Kennedy v. Coleman

Decision Date29 December 2016
Docket NumberCase No. 1:15-cv-684
PartiesKENNETH KENNEDY, Petitioner, v. JOHN COLEMAN, Warden, Toledo Correctional Institution, Respondent.
CourtU.S. District Court — Southern District of Ohio

District Judge Sandra S. Beckwith

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This is a habeas corpus case under 28 U.S.C. § 2254. The Petition was filed in the Northern District of Ohio and transferred to this Court by Magistrate Judge Kathleen Burke after the Return of Writ was filed (Transfer Order, ECF No. 11). After transfer, the case was assigned to Magistrate Judge Karen Litkovitz who granted Petitioner permission to file an Amended Traverse (Order, ECF No. 15). Earlier this month, the case was transferred to the undersigned as part of an effort to balance the workloads of Magistrate Judges in the Western Division (ECF No. 21). The case is ripe for decision on the Petition (ECF No. 1), the Return of Writ and State Court Record (ECF Nos. 7, 8), and the Amended Traverse (ECF No. 20).

Petitioner pleads the following grounds for relief:

Ground One: The trial court erred as a matter of law by allowing the state to introduce hearsay statements which violated appellant's right to a fair trial and his right to confront his accusers in violation of Federal Law and his Constitutional rights.
Supporting Facts: Because "hearsay" under Rules of Evidence, Rule 801(C), is rarely admissible at trial to prove or disprove facts relevant to material issues in the case, the Petitioner would argue that the trial court impermissably [sic] allowed Officer Schultz to testify as to what Mr. Stuckey said about who shot him, that his statement was not a dying declaration". under the exception to the hearsay rule codified in Evid.R. 804(8)(2) because he his statements were not made under a "sense of impending death", and therefore should not have been permitted under the law.
Ground Two: The trial court erred as a matter of law by overruling appellant's motion for relief from prejudicial joinder, denying the Petitioner of a fair trial.
Supporting Facts: The Petitioner was charged with two or more offenses in his indictment; however, they were not all of the same or similar character, based upon the same act or transaction, based on two or more acts connected together or constituting parts of a common scheme or plan or part of a course of criminal conduct. This violates Ohio Crim.R. 8(A). Also, assuming one of these factors do apply, if it appears that a defendant or the State will be prejudiced by such joinder, the court shall order separate trials or provide such other relief as justice requires, pursuant to Crim.R. 14.
Ground Three: The trial court erred as a matter of law be [sic] permitting other acts testimony into evidence thus prejudicing appellant's right to a fair trial.
Supporting Facts: In this case, Mr. Johnson, a witness for the State, was permitted to testify that Petitioner bragged to him about being a serial killer and having "bodies on his belt." This testimony was prejudicial and not relevant to prove Appellant's guilt. Therefore, because Ohio Evidence Rule 404(B) does not permit evidence of other crimes, wrongs or acts to be admissible to prove character of the person in order to show that he acted in conformity therewith the Petitioner's rights to a fair trial were violated.
Ground Four: The evidence was insufficient as a matter of law to sustain appellant's convictions.
Supporting Facts: The Petitioner asserts that the convictions were not based on sufficient evidence as a matter of law, and any reasonable trier of fact could not have found him guilty beyond a reasonable doubt. The State, in this matter, failed to prove beyond a reasonable doubt that he committed these offenses. There was nophysical evidence linking him to any of the scenes nor was there any eyewitness testimony. The only evidence presented by the State to implicate Mr. Kennedy as the shooter was testimony of five convicted felons, several of whom were serving time for violent offenses, and all of whom had something to gain by their testimony. The testimony was all based on alleged statements made by the Petitioner to these witnesses. There was also insufficient evidence to prove beyond a reasonable doubt that Mr. Kennedy purposely caused the death of the victims.

(Petition, ECF No. 1.)

Procedural History

Mr. Kennedy was indicted by a Hamilton County grand jury on fifteen counts, including two counts of aggravated murder, four counts of murder, four counts of felonious assault, four counts of having weapons under disability and one count of aggravated robbery. All counts had firearm specifications except the four counts of having weapons under disability. Because the offenses arose from separate incidents, Kennedy sought their severance, which was denied. He was found guilty on all counts and specifications and sentenced to two terms of life imprisonment without the possibility of parole.

With the assistance of new counsel, Kennedy appealed to the First District Court of Appeals raising five assignments of error:

1. The trial court erred as a matter of law by overruling appellant's motion for relief from prejudicial joinder.

2. The trial court erred as a matter of law by allowing the state to introduce hearsay statements which violated appellant's right to fair trial.

3. The trial court erred as a matter of law by permitting other acts testimony into evidence thus prejudicing appellant's right to a fair trial.

4. The evidence was insufficient as a matter of law and/or against the manifest weight of the evidence to sustain appellant's convictions.

5. The trial court erred as a matter of law by improperly sentencing appellant.

The First District overruled the assignments of error except for a remand for proper findings for consecutive sentences, an issue not before this Court. State v. Kennedy, 2013-Ohio-4221, 998 N.E.2d 1189, 2013 Ohio App. LEXIS 4431 (1st Dist. Sep 27, 2013), appellate jurisdiction declined, 138 Ohio St. 3d 1414 (2014). In its opinion, the First District found the following background facts from the evidence presented at trial:

A. Gambling-Apartment Shootings
[*P3] In the early morning of March 27, 2006, Janie Matthews, known as "Bedrock," Rodney Turnbow, Derrick Dumas, and others were playing cards for money in Matthews's second-floor apartment in the Walnut Hills area of Cincinnati. According to Dumas, Jaydee Thompson had participated in the game earlier in the night.
[*P4] About 30 minutes after Thompson left, at least two armed and masked male assailants entered Matthews's apartment building. One of the assailants knocked on Matthews's door. After Matthews had partially opened the door, he shot her with a 9-mm semiautomatic weapon and forced his way in. He then fired at Turnbow with the same gun, striking him in the head, and robbed everyone inside the apartment, including Dumas.
[*P5] Later, as the assailants fled down the stairs of the apartment building, they encountered Deandre Thomas. Thomas recognized Thompson as one of the assailants, and Thompson shot Thomas in the face.
[*P6] When the police arrived, they found Matthews just inside the apartment, near the door, and Turnbow nearby. Both died as a result of their gunshot wounds. The police found Thomas on stairsof the apartment building. He survived and identified Thompson as the man who had shot him. Ballistic-test results on the cartridges that the police found at the crime scene demonstrated that two firearms had been used. The cartridges found inside Matthews's apartment and just outside of her door had been fired from one firearm, but the cartridges found in the stairwell on the ground floor and on the steps had been fired from another.
[*P7] Several weeks after the shootings, Kennedy told Derrell Anderson about "Bedrock's" shooting, when they were both passengers in the car of man named Jaleel. Anderson and Jaleel had picked up Kennedy from a parking lot in Walnut Hills and were taking him to Burnet Avenue in Avondale because Kennedy said he needed to escape from "guys" in the Walnut Hills neighborhood who were after him because he had killed Matthews. Kennedy explained to Anderson the details of the crime, including that he had shot Matthews as she tried to shut the door on him, that he had taken the gambling money, that he had shot another man inside the apartment, and that "JayDee" had shot someone in the face on the stairs.
[*P8] While in the Hamilton County Justice Center, Kennedy told two inmates, Tobias Johnson, who knew Matthews, and Jermaine Beard, about his role in the gambling-apartment shootings and provided the details of the crime. Johnson testified that Kennedy had told him that Thompson had been gambling at Matthews's apartment, and that Thompson had set up the robbery, because he owed Kennedy a favor for previously turning him onto a "lick." Kennedy said that Matthews had come to the door after he knocked on it, and that he had shot her when she tried to shut it. He also admitted that he had shot Turnbow because he tried to run, and that he had "robbed everybody." Kennedy credited his accomplice Thompson with shooting a man in the face on the stairs as they were leaving.
[*P9] Beard testified that Kennedy had told him that he had pretended to be "JayDee" to enter a gambling apartment, that he had shot the lady who opened the door when she tried to close it on him, and that he had shot a man named "Rodney" and had taken about $1500 from him.
B. Vine-Street Shootings
[*P10] On June 23, 2006, Dwayne Stuckey was shot on Vine Street in the Over-the-Rhine area of Cincinnati. The shooting began in the street, but ended inside a Cricket Store, which was located next to a Kroger store. Stuckey was shot six times andeventually died from his wounds. Phillip Simmons, a bystander on the street, was injured by a stray bullet.
[*P11] Officer Shultz, on bike patrol nearby, heard the gunfire and rushed to the scene. He approached Stuckey
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