Supreme Court of Ohio Clerk of Court - Filed July 21, 2017 - Case No. 2011-0538

IN THE SUPREME COURT OF OHIO

STATE OF OHIO, : Case No. 2011-0538

Appellee, : ON APPEAL FROM THE BUTLER COUNTY COURT OF APPEALS, vs. : TWELFTH APPELLATE DISTRICT. CASE NO. CA2009-10-263 VON CLARK DAVIS, :

Appellant. : CAPITAL CASE ______

APPELLANT VON CLARK DAVIS’ MOTION FOR ORDER FOR RELIEF PURSUANT TO S. CT. PRAC. R. 4.01 ______

LAURENCE E. KOMP (0060142) Attorney at Law P.O. Box 1785 Manchester, Missouri 63011 636-207-7330 [email protected]

COUNSEL FOR APPELLANT MICHAEL T. GMOSER (002132) Butler County Prosecutor LINA A. ALKAMHAWI (#0075462) Assistant Prosecuting Attorney Chief, Appellate Division Butler County Prosecuting Attorneys Government Services Center, 315 High Street, Hamilton, Ohio 45011

COUNSEL FOR APPELLEE

MOTION FOR ORDER OR RELIEF

Von Clark Davis respectfully moves the Court to vacate his death sentence and remand the matter to the trial court for a new penalty phase hearing consistent with Mr. Davis’ right to a jury trial under Hurst v. Florida, 136 S. Ct. 616 (2016). As set forth below, the Supreme Court of the

United States in Hurst has now held unequivocally that the Sixth Amendment entitles a capital defendant to be sentenced by a jury. Thus, absent a proper waiver, a three-judge panel did not have jurisdiction to hear Mr. Davis’ mitigation case. Mr. Davis’ 1984 wavier could not, and thus did not, function as a prospective waiver of his not-yet-recognized constitutional rights at the sentencing phase of his trial. Accordingly, when he returned to the trial court for new penalty phase trials and resentencing, he should have been permitted to be retried by a jury. The trial court, however, enforced his 1984 jury waiver and refused to grant his motions to withdraw that waiver.

The failure to honor Mr. Davis’ request led to the deprivation of his jury-trial rights at sentencing.

Hurst renders Mr. Davis’ forced retrial before a three-judge panel constitutionally impermissible. The Supreme Court of the United States held in Hurst that the Sixth Amendment guarantees a capital defendant an unequivocal right to a jury determination of every fact necessary to impose a sentence of death. See Hurst, 136 S. Ct. at 619. (holding that the Sixth Amendment

“requires a jury, not a judge, to find each fact necessary to impose a sentence of death). Mr. Davis never waived such a constitutional right to a jury determination at the mitigation phase of his trial.

And absent a properly made and filed waiver, this Court has made clear that R.C. 2945.05 precludes a court from conducting the hearing except by jury. See State v. Pless, 74 Ohio St.3d

333 (1996).

As in this Court’s recent decision in Kirkland, this Court must review Mr. Davis’ case in light of the United States Supreme Court’s decision in Hurst and vacate his death sentence and

remand to the trial court for a new penalty phase hearing consistent with Mr. Davis’ right to a jury trial. See State v. Kirkland, No. 2010-0854, 145 Ohio St. 3d 1455, 2016-Ohio-2807 (Table) (May

4, 2016 Case Announcements). Further, the Cuyahoga County Court of Common Pleas recently held that, even in the situation of a pre-Hurst jury waiver, upon retrial, a “Defendant has a 6th

Amendment right to have the specific findings authorizing the imposition of the sentence of death to be made by a jury.” State v. Foust, Cuyahoga C.P. No. CR-01-406021-ZA (Mar. 17, 2017

Judgment Entry).

This Court unanimously determined in Mr. Davis’ direct appeal that issues related to the jury waiver, and Mr. Davis’ request for jury sentencing, were not barred by either res judicata or law of the case. State v. Davis, 139 Ohio St.3d 122, 2014-Ohio-1615, ¶ 29. Thus, arguments supporting that defense could be raised anew.

Based on the foregoing, the appropriate remedy is to remand Mr. Davis’ case to the trial court for a new penalty phase hearing before a jury. This argument is more fully laid out in the attached memorandum.

Respectfully submitted,

/s/ Laurence E. Komp LAURENCE E. KOMP - 0060142 Attorney at Law P.O. Box 1785 Manchester, MO 63011 636-207-7330 [email protected]

Counsel for Appellant Von Clark Davis

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MEMORANDUM IN SUPPORT OF MOTION

Von Clark Davis has been on death row in Ohio since 1984. He was originally convicted by a three-judge panel of the Butler County Court of Common Pleas for aggravated murder of

Suzette Butler and sentenced to death via the electric chair in 1984. Since then, he has been resentenced to death twice, each time over his objection, by a three-panel.

In his first direct appeal, this Court affirmed Davis’s convictions but vacated his sentence of death. State v. Davis (Davis II), 528 N.E.2d 925 (Ohio 1988). In Mr. Davis’ first resentencing, he attempted withdraw his jury waiver, but the trial court denied Mr. Davis’s request. The three-judge panel ultimately re-imposed a death sentence upon Mr. Davis.

After his new death sentence was affirmed in state court, Mr. Davis sought relief in a petition for writ of habeas corpus in federal court. The Sixth Circuit unanimously held that Mr.

Davis was entitled to relief and reversed Mr. Davis’s death sentence. Davis v. Coyle (Davis X),

475 F.3d 761 (6th Cir. 2007). Two circuit judges indicated that in subsequent proceedings that

Mr. Davis should be allowed to choose to proceed before a jury. Davis X, 475 F.3d at 780.

Nevertheless, upon return to the trial court in 2009, Mr. Davis was again forced to be retried by a new three-judge panel because of his 1984 jury waiver. He was again resentenced to death.

In each instance, Mr. Davis attempted to exercise his right to a jury trial to determine the appropriate sentence, but was deprived of that right. In affirming the trial court’s denial of a jury for the new mitigation hearing in his case, this Court specifically found that while Duncan v.

Louisiana, 391 U.S. 145 (1968), held the Sixth Amendment right to a jury trial to be fundamental,

“Duncan says nothing about jury sentencing, and––as we have already noted––there is no constitutional right to be sentenced by a jury.” Davis at ¶ 42. Hurst makes plain that such a finding

3 is now wrong. Under Hurst, the Sixth Amendment “requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” Hurst, 136 S.Ct. at 619 (emphasis added).

I. Mr. Davis never waived his Sixth Amendment right to a jury for the mitigation phase of his trial.

Mr. Davis does not ask here to withdraw the jury waiver he filed more than three decades ago. Rather, he asks this Court to recognize that the waiver simply did not cover, because it could not cover, his Sixth Amendment right to a jury for the mitigation phase of his trial. As he never waived that right, he now invokes it.

When Mr. Davis waived his right to a jury during the Reagan Presidency, the only constitutional right he waived—because it was the only recognized constitutional right he was afforded by the Sixth Amendment—was a right to have a jury determine whether he was or was not guilty of the charges against him. Insofar as he may have waived a right to a jury for a possible mitigation phase, it was a waiver only of a statutory right.

He did not waive his Sixth Amendment right to a jury determination of what mitigating factors there were, or whether the aggravating circumstances outweighed them beyond a reasonable doubt, because no such right had been recognized at that time. Because it did not exist it could not be waived. And it was not.

It was not until approximately two decades after Mr. Davis was sentenced that the Supreme

Court first suggested the Sixth Amendment might apply to capital sentencing. See Ring v. Arizona,

536 US 584, 122 S. Ct. 2428, 153 L. Ed. 2d 556 (2002). That ruling followed a line of cases beginning with Apprendi v. New Jersey, 530 US 466 (2000), in which the Supreme Court has recognized that the fundamental Sixth Amendment right to a jury trial, see Duncan, 391 U.S. 145, was not limited merely to questions of guilt (or innocence) but also to the determination of facts that affected sentencing.

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Not until last term did the Court in Hurst finally establish that the fundamental and unequivocal Sixth Amendment right of a jury trial was also a right to a jury determination of capital sentencing facts: “The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” 577 136 S. Ct. at 619. While Hurst builds on a line of cases, its unequivocal statement that the Sixth Amendment right to a jury applies specifically to capital sentencing represents a dramatic change in the law.

Because Mr. Davis did not have, at the time of his trial, a recognized constitutional right to a jury determination of facts at his mitigation hearing, he could not and did not waive that right.

Moreover, R.C. 2929.06(B)––which states, “If the offender was tried by a panel of three judges, that panel or, if necessary, a new panel of three judges shall conduct the hearing”––cannot retroactively apply to Mr. Davis’ 33-year old jury waiver for at least two reasons. First, as already discussed, insofar as the waiver did not apply to the constitutional right, it was incomplete and simply cannot be retroactively enforced. Second, the statute cannot be retroactively applied to Mr.

Davis’ situation because its retroactive application to him would violate both the Sixth Amendment and, it follows, the Supremacy Clause, Article VI, paragraph 2, U.S. Constitution.

Accordingly, because there is no complete, valid, and controlling jury waiver, the jurisdiction of the trial court was limited to a mitigation phase trial only by jury. A three-judge panel may not hear the case. As the court explained in State v. Pless, 74 Ohio St.3d 333 (1996), without such a waiver, the trial court lacked jurisdiction to conduct the mitigation phase without a jury:

The requirements of R.C. 2945.05 are clear and unambiguous. The statute requires that in order to effectuate a valid waiver of the right to trial by jury, the defendant in a criminal action must sign a written waiver, and the waiver must be filed and made a part of the record in the criminal case. In the absence of strict compliance with R.C. 2945.05, a trial court lacks jurisdiction to try the defendant without a jury.

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Id. at 337 (emphasis removed). As Mr. Davis did not waive his constitutional right to a jury, the three-judge panel lacked jurisdiction to conduct the mitigation phase in his case.

II. Because the weighing of aggravating circumstances and mitigating factors is a determination involving factual findings, Mr. Davis has a right to have that finding made by a jury, not by judges.

Both federal and state courts have concluded that penalty-phase weighing determinations are factual findings that must be made by juries. Accordingly, Hurst and the cases that follow make clear that the failure to accord Mr. Davis a jury for the penalty phase of his trial is a violation of his right to a jury.

This Court’s grant of a Hurst-premised motion in Kirkland makes evident that Hurst must apply to the penalty phase of Ohio’s capital sentencing structure. The Court in Kirkland determined that the prosecutorial misconduct during the penalty phase of Kirkland’s trial was

“substantially prejudicial.” State v. Kirkland, 140 Ohio St. 3d 73, 87, 15 N.E.3d 818, 834 (2014).

After this Court conducted its own independent evaluation to determine whether Kirkland deserved a death sentence, id. at 87, Kirkland moved the Court for relief in light of the requirement in Hurst that a death sentence be based on a jury verdict, not judicial fact-finding.

This Court agreed and remanded the case for a new mitigation and sentencing hearing. See State v. Kirkland, No. 2010-0854, 145 Ohio St. 3d 1455, 2016-Ohio-2807, (Table) (May 4, 2016 Case

Announcements).

Additionally, this Court has also already established that the weighing of aggravating and mitigating circumstances is a finding of fact in Ohio. State v. Hoffner, 102 Ohio St. 3d 358,

2004-Ohio-3430 ¶ 69 (“R.C. 2929.03 charges the jury with determining, by proof beyond a reasonable doubt, the existence of any statutory aggravating circumstances and whether those aggravating circumstances are sufficient to outweigh the defendant's mitigating evidence.”)

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(citing Ohio Rev. Code § 2929.03(B) and (D)). This comports with Hurst’s holding that the weighing process is as much the province of the jury as is the finding of aggravating factors. See

136 S. Ct. at 622, 624.

Most recently, the trial court in State v. Foust agreed that “the Defendant has a 6th

Amendment right to have the specific findings authorizing the imposition of the sentence of death to be made by a jury.” State v. Foust, Cuyahoga C.P. No. CR-01-406021-ZA (Mar. 17,

2017 Judgment Entry). In particular, the court held that “regardless of the fact that defendant waived his right to a jury 16 years ago, that waiver does not supercede his right to now demand a jury for the mitigation phase of his case.” Id. The court also found that R.C. 2929.06(B) “does not prevent the defendant from demanding a jury.” Id. (noting that while R.C. 2929.06(B) “sets for the procedure for the sentencing/mitigation phase, it does not strip the defendant of his constitutional right to demand a jury”). After citing Hurst and Mr. Davis’s own case in this

Court, State v. Davis, 139 Ohio St. 3d 122, 9 N.E.3d 1031 (2014), the trial court granted Mr.

Foust’s motion for a jury for a new mitigation phase.

Just as in Foust, Mr. Davis’s waiver of his statutory right to a jury almost 33 years ago— even longer before Hurst than Mr. Foust’s 16-year-old waiver—does not supercede his right now to demand a jury. Now that Hurst has unequivocally announced his right to do so, Mr. Davis must be resentenced in order for his sentence to comply with the Sixth Amendment. And just as with the independent appellate reweighing in Kirkland, the three-judge panel that conducted its independent evaluation more than 20 years after Mr. Davis’s original sentencing was insufficient to protect his right to a jury. Rather, Mr. Davis’s case must be remanded for a new mitigation and sentencing hearing.

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Federal cases and cases originating in other states are equally adamant that a petitioner has a Sixth Amendment right to weighing by a jury in light of Hurst. In fact, the United States

Supreme Court recently vacated and remanded a death penalty case in light of Hurst. In Russell v. Alabama, 580 U.S. ___, 196 L.Ed. 2d 6 (2016), the jurors at Russell’s capital trial found the existence of an aggravating circumstance in their advisory recommendation to the court, but did not have the opportunity to weigh that circumstance against the mitigating evidence. See Russell v. State, No. CR-10-1910, 2015 WL 3448853, at *1 (Ala. Crim. App. May 29, 2015). The Court of Criminal Appeals of Alabama upheld Russell’s death sentence. The United States Supreme

Court vacated the decision and remanded “or further consideration in light of Hurst[.]” Russell,

196 L.Ed. 2d 6.

In Woldt v. People, the Supreme Court of Colorado found its state statute’s requirement that the sentencing body decide “whether the mitigating factors outweighed the aggravating factors” was “fact-finding” that rendered the defendant eligible for a death sentence and must be made by a jury. 64 P.3d 256, 265-66 (Colo. 2003) (en banc) (“We conclude that Colorado's three-judge panel capital sentencing statute. . . assigns a fact-finding role to judges that belongs to the jury under the Sixth Amendment.”).

More recently, in McLaughlin v. Steele, a Missouri Federal District Court also concluded that that “the weighing of mitigating and aggravating circumstances is a finding of fact.”

McLaughlin v. Steele, No. 4:12CV1464, 2016 WL 1106884, at *29 (E.D. Mo. Mar. 22, 2016); see also State v. Whitfield, 107 S.W.3d 253, 259-61 (Mo. 2003) (en banc) (finding Missouri’s requirement that capital jurors determine whether evidence in mitigation was sufficient to outweigh the evidence in aggravation before sentencing defendant to death was a factual finding properly made by jury). In that case, the court held that the Missouri capital punishment

8 statutory scheme violated the Sixth Amendment in light of Hurst and Ring. McLaughlin, 2016

WL 1106884, at *29. The court found, “all the jury verdict said was that the jury had not unanimously determined that mitigating facts outweighed the aggravating factor,” meaning that

“[i]t may be that eleven jurors found mitigating facts did outweigh aggravating factors[.]” Id. at

*28-29. In such a scheme, the court reasoned, “all we know from the special interrogatory is what [the jury] did not find.” Id. at *29. “[B]ecause the judge could not have known what the jury decided, he could not have relied upon it in imposing the death penalty, and so he must have made the factual finding himself.” Id. at *29. Because weighing of mitigating and aggravating circumstances is in the province of the jury, this scheme violated the Sixth Amendment. Id.

Furthermore, as this Court found in Kirkland, such a violation cannot be remedied by a remand for reweighing by a judge and not a jury. The Southern District of Ohio’s recent opinion in Chinn v. Jenkins confirms that “remand for reweighing by a single judge . . . violates the

Constitution as interpreted in Hurst.” No. 3:02-CV-512, 2017 WL 1177610, at *4 (S.D. Ohio

Mar. 30, 2017). In that case, the Ohio Court of Appeals had determined on direct review that the trial court “tainted the weighing process” when it failed to merge three aggravating circumstances into one, because all of the circumstances “arose from the same act or indivisible course of conduct.” Id. at *2 (finding that “the scales” were “impermissibly tipped . . . in favor of death”), citing State v. Chinn, No. 11835, 1991 WL 289178, *59-64 (Ohio Ct. App.,

Montgomery County Dec. 27, 1991). But the remedy it fashioned was inadequate: it remanded the case to the trial judge for his independent weighing of the now-merged aggravating and mitigating factors in violation of the Sixth Amendment right to jury. Accordingly, the federal court found that “reweighing the aggravating circumstances and mitigating factors to arrive at the conclusion that the former outweigh the latter, in a context where the jury has not been given

9 a proper opportunity to reach that conclusion, violates the Constitution as interpreted by the

Supreme Court in Hurst.” Id.1

The jurisdictions finding such violations are likely to increase because of the broad language of Hurst: “The Sixth Amendment requires a jury, not a judge, to find each fact necessary to impose a sentence of death.” Hurst, 136 S. Ct. at 619. This holding necessarily limits the Court’s more restrictive holding on the Sixth Amendment right to a jury in Clemons v.

Mississippi, 494 U.S. 738, 745 (1990) (“Any argument that the Constitution requires that a jury impose the sentence of death or make the findings prerequisite to imposition of such a sentence has been soundly rejected by prior decisions of this Court.”). Moreover, the Supreme Court in

Hurst explicitly overruled the important cases on which Clemons relies. See Hurst, 136 S. Ct. at

623, 624 (“We now expressly overrule Spaziano and Hildwin in relevant part . . . . Time and subsequent cases have washed away the logic of Spaziano and Hildwin.”). Accordingly, this

Court can no longer rely upon Clemons’ authority to cure errors with independent judicial reweighing.

1 The court also held that “retroactive application of Hurst is barred under Teague v. Lane, [489 U.S. 288 (1989)],” but the U.S. Supreme Court has not barred retroactive application, and the Ohio Supreme Court “has had no occasion to consider whether Ohio law would allow retroactive effect where Teague would not.” State v. Bishop, 7 N.E.3d 605, 610, ¶16 (Ohio Ct. App., Hamilton County 2014) (regarding the Sixth Amendment duty to advise a noncitizen client of the immigration consequences of a guilty plea). In fact, that aspect of the Magistrate Judge’s order is under review by the District Judge on objections that were supplemented in light of the recent decision by the Montgomery Court of Common Pleas to grant Chinn’s Motion for Leave to File a Motion for a New Mitigation Trial Pursuant to Criminal Rule 33 and Hurst v. Florida. See Chinn, No. 3:02-CV-512, Notice of State Court Decision and Unopposed Motion to Supplement Objections, ECF 178 (July 17, 2017); State v. Chinn, No. 1989 CR 768, Decision, Order and Entry (July 12, 2017). In any event, this Court in Kirkland applied Hurst retroactively to a case with a similar procedural history to this case, and the remand for reweighing by a three- judge panel in Mr. Davis’s case is in every respect an equal violation of the Constitution as interpreted in Hurst.

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Granting relief in this case also would not conflict with this Court’s decision in State v.

Belton, 149 Ohio St.3d 165, 2016-Ohio-1581, ¶ 55-61 concerning the constitutionality of Ohio’s death penalty scheme. Belton argued that Ohio’s statutory scheme violated the Sixth Amendment, and that a defendant had a right to sentencing by jury even if he already pleaded guilty. Id. at ¶

55. The issue at hand here is not whether Ohio’s death penalty scheme is unconstitutional under

Ring or Hurst or the effect of a guilty plea on the right to a jury at sentencing. The issue before the Court on Mr. Davis’s motion is what relief is appropriate when a petitioner must be resentenced and has not––because he could not––prospectively waived his constitutional right to a jury at resentencing. See Belton at ¶ 61 (holding that “when a capital defendant in Ohio elects to waive his or her right to have a jury determine guilt, the Sixth Amendment does not guarantee the defendant a jury at the sentencing phase of trial”) (emphasis added). To the extent Belton implies that weighing for sentencing purposes is not a fact-finding process, however, such a conclusion is superseded by the U.S. Supreme Court’s recent holding to the contrary in Jenkins v. Hutton, 137

S. Ct. 1769, 1772 (2017) (holding that, to make a claim of actual innocence, petitioner must have

“‘show[n] by clear and convincing evidence that’—if properly instructed—‘no reasonable juror would have’ concluded that the aggravating circumstances in Hutton's case outweigh the mitigating circumstances”) (citing Sawyer v. Whitley, 505 U.S. 333, 336 (1992)); see also R.C.

2929.03(D) (making repeated reference to the trial jury weighing mitigating factors against aggravating circumstances). As Mr. Davis has not waived his constitutional right to a jury, a remand for resentencing is the appropriate relief in this case.

CONCLUSION

For the reasons stated, Mr. Davis moves this Court to issue an Order vacating his death sentence and remanding the matter to the trial court to conduct a new sentencing hearing.

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Respectfully submitted,

/s/ Laurence E. Komp LAURENCE E. KOMP - 0060142 Attorney at Law P.O. Box 1785 Manchester, MO 63011 636-207-7330 [email protected]

Counsel for Appellant Von Clark Davis

CERTIFICATE OF SERVICE

I hereby certify that on July 21, 2017, a copy of the foregoing was sent via first class,

United States mail, to Ms. Lina A. Alkamhawi, Assistant Butler County Prosecuting Attorney,

Government Services Center, 315 High Street, Hamilton, Ohio 45011, Counsel for Appellant,

State of Ohio.

Respectfully submitted,

/s/ Laurence E. Komp LAURENCE E. KOMP - 0060142 Attorney at Law P.O. Box 1785 Manchester, MO 63011 636-207-7330 [email protected]

Counsel for Appellant Von Clark Davis

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