# Drummond v. Houk

> District Court, N.D. Ohio · December 31, 2010 · 761 F. Supp. 2d 638

URL: https://www.frixlaw.com/law-library/cases/2474053

## Case

- **Full name:** John DRUMMOND, Petitioner, v. Marc HOUK, Respondent
- **Court:** District Court, N.D. Ohio
- **Decided:** December 31, 2010
- **Citations:** 761 F. Supp. 2d 638; 2010 U.S. Dist. LEXIS 137941; 2010 WL 5464172
- **Precedential status:** Published
- **Opinion:** Opinion by Lioi
- **Judges:** Sara Lioi
- **Cited by:** 7 later opinions in the Frix Law Library

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## Opinion text

MEMORANDUM OPINION
SARA LIOI, District Judge.
Petitioner, John Drummond (“Drummond” or “Petitioner”), has filed an Amended Petition for Writ of Habeas Corpus (“Amended Petition”) pursuant to 28 U.S.C. § 2254 . (ECF No. 45.) He challenges his convictions by a Mahoning County jury and the sentence of death recommended by the jury and adopted by the judge. In addition to reviewing Drummond’s petition, the Court has reviewed the Return of Writ
1
(ECF No. 49) filed by Respondent, Mark Houk (“Respondent”), Petitioner’s Traverse
2
(ECF No. 57), Respondent’s Sur-Reply (ECF No. 58), and Petitioner’s Sur-Sur-Reply (ECF No. 59).
For the reasons set forth below, Drummond’s Amended Petition for Writ of Habeas Corpus is GRANTED IN PART.
I. Factual Background
On April 3, 2003, Drummond was indicted by a Mahoning County grand jury, charging him with the following eight counts: (I) aggravated murder of Jiyen
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Dent Jr. with prior calculation and design; (2) aggravated murder of Jiyen Dent Jr., who was an individual under 13 years of age; (3) attempted murder of Jiyen Dent; (4) attempted murder of Latoya Butler; (5) attempt to cause bodily harm to Jiyen Dent through use of a deadly weapon; (6) attempt to cause bodily harm to Latoya Butler through use of a deadly weapon; (7) discharge of a firearm into an occupied structure; and (8) use of a firearm while under a disability. The two counts of aggravated murder each contained the following two death penalty specifications: (1) the aggravated murder was part of a course of conduct involving the killing or attempt to kill two or more persons; and (2) the aggravated murder that occurred involved the death of an individual under thirteen years of age. Ohio Rev.Code § 2929.04(A)(5) & (A)(9). Each count included a firearm specification. (ECF No. 34, App. Vol. I, at 35-39.) The trial court severed count eight from the other counts and subsequently dismissed it.
A jury trial on the remaining counts began with jury selection on January 12, 2004. (ECF No. 35, Trial Tr., Vol. 2, at 101.) The presentation of evidence began on February 2, 2004.
(Id.,
Vol. 12, at 2392.) The facts as stated by the Ohio Supreme Court are as follows:
The state presented several witnesses who testified at Drummond’s trial that Drummond and Brett Schroeder were members of the Lincoln Knolls Crips gang and considered themselves “original gangsters,” or “OGs.” Schroeder died from gunshot wounds in May 1998 in a death ruled a homicide. The perpetrator was convicted and is serving time in prison.
The Dent family, Jiyen Dent Sr., Latoya Butler, his girlfriend, and their son, Jiyen Dent Jr., had moved into a home at 74 Rutledge Drive in Youngstown around March 20, 1998. Dent did not know Drummond, Wayne Gilliam, or Schroeder.
In the early evening of the shooting, a few days after Dent moved in, ten to 20 people gathered for a party outside the home of Gail Miller on Duncan Avenue in Youngstown to drink and listen to music. Sometime that evening, Drummond and Gilliam arrived.
During the party, James “Cricket” Rozenblad overheard Drummond, Gilliam, and Andre Bryant talking about a “guy moving in in [their] neighborhood [who] could have had something to do with the death of Brett Schroeder.” Yaraldean Thomas also saw Drummond and Gilliam whispering to one another and heard Drummond say “It’s on” after they finished talking.
Drummond left the party and returned a short time later with an assault rifle. He and Gilliam then got into Gilliam’s burgundy Chevrolet Monte Carlo and drove down Duncan Lane toward Rutledge Drive. Approximately five to 15 minutes later, 11 shots were fired from an assault rifle into the Dent home. Within a few seconds, a 9 mm round was fired into the Dent home, and five 9 mm rounds were fired into the home of Diane Patrick, the Dents’ next-door neighbor, who lived at 76 Rutledge Drive.
At around 11:25 p.m. that evening, Dent was in the living room watching a movie, Butler was in the kitchen, and Jiyen was in a baby swing in the living room. While watching TV, Dent heard gunshots and saw “bullets start coming through the windows and the walls.” He then picked up the baby and ran down the hallway towards the bathroom. Dent fell in the hallway and noticed that Jiyen had been shot in the head. After making sure that his girlfriend was safe, Dent called 911.
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That same night, Rebecca Perez, who lived nearby on Rutledge Drive, heard two series of shots when taking her trash outside. She saw shots coming from the corner of Duncan Lane and Rutledge Drive and noticed “a shadow up the street.” Shortly thereafter, Perez saw a maroon car pull out of the driveway next to 65 Rutledge Drive, where Drummond lived. The car then drove without any headlights on past the Perez home. Approximately half an hour to 45 minutes later, Perez noticed that the maroon car had returned to the driveway next to Drummond’s home. At trial, Perez identified Gilliam’s Monte Carlo as the car she had seen that night.
Leonard Schroeder, the brother of Brett Schroeder, who had been killed nearly five years before, lived near Rutledge Drive. On the evening of March 24, Leonard heard a series of gunshots. Shortly afterwards, Drummond and Gilliam arrived at Leonard’s home in Gilliam’s car. Leonard asked Drummond about the shots, and Drummond said that he “didn’t know who it is. It was probably Cricket and Wany.” Gilliam said only that “some fools are shooting over there.”
Arriving police and paramedics found that Jiyen [Jr.] had been killed. Investigators secured the scene and began their investigation. Officer Kerry Wigley walked down Rutledge Drive, looking for shell casings, and noticed two men in the dark, leaning against a car parked in a driveway. Wigley intercepted the two men, asked for their identification, and identified them as Drummond and Gilliam.
State v. Drummond,
111 Ohio St.3d 14, 15-16 , 854 N.E.2d 1038 (2006).
At the conclusion of the proceedings, the jury convicted Drummond on all counts and specifications. (ECF No. 34, App. Vol. 2, at 95-112.) The penalty phase of the trial began on February 19, 2004. (ECF No. 35, Trial Tr„ Vol. 18, at 3723.) Drummond presented the testimony of five witnesses during the mitigation hearing: his mother, father, the mother of his twin children, a neighbor, and Dr. John Fabian, a clinical psychologist.. Additionally, Drummond made a brief, unsworn statement to the jury. Further facts will be set forth as necessary to resolve the claims raised in the Amended Petition.
II. Procedural History
A. Direct Appeal
Drummond filed a timely notice of appeal to the Ohio Supreme Court on April 8, 2004, challenging his convictions and sentence of death. (ECF No. 34, App. Vol. 3, at 5.) In a brief filed December 21, 2004, Drummond raised the following fourteen propositions of law:
1. Appellant was denied a fair trial when the trial court abused its discretion and overruled his motion in limine to exclude any trial evidence relating to other crimes, wrongs, or acts of appellant contrary to the protections of the Fifth and Sixth Amendments to the United States Constitution.
2. The trial court erred to the prejudice of appellant by prohibiting trial counsel from cross-examining appellee’s witnesses relative to their credibility and veracity involving pending criminal charges.
3. The trial court abused its discretion by overruling appellant’s motions to dismiss the death penalty specifications and denied him a fair trial, contrary to the protections of the Fifth and Fourteenth Amendments to the United States Constitution.
4. Appellant’s right to the effective assistance of counsel was violated when trial counsel’s performance was ex
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tremely deficient to appellant’s prejudice, in violation of U.S. Constitution, Amendment VI and Ohio Constitution, Article I, Section 10.
5. The trial court abused its discretion regarding contested evidence and witnesses during the trial, in violation of U.S. Constitution, Amendments V and VI and Ohio Constitution, Section 10.
6. Appellant was denied due process and a fair trial in violation of the United States and Ohio Constitutions when the trial court:
A. Failed to record and preserve all sidebar conferences on substantial and significant evidentiary and legal issues.
B. Repeatedly permitted leading questions by Appellee on direct examination.
C. Repeatedly permitted hearsay testimony and evidence by Appellee’s witnesses on direct examination.
7. The jury view as permitted by the court violated Appellant’s right to a fair trial and due process.
8. A criminal defendant’s due process right to a fair trial is violated when the prosecution engages in extensive, deliberate, misleading and prejudicial misconduct. U.S. Constitution, Amendment VI, XIV; Ohio Constitution, Article I, Section 14.
9. It is prejudicial error for a trial court to sentence Defendant to the death penalty, when, based upon the law and the record of this case, the sentence of death herein is inappropriate and is disproportionate to the penalty imposed in similar cases, in violation of Defendant’s rights as guaranteed to him by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 5, 9, 10, and 16 of Article One of the Ohio Constitution.
10. The proportionality review that this Court must conduct in the present capital case pursuant to Ohio Revised Code Section 2929.05 is fatally flawed and therefore the present death sentence must be vacated pursuant to the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution, Sections 5 and 10, Article I of the Ohio Constitution and Ohio Revised Code 2929.05, in violation of Defendant’s rights as guaranteed to him by the Fifth, Eighth, and Fourteenth Amendments to the U.S. Constitution and Sections 5, 9, 10, and 16 of Article One of the Ohio Constitution.
11. It is error for a trial court to impose a death sentence when the death penalty law as currently applied in Ohio violates R.C. 2929.05(A) by requiring appellate courts and the Supreme Court, in conducting their R.C. 2929.04(A) review of “similar cases” for proportionality, to examine only those cases in which a death sentence was imposed and ignore those in which a sentence of life with parole eligibility after twenty-five full years or life with parole eligibility after thirty full years was imposed. The current method also violated the rights to a fair trial and due process, results in cruel and unusual punishment, and implicates others of Appellant’s protected rights as well, all as set forth in the Fifth, Sixth, Eighth, Ninth and Fourteenth Amendments to the United States Constitution and in Sections 1, 2, 5, 9,10,16 and 20, Article I of the Ohio Constitution.
12. R.C. 2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04, and 2929.05 as read together and as applied in this case violate the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States
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Constitution and Sections 2, 9, 10, and 16 of Article I of the Ohio Constitution.
13. Ohio’s death penalty law is unconstitutional!.] Ohio Revised Code Ann.
&
2903.01, 2929.02, 2929.021, 2929.022, 2929.023, 2929.03, 2929.04, and 2929.05, do not meet the prescribed constitutional requirements and are unconstitutional on their face and as applied to Appellant. U.S. Const. Amends. V, VI, VIII, XIV, Ohio Const. Art. I, Sections 2, 9, 10, 16, further, Ohio’s death penalty statute violates the United States’ obligations under international law.
14. The trial court denied Appellant due process under the Fourteenth Amendment due to the fact his conviction for aggravated murder with specifications was against the manifest weight of the evidence and the jury’s verdict was inconsistent with the evidence and testimony presented at trial.
(ECF No. 34, App. Vol. 3, at 44-47.) On November 4, 2005, the Ohio Supreme Court
sua sponte
asked the parties to file additional briefs addressing two specific issues:
1. Was the appellant denied his Sixth Amendment right to a public trial when the trial court closed the courtroom to spectators on February 4 and February 5, 2004?
2. What is the appropriate remedy should this Court find that the trial court erred in ordering the courtroom closed?
(ECF No. 34, App. Vol. 3, at 219.) Drummond filed his supplemental brief addressing these issues. (ECF No. 34, App. Vol. 3, at 235.) The Ohio Supreme Court affirmed the convictions and sentences, including the sentence of death, on October 18, 2006.
State v. Drummond,
111 Ohio St.3d 14 , 854 N.E.2d 1038 (2006).
B. Post-conviction Proceedings
Drummond filed a petition for post-conviction relief on January 28, 2005. He asserted the following 21 grounds for relief:
1. Drummond’s convictions and sentence are void or voidable because he was denied effective assistance of counsel during his capital trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and
Strickland v. Washington,
466 U.S. 668 , 104 S.Ct. 2052 , 80 L.Ed.2d 674 (1984). Drummond’s attorneys failed to use the ballistics and firearms reports of a key state’s forensic witness to support the defense’s case at trial.
2. Drummond’s convictions and sentence are void or voidable because he was denied effective assistance of counsel during his capital trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and
Strickland v. Washington,
466 U.S. 668 [, 104 S.Ct. 2052 , 80 L.Ed.2d 674 ] (1984). Defense counsel failed to cross-examine Chappell on why he included a 30-06 bolt-action rifle as “a possible source weapon” in his report.
3. Drummond’s convictions and sentence are void and/or voidable because he was denied effective assistance of counsel during his capital trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and
Strickland v. Washington,
466 U.S. 668 [, 104 S.Ct. 2052 , 80 L.Ed.2d 674 ] (1984). Counsel’s failure to investigate and use Carlini’s ballistics report was unreasonable and prejudicial. Their failure allowed the jury to believe that Drummond was responsible for the fatal shot.
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4. Drummond’s convictions and sentence are void and/or voidable because he was denied effective assistance of counsel during his capital trial as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution and
Strickland v. Washington,
466 U.S. 668 [, 104 S.Ct. 2052 , 80 L.Ed.2d 674 ] (1984). Drummond’s trial counsel failed to investigate Jiyen Dent Sr. and his gang affiliations. They also failed to use an audio expert to analyze the critical 9-1-1 tape.
5. The death sentence imposed on Drummond is void or voidable because he did not receive effective assistance of counsel during the penalty phase of his capital trial. Defense counsel’s failure to present available and relevant mitigating evidence from a qualified gang expert prejudiced Drummond.
6. The death sentence imposed on Drummond is void or voidable because he did not receive effective assistance of counsel during the penalty phase of his capital trial. Defense counsel’s failure to present available, relevant, and compelling mitigating evidence to the jury prejudiced Drummond.
7. The death sentence imposed on John Drummond is void or voidable because he did not receive effective assistance of counsel during the penalty phase of his capital trial. Drummond’s attorneys unreasonably delayed their mitigation investigation and failed to properly prepare their expert witness. As a result, jurors did not have relevant, compelling mitigating evidence to weigh and give effect.
8. The death sentence imposed on John Drummond is void or voidable because he did not receive effective assistance -of counsel during the penalty phase of his capital trial. Defense counsel’s failure to present available, relevant, and compelling mitigating evidence to the jury prejudiced Drummond. At Drummond’s trial, defense counsel failed to investigate, prepare, and present mitigating evidence regarding Drummond’s character, history, and background — namely, the dysfunction in his family. This available evidence would have humanized John Drummond and provided the jurors with reasons to spare his life.
9. At Drummond’s trial, defense counsel failed to investigate, prepare, and present mitigating evidence regarding Drummond’s character, history, and background. This available evidence would have humanized John Drummond and provided jurors with reasons to spare his life. Defense counsel failed to present personal firsthand accounts of the environment in which John Drummond lived.
10. At Drummond’s trial, defense counsel failed to investigate, prepare, and present mitigating evidence regarding the negative influences that abounded within Drummond’s family. This evidence would have humanized John Drummond and would have provided his jurors with reasons to spare his life. Drummond was prejudiced by his counsel’s ineffectiveness. A sound mitigation theory cannot be developed unless counsel conducts a reasonable, competent investigation and carefully considers all available evidence.
See Powell v. Collins,
328 F.3d 268 (6th Cir.2003).
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11. At Drummond’s trial, defense counsel failed to investigate, prepare, and present mitigating evidence regarding Drummond’s character, history, and background. This kind of evidence includes his family background. The evidence available, but not investigated by counsel, would have shown the jury that Drummond’s father was not a proper adult male role model.
12. At Drummond’s trial, defense counsel failed to investigate, prepare, and present mitigating evidence regarding Drummond’s character, history, and background — namely the amputation of his leg when he was sixteen years old.
13. At Drummond’s trial, defense counsel failed to investigate, prepare, and present mitigating evidence regarding Drummond’s character, history, and background. Counsel also failed to object to the prosecutor’s improper mitigation-phase closing argument.
14. Drummond’s convictions and sentence are void or voidable because he did not receive his Sixth Amendment right to effective assistance of counsel at his capital trial. Defense counsel’s failure to investigate left the defense unprepared to rebut the state’s case.
15. Drummond’s convictions and sentence are void or voidable because he did not receive his Sixth Amendment right to effective assistance of counsel at his capital trial. At trial, the state called a neighbor, Wanda Greer, to testify against Drummond. Mrs. Greer’s testimony recounted the party at Dean Thomas’s house on the evening of the shootings. She said that she heard gunshots and that she saw Wayne Gilliam’s car driving back and forth. (T.p. 2607, 2612, 2615) The state also elicited testimony from Mrs. Greer about gang activity in the neighborhood. (T.p. 2617, 2619-20)
16. Drummond had Sixteenth and Fourteenth Amendment rights to a fair trial and due process. The trial judge had an obligation to enforce those rights. But the judge in Drummond’s case entered the proceedings with preconceived notions that tainted Drummond’s capital trial. The judge’s bias violated Drummond’s right to have a fair trial presided over by an impartial judge.
17. The death penalty scheme does not work. Jurors neither understand the law nor apply it when deciding capital cases. In Drummond’s case, members of his jury either misunderstood or completely disregarded the trial court’s instructions, resulting in a death sentence that is void or voidable. Drummond’s case is an example of a capital trial system that is defective. Drummond’s rights under the United States Constitution’s Fifth, Sixth, Eighth, and Fourteenth Amendments were violated, and he was prejudiced.
18. Drummond’s Sixth, Eighth, and Fourteenth Amendment rights to a fair trial and reliable sentence were violated when members of his jury failed to follow the trial court’s instructions of law. Under Ohio’s death penalty scheme, the jury is instructed to weigh aggravating circumstances against mitigating factors. R.C. 2929.04(B). The judge specifically instructed the jurors: “Only the aggravating circumstances may be considered and
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weighed against the mitigating factors in determining the penalty.” (T.p. 3915) The judge then listed the two indicted statutory aggravating circumstances. (T.p. 3915-16) She went on to instruct the jury: “You may only consider the aggravating circumstances that were just described to you and which accompanied the aggravated murder.” (T.p. 8916) The jury failed to follow these instructions, and Drummond was prejudiced.
19. Drummond’s constitutional right to due process was violated when he was not informed of, and thus not present for, a court proceeding at his capital trial. Drummond states in an affidavit that he did not waive his presence at any court hearings or trial proceedings. (Ex. 24) Yet, the court announced that “John Drummond waived his right to be present during the discussion of the exhibits.” (T.p. 3545) If, as the record seems to reflect, Drummond’s attorneys told the court that their client waived his presence, they did so without his knowledge and consent.
20. The judgment and sentence against Drummond are void or voidable because the death penalty as administered by lethal injection in the state . of Ohio violates his constitutional right to protection from cruel and unusual punishment and to due process of law. U.S. Const. amends. VIII, XIV; Ohio Const. art. I §§ 9, 10, 16;
Ohio Adult Parole Authority v. Woodard,
523 U.S. 272 [, 118 S.Ct. 1244 , 140 L.Ed.2d 387 ] (1998) (five justices holding that the Due Process Clause protects the “life” interest at issue in capital cases.).
21. Drummond’s judgment and sentence are void or voidable because, assuming
arguendo
that none of the grounds for relief in his post-conviction petition individually warrant the relief sought from this court, the cumulative effects of the errors and omissions presented in the petition’s foregoing paragraphs have been prejudicial and have denied Drummond his rights secured by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution, and Article I, Sections 1, 2, 5, 9, 10, 16, and 20 of the Ohio Constitution.
(ECF No. 34, App. Vol. 5, at 35-99.) On February 14, 2006, the trial court granted the State’s motion for summary judgment. Drummond filed a timely notice of appeal with the Seventh District Court of Appeals. He raised the following four assignments of error:
1. The trial court erred by dismissing Appellant’s postconviction petition, where he presented sufficient operative facts and supporting exhibits to merit an evidentiary hearing and discovery.
2. The trial court erred by failing to rule on Appellant’s motion for voluntary recusal of the trial judge and then dismissing the postconviction petition without a hearing, thus tainting the postconviction process.
3. Ohio’s postconviction procedures neither afford an adequate corrective process nor comply with due process and equal protection under the Fourteenth Amendment.
4. Considered together, the cumulative errors set forth in Appellant’s substantive grounds for relief merit reversal and remand for a proper post-conviction process.
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(ECF No. 34, App. Vol. 8, at 41-42.) On December 20, 2006, the Ohio court of appeals affirmed the trial court’s disposition of the post-conviction petition.
State v. Drummond,
No. 05 MA 197, 2006 WL 3849295 (Ohio Ct.App. Dec. 20, 2006). Thereafter, the Ohio Supreme Court declined to accept Drummond’s appeal for review.
State v. Drummond,
113 Ohio St.3d 1512 , 866 N.E.2d 512 (Table) (2007).
C. Application to Reopen Direct Appeal/ Supreme Court Practice Rule XI
3
Drummond filed a timely application to reopen his direct appeal (“application to reopen” or
“Murnahan
appeal”) with the Ohio Supreme Court on January 16, 2007. He alleged that his appellate counsel had been ineffective for failing to raise the following four propositions of law, as alleged below:
1. Appellant’s Sixth Amendment right to effective assistance of counsel was violated when his defense attorneys failed to devote sufficient time to preparing for trial; failed to maintain the attorney-client relationship; failed to object to prosecutorial misconduct; failed to object when the trial court vouched for a state’s witness with inappropriate humor; failed to object when the trial court demeaned the proceedings with inappropriate humor; failed to object to or move to strike speculative answers and a state witness’s prejudicial answer regarding remorse; failed to prepare their penalty-phase expert witness; and failed to prepare and present relevant mitigating evidence. U.S. Const. amends. VI, VIII, XIV; Ohio Const. Art. I, §§ 10, 16.
2. The trial court violated Appellant’s Sixth and Fourteenth Amendment rights to a fair trial and due process when it admitted prejudicial photographs during the trial; demeaned the proceedings by using inappropriate humor during trial; improperly vouched for a state witness by using inappropriate humor; failed to grant defense counsel’s objection to a prejudicial identification of an audience member; failed to grant defense counsel’s objection to improper evidence of the defendant’s alleged lack of remorse; and made rulings that prejudiced the defense. U.S. Const. amends. VI, XIV; Ohio Const. Art. I, §§ 10, 16.
3. A capital defendant is denied substantive and procedural due process rights to a fair trial and a reliable sentence when the prosecutor commits acts of misconduct during the capital trial. U.S. Const. Amends. VI, VIII, XIV; Ohio Const. Art. I, §§ 9, 10, 16.
4. The cumulative effect of the errors at trial renders a capital defendant’s trial unfair and his sentence arbitrary and unreliable. U.S. Const. amends. VI, XIV; Ohio Const. Art. I, §§ 9, 16.
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(ECF No. 34, App. Vol. 4, at 7-8.) The Ohio Supreme Court denied Drummond’s application on April 18, 2007.
State v. Drummond,
113 Ohio St.3d 1463 , 864 N.E.2d 651 (Table) (2007). With this decision, Drummond’s state court appeals concluded.
III. Federal Habeas Corpus Proceeding
Drummond filed a notice of intent to file a habeas corpus petition on June 15, 2007. (ECF No. 1.) Although the Court initially appointed counsel to represent Drummond, appointed counsel filed a Motion to Withdraw as Attorney and Request for New Counsel on September 12, 2007. (ECF No. 13.) The Court initially denied the request but later reconsidered its decision, allowing Drummond fourteen (14) days to decide whether he wished to retain his current counsel or request that the Court appoint new counsel. (ECF No. 19.) Drummond indicated that he wished to be represented by new counsel. (ECF No. 23.) The Court granted Drummond’s request and, on November 16, 2007, appointed Timothy C. Ivey of the Office of the Federal Public Defender (“FPD”) and David L. Doughten to represent him. (ECF No. 28.)
4
New counsel sought and obtained permission to file an Amended Petition, which they subsequently filed on May 5, 2008. (ECF No. 45.)
Drummond also requested discovery, which the Court denied in part and granted in part. Specifically, the Court permitted Drummond to obtain a ballistics expert to examine the trajectory of the bullets that caused the murder. The Court also permitted habeas counsel to depose defense psychologist Dr. John Fabian and trial counsel James Gentile and Ron Yarwood. (ECF No. 42.) Additionally, the Court granted Drummond’s motion to unseal state court records. (ECF No. 46.) Drummond also made three requests to expand the record pursuant to Habeas Rule 7, to include materials he had obtained during discovery. (ECF Nos. 53, 55, 56.) On October 16, 2008, in three non-document orders, the Court granted each request.
Respondent filed his Return of Writ on July 7, 2008. (ECF No. 49.) After requesting and receiving permission for an extension of time, Drummond filed a Traverse on September 22, 2008. (ECF No. 57.) Respondent thereafter filed a SurReply (ECF No. 58), to which Drummond filed a Sur-Sur-Reply (ECF No. 59).
In the Amended Petition, Drummond raises the following 13 grounds for relief:
5
1. The trial court violated Drummond’s right to a public trial under the Sixth and Fourteenth Amendments when, without adequate grounds, the judge closed the courtroom, denying the public access to the trial. (Denial of Public Courtroom)
2. Trial court error deprived Drummond of his rights to confront and cross-examine witnesses, to due process, and a fair trial under the Sixth and Fourteenth Amendments. (Confrontation Violation)
3. Drummond’s constitutional rights to due process and a fair trial were violated when the trial court permitted the introduction of highly prejudicial evidence relating to
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gangs and weapons unrelated to the charged crimes. (Trial Violated Due Process)
4. The [Petitioner’s] convictions and sentence of death are void or voidable as the trial court violated the [Petitioner’s] rights under the Fifth, Sixth, Eighth and Fourteenth Amendments to the United States Constitution by failing to excuse jurors for cause who had indicated that they could not be fair and impartial and the improper dismissal of a juror for cause [who] said he could be fair and impartial. (Improper Juror Dismissal Rulings)
5. The evidence used to support Drummond’s convictions and sentence is insufficient under the Sixth and Fourteenth Amendments. (Actual Innocence-Sufficiency of Evidence)
6. The trial court violates a capital defendant’s rights to a fair trial and due process when, as in Drummond’s case, the judge manifests the appearance of bias against the defendant, in violation of the Sixth and Fourteenth Amendments to the United States Constitution. (Manifested Judicial Bias)
7. Trial counsel violated Drummond’s Sixth Amendment right to effective assistance of counsel when they failed to reasonably investigate the case, use available evidence to present a defense, and advocate on their client’s behalf. (Culpability Phase IAC [Ineffective Assistance of Counsel])
8. Trial counsel violated Drummond’s Sixth Amendment right to effective assistance of counsel at the penalty phase when they failed to make a timely and reasonable investigation of his character, history, and background. Counsel’s mitigation presentation was deficient and deprived the jurors of evidence that was worthy of weight and effect. (Penalty Phase IAC [Ineffective Assistance of Counsel])
9. Drummond was denied his right to effective assistance of counsel in his direct appeal to the Ohio Supreme Court, in violation of the Sixth and Fourteenth Amendments to the United States Constitution. (Ineffective Assistance of Counsel-Direct Appeal)
10. The prosecutors committed acts of misconduct during the capital trial, violating Drummond’s substantive and procedural due process rights to a fair trial and reliable sentence under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution. (Misconduct of Prosecutor)
11. The Ohio Supreme Court’s arbitrary refusal to review life sentences imposed in similar cases as part of the statutorily mandated proportionality review denied Drummond due process of law guaranteed by the Fourteenth Amendment. (Proportionality)
12. Petitioner Drummond’s convictions and death sentence are invalid because the cumulative effect of the constitutional errors set forth in this Habeas Corpus Petition violated his rights under the Fifth, Sixth, Eighth, and Fourteenth Amendments. (Cumulative Error)
13. [The] Ohio statutory scheme for the implementation of the death penalty is unconstitutional. (Constitutional Challenge)
(ECF No. 45,
passim.)
Upon reviewing the parties’ briefs, on January 26, 2010, the Court issued an Or
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der to Show Cause (ECF No. 61) wherein the Court required Respondent to show cause why the Court should not hold an evidentiary hearing on Drummond’s claim of ineffective assistance of counsel during the mitigation, or penalty, phase of the trial. Drummond asserted in the Amended Petition that trial counsel provided Dr. Fabian, the defense expert, with insufficient time and records to present a constitutionally adequate representation during the penalty phase of his trial.
The depositions of Dr. Fabian and trial counsel Gentile and Yarwood presented competing pictures of the defense team’s mitigation investigation and preparation. While both parties conceded that Dr. Fabian did not perform well during his mitigation testimony, Dr. Fabian faulted counsel for his failures. He maintained that counsel did not provide him with adequate time to prepare, did not obtain a gang expert despite his request for one, and failed to provide him with information regarding Drummond’s half-brother, Michael Brooks.
Trial counsel disputed most of Dr. Fabian’s allegations. First, counsel claimed that Dr. Fabian indicated he could testify about Drummond’s involvement with gangs. Counsel also disputed that Dr. Fabian ever asked them for additional time to prepare for his testimony. Counsel also were unaware of any documents or information that Dr. Fabian believed he lacked, including information regarding Michael Brooks. The Court therefore issued the Order to Show Cause for Respondent to explain why an evidentiary hearing was not necessary to resolve these factual disputes.
When neither party articulated a reason why the Court should not hold a hearing, the Court set a hearing date for May 20, 2010. (ECF No. 66.) After habeas counsel requested and received two continuances, the Court re-set the evidentiary hearing for July 19 and 20, 2010. (ECF No. 75.) Thereafter, the parties filed a Joint Motion to Clarify Scope of Evidentiary Hearing. (ECF No. 83.) Habeas counsel argued that Drummond’s family members should be permitted to testify to demonstrate the prejudice necessary to establish an ineffective assistance claim. Conversely, Respondent believed that the purpose of holding an evidentiary hearing was to resolve the factual disputes between Dr. Fabian and Petitioner’s trial counsel, and the hearing therefore should be limited to their testimony alone. The Court determined that it would allow the testimony of Drummond’s family members, if only to obviate the need for it at some later date and to create a full record for appellate purposes. (ECF No. 85.) Thereafter, the Court held the evidentiary hearing. The pertinent testimony and outcome of this evidentiary hearing is discussed below under Section VI(H), which addresses Petitioner’s Eighth Ground for Relief.
IV. Standard of Review
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”), which amended 28 U.S.C. § 2254 , was signed into law on April 24, 1996. In
Lindh v. Murphy,
521 U.S. 320, 336 , 117 S.Ct. 2059 , 138 L.Ed.2d 481 (1997), the Supreme Court held that the provisions of AEDPA apply to habeas corpus petitions filed after that effective date.
See also Woodford v. Garceau,
538 U.S. 202, 210 , 123 S.Ct. 1398 , 155 L.Ed.2d 363 (2003);
Barker v. Yukins,
199 F.3d 867, 871 (6th Cir.1999) (“It is now well settled that AEDPA applies to all habeas petitions filed on or after its April 24, 1996 effective date.”). Because Drummond’s petition was filed on October 12, 2007, AEDPA governs this Court’s consideration of his petition.
AEDPA was enacted “to reduce delays in the execution of state and federal
*661
criminal sentences, particularly in capital cases, and ‘to further the principles of comity, finality, and federalism.’ ”
Woodford,
538 U.S. at 206 , 123 S.Ct. 1398 (quoting
Williams v. Taylor,
529 U.S. 420, 436 , 120 S.Ct. 1479 , 146 L.Ed.2d 435 (2000)). The requirements of AEDPA “create an independent, high standard to be met before a federal court may issue a writ of habeas corpus to set aside state-court rulings.”
Uttecht v. Brown,
551 U.S. 1, 10 , 127 S.Ct. 2218 , 167 L.Ed.2d 1014 (2007) (citations omitted). Section 2254(d) provides:
An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254 (d). This legal standard establishes a multi-faceted analysis involving a consideration of both the state court’s statement and/or application of federal law and its finding of facts.
With respect to Section 2254(d)(1), “clearly established federal law” refers to the holdings, as opposed to
dicta,
of the Supreme Court’s decisions as of the time of the relevant state-court decision.
Williams,
529 U.S. at 412 , 120 S.Ct. 1495 ;
Barnes v. Elo,
231 F.3d 1025, 1028 (6th Cir.2000). The “contrary to” and “unreasonable application” clauses of Section 2254(d)(1) are independent tests and must be analyzed separately.
Williams,
529 U.S. at 412-13, 120 S.Ct. 1495 ;
Hill v. Hofbauer,
337 F.3d 706, 711 (6th Cir.2003). A state court decision is “contrary to” federal law only “if the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts.”
Williams,
529 U.S. at 412-13, 120 S.Ct. 1495 .
Even if the state court identifies the “correct governing legal principle,” a federal habeas court may still grant the petition if the state court makes an “unreasonable application” of “that principle to the facts of the particular state prisoner’s case.”
Williams,
529 U.S. at 413, 120 S.Ct. 1495 . A state court decision also involves an unreasonable application if it unreasonably extends a legal principle from Supreme Court precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply.
Hill,
337 F.3d at 711 (citing
Williams,
529 U.S. at 407, 120 S.Ct. 1495 ). As the Supreme Court has advised, “[t]he question under AEDPA is not whether a federal court believes the state court’s determination was incorrect but whether that determination was unreasonable — a substantially higher threshold.”
Schriro v. Landrigan,
550 U.S. 465, 473 , 127 S.Ct. 1933 , 167 L.Ed.2d 836 (2007) (citing
Williams,
529 U.S. at 410, 120 S.Ct. 1495 ). The reasonableness of the application of a particular legal principle depends in part on the specificity of the relevant rule.
Yarborough v. Alvarado,
541 U.S. 652, 664 , 124 S.Ct. 2140 , 158 L.Ed.2d 938 (2004). While the application of specific rules may be plainly correct or incorrect, courts may have more leeway in reason
*662
ably applying more general rules in the context of a particular case.
Id.
As to the “unreasonable determination of the facts” clause in Section 2254(d)(2), the Supreme Court’s application of that section in
Wiggins v. Smith,
539 U.S. 510 , 123 S.Ct. 2527 , 156 L.Ed.2d 471 (2003), provides guidance. In
Wiggins ,
the Court noted that a “clear factual error,” such as making factual findings regarding the contents of social service records contrary to “clear and convincing evidence” presented by the defendant, constitutes an “unreasonable determination of the facts in light of the evidence presented.”
Id.
at 528-29 , 123 S.Ct. 2527 . In other words, a state court’s determination of facts is unreasonable under Section 2254(d)(2) if its findings conflict with clear and convincing evidence to the contrary. This analysis mirrors the “presumption of correctness” afforded factual determinations made by a state court which can only be overcome by clear and convincing evidence.
See
28 U.S.C. § 2254 (e)(1);
Mitchell v. Mason,
325 F.3d 732, 737-38 (6th Cir.2003);
Clark v. O’Dea,
257 F.3d 498, 506 (6th Cir.2001) (“[RJegardless of whether we would reach a different conclusion were we reviewing the case
de novo,
the findings of the state court must be upheld unless there is clear and convincing evidence to the contrary.”). This presumption only applies to basic, primary facts, and not to mixed questions of law and fact.
See Mitchell,
325 F.3d at 737-38 (holding ineffective assistance of counsel is mixed question of law and fact to which the unreasonable application prong of Section 2254(d)(1) applies).
By its express terms, however, Section 2254(d)’s constrained standard of review only applies to claims that were adjudicated on the merits in the state court proceeding.
See Clinkscale v. Carter,
375 F.3d 430, 436 (6th Cir.2004). When a state court does not assess the merits of a petitioner’s habeas claim, the deference due under AEDPA does not apply. In such a case, the habeas court is not limited to deciding whether the state court’s decision was contrary to or involved an unreasonable application of clearly established federal law, but rather conducts a
de novo
review of the claim.
See Morales v. Mitchell,
507 F.3d 916, 929 (6th Cir.2007) (citations omitted);
Newton v. Million,
349 F.3d 873, 878 (6th Cir.2003);
Maples v. Stegall,
340 F.3d 433, 436 (6th Cir.2003). However, if the state court conducts a harmless error analysis but does not indicate whether its finding is based on state or federal constitutional law, a habeas court, while conducting an independent review of the facts and applicable law, must nonetheless determine “whether the state court result is contrary to or unreasonably applies clearly established federal law.”
Maldonado v. Wilson,
416 F.3d 470, 476 (6th Cir.2005) (citing
Harris v. Stovall,
212 F.3d 940, 943 (6th Cir.2000)).
V. Exhaustion and Procedural Default
A. Exhaustion
A state prisoner must exhaust his state remedies before bringing his claim in a federal habeas corpus proceeding. 28 U.S.C. § 2254 (b), (c);
see Rose v. Lundy,
455 U.S. 509, 522 , 102 S.Ct. 1198 , 71 L.Ed.2d 379 (1982). Exhaustion is fulfilled once a convicted defendant seeks review of his or her claims on the merits from a state supreme court.
O’Sullivan v. Boerckel,
526 U.S. 838, 845 , 119 S.Ct. 1728 , 144 L.Ed.2d 1 (1999). A habeas petitioner satisfies the exhaustion requirement when the highest court in the state in which the petitioner has been convicted has had a full and fair opportunity to rule on the claims.
Rust v. Zent,
17 F.3d 155, 160 (6th Cir.1994) (citing
Manning v. Alexander,
912
*663
F.2d 878, 881 (6th Cir.1990)). If, under state law, there remains a remedy that a petitioner has not yet pursued, exhaustion has not occurred, and the federal habeas court cannot entertain the merits of the claim.
See id.
6
A petitioner “ ‘cannot obtain federal habeas relief under 28 U.S.C. § 2254 unless he has completely exhausted his available state court remedies to the state’s highest court.’ ”
Buell v. Mitchell,
274 F.3d 337, 349 (6th Cir.2001) (quoting
Coleman v. Mitchell,
244 F.3d 533, 538 (6th Cir.2001)). Rather than dismiss certain claims the court deems unexhausted, however, a habeas court need not wait for exhaustion if it determines that a return to state court would be futile.
See Lott v. Coyle,
261 F.3d 594, 608 (6th Cir.2001). In circumstances where the petitioner has failed to present a claim in state court, a habeas court may deem that claim procedurally defaulted because the Ohio state courts would no longer entertain the claim.
See Buell,
274 F.3d at 349 . To obtain a merit review of the claim, the petitioner must demonstrate cause and prejudice to excuse his failure to raise the claim in state court, or that a miscarriage of justice would occur were the habeas court to refuse to address the claim on its merits.
Seymour v. Walker,
224 F.3d 542, 550 (6th Cir.2000) (citing
Wainwright v. Sykes,
433 U.S. 72, 87 , 97 S.Ct. 2497 , 53 L.Ed.2d 594 (1977)).
B. Procedural Default
In general, a federal court may not consider “contentions of federal law which are not resolved on the merits in the state proceeding due to petitioner’s failure to raise them as required by state procedure.”
Sykes,
433 U.S. at 87 , 97 S.Ct. 2497 . If a “state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.”
Coleman v. Thompson,
501 U.S. 722, 750 , 111 S.Ct. 2546 , 115 L.Ed.2d 640 (1991). To be independent, a state procedural rule and the state courts’ application of it “must rely in no part on federal law.”
Fautenberry v. Mitchell,
No. C-1-00-332, 2001 WL 1763438 , at *24 (S.D.Ohio Dec. 26, 2001) (citing
Coleman,
501 U.S. at 732-733 , 111 S.Ct. 2546 ). To be adequate, a state procedural rule must be “ ‘firmly established and regularly followed’ ” by the state courts at the time it was applied.
Beard v. Kindler,
- U.S. -, 130 S.Ct. 612, 618 , 175 L.Ed.2d 417 (2009) (quoting
Lee v. Kemna,
534 U.S. 362, 375 , 122 S.Ct. 877 , 151 L.Ed.2d 820 (2002)). If a petitioner failed to timely present any federal habeas claims to the state courts but has no remaining state remedies, then the petitioner has procedurally defaulted those claims.
See Boerckel,
526 U.S. at 848 , 119 S.Ct. 1728 ;
Rust,
17 F.3d at 160 .
In
Maupin v. Smith, 785
F.2d 135 (6th Cir.1986), the Sixth Circuit outlined the now familiar test to be followed when the State argues that a habeas claim is defaulted because of a prisoner’s failure to observe a state procedural rule. The Circuit later summarized the
Maupin
four-part test as follows:
First, the federal court must determine whether there is a state procedural rule that is applicable to the petitioner’s claim and whether the petitioner failed
*664
to comply with that rule. Second, the federal court must determine whether the state courts actually enforced the state procedural sanction — that is, whether the state courts actually based their decisions on the procedural rule. Third, the federal court must consider whether the state procedural rule is an adequate and independent state ground on which the state can rely to foreclose federal review of a federal constitutional claim. [¶]... ] Fourth, if the federal court answers the first three questions in the affirmative, it would not review the petitioner’s procedurally defaulted claim unless the petitioner can show cause for not following the procedural rule and that failure to review the claim would result in prejudice or a miscarriage of justice.
Williams v. Coyle,
260 F.3d 684, 693 (6th Cir.2001) (citing
Maupin,
785 F.2d at 138 ) (further citations omitted).
In determining whether the
Maupin
factors are met, the federal court looks to the “last explained state-court judgment.”
Ylst v. Nunnemaker,
501 U.S. 797, 805 , 111 S.Ct. 2590 , 115 L.Ed.2d 706 (1991);
Combs v. Coyle,
205 F.3d 269, 275 (6th Cir.2000). “ ‘[A] procedural default does not bar consideration of a federal claim on habeas corpus review unless the last state court rendering a reasoned opinion in the case clearly and expressly states that its judgment rests on a state procedural bar.’ ”
Morales,
507 F.3d at 937 (quoting
Frazier v. Huffman,
343 F.3d 780, 791 (6th Cir.2003)). Conversely, if the last state court to be presented with a particular federal claim reaches the merits, then the procedural bar is removed and a federal habeas court may consider the merits of the claim in its review.
See Ylst,
501 U.S. at 801 , 111 S.Ct. 2590 .
If the first three
Maupin
factors are met, the claim is procedurally defaulted. However, the federal court may excuse the default and consider the claim on the merits if the petitioner demonstrates that (1) there was cause for him not to follow the procedural rule and that he was actually prejudiced by the alleged constitutional error, or (2) a fundamental miscarriage of justice would result from a bar on federal habeas review.
See Maupin,
785 F.2d at 138 ;
Hutchison v. Bell,
303 F.3d 720, 735 (6th Cir.2002);
Combs,
205 F.3d at 274 -275 (citing
Coleman,
501 U.S. at 750 , 111 S.Ct. 2546 ).
A petitioner can establish cause in two ways. First, a petitioner may “show that some objective factor external to the defense impeded counsel’s efforts to comply with the State’s procedural rule.”
Murray v. Carrier,
477 U.S. 478, 488 , 106 S.Ct. 2639 , 91 L.Ed.2d 397 (1986);
Mohn v. Bock,
208 F.Supp.2d 796, 801 (E.D.Mich.2002). Objective impediments include an unavailable claim or interference by officials that made compliance impracticable.
Murray, 477
U.S. at 488, 106 S.Ct. 2639 ;
Mohn,
208 F.Supp.2d at 801 . Second, constitutionally ineffective assistance of counsel constitutes cause.
Murray, 477
U.S. at 488-89, 106 S.Ct. 2639 ;
Rust,
17 F.3d at 161 ;
Mohn,
208 F.Supp.2d at 804-05 .
If a petitioner asserts ineffective assistance of counsel as cause for a default, that ineffective assistance claim must itself be presented to the state courts as an independent claim before it may be used to establish cause.
Murray, 477
U.S. at 488-489, 106 S.Ct. 2639 . If the ineffective assistance claim is not presented to the state courts in the manner that state law requires, that claim is itself procedurally defaulted and can only be used as cause for the underlying defaulted claim if the petitioner demonstrates cause and prejudice with respect to the ineffective assistance claim.
Edwards v. Carpenter,
529 U.S. 446, 452-53 , 120 S.Ct. 1587 , 146 L.Ed.2d 518 (2000).
*665
To establish prejudice, a petitioner must demonstrate that the constitutional error “ ‘worked to his
actual
and substantial disadvantage.’ ”
Perkins v. LeCureux,
58 F.3d 214, 219 (6th Cir.1995) (quoting
United States v. Frady,
456 U.S. 152, 170 , 102 S.Ct. 1584 , 71 L.Ed.2d 816 (1982) (emphasis in original)). “When a petitioner fails to establish cause to excuse a procedural default, a court does not need to address the issue of prejudice.”
Simpson v. Jones,
238 F.3d 399, 409 (6th Cir.2000) (citations omitted).
Because “the cause and prejudice standard is not a perfect safeguard against fundamental miscarriages of justice,” the Supreme Court has recognized “a narrow exception to the cause requirement where a constitutional violation has ‘probably resulted’ in the conviction of one who is ‘actually innocent’ of the substantive offense.”
Dretke v. Haley,
541 U.S. 386, 392 , 124 S.Ct. 1847 , 158 L.Ed.2d 659 (2004) (quoting
Murray v. Carrier,
477 U.S. at 495-96 , 106 S.Ct. 2639 ). When the Supreme Court extended this exception to claims of capital sentencing error, it limited the exception in the capital sentencing context to cases in which the petitioner could show “ ‘by clear and convincing evidence that, but for constitutional error, no reasonable juror would have found the petitioner eligible for the death penalty under the applicable state law.’ ”
Id.
(quoting
Sawyer v. Whitley,
505 U.S. 333, 336 , 112 S.Ct. 2514 , 120 L.Ed.2d 269 (1992)).
VI. Analysis of Grounds for Relief
A. First Ground for Relief — Denial of Public Courtroom
Drummond asserts that his Sixth Amendment right to a public trial was violated when the trial court closed the courtroom for portions of his trial on February 4 and February 5. This issue was addressed by the Ohio Supreme Court on direct appeal and, therefore, this Court may review this ground for habeas relief.
1. Factual Background and Procedural History
On February 4, 2004, the direct examination of James “Cricket” Rozenblad during Drummond’s trial took place. (ECF. No. 35, Trial Tr. Vol. 14 at 2933-2951.) At the start, Rozenblad testified that he was nervous.
(Id.
at 2933.) Before his cross-examination began and immediately following the luncheon recess, outside the presence of the jury, the trial court announced:
Ladies and gentlemen that are here to watch the trial, the Court is going to clear the courtroom for the remainder of the afternoon. You are invited back tomorrow morning at 9 o’clock in the morning. Okay? Deputies, clear the courtroom. And leave the building, not only to leave the courtroom but leave the building. See everybody tomorrow at 9:00.
(ECF No. 35, Trial Tr., Vol. 14, at 2967-68.)
After the courtroom was cleared of spectators, and still outside the presence of the jury, the trial court explained the reasons for the partial closure:
The Court: It’s come to the attention of the Court that some of the jurors — or witnesses feel threatened by some of the spectators in the court. The Court’s making a decision that until we get through the next couple of witnesses I’m going to clear the courtroom. That includes the victim’s family, the defendant’s family and all other spectators. The Court had two incidents yesterday involving one of the spectators where he showed total disrespect to the Court in chambers and gave the deputies a very hard time. I didn’t hold him in contempt of court, but just after that then another individual — there was a physical
*666
altercation between that individual who also came to watch the trial. His name’s Damian Williams. * * *
* *
The Court: Who ultimately got charged with assault on a peace officer. So over the objection of the defendant I’m clearing the courtroom just for today only. Mr. Gentile?
[Defense Counsel] Mr. Gentile: Yes, your Honor. We would object to the Court’s ruling. The defendant is entitled to a public trial under the United States Constitution. I don’t disagree that there has been some sort of misconduct here that has been brought to my attention. However, that has not been attributable to the defendant, to Mr. Drummond, and we, therefore, don’t think that he should be punished in terms of not having the support, people — his family, that in the nature of this case, a capital case, that he would require making.
The Court: Just to perfect the record, I do believe that the one individual who was not charged with contempt of court yesterday, Michael Peace, is in fact John Drummond’s brother.
[Prosecuting Attorney] Mr. Franken: No.
The Court: No?
Mr. Franken: Michael Peace says he’s family. Others have said he isn’t. He told Deputy Schmuck that he was family to Drummond. He’s not a brother though.
The Court: Right. And we go back to when we were seating the jury and John Drummond approached a potential juror’s husband in the jail, so. There’s been a string of things. Just to make the record. * * *
* * *
The Court: * * * We would all agree that the media is permitted in so at least we have a record by a disinterested outside source.
Mr. Gentile: Yes, Your Honor.
The Court: Let me see the prosecutor, [sic] Kelly. I’m going to allow the press in at least so we can have — .
Id.
at 2968-71 (ellipses added). Following this explanation, the jurors were brought in and the trial continued with only the parties, attorneys, court staff, and members of the media. The trial court memorialized its order in an entry dated February 5, 2004, stating, in full:
Due to the behavior of some of the Courtroom spectators and the fear of retaliation expressed by various witnesses, the Court, upon motion of the State, ordered all spectators removed from the Court for the duration of February 4, 2004 beginning at 1:30 p.m. This over the objection of the Defendant. The media will be permitted access.
(ECF No. 34, App. to Return, Vol. 2, at 81.) The clearing of the courtroom occurred for the testimony of three witnesses for the prosecution: James “Cricket” Rozenblad (cross-examination only), Nathaniel Morris, and Yaraldean Thomas, who were the last three witnesses for the day.
See Drummond,
111 Ohio St.3d at 22 , 854 N.E.2d 1038 . After Rozenblad and Morris testified, they, too, were directed by the Court to “leave the building.” (ECF No. 35, Trial Tr., Vol. 14, at 2993 (Rozenblad) 3061, (Morris).)
The next day, on February 5, 2004, prior to calling witness Leonard Schroeder, the prosecuting attorney asked for a side bar, after which the trial court announced in front of the jury:
[A]t this time I’m going to clear the courtroom until another witness is called. So for the people that are spectators in the courtroom, you may remain in the courthouse but you probably will not be permitted back in till about quarter till 3:00 or so.
*667
(ECF No. 35, Trial Tr., Vol. 15, at 3262.) The court cleared the courtroom, again allowing only Drummond, attorneys, court staff, jurors, and members of the media to be present for the testimony of Leonard Schroeder.
Id.
That same day, the trial court memorialized its order in an entry stating:
Due to the safety concerns expressed by witness Leonard Schroeder Jr., the Court ordered the Courtroom closed (February 5, 2004) to all except the media during his testimony only. This without objection from either party.
(ECF No. 49, App. to Return, Vol. 2, at 82.)
Drummond appealed his conviction and sentence to the Ohio Supreme Court as of right. On November 4, 2005, the Ohio Supreme Court ordered supplemental briefing on the issue of whether the partial closures deprived Drummond of his Sixth Amendment right to a public trial.
Drummond,
111 Ohio St.3d at 19 , 854 N.E.2d 1038 . The Ohio Supreme Court ultimately determined that Drummond’s right to a public trial was not violated, and it affirmed his conviction and sentence.
See id.
at 24 , 854 N.E.2d 1038 ;
infra.
7
Drummond alleges in his Amended Petition that he was deprived of his right to a public trial.
2. Analysis
Drummond contends that the February 4 and February 5 partial closures each violated his Sixth Amendment right to a public trial. Drummond procedurally defaulted his claim with respect to the February 5 partial closure. As to the February 4 partial closure, this Court finds that the Ohio Supreme Court’s rejection of Drummond’s claim was objectively unreasonable. Each will be discussed
seriatim.
a. February 5 Partial Closure
The Ohio Supreme Court held that Drummond failed to object to the February 5 partial closure, and thus his claim of right to a public trial was waived with respect to that partial closure.
Drummond,
111 Ohio St.3d at 24 , 854 N.E.2d 1038 . “The failure to object contemporaneously is a generally recognized, firmly established independent and adequate state law ground for refusing to review trial errors.”
Burton v. Bock,
187 Fed.Appx. 465, 470 (6th Cir.2006) (citing
Coleman,
501 U.S. at 747 , 111 S.Ct. 2546 ). Because Drummond failed to comply with a state procedure to have his February 5 partial closure claim heard by the state courts, he has procedurally defaulted this claim.
Edwards,
529 U.S. at 451 , 120 S.Ct. 1587 . Thus, for his claim to be cognizable in this Court, Drummond must show cause and prejudice for his procedural default.
Id.
Drummond argues that his trial counsel were ineffective for failing to object to the February 5 partial closure, and that this constitutes cause for his procedural default. As stated above, ineffective assistance of counsel can constitute cause and prejudice excusing a procedural default of an underlying claim.
Beuke v. Houk,
537 F.3d 618, 631 (6th Cir.2008) (citing
Franklin v. Anderson,
434 F.3d 412, 418 (6th Cir.2006)). However, a claim of ineffective assistance of counsel, asserted as cause for procedural default, can itself be procedurally defaulted.
Edwards,
529 U.S. at 452-53 , 120 S.Ct. 1587 . In his briefing, Drummond never presented to the Ohio Supreme Court the issue of ineffective assis
*668
tance with respect to failing to object to the February 5 partial closure.
Drummond argues that a closed, off-record, in-chambers discussion preceded the trial judge’s decision to close the courtroom on February 5, 2004, and that, as a result, “there is no indication in the transcript as to whether or not Drummond or his defense counsel
did
object in chambers to the subsequent closure.” (ECF No. 57, at 10 (emphasis in original).) Put another way, Drummond argues that, because there was no record as to whether his trial counsel objected to the February 5 partial closure, his appellate counsel were unable to raise ineffective assistance for failure to object, which constitutes “cause” for his failure to raise the issue on appeal. Drummond’s argument lacks merit. Although he is correct that the in-chambers discussion was not recorded, a February 5, 2004 entry by the trial court stated that the February 5 partial closure was “without objection from either party.”
Drummond,
111 Ohio St.3d at 21 , 854 N.E.2d 1038 . The trial court’s entry placed Drummond’s appellate counsel on notice that trial counsel failed to object to the February 5 partial closure, and thus there was no “objective factor external to the defense [that] impeded counsel’s efforts” to raise the issue on appeal.
Coleman,
501 U.S. at 752 , 111 S.Ct. 2546 .
Drummond also argues that he made “efforts in state court to address his counsel’s ineffectiveness for allowing the closure of the courtroom in the only way he could,” namely, ineffective assistance for failing to request that all sidebar conferences be recorded. (ECF No. 57, at 10.) This does not rescue Drummond from procedural default. Even if it is true that one of the unrecorded sidebar conferences involved matters pertaining to the February 5 partial closure, “[i]t is not enough that all the facts necessary to support the federal claim were before the state courts [...].”
Anderson v. Harless,
459 U.S. 4, 6 , 103 S.Ct. 276 , 74 L.Ed.2d 3 (1982);
see also Lott,
261 F.3d at 607 . Rather, a petitioner must present “the same claim under the same theory” to the state courts.
Caver v. Straub,
349 F.3d 340, 346 (6th Cir.2003) (citation omitted). As Drummond did not present to the Ohio courts the theory of ineffective assistance for failure to object to the February 5 partial closure, he failed to exhaust that claim before the Ohio courts.
Drummond’s ineffective assistance claim with respect to the failure to object to the February 5 partial closure is procedurally defaulted and, therefore, so is his claim that the February 5 partial closure violated his Sixth Amendment rights.
b. February 4 Partial Closure
Drummond also asserts that he is entitled to habeas relief because the February 4 partial closure violated his right to a public trial. The right to a public trial is guaranteed by the Sixth Amendment, and a violation of such a fundamental right constitutes structural error.
Johnson v. United States,
520 U.S. 461, 468-69 , 117 S.Ct. 1544 , 137 L.Ed.2d 718 (1997). That is, because the “defect affect[s] the framework within which the trial proceeds,”
Arizona v. Fulminante,
499 U.S. 279, 310 , 111 S.Ct. 1246 , 113 L.Ed.2d 302 (1991), it “def[ies] analysis by ‘harmless-error’ standards.”
Id.
at 309 , 111 S.Ct. 1246 .
As stated above, the finding by a majority of the Ohio Supreme Court that the trial court did not commit structural error in ordering the partial closure of the courtroom and that Drummond’s right to a public trial was not violated by the February 4 partial closure is subject to AEDPA’s deferential standard of review.
8
While nu
*669
merous modern Supreme Court decisions have analyzed courtroom closures under the First Amendment, at the time the Ohio Supreme Court decided
Drummond,
the only relevant Supreme Court decision reviewing a courtroom closure under the Sixth Amendment was
Waller v. Georgia,
467 U.S. 39 , 104 S.Ct. 2210 , 81 L.Ed.2d 31 (1984).
9
In
Waller ,
a Georgia state trial court had closed an entire suppression hearing to all but witnesses, court personnel, the parties, and their attorneys.
Id.
at 42 , 104 S.Ct. 2210 . The trial court ordered the closure to prevent unnecessary “publication” of information contained in wiretaps, which would render evidence tainted and inadmissible under Georgia wiretap law.
Id.
(citing Ga.Code Ann. § 26-3004(k) (1977 & Supp.1981)). On appeal, the parties agreed that fewer than two and a half hours of the seven-day hearing were devoted to playing audio recordings that were subject to the wiretap law.
Id.
The Georgia Supreme Court affirmed petitioners’ convictions and ruled that “the trial court had properly balanced petitioners’ rights to a public hearing against the privacy rights of others under Georgia law and the Sixth Amendment.”
Id.
at 43, 104 S.Ct. 2210 (citation omitted).
The United States Supreme Court began its review of the Georgia Supreme Court’s ruling by noting that “the right to an open trial” is not absolute, and “may give way in certain cases to other rights or interests [...].”
Id.
at 45 , 104 S.Ct. 2210 . The Court cautioned, however, that there is a “presumption of openness” and, therefore, the “balance of interests must be struck with special care.”
Id.
It then applied precedent of the First Amendment courtroom closure cases, specifically “the tests set out in
Press-Enterprise
and its predecessors” under which: (1) “the party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced” if the courtroom remains open; (2) “the closure must be no broader than necessary to protect that interesé;]” (3) “the trial court must consider reasonable alternatives to closing the proeeeding[;]” and (4) “it must make findings adequate to support the closure.”
Id.
at
*670
47, 48, 104 S.Ct. 2210 (citation omitted). Before ordering a closure, a trial court must render “ ‘findings specific enough that a reviewing court can determine whether the closure order was properly entered.’ ”
Id.
at 45 , 104 S.Ct. 2210 (quoting
Press-Enterprise,
464 U.S. at 510, 104 S.Ct. 819 ).
Applying this test, the Supreme Court first noted that the purported interest of “protecting the privacy of persons not before the court [...] may well justify closing portions of a suppression hearing to the public.”
Id.
at 48, 104 S.Ct. 2210 . The Court found, however, that the prosecution, in seeking the closure, “was not specific as to whose privacy interests might be infringed, how they would be infringed, what portions of the [evidence] might infringe them,” and, “[a]s a result, the trial court’s findings were broad and general, and did not purport to justify the closure of the entire hearing.”
Id.
Further, the trial court “did not consider alternatives to immediate closure of the entire hearing” and, consequently, “the closure was far more extensive than necessary.”
Id.
at 48-49 , 104 S.Ct. 2210 . Accordingly, the Supreme Court held that the Georgia trial court had violated petitioner’s Sixth Amendment right to a public trial.
In
Drummond,
the Ohio Supreme Court relied on
Waller
in reviewing the trial court’s February 4 closure but adopted a modified version of the test articulated by the United States Supreme Court. The court explained:
Waller
dealt with the suppression hearing during which all persons other than witnesses, court personnel, the parties, and their lawyers were excluded for the entire duration, [citation omitted] This case differs, as it deals with partial closure of a trial. The trial court excluded members of the public and the defendant’s family, but did so only for the length of a single cross-examination and two other witnesses’ testimony. The trial court permitted media representatives to remain in the courtroom throughout the testimony of these witnesses. Federal courts have concluded that when a trial judge orders a partial, as opposed to a total, closure of a court proceeding, a “substantial reason” rather than
Waller’s
“overriding interest” will justify the closure.
Drummond,
111 Ohio St.3d at 22 , 854 N.E.2d 1038 (citing
Woods v. Kuhlmann,
977 F.2d 74, 76 (2d Cir.1992);
United States v. Sherlock,
962 F.2d 1349, 1357 (9th Cir.1989);
Nieto v. Sullivan,
879 F.2d 743, 753 (10th Cir.1989);
Douglas v. Wainwright,
739 F.2d 531, 533 (11th Cir.1984)).
The Ohio Supreme Court properly noted that
Waller
addressed a total closure of a courtroom, while the trial court in
Drummond
only partially closed the courtroom. At the time the Ohio Supreme Court decided
Drummond,
the United States Supreme Court had not analyzed the extent of a petitioner’s Sixth Amendment right to a public trial when the courtroom was only partially closed either to a particular person or for a limited duration. Indeed, the Court did not conduct such a review until very recently.
See Presley v.
Georgia, U.S. -, 130 S.Ct. 721 , 175 L.Ed.2d 675 (2010). In
Presley ,
the Court reviewed the Georgia Supreme Court’s determination that there was no violation
of
the defendant’s Sixth Amendment right to a public trial when the trial court totally excluded the public from observing the
voir dire
portion of petitioner’s criminal trial. In its analysis, the Court applied the four-part
Waller
test.
Id.
at 724 (quoting
Waller,
467 U.S. at 48 , 104 S.Ct. 2210 ).
The decision of the Ohio Supreme Court in
Drummond,
however, was decided a little over three years before
Presley
when there was no clearly established federal law concerning partial courtroom closures.
*671
Indeed, at the time
Drummond,
was decided, circuit courts disagreed whether Waiter strictly extended to partial closure cases like the one at issue here, and many opted to apply a modified
Waller
test.
Compare United States v. Osborne,
68 F.3d 94, 98-99 (5th Cir.1995) (noting that the Second, Eighth, Ninth, Tenth, and Eleventh Circuits all applied a modified
Waller
test to partial closings and itself applying that modified test) (citations omitted),
with Walton v. Briley,
361 F.3d 431, 433 (7th Cir.2004) (applying
Waller
test, without any modifications, to partial closure). Several circuits held that the first part of the
Waller
test was met where there was a “substantial reason” justifying a partial closure rather than an “overriding interest.” These courts reasoned that a less strict standard was all that was required because a partial closure does not implicate the same secrecy and fairness concerns of a total closure.
E.g., Garcia v. Bertsch,
470 F.3d 748, 753 (8th Cir.2006);
Osborne,
68 F.3d at 98-99 ;
Woods,
977 F.2d at 76 ;
Sherlock,
962 F.2d at 1357 ;
Nieto,
879 F.2d at 753 ;
Douglas,
739 F.2d at 533 . The circuits agreed, however, that the remaining three parts of the
Waller
test should be applied without modification.
While
Presley
now makes it clear that there must be an “overriding interest,” as pronounced in
Waller ,
to justify even a partial courtroom closure, this Court may only address whether the Ohio Supreme Court’s requirement of “a substantial interest” rather than “an overriding interest” was, at that time, an unreasonable application of
Waller ,
not whether it was incorrect.
See
28 U.S.C. § 2254 (d)(1);
see also Renico v. Lett,
- U.S. -, 130 S.Ct. 1855, 1862 , 176 L.Ed.2d 678 (2010) (citing
Williams v. Taylor,
529 U.S. 362, 410 , 120 S.Ct. 1495 , 146 L.Ed.2d 389 (2000)). In light of the existing disagreement about the precedent created by
Waller
at the time the Ohio Supreme Court decided
Drummond,
this Court cannot say that it was objectively unreasonable for it to apply a modified
Waller
test.
10
The reasonable adaptation of the
Waller
test, however, does not automatically render the Ohio Supreme Court’s application of that test reasonable. Mindful of the deference owed under AEDPA, this Court shall review the Ohio Supreme Court’s decision concerning each part of the modified
Waller
test for reasonableness.
Before turning to the
Waller
analysis, however, it should be noted that, although the Sixth Amendment right to a public trial is the right of the accused alone,
[tjhere can be no blinking the fact that there is a strong societal interest in public trials. Openness in court pro
*672
ceedings may improve the quality of testimony, induce unknown witnesses to come forward with relevant testimony, cause all trial participants to perform their duties more conscientiously, and generally give the public an opportunity to observe the judicial system.
Gannett Co. v. DePasquale,
443 U.S. 368, 383 , 99 S.Ct. 2898 , 61 L.Ed.2d 608 (1979). Or, in the words of Justice Harlan: “Essentially, the public-trial guarantee embodies a view of human nature, true as a general rule, that judges, lawyers, witnesses, and jurors will perform their respective functions more responsibly in an open court than in secret proceedings. A fair trial is the objective, and ‘public trial’ is an institutional safeguard for attaining it.”
Estes v. Texas,
381 U.S. 532, 588 , 85 S.Ct. 1628 , 14 L.Ed.2d 543 (1965) (Harlan, J., concurring) (citing
In re Oliver,
333 U.S. 257, 266-73 , 68 S.Ct. 499 , 92 L.Ed. 682 (1948)).
The Ohio Supreme Court in
Drummond
held that the inclusion of the media served to protect these societal interests and stated: “media presence helped safeguard Drummond’s right to a public trial. Indeed, the witnesses’ awareness of the media minimizes the risk that they would alter their testimony when the proceeding was partially closed.” 111 Ohio St.3d at 22 , 854 N.E.2d 1038 . It continued: “Moreover, the transcript of the trial became a public record. In sum, we find none of the secrecy prohibited by the Sixth Amendment.”
Id.
at 22-23 , 854 N.E.2d 1038 (citing
Sherlock,
962 F.2d at 1358 ). As one circuit court noted, however, the fact that a trial court permitted the media to be present during a partial closure of the courtroom does not guarantee media presence and thus, in and of itself, does not automatically cure Sixth Amendment deficiencies:
Simply
allowing
the press to be present, however, does not serve the same purpose as allowing the public to be present, for the press is not the public, and the Sixth Amendment guarantees a
public
trial. It is only as a fiduciary for the public that the presence of the press mitigates against what otherwise would be a closed, non-public trial. Thus, in certain cases, the presence of the press has been held to safeguard the public trial right, the press serving as a fiduciary for the public, not because they were
allowed
to be present, but because they were present and reported the trial activities and informed the public of that which the public was unable to experience first-hand because of the closure order. It does not follow logically that because the Sixth Amendment requires only that the
public
be
allowed
to be present that where the public is excluded but the
press
is
allowed
to remain the Sixth Amendment right is not infringed.
If the press is not actually acting as fiduciary for the public, then a partial closure is no different than an absolute closure
[...].
Douglas v. Wainwright,
714 F.2d 1532, 1542-43 (11th Cir.1983) (citation omitted; final emphasis added),
vacated and remanded,
468 U.S. 1206 , 104 S.Ct. 3575 , 82 L.Ed.2d 874 (1984), reaffirmed 739 F.2d 531 (11th Cir.1984). The court in
Douglas
concluded: “The determination of the degree of press coverage, therefore, is necessary to a determination of the extent to which the public trial was infringed.”
Id.
at 1543.
Here, no evidence of media presence during the entire closure was presented by the State, nor did it present any evidence that the closed portions of the trial were reported by the media, much less reported accurately.
11
It would be
*673
improper for this Court to presume either the media’s presence or its accurate reporting. While the presence of the media certainly may address the societal need for public trials, it cannot act as an absolute substitute where, as here, it cannot be determined from the record that the media was present for the entire duration of the closure. Moreover, as noted by the dissent in the Ohio Supreme Court decision and as discussed further below, “it cannot be reasonably argued that the news reporters who remained in the courtroom can stand in the shoes of members of defendant’s family.”
Drummond,
111 Ohio St.3d at 53 , 854 N.E.2d 1038 (Moyer, C.J., dissenting);
see also In re Oliver,
333 U.S. 257, 271-72 , 68 S.Ct. 499 , 92 L.Ed. 682 (1948). This Court thus reviews the Ohio Supreme Court’s application of
Waller
without assuming the curative effect of the media, who may or may not have been present during the duration of the closure and who may or may not have accurately reported to the general public while the public was excluded from the courtroom.
i. Substantial Reason
Concerning the first part of the
Waller
test, the Ohio Supreme Court found that “the trial court’s interest in maintaining courtroom security and protecting witness safety supported the trial court’s limited closure of the courtroom.”
Drummond,
111 Ohio St.3d at 22 , 854 N.E.2d 1038 . The court concluded the advanced interest was “substantial” because the trial court noted that there had been “a physical altercation between a spectator and courtroom deputies, and a second incident occurred in the judge’s chambers[,]” and that “fear of retaliation [was] expressed by various witnesses [...].”
Id.
The Ohio Supreme Court additionally, and without reference to any finding of the trial court, found a substantial interest because of “the dangerous nature of gang violence and the genuine need to protect witnesses testifying against gang members from the deadly threat of retaliation.”
Id.
As discussed above, given the state of the law at the time, this Court finds that the Ohio Supreme Court’s application of
Waller
to require a “substantial,” as opposed to an “overriding,” interest was not unreasonable. It must determine, however, whether it was unreasonable for the Ohio Supreme Court to conclude that there was a “substantial reason” for the closure on February 4.
The Supreme Court has held unconstitutional under the First Amendment at least one statute that issued a blanket closure.
See, e.g., Globe Newspaper Co. v. Superior Court for Norfolk County,
457 U.S. 596 , 102 S.Ct. 2613 , 73 L.Ed.2d 248 (1982). In
Globe Newspaper,
the Court held unconstitutional a Massachusetts statute that required trial courts to automatically exclude the press and the general public from the courtroom during testimony of minors who were victims of sexual abuse. The Court agreed with the State that its interest in safeguarding the physical and psychological wellbeing of minors was a compelling one, “[b]ut as compelling as that interest is,” the Court held that it did “not justify a
mandatory
closure rule, for it is clear that the circumstances of the particular case may affect the significance of the interest. A trial court can determine on a case-by-case basis whether closure is necessary to protect the welfare of a minor victim.”
Id.
at 607-08 , 102 S.Ct. 2613 . Courts, relying on
Globe Newspaper,
have held that trial
*674
courts must make similar case-by-case determinations before closing a courtroom under the Sixth Amendment.
See, e.g., Davis v. Reynolds,
890 F.2d 1105, 1110 (10th Cir.1989). As the Tenth Circuit summarized, failure to make “any inquiry or findings concerning the specific condition of the witness in [a particular] case, is essentially equivalent to the blanket legislative closure rejected in
Globe Newspaper”
and thus is unconstitutional.
Davis,
890 F.2d at 1111 . In the instant case, the Ohio Supreme Court, without reference to any finding of the trial court, “acknowledge[d] the dangerous nature of gang violence and the genuine need to protect witnesses testifying against gang members from the deadly threat of retaliation” to support its finding of a substantial interest for the closure.
Drummond,
111 Ohio St.3d at 22 , 854 N.E.2d 1038 . Such a blanket assertion does not support a substantial interest.
In short, a substantial interest cannot be advanced without being defined. A substantial interest may, therefore, be found where the trial court makes specific inquiries concerning the reason for closure, such as inquiring about a particular witness’s fear of testifying.
See, e.g., Woods,
977 F.2d at 75 (affirming denial of habeas relief where trial court learned from prosecution that eye witness was threatened by at least one member of accused’s family, justifying exclusion of all of accused’s family members for duration of her testimony);
Nieto,
879 F.2d at 749 (affirming denial of habeas relief where trial court learned witness “worried about testifying since two of the assailants were still at large”). On the other hand, a substantial interest cannot be found if the trial court makes no inquires about a particular witness’s alleged fear.
E.g., Guzman v. Scully,
80 F.3d 772, 775-76 (2d Cir.1996). In sum, if a witness’s fear is the advanced interest, the trial court must inquire as to which witness is afraid and as to the nature of his or her fears.
Here, the trial court made no specific inquiries on the record about who was feeling threatened by whom, but only generally stated that “some of the jurors — or witnesses feel threatened by some of the spectators in the court.”
Drummond,
111 Ohio St.3d at 19 , 854 N.E.2d 1038 . Similarly, the trial court’s order closing the courtroom that was issued the following day did not identify who was threatening whom but merely cited “the behavior of
some
of the Courtroom spectators and the fear of retaliation expressed by
various
witnesses” as the reason for the closure.
Id.
at 20 , 854 N.E.2d 1038 (emphases added). Indeed, nowhere in the trial record is it discussed by any party which witnesses were frightened or which spectators were threatening witnesses.
12
See id.
at 52-53 , 854 N.E.2d 1038 (Moyer, C.J., dissenting) (“The record also does not support closing the courtroom because of the ‘fear of retaliation expressed by various witnesses,’ because no such witnesses were identified.”). Without such a record, it was unreasonable for the Ohio Supreme Court to ascertain that the advanced interest was substantial.
While the witnesses cannot be identified by review of the trial record; in contrast, the “jurors” also referenced by the trial court at the time it issued the closure can be identified. At the time of the closure, the trial court generally stated “when we were seating the jury [...] Drummond
*675
approached a potential juror’s husband in the jail
[...]." Drummond,
111 Ohio St.3d at 20 , 854 N.E.2d 1038 . Review of the transcript during
voir dire
clarifies the name of this potential juror and the nature of her fear
(ie.,
her husband worked in the jail where Drummond was incarcerated and was approached by Drummond who stated personal things about his wife, such as the fact that she was pregnant).
(See
ECF No. 35, Trial Tr., Vol. 11, at 2329-30.) This juror was excused for cause during jury selection and thus did not participate in the trial.
(Id.)
Accordingly, fears expressed by this potential juror, although identifiable from the record, could not have reasonably constituted a substantial interest that might justify closure on February 4.
Likewise, as the dissent in
Drummond
pointed out, the two incidents mentioned by the trial court concerning general courtroom security also could not justify the closure on February 4 because they “had occurred
the previous day.” Id.
at 52, 854 N.E.2d 1038 (Moyer, C.J., dissenting) (emphasis in original). Even if those incidents occurred at the end of February 3, the trial proceeded the following morning without any reference to them and, apparently, without any security concerns. (ECF No. 35, Trial Tr., Vol. 13, at 2844.) In other words, it is not evident from the trial transcript how these disturbances could constitute an immediate threat to courtroom security on the afternoon of February 4. Moreover, the perpetrators of each incident were known by the trial court and could have easily been excluded from the remaining proceedings to address any security threat that those individuals posed.
Drummond,
111 Ohio St.3d at 20 , 854 N.E.2d 1038 . The trial judge made no such exclusionary order. This Court finds no basis upon which it may find that either incident posed an immediate threat to courtroom security. In sum, given the trial record, neither incident may reasonably be said to constitute a substantial interest justifying the closure on February 4.
Accordingly, this Court finds that it was an unreasonable application of
Waller
for the Ohio Supreme Court to find that the prosecution had advanced a substantial interest to justify the closure on February 4.
ii. Closure No Broader than Necessary
The Ohio Supreme Court also found that “the closure was no broader than necessary,” applying the second part of the
Waller
test.
Drummond,
111 Ohio St.3d at 22 , 854 N.E.2d 1038 . The court reasoned that closure was sufficiently tailored because
[t]he courtroom was closed only while Rozenblad was cross-examined and while Morris and Thomas testified. Spectators were readmitted afterwards. Also, the trial judge provided expressly that the media could remain in the courtroom during the testimony of all these witnesses. [¶]... ] Moreover, the transcript of the public trial became a public record.
Drummond,
111 Ohio St.3d at 22 , 854 N.E.2d 1038 . In short, the Ohio Supreme Court held that because the closure lasted for one cross-examination and two full examinations (as opposed to the entire trial), the media was present, and the trial transcript became public record, the closure was no broader than necessary. Yet, nowhere does it explain the basis of this holding.
The United States Supreme Court has noted: “Our cases have uniformly recognized the public trial guarantee as one created for the benefit of the defendant.”
Gannett Co. v. DePasquale,
443 U.S. 368, 380 , 99 S.Ct. 2898 , 61 L.Ed.2d 608 (1979). But the Court has never specified whose presence, at a minimum, must be allowed to ensure a defendant a constitutionally guaranteed public trial.
But see In re
*676
Oliver,
333 U.S. 257, 259 , 68 S.Ct. 499 , 92 L.Ed. 682 (1948) (conviction for contempt with only judges and perhaps staff members and prosecutor present violates right to public trial). The Court has, however, noted in dicta that “without exception all courts have held that an accused is at the very least entitled to have his friends, relatives and counsel present, no matter with what offense he may be charged.”
Id.
at 271-72 , 68 S.Ct. 499 .
Here, petitioner’s counsel explicitly argued that the closure should not extend to Drummond’s family.
Drummond,
111 Ohio St.3d at 20 , 854 N.E.2d 1038 (“I don’t disagree that there has been some sort of misconduct here that has been brought to my attention. However, that has not been attributable to the defendant, to Mr. Drummond, and we, therefore, don’t think that he should be punished in terms of not having the support, people — his family, that in the nature of this case, a capital case, that he would require making.”) Nonetheless, the trial court did not permit Drummond’s family to attend and made no findings explaining why Drummond’s family should be excluded.
13
Habeas courts generally require lower courts to offer some rationale justifying the extent of the closure to determine whether it was sufficiently tailored.
E.g., Woods,
977 F.2d at 77 (“Having determined that the trial judge adequately assessed the scope of [the testifying eyewitness’s] fear, we disagree with [petitioner’s] contention that the closure order was broader than necessary”). Such rationale is particularly important where the exclusion extends to petitioner’s family members.
E.g., LaPlante v. Crosby,
133 Fed.Appx. 723, 726 (11th Cir.2005) (finding second part of
Waller
test met where petitioner “objected to the exclusion of members of his family, the trial court found that the protection of the [witness, a child who was a victim of sexual abuse] (a compelling state interest under
Globe Newspaper)
required the family members to be excluded along with the general public”);
English v. Artuz,
164 F.3d 105, 109 (2d Cir.1998) (finding second part of
Waller
test not met where trial court failed to justify exclusion of accused’s family members).
Here, the trial court offered no specific rationale justifying the extent of its closure. For example and as discussed above, there were no findings that any particular witness felt threatened by any particular spectator. Likewise, there were no findings that Drummond’s family posed any threat. Under such circumstances, a reviewing court cannot assess whether the trial court’s closure was narrowly tailored.
See, e.g., Guzman,
80 F.3d at 776 (“With the interest in favor of closure merely alleged but not established, there could be no compliance with the second requirement that the closure be ‘no broader than necessary to protect’ the interest.”) (quot
*677
ing
Waller,
467 U.S. at 48 , 104 S.Ct. 2210 ). The Ohio Supreme Court nonetheless held the closure was sufficiently tailored. This Court finds this to be an unreasonable application of
Waller .
Furthermore, this Court disagrees with the Ohio Supreme Court’s assumption that because the closure was of a “limited” duration, one cross-examination and two full examinations, it was necessarily sufficiently tailored. 111 Ohio St.3d at 22 , 854 N.E.2d 1038 . Crucially, the Ohio Supreme Court neglected to consider the importance of the testimony of these witnesses.
See, e.g., Judd v. Haley,
250 F.3d 1308, 1317 (11th Cir.2001) (finding
Waller
test not met and noting that “the record reflects a total closure of the courtroom during the testimony of a critical witness”);
English,
164 F.3d at 108 (“The extent of the closure takes into consideration the duration of the closure and importance of the testimony rendered while the courtroom was closed [¶]... ].”) (citation omitted);
cf. Tillman v. Bergh,
No. 2:06cv11555, 2008 WL 6843654 , at *12 (E.D.Mich. July 2, 2008) (finding no Sixth Amendment violations and noting the triviality of the closure because it lasted the duration of a single witness, a 911 operator whose testimony “lasted only four minutes, and was limited to whether the clocks on patrol car cameras and computers are synchronized with the clock on the computers at Central Dispatch.”) As the dissent in
Drummond
pointed out:
Thomas, Morris, and Rozenblad were key prosecution witnesses, and their testimony was crucial in securing Drummond’s conviction. Thomas saw Drummond with an assault rifle prior to the shooting and overheard Drummond tell Gilliam “It’s on” before the shootings. Morris was in pretrial confinement with Drummond and overheard him tell another inmate that “he didn’t meant [sic] to kill the baby; he was trying to get at somebody else * * Rozenblad testified on direct examination (in the presence of spectators) that he saw Drummond before the shooting talking “about a guy moving in * * * [their] neighborhood [who] could have had something to do with the death of Brett Schroeder.” During cross-examination, when the courtroom was closed, Rozenblad testified that he did not get along with Drummond and that they were never friends.
Drummond,
111 Ohio St.3d at 53 , 854 N.E.2d 1038 (Moyer, C.J., dissenting) (alterations in original). Although, for reasons discussed under Ground Two below, this Court does not agree with the characterization of these witnesses as
key
witnesses, it does find that they were
important
witnesses and disagrees that closure during such important testimony could be considered “limited.” By extension, it also cannot agree that the closure was, thus, inherently narrowly tailored.
Accordingly, this Court finds that the Ohio Supreme Court’s holding that the closure was no broader than necessary was an unreasonable application of
Waller .
iii. Consideration of Alternatives
The Ohio Supreme Court acknowledged that the trial court did not explicitly consider alternatives to the partial closure, as required by the third part of
Waller ,
but nonetheless found this part of the test was met because “the partial closure of the courtroom [...] is narrower than full closure for the entire trial.”
Drummond,
111 Ohio St.3d at 23 , 854 N.E.2d 1038 . At best, the Ohio Supreme Court implied that, in ordering a partial closure, the trial court must have considered and rejected the more rigid alternative of a complete closure. Nothing in the trial record, however, reflects that the trial court considered any alternatives. Under
Waller ,
the trial court should have considered alternatives on a reviewable record,
*678
and that was not done in this case.
See
Waller, 467 U.S. at 48 , 104 S.Ct. 2210 ;
see also Judd,
250 F.3d at 1318 (affirming grant of habeas relief in part because trial court failed to consider alternatives on the record).
In his dissent in
Presley ,
Justice Thomas, joined by Justice Scalia, contests the majority’s characterization of
Press-Enterprise
and
Waller
as requiring the trial courts to
sua sponte
consider alternatives and asserts that neither decision “ ‘explicitly]’ places on trial courts the burden of
sua sponte
suggesting alternatives to closure ‘absent an opposing party’s proffer of some alternatives.’ ” 130 S.Ct. at 727 (Thomas, J., dissenting) (quoting majority opinion,
id.
at 724; alterations in original);
see also Ayala v. Speckard,
131 F.3d 62, 71 (2d Cir.1997) (“[W]e see nothing in [...]
Waller
to indicate that once a trial judge has determined that limited closure is warranted as an alternative to complete closure, the judge must
sua sponte
consider further alternatives to the alternative deemed appropriate.”);
accord Bell v. Jarvis,
236 F.3d 149, 169-70 (4th Cir.2000);
Gibbons v. Savage,
555 F.3d 112, 117-18 (2d Cir.2009). This Court need not address whether the Ohio Supreme Court should have held that the trial court was required to considered alternatives
sua sponte
because as explained above, the trial court was presented with at least one alternative by Drummond’s counsel,
i.e.,
that Drummond’s family be permitted to attend.
Drummond,
111 Ohio St.3d at 19 , 854 N.E.2d 1038 . There is no indication in the record that the trial court considered this alternative or, if it did, why the alternative was rejected. This Court finds that this flat rejection, without explanation, cannot constitute proof that the trial court actually considered the proposed alternative, and thus does not meet the third part of the
Waller
test.
Further, as the dissent pointed out: “Damian Williams and Michael Peace were identified by the trial court as having been involved in the disturbances the previous day. Thus, the trial court could have barred Williams and Peace from the courtroom as an alternative to closing the court to all spectators except the media.”
Drummond,
111 Ohio St.3d at 54 , 854 N.E.2d 1038 (Moyer, C.J., dissenting) (citing
State v. Sanders,
130 Ohio App.3d 92, 98 , 719 N.E.2d 619 (1998) (trial court erred by failing to consider alternative of identifying spectators responsible for disturbances and expelling them)). This Court could find nothing in the record to indicate that the trial court considered and then rejected this other evident alternative.
In sum, the record is devoid of any indication that the trial court considered alternatives when ordering the closure. Because the Ohio Supreme Court acknowledged this deficiency, it was an unreasonable application of
Waller
for it to hold that the requirement of considering alternatives was met.
iv. Adequate Findings
Finally, the Ohio Supreme Court held that the trial court made adequate findings to support the partial closure, as required by the fourth prong of
Waller. Drummond,
111 Ohio St.3d at 23 , 854 N.E.2d 1038 . Specifically, the Supreme Court found that:
the trial court stated there had been a physical altercation between spectators and courtroom deputies. The trial court also mentioned that another incident had occurred in the judge’s chambers and that witnesses had expressed fear of retaliation by testifying in open court. The trial court also identified Damian Williams and Michael Peace as involved in earlier disturbances.
Id.
The Ohio Supreme Court further stated that, while additional findings should
*679
have been made to justify the partial closure, “the strength of the judge’s actual findings must be evaluated in reference to the limited scope of the closure.”
Id.
The court found that, based upon the scope of the closure, the trial judge’s findings, and information gleaned from the record, “the trial court’s findings were adequate.”
Id.
(citations omitted). In other words, the Ohio Supreme Court held that the trial court’s broad and vague findings were sufficient because it believed the closure was limited.
This Court disagrees with the characterization of the closure as “limited.” As noted above and as explained more fully in the discussion of Ground Two, the witnesses were important to the prosecution’s case; the entire public was excluded, including Drummond’s family; and there is no evidence in the record that the media was present for the entire duration of the closure or that it made any reports about what occurred during the closure. Under such circumstances, this Court simply cannot say that the closure on February 4, while partial, was also limited. But even if it was limited, the trial court was nonetheless required, under
Waller ,
to make specific factual findings to justify the closure.
Habeas courts, relying on
Waller ,
repeatedly find the Sixth Amendment violated where the trial court failed to articulate specific, reviewable findings to justify a partial courtroom closure.
E.g., Judd,
250 F.3d at 1318 (affirming grant of habeas relief where motion for courtroom closure took place off record, in part because there were no reviewable findings of trial court justifying closure);
English,
164 F.3d at 109 (affirming grant of habeas relief where “trial judge failed to use the colloquy to arrive at meaningful findings adequate to justify the exclusion of [the accused’s] family”);
Guzman,
80 F.3d at 776 (reversing and granting habeas relief in part because there was “no finding that the mere presence of [the four persons excluded from the trial] would instill fear in the witness”);
Davis,
890 F.2d at 1112 (affirming grant of habeas relief because “trial court improperly violated [petitioner’s] Sixth Amendment right to a public trial by failing to articulate specific, reviewable findings”);
Mason v. Schriver,
14 F.Supp.2d 321, 325 (S.D.N.Y.1998) (granting habeas relief because the trial court’s “conclusory statement is plainly insufficient under
Press-Enterprise I, Waller,
and their progeny as it falls far short of the ‘explicit’ and ‘specific’ recorded findings necessary to support closure”);
accord United States v. Galloway,
937 F.2d 542 (10th Cir.1991) (remanding to trial court to making factual findings supporting closure and noting that, if case had proceeded on habeas review, the proper remedy would be reversal of conviction);
United States v. Doe,
63 F.3d 121 (2d Cir.1995) (remanding to trial court to make factual findings supporting closure).
The dissent in
Drummond
properly characterized the findings of the trial court:
Here, the record contains little information to aid a reviewing court in determining whether the trial court’s order was reasonable and necessary. The trial court’s judgment entry states that the prosecution moved to close the courtroom, but the record does not include the prosecution’s evidence or arguments supporting its position. These matters may have been considered by the court during a sidebar discussion, but no such discussions were included in the record, as
Waller
requires.
Drummond,
111 Ohio St.3d at 55 , 854 N.E.2d 1038 (Moyer, C.J., dissenting) (citing
State v. Morris,
157 Ohio App.3d 395 , 811 N.E.2d 577 (2004)). Indeed, the only “findings” articulated by the trial court,
i.e.,
witnesses or jurors’ fear and the disturbances on February 3, as explained
*680
above, are not sufficiently detailed to illuminate meaningful review as to why the closure was necessitated on February 4 during Rozenblad’s cross-examination and Thomas’s and Morris’s entire examinations. These articulated findings alone simply do not satisfy the fourth part of the
Waller
test, and it was unreasonable for the Ohio Supreme Court to hold that this part was met.
Here, as described above in relation to other parts of the
Waller
test, this Court’s review of the trial record revealed: (1) no witness testified as to any specific threat; (2) the only potential juror who felt threatened by Drummond was dismissed for cause during jury selection; (3) Michael Peace and Damian Williams caused disturbances on February 3, but nothing in the record suggests they were specifically excluded from attending the trial on the morning of February 4; and (4) nothing in the record suggests that there were any disturbances in the courtroom on the morning of February 4. Taken together, this Court finds nothing in the trial record that the Ohio Supreme Court may have relied upon to supplement the trial court’s findings that would justify the closure.
Accordingly, this Court finds it was unreasonable, under
Waller ,
for the Ohio Supreme Court to have found that the trial court set forth reviewable findings justifying the closure and met the fourth part of the test.
v. Conclusion
For the reasons discussed above, this Court finds that the trial court’s partial closure of the courtroom on February 4 resulted in structural error and, therefore, Drummond’s Sixth Amendment right to a public trial was violated. Accordingly, Drummond’s first ground for relief is granted in part.
B. Second Ground for Relief — Confrontation Violation
Drummond asserts that his Sixth Amendment Confrontation right was violated when the trial court limited the scope of defense counsel’s cross-examination of three State witnesses. Drummond raised this issue on direct appeal to the Ohio Supreme Court and, therefore, this Court may review this ground for relief on the merits.
1. Pertinent Facts
During trial, the court denied defense counsel’s request to question Morris, Thomas, and Rozenblad regarding prior or pending criminal charges. Defense counsel sought to introduce evidence that Morris had been charged, but not convicted, of escape in Columbus. Defense counsel proffered that he was entitled to cross-examine Morris regarding the escape charge, reasoning as follows:
[Defense counsel] Mr. Gentile: The witness initially said that he did not feel that he was facing so much time [for another charge] while he was in the county jail.
The Court: Right.
Mr. Gentile: I thought at that point I would be able to bring out the fact that he was facing a felony 2 escape from Columbus.
The Court: Okay.
Mr. Gentile: And that would then make him more concerned that he could be facing eight years instead of the few years because he had already made his deal on the cocaine case where he pled to a felony 4. They dismissed the gun spec and he high-tailed it out of there.
(ECF No. 35, Trial Tr., Vol. 14, at 3036-37.)
When the trial court questioned the relevance of the escape charge in Columbus
*681
to Drummond’s capital case in Mahoning County, defense counsel responded:
Mr. Gentile: It goes — any evidence goes to his bias or motive to pleasing the ' State of Ohio irregardless of what county it’s in.
Plus it goes to the fact that this gentleman knows the system. He knows how to get himself out of deals.
He has written letters to judges. He has done everything under the sun in order to get out of jail.
(Id.
at 3037.) Thereafter, the trial court ruled that defense counsel could not cross-examine Morris on the Columbus escape charge but counsel could cross-examine him regarding a previous conviction for false reports.
(Id.
at 3041-42.)
Defense counsel also sought to cross-examine Thomas regarding a 1992 drug charge that remained pending during the time of trial. The State proffered that, because of the age of the charge and the consequent lack of evidence, it was going to dismiss the charge. The trial court questioned both Thomas and his attorney, Michael Rich, about whether the State had made any promises to Thomas in exchange for his testimony. Both responded that the State had made no promises in exchange for Thomas’s testimony against Drummond. Thereafter, the trial court ruled that defense counsel could not use the drug charge pending against Thomas during cross-examination. (ECF No. 35, Trial Tr., Vol. 14, at 3121-27; Vol. 17, at 3676-83.)
Finally, Drummond argues that the trial court erred when it prohibited defense counsel from cross-examining Rozenblad regarding pending marijuana trafficking charges. Defense counsel sought to cross-examine Rozenblad to ascertain whether the pending charges had induced him to testify for the State. Counsel argued as follows:
[Defense counsel] Mr. Yarwood: [¶]... ] The point is he has potential criminal charges pending, he cooperates with the State, he may expect that one of those counts may be dismissed, one of them may be amended. It doesn’t matter if it happens. It’s a bias as to why, why he may have a motive to come in here and make them happy—
* * *
I’m just saying that we’re saying his continued cooperation. In his mind he may think I favor this side so I better be good because I’m going to get whacked on these charges. That’s bias, any reason that he might tailor his testimony.
(Id.
at 2958-59; 2959-60.) The trial court responded that it would not permit cross-examination on the pending charges because it had no proof before it that Rozenblad actually had been indicted.
(Id.
at 2960.)
2. Ohio Supreme Court’s Opinion
Addressing this issue, the Ohio Supreme Court held that the trial court did not abuse its discretion in prohibiting defense counsel from questioning Thomas and Morris about pending criminal charges. Although it found that the trial court erred in ruling that counsel could not cross-examine Rozenblad regarding his pending criminal charges, it determined that the error was harmless. It reasoned as follows:
[¶]... ] Drummond argues that the trial court’s ruling prohibiting cross-examination on the pending charges of the three witnesses violated Evid.R. 616(A), which provides: “Bias, prejudice, interest, or any motive to misrepresent may be shown to impeach the witness either by examination of the witness or by extrinsic evidence.”
*682
The pendency of charges in another case or the witness’s plea arrangement with the prosecutor is admissible to prove the bias of the witness.
State v. Brooks
(1996), 75 Ohio St.3d 148, 152 [, 661 N.E.2d 1030 ];
State v. Hector
(1969), 19 Ohio St.2d 167 [, 249 N.E.2d 912 ], paragraph five of the syllabus (predates evidentiary rules); see 1 McCormick, Evidence (5th Ed.1999) 147, Section 39 (bias includes evidence that “an indictment is pending against [the witness], the witness has not been charged with a crime, has been promised leniency, * * * [or] is awaiting sentence”);
see, also,
Giannelli & Snyder, Evidence (2d Ed.2001) 562, Section 616.3. In
Hector ,
we recognized, “[T]he testimony of [a prosecution] witness is or may be influenced by the expectation or hope that, by aiding in the conviction of the defendant, he might be * * * rewarded by leniency in the disposition of his own ease.” 19 Ohio St.2d at 178 [, 249 N.E.2d 912 ].
The trial court did not abuse its discretion by not permitting the defense to cross-examine Thomas about his pending drug charges.
State v. Webb
(Dec. 8, 1999), Summit App. No. 19318, 1999 WL 1215163 , *1 (the trial court exercises broad discretion in the admission and exclusion of evidence under Evid.R. 616). The defense had been informed before Drummond’s trial that the charges against Thomas would eventually be dismissed because of the age of the charges and the lack of evidence. There was no evidence that Thomas was offered a plea bargain or any other inducement to testify. Thus, the pending drug charges were not relevant in proving his bias in testifying against Drummond.
See State v. Gavin
(1977), 51 Ohio App.2d 49, 54 [, 365 N.E.2d 1263 ] (“a stale charge is irrelevant to credibility because the element of pressure is not there”).
The trial court also did not abuse its discretion by not allowing the defense to cross-examine Morris about the escape charge because those charges had already been dismissed. Thus, cross-examination about the dismissed charges would not have shown bias.
The trial court should have permitted the defense to cross-examine Rozenblad about his pending charges, however. Rozenblad had been charged with trafficking in marijuana, and an indictment was pending on the charges. Rozenblad said that no deals had been reached in exchange for his testimony and that he did not expect to receive a benefit on the charges if he testified against Drummond. Nevertheless, if the defense had been permitted the opportunity to question Rozenblad about the pending charges, the jury could have tested his credibility.
See State v. Durant,
159 Ohio App.3d 208 ¶ 34 [, 823 N.E.2d 506 ] (“Prejudice ensues from a
denial of the opportunity
to place the witness in his proper setting and put the weight of his testimony and his credibility to a test * * * ” [Emphasis sic]).
Nonetheless, we hold that any error in denying cross-examination of Rozenblad was harmless. The trial court allowed counsel to fully cross-examine Rozenblad about all aspects of his activities on the night of the murders. Rozenblad admitted that over a period of five hours on March 24, he had taken six Valium and had drunk six beers. He acknowledged during cross-examination that he did not get along with Drummond, although he had been friends with Brett Schroeder. Thus, the jury knew that Rozenblad’s perceptions on the night of the murder were affected by his drug and alcohol use. The jury also knew of motivations that might have influenced his testimony.
See Brooks,
75 Ohio St.3d at 152 [, 661 N.E.2d 1030 ] (Evid.R.
*683
616 violation resulted in harmless error where other concrete examples of the witness’s truthfulness, or lack thereof, and motivations that might have influenced his testimony were presented to the jury).
Based on the foregoing, we overrule proposition II.
Drummond,
111 Ohio St.3d at 30-31 , 854 N.E.2d 1038 (parallel citations omitted).
3. Applicable Law
The Sixth Amendment affords a criminal defendant “the right [¶]... ] to be confronted with the witnesses against him.” U.S. Const. Amend. VI. As the Sixth Circuit recently acknowledged, “[t]his right is incorporated against the states through the Due Process Clause of the Fourteenth Amendment.”
Miller v. Stovall,
608 F.3d 913, 918 (6th Cir.2010) (citing
Pointer v. Texas,
380 U.S. 400, 406 , 85 S.Ct. 1065 , 13 L.Ed.2d 923 (1965)).
Because cross-examination is a powerful defense tool used to undercut the credibility of a state witness, the right to confront a witness includes the right to cross-examine him or her regarding possible biases. Permitting defense counsel to cross-examine a state witness about prior convictions “afford[s] the jury a basis to infer that the witness’s character is such that he would be less likely than the average trustworthy citizen to be truthful in his testimony.”
Davis v. Alaska,
415 U.S. 308, 316 , 94 S.Ct. 1105 , 39 L.Ed.2d 347 (1974).
A trial court has the authority to limit the scope of cross-examination for purposes of curtailing harassment, prejudice, or confusion.
Miskel v. Karnes,
397 F.3d 446, 452 (6th Cir.2005). The extent (or limitation) of cross-examination is within the sound discretion of the trial court.
Alford v. United States,
282 U.S. 687, 694 , 51 S.Ct. 218 , 75 L.Ed. 624 (1931). When a trial court merely limits the extent of cross-examination, rather than barring it altogether, the trial court is afforded wider latitude.
Dorsey v. Parke,
872 F.2d 163, 167 (6th Cir.1989). In these circumstances, the test is “whether the jury had enough information, despite the limits placed on otherwise permitted cross-examination, to assess the defense theory.”
Id.
(citations omitted). The impetus for this test is to permit the defense to “ ‘plac[e] before the jury facts from which bias, prejudice or lack of credibility of a prosecution witness might be inferred[.]’ ”
Id.
(quoting
United States v. Garrett,
542 F.2d 23, 25 (6th Cir.1976)). Where a trial court limits the cross-examination of the government’s “star” witness, a reviewing court must analyze the claim with heightened scrutiny.
Dorsey,
872 F.2d at 166 .
In
Delaware v. Van Arsdall,
475 U.S. 673 , 106 S.Ct. 1431 , 89 L.Ed.2d 674 (1986), the Supreme Court held that, when a reviewing court determines that a trial court unconstitutionally limited the scope of a defense cross-examination, it should apply the harmless error test articulated in
Chapman v. California,
386 U.S. 18 , 87 S.Ct. 824 , 17 L.Ed.2d 705 (1967). The Court in
Van Arsdall
advised:
Whether such an error is harmless in a particular case depends upon a host of factors, all readily accessible to reviewing courts. These factors include the importance of the witness’ testimony in the prosecution’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting the testimony of the witness on material points, the extent of cross-examination otherwise permitted, and, of course, the overall strength of the prosecution’s case.
Id.
at 684 , 106 S.Ct. 1431 (citations omitted).
Pursuant to the standard set forth above, this Court must now decide wheth
*684
er the Ohio Supreme Court’s opinion was clearly contrary to or an unreasonable application of
Davis v. Alaska
and
Delaware v. Van Arsdall,
the relevant United States Supreme Court precedent.
4. Legal Analysis
a. Morris and Thomas Cross-examination
The Ohio Supreme Court did not contradict or unreasonably apply Supreme Court precedent when it reviewed the Morris and Thomas cross-examinations.
As
it observed, the charges against Morris already had been dropped by the time he testified. Thus, there was no incentive for Morris to curry favor with the State by altering his testimony. Similarly, the charges against Thomas were twelve years old at the time of trial and the parties were aware that the prosecution intended to dismiss them because the evidence supporting them had disappeared. On these grounds, the Ohio Supreme Court determined that the trial court did not abuse its discretion by prohibiting defense counsel from cross-examining on these charges.
This decision was a reasonable one. The purpose of defense counsel’s ability to cross-examine state witnesses about pending criminal charges is to uncover any possible motivations the witness might have to testify favorably for the state. Here, Morris’s charges already were dismissed and the charges against Thomas were going to be dropped because of their age. Neither Morris nor Thomas had any incentive to alter their testimony. Thus, the Ohio Supreme Court’s ruling that the trial court had authority to limit this aspect of defense counsel’s cross-examination was not unreasonable.
b. Rozenblad Cross-examination
On direct appeal, the Ohio Supreme Court held that the trial court should have permitted counsel to cross-examine Rozenblad regarding the pending drug charges because, “if the defense had been permitted the opportunity to question Rozenblad about the pending charges, the jury could have tested his credibility.”
Drummond,
111 Ohio St.3d at 31 , 854 N.E.2d 1038 . The Ohio Supreme Court thereafter held that any error was harmless because defense counsel questioned Rozenblad about the events on the night of the murder, elicited that he had consumed large quantities of drugs and alcohol on that evening, along with the fact that he disliked Drummond. Counsel also elicited that Rozenblad was, like Drummond, friends with Schroeder and thus had the identical motive to shoot at the Rutledge Avenue home as Drummond.
When reviewing the Ohio Supreme Court’s harmless error analysis with the
Van Arsdall
factors, it appears that the court addressed only one of the factors,
ie.,
the extent of cross-examination otherwise permitted. The court did not comment on the importance of Rozenblad’s testimony to the State’s case, whether the testimony was cumulative, the presence or absence of evidence corroborating or contradicting Rozenblad’s testimony, or the overall strength of the State’s case.
When a state court does not assess the merits of a petitioner’s habeas claim, the deference due under AEDPA does not apply. In such a case, the habeas court is not limited to deciding whether that court’s decision was contrary to or involved an unreasonable application of clearly established federal law, but rather conducts a
de novo
review of the claim.
Morales,
507 F.3d at 930 (citations omitted);
Newton,
349 F.3d at 878 ;
Maples,
340 F.3d at 436-37 . If the state court conducts a harmless error analysis but does not indicate whether its finding is based on state or federal constitutional law, however, a habeas court, while con
*685
ducting an independent review of the facts and applicable law, must nonetheless determine “whether the state court result is contrary to or unreasonably applies clearly established federal law.”
Maldonado,
416 F.3d at 476 (citing
Harris v. Stovall, 212
F.3d at 943).
Because the Ohio Supreme Court did not address the remaining factors of the
Van Arsdall
test, this Court presumes, based on the above precedent, that it must conduct a
de novo
review of them and determine whether the Ohio Supreme Court’s result was unreasonable.
i. Importance of Rozenblad’s Testimony/Cumulative Testimony
In the Traverse, Drummond argues that Rozenblad’s testimony was essential to the State’s case. He maintains that Rozenblad established Drummond’s presence at the party on Duncan Lane in which he overheard Drummond, Gilliam, and one other individual talking about a newcomer to the neighborhood who may have been involved in Schroeder’s death. Drummond notes that it was Rozenblad who connected Drummond to the Lincoln Knolls Crips gang and who had connected Drummond to Schroeder. Rozenblad also testified that he saw Drummond with a gun at the party.
Respondent counters that Rozenblad’s testimony was cumulative of other witnesses, thereby diminishing its importance. He asserts that other witnesses testified regarding Drummond’s gang activity, his connection to Schroeder, his presence at the party, and his possession of a gun while there. In fact, other witnesses did testify about Drummond’s gang involvement. Thomas testified that he knew that Drummond was a member of the Lincoln Knolls Crips. (ECF No. 35, Trial Tr., Vol. 14, at 3079-80.) Sergeant Michael Lambert of the Youngstown Police Department’s Gang Unit also testified that Drummond’s picture and name were in a book partially devoted to Schroeder.
14
(Id.,
Vol. 15, at 3144, 3146.) Thomas and his neighbor, William Greer, also testified that they observed Drummond with a gun while at the party.
(See, e.g., id.,
Vol. 14, at 3071;
see also, id.,
Vol. 13, at 2663) (testimony of William Greer, “Q: He had something on his side? What does he have on his side? A: A gun.”). Thus, Rozenblad’s testimony was largely cumulative of the testimony of Thomas, Sgt. Lambert, and Greer, lessening its significance to the State’s case. In contrast, however, Rozenblad was the only witness who testified that he heard Drummond talking at the party that someone who “could have had something to do with the death of Brett Schroeder” had moved into the neighborhood. (ECF No. 35, Trial Tr., Vol. 14, at 2934-35). To that extent, Rozenblad’s testimony was not cumulative and was important to the State’s case. This factor, therefore, weighs neither for nor against a finding of harmless error.
ii. Presence or Absence of Corroborating or Contradicting Testimony
Rozenblad’s testimony was also cumulative and corroborative of the testimony of other State witnesses. Similar to Rozenblad’s testimony, Williams testified that he saw Drummond get in the passenger side of Gilliam’s car driving towards the Dent home.
(Id.,
Vol. 13, at 2706.) On direct examination, Thomas testified that, while at the party, he obse

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/2474053. Public record. Not legal advice.