State v. Hale

1

2023-Ohio-3894

STATE OF OHIO, Plaintiff-Appellee, v. DELANO HALE, Defendant-Appellant.

No. 112163

Court of Appeals of Ohio, Eighth District, Cuyahoga

October 26, 2023

Criminal Appeal from the Cuyahoga County Court of Common Pleas Case No. CR-04-454857-A

Michael C. O'Malley, Cuyahoga County Prosecuting Attorney, and Sarah E. Hutnik, Assistant Prosecuting Attorney, for appellee.

Law Office of Timothy Farrell Sweeney and Timothy F. Sweeney, for appellant.

ON RECONSIDERATION^[1]

JOURNAL ENTRY AND OPINION

EILEEN T. GALLAGHER, JUDGE

{¶ 1} Defendant-appellant, Delano Hale ("Hale"), appeals from the trial court's denial of his "motion for leave to file a delayed motion for new trial, with memorandum in support and all exhibits." He raises the following assignments of error for review:

1. The trial court abused its discretion in denying appellant leave to file a delayed motion for new trial.

2. The trial court abused its discretion in failing to address appellant's petition for postconviction relief.

{¶ 2} After careful review of the record and relevant case law, we affirm in part, reverse in part, and remand the matter to the trial court for further proceedings consistent with this opinion.

I. Procedural and Factual History

A. Hale's Conviction and Direct Appeal

{¶ 3} On July 28, 2004, Hale was indicted for aggravated murder, with felony murder death specifications, aggravated robbery, tampering with evidence, and having a weapon while under disability, all in connection with the death of Douglas Green ("Green"). The relevant facts supporting the indictment are as follows:

In 2003, Hale was released from prison after serving 12 years of a sentence for aggravated robbery and carrying a concealed weapon. At first, he lived with his father, but left in February 2004. That same month, he obtained a telemarketing job with a base pay of $ 7.64 per hour. On March 9, 2004, Hale told his sister Lashayla that he had a gun.

By June 2004, Hale was in financial difficulty. His bank account had a negative balance during all of June 2004. On June 8, he moved into Room 260 of the Lake Erie Lodge, a motel in Euclid. He initially rented the room for a week. He renewed his stay for another week on June 15, renewed for a single night on June 22, and checked out on June 23.

On June 23, 2004, an employee of the lodge found a human corpse wrapped in plastic garbage bags in Room 231, a vacant room being used for storage. He notified the management, who summoned the police. The body was identified as that of Douglas Green, a local voice teacher, professional singer, and music producer.

An autopsy disclosed that Green had been shot four times in the right side of the head. Two shots went into Green's right ear, one entered his skull directly behind the ear, and one entered about two and one-half inches behind the ear. Three of the four shots entered Green's brain. Any one of these three wounds would have immediately stopped any voluntary movement on Green's part. Three of the wounds were contact wounds, meaning that the shots were fired from no more than an inch away. Gunshot residue was found on Green's right hand, but not his left, an indication that Green's right hand was in close proximity to the gun when it was fired.

Green's bank statement shows that at 12:07 p.m. on June 22, 2004, a person using Green's Visa card made a $ 55.15 purchase at a Giant Eagle store in Willoughby Hills. Giant Eagle records show that the purchaser bought garbage bags, cleaning supplies, beer, and cigarettes in that transaction. Green did not smoke or drink beer. The purchaser also used a Giant Eagle discount card registered to Hale's sister and deceased mother.

Hale's friend James Hull saw Hale driving a[n] Explorer SUV on two occasions after Green's murder, including on June 23, 2004, when Hull helped Hale move out of the lodge. Hull later identified photographs of Green's SUV as the one Hale had been driving.

On June 28, 2004, at 2:30 p.m., Detective Sergeant Robert Pestak of the Euclid police found Hale inside Green's Ford Explorer SUV, parked near Hale's workplace in Cleveland. Pestak, supported by Cleveland police units, arrested Hale.

When told that he was being arrested for Green's murder, Hale said, "I didn't kill anybody." Sergeant Pestak administered Miranda warnings to Hale. While being led to a cruiser, Hale again said, "I didn't kill anybody."

Hale was taken to the Euclid police station and placed in a cell. After approximately five hours, Hale was removed from the cell and brought to the detective bureau. There, Detective Sergeant James Baird [("Det. Baird")] completed a personal-information form on Hale and presented it to Hale for his signature. Hale signed the form using his left hand, but Baird noted that Hale had difficulty writing with that hand.

Baird then administered Miranda warnings to Hale. Hale signed a Miranda waiver form, and this time, Hale used his right hand. Baird proceeded to interrogate Hale. During the interrogation, Baird told Hale that Green "was possibly bisexual" and that "if this was a case of self-defense, then that would be understandable if he felt that Mr. Green had attacked him."

Hale wrote out and signed a four-page statement. In his statement, Hale claimed that he had met Green in May 2004 when Green, identifying himself as a record producer, asked Hale whether he had considered singing professionally and gave Hale his cell-phone number. According to Hale, he later called Green, and Green agreed to go to Hale's motel room to hear him sing.

According to Hale, they had arranged to meet at the Underground Railroad, a bar near the lodge. Hale claimed that he and Green had met at the Underground Railroad on Monday, June 21, 2004. (However, according to the owner of the Underground Railroad, that establishment was closed on Mondays.) They then went to Hale's room. According to Hale, Green had a small gun in his shoulder bag and displayed it to Hale as they entered the room.

Hale claimed that he sang for Green, then went to the bathroom. Hale claimed that when he returned, he found Green lying on the bed, nude. Hale told Green to leave. According to Hale, Green grabbed Hale's wrists and "laid his head on [Hale's] crotch" while making "slurping" noises.

Hale claimed that he then freed his right hand, reached into Green's bag, pulled out the gun, held it to Green's head, and cocked it.

According to Hale, Green said, "It isn't loaded, so why don't you give me some of that dick."

Hale fired. Green "reeled back," but still gripped Hale's left wrist, according to Hale. Hale cocked the gun and fired again. He then backed away from Green, took some bullets from Green's bag, and reloaded. According to Hale, Green then tried to stand up. Hale fired "once or twice" more.

According to Hale, he considered calling an ambulance or the police, but decided not to after he "thought about * * * [his] record" and "the life [he] was attempting to build." Instead, he disposed of the gun and Green's belongings. Then he went out to buy cleaning supplies to clean up Green's blood, using Green's credit card because Hale's "funds were low." The next day, he wrapped Green's body in garbage bags, also purchased with Green's credit card, and dragged the body to a storage room.

State v. Hale, 119 Ohio St.3d 118, 2008-Ohio-3426, 892 N.E.2d 864, ¶ 4-17 ("Hale I ").

{¶ 4} "At trial, the defense claimed that Hale's killing of Green constituted lawful self-defense because Green had attempted to rape Hale." Id. at ¶ 36. Ultimately, the jury rejected Hale's defense and found him guilty of all counts and specifications. On July 18, 2005, the trial court adopted the jury's unanimous recommendation and sentenced Hale to death on the aggravated-murder offense, and an aggregate 13-year prison term on the remaining convictions.

{¶ 5} On July 15, 2008, Hale's conviction and sentence were affirmed by the Ohio Supreme Court. Hale I.

B. Postconviction Proceedings in State Court

{¶ 6} While his direct appeal was pending before the Ohio Supreme Court, Hale filed a petition for postconviction relief, raising 19 grounds for relief. Following a substantial delay, the trial court dismissed Hale's petition on September 24, 2015. This court affirmed the trial court's judgement in State v. Hale, 8th Dist. Cuyahoga No. 103654, 2016-Ohio-5837, ¶ 49 ("Hale II ").

{¶ 7} On January 11, 2017, Hale filed a "combined motion for leave to file a motion for new mitigation trial pursuant to criminal rule 33 and R.C. 2953.21." Hale argued that the Ohio death penalty scheme was unconstitutional. On September 10, 2018, the trial court denied Hale's combined motion. This court affirmed the trial court's judgment in State v. Hale, 8th Dist. Cuyahoga No. 107782, 2019-Ohio-1890 ("Hale III ").

C. Postconviction Proceedings in Federal Court

{¶ 8} In 2008, and again in 2017, Hale filed petitions for writs of certiorari with the U.S. Supreme Court, which were denied. Hale v. Ohio, 556 U.S. 1168, 129 S.Ct. 1906, 173 L.Ed.2d 106 (2009); Hale v. Ohio, 138 S.Ct. 1269, 200 L.Ed.2d 424 (2018).

{¶ 9} On October 10, 2018, Hale filed a petition for a writ of habeas corpus in the Northern District of Ohio Eastern Division, pursuant to 28 U.S.C. 2254. In relevant part, Hale argued that the trial court's jury-selection procedures, which excluded persons convicted of felonies from the jury pool, violated his Sixth Amendment right to a jury from a fair cross-section of his community and his Fourteenth Amendment rights to due process and equal protection. Hale also raised various ineffective assistance of counsel claims based on defense counsel's alleged failure t0 (1) hire experts in forensic pathology, bloodstain pattern analysis, forensic psychiatry, sexual abuse, and trauma; ...