Lark v. Warden Southeastern Correctional Institution

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION AT COLUMBUS

VERCIE L. LARK,

Petitioner, : Case No. 2:19-cv-4160

- vs - District Judge Edmund A. Sargus, Jr.

Magistrate Judge Michael R. Merz

BRIAN COOK, Warden,

Southeastern Correctional Institution,

:

Respondent.

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Vercie Lark under 28 U.S.C. § 2254,

is before the Court for decision on the merits on the Petition (ECF No. 1), the State Court Record

(ECF No. 3), and the Return of Writ (ECF No. 3).

Upon ordering an answer in the case, Magistrate Judge Vascura set a deadline for Petitioner

to file a reply or traverse of twenty-one days after the Return of Writ. Because the Return was

filed and served by mail on December 5, 2019, the time for Petitioner to file a reply expired on

December 30, 2019 (See Fed.R.Civ.P. 6). However no reply has been filed.

The Magistrate Judge reference in this case has been transferred to the undersigned to help

balance the Magistrate Judge workload in the District.

Litigation History

On April 21, 2017, a Fayette County grand jury indicted Lark on nine counts for various

violations of the controlled substances laws. The case was tried to a jury on February 15, 2018.

At the conclusion of the State’s evidence, the trial judge dismissed Counts One, Five, and Seven.

The jury found Lark not guilty as to Counts Two, Three and Four, but guilty as charged on Counts

Six, Eight, and Nine. The trial judge then sentenced him to an aggregate term of imprisonment of

fifty-one months. Lark appealed to the Twelfth District Court of Appeals which affirmed the

conviction. State v. Lark, 2018-Ohio-4940 (Ohio App. 12th Dist. Dec, 10, 2018), appellate

jurisdiction declined, 156 Ohio St. 3d 1453 (2019).

On March 8, 2019, Lark filed an application to reopen the direct appeal to litigate a claim

of ineffective assistance of appellate counsel (State Court Record, ECF No. 3, Ex. 13). The

Twelfth District denied the application. Id. at Ex. 14, appellate jurisdiction declined, 2019-Ohio-

4003 (2019).

Lark then filed the instant habeas corpus petition, pleading three grounds for relief:

Ground One: Insufficiency of the evidence.

Supporting Facts: Petitioner states that the pre-arrest and trial delay

violated his rights to due process, violating “fundamental

conception of justice,” which define the community’s sense of fair

play and decency.

Ground Two: Trial court denied admission of exonerating and

exculpatory evidence violating due process rights of Petitioner.

Supporting Facts: The trial court erred when it excluded evidence

of the written statement of James Tanner made on August 29, 2016.

The court applied the hearsay rule mechanically to defeat the ends

of justice.

Ground Three: Appellate counsel failed to submit an assignment

of error that trial counsel erred and was deficient for failing to raise

the issue of prejudicial delay.

Supporting Facts: The state violated due process and caused actual

prejudice which was unjustifiable; the pre-indictment delay. The

evidence from the record is sufficient to show pre-indictment delay

as the State of Ohio made the declarant unavailable to the Defendant

and his counsel.

(Petition, ECF No. 1, PageID# 5-8).

Analysis

Ground One: Conviction Based on Insufficient Evidence

In his First Ground for Relief, Lark claims he was convicted on insufficient evidence1.

Respondent concedes this claim is preserved for merits review in habeas corpus.

An allegation that a verdict was entered upon insufficient evidence states a claim under the

Due Process Clause of the Fourteenth Amendment to the United States Constitution. Jackson v.

Virginia, 443 U.S. 307 (1979); In re Winship, 397 U.S. 358 (1970); Johnson v. Coyle, 200 F.3d

987, 991 (6th Cir. 2000); Bagby v. Sowders, 894 F.2d 792, 794 (6th Cir. 1990)(en banc). In order

for a conviction to be constitutionally sound, every element of the crime must be proved beyond a

reasonable doubt. In re Winship, 397 U.S. at 364.

[T]he relevant question is whether, after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact

could have found the essential elements of the crime beyond a

reasonable doubt . . . . This familiar standard gives full play to the

1 The “supporting facts” portion of this claim as pleaded in the Petition appears to be in support of the Third Ground

for Relief rather than the First.

responsibility of the trier of fact fairly to resolve conflicts in the

testimony, to weigh the evidence and to draw reasonable inferences

from basic facts to ultimate facts.

Jackson v. Virginia, 443 U.S. at 319; United States v. Paige, 470 F.3d 603, 608 (6th Cir. 2006);

United States v. Somerset, 2007 U.S. Dist. LEXIS 76699 (S.D. Ohio 2007). This rule was

recognized in Ohio law at State v. Jenks, 61 Ohio St. 3d 259 (1991). Of course, it is state law

which determines the elements of offenses; but once the state has adopted the elements, it must

then prove each of them beyond a reasonable doubt. In re Winship, supra. A sufficiency challenge

should be assessed against the elements of the crime, not against the elements set forth in an

erroneous jury instruction. Musacchio v. United States, 577 U.S. ___, 136 S. Ct. 709, 193 L. Ed.

2d 639 (2016).

In cases such as Petitioner’s challenging the sufficiency of the evidence and filed after

enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (Pub. L. No 104-132, 110

Stat. 1214)(the “AEDPA”), two levels of deference to state decisions are required:

In an appeal from a denial of habeas relief, in which a petitioner

challenges the constitutional sufficiency of the evidence used to

convict him, we are thus bound by two layers of deference to groups

who might view facts differently than we would. First, as in all

sufficiency-of-the-evidence challenges, we must determine

whether, viewing the trial testimony and exhibits in the light most

favorable to the prosecution, any rational trier of fact could have

found the essential elements of the crime beyond a reasonable doubt.

See Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L.

Ed. 2d 560 (1979). In doing so, we do not reweigh the evidence, re-

evaluate the credibility of witnesses, or substitute our judgment for

that of the jury. See United States v. Hilliard, 11 F.3d 618, 620 (6th

Cir. 1993). Thus, even though we might have not voted to convict a

defendant had we participated in jury deliberations, we must uphold

the jury verdict if any rational trier of fact could have found the

defendant guilty after resolving all disputes in favor of the

prosecution. Second, even were we to conclude that a rational trier

of fact could not have found a petitioner guilty beyond a reasonable

doubt, on habeas review, we must still defer to the state appellate

court's sufficiency determination as long as it is not unreasonable.

See 28 U.S.C. § 2254(d)(2).

Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009). In a sufficiency of the evidence habeas corpus

case, deference should be given to the trier-of-fact's verdict under Jackson v. Virginia and then to

the appellate court's consideration of that verdict, as commanded by AEDPA. Tucker v. Palmer,

541 F.3d 652 (6th Cir. 2008); accord Davis v. Lafler, 658 F.3d 525, 531 (6th Cir. 2011)(en banc);

Parker v. Matthews, 567 U.S. 37, 43 (2012). Notably, “a court may sustain a conviction based

upon nothing more than circumstantial evidence.” Stewart v. Wolfenbarger, 595 F.3d 647, 656

(6th Cir. 2010).

We have made clear that Jackson claims face a high bar in federal

habeas proceedings because they are subject to two layers of judicial

deference. First, on direct appeal, "it is the responsibility of the jury

-- not the court -- to decide what conclusions should be drawn from

evidence admitted at trial. A reviewing court may set aside the jury's

verdict on the ground of insufficient evidence only if no rational trier

of fact could have agreed with the jury." Cavazos v. Smith, 565 U.

S. 1, ___, 132 S. Ct. 2, 181 L. Ed. 2d 311, 313 (2011) (per curiam).

And second, on habeas review, "a federal court may not overturn a

state court decision rejecting a sufficiency of the evidence challenge

simply because the federal court disagrees with the state court. The

federal court instead may do so only if the state court decision was

'objectively unreasonable.'" Ibid. (quoting Renico v. Lett, 559 U. S.

___, ___, 130 S. Ct. 1855, 176 L. Ed. 2d 678 (2010)).

Coleman v. Johnson, 566 U.S. 650, 651, (2012)(per curiam); Parker v. Matthews, 567 U.S. 37, 43

(2012) (per curiam). The federal courts do not make credibility determinations in reviewing

sufficiency of the evidence claims. Brooks v. Tennessee, 626 F.3d 878, 887 (6th Cir. 2010).

When a state court decides on the merits a federal constitutional claim later presented to a

federal habeas court, the federal court must defer to the state court decision unless that decision is

contrary to or an objectively unreasonable application of clearly established precedent of the

United States Supreme Court. 28 U.S.C. § 2254(d)(1); Harrington v. Richter, 562 U.S. 86, 131 S.

Ct. 770, 785 (2011); Brown v. Payton, 544 U.S. 133, 140 (2005); Bell v. Cone, 535 U.S. 685, 693-

94 (2002); Williams (Terry) v. Taylor, 529 U.S. 362, 379 (2000). Deference is also due under 28

U.S.C. § 2254(d)(2) unless the state court decision was based on an unreasonable determination

of the facts in light of the evidence presented in the State court proceedings.

In this case, the Twelfth District considered Lark’s claim that his conviction was not

supported by sufficient evidence in conjunction with his state-law claim that it was against the

manifest weight of the evidence. The appellate court concluded:

[*P2] On August 18, 2016, appellant was booked into the Fayette

County Jail and was placed in cell number 338, which was

commonly known as the "12-man cell." Shortly after appellant's

placement in this cell, officers at the jail received a tip from another

inmate, C.C., that appellant and inmate James Tanner had illegal

narcotics in the 12-man cell. Fayette County Sheriff's Deputies

employed at the jail conducted a search of the cell on August 27,

2016. The deputies recovered a baggie containing three smaller

baggies near appellant's bunk, located by the shower area. One of

the smaller baggies contained a brown substance, another baggie

contained a crystalline substance, and the third baggie contained an

off-white substance. Testing of these substances by the Ohio Bureau

of Criminal Investigation ("BCI") indicated that the brown

substance was fentanyl, the crystalline substance was

methamphetamine, and the off-white substance was cocaine.

[*P4] At trial, the state presented testimony from C.C., four

officers who were involved in the August 27, 2016 search of the 12-

man cell, and the BCI analysist who tested the substances recovered

during the search. C.C. testified he entered the Fayette County Jail

in July 2016, and was placed in the 12-man cell. [footnote omitted]

C.C. stated that prior to appellant being placed in the 12-man cell,

there had not been any drug use in the cell. However, after

appellant's arrival in the cell, heroin, methamphetamine, and cocaine

were being passed around and used by the inmates. C.C. observed a

change in behavior by inmate Tanner after appellant's arrival in the

cell; Tanner became more outgoing and appeared happy after

interacting with appellant. C.C. observed that Tanner had his own

bag of methamphetamine "for a small period of time."

[*P5] Deputy Kyle Lower testified that he was one of the officers

who searched the 12-man cell on August 27, 2016. Lower explained

he was assigned to isolate and detain appellant before appellant's

bed and the nearby area could be searched. Upon entering the 12-

man cell, Lower observed appellant lying in his bed, which was

located on the bottom bunk of the bed closest to the cell's shower

area. When appellant saw Lower approach, appellant turned away

from Lower and tried to get out of his bed on the side furthest away

from Lower. Lower grabbed appellant and told him to exit the bunk

on the side the deputy was standing on. As appellant did so, Lower

saw appellant make a tossing motion with his hand. Lower

handcuffed appellant and had him taken out of the cell by another

officer. Lower then searched the area by appellant's bunk and found

a baggie containing a white substance on the floor. Lower turned the

baggie over to Sergeant Charles Kyle.

[*P6] Deputy Jason Havens testified that he is a K-9 handler. On

August 27, 2016, Havens walked his narcotics certified K-9 through

the 12-man cell. The K-9 alerted on the corner of the bottom bunk

located closest to the shower area. This bunk was identified as

appellant's bunk.

[*P7] Deputy Christopher Self testified he was also involved in the

search of the 12-man cell. Self secured Tanner so that the cell could

be searched. Self, along with Sergeant Kyle, escorted Tanner and

appellant out of the 12-man cell and secured the two inmates in

another area of the jail. Self then returned to the 12-man cell to assist

in the search. Upon returning to the cell, Self observed a white

baggie located under appellant's bunk. Self testified another officer,

Deputy Wright, picked up the baggie and gave it to Sergeant Kyle.

[*P8] Sergeant Kyle testified that after being advised by an inmate

that appellant and Tanner were in possession of narcotics inside the

12-man cell, he oversaw the August 27, 2016 search of the cell. Kyle

denied that Deputy Lower had handed him a baggie of evidence

located during the search. Rather, Kyle testified, it was Deputy

Wright that turned over a baggie of narcotics that had been found in

the cell near appellant's bed. The baggie was "cloudy," and it held

three smaller baggies inside of it.

[*P9] Kyle explained that at the time of the search, there were a

number of inmates housed in the 12-man cell. Appellant, who was

nicknamed "Bubby," had been placed in the 12-man cell on August

18, 2016. Tanner, who was nicknamed "J-Money," had been placed

in the cell shortly after being booked into the jail on August 3, 2016.

Two other inmates, S.W. and G.B., had also been placed in the 12-

man cell after being booked into the jail on August 3, 2016 and June

29, 2016, respectively. Kyle testified that Tanner's bed inside the 12-

man cell was on a top bunk near the front of the cell, well-away from

the shower area where appellant's bunk was located.

[*P10] Kyle testified that a portion of the search of the 12-man cell

was recorded. A six-minute recording of the search was admitted

into evidence. The video ended before Deputy Havens arrived with

his K-9 to search the cell and it does not depict Deputy Wright

finding a bag of narcotics under appellant's bed, as Deputy Self

described. The video did, however, record the beginning of the

search, when appellant was on his bed as Deputy Lower approached

to restrain him. The video shows Deputy Lower shaking out

appellant's bed linens, finding a small baggie on the floor near

appellant's bunk, and picking up the baggie after appellant was

escorted from the cell.

[*P11] Michele Taylor, a forensic scientist at BCI, testified that the

substances recovered from the August 27, 2016 search were tested

at BCI. The baggie holding the brown substance contained 3.45

grams of fentanyl, the baggie holding the crystalline substance

contained 5.42 grams of methamphetamine, and the baggie holding

the off-white substance contained 0.33 gram of cocaine.

[*P12] Following the state's case-in-chief, appellant moved for

acquittal pursuant to Crim.R. 29. The trial court granted appellant's

motion in part, finding the state failed to present sufficient evidence

to sustain a conviction for aggravated trafficking in fentanyl,

aggravated trafficking in methamphetamine, and trafficking in

cocaine. The court denied appellant's motion for acquittal on the

remaining charges.

[*P13] Appellant then presented testimony by two inmates, G.B.

and S.W., who had been housed in the 12-man cell in August 2016.

G.B. testified that in August 2016, he saw "J-Money" with drugs and

"J-Money" gave him methamphetamine. G.B. did not see appellant

with any drugs. G.B. believed that at the time of the August 27, 2016

search, he had been using methamphetamine in the jail for

approximately 10 days. S.W. likewise testified that the drugs found

in the 12-man cell were "J-Money's" drugs as "J-Money" had

methamphetamine in the cell.

[*P26] Appellant was found guilty of aggravated possession of

methamphetamine, aggravated possession of fentanyl, and

possession of cocaine, all in violation of R.C. 2925.11(A). Pursuant

to R.C. 2925.11(A), "[n]o person shall knowingly obtain, possess,

or use a controlled substance or a controlled substance analog." With

respect to appellant's possession of methamphetamine, where the

"amount of the drug involved equals or exceeds the bulk amount but

is less than five times the bulk amount, aggravated possession of

drugs is felony of the third degree, and there is a presumption for a

prison term for the offense." R.C. 2925.11(C)(1)(b).

[*P27] Possession is defined as "having control over a thing or

substance, but may not be inferred solely from mere access to the

thing or substance through ownership or occupation of the premises

upon which the thing or substance is found." R.C. 2925.01(K).

Possession may be actual or constructive. State v. Fultz, 12th Dist.

Butler No. CA2015-06-103, 2016-Ohio-1486, ¶ 12. Constructive

possession exits when one is conscious of the presence of the object

and able to exercise dominion and control over it, even if it is not

within one's immediate physical possession. State v. Graves, 12th

Dist. Clermont No. CA2015-03-022, 2015-Ohio-3936, ¶ 22.

"Constructive possession may be proven by circumstantial evidence

alone." Fultz at ¶ 12. Absent a defendant's admission, the

surrounding facts and circumstances, including a defendant's

actions, are evidence that a trier of fact may consider in determining

whether the defendant had constructive possession. Graves at ¶ 22.

"The discovery of readily accessible drugs in close proximity to the

accused constitutes circumstantial evidence that the accused was in

constructive possession of the drugs." 2012-Ohio-3205, at ¶ 13.

[*P28] "A person acts knowingly, regardless of purpose, when the

person is aware that the person's conduct will probably cause a

certain result or will probably be of a certain nature." R.C.

2901.22(B). Further, "[a] person has knowledge of circumstances

when the person is aware that such circumstances probably exist."

Id.

[*P29] Appellant argues that the state presented "conflicted

testimony" by the deputies as to which officer located the drugs and

how many bags of drugs were actually found during the search.

Appellant contends that this conflicting testimony combined with

the state's failure to present any evidence directly placing the drugs

found in the cell in appellant's possession is a "fatal flaw" to the

state's case and should have prevented a guilty verdict. We disagree,

as it was within the province of the jury, as the trier of fact, to take

note of any inconsistencies in the testimony and resolve them

accordingly, believing all, part, or none of each witness's testimony.

State v. Woodard, 12th Dist. Warren No. CA2016-09-084, 2017-

Ohio-6941, ¶ 24. See also State v. Antill, 176 Ohio St. 61, 67, 197

N.E.2d 548 (1964) (recognizing that the jury, as the "sole judge of

the weight of the evidence and the credibility of witnesses," may

"believe or disbelieve any witness or accept part of what a witness

says and reject the rest").

[*P30] In the present case, after reviewing the record, weighing

inferences and examining the credibility of the witness, we find that

appellant's convictions for aggravated possession of

methamphetamine, aggravated possession of fentanyl, and

possession of cocaine are supported by sufficient evidence and are

not against the weight of the evidence. The state presented testimony

and evidence from which the jury could have found all the essential

elements of the possession offenses proven beyond a reasonable

doubt. The state presented testimony that after appellant entered the

12-man cell on August 18, 2016, drugs appeared in the 12-man cell.

When a search was conducted on August 27, 2016, Deputy Lower

saw appellant make a tossing motion. Lower then searched

appellant's bed and the area nearby it and found a baggie containing

a white substance. The baggie was turned over as evidence and was

found to contain three separate baggies. Subsequent testing of the

substances found in the baggies by BCI indicated the brown

substance was 3.45 grams of fentanyl, the crystalline substance was

5.42 grams of methamphetamine, and the off-white substance was

0.33 gram of cocaine. Further, in addition to Lower's testimony

about finding the drugs near the shower area located by appellant's

bunk, the jury heard testimony from Deputy Havens that his K-9

alerted on the appellant's bunk, near the corner of the bunk closest

to the shower area where Lower found the drugs.

[*P31] These facts - appellant's tossing movement, the location

where the drugs were found, and the fact that the narcotics K-9

alerted on appellant's bunk near the area where the drugs were

located - are circumstantial evidence that appellant knowingly

possessed the methamphetamine, fentanyl, and cocaine in question.

As we have previously held, "[c]ircumstantial evidence has the same

probative value as direct evidence." State v. Evans, 12th Dist.

Warren No. CA2017-04-049, 2018-Ohio-916, ¶ 65, citing State v.

Young, 12th Dist. Butler No. CA2016-10-201, 2018-Ohio-701, ¶

61; and Jenks, 61 Ohio St.3d at 272. Therefore, given the evidence

presented at trial, we find that the jury did not lose its way and create

such a manifest miscarriage of justice such that appellant's

convictions for aggravated possession of methamphetamine,

aggravated possession of fentanyl, and possession of cocaine must

be reversed and a new trial ordered. As appellant's convictions were

not against the manifest weight of the evidence, we necessarily

conclude that the state presented sufficient evidence to support the

jury's finding of guilt and to overcome appellant's

motion. See Jones, 2013-Ohio-150 at ¶ 19. Appellant's first and

second assignments of error are overruled.

Lark, 2018-Ohio-4940.

Lark has filed no reply to argue why these conclusions by the appellate court are either an

unreasonable application of Supreme Court precedent or an unreasonable determination of the

facts. Looking back at the argument Lark made on direct appeal, the Magistrate Judge notes it was

focused on the absence of direct evidence and the State’s reliance on circumstantial evidence

(Appellant’s Brief, State Court Record, ECF No. 3, PageID 47-48).

“Circumstantial evidence alone is sufficient to support a conviction, and it is not necessary

for the evidence to exclude every reasonable hypothesis except that of guilt.” United States v.

Ramirez, 635 F.3d 249, 256 (6th Cir. 2011), quoting United States v. Stone, 748 F.2d 361, 362 (6th

Cir. 1993); United States v. Wettstain, 618 F.3d 577, 583 (6th Cir. 2010); United States v.

McAuliffe, 490 F.3d 526, 537 (6th Cir. 2007); United States v. Kelley, 461 F.3d 817, 825 (6th Cir.

2006); United States v. Reed, 167 F.3d 984, 992 (6th Cir. 1999); United States v. Beddow, 957 F.2d

1330, 1334 (6th Cir. 1992).

“[D]irect evidence of a fact is not required. Circumstantial evidence is not only sufficient,

but may also be more certain, satisfying and persuasive than direct evidence. Michalic v. Cleveland

Tankers, Inc., 364 U.S. 325, 330 (1960)(Brennan), citing Rogers v. Missouri Pacific R. Co., 352

U.S. 500, 508, n. 17(1957). As an example, identification by DNA evidence is only circumstantial,

but its can scientifically prove probable identity to the degree of one in many times the current

population of earth, obviously far better than eyewitness identification. See Loftus, Eyewitness

Testimony (1996); Garrett, Convicting the Innocent: Where Criminal Prosecutions Go Wrong

(2011).

In this case the circumstantial evidence, believed by the jury and the court of appeals, was

sufficient for conviction. Petitioner’s First Ground for Relief should therefore be denied on the

merits.

Ground Two: Exclusion of Exculpatory Evidence

In his Second Ground for Relief, Petitioner asserts the trial court violated his right to due

process of law when it excluded a statement made on August 29, 2016, by James Tanner who had

been a cellmate of Lark’s at the time of the offenses in this case.

Because Lark filed no reply, the Magistrate Judge again turns to his appellate brief. There

he claimed that Tanner’s statement was admissible under Ohio R. Evid. 804(b)(3). However, he

also presented the federal constitutional issue, relying on Chambers v. Mississippi, 410 U.S. 284,

302 (1973).

This claim regarding the Tanner statement was Assignment of Error Three on direct appeal

and the Twelfth District decided it as follows:

[*P34] In his third assignment of error, appellant contends the trial

court erred when it excluded from evidence the written statement

James Tanner purportedly made on August 29, 2016. Appellant

maintains that the statement should have been admitted as a hearsay

exception under Evid.R. 804(B)(3) as a statement against interest

since Tanner was unavailable to testify and the circumstances

surrounding his statement indicated the trustworthiness of the

statement.

[*P35] "[A] trial court has broad discretion to determine whether a

declaration should be admissible as a hearsay exception." State v.

Dever, 64 Ohio St.3d 401, 410, 1992- Ohio 41, 596 N.E.2d 436

(1992). See also State v. Hand, 107 Ohio St.3d 378, 2006-Ohio-18,

¶ 92, 840 N.E.2d 151. As a trial court has broad discretion in the

admission or exclusion of evidence, unless the trial court has clearly

abused its discretion and the defendant has been materially

prejudiced thereby, an appellate court will not disturb the trial

court's decision. State v. Smith, 12th Dist. Warren No. CA2010-05-

0047, 2011-Ohio-1476, ¶ 69, citing State v. Barnes, 94 Ohio St.3d

21, 23, 2002- Ohio 68, 759 N.E.2d 1240 (2002). An abuse of

discretion connotes more than an error of law or judgment; it implies

that the trial court's decision was unreasonable, arbitrary, or

unconscionable. State v. Gearhart, 12th Dist. Warren No. CA2017-

12-168, 2018-Ohio-4180, ¶ 13.

[*P36] Appellant sought to introduce the written statement Tanner

purportedly made on August 29, 2016 to Deputy Brian Carlson. On

this date, Tanner was said to have been advised of his Miranda rights

before waiving his rights and making the following written

statement: "I had the drugs on me on the 27th of August. I was in

my bunk and tossed them down to my right hoping to get rid of them

or possibly not be responsible. * * * [T]hey were in one bag." When

questioned about whether he was asked to write a confession to the

possession of drugs, Tanner wrote, "Not at all."

[*P37] The trial court excluded Tanner's written statement from

being introduced into evidence due to the requirements of Evid.R.

804(B)(3) and 804(A)(5). "Under Evid.R. 804(B)(3), the hearsay

rule will not exclude a statement against interest that tends to expose

the declarant to criminal liability and that is corroborated by

circumstances clearly indicating the truthworthiness of the

statement." State v. Hiles, 4th Dist. Ross No. 08CA3080, 2009-

Ohio-6602, ¶ 11. See also State v. Watson, 12th Dist. Butler No.

CA2016-08-159, 2017-Ohio-1403, ¶ 34. However, for Evid.R.

804(B)(3) to apply, the declarant must be unavailable as a witness.

See Evid.R. 804(B)(3). [footnote omitted] Evid.R. 804(A)(5)

provides that a declarant is "unavailable as a witness" if the declarant

"is absent from the hearing and the proponent of the declarant's

statement has been unable to procure the declarant's attendance (or

in the case of a hearsay exception under division (B)(2), (3), or (4)

of this rule, the declarant's attendance or testimony) by process or

other reasonable means."

[*P38] "A declarant is not 'unavailable' within the meaning of

Evid.R. 804(A) unless the party seeking admission of the hearsay

evidence has made 'reasonable efforts in good faith to secure his

presence at trial.'" State v. Jenkins, 4th Dist. Lawrence No. 05CA7,

2006-Ohio-2546, ¶ 38, quoting State v. Keairns, 9 Ohio St.3d 228,

230, 9 Ohio B. 569, 460 N.E.2d 245 (1984). "A showing of

unavailability under Evid.R. 804 must be based on testimony of

witnesses rather than hearsay not under oath unless unavailability is

conceded by the party against whom the statement is being offered."

Keairns at paragraph three of the syllabus. See also State v. Tabor,

12th Dist. Warren No. CA2011-07-076, 2012-Ohio-4642, ¶ 12. The

measures the proponent of the statement must undertake in order to

fulfill its burden of reasonableness and good faith depend on the

facts and circumstances of each case. Tabor at ¶ 14.

[*P39] In the present case, defense counsel testified about the steps

he had taken in an attempt to procure Tanner's presence at trial.

Defense counsel testified that on November 2, 2017, after learning

Tanner had been released on APA supervision, he contacted the

APA to inquire about Tanner's whereabouts. Defense counsel was

given Tanner's parole officer's name and phone number. Defense

counsel called the parole officer and left a voicemail for the officer.

Tanner's parole officer did not return the call. On January 25, 2018,

defense counsel placed a second phone call to Tanner's parole

officer. Defense counsel again left a message with the officer, but

the officer never called him back. Defense counsel discussed

Tanner's whereabouts with appellant and was advised that "the word

* * * was [Tanner] was homeless." Defense counsel ran Tanner

through Westlaw's investigative portal but was unable to obtain a

"good address" for him. Defense counsel stated he did not attempt

to subpoena Tanner for trial and stated that, as of the February 15,

2018 trial date, he believed Tanner was still on APA supervision.

[*P40] After hearing the foregoing testimony, the trial court

determined that appellant failed to demonstrate Tanner was

unavailable as contemplated by Evid.R. 804. The record supports

the trial court's determination that reasonable efforts in good faith

were not made to secure Tanner's presence at trial. Running Tanner's

name through an investigative portal and placing two phone calls to

Tanner's known parole officer over the course of three months was

insufficient to satisfy the requirements of Evid.R. 804(A)(5).

Although the proponent of a statement does not need to exhaust

every avenue of inquiry in an effort to obtain the declarant's

presence at trial, reasonable efforts must be made. See Tabor, 2012-

Ohio-4642 at ¶ 13-14. Here, there was no evidence introduced that

defense counsel sent a letter or fax to the APA requesting

information on Tanner's whereabouts, scheduled an appointment to

speak with Tanner's parole officer, placed a visit to Tanner's last

known address, or attempted to serve Tanner with a subpoena at said

address. Given these facts, the trial court did not abuse its discretion

in determining that appellant failed to make reasonable efforts to

secure Tanner's presence at trial.

[*P41] As appellant failed to demonstrate Tanner's unavailability

as a witness as contemplated by Evid.R. 804(A)(5), we find that the

trial court did not err in excluding Tanner's written statement from

evidence. Further, because Tanner was not "unavailable as a

witness," this court need not review the trial court's finding that

appellant failed to demonstrate the trustworthiness or reliability of

Tanner's written statement. Appellant's third assignment of error is,

therefore, overruled.

Lark, 2018-Ohio-4940.

Although the trial judge found that Tanner had not been shown to be unavailable within

the meaning of Ohio R. Evid. 804(A)(5) or that “corroborating circumstances clearly indicate the

truthworthiness of the statement” as required by Ohio R. Evid. 804(B)(3), the Twelfth District

decided only the unavailability question.

A fair opportunity to present a defense in a criminal case is a constitutional right. Baze v.

Parker, 371 F.3d 310, 323 (6th Cir. 2004), citing Crane v. Kentucky, 476 U.S. 683, 690 (1986).

Few rights are more fundamental than that of an accused to present witnesses in his own defense.

Chambers v. Mississippi, 410 U.S. 284, 302 (1973)(citations omitted). However, a defendant must

comply with established rules of procedure and evidence designed to assure both fairness and

reliability in the ascertainment of guilt and innocence. Id. Judges have a wide discretion to exclude

evidence which is only marginal. Crane, 476 U.S. at 690. The right to present relevant evidence

is not unlimited, but subject to reasonable restrictions. United States v. Scheffer, 523 U.S. 303,

308 (1998), and may bow to accommodate other legitimate interests in the criminal trial process.

Rock v. Arkansas, 483 U.S. 44, 55 (1987). The right to present a complete defense means that any

state evidentiary rules used to exclude evidence cannot be “arbitrary” or “disproportionate to the

purpose they are designed to serve.” Wynne v. Renico, 606 F.3d 867, 870 (6th Cir. 2010) quoting

United States v. Scheffer, 523 U.S. 303, 308 (1998).

Chambers was on trial for murder. He called as his first witness another person who had

confessed to the crime but then recanted on the witness stand. He was precluded from cross-

examining the witness under the common-law rule, abolished now in Ohio, the federal courts, and

most other jurisdictions, that a party “vouches” for the credibility of witnesses he calls and cannot

cross-examine them. Chambers was also precluded by the hearsay rule from presenting three other

witnesses to whom the first witness had made out-of-court confessions; Mississippi at the time

also did not recognize a hearsay exception for declarations against penal interest as is recognized

in Ohio R. Evid. 804(b)(3). The Supreme Court held the cumulative effect of these holdings

prevented Chambers from receiving a fair trial. Chambers upholds the application of the hearsay

rule generally in criminal trials and in particular does not question the unavailability requirement

for some hearsay exceptions. And of course Fed. R. Evid. 804 contains the same requirement.

Given that the unavailability requirement is not itself unconstitutional, the issue before this

Court is whether the Ohio courts’ finding that Lark had not shown Tanner was unavailable is a

reasonable determination based on the evidence presented. The Magistrate Judge concludes that

determination was not unreasonable. Trial counsel made only the two telephone calls to the Adult

Parole Authority. When those were unsuccessful, he relied on the hearsay conveyed by his client,

to wit, that Tanner was homeless.

Because the state courts reasonably concluded Lark had not proven Tanner was unavailable

to testify, their conclusion is entitled to deference under 28 U.S.C. § 2254(d)(2). The Second

Ground for Relief should therefore be dismissed on the merits;

Ground Three: Prejudicial Delay

In his Third Ground for Relief, Lark claims he received ineffective assistance of appellate

counsel when his appellate attorney did not raise as an assignment of error that he received

ineffective assistance of trial counsel when his trial attorney did not make a claim of prejudicial

pre-indictment delay.

In his Application to Reopen the direct appeal under Ohio. R. App. P. 26(B), which he filed

pro se, Lark asserts the offenses in this case occurred on August 27, 2016, and he was not indicted

until April 21, 2017, virtually eight months later (State Court Record, ECF No. 3, Ex. 13, PageID

139). The Indictment supports this chronology. Id. at Ex. 1. Lark argued the issue as if the sole

question before the Twelfth District was whether he had suffered prejudice by the delay and

pointed to the exclusion of the Tanner statement. But that was not the issue on the 26(B)

application. Instead, Lark had to show it was deficient performance of his trial attorney not to

raise this claim in the trial court and then that that it was deficient performance by his appellate

attorney not to raise that failure as an assignment of error.

In deciding this claim, the Twelfth District employed the correct federal standard as

enunciated in Strickland v. Washington, 466 U.S. 668 (1984). State v. Lark, Case No. CA2018-

03-04 (Ohio App. 12th Dist. Jun. 13, 2019)(unreported; copy at State Court Record, ECF No. 3,

Ex. 14). The appellate court relied on its own prior finding on direct appeal that Lark had not

proven Tanner was unavailable, undermining any prejudice claim. It also found Lark had not

produced any evidence that the State waited to indict until Tanner was unavailable. Finally, it

concluded:

Under Strickland, a court must apply a heavy measure of deference

to counsel's judgments, and indulge a strong presumption that

counsel's conduct falls within the wide range of reasonable

professional assistance. Moreover, the basis of appellant's claim is

counsel's failure to raise certain issues on appeal and appellate

counsel need not raise every possible issue in order to render

constitutionally effective assistance. State v. Burke, 97 Ohio St.3d

55, 2002-Ohio-5310, ¶ 7. See Jones v. Barnes, 463 U.S. 745, 103

S.Ct. 3308 (1983).

Id. at PageID 151.

The conclusion that Lark did not suffer ineffective assistance of appellate counsel in the

manner claimed is not an unreasonable application of Supreme Court precedent. Delay is

presumptively prejudicial only where the post-accusation delay approaches one year. Doggett v.

United States, 505 U.S. 647 (1992), and here it was only seven months. While Tanner was not

found to testify, two other cellmates were present to testify in Lark’s behalf. Thus it is hardly clear

that a motion to dismiss made in the trial court would have been successful.

The Twelfth District’s conclusion that this argument was sufficiently weak that its

omission did not constitute ineffective assistance of appellate counsel is a reasonable application

of Supreme Court precedent and thus entitled to deference under 289 U.S.C. § 2254(d)(1). The

Third Ground for Relief should therefore be denied.

Conclusion

Based on the foregoing analysis, it is respectfully recommended that the Petition be

dismissed with prejudice. Because reasonable jurists would not disagree with this conclusion, it

is also recommended that Petitioner be denied a certificate of appealability and that the Court

certify to the Sixth Circuit that any appeal would be objectively frivolous and should not be

permitted to proceed in forma pauperis.

April 4, 2020.

s/ Michael R. Merz

United States Magistrate Judge

NOTICE REGARDING OBJECTIONS

Pursuant to Fed. R. Civ. P. 72(b), any party may serve and file specific, written objections to the

proposed findings and recommendations within fourteen days after being served with this Report

and Recommendations. Because this document is being served by mail, three days are added under

Fed.R.Civ.P. 6. 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. 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.