       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206
    ELECTRONIC CITATION: 2000 FED App. 0064P (6th Cir.)
                File Name: 00a0064p.06


UNITED STATES COURT OF APPEALS
              FOR THE SIXTH CIRCUIT
                _________________


                             ;
                              
 RONALD DEAN COMBS,
                              
        Petitioner-Appellant,
                              
                              
                                       No. 97-4369
          v.
                              
                               >
 RALPH COYLE,                 
        Respondent-Appellee. 
                             1

      Appeal from the United States District Court
     for the Southern District of Ohio at Cincinnati.
   No. 95-00733—Sandra S. Beckwith, District Judge.
              Argued: November 2, 1999
          Decided and Filed: February 23, 2000
 Before: NORRIS, DAUGHTREY, and MOORE, Circuit
                    Judges.
                  _________________
                       COUNSEL
ARGUED: Richard A. Chesley, JONES, DAY, REAVIS &
POGUE, Chicago, Illinois, for Appellant. Stuart A. Cole,
OFFICE OF THE ATTORNEY GENERAL OF OHIO,
Columbus, Ohio, for Appellee. ON BRIEF: Richard A.
Chesley, JONES, DAY, REAVIS & POGUE, Chicago,
Illinois, Jenny L. Klitch, JONES, DAY, REAVIS & POGUE,

                            1
2     Combs v. Coyle                               No. 97-4369

Columbus, Ohio, Linda E. Prucha, PUBLIC DEFENDER’S
OFFICE, OHIO PUBLIC DEFENDER COMMISSION,
Columbus, Ohio, for Appellant. Stuart A. Cole, Jonathan R.
Fulkerson, OFFICE OF THE ATTORNEY GENERAL OF
OHIO, Columbus, Ohio, for Appellee.
  MOORE, J., delivered the opinion of the court, in which
DAUGHTREY, J., joined. NORRIS, J. (p. 42), delivered a
separate opinion concurring in part and dissenting in part and
joined in the judgment.
                    _________________
                        OPINION
                    _________________
   KAREN NELSON MOORE, Circuit Judge. Petitioner-
appellant Ronald Dean Combs was convicted by an Ohio jury
of two counts of aggravated murder as well as a specification
of an aggravating circumstance as to each count, and he was
sentenced to death. Combs now appeals the district court’s
denial of his petition for a writ of habeas corpus. His brief
sets forth twenty-nine claims, including various claims of
ineffective assistance of counsel, prosecutorial misconduct,
trial court error, and challenges to the constitutionality of his
death sentence. For reasons that will be explained below, we
conclude that Combs’s trial counsel rendered ineffective
assistance so egregious as to make us doubt whether Combs’s
trial produced a just result. Accordingly, we REVERSE the
district court’s judgment and REMAND to the district court
for issuance of a writ of habeas corpus conditioned upon the
State of Ohio granting Combs a new trial within a reasonable
period of time.
                     I. BACKGROUND
  On July 15, 1987, Ronald Dean Combs shot and killed
Peggy Schoonover and her mother, Joan Schoonover. Peggy
Schoonover and Combs had been involved in a relationship
and had a child together, a son named Joseph. The shootings
took place in the Holiday Park Tower parking lot in
42    Combs v. Coyle                               No. 97-4369      No. 97-4369                             Combs v. Coyle       3

 ______________________________________________                     downtown Cincinnati, and an off-duty police officer, Deputy
                                                                    Sheriff James Neil, witnessed the shootings. Neil ordered
  CONCURRING IN PART, DISSENTING IN PART                            Combs to freeze, but when Combs made an aggressive move
 ______________________________________________                     and refused to drop his shotgun, Neil fired six gunshots at
                                                                    Combs. Combs was taken to the hospital and underwent
  ALAN E. NORRIS, Circuit Judge, concurring in part and             extensive treatment for his gunshot wounds. His right arm
dissenting in part.                                                 was amputated, and his left arm was left partly paralyzed.
   I concur with the majority’s decision in Part II.B.3 and            Combs was charged with two counts of aggravated murder,
agree that a writ of habeas corpus should be issued on this         which is defined as “purposely, and with prior calculation and
ground. Because petitioner did not argue that introduction of       design, caus[ing] the death of another.” OHIO REV. CODE
his “talk to my lawyer” statement violated his right to remain      ANN. § 2903.01(A) (Banks-Baldwin 1997). Each count
silent, I respectfully dissent from Part II.B.2 of the majority’s   contained a specification of an aggravating circumstance,
opinion.                                                            namely that the offense “was part of a course of conduct
                                                                    involving the purposeful killing of or attempt to kill two or
                                                                    more persons.” Joint Appendix (hereinafter “J.A.”) at 9
                                                                    (Indictment); OHIO REV. CODE ANN. § 2929.04(A)(5) (Banks-
                                                                    Baldwin 1997). Under Ohio law, a defendant becomes
                                                                    eligible for the death penalty if he is convicted of or pleads
                                                                    guilty to aggravated murder as well as at least one of the
                                                                    aggravating circumstances set forth in § 2929.04. See OHIO
                                                                    REV. CODE ANN. § 2929.03(C)(2) (Banks-Baldwin 1997).
                                                                      At trial, Combs did not contest that he fired the two shots
                                                                    that killed Peggy and Joan Schoonover. Instead, his defense
                                                                    was that he was too intoxicated from alcohol and drugs to
                                                                    form the requisite intent to kill the women or to have
                                                                    committed the killings with prior calculation and design. To
                                                                    support this theory, Combs presented the testimony of several
                                                                    witnesses who had seen him ingesting substantial quantities
                                                                    of alcohol and drugs in the days prior to and on the day of the
                                                                    shootings. Defense witness Dr. Roger Fisher, a clinical
                                                                    psychologist, also testified that, in his expert opinion, Combs
                                                                    was under the influence of drugs and alcohol at the time of
                                                                    the shootings. However, on cross examination, Fisher
                                                                    explained his belief that Combs, while intoxicated, was
                                                                    nevertheless acting with intent and purpose.
                                                                      On February 17, 1988, a jury found Combs guilty of both
                                                                    counts of aggravated murder as well as the specification of an
4    Combs v. Coyle                              No. 97-4369      No. 97-4369                             Combs v. Coyle      41

aggravating circumstance as to each count. Following a            Id. (citation omitted). Although the Ohio Supreme Court
sentencing hearing conducted on February 22, 1988, the jury       found that these comments did not warrant reversal, the State
returned a verdict imposing a sentence of death. Pursuant to      should avoid such speculation on retrial.
Ohio Revised Code § 2929.03(D)(3), the trial court
independently reviewed all the evidence and, upon concluding                          III. CONCLUSION
that the aggravating circumstance outweighed the mitigating
factors beyond a reasonable doubt, it adopted the jury’s             Based on the preceding analysis, we conclude that Combs’s
recommended sentence of death.                                    trial counsel rendered constitutionally ineffective assistance
                                                                  at the culpability phase of Combs’s trial. We therefore
  Combs then unsuccessfully pursued direct appeals and state      REVERSE the district court’s judgment and REMAND the
post-conviction relief. Combs’s conviction was affirmed by        case to the district court with instructions to issue a writ of
the state court of appeals on September 19, 1990, see Ohio v.     habeas corpus unless the State of Ohio retries Combs within
Combs, No. C-880156, 1990 WL 135000, at *9 (Ohio Ct.              a reasonable period of time.
App. Sept. 19, 1990) (unpublished opinion), and by the Ohio
Supreme Court on December 18, 1991, see Ohio v. Combs,
581 N.E.2d 1071, 1084 (Ohio 1991), reh’g denied, 583
N.E.2d 974 (Ohio), cert. denied, 504 U.S. 977 (1992).
Combs filed a petition for post-conviction relief pursuant to
Ohio Revised Code § 2953.21 raising fifty-nine claims for
relief, which was denied by the court of common pleas on
May 20, 1993. J.A. at 420 (Ct. C.P. Denial of Pet. to Vacate).
The court of appeals affirmed the denial of relief, see Ohio v.
Combs, 652 N.E.2d 205, 218 (Ohio Ct. App. 1994), and the
Ohio Supreme Court declined jurisdiction over Combs’s
discretionary appeal, see Ohio v. Combs, 644 N.E.2d 1028
(Ohio), recons. denied, 646 N.E.2d 469 (Ohio 1995). In June
of 1993, Combs filed an application for delayed
reconsideration in the court of appeals; this application was
denied on February 22, 1994. J.A. at 363-64 (Entry Denying
App. for Delayed Recons.). The Ohio Supreme Court
affirmed the denial without opinion. See Ohio v. Combs, 634
N.E.2d 1027 (Ohio), recons. denied, 638 N.E.2d 86 (Ohio
1994), cert. denied, 513 U.S. 1167 (1995).
  After exhausting all state court remedies, Combs filed a
petition for a writ of habeas corpus in the United States
District Court for the Southern District of Ohio pursuant to 28
U.S.C. § 2254. Combs’s petition asserted fifty-three claims
for relief. After finding all of these claims to be either
procedurally barred or without merit, the district court denied
40    Combs v. Coyle                             No. 97-4369    No. 97-4369                              Combs v. Coyle        5

  childhood? Was she thinking about her daughter take me        relief on October 23, 1997. J.A. at 231 (D. Ct. Op.). The
  but spare Peggy? That’s the aggravating circumstance,         district court issued a certificate of probable cause on
  what she went through. Or maybe she started to pray, we       December 17, 1997. We have jurisdiction over Combs’s
  don’t know. He won’t tell us.                                 timely appeal of the district court’s judgment pursuant to 28
                                                                U.S.C. § 2253.
     ....
                                                                  Combs’s appeal sets forth twenty-nine claims for relief;
     . . . What did she [Peggy] think when this now hot steal   these claims fall under the headings of ineffective assistance
  [sic] pressed against the back of her head, she knew she      of trial counsel at both the culpability and sentencing phases,
  too wasn’t going to be given any mercy. What went             ineffective assistance of appellate counsel, prosecutorial
  through her mind, what was she thinking? Was she              misconduct, trial court error, and imposition of an
  thinking of little Joey, who’s going to take care of him,     unconstitutional sentence of death. Because our resolution of
  grandma is gone, I’m going to be gone, who’s going to         Combs’s ineffective assistance of trial counsel claim renders
  raise my little boy. And then came the pull of that           unnecessary a decision on the others, we will confine our
  second trigger, and she’s gone. That’s the aggravating        opinion to an analysis of the ineffectiveness claim.
  circumstance, that’s what you put in your one hand and        Additionally, we will briefly discuss trial errors that have
  even if you do find some mitigation and all that that the     been identified by the Ohio state courts so as to ensure that
  defendant told you, weigh that.                               these errors are avoided on Combs’s retrial.
     ....                                                                              II. ANALYSIS
    . . . What weighs more, these two totally good lives or     A. Procedural Default
  the defendant’s life in the fast lane?
                                                                   It is well established that “[i]n all cases in which a state
R. at 1404-06; J.A. at 2783-85.                                 prisoner has defaulted his federal claims in state court
                                                                pursuant to an independent and adequate state procedural rule,
  The Ohio Supreme Court on direct review of Combs’s case       federal habeas review of the claims is barred unless the
concluded that these prosecutorial comments were erroneous      prisoner can demonstrate cause for the default and actual
as a matter of state law. See Combs, 581 N.E.2d at 1077. The    prejudice as a result of the alleged violation of federal law, or
court explained:                                                demonstrate that failure to consider the claims will result in
                                                                a fundamental miscarriage of justice.” Coleman v. Thompson,
    After reading his entire argument, we conclude that the     501 U.S. 722, 750 (1991). In Maupin v. Smith, 785 F.2d 135
  prosecutor did err. The prosecutor did improperly             (6th Cir. 1986), we articulated an analysis that must be
  suggest that how the victims were killed and the              followed when a state argues that a habeas claim is defaulted
  suffering and mental anguish the victims endured was an       because of a petitioner’s failure to observe a state procedural
  aggravating circumstance.         Improperly injecting        rule. “First, the court must determine that there is a state
  nonstatutory aggravating circumstances is error. By           procedural rule that is applicable to the petitioner’s claim and
  continually referring to what the victims were thinking,      that the petitioner failed to comply with the rule.” Id. at 138.
  the prosecutor engaged in gross speculation.                  “Second, the court must decide whether the state courts
                                                                actually enforced the state procedural sanction.” Id. “Third,
                                                                the court must decide whether the state procedural forfeiture
6     Combs v. Coyle                               No. 97-4369      No. 97-4369                            Combs v. Coyle     39

is an ‘adequate and independent’ state ground on which the          (1998); Ohio v. Garner, 656 N.E.2d 623, 631 (Ohio 1995),
state can rely to foreclose review of a federal constitutional      cert. denied, 517 U.S. 1147 (1996); Ohio v. Grant, 620
claim.” Id. As we have previously stated: “For purposes of          N.E.2d 50, 68 (Ohio 1993), cert. denied, 513 U.S. 836 (1994).
federal review in habeas cases, we may consider as an               On direct review of Combs’s conviction, the Ohio Supreme
adequate and independent state procedural rule only a state         Court cited DePew and explained that the reference to
procedural rule that was ‘firmly established and regularly          statutory mitigating factors not raised by the evidence was
followed by the time as of which it [was] to be applied’ . . . .”   erroneous. See Combs, 581 N.E.2d at 1079. The court found,
Rogers v. Howes, 144 F.3d 990, 992 (6th Cir. 1998) (quoting         however, that the error did not require reversal because
Ford v. Georgia, 498 U.S. 411, 423-24 (1991)) (alteration in        defense counsel induced the error by proposing the improper
original). If we determine that the state procedural ground         instruction. See id.
was adequate and independent so as to bar review, the
petitioner must then demonstrate cause and prejudice or a             2.   Improper Characterization of the Nature and
fundamental miscarriage of justice.                                        Circumstances of the Offense as a Nonstatutory
                                                                           Aggravating Circumstance
  Whether a state court rested its holding on procedural
default so as to bar federal habeas review is a question of law        The Ohio Supreme Court also concluded that the State
that we review de novo. See Couch v. Jabe, 951 F.2d 94, 96          erred by focusing its closing remarks on the victims’ mental
(6th Cir. 1991). In answering this question, we look to “the        anguish prior to death, thereby converting the nature and
last explained state-court judgment.” Id. (quoting Ylst v.          circumstances of the offense into a nonstatutory aggravating
Nunnemaker, 501 U.S. 797, 805 (1991)) (internal quotation           circumstance. Under Ohio law, although prosecutors in the
marks omitted).                                                     penalty phase of a capital case may properly refer to the
                                                                    nature and circumstances of the offense, it is improper to
  Combs has raised six separate claims of ineffective               characterize that evidence as a nonstatutory aggravating
assistance of trial counsel at the culpability phase. Although      circumstance. See, e.g., Ohio v. Gumm, 653 N.E.2d 253, 262-
one of these claims was presented on direct appeal and is           63 (Ohio 1995), cert. denied, 516 U.S. 1177 (1996); Ohio v.
therefore properly preserved, the other claims were first           Landrum, 559 N.E.2d 710, 719 (Ohio 1990), cert. denied, 498
presented in Combs’s state post-conviction petition. The            U.S. 1127 (1991); Ohio v. Davis, 528 N.E.2d 925, 931 (Ohio
State maintains that the state courts’ dismissal of these claims    1988), cert. denied, 488 U.S. 1034 (1989).
under the doctrine of res judicata was proper, and that we
should therefore refuse to review the merits of these                  It is undisputed that the only aggravating circumstance
procedurally defaulted claims. Combs argues that the first          listed in § 2929.04 for which Combs was convicted is that
prong of the Maupin analysis is not satisfied because at the        “the offense at bar was part of a course of conduct involving
time he pursued his direct appeal, no state procedural rule         the purposeful killing of or attempt to kill two or more
mandated that his ineffectiveness claims be asserted on direct      persons by the offender.”          OHIO REV. CODE ANN.
appeal.                                                             § 2929.04(A)(5) (Banks-Baldwin 1997). At the sentencing
                                                                    hearing, however, the State made the following closing
  The Ohio state courts relied on two cases to support the          argument:
decision that res judicata barred consideration of the claims
raised for the first time in Combs’s post-conviction petition:        Can you imagine the terror of that? A gun right to your
Ohio v. Perry, 226 N.E.2d 104 (Ohio 1967), and Ohio v.                head, was she [Joan] thinking of her husband, who was
                                                                      going to take care of him? Was she thinking about her
38   Combs v. Coyle                              No. 97-4369      No. 97-4369                                     Combs v. Coyle           7

  criminality of his conduct or to conform his conduct to         Cole, 443 N.E.2d 169 (Ohio 1982). In Perry, the Ohio
  the requirements of law.                                        Supreme Court held that “[u]nder the doctrine of res judicata,
     Number 4, the youth of the defendant.                        a final judgment of conviction bars a convicted defendant
     Number 5, the defendant’s lack of significant history        who was represented by counsel from raising and litigating in
  of prior criminal convictions and delinquency                   any proceeding except an appeal from that judgment, any
  adjudications.                                                  defense or any claimed lack of due process that was raised or
     Number 6, if the defendant was [a] participant in the        could have been raised by the defendant at the trial, which
  offense but not the principal offender, the degree of the       resulted in that judgment of conviction, or on an appeal from
  defendant’s participation in the offense and the degree of      that judgment.” Perry, 226 N.E.2d at 106 syllabus para. 9. In
  the defendant’s participation in the acts which led to the      Cole, the court recognized that there are exceptions to the
  death of the victim.                                            absolute application of the Perry rule in proceedings for post-
     And number 7, any other factors that are relevant to the     conviction relief when the criminal defendant claims
  issue of whether the defendant should be sentenced to           ineffective assistance of trial counsel. See Cole, 443 N.E.2d
  death.                                                          at 171. The Cole court reasoned, however, that when a
     Keep in mind that all of these specific factors may not      defendant, “upon direct appeal, was represented by new
  be present in this case nor need they all be present before     counsel who was in no way enjoined from asserting the
  you can find that the aggravating circumstance is not           ineffectiveness of appellant’s trial counsel and [when] such
  sufficient beyond a reasonable doubt to outweigh the            question of effective counsel could fairly be determined
  factors in mitigation of the sentence of death. Likewise        without examining evidence outside the record, none of the
  the existence of any of the mitigating factors I have           qualifications engrafted upon the Perry decision is apposite.”
  described to you does not preclude or prevent the               Id. at 171. The Ohio Supreme Court later commented that
  imposition of a sentence of death if you find that the          “Cole recognizes that res judicata does not apply when trial
  aggravating circumstance still does outweigh the                and appellate counsel are the same, due to the lawyer’s
  mitigating factors by proof beyond a reasonable doubt.          inherent conflict of interest.” Ohio v. Lentz, 639 N.E.2d 784,
                                                                  786 (Ohio 1994).1
R. at 1434-36; J.A. at 2804-06.
                                                                    Combs asserts that the Cole rule requiring defendants to
   This instruction was clearly improper under Ohio law. In       raise ineffectiveness claims on direct appeal does not apply to
Ohio v. DePew, 528 N.E.2d 542 (Ohio 1988), cert. denied,          him because he did not have new appellate counsel. At trial,
489 U.S. 1042 (1989), the defendant contended that an             Combs was represented by two attorneys, Timothy A. Hickey
instruction on all mitigating factors, including ones             and Chuck R. Stidham. On direct appeal, Stidham continued
inapplicable to the case at hand, impermissibly focuses the
jury’s attention on the absence of mitigating factors. See id.
                                                                      1
at 557. The court held that “[i]f the defendant chooses to              Lentz held that “[w]hen a criminal defendant is represented by two
refrain from raising some of or all of the factors available to   different attorneys from the same public defender’s office at trial and on
him, those factors not raised may not be referred to or           direct appeal, res judicata bars a claim of ineffective assistance of trial
commented upon by the trial court or the prosecution.” Id.;       counsel raised for the first time in a petition for postconviction relief
                                                                  when such claim could have been made on direct appeal without resort to
see also Ohio v. Bey, 709 N.E.2d 484, 495 (Ohio), cert.           evidence beyond the record, unless the defendant proves that an actual
denied, --- U.S. ---, 120 S. Ct. 587 (1999); Ohio v. Keith, 684   conflict of interest enjoined appellate counsel from raising ineffective
N.E.2d 47, 65 (Ohio 1997), cert. denied, 523 U.S. 1063            assistance of trial counsel on direct appeal.” Lentz, 639 N.E.2d at 784
                                                                  syllabus.
8       Combs v. Coyle                                    No. 97-4369        No. 97-4369                             Combs v. Coyle      37

his representation of Combs and was joined by new co-                        C. Trial Errors Identified by the Ohio Supreme Court
counsel, R. Fred Hoefle. Combs argues that the same conflict
of interest that would deter an attorney from alleging his own                 In its review of Combs’s conviction and sentence, the Ohio
ineffectiveness is present when that attorney is simply joined               Supreme Court found that several trial court errors had been
by a new attorney on appeal.                                                 committed, although that court determined that these errors
                                                                             did not warrant reversal. Because Combs will in all
   The State acknowledges that counsel cannot be expected to                 probability be retried for these killings, we will now briefly
raise his own ineffectiveness on appeal, but argues that res                 discuss the errors identified by the state court so that these
judicata was properly applied to Combs’s situation. First, the               errors will not be repeated.
State asserts that Combs’s new counsel actually raised a claim
of ineffective assistance of counsel against co-counsel on2                    1. Improper Penalty Phase Jury Instruction
direct appeal, thus proving that there was no conflict.
Second, citing Ohio v. Zuern, Nos. C-900481, C-910229,                         At the conclusion of Combs’s sentencing hearing, the trial
1991 WL 256497 (Ohio Ct. App. 1st Dist. Dec. 4, 1991)                        court instructed the jury on all seven statutory mitigating
(unpublished opinion), the State argues that the rule in Cole                factors, rather than just the two raised by defense counsel at
applies as a matter of law to a situation in which new co-                   the hearing. The instruction read:
counsel participates in the appeal. Zuern presented a situation
nearly identical to the instant case. In Zuern, the defendant                     What are mitigating factors? The statute provides
challenged the state trial court’s dismissal of post-conviction                certain mitigating factors, some of which you may not
claims of ineffective assistance of counsel pursuant to Cole,                  apply to this hearing. Mitigating factors are factors that
arguing that res judicata was inapplicable because his                         while they do not justify an excuse or justify or excuse
appellate counsel consisted of one of his two trial attorneys                  the crime of aggravated murder, nevertheless may be
joined by one new appellate counsel. See Zuern, 1991 WL                        considered by you as extenuating, lessening, weakening,
256497, at *11. The court of appeals rejected the defendant’s                  excusing to some extent or reducing the degree of the
argument: “Unless we presume . . . that new co-counsel                         defendant’s blame. You are to weigh as mitigating
entering upon a criminal case at the appellate level would                     factors as you may deem applicable in this case the
deliberately not exercise his professional judgment or duty to                 nature and circumstances of the offense, the history,
assert the ineffectiveness of his co-counsel at trial if the                   background and character of the defendant, and the
record demonstrated a basis for such a claim, a presumption                    following factors which are mentioned by way of
we adamantly reject, we perceive no reason why the reference                   illustration and not for the purpose of limiting your
in Cole to ‘new counsel’ would not embrace new co-counsel                      consideration.
as well as new independent counsel.” Id. at *12; see also                         These seven mitigating factors are defined by statute as
Ohio v. Swiger, 708 N.E.2d 1033, 1039 (Ohio Ct. App. 9th                       follows; number 1, whether the victim of the offense
Dist. 1998) (holding res judicata applicable when appellant                    induced or facilitated it.
was represented on direct appeal by trial counsel and a second                    Number 2, whether it is unlikely that the offense would
new attorney); Ohio v. Landrum, No. 98 CA 2401, 1999 WL                        have been committed but for the fact the defendant was
                                                                               under duress, coercion, or strong provocation.
                                                                                  Number 3, whether at the time of committing the
    2
      This point is irrelevant to the determination of whether the rule of
                                                                               offense the defendant because of a mental disease or
Cole was regularly applied to situations such as Combs’s at the time of        defect lacked substantial capacity to appreciate the
his appeal.
36    Combs v. Coyle                                     No. 97-4369        No. 97-4369                                     Combs v. Coyle           9

said that he was going to be with his father, who was dead. R.              22626, at *12 (Ohio Ct. App. 4th Dist. Jan. 11, 1999)
at 1192; J.A. at 2612 (Charles Hogue Test.); R. at 942 (Tony                (unpublished opinion) (same); Ohio v. Broom, No. 72581,
Liming Test.). Combs also argued that the car chase just prior              1998 WL 230425, at *4 (Ohio Ct. App. 8th Dist. May 7,
to the shootings was not an effort to hunt the two women                    1998) (unpublished opinion) (same); Ohio v. Steffen, No. C-
down, but rather an effort to talk with Peggy Schoonover after              930351, 1994 WL 176906, at *3 (Ohio Ct. App. 1st Dist. May
other channels of communication had been cut off.                           11, 1994) (unpublished opinion) (same); Ohio v. Jamison, No.
                                                                            C-910736, 1992 WL 333011, at *5 (Ohio Ct. App. 1st Dist.
  The two critical errors by defense counsel bolstered the                  Nov. 10, 1992) (unpublished opinion) (following Zuern to
State’s case and made Combs’s explanation of the events                     hold that “the phrase ‘new counsel’ includes new co-counsel
seem less likely. Without Fisher’s testimony and without the                as well as new independent counsel,” such that res judicata
use of Combs’s “talk to my lawyer” statement, the State’s                   may be invoked to bar assertion of ineffective assistance of
evidence of purpose and prior calculation and design would                  counsel claims). But see Ohio v. Evans, No. L-97-1134, 1998
have been much weaker. We therefore conclude that absent                    WL 351884, at *4 (Ohio Ct. App. 6th Dist. June 19, 1998)
defense counsel’s errors, there is a reasonable probability that            (unpublished opinion) (“[W]e agree with the trial court that
the jury would have concluded that the State did not meet its               one additional counsel on appeal does not permit the
burden of proving the two contested elements, and thus that                 application of res judicata to claims of ineffective assistance
the jury would have had a reasonable doubt about Combs’s                    of counsel. It is unlikely that, as co-counsel with [trial
guilt.                                                                      counsel], [new counsel] would be inclined to assert a claim on
                                                                            appeal for ineffective assistance of trial counsel.”).
    Federal habeas relief is available to petitioners in state
confinement as a result of a proceeding that was rendered                     However, Zuern was not decided until after the court of
fundamentally unfair by a violation of the Constitution, laws,              appeals had ruled on Combs’s direct appeal.3 We must
or treaties of the United States. See Norris, 146 F.3d at 323               instead look to established state law at the time Combs
(citing Estelle v. McGuire, 502 U.S. 62, 68 (1991)). The                    pursued his appeal. Cole was the authoritative case at that
Supreme Court has explained that “[a]n ineffectiveness claim,               time, and Cole does not speak to a situation in which trial
. . . as our articulation of the standards that govern decision of          counsel continues on appeal with the addition of a new co-
such claims makes clear, is an attack on the fundamental
fairness of the proceeding whose result is challenged.”
Strickland, 466 U.S. at 697. Combs has satisfied both prongs
of the Strickland test, and in so doing he has demonstrated
that his “counsel’s errors were so serious as to deprive [him]
of a fair trial, a trial whose result is reliable.” Strickland, 466
U.S. at 687. He      is therefore entitled to a conditional grant of            3
                                                                                  Even today, it is not clear that the Zuern rule would qualify as a
habeas relief.18                                                            firmly established state procedural rule. The Ohio Supreme Court has
                                                                            never spoken on the issue, and not all the courts of appeals agree with the
                                                                            outcome in Zuern. Furthermore, the reasoning in Zuern seems to be in
                                                                            tension with that of the Supreme Court of Ohio in Lentz. Lentz can be
                                                                            read for the proposition that if a new attorney represents a defendant on
                                                                            appeal, res judicata applies unless there is an actual conflict. There may
     18                                                                     well be an actual conflict in a situation in which trial counsel is simply
       No harmless error analysis is necessary for claims of ineffective    joined by a new attorney on direct appeal, thus suggesting that the per se
assistance of counsel. See Kyles v. Whitley, 514 U.S. 419, 435-36 (1995).   rule of Zuern is the incorrect approach.
10       Combs v. Coyle                                     No. 97-4369         No. 97-4369                                   Combs v. Coyle         35

counsel.4 Because there is ambiguity surrounding the issue                      (naming Dr. Fisher’s testimony first in connection with the
and because the State cannot point to a case firmly                             purpose element).17
establishing as of the time of Combs’s appeal that
ineffectiveness claims must be brought on direct appeal when                       Defense counsel’s failure to object to the use of Combs’s
trial counsel also serves as co-counsel on appeal, we are                       “talk to my lawyer” statement was similarly damaging. Just
unable to conclude that a firmly established state procedural                   as Dr. Fisher’s testimony partly relieved the State of its
rule existed. Indeed, at the time Combs’s appeal was filed it                   burden of proof on an element of the offense, the State
would have been entirely reasonable to conclude that                            strategically used Combs’s protected silence as evidence that
Combs’s new counsel did not meet the Cole standard of being                     Combs was acting rationally, and thus with purpose and prior
“in no way enjoined from asserting the ineffectiveness of                       calculation, after the shootings; the trial court’s instruction
appellant’s trial counsel,” Cole, 443 N.E.2d at 171, and thus                   encouraged the jury to make that inference.
that res judicata would not apply.
                                                                                  Of course, the State presented other evidence of Combs’s
  Because we conclude that no firmly established procedural                     purpose and prior calculation and design. As the Ohio
rule mandated the bringing of ineffectiveness claims on direct                  Supreme Court pointed out:
appeal in Combs’s situation, we may review the merits of all
of those claims, including claims that the state court deemed                     Combs spent a considerable part of the afternoon of the
barred by res judicata.                                                           murders searching for a shotgun. He asked two people
                                                                                  for a shotgun, and eventually drove over eighty miles
B. Ineffective Assistance of Trial Counsel at the                                 before returning to Cincinnati with a shotgun. The
   Culpability Phase                                                              evidence indicates he stole the shotgun he used. After he
                                                                                  drove back to Cincinnati, he confronted Joan and Peggy
  We review a district court’s denial of habeas corpus relief                     and initiated a car chase over several blocks, eventually
de novo, but we review any findings of fact made by the                           cornering them at the Holiday Park Tower office
district court for clear error. Findings of fact made by a state                  building. He deliberately knocked out a window in their
court are entitled to complete deference if supported by the                      car and fired a shotgun into each woman’s head at close
evidence. See Norris v. Schotten, 146 F.3d 314, 323-24 (6th                       range. Those facts alone establish both purposefulness
                                                                                  and prior calculation and design.
                                                                                Combs, 581 N.E.2d at 1076. However, Combs offered an
                                                                                alternative reason for his search for a gun; rather than
     4                                                                          spending the afternoon searching for the means to commit
      In a previous decision, we cited to the court of appeals’s opinion in     two murders, Combs suggested that he was searching for a
Combs, 652 N.E.2d at 209, as “holding that post-conviction relief is not
available by virtue of the doctrine of res judicata to address constitutional   means to kill himself. There was evidence that Combs was
claims that could have been raised on direct appeal from the conviction         contemplating suicide at the time. One witness testified that
and sentence.” Norris v. Schotten, 146 F.3d 314, 332 (6th Cir.), cert.          Combs sounded suicidal just days before the incident, and
denied, --- U.S. ---, 119 S. Ct. 348 (1998). Norris did not involve the         another witness testified that just before the shootings, Combs
issue of whether res judicata applies to bar a claim of ineffective
assistance of trial counsel when one new co-counsel joins trial counsel in
the appeal. Although in Norris we relied on Combs’s explanation of the              17
Perry rule, we did not express an opinion as to whether that rule was                  As Combs points out, the district court acknowledged that Fisher’s
properly applied to the facts of the Combs case.                                testimony was prejudicial. J.A. at 132 (Dist. Ct. Op.).
34     Combs v. Coyle                                      No. 97-4369        No. 97-4369                                    Combs v. Coyle         11

Strickland instructed that “[p]revailing norms of practice as                 Cir.), cert. denied, --- U.S. ---, 119 S. Ct. 348 (1998).5 The
reflected in American Bar Association standards and the like,                 presumption of correctness accorded to state court findings
e.g., ABA Standards for Criminal Justice 4-1.1 to 4-8.6 (2d                   “only applies to basic, primary facts, and not to mixed
ed. 1980) (“The Defense Function”), are guides to                             questions of law and fact,” and it “applies to implicit findings
determining what is reasonable, but they are only guides.”                    of fact, logically deduced because of the trial court’s ability to
Strickland, 466 U.S. at 688. ABA Standard 4-1.2(c) states                     adjudge the witnesses’ demeanor and credibility.” Groseclose
that “[s]ince the death penalty differs from other criminal                   v. Bell, 130 F.3d 1161, 1164 (6th Cir. 1997) (quoting
penalties in its finality, defense counsel in a capital case                  McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996),
should respond to this difference by making extraordinary                     cert. denied, 520 U.S. 1257 (1997)), cert. denied, 523 U.S.
efforts on behalf of the accused.” ABA STANDARDS FOR                          1132 (1998).
CRIMINAL JUSTICE PROSECUTION FUNCTION AND DEFENSE
FUNCTION 120 (3d ed. 1993).                                                     1. The Strickland Standard
  5. Prejudice                                                                  “The benchmark for judging any claim of ineffectiveness
                                                                              must be whether counsel’s conduct so undermined the proper
  In order to establish prejudice, Combs “need not show that                  functioning of the adversarial process that the trial cannot be
counsel’s deficient conduct more likely than not altered the                  relied on as having produced a just result.” Strickland v.
outcome in the case.” Strickland, 466 U.S. at 693. He must                    Washington, 466 U.S. 668, 686 (1984). The well-known two
instead show that there is a reasonable probability that, but for             part test for evaluating ineffectiveness claims was first
counsel’s errors, the factfinder  would have had a reasonable                 articulated in Strickland:
doubt about his guilt.16 See id. at 695. The defense theory
was that Combs’s intoxication rendered him unable to act                        First, the defendant must show that counsel’s
with purpose or prior calculation and design, and yet defense                   performance was deficient. This requires showing that
counsel made two crucial errors that substantially undercut                     counsel made errors so serious that counsel was not
this theory. We conclude that each of these errors is                           functioning as the “counsel” guaranteed the defendant by
sufficiently prejudicial to satisfy the Strickland standard.                    the Sixth Amendment. Second, the defendant must show
                                                                                that the deficient performance prejudiced the defense.
   Presentation of Dr. Fisher’s testimony is perhaps the most                   This requires showing that counsel’s errors were so
devastating error. The testimony of the sole defense expert                     serious as to deprive the defendant of a fair trial, a trial
that Combs, although intoxicated, nevertheless acted with                       whose result is reliable.
purpose and intent was obviously damaging to the defense.
Furthermore, Dr. Fisher’s testimony provided the State with                   Id. at 687; see also, e.g., Tucker v. Prelesnik, 181 F.3d 747,
its most powerful evidence of purpose. R. at 1226-27; J.A. at                 754 (6th Cir. 1999); Chandler v. Jones, 813 F.2d 773, 781
2744-45 (State’s Closing Argument at Culpability Phase)                       (6th Cir. 1987).


                                                                                  5
     16                                                                            The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
      Guilt means guilt of the underlying offenses; Combs must therefore      104-132, 110 Stat. 1214 (1996), is inapplicable to this case because
show not that a factfinder would have had a reasonable doubt about his        Combs filed his petition for a writ of habeas corpus in the district court
culpability for the killings, but rather that a factfinder would have had a   before the enactment of the statute. See Lindh v. Murphy, 521 U.S. 320,
reasonable doubt about his purpose or prior calculation and design.           336 (1997).
12    Combs v. Coyle                               No. 97-4369      No. 97-4369                                   Combs v. Coyle         33

   With regard to the performance prong of the inquiry, the         and would also have enabled counsel to respond to Zompero’s
defendant must show that counsel’s representation fell below        allegedly inaccurate testimony.
an objective standard of reasonableness. Judicial scrutiny of
performance is highly deferential, and “[a] fair assessment of         Additionally, Combs’s counsel made no attempt to redact
attorney performance requires that every effort be made to          portions of a videotaped testimony that may have been
eliminate the distorting effects of hindsight, to reconstruct the   prejudicial to Combs. At trial, the videotaped testimony of
circumstances of counsel’s challenged conduct, and to               Tony Liming, who was      then fifteen years old, was presented
evaluate the conduct from counsel’s perspective at the time.”       by the prosecution.14 Liming was with Combs when he
Strickland, 466 U.S. at 689. Therefore, this court should           obtained a gun on the day of the shootings; he also testified as
judge whether, in light of all the circumstances viewed at the      to Combs’s use of drugs and alcohol on a regular basis and on
time of counsel’s conduct, counsel’s “acts or omissions were        the day in question. At one point, Stidham asked Liming
outside the wide range of professionally competent                  what his feelings toward Combs were. Liming answered: “He
assistance.” Id. at 690. Furthermore, “strategic choices made       is, I guess I liked him, I mean I liked him. He like did stuff,
after thorough investigation of law and facts relevant to           stole stuff from my mom and I didn’t like that.” R. at 944;
plausible options are virtually unchallengeable; and strategic      J.A. at 2631 (Tony Liming Test.). Combs argues that counsel
choices made after less than complete investigation are             should have sought to have this “highly prejudicial ‘other
reasonable precisely to the extent that reasonable professional     acts’” evidence redacted   prior to trial pursuant to Ohio Rule
judgments support the limitations on investigation.” Id. at         of Evidence 404(B),15 and we agree. The statement is likely
690-91; see also Meeks v. Bergen, 749 F.2d 322, 328 (6th Cir.       excludable under Rule 404(B); it does not go to any
1984). Finally, when analyzing an attorney’s performance,           permissible purpose, and it might tend to leave the jury with
“[i]t will generally be appropriate for a reviewing court to        an overall bad impression of Combs’s character. Considering
assess counsel’s overall performance throughout the case in         the potential prejudice from the statement, counsel clearly
order to determine whether the ‘identified acts or omissions’       erred by failing to seek redaction.
overcome the presumption that counsel rendered reasonable
professional assistance.” Kimmelman v. Morrison, 477 U.S.             Counsel’s overall performance is particularly shocking
365, 386 (1986) (quoting Strickland, 466 U.S. at 690).              given the fact that this case involves the death penalty.

   As for the prejudice prong of the Strickland test, the Court
instructed: “The defendant must show that there is a                have been cumulative.
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.         14
                                                                             Liming was questioned on direct by Stidham.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S.              15
                                                                            Ohio Rule of Evidence 404(B) reads: “Evidence of other crimes,
at 694. The prejudice prong “focuses on the question whether        wrongs, or acts is not admissible to prove the character of a person in
counsel’s deficient performance renders the result of the trial     order to show that he acted in conformity therewith. It may, however, be
unreliable or the proceeding fundamentally unfair.” Lockhart        admissible for other purposes, such as proof of motive, opportunity,
v. Fretwell, 506 U.S. 364, 372 (1993). Therefore, the               intent, preparation, plan, knowledge, identity, or absence of mistake or
                                                                    accident.” OHIO R. EVID. 404(B) (Banks-Baldwin 1995).
prejudice inquiry must not focus solely on mere outcome                  The Ohio Supreme Court has instructed that Rule 404(B) “must be
determination; attention must be given to “whether the result       construed against admissibility, and the standard for determining
                                                                    admissibility of such evidence is strict.” Ohio v. Broom, 533 N.E.2d 682,
                                                                    686 syllabus para. 1 (Ohio 1988), cert. denied, 490 U.S. 1075 (1989).
32     Combs v. Coyle                                  No. 97-4369       No. 97-4369                                   Combs v. Coyle        13

establish one of the elements of its case in chief. Quite                of the proceeding was fundamentally unfair or unreliable.” Id.
simply, this testimony was completely devastating to the                 at 369.
defense, and counsel’s decision to present it was objectively
unreasonable.                                                              Both the performance and prejudice components of the
                                                                         ineffectiveness inquiry are mixed questions of law and fact
  4.      Defense Counsel’s Overall Performance at the                   entitled to de novo review. See Strickland, 466 U.S. at 698;
          Culpability Phase                                              Groseclose, 130 F.3d at 1164 (“An ineffective assistance of
                                                                         counsel claim presents a mixed question of law and fact, for
   We next proceed to assess defense counsel’s overall                   which both the state-court and district-court determinations
performance throughout the culpability phase of Combs’s                  are subject to de novo review by this court.”).
trial. We acknowledge that defense counsel presented
significant evidence that Combs was intoxicated on the day of              2.    Defense Counsel’s Failure to Object to the
the shootings. However, the errors that we have identified are                   Unconstitutional Use of Combs’s “Talk to My
fundamental errors that were severely damaging to Combs’s                        Lawyer” Statement
defense. In fact, we believe that each of the errors that we
have identified is independently sufficient to warrant a                    Combs first claims that his trial counsel provided
conclusion that Combs’s counsel’s performance was                        ineffective representation by failing to object both to the
constitutionally deficient. However, these errors were                   prosecution’s use of a statement made by Combs to a police
compounded by other failures on the part of defense counsel.             officer and to the trial court’s sua sponte jury instruction
                                                                         concerning the6purposes for which the jury could consider
  For example, Combs’s counsel failed to investigate and to              that statement. As the Ohio Supreme Court found, after
present available physical evidence of Combs’s intoxication              Combs had been shot Cincinnati police officer Douglas
on the day of the shootings. Combs argues that, had defense              Ventre arrived on the scene and found Combs sitting on the
counsel investigated this matter, they would have found out              ground and holding a shotgun. See Combs, 581 N.E.2d at
from his mother that “when [she] got the car back [from the              1074. Ventre then pulled the shotgun away from Combs and
police after their investigation] there were wine cooler bottles,        asked Combs what had happened, to which Combs replied
and beer cans in the car” and that “[a] cooler in the back still         “the guy shot me.” Id. (internal quotation marks omitted).
contained two beers.” J.A. at 1304 (Aff. of Geraldine                    Ventre later repeated the same question as Combs was being
Combs). At trial, Officer Zompero, who is a police                       placed into an ambulance, and Combs “told [Ventre] to talk
criminalist, testified that he had conducted a search of                 to his lawyer.” Id. (internal quotation marks omitted). After
Combs’s car, but had not found any kind of container that                Officer Ventre testified about this “talk to my lawyer”
would be used to hold alcohol such as a beer can, wine cooler            statement, the trial court instructed:
can, or whiskey bottle. R. at 1081; J.A. at 2700 (Zompero
Test.). Investigating the presence of alcohol containers in the              Members of the jury, I am going to give you a special
car would have enabled defense counsel to present some                     instruction at this time based upon the testimony that you
corroborating physical evidence of Combs’s intoxication,13                 heard the defendant Ronald Dean Combs has a
                                                                           constitutional right not to speak to members of law
     13
      Although defense counsel did present substantial testimonial           6
evidence of Combs’s intoxication, no corroborating physical evidence          This claim was raised on direct appeal and denied. It was therefore
was presented. Therefore, the evidence of alcohol containers would not   properly preserved for our review.
14   Combs v. Coyle                               No. 97-4369      No. 97-4369                              Combs v. Coyle       31

  enforcement without counsel and not to speak to them.            such as Combs’s state of despondency, his difficult past, his
  You cannot draw any inferences for or against the                history of severe drug and alcohol abuse, and his stormy
  defendant because he may have requested an attorney or           relationship with Peggy Schoonover. R. at 1176-78; J.A. at
  made no further statements to Officer Ventre when he             2579-81 (Fisher Test.). Additionally, Fisher supported the
  was on the stretcher as Officer Ventre testified to.             contention that Combs was under the influence when he shot
     You may consider this evidence, however, as it relates        the victims. However, Stidham testified that defense counsel
  to the elements of purpose and prior calculation and             put Fisher on the stand in an effort “to establish that Combs
  design but what weight you give to this testimony                could not act purposely and intentionally because of his
  depends upon your findings and the weight that you               diminished capacity,” and Stidham admitted that he was
  attribute to this testimony in this regard so please             “surprised” when Fisher testified to the opposite. J.A. at 2920
  remember that.                                                   (Stidham Dep.). Fisher’s opinion regarding whether Combs
                                                                   lacked the requisite intent to commit the crimes was crucial
R. at 1052-53; J.A. at 2673-74. Defense counsel did not            to the defense theory; defense counsel’s failure to have
object to this jury instruction, nor did they object to the        questioned Fisher in this regard prior to trial is inexcusable.
prosecution’s use of this statement at trial. In closing           Defense counsel should have known Fisher’s opinion on this
argument, the prosecution stated:                                  ultimate issue and should have prepared accordingly.
  Talk to my lawyer. Talk to my lawyer. Does that sound               Regardless of whether Combs’s counsel should have
  like someone who’s so intoxicated he doesn’t know what           known or instead actually knew Fisher’s opinion regarding
  is going on? Isn’t that evidence that he realizes the            Combs’s intent, however, counsel’s decision to put him on
  gravity of the situation and at this time gave that              the stand was objectively unreasonable. In Ohio, evidence of
  particular comment or response to Officer Ventre?                voluntary intoxication “may be considered in determining
                                                                   whether an act was done intentionally or with deliberation or
R. at 1255; J.A. at 2761. Combs argues that “the trial court’s     premeditation.” Ohio v. Fox, 428 N.E.2d 410, 412 (Ohio
instruction permitted, and the prosecution exploited, Mr.          1981). Thus, establishing that a defendant was intoxicated
Combs’ exercise of his right to consult with counsel as            when he committed the crime in question is not, in and of
substantive evidence on the ultimate culpability phase issue       itself, helpful; the evidence must also lead the factfinder to an
— Mr. Combs’ intent.” Pet’r Br. at 18.                             inference that intoxication deprived the defendant of the
                                                                   ability to form intent. Indeed, Stidham testified that the
   In order to decide whether counsel’s failure to object to the   defense presented Fisher in order to establish that Combs
use of the “talk to my lawyer” statement was deficient, we         could not have been acting purposefully. Fisher’s testimony
must first determine whether the use of this statement was         directly contradicted the sole defense theory that Combs
constitutionally defective such that any reasonable counsel        lacked the requisite intent to commit murder. Although
would have objected under the circumstances. Although              defense counsel presented substantial testimonial evidence
Combs’s statement referred not to silence but to his right to      that Combs was in fact intoxicated at the time of the
an attorney, the admissibility of the statement is properly        shootings, this testimony was rendered worthless when the
analyzed as a comment on prearrest silence. See Wainwright         defense’s own expert testified that Combs’s intoxication did
v. Greenfield, 474 U.S. 284, 295 n.13 (1986) (“With respect        not legally excuse his crime. Furthermore, not only did
to post-Miranda warnings ‘silence,’ we point out that silence      Fisher’s testimony destroy any hope of a successful
does not mean only muteness; it includes the statement of a        intoxication defense, but it also helped the prosecution to
30     Combs v. Coyle                                      No. 97-4369        No. 97-4369                             Combs v. Coyle      15

was impaired by what was happening to him and what he was                     desire to remain silent as well as of a desire to remain silent
ingesting.” R. at 1187; J.A. at 2590 (Fisher Test.). On re-                   until an attorney has been consulted.”). Combs’s statement is
cross, however, Dr. Fisher gave the same testimony regarding                  best understood as communicating a desire to remain silent
intent:                                                                       outside the presence of an attorney.
   Q. But, Doctor, was it so impaired that he could not                          Combs grounds his argument about the admissibility of the
  — wasn’t so impaired that he could not form this intent?                    statement in the Supreme Court’s decision in Doyle v. Ohio,
                                                                              426 U.S. 610 (1976). In Doyle, the petitioner took the stand
     A. That is correct, yes.                                                 at his trial for selling marijuana and explained, for the first
                                                                              time, that he had been framed. See id. at 612-13. For
R. at 1188; J.A. at 2591 (Fisher Test.). The prosecutor then                  impeachment purposes, the prosecutor asked the petitioner
emphasized Dr. Fisher’s testimony       regarding intent three                why he had not told this story immediately after his arrest.
times in closing arguments.12 Combs argues that counsel’s                     See id. at 613. The petitioner was convicted, and he appealed
failure to anticipate, suppress, prepare for, object to, or avoid             on the ground that cross-examination regarding his post-arrest
repetition of this damaging testimony rendered his                            silence was error. See id. at 615. The Supreme Court held
performance constitutionally deficient.                                       “that the use for impeachment purposes of petitioners’
                                                                              silence, at the time of arrest and after receiving Miranda
   Although Combs’s counsel’s decision to present Dr.                         warnings, violated the Due Process Clause of the Fourteenth
Fisher’s testimony may be considered a strategic one, it was                  Amendment.” Id. at 619. The theory underlying Doyle is that
a decision made without undertaking a full investigation. Cf.                 while Miranda warnings contain no express assurance that
Strickland, 466 U.S. at 691 (“[C]ounsel has a duty to make                    silence will carry no penalty, “such assurance is implicit to
reasonable investigations or to make a reasonable decision                    any person who receives the warnings.” Id. at 618. On this
that makes particular investigations unnecessary.”); Horton v.                reasoning, the Court concluded that it would be
Zant, 941 F.2d 1449, 1462 (11th Cir. 1991) (“[O]ur case law                   fundamentally unfair first to induce a defendant to remain
rejects the notion that a ‘strategic’ decision can be reasonable              silent through Miranda warnings and then to penalize the
when the attorney has failed to investigate his options and                   defendant who relies on those warnings by allowing the
make a reasonable choice between them.”), cert. denied, 503                   defendant’s silence to be used to impeach an exculpatory
U.S. 952 (1992). At trial, Dr. Fisher did present several                     explanation offered at trial. See id.
aspects of Combs’s history that were psychologically relevant,
                                                                                 Later cases have restricted Doyle and have reaffirmed that
                                                                              the “fundamental unfairness” identified by the Court derives
     12                                                                       from the implicit assurances of the Miranda warnings. In
        Combs’s counsel chose to put Dr. Fisher on the stand again at the
sentencing phase, and Dr. Fisher testified, this time on direct, that Combs   Jenkins v. Anderson, 447 U.S. 231 (1980), the Court held that
acted with intent. Dr. Fisher stated: “Well, it is my opinion that a person   due process is not violated by the impeachment use of
with Mr. Combs’ exact history of drug and alcohol abuse, drug and             prearrest, pre-Miranda warnings silence, see id. at 238-39. In
alcohol ingestion, and treatment would still be able to control ordinary      Fletcher v. Weir, 455 U.S. 603 (1982), the Court held that
behaviors, plan behavior in a purposeful way, carry out behavior in a         impeachment use of post-arrest, pre-Miranda warnings
purposeful way. I think his judgment would have been a continuated [sic]
to an extent and I think that one would see perhaps a greater degree of       silence does not offend due process, see id. at 607. The Weir
impulsivity in his behavior but I think that the basic issue of control       Court explained that Doyle was a case in which the
would still be intact with his history.” R. at 1385; J.A. at 2598 (Fisher     government had actually induced silence with Miranda
Test.).
16       Combs v. Coyle                                 No. 97-4369        No. 97-4369                                Combs v. Coyle   29

warnings, and it noted that any broadening of Doyle to a                   culpability phase regarding Combs’s drug and alcohol abuse
situation in which a defendant had not yet received Miranda                and his intoxication on the day of the events; on cross-
warnings — even if the defendant was in custody — was                      examination, Dr. Fisher expressed the opinion that, although
unsupported by the reasoning of Doyle. See id. at 605-06.                  intoxicated, Combs acted purposefully and intentionally.
                                                                           Defense counsel objected to the prosecutor’s question, but the
  In the instant case, Combs had not received Miranda                      objection was overruled. The exchange on cross proceeded
warnings prior to his “talk to my lawyer” statement. The                   as follows:
Ohio Supreme Court concluded that this was of no
significance based on the following reasoning:                                 Q. Dr. Fisher, you have rendered an opinion that at
                                                                             the time, July 15th, the defendant was under the
  [A]t the point when Combs was placed in the ambulance,                     influence, is that correct?
  we find that Combs was in custody and had a right to
  remain silent, consult a lawyer, and receive a Miranda                       A. That’s my opinion, yes.
  warning. When he arrived at the scene, Officer Ventre
  personally took the shotgun from Combs; there were two                       Q. You are not however saying that the acts he did on
  women dead from shotgun blasts in the adjacent car; and                    that particular day were not done purposely?
  Ventre had been at the scene for some ten to fifteen
  minutes. Ventre’s questioning, without a Miranda                                  MR. STIDHAM: Objection.
  warning, violated those rights.
                                                                                    THE COURT:         Overruled.
Combs, 581 N.E.2d at 1075-76. However, even if Combs
should have received Miranda warnings prior to his “talk to                    A. I certainly am not, no.
my lawyer” statement, the Doyle rationale is still inapplicable.
As we have explained, the Doyle line of cases clearly rests on                 Q. So he may have been under the influence or your
the theory that Miranda warnings themselves carry an implicit                opinion based on what you were told he was under the
assurance that silence will not be penalized; actual receipt of              influence but at the same time he was acting intentionally
the warnings is key. Therefore, the comment on Combs’s                       and purposely when he acted as he did on July 15th; is
pre-Miranda silence did not violate due process.                             that correct?

   This does not, however, rule out the possibility that such                       MR. STIDHAM: Objection.
comment is a violation of Combs’s            Fifth Amendment                        THE COURT:         Overruled.
privilege against self-incrimination.7 In Jenkins, in addition
to ruling that impeachment use of a defendant’s prearrest                      A. I certainly believe that he was, yes.
silence is not violative of due process, the Court also held that
such use does not offend the Fifth Amendment’s privilege                   R. at 1183; J.A. at 2586 (Fisher Test.).
against self-incrimination. See Jenkins, 447 U.S. at 238. The
                                                                             On redirect, defense counsel again attempted to show that
                                                                           intoxication has an effect on one’s ability to make judgments.
     7                                                                     Defense counsel elicited Dr. Fisher’s testimony that “it would
     The Fifth Amendment provides in relevant part that no person “shall
be compelled in any criminal case to be a witness against himself.” U.S.   be my conclusion psychologically that [Combs’s] judgment
CONST. amend. V.
28     Combs v. Coyle                            No. 97-4369     No. 97-4369                             Combs v. Coyle      17

  (B) Exclusion discretionary.                                   petitioner in that case took the stand at his murder trial and
    Although relevant, evidence may be excluded if its           testified that he had killed in self-defense. See id. at 232.
  probative value is substantially outweighed by                 During cross-examination and again during closing
  considerations of undue delay, or needless presentation        arguments, the prosecutor, referring to the fact that the
  of cumulative evidence.                                        petitioner had waited two weeks to report the stabbing,
                                                                 attempted to impeach the petitioner’s credibility by implying
OHIO R. EVID. 403. The Ohio Supreme Court concluded that         that he would have come forward earlier if he had truly killed
the comments regarding the “talk to my lawyer” statement         in self-defense. See id. at 233-34. The Supreme Court easily
were improper under these rules, stating:                        disposed of the petitioner’s Fifth Amendment objection to this
                                                                 use of his prearrest silence, relying on its 1926 decision in
    Additionally, the “talk to my lawyer” evidence does          Raffel v. United States, 271 U.S. 494 (1926). Raffel held that
  not relate to or tend to prove prior calculation and design    the government may impeach a defendant who takes the stand
  or purposefulness. Combs’ comment simply meant that            in his own defense with his prior silence without violating the
  he was exercising his right to counsel and nothing more.       Fifth Amendment. See id. at 499. The Court in Raffel relied
  Even if this remark was initially admissible, Evid.R. 401      on a waiver theory, reasoning that a defendant waives his
  and 403 would otherwise invite exclusion from evidence.        Fifth Amendment immunity from giving testimony by
  No justification is apparent for the instruction that the      offering himself as a witness. See id. at 496-97. The Raffel
  evidence related to either purposefulness or prior             Court concluded by explaining:
  calculation and design. Thus, we conclude the trial court
  erred in allowing this remark into evidence and in                 The safeguards against self-incrimination are for the
  instructing the jury to consider the remark in relation to       benefit of those who do not wish to become witnesses in
  purposefulness and prior calculation and design.                 their own behalf and not for those who do. There is a
                                                                   sound policy in requiring the accused who offers himself
Combs, 581 N.E.2d at 1076.                                         as a witness to do so without reservation, as does any
                                                                   other witness. We can discern nothing in the policy of
   A reasonable defense attorney would have known that the         the law against self-incrimination which would require
admission of the “talk to my lawyer” statement was                 the extension of immunity to any trial or to any tribunal
prejudicial to the client and would have objected on the basis     other than that in which the defendant preserves it by
of Rule 403. Such an objection would have had at least a           refusing to testify.
likelihood of success, given the Ohio Supreme Court’s
pronouncement on this issue. A Rule 403 objection to Officer     Id. at 499. The Jenkins Court therefore reasoned that the rule
Ventre’s testimony could have prevented the erroneous            of Raffel permits impeachment use of prearrest silence.
instruction as well as the damaging use of the statement by
the prosecution.                                                    The Jenkins Court went on to explain that permitting the
                                                                 impeachment use of a defendant’s prior silence does not
  3.   Defense Counsel’s Presentation of Dr. Fisher’s            unconstitutionally burden the exercise of Fifth Amendment
       Testimony                                                 rights. See Jenkins, 447 U.S. at 236-38. The Court noted that
                                                                 the “‘threshold question is whether compelling the election
  Combs next alleges ineffectiveness as a result of counsel’s    impairs to an appreciable extent any of the policies behind the
preparation of and strategy with regard to Dr. Fisher, the       rights involved.’” Id. at 236 (quoting Chaffin v. Stynchcombe,
defense’s only expert witness. Dr. Fisher testified at the
18    Combs v. Coyle                                No. 97-4369      No. 97-4369                                      Combs v. Coyle          27

412 U.S. 17, 32 (1973)). Relying on prior decisions, the             lodged an objection on that basis. Counsel’s failure to have
Jenkins Court reasoned that the possibility of impeachment by        objected at any point is inexplicable, and 11
                                                                                                                 we can perceive no
prior silence does not impermissibly burden the privilege            possible strategic reason for such failure. Not only did the
against self-incrimination. See id. at 236-38. These prior           failure to object ensure that the jury could use Combs’s
decisions suggested that a defendant’s real dilemma lies in          protected silence against him, but it also guaranteed that both
determining whether to testify or not; once a defendant has          the admission of the statement and the trial court’s instruction
voluntarily taken the stand, the rule that he must testify fully     would be analyzed on review only for plain error. Counsel’s
does not significantly add to this dilemma and is indeed a           performance with respect to this issue was constitutionally
defendant’s obligation, as the privilege against self-               deficient under the Strickland standard.
incrimination “cannot be construed to include the right to
commit perjury.” Id. at 238 (quoting Harris v. New York, 401           Even if Combs’s counsel failed to realize that use of the
U.S. 222, 225 (1971)). The Court then explained that “[i]n           “talk to my lawyer” statement as substantive evidence of guilt
determining whether a constitutional right has been burdened         might be unconstitutional, counsel still should have objected
impermissibly, it also is appropriate to consider the legitimacy     to the statement on evidentiary grounds. Ohio Rule of
of the challenged governmental practice.” Id. at 238. The            Evidence 401 provides the definition of “relevant evidence”:
Court reasoned that the impeachment use of prearrest silence         “‘Relevant evidence’ means evidence having any tendency to
“enhance[s] the reliability of the criminal process” by giving       make the existence of any fact that is of consequence to the
prosecutors the chance to test a defendant’s credibility by          determination of the action more probable or less probable
asking him to explain prior inconsistencies. Id. “Once a             than it would be without the evidence.” OHIO R. EVID. 401.
defendant decides to testify, ‘[t]he interests of the other party    Rule 403 provides:
and regard for the function of courts of justice to ascertain the
truth become relevant, and prevail in the balance of                   (A) Exclusion mandatory.
considerations determining the scope and limits of the                   Although relevant, evidence is not admissible if its
privilege against self-incrimination.’” Id. (quoting Brown v.          probative value is substantially outweighed by the danger
United States, 356 U.S. 148, 156 (1958)) (alteration in                of unfair prejudice, of confusion of the issues, or of
original).                                                             misleading the jury.

   Jenkins did not, however, address the question at issue in
this case, namely, whether the use of prearrest silence as
substantive evidence of guilt violates the Fifth Amendment.
See id. at 236 n.2 (leaving this question unresolved). That use
of a defendant’s prearrest silence as substantive evidence of        astounded us that we were shocked.” J.A. at 2928 (Stidham Dep.).
guilt is significantly different than the use of prearrest silence
                                                                         11
to impeach a defendant’s credibility on the stand is clear. In              The State argues that the trial court’s sua sponte instruction
Griffin v. California, 380 U.S. 609, 615 (1965), the Supreme         following Officer Ventre’s testimony “limited any speculative damage to
Court held that the Fifth Amendment “forbids either comment          Combs,” so that defense counsel’s failure to object was a sound strategic
by the prosecution on the accused’s [refusal to testify at trial]    decision designed not to draw any more attention to the matter.
                                                                     Appellee’s Br. at 52. However, far from limiting the damage caused by
or instructions by the court that such silence is evidence of        the admission of the statement, the trial court’s instruction exacerbated it.
guilt.” The Court reasoned that a contrary rule would allow          The instruction encouraged the jury to use Combs’s prearrest silence as
the state to submit as substantive proof of the defendant’s          substantive evidence of purpose and prior calculation and design — the
                                                                     key issues at trial.
26     Combs v. Coyle                                       No. 97-4369         No. 97-4369                             Combs v. Coyle      19

for impeachment purposes, the use of silence as substantive                     guilt his silence by not testifying. See id. at 613 (“No formal
evidence of guilt does not enhance the reliability of the                       offer of proof is made as in other situations; but the
criminal process. Just as “every post-arrest silence is                         prosecutor’s comment and the court’s acquiescence are the
insolubly ambiguous,” Doyle, 426 U.S. at 617, there are many                    equivalent of an offer of evidence and its acceptance.”). Such
reasons why a defendant may remain silent before arrest, such                   proffer of the defendant’s refusal to testify as evidence of
as a knowledge of his Miranda rights or a fear that his story                   guilt would impermissibly penalize the exercise of the
may not be believed. The probative value of such silence is                     privilege against self-incrimination and would “cut[] down on
therefore minimal. Furthermore, the use of prearrest silence                    the privilege by making its assertion costly.” Id. at 614.
may even subvert the truthfinding process; because it
pressures the defendant to explain himself or to suffer a court-                   The circuits that have considered whether the government
sanctioned inference of guilt, the likelihood of perjury is                     may comment on a defendant’s prearrest silence in its case in
increased. In sum, permitting the use of a defendant’s                          chief are equally divided. Three circuits have held that such
prearrest silence as substantive evidence of guilt would                        use violates the privilege against self-incrimination found in
greatly undermine the policies behind the privilege against                     the Fifth Amendment, relying principally upon Griffin. See
self-incrimination while adding virtually nothing to the                        United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017
reliability of the criminal process.                                            (7th Cir. 1987); Coppola v. Powell, 878 F.2d 1562, 1568 (1st
                                                                                Cir.), cert. denied, 493 U.S. 969 (1989); United States v.
  In the instant case, Combs clearly invoked the privilege                      Burson, 952 F.2d 1196, 1201 (10th Cir. 1991), cert. denied,
against self-incrimination by telling the officer to talk to his                503 U.S. 997 (1992); cf. United States v. Caro, 637 F.2d 869,
lawyer, thus conveying his desire to remain silent without a                    876 (2d Cir. 1981) (“Whatever the future impact of Jenkins
lawyer present. Combs never waived this privilege and did                       may be, we have found no decision permitting the use of
not testify at his trial. Therefore, the prosecutor’s comment                   silence, even the silence of a suspect who has been given no
on Combs’s prearrest silence in its case in chief and the trial                 Miranda warnings and is entitled to none, as part of the
court’s instruction permitting the jury to use Combs’s silence                  Government’s direct case.”; “[W]e are not confident that
as substantive evidence of guilt violated Combs’s Fifth                         Jenkins permits even evidence that a suspect remained silent
Amendment rights.                                                               before he was arrested or taken into custody to be used in the
                                                                                Government’s case in chief.”). In Savory, the Seventh Circuit
  Defense counsel’s failure to object to the unconstitutional                   explained that because the defendant did not take the stand
use of Combs’s “talk to my lawyer statement” clearly fell                       and because the prosecution referred to the defendant’s
below an objective standard of reasonableness. Although the                     silence as substantive evidence of guilt, the case did not
contours of the privilege against self-incrimination may                        involve the application of Doyle but rather the application of
sometimes be unclear, that a defendant’s silence cannot be                      Griffin. See Savory, 832 F.2d at 1017. The Seventh Circuit
used as substantive evidence against him at trial is a                          reasoned that while Griffin involved governmental use of the
fundamental aspect of the privilege. Combs’s counsel should                     defendant’s silence at trial, “[t]he right to remain silent,
have realized that the use of Combs’s prearrest silence against                 unlike the right to counsel, attaches before the institution of
him was at least constitutionally suspect10 and should have                     formal adversary proceedings.” Id. at 1017. The court
                                                                                therefore concluded that Griffin’s prohibition on the use of a
                                                                                defendant’s silence as substantive evidence of guilt “applies
     10
        In fact, it appears that Combs’s counsel did realize the problems       equally to a defendant’s silence before trial, and indeed, even
surrounding the use of the “talk to my lawyer” statement. Stidham
testified in a deposition that the trial court’s instruction on the issue “so
20       Combs v. Coyle                                 No. 97-4369        No. 97-4369                              Combs v. Coyle       25

before arrest.” Id.8 In Coppola, the First Circuit cited Raffel              inhumane treatment and abuses; our sense of fair play
and Griffin and reasoned that the “broad rule of law” set forth              which dictates “a fair state-individual balance by
in those cases “is that where a defendant does not testify at                requiring the government to leave the individual alone
trial it is impermissible to refer to any fifth amendment rights             until good cause is shown for disturbing him and by
that defendant has exercised.” Coppola, 878 F.2d at 1567. It                 requiring the government in its contest with the
therefore held that the prosecution’s use of the defendant’s                 individual to shoulder the entire load”; our respect for the
prearrest silence in its case in chief violated the Fifth                    inviolability of the human personality and of the right of
Amendment. See id. at 1568. The Tenth Circuit reached the                    each individual “to a private enclave where he may lead
same result in Burson: “The general rule of law is that once a               a private life”; our distrust of self-deprecatory statements;
defendant invokes his right to remain silent, it is                          and our realization that the privilege, while sometimes “a
impermissible for the prosecution to refer to any Fifth                      shelter to the guilty,” is often “a protection to the
Amendment rights which defendant exercised. To be sure,                      innocent.”
exceptions exist to this rule, such as the use of silence for
impeachment in certain circumstances, but such exceptions                  Id. at 55 (citations omitted). As the Jenkins Court recognized,
have no applicability to the case before us.” 952 F.2d at 1201             when the government uses a defendant’s prearrest silence for
(citation omitted).                                                        purposes of impeachment, these policies are largely not
                                                                           implicated; every defendant is already under some pressure to
   Three circuits, on the other hand, have reached the opposite            testify fully so that the jury does not draw an unfavorable
conclusion. See United States v. Rivera, 944 F.2d 1563, 1568               inference from his silence (or partial silence), and a rule
(11th Cir. 1991); United States v. Zanabria, 74 F.3d 590, 593              permitting a defendant to be impeached on the stand with
(5th Cir. 1996); United States v. Oplinger, 150 F.3d 1061,                 prior silence does not add substantially to this pressure. If, on
1066-67 (9th Cir. 1998). In Rivera, the Eleventh Circuit,                  the other hand, prearrest silence may be used as substantive
citing Jenkins, held that “[t]he government may comment on                 evidence of guilt regardless of whether or not the defendant
a defendant’s silence if it occurred prior to the time that he is          testifies at trial, then the defendant is cast into the very
arrested and given his Miranda warnings.” Rivera, 944 F.2d                 trilemma outlined by the Murphy Court. Because in the case
at 1568. Although the defendant raised only a due process                  of substantive use a defendant cannot avoid the introduction
challenge to the use of her prearrest silence, the Eleventh                of his past silence by refusing to testify, the defendant is
Circuit found no constitutional infirmity with the use of that             under substantial pressure to waive the privilege against self-
                                                                           incrimination either upon first contact with police or later at
                                                                           trial in order to explain the prior silence. Perhaps most
     8                                                                     importantly, use of a defendant’s prearrest silence as
      The Seventh Circuit distinguished the Doyle line of cases as         substantive evidence of guilt substantially impairs the “sense
follows:
     [T]he Doyle rule is predicated on the implied promise of the          of fair play” underlying the privilege. Unlike in the case of
     Miranda warnings. The cases which have allowed impeachment            impeachment use, the use of a defendant’s prior silence as
     by silence rely on the fact that the defendant opens himself to       substantive evidence of guilt actually lessens the
     impeachment by taking the stand. There is, on the other hand,         prosecution’s burden of proving each element of the crime.
     a constitutional right to say nothing at all about the allegations.
     While the presence of Miranda warnings might provide an
     additional reason for disallowing use of the defendant’s silence        We also conclude that the government’s use of a
     as evidence of guilt, they are not a necessary condition to such      defendant’s prearrest silence in its case in chief is not a
     a prohibition.                                                        legitimate governmental practice. Unlike the use of silence
Savory, 832 F.2d at 1017-18 (citations omitted).
24   Combs v. Coyle                              No. 97-4369      No. 97-4369                              Combs v. Coyle      21

[individual’s] position would have understood the situation.’”    silence in the government’s case in chief. See id. The Fifth
(quoting Berkemer, 468 U.S. at 442) (alteration in original)).    Circuit in Zanabria held, without citing any cases, that the
Applying that standard to the facts of this case leads to a       Fifth Amendment did not protect the defendant’s prearrest
conclusion that Combs was in custody when Officer Ventre          silence because the silence at issue was not induced by the
asked him for the second time what had happened. Although         government. See Zanabria, 74 F.3d at 593. The court
Miranda warnings are not required prior to routine                explained: “The fifth amendment protects against compelled
questioning when officers have no details concerning what         self-incrimination but does not, as Zanabria suggests,
happened when they arrive on the scene, see United States v.      preclude the proper evidentiary use and prosecutorial
Wolak, 923 F.2d 1193, 1196 (6th Cir.), cert. denied, 501 U.S.     comment about every communication or lack thereof by the
1217 (1991), the instant case presents a different situation.     defendant which may give rise to an incriminating inference.”
Ventre personally took the shotgun away from Combs; he            Id. Most recently, the Ninth Circuit joined the Fifth and
testified that he “pointed [his] weapon at the subject on the     Eleventh Circuits in holding that the use of a defendant’s
ground and ordered him to drop the shotgun” and that he           prearrest silence as substantive evidence of guilt does not
“ordered him several times to drop the shotgun and [Combs]        violate the Fifth Amendment. See Oplinger, 150 F.3d at
started raising the shotgun toward me.” R. at 1042; J.A. at       1067. The Ninth Circuit, following the reasoning of Justice
2670 (Ventre Test.). In addition, ten or fifteen minutes passed   Stevens’s concurring opinion in Jenkins, explained that “the
from the time Ventre arrived on the scene until the second        privilege against compulsory self-incrimination is irrelevant
question. In that time, other officers had arrived and Ventre     to a citizen’s decision to remain silent when he is under no
would surely have had some details about the incident. A          official compulsion to speak.” Id. at 1066.
reasonable person in Combs’s situation could have believed
that he was under arrest, and we therefore conclude that             We agree with the reasoning expressed in the opinions of
Combs was in custody.                                             the Seventh, First, and Tenth Circuits, and today we join those
                                                                  circuits in holding that the use of a defendant’s prearrest
   Having decided that the privilege against self-incrimination   silence as substantive evidence of guilt violates the Fifth
applies to a prearrest situation, an analysis such as the one     Amendment’s privilege against self-incrimination. Like those
employed by the Court in Jenkins leads us to the conclusion       circuits, we believe “that application of the privilege is not
that the use of prearrest silence as substantive evidence of      limited to persons in custody or charged with a crime; it may
guilt is an impermissible burden upon the exercise of that        also be asserted by a suspect who is questioned during the
privilege. First, permitting the use of silence in the            investigation of a crime.” Coppola, 878 F.2d at 1565. The
government’s case in chief would substantially impair the         Supreme Court has given the privilege against self-
policies behind the privilege. The Supreme Court in Murphy        incrimination a broad scope, explaining that “[i]t can be
v. Waterfront Commission, 378 U.S. 52 (1964), explained:          asserted in any proceeding, civil or criminal, administrative or
                                                                  judicial, investigatory or adjudicatory; and it protects against
  [The privilege against self-incrimination] reflects many        any disclosures that the witness reasonably believes could be
  of our fundamental values and most noble aspirations:           used in a criminal prosecution or could lead to other evidence
  our unwillingness to subject those suspected of crime to        that might be so used.” Kastigar v. United States, 406 U.S.
  the cruel trilemma of self-accusation, perjury or               441, 444-45 (1972) (footnote omitted); see also Hoffman v.
  contempt; our preference for an accusatorial rather than        United States, 341 U.S. 479, 486 (1951) (“[The privilege]
  an inquisitorial system of criminal justice; our fear that      must be confined to instances where the witness has
  self-incriminating statements will be elicited by               reasonable cause to apprehend danger from a direct answer.”);
22       Combs v. Coyle                                  No. 97-4369        No. 97-4369                                     Combs v. Coyle          23

Hoffman, 341 U.S. at 486-87 (“To sustain the privilege, it                  to Combs, for we agree with the Ohio Supreme Court’s
need only be evident from the implications of the question, in              finding that Combs was in custody at the time he made the
the setting in which it is asked, that a responsive answer to the           “talk to my lawyer” statement. In Stansbury v. California,
question or an explanation of why it cannot be answered                     511 U.S. 318 (1994), the Supreme Court explained that “[i]n
might be dangerous because injurious disclosure could                       determining whether an individual was in custody, a court
result.”). In a prearrest setting as well as in a post-arrest               must examine all of the circumstances surrounding the
setting, it is clear that a potential defendant’s comments could            interrogation, but ‘the ultimate inquiry is simply whether
provide damaging evidence that might be used in a criminal                  there [was] a ‘formal arrest or restraint on freedom of
prosecution; the privilege should thus apply.                               movement’ of the degree associated with a formal arrest.’”
                                                                            Id. at 322 (citing California v. Beheler, 463 U.S. 1121, 1125
   Furthermore, we note that even under the reasoning of                    (1983)) (alteration in original). Moreover, in the custody
Justice Stevens in his Jenkins concurrence, the Fifth                       determination, “the only relevant inquiry is how a reasonable
Amendment would apply to Combs’s situation. In Jenkins,                     man in the suspect’s position would have understood his
Justice Stevens agreed with the majority that the Fifth                     situation.” Id. at 324 (quoting Berkemer v. McCarty, 468
Amendment was inapplicable to the petitioner’s claim, but                   U.S. 420, 442 (1984)); see also United States v. Ozuna, 170
Justice Stevens objected to the majority’s reliance on the                  F.3d 654, 658 (6th Cir. 1999) (“Determination of whether an
waiver theory of Raffel. See Jenkins, 447 U.S. at 241                       individual is in custody for purposes of applying the Miranda
(Stevens, J., concurring in the judgment). Instead, Justice                 doctrine considers ‘how a reasonable man in the
Stevens would have ruled that the Fifth Amendment does not
apply to a precustody context: “When a citizen is under no
official compulsion whatever, either to speak or to remain                      government has already attempted to compel him to do so. If no
silent, I see no reason why his voluntary decision to do one or                 officials have tried to get the person to speak, he evidently has
the other should raise any issue under the Fifth Amendment.                     a duty to incriminate himself, because the reporting of crime is
For in determining whether the privilege is applicable, the                     a civic duty and the Fifth Amendment is not applicable since the
question is whether petitioner was in a position to have his                    decision to speak or remain silent is, at that time, “voluntary.”
testimony compelled and then asserted his privilege, not                             But the prohibition against compelled self-incrimination is
                                                                                another way of expressing the right not to incriminate oneself.
simply whether he was silent.” Id. at 243-44 (footnote                          After all, the only means of compelling a person to incriminate
omitted).                                                                       himself is to penalize him if he does not. Of course the
                                                                                voluntary decision to remain silent in the absence of any official
  Even assuming that the Fifth Amendment is inapplicable to                     compulsion does not “raise any issue under the Fifth
precustody contexts,9 the privilege would still be applicable                   Amendment,” since there has been no self-incrimination at all.
                                                                                A voluntary decision to speak also does not implicate the Fifth
                                                                                Amendment because the self-incrimination was not compelled.
     9                                                                          But to impose a duty to report one’s own crime before an official
      We stress that we do not believe that the Fifth Amendment comes           accusation has been made would itself be to compel self-
into play only when a defendant is taken into custody, for it would             incrimination, thus bringing the Fifth Amendment into play.
eviscerate the privilege to say that, although a defendant’s post-custody       And, as Griffin v. California makes plain, the Constitution also
silence may not be used as substantive evidence against him, a                  prohibits the government from burdening the right not to
defendant’s precustody silence may. As Justice Marshall explained in his        incriminate oneself by penalizing silence. In the present case the
Jenkins dissent:                                                                violation of the Fifth Amendment occurred not when the
         I confess I find MR. JUSTICE STEVENS’ view of the Fifth                defendant remained silent, but when that silence was later used
     Amendment incomprehensible. Apparently, under that view, a                 against him at his criminal trial.
     person’s right not to incriminate himself exists only if the           Jenkins, 447 U.S. at 250 n.4 (Marshall, J., dissenting) (citations omitted).
