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State v. Mack

Court of Appeals of Ohio, Eighth District, Cuyahoga

November 2, 2017

STATE OF OHIO PLAINTIFF-APPELLEE
v.
CLARENCE MACK DEFENDANT-APPELLANT

         Civil Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-91-262888-A

          ATTORNEYS FOR APPELLANT John B. Gibbons, Timothy F. Sweeney

          ATTORNEYS FOR APPELLEE Michael C. O'Malley Cuyahoga County Prosecutor, Katherine Mullin Joseph J. Ricotta Assistant County Prosecutors

          BEFORE: Celebrezze, J., Keough, A.J., and Kilbane, J.

          JOURNAL ENTRY AND OPINION

          FRANK D. CELEBREZZE, JR, JUDGE

         {¶1} This cause is before us pursuant to the February 22, 2017 remand from the Ohio Supreme Court for further review of our decision released June 4, 2015, [1] in view of the court's recent decision in State v. Mack, 148 Ohio St.3d 1409, 2017-Ohio-573, 69 N.E.3d 749. The Ohio Supreme Court directed this court to consider the merits of this appeal.

         {¶2} Appellant, Clarence Mack, seeks review of the lower court's decision denying his successive petition for postconviction relief and motion for new trial. He argues that Ohio's postconviction procedures are unconstitutional, trial counsel was constitutionally ineffective, the state improperly withheld evidence at trial, and he met all the requirements for a successful postconviction petition and motion for new trial. After a thorough review of the record and law, we affirm the lower court's determination.

         I. Factual and Procedural History

          {¶3} Appellant was convicted of the 1991 murder of Peter Sanelli, for which he was sentenced to death. The evidence established that appellant shot and killed Peter while he and Thomas Sowell were stealing Peter's car on Prospect Avenue in Cleveland. A detailed recitation of the evidence adduced at trial can be found in this court's opinion that resulted from appellant's direct appeal. State v. Mack, 8th Dist. Cuyahoga No. 62366, 1993 Ohio App. LEXIS 5758 (Dec. 2, 1993) ("Mack I "). In that opinion, this court affirmed appellant's convictions and sentence, overruling the following assigned errors:

1. [Appellant] was denied due process of law when the court denied his motion for discovery and inspection;
2. The trial court denied [appellant] due process when it overruled his motion for grand jury testimony;
3. The court denied [appellant's] right to be free from unreasonable search and seizure by overruling a motion to suppress evidence seized during a warrantless arrest;
4. The trial court denied [appellant] his right to a jury from a fair, impartial cross-section of the community, when it dismissed for cause jurors who expressed concern about the death penalty but stated they could follow the law;
5. The trial court denied [appellant's] right to a jury from a fair, impartial cross-section of the community, when it did not dismiss for cause jurors who believed death was the only proper sentence for someone convicted of felony murder;
6. [Appellant] was denied his right of confrontation when a non-examining coroner, Dr. Robert Challener, testified concerning an autopsy made by a non-testifying coroner;
7. [Appellant] was denied the right to confrontation when state witness Anthony Sanelli testified about out-of-court conversations he had with Timothy Willis;
8. [Appellant] was denied due process of law when the court permitted detective Edward Lucey to testify as an expert;
9. [Appellant] was denied his right against self-incrimination by the introduction of a statement made by [him] when he had not been advised of his constitutional rights;
10. [Appellant] was denied his right to defend himself by the exclusion of impeachment testimony against Timothy Willis;
11. [Appellant's] convictions are against the manifest weight of the evidence;
12. [Appellant's] right to life is violated by his conviction for a felony murder specification that was not supported by sufficient evidence to prove his guilt beyond a reasonable doubt;
13. [Appellant] was denied his constitutional right to a fair and impartial jury at his trial by the introduction of gruesome and inflammatory photographs;
14. The court denied [appellant] his right to a fair, impartial jury when it allowed gruesome and inflammatory photographs during the penalty phase of his trial;
15. [Appellant] was denied his right to a trial by a jury by the improper jury instructions given during his trial;
16. [Appellant] was denied due process of law by the refusal to instruct on the lesser included offenses of murder and involuntary manslaughter;
17. [Appellant] was denied his right to effective assistance of counsel by counsel's failure to preserve the record;
18. [Appellant] was denied his constitutional right to a fair trial by the cumulative effect of all the errors that occurred during his trial;
19. Repeated prosecutorial misconduct denied [appellant] a fair trial;
20. [Appellant] was denied due process of law when the court improperly instructed the jury during the penalty phase;
21. [Appellant] was denied his right to effective assistance of counsel during the penalty phase of his trial;
22. [Appellant] was denied his right to a fair tribunal as the court had prepared its sentencing memorandum prior to the sentencing hearing of the trial;
23. [Appellant] was deprived of his constitutional right to a fair trial by the cumulative effect of all the errors that occurred during his penalty phase;
24. The trial court erred and denied [appellant] his constitutional right to a fair trial, by denying his motion for a new trial;
25. [Appellant] was denied due process and equal protection of the law [sic] his conviction of a death penalty specification that does not require proof of prior calculation and design for principal offenders but does require proof of prior calculation and design for an aider and abettor;
26. [Appellant's] death sentence has denied him due process under the law as the trial court erred in adopting the recommendation of the jury and in finding that the aggravating circumstances outweighed the mitigating factors;
27. Imposition of the death sentence violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Sections 2, 9, 20 and 16, Article I, of the Ohio Constitution.

         {¶4} The Ohio Supreme Court likewise affirmed and overruled appellant's 28 propositions of law argued to that court. State v. Mack, 73 Ohio St.3d 502, 653 N.E.2d 329 (1995) ("Mack II "). There, he argued the above-claimed errors and added a claim that his appellate counsel was ineffective.

         {¶5} Next, appellant filed his first postconviction relief petition on August 2, 1996. There he alleged ineffective assistance of trial counsel. The trial court denied the petition in 1996 without a hearing, but that decision did not become final until 1999 when findings of fact and conclusions of law were issued. An appeal to this court followed. State v. Mack, 8th Dist. Cuyahoga No. 77459, 2000 Ohio App. LEXIS 4948 (Oct. 26, 2000) ("Mack III "). There he argued:

(1) trial counsel should have obtained an independent ballistics test on defendant's gun when the State's evidence showed that three bullet casings at the crime scene came from his gun; (2) Mrs. Carole Mancino, one of his attorneys at trial, should have been allowed to testify regarding contradictory statements allegedly made to her by Tim Willis, the State's key witness; (3) defense counsel should have properly laid a foundation at trial for the introduction into evidence of allegedly prior inconsistent statements made by Curtis Mack and Tim Willis; and (4) defense counsel should have called four witnesses who purportedly would have called into question Willis' credibility on certain details and one witness who would have allegedly provided him with an alibi.

Id. at 3-4. This court overruled these arguments and affirmed the lower court's decision.

         {¶6} After superior courts to this one declined to hear further appeals, appellant applied to reopen his appeal, claiming that appellate counsel was ineffective. State v. Mack, 8th Dist. Cuyahoga No. 62366, 2003-Ohio-2605 ("Mack IV "). This court declined to reopen the appeal based, in part, on res judicata because appellant had previously argued in Mack II that appellate counsel was ineffective. This court found that the following arguments were barred by res judicata:

(1) The prosecutor improperly argued that the aggravated murder was an aggravating circumstance to be considered by the jury in its weighing process.
(2) The prosecutor improperly argued the victim impact statement.
(3) The prosecutor misled the jury and minimized the jury's sense of duty by arguing that the sentencing verdict was only a recommendation.
(4) The prosecutor improperly, illegally, and unconstitutionally withheld exculpatory, impeachment and/or mitigation evidence, Mr. Willis' statement, from the defense.
(5) The trial court denied his motion for discovery and inspection of police reports, including witness statements.
(6) The trial court improperly instructed the jury to reject a death sentence before considering a sentence of life in prison.
(7) The trial court improperly instructed the jury on unanimity during the sentencing phase.
(8) The trial court improperly instructed the jury regarding reasonable doubt at the sentencing phase.
(9) The trial court improperly instructed the jury on the aggravating circumstances in this case.
(10) The trial court improperly refused to give lesser included instructions for murder and/or manslaughter, and proper instructions for specific intent.
(11) The trial court failed to apply the correct standard during voir dire to challenges pertaining to juror's views about the death penalty.
(12) The trial court repeatedly erred by using the term "recommendation" in describing the jury's ...

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