From the Bench

Effective appellate counsel

By Justice Paul Pfeiffer - For The Register-Herald

In 1985, Gina Tenney – a 19-year-old Youngstown State University student – was murdered. The crime went unsolved for 22 years, until DNA evidence led police to arrest Bernie Adams for her murder. Adams was convicted of aggravated murder in 2007 and sentenced to death. In 2015, we – the Ohio Supreme Court – affirmed his conviction, but vacated the death sentence.

Before that decision was released, Adams filed an application to reopen his direct appeal with the court of appeals. This application was denied, but then Adams filed an appeal with our court.

An application to reopen the appeal of a conviction will be granted if there is a genuine issue as to whether the person applying was denied effective assistance of appellative counsel. In other words, an appeal can be reopened if there’s a possibility that the applicant’s attorney did not offer effective assistance during the appeals process.

To succeed on that type of application, a petitioner must establish that his attorney’s performance fell below an objective standard of reasonable representation and that he was prejudiced by the deficient performance. Were any of his arguments valid? Let’s look at a few of them.

At Adam’s trial, Dr. Humphrey Germaniuk testified as the state’s expert forensic pathologist and substitute witness in place of the coroner who performed Gina’s autopsy. Adams argued that the admission of the coroner’s report without the testimony of the doctor who prepared the report violated his rights under the Confrontation Clause of the United States Constitution’s Sixth Amendment.

The Confrontation Clause states that in “all criminal prosecutions, the accused shall enjoy the right…to be confronted with the witnesses against him…” Adams argued that his lawyers were ineffective for failing to raise this issue during his appeal.

At the time that he filed his application, the law surrounding the admissibility of autopsy reports prepared by nontestifying medical examiners was unsettled. However, in intervening time, our court has ruled on that issue.

We have established that “an autopsy report that is neither prepared for the primary purpose of accusing a targeted individual nor prepared for the primary purpose of providing evidence in a criminal trial is nontestimonial.” Under the Rules of Evidence that govern criminal trials, the admission of such a report into the evidence at a trial “as a business record does not violate the defendant’s Sixth Amendment confrontational rights.”

Adams argued that the state could have called the coroner who had performed the autopsy but chose not to do so. Even assuming this is true, the availability of the original coroner is irrelevant. The Evidence Rule in question expressly states that evidence within the scope of the rule is admissible “even though the declarant is available as a witness.”

Alternatively, Adams argued that it was a Confrontation Clause violation to allow Germanuik to testify about the contents of the report or to offer his own opinions. But because the report is itself admissible, Germanuik’s testimony as to its contents is not a Confrontation Clause problem.

As for Germanuik’s own opinion, “such testimony constituted his original observations and opinions and did not violate the Confrontation Clause, because he was available for cross-examination regarding them.”

We therefore concluded that the failure to challenge Germanuik’s or the autopsy report was not ineffective representation, because any such challenge would have failed as a matter of law.

Adams raised another issue on the conduct of the judge at his trial. Before Adam’s murder trial the court had conducted a pretrial hearing to consider the admissibility of testimony from Gina’s friends concerning statements Gina had made before her death about Adams and her fearful state of mind. Without respect to testimony about Gina’s general state of mind, “the judge decided (without objection from Adam’s attorneys) that he alone would pose questions to the witnesses.”

Adams maintained that he was prejudiced by his trial attorney’s failure to object to the trial judge impermissibly interjecting himself into the proceedings in a way that was overly favorable to the state. But we agreed with the court of appeals that Adams was not prejudiced despite the absence of an objection. We therefore rejected his argument.

Adams also faulted his trial attorneys for failing to object to two prejudicial statements made by Detective William Blanchard at trial. First, when asked whether he had previously testified in this case, Blanchard volunteered that he had testified at two “suppression hearings.” (A suppression heAring is when the trial court considers motions to suppress certain evidence.)

Second, when asked whether he had had any conversations with Adena Fedelia, Adam’s girlfriend, after January 3, 1986, Blanchard replied, “Not about this case.” Adam’s attorneys didn’t object to either statement.

Blanchard also mentioned the name of the victim in an unrelated rape that Adams had been convicted of committing. But Blanchard didn’t say anything other than the victim’s name; and he didn’t indicate that she was a rape victim. At that point, Adam’s attorney’s objected and requested a mistrial, based on all three remarks.

During Adam’s first appeal, we upheld the denial of motion for mistrial. In doing so, we specifically held that “Blanchard’s comment about talking to Fedelia was too ambiguous to be prejudicial.” Likewise, we held that the “isolated reference” to suppression hearings was not prejudicial, because Blanchard never stated or insinuated that the motion had been granted and that evidence was being withheld from the jury.

In the application to reopen the appeal, Adams faulted his trial attorneys for not objecting to Blanchard’s remarks at the time they were made. Again, the court of appeals correctly saw no reason to reopen the appeal because it has addressed the merits of the objections in the context of reviewing the trial court’s denial of the motion for mistrial.

We ultimately concluded – by a six-to-to vote – that all of Adam’s claim of ineffective assistance of appellate counsel lacked merit, so his application to reopen his appeal was denied and his conviction for aggravated murder remains unchanged.

Effective appellate counsel

By Justice Paul Pfeiffer

For The Register-Herald