Argued: January 26, 2017
from the United States District Court for the Southern
District of Ohio at Columbus. No. 2:07-cv-00846-Sandra S.
Beckwith, District Judge.
M. Cors, TAFT, STETTINIUS & HOLLISTER, LLP, Cincinnati,
Ohio, for Appellant.
Charles L. Wille, OFFICE OF THE OHIO ATTORNEY GENERAL,
Columbus, Ohio, for Appellee.
M. Cors, TAFT, STETTINIUS & HOLLISTER, LLP, Cincinnati,
Ohio, Jennifer M. Kinsley, KINSLEY LAW OFFICE, Cincinnati,
Ohio, for Appellant.
S. Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus,
Ohio, for Appellee.
Before: BOGGS, CLAY, and ROGERS, Circuit Judges.
case presents a habeas petitioner who has been convicted of
two counts of aggravated murder and sentenced to death. Over
the span of nearly thirty years, petitioner Gerald Hand
married four women. Three of those women would die, two of
them victims of violent, unsolved home invasions. The death
of Hand's fourth and final wife, however, revealed a
different story. At home at the time of her death, Hand
allegedly confronted and shot the intruder, who turned out to
be his friend and employee Lonnie Welch. Subsequent police
investigation uncovered a decades-long plot conducted by Hand
and Welch to murder Hand's wives in order to collect
their lucrative insurance policies. Having been convicted in
state court and having exhausted his state appeals, Hand now
brings this habeas corpus petition. The district court denied
the petition, and for the following reasons, we affirm.
March 1976, Hand's first wife Donna was found strangled
to death in the basement of their home. She had also been
struck on the head. There were no signs of forced entry, but
some items in the house had been disturbed. Hand filed for
and received $67, 386 in life insurance proceeds and $50, 000
from the Ohio Court of Claims victims-compensation fund. Hand
married his second wife, Lori, just over a year later in June
1977. They had one son together, Robert Jr. Like Donna, Lori
was found strangled to death in the basement of their home.
Lori had also been shot twice. Just as with Donna's
murder, police found no signs of forced entry but some items
in the house had been disturbed. Hand also filed for and
received over $126, 000 in life insurance proceeds. Although
Hand was a suspect, neither Donna's nor Lori's murder
was solved. Hand married a third time, but that marriage
ended in divorce.
married his fourth wife, Jill, in 1992. Hand moved into her
house, and they remained married until her death on January
15, 2002. On the night of her death, Hand called police and
reported that a home intruder had shot his wife and that he
had shot the intruder in self-defense. The home intruder was
later identified as Lonnie Welch.
The Supreme Court of Ohio best describes the police
investigation that followed:
Police found Welch's body lying face down on Hand's
neighbor's driveway. Inside Hand's house, Jill's
body was found lying between the living room and the kitchen.
Hand told police that he had shot the intruder but did not
know his identity. He also gave police two .38-caliber
revolvers that he used to shoot him. On the way to the
hospital, Hand saw the intruder's vehicle and told Mark
Schlauder, a paramedic, that "it could have belonged to
somebody that worked for" Hand.
Around 8:00 p.m. on January 15, Detective Dan Otto of the
Delaware County Sheriff's Office interviewed Hand at the
hospital. Hand said that after arriving home, he had dinner
with Jill and then went to the bathroom. Upon exiting, Hand
heard Jill scream, "Gerald, " heard two gunshots,
and saw a man in a red and black flannel shirt at the end of
the hallway. Hand then retrieved two .38 caliber revolvers
from the master bedroom. Hand started down the hallway firing
both guns at the intruder, but had trouble shooting because
the guns were "misfiring" and "missing every
other round." Hand followed the intruder out the front
door and continued firing at him as he ran toward his car,
and then the intruder fell on the neighbor's driveway.
During the interview, Hand repeated that he did not recognize
the gunman, but recognized Welch's car in the driveway.
Hand said he "didn't know [Welch] that well; that he
did odd jobs around the shop; that he was a thief; that he
was a cocaine addict; that he * * * [came] in to the shop
area from time to time." Hand also said that it had been
a year since he had had any contact with Welch, and Welch had
no reason to be at his home that night.
Investigators found no sign of forced entry at Hand's
residence. Blood spatters were found inside the front door
and on the front-door stoop. The top of the storm door was
shattered, and particles of glass extended 13 feet into the
front yard. All the glass fragments were found on top of the
blood spatters. Police also found a black jacket on the front
stoop, a spent bullet and glass fragments on top of the
jacket, and a tooth outside the front door.
According to Agent Gary Wilgus, a crime-scene investigator,
the blood spatters indicated that the victim was bleeding and
"blood was dropping from his body" as he was moving
away from the house. A bloody trail led onto the sidewalk and
through the front yard and ended where Welch was lying in the
driveway. Welch was wearing cloth gloves, and a knit hat with
two eyeholes and a mouth hole was next to his head. Police
also found a .32-caliber revolver on the front lawn.
Inside the house, police found glass fragments and
bloodstains extending two to three feet from the front door
and another tooth just inside the front door. Jill's body
was 12 feet from the front door, her legs pointed towards the
front door, and she was wearing a nightgown. Jill had been
shot in the middle of her forehead. A second bullet deflected
off the floor and was found on the carpet next to Jill's
Investigators found a bullet in the living room ceiling, and
a second bullet was found in the living room window frame.
While investigators could not determine the exact trajectory
of the two bullets, they determined that they most likely
originated from gunshots in the hallway area. No evidence of
gunplay was found elsewhere in the house.
On January 17, 2002, Detective Otto reinterviewed Hand, and
Hand provided a different version of events. Hand stated that
after his wife was shot, he retrieved two guns from the
master bedroom, went into the hallway, and saw Welch
"coming down the hallway towards the master bedroom at
him." Hand and Welch then began firing at each other in
the hallway and were within four feet of each other during
the gun battle. Hand repeated that he chased Welch outside
the house but "couldn't get his guns to fire; that
he was missing every other round and * * * they weren't
firing." When asked about the .32-caliber revolver in
the front yard, Hand stated that he did not know who owned
During the second interview, Hand said, "I was misquoted
on the first interview at the hospital" about not
knowing Welch. Hand said that he had known Welch, a former
employee, for over 20 years. However, Hand continued to give
the impression that they were not close. When asked about a
wedding photo showing Welch as his best man, Hand said he
"couldn't find anybody else to stand in as [his]
best man." Hand repeated that "the only thing he
saw" on the night of the murder was an unknown person in
"red and black flannel, " and he had "no clue
who this unknown person was." Hand also said that
"Jill had never met Lonnie; Lonnie's never been to
Walnut Avenue; he had no idea why he was there."
In discussing his financial situation, Hand said he sold his
radiator shop in October 2000 and received $ 300, 000, and
later received $ 33, 000 from the sale of his share of the
business and its inventory, and $ 140, 000 from somewhere
else. Hand said he "always needed money, but if he
needed money, he could get some; that he had money."
Hand also told police that he was "hiding the money and
that he was considering filing bankruptcy; that that was
against Jill's wishes." Later, Hand said that he
"wasn't going to file for the bankruptcy * * * and
they were going to work it out." When asked if he had
any offices, Hand said that his office was in a bedroom in
the house. However, Hand failed to disclose that he kept
business records at another location.
On January 19, 2002, the police seized several boxes
containing Hand's business and personal records from the
storage area above a hardware store near Hand's former
radiator shop. These records included credit cards,
credit-card-and life-insurance-account information, payment
receipts, a list of credit card debt prepared by Jill, and
other information about Hand's finances.
Heather Zollman, a firearms expert, testified that the
.32-caliber revolver found in the front yard was loaded with
two fired and three unfired .32-caliber Smith and Wesson
("S & W") Remington-Peters cartridges. Bullet
fragments removed from Jill's skull were consistent with
being an S & W .32-caliber bullet. In testing the
.32-caliber revolver, Zollman found that "on more than
50 percent of [her] testing, the firearm misfired" as a
result of "a malfunction of the firearm." The
stippling pattern shown in Jill's autopsy photographs
indicated that "the muzzle to target distance was
greater than six inches, and less than two feet."
Zollman tested the two .38-caliber revolvers and found that
they were both in proper working order, and neither weapon
showed any tendency to misfire. A bullet removed from
Welch's right forearm was "consistent with the .38
caliber." Zollman also concluded that the bullet and
fragments recovered from Welch's mouth and his lower back
had rifling class characteristics corresponding with the S
& W .38-caliber revolver. Further, gunshot residue around
the bullet hole on the back of Welch's shirt revealed a
muzzle-to-target distance greater than two feet from the
garment but less than five feet.
Jennifer Duvall, a DNA expert, conducted DNA testing of
bloodstains found on the shirt Hand was wearing on the night
of the murders. Five of the bloodstains were consistent with
the DNA profile of Welch. The odds that DNA from the shirt
was from someone other than Welch was "one in more than
seventy-nine trillion in the Caucasian population; one in
more than forty-four trillion in the African-American
population, and one in approximately forty-three trillion in
the Hispanic population."
Michele Yezzo, a forensic scientist, examined bloodstain
patterns on Hand's shirt. There were more than 75 blood
spatters of varying sizes on the shirt. Yezzo concluded that
the shirt was "exposed to an impact" that
"primarily registered on the front of the garment."
Yezzo also examined glass fragments collected from Hand's
residence and "found tiny fragments of clear glass"
on Hand's shirt, trousers, tee-shirt, and pair of socks
that he was wearing on the night of the murders. However, she
found no glass fragments on Welch's boots. Yezzo
conducted a fiber analysis of the bullet from Welch's
mouth, but found "no fibers suitable for
Ted Manasian, a forensic scientist, found particles of lead
and barium on both gloves that Welch was wearing, and these
are "highly indicative of gunshot residue."
Manasian could not determine how the gunshot residue got on
the glove, just that it was there. Thus, Welch could have
fired the gun, or was in the proximity of the gun when it was
discharged, or handled an item that had gunshot residue on
Detective Otto testified that $ 1, 006, 645.27 in life
insurance and state-benefit accounts were in effect at the
time of Jill's death. This amount included $ 113, 700 in
Jill's Ohio Public Employees Retirement System account
and $ 42, 345.29 accumulated in the Ohio Public Employees
Deferred Compensation program.
Dr. Keith Norton, a forensic pathologist in the Franklin
County Coroner's office, conducted the autopsy of Jill
and Welch. He concluded that Jill died from a single gunshot
wound to the head. Dr. Norton found that Welch had been shot
five times: in his mouth, left upper chest, left forearm,
right shoulder, and lower back. The gunshot wound to
Welch's lower back went into the spinal cord and would
have paralyzed his legs. However, the gunshot wound to the
chest was the cause of death.
According to Kenneth Grimes Jr., Hand's former cellmate
in the Delaware County Jail, Hand told him that he
"killed his wife and the man he was involved with."
Hand said he hired a man and they had "been doing
business together for years." Hand said he "hired
the man to kill his wife and, in turn, the deal went sour. He
wanted more money, so he killed two birds with one stone. He
got both and didn't have to pay anything." Hand said
he had agreed to pay $ 25, 000 to have his wife killed, and
the man "wanted it doubled." Hand said he was going
to claim self-defense. He also said the evidence against him
was "circumstantial and there were many witnesses that
didn't have * * * any actual, proof."
State v. Hand, 840 N.E.2d 151, 165-68 (Ohio 2006).
Hand's conflicting statements about the night of
Jill's death, in conjunction with forensic evidence and
statements of other members of the community, strongly
implicated Hand and Welch in a plot to kill Jill in order to
collect her lucrative insurance policy and pensions. When
Welch reneged on the deal and demanded more money, Hand
allegedly killed him and staged the scene in order to claim
with this information, Ohio prosecutors sought and received a
grand-jury indictment in state court against Hand on six
counts. Counts One and Two charged Hand with the aggravated
murder of Jill and Welch and included several death-penalty
specifications: two "'course of conduct'
specification[s], " (one for each count) id. at
170 (citation omitted), because the murders were part of a
course of conduct involving the murders of two or more
people; "three specifications of murdering Welch to
escape detection for Hand's complicity in the murders of
Donna, Lori, and Jill Hand; and two specifications of
murdering Welch for the purpose of preventing his testimony
as a witness in the murders of Donna and Lori Hand."
Ibid. Counts Three, Four, and Five charged Hand with
conspiracy to commit the aggravated murder of Jill, and Count
Six charged Hand with escape for his involvement in an
attempt to escape police custody after he was
pleaded not guilty. The jury found Hand guilty of all of the
charges listed in the indictment. At the sentencing hearing,
psychologist Dr. Daniel Davis testified about Hand's
background and his ability to adjust to life in prison;
Hand's son and another witness also testified on his
behalf, and Hand submitted an unsworn statement. Id.
at 188-89. The jury recommended the death penalty for both
murders. Id. at 170. The judge accepted the
jury's recommendation and sentenced Hand to death for
Counts One and Two of the indictment. The judge also
sentenced Hand to consecutive sentences of three years for
two of the remaining counts of conviction.
filed a notice of appeal to the Supreme Court of Ohio in
2003, raising therein thirteen "propositions of
law" for relief:
PROPOSITION OF LAW NO. 1
Where the State fails to prove by clear and convincing
evidence that a witness is unavailable due to a criminal
defendant's wrongdoing, and the proposed evidence does
not meet standards of reliability, it is constitutional error
to admit this evidence against the defendant.
PROPOSITION OF LAW NO. 2
The introduction and admission of prejudicial and improper
character and other acts evidence and the failure of the
trial court to properly limit the use of the other acts
evidence denied Gerald Hand his rights to a fair trial, due
process and a reliable determination of his guilt and
sentence as guaranteed by the United States Constitution,
Amends. V, VI, VIII, AND XIV; Ohio Const. Art. I,
§§ 10 and 16.
PROPOSITION OF LAW NO. 3
It is prejudicial error for a trial court to join the
unrelated charge of escape with charges of aggravated murder
and conspiracy in violation of O.R.C. § 2941.04, thus
prejudicing Appellant in violation of his constitutional
PROPOSITION OF LAW NO. 4
Where the State has failed to present any evidence that a
criminal defendant planned to break his detention, a
conviction on the charge of escape is constitutionally infirm
due to the insufficiency of the evidence to prove each
element of the offense.
PROPOSITION OF LAW NO. 5
When the State proceeds on a theory that the defendant is
the principal offender of an aggravated murder, it is error
for the trial court to instruct the jury on complicity. U.S.
Const. VI, XIV.
PROPOSITION OF LAW NO. 6
The trial court's failure to give the required
narrowing construction to a "course-of-conduct"
specification in a capital case creates a substantial risk
that the death penalty will be inflicted in an arbitrary and
capricious manner in violation of the United States
Constitution. U.S. Const. Amends. VIII & XIV.
PROPOSITION OF LAW NO. 7
Where trial counsel's performance at voir dire and in
the trial phase in a capital case falls below professional
standards for reasonableness, counsel has rendered
ineffective assistance, thereby prejudicing the defendant in
violation of his constitutional rights.
PROPOSITION OF LAW NO. 8
Where trial counsel put on a very brief and skeletal
presentation at the penalty phase, fail to argue residual
doubt and fail to make any closing argument to the jury,
counsel's performance is substandard and a capital
defendant is prejudiced thereby. U.S. Const. amends. VI,
VIII, and XIV.
PROPOSITION OF LAW NO. 9
The capital defendant's right against cruel and
unusual punishment and his right to due process are violated
when the legal issue of relevance is left to the jury
regarding sentencing considerations. U.S. Const. amends.
PROPOSITION OF LAW NO. 10
A capital defendant's right against cruel and unusual
punishment under the Eighth and Fourteenth Amendments is
denied when the sentencer is precluded from considering
residual doubt of guilt as a mitigating factor. The
preclusion of residual doubt from a capital sentencing
proceeding and the trial court's refusal to instruct the
jury to consider it also violate the Defendant's due
process right to rebuttal under the Fourteenth Amendment. The
preclusion of residual doubt may also infringe a capital
defendant's right to the effective assistance of counsel
as guaranteed by the Sixth and Fourteenth Amendments. U.S.
Const. Amends. VI, VIII, XIV; Ohio Const. Art. I,
§§ 9, 10, 16.
PROPOSITION OF LAW NO. 11
Gerald Hand's death sentence must be vacated by this
Court as inappropriate because the evidence in mitigation was
not outweighed ...