Richardson v. Smith

DARRYL RICHARDSON, Petitioner, v. KEITH SMITH, WARDEN TOLEDO CORRECTIONAL INSTITUTION, Respondent.

Case No. 3:11CV1217

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF OHIO WESTERN DIVISION

October 30, 2012

JUDGE CHRISTOPHER A. BOYKO

Magistrate Judge George J. Limbert

REPORT AND RECOMMENDATION OF MAGISTRATE JUDGE

On June 2, 2011¹, Petitioner Darryl Richardson ("Petitioner"), acting pro se, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. §2254. ECF Dkt. #1. Petitioner seeks relief for alleged constitutional violations that occurred during his trial in the Lucas County, Ohio Court of Common Pleas, where he was convicted of one count of aggravated murder in violation of Ohio Revised Code ("ORC") §2903.01(A) and (F). ECF Dkt. #16-5 at 165². On January 30, 2012, Respondent Keith Smith, Warden of the Toledo Correctional Institute ("Respondent"), where Petitioner is incarcerated, filed an answer/return of writ. ECF Dkt. #13. Petitioner filed his traverse on July 16, 2012. ECF Dkt. #25. For the following reasons, the undersigned RECOMMENDS that the Court DISMISS the petition in its entirety with prejudice:

I. SYNOPSIS OF THE FACTS

The Sixth District Court of Appeals of Ohio set forth the relevant facts on direct appeal. ECF Dkt. #18-4 at 391-402. These binding factual findings "shall be presumed to be correct," and Petitioner has "the burden of rebutting the presumption of correctness by clear and convincingevidence." 28 U.S.C. §2254(e)(1); Warren v. Smith, 161 F.3d 358, 360-61 (6^th Cir. 1998), cert. denied, 119 S.Ct. 2403 (1999):

On August 18, 2006, Toledo police were summoned to Toledo Spain Park at approximately 1:00 a.m., to investigate a report that a woman had been badly beaten and was lying on the ground in the park. By the time police arrived the victim, Lori Rivera, was being taken to St. Vincent's Hospital. While looking for evidence in the neighborhood, Toledo Police Officer Theresa Sanders noticed a man sitting on the front steps of a nearby apartment complex known as Executive Towers. The man, who identified himself as appellant, Darryl Richardson, told Officer Sanders that he was looking for his girlfriend. Appellant's description of his girlfriend matched that of Rivera.

Appellant let Sanders and Toledo Police Department Detective Scott Smith into Rivera's apartment to look for Rivera's cell phone. Upon entering the apartment, officers noticed a telephone that was broken in half, lying on the floor. Detective Smith also noticed blood on appellant's cheek, and what appeared to be blood on the bathtub.

Seven hours after she was taken to the hospital, Lori Rivera died. On August 28, 2006, the Lucas County Grand Jury indicted appellant on one count of aggravated murder, in violation of R.C. 2903.01(A). On October 16, 2006, the state filed a "Notice of Intent to Use Evidence," pursuant to Evid. R. 12(D). The evidence in question related to a reported incident in May 2006, during which police intervened in an altercation between appellant and Rivera at Rivera's apartment. Appellant filed a motion to suppress evidence of the altercation on October 31, 2006. On November 2, 2006, appellant filed a motion to exclude any evidence related to other crimes, wrongs, or acts not directly related to the incident that led to Rivera's death.

The state filed a response to appellant's motion to suppress on December 12, 2006. A motion to supplement the state's response was filed on January 16, 2007. On January 23, 2007, appellant filed a supplement to his motion to suppress. On March 6, 2007, appellant filed a second motion to exclude evidence of other crimes, wrongs, or acts. On March 22, 2007, the state filed a second notice of its intent to use evidence of an incident that occurred on April 27, 2006, involving appellant and Rivera.

A jury trial was held from April 30 to May 3, 2007, at which testimony was presented by 21 witnesses on behalf of the prosecution. Executive Towers resident Kenneth Harris testified that he saw a person in the park, wearing a white T-shirt and dark pants and with what looked like a short ponytail, hitting the ground with a blunt object at approximately 12:30 a.m. on August 18, 2006. Harris said he saw that same person leave the park and walk toward Executive Towers, after which Harris went to the park and saw a person lying on the ground, bleeding.

Another Executive Towers resident, Joe Jaris, testified that he saw a woman lying on the ground in Toledo Spain Park, with a man standing over her, at about 12:30 a.m. Jaris stated that the man, who was wearing light-colored khaki pants and had dark skin, had his arms raised as if he was "tending to someone who was harmed." Jaris' girlfriend, Amanda Whittington, testified that she arrived home at approximately 12:50 a.m. and saw a person lying on the sidewalk in the park. The person lifted his or her head and put it back down.

Executive Towers resident Jignesh Patel stated that [sic] was talking on his cell phone around 12:45 a.m. as he returned home from seeing a movie. Patel did not testify that he saw anything in the park. Resident Keisha Serrant testified that she came home to her apartment at approximately 12:30 a.m.

Officer Sanders testified at trial that she arrived at the park after 1:00 a.m. on August 18, 2006, and observed bloody clumps of hair and "all kinds of blood around the [victim's] body." In addition, some of Rivera's clothing was missing and she appeared to have been "very badly beaten." Sanders stated that when she saw appellant sitting on the front steps of Executive Towers, he was wearing jeans, a T-shirt, and dark sweatshirt, even though the weather was very warm. Appellant told Sanders he had an argument with his girlfriend, whose description closely matched that of Rivera. Sanders knew appellant was describing Rivera when he accurately described the tattoos on his girlfriend's body. Sanders also testified that, when appellant let the officers into his apartment, they observed a broken telephone on the floor; otherwise, the one bedroom apartment was orderly.

Toledo Police Officer Michelle Roush testified that she went to Executive Towers at the request of her partner, Officers Sanders. Roush stated that appellant let officers into the building by using a key fob.

Toledo Police Detective Steve Applin testified that he went into the apartment, where he observed red spots on the bathtub. Applin also noted that appellant had blood on his face, and he told appellant not to clean the blood off. On cross-examination, Applin stated that appellant was not wearing a white shirt or light pants at the time, and there was no blood on appellant's clothes. On redirect, Applin testified that he did not test the shower drain for blood.

Toledo Police Detective Scott Smith testified at trial that Rivera had already been taken to the hospital when he arrived at the scene, where he observed clumps of hair within a 20-foot radius. Smith stated that he was still processing the crime scene several hours later when he was asked to come up to Rivera's apartment, where he observed blood on appellant's face. Over the objection of the defense, Smith testified that he has processed hundreds of crime scenes involving blood evidence, after which he proceeded to explain the concept of "blood spatter" for the jury. Smith stated that appellant had a substance on his cheek, under his eye, on his chin, and behind his right ear, which later was found to be blood. Smith further testified that, in his opinion, the blood on appellant's face was the result of the medium-to-high velocity impact of blood "spattering."

On cross-examination, Smith testified that he did not collect evidence from the tub drain, and no blood was found on appellant's clothes. Smith stated that he did not do field tests on the swabs from appellant's face, because the test would have used up the relatively small samples.

Toledo Police Officer Duane Poole testified that he was called to the intersection of Front and Main Streets in East Toledo on April 27, 2006, where he observed a female "stumbling" in the street. Poole stated that the woman, Lori Rivera, was bleeding from her nose, mouth and head, and appeared confused and upset. Over objection, Poole testified that Rivera told him that her boyfriend, named "Dee" or "Dean" had "beat her up; " however, Rivera was uncooperative in the investigation and refused medical treatment for her injuries. Poole also stated that Rivera's mother told him Rivera's boyfriend was "Dean Thomas."

Toledo Police Sergeant Norman Giesige testified that, on May 23, 2006, he responded to a call involving a domestic disturbance at 718 Chestnut Street. Upon arrival, Giesige heard a women crying inside the residence, and a male voice saying: "I own you bitch. I'll kill you. I'll bash your f------g skull in" Giesige stated that police broke the door down, and found Rivera, covered in blood and holding appellant at bay with a knife. Upon seeing the police, Rivera said: "Man, I'm glad you guys came because he would have killed me." Appellant responded: "You [police] ain't got nothin on me. I ain't got no blood on me." Giesige testified that, ultimately, charges against appellant were dropped because Rivera did not come to court.

Rivera's mother, Barb Najmi, testified that her daughter was living with appellant, who was also known as "Dee Thompson," at the time of her death. Najmi also testified that on April 27, 2006, Rivera was beaten, after which she had "stomp marks" on her head and face. Najmi also testified that she helped her daughter move into Executive Towers, which had around-the-clock security, to get away from appellant after the incident on May 23, 2006. On cross-examination, Najmi testified that she never saw appellant hit her daughter. Najmi also testified that Rivera had a fight with another female on a prior occasion, during which the woman "jumped" Rivera and hit her.

Rivera's friend, Mary Clark, testified that on August 17, 2006, she was talking to

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