McNew v. Warden, Lebanon Correctional Institution

Filing 10

REPORT AND RECOMMENDATIONS - re 1 - It is respectfully recommended that the Petition herein 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. Objections to R&R due by 8/15/2013. Signed by Magistrate Judge Michael R Merz on 7/29/2013. (kje1)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT DAYTON
MICHAEL A. McNEW,
Petitioner,

:

- vs -

Case No. 3:13-cv-015
District Judge Walter Herbert Rice
Magistrate Judge Michael R. Merz

ERNIE MOORE, WARDEN,
Lebanon Correctional Institution,
:
Respondent.

REPORT AND RECOMMENDATIONS

This is an action for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner
McNew avers that he is serving a term of imprisonment of fifteen years to life in the custody of
Respondent Ernie Moore, Warden of the Lebanon Correctional Institution, upon his conviction
in the Montgomery County Common Pleas Court on one count of rape and one count of gross
sexual imposition (Petition, Doc. No. 1, ¶ 1, 3, 5, PageID 1.)
McNew pleads the following Grounds for Relief:
Ground One: I was denied the right to confrontation guaranteed
by the 6th and 14th Amendments to the U.S. Constitution.
Supporting Facts: The State courts permitted the introduction of
testimonial statements of the accuser, who did not testify, through
the testimony of Det. Sisher [sic], Ofc. Knedler, and Ofc. Philips.
These violations were not harmless error and the state court of
appeals failed to apply the applicable federal law.
Ground Two: I was denied due process and denied a fair trial as
guaranteed by the 5th and 14th Amds. because there was
insufficient evidence of the accuser’s age.

1

Supporting Facts:
The evidence presented at trial was
insufficient to support the conclusion that the accuser was under
the age of 13, an element that the state was required to prove
beyond a reasonable doubt.
Ground Three: The numerous hearsay and confrontation clause
violations cumulatively operated to deny me due process and a fair
trial in violation of the 5th and 14th Amendments.
Supporting Facts: Any of the previous violations, standing alone,
is sufficient grounds for the issuance of a writ; however, combined
they resulted in a denial of due process and the denial of a right to
a fair trial.
(Petition, Doc. No. 1, PageID 5-8.)

Procedural History

Petitioner Michael McNew was indicted by the Montgomery County grand jury in May,
2007, on two counts of rape, one count of attempted rape, and one count of gross sexual
imposition, all with the specification that the victim was under thirteen years of age. By the time
of the first trial in this case, the third and fourth counts had been dismissed and the remaining
counts of rape and gross sexual imposition renumbered as counts one and two. McNew was
found guilty of those two counts by a jury, but the conviction was reversed and remanded for a
new trial. At a second trial, McNew was again found guilty by a jury and sentenced to the term
of imprisonment he is now serving. This time the Second District Court of Appeals affirmed the
conviction. State v. McNew, 2011 Ohio 6179, 2011 Ohio App. LEXIS 5066 (2nd Dist. Dec. 2,
2011). McNew unsuccessfully sought further review by the Ohio Supreme Court, State v.
McNew 131 Ohio St. 3d 1486 (2012). After that court denied review, he timely filed the instant
habeas corpus action.

2

Respondent pleads no affirmative defenses, but contends the Petition is without merit.

Ground One: Confrontation Clause Violations

In his First Ground for Relief, McNew asserts that his rights under the Confrontation
Clause were violated on numerous occasions by the admission of hearsay testimony against him.
In particular he complains of testimony from Dayton Police Officers Phillips, Knedler and
Swisher1.
Respondent asserts that these claims were decided on the merits by the Second District
Court of Appeals and that decision is entitled to deference under the AEDPA, particularly 28
U.S.C. § 2254(d)(1)(Answer, Doc. No. 7, PageID 1947-48.) McNew responds that, although
these claims were presented as both hearsay and Confrontation Clause claims to the Ohio courts,
they decided only the hearsay questions. “As such,” he asserts, “AEDPA deference does not
apply and this Court must address the questions of law and fact de novo.” (Reply, Doc. No. 9,
PageID 1974, citing Henderson v. Palmer, 2007 U.S. Dist. LEXIS 54742 (E.D. Mich.2 2007),
and Maples v. Stegall, 340 F.3d 433 (6th Cir. 2003).
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 law on AEDPA

1
2

Mistyped as “Sisher” in the Petition.
McNew cites Henderson as a Sixth Circuit case, but it is in fact a district court decision.

3

deference has developed since the cases cited by McNew were decided.
Richter and Packer appear to require AEDPA deference where a
federal issue has been raised but the state court has denied the
claim with a discussion solely of state law. See Childers v. Floyd,
642 F.3d 953, 968-69 (11th Cir. 2011). The Supreme Court has
recently granted certiorari in a case that may definitively resolve
this issue. See Cavazos v. Williams, 132 S. Ct. 1088, 181 L. Ed. 2d
806 (2012).
Moreland v. Bradshaw, 699 F. 3d 908, 931 (6th Cir. 2012).3 Thus even if the Ohio courts appear
to have decided only the hearsay questions, Confrontation Clause claims were presented to them
and they must b e read to have decided those claims. Of course, if a particular piece of testimony
is not hearsay, its admission will not offend the Confrontation Clause.
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme Court held that the
Confrontation Clause bars “admission of testimonial statements of a witness who did not appear
at trial unless he was unavailable to testify, and the defendant has a prior opportunity for crossexamination…” Id. at 53-54. The testimony of which McNew complains must be measured
against this standard.
McNew raised his Confrontation Clause claims in his second assignment of error on
appeal. The Second District Court of Appeals decided the claims as follows:
[*P53] "APPELLANT'S RIGHT TO CONFRONTATION
UNDER THE SIXTH AMENDMENT TO THE UNITED
STATES CONSTITUTION AND UNDER THE OHIO
CONSTITUTION WAS VIOLATED BY THE ADMISSION OF
HEARSAY TESTIMONY."
[*P54] McNew contends that, in several instances, he was
deprived of his right to confront the witnesses against him by the
court's allowance of hearsay testimony. He claims that these errors
related to the reasons for our reversal of his prior conviction and
were "even more egregious than the first time." He provides
3

As of the date of this Report, the Supreme Court has not decided the Cavazos case.

4

"examples" of hearsay testimony, but asserts that the list of
examples is "not exhaustive."
[*P55] Evid.R. 801(C) defines hearsay as a "statement, other than
one made by the declarant while testifying at the trial or hearing,
offered in evidence to prove the truth of the matter asserted." A
"statement," as included in the definition of hearsay, is an oral or
written assertion or nonverbal conduct of a person if that conduct
is intended by the person as an assertion. Evid.R. 801(A). "An
assertion, for hearsay purposes, is a statement about an event that
happened or a condition that existed." In re K.B., Franklin App.
No. 06AP-04, 2006 Ohio 5205, ¶23, citing State v. LaMar, 95
Ohio St. 3d 181, 2002 Ohio 2128, ¶61, 767 N.E.2d 166.
[*P56] First, McNew contends that Detective Swisher "testified to
the jury that he had information that Mr. McNew was wrapped in a
comforter from [A.C.]'s bedroom" the night he was arrested.
McNew claims that this testimony was improper hearsay because
the victim was not present for cross-examination, although the
victim was not the source of the "information" in question.
[*P57] Before Swisher testified, two police officers who
responded to the house on August 25, 2007, testified about what
they had observed at the house that night. Officers Knedler and
Hammann testified that when they were standing outside, lights
were on inside the house and they observed McNew come down
the stairs from the second floor two times. Officer Knedler testified
that, the first time McNew came down the stairs, he was wearing a
"light-colored, what looked like a robe or a cape." Officer
Hammann testified that, the first time McNew came down, he was
wearing "just a bed sheet, comforter, that type of thing, wrapped
around him *** the comforter appeared to be purple, white, pink."
Both men testified that McNew later came downstairs dressed in
street clothes.
[*P58] Officer Hammann further testified that, when the officers
later entered the house to collect evidence, he saw the comforter in
the victim's room that he had seen McNew wearing, and it was
collected as evidence.
[*P59] McNew's hearsay argument relates to an exchange at trial
in which Detective Swisher was being questioned on direct
examination about his interview with McNew at the Safety
Building the night of McNew's arrest:
[*P60] SWISHER "I asked him if he would go over with me that
5

night what he had done, what had occurred. He stated that night he
had went out with some friends, with his wife ***, and that they
had consumed — he probably consumed three or four beers.
[*P61] ***
[*P62] "He stated after the evening out with his wife, that he came
home and then he went to sleep with [his wife] in her bed. He
stated he took all his clothes off and got in her bed naked to sleep.
He stated he was woke up by a knock on the door. He stated he got
up, put a pair of Dockers pants on and an orange golf shirt and got
the dog and took the dog out the backdoor to use the bathroom.
[*P63] "***
[*P64] STATE: "Did he indicate anything to you about this
blanket he was seen wearing?
[*P65] SWISHER: "I asked him about. [sic] I told him I had
information that he was wrapped in a comforter from [the victim's]
bedroom. He stated he had no knowledge of that and that at no
time did he touch her in any manner or have the blanket on.
[*P66] STATE: "Did he indicate to you whether or not he went
into her room that night.
[*P67] SWISHER: "He told me that he never went in the room."
[*P68] In our view, Swisher's testimony was not offered to
establish whether McNew was draped in the victim's comforter
when officers saw him through the windows. Swisher recounted
McNew's statements to the police to highlight some inconsistences
between McNew's own statements and the accounts of the officers
who responded to the scene, and perhaps to explain why they
collected the comforter as evidence. Moreover, this testimony was
offered only after Officers Knedler and Hammann had already
testified to the same facts based on their own observations. For
these reasons, Swisher's testimony was not hearsay and did not
deprive McNew of his right to confront the witnesses against him.
[*P69] Second, McNew contends that Officer Knedler "testified as
to things that were told to him after conversations had occurred
with the child that led him to take the child to [the hospital]." He
claims that Knedler's testimony, "through double hearsay from the
child to [Detective] Olinger and from Olinger to Knedler," violated
his right to confront the witnesses against him.
6

[*P70] In McNew I, Knedler testified that, when he was dispatched
to the victim's house, he was told "that there was an 11-year-old
female *** who was saying that she was molested by her stepfather." We concluded that this testimony was offered for the truth
of the matter asserted and was impermissible hearsay, but that it
was cumulative of the victim's 911 call, which had been properly
admitted. Moreover, defense counsel had not objected to Knedler's
testimony, so we reviewed the alleged error only for plain error,
i.e., error that clearly affected the outcome of the case. We
concluded that Knedler's statement about the reason for his
dispatch did not rise to the level of plain error under the
circumstances presented.
[*P71] In this appeal, McNew objects to different testimony from
Knedler. Knedler testified that he was instructed by Detective
Olinger to transport the victim to Children's Medical Center to be
examined by a doctor and that, when they arrived at the hospital,
he informed the staff "why we were there." No details about the
nature of the offense, as related by the dispatcher, or about his
conversations with hospital staff (if any) were recounted at trial.
Although Knedler's testimony did suggest that the victim had made
some allegation of abuse, it did not suggest the nature of her
statement and was not analogous to Knedler's objectionable
testimony at the first trial. Because Knedler's testimony did not
suggest the content of the victim's statements to police officers, it
was not hearsay under Evid.R. 801.
[*P72] Third, McNew contends that the "most glaring" violation of
his right to confront his accusers came during the testimony of
Detective Swisher about why he swabbed McNew's hand and what
part of the hand he swabbed:
[*P73] STATE: [Referring to Exhibit 13-B] "*** [W]hen it says
saliva standard on there, do you mean that you collected saliva
again on that swab?
[*P74] SWISHER: "No.
[*P75] STATE: "Okay. What does it mean?
[*P76] SWISHER: "It means that I took that cotton tipped swab
and swabbed his hand, his right hand.
[*P77] STATE: "Okay. Now let's talk about that for just a
moment. You indicated that you swabbed his hand. Now - - and
7

you wrote on there is [sic] hand, do you mean his hand or what did
you swab?
[*P78] SWISHER: "No. I swabbed his index finger and his middle
finger on this right hand.
[*P79] STATE: "Okay. And why did you do that?"
[*P80] [OBJECTION AND SIDEBAR]
[*P81] STATE: "Detective, you actually conferred with Detective
Olinger, correct?
[*P82] SWISHER "That is correct.
[*P83] STATE: "Okay. And after conferring with him and
interviewing the Defendant in the case, it was — the decision was
made to swab his fingers.
[*P84] SWISHER "That is correct.
[*P85] ***
[*P86] STATE: "And why did you decide to swab his fingers?
[*P87] SWISHER: "Because of the disclosure that the victim had
made to Detective Olinger.
[*P88] STATE: "Okay. About digital penetration?
[*P89] SWISHER: "Yes."
[*P90] At the sidebar, the State defended the appropriateness of its
question, saying "a detective has to explain the context for why he
did a certain thing." The State also pointed out that there had been
"multiple pieces of evidence admitted *** that [McNew] put his
fingers inside of [the victim]." In response, defense counsel
pointed out that "he [Swisher] never talked to the nurse and there's
no evidence or representations of digital representation [sic] on the
9-1-1 tape," suggesting that the information upon which Swisher
relied had to have come from the victim. The trial court overruled
McNew's objection to this testimony because "it [did] not come
from testimonial," as long as Swisher did not "go into anything
specific."
[*P91] We agree with McNew that Swisher's testimony that the
8

victim had told Detective Olinger about the alleged digital
penetration was hearsay and that it did not fall within any
exception to the hearsay rule. The trial court should not have
allowed this testimony. In our view, however, this statement from
Swisher was harmless beyond a reasonable doubt because the same
information — the victim's allegation of digital penetration — was
before the jury through the properly admitted testimony of the
nurse. Thus, the error does not require reversal of McNew's
conviction.
[*P92] Having considered and rejected all of McNew's arguments
that he was denied a fair trial due to the admission of improper
hearsay, his second assignment of error is overruled.
State v. McNew, 2011 Ojhio 6179, ¶¶ 53-92, 2011 Ohio App. LEXIS 5066 (2nd Dist. Dec. 2,
2011).

1.

Officer Terry Phillips

McNew complains in this Ground for Relief about testimony from Dayton Police Officer
Terry Phillips. Testimony from Phillips was not discussed by the Second District Court of
Appeals in its decision. However, testimony from Phillips was complained of in McNew’s
Second Assignment of Error where it was alleged:
Officer Phillips also testified that he was initially informed that the
person Knedler believed to be a suspect was inside of the
residence. The testimony from Phillips at this point in time
demonstrated that the only person the [sic] he had spoken to was
the juvenile female on the front porch.

(Appellant’s Brief, Doc. No. 6-2, PageID 298, citing second trial transcript at 198-199, PageID
1469-1470.)
McNew also raised a Confrontation Clause claim about Phillips’ testimony at the first
trial. There the Court of Appeals wrote:
9

[*P79] Officer Terry Phillips testified:
[*P80] "Q. And officer, at some point, did you ask [A.C.] what

was going on or what had happened?
[*P81] "A. Yes, I did.
[*P82] "Q. And not to go into specific what she told you about,

did, in fact, [A.C.] tell you what happened that night?
[*P83] "A. Yes, she did.
[*P84] "Q. And based upon that information, what did you next?
[*P85] "A. At that time, we called Sergeant Hammann out to the

scene.
[*P86] "Q. Let me ask you that, at that point, why did you request

that Sergeant Hammann come out to the scene?
[*P87] "A. It's policy of the Dayton Police Department, when we

have any type of rape call, especially when it's involving children,
to call a supervisor out to the scene." (T. 252).
State v. McNew, 2009 Ohio 5531, ¶¶ 79-87, 2009 Ohio App. LEXIS 4652 (2nd Dist. Oct. 16,
2009). The Court of Appeals concluded the victim’s statements to Phillips were testimonial in
nature because there was no ongoing emergency and that it was therefore a violation of
McNew’s Confrontation Clause rights to admit these statements. Id. at ¶ 90.

Because no

objection was made, the court found no plain error in admitting the statements because they were
cumulative to the admissible statements made by others. Id. at ¶ 91.
McNew argues that Phillips’ testimony at the second trial was “similar” to his testimony
at the first trial (Reply, Doc. No. 9, PageID 1976). He then goes on to rely heavily on the
analysis the Second District made of Phillips’ testimony at the first trial. In the first appeal, the
Second District noted “[t]he jury could infer from Officer Phillips’ testimony that when he talked
to A.C. she told him that she had been raped by Defendant.” Id. at ¶ 89. However, Phillips’

10

testimony in the second trial is much more circumspect. He did not tell the second jury that A.C.
told him what happened that night and in response he called Sgt. Hammann because it was a rape
call, as he had done in the first trial. The record does not establish, as his appellate attorney
argued, that the only person he talked to before calling Sgt. Hammann was A.C. In fact, he
testified he spoke briefly to Officer Knedler and then called Sgt. Hammann (2nd Trial Tr. at
PageID 1469). Nor does he repeat the damaging testimony from the first trial that the reason for
calling Hammann is because that is what the Dayton Police do when they get a rape allegation.
Phillips’ testimony at the second trial did not violate either the hearsay rule or the
Confrontation Clause because it did not amount to a repetition to the jury of anything A.C. told
Phillips. It was instead merely testimony to show the predicate for what Phillips did next, based
on his conversation with Officer Knedler, who testified and was subject to cross-examination.

2.

Officer Chad Knedler

In the second trial, McNew objected to different testimony from Officer Chad Knedler
than he had objected to at the first trial. State v. McNew, 2011 Ohio 6179, ¶ 71, 2011 Ohio App.
LEXIS 5066 (2nd Dist. 2011). The objection was raised on appeal as part of McNew’s second
assignment of error and the court of appeals held:
[*P71] In this appeal, McNew objects to different testimony from

Knedler. Knedler testified that he was instructed by Detective
Olinger to transport the victim to Children's Medical Center to be
examined by a doctor and that, when they arrived at the hospital,
he informed the staff "why we were there." No details about the
nature of the offense, as related by the dispatcher, or about his
conversations with hospital staff (if any) were recounted at trial.
Although Knedler's testimony did suggest that the victim had made
some allegation of abuse, it did not suggest the nature of her
statement and was not analogous to Knedler's objectionable
11

testimony at the first trial. Because Knedler's testimony did not
suggest the content of the victim's statements to police officers, it
was not hearsay under Evid.R. 801.
Id. at ¶ 71.
McNew argues that this determination of the court of appeals “is an unreasonable
application of the facts on record.” (Reply, Doc. No. 9, PageID 1979. In particular, he claims
Knedler told the hospital staff “’why we were there’ and that ‘why we were there’ meant that
A.C. had accused her father of raping her.” Id., citing Trial Tr. at PageID 1452-53 and PageID
1542. The relevant testimony from Knedler reads as follows:
Q Okay. After he [McNew] was placed in Officer Phillips' cruiser,
what did you do then?
A I waited on scene until I was instructed by Detective Olinger to
transport Abby to Children's Medical Center.
Q Okay. And why did you take Abby to Children's Medical
Center?
A For a, what do you call it
Q Well, let me ask you this; did did you take her to Children's
Medical Center so she could be examined by a doctor?
A Yes.
Q Okay. And what you do, then, when you got to Children's
Medical Center?
A I informed hospital staff why we were there, waited for children
services to arrive, and stayed with Abby.
PageID 1452-1453.
The testimony at PageID 1542 is not from Knedler at all, but from Dayton Children’s
Hospital nurse Evelyn Williams. While Nurse Williams did testify to what Dayton Police told
her about why A.C. was there, no objection was made to her testimony at trial and no assignment

12

of error was made in the court of appeals, presumably because it came within the statements for
medical treatment exception to the hearsay rule.
Upon review of Officer Knedler’s testimony, the Court finds the decision of the Second
District is not based on an unreasonable determination of the facts from the record. The Court
agrees with that court that nothing Knedler said on the witness stand conveyed to the jury some
uncross-examined statement of A.C. To the extent Knedler conveys the content of any statement
at all, it is the verbal order of Sgt. Hammann about what he is to do and verbal orders are not
encompassed within the hearsay rule because they are not assertions of fact. See Ohio R. Evid.
801(A).

3.

Detective William Swisher

McNew’s complaint about Detective Swisher’s testimony was also part of his Second
Assignment of Error on appeal after the second trial. The court of appeals decided that claim as
follows:

[*P72] Third, McNew contends that the "most glaring" violation

of his right to confront his accusers came during the testimony of
Detective Swisher about why he swabbed McNew's hand and what
part of the hand he swabbed:
[*P73] STATE: [Referring to Exhibit 13-B] "*** [W]hen it says

saliva standard on there, do you mean that you collected saliva
again on that swab?
[*P74] SWISHER: "No.
[*P75] STATE: "Okay. What does it mean?

13

[*P76] SWISHER: "It means that I took that cotton tipped swab

and swabbed his hand, his right hand.
[*P77] STATE: "Okay. Now let's talk about that for just a

moment. You indicated that you swabbed his hand. Now - - and
you wrote on there is [sic] hand, do you mean his hand or what did
you swab?
[*P78] SWISHER: "No. I swabbed his index finger and his

middle finger on this right hand.
[*P79] STATE: "Okay. And why did you do that?"
[*P80] [OBJECTION AND SIDEBAR]
[*P81]

STATE: "Detective, you actually conferred with
Detective Olinger4, correct?
[*P82] SWISHER "That is correct.
[*P83] STATE: "Okay. And after conferring with him and

interviewing the Defendant in the case, it was — the decision was
made to swab his fingers.
[*P84] SWISHER "That is correct.
[*P85] ***
[*P86] STATE: "And why did you decide to swab his fingers?
[*P87] SWISHER: "Because of the disclosure that the victim had

made to Detective Olinger.
[*P88] STATE: "Okay. About digital penetration?
[*P89] SWISHER: "Yes."
[*P90] At the sidebar, the State defended the appropriateness of

its question, saying "a detective has to explain the context for why
he did a certain thing." The State also pointed out that there had
been "multiple pieces of evidence admitted *** that [McNew] put
his fingers inside of [the victim]." In response, defense counsel
pointed out that "he [Swisher] never talked to the nurse and there's
no evidence or representations of digital representation on the 9-14

Detective Olinger had died by the time of the second trial.

14

1 tape," suggesting that the information upon which Swisher relied
had to have come from the victim. The trial court overruled
McNew's objection to this testimony because "it [did] not come
from testimonial," as long as Swisher did not "go into anything
specific."
[*P91] We agree with McNew that Swisher's testimony that the

victim had told Detective Olinger about the alleged digital
penetration was hearsay and that it did not fall within any
exception to the hearsay rule. The trial court should not have
allowed this testimony. In our view, however, this statement from
Swisher was harmless beyond a reasonable doubt because the same
information — the victim's allegation of digital penetration — was
before the jury through the properly admitted testimony of the
nurse. Thus, the error does not require reversal of McNew's
conviction.
State v. McNew, 2011 Ohio 6179 ¶¶ 72-91, 2011 Ohio App. LEXIS 5066 (2nd Dist. 2011).
McNew argues that “[t]he court of appeals found that the statement was not hearsay for
reasons that it does not clearly articulate. . . .” (Reply, Doc. No. 9, PageID 1979.) That is a
misreading of the court of appeals’ decision; they clearly held admission of this portion of
Swisher’s testimony did violate the hearsay rule and because the hearsay was from A.C. – the
allegation of digital penetration – the court inferentially held it also violated the Confrontation
Clause.
However, the court of appeals went on to hold that this constitutional violation – the only
one they found in the second trial – was harmless beyond a reasonable doubt. Constitutional
error in a habeas case is not required to be harmless beyond a reasonable doubt. Rather, error is
harmless if the habeas court is satisfied it did not have a substantial and injurious effect or
influence in determining the verdict. Brecht v. Abrahamson, 507 U.S. 619 (1993), adopting
standard from Kotteakos v. United States, 328 U.S. 750 (1946). This standard calls for reversal
when the reviewing court lacks a “fair assurance” that the outcome of a trial was not affected by
evidentiary error. Beck v. Haik, 377 F.3d 624 (6th Cir. 2004). Brecht applies post-AEDPA
15

“whether or not the state appellate court recognized the error and reviewed it for harmlessness
under the "harmless beyond a reasonable doubt" standard set forth in Chapman v. California,
386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d 705" Fry v. Pliler, 551 U.S. 112 (2007).
Confrontation Clause violations are reviewed for harmless error. Jordan v. Hurley, 397 F.3d 360
(6th Cir. 2005), citing Bulls v. Jones, 274 F.3d 329, 334 (6th Cir. 2001).
The court of appeals’ conclusion of harmlessness here is not an objectively unreasonable
application of Brecht. There was indeed far more direct evidence of digital penetration than any
that could be inferred from Swisher’s testimony, to wit, the testimony of Nurse Williams.
McNew asserts that there should be no finding of harmlessness because Ms. Williams’
testimony itself violated the Confrontation Clause (Reply, Doc. No. 9, PageID 1987). McNew
acknowledges that Williams’ testimony was admitted under the medical purpose exception to the
hearsay rule. Id. He notes that this exception, as embodied in State v. Stahl, 111 Ohio St. 3d 186
(2006), has been criticized by some other courts. Id. at PageID 1988. However, any claim that
admission of Williams’ testimony violated the Confrontation Clause is made far too late in the
Reply. No such claim is made in the Petition nor was any such claim presented to the Ohio
courts. That claim is therefore procedurally defaulted.
McNew argues against the harmlessness conclusion by arguing that the State’s case
overall was not very strong. He plays down the DNA evidence which showed that A.C.’s DNA
was on his hand in precisely the place A.C.’s statement to Nurse Williams suggests it would be
found if she had been digitally penetrated by McNew. Although the expert’s testimony that it
was “probably likely” that the DNA came from bodily fluids rather than skin-to-skin contact is
not as strong as the State might have wished, there is no doubt that it was A.C.’s DNA.
McNew writes in his Reply about testimony concerning a comforter which he was

16

allegedly observed to have had wrapped around his body when the police first arrived (Doc. No.
9, PageID 9180.) The court of appeals also considered this claim and wrote:
[*P56] First, McNew contends that Detective Swisher "testified

to the jury that he had information that Mr. McNew was wrapped
in a comforter from [A.C.]'s bedroom" the night he was arrested.
McNew claims that this testimony was improper hearsay because
the victim was not present for cross-examination, although the
victim was not the source of the "information" in question.
[*P57] Before Swisher testified, two police officers who

responded to the house on August 25, 2007, testified about what
they had observed at the house that night. Officers Knedler and
Hammann testified that when they were standing outside, lights
were on inside the house and they observed McNew come down
the stairs from the second floor two times. Officer Knedler testified
that, the first time McNew came down the stairs, he was wearing a
"light-colored, what looked like a robe or a cape." Officer
Hammann testified that, the first time McNew came down, he was
wearing "just a bed sheet, comforter, that type of thing, wrapped
around him *** the comforter appeared to be purple, white, pink."
Both men testified that McNew later came downstairs dressed in
street clothes.
[*P58] Officer Hammann further testified that, when the officers

later entered the house to collect evidence, he saw the comforter in
the victim's room that he had seen McNew wearing, and it was
collected as evidence.
[*P59] McNew's hearsay argument relates to an exchange at trial

in which Detective Swisher was being questioned on direct
examination about his interview with McNew at the Safety
Building the night of McNew's arrest:
[*P60] SWISHER "I asked him if he would go over with me that

night what he had done, what had occurred. He stated that night he
had went out with some friends, with his wife ***, and that they
had consumed — he probably consumed three or four beers.
[*P61] ***
[*P62] "He stated after the evening out with his wife, that he

came home and then he went to sleep with [his wife] in her bed.
He stated he took all his clothes off and got in her bed naked to
sleep. He stated he was woke up by a knock on the door. He stated
17

he got up, put a pair of Dockers pants on and an orange golf shirt
and got the dog and took the dog out the backdoor to use the
bathroom.
[*P63] "***
[*P64] STATE: "Did he indicate anything to you about this

blanket he was seen wearing?
[*P65] SWISHER: "I asked him about. [sic] I told him I had

information that he was wrapped in a comforter from [the victim's]
bedroom. He stated he had no knowledge of that and that at no
time did he touch her in any manner or have the blanket on.
[*P66] STATE: "Did he indicate to you whether or not he went

into her room that night.
[*P67] SWISHER: "He told me that he never went in the room."
[*P68] In our view, Swisher's testimony was not offered to

establish whether McNew was draped in the victim's comforter
when officers saw him through the windows. Swisher recounted
McNew's statements to the police to highlight some inconsistences
between McNew's own statements and the accounts of the officers
who responded to the scene, and perhaps to explain why they
collected the comforter as evidence. Moreover, this testimony was
offered only after Officers Knedler and Hammann had already
testified to the same facts based on their own observations. For
these reasons, Swisher's testimony was not hearsay and did not
deprive McNew of his right to confront the witnesses against him.
State v. McNew, 2011 Ohio 6179, ¶¶ 56-68 , 2011 Ohio App. LEXIS 5066 (2nd Dist. 2011).
The source of Swisher’s information that McNew had been wrapped in the comforter is
not A.C., but other police officers who testified and were subject to cross-examination on that
testimony. Thus there was clearly no Confrontation Clause violation with respect to this portion
of Swisher’s testimony.
The court of appeals’ decision on McNew’s Confrontation Clause claims is not an
objectively unreasonable application of Crawford v. Washington, supra, and his First Ground for
Relief should therefore be dismissed with prejudice.
18

Ground Two: Insufficient Evidence of Victim’s Age

In his Second Ground for Relief, McNew asserts the State presented insufficient evidence
to prove A.C.’s age. He is of course correct that proving she was under thirteen at the time of the
offense was an essential element of the crimes as charged.
McNew raised this as his Third Assignment of Error on direct appeal. The court of
appeals decided the claim as follows:
[*P93]

McNew's

third

assignment

of

error

states:

[*P94] "THE STATE OF OHIO FAILED TO PROVE THAT
THE VICTIM WAS LESS THAN THIRTEEN YEARS OLD."
[*P95] McNew argues that the State failed to prove that the victim
in this case was under thirteen years of age because neither the
victim nor her parent or guardian testified.
[*P96] There is no requirement that the age of a victim be
established through her own testimony or that of a parent or
guardian. In this case, the State relied on the nurse's testimony that,
in obtaining a medical history from the victim, the victim reported
that her date of birth was September 27, 1995. The State also
presented the victim's State of Ohio Office of Vital Statistics birth
certificate, bearing the appropriate seal, which listed her date of
birth as September 27, 1995 (Ex. 14). McNew did not object to the
nurse's testimony about the victim's age. With respect to the birth
certificate, defense counsel noted the "[s]ame objection as last trial,
***. I don't think it's self-authenticating, but I have a feeling I
know what you will rule." The court admitted the exhibit.
[*P97] Although McNew asserts in his brief that the State's
evidence of the victim's age "was either hearsay or lacking in
authentication or proper foundation," he made no specific
argument in support of this position. Evid.R. 902(1) states that:
"Extrinsic evidence of authenticity as a condition precedent to
admissibility is not required with respect to the following: (1) A
document bearing a seal purporting to be that of the United States,
or of any State, *** and a signature purporting to be an attestation
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or execution." The birth certificate submitted as Exhibit 14 bears
the seal of the State of Ohio and the signature of the Local
Registrar of Vital Statistics. The document satisfied the
requirements for self-authentication set forth in Evid.R. 902(1).
Further, the nurse's testimony about the victim's age, which was
presumably based on the victim's own statements, was not hearsay
because the victim's statement was made in the course of her
treatment, and the defense did not object to the nurse's testimony.
[*P98] The third assignment of error is overruled.
State v. McNew, 2011 Ohio 6179, ¶¶ 93-98, 2011 Ohio App. Lexis 5066 (2nd Dist. 2011).
In cases such as McNew’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. §
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
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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).
McNew argues that the self-authenticating birth certificate is not enough and
hypothesizes scenarios where the State searches for any “John Smith” born in 2000 and presents
his birth certificate to prove he is under thirteen.
However, it is not only A.C.’s birth certificate which was presented, but also her
statement to Nurse Williams that her date of birth was September 27, 1995. Taken together with
the birth certificate, that is surely sufficient evidence to prove her age at the time of the offense
was under thirteen. McNew’s Second Ground for Relief should be dismissed with prejudice.

Ground Three: Cumulative Error

In his Third Ground for Relief, McNew argues that even if the constitutional violations
alleged in the other two Grounds for Relief are not enough to warrant issuing the writ by

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themselves, cumulatively they warrant relief.
The Warden argues this claim is not cognizable in habeas corpus because the Supreme
Court has not “held that distinct constitutional claims can be cumulated to support habeas corpus
relief.” (Answer, Doc. No. 7, PageID 1940, citing Williams v. Anderson, 460 F.3d 789, 816 (6th
Cir. 2006) (citing Moore v. Parker, 425 F.3d 250, 256 (6th Cir. 2005)); Scott v. Elo, 302 F.3d
598, 607 (6th Cir. 2002), cert. denied, 537 U.S. 1192 (2003); Lorraine v. Coyle, 291 F.3d 416,
447 (6th Cir. 2002), cert. denied, 538 U.S. 947 (2003).
McNew acknowledges that this is a correct statement of Sixth Circuit law, but cites to
decisions in the Ninth and Tenth Circuits to the contrary. The Magistrate Judge acknowledges
that cumulative error is an argument which can be made in good faith and does not question
McNew’s assertion that he has made it in good faith. Nonetheless, this Court is bound by the
cited published Sixth Circuit authority.
The Third Ground for Relief should therefore also be dismissed with prejudice.

Conclusion

It is respectfully recommended that the Petition herein 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.
July 29, 2013.
s/ Michael R. Merz
United States Magistrate Judge

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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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