The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF OHIO
WESTERN DIVISION AT CINCINNATI
WILLIAM TUCKER,
Petitioner, : Case No. 1:20-cv-628
- vs - District Judge Michael R. Barrett
Magistrate Judge Michael R. Merz
WARDEN, Belmont
Correctional Institution,
:
Respondent.
REPORT AND RECOMMENDATIONS
This habeas corpus case, brought pro se by Petitioner William Tucker pursuant to 28
U.S.C. § 2254, is before the Court for decision on the merits. Relevant filings are the Petition
(ECF No. 1), the State Court Record (ECF No. 6), the Return of Writ (ECF No. 7), and Petitioner’s
Reply (ECF No. 15).
On April 28, 2021, the Court received and filed a request from Petitioner for a copy of his
Reply as filed (ECF No. 18). That request is GRANTED and the Clerk shall forthwith furnish
Plaintiff, without fee, with a copy of his Reply showing the CM/ECF header which is necessary
for compliance with the Court’s record citation rule.
The same document relates Petitioner’s belief that the State had fifteen days in which to
file a response to his Reply. However, no rule or practice of this Court anticipates such a filing
and the State has neither sought nor received leave to file such a response.
The Magistrate Judge reference in the case was recently transferred to the undersigned to
help balance the Magistrate Judge workload in the District (ECF No. 16).
Litigation History
In January of 2017, the Butler County Grand Jury indicted Tucker on two counts of aggravated
arson in violation with Ohio Revised Code § 2909.02(A)(1), two counts of aggravated arson in
violation with Ohio Revised Code § 2909.02(A)(2), and two counts of felony murder in violation with
Ohio Revised Code § 2903.02(B). (Indictment, State Court Record, ECF No. 6, Exhibit 1). Tucker
was indicted along with his uncle Lester Parker. The State’s theory was that Parker, intending to collect
insurance proceeds, hired Tucker to burn his residence. A firefighter, Patrick Wolterman, was killed
while fighting the fire.
A jury found Tucker guilty of two counts of aggravated arson and one count of murder. After
merging counts under Ohio Revised Code § 2941.25, the trial court sentenced Tucker to fifteen years
to life imprisonment. Id. Ex. 5. Represented by new counsel, Tucker appealed to the Ohio Twelfth
District Court of Appeals which affirmed the conviction. State v. Tucker, 2019-Ohio-911 (Ohio App.
12th Dist. Mar. 18, 2019), appellate review declined, 157 Ohio St. 3d 1484 (2019).
Tucker filed his Petition for Writ of Habeas Corpus in this Court on August 6, 2020, the
date he deposited it in the prison mail system. He pleads the following grounds for relief:
Ground One: Evidence was insufficient to support convictions and
the verdict was against the manifest weight of the evidence.
Ground Two: Trial court erred to the prejudice of Tucker where it
failed to grant his motion for relief from prejudicial joinder.
Ground Three: The State of Ohio engaged in prosecutorial
misconduct at trial prejudicing the jury so that they clearly lost their
way in convicting Tucker and causing a manifest injustice, due to
being deprived of fair trial.
(Petition, ECF No. 1, PAGEID 5, 9, 13).
Ground One: Insufficient Evidence; Verdict Against the Manifest Weight of the Evidence
In his First Ground for Relief, Tucker asserts his conviction is supported by constitutionally
insufficient evidence and is against the manifest weight of the evidence. These two claims are
frequently pleaded together as Tucker did in his First Assignment of Error on direct appeal.
Federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C.
§ 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990);
Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is not the
province of a federal habeas court to reexamine state court determinations on state law questions.
In conducting habeas review, a federal court is limited to deciding whether a conviction violated
the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68
(1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall C. J.);
Bickham v. Winn, 888 F.3d 248 (6th Cir. Apr. 23, 2018)(Thapar, J. concurring).
As Respondent asserts, a weight of the evidence claim is not a federal constitutional claim.
Johnson v. Havener, 534 F.2d 1232 (6th Cir. 1986). However, an allegation that a verdict was
entered upon insufficient evidence does state 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
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; Smith v. Nagy, 962 F.3d 192, 205 (6th Cir. 2020) (quoting
Jackson).
When an appellant combines these two claims in one assignment of error, an Ohio court of
appeals will usually decide them together, as the Twelfth District did here, writing:
[*P6] THE EVIDENCE WAS INSUFFICIENT TO SUPPORT
APPELLANT'S CONVICTIONS AND THE VERDICT WAS
AGAINST THE MANIFEST WEIGHT OF THE EVIDENCE.
[*P7] Tucker argues that the state's evidence was legally
insufficient to convict him of the aggravated arson counts as the
evidence against him was entirely circumstantial. Tucker further
argues that his convictions were against the weight of the evidence.
[*P8] The concept of legal sufficiency of the evidence refers to
whether the conviction can be supported as a matter of law. State v.
Everitt, 12th Dist. Warren No. CA2002-07-070, 2003-Ohio-2554, ¶
10. In reviewing the sufficiency of the evidence, an appellate court
must examine the evidence admitted at trial to determine whether
such evidence, if believed, would convince the average mind of the
defendant's guilt beyond a reasonable doubt. State v. Jenks, 61 Ohio
St.3d 259, 574 N.E.2d 492 (1991), paragraph two of the syllabus.
The relevant inquiry is whether, after reviewing the evidence in a
light most favorable to the prosecution, any rational trier of fact
would have found all the essential elements of the crime proven
beyond a reasonable doubt. Id.
[*P9] To determine whether a conviction is against the manifest
weight of the evidence, a reviewing court must look at the entire
record, weigh the evidence and all reasonable inferences, consider
the credibility of the witnesses, and determine whether in resolving
the conflicts in the evidence, the trier of fact clearly lost its way and
created such a manifest miscarriage of justice that the conviction
must be reversed and a new trial ordered. State v. Bradbury, 12th
Dist. Butler No. CA2015-06-111, 2016-Ohio-5091, ¶ 17. An
appellate court will overturn a conviction due to the manifest weight
of the evidence only in extraordinary circumstances when the
evidence presented at trial weighs heavily in favor of acquittal. Id.
at ¶ 18. A finding that a conviction is supported by the manifest
weight of the evidence is also dispositive of the issue of sufficiency.
State v. Jones, 12th Dist. Butler No. CA2012-03-049, 2013-Ohio-
150, ¶ 19.
[*P10] The trial evidence revealed that Parker, who lived with his
wife Bertha at 1310 Pater Avenue in Hamilton, Ohio, had debts
exceeding $143,000. On the day of the fire, approximately $60,000
of those debts were past due. Shortly before Christmas Eve 2015,
Parker began moving various items out of 1310 Pater Avenue. Items
removed included framed family photographs, decorative objects
and mementos, and important documents. On December 27, 2015,
Parker and Bertha went to Las Vegas on a planned vacation.
[*P11] Tucker, originally from Hamilton, Ohio, resided in
Richmond, Kentucky at the time of the fire. During the evening
hours of December 27, 2015, Kim Brooks, one of Tucker's
girlfriends, requested that Courtney Basinger drive to Richmond to
bring Tucker back to Hamilton. Basinger understood that she was
bringing Tucker to Hamilton so that he could obtain oxycodone
tablets. Basinger understood that she would be compensated for
transporting Tucker with gas money and oxycodone.
[*P12] Basinger was accompanied by Brooks, Basinger's two
children, and the children's teenaged babysitter. Basinger met
Tucker at a CVS Pharmacy in Richmond. Tucker was carrying a
gym bag. Upon their return to Hamilton, Basinger dropped off the
children and the babysitter and she, Tucker, and Brooks drove to the
east side of Hamilton.
[*P13] Tucker instructed Basinger to park on Grand Boulevard
between Pater Avenue and Allstatter Avenue. Basinger testified that
Tucker exited the vehicle with the gym bag and walked towards
Pater Avenue. Tucker then turned onto Pater Avenue and
disappeared from her view as he continued up the street. Basinger
estimated that Tucker returned to the vehicle approximately 20
minutes after leaving. As he approached the vehicle, he was
breathing heavily, carrying the gym bag, a gas can, and a padlock.
Basinger's vehicle was confirmed to have been in the vicinity of
2400-2510 Grand Boulevard on December 28, 2015 at 12:45 a.m.
based upon a police cruiser license plate reader report. Google GPS
data taken from Basinger's cellular phone records indicated that her
phone was stationary between 12:41 a.m. and 12:52 a.m.
[*P14] At 1:05 a.m. on December 28, 2015, Officer Brian Gleason
of the Hamilton Police Department was dispatched to 1310 Pater
Avenue in reference to an intrusion alarm. Upon arrival he
discovered smoke coming from the home. He conducted a perimeter
sweep and noted that the rear cellar doors to the home were open. It
was later determined that the cellars doors had been secured by a
hasp and padlock. Based on damage to the hasp, detectives believed
that it had been broken off with a pry tool.
[*P15] The fire department responded at 1:15 a.m. Firefighter
Wolterman entered the home through the front door. By then,
however, an arson fire set in the home's basement had severely
damaged the joists supporting the first floor. The floor collapsed and
Wolterman fell through to the basement and he perished from the
effects of the fire.
[*P16] In the ensuing investigation, Detective Webb of the
Hamilton police department travelled to Richmond to question
Tucker about the fire. Tucker denied any involvement and claimed
that he was in Richmond when the fire occurred.
[*P17] The evidence indicated that Tucker routinely used the
cellular phones of friends and family. Tucker also communicated
via Facebook messenger.
[*P18] Detectives obtained records for the cellular phones of
Parker, Tucker's brother Stacy, Tucker's girlfriend Linda Rose, a
prepaid cellular phone Parker purchased and activated while he was
in Las Vegas and a pay phone in a Marathon gas station parking lot
located across from the Cove Motel in Hamilton.
[*P19] Stacy testified that he and Parker rarely spoke to one
another. However, on December 20, 2015, eight days prior to the
fire, records indicated a 27-minute call, initiated by Parker to Stacy's
cellular phone.
[*P20] Although Linda Rose knew neither Parker nor his wife
Bertha, a call was placed from her cellular phone to Parker's cellular
phone on December 27, 2015 at 1:38 p.m. The call lasted 27
seconds.
[*P21] At 3:15 a.m., on December 28, 2015, Tucker sent Rose a
Facebook message that read, "Baby Doll. Done with the job. Got to
get some rest and call you tomorrow."
[*P22] During the afternoon of December 28, 2015, there were
four calls between Stacy's cellular phone and either Parker's cellular
phone or Parker's prepaid Las Vegas phone. An additional call
occurred between Stacy's cellular phone and Parker's cellular phone
on December 29, 2015 at 11:22 a.m.
[*P23] Tucker and Brooks stayed at the Cove Motel in Hamilton
on December 29 and left on December 30, 2015. On December 30,
2015 there were seven phone calls placed from either Parker's
cellular phone or his Las Vegas prepaid phone to the pay phone
across the street from the Cove Motel.
[*P24] James Parker (unrelated) dated Parker's daughter, Melissa
Jones. He testified that in June 2015 he was helping Parker install
siding on Parker's garage located next to 1310 Pater Avenue. He
commented to Parker about recent renovations to 1310 Pater
Avenue. Parker told him that the renovations had occurred because
of a fire that he and his nephew had set for "insurance reasons."
[*P25] At trial, Tucker testified and admitted that he lied to the
detective who questioned him about his whereabouts on the morning
of the fire. Tucker admitted that Basinger had transported him to the
area of Pater Avenue where he briefly left the vehicle. However,
Tucker claimed that his purpose was not to set a fire but to obtain
oxycodone tablets from Melissa Jones. Tucker asserted that he had
arranged to meet Melissa around midnight on Allstatter Avenue
where he purchased 30 oxycodone tablets from her and left.
[*P26] Upon a thorough review of the record, this court concludes
that the jurors did not lose their way in finding Tucker guilty. The
state presented substantial circumstantial evidence establishing that
Tucker and Parker conspired to commit arson and that Tucker was
the individual who set fire to Parker's home. Tucker was in
communication with Parker before and after the fire and admitted
he was on the scene at the very moment the fire started. Basinger
testified that Tucker was carrying a gas can upon returning to the
vehicle.
[*P27] Both Tucker and Parker testified. Parker denied being
involved in the fire and claimed that the state's witnesses, including
both of his daughters, were liars. Tucker's defense case rested on the
likelihood of jurors believing that he just happened to plan to meet
Parker's daughter a block away from her father's home at the precise
time an arson fire was committed there. The jury is in a better
position than this court to weigh credibility. This is not a case where
the evidence weighs heavily against the conviction. This court's
determination that the greater weight of the evidence supports
Tucker's conviction is dispositive of the issues of the sufficiency of
the evidence. Jones, 2013-Ohio-150 at ¶ 19. This court overrules
Tucker's first assignment of error.
State v. Tucker, supra.
As the second-last sentence just quoted from this opinion implies, if a verdict is not against
the manifest weight of the evidence, logically there must be sufficient evidence to support the
verdict. Nash v. Eberlin, 258 Fed. Appx. 761, 2007 U.S. App. LEXIS 29645 (6th Cir. Dec. 14,
2007); Ross v. Miller, No. 1:10-cv-1185, 2011 U.S. Dist. LEXIS 65082 (N.D. Ohio May 10,
2011)(White, M.J.); Hughes v. Warden, No. 1:10-cv-091, 2011 U.S. Dist. LEXIS 54131 (S.D.
Ohio Apr. 27, 2011)(Merz, M.J.).
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 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).
Most of Tucker’s argument in his Reply focuses on two issues: Courtney Basinger should
not have been believed and the evidence against him was circumstantial. As to Basinger’s
credibility, he argues she should not be believed because of inconsistencies in her various accounts
of the events in suit and she was a persistent drug user who had a motive to lie to get reward money
to purchase drugs. Tucker correctly emphasizes that these are acceptable means of impeachment
and that he had a right to use them to persuade the jury that Basinger should not be believed. He
correctly notes “impeachment evidence falls squarely within the Supreme Court's Confrotation
[sic] Clause precedents” (Reply, ECF No. 15, PageID 2431). Had Tucker’s counsel been
prevented from confronting Basinger with this impeaching evidence, Tucker would have a claim
under the Confrontation Clause. Had his attorney failed to use this impeaching evidence, he could
have a claim of ineffective assistance of trial counsel. But the bottom line is that issues of witness
credibility are for the trier of fact to resolve and here the jury resolved them, despite the impeaching
evidence, against Tucker. Federal habeas courts do not reweigh or reconsider the credibility of
witness testimony. Brooks, supra.
Tucker’s other complaint in his sufficiency of the evidence claim is that the case against
him was so strongly built on circumstantial evidence. There is a strong popular sense that
somehow circumstantial evidence is weaker than direct evidence, but the law does not recognize
that distinction. Nor should it, for sometimes circumstantial evidence is much stronger than direct
testimony. “[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).
For example, in a rape case, DNA analysis can limit the possible contributors of DNA to
one in a figure many times the current male population of the planet. Conversely, many of the
first 250 men exonerated on the basis of DNA evidence had been identified by direct testimony of
victims. CONVICTING THE INNOCENT: WHERE CRIMINAL PROSECUTIONS GO WRONG – BRANDON
L. GARRETT (2012). There is no DNA evidence in this case, but DNA evidence in any case is
plainly circumstantial.
In addition to DNA analysis, contemporary electronic technology provides many
additional opportunities to gather circumstantial evidence. For example, the Twelfth District
found:
Basinger's vehicle was confirmed to have been in the vicinity of
2400-2510 Grand Boulevard on December 28, 2015 at 12:45 a.m.
based upon a police cruiser license plate reader report. Google GPS
data taken from Basinger's cellular phone records indicated that her
phone was stationary between 12:41 a.m. and 12:52 a.m.
State v. Tucker, supra, ¶ 13. Additional circumstantial evidence of cellphone records contributed
to the case against Tucker. Id. at ¶¶ 17-23. Circumstantial evidence is, of course, also subject to
impeachment, but the jury here clearly accepted the authenticity and explanatory power of the
circumstantial evidence presented. Circumstantial evidence may be misinterpreted, but it cannot
lie.
“Circumstantial evidence and direct evidence inherently possess the same probative value
and therefore should be subjected to the same standard of proof. When the state relies on
circumstantial evidence to prove an essential element of the offense charged, there is no need for
such evidence to be irreconcilable with any reasonable theory of innocence in order to support a
conviction. Holland v. United States, 348 U.S. 121(1954); State v. Kulig, 37 Ohio St. 2d 157
(1974), overruled on other grounds by State v. Jenks, 61 Ohio St. 3d 259 (1991).
“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).
Based on this analysis, Tucker’s insufficient evidence claim is without merit and should be
dismissed with prejudice.
Ground Two: Prejudicial Joinder
Tucker was indicted along with Lester Parker and they were tried together, despite
Tucker’s objection. Tucker raised a claim of prejudicial joinder on appeal and the Twelfth District
decided it as follows:
[*P29] THE TRIAL COURT ERRED TO THE PREJUDICE OF
APPELLANT WHERE IT FAILED TO GRANT DEFENDANT'S
MOTION FOR RELIEF FROM PREJUDICIAL JOINDER.
[*P30] Tucker argues that the trial court plainly erred when it did
not sever his joint trial. Notice of plain error is to be taken with the
utmost caution, under exceptional circumstances, and only to
prevent a manifest miscarriage of justice. Crim.R. 52(B); State v.
Lott, 51 Ohio St.3d 160, 164, 555 N.E.2d 293 (1990).
[*P31] Crim.R. 8(B) allows for joinder of defendants in the same
indictment. Joinder of defendants and the avoidance of multiple
trials is favored in the law. State v. Thomas, 61 Ohio St.2d 223, 225,
400 N.E.2d 401 (1980). Joinder conserves judicial and prosecutorial
time, lessens the considerable expense of multiple trials, diminishes
inconvenience to witnesses, and minimizes the possibility of
incongruous results in successive trials before different juries. Id.
"[J]oinder of defendants is proper so long as all defendants
participated in the same series of transactions leading to the charges
even though not all defendants participated in every act. * * * Not
all defendants need be charged in each count * * * nor would
differing levels of culpability among defendants necessarily justify
severance." State v. Schiebel, 55 Ohio St.3d 71, 88-89, 564 N.E.2d
54 (1990).
[*P32] Crim.R. 14 permits a trial court to sever a joint trial and
grant separate trials if joinder has a prejudicial effect on the accused.
However, the accused bears the burden of proving prejudice. State
v. Coley, 93 Ohio St.3d 253, 259, 2001-Ohio-1340, 754 N.E.2d 1129
(2001). "The test is 'whether a joint trial is so manifestly prejudicial
that the trial judge is required to exercise his or her discretion in only
one way — by severing the trial. * * * A defendant must show clear,
manifest and undue prejudice and violation of a substantive right
resulting from failure to sever.'" Schiebel at 89, quoting United
States v. Castro, 887 F.2d 988, 996 (9th Cir.1989).
[*P33] A defendant may establish prejudice sufficient to warrant
severance "'when evidence that the jury should not consider against
a defendant and that would not be admissible if a defendant were
tried alone is admitted against a codefendant.'" State v. Walters, 10th
Dist. Franklin No. 06AP-693, 2007-Ohio-5554, ¶ 25, quoting Zafiro
v. United States, 506 U.S. 534, 539, 113 S. Ct. 933, 122 L. Ed. 2d
317 (1993). Defendants "are not entitled to severance merely
because they have a better chance of acquittal in separate trials."
Zafiro at 540.
[*P34] Tucker argues that substantial evidence that was only
relevant to Parker's charges could have erroneously and
prejudicially implicated him in the conspiracy. Specifically, Tucker
points to the evidence of Parker's financial distress, Parker's removal
of items from the home before the fire, Parker's continued gambling
in Las Vegas after the fire, and other evidence circumstantially
implicating Parker in the arson. Tucker argues that because it was
undisputed that Parker was in Las Vegas at the time of the fire then
jurors may have concluded that the Tucker must have set the fire
simply because he was the only other codefendant who was
available to accomplish the task.
[*P35] However, there is "no resulting prejudicial effect when the
evidence of each crime as alleged against each defendant is simple
and distinct." State v. Wyche, 10th Dist. Franklin No. No. 87AP-878,
1989 Ohio App. LEXIS 647, *9 (July 19, 1989). "In such cases, the
jury is capable of separating the proof required for each charge as
to the individual defendants." Id., citing State v. Roberts, 62 Ohio
St.2d 170, 175, 405 N.E.2d 247 (1980).
[*P36] The evidence related to Parker's motivation to commit
arson and his preparations for the arson are simple and distinct from
the evidence related to Tucker's involvement in the conspiracy and
there is no indication in the record that the jurors would have had
any difficulty in separating the evidence as it related to each
codefendant. And because this was a conspiracy, much of the
evidence inculpating Parker in the offense was relevant and
admissible against Tucker to establish the conspiracy.
[*P37] At oral argument, appellate counsel specifically argued the
inadmissibility and resulting prejudice from James Parker's
testimony. Parker testified that Parker told him that he and an
unidentified nephew had earlier set a fire for insurance reasons. This
court agrees that this testimony may not have been admissible in a
stand-alone trial against Tucker. However, this court does not find
that the court plainly erred in failing to, sua sponte, sever Tucker's
trial following this testimony. As discussed in the prior assignment
of error, the jurors convicted Tucker on ample circumstantial
evidence of his role in the arson. Given the substantial evidence, this
court cannot clearly find that jurors would have found Tucker not
guilty in a stand-alone trial that excluded this testimony.
[*P38] In addition, the court properly instructed the jury on the
rules concerning the consideration of separate evidence in a joint
trial and this court presumes that jurors follow the trial court's
admonitions. State v. Loza, 71 Ohio St.3d 61, 75, 1994-Ohio 409,
641 N.E.2d 1082 (1994). Tucker has established neither error nor
plain error. This court overrules Tucker's second assignment of
error.
State v. Tucker, supra.
The Warden argues Ground Two presents only a question of state law (Return, ECF No. 7,
PageID 2386). Tucker does not respond to this point in his Reply. In arguing the case on appeal,
although he did not mention any specific clause of the United States Constitution, Tucker relied
on Bruton v. United States, 391 U.S. 123 (1968), for the proposition that “joinder is not favored if
trying the two parties together will cause significant prejudice to Defendant's right to a fair trial.” The
Magistrate Judge concludes Tucker sufficiently relied on federal law to fairly present this constitutional
claim – denial of a fair trial by prejudicial joinder – to the Twelfth District so that its decision on the merits
of the Second Assignment of Error is entitled to deferential review under 28 U.S.C. § 2254(d)(1).
Harrington v. Richter, 562 U.S. 86, 105 (2011); Burt v. Titlow, 571 U.S. 12, 20 (2013).
The United States Supreme Court has held “[i]mproper joinder does not, in itself, violate
the Constitution.” United States v. Lane, 474 U.S. 438, 446 n. 8 (1986). To obtain federal habeas
relief on a misjoinder claim involving state law, a petitioner “must show that misjoinder of the
counts ‘result[ed] in prejudice so great as to deny a defendant his . . .right to a fair trial.” Davis v.
Coyle, 475 F.3d 761, 777 (6th Cir. 2007)(quoting Lane, 474 U.S. at 446 n. 8).
In his Reply, Tucker acknowledges that he must prove actual prejudice (ECF No. 15,
PageID 2435). To do so he argues that a substantial part of the evidence admitted at trial was
relevant only to Lester Parker. While that is true, he and Parker were part of the same transaction
and conspiracy and there was little chance the jury would use the evidence about Parker to convict
Tucker. The State had to prove that Parker ordered the fire set and did so by showing he had very
substantial debt, much of it overdue, that he had removed family memorabilia from the house, and
that he was out of town when the house burned, giving him an alibi should it be alleged he set the
fire himself. None of this tended to implicate Tucker: Parker did not owe Tucker money, Tucker
was not accused of helping Parker remove the memorabilia, etc. The jury could easily keep the
two parts of the transaction separate.
Tucker has not shown that the Twelfth District’s decision is an unreasonable application
of Lane or other Supreme Court precedent on improper joinder. The Twelfth District’s decision
is therefore entitled to deference and Ground Two should be dismissed.
Ground Three: Prosecutorial Misconduct
In his Third Ground for Relief, Tucker asserts he was denied a fair trial by the misconduct
of the prosecutors. In the Petition he specified that the prosecutor made “improper and prejudicial
remarks.” (ECF No. 1, PageID 13). The specific instances of misconduct complained of in the
Petition are (1) the prosecutor’s statement in closing argument "so don't be misled by statements
of attorneys telling you otherwise,” and (2) the prosecutor’s invitation to the jury to experiment
with time intervals with their watches. Id. at PageID 13-16. In both instances defense counsel
objected and the judge gave a curative instruction.
In his Reply, Tucker asserts additional instances of prosecutorial misconduct by:
(1) stating to the jury “if you find beyond a reasonable doubt Lester
Parker solicited this fire, but you're not real sure for whatever reason
that Billy Tucker set the match, you can still find him guilty";
(2) “by speaking with a witness (firefighter Joseph Geis)
outside the court room the day before Geis came in to testify;
(3) by allowing James Parker testify about Lester Parker's
past insurance claims.
(4) when it failed to release the 68 page NIOSHA report to the
defense that explains sixteen diferent [sic] violations made by the
fire department at the fire that were contributing factors in the
death of firefighter Patrick Wolterman.
(Reply, ECF No. 15 at PageID 2438-39).
Tucker presented a prosecutorial misconduct claim to the Twelfth District which decided
it as follows:
[*P59] THE STATE OF OHIO ENGAGED IN
PROSECUTORIAL MISCONDUCT AT TRIAL.
[*P60] Tucker argues that the state committed prosecutorial
misconduct during closing argument, which deprived him of a fair
trial. To demonstrate that the state deprived him of a fair trial,
Tucker must establish that the prosecutor's remarks were improper
and prejudicially affected his substantial rights. State v. Elmore, 111
Ohio St.3d 515, 2006-Ohio-6207, ¶ 62, 857 N.E.2d 547. In making
such a determination, the focus is upon the fairness of the trial, not
upon the culpability of the prosecutor. State v. Gray, 12th Dist.
Butler No. CA2011-09-176, 2012-Ohio-4769, ¶ 57. A finding of
prosecutorial misconduct will not be grounds for reversal unless the
defendant can establish that he has been denied a fair trial because
of the prosecutor's actions. State v. Smith, 12th Dist. Warren No.
CA2017-02-013, 2017-Ohio-7540, ¶ 29.
[*P61] Tucker argues that state committed misconduct when the
prosecutor stated "so don't be misled by statements of attorneys
telling you otherwise." Tucker argues that the prosecutor was
implying that defense counsel had been deceitful. Tucker's counsel
objected and the trial court sustained the objection, instructing jurors
to disregard the statement. This court does not find that the comment
deprived Tucker of a fair trial. As discussed above, the jury
convicted Tucker on substantial evidence of his guilt. Moreover, this
court presumes that jurors followed the trial court's instructions to
disregard the comment. Loza, 71 Ohio St.3d at 75.
[*P62] Next, Tucker argues that the state committed misconduct
when the prosecutor encouraged the jury to engage in "experiments"
with regard to the passage of time. The prosecutor encouraged jurors
to "take out your watches" and allow 27 seconds to elapse, which
was the length of the call between Linda Rose's cellular phone and
Parker's cellular phone on the day before the fire. The prosecutor
argued that this would demonstrate that 27 seconds was sufficient
time for Tucker and Parker to confirm that they were proceeding
with the arson plan.
[*P63] Later, the state recommended that the jurors "take out a
stopwatch and have an 11-minute moment of silence," i.e., the time
that Basinger's phone remained stationarywhile she was parked on
Grand Boulevard. Tucker objected, and the court indicated that it
did not want the prosecutor encouraging jurors to count the passage
of time, off the record, and during deliberations. Instead, the court
permitted the prosecutor to make his point by holding a five-minute
moment of silence during closing argument.
[*P64] Jurors are obligated to decide a case based only upon the
evidence and arguments presented during the trial. State v.
Villarreal, 12th Dist. Butler No. CA2004-02-035, 2005-Ohio-1924,
¶ 37, citing State v. Taylor, 73 Ohio App.3d 827, 831, 598 N.E.2d
818 (4th Dist.1991). It is therefore misconduct for a juror to engage
in any independent inquiry or experimentation concerning the
matter at trial. Taylor at 831. Juror misconduct is only grounds for
reversal if it results in prejudice to the defendant. Id., citing
Armleder v. Lieberman, 33 Ohio St. 77 (1877).
[*P65] This court does not find that juror misconduct occurred or
that the prosecutor encouraged juror misconduct. Juror misconduct
cases involving experimentation typically involve a juror using
extraneous tools, procedures, or methods to test a hypothesis,
outside of jury deliberations. See, e.g., State v. Doan, 1st Dist.
Hamilton No. C-940330, 1995 Ohio App. LEXIS 4395 (juror
conducted lighting experiment by putting lipstick on her arm to
simulate a bruise and tried to see it in a darkened room); State v.
Hubbard, 8th Dist. Cuyahoga No. 92033, 2009-Ohio-5817 (juror
used binoculars to determine how much she could observe from 50
feet away).
[*P66] Out-of-court experimentation by a juror is improper for
various reasons, including that the variables that might affect the
outcome are not known or controlled by the court or parties and
could differ from the facts in evidence. However, the passage of time
is a constant and is also a common experience of everyday life.
Therefore, the risks inherent in jurors conducting experiments are
not present when asking jurors to consider the passage of time as it
relates to the theory of the case. This court overrules Tucker's fifth
assignment of error.
State v. Tucker, supra.
Thus the only two instances of asserted prosecutorial misconduct that Tucker presented to
the state courts are the two he brought forward in his Petition. Because he did not present to the
state courts the four new instances of asserted misconduct he raises in his Reply, he has
procedurally defaulted those claims. Moreover, new claims cannot be added to a habeas case in
the reply. Jalowiec v. Bradshaw, 657 F.3d 293 (6th Cir. 2011), citing Tyler v. Mitchell, 416 F.3d
500, 504 (6th Cir. 2005).
Regarding the two claims that were raised both in the Twelfth District and in the Petition,
the Magistrate Judge concludes the Twelfth District’s decision is not an objectively unreasonable
application to clearly stablished Supreme Court precedent.
On habeas review, "the relevant question is whether the prosecutor's
comments 'so infected the trial with unfairness as to make the
conviction a denial of due process.'" Darden v. Wainwright, 477
U.S. 168, 181, 91 L. Ed. 2d 144, 106 S. Ct. 2464 (1986) (quoting
Donnelly v. DeChristoforo, 416 U.S. 637, 643, 40 L. Ed. 2d 431, 94
S. Ct. 1868 (1974)).
Bates v. Bell, 402 F.3d 635 (6th Cir. 2005). With both prosecutorial remarks objected to here, the
trial judge gave a curative instruction which the jury is presumed to have followed. Tucker raises
the usual argument that a bell once rung in front of the jury cannot be unrung, but both objected-
to remarks were argumentative and not the mentioning of inadmissible evidence. Tucker’s counsel
did not consider the result sufficiently prejudicial to move for a mistrial.
Although the Twelfth District did not cite Supreme Court case law in its decision, it did
cite to Ohio case law adopting the federal standard. Its decision is not an unreasonable application
of Supreme Court precedent and is therefore entitled to deference under 28 U.S.C. § 2254(d)(1).
Tucker’s Third Ground for Relief should be dismissed.
Conclusion
Based on the foregoing analysis, the Magistrate Judge respectfully recommends 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 29, 2021.
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, but service is complete when the document is mailed, not when it is recetved. 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. #
NOTICE REGARDING RECORD CITATIONS#
The attention of all parties is called to S. D. Ohio Civ. R. 7.2(b)(5) which provides:
(5) Pinpoint Citations. Except for Social Security cases, which
must comply with S.D. Ohio Civ. R. 8.1(d), all filings in this Court
that reference a prior filing must provide pinpoint citations to the
PageID number in the prior filing being referenced, along with a
brief title and the docket number (ECF No. or Doc. No. _) of
the document referenced.
The Court’s electronic filing system inserts in all filings hyperlinks to the place in the record which
has been cited following this Rule. However, as with most computer systems, the CM/ECF
program cannot read pinpoint citations which do not follow the Rule precisely. For example, the
first pinpoint citation in ODRC’s Reply reads “Plaintiff argues that he could not bring this action
until “administrative remedies as (sic) are exhausted (sic).” (Doc. 80, PageId# 987).” The correct
citation would have been Doc. No. 80, PageID 987.” Because Defendant added the “#” symbol,
the program failed to inset a hyperlink. Use of this software is mandated by the Judicial
Conference of the United States and cannot be locally modified. The parties are cautioned to
comply precisely with S. D. Ohio Civ. R. 7.2(b)(5) in any further filings.
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