Landrum:  Recommendation of habeas writ for new trial on IAC

Larry Landrum and Grant Swackhammer entered the apartment of Pat White for purposes of burglarizing his apartment.  Mr. White returned home during the course of the burglary and was killed from a series of blows to the back of his head and cuts to his throat.  The medical testimony at trial indicated that the cuts to the throat were fatal, though the blows to the head could be fatal.  It has never been in dispute that Swackhammer and Landrum were the two intruders.  Swackhammer, in his initial statement to the police, confessed to hitting the decedent in the back of the head with a railroad bolt.  He claimed, however, that Landrum cut Mr. White’s throat.  Landrum testified otherwise at trial.  Swackhammer, who was a juvenile at the time of the offense, refused to testify at Landrum’s trial, citing the Fifth Amendment.  Swackhammer, because of his juvenile status, was released from detention on his twenty-first birthday.

In the penalty phase of Landrum’s trial, defense counsel attempted to call Randy Coffenberger, who would have testified that Swackhammer had confessed to him to cutting the decedent’s throat.  The trial court barred the testimony, claiming that it was hearsay.  The prosecutor, when objecting to Coffenberger’s testimony, stated, “I’m surprised that you [defense counsel] didn’t put this on in the guilt phase.”  The Ohio Supreme Court subsequently ruled that the trial court erred when it precluded the admission of the testimony in the mitigation phase, but that the error was harmless.

Landrum, in his habeas petition, consistent with the prosecutor’s statement at trial, raised as part of his ineffectiveness claim that trial counsel did not call Coffenberger to testify in the trial phase.  Federal Chief Magistrate Judge Merz determined that counsel was indeed ineffective for failing to call Coffenberger in the trial phase: “Trial counsel offered no strategic reason for not offering Coffenberger’s testimony and none can be postulated by this Court.  Instead, their stated reason was their belief that the testimony was excludable hearsay.  That analysis was deficient performance on their part, given the law cited by the Ohio Supreme Court in finding that exclusion was error…[w]hen the habeas court is in grave doubt whether a trial error of federal constitutional law had a substantial and injurious effect or influence in determining the verdict, the error is not harmless and the writ must be granted.”  Landrum v. Anderson. No. 1:96–cv-00641 (S.D. Ohio November 1, 2005,  Report and Recommendation, p. 74).