John R. Hicks v. TERRY COLLINS, Warden

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2004 FED App. 0315P (6th Cir.)
File Name: 04a0315p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
JOHN R. HICKS,
Petitioner-Appellant,
v.
TERRY COLLINS, Warden,
Respondent-Appellee.
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No. 01-3764
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 94-00177—Herman J. Weber, District Judge.
Argued: March 9, 2004
Decided and Filed: September 15, 2004
Before: SILER, DAUGHTREY, and CLAY, Circuit
Judges.
_________________
COUNSEL
ARGUED: Marc D. Mezibov, MEZIBOV & JENKINS,
Cincinnati, Ohio, for Appellant. Charles L. Wille,
ATTORNEY GENERAL’S OFFICE OF OHIO, CAPITAL
CRIMES SECTION, Columbus, Ohio, for Appellee.
ON BRIEF: Marc D. Mezibov, MEZIBOV & JENKINS,
Cincinnati, Ohio, Jarrod M. Mohler, ROBBINS, KELLY,
2 Hicks v. Collins No. 01-3764
PATTERSON & TUCKER, Cincinnati, Ohio, for Appellant.
Charles L. Wille, ATTORNEY GENERAL’S OFFICE OF
OHIO, CAPITAL CRIMES SECTION, Columbus, Ohio, for
Appellee.
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.
_________________
OPINION
_________________
SILER, Circuit Judge. Petitioner John R. Hicks was
convicted after a trial by jury of two counts of aggravated
murder, Ohio Revised Code (O.R.C.) § 2903.01(B), and one
count of aggravated robbery, O.R.C. § 2911.01. He was
sentenced to death. O.R.C. §§ 2929.04(A)(3), (A)(5), and
(A)(7). After unsuccessful direct appeals and state post-
conviction proceedings, Hicks filed a petition for a writ of
habeas corpus in accordance with 28 U.S.C. § 2254. The
district court denied the petition and he appeals to this court.
For the following reasons, we AFFIRM.
I. BACKGROUND
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
Green. Hicks gave the VCR to a drug trafficker as security
for a cocaine purchase. After consuming the cocaine, Hicks
realized he had no money with which to redeem the VCR.
Recognizing that the missing VCR would lead to problems
with Ghitana, he decided to rob Maxine Armstrong, who was
Ghitana’s mother and his mother-in-law. He knew that “if
[he] robbed her he would have to kill her.” State v. Hicks,
538 N.E.2d 1030, 1032 (Ohio 1989). Hicks went to

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

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

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No. 01-3764 Hicks v. Collins 7
are not defaulted because appellate counsel will rarely assert
his own ineffectiveness at trial. See Buell v. Mitchell, 274
F.3d 337, 348 n.3 (6th Cir. 2001).
Hicks had the same counsel on direct appeal, so his
ineffective trial counsel claims are cognizable; however, he
has procedurally defaulted his other claims regarding
ineffective appellate counsel and prosecutorial misconduct
(other than the jury-as-community-conscience claim) because
he did not assert the claims on direct appeal. Seeking to
excuse this default, Hicks naturally argues ineffective
assistance of appellate counsel for failing to raise the
defaulted claims on direct appeal. Unfortunately for Hicks,
he has procedurally defaulted his ineffective appellate counsel
claims as well. While defendants may assert ineffective
assistance of counsel as cause to excuse procedural default,
the ineffective assistance excuse “can itself be procedurally
defaulted.” Edwards v. Carpenter, 529 U.S. 446, 453 (2000);
Monzo, 281 F.3d at 575-578. A strikingly on-point case,
Coleman v. Mitchell, 244 F.3d 533 (6th Cir. 2001), shows that
Hicks has procedurally defaulted his ineffective appellate
counsel claim and, as a result, defaulted all other claims upon
which he asserts ineffective appellate counsel as cause.
In Ohio, pursuant to State v. Murnahan, 584 N.E.2d 1204
(Ohio 1992), ineffective assistance of appellate counsel
claims must be raised in a delayed motion for reconsideration
to the direct appeal court, not in a petition for state post-
conviction relief. Coleman, 244 F.3d at 539. In April 1991,
Hicks incorrectly asserted his ineffective appellate counsel
claim in his petition for post-conviction relief, and the post-
conviction court dismissed the claim pursuant to the appellate
court’s rule that ineffective appellate claims should be
asserted in reconsideration motions. The Ohio Supreme
Court subsequently adopted that rule in Murnahan in
February 1992. Hicks waited seven months after Murnahan
(September 1992) to file a delayed reconsideration application
– the correct motion for an ineffective appellate counsel
claim. The Ohio Court of Appeals denied the reconsideration
8 Hicks v. Collins No. 01-3764
application because Hicks failed to show good cause to justify
his delay, i.e., Hicks filed his reconsideration application too
late.
As a result, the Murnahan rule requiring ineffective
appellate counsel claims to be filed in reconsideration
applications rather than post-conviction petitions stands as an
independent state ground barring this court from considering
Hicks’s claim. Hicks asserts the same defense we rejected in
Coleman, namely, that the Ohio courts were split on the
correct procedure before Murnahan. However, as in
Coleman, since the rule was well settled in the court of
appeals where Hicks appealed that ineffective appellate
counsel claims should be asserted in reconsideration
applications, the rule represents an established adequate and
independent state ground. Coleman, 244 F.3d at 539-40.
Thus, Hicks has procedurally defaulted his ineffective
appellate counsel claim and, in turn, all the claims he failed to
bring on direct appeal because he cannot assert it as cause.
In sum, all of Hicks’s claims not directly asserted on appeal
are procedurally defaulted because he procedurally defaulted
his ineffective assistance of appellate counsel claim and
cannot assert it as cause. The exception exists for all claims
of ineffective trial counsel because the same counsel served
as trial and appellate counsel.
DISCUSSION
A. Ineffective Assistance of Trial Counsel
1. Cocaine Expert
Hicks first alleges that he was denied the effective
assistance of counsel during the guilt phase of his trial
because his counsel failed to consult with or obtain an expert
on the effects of cocaine on the human body. Prior to trial,
Hicks’s counsel, Dominic Perrino and James Rueger, filed a
notice of intent to rely on the defense of not guilty by reason

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No. 01-3764 Hicks v. Collins 9
2O.R.C. § 2929.024 provides that if an indigent defendant is charged
with aggravated murder, the court in its discretion may authorize defense
counsel to ob tain an expert if necessary for the proper presentation of the
defendant’s trial or sentencing hearing. The payment for the expert’s fees
and expe nses are to be made in the same manner that payment for
appointed counsel is made pursuant to Chapter 120 of the Ohio Revised
Code.
of insanity. Hicks had not been evaluated prior to the filing
of this notice and none of the three experts who subsequently
evaluated him concluded that he was insane on the date of the
murders. As Hicks’s counsel realized during pretrial
investigation that his cocaine ingestion could affect the guilt
and penalty phases of his trial, they applied for the
appointment of an expert witness pursuant to O.R.C.
§ 2929.024.2 Hicks’s counsel anticipated the need for an
expert on the pharmacological, physiological, and psychiatric
effects of cocaine, specifically as it related to his ability to
form intent to commit aggravated murder and any diminished
mental capacity for mitigation purposes. The trial court
advised Hicks’s counsel that if they came forward with such
an expert witness the request would probably be granted. The
trial court deferred ruling on Hicks’s motion, specifically
“taking it under submission pending further evidence, further
argument from defense counsel.” Nevertheless, Hicks’s
counsel neither renewed the motion to appoint an expert nor
obtained an expert, instead relying upon the testimony of Dr.
Nancy Schmidtgoessling, a court-appointed psychologist.
Dr. Schmidtgoessling’s testimony on Hicks’s behalf was
less than favorable. Although Dr. Schmidtgoessling did not
hold herself out as a “cocaine expert,” she had been directed
to evaluate Hicks regarding his competency and to determine
if he was insane on the date of the crimes. While she testified
that Hicks’s criminal actions were consistent with cocaine
intoxication and that he was probably impaired, she
nonetheless opined that he acted with purpose and intent.
According to Hicks, Dr. Schmidtgoessling inaccurately
testified as to the following: voluntary cocaine intoxication
10 Hicks v. Collins No. 01-3764
does not meet the definition of “disease or defect”; Hicks
understood his actions; the duration of cocaine intoxication
peaks at about fifteen to twenty minutes; and injection of
cocaine, rather than inhalation, leads to a quicker reaction,
although “the intensity or symptoms are equally the same”
whether injecting or inhaling it. Dr. Schmidtgoessling’s
testimony was damaging to Hicks’s case because it
significantly narrowed the time in which he could have been
acting under the influence of cocaine. Because Hicks’s
counsel were surprised by Dr. Schmidtgoessling’s testimony
and “as to the affect that she testified as her qualifications as
to what cocaine affect has on a person, how long lasting it
was,” they attempted to use Dr. Ross Zumwalt, the Hamilton
County Coroner, as a “cocaine expert” during cross-
examination. Dr. Zumwalt’s testimony did not benefit Hicks.
The district court denied Hicks’s habeas relief on his claim of
ineffective assistance of trial counsel because he feigned
mental illness and refused to cooperate with his counsel,
concluding that Hicks’s “failure to cooperate had an adverse
impact on the ability of his defense counsel to conduct his
defense and that the decision to use Dr. Schmidtgoessling as
a defense expert was a tactical decision by counsel and
appropriate under the circumstances.”
For Hicks to establish a violation of the Sixth Amendment
right to counsel, he must satisfy two components. First, he
must show that his counsel’s performance was deficient,
which “requires showing that counsel made errors so serious
that counsel was not functioning as the counsel guaranteed
[him] by the Sixth Amendment.” Wickline v. Mitchell, 319
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[,]
. . . [which] requires showing that counsel’s errors were so
serious as to deprive [him] of a fair trial, a trial whose result
is reliable.” Id. (quoting Strickland, 466 U.S. at 687). “To
demonstrate that counsel’s performance was deficient,
[Hicks] ‘must show that counsel’s representation fell below
an objective standard of reasonableness.’” Roberts v. Carter,

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No. 01-3764 Hicks v. Collins 11
3Hicks claims Parran to be a “cocaine expert” because he allegedly
“devotes approximately 70% of his time to the treatm ent of ind ividuals
who are ad dicted to cocaine and o ther illegal substances.”
337 F.3d 609, 614 (6th Cir. 2003) (quoting Strickland, 466
U.S. at 688). To demonstrate prejudice, he “must show that
there is a reasonable probability that, but for counsel’s
unprofessional errors, the result of the proceeding would have
been different.” Wickline, 319 F.3d at 819 (quoting
Strickland, 466 U.S. at 694). Our “[r]eview of counsel’s
performance is highly deferential and requires that [we]
‘indulge a strong presumption that counsel’s conduct falls
within the wide range of reasonable professional assistance.’”
Id. (quoting Strickland, 466 U.S. at 689). “Both the
performance and prejudice components of the ineffectiveness
inquiry are mixed questions of law and fact entitled to de
novo review.” Combs v. Coyle, 205 F.3d 269, 278 (6th Cir.
2000).
On habeas review at the evidentiary hearing before the
district court, Hicks offered the testimony of Dr. Theodore
Parran, an expert on the effects of cocaine use.3 Dr. Parran
observed that Hicks suffered from cocaine psychosis, which
is an extreme psychotic state brought about by frequent
cocaine binging, at the time of the crimes. According to Dr.
Parran, Dr. Schmidtgoessling’s testimony was erroneous and
the jury was misinformed as to Hicks’s condition. In fact, he
viewed her testimony as the “primary information which was
inaccurate[.]” Rueger testified at the evidentiary hearing that
the defense’s decision not to employ a “cocaine expert” was
not the result of any tactical decision; rather, it was a matter
of economics because he did not believe the trial court “was
going to appoint anybody that wasn’t from around [the
Cincinnati] area.” In his deposition, Perrino testified that he
was “somewhat taken aback and surprised” by Dr.
Schmidtgoessling’s testimony regarding the duration of the
cocaine’s influence on Hicks and that he “was unaware prior
to trial as to the duration[] because we did not have a witness
12 Hicks v. Collins No. 01-3764
4As of October 27, 2000, however, “[v]oluntary intoxication may not
be taken into consideration in determining the existence of a mental state
that is an element of a criminal offense.” O.R.C. § 2901.21(C).
to testify as to the effects of cocaine and the duration it
would” have upon a person. Dr. Schmidtgoessling conceded
that, to the best of her recollection, she did not expect to
render an opinion on anything other than Hicks’s competency
and insanity.
“In Ohio, evidence of voluntary intoxication ‘may be
considered in determining whether an act was done
intentionally or with deliberation and premeditation.’”
Combs, 205 F.3d at 288 (quoting Ohio v. Fox, 428 N.E.2d
410, 412 (Ohio 1981)); see also State v. Wolons, 541 N.E.2d
443, 446 (Ohio 1989).4 In Combs, this Court was presented
with a similar claim of ineffective assistance of counsel.
Combs’s counsel employed one expert witness, Dr. Roger
Fisher, a clinical psychologist, to testify as to Combs’s drug
and alcohol abuse and his intoxication on the day he
committed two aggravated murders. Although Combs’s
counsel intended to elicit testimony that Combs was incapable
of acting with purpose or intent due to his diminished
capacity, Dr. Fisher opined during cross-examination that
Combs acted purposefully and intentionally even though he
was intoxicated. Identically, Hicks claims that his counsel’s
failure to anticipate, avoid, or prepare for Dr.
Schmidtgoessling’s damaging testimony constituted
ineffective assistance of counsel. Moreover, as in Combs, the
prosecution highlighted the inconsistencies between the
defense’s theory of voluntary cocaine intoxication and Dr.
Schmidtgoessling’s testimony during its closing argument.
The district court, however, differentiated Combs from
Hicks’s claim “because Dr. Parran could not have testified
that [] Hicks’s use of cocaine negated his ability to act
purposely, his input would not have altered the results of the
trial and defense counsel would have been subjected to the
same criticism which carried the day in Combs . . . .”

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No. 01-3764 Hicks v. Collins 13
Despite any similarity to Combs, Hicks was not denied the
effective assistance of counsel. First, there was
overwhelming evidence of Hicks’s guilt; therefore, he cannot
demonstrate “that there is a reasonable probability that, but
for counsel’s errors, the factfinder would have had a
reasonable doubt about his guilt.” Id. at 290 (citing
Strickland, 466 U.S. at 695). Accordingly, Hicks failed to
satisfy the prejudice prong of Strickland.
Second, the record indicates that Hicks was a malingerer
who refused to assist his counsel in the preparation of his
defense. For example, prior to trial Perrino informed the trial
court that defense counsel needed a “cocaine expert” because
they did “not have assistance from our client except that we
know from certain things that he indicated in statements that
were given to us to the ingestion of cocaine and what its
effect may have on him.” Furthermore, although Rueger
observed that Hicks was “fully communicative” during their
first meeting, Hicks later “went into a shell, . . . wouldn’t talk,
wouldn’t look at you, just stared off in the distance and kind
of rocked back and forth.” Rueger also insisted that Hicks’s
lack of cooperation and participation in his own defense
adversely affected his counsel’s preparation of the case.
Rueger cited a specific instance in which he and Perrino
“couldn’t even communicate or ask [Hicks] whether or not
the notes that the Police Officers in Cincinnati had taken . . .
were consistent with what he remembered talking to them
about.” Dr. James Reardon, a counseling psychologist who
testified during the evidentiary hearing on behalf of Warden
Collins, insisted that “Dr. Schmidtgoessling was prevented
from administering and interpreting any psychological tests”
upon Hicks due to his feigning mental illness; Dr.
Schmidtgoessling could not obtain “any kind of coherent
history or representation of the circumstances and facts of the
case based on [] Hicks’s behavior”; and by reason of Hicks’s
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.”
14 Hicks v. Collins No. 01-3764
Third, and most importantly, even if the jury had been
informed of cocaine psychosis and its effects, the result of the
proceeding would not have been different. Like Dr.
Schmidtgoessling, Dr. Parran testified that Hicks’s actions
were purposeful and that “certainly people can do purposeful
actions when they’re involved in cocaine psychosis.”
Additionally, Dr. Parran could not testify that Hicks was
insane at the time he committed the offenses. The decision to
employ Dr. Schmidtgoessling was a direct result of Hicks’s
refusal to cooperate with his counsel. See Coleman, 244 at
545 (death penalty petitioner was not subjected to ineffective
assistance of counsel where he did not cooperate with his
counsel concerning the investigation and identification of
mitigating evidence, imposed restrictions upon his counsel,
and refused to submit to further psychological or psychiatric
testing). A fair assessment of counsel’s performance requires
that we “evaluate [their] conduct from counsel’s perspective
at the time.” Combs, 205 F.3d at 278 (quoting Strickland,
466 U.S. at 690).
2. Prejudicial Comments
Hick next claims that his counsel was ineffective for failing
to object to (1) “the prosecution’s statements that the
community and state of Ohio mandate the death penalty”
against him; (2) the prosecution’s representations that “they
had already determined that Hicks was guilty, and that death
was the only appropriate punishment”; (3) statements made
by both the trial court and prosecution during voir dire that
the jury’s decision on the question of life or death was merely
a “recommendation”; and (4) the prosecution’s “incorrect and
misleading statements about the legitimacy of the defense of
not guilty by reason of insanity.” Hicks’s objections on these
points are without merit. In each instance, Hicks either
mischaracterizes the objectionable statement, cites a statement

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No. 01-3764 Hicks v. Collins 15
5For exam ple, H icks objected to the prosecution’s reference to the
jury’s penalty determination as a “recommend ation” and moved for a
mistrial. The trial court sustained the objection but denied the mistrial
motio n.
6Examples of such statements are the prosecution’s voir dire
questions regarding the validity of the insanity and intoxication d efenses.
The statements were not improper, particularly considering that there was
evidence that Hicks had feigned insanity and was malingering.
to which a proper objection was lodged,5 or objects to a
statement that was not improper.6
A second subset of Hicks’s “failure to object” claims
centers on the prosecution’s closing argument. Specifically,
Hicks argues that his counsel was ineffective for failing to
object to (1) the prosecution’s comments about the penalty
phase; (2) victim impact statements; (3) the prosecution’s
expression of its opinion respecting Hicks’s guilt and the
statement that “[t]here is no doubt in the defense’s mind that
the defendant was guilty”; and (4) the prosecution’s statement
that even the trial court did not believe Hicks’s defenses. A
review of the record reveals that these objections are wholly
groundless, with the exception of the prosecution’s comment
about the defense’s state of mind. On its face, this comment
is inappropriate. A review of the context in which it was
made, however, illustrates that it was harmless. The comment
was made in the course of the prosecution’s explanation that
not even the defendant contested that he was the one who had
murdered the victims. Therefore, the statement was hardly
prejudicial.
Hicks also asserts two other claims of ineffective assistance
during the guilt phase. First, he argues that counsel was
ineffective for failure to preserve records of side-bar
conferences. Second, Hicks argues that his counsel was
ineffective because they repeatedly referred to his crimes as
“dastardly” and “heinous.” The first claim is without merit
because Hicks makes no attempt to show how the allegedly-
16 Hicks v. Collins No. 01-3764
faulty record-keeping prejudiced him – he does not explain
how the proceedings would have been different. The second
claim is without merit because counsel’s depiction of his
client’s crimes as “dastardly” and “heinous” may well have
been a tactical decision designed to encourage the jury to
spare Hicks’s life by convincing it that he recognized the
brutality of his crimes. The wisdom of using such adjectives
is certainly subject to challenge in hindsight, but it is
precisely this sort of hindsight-driven judgment that
Strickland forbids.
3. Mitigation
Hicks further claims that his trial counsel was ineffective in
failing to introduce evidence of his abusive upbringing,
problems in school, poor self-esteem, and history of drug and
alcohol abuse in mitigation. Arguably his most compelling
contention is that counsel should have, at a minimum, called
some sort of expert witness instead of relying on the
testimony of his mother and six former co-workers, who
generally testified that Hicks was a “good guy” and that his
crimes were out of character. At the evidentiary hearing
before the district court, Dr. Susan Shorr, a mitigation
specialist, and Dr. Julia Hawgood, a clinical psychologist,
opined that this failure to call a psychiatric or psychological
expert rendered counsel’s mitigation efforts ineffective.
Under the Strickland standard, however, Hicks’s counsel
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
illness.” It is significant that Dr. Shorr, who testified at the
evidentiary hearing that counsel’s mitigation strategy was
substandard, “did not consider, in making her opinion, the
fact that Mr. Hicks refused to cooperate with his counsel.”
Similarly, Dr. Hawgood, whose testimony was to the same
effect, conceded that “Mr. Hicks admitted [to her, in the
course of her evaluation of him] that prior to and during his

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No. 01-3764 Hicks v. Collins 17
7This conc ession is particularly damaging to H icks’s spe cific
contention that counsel was ineffective for failing to call a psychologist
or other expert during the mitigation phase because, had counsel in fact
called such an expert, the prosecution could have introd uced this
concession in rebuttal. As it was, the jury was not privy to this damning
information.
8Shirley Leahy, a clinical social worker who interviewed Hicks prior
to trial, aided Dr. Schmidtgoessling in constructing H icks’s soc ial history.
trial he had feigned mental illness.”7 This singular fact – that
Hicks did little to participate in his own defense because he
was faking a mental illness – distinguishes this case from
those Hicks relies upon and effectively forecloses a finding
that counsel was ineffective.
Hicks further argues that his counsel was ineffective in
failing to present his history of sexual abuse to the jury. He
alleges that his counsel “entirely overlooked the detailed
information concerning [his] background that Shirley Leahy
had compiled for the court psychiatric clinic.”8 Leahy
compiled a detailed report concerning Hick’s background
which, although her report was available to Hicks’s counsel
for mitigation purposes, was never used. Hicks also claims
that while many of his relatives were prepared to testify
during the mitigation phase of his trial, none was called to do
so.
Despite Hicks’s contentions, his counsel was not
ineffective. Hicks was uncooperative and never
communicated any history of sexual abuse to his counsel.
Although Perrino reviewed Leahy’s report, defense counsel’s
failure to introduce the report or call Leahy as a witness was
probably a tactical decision. For instance, in the “Sexual
History” section of Leahy’s report, she documented that
Hicks was molested by a fourteen-year-old male cousin when
he was eight years old. In addition, Hicks confided in Leahy
that he engaged in homosexual prostitution as a teenager and
after he married his first wife. If Leahy’s report had been
18 Hicks v. Collins No. 01-3764
admitted or she had testified, the jury would have learned this
information. In all likelihood, this fact would have been
unfavorable to Hicks. Furthermore, while Hicks was
molested by a juvenile when he was a child, Hicks molested
Brandy, postmortem, when he was an adult. Therefore,
defense counsel made a tactical decision to keep this
potentially-damaging information from the jury.
We “reject[] [Hicks’s] claim that the failure of his counsel
to investigate mitigating evidence amounted to ineffective
assistance because [Hicks was] uncooperative . . . .” Martin
v. Mitchell, 280 F.3d 594, 612 (6th Cir. 2002) (citing
Coleman, 244 F.3d at 545-46). There is an “extremely high
standard that must be met for counsel’s representation in the
penalty phase to be considered constitutionally inadequate[,]”
Mason v. Mitchell, 320 F.3d 604, 643 (6th Cir. 2003) (Boggs,
J., dissenting), and Hicks has fallen short of that standard.
4. Penalty Phase
The overwhelmingly majority of Hicks’s panoply of
penalty phase ineffective assistance claims relate to counsel’s
perceived ineffectiveness in failing to object to certain
comments made by the prosecution during closing arguments.
Generally, these claims are without merit and, dependent as
they are on the merits of the underlying prosecutorial
misconduct claims, are addressed elsewhere.
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
the prosecutor: “I think that is one of the primary
considerations you should make. In twenty or thirty years
what happens if [Hicks] does this again?” Even this claim
ultimately fails – assuming that such a comment is

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No. 01-3764 Hicks v. Collins 19
9The case law, albeit scant, suggests that such commentary may be
acceptable. See., e.g., An drew s v. De land , 943 F.2d 1162 (10 th Cir.
1991), overruled in different p art by Da niels v. U nited States, 254 F.3d
1180 (10th Cir. 2001 ); And rews v. Barnes, 743 F. Supp. 1496 (D. Utah
199 0).
inappropriate,9 it certainly does not rise to the level of
prosecutorial misconduct. As the evidence against Hicks was
more than substantial, see Bowling v. Parker, 344 F.3d 487,
512-13 (6th Cir. 2003), and Hicks’s counsel objected to this
statement, Hicks received the effective assistance of counsel.
Hicks also advances two claims arising from the acts of his
own counsel. First, Hicks finds fault with one of his
attorney’s statements to the jury regarding Hicks’s parole
eligibility. Second, Hicks objects to counsel’s statement in
closing that “there is a special hell in Dante for those
righteous people that have to mete out justice.” Both claims,
however, are without merit. As to the former, it is difficult to
perceive how counsel’s statement that Hicks would not be
eligible for parole until he was at least eighty years old
prejudiced him in any way. At a minimum, such a statement
can be said to fall with the ambit of Strickland’s “tactical
decisions,” which are “virtually unchallengeable.” As to the
second objection, Hicks’s counsel was simply responding to
earlier Biblical references made by the prosecution. Such
assistance may not be said to be “ineffective.”
5. Ineffective Assistance of Appellate Counsel
For reasons previously addressed, Hicks’s claim of
ineffective assistance of appellate counsel is procedurally
defaulted.
B. Prosecutorial Misconduct
On habeas review, this court reviews claims of
prosecutorial misconduct deferentially. Darden v.
Wainwright, 477 U.S. 168, 181 (1986). To be cognizable, the
20 Hicks v. Collins No. 01-3764
misconduct must have “so infected the trial with unfairness as
to make the resulting conviction a denial of due process.” Id.
(quoting Donnelly v. DeChristoforo, 416 U.S. 637 (1974)).
Even if the prosecution’s conduct was improper or even
“universally condemned,” id., this court can only reverse if
the statements were so flagrant as to render the entire trial
fundamentally unfair. If this court finds a statement
improper, four factors are considered in determining whether
the impropriety is flagrant: “(1) the likelihood that the
remarks would mislead the jury or prejudice the accused,
(2) whether the remarks were isolated or extensive,
(3) whether the remarks were deliberately or accidentally
presented to the jury, and (4) whether other evidence against
the defendant was substantial.” Bowling, 344 F.3d at 512-13.
Hicks complains that the State’s closing argument
improperly urged the jury to act as the community’s
conscience. Particularly, he cites the prosecution’s statements
that “it is time you sent a message to the community” and
“the people in the community have the right to expect that
you will do your duty.” These statements were arguably
proper general references to the societal need to punish guilty
people, rather than an improper “attempt to compare or to
associate the defendant with a feared and highly publicized
group . . . .” Id. at 516-517.
Contrary to the prosecutor’s statements in United States v.
Solivan, 937 F.2d 1146, 1151 (6th Cir. 1991), the
“community conscience” statements at issue here were not
“calculated to incite the passions and prejudices of the jurors
. . . .” In Solivan, the prosecutor’s statements regarding the
societal need to punish drug traffickers, such as defendant,
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.
See id. at 1153-57 (“The statements were deliberately injected
into the proceedings to inflame the jurors’ emotions and fears
associated with the current drug epidemic that is reported
daily in our newspapers and which threatens the very fabric

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No. 01-3764 Hicks v. Collins 21
of our society.”). Conversely, in the instant appeal and as just
indicated, the prosecutor’s statements only referred to “the
general community need to convict guilty people.” Id. at
1155. More importantly, such statements “were devoid of the
sort of inflammatory content inherent in the prosecutor’s
statements in [Solivan] precisely because there was no
comparable specific wider context of national attention and
concern” here regarding the conviction of double-murderers
like Hicks. See id. at 1154-55. Solivan is inapposite – it is
untenable to suggest that the prosecutor’s statements were
directed to the jurors’ desire to end a social problem. Cf. id.
at 1153. These remarks were not misleading, inflammatory,
or prejudicial. Assuming arguendo, however, that there was
error, it was only harmless since the evidence of Hicks’s guilt
was overwhelming. See id. at 1156 (prosecutorial error may
be held harmless “in light of the relative strength of the
evidence”). The prosecutor’s remarks were isolated and not
so improper as to render the trial fundamentally unfair.
Bowling, 344 F.3d at 512-13.
C. Claims Procedurally Defaulted
Hicks procedurally defaulted the following prosecutorial
misconduct claims by not asserting them on direct appeal.
Rather than challenging this determination, he asserts
ineffective assistance of appellate counsel as cause for
excusing the default. As addressed above, this is not proper
cause and the claims are defaulted; regardless, the defaulted
claims are analyzed below. Hicks still loses on the merits
because, for every claim, either the prosecution’s act was not
improper or was not flagrant enough to result in enough
prejudice to render the entire trial fundamentally unfair.
1. Failure to Disclose Statements
Hicks claims that, in violation of Brady v. Maryland, 373
U.S. 83, 87 (1963), and Ohio Criminal Rule 16(B)(1)(a)(ii),
the prosecution failed to provide him with inculpatory
statements he made to Cincinnati police officers. During the
22 Hicks v. Collins No. 01-3764
guilt phase of Hicks’s trial, Officer Hennekes testified on
cross-examination that during an interview between him,
Officer Hoffman, and Hicks, he asked what Hicks thought
would happen as a result of the murders. Hicks allegedly
responded, “They will probably give me the electric chair.”
Officer Hennekes then asked, “Don’t you think you should
get the electric chair for what you did?” Hicks responded,
“Yeah, I do.” This was the first time defense counsel learned
of these statements. Upon completion of this testimony,
Hicks moved for a mistrial premised upon the prosecution’s
failure to comply with his pretrial discovery request, which
the trial court denied. Hicks’s counsel never requested that
the testimony be stricken from the record or for an
admonition to the jury to disregard the testimony.
Officer Hoffman’s notes of Hicks’s interview do not
includes these statements. Both parties agree that this
information was not given to the defense prior to trial;
however, the prosecution could not recall if it was aware of
these statements prior to trial. Officer Hennekes’s testimony
is the only evidence that Hicks uttered these statements.
Hicks insists that these statements “were inherently and
inordinately prejudicial because they conveyed to the jury
Hicks’[s] apparent acquiescence in the correctness of a
recommendation of death as the appropriate penalty in his
case.”
To the extent Hicks premises his argument upon Ohio
Criminal Rule 16(B)(1)(a)(ii), there is no constitutional
violation cognizable on habeas. See Lorraine v. Coyle, 291
F.3d 416, 441 (6th Cir. 2002); see 28 U.S.C. § 2254(a)
(habeas corpus proceedings may be entertained only if Hicks
“is in custody in violation of the Constitution or laws or
treaties of the United States”). To the extent that Hicks states
an alleged constitutional violation under Brady, however, he
was denied a fair trial only if the prosecutorial misconduct
was “so pronounced and persistent that it permeate[d] the
entire atmosphere of [his] trial,” or “so gross as probably to

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No. 01-3764 Hicks v. Collins 23
prejudice [him].” United States v. Vance, 871 F.2d 572, 577
(6th Cir. 1989) (citations omitted).
Brady requires that the government turn over evidence in
its possession to the defense that is both favorable to the
accused and material to guilt or punishment. 373 U.S. at 87.
Pursuant to Brady, “evidence is material only if there is a
reasonable probability that, had the evidence been disclosed
to the defense, the result of the proceeding would have been
different.” United States v. Bagley, 473 U.S. 667, 682 (1985).
“The Brady rule does not assist a defendant who is aware of
essential facts that would allow him to take advantage of the
exculpatory evidence at issue.” Coleman v. Mitchell, 268
F.3d 417, 438 (6th Cir. 2001).
There is no Brady violation here since there is no evidence
that the prosecution knew of Hicks’s statements before trial.
These statements were elicited during Hicks’s cross-
examination of Officer Hennekes, not on direct examination
by the prosecution. Moreover, as Hicks allegedly uttered
these statements, he knew whether he made them and could
have advised his counsel accordingly. See Carter v. Bell, 218
F.3d 581, 601 (6th Cir. 2000) (“[N]o Brady violation if the
defendant knew or should have known the essential facts
permitting him to take advantage of the information in
question . . . .”). Although Hicks claims that the statements
were material to his punishment, i.e., that he believed the
death penalty was the appropriate penalty for his crimes, he
was not sentenced to death for both murders. Hicks’s belief
that he would be sentenced to death is also consistent with his
expression of remorse during the penalty phase of his trial.
Hicks was not denied a fair trial because the result of the
proceeding would not have been different.
2. Use of Confidential Arrest Records
During voir dire, the prosecution used records of
outstanding warrants and convictions of prospective jurors.
Hicks’s counsel raised the issue during voir dire but the
24 Hicks v. Collins No. 01-3764
prosecution responded that it had obtained these records
through its investigators and Hicks could have done the same.
The prosecution acknowledged that it was its practice to have
investigators or police officers conduct record checks of
prospective jurors, particularly in high profile cases. Based
upon the information in these records, during voir dire the
prosecution twice made reference to the non-felonious
criminal history of prospective jurors and, after the
prosecution’s challenge for cause was denied, exercised a
peremptory challenge to remove one juror. While Hicks
concedes that “it is difficult to say that the prosecution’[s] use
of this information to strike certain potential jurors effected
the verdict or sentence, it is clear that the inability to access
the information jeopardized [his] right to a fair trial.”
This claim fails. Convictions are public record. State v.
Cook, 700 N.E.2d 570, 579 (Ohio 1998). Although the
prospective jurors’ arrest records may or may not constitute
confidential law enforcement investigatory records, see State
ex rel. Outlet Communications, Inc. v. Lancaster Police
Dep’t, 528 N.E.2d 175, 178 (Ohio 1988) (in context of
O.R.C. § 149.43(A)(2)(a)), outstanding warrants are not
public record. Nevertheless, any distinction is irrelevant –
while Hicks makes the general allegation that he was deprived
“of the kind of fact-finder to which he [is] constitutionally
entitled[,]” Taylor v. Louisiana, 419 U.S. 522, 526 (1975),
and references two cases from other jurisdictions indicating
that the prosecution must disclose prospective jurors’ arrest
records to the defense, he cannot demonstrate how this
prosecutorial impropriety deprived him of a fair trial.
Considering the overwhelming evidence of Hicks’s guilt, the
fact that no evidence was presented indicating that the
prosecution obtained the records in violation of either state or
federal law, his failure to show that the records affected the
jury’s verdict or sentencing recommendation, and his own
concession, the prosecution’s conduct was not “so egregious
as to render [his] trial fundamentally unfair.” Buell v.
Mitchell, 274 F.3d 337, 364 (6th Cir. 2001) (citations
omitted); see also Weatherford v. Bursey, 429 U.S. 545, 559

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No. 01-3764 Hicks v. Collins 25
10During the trial, the prosecution referred to “Little Brandy Green”
as being five years old, her parrot named “Pierre,” and to Maxine as “a
cripp le.” During closing argument, the prosecution brought up that Hicks
“destroyed an entire family” and invited the jury to imagine what went
through B randy’s mind.
(1977) (“There is no general constitutional right to discovery
in a criminal case . . . .”).
3. Victim Impact Statements
Hicks complains of prosecutorial victim impact statements
that appealed to the jury’s emotions at both the guilt and
penalty phases of the trial. Generally, the statements play on
Brandy’s young age, Maxine’s handicap, and the idea that the
murders destroyed a whole family.10 While the State answers
that the Supreme Court in Payne v. Tennessee, 501 U.S. 808,
827 (1991), sanctioned the use of victim impact statements,
Payne simply dealt with the sentencing phase. Nevertheless,
this court has approved victim impact evidence during the
guilt phase, rather than at sentencing, as an extension of
Payne. See Cooey v. Coyle, 289 F.3d 882, 921 (6th Cir.
2002).
Hicks cites State v. McNeill, 700 N.E.2d 596 (Ohio 1998),
for the proposition that the Ohio Supreme Court has limited
the admission of victim impact evidence to rebuttal of offered
mitigation. Since this limitation is an Ohio rule of procedure
rather than a constitutional argument, see id. at 606, it
provides no habeas relief. In any event, there was no
prejudice because the statements were not “so pronounced
and persistent” that they “permeate[d] the entire atmosphere
of the trial . . . .” Pritchett v. Pitcher, 117 F.3d 959, 964 (6th
Cir.1997). The statements were isolated, not extensive, and
the proof of guilt was overwhelming.
26 Hicks v. Collins No. 01-3764
11Although Rupp explained that voluntary intoxication is no longer
an affirmative defense, it was available as an affirmative defense on the
date o f Hicks’s offenses. See sup ra, n.5.
4. Prosecution’s Isolated Comments
Hicks first complains that, during its opening statement, the
prosecution implied his guilt by emphasizing the importance
of the indictment. When read in context, the prosecution was
only reading the charges. Even if this was somehow
improper, it was an isolated statement, the evidence of guilt
was overwhelming, and the trial court gave an instruction that
the indictment was not evidence. See United States v. Bond,
22 F.3d 662, 668 (6th Cir. 1994) (finding prosecution’s
reference to indictment did not imply guilt and that
instruction cured any possible error).
Hicks next complains that the prosecution told the jury that
the trial court did not believe his intoxication or insanity
defenses. These comments concern the prosecution’s
statements that the trial court would not give an instruction on
intoxication/insanity because of the lack of supporting
evidence. This claim fails for two reasons. First, the Ohio
Supreme Court has approved these types of statements. See
State v. Smith, 780 N.E.2d 221, 234 (Ohio 2002) (finding “it
was permissible for the prosecutor to point out to the jury that
the evidence did not warrant such an instruction” on
intoxication). Second, both intoxication and insanity are
affirmative defenses in Ohio. See State v. Rupp, No.
CA2001-06-135, 2002 WL 517968, at *6 (Ohio Ct. App. Apr.
8, 2002) (intoxication);11 State v. Filiaggi, 714 N.E.2d 867,
878 (Ohio 1999) (insanity). Even if the statements
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.

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No. 01-3764 Hicks v. Collins 27
Hicks also complains that the prosecution suggested that
his defense counsel had “no doubt” that he was guilty and that
they knew he committed these “very dastardly acts.” While
it is generally improper for the prosecution to imply that
defense counsel thinks the defendant is guilty, see generally
Gregory G. Sarno, Annotation, Propriety and Prejudicial
Effect of Prosecutor’s Argument Giving Jury Impression that
Defense Counsel Believes Accused Guilty, 89 A.L.R.3d 263
(1979), defense counsel did say “the evidence is going to
show . . . he committed these dastardly acts.” Thus, the claim
fails.
5. Additional Comments
Hicks’s claim that the prosecution improperly brought
attention to the fact that his mitigation statement was unsworn
fails because the prosecution may properly comment that a
defendant’s mitigation statement is unsworn. DePew v.
Anderson, 311 F.3d 742, 745 (6th Cir. 2002). Hicks also
complains that, during voir dire, the State miscast the jury
decision as only a recommendation, causing the jury to think
it had a watered-down role in imposing death in violation of
Caldwell v. Mississippi, 472 U.S. 320, 328-29 (1985)
(holding prosecutor’s argument that jury’s decision was not
final because of appellate review was improper because it is
“constitutionally impermissible to rest a death sentence on a
determination made by a sentencer who has been led to
believe that the responsibility for determining the
appropriateness of the defendant’s death rests elsewhere”).
Since Ohio law requires a separate, post-recommendation
finding by the trial judge confirming the jury's sentence, this
court has held that casting the jury’s decision as a
“recommendation” is not an inaccurate statement of Ohio law
and therefore does not violate Caldwell. Coleman, 268 F.3d
at 436.
Similarly, Hicks charges the prosecution violated Caldwell
by identifying three sources of responsibility for Hicks’s
death sentence: (1) Hicks himself, (2) the people of Ohio for
28 Hicks v. Collins No. 01-3764
authorizing the death penalty, and (3) “fate, God, a deity or
something who has determined that there will be a just
punishment for this man.” Caldwell stands for the
proposition that the jury should not feel less responsible, or
more free to err, because of a belief that its decision to impose
death will not have effect unless others later confirm the
decision. Here, all three of the complained sources have to do
with previous authorization, not further review or
confirmation as in Caldwell.
Nevertheless, the third source, “God,” is problematic on
separate religious grounds. Courts universally condemn
religious injections. Sandoval v. Calderon, 241 F.3d 765, 777
(9th Cir. 2001). However, again, the prosecutor’s reference
was one isolated statement and it is doubtful a jury would
have felt a diminished responsibility by an ambiguous
reference to “fate, God, a deity or something.” Plus, the court
gave the standard instruction that what the lawyers say is not
evidence. See Bennett v. Angelone, 92 F.3d 1336, 1346-47
(4th Cir. 1996) (finding lack of prejudice because of standard
instruction). This is not a case where the prosecutor quoted
at length from Scripture about God mandating death. See
Sandoval, 241 F.3d at 775-80. There was no prejudice.
Hicks further maintains that the prosecution, during closing
argument, reviewed all mitigating factors listed in the statute,
including those not raised by the defense. This was improper,
as we have held that mitigation issues not brought up by the
defense cannot be brought up by the State because it
impermissibly focuses the attention on the absence of
mitigating factors. Combs, 205 F.3d at 292. While it may be
one of the more meritorious of all Hicks’s claims, it fails for
lack of prejudice. It does not appear that any court has ever
found prejudice on a Combs claim. Moreover, the
prosecution simply laid out all the mitigating factors and
argued why they did not apply. The prosecution did not
“mischaracterize[] a potentially mitigating factor as an
aggravating factor . . . .” Turner v. Calderon, 281 F.3d 851,
870 (9th Cir. 2002). “Given the particularly savage nature”

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No. 01-3764 Hicks v. Collins 29
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
that the Combs violation affected the penalty verdict. See id.
at 869-70.
Last, Hicks complains that the State impermissibly turned
the nature of the crime into an aggravating factor. Although
the prosecution “may properly refer to the nature and
circumstances of the offense, it is improper to characterize
that evidence as a nonstatutory aggravating circumstance.”
Combs, 205 F.3d at 292. Despite Hicks’s claim, as the
prosecution never told the jury that it could consider the
nature of the crime as an aggravating factor, this claim fails.
6. Peremptory Strikes
Hicks finally argues that the prosecution’s use of
peremptory challenges to exclude jurors who opposed the
death penalty denied him an impartial jury. This claim is
without merit because Hicks confuses those cases where
jurors were improperly stricken for cause. As long as not
based on race or gender, peremptory challenges are proper.
Dennis v. Mitchell, 354 F.3d 511, 525 (6th Cir. 2003)
(upholding peremptory challenges based on opposition to
death penalty).
III. CONCLUSION
For the foregoing reasons, the judgment of the district court
is AFFIRMED.
30 Hicks v. Collins No. 01-3764
1Because 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 issue warrants a new guilt phase trial.
_____________________________________________
CONCURRING IN PART, DISSENTING IN PART
_____________________________________________
CLAY, Circuit Judge, concurring in part and dissenting in
part. Contrary to the majority’s disposition, prosecutorial
misconduct in the state court trial should entitle Petitioner to
a new mitigation phase trial.1 Due to the overwhelming
evidence of guilt, Petitioner is not entitled to a new guilt
phase trial. I will first explain how the prosecution made
numerous statements that were improper on various separate
grounds, and secondly will explain why this was prejudicial.
I.
The prosecution repeatedly violated three rules during the
closing argument of the guilt phase of the trial–which will be
made clear after the applicable rules are set forth.
First, this Court has stated that “appeals to the jury to act as
the community conscience” are per se impermissible, when
“calculated to incite the passions and prejudices of the
jurors.” United States v. Solivan, 937 F.2d 1146, 1151 (6th
Cir. 1991). The prosecution has a right to cast the defendant
as a villain, but the prosecution may not pressure the jury to
uphold its role as righteous executioners–and the prosecution
is strictly forbidden from suggesting to the jury that harsh
treatment of one particular defendant will help to solve a
larger societal problem. The specific societal issue in Solivan
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

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No. 01-3764 Hicks v. Collins 31
2The same jury serves in both the guilt and sentencing phases. Ohio
Rev. Code § 2929.03(D)(2) (“the trial jury” is responsible for capital
sentencing recommendations).
death penalty during the guilt phase of the trial.
Commingling the guilt phase with the capital sentencing
question encourages the jury to view the case as a single
entity; in a case, such as this one, with overwhelming
evidence of guilt, the jury is discouraged from drawing a
distinction between its guilt phase trial verdict and its
sentencing recommendation. The prosecutor gains an unfair
advantage by getting a head start on his argument for the
death penalty, which causes the jury2 to enter the mitigation
phase of the trial with preconceptions as to sentencing.
Third, when addressing the jury, “[t]he prosecutor has a
duty not to misrepresent the law . . . .” Hung Thanh Le v.
Mullin, 311 F.3d 1002, 1022 (10th Cir. 2002); see also United
States v. Ollivierre, No. 03-4802, 2004 U.S. App. LEXIS
16681, at *12 (4th Cir. Aug. 13, 2004) (published).
During the closing argument of the guilt phase of the trial,
these three rules were violated continually and to an extreme
degree. In numerous instances in the closing argument of the
guilt phase trial, prosecuting attorney Claude N. Crowe
repeatedly, and over objection, argued for a death sentence,
pressuring the jury to serve as a community conscience by
sentencing Petitioner to death, to send a message to the
community regarding the larger societal problem of drug use.
Early in the closing argument of the guilt phase trial, Crowe
began arguing that a death sentence would send a message to
the community that would deter cocaine use:
MR. CROWE: We are trying to take this man’s life.
MR. RUEGER [HICKS’ COUNSEL]: Objection, your
Honor, that has no place in this particular matter.
32 Hicks v. Collins No. 01-3764
3The prosecution referenced voir dire, here.
THE COURT: This Court leaves a lot of latitude in final
argument. The jury knows what the evidence is and the
Court will instruct the jury on the law. Proceed.
MR. CROWE: . . . We all said the death penalty serves
a purpose. Some of you have said retribution is a valid
reason, some of you said deterrent.[3] I ask you, ladies
and gentlemen, it is time you sent a message to the
community. That this is no excuse.
MR. RUEGER: Judge, I object to that this is highly
improper and I have to make a motion for a mistrial.
THE COURT: The objection is sustained. The motion
for a mistrial is denied.
Proceed, Mr. Crowe.
MR. CROWE: Consider deterrents [sic–deterrence] . . .
when you think about cocaine, the devil the cocaine.
(J.A. at 2779-84.)
Crowe’s statements here urged the jury to recommend a
death sentence for the purpose of “sen[ding] a message to the
community” that drug use will not be tolerated, i.e., a
message of “deterrence” regarding “the devil cocaine.”
Crowe urged the jury to “sen[d] a message to the
community,” by “tak[ing] [Petitioner’s] life.” Crowe was not
asking the jury to send a message that would deter murder; he
was not arguing that sentencing Petitioner to death would
send any general message of deterrence to potential
murderers, whose possible crimes may involve vastly
different types of victims, motivations, and circumstances.
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

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No. 01-3764 Hicks v. Collins 33
cocaine at the time of both murders, and the first murder was
motivated by the desire to steal money that would be used to
buy more cocaine–would “sen[d] a message to the
community” that the penalties for cocaine use can be
extremely severe. This is the “deterrence” that Crowe clearly
referenced, when he said: “Consider deterrents
[sic–deterrence] . . . when you think about cocaine, the devil
the cocaine.”
Crowe’s statements regarding sending a message to deter
cocaine use were highly improper. In Solivan, this Court
remanded the case for a new trial, based upon the prosecutor’s
similar drug deterrence argument. In that case, the prosecutor
argued, in his closing statement, “I'm asking you to tell her
and all of the other drug dealers like her—(defense counsel's
objection and Court's response omitted)—[t]hat we don't
want that stuff in Northern Kentucky and that anybody who
brings that stuff in Northern Kentucky . . . .” 937 F.2d at
1148 (emphasis in original). Crowe’s statements about
addressing the community-level problem of drug use were
directly in violation of Solivan. If Crowe’s statements were
slightly less outrageous than those in Solivan, then Crowe’s
rhetoric was also far more impassioned, referencing “the devil
cocaine.” Here, as in Solivan, the attempt to use the particular
case before the jury to address the larger societal problem of
drug use constituted “an appeal wholly irrelevant to any facts
or issues in the case, the purpose and effect of which could
have only been to arouse passion and prejudice.” Id. at 1151
(characterizing Viereck v. United States, 318 U.S. 236, 237-38
(1943)).
In improperly urging the jury to act as the community
conscience by using this particular case to promote
“deterrence” of cocaine use, Crowe misrepresented the law to
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
defendant for drug trafficking because the charged offenses
34 Hicks v. Collins No. 01-3764
were drug crimes. By contrast, in the instant case, Petitioner
was not charged with any drug offense. Crowe’s deterrence
argument asked the jury to treat Petitioner harshly, so as to
send a message that would deter cocaine use; this request to
impose a harsh sentence based upon cocaine use carried with
it the necessary and obvious implication that under Ohio law
a jury is authorized to consider drug use as an aggravating
factor in sentencing for a capital crime. This implication was
patently false. Under Ohio law, the jury is not permitted to
consider drug use as an aggravating factor in capital
sentencing. Ohio’s capital sentencing scheme contains a
finite list of aggravating factors, and cocaine use (or the use
of other drugs or alcohol) is not one of them. Ohio Rev. Code
§ 2929.04(A). Crowe misrepresented the law to the jury, by
indicating that a death sentence could be justified, in part, by
Petitioner’s use of cocaine.
This misrepresentation of Ohio law was extensive. Crowe
continually attempted to draw the improper, unfounded
implication that cocaine use can be an aggravating factor in
capital sentencing. Later in the closing argument of the guilt
phase trial, Crowe again repeatedly referenced the jury’s
alleged duty to send Petitioner to death, at least in part due to
his drug use:
I don’t want there to be any question in your mind what
your duty is in this case. There was no question in his
mind what he wanted the result to be [in committing the
murders]. And I tell you, ladies and gentlemen, he
forfeited his right to life at that point in time. All for
devil cocaine. The devil cocaine is not a defense. . . .
As difficult as it may be to face what must be done in this
case . . . .
. . . .
The people in this community have the right to expect
that you will do your duty.

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No. 01-3764 Hicks v. Collins 35
4Crowe was, of course, entitled to refute the argument that cocaine
intoxication was a defense; Crowe was entitled to argue that the effects of
cocaine use had not diminished Petitioner’s capacity to act purposely,
with intent, under the definition of aggravated murder. Ohio Rev. Code
§§ 2901.22(A ) (definition of “purpo sely”), 2903.01(A) (mens rea for
aggravated murder).
(J.A. at 2788-92.)
Crowe was improperly arguing that “the devil cocaine”
could be considered as a reason for the jury to conclude that
Petitioner “forfeited his right to life.” Crowe may have tried
to clean up his language by mentioning that cocaine
intoxication is not a defense.4 But by the time he said this it
was too late–Crowe had just finished drawing the link
between cocaine use and the death sentence. Moreover, soon
after referencing the fact that cocaine intoxication was not a
defense, Crowe returned to his message that a death sentence
was appropriate–urging jurors to do “what must be done,”
their “duty,” even though it would be “difficult.” Needless to
say, Crowe was urging jurors to recommend a death sentence.
(There is nothing “difficult” about merely finding a defendant
guilty of crimes to which he had confessed.) This intimation
that the “devil cocaine” could be considered as a reason to
recommend a death sentence was a misrepresentation of Ohio
law.
Crowe used this particular case as a vehicle to further the
larger social agenda of drug deterrence. Based upon Crowe’s
arguments, the guilt phase was not about determining
Petitioner’s guilt–it was about something more, i.e., achieving
a death sentence. And the sentence was not solely about
punishment–it was about something more, i.e., condemnation
of “the devil cocaine.” Because Crowe obviously saw his
ultimate goal of deterring cocaine use as extremely important,
the ends justified the means, resulting in a misrepresentation
of the law, i.e., Crowe’s encouraging the jury to consider
cocaine use as an aggravating factor in sentencing. Each of
36 Hicks v. Collins No. 01-3764
Crowe’s breaches of the rules appear to fit together as part of
the larger plan.
Crowe characterized the central issue in this case as being
that of cocaine use; cocaine was the aggravating circumstance
that could convince the jury to recommend a death sentence.
During the closing argument of the guilt phase trial, when
Crowe began to refute the cocaine defense, Crowe
characterized Petitioner’s mindset as follows: “The most
important thing is craving for more cocaine. Well, that is
right. The most important thing in his life is the craving of
cocaine and not the well being of other human beings.” (J.A.
at 2788.) These comments did not refute the defense of
cocaine intoxication. If anything, the comments supported
the defense of cocaine intoxication by twice referring to the
“craving” of cocaine. Such language could have suggested
that Petitioner had lost control at the time of the crimes and
lacked the requisite mens rea. Clearly, Crowe was not
discussing guilt; he was trying to convince the jury to
recommend a death sentence. When Crowe said, “The most
important thing in his life is the craving of cocaine and not the
well being of other human beings,” this statement was not
limited to Petitioner; the statement was an indictment of
cocaine users, generally. In Crowe’s view, the use of cocaine
was “a conscious decision which they make.” (J.A. 2783-84)
(emphasis added). “They”–cocaine users, generally–were on
trial, not just Petitioner.
Crowe saw the case quite clearly. This was the opportunity
to “sen[d] a message” to potential users of “the devil
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
time a potential user felt a “craving” for cocaine, he would
think twice before making the “conscious decision” to use the
drug–he would realize that the drug had caused Petitioner to
“forfeit[] his right to life.” The goal of the trial was not to
find the facts but rather to “try[] to take [Petitioner’s] life,” in

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No. 01-3764 Hicks v. Collins 37
the service of a higher purpose–“deterrence” of cocaine use.
The “community ha[d] the right to expect that” jurors would
do their solemn “duty,” to help win the war on drugs.
Crowe’s pervasive message was highly improper in
attempting to invoke the community conscience to such a
degree. But what made the conduct especially egregious was
that Crowe overstepped the boundary between the guilt and
mitigation phases by encouraging the jury to prejudge the
sentencing decision before Petitioner’s attorney had the
opportunity to address the penalty issue. By so doing, Crowe
pressured the jury to ignore governing Ohio law under which
drug use cannot be considered as an aggravating factor in
capital sentencing. Crowe violated certain clear, fundamental
rules that constrain prosecutorial advocacy.
The attempt to invoke improper considerations did not end
with the guilt phase. During the closing argument of the
penalty phase, Crowe’s colleague, John J. Arnold stated, “It
is the people of the State of Ohio who have determined that
in a case such as this death may be an appropriate decision.
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
there will be a just punishment for this man.” (J.A. at 2924.)
The majority acknowledges that this violated Petitioner’s
fundamental constitutional rights. Sandoval v. Calderon, 241
F.3d at 776 (“In a capital case like this one, the prosecution’s
invocation of higher law or extra-judicial authority violates
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
attempt to sermonize about the larger purposes and ideals that
would be served by Petitioner’s receiving a death sentence.
38 Hicks v. Collins No. 01-3764
5Lundy v. Camp bell, 888 F.2d 467, 474-75 (6th Cir. 1989) (citing
Angel v. Overb erg, 682 F.2d 605, 608 (6th C ir. 198 2) (en banc )). See also
United States v. Young, 470 U.S. 1, 11 (1985) (“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”).
6In 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).
II.
The prosecution’s improper statements were prejudicial.
The standard for prejudice is whether the improper remarks
were “harmless beyond a reasonable doubt,” i.e., whether
there is a “reasonable possibility” that the error might have
contributed to the result being challenged. Solivan, 937 F.2d
at 1155.
There is no need to answer the question of whether any of
the prosecution’s improper remarks might have been
prejudicial, taken individually. Individual instances of
prosecutorial misconduct can be cumulated.5 (Actually,
different types of constitutional errors can even be cumulated,
in a capital case;6 but the prosecutorial misconduct issue in
the instant case need not rely on that rule.)
In DePew v. Anderson, in cumulating numerous errors to
vacate a death sentence, this Court made clear that in capital
cases it is more difficult for the prosecution to demonstrate a
lack of prejudice:
Members of the Supreme Court have advised us to
remember that “death is different”–that “[t]he taking of
life is irrevocable,” so that “[i]t is in capital cases
especially that the balance of conflicting interests must
be weighed most heavily in favor of the procedural
safeguards of the Bill of Rights,” Reid v. Covert, 354

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No. 01-3764 Hicks v. Collins 39
U.S. 1, 45-46, 77 S.Ct. 1222, 1 L.Ed.2d 1148 (1957)
(Frankfurter, J., concurring), and that “[i]n death cases
doubts . . . should be resolved in favor of the accused.”
Andres v. United States, 333 U.S. 740, 752, 68 S.Ct. 880,
92 L.Ed. 1055 (1948). In Caldwell v. Mississippi, 472
U.S. 320, 329, 105 S.Ct. 2633, 86 L.Ed.2d 231 (1985),
the Court decided that a prosecutor's prejudicial
statements in closing argument rendered the death
sentence invalid. It applied a stricter standard in
assessing the validity of closing argument in death cases
relying on the Court’s admonition in California v.
Ramos, 463 U.S. 992, 998-99, 103 S.Ct. 3446, 77
L.Ed.2d 1171 (1983), that under the Eighth Amendment
“the qualitative difference of death from all other
punishments requires a correspondingly greater degree of
scrutiny in capital sentencing determinations.”
311 F.3d 742, 751 (6th Cir. 2002).
Under the heightened scrutiny in a capital case that DePew
requires, the prosecution’s improper statements prove
prejudicial when viewed cumulatively. There is a reasonable
possibility that the jury’s sentencing recommendation was
influenced by the improper statements; this can be
demonstrated by virtue of comparison with Solivan.
In Solivan, this Court reversed convictions and sentence
and remanded the case for new trial because improper
prosecutorial remarks had been prejudicial. A comparison
reveals that, on all accounts, Petitioner’s case for granting a
new mitigation phase trial is either comparable to or stronger
than the argument for a new trial in Solivan. Here, as in
Solivan, the improper remarks were “calculated to incite the
passions and prejudices of the jury.” 937 F.2d at 1151. In
Solivan, there was only one statement appealing to the
community conscience. In the instant case, as recounted
above, there were numerous separate statements appealing to
community conscience. In Solivan, as in the instant case, the
prosecution improperly suggested that the jury use the case to
40 Hicks v. Collins No. 01-3764
send a message of deterrence regarding the larger societal
problem of illegal drug use.
The Solivan Court considered the inflammatory nature of
the comments made by the prosecution and also “[b]oth the
timing and the firmness of the trial court’s” curative
instruction. 937 F.2d at 1157. The Solivan Court noted that
there was a substantial delay before the trial judge offered a
curative instruction–after the objection, there was a
conference between the trial judge and the attorneys for both
sides–and there was no firm rebuke by the trial judge. Id.
Because each of these factors suggested prejudice, the error
could not be deemed harmless. Id. In the instant case, there
were never any curative instructions; after sustaining an
objection regarding Crowe’s call for the jury to “sen[d] a
message to the community,” the trial judge simply allowed
Crowe to proceed with his closing argument. Additionally,
as explained above, in the instant case–but not in Solivan–the
prosecutor misstated the law (by suggesting that drug use
could factor into the sentencing recommendation). Finally,
Solivan was not a capital case; thus, DePew’s heightened
scrutiny of prejudice in a capital case was not applicable in
Solivan.
Overall, then, there is nothing in Solivan that would weigh
more strongly in favor of post-conviction relief than the
circumstances in the instant case. And at least four factors
suggest prejudice more strongly in the instant case than in
Solivan: (1) the appeals to community conscience were more
numerous in the instant case than in Solivan; (2) the trial
judge offered no curative instructions in the instant case, as
opposed to a delayed curative instruction in Solivan;
(3) unlike Solivan, the instant case involved misrepresentation
of law to the jury; and (4) unlike Solivan, the instant case is
a capital case.
Solivan makes clear that strong evidence of guilt can
provide a reason for a finding that improper prosecutorial

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No. 01-3764 Hicks v. Collins 41
7Due to the overwhelming evidence of guilt, including Petitioner’s
police confession, the result of the guilt phase trial need not be disturbed.
statements were harmless. 937 F.2d at 1156.7 Yet this
principle cannot be applied to demonstrate a lack of prejudice
in the instant case. In Solivan, the prosecutorial misconduct
was so egregious that the conviction–i.e., the jury’s fact-
finding–was reversed. In the instant case, where the
impropriety was worse than in Solivan, for the above-
mentioned reasons, in sentencing the jury was required not
merely to engage in objective fact-finding but rather to weigh
aggravating and mitigating factors. There is no basis for
speculating that the jury’s weighing function was unaffected
by the prosecution’s polemics.
Under Ohio law, the prosecution has “the burden of
proving, by proof beyond a reasonable doubt, that the
aggravating circumstances the defendant was found guilty of
committing are sufficient to outweigh the factors in mitigation
of the imposition of the sentence of death.” Ohio Rev. Code
§ 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
offender was found guilty of committing outweigh the
mitigating factors.” Id. § 2929.03(D)(2). The death penalty
cannot be imposed in Ohio, unless the jury has given its
unanimous recommendation. Id. Hence, synthesizing all of
the applicable standards, all that is needed to show prejudice
is the demonstration of a reasonable possibility that, absent
the improper statements, at least one juror would have
declined to find that the prosecution had proved beyond a
reasonable doubt that the aggravating factors outweighed the
mitigating factors.
The jury was presented with various forms of mitigation
evidence in this case. In its review of the case, the Supreme
Court of Ohio explained that at sentencing Petitioner had
presented numerous pieces of evidence that were relevant to
42 Hicks v. Collins No. 01-3764
8The court consid ered coca ine use to be relevant to at least one of the
mitigation factors. The court may have reasoned that cocaine addiction
was “a mental disease or defect” that caused a criminal to “lack[]
substantial capa city to appreciate the criminality of the offender's conduct
or to conform the offender's cond uct to the requirements of the law.”
Ohio Rev. Code § 2929.04 (B)(3). In the alternative, cocaine use could be
considered under the residual catch-all prov ision for mitigating factors.
Id. § 2929.04(B)(7) (“Any other factors that are relevant to the issue of
whether the offender should be sentence d to d eath” may be con sidered to
the extent that they “weigh against the aggravating circumstances”).
At sentencing, Crowe had the right to refute the argument that
cocaine use should be a strong mitigating factor. But such refutation
could only occur after Petitioner’s counsel had made the mitigation
argum ent. Instead, Crowe preempted Petitioner’s counsel, by raising the
topic of sentencing during the guilt phase trial, before Petitioner’s counsel
had made any mitigation argument. Thus, Crowe’s message could not be
interpreted as a rebuttal of a mitigation factor. During the guilt phase
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
treat Petitioner more harshly. It was imp roper to make this argument,
because under Ohio law there is no aggravating factor that could possibly
be construed to include cocaine use.
mitigation. The Supreme Court of Ohio pointed out that
Petitioner “turned himself in, waived extradition, and
cooperated with police. This factor tends to show remorse
. . . .” State v. Hicks, 538 N.E.2d 1030, 1039, 43 Ohio St. 3d
72, 80 (Ohio 1989). In addition, contrary to Crowe’s
representations to the jury that cocaine use was an
aggravating factor (i.e., Crowe’s deterrence argument), the
Supreme Court of Ohio considered the cocaine use to be a
mitigating factor. Id. (“The possibility that appellant was
under the influence of drugs when he killed his victims should
be assigned some weight in mitigation.”).8 Also, the Supreme
Court of Ohio noted that various other types of mitigation
evidence had been presented, including evidence that
Petitioner had a learning disability, evidence of Petitioner’s
troubled childhood in which his father had possibly been an
alcoholic, and evidence of Petitioner’s reputation among co-
workers as having good character and a strong work ethic. Id.

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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.

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