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Joseph Lewis CLARK

 
 
 
 
 

 

 

 

 
 
 
Classification: Murderer
Characteristics: Robberies
Number of victims: 2
Date of murder: January 12/13, 1984
Date of arrest: January 16, 1984
Date of birth: January 15, 1949
Victims profile: Donald Harris (store clerk) / David A. Manning, 23 (gas-station clerk)
Method of murder: Shooting (.32 caliber handgun)
Location: Lucas County, Ohio, USA
Status: Executed by lethal injection in Ohio on May 2, 2006
 
 
 
 
 
 
clemency report
 
 
 
 
 
 

Summary:

David A. Manning, age 23, was working alone at a service station in Toledo when Clark entered armed with a .32 caliber handgun and demanded money.

After handing over $60 to Clark, Manning was shot once in the chest, killing him.

Three days later, Clark was arrested on bank robbery charges. A .32 caliber handgun was found on his person.

In jail, Clark attempted to hang himself. After his release from the hospital, Clark admitted to the shooting of Manning, but claimed that Manning had come at him with a pipe during the robbery.

This was one in a string of robberies in a two-week period committed, according to Clark, to support a drug habit.

Clark first robbed one victim at gunpoint (Kim Reno - January 8, 1984), then killed two victims (Donald Harris - January 12, 1984, and David Manning, January 13, 1984) and finally seriously wounded a fourth victim (Robert Roloff - January 16, 1984).

Clark has a long criminal history, and was also sentenced to life imprisonment for the murder of Donald Harris.

Citations:

State v. Clark, Not Reported in N.E.2d, 1986 WL 15254 (Ohio 1986). (Direct Appeal)
State v. Clark, Not Reported in N.E.2d, 1998 WL 484119 (Ohio 1998). (PCR)

Final Meal:

Jumbo shrimp; a T-bone steak with A-1 steak sauce; fried chicken wings; french fries; dinner rolls; cherry pie; and Pepsi.

Final Words:

In his final statement, Clark said, “I would like to tell them young brothers and sisters also all over the world, do not let drugs ruin your life, ruin your body, and destroy your mind. Today my life is being taken because of drugs. If you live by the sword, you die by the sword.” After a long speech in which he thanked his family and friends, apologized to his victims’ families, and preached against the dangers of drugs, Clark quoted from the Martin Luther King, Jr., “I Have a Dream” speech in declaring himself: “Free at last. Free at last. Thank God Almighty, I am free at last.” Clark made a final statement apologizing to his victims' families and saying "I would like to say to family and friends that I didn't get to talk to, ... that was wondering how I felt, I would like them to know that I asked God to forgive me, that I asked the Lord to save me from my sins. And I asked God to forgive those who are participating in this here today."

ClarkProsecutor.org

 
 

Killer to be executed today; Man shot store clerk while in search of drug money in ’84

By Erica Ryan - Columbus Dispatch

AP - Tuesday, May 02, 2006

A man sentenced to death for killing a gas-station clerk during a string of robberies 22 years ago smoked cigarettes yesterday and talked with members of the team preparing to execute him today, a prisons spokeswoman said.

Joseph Lewis Clark, 57, is to die by injection for killing David Manning, 23, in January 1984, a day after Clark killed a convenience-store worker during another robbery.

Clark arrived around 10 a.m. yesterday at the Southern Ohio Correctional Facility from Death Row at the Ohio State Penitentiary in Youngstown, said Andrea Dean, spokeswoman for the state prisons department.

His execution, scheduled for 10 a.m. today, would make him the 21 st man put to death since the state resumed capital punishment in 1999.

Gov. Bob Taft rejected Clark’s appeal for clemency last week, saying he found "no justifiable basis for mercy."

Clark confessed to police that he killed Manning, who was working the night shift at a Toledo gas station, saying that he was trying to get money for drugs. According to court records, Clark shot Manning in the chest after the clerk told him there was no money.

Clark also was given a life sentence for killing convenience-store clerk Donald Harris the day before as part of a series of robberies that lasted more than a week in January 1984.

Clark was arrested three days after Manning’s death after he shot and wounded a man withdrawing money from an automated teller machine.

He was sentenced to die in November 1984. Clark has been facing execution longer than all but 11 of the 193 men on Death Row and has no legal appeals left.

In a March interview at the Youngstown prison, Clark said he didn’t intend to kill Manning. "He started coming toward me with something like a metal rod or something in his hand," Clark said. "I sort of somehow squeezed the trigger off and shot him."

For his final dinner, Clark requested jumbo shrimp; a T-bone steak with A-1 steak sauce; fried chicken wings; french fries; dinner rolls; cherry pie; and Pepsi. A message was left seeking comment with George Pappas, an Akron lawyer who has represented Clark and spoke to the state parole board on his behalf in April.

 
 

Botched execution fires up opponents of death penalty

By Erica Ryan - Columbus Dispatch

Thursday, May 04, 2006

Defense lawyers and deathpenalty opponents said yesterday that the unprecedented difficulties in executing a man in Ohio illustrate the problems with a method of capital punishment they call unconstitutional.

Problems finding a suitable vein in which to inject drugs to kill Joseph Lewis Clark on Tuesday demonstrated the complications that can arise, said David Bodiker, Ohio’s public defender.

His office has sued the state to challenge the effectiveness of its method of lethal injection. "I think that this underlines or emphasizes the fact that we’re not capable of actually imposing a formula for taking the life of the people on Death Row and doing it a manner that we have committed to which is painless and efficient," he said.

Clark’s execution counters the belief that lethal injection is easy and straightforward, said Douglas Berman, an Ohio State University law professor who studies the death penalty. "It’s another piece of evidence to give the court to think about," he said.

The execution team at the Southern Ohio Correctional Facility in Lucasville worked for about 25 minutes to find a suitable vein in Clark’s right arm before continuing with a shunt in his left arm. "It don’t work," he said as the team tried to start the injection.

Prison officials later said his vein had collapsed. A curtain behind a glass panel separating him from witnesses to the execution was closed, but Clark could be heard moaning and groaning. The execution resumed about 40 minutes later after another vein was found.

Clark, sentenced to die for killing gas station attendant David Manning during a string of robberies in 1984, died about 90 minutes after the execution began.

Clark’s attorney, George Pappas, watched the execution but did not comment afterward. Messages seeking comment were left at his office yesterday.

Prisons director Terry Collins said yesterday that the department will review the procedure before the next execution takes place. Despite the complications, Collins said, he didn’t think the process went wrong, but the review will focus on ways to improve.

Last week, a federal judge in Columbus indefinitely postponed the execution of Jeffrey Hill, who is part of a lawsuit that says Ohio’s method of execution is cruel and unusual.

Hill’s lawyer, Gary Crim, said the problems with Clark’s execution support the challenge: that the way executions are being carried out isn’t working. He said he thinks Clark’s execution could have some influence on those deciding the lawsuit.

 
 

Inmate Executed After Delay

10TV.com

May 02, 2006

Ohio executed a man Tuesday following a delay of more than an hour because of unprecedented difficulty administering the lethal injection.

Joseph Lewis Clark, 57, died by injection at 11:26 a.m. at the Southern Ohio Correctional Facility for killing a gas station clerk during a spree of robberies in 1984 in which he also killed a convenience store worker.

The execution was set to begin at 10 a.m. It was the longest delay since the state resumed executions in 1999, state prisons spokeswoman Andrea Dean said.

The execution was slowed as the execution team worked to find a vein in his right arm.

After 25 minutes of trying to find a vein, the team strapped Clark to the gurney with a shunt in his left arm. Clark said, "It don't work" and "They're not working" as the team tried to start the injection.

 A curtain separating the death house from witnesses was pulled shut. Clark could be heard moaning and groaning from behind the curtain.

When the curtain reopened at 11:17 a.m., Clark still had a shunt in his left arm and his eyes were closed. "This has never happened," Dean said of the delay.

Clark, sentenced to die in November 1984 for killing David Manning, had been on Ohio's death row longer than all but 11 of the 193 men on death row.

Prisons director Terry Collins said the vein in Clark's arm collapsed. Clark had a history of drug use, and Collins said that could have been a factor. "The team here is a very professional team. They're doing a very, very difficult job under difficult circumstances," he said.

In his final statement, Clark apologized to the victim's family. "I would like to say to family and friends that I didn't get to talk to, ... that was wondering how I felt, I would like them to know that I asked God to forgive me, that I asked the Lord to save me from my sins," he said. "And I asked God to forgive those who are participating in this here today."

Gov. Bob Taft rejected Clark's appeal for clemency last week, saying he found "no justifiable basis for mercy."

Clark confessed to police that he killed Manning, saying that he was trying to get money for drugs. Clark shot and killed convenience store clerk Donald Harris the day before killing Manning, working the night shift at a Toledo gas station.

According to court records, Manning was shot by Clark in the chest after telling him there was no money. Clark was arrested three days later after he shot and wounded a man withdrawing money from an automated teller machine.

In a March interview at the Ohio State Penitentiary in Youngstown, Clark said he didn't intend to kill Manning. "He started coming toward me with something like a metal like a metal rod or something in his hand," Clark said. "I sort of somehow squeezed the trigger off and shot him."

 
 

Ohio man tells executioners "It's not working

By Jim Leckrone - Reuters News

Tue May 2, 2006

COLUMBUS, Ohio (Reuters) - A double murderer was put to death in Ohio on Tuesday but not until after one of his veins had collapsed, causing the condemned man to sit up and tell his executioners, "It's not working," officials said.

The Ohio Department of Corrections said Joseph Clark, 57, was pronounced dead at 11:26 a.m. EDT (1426 GMT) following an injection of lethal chemicals at the Southern Ohio Correctional Institution in Lucasville.

Spokeswoman Andrea Dean said the execution was delayed about 90 minutes because technicians had trouble initially finding a site in Clark's arm for the intravenous line carrying the chemicals.

Then shortly after the poisons were supposed to have been pumping into his body, she said, he sat up saying, "It's not working. It's not working."

Officials determined that a vein had collapsed. Curtains were closed to block witnesses' view until technicians found a vein in his other arm. They were then parted to reveal him dying, witnesses said.

Ohio has used lethal injection repeatedly without similar problems, but this method of execution, used in all but one of the 38 U.S. states that impose capital punishment, is under legal attack.

The U.S. Supreme Court has a challenge before it from Florida claiming that it causes undue pain, while the matter is also before a court in California.

The method involves three separate drugs: the first renders the victim unconscious, the second stops all muscle movement except the heart and the third stops the heart, causing death.

Clark was given a meal of his request on Monday, consisting of shrimp, steak, chicken wings, fries, rolls with butter, cherry pie and a soft drink.

Just before the execution process started the first time Clark made a final statement apologizing to his victims' families and saying "Today my life is being taken because of drugs. If you live by the sword you die by the sword."

On January 13, 1984, Clark shot Marine reservist and father of two David Manning and stole $65 from the gas station where Manning was working.

The murder came during an eight-day crime spree in which Clark also murdered another man, student Donald Harris, and wounded a third man during an attempted robbery.

Harris was filling in for a friend at a convenience store when Clark entered and demanded the contents of the store's safe. Harris said he did not know the safe's combination, and was shot in the back of the head.

Clark later attempted to rob a man at an automated teller machine, the two struggled, and the victim was wounded twice. A witness saw the attack and noted the license plate number on Clark's car.

After he was arrested, Clark tried to hang himself in his jail cell, and confessed to the murders while recovering in a hospital. He was sentenced to death for Manning's murder. Clark said he robbed to support a drug habit.

"Neither the parole board nor I are persuaded by Mr. Clark's attempt to explain away Mr. Manning's murder," Gov. Robert Taft said in refusing clemency last week. Taft said Clark's "well established prior criminal conduct, both as a juvenile and as an adult, signifies a propensity for violent behavior."

 
 

Clark execution raises lethal-injection issues

By Jim Provance and Christina Hall - ToledoBlade.com

May 4, 2006

COLUMBUS - The nearly 90 minutes it took Ohio to execute Joseph Lewis Clark on Tuesday is believed to be the second-longest lethal injection on record in the United States.

"You only hear about the unusual ones," said Richard Dieter, executive director of the nonprofit Death Penalty Information Center in Washington. "There's no guarantee that every one is reported, but we know of only one longer, two hours [in Texas in 1998]. "Clearly this issue in Ohio will add to much larger serious challenges that have been raised about lethal injection," he said. "When you have medical procedures being performed by non-medical personnel, errors and problems are inevitable."

As it prepares for his funeral, Clark's family has engaged an attorney and has at least explored the possibility of having a private autopsy conducted.

"We had a good vein when we started, and it collapsed. That had nothing to do with the process," said Terry Collins, the new director of the Ohio Department of Rehabilitation and Correction. "We had 20 [executions] that went without incident. This case was unique from the beginning."

Clark, 57, was officially declared dead at 11:26 a.m. Tuesday, 86 minutes after the official start of his execution, a process that typically takes 10 minutes.

He was executed for the murder of David Manning, a 23-year-old Toledo husband and father, who was working as a gas station clerk in 1984.

Clark was also convicted of murdering a second man, Donald Harris, 21, during another convenience store robbery and was sentenced to life in prison for that crime.

Prison personnel worked for 25 minutes to find usable veins in both arms to attach intravenous tubes, but the execution team could not find one in his right arm. The decision was made to proceed with one IV shunt in the left.

Clark calmly but tearfully proceeded to give the longest final statement a lethal injection inmate has given.

When the execution process began, he became agitated. Instead of falling asleep under the effect of the first of three drugs, he raised his head from the gurney, repeatedly shook it, and loudly declared "It don't work" five times.

The execution team closed a curtain between Clark and the witnesses. "Poor Joe. He was ready to die, and they weren't doing it right" said Clark's attorney, George Pappas, an execution witness.

The IV in Clark's left arm had failed, apparently because of scar tissue that had built up over years of intravenous drug use more than two decades ago.

By the time the curtain was reopened nearly half an hour later, Clark appeared to have already fallen asleep. "I can only guess - I'm not a medical person - that some of the initial drugs had entered his system prior to the vein collapsing and had gotten to the point that he went to sleep," said Mr. Collins.

He said what happened behind the curtain was what witnesses had observed on a video monitor earlier when the team was initially preparing Clark for execution by trying to find two workable veins. He said Clark was "not in distress, not struggling," and that staff acted in a professional, dignified manner.

Dr. Jonathan Groner, an associate surgical professor at Ohio State University and critic of the lethal injection process, said the first drug to sedate Clark, sodium pentothal, may have gone into tissue around the vein. That could have been painful, he said. "Clark, who had been an IV drug user, probably knew what that felt like," he said. "He'd probably done it himself, and that's why he said it's not working. After three or four minutes, he may have already gotten a fair amount under his skin, and then it began to seep back into his system."

The execution team is composed of ODRC employees with some medical technician training who volunteer for the task. The team rotates 15 or 16 members, spokesman Andrea Dean said.

There are no doctors or nurses on the team because the department does not like to put them in a position that conflicts with their ethical beliefs, Mr. Collins said.

Mr. Collins said the process will be reviewed and he expects the review to be completed by July, when the next execution is scheduled. He said some things to be looked at include the condemned having two intravenous lines before going to the execution chamber and whether the execution needs to start and stop at certain times.

"It wasn't his time to go," said Nevelle Stallworth, Clark's nephew. "If it didn't work the first time, it was not meant for him to leave. He didn't deserve to go out like that."

Attorney Alan Konop, who is representing the Clark family, called the incident "horrendous" and "tragic." "We are in the process of gathering all information and doing a thorough investigation and moving toward litigation," he said.

The delay did not deter Mr. Manning's widow, Mary Ellen Gordon, who said afterward she would have been willing to wait until midnight to see the execution through.

 
 

Problems bog down execution of Clark; Drugs take his life after 86 minutes

By Jim Provance and Christina Hall - ToledoBlade.com

Wednesday, May 3, 2006

The execution proceeded despite the issuance of a stay by a federal court Monday in the execution of a Hamilton County man set for June 15.

That inmate has a lawsuit pending that challenges the constitutionality of the lethal injection protocol, arguing that the choice of drugs could lead to cruel and unusual punishment. Clark is not a party to that suit.

Clark was executed at the Southern Ohio Correctional Facility in Lucasville, Ohio, for the Jan. 13, 1984, slaying of David Manning, a 23-year-old husband and father who was shot at a gas station on Airport Highway in South Toledo.

He received a life sentence for killing another clerk, Donald Harris, 21, the night before at a store on Hill Avenue.

Clark was arrested after shooting a third man, Robert Roloff, during a holdup at a bank ATM in Toledo, three days after shooting Mr. Manning. Mr. Roloff survived.

“Justice has been served today for both David Manning and Donald Harris. Joseph Clark has finally received that which was his due,” Mary Ellen (Manning) Gordon, Mr. Manning’s widow, said after the execution.

Mrs. Gordon said she “did not shed a single tear for the execution of Joseph Clark,” whom she said was “a perfect candidate” to receive the death penalty.

Mr. Manning’s brother, Michael, said that Clark tried to be a martyr. But he said Clark is “not a martyr. He’s just a murderer.” Michael Manning and Brenda Kuhl, Mr. Harris’ sister, said Clark died peacefully. “I think that it was kind of an easy way for him to go,” said Ms. Kuhl, who was in a waiting room with other relatives who did not see the execution.

Nevelle Stallworth, Clark’s nephew in Toledo, said he learned about what happened at the execution on the news. “They know what they’re doing down there. They were gonna carry it through,” he said. “As long as he went peacefully.”

The execution team had struggled for 25 minutes to find usable veins in both of Clark’s arms, and made the decision to proceed with the execution with just one intravenous shunt in his left arm.

That vein apparently collapsed as the execution process began, according to Terry Collins, in his first week as director of the Ohio Department of Rehabilitation and Correction. Clark was a longtime intravenous drug user before his arrest 22 years ago.

After a long speech in which he thanked his family and friends, apologized to his victims’ families, and preached against the dangers of drugs, Clark quoted from the Martin Luther King, Jr., “I Have a Dream” speech in declaring himself: “Free at last. Free at last. Thank God Almighty, I am free at last.” Then the problems began.

At first, Clark was extremely still, breathing shallowly, and appeared to have fallen asleep except for occasional movement of his feet. But after a few minutes, he raised his head and, frustrated, shook it back and forth, repeatedly declaring, “It don’t work.”

The execution team pulled the curtain closed at 10:37 a.m. The curtain reopened at 11:12 a.m. and the process resumed. But even then, Clark raised his head about a dozen times and appeared to try to speak.

Finally, he rested his head and clearly began to snore. The snoring ceased and he appeared to stop breathing at 11:23 a.m. He was formally declared dead by the prison warden three minutes later.

Mr. Collins said he was on the phone with the governor’s and attorney general’s offices discussing contingencies if the second attempt failed. Clark died from a trio of drugs that first put him to sleep, then stopped his breathing, and finally stopped his heart.

The irony of the use of drugs in his death was not lost on Clark. In his final statement, he said, “I would like to tell them young brothers and sisters also all over the world, do not let drugs ruin your life, ruin your body, and destroy your mind. Today my life is being taken because of drugs. If you live by the sword, you die by the sword.”

Lucas County Prosecutor Julia Bates said yesterday was a “very difficult day” for everyone in law enforcement and everyone in Ohio. “There’s no joy in Lucasville on anyone’s side,” she said.

 
 

Inmate talks to family on day before execution

By Jim Provance - ToledoBlade.com

Tuesday, May 2, 2006

LUCASVILLE - Condemned inmate Joseph Lewis Clark dined on surf and turf and talked with family by phone yesterday as the hour of his death approached.

Gov. Bob Taft has denied clemency and Clark had no court appeals pending last night that could stop his execution at 10 a.m. today for the murder of David A. Manning 22 years ago during a drug-driven, nine-day armed robbery spree.

Clark would be the 21st man and the first from Lucas County to be executed since Ohio resumed carrying out the death penalty in 1999.

The execution appeared to be moving forward despite the fact that a federal judge yesterday issued a stay in the scheduled June 15 execution of Jeffrey D. Hill, who was convicted of murdering his mother in Hamilton County.

Hill is a party to a lawsuit challenging the protocol used in the lethal injection process, which critics argue could be unconstitutionally cruel and unusual punishment. The Ohio Supreme Court refused to stop Clark's execution while that suit is pending.

Andrea Dean, spokesman for the Ohio Department of Rehabilitation and Correction, described Clark, 57, as "almost upbeat," talking to employees at the Southern Ohio Correctional Institution that he remembered from his days when death row was based there. "He's at peace with this process and the fact that it is going to be carried out," she said.

"He does plan to address the Manning family as well as the [Donald B.] Harris family in his statement," she said. Mr. Manning's widow, Mary Ellen (Manning) Gordon, said there's only one thing she wants to hear from Clark. "I want him to tell the truth. He keeps saying David was attacking him, which is not true. I don't think he's remorseful. If he is, it's only because he's dying," she said.

The Harris family won't be in the room to hear Clark's last words. Mr. Harris, 21, was robbed and murdered the day before Mr. Manning was killed, but the jury in the Harris case returned a sentence of life in prison instead of death.

Donald's mother and sisters were outside the prison yesterday. They said they sometimes feel Donald has been treated as a second-class victim, going back two decades ago when they were living in California and were not informed of Clark's trial.

They missed it. "It's all centered around what he got the death penalty for, so it's understandable," said Donald's sister, Carrie. "But yet it's kind of nice if there's some recognition of what happened to Donald, not just as another [convenience store] clerk."

Clark, 57, was transported yesterday from the new death row at the Ohio State Penitentiary in Youngstown to the death house in Lucasville.

For his final requested "special meal," he dined on six shrimp, steak with A-1 sauce, fried chicken wings, french fries with ketchup, dinner rolls with butter, cherry pie, and Pepsi. He will have the option of eating what the other inmates will have this morning before his execution by a trio of drugs that will sedate him, paralyze his lungs, and shut down his heart.

Mr. Manning's widow and two brothers, Michael and Stephan Manning, will witness the execution along with the media. Clark asked that no members of his family witness his death.

 
 

Killer's lawyer to ask board for clemency

By Jim Provance - ToledoBlade.com

Tuesday, April 8, 2006

COLUMBUS - A lawyer for convicted murderer Joseph Lewis Clark will try to convince the Ohio Parole Board on Tuesday that Clark has changed since shooting David Manning to death during a Toledo gas station robbery 22 years ago.

Members of Clark's family are not expected to appeal personally to the board. His Akron attorney, George Pappas, stated in a clemency petition filed yesterday that Clark asked his family not to participate.

But three members of Mr. Manning's family - his wife, Mary Ellen, and two brothers, Michael and Stephen - are expected to join Lucas County Prosecutor Julia Bates in urging the board and Gov.

Bob Taft not to interfere with Clark's scheduled May 2 execution. He would become the 21st person executed by Ohio and the first from Lucas County since the state resumed carrying out the death penalty in 1999.

Mr. Pappas will cite Clark's history of drug addiction that began during his teen years with codeine cough syrup and escalated to barbiturates, amphetamines, and heroin. The petition states that Clark is deeply remorseful.

"There is no doubt that Joe Clark's drug addiction was inextricably linked to his criminal behavior," reads the petition. "Every offense he committed was the result of the influence of illicit drug abuse and addiction. This is a condition and secret which he concealed and protected within himself. "Joe Clark's drug-induced state of mind during the commission of his criminal acts, his dull-normal range of intelligence, and inept ability to seek help to understand and treat his psychological issues all contributed to his life of crime over 20 years ago," it adds.

Clark shot and killed Mr. Manning, 23, on Jan. 13, 1984. The opposing petition filed by the state reminds the parole board that Mr. Manning's murder was part of a nine-day robbery spree. Two days earlier, Donald Harris, 21, was shot in the back of the head during a store robbery in Toledo.

Clark was sentenced to life with the possibility of parole for that murder. A third man, Robert Roloff, was robbed and shot during a robbery at an ATM machine. Mr. Roloff survived, and the incident led to Clark's arrest and the recovery of the 32-caliber handgun that tied him to the two murders.

Included with the state's brief was a hand-written letter dated March 23 from Kim Reno, who was robbed by Clark at the gas station where she worked five days before Mr. Manning was killed. "I don't believe he deserves to live any longer," she wrote. "He's lived [22] years longer than those whose lives he took that horrible week in January, 1984. And so many times I thought, 'It could have been me.'?"

Clark's petition paints a picture of a man, now 57, who grew up in a household where there was no real discipline for bad behavior following the death of his father. During the seventh grade, he was sent to the Fairfield School for Boys.

On death row at the Ohio State Penitentiary at Youngstown, he will not be permitted to attend his hearing. He was interviewed in prison by a parole board member who will later report to the full board behind closed doors.

In the 23 cases that have come before him, Gov. Bob Taft has commuted just one sentence, that of Jerome Campbell of Hamilton County, to life in prison without parole.

That followed new DNA evidence that, Mr. Taft said, shed doubt on the sentencing phase of the trial but not Campbell's guilt. He recently granted delays in the execution of John Spirko in the murder of a Van Wert County postmaster while new DNA testing is conducted on 24-year-old evidence.

 
 

Death penalty foes hope Ohio execution problems draw attention

By Erica Ryan - Akron Beacon Journal

Associated Press - Wed, May. 03, 2006

COLUMBUS, Ohio - Defense attorneys and death penalty opponents said Wednesday the unprecedented difficulties injecting a man executed in Ohio illustrate the problems with a method of capital punishment they call unconstitutional.

Problems finding a suitable vein to deliver drugs during Joseph Lewis Clark's execution Tuesday demonstrated the complications that can arise, said David Bodiker, Ohio's public defender.

His office has sued the state challenging the effectiveness of its method of lethal injection. "I think that this underlines or emphasizes the fact that we're not capable of actually imposing a formula for taking the life of the people on death row and doing it a manner that we have committed to which is painless and efficient," he said.

Clark's execution counters the belief that lethal injection is easy and straightforward, said Douglas Berman, an Ohio State University law professor who studies the death penalty. "It's another piece of evidence to give the court to think about," he said.

The execution team at the Southern Ohio Correctional Facility in Lucasville worked for about 25 minutes to find a vein in Clark's right arm before continuing with just the shunt in his left arm. "It don't work," he said as the team initially tried to start the injection.

Prison officials later said his vein had collapsed. A curtain behind a glass panel separating him from the area where witnesses watched the execution was pulled shut, but Clark could be heard moaning and groaning. The execution continued about 40 minutes later after another vein was found.

Clark, sentenced to die for killing gas station attendant David Manning during a spree of robberies in 1984, died about 90 minutes after the execution was to begin.

Clark's attorney, George Pappas, watched the execution but did not comment afterward. Messages seeking comment were left at his office Wednesday.

Prisons director Terry Collins said Wednesday that the department will complete a review before the next execution takes place. Despite the complications, Collins said he didn't think the process went wrong, but the review will focus on ways to improve.

A federal judge in Columbus last week indefinitely postponed the execution of Jeffrey Hill, who is part of a death row lawsuit that claims Ohio's method of execution is cruel and unusual.

Hill's lawyer, Gary Crim, said the problems with Clark's execution support the basis of the challenge: that the way executions are being carried out isn't working as intended.

He said he believes Clark's execution could have some influence on those deciding the lawsuit. "Certainly my experience is (Supreme Court) justices read newspapers," he said.

A growing number of death row inmates nationwide are filing challenges to the injection method, claiming their executions could be painful because of the drug combination or because the procedure would not be handled by specially trained medical personnel.

The U.S. Supreme Court last week examined a Florida case that asks whether inmates can file last-minute civil rights challenges claiming lethal injection is cruel and unusual punishment.

A ruling is expected before July. Lethal injections are used by the federal government and 37 of the 38 states that have the death penalty. Nebraska still uses the electric chair.

In California, executions are on hold while a federal judge considers the constitutionality of that state's protocol. A hearing is scheduled in September.

Clark's execution strengthens the case for declaring lethal injection cruel and unusual, said Dr. Jonathan Groner, an associate professor of surgery at Ohio State University's medical college.

He said other death row inmates likely have veins that are difficult to access because of past drug use or obesity. "I don't sleep any better at night thinking people are going by lethal injection," Groner said. "Clearly, some of them are tortured to the extreme."

 
 

Ohio Adult Parole Authority

DATE PUBLISHED: April 17, 2006
IN RE: JOSEPH L. CLARK, OSP #183-984
STATE OF OHIO ADULT PAROLE AUTHORITY
COLUMBUS, OHIO
Date of Meeting: April 11, 2006

Minutes of the SPECIAL MEETING of the Adult Parole Authority held at 1030 Alum Creek Drive, Columbus, Ohio 43205 on the above date.
SUBJECT: Death Sentence Clemency

CRIME, CONVICTION: Aggravated Murder with Specifications (2 cts.)
DATE, PLACE OF CRIME: 1/12/1984: Toledo, Ohio; 1/15/1984 Toledo, Ohio
COUNTY: Lucas
CASE NUMBER(S): CR 84-5130

VICTIM(S): Count 1: Donald Harris; Count 2: David Manning
INDICTMENT: February 2, 1984: Counts 1 & 2: Aggravated Murder with Death Penalty Specification and Firearm Specification, Counts 3 & 4: Aggravated Robbery with Firearm Specification, Count 5: Attempted Murder with Firearm Specification, Count 6: Felonious Assault (1 count)

VERDICT: November 6, 1984: Found guilty by Jury of Count 2; February 21, 1985: Found guilty by Jury of Count 1
SENTENCE: November 28, 1984: Sentenced to DEATH; March 4, 1985: Sentenced to LIFE; March 18, 1985: Counts 3, 4, 5 and 6 nolled.

ADMITTED TO INSTITUTION: March 22, 1985
AGE AT ADMISSION: 36 years old
CURRENT AGE: 57 years old
DATE OF BIRTH: January 15, 1949
PRESIDING JUDGE: Honorable Francis Restivo
PROSECUTING ATTORNEY: James Bates, Michael Bruno & James Yavorcik

FOREWORD:
Clemency in the case of Joseph L. Clark #183-984 was initiated by the Honorable Bob Taft, Governor of the State of Ohio, and the Ohio Parole Board, pursuant to Sections 2967.03 and 2967.07 of the Ohio Revised Code and Parole Board Policy #105-PBD-05.

On April 11, 2006 a Clemency Review Hearing was held with nine members of the Ohio Parole Board participating.

Testimony in support of Clemency was presented by Mr. Clark’s attorney, George Pappas and by his daughter-in-law, Domonique Stallworth.

Testimony in opposition to Clemency was provided by Lucas County Prosecuting Attorney Julia Bates and representatives from the Office of the Ohio Attorney General, Stephen Maher and Matthew Hellman.

Testimony in opposition was also provided by the victim’s wife, Mary Ellen Gordon and the victim’s two brothers Michael and Stephen Manning.

Present and offering written testimony in opposition were surviving family members of Donald Harris; Clark’s other Aggravated Murder victim. Robert Roloff, another victim, was present and offered written testimony.

A fourth victim, Kim Henry offered written testimony, but was not present at the hearing. After careful review and deliberation concerning the documentary evidence and testimony provided, the Parole Board, with nine (9) members participating, voted and reached a unanimous decision to provide an unfavorable recommendation to the Honorable Bob Taft, Governor of the State of Ohio.

DETAILS OF THE INSTANT OFFENSE (84-5130): The following details are taken from the Ohio Supreme Court Decision dated August 24, 1988:

On the night of January 13, 1984, David A. Manning, an employee of the Clark service station at 3070 Airport Highway in Toledo, was shot and killed during an armed robbery of the establishment.

The record indicates that Joseph L. Clark, entered the service station at approximately 9:00 p.m. armed with a drawn .32 caliber revolver.

The victim was working alone and the subject demanded money. According to a statement made by the offender to Toledo police Detective Sergeant Larry Przeslawski, the victim told the subject that there was no money, but the subject repeated his demand for money.

The victim then walked to the back room of the service station, returned to the counter, handed the subject approximately $60 from the cash drawer and told him that was all of the money on the premises.

The subject "told him it wasn't all of it." The victim responded that there was no more money, but reached down and produced an envelope containing more cash.

According to subject's statement, the victim then tried to "force his way on me [subject]" whereupon the subject shot Manning once in the right upper chest.

The subject then ran out the service station door to his car and drove home. Shortly thereafter, two Toledo police officers arrived on the scene in response to a silent alarm.

One of the officers walked through the service station without seeing anyone. Upon looking further, he found the victim slouched behind the service counter.

On January 16, 1984, the subject was arrested after allegedly committing an assault and robbery at the Ohio Citizens Bank.

The arresting officer found a .32 caliber revolver in the subject’s coat pocket.

The next day, the subject, with the assistance of an appointed public defender, was arraigned in the Toledo Municipal Court for the assault and robbery at the bank.

The public defender was aware that the subject was a suspect in the Manning murder, and advised the subject not to discuss it with anyone but him.

Later that day, the record indicates that the subject tried to hang himself in his jail cell. Consequently, the subject was taken to St. Vincent's Medical Center for examination.

On January 23, 1984, the subject was released from the hospital and taken to the Toledo Police Detective Bureau where he was questioned by Detective James Lagger and Detective Sergeant Przeslawski.

The detectives asked the subject if he was under the influence of alcohol or drugs, and the subject responded that he was not. The detectives then gave the subject a standard form containing his rights as established in Miranda v. Arizona (1966).

After each paragraph was read, the detectives asked the subject if he understood what he had read. The subject responded each time that he understood what he had read and thereupon initialed each paragraph. After reading his rights, subject recited and signed the portion of the form waiving his Miranda rights.

Subsequently, the subject was interrogated by the detectives for a period covering one and threefourths hours. The subject was then moved to another room where his statements were tape recorded.

At that time, Sgt. Przeslawski again read the subject his Miranda rights, and the subject made a statement about a robbery-murder at a Lawson's store in Toledo. After making this statement, the subject was given another chance to hear his Miranda rights recited when the tape was replayed for him.

Eventually, the subject made a tape-recorded statement confessing to the murder of Manning after his Miranda rights were again recited to him.

The detectives gave the subject an opportunity to make any corrections in his statement upon replaying the tape for him. The subject offered no corrections, additions or changes to his tape-recorded statements relating to the Manning murder.

On February 2, 1984, Joseph L. Clark was indicted by the grand jury on six criminal counts, two of which alleged aggravated murder with an aggravating circumstance specification as set forth in R.C. 2929.04(A)(7).

The first murder count related to the incident at the Lawson's store. The second murder count is the subject of the instant appeal, and concerned the murder of Manning.

The subject entered a plea of not guilty to the murder of Manning and the case proceeded to trial.

On November 6, 1984, the jury returned a verdict finding the subject guilty of the aggravated murder of Manning while committing aggravated robbery.

As part of its verdict, the jury also found the subject guilty of the aggravating circumstance as charged in the specification of the indictment.

A mitigation hearing was held, and the jury recommended the penalty of death, having found that the aggravating circumstance outweighed the mitigating factors beyond a reasonable doubt.

The trial court agreed with the jury recommendation and sentenced Joseph L. Clark to death.

Joseph L. Clark was also sentenced to a term of LIFE imprisonment for the Aggravated Murder of Donald Harris, as charged in Count 1 of the indictment. On 1/12/1984, the subject entered the Lawson Store located at 4401 Hill Avenue in Toledo, Ohio.

He proceeded to jump up onto the counter and then over same. The subject then removed the cash drawer and money from the safe.

During the robbery, the subject shot Donald Harris (age 21) in the back of the head. The victim was later discovered in a pool of blood behind the counter by two witnesses who had entered the store to make purchases.

The victim was admitted to the Medical College in critical condition and died later from the gunshot wound. An investigation revealed that two black males had been observed waiting in an automobile outside the store, and that a black male was observed inside the store looking around prior to the robbery and shooting.

INMATE JOSEPH L. CLARK IS ALSO INCARCERATED FOR THE FOLLOWING CASES:

CASE #44598: According to the records of the Adult Parole Authority, the following is known:

On 2/23/67, Joseph L. Clark, while armed with a gun, robbed a female victim of her money and personal property in Toledo, Ohio. The subject was indicted for Armed Robbery on 3/30/67, and was subsequently found guilty of Unarmed Robbery.

On 7/31/67, the subject was sentenced to 1- 25 years at the Ohio State Reformatory, inmate #73534 and ordered to pay court costs.

On 10/17/67, the subject was released and placed on shock probation for a period of three years. On 1/19/70, his probation was revoked due to his conviction in Case #46819 and he was returned on 1/28/70. The subject was administratively transferred to the Ohio Penitentiary on 3/7/72, Inmate #134086. He was paroled on 11/30/73 and later returned as a parole violator due to his convictions for new offenses.

CASE #46819: According to the records of the Adult Parole Authority, the following is known:

On 6/19/69, the victim, age 79, was asleep in his apartment when he was struck several times on the head by an intruder. It was determined that that the weapon used to inflict these injuries was a bumper jack. The victim was hospitalized for two days as a result of his injuries. Investigation at the scene revealed that the victim’s billfold containing $10.00 and personal papers had been taken from his trouser pocket. The trousers were on a chair next to his bed. The victim did not see his assailant - therefore, could not identify him. Police were able to lift two fingerprints from the window where the intruder had entered the apartment. The prints were found to belong to Joseph L. Clark.

The subject was subsequently arrested on this charge on 7/8/69. He was indicted on 8/14/69 for Breaking & Entering an Inhabited Dwelling in the Night Season. The subject was referred by the Court to Lima State Hospital on 8/28/69. He was committed on 9/2/69, for thirty days mental observation, and returned to the Lucas County Jail on 10/6/69, after he was determined to be legally sane. His diagnosis was anti-social personality with secondary drug dependency.

On 12/15/69, the subject entered a plea of guilty to the lesser included offense of Breaking & Entering – Uninhabited Dwelling in the Night Season and was referred for a Pre-Sentence Investigation.

On 1/19/70, the subject was sentenced to the Ohio State Reformatory, until released according to law. The sentence was to be served concurrently with Case #44598. He was admitted under inmate #134086.

He was granted a parole on 11/30/73, and later returned to the institution as a parole violator due to his convictions in several new offenses.

CASE #CR-74-5795: According to the Lucas County Adult Probation Department Pre- Sentence Report completed on this case, the following is known: On 5/6/74, at 7:15pm, an armed robbery attempt was reported by the owner of Corvett’s Sunoco located in Toledo, Ohio.

The victim related that a 1970 gray Oldsmobile operated by a male later identified as Joseph L. Clark, entered his service station to purchase gasoline. The victim filled the tank as requested.

The subject then followed the victim into the station where he provided a credit card registered to a Booker T. Washington as payment for the gasoline. Approximately 15 minutes later, a male, later identified as James E. Moore also entered the station asking to fill a can with gasoline.

The victim was attempting to fill the can when he noticed Moore pulling a sawed-off shotgun out from under his coat. Moore told the victim to, “give it all to me”, or words to that effect.

The victim then grabbed the shotgun and there was a brief struggle involving all three individuals, during which the victim was able to run free from his assailants. A witness was able to obtain the license number of Clark’s automobile, which led to his arrest on 5/8/74.

The subject was indicted for Aggravated Robbery. On 7/29/74, he pled guilty to the offense of Robbery. On 9/19/74, he was sentenced to 5-15 years. The subject was admitted on 9/26/74, inmate #139-937. He was released to parole on 3/20/79 and later returned to the institution due to his continued criminal activity.

CASE # 79-6869: According to the Lucas County Adult Probation Department Report and the Toledo Police Department Report, the following is known:

On 8/27/79, Joseph L. Clark and another man identified as Rubin Blackshear, entered the One Price Tire Store in Toledo, Ohio. Mr. Blackshear went to the back of the store with the manager, leaving the subject alone. Upon returning to front of the store, the manager observed the cash register open and that the subject was about to drive away. Mr. Blackshear then ran and jumped in the car and fled.

The manager of the store signed an affidavit charging the subject with Grand Theft. The total amount of loss was estimated to be $265.79.

On 9/19/79, Toledo Police observed the subject run a light. Upon checking with the Record Bureau a warrant was found for the subject’s arrest in connection with the above crime. When officers approached the subject’s automobile, he drove off. A chase ensued and the subject was finally apprehended and arrested.

On 4/28/80, the subject was sentenced to six months to five years, to be served consecutive to Case #80-5450. He was admitted on 5/2/80, inmate #158291. He was released to parole on 12/23/82, and returned to the institution after being convicted in the instant offense.

CASE #80-5450: According to Adult Parole Authority Report and the Lucas County Sheriff’s Department Report, the following is known:

On 2/20/80, at approximately 3:00 p.m., Joseph L. Clark was transported from the Toledo House of Corrections to the Lucas County Jail. Upon exiting the bus in the sally-port area of the jail, the subject broke free and ran across several streets. A Sheriff’s Deputy chased after the subject, but lost him.

The Deputy then noticed fresh footprints in the snow on the other side of a fence, so he continued over the fence into a parking lot. A witness then drove up and advised that the subject had jumped into a parked van in front of a nearby building.

The Deputy, with the assistance of an off-duty Toledo Police Officer, approached the van and took the subject back into custody. The subject was indicted for Escape (1 count).

On 4/28/80, the subject pled guilty to the indictment and was sentenced to 1 to 5 years consecutive with Case #79-6869. The subject was released to parole on 12/23/82 and later returned to the institution upon his conviction in the instant offense.

APPLICANT’S STATEMENT:
Mr. Clark was interviewed by Board Member Jim Bedra on April 5, 2006 at the Ohio State Penitentiary. Assisting Mr. Bedra and present during the interview was Parole Board Parole Officer, Ted Morrison. Also present at the interview was Mr. Clark’s attorney, George Pappas.

The interview was observed via teleconference by representatives from the Ohio Attorney General’s Office, Stephen Maher and Matthew Hellman. Also observing was Judy Coakley, Parole Board Executive Assistant.

Mr. Clark readily admitted to committing the Aggravated Murder of David Manning. His version of the instant offense does not differ in substantial detail from the official record.

He also admitted to his other crimes during his 1984 crime spree in which he shot and killed Mr. Harris, shot and wounded Mr. Roloff and robbed Ms. Reno. He stated that he was in need of money to purchase drugs. He left his mother’s house to find a filling station to rob.

He cased out a Clark Gas Station and watched for customer traffic to cease. Once the attendant (Mr. Manning) was alone, he entered the station and put a gun to Mr. Manning’s back, ordering him to open a safe.

When the victim had difficulty doing so, he ordered him to give up the money from the cash register. Mr. Manning complied with this demand. Clark admits he was on the opposite side of the counter from the victim.

Clark suggested the victim cussed at him and made a movement that caused him to fear a possible advancement from Mr. Manning, so he shot him. He stated that in several other robberies, victims had tried to physically stop him and in his thought process, he felt the same was about to happen again. He said he did not mean to shoot Manning and that it was an accident. After shooting Manning, he left the premises with the money given from the cash register.

At one point during the interview, Mr. Clark began to cry, explaining that he is losing his life because of his use of drugs. In the same context, he suggested that if his life was spared he could be of help to younger inmates by steering them away from drugs.

He is not a burden to the state evident by his positive institutional conduct. When questioned about his impressions of the impact of his actions on his victims and their families, he initially responded “I don’t know what to say.” After a significant pause, he was again asked to respond. He did so by simply saying, “I am sorry. I would like to be forgiven. It was an accident.”

He spoke of the hardship and embarrassment he has caused his family. He asked them not to attend the hearing on April 11, to spare them further embarrassment.

He spoke of his daughter Tina Stallworth who was herself a victim of homicide and the pain that has caused him. He said he has regular contact with his family. He is still hoping for Clemency and would like to die old. He ended by saying he is prepared to die if Clemency is not granted and asks God to forgive him and to accept him in heaven.

PRIOR RECORD:
JUVENILE:
According to the records of the Lucas County Juvenile Court, Lucas County Adult Probation Department and the Adult Parole Authority, the subject has the following record as a juvenile:

4/12/60 Larceny from Toledo, Ohio Probated to mother (Age 11) Store Details: The subject and a co-delinquent admitted stealing from approximately five local stores.

6/23/62 Theft Toledo, Ohio Probated to mother (Age 13) and fined $2.00 Details: The subject and a co-delinquent took a wheel off another youngster’s bike.

4/25/63 Robbery Toledo, Ohio Probated to mother - (Age 14) case adjusted Details: The subject and six other juveniles participated in an unarmed robbery.

9/1/63 Auto Theft Toledo, Ohio Probation (Age 14) Details: The subject and others stole an auto belonging to John Slack. The car was driven by the subject and was subsequently involved in a car accident.

10/4/63 Auto Theft Toledo, Ohio Probation (Age 14) Details: The subject and others stole an auto belonging to James Carter.

10/26/63 Probation Violation, Toledo, Ohio Probation continued (Age 14) Poor Associates Details: The subject was arrested along with Willie Baker, who was under investigation for delinquent behavior.

11/18/63 Theft (Larceny Toledo, Ohio Probation continued (Age 14) of Money) Details: The subject took $25 from Virgil’s Gulf Station located in Toledo, Ohio.

10/7/64 Carrying a Toledo, Ohio Probation continued (Age 15) Concealed Weapon Details: The subject was involved with 10 co-delinquents who had created a disturbance at the Indiana Avenue YMCA. The subject had in his possession a razor, without a handle. The subject stated that he had found the razor on his way to school.

11/13/64 Auto Theft Toledo, Ohio Committed to Ohio (Age 15) Youth Commission Details: On 11/06/64, the subject stole an auto from the Ontario store parking lot to drive four co-delinquents to a store. He had the car for 24 hours.

1/25/65 1. Parole Violation Toledo, Ohio Committed to Ohio (Age 15) 2. Truancy Youth Commission - 3. Resisting Arrest Fairfield School for Boys from 2/1/65 to 7/15/65. Details: The subject participated in a purse snatching.

11/8/65 Carrying a Toledo, Ohio Continued on Parole (Age16) Concealed Weapon Details: The subject was found to have a long knife in his possession during a disturbance.

3/9/66 Parole Violation Toledo, Ohio Continued on Parole (Age 17) Details: The subject was arrested for riding in a stolen car while on parole.

3/14/66 Burglary Toledo, Ohio 4/7/66: Recommitted to Ohio (Age 17) Youth Commission- Fairfield School for Boys on a parole violation from 4/7/66 to

9/26/66. Details: The subject was involved in the burglary of Miller’s Coin-Op Services located in Toledo, Ohio.

OTHER ADJUDICATIONS:
The subject was also before the court for the following: 3-16-61 Assault (adjusted); 10-14-61 Discharging Slingshot (adjusted); 8-13-63 Malicious Destruction of Property (adjusted): 10-4-63 No Operator’s License (court costs); 12-16-63 Petty Larceny (adjusted); 2-1-65 Unarmed Robbery (adjusted). The subject was also charged with Deporting on several occasions; however, same was handled unofficially.

DISMISSED, NOLLED AND/OR UNKNOWN ADJUDICATIONS:
In September 1963, the subject was charged with Auto Theft on 6 occasions; dispositions unknown. In October 1963, the subject was charged with Theft; disposition unknown. On 10/25/63, the subject was charged with Complicity to Sexual Assault. This charge was the result of the subject dragging a female victim into his home and then watching her be sexually assaulted by an associate. The disposition of this charge is unknown.

ADULT:
According to the FBI, BCI, Adult Parole Authority, Toledo Police Department and the Lucas County Adult Probation Department, the subject has the following record as an adult:

2/23/67 Unarmed Robbery Toledo, Ohio Instant Offense, 7/31/67: (Age 18) Case #44598 Sentenced to 1 - 25 years (inmate #73534); 10/17/67: Granted 3 years Shock Probation; 1/19/70: Probation Revoked; Original Sentence of 1-25 years imposed concurrent with Case #46819; 11/30/73: paroled;

9/26/74: returned as a parole violator due to his conviction in case #74-5795; 3/20/79: paroled; 4/28/80: parole revoked due to conviction in Case #79-6869 and Case #80- 5450; 12/23/82: paroled; Parole revoked due to conviction in Case #84-5130.

6-27-67 Petty Larceny Toledo, Ohio 3 days, court costs (Age 19)

1/20/68 Altering or Toledo, Ohio Incarcerated at the Toledo (Age 19) Forging Forms House of Corrections from Case #45478 1/20/68 to 7/20/68. Details: The subject signed a fictitious name on a motor vehicle bill of sale.

11/14/68 Petty Larceny, Toledo, Ohio Incarcerated at the Toledo (Age 19) Assault & Battery on House of Corrections from Police Officer 11/14/68 to 12/14/68.

6/14/69 Inducing Panic Toledo, Ohio $10 fine, court costs (Age 20)

6/21/69 Aggravated Riot Toledo, Ohio $15 fine, court costs (Age 20)

6/26/69 Discharging Toledo, Ohio $50 fine (Age 20) Firearm or Fireworks

07/08/69 Breaking & Toledo, Ohio Instant Offense: 1/19/70: (Age 20) Entering Committed to Ohio State Case #46819 Reformatory (inmate #134086) concurrent with Case# 44598: 11/30/73: paroled; 9/26/74, returned as a parole violator due to his conviction in case #74-5795;

3/20/79: paroled; 4/28/80: parole revoked due to conviction in Case #79-6869 and Case #80-5450;

12/23/82: paroled; Parole revoked due to conviction in Case #84-5130.

5/8/74 Robbery Toledo, Ohio Instant Offense: 9/19/74: 5- (Age 25) Case #74-5795 15 years; 9/26/74: Admitted (inmate #139-937); 3/20/79: paroled; 4/28/80: parole revoked due to conviction in Case #79-6869 and Case #80- 5450; 12/23/82: paroled; Parole revoked due to conviction in Case #84-5130.

9/19/79 Grand Theft Toledo, Ohio Instant Offense, 4/28/80: (Age 30) Case #79-6869 ½ -5 years consecutive to 80-5450 (Inmate #158291),

12/23/82: paroled; Parole revoked due to conviction in Case #84-5130.

2/20/80 Escape Toledo, Ohio Instant Offense, 4/28/80: (Age 31) Case #80-5450 1-5 years (Inmate #158-291); 12/23/82: paroled; Parole revoked due to conviction in Case #84-5130.

1/17/84 Aggravated Murder Toledo, Ohio Instant Offense, 3/4/85: (Age 35) with specifications Count 1: Life Imprisonment, (2 counts) 11/28/84: Count 2, DEATH Case #84-5130

OTHER CONVICTIONS:
On 5/29/68, the subject was charged with Due Regard for which he received a $45 fine, ($35 suspended) and Leaving Scene of an Accident for which he was fined $15 and court costs.

On 3/8/69, he was charged with Disorderly Conduct, for which he received a $15 fine and court costs.

On 4/29/69, he was cited for Stop Sign Violation and was fined $15 and court costs.

On 5/8/74, the subject was charged with Obstructing Justice for which he received a $15 fine.

On 7/31/79, he was cited for a Red Light Violation and received a $20 fine.

On 9/19/79, the subject was charged with Due Regard for which he received 5 days in jail and his license was suspended 1 year; Eluding Police Officer for which he was sentenced to 5 days in jail; and Red Light for which he was sentenced to 2 days in jail.

On 1/1/83, the subject was cited with Failure to Return License for which he received a $25 fine.

On 2/20/83, he was cited with Turning Rules and was fined $30 and court costs.

On 10/24/83, the subject was charged with Operating Vehicle at Stop Signs and received a $15 fine and court costs.

On 11/29/83, the subject was cited for Excessive Smoke and Noise, for which he was ordered to pay court costs and for Impeding Traffic for which he was sentenced to 5 days in jail.

On 12/10/83, he was charged with Display of Lighted Lights and was ordered to pay court costs.

On 1/16/84, the subject was charged with Traffic Control Signals for which he was sentenced to 2 days jail; Operating Vehicle at a Stop Sign for which he was sentenced to 2 days jail; Speeding for which he was sentenced to 8 days jail and for Operating Vehicle at a Stop Sign (2 counts) for which he was sentenced to 4 days jail. He was also charged with Fleeing a Police Office for which he was convicted, but further information is not available as to his sentence.

DISMISSED/NOLLED AND UNKNOWN DISPOSITIONS:
The following charges were dismissed:

7/11/67 Armed Robbery; 1/20/69 Assault (continued indefinitely); 4/8/69 Assault and Battery (continued indefinitely); 4/15/69 Backing Limitations; 6/21/69 Resisting Arrest (continued indefinitely); 6/26/69 Disorderly Conduct, Intoxicated (continued indefinitely); 6/24/79 Carrying a Concealed Weapon; 7/7/69 Grand Theft; 9/18/74 Assault; 9/19/79 Eluding Police Officer, Red Lights (2 counts), Headlight Requirement; Felonious Assaults; Carrying a Concealed Weapon; Handgun Owners Card; 11/22/83 Disorderly Conduct, Assault. No disposition could be located for the following: 1/20/68, License and Vehicle Laws; 5/9/74, Slow Speed; and on 10/27/79, Due Regard. From 10/12/83 to 12/27/83, the subject committed five (5) Armed Robberies; all of these cases were cleared as a result of the subject confessing to the crimes. Charges were not pursued due to the subject’s indictment in Case #84-5130.

INSTITUTIONAL ADJUSTMENT:
Joseph L. Clark was admitted to the institution on March 22, 1985. The Parole Board was provided an Institutional Summary Report indicating a positive adjustment to incarceration. There are no remarkable rule infractions during his incarceration warranting comment.

PROPONENTS TO CLEMENCY:
A written application and documentation outlining the reasons Joseph L. Clark should receive Executive Clemency was filed with the Parole Board. On April 11, 2006, Attorney George Pappas presented oral testimony in support of the application. Reasons expressed in favor of the granting of Executive Clemency are as follows:

• Mr. Clark has admitted to having committed his crimes and has expressed acceptance of responsibility and remorse for his conduct both verbally and through his own actions.

• Mr. Clark is not a threat to anybody as he is no longer the aggressive person he once was during his early years. He is a different person now.

• Mr. Clark is a product of a troublesome childhood.

• Mr. Clark’s conduct was exacerbated by an inadequate intellectual level which has been diagnosed within the “dull normal” range.

• Mr. Clark’s behavior has been affected by an Organic Brain Syndrome as diagnosed by Michael M. Gelbort, PhD, Clinical Neuropsychologist on 6-28-96.

• Mr. Clark is inept emotionally as he kept things inside, with no ability or understanding of seeking help for himself.

• Mr. Clark had a long standing and untreated drug dependency with onset during his teenage years and extending into adulthood.

• Coupled together, Mr. Clark’s drug-induced state of mind during the commission of his criminal acts, his dull-normal range of intelligence and inept ability to seek help to understand and treat his psychological issues all contributed to his life of crime.

• Mr. Clark has continued support from his family, which includes his mother, brother, 2 children and many grandchildren.

• Joseph Clark pleads for clemency and asks for a commutation of his death sentence to a life sentence.

Domonique Stallworth, the inmate’s daughter-in-law, provided an oral statement on April 11, 2006. She explained that Mr. Clark did not want his family present at the hearing so as to spare them from anguish and embarrassment. She however expressed her need to represent the family despite Mr. Clark’s request that no family member be present. She expressed condolences to the Harris family. She stated that Mr. Clark is truly apologetic for his actions and has the support of his family despite what he has done.

The Parole Board considered all the above factors presented by the applicant and by his counsel. We assessed their points of mitigation as follows:

• Mr. Clark indeed admits to the Aggravated Murder of David Manning. He also admits to his other offenses. He verbally expresses remorse and accepts full responsibility for his actions.

However, he is unable to verbalize the impact his actions had on his victims and their survivors. His comment from the April 5, 2006 interview with the Board suggests that he may not fully understand the harm he has caused. (Please refer to the Applicant Interview section of this report for further elaboration of his comments regarding victim impact).

• Mr. Clark contends he is a different person today than when he committed his crimes and no longer a threat to harm anybody. The Board finds that a significant number of aging offender’s propensity for violence tends to diminish as they get older. This is not unusual; nor is it a significant factor when considering the magnitude of the extreme violence we see in this particular case.

• By all accounts, Mr. Clark had a troublesome childhood. We recognize the effects of his dysfunctional childhood and give that factor slight weigh. However, this alone does not sufficiently outweigh the extensive aggravating factors replete in this case.

• Mr. Clark has been diagnosed within a dull normal range of intelligence. There is however no substantial information to conclude that he is mentally retarded. He is in the lower tier of normal intelligence.

• Mr. Clark was diagnosed by one neuropsychologist as having an Organic Brain Syndrome. The United States Court of Appeals for the Sixth Circuit noted in their decision that Clark was evaluated by a psychologist and psychiatrist and neither concluded that he suffered from organic brain damage.

• Mr. Clark‘s long standing drug dependency seemingly went untreated. However it was Mr. Clark’s denial of his problem that averted him away from treatment. By his own admission, he attempted to hide his addiction from his family and from those in a position to help him seek treatment.

• The cumulative effect of the above factors may have contributed to his criminal conduct. Yet, the brutality inflicted by Clark cannot be justifiably explained away by speculation that his actions were caused by factors adversely working together in a short duration of a crime spree. His well established prior criminal conduct, both as a juvenile and as an adult, signifies a propensity for violent behavior.

• It appears that Mr. Clark indeed has the support of family members. His desire for clemency appears sincere. However those are insufficient reasons to warrant a favorable action of clemency.

OPPONENTS:
Julia Bates, Lucas County Prosecuting Attorney, and Stephen Maher of the Ohio Attorney General’s Office represented the State of Ohio at the hearing before the Parole Board on April 11, 2006. Arguments offered in opposition to the granting of Executive Clemency included:

?? Clark went on a nine-day robbery spree in Toledo, Ohio. Clark first robbed one victim at gunpoint (Kim Reno - January 8, 1984), then killed two victims (Donald Harris - January 12, 1984, and David Manning, January 13, 1984) and finally seriously wounded a fourth victim (Robert Roloff - January 16, 1984).

On November 6, 1984, a jury in Lucas County, Ohio, found Clark guilty of the aggravated murder of David Manning, the second murder victim. The jury sentenced Clark to death.

?? Clark appealed the district court's decision to the United States Court of Appeals for the Sixth Circuit.

On appeal, Clark was permitted to argue (1) his trial counsel's failure to obtain a neuropsychologist and pharmacologist to testify at Clark's suppression hearing and trial about Clark's inability to voluntarily and knowingly waive his rights against selfincrimination; and (2) trial counsel's failure to obtain and introduce at mitigation evidence of Clark's organic brain syndrome, drug addiction and withdrawal, and his troubled childhood.

In denying Clark's argument, the Sixth Circuit noted "Clark was examined by a psychiatrist and a psychologist. Neither expert concluded that Clark suffered from organic brain damage, nor did either suggest that Clark needed further neurological testing.”

?? The evidence in this case is conclusive that Joseph Clark murdered David Manning during the course of a robbery.

After a full trial, a jury came to the only appropriate conclusion: Clark was guilty and deserved to be sentenced to death.

The Ohio Supreme Court then reweighed the aggravating and mitigation factors and properly affirmed the conviction and sentence. Clark has been afforded more than 20 years of appellate review, and no court has held differently.

For these reasons, the State respectfully urges the Parole Board to recommend that Governor Taft NOT grant clemency to Joseph L Clark.

The Parole Board has considered the voluminous documents and oral presentation submitted by the State. We find their submissions to be credible and with overwhelming merit to justify execution of the sentence issued by the court.

VICTIM STATEMENTS:
Mary Ellen Gordon the victim’s wife, along with Michael and Stephen Manning, the victim’s brothers, attended the Clemency hearing and read prepared statements describing their incredible loss and stated opposition to the granting of clemency. Copies of their statements are attached to this report.

CONCLUSION:
Joseph L. Clark is scheduled to be executed on May 2, 2006. Mr. Clark was interviewed by the Parole Board on April 5, 2006. The Ohio Parole Board reviewed the documents and deliberated extensively on the information provided.

While there was some mitigation in the evidence of early childhood disruptions within the family, a long history of drug dependency, and a dull normal intellectual level, these factors were insufficient to counterbalance the magnitude of the aggravating circumstance in this case.

Clark’s reign of terror during his crime spree caused the death of two men and serious bodily injury to another.

A justifiable basis for mercy cannot be found. There was nothing presented to suggest any manifest injustice in the sentence of death. Accordingly, there was insufficient credible information to warrant an affirmative recommendation for clemency.

RECOMMENDATION:
Following consideration of available information, the Ohio Parole Board, with nine (9) members participating, recommends to the Honorable Bob Taft, Governor of the State of Ohio, by a vote of nine (9) to zero (0) that Executive Clemency be denied in the case of Joseph L. Clark.

 
 

National Coalition to Abolish the Death Penalty

Joseph Clark, OH - May 2, 2006

Do Not Execute Joseph Clark!

Joseph Clark, a 57-year-old black man, faces execution on May 2 for the murder of David A. Manning.

In January of 1984, Clark, armed with a gun, is said to have entered the Lucas County convenience store where Manning was working. He demanded money, which Manning gave him.

Clark insisted that there was more, and Manning eventually produced an envelope containing more money. At this point, Manning allegedly “tried to ‘force his way on [Clark].’” Clark then shot Manning and fled the scene of the crime.

He was apprehended following a bank robbery a few days later. Police matched the gun from the robbery to the bullet used to kill Manning.

Shortly after he was arrested, Joseph Clark tried to hang himself in his jail cell. He was taken to the hospital, where he remained for several days.

Upon his release from the hospital, Clark was taken to the police station where detectives explained his Miranda rights to him and had him sign a form indicating that he understood these rights.

Then, Clark signed another section of the form, indicating that he waived his Miranda rights, before confessing to the murder of David Manning.

A psychiatrist familiar with Clark’s case testified at trial that Clark had a sufficiently low I.Q. to be considered “borderline defective” and that on top of this, his mental functioning had been impaired by brain damage sustained during his suicide attempt. Nonetheless, Clark’s confession was introduced at trial and Clark was found guilty.

In preparing his appeal, Clark hired a neuropsychologist, who found Clark to have Organic Brain Syndrome (a physical disorder in the brain) which existed before the suicide attempt, but was likely agitated by it.

The neuropsychologist went on to say that this disorder could cause Clark’s mental abilities to become significantly diminished, especially when he is under stress.

Clark argued before the 6th Circuit Court of Appeals that his attorney was defective for failing to discover this information at the time of the trial. Though the majority opinion disagreed, Judge Gilbert Merritt filed a dissenting opinion.

Merritt stated that, in accordance with the U.S. Supreme Court’s holding in Rompilla v. Beard, Clark’s trial lawyer should have investigated Clark’s mental disability and presented his findings as mitigating evidence.

Clark’s diminished mental capacity should keep him off of death row for two reasons. First, his Organic Brain Syndrome and history of substance abuse at the time of the crime should be sufficient mitigation to preclude his execution.

Second, those same factors, along with the brain damage caused by his suicide attempt, should make his confession inadmissible, as he likely didn’t understand his rights, or perhaps even realize what he was saying.

It would be completely irresponsible to permit this execution to proceed. Please write to Gov. Bob Taft on behalf of Joseph Clark!

 
 

State v. Clark, Not Reported in N.E.2d, 1986 WL 15254 (Ohio 1986). (Direct Appeal)

Appeal from Lucas County Common Pleas Court, No. CR 84-5130.

DECISION AND JOUNRAL ENTRY

This cause is before this court on appeal from a judgment of the Lucas County Common Pleas Court. Joseph Lewis Clark, the appellant, was indicted by the Lucas County Grand Jury in a six count indictment, two counts of which involved aggravated murder charges with aggravating circumstance specifications. The facts of the case sub judice can be briefly stated.

On or about the 13th day of January, 1984, appellant, while armed with a firearm, did purposely cause the death of David A. Manning, an attendant at a Clark Gas Station, in Lucas County, Ohio, while committing or fleeing immediately after committing aggravated robbery.

Appellant entered a plea of not guilty and the case proceeded to trial on October 15, 1984. On November 6, 1984, the jury unanimously returned a verdict finding appellant guilty beyond a reasonable doubt of the aggravated murder of David A. Manning while committing or fleeing immediately after committing aggravated robbery.

The same jury, as part of its verdict, also found, beyond a reasonable doubt, the aggravating circumstances as charged in the specification of the indictment and that Joseph Lewis Clark was the principal offender.

A mitigation hearing was held and the same jury, on November 13, 1984, unanimously returned the recommendation that Joseph Lewis Clark be sentenced to death, having found that the aggravating circumstances outweighed the mitigating factors beyond a reasonable doubt.

Thereupon, the trial court, pursuant to R.C. 2929.03, made separate findings of fact, the trial judge concluded beyond a reasonable doubt that the aggravating circumstances as found by the jury outweighed any mitigating factors and, therefore, concurred with the jury in their recommendation.

The trial court adopted the recommendation of the jury and sentenced Joseph Lewis Clark to death by electrocution in the electric chair on February 23, 1985. A stay of execution was granted pending this appeal.

I

Our first segment of this decision will focus upon various evidentiary and procedural rulings made by the trial court during the guilt phase of the trial.

The ruling which initially will be considered is the trial court's denial of a motion to suppress a statement which appellant made on January 23, 1984, to a member of the Toledo Police Department.

Appellant contends that his rights under the Fifth, Sixth and Fourteenth Amendments to the United States Constitution were violated. Sometime prior to the interrogation on January 23, 1984, appellant had appeared in the Toledo Municipal Court for arraignment on charges distinct from the case sub judice.

At this arraignment, a public defender had been appointed to represent appellant as to those charges. In considering whether appellant's rights were violated, we will look to Edwards v. Arizona (1981), 451 U.S. 477, 482-483,rehearing denied 91981), 452 U.S. 973, wherein the United States Supreme Court has stated:

“ * * * It is reasonably clear under our cases that waivers of counsel must not only be voluntary, but must also constitute a knowing and intelligent relinquishment or abandonment of a known right or privilege, a matter which depends in each case ‘ upon the particular facts and circumstances surrounding that case, including the background, experience, and conduct of the accused.’ Johnson v. Zerbst, 304 U.S. 458, 464 (1938). See Faretta v. California, 422 U.S. 806, 835 (1975); North Carolina v. Butler, 441 U.S. 369, 374-375 (1979); 5iBrewer v. Williams, 430 U.S. 387, 404 (1977) ; Fare v. Michael C., 442, U.S. 707, 724-725 (1979).” (Emphasis added.)

In the case sub judice, the appellant was not unfamiliar with the criminal justice system.

On January 23, 1984, prior to making this statement, he had been advised of his Miranda rights in excess of nine times in relation to many crimes under investigation.

He was not under the influence of drugs and the police had been given his treating physician's authorization to talk with him at that time.

From the record before this court, it appears that not only was the waiver of counsel done voluntarily, but appellant knew what he was doing and he intelligently relinquished his constitutional rights as to this charge.

We find that appellant's rights under the Fifth Amendment to the United States Constitution were not violated.

Proceeding now to a consideration of the issue of whether appellant's Sixth Amendment rights were violated, we shall consider the case of Michigan v. Jackson (1986), 475 U.S. 625, 89 L.Ed.2d 631, 639, for guidance: “ * * * In United States v. Gouveia, we explained the significance of the formal accusation, and the corresponding attachment of the Sixth Amendment right to counsel: ‘[G]iven the plain language of the Amendment and its purpose of protecting the unaided layman at critical confrontations with his adversary, our conclusion that the right to counsel attaches at the initiation of adversary judicial criminal proceedings “is far from a mere formalism.” Kirby v. Illinois, 406 U.S., at 689, 92 S.Ct., at 1882.

It is only at that time “that the government has committed itself to prosecute, and only then that the adverse positions of government and defendant have solidified.

It is then that a defendant finds himself faced with the prosecutorial forces of organized society, and immersed in the intricacies of substantive and procedural criminal law.” ’ 467 U.S., at 189, 81 L.Ed.2d 146, 104 S.Ct. 2292.

“As a result, the ‘Sixth Amendment guarantees the accused, at least after the initiation of formal charges, the right to rely on counsel as a “medium” between him and the State.’ Maine v. Moulton, 474 U.S., at ---, 88 L.Ed.2d 481, 106 S.Ct. 477. * * * ” (Emphasis added.)

The line of cases of Maine v. Moulton (1985), ---‘ U.S. ----, 88 L.Ed.2d 481, Edwards v. Arizona, supra, and United States v. Gouveia (1983), 467 U.S. 180, are distinguishable from the case sub judice in that they deal with situations where the offender has been formally charged with a crime and the incriminating statement subsequently obtained is introduced in the pending trial.

In the case sub judice, appellant had been formally charged with a separate and distinct crime and an attorney had been appointed to represent him in that case.

The statement obtained did not pertain to that charge nor was the statement introduced in the trial of that pending charge. Rather, it was only after appellant made the statement that he was formally charged in the instant case.

The United States Supreme Court in Maine v. Moulton, supra, shed light on this distinguishing aspect when it stated the following: ‘* * * Moreover, law enforcement officials investigating an individual suspected of committing one crime and formally charged with having committed another crime obviously seek to discover evidence useful at a trial of either crime.

In seeking evidence pertaining to pending charges, however, the Government's investigative powers are limited by the Sixth Amendment rights of the accused.

To allow the admission of evidence obtained from the accused in violation of his Sixth Amendment rights whenever the police assert an alternative, legitimate reason for their surveillance invites abuse by law enforcement personnel in the form of fabricated investigations and risks the evisceration of the Sixth Amendment right recognized in Massiah.

On the other hand, to exclude evidence pertaining to charges as to which the Sixth Amendment right to counsel had not attached at the time the evidence was obtained, simply because other charges were pending at that time, would unnecessarily frustrate the public's interest in the investigation of criminal activities. * * * ” Maine v. Moulton, supra, at 498. (Emphasis added, Footnote omitted.)

Therefore, this line of cases does not prohibit the introduction of statement at a subsequent trial as long as the Fifth Amendment rights of the offender have not been violated.

There is no Sixth Amendment violation in the case sub judice, as the court stated in United States v. Gouveia, supra, at 187-188: “ * * * In Kirby v. Illinois, [406 U.S. 682] a plurality of the Court summarized our prior cases as follows: “ ‘In a line of constitutional cases in this Court stemming back to the Court's landmark opinion in Powell v. Alabama, 287 U.S. 45, it has been firmly established that a person's Sixth and Fourteenth Amendment right to counsel attaches only at or after the time that adversary judicial proceedings have been initiated against him. See Powell v. Alabama, supra; Johnson v. Zerbst, 304 U.S. 458; Hamilton v. Alabama, 368 U.S. 52; Gideon v. Wainwright, 372 U.S. 335; White v. Maryland, 373 U.S. 59; Massiah v. United States, 377 U.S. 201; United States v. Wade, 388 U.S. 218; Gilbert v. California, 388 U.S. 263; Coleman v. Alabama, 399 U.S. 1.

“ ‘ * * * [W]hile members of the Court have differed as to the existence of the right to counsel in the contexts of some of the above cases, all of those cases have involved points of time at or after the initiation of adversary judicial criminal proceedings-whether by way of formal charge, preliminary hearing, indictment, information, or arraignment. ’ [Kirby, supra, ] at 688-689 * * *.

The view that the right to counsel does not attach until the initiation of adversary judicial proceedings has been confirmed by this Court in cases subsequent to Kirby. See Estelle v. Smith, 451 U.S. 454, 469-470 (1981); Moore v. Illinois, 434 U.S. 220, 226-227 (1977); Brewer v. Williams, 430 U.S. 387, 398-399 (1977); United States v. Mandujano, 425 U.S. 564, 581 (1976) (opinion of BURGER, C.J.).” (Emphasis added.) From this it becomes readily apparent that there must be adversary judicial proceedings pending at the time before a person's Sixth Amendment rights come into question.

In the case sub judice, there was no formal charge pending against appellant involving the homicide of David A. Manning, therefore, adversarial judicial proceedings had not been initiated and appellant's Sixth and Fourteenth Amendment rights were not violated. Having previously found that appellant's Fifth Amendment rights had not been violated, we find appellant's first assignment of error not well-taken.

The next evidentiary issue involves the admission of a firearm that became inoperable prior to the appellant being able to have an independent expert perform any tests upon it.

Appellant contends that his Fifth and Fourteenth Amendment rights have been violated alleging that the government had excessively test fired the gun, thus making it inoperable. The trial court admitted the gun into evidence over the objection of appellant's attorney.

When ascertaining whether such an evidentiary ruling is erroneous, the Supreme Court of Ohio stated in State v. Martin that: “ * * * In order for appellant to succeed on this proposition, he must show that the trial court abused its discretion in the admission or exclusion of the evidence in question, and that the appellant has been materially prejudiced thereby. See State v. Hymore (1967), 9 Ohio St.2d 122 [38 O.O.2d 298].” State v. Martin (1985), 19 Ohio St.3d 122, 129,certiorari denied(1986), 474 U.S. 1073, 88 L.Ed.2d 808,rehearing denied(1986), 475 U.S. 1040, 89 L.Ed.2d 360.

The record is devoid of any evidence that the government acted in bad faith in test firing the gun in excess of eighty shots.

There must be a showing that the government acted fraudulently or in bad faith in rendering the gun inoperable. Chandler v. United States (C.A. 10, 1963), 318 F.2d 356. We find no abuse of discretion.

Appellant could have had his independent expert use any of these test shots in performing an independent analysis. There has been no showing that any of appellant's constitutional rights have been violated nor has appellant been prejudiced. For these reasons, appellant's second assignment of error is found not well-taken.

Appellant argues that it was error for the trial court not to instruct on the lesser included offense of involuntary manslaughter in his sixth assignment of error.

The Supreme Court of Ohio, in discussing when a trial court is required to instruct on a lesser included offense stated in State v. Wilkins (1980), 64 Ohio St.2d 382, 387-388: “The mere fact that an offense can be a lesser included offense of another offense does not mean that a court must instruct on both offenses where the greater offense is charged.

This court made it clear in State v. Nolton (1969), 19 Ohio St.2d 133, that juries were not to be presented with compromise offenses which could not possibly be sustained by the adduced facts.

“If the evidence adduced on behalf of the defense is such that if accepted by the trier of fact it would constitute a complete defense to all substantive elements of the crime charged, the trier of fact will not be permitted to consider a lesser included offense unless the trier of fact could reasonably find against the state and for the accused upon one or more of the elements of the crime charged, and for the state and against the accused on the remaining elements, which, by themselves, would sustain a conviction upon a lesser included offense.”

The facts in the case sub judice, as presented by the state, evidence the fact that the appellant was armed when he entered the Clark Gas Station on January 13, 1984. As appellant entered the station at approximately 9:00 p.m., he had his .32 caliber revolver drawn.

Appellant asked for the money and the attendant, David A. Manning, handed him the money out of the cash register.

After doing this, appellant advised him that this was not all of the money he had. Manning then proceeded to give him an envelope and it was at this point that the appellant shot him.

A trial court is only vested with authority to give a charge on a lesser included offense when the evidence warrants it. It would be error for the trial court to give a charge on a lesser included offense when the evidence supports all of the elements of the original crime charged.

In the case sub judice, the evidence firmly established that a homocide was committed during the perpetration of an aggravated robbery. There can be no interpretation of these facts which would warrant a jury to find appellant not guilty of aggravated murder but guilty of the offense of involuntary manslaughter.

As the Supreme Court of Ohio stated in State v. Clark (1978), 55 Ohio St.2d 257, 260,certiorari denied(1979), 440 U.S. 950: “ * * * appellant participated in the planning and commission of the robbery, and also acquiesced in the employment of a deadly weapon to accomplish this crime.

Under these circumstances appellant must have realized that the victim's life would be endangered by the manner and means of performing the act conspired, and accordingly, appellant is bound by the consequences naturally resulting from the furtherance of the conspiracy to commit the aggravated robbery.”

In the case sub judice, appellant was acting alone and when he armed himself with a loaded gun, he is responsible for the consequences. In conclusion, it was not error for the trial court to refuse to instruct on involuntary manslaughter.

Appellant's sixth assignment of error is found not well-taken. Since assignments of error seven and eight are interrelated and each address the tape recording, they will be addressed together. Appellant contends that it was error for the trial court to permit the taped confession to be replayed during jury deliberations.

This issue was discussed in United States v. Bizanowicz (C.A. 1, 1984), 745 F.2d 120, 123, wherein the court stated: “No showing of prejudice has been made and no abuse of discretion is apparent in the manner in which the trial court allowed the tape and player to go to the jury. The tape had already been played to the jury. ordinarily, exhibits are sent to the jury room.

An audio exhibit should not be relegated to muteness because it can be perused only through the use of tape player. See United States v. Humphrey, 696 F.2d 72, 75-76 (8th Cir.1982), cert. denied, 459 U.S. 1222, 103 S.Ct. 1230, 75 L.Ed.2d 463 (1983).” (Emphasis added.)

Appellant further contends that a new trial was warranted since he was not present when the tape was played to the jury. Appellant relies upon the case of State v. Grisafulli (1939), 135 Ohio St. 87, however, that case and the other cases decided since Grisafulli were dealing with instances where additional instructions were being given by the trial court in the absence of the accused.

The appellant has a right to be present when additional instructions are given, but this was a situation where the jury merely wanted to listen to the tape recording. We can find no authority to support the proposition that appellant would have a right to be present during the jury's deliberations.

No record was made to be present during the jury's deliberations. No record was made of what transpired when the tape was replayed for the jury.

We must therefore presume the validity and regularity of the lower court's proceedings. See Knapp v. Edwards Laboratories (1980), 61 Ohio St.2d 197. Accordingly, appellant's seventh and eighth assignments of error are found not well-taken.

II We shall now consider the manner in which the trial court permitted the state to voir dire jurors at to their opinions and ability to follow the law as to the death penalty.

The United States Supreme Court in Lockhart v. McCree 91986), 326 U.S. 367, 90 L.Ed. 137, on May 5, 1986, reversed the Eighth Circuit Court of Appeals in Grigsby v. Mabry (1985), 758 F.2d 226, wherein the court held that “death qualification” of a jury does not violate the accused's constitutional right to an impartial jury.

The Court specifically stated that: “ * * * We have consistently rejected this view of jury impartiality, including as recently as last Term when we squarely held that an impartial jury consists of nothing more than ‘ jurors who will * * * ” Lockhart v. McCree, supra, at 151. (Emphasis in original.)

This issue has been considered by the Supreme Court of Ohio in State v. Scott (1986), 26 Ohio St.3d 92, 97, wherein the court stated: “The United States Supreme Court reestablished and somewhat clarified the Witherspoon standard in Wainwright v. Witt, [469 U.S. 412].

Therein, the court at 852 dispensed with the reference to ‘automatic’ decision making and the ‘ “unmistakable clarity” ’ standards of Witherspoon. Instead, the Witt court held that the proper standard was ‘whether the juror's views would “prevent or substantially impair the performance of his duties as a juror in accordance with his instruction and his oath.” ’ [ Wainwright v. Witt, supra, at 424].

“In State v. Rogers (1985), 17 Ohio St.3d 174, 178, this court reevaluated Jenkins in light of the United States Supreme Court's modification of the Witherspoon standard in Witt. The Rogers court concluded that the Witt standard was applicable to this jurisdiction. * * * ”

In the case sub judice, eight jurors were so excused. In each of the eight instances, the jurors either could nor or would not consider the imposition of the sentence of death under any circumstances. Pursuant to r.C. 2945.25(c), jurors who harbor such convictions may be challenged for cause. State v. Williams (1986), 23 Ohio St.3d 16; State v. Buell (1986), 22 Ohio St.3d 124; State v. Martin, supra; State v. Mapes (1985), 19 Ohio St.3d 108,certiorari denied(1986), 476 U.S. 1178, 90 L.Ed.2d 991; State v. Rogers (1985), 17 Ohio St.3d 174. Appellant's third assignment of error is found not well-taken.

III Having found no prejudicial error in appellant's guilt phase of the trial, we will not proceed to a consideration of the issues raised pertaining to alleged errors committed in the mitigation phase of the trial.

In his fourth assignment of error, appellant asserts that the trial court erred in allowing the state to introduce evidence concerning appellant's prior record during the mitigation phase of the proceedings.

The record discloses that the prior record of the appellant was presented by way of a stipulation which included the following offenses, “ * * * there is a stipulation that we can enter into which will save calling a number of witnesses this afternoon.

“The stipulation deals with the Defendant's prior record. We would indicate that part of the stipulation would indicate that on July 21, 1967, Case No. 44586, Lucas County Common Pleas Court, the Defendant was convicted of robbery: sentenced one to 25 years. He was released on 10-17, 1967.

“Further stipulation would indicate on January 19, 1970, the Defendant was convicted of breaking and entering and was sentenced and released on November 30 of 1973.

“Further the stipulation would indicate that on September 19 of 1974, the Defendant was convicted of robbery and was released on March 20 of 1979.

“Further stipulation indicates that on April 28 of 1980, Defendant was convicted of grand theft and escape and was sentenced to one and a half to 10 years and was released December 23 of 1982.”

And further by way of statement of one of appellant's attorneys: “ * * * the prosecution is prepared to stipulate that the escape charge that was mentioned and conviction of April of ‘80 was breaking away upon being transported outside of the County jail, running a couple of blocks, was apprehended within a matter of hours and taken back into custody.” R.C. 2929.04(B) provides in pertinent part: “ * * * trial jury, * * * shall consider, and weigh against the aggravating circumstances proved beyond a reasonable doubt, the nature and circumstances of the offense, the history, character, and background of the offender, * * *.” (Emphasis added.)

This statute makes it mandatory for the trier of fact to consider the history, character and background of the offender along with all of the seven factors set forth in R.C. 2929.04(B).

A prior criminal record certainly is part of the offender's history and background. To exclude an offender's record from consideration by the jury during the mitigation phase, especially in a case where two witnesses testified that the offender's life had been uneventful and that he had caused his mother little trouble, would be a distortion of the true history and background of the accused.

In addition, factor 5 of R.C. 2929.04(B) provides: “(5) The offender's lack of a significant history of prior criminal convictions and delinquency adjudications;” If the “lack of significant history of prior criminal convictions” is a mitigating factor then the presence of a record should certainly be considered as part of the offender's significant history. Accordingly, appellant's fourth assignment of error is found not well-taken.

Appellant next asserts in his fifth assignment of error that R.C. 2929.03(D)(2) is unconstitutional in that the “weighing” process is an inarticulate standard which denies him his rights under the Fifth, Eighth and Fourteenth Amendments.

This identical argument was presented to the Supreme Court of Ohio initially in State v. Jenkins (1984), 15 Ohio St.3d 164,certiorari denied(1985), 472 U.S. 1032, 87 L.Ed.2d 643,rehearing denied(1985), 473 U.S. 927, 87 L.Ed.2d 697, wherein the Supreme Court relied upon Proffitt v. Florida (1976), 428 U.S. 242,rehearing denied(1976), 429 U.S. 875, in rejecting it. State v. Scott (1986), 26 Ohio St.3d 92; State v. Buell, supra; State v. Rogers, supra.

Appellant's fifth assignment of error is found not well-taken. Appellant contends that it was error for the jury to be advised that their decisions as to a sentence of death is merely a recommendation. We are aware of the remand by the United States Supreme Court of State v. Rogers, supra, in light of Caldwell v. Mississippi (1985), 472 U.S. 320, 86 L.Ed.2d 231.

In Rogers case is still pending on remand in the Supreme Court of Ohio. We are bound by the holdings of the Supreme Court of Ohio in State v. Scott, supra; State v. Buell, supra; and State v. Maurer (1984), 15 Ohio St.3d 239,certiorari denied(1985), 472 U.S. 1012, 86 L.Ed.2d 728,rehearing denied(1985), 473 U.S. 924 87 L.Ed.2d 694.

Therefore, we find no merit to appellant's ninth assignment of error and, accordingly, it is found not well-taken.

Appellant in his tenth assignment of error contends that the prosecutor committed prejudicial error in his final argument in the mitigation stage of the proceedings when he made comments concerning the fact that Dr. Kisin was a paid defense witness.

At the outset we note that there was no objection by defense counsel when the comments were made by the prosecuting attorney during final argument.

The Supreme Court of Ohio was held in the case of State v. Williams (1977), 51 Ohio St. 112, 117, vacated on other grounds (1978), 438 U.S. 911, that: “ * * * This court has consistently held that an appellate court need not consider an error which a party complaining of the trial court's judgment could have called, but did not call, to the trial court's attention at a time when such error could have been avoided or corrected by the trial court. * * * ” (Citations omitted.)

In addition, however, we find after a thorough review of the entire mitigation hearing record we cannot say the the comments by the prosecutor were either improper or prejudicial to the appellant. See State v. Smith (1984), 14 Ohio St.3d 13.

Great latitude is vested in the sound discretion of the trial court as to final argument. The Supreme Court of Ohio in State v. Maurer, supra, at 269, stated: “At the outset, we observe that ‘[c]onsiderable latitude is permitted in closing arguments, and the question is generally considered one falling in the first instance within the sound discretion of the trial court.’ State v. Pustare (1973), 33 Ohio App.2d 305, 312 [62 O.O.2d 450].

This court, in 5iGolamb v. Layton (1950), 154 Ohio St. 305 [43 O.O.194], at paragraphs three and four of the syllabus, held: “ ‘Although misconduct of counsel in argument to the jury is ever to be condemned, it does not always constitute grounds for ordering a mistrial or reversing a judgment. If the trial court promptly intervenes by admonition to counsel and appropriate4 instruction and it appears that a verdict for the party represented by such offending counsel is clearly justified by the evidence, the verdict may be allowed to stand. “ ‘Such matters often rest in the sound discretion of the trial court and where it is apparent from the particular facts and circumstances of the particular case that such discretion has not been abused a reviewing court will not ordinarily interfere.’ ”

After a thorough review of the evidence presented, we do not find that appellant was prejudiced by the comments nor can we say that without the prosecutor's comment the death penalty would not have been given.

Accordingly, appellant's tenth assignment of error is found not well-taken. We have now reached that point in our proceedings where this court must independently weigh the aggravating circumstances surrounding the homicide of David A. Manning against the factors appellant has presented which mitigate against the imposition of the death penalty pursuant to R.C. 2929.05(A).

In the case sub judice, the appellant was found guilty beyond a reasonable doubt of the aggravated murder of David A. Manning and the aggravated circumstance, set forth in the indictment, to wit: said homicide was committed while Joseph Lewis Clark was committing or fleeing immediately after committing aggravated robbery.

At the mitigation phase of the trial appellant presented several witnesses including his mother, daughter, son, a clinical psychologist, a professor of sociology at the University of Toledo, a member of the clergy committee at the Lucas County Jail, and an unsworn statement of the appellant.

The essence of all of this testimony was that appellant had a traumatic experience in 1963 when he lost his father unexpectedly, he fathered his first child at age fifteen, he was addicted to drugs, his wife prostituted so that they would have money to support their drug habits, his two children who testified both are in college, at the time of the offense his wife had been incarcerated for thirty days and, therefore, was unable to prostitute for appellant, and as a result he had to turn to committing aggravated robberies in order to obtain money to purchase drugs.

Appellant did express remorse and sorrow in killing David A. Manning. In considering all of the testimony presented during the mitigation phase of the trial, we find none of it falls within any of the fist six factors of R.C. 2929.04(B). Only factor seven remains which states “Any other factors that are relevant * * *.”

We find that in the instant case that this was a totally senseless cold-blooded killing. David A. Manning had turned the money over to appellant.

Appellant insisted that there was more money in the safe. Mr.Manning was in a kneeling position at the safe and was unarmed at the time appellant fired a shot into his chest. This was not appellant's first contact with the law.

We find that the mitigating factors do not outweigh the aggravating circumstances. Appellant's twelth assignment of error is found not well-taken.

Lastly, this court must consider the proportionality of the death sentence in this case as compared to those imposed in similar crimes in our district.

Capital punishment in this case cannot be viewed as disproportionate or excessive when compared to its imposition in State v. Rogers, supra, for kidnapping, rape and murder, or State vo. Esparza (August 22, 1986), Lucas App. No. L-84-225, unreported, wherein Esparza was convicted of an identical offense as appellant, the aggravated murder with a specification of aggravated robbery.

A review of these cases leads this court to the conclusion that the sentence of capital punishment in this case is not disproportionate with that of other cases. Appellant's eleventh assignment of error is found not well-taken.

On consideration whereof, the court finds that appellant was not prejudiced or prevented from having a fair trial and judgment of the Lucas County Court of Common Pleas is affirmed.

Appellant, Joseph Lewis Clark, has an automatic appeal to the Supreme Court of Ohio pursuant to R.C. 2929.05; we, therefore, will not remand this case to the trial court.

Rather, we order the clerk of this court to file a copy of this decision with the clerk of the Ohio Supreme Court within fifteen days of the issuance of this decision in accordance with R.C. 2929.05(A).

We further order a continuance of the stay of execution of sentence granted by the trial court pending appeal to the Supreme Court of Ohio. Costs to abide final determination by the Supreme Court of Ohio. CONNORS, P.J., and HANDWORK, and RESNICK, JJ., concur.

 
 

State v. Clark, Not Reported in N.E.2d, 1998 WL 484119 (Ohio 1998). (PCR)

KNEPPER, J.
This is an appeal from the judgment of the Lucas County Court of Common Pleas granting the state's motion for summary judgment, thereby denying appellant's petition for postconviction relief.

On November 6, 1984, following a jury trial, appellant, Joseph Lewis Clark, was found guilty of aggravated murder while committing aggravated robbery, and was found guilty of the aggravating circumstances as charged in the specification of the indictment.

On November 13, 1984, following a mitigation hearing, the jury found that the aggravating circumstances outweighed the mitigating factors and recommended the sentence of death.

On November 28, 1984, the trial court sentenced appellant to be put to death on February 23, 1985. Appellant's sentence of death was stayed pending the outcome of his appeal.

Appellant's conviction and sentence were affirmed by this court, State v. Clark (Dec. 24, 1986), Lucas App. No. L-84-443, unreported, and by the Ohio Supreme Court, State v. Clark (1988), 38 Ohio St.3d 252, 527 N.E.2d 844. Certiorari was denied by the United States Supreme Court. Clark v. Ohio (1989), 489 U.S. 1071, 109 S.Ct. 1355, 103 L.Ed.2d 823.

On November 1, 1996, appellant filed an amended petition for postconviction relief, pursuant to R.C. 2953.21. In response, the state filed a motion for summary judgment/motion to dismiss on March 11, 1997.

The trial court granted the state's motion for summary judgment on March 31, 1997, finding that appellant was not entitled to an evidentiary hearing because he failed to demonstrate substantive grounds for postconviction relief. Appellant appeals the decision of the trial court and raises the following assignments of error:

“ Assignment of Error 1 “THE TRIAL COURT ERRED WHEN IT GRANTED APPELLEE'S MOTION FOR SUMMARY JUDGMENT IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION, ARTICLE I, SECTIONS 2, 5, 9, 10 AND 16 OF THE OHIO CONSTITUTION, AND OHIO R.CIV .P. 56.

“ Assignment of Error 2 “THE TRIAL COURT ERRED IN ITS APPLICATION OF THE DOCTRINE OF RES JUDICATA TO APPELLANT'S CLAIMS FOR RELIEF, THUS VIOLATING HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 5, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION.

“ Assignment of Error 3 “THE TRIAL COURT ERRED IN DENYING APPELLANT'S CLAIMS OF INEFFECTIVE ASSISTANCE OF COUNSEL. (PETITIONER'S FIRST THROUGH SIXTH CLAIMS FOR RELIEF). THE FAILURE BY COUNSEL TO OBTAIN NECESSARY EXPERTS AND PRESENT AVAILABLE MITIGATING EVIDENCE VIOLATED APPELLANT'S RIGHTS AS GUARANTEED BY THE FIFTH, SIXTH, EIGHTH, NINTH AND FOURTEENTH AMENDMENTS TO THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 1, 2, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION.

“ Assignment of Error 4 “THE TRIAL COURT ERRED WHEN IT DENIED APPELLANT CLARK AN EVIDENTIARY HEARING ON HIS PETITION FOR POST-CONVICTION RELIEF, THUS VIOLATING HIS RIGHTS UNDER THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION.

“ Assignment of Error 5 “THE TRIAL COURT ERRED IN DISMISSING MR. CLARK'S PETITION FOR POST-CONVICTION RELIEF WITHOUT ALLOWING DISCOVERY TO SUPPORT THE CLAIMS CONTAINED IN THE PETITION IN VIOLATION OF THE FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, 16, AND 20 OF THE OHIO CONSTITUTION, AND OHIO R.CIV.P. 26

“ Assignment of Error 6 “THE TRIAL COURT ERRED IN DENYING APPELLANT'S PETITION TO VACATE OR SET ASIDE SENTENCE BECAUSE EACH OF THE TWENTY CLAIMS FOR RELIEF SET FORTH A CONSTITUTIONAL CLAIM UPON WHICH RELIEF SHOULD HAVE BEEN GRANTED, THUS VIOLATING APPELLANT'S FIFTH, SIXTH, EIGHTH, NINTH, AND FOURTEENTH AMENDMENTS OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTIONS 1, 2, 9, 10, AND 16 OF THE OHIO CONSTITUTION.

“ Assignment of Error 7 “OHIO DOES NOT PROVIDE AN ADEQUATE CORRECTIVE PROCESS IN VIOLATION OF THE DUE PROCESS, THE EQUAL PROTECTION, AND THE SUPREMACY CLAUSES OF THE UNITED STATES CONSTITUTION AND ARTICLE I, SECTION 2, 10, AND 16 OF THE OHIO CONSTITUTION.

“ Assignment of Error 8 “THE CUMULATIVE ERROR OF APPELLANT'S SUBSTANTIVE CLAIMS MERITS REVERSAL OR A REMAND FOR A PROPER POST-CONVICTION PROCESS.”

Appellant's first, second, third, fourth, and sixth assignments of error are related, in that, stated in various ways, he argues that the trial court erred in granting summary judgment as to his petition for postconviction relief.

In his first assignment of error, relying on the fact that he presented affidavits and other exhibits in support of his petition, appellant argues that summary judgment was improperly granted as genuine issues of material fact exist.

In his second assignment of error, because he presented evidence in support of his petition, appellant argues that his claims for relief could not have been fully litigated on direct appeal and, therefore, the trial court erred in finding that his claims were barred by the doctrine of res judicata.

In his third assignment of error, appellant argues that the trial court incorrectly found that he was not entitled to relief on his ineffective assistance of counsel claims.

In his fourth assignment of error, appellant argues that, because he presented evidence dehors the record that raised sufficient facts to support his claims, the trial court should have held an evidentiary hearing on his petition.

And, in his sixth assignment of error, appellant argues that he should have been granted relief on each of his twenty claims for relief.

Initially, we note that constitutional issues cannot be considered in postconviction proceedings where they have already been or could have been fully litigated on direct appeal. State v. Perry (1967), 10 Ohio St.2d 175, 226 N.E.2d 104, paragraph seven of the syllabus.

As such, “[u]nder the doctrine of res judicata, a final judgment of conviction bars a convicted defendant who was represented by counsel from raising and litigating in any proceeding except an appeal from that judgment, any defense or any claimed lack of due process that was raised or could have been raised by the defendant at the trial, which resulted in that judgment of conviction, or on an appeal from that judgment.” (Emphasis in original.) Id. at paragraph nine of the syllabus.

Additionally, with respect to claims of ineffective assistance of counsel, the Ohio Supreme Court has stated: “Where defendant, represented by new counsel upon direct appeal, fails to raise therein the issue of competent trial counsel and said issue could fairly have been determined without resort to evidence dehors the record, res judicata is a proper basis for dismissing defendant's petition for postconviction relief. ( State v. Hester, 45 Ohio St.2d 71, 341 N.E.2d 304 ***, modified.)” State v. Cole (1982), 2 Ohio St.3d 112, 443 N.E.2d 169, syllabus.

In order to be entitled to a hearing on a petition for postconviction relief, which claims ineffective assistance of counsel, the petitioner must submit evidentiary documents containing sufficient operative facts to demonstrate the lack of competent counsel and that the defense was prejudiced by counsel's ineffectiveness. State v. Jackson (1980), 64 Ohio St.2d 107, 413 N.E.2d 819, syllabus; State v. Kapper (1983), 5 Ohio St.3d 36, 448 N.E.2d 823. See, also, Cole, supra at 114, 443 N.E.2d 169.

(“Where ineffective assistance of counsel is alleged in a petition for postconviction relief, the defendant, in order to secure a hearing on his petition, must proffer evidence which, if believed, would establish not only that his trial counsel had substantially violated at least one of a defense attorney's essential duties to his client but also that said violation was prejudicial to the defendant.”)

With respect to granting a hearing, R.C. 2953.21(C) states in relevant part: “Before granting a hearing, the court shall determine whether there are substantive grounds for relief. In making such a determination, the court shall consider, in addition to the petition and supporting affidavits, all the files and records pertaining to the proceedings against the petitioner, including, but not limited to, the indictment, the court's journal entries, the journalized records of the clerk of the court, and the court reporter's transcript.”

“When determining whether there are substantive grounds for postconviction relief that would warrant a hearing, the affidavits offered in support of the petition should be accepted as true.” State v. Swortcheck (1995), 101 Ohio App.3d 770, 772, 656 N.E.2d 732, citing State v. Strutton (1988), 62 Ohio App.3d 248, 252, 575 N.E.2d 466.

Generally, an affidavit containing evidence of the availability of mitigating evidence and the failure of trial counsel to attempt to obtain the mitigating evidence sets forth sufficient operative facts to show substantial grounds for relief. Swortcheck at 772, 656 N.E.2d 732, citing State v. Scott (1989), 63 Ohio App.3d 304, 310-311, 578 N.E.2d 841.

In his first four claims for relief, appellant asserted that he was denied the effective assistance of counsel due to trial counsel's failure to obtain the assistance of a neuropsychologist, who could have provided at his suppression hearing, trial, and mitigation hearing, testimony regarding appellant's organic brain syndrome, and a pharmacologist, who could have provided testimony concerning appellant's opioid addiction and drug withdrawal.

Appellant attempted suicide by hanging while incarcerated on another matter, and was taken to the hospital for six days. Upon release from the hospital, appellant was taken to the Toledo Police Department and interrogated regarding the robbery-murder in this case.

After waiving his Miranda rights, appellant eventually confessed to the murder. Appellant sought to suppress this statement.

In his petition for postconviction relief, appellant asserts that his trial counsel should have presented testimony from a neuropsychologist and a pharmacologist to show that appellant was incapable of knowingly and voluntarily waiving his Miranda rights.

He argued that, because this evidence was not presented, his statement to the police was allowed at trial; thus, leading to his conviction.

In support of his petition, appellant offered the affidavits of Michael M. Gelbort, Ph.D., a licensed clinical psychologist, and Charles T. Kandiko, Ph.D., a doctor of pharmacology.

Dr. Gelbort was asked to conduct a neuropsychological evaluation of appellant and consider whether data obtained from that evaluation would have been relevant, had he been available at the time of appellant's trial.

In his report, Dr. Gelbort concluded in relevant part: “The patient exhibits an Organic Brain Syndrome (OBS) at the time of testing.

[T]he condition was present at the time of the offense for which he has been convicted and was made worse as a result of the effects of the suicide attempt.

It is likely that each of these problems contributed to the patient's neuropsychological dysfunction and that all were in effect and had an affect on his behavior at the time of his trial. Furthermore, his impaired cognitive abilities (caused by the OBS) would have caused him to be less able than a normal individual to comprehend the meaning of Miranda rights and be unable to weigh and deliberate his options in a normal fashion. This would have been the case at the time his confession was elicited in this case.

As noted, the patient's deficits are especially prevalent when he under stress, when affected by drug abuse (or withdrawal,) and in complex situations.

This would have been the case at the time when the confession was elicited and would have further caused his confession to be other than freely given in a knowing fashion.

“Finally, the patient's behavior has not only been affected by the Organic Brain Syndrome/cognitive dysfunction from which he suffers, but also from the acute effects of substance abuse and eventual withdrawal.

In particular, it is noted form the records that he was interrogated while withdrawing from psychoactive substances. Withdrawal is an emotionally and cognitively draining and debilitating experience during which cognitive abilities are further clouded or impaired from their operant state.

Patient's who are in withdrawal will often say or do whatever they are asked to end a situation (questioning or interrogation) which is most often found to be exhausting, confusing, and may be experienced as physically nauseating.

Information obtained from individuals in this state cannot be viewed as being as valid and accurate as that obtained form someone who is not under such duress and who may not acquiesce simply to end the interrogation.

“While the hypoxia occurred after the criminal act, the data show that there were significant cognitive deficits which would have been caused by other etiologies and which would have been present at the time of the criminal act.

It should also be noted that the patient's presentation is one where the lay person, and even a psychologist not trained in neuropsychology (or one who does not have the benefit of test data) could and likely would overlook the deficits.

Despite the neuropsychological deficits not having an overt, outwardly observable physical manifestation, they are real, readily observable in the test data, and the patient's history is clearly indicative of their presence.

Review of the patient's history obviously signal (and did signal at the time of the original trial) the presence of impaired functioning and should have lead to neuropsychological testing and investigation at that time.”

In Dr. Kandiko's affidavit, he stated that he was asked to conduct a neuropharmacological evaluation pertaining to appellant and consider whether data obtained from that evaluation would have been relevant at the time of appellant's trial in 1984.

Dr. Kandiko stated that he addressed two specific areas: the opioid withdrawal syndrome which affected appellant at the time of his arrest on capital charges and his mental status during his interrogation by police.

After discussing the various substance addictions suffered by appellant, Dr. Kandiko gave the following analysis and conclusion: “*** patients in opioid withdrawal have a tendency to be highly responsive to suggestion, and placebo effects are formidable. ***

“9. Mr. Clark, given his past history of opioid abuse (hydromorphone), was in my opinion suffering from opioid withdrawal at the time of his police interrogation. He had been in the hospital 6 days, but as the literature states a person in opioid withdrawal from a short-acting opioid will remain in severe withdrawal for as long as 10 days ***.

In addition, opioid abusers also experience prolonged withdrawal for as long as 6 months post detoxification ***. Mr. Clark was interrogated without having any detoxification treatment.

He would have been subject to all of the above physiological conditions with added anxiety and depression. A standard treatment for opioid abusers is to initially administer 20 mg methadone and adjust dosage as required ***.

Mr. Clark was never given the opportunity to undergo opioid treatment and detoxification. ***

“10. A person suffering form opioid withdrawal is known to experience severe anxiety, restlessness, depression and discomfort ***. [This is known as dysphoria.]

“11. Since Mr. Clark was never treated medically for his opioid addiction, he was most probably in a state of opioid withdrawal at the time of his interrogation by police. This opioid withdrawal would include the mental dysphoria state, as well as the other stated physiological symptoms that are known to occur, when medical treatment is absent ***.

Therefore, it is my opinion, from a scientific viewpoint, that Mr. Clark was suffering from opioid withdrawal with the concomitant dysphoria during the police interrogation of him on January 23, 1984. This dysphoric state most probably had an adverse effect on Mr. Clark's ability to reason, adapt to changing topics, and in general tolerate a three hour interrogation.”

Appellant argues that because a personal examination was not done of him, the trial court denied his motion to suppress his statements to the police.

Appellant cited this passage from the trial court's judgment entry: “The Court has carefully examined the testimony of both Dr. Mareska and Dr. Tanay. Although Dr. Mareska would not give a psychiatric opinion, his testimony did illuminate discrepancies in some of the significant items upon which Dr. Tanay based his conclusion.

The Court notes further that none of the hospital records relied upon contained any evaluations or progress reports of the defendant's mental or emotional condition.

This Court is hesitant to rely solely upon a psychiatric opinion based upon reconstruction of records without any personal examination of the defendant.” (Emphasis added.)

Appellant argues that he suffered prejudice by his counsel's failure to present such evidence during the hearing on the motion to suppress and during mitigation.

In essence, had the evidence been presented at the hearing on the motion to suppress, the trial court may have found that appellant did not voluntarily and knowingly waive his Miranda rights.

As such, his confession would have been suppressed and the jury would not have heard it. If the jury had not heard his confession, then he may not have been convicted. In any event, the absence of this evidence during mitigation may have kept him from receiving a lessor sentence.

In ruling upon appellant's petition for postconviction relief, the trial court held that “*** the uncontroverted facts firmly establish that a lawyer, untrained in neuropsychology, could not reasonably have been expected to have obtained neurological testing of petitioner.”

In making this finding, the trial court relied on the report of Dr. Gelbort, wherein he stated, “It should *** be noted that the patient's presentation is one where the lay person, and even a psychologist not trained in neuropsychology *** could and likely would overlook the deficits.”

The trial court denied appellant's claims stating that there was “no evidence from which to infer that trial counsels' decision not to hire a neuropsychologist fell below the standard of reasonableness ***.”

The trial court also noted that appellant failed to make a sufficient showing of prejudice and stated, “Focusing first upon the trial court's decision denying suppression of petitioner's confession, it is clear that the decision was made independent of any psychological testimony, evidence, or rebuttal; rather, the trial court determined that petitioner's confession was voluntarily based on petitioner's experience with criminal proceedings and his being repeatedly informed of his Miranda rights in the instant case.”

The standard for evaluating an ineffective assistance of counsel claim was enunciated by the Supreme Court of Ohio in State v. Bradley (1989), 42 Ohio St.3d 136, 538 N.E.2d 373, paragraphs two and three of the syllabus, as follows:

“2. Counsel's performance will not be deemed ineffective unless and until counsel's performance is proved to have fallen below an objective standard of reasonable representation and, in addition, prejudice arises from counsel's performance. ( State v. Lytle [1976], 48 Ohio St.2d 391, 358 N.E.2d 623 ***; Strickland v. Washington [1984], 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, followed.) “3. To show that a defendant has been prejudiced by counsel's deficient performance, the defendant must prove that there exists a reasonable probability that, were it not for counsel's errors, the result of the trial would have been different.”

Petitioners bear the burden to plead both elements in order to adequately state a claim of ineffective assistance of counsel. See Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819.

If the petition, affidavits, and/or supporting materials do not establish one of those elements, the petitioner has not stated a proper claim and the court may summarily dismiss the petition without a hearing. State v. Clark (April 17, 1998), Portage App. Nos. 96-P-0257 and 96-P-0258, unreported. There is “ ‘a strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance ***.’ “ Bradley, supra at 142, 538 N.E.2d 373, quoting Strickland, supra at 689.

Ohio presumes a licensed attorney is competent. Vaughn v. Maxwell (1965), 2 Ohio St.2d 299, 301, 209 N.E.2d 164. Counsel will not be deemed ineffective merely because a defendant is convicted and not acquitted. State v. Hunt (1984), 20 Ohio App.3d 310, 311, 486 N.E.2d 108.

In Strickland v. Washington (1984), 466 U.S. 668, 104 S.Ct. 2052, 80 L.Ed.2d 674, the Supreme Court determined the standard to be applied to claims of ineffective assistance of counsel: “The benchmark for judging any claim of ineffectiveness must be whether counsel's conduct so undermined the proper functioning of the adversarial process that the trial court cannot be relied on as having produced a just result.” Id., at 686.

Appellant did present evidence dehors the record that defense counsel could have presented during the suppression hearing; however, the evidence is insufficient to establish that counsel's performance was deficient or that the defense was prejudiced by counsel's ineffectiveness. See Bradley, supra.

Although defense counsel did not present an expert who had personally examined appellant, this fact alone does not demonstrate that counsel's actions fell below an objective standard of reasonable representation. Counsel did engage a psychiatrist to testify in appellant's behalf concerning his mental condition at the time of his confession.

Moreover, appellant's own neuropsychologist, Dr. Gelbort, stated that it would have been difficult for a lay person to recognize appellant's deficits: “It should *** be noted that the patient's presentation is one where the lay person, and even a psychologist not trained in neuropsychology *** could and likely would overlook the deficits.” Additionally, appellant failed to demonstrate prejudice as a result of counsel's failure to call Dr. Gelbort.

The Ohio Supreme Court has stated that evidence of police coercion or overreaching is necessary for a finding of involuntariness, and that simply evidence of a low mental aptitude on the part of the interrogee is not sufficient. State v. Hill (1992), 64 Ohio St.3d 313, 318, 595 N.E.2d 884.

Additionally, we note that, at the suppression hearing, the trial court heard testimony from a psychiatrist concerning appellant's diminished mental capabilities. Nevertheless, the trial court concluded that appellant's statements to the police were voluntarily made.

The trial court described the psychiatrist's testimony as follows: “Dr. Tanay testified that the defendant's state of mind at the time of his statements would have interfered with his ability to make choices in an informed, reasonable fashion.

This conclusion was based upon the hospital records of St. Vincent, the court-ordered psychiatric evaluation of the defendant conducted by the Court Diagnostic and Treatment Center, the defendant's juvenile records, various police documents, and the taped confession statements of the defendant.

Items of significance to Dr. Tanay included the following: the defendant's condition upon arrival at St. Vincent's wherein his pupils were nonreactive, he had no blood pressure, and an abnormal EEG; the Court Diagnostic and Treatment Center report of Dr. Archambeau wherein the defendant stated that he couldn't remember making the statements and that he (the defendant) had been unconscious for three or four days; the juvenile records of Clark which indicated an IQ of 75; and the police records which indicated that Clark had also confessed to something he didn't do.

Essentially, Dr. Tanay concluded that there was a reasonable medical certainty that Clark suffered both acute and chronic brain damage and that it was likely that Clark was still depressed, which, when taken together, would make a person more susceptible to others. ***”

Notwithstanding this testimony, the trial court held that appellant voluntarily waived his rights, finding that appellant was no stranger to the criminal justice system and that he had a psychiatric examination that indicated he displayed an exemplary knowledge of the workings of the criminal system.

The court also stated that it was “not dealing with a young, inexperienced individual who might be easily intimidated by the interrogation process; but, rather with someone who is fairly sophisticated concerning the criminal process.”

The trial court also found that there was no evidence of “physical deprivation, mistreatment, threats, or inducement.” Finally, the trial court considered the testimony of the interrogating officers.

The trial court noted that Detective James Lagger testified that appellant “was very lucid, alert, and responded properly to all questions asked,” that appellant responded that he was not under the influence of any drugs or alcohol or other mind-altering substance, and that appellant read aloud his rights, pronounced the words, had no difficulty concerning any of the words or terminology, and indicated that he understood what he had read.

With respect to Dr. Kandiko's testimony, the trial court also denied appellant's claims of ineffective assistance of counsel for failing to call a pharmacologist at the suppression hearing.

The trial court quoted Dr. Kandiko's opinion that “This dysphoric state most probably had an adverse effect on Mr. Clark's ability to reason, adapt to changing topics, and in general tolerate a three hour interrogation.”

The trial court then stated: “Such a showing simply does not allow reasonably for the conclusion that trial counsel, by failing to present such evidence, so undermined the proper functioning of the adversarial process that the trial court would not have reliably produced a just result.”

We agree with the trial court. Appellant made no showing that defense counsel was incompetent in failing to call a pharmacologist.

However, even assuming that defense counsel should have called a pharmacologist to discuss the effects of withdrawal, appellant has not demonstrated that this additional testimony would have changed the outcome of the suppression hearing, or the trial overall.

Regardless of the testimony from Dr. Kandiko, who did not examine appellant at the time of the confession, there was testimony that appellant was lucid, seemed relaxed, and stated that he was not under the influence of drugs or alcohol at the time of the confession.

With respect to counsel's failure to offer testimony from a neuropsychologist and pharmacologist during trial and mitigation, we find that appellant failed to establish that counsel was deficient in not presenting such evidence. We further find that appellant failed to demonstrate any resultant prejudice.

Appellant offered in mitigation, testimony regarding his mental state, drug addiction, and family history. Dr. Gelbort's and Dr. Kandiko's testimony regarding appellant's mental deficiencies and drug abuse would have been cumulative at best.

Hence, even accepting Dr. Gelbort's and Dr. Kandiko's affidavits as true, appellant failed to demonstrate that defense counsel's performance fell below an objective standard of reasonable representation or that appellant's defense was prejudiced from counsel's actions. See Bradley, supra.

In addition, appellant has not demonstrated that there is a reasonable probability that the result of the trial would have been different had the testimony been presented at any stage of the proceedings. See Strickland, supra. As such, appellant has failed to set forth sufficient operative facts to establish that he was denied the effective assistance of counsel.

Therefore, the trial court did not err in denying appellant's first, second, third, and fourth claims for relief without a hearing. In his fifth claim for relief, appellant argued that he was denied effective assistance of counsel by counsel's failure to properly investigate and present mitigating evidence which was available at the time of appellant's trial, including neuropsychological, psychological, pharmacological, and family information. The Ohio Supreme Court summarized appellant's mitigation testimony as follows:

“At the mitigation hearing, appellant called the Lucas County jail chaplain to testify to the morality of capital punishment, and a sociologist to testify to its lack of deterrent effect.

He called his mother to testify to the events of his life from his birth to his father's death in 1963 and from approximately 1983 to the time of his arrest.

Appellant also called Dr. Kisin, a psychologist, to testify about his discussions with appellant concerning the same period. Dr. Kisin also gave his opinion about appellant's state of mind during and after the murder and his prospects for rehabilitation. Appellant's two children testified that they did not want their father to be executed.

Additionally, appellant made an unsworn statement on his own behalf. For its part, the state called Sgt. Przeslawski, who testified that appellant told him he attempted suicide because he did not want to return to prison. “There is evidence in the record that the victim, David Manning, attempted to resist the robbery, and it could be argued that resistance to a robbery attempt constitutes inducing or facilitating the offense.

However, this would be an illogical reading of the statute. In our view, one has the right to use reasonable force to resist the commission of a crime.

Whatever ‘inducing or facilitating the crime’ may mean, it cannot mean a robbery victim, using no weapon, making an attempt to grab an armed robber.

Assuming that Manning's action did induce the offense, it would be entitled to little weight as a mitigating factor for the same reason. “Additionally, there is no evidence in the record of duress, coercion, or strong provocation, or that appellant's capacity to appreciate the criminality of his conduct or conform to the law was impaired by any mental disease or defect.

Appellant was thirty-five at the time of the offense, well past his majority, and no evidence suggests that his age is relevant to the crime or sentence. State v. Post (1987), 32 Ohio St.3d 380, 394-395, 513 N.E.2d 754, 768.

He has five prior felony convictions, and was the principal and only offender. Thus, the mitigating factors of R.C. 2929.04(B)(2) through (6) do not apply.

“The nature and circumstances of this crime are entitled to no great weight in mitigation. Appellant was a drug addict. His wife, who had been supporting his habit with her earnings as a prostitute, was in jail, and the appellant needed money.

Appellant stated that he robbed the service station to get money for drugs. This does not weigh heavily, if at all, in mitigation. Appellant's need for drugs may have led him to rob, but it certainly did not require him to kill in the course of the robbery. “Appellant was, however, disadvantaged by his history and background. His father died when he was fifteen, and he lacked significant parental discipline after that. His intelligence was described as dull normal at best, borderline retarded at worst.

Yet appellant has a high school equivalency degree and is literate. His low intelligence is entitled to some weight in mitigation. Cf. State v. Stumpf (1987), 32 Ohio St.3d 95, 106, 512 N.E.2d 598, 609.

Appellant's daughter testified that she loved him and both she and her brother did not want him to die. Such testimony has never been afforded great weight as a mitigating factor. “The evidence concerning appellant's family life is mixed. According to his daughter, Cheryl, appellant had made efforts to be a good father.

On the other hand, he let his wife prostitute herself to pay for his drug addiction. While a strong family background is entitled to some weight, Stumpf, supra, the circumstances here suggest that this factor should be given little weight.

“Appellant has stated that he feels remorse for his crime, and Dr. Kisin believed that his attempt at suicide demonstrated that. On the other hand, when Sgt. Przeslawski interrogated appellant, appellant originally denied what he had done. It is our belief that this denial does not indicate genuine remorse.

Additionally, appellant told Przeslawski that he attempted suicide because he could not face prison. Still, because appellant's professions of remorse are backed by some evidence, they should be assigned at least some slight weight. “Despite the existence of some mitigating factors, the aggravating circumstance outweighs them beyond a reasonable doubt; therefore, we find that the death sentence rendered herein is appropriate.

Appellant's remorse, his disadvantaged background, and his attempts to help his daughter cannot outweigh his killing Manning during an armed robbery. As the trial court observed, appellant “balanced [Manning's] life against a crass selfish motive .” State v. Clark (1988), 38 Ohio St.3d 252, 263-264, 527 N.E.2d 844.

Upon a review of the affidavits attached in support of appellant's petition, we find that none of the proposed witnesses would add any information to that which had been provided to the jury.

Therefore, even assuming that counsel should have attempted to obtain this additional evidence, because it was merely cumulative, appellant failed to demonstrate any resultant prejudice. See Bradley, supra.

Accordingly, the affidavits do not contain sufficient operative facts to demonstrate that appellant was denied the effective assistance of counsel during mitigation. Therefore, we find that the trial court did not err in denying appellant's fifth claim for relief without a hearing.

In his sixth claim for relief, appellant argued that he was denied the effective assistance of counsel because counsel failed to do the following: determine during voir dire each juror's opinion regarding capital punishment; object to statements to the jurors during voir dire and mitigation that a death verdict was a recommendation which the trial court could reject; object to the notion of diminished responsibility which accompanies the term “recommendation”; request that all side bar conferences be recorded; request that references to appellant's Lucasville GED be deleted; object to the trial court's definition of reasonable doubt; and conduct a thorough investigation into appellant's background and develop the testimony in this regard.

In support of this claim for relief, appellant submits the affidavit testimony of Attorney Cimerman who states that each of these alleged failures demonstrates an ineffective assistance of counsel.

Although Mr. Cimerman's affidavit is outside the record, his testimony adds no evidence for consideration that could not have been gathered from the record. As such, all the alleged errors raised by appellant could have been determined and fully litigated on appeal based upon the record before the court.

Moreover, appellant fails to establish that the outcome of the trial would have been different if not for counsel's alleged failures. Accordingly, appellant's sixth claim for relief is barred by the doctrine of res judicata. See Cole, supra.

In his seventh claim for relief, appellant argued that his conviction and sentence were void or voidable because he was denied the assistance of counsel after he was released from the hospital and in the custody of the police. Appellant does not offer any evidence dehors the record in support of this argument.

Accordingly, this claim was properly dismissed as appellant failed to provide sufficient operative facts to establish a constitutional violation. See Jackson, supra.

Appellant argued in his eighth claim for relief that his conviction and sentence were void or voidable due to the state's withholding of exculpatory or favorable evidence, as discovered on October 8, 1984 at the suppression hearing. Appellant, however, offers no evidence dehors the record in support of this argument.

Accordingly, as this matter could have been fully litigated on direct appeal, this claim is barred by the doctrine of res judicata. See Perry, supra.

Appellant argued in his ninth claim for relief that his conviction and sentence were void or voidable because he was tried in a forum that was unduly influenced by media coverage of his case, resulting in outrage by the community and creating political pressure to produce a death penalty verdict in this case.

In support of this claim, appellant provided a number of newspaper clippings evidencing the media coverage of appellant's trial.

The articles alone do not contain sufficient operative facts to demonstrate that appellant was denied a fair and impartial trial. As stated by the Ohio Supreme Court, “ ‘a careful and searching voir dire provides the best test of whether prejudicial pretrial publicity has prevented obtaining a fair and impartial jury from the locality.’ “ State v. Davis (1996), 76 Ohio St.3d 107, 111, 666 N.E.2d 1099, citing, State v.. Bayless (1976), 48 Ohio St.2d 73, 98, 357 N.E.2d 1035.

Accordingly, the trial court was correct in not conducting an evidentiary hearing and in granting the state's motion for summary judgment on this claim. See Perry, supra.

Appellant argued in his tenth claim for relief that he was denied the opportunity to examine prospective jurors during individual sequestered voir dire regarding pre-trial publicity, rather than during general voir dire as ordered by the trial court.

Although appellant again relies on the newspaper articles concerning his trial, the articles alone do not contain sufficient operative facts to demonstrate that appellant was denied a fair and impartial trial. This claim for relief could have been fully litigated on appeal based upon the record.

According, appellant's claim is barred by the doctrine of res judicata. See Perry, supra. Appellant argued in his eleventh claim for relief that he was deprived of a fair and impartial jury because of a potential juror being excused.

Appellant offers no evidence dehors the record regarding this claim. As such, this claim could have been fully litigated on appeal based upon the record in this case. Accordingly, appellant's claim is barred by the doctrine of res judicata. See Perry, supra.

Appellant argued in his twelfth claim for relief that he was prejudiced by the testimony of the victim's wife at trial.

Appellant offers no evidence dehors the record regarding this claim. As such, this claim could have been fully litigated on appeal based upon the record in this case. Accordingly, appellant's claim is barred by the doctrine of res judicata. See Perry, supra.

Appellant argued in his thirteenth claim for relief that he was prejudiced because the firearm allegedly used by appellant was rendered inoperable by agents of the state prior to appellant having an opportunity to have the firearm scientifically tested. This issue was fully litigated and considered on direct appeal and, therefore, is barred by the doctrine of res judicata. See Perry, supra.

Appellant argued in his fourteenth claim for relief that he was denied the effective assistance of counsel because appellant's firearms expert lacked the requisite credibility needed to be imparted to the jury.

Appellant offers no evidence dehors the record regarding this claim. Moreover, this claim could have been fully litigated on appeal based upon the record in this case. Accordingly, appellant's claim is barred by the doctrine of res judicata. See Cole, supra.

Appellant argued in his fifteenth claim for relief that he was denied a fair trial when the trial court allowed only four days for preparation for penalty phase proceedings.

This matter clearly could have been fully litigated on direct appeal and, therefore, is barred by the doctrine of res judicata. See Perry, supra, and Cole, supra.

Appellant argued in his sixteenth claim for relief that the trial court gave improper instructions and committed error during the mitigation phase of the proceedings. All of appellant's claimed errors could have been raised on direct appeal and fully litigated.

In fact, appellant's claim that the trial court incorrectly instructed the jury that its findings as to the sentence was a recommendation, and his claim that it was error for the state to inquire into appellant's past criminal history, were directly dealt with on appeal. Accordingly, appellant's sixteenth claim for relief is res judicata. See Perry, supra.

Appellant argued in his seventeenth claim for relief that the sentence of death is per se excessive and disproportionate to the penalty imposed in appellant's trial for aggravated murder.

This claim was raised before the Ohio Supreme Court in his twelfth proposition of law and fully considered. Accordingly, appellant's seventeenth claim is barred by the doctrine of res judicata. See Perry, supra. Appellant argued in his eighteenth claim for relief that he has been denied a meaningful proportionality review by the Ohio courts.

This matter could have been raised and fully litigated on direct appeal. As such, appellant's eighteenth claim is barred by the doctrine of res judicata. See Perry, supra. Appellant's nineteenth claim for relief, that death by electrocution is cruel and unusual punishment, could have been raised and fully litigated on direct appeal.

Accordingly, appellant's claim is barred by the doctrine of res judicata. See Perry, supra.

Appellant argued in his twentieth claim for relief that the cumulative effect of errors occurring during the pre-trial, guilt, and mitigation phases of his trial made his sentence of death unreliable and inappropriate.

Because this court finds no error in the trial court's granting of the state's motion for summary judgment and the denial of appellant's petition, without a hearing, we find that this claim was properly denied.

As there were no substantive grounds for relief, the trial court was correct in denying appellant's petition on all claims without a hearing.

Accordingly, we find appellant's first, second, third, fourth, and sixth assignments of error not well-taken. We affirm the trial court's granting of summary judgment as to all of appellant's claims in his petition for postconviction relief.

In appellant's fifth assignment of error, appellant argues that the trial court erred in dismissing his petition for postconviction relief without allowing discovery to support the claims contained in the petition.

Appellant served five duces tecum subpoenas, as follows: (1) Records Custodian, Lucas County Prosecutor's Office, requesting that the custodian bring any and all documents that were in his or her possession, custody, or control pertaining to this case and another of appellant's cases involving a different murder; (2) James Lagger, Toledo Police Department, requesting any and all records or notes pertaining to the investigation, arrest, and prosecution of appellant in this case; (3) David McCorvey, requesting any and all records or notes pertaining to the investigation, arrest, and prosecution of appellant in this case; (4) John C. Mareska, M.D., requesting any and all medical records and notes pertaining to the treatment given to appellant from January 17, 1984 to January 23, 1984 at St. Vincent's Hospital and any and all materials relating to testimony given at the pretrial suppression hearing on October 8, 1984; and (5) Records Custodian, Lucas County Prosecutor's Office, this time requesting any and all documents that are in his or her possession, custody, or control pertaining to an extensive list of cases.

A number of appellate districts have found that a trial court is not required to grant discovery during the initial stages of a postconviction proceeding. See, e.g., State v. Hill (Nov. 21, 1997), Hamilton App. No. C-961052, unreported; State v. Waddy, (June 10, 1997), Franklin App. No. 96APA07-863, unreported; State v. Campbell (Jan. 8, 1997), Hamilton App. No. C-950746, unreported; State v. Hawkins, (June 26, 1996), Hamilton App. No. C-950130, unreported; State v. Dennis (Nov. 19, 1997), Summit App. No. 18410, unreported; and State v. Benner, (August 27, 1997), Summit App. No. 18904, unreported.

We also have found that R.C. 2953.21 does not require the trial court to grant discovery during the initial stages of a post-conviction proceeding. State v.. Fox (May 16, 1997), Wood App. No. WD-96-031, unreported. If a trial court does not find substantive grounds for relief within the petition, it need not grant discovery. Hill, supra.

Here, the trial court did not rule on the state's motion to quash appellant's subpoenas; however, the trial court's denial of the postconviction petition implicitly denied appellant's discovery requests. See Hill, supra.

Based on the foregoing, we find that the trial court did not err in denying appellant's discovery requests. Accordingly, appellant's fifth assignment of error is found not well-taken.

In his seventh assignment of error, appellant argues that the remedy provided in R.C. 2953.21, the post-conviction statute, is inadequate. Appellant reasons that the remedy must be inadequate given the fact relief is rarely, if ever, granted. This assignment of error lacks merit and is therefore not well-taken. See State v. Fox (May 16, 1997), Wood App. No. WD-96-031, unreported.

In his eighth assignment of error, appellant asserts that the cumulative error of his substantive claims merits reversal or a remand for a proper postconviction process.

This court has thoroughly considered appellant's arguments and claims for relief. Having found no error in the trial court's denial of his petition, we find this assignment of error to be without merit.

Accordingly, appellant's eighth assignment of error is found not well-taken. The judgment of the Lucas County Court of Common Pleas is affirmed. Court costs of this appeal are assessed to appellant. JUDGMENT AFFIRMED.

A certified copy of this entry shall constitute the mandate pursuant to App.R. 27. See, also, 6th Dist.Loc.App.R. 4, amended 1/1/98. PETER M. HANDWORK, P.J., JAMES R. SHERCK and RICHARD W. KNEPPER, JJ., concur.

 
 


Joseph Lewis Clark

 

 

 
 
 
 
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