Kennedy v. Coleman
REPORT AND RECOMMENDATIONS - It is respectfully recommended that the Petition be DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this conclusion, Petitioner should be denied a certificate of appealability and the Court should certify to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 1/12/2017. Signed by Magistrate Judge Michael R. Merz on 12/29/2016. (kpf)(This document has been sent by regular mail to the party(ies) listed in the NEF that did not receive electronic notification.)
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
- vs -
Case No. 1:15-cv-684
District Judge Sandra S. Beckwith
Magistrate Judge Michael R. Merz
JOHN COLEMAN, Warden,
Toledo Correctional Institution,
REPORT AND RECOMMENDATIONS
This is a habeas corpus case under 28 U.S.C. § 2254. The Petition was filed in the
Northern District of Ohio and transferred to this Court by Magistrate Judge Kathleen Burke after
the Return of Writ was filed (Transfer Order, ECF No. 11). After transfer, the case was assigned
to Magistrate Judge Karen Litkovitz who granted Petitioner permission to file an Amended
Traverse (Order, ECF No. 15). Earlier this month, the case was transferred to the undersigned as
part of an effort to balance the workloads of Magistrate Judges in the Western Division (ECF
No. 21). The case is ripe for decision on the Petition (ECF No. 1), the Return of Writ and State
Court Record (ECF Nos. 7, 8), and the Amended Traverse (ECF No. 20).
Petitioner pleads the following grounds for relief:
Ground One: The trial court erred as a matter of law by allowing
the state to introduce hearsay statements which violated appellant's
right to a fair trial and his right to confront his accusers in violation
of Federal Law and his Constitutional rights.
Supporting Facts: Because "hearsay" under Rules of Evidence,
Rule 80l(C), is rarely admissible at trial to prove or disprove facts
relevant to material issues in the case, the Petitioner would argue
that the trial court impermissably [sic] allowed Officer Schultz to
testify as to what Mr. Stuckey said about who shot him, that his
statement was not a dying declaration”· under the exception to the
hearsay rule codified in Evid.R. 804(8)(2) because he his
statements were not made under a "sense of impending death", and
therefore should not have been permitted under the law.
Ground Two: The trial court erred as a matter of law by
overruling appellant's motion for relief from prejudicial joinder,
denying the Petitioner of a fair trial.
Supporting Facts: The Petitioner was charged with two or more
offenses in his indictment; however, they were not all of the same
or similar character, based upon the same act or transaction, based
on two or more acts connected together or constituting parts of a
common scheme or plan or part of a course of criminal conduct.
This violates Ohio Crim.R. 8(A). Also, assuming one of these
factors do apply, if it appears that a defendant or the State will be
prejudiced by such joinder, the court shall order separate trials or
provide such other relief as justice requires, pursuant to Crim.R.
Ground Three: The trial court erred as a matter of law be [sic]
permitting other acts testimony into evidence thus prejudicing
appellant’s right to a fair trial.
Supporting Facts: In this case, Mr. Johnson, a witness for the
State, was permitted to testify that Petitioner bragged to him about
being a serial killer and having "bodies on his belt." This testimony
was prejudicial and not relevant to prove Appellant's guilt.
Therefore, because Ohio Evidence Rule 404(B) does not permit
evidence of other crimes, wrongs or acts to be admissible to prove
character of the person in order to show that he acted in conformity
therewith the Petitioner's rights to a fair trial were violated.
Ground Four: The evidence was insufficient as a matter of law to
sustain appellant’s convictions.
Supporting Facts: The Petitioner asserts that the convictions
were not based on sufficient evidence as a matter of law, and any
reasonable trier of fact could not have found him guilty beyond a
reasonable doubt. The State, in this matter, failed to prove beyond
a reasonable doubt that he committed these offenses. There was no
physical evidence linking him to any of the scenes nor was there
any eyewitness testimony. The only evidence presented by the
State to implicate Mr. Kennedy as the shooter was testimony of
five convicted felons, several of whom were serving time for
violent offenses, and all of whom had something to gain by their
testimony. The testimony was all based on alleged statements
made by the Petitioner to these witnesses. There was also
insufficient evidence to prove beyond a reasonable doubt that Mr.
Kennedy purposely caused the death of the victims.
(Petition, ECF No. 1.)
Mr. Kennedy was indicted by a Hamilton County grand jury on fifteen counts, including
two counts of aggravated murder, four counts of murder, four counts of felonious assault, four
counts of having weapons under disability and one count of aggravated robbery. All counts had
firearm specifications except the four counts of having weapons under disability. Because the
offenses arose from separate incidents, Kennedy sought their severance, which was denied. He
was found guilty on all counts and specifications and sentenced to two terms of life
imprisonment without the possibility of parole.
With the assistance of new counsel, Kennedy appealed to the First District Court of
Appeals raising five assignments of error:
1. The trial court erred as a matter of law by overruling appellant’s motion for relief from
2. The trial court erred as a matter of law by allowing the state to introduce hearsay statements
which violated appellant’s right to fair trial.
3. The trial court erred as a matter of law by permitting other acts testimony into evidence thus
prejudicing appellant’s right to a fair trial.
4. The evidence was insufficient as a matter of law and/or against the manifest weight of the
evidence to sustain appellant’s convictions.
5. The trial court erred as a matter of law by improperly sentencing appellant.
The First District overruled the assignments of error except for a remand for proper
findings for consecutive sentences, an issue not before this Court. State v. Kennedy, 2013-Ohio4221, 998 N.E.2d 1189, 2013 Ohio App. LEXIS 4431 (1st Dist. Sep 27, 2013), appellate
jurisdiction declined, 138 Ohio St. 3d 1414 (2014). In its opinion, the First District found the
following background facts from the evidence presented at trial:
A. Gambling-Apartment Shootings
[*P3] In the early morning of March 27, 2006, Janie Matthews,
known as "Bedrock," Rodney Turnbow, Derrick Dumas, and
others were playing cards for money in Matthews's second-floor
apartment in the Walnut Hills area of Cincinnati. According to
Dumas, Jaydee Thompson had participated in the game earlier in
[*P4] About 30 minutes after Thompson left, at least two armed
and masked male assailants entered Matthews's apartment
building. One of the assailants knocked on Matthews's door. After
Matthews had partially opened the door, he shot her with a 9-mm
semiautomatic weapon and forced his way in. He then fired at
Turnbow with the same gun, striking him in the head, and robbed
everyone inside the apartment, including Dumas.
[*P5] Later, as the assailants fled down the stairs of the apartment
building, they encountered Deandre Thomas. Thomas recognized
Thompson as one of the assailants, and Thompson shot Thomas in
[*P6] When the police arrived, they found Matthews just inside the
apartment, near the door, and Turnbow nearby. Both died as a
result of their gunshot wounds. The police found Thomas on stairs
of the apartment building. He survived and identified Thompson as
the man who had shot him. Ballistic-test results on the cartridges
that the police found at the crime scene demonstrated that two
firearms had been used. The cartridges found inside Matthews's
apartment and just outside of her door had been fired from one
firearm, but the cartridges found in the stairwell on the ground
floor and on the steps had been fired from another.
[*P7] Several weeks after the shootings, Kennedy told Derrell
Anderson about "Bedrock's" shooting, when they were both
passengers in the car of man named Jaleel. Anderson and Jaleel
had picked up Kennedy from a parking lot in Walnut Hills and
were taking him to Burnet Avenue in Avondale because Kennedy
said he needed to escape from "guys" in the Walnut Hills
neighborhood who were after him because he had killed Matthews.
Kennedy explained to Anderson the details of the crime, including
that he had shot Matthews as she tried to shut the door on him, that
he had taken the gambling money, that he had shot another man
inside the apartment, and that "JayDee" had shot someone in the
face on the stairs.
[*P8] While in the Hamilton County Justice Center, Kennedy told
two inmates, Tobias Johnson, who knew Matthews, and Jermaine
Beard, about his role in the gambling-apartment shootings and
provided the details of the crime. Johnson testified that Kennedy
had told him that Thompson had been gambling at Matthews's
apartment, and that Thompson had set up the robbery, because he
owed Kennedy a favor for previously turning him onto a "lick."
Kennedy said that Matthews had come to the door after he
knocked on it, and that he had shot her when she tried to shut it. He
also admitted that he had shot Turnbow because he tried to run,
and that he had "robbed everybody." Kennedy credited his
accomplice Thompson with shooting a man in the face on the stairs
as they were leaving.
[*P9] Beard testified that Kennedy had told him that he had
pretended to be "JayDee" to enter a gambling apartment, that he
had shot the lady who opened the door when she tried to close it on
him, and that he had shot a man named "Rodney" and had taken
about $1500 from him.
B. Vine-Street Shootings
[*P10] On June 23, 2006, Dwayne Stuckey was shot on Vine
Street in the Over-the-Rhine area of Cincinnati. The shooting
began in the street, but ended inside a Cricket Store, which was
located next to a Kroger store. Stuckey was shot six times and
eventually died from his wounds. Phillip Simmons, a bystander on
the street, was injured by a stray bullet.
[*P11] Officer Shultz, on bike patrol nearby, heard the gunfire and
rushed to the scene. He approached Stuckey and asked him who
had shot him. After initially declining to answer, Stuckey
identified his shooter as "Midnight" and "Midnight from Burnet."
[*P12] Limited video surveillance from the Cricket Store captured
the image of the shooter, who appeared to be very dark
complected. When questioned by the police about the crime,
Kennedy, who was described as very dark complected,
acknowledged that his nickname was "Midnight." He also admitted
that Stuckey had previously robbed him. Kennedy was arrested in
October 2006 on Burnet Avenue. While in the justice center, he
told Major Paige that he had chased down and shot Stuckey on
Vine Street. Paige also learned from Kennedy that a stray bullet
had struck a bystander.
[*P13] Kennedy also admitted to shooting Stuckey to another
inmate, Dante Robb. According to Robb, Kennedy explained that
because Stuckey had robbed him a few days earlier, when he saw
Stuckey leaving a Kroger store, he started after him and shot at
him, striking both Stuckey and a bystander. Both Robb and Paige
testified at trial that they knew Kennedy as "Midnight."
State v. Kennedy, supra.
Respondent raises no procedural defense to the Petition, but defends on the merits
(Return, ECF No. 7, PageID 39-40).
Respondent argues that the first three grounds for relief raise only state law claims, rather
than federal constitutional claims. Federal habeas corpus is available only to correct federal
constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v.
Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982); Barclay v. Florida,
463 U.S. 939 (1983). "[I]t is not the province of a federal habeas court to reexamine state court
determinations on state law questions. In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or treaties of the United States."
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991).
Habeas relief may be available where a violation of state law “amounts to a fundamental
miscarriage of justice or a violation of the right to due process in violation of the United States
Constitution.” Cristini v. McKee, 526 F.3d 888, 897 (6th Cir. 2008), cert denied, 129 S. Ct. 1991
(2009). “State law errors may warrant habeas relief if the errors ‘rise for some other reason to
the level of a denial of rights protected by the United States Constitution.’”
Bradshaw, 622 F.3d 487, 495 (6th Cir. 2010), quoting Barclay v. Florida, 463 U.S. 939, 957-58
Conversely, when a state court decides on the merits a federal constitutional claim later
presented to a federal habeas court, the federal court must defer to the state court decision unless
that decision is contrary to or an objectively unreasonable application of clearly established
precedent of the United States Supreme Court. 28 U.S.C. ' 2254(d)(1); Harrington v. Richter,
562 U.S. 86, 131 S. Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v.
Cone, 535 U.S. 685, 693-94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000).
Ground One: Hearsay and Confrontation
In his First Ground for Relief, Kennedy alleges he was denied a fair trial and the right to
confront his accusers by admission of hearsay at trial, to wit, the statement by victim Dwayne
Stuckey identifying Kennedy as the person who shot him.
This was Kennedy’s second assignment of error on direct appeal and the First District
decided it as follows:
B. Dying Declaration
[*P37] In his second assignment of error, Kennedy contends that
the trial court erred by allowing Officer Schultz to testify as to
what Stuckey said about who had shot him, in violation of the rules
of evidence and in violation of his right, secured by the Sixth
Amendment to the United States Constitution, to confront
witnesses against him.
[*P38] Before we begin our analysis, we note that our record does
not contain Kennedy's written motion for the exclusion of the
evidence or the transcript from the evidentiary hearing on that
matter. Kennedy orally moved pretrial for the exclusion of
Stuckey's statements, claiming that they were inadmissible under
Evid.R. 804(B)(2), and that their admission would violate his right
of confrontation. He mentioned at that time that he had filed a
written motion, but he was apparently relying on the written
motion in limine filed in the dismissed case, which the trial court
had overruled after an evidentiary hearing upon a determination
that the statements were dying declarations. The trial court in this
case overruled the oral motion without holding a new evidentiary
hearing, based on the parties' summary of the evidence at the prior
hearing and their arguments. At that time, the state argued that the
court had correctly determined that Stuckey's statements to Officer
Schultz were "dying declarations," and that they thus fell under an
exception to the hearsay rule. Kennedy did not object to Officer
Schultz's testimony at trial.
[*P39] We address Kennedy's claim without deciding whether,
under these circumstances, Kennedy waived all but plain error.
And we review the assignment of error based on the record before
us, which does not contain Kennedy's written motion in limine or
the transcript of the evidentiary hearing in the dismissed case.
1. Evid.R. 804(B)(2)
[*P40] Evid.R. 804(B)(2) sets forth the hearsay exception for
"dying declarations." The rule provides that "a statement made by
a declarant, while believing that his or her death was imminent,
concerning the cause or circumstances of what the declarant
believed to be his or her impending death," is not excluded by the
hearsay rule in a prosecution for homicide or in a civil case, if the
declarant is unavailable as a witness.
[*P41] To fall under the hearsay exception set forth in Evid.R.
804(B)(2) for dying declarations, the evidence must show that the
deceased's statements were made under a sense of impending death
that excluded from the mind of the dying person all hope or
expectation of recovery. See, e.g., State v. Ray, 189 Ohio App.3d
292, 2010-Ohio-2348, 938 N.E.2d 378, ¶ 40 (8th Dist.); State v.
Washington, 1st Dist. Hamilton No. C-090561, 2010-Ohio-3175, ¶
21; State v. Ross, 7th Dist. Nos. 96-CA-247 and 96-CA-251, 1999
Ohio App. LEXIS 4859 (Oct. 12, 1999), cited in State v. McGee,
Mahoning Case No. 07-MA-137, 2009-Ohio-6397, ¶ 33.
[*P42] The declarant is not required to state that he believes that
he will not survive; rather, the necessary state of mind can be
inferred from circumstances at the time of the declaration. Ross,
supra, citing State v. Kotowicz, 55 Ohio App. 497, 501, 24 Ohio
Law Abs. 464, 9 N.E.2d 1003 (6th Dist.1937), quoting Shepard v.
United States, 290 U.S. 96, 100, 54 S.Ct. 22, 78 L.Ed. 196 (1933).
[*P43] According to Kennedy, the evidence at trial failed to
demonstrate that Stuckey was under a sense of impending death
when he made the statements identifying his shooter as "Midnight"
and "Midnight from Burnet." The state maintains that the
statements were properly admitted under Evid.R. 804(B)(2) as
dying declarations. We agree with the state.
[*P44] When Officer Schultz responded to the scene of the VineStreet shooting, a bloodied Stuckey was laying on the floor of the
Cricket Store. Stuckey was conscious, but he was moaning and
gasping in pain from receiving six gunshot wounds, including
wounds to his left hip, right buttocks, right arm, right calf, left
thigh, and torso. This last wound was caused when a bullet entered
his back and perforated his lung before exiting out of his chest.
[*P45] At first, Stuckey declined to tell the officer who had shot
him. Officer Schultz pressed Stuckey for a statement as he watched
Stuckey's physical condition deteriorate and his coloring fade.
[*P46] Officer Schultz asked, "You sure you don't want to tell me?
You are laying on the floor, you have hole in your chest and you
are turning gray. Maybe you will live and take care of this
yourself, but if you are going to die, you can give me the
information, tell me who shot you, where the gun is, where he is
at." Responding, Stuckey shrugged his shoulders and then said,
"Midnight." When Officer Schultz asked, "Who is Midnight?,"
Stuckey replied, "Midnight from Burnet."
[*P47] Stuckey became unconscious shortly afterwards, and
paramedics transported him to the hospital, where he later died
from "hemorrhagic shock due to hemothorax due to gunshot
wound of torso." [Footnote omitted]
[*P48] Based on the circumstances at the time of the statements,
we conclude that Stuckey believed his death was imminent.
Stuckey had suffered multiple gunshot wounds, and he was visibly
struggling with his vital functions. Moreover, Officer Schultz
essentially told Stuckey that he was going to die, and that if
Stuckey believed so, then he needed to identify his assailant.
Stuckey identified his assailant, demonstrating his belief of
[*P49] Kennedy also suggests that Stuckey's statements did not
qualify as dying declarations because Stuckey did not pass away
immediately. Traditionally, the length of time elapsing between the
declaration and death is an element to be considered in whether the
statement was made under impending belief of death. Mattox v.
United States, 146 U.S. 140, 151, 13 S.Ct. 50, 36 L.Ed. 917
(1892); Ray, 189 Ohio App.3d 292, 2010-Ohio-2348, 938 N.E.2d
378, at ¶ 42. But "'it is the impression of almost immediate
dissolution, and not the rapid succession of death, in point in fact,
that renders the testimony admissible.'" Mattox at 151, quoting 1
Greenleaf, Evidence 15th Ed. Section 156, 157, 158. "Despair may
even be gathered, though the period of survival outruns
expectations." Shepard v. United States, 290 U.S. 96, 54 S. Ct. 22,
78 L. Ed. 196 (1933).
[*P50] While Kennedy suggests that Stuckey lived for 36 hours,
the medical records unequivocally demonstrate that Stuckey died
about 12 hours later. Further, Officer Schultz's testimony shows
that Stuckey made his declarations only after determining that he
would soon die and would not be able to avenge his killer, a
reasonable conclusion under the circumstances, where he had been
shot six times and was struggling to live. Stuckey became
unconscious shortly after making the statements and died in
surgery. Under these facts, we conclude that Stuckey made the
declarations under a belief of impending death, even though he
died 12 hours later.
[*P51] Because Stuckey's statements to Officer Schultz identifying
his assailant were made under a belief of impending death and
were offered in a prosecution for homicide, the statements
qualified as dying declarations under Evid.R. 804(B)(2).
[*P52] This case is distinguishable from State v. Woods, 47 Ohio
App.2d 144, 352 N.E.2d 598 (9th Dist.1972), on which Kennedy
relies. In Woods, the court held that the record did not support a
finding that the victim had sensed his death was impending, and
that he had abandoned all hope of recovery, even though the victim
had suffered a mortal gunshot wound and was in critical condition
at the time of his declaration. Unlike the victim in Woods, Stuckey
was moaning and gasping in pain and had resisted providing the
information about his assailant until he was informed of the
severity of his condition. Further, Officer Schultz believed that
Stuckey thought he was dying, unlike in Woods, where the
emergency room surgeon testified that he did not believe that the
victim had believed that he would die and that the victim had only
complained about leg pain. Id. at 146-147. In light of these
differences, we are not persuaded that Woods requires a different
2. Confrontation-Clause Analysis
[*P53] Kennedy additionally argues that the admission of
Stuckey's statement to Officer Schultz violated his rights under the
Confrontation Clause of the Sixth Amendment. The Confrontation
Clause prohibits the admission of testimonial statements of a
witness who did not testify at trial, unless he was unavailable to
testify and the defendant had had a prior opportunity for crossexamination. Crawford v. Washington, 541 U.S. 36, 68, 124 S.Ct.
1354, 158 L.Ed.2d 177 (2004); Davis v. Washington, 547 U.S. 813,
821, 126 S.Ct. 2266, 165 L.Ed.2d 224 (2006).
[*P54] In Crawford, the Supreme Court substantially altered prior
case law that had generally permitted the admission of statements
that fell within hearsay exceptions based upon unavailability,
provided that the statements bore significant indicia of reliability.
The Crawford court rejected that prior case law as insufficient to
protect the right to confrontation set forth in the Sixth
Amendment's Confrontation Clause, which incorporated the right
of confrontation as it existed "at common law, admitting only those
exceptions established at the time of the founding." Crawford at
[*P55] The Crawford court observed, however, that dying
declarations were recognized at the common law as an exception to
the right of confrontation. Id. at fn. 6.
[*P56] After the Supreme Court's decision in Crawford, this court,
in State v. Nix, 1st Dist. Hamilton No. C-030696, 2004-Ohio-5502,
sua sponte reviewed whether statements admitted as dying
declarations under the hearsay exception set forth in Evid.R.
804(B)(2), an exception based on the unavailability of the witness,
violated the Confrontation Clause and created either preserved or
plain error in that case. We stated that Crawford did not appear to
bar the admission of the challenged statements because they were
not testimonial, and the Confrontation Clause is inapplicable to,
and does not prohibit the use of, nontestimonial statements. Id. at ¶
75. We also noted that the Crawford court had recognized the
common-law hearsay exception for dying declarations and had
"left unanswered the question whether its analysis applies to
testimonial dying declarations." Id.
[*P57] We cited Nix with approval in State v. Washington, 1st
Dist. Hamilton No. C-090561, 2010-Ohio-3175, ¶ 33, when
rejecting the defendant's claim that the admission of the victim's
statements violated his Confrontation Clause rights. We held that
the statements, which were admissible under the Evid.R. 804(B)(2)
exception for dying declarations, were not testimonial, and that
their admission did not violate the Confrontation Clause. See also
State v. Duncan, 8th Dist Cuyahoga No. 87220, 2006-Ohio-5009, ¶
[*P58] In this case, neither party has analyzed whether Stuckey's
statements were "testimonial" under the relevant precedent, and we
refrain from making that determination. Instead, we hold that the
admission of a statement that qualified as a dying declaration under
the common law, including one that is testimonial, does not
conflict with the Sixth Amendment and does not implicate
Crawford. Further, we hold Stuckey's statements to Officer Schultz
qualified as dying declarations under the common law. Thus, the
admission of the statements did not violate Kennedy's
Confrontation Clause rights, and a determination of whether the
statements are testimonial is unnecessary.
[*P59] The Ohio Supreme Court has not addressed whether
Crawford altered the analysis concerning the admission of dying
declarations when challenged as a Confrontation Clause violation.
But the court recognized long before Crawford, and long before
the promulgation of Ohio Evid.R. 804(B)(2), that dying
declarations had been recognized at common law as an exception
to the constitutional right of confrontation. See State v. Kindle, 47
Ohio St. 358, 361, 24 N.E. 485 (1890); Summons v. State, 5 Ohio
St. 325, 342 (1856).
[*P60] And several other state supreme courts have expressly held
that Crawford does not apply to the admission of a statement
recognized as a dying declaration under the common law, even if it
is testimonial. See, e.g., People v. Monterroso, 34 Cal.4th 743,
764, 22 Cal. Rptr.3d 1, 101 P.3d 956 (2004); Commonwealth v.
Nesbitt, 452 Mass. 236, 249, 892 N.E.2d 299 (2008) ("The
Confrontation Clause 'is most naturally read as a reference to the
right of confrontation at common law,'" which recognized dying
declarations as an exception to the right of confrontation); State v.
Jones, 287 Kan. 559, 569, 197 P.3d 815 (2008) ("[W]e are
confident that, when given the opportunity to do so, the Supreme
Court would confirm that a dying declaration may be admitted into
evidence, even when it is testimonial and unconfronted."); Harkins
v. State, 122 Nev. 974, 982, 143 P.3d 706 (2006) ("[B]ecause
dying declarations were recognized at common law as an
exception to the right of confrontation, they should continue to be
recognized as an exception.").
[*P61] The California Supreme Court, in Monterroso, reasoned as
Dying declarations were admissible at common law in
felony cases, even when the defendant was not present at
the time the statement was taken. (Peake, Evidence [3d
ed. 1808] p. 64). In particular, the common law allowed
"'the declaration of the deceased, after the mortal blow, as
to the fact itself, and the party by whom it was
committed,'" provided that "'the deceased at the time of
making such declarations was conscious of his danger.'"
(King v. Reason [K.B. 1722] 16 How. Str. Tr. 1, 24-25.)
To exclude such evidence as violative of the right to
confrontation "would not only be contrary to all
precedents in England and here, acquiesced in long since
the adoption of these constitutional provisions, but it
would be abhorrent to the sense of justice and regard for
individual security and public safety which its exclusion
in some cases would inevitably set at naught. But dying
declarations, made under certain circumstances, were
admissible at common law, and that common law was not
repudiated by our constitution in the clause referred to,
but adopted and cherished." (State v. Houser [Mo. 1858]
26 Mo. 431, 438; accord, Mattox v. United States (1895),
156 U.S. 237, 243-244, 39 L.Ed. 409, 15 S.Ct. 337, (from
time immemorial they have been treated as competent
testimony, and no one would have the hardihood at this
day to question their admissibility".)
Monterroso at 764-765.
[*P62] The Monterroso court then concluded:
Thus, if, as Crawford teaches, the confrontation clause "is
most naturally read as a reference to the right of
confrontation at common law, admitting only those
exceptions established at the time of the founding"
(Crawford, supra, 124 S.Ct. at 1365, citing Houser,
supra, 26 Mo. at 433-435), it follows that the common
law pedigree of the exception for dying declarations poses
no conflict with the Sixth Amendment.
Id. at 765.
[*P63] More recently, the United States Supreme Court has
reiterated Crawford's acknowledgement of authority that the Sixth
Amendment incorporates an exception for testimonial dying
declarations. See Giles v. California, 554 U.S. 353, 358-359, 128
S.Ct. 2678, 171 L.Ed.2d 488 (2008) ("We have previously
acknowledged that two forms of testimonial statements were
admitted at the common law even though they were
unconfronted[;] [t]he first of these were declarations made by a
speaker who was both on the brink of death and aware that he was
dying."); Michigan v. Bryant, U.S. , 131 S.Ct. 1143, 1151, 179
L.Ed.2d 93 (2011), fn. 1, ("[I]n Crawford * * * we first suggested
that dying declarations, even if testimonial, might be admissible as
a historic exception to the Confrontation Clause.").
[*P64] In light of this case law, we hold that the Sixth Amendment
incorporates an exception for "the common law pedigree" of dying
declarations, even testimonial ones, and that Crawford did not alter
this rule. See Monterroso, 34 Cal.4th at 765, 22 Cal. Rptr.3d 1, 101
[*P65] Next, we determine whether Stuckey's statements met the
constitutional standard for dying declarations, notwithstanding that
we have already held that his statements qualified as dying
declarations under Evid.R. 804(B)(2). See generally, Nicolas, 'I'm
Dying to Tell You What Happened': The Admissibility of
Testimonial Dying Declarations Post-Crawford, 37 Hastings
Const.L.Q. 487 (Spring 2010) (examining how to define the phrase
"dying declarations" as a constitutional matter.).
[*P66] This court did not examine this issue in Nix or Washington,
and Kennedy has not presented any argument that the Evid.R.
804(B)(2) exception for a dying declaration deviates from the
common-law exception recognized when the United States
Constitution was drafted.
[*P67] Evid.R. 102 expressly requires an Ohio court to apply the
"principles of the common law of Ohio" unless the evidence rule
"clearly indicates that a change is intended." Although we note that
Evid.R. 804(B)(2) expands the common-law rule by allowing the
exception for dying declarations in civil cases, see Staff Note to
Rule 804(B)(2), the rule appears otherwise to comport with the
common law definition of "dying declarations" at the time of the
[*P68] In Robbins v. State, 8 Ohio St. 131, 163 (1857), the Ohio
Supreme court recognized as settled law that in a prosecution for
homicide, a deceased-declarant's statement about the cause or
circumstances of his or her death passed muster as a dying
declaration under Ohio's Confrontation Clause only if the court
was satisfied that the statement had been "made under a sense of
impending death, excluding from the mind of the dying person all
hope or expectation of recovery." (Emphasis in original). See
Montgomery v. State, 11 Ohio 424, 425 (1842) (holding that the
court must determine "that the deceased not only made the
declarations just before death, and while in extremis, but also that
he was conscious of his true condition").
[*P69] Ohio's "confrontation clause," provides that "[i]n any trial,
in any court, the party accused shall be allowed * * * to meet the
witnesses face to face." Article I, Section 10, Ohio Constitution.
This right is understood to encompass the right of confrontation as
recognized by the Sixth Amendment to the United States
Constitution. See Summons, 5 Ohio St. at 340. In Summons, the
Ohio Supreme Court described Ohio's confrontation clause as "a
constitutional guaranty of one of the great fundamental principles
well established, and long recognized at common law, both in
England and this country." Id. The court then confirmed that "the
assertion of it in the fundamental law of the State, was designed
neither to enlarge nor curtail it in its operation, but to give it
permanency, and secure it against the power of change or
[*P70] We have already held that Stuckey's statement was made
under an impending sense of death, without any hope of recovery.
Thus, we conclude that Stuckey's statements, offered in Kennedy's
prosecution for homicide and identifying Kennedy as his assailant,
qualified as dying declarations under the common law. See
Robbins, 8 Ohio St. at 163. Therefore, we hold that the admission
of these statements did not conflict with Kennedy's Sixth
Amendment right to confrontation.
[*P71] Accordingly, we overrule the second assignment of error.
State v. Kennedy, supra.
In his Amended Traverse, Mr. Kennedy argues this Ground for Relief largely as a matter
of Ohio evidence law. That is, he claims the First District was wrong as a matter of law when it
found Mr. Stuckey’s identification was admissible as a dying declaration.1 Whether a particular
statement is admissible as a dying declaration is entirely a question of state evidence law which
this Court is not authorized to reconsider. Estelle, supra. Mr. Kennedy has cited no United
States Supreme Court precedent holding that admission of a dying declaration when there is a
factual dispute about admissibility makes a trial fundamentally unfair. There was no due process
violation in admitting Mr. Stuckey’s statement.
Nor was there any Confrontation Clause violation. Kennedy asserts Mr. Stuckey made
the statement “while subject to structured police questioning, requiring the application of
Crawford v. Washington, 541 U.S. 36 (2004).” The First District considered this argument, but
found that because dying declarations were a well-established exception to the hearsay rule at
common law, they were properly found to be an exception to Crawford. State v. Kennedy,
supra, at ¶¶ 60-63, citing People v. Monterroso, 34 Cal. 4th 743, 101 P.3d 956 (2004), and
language in Crawford itself suggesting the same result. Kennedy has made no showing that this
He also hypothesizes that the State might argue in the alternative that Stuckey’s statement was an excited utterance
(ECF No. 20, PageID 1588). The State makes no such argument and the Court therefore need not address Mr.
Kennedy’s excited utterance analysis.
is an objectively unreasonable application of Crawford or later Supreme Court case law applying
Mr. Kennedy’s First Ground for Relief is therefore without merit and should be dismissed
Ground Two: Prejudicial Joinder
In his Second Ground for Relief, Mr. Kennedy claims he was denied a fair trial by the
trial court’s refusal to separate the two incidents for trial. This was his first assignment of error
on direct appeal which the First District decided as follows:
A. Misjoinder and Prejudicial Joiner [sic]
[*P21] In his first assignment of error, Kennedy argues that the
trial court erred by overruling his motion to sever.
[*P22] Kennedy moved to sever the offenses related to the VineStreet shootings from the offenses related to the gamblingapartment shootings. He claimed that Crim.R. 8(A) did not allow
the joiner of those offenses in the same indictment, and that, if
proper, the joinder would be prejudicial as contemplated by
Crim.R. 14. He argued that the failure to sever would be
prejudicial because the jury was likely to rely on evidence related
to the offenses in one incident to infer Kennedy's guilt for the
offenses related to the other incident. The state argued that joiner
of the "homicides" was appropriate, and that severance was not
appropriate, because Kennedy had failed to show prejudice from
the joinder. The trial court overruled the motion.
[*P23] Crim.R. 8(A) pertains to the joinder of offenses in a single
indictment. This rule provides that "two or more offenses may be
charged in the same indictment" if the offenses are (1) "of the same
or similar character; (2) "based on the same act or transaction;" (3)
"based on two or more acts or transactions connected together or
constituting parts of a common scheme or plan," or (4) "part of a
course of criminal conduct." Crim.R. 8(A). Like R.C. 2941.04,
Crim.R. 8 attempts to set the limits of permissible joinder.
[*P24] Where joinder is not appropriate under Crim.R. 8(A)
because the offenses do not meet at least one of the four joinder
requirements, the trial court should grant a motion to sever, even in
the absence of prejudice. See State v. Schaim, 65 Ohio St.3d 51,
58, 1992 Ohio 31, 600 N.E.2d 661 (1992) (holding that "if similar
offenses are properly joined pursuant to Crim.R. 8(A), a defendant
can still move to sever the charges pursuant to Crim.R. 14 if their
consolidation will prejudice his or her rights"); see also State v.
Atkinson, 4 Ohio St.2d 19, 21-22, 211 N.E.2d 665 (1965) (applying
R.C. 2941.04), limited in part on other grounds, State v. Minneker,
27 Ohio St.2d 155, 271 N.E.2d 821 (1971). The issue involves a
question of law, which we review de novo. See Schaim at 59-63.
[*P25] Kennedy maintains that the Vine-Street offenses were
misjoined under Crim.R. 8 with the gambling-apartment offenses.
The state does not address the requirements of Crim.R. 8.
Nonetheless, after our review of the record, we find that joinder of
the offenses was permitted under Crim.R. 8(A), even though the
offenses were not based on the same transaction or related
[*P26] The Ohio Supreme Court has repeatedly held that the
joinder of multiple offenses against the same defendant in a single
trial is encouraged. State v. Williams, 73 Ohio St.3d 153, 158, 1995
Ohio 275, 652 N.E.2d 721 (1995); State v. Torres, 66 Ohio St.2d
340, 343, 421 N.E.2d 1288 (1981). Under Crim.R. 8(A), offenses
that are "of the same or similar character" may be joined. See State
v. Coleman, 1st Dist. Hamilton No. C-900872, 1992 Ohio App.
LEXIS 1046 (Mar. 11, 1992).
[*P27] The phrase "of the same or similar character" has been
given a broad definition. See Schaim, 65 Ohio St.3d at fn. 6, 1992
Ohio 31, 600 N.E.2d 661 (rejecting defendant's request for a
narrow definition in a case involving charges of forcible rape,
sexual imposition, and gross sexual imposition against three
[*P28] Kennedy claims that the incidents were not of the same or
of a similar character. But both incidents resulted in charges
alleging that Kennedy had purposely caused the death of another
(Counts 1, 3, and 10), that he had caused the death of another while
committing felonious assault (Counts 2, 4, and 11), that he had
knowingly caused serious physical harm and had knowingly
caused physical harm by means of a firearm (Counts 5, 6, 12, and
13), and that he had had weapons under a disability (Counts 8, 9,
14, and 15). And both sets of charges contained the same firearm
[*P29] Although the two incidents did not involve the exact same
offenses—the gambling-apartment shootings also involved a
robbery, which affected several of the counts—the offenses
stemming from the two incidents were of a similar character,
involving acts of violence committed with a firearm. Accordingly,
we hold that in this case the similarities justified joinder in the first
instance under Crim.R. 8(A).
[*P30] The joining of offenses because they are of a same or
similar character, however, creates a greater risk of prejudice to a
defendant. Schaim, 65 Ohio St.3d at 58, 600 N.E.2d 661. Joinder
may not be appropriate, even though the offenses are of the same
or similar character, "when the offenses are unrelated and the
evidence as to each is very weak." Torres, 66 Ohio St.2d at 343,
421 N.E2d 1288. See Schaim at 62; State v. Echols, 128 Ohio
App.3d 677, 696, 716 N.E.2d 728 (1st Dist.1998) (holding that the
trial court erred by failing to sever counts where the evidence of
the offenses failed to demonstrate a modus operandi, and where the
likelihood that the jury would misuse the evidence was
substantial); State v. Garrett, 12th Dist. Clermont No. CA2008-08075, 2009-Ohio-5442.
[*P31] Crim.R.14 provides relief from prejudicial joinder. A
defendant requesting separate trials of multiple charges must
affirmatively demonstrate prejudice by providing the trial court
with adequate information so that the trial court can "weigh the
considerations favoring joinder against the defendant's right to a
fair trial." Torres, 66 Ohio St.2d at syllabus, 421 N.E.2d 1288.
[*P32] The state may rebut the defendant's claim of prejudice in
two ways. The state may argue that it could introduce evidence
relevant to one offense in the trial of the other offense as other-acts
evidence. Or the state may show that the evidence relevant to each
offense joined is "simple and direct." State v. Lott, 51 Ohio St.3d
160, 163, 555 N.E.2d 293 (1990).
[*P33] We review the trial court's determination of prejudice and
its denial of separate trials under an abuse of discretion standard.
See Torres, 66 Ohio St.2d at syllabus, 421 N.E.2d 1288.
[*P34] Kennedy claims prejudice arose from the joinder because
the evidence of the multiple murders and assaults, when presented
in a single trial, created an accumulation of evidence that allowed
the state to portray him as a gun-toting, violent individual, and that
allowed the jury to infer his guilt for the offenses on this improper
portrayal, despite the state's presentation of weak evidence.
[*P35] To negate Kennedy's claim of prejudice, the state contends
that the evidence of each shooting was simple and direct, and that
the jury could easily segregate the proof relevant to each. We
agree. The jury could easily segregate the evidence from each
incident. The facts of each were uncomplicated and
distinguishable, and the state referred to the evidence in support of
each shooting in that manner. And the evidence was amply
sufficient to sustain the verdicts related to each incident, whether
or not the counts were tried together.
[*P36] Under these circumstances, Kennedy has failed to
demonstrate error in the trial court's denial of his motion to sever
the gambling-apartment offenses from the Vine-Street offenses.
Accordingly, we overrule the first assignment of error.
State v. Kennedy, supra.
The Warden contends that only a state law claim about joinder was presented to the First
District on appeal and this Court cannot consider any possible error of that court in applying the
Ohio law of joinder (Return, ECF No. 7, PageID 52-57).
Mr. Kennedy does not respond directly to this assertion. He cites his Fifth Amendment
right to a fair trial and federal precedent on joinder, but argues the Ground for Relief in terms of
the Ohio Rules of Criminal Procedure and Ohio case law (Amended Traverse, ECF No. 20,
PageID 1589, citing as applicable federal law United States v. Lane, 474 U.S. 438 (1986), but
also citing Ohio R. Crim. P. 8 and Ohio R. Evid. 404(B), State v. Williams, 73 Ohio St. 3d 153
(1995), and State v. Echols, 128 Ohio App. 3d 677 (1st Dist. 1998)).
To preserve a federal constitutional claim for presentation in habeas corpus, the claim
must be "fairly presented" to the state courts in a way which provides them with an opportunity
to remedy the asserted constitutional violation, including presenting both the legal and factual
basis of the claim. Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006); Levine v. Torvik,
986 F.2d 1506, 1516 (6th Cir.), cert. denied, 509 U.S. 907 (1993), overruled in part on other
grounds by Thompson v. Keohane, 516 U.S. 99 (1995); Riggins v. McMackin, 935 F.2d 790, 792
(6th Cir. 1991). The claim must be fairly presented at every stage of the state appellate process.
Wagner v. Smith, 581 F.3d 410, 418 (6th Cir. 2009).
“Federal courts do not have jurisdiction to consider a claim in a habeas petition that was
not ‘fairly presented’ to the state courts.” Newton v. Million, 349 F.3d 873, 877 (6th Cir. 2003);
accord, Jacobs v. Mohr, 265 F.3d 407, 415 (6th Cir. 2001); McMeans v. Brigano, 228 F.3d 674,
681 (6th Cir. 674, 681 (6th Cir. 2000); Fulcher v. Motley, 444 F.3d 791, 798 (6th Cir. 2006);
Blackmon v. Booker, 394 F.3d 399, 400 (6th Cir. 2004).
A state prisoner ordinarily does not ‘fairly present’ a federal claim to a state court if that
court must read beyond a petition, a brief, or similar papers to find material that will alert it to
the presence of such a claim. Baldwin v. Reese, 541 U.S. 27 (2004). When a defendant does so
little to present his claim that it has not been fairly presented, then the presumption under
Harrington v. Richter that the state court decided the claim on the merits is “fully rebutted.”
Johnson v. Williams, 568 U.S. ___, 133 S. Ct. 1088, *; 185 L. Ed. 2d 105 (2013). On the other
hand, when a federal claim is fairly presented but not addressed, “a federal habeas court must
presume that the federal claim was adjudicated on the merits. . .” Ross v. Pineda, 2013 U.S.
App. LEXIS 25481 (6th Cir. 2013), quoting Johnson v. Williams, 133 S. Ct. 1088, 1096
When one examines Kennedy’s Brief on appeal, one finds that the joinder issue was
argued entirely in terms of Ohio law; there are no federal constitutional citations or arguments
(Appellant’s Brief, ECF No. 7-1, PageID 115, 125-26).
Because Kennedy failed to fairly present any constitutional joinder claim to the Ohio
courts, he has procedurally defaulted his Second Ground for Relief, which should therefore be
dismissed with prejudice.
Ground Three: Other Acts Testimony
In his Third Ground for Relief, Mr. Kennedy claims that admitting “other acts” testimony
denied him a fair trial. This claim was presented as the third assignment of error on direct appeal
and decided by the First District as follows:
C. Other-Acts Evidence
[*P72] In his third assignment of error, Kennedy contends that the
trial court's admission of other-acts testimony, in violation of
Evid.R. 404(B), denied him a fair trial.
[*P73] Specifically, Kennedy challenges the testimony of jailinmate Tobias Johnson, who testified about conversations he had
had with Kennedy while incarcerated with him at the justice
center. After Johnson related how Kennedy had described the
Matthews-Turnbow shooting, the prosecutor then asked, "[Was]
there ever a time when you observed the defendant either talking to
you or other people about other killings that he had been involved
in?" Defense counsel objected on the grounds that the question was
eliciting other-acts testimony. Anticipating Johnson's response, the
prosecutor stated that the testimony would demonstrate Kennedy's
intent to kill Matthews, Turnbow, and Stuckey. The trial court
overruled the objection. Johnson then testified that Kennedy would
get keyed up by bragging that he was a serial killer and "got bodies
on his belt."
[*P74] Evid.R. 404(B) precludes the admission of evidence of
other crimes offered to prove the character of an accused in order
to show that the accused acted in conformity with that character.
But the rule does not preclude the admission of that evidence for
other purposes. See Evid.R. 404(B); see also R.C. 2945.59.
[*P75] In evaluating the admissibility of other-acts evidence, the
trial court should first "consider whether the other act evidence is
relevant to making any fact that is of consequence to the
determination of the action more or less probable than it would be
without the evidence." State v. Williams, 134 Ohio St.3d 521,
2012-Ohio-5695, 983 N.E.2d 1278, ¶ 20, citing Evid.R. 401. Next,
the court should determine if "evidence of the other crimes,
wrongs, or acts is presented to prove the character of the accused
in order to show activity in conformity therewith or whether the
other act evidence is presented for a legitimate purpose, such as
those stated in Evid.R. 404(B)." Id. Finally, the court should
"consider whether the probative value of the other acts evidence is
substantially outweighed by the danger of unfair prejudice." Id.,
citing Evid.R. 403.
[*P76] The admission of other-acts evidence under Evid.R. 404(B)
rests within the broad discretion of the trial court. State v. Morris,
132 Ohio St.3d 337, 2012-Ohio-2407, 972 N.E.2d 528, syllabus;
Williams at ¶ 17. We review the trial court's decision under an
abuse-of-discretion standard. Morris, supra.
[*P77] "'Abuse of discretion' has been described as including a
ruling that lacks a "'sound reasoning process.'" Morris at ¶ 14,
citing AAAA Ents., Inc. v. River Place Community Urban Redev.
Corp., 50 Ohio St.3d 157, 161, 553 N.E.2d 597 (1990). Our review
is a deferential one; it is not enough for this court to determine that
the trial court abused its discretion simply because we may have
reached a different conclusion. Id. Further, we should not disturb
an evidentiary decision "in the absence of an abuse of discretion
that created material prejudice." State v. Diar, 120 Ohio St.3d 460,
2008-Ohio-6266, 900 N.E.2d 565, ¶ 66.
[*P78] In this case, the challenged testimony passes the first step
of the three-step analysis. Kennedy was charged with purposefully
causing the death of Matthews, Turnbow, and Stuckey. Thus, the
state was charged with proving that Kennedy had intended to kill
all three, and that the deaths were not, as Kennedy argues in the
case of Matthews and Turnbow, the result of recklessness. That
Kennedy bragged about being a killer tended to show that he had
intended to kill them.
[*P79] The testimony also passes the second step of the analysis.
Contrary to Kennedy's assertion, the state used the testimony for
the specific purpose of showing that Kennedy, who bragged about
the killings, had intended to kill his victims. In closing argument,
the prosecutor told the jury that Kennedy's objection to Johnson's
anticipated testimony was overruled because the testimony was
admissible to prove what Kennedy "was thinking about" when he
shot his victims.
[*P80] The final step we consider is whether the probative value of
the other-acts evidence is substantially outweighed by the danger
of unfair prejudice. Kennedy was charged with three counts of
purposeful murder, and the state had evidence to support those
charges. The fact that Kennedy bragged about being a serial killer
after the three murders was probative of his intent to kill his
shooting victims. There was no danger of unfair prejudice in this
case because the prosecutor told the jurors the specific purpose for
which they could use the evidence. Further, the defense argued that
Kennedy's bragging was only "puffing," a necessary part of
survival in the "murder pod."
[*P81] Under these circumstances, we conclude that the trial court
did not abuse its discretion by allowing the challenged other-acts
testimony. Accordingly, we overrule the third assignment of error.
State v. Kennedy, supra.
Here as with the Second Ground for Relief, the State argues this claim was presented to
and decided by the Ohio courts purely as a matter of Ohio evidence law and not as a federal
constitutional claim (Return, ECF No. 7, PageID 57-58). Examination of Kennedy’s Brief on
appeal confirms this to be the case. In support of his third assignment of error, Kennedy cited
Ohio Evid. R. 404(B), the analogous Ohio Revised Code § 2945.59, and two Ohio Supreme
Court cases (Appellant’s Brief, ECF No. 7-1, PageID 116). The body of the argument consumes
less than a page of text and never mentions the federal Constitution or even uses the words “fair
trial.” In his Amended Traverse Kennedy argues the “serial killer” testimony was “especially
prejudicial,” then tacks on that it “clearly violated his Fifth and Fourteenth Amendment right to
due process of law.” (ECF No. 20, PageID 1591.) No Supreme Court case law is cited and in
fact the Supreme Court has never held that admission of other acts testimony violates due
process. “There is no clearly established Supreme Court precedent which holds that a state
violates due process by permitting propensity evidence in the form of other bad acts evidence.”
Bugh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003), noting that the Supreme Court refused to
reach the issue in Estelle v. McGuire, 502 U.S. 62 (1991).
Mr. Kennedy’s Third Ground for Relief should be dismissed as procedurally defaulted
because it was never fairly presented as a federal constitutional claim to the state courts and on
the merits because it does not state a claim under the United States Constitution.
Ground Four: Insufficient Evidence
In his Fourth Ground for Relief, Petitioner asserts his convictions are not supported by
sufficient evidence. This claim was raised as part of his fourth assignment of error on direct
appeal, along with a claim that the conviction was against the manifest weight of the evidence.
The First District decided this assignment of error as follows:
D. Sufficiency-and Weight-of-the-Evidence Claims
[*P82] In his fourth assignment of error, Kennedy challenges the
sufficiency of the evidence to support his convictions, as well as
the weight given it by the jury.
[*P83] The test for the sufficiency of the evidence required to
sustain a conviction is whether, after viewing all the evidence in a
light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt. See State v. Conway, 108 Ohio St.3d 214, 2006Ohio-791, 842 N.E.2d 996, ¶ 36, citing State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus,
following Jackson v. Virginia, 443 U.S. 307, 99 S.Ct. 2781, 61
L.Ed.2d 560 (1979). In deciding if the evidence was sufficient, we
neither resolve evidentiary conflicts nor assess the credibility of
witnesses, as both are functions reserved for the trier of fact. See
State v. Williams, 197 Ohio App.3d 505, 2011-Ohio-6267, 968
N.E.2d 27, ¶ 25 (1st Dist.).
[*P84] When reviewing a weight-of-the-evidence question, an
appellate court must review the entire record, weight the evidence
and all reasonable inferences, consider the credibility of the
witnesses, and determine whether, in resolving conflicts in the
evidence, the trier of fact clearly lost its way and created a
manifest miscarriage of justice. State v. Thompkins, 78 Ohio St.3d
380, 387, 1997 Ohio 52, 678 N.E.2d 541 (1997).
1. Gambling-Apartment Shootings—Counts 1, 3, 5, 7, and 8
[*P85] With respect to the gambling-apartment shootings,
Kennedy was convicted of aggravated murder for purposely
causing the death of Matthews, in violation of R.C. 2903.01(B),
with a three-year firearm specification (Count 1), aggravated
murder for purposely the death of Turnbow in violation of R.C.
2903.01(B) (Count 3), felonious assault for knowingly causing
physical harm to Thomas in violation of R.C. 2903.11(A)(1)
(Count 5), aggravated robbery for the theft of money facilitated by
the use of a deadly weapon with respect to Dumas and the other
occupants, in violation of R.C. 2911.01(A)(1) (Count 7), and
having weapons under a disability in violation of R.C.
2923.13(A)(2) (Count 8). The state proceeded against Kennedy as
an accomplice with respect to the felonious assault of Thomas.
[*P86] The evidence at trial met the test of sufficiency. Dumas
testified that he, Matthews, Turnbow, and the others present at
Matthews's apartment were robbed at gun point during a card game
that Thompson had previously participated in. Beard testified that
Kennedy had told him that Jaydee Thompson had turned him "onto
a lick at a gambling apartment," and that he had shot the woman
who had answered the door and a man named "Rodney"
(Turnbow), and then took $1500 out of Rodney's pocket.
[*P87] Tobias Johnson, another witness for the state, testified that
Kennedy had admitted to committing these offenses, including
shooting Matthews and Turnbow, after going to Matthews's home
to commit a robbery. According to Johnson, Kennedy also told him
that Thompson had shot Thomas in the face on the staircase as they
fled. Derrell Anderson provided testimony concerning similar
admissions by Kennedy. Thomas, who knew Thompson, testified
that he had recognized Thompson as his shooter.
[*P88] Finally, Kennedy stipulated to having the prior convictions
that created the disability in support of the weapons offense that
[*P89] In addition to his general challenge to the sufficiency of the
evidence, Kennedy specifically argues that the state failed prove
that he had purposely caused the deaths of Matthews and Turnbow.
[*P90] Kennedy was convicted of aggravated felony murder under
R.C. 2903.01(B), which proscribes "purposely caus[ing] the death
of another * * * while committing or attempting to commit, or
while fleeing immediately after committing or attempting to
commit, * * * aggravated robbery." A person acts purposely when
he specifically intends to cause a certain result. See R.C.
2901.22(A); State v. Trimble, 122 Ohio St.3d 297, 2009-Ohio2961, 911 N.E.2d 242, ¶ 188. Intent to kill may be proved by
inference and "may be inferred in a[n] [aggravated] felony-murder
when the offense and the manner of its commission would be
likely to produce death." State v. Garner, 74 Ohio St. 3d 49, 60,
1995 Ohio 168, 656 N.E.2d 623 (1995); see State v. Tibbs, 1st
Dist. Hamilton No. C-100378, 2011-Ohio-6716, ¶ 28, citing State
v. McCoy, 1st Dist. Hamilton No. C-090559, 2010-Ohio-5810, ¶
[*P91] Kennedy claims that the evidence was insufficient to
demonstrate a purpose to kill Matthews because there was some
evidence that she had been shot through the door as she was
opening it, instead of closing it. But whether Kennedy shot
Matthews when she was closing or opening the door is irrelevant.
Either way, he had to know that someone was responsible for the
movement of the door, and that that person was standing on the
other side of it, blocking his entrance. And Kennedy's bullet, fired
at fairly close range, struck Matthews squarely in her chest.
[*P92] Kennedy also suggests that Turnbow's death was not a
purposeful killing, just the result of an errant bullet. But Kennedy
shot Turnbow in the head, at what had to have been fairly close
range in Matthews's small apartment, and there was evidence that
Kennedy had shot Turnbow because he tried to run.
[*P93] Further, Johnson testified that Kennedy had bragged while
incarcerated about being a killer. This evidence, along with the
evidence of the manner of the shootings, when viewed in the light
most favorable to the prosecution, was sufficient evidence from
which the trier of fact could have reasonably concluded that
Kennedy had specifically intended to cause death. See Tibbs, 2011Ohio-6716 at ¶ 37.
[*P94] In sum, construing the evidence in the light most favorable
to the prosecution, any rational juror could have concluded beyond
a reasonable doubt that Kennedy had committed the offenses
related to the gambling-apartment shootings, including the
aggravated felony murders of Matthews and Turnbow, the
felonious assault of Thomas, the aggravated robbery of Dumas and
the other gambling participants in Matthews's apartment, and the
offense of having weapons under a disability.
2. Vine-Street Shootings—Counts 10, 12, and 14
[*P95] With respect the Vine-Street shootings, Kennedy was
convicted of murder in violation of R.C. 2903.02(A), with a threeyear firearm specification, for purposely causing the death of
Stuckey (Count 10), felonious assault in violation of R.C.
2901.11(A)(1), for knowingly causing serious physical harm to
Simmons (Count 12), and having weapons under a disability in
violation of R.C. 2913.13(A)(2) (Count 14).
[*P96] Officer Schultz testified that had he arrived at the scene of
the shooting on Vine Street shortly after hearing shots fired. He
learned that a bystander, Simmons, had been shot on the street, and
he found Stuckey on the floor of a Cricket Store with multiple
bullet wounds. Stuckey identified his shooter first as "Midnight"
and then as "Midnight from Burnet." Several witnesses at trial
testified that Kennedy was known as "Midnight," and that he
"hung out" on Burnet Avenue. Kennedy even acknowledged his
nickname during a police interview, and he admitted that he knew
Stuckey, and that Stuckey had previously robbed him.
[*P97] Robb and Paige, two inmates who had been incarcerated
with Kennedy at the justice center, testified that Kennedy had
admitted to shooting Stuckey and a bystander on that day.
[*P98] Kennedy specifically argues that the state failed to prove
that he caused "serious physical harm," an element of the
felonious-assault charge under R.C. 2903.11(A)(1) relating to
Simmons. In support, Kennedy cites testimony from Officer
Thompson, assigned to investigate the Vine-Street shootings, who
stated that Simmons was "shot superficially with a stray bullet."
[*P99] The "serious physical harm" element of R.C.
2903.11(A)(1) is defined in R.C. 2901.01(A)(5). This definition
includes "any physical harm that involves some permanent
disfigurement or that involves some temporary, serious
disfigurement." R.C. 2901.01(A)(5)(d). Although Simmons did not
testify and Officer Thompson generally characterized Simmons's
injury as superficial, the medical records admitted at trial by
stipulation demonstrated that Simmons had sustained multiple
"abrasion/puncture wounds" caused by bullet fragments, with some
fragments remaining in his soft tissue. At the hospital, the wounds
were irrigated and treated with antibiotics. Simmons was
prescribed vicodin for severe pain and antibiotics, upon discharge
after spending the night at the hospital. This evidence, when
viewed in the light most favorable to the prosecutor, was sufficient
to convince a rational trier of fact beyond a reasonable doubt that
Kennedy had caused "serious physical harm" to Simmons.
[*P100] Finally, Kennedy stipulated to his prior convictions that
had resulted in a disability on the day of the Vine-Street shootings.
The stipulation supported his conviction for having weapons under
a disability on that date.
[*P101] We conclude, therefore, after construing the evidence in
the light most favorable to the prosecution, that any rational juror
could have concluded beyond a reasonable doubt that Kennedy had
committed all of the offenses related to the Vine-Street shootings,
including the murder of Stuckey, the felonious assault of Simmons,
and the offense of having weapons under a disability.
3. Weight-of-the-Evidence Claim [Omitted – not a federal
[*P103] In sum, we hold that state presented substantial, credible
evidence to support the convictions. Further, we hold that there is
no basis to conclude that the trier of fact lost its way or committed
a manifest miscarriage of justice in resolving the factual issues
against Kennedy. See Thompkins, 78 Ohio St.3d at 387, 678
[*P104] Accordingly, we overrule the fourth assignment of error.
State v. Kennedy, supra.
An allegation that a verdict was entered upon insufficient evidence states a claim under
the Due Process Clause of the Fourteenth Amendment to the United States Constitution.
Jackson v. Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle,
200 F.3d 987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc).
In order for a conviction to be constitutionally sound, every element of the crime must be proved
beyond a reasonable doubt. In re Winship, 397 U.S. at 364.
[T]he relevant question is whether, after viewing the evidence in
the light most favorable to the prosecution, any rational trier of fact
could have found the essential elements of the crime beyond a
reasonable doubt . . . . This familiar standard gives full play to the
responsibility of the trier of fact fairly to resolve conflicts in the
testimony, to weigh the evidence and to draw reasonable
inferences from basic facts to ultimate facts.
Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006);
United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was
recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law
which determines the elements of offenses; but once the state has adopted the elements, it must
then prove each of them beyond a reasonable doubt. In re Winship, supra. A sufficiency
challenge should be assessed against the elements of the crime, not against the elements set forth
in an erroneous jury instruction. Musacchio v. United States, 577 U.S. ___, 136 S. Ct. 709, 193
L. Ed. 2d 639 (2016).
In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after
enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132,
110 Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:
In an appeal from a denial of habeas relief, in which a petitioner
challenges the constitutional sufficiency of the evidence used to
convict him, we are thus bound by two layers of deference to
groups who might view facts differently than we would. First, as in
all sufficiency-of-the-evidence challenges, we must determine
whether, viewing the trial testimony and exhibits in the light most
favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable
doubt. See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781,
61 L. Ed. 2d 560 (1979). In doing so, we do not reweigh the
evidence, re-evaluate the credibility of witnesses, or substitute our
judgment for that of the jury. See United States v. Hilliard, 11 F.3d
618, 620 (6th Cir. 1993). Thus, even though we might have not
voted to convict a defendant had we participated in jury
deliberations, we must uphold the jury verdict if any rational trier
of fact could have found the defendant guilty after resolving all
disputes in favor of the prosecution. Second, even were we to
conclude that a rational trier of fact could not have found a
petitioner guilty beyond a reasonable doubt, on habeas review, we
must still defer to the state appellate court's sufficiency
determination as long as it is not unreasonable. See 28 U.S.C. §
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas
corpus case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and
then to the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v.
Palmer, 541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir.
2011)(en banc); Parker v. Matthews, 132 S. Ct. 2148, 2152 (2012). Notably, “a court may
sustain a conviction based upon nothing more than circumstantial evidence.” Stewart v.
Wolfenbarger, 595 F.3d 647, 656 (6th Cir. 2010).
We have made clear that Jackson claims face a high bar in federal
habeas proceedings because they are subject to two layers of
judicial deference. First, on direct appeal, "it is the responsibility of
the jury -- not the court -- to decide what conclusions should be
drawn from evidence admitted at trial. A reviewing court may set
aside the jury's verdict on the ground of insufficient evidence only
if no rational trier of fact could have agreed with the jury."
Cavazos v. Smith, 565 U. S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d
311, 313 (2011) (per curiam). And second, on habeas review, "a
federal court may not overturn a state court decision rejecting a
sufficiency of the evidence challenge simply because the federal
court disagrees with the state court. The federal court instead may
do so only if the state court decision was 'objectively
unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S. ___, ___,
130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).
Coleman v. Johnson, 566 U.S. ___, ___, 132 S. Ct. 2060, 2062 (2012)(per curiam).
In defending the Fourth Ground for Relief, the Warden asserts the First District’s
decision was an objectively reasonable application of Jackson v. Virginia, 443 U.S. 307
(1979)(Return of Writ, ECF No. 7, PageID 62-70).
In response, Mr. Kennedy claims he was convicted only “on the testimony of five
convicted felons, several of whom had something to gain by their testimony.” Nothing in the
law makes the testimony of convicted felons inherently incredible. Here the jury heard their
testimony, but also impeaching evidence as to their prior convictions. Kennedy admits that only
some of them had something to gain by testifying against him.
Kennedy asserts the State did not provide sufficient evidence to show that the killings
were purposeful. In particular he asserts that the first victim, Ms. Matthews, was shot while
opening the door rather than closing it. As the First District pointed out, that is irrelevant
because Kennedy had to know someone was on the other side of that door, whether they were
opening or closing it. State v. Kennedy, supra, at ¶ 91. Kennedy’s claim that Turnbow was hit
by an “errant” bullet was met by the First District, quite reasonably, with the observation that
Turnbow was shot in the head at close range. Id. at ¶ 92.
Kennedy claims the State failed to prove he caused serious physical harm to Mr.
Simmons, the victim in Kennedy’s felonious assault conviction, because the investigating officer
“did not establish serious physical harm as that term is defined in” Ohio Revised Code §
2901.01(A)(5)(Amended Traverse, ECF No. 20, PageID 1593). Kennedy provides no transcript
reference for the supposedly deficient testimony. In contrast, the First District described in detail
the testimony about Simmons’ injuries and held those were sufficient to meet the statutory
definition of serious physical harm. Of course, whether or not certain facts come within an
element of state law is a question for the state courts to decide.
Given the double deference state court findings on sufficiency are entitled to, Kennedy
has not shown there was insufficient evidence on which to convict him. His Fourth Ground for
Relief should be dismissed with prejudice.
Based on the foregoing analysis, it is respectfully recommended that the Petition be
DISMISSED WITH PREJUDICE. Because reasonable jurists would not disagree with this
conclusion, Petitioner should be denied a certificate of appealability and the Court should certify
to the Sixth Circuit that any appeal would be objectively frivolous and therefore should not be
permitted to proceed in forma pauperis.
December 29, 2016.
s/ Michael R. Merz
United States Magistrate Judge
NOTICE REGARDING OBJECTIONS
Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the
proposed findings and recommendations within fourteen days after being served with this Report
and Recommendations. Pursuant to Fed. R. Civ. P. 6(d), this period is extended to seventeen
days because this Report is being served by mail. .Such objections shall specify the portions of
the Report objected to and shall be accompanied by a memorandum of law in support of the
objections. If the Report and Recommendations are based in whole or in part upon matters
occurring of record at an oral hearing, the objecting party shall promptly arrange for the
transcription of the record, or such portions of it as all parties may agree upon or the Magistrate
Judge deems sufficient, unless the assigned District Judge otherwise directs. A party may
respond to another party=s objections within fourteen days after being served with a copy thereof.
Failure to make objections in accordance with this procedure may forfeit rights on appeal. See
United States v. Walters, 638 F.2d 947, 949-50 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140,
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