Ronald Dean Combs v. Ralph Coyle

1
RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
ELECTRONIC CITATION: 2000 FED App. 0064P (6th Cir.)
File Name: 00a0064p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
R ONALD DEAN C OMBS,
Petitioner-Appellant,
v.
R ALPH C OYLE ,
Respondent-Appellee.
;>

1
No. 97-4369
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 95-00733—Sandra S. Beckwith, District Judge.
Argued: November 2, 1999
Decided and Filed: February 23, 2000
Before: NORRIS, DAUGHTREY, and MOORE, Circuit
Judges.
_________________
COUNSEL
ARGUED: Richard A. Chesley, JONES, DAY, REAVIS &
POGUE, Chicago, Illinois, for Appellant. Stuart A. Cole,
OFFICE OF THE ATTORNEY GENERAL OF OHIO,
Columbus, Ohio, for Appellee. ON BRIEF: Richard A.
Chesley, JONES, DAY, REAVIS & POGUE, Chicago,
Illinois, Jenny L. Klitch, JONES, DAY, REAVIS & POGUE,

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2 Combs v. Coyle No. 97-4369
Columbus, Ohio, Linda E. Prucha, PUBLIC DEFENDER’S
OFFICE, OHIO PUBLIC DEFENDER COMMISSION,
Columbus, Ohio, for Appellant. Stuart A. Cole, Jonathan R.
Fulkerson, OFFICE OF THE ATTORNEY GENERAL OF
OHIO, Columbus, Ohio, for Appellee.
MOORE, J., delivered the opinion of the court, in which
DAUGHTREY, J., joined. NORRIS, J. (p. 42), delivered a
separate opinion concurring in part and dissenting in part and
joined in the judgment.
_________________
OPINION
_________________
KAREN NELSON MOORE, Circuit Judge. Petitioner-
appellant Ronald Dean Combs was convicted by an Ohio jury
of two counts of aggravated murder as well as a specification
of an aggravating circumstance as to each count, and he was
sentenced to death. Combs now appeals the district court’s
denial of his petition for a writ of habeas corpus. His brief
sets forth twenty-nine claims, including various claims of
ineffective assistance of counsel, prosecutorial misconduct,
trial court error, and challenges to the constitutionality of his
death sentence. For reasons that will be explained below, we
conclude that Combs’s trial counsel rendered ineffective
assistance so egregious as to make us doubt whether Combs’s
trial produced a just result. Accordingly, we REVERSE the
district court’s judgment and REMAND to the district court
for issuance of a writ of habeas corpus conditioned upon the
State of Ohio granting Combs a new trial within a reasonable
period of time.
I. BACKGROUND
On July 15, 1987, Ronald Dean Combs shot and killed
Peggy Schoonover and her mother, Joan Schoonover. Peggy
Schoonover and Combs had been involved in a relationship
and had a child together, a son named Joseph. The shootings
took place in the Holiday Park Tower parking lot in

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42 Combs v. Coyle No. 97-4369
______________________________________________
CONCURRING IN PART, DISSENTING IN PART
______________________________________________
ALAN E. NORRIS, Circuit Judge, concurring in part and
dissenting in part.
I concur with the majority’s decision in Part II.B.3 and
agree that a writ of habeas corpus should be issued on this
ground. Because petitioner did not argue that introduction of
his “talk to my lawyer” statement violated his right to remain
silent, I respectfully dissent from Part II.B.2 of the majority’s
opinion.
No. 97-4369 Combs v. Coyle 3
downtown Cincinnati, and an off-duty police officer, Deputy
Sheriff James Neil, witnessed the shootings. Neil ordered
Combs to freeze, but when Combs made an aggressive move
and refused to drop his shotgun, Neil fired six gunshots at
Combs. Combs was taken to the hospital and underwent
extensive treatment for his gunshot wounds. His right arm
was amputated, and his left arm was left partly paralyzed.
Combs was charged with two counts of aggravated murder,
which is defined as “purposely, and with prior calculation and
design, caus[ing] the death of another.” OHIO R EV . C ODE
ANN . § 2903.01(A) (Banks-Baldwin 1997). Each count
contained a specification of an aggravating circumstance,
namely that the offense “was part of a course of conduct
involving the purposeful killing of or attempt to kill two or
more persons.” Joint Appendix (hereinafter “J.A.”) at 9
(Indictment); OHIO REV. CODE ANN. § 2929.04(A)(5) (Banks-
Baldwin 1997). Under Ohio law, a defendant becomes
eligible for the death penalty if he is convicted of or pleads
guilty to aggravated murder as well as at least one of the
aggravating circumstances set forth in § 2929.04. See OHIO
R EV . C ODE ANN . § 2929.03(C)(2) (Banks-Baldwin 1997).
At trial, Combs did not contest that he fired the two shots
that killed Peggy and Joan Schoonover. Instead, his defense
was that he was too intoxicated from alcohol and drugs to
form the requisite intent to kill the women or to have
committed the killings with prior calculation and design. To
support this theory, Combs presented the testimony of several
witnesses who had seen him ingesting substantial quantities
of alcohol and drugs in the days prior to and on the day of the
shootings. Defense witness Dr. Roger Fisher, a clinical
psychologist, also testified that, in his expert opinion, Combs
was under the influence of drugs and alcohol at the time of
the shootings. However, on cross examination, Fisher
explained his belief that Combs, while intoxicated, was
nevertheless acting with intent and purpose.
On February 17, 1988, a jury found Combs guilty of both
counts of aggravated murder as well as the specification of an

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4 Combs v. Coyle No. 97-4369
aggravating circumstance as to each count. Following a
sentencing hearing conducted on February 22, 1988, the jury
returned a verdict imposing a sentence of death. Pursuant to
Ohio Revised Code § 2929.03(D)(3), the trial court
independently reviewed all the evidence and, upon concluding
that the aggravating circumstance outweighed the mitigating
factors beyond a reasonable doubt, it adopted the jury’s
recommended sentence of death.
Combs then unsuccessfully pursued direct appeals and state
post-conviction relief. Combs’s conviction was affirmed by
the state court of appeals on September 19, 1990, see Ohio v.
Combs, No. C-880156, 1990 WL 135000, at *9 (Ohio Ct.
App. Sept. 19, 1990) (unpublished opinion), and by the Ohio
Supreme Court on December 18, 1991, see Ohio v. Combs,
581 N.E.2d 1071, 1084 (Ohio 1991), reh’g denied, 583
N.E.2d 974 (Ohio), cert. denied, 504 U.S. 977 (1992).
Combs filed a petition for post-conviction relief pursuant to
Ohio Revised Code § 2953.21 raising fifty-nine claims for
relief, which was denied by the court of common pleas on
May 20, 1993. J.A. at 420 (Ct. C.P. Denial of Pet. to Vacate).
The court of appeals affirmed the denial of relief, see Ohio v.
Combs, 652 N.E.2d 205, 218 (Ohio Ct. App. 1994), and the
Ohio Supreme Court declined jurisdiction over Combs’s
discretionary appeal, see Ohio v. Combs, 644 N.E.2d 1028
(Ohio), recons. denied, 646 N.E.2d 469 (Ohio 1995). In June
of 1993, Combs filed an application for delayed
reconsideration in the court of appeals; this application was
denied on February 22, 1994. J.A. at 363-64 (Entry Denying
App. for Delayed Recons.). The Ohio Supreme Court
affirmed the denial without opinion. See Ohio v. Combs, 634
N.E.2d 1027 (Ohio), recons. denied, 638 N.E.2d 86 (Ohio
1994), cert. denied, 513 U.S. 1167 (1995).
After exhausting all state court remedies, Combs filed a
petition for a writ of habeas corpus in the United States
District Court for the Southern District of Ohio pursuant to 28
U.S.C. § 2254. Combs’s petition asserted fifty-three claims
for relief. After finding all of these claims to be either
procedurally barred or without merit, the district court denied
No. 97-4369 Combs v. Coyle 41
Id. (citation omitted). Although the Ohio Supreme Court
found that these comments did not warrant reversal, the State
should avoid such speculation on retrial.
III. CONCLUSION
Based on the preceding analysis, we conclude that Combs’s
trial counsel rendered constitutionally ineffective assistance
at the culpability phase of Combs’s trial. We therefore
REVERSE the district court’s judgment and REMAND the
case to the district court with instructions to issue a writ of
habeas corpus unless the State of Ohio retries Combs within
a reasonable period of time.

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40 Combs v. Coyle No. 97-4369
childhood? Was she thinking about her daughter take me
but spare Peggy? That’s the aggravating circumstance,
what she went through. Or maybe she started to pray, we
don’t know. He won’t tell us.
. . . .
. . . What did she [Peggy] think when this now hot steal
[sic] pressed against the back of her head, she knew she
too wasn’t going to be given any mercy. What went
through her mind, what was she thinking? Was she
thinking of little Joey, who’s going to take care of him,
grandma is gone, I’m going to be gone, who’s going to
raise my little boy. And then came the pull of that
second trigger, and she’s gone. That’s the aggravating
circumstance, that’s what you put in your one hand and
even if you do find some mitigation and all that that the
defendant told you, weigh that.
. . . .
. . . What weighs more, these two totally good lives or
the defendant’s life in the fast lane?
R. at 1404-06; J.A. at 2783-85.
The Ohio Supreme Court on direct review of Combs’s case
concluded that these prosecutorial comments were erroneous
as a matter of state law. See Combs, 581 N.E.2d at 1077. The
court explained:
After reading his entire argument, we conclude that the
prosecutor did err. The prosecutor did improperly
suggest that how the victims were killed and the
suffering and mental anguish the victims endured was an
aggravating circumstance. Improperly injecting
nonstatutory aggravating circumstances is error. By
continually referring to what the victims were thinking,
the prosecutor engaged in gross speculation.
No. 97-4369 Combs v. Coyle 5
relief on October 23, 1997. J.A. at 231 (D. Ct. Op.). The
district court issued a certificate of probable cause on
December 17, 1997. We have jurisdiction over Combs’s
timely appeal of the district court’s judgment pursuant to 28
U.S.C. § 2253.
Combs’s appeal sets forth twenty-nine claims for relief;
these claims fall under the headings of ineffective assistance
of trial counsel at both the culpability and sentencing phases,
ineffective assistance of appellate counsel, prosecutorial
misconduct, trial court error, and imposition of an
unconstitutional sentence of death. Because our resolution of
Combs’s ineffective assistance of trial counsel claim renders
unnecessary a decision on the others, we will confine our
opinion to an analysis of the ineffectiveness claim.
Additionally, we will briefly discuss trial errors that have
been identified by the Ohio state courts so as to ensure that
these errors are avoided on Combs’s retrial.
II. ANALYSIS
A. Procedural Default
It is well established that “[i]n all cases in which a state
prisoner has defaulted his federal claims in state court
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, or
demonstrate that failure to consider the claims will result in
a fundamental miscarriage of justice.” Coleman v. Thompson,
501 U.S. 722, 750 (1991). In Maupin v. Smith, 785 F.2d 135
(6th Cir. 1986), we articulated an analysis that must be
followed when a state argues that a habeas claim is defaulted
because of a petitioner’s failure to observe a state procedural
rule. “First, the court must determine that there is a state
procedural rule that is applicable to the petitioner’s claim and
that the petitioner failed to comply with the rule.” Id. at 138.
“Second, the court must decide whether the state courts
actually enforced the state procedural sanction.” Id. “Third,
the court must decide whether the state procedural forfeiture

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6 Combs v. Coyle No. 97-4369
is an ‘adequate and independent’ state ground on which the
state can rely to foreclose review of a federal constitutional
claim.” Id. As we have previously stated: “For purposes of
federal review in habeas cases, we may consider as an
adequate and independent state procedural rule only a state
procedural rule that was ‘firmly established and regularly
followed by the time as of which it [was] to be applied’ . . . .”
Rogers v. Howes, 144 F.3d 990, 992 (6th Cir. 1998) (quoting
Ford v. Georgia, 498 U.S. 411, 423-24 (1991)) (alteration in
original). If we determine that the state procedural ground
was adequate and independent so as to bar review, the
petitioner must then demonstrate cause and prejudice or a
fundamental miscarriage of justice.
Whether a state court rested its holding on procedural
default so as to bar federal habeas review is a question of law
that we review de novo. See Couch v. Jabe, 951 F.2d 94, 96
(6th Cir. 1991). In answering this question, we look to “the
last explained state-court judgment.” Id. (quoting Ylst v.
Nunnemaker, 501 U.S. 797, 805 (1991)) (internal quotation
marks omitted).
Combs has raised six separate claims of ineffective
assistance of trial counsel at the culpability phase. Although
one of these claims was presented on direct appeal and is
therefore properly preserved, the other claims were first
presented in Combs’s state post-conviction petition. The
State maintains that the state courts’ dismissal of these claims
under the doctrine of res judicata was proper, and that we
should therefore refuse to review the merits of these
procedurally defaulted claims. Combs argues that the first
prong of the Maupin analysis is not satisfied because at the
time he pursued his direct appeal, no state procedural rule
mandated that his ineffectiveness claims be asserted on direct
appeal.
The Ohio state courts relied on two cases to support the
decision that res judicata barred consideration of the claims
raised for the first time in Combs’s post-conviction petition:
Ohio v. Perry, 226 N.E.2d 104 (Ohio 1967), and Ohio v.
No. 97-4369 Combs v. Coyle 39
(1998); Ohio v. Garner, 656 N.E.2d 623, 631 (Ohio 1995),
cert. denied, 517 U.S. 1147 (1996); Ohio v. Grant, 620
N.E.2d 50, 68 (Ohio 1993), cert. denied, 513 U.S. 836 (1994).
On direct review of Combs’s conviction, the Ohio Supreme
Court cited DePew and explained that the reference to
statutory mitigating factors not raised by the evidence was
erroneous. See Combs, 581 N.E.2d at 1079. The court found,
however, that the error did not require reversal because
defense counsel induced the error by proposing the improper
instruction. See id.
2. Improper Characterization of the Nature and
Circumstances of the Offense as a Nonstatutory
Aggravating Circumstance
The Ohio Supreme Court also concluded that the State
erred by focusing its closing remarks on the victims’ mental
anguish prior to death, thereby converting the nature and
circumstances of the offense into a nonstatutory aggravating
circumstance. Under Ohio law, although prosecutors in the
penalty phase of a capital case may properly refer to the
nature and circumstances of the offense, it is improper to
characterize that evidence as a nonstatutory aggravating
circumstance. See, e.g., Ohio v. Gumm, 653 N.E.2d 253, 262-
63 (Ohio 1995), cert. denied, 516 U.S. 1177 (1996); Ohio v.
Landrum, 559 N.E.2d 710, 719 (Ohio 1990), cert. denied, 498
U.S. 1127 (1991); Ohio v. Davis, 528 N.E.2d 925, 931 (Ohio
1988), cert. denied, 488 U.S. 1034 (1989).
It is undisputed that the only aggravating circumstance
listed in § 2929.04 for which Combs was convicted is that
“the offense at bar was part of a course of conduct involving
the purposeful killing of or attempt to kill two or more
persons by the offender.” O HIO R EV . C ODE ANN .
§ 2929.04(A)(5) (Banks-Baldwin 1997). At the sentencing
hearing, however, the State made the following closing
argument:
Can you imagine the terror of that? A gun right to your
head, was she [Joan] thinking of her husband, who was
going to take care of him? Was she thinking about her

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38 Combs v. Coyle No. 97-4369
criminality of his conduct or to conform his conduct to
the requirements of law.
Number 4, the youth of the defendant.
Number 5, the defendant’s lack of significant history
of prior criminal convictions and delinquency
adjudications.
Number 6, if the defendant was [a] participant in the
offense but not the principal offender, the degree of the
defendant’s participation in the offense and the degree of
the defendant’s participation in the acts which led to the
death of the victim.
And number 7, any other factors that are relevant to the
issue of whether the defendant should be sentenced to
death.
Keep in mind that all of these specific factors may not
be present in this case nor need they all be present before
you can find that the aggravating circumstance is not
sufficient beyond a reasonable doubt to outweigh the
factors in mitigation of the sentence of death. Likewise
the existence of any of the mitigating factors I have
described to you does not preclude or prevent the
imposition of a sentence of death if you find that the
aggravating circumstance still does outweigh the
mitigating factors by proof beyond a reasonable doubt.
R. at 1434-36; J.A. at 2804-06.
This instruction was clearly improper under Ohio law. In
Ohio v. DePew, 528 N.E.2d 542 (Ohio 1988), cert. denied,
489 U.S. 1042 (1989), the defendant contended that an
instruction on all mitigating factors, including ones
inapplicable to the case at hand, impermissibly focuses the
jury’s attention on the absence of mitigating factors. See id.
at 557. The court held that “[i]f the defendant chooses to
refrain from raising some of or all of the factors available to
him, those factors not raised may not be referred to or
commented upon by the trial court or the prosecution.” Id.;
see also Ohio v. Bey, 709 N.E.2d 484, 495 (Ohio), cert.
denied, --- U.S. ---, 120 S. Ct. 587 (1999); Ohio v. Keith, 684
N.E.2d 47, 65 (Ohio 1997), cert. denied, 523 U.S. 1063
No. 97-4369 Combs v. Coyle 7
1Lentz held that “[w]hen a criminal defendant is represented by two
different attorneys from the same public defender’s office at trial and on
direct appeal, res judicata bars a claim of ineffective assistance of trial
counsel raised for the first time in a petition for postconviction relief
when such claim could have been made on direct appeal without resort to
evidence beyond the record, unless the defendant proves that an actual
conflict of interest enjoined appellate counsel from raising ineffective
assistance of trial counsel on direct appeal.” Lentz, 639 N.E.2d at 784
syllabus.
Cole, 443 N.E.2d 169 (Ohio 1982). In Perry, the Ohio
Supreme Court held that “[u]nder the doctrine of res judicata,
a final judgment of conviction bars a convicted defendant
who was represented by counsel from raising and litigating in
any proceeding except an appeal from that judgment, any
defense or any claimed lack of due process that was raised or
could have been raised by the defendant at the trial, which
resulted in that judgment of conviction, or on an appeal from
that judgment.” Perry, 226 N.E.2d at 106 syllabus para. 9. In
Cole, the court recognized that there are exceptions to the
absolute application of the Perry rule in proceedings for post-
conviction relief when the criminal defendant claims
ineffective assistance of trial counsel. See Cole, 443 N.E.2d
at 171. The Cole court reasoned, however, that when a
defendant, “upon direct appeal, was represented by new
counsel who was in no way enjoined from asserting the
ineffectiveness of appellant’s trial counsel and [when] such
question of effective counsel could fairly be determined
without examining evidence outside the record, none of the
qualifications engrafted upon the Perry decision is apposite.”
Id. at 171. The Ohio Supreme Court later commented that
“Cole recognizes that res judicata does not apply when trial
and appellate counsel are the same, due to the lawyer’s
inherent conflict of interest.” Ohio v. Lentz, 639 N.E.2d 784,
786 (Ohio 1994).1
Combs asserts that the Cole rule requiring defendants to
raise ineffectiveness claims on direct appeal does not apply to
him because he did not have new appellate counsel. At trial,
Combs was represented by two attorneys, Timothy A. Hickey
and Chuck R. Stidham. On direct appeal, Stidham continued

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8 Combs v. Coyle No. 97-4369
2This point is irrelevant to the determination of whether the rule of
Cole was regularly applied to situations such as Combs’s at the time of
his appeal.
his representation of Combs and was joined by new co-
counsel, R. Fred Hoefle. Combs argues that the same conflict
of interest that would deter an attorney from alleging his own
ineffectiveness is present when that attorney is simply joined
by a new attorney on appeal.
The State acknowledges that counsel cannot be expected to
raise his own ineffectiveness on appeal, but argues that res
judicata was properly applied to Combs’s situation. First, the
State asserts that Combs’s new counsel actually raised a claim
of ineffective assistance of counsel against co-counsel on
direct appeal, thus proving that there was no conflict.2
Second, citing Ohio v. Zuern, Nos. C-900481, C-910229,
1991 WL 256497 (Ohio Ct. App. 1st Dist. Dec. 4, 1991)
(unpublished opinion), the State argues that the rule in Cole
applies as a matter of law to a situation in which new co-
counsel participates in the appeal. Zuern presented a situation
nearly identical to the instant case. In Zuern, the defendant
challenged the state trial court’s dismissal of post-conviction
claims of ineffective assistance of counsel pursuant to Cole,
arguing that res judicata was inapplicable because his
appellate counsel consisted of one of his two trial attorneys
joined by one new appellate counsel. See Zuern, 1991 WL
256497, at *11. The court of appeals rejected the defendant’s
argument: “Unless we presume . . . that new co-counsel
entering upon a criminal case at the appellate level would
deliberately not exercise his professional judgment or duty to
assert the ineffectiveness of his co-counsel at trial if the
record demonstrated a basis for such a claim, a presumption
we adamantly reject, we perceive no reason why the reference
in Cole to ‘new counsel’ would not embrace new co-counsel
as well as new independent counsel.” Id. at *12; see also
Ohio v. Swiger, 708 N.E.2d 1033, 1039 (Ohio Ct. App. 9th
Dist. 1998) (holding res judicata applicable when appellant
was represented on direct appeal by trial counsel and a second
new attorney); Ohio v. Landrum, No. 98 CA 2401, 1999 WL
No. 97-4369 Combs v. Coyle 37
C. Trial Errors Identified by the Ohio Supreme Court
In its review of Combs’s conviction and sentence, the Ohio
Supreme Court found that several trial court errors had been
committed, although that court determined that these errors
did not warrant reversal. Because Combs will in all
probability be retried for these killings, we will now briefly
discuss the errors identified by the state court so that these
errors will not be repeated.
1. Improper Penalty Phase Jury Instruction
At the conclusion of Combs’s sentencing hearing, the trial
court instructed the jury on all seven statutory mitigating
factors, rather than just the two raised by defense counsel at
the hearing. The instruction read:
What are mitigating factors? The statute provides
certain mitigating factors, some of which you may not
apply to this hearing. Mitigating factors are factors that
while they do not justify an excuse or justify or excuse
the crime of aggravated murder, nevertheless may be
considered by you as extenuating, lessening, weakening,
excusing to some extent or reducing the degree of the
defendant’s blame. You are to weigh as mitigating
factors as you may deem applicable in this case the
nature and circumstances of the offense, the history,
background and character of the defendant, and the
following factors which are mentioned by way of
illustration and not for the purpose of limiting your
consideration.
These seven mitigating factors are defined by statute as
follows; number 1, whether the victim of the offense
induced or facilitated it.
Number 2, whether it is unlikely that the offense would
have been committed but for the fact the defendant was
under duress, coercion, or strong provocation.
Number 3, whether at the time of committing the
offense the defendant because of a mental disease or
defect lacked substantial capacity to appreciate the

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36 Combs v. Coyle No. 97-4369
18No harmless error analysis is necessary for claims of ineffective
assistance of counsel. See Kyles v. Whitley, 514 U.S. 419, 435-36 (1995).
said that he was going to be with his father, who was dead. R.
at 1192; J.A. at 2612 (Charles Hogue Test.); R. at 942 (Tony
Liming Test.). Combs also argued that the car chase just prior
to the shootings was not an effort to hunt the two women
down, but rather an effort to talk with Peggy Schoonover after
other channels of communication had been cut off.
The two critical errors by defense counsel bolstered the
State’s case and made Combs’s explanation of the events
seem less likely. Without Fisher’s testimony and without the
use of Combs’s “talk to my lawyer” statement, the State’s
evidence of purpose and prior calculation and design would
have been much weaker. We therefore conclude that absent
defense counsel’s errors, there is a reasonable probability that
the jury would have concluded that the State did not meet its
burden of proving the two contested elements, and thus that
the jury would have had a reasonable doubt about Combs’s
guilt.
Federal habeas relief is available to petitioners in state
confinement as a result of a proceeding that was rendered
fundamentally unfair by a violation of the Constitution, laws,
or treaties of the United States. See Norris, 146 F.3d at 323
(citing Estelle v. McGuire, 502 U.S. 62, 68 (1991)). The
Supreme Court has explained that “[a]n ineffectiveness claim,
. . . as our articulation of the standards that govern decision of
such claims makes clear, is an attack on the fundamental
fairness of the proceeding whose result is challenged.”
Strickland, 466 U.S. at 697. Combs has satisfied both prongs
of the Strickland test, and in so doing he has demonstrated
that his “counsel’s errors were so serious as to deprive [him]
of a fair trial, a trial whose result is reliable.” Strickland, 466
U.S. at 687. He is therefore entitled to a conditional grant of
habeas relief.18
No. 97-4369 Combs v. Coyle 9
3Even today, it is not clear that the Zuern rule would qualify as a
firmly established state procedural rule. The Ohio Supreme Court has
never spoken on the issue, and not all the courts of appeals agree with the
outcome in Zuern. Furthermore, the reasoning in Zuern seems to be in
tension with that of the Supreme Court of Ohio in Lentz. Lentz can be
read for the proposition that if a new attorney represents a defendant on
appeal, res judicata applies unless there is an actual conflict. There may
well be an actual conflict in a situation in which trial counsel is simply
joined by a new attorney on direct appeal, thus suggesting that the per se
rule of Zuern is the incorrect approach.
22626, at *12 (Ohio Ct. App. 4th Dist. Jan. 11, 1999)
(unpublished opinion) (same); Ohio v. Broom, No. 72581,
1998 WL 230425, at *4 (Ohio Ct. App. 8th Dist. May 7,
1998) (unpublished opinion) (same); Ohio v. Steffen, No. C-
930351, 1994 WL 176906, at *3 (Ohio Ct. App. 1st Dist. May
11, 1994) (unpublished opinion) (same); Ohio v. Jamison, No.
C-910736, 1992 WL 333011, at *5 (Ohio Ct. App. 1st Dist.
Nov. 10, 1992) (unpublished opinion) (following Zuern to
hold that “the phrase ‘new counsel’ includes new co-counsel
as well as new independent counsel,” such that res judicata
may be invoked to bar assertion of ineffective assistance of
counsel claims). But see Ohio v. Evans, No. L-97-1134, 1998
WL 351884, at *4 (Ohio Ct. App. 6th Dist. June 19, 1998)
(unpublished opinion) (“[W]e agree with the trial court that
one additional counsel on appeal does not permit the
application of res judicata to claims of ineffective assistance
of counsel. It is unlikely that, as co-counsel with [trial
counsel], [new counsel] would be inclined to assert a claim on
appeal for ineffective assistance of trial counsel.”).
However, Zuern was not decided until after the court of
appeals had ruled on Combs’s direct appeal.3 We must
instead look to established state law at the time Combs
pursued his appeal. Cole was the authoritative case at that
time, and Cole does not speak to a situation in which trial
counsel continues on appeal with the addition of a new co-

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10 Combs v. Coyle No. 97-4369
4In a previous decision, we cited to the court of appeals’s opinion in
Combs, 652 N.E.2d at 209, as “holding that post-conviction relief is not
available by virtue of the doctrine of res judicata to address constitutional
claims that could have been raised on direct appeal from the conviction
and sentence.” Norris v. Schotten, 146 F.3d 314, 332 (6th Cir.), cert.
denied, --- U.S. ---, 119 S. Ct. 348 (1998). Norris did not involve the
issue of whether res judicata applies to bar a claim of ineffective
assistance of trial counsel when one new co-counsel joins trial counsel in
the appeal. Although in Norris we relied on Combs’s explanation of the
Perry rule, we did not express an opinion as to whether that rule was
properly applied to the facts of the Combs case.
counsel.4 Because there is ambiguity surrounding the issue
and because the State cannot point to a case firmly
establishing as of the time of Combs’s appeal that
ineffectiveness claims must be brought on direct appeal when
trial counsel also serves as co-counsel on appeal, we are
unable to conclude that a firmly established state procedural
rule existed. Indeed, at the time Combs’s appeal was filed it
would have been entirely reasonable to conclude that
Combs’s new counsel did not meet the Cole standard of being
“in no way enjoined from asserting the ineffectiveness of
appellant’s trial counsel,” Cole, 443 N.E.2d at 171, and thus
that res judicata would not apply.
Because we conclude that no firmly established procedural
rule mandated the bringing of ineffectiveness claims on direct
appeal in Combs’s situation, we may review the merits of all
of those claims, including claims that the state court deemed
barred by res judicata.
B. Ineffective Assistance of Trial Counsel at the
Culpability Phase
We review a district court’s denial of habeas corpus relief
de novo, but we review any findings of fact made by the
district court for clear error. Findings of fact made by a state
court are entitled to complete deference if supported by the
evidence. See Norris v. Schotten, 146 F.3d 314, 323-24 (6th
No. 97-4369 Combs v. Coyle 35
17As Combs points out, the district court acknowledged that Fisher’s
testimony was prejudicial. J.A. at 132 (Dist. Ct. Op.).
(naming Dr. Fisher’s testimony first in connection with the
purpose element).17
Defense counsel’s failure to object to the use of Combs’s
“talk to my lawyer” statement was similarly damaging. Just
as Dr. Fisher’s testimony partly relieved the State of its
burden of proof on an element of the offense, the State
strategically used Combs’s protected silence as evidence that
Combs was acting rationally, and thus with purpose and prior
calculation, after the shootings; the trial court’s instruction
encouraged the jury to make that inference.
Of course, the State presented other evidence of Combs’s
purpose and prior calculation and design. As the Ohio
Supreme Court pointed out:
Combs spent a considerable part of the afternoon of the
murders searching for a shotgun. He asked two people
for a shotgun, and eventually drove over eighty miles
before returning to Cincinnati with a shotgun. The
evidence indicates he stole the shotgun he used. After he
drove back to Cincinnati, he confronted Joan and Peggy
and initiated a car chase over several blocks, eventually
cornering them at the Holiday Park Tower office
building. He deliberately knocked out a window in their
car and fired a shotgun into each woman’s head at close
range. Those facts alone establish both purposefulness
and prior calculation and design.
Combs, 581 N.E.2d at 1076. However, Combs offered an
alternative reason for his search for a gun; rather than
spending the afternoon searching for the means to commit
two murders, Combs suggested that he was searching for a
means to kill himself. There was evidence that Combs was
contemplating suicide at the time. One witness testified that
Combs sounded suicidal just days before the incident, and
another witness testified that just before the shootings, Combs

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34 Combs v. Coyle No. 97-4369
16Guilt means guilt of the underlying offenses; Combs must therefore
show not that a factfinder would have had a reasonable doubt about his
culpability for the killings, but rather that a factfinder would have had a
reasonable doubt about his purpose or prior calculation and design.
Strickland instructed that “[p]revailing norms of practice as
reflected in American Bar Association standards and the like,
e.g., ABA Standards for Criminal Justice 4-1.1 to 4-8.6 (2d
ed. 1980) (“The Defense Function”), are guides to
determining what is reasonable, but they are only guides.”
Strickland, 466 U.S. at 688. ABA Standard 4-1.2(c) states
that “[s]ince the death penalty differs from other criminal
penalties in its finality, defense counsel in a capital case
should respond to this difference by making extraordinary
efforts on behalf of the accused.” ABA S TANDARDS FOR
C RIMINAL J USTICE P ROSECUTION FUNCTION AND DEFENSE
FUNCTION 120 (3d ed. 1993).
5. Prejudice
In order to establish prejudice, Combs “need not show that
counsel’s deficient conduct more likely than not altered the
outcome in the case.” Strickland, 466 U.S. at 693. He must
instead show that there is a reasonable probability that, but for
counsel’s errors, the factfinder would have had a reasonable
doubt about his guilt.16 See id. at 695. The defense theory
was that Combs’s intoxication rendered him unable to act
with purpose or prior calculation and design, and yet defense
counsel made two crucial errors that substantially undercut
this theory. We conclude that each of these errors is
sufficiently prejudicial to satisfy the Strickland standard.
Presentation of Dr. Fisher’s testimony is perhaps the most
devastating error. The testimony of the sole defense expert
that Combs, although intoxicated, nevertheless acted with
purpose and intent was obviously damaging to the defense.
Furthermore, Dr. Fisher’s testimony provided the State with
its most powerful evidence of purpose. R. at 1226-27; J.A. at
2744-45 (State’s Closing Argument at Culpability Phase)
No. 97-4369 Combs v. Coyle 11
5The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L.
104-132, 110 Stat. 1214 (1996), is inapplicable to this case because
Combs filed his petition for a writ of habeas corpus in the district court
before the enactment of the statute. See Lindh v. Murphy, 521 U.S. 320,
336 (1997).
Cir.), cert. denied, --- U.S. ---, 119 S. Ct. 348 (1998).5 The
presumption of correctness accorded to state court findings
“only applies to basic, primary facts, and not to mixed
questions of law and fact,” and it “applies to implicit findings
of fact, logically deduced because of the trial court’s ability to
adjudge the witnesses’ demeanor and credibility.” Groseclose
v. Bell, 130 F.3d 1161, 1164 (6th Cir. 1997) (quoting
McQueen v. Scroggy, 99 F.3d 1302, 1310 (6th Cir. 1996),
cert. denied, 520 U.S. 1257 (1997)), cert. denied, 523 U.S.
1132 (1998).
1. The Strickland Standard
“The benchmark for judging any claim of ineffectiveness
must be whether counsel’s conduct so undermined the proper
functioning of the adversarial process that the trial cannot be
relied on as having produced a just result.” Strickland v.
Washington, 466 U.S. 668, 686 (1984). The well-known two
part test for evaluating ineffectiveness claims was first
articulated in Strickland:
First, the defendant must show that counsel’s
performance was deficient. This requires showing that
counsel made errors so serious that counsel was not
functioning as the “counsel” guaranteed the defendant by
the Sixth Amendment. Second, the defendant must show
that the deficient performance prejudiced the defense.
This requires showing that counsel’s errors were so
serious as to deprive the defendant of a fair trial, a trial
whose result is reliable.
Id. at 687; see also, e.g., Tucker v. Prelesnik, 181 F.3d 747,
754 (6th Cir. 1999); Chandler v. Jones, 813 F.2d 773, 781
(6th Cir. 1987).

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12 Combs v. Coyle No. 97-4369
With regard to the performance prong of the inquiry, the
defendant must show that counsel’s representation fell below
an objective standard of reasonableness. Judicial scrutiny of
performance is highly deferential, and “[a] fair assessment of
attorney performance requires that every effort be made to
eliminate the distorting effects of hindsight, to reconstruct the
circumstances of counsel’s challenged conduct, and to
evaluate the conduct from counsel’s perspective at the time.”
Strickland, 466 U.S. at 689. Therefore, this court should
judge whether, in light of all the circumstances viewed at the
time of counsel’s conduct, counsel’s “acts or omissions were
outside the wide range of professionally competent
assistance.” Id. at 690. Furthermore, “strategic choices made
after thorough investigation of law and facts relevant to
plausible options are virtually unchallengeable; and strategic
choices made after less than complete investigation are
reasonable precisely to the extent that reasonable professional
judgments support the limitations on investigation.” Id. at
690-91; see also Meeks v. Bergen, 749 F.2d 322, 328 (6th Cir.
1984). Finally, when analyzing an attorney’s performance,
“[i]t will generally be appropriate for a reviewing court to
assess counsel’s overall performance throughout the case in
order to determine whether the ‘identified acts or omissions’
overcome the presumption that counsel rendered reasonable
professional assistance.” Kimmelman v. Morrison, 477 U.S.
365, 386 (1986) (quoting Strickland, 466 U.S. at 690).
As for the prejudice prong of the Strickland test, the Court
instructed: “The defendant must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.
A reasonable probability is a probability sufficient to
undermine confidence in the outcome.” Strickland, 466 U.S.
at 694. The prejudice prong “focuses on the question whether
counsel’s deficient performance renders the result of the trial
unreliable or the proceeding fundamentally unfair.” Lockhart
v. Fretwell, 506 U.S. 364, 372 (1993). Therefore, the
prejudice inquiry must not focus solely on mere outcome
determination; attention must be given to “whether the result
No. 97-4369 Combs v. Coyle 33
have been cumulative.
14Liming was questioned on direct by Stidham.
15Ohio Rule of Evidence 404(B) reads: “Evidence of other crimes,
wrongs, or acts is not admissible to prove the character of a person in
order to show that he acted in conformity therewith. It may, however, be
admissible for other purposes, such as proof of motive, opportunity,
intent, preparation, plan, knowledge, identity, or absence of mistake or
accident.” O HIO R. EVID. 404(B) (Banks-Baldwin 1995).
The Ohio Supreme Court has instructed that Rule 404(B) “must be
construed against admissibility, and the standard for determining
admissibility of such evidence is strict.” Ohio v. Broom, 533 N.E.2d 682,
686 syllabus para. 1 (Ohio 1988), cert. denied, 490 U.S. 1075 (1989).
and would also have enabled counsel to respond to Zompero’s
allegedly inaccurate testimony.
Additionally, Combs’s counsel made no attempt to redact
portions of a videotaped testimony that may have been
prejudicial to Combs. At trial, the videotaped testimony of
Tony Liming, who was then fifteen years old, was presented
by the prosecution.14 Liming was with Combs when he
obtained a gun on the day of the shootings; he also testified as
to Combs’s use of drugs and alcohol on a regular basis and on
the day in question. At one point, Stidham asked Liming
what his feelings toward Combs were. Liming answered: “He
is, I guess I liked him, I mean I liked him. He like did stuff,
stole stuff from my mom and I didn’t like that.” R. at 944;
J.A. at 2631 (Tony Liming Test.). Combs argues that counsel
should have sought to have this “highly prejudicial ‘other
acts’” evidence redacted prior to trial pursuant to Ohio Rule
of Evidence 404(B),15 and we agree. The statement is likely
excludable under Rule 404(B); it does not go to any
permissible purpose, and it might tend to leave the jury with
an overall bad impression of Combs’s character. Considering
the potential prejudice from the statement, counsel clearly
erred by failing to seek redaction.
Counsel’s overall performance is particularly shocking
given the fact that this case involves the death penalty.

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32 Combs v. Coyle No. 97-4369
13Although defense counsel did present substantial testimonial
evidence of Combs’s intoxication, no corroborating physical evidence
was presented. Therefore, the evidence of alcohol containers would not
establish one of the elements of its case in chief. Quite
simply, this testimony was completely devastating to the
defense, and counsel’s decision to present it was objectively
unreasonable.
4. Defense Counsel’s Overall Performance at the
Culpability Phase
We next proceed to assess defense counsel’s overall
performance throughout the culpability phase of Combs’s
trial. We acknowledge that defense counsel presented
significant evidence that Combs was intoxicated on the day of
the shootings. However, the errors that we have identified are
fundamental errors that were severely damaging to Combs’s
defense. In fact, we believe that each of the errors that we
have identified is independently sufficient to warrant a
conclusion that Combs’s counsel’s performance was
constitutionally deficient. However, these errors were
compounded by other failures on the part of defense counsel.
For example, Combs’s counsel failed to investigate and to
present available physical evidence of Combs’s intoxication
on the day of the shootings. Combs argues that, had defense
counsel investigated this matter, they would have found out
from his mother that “when [she] got the car back [from the
police after their investigation] there were wine cooler bottles,
and beer cans in the car” and that “[a] cooler in the back still
contained two beers.” J.A. at 1304 (Aff. of Geraldine
Combs). At trial, Officer Zompero, who is a police
criminalist, testified that he had conducted a search of
Combs’s car, but had not found any kind of container that
would be used to hold alcohol such as a beer can, wine cooler
can, or whiskey bottle. R. at 1081; J.A. at 2700 (Zompero
Test.). Investigating the presence of alcohol containers in the
car would have enabled defense counsel to present some
corroborating physical evidence of Combs’s intoxication,13
No. 97-4369 Combs v. Coyle 13
6This claim was raised on direct appeal and denied. It was therefore
properly preserved for our review.
of the proceeding was fundamentally unfair or unreliable.” Id.
at 369.
Both the performance and prejudice components of the
ineffectiveness inquiry are mixed questions of law and fact
entitled to de novo review. See Strickland, 466 U.S. at 698;
Groseclose, 130 F.3d at 1164 (“An ineffective assistance of
counsel claim presents a mixed question of law and fact, for
which both the state-court and district-court determinations
are subject to de novo review by this court.”).
2. Defense Counsel’s Failure to Object to the
Unconstitutional Use of Combs’s “Talk to My
Lawyer” Statement
Combs first claims that his trial counsel provided
ineffective representation by failing to object both to the
prosecution’s use of a statement made by Combs to a police
officer and to the trial court’s sua sponte jury instruction
concerning the purposes for which the jury could consider
that statement.6 As the Ohio Supreme Court found, after
Combs had been shot Cincinnati police officer Douglas
Ventre arrived on the scene and found Combs sitting on the
ground and holding a shotgun. See Combs, 581 N.E.2d at
1074. Ventre then pulled the shotgun away from Combs and
asked Combs what had happened, to which Combs replied
“the guy shot me.” Id. (internal quotation marks omitted).
Ventre later repeated the same question as Combs was being
placed into an ambulance, and Combs “told [Ventre] to talk
to his lawyer.” Id. (internal quotation marks omitted). After
Officer Ventre testified about this “talk to my lawyer”
statement, the trial court instructed:
Members of the jury, I am going to give you a special
instruction at this time based upon the testimony that you
heard the defendant Ronald Dean Combs has a
constitutional right not to speak to members of law

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14 Combs v. Coyle No. 97-4369
enforcement without counsel and not to speak to them.
You cannot draw any inferences for or against the
defendant because he may have requested an attorney or
made no further statements to Officer Ventre when he
was on the stretcher as Officer Ventre testified to.
You may consider this evidence, however, as it relates
to the elements of purpose and prior calculation and
design but what weight you give to this testimony
depends upon your findings and the weight that you
attribute to this testimony in this regard so please
remember that.
R. at 1052-53; J.A. at 2673-74. Defense counsel did not
object to this jury instruction, nor did they object to the
prosecution’s use of this statement at trial. In closing
argument, the prosecution stated:
Talk to my lawyer. Talk to my lawyer. Does that sound
like someone who’s so intoxicated he doesn’t know what
is going on? Isn’t that evidence that he realizes the
gravity of the situation and at this time gave that
particular comment or response to Officer Ventre?
R. at 1255; J.A. at 2761. Combs argues that “the trial court’s
instruction permitted, and the prosecution exploited, Mr.
Combs’ exercise of his right to consult with counsel as
substantive evidence on the ultimate culpability phase issue
— Mr. Combs’ intent.” Pet’r Br. at 18.
In order to decide whether counsel’s failure to object to the
use of the “talk to my lawyer” statement was deficient, we
must first determine whether the use of this statement was
constitutionally defective such that any reasonable counsel
would have objected under the circumstances. Although
Combs’s statement referred not to silence but to his right to
an attorney, the admissibility of the statement is properly
analyzed as a comment on prearrest silence. See Wainwright
v. Greenfield, 474 U.S. 284, 295 n.13 (1986) (“With respect
to post-Miranda warnings ‘silence,’ we point out that silence
does not mean only muteness; it includes the statement of a
No. 97-4369 Combs v. Coyle 31
such as Combs’s state of despondency, his difficult past, his
history of severe drug and alcohol abuse, and his stormy
relationship with Peggy Schoonover. R. at 1176-78; J.A. at
2579-81 (Fisher Test.). Additionally, Fisher supported the
contention that Combs was under the influence when he shot
the victims. However, Stidham testified that defense counsel
put Fisher on the stand in an effort “to establish that Combs
could not act purposely and intentionally because of his
diminished capacity,” and Stidham admitted that he was
“surprised” when Fisher testified to the opposite. J.A. at 2920
(Stidham Dep.). Fisher’s opinion regarding whether Combs
lacked the requisite intent to commit the crimes was crucial
to the defense theory; defense counsel’s failure to have
questioned Fisher in this regard prior to trial is inexcusable.
Defense counsel should have known Fisher’s opinion on this
ultimate issue and should have prepared accordingly.
Regardless of whether Combs’s counsel should have
known or instead actually knew Fisher’s opinion regarding
Combs’s intent, however, counsel’s decision to put him on
the stand was objectively unreasonable. In Ohio, evidence of
voluntary intoxication “may be considered in determining
whether an act was done intentionally or with deliberation or
premeditation.” Ohio v. Fox, 428 N.E.2d 410, 412 (Ohio
1981). Thus, establishing that a defendant was intoxicated
when he committed the crime in question is not, in and of
itself, helpful; the evidence must also lead the factfinder to an
inference that intoxication deprived the defendant of the
ability to form intent. Indeed, Stidham testified that the
defense presented Fisher in order to establish that Combs
could not have been acting purposefully. Fisher’s testimony
directly contradicted the sole defense theory that Combs
lacked the requisite intent to commit murder. Although
defense counsel presented substantial testimonial evidence
that Combs was in fact intoxicated at the time of the
shootings, this testimony was rendered worthless when the
defense’s own expert testified that Combs’s intoxication did
not legally excuse his crime. Furthermore, not only did
Fisher’s testimony destroy any hope of a successful
intoxication defense, but it also helped the prosecution to

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30 Combs v. Coyle No. 97-4369
12Combs’s counsel chose to put Dr. Fisher on the stand again at the
sentencing phase, and Dr. Fisher testified, this time on direct, that Combs
acted with intent. Dr. Fisher stated: “Well, it is my opinion that a person
with Mr. Combs’ exact history of drug and alcohol abuse, drug and
alcohol ingestion, and treatment would still be able to control ordinary
behaviors, plan behavior in a purposeful way, carry out behavior in a
purposeful way. I think his judgment would have been a continuated [sic]
to an extent and I think that one would see perhaps a greater degree of
impulsivity in his behavior but I think that the basic issue of control
would still be intact with his history.” R. at 1385; J.A. at 2598 (Fisher
Test.).
was impaired by what was happening to him and what he was
ingesting.” R. at 1187; J.A. at 2590 (Fisher Test.). On re-
cross, however, Dr. Fisher gave the same testimony regarding
intent:
Q. But, Doctor, was it so impaired that he could not
— wasn’t so impaired that he could not form this intent?
A. That is correct, yes.
R. at 1188; J.A. at 2591 (Fisher Test.). The prosecutor then
emphasized Dr. Fisher’s testimony regarding intent three
times in closing arguments.12 Combs argues that counsel’s
failure to anticipate, suppress, prepare for, object to, or avoid
repetition of this damaging testimony rendered his
performance constitutionally deficient.
Although Combs’s counsel’s decision to present Dr.
Fisher’s testimony may be considered a strategic one, it was
a decision made without undertaking a full investigation. Cf.
Strickland, 466 U.S. at 691 (“[C]ounsel has a duty to make
reasonable investigations or to make a reasonable decision
that makes particular investigations unnecessary.”); Horton v.
Zant, 941 F.2d 1449, 1462 (11th Cir. 1991) (“[O]ur case law
rejects the notion that a ‘strategic’ decision can be reasonable
when the attorney has failed to investigate his options and
make a reasonable choice between them.”), cert. denied, 503
U.S. 952 (1992). At trial, Dr. Fisher did present several
aspects of Combs’s history that were psychologically relevant,
No. 97-4369 Combs v. Coyle 15
desire to remain silent as well as of a desire to remain silent
until an attorney has been consulted.”). Combs’s statement is
best understood as communicating a desire to remain silent
outside the presence of an attorney.
Combs grounds his argument about the admissibility of the
statement in the Supreme Court’s decision in Doyle v. Ohio,
426 U.S. 610 (1976). In Doyle, the petitioner took the stand
at his trial for selling marijuana and explained, for the first
time, that he had been framed. See id. at 612-13. For
impeachment purposes, the prosecutor asked the petitioner
why he had not told this story immediately after his arrest.
See id. at 613. The petitioner was convicted, and he appealed
on the ground that cross-examination regarding his post-arrest
silence was error. See id. at 615. The Supreme Court held
“that the use for impeachment purposes of petitioners’
silence, at the time of arrest and after receiving Miranda
warnings, violated the Due Process Clause of the Fourteenth
Amendment.” Id. at 619. The theory underlying Doyle is that
while Miranda warnings contain no express assurance that
silence will carry no penalty, “such assurance is implicit to
any person who receives the warnings.” Id. at 618. On this
reasoning, the Court concluded that it would be
fundamentally unfair first to induce a defendant to remain
silent through Miranda warnings and then to penalize the
defendant who relies on those warnings by allowing the
defendant’s silence to be used to impeach an exculpatory
explanation offered at trial. See id.
Later cases have restricted Doyle and have reaffirmed that
the “fundamental unfairness” identified by the Court derives
from the implicit assurances of the Miranda warnings. In
Jenkins v. Anderson, 447 U.S. 231 (1980), the Court held that
due process is not violated by the impeachment use of
prearrest, pre-Miranda warnings silence, see id. at 238-39. In
Fletcher v. Weir, 455 U.S. 603 (1982), the Court held that
impeachment use of post-arrest, pre-Miranda warnings
silence does not offend due process, see id. at 607. The Weir
Court explained that Doyle was a case in which the
government had actually induced silence with Miranda

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16 Combs v. Coyle No. 97-4369
7The Fifth Amendment provides in relevant part that no person “shall
be compelled in any criminal case to be a witness against himself.” U.S.
CONST. amend. V.
warnings, and it noted that any broadening of Doyle to a
situation in which a defendant had not yet received Miranda
warnings — even if the defendant was in custody — was
unsupported by the reasoning of Doyle. See id. at 605-06.
In the instant case, Combs had not received Miranda
warnings prior to his “talk to my lawyer” statement. The
Ohio Supreme Court concluded that this was of no
significance based on the following reasoning:
[A]t the point when Combs was placed in the ambulance,
we find that Combs was in custody and had a right to
remain silent, consult a lawyer, and receive a Miranda
warning. When he arrived at the scene, Officer Ventre
personally took the shotgun from Combs; there were two
women dead from shotgun blasts in the adjacent car; and
Ventre had been at the scene for some ten to fifteen
minutes. Ventre’s questioning, without a Miranda
warning, violated those rights.
Combs, 581 N.E.2d at 1075-76. However, even if Combs
should have received Miranda warnings prior to his “talk to
my lawyer” statement, the Doyle rationale is still inapplicable.
As we have explained, the Doyle line of cases clearly rests on
the theory that Miranda warnings themselves carry an implicit
assurance that silence will not be penalized; actual receipt of
the warnings is key. Therefore, the comment on Combs’s
pre-Miranda silence did not violate due process.
This does not, however, rule out the possibility that such
comment is a violation of Combs’s Fifth Amendment
privilege against self-incrimination.7 In Jenkins, in addition
to ruling that impeachment use of a defendant’s prearrest
silence is not violative of due process, the Court also held that
such use does not offend the Fifth Amendment’s privilege
against self-incrimination. See Jenkins, 447 U.S. at 238. The
No. 97-4369 Combs v. Coyle 29
culpability phase regarding Combs’s drug and alcohol abuse
and his intoxication on the day of the events; on cross-
examination, Dr. Fisher expressed the opinion that, although
intoxicated, Combs acted purposefully and intentionally.
Defense counsel objected to the prosecutor’s question, but the
objection was overruled. The exchange on cross proceeded
as follows:
Q. Dr. Fisher, you have rendered an opinion that at
the time, July 15th, the defendant was under the
influence, is that correct?
A. That’s my opinion, yes.
Q. You are not however saying that the acts he did on
that particular day were not done purposely?
MR. STIDHAM: Objection.
THE COURT: Overruled.
A. I certainly am not, no.
Q. So he may have been under the influence or your
opinion based on what you were told he was under the
influence but at the same time he was acting intentionally
and purposely when he acted as he did on July 15th; is
that correct?
MR. STIDHAM: Objection.
THE COURT: Overruled.
A. I certainly believe that he was, yes.
R. at 1183; J.A. at 2586 (Fisher Test.).
On redirect, defense counsel again attempted to show that
intoxication has an effect on one’s ability to make judgments.
Defense counsel elicited Dr. Fisher’s testimony that “it would
be my conclusion psychologically that [Combs’s] judgment

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28 Combs v. Coyle No. 97-4369
(B) Exclusion discretionary.
Although relevant, evidence may be excluded if its
probative value is substantially outweighed by
considerations of undue delay, or needless presentation
of cumulative evidence.
OHIO R. EVID . 403. The Ohio Supreme Court concluded that
the comments regarding the “talk to my lawyer” statement
were improper under these rules, stating:
Additionally, the “talk to my lawyer” evidence does
not relate to or tend to prove prior calculation and design
or purposefulness. Combs’ comment simply meant that
he was exercising his right to counsel and nothing more.
Even if this remark was initially admissible, Evid.R. 401
and 403 would otherwise invite exclusion from evidence.
No justification is apparent for the instruction that the
evidence related to either purposefulness or prior
calculation and design. Thus, we conclude the trial court
erred in allowing this remark into evidence and in
instructing the jury to consider the remark in relation to
purposefulness and prior calculation and design.
Combs, 581 N.E.2d at 1076.
A reasonable defense attorney would have known that the
admission of the “talk to my lawyer” statement was
prejudicial to the client and would have objected on the basis
of Rule 403. Such an objection would have had at least a
likelihood of success, given the Ohio Supreme Court’s
pronouncement on this issue. A Rule 403 objection to Officer
Ventre’s testimony could have prevented the erroneous
instruction as well as the damaging use of the statement by
the prosecution.
3. Defense Counsel’s Presentation of Dr. Fisher’s
Testimony
Combs next alleges ineffectiveness as a result of counsel’s
preparation of and strategy with regard to Dr. Fisher, the
defense’s only expert witness. Dr. Fisher testified at the
No. 97-4369 Combs v. Coyle 17
petitioner in that case took the stand at his murder trial and
testified that he had killed in self-defense. See id. at 232.
During cross-examination and again during closing
arguments, the prosecutor, referring to the fact that the
petitioner had waited two weeks to report the stabbing,
attempted to impeach the petitioner’s credibility by implying
that he would have come forward earlier if he had truly killed
in self-defense. See id. at 233-34. The Supreme Court easily
disposed of the petitioner’s Fifth Amendment objection to this
use of his prearrest silence, relying on its 1926 decision in
Raffel v. United States, 271 U.S. 494 (1926). Raffel held that
the government may impeach a defendant who takes the stand
in his own defense with his prior silence without violating the
Fifth Amendment. See id. at 499. The Court in Raffel relied
on a waiver theory, reasoning that a defendant waives his
Fifth Amendment immunity from giving testimony by
offering himself as a witness. See id. at 496-97. The Raffel
Court concluded by explaining:
The safeguards against self-incrimination are for the
benefit of those who do not wish to become witnesses in
their own behalf and not for those who do. There is a
sound policy in requiring the accused who offers himself
as a witness to do so without reservation, as does any
other witness. We can discern nothing in the policy of
the law against self-incrimination which would require
the extension of immunity to any trial or to any tribunal
other than that in which the defendant preserves it by
refusing to testify.
Id. at 499. The Jenkins Court therefore reasoned that the rule
of Raffel permits impeachment use of prearrest silence.
The Jenkins Court went on to explain that permitting the
impeachment use of a defendant’s prior silence does not
unconstitutionally burden the exercise of Fifth Amendment
rights. See Jenkins, 447 U.S. at 236-38. The Court noted that
the “‘threshold question is whether compelling the election
impairs to an appreciable extent any of the policies behind the
rights involved.’” Id. at 236 (quoting Chaffin v. Stynchcombe,

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18 Combs v. Coyle No. 97-4369
412 U.S. 17, 32 (1973)). Relying on prior decisions, the
Jenkins Court reasoned that the possibility of impeachment by
prior silence does not impermissibly burden the privilege
against self-incrimination. See id. at 236-38. These prior
decisions suggested that a defendant’s real dilemma lies in
determining whether to testify or not; once a defendant has
voluntarily taken the stand, the rule that he must testify fully
does not significantly add to this dilemma and is indeed a
defendant’s obligation, as the privilege against self-
incrimination “cannot be construed to include the right to
commit perjury.” Id. at 238 (quoting Harris v. New York, 401
U.S. 222, 225 (1971)). The Court then explained that “[i]n
determining whether a constitutional right has been burdened
impermissibly, it also is appropriate to consider the legitimacy
of the challenged governmental practice.” Id. at 238. The
Court reasoned that the impeachment use of prearrest silence
“enhance[s] the reliability of the criminal process” by giving
prosecutors the chance to test a defendant’s credibility by
asking him to explain prior inconsistencies. Id. “Once a
defendant decides to testify, ‘[t]he interests of the other party
and regard for the function of courts of justice to ascertain the
truth become relevant, and prevail in the balance of
considerations determining the scope and limits of the
privilege against self-incrimination.’” Id. (quoting Brown v.
United States, 356 U.S. 148, 156 (1958)) (alteration in
original).
Jenkins did not, however, address the question at issue in
this case, namely, whether the use of prearrest silence as
substantive evidence of guilt violates the Fifth Amendment.
See id. at 236 n.2 (leaving this question unresolved). That use
of a defendant’s prearrest silence as substantive evidence of
guilt is significantly different than the use of prearrest silence
to impeach a defendant’s credibility on the stand is clear. In
Griffin v. California, 380 U.S. 609, 615 (1965), the Supreme
Court held that the Fifth Amendment “forbids either comment
by the prosecution on the accused’s [refusal to testify at trial]
or instructions by the court that such silence is evidence of
guilt.” The Court reasoned that a contrary rule would allow
the state to submit as substantive proof of the defendant’s
No. 97-4369 Combs v. Coyle 27
astounded us that we were shocked.” J.A. at 2928 (Stidham Dep.).
11The State argues that the trial court’s sua sponte instruction
following Officer Ventre’s testimony “limited any speculative damage to
Combs,” so that defense counsel’s failure to object was a sound strategic
decision designed not to draw any more attention to the matter.
Appellee’s Br. at 52. However, far from limiting the damage caused by
the admission of the statement, the trial court’s instruction exacerbated it.
The instruction encouraged the jury to use Combs’s prearrest silence as
substantive evidence of purpose and prior calculation and design — the
key issues at trial.
lodged an objection on that basis. Counsel’s failure to have
objected at any point is inexplicable, and we can perceive no
possible strategic reason for such failure.11 Not only did the
failure to object ensure that the jury could use Combs’s
protected silence against him, but it also guaranteed that both
the admission of the statement and the trial court’s instruction
would be analyzed on review only for plain error. Counsel’s
performance with respect to this issue was constitutionally
deficient under the Strickland standard.
Even if Combs’s counsel failed to realize that use of the
“talk to my lawyer” statement as substantive evidence of guilt
might be unconstitutional, counsel still should have objected
to the statement on evidentiary grounds. Ohio Rule of
Evidence 401 provides the definition of “relevant evidence”:
“‘Relevant evidence’ means evidence having any tendency to
make the existence of any fact that is of consequence to the
determination of the action more probable or less probable
than it would be without the evidence.” OHIO R. EVID . 401.
Rule 403 provides:
(A) Exclusion mandatory.
Although relevant, evidence is not admissible if its
probative value is substantially outweighed by the danger
of unfair prejudice, of confusion of the issues, or of
misleading the jury.

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26 Combs v. Coyle No. 97-4369
10In fact, it appears that Combs’s counsel did realize the problems
surrounding the use of the “talk to my lawyer” statement. Stidham
testified in a deposition that the trial court’s instruction on the issue “so
for impeachment purposes, the use of silence as substantive
evidence of guilt does not enhance the reliability of the
criminal process. Just as “every post-arrest silence is
insolubly ambiguous,” Doyle, 426 U.S. at 617, there are many
reasons why a defendant may remain silent before arrest, such
as a knowledge of his Miranda rights or a fear that his story
may not be believed. The probative value of such silence is
therefore minimal. Furthermore, the use of prearrest silence
may even subvert the truthfinding process; because it
pressures the defendant to explain himself or to suffer a court-
sanctioned inference of guilt, the likelihood of perjury is
increased. In sum, permitting the use of a defendant’s
prearrest silence as substantive evidence of guilt would
greatly undermine the policies behind the privilege against
self-incrimination while adding virtually nothing to the
reliability of the criminal process.
In the instant case, Combs clearly invoked the privilege
against self-incrimination by telling the officer to talk to his
lawyer, thus conveying his desire to remain silent without a
lawyer present. Combs never waived this privilege and did
not testify at his trial. Therefore, the prosecutor’s comment
on Combs’s prearrest silence in its case in chief and the trial
court’s instruction permitting the jury to use Combs’s silence
as substantive evidence of guilt violated Combs’s Fifth
Amendment rights.
Defense counsel’s failure to object to the unconstitutional
use of Combs’s “talk to my lawyer statement” clearly fell
below an objective standard of reasonableness. Although the
contours of the privilege against self-incrimination may
sometimes be unclear, that a defendant’s silence cannot be
used as substantive evidence against him at trial is a
fundamental aspect of the privilege. Combs’s counsel should
have realized that the use of Combs’s prearrest silence against
him was at least constitutionally suspect10 and should have
No. 97-4369 Combs v. Coyle 19
guilt his silence by not testifying. See id. at 613 (“No formal
offer of proof is made as in other situations; but the
prosecutor’s comment and the court’s acquiescence are the
equivalent of an offer of evidence and its acceptance.”). Such
proffer of the defendant’s refusal to testify as evidence of
guilt would impermissibly penalize the exercise of the
privilege against self-incrimination and would “cut[] down on
the privilege by making its assertion costly.” Id. at 614.
The circuits that have considered whether the government
may comment on a defendant’s prearrest silence in its case in
chief are equally divided. Three circuits have held that such
use violates the privilege against self-incrimination found in
the Fifth Amendment, relying principally upon Griffin. See
United States ex rel. Savory v. Lane, 832 F.2d 1011, 1017
(7th Cir. 1987); Coppola v. Powell, 878 F.2d 1562, 1568 (1st
Cir.), cert. denied, 493 U.S. 969 (1989); United States v.
Burson, 952 F.2d 1196, 1201 (10th Cir. 1991), cert. denied,
503 U.S. 997 (1992); cf. United States v. Caro, 637 F.2d 869,
876 (2d Cir. 1981) (“Whatever the future impact of Jenkins
may be, we have found no decision permitting the use of
silence, even the silence of a suspect who has been given no
Miranda warnings and is entitled to none, as part of the
Government’s direct case.”; “[W]e are not confident that
Jenkins permits even evidence that a suspect remained silent
before he was arrested or taken into custody to be used in the
Government’s case in chief.”). In Savory, the Seventh Circuit
explained that because the defendant did not take the stand
and because the prosecution referred to the defendant’s
silence as substantive evidence of guilt, the case did not
involve the application of Doyle but rather the application of
Griffin. See Savory, 832 F.2d at 1017. The Seventh Circuit
reasoned that while Griffin involved governmental use of the
defendant’s silence at trial, “[t]he right to remain silent,
unlike the right to counsel, attaches before the institution of
formal adversary proceedings.” Id. at 1017. The court
therefore concluded that Griffin’s prohibition on the use of a
defendant’s silence as substantive evidence of guilt “applies
equally to a defendant’s silence before trial, and indeed, even

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20 Combs v. Coyle No. 97-4369
8The Seventh Circuit distinguished the Doyle line of cases as
follows:
[T]he Doyle rule is predicated on the implied promise of the
Miranda warnings. The cases which have allowed impeachment
by silence rely on the fact that the defendant opens himself to
impeachment by taking the stand. There is, on the other hand,
a constitutional right to say nothing at all about the allegations.
While the presence of Miranda warnings might provide an
additional reason for disallowing use of the defendant’s silence
as evidence of guilt, they are not a necessary condition to such
a prohibition.
Savory, 832 F.2d at 1017-18 (citations omitted).
before arrest.” Id.8 In Coppola, the First Circuit cited Raffel
and Griffin and reasoned that the “broad rule of law” set forth
in those cases “is that where a defendant does not testify at
trial it is impermissible to refer to any fifth amendment rights
that defendant has exercised.” Coppola, 878 F.2d at 1567. It
therefore held that the prosecution’s use of the defendant’s
prearrest silence in its case in chief violated the Fifth
Amendment. See id. at 1568. The Tenth Circuit reached the
same result in Burson: “The general rule of law is that once a
defendant invokes his right to remain silent, it is
impermissible for the prosecution to refer to any Fifth
Amendment rights which defendant exercised. To be sure,
exceptions exist to this rule, such as the use of silence for
impeachment in certain circumstances, but such exceptions
have no applicability to the case before us.” 952 F.2d at 1201
(citation omitted).
Three circuits, on the other hand, have reached the opposite
conclusion. See United States v. Rivera, 944 F.2d 1563, 1568
(11th Cir. 1991); United States v. Zanabria, 74 F.3d 590, 593
(5th Cir. 1996); United States v. Oplinger, 150 F.3d 1061,
1066-67 (9th Cir. 1998). In Rivera, the Eleventh Circuit,
citing Jenkins, held that “[t]he government may comment on
a defendant’s silence if it occurred prior to the time that he is
arrested and given his Miranda warnings.” Rivera, 944 F.2d
at 1568. Although the defendant raised only a due process
challenge to the use of her prearrest silence, the Eleventh
Circuit found no constitutional infirmity with the use of that
No. 97-4369 Combs v. Coyle 25
inhumane treatment and abuses; our sense of fair play
which dictates “a fair state-individual balance by
requiring the government to leave the individual alone
until good cause is shown for disturbing him and by
requiring the government in its contest with the
individual to shoulder the entire load”; our respect for the
inviolability of the human personality and of the right of
each individual “to a private enclave where he may lead
a private life”; our distrust of self-deprecatory statements;
and our realization that the privilege, while sometimes “a
shelter to the guilty,” is often “a protection to the
innocent.”
Id. at 55 (citations omitted). As the Jenkins Court recognized,
when the government uses a defendant’s prearrest silence for
purposes of impeachment, these policies are largely not
implicated; every defendant is already under some pressure to
testify fully so that the jury does not draw an unfavorable
inference from his silence (or partial silence), and a rule
permitting a defendant to be impeached on the stand with
prior silence does not add substantially to this pressure. If, on
the other hand, prearrest silence may be used as substantive
evidence of guilt regardless of whether or not the defendant
testifies at trial, then the defendant is cast into the very
trilemma outlined by the Murphy Court. Because in the case
of substantive use a defendant cannot avoid the introduction
of his past silence by refusing to testify, the defendant is
under substantial pressure to waive the privilege against self-
incrimination either upon first contact with police or later at
trial in order to explain the prior silence. Perhaps most
importantly, use of a defendant’s prearrest silence as
substantive evidence of guilt substantially impairs the “sense
of fair play” underlying the privilege. Unlike in the case of
impeachment use, the use of a defendant’s prior silence as
substantive evidence of guilt actually lessens the
prosecution’s burden of proving each element of the crime.
We also conclude that the government’s use of a
defendant’s prearrest silence in its case in chief is not a
legitimate governmental practice. Unlike the use of silence

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24 Combs v. Coyle No. 97-4369
[individual’s] position would have understood the situation.’”
(quoting Berkemer, 468 U.S. at 442) (alteration in original)).
Applying that standard to the facts of this case leads to a
conclusion that Combs was in custody when Officer Ventre
asked him for the second time what had happened. Although
Miranda warnings are not required prior to routine
questioning when officers have no details concerning what
happened when they arrive on the scene, see United States v.
Wolak, 923 F.2d 1193, 1196 (6th Cir.), cert. denied, 501 U.S.
1217 (1991), the instant case presents a different situation.
Ventre personally took the shotgun away from Combs; he
testified that he “pointed [his] weapon at the subject on the
ground and ordered him to drop the shotgun” and that he
“ordered him several times to drop the shotgun and [Combs]
started raising the shotgun toward me.” R. at 1042; J.A. at
2670 (Ventre Test.). In addition, ten or fifteen minutes passed
from the time Ventre arrived on the scene until the second
question. In that time, other officers had arrived and Ventre
would surely have had some details about the incident. A
reasonable person in Combs’s situation could have believed
that he was under arrest, and we therefore conclude that
Combs was in custody.
Having decided that the privilege against self-incrimination
applies to a prearrest situation, an analysis such as the one
employed by the Court in Jenkins leads us to the conclusion
that the use of prearrest silence as substantive evidence of
guilt is an impermissible burden upon the exercise of that
privilege. First, permitting the use of silence in the
government’s case in chief would substantially impair the
policies behind the privilege. The Supreme Court in Murphy
v. Waterfront Commission, 378 U.S. 52 (1964), explained:
[The privilege against self-incrimination] reflects many
of our fundamental values and most noble aspirations:
our unwillingness to subject those suspected of crime to
the cruel trilemma of self-accusation, perjury or
contempt; our preference for an accusatorial rather than
an inquisitorial system of criminal justice; our fear that
self-incriminating statements will be elicited by
No. 97-4369 Combs v. Coyle 21
silence in the government’s case in chief. See id. The Fifth
Circuit in Zanabria held, without citing any cases, that the
Fifth Amendment did not protect the defendant’s prearrest
silence because the silence at issue was not induced by the
government. See Zanabria, 74 F.3d at 593. The court
explained: “The fifth amendment protects against compelled
self-incrimination but does not, as Zanabria suggests,
preclude the proper evidentiary use and prosecutorial
comment about every communication or lack thereof by the
defendant which may give rise to an incriminating inference.”
Id. Most recently, the Ninth Circuit joined the Fifth and
Eleventh Circuits in holding that the use of a defendant’s
prearrest silence as substantive evidence of guilt does not
violate the Fifth Amendment. See Oplinger, 150 F.3d at
1067. The Ninth Circuit, following the reasoning of Justice
Stevens’s concurring opinion in Jenkins, explained that “the
privilege against compulsory self-incrimination is irrelevant
to a citizen’s decision to remain silent when he is under no
official compulsion to speak.” Id. at 1066.
We agree with the reasoning expressed in the opinions of
the Seventh, First, and Tenth Circuits, and today we join those
circuits in holding that the use of a defendant’s prearrest
silence as substantive evidence of guilt violates the Fifth
Amendment’s privilege against self-incrimination. Like those
circuits, we believe “that application of the privilege is not
limited to persons in custody or charged with a crime; it may
also be asserted by a suspect who is questioned during the
investigation of a crime.” Coppola, 878 F.2d at 1565. The
Supreme Court has given the privilege against self-
incrimination a broad scope, explaining that “[i]t can be
asserted in any proceeding, civil or criminal, administrative or
judicial, investigatory or adjudicatory; and it protects against
any disclosures that the witness reasonably believes could be
used in a criminal prosecution or could lead to other evidence
that might be so used.” Kastigar v. United States, 406 U.S.
441, 444-45 (1972) (footnote omitted); see also Hoffman v.
United States, 341 U.S. 479, 486 (1951) (“[The privilege]
must be confined to instances where the witness has
reasonable cause to apprehend danger from a direct answer.”);

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22 Combs v. Coyle No. 97-4369
9We stress that we do not believe that the Fifth Amendment comes
into play only when a defendant is taken into custody, for it would
eviscerate the privilege to say that, although a defendant’s post-custody
silence may not be used as substantive evidence against him, a
defendant’s precustody silence may. As Justice Marshall explained in his
Jenkins dissent:
I confess I find M R . J USTICE S TEVENS’ view of the Fifth
Amendment incomprehensible. Apparently, under that view, a
person’s right not to incriminate himself exists only if the
Hoffman, 341 U.S. at 486-87 (“To sustain the privilege, it
need only be evident from the implications of the question, in
the setting in which it is asked, that a responsive answer to the
question or an explanation of why it cannot be answered
might be dangerous because injurious disclosure could
result.”). In a prearrest setting as well as in a post-arrest
setting, it is clear that a potential defendant’s comments could
provide damaging evidence that might be used in a criminal
prosecution; the privilege should thus apply.
Furthermore, we note that even under the reasoning of
Justice Stevens in his Jenkins concurrence, the Fifth
Amendment would apply to Combs’s situation. In Jenkins,
Justice Stevens agreed with the majority that the Fifth
Amendment was inapplicable to the petitioner’s claim, but
Justice Stevens objected to the majority’s reliance on the
waiver theory of Raffel. See Jenkins, 447 U.S. at 241
(Stevens, J., concurring in the judgment). Instead, Justice
Stevens would have ruled that the Fifth Amendment does not
apply to a precustody context: “When a citizen is under no
official compulsion whatever, either to speak or to remain
silent, I see no reason why his voluntary decision to do one or
the other should raise any issue under the Fifth Amendment.
For in determining whether the privilege is applicable, the
question is whether petitioner was in a position to have his
testimony compelled and then asserted his privilege, not
simply whether he was silent.” Id. at 243-44 (footnote
omitted).
Even assuming that the Fifth Amendment is inapplicable to
precustody contexts,9 the privilege would still be applicable
No. 97-4369 Combs v. Coyle 23
government has already attempted to compel him to do so. If no
officials have tried to get the person to speak, he evidently has
a duty to incriminate himself, because the reporting of crime is
a civic duty and the Fifth Amendment is not applicable since the
decision to speak or remain silent is, at that time, “voluntary.”
But the prohibition against compelled self-incrimination is
another way of expressing the right not to incriminate oneself.
After all, the only means of compelling a person to incriminate
himself is to penalize him if he does not. Of course the
voluntary decision to remain silent in the absence of any official
compulsion does not “raise any issue under the Fifth
Amendment,” since there has been no self-incrimination at all.
A voluntary decision to speak also does not implicate the Fifth
Amendment because the self-incrimination was not compelled.
But to impose a duty to report one’s own crime before an official
accusation has been made would itself be to compel self-
incrimination, thus bringing the Fifth Amendment into play.
And, as Griffin v. California makes plain, the Constitution also
prohibits the government from burdening the right not to
incriminate oneself by penalizing silence. In the present case the
violation of the Fifth Amendment occurred not when the
defendant remained silent, but when that silence was later used
against him at his criminal trial.
Jenkins, 447 U.S. at 250 n.4 (Marshall, J., dissenting) (citations omitted).
to Combs, for we agree with the Ohio Supreme Court’s
finding that Combs was in custody at the time he made the
“talk to my lawyer” statement. In Stansbury v. California,
511 U.S. 318 (1994), the Supreme Court explained that “[i]n
determining whether an individual was in custody, a court
must examine all of the circumstances surrounding the
interrogation, but ‘the ultimate inquiry is simply whether
there [was] a ‘formal arrest or restraint on freedom of
movement’ of the degree associated with a formal arrest.’”
Id. at 322 (citing California v. Beheler, 463 U.S. 1121, 1125
(1983)) (alteration in original). Moreover, in the custody
determination, “the only relevant inquiry is how a reasonable
man in the suspect’s position would have understood his
situation.” Id. at 324 (quoting Berkemer v. McCarty, 468
U.S. 420, 442 (1984)); see also United States v. Ozuna, 170
F.3d 654, 658 (6th Cir. 1999) (“Determination of whether an
individual is in custody for purposes of applying the Miranda
doctrine considers ‘how a reasonable man in the

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