Leonard v. Warden, Ohio State Penitentiary

• Decision Date: 06 March 2013
• Docket Number: Case No. 1:09-cv-056
• Parties: PATRICK LEONARD, Petitioner, v. WARDEN, Ohio State Penitentiary, Respondent.
• Court: U.S. District Court — Southern District of Ohio

PATRICK LEONARD, Petitioner,

v.WARDEN, Ohio State Penitentiary, Respondent.

Case No. 1:09-cv-056

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO WESTERN DIVISION AT CINCINNATI

March 6, 2013

Chief Judge Susan J. Dlott

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This capital habeas corpus case, brought under 28 U.S.C. § 2254, is before the Court for decision on the merits.

Factual Background

The Ohio Supreme Court, considering this case on direct appeal, described its factual background as follows:

[**P1] On July 29, 2000, Patrick T. Leonard, defendant-appellant, followed Dawn Flick, his former fiancee, while she was driving her car, forced her to a stop, and ordered her to return to her home. Leonard followed Flick to her house, and, once inside, Leonard handcuffed Flick, attempted to rape her, and then shot her three times in the head. Leonard was convicted of the aggravated murder, attempted rape, and kidnapping of Flick and was sentenced to death.

[**P2] Leonard and Flick became engaged in the fall of 1995. During their engagement, Leonard fathered a son by Penny McBride. Leonard and Flick ended their engagement in 1998 but continued to date. Leonard also continued his relationship with McBride. Approximately nine months before Flick was murdered,a second child was born to Leonard and McBride. Leonard tried to conceal from Flick and others that he was the child's father.

[**P3] The evidence presented at Leonard's trial indicated that Flick had intended to end her relationship with Leonard. In his confession, Leonard stated that he had a "broken heart" because he was losing Flick. On Friday, July 28, 2000, the day before the murder, Leonard told Alvie Woods, a friend of Leonard's and Flick's, that if he caught Flick "fooling around" with anyone, Leonard would kill somebody. According to Woods, Leonard had said, "If I can't have her, no one can."

[**P4] Flick tended bar at her family's restaurant, Les Flick's Home Like Inn, on the evening of July 28 and early morning of July 29. After the restaurant closed for the night, Flick drove to Snow's Lake Bar to meet some friends. Leonard followed Flick and, according to his confession, "got her to pull over." Leonard then confronted Flick about her earlier statement that she would be staying home for the evening. Leonard left Flick alone after she agreed to call him when she returned home. When she arrived at Snow's, Flick appeared upset, according to Woods, Deborah Schroeder, and Reva Ketterer, and she told them that Leonard had just run her car off the road.

[**P5] When Snow's closed for the night, Flick planned to go to the house of her friend, Ryan Gries. Leonard followed Flick as she drove to Gries's house and again stopped her car. Leonard ordered Flick to return to her home, and he followed her there. Once inside, Leonard handcuffed her wrists. Leonard then pointed a gun at Flick as she called to tell Gries that she was not coming to his house. During their telephone conversation, Gries was able to elicit from Flick that she was with Leonard and was in danger.

[**P6] Gries and his friend Frank Minges rushed to Flick's house. When Leonard heard Gries's truck drive up, he shot Flick three times in the head. He then fired through the door, striking Gries in the chest. Gries and Minges left to call the police, and Leonard fled in his truck.

[**P7] Leonard then called a friend, Sergeant Nick Chaplin, a deputy sheriff in Campbell County, Kentucky. Leonard told Chaplin that he had shot and killed Flick, and he agreed to surrender to Chaplin. Leonard drove to Kentucky, where he was taken into custody.

State v. Leonard, 104 Ohio St. 3d 54 (2004).

Procedural History

Leonard was indicted by the Hamilton County Grand Jury on August 7, 2000, on two counts of aggravated murder with capital specifications, two counts of attempted murder, and one count each of rape and kidnapping (Indictment, Apx. Vol. 1, pp. 22-28¹ ). The guilt phase of the trial commenced May 15, 2001, and the jury found Leonard guilty of attempted rape, two counts of aggravated murder with the capital specification that it had occurred during the course of the attempted rape, felonious assault, and all the charged firearm specifications (Verdicts, Apx. Vol. 3, pp. 210-230).

The penalty phase of the trial commenced May 25, 2001, and the jury returned a death recommendation verdict on May 31, 2001 (Verdict, Apx. Vol. 3, pp. 250-251). The trial judge imposed the death sentence on June 28, 2001 (Judgment Entry, Apx. Vol. 3, p. 261).

Because the murder in issue occurred after January 1, 1995, Leonard's direct appeal was to the Ohio Supreme Court which affirmed the conviction and death sentence. State v. Leonard, 104 Ohio St. 3d 54 (2004).

While his appeal was pending in the Ohio Supreme Court, Leonard filed in the trial court a petition for post-conviction relief under Ohio Revised Code § 2953.21 (Petition, Apx. Vol. 6, pp. 21 et seq.) The trial court denied the petition (Entry, Apx. Vol. 10, pp. 188 et seq.) and Leonard appealed to the First District Court of Appeals which rejected all of Leonard's claims except those relating to the use of a stun belt during trial; those claims were remanded for an evidentiary hearing. State v. Leonard, 157 Ohio App. 3d 653 (Ohio App. 1st Dist. 2004). Onremand and after hearing evidence, the trial court again rejected the stun belt claims (Apx. Vol. 13, pp. 309-320). Leonard appealed, but this time the First District affirmed the dismissal. Ohio v. Leonard, 2007-Ohio-7095, 2007 Ohio App. LEXIS 6214 (Ohio App. 1st Dist. Dec. 31, 2007). The Ohio Supreme Court declined jurisdiction over a further appeal (Entry, Apx. Vol. 15, p. 72) and the United States Supreme Court denied a petition for certiorari, Leonard v. Ohio, 555 U.S. 1075 (2008). Leonard filed the instant Petition July 9, 2009, after this Court appointed counsel (Doc. No. 6). The Return of Writ and Appendix were filed November 23, 2009 (Doc. Nos. 11, 12), and the Reply was filed April 22, 2010 (Doc. No. 17). After completion of discovery and expansion of the record, the Court set a briefing schedule on the merits (Doc. No. 36). Briefs were filed on May 6, 2011 (Petitioner's Brief, Doc. No. 39), July 8, 2011 (Warden's Brief, Doc. No. 41), and August 8, 2011 (Petitioner's Reply Brief, Doc. No. 43). The case therefore became ripe for decision on August 8, 2011.

Leonard pleads the following grounds for relief:

Ground One: Leonard's rights to a fair trial, due process, the presumption of innocence, counsel, and to participate in his own defense were violated when the trial court erred in forcing Leonard to wear a stun belt without adequate justification, thus violating his rights under the Sixth, Eighth, and Fourteenth Amendments.

A. Leonard suffered inherent prejudice when he was forced to wear a stun belt without adequate justification.

B. The stun belt had an adverse impact on Leonard's behavior, depriving him of the physical indicia of innocence, creating a risk of injecting an improper factor into sentencing, and undermining potential mitigation strategies.

C. Leonard's wearing of the stun belt infringed upon his right to counsel and his ability to assist in his own defense.

Ground Two: Leonard's rights to confront witnesses and to a fair trial as guaranteed by the Fifth, Sixth, Eighth, and FourteenthAmendments to the United States Constitution were violated when improper hearsay was admitted into evidence by the trial court.

Ground Three: Leonard's rights to remain silent, counsel, and a fair trial under the Fifth and Fourteenth Amendments to the United States Constitution were violated when the trial court failed to suppress Leonard's statement to the police.

Ground Four: Leonard's rights guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution were violated when he was denied sufficient funds to adequately defend himself against the charges against him.

Ground Five: Leonard's rights to a fair trial and due process under the Fifth, Sixth, Eighth, and Fourteenth Amendments were violated when the trial court admitted gruesome and otherwise prejudicial photographs.

Ground Six: Leonard's rights to a fair trial as guaranteed by the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution were violated when the trial court failed to maintain a complete record of all proceedings in Leonard's trial.

Ground Seven: Leonard's rights to a fair trial and due process under the Fifth, Sixth, Eighth, and Fourteenth Amendments were violated when the trial court committed numerous errors in instructing the jury in the guilt determination phase of Leonard's capital trial.

Ground Eight: Leonard was denied his rights to due process and a fair and reliable determination of his sentence under the Fifth, Sixth, Eighth, and Fourteenth Amendments to the United States Constitution when erroneous instructions were given at the penalty phase of his capital trial.

Ground Nine: The trial court erred by allowing Leonard to be tried, convicted, and sentenced to death on an indictment which charged Leonard with a rape specification based on the accusation that he was "the principal offender" and/or committed the aggravated murder "with prior calculation and design," in violation of the prohibition against duplicitous indictments, and deprived Leonard of his rights to a unanimous verdict, as well as substantive and procedural due process as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution.

Ground Ten: Leonard was denied his right to a fair trial by an impartial jury in his capital case as guaranteed by the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution when the trial court limited trial counsel's ability to conduct voir dire.

Ground Eleven: Leonard's right to a fair trial by an impartial jury under the Sixth, Eighth, and Fourteenth Amendments to the United States Constitution was violated when the trial

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