Dawn McCreery, 20, and Wendy Offredo, 21, were University of Akron
sorority sisters who were leaving their jobs as waitresses when 17-year-old
Clint Dickens threw a chunk of concrete off an I-77 overpass,
striking the windshield of the car that Ms. Offredo was driving.
Cooey, who was 19 and on leave from
the U.S. Army, was hanging out with a longtime friend, Kenny Horonetz,
and Dickens. The three got into a car and offered the two women help.
The five drove to a shopping mall and Ms. Offredo used a pay phone to
call her mother.
"I'm game if you're game," Cooey said
as Dickens suggested they rob the two women. Cooey pulled a knife on the
women when they realized they were not being driven back to their car.
Horonetz demanded to be let out of the car after Cooey told him to tie
Ms. McCreery's hands.
Driving to a wooded area in nearby
Norton, Dickens and Cooey both raped the two girls. Dickens then
suggested the women should be killed because they knew his name, records
show. Dickens grabbed Ms. Offredo in a chokehold, and Cooey used a
shoelace to strangle her as Dickens strangled Ms. McCreery with his
other shoelace. Cooey beat both women with a club. Dickens was sentenced
to life in prison for the crimes, in which both girls suffered through
more than three hours of torture.
Cooey v. Coyle, 289 F.3d 882 (6th Cir. 2002) (Habeas)
State v. Cooey, Not Reported in N.E.2d, 1987 WL 31921 (Ohio App.
1987). (Direct Appeal)
A T-bone steak with A1 sauce, french fries and onion rings, four eggs
over easy, hash browns, buttered toast, bear claw pastries, a pint of
Rocky Road ice cream and Mountain Dew.
''You [expletive] have not paid attention to anything I've had to say
for the past 22 years. Why would you pay attention to anything I have to
Ohio Department of
Rehabilitation and Correction
Inmate#: OSP #A194-16
Inmate: Richard Wade Cooey II
County of Conviction: Summit County
Date of Offense: September 1, 1986
Date of Admission: 12/10/86
Institution: Southern Ohio Correctional Facility
Convictions: AGG MURDER WITH SPECIFICATIONS (2 COUNTS), KIDNAPPING
(2 COUNTS), RAPE (4 COUNTS), AGG ROBBERY (2 COUNTS), FELONIOUS
Cooey executed by lethal injection
By Phil Trexler -
Akron Beacon Journal
Oct 14, 2008
Richard Wade Cooey was executed at 10:28 this morning
for the murders of two University of Akron students 22 years ago.
His final statement was: ''You [expletive] have not
paid attention to anything I've had to say for the past 22 years. Why
would you pay attention to anything I have to say now?''
Cooey paced for much of the night, sleeping for less
than 90 minutes and turning down breakfast as his execution drew near.
Cooey's attorneys arrived at the prison this morning, but a spokeswoman
for the Ohio Public Defender's Office last night said that he appeared
out of appeal options.
Cooey, 41, formerly of Akron, was sentenced to die in
1986 for the murders of Wendy Offredo and Dawn McCreery, two UA juniors.
He was within 12 hours of being executed in 2003 before a judge granted
him a stay.
Prison spokeswoman Andrea Carson told reporters this
morning that Cooey was quiet overnight inside the death house at the
Southern Ohio Correctional Facility near Lucasville.
He finished his last meal around midnight, appeared
sleepless, and paced his cell. Around 4:06 a.m., he fell asleep only to
awaken at 5:20 a.m. He showered and is visiting now with his attorneys.
About 9:50 a.m., Warden Phillip Kerns approached
Cooey and read the state's death warrant. Cooey was then fitted with
shunts in each arm that were used to transfer the lethal drugs into his
After long battle, killer executed
First lethal injection in 1 1/2 years seems to go
By Alan Johnson -
October 15, 2008
LUCASVILLE, Ohio -- The anger and uncertainty were
over for Richard Wade Cooey III at 10:28 a.m. yesterday as he lay
motionless on the lethal-injection table at the Southern Ohio
Correctional Facility. Cooey's long fight to avoid execution for
murdering Wendy Offredo, 21, and Dawn McCreery, 20, was punctuated by
last words of defiance. But as he lay dying, the three execution drugs
flowing into his veins, the 41-year-old Summit County man was calm and
quiet, showing no outward signs of pain.
Cooey's death -- the first in Ohio in 18 months and
the 27th since capital punishment resumed in 1999 -- will ease but not
erase the pain for the families of Offredo and McCreery. Offredo's
family chose not to attend the execution, but Mary Ann Hackenberg and
Robert McCreery Sr., the victim's parents, were witnesses, along with
her brother and three cousins.
Likewise, the execution did not banish the suffering
of Katherine Miracle, Melissa Wilkinson and Tammy Brown, three of the
victims' Alpha Delta Pi sorority sisters in the mid-1980s at the
University of Akron. Miracle, Wilkinson and Brown pulled up their sport-utility
vehicle to the Lucasville prison early yesterday, parking a few hundred
yards from a circle of capital-punishment protesters. They opened the
tailgate and set up an impromptu display that included a composite
sorority photo with McCreery's picture; Offredo graduated the previous
year. For Miracle, the past two decades have been scarred by thoughts of
the abduction, rape and murder of her friends in a deserted area of
Norton, in northeastern Ohio, on Sept. 1, 1986. Miracle was supposed to
ride along with Offredo and McCreery to the Harbor Inn, an Akron-area
bar. But Miracle and McCreery argued, and Miracle drove separately from
her "little sister" in the sorority.
Offredo and McCreery never made it to the bar; Cooey
and two accomplices dropped a 35-pound chunk of concrete onto their car
from an I-77 overpass. "I was supposed to guide and protect her,"
Miracle said. "There were a lot of times over the years that I didn't
feel I did that. I would wake up and think, 'Why am I here and she's not?'
At the other end of the prison parking lot, Sister
Alice Gerdeman, president of Ohioans to Stop Executions, prayed with
about 30 people. "The crime that was committed was horrendous," she said
in an interview. "I pray for the victims' families and for Richard Cooey
and his family. "There is no happiness here, just deep, deep pain."
Inside the prison, Cooey was being prepped in his
cell by medical technicians who inserted intravenous needles into both
arms. In a flurry of lawsuits during the past few months, Cooey's
attorneys alleged that finding a suitable vein could be a problem
because of his obesity; he weighed 275 pounds and was 5 feet 7 inches
tall. The prison technician, as observed by witnesses on a monitor, had
trouble inserting the first needle, prompting Cooey to call out loudly,
"I want to talk to Greg Meyers!" Meyers, one of Cooey's public defender
attorneys, was a witness but was not allowed to respond to his client.
Meyers told The Dispatch later that Cooey cried out
because the first needle missed the vein and had to be reinserted. "He
was afraid he was going to have a botched execution like the others,"
Meyers said, referring to two problematic lethal injections in Ohio
since 2006. However, IV lines in both arms eventually were established.
Cooey spat out his last words: "You (expletive)
haven't paid any attention to anything I've said in the last 22 years,
why would you pay any attention to anything I say now?"
On his last night, Cooey had a big meal: a T-bone
steak with A1 sauce, french fries and onion rings, four eggs over easy,
hash browns, buttered toast, bear claw pastries, a pint of Rocky Road
ice cream and Mountain Dew. The prison waived its nonsmoking policy,
allowing him to smoke in his Death House cell.
Richard Wade Cooey II executed for McCreery,
By Michal K. McIntyre -
Cleveland Plain Dealer
October 15, 2008
Richard Wade Cooey II died peacefully Tuesday with a
lethal combination of drugs administered through two needles inserted
gently into veins in each arm. He was executed by the state of Ohio for
the rape and murders - by bludgeoning and strangulation - of two college
students who were not afforded such comfort in their deaths.
"It's done," said Mary Ann Hackenberg, mother of one
of the victims, Dawn McCreery, who said she could sense her daughter's
presence in the death chamber. "I know she was there," she said. "I felt
Cooey was sentenced to death in 1986 for the rape and
murder that year of the 20-year-old McCreery and her sorority sister,
Wendy Offredo, 21. He was hours away from execution when he won a
reprieve in 2003. Tuesday, his appeals ran out when the U.S. Supreme
Court denied his last-ditch effort.
He remained defiant even in his final statement,
uttering an obscenity when Warden Phillip Collins held a microphone
above his lips, before a combination of three drugs flowed through the
tubes over the course of nearly 10 minutes, ending his life. "You . . .
haven't paid any attention to what I've had to say over the past 22Â½
years, why are you going to pay attention to what I have to say now?" he
said, not looking at any of the six witnesses from the McCreery family
or his three lawyers and a spiritual adviser, who were witnesses.
At 10:06 a.m., a monitor in the witness viewing room
flickered to life, showing Cooey lying on a gurney in a prep room
adjacent to the death chamber, his feet crossed. Technicians inserted
ports into veins in each arm without difficulty, despite his legal
claims that his veins would be too difficult to access partly because of
Mary Ann Hackenberg of Rocky River, Dawn McCreery's
mother and one of six witnesses from the McCreery family, said, "They
got it," when the needle was inserted. Cooey shouted for his lawyer,
Greg Meyers, twice. Meyers, who was in the witness room along with two
other lawyers and Cooey's spiritual adviser, did not move.
At 10:15 a.m., with ports inserted and his arms
strapped to boards, Cooey kicked his legs, got off the gurney, and
walked to the death chamber, where he climbed onto another gurney. Six
guards in white strapped him down with four black straps. Tubing, which
extended from the wall in the adjacent room, was connected to the ports.
At 10:19, Cooey made his final statement and drummed
his fingers -- pinky to index finger -- on the board supporting his left
arm. At 10:21, he exhaled with a faint noise. Warden Phillip Kerns of
the Southern Ohio Correctional Facility shook Cooey's shoulder. He did
not respond. By 10:28, he was dead. Sodium pentothal induced deep sleep,
pancuronium bromide stopped his breathing, and potassium chloride
stopped his heart.
Hackenberg threw back her head and exhaled as a
curtain was drawn across the viewing window. She hugged her son, Rob
McCreery, and held the hand of her ex-husband, Robert McCreery Sr. A
black hearse waited outside the death house to take Cooey's body.
Dana Cole, who identified himself as Cooey's lawyer
and friend and to whom Cooey's cremated remains will be given, said
Cooey was an immature 19-year-old influenced by drugs and alcohol when
he committed his crime. "What we witness here today was a killing that
was planned and funded for more than 22 years," he said. "The man killed
was not the same man who committed the crimes."
Rob McCreery, Dawn's brother, said Cooey is exactly
the same, proven by his final words. "Just being spiteful to the very
end," said Rob McCreery. "It just shows how much this was warranted and
After the execution, the family talked of their
relief that Cooey had finally been brought to justice and the
peacefulness of his passing despite his claims that lethal injection was
"cruel and unusual." "The thing that's going to now give us the greatest
comfort is knowing that he now has to be accountable to a power greater
than himself and now he's got to reckon with that," said Dawn McCreery's
cousin, Kathy Miska, one of the witnesses of the execution.
Hackenberg was at once relieved and still angry. "It
was too easy. It's as much justice as we're going to get, as much
closure as we'll get, but it was just too easy," she said. "He didn't
get a free pass," said her husband, John Hackenberg. Rob McCreery said
he had hoped for the execution for so long -- he was 17 when his big
sister was killed -- that he's not sure where to turn his attention now.
"But I can tell you it was a nicer day coming out of there than it was
going in," he said.
Cooey is to first Ohio inmate to be executed since
May 2007, the 27th since 1999.
Cooey was 19 and home on leave from the Army when, in
1986, the Akron native and an accomplice, 17-year-old Clint Dickens,
raped and murdered Offredo and McCreery. Dickens threw a chunk of
concrete from an overpass onto Offredo's car, disabling it. They then
drove down to the highway and picked up the women, offering to get them
help. Instead, they drove them to a secluded field in Norton where they
raped them, beat them with a wooden club and strangled them with
Dickens was sentenced to life in prison for the
crimes, in which both girls suffered through more than three hours of
what Summit County Prosecutor Sherri Bevan Walsh called "fear and
torture and agony." Because he was a juvenile when he committed the
crime, he wasn't eligible for the death penalty.
The night before his execution, as Cooey sat on his
bed or paced and slept for slightly more than an hour, Dawn McCreery's
family gathered in her brother Rob's hotel room, sharing stories,
watching the Browns' unexpected victory and drinking cold beers. Summit
County Prosecutor Sheri Bevan Walsh joined them.
Rob McCreery opened a gift bag from a former Alpha
Delta Pi sorority sister of Dawn and Wendy. It was a shirt with the
sorority's Greek lettering, one that Dawn had actually worn. The card
said it was for Rob McCreery's 5-year-old daughter. The morning sky,
still dark, was full of stars as a nearly full moon loomed over the
hills of Lucasville. At breakfast in the Holiday Inn Express, someone
noted that it was a harvest moon. Perfect for execution day. "You reap
what you sow," said Nicole McCreery, Rob's wife.
Ohio executes man who argued he was too fat to
By Matt Reed
LUCASVILLE, Ohio (AP) — Ohio executed a 5-foot-7,
267-pound double murderer Tuesday who argued his obesity made death by
lethal injection inhumane. Richard Cooey, 41, had argued in numerous
legal challenges that his weight problem would make it difficult for
prison staff to find suitable veins to deliver the deadly chemicals, a
problem that delayed previous executions in the state.
There were no such difficulties, said Larry Greene, a
spokesman for the Southern Ohio Correctional Facility. During
preparations, though, Cooey shouted for one of his attorneys as prison
staff tried to insert a shunt in his left arm. He was worried the staff
would botch the execution, said Greg Meyers, an attorney with the Ohio
Public Defender's Office.
Cooey, who killed two University of Akron students in
1986, walked into the death chamber wearing gray pants and a black
short-sleeve shirt and was strapped onto the gurney. "For what? You (expletive)
haven't paid any attention to anything I've said in the last 22 1/2
years, why would anyone pay any attention to anything I've had to say
now," Cooey said looking at the ceiling. He made no other comment.
Cooey tapped the fingers of his left hand several
times before he died and his face took on a purple shade.
Six family members of one of his victims quietly
watched the execution. Mary Ann Hackenberg, the mother of Dawn McCreery,
who was 20 when she was killed, looked to the ceiling and let out a sigh
when Cooey's death was announced at 10:28 a.m. Summit County Prosecutor
Sherri Bevan Walsh said the family was disappointed that Cooey was
vulgar and hateful to the end. "He still would not apologize and still
would not accept responsibility for what he did," she said.
Three of Cooey's lawyers served as his witnesses. "The
government has no conscience, only policy. Today the policy was state-sanctioned
murder of Richard Cooey," said one of the lawyers, Eric Allen.
Cooey was the first inmate executed in Ohio in more
than a year, and the state's first since the end of the unofficial
moratorium on executions that began last year while the U.S. Supreme
Court reviewed Kentucky's lethal injection procedure.
Cooey lost a final appeal earlier Tuesday when the
U.S. Supreme Court turned down without comment his complaint that the
state's protocol for lethal injection could cause an agonizing and
painful death. Cooey wanted the state to use a single drug rather than a
three-drug combination, and asked for a stay of execution pending a
hearing on that motion. The court on Monday denied a separate appeal
based on Cooey's claim that his obesity was a bar to humane lethal
Cooey was 75 pounds heavier than when he went to
death row — the result of prison food and 23-hour-a-day confinement, his
The last Ohio inmate to be executed was Christopher
Newton — who was similar in size to Cooey — in May 2007. The execution
team had trouble putting IVs in his arm, delaying his execution nearly
two hours. There were similar problems in the execution of another
inmate in 2006.
Cooey made an earlier trip to the death house. But a
U.S. District Court judge intervened hours before his scheduled
execution in July 2003 when the Ohio Public Defender's office said it
needed more time to assess the case after an appeals court dismissed his
previous attorneys for inadequate representation.
Cooey and a co-defendant were convicted in the sexual
assaults and slayings of McCreery and Wendy Offredo, 21, in September
1986. His co-defendant was 17 and was sentenced to life in prison
because of his age.
The state has now executed 27 inmates since 1999,
when Ohio renewed executions after more than three decades.
Condemned inmate Richard Cooey said he won't make
a final statement if his execution moves forward as scheduled on
Thursday. Cooey said he may write a statement that would be handed
out after his death by injection at the maximum-security prison near
Lucasville. "What could I possibly say?" Cooey said yesterday, in
what may be his last interview from death row. "Other than what I
have said with regards to just give me a shot in the courts, and I
feel I have been wronged in the courts. "And with regards to the
victims' families, I am truly sorry for what happened. But like I
said, there are no words they could possibly accept, in my opinion,
or even believe," he added.
Cooey, 36, is on death row at the maximum-security
prison in Mansfield for kidnapping, raping, assaulting, and murdering
20-year-old Dawn McCreery and Wendy Offredo, 21, on Sept. 1, 1986. They
were University of Akron sorority sisters who were leaving their jobs as
waitresses when 17-year-old Clint Dickens threw a chunk of concrete off
an I-77 overpass, striking the windshield of the car that Ms. Offredo
was driving. Cooey, who was on leave from the Army, was hanging out with
a longtime friend, Kenny Horonetz, and Dickens. The three got into the
car Cooey had borrowed from his grandmother and offered the two women
The five drove to a shopping mall and Ms. Offredo
used a pay phone to call her mother. "I'm game if you're game," Cooey
said as Dickens suggested they rob the two women, according to court
records. They had $37. Cooey pulled a knife on the women when they
realized they were not being driven back to their car. Horonetz demanded
to be let out of the car after Cooey told him to tie Ms. McCreery's
hands. Driving to a wooded area in nearby Norton, Dickens raped Ms.
Offredo. "Hey Clint, put on the Bad Company tape," Cooey said, court
records say. That led Dickens to say the women should be killed because
they knew his name, records show.
Dickens grabbed Ms. Offredo in a chokehold, and Cooey
used a shoelace to strangle her as Dickens strangled Ms. McCreery with
his other shoelace. Cooey beat both women with a club, court records say.
A coroner's report said they died from the blows. In yesterday's
interview, Cooey maintained that Dickens, who could not receive the
death sentence because he was 17 at the time of the murders, killed the
two women. Dickens is serving two life sentences at the Ross
Cooey claimed that his attorney let a plea agreement
fall through in which he would have pleaded guilty to lesser charges.
Cooey said he raped Ms. Offredo, but he said it was "rape under duress."
"I was looking at it - you know when you're a kid and you're high and
bombed - I was looking at it at the time as getting laid. In hindsight
now, I've matured and I've got a clear head and I've seen that it wasn't,"
he said. Cooey said he had drunk a dozen beers, snorted cocaine, and
smoked opium and marijuana that night.
Yesterday, he said Horonetz, who served eight months
in prison on a felonious assault and obstructing justice conviction,
probably could have prevented the killings if he had "talked some sense
into me." Mark Gribben, a spokesman for the state attorney general's
office, said there is no doubt about Cooey's involvement in the robbery,
the assaults, the rapes, and the murders. "The judicial process in this
matter has been exhausted and complete. His case has been considered by
state and federal appellate courts, as well as the state parole board,"
Mr. Gribben said.
Cooey said he is spending most of his time in his
death row cell, drafting appeals on an electric typewriter that his
public defenders gave him. Asked if he has any hope he won't be executed
on Thursday, Cooey replied: "Not much, but there's always hope," and
then he laughed. He said he has not received many visits on death row
over 16 years, with the exception of his father, Richard Cooey, Sr., and
grandmother, Audrey. Cooey said he keeps to himself on death row and
does not get in the "mix of the rat race." Asked to elaborate, he said:
"To be point blank, messing with the homosexuals, gambling, and stuff
like that. I don't partake in any of it. " Cooey said he won't need a
sedative as the state prepares to execute him. "You've got to face it.
It comes with being an adult. It comes with owning up to what society
wants," he said.
UPDATE: A federal judge last night postponed
the execution of Richard Cooey, a convicted murderer who was scheduled
to be put to death this morning. Judge Dan Aaron Polster of U.S.
District Court in Cleveland granted the request of Cooey's lawyer for
more time to study the case. Polster appointed Gregory Meyers of the
Ohio Public Defender's office to take over the case after an appeals
court dismissed Cooey's previous attorneys. ''Ultimately, I have
concluded that the integrity of the federal court would be impugned if
the state of Ohio executes Richard Cooey tomorrow,'' Polster said. Cooey,
36, was scheduled to die by injection today at the Southern Ohio
Correctional Facility in Lucasville. He arrived from death row in
Mansfield yesterday morning, said Andrea Dean, a prison system
spokeswoman. Attorney General Jim Petro's office said it would appeal
Polster's ruling. ''We respectfully disagree with the judge's ruling and
we are currently working on an appeal with the 6th Circuit,'' Mark
Gribben, a spokesman for Petro, said late yesterday. ''That appeal will
be filed tonight. The judges will make their decision when they
Gov. Bob Taft on Tuesday denied Cooey's request for
clemency. Cooey admits he kidnapped, robbed and raped University of
Akron sorority sisters Wendy Offredo, 21, and Dawn McCreery, 20, of
North Ridgeville, in September 1986. He denied he killed them, but says
he's ''morally'' responsible for the murders. According to court
documents, Cooey was on leave from the Army when he and a friend, Clint
Dickens, attacked the women. Dickens was 17 then and could not be
sentenced to death. He is serving a life sentence.
June 13, 2005
Cooey sits on death row in Ohio on borrowed time, but he’s got plenty of
Two years ago next month, Cooey was 13 hours from a date with the
executioner when his attorneys completed the legal equivalent of
football’s “hail mary” play and bought the rapist-murderer something he
denied his two young victims — more time to live.
marked the end of his 19th year on death row. He has spent almost as
much time there as his victims, Dawn McCreedy and Wendy Offredo spent on
In 1986, Cooey was home on leave from the U.S. Army. He spent the day of
August 31 drinking with a pair of friends from high school, Clint
Dickins and another man who was not charged in relation to the crimes
that sent Cooey to death row. Late in the evening on the 31st Cooey and
his brain-trust were amusing themselves by throwing pieces of concrete
from an overpass at the cars on the highway below.
One of the
concrete blocks — about the size of a basketball — struck the windshield
of a car driven by college student Wendy Offredo, who along with her
friend Dawn McCreedy, had just finished a shift at a local coffee shop,
the Brown Derby.
The women were unhurt by the attack, but that was when their luck ran
Cooey, Dickins and the other man approached the women, who had pulled
the undrivable car over to the side of the highway and offered to take
them back to a nearby shopping center to call for assistance. The women
accepted the ride.
While Wendy was talking to her mother, Dickens saw money in her purse.
He suggested to Cooey and the other man that the three of them rob Wendy
and Dawn. Cooey replied, “I’m game if you’re game.” This agreement came
after Cooey himself spoke with Mrs. Offredo and promised her that
nothing bad would happen to the girls. The group then left the deserted
realized Cooey was not returning to the site of the “accident,” the
women asked Cooey where he was going. He pulled out a knife and ordered
them to “shut up.” He then gave the knife to Dickens, who opened it and
held it on the women. Dawn gave up her purse, while she and Wendy asked
their assailants not to hurt them. Cooey told one of his friends to tie
Dawn’s hands, whereupon the man demanded to be let out of the car, and
Cooey let him out. He did not call police to report the abduction,
Cooey drove the
car to an isolated wooded area and the victims were forced to exit the
car. Cooey raped McCreery while Dickens raped Offredo. Then, Cooey raped
Offredo while Dickens raped McCreery. During this time, Cooey called out
Dicken’s name (”hey Clint, put on the Bad Company tape,” he said.),
which infuriated him. Dickens grabbed a billy club which had been placed
on the hood of the car and began hitting a tree.
It was at that
point that the men decided the girls had to die.
Cooey grabbed Offredo in a choke hold, strangling her until she was
unconscious. Once she was on the ground he tied her feet together with a
red bandana. Dickens clubbed McCreery with the billy club when she
attempted to escape. She eventually slumped to the ground. Cooey tied a
shoestring around Offredo’s neck and Dickens tied another around
McCreery’s. During this episode, both victims were beaten in the head
with the billy club and McCreery was stabbed in the neck.
A few days
following the murders, an informant called Akron detectives telling the
police that Cooey was trying to sell jewelry belonging to the victims.
The informant named the street Cooey lived on.
The police immediately
set up surveillance around Cooey’s house while two warrants were being
obtained– one to search and one to arrest Cooey. Cooey attempted to
leave the house and he was arrested. Items were removed from his person
and from his grandmother’s automobile. Thereafter, the house was
searched and various items were removed.
juvenile, was tried as an adult. He was found guilty, and sentenced to
life imprisonment. Cooey waived his right to a trial by jury and a panel
of judges was assigned to try him. Cooey was found guilty of two counts
of aggravated murder, two counts of aggravated robbery, two counts of
kidnaping, one count of felonious assault, and four counts of rape by
the panel of judges, and sentenced to death.
The dance of the appellate lawyers began in 1987 and the convictions
were upheld on direct and post-conviction appeals.
In 2000, a Sixth
Circuit panel denied Cooey’s habeas corpus petition. After expressing
its tentative conclusion that Cooey had failed to make a substantial
showing of the denial of a constitutional right, the judges directed him
to show cause why it should not deny his application for permission to
appeal that decision. Attached to the show cause order was an appendix
summarizing the panel’s tentative findings with respect to each issue
raised in the appeal. The appendix also detailed numerous instances of
Cooey’s careless (or worse) brief writing. The appellate panel found
that “some of Cooey’s claims were irrelevant, his case law inapposite,
and his factual assertions erroneous,” a district court judge would
In June 2003
after an execution date was set by the Ohio Supreme Court, the Ohio
Parole Board conducted a clemency hearing and recommended Governor Bob
Taft deny clemency, which he did.
On June 10,
2003, a little over one month before Cooey’s execution date, the Chief
Deputy Clerk of the Sixth Circuit Court of Appeals mailed letters to the
two attorneys who had represented Cooey in his habeas appeal, advising
them that the Court of Appeals had removed them as his appellate
“The court has authorized me to tell you that you will not receive any
new appointments on appeal or extensions of appointments under the
Criminal Justice Act in capital cases,” the letters read. “This reflects
the court’s dissatisfaction with both the quality of the appellate
briefs and the oral argument in Cooey v. Coyle and the amount of the
attorney ’s fees which were paid to you and [co-counsel] for Mr. Cooey’s
The Clerk then
asked the Ohio Public Defender to find counsel to represent Cooey in the
event that he intended to initiate any further federal litigation.
The Public Defender worked diligently to find someone, but reported back
to the court on July 12, 2003 — 12 days before Cooey’s scheduled
execution — that no one would take the case.
July 16, 2003, Cooey filed in district court a pro se “Motion
to Appoint Counsel in this Death Penalty Case in Which Execution is Set
for July 24, 2003.” The federal judge appointed the Ohio Public
Defender’s office to represent Cooey.
On July 22, 2003, Cooey filed a Rule 60(b) motion and a motion for stay
of execution. Federal Rule of Civil Procedure 60(b) provides a party
with relief from judgment under certain circumstances: “On motion and
upon such terms as are just, the court may relieve a party or a party’s
legal representative from a final judgment, order, or proceeding for the
following reasons: (1) mistake, inadvertence, surprise, or excusable
neglect…or … any other reason justifying relief from the
operation of the judgment.”
On July 23, the
families of Wendy Offredo and Dawn McCreery gathered in Lucasville,
Ohio, site of the execution chamber where the next day, Richard Cooey
would pay the ultimate price for his crimes.
Fate had another cruel twist in store for them.
The Rule 60(b)
motion was made to Judge Dan Aaron Polster, who wrote just 13 hours
before Cooey was to die, “The underlying premise of the stay of
execution is that the Court of Appeals’ letters to Cooey’s prior
appellate habeas counsel have cast a cloud over the integrity of the
habeas process, and that it would be unseemly for Cooey to be executed
while that cloud exists. Rule 60(b) relief is ‘reserved for those cases
of injustices which, in certain instances, are deemed sufficiently
gross’ and to prevent grave miscarriages of justice. The Court finds
that the extraordinary circumstances in this case could warrant Rule
60(b) relief. It is for the Sixth Circuit to make the ultimate
determination as to the meaning and import of its June 10, 2003
letters…I have had 48 hours to grapple with this unprecedented
situation. Ultimately, I have concluded that the integrity of the
federal courts would be impugned if the State of Ohio executes Richard
Polster knew the
character of the man he was sparing.
“Here, Richard Cooey brutally raped and murdered two women. He and his
associates set up this heinous crime by standing on a bridge and
dropping a concrete chunk through the windshield of a randomly selected
car as it passed underneath,” he wrote. “Cooey and his associates then
tortured and murdered the two victims under the guise of offering
assistance. A state that elects to establish a system of capital
punishment presumably has in mind such defendants.
thoughtful people may debate the significance of the life of Richard
Cooey. The function of federal habeas corpus, however, is to ensure the
integrity of a state’s judicial process, particularly when that may
culminate in a defendant’s execution. It is our responsibility as
federal judges to ensure the integrity of our own process, and that is
why I have stayed Cooey’s execution.”
Eventually, the Sixth Circuit ruled that Cooey deserved another chance
to demonstrate that his appellate lawyers were ineffective. His second
round of post-conviction appeals is working its way through the state
State v. Cooey,
Not Reported in N.E.2d, 1987 WL 31921 (Ohio App. 1987). (Direct Appeal)
1. HISTORY OF THE CASE
Richard Wade Cooey, II, defendant-appellant, was
tried by a panel of judges and found guilty of two counts each of
aggravated murder under R.C. 2903.01(A) and R.C. 2903.01(B), with three
aggravating specifications to each count [R.C. 2929.04(A)(3), (5), and
(7) ]. Cooey was also found guilty of two counts of kidnapping, two
counts of rape, two counts of aggravated robbery and one count of
felonious assault. The trial panel, after a penalty hearing, found that
the aggravating circumstances for the aggravated murders outweighed the
mitigating factors. The trial panel sentenced Cooey to death for the
aggravated murders and to imprisonment for the other seven felonies.
Cooey appeals his conviction and death sentence
assigning thirteen errors, with the seventh assignment of error having
2. STATEMENT OF THE FACTS
On August 31, 1986, Wendy Offredo and Dawn McCreery
left their place of employment to go to a bar frequented by young adults.
As they drove on the Akron expressway, they traveled under a bridge
where Cooey, along with a juvenile co-defendant, Clint Dickens, and
Kenny Horonetz stood. Clint Dickens hurled a piece of concrete off the
bridge, hitting Offredo's car, smashing the windshield, damaging the
side of the car and the door frame. Offredo was cut by the glass and
immediately pulled to the side of the road.
Cooey and his companions approached the women and
drove them to a pay phone where they could call the Akron police, as
well as their parents. Offredo's mother said she would come to the car
and Cooey gave the mother directions on the location of the disabled
car. While the women made their phone calls, Clint Dickens saw money in
Offredo's wallet and suggested to Cooey and Horonetz that they rob the
women. Once everyone got back into Cooey's car, he drove for a distance
and then stopped the car. Cooey pulled a knife on the women and ordered
Horonetz to tie them up. Horonetz refused, got out of the car and left.
Cooey and Dickens took one of the victims' purses.
Cooey drove the car to an isolated wooded area and the victims were
forced to exit the car. Cooey raped McCreery while Dickens raped Offredo.
Then, Cooey raped Offredo while Dickens raped McCreery. During this
time, Cooey called out Dicken's name, which infuriated him. Dickens
grabbed a billy club which had been placed on the hood of the car and
began hitting a tree.
Cooey grabbed Offredo in a choke hold, strangling her
until she was unconscious. Once she was on the ground he tied her feet
together with a red bandana. Dickens clubbed McCreery with the billy
club when she attempted to escape. She eventually slumped to the ground.
Cooey tied a shoestring around Offredo's neck and Dickens tied another
around McCreery's. During this episode, both victims were beaten in the
head with the billy club and McCreery was stabbed in the neck.
The pair stripped the bodies of all jewelry and
placed it in the purses. They then dragged the bodies off the road and
into some weeds. Cooey and Dickens brushed the car tracks off the road
with branches and left, driving to a nearby carwash to wash the blood
off the car, their clothing and themselves. Thereafter, they discarded
the purses. The next day, when Cooey learned that the police had
discovered the bodies, he, Dickens, Horonetz and Terry Grant went back
to where the purses had been thrown, recovered them, and took them to
Cooey's home where they were burned.
A few days following the murders, an informant called
the detective bureau telling the police that Cooey was trying to sell
jewelry belonging to the victims. The informant named the street Cooey
lived on. The police immediately set up surveillance around Cooey's
house while two warrants were being obtained-one to search and one to
arrest Cooey. Cooey attempted to leave the house and he was arrested.
Items were removed from his person and from his grandmother's automobile.
Thereafter, the house was searched and various items were removed. At
the police station, Cooey gave several statements to the police. A
motion to suppress these statements was made and denied.
Clint Dickens, the juvenile, was tried as an adult.
He was found guilty, and sentenced to life imprisonment. Cooey waived
his right to a trial by jury and a panel of judges was assigned to try
him. Cooey was found guilty by the panel of judges, and sentenced to
* * *
4. APPELLATE REVIEW PROCEDURES
In order to determine whether Cooey's death sentence
should be affirmed upon appeal, this court is required to do three
things. First, it must answer the specific issues raised by Cooey
regarding the proceedings below. Second, it must independently weigh the
aggravating circumstances in this case against any factors which
mitigate against imposition of the death penalty. Finally, it must
independently consider whether Cooey's sentence is disproportionate to
the death penalty imposed in similar cases. State v. Rogers (1985), 17
Ohio St.3d 174, 175.
5. PRE-TRIAL MOTIONS
ASSIGNMENT OF ERROR I
“That the trial court erred in failing to suppress
statements obtained from appellant by the police for reason that said
statements were obtained in violation of appellant's Fifth, Sixth and
Fourteenth Amendments to the U.S. Constitution and Article I Section 10
of the Ohio Constitution.”
Cooey made two taped statements admitting his
involvement in the aggravated assault, kidnapping, robbery, rape and
murder of the victims. These taped confessions were made on September 1,
1986 and September 2, 1986, immediately following Cooey's arrest. The
entire time period within which Cooey gave his statements covered about
five and one quarter hours.
The first taped statement began on September 1, 1986
at 10:30 p.m. and ran to 10:47 p.m., when the statement was interrupted
so that Cooey could show the police the location of the house where the
co-defendant, Clint Dickens, resided. The first tape resumed at 11:59
p.m. and lasted until 12:35 a.m. on September 2, 1986. The second taped
statement began at 1:55 a.m. on September 2, 1986 and continued until
2:14 a.m. when another break was taken. The second taped statement
resumed at 2:45 a.m. and continued until 3:16 a.m. Cooey motioned the
trial court for a suppression of both taped statements claiming that he
did not understand the meaning of his rights.
A defendant's statements may only be admitted into
evidence at a criminal trial if the statements were knowingly and
voluntarily made. Mincey v. Arizona (1978), 437 U.S. 385. Whether the
statements were knowingly and voluntarily made is to be determined from
the totality of the circumstances. State v. Barker (1978), 53 Ohio St.2d
135. Initially, although not in itself enough to show voluntariness,
Cooey repeatedly waived his Miranda rights throughout the interrogation.
State v. Utsler (1970), 21 Ohio App.2d 167. Despite the length of the
interrogation period, the questioning itself was intermittent and
relatively short. The actual time of the two taped statements together
was approximately one and a half hours.
There is no claim nor evidence of physical
deprivation or mistreatment. There is also no evidence that there were
any threats or inducements made to elicit the statements. In fact, it is
apparent that Cooey's statements were a self-serving attempt to deflect
the blame to the co-defendant, Clint Dickens, and to thus minimize his
role in the crimes. Although Cooey had little or no prior criminal
experience and was nineteen at the time he made the statements, he did
possess an above-average intelligence. These facts combine to lead this
court to conclude that the statements were knowingly and voluntarily
given. The trial court properly denied Cooey's motion to suppress.
Assignment of error one is overruled.
ASSIGNMENT OF ERROR II
“That the trial court erred in failing to suppress
evidence seized as a result of search warrants issued in this case for
reason that said evidence was seized in violation of his Fourth
After the discovery of the victims' bodies, the
discovery of evidence from the murder scene, the police interview of a
witness, David Jones, and the evidence provided by the victims' families,
the police applied for a search warrant of Cooey's residence and
automobile. The warrant was authorized by a judge of the municipal court.
Upon execution of the warrant, the police seized a number of items from
Cooey's home and automobile. Cooey argues that the trial court erred in
failing to suppress this evidence.
Cooey initially contends that the affidavit submitted
with the application for the warrant was insufficient to justify the
issuance of the warrant. In reviewing the sufficiency of the affidavit,
this court must ensure, through a conscientious review of the affidavit,
that the issuing magistrate had a substantial basis for concluding that
probable cause existed. State v. Bean (1983), 13 Ohio App.3d 69. The
affidavit of Detective Hillegas, and the sworn testimony of Officer
Wright and Detective Hillegas, given prior to the issuance of the
warrant provided the municipal judge with sufficient information upon
which to conclude that probable cause existed to issue the search
warrant. Crim.R. 41(C).
Cooey also contends that the search made pursuant to
the warrant became exploratory and exceeded the scope of the warrant.
Cooey urges that the items seized were not specifically listed in the
warrant. The warrant clearly described the residence and automobile to
be searched. The warrant authorized the search and seizure of the
1. One gold necklace, 16?-18? in length. 2. One gold
necklace, 12? in length. 3. Four (4) wrist bracelets, gold in color. 4.
Two (2) gold ladies rings. 5. Two (2) ladies rings with diamond setting.
6. One ladies ring with red stone setting. 7. One ladies watch, red
stones around face of watch. 8. One ladies watch, with black plastic
band. 9. One police type nightstick. 10. One checkbook from National
City Bank (In the name of Wendy Offredo). 11. One credit card from
Highbees (In the name of Wendy Offredo). 12. One credit card from
O'Neils (In the name of Wendy Offredo).
Cooey complains that certain items seized do not fit
under any of the enumerated items. This court disagrees. The description
of the jewelry seized from Cooey's leather jacket sufficiently match the
description provided in the warrant. The watch and knives taken from
Cooey were taken incidental to a lawful arrest. The billy club found in
Cooey's bedroom was specifically described in the warrant and found on
Although the search warrant did not specify the
seizure of items containing trace evidence, the police seized clothing
items found laying around Cooey's bedroom and in the basement, because
they were believed to be recently worn by Cooey. The seizure of these
items meet the plain view exception to the warrant requirement. Coolidge
v. New Hampshire (1971), 403 U.S. 443. Accordingly, assignment of error
two is overruled.
ASSIGNMENT OF ERROR XI
“The trial court erred in denying appellant's motion
for change of venue.” In this assignment of error, Cooey contends that
the extensive pre-trial publicity of this case required a change of
venue. Cooey asserts that the fact-finder could not impartially consider
the case because of the pre-trial publicity. This argument is not well
A decision to change venue is within the trial
court's discretion. State v. Johnson (1972), 31 Ohio St.2d 106,
paragraph three of the syllabus. This court will not reverse such a
decision absent a clear showing that the trial panel abused its
discretion. Abuse of discretion connotes more than an error of law or
judgment, it implies that the trial panel's attitude is unreasonable,
arbitrary or unconscionable. No such abuse appears from the record here.
See State v. Adams (1980), 62 Ohio St.2d 151, 157.
Prior to any jury voir dire, the defense moved for a
change of venue. Cooey then decided to waive his right to a trial by
jury while renewing his motion for a change of venue. The record here is
insufficient to demonstrate that the pre-trial publicity was so
pervasive and prejudicial as to warrant a finding that a fair trial was
not probable in this jurisdiction. State v. Herring (1984), 21 Ohio App.3d
18. Accordingly, the trial panel did not err in denying the motion for a
change of venue, and this assignment of error is overruled.
ASSIGNMENT OF ERROR III
“That the trial court erred in failing to require the
state to elect whether to proceed upon a prosecution theory of prior
calculation or design as felony murder.” (sic)
In this assignment of error, Cooey claims that the
state was required to elect, prior to trial, whether to proceed on the
count of felony murder or on the count of murder by prior calculation or
design. Cooey asserts that Crim.R. 14 requires the court to order an
election once there is a finding of prejudice by a joinder of the
offenses. Cooey failed to show either prejudicial joinder or any other
legal basis for requiring the state to elect between the two different
theories of aggravated murder.
A defendant who asserts that a joinder is improper
has the burden of making an affirmative showing that his rights are
prejudiced. State v. Williams (1981), 1 Ohio App.3d 156, 159. Although
Cooey asserts that he was prejudiced, he provides no support for his
assertion. Upon review of the record, this court does not find that
Cooey was prejudiced by the joinder of the aggravated murder counts.
R.C. 2941.25(A) provides: “Where the same conduct by
defendant can be construed to constitute two or more allied offenses of
similar import, the indictment or information may contain counts for all
such offenses, but the defendant may be convicted on only one.”
The allied offense statute is only a sentencing
statute which precludes, not an indictment or the finding of guilt of an
allied offense of similar import, but rather a judgment of conviction on
both offenses. State v. Kent (1980), 68 Ohio App.2d 151. A judgment of
conviction is defined as a plea or verdict of guilty and the imposition
of sentence. Crim.R. 32(B), State v. Henderson (1979), 58 Ohio St.2d
171. Cooey was sentenced on the felony murder counts and not on the
murder by prior calculation or design counts. Accordingly, the allied
offense statute was not violated here.
The state was not required to elect whether to
proceed upon a prosecution theory of prior calculation or design or
felony murder. Cooey's third assignment of error is overruled.
6. EVIDENTIARY RULINGS
ASSIGNMENT OF ERROR IV
“In a capital murder prosecution, evidence of a
criminal defendant's diminished capacity is relevant and the
introduction of such evidence should be permitted.”
Cooey contends that the proffered testimony of Dr.
Siddall relative to diminished capacity should have been admitted at the
guilt phase as relevant to the specific intent or purpose element
contained in the first four counts of the indictment. Although this
testimony was later admitted at the sentencing phase of the trial, Cooey
argues that the denial of his opportunity to present such evidence at
the guilt phase denies him the right to present evidence on his behalf.
This contention is not well taken.
Under R.C. 2929.03(D)(1) and R.C. 2929.04(B)(3), the
defendant's mental capacity is a formal mitigating factor in capital
cases rather than a defense to be presented during the guilt phase.
State v. Wilcox (1982), 70 Ohio St.2d 182. After giving a written plea
of insanity and having an evaluation of his mental condition at the time
of the crime, Cooey withdrew his not guilty by reason of insanity plea
prior to trial. Expert psychiatric testimony, unrelated to the insanity
defense, may not be offered to show that the defendant lacked the mental
capacity to form the specific mental state required for a particular
crime. Wilcox, supra, paragraph two of the syllabus. Accordingly, the
trial panel properly refused the testimony of Dr. Siddall during the
guilt phase. This assignment of error is overruled.
ASSIGNMENT OF ERROR VI
“It is error for a presiding judge in a capital
murder case tried to a three judge panel, to disseminate Victim Impact
Statements to the other judges, without showing them to defendant or
defense counsel and consider the contents of the statement in the
Cooey contends that the trial panel erred by
considering the victim impact statement in the mitigation phase of the
trial. Cooey further contends error in the failure to provide a copy of
the victim impact statement to the defense. These contentions are not
Cooey requested that the trial panel order a pre-sentence
investigation and report. Here, the pre-sentence report was accompanied
by the victim impact statements. A victim impact statement “does not
relate to any of the statutory aggravating or mitigating factors which
the [fact-finder] is required to weigh.” State v. Denson (Oct. 1, 1986),
Hamilton App. No. C-850311, unreported, at 27. Consideration of a victim
impact statement is proper only at the time of sentencing. Booth v.
Maryland (1987), 482 U.S. 496, 96 L.Ed.2d 440. However, the trial panel
clearly discovered its error in admitting the victim impact statements,
and corrected the error.
The trial panel specifically stated in its separate
opinion, required under R.C. 2929.03(F), that the victim impact
statements were not given any consideration in the mitigation phase and
had no bearing on the panel's decision to sentence Cooey to death. Thus,
the error in the admission of the statements did not act to prejudice
Cooey. Crim.R. 32.2(C)(1) provides that the report of the pre-sentence
investigation is not to be confidential in aggravated murder cases. Here,
the victim impact statements were not considered by the trial panel and
the failure to provide a copy of these statements to the defense was not
prejudicial. This assignment of error is overruled.
7. Verdict and Judgment
ASSIGNMENT OF ERROR XII
“The verdicts in this case were against the manifest
weight of the evidence.”
Cooey asserts that the manifest weight of the
evidence is insufficient to support his conviction on the murder with
prior calculation or design counts. Cooey contends that the evidence
shows that the decision to kill the victims was instantaneous rather
than with thought and preparation. A reviewing court will not reverse a
verdict where there is substantial evidence upon which the trier of fact
could reasonably conclude that all of the elements of an offense have
been proven beyond a reasonable doubt. State v. Eley (1978), 56 Ohio St.2d
169, syllabus. State v. Thomas (1982), 70 Ohio St.2d 79.
Here, there is substantial evidence that Cooey and
the co-defendant, Clint Dickens, discussed and formulated a plan to kill
the victims. Where evidence adduced at trial reveals the presence of
sufficient time and opportunity for the planning of a murder to
constitute prior calculation, and the circumstances surrounding the
murder show a scheme designed to implement the calculated decision to
kill, a finding of prior calculation and design is justified. State v.
Robbins (1979), 58 Ohio St.2d 74.
The evidence demonstrates that during the rape, Cooey
used Dickens' name. Dickens became angry because the victims had learned
his name. After the rape, the victims got back in the car while Cooey
and Dickens remained outside of the car and talked. Dickens stated that
the victims would have to be killed because they knew his name. This
evidence supports the finding that there was prior calculation.
The circumstances surrounding the murders also
demonstrate a scheme designed to implement the calculated decision to
kill. As the victims were getting out of the car, each of the defendants
grabbed one of the victims and rendered them unconscious by
strangulation or club beating resulting in death or near death. Once
unconscious, the victims were beaten and choked to make sure that they
were dead. Accordingly, there was substantial evidence upon which the
trial panel could reasonably conclude that Cooey committed the murders
with prior calculation and design.
A review of the record further demonstrates that
there was substantial evidence to find that Cooey had committed each and
every crime of which he was found guilty. This assignment of error is
ASSIGNMENT OF ERROR VIII
“The court committed error in sentencing the
defendant to death in that the aggravating circumstances that the
defendant was convicted of did not outweigh the mitigating factors by
proof beyond a reasonable doubt as required by ORC 2929.03 and the
United States Supreme Court.”
In this assignment of error, Cooey alleges that the
aggravating circumstances do not outweigh the mitigating factors beyond
a reasonable doubt, thus the trial panel's imposition of the death
penalty was improper. This assignment of error is reviewed separately
from our own mandated statutory independent review and weighing process
as required under R.C. 2929.05(A).
Under R.C. 2929.04, in order for the trial panel to
impose a death penalty, it must find that the aggravating circumstances
enumerated under R.C. 2929.04(A) and proven beyond a reasonable doubt,
outweigh the mitigating factors set forth under R.C. 2929.04(B), the
existence of which must be established by a preponderance of the
evidence. In essence, the aggravating circumstances proven beyond a
reasonable doubt were, that the offense was committed for the purpose of
escaping detection, apprehension, trial or punishment for another
offense committed by the offender [R.C. 2929.04(A)(3) ]; that the
offense was part of a course of conduct involving the purposeful killing
of two or more persons by the offender [R.C. 2929.04(A)(5) ]; and that
the offenses were committed while the offender was committing kidnapping,
rape and aggravated robbery, and either the offender was the principal
offender, or if not, committed the aggravated murder with prior
calculation and design. [R.C. 2929.04(A)(7) ].
R.C. 2929.04(B) specifies that the court must
consider the nature and circumstances of the crime; and the history,
character and background of the offender as mitigating factors. The
court must also consider any of the seven additional mitigating factors
specified under R.C. 2929.04(B), which are established by a
preponderance of the evidence.
Of these seven specified mitigating factors, Cooey
presented evidence concerning only two of these factors. Cooey was
clearly only nineteen at the time the crimes were committed, and Cooey
did not have any significant criminal history. Cooey also asserted that
he was innocent of aggravated murder, had a history of drug and alcohol
abuse, and that his juvenile co-defendant could not be sentenced to
Although Cooey attempted to show that he had a
diminished mental capacity, his own expert testimony demonstrated that
Cooey did have the capacity to appreciate his criminality and could
conform his conduct to the requirements of law. Cooey also attempted to
show that he was not the principal offender and that his degree of
participation in the offenses did not justify the imposition of the
death penalty. However, Cooey was found to be the principal offender
beyond a reasonable doubt at trial. Therefore, Cooey failed to meet his
burden of demonstrating the existance of this mitigating factor.
Upon review of the aggravating circumstances proven
beyond a reasonable doubt, and the mitigating factors shown by a
preponderance of the evidence, the trial panel did not err in holding
that the aggravating circumstances outweighed the mitigating factors.
The mitigating effect of Cooey's youth and lack of criminal history, his
abusive family history, his substance abuse, his claimed innocence, and
the unequal punishment between Cooey and his co-defendant, does not
outweigh the aggravating circumstances in this case.
Cooey intentionally and brutally kidnapped, raped and
robbed the two victims over a period of three hours, then, Cooey killed
the two victims by beating, choking and strangling them in order to
escape detection. The trial panel properly found that these aggravating
circumstances outweighed the mitigating factors in this case beyond a
reasonable doubt. See State v. Byrd (1987), 32 Ohio St.3d 79; State v.
Martin (1985), 19 Ohio St.3d 122. This assignment of error is overruled.
8. INDEPENDENT REVIEW
This court must also undertake the independent
weighing process required by R.C. 2929.05(A) to determine whether the
aggravating circumstances of which Cooey was found guilty outweigh the
mitigating factors beyond a reasonable doubt. The aggravating
circumstances of which Cooey was found guilty are as follows:
(1) That the Aggravated Murder of Wendy Offredo was
part of a course of conduct involving the purposeful killing or attempt
to kill two or more persons; [R.C. 2929.04(A)(5) ].
(2) That the Aggravated Murder of Wendy Offredo was
committed while the Defendant committed the offense of Kidnapping,
Robbery, and Rape and that he was the principal offender and the
aggravated murder was committed with prior calculation and design; [R.C.
(3) That the Aggravated Murder of Wendy Offredo was
committed for the purpose of escaping detection, apprehension, trial or
punishment for another crime or crimes, to wit: Rape, Kidnapping and
Aggravated Robbery; [R.C. 2929.04(A)(3) ].
(4) That the Aggravated Murder with prior calculation
and design of Dawn McCreery was part of a course of conduct involving
the purposeful killing or attempt to kill two or more persons; [R.C.
(5) That the Aggravated Murder of Dawn McCreery was
committed while the Defendant committed the offenses of Rape, Kidnapping
and Robbery and that he was the principal offender and the aggravated
murder was committed with prior calculation and design; [R.C.
(6) That the Aggravated Murder of Dawn McCreery was
commited for the purpose of escaping detection, apprehension, trial or
punishment for another crime or crimes, to-wit: Rape, Kidnapping and
Aggravated Robbery; [R.C. 2929.04(A)(3) ].
Initially, it must be pointed out that the second and
fifth aggravating circumstances are an incomplete statement of R.C.
2929.04(A)(7). R.C. 2929.04(A)(7), in whole part is as follows:
“Imposition of the death penalty for aggravated murder is precluded,
unless one or more of the following is specified in the indictment or
count in the indictment pursuant to section 2941.14 of the Revised Code
and proved beyond a reasonable doubt:
* * *
“(7) The offense was committed while the offender was
committing, attempting to commit, or fleeing immediately after
committing or attempting to commit kidnapping, rape, aggravated arson,
aggravated robbery, or aggravated burglary, and either the offender was
the principal offender in the commission of the aggravated murder or, if
not the principal offender, committed the aggravated murder with prior
calculation and design.”
The criteria set forth in R.C. 2929.04(A)(7) are
constructed in the alternative. The death penalty may be imposed only
where the aggravated murder was committed during the course of one of
the enumerated felonies, and the defendant was the actual killer, or,
where the defendant was not the actual killer, if he committed the
murder with prior calculation and design. These alternatives are not to
be charged and proven in the same cause. Penix, supra, at 371. Thus,
since Cooey was found to be the principal offender, then the aggravating
circumstance is shown, and the question of whether the offense was also
committed with prior calculation and design need not be considered.
In addition, the trial panel should not have
considered the two repeat murder aggravating circumstances separately
since they arose from the same indivisible course of conduct, and thus
were duplicative. See Jenkins, supra, paragraph five of the syllabus.
Resentencing is not required in this case however, since this court
finds that the remaining aggravating circumstances outweigh the
mitigating factors beyond a reasonable doubt, and it is clear that the
trial panel's consideration of the duplicative aggravating circumstance
in the penalty phase did not affect the verdict. Jenkins, supra,
paragraph five of the syllabus.
R.C. 2929.04(B) sets forth seven factors to be
considered in mitigation of the death penalty: (1) Whether the victim of
the offense induced or facilitated it; (2) Whether it is unlikely that
the offense would have been committed, but for the fact that the
offender was under duress, coercion, or strong provocation; (3) Whether,
at the time of committing the offense, the offender, because of a mental
disease or defect, lacked substantial capacity to appreciate the
criminality of his conduct or to conform his conduct to the requirements
of the law; (4) The youth of the offender; (5) The offender's lack of a
significant history of prior criminal convictions and delinquency
adjudications; (6) If the offender was a participant in the offense but
not the principal offender, the degree of the offender's participation
in the offense and the degree of the offender's participation in the
acts that led to the death of the victim; (7) Any other factors that are
relevant to the issue of whether the offender should be sentenced to
Three persons presented mitigating evidence at the
penalty phase of the trial: a clinical psychologist, Cooey's mother and
Cooey himself. The psychologist spent approximately seven hours with
Cooey. He testified that: 1) Cooey possessed an I.Q. in the high average
range, 2) Cooey suffered physical abuse beginning at an early age, 3)
Cooey had a severe personality disorder and exhibited early signs of an
emotional disturbance, 4) Cooey had a chronic alcohol and drug
dependency, and 5) Cooey suffered from a mental disorder that would
likely affect his judgment and behavioral control. On cross-examination,
the psychologist testified that Cooey's mental disorder did not prevent
him from appreciating the criminality of his actions or from conforming
his conduct to the requirements of law.
Cooey's mother testified that Cooey's father began to
physically abuse Cooey at age three. After his parents divorced, Cooey
divided his time, from age eleven to eighteen, living with his mother,
his father, and his grandmother. Cooey's mother also testified that his
father abused alcohol and drugs, and that his father introduced him to
drugs when he was about fifteen years old.
Cooey was the last person to give evidence at the
sentencing hearing. He made an unsworn oral statement which corroborated
his mother's testimony concerning his childhood. Cooey stated that he
increasingly used drugs from the sixth grade on. He further stated that
at the time of the crime, he was home on a thirty-one day leave from the
army, and spent two thousand dollars buying alcohol and drugs to have a
good time during that period. Cooey claimed that after the crime he was
in a daze and did not realize exactly what had happened. He further
stated that he confessed to the police because he did not feel too good
about committing the crimes. The state presented no witnesses in the
Applying this testimony, in addition to the evidence
presented at trial, and the presentence report furnished at the request
of Cooey, this court finds that factors (1), (2), (3) and (6) do not
apply. With regard to factor (4), the youth of the offender, this court
notes that Cooey was nineteen years old. His youth however, by itself,
does not absolve Cooey of responsibility for his crimes. See Byrd, supra,
at 93. This court grants this factor very little weight in the absence
of any evidence to show why this factor should be given any greater
weight. Factor (5), Cooey's lack of a significant history of prior
criminal convictions and delinquency adjudications, has been noted and
considered by this court.
Under the seventh factor, this court has considered
(1) Cooey's difficult and violent childhood, (2) his chronic alcohol and
drug dependency, (3) his claimed abuse of alcohol and drugs at the time
of the crime together with the fact that there was no evidence to
support this claim, and (4) the fact that Cooey's co-defendant is not
subject to the same penalty because he was under eighteen at the time of
This court is also required to consider the nature
and circumstances of the offenses. The coroner testified that one victim
sustained multiple fractures of the skull from being clubbed in the head
at least eleven times. This victim also sustained injuries to other
parts of her body, was strangled with a shoelace, stabbed in the neck,
and an “X” was carved on her chest. The other victim was clubbed at
least three times in the head, sustained various injuries to other parts
of her body, was strangled with a shoelace, and also had an “X” carved
on her stomach. The evidence further indicates that the victims futilely
attempted to fend off the blows with their arms, hands and legs and that
their deaths were not instantaneous.
In sum, these aggravated murders were brutal and
violent. The three mitigating factors presented and considered do not
outweigh the aggravating circumstances. Based upon this mandatory
statutory independent review, this court holds: (1) That the aggravating
circumstances outweigh the mitigating factors beyond a reasonable doubt
and (2) that the sentence of death is an appropriate penalty for Richard
Wade Cooey, II.
9. PROPORTIONALITY OF DEATH SENTENCE
This court must also determine whether Cooey's death
sentence is excessive or disproportionate to the penalty imposed in
similar cases. This determination encompasses a review of only those
cases which this court itself has decided. State v. Steffen (1987), 31
Ohio St.3d 111, 123-124.
This court has previously reviewed and affirmed three
penalties of death. State v. Post (Jan. 15, 1986), Lorain App. No. 3868,
unreported; Greer, supra; Benner, supra. The murders involved in Post
and Greer were committed during the commission of a robbery. Each of
these two cases involved a single aggravating circumstance of felony
murder. R.C. 2929.04(A)(7). The multiple murders committed in Benner
were committed after raping the victims. The murders in Benner involved
the multiple murder specification. R.C. 2929.04(A)(5). In all three
cases, the murders were committed in a brutal fashion. This court finds
that the death penalty given Cooey is not excessive nor disproportionate
as compared to these previous cases.
Accordingly, this court affirms the death penalty
imposed on Cooey.
This court first finds that there is no merit to any
of the specific issues raised by Cooey concerning the proceedings below.
Second, this court has independently evaluated the aggravating
circumstances, as modified, and finds that these aggravating
circumstances outweigh any and all of the mitigating factors presented
by Cooey beyond a reasonable doubt. Third, this court finds that the
sentence of death is appropriate in this case, as it is neither
excessive nor disproportionate to the penalty imposed in similar cases.
Thus, in accordance with R.C. 2929.05(A), the conviction and sentence of
death in this case is affirmed.
The Court finds that there were reasonable grounds
for this appeal. We order that a special mandate issue out of this court,
directing the County of Summit Common Pleas Court to carry this judgment
into execution. A certified copy of this journal entry shall constitute
the mandate, pursuant to App.R. 27. Immediately upon the filing hereof,
this document shall constitute the journal entry of judgment, and it
shall be file stamped by the Clerk of the Court of Appeals at which time
the period for review shall begin to run. App.R. 22(E). Costs taxed to
QUILLIN, P.J., and MAHONEY, J., concur.
Cooey v. Coyle,
289 F.3d 882 (6th Cir. 2002) (Habeas)
After his murder convictions, and sentence of death,
were affirmed on direct appeal, 46 Ohio St.3d 20, 544 N.E.2d 895, and
his state postconviction petition was denied, petitioner sought federal
habeas corpus relief. The United States District Court for the Northern
District of Ohio, Sam H. Bell, J., denied petition. Petitioner appealed.
The Court of Appeals, Suhrheinrich, Circuit Judge, held that: (1)
reweighing of aggravating circumstances and mitigating factors that was
performed by Ohio Supreme Court on direct appeal in affirming death
sentence did not involve a decision that was contrary to, or an
unreasonable application of, clearly established federal law, or an
unreasonable determination of the facts in light of the evidence
presented, and (2) petitioner was not entitled to relief based on
ineffective assistance of counsel. So ordered.
SUHRHEINRICH, Circuit Judge.
This is an appeal from a judgment denying Petitioner
Richard Cooey's petition for writ of habeas corpus under 28 U.S.C. §
2254. We determine that Cooey is entitled to a certificate of
appealability on only two of his claims. We also decide on the merits
that Cooey is not entitled to relief as to either issue.
On the night of August 31, 1986, Appellant, Richard
Wade Cooey II, on leave from the army, and two of his friends, Clint
Dickens and Kenneth Horonetz, threw a large chunk of concrete over the
side of a bridge just as Wendy Offredo and Dawn McCreery were passing
below along Interstate 77 in Akron, Ohio. The concrete hit Wendy's car,
forcing her to pull over. The men went down and offered a ride so the
women could call for help. After driving them to a nearby mall to use a
telephone, the men took the women to a field where they were raped,
beaten, and murdered by Cooey and Dickens. The men also stole Wendy's
The bodies were found on September 1. The Summit
County Coroner concluded that Wendy and Dawn had died of multiple blows
to the head-Wendy received at least three blows and Dawn at least
eleven-with strangulation also contributing to Wendy's death. He also
concluded that both women had oral and vaginal intercourse before death.
B. Procedural History
Cooey was indicted on September 8, 1986, with two
counts of aggravated murder in violation of Ohio Rev.Code §§ 2903.01(A)
and 2903.01(B), including three specifications of aggravating
circumstances in violation of Ohio Rev.Code §§ 2929.04(A)(3),
2929.04(A)(5), and 2929.04(A)(7). Cooey was also charged with two counts
of kidnapping with the purpose of engaging in nonconsensual sexual
activity, in violation of Ohio Revised Code § 2907.02(A); and two counts
of aggravated robbery, in violation of Ohio Rev.Code §§ 2911.01(A)(1)
and 2911.01(A)(2). Lastly, he was charged with one count of felonious
assault, in violation of Ohio Rev.Code § 2903.11(A)(2), for dropping the
chunk of concrete on Wendy's car.
Cooey entered a not guilty plea. Cooey waived his
right to trial by jury and was tried by a three-judge panel according to
Ohio Rev.Code §§ 2945.05 and 2945.06. The panel found Cooey guilty of
all counts and specifications.
On December 5, 1986, the panel conducted a mitigation
hearing, pursuant to Ohio Rev.Code § 2929.03(C)(2)(b). The panel
returned a unanimous verdict, finding beyond a reasonable doubt that the
aggravating circumstances outweighed the mitigating factors, and
recommended the death penalty. The two aggravated murders under*886 §
2903.01(A) were merged into the two convictions under Ohio Rev.Code §
2903.01(B). Cooey was sentenced to death for each murder and to
imprisonment for the seven other felonies.
Cooey timely appealed, setting forth thirteen
assignments of error. The Ohio Court of Appeals upheld Cooey's
conviction and sentence on December 23, 1987. See State v. Cooey, 1987
WL 31921 (Dec. 23, 1987). Cooey appealed to the Ohio Supreme Court,
raising thirty-three issues. On October 11, 1989, the Ohio Supreme Court
affirmed Cooey's conviction and death sentence. See State v. Cooey, 46
Ohio St.3d 20, 544 N.E.2d 895 (1989). The United States Supreme Court
denied certiorari on April 1, 1991.
Cooey then sought state post-conviction relief. He
filed a petition to vacate or set aside his sentence pursuant to Ohio
Rev.Code § 2953.21, in the Court of Common Pleas of Summit County, Ohio,
raising sixty-five claims for relief. On July 31, 1992, the Summit
County Common Pleas Court denied Cooey's petition. See State v. Cooey,
No. 86-09-1109A (Com. Pl. Summit Cty. July 21, 1992). Cooey appealed,
raising eight assignments of error. State v. Cooey, 1994 WL 201009 (Ohio
Ct.App. May 25, 1994). The Ohio Court of Appeals found that most of
Cooey's claims were barred by res judicata. Id. It did, however, address
Cooey's claims of ineffective assistance of counsel on the merits. Cooey
appealed to the Ohio Supreme Court, but that court declined to take
jurisdiction of Cooey's post-conviction appeal.
On November 3, 1994, Cooey filed an application to
reopen his direct appeal. Cooey claimed that his appellate counsel was
ineffective and asserted fifty-eight claims that appellate counsel
failed to raise. On January 16, 1995, the Ohio Court of Appeals denied
his request to reopen his direct appeal, finding that Cooey had
procedurally defaulted these claims because he had failed to establish
good cause for not filing the application to reopen within ninety days
from the effective date of Ohio App. R. 26(B), July 1, 1993. The Ohio
Supreme Court affirmed the judgment of the Ohio Court of Appeals. See
State v. Cooey, 73 Ohio St.3d 411, 653 N.E.2d 252 (1995). Cooey's motion
for reconsideration was also denied.
Cooey filed this petition for writ of habeas corpus
in October 1996. Among other grounds for relief, Cooey claimed that he
was denied the effective assistance of both trial and appellate counsel,
and that he was denied a meaningful opportunity to litigate his federal
claims in the state courts. On September 4, 1997, the district court
denied the writ. See Cooey v. Anderson, 988 F.Supp. 1066 (N.D.Ohio
1997). Under the procedure that pre-dated the Antiterrorism and
Effective Death Penalty Act of 1996 (AEDPA), the district court then
issued a certificate of probable cause for appeal. Petitioner then filed
a notice of appeal.
On October 12, 2000, this Court entered an order
ruling that the AEDPA applies to this case, and that the district
court's issuance of a certificate of probable cause under the pre-AEDPA
version of 28 U.S.C. § 2253(c) was ineffective. We elected to treat
Cooey's brief as an application for a certificate of appealability.
After expressing our tentative view that Cooey had not made a
“substantial showing of the denial of a constitutional right” as
required by 28 U.S.C. § 2253(c)(2) & (3) with respect to any of the
issues raised, we directed Cooey to show cause why we should not deny
the application for a certificate. Attached to our order was an appendix
summarizing our tentative view as to each issue. The parties filed their
respective briefs responding to the show cause order, and *887 the
matter was argued on January 30, 2002.
* * *
Cooey argues that the Ohio Supreme Court's reweighing
of the aggravating circumstances and mitigating factors leading to his
death sentence was erroneous.FN1
FN1. Under Ohio Rev.Code § 2929.05(A), the Ohio
appellate courts are required to “independently weigh” the aggravating
circumstances against the mitigating factors:The court of appeals and
the supreme court shall review the judgment in the case and the sentence
of death imposed by the court or panel of three judges in the same
manner that they review other criminal cases, except that they shall
review and independently weigh all of the facts and other evidence
disclosed in the record in the case and consider the offense and the
offender to determine whether the aggravating circumstances the offender
was found guilty of committing outweigh the mitigating factors in the
case, and whether the sentence of death is appropriate. Ohio Rev.Code §
2929.05(A) (emphasis added).
In Clemons v. Mississippi, 494 U.S. 738, 110 S.Ct.
1441, 108 L.Ed.2d 725 (1990), the Supreme Court confirmed that the
federal Constitution does not prohibit reweighing or harmless analysis
as a cure for weighing errors. Although not required to do so, once it
elects to reweigh, the state appellate court must “give each defendant
an individualized and reliable sentencing determination based on the
defendant's circumstances, his background and crime.” Id. at 749, 110
The three-judge panel convicted Cooey of four
aggravated murder counts, two counts relating to victim Wendy Offredo,
and two relating to victim Dawn McCreery. Each contained three capital
specifications. For each victim, Cooey was charged with purposely
killing her with prior calculation and design (Ohio Rev.Code §
2903.01(A)), and with purposely killing her in the course of an
enumerated felony, being kidnapping, rape, and aggravated robbery (Ohio
Rev.Code § 2903.01(B)). The same three capital specifications were
attached to each count: (1) the murder was committed to escape detection
for other crimes (Ohio Rev.Code § 2929.04(A)(3)); (2) the murder was
part of a course of conduct that involved the purposeful killing of two
or more persons (Ohio Rev.Code § 2929.04(A)(5)); and (3) the murder was
committed while committing or attempting to commit or fleeing
immediately after committing or attempting to commit rape and/or
kidnapping and/or aggravated robbery and Cooey was a principal offender
in the commission of the aggravated murder and/or the aggravated murder
was committed with prior calculation and design. (Ohio Rev.Code §
The three-judge panel found Cooey guilty of all
counts and all specifications. However, before sentencing, the court
made the State elect which count for each victim the court would
sentence upon. The State elected the felony murder count for each victim.
The three-judge panel also found that the “course of conduct”
specification for each count was duplicative, so it considered only one
In its review, the Ohio Supreme Court initially
determined that the trial court had erred in several respects in its
weighing. First, the Ohio Supreme Court concluded that the trial court
erred in combining and collectively considering the aggravating
circumstances of both murders:
Cooey argues that the trial court erred in combining
the aggravating circumstances related to both murders, and weighing all
of them collectively against the mitigating factors. We agree. As Cooey
states, each murder was a separate offense subject to a separate penalty.
By adding together the aggravating circumstances of both murders in the
penalty phase, the trial court denied Cooey that “consideration of ...
the circumstances of the particular offense ...” that is “a
constitutionally indispensable part of the process of inflicting the
penalty of death.” (Emphasis added.) Woodson v. North Carolina (1976),
428 U.S. 280, 96 S.Ct. 2978, 2991, 49 L.Ed.2d 944 (plurality opinion).
Therefore, when a capital defendant is convicted of
more than one count of aggravated murder, the penalty for each
individual count must be assessed separately. Only the aggravating
circumstances related to a given count may be considered in assessing
the penalty for that count.
We do not think it is clear that the trial court's
error determined the result. Indeed, we conclude that the aggravating
circumstances of each murder, weighed separately, outweigh the
mitigating factors. Thus, although the trial court erred, its error was
not plain error, and therefore not reversible error in light of Cooey's
failure to raise it in the court of appeals. State v. Cooey, 544 N.E.2d
The Ohio Supreme Court also determined that certain
specifications should have been merged: [Cooey] also argues that, under
the facts in this case, the specifications should *890 have been merged
because they arose from the same acts and were committed with the same
animus. See Jenkins, supra, ... syllabus. We agree. The specifications
for which Cooey was trying to escape accountability when he killed Wendy
and Dawn (R.C. 2929.04[A] ) are the same as those that support his
convictions of the felony murder specifications. (R.C. 2929.04[A] ).
Thus, the “escaping accountability” specifications lack “a significance
independent of the other” specifications. Logan, supra, .... Cooey did
not raise this error in the court of appeals, and we find it far from
clear that it affected the panel's verdict. We therefore cannot hold it
plain error. State v. Cooey, 544 N.E.2d at 917.
The Ohio Supreme Court also found that the panel
should not have considered mitigating factors not raised by Cooey:
Cooey correctly asserts that the trial court erred by
considering all of the mitigating factors set forth in R.C. 2929.04(B)
even though Cooey did not raise some of them. See State v. DePew, ....
However, the sentencing opinion lists what the court understood to be
the aggravating circumstances, and the absence of mitigating factors is
not among them. Cf. State v. Broom, supra. ... We conclude that the
absence of mitigating factors was not impermissibly transformed into an
aggravating circumstance. Id. The Ohio Supreme Court further held that
the trial court had misconstrued the standard for legal insanity under
Ohio Rev.Code § 2929.04(B):
Cooey argues that the trial court and the court of
appeals misapplied the standard for legal insanity to the mitigating
factor created by R.C. 2929.04(B)(3). We agree. The mitigating factor
existed if Cooey “... lacked substantial capacity to appreciate the
criminality of his conduct or to conform his conduct to the requirements
of the law....” The question was not, as the trial court thought,
whether Cooey completely lacked capacity to do so. Cf. Lawrence, supra....
... Of course, under either standard, it must be
demonstrated that such lack of capacity resulted from a mental disease
or defect.... Since the trial court found that Cooey did not have a
mental disease or defect, this mitigating factor would not have applied
even under the correct standard. Id. at 918.
The Ohio Supreme Court then turned to the question of
whether the aggravating circumstances outweighed the mitigating factors,
“as part of our statutorily mandated review.” Specifically, the Ohio
Supreme Court considered evidence relating to Cooey's physical and
mental history. First, it noted the testimony of Dr. James W. Siddall, a
clinical psychologist, who had interviewed Cooey and performed a
standard battery of psychological tests on him. Dr. Siddall determined
that Cooey exhibited a “mental disorder” consisting of a “conduct
disorder” and a pattern of substance abuse. Id. at 919.
The Ohio Supreme Court noted that Siddall “testified
that a ‘mental disorder’ is not necessarily a ‘mental illness,’ but that
it probably ‘would affect judgment as well as behavioral control.’ ” Id.
The Court also observed that Siddall testified that Cooey's history of
child abuse was significant, a fact which Cooey's mother further
attested to. Id. The Court ultimately concluded that Cooey's mental
disorder was entitled to “little legal weight,” because his mental
disorder “consisted of the ingestion of drugs in combination with his
‘conduct disorder,’ ” and Dr. Siddall's “definition of ‘conduct disorder’
as a pattern of violating other people's rights could apply to virtually
every criminal.” Id.
The Ohio Supreme Court also took into account Cooey's
youth, subject to his military status, and his lack of previous criminal
convictions: Cooey's youth is entitled to some weight, but his military
status makes it reasonable to expect more maturity from him than one
might otherwise expect of a nineteen-year-old. His history as a severely
abused child is certainly relevant for whatever it may have contributed
to his mental problems. Although the record shows that Cooey has had
contact with juvenile authorities, the record does not demonstrate any
previous criminal convictions or delinquency adjudications. This factor
is entitled to some weight in mitigation. Id.
Nevertheless, the Ohio Supreme Court ultimately
concluded as follows: These factors tend to suggest that Cooey may have
been less responsible for his acts than were most people. However, they
are outweighed beyond any reasonable doubt by the aggravating
circumstances of rape and kidnapping. Cooey used deceit to lure Wendy
and Dawn into his car, drove them to a deserted area, then took what he
wanted from them by force. He beat them repeatedly with a nightstick,
then tried to make sure Wendy was dead by strangling her.
We conclude that the properly admitted evidence
overwhelmingly proves that the aggravating circumstances outweigh,
beyond a reasonable doubt, the mitigating factors. Id.
As the foregoing illustrates, the Ohio Supreme Court
followed the dictates of Clemons in that it gave individualized
consideration to Cooey's circumstances, his background, and the crime.
As the district court ruled:
In this case, the Supreme Court of Ohio committed no
such error. First, in its decision, the Court gave no consideration to
those factors which the trial court had erroneously included in its
analysis. Id. at 41-42, 544 N.E.2d 895, 46 Ohio St.3d 20, 544 N.E.2d
895. Second, it did not reach its decision merely on the existence of a
single aggravating circumstance. Instead, it noted the specific nature
of the crimes at issue, the use of deceit in committing those crimes,
and the amount of force employed by the perpetrator. Id. (“[The
mitigating factors] are outweighed beyond any reasonable doubt by the
aggravating circumstances of rape and kidnaping. Cooey used deceit to
lure Wendy and Dawn into his car, drove them to a deserted area, then
took what he wanted from them by force. He beat them repeatedly with a
nightstick, then tried to make sure Wendy was dead by strangling her.”).
Finally, the Court provided a thorough discussion of and gave careful
consideration to all mitigating factors relevant to Cooey's sentence. In
sum, the Ohio Supreme Court acted properly when, pursuant to § 2929.05,
it elected to reweigh the aggravating circumstances and mitigating
factors of this case. Cooey v. Anderson, 988 F.Supp. at 1097-98 (footnote
Thus, it is simply baseless to suggest, as Cooey does
in his brief at 46-47, that the Ohio Supreme Court's reweighing was
merely conclusory and insufficient under constitutional standards. The
Ohio Supreme Court's decision was not “ ‘contrary to,’ nor did it
involve[ ] an unreasonable application of, clearly established Federal
law.” The Ohio Supreme Court was properly allowed to reweigh under
Clemons, and considered all the factors Clemons set out as part of the
reweighing analysis. And even if we thought that the Ohio Supreme
Court's application of Clemons was incorrect, which we do not, it was
certainly not an *892 unreasonable application of Clemons. Nor can it be
said that the Ohio Supreme Court's holding was based on an unreasonable
determination of the facts in light of the evidence presented in the
state proceedings. See 28 U.S.C. § 2254(d)(1) & (2). In short, the
“reweighing issue” provides no basis upon which to grant the writ.
B. Ineffective Assistance of Trial Counsel
Cooey also argues that his trial counsel were
ineffective for various reasons. To show that counsel was
constitutionally ineffective, a petitioner must demonstrate that
counsel's performance was deficient in that it fell below an objective
standard of reasonableness, and also that counsel's deficiencies
prejudiced his defense. Strickland v. Washington, 466 U.S. 668, 687, 104
S.Ct. 2052, 80 L.Ed.2d 674 (1984). In other words, 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.” Id. at 694, 104 S.Ct. 2052.
In Lockhart v. Fretwell, 506 U.S. 364, 113 S.Ct. 838,
122 L.Ed.2d 180 (1993), the Supreme Court explained that “[t]he
prejudice component of the Strickland test ... focuses on the question
whether counsel's deficient performance renders the result of the trial
unreliable or the proceeding fundamentally unfair.” Id. at 372, 113 S.Ct.
838. The Court further explained that “unreliability or unfairness does
not result if the ineffectiveness of counsel does not deprive the
defendant of any substantive or procedural right to which the law
entitles him.” Id.
1. Impermissible Cumulation of Aggravating Factors
First, Cooey claims that his trial counsel failed to
prevent or redress the impermissible cumulation of aggravating factors
at the sentencing phase. Specifically, Cooey asserts that trial counsel
were constitutionally ineffective for failing to object to the trial
court's separate weighing of duplicative aggravating factors, in
contravention of the clear mandate of the Ohio Supreme Court in State v.
Jenkins, 15 Ohio St.3d 164, 473 N.E.2d 264 (1984) (syllabus, ¶ 5).
The Ohio Supreme Court acknowledged the underlying
weighing error, but concluded that “Cooey did not raise this error in
the court of appeals, and we find it far from clear that it affected the
panel's verdict. We therefore cannot hold it plain error.” State v.
Cooey, 544 N.E.2d at 917. As to Cooey's assigned error of ineffective
assistance of counsel based on counsel's failure to object, the Ohio
Court of Appeals held:
The Ohio Supreme Court reviewed this claim and found
that the failure of the trial court to merge the aggravating
circumstances at issue was not plain error. This Court concludes that
there also was not a ‘reasonable probability’ that defendant was
prejudiced by his trial lawyers' failure in regard to the merger of
aggravating circumstances. State v. Cooey, 1994 WL 201009, at * 15.
As the district court held, “the evidence confirming
the aggravating circumstances of Cooey's offenses is overwhelming.”
Cooey v. Anderson, 988 F.Supp. at 1088. More importantly, the Ohio
Supreme Court corrected the trial court's error in failing to merge the
aggravating circumstances, and upon independent reweighing, still
concluded that “the properly admitted evidence overwhelmingly proves
that the aggravating circumstances outweigh, beyond*893 a reasonable
doubt, the mitigating factors.” State v. Cooey, 544 N.E.2d at 919.
The Ohio Court of Appeals ruled on Cooey's
postconviction petition by holding that there was not a “reasonable
probability” that Cooey was prejudiced by his trial lawyers' failure to
argue that the aggravating circumstances should not have been merged.
Cooey has not contended, and cannot establish, how this conclusion is at
odds with Strickland. See 28 U.S.C. § 2254(d).
2. Other Failures
Cooey also alleges that trial counsel were deficient
for several other reasons, which we address in order.
a. Failure to Object to Constitutionally Infirm
Cooey claims that counsel were ineffective regarding
jury waiver, selection of the three-judge panel, introduction of
gruesome slides, and the indictment.
i. Jury Waiver Cooey claims that his trial counsel
failed to insure that he knew that he was waiving his fundamental right
to a jury trial. However, as the Ohio Court of Appeals found, Cooey
failed to present any evidence supporting his assertion. State v. Cooey,
1994 WL 201009, at *13, *14. See also State v. Kapper, 5 Ohio St.3d 36,
448 N.E.2d 823, 826 (1983). In other words, the court held implicitly
that Cooey defaulted this claim in the state postconviction trial
proceeding. By failing to submit evidence, Cooey barred himself from
developing the claim further, and is not now entitled to an evidentiary
hearing. See 28 U.S.C. § 2254(e)(2)(A)(ii).
The court also held that Cooey “failed to show that
his trial lawyers' performance fell below an objective standard of
reasonable representation.” State v. Cooey, 1994 WL 201009, at *14.
Cooey makes no attempt to show how this ruling is contrary to, or an
unreasonable application of, Supreme Court precedent. It is meritless.
ii. Three-Judge Panel
Cooey complains that trial counsel should have
objected to the method of empaneling the three judges. The Ohio Court of
Appeals held: Defendant has failed to indicate how the makeup of the
three judge panel had an adverse impact on him. Accordingly, defendant
did not demonstrate a “reasonable probability” that he was prejudiced by
his trial lawyers' alleged failure. State v. Cooey, 1994 WL 201009, at
*12. Again, the state appellate court's finding that Cooey had not
demonstrated prejudice under Strickland ' s second prong was reasonable.
This claim is utterly without merit.
iii. Gruesome Slides
The Ohio Court of Appeals held that: The Ohio Supreme
Court ruled that, although the photographs were gruesome, they were
highly probative. Cooey II, at 36, 544 N.E.2d 895. The Supreme Court
further ruled that the trial court committed harmless error in admitting
four of the photographs that were duplicative. Id. There is no
“reasonable probability” that defendant was prejudiced by his trial
lawyers' failure to object to the admissibility of the photographs at
issue. Id. at *14.
Again, Cooey has not shown how the Ohio Court of
Appeals' decision is an unreasonable application of Strickland's
prejudice prong. More fundamentally, *894 this fails to state a
constitutional claim, see Gerlaugh v. Stewart, 129 F.3d 1027, 1032 (9th
Cir.1997) (holding that the claim that a gruesome photo of decedent was
erroneously admitted did not raise “the spectre of fundamental fairness
such as to violate federal due process of law”), and therefore is not
cognizable on habeas.
iv. Unsigned Indictment
Finally, Cooey argues that trial counsel failed to
object to the use of an unsigned indictment against him. According to
Cooey, the indictment was invalid because it was not signed by the
foreman of the jury. First of all, the Ohio Supreme Court found that,
although it was not originally part of the appellate record, the signed
indictment was subsequently sent to the high court by the trial court.
State v. Cooey, 544 N.E.2d at 909. Thus, “that it was journalized at all
requires us to accept it as genuine and as having been filed at the time
indicated by the date stamp, for the journal of a court of record
imports absolute verity absent clear and convincing evidence to the
contrary.” Id. at 909-10. Then, the Ohio Court of Appeals found that:
The Ohio Supreme Court held that there was a signed
indictment filed in the trial court in this case. Cooey II, at 30, 544
N.E.2d 895. Accordingly, there was not a “reasonable probability” that
defendant was harmed by his trial lawyers' failure to raise this claim.
State v. Cooey, 1994 WL 201009, at *14. As an initial matter, the Ohio
Supreme Court's fact finding is entitled to deference. Furthermore,
Cooey has not demonstrated how the Ohio Court of Appeals' ruling is an
unreasonable application of Strickland's prejudice component.
b. Presentence Report
Cooey complains that his trial lawyers were
ineffective because they requested a presentence report. According to
Cooey, the request was problematic because the presentence report
contained the police captain's sentence recommendation as well as prior
uncharged criminal misconduct. The Ohio Court of Appeals ruled to the
contrary. Id. at *13. The Ohio court reasonably applied Strickland.
Indeed, Cooey does not even make a stab at showing how this decision is
contrary to federal law.
c. Preparation for Mitigation
Cooey maintains that counsel were ineffective in
failing to prepare for mitigation. More precisely, Cooey complains that
counsel requested a presentence report a mere ten days prior to the
mitigation hearing. This claim was not raised in the state courts and is
therefore defaulted. Even if we reviewed the claim, and even if this
alleged deficiency constituted ineffective assistance, Cooey has not
explained how he suffered actual prejudice. In short, Cooey has not
shown a violation of Strickland.
Cooey asserts that counsel should have contacted
social workers to assist in presenting mitigating evidence, especially
since the strongest factors in favor of mitigation were Cooey's youth
and substance abuse. The Ohio Court of Appeals held that Cooey “failed
to proffer any exculpatory evidence in support of his petition that was
not presented at defendant's trial and arguably would have been if the
trial court had appointed a social worker to assist defendant.
Accordingly, he did not demonstrate a ‘reasonable probability’ that he
was prejudiced by his trial lawyers' failure to request assistance of a
social worker.” Id. at *14.
Cooey has not shown that the Ohio Court of Appeals's
ruling is contrary to, or an unreasonable application of Strickland.
Third, Cooey contends that trial counsel failed to
obtain a pharmacologist and/or toxicologist to assist them in preparing
Cooey's case pursuant to Ohio Rev.Code § 2929.024. The Ohio Court of
Appeals ruled as follows:
Trial counsel failed to request the appointment of a
pharmacologist and/or toxicologist to give opinions as to the effect of
chemicals in defendant's system. The Supreme Court ruled on direct
review that expert testimony about defendant's alleged diminished
capacity was properly excluded from the guilt/innocence phase of his
trial. Cooey II, at 26, 544 N.E.2d 895. Although the psychologist whose
affidavit was attached to defendant's petition to vacate or set aside
sentence opined that a pharmacologist and/or toxicologist could have
presented the three judge panel “ ‘a more detailed and complete
understanding of the impact’ of drugs on defendant's cognitive and
emotional functioning,” neither the psychologist nor defendant's counsel
has explained how that “more detailed and complete understanding” would
have been exculpatory. Accordingly, defendant did not demonstrate a
“reasonable probability” that he was prejudiced during either phase of
his trial by his trial lawyers' alleged failure. Id. at *11. Again,
Cooey has not shown that the Ohio Court of Appeals unreasonably applied
d. Failure to Object to Prosecutorial Misconduct
The Ohio Court of Appeals ruled as follows: The
properly admitted evidence against defendant was so overwhelming that,
to the extent defendant's trial lawyers failed to object to irrelevant
evidence or prosecutorial misconduct, there was not a “reasonable
probability” that defendant was prejudiced by that failure. Id. at *13.
Cooey has simply not demonstrated how this ruling is an unreasonable
application of Strickland.
For all of the foregoing reasons articulated in this
opinion and accompanying unpublished appendix, we conclude that Cooey is
not entitled to habeas relief. SO ORDERED.