JUDGE DAVID A. KATZ
MEMORANDUM OPINION
This matter is before the Court upon Petitioner Thomas Michael Keenan's ("Keenan" or "Petitioner") Amended Petition for Writ of Habeas Corpus.
Petitioner, acting pursuant to 28 U.S.C. § 2254, filed an Amended Petition for Writ of Habeas Corpus, challenging his conviction and sentence of death rendered by an Ohio court. (ECF No. 197.) The Respondent, Warden Margaret Bagley ("Respondent"), filed a timely Return of Writ, and Keenan filed an Amended Traverse. (ECF Nos. 218 and 223, respectively.) Respondent then filed a Sur-Reply to Amended Traverse. (ECF No. 231.)
For the following reasons, the Amended Petition for Writ of Habeas Corpus will be granted in part and denied in part.I. Factual History
On October 6, 1998, a Cuyahoga County Grand Jury issued a four-count indictment against Keenan. The indictment charged Keenan with aggravated murder (prior calculation and design) with a felony murder specification in violation of Ohio Revised Code § 2903.01(A), for the murder of Anthony Klann; aggravated murder (during the commission of a felony) with a felony murder specification in violation of Ohio Revised Code § 2903.01(B); kidnapping in violation of Ohio Revised Code § 2905.01; and aggravated burglary in violation of Ohio Revised Code § 2911.11. Keenan entered a plea of not guilty to all charges.
The Ohio Supreme Court set out the following factual history, as adduced by the evidence presented at trial, upon considering Keenan's direct appeal of his convictions and sentence:
Keenan employed Anthony Klann, Edward Espinoza, and Joseph D'Ambrosio in his landscaping business. On either Thursday, September 22, or Friday, September 23, 1988, at about 7:00 p.m., Klann went to "The Saloon," a Cleveland bar, with Paul "Stoney" Lewis, his roommate and friend (and a former employee of Keenan's). Keenan, Espinoza, and D'Ambrosio went to The Saloon after work that same evening.
Keenan and Lewis encountered each other at The Saloon and subsequently left the bar together. They took Keenan's truck to another bar known as Coconut Joe's, which was located in Cleveland Heights. Before going inside, Keenan gave Lewis some cocaine and marijuana, in lieu of seventy dollars Keenan owed Lewis. Later, Klann entered Coconut Joe's. Espinoza and D'Ambrosio arrived sometime after Klann.
According to Lewis, Espinoza had a dispute with Klann at Coconut Joe's and shouted at him several times. One time, Lewis followed them into the men's room; he found Espinoza "hollering" and shaking his finger in Klann's face. (Espinoza admitted that he and Klann went into the men's room together, but denied having a "disagreement" with Klann.) Lewis left Coconut Joe's around midnight. Later, Espinoza was ejected fromthe bar. Keenan, Espinoza, and D'Ambrosio left Coconut Joe's together at approximately 1:30 or 2:00 a.m. Keenan drove away, while Espinoza and D'Ambrosio walked from the bar to D'Ambrosio's apartment.
Before Espinoza and D'Ambrosio went inside the apartment, Keenan drove up in his truck. Keenan accused Lewis of stealing "dope" from his truck and asked Espinoza and D'Ambrosio to help look for Lewis. They agreed. In D'Ambrosio's apartment, Espinoza armed himself with a baseball bat, while D'Ambrosio grabbed a knife. About 2:00 or 2:30 a.m., they joined Keenan in the truck and the three of them cruised the so-called "Little Italy" area of Cleveland, looking for Lewis.
James Russell, an acquaintance of Keenan's, lived with Carolyn Rosell in an apartment in Little Italy. About 3:00 a.m., Russell and Rosell were awakened by someone banging on their door. They let Keenan, D'Ambrosio, and Espinoza into their apartment. Keenan asked where Lewis was and threatened to kill Lewis. Keenan told Russell that Lewis "had ripped him off." After about fifteen minutes, Keenan and his men left.
Keenan, still searching for Lewis, drove up Mayfield Hill, where he saw Klann walking in the opposite direction. According to Espinoza, there was a "light rain, drizzle" falling "off and on." Keenan pulled over and hailed Klann. When Klann approached, Keenan grabbed him and forced him into the truck.
Keenan, Espinoza, and D'Ambrosio repeatedly asked Klann where Lewis was, threatening "to hurt him" if he did not tell. Klann insisted that he did not know. During this interrogation, Espinoza struck Klann in the head with the baseball bat. Klann did tell the group where he and Lewis lived. Keenan drove there, and he and Espinoza knocked on what Keenan thought was Lewis's door.
Memsel Dendak and Adam Flanik lived together in the same apartment complex as Lewis and Klann. About 3:00 a.m., they were awakened by "shouting and screaming" outside. Dendak heard someone yell, "I want my dope" (or "my coke"). Flanik went out to investigate and found Espinoza pounding on someone's door. Espinoza asked **936 Flanik where "Stoney" (Lewis) lived. Espinoza then went to Lewis's door and pounded on it, saying, "Where is Stoney? I'm going to kill him."
Keenan got out of the truck and also began to pound on Lewis's door. Flanik later described Keenan's behavior as "very violent." Keenan informed Flanik that he was looking for Lewis because Lewis had stolen something.
Klann stayed in the truck. Flanik looked over and saw D'Ambrosio, who was sitting behind Klann, holding a knife to Klann's neck. Flanik thought Klann "looked intimidated by Joe, because he wasn't turning his head to see who was behind him * * *." Klann also looked to Flanik as though he had been "roughed up."
Finally, Espinoza gave up pounding on the door and proceeded to kick it until it came open. He and Keenan entered Lewis's apartment, looked around briefly, then got back in the truck and left.
Keenan drove back to Russell's residence. Espinoza went to the door and asked Russell if Lewis had been there. He told Russell to tell Lewis that Espinoza "had a contract out on him." He then returned to the truck.
Keenan then drove to Doan's Creek, where he pulled the truck over. Holding D'Ambrosio's knife, Keenan ordered Klann out of the truck. As they stood at the edge of the creek, Keenan asked Klann for the last time where Lewis was. Klann still did not know. Keenan ordered Klann to tilt his head back. Keenan then slashed Klann's throat, led him to the creek, and pushed him in. Klann got up and was "stumbling" around. Keenan said to D'Ambrosio, "Finish him." D'Ambrosio took the knife and jumped into the creek. Espinoza heard splashing and heard Klann yell, "[P]lease don't kill me."
On Saturday, September 24, a jogger found Klann's body in Doan's Creek. The next day, Dr. Elizabeth Balraj, the county coroner, performed an autopsy on the body. She found that Klann's throat had been slashed, his windpipe perforated. Klann had also been stabbed three times in the chest. Balraj was unable to estimate a time of death.
State v. Keenan, 81 Ohio St. 3d 133, 133-36, 689 N.E.2d 929, 935-37 (Ohio 1998).
Many additional facts have been adduced during the course of this proceeding, primarily through various expansions of the record. Although not summarized here, those facts will be described below to the extent relevant to the Court's analysis.I. Procedural History
This case has a long and complex history. Keenan's trial was commenced on January 23, 1989. A jury returned a verdict of guilty on all four counts on January 31, 1989. The penalty phase of the trial commenced on February 13, 1989. On February 15, 1989, the jury recommended that Keenan be sentenced to death. The trial court agreed with the jury's recommendation and sentenced Keenan to death on March 1, 1989.
Keenan filed a timely appeal of the trial court's decision to the Eighth District Court of Appeals, raising twelve assignments of error. The court of appeals affirmed the trial court's decision on December 27, 1990. State v. Keenan, No. 57565, 1990 WL 212119 (Ohio App. Dec. 27, 1990). The Ohio Supreme Court reversed that decision, however, based upon prosecutorial misconduct, and remanded the case to the trial court for a new trial. State v. Keenan, 66 Ohio St. 3d 402, 613 N.E.2d 203 (Ohio 1993).
Keenan was retried on the original indictment beginning on April 21, 1994. He was represented by Russo Rocco and James Kersey. After the trial concluded on May 3, 1994, Keenan again was convicted on all counts on May 5, 1994. The penalty phase of the trial commenced on May 12, 1994, and the jury sentenced him to death on May 13, 1994. The trial court agreed with the jury's recommendation and sentenced Keenan to death that same day. He also received consecutive sentences of 15 to 25 years for the kidnapping charge and 15 to 25 years for the aggravated burglary charge.
Keenan filed a timely appeal of the trial court's decision to the Eighth District Court of Appeals, represented by Paul Mancino, raising thirty-nine assignments of error as follows:
1. Defendant was denied the right to have his own counsel as guaranteed by the Ohio and Federal constitution.
2. Defendant was denied due process of law when the court would not permit the defendant to fully participate as co-counsel to include argument to the jury and trial preparation participation.
3. Defendant was denied due process of law when the prosecutor was permitted to constructively amend the indictment by altering the date of the offense.
4. Defendant was denied due process of law when the court refused to record the entire proceedings.
5. Defendant was denied due process of law when the court permitted hearsay evidence from Det. Leo Allen.
6. Defendant was denied due process of law when the court permitted the coroner to testify concerning possibilities that the knives in evidence could have caused the wounds on the decedent.
7. Defendant was denied due process of law and a fair trial when the court brought to the attention of the jury the
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