Carter v. Adams Cnty. Court of Common Pleas

Decision Date19 April 2019
Docket NumberCase No. 1:17-cv-650
PartiesPAUL W. CARTER, Petitioner, v. ADAMS COUNTY COURT OF COMMON PLEAS, Respondent.
CourtU.S. District Court — Southern District of Ohio

PAUL W. CARTER, Petitioner,
v.
ADAMS COUNTY COURT OF COMMON PLEAS, Respondent.

Case No. 1:17-cv-650

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF OHIO WESTERN DIVISION

April 19, 2019


Black, J.
Litkovitz, M.J.

REPORT AND RECOMMENDATION

Petitioner, currently on a pre-trial release bond,1 has filed through counsel a petition for a writ of habeas corpus under 28 U.S.C. § 2241 to prevent further prosecution in the Adams County Court of Common Pleas after a mistrial was declared. (Doc. 1). Respondent opposes the petition. (Doc. 14). Petitioner has filed a traverse (Doc. 18), to which respondent has filed a sur-reply (Doc. 22).

I PROCEDURAL HISTORY

State Trial Proceedings

In June 2013, the Adams County, Ohio, Grand Jury returned a four-count indictment against petitioner. (See Doc. 12, Ex. 1). The first count alleged rape involving petitioner's granddaughter, M.S., with a specification that the victim was under ten years old; the second count alleged sexual battery involving Heather (petitioner's daughter and M.S.'s mother); and the third and fourth counts alleged rape involving Heather. (See id.; see also Doc. 12, Ex. 5; Doc. 1, at PageID 7, 10-11). Prior to trial, one of the counts of rape involving Heather (Count Four) was dismissed. (Doc. 12, Ex. 6). On July 29, 2014, the case proceeded to a jury trial on the remaining three counts. (See Docs. 6, 7).

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At trial, the State's first witness was M.S. She was then ten years old. (Doc. 6, at PageID 320). M.S. testified about the allegations that formed the basis of Count One of the indictment. More specifically, M.S. testified that she called the "part [of the body] that a girl goes pee out of" a "cookie" and a "kitty cat." (Doc. 6, at PageID 332, 334-35). She also testified that she knew the same part is also called a vagina. (Doc. 6, at PageID 334). According to M.S., the alleged incident occurred on the day of her fourth birthday party. (Doc. 6, at PageID 340, 344-45). M.S. testified that she was "sitting in the living room watching Winnie the Poo" and was wearing a princess shirt and pajama pants. (Doc. 6, at PageID 347, 349-50). M.S. testified that her grandmother and sister had gone to get her birthday cake and that when the alleged incident occurred she and petitioner were alone in the living room. (Doc. 6, at PageID 345-46). M.S. further testified that "[petitioner] grabbed [her] by [her] arms and [her] legs together and tied them up together and put duck tape on [her] mouth and stuck his finger in [her] kitty cat." (Doc. 6, at PageID 350). She testified that petitioner only stopped when he heard a car door slam. (Doc. 6, at PageID 354). M.S. testified that when petitioner heard the car door he untied her, washed his hands, hid the rope he had used to bind her arms and legs, and threated to spank her if she told anyone. (Doc. 6, at PageID 354-55).

On cross-examination, the following exchange occurred between M.S. and defense counsel as to the timing of the alleged incident:

Q. And what time of day was this?

A. This was four hours before my birthday party.

Q. How did you determine that it was four hours?

A. Because my birthday party was at 6:15 and it was like in the morning.

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(Doc. 6, at PageID 359). Later during cross-examination M.S testified that the incident occurred "a couple hours before" her birthday party. (Doc. 6, at PageID 373). She then corrected herself, saying: "No, it was around, it was around 4 hours, something like that." (Doc. 6, at PageID 374). When asked on cross-examination if she knew "what time in the afternoon" the alleged incident occurred, she said: "No." (Doc. 6, at PageID 374). M.S. did testify that it was the "day of [her] birthday party" and as to the date of party. (Doc. 6, at PageID 374). Further, M.S. testified that she "didn't tell anyone about [the alleged incident] for a long time." (Doc. 6, at PageID 355). When asked why she waited, M.S. testified that she "was afraid [petitioner] was going to punish [her]." (Doc. 6, at PageID 355). M.S. testified that eventually she told her friend. (Doc. 6, at PageID 355). M.S. further testified that the only other people she told about the alleged incident were her mom, the prosecutor, and "Doctor's Officer, Cincinnati Children's." (Doc. 6, at PageID 357, 365-66).

The State then proceeded to call as witnesses the social worker (Linda Smets-Ullrich) at Children's Hospital who interviewed M.S. (see Doc. 6, at PageID 387-421); the investigator at the Prosecutor's Office (Kenneth Dick) who investigated the allegations of sexual abuse against petitioner (Doc. 6, at PageID 423-460); and Heather, the alleged victim in Counts Two and Three of the indictment (Doc. 7, at PageID 472-559).

Following Heather's testimony, the State indicated that it had no additional witnesses. (Doc. 7, at PageID 559). Thereafter, defense counsel moved for acquittal, which the trial court denied. (Doc. 7, at PageID 567-76).

In petitioner's case in chief, defense counsel called Joan Disher (Heather's former mother-in-law) (Doc. 7, at PageID 597-07), John Yates (an ex-boyfriend of Heather's) (Doc. 7, at PageID 627-31), John Dodds (an acquaintance of Heather's) (Doc. 7, at PageID 632-38), Karen Rowe

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(Heather's aunt) (Doc. 7, at PageID 644-49), James Scott (an ex-husband of Heather's) (Doc. 7, at PageID 652-55), Eli Hill (Hill) (an ex-husband of Heather's) (Doc. 7, at PageID 656-62), and Paul Carter, Jr. (Heather's brother and petitioner's son) (Doc. 7, at PageID 664-77) to testify that Heather had a reputation for being untruthful. Hill also testified that he was at petitioner's house on the day of the birthday party from about 10:00 or 11:00 a.m. until the party, which started at about 6:00 p.m., ended. Hill testified that when he left the house after the party he took M.S., M.S.'s sister, and Heather with him. (Doc. 7, at PageID 658-661). Petitioner's son testified generally about his parents' work schedules as of the time of the events alleged in Counts Two and Three of the indictment. (Doc. 7, at PageID 665-67; 672-75). Petitioner's son also testified that "[n]othing about whether [petitioner] was taking a day off would really stick out in [his] mind" (Doc. 7, at PageID 674) "unless [they] had plans to do something" (Doc. 7, at PageID 675).

Petitioner also called Larry Baker (petitioner's pastor) (Doc. 7, at PageID 610-14), Calvin Daniel (an individual who attended church with petitioner) (Doc. 7, at PageID 615-17), James Crase and Sandy Crase (neighbors of petitioner who also share grandchildren with him) (Doc. 7, at PageID 619-26), and Lisa Tumbleson (a former day care provider for M.S. and her sister) (Doc. 7, at PageID 638-43) to testify that petitioner had a reputation for being truthful. Chancy Carter, petitioner's daughter-in-law, testified that she had left her own children with petitioner and his wife. (Doc. 7, at PageID 683). The defense's final witness was Gladys Elaine Carter (Gladys) (petitioner's wife, mother of Heather, and grandmother of M.S.).

In regard to M.S.'s fourth birthday party, the following exchange occurred on direct examination between defense counsel and Gladys:

Q. Was Paul there?

A. He had to work that day.

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Q. When did he get there?

A. He wasn't there until later on in the afternoon.

(Doc. 7, at PageID 697).

Following Gladys's answer, the State objected on the ground that the defense had violated Ohio Criminal Rule 12.1 by failing to file a notice of alibi. (Doc. 7, at PageID 697). The trial court then held a hearing outside the presence of the jury. During the hearing, Gladys stated that petitioner got home from work on the day of the party around 3:30 p.m. (Doc. 7, at PageID 702). Thereafter, the following exchange occurred between defense counsel (Mr. Hapner) and the trial court as to why defense counsel had not disclosed Gladys's testimony as an alibi:

MR. HAPNER: Your Honor, in order to give notice of alibi we would have to know, we know the place and the date.

THE COURT: You've known since yesterday. Did you notify the State of Ohio that you may not have had seven days notice, did you notify the State of Ohio of this?

MR. HAPNER: No, the fact of the matter is it didn't come up until right now. We were aware that he might have worked that morning, but we had no idea until yesterday, we thought actually that the crime was committed at night.

THE COURT: After the birthday party?

MR. HAPNER: Uh-uh.

THE COURT: But as of yesterday you heard the testimony and you knew there was some question that Mr. Carter was not there?

MR. HAPNER: He was there at the birthday party and before on the 26th day of November.

THE COURT: Mr. Hapner, you knew the time, I think you inquired, you asked several questions about the alleged victim of the time and you challenged her on some of her calculations, did you not?

MR. HAPNER: I did, but that's the reason for that, well, first of all it took us by surprise, a great deal of what she testified to took us by surprise. But,

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the time had not come up before, my assumption was it took place in the evening some time.

THE COURT: So, once the time did come up and you were fully aware of it and you cross-examined her on that and you knew that Mr. Carter was not there on certain parts of that date did you notify the State that potentially there was an alibi as required under 12.1?

MR. HAPNER: No, I did not notify the State as to an alibi because I did not then or today consider it an alibi.

THE COURT: All right. An alibi is that a person couldn't have committed a crime because they were not there at the time of the offense, correct?

MR. HAPNER: That's correct.

THE COURT: Is this not the proffered testimony that he didn't get home until 3:00 or 3:30, which certainly he could not have been at the location of the alleged offense at the time of the offense, is that not an alibi?

MR. HAPNER: The State may consider it so, but from what we know it's not an alibi.

THE COURT: What does that mean?

MR. HAPNER: That means that going into this trial seven days prior
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