Citations
- 231 F. Supp. 2d 650
Full opinion text
MEMORANDUM OF OPINION AND ORDER CONDITIONALLY GRANTING PETITION FOR WRIT OF HABEAS CORPUS
WELLS, District Judge.
In September 1996, after a trial, a jury found Paul Smith (“Smith”) guilty of felonious assault with specifications. After Mr. Smith’s unsuccessful appeals of his conviction to the Ohio Court of Appeals and the Ohio Supreme Court, the United States Supreme Court remanded the case to the Ohio Court of Appeals, which, upon reconsideration, again denied Smith’s appeal. The Ohio Supreme Court dismissed Mr. Smith’s appeal of that denial. Mr. Smith’s petition for state post-conviction relief also was denied by the state court of appeals and state supreme court. An additional direct appeal before the state courts was unavailing.
On 5 December 2001, Petitioner Paul Smith filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, asserting five grounds for relief. Respondent Julius Wilson filed a return of writ. On 6 June 2002, United States Magistrate Judge Patricia A. Hemann issued a Report and Recommendation (“R & R”), recommending that the petition be granted. Respondent objected to the R & R. Petitioner filed limited objections to the R & R.
A federal court’s review of a habeas corpus petition is very different from a state court’s review of a direct appeal. The Antiterrorism and Effective Death Penalty Act of 1996 limits a federal district court’s ability to grant a writ of habeas corpus where a state court considered the federal claim on the merits. When a federal court examines a state court’s legal decision, the question is not whether the state court’s decision was incorrect, but whether the decision 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). When a federal court examines a state court’s factual determination, the question is whether it was an unreasonable determination of the facts in light of the evidence presented in the State court proceeding. Id. It is not enough that a federal court disagrees with a state court decision; to grant a petition for a writ of habeas corpus, the federal court must find that the state court’s decision was unreasonable. In order to assess the rationality of a state court decision, a federal district court must examine the entire state record for itself.
In this case, because this Court finds that Mr. Smith’s first ground for relief has merit, the focus of the Court’s analysis is on the admission of a written statement at Mr. Smith’s trial. For the reasons discussed below, upon full review of the record, the Magistrate Judge’s recommendations are adopted, and Mr. Smith’s petition for a writ of habeas corpus will be conditionally granted.
I. FACTUAL BACKGROUND
The September 1996 term of the Cuya-hoga County grand jury indicted Mr. Smith on one ■ count of felonious assault with two firearm specifications and two repeat violent offender specifications. (Docket # 14 at Exhibit 1).
A. The State Appellate Court’s Description of the Facts
The Ohio Court of Appeals for the Eighth District described the facts of the case as follows:
[O]n August 1, 1996, Iris Wilson and Paul Smith, a Jamaican, drove around in an effort to collect a drug debt from “Bootsie,” a.k.a. Mock Rogers; later that evening, Smith saw Rogers, Kenyatta Wells, and Shantell Jones leave the Calypso Bar, located at Lakeshore and St. Clair Avenue, in Cleveland. As they drive [sic] off in Wells’ pickup truck, Smith told Wilson to follow them, and when Wells reached the intersection of Lakeview Avenue and Dupont, Wilson yelled to Bootsie. Wells drove on, but when he reached the next light, Wilson again yelled, “Bootsie, somebody wants to see you,” and at that point, Smith exited the car, walked over to the passenger side of Wells’ truck, shot out the window, put his hand into, the vehicle, and shot Wells in the right calf. Rogers, believing he had been shot, told Wells, “I am hit! I am hit! It was Iris and Paul.”
Wells then drove to a nearby Finast grocery store, where a security guard called police and an ambulance to transport Wells to the hospital. Officer Kennedy Jones of the Sixth District Police Department arrived at the Finast store, observed bullet holes in the vehicle, spoke with Rogers and Shantell Jones, who appeared visibly shaken, and through that conversation, learned the identities of Smith and Wilson.
Following an investigation, police arrested Wilson and Smith ... While in custody and after she had an opportunity to speak with her defense attorney who advised her not to make a written statement, Wilson signed a waiver of her rights and gave a written statement to the police which detailed that she drove Smith from Calypso’s where he first spotted Rogers to East 110th and Lake-’view. She farther related that Smith then exited the car and started shooting into Wells’ truck. Smith got back into the vehicle and told Wilson to drive ... At trial and after the jury had been seated but prior to opening statements of counsel, the court ruled that Wilson’s statement would not be admitted and, in response, the state dismissed its case against her and proceeded with its case against Smith. During its case-in-chief, the state called three witnesses, including Wells, who recounted the events of August 1, 1995, identified Smith as the gunman, and testified that Rogers had told him that Smith did the shooting just after it occurred. The state next called Wilson, who invoked her Fifth Amendment right against self-incrimination and refused to testify even after the state granted her transactional immunity because she feared federal prosecution for harboring Smith, an illegal alien. The state then offered, and the court admitted, the written statement Wilson had given to the police in which she stated Smith shot Wells.
State v. Paul A. Smith, (Ohio App. 8 Dist. Dec. 9, 1999), Docket # 14, Exhibit 15 at 2-4.
B. Testimony Not Discussed by the State Appellate Court
After de novo review of the entire record, it is clear to this Court that trial testimony not mentioned by the Ohio Court of Appeals is relevant to this petition and must be examined in detail. This Court cannot fulfill its habeas corpus role of determining whether the Ohio Court of Appeals’ decision was reasonable without reference to testimony that was not discussed by the state appellate court in its opinion.
Kenyatta Wells was the state’s first witness at trial. He testified as follows:
Q. Did anyone pull along side the vehicle as you were driving it?
A. Yes, it did.
Q. Could you tell us where you were the first time that vehicle pulled up next to you?
A. We were coming to a stop at the light right there at Lakeview and Dupont.
Q. What happened, if anything, when you stopped at that light?
A. A car rolled on the side of us.
Q. On which side?
A. On the passenger’s.
Q. Okay.
A. Go ahead.
A. The person who was driving called Mr. Rogers’ name, so I pulled away from the car.
Q. Who called Mr. Rogers [sic] name?
A. Iris.
Q. And how did she go about doing that?
A. She pulled on the side of the passenger’s side and had the window down and was like “Bootsie”.
Q. Why did you pull away?
A. Because I didn’t know her and he didn’t know who she was right off the bat.
Q. Did there come a time when that same vehicle pulled up on you again?
A. Yes, it did.
Q. Where did that happen?
A. Pulled away and I pulled up to the light a little bit more. She called his name again.
Q. What intersection were you at?
A. We were at the light of Dupont.
Q. And did she again roll the window down?
A. Yes, she did.
Q. Did Mr. Rogers roll his window down?
A. Yes, he did. He started to.
Q. At that point in time did you recognize the driver of the other vehicle that pulled up to you?
A. No, I didn’t.
Q. What did she say at that time?
A. She said “Bootsie” somebody wants to see you.
Q. Then what happened?
A. That’s when Paul Smith exited the ear, came around and repeated “mother fucker” and shot the window out and put his hand into the car and started shooting.
Q. Where did he come from?
"A. Out of the passenger’s side of the car ...
Q. Do you see anyone else get out of the car?
A. No, I didn’t.
Q. And he came right up to the passenger’s side, is that correct?
A. Yes, he did.
Q. After he fired once and broke the window he continued firing?
A. Yes, he did.
Q. And was he as close to you as he was right next to the passenger door and you were in the driver’s seat, is that correct?
A. Yes.
Q. Did you recognize him at that point in time?
A. No, I didn’t.
Q. When did you realize who it was that shot you?
A. After I pulled away from the light, Mr. Rogers said—
MR. WILLIS: Objection.
THE COURT: Sustained.
A. After I pulled away from the light Mr. Rogers said.
MR. WILLIS: Objection. Judge may we approach.
THE COURT: Yes.
(Discussion had between Court and counsel at the bench out of hearing of the jury.)
THE COURT: Your objection is noted. Overruled. Proceed.
Q. Immediately after those shots were fired you began to pull away?
A. Yes.
Q. What did “Bootsie” say at that point in time?
MR. WILLIS: Objection.
THE COURT: Overruled.
A. He said I am hit, I am hit. And the young lady that was in the car was, no, you are not, no you are not. And that time was when Mr. Rogers was he was underneath—
MR. WILLIS: Objection.
A. —of the car or the truck was pushing my leg telling me to drive, drive.
Q. You said something before about who the person was who shot you?
A. Yes. Mr. Rogers said that was Iris and Paul.
MR. WILLIS: Objection.
Q. Pardon me.
A. He said that was Iris and Paul.
THE COURT: Overruled.
Q. At that point in time did you recognize Iris and Paul?
A. No, I didn’t.
(Docket # 25, Tr. at 310-14).
Wells further testified regarding his knowledge of Smith and identified him in court:
Q. What was the name you gave Detective Wheeler as being the person who shot you?
MR. WILLIS: Objection?
A. Paul Smith.
THE COURT: Overruled.
Q. How do you know Paul Smith?
A. Through Mr. Rogers selling houses.
Q. And how long had you known Paul Smith?
A. Two years.
Q. And what I don’t understand — what was the relationship between Mr. Rogers and Paul Smith, if you know?
A. Just going, buying houses and selling, showing houses.
Q. What did you have to do with that?
A. Just being there, going with them.
Q. Did you have conversation with Paul Smith at any time?
A. No, I didn’t.
Q. Were you present went [sic] Paul Smith had conversation with Mr. Rogers?
A. No, I wasn’t.
Q. You saw them together, didn’t you?
A. Yes.
Q. Weren’t they talking to each other?
A. They were more or less like privately, like walking to the side and talk.
Q. Did you know who he was?
A. Yes.
Q. Do you see him in the courtroom today?
A. Yes I do.
Q. Will you pointed [sic] him out and tell us where he is seated and what he is wearing?
A. I can’t see what he is wearing but he is right there.
Q. What color shirt is he wearing?
THE COURT: You can stand up if you want.
A. White shirt is [sic] and black vest.
Q. Go ahead.
A. White shirt and black vest.
MR. HORN: May the record reflect the witness has identified the defendant?
THE COURT: The record may so reflect.
(Docket # 25, Tr. at 318-320).
Mr. Wells identified Mr. Smith as the shooter a second time:
Q. The man that shot you in the evening ever [sic] August 1, 1996, do you see him in the courtroom?
MR. WILLIS: Objection.
A. Yes, I do.
Q. Who is that?
A. Paul Smith.
(Docket # 25, Tr. at 326-327).
On cross-examination, Mr. Wells responded “Yes” when asked if it was Rogers that told him it was Iris and Paul. (Tr. at 330). On re-redirect, the issue of the shooter’s accent was discussed:
Q. When the defendant walked up to the vehicle in which you were driving and stated, what’s up mother fucker, did you recognize anything about his voice?
A. Yes.
What was that? &
The Jamaican ...