth court reasoned that had counsel represented one
defendant only, counsel could have more fully cross-examined prosecution
witnesses on their testimony to inculpate the co-defendant, but that was not an
avenue open because of counsel’s joint representation. 

.
       {¶ 58} As was the case in Foxworth, I believe Martinez was so hindered by
the joint representation that he also failed to effectively cross-examine other
witnesses. Ron Postlethwaite, one of the victims, testified that he had heard
gunshots in the backyard and saw William shoot a gun into the air. Postlethwaite
then went back to sleep. Postlethwaite also testified that there was a third party
present that evening, Timothy Foehrenbach.            Martinez did not pursue
inconsistencies in Postlethwaite’s testimony regarding mistaken identity, his
demeanor when police and emergency personnel arrived, and his failure to identify
John to the paramedics who treated him at the scene. Paramedics noted that
Postlethwaite was oriented, yet a police officer on the scene described him as
“raving.” A thorough cross-examination of Postlethwaite and other prosecution
witnesses to emphasize William’s presence at the scene would have strengthened
John’s alibi defense and could have established sufficient reasonable doubt in the
jury’s mind as to the guilt of John. However, because of the joint representation,
Martinez did not, and could not, pursue questioning that would have implicated
William which, at the same time, would have exonerated John.
       {¶ 59} The case of Griffin v. McVicar, (C.A.7, 1996), 

, is
particularly on point. In Griffin, defense counsel represented two defendants,




                                            21
                              SUPREME COURT OF OHIO




Griffin and Smith, who were both charged with the murder of three individuals and
an attempt to murder a fourth. Counsel presented a joint alibi defense. His main
strategy was to discredit the eyewitness identifications of both defendants.
        {¶ 60} While eyewitness testimony consistently implicated Griffin’s co-defendant, there were significant contradictions in the testimony implicating
Griffin. 

. Griffin asserted that he was denied effective assistance of
counsel. Griffin claimed that his attorney failed to present the alternative defense
that Griffin was merely a nonparticipating bystander, that his attorney was unable
to emphasize testimony that would exonerate Griffin at the expense of Smith, and
that his attorney failed to pursue lines of inquiry to aid Griffin at the expense of his
co-defendant. Griffin claimed that, instead, his attorney’s defense strategy was
highly prejudicial to Griffin.
        {¶ 61} As to ineffective assistance of Griffin’s counsel, the Seventh Circuit
cited conclusions reached by the state court of appeals in the same case:
        “‘As it was, [the attorney] only pointed to the inconsistencies and
ambiguities as matters going to the credibility of the State’s witnesses. Counsel
could not give Griffin the best possible defense under the circumstances because to
do so would have been disloyal to Smith, his original client. Because of this conflict
of loyalties, he remained silent when independent counsel would have spoken out
on Griffin’s behalf.’” 

, quoting People v. Griffin (1984), 

, 

.
        {¶ 62} The Seventh Circuit affirmed the grant of Griffin’s petition for writ
of habeas corpus. The court found that a conflict of interest existed on the basis
that Griffin’s counsel had failed to discuss with him the likely untruth of his alibi
and the near certainty it would not be believed by a jury. This, coupled with the
failure to assert an alternate defense that could rest on the weaknesses and
contradictions in the testimony that implicated him in this shooting, left Griffin with




                                          22
                                January Term, 1997




the task of refuting the evidence against both defendants as well as to establish an
alibi on behalf of both of them. The Griffin court reasoned:
       “In the face of the uncontradicted evidence placing Smith at the scene
during the shootings, Griffin’s testifying to an alibi which involved Smith could do
nothing but damage his own case. While a defense based on simply raising doubts
about the credibility of the testimony implicating Griffin in the shootings might
well have been unsuccessful, the joint alibi defense was nearly as weak as no
defense at all. There was only the slimmest chance, if any, that a jury would believe
the alibi in the face of the consistent eyewitness testimony placing Griffin and
Smith at the scene of the murders. On the other hand, an attorney representing only
Griffin could have impeached the identifications of Griffin as a shooter by
exploiting obvious inconsistencies in testimony. The joint representation prevented
[Griffin’s counsel] from exploiting the disparity in strength of the respective
prosecution cases again Griffin and Smith.
       “ … It is often the unenviable job of defense counsel to choose among
unpromising defenses. However, when an actual conflict of interest due to joint
representation constrains an attorney to choose the hopeless in favor of the
unpromising, the defendant has received ineffective assistance of counsel.” Id. at
890.
       {¶ 63} Finally, the Seventh Circuit found that the record disclosed no
waiver of the conflict on Griffin’s part or any evidence that the attorney discussed
the potential of conflict of interest or the alternative defendant theories with his
client. Nor was there any evidence presented at the remand hearing that Martinez
had discussed the conflict of interest that existed because of his representation of
both John and William so that John could make an informed choice about waiver
and the selection of other defense theories.
       {¶ 64} Although William was not a co-defendant in the same trial as John,
he was charged with the same crimes. The reasons for the existence of the conflict




                                               23
                                SUPREME COURT OF OHIO




of interest are identical to those in the cases cited. The record in this case is replete
with evidence implicating William in these crimes, from blood on his jacket, a
matching bullet found on his body, and his flight from the scene, to his fight with
one of the victims on the night of the murders. Initially, an arrest warrant was
issued only for William. William’s plea of no contest to the unlawful discharge of
a firearm placed him by his own admission at the scene of these crimes. William’s
later plea included an agreement to testify against his brother if retrial occurred.
Clearly, there was sufficient evidence upon which Martinez should have
established an alternate defendant theory. Martinez could have used this evidence
to attack the strength of the identification of John at the scene of the crime.
However, Martinez did not present this evidence as part of a defense strategy, nor
did he argue it to the jury in support of reasonable doubt for John’s involvement.
Because of Martinez’s joint representation, he was constrained to rely solely on the
alibi defense and was not free to pursue this plausible alternate defendant theory as
part of his defense strategy.
        {¶ 65} Although this case has a long and tortuous history, one still cannot
overlook the actual conflict that clearly affected Martinez’s ability to zealously
represent John. Martinez was left with no choice but to choose the weaker line of
defense.   For these reasons, I believe reversal is mandated and, therefore, I
respectfully dissent.
        MOYER, C.J., concurs in the foregoing dissenting opinion.
                                 __________________




                                           24