Brand v. Warden, Corr. Reception Ctr.

• Decision Date: 20 March 2020
• Docket Number: Case No. 1:18-cv-697
• Parties: BARON BRAND, Petitioner, v. WARDEN, CORRECTIONAL RECEPTION CENTER, Respondent.
• Court: U.S. District Court — Southern District of Ohio

BARON BRAND, Petitioner, v. WARDEN, CORRECTIONAL RECEPTION CENTER,¹ Respondent.

Case No. 1:18-cv-697

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

March 20, 2020

Bertelsman, J.

Litkovitz, M.J.

REPORT AND RECOMMENDATION

Petitioner, an inmate in state custody, has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his Hamilton County, Ohio, convictions. (Doc. 1). This matter is before the Court on the petition (Doc. 1) and respondent's return of writ (Doc. 7), to which petitioner has replied (Doc. 10).

For the reasons stated below, the petition should be denied.

I. PROCEDURAL HISTORY

State Trial Proceedings and Direct Appeal

On May 19, 2014, a Hamilton County, Ohio, grand jury returned a sixteen-count indictment charging petitioner with two counts of aggravated murder (Counts One and Three), two counts of murder (Counts Two and Four), two counts of felonious assault (Counts Five and Six), three counts of aggravated robbery (Counts Seven, Eight, Nine), five counts of having a weapon while under a disability (Counts Ten, Eleven, Twelve, Fifteen, and Sixteen), one count of trafficking in heroin (Count Thirteen), and one count of possession of heroin (Count Fourteen). With the exception of the five counts of having a weapon while under a disability andthe two drug charges, all counts carried accompanying weapon specifications and a repeat-violent-offender specification. (Doc. 6, Ex. 1).

Prior to trial, petitioner pleaded guilty to trafficking in heroin, possession of heroin, and two counts of having a weapon under disability. (Doc. 6, Ex. 8). The remaining counts, however, were tried to a jury. The Ohio Court of Appeals, First Appellate District, provided the following summary of the facts that led to petitioner's convictions:²

On the evening of May 2, 2014, Courtney McKinney had been at her apartment with [her cousin, Keelin] Broach[,] and [Beyoncia] Willis. Broach was a known drug dealer and had brought drugs to McKinney's apartment. McKinney left Broach and Willis at her apartment while she went out with a friend to several bars. Upon returning home in the early hours of May 3, McKinney entered the interior lobby of her apartment building. As she began to walk up the stairs to her second-floor unit, she noticed someone, whom she later identified as Devin Isome, at the top of the stairs. Isome pulled out a gun and stated "Where the money at?" She told him that she only had $50 and a credit card, to which Isome responded, "Bitch. I don't want no $50 or no credit card." He then indicated towards her apartment and asked, "Who in here?" Isome was wearing a black hoodie and jeans. The hoodie was tied under his chin, but McKinney had no problem seeing his face.

McKinney attempted to run back outside, but a second person, later identified by McKinney as Brand, approached her from the basement as she was on the second step. Brand had on a white hoodie, also tied under his chin. He stated, "Nah, we going up in here," and he put a gun to her back as he walked her up the stairs. Isome put his gun to her head as she unlocked her apartment door. The lights were on in McKinney's apartment, and Broach and Willis were lying on a couch. Brand and Isome ordered McKinney onto a couch and Broach onto the ground, and they repeatedly demanded money. Broach told them that he did not have money, but that they could have his dope that was on the table. Brand took items off the table and tied Broach's hands behind his back with the jogging pants that Broach had been wearing. Brand then placed a phone call over speakerphone and told theperson whom he had called, "It aint [sic] no money." McKinney heard the other person respond, "Kill them," and she immediately ran into her bedroom and jumped out the window. She heard a gunshot as she was jumping, and she realized that she had been shot in the arm once she hit the ground. McKinney heard two more gunshots as she ran to the nearest house with lights on.

A resident of the house to which McKinney had fled called the police, and McKinney was taken to a hospital. Cincinnati Police Officer Thomas Stanton had been one of the responding officers, and he had followed a blood trail leading to the side of McKinney's apartment building. He saw that the blood trail had originated from a broken second-story window. Officer Stanton secured the apartment building. The front door to McKinney's apartment was slightly ajar, but Officer Stanton had to force it open because a body had been obstructing it. Upon entering, Officer Stanton immediately saw two deceased victims. Both Broach and Willis had been shot in the head and had died from the resulting injuries.

Criminalist Kathy Newsome processed the crime scene in McKinney's apartment. She found drug paraphernalia, specifically a baggie of marijuana, a scale, and a box of plastic bags. She also found several pieces of copper jacketing and shell casings. Criminalist Newsome identified the ammunition as Dynamic Research Technologies ("DRT"), a brand she had never before encountered. Kevin Lattyak, a firearms supervisor with the Hamilton County Coroner's Officer [sic], examined the casings that had been collected. In Lattyak's opinion, the casings had been fired from a semi-automatic handgun, specifically a Bersa.

Detectives Jake Wloszek and Colin Vaughn interviewed McKinney at the hospital around 6:30 a.m. on May 3, 2014. Although McKinney's medical records indicated that she had been intoxicated, McKinney stated that she had only consumed two alcoholic beverages and had not been drunk. Detective Vaughn noticed that McKinney was very upset, but did not seem intoxicated. McKinney told the detectives that the first suspect that she had encountered was a male black, approximately 5'8", and 21-22 years of age. She described the second suspect as a light-skinned black male, shorter than the first suspect, and as having been 20-28 years old.

Detective Vaughn again interviewed McKinney on May 9, 2014. In this interview, McKinney described the first suspect as a male black that was 5'6" or taller. She described the second suspect as again being shorter than the first, approximately 5'3", stocky with a yellow complexion, and around 22-23 years old. Testimony revealed that Isome was actually 6'4" and was several inches taller than Brand.

Detective Vaughn had developed Brand as a suspect following Brand's arrest on unrelated charges, and he prepared a photographic lineup containing a picture ofBrand for McKinney to examine. Vaughn was aware of the discrepancies between Brand's height and the heights contained in McKinney's various descriptions when he made the lineup, but he believed that McKinney's ability to accurately judge height had been affected because she had been looking down on Brand from the stairwell when she first saw him. Detective Terry McGuffey served as blind administrator and showed McKinney the photographic lineup. Upon seeing photograph number three, McKinney began to cry and stated, "That's him. That's that motherfucker right there. I'm a thousand percent that that's him." Brand was the subject of photograph number three. Upon seeing photograph number six, McKinney responded that the picture "looks similar to the tall one. I'm iffy about him." Detective Vaughn did not construe McKinney's statements to be an identification of the person in photograph number six as one of the suspects, so he conducted no follow-up investigation of that person.

McKinney developed Isome as a suspect through her own investigation, and she showed Detective Vaughn a picture of Isome obtained from Facebook. On May 12, 2014, Detective Vaughn had a blind administrator show McKinney two additional photographic lineups. McKinney identified no persons in the first lineup. But in the second lineup that she was shown, McKinney identified Isome as the first suspect that she had encountered.

Christopher Hill testified at trial that he had been incarcerated on various charges at the same time that Brand had been incarcerated for the offenses in this case. Hill and Brand had a conversation in jail about their respective cases. Brand told Hill that a woman named Courtney had arranged with him to set up Broach for a robbery. According to Brand, he had followed Courtney home from a club with the intention of taking Broach's money and heroin. Brand further told Hill that mayhem had ensued, and that he had shot at Courtney, who had fled by jumping out a window. Before he left with a couple ounces of heroin and a couple thousand dollars, Brand shot Broach and another woman to eliminate any witnesses.

Evidence was further presented to the jury that Brand had been arrested on unrelated offenses on May 8, 2014. As part of that arrest, a search warrant was executed at Brand's residence at 5460 Beechmont Avenue. When executing the warrant, officers discovered a large amount of heroin, approximately $1,900, a .380 Bersa handgun, and a box of DRT .380 cartridges. Detective Vaughn testified that he had never seen a DRT head stamp on a cartridge case prior to this case, and that Brand had admitted that the DRT ammunition, the weapon, and the heroin found at the Beechmont residence belonged to him.

Over Brand's objection, the state presented testimony from Laurie Bellow, a retired detective from the Forest Park police department. Bellow testified that in 2010, she had been dispatched to the scene of a robbery. In that case, money, a cell phone,and marijuana had been stolen from an individual known to sell drugs, and the victim had been shot during the robbery. Bellow explained that she had developed Brand as a suspect in that case, and that he had ultimately been convicted of the resulting charges.

Brand presented testimony from Melissa Berry, an expert in the psychology associated with eyewitness identification. Although Berry could not state with certainly that McKinney's eyewitness identification had been inaccurate, she explained that there

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