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Ream v. Bunting

United States District Court, N.D. Ohio, Eastern Division

February 28, 2018




         Before the Court is the Report and Recommendation of Magistrate Judge Kathleen B. Burke (Doc. No. 28 [“R&R”]) recommending denial of this petition for writ of habeas corpus filed under 28 U.S.C. § 2254. Pro se petitioner James Richard Ream (“Ream”) filed objections to the R&R. (Doc. No. 32 [“Obj.”].) Pursuant to Fed.R.Civ.P. 72(b)(3), the Court has conducted its de novo review of the matters raised in the objections. For the reasons discussed below, the R&R is accepted and the petition is dismissed.


         On November 17, 2011, an Allen County, Ohio grand jury issued an indictment charging Ream with one count of murder (Ohio Rev. Code § 2903.02(A)), with a fire specification, for the murder of his brother, Ron. Ream entered a plea of not guilty. (Doc. No. 11 [“Answer”] Ex. 1.) Subsequently, Ream moved to plead not guilty by reason of insanity, and requested a competency evaluation (id. Exs. 2-4); both motions were granted by the trial court (id. Exs. 5-6).

         Ream moved to suppress statements that he had made to law enforcement officers between October 18-20, 2011, arguing that there was no knowing, intelligent, or voluntary waiver of his constitutional rights prior to any alleged statements, and that he had not been informed of his “Miranda rights.” (Id. Ex. 7.) Following a hearing, the motion was denied. (Id. Ex. 10.)

         Ream also moved the trial court for funds up to $5, 000 to hire a forensic psychologist to evaluate his competency to stand trial and his mental state at the time of the offense. (Id. Ex. 11.) The trial court allowed $3, 000 (id. Ex. 12), and Dr. Matthew Ziccardi was retained. After a hearing on July 9, 2012, based on Dr. Ziccardi's report, Ream withdrew his motion to determine competency and his not-guilty-by-reason-of-insanity plea. (Id. Ex. 13.)

         The State then moved, with opposition from Ream, to exclude Dr. Ziccardi's testimony because his report failed to comply with Ohio Criminal Rule 16(k). (Id. Exs. 14-15.) Following a hearing, on August 7, 2012, the trial court granted the State's motion, finding that Dr. Ziccardi's testimony and methodology were unreliable, and would not be relevant with respect to any claim of self-defense. (Id. Ex. 16.) The trial court also denied Ream's oral motion to appoint new counsel. (Id. Ex. 17.)

         Before trial, Ream sought to exclude certain photographs of the victim, which the trial court denied. (Id. Ex. 18; Doc. No. 12-1 [“Trial Tr. Vol. 1”] at 815, 822-24, 826.)[1] He also requested a jury instruction on self-defense, which was granted. (Answer Exs. 19-20.)

         On August 15, 2012, a jury convicted Ream of murder with a firearm specification. (Id. Ex. 21.) He was sentenced to fifteen years to life imprisonment for the murder and three years for the firearm specification, to be served consecutively. (Id. Ex. 22.)

         The R&R sets forth the entire factual background of the case, quoting extensively from the summary of the facts as set forth by the state appellate court on direct review. These factual determinations are presumed correct, unless Ream rebuts them by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). As near as the Court can tell from the objections filed by Ream, [2] he is not challenging these underlying factual findings, which the Court repeats here for context.

{¶ 31} The trial of this matter commenced on August 12, 2012 and ended on August 15, 2012. The State's first witness was Rex Whetstone, Ron's former neighbor and good friend. On direct examination, Whetstone testified that Ron was recently retired and that before his retirement he had suffered from health problems. Specifically, Ron had been diagnosed with prostate cancer and had to have a surgery to remove his cancer. Despite having this surgery, Ron would still golf with Whetstone one to two times a week.
{¶ 32} Whetstone testified as to Ream's and Ron's relationship over the past six years. According to Whetstone, Ream lived with Ron, and Ream would occasionally mow the yard and do landscaping. But, Ream did not contribute to the household expenses and rarely was able to keep a job while living with Ron. Whetstone further testified that Ron owned two cars and let Ream drive one of them. Whetstone was also able to comment on Ream's spending habits and revealed that Ream spent much of his money on lottery tickets. Whetstone stated that in his six years of knowing the two brothers, he never saw them get in a physical confrontation.
{¶ 33} Whetstone then testified in regard to events he witnessed on October 17, 2011. Whetstone stated he was having relationship troubles with his significant other and decided to go to Ron's for the night. Around 10:00 p.m., Whetstone arrived at 1240 Fairgreen and noticed that all the lights were off, and the only light coming from the house was from the TV. Whetstone also observed that only Ron's car was in the driveway, and that the car Ream usually drove was not there.
{¶ 34} As Whetstone approached the door he saw Ron lying on the floor with a blanket on top of him. Whetstone testified that he knocked on the door, but Ron did not wake up. Whetstone did not think this was unusual as Ron was hard of hearing. Whetstone then proceeded to call both Ron's and Ream's cell phones, but got no answer. Then Whetstone walked to the back of 1240 Fairgreen, hoping the back door would be unlocked. However, the back door was also locked, and Whetstone tried knocking again. Around 10:30 that night, Whetstone decided to leave.
{¶ 35} On cross-examination, Whetstone testified that after Ron's prostate surgery, Ron experienced discomfort and some pain. Ron also could not complete many of the chores around the house. Ream helped Ron with these chores for the time he was recovering from his surgery. Whetstone also testified that Ream always did the landscaping and yard work for Ron. Further, Whetstone admitted that Ron liked to drink beer and smoke marijuana on a daily basis.
{¶ 36} The State then called Megan Mays, an employee of a local gas station, to testify. Megan testified that Ream often came to the gas station to buy lottery tickets. According to Megan, she learned that Ream was accused of killing Ron the day after the shooting occurred. Megan thought this was strange, as Ream had come into the gas station the previous evening. Megan testified she left work about 10:10 p.m. on October 17, 2011 and saw Ream come into the station as she was leaving.
{¶ 37} Deputy Jerry Cress of the Allen County Sheriff's Office was the next witness to testify. Deputy Cress testified that he was on duty on October 18, 2011. Around noon, Deputy Cress was in the parking lot of the Sheriff's Office, placing some items in his police cruiser when Ream approached him. According to Deputy Cress, Ream asked him if he was on duty and if he had jurisdiction in Shawnee Township. When Deputy Cress replied that he did have jurisdiction, Ream told Deputy Cress to arrest him. Deputy Cress then asked Ream why he needed to be arrested, and Ream told Deputy Cress that “he had got[ten] into a situation that he couldn't get out of and he shot his brother.” Trial Tr., p. 367.
{¶ 38} According to Deputy Cress, Ream's demeanor was calm but upset. Deputy Cress took Ream down to the booking area where he met with his supervisor and spoke with the Shawnee Township Police Department. Ream gave Deputy Cress his keys and gave him verbal permission to enter 1240 Fairgreen. When Deputy Cress arrived at the crime scene, Shawnee Township police officers were already there and told Deputy Cress that they found a deceased body in a bedroom.
{¶ 39} On cross-examination Deputy Cress admitted that Ream was very cooperative throughout the booking process. Deputy Cress also stated that the officers kept a close eye on Ream because they were unsure of his mental health.
{¶ 40} Sergeant Gregory Crites of the Allen County Sheriff's Office then testified as to his role in the investigation. Sergeant Crites testified that he was on duty on October 18, 2011. Around noon that day, Sergeant Crites met with Deputy Cress and Ream in the holding area. According to Sergeant Crites, Ream admitted to killing his brother, Ron. Sergeant Crites then asked Ream how he had killed his brother, and Ream replied that he had shot him. Sergeant Crites then testified that Ream told him that he shot his brother because “[Ream] had a number of good jobs and [Ream] lost them because [he] was taking care of [his] brother [Ron] because he has-has cancer.” Trial Tr., p. 381, Sergeant Crites further indicated that Ream said that “[he] just can't take it anymore.” Id. at p. 383.
{¶ 41} Sergeant Fred Depalma of the Allen County Sheriff's Office was the next witness to testify. Sergeant Depalma was called to respond to 1240 Fairgreen and assisted with the scene's processing. Sergeant Depalma took various pictures of the crime scene, which were subsequently offered into evidence. After taking pictures of the crime scene, Sergeant Depalma testified that he examined a recliner chair, which had blood spatters on it but found no bullet holes in the recliner. He then went to the bedroom where Ron's body was located. Sergeant Depalma testified that there were smear patterns on the floor from where the deceased body was dragged to the bedroom. He then testified that he found the body, faced down, with a multicolored blanket over him and a kitchen knife on top of the blanket. Further, Sergeant Depalma stated that he found Ron with cloth material tied around his wrist, and a rope tied around the cloth material.
{¶ 42} Sergeant Depalma then testified that he collected a total of five shell casings from inside 1240 Fairgreen. Once the coroner arrived on scene, Ron's body was examined further. Sergeant Depalma noticed a bullet hole in Ron's chest and a remote control underneath his body that appeared to have been dragged with the body.
{¶ 43} Ashley Magrum, Ron's next door neighbor, was the next witness to testify. Magrum testified that around 9:20 p.m., on October 17, 2011, she was outside her house smoking a cigarette. At that time she heard loud, multiple “bangs.” Trial Tr., p. 478. Magrum testified that these loud bangs were not in sequence, rather they were in groups. According to Magrum, she heard at least five bangs coming from 1240 Fairgreen. Magrum thought that somebody was working on their house, and at first, did not believe they were gun shots.
{¶ 44} On cross-examination, Magrum testified that it all happened very quickly, and from hearing the first sound to the last sound was about two minutes. She testified that 60 to 90 seconds elapsed from hearing the first group of shots to the second group of shots. Further, Magrum testified that she does not know for sure whether the noises were gunshots, but assumed that they were.
{¶ 45} Next to testify was Todd Wharton, a forensic scientist for the Bureau of Criminal Identification and Investigation (“BCI”). Wharton testified that the gun, which Ream handed over to police, was a .45 caliber Smith and Wesson pistol and was semiautomatic. He explained that when one pulls the trigger of a semiautomatic pistol it will only fire one bullet. Wharton testified that he tested Ream's gun for two purposes: (1) to test the casings and bullets found at the crime scene; and (2) to determine whether Ream's gun was in proper working condition. Wharton testified that Ream's gun worked properly and that the casings and recovered bullets matched his test casings and bullets from Ream's .45 Smith and Wesson pistol.
{¶ 46} Wharton also testified that he tested casing and bullet fragments that police officers recovered from a fire ring at 1240 Fairgreen. These bullets and casings were damaged after being placed in a fire. Wharton testified that he compared the tested bullets and casings to the damaged bullets and casings discovered in the fire ring and found that there were some matching individual barrel engraved striations, but not enough for a positive identification. Wharton elaborated on how the bullets and casings were damaged. Wharton stated that some of the bullets were missing its core so only the jacket was intact. Further, the jacket was a darker color which is consistent with the bullet being placed in a fire.
{¶ 47} The next witness to testify was Daniel Davison, another forensic scientist for BCI, who works in the Trace Evidence Section. Davison explained that trace evidence includes, among other things, fiber analysis. When dealing with fiber analysis, Davison testified that he usually compares a fiber whose origin is unknown to a known fiber to determine whether they match. Davison was given several pieces of wood from the floor of 1240 Fairgreen with unknown fibers attached to it. Davison was also given the shirt Ron was wearing the night of the shooting, to compare the fibers found in the wood. Davison was able to conclude that the synthetic fibers found in the wood, were consistent with the fibers found in the shirt. Further, Davison testified that what he found was consistent with a bullet going through the collar of the shirt and depositing the fiber in the hole of the wood.
{¶ 48} Detective Baker was the next witness to testify. Detective Baker testified that Ream never stated he sustained injuries on October 17, 2011. Further Detective Baker testified that he read Ream his Miranda rights, and Ream chose to waive those rights. Detective Baker played Ream's two police interviews for the jury. The two police interviews produced the following relevant evidence.
{¶ 49} Throughout the two interviews, Ream criticized Ron, calling him lazy, an ex-con, Dr. Jekyll and Mr. Hyde, and gross. Ream also described Ron as having a violent temper and always picking fights with Ream.
{¶ 50} Ream described what happened on October 17, 2011. According to Ream, he had an argument with Ron and Ron decided to kick Ream out of 1240 Fairgreen. As Ream was leaving with a pile of his clothes and his gun case, Ron lunged at Ream with a kitchen knife. Ream stated that after Ron lunged at him, he pulled out the gun from the gun case and shot Ron. Ream mentioned on several occasions that he feared for his life and believed Ron was going to stab him. Throughout the two interviews, Ron [sic] mentioned how he “blanked out” and could not remember all of the details surrounding the shooting. Ream then told Detective Baker that he cleaned up the blood on the floor so that the police would not track around blood when they arrived at 1240 Fairgreen. Further, Ream stated that after he shot Ron, Ron started to make gurgling noises so he decided to drag Ron to the bedroom.
{ΒΆ 51} Ream mentioned that he went to McDonalds around 5 or 6 a.m. on October 18, 2011. Ream contacted his son and daughter that morning, giving them some of his possessions. When asked why Ream did not call 911 immediately after the shooting, Ream replied that he was in shock and assumed the neighbors had already called 911. Ream also told Detective Baker that he has suffered from mental problems and had been admitted to a ...

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