48-year-old Dale Pinkelman was the owner of Pinky's Collectibles in
Toledo. While alone in the store, Bey stabbed Pinkelman in the chest,
stole merchandise from the store and took his car.
He was also convicted in a similar
murder of Peter Mihas, owner of The Board Room restaurant in downtown
Toledo. It was the similarity between the two murders that ultimately
led to the death sentence. Both men were stabbed in the chest. Their
pants were removed and their shoes were lined up next to their bodies.
When an informant alerted police of
Bey’s possible involvement with the Mihas murder, police confronted
Bey, who confessed to murdering and robbing Mihas. Finger and palm
prints in the Pinkelman store matched with Bey, who at first denied
ever being in the store.
Later, Bey admitted that he had
purchased a watch from Pinkelman’s store on credit. When officers
asked Bey if he had ever harmed Pinkelman or taken his car, Bey
replied that he did not remember and asked to terminate the
State v. Bryant-Bey, Not Reported, 1995 WL 96783 (Ohio App.
1995). (Direct Appeal)
State v. Bryant-Bey, Not Reported, 2000 WL 770131 (6th Cir.
Three pieces of fried chicken, spaghetti with meat sauce, potato
salad, cherry pie with strawberry ice cream and cola.
"My heart was seeking a sense of fairness and a dose of justice, but
it was not to be," Bryant-Bey said, clutching a rosary. He also made
an extensive statement claiming he was framed "based on false evidence"
by Lucas County law enforcement officials. He read his final words
from a hand-written two page statement.
Ohio Department of Rehabilitation
Inmate#: OSP #A285890
Inmate: GREGORY L BRYANT BEY
County of Conviction: Summit County
Date of Offense: 08-09-92
Date of Admission: 11/24/1993
Institution: Southern Ohio Correctional Facility
Convictions: AGG MURDER WITH SPECIFICATIONS (2 COUNTS)
Killer executed for stabbing Toledo store owner
By Andrew Welsh-Huggins - Akron Beacon Journal
AP Nov 19, 2008
LUCASVILLE: Ohio today executed a man for the 1992
stabbing death of a collectibles store owner in Toledo, the state's
second execution in as many months. Gregory Bryant-Bey, 53, died by
lethal injection at 10:41 a.m. at the Southern Ohio Correctional
Facility in Lucasville.
In a three-minute final statement, Bryant-Bey said
he'd been framed, convicted on the basis of false evidence and had had
poor legal help. ''My brothers and sisters, what can be done to
prevent sisters and brothers from being framed?'' he said.
Bryant-Bey's execution proceeded after the U.S.
Supreme Court on Tuesday denied his request for a 60-day reprieve. He
had wanted more time to present additional information about his case
to Gov. Ted Strickland, who denied clemency Tuesday.
Bryant-Bey was the second inmate put to death in
Ohio since the end of an unofficial national moratorium on executions
that began last year while the U.S. Supreme Court reviewed Kentucky's
lethal injection procedure.
Bryant-Bey was convicted in the Aug. 9, 1992,
robbery and killing of Dale Pinkelman, who owned a sports collectibles
and coin shop.
He also faced a death penalty in the Nov. 2, 1992,
killing of Peter Mihas, owner of The Board Room restaurant in downtown
Toledo. After police arrested Bryant-Bey for Mihas' death,
similarities between the two crimes led to charges in Pinkelman's
slaying. A jury recommended life in prison for Bryant-Bey in the Mihas
The state has now executed 28 inmates since 1999,
when Ohio renewed executions after more than three decades.
No mercy for Toledo killer, parole board says
By Jim Provance - Toledo Blade
Friday, October 24, 2008
COLUMBUS - The Ohio Parole Board yesterday found
"no compelling reason'' to recommend Gov. Ted Strickland show mercy to
Gregory Bryant-Bey in the 1992 robbery and murder of a Toledo merchant.
Bryant-Bey, 53, faces lethal injection on Nov. 19
for killing Dale Pinkelman, 48, whose body was found lying face up, a
single stab wound in his chest, on the floor of his shop, Pinky's
Bryant-Bey was also convicted in the similar murder
almost three months later of Pete Mihas, 61, owner of downtown
Toledo's Board Room restaurant. He received a life sentence for that
murder, but the evidence from that case subsequently helped convict
him of the earlier Pinkelman murder.
The killer's attorneys made little effort during
his clemency hearing to argue that he was not guilty and instead
focused largely on his upbringing. They argued that he'd been
abandoned by his Toledo mother at a young age and was left with an
abusive godmother in New York. They described an incident when, at a
young age, he ran away and tried to walk home to Toledo.
His mother eventually retrieved him from New York,
returned him to Toledo, and left him with an ex-husband, who was not
his father, and his family.
The argument didn't sway the board, which pointed
to the testimony given during the hearing of Bryant-Bey's half-sister,
Ruth Williamson-Bey. She tearfully told the board that she'd asked her
father to bring Bryant-Bey to their home after she learned of his
"In fact, testimony and information presented
indicated that after Bryant-Bey returned to Toledo at the age of 13,
he was able to adjust adequately and conform to societal norms, and
experienced a more stable family life,'' reads the board's report. "The
board also notes that Gregory L. Bryant-Bey does not accept full
responsibility for the crimes of conviction,'' it reads. "The board
finds that the death sentence in this case is fair and just and is not
disproportionate when compared to similar cases.''
Members of the board had noted during the hearing
that Ms. Williamson-Bey had managed to overcome her own substance
abuse problems while her brother had not. "I was disappointed that
they didn't give more weight to the childhood that ended up creating
this,'' said Ohio Assistant Public Defender Rachel Troutman, who
argued the killer's case before the board.
"I was a little puzzled by the belief that he ended
up able to adjust to societal norms,'' Ms. Troutman said. "I think
they misunderstood. Ruth had her share of problems as a result of her
childhood, so if that's the more stable family life they're talking
about, I don't understand how it could be used against him,'' she said.
The seven members of the board who participated in
the hearing were all in agreement against recommending clemency.
Board member Jim Bedra did not participate. As a
former victim advocate in Lucas County, he'd previously had some
involvement with victims in the case. The ninth seat on the board is
Bryant-Bey's attorneys have asked the governor to
commute his death sentence to life in prison without parole. As an
alternative, they'd asked for a 90-day reprieve to further examine
evidence in the case.
Unless Mr. Strickland rejects the board's
recommendations or a court unexpectedly intervenes, Bryant-Bey would
be transported the roughly 250 miles from death row at the Ohio State
Penitentiary near Youngstown to the Southern Ohio Correctional
Facility in Lucasville before his execution date.
"His legal counsel will consider all relevant
aspects of the case and provide the governor with that totality of
information, and then he will do the same,'' Strickland spokesman
Keith Dailey said. "His judgments are made on a case-by-case basis,''
Mr. Dailey noted that the governor also will
consider court decisions in the case, evidence presented to the parole
board on both sides, and letters received by his office.
Toledo killer breathes his last; Second
execution in month
By Alan Johnson - Columbus Dispatch
November 20, 2008
LUCASVILLE, Ohio -- A few minutes after Gregory
Bryant-Bey was executed yesterday, Jay Clark, the son-in-law of one of
his victims, offered his perspective. "This is a difficult day," Clark
said. "There aren't any winners on either side."
What was satisfied, however, was Ohio law, which
was carried out when the double-murderer was pronounced dead at 10:41
a.m. at the Southern Ohio Correctional Facility.
Bryant-Bey, 53, the second Ohioan executed in a
little more than month, paid the ultimate penalty for killing Dale "Pinky"
Pinkelman, 47, owner of a Toledo collectibles store, on Aug. 9, 1992.
He also was convicted for the stabbing death of restaurant owner Pete
Mihas, 61, three months later, but he received a life sentence in that
"We're thankful this event brings closure to the
senseless murders of Dale Pinkelman and Pete Mihas," Clark said,
calling the victims "brave, hardworking family men. ... We'll cherish
the memories we have and the lessons they taught us."
But with his last breaths, Bryant-Bey protested
that he was framed by Lucas County prosecutors, lawyers and law-enforcement
investigators. He said they used "invisible evidence" to trump up a
conviction and obtain the death penalty.
After the lethal-injection shunts were inserted
into both arms, Bryant-Bey, clutching a rosary, entered the Death
Chamber at 10:22 a.m. He smiled and made a two-finger peace sign to
his half brother, the Rev. Elton Williamson; public defender Rachel
Troutman; and his spiritual adviser, Stephen Sparling, all of whom
witnessed the execution from behind glass about 10 feet away.
He repeatedly mouthed a question to his brother and
attorney that was inaudible to media witnesses (which included The
Dispatch). However, his brother later said he was asking, "Where's
Darlene?" in reference to his sister, Darlene Hines, who he expected
was going to witness his death. She did not attend.
Calm and smiling frequently, Bryant-Bey lifted his
head off the table to read his last words, a two-page statement
handwritten on lined paper that was held in front of him by a
corrections officer. "My heart was just seeking a sense of fairness
and a dose of justice, but it was not to be." He concluded: "My heart
calls out to God, 'Come get me on the double.' "
The toxic chemicals began flowing through tubes
into Bryant-Bey's veins about 10:30 a.m. Two minutes later, he blinked
several times and his mouth gaped open. After that, he lay motionless.
His eyes remained partially open as he died.
The curtain to the chamber was drawn closed at
10:40 a.m., prompting deep sobs from Williamson, pastor of the
Increased Ship of Zion Church in Detroit.
Williamson was composed when he spoke later to
reporters. "This was not punishment. This was murder," he said. "The
same thing that he was convicted of, the state of Ohio did to him."
Williamson said his conversations with his younger brother in recent
days focused on "living the life after this one." "I'm sad, but at the
same time I'm proud of my brother. He went bravely."
Williamson said Bryant-Bey told him he was innocent.
"He looked at me right in the eyes and said he didn't do that, and I
Nevertheless, his guilt was easily established in
both cases. Bryant-Bey's attorneys had urged Gov. Ted Strickland to
spare his life, arguing that he was twice abandoned as a child by his
birth mother, was neglected and beaten by his adoptive mother, and
never met his real father.
Strickland turned down the condemned man's clemency
request Tuesday afternoon and the U.S. Supreme Court rejected his
final appeal later that night.
Bryant-Bey's last words (Wednesday,
November 19, 2008 3:02 PM)
How can a framed man be mad at anyone but himself?
Being born again I expect to see God and His kingdom because to die
due to Tom Ross, Keefe Snyder and Dale Roach fabricating evidence to
allow Joe Solomon to knowingly use false evidence to obtain a
conviction and then use that conviction as an aggravating circumstance
to subject me to the death penalty.
Mr. Ron Wingate allows clients to be convicted with
false evidence, he will get the trial court to grant: motion to make
the state's evidence available for independent testing, but, instead
of utilizing an independent expert, he will piggy-back documents from
the prosecution and fail to comply with his own request, cheating
clients out of their Constitutional rights to confrontation and
authentication. He has been admonished but not disciplined, nor will
he because he does not remember the case.
My brothers and sisters wonder what can be done to
protect their sisters and brothers and children and friends from being
framed, lied on and convicted on invisible evidence. We have to pray
that they live a life consistent with the truth and love doing right.
My heart was just seeking a sense of fairness and a
dose of justice but it was not to be. Just like when a witness for the
state testifies "that 2 young men were seen in the victim's automobile"
yet Mr. Wingate "objects" because he failed to investigate the matter.
Having one trial lawyer who fails to investigate, one disbarred and
then to have a post-conviction lawyer disbarred speaks of my
representation and my lack of effective assistance of counsel
especially when at clemency the lack of knowledgeable counsel not only
hampered me it further condemned me. Eight days after a clemency
hearing I was allowed lawyers and the court refused to let them be
effective or useful.
My heart was seeking the hope of light that a soul
calls on in times of trouble and in the earthly battle our God digs us
out of the rubble. My heart was left with Love from above. I touched
my son, my daughters, my nieces, my cousin, my sisters and my brother,
my grandchildren and my new friends and others. My heart calls out to
God, "Come get me on the double."
Killer clutches rosary, says he was framed
By Alan Johnson - Columbus Dispatch
November 19, 2008
LUCASVILLE, Ohio - Double-murderer Gregory Bryant-Bey
of Toledo was executed this morning for a crime he committed 16 years
Bryant-Bey, 53, of Toledo, was lethally injected at
the Southern Ohio Correctional Facility near Lucasville, drawing his
last shallow breath just before 10:41 a.m. He was the second Ohioan
put to death this year and the 28th since the state resumed capital
punishment in 1999.
"My heart was seeking a sense of fairness and a
dose of justice, but it was not to be," Bryant-Bey said, his last
words as he lie on the lethal injection table, clutching a rosary.
He also made an extensive statement claiming he was
framed "based on false evidence" by Lucas County law enforcement
officials. He read his final words from a hand-written two page
Bryant-Bey was convicted for the stabbing deaths of
Dale "Pinky" Pinkelman, 47, and Pete Mihas, 61, during a three-month
span in 1992. He was sentenced to death for Pinkelman's murder, but
got life in prison for the Mihas killing.
His guilt was easily established in both cases.
Still, Bryant-Bey's attorneys had urged Strickland to spare his life,
arguing he was twice abandoned as a child by his birth mother, was
neglected and beaten by his adoptive mother, and never met his real
father. As a child, he had just two emotions, "fear and anger," they
Strickland rejected clemency yesterday afternoon
and the U.S. Supreme Court turned down his appeal late last night.
Pinkelman, a father of six, was found stabbed in
the chest in his Toledo collectibles shop on Aug. 9, 1992. Mihas, a
Greek immigrant who owned the Board Room restaurant in Toledo, was
murdered, also with a knife, in the parking lot of his business about
three months later.
In both cases, Bryant-Bey robbed the businesses,
but did not take the men's personal jewelry. However, he removed the
victim's pants and left their shoes neatly arranged beside the bodies.
A look at death row inmate's timeline
Cleveland Plain Dealer
Timeline of events in the death penalty case of
_Aug. 9, 1992 — Bryant-Bey stabs and kills Dale
Pinkelman, owner of sports collectibles and coin shop. The store's
cash register is cleaned out.
_Nov. 4, 1992 — Bryant-Bey stabs and kills Toledo
restaurant owner Peter Mihas in a downtown parking lot. An empty money
bag is found nearby.
_June 8, 1993 — Jury finds Bryant-Bey guilty in
death of Mihas.
_June 10, 1993 — Bryant-Bey is sentenced to life in
prison for killing Mihas.
_Nov. 11, 1993 — At second trial, Bryant-Bey is
convicted of killing Pinkelman.
_Dec. 22, 1993 — Bryant-Bey is sentenced to death
for Pinkelman's slaying.
_Oct. 22 — Ohio Parole Board unanimously recommends
that governor deny clemency.
_Nov. 18 — Bryant-Bey asks U.S. Supreme Court for
60-day reprieve; Gov. Ted Strickland denies Bryant-Bey clemency.
_Nov. 19 — Bryant-Bey is scheduled to be executed.
On 8/9/92, Gregory L. Bryant-Bey murdered 48-year-old
Dale Pinkelman in Pinky's Collectibles in Toledo. Dale was the owner
of the retail store. Bey stabbed Dale Pinkelman in the chest, stole
merchandise from the store and took his car.
He was also convicted in a similar murder of Peter
Mihas, owner of The Board Room restaurant in downtown Toledo. It was
the similarity between the two murders that ultimately led to the
death sentence. Both men were stabbed in the chest. Their pants were
removed and their shoes were lined up next to their bodies. Bryant-Bey
was convicted first and sentenced to life in prison with the
possibility of parole for the murder of Mr. Mihas. Evidence from that
case later helped to convict him in the Pinkelman murder.
Police officers in Toledo, Ohio, responded to the
scene of an apparent murder/robbery. At the scene, the body of Dale
Pinkelman was lying on the floor of his store, Pinkelman’s
Collectibles, dead from a single stab wound to the chest. Pinkelman’s
body was in a peculiar state — his pants and shoes had been removed,
such that he was lying in his underwear and socks. His shoes were
placed neatly next to his body, but his pants were missing and, in
fact, were never recovered.
The police discovered valuable items on Pinkelman’s
person, including a gold necklace, rings, and two watches, but there
were other items of value for which the police could not account,
including merchandise from the store, cash from the register, and
Pinkelman’s car from the parking lot. The police also discovered a
fingerprint and a palm print on a glass display case approximately
three feet from Pinkelman’s body, for which they could not identify an
owner. Despite the peculiar circumstances of the crime and the
promising discovery of the finger- and palm prints, the police had no
suspect for the apparent murder/robbery and no solid leads.
A few months later, in November 1992, the police
found the body of Peter Mihas on the ground outside his restaurant,
the Boardroom Restaurant, dead from several stab wounds to the chest.
Mihas’s pants had been removed and his shoes were placed neatly next
to his body. His jewelry remained on his person. Toledo Detective
William Gray immediately recognized the similarities between the Mihas
murder/robbery and the unsolved Pinkelman case.
An informant alerted police of Bey’s possible
involvement with the Mihas murder and when the police confronted Bey
with evidence of his guilt, he confessed to murdering and robbing
Mihas. Due to the unusual similarities of the crime scenes, the police
compared Bey’s finger- and palm prints to the unidentified prints
found on the glass display case in Pinkelman’s store. The prints
matched. The police also found Pinkelman’s car less than two blocks
from Bey’s residence.
Armed with this evidence, the police questioned Bey
concerning the Pinkelman murder. Bey initially denied that he knew
Pinkelman and denied having ever been in his store, but later, Bey
admitted that he had purchased a watch from Pinkelman’s store on
credit. Bey also told the police that he had returned to the store and
asked Pinkelman for more time to pay for the watch, but Pinkelman had
refused and demanded payment. When the officers asked Bey if he had
ever harmed Pinkelman or taken his car, Bey replied that he did not
remember and asked to terminate the questioning.
The grand jury returned a four-count indictment,
charging two counts of aggravated murder and two counts of aggravated
robbery. The aggravated-murder charges each contained the same
specification, namely, aggravated murder in the course of an
aggravated robbery, which, if found beyond a reasonable doubt, would
render Bey eligible for the death penalty under Ohio law. Bey moved to
sever the trials, so that the Mihas charges (he had confessed to)
would be tried separately from the Pinkelman charges. The court
granted the motion.
The State prosecuted the Mihas murder first. The
jury convicted Bey of both counts — aggravated murder with the
corresponding specification, and aggravated robbery — and recommended
life imprisonment with eligibility for parole after thirty years. At
the conclusion of the trial on the Pinkelman murder, the jury
convicted Bey on all counts and specifications, and recommended a
sentence of death.
UPDATE: Gregory Bryant-Bey was executed on November
19, 2008. After the execution, Jay Clark, a son-in-law of Pinkelman,
thanked detectives, judges and others involved in Bryant-Bey's
conviction. "This is a difficult day. There aren't any winners on
either side," Clark said.
State v. Bryant-Bey,
Not Reported, 1995 WL 96783 (Ohio App. 1995). (Direct Appeal)
DECISION AND JUDGMENT ENTRY
This case is an appeal from a judgment of the Lucas
County Court of Common Pleas. Appellant, Gregory Bryant-Bey, is
appealing his conviction and sentence for one count of aggravated
murder in violation of R.C. 2903.01(B) and one count of aggravated
robbery in violation of R.C. 2911.01. For the reasons discussed below,
we affirm the decision of the trial court.
The facts of this case are as follows. On the
morning of November 3, 1992, employees of the Boardroom Restaurant
arrived at work and discovered the body of the Boardroom's owner,
Peter Mihas, in a parking lot behind the restaurant. Mihas had
received several knife wounds that were later determined to be the
cause of death.
Toledo police officers, summoned to the scene,
observed that Mihas had received stab wounds to his back, chest and
arms and that a knife was still embedded in his chest. His pants and
shoes had both been removed and were lying next to the body. Also
lying next to the body was an empty bank deposit bag. Upon questioning
restaurant employees, the officers were told that the knife was from
On the evening of November 3, 1992, Bryant-Bey
requested a room at the Riverview Inn, paying the desk clerk with a
$100 bill for the room. Bryant-Bey also inquired about buying the desk
clerk's automobile indicting that he had $1,100 in cash on him.
Further, Bryant-Bey requested that a bellman take $500 in cash to his
wife at a local church. The Riverview Inn desk clerk, noting that
Bryant-Bey had large sums of money on him and knowing that Mihas had
been murdered earlier that morning, contacted a friend of his who was
an officer with the Toledo Police Department.
Subsequently, Detective Tom Ross of the Toledo
Police Department determined that Bryant-Bey was a possible suspect in
the murder of Mihas. At approximately noon on November 4, 1992,
Officer Ross along with other Toledo police officers went to Bryant-Bey's
hotel room at the Riverview Inn to execute two arrest warrants for
misdemeanor theft. The police officers went to the door of Bryant-Bey's
hotel room, knocked on the door and announced they were police. No
answer was received but the officers heard movement within the hotel
room. The officers instructed the hotel maintenance man to use a pass
key to open the door. The officers then entered the room and informed
Bryant-Bey he was under arrest. Bryant-Bey requested that the police
officers gather up several items of clothing, including a pair of
black pants, which were lying on the floor of the hotel room and take
them to the police station.
Bryant-Bey was taken to the interrogation room of
the police station while the black pants were deposited in a separate
homicide investigation room. He was immediately searched while in the
interrogation room and $1,160 in cash was found in one of his socks.
Officers counted the money in front of Bryant-Bey, filled out an
inventory form and sealed the money in an envelope. Bryant-Bey then
waited in the interrogation room approximately four hours prior to
being interrogated by Officer Ross.
While Bryant-Bey was waiting in the interrogation
room, police officers inspected the black pants that had been placed
in the homicide investigation room. Police officers noted a yellow
paint stain on the black pants that was similar to a paint stain that
was found on Mihas' pants. A chemical analysis was per formed on the
paint stains which indicated that the stains from both Mihas and
Bryant-Bey's pants were similar.
At approximately 5:30 p.m., Officer Ross began his
interrogation of Bryant-Bey. Officer Ross first read Bryant-Bey his
Miranda rights. Bryant-Bey stated he understood, wished to waive his
rights and signed a waiver form. Bryant-Bey initially told Officer
Ross that he had nothing to do with Mihas' murder and was in a
different part of the city on the night in question. Further, he
stated to Officer Ross that the money found in his sock and the money
with which he paid for the room at the Riverview Inn was won through
Officer Ross next asked Bryant-Bey to explain how
the paint found on his pants was the same as the paint found on Mihas'
pants. Bryant-Bey stated he could not explain how the paint on both
his pants and Mihas' pants was the same. Officer Ross then suggested
to Bryant-Bey that perhaps Mihas may have left his restaurant with the
knife in his hand and that “things might have gotten a little out of
hand back there behind [the restaurant].”
At this point, Bryant-Bey changed his statement and
told Officer Ross that he was present at the time of Mihas' death. He
stated that while he was urinating behind the restaurant, Mihas
confronted and threatened him. Bryant-Bey stated that Mihas had a
knife, that the two men struggled and that Mihas accidentally fell on
Somewhere between 8:00 and 8:30 p.m., the
interrogation was stopped for a thirty-minute to one-hour break.
During the break, police officers provided Bryant-Bey with dinner.
After the break, police officers showed Bryant-Bey the waiver form
concerning his Miranda rights that he had previously signed. Police
officers asked Bryant-Bey if he understood his Miranda rights and he
replied that he did. During the second half of the interrogation,
Bryant-Bey explained that Mihas may have received the knife wounds to
both his chest and back by rolling over after falling on his knife. He
also admitted going through Mihas' wallet before he left the scene;
however, he could not explain how Mihas' pants were removed. The
interrogation was completed at approximately 10:00 p.m.
Subsequently, Bryant-Bey was indicted by the grand
jury on one count of aggravated murder and one count of aggravated
robbery. Before trial, Bryant-Bey filed a motion to suppress the
evidence obtained when he was arrested and to suppress the statements
he made during the interrogation. A hearing was held on the motion to
suppress which the trial court denied. The case proceeded to trial
with the jury returning guilty verdicts on both counts. Bryant-Bey was
subsequently sentenced to a term of imprisonment.
It is from such judgment that Bryant-Bey raises the
following eight assignments of error:
“1. THE TRIAL COURT COMMITTED SUBSTANTIAL
PREJUDICIAL AND REVERSIBLE ERROR IN FAILING TO SUPPRESS EVIDENCE
SEIZED BY THE POLICE AS A RESULT OF THEIR ILLEGAL ENTRY INTO
APPELLANT'S HOTEL ROOM IN VIOLATION OF APPELLANT'S STATUTORY AND
“2. THE TRIAL COURT COMMITTED SUBSTANTIAL,
PREJUDICIAL AND REVERSIBLE ERROR IN FAILING TO SUPPRESS EVIDENCE
SEIZED BY THE POLICE AT APPELLANT'S HOTEL ROOM IN VIOLATION OF
APPELLANT'S CONSTITUTIONAL RIGHTS.
“3. THE TRIAL COURT COMMITTED SUBSTANTIAL,
PREJUDICIAL AND REVERSIBLE ERROR IN FAILING TO SUPPRESS EVIDENCE
SEIZED BY THE POLICE AT THE POLICE STATION IN VIOLATION OF APPELLANT'S
“4. THE TRIAL COURT COMMITTED SUBSTANTIAL,
PREJUDICIAL AND REVERSIBLE ERROR IN FAILING TO SUPPRESS APPELLANT'S
STATEMENTS TO THE POLICE AT THE POLICE STATION IN THAT THE STATEMENTS
WERE INVOLUNTARILY MADE IN VIOLATION OF APPELLANT'S CONSTITUTIONAL
“5. THE TRIAL COURT COMMITTED SUBSTANTIAL,
PREJUDICIAL AND REVERSIBLE ERROR IN FAILING TO SUPPRESS APPELLANT'S
STATEMENT TO THE POLICE AFTER THE BREAK IN THAT APPELLANT DID NOT
WAIVE HIS MIRANDA RIGHTS IN VIOLATION OF APPELLANT'S CONSTITUTIONAL
“6. THE TRIAL COURT COMMITTED SUBSTANTIAL,
PREJUDICIAL AND REVERSIBLE ERROR IN ADMITTING GRUESOME PHOTOGRAPHS OF
“7. APPELLEE'S REMARKS DURING ITS REBUTTAL CLOSING
ARGUMENT CONSTITUTES PREJUDICIAL CONDUCT SUFFICIENT TO REQUIRE
REVERSAL OF APPELLANT'S CONVICTIONS.
“8. APPELLANT WAS DENIED HIS SIXTH AMENDMENT RIGHT
TO EFFECTIVE ASSISTANCE OF COUNSEL IF IT IS HELD THAT APPELLANT'S
TRIAL COUNSEL WAIVED THE FIRST ASSIGNMENT OF ERROR.”
* * *
As his fourth assignment of error, Bryant-Bey
argues that the trial court erred in failing to suppress the statement
he gave during the first half of his interrogation. He argues that his
statement was involuntary and therefore in violation of his Fifth
Amendment privilege against self-incrimination.
It is well-settled law that a totality of the
circumstances test is used in determining whether a statement is
voluntary. State v. Brewer (1990), 48 Ohio St.3d 50, 58; Oregon v.
Bradshaw (1983), 462 U.S. 1039, 1045. Under such test a court is to
consider “the age, mentality, and prior criminal experience of the
accused; the length, intensity, and frequency of interrogation; the
existence of physical deprivation or mistreatment, and the existence
of threat or inducement.” Brewer at 58.
First, Bryant-Bey argues that his statement was
involuntary since it was given because of deceptive police practices.
He argues that Detective Ross knowingly made a false statement
concerning the origin of the knife used to stab Mihas in order to
elicit his statement. Bryant-Bey further argues that when Detective
Ross suggested a possible scenario about how the crime was perpetrated
it created an atmosphere of coercion or duress such as to render his
Detective Ross suggested to Bryant-Bey that Mihas
may have come out of his restaurant carrying a knife resulting in an
altercation between the two men. It was immediately after Detective
Ross suggested this scenario that Bryant Bey admitted that there had
been a confrontation between himself and Mihas. Bryant-Bey explained
that Mihas, carrying a knife, had observed him urinating behind the
restaurant and threatened him. Bryant-Bey further stated that during
the ensuing scuffle, Mihas fell on his knife.
Detective Ross did not make a knowingly false
statement concerning the origin of the knife. Detective Ross at the
time of the interrogation believed that Mihas had been stabbed by a
knife taken from his restaurant. It was not until after the
interrogation that police learned that the knife had not come from the
Boardroom restaurant. Further, we fail to see how Detective Ross's
suggestion of a possible explanation of the crime rendered Bryant
Bey's subsequent statement involuntary. Therefore, we do not find that
Detective Ross's suggested scenario constitutes coercion, duress or a
deceptive police practice.
Second, Bryant-Bey argues that police should have
inferred from his moment of silence that he wished to end the
interrogation. We do not find that a moment of silence, without more,
suggests a defendant's unwillingness to continue with an interrogation.
As the Ohio Supreme Court stated in State v. House (1978), 54 Ohio St.2d
“When there is no specific request to terminate
questioning by the defendant during an in custody interrogation which
is commenced only after the defendant has been informed of his Miranda
rights and executed a written waiver thereof, the defendant's right to
cut off questioning is scrupulously honored and his incriminatory
statement is not the product of an unlawful in custody interview
merely because he remained silent to certain questions during the
interview.” (Emphasis added.)
Therefore, we find Bryant-Bey did not indicate that
he wished to end the interrogation.
Third, Bryant-Bey argues that the length of the
interrogation rendered his statement involuntary. He also argues the
fact that he was not allowed to leave the interrogation room for nine
hours and was not allowed any contact with anyone other than police
during the interrogation tainted the voluntariness of his statement.
Bryant-Bey also argues that he was “awarded” with his dinner only
after he had admitted to meeting with Mihas.
Upon review of the record, we find Bryant-Bey was
given his Miranda rights, understood those rights and chose to waive
them before making a statement. He was then questioned for
approximately two and one-half hours after waiting for five hours in
the interrogation room. Further, the record discloses that Bryant-Bey
never asked to speak with anyone else during the interrogation nor did
he ever ask to leave the interrogation room. Further, there is no
evidence that he was given a meal only after he admitted to an
encounter with Mihas.
We do not find there is any evidence that police
practiced any type of coercive or threatening behavior nor that police
subjected Bryant-Bey to the length or manner of interrogation which
would render his statement involuntary. Therefore, the trial court did
not err in denying the motion to suppress the statement made to
Detective Ross. Accordingly, the fourth assignment of error is found
* * *
As his seventh assignment of error, Bryant Bey
argues that the prosecutor's remarks made during closing arguments
constituted prejudicial error. Specifically, Bryant Bey argues that
comments about defense counsel, comments about matters not in evidence
and comments concerning the prosecutor's own personal opinion of
Bryant Bey's guilt were improper.
In State v. Smith (1984), 14 Ohio St.3d 13, 14, the
Ohio Supreme Court held that “[t]he test regarding prosecutorial
misconduct in closing arguments is whether the remarks were improper
and, if so, whether they prejudicially affected substantial rights of
the defendant.” Further, in order to sustain a conviction, “it must be
clear beyond a reasonable doubt that, absent the prosecutor's comment,
the jury would have found the defendant guilty.” Id. at 15. In State
v. Spinks (1992), 79 Ohio App.3d 720, 731, the court listed several
factors to be considered regarding prosecutorial misconduct as follows:
“(1) the nature of the remarks, (2) whether an objection was made by
counsel, (3) whether corrective instructions were given by the court,
and (4) the strength of the evidence against the defendant.”
The prosecutor commented several times concerning
defense counsel's theory of the case as follows: “[defense counsel]
will be doing cartwheels out of this courtroom if you buy any of this
stuff,” “this ludicrous story of self-defense or accident,” “[defense
counsel] is trying to sell you this bill of goods that it was an
accident” and “[defense counsel] had very little to work with in
preparation of a defense.” Assuming prosecutorial misconduct, we find
beyond a reasonable doubt that even absent these statements the jury
would have found Bryant-Bey guilty.
Further, the prosecutor stated that Mihas was “a
very good, local businessman who works hard for his living.” However,
the trial court sustained the ensuing objection and immediately
admonished the jury that it must “decide this case not based upon
sympathy, prejudice, or bias.” We find these instructions, immediately
following the prosecutor's sole reference to Mihas' character rendered
the remark harmless beyond a reasonable doubt.
Finally, the prosecution twice remarked “We know
it's this defendant.” However, this remark referred to the fact that
Bryant-Bey was present when Mihas was killed, as evidenced by Bryant-Bey's
statement to the police. The prosecutor went on to state that the
issue for the jury to decide was whether Mihas' death was an accident
(defense counsel's theory of the case) or was murder. When taken in
context, it is clear that the prosecutor was not expressing his
personal belief as to Bryant-Bey's guilt. Accordingly, we find the
seventh assignment of error not well taken. As his eighth assignment
of error, Bryant-Bey argues that he was denied the effective
assistance of counsel. Specifically, Bryant-Bey argues that his trial
counsel was ineffective for failing to argue, at the motion to
suppress, that police initially entered his hotel room in violation of
R.C. 2935.12(A), the “knock and announce” rule. It was under the first
assignment of error that Bryant-Bey challenged the legality of police
officers' entry into his hotel room.
In Strickland v. Washington (1984), 466 U.S. 668,
the United States Supreme Court held that to establish a claim of
ineffective assistance of counsel in violation of the Sixth Amendment,
a two-part test must be satisfied. First, it must be shown that
“counsel's representation fell below an objective standard of
reasonableness.” Id. at 688. Second, it must be shown that counsel's
deficient performance prejudiced the defendant, i.e., that “there is a
reasonable probability that, but for counsel's unprofessional errors,
the result of the proceeding would have been different.” Id. at 691.
The Ohio Supreme Court has repeatedly followed the two-part test of
Strickland in determining the issue of ineffective assistance of
counsel. See, e.g., State v. Cooperrider (1983), 4 Ohio St.3d 226,
228; State v. Bradley (1989), 42 Ohio St.3d 136, paragraph two of the
As we discussed under the first assignment of
error, the record shows that police officers were excused from
compliance with R.C. 2935.12(A) do to exigent circumstances. Therefore,
we find that trial counsel's performance did not fall below an
objective standard of reasonableness nor did Bryant-Bey suffer any
prejudice as a result of trial counsel's decision not to pursue this
issue. Accordingly, the eighth assignment of error is found not well-taken.
On consideration whereof, the court finds that the
defendant was not prejudiced or prevented from having a fair trial,
and the judgment of the Lucas County Court of Common Pleas is affirmed.
This cause is remanded to said court for execution of sentence. It is
ordered that appellant pay the court costs of this appeal.
HANDWORK, GLASSER and RESNICK, JJ., concur.
State v. Bryant-Bey, Not Reported, 2000
WL 770131 (6th Cir. 2000) (PCR)
This is an appeal from a judgment of the Lucas
County Court of Common Pleas that denied appellant's petition for
postconviction relief. For the reasons that follow, this court affirms
the judgment of the trial court.
Appellant sets forth the following assignments of
“FIRST ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED IN DENYING MR. BRYANT-BEY'S MOTION TO VACATE OR
SET ASIDE SENTENCE.
“SECOND ASSIGNMENT OF ERROR
“THE TRIAL COURT ERRED WHEN IT DETERMINED THAT PETITIONER FAILED TO
PRODUCE EVIDENCE, WHICH IF TRUE, WOULD ENTITLE HIM TO RELIEF.”
The facts that are relevant to the issues raised on
appeal are as follows. On November 19, 1993, a jury found appellant
guilty of aggravated robbery and aggravated murder. On December 22,
1993, the trial court sentenced appellant to death for the aggravated
murder conviction and fifteen to twenty-five years for the aggravated
robbery conviction. Appellant appealed his convictions and this court
affirmed the trial court in all respects. State v. Bey (Sept. 19,
1997), Lucas App. No. L-94-003, unreported. The Supreme Court of Ohio
upheld appellant's convictions and sentences in State v. Bey (1999),
85 Ohio St.3d 487, 709 N.E.2d 484.
On September 20, 1996, appellant filed a petition
for postconviction relief. In his petition, appellant asserted two
arguments based on a claim of ineffective assistance of trial counsel
and asked the court for an evidentiary hearing. Appellant first argued
that trial counsel were ineffective because they were hindered by the
inadequate analysis submitted by the psychologist who testified at
mitigation. In his second argument, appellant asserted the more
general claim that counsel were ineffective because they failed to
recognize and cure deficiencies during the mitigation phase of the
trial. Appellant asserted that the evidence of counsel's
ineffectiveness did not become apparent until a second psychologist
hired by appellant's new counsel for purposes of postconviction relief
provided a different diagnosis of appellant.
On October 31, 1997, the trial court denied
appellant's petition. The trial court found that the claims raised by
appellant could have been raised on direct appeal and are therefore
barred by res judicata. The trial court also found that appellant had
failed to provide the court with evidence which, if true, would
entitle him to relief. After finding that appellant had not presented
sufficient grounds for relief, the trial court denied appellant's
request for a hearing.
In support of his first assignment of error,
appellant asserts that the trial court erred by ignoring the evidence
and denying his request for a hearing. Appellant further argues that
the trial court erred by finding that his claims could have been
raised on direct appeal and are therefore barred by res judicata.
Pursuant to R.C. 2953.21, a criminal defendant
seeking to challenge his conviction through a petition for
postconviction relief is not automatically entitled to a hearing.
State v. Calhoun (1999) 86 Ohio St.3d 279, 282, 714 N.E.2d 905. Before
granting an evidentiary hearing on the petition, the trial court shall
determine whether there are substantive grounds for relief (R.C.
2953.21[C] ), i.e., whether there are grounds to believe that “there
was such a denial or infringement of the person's rights as to render
the judgment void or voidable under the Ohio Constitution or the
Constitution of the United States.” R.C. 2953.21(A)(1). The Supreme
Court of Ohio has held that, in the interest of judicial economy, it
is not unreasonable to require the defendant to show in his petition
for postconviction relief that such errors resulted in prejudice
before a hearing is scheduled. See State v. Jackson (1980), 64 Ohio St.2d
107, 112, 413 N.E.2d 819.
The trial court in this case reviewed the evidence
submitted with appellant's petition, which consisted of an affidavit
and an evaluation prepared by a newly-retained psychologist, and found
that the issue of ineffective assistance of counsel could have been
resolved on direct appeal. The Supreme Court of Ohio has held that res
judicata may bar a petition for postconviction relief where the
defendant raises a claim of ineffective assistance of counsel and
where the defendant was represented by a different attorney at the
appellate level. State v. Cole (1982), 2 Ohio St.3d 112, 443 N.E.2d
169. The record in this case reveals that appellant was represented by
different counsel on appeal.
Upon consideration of the record, this court finds
that the issues of the competence of Dr. McIntyre, the expert witness
at the mitigation phase of the trial, as well as trial counsel's
claimed ineffectiveness in offering her testimony, could have been
raised on appeal without benefit of the second psychologist's
evaluation and affidavit. A postconviction petition does not show
ineffective assistance merely because it presents a new expert opinion
that is different from that presented at trial. State v. Jamison (Nov.
10, 1992), Hamilton App. No. C-910736, unreported. Although Dr. Ort,
the psychologist retained for the postconviction evaluation, presented
her own assessment of appellant, she did not assert that the original
evaluation was erroneous. Dr. Ort's evaluation, while highly detailed,
did not in any way criticize the original evaluation or cite possible
deficiencies or flaws in Dr. McIntyre's report. Based on the foregoing,
we find that the evidence submitted by appellant in support of
postconviction relief was no more than cumulative or alternative to
the evidence presented at trial and that appellant's claim could have
been raised on direct appeal. We therefore find that the trial court
did not err by finding that appellant's petition was barred by res
judicata and denying the request for a hearing. Accordingly,
appellant's first assignment of error is not well-taken.
Based on our finding that appellant's claims on
postconviction relief are barred by res judicata, this court further
finds that appellant's specific arguments as to ineffective assistance
of counsel under his second assignment of error are moot.
On consideration whereof, this court finds that
appellant was not prejudiced and the judgment of the Lucas County
Court of Common Pleas is affirmed. Costs of this appeal are assessed