Drummond v. Houk

• Decision Date: 31 December 2010
• Docket Number: Case No. 4:07CV1776.
• Parties: John DRUMMOND, Petitioner,v.Marc HOUK, Respondent.
• Court: U.S. District Court — Northern District of Ohio

761 F.Supp.2d 638

John DRUMMOND, Petitioner,

v.Marc HOUK, Respondent.

Case No. 4:07CV1776.

United States District Court, N.D. Ohio, Eastern Division.

Dec. 31, 2010.

Alan C. Rossman, Office of the Federal Public Defender, David L. Doughten, Cleveland, OH, for Petitioner.Justin M. Lovett, Brenda S. Leikala, Charles L. Wille, Office of the Attorney General—Capital Crimes Section, Columbus, OH, for Respondent.

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: (1) aggravated murder of Jiyen 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.

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 extremely 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...