Greene v. Forshey

• Docket Number: 2:21-cv-0293
• Decision Date: 30 September 2021
• Parties: CHARLES J. GREENE, Petitioner v. JAY FORSHEY, Warden, Noble Correctional Institution, Respondent.
• Court: U.S. District Court — Southern District of Ohio

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CHARLES J. GREENE, Petitioner
v.
JAY FORSHEY, Warden, Noble Correctional Institution, Respondent.

No. 2:21-cv-0293

United States District Court, S.D. Ohio, Eastern Division, Columbus

September 30, 2021

Michael H. Watson District Judge.

REPORT AND RECOMMENDATIONS

Michael R. Merz United States Magistrate Judge.

This habeas corpus action, brought pro se by Petitioner Charles J. Greene under 28 U.S.C. § 2254, is before the Court for decision on the Petition (ECF No. 1), the State Court Record (ECF Nos. 7, 11), the Return of Writ (ECF No. 8), and Petitioner's Traverse (ECF No. 19). The Magistrate Judge reference in the case was recently transferred to the undersigned to help balance the Magistrate Judge workload in the District (ECF No. 16).

Litigation History

On March 12, 2015, a Franklin County, Ohio, grand jury indicted Petitioner on one count of aggravated murder in violation of Ohio Revised Code § 2903.01, one count of murder in violation of Ohio Revised Code § 2903.02, one count of aggravated robbery in violation of Ohio Revised Code § 2911.10, and two counts of kidnapping in violation of Ohio Revised Code §

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2905.01. (Indictment, State Court Record, ECF No. 7, Ex. 1). A trial jury found Greene guilty of murder, aggravated robbery, and the two counts of kidnapping, but not guilty of aggravated murder (Verdicts, State Court Record, ECF No. 7, Ex. 18). After denying a post-trial motion for judgment of acquittal and conducting a sentencing hearing, the trial judge sentenced Greene to fifteen years to life in prison for the murder conviction, ten concurrent years in prison for the aggravated robbery conviction, and ten concurrent years in prison for the kidnapping conviction (Judgment, State Court Record, ECF No. 7, Ex. 23).

The Tenth District Court of Appeals allowed Greene to file a delayed direct appeal, but then affirmed his conviction and sentence. State v. Greene, 2019-Ohio-4010 (10^th Dist. Sept. 30, 2019), appellate jurisdiction declined, 157 Ohio St.3d 1539 (2020).

Greene filed his Petition in this case by depositing it in the prison mailing system on January 186, 2021 (ECF No. 1). Proceeding pro se, he pleads the following grounds for relief:

Ground One: The trial court abused its discretion and denied Petitioner a fair trial and due process of law contrary to the Ohio and United States Constitutions by admitting repetitive, gruesome photographs of the Deceased

Ground Two: The admission of other acts testimony violated Petitioner's rights to due process and a fair trial as guaranteed by the United States and Ohio Constitutions

Ground Three: Petitioner was denied his rights to a fair trial to counsel, to present a defense, and to due process contrary to the Ohio and United States Constitutions when the trial court ordered Petitioner to wear restraints without adequate justification

Ground Four: Petitioner was deprived of his right to a fair trial and due process of law by the introduction of inadmissible community and victim impact evidence

Ground Five: Petitioner was deprived of the effective assistance of trial counsel in violation of Petitioner's rights under the Sixth and Fourteenth Amendments to the United States Constitution; and Section 10 and 16, Article 1 of the Ohio Constitution.

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Ground Six: The trial court violated Petitioner's rights to due process and a fair trial when it entered a judgment of conviction against the manifest weight of the evidence in violation of Petitioner's rights under the United States and Ohio Constitutions.

(Petition, ECF No. 1 PageID 5-20).

Analysis

Claims under the Ohio Constitution

For each of his Grounds for Relief, Greene claims a violation of the Ohio Constitution. However, federal habeas corpus is available only to correct federal constitutional violations. 28 U.S.C. § 2254(a); Wilson v. Corcoran, 562 U.S. 1 (2010); Lewis v. Jeffers, 497 U.S. 764, 780 (1990); Smith v. Phillips, 455 U.S. 209 (1982), Barclay v. Florida, 463 U.S. 939 (1983). "[I]t is not the province of a federal habeas court to reexamine state court determinations on state law questions. In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); see also Elmendorf v. Taylor, 23 U.S. (10 Wheat.) 152, 160 (1825)(Marshall C. J.); Bickham v. Winn, 888 F.3d 248 (6^th Cir. Apr. 23, 2018)(Thapar, J. concurring).

Therefore Greene's claims under the Ohio Constitution should be dismissed without consideration of the merits for failure to state a claim upon which federal habeas corpus relief can be granted.

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Ground One: Gruesome Photographs of the Deceased

In his First Ground for Relief, Greene claims he was denied due process and a fair trial because the trial court admitted repetitive gruesome photographs of the deceased.

This claim was presented to the Tenth District Court of Appeals as Greene's First Assignment of Error and decided by it as follows:

{¶ 56} Under the first assignment of error, appellant asserts the trial court erred by admitting repetitive, gruesome photographs of Seff, thereby denying him a fair trial and due process of law. Appellant notes Detective Bair authenticated photographs he took of the crime scene, including a group of 15 pictures shown to the jury depicting Seff either inside the well or laying on the grass after being removed from the well. Further, appellant notes, Detective Green authenticated pictures he took of Seff at the morgue, and an additional 40 pictures were shown to the jury and admitted into evidence. Appellant maintains only a few photographs were necessary, and that the number of photographs admitted before the jury prejudiced him.

{¶ 57} In response, the state argues the prosecutor worked with defense counsel to limit the number of photographs admitted at trial, and several photographs were withdrawn at defense counsel's request. The state further argues defense counsel did not object to the admission of photographs of Seff's body at the crime scene or the morgue and, therefore, plain error is the appropriate review on appeal.

{¶ 58} In general, “[d]ecisions on the admissibility of photographs are ‘left to the sound discretion of the trial court.'” State v. Gonzalez, 7th Dist. No. 06 MA 58, 2008-Ohio-2749, ¶ 34, quoting State v. Slagle, 65 Ohio St.3d 597, 601 (1992). In this respect, “[t]he test for exclusion of evidence under Evid.R. 403 is that relevant evidence, including photographic evidence, should only be excluded when, ‘its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues, or of misleading the jury.' ” Id. See also State v. Jones, 7th Dist. No. 12 MA 181, 2013-Ohio-5915, ¶ 77 (“in a noncapital case * * * the admission of potentially prejudicial photographs is determined under a discretionary balancing test that requires exclusion only if the

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probative value of the photographs is substantially outweighed by the danger of unfair prejudice”).

{¶ 59} A review of the record indicates defense counsel raised “no objection” to state's exhibit Nos. B1 through B63, including the 15 photographs of Seff, nor did defense counsel object to state's exhibit Nos. C1 through C47, the morgue photographs. (Tr. Vol. IV at 646.) However, before the photographs were submitted to the jury, defense counsel requested the court to limit “the more gruesome photographs” with respect to state's exhibit Nos. C1 through C47 (an issue initially the subject of a pre-trial motion in limine). (Tr. Vol. V at 905.) In response, the prosecutor stated, based on defense counsel's “request with our agreement and at the court's discretion, we will withdraw State's Exhibits C32, C43, C44, C45, C46, and C47.” (Tr. Vol. V at 907.) The prosecutor noted that the withdrawn exhibits “are photographs taken at the morgue by the crime scene unit.” (Tr. Vol. V at 907.) Finally, we note the coroner's autopsy photographs (state's exhibit Nos. E1 through E15) were not admitted into evidence.

{¶ 60} Based on the record presented, appellant has arguably waived all but plain error with respect to the admission of the photographs. In accordance with Evid.R. 103(A), “a party's failure to object to the admission of evidence at trial constitutes a waiver of all but plain error on appeal.” State v. Mills, 5th Dist. No. 2007 AP 07 0039, 2009-Ohio-1849, ¶ 131. Pursuant to Crim.R. 52(B), “[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court.” Under Ohio law, “[p]lain error must be obvious as well as outcome-determinative.” State v. Frazier, 10th Dist. No. 05AP-1323, 2007-Ohio-11, ¶ 37. Thus, “plain error occurs only when, but for the error, the outcome of the trial clearly would have been different.” Id.

{¶ 61} As observed by the state, appellant does not specifically identify which photographs he contends should have been excluded as unfairly prejudicial. The Supreme Court of Ohio “has held that ‘ “the mere fact that [a photograph] is gruesome or horrendous is not sufficient to render it inadmissible if the trial court, in the exercise of its discretion, feels that it would prove useful to the jury.”' ” State v. Williams, 2d Dist. No. 24548, 2012-Ohio-4179, ¶ 46, quoting State v. Frazier, 61 Ohio St.3d 247, 252 (1991), quoting State v. Woodards, 6 Ohio St.2d 14, 25 (1966). In this respect, “[s]uch photographs may help illustrate witness testimony and forensic evidence, or show the nature and circumstances of the crime.” Williams. See also State v. Biros, 78 Ohio St.3d 426, 445 (1997) (although gruesome, photographs of the victim's body were

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probative “of contested issues of intent,

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