Scott v. Anderson

• Decision Date: 30 September 1998
• Docket Number: No. 1:95-CV-2037.,1:95-CV-2037.
• Citation: 58 F.Supp.2d 767
• Parties: Jay D. SCOTT, Petitioner, v. Carl S. ANDERSON, Warden, Respondent.
• Court: U.S. District Court — Northern District of Ohio

Page 767

58 F.Supp.2d 767

Jay D. SCOTT, Petitioner, v. Carl S. ANDERSON, Warden, Respondent.

No. 1:95-CV-2037.

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

September 30, 1998.

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John S. Pyle, Gold, Rotatori, Schwartz & Gibbons, Cleveland, OH, Dale Andrew

Baich, Office of the Federal Public Defender, Phoenix, AZ, Timothy F. Sweeney, Law Offices of Timothy Farrell Sweeney, Cleveland, OH, for petitioner.

Lillian B. Earl, Office of the Assistant, Attorney General, Cleveland, OH, Stuart A. Cole, Charles L. Wille, Office of the Attorney General, Columbus, OH, for respondents.

OPINION & ORDER

O'MALLEY, District Judge.

Jay D. Scott petitions this Court for a writ of habeas corpus, pursuant to 28 U.S.C. § 2254. Scott challenges the constitutional sufficiency of his jury convictions for aggravated robbery and aggravated murder, and also challenges the constitutionality of the trial court's imposition of a sentence of death for his murder conviction.

For the reasons stated below, the Court GRANTS IN PART Scott's petition for writ of habeas corpus. Specifically, the Court finds that Scott's challenges to the constitutionality of his underlying convictions are without merit. The Court further finds, however, that Scott's challenge to the constitutionality of the trial court's imposition of the death penalty is well-taken, because the trial judge improperly instructed the jurors that they must unanimously recommend a life sentence.¹

Accordingly, the Court issues a writ of habeas corpus as follows. The respondent shall either: (1) set aside Scott's sentence of death and instead impose a life sentence; or (2) conduct another sentencing trial. The respondent shall resentence Scott or conduct a new sentencing proceeding within 180 days from the effective date of this Order. On this Court's own motion, execution of this Order and, hence, its effective date, is stayed pending appeal by the parties.

I. Procedural History.

On May 6, 1983, Ms. Vinnie Prince, the owner and operator of the V & E Delicatessen in Cleveland, Ohio, was shot and killed during an attempted armed robbery of her store. On May 17, 1983, petitioner Scott and three others² were indicted by the Cuyahoga County Grand Jury on two counts: (1) aggravated robbery, in violation of Ohio Rev.Code § 2911.01; and (2) aggravated murder, in violation of Ohio Rev.Code § 2903.01. Regarding the murder count, the Grand Jury added two specifications: (a) a death penalty specification, for violation of Ohio Rev.Code § 2929.04(A)(7); and (b) a firearm specification, for violation of Ohio Rev.Code § 2941.141.

Scott entered a plea of not guilty and went to trial on March 12, 1984.³ The jury returned a verdict of guilty as charged on March 23, 1984. The trial court then held a sentencing hearing, pursuant to Ohio Rev.Code §§ 2929.022(A) & 2929.03. On March 28, 1984, the jury returned with the recommendation that Scott be given the death penalty. The trial judge adopted this recommendation and sentenced Scott to death for his murder conviction. In addition, the trial judge sentenced Scott to a term of imprisonment of 7-25 years for his conviction of aggravated burglary, and imprisonment of 3 years for the gun specification.

Scott timely appealed his convictions and also the imposition upon him of the death penalty. The Ohio Court of Appeals affirmed, as did the Ohio Supreme Court. State v. Scott, 1985 WL 9047 (Ohio Ct.App. May 23, 1985); State v. Scott, 26 Ohio St.3d 92, 26 O.B.R. 79, 497 N.E.2d 55 (1986). The United States Supreme Court denied his petition for a writ of certiorari, although two justices (Marshall and Brennan) dissented. Scott v. Ohio, 480 U.S. 923, 107 S.Ct. 1386, 94 L.Ed.2d 699 (1987).⁴

Scott petitioned for post-conviction relief in state court, pursuant to Ohio Rev.Code § 2953.21.⁵ Scott also filed a motion asking the trial judge to recuse himself from the post-conviction proceedings. The day after the State filed a motion to dismiss Scott's post-conviction petition, the state trial court judge denied the motion to recuse and granted the motion to dismiss. Ohio v. Scott, No. CR 182521 (Cuyahoga Cty. Ct. Common Pleas Jan. 28, 1988). On appeal, the Ohio Court of Appeals affirmed the denial of Scott's motion to recuse, but reversed in part the dismissal of Scott's petition and remanded the case for a hearing only on the issue of whether Scott was denied effective assistance of counsel at the mitigation hearing. State v. Scott, 63 Ohio App.3d 304, 578 N.E.2d 841 (1989). The Ohio Supreme Court denied the appeals of this ruling filed by both parties, so the case returned to the trial court for the mandated hearing. State v. Scott, 47 Ohio St.3d 705, 547 N.E.2d 986 (1989). Scott renewed his motion to recuse, but the trial judge implicitly overruled the motion by proceeding to hold the hearing. After holding this hearing, the trial court again denied Scott's petition for post-conviction relief. Scott unsuccessfully appealed this denial. State v. Scott, 1993 WL 267109 (Ohio Ct.App. 8th Dist. July 15, 1993), motion overruled, 68 Ohio St.3d 1426, 624 N.E.2d 1064 (1994). The United States Supreme Court denied Scott's petition for writ of certiorari, with Justice Blackmun dissenting. Scott v. Ohio, 512 U.S. 1213, 114 S.Ct. 2694, 129 L.Ed.2d 825 (1994).

In addition to these post-conviction proceedings, Scott also pursued post-conviction relief pursuant to Ohio v. Murnahan, 63 Ohio St.3d 60, 584 N.E.2d 1204, 1209 (1992), which holds that an appellant who claims he was denied the effective assistance of appellate counsel may obtain relief by applying for delayed reconsideration in the Court of Appeals, or filing a delayed appeal directly to the Ohio Supreme Court. Specifically, Scott first filed a motion to reopen his appeal in the Ohio Court of Appeals. This motion was denied. State v. Scott, Cuyahoga App. No. 48609 (Ohio Ct.App. 8th Dist. Sept. 17, 1992). The Ohio Supreme Court affirmed this decision, with Justice Wright dissenting, State v. Scott, 67 Ohio St.3d 1485, 621 N.E.2d 407 (1993), and the United States Supreme Court denied certiorari, with Justice Blackmun dissenting, Scott v. Ohio, 512 U.S. 1246, 114 S.Ct. 2769, 129 L.Ed.2d 883 (1994). Scott also filed a motion with the Ohio Supreme Court to accept a direct delayed appeal, but the Ohio Supreme Court refused. State v. Scott, 67 Ohio St.3d 1485, 621 N.E.2d 407 (1993).

The State of Ohio then filed a motion to set an execution date. The Ohio Supreme Court granted the motion, setting the date of execution for October 25, 1995. On September 20, 1995, Scott filed in this Court a notice of intent to file a petition for writ of habeas corpus. Scott then moved for a stay of execution, and on October 12, 1995, this Court granted an indefinite stay of execution, pending decision on the instant petition for writ of habeas corpus.

II. Factual History.

When it considered Scott's direct appeal of his convictions and sentence, the Ohio Supreme Court set out the factual history of this case, as revealed by the evidence adduced at Scott's trial. State v. Scott, 26 Ohio St.3d 92, 497 N.E.2d 55, 56-58 (1986). This Court repeats that evidence here, using the Ohio Supreme Court's language.

On May 6, 1983, Vinnie M. Prince, owner and operator of the V & E Delicatessen at East 86th Street and Quincy Avenue in Cleveland, was shot and killed during an attempted armed robbery of her shop. An autopsy later revealed that Prince died from a gunshot wound to the chest.

Octavia Hickman, a nearby resident, testified that while walking back to her home after shopping at the nearby Sav-more Market, she noticed a greenish-blue Cadillac without a rear license plate pull up across from her house. She observed two black males inside the car, one behind the wheel and the other in the back seat. She later observed another black male come over a nearby fence and dive through the open window of the Cadillac. The car then drove away.

Another witness near the delicatessen when the incident occurred was Clifford Roberson. Roberson was heading toward the store with a female companion when they heard a shot fired inside the store. He immediately grabbed his friend and pushed her up against the wall of the building, in an effort to protect her. When he heard a screen door slam, he turned around and saw two black males running from the store. Roberson testified that the taller man was about five feet eleven inches tall, wearing "some type of rag around his head," and holding a long-barreled pistol. Upon opening the store's door, Roberson observed Prince lying "almost to the door as if she was trying to chase them or something." Roberson proceeded to flag down a nearby police car and informed the officers of the situation.

Another witness to this incident, Solomon Smith, testified he saw "two men run across the street, and run down to the corner of Mr. Cooper's house, and turn through the alley, and jump the fence." He described these assailants as two black males, one 5'10½" tall, the other "a little shorter." Smith did not observe anything in either of the fleeing mens' hands.

Sometime after this incident, Detective Robert Moore received a telephone call from Ricky Tramble, and Moore arranged a meeting. Tramble testified at trial that, at this meeting, he informed Officer Moore that on the day Vinnie Prince was killed, he was with Edward O'Neal, Michael Streeter, Danny Jones, and Jay D. Scott; they were all at O'Neal's girlfriend's house, "to get high." Tramble stated he overheard Scott say, "Well, I did what I had to do. She shouldn't have made me move like that. Fuck it. It's over with." Tramble testified that, later that day, Scott told Tramble, "[t]hese niggers don't know what they're doing. * * * [T]hey get to crying about this and crying about that. This is what I do." Scott professed to Tramble he was "a stick-up man." Tramble further...