       RECOMMENDED FOR FULL-TEXT PUBLICATION
            Pursuant to Sixth Circuit Rule 206            2    Hicks v. Collins                             No. 01-3764
    ELECTRONIC CITATION: 2004 FED App. 0315P (6th Cir.)
                File Name: 04a0315p.06                    PATTERSON & TUCKER, Cincinnati, Ohio, for Appellant.
                                                          Charles L. Wille, ATTORNEY GENERAL’S OFFICE OF
                                                          OHIO, CAPITAL CRIMES SECTION, Columbus, Ohio, for
UNITED STATES COURT OF APPEALS                            Appellee.
              FOR THE SIXTH CIRCUIT                          SILER, J., delivered the opinion of the court, in which
                _________________                         DAUGHTREY, J., joined. CLAY, J. (pp. 30-43), delivered
                                                          a separate opinion concurring in part and dissenting in part.
 JOHN R. HICKS,                X
         Petitioner-Appellant, -                                              _________________
                                -
                                -      No. 01-3764                                OPINION
           v.                   -                                             _________________
                                 >
                                ,                           SILER, Circuit Judge. Petitioner John R. Hicks was
 TERRY COLLINS, Warden,         -                         convicted after a trial by jury of two counts of aggravated
         Respondent-Appellee. N                           murder, Ohio Revised Code (O.R.C.) § 2903.01(B), and one
                                                          count of aggravated robbery, O.R.C. § 2911.01. He was
      Appeal from the United States District Court        sentenced to death. O.R.C. §§ 2929.04(A)(3), (A)(5), and
     for the Southern District of Ohio at Cincinnati.     (A)(7). After unsuccessful direct appeals and state post-
    No. 94-00177—Herman J. Weber, District Judge.         conviction proceedings, Hicks filed a petition for a writ of
                                                          habeas corpus in accordance with 28 U.S.C. § 2254. The
                 Argued: March 9, 2004                    district court denied the petition and he appeals to this court.
                                                          For the following reasons, we AFFIRM.
        Decided and Filed: September 15, 2004
                                                                              I. BACKGROUND
   Before: SILER, DAUGHTREY, and CLAY, Circuit
                     Judges.                                On August 2, 1985, Hicks acquired some cocaine in
                                                          Cincinnati, Ohio. After ingesting the drug, he desired more
                  _________________                       and took the videocassette recorder (VCR) from the home he
                                                          shared with his wife, Ghitana, and stepdaughter, Brandy
                       COUNSEL                            Green. Hicks gave the VCR to a drug trafficker as security
                                                          for a cocaine purchase. After consuming the cocaine, Hicks
ARGUED: Marc D. Mezibov, MEZIBOV & JENKINS,               realized he had no money with which to redeem the VCR.
Cincinnati, Ohio, for Appellant.     Charles L. Wille,    Recognizing that the missing VCR would lead to problems
ATTORNEY GENERAL’S OFFICE OF OHIO, CAPITAL                with Ghitana, he decided to rob Maxine Armstrong, who was
CRIMES SECTION, Columbus, Ohio, for Appellee.             Ghitana’s mother and his mother-in-law. He knew that “if
ON BRIEF: Marc D. Mezibov, MEZIBOV & JENKINS,             [he] robbed her he would have to kill her.” State v. Hicks,
Cincinnati, Ohio, Jarrod M. Mohler, ROBBINS, KELLY,       538 N.E.2d 1030, 1032 (Ohio 1989). Hicks went to

                            1
No. 01-3764                             Hicks v. Collins      3    4    Hicks v. Collins                            No. 01-3764

Armstrong’s apartment, where he found Brandy asleep on the         relationship of the expert’s expected testimony . . . and the
couch. He woke her, put her to bed, and prepared to kill           cost of said expert.”
Armstrong, telling himself, “you go do it or you don’t.” Id.
at 1033.                                                              The guilt phase of Hicks’s trial began on February 3, 1986.
                                                                   Hicks did not present any evidence on his insanity defense
  Hicks killed Armstrong by strangling her with a clothes line     and subsequently withdrew his insanity plea. On February
he had brought with him. He stole approximately $300 and           12, 1986, the jury found Hicks guilty on all counts. The
some credit cards from her apartment. He then retrieved the        sentencing phase of his trial began on February 13, 1986, and
VCR from the drug dealer and purchased more cocaine.               Hicks presented mitigating evidence and made an unsworn
Around 12:30 a.m. on August 3, after injecting the cocaine,        statement. On February 14, 1986, the jury recommended
he “got to thinking again” and realized that Brandy could          death for the murder of Brandy Green and life imprisonment
identify him as the last person to visit Armstrong. Therefore,     for the murder of Maxine Armstrong. Based upon its
he decided to return to the apartment to kill Brandy.              independent review of the evidence, the trial court sentenced
                                                                   Hicks to death for Green’s murder, thirty-years’
  Upon returning to Armstrong’s apartment he tried to              imprisonment for Armstrong’s murder, and ten to twenty-
smother Brandy with a pillow. As Brandy was “bucking” and          five-years’ imprisonment for aggravated robbery.
“fighting,” he tried to choke her with his hands. When she
continued to make breathing sounds, he affixed duct tape over        Hicks appealed to the Ohio Court of Appeals and asserted
her nose and mouth. After killing Brandy, Hicks moved              nine assignments of error. In 1988, the appellate court
Armstrong’s body into the bathtub so that he could                 affirmed his convictions. He appealed to the Supreme Court
dismember it for easier disposal. After nearly severing one of     of Ohio, asserting ten assignments of error. It rejected his
her legs with a kitchen knife, however, he gave up and             arguments and affirmed his sentences. Hicks’s subsequent
returned to the bedroom where Brandy’s body was located.           motion for rehearing was denied by the Ohio Supreme Court
He removed her underwear and digitally penetrated her              in 1989. He then filed a petition for writ of certiorari in the
vagina. He then stole other items from the apartment,              United States Supreme Court, but it was also denied.
returned to his own apartment, and fled Cincinnati. On
August 4, he surrendered to police in Knoxville, Tennessee,          In 1990, pursuant to O.R.C. § 2953.21, Hicks filed a
where he confessed to both murders. Hicks was returned to          petition for post-conviction relief in the Hamilton County
Cincinnati and made additional incriminating statements to         Court of Common Pleas, raising forty-one issues for review.
Cincinnati homicide detectives Robert Hennekes and Joe             The trial court denied his motion for relief from judgment.
Hoffman.                                                           Hicks appealed to the court of appeals, raising twelve
                                                                   assignments of error. In 1993, the appellate court affirmed
  After Hicks was indicted, he filed a suggestion of               the decision of the trial court.        Hicks then sought
incompetence to stand trial. The trial court conducted             discretionary review before the Ohio Supreme Court, which
evidentiary hearings and found him competent to stand trial.       dismissed his appeal on July 21, 1993, for lack of a
While the trial court denied the majority of Hicks’s pre-trial     substantial constitutional question.
motions, it deferred ruling on his motion for funding to hire
experts until he could “provide more specific information as         In the interim, Hicks filed an application for delayed
to the identity and qualification of said expert or experts, the   consideration in the Ohio appellate court in September 1992,
No. 01-3764                             Hicks v. Collins      5    6       Hicks v. Collins                                    No. 01-3764

submitting thirty-seven assignments of error.            On        pursuant to an independent and adequate state procedural rule,
December 1, 1992, the appellate court denied his application       federal habeas review of the claims is barred unless the
and he appealed to the Ohio Supreme Court. On October 27,          prisoner can demonstrate cause for the default and actual
1993, the Ohio Supreme Court affirmed. On December 15,             prejudice as a result of the alleged violation of federal law.”1
1993, the Ohio Supreme Court denied his motion for                 Monzo v. Edwards, 281 F.3d 568, 575 (6th Cir. 2002)
rehearing. On March 5, 1993, Hicks filed a motion for              (citations omitted). In determining whether a claim has been
reinstatement of direct appeal in the Ohio Supreme Court,          procedurally defaulted, this court has applied the following
which in turn denied his request.                                  four-part test: (1) the court must determine that there is a
                                                                   state procedural rule with which the petitioner failed to
  In 1994, Hicks filed a petition for a writ of habeas corpus      comply; (2) the court must determine whether the state courts
with the United States District Court for the Southern District    actually enforced that state procedural rule; (3) the state
of Ohio. An evidentiary hearing was held in 1997. In April         procedural rule must have been an adequate and independent
2001, the district court entered its thorough 171-page order       state procedural ground upon which the state could rely to
denying Hicks’s petition. However, it issued a certificate of      foreclose review of a federal constitutional claim; and (4) if
appealability (“COA”) on the issues of ineffective assistance      the court has determined that a state procedural rule was not
of counsel during the guilt and penalty phases and                 complied with and that the rule was an adequate and
prosecutorial misconduct. We granted Hicks’s request for a         independent state ground, then the petitioner must
COA on the additional issue of ineffective assistance of           demonstrate that there was cause for his failure to follow the
appellate counsel.                                                 rule and that actual prejudice resulted from the alleged
                                                                   constitutional error. Maupin v. Smith, 785 F.2d 135, 138 (6th
              II. STANDARD OF REVIEW                               Cir.1986).
A. Pre-AEDPA                                                         In Ohio, res judicata bars state courts from considering
                                                                   constitutional claims in post-conviction collateral attacks
   Hicks filed his habeas petition before the effective date of    (brought under Ohio Rev. Code Ann. § 2953.21) when those
the Antiterrorism and Effective Death Penalty Act (AEDPA).         claims have already been or could have been fully litigated on
“Under pre-AEDPA analysis, ‘this court reviews a district          direct appeal. Monzo, 281 F.3d at 576. Res judicata also bars
court’s refusal to grant a writ of habeas corpus de novo, but      ineffective assistance of trial counsel claims, not asserted on
reviews the district court’s factual findings for clear error.’”   direct appeal, when the defendant is represented by a different
Zuern v. Tate, 336 F.3d 478, 481 (6th Cir. 2003) (quoting Coe      counsel on direct appeal. Id. at 576-77. However, if the
v. Bell, 209 F.3d 812, 823 n.2 (6th Cir. 2000)).                   defendant was represented by the same counsel at trial and on
                                                                   direct appeal, claims of ineffective assistance of trial counsel
B. Procedural Default
  Hicks has procedurally defaulted every claim except the
ineffective assistance of trial counsel claims and one                 1
                                                                         Hicks does not assert actual innocence and thus does not claim the
prosecutorial misconduct claim regarding an appeal to the          other excuse - a man ifest miscarriage o f justice. See M urray v. C arrier,
jury to act as the community’s conscience. When “a state           477 U.S. 478, 496 (1986) (court may grant writ in the absence of a
prisoner has defaulted his federal claims in state court           showing of cause and preju dice w hen “a constitutional violatio n has
                                                                   probably resulted in the conviction of one who is actually innocent”).
No. 01-3764                             Hicks v. Collins     7    8     Hicks v. Collins                             No. 01-3764

are not defaulted because appellate counsel will rarely assert    application because Hicks failed to show good cause to justify
his own ineffectiveness at trial. See Buell v. Mitchell, 274      his delay, i.e., Hicks filed his reconsideration application too
F.3d 337, 348 n.3 (6th Cir. 2001).                                late.
  Hicks had the same counsel on direct appeal, so his               As a result, the Murnahan rule requiring ineffective
ineffective trial counsel claims are cognizable; however, he      appellate counsel claims to be filed in reconsideration
has procedurally defaulted his other claims regarding             applications rather than post-conviction petitions stands as an
ineffective appellate counsel and prosecutorial misconduct        independent state ground barring this court from considering
(other than the jury-as-community-conscience claim) because       Hicks’s claim. Hicks asserts the same defense we rejected in
he did not assert the claims on direct appeal. Seeking to         Coleman, namely, that the Ohio courts were split on the
excuse this default, Hicks naturally argues ineffective           correct procedure before Murnahan. However, as in
assistance of appellate counsel for failing to raise the          Coleman, since the rule was well settled in the court of
defaulted claims on direct appeal. Unfortunately for Hicks,       appeals where Hicks appealed that ineffective appellate
he has procedurally defaulted his ineffective appellate counsel   counsel claims should be asserted in reconsideration
claims as well. While defendants may assert ineffective           applications, the rule represents an established adequate and
assistance of counsel as cause to excuse procedural default,      independent state ground. Coleman, 244 F.3d at 539-40.
the ineffective assistance excuse “can itself be procedurally     Thus, Hicks has procedurally defaulted his ineffective
defaulted.” Edwards v. Carpenter, 529 U.S. 446, 453 (2000);       appellate counsel claim and, in turn, all the claims he failed to
Monzo, 281 F.3d at 575-578. A strikingly on-point case,           bring on direct appeal because he cannot assert it as cause.
Coleman v. Mitchell, 244 F.3d 533 (6th Cir. 2001), shows that
Hicks has procedurally defaulted his ineffective appellate          In sum, all of Hicks’s claims not directly asserted on appeal
counsel claim and, as a result, defaulted all other claims upon   are procedurally defaulted because he procedurally defaulted
which he asserts ineffective appellate counsel as cause.          his ineffective assistance of appellate counsel claim and
                                                                  cannot assert it as cause. The exception exists for all claims
  In Ohio, pursuant to State v. Murnahan, 584 N.E.2d 1204         of ineffective trial counsel because the same counsel served
(Ohio 1992), ineffective assistance of appellate counsel          as trial and appellate counsel.
claims must be raised in a delayed motion for reconsideration
to the direct appeal court, not in a petition for state post-                              DISCUSSION
conviction relief. Coleman, 244 F.3d at 539. In April 1991,
Hicks incorrectly asserted his ineffective appellate counsel      A. Ineffective Assistance of Trial Counsel
claim in his petition for post-conviction relief, and the post-
conviction court dismissed the claim pursuant to the appellate        1. Cocaine Expert
court’s rule that ineffective appellate claims should be
asserted in reconsideration motions. The Ohio Supreme               Hicks first alleges that he was denied the effective
Court subsequently adopted that rule in Murnahan in               assistance of counsel during the guilt phase of his trial
February 1992. Hicks waited seven months after Murnahan           because his counsel failed to consult with or obtain an expert
(September 1992) to file a delayed reconsideration application    on the effects of cocaine on the human body. Prior to trial,
– the correct motion for an ineffective appellate counsel         Hicks’s counsel, Dominic Perrino and James Rueger, filed a
claim. The Ohio Court of Appeals denied the reconsideration       notice of intent to rely on the defense of not guilty by reason
No. 01-3764                                     Hicks v. Collins          9    10    Hicks v. Collins                             No. 01-3764

of insanity. Hicks had not been evaluated prior to the filing                  does not meet the definition of “disease or defect”; Hicks
of this notice and none of the three experts who subsequently                  understood his actions; the duration of cocaine intoxication
evaluated him concluded that he was insane on the date of the                  peaks at about fifteen to twenty minutes; and injection of
murders. As Hicks’s counsel realized during pretrial                           cocaine, rather than inhalation, leads to a quicker reaction,
investigation that his cocaine ingestion could affect the guilt                although “the intensity or symptoms are equally the same”
and penalty phases of his trial, they applied for the                          whether injecting or inhaling it. Dr. Schmidtgoessling’s
appointment of an expert witness pursuant to O.R.C.                            testimony was damaging to Hicks’s case because it
§ 2929.024.2 Hicks’s counsel anticipated the need for an                       significantly narrowed the time in which he could have been
expert on the pharmacological, physiological, and psychiatric                  acting under the influence of cocaine. Because Hicks’s
effects of cocaine, specifically as it related to his ability to               counsel were surprised by Dr. Schmidtgoessling’s testimony
form intent to commit aggravated murder and any diminished                     and “as to the affect that she testified as her qualifications as
mental capacity for mitigation purposes. The trial court                       to what cocaine affect has on a person, how long lasting it
advised Hicks’s counsel that if they came forward with such                    was,” they attempted to use Dr. Ross Zumwalt, the Hamilton
an expert witness the request would probably be granted. The                   County Coroner, as a “cocaine expert” during cross-
trial court deferred ruling on Hicks’s motion, specifically                    examination. Dr. Zumwalt’s testimony did not benefit Hicks.
“taking it under submission pending further evidence, further                  The district court denied Hicks’s habeas relief on his claim of
argument from defense counsel.” Nevertheless, Hicks’s                          ineffective assistance of trial counsel because he feigned
counsel neither renewed the motion to appoint an expert nor                    mental illness and refused to cooperate with his counsel,
obtained an expert, instead relying upon the testimony of Dr.                  concluding that Hicks’s “failure to cooperate had an adverse
Nancy Schmidtgoessling, a court-appointed psychologist.                        impact on the ability of his defense counsel to conduct his
                                                                               defense and that the decision to use Dr. Schmidtgoessling as
   Dr. Schmidtgoessling’s testimony on Hicks’s behalf was                      a defense expert was a tactical decision by counsel and
less than favorable. Although Dr. Schmidtgoessling did not                     appropriate under the circumstances.”
hold herself out as a “cocaine expert,” she had been directed
to evaluate Hicks regarding his competency and to determine                       For Hicks to establish a violation of the Sixth Amendment
if he was insane on the date of the crimes. While she testified                right to counsel, he must satisfy two components. First, he
that Hicks’s criminal actions were consistent with cocaine                     must show that his counsel’s performance was deficient,
intoxication and that he was probably impaired, she                            which “requires showing that counsel made errors so serious
nonetheless opined that he acted with purpose and intent.                      that counsel was not functioning as the counsel guaranteed
According to Hicks, Dr. Schmidtgoessling inaccurately                          [him] by the Sixth Amendment.” Wickline v. Mitchell, 319
testified as to the following: voluntary cocaine intoxication                  F.3d 813, 819 (6th Cir. 2003) (quoting Strickland v.
                                                                               Washington, 466 U.S. 668, 687 (1984)). Second, he “must
                                                                               show that the deficient performance prejudiced the defense[,]
    2
      O.R.C. § 2929.024 provides that if an indigent defendant is charged      . . . [which] requires showing that counsel’s errors were so
with aggravated murder, the court in its discretion may authorize defense      serious as to deprive [him] of a fair trial, a trial whose result
counsel to ob tain an expert if necessary for the proper presentation of the   is reliable.” Id. (quoting Strickland, 466 U.S. at 687). “To
defendant’s trial or sentencing hearing. The payment for the expert’s fees     demonstrate that counsel’s performance was deficient,
and expe nses are to be made in the same mann er that payment for              [Hicks] ‘must show that counsel’s representation fell below
appointed counsel is made pursuant to Chapter 120 of the Ohio Revised
Code.                                                                          an objective standard of reasonableness.’” Roberts v. Carter,
No. 01-3764                                   Hicks v. Collins       11    12       Hicks v. Collins                                 No. 01-3764

337 F.3d 609, 614 (6th Cir. 2003) (quoting Strickland, 466                 to testify as to the effects of cocaine and the duration it
U.S. at 688). To demonstrate prejudice, he “must show that                 would” have upon a person. Dr. Schmidtgoessling conceded
there is a reasonable probability that, but for counsel’s                  that, to the best of her recollection, she did not expect to
unprofessional errors, the result of the proceeding would have             render an opinion on anything other than Hicks’s competency
been different.” Wickline, 319 F.3d at 819 (quoting                        and insanity.
Strickland, 466 U.S. at 694). Our “[r]eview of counsel’s
performance is highly deferential and requires that [we]                      “In Ohio, evidence of voluntary intoxication ‘may be
‘indulge a strong presumption that counsel’s conduct falls                 considered in determining whether an act was done
within the wide range of reasonable professional assistance.’”             intentionally or with deliberation and premeditation.’”
Id. (quoting Strickland, 466 U.S. at 689). “Both the                       Combs, 205 F.3d at 288 (quoting Ohio v. Fox, 428 N.E.2d
performance and prejudice components of the ineffectiveness                410, 412 (Ohio 1981)); see also State v. Wolons, 541 N.E.2d
inquiry are mixed questions of law and fact entitled to de                 443, 446 (Ohio 1989).4 In Combs, this Court was presented
novo review.” Combs v. Coyle, 205 F.3d 269, 278 (6th Cir.                  with a similar claim of ineffective assistance of counsel.
2000).                                                                     Combs’s counsel employed one expert witness, Dr. Roger
                                                                           Fisher, a clinical psychologist, to testify as to Combs’s drug
   On habeas review at the evidentiary hearing before the                  and alcohol abuse and his intoxication on the day he
district court, Hicks offered the testimony of Dr. Theodore                committed two aggravated murders. Although Combs’s
Parran, an expert on the effects of cocaine use.3 Dr. Parran               counsel intended to elicit testimony that Combs was incapable
observed that Hicks suffered from cocaine psychosis, which                 of acting with purpose or intent due to his diminished
is an extreme psychotic state brought about by frequent                    capacity, Dr. Fisher opined during cross-examination that
cocaine binging, at the time of the crimes. According to Dr.               Combs acted purposefully and intentionally even though he
Parran, Dr. Schmidtgoessling’s testimony was erroneous and                 was intoxicated. Identically, Hicks claims that his counsel’s
the jury was misinformed as to Hicks’s condition. In fact, he              failure to anticipate, avoid, or prepare for Dr.
viewed her testimony as the “primary information which was                 Schmidtgoessling’s damaging testimony constituted
inaccurate[.]” Rueger testified at the evidentiary hearing that            ineffective assistance of counsel. Moreover, as in Combs, the
the defense’s decision not to employ a “cocaine expert” was                prosecution highlighted the inconsistencies between the
not the result of any tactical decision; rather, it was a matter           defense’s theory of voluntary cocaine intoxication and Dr.
of economics because he did not believe the trial court “was               Schmidtgoessling’s testimony during its closing argument.
going to appoint anybody that wasn’t from around [the                      The district court, however, differentiated Combs from
Cincinnati] area.” In his deposition, Perrino testified that he            Hicks’s claim “because Dr. Parran could not have testified
was “somewhat taken aback and surprised” by Dr.                            that [] Hicks’s use of cocaine negated his ability to act
Schmidtgoessling’s testimony regarding the duration of the                 purposely, his input would not have altered the results of the
cocaine’s influence on Hicks and that he “was unaware prior                trial and defense counsel would have been subjected to the
to trial as to the duration[] because we did not have a witness            same criticism which carried the day in Combs . . . .”


    3                                                                           4
     Hicks claims Parran to be a “cocaine expe rt” because he allegedly           As of October 27, 2000, however, “[v]oluntary intoxication may not
“devotes approximately 70% of his time to the treatm ent of ind ividuals   be taken into consideration in determining the existence of a mental state
who are ad dicted to cocaine and o ther illegal substances.”               that is an element of a criminal offense.” O.R.C. § 2901.21(C).
No. 01-3764                               Hicks v. Collins      13    14   Hicks v. Collins                             No. 01-3764

  Despite any similarity to Combs, Hicks was not denied the              Third, and most importantly, even if the jury had been
effective assistance of counsel.           First, there was           informed of cocaine psychosis and its effects, the result of the
overwhelming evidence of Hicks’s guilt; therefore, he cannot          proceeding would not have been different. Like Dr.
demonstrate “that there is a reasonable probability that, but         Schmidtgoessling, Dr. Parran testified that Hicks’s actions
for counsel’s errors, the factfinder would have had a                 were purposeful and that “certainly people can do purposeful
reasonable doubt about his guilt.” Id. at 290 (citing                 actions when they’re involved in cocaine psychosis.”
Strickland, 466 U.S. at 695). Accordingly, Hicks failed to            Additionally, Dr. Parran could not testify that Hicks was
satisfy the prejudice prong of Strickland.                            insane at the time he committed the offenses. The decision to
                                                                      employ Dr. Schmidtgoessling was a direct result of Hicks’s
   Second, the record indicates that Hicks was a malingerer           refusal to cooperate with his counsel. See Coleman, 244 at
who refused to assist his counsel in the preparation of his           545 (death penalty petitioner was not subjected to ineffective
defense. For example, prior to trial Perrino informed the trial       assistance of counsel where he did not cooperate with his
court that defense counsel needed a “cocaine expert” because          counsel concerning the investigation and identification of
they did “not have assistance from our client except that we          mitigating evidence, imposed restrictions upon his counsel,
know from certain things that he indicated in statements that         and refused to submit to further psychological or psychiatric
were given to us to the ingestion of cocaine and what its             testing). A fair assessment of counsel’s performance requires
effect may have on him.” Furthermore, although Rueger                 that we “evaluate [their] conduct from counsel’s perspective
observed that Hicks was “fully communicative” during their            at the time.” Combs, 205 F.3d at 278 (quoting Strickland,
first meeting, Hicks later “went into a shell, . . . wouldn’t talk,   466 U.S. at 690).
wouldn’t look at you, just stared off in the distance and kind
of rocked back and forth.” Rueger also insisted that Hicks’s            2. Prejudicial Comments
lack of cooperation and participation in his own defense
adversely affected his counsel’s preparation of the case.                Hick next claims that his counsel was ineffective for failing
Rueger cited a specific instance in which he and Perrino              to object to (1) “the prosecution’s statements that the
“couldn’t even communicate or ask [Hicks] whether or not              community and state of Ohio mandate the death penalty”
the notes that the Police Officers in Cincinnati had taken . . .      against him; (2) the prosecution’s representations that “they
were consistent with what he remembered talking to them               had already determined that Hicks was guilty, and that death
about.” Dr. James Reardon, a counseling psychologist who              was the only appropriate punishment”; (3) statements made
testified during the evidentiary hearing on behalf of Warden          by both the trial court and prosecution during voir dire that
Collins, insisted that “Dr. Schmidtgoessling was prevented            the jury’s decision on the question of life or death was merely
from administering and interpreting any psychological tests”          a “recommendation”; and (4) the prosecution’s “incorrect and
upon Hicks due to his feigning mental illness; Dr.                    misleading statements about the legitimacy of the defense of
Schmidtgoessling could not obtain “any kind of coherent               not guilty by reason of insanity.” Hicks’s objections on these
history or representation of the circumstances and facts of the       points are without merit. In each instance, Hicks either
case based on [] Hicks’s behavior”; and by reason of Hicks’s          mischaracterizes the objectionable statement, cites a statement
behavior and lack of cooperation, his counsel were unable to
have any psychological tests performed upon him, “which
may have contributed to their ability to assess him in a more
complete way.”
No. 01-3764                                     Hicks v. Collins        15     16   Hicks v. Collins                             No. 01-3764

to which a proper objection was lodged,5 or objects to a                       faulty record-keeping prejudiced him – he does not explain
statement that was not improper.6                                              how the proceedings would have been different. The second
                                                                               claim is without merit because counsel’s depiction of his
   A second subset of Hicks’s “failure to object” claims                       client’s crimes as “dastardly” and “heinous” may well have
centers on the prosecution’s closing argument. Specifically,                   been a tactical decision designed to encourage the jury to
Hicks argues that his counsel was ineffective for failing to                   spare Hicks’s life by convincing it that he recognized the
object to (1) the prosecution’s comments about the penalty                     brutality of his crimes. The wisdom of using such adjectives
phase; (2) victim impact statements; (3) the prosecution’s                     is certainly subject to challenge in hindsight, but it is
expression of its opinion respecting Hicks’s guilt and the                     precisely this sort of hindsight-driven judgment that
statement that “[t]here is no doubt in the defense’s mind that                 Strickland forbids.
the defendant was guilty”; and (4) the prosecution’s statement
that even the trial court did not believe Hicks’s defenses. A                    3. Mitigation
review of the record reveals that these objections are wholly
groundless, with the exception of the prosecution’s comment                      Hicks further claims that his trial counsel was ineffective in
about the defense’s state of mind. On its face, this comment                   failing to introduce evidence of his abusive upbringing,
is inappropriate. A review of the context in which it was                      problems in school, poor self-esteem, and history of drug and
made, however, illustrates that it was harmless. The comment                   alcohol abuse in mitigation. Arguably his most compelling
was made in the course of the prosecution’s explanation that                   contention is that counsel should have, at a minimum, called
not even the defendant contested that he was the one who had                   some sort of expert witness instead of relying on the
murdered the victims. Therefore, the statement was hardly                      testimony of his mother and six former co-workers, who
prejudicial.                                                                   generally testified that Hicks was a “good guy” and that his
                                                                               crimes were out of character. At the evidentiary hearing
  Hicks also asserts two other claims of ineffective assistance                before the district court, Dr. Susan Shorr, a mitigation
during the guilt phase. First, he argues that counsel was                      specialist, and Dr. Julia Hawgood, a clinical psychologist,
ineffective for failure to preserve records of side-bar                        opined that this failure to call a psychiatric or psychological
conferences. Second, Hicks argues that his counsel was                         expert rendered counsel’s mitigation efforts ineffective.
ineffective because they repeatedly referred to his crimes as
“dastardly” and “heinous.” The first claim is without merit                       Under the Strickland standard, however, Hicks’s counsel
because Hicks makes no attempt to show how the allegedly-                      was not constitutionally ineffective in mitigation. This is so
                                                                               because, as the district court found, “Mr. Hicks did not assist
                                                                               his counsel because he was feigning the symptoms of mental
    5                                                                          illness.” It is significant that Dr. Shorr, who testified at the
      For exam ple, H icks objected to the prosecution’s reference to the
jury’s penalty determination as a “recommend ation” and moved for a
                                                                               evidentiary hearing that counsel’s mitigation strategy was
mistrial. The trial court sustained the objection but denied the mistrial      substandard, “did not consider, in making her opinion, the
motio n.                                                                       fact that Mr. Hicks refused to cooperate with his counsel.”
                                                                               Similarly, Dr. Hawgood, whose testimony was to the same
    6
      Examples of such statements are the prosecution’s voir dire              effect, conceded that “Mr. Hicks admitted [to her, in the
questions regarding the validity of the insanity and intoxication d efenses.   course of her evaluation of him] that prior to and during his
The statements were not improper, particularly considering that there was
evide nce that Hicks had feigned insanity and was malingering.
No. 01-3764                                      Hicks v. Collins         17     18   Hicks v. Collins                            No. 01-3764

trial he had feigned mental illness.”7 This singular fact – that                 admitted or she had testified, the jury would have learned this
Hicks did little to participate in his own defense because he                    information. In all likelihood, this fact would have been
was faking a mental illness – distinguishes this case from                       unfavorable to Hicks. Furthermore, while Hicks was
those Hicks relies upon and effectively forecloses a finding                     molested by a juvenile when he was a child, Hicks molested
that counsel was ineffective.                                                    Brandy, postmortem, when he was an adult. Therefore,
                                                                                 defense counsel made a tactical decision to keep this
   Hicks further argues that his counsel was ineffective in                      potentially-damaging information from the jury.
failing to present his history of sexual abuse to the jury. He
alleges that his counsel “entirely overlooked the detailed                          We “reject[] [Hicks’s] claim that the failure of his counsel
information concerning [his] background that Shirley Leahy                       to investigate mitigating evidence amounted to ineffective
had compiled for the court psychiatric clinic.”8 Leahy                           assistance because [Hicks was] uncooperative . . . .” Martin
compiled a detailed report concerning Hick’s background                          v. Mitchell, 280 F.3d 594, 612 (6th Cir. 2002) (citing
which, although her report was available to Hicks’s counsel                      Coleman, 244 F.3d at 545-46). There is an “extremely high
for mitigation purposes, was never used. Hicks also claims                       standard that must be met for counsel’s representation in the
that while many of his relatives were prepared to testify                        penalty phase to be considered constitutionally inadequate[,]”
during the mitigation phase of his trial, none was called to do                  Mason v. Mitchell, 320 F.3d 604, 643 (6th Cir. 2003) (Boggs,
so.                                                                              J., dissenting), and Hicks has fallen short of that standard.
  Despite Hicks’s contentions, his counsel was not                                 4. Penalty Phase
ineffective.     Hicks was uncooperative and never
communicated any history of sexual abuse to his counsel.                           The overwhelmingly majority of Hicks’s panoply of
Although Perrino reviewed Leahy’s report, defense counsel’s                      penalty phase ineffective assistance claims relate to counsel’s
failure to introduce the report or call Leahy as a witness was                   perceived ineffectiveness in failing to object to certain
probably a tactical decision. For instance, in the “Sexual                       comments made by the prosecution during closing arguments.
History” section of Leahy’s report, she documented that                          Generally, these claims are without merit and, dependent as
Hicks was molested by a fourteen-year-old male cousin when                       they are on the merits of the underlying prosecutorial
he was eight years old. In addition, Hicks confided in Leahy                     misconduct claims, are addressed elsewhere.
that he engaged in homosexual prostitution as a teenager and
after he married his first wife. If Leahy’s report had been                        Perhaps Hicks’s strongest claim in this regard is that his
                                                                                 counsel was ineffective for failing to object to the
                                                                                 prosecution’s mention of his likelihood of recidivism. Stated
    7                                                                            the prosecutor: “I think that is one of the primary
      This conc ession is particularly damaging to H icks’s spe cific            considerations you should make. In twenty or thirty years
contention that counsel was ineffective for failing to call a psychologist
or other expert during the mitigation phase because, had counsel in fact         what happens if [Hicks] does this again?” Even this claim
called such an expert, the prosecutio n could have introd uced this              ultimately fails – assuming that such a comment is
concession in rebuttal. As it was, the jury was not privy to this damning
information.

    8
       Shirley Leahy, a clinical social worker who interviewed Hicks prior
to trial, aided Dr. Schmidtgoessling in constructing H icks’s soc ial history.
No. 01-3764                                     Hicks v. Collins       19     20   Hicks v. Collins                            No. 01-3764

inappropriate,9 it certainly does not rise to the level of                    misconduct must have “so infected the trial with unfairness as
prosecutorial misconduct. As the evidence against Hicks was                   to make the resulting conviction a denial of due process.” Id.
more than substantial, see Bowling v. Parker, 344 F.3d 487,                   (quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)).
512-13 (6th Cir. 2003), and Hicks’s counsel objected to this                  Even if the prosecution’s conduct was improper or even
statement, Hicks received the effective assistance of counsel.                “universally condemned,” id., this court can only reverse if
                                                                              the statements were so flagrant as to render the entire trial
   Hicks also advances two claims arising from the acts of his                fundamentally unfair. If this court finds a statement
own counsel. First, Hicks finds fault with one of his                         improper, four factors are considered in determining whether
attorney’s statements to the jury regarding Hicks’s parole                    the impropriety is flagrant: “(1) the likelihood that the
eligibility. Second, Hicks objects to counsel’s statement in                  remarks would mislead the jury or prejudice the accused,
closing that “there is a special hell in Dante for those                      (2) whether the remarks were isolated or extensive,
righteous people that have to mete out justice.” Both claims,                 (3) whether the remarks were deliberately or accidentally
however, are without merit. As to the former, it is difficult to              presented to the jury, and (4) whether other evidence against
perceive how counsel’s statement that Hicks would not be                      the defendant was substantial.” Bowling, 344 F.3d at 512-13.
eligible for parole until he was at least eighty years old
prejudiced him in any way. At a minimum, such a statement                       Hicks complains that the State’s closing argument
can be said to fall with the ambit of Strickland’s “tactical                  improperly urged the jury to act as the community’s
decisions,” which are “virtually unchallengeable.” As to the                  conscience. Particularly, he cites the prosecution’s statements
second objection, Hicks’s counsel was simply responding to                    that “it is time you sent a message to the community” and
earlier Biblical references made by the prosecution. Such                     “the people in the community have the right to expect that
assistance may not be said to be “ineffective.”                               you will do your duty.” These statements were arguably
                                                                              proper general references to the societal need to punish guilty
  5. Ineffective Assistance of Appellate Counsel                              people, rather than an improper “attempt to compare or to
                                                                              associate the defendant with a feared and highly publicized
  For reasons previously addressed, Hicks’s claim of                          group . . . .” Id. at 516-517.
ineffective assistance of appellate counsel is procedurally
defaulted.                                                                       Contrary to the prosecutor’s statements in United States v.
                                                                              Solivan, 937 F.2d 1146, 1151 (6th Cir. 1991), the
B. Prosecutorial Misconduct                                                   “community conscience” statements at issue here were not
                                                                              “calculated to incite the passions and prejudices of the jurors
  On habeas review, this court reviews claims of                              . . . .” In Solivan, the prosecutor’s statements regarding the
prosecutorial misconduct deferentially. Darden v.                             societal need to punish drug traffickers, such as defendant,
Wainwright, 477 U.S. 168, 181 (1986). To be cognizable, the                   was so gross as to probably prejudice her. The Solivan Court
                                                                              repeatedly referred to the “War on Drugs,” which was a
                                                                              popular topic in this country at the time of defendant’s trial.
    9
      The case law, albeit scant, suggests that such commentary may be        See id. at 1153-57 (“The statements were deliberately injected
acceptable. See., e.g., An drew s v. De land , 943 F.2d 1162 (10 th Cir.      into the proceedings to inflame the jurors’ emotions and fears
1991), overruled in different p art by Da niels v. U nited States, 254 F.3d   associated with the current drug epidemic that is reported
1180 (10th Cir. 2001 ); And rews v. Barnes, 743 F. Supp. 1496 (D. Utah
199 0).
                                                                              daily in our newspapers and which threatens the very fabric
No. 01-3764                             Hicks v. Collins     21    22   Hicks v. Collins                             No. 01-3764

of our society.”). Conversely, in the instant appeal and as just   guilt phase of Hicks’s trial, Officer Hennekes testified on
indicated, the prosecutor’s statements only referred to “the       cross-examination that during an interview between him,
general community need to convict guilty people.” Id. at           Officer Hoffman, and Hicks, he asked what Hicks thought
1155. More importantly, such statements “were devoid of the        would happen as a result of the murders. Hicks allegedly
sort of inflammatory content inherent in the prosecutor’s          responded, “They will probably give me the electric chair.”
statements in [Solivan] precisely because there was no             Officer Hennekes then asked, “Don’t you think you should
comparable specific wider context of national attention and        get the electric chair for what you did?” Hicks responded,
concern” here regarding the conviction of double-murderers         “Yeah, I do.” This was the first time defense counsel learned
like Hicks. See id. at 1154-55. Solivan is inapposite – it is      of these statements. Upon completion of this testimony,
untenable to suggest that the prosecutor’s statements were         Hicks moved for a mistrial premised upon the prosecution’s
directed to the jurors’ desire to end a social problem. Cf. id.    failure to comply with his pretrial discovery request, which
at 1153. These remarks were not misleading, inflammatory,          the trial court denied. Hicks’s counsel never requested that
or prejudicial. Assuming arguendo, however, that there was         the testimony be stricken from the record or for an
error, it was only harmless since the evidence of Hicks’s guilt    admonition to the jury to disregard the testimony.
was overwhelming. See id. at 1156 (prosecutorial error may
be held harmless “in light of the relative strength of the           Officer Hoffman’s notes of Hicks’s interview do not
evidence”). The prosecutor’s remarks were isolated and not         includes these statements. Both parties agree that this
so improper as to render the trial fundamentally unfair.           information was not given to the defense prior to trial;
Bowling, 344 F.3d at 512-13.                                       however, the prosecution could not recall if it was aware of
                                                                   these statements prior to trial. Officer Hennekes’s testimony
C. Claims Procedurally Defaulted                                   is the only evidence that Hicks uttered these statements.
                                                                   Hicks insists that these statements “were inherently and
  Hicks procedurally defaulted the following prosecutorial         inordinately prejudicial because they conveyed to the jury
misconduct claims by not asserting them on direct appeal.          Hicks’[s] apparent acquiescence in the correctness of a
Rather than challenging this determination, he asserts             recommendation of death as the appropriate penalty in his
ineffective assistance of appellate counsel as cause for           case.”
excusing the default. As addressed above, this is not proper
cause and the claims are defaulted; regardless, the defaulted         To the extent Hicks premises his argument upon Ohio
claims are analyzed below. Hicks still loses on the merits         Criminal Rule 16(B)(1)(a)(ii), there is no constitutional
because, for every claim, either the prosecution’s act was not     violation cognizable on habeas. See Lorraine v. Coyle, 291
improper or was not flagrant enough to result in enough            F.3d 416, 441 (6th Cir. 2002); see 28 U.S.C. § 2254(a)
prejudice to render the entire trial fundamentally unfair.         (habeas corpus proceedings may be entertained only if Hicks
                                                                   “is in custody in violation of the Constitution or laws or
  1. Failure to Disclose Statements                                treaties of the United States”). To the extent that Hicks states
                                                                   an alleged constitutional violation under Brady, however, he
  Hicks claims that, in violation of Brady v. Maryland, 373        was denied a fair trial only if the prosecutorial misconduct
U.S. 83, 87 (1963), and Ohio Criminal Rule 16(B)(1)(a)(ii),        was “so pronounced and persistent that it permeate[d] the
the prosecution failed to provide him with inculpatory             entire atmosphere of [his] trial,” or “so gross as probably to
statements he made to Cincinnati police officers. During the
No. 01-3764                             Hicks v. Collins    23    24    Hicks v. Collins                              No. 01-3764

prejudice [him].” United States v. Vance, 871 F.2d 572, 577       prosecution responded that it had obtained these records
(6th Cir. 1989) (citations omitted).                              through its investigators and Hicks could have done the same.
                                                                  The prosecution acknowledged that it was its practice to have
   Brady requires that the government turn over evidence in       investigators or police officers conduct record checks of
its possession to the defense that is both favorable to the       prospective jurors, particularly in high profile cases. Based
accused and material to guilt or punishment. 373 U.S. at 87.      upon the information in these records, during voir dire the
Pursuant to Brady, “evidence is material only if there is a       prosecution twice made reference to the non-felonious
reasonable probability that, had the evidence been disclosed      criminal history of prospective jurors and, after the
to the defense, the result of the proceeding would have been      prosecution’s challenge for cause was denied, exercised a
different.” United States v. Bagley, 473 U.S. 667, 682 (1985).    peremptory challenge to remove one juror. While Hicks
“The Brady rule does not assist a defendant who is aware of       concedes that “it is difficult to say that the prosecution’[s] use
essential facts that would allow him to take advantage of the     of this information to strike certain potential jurors effected
exculpatory evidence at issue.” Coleman v. Mitchell, 268          the verdict or sentence, it is clear that the inability to access
F.3d 417, 438 (6th Cir. 2001).                                    the information jeopardized [his] right to a fair trial.”
  There is no Brady violation here since there is no evidence       This claim fails. Convictions are public record. State v.
that the prosecution knew of Hicks’s statements before trial.     Cook, 700 N.E.2d 570, 579 (Ohio 1998). Although the
These statements were elicited during Hicks’s cross-              prospective jurors’ arrest records may or may not constitute
examination of Officer Hennekes, not on direct examination        confidential law enforcement investigatory records, see State
by the prosecution. Moreover, as Hicks allegedly uttered          ex rel. Outlet Communications, Inc. v. Lancaster Police
these statements, he knew whether he made them and could          Dep’t, 528 N.E.2d 175, 178 (Ohio 1988) (in context of
have advised his counsel accordingly. See Carter v. Bell, 218     O.R.C. § 149.43(A)(2)(a)), outstanding warrants are not
F.3d 581, 601 (6th Cir. 2000) (“[N]o Brady violation if the       public record. Nevertheless, any distinction is irrelevant –
defendant knew or should have known the essential facts           while Hicks makes the general allegation that he was deprived
permitting him to take advantage of the information in            “of the kind of fact-finder to which he [is] constitutionally
question . . . .”). Although Hicks claims that the statements     entitled[,]” Taylor v. Louisiana, 419 U.S. 522, 526 (1975),
were material to his punishment, i.e., that he believed the       and references two cases from other jurisdictions indicating
death penalty was the appropriate penalty for his crimes, he      that the prosecution must disclose prospective jurors’ arrest
was not sentenced to death for both murders. Hicks’s belief       records to the defense, he cannot demonstrate how this
that he would be sentenced to death is also consistent with his   prosecutorial impropriety deprived him of a fair trial.
expression of remorse during the penalty phase of his trial.      Considering the overwhelming evidence of Hicks’s guilt, the
Hicks was not denied a fair trial because the result of the       fact that no evidence was presented indicating that the
proceeding would not have been different.                         prosecution obtained the records in violation of either state or
                                                                  federal law, his failure to show that the records affected the
  2. Use of Confidential Arrest Records                           jury’s verdict or sentencing recommendation, and his own
                                                                  concession, the prosecution’s conduct was not “so egregious
  During voir dire, the prosecution used records of               as to render [his] trial fundamentally unfair.” Buell v.
outstanding warrants and convictions of prospective jurors.       Mitchell, 274 F.3d 337, 364 (6th Cir. 2001) (citations
Hicks’s counsel raised the issue during voir dire but the         omitted); see also Weatherford v. Bursey, 429 U.S. 545, 559
No. 01-3764                                     Hicks v. Collins       25     26    Hicks v. Collins                                   No. 01-3764

(1977) (“There is no general constitutional right to discovery                  4. Prosecution’s Isolated Comments
in a criminal case . . . .”).
                                                                                Hicks first complains that, during its opening statement, the
  3. Victim Impact Statements                                                 prosecution implied his guilt by emphasizing the importance
                                                                              of the indictment. When read in context, the prosecution was
  Hicks complains of prosecutorial victim impact statements                   only reading the charges. Even if this was somehow
that appealed to the jury’s emotions at both the guilt and                    improper, it was an isolated statement, the evidence of guilt
penalty phases of the trial. Generally, the statements play on                was overwhelming, and the trial court gave an instruction that
Brandy’s young age, Maxine’s handicap, and the idea that the                  the indictment was not evidence. See United States v. Bond,
murders destroyed a whole family. 10 While the State answers                  22 F.3d 662, 668 (6th Cir. 1994) (finding prosecution’s
that the Supreme Court in Payne v. Tennessee, 501 U.S. 808,                   reference to indictment did not imply guilt and that
827 (1991), sanctioned the use of victim impact statements,                   instruction cured any possible error).
Payne simply dealt with the sentencing phase. Nevertheless,
this court has approved victim impact evidence during the                        Hicks next complains that the prosecution told the jury that
guilt phase, rather than at sentencing, as an extension of                    the trial court did not believe his intoxication or insanity
Payne. See Cooey v. Coyle, 289 F.3d 882, 921 (6th Cir.                        defenses. These comments concern the prosecution’s
2002).                                                                        statements that the trial court would not give an instruction on
                                                                              intoxication/insanity because of the lack of supporting
  Hicks cites State v. McNeill, 700 N.E.2d 596 (Ohio 1998),                   evidence. This claim fails for two reasons. First, the Ohio
for the proposition that the Ohio Supreme Court has limited                   Supreme Court has approved these types of statements. See
the admission of victim impact evidence to rebuttal of offered                State v. Smith, 780 N.E.2d 221, 234 (Ohio 2002) (finding “it
mitigation. Since this limitation is an Ohio rule of procedure                was permissible for the prosecutor to point out to the jury that
rather than a constitutional argument, see id. at 606, it                     the evidence did not warrant such an instruction” on
provides no habeas relief. In any event, there was no                         intoxication). Second, both intoxication and insanity are
prejudice because the statements were not “so pronounced                      affirmative defenses in Ohio. See State v. Rupp, No.
and persistent” that they “permeate[d] the entire atmosphere                  CA2001-06-135, 2002 WL 517968, at *6 (Ohio Ct. App. Apr.
of the trial . . . .” Pritchett v. Pitcher, 117 F.3d 959, 964 (6th            8, 2002) (intoxication);11 State v. Filiaggi, 714 N.E.2d 867,
Cir.1997). The statements were isolated, not extensive, and                   878 (Ohio 1999) (insanity). Even if the statements
the proof of guilt was overwhelming.                                          improperly intimated that the trial court believed that the
                                                                              affirmative defenses were meritless, see United States v.
                                                                              Sullivan, 919 F.2d 1403, 1425 (10th Cir. 1990), they came
                                                                              during the guilt phase. Thus, even if improper, the comments
                                                                              regarding the intoxication/insanity instruction were not
                                                                              prejudicial since the evidence of guilt was overwhelming.
    10
        During the trial, the prosecution referred to “Little Brandy Green”
as being five years old, her pa rrot named “Pierre,” and to Maxine as “a           11
cripp le.” During closing argument, the prosecution brought up that Hicks             Although Rupp explained that voluntary intoxication is no longer
“destroyed an entire family” and invited the jury to imagine what went        an affirmative defense, it was available as an affirmative defense on the
through B randy’s mind.                                                       date o f Hicks’s offenses. See sup ra, n.5.
No. 01-3764                             Hicks v. Collins    27    28    Hicks v. Collins                             No. 01-3764

   Hicks also complains that the prosecution suggested that       authorizing the death penalty, and (3) “fate, God, a deity or
his defense counsel had “no doubt” that he was guilty and that    something who has determined that there will be a just
they knew he committed these “very dastardly acts.” While         punishment for this man.” Caldwell stands for the
it is generally improper for the prosecution to imply that        proposition that the jury should not feel less responsible, or
defense counsel thinks the defendant is guilty, see generally     more free to err, because of a belief that its decision to impose
Gregory G. Sarno, Annotation, Propriety and Prejudicial           death will not have effect unless others later confirm the
Effect of Prosecutor’s Argument Giving Jury Impression that       decision. Here, all three of the complained sources have to do
Defense Counsel Believes Accused Guilty, 89 A.L.R.3d 263          with previous authorization, not further review or
(1979), defense counsel did say “the evidence is going to         confirmation as in Caldwell.
show . . . he committed these dastardly acts.” Thus, the claim
fails.                                                              Nevertheless, the third source, “God,” is problematic on
                                                                  separate religious grounds. Courts universally condemn
  5. Additional Comments                                          religious injections. Sandoval v. Calderon, 241 F.3d 765, 777
                                                                  (9th Cir. 2001). However, again, the prosecutor’s reference
   Hicks’s claim that the prosecution improperly brought          was one isolated statement and it is doubtful a jury would
attention to the fact that his mitigation statement was unsworn   have felt a diminished responsibility by an ambiguous
fails because the prosecution may properly comment that a         reference to “fate, God, a deity or something.” Plus, the court
defendant’s mitigation statement is unsworn. DePew v.             gave the standard instruction that what the lawyers say is not
Anderson, 311 F.3d 742, 745 (6th Cir. 2002). Hicks also           evidence. See Bennett v. Angelone, 92 F.3d 1336, 1346-47
complains that, during voir dire, the State miscast the jury      (4th Cir. 1996) (finding lack of prejudice because of standard
decision as only a recommendation, causing the jury to think      instruction). This is not a case where the prosecutor quoted
it had a watered-down role in imposing death in violation of      at length from Scripture about God mandating death. See
Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985)              Sandoval, 241 F.3d at 775-80. There was no prejudice.
(holding prosecutor’s argument that jury’s decision was not
final because of appellate review was improper because it is        Hicks further maintains that the prosecution, during closing
“constitutionally impermissible to rest a death sentence on a     argument, reviewed all mitigating factors listed in the statute,
determination made by a sentencer who has been led to             including those not raised by the defense. This was improper,
believe that the responsibility for determining the               as we have held that mitigation issues not brought up by the
appropriateness of the defendant’s death rests elsewhere”).       defense cannot be brought up by the State because it
Since Ohio law requires a separate, post-recommendation           impermissibly focuses the attention on the absence of
finding by the trial judge confirming the jury's sentence, this   mitigating factors. Combs, 205 F.3d at 292. While it may be
court has held that casting the jury’s decision as a              one of the more meritorious of all Hicks’s claims, it fails for
“recommendation” is not an inaccurate statement of Ohio law       lack of prejudice. It does not appear that any court has ever
and therefore does not violate Caldwell. Coleman, 268 F.3d        found prejudice on a Combs claim. Moreover, the
at 436.                                                           prosecution simply laid out all the mitigating factors and
                                                                  argued why they did not apply. The prosecution did not
  Similarly, Hicks charges the prosecution violated Caldwell      “mischaracterize[] a potentially mitigating factor as an
by identifying three sources of responsibility for Hicks’s        aggravating factor . . . .” Turner v. Calderon, 281 F.3d 851,
death sentence: (1) Hicks himself, (2) the people of Ohio for     870 (9th Cir. 2002). “Given the particularly savage nature”
No. 01-3764                              Hicks v. Collins    29    30       Hicks v. Collins                                     No. 01-3764

of these murders and “the few mitigating factors presented           _____________________________________________
by” Hicks, there was an “overwhelming balance of valid
aggravating evidence” and therefore no reasonable possibility        CONCURRING IN PART, DISSENTING IN PART
that the Combs violation affected the penalty verdict. See id.       _____________________________________________
at 869-70.
                                                                     CLAY, Circuit Judge, concurring in part and dissenting in
   Last, Hicks complains that the State impermissibly turned       part. Contrary to the majority’s disposition, prosecutorial
the nature of the crime into an aggravating factor. Although       misconduct in the state court trial should entitle Petitioner to
the prosecution “may properly refer to the nature and              a new mitigation phase trial.1 Due to the overwhelming
circumstances of the offense, it is improper to characterize       evidence of guilt, Petitioner is not entitled to a new guilt
that evidence as a nonstatutory aggravating circumstance.”         phase trial. I will first explain how the prosecution made
Combs, 205 F.3d at 292. Despite Hicks’s claim, as the              numerous statements that were improper on various separate
prosecution never told the jury that it could consider the         grounds, and secondly will explain why this was prejudicial.
nature of the crime as an aggravating factor, this claim fails.
                                                                                                         I.
  6. Peremptory Strikes
                                                                     The prosecution repeatedly violated three rules during the
  Hicks finally argues that the prosecution’s use of               closing argument of the guilt phase of the trial–which will be
peremptory challenges to exclude jurors who opposed the            made clear after the applicable rules are set forth.
death penalty denied him an impartial jury. This claim is
without merit because Hicks confuses those cases where                First, this Court has stated that “appeals to the jury to act as
jurors were improperly stricken for cause. As long as not          the community conscience” are per se impermissible, when
based on race or gender, peremptory challenges are proper.         “calculated to incite the passions and prejudices of the
Dennis v. Mitchell, 354 F.3d 511, 525 (6th Cir. 2003)              jurors.” United States v. Solivan, 937 F.2d 1146, 1151 (6th
(upholding peremptory challenges based on opposition to            Cir. 1991). The prosecution has a right to cast the defendant
death penalty).                                                    as a villain, but the prosecution may not pressure the jury to
                                                                   uphold its role as righteous executioners–and the prosecution
                    III. CONCLUSION                                is strictly forbidden from suggesting to the jury that harsh
                                                                   treatment of one particular defendant will help to solve a
   For the foregoing reasons, the judgment of the district court   larger societal problem. The specific societal issue in Solivan
is AFFIRMED.                                                       was the use of drugs.
                                                                     Second, under Darden v. Wainwright, 477 U.S. 168, 179-81
                                                                   (1986), the prosecution is prohibited from arguing for the


                                                                        1
                                                                         Because I believe that prosecutorial misconduct is the dispositive
                                                                   issue, I do not take a position on any of the other issues raised in this case,
                                                                   except to say that no issu e warrants a ne w guilt phase trial.
No. 01-3764                                   Hicks v. Collins      31     32        Hicks v. Collins                             No. 01-3764

death penalty during the guilt phase of the trial.                           THE COURT: This Court leaves a lot of latitude in final
Commingling the guilt phase with the capital sentencing                      argument. The jury knows what the evidence is and the
question encourages the jury to view the case as a single                    Court will instruct the jury on the law. Proceed.
entity; in a case, such as this one, with overwhelming
evidence of guilt, the jury is discouraged from drawing a                    MR. CROWE: . . . We all said the death penalty serves
distinction between its guilt phase trial verdict and its                    a purpose. Some of you have said retribution is a valid
sentencing recommendation. The prosecutor gains an unfair                    reason, some of you said deterrent.[3] I ask you, ladies
advantage by getting a head start on his argument for the                    and gentlemen, it is time you sent a message to the
death penalty, which causes the jury2 to enter the mitigation                community. That this is no excuse.
phase of the trial with preconceptions as to sentencing.
                                                                             MR. RUEGER: Judge, I object to that this is highly
  Third, when addressing the jury, “[t]he prosecutor has a                   improper and I have to make a motion for a mistrial.
duty not to misrepresent the law . . . .” Hung Thanh Le v.
Mullin, 311 F.3d 1002, 1022 (10th Cir. 2002); see also United                THE COURT: The objection is sustained. The motion
States v. Ollivierre, No. 03-4802, 2004 U.S. App. LEXIS                      for a mistrial is denied.
16681, at *12 (4th Cir. Aug. 13, 2004) (published).                            Proceed, Mr. Crowe.

  During the closing argument of the guilt phase of the trial,               MR. CROWE: Consider deterrents [sic–deterrence] . . .
these three rules were violated continually and to an extreme                when you think about cocaine, the devil the cocaine.
degree. In numerous instances in the closing argument of the
guilt phase trial, prosecuting attorney Claude N. Crowe                    (J.A. at 2779-84.)
repeatedly, and over objection, argued for a death sentence,
pressuring the jury to serve as a community conscience by                    Crowe’s statements here urged the jury to recommend a
sentencing Petitioner to death, to send a message to the                   death sentence for the purpose of “sen[ding] a message to the
community regarding the larger societal problem of drug use.               community” that drug use will not be tolerated, i.e., a
                                                                           message of “deterrence” regarding “the devil cocaine.”
  Early in the closing argument of the guilt phase trial, Crowe            Crowe urged the jury to “sen[d] a message to the
began arguing that a death sentence would send a message to                community,” by “tak[ing] [Petitioner’s] life.” Crowe was not
the community that would deter cocaine use:                                asking the jury to send a message that would deter murder; he
                                                                           was not arguing that sentencing Petitioner to death would
  MR. CROWE: We are trying to take this man’s life.                        send any general message of deterrence to potential
                                                                           murderers, whose possible crimes may involve vastly
  MR. RUEGER [HICKS’ COUNSEL]: Objection, your                             different types of victims, motivations, and circumstances.
  Honor, that has no place in this particular matter.                      What Crowe wanted was a message that would deter cocaine
                                                                           use. Sentencing a cocaine user to death, for a murder that was
                                                                           inextricably tied to cocaine use–Petitioner was intoxicated by
    2
     The same jury serves in both the guilt and sentencing phases. Oh io
Rev. Code § 2929.03(D)(2) (“the trial jury” is responsible for capital          3
sentencing recommendations).                                                        The prosecution referenced voir dire, here.
No. 01-3764                             Hicks v. Collins     33    34    Hicks v. Collins                             No. 01-3764

cocaine at the time of both murders, and the first murder was      were drug crimes. By contrast, in the instant case, Petitioner
motivated by the desire to steal money that would be used to       was not charged with any drug offense. Crowe’s deterrence
buy more cocaine–would “sen[d] a message to the                    argument asked the jury to treat Petitioner harshly, so as to
community” that the penalties for cocaine use can be               send a message that would deter cocaine use; this request to
extremely severe. This is the “deterrence” that Crowe clearly      impose a harsh sentence based upon cocaine use carried with
referenced, when he said: “Consider deterrents                     it the necessary and obvious implication that under Ohio law
[sic–deterrence] . . . when you think about cocaine, the devil     a jury is authorized to consider drug use as an aggravating
the cocaine.”                                                      factor in sentencing for a capital crime. This implication was
                                                                   patently false. Under Ohio law, the jury is not permitted to
   Crowe’s statements regarding sending a message to deter         consider drug use as an aggravating factor in capital
cocaine use were highly improper. In Solivan, this Court           sentencing. Ohio’s capital sentencing scheme contains a
remanded the case for a new trial, based upon the prosecutor’s     finite list of aggravating factors, and cocaine use (or the use
similar drug deterrence argument. In that case, the prosecutor     of other drugs or alcohol) is not one of them. Ohio Rev. Code
argued, in his closing statement, “I'm asking you to tell her      § 2929.04(A). Crowe misrepresented the law to the jury, by
and all of the other drug dealers like her—(defense counsel's      indicating that a death sentence could be justified, in part, by
objection and Court's response omitted)—[t]hat we don't            Petitioner’s use of cocaine.
want that stuff in Northern Kentucky and that anybody who
brings that stuff in Northern Kentucky . . . .” 937 F.2d at           This misrepresentation of Ohio law was extensive. Crowe
1148 (emphasis in original). Crowe’s statements about              continually attempted to draw the improper, unfounded
addressing the community-level problem of drug use were            implication that cocaine use can be an aggravating factor in
directly in violation of Solivan. If Crowe’s statements were       capital sentencing. Later in the closing argument of the guilt
slightly less outrageous than those in Solivan, then Crowe’s       phase trial, Crowe again repeatedly referenced the jury’s
rhetoric was also far more impassioned, referencing “the devil     alleged duty to send Petitioner to death, at least in part due to
cocaine.” Here, as in Solivan, the attempt to use the particular   his drug use:
case before the jury to address the larger societal problem of
drug use constituted “an appeal wholly irrelevant to any facts       I don’t want there to be any question in your mind what
or issues in the case, the purpose and effect of which could         your duty is in this case. There was no question in his
have only been to arouse passion and prejudice.” Id. at 1151         mind what he wanted the result to be [in committing the
(characterizing Viereck v. United States, 318 U.S. 236, 237-38       murders]. And I tell you, ladies and gentlemen, he
(1943)).                                                             forfeited his right to life at that point in time. All for
                                                                     devil cocaine. The devil cocaine is not a defense. . . .
  In improperly urging the jury to act as the community
conscience by using this particular case to promote                  As difficult as it may be to face what must be done in this
“deterrence” of cocaine use, Crowe misrepresented the law to         case . . . .
the jury. In Solivan, the prosecutor’s comments were
improper solely because they urged the jury to serve as the          ....
community conscience. But the comments in Solivan did not
misstate the law–the jury was authorized to punish the               The people in this community have the right to expect
defendant for drug trafficking because the charged offenses          that you will do your duty.
No. 01-3764                                     Hicks v. Collins       35     36    Hicks v. Collins                               No. 01-3764

(J.A. at 2788-92.)                                                            Crowe’s breaches of the rules appear to fit together as part of
                                                                              the larger plan.
  Crowe was improperly arguing that “the devil cocaine”
could be considered as a reason for the jury to conclude that                    Crowe characterized the central issue in this case as being
Petitioner “forfeited his right to life.” Crowe may have tried                that of cocaine use; cocaine was the aggravating circumstance
to clean up his language by mentioning that cocaine                           that could convince the jury to recommend a death sentence.
intoxication is not a defense.4 But by the time he said this it               During the closing argument of the guilt phase trial, when
was too late–Crowe had just finished drawing the link                         Crowe began to refute the cocaine defense, Crowe
between cocaine use and the death sentence. Moreover, soon                    characterized Petitioner’s mindset as follows: “The most
after referencing the fact that cocaine intoxication was not a                important thing is craving for more cocaine. Well, that is
defense, Crowe returned to his message that a death sentence                  right. The most important thing in his life is the craving of
was appropriate–urging jurors to do “what must be done,”                      cocaine and not the well being of other human beings.” (J.A.
their “duty,” even though it would be “difficult.” Needless to                at 2788.) These comments did not refute the defense of
say, Crowe was urging jurors to recommend a death sentence.                   cocaine intoxication. If anything, the comments supported
(There is nothing “difficult” about merely finding a defendant                the defense of cocaine intoxication by twice referring to the
guilty of crimes to which he had confessed.) This intimation                  “craving” of cocaine. Such language could have suggested
that the “devil cocaine” could be considered as a reason to                   that Petitioner had lost control at the time of the crimes and
recommend a death sentence was a misrepresentation of Ohio                    lacked the requisite mens rea. Clearly, Crowe was not
law.                                                                          discussing guilt; he was trying to convince the jury to
                                                                              recommend a death sentence. When Crowe said, “The most
   Crowe used this particular case as a vehicle to further the                important thing in his life is the craving of cocaine and not the
larger social agenda of drug deterrence. Based upon Crowe’s                   well being of other human beings,” this statement was not
arguments, the guilt phase was not about determining                          limited to Petitioner; the statement was an indictment of
Petitioner’s guilt–it was about something more, i.e., achieving               cocaine users, generally. In Crowe’s view, the use of cocaine
a death sentence. And the sentence was not solely about                       was “a conscious decision which they make.” (J.A. 2783-84)
punishment–it was about something more, i.e., condemnation                    (emphasis added). “They”–cocaine users, generally–were on
of “the devil cocaine.” Because Crowe obviously saw his                       trial, not just Petitioner.
ultimate goal of deterring cocaine use as extremely important,
the ends justified the means, resulting in a misrepresentation                   Crowe saw the case quite clearly. This was the opportunity
of the law, i.e., Crowe’s encouraging the jury to consider                    to “sen[d] a message” to potential users of “the devil
cocaine use as an aggravating factor in sentencing. Each of                   cocaine,” that “they” would be held accountable. Drug
                                                                              convictions do not carry death sentences; thus they offer less
                                                                              of an opportunity to make an example of a defendant. But
                                                                              this case was different. This was a referendum. The next
    4                                                                         time a potential user felt a “craving” for cocaine, he would
      Crowe was, of course , entitled to refute the argument that cocaine
intoxication was a defense; Crowe was entitled to argue that the effects of   think twice before making the “conscious decision” to use the
cocaine use had not diminished Petitioner’s capacity to act purposely,        drug–he would realize that the drug had caused Petitioner to
with intent, under the definition of aggravated murder. Ohio Rev. Code        “forfeit[] his right to life.” The goal of the trial was not to
§§ 2901.22(A ) (definition of “purpo sely”), 2903.01(A) (mens rea for
aggravated murder).
                                                                              find the facts but rather to “try[] to take [Petitioner’s] life,” in
No. 01-3764                              Hicks v. Collins    37    38       Hicks v. Collins                                   No. 01-3764

the service of a higher purpose–“deterrence” of cocaine use.                                           II.
The “community ha[d] the right to expect that” jurors would
do their solemn “duty,” to help win the war on drugs.                 The prosecution’s improper statements were prejudicial.
                                                                   The standard for prejudice is whether the improper remarks
   Crowe’s pervasive message was highly improper in                were “harmless beyond a reasonable doubt,” i.e., whether
attempting to invoke the community conscience to such a            there is a “reasonable possibility” that the error might have
degree. But what made the conduct especially egregious was         contributed to the result being challenged. Solivan, 937 F.2d
that Crowe overstepped the boundary between the guilt and          at 1155.
mitigation phases by encouraging the jury to prejudge the
sentencing decision before Petitioner’s attorney had the             There is no need to answer the question of whether any of
opportunity to address the penalty issue. By so doing, Crowe       the prosecution’s improper remarks might have been
pressured the jury to ignore governing Ohio law under which        prejudicial, taken individually. Individual instances of
drug use cannot be considered as an aggravating factor in          prosecutorial misconduct can be cumulated.5 (Actually,
capital sentencing. Crowe violated certain clear, fundamental      different types of constitutional errors can even be cumulated,
rules that constrain prosecutorial advocacy.                       in a capital case;6 but the prosecutorial misconduct issue in
                                                                   the instant case need not rely on that rule.)
   The attempt to invoke improper considerations did not end
with the guilt phase. During the closing argument of the             In DePew v. Anderson, in cumulating numerous errors to
penalty phase, Crowe’s colleague, John J. Arnold stated, “It       vacate a death sentence, this Court made clear that in capital
is the people of the State of Ohio who have determined that        cases it is more difficult for the prosecution to demonstrate a
in a case such as this death may be an appropriate decision.       lack of prejudice:
And finally I suppose it is – I don’t know if you want to call
it fate, God, a deity or something who has determined that           Members of the Supreme Court have advised us to
there will be a just punishment for this man.” (J.A. at 2924.)       remember that “death is different”–that “[t]he taking of
The majority acknowledges that this violated Petitioner’s            life is irrevocable,” so that “[i]t is in capital cases
fundamental constitutional rights. Sandoval v. Calderon, 241         especially that the balance of conflicting interests must
F.3d at 776 (“In a capital case like this one, the prosecution’s     be weighed most heavily in favor of the procedural
invocation of higher law or extra-judicial authority violates        safeguards of the Bill of Rights,” Reid v. Covert, 354
the Eighth Amendment . . . .”). Taken alone, Arnold’s
statement could be overlooked. But the comment must be
viewed as part of the prosecution’s improper continuing                 5
                                                                        Lundy v. Camp bell, 888 F.2d 467, 474-75 (6th Cir. 1989) (citing
attempt to sermonize about the larger purposes and ideals that     Angel v. Overb erg, 682 F.2d 605, 608 (6th C ir. 198 2) (en banc )). See also
would be served by Petitioner’s receiving a death sentence.        United States v. Young, 470 U.S. 1, 11 (1 985) (“the prosecutor’s remarks,
                                                                   when viewed within the context of the entire trial”), 12 (“the remarks
                                                                   must be examined within the context of the trial to determine whether the
                                                                   prosecutor’s behavior amounted to prejudicial error”).

                                                                        6
                                                                         In DePew v. Anderson, constitutional errors that might have been
                                                                   harmless, taken individually, were cumulated by this Court, leading to a
                                                                   reversal of a death sentence. 311 F.3d 742 , 751 (6th Cir. 2002).
No. 01-3764                             Hicks v. Collins    39    40   Hicks v. Collins                            No. 01-3764

  U.S. 1, 45-46, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957)             send a message of deterrence regarding the larger societal
  (Frankfurter, J., concurring), and that “[i]n death cases       problem of illegal drug use.
  doubts . . . should be resolved in favor of the accused.”
  Andres v. United States, 333 U.S. 740, 752, 68 S.Ct. 880,         The Solivan Court considered the inflammatory nature of
  92 L.Ed. 1055 (1948). In Caldwell v. Mississippi, 472           the comments made by the prosecution and also “[b]oth the
  U.S. 320, 329, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985),           timing and the firmness of the trial court’s” curative
  the Court decided that a prosecutor's prejudicial               instruction. 937 F.2d at 1157. The Solivan Court noted that
  statements in closing argument rendered the death               there was a substantial delay before the trial judge offered a
  sentence invalid. It applied a stricter standard in             curative instruction–after the objection, there was a
  assessing the validity of closing argument in death cases       conference between the trial judge and the attorneys for both
  relying on the Court’s admonition in California v.              sides–and there was no firm rebuke by the trial judge. Id.
  Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 77                 Because each of these factors suggested prejudice, the error
  L.Ed.2d 1171 (1983), that under the Eighth Amendment            could not be deemed harmless. Id. In the instant case, there
  “the qualitative difference of death from all other             were never any curative instructions; after sustaining an
  punishments requires a correspondingly greater degree of        objection regarding Crowe’s call for the jury to “sen[d] a
  scrutiny in capital sentencing determinations.”                 message to the community,” the trial judge simply allowed
                                                                  Crowe to proceed with his closing argument. Additionally,
311 F.3d 742, 751 (6th Cir. 2002).                                as explained above, in the instant case–but not in Solivan–the
                                                                  prosecutor misstated the law (by suggesting that drug use
  Under the heightened scrutiny in a capital case that DePew      could factor into the sentencing recommendation). Finally,
requires, the prosecution’s improper statements prove             Solivan was not a capital case; thus, DePew’s heightened
prejudicial when viewed cumulatively. There is a reasonable       scrutiny of prejudice in a capital case was not applicable in
possibility that the jury’s sentencing recommendation was         Solivan.
influenced by the improper statements; this can be
demonstrated by virtue of comparison with Solivan.                   Overall, then, there is nothing in Solivan that would weigh
                                                                  more strongly in favor of post-conviction relief than the
  In Solivan, this Court reversed convictions and sentence        circumstances in the instant case. And at least four factors
and remanded the case for new trial because improper              suggest prejudice more strongly in the instant case than in
prosecutorial remarks had been prejudicial. A comparison          Solivan: (1) the appeals to community conscience were more
reveals that, on all accounts, Petitioner’s case for granting a   numerous in the instant case than in Solivan; (2) the trial
new mitigation phase trial is either comparable to or stronger    judge offered no curative instructions in the instant case, as
than the argument for a new trial in Solivan. Here, as in         opposed to a delayed curative instruction in Solivan;
Solivan, the improper remarks were “calculated to incite the      (3) unlike Solivan, the instant case involved misrepresentation
passions and prejudices of the jury.” 937 F.2d at 1151. In        of law to the jury; and (4) unlike Solivan, the instant case is
Solivan, there was only one statement appealing to the            a capital case.
community conscience. In the instant case, as recounted
above, there were numerous separate statements appealing to         Solivan makes clear that strong evidence of guilt can
community conscience. In Solivan, as in the instant case, the     provide a reason for a finding that improper prosecutorial
prosecution improperly suggested that the jury use the case to
No. 01-3764                                      Hicks v. Collins        41     42       Hicks v. Collins                                     No. 01-3764

statements were harmless. 937 F.2d at 1156.7 Yet this                           mitigation. The Supreme Court of Ohio pointed out that
principle cannot be applied to demonstrate a lack of prejudice                  Petitioner “turned himself in, waived extradition, and
in the instant case. In Solivan, the prosecutorial misconduct                   cooperated with police. This factor tends to show remorse
was so egregious that the conviction–i.e., the jury’s fact-                     . . . .” State v. Hicks, 538 N.E.2d 1030, 1039, 43 Ohio St. 3d
finding–was reversed. In the instant case, where the                            72, 80 (Ohio 1989). In addition, contrary to Crowe’s
impropriety was worse than in Solivan, for the above-                           representations to the jury that cocaine use was an
mentioned reasons, in sentencing the jury was required not                      aggravating factor (i.e., Crowe’s deterrence argument), the
merely to engage in objective fact-finding but rather to weigh                  Supreme Court of Ohio considered the cocaine use to be a
aggravating and mitigating factors. There is no basis for                       mitigating factor. Id. (“The possibility that appellant was
speculating that the jury’s weighing function was unaffected                    under the influence of drugs when he killed his victims should
by the prosecution’s polemics.                                                  be assigned some weight in mitigation.”).8 Also, the Supreme
                                                                                Court of Ohio noted that various other types of mitigation
   Under Ohio law, the prosecution has “the burden of                           evidence had been presented, including evidence that
proving, by proof beyond a reasonable doubt, that the                           Petitioner had a learning disability, evidence of Petitioner’s
aggravating circumstances the defendant was found guilty of                     troubled childhood in which his father had possibly been an
committing are sufficient to outweigh the factors in mitigation                 alcoholic, and evidence of Petitioner’s reputation among co-
of the imposition of the sentence of death.” Ohio Rev. Code                     workers as having good character and a strong work ethic. Id.
§ 2929.03(D)(1). The jury is not permitted to recommend a
death sentence unless it “unanimously finds, by proof beyond
a reasonable doubt, that the aggravating circumstances the                           8
offender was found guilty of committing outweigh the                                   The court consid ered coca ine use to be relevant to at least one of the
mitigating factors.” Id. § 2929.03(D)(2). The death penalty                     mitigation factors. The court may have reasoned that cocaine addiction
                                                                                was “a mental disease or defect” that caused a criminal to “lack[]
cannot be imposed in Ohio, unless the jury has given its                        substantial capa city to appreciate the criminality of the offender's conduct
unanimous recommendation. Id. Hence, synthesizing all of                        or to conform the offend er's cond uct to the requirements of the law.”
the applicable standards, all that is needed to show prejudice                  Ohio Rev. Code § 2929.04 (B)(3). In the alternative, cocaine use could be
is the demonstration of a reasonable possibility that, absent                   considered under the residual catch-all prov ision for mitigating factors.
the improper statements, at least one juror would have                          Id. § 2929.04(B)(7) (“Any other factors that are relevant to the issue of
declined to find that the prosecution had proved beyond a                       whether the offender should be sentence d to d eath” may be con sidered to
                                                                                the extent that they “weigh against the aggravating circumstances”).
reasonable doubt that the aggravating factors outweighed the                          At sentencing, Crowe had the right to refute the argument that
mitigating factors.                                                             cocaine use should be a strong mitigating factor. But such refutation
                                                                                could only occur after Petitioner’s counsel had made the mitigation
  The jury was presented with various forms of mitigation                       argum ent. Instead, Crowe preempted Petitioner’s counsel, by raising the
evidence in this case. In its review of the case, the Supreme                   topic of sentencing during the guilt phase trial, before Petitioner’s counsel
                                                                                had made any mitigation argument. Thus, Crowe’s message could not be
Court of Ohio explained that at sentencing Petitioner had                       interpreted as a rebuttal of a mitigation factor. During the guilt phase
presented numerous pieces of evidence that were relevant to                     trial, Crowe was not refuting the notion that cocaine use provided a
                                                                                justification for a less harsh sentence. Crowe’s guilt phase trial argument
                                                                                as to deterrence was a clear message that the cocaine use was a reason to
    7
                                                                                treat Petitioner more harshly. It was imp roper to m ake this argument,
      Due to the overwh elming evidence o f guilt, including Petitioner’s       because under Ohio law there is no aggravating factor that could possibly
police confession, the result of the guilt phase trial need not be disturbed.   be construed to include cocaine use.
No. 01-3764                             Hicks v. Collins     43

   In light of the presentation of mitigation evidence, there is
no basis for a determination that the prosecution’s extensive
improper statements did not influence the jury in a function,
the weighing of factors, that is inherently discretionary. To
weigh aggravating and mitigating factors, the jury must
decide what relative value to assign to each factor. The
prosecution’s comments advocated improper values for jurors
to use, in their weighing function. Crowe forcefully pushed
the jury to value the community’s stake in deterrence of
cocaine use, in sentencing a defendant who was not being
tried for a drug crime. The trial judge gave no curative
instructions to blunt the impact of these improper remarks.
Given the extensive nature of Crowe’s improper statements,
a conclusion that there was no prejudice here would require
more speculation than DePew permits in a capital case.
                      CONCLUSION
  For the aforementioned reasons, I respectfully dissent as to
the issue of prosecutorial misconduct, and I would vacate and
remand for a new mitigation phase trial. Due to the
overwhelming evidence of guilt, I concur that the improper
prosecutorial statements did not prejudice Petitioner in the
guilt phase of his trial, and thus I would affirm the district
court’s denial of a new guilt phase trial.
