Schaaf v. Shoop

GABRIEL SCHAAF, Petitioner, v. TIM SHOOP, Warden, Chillicothe Correctional Institution, Respondent.

Case No. 3:20-cv-090

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

October 21, 2020

District Judge Thomas M. Rose

Magistrate Judge Michael R. Merz

REPORT AND RECOMMENDATIONS

This habeas corpus case, brought pro se by Petitioner Gabriel Schaaf, is before the Court for decision on the Petition (ECF No. 1), the State Court Record (ECF No. 8), the Return of Writ (ECF No. 9), and Petitioner's Reply (ECF No. 14).

Litigation History

On July 10, 2017, a Preble County Grand Jury indicted Petitioner on one count of tampering with evidence, one count of murder, and one count of aggravated murder in connection with the December 26, 2016, death of his adult son. (Indictment, State Court Record ECF No. 8, Ex. 1). A jury convicted Schaaf on all three counts and he was sentenced to twenty-five years to life imprisonment. The Ohio Twelfth District Court of Appeals affirmed the conviction. State v. Schaaf, 2019 Ohio 196 (Ohio App. 12^th Dist. Jan. 22, 2019), appellate jurisdiction declined, 155 Ohio St. 3d 1439 (2019).

Schaaf then filed his Petition for Writ in this Court, pleading the following grounds for relief:

Ground One: Schaaf was deprived of a fair trial and due process by the prosecutor's misconduct.

Supporting Facts: The prosecutor committed misconduct and violated petitioner's right to a fair trial and due process of law by commenting of petitioner's pretrial silence and his invoking his right to remain silent.

Ground Two: The trial court violated petitioner's constitutional rights by allowing pretrial statements made in violation of Miranda rights.

Supporting Facts: The petitioner's rights against self incrimination and right to remain silent were violated by the state allowing the use of pretrial custodial interview statements made without Miranda warning.

Ground Three: The evidence is constitutionally insufficient to support petitioner's conviction for aggravated murder.

Supporting Facts: There is insufficient evidence to support petitioner's conviction for the offense of aggravated murder in this case, where several of the facts alleged in this case are wrong and not supported by the evidence.

(Petition, ECF No. 1, PageID 5, 7, 8)

Analysis

Ground One: Prosecutorial Misconduct

In his First Ground for Relief, Schaaf claims he was deprived of a fair trial by the prosecutor's comment on his pre-trial silence and his invoking his right to remain silent.

Respondent asserts Ground One is procedurally defaulted because Schaaf's attorney made no contemporaneous objection to either instance of asserted misconduct (Return of Writ, ECF No. 9,PageID 711.) Schaaf replies that although the court of appeals discussed procedural default, it proceeded to decide the relevant claims on the merits and thus the claimed procedural default was overlooked by the Twelfth District (Reply, ECF No. 14, PageID 764).

Schaaf raised his claims of prosecutorial misconduct as his First Assignment of Error on direct appeal and the Twelfth District decided it as follows:

[*13] SCHAAF WAS DEPRIVED OF A FAIR TRIAL DUE TO THE PROSECUTION COMMENTING ON SCHAAF INVOKING HIS RIGHT TO REMAIN SILENT AND RIGHT TO COUNSEL.

[*14] Schaaf argues that the state deprived him of a fair trial when the prosecutor, during voir dire, stated that there would be no trial if there was no dispute as to what occurred between Schaaf and Jonathon. Schaaf also argues that the state deprived him of a fair trial when a detective testified that Schaaf told the police he would not speak to them on the advice of counsel. Schaaf concedes that he did not object to either claimed instance of error and is limited to a review for plain error.

[*15] Pursuant to Crim.R. 52(B), "[p]lain errors or defects affecting substantial rights may be noticed although they were not brought to the attention of the court." Plain error exists where there is an obvious deviation from a legal rule that affected the defendant's substantial rights by influencing the outcome of the proceedings. State v. Barnes, 94 Ohio St.3d 21, 27, 2002- Ohio 68, 759 N.E.2d 1240 (2002). "Plain error does not exist unless it can be said that but for the error, the outcome of the trial would clearly have been otherwise." State v. Biros, 78 Ohio St.3d 426, 436, 1997-Ohio-204, 678 N.E.2d 891 (1997). This court should notice plain error with the utmost caution, under exceptional circumstances and only to prevent a miscarriage of justice. State v. Widmer, 12th Dist. Warren No. CA2011-03-027, 2012-Ohio-4342, ¶ 84.

[*16] To demonstrate that the state deprived him of a fair trial, Schaaf must demonstrate that the prosecutor's comments or actions were improper and prejudicially affected his substantial rights. See State v. Elmore, 111 Ohio St. 3d 515, 2006-Ohio-6207, ¶ 62, 857 N.E.2d 547. In making such a determination, the focus is upon the fairness of the trial, not upon the culpability of the prosecutor. State v. Gray, 12th Dist. Butler No. CA2011-09-176, 2012-Ohio-4769, ¶ 57. A finding of prosecutorial misconduct will not be grounds for reversal unless the defendant can establish that he has been denied afair trial because of the prosecutor's actions. See State v. Smith, 12th Dist. Warren No. CA2017-02-013, 2017-Ohio-7540, ¶ 29. During voir dire, the prosecutor stated:

Does everyone understand that if everyone in this room agreed about what happened on December 26th, 2016, there wouldn't be a need for a trial? In other words, there likely will be a conflict of evidence in this case. Is there anyone who doesn't understand that?

And is there anyone who for any reason does not feel that they could be part of that function of a trier of fact and separate what they think the truth is and what they think the lies are and reach a fair and impartial verdict?

[*17] These statements were appropriate and accurately relayed to jurors that facts are contested in every trial. The remarks appeared designed to prepare jurors for the unique task of resolving conflicts in evidence in rendering a verdict. The questions posed by the prosecutor were neutrally phrased and did not insinuate that only a guilty or dishonest individual would seek a trial.

[*18] Next, Schaaf argues that the prosecutor committed misconduct by eliciting testimony from a detective concerning Schaaf's right to remain silent. During direct examination, the prosecutor asked the detective what the status of the police investigation was prior to Schaaf's admission to involvement in the homicide. The detective's response explained the various reasons why law enforcement focused its effort on Schaaf as the primary suspect. Those reasons included that the killer had draped a towel over the body, indicating a personal relationship with Jonathon, that the blood on scene appeared coagulated and inconsistent with Schaaf's timeline, Schaaf's demeanor, his failure to contact law enforcement for updates on the investigation for over two weeks following the death, and Schaaf's cancellation of a police interview. With respect to this cancellation, the detective stated that Schaaf called and left a voice message stating that he had talked to his attorney, who advised him not to speak to the police.

[*19] The use of a defendant's pre-arrest silence as substantive evidence of guilt violates the Fifth Amendment privilege against self-incrimination. State v. Leach, 102 Ohio St.3d 135, 2004-Ohio-2147, 807 N.E.2d 335, syllabus. In Leach, the Ohio Supreme Court held, in limited circumstances, testimony concerning pre-arrest silence is appropriate if it is introduced as evidence of the "course of the investigation." Id. at ¶ 32. The court concluded that while itwas improper to admit the investigator's direct testimony regarding the defendant's decision to exercise his right to silence through the invocation of counsel over the telephone, the investigator's testimony regarding the defendant's failure to keep his scheduled appointment with the police was "legitimate." Id.

[*20] In this case, detective's testimony on direct examination concerning Schaaf cancelling an appointment based on his attorney's advice not to speak with police was the state's use of pre-arrest silence as substantive evidence of appellant's guilt and was error. [footnote: To be clear, there is no indication that the prosecutor intended to elicit this testimony. The detective provided a lengthy response to a general question.] However, assuming a Fifth Amendment violation occurred, this court would not find that Schaaf was deprived of a fair trial. As will be addressed below, the murder verdicts were supported by substantial evidence of Schaaf's guilt. Compare Leach at ¶ 29 (noting that the defendant was convicted on no physical evidence and only on the credibility of the state's complaining witnesses). Moreover, any error would be harmless because jurors were aware that Schaaf later voluntarily agreed to speak with police and provided them with his version of events wherein he set forth his claim of self-defense. This court overrules Schaaf's first assignment of error.

Schaaf, 2019-Ohio-196.

The procedural default doctrine in habeas corpus, relief on by Respondent, is described by the Supreme Court as follows:

In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an adequate and independent state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause of the default and actual prejudice as a result of the alleged violation of federal law; or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.

Coleman v. Thompson, 501 U.S. 722, 750 (1991); see also Simpson v. Jones, 238 F.3d 399, 406 (6^th Cir. 2000). That is, a petitioner may not raise on federal habeas a federal constitutional rights claim he could not raise in state court because of procedural default. Wainwright v. Sykes...