Simpson v. Jackson

• Decision Date: 10 November 2014
• Docket Number: CASE NO. 2:06-CV-127
• Parties: DONOVAN SIMPSON, Petitioner, v. WANZA JACKSON, Respondent.
• Court: U.S. District Court — Southern District of Ohio

DONOVAN SIMPSON, Petitioner, v. WANZA JACKSON, Respondent.

CASE NO. 2:06-CV-127

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO EASTERN DIVISION

November 10, 2014

JUDGE EDMUND A. SARGUS, JR.

MAGISTRATE JUDGE ABEL

REPORT AND RECOMMENDATION

Petitioner Donovan Simpson, a state prisoner, brings this action for a petition for a writ of habeas corpus under 28 U.S.C. § 2254. This case arises out of Simpson's convictions for aggravated murder, murder, five counts of attempted murder, aggravated arson, and five counts of felonious assault. He maintains that his convictions violated the Constitution because the prosecution introduced statements obtained in violation of Miranda and the Fifth Amendment during interrogations on April 24 and 27 and June 16 and 20, 2000. This court denied the petition.¹ The United States Court of Appeals for the Sixth Circuit reversed, holding that the admission of statements Simpson made on April 24 and 27 and June 20, 2000 was contrary to and an unreasonable application of Supreme Court precedent. It concluded that petitioner was entitled to the issuance of a writ of habeas corpus as to his convictions for aggravated murder, murder, and attempted murder, but affirmed the denial of the petition as to his convictions for aggravated arson and felonious assault. Simpson v. Jackson, 615 F.3d 421, 423, 439, 441-42, 444-45 (6th Cir. 2010). The United States Supreme Court granted Simpson's petition for writ of certiorari,vacated judgment, and remanded to the Court of Appeals for further consideration in light of Howes v. Fields, 132 S.Ct. 1181, 565 U.S. ___ (2012). This matter is now before the district court on remand from the United States Court of Appeals for the Sixth Circuit. Donovan v. Wanza Jackson, Warden and Michael Sheets, Warden, No. 08-3224 (6th Cir. June 28, 2013) See, Doc. 65.

For the reasons that follow, the Magistrate Judge concludes that Howes does not alter the outcome of this case and therefore RECOMMENDS that the petition for a writ of habeas corpus be GRANTED as to petitioner Simpson's convictions for aggravated murder, murder, and attempted murder, and that these convictions be VACATED subject to the State of Ohio commencing a re-trial on these charges within 90 days. The Magistrate Judge further RECOMMENDS that the petition be DENIED as to petitioner Simpson's convictions for aggravated arson and five counts of felonious assault and that he be required to serve the remainder of his sentences on those charges.

FACTS UNDERLYING CRIMINAL CONVICTIONS:

The Ohio Tenth District Court of Appeals's July 30, 2002decision affirming Simpson's convictions summarized the facts and procedural history of this case as follows:

In the early morning hours of October 27, 1997, a fire broke out at 151 South Wheatland Avenue in Columbus, Ohio. At the time, Aleta Bell and three of her four children, Shenequa, age five, Elijah, age three, and Myesha, five-months old, were asleep in the house. Also sleeping in the house were two men, Terrance Hall and Gary Williams, Myesha's father. Hall was awakened early that morning by a loud crash of glass. He found the house engulfed in flames. After running out of the house, Hall was able to wake Aleta Bell and Williams, who were sleeping with Myesha in the same room. They were able to get out of the house. Unfortunately, they were not able to reach the two children who were sleeping in a back bed-room. Members of the Columbus Fire Department ("CFD") arrived on the scene and were able to find the two children and take them directly to Children's Hospital. However, as a result of the injuries sustained in the fire, Shenequa Bell died days later. Elijah Bell survived, but sufferedserious injuries.

By indictment filed August 24, 2000, appellant was charged with thirteen counts relating to the fire at 151 South Wheatland Avenue. Appellant was charged with two counts of aggravated murder for the death of Shenequa Bell, in violation of R.C. 2903.01. Both counts contained death penalty specifications pursuant to R.C. 2929.04(A). Appellant was also charged with five counts of attempted murder of the five other people in the house, in violation of R.C. 2923.02 and 2903.02; one count of aggravated arson, in violation of R.C. 2909.02; and five counts of felonious assault, in violation of R.C. 2903.11. Appellant entered a not guilty plea to all of the charges and proceeded to a jury trial.

Before his trial, appellant sought to suppress four verbal statements he made to police officers prior to being indicted. Two of these statements, one on April 24 and another on April 27, 2000, were made to officers while appellant was incarcerated in the Licking Southeastern Correctional Institution for an unrelated crime. Both of these statements were recorded. No Miranda warnings were given to appellant before he made these statements. The other two statements, one on June 16 and one on June 20, 2000, were made at Columbus Police Headquarters. Both of these statements (which were essentially confessions) were videotaped. Appellant was read his Miranda rights before these statements were made and he signed a form indicating he understood and waived those rights. After an evidentiary hearing, the trial court denied his motion thereby permitting the state to introduce these statements into evidence at trial.

The following key testimony was presented during the state's case. CFD Battalion Chief Tom Hackett was the first fire fighter to arrive at the scene of the fire. He testified that, when he arrived, there was a male and a female with a small infant on the front roof of the house. He stated that, when water from the fire hoses hit the fire, the fire flashed back, which was not typical. Hackett testified that a fire flashback under these circumstances was consistent with the presence of a flammable liquid. It was his impression from the size of this fire and the time it took to extinguish it that the fire was intentionally set.

After the fire was extinguished, Kenyon Beavers, a dog handler for the CFD, testified that he went to the scene with his dog to search through the first floor of the house for traces of flammable liquids. Beavers and the dog walked through the first floor from the back to the front of the house. In the front of the house, in the living room right inside a large window, the dog gave a "primary alert" (i.e., an indication that the dog detected the presence of a flammable liquid). After searching the rest of the room, Beavers took the dog outside, where the dog gave another "primary alert,"

this time on the porch directly outside the large window in the living room. On cross-examination, Beavers admitted that surface samples taken from the areas where his dog had indicated the primary alerts did not show the presence of an accelerant when tested.

Billy Reedus, a CFD investigator who investigated the fire, testified that he arrived at the scene after the fire was extinguished. Upon arrival, it was obvious to him that the fire damage was centered in the living room and that the fire's point of origin was in that room. Specifically, he testified that the fire started in the area below the large window in the living room. He also saw a pattern of fire damage in the house that was consistent with the presence of some sort of accelerant at the origin of the fire. He then eliminated likely accidental causes of a fire, such as electrical, weather and cigarettes, to arrive at his conclusion that the fire was intentionally set. He further concluded that the fire had been set by a Molotov cocktail that was thrown through the large window in the living room. Reedus testified that a Molotov cocktail consists of a glass bottle filled with a flammable liquid, such as gasoline or alcohol. A wick of some sort is then placed in the bottle and set on fire. The bottle is thrown at the structure causing the bottle to break on impact. The fire spreads through the spreading accelerant. Although he could find no definite physical evidence of a Molotov cocktail, Reedus concluded that one had been thrown through the large living room window to start the fire.

Detective Edward Kallay, Jr., a homicide detective who was the primary investigator in this matter for the Columbus Police Department ("CPD"), testified that, in January 2000, he had a conversation with a man named Adiyat Diggs. Based upon that conversation, Kallay believed that appel-lant might have information about a suspect who the police thought could have been involved in starting this fire. On April 24, 2000, Detective Kallay and Federal Special Agent Ozbolt spoke with appellant at the Southeastern Correctional Institution in Licking County where appellant was incarce-rated. Their conversation was recorded.

Detective Kallay testified that appellant told him that he had picked up a man named Daryl "Pumpkin" Kelly the day before the fire and took him to a bar to meet a woman named Leah.^FN1 Appellant waited outside while Daryl Kelly went into the bar. When Kelly and Leah came out, appellant heard Leah tell Kelly to "take care of this for me." Appellant told Detect-ive Kallay that he got a call from an excited Daryl Kelly the next morning who said he needed another ride. When appellant picked Kelly up, he said that Kelly smelled like gasoline. Daryl "Pumpkin" Kelly was a suspect even before appellant provided this information.

FN1. Leah was Leah Smith, a former friend of Aleta Bell who lived in the other half of the house at 151 South Wheatland Avenue. Days before the fire, Leah had moved out of the house. The two had been involved in a dispute earlier in the summer of 1997, when Aleta Bell accused Leah of forging a driver's license with Aleta's personal information but with Leah's picture. When Aleta found the driver's license, she took it back. Leah later broke into Aleta's home and stole the driver's license. Leah was charged with and pled guilty to one count of burglary arising from that incident.

Three days later, on

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