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Jan 2 3 2007 Marcia J Mengel, Clerk Supreme Court Oe Ohio in the Supreme Court of Ohio

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Jan 2 3 2007 Marcia J Mengel, Clerk Supreme Court Oe Ohio in the Supreme Court of Ohio IN THE SUPREME COURT OF OHIO STATE OF OHIO, Appellee, -vs- Case No. 2004-0485 DONALD KETTERER, Appellant. Death Penalty Case On Appeal From The Court Of Common Pleas Of Butler County, Case No. 2003 CR-03-0309 APPLICATION FOR REOPENING PURSUANT TO S.CT. PRAC. R. XI, SECTION 6 ROBIN N. PIPER #0023205 DAVID H. BODIKER Prosecuting Attorney Ohio Public Defender DANIEL G. EICHEL #0008259 RANDALL L. PORTER #0005835 First Assistant Prosecuting Attorney Assistant State Public Defender Counsel of Record MICHAEL A. OSTER, JR. #0076491 Assistant Prosecuting Attorney Office of the Ohio Public Defender 8 East Long Street, 11th Floor Butler County Prosecutor's Office Columbus, Ohio 43215 Government Services Center (614) 466-5394 315 High Street, 11th Floor Fax: (614) 644-0703 Hamilton, Ohio 45011 porterrCcvond. state.oh.us (513) 887-3474 COUNSEL FOR APPELLEE COUNSEL FOR APPELLANT LE JAN 2 3 2007 MARCIA J MENGEL, CLERK SUPREME COURT OE OHIO IN THE SUPREME COURT OF OHIO STATE OF OHIO, ) ) Appellee, ) Case No. 2004-0485 ) -vs- ) ) Butler C.P. CR 2003-03-0309 DONALD KETTERER ) ) Appellant. ) APPLICATION FOR REOPENING PURSUANT TO S.CT. PRAC. R. XI, SECTION 6 Appellant Donald Ketterer moves this Court, pursuant to S.Ct. Prac. R. XI, Section 6, to reopen his direct appeal to this Court because he was denied his constitutional right to effective assistance of counsel during that appeal. A Memorandum in Support is attached and incorporated by reference. ffice of the Ohio Publid47efender 8 E. Long Street, 11th Floor Columbus, Ohio 43215-2998 (614) 466-5394 (Voice) Fax: (614) 644-0703 (Facsimile) porteiT^?opd. state.oh.us COUNSEL FOR APPELLANT 1 MEMORANDUM IN SUPPORT 1. INTRODUCTION This Court, in State v. Murnahan, 63 Ohio St. 3d 60, 584 N.E.2d 1204 (1992), and its subsequent enactment of S.Ct. Prac. R. XI, Section 6, established the procedure for raising claims of ineffective assistance of appellate counsel arising on appeals of right to this Court. For the reasons identified herein, this Court should order that Appellant's direct appeal be reopened. II. PROCEDURAL POSTURE On March 4, 2003, the Butler County Grand Jury issued a five-count indictment charging Donald Ketterer with the aggravated murder, aggravated robbery of Lawrence Sanders on February 24, 2003, the theft of Sanders' motor vehicle and the burglary and aggravated burglary of his residence [Exhibit 3]. The aggravated murder count contained three capital specifications [Id.]. On January 27, 2004, on advice of defense counsel, Detective Ketterer waived his right to a jury trial and pled guilty to the entire indictment [Exhibits 4 and 5]. On January 28, and 29, 2004 a three judge panel conducted an evidentiary hearing as to the sufficiency of the evidence to convict Appellant. At close of the hearing the three judge panel found Appellant guilty of all counts and specifications. [01/29/04, Tr. 222; Exhibit 6]. On Febniary 2-4, 2004, the three judge panel conducted the sentencing hearing. At the conclusion of that hearing the panel found that the aggravating circumstances outweighed the mitigating factors by proof beyond a reasonable doubt [Exhibit 7]. On Count 1, the panel sentenced Appellant to death and imposed the following sentences as to the other charges: Count Two, a sentence of nine years and a $2,000 fine; Count Three, a consecutive sentence of 2 nine years and a $2,000 fine; Count Four, a sentence of seventeen months to be served concurrent to the terms of imprisonment imposed on Counts Two and Three; and Count Five, a sentence of four years to be served consecutive to the other charges and a $1,000 fine [Exhibit 8]. On March 19, 2004, Donald Ketterer filed his Notice of Appeal with this Court. On October 25, 2006, this Court affirmed Appellant's convictions and sentences. State v. Ketterer, 111 Ohio St. 3d 70, 2006-Ohio-5283 [Exhibit 2] III. APPELLATE COUNSEL FAILED TO RAISE MERITORIOUS ISSUES The Due Process Clause of the Fourteenth Amendment guarantees a defendant the right to effective assistance of counsel on a criminal appeal of right. Evitts v. Lucey, 469 U.S. 387, 396 (1985). If direct appeal counsel in the in the present appeal had raised the following six propositions of law to this Court, there is a reasonable probability that the outcome of this appeal would have been different. With respect to those issues that trial counsel failed to adequately preserve for appellate review, direct appeal counsel should have raised the issues both in terms of plain error and ineffectiveness of trial counsel. PROPOSITION OF LAW NO. I AN INDIVIDUAL'S CONSENT TO THE SEARCH OF HIS PERSONAL IS ONLY CONSTITUTIONALLY FIRM IF IT IS AN VOLUNTARY, KNOWING AND INTELLIGENT DECISION. Fourth and Fourteenth Amendments. On February 25, 2003 at 7:30 p.m. the investigating officer arrested Appellant [4.03.03, Tr. 93-94]. At the time of his arrest, he was highly intoxicated. He had been drinking at a bar from at least 4:00 p.m. unti17:00 p.m. [1.28.04, Tr. 29-30, 40, 65]. Officer Cifuentes and Detective Collins both testified that Appellant was intoxicated at the time of his arrest and interrogation. [4.03.03, Tr. 359-61; 4.03.03, Tr. 41]. 3 Detective Rogers testified that when Appellant was approached by the arresting officers, he was talking about crack-cocaine. [Id. at 134]. Appellant suffers from bipolar disorder. [2.02.04, Tr. 17]. Appellant told the interrogating officers that he consumed his prescribed medication (Klonopin)with alcohol. [4.03.03 Tr. 165; State's Hearing Exhibit 7]. Afler the detectives arrested him, Appellant executed two consent forms giving the officers permission to search his coat, bag and his residence. [4.03.03, Tr. 9]. A consent to search is only valid if it was freely and voluntarily given. Schneckloth v. Bustamonte, 412 U.S. 218, 219 (1973). As a result of his intellectual limitations, intoxication and mental illnesses, Appellant suffers from an inability to appreciate the implications of his actions and an inability to understand and appreciate the significance of any waiver of his constitutional rights. Consequently, Appellant did not knowingly and intelligently wiave his rights as guaranteed by the Fourth and Fourteenth Amendments. PROPOSITION OF LAW NO. II AN INDICTMENT MUST CONTAIN ALL OF THE ELEMENTS OF THE OFFENSES CONTAINED THEREIN. Fifth, Sixth and Fourteenth Amendments. The indictment charged Appellant with the substantive offense of Aggravated Burglary and that offense also served as one of the capital specifications. [Exhibit 3]. For the indictment to properly charge the offense of Aggravated Burglary, it needed to allege that Appellant had inflicted, attempted to inflict or threatened to inflict serious physical harm. O.R.C. 2911.01 (A)(3). The indictment only alleged physical harm. [Exhibit 3] Appellate counsel failed to raise this issue in their initial briefing. [Exhibit 9]. Counsel recognized their error and requested leave to submit briefing on this issue. [Exhibit 10]. This Court denied that motion. [Exhibit 11]. As a result, this Court did not address this issue. 4 The error in the indictment did not provide Appellaut with the proper notice. In re Oliver, 333 U.S. 257, 273; Cole v. Arkansas, 333 U.S. 196, 201 (1948). In addition the error deprived appellant of his right to have the trier of fact convict him of every essential element of the offense and specification by proof beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979). PROPOSITION OF LAW NO. III A DEFENDANT IS DENIED THE RIGHT TO EFFECTIVE ASSISTANCE OF COUNSEL WHEN THE ATTORNEY WHO REPRESENTS HIM ALSO REPRESENTS A CRUCIAL DEFENSE WITNESS. Sixth, Eighth and Fourteenth Amendments. One of the two attorneys that represented Appellant at trial, Gregory Howard, had previously been appointed to represent Tim Engle. State v. Engle, Butler C.P. No. CR 2002-11- 1985 [Exhibit 12]. Through out his representation of Appellant in this capital case, Attorney Howard continued to represent Tim Engle pursuant to that appointment. Prior to trial defense counsel submitted, for purposes of DNA testing, the hairs that were found in both hands of the victim and buccal swabs taken from Appellant . Celhnark Laboratory determined that the hairs found in the liands of the victim did not belong to Appellant. [Exhibit 13]. On January 26, 2004, the prosecution provided notice that Tim Engle would testify against Appellant. [Exhibit 14]. Defense counsel subsequently chose not to place the DNA test results into evidence because the prosecutor intended to call Inmates Engle and Jasper to rebut the DNA results. [Tr. 229-230]. The Sixth An-iendment guarantees the accused the right to counsel. Powell v. Alabama, 287 U.S. 45, 58 (1932). This guarantee includes representation that is free of conflicts of interest. Glasser v. United States, 315 U.S. 607 (1942). Attomey Howard suffered a conflict because his assessment of his other client's credibility impacted on the decision of whether to 5 place the DNA results into evidence. Attorney Howard could not have cross examined his other client, Tim Engle. That conflict was imputed to co-counsel Chris Pagan. After the three judge panel sentenced Appellant to die, Attorney Howard did withdraw from his representation of Mr. Engle because "a conflict of interest has developed whereby he is unable to continue in his representation of the defendant". [Exhibit 15]. By that time it was too late to withdraw, at least with respect to Appellant. PROPOSITION OF LAW NO. IV A PROSECUTOR IS REQUIRED TO DISCLOSE IN A TIMELY MANNER PRIOR TO TRIAL, ALL EXCULPATORY EVIDENCE, INCLUDING EVIDENCE THAT IMPEACHES HIS WITNESSES. Fifth, Sixth, Eighth and Fourteenth Amendments.
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