Stepp v. Jackson

Filing 21

ORDER adopting Report and Recommendations re [14, 16 & 19]; Objections are overruled; The petition is denied; A certificate of appealability will issue. Petitioner is granted leave to appeal IFP. Signed by Judge Sandra S Beckwith on 11/14/11. (mb)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION
Brian T. Stepp,

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Petitioner,
vs.
Warden, Warren Correctional
Institution,
Respondent.

Case No. 1:10-cv-282

ORDER
Before the Court are Petitioner’s objections to the Report
and Recommendation of the Magistrate Judge.

(Doc. 15)

The

Magistrate Judge has recommended that this Court dismiss Stepp’s
petition for a writ of habeas corpus with prejudice.

(Doc. 14)

The Magistrate filed a Supplemental Report and Recommendation
responding to Stepp’s objections (Doc. 16), and a Second
Supplemental Report responding to Stepp’s objections to the
supplemental report.

(Doc. 19)

Stepp has lodged his objections

to the Second Supplemental Report, and this matter is ripe for
decision by this Court.
FACTUAL BACKGROUND
Stepp was convicted by a jury of kidnaping and raping three
women, one of whom was Carrey Tidmore.

There was no scientific

evidence linking Stepp to Tidmore’s rape, such as DNA, hair or
fiber samples.

Tidmore admitted at Stepp’s trial that in
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November 2003, she supported herself and her narcotics addiction
by prostitution.

She had been engaging in prostitution for

almost twenty years prior to Stepp’s February 2007 trial.
Tidmore testified that one night in November 2003, she was
on the street looking “to turn a trick” (to secure a customer).
She got in a car with a man who stopped, and the man drove fast
and would not answer her question about what service he wanted to
purchase.

He pulled out a badge and told her she was under

arrest for prostitution.

He also displayed a gun, and drove into

the parking lot of a local police station.

Tidmore told the man

that rather than perform a sexual favor for him as he suggested,
she would submit to being arrested.
field and forced her to have sex.

The man then drove to a

He then handcuffed her, took

her to a house and assaulted her again.
gas station and left her there.

Later, he drove her to a

The gas station clerk offered to

call the police, but she refused because she was on probation and
knew she would receive jail time for prostitution.

She testified

that she went to a friend’s house and took drugs after this
incident.
On November 10, Tidmore admitted to her probation officer
that she had been using cocaine.

She knew this would result in a

probation violation and another jail sentence.
report the rape to her probation officer.

She did not

Later that day, she

went to a local emergency room and was interviewed by rape

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counselors.

She testified on direct that she went to the

hospital two days after the rape, but on cross she admitted that
the medical records contained her statement that the rape
happened five days prior to her visit.
rape to the police at that time.

She did not report the

She was arrested on the

probation violation and sent back to jail on or about November
20, where she apparently remained until sometime in January or
February 2004.

It was not until mid February 2004 that she told

a Butler County Sheriff’s deputy about the rape.

She testified

that she was questioned by police about an ongoing, unrelated
murder investigation, and revealed the rape to them.

She

described her rapist as a “white, thin male, with light hair,
drove a red four-door car.”

(Doc. 8, TR at PAGE ID 487)1

Tidmore said that she had been tormented by the experience since
it happened.

(TR at PAGE ID 485)

A few days later, a deputy

showed her some photographs and she identified Stepp as her
attacker.

She also described the house to which he had taken her

that night.
On cross-examination by Stepp’s trial counsel, Tidmore
admitted to a string of previous convictions for theft,
falsification, and failure to comply with police officers.

She

was on probation for three different felony convictions in

1

The Court will use the CM/ECF PAGE ID references to the
trial transcript, because the original pagination is thrown off
by the manner in which the transcript was compiled and filed.
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November 2003, and admitted she concealed her prostitution from
her then-boyfriend.

She claimed that she had been drug-free for

a year, but she was confronted with the fact of several positive
cocaine tests in August and September 2003.

Counsel reviewed at

some length the many inconsistencies in the story she gave to the
hospital rape counselors in November 2003, her several statements
to the police, and her testimony to the jury.

Stepp’s counsel

also demonstrated that Tidmore had been jailed with the other
complaining witnesses during January and February, both before
and after Tidmore identified Stepp in the photo lineup.
Counsel then asked Tidmore why her probation officer had not
violated her probation for the series of failed drug tests in
August and September 2003.

(TR at PAGE ID 520)

The trial court

sustained the prosecutor’s objection to that question, and at a
sidebar conference, Stepp’s counsel argued that he had evidence
that Tidmore was having a sexual relationship with her probation
officer that summer.

Counsel claimed that Tidmore traded sexual

favors with the probation officer to avoid returning to jail on a
probation violation.

Counsel’s theory was that after her

probation was revoked in November, Tidmore lacked “leverage” with
which to get out of jail and return to using drugs, so she made
up the rape allegation in order to present herself to the police
and/or her probation officer as a sympathetic victim.

The

prosecutor told the trial court that the probation officer in

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question had been disciplined (and perhaps fired), but that the
proposed testimony fell within Ohio’s rape shield law.

The trial

court initially responded that this evidence had not been brought
to its attention previously, and that “if counsel knew that [he]
was going into this, counsel had a duty to raise this at a rape
shield hearing prior to this trial. ... There has been no motion
brought before the Court as is contemplated by the rules. ... I
believe [the evidence] clearly falls under rape shield, and on
that basis I am going to sustain the objection.”

(TR at PAGE ID

523) The jury ultimately convicted Stepp on three counts of rape,
and he was sentenced to an aggregate term of fifty-five years.
Stepp raised several assignments of error in his direct
appeal from his conviction, including Assignment of Error III:
Trial counsel provided constitutionally
ineffective assistance of counsel when he
failed to raise evidence that clearly fell
within the rape shield law in a pretrial
motion. The trial court violated Brian
Stepp’s right to confrontation when it
excluded relevant impeachment evidence.
Stepp argued that the excluded evidence was crucial to prove his
theory that Tidmore fabricated the rape story, and its exclusion
violated his right to confront Tidmore.

He also argued that the

trial court’s remarks suggested that the court would have
considered the evidence and admitted it if Stepp’s counsel had
timely raised the issue, which Ohio’s rape shield law requires.
The Ohio Court of Appeals rejected this argument.

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Applying the

standards set forth in Strickland v. Washington, 466 U.S. 668
(1984), the Court of Appeals found that the evidence at issue
would have clearly violated the rape shield law, Ohio Rev. Code
2907.02, barring evidence of specific instances of the victim’s
sexual activity, and that the evidence did not fall within any
exception to that statutory bar.

This conclusion would support a

finding that his trial counsel’s failure to raise the issue prior
to trial did not fall below an objective standard of
reasonableness.
But Stepp also argued that his constitutional right to
confront witnesses outweighed the interests protected by the rape
shield statute.

The Court of Appeals found that the trial

court’s characterization of the evidence as a “distinct separate
incident” indicated the court’s opinion that the evidence had
little or no probative value.

The court noted:

... the point that Stepp's trial counsel was trying to
make, i.e., C.T. fabricated the allegation against
Stepp to regain "control" of the situation regarding
her probation after her affair with her former
probation officer was revealed, was a tenuous one, at
best, and therefore, it is unlikely the trial court
would have found, under these circumstances, that
Stepp's confrontation rights outweighed the interests
sought to be protected by this state's rape shield law.
[*P54] Moreover, it cannot be shown that there was
a reasonable probability that the outcome of Stepp's
trial would have been different had this evidence been
admitted. The evidence of Stepp's guilt was formidable
and, arguably, overwhelming. C.T.'s testimony was
corroborated by the other victims in the case, as well
as the evidence the police found as a result of
searching Stepp's residence, which included a red
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vehicle and a silver badge that matched C.T.'s version
of events. Also, the detectives who searched Stepp's
residence testified that the layout of Stepp's house
matched C.T.'s description of the house. C.T.'s
testimony was also corroborated by that of H.K. and
J.G., who testified that Stepp attacked them in a
similar fashion and around the same time period.
[*P55] When the state's evidence against Stepp is
viewed in its entirety, it is clear that the trial
court's exclusion of evidence regarding C.T.'s alleged
affair with her former probation officer did not change
the outcome of Stepp's trial, nor does it undermine our
confidence in the outcome of these proceedings.
Strickland, 466 U.S. at 694.
State v. Stepp, 2008 Ohio 4305, ¶¶53-55, 2008 Ohio App. LEXIS
3613, *18-19 (Ohio App. 12th Dist., August 25, 2008).

After

overruling Stepp’s other assignments of error, the Court of
Appeals affirmed his conviction.
Stepp’s habeas petition, filed on May 3, 2010, raises a
single ground for relief:
Trial counsel provided constitutionally ineffective
assistance of counsel when he failed to timely notify
the trial court of his intent to offer evidence covered
by Ohio’s Rape Shield statute. Counsel’s failure to
perform in an objectively reasonable manner caused
actual prejudice. Had Mr. Stepp been permitted to
confront his accuser, Ms. Carrey Tidmore, she would
have been discredited as a witness, and Mr. Stepp would
not have been convicted of the crimes that she alleged.
ANALYSIS
A federal court may issue a writ of habeas corpus to correct
an error in a state proceeding that resulted in petitioner’s
confinement, if that proceeding was rendered fundamentally unfair
by a violation of the Constitution or laws of the United States.

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Clemmons v. Sowders, 34 F.3d 352, 354 (6th Cir. 1994); 28 U.S.C.
§2254(a).
To establish ineffective assistance of counsel under
Strickland v. Washington, 466 U.S. 668 (1984), Morrison must show
that his attorney’s performance was deficient, and that the
deficiency prejudiced his defense such that the proceedings were
unfair and the result unreliable.

Id. at 687.

counsel’s performance is highly deferential.

Scrutiny of

Id. at 689-90.

To

satisfy the prejudice prong of the Strickland test, “[the]
defendant must show that there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the
proceeding would have been different. ...

A reasonable

probability is a probability sufficient to undermine confidence
in the outcome.”

Id. at 698.

As the Magistrate Judge notes, the Ohio Court of Appeals did
not directly address Stepp’s counsel’s deficient performance.
But that court specifically concluded that admission of the
evidence of Tidmore’s sexual relationship with her probation
officer would have violated Ohio’s rape shield law.

Thus, even

if the issue had been timely raised before trial, or if counsel
had demonstrated good cause for not raising it sooner (thus
negating any deficient performance), the evidence would have been
inadmissible.

Stepp arguably cannot demonstrate that his

counsel’s performance was deficient due to his failure to seek

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admission of statutorily inadmissible evidence.
Even if counsel’s failure to properly seek admission of the
evidence fell below the objectively reasonable standard, the
Court of Appeals also found that the evidence would not have
affected the outcome of Stepp’s trial, a conclusion the
Magistrate Judge shares.

Tidmore’s description of her encounter

with Stepp was remarkably consistent with the testimony of the
two other complaining witnesses, both of whom were also
prostitutes.

Both of those witnesses said Stepp was driving a

red car, and both testified that Stepp was impersonating a police
officer.

He displayed a badge to one of the other victims as he

had done with Tidmore.
was accurate.

Tidmore’s description of Stepp’s house

Moreover, Stepp’s counsel engaged in an extensive

impeachment of Tidmore, stressing her prior convictions, her many
inconsistent statements about the rape and her failure to timely
report it, her drug addiction, her exposure to another
complaining witness, and several periods of incarceration.

It is

extremely unlikely that the jury would have been convinced to
disregard her testimony if they learned that she had sex with her
former probation officer.
The Court agrees with the Magistrate Judge’s observation
that Stepp’s theory regarding Tidmore’s motive is tenuous at
best.

Stepp summarizes his position by arguing that “... had

that testimony been admitted, the jury would not have accepted

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the testimony of Ms. Tidmore as true because the jury would have
understood that Ms. Tidmore would do anything to curry favor with
the police.”

(Doc. 17 at 8)

After she reported her cocaine

use, Tidmore remained in jail from November 20, 2003 through
sometime in January or February 2004.

There is no evidence in

the record suggesting that she was let out of jail early or
treated more favorably because she was a rape victim, or because
she disclosed the rape to the police in February rather than when
it happened during the previous November.

Stepp’s theory of

Tidmore’s motive assumes that other law enforcement personnel
would engage in the same sort of unethical, outrageous conduct
that Tidmore’s former probation officer apparently engaged in, an
assumption that is completely unsupported by any facts in the
record.
Stepp also contends that the trial court’s ruling violated
his Sixth Amendment Confrontation Clause rights.
presented to and decided by the state court.

This claim was

Although this

constitutional claim is not presented as a separate ground for
relief in Stepp’s petition, the issue is entwined with his
arguments concerning ineffective assistance of counsel.

Both

parties presented extensive arguments on the issue, and the
Magistrate Judge addressed it on the merits.
This Court must determine if the Ohio Court of Appeals
judgment with respect to Stepp’s confrontation rights was an

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objectively unreasonable application of clearly established
federal law, pursuant to 28 U.S.C. §2254(d)(1).

Stepp’s traverse

brief argues:
Since 1974, the Supreme Court has ruled in
substantially similar circumstances, that
when the evidence would have established an
ulterior motive, the state’s interest must
yield to the defendant’s right to confront
his accuser. Olden v. Kentucky, 488 U.S. 227
(1988); Alaska v. Davis, 415 U.S. 308
(1974)[sic]. See Boggs v. Collins, 226 F.3d
728, 737, 740 (6th Cir. 2000) (listing cases
and stating that when cross examination would
reveal witness bias or prejudice, the trial
court is constitutionally compelled to allow
the examination).
(Doc. 10 at 13)

In Davis v. Alaska, 415 U.S. 308 (1974), the

defendant was charged with burglary of a safe that was stolen
from a bar.

He was prohibited from cross-examining the critical

witness against him (the stolen safe had been found on this
witness’s property) about the witness’s juvenile record and
current probation status, based on a state statute protecting
juvenile proceedings.

The witness had two prior juvenile

burglary convictions and was still on probation at the time.

The

defendant argued that the witness was biased and had a motive to
lie, because he was afraid the police would blame him for the
burglary.

The Supreme Court held that the trial court’s limit on

cross-examination violated defendant’s confrontation rights:
While counsel was permitted to ask Green [the
witness] whether he was biased, counsel was
unable to make a record from which to argue
why Green might have been biased or otherwise
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lacked that degree of impartiality expected
of a witness at trial. On the basis of the
limited cross-examination that was permitted,
the jury might well have thought that defense
counsel was engaged in a speculative and
baseless line of attack on the credibility of
an apparently blameless witness or, as the
prosecutor's objection put it, a "rehash" of
prior cross-examination. On these facts it
seems clear to us that to make any such
inquiry effective, defense counsel should
have been permitted to expose to the jury the
facts from which jurors, as the sole triers
of fact and credibility, could appropriately
draw inferences relating to the reliability
of the witness.
Id. at 318.
The Sixth Circuit applied Davis and its progeny in Boggs v.
Collins, 226 F.3d 728 (6th Cir. 2000), in an appeal from a rape
conviction in which the trial court excluded evidence that the
complaining witness made a prior false rape accusation.

After

reviewing other appellate decisions, the court held: “When faced
with alleged prior false accusations of rape, federal courts have
adhered to the fine line drawn in Davis and Van Arsdall,2 finding
cross-examination constitutionally compelled when it reveals
witness bias or prejudice, but not when it is aimed solely to
diminish a witness’s general credibility.”

Boggs, 226 F.3d at

737.3

2

Delaware v. Van Arsdall, 475 U.S. 673 (1986).

3

The Sixth Circuit has questioned the bright line drawn in
Boggs between bias and prejudice on the one hand, and a witness’s
general credibility. See Vasquez v. Jones, 496 F.3d 564, 572574, 6th Cir. 2007), where the court granted habeas relief after
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Distilling these relevant authorities, the Magistrate Judge
found that there is no constitutionally-protected confrontation
right to admit evidence of a “completely implausible theory of
motive.”

(Doc. 14 at 17)

Stepp did not raise consent as a

defense to the rape charge, nor did he articulate a typical
motive for Tidmore to lie such as protecting someone else or
trying to hide something unfavorable about her own life, the
problems of which she was extensively and effectively crossexamined.

This Court also notes that in his closing argument,

Stepp’s counsel presented his theory that Tidmore (and the two
other complainants, both of whom were also prostitutes with
criminal histories) concocted her story about Stepp in order to
curry favor with the police.
argument.

The jury obviously rejected Stepp’s

This Court cannot conclude that evidence about

Tidmore’s rogue probation officer’s conduct in accepting sexual
favors in exchange for ignoring her failed drug tests would have
effectively bolstered his argument.

the state court admitted an unavailable prosecution witness’s
hearsay testimony from the preliminary hearing, but did not
permit defendant to impeach that witness with his criminal
history. However, Vasquez distinguished Boggs because it was a
rape shield case, noting the legitimate state interest in such
laws. The court also distinguished Boggs on its facts because
the trial court had permitted extensive cross-examination of the
complaining witness, and had only excluded the past false rape
allegations. Vasquez observed that Boggs “is better seen as a
case about the court's broad discretion to limit the scope of
cross-examination to prevent undue harassment and the like.”
Vasquez, 496 F.3d at 574.
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In any event, if there was a confrontation clause violation,
it would be subject to harmless-error review.
Arsdall, 475 U.S. at 684.

Delaware v. Van

The Court must determine whether the

error “had [a] substantial and injurious effect or influence in
determining the jury’s verdict.”

Brecht v. Abrahamson, 507 U.S.

619, 623 (1993), quoted in Ruelas v. Wolfenbarger, 580 F.3d 403,
411 (6th Cir. 2009).

“If the matter is so evenly balanced that

this Court has grave doubt as to the harmlessness of the error,
it should treat the error, not as if it were harmless, but as if
it affected the verdict...”.

Vasquez v. Jones, 496 F.3d 564, 575

(6th Cir. 2007) (internal citations and quotations omitted).
The Magistrate Judge concluded that any confrontation error
was harmless.

He cited the strong corroboration of Tidmore’s

testimony by the other complainants, and her ability to
accurately describe the house where she was raped.

The police

found a badge and a red car when they searched Stepp’s house.
These factors were also cited by the Ohio Court of Appeals in
rejecting Stepp’s ineffective assistance of counsel claim,
concluding that the admission of the evidence at issue would not
have changed the outcome of the trial.
The Supreme Court has identified several factors the Court
should consider in assessing harmlessness, including “the
importance of the witness'[s] testimony in the prosecution's
case, whether the testimony was cumulative, the presence or

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absence of evidence corroborating or contradicting the testimony
of the witness on material points, ... and, of course, the
overall strength of the prosecution's case."
Arsdall, 475 U.S. at 684.

Delaware v. Van

While the importance of Tidmore’s

testimony to the prosecution is clear, the excluded evidence of
her relationship with the probation officer was not critical to
the case against Stepp.

Indeed, the trial court considered the

matter “a distinct separate incident.”

(TR at PAGE ID 523)

The

testimony was not cumulative, but its relevance to either the
charges or to Stepp’s defense is extremely tenuous.

And the most

important factor in this case, as the Ohio Court of Appeals
concluded, is the overall strength of the prosecution’s other
evidence against Stepp.
This Court must conclude, after fully considering the record
and Stepp’s arguments, that any error in excluding the evidence
in question was harmless.

For the same reasons, the Court finds

that any deficient performance by Stepp’s trial counsel did not
affect the outcome of his trial.
Stepp has also objected to the Magistrate Judge’s filing of
supplemental reports and asks that both of them be stricken.

He

argues that the General Order of Reference for the Dayton
division conflicts with the statutory limits on a magistrate
judge’s authority, and usurps the exclusive jurisdiction of this
Court to review de novo a magistrate judge’s recommendations.

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This Court finds nothing in the General Order of Reference, or in
the issuance of a supplemental report, that obviates or
interferes with this Court’s duty to conduct a de novo review of
objections raised by a petitioner.4

The Court also notes that

the supplemental report was filed in part to respond to Stepp’s
objection that the Magistrate Judge had treated his ineffective
assistance and confrontation clause claims separately.

Stepp’s

request to strike the supplemental reports is therefore denied.
CONCLUSION
As required by 28 U.S.C. §636(b)(1)(C) and Federal Rule of
Civil Procedure 72(b), the Court has conducted a de novo review
of the record in this case.

Upon such review, the Court finds

that Stepp’s objections to the Magistrate Judge’s original and
his Supplemental Reports are not well taken, and his objections
are therefore overruled.

The Court denies the petition for a

writ of habeas corpus.
The Court finds that a certificate of appealability should
issue with respect to Stepp’s petition, because reasonable
jurists would find it debatable whether his claim should be
resolved in a different fashion, and whether the issue he
presents is adequate for further proceedings.

4

Miller-El v.

Stepp raises a number of potentially prejudicial scenarios
that might result if a petitioner fails to timely object to a
supplemental report. None of those possibilities have occurred
here, and the Court need not address such speculative scenarios.
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Cockrell, 537 U.S. 322, 336 (2003).
The Court certifies, pursuant to 28 U.S.C. §1915(a)(3) that
an appeal of this Order would be taken in good faith, and grants
Stepp leave to appeal in forma pauperis upon a showing of
financial necessity.

See Kincade v. Sparkman, 117 F.3d 949, 952

(6th Cir. 1997).
SO ORDERED.
THIS CASE IS CLOSED.
DATED: November 14, 2011

s/Sandra S. Beckwith
Sandra S. Beckwith
Senior United States District Judge

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