Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Pointer v. Warden, Chillicothe Correctional Institution

United States District Court, S.D. Ohio, Western Division, Cincinnati

June 5, 2017

BARRY POINTER, Petitioner,
v.
WARDEN, Chillicothe Correctional Institution, Respondent.

          District Judge Susan J. Dlott.

          REPORT AND RECOMMENDATIONS

          Michael R. Merz United States Magistrate Judge.

         This habeas corpus case is before the Court for decision on the merits. Petitioner has filed the Petition (ECF No. 5) and a Traverse (ECF No. 11). Respondent filed the state court record (“Record, ” ECF No. 9) and the Answer/Return of Writ (ECF No. 10).

         The Magistrate Judge reference in the case has been transferred to the undersigned to help balance the workload among Magistrate Judges in the Western Division.

         Pointer pleads the following Grounds for Relief:

GROUND ONE: The trial court erred as matter of law by allowing hearsay evidence to be admitted in violation of Petitioner's right to fair trial and impartial trial.
Supporting Facts: Detective Dunaway was permitted to testify as to what Mr. Madden told him about the event over Petitioner's objection. Detective Dunaway testified that that he spoke with Mr. Madden after Petitioner had already been arrested which was about an hour after the incident, the statement made at that point was not excited utterance, and therefore prejudiced the Petitioner.
GROUND TWO: The trial court erred by overruling Petitioner's motion for a new trial.
Supporting Facts: Defendant filed his motion on the basis that the trial court admitted hearsay which affected his substantial rights to a fair trial, and that the trial court did not provide a full and fair hearing on the motion in violation of the 6th, and 14th Amendments to the Unites States Constitution to due process and equal protection, as the trial court failed to give findings on the record.
GROUND THREE: The evidence was insufficient as a matter of law and was against the manifest weight of evidence to sustain the conviction.
Supporting Facts: The State failed to prove beyond a reasonable doubt that Petitioner recklessly inflicted, attempted to inflict or, threatened to inflict physical harm to Mr. Madden while committing a theft offense under R.C. 2911.02(A)(2).
GROUND FOUR: The trial court erred as a matter of law in sentencing petitioner.
Supporting Facts: The trial court violated R.C. 2929.11(A)(B), 2929.12 and 2929.12 (B) and (C)(3) by failing to consider the court's own findings of the Petitioner being a first time violent type offender, and still imposed a significant prison sentence making the sentence contrary to law.
GROUND FIVE: The appellate court denied Petitioner due process and equal protection of the law under the 5th and 14th Amendments to the United States Constitution where the appellate failed to rule on all Petitioner's assigned constitutional claims, assigned errors.
Supporting Facts: Once an error is raised, it may only be waived by the party submitting the brief. Here counsel raised four issues, the appellate addressed two.

(Petition, ECF No. 5, PageID 56.)

         Procedural and Factual History

         Pointer was indicted by the Hamilton County Grand Jury in 2014 on one count of robbery (Ohio Revised Code § 2911.02(A)(2)(State Court Record (“Record”), ECF No. 9, PageID 82). Pointer, through counsel, waived a trial by jury and a bench trial was held. After the bench trial, Pointer immediately moved for a new trial pursuant to Criminal Rule 33(A)(1) and (A)(5), arguing that the court had erred by admitting hearsay statements made by the victim to police as excited utterances which prevented him from receiving a fair trial. Id. The court denied the motion; found Pointer guilty as charged, and sentenced him to 6 years in prison (Record, ECF No. 9, PageID 91).

         Pointer appealed to the Court of Appeals of Ohio, First Appellate District, Hamilton County, which set forth the facts of this case as follows:

[*P3] Steve Madden parked his truck on a street in downtown Cincinnati and smoked a cigarette while waiting to appear for a court hearing scheduled for later that morning. Pointer walked by and asked Madden for a cigarette and to sit in his truck. Madden obliged. The two conversed for a while and then, after a struggle, Pointer took Madden's wallet and ran. According to Madden, Pointer had told him that he had a gun, and Pointer had beaten him on his head with a hard object that Madden had first believed was a gun, but later realized was a cellular phone.
[*P4] Moments after the attack, Cincinnati Police Office Jennifer Ventre appeared on the scene, and Madden excitedly told her what had occurred. About an hour later, a still agitated Madden related his information to Cincinnati Police Detective Jeff Dunaway in response to investigative questioning. Pointer was apprehended and admitted to taking Madden's wallet, but he denied using or threatening any force. He testified accordingly, but he was impeached with his previous convictions, in accordance with Evid. R. 609.

(Record, ECF No. 9, PageID 121.) Following briefing on the appeal, the court of appeals affirmed the judgment of the trial court. State v. Pointer, Case No. C-140422 (Ohio App. May 20, 2015.)(unreported; copy at Record, ECF No. 9, PageID 121, et seq.), appellate jurisdiction declined, State v. Pointer, 143 Ohio St.3d 1465 (2015). Pointer timely filed his habeas corpus petition in this Court on March 14, 2016.

         Analysis

         Ground One: Admission of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.