The opinion of the court was delivered by: Sandra S. Beckwith, Chief Judge United States District Court
This matter is before the Court on Petitioner Vincent Doan's Petition for a Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 (Doc. No. 1), Magistrate Judge Hogan's Report and Recommendations of December 20, 2004 and January 19, 2006 (Doc. Nos. 59 & 66) and Petitioner's objections to those Report and Recommendations (Doc. Nos. 61 & 67). For the reasons set forth below, Petitioner's objections to Magistrate Judge Hogan's Report and Recommendation of January 19, 2006 are well-taken and are SUSTAINED. The Court does not adopt that Report and Recommendation. Because the Court has conducted a de novo review of the record in this case, the Court declines to adopt or reject Magistrate Judge Hogan's Report and Recommendation of December 20, 2004. Accordingly, Petitioner's objections to that Report and Recommendation are MOOT. On de novo review, however, the Court finds that Petitioner has failed to demonstrate any denial of a federal constitutional right. Accordingly, Petitioner's petition for a writ of habeas corpus is not well-taken and is DENIED.
I. Procedural and Factual Background
The Court will provide the specific procedural and factual details of Petitioner's case as needed. The Court, therefore, will only set forth a general statement of the case at this time.
Carrie Culberson disappeared from Blanchester, Ohio some time after 11:30 p.m. on the night of August 28, 1996. Although Culberson's body has never been recovered, the grand jury in Clinton County, Ohio charged Petitioner Vincent Doan with her aggravated murder. The grand jury also charged Petitioner with four counts of kidnapping Culberson.
The prosecution's evidence admitted at trial showed that Petitioner and Culberson were in a relationship in which Petitioner was both jealously obsessed with Culberson and physically abusive to her. For instance, Petitioner would call Culberson at work as many as four times a day and seemed to show up where Culberson was if he was not already with her. Much of the evidence concerning Petitioner's abuse of Culberson consisted of Culberson's hearsay statements presented to the jury through the testimony of other witnesses. Three of these incidents stand out from the others. In April 1996, Culberson came to work with swollen and blackened eyes and a split lip and told her boss, Desiree Gruber, that Petitioner had hit her and threw her to the ground repeatedly. On July 28, 1996, Culberson filed a criminal complaint against Petitioner after he struck her in the head with a space heater, an injury which required five staples to close the wound. On August 27, 1996, just one day before she disappeared, Culberson told both her friend, Tonya Whitten, and her cousin, Shannon Culberson, that the night before Petitioner held her at gunpoint in his car for four and a half to five hours. The witnesses testified that during this time, Culberson told them that Petitioner stated that he was not going to go to jail and threatened to kill her and her family.
Under the prosecution's theory of the case, the last person to see Culberson alive, other than Petitioner himself, was Petitioner's neighbor, Billie Jo Brown. Brown testified that at around 12:30 a.m. on August 29, 1996, she saw Petitioner chasing Culberson through her yard while she yelled for help. Petitioner caught Culberson after she tripped in a hole in the yard, grabbed her arm, and after punching her in the face, said, "I told you the next time I'd kill you, you fucking bitch." Culberson escaped momentarily, but as Brown turned away to wake her husband, Petitioner apparently managed to subdue Culberson and drive her away in her red 1989 Honda CRX.
Lori Baker, who was married to Petitioner's half-brother Tracey Baker, testified that Petitioner came to their home on Supinger Street in Blanchester at about 3:15 a.m. asking to speak to Tracey. Baker testified that Petitioner looked disheveled, was shirtless and shoeless and had blood smeared on his chest, arms, and jeans. Petitioner and Tracey spoke alone in the bedroom for a few minutes. Petitioner then took a shower and Tracey asked Baker for garbage bags. After Petitioner showered and changed clothes, he and Tracey left with the garbage bags and a gun. They returned to the house at about 6:00 a.m. Tracey asked Baker for bleach and a scrub brush which in turn he gave to Petitioner, who was taking another shower. Baker further testified that she observed drops of blood on Tracey's boots, which he wiped off with a rag or paper towel. Baker also testified that while she was sitting with Petitioner on the deck of her house at some point during the weekend immediately following Culberson's disappearance, Petitioner stated that he "couldn't imagine hurting someone and holding her until she died."
Another important witness for the prosecution was jailhouse informant Mitchell Epperson. Epperson testified that he and Petitioner became acquainted when they were incarcerated together at the Queensgate Correctional Facility. At the time, Petitioner was in jail on an unrelated charge but was under investigation for Culberson's disappearance. Epperson testified that during a discussion concerning whether their girlfriends had ever been unfaithful, Petitioner said that "you can't let them walk on you, you got to make them pay." Petitioner also stated that "he would lie awake at night and think of a hundred different ways to kill her before he did it."
Petitioner's theory of the case was that Culberson was not dead at all, but rather was alive and still in the area or that she was alive but had left the area. In support of the former theory, Petitioner put on a number of witness who purportedly saw Culberson, or a woman fitting Culberson's description, or her car, in the days and weeks following her disappearance. Petitioner also adduced evidence from Cicely Kukuk, Culberson's best friend, that Culberson had discussed moving to North Carolina. Petitioner also put on alibi witnesses in the form of his father and step-mother, who both testified that they stopped by Petitioner's house at around 1:30 a.m. on the morning of August 29, 1996 and found Petitioner sleeping on the sofa.
The jury returned guilty verdicts on the aggravated murder charge and three of the four kidnapping charges. Following the mitigation stage of the trial, the jury recommended that Petitioner be sentenced to life imprisonment without the possibility of parole. The trial judge sentenced Petitioner to life imprisonment without the possibility of parole on the aggravated murder conviction and to consecutive nine year terms of imprisonment on the kidnapping convictions.
Petitioner's convictions and sentences were affirmed on direct appeal. State v. Doan, No. CA97-12-014, 2000 WL 221963 (Ohio Ct. App. Feb. 28, 2000), discretionary appeal not allowed, State v. Doan, 731 N.E.2d 1139 (Ohio 2000). Petitioner commenced post-conviction relief proceedings in state court on December 31, 1998. On August 29, 2001, the Clinton County Court of Common Pleas denied Petitioner post-conviction relief. Petitioner appealed that decision to the Ohio Court of Appeals, which issued a decision affirming the judgment of the court of common pleas on June 28, 2002.
In the interim, on August 31, 2000, Petitioner filed with this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Respondent moved to dismiss Petitioner's petition on the grounds that he had failed to exhaust available state remedies. Petitioner argued that exhaustion should be excused because of the state's unjustified delay in acting on his petition for post-conviction relief. The Court agreed, Doc. No. 15, and referred the matter to Magistrate Judge Hogan for issuance of a report and recommendation on the merits of the petition.
On December 20, 2004, Magistrate Judge Hogan issued a report and recommendation (Doc. No. 59) recommending that Petitioner's petition be denied. Petitioner filed timely objections to Magistrate Judge Hogan's report and recommendation, arguing in part that he should not have granted deference to state court findings of fact because the Court had excused the exhaustion requirement. The Court sustained Petitioner's objections pursuant to the Sixth Circuit's opinion in Turner v. Bagley, 401 F.3d 718 (6th Cir. 2005). Turner, this Court stated, stood for the proposition that state court findings of fact are not entitled to deference if the district court has excused the exhaustion requirement, even if the state court subsequently issues a ruling in the petitioner's post-conviction relief proceedings. Accordingly, the Court remanded the case to Magistrate Judge Hogan to review de novo those portions of his report and recommendation which gave deference to the state court findings of fact and issue a supplemental report and recommendation.
Magistrate Judge Hogan issued his supplemental report and recommendation on January 19, 2006. Doc. No. 66. However, the bulk of the report and recommendation is devoted to his disagreement with this Court's analysis of Turner. Magistrate Judge Hogan ended his report and recommendation with a conclusory statement that he had reviewed the record de novo and that Petitioner is not entitled to relief for the reasons stated in his original report and recommendation. Petitioner then objected to the supplemental report and recommendation (Doc. No. 67), arguing that the supplemental report and recommendation is not in compliance with the remand order. The Court agrees with Petitioner's assessment of the supplemental report and recommendation. Accordingly, it has reviewed Petitioner's claims for relief and the entire record de novo.
Petitioner raises thirteen grounds for relief in his petition. The Court will review Petitioner's claims for relief seriatim.
A federal court may issue a writ of habeas corpus to correct a state trial or other proceeding that has placed the petitioner in state confinement if the state proceeding was rendered fundamentally unfair by a violation of the Constitution, the laws, or the treaties of the United States. See Estelle v. McGuire, 502 U.S. 62, 68 (1991); Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994); 28 U.S.C. § 2254(a). In general, such a writ will not be issued unless actual prejudice is shown. See Clemmons, 34 F.3d at 354. Actual prejudice results when the constitutional error has a "substantial and injurious effect or influence in determining the jury's verdict." Id. (quoting Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
A. First Ground for Relief
Petitioner's first claim for relief states:
PETITIONER WAS DEPRIVED OF HIS RIGHT TO DUE PROCESS AND THE RIGHT TO A FAIR TRIAL, UNDER THE FIFTH AND FOURTEENTH AMENDMENTS, WHEN THE TRIAL COURT GAVE THE JURY AN IMPROPER, MISLEADING, AND CONFUSING INSTRUCTION WHICH LESSENED THE STATE'S BURDEN OF PROOF FOR A CONVICTION. THE TRIAL COURT'S ERRORS ARE STRUCTURAL, NOT SUBJECT TO HARMLESS ERROR ANALYSIS
During the charge conference to develop final instructions for the jury, trial counsel for Petitioner requested the court to instruct the jury that it was not permitted to draw an inference from another inference. Tr. at 3157. In response, the assistant prosecutor suggested that the court give the pattern instruction from § 5.10 of the Ohio Jury Instructions. Id. at 3158. As it turns out, this pattern instruction is for civil trials and, accordingly, the burden of proof is lower.*fn2
The trial court agreed, however, to give this instruction to the jury without objection from Petitioner's counsel.
During the second day of deliberations, the jury sent a note to the trial judge asking him to reread the instructions concerning direct and circumstantial evidence. Tr. at 3374. The trial judge repeated the pertinent instructions, including the civil instruction concerning drawing inferences. Id. at 3375. After the jury returned to continue its deliberations, trial counsel for Petitioner realized for the first time that the jury had been given the preponderance of the evidence instruction on inferences instead of the beyond a reasonable doubt instruction. Id. at 3376. Counsel, therefore, requested that the jury be recalled and the error corrected. Id. at 3378-79. The trial court, however, declined to reinstruct the jury because he did not want to draw attention to the instruction. Id. at 3380.
Petitioner contends that the trial court's instruction on drawing an inference from an inference impermissibly lowered the prosecution's burden of proof on each element of the offense.
Petitioner further argues that this error is structural, requiring automatic reversal, and, therefore, not subject to harmless error review.
Initially, the Court disagrees with Petitioner that the trial court's use of the civil pattern instruction resulted in a structural error requiring automatic reversal. In support of this argument, Petitioner relies on Sullivan v. Louisiana, 508 U.S. 275 (1993). In Sullivan, the trial court's reasonable doubt instruction was a structural error, not subject to harmless error analysis, because it permitted the jury to find the defendant guilty on a degree of proof less than a reasonable doubt. The Court, however, had already reviewed a substantially similar instruction in another case, Cage v. Louisiana, 498 U.S. 39 (1990), and concluded that the instruction permitted the jury to convict the petitioner on a lower degree of proof. Thus, as the Eight Circuit has pointed out, in Sullivan, the Court "started with the proposition that the instruction at issue constituted error, i.e., there was a reasonable likelihood that the jury applied the challenged instruction in an unconstitutional manner." United States v. West, 28 F.3d 748, 751 (8th Cir. 1994). In this case, the problem is not that the trial court's instruction on the government's burden of proof was erroneous. Indeed, the trial court repeatedly instructed the jury that the prosecution was required to prove Petitioner guilty beyond a reasonable doubt and that it was required to prove each element of the offense charged beyond a reasonable double. Instead, the problem is this case was commingling, for lack of a better word, a proper instruction on proof beyond a reasonable doubt with an instruction stating that the jury could draw an inference based on facts proved by a greater weight of the evidence. That type of error does not constitute a structural error. Victor v. Nebraska, 511 U.S. 1 (1994). The Court's inquiry, therefore, is whether there is a reasonable likelihood that the jury applied the instruction in question in an unconstitutional manner, i.e., whether there is a reasonable likelihood that the jury understood the instructions to allow conviction on proof less than a reasonable doubt. Id. at 6. The ultimate question is whether the instructions, taken as a whole, correctly conveyed the concept of reasonable doubt to the jury. Id. at 23.
West is a factually similar case in that the trial court, in instructing the jury on the difference between direct and circumstantial evidence, stated that "[t]he law makes no difference between direct and circumstantial evidence but simply requires that the jury find the facts in accordance with the preponderance of all the evidence in the case, both direct and circumstantial." West, 28 F.3d at 749. Applying the Victor standard, the Eighth Circuit held that it was not reasonably likely that the jury improperly applied this instruction to impermissibly lower the prosecution's burden of proof in the context of the entire instructions. The Court noted that this instruction did not purport to define the prosecution's burden of proof; rather it was an ancillary instruction explaining that direct and circumstantial evidence are treated the same under the law. The Court also observed that from the beginning of voir dire through the final instructions, the trial court repeatedly and accurately defined the prosecution's burden of proof as being beyond a reasonable doubt. The Court also believed that the statements of counsel reinforced that the prosecution's burden was beyond a reasonable doubt. Id. at 752.
In Coleman v. Mitchell, 268 F.3d 417 (6th Cir. 2001), a capital case, the trial court in part instructed the jury that "[r]easonable doubt is present when after you carefully consider and compare all evidence, you can not say you are firmly convinced of the truth of the charge." Id. at 436. During his habeas proceedings, the petitioner argued that this instruction permitted the jury to find aggravating circumstances under the clear and convincing evidence standard. The Sixth Circuit, however, rejected this argument pursuant to Victor, noting that "[t]he jury instructions actually provided, both at the beginning and end of the particular instruction at issue, that 'the State has the burden of proving by proof beyond a reasonable doubt that the aggravating circumstances which the defendant was found guilty of committing is [sic] sufficient to outweigh the factors in mitigation.'" Id. at 437. Thus, the Court concluded that the jury instructions did not violate due process.
In this case, as noted, the trial court repeatedly instructed the jury that the prosecution was required to prove Petitioner guilty beyond a reasonable doubt and that it was required to prove each element of each offense beyond a reasonable doubt. Tr. at 3329, 3336, 3338, 3339, 3343, 3344, 3345-46, 3347, 3349, 3350, 3351. Moreover, in final arguments, Petitioner's defense counsel emphasized that it was the prosecution's burden to prove Petitioner guilty on each offense beyond a reasonable doubt. Id. at 3233, 3235, 3239, 3248, 3249, 3255, 3267, 3279. In rebuttal argument, the prosecution told the jury that its burden was to prove Petitioner guilty beyond a reasonable doubt. Id. at 3310-12; 3326. The prosecution also implicitly, if not explicitly, explained that its burden of proof was greater than the preponderance standard. Id.*fn3 Like the instruction in West, the instruction at issue in this case did not purport to define the prosecution's burden of proof. Rather, the purpose of the instruction was to caution the jury that it was not permitted to draw an inference solely from another inference. Under all of the circumstances, the jury instructions as whole properly conveyed that the prosecution's burden was to prove Petitioner guilty of each element of each offense by proof beyond a reasonable doubt.
The Court finds that it is not reasonably likely that the jury applied the jury instructions in an unconstitutional manner, i.e., relieved the prosecution of its burden to prove Petitioner's guilt beyond a reasonable doubt. Accordingly, Petitioner's First Ground for Relief is not well-taken.
B. Second, Third and Fourth Grounds for Relief
Petitioner's second, third and fourth claims for relief concern the prosecution's duty to disclose exculpatory and impeachment information to the defendant as required by Brady v. Maryland, 373 U.S. 83 (1963), and its progeny:
SECOND GROUND FOR RELIEF THE STATE VIOLATED PETITIONER'S RIGHTS UNDER THE DUE PROCESS CLAUSE OF THE FOURTEENTH AMENDMENT AND THE RIGHT TO COUNSEL CLAUSE OF THE SIXTH AMENDMENT BY SUPPRESSING EVIDENCE MATERIAL TO THE ISSUE OF GUILT THIRD GROUND FOR RELIEF PETITIONER'S CONVICTIONS WERE OBTAINED IN VIOLATION OF HIS FEDERAL CONSTITUTIONAL RIGHTS BECAUSE, CONSIDERED COLLECTIVELY, THE STATE SUPPRESSED MATERIAL EXCULPATORY EVIDENCE FOURTH GROUND FOR RELIEF THE GOVERNMENT'S FAILURE TO DISCLOSE MATERIAL IMPEACHMENT AND EXCULPATORY EVIDENCE RENDERED PETITIONER'S COUNSEL UNABLE TO PROVIDE EFFECTIVE ASSISTANCE OF COUNSEL AT HIS TRIAL IN VIOLATION OF PETITIONER'S RIGHTS UNDER THE SIXTH AND FOURTEENTH AMENDMENTS
Petitioner contends that the prosecution failed to disclose eight material items of impeachment or exculpatory evidence: 1) prior statements of witness Billie Jo Brown in which she said that she was unable to positively identify Petitioner from a photo-array as the man she saw assaulting Culberson in her yard. Additionally, the prosecution failed to disclose a statement in which Brown stated that Culberson's attacker was wearing a ball cap, t-shirt and jeans, whereas at trial Brown stated that the assailant was wearing shorts and a muscle shirt; 2) prior inconsistent statements of witness Lori Baker concerning whether she saw Petitioner smeared with blood; 3) evidence that the prosecution would not prosecute witnesses Lori Baker and Vicki Watkins if they implicated Petitioner in Culberson's murder; 4) statements of Culberson that she had confided to a friend that she was considering leaving Blanchester; 5) statements from two witnesses who claimed to have seen a man and woman generally fitting Petitioner's and Culberson's descriptions at times immediately after the prosecution contended that Culberson was already dead; 6) evidence that Clinton County Sheriff Detective Brian Edwards had been disciplined in 1987 for lying to a supervisor and abusing sick time; 7) evidence that Vicki Watkins was hypnotized in order to refresh her memory and given a voice stress test to assess her veracity; and 8) evidence that the prosecution promised Mitchell Epperson that he would be eligible for a reward for giving testimony against Petitioner and that the prosecution intervened on behalf of Epperson in other pending criminal matters.
There are three elements to establishing a Brady claim:
1) the evidence at issue must be favorable to the accused because it is exculpatory or impeaching; 2) the evidence must have been suppressed by the prosecution, either willfully or inadvertently; and 3) prejudice must have resulted from the suppression of evidence. Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Prejudice results if the suppressed evidence is material, i.e., there is a reasonable probability that the outcome of the proceeding would have been different had the evidence been disclosed to the defense. Id. at 280. In Kyles v. Whitley, 514 U.S. 419 (1995), the Supreme Court emphasized four important points concerning application of the Brady materiality standard.
First, a showing of materiality does not require a demonstration by a preponderance that disclosure of suppressed evidence would have resulted in the defendant's acquittal. Id. at 434. Rather, the inquiry is whether in light of the suppressed evidence the defendant received a fair trial, defined as "a trial resulting in a verdict worthy of confidence." Id. Thus, materiality is demonstrated when the suppressed evidence "undermines confidence in the outcome of the trial." Id. (quoting United States v. Bagley, 473 U.S. 667, 678 (1985)).
Second, the materiality standard is not a sufficiency of the evidence test. Kyles, 514 U.S. at 434. "A defendant does not need to demonstrate that after discounting the inculpatory evidence in light of the undisclosed evidence, there would not have been enough left to convict." Id. at 434-35. Again, the Court emphasized, the question is whether the undisclosed evidence "could reasonably be taken to put the whole case in such a different light as to undermine confidence in the verdict."
Third, once the reviewing court has determined that the suppressed evidence is material, there is no need for harmless error review. Id. In other words, the prosecution's failure to disclose material exculpatory or impeachment evidence can never be harmless.
Fourth, in assessing materiality, the reviewing court must consider the effect of the suppressed evidence collectively, not item by item. Id. at 436. Stated another way, the reviewing court must assess the effect of the suppressed evidence as a whole, not whether an individual piece of evidence undermines confidence in the verdict. See id. at 441 ("The result reached by the Fifth Circuit is compatible with a series of independent materiality evaluations, rather than the cumulative evaluation required by Bagley[.]").
With this materiality standard in mind, the Court concludes that the evidence undisclosed by the prosecution, considered collectively, does not establish a reasonable probability that the outcome of the trial would have been different. In other words, the undisclosed evidence does not undermine confidence in the jury's verdict.
The prosecution's case was built around Petitioner's jealously and obsession with Culberson, his persistent and increasingly severe abuse of her, Lori Baker's account of Petitioner arriving at her house disheveled and smeared with blood, and Petitioner's incriminating statements. Although the case was circumstantial, the evidence adduced by the prosecution was compelling. By contrast, Petitioner's theory of the case, that Culberson had left town or in fact was still alive, was weak and not credible.
On the former theory, Culberson had no money with which to leave town. Kenneth Larrick, the vice president of the bank where Culberson kept her checking account, testified that the day before her disappearance, August 28, 1996, Culberson's account showed an overdraft of $3.09. Tr. at 2178. In fact, one of Culberson's friends, Tonya Whitten, testified that she played volleyball with Culberson on the evening of August 28, and that before the game she and Culberson had to scrape change out of the ashtray of her car to have enough money to buy beer. Id. at 1983. Culberson had recently refused an offer from her boss, Desiree Gruber, to give her money for an opportunity to relocate from Blanchester. Id. at 2093-94. Culberson rejected a similar offer from her mother. Id. at 2425-26. Two days before she disappeared, Culberson took an entrance examination for nursing school at Southern State Community College, located in nearby Hillsboro. Id. at 2096; 2397. In addition, Culberson had stated that she wanted to remain in town because her younger sister was going to have some important events upcoming, such as the prom, for which she wanted to remain in Blanchester. Tr. at 2425-26. Culberson also expressed fear that if she left Blanchester Petitioner would do harm to her family. Id. at 2094-95. Furthermore, at trial, Petitioner did not adduce any evidence which indicated that Culberson would have suddenly decided to leave town sometime between 11:30 p.m. on August 28, the last time Tonya Whitten saw her, and 6:00 a.m. on August 29, when her mother discovered she was missing. Id. at 2427. None of Culberson's clothes were missing. Id. Thus, there was powerful evidence that Culberson had neither the means nor the intention to leave Blanchester.
Similarly, Petitioner's second theory of the case, that Culberson was still alive and in the area, was not persuasive to the jury. This theory was supported by a series of witnesses who claimed to have seen Culberson and/or her car in the weeks following the report of her disappearance. A number of these witnesses testified that they were positive they had seen Culberson. The Court will only summarize the testimony of a few of these witnesses.
Gabrielle Jones knew Culberson and testified that on morning of August 29, between 11:00 a.m. and 11:30 a.m., she saw Culberson driving on Fancy Street in Blanchester. Jones testified that Culberson's car was packed with clothing. She further testified that she honked at Culberson and that Culberson waved at her as she drove by. Tr. at 2512. Witnesses Helen Hedrick, Nancy Cecil, and Patricia Little were driving together from Sardinia, Ohio to Williamsburg, Ohio on State Route 32 during the early evening of August 31, 1996. Outside of Mt.
Orab, Ohio, they picked up a young woman hitchhiking who said that she had been in Maysville, Kentucky and wanted to get to Bethel. They drove the hitchhiker to a convenience store at the intersection of a road leading into Bethel. Later the same night, Hedrick saw a picture of Culberson on television during the evening news. Hedrick, Cecil, and Little each testified that Culberson was the hitchhiker they picked up. The clerks at the convenience store, Sheri Jackson ...