Chatman v. Warden Ross Correctional Institution

Filing 9

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 this Court s hould certify to the Sixth Circuit that and appeal would not be taken in objective good faith and therefore should not be permitted to proceed in forma pauperis. Objections to R&R due by 4/12/2013. Signed by Magistrate Judge Michael R Merz on 3/25/2013. (kpf1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
EASTERN DIVISION AT COLUMBUS
RICHARD A. CHATMAN,
:
Petitioner,

Case No. 2:10-cv-1091
:

District Judge George C. Smith
Magistrate Judge Michael R. Merz

-vsWarden, Ross Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS
Petitioner brought this habeas corpus action pro se pursuant to 28 U.S.C. § 2254 to obtain
relief from his convictions in the Franklin County Common Pleas Court for murder, tampering
with evidence, and possession of weapons under disability (Petition, Doc. No. 1, PageID 1).
Based on those convictions, he is serving a sentence of twenty-eight years to life in
Respondent’s custody.
Petitioner pleads the following Ground for Relief:
Ground One: Petitioner was deprived of his Sixth Amendment
rights to the effective assistance of trial counsel.
Supporting Facts: Counsel’s failure to object to the introduction
of numerous gory, irrelevant and prejudicial photos whose
probative value was substantially outweighed by their prejudicial
effect and failure to request an in camera hearing regarding the
testimony of the co-defendant.
Ground Two: Petitioner was denied due process when the
evidence is insufficient to convict him.

1

Supporting Facts: The state of Ohio failed to present sufficient
evidence of complicity to murder and having a weapon while
under disability.
Ground Three: Petitioner was denied his right to confrontation
and compulsory process.
Supporting Facts: The trial court failed to provide petitioner a
meaningful opportunity to present a complete defense so that his
co-defendant could present testimony establishing petitioner’s
innocence.
(Petition, Doc. No. 1, PageID 5-9.)

Procedural History

Chatman was indicted by the Franklin County Grand Jury on counts of aggravated
murder and murder, two counts of tampering with evidence, and one count of having weapons
while under disability. After waiving his right to trial by jury, he was convicted on all counts
except for aggravated murder, as well as a firearm specification and a drive-by specification.
Chatman appealed to the Tenth District Court of Appeals which affirmed. State v. Chatman,
2009 Ohio 2504, 2009 Ohio App. LEXIS 2101 (Ohio App. 10th Dist. May 28, 2009). The Ohio
Supreme Court declined to exercise jurisdiction over a further appeal. State v. Chatman, 123
Ohio St. 3d 1409 (2009). Chatman then filed the instant Petition on December 6, 2010 (Doc. No.
1). On Judge Deavers’ Order (Doc. No. 2), Respondent filed a Return of Writ on March 17,
2011 (Doc. No. 5). Despite the expiration of over two years since then, Petitioner has not filed a
reply to the Return. The case is therefore ripe for decision.

2

Analysis

Ground One: Ineffective Assistance of Trial Counsel

In his First Ground for Relief, Chatman claims he received ineffective assistance of trial
counsel when his trial attorney (1) failed to object to the admission of gruesome photographs and
(2) failed to request an in camera hearing regarding the testimony of his co-defendant. This
claim was raised as the first assignment of error on direct appeal.
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. ___, 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).
The court of appeals decided the ineffective assistance of trial counsel claim as follows:
[*P10] In his first assignment of error, appellant contends he was

denied effective assistance of counsel. Specifically, appellant
argues his counsel failed to object to the numerous gory and
prejudicial photographs and failed to request an in camera hearing
regarding the testimony of his co-defendant, Vinson.
[*P11] To prove ineffective assistance of counsel, defendant must
first prove that counsel's performance was deficient. Strickland v.
Washington (1984), 466 U.S. 668, 687, 104 S.Ct. 2052, 2065, 80
L. Ed. 2d 674. To meet the requirement, defendant must initially
show counsel made errors so serious that counsel was not
functioning as the "counsel" guaranteed by the Sixth Amendment.
Id. "[A] court must indulge a strong presumption that counsel's
conduct falls within the wide range of reasonable professional
assistance; that is, the defendant must overcome the presumption
that, under the circumstances, the challenged action 'might be
3

considered sound trial strategy.'" Id. at 689. (Citation omitted.)
"Even debatable trial tactics do not constitute ineffective assistance
of trial counsel." State v. Jordan, 10th Dist. No. 04AP-827, 2005
Ohio 3790, P17, quoting State v. Nichols (1996), 116 Ohio App.3d
759, 764, 689 N.E.2d 98.
[*P12] Defendant must next demonstrate that counsel's deficient
performance prejudiced the defense by showing that, were it not
for the errors, the result of the trial probably would have been
different. The failure to prove either prong of the Strickland test
makes it unnecessary for a court to consider the other prong.
[*P13] During the trial, the parties stipulated to the admission of
the photographs, which included depictions of the crime scene as
well as the autopsy. In addition, the parties stipulated that appellant
was the driver of the Bronco and that Vinson was the shooter.
Appellant's theory during the trial was that despite his being the
driver, he in no way was an aider and abettor under the state's
complicity theory. Nonetheless, appellant contends his trial
counsel was ineffective in stipulating to the "gory, irrelevant and
prejudicial photographs." (Appellant's brief at 4.) Specifically,
appellant states that photographs were used to "hammer the point
that Walton was a bloody mess, this was a gruesome shooting, and
[appellant] should be found guilty." (Brief at 5.) Appellant also
asserts the sole purpose of introducing the pictures was "to inflame
the passions of the trier of fact." (Brief at 6.) Therefore, appellant
asserts his counsel was ineffective in failing to object to the
photographs' admission under Evid.R. 403, and/or in failing to
limit the number of photographs admitted because there was no
basis to admit the majority of the photographs.
[*P14] Initially, we note that the admission of photographic
evidence is left to the sound discretion of the trial court, and a trial
court may indeed reject a photograph, otherwise admissible, due to
its inflammatory nature if on balance the prejudice outweighs the
relevant probative value. State v. Maurer (1984), 15 Ohio St. 3d
239, 264-65, 15 Ohio B. 379, 473 N.E.2d 768. While concededly
many of the photographs in this case are gruesome, "the mere fact
that a photograph is gruesome or horrendous is not sufficient to
render it per se inadmissible." Id. at 265, citing State v. Woodards
(1966), 6 Ohio St.2d 14, 25, 215 N.E.2d 568.
[*P15] Further, as the Supreme Court of Ohio stated in Maurer,
"[t]he fact that appellant stipulated the cause of death does not
automatically render the photographs inadmissible." Id. at 265.
Additionally, "relevant evidence, challenged as being outweighed
4

by its prejudicial effects, should be viewed in a light most
favorable to the proponent of the evidence, maximizing its
probative value and minimizing any prejudicial effect to one
opposing admission." Id., citing United States v. Brady (C.A.6,
1979), 595 F.2d 359.
[*P16] Here, because there was not a jury as this matter was tried
to the bench, the decision to stipulate to the photographs'
admissibility could constitute sound trial strategy. Debatable trial
tactics and strategies do not constitute a denial of effective
assistance of counsel. Jordan, supra. Defense counsel's decision to
stipulate to evidence is generally considered a tactical decision.
State v. Townsend, 9th Dist. No. 23397, 2007 Ohio 4421, P27,
citing State v. White (Nov. 15, 1995), 9th Dist. No. 16900, 1995
Ohio App. LEXIS 5073. See also State v. Pridgen, 5th Dist. No.
2004 CA 00313, 2005 Ohio 3291, reversed on other grounds, 107
Ohio St. 3d 1421, 2005 Ohio 6124, 837 N.E.2d 1207 (strategic
decision to stipulate to evidence did not constitute ineffective
assistance of counsel). Had defense counsel objected to the
admission of the photographs, the trial court would have then been
required to review and scrutinize each and every photograph to
determine its admissibility. Hence, we can discern a tactical
decision from counsel's actions as the court, as trier of fact, would
have reviewed the photographs nonetheless. For this same reason,
appellant is unable to establish prejudice by his counsel's actions as
the trial court would have reviewed these photographs regardless
of whether or not defense counsel objected to their admission. We
cannot say there is a probability sufficient to undermine the
confidence in the outcome of this case; therefore, we are not able
to find appellant was prejudiced by his counsel's actions.
Strickland, 466 U.S. at 694, 104 S.Ct. at 2068.
[*P17] Furthermore, "[w]e indulge in the usual presumption that in
a bench trial in a criminal case the court considered only the
relevant, material, and competent evidence in arriving at its
judgment unless it affirmatively appears to the contrary." State v.
White (1968), 15 Ohio St.2d 146, 151, 239 N.E.2d 65; State v.
Nasser, 10th Dist. No. 02AP-1112, 2003 Ohio 5947, P57, appeal
not allowed by 101 Ohio St. 3d 1490, 2004 Ohio 1293, 805 N.E.2d
540. To demonstrate the trial court's decision was based on
improper evidence, appellant directs us to the trial court's
comments made at Vinson's plea and sentencing hearings that the
photographs were "too gruesome to display" and that "this is by far
the worst I've seen, the absolute worst." (Appellant's brief at 9.)
With respect to his own proceedings, appellant goes on to contend
only that the trial court "continued at [appellant's] sentencing
5

indicating that he listened and seen firsthand the gruesome details
of the offense." (Brief at 9.)
[*P18] First, the quoted portions of the trial court's comments are
from Vinson's proceedings, not appellant's. Secondly, appellant's
reference to the trial court's comments in his own case were, as
appellant directs, made at appellant's sentencing, after appellant
had been found guilty. Accordingly, we find nothing in the record
to affirmatively demonstrate the trial court considered anything but
relevant, material, and competent evidence in arriving at its
judgment. While the photographs depicting the facts of this case
are unpleasant, it is because they depict a close-range blow to the
head from a shotgun. However, the record is devoid of any
evidence that the trial judge, as trier of fact, was inflamed by the
gruesome nature of the crime so as to undermine one's confidence
in the verdict, that as will be discussed infra, is supported by the
remaining evidence. State v. Keene, 81 Ohio St.3d 646, 1998 Ohio
342, 693 N.E.2d 246.
[*P19] Also under this assigned error, appellant contends that if
this court should find the issue raised in his third assignment of
error was not preserved for review, his trial counsel was ineffective
on this basis as well. For the reasons following in our disposition
of appellant's third assignment of error, we find no merit to this
portion of appellant's argument.
[*P20] Accordingly, we overrule appellant's first assignment of
error.
State v. Chatman, 2009 Ohio 2504, ¶¶ 10-20.
In this case the court of appeals applied the proper federal constitutional standard as
enunciated in Strickland v. Washington, supra. As the court of appeals noted, since this was a
trial to the bench, the trial judge would, in any event, have seen all of the photographs one by
one if Petitioner’s counsel had objected. By stipulating to their admission, counsel at least had a
chance that the trial judge would accept them as a group and not pay much attention to them.
Furthermore, as the court of appeals held, when judges are triers of the fact, they are presumed to
ignore irrelevant evidence they have seen. It was therefore not deficient performance to stipulate
to their admission.
6

As to the claim that counsel should have requested an in camera hearing regarding
testimony of the co-defendant, the court of appeals found that the freestanding third assignment
of error regarding calling co-defendant Vinson as a witness had no merit. It therefore held that
there was no ineffective assistance of trial counsel in failing to ask for an in camera hearing
regarding Vinson. This holding precludes any claim that it was ineffective assistance not to ask
for the hearing: it cannot be deficient performance to fail to ask for a hearing where the result
would not have had an impact on the case.
Because the court of appeals’ decision is entitled to complete deference under 28 U.S.C.
§ 2254(d)(1), Petitioner’s First Ground for Relief is without merit and should be dismissed with
prejudice. Because reasonable jurists would not disagree with this conclusion, Petitioner should
be denied a certificate of appealability on this Ground for Relief.

Ground Two: Insufficient Evidence

In his Second Ground for Relief, Petitioner asserts he was convicted on insufficient
evidence, challenging the sufficiency of evidence of complicity to murder and having a weapon
under disability.
Chatman’s second assignment of error on direct appeal challenged both the sufficiency of
the evidence and its manifest weight. The court of appeals decided this assignment of as
follows:
[*P21] In his second assignment of error, appellant challenges both
the sufficiency and the weight of the evidence with respect to his
convictions for complicity to murder and having a weapon while
under disability.
[*P22] The Supreme Court of Ohio described the role of an
7

appellate court presented with a sufficiency-of-the-evidence
argument in State v. Jenks (1991), 61 Ohio St.3d 259, 574 N.E.2d
492, paragraph two of the syllabus:
An appellate court's function when reviewing the
sufficiency of the evidence to support a criminal
conviction is to examine the evidence admitted at
trial to determine whether such evidence, if
believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt. The
relevant inquiry is whether, after viewing the
evidence in a light most favorable to the
prosecution, any rational trier of fact could have
found the essential elements of the crime proven
beyond a reasonable doubt. (Jackson v. Virginia
[1979], 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d
560, followed[.])

[*P23] Whether the evidence is legally sufficient is a question of
law, not fact. State v. Thompkins (1997), 78 Ohio St.3d 380, 386,
1997 Ohio 52, 678 N.E.2d 541. In determining the sufficiency of
the evidence, an appellate court must give "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
(1979), 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L. Ed. 2d 560.
Consequently, the weight of the evidence and the credibility of the
witnesses are issues primarily determined by the trier of fact. State
v. Yarbrough, 95 Ohio St.3d 227, 2002 Ohio 2126, P79, 767
N.E.2d 216; State v. Thomas (1982), 70 Ohio St.2d 79, 80, 434
N.E.2d 1356. Thus, a jury verdict will not be disturbed unless, after
viewing the evidence in a light most favorable to the prosecution, it
is apparent that reasonable minds could not reach the conclusion
reached by the trier of fact. State v. Treesh, 90 Ohio St.3d 460,
484, 2001 Ohio 4, 739 N.E.2d 749; Jenks, supra.
[*P24] A manifest-weight argument is evaluated under a different
standard. "The weight of the evidence concerns the inclination of
the greater amount of credible evidence offered in a trial to support
one side of the issue rather than the other." (Citation omitted.)
State v. Brindley, 10th Dist. No. 01AP-926, 2002 Ohio 2425, P16.
In order for a court of appeals to reverse the judgment of a trial
court on the basis that the verdict is against the manifest weight of
the evidence, the appellate court must disagree with the fact
finder's resolution of the conflicting testimony. Thompkins, at 387.
8

The court, reviewing the entire record, weighs the evidence and all
reasonable inferences, considers the credibility of witnesses, and
determines whether, in resolving conflicts in the evidence, the jury
clearly lost its way and created such a manifest miscarriage of
justice that the conviction must be reversed and a new trial
ordered. The discretionary power to grant a new trial should be
exercised only in the exceptional case in which the evidence
weighs heavily against the conviction. Id., quoting State v. Martin
(1983), 20 Ohio App.3d 172, 175, 20 Ohio B. 215, 485 N.E.2d
717.
[*P25] A defendant is not entitled to a reversal on manifest-weight
grounds merely because inconsistent evidence was presented at
trial. State v. Raver, 10th Dist. No. 02AP-604, 2003 Ohio 958,
P21. The determination of weight and credibility of the evidence is
for the trier of fact. State v. DeHass (1967), 10 Ohio St.2d 230, 227
N.E.2d 212. The rationale is that the trier of fact is in the best
position to take into account inconsistencies, along with the
witnesses' manner and demeanor, and determine whether the
witnesses' testimony is credible. State v. Williams, 10th Dist. No.
02AP-35, 2002 Ohio 4503, P58; State v. Clarke (Sept. 25, 2001),
10th Dist. No. 01AP-194, 2001 Ohio App. LEXIS 4302. The trier
of fact is free to believe or disbelieve all or any of the testimony.
State v. Jackson (Mar. 19, 2002), 10th Dist. No. 01AP-973, 2002
Ohio 1257; State v. Sheppard (Oct. 12, 2001), 1st Dist. No. C000553, 2001 Ohio App. LEXIS 4590. Consequently, although an
appellate court must act as a "thirteenth juror" when considering
whether the manifest weight of the evidence requires reversal, it
must give great deference to the fact finder's determination of the
witnesses' credibility. State v. Covington, 10th Dist. No. 02AP245, 2002 Ohio 7037, P22; State v. Hairston, 10th Dist. No. 01AP1393, 2002 Ohio 4491, P17.
[*P26] Appellant asserts there was no direct evidence that he was
guilty of complicity to murder by aiding and abetting. In order to
support a conviction for complicity by aiding and abetting in the
commission of a crime, it must be shown that the defendant
"supported, assisted, encouraged, cooperated with, advised, or
incited the principal in the commission of the crime, and that the
defendant shared the criminal intent of the principal." State v.
Johnson (2001), 93 Ohio St.3d 240, 2001 Ohio 1336, 754 N.E.2d
796, syllabus. The defendant's "intent may be inferred from the
circumstances surrounding the crime." Id. "The mere act of driving
away from the scene of a shooting perpetrated by a passenger of a
vehicle has been held to be sufficient to uphold a conviction based
on complicity where the circumstances show the driver knew shots
9

were being fired by the passenger." State v. Garner, 10th Dist. No.
07AP-474, 2008 Ohio 944, P21, citing State v. Jones, 10th Dist.
No. 02AP-1390, 2003 Ohio 5994.
[*P27] Here, Wilson and Masters, two independent eyewitnesses
from Guernsey County, Ohio, both testified that while stopped at a
red light they saw Walton sitting in a car near the intersection of
Kelton Avenue and Mooberry Street. Both Wilson and Masters
testified a Bronco pulled up next to Walton's car, and then they
heard a loud boom. According to Wilson, after the shot was fired,
the driver of the Bronco "started pulling away really slow" and the
driver "was just staring at us with his arm out of the window." (Tr.
63-64.) As Masters drove up to Walton's car, Wilson testified the
Bronco "slammed on his brakes." (Tr. 66.) During the trial, Wilson
identified appellant as the driver of the Bronco.
[*P28] Masters testified she was at the red light when she saw a
black man sitting in his car. A Bronco pulled up at "a very slow
rate" to the light. (Tr. 108.) Masters then heard a "big boom." (Tr.
93.) After that, the Bronco "drove away real slow." (Tr. 96.)
According to Masters, after the shot was fired, "he was going real
slow in front of my car with his arm out the window staring at me
in my face." (Tr. 93.) Indicating she would never forget the driver's
face, Masters identified appellant at trial.
[*P29] Masters pulled up to the black car as she was calling 911.
Masters went to exit her car, but her daughter and [**19] boyfriend
told her not to because the Bronco's brake lights came on;
therefore, Masters left. Detectives from the Columbus Police
Department went to Guernsey County the next morning to
interview Masters and to show her a photo array, from which
Masters identified appellant as the driver of the Bronco.
[*P30] Moreover, appellant knew the shotgun was in the vehicle.
According to Columbus Police Detective Wayne Buck, appellant
told him Vinson got the shotgun out prior to stopping at the
intersection, that the gun was on Vinson's lap, and that Vinson had
it raised up to the window prior to them stopping at the red light.
Appellant also told Detective Buck that this was not a planned act
and that the gun was out because Walton was following appellant.
[*P31] Appellant testified there was no plan to shoot Walton and
that the only reason Vinson took the gun out of the bag was
because Walton began following the Bronco containing appellant
and his family. Cynthia also testified that Walton followed the
Bronco for several blocks and that the Bronco was stopped first at
10

the red light when Walton pulled up next to them and reached
down as if reaching for a weapon.
[*P32] However, based on the evidence and the testimony of the
witnesses, viewed in a light most favorable to the prosecution, as is
required, we cannot say there is insufficient evidence to support
the murder conviction based on complicity. The evidence offered
demonstrated appellant was the driver of the vehicle from which
Vinson fired a shot from a shotgun, of which appellant was aware
was being aimed out the window. Further, the testimony of Wilson
and Masters indicates Walton was stopped near the intersection
when the Bronco pulled up next to Walton and does not support
appellant's testimony that they were being followed by Walton.
Thus, we cannot say there was insufficient evidence for the trial
court as trier of fact to conclude appellant aided and abetted
Vinson, or to make the inference that appellant shared Vinson's
intent in the commission of the crime. See Garner, supra.
[*P33] Similarly, we cannot say that the conviction is against the
manifest weight of the evidence. The basis for appellant's
manifest-weight challenge is the witnesses' conflicting testimony
and inconsistencies with respect to some of the details surrounding
the events. Essentially, appellant challenges the witnesses'
credibility.
[*P34] All of what appellant argues, however, was presented to,
and rejected by, the trier of fact. As previously stated, the weight to
be given to the evidence and the credibility of the witnesses are
issues primarily for the trier of fact. DeHass, supra. While this case
does indeed turn on circumstantial evidence, as we indicated
previously, the Supreme Court of Ohio has held that "[a]
conviction can be sustained based on circumstantial evidence
alone." State v. Franklin (1991), 62 Ohio St.3d 118, 124, 580
N.E.2d 1, citing State v. Nicely (1988), 39 Ohio St.3d 147, 154-55,
529 N.E.2d 1236. In fact, circumstantial evidence may "'"be more
certain, satisfying and persuasive than direct evidence."'" State v.
Ballew, 76 Ohio St.3d 244, 249, 1996 Ohio 81, 667 N.E.2d 369,
quoting State v. Lott (1990), 51 Ohio St.3d 160, 167, 555 N.E.2d
293, quoting Michalic v. Cleveland Tankers, Inc. (1960), 364 U.S.
325, 330, 81 S.Ct. 6, 11, 5 L. Ed. 2d 20. Furthermore, a conviction
is not against the manifest weight of the evidence simply because
the trier of fact chose to believe the prosecution's witnesses and to
not believe appellant. State v. Rippey, 10th Dist. No. 04AP-960,
2005 Ohio 2639.
[*P35] After carefully reviewing the trial court's record in its
11

entirety, we conclude that there is nothing to indicate that the trier
of fact clearly lost its way or that any miscarriage of justice
resulted. Consequently, we cannot say that appellant's murder
conviction is against the manifest weight of the evidence.
[*P36] Regarding his conviction for having a weapon while under
disability, appellant argues there was no evidence presented that he
"ever knowingly acquired, had, carried, or used the firearm."
(Appellant's brief at 16.) Therefore, appellant contends the only
possible way to convict him of this charge was if he aided and
abetted someone with a disability. Because there is no evidence in
the record that Vinson was under a disability at the time of the
shooting, appellant contends he cannot be convicted of having a
weapon while under disability.
[*P37] Appellant was found guilty of having a weapon while
under disability ("WUD") in violation of R.C. 2923.13, which
provides in pertinent part:
(A) Unless relieved from disability as provided in section 2923.14
of the Revised Code, no person shall knowingly acquire, have,
carry, or use any firearm or dangerous ordnance, if any of the
following apply:

***
(3) The person is under indictment for or has been
convicted of any offense involving the illegal
possession, use, sale, administration, distribution, or
trafficking in any drug of abuse or has been
adjudicated a delinquent child for the commission
of an offense that, if committed by an adult, would
have been an offense involving the illegal
possession, use, sale, administration, distribution, or
trafficking in any drug of abuse.

[*P38] Here, it was stipulated that appellant was under indictment
for possession of cocaine at the time of the offense, thus appellant's
argument hinges on the notion that he did not possess the gun at
issue.
[*P39] In order to "have" a firearm, one must either actually or
constructively possess it. State v. Hardy (1978), 60 Ohio App.2d
325, 327, 397 N.E.2d 773; State v. Messer (1995), 107 Ohio
12

App.3d 51, 56, 667 N.E.2d 1022. "Constructive possession exists
when an individual exercises dominion and control over an object,
even though that object may not be within his immediate physical
possession." State v. Wolery (1976), 46 Ohio St.2d 316, 329, 348
N.E.2d 351, cert. denied, 429 U.S. 932, 97 S. Ct. 339, 50 L. Ed. 2d
301. Constructive possession may also be achieved by means of an
agent. Hardy, at 327; United States v. Clemis (C.A.6, 1993), 11
F.3d 597, cert. denied, 511 U.S. 1094, 114 S. Ct. 1858, 128 L. Ed.
2d 481 (constructive possession of a firearm exists when a
defendant knowingly has the power and intention at any given
time to exercise dominion and control over a firearm, either
directly or through others). Moreover, we recognize that
constructive possession of a weapon, even absent actual physical
possession, may be established by a totality of evidence
establishing an accomplice relationship between the physical
possessor and his or her accomplice. State v. McConnell (Oct. 13,
1983), 8th Dist. No. 45294, 1983 Ohio App. LEXIS 13756. Thus,
if appellee proved beyond a reasonable doubt that appellant
constructively possessed the firearm, then appellant could indeed
be found guilty of having a weapon while under disability, and
whether or not Vinson had a disability would be irrelevant.
[*P40] From the testimony, including that of appellant, although
Vinson used the weapon, appellant had knowledge of its presence.
Appellant testified he knew Vinson obtained the gun a few days
prior to the shooting, knew the gun was in the vehicle on the day of
the shooting, and saw Vinson hold the gun up to the window upon
stopping at the intersection. Further, regarding the gun, appellant
testified, "I always drive the truck, so it stayed on the passenger's
side like in the behind on the side of the passenger's side." (Tr.
256.)
[*P41] Based on the record, we find sufficient evidence that
appellant possessed the firearm. State v. Ridley, 10th Dist. No.
03AP-1204, 2005 Ohio 333 (defendant and accomplice who used
the gun to commit robbery were in close proximity of gun such
that it was easily accessible to defendant and one could find
possession for purposes of WUD charge); State v. Dorsey, 10th
Dist. No. 04AP-737, 2005 Ohio 2334 (The defendant had the
ability to exercise dominion and control over the firearm found in
between the console and the passenger's seat, thus he
constructively possessed it.). Furthermore, we cannot say the trial
court clearly lost its way or that the conviction constitutes a
manifest miscarriage of justice.

13

[*P42] For the foregoing reasons, appellant's second assignment of
error is overruled.
State v. Chatman, 2009 Ohio 2504, ¶¶ 22-41.
The court of appeals was careful to distinguish between the questions of sufficiency of
the evidence and manifest weight of the evidence. Only the sufficiency of the evidence claim
can be considered in habeas corpus because Federal habeas corpus is available only to correct
federal constitutional violations. 28 U.S.C. §2254(a); Wilson v. Corcoran, 562 U.S. ___, 131 S.
Ct. 13; 178 L. Ed. 2d 276 (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).

The Due Process Clause of the Fourteenth Amendment prohibits a conviction on

insufficient evidence. Jackson v. Virginia, supra. However there is no federal constitutional
right to a new trial when the conviction is against the manifest weight of the evidence.
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
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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. §
2254(d)(2).
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).
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).
Having reviewed the court of appeals’ decision on the sufficiency of the evidence
questions, this Court cannot say that they are objectively unreasonable applications of Jackson v.
Virginia. Petitioner’s Second Ground for Relief should be dismissed with prejudice. Because
reasonable jurists would not disagree with this conclusion, Petitioner should be denied a
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certificate of appealability on this Ground for Relief.

Ground Three: Denial of Right to Confrontation and Compulsory Process

In his Third Ground for Relief, Petitioner claims the trial court denied him the right to
present a complete defense and his rights under the Confrontation Clause. The cognate claim on
direct appeal was the third assignment of error which the court of appeals decided as follows:
[*P43] In his third assignment of error, appellant contends the trial
court denied him the ability to present a complete defense. Under
this assigned error, appellant asserts he desired to call Vinson as a
witness but was precluded because the prosecution indicated it
would withdraw Vinson's plea bargain if Vinson testified for
appellant. Also under this assigned error, appellant asserts the trial
court erred in not requiring Vinson to take the stand to determine
whether or not he would assert his Fifth Amendment rights. In
support of this argument, appellant relies on Columbus v. Cooper
(1990), 49 Ohio St.3d 42, 550 N.E.2d 937.
[*P44] The trial court, however, committed no error in either
regard. As the record reflects, the trial court stated:
Certainly, if you would like to call him as a witness
and you believe that he may testify, you can call
him, and we will see whether or not he asserts his
Fifth Amendment rights. If he does so, we can do
that. (Tr.19.)
[*P45] Moreover, even if appellant had called Vinson to testify, as
recently stated by this court in State v. Whiteside, 10th Dist. No.
08AP-602, 2009 Ohio 1893, despite the defendant's reliance on
Cooper, there is no "right" of a defendant to call a witness solely
for the purpose of invoking his or her Fifth Amendment rights. Id.
at P58, citing State v. Reed, 10th Dist. No. 08AP-20, 2008 Ohio
6082, P54. The Supreme Court of Ohio in State v. Kirk (1995), 72
Ohio St.3d 564, 1995 Ohio 204, 651 N.E.2d 981, expressly limited
and distinguished Cooper and held that a trial court may exclude a
person from appearing as a witness on behalf of a criminal
defendant at trial if the court determines that the witness will not
offer any testimony but merely intends to assert the Fifth
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Amendment privilege against self-incrimination. Id. at paragraph
one of the syllabus.
[*P46] Despite Kirk's holding, appellant relies on State v. Reiner
(2001), 93 Ohio St.3d 601, 2001 Ohio 1800, 757 N.E.2d 1143
("Reiner II"). This court has noted, however, in previous cases that
while persuasive, Reiner II was a plurality decision and, therefore,
is not controlling. See Whiteside; Reed. Also, as noted in
Whiteside, Reiner II did not discuss Kirk, and our research has
revealed no case that has cited Reiner II for the proposition set
forth by appellant. Instead, Kirk continues to be cited for its
holding that a trial court may exclude a person from appearing as a
witness on behalf of a criminal defendant at trial if the court
determines that the witness will not offer any testimony but merely
intends to assert the Fifth Amendment privilege against selfincrimination. Whiteside, at P60.
[*P47] Therefore, while it does not appear the trial court ever
precluded appellant from calling Vinson as a witness, even if
appellant had made such a request, the record reflects a strong
indication that Vinson would have asserted only his Fifth
Amendment rights, and, therefore, there would be no error in the
trial court's exclusion of such testimony.
[*P48] Accordingly, appellant's third assignment of error is
overruled.
State v. Chatman, 2009 Ohio 2504, ¶¶ 43-48.
It is difficult to tell what Petitioner might mean by claiming a Confrontation Clause
violation here. The Confrontation Clause applies only to testimony against a defendant, and
Petitioner points to no testimony against him which did not happen in open court, subject to
cross-examination.
As to the claim that he was precluded from presenting a complete defense by not being
able to put his co-defendant on the stand, the court of appeals notes that he was not prevented
from doing so if the co-defendant had helpful testimony to offer. On the other hand, there is no
federal constitutional right to put a co-defendant on the stand to force him or her to plead the
privilege against self-incrimination because that is not testimony and not relevant to whether or
17

not a defendant is himself guilty: while the jury improperly may infer a person’s guilt from his
pleading the Fifth Amendment, it is in fact not an admission.

Conclusion

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 this Court should certify to the Sixth
Circuit that and appeal would not be taken in objective good faith and therefore should not be
permitted to proceed in forma pauperis.
March 25, 2013.
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 one of the methods of service listed in Fed. R. Civ.
P. 5(b)(2)(C), (D), (E), or (F). 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 (6th Cir. 1981); Thomas v. Arn, 474 U.S. 140 (1985).

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