Opinion
Case No. 3:10-cv-391.
April 7, 2011
DECISION AND ORDER
This habeas corpus case brought under 28 U.S.C. § 2254 is before the Court for decision on the merits. The parties have unanimously consented to plenary magistrate judge jurisdiction under 28 U.S.C. § 636(c) and the case has been referred on that basis (Doc. No. 8).
Mr. Ross filed his Petition with a Brief in support on October 19, 2010 (Doc. Nos. 1, 3). On the Court's Order (Doc. No. 5), Respondent has filed a Return of Writ with accompanying state court record (Doc. No. 9). Petitioner has filed no reply to the Return and the time for doing so set in the Order for Answer has expired. Therefore the case is ripe for decision.
Petitioner was convicted in the Montgomery County Common Pleas Court on four counts of gross sexual imposition on a person under the age of thirteen, one count of rape of a person under ten, and one count of possession of less than five grams of powder cocaine (Petition, Doc. No. 1, ¶ 5). He was sentenced to life imprisonment with a possibility of parole after ten years. Id. at ¶ 3. His conviction was affirmed on appeal by the Ohio Second District Court of Appeals and the Ohio Supreme Court denied leave for a further appeal. Id. at ¶ 9.
Petitioner, who is represented by counsel, pleads the following grounds for relief:
GROUND ONE: The cumulative effect of prosecutorial misconduct during the trial resulted in Petitioner's unlawful conviction.
SUPPORTING FACTS: During rebuttal closing argument, the Prosecution made repeated emotional appeals to the jury, violated the "Golden Rule" by asking the jury to identify with the parents of the alleged victims, misstated the evidentiary standard, accused defense counsel of coaching Petitioner, commented on the credibility of both the Petitioner's and the State's witnesses, and misinterpreted the testimony of the State's expert. During other portions of the trial, the Prosecution repeatedly used leading questions after being admonished by the trial court, and refused to release exculpatory evidence to Petitioner and his counsel in time for its effective use at trial. The cumulative effect of this prosecutorial misconduct denied Petitioner his right to Due Process and a fair trial.
GROUND TWO: The State's failure to disclose exculpatory materials resulted in Petitioner's unlawful conviction.
SUPPORTING FACTS: The Prosecution failed to disclose or release several types of exculpatory materials in time for those materials to be effectively used at trial, and in some cases failed to disclose those materials at all. Those materials include medical records regarding examinations of the alleged victims; interview records regarding the alleged victims; protocols used by the CARE House, the quasi-governmental entity which interviewed the alleged victims; and the alleged victims' grand jury testimony, which likely conflicted with their trial testimony. The late disclosure or non-disclosure of these exculpatory materials denied Petitioner his right to Due Process and a fair trial.
GROUND THREE: The trial court's failure to order production of the grand jury testimony resulted in Petitioner's unlawful conviction.
SUPPORTING FACTS: The testimony of the alleged victims at trial conflicted with accusations of anal rape in both the Indictment and the Bill of Particulars. At trial, the alleged victims all denied that any anal rape had occurred. Because both the Indictment and the Bill of Particulars contained allegations of anal rape, the alleged victims' testimony before the Grand Jury must have included testimony that anal rape occurred. Petitioner moved the trial court to perform an in camera inspection of the Grand Jury testimony to determine whether the alleged victim's testimony before the Grand Jury conflicted with the testimony at trial, as such a conflict would allow Petitioner to impeach his accusers. The trial court refused to order the production of the Grand Jury testimony, or to even perform an in camera inspection in order to determine whether the testimony conflicted.
GROUND FOUR: The "Cookie Cutter" indictment issued against Petitioner was structurally defective.
SUPPORTING FACTS: The Indictment was so defective that the trial court dismissed one charge and attempted [to] make six other charges more specific through the use of jury instructions. The trial court concluded that because the Indictment failed to give Petitioner sufficient notice of the acts he was alleged to have committed, so as to allow him to present a defense and avoid double jeopardy, the Indictment was structurally defective. However, the trial court did not dismiss the indictment, as it was required to do under the law, and instead attempted to cure the Indictment, which is prohibited.
GROUND FIVE: Petitioner's conviction was contrary to the weight of the evidence.
SUPPORTING FACTS: The facts that: a sixteen-year-old who admitted to having sex with the younger children was not prosecuted; the children were angry with Petitioner before making the accusations against him, the children met at a park to discuss getting Petitioner "in trouble," the children's grandmother had unrelated personal reasons to want Petitioner to suffer; along with the State's use of purely prejudicial materials and evidence; along with the trial court's refusal to allow Petitioner to impeach his accusers using their own statements in medical records, prejudiced the jury against Petitioner, and led to the jury's guilty verdict, which was contrary to the weight of the evidence.
(Return of Writ, Doc. No. 9, PageID 241-242.)
Ground Five: Conviction Against the Manifest Weight of the Evidence
In Ground Five Petitioner asserts that his convictions are against the manifest weight of the evidence. Respondent correctly argues that this claim is not cognizable in federal habeas corpus.
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, 68 (1991).
Whether a conviction is against the manifest weight of the evidence is purely a question of Ohio law. In State v. Thompkins, 78 Ohio St. 3d 380, 678 N.E. 2d 541 (1997), the Ohio Supreme Court reaffirmed the important distinction between review for insufficiency of the evidence and review on the claim that the conviction is against the manifest weight of the evidence. It held:
In essence, sufficiency is a test of adequacy. Whether the evidence is legally sufficient to sustain a verdict is a question of law. State v. Robinson (1955), 162 Ohio St. 486, 55 O.O. 388, 124 N.E.2d 148. In addition, a conviction based on legally insufficient evidence constitutes a denial of due process. Tibbs v. Florida (1982), 457 U.S. 31, 45, 102, 387 S.Ct. 2211, 2220, 72 L.Ed.2d 652, 663, citing Jackson v. Virginia (1979), 443 U.S. 307, 99 S.Ct. 2781, 61 L.Ed.2d 560. Although a court of appeals may determine that a judgment of a trial court is sustained by sufficient evidence, that court may nevertheless conclude that the judgment is against the weight of the evidence. Robinson, supra, 162 Ohio St. at 487, 55 O.O. at 388-389, 124 N.E.2d at 149. 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. It indicates clearly to the jury that the party having the burden of proof will be entitled to their verdict, if, on weighing the evidence in their minds, they shall find the greater amount of credible evidence sustains the issue which is to be established before them. Weight is not a question of mathematics, but depends on its effect in inducing belief." (Emphasis added.)
When a court of appeals reverses a judgment of a trial court on the basis that the verdict is against the weight of the evidence, the appellate court sits as a "`thirteenth juror'" and disagrees with the factfinder's resolution of the conflicting testimony. Tibbs, 457 U.S. at 42, 102 S.Ct. at 2218, 72 L.Ed.2d at 661. See, also, State v. Martin (1983), 20 Ohio App.3d 172, 175, 20 OBR 215, 219, 485 N.E.2d 717, 720-721 ("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.").78 Ohio St. 3d at 387. In State v. Martin, 20 Ohio App. 3d 172, 485 N.E. 2d 717 (Hamilton Cty. 1983) (cited approvingly by the Supreme Court in Thompkins), Judge Robert Black contrasted the manifest weight of the evidence claim:
In considering the claim that the conviction was against the manifest weight of the evidence, the test is much broader. The court, reviewing the entire record, weighs the evidence and all reasonable inferences, considers the credibility of the 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.485 N.E. 2d at 718, ¶ 3 of the syllabus. The consequences of the distinction are important for a criminal defendant. The State may retry a case reversed on the manifest weight of the evidence; retrial of a conviction reversed for insufficiency of the evidence is barred by the Double Jeopardy Clause. Tibbs v. Florida, 457 U.S. 31 (1982).
Petitioner's Ground Five is not cognizable in federal habeas corpus and is therefore dismissed with prejudice.
Procedural Default: Grounds Two, Four, and Five
Respondent asserts that Grounds Two, Four, and Five are procedurally defaulted by Petitioner's failure to present them on direct appeal to the Ohio Supreme Court (Return of Writ, Doc. No. 9, PageID 248-249).
The procedural default defense in habeas corpus is described by the Supreme Court as follows:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause of the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.Coleman v. Thompson, 501 U.S. 722, 749 (1991); see also Simpson v. Jones, 238 F. 3d 399, 406 (6th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional right he could not raise in state court because of procedural default. Wainwright v. Sykes, 433 U.S. 72 (1977); Engle v. Isaac, 456 U.S. 107 (1982). Absent cause and prejudice, a federal habeas petitioner who fails to comply with a State's rules of procedure waives his right to federal habeas corpus review. Boyle v. Million, 201 F.3d 711, 716 (6th Cir. 2000); Murray v. Carrier, 477 U.S. 478, 485 (1986); Engle v. Isaac, 456 U.S. 107 (1982); Wainwright v. Sykes, 433 U.S. 72, 87 (1977). Wainwright replaced the "deliberate bypass" standard of Fay v. Noia, 372 U.S. 391 (1963).
Failure to raise a constitutional issue at all on direct appeal is subject to the cause and prejudice standard of Wainwright v. Sykes, 433 U. S. 72 (1977). Murray v. Carrier, 477 U.S. 478, 485 (1986); Mapes v. Coyle, 171 F.3d 408, 413 (6th Cir. 1999); Rust v. Zent, 17 F.3d 155 (6th Cir. 1994); Leroy v. Marshall, 757 F.2d 94 (6th Cir. 1985). Failure to present an issue to the state supreme court on discretionary review constitutes procedural default. O'Sullivan v. Boerckel, 526 U.S. 838 (1999). "Even if the state court failed to reject a claim on a procedural ground, the petitioner is also in procedural default `by failing to raise a claim in state court, and pursue that claim through the state's ordinary appellate procedures.'" Thompson v. Bell, 580 F.3d 423 (6th Cir. 2009), citing Williams v. Anderson, 460 F.3d 789, 806 (6th Cir. 2006).
Although Petitioner raised these three grounds for relief as assignments of error in the Court of Appeals, he excluded them when he appealed further to the Ohio Supreme Court. He has therefore procedurally defaulted in presenting them and they must be dismissed with prejudice. O'Sullivan, supra.
Ground One: Prosecutorial Misconduct
In Ground One Petitioner asserts that the accumulated instances of misconduct by the prosecutor in this case deprived him of a fair trial.In the Petition, Mr. Ross makes the following accusations of misconduct:
During rebuttal closing argument, the Prosecution
1. made repeated emotional appeals to the jury,
2. violated the "Golden Rule" by asking the jury to identify with the parents of the alleged victims,
3. misstated the evidentiary standard,
4. accused defense counsel of coaching Petitioner,
5. commented on the credibility of both the Petitioner's and the State's witnesses, and
6. misinterpreted the testimony of the State's expert.
During other portions of the trial, the Prosecution
7. repeatedly used leading questions after being admonished by the trial court,
8. refused to release exculpatory evidence to Petitioner and his counsel in time for its effective use at trial.
A. Procedural Default
As noted by Respondent, instances 3, 6, 7, and 8 were not presented to the Ohio Supreme Court as claims of prosecutorial misconduct (Compare Proposition of Law No. 4, Petitioner's Memorandum in Support of Jurisdiction, Ex. 35 to Return of Writ, PageID 1109).
To preserve a federal constitutional claim for consideration 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 (6th Cir. 1993); Riggins v. McMackin, 935 F.2d 790 (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). A petitioner fairly presents a federal habeas claim to the state courts only if he "asserted both the factual and legal basis for his claim. Hicks v. Straub, 377 F.3d 538 (6th Cir. 2004), citing McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir. 2000); and Picard v. Connor, 404 U.S. 270, 276, 277-78 (1971).
Because allegations 3, 6, 7, and 8 were not argued to the Ohio Supreme Court as claims of prosecutorial misconduct, they are procedurally defaulted and must be dismissed with prejudice.
B. Merits
Mr. Ross' assignment of error on direct appeal which included claims of prosecutorial misconduct was as follows:
ASSIGNMENT OF ERROR NO. 9. — THE CULMINATION OF PREJUDICIAL ERROR AND PROSECUTORIAL MISCONDUCT DURING THE TRIAL COMBINED TO UNLAWFULLY CONVICT DEFENDANT ROSS
A. The Prosecutor's persistent use of leading questions, while suggesting answers to the minor witnesses, resulted in prosecutorial misconduct depriving Defendant of a fair trial, entitling him to a new trial.
B. The Trial Court erred when it permitted the use of pornographic video tape at trial, resulting in inflammatory evidence to the extreme prejudice of Defendant Ross
C. Prosecutorial misconduct during closing arguments unfairly prejudiced the Defendant
(Appellant's Brief, Ex. 27 to Return of Writ, PageID 875.)
In deciding this Assignment of Error adversely to Petitioner, the Court of Appeals held:
[*P107] Misconduct of a prosecutor at trial will generally not be grounds for reversal unless the misconduct is so pervasive as to deprive the defendant of a fair trial. State v. Braxton (1995), 102 Ohio App.3d 28, 41, 656 N.E.2d 970. A prosecutor is afforded wide latitude in closing argument, and closing remarks must be viewed in their entirety to determine whether the disputed remarks were unfairly prejudicial. State v. Lott (1990), 51 Ohio St.3d 160, 165, 555 N.E.2d 293, citing State v. Stephens (1970), 24 Ohio St.2d 76, 82, 263 N.E.2d 773. "[When] deciding whether a prosecutor's conduct rises to the level of prosecutorial misconduct, a reviewing court must determine if the remarks were improper, and, if so, whether they actually prejudiced the substantial rights of the defendant. *** [An] appellant must demonstrate that there is a reasonable probability, that, but for the prosecutor's misconduct, the result of the proceeding would have been different." State v. Wharton, Summit App. No. 23300, 2007 Ohio 1817, at P16. "The touchstone of analysis is `the fairness of the trial, not the culpability of the prosecutor.'" Braxton, 102 Ohio App.3d at 42, quoting State v. Underwood (1991), 73 Ohio App.3d 834, 840-841, 598 N.E.2d 822.
This lengthy quotation omits paragraphs dealing with trial court error or claims of prosecutorial misconduct which are procedurally defaulted.
* * *
[*P113] Ross also alleges that numerous instances of prosecutorial misconduct during closing argument deprived him of a fair trial.
[*P114] First, Ross asserts that the prosecutor reserved an excessive amount of time for rebuttal and then unfairly used that time to present new arguments. He claims that the rebuttal closing argument was "filled with emotional appeal and inappropriate comments," such as accusations that defense counsel coached Ross in the hall during his testimony and that defense counsel intentionally mistreated and confused the child-witnesses.
[*P115] The amount of time reserved by the State for rebuttal was not, in itself, prejudicial to Ross, and he did not object to it. Any prejudice must be demonstrated by reference to a specific argument or specific conduct. Ross claims that the prosecution used its rebuttal "to present new arguments and attack the Defense position without response." We will address these arguments to the extent that Ross had specifically identified them, keeping in mind that we must be convinced that Ross would not have been convicted but for the alleged misconduct in order to reverse his conviction.
[*P116] Ross objected to a comment from the prosecutor about coaching of witnesses. The prosecutor pointed out that, although Ross's attorney had strongly suggested that the children had been "coached," there was no evidence of coaching. The prosecutor then stated, "And they want to talk about coaching? This defendant couldn't get through his direct examination without meeting with his attorney in the hallway during the break." The defense objected to this statement, and the trial court sustained the objection, stating "Not in evidence." The trial court could have provided a more thorough instruction for the jury to ignore this remark, although none was requested by Ross, but we are unpersuaded that the comment affected the outcome of the trial.
[*P117] The prosecutor's comment that defense counsel was attempting to mislead or confuse the child-witnesses was a fair comment on counsel's intense cross-examination of the victims about internal inconsistencies in their testimonies and inconsistencies between the victims' testimonies.
[*P118] Ross also claims that the prosecutor's comments improperly attacked his expert witness on the basis that the witness did not claim that the children had been lying about the abuse when, in fact, the witness was not permitted to comment on the children's truthfulness. The portion of the argument to which Ross refers was the prosecutor's attempt to rebut defense counsel's assertion, during Ross's closing argument, that the alleged victims had been coached into their version of events. The prosecutor stated:
[*P119] "And as far as coaching, what evidence was there of that? Their own expert did not say that. He didn't like the way some of the questions were asked. He thought there were some leading questions in the CARE House interview, but he did not say that [D.D.] was coached. And what else did he not say? He didn't say anything about [B.B.] and [B.W.]'s interviews. He only talked about [D.D.]'s. He never said that these kids were coached. He did not say these kids were not molested. He did not say these kids were lying. That's their expert. And they want to talk about coaching. ***"
[*P120] Defense counsel talked at length about coaching of the child-victims in his closing argument, although no witness had testified to this fact. Although it was arguably improper for the State to mention that Ross's expert did not accuse the children of lying, when such testimony would not have been permitted, the comment was not unfairly prejudicial in light of its context. The prosecutor was entitled to some latitude in rebutting Ross's argument that the children had been coached. Moreover, the defense did not specifically object to the comment. This comment did not deprive Ross of a fair trial.
[*P121] Ross also contends that the prosecutor improperly vouched for the truthfulness of the alleged victims. The context of the comment was as follows:
[*P122] "***[D]efense counsel [was] tough on these kids. That's his job. But I am going to point out that these kids held their own.
[*P123] "How many questions were they asked on cross-examination? How many hours did [B.B.] sit up there being cross-examined about every syllable he uttered a year and a half ago? And he [defense counsel] couldn't crack him. That's because they told you the truth."
[*P124] Although we acknowledge that the prosecutor should not have commented on the truthfulness of the witnesses, it was proper in closing argument to point out that the State's witnesses, particularly the children, had been consistent about their stories despite intense and lengthy cross-examination. Such an argument is based more on the credibility of the witnesses than on the prosecutor's personal belief in the truthfulness of the testimony. For that reason, we are unpersuaded that Ross was unfairly prejudiced by this comment.
[*P125] Next, Ross argues that the prosecutor appealed to the jurors' emotions by asking them to imagine that their children were involved.
[*P126] In State v. Southall, Stark App. No. 2008CA00105, 2009 Ohio 768, the prosecutor in closing argument told the jury to "ask yourself if after hearing this evidence would you allow those children [`your own children, your own grandchildren'] to be alone with this defendant?" The State conceded this was improper, and the court agreed, citing State v. Robinson (June 23, 1992), Stark App. No. 5828, for the rule that "*** arguments by counsel suggesting to jurors that they place themselves in the position of a party to the cause *** are usually improper, and reversibly erroneous." Id. at P112. However, such a "golden rule" comment during closing argument is not per se prejudicial so as to warrant a new trial; rather, the test is whether it prejudicially affected substantial rights of the defendant. Id. at P115. (internal citations omitted.)
[*P127] In Ross's case, the prosecutor did not ask the jurors to imagine that their children were the victims of sexual abuse. Rather, she made an analogy to the CARE House interview and asked the jurors to consider how they would respond if, when they asked one of their own children how his day was, he said it was fine but broke down crying. The prosecutor should not have asked the jurors to imagine themselves in a situation similar to one described at trial. However, the prosecutor's comment seems to appeal more to the jurors' common sense than to their emotions. She was making the point that anyone in a similar situation with a child would follow up with additional questions, just as Detective Daugherty did, because something was clearly wrong. In this context, the prosecutor's comment that jurors should consider how they would respond in a similar situation did not encourage them to be unduly emotional in their decision. Additionally, there was no objection and the court's instructions told the jury that closing argument is not evidence.
* * *
[*P129] Ross asserts that the prosecutor made "a blatant emotional appeal" to the jurors by suggesting that a not guilty verdict would punish the alleged victims. The prosecutor stated that the jury did not have to "punish these kids [the victims]" because adults made errors in how they conducted interviews with the children or suggested to authorities that there might have been a type of abuse that the children's own testimony did not substantiate. This comment was directed to the credibility of the children's statements and the alleged inconsistencies upon which the defense had placed great emphasis. In our view, it was not an emotional appeal for the jurors to convict Ross for the benefit of the children.
[*P130] Ross further contends that the prosecutor improperly suggested in closing argument that the children disclosed the abuse because it was about to escalate, a claim about which no evidence had been presented. Dr. Miceli testified that purposeful (as opposed to accidental) disclosures of abuse by children can be affected by many factors, one of which can be that the abuse changes, for example, fondling evolves into more intrusive acts like penetration. In closing argument, the prosecutor stated: "Dr. Miceli told you that sometimes when kids disclose — what triggers a disclosure is when abuse changes or it escalates or maybe when it's about to escalate. So remember that when you remember what's been said in here." This comment did improperly suggest that the jury speculate as to whether the abuse might have escalated in the future. However, we are unpersuaded that this comment affected the jury's verdict or denied Ross a fair trial.
[*P131] Similarly, the prosecutor made the following comment in discussing reasonable doubt:
[*P132] "Reasonable doubt. In every trial it just seems defense attorneys leave this impression like it's just this impossible burden, that it's just impossible to meet. It does not mean beyond all doubt. It does not mean beyond a shadow of a doubt. There can be possible doubt and still convict. The question is would you rely on this evidence in making a very important decision? Reasonable doubt has to be based on reason and common sense, and reason and common sense all point to his [Ross's] guilt. And if there's a creepy feeling in your soul, I'd submit to you it's not from the kids. It's from someone else in here." (Emphasis added.)
[*P133] The defense did not object to this comment at trial, but we agree with Ross that it was inappropriate. The State `s comment that Ross was "creepy" was inflammatory and had no evidentiary value. In the context of the entire trial, however, it is unlikely that the improper comment in a lengthy closing argument prejudiced Ross to the point that it altered the outcome of his trial.
[*P134] Further, Ross asserts that the prosecutor commented on his right to remain silent and disparaged him for confronting his accusers. Ross states in his brief that "the disparaging remarks regarding the invocation of the right to remain silent are enough to necessitate a new trial." He does not identify the comments to which he objects, however, and Ross did testify at trial. With respect to disparaging his accusers, Ross points to a comment by the prosecutor that defense counsel had asked B.B. whether he said "no" to Ross, after which the prosecutor asked why B.B. would have needed to say no if nothing had happened, as Ross claimed. Viewed in the context of the whole trial, these alleged improper comments did not affect the fairness or the outcome of the trial.
[*P135] Finally, Ross asserts that the prosecutor unfairly appealed to the jurors' emotions by crying during closing argument. The trial court record, however, does not contain any indication that the prosecutor cried during closing argument. There was no objection on that basis, and neither the court reporter nor the judge noted such behavior. We further note that any crying, if it did occur, was so unobtrusive that defense counsel was apparently not aware of it during the trial. See, e.g., Coburn v. State (Ind. App. 2nd Dist, 1984), 461 N.E.2d 1154. Several months after trial, Ross filed affidavits in the trial court in an effort to substantiate this claim, but as such affidavits are not a part of the trial court record, we cannot rely on them. State v. Combs, Montgomery App. No. 22712, 2009 Ohio 1943, P19, citing State v. Madrigal, 87 Ohio St.3d 378, 390-392, 2000 Ohio 448, 721 N.E.2d 52. We reject Ross's claim that the prosecutor was crying during closing argument because there is no evidence to support that claim and no showing of prejudice.
[*P136] We are convinced that the prosecutor's actions, either individually or cumulatively, did not deprive Ross of a fair trial.
[*P137] The ninth assignment of error is overruled.State v. Ross, 2010 Ohio 843 (Ohio App. 2d Dist. Mar. 5, 2010).
When a state court decides a federal constitutional claim later raised in habeas corpus, the habeas court must defer to the state court decision unless it was contrary to or an objectively unreasonable application of clearly established Supreme Court precedent. 28 U.S.C. § 2254(d). The Court has elaborated on the standard of review for such decisions:
The Antiterrorism and Effective Death Penalty Act of 1996 modified a federal habeas court's role in reviewing state prisoner applications in order to prevent federal habeas "retrials" and to ensure that state-court convictions are given effect to the extent possible under law. See Williams v. Taylor, 529 U.S. 362, 403-404, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). To these ends, § 2254(d)(1) provides:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim — "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States."
As we stated in Williams, § 2254(d)(1)'s "contrary to" and "unreasonable application" clauses have independent meaning. 529 U.S., at 404-405, 120 S.Ct. 1495. A federal habeas court may issue the writ under the "contrary to" clause if the state court applies a rule different from the governing law set forth in our cases, or if it decides a case differently than we have done on a set of materially indistinguishable facts. Id., at 405-406, 120 S. Ct. 1495. The court may grant relief under the "unreasonable application" clause if the state court correctly identifies the governing legal principle from our decisions but unreasonably applies it to the facts of the particular case. Id., at 407-408, 120 S.Ct. 1495. The focus of the latter inquiry is on whether the state court's application of clearly established federal law is objectively unreasonable, and we stressed in Williams that an unreasonable application is different from an incorrect one. Id., at 409-410, 120 S.Ct. 1495. See also id., at 411, 120 S.Ct. 1495 (a federal habeas court may not issue a writ under the unreasonable application clause "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly").Bell v. Cone, 535 U.S. 685, 693-94 (2002).
AEDPA [the Antiterrorism and Effective Death Penalty Act of 1996] provides that, when a habeas petitioner's claim has been adjudicated on the merits in state-court proceedings, a federal court may not grant relief unless the state court's adjudication of the claim "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). A state-court decision is contrary to this Court's clearly established precedents if it applies a rule that contradicts the governing law set forth in our cases, or if it confronts a set of facts that is materially indistinguishable from a decision of this Court but reaches a different result. Williams v. Taylor, supra, at 405; Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 154 L.Ed.2d 263 (2002) (per curiam). A state-court decision involves an unreasonable application of this Court's clearly established precedents if the state court applies this Court's precedents to the facts in an objectively unreasonable manner. Williams v. Taylor, supra, at 405; Woodford v. Visciotti, 537 U.S. 19, 24-25, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) (per curiam).Brown v. Payton, 544 U.S. 133, 134 (2005). The question for this Court on the merits of those portions of Ground One preserved for habeas review is whether the Ohio Court of Appeals decision merits deference.
On habeas corpus review, the standard to be applied to claims of prosecutorial misconduct is whether the conduct "so infected the trial with unfairness as to make the resulting conviction a denial of due process," Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974); Darden v. Wainwright, 477 U.S. 168 (1986); Bates v. Bell, 402 F.3d 635, 640-41 (6th Cir. 2005); Kincade v. Sparkman, 175 F.3d 444 (6th Cir. 1999) or whether it was "so egregious as to render the entire trial fundamentally unfair." Cook v. Bordenkircher, 602 F.2d 117 (6th Cir. 1979); accord Summitt v. Bordenkircher, 608 F.2d 247 (6th Cir. 1979), aff'd sub nom, Watkins v. Sowders, 449 U.S. 341 (1981); Stumbo v. Seabold, 704 F.2d 910 (6th Cir. 1983). The court must first decide whether the complained-of conduct was in fact improper. Frazier v. Huffman, 343 F.3d 780 (6th Cir. 2003), citing United States v. Carter, 236 F.3d 777, 783 (6th Cir. 2001). A four-factor test is then applicable to any conduct the Court finds inappropriate: "(1) whether the conduct and remarks of the prosecutor tended to mislead the jury or prejudice the defendant; (2) whether the conduct or remarks were isolated or extensive; (3) whether the remarks were deliberately or accidentally made; and whether the evidence against the defendant was strong." Id. The court must decide whether the prosecutor's statement likely had a bearing on the outcome of the trial in light of the strength of the competent proof of guilt. Angel v. Overberg, 682 F.2d 605, 608 (6th Cir. 1982). The court must examine the fairness of the trial, not the culpability of the prosecutor. Serra v. Michigan Department of Corrections, 4 F.3d 1348, 1355 (6th Cir. 1993) ( quoting Smith v. Phillips, 455 U.S. 209, 219 (1982). In Serra, the Sixth Circuit identified factors to be weighed in considering prosecutorial misconduct:
In every case, we consider the degree to which the remarks complained of have a tendency to mislead the jury and to prejudice the accused; whether they are isolated or extensive; whether they were deliberately or accidentally placed before the jury, and the strength of the competent proof to establish the guilt of the accused.Id., at 1355-56 ( quoting Angel, 682 F.2d at 608). The misconduct must be so gross as probably to prejudice the defendant. Prichett v. Pitcher, 117 F.3d 959, 964 (6th Cir. 1997), cert. denied, 118 S. Ct. 572 (1997); United States v. Ashworth, 836 F.2d 260, 267 (6th Cir. 1988). Claims of prosecutorial misconduct are reviewed deferentially on habeas review. Thompkins v. Berghuis, 547 F.3d 572 (6th Cir. 2008), citing Millender v. Adams, 376 F.3d 520, 528 (6th Cir. 2004).
In his Brief in support of the Petition, Mr. Ross does not argue as to how the Court of Appeals decision is objectively unreasonable. Instead, he largely argues from the Sixth Circuit's decision in terms of Hodge v. Hurley, 426 F.3d 368 (6th Cir. 2005). In that case, the habeas petitioner alleged he had received ineffective assistance of trial counsel because of counsel's failure to object to various instances of prosecutorial misconduct. Judge Moore's majority opinion refers repeatedly to the slim evidence in the case: the mother of the victim claimed she had seen penetration, the defendant denied that it had happened, and the case really turned on which of the two the jury believed. Given that context, Judge Moore reviewed the state court's rulings on each alleged instance of prosecutorial misconduct and concluded:
In regard to the prosecutor's improper comments on witness credibility, we are unable to draw a relevant distinction between the comments on witness veracity prohibited by Young [United States v., 470 U.S. 1 (1985)] and Berger [v. United States, 295 U.S. 78 (1935)] and the comments at issue in this case. As to the prosecutor's misleading statements, we note that both the false statement as to the content of Dr. Omley's testimony and the false statement that disbelieving Fenn would require disbelieving her great-grandmother and great-aunt went to the key issue in the case — whether to believe Fenn or Hodge. With respect to the prosecutor's derogatory comments and bad-character arguments, we note that they were each completely unsupported by the evidence in the case or totally irrelevant to the issues involved.Hodge v. Hurley, 426 F.3d 368, 388 (6th Cir. 2005).
The prosecutorial misconduct which occurred in Hodge was plainly more pervasive and explicit than what occurred here. In particular, the prosecutor there explicitly accused the defendant of lying, said the complaining witness was "absolutely believable," accused an expert of lying and testifying wrongfully and unethically, misrepresented the testimony of the examining physician, and made disparaging remarks about the defendant's character with no basis in evidence of record. Id. at 386. Here the comments on witness credibility, although found to be improper by the Court of Appeals, consisted merely in noting that the child witnesses' stories had remained consistent despite intense cross-examination. There were no bad character comments about Petitioner except for the improper but oblique comment that someone in the courtroom was "creepy." Petitioner's assertion that the prosecutor violated the prohibition against "Golden Rule" arguments by asking the jury to put itself in the place of the victims' parents as explained by the Court of Appeals as a completely proper appeal to jurors' common sense about how to interpret a report from a child, as opposed to asking them to emotionally identify with parents of abused children. This Court finds that to be a reasonable interpretation of what the prosecutor was arguing and certainly not misconduct as identified in Supreme Court precedent. Finally, the Court of Appeals resolution of the claim that the prosecutor accused defense counsel of "coaching" was not objectively unreasonable given the context: defense counsel had repeatedly accused the prosecutor of coaching the victim witnesses.
This Court concludes that the Ohio Court of Appeals resolution of the claims of prosecutorial misconduct which are preserved for consideration on the merits was not an objectively unreasonable application of clearly established Supreme Court law. Ground One is denied.
Ground Three: Failure to Produce Grand Jury Testimony of Victims
In his third Ground for Relief, Petitioner claims that the trial court's failure to order production of the victims' grand jury testimony resulted in his unlawful conviction. This claim was raised as Assignment of Error No. 2 on direct appeal (Appellant's Brief, Ex. 9-29 to Return of Writ, PageID 874). He argued this assignment as a matter of state law, particularly whether the trial court had correctly interpreted Ohio R. Crim. P. 6(E) which provides for disclosure of grand jury testimony upon a showing of "particularized need." Id. at PageID 907-910. On direct appeal, Petitioner did not make an express claim of violation of federal constitutional law; the sole federal citation was to Dennis v. United States, 384 U.S. 855 (1966).
The Court of Appeals ruling on this assignment of error is as follows:
[*P38] Ross claims that the trial court erred when it refused to provide him with the victims' grand jury testimony.
[*P39] "Grand jury proceedings are secret, and an accused is not entitled to inspect grand jury transcripts either before or during trial unless the ends of justice require it and there is a showing by the defense that a particularized need for disclosure exists which outweighs the need for secrecy." State v. Greer (1981), 66 Ohio St.2d 139, 420 N.E.2d 982, at paragraph two of the syllabus; see Crim.R. 6(E). A "particularized need" exists "when the circumstances reveal a probability that the failure to provide the grand jury testimony will deny the defendant a fair trial ***." State v. Sellards (1985), 17 Ohio St.3d 169, 173, 17 Ohio B. 410, 478 N.E.2d 781. The disclosure of grand jury testimony is governed by Crim.R. 6(E), and the decision whether to release grand jury testimony is within the trial court's discretion. Greer, supra, at paragraph one of the syllabus.
[*P40] A trial court does not abuse its discretion by finding no particularized need when a defendant speculates that grand jury testimony might have revealed contradictions. State v. Carr, Montgomery App. No. 22603, 2009 Ohio 1942, at P41, quoting State v. Mack, 73 Ohio St.3d 502, 508, 1995 Ohio 273, 653 N.E.2d 329. "If the use of grand jury testimony were permitted simply because a defendant claims that the prior statements of a witness could be used for impeachment purposes, virtually all grand jury testimony would be subject to disclosure." Id., quoting State v. Cherry (1995), 107 Ohio App.3d 476, 479, 669 N.E.2d 45.
[*P41] Ross claims that he showed a particularized need for the grand jury testimony "based on the inconsistencies in the testimony of his accusers with prior accusations." He contends that the grand jury testimony of Ross's accusers "must have contradicted" the accounts in the CARE House records or presented at trial because "the bill of particulars that resulted from the grand jury indictment contained accusations of possible anal rape." With respect to the counts of rape, the bill of particulars stated that Ross had engaged in sexual conduct that "include[d], but [was] not limited to, oral sex being performed on the victim, the victim performing oral sex on the defendant and/or anal sex performed on the victim." As discussed under the first and third assignments of error, the parties and the court spent a great deal of time and effort at trial discussing Ross's inferences — from the bill of particulars and other documents — that the victims had made prior inconsistent statements about anal contact with Ross. The evidence from which these inferences were drawn involved statements made by third parties. Nonetheless, Ross was permitted to question D.D. about the alleged inconsistent statements regarding anal contact. There was scant evidence that B.B. had made such an allegation in the past, although his mother had been concerned about anal rape and had questioned whether B.B. was fully disclosing what had happened. CARE House records, along with the statements of B.B.'s mother and the testimony of the caseworker, demonstrated that B.B.'s mother had voiced this concern. But there was no evidence that B.B. had affirmatively reported such contact to anyone.
[*P42] The indictments and bill of particulars included anal sex as a possible form of sexual conduct that would be established at trial, but the evidence at trial did not establish this offense, and the trial court limited the jury's consideration to oral rape. The trial court could have reasonably concluded that the possibility that anal rape had been mentioned in the grand jury testimony was slim, that Ross did not demonstrate a particularized need for disclosure of grand jury testimony that outweighed the need for secrecy, and that the refusal to provide grand jury testimony would not deprive Ross of a fair trial. Because "`a bald assertion on appeal that [the defendant] needed to examine the testimony of an adverse witness for inconsistencies fails to set forth a particularized need,'" Carr at P41, quoting Mack, 73 Ohio St.3d at 508, the trial court did not abuse its discretion in refusing to allow Ross to review the grand jury testimony.
[*P43] The second assignment of error is overruled.State v. Ross, 2010 Ohio 843 (Ohio App. 2d Dist. Mar. 5, 2010). Thus the Court of Appeals also understood itself as presented with a question of Ohio, not federal constitutional law.
In his Brief in this Court, Petitioner also cites Dennis and United States v. Hayes, 376 F. Supp. 2d 736 (E.D. Mich. 2005). The Hayes case is merely an instance of application of Fed.R.Crim.P. 6(e); no constitutional analysis was involved and it is therefore not persuasive on the issue before this Court. Likewise in Dennis the Supreme Court merely discusses the proper interpretation of Fed.R.Crim.P. 6(e) and does not engage in any constitutional analysis.
Assuming, then, that Petitioner submitted some federal constitutional claim to the Ohio Court of Appeals in his Assignment of Error No. 2, this Court concludes he has not shown that that court's disposition of the claim was in any way contrary to or an unreasonable application of clearly established Supreme Court constitutional precedent. Ground Three must also be denied.
Conclusion
In accordance with the foregoing analysis, it is hereby ORDERED that the Clerk enter judgment dismissing the habeas corpus petition herein with prejudice.
April 6, 2011.