In an earlier order, this Court dismissed as procedurally defaulted the prosecutorial-misconduct claim set forth in Petitioner's eleventh ground for relief. (ECF No. 31-1, at Page ID # 335-338). The Court further held that Petitioner's third and seventh grounds, challenging respectively the trial court's failure to conduct a competency hearing sua sponte and the trialcourt's allowing alternate jurors to be present during deliberations, were subject to procedural default, pending the Court's determination of whether Petitioner could demonstrate cause and prejudice to excuse the default of those claims.3 (Id. at Page ID # 328, 335).
The Court permitted factual development in this case, beginning with granting Petitioner leave to conduct certain discovery. (ECF No. 37). Specifically, the Court allowed Petitioner to depose Dr. Douglas Mossman and Mitigation Specialist James Crates in support of Petitioner's first ground for relief alleging that he was tried while incompetent. (Id. at Page ID # 400-405). The Court also allowed Petitioner to depose Mr. Crates in support of Petitioner's fourth ground for relief asserting that his trial counsel were ineffective in failing to ensure Petitioner's competency. (Id. at Page ID # 409-410). Finally, the Court permitted Petitioner to depose Attorney Philip Lon Allen in support of Petitioner's thirteenth ground for relief alleging that his trial counsel were ineffective for failing to prepare and present mitigating evidence. (Id. at Page ID # 412-414). It was Respondent, not Petitioner, who sought to depose Mr. Allen. Respondent filed notice on February 1, 2008, indicating that Mr. Allen did not appear for his deposition. (ECF No. 44). Pursuant to the Court's March 30, 2007 decision, Petitioner filed the depositions of Mr. Crates and Dr. Mossman on March 24, 2008. (ECF No. 49). The Court subsequently issued an Order allowing Petitioner to supplement the record with any transcripts or documents from the state-court record that had not been filed with the Court. (ECF No. 54). Petitioner filed two exhibits from his state postconviction hearing on July 14, 2009. (ECF No. 60). Finally, on March 31, 2009, the Court issued an Opinion and Order denying Petitioner's motion for an evidentiaryhearing, subject to reconsideration should the Court determine that the materials already a part of the record are insufficient to resolve Petitioner's claims. (ECF No. 56, at Page ID # 789-791).
This case is now ripe for review of the grounds for relief that are properly before the Court.
II. Factual and Procedural History The details of this capital murder and aggravated robbery are set forth in numerous state-court opinions, including the Ohio Supreme Court's published opinion in State v. Braden, 98 Ohio St. 3d 354 (2003):
In this appeal, defendant-appellant, David L. Braden, raises 15 propositions of law. Finding none meritorious, we affirm his convictions. We have independently weighed the aggravating circumstance in each count against the mitigating factors and compared his sentence to those imposed in similar cases, as R.C. 2929.05(A) requires. As a result, we affirm defendant's convictions and sentence of death.
David L. Braden was distraught that his relationship with Denise Roberts might be ending. Roberts resided with her father, 83-year-old Ralph Heimlich, at his Columbus home. Heimlich thought that Braden was a "scumbag" and wanted Roberts to end her relationship with Braden.
On August 3, 1998, Braden showed up at Roberts's workplace and argued with her in the parking lot. They continued to argue following dinner that evening, and Braden damaged Heimlich's car. Later that evening, Braden armed himself and went to Roberts's home. There, he shot Roberts once in the head, and he repeatedly shot Heimlich, killing them both. Braden was convicted of the aggravated murders of Roberts and Heimlich and sentenced to death.
The evidence against Braden included testimony and videotape showing Braden arguing with Roberts at her place of employment, testimony that Braden brandished a pistol prior to the murders, Roberts's complaint filed with police an hour before the murders that Braden had "keyed" her father's car, testimony identifying Braden as the person leaving the crime scene, evidence that Braden did not return to his home until 45 minutes after the murders, and forensic testimony that bullets removed from the victims' bodies were similar to bullets found at Braden's home.
State's Case
Shortly after 6:00 p.m. on August 3, 1998, Denise Roberts talked to Victoria Hauser, a co-worker at Merck-Medco in Columbus, about her personal life. According to Hauser, conflict between Braden and Roberts's father was ongoing. Roberts expressed her love for Braden, but Heimlich thought he was a "scumbag." After their conversation, Hauser "demanded that [Roberts] walk out with [her] and that [they] stop and talk with security on the way out" of the building.
Braden was waiting at Merck-Medco to meet Roberts as she left work. Braden had arrived at Merck-Medco's entrance, had told the security guard he "was here to pick his girlfriend up," and had signed his name as "Joe Bob, visitor" on the visitor's log. Braden waited for a few minutes and then went outside.
Roberts had spotted Braden's van in the Merck-Medco parking lot before she left the building, and she asked a security guard to "keep an eye on her as they walked out to their car because she didn't * * * know why her boyfriend was on the property." Roberts declined the security guard's offer for an escort to her car because "she was fearful that that would make [Braden] angry." However, parking lot surveillance cameras were directed on Braden's van, and a security vehicle followed Roberts and Hauser while they walked to Roberts's car.
Braden pulled up his van to block Roberts and Hauser while they were walking towards the parking lot. Braden said, "Hi baby," and told Roberts that he wanted to talk to her. Roberts was "terrified." She told Braden that Hauser "was walking [her] to her car because Roberts had something in her car that she wanted to give to Hauser." Braden told Roberts that "he would follow her to the car," and told Hauser to "get the fuck out of here, I want to talk to my girlfriend * * * ."
The guard in the security vehicle approached Braden after observing him talk to the two women. Upon being approached, Braden said, "What is this? What do I look like? I'm her boyfriend. Do I look like a murderer?" Roberts agreed that Braden was her boyfriend, and the security guard resumed driving around the parking lot to make sure there was no physical violence.
Roberts drove Hauser back to the front of the building, and Hauser returned to work. Before leaving, Hauser told Roberts, "Please come to my house, don't go home, don't get out of your car, don't talk to him, he's going to kill you." Surveillance footage shows that Braden and Roberts got out of their cars, had an "intense" conversation, and then returned to their vehicles and left the parking lot.
At approximately 7:30 p.m., Roberts was at Braden's home on Acton Road in Columbus. Shawn Craddock was visiting his mother, Braden's next-door neighbor, and heard Roberts and Braden arguing. Craddock overheard Braden say,"This was bullshit," although he did not hear what else they said. Roberts was later heard getting into her car and pulling out of Braden's driveway.
Sometime between 8:00 p.m. and 9:30 p.m., Roberts went to a police substation and reported that Braden had damaged her car. Officer Michael Tucker described her as "kind of hysterical" and said, "I could tell she had been crying because some of her makeup was running down her face a little bit." Roberts reported that "she had just gotten in an argument with her boyfriend and that he had keyed up her car." Roberts recounted events leading up to this incident, saying "that [Braden] had showed up at her work and that they had talked a little bit, and he had talked her into going to dinner. She * * * went back to his house, and they got into another argument. She said she got in her car, he wanted to get inside the car and couldn't, and that is when he scratched the car up."
Officer Tucker did not take an incident report since the car was in her father's name. Roberts was advised to have her father call the police station and have a report taken then. After they had finished talking, Tucker viewed the damage, which "appeared to be scratch marks from * * * a key or something like that on the hood and on the side of the door and on top of the car." Roberts then returned home, and Officer Tucker drove "towards [Braden's] house, to see if [he] could either see him outside or * * * , maybe talk to him about it."
Between 9:30 and 9:45 p.m., Craddock was backing his car out of his mother's driveway and saw Braden "standing in the center window * * * and it appeared * * * that he was pointing a gun at" Craddock. Craddock drove to the nearest pay phone and called the police. At around 10:00 p.m., Craddock called his mother, who said, "He's just now leaving."
After calling the police, Craddock pulled his van behind Officer Tucker's police cruiser as it was parked on Acton Road. Craddock reported
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