        [Cite as State v. Hunter, 2012-Ohio-2859.]



                        IN THE COURT OF APPEALS
               FIRST APPELLATE DISTRICT OF OHIO
                         HAMILTON COUNTY, OHIO




STATE OF OHIO,                                       :   APPEAL NO. C-090569
                                                         TRIAL NO. B-0600596
        Respondent-Appellee,                         :

      vs.                                            :      O P I N I O N.

LAMONT HUNTER,                                       :

        Petitioner-Appellant.                        :




Criminal Appeal From: Hamilton County Court of Common Pleas

Judgment Appealed From Is: Affirmed

Date of Judgment Entry on Appeal: June 27, 2012




Joseph T. Deters, Hamilton County Prosecuting Attorney, and Ronald W.
Springman, Jr., Assistant Prosecuting Attorney, for Respondent-Appellee,

Office of the Ohio Public Defender, Pamela Prude-Smithers, Chief, Death Penalty
Division, and Kimberly S. Rigby, Assistant State Public Defender, for Petitioner-
Appellant.
                    OHIO FIRST DISTRICT COURT OF APPEALS



Per Curiam.

       {¶1}   Petitioner-appellant Lamont Hunter appeals the Hamilton County

Common Pleas Court’s judgment denying his R.C. 2953.21 petition for postconviction

relief. We affirm the court’s judgment.

       {¶2}   In 2007, a three-judge panel convicted Hunter of aggravated murder,

rape, and endangering children in connection with the death of his girlfriend’s three-

year-old son, Trustin Blue. For aggravated murder, the panel sentenced Hunter to

death based on two death-penalty specifications: aggravated murder while committing

or attempting to commit rape, and aggravated murder of a child under the age of 13.

See R.C. 2929.04(A)(7) and (A)(9).

       {¶3}   Hunter unsuccessfully challenged his convictions in his direct appeal to

the Ohio Supreme Court, State v. Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960

N.E.2d 955, and in his 2008 postconviction petition. In this appeal from the denial of

his postconviction petition, he advances three assignments of error.

                                          I. The Evidence

       {¶4}   Hunter was convicted upon evidence that Trustin had died as a

consequence of a brain injury sustained while in Hunter’s care. When questioned by

emergency medical personnel and then law enforcement concerning the cause of the

injury, Hunter maintained that Trustin had fallen down his home’s basement steps.

But at trial, the emergency-room physician who had examined Trustin when he was

brought to the hospital and the deputy coroner who had conducted Trustin’s autopsy

testified that Trustin’s injuries were not consistent with a fall down carpeted steps. And

the deputy coroner offered her opinion that the cause of death had been a “diffuse brain

injury due to blunt impact/shaking injuries to the head.”

                                II. The Postconviction Claims

       {¶5}   In his first assignment of error, Hunter challenges the common pleas

court’s denial of his postconviction claims without an evidentiary hearing. In his


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                      OHIO FIRST DISTRICT COURT OF APPEALS



second assignment of error, he assails the court’s application of the doctrine of res

judicata to bar certain claims. We address these assignments of error together, and we

overrule them.

          {¶6}   To prevail on a postconviction claim, the petitioner must demonstrate a

denial or infringement of his rights in the proceedings resulting in his conviction that

rendered the conviction void or voidable under the Ohio Constitution or the United

States Constitution. R.C. 2953.21(A)(1). A postconviction petitioner bears the initial

burden of demonstrating “substantive grounds for relief,” through the petition, with its

supporting affidavits and other documentary evidence, and the trial record.        R.C.

2953.21(C).

          {¶7}   A postconviction claim is subject to dismissal without a hearing if the

petitioner has failed to support the claim with evidentiary material setting forth

sufficient operative facts to demonstrate substantive grounds for relief. Id.; State v.

Pankey, 68 Ohio St.2d 58, 59, 428 N.E.2d 413 (1981); State v. Jackson, 64 Ohio St.2d

107, 413 N.E.2d 819 (1980), syllabus. Conversely, “the court must proceed to a prompt

hearing on the issues” if “the petition and the files and records of the case show the

petitioner is * * * entitled to relief.” R.C. 2953.21(E).

          {¶8}   The common pleas court applied the doctrine of res judicata to bar some

of Hunter’s postconviction claims. Under the doctrine of res judicata, a judgment of

conviction bars a defendant from raising in any proceeding, other than a direct appeal

from that judgment, any claim “that was raised or could have been raised” in the direct

appeal. State v. Perry, 10 Ohio St.2d 175, 226 N.E.2d 104 (1967), paragraph nine of the

syllabus. Thus, res judicata bars a postconviction claim that could fairly have been

determined in the direct appeal, based upon the trial record and without resort to

evidence outside the record. Id.; State v. Cole, 2 Ohio St.3d 112, 114, 443 N.E.2d 169

(1982).




                                               3
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶9}    A postconviction petitioner may resist the application of res judicata to

bar his postconviction claim by supporting the claim with outside evidence. But merely

submitting outside evidence will not preclude the common pleas court from applying

res judicata to bar a claim. The claim must depend on the outside evidence for its

resolution. Id. Moreover, the outside evidence must be “competent, relevant and

material” to the claim; it must “meet some threshold standard of cogency,” i.e., it must

be more than “marginally significant”; and it must “advance the * * * claim beyond

mere hypothesis and a desire for further discovery.” State v. Coleman, 1st Dist. No. C-

900811, 1993 Ohio App. LEXIS 1486 (Mar. 17, 1993).

       {¶10} When a postconviction claim depends for its resolution upon outside
evidence, a common pleas court may not apply res judicata to dismiss the claim. Perry

at paragraph nine of the syllabus; Cole at 114. But a reviewing court may sustain the

claim’s dismissal on other grounds. State v. Peagler, 76 Ohio St.3d 496, 668 N.E.2d

4897, paragraph one of the syllabus; State v. Blankenship, 38 Ohio St.3d 116, 119, 526

N.E.2d 816 (1988). Accord State v. Gipson, 1st Dist. Nos. C-960867 and C-960881

(Sept. 26, 1997).

               A. Prosecutorial Misconduct—Withholding Material Evidence

       {¶11} In his 11th postconviction claim, Hunter contended that he had been
denied a fair trial by the state’s failure to disclose exculpatory evidence. He asserted

that the state had violated its duty to disclose exculpatory evidence in its possession,

and that the trial court had abetted the state’s violation of its duty by overruling eight of

his 14 pretrial motions for discovery and his motion asking the court to review, and

then seal for appellate review, a copy of the prosecutor’s file in his case.

       {¶12} The fair-trial guarantee of the Due Process Clause of the Fourteenth
Amendment to the United States Constitution imposes upon the state an obligation to

disclose to a criminal accused evidence material to the accused’s guilt or innocence.

Brady v. Maryland, 373 U.S. 87, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Such evidence is


                                              4
                    OHIO FIRST DISTRICT COURT OF APPEALS



“material” only if there is a “reasonable probability” that its disclosure would have

changed the outcome of the trial. United States v. Bagley, 473 U.S. 667, 682, 105 S.Ct.

3375, 87 L.Ed.2d 481 (1985). The determination of this probability entails an inquiry

into not whether a trial with the undisclosed evidence would have yielded a different

verdict, but whether the evidence, “considered collectively,” “could reasonably be taken

to put the whole case in such a different light as to undermine confidence in the

verdict.” Kyles v. Whitley, 514 U.S. 419, 434-436, 115 S.Ct. 1555, 131 L.Ed.2d 490

(1995). Accord State v. Ketterer, 126 Ohio St.3d 448, 2010-Ohio-3831, 935 N.E.2d 9, ¶

23-24; State v. Hughbanks, 1st Dist. No. C-010372, 2003-Ohio-187, ¶ 57.

       {¶13} In Hunter’s direct appeal, the Ohio Supreme Court rejected his challenge
to the overruling of his pretrial motion for disclosure of the state’s rebuttal witnesses

and his motion to seal the prosecutor’s file. Hunter, 131 Ohio St.3d 67, 2011-Ohio-

6524, 960 N.E.2d 955, at ¶ 133-136. His postconviction challenge fared no better.

Hunter neither specified the undisclosed exculpatory evidence nor supported his claim

with evidence outside the record. He instead cited successful nondisclosure challenges

advanced in this and other courts that, he insisted, demonstrate “an ongoing systemic

problem concerning the [non]disclosure of exculpatory evidence by the Hamilton

County Prosecutor’s Office” and “warrant[ed] the granting of discovery to demonstrate

that the chronic problem continued in [his] case.”

       {¶14} But a postconviction petitioner is not entitled to discovery to develop his
claims unless the petition and its supporting evidentiary material demonstrate

substantive grounds for relief. State v. Issa, 1st Dist. No. C-000793, 2001 Ohio App.

LEXIS 5762 (Dec. 21, 2001).        Because Hunter failed to support his claim with

evidentiary material setting forth sufficient operative facts to demonstrate substantive

grounds for relief, he was not entitled to discovery to develop the claim, see id., and the

claim was subject to dismissal without a hearing. See R.C. 2953.21(C); Pankey, 68 Ohio

St.2d at 59, 428 N.E.2d 413; Jackson, 64 Ohio St.2d 107, 413 N.E.2d 819, syllabus.


                                            5
                     OHIO FIRST DISTRICT COURT OF APPEALS



Therefore, the common pleas court properly dismissed Hunter’s 11th postconviction

claim.

                            B. Ineffective Assistance of Counsel

         {¶15} In claims 2 through 10 and 12 through 17, Hunter contended that he had
been denied the effective assistance of counsel by his trial counsel’s inadequate

preparation and presentation of his case during the guilt and penalty phases of his trial.

We hold that the common pleas court properly denied these claims without an

evidentiary hearing.

         {¶16} To prevail on a claim of ineffective assistance of counsel, a
postconviction petitioner must demonstrate (1) that counsel’s performance fell below

an objective standard of reasonableness, and (2) that counsel’s deficient performance

prejudiced him. Strickland v. Washington, 466 U.S. 668, 694, 104 S.Ct. 2052, 80

L.Ed.2d 674 (1984); State v. Bradley, 42 Ohio St.3d 136, 538 N.E.2d 373 (1989). To

establish prejudice, the petitioner must demonstrate that counsel’s deficient

performance “so undermined the proper functioning of the adversarial process that the

trial could not have reliably produced a just result.” State v. Powell, 90 Ohio App.3d

260, 266, 629 N.E.2d 13 (1993) (citing Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct.

838, 122 L. Ed. 2d 180 [1993], and Strickland).

         {¶17} Jury waiver. In his 8th claim, Hunter contended that his trial counsel
had been ineffective in counseling him to waive a jury trial and to proceed instead to a

trial before a three-judge panel.    A jury waiver must be voluntary, knowing, and

intelligent. Crim.R. 23; State v. Ruppert, 54 Ohio St.2d 263, 271, 375 N.E.2d 1250

(1978). And a waiver is presumptively so if it was executed and filed in conformity with

R.C. 2945.05 et seq. State v. Bays, 87 Ohio St.3d 15, 19, 716 N.E.2d 1126 (1999) (citing

United States v. Sammons, 918 F.2d 592, 597 [6th Cir.1990]).

         {¶18} The Ohio Supreme Court rejected Hunter’s challenge in his direct appeal
to counsel’s effectiveness in counseling his jury waiver. The court found nothing in the


                                            6
                     OHIO FIRST DISTRICT COURT OF APPEALS



trial record to rebut the presumption that the waiver had been voluntary. And it

concluded that “[u]nder the circumstances, [the jury waiver] appear[ed] to have been a

reasonable tactical decision.” Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d

955, at ¶ 48-55.

       {¶19} In support of his postconviction challenge, Hunter offered his own
affidavit. He averred that he had waived a jury trial because his counsel had convinced

him that a jury would be biased by substantial pretrial publicity and that voir dire

would be “long and drawn out,” and because he did not know, because counsel had

failed to advise him, that he could move for a change of venue, that his jury waiver

would limit his challenges on appeal, or that the vote of a single juror would prevent the

imposition of the death penalty.

       {¶20} In evaluating counsel’s performance, a reviewing court “must indulge a
strong presumption that counsel’s conduct f[ell] within the wide range of reasonable

professional assistance; that is, the defendant must overcome the presumption that,

under the circumstances, the challenged action ‘might be considered sound trial

strategy.’ ” Strickland, 466 U.S. at 689, 104 S.Ct. 2052, 80 L.Ed.2d 67 (quoting Michel

v. Louisiana, 350 U.S. 91, 101, 76 S.Ct. 158, 100 L.Ed. 83 [1955]). Accord Bradley, 42

Ohio St. 3d at 142, 538 N.E.2d 373. We perceive nothing in Hunter’s affidavit that

could fairly be said to have overcome that presumption, or that might have altered the

supreme court’s conclusion, based on the trial record, that counseling the waiver was

sound trial strategy. Thus, the common pleas court properly denied Hunter’s challenge,

in his 8th claim, to his counsel’s effectiveness in that regard.

       {¶21} Change of venue. In his 9th claim, Hunter asserted that counsel had
been ineffective in failing to request a change of venue on the ground of “extensive” and

“prejudicial” pretrial publicity. He supported the claim with copies of press releases

and news articles dating from Trustin’s January 2006 death through Hunter’s June

2007 trial. The media reports, he insisted, portrayed him as a child-abuser and linked


                                              7
                    OHIO FIRST DISTRICT COURT OF APPEALS



him to the “media frenzy” surrounding the August 2006 murder, in an adjacent county,

of a three-year-old boy by his foster parents.

       {¶22} Due process demands that a criminal accused be afforded “[a] fair trial in
a fair tribunal.” In re Murchison, 349 U.S. 133, 136, 75 S.Ct. 623, 99 L.Ed. 942 (1955).

Accord State v. Weiner, 37 Ohio St.2d 11, 15, 305 N.E.2d 794 (1974). And the right to a

jury trial secures to the accused the right to a fair trial by impartial jurors. Irvin v.

Dowd, 366 U.S. 717, 722, 81 S.Ct. 1639, 6 L.Ed.2d 751 (1961). Accord State v. Zuern, 32

Ohio St.3d 56, 68, 512 N.E.2d 585 (1987). When pretrial publicity threatens to deny

these rights, a trial court may grant a change of venue. Crim.R. 18(B); R.C. 2901.12(K).

       {¶23} The decision to grant a change of venue is committed to the sound
discretion of the trial court. State v. Maurer, 15 Ohio St.3d 239, 251, 473 N.E.2d 768

(1984). Ordinarily, proof of pretrial publicity will not, alone, compel a change of venue.

State v. Landrum, 53 Ohio St. 3d 107, 116-117, 559 N.E.2d 710 (1990). An accused

seeking a change of venue on the ground of pretrial publicity must demonstrate that a

juror was “actually biased” by exposure to that publicity. State v. Gross, 97 Ohio St.3d

121, 2002-Ohio-5524, 776 N.E.2d 1061, ¶ 29. And the “best test” of juror bias is voir

dire. State v. Bayless, 48 Ohio St.2d 73, 98, 357 N.E.2d 1035 (1976). But proof of

actual juror bias is not required, and juror bias may be presumed, in the rare case when

“inflammatory, prejudicial pretrial publicity * * * so pervades or saturates the

community as to render virtually impossible a fair trial by an impartial jury drawn from

that community.” Mayola v. Alabama, 623 F.2d 992, 997 (5th Cir.1980). Accord State

v. Yarbrough, 95 Ohio St.3d 227, 2002-Ohio-2126, 767 N.E.2d 216, ¶ 86.

       {¶24} Hunter waived his right to a jury trial.            His jury waiver was not

demonstrably unknowing, involuntary, or unintelligent. And because it preceded jury

selection, it preempted any voir dire examination of prospective jurors for his case.

Thus, the trial record does not demonstrate actual juror bias.




                                             8
                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶25} Nor did the evidence of pretrial publicity offered in support of Hunter’s
postconviction challenge give rise to a presumption of juror bias. That publicity, while

not insubstantial, could not fairly be said to have been so pervasive as to preclude any

possibility of empanelling an impartial jury.

       {¶26} In the absence of evidence demonstrating actual juror bias or giving rise
to a presumption of bias, Hunter’s 9th claim, challenging counsel’s effectiveness in

failing to seek a change of venue, was properly denied.

       {¶27} Investigation, preparation, and presentation—medical evidence. In
claims 2 through 4, Hunter challenged his trial counsel’s effectiveness in countering the

medical evidence presented by the state during the guilt phase of his capital trial.

Hunter complained that counsel had engaged in “ill-informed and argumentative cross-

examination” that had allowed the state’s medical experts “to repeatedly state their

damaging conclusions” concerning the cause and manner of Trustin’s death.              He

further contended that counsel, instead of relying exclusively on his own medical

knowledge and his cross-examination of the state’s medical experts, should have

retained the services of a forensic pathologist to provide expert assistance in preparing

and presenting at trial his defense that Trustin had died from injuries sustained in a fall

down the basement steps.

       {¶28} In support of his claims, Hunter offered his own affidavit, in which he
averred that counsel had cited “his own medical knowledge,” along with the fact that he

had been admitted to medical school, to explain his decision to rely on cross-

examination of the state’s medical experts in lieu of calling a defense expert. Hunter

also offered outside evidence in the form of an opinion letter from forensic pathologist

Werner U. Spitz, M.D., and copies of the materials used by Dr. Spitz in arriving at his

opinion.

       {¶29} Dr. Spitz disagreed with the state’s experts concerning the cause and
manner of Trustin’s death. The emergency-room physician and the deputy coroner


                                            9
                     OHIO FIRST DISTRICT COURT OF APPEALS



testified at trial that Trustin’s injuries were not consistent with a fall down the stairs.

The deputy coroner determined that the cause of death had been a “diffuse brain injury

due to blunt impact/shaking injuries to the head,” and that “[t]he manner of death [had

been] homicide.” Hunter, 131 Ohio St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, at ¶ 29

and 122 (quoting the deputy coroner’s trial testimony). Dr. Spitz’s review of the

autopsy report, medical records, and trial testimony of the state’s experts led him to the

contrary opinion, that “the death of [Trustin was] consistent with head injuries

sustained in a fall down a flight of stairs onto a concrete floor.”

       {¶30} The deputy coroner testified at length concerning the bases of her
opinion. She testified that her postmortem examination had disclosed two separate

areas of broad impact on Trustin’s head and a serious neck injury, where the cartilage

had been pulled loose from the thoracic vertebra. From the two distinct impact sites,

the deputy coroner concluded that Trustin had been struck in the head with

“something” or that “his body had been slammed against something.” Id. at ¶ 26, 27,

and 122.

       {¶31} The postmortem examination also revealed “a 1.9 centimeter laceration
of Trustin’s anus[,] a hemorrhage along the rectum’s lining[,] a hemorrhage going into

both sides of the pelvis[, and] three areas of perforation of the rectal mucosa.” The

deputy coroner found those perforations to be “similar to what you could produce with

something like a pencil, jammed with a pencil or something sharp like that, or could

even be from an angled insertion of something.” Id. at ¶ 26-28 (quoting the deputy

coroner’s trial testimony).

       {¶32} Concerning the defense theory that Trustin’s death had been accidental,
the deputy coroner stated that she could “only * * * conceive of this being partially

caused by a fall down 11 carpeted steps * * * if he had fallen off the side of the stairs and

landed on his head twice.” But, she insisted, a fall down the stairs “still wouldn’t have

explained the anal injuries.” Id. at ¶ 29 (quoting the deputy coroner’s trial testimony).


                                             10
                     OHIO FIRST DISTRICT COURT OF APPEALS



       {¶33} Dr. Spitz found, to the contrary, “no injuries on the body surface that
[were] not explainable by a fall down the steps, including the anal laceration and

associated hemorrhage with the soft tissues in the pelves.” The autopsy photographs,

he insisted, showed “two, parallel, horizontal, sharply demarcated, impacts to the head,

which by their shape and pattern are consistent with bruises from impacts on the edges

of the steps.” He found that the “anal orifice show[ed] no evidence of abrasion, bruising

or the typical tearing as would have occurred from adult penile penetration.” And he

concluded that, because the “skeletal survey postmortem, after organ donation,”

showed no evidence of injury to the cervical spine, “the separation of the lower cervical

spine * * * [was] an autopsy artifact.”

       {¶34} The Sixth Amendment to the United States Constitution imposes upon
criminal defense counsel a duty to investigate the defendant’s case. Strickland, 466

U.S. at 690-691, 104 S.Ct. 2052, 80 L.Ed.2d 67. To discharge that duty, counsel must

either conduct a “reasonable investigation[]” or “make a reasonable decision that makes

[a] particular investigation[] unnecessary.” Id. at 691. Accord State v. Johnson, 24

Ohio St.3d 87, 89, 494 N.E.2d 1061 (1986).

       {¶35} In Hunter’s direct appeal, the supreme court rejected his challenge to his
counsel’s effectiveness in relying exclusively on cross-examination to undermine the

testimony of the state’s medical experts. The court noted that counsel’s decision to rely

on cross-examination of the state’s experts in lieu of presenting defense experts did not,

in and of itself, constitute ineffective assistance of counsel. Hunter, 131 Ohio St.3d 67,

2011-Ohio-6524, 960 N.E.2d 955, at ¶ 66 (citing State v. Nicholas, 66 Ohio St.3d 431,

436, 613 N.E.2d 225 [1993], and State v. Thompson, 33 Ohio St.3d 1, 10-11, 514 N.E.2d

407 [1987]). And the court found that, in the absence of evidence in the trial record of

expert medical testimony that could and should have been presented, counsel’s

decision to rely exclusively on cross-examination “appear[ed] to have been a legitimate




                                           11
                     OHIO FIRST DISTRICT COURT OF APPEALS



‘tactical decision.’ ” Id. (quoting State v. Foust, 105 Ohio St.3d 137, 2004-Ohio-7006,

823 N.E.2d 836, ¶ 97).

       {¶36} The supreme court also rejected Hunter’s challenges in his direct appeal
to the sufficiency of the evidence and to the balance struck by the three-judge panel in

weighing the evidence presented at trial. In the process, the court determined that the

testimony of the state’s witnesses had been “neither inherently unreliable nor

unbelievable,” and that Hunter’s was not the “exceptional case in which the evidence

weigh[ed] heavily against the conviction.”         Id. at ¶ 128-129 (quoting State v.

Thompkins, 78 Ohio St.3d 380, 387, 678 N.E.2d 541 [1997], quoting State v. Martin,

20 Ohio App.3d 172, 175, 485 N.E.2d 717 [1983]).

       {¶37} The outside evidence offered in support of claims 2 through 4 would not
have compelled a contrary assessment. Neither counsel’s investigation of Hunter’s

defense nor his cross-examination of the state’s medical experts was demonstrably

ineffective. And Dr. Spitz’s opinion concerning the cause and manner of Trustin’s death

could not be said to have cast the state’s experts’ opinions in such a different light as to

undermine any confidence in the outcome of Hunter’s trial. Thus, Hunter failed to

demonstrate a reasonable probability that, but for counsel’s alleged deficiencies in

investigating and presenting the medical evidence, the results of his trial would have

been different. Therefore, the common pleas court properly denied the claims.

       {¶38} Investigation,      preparation,     and    presentation—alternative-killer

defense.    In claims 5 through 7, Hunter assailed his counsel’s effectiveness in

investigating and in presenting at trial evidence that others might have caused Trustin’s

death. He asserted that counsel had failed to rebut the state’s evidence pointing to him

as the perpetrator of physical abuse that had twice sent Trustin to the hospital in 2004,

and that counsel had failed to impeach with prior inconsistent statements the

testimony of state’s witnesses Amber White and Wilma Forte.




                                            12
                      OHIO FIRST DISTRICT COURT OF APPEALS



        {¶39} The state presented at trial evidence that Trustin had previously been
injured while in Hunter’s care. An emergency-room visit in January 2004 revealed a

broken tibia; a visit in June 2004 disclosed old and new fractures on Trustin’s hand and

foot, swollen lips, ear injuries, hair loss, bruises on his head, and swelling and abrasions

on his penis. In each instance, Hunter claimed that the injuries had been caused by a

fall while carrying Trustin down steps.

        {¶40} After the June 2004 incident, Trustin was removed from his mother’s
custody and placed in the custody of Amber White. White and her daughter Wilma

Forte testified at trial that, beginning in 2003, Trustin had evinced a fear of Hunter in

the form of crying, shaking, and vomiting. Forte further testified that, two days before

his death, Trustin had told her that he feared Hunter, and that Hunter had hurt him.

        {¶41} At trial, the three-judge panel rejected defense counsel’s challenge under
Evid.R. 404(B) to the admission of evidence concerning the January and June 2004

incidents. On appeal, the supreme court upheld the panel’s ruling, finding these “other

acts” to be so “eerily similar” to the charged offenses that they were relevant to the

truthfulness of Hunter’s claim that Trustin had died as a consequence of an accidental

fall. Id. at ¶ 114.

        {¶42} In support of his postconviction claims, Hunter offered outside evidence
in the form of agency reports, interviews, and assessments.          He argued that this

evidence, had it been presented at trial, would have suggested that some of Trustin’s

2004 injuries had been caused by an allergic reaction, and that Trustin’s mother, who

suffered from mental-health problems, “violent tendencies,” and “severe parenting

skills deficiencies,” had been the person who in 2004 had injured Trustin.             The

evidence would also, he insisted, have provided proof that White had lied when, on

cross-examination by defense counsel, she denied that her brother, who sometimes

stayed with her, had been previously charged with rape, and that Forte had lied when,




                                            13
                    OHIO FIRST DISTRICT COURT OF APPEALS



on cross-examination, she stated that her concern for Trustin’s safety had only

extended to situations involving Hunter.

       {¶43} In addition to the evidence provided by White and Forte and the
evidence concerning the 2004 incidents, the state adduced at trial substantial evidence

implicating Hunter in Trustin’s death. And again, Hunter’s was not the “exceptional

case in which the evidence weigh[ed] heavily against the conviction.” Id. at ¶ 128-129.

Because counsel’s alleged deficiencies concerning these matters could not be said to

have been outcome determinative, the common pleas court properly denied claims 5

through 7.

       {¶44} Investigation, preparation, and presentation—mitigation evidence.
Hunter directed claims 12 through 17 against the adequacy and effectiveness of

counsel’s preparation for and presentation of his case in mitigation. These claims were

also properly denied without an evidentiary hearing.

       {¶45} Hunter argued that his counsel had been ineffective in failing to
reasonably investigate, or to retain mitigation, psychological, and substance-abuse

experts to aid in preparing and presenting, mitigating evidence concerning Hunter’s

family history, background, and character. In support of these claims, he offered

outside evidence in the form of documents showing his criminal record and history of

substance abuse and the affidavits of family members, a clinical psychologist, and

several mitigation specialists.   This evidence, Hunter insisted, demonstrated his

counsel’s “fail[ure] to present a complete picture of who Lamont Hunter was.”

       {¶46} In Hunter’s direct appeal, the supreme court rejected his challenges to
trial counsel’s effectiveness in presenting his case in mitigation. The court noted that

counsel initially appointed to represent Hunter had employed a mitigation specialist

and a psychiatrist, and that retained counsel had also requested a mitigation specialist,

had secured two continuances to prepare the case in mitigation, and had presented

“detailed” and “extensive” mitigating evidence. Id. at ¶ 65 and 70. The court found


                                           14
                    OHIO FIRST DISTRICT COURT OF APPEALS



nothing in the trial record to show that counsel’s mitigation investigation had been

inadequate, or that counsel had been ineffective in failing to present the testimony of a

psychologist or mitigation specialist.

       {¶47} In evaluating Hunter’s death sentence, the court noted that counsel had
presented in mitigation testimony by five family members and two other witnesses

concerning Hunter’s alcohol and drug abuse and dependence, his father’s alcoholism,

his family’s history of domestic violence, and his criminal record, which included

convictions for drug trafficking and domestic violence. Of the statutory mitigating

factors, the court found only the R.C. 2929.04(B)(7) “catchall” provision applicable.

The court gave “some weight” to the evidence of Hunter’s love and care for his children

and his family’s love and support. But the court gave “little weight” to the evidence

concerning Hunter’s history of substance abuse, in the absence of some evidence of a

connection between his substance abuse and Trustin’s death. And the court gave no

weight to Hunter’s expressions of remorse and sorrow, because Hunter had continued

to deny any role in Trustin’s death.

       {¶48} Weighing that evidence, the court found that the aggravating factors
clearly outweighed the mitigating factors beyond a reasonable doubt. The outside

evidence submitted by Hunter in support of claims 12 through 17 would not have

compelled a contrary conclusion.         Thus, because Hunter failed to demonstrate

substantive grounds for relief, the common pleas court properly denied the claims.

       {¶49} Conflict of interest.        In his 10th postconviction claim, Hunter

contended that he had been denied his constitutional right to the assistance of counsel

free from conflicts of interest. He argued, and offered outside evidence demonstrating,

that counsel had represented him while laboring under a federal investigation that,

soon after Hunter’s conviction, had culminated in counsel’s conviction and

incarceration and the suspension of his license to practice law. Hunter asserted that

counsel’s representation of him while under investigation had “created a conflict of


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                    OHIO FIRST DISTRICT COURT OF APPEALS



interest” that had materially affected counsel’s performance at trial, as evidenced by the

instances of counsel’s ineffectiveness alleged in Hunter’s other postconviction claims.

       {¶50} The Sixth Amendment right to the effective assistance of counsel secures
to a criminal defendant both the right to competent representation and the right to

representation that is free from conflicts of interest. Wood v. Georgia, 450 U.S. 261,

271, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981); Glasser v. United States, 315 U.S. 60, 70, 62

S.Ct. 457, 86 L.Ed. 680 (1942). To prevail on a claim that he was denied his right to

conflict-free counsel, a defendant must demonstrate “an actual conflict of interest.”

Wood at 273. An “actual conflict of interest,” for purposes of the Sixth Amendment, is

“a conflict of interest that adversely affects counsel’s performance.” Mickens v. Taylor,

535 U.S. 162, 172, 122 S.Ct. 1237, 152 L.Ed.2d 291 (2002), fn. 5. Thus, to prove an

“actual conflict of interest,” the defendant must show that his counsel “actively

represented conflicting interests,” and that the conflict “actually affected the adequacy

of his representation.” Id. (quoting Cuyler v. Sullivan, 446 U.S. 335, 349-350, 100 S.Ct.

1708, 64 L.Ed.2d 333 [1980]).

       {¶51} In Hunter’s direct appeal, the supreme court rejected his contention that
his counsel had been ineffective because of his pending federal charges. The court

noted that “[p]ending criminal charges against an attorney are, without more,

insufficient to support a claim of ineffective assistance of counsel.” Hunter, 131 Ohio

St.3d 67, 2011-Ohio-6524, 960 N.E.2d 955, at ¶ 44-45 (quoting State v. Williams, 52

Ohio App.3d 19, 556 N.E.2d 221 [1989], paragraph two of the syllabus). And the court

held that Hunter had failed to satisfy the Strickland standard of outcome-determinative

ineffectiveness, because the trial record was devoid of evidence concerning the pending

charges or supporting Hunter’s claims that counsel’s need for cash had prompted him

to undertake Hunter’s representation and that counsel’s own legal issues had affected

the quality of that representation.




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       {¶52} While Hunter had based his challenge on direct appeal upon his Sixth
Amendment right to competent counsel, he predicated his 10th postconviction claim

upon the guarantee of conflict-free counsel. A “conflict of interest” arises when regard

for one duty leads to disregard of another duty. Thus, the right to conflict-free counsel

is implicated when an attorney represents multiple clients with competing interests.

State v. Manross, 40 Ohio St.3d 180, 182, 532 N.E.2d 735 (1988) (holding that a

conflict of interest arises when counsel incurs a duty on behalf of one client “to contend

for that which [his] duty to another client requires him to oppose”).

       {¶53} The right to conflict-free counsel may also be implicated when counsel’s
representation of the defendant is adversely affected by counsel’s personal or financial

interests. Mickens at 174; see, e.g., State v. Bryant, 6th Dist. No. L-84-249 (Oct. 18,

1985) (finding a conflict of interest when retained counsel was indicted for drug

trafficking for accepting as his fee cocaine alleged to have been stolen by defendant

from his murder victims). But, again, the right protects against “ ‘an actual conflict of

interest’ * * * as opposed to a mere theoretical division of loyalties.” Mickens, 535 U.S.

at 172, 122 S.Ct. 1237, 152 L.Ed.2d 291 (quoting Wood, 450 U.S. at 273, 101 S.Ct. 1097,

67 L.Ed. 2d 220). Thus, Hunter was required to demonstrate not only that his counsel

had actively represented conflicting interests, but also that the conflict had actually

affected the adequacy of counsel’s representation. See id. (quoting Cuyler, 446 U.S. at

349-350, 100 S.Ct. 1708, 64 L.Ed.2d 333).         Nothing in the evidentiary material

submitted by Hunter in support of his claim could fairly be said to demonstrate a

causative link between the alleged conflict of interest and an inadequacy in his counsel’s

representation. Therefore, the common pleas court properly denied his 10th claim.

                                     C. Actual Innocence

       {¶54} In his 1st claim, Hunter contended that outside evidence offered in
support of his other claims demonstrated his innocence of the charges. The common

pleas court properly denied this claim of actual innocence, because the claim did not


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demonstrate a constitutional violation in the proceedings leading to Hunter’s

convictions. See State v. Campbell, 1st Dist. No. C-950746, 1996 Ohio App. LEXIS 5114

(Nov. 20, 1996). Accord State v. Byrd, 145 Ohio App.3d 318, 331, 762 N.E.2d 1043 (1st

Dist. 2001).

                          D. Constitutionality of Death Sentence

       {¶55} In claims 18 through 22, Hunter advanced various challenges to the
constitutionality of his death sentence. These claims were also properly denied without

a hearing.

       {¶56} Proportionality. In his 19th claim, Hunter contended that his death
sentence violated the Due Process and Equal Protection Clauses of the state and federal

constitutions because the sentence was disproportionately more severe than sentences

imposed on similarly-situated capital defendants in Hamilton County. As proof of the

county’s “arbitrary and capricious” application of the death-penalty law, he provided a

list of cases since 1998 in which the death penalty had been sought but had not been

imposed.

       {¶57} In Hunter’s direct appeal, the Ohio Supreme Court conducted the
proportionality review mandated by R.C. 2929.05 and concluded that the death penalty

imposed in his case was “appropriate and proportionate when compared to death

sentences imposed for other child-murders * * * [and] when compared with death

sentences approved for other rape-murders.” Hunter, 131 Ohio St.3d 67, 2011-Ohio-

6524, 960 N.E.2d 955, at ¶ 206-207. Proportionality review is not constitutionally

mandated. Pulley v. Harris, 465 U.S. 37, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984); State v.

Jenkins, 15 Ohio St.3d 164, 175, 473 N.E.2d 264 (1984). Thus, the scope of the

proportionality review conducted under R.C. 2929.05 is for the courts to determine.

State v. Steffen, 31 Ohio St.3d 111, 123, 509 N.E.2d 383 (1987). The Ohio Supreme

Court has determined that a reviewing court “need [not] consider any case where the




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death penalty was sought but not obtained.” Steffen at 124. Therefore, the court

properly denied Hunter’s 19th claim.

       {¶58} Prosecutorial discretion. In his 20th claim, Hunter also invoked the
state and federal constitutional due-process and equal-protection guarantees, along

with the Eighth Amendment’s protection against cruel and unusual punishment, to

argue that the “uncontrolled discretion” afforded the Hamilton County Prosecuting

Attorney in seeking the death penalty permits the death penalty to be imposed

arbitrarily, capriciously, and discriminatorily.

       {¶59} In support of these claims, Hunter offered a statistical “breakdown by
disposition” of capital cases prosecuted in Hamilton County that, he insisted,

“demonstrates the erratic method of charging and prosecuting [the county’s] capital

cases.” But both the United States Supreme Court and the Ohio Supreme Court have

rejected constitutional challenges to the death penalty predicated on the mere fact of

prosecutorial discretion, Gregg v. Georgia, 428 U.S. 153, 199-200, 96 S.Ct. 2909, 49

L.Ed.2d 859 (1976); Jenkins at 169-170, or based upon statistics that purport to show a

racial disparity in the imposition of the death penalty. McCleskey v. Kemp, 481 U.S.

279, 297, 107 S.Ct. 1756, 95 L.Ed.2d 262 (1987); Steffen at 124. Because Hunter failed

to support his claim with outside evidence demonstrating racial discrimination in the

imposition of the death penalty in his case, the common pleas court properly denied his

20th claim. See Steffen at 125.

       {¶60} Ineffective counsel. In his 18th claim, Hunter asserted that his counsel
had been ineffective in failing to offer at trial evidence supporting the argument that the

death penalty is applied in an unconstitutionally arbitrary and discriminatory manner.

This claim depended upon the success of, and thus logically fell with, Hunter’s 19th and

20th claims. Therefore, the common pleas court properly denied Hunter’s 18th claim.

       {¶61} Reporting for proportionality review. In his 21st claim, Hunter
contended that his due-process and equal-protection rights were violated by


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                     OHIO FIRST DISTRICT COURT OF APPEALS



inadequacies in the reporting system mandated by R.C. 2929.021 and 2929.03 for

appellate proportionality review, as that system is administered by Hamilton County.

The common pleas court properly denied this claim, because Hunter failed to

demonstrate that the alleged inadequacies in the county’s reporting system prejudiced

the proportionality review conducted by the supreme court in his case.

       {¶62} Lethal injection. And the court properly denied Hunter’s challenge in
his 22nd claim to the constitutionality of the state’s use of lethal injection as a means of

execution. The Ohio Supreme Court has determined that execution by lethal injection

does not run afoul of the Eighth Amendment’s proscription against cruel and unusual

punishment. State v. Carter, 89 Ohio St.3d 593, 608, 2000-Ohio-172, 734 N.E.2d 345.

                                      E. Cumulative Error

       {¶63} In his 23rd and final postconviction claim, Hunter contended that the
cumulative effect of the constitutional deprivations alleged in his petition’s other claims

was to deny him a fair trial. A judgment of conviction may be reversed if the cumulative

effect of errors deemed separately harmless is to deny the defendant a fair trial. State v.

DeMarco, 31 Ohio St.3d 191, 509 N.E.2d 1256 (1987), paragraph two of the syllabus.

But by its terms, the doctrine of “cumulative error” will not provide a basis for reversal

in the absence of multiple errors. State v. Madrigal, 87 Ohio St.3d 378, 398, 721

N.E.2d 52 (2000). Because Hunter failed to support his postconviction petition with

evidence demonstrating multiple constitutional deprivations, the common pleas court

properly denied the cumulative-error challenge advanced in his 23rd claim. See State

v. Van Hook, 1st Dist. No. C-910505, 1992 Ohio App. LEXIS 5350 (Oct. 21, 1992).

                                          III. Discovery

       {¶64} In his third and final assignment of error, Hunter contends that he was
denied due process by the common pleas court’s failure to afford him the “essential

mechanisms of off-record fact development,” that is, discovery and the funds to retain

experts to aid him in developing his postconviction claims. This challenge is untenable.


                                            20
                    OHIO FIRST DISTRICT COURT OF APPEALS



       {¶65} The postconviction statutes do not contemplate discovery in the initial
stages of a postconviction proceeding. State ex rel. Love v. Cuyahoga Cty. Prosecutor’s

Office, 87 Ohio St.3d 158, 159, 718 N.E.2d 426 (1999); State v. Zuern, 1st Dist. Nos. C-

900481 and C-910229, 1991 Ohio App. LEXIS 5733 (Dec. 4, 1991). And the failure of

the statutes to so provide does not contravene any state or federal constitutional right.

State v. Jones, 1st Dist. No. C-990813, 2000 Ohio App. LEXIS 6197 (Dec. 29, 2000).

Thus, a postconviction petitioner is entitled to discovery to develop his claims, and to

experts to aid in that discovery, only if the petition and its supporting evidentiary

material demonstrate substantive grounds for relief. Issa, 1st Dist. No. C-000793, 2001

Ohio App. LEXIS 5762.

       {¶66} Because Hunter’s postconviction claims were properly denied without an
evidentiary hearing, he was not entitled to discovery or the funding for experts to aid in

discovery. Accordingly, we overrule the third assignment of error.

                                         IV. We Affirm

       {¶67} Finding no merit to any of the challenges advanced on appeal, we affirm
the judgment of the common pleas court.

                                                                     Judgment affirmed.

HILDEBRANDT, P.J., SUNDERMANN and HENDON, JJ.



Please note:

       The court has recorded its own entry on the date of the release of this opinion.




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