The Supreme Court of Ohio ruled today that a hearing is required to determine if a teen convicted for a 2001 rape received ineffective counsel because a witness identification expert was not called to testify.

In a 4-3 decision, the Supreme Court ruled Chaz Bunch, who was one of four young men convicted of raping a Youngstown woman, is entitled to an evidentiary hearing. Bunch claimed that the outcome of his trial could have been different had his trial attorney called an expert witness to challenge the victim’s delayed identification of Bunch as one of her assailants.

In the Court’s lead opinion, Justice Michael P. Donnelly stated the trial court wrongly denied Bunch’s postconviction relief petition without conducting a hearing where Bunch could explain how the lack of testimony by any expert on witness identification led to his conviction. While ordering the Mahoning County Common Pleas Court to conduct a hearing, Justice Donnelly stated the Supreme Court expressed no opinion on whether Bunch is entitled to a new trial.

Justices Melody Stewart and Jennifer Brunner joined Justice Donnelly’s opinion. Tenth District Court of Appeals Judge Laurel Beatty Blunt, sitting for Justice Patrick F. Fischer, also joined Justice Donnelly’s opinion.

In a dissenting opinion, Justice Sharon L. Kennedy wrote that the victim’s testimony, the corroborating evidence, the testimony of one of Bunch’s codefendants, and the record as a whole support the trial court’s decision to reject the petition without a hearing.

Justice R. Patrick DeWine joined Justice Kennedy’s opinion.

Teen Identified After Appearing in Newspaper Photo
In August 2001, a woman identified in court records as “M.K.” was on her way to work in Youngstown when she was kidnapped, robbed, and repeatedly raped by a group of young men. She was able to identify the license plate number of the attackers’ car. About an hour later, a police officer spotted the car at a gas station. As the car left the station, the officer followed the car and apprehended 15-year-old Brandon Moore, 18-year-old Andre Bundy, and 21-year-old Jamar Callier. A fourth person fled on foot, and those in the car identified him as “Shorty Mack.”

Video footage from the gas station identified a young man meeting Bunch’s description. Within a mile of the gas station, another police officer spotted a young man hurrying down the street on foot. He identified himself to the officer as Chaz Bunch. Because the officer was on the lookout for a Shorty Mack, the officer did not detain him or write a report about the interaction.

Three days later, the officer was informed that Bunch was the suspected person who fled from police on the night of the attack. Bunch was arrested a week later.

The victim, M.K., reviewed a photo line up of suspects and quickly identified Moore, Bundy, and Callier, but not the fourth suspect. She stated Bunch might be the fourth attacker, but could not identify him by a photo of his face. She said she needed to see a full body photo, explaining he was in the backseat, and she “needed to see, like, his hands and roundness of his body.” Police did not provide any additional photos of Bunch.

About a week after his arrest, a photo of Bunch appeared in a local newspaper with an article identifying him as one of the suspects in the attack. When M.K.’s boyfriend showed her the article, she said she was certain Bunch was the fourth attacker.

Teens Tried Together; Adult Suspect Testifies Against Them 
Fingerprints and DNA samples collected from M.K., her car, and other items did not provide any results attributable to Bunch. Samples from a rape kit and M.K.’s clothes detected Moore’s DNA.

The case against the two minors, Bunch, and Moore was transferred from juvenile court to adult court. They were tried jointly with Bundy. Callier pleaded guilty prior to trial and agreed to testify against the teens.

Bunch unsuccessfully contested the validity of M.K.’s identification in pretrial proceedings. His first attorney received court approval to hire an expert witness regarding eyewitness identification. The attorney soon withdrew from representing Bunch because of a breakdown in the attorney-client relationship.

The second attorney did not hire any experts for Bunch’s trial. No witness identification experts testified for either the prosecution or Bunch.

Bunch’s attorney cross-examined M.K. and hinted at the time of the trial, her memory may have faded, and she might have misidentified Bunch. He asked her to confirm the process of how she identified Bunch, noting her initial uncertainty and subsequent certainty.

M.K. reaffirmed her identification of Bunch. Callier also testified that Bunch was the fourth attacker. Callier faced 76 years or more in prison and agreed to testify against the others in exchange for reduced charges  and a recommended seven-year prison sentence. In October 2002, a jury found Bunch and the others guilty of several of the charges. Bunch was sentenced to 115 years in prison. His sentence was later reduced to 49 years.

Teen Seeks New Trial Based on Ineffective Assistance
Bunch unsuccessfully attempted to appeal his conviction. In June 2003, he filed a postconviction relief petition claiming ineffective assistance of counsel. The Mahoning County Prosecutor’s Office did not respond to his petition, and the petition remained unresolved on the court’s docket for more than a decade.

Because the prosecution never responded to his 2003 petition, Bunch was able to amend it in 2017, and bolster his claim of ineffective counsel. He noted that shortly after his trial, the Supreme Court issued a stayed suspension from the practice of law to his attorney for neglecting a criminal matter in another case. After being disciplined multiple times, Bunch’s attorney was indefinitely suspended by the Court in 2016 for neglecting client matters.

Along with noting a pattern of neglect by his attorney, Bunch also provided the trial court with a statement from Scott Gronlund, an expert in eyewitness identification. Gronlund stated that M.K.’s identification was not likely to be accurate because she could not initially identify Bunch. When M.K. identified Bunch only after seeing a newspaper article describing him as a suspect, Gronlund attributed it to a phenomenon called “unconscious transference.” He stated that her identification was more likely a product of suggestion than actual recognition of Bunch from the crime scene.

The trial court rejected Bunch’s ineffective assistance claim, noting that Callier also identified Bunch and that his trial attorney chose the strategy of cross-examining M.K. rather than calling an expert witness.

Bunch appealed to the Seventh District Court of Appeals, which affirmed the trial court’s rejection of the ineffective counsel claim.

Bunch appealed to the Supreme Court, which agreed to hear the case.

Trial Court Used Wrong Standard, Supreme Court Ruled
Justice Donnelly explained there is a two-part process when a defendant claims a trial attorney was ineffective. A claim of ineffective assistance required Bunch to show that his attorney’s performance was deficient and, had the attorney not performed deficiently, the outcome of the trial may have been different.

In a postconviction relief petition, the trial court is initially supposed to consider the record from the original trial and all the evidence produced after the trial to support the claim of ineffective assistance. If the written documentation does not disprove the defendant’s claim, the trial court is to “proceed to a prompt hearing on the issues.”

The Court today ruled that the trial court used the wrong standard by ruling on the merits of Bunch’s claim without conducting a hearing. Instead, the trial court first had to assess whether Bunch’s factual allegations, “if true,” would support his claim that his attorney was ineffective.

“Bunch asserts that because eyewitness identification was the core of the state’s case against him, the use of an expert regarding eyewitness identification was the only reasonable strategy to support his defense,” the opinion stated.

It is often acceptable for a defense attorney to get expert testimony to the jury by cross-examining the prosecution’s expert witness instead of using a separate expert, but the prosecution did not use an expert witness on eyewitness identification in Bunch’s case, the opinion noted

Cross-examination of the victim was not a reasonable substitute for expert testimony, the opinion  stated, because it would not help the jury understand the science behind eyewitness identification and “unconscious transference.”  It was also “questionable” to use cross-examination to “delegitimize M.K.’s account of her own horrifying experience” instead of trying to establish misidentification through a neutral expert witness, the Court wrote.

The Court concluded that the trial court was required to assess Bunch’s evidence in a hearing before ruling on the petition, but it expressed no opinion on how the trial court should rule after its hearing.

“Our focus in this decision is not on the merits of Bunch’s claim; instead, it is on the adequacy of the process leading up to a decision on Bunch’s claim,” the opinion stated. “The postconviction-petition process ensures the integrity of convictions that were correctly entered in addition to ferreting out wrongful convictions. A wrongful conviction achieves justice for no one, and a confirmation that a petitioner was rightfully convicted only adds to our confidence in the system.”

The Court reversed the Seventh District’s ruling and directed the trial court to conduct the hearing.

Judge Properly Considered Petition, Dissent Maintained
In her dissent, Justice Kennedy wrote that the trial court did not err in determining that Bunch was not entitled to a hearing with respect to his claim of ineffective assistance of counsel. The dissent stated that “[t]he victim’s testimony, the corroborating evidence, the testimony of one of Bunch’s codefendants, and the record as a whole, including the affidavit signed by Bunch’s expert, demonstrate that Bunch did not support his petition with sufficient operative facts to establish substantive grounds for relief.” 

Justice Kennedy wrote that in State v. Calhoun (1999), the Court stated that “it is not unreasonable to require the defendant to show in his petition for postconviction relief that such errors resulted in prejudice before a hearing is scheduled.” She wrote that to prove prejudice, Bunch would have to demonstrate “a reasonable probability that but for counsel’s alleged errors — here, the failure to hire an eyewitness-identification expert — the proceeding’s result would have been different.” 

Pointing to the victim’s testimony, Callier’s identification of Bunch, and the other evidence, including the video footage of Bunch at the gas station with the other assailants close in  time to the attack, Justice Kennedy concluded that there was not a reasonable probability that Bunch’s trial would have ended differently had his attorney hired an eyewitness identification expert.

2021-0579. State v. Bunch, Slip Opinion No. 2022-Ohio-4723.

View oral argument video of this case.

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