In the Supreme Court of Ohio

STATE OF OHIO,

Respondent-Appellee,

-vs-

MARVIN JOHNSON,

Appellant-Appellant.

Supreme Ct. Case No. 04-1163

Trial Ct. No. 03-CR-116

This is a death penalty case.

Appellant Marvin Johnson's Application For Reopening Pursuant ToS.Ct. Prac. R. XI, Section 5

Appellant Marvin Johnson asks this Court to grant his Application for Reopening under

S.Ct. Prac. R. XI, Section 5(A) and State v. Murnahan, 63 Ohio St. 3d 60, 583 N.E.2d 1204

(1992), based upon the ineffective assistance of counsel during Johnson's direct appeal. A

Memorandum in Support is attached and incorporated by reference.

Respectfully submitted,

DAVID BODIKER - 0016590Ohio Public Defender

U h--"--,/1/

KIMBERL S. RIGBY - 0078245Assistant State Public DefenderCounsel of Record

^PAM DE-SMITHERS - 062206Supervisor, Death Penalty Division

Office of the Ohio Public Defender

Columbus, Ohio 43215

7

JM^ENGEL, 8 East Long Street, 11`h Floor

P hone: (614) 466-5394Facsimile: (614) 644-0708

LERK COUNSEL FOR APPELLANTOHIO

1

Memorandum In Suoaort

A. Introduction and procedural posture

A Guernsey County Court of Common Pleas jury convicted Appellant Marvin Johnson

of two counts of aggravated murder; each carrying a death specification, along with one count

each aggravated robbery, kidnapping, and aggravated rape. The trial court sentenced him to

death. Johnson was represented at trial by attorneys Jack Blakeslee and Andrew Warhola.

Attorneys Kathleen McGarry and Dennis Sipe represented Johnson on his direct appeal to this

Court. On December 13, 2006, this Court affirmed Johnson's sentence.

B. Appellate Counsel was ineffective for failing to raise meritorious issues

After a review of the direct appeal brief that was filed on Johnson's behalf, it is apparent

that his appellate attorneys were prejudicially ineffective for failing to raise meritorious issues

that arose during his capital trial. See Exhibit A.) Therefore, this Court must reopen his appeal.

State v. Mumahan, 63 Ohio St. 3d 60, 584 N.E.2d 1204 (1992) and S.Ct. Prac. R. XI, Section

5(A). Specifically, Johnson raises the following instances of appellate ineffectiveness:

1. Appellate counsel was ineffective for failing to raise the claim that the trialcourt improperly allowed the introduction of the hearsay statements ofwitness Mickey Alexander.

II. Appellate counsel was ineffective for failing to raise the claim that trialcounsel was ineffective for failing to object to the introduction of improperhearsay evidence.

III. Appellate counsel was ineffective for failing to raise the claim that Johnsonwas improperly sentenced and should be re-sentenced pursuant to thisCourt's holding in State v. Foster, 109 Ohio St. 3d 1, 845 N.E.2d 470 (2006).

C. Meritorious Issues That Were Not Raised on Appeal

The Due Process Clause of the Fourteenth Amendment guarantees effective assistance of

counsel on a criminal appeal as of right. Evitts v. Lucev, 469 U.S. 387 (1985). ). Appellate

2

counsel must act as an advocate and support the cause of the client to the best of their ability.

See, e.g., Anders v. California, 386 U.S. 738 (1967); Penson v. Ohio, 488 U.S. 75 (1988).

Failure to present a meritorious issue for review constitutes ineffective assistance of appellate

counsel. See, e.g., Matire v. Wainwrieht, 811 F.2d 1430 (11th Cir. 1987); Peoples v. Bowen,

791 F.2d 861 (11th Cir. 1986). Had Appellant Johnson's direct appeal counsel presented the

following three propositions of law to this Court, the outcome of this appeal would have been

differenti:

PROPOSITION OF LAW NO. I

A defendant's right to confront a witness under theConfrontation Clause of the Sixth Amendment to the UnitedStates Constitution is violated when the State introduces andthe trial court admits hearsay statements of an availablewitness through the testimony of another witness. U.S. Const.VI and XIV.

While Johnson was awaiting trial at the Guernsey County Jail, detectives placed another

inmate, Mickey Alexander, in the cell with Johnson. Alexander had been arrested on a number

of crimes and regularly provided law enforcement officers with information regarding legal

activities. (Tr. 88). In fact, Alexander had been acting as an informant for law enforcement

officials for approximately seven years. (Tr. 89). Before the commencement of Johnson's

capital trial, Johnson filed a motion seeking to suppress any statement made by him to Alexander

based on the fact that Alexander was placed in Johnson's cell to obtain incriminating

information. Johnson argued that any statements made were inadmissible because Miranda

warnings were not given. (Tr. 74).

1 Due to the page limitation imposed by S. Ct. Prac. R. XI, Section 5(D), Johnson is unable tofully brief the issues not raised by prior appellate counsel. As such, Johnson's failure to fullybrief every single point outline should not be the basis of a waiver of that issue or point.

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An evidentiary hearing was conducted regarding the motion to suppress. During that

hearing, Mickey Alexander testified regarding the information he obtained from Johnson.

Specifically, Alexander testified that during the time he shared a cell with Johnson, Johnson

admitted to the murder of Daniel Bailey. (Tr. 103). Johnson also informed Alexander about the

location of the money taken from Tina Bailey, and agreed to give half of the money to Alexander

if he located the money. (Tr. 109). After hearing Alexander's testimony, the trial court found

that the statements Johnson made to Alexander were admissible during Johnson's trial. (Dkt.

122).

During Johnson's trial, the State did not call Alexander as a witness at trial despite the

fact that Alexander was available as a witness. (Tr. 1685-86). Instead, the State introduced

Alexander's statement through the testimony of Brian Harbin and Greg Clark, the detectives with

whom Alexander worked.

Detective Harbin conveyed information to the jury that Alexander was roomed with

Johnson at the Guernsey County Jail, that Alexander contacted him about information he

received from Johnson, and that after speaking with Johnson, law enforcement officials were

able to recover the money that was taken from Tina Bailey. (Tr. 1638-40, 1644-45). During

Detective Harbin's testimony, there were several times that Detective Harbin testified about

information Alexander provided to him. Specifically, the State asked Detective Harbin whether

Alexander relayed to him where he thought the money was. Detective Harbin responded that

Alexander did. (Tr. 1640).

Later the State continued to question the detective about the instructions Alexander

provided:

Q• Was he telling you where to go?

4

A. That is correct. He had us get off of State street exit. From there we made a leftonto State Street, another left onto west Muskingum, I believe, and then a rightonto Ridge Avenue.

(Tr. 1643).

Q• So you were relying solely on the information that Alexander was giving to you?

Yes, sir.

On the 15'h Mickey Alexander was in jail?

Yes, he was.

But yet he was giving you this information of where the money was?

Correct.

And who showed you where that was?

A. Mickey Alexander.

(Tr. 1647).

Defense counsel objected to a number of instances where the State sought to introduce

the statement of Alexander. The trial court sustained those objections. (Tr. 1636, 1640). Still,

the introduction of the hearsay evidence continued. Although Detective Harbin never used the

words "Mickey Alexander said", his testimony regarding his meetings with Alexander were a

way to communicate hearsay evidence to the jury.

The State also introduced Alexander's statements through the testimony of Detective

Greg Clark. Detective Clark testified that law enforcement officials knew where in Zanesville to

go to locate the money because Alexander directed them there. "There is 1178 is the house I

believe it's a vacant house next to a parking lot right here which is what Mickey instructed us to

go to this parking lot." (Tr. 1587). Detective Clark provided the jury with specifics from

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Alexander's statement. "Then he said immediately after the culvert look for a news stand." (Tr.

1587).

Detectives Harbin's and Clark's testimony consisted of improper hearsay statements.

Detective Harbin and Clark provided the jury with information that Johnson told Alexander

where to locate the money stolen from Tina Bailey. The State should have been required to

produce Alexander as a witness in order to get this evidence admitted. The State disguised this

testimony as non-hearsay testimony as a way to attempt to circumvent the prohibition against

hearsay evidence by providing the jury with the type of information that is clearly impermissible

under constitutional law.

The Confrontation Clause of the Sixth Amendment provides that, "In all criminal

prosecutions, the accused shall enjoy the right...to be confronted with the witnesses against

him." U.S. Const. amend. VI. The United States Supreme Court has consistently declared that

the role of confrontation in testing accuracy is so important that the absence of confrontation at

trial calls into question the ultimate integrity of the fact-finding process. Ohio v. Roberts, 448

U.S. 56, 64 (1980), overruled on other grounds by Crawford v. Washington, 541 U.S. 36 (2004)

(citations omitted). The importance of the hearsay right to confront was recently addressed in

Crawford. In Crawford, the Court held that testimonial, out-of-court statements offered against

the accused to establish the truth of the matter asserted may only be admitted when the witness is

unavailable and where the defendant has had a prior opportunity to cross-examine the declarant.

Id. at 36, 68.

It was error for the trial court to allow Detectives Harbin and Clark to testify about the

information Alexander provided. The State should have been required to have Alexander testify

so that defense counsel would have had an opportunity to cross-examine him regarding his

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conversation with Johnson. Although defense counsel was permitted to cross-examine

Alexander during the evidentiary hearing, the information adduced from the cross-examination,

such as Alexander's bias and possible inducement for testifying was not provided to the jury.

More importantly, Alexander was not an unavailable witness. Detective Harbin testified

that he believed that Alexander was incarcerated at the time of Johnson's trial. (Tr. 1685-86).

This makes the State's actions even more egregious. The State's failure to produce Alexander

when he could have easily been made available to testify reveals a lack of confidence in

Alexander's credibility. The jurors should have been able to judge Alexander's credibility for

themselves. Instead, the State was allowed to circumvent the constitutional requirements of the

Confrontation Clause and have Detectives Harbin and Clark testify in place of Alexander.

Johnson had a right to confront Alexander regarding the statements about which

Detectives I-Iarbin and Clark testified. The failure of the trial court to require that Alexander

testify testimony violated Johnson's right to Confrontation and should result in the reversal of his

conviction.

PROPOSITION OF LAW NO. II

A capital defendant is denied the right to the effective assistance of trialcounsel when trial counsel fails to object to the admission of improperhearsay evidence. U.S. Const. VI and XIV.

The Sixth and Fourteenth Amendments guarantee the accused the right to counsel at trial.

Gideon v. Wainwright, 372 U.S. 335, 342-45 (1963). The standard for judging counsel's

effectiveness is found in Strickland v. Washin tgon, 466 U.S. 668 (1984). When evaluating

claims of ineffective assistance of counsel under Strickland, this Court must first determine if

counsel's performance was deficient. Id. at 686-87. Second, this Court must determine if

petitioner was prejudiced by counsel's deficient performance. Id. at 686-87. This Court must

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assess whether petitioner was deprived of a reliable trial result. Id. at 693-94. Thus, a petitioner

need not demonstrate outcome determinative error. See id.; Glenn v. Tate, 71 F.3d 1204, 1210-

11 (6th Cir. 1995). Johnson's trial counsel rendered deficient performance by failing to object to

the admission of hearsay testimony. Trial counsel's failure prejudiced Johnson because the State

was able to introduce prejudicial information without Johnson being able to test the credibility of

the witness against him. See Strickland, 466 U.S. 668; Crawford, 541 U.S. at 36, 38.

The trial court allowed the State to introduce statements of Mickey Alexander through

the testimony of Detectives Brian Harbin and Detective Greg Clark. Johnson incorporates

Proposition of Law No. I here for a discussion of the facts and prejudice resulting from this error.

Defense counsel objected to the admission of the hearsay testimony, and the trial court sustained

defense counsel's objections. (Tr. 1636, 1640). Nevertheless, the State continued to introduce

the hearsay evidence through Detectives Harbin and Clark with no further objections. It is

arguable that defense counsel's objections properly preserved the hearsay violation issue.

However, to the extent that trial counsel should have continued the objections to Harbin's and

Clark's testimony, defense counsel was ineffective for failing to do so. Trial counsel's

performance in failing to continue to object to the hearsay evidence was deficient and prejudicial

to Johnson. The jury was provided with prejudicial information and was not allowed to test the

credibility of Alexander's statements.

PROPOSITION OF LAW NO. III

Johnson was sentenced to more than minimum, concurrent sentences by thetrial court, despite the fact that the State must prove the statutory criteriafor increasing the sentence to a jury beyond a reasonable doubt. U.S. Const.V, VI, and XIV.

8

A Guernsey County Court of Common Pleas jury convicted Appellant Marvin Johnson

of two counts of aggravated murder; each carrying a death specification. In addition, Johnson

was convicted of one count each of aggravated robbery, kidnapping, and aggravated rape.

The jury recommended the death penalty, which the trial court imposed. (Tr. 2662) For

the kidnapping, rape and aggravated robbery counts, the trial court found that the defendant

committed the worst form of the offense and posed a likelihood of committing future crimes and

therefore imposed ten years as to each of those crimes, each to run consecutive to one another.

(Tr. 2660-61). The sentence imposed was the maximum sentence available for each offense. See

O.R.C. § 2929.14(A).

On February 26 2006, this Court issued its opinion in State v. Foster, 109 Ohio St. 3d 1,

845 N.E.2d 470, 2006 Ohio 856 (2006). Foster drastically altered Ohio's sentencing scheme.

Relevant to Johnson's appeal are this Court's findings that O.R.C. § 2929.14(C) and (E)(4)

requiring that the sentencing court impose the maximum sentence on "only those offenders who

committed the worst forms of the offense" do not comply with the United States Supreme

Court's holding in Blakely v. Washington, 542 U.S. 296 (2004). Foster, 109 Ohio St. 3d at 20,

845 N.E.2d at 490, 206 Ohio 856, ¶ 62-64.

Foster's plain language establishes that Johnson's sentences on Counts 3-5 are void.

Foster, 109 Ohio St. 3d at 20-21, 31, 845 N.E.2d at 490-91, 499, 2006 Ohio 856 206 Ohio 856, ¶

62-64, 67, 103. Moreover, Foster identifies the remedy as remand to the trial court. Id. at 31,

845 N.E.2d at 499, 2006 Ohio 856 at ¶ 104. Resultantly, Foster directs this Court to vacate

Johnson's non-capital sentences and remand his case to the trial court for re-sentencing.

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The trial court sentenced Johnson under a sentencing scheme violative of the Constitution

and Supreme Court precedent. This Court must vacate Johnson's non-capital sentences and

remand this case to the trial court for proceedings consistent with this Court's opinion in Foster.

D. Conclusion

Appellant Marvin Johnson has shown that there are genuine issues regarding whether he

was deprived of effective assistance of counsel on appeal. Johnson requests that this Application

for Reopening be granted and that he be afforded an opportunity to file a new appellate brief

with supporting materials in order to establish that prejudicial errors were made in the trial court,

and that ineffective assistance of appellate counsel in the prior appellate proceedings prevented

these errors from being presented effectively to this Court.

Respectfully submitted,

DAVID BODIKER - 0016590Ohio Public Defender

KIMBERLY S. RIGBY - 0078245stant State Public Defender

PAM 1'WP1E-SMITHERS - 0062206Supervisor, Death Penalty DivisionOffice of the Ohio Public Defender8 East Long Street, 11 `h FloorColumbus, Ohio 43215Ph: (614) 466-5394 Fax: (614) 644-0708

COUNSEL FOR APPELLANT

CERTIFICATE OF SERVICEI hereby certify that a true copy of the foregoing Appellant Marvin Johnson's Application

for Reopening Pursuant to S.Ct. Prac. R. XI, Section 5(A) was sent by regular U.S. mail toDaniel G. Padden, Office of the Guernsey County Prosecutor, 139 Courthouse Square, P.O. Box540, Cambridge, Ohio 43725, on this 13th day of ^^07

PAMEL-A J. PRUDE-SMIT= SCOUNSEL FOR APPELLAN'I'

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EXHIBIT A

IN THE SUPREME COURT OF OHIO

STATE OF OHIO,

Appellee,

-vs-

MARVIN JOHNSON,

Appellant.

Supreme Court Case No. 04-1163

Trial Court Case No. 03-CR-116

DEATH PENALTY CASE

AFFIDAVIT OF PAMELA J. PRUDE-SMITHERS

STATE OF OHIO )) ss:

COUNTY OF FRANKLIN )

I, Pamela J. Prude-Smithers, after being duly sworn, hereby state as follows:

I am an attorney licensed to practice law in the state of Ohio since 1993. I havebeen an assistant state public defender from 1993-1995 and from 1997 to date,and have been a supervisor in the death penalty litigation section since 2004. Mysole area of practice is capital litigation.

2. I was assigned to work on Marvin Johnson's post-conviction case.

3. I have read the transcript of the proceedings in State v. Johnson, Guernsey CountyCommon Pleas Case No. 03-CR-116.

4. Because of the focus of my practice of law and my attendance at death-penaltyseminars, I am aware of the standards of practice involved in the appeal of a casein which the death sentence was imposed.

5. The Due Process Clause of the Fourteenth Amendment guarantees effectiveassistance of counsel on an appeal as of right. Evitts v. Lucey, 469 U.S. 587(1985).

6. The initial responsibility of appellate counsel, once the transcript is filed, is toensure that the entire record has been filed with the Ohio Supreme Court.

Appellate counsel has a fundamental duty in every criminal case, and especiallyin a capital case, to ensure that the entire record is before the reviewing courts onappeal. Ohio Sup. Ct. Prac. R. XIX, § 4(A); R.C. 2929.05; State ex rel. S irn ko v.Judges of the Court of Appeals, Third Appellate District, 27 Ohio St. 3d 13, 501N.E. 2d 625 (1986).

7. After ensuring that the transcript is complete, counsel must then review the recordfor purposes of issue identification. This review of the record not only includesthe transcript, but also the trial motions and exhibits.

8. For counsel to properly identify issues, they must have a good knowledge ofcriminal law in general. Most trial issues in capital cases will be decided bycriminal law that is applicable to non-capital cases. As a result, appellate counselmust be informed about the recent developments in criminal law when identifyingpotential issues to raise on appeal. Counsel must remain knowledgeable aboutrecent developments in the law after the merit brief is filed.

9. Since the reintroduction of capital punishment in response to the Supreme Court'sdecision in Furman v. Georeia, 408 U.S. 238 (1972), the area of capital litigationhas become a recognized specialty in the practice of criminal law. Manysubstantive and procedural areas unique to capital litigation have been carved outby the United States Supreme Court. As a result, anyone who litigates in the areaof capital punishment must be familiar with these issues to raise and preservethem for appellate review.

10. Appellate representation of a death-sentenced client requires recognizing that thecase will most likely proceed to the federal courts at least twice: first, on petitionfor Writ of Certiorari in the United States Supreme Court, and again on petitionfor Writ of Habeas Corpus filed in a federal district court. Appellate couusel mustpreserve all issues throughout the state-court proceedings on the assumption thatrelief is likely to be sought in federal court. The issues that must be preserved arenot only issues unique to capital litigation, but also case- and fact-related issuesunique to the case that impinge on federal constitutional rights.

11. It is a basic principle of appellate practice that to preserve an issue for federalreview, the issue must be exhausted in the state courts. To exhaust an issue, theissue must be presented to the state courts in such a manner that a reasonablejurist would have been alerted to the existence of a violation of the United StatesConstitution. The better practice to exhaust an issue is to cite directly to therelevant provisions of the United States Constitution in each proposition of law toavoid any exhaustion problems in federal court.

12. It is important that appellate counsel realize that the reversal rate in the state ofOhio is approximately eleven percent on direct appeal and two percent inpostconviction. It is my understanding that forty to sixty percent (depending onwhich of several studies is relied upon) of all habeas corpus petitions are granted.

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Thus, appellate counsel must realize that in Ohio, a capital case is very likely toreach federal court and, therefore, counsel should prepare the appeal accordingly.

13. Based on the foregoing standards, I reviewed the record and read the trialtranscript in Marvin Johnson's case. I have identified the following issues thatshould have been evaluated by appellate counsel and fully presented to the OhioSupreme Court:

Proposition of Law No. I: A capital defendant is denied the right tothe effective assistance of trial counsel when trial counsel fails toobject to the admission of improper hearsay evidence.

Proposition of Law No. II: A capital defendant is denied the right tothe effective assistance of trial counsel when trial counsel fails toobject to the admission of improper hearsay evidence.

Proposition of Law No. III: Johnson was sentenced to more thanminimum, concurrent sentences by the trial court, despite the factthat the State must prove the statutory criteria for increasing thesentence to a jury beyond a reasonable doubt.

14. These issues are meritorious and warrant relief. Thus, appellate counsel's failureto present these errors amounts to ineffective assistance of appellate counsel inthis case.

15. Appellate counsel failed to raise these issues in this application for reopening.Based on my evaluation of the record and understanding of the law, I believe theissues raised in Appellant Johnson's Application for Reopening are meritorious.Also, had appellate counsel raised these issues, each error would have beenproperly preserved for federal-court review.

16. Therefore, Marvin Johnson was detrimentally affected by the deficientperformance of his former appellate counsel.

Further affiant sayeth naught.

DE-SMITHERSCounsel for Appellant Johnson

Sworn to and subscribed before me on this 0, day of March, 2007.

.1

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In the Supreme Court of Ohio

STATE OF OHIO,

Respondent-Appellee,

-vs-

MARVIN JOHNSON,

Petitioner-Appellant.

Supreme Ct. Case No. 04-1163

Trial Ct. No. 03-CR-116

Death Penalty Case

On Appeal From The Court Of Common PleasOf Guernsey County, Case No. 03-CR-116

Appellant Marvin Johnson's Application For Reopening Pursuant ToS.Ct. Prac. R. XI, Section 5

DANIEL G. PADDEN - 0038781 DAVID BODIKER - 0016590Guernsey County Prosecutor Ohio Public Defender

KIMBERLY S. RIGBY - 0078245Assistant State Public DefenderCounsel of Record

PAMELA PRUDE-SMITHERS - 0062206Supervisor, Death Penalty Division

Office of the Guernsey County Prosecutor Office of the Ohio Public Defender139 Courthouse Square 8 East Long Street, l lth FloorP.O. Box 540 Columbus, Ohio 43215Cambridge, Ohio 43725 ph (614) 466-5394

fax (614)644-0708

COUNSEL FOR APPELLEE COUNSEL FOR APPELLANT

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