1 

 IN THE UNITED STATES DISTRICT COURT 

FOR THE SOUTHERN DISTRICT OF OHIO 

EASTERN DIVISION 

WILLIAM T. ALLEN, 

 CASE NO. 2:12-CV-154 

 Petitioner, Judge Sargus 

 Magistrate Judge King 

 V. 

WARDEN, TOLEDO CORRECTIONAL 

INSTITUTION, 

 Respondent. 

REPORT AND RECOMMENDATION 

 Petitioner, a state prisoner, brings this petition for a writ of habeas corpus pursuant to 28 

U.S.C. § 2254. This matter is before the Court on the Petition, Doc. No. 2, Respondent’s Return 

of Writ, Doc. No. 8, Petitioner’s Reply, Doc. No. 14, the parties’ supplement to the record, Doc. 

Nos. 16, 17, and the exhibits of the parties. For the reasons that follow, the Magistrate Judge 

RECOMMENDS that this action be DISMISSED. 

FACTS and PROCEDURAL HISTORY 

 The Ohio Fifth District Court of Appeals summarized the facts and procedural history of 

this case as follows: 

On June 11, 2000, at approximately 10:00 p.m., Norman “Duck” 

Herrell was at his home talking on the telephone with his ex-wife, 

Phyllis Gaskins. A knock on the door at Herrell's house interrupted 

the conversation. Herrell told Gaskins that he would call her back, 

but he never called. 

The next morning, Herrell did not report to work at his furniture 

store, J & D furniture. His son, Michael Herrell, became 

concerned, and tried repeatedly to call his father throughout the 

day. When he still could not reach Herrell by the afternoon, 

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Michael went to Herrell's house to check on him. 

Michael testified at trial that when he arrived at Herrell's house, the 

door was unlocked and there were blankets hanging over the 

windows in the living room. Michael stated that his father was an 

immaculate housekeeper and that when he entered the home on 

June 12th, the house was a mess, it appeared to have been 

ransacked, and Herrell's gun cabinet was open and his guns were 

missing. Michael found his father lying face down on the floor in a 

pool of blood in the basement. He called 911. 

Upon arrival, the officers searched the home for additional victims 

or suspects. No one else was found to be in the residence. They 

also checked for, but did not find, evidence of a forced entry. 

After determining that Herrell's death was a homicide, the 

Delaware Police Department contacted the Ohio Bureau of 

Criminal Investigation (B.C.I.) for assistance in processing the 

crime scene. 

While processing the scene, officers recovered several pieces of 

evidence. They recovered two knives, including a small brown 

knife from the love seat in the basement, which appeared to have 

blood on it. After DNA tests were run on the knife, it was 

determined that, the blood present on the knife was that of Herrell. 

They also recovered a pair of brown cloth gloves, which were 

saturated with blood. DNA recovered from those gloves matched 

both Herrell's DNA and subsequently that of Allen. Additionally, 

authorities recovered a long-sleeved blue shirt that later was 

determined to possess the DNA of Allen, as well as his wife, Silvy 

Allen.FN2

 FN2. The record reflects that the Allens were married in 2005. 

Officers also recovered a guest receipt from a Meijer store in 

Oregon, Ohio, which is near Toledo. They were able to determine 

that a person who identified himself as K.W. Yowpp made the 

purchase and a return on June 9, 2000 FN3. K.W. Yowpp is a 

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known alias of Brenson. Brenson's fingerprint was retrieved from 

the receipt. 

 FN3. 15T. at 2233 

Brenson's fingerprint was also recovered from an envelope at 

Herrell's house containing a dog tag. 

While searching Herrell's home, authorities observed that many 

items in the house had been disturbed, including pictures taken off 

walls, chairs moved from the kitchen to rooms that had blankets 

over the windows, rooms that had been ransacked, as if the 

intruder(s) were looking for something. They also observed a large 

quantity of illegal fireworks in the basement of the house. 

Several days following the initial search of Herrell's house, 

authorities returned to the home after learning that Herrell had a 

safe hidden in the house. Herrell's family had not disclosed to the 

authorities that the safe existed, but after authorities asked about 

the safe, Herrell's daughter, who was the only person besides 

Herrell with the combination to the safe, opened it for them. 

Contained within the safe were silver coins, old stopwatches, a 

deed to rental property owned by Herrell, and some jewelry. 

Franklin County Deputy Coroner, Dorothy Dean, testified that 

Herrell had been stabbed fifty-one times. Three of the stab wounds 

were potentially fatal. 

During the investigation of Herrell's murder, officers discovered 

that Herrell and Brenson spent several months in prison together at 

Marion Correctional Institution in 1981. Herrell's children were 

also familiar with Brenson, having seen him with Herrell before. 

Herrell's children identified Brenson as “Muhammad.” 

Sometime in 2001, officers learned that Ohio Highway Patrol 

Trooper Brandon Spaulding stopped Brenson during the evening 

hours of June 11, 2000, on U.S. 23 South in the area of Bucyrus, 

Ohio. Trooper Spaulding testified at trial that he was running 

license plates on vehicles at a rest area, when he ran the license 

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plate on Brenson's red Ford F-150 at approximately 8:51 p.m. The 

truck was registered to Mustafa Muhammad, which was Brenson's 

son's name. At that time, Trooper Spaulding believed that the 

license plate on the truck actually belonged on a different vehicle. 

The trooper pulled his cruiser up behind Brenson's vehicle and got 

out of his cruiser to approach Brenson. Upon approaching 

Brenson, Trooper Spaulding noted that Brenson was sitting in the 

vehicle alone. 

Trooper Spaulding determined that he had conveyed one of the 

letters on the license plate incorrectly to the dispatcher, and started 

to explain the mistake to Brenson. Brenson became angry and 

began swearing at the trooper, claiming that the trooper was 

harassing him because of his race. Trooper Spaulding noticed that 

Brenson's front license plate was in the dashboard. He warned 

Brenson to attach the license plate to the front of the vehicle. Eight 

minutes after he initiated the stop, Trooper Spaulding cleared the 

call and left the rest stop. 

According to Brenson FN4, he then went to the next exit to obtain 

materials to attach the license plate to the front of the truck. 

Brenson testified in 2002 and 2008 before the Delaware County 

grand jury that he was on his way to Delaware, Ohio, to purchase 

fireworks from Herrell. He also stated in his 2008 grand jury 

testimony that he purchased zip ties to secure the license plate to 

the front of the truck FN5. 

FN4. Brenson did not testify at trial. He did, however, testify twice 

before the Delaware County Grand Jury. He first testified on April 

18, 2002. He testified a second time on April 15, 2008. 

Additionally, he agreed to meet with police detectives for an 

interview on January 14, 2003. It is from a combination of these 

three occasions that the prosecution introduced various statements 

made by Defendant Brenson at trial. 

FN5. The prosecution attempted to demonstrate that a search of 

Brenson's vehicle in October 1999 yielded similar plastic zip ties 

in order to show that he did not purchase the plastic ties because of 

the June 11, 2000 traffic encounter with Trooper Spaulding. (12T. 

at 1390; 1395). 

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In March 2001, the police recovered Brenson's truck, and found no 

blood in the truck. They did find that his front license plate was 

attached to the front of the truck with a coat hanger. 

At trial, Phyllis Gaskins testified that when she was speaking on 

the phone with Herrell on the night of June 11, 2000, he told her 

that two “white guys” were at the door. She later retracted her 

statement, claiming that Herrell would not have called the men 

“white guys.” Brenson later told authorities that he saw a van with 

two white guys come up to Herrell's house as he was leaving. He 

claimed they were in a white van with Cuyahoga County license 

plates on it. 

Brenson stated, through his grand jury testimony, that he left 

Herrell's house that night and returned to Toledo, arriving home 

around 11:00 or 12:00 that night. 

Brenson also testified before the grand jury that he and Allen had 

been friends since 1979, that they both lived in Toledo, and that 

they had taken numerous trips together over the years. At trial, the 

prosecution called numerous friends and family members of 

Brenson to testify that they had seen Brenson with Allen multiple 

times throughout the years. 

In October 2005, Allen became linked to Brenson through an 

informant. Allen reported being the victim of a felonious assault. 

As a result, the police obtained a blood sample from Allen. 

Subsequently, police were able to link Allen's DNA to the shirt 

found in Herrell's kitchen. Allen was also found to have a 1-in-30 

chance of being a contributor to the DNA found on the bloodsoaked cloth gloves in Herrell's kitchen. 

Prior to being informed that his DNA was found at the scene of a 

crime, during an interview with the police in 2005 when he was the 

victim of a felonious assault, Allen informed the police that he was 

good friends with Brenson, whom he knew as “Muhammad.” 

When the police showed Allen a photograph of Herrell, his 

demeanor noticeably changed; he looked at the picture and stated 

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that he did not know him. 

A car dealer in Toledo testified at trial that in April 2000, Allen 

purchased a car for $600 and then sold it back in July 2000 for 

$200. Silvy Allen's daughter, Shanica Masadeh, testified at trial 

that Silvy and Allen suddenly moved to Florida in July 2000, and 

that Silvy gave custody of her to Silvy's grandmother because 

Silvy could not support her. The police obtained records from 

Florida that Allen and Silvy both worked for a temporary agency 

from August 8, 2000, to December 20, 2000. 

Brenson's first defense attorney, Thomas Beal, testified at trial that 

he had a conversation with the Delaware County Prosecutor on 

December 3, 2000, that the indictment against Brenson would be 

dismissed, most likely by December 15, 2000. Allen then returned 

to Ohio in late December, 2000. 

James Brenson was originally indicted for the murder of Herrell in 

Delaware County Common Pleas Case Number 00-CR-I-07-0195 

on July 28, 2000. That case was dismissed without prejudice on 

January 16, 2001, at the request of the prosecution for further 

investigation. 

Seven years later, a second indictment was issued on April 16, 

2008, wherein both Brenson and Allen were indicted on two 

counts of aggravated murder, unclassified felonies, in violation of 

R.C. 2903.01(A) and R.C. 2903.01(B), respectively, one count of 

murder, an unclassified felony, in violation of R.C. 2903.02(B), 

one count of kidnapping, a felony of the first degree, in violation of 

R .C. 2905.01(A)(2), one count of kidnapping, a felony of the first 

degree, in violation of R.C. 2905.01(A)(3), one count of 

aggravated robbery, a felony of the first degree, in violation of 

R.C. 2911.01(A)(3), and one count of aggravated robbery, a felony 

of the first degree, in violation of R.C. 2911.01(A)(1). 

Following their convictions, both defendants were sentenced to an 

aggregate of thirty years to life in prison. 

 Appellant Allen raises five Assignments of Error: 

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“I. APPELLANT'S SIXTH AMENDMENT RIGHT TO 

CONFRONT THE WITNESSES AT HIS TRIAL AND HIS 

FOURTEENTH AMENDMENT RIGHT TO A FAIR TRIAL 

WERE VIOLATED BY THE ADMISSION OF HIS NONTESTIFYING CO-DEFENDANT’S STATEMENTS AT TRIAL. 

“II. THE JOINDER OF DEFENDANTS SUBSTANTIALLY 

PREJUDICED APPELLANT'S DUE PROCESS RIGHT TO A 

FAIR TRIAL UNDER THE UNITED STATES CONSTITUTION 

AS IT PREVENTED THE JURY FROM MAKING A RELIABLE 

JUDGMENT ABOUT HIS GUILT OR INNOCENCE. 

“III. THE PARADING OF APPELLANT'S WIFE, WHO WAS 

INCOMPETENT TO TESTIFY, BEFORE THE JURY AND 

THEN ADVISING THEM SHE WOULD NOT TESTIFY 

VIOLATED APPELLANT'S SIXTH AMENDMENT RIGHT TO 

CONFRONT WITNESSES AND HIS FOURTEENTH 

AMENDMENT RIGHT TO A FAIR TRIAL AS THE ACT 

CREATED AN UNFAVORABLE INFERENCE THAT THE 

WITNESS AND APPELLANT ENGAGED IN CRIMINAL 

CONDUCT, OR THAT THE WITNESS HAS EVIDENCE 

WHICH INCULPATES APPELLANT. 

“IV. THE STRIKING FROM THE RECORD OF THE 

IRRELEVANT AND INADMISSIBLE EVIDENCE 

REGARDING THE EXECUTION OF A SEARCH WARRANT 

ON MR. BRENSON'S VEHICLE BY LIEUTENANT GORNEY 

WAS INSUFFICIENT TO PROTECT APPELLANT'S RIGHT 

TO A FAIR TRIAL UNDER THE FOURTEENTH 

AMENDMENT TO THE UNITED STATES CONSTITUTION 

AND THE TRIAL COURT SHOULD HAVE GRANTED A 

MISTRIAL. 

“V. THE CUMULATIVE EFFECT OF THE ERRORS SET 

FORTH ABOVE DEPRIVED THE APPELLANT OF HIS 

CONSTITUTIONAL RIGHT TO A FAIR TRIAL.” 

State v. Allen, No. 2009-CA-13, 2010 WL 3784818, at *1-4 (Ohio App. 5th Dist. Sept. 28, 

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2010).1

 On September 28, 2010, the appellate court affirmed the judgment of the trial court. Id. 

On February 2, 2011, the Ohio Supreme Court dismissed Petitioner’s subsequent appeal. State v. 

Allen, 127 Ohio St.3d 1535 (2011). 

 On January 6, 2012, Petitioner filed an application to reopen the appeal pursuant to Ohio 

Appellate Rule 26(B). He asserted that he was denied the effective assistance of appellate 

counsel because his attorney failed to raise on appeal a claim of prosecutorial misconduct and 

ineffective assistance of trial counsel. Exhibit 26 to Return of Writ. On February 14, 2012, the 

appellate court denied Petitioner’s Rule 26(B) application. Exhibit 29 to Return of Writ. 

Although Petitioner indicates that he filed an appeal from that decision to the Ohio Supreme 

Court, and has attached what appears to be a copy of that appeal, see Exhibits to Traverse, 

Respondent has provided a supplemental response which indicates that the Ohio Supreme Court 

never received such an appeal. See Supplemental Response, Doc. No. 16. 

 On February 21, 2012, Petitioner filed the pro se petition for a writ of habeas corpus 

pursuant to 28 U.S.C. § 2254. He alleges that he is in the custody of the Respondent in violation 

of the Constitution of the United States based on the following grounds: 

1. Appellant’s Sixth Amendment right to confront the 

witnesses at his trial and his Fourteenth Amendment 

right to a fair trial were violated by the admission of 

his non-testifying co-defendant’s statements at trial. 

 1

 Petitioner disputes the factual findings of the state appellate court, contending that its 

factual findings are not entitled to a presumption of correctness under 28 U.S.C. § 2254(e), 

because the appellate court failed to make those findings on direct appeal. See Reply. In support 

of this argument, and in support of his claims for relief, Petitioner has attached various exhibits 

to his Reply . The record fails to reflect, however, that Petitioner has met his burden of rebutting 

the presumption of correctness accorded to the factual findings of the state appellate court. 

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2. The joiner of defendants substantially prejudiced 

the appellant’s due process rights to a fair trial 

under the U.S. Constitution as it prevent[ed] the 

jury from making a reliable judgment about his 

innocence or guilt. 

3. The parading of appellant’s wife, who was 

incompetent to testify before the jury, who had a 

hostile attitude, openly towards the prosecutors, 

then advising jurors she would not be testifying 

created an unfavorable inference that she and the 

appellant engaged in criminal conduct, or that she 

has evidence which inculpates appellant. 

4. The striking from the record of the irrelevant and 

inadmissible evidence regarding the execution of a 

search warrant on Mr. Brenson’s vehicles by Lt. 

Gorney, over a year before, was insufficient to 

protect the appellant’s rights to a fair trial under the 

Fourteenth Amendment to the U.S. Constitution and 

the trial court should have granted a mistrial. 

5. The cumulative effects of the errors set forth above 

deprive the appellant of his constitutional rights to a 

fair trial. 

6. Prosecutor’s misconduct. 

7. Ineffective assistance of trial counsel and 

ineffective assistance of appellate counsel. 

It is the position of the Respondent that Petitioner’s claims are procedurally defaulted, fail to 

present a cognizable habeas corpus claim or are without merit. 

 CLAIM ONE

 In claim one, Petitioner asserts that he was denied his right to confront witnesses against 

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him by the admission of his non-testifying co-defendant’s statements at trial. The state appellate 

court rejected this claim as follows: 

In the first assignment of error, appellant argues that it was error 

for the trial court to allow statements of his non-testifying 

codefendant, Brenson, at trial. In so doing, he argues that the trial 

court violated his right to confront witnesses against him under the 

Sixth Amendment to the U.S. Constitution and his right to a fair 

trial under the Due Process Clause of the Fourteenth Amendment 

to the U.S. Constitution. 

Specifically, appellant cites solely to “[t]he redacted Grand Jury 

Transcripts of Mr. Brenson's testimony before the Delaware 

County, Ohio Grand Jury on April 18, 2002 and April 15, 2008 

[that] was admitted at trial against Appellant. In those statements 

Mr. Brenson specifically refers to Appellant by name stating that 

he knew Appellant and they were good friends. Transcript Vol. 

XIII, page 1855, line 16, page 1857, line 17. Mr. Brenson testified 

that he has known Appellant since 1979, that they are close 

friends, that Appellant worked for him and that they went on trips 

together, specifically to Arizona in the early 1990's. Id.” 

[Appellant's Brief at 23]. Appellant does not cite nor does he take 

exception to any other statement made by Brenson. [See, 

Appellant's Brief at 23-24]. 

“Ordinarily when, at a joint trial, a co-defendant's prior statement, 

testimonial or otherwise, is introduced only against the declarantco-defendant, and not against the complaining co-defendant, the 

latter has suffered no violation of his Sixth Amendment 

Confrontation Clause rights.” United States v. Vasilakos (6th Cir. 

2007), 508 F.3d 401, 407. The Supreme Court has recognized an 

exception to this general rule where a co-defendant's statement 

facially incriminates the defendant. Bruton v. United States (1968), 

391 U.S. 123, 135-36, 88 S.Ct. 1620, 20 L.Ed.2d 476. The 

statements in the case at bar never inculpate either Brenson or 

Allen; rather the statements assigned as error only allude to the fact 

that the two knew each other, a fact corroborated by at least four 

other witnesses and the appellant. Specifically, Detective 

Leatherman testified that he spoke to appellant at his residence 

(14T. at 2032). He showed him some unmarked photographs ( Id.

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at 2033). The first photograph he showed Allen was of Mr. 

Brenson ( Id. at 2033). Allen identified the photograph as 

“Muhammad” ( Id. at 2033). Allen indicated that he and Brenson 

were friends ( Id. at 2034). Appellant indicated that he and 

Brenson were “good” or “close” friends ( Id. at 2034). Appellant 

indicated that he and Brenson had known each other for “quite 

awhile” ( Id. at 2034). 

Accordingly, it can hardly be argued that Brenson's statement that 

he knew Allen amounted to constitutional error. 

Where, however, “the contested statement is not incriminating to a 

defendant on its face, but is only so when linked with other 

evidence at trial, a trial court's limiting instruction is enough to 

restrain the jury from considering the statement for a purpose that 

would violate the defendant's right to confrontation.” State v. 

Wilkerson, 10th Dist. No. 01 AP-1127, 2002-Ohio-5416, ¶ 4., 

citing State v. Laird (1989), 65 Ohio App.3d 113, 115-17, 583 

N.E.2d 323, following Richardson v. Marsh (1987), 481 U.S. 200, 

107 S.Ct. 1702, 95 L.Ed.2d 176. State v. Jennings, Franklin App. 

Nos. 09 AP-70, 09 AP-75, 2009-Ohio-6840 at ¶ 71. 

In the case at bar, before deliberations, the trial court specifically 

admonished the jury that “Evidence may be admitted against one 

defendant, even though it must not be considered as evidence 

against the other defendant. You must carefully separate such 

evidence and consider it only as to the defendant to whom it 

applies. 

“A statement by one defendant made outside the presence of the 

other defendant is admissible as to the defendant making such 

statement and must not be considered for any purpose as evidence 

against the other defendant. 

“You must decide separately the question of whether one or both 

defendants are guilty or not guilty. If you cannot agree on a verdict 

as to both defendants, but do agree as to one, you must render a 

verdict as to the one upon whose guilty or not guilty finding you 

agree.” (17T. at 2588). 

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Appellant did not object to these instructions nor does he challenge 

the clarity of these instructions. Accordingly, these instructions 

were sufficient to restrain the jury from considering the statement 

for a purpose that would violate the defendant's right to 

confrontation. 

Nor do we find the admission of the statement to have affected 

appellant's substantial rights. In State v. Fisher, 99 Ohio St.3d 127, 

2003-Ohio-2761, 789 N.E.2d 222, the Ohio Supreme Court 

recognized that “[i]n Arizona v. Fulminante (1991), 499 U.S. 279, 

306-312, 111 S.Ct. 1246, 113 L.Ed.2d 302, the United States 

Supreme Court denominated the two types of constitutional errors 

that may occur in the course of a criminal proceeding-‘trial errors,’ 

which are reviewable for harmless error, and structural errors, 

which are per se cause for reversal. * * * Trial error is error which 

occurred during the presentation of the case to the jury, and which 

may therefore be quantitatively assessed in the context of other 

evidence presented in order to determine whether its admission 

was harmless beyond a reasonable doubt. * * * Structural errors, 

on the other hand, defy analysis by ‘harmless error’ standards 

because they affect the framework within which the trial proceeds, 

rather than simply [being] an error in the trial process itself. [ 

Fulminante ] at 309 and 310, 499 U.S. 279, 111 S.Ct. 1246, 113 

L.Ed.2d 302. Consequently, a structural error mandates a finding 

of per se prejudice.” Fisher at ¶ 9. (Internal quotation marks 

omitted). See, also, State v. Wamsley, 117 Ohio St.3d 388, 884 

N.E.2d 45, 2008-Ohio-1195 at ¶ 15. In Wamsley, the Ohio 

Supreme Court noted, 

“We have previously held that if the defendant had counsel and 

was tried by an impartial adjudicator, there is a strong presumption 

that any other constitutional[l] errors that may have occurred are 

subject to harmless-error analysis. State v. Hill (2001), 92 Ohio 

St.3d 191, 197, 749 N.E.2d 274), quoting Rose v. Clark (1986), 

478 U.S. 570, 579, 106 S.Ct. 3101, 92 L.Ed.2d 460. Moreover, as 

we stated in State v. Perry, 101 Ohio St.3d 118, 2004-Ohio-297, 

802 N.E.2d 643, [c]onsistent with the presumption that errors are 

not structural, the United States Supreme Court ha[s] found an 

error to be structural, and thus subject to automatic reversal, only 

in a very limited class of cases. Johnson v. United States, 520 U.S. 

461, 468, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997) (citing Gideon 

v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963) 

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(complete denial of counsel)); Tumey v. Ohio, 273 U.S. 510, 47 

S.Ct. 437, 71 L.Ed. 749 (1927) (biased trial judge); Vasquez v. 

Hillery, 474 U.S. 254, 106 S.Ct. 617, 88 L.Ed.2d 598 (1986) 

(racial discrimination in selection of grand jury); McKaskle v. 

Wiggins, 465 U.S. 168, 104 S.Ct. 944, 79 L.Ed.2d 122 (1984) 

(denial of self-representation at trial); Waller v. Georgia, 467 U.S. 

39, 104 S.Ct. 2210, 81 L.Ed.2d 31 (1984) (denial of public trial); 

Sullivan v. Louisiana, 508 U.S. 275, 113 S.Ct. 2078, 124 L.Ed.2d 

182 (1993) (defective reasonable-doubt instruction).” Perry, 101 

Ohio St.3d 118, 2004-Ohio-297, 802 N.E.2d 643, ¶ 18, quoting 

Neder v. United States (1999), 527 U.S. 1, 8, 119 S.Ct. 1827, 144 

L.Ed.2d 35.” State v. Wamsley, supra 117 Ohio St.3d at 391-392, 

884 N.E.2d at 48-49, 2008-Ohio-1195 at ¶ 16. [Internal quotation 

marks omitted]. 

In Wamsley, supra, the Ohio Supreme Court further noted, “this 

court has rejected the concept that structural error exists in every 

situation in which even serious error occurred. See State v. Hill, 92 

Ohio St.3d at 199, 749 N.E.2d 274, quoting Johnson v. United 

States, 520 U.S. at 466, 117 S.Ct. 1544, 137 L.Ed.2d 718. In 

Johnson, a criminal defendant argued that an unobjected-to error 

was structural, and therefore outside the plain-error strictures of 

Fed.R.Crim.P. 52(b), Ohio's Crim.R. 52(B) counterpart. The 

Johnson court * * * found that it had no authority to create a 

‘structural error exception’ to the rule, and seemed to hold that, in 

direct appeals from federal convictions, a structural error analysis 

is inappropriate in a plain-error situation. Hill at 199, 749 N.E.2d 

274, quoting Johnson, 520 U.S. at 466, 117 S.Ct. 1544, 137 

L.Ed.2d 718.” Wamsley 117 Ohio St.3d at 392, 884 N.E.2d at 50, 

2008-Ohio-1195 at ¶ 18. (Internal quotation marks omitted). 

In Ohio, Crim.R. 52 gives appellate courts narrow power to correct 

errors that occurred during the trial court proceedings. Crim.R. 

52(A), which governs the criminal appeal of a non-forfeited error, 

provides that “[a]ny error * * * which does not affect substantial 

rights shall be disregarded.” (Emphasis added.) Thus, Crim.R. 

52(A) sets forth two requirements that must be satisfied before a 

reviewing court may correct an alleged error. First, the reviewing 

court must determine whether there was an “error” -- i.e., a 

“[d]eviation from a legal rule.” United States v. Olano, (1993), 507 

U.S. 725, 732-733, 113 S.Ct. 1770, 123 L.Ed.2d 508. Second, the 

reviewing court must engage in a specific analysis of the trial court 

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record -- a so-called “harmless error” inquiry -- to determine 

whether the error “affect[ed] substantial rights” of the criminal 

defendant. In United States v. Dominguez Benitez (June 14, 2004), 

542 U.S. 74, 124 S.Ct. 2333, 159 L.Ed.2d 157, the Court defined 

the prejudice prong of the plain error analysis. “It is only for 

certain structural errors undermining the fairness of a criminal 

proceeding as a whole that even preserved error requires reversal 

without regard to the mistake's effect on the proceeding. See 

Arizona v. Fulminante, 499 U.S. 279, 309-310, 111 S.Ct. 1246, 

113 L.Ed.2d 302 (1991) (giving examples). Otherwise, relief for 

error is tied in some way to prejudicial effect, and the standard 

phrased as ‘error that affects substantial rights,’ used in Rule 52, 

has previously been taken to mean error with a prejudicial effect 

on the outcome of a judicial proceeding. See Kotteakos v. United 

States, 328 U.S. 750, 66 S.Ct. 1239, 90 L.Ed. 1557 (1946). To 

affect “substantial rights,” ..., an error must have “substantial and 

injurious effect or influence in determining the ... verdict.” 

Kotteakos, supra, at 776.” United States v. Dominguez Benitez, 

supra 542 U.S. 74, 81, 124 S.Ct. at 2339. See, also, State v. Barnes

(2002), 94 Ohio St.3d 21, 759 N.E.2d 1240; State v. Fisher, 99 

Ohio St.3d 127, 129, 2003-Ohio-2761 at ¶ 7, 789 N.E.2d 222, 224-

225. Thus, a so-called “[t]rial error” is “error which occurred 

during the presentation of the case to the jury, and which may 

therefore be quantitatively assessed in the context of other 

evidence presented in order to determine whether its admission 

was harmless beyond a reasonable doubt.” Fulminante, 499 U.S. at 

307-308, 111 S.Ct. 1246, 113 L.Ed.2d 302. State v. Naugle (2009), 

182 Ohio App.3d 593, 913 N.E.2d 1052, 2009-Ohio-3268 at ¶ 16. 

(Citing State v. Ahmed, Stark App. No.2007-CA-00049, 2008-

Ohio-389). 

As previously noted Allen's own statements admitted at trial 

together with the testimony of no less [sic] than four other 

witnesses established that Allen and Brenson knew and associated 

with each other in the past. Accordingly, Allen's substantial rights 

were not violated by the admission of Brenson's statement. 

 Allen's . . . assignment of error is overruled. 

State v. Allen, 2010 WL 3784818, at *4-8. 

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15 

 The factual findings of the state appellate court are presumed to be correct. 

 

In a proceeding instituted by an application for a writ of habeas 

corpus by a person in custody pursuant to the judgment of a State 

court, a determination of a factual issue made by a State court shall 

be presumed to be correct. The applicant shall have the burden of 

rebutting the presumption of correctness by clear and convincing 

evidence. 

28 U.S.C. § 2254(e)(1). Further, a federal habeas court may not grant relief unless the state 

court's decision was contrary to or an unreasonable application of clearly established federal law, 

or based on an unreasonable determination of the facts in light of the evidence that was 

presented. 

An application for a writ of habeas corpus on behalf of a person in 

custody pursuant to the judgment of a State court shall not be 

granted with respect to any claim that was adjudicated on the 

merits in State court proceedings unless the adjudication of the 

claim- 

(1) resulted in a decision that was contrary to, or involved an 

unreasonable application of, clearly established Federal law, as 

determined by the Supreme Court of the United States; or 

(2) resulted in a decision that was based on an unreasonable 

determination of the facts in light of the evidence presented in the 

State court proceeding. 

28 U.S.C. § 2254(d). The United States Supreme Court has explained: 

 

"[A]n unreasonable application of federal law is different from an 

incorrect application of federal law." Williams v. Taylor, 529 U.S. 

362, 410, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). Indeed, "a 

federal habeas court may not issue the writ simply because that 

court concludes in its independent judgment that the relevant statecourt decision applied clearly established federal law erroneously 

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16 

or incorrectly." Id., at 411, 120 S.Ct. 1495. Rather, that application 

must be "objectively unreasonable." Id., at 409, 120 S.Ct. 1495. 

This distinction creates "a substantially higher threshold" for 

obtaining relief than de novo review. Schriro v. Landrigan, 550 

U.S. 465, 473, 127 S.Ct. 1933, 167 L.Ed.2d 836 (2007). AEDPA 

thus imposes a "highly deferential standard for evaluating statecourt rulings," Lindh v. Murphy, 521 U.S. 320, 333, n. 7, 117 S.Ct. 

2059, 138 L.Ed.2d 481 (1997), and "demands that state-court 

decisions be given the benefit of the doubt," Woodford v. Visciotti, 

537 U.S. 19, 24, 123 S.Ct. 357, 154 L.Ed.2d 279 (2002) ( per 

curiam ). 

Renico v. Lett, – U.S. –, 130 S.Ct. 1855,1862 (2010)(footnote omitted.) 

"[C]learly established" law under § 2254(d)(1) consists of "the 

holdings, as opposed to the dicta, of this Court's" cases. Williams v. 

Taylor, 529 U.S. 362, 412, 120 S.Ct. 1495, 146 L.Ed.2d 389 

(2000). An "unreasonable application" of that law involves not just 

an erroneous or incorrect decision, but an objectively unreasonable 

one. Renico v. Lett, 559 U.S. ----, 130 S.Ct. 1855, 176 L.Ed.2d 678 

(2010). 

Wong v. Smith, 131 S.Ct.10 (Mem), 2010 WL 752363, at *2 (Nov. 1, 2010). A state court's 

determination that a claim lacks merit precludes federal habeas relief so long as “‘fairminded 

jurists could disagree’ on the correctness of the state court's decision.’” Harrington v. Richter, – 

U.S. –, –, 131 S.Ct. 770, 786 (2011)(quoting Yarborough v. Alvarado, 541 U.S. 652, 664 

(2004)). Petitioner has failed to meet this standard. 

 The Sixth Amendment to the United States Constitution guarantees criminal defendants 

the right to physically confront and cross examine adverse witnesses at all stages of the trial. 

Illinois v. Allen, 397 U.S. 337, 388 (1970). In Crawford v. Washington, 541 U.S. 36 (2004), the 

United States Supreme Court re-defined the test for determining whether admission of hearsay 

statements violates the Confrontation Clause. The Supreme Court specifically held that the 

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17 

testimonial statements of a witness who does not testify at trial are inadmissible unless the 

witness was unavailable to testify and the defense had a prior opportunity for cross-examination: 

Where testimonial evidence is at issue ... the Sixth Amendment 

demands what the common law required: unavailability and a prior 

opportunity for cross examination. 

Id., at 1366. However, the Supreme Court left untouched the standard governing cases involving 

nontestimonial hearsay. “The lynchpin of the Crawford decision. . . is its distinction between 

testimonial and nontestimonial hearsay; simply put, the rule announced in Crawford applies only 

to the former category of statements.... [U]nless a particular hearsay statement qualifies as 

‘testimonial,’ Crawford is inapplicable and [Ohio v.] Roberts [448 U.S. 56 (1980)] still 

controls.” Coy v. Renico, 414 F.Supp.2d 744, 773 (E.D. Mich. 2006) (citing United States v. 

Hendricks, 395 F.3d 173, 179 (3d Cir. 2005); Horton v. Allen, 370 F.3d 75, 83–84 (1st 

Cir.2004); United States v. Johnson, 354 F.Supp.2d 939, 964 (N.D. Iowa 2005); United States v. 

Savoca, 335 F.Supp.2d 385, 391–92 (S.D.N.Y. 2004)). The Supreme Court in Crawford declined 

to spell out a comprehensive definition of the term “testimonial,” but stated that, at a minimum, 

the term includes “prior testimony at a preliminary hearing, before a grand jury, or at a former 

trial; and to police interrogations. These are the modern practices with closest kinship to the 

abuses at which the Confrontation Clause was directed.” Crawford, 124 S.Ct. at 1374. A casual 

remark to an acquaintance, business records, and statements made in furtherance of a conspiracy 

do not constitute testimonial statements subject to the strictures of the Sixth Amendment. Id., at 

1364–65, 1367. Further, “admission of a testimonial statement in and of itself is not enough to 

trigger a violation of the Confrontation Clause. Instead, the statement must be used as hearsay -- 

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in other words, it must be offered for the truth of the matter asserted.” United States v. Pugh, 

405 F.3d 390, 399 (6th Cir. 2005). A violation of the Confrontation Clause is subject to harmless 

error review. Id., at 400 (citing Jordan v. Hurley, 397 F.3d 360, 363 (6th Cir. 2005)). 

 For the reasons articulated by the state appellate court, Petitioner’s first claim is without 

merit. 

 CLAIM TWO 

 In claim two, Petitioner asserts that he was denied a fair trial because the trial court 

refused to sever his trial from that of his co-defendant. The state appellate court rejected this 

claim, reasoning as follows: 

Brenson and Allen were jointly indicted on seven counts related to 

the murder of Norman Herrell. In count one, both men were 

charged with the aggravated murder of Herrell under R.C. 

2903.01(A). In count two, they were charged with the aggravated 

murder of Herrell under R.C. 2903.01(B). In count three, they were 

charged with Herrell's murder under R.C. 2903.02(B). In count 

four, they were charged with kidnapping under R.C. 

2905.01(A)(2). In count five, they were charged with kidnapping 

under R.C. 2905.01(A)(3). In counts six and seven, the men were 

charged with aggravated robbery, in violation of R.C. 

2911.01(A)(3) and R.C. 2911 .01(A)(1), respectively. 

Defendants may be charged in the same indictment, pursuant to 

Ohio Crim. R. 8(B) as follows: 

“Two or more defendants may be charged in the same indictment, 

information or complaint if they are alleged to have participated in 

the same act or transaction or in the same series of acts or 

transactions constituting an offense or offenses, or in the same 

course of criminal conduct. Such defendants may be charged in 

one or more counts together or separately, and all of the defendants 

need not be charged in each count.” 

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The law favors the joinder of defendants and the avoidance of 

multiple trials because joinder conserves judicial and prosecutorial 

time, lessens the expenses of multiple trials, diminishes the 

inconvenience to witnesses, and minimizes the possibility of 

incongruous results from successive trials before different juries. 

State v. Thomas (1980), 61 Ohio St.2d 223, 400 N.E.2d 401. 

In order to obtain a severance, a defendant needed to affirmatively 

demonstrate prejudice by the joinder. Crim.R. 14. Crim R. 14 

provides, in pertinent part: 

“If it appears that a defendant or the state is prejudiced by a joinder 

of offenses or of defendants in an indictment, information, or 

complaint, or by such joinder for trial together of indictments, 

informations or complaints, the court shall order an election or 

separate trial of counts, grant a severance of defendants, or provide 

such other relief as justice requires. In ruling on a motion by a 

defendant for severance, the court shall order the prosecuting 

attorney to deliver to the court for inspection pursuant to Rule 

16(B)(1)(a) any statements or confessions made by the defendants 

which the state intends to introduce in evidence at the trial.” 

The United States Supreme Court has stated, “a district court 

should grant a severance under Rule 14 only if there is a serious 

risk that a joint trial would compromise a specific trial right of one 

of the defendants, or prevent the jury from making a reliable 

judgment about guilt or innocence.” Zafiro v. United States (1993), 

506 U.S. 534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317. Even where 

the risk of prejudice is high, “less drastic measures, such as 

limiting instructions, often will suffice to cure any risk of 

prejudice.” Id. Indeed, “[a] request for severance should be denied 

if a jury can properly compartmentalize the evidence as it relates to 

the appropriate defendants.” United States v. Causey (6th Cir. 

1987), 834 F.2d 1277, 1287. Thus, to prevail on his severance 

argument, an appellant must show “compelling, specific, and 

actual prejudice from [the] court's refusal to grant the motion to 

sever.” United States v. Saadey (6th Cir. 2005), 393 F.3d 669, 678; 

United States v. Driver (6th Cir. 2008), 535 F.3d 424, 427. 

 Allen's Pre-Trial Motion for Relief from Prejudicial Joinder. 

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In the case at bar, Allen filed a Motion for Relief from Prejudicial 

Joinder (Motion # 30) on April 21, 2008, and Brenson filed a 

Motion to Sever Trial (Motion # 29) on April 25, 2008. The State 

of Ohio filed responses on April 24, 2008 and April 28, 2008, 

respectively. On April 30, 2008, the trial court ordered that any 

statements of Allen and Brenson be provided to the Court under 

Crim.R. 14. The State filed a Summary of Statements on May 8, 

2008, and filed a Supplemental Summary of Statements for Virgil 

McClendon's Anticipated Testimony on May 14, 2008. Brenson 

filed a supplemental memorandum in support of his motion to 

sever on May 12, 2008. Allen filed a response to the State's 

Summary of Statements on May 15, 2008. The State filed a 

response to Allen's Response on May 16, 2008. Allen filed a reply 

thereto on May 19, 2008. The State also filed a response to 

Brenson's supplemental memorandum on May 19, 2008. 

In determining whether to sever the trials of Allen and Brenson, 

the trial court reviewed the summary of statements filed by the 

State, in addition to the following: (1) interview with Allen on 

February 13, 2006; (2) interview with Allen on June 15, 2006; (3) 

interview with Allen on August 9, 2007; (4) interview with 

Brenson on January 14, 2003; (5) grand jury testimony of Brenson 

on April 18, 2002; (6) grand jury testimony of Brenson on April 

15, 2008; (7) summary of statements of Allen to Virgil 

McClendon; and (8) statements of Brenson to Allen contained in 

letters. Judgment Entry Denying Defendant Allen's Motion for 

Relief From Prejudicial Joinder (Motion # 30) and Defendant 

Brenson's Motion to Sever Trial (Motion # 29), filed May 23, 2008 

at 2. 

In reviewing the grounds submitted in support of the motions, the 

trial court noted, “Both Defendants maintain that certain 

statements made by the codefendant may tend to incriminate the 

other defendant without the opportunity to cross-examine the codefendant about the statement.” Judgment Entry Denying 

Defendant Allen's Motion for Relief From Prejudicial Joinder 

(Motion # 30) and Defendant Brenson's Motion to Sever Trial 

(Motion # 29), filed May 23, 2008 at 4. 

After reviewing the relevant case law, the trial court found that 

Brenson's statements were admissible in a joint trial with Allen. 

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Specifically, the trial court found, “In reviewing Brenson's 

statements that were provided to the Court, the Court did not find 

any statements in any of Brenson's interviews or grand jury 

testimony that incriminated Allen. Brenson did state that he knew 

Allen and that Allen had worked for him. Brenson also stated that 

he and Allen went to Arizona and Pittsburgh together on jobs and 

that they had met in prison. The statements by Brenson that 

mention Allen merely relate to the relationship between the 

Defendants. The Court finds that the statements of Brenson that the 

State intends to introduce at trial are not admissions or confessions 

that implicate Allen. Therefore, the statements do not pose a 

substantial threat to Allen's right to confront the witnesses against 

him. Thus, Allen's Sixth Amendment right to cross-examine 

witnesses will not be violated by the admission of these 

statements.” Judgment Entry Denying Defendant Allen's Motion 

for Relief From Prejudicial Joinder (Motion # 30) and Defendant 

Brenson's Motion to Sever Trial (Motion # 29), filed May 23, 2008 

at 4. 

The trial court next reviewed copies of letters that Brenson wrote 

to Allen in the jail. These letters are the basis for the tampering 

with evidence charge, which is Count 8 in Brenson's indictment. 

Allen argued that the State intends to use the letter to prove the 

tampering charge, at least in part on the theory that Brenson knew 

law enforcement officers would read his letter to Allen. Allen 

argues that the State intends to use the letter written by Brenson to 

Allen in an attempt to prove that Allen had connections with the 

murder scene because he was acquainted with the victim through 

Brenson and that Allen lied to law enforcement officers when he 

denied knowing the victim or being in Delaware, Ohio. Judgment 

Entry Denying Defendant Allen's Motion for Relief From 

Prejudicial Joinder (Motion # 30) and Defendant Brenson's Motion 

to Sever Trial (Motion # 29), filed May 23, 2008 at 6. 

In ruling that these letters could not be used, the trial court found, 

“the letter written by Brenson to Allen in August of 2007 will not 

be admitted at trial. The letter contains statements that implicate 

Allen, and Allen cannot cross-examine Brenson regarding the 

statements. Further, the letter written by Brenson lacks credibility 

as Brenson admits in the letter that he knows law enforcement 

officers read and copy the mail of the inmates. Thus, Allen will be 

deprived of his rights under the Confrontation Clause, thereby 

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violating Bruton, if the letter written by Brenson implicating him 

in the crime is introduced at their joint trial, even if the jury is 

instructed to consider the contents of the letter only against 

Brenson.” Id. at 6. 

The trial court next reviewed the argument raised by both Allen 

and Brenson that they will be presenting mutually antagonistic 

defenses, and thus a joint trial will violate their constitutional 

rights. Specifically, Allen submits that Brenson's admission of 

having a long-term relationship with the victim, and to meeting 

with him in the hours before his death in order to purchase illegal 

fireworks, would tar Allen's image in the eyes of the jurors. Id. at 

9. In contrast, Brenson's argument for severance centered upon 

statements Allen made to his cellmate.FN6

FN6. See, State v. Brenson, Delaware App. No. 09-CA-18, 2010-

Ohio----. See also, Judgment Entry Denying Defendant Allen's 

Motion for Relief from Prejudicial Joinder (Motion # 30) and 

Defendant Brenson's Motion to Sever Trial (Motion # 29), filed 

May 23, 2008; Summary of Statements filed by the state, May 8, 

2008; Defendant's Motion # 29 to Sever Trial of [Brenson], filed 

April 25, 2008. 

The trial court ruled, “Allen fails to demonstrate how Brenson's 

statements regarding his relationship with the victim or his 

purchase of illegal fireworks from the victim results in the 

presentation of antagonistic defenses by the defendants ... 

Moreover, the trial court can give instructions to the jury relating 

to multiple defendants -- that the jury must separately decide the 

question of guilt or innocence of each of the defendants -- thereby 

curing any risk of prejudice in this case.” Id. at 9. 

Our inquiry, however, does not end there. Allen also claims that, as 

the trial developed, he was substantially prejudiced by the joint 

trial. In the case at bar, Allen renewed his objection to the trial 

court's overruling his pre-trial motion to sever prior to the close of 

the evidence. (13T. at 1810-1812). 

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 Mutually Antagonistic Defenses 

A defendant is not entitled to severance based upon mutually 

antagonistic defenses unless “there is a serious risk that a joint trial 

could compromise a specific trial right of one of the defendants, or 

prevent the jury from making a reliable judgment about guilt or 

innocence.” Zafiro v. United States (1993), 506 U.S. 534, 539, 113 

S.Ct. 933, 937, 122 L.Ed.2d 317. 

“A defendant reaches a level of antagonism (with respect to the 

defense of a co-defendant) that compels severance of that 

defendant, if the jury, in order to believe the core of testimony 

offered on behalf of that defendant, must necessarily disbelieve the 

testimony offered on behalf of his co-defendant. In such a 

situation, the codefendants do indeed become the government's 

best witnesses against each other. Where two defendants present 

defenses that are antagonistic at their core, a substantial possibility 

exists that the jury will unjustifiably infer that this conflict alone 

demonstrates that both are guilty. United States v. Berkowitz (5th 

Cir.1981), 662 F.2d 1127, 1133. (Internal quotation marks 

omitted). (Citations Omitted). Accord, State v. Walters , Franklin 

App. No. 06AP-693, 2007-Ohio-5554, at ¶ 23; State v. Evans,

Scioto App. No. 08CA3268, 2010-Ohio-2554 at ¶ 43. 

“Notwithstanding such assertions, the courts have reversed 

relatively few convictions for failure to grant a severance on 

grounds of mutually antagonistic or irreconcilable defenses. See, 

e.g., United States v. Tootick, 952 F.2d 1078 (C.A.9 1991); United 

States v. Rucker, 915 F.2d 1511, 1512-1513 (C.A.11 1990); United 

States v. Romanello, 726 F.2d 173 (C.A.5 1984). The low rate of 

reversal may reflect the inability of defendants to prove a risk of 

prejudice in most cases.” Zafiro v. United States, supra 506 U.S. at 

538, 113 S.Ct. at 937. 

After a thorough review of the record, we find no evidence 

suggesting that Brenson and Allen intended to present, or did 

present antagonistic defenses at trial. Rather it is clear in the case 

at bar that both Brenson and Allen maintained that he had nothing 

to do with the murder. Neither party presented testimony or 

evidence to incriminate the other person. 

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Accordingly, based on the record before the trial court when Allen 

filed his written pretrial motion for relief from prejudicial joinder, 

we conclude that the trial court did not abuse its discretion in 

denying that motion on the grounds that Allen failed to show a 

mutually antagonistic offense resulting in prejudice. Further, we 

find nothing in the trial court record to demonstrate that either 

Allen or Brenson presented a mutually antagonistic offense 

resulting in prejudice at trial. 

 Spill Over Doctrine 

Allen argues, in essence that a joint trial prejudiced him because of 

the gross disparity in the quantity and nature of the evidence 

against him as compared to that of Brenson. He also asserts that 

the evidence against Brenson is more damaging than the evidence 

against him. 

In a case involving several defendants, the court must take care 

that evidence against one defendant is not misinterpreted by the 

jury and used as the basis for convicting another defendant not 

connected to the evidence. The existence of ... a “spill-over” or 

“guilt transference” effect turns in part on whether the numbers of 

conspiracies and conspirators involved were too great for the jury 

to give each defendant the separate and individual consideration of 

the evidence against him to which he was entitled. United States v. 

Gallo (6th Cir.1985), 763 F.2d 1504, 1526. (Citing United States v. 

Tolliver (2nd Cir.1976), 541 F.2d 958, 962). The primary concern 

is whether the jury will be able to segregate the evidence 

applicable to each defendant and follow the limiting instructions of 

the court as they apply to each defendant. Opper v. United States 

(1954), 348 U.S. 84, 95, 75 S.Ct. 158, 165, 99 L.Ed. 101; See, e.g., 

Kotteakos v. United States (1946), 328 U.S. 750, 766-74, 66 S.Ct. 

1239, 1248-52, 90 L.Ed. 1557,(number of defendants); Blumenthal 

v. United States (1947), 332 U.S. 539, 560, 68 S.Ct. 248, 257, 92 

L.Ed. 154,(trial judge's instructions). United States v. Flaherty (1st 

Cir.1981), 668 F.2d 566, 582; United States v. Causey (6th 

Cir.1987), 834 F.2d 1277. 

The phrase “prejudicial to the rights of the accused” means 

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something more than that a joint trial will probably be less 

advantageous to the accused than separate trials. Such a party must 

show more than that a separate trial would have given him a better 

chance for acquittal. United States v. Gallo, supra at 1526. The 

United States Supreme Court has stated, “a district court should 

grant a severance under Rule 14 only if there is a serious risk that a 

joint trial would compromise a specific trial right of one of the 

defendants, or prevent the jury from making a reliable judgment 

about guilt or innocence.” Zafiro v. United States (1993), 506 U.S. 

534, 539, 113 S.Ct. 933, 122 L.Ed.2d 317. 

The violation of one of his substantive rights by reason of the joint 

trial include: unavailability of full cross-examination, lack of 

opportunity to present an individual defense, denial of Sixth 

Amendment confrontation rights, lack of separate counsel among 

defendants with conflicting interests, or failure properly to instruct 

the jury on the admissibility of evidence as to each defendant. See 

United States v. Camacho (9th Cir.) 528 F.2d 464, 470, cert. 

denied, 429 U.S. 995, 96 S.Ct. 2208, 48 L.Ed.2d 819 (1976); 

United States v. Fernandez (9th Cir.2004), 388 F.3d 1199, 1241. 

It is difficult to meet this burden by claiming that the jury probably 

considered evidence against one defendant that was introduced 

only against another: “juries are presumed to be capable of 

following instructions regarding the sorting of evidence and the 

separate consideration of multiple defendants.” United States v. 

Franklin (6th Cir.2005), 415 F.3d 537, 556 (citations omitted). 

Even where the risk of prejudice is high, “less drastic measures, 

such as limiting instructions, often will suffice to cure any risk of 

prejudice.” Zafiro v. United States, supra. Indeed, “[a] request for 

severance should be denied if a jury can properly 

compartmentalize the evidence as it relates to the appropriate 

defendants.” United States v. Causey (6th Cir.1987), 834 F.2d 

1277, 1287. Thus, to prevail on his severance argument, an 

appellant must show “compelling, specific, and actual prejudice 

from [the] court's refusal to grant the motion to sever.” United 

States v. Saadey (6th Cir. 2005), 393 F.3d 669, 678; United States 

v. Driver (6th Cir. 2008), 535 F.3d 424, 427; Crim.R. 14. 

 Admission of Brenson's Statements 

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In the case at bar, Allen claims that he was prejudiced by the many 

statements made by Brenson that were admitted into evidence 

during the trial FN7. However, Allen fails to demonstrate how 

Brenson's out-of-court statements, none of which implicated Allen, 

prejudiced him. Specifically, Allen contends the jury heard 

Brenson's grand jury testimony on two different occasions about 

what happened on the dates and times in question and how it most 

of it was contradicted by the evidence and statements of other 

witnesses. [Appellant's Brief at 19]. More specifically, Allen points 

out that the jury heard, 

FN7. Evidence that Brenson and Herrell met while in prison was 

not objected to at trial. (14T. at 1983-1984). See, State v. Grubb

(1986), 28 Ohio St.3d 199,203,503 N.E.2d 142. Accordingly, 

appellant has waived all but plain error. Puckett v. United States

(2009), --- U.S. ----, ----, 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266. 

“Mr. Brenson's statement about there being thirty pounds of 

marijuana in Mr. “Duck” Herrell's residence and the statements of 

Mr. Herrell's family that it did not exist; 

“Mr. Brenson's statement about having a coat on in July and the 

Meijer's-receipt failing out; 

“Mr. Brenson's statements that he knew Mr. “Duck” Herrell's 

hiding places and where he kept his money; 

“Mr. Brenson's statements about how he knew of the fireworks 

shipment and his multiple trips obtain them; 

“Mr. Brenson's statements about buying fireworks for the last five 

or six years and reselling them; 

“Mr. Brenson's statements about borrowing money to purchase the 

fireworks; 

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“Mr. Brenson's multiple stories about what he did with his license 

plate after the stop by Trooper; 

“Mr. Brenson's statements about how he bought zip ties to attach 

his front license place, and the photograph showing it attached 

with wire; 

“Mr. Brenson's statements about whether or not Mr. “Duck” 

Herrell assisted him in loading the truck with fireworks; 

“Mr. Brenson's statements about whether or not it was raining; and 

“Finally Mr. Brenson's statements about when he got home.” 

[Appellant's Brief at 28-29]. Allen argues that “all of this evidence 

and the statements of Mr. Brenson that were discredited painted 

him in a bad light and showed the strength of the State's case 

against him. All of this evidence spilled over to Appellant because 

a key part of the State's case against Appellant is that he was Mr. 

Brenson's right hand man ...” [ Id. at 29]. We note that these are the 

same statements that the trial court ruled were admissible. See, 

Judgment Entry Denying Defendant Allen's Motion for Relief 

From Prejudicial Joinder (Motion # 30) and Defendant Brenson's 

Motion to Sever Trial (Motion # 29), filed May 23, 2008 at 2; 5-6; 

9. 

In the case at bar, before deliberations, the trial court specifically 

admonished the jury that “Evidence may be admitted against one 

defendant, even though it must not be considered as evidence 

against the other defendant. You must carefully separate such 

evidence and consider it only as to the defendant to whom it 

applies. 

“A statement by one defendant made outside the presence of the 

other defendant is admissible as to the defendant making such 

statement and must not be considered for any purpose as evidence 

against the other defendant. 

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“You must decide separately the question of whether one or both 

defendants are guilty or not guilty. If you cannot agree on a verdict 

as to both defendants, but do agree as to one, you must render a 

verdict as to the one upon whose guilty or not guilty finding you 

agree.” (17T. at 2588); See also Judgment Entry Denying 

Defendant Allen's Motion for Relief From Prejudicial Joinder 

(Motion # 30) and Defendant Brenson's Motion to Sever Trial 

(Motion # 29), filed May 23, 2008 at 9. 

In the absence of any indication that the jury disregarded the 

court's instructions, we fail to see how the statements made by 

Brenson, or the claimed inconsistencies between those statements, 

could substantially have prejudiced Allen. Here, Brenson's 

statement did not directly implicate or even mention Allen. 

Brenson neither confessed to the crime himself nor incriminated 

Allen in his statements. Instead, Brenson asserted that he was not 

present when the murder was committed. While the weakness of 

Brenson's statements may implicate him in the crime, it does not 

implicate Allen. However, even if the statements were found to 

indirectly incriminate Brenson in the commission of the crimes, the 

evidence would not warrant a separate trial. “It would impair both 

the efficiency and the fairness of the criminal justice system to 

require, in all cases of joint crimes where incriminating statements 

exist, that prosecutors bring separate proceedings, presenting the 

same evidence again and again, requiring victims and witnesses to 

repeat the inconvenience (and sometimes trauma) of testifying, and 

randomly favoring the last-tried defendants who have the 

advantage of knowing the prosecution's case beforehand.” 

Richardson v. Marsh, supra, 481 U.S. at 210, 107 S.Ct. 1702, 95 

L.Ed.2d 176. 

“[A] defendant is not entitled to a severance simply because the 

evidence against a co-defendant is far more damaging than the 

evidence against him. As we noted in United States v. Warner, 690 

F.2d 545, 553 (6th Cir.1982): We recognize that, in a joint trial, 

there is always a danger that the jury will convict on the basis of 

the cumulative evidence rather than on the basis of the evidence 

relating to each defendant. However, we adhere to the view, as 

previously stated by our court, that [t]he jury must be presumed 

capable of sorting out the evidence and considering the case of 

each defendant separately. Id. (citations omitted). The presentation 

of evidence applicable to more than one defendant is simply a fact 

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of life in multiple defendant cases.” Driver, supra 535 F.3d at 427. 

(Citing Causey, supra 834 F.2d at 1288). (Internal quotation marks 

omitted). 

In Bruton v. United States (1968), 391 U.S. 123, 135-136, 88 S.Ct. 

1620, 20 L.Ed.2d 476, the United States Supreme Court noted: 

“ * * * Not every admission of inadmissible hearsay or other 

evidence can be considered to be reversible error unavoidable 

through limiting instructions; instances occur in almost every trial 

where inadmissible evidence creeps in, usually inadvertently. “A 

defendant is entitled to a fair trial but not a perfect one.” * * * It is 

not unreasonable to conclude that in many such cases the jury can 

and will follow the trial judge's instructions to disregard such 

information.” 

Where, however, “the contested statement is not incriminating to a 

defendant on its face, but is only so when linked with other 

evidence at trial, a trial court's limiting instruction is enough to 

restrain the jury from considering the statement for a purpose that 

would violate the defendant's right to confrontation.” State v. 

Wilkerson, 10th Dist. No. 01 AP-1127, 2002-Ohio-5416, ¶ 43, 

citing State v. Laird (1989), 65 Ohio App.3d 113, 115-17, 583 

N.E.2d 323, following Richardson v. Marsh (1987), 481 U.S. 200, 

107 S.Ct. 1702, 95 L.Ed.2d 176. See, also State v. Jennings,

Franklin App. Nos. 09 AP-70, 09 AP-75, 2009-Ohio-6840 at ¶ 71. 

Even where a trial court violates the Bruton rule, “such [a] 

violation of an accused's right to confrontation and crossexamination is not prejudicial where sufficient independent 

evidence of an accused's guilt renders improperly admitted 

statements harmless beyond a reasonable doubt. State v. Wilkerson,

supra, citing State v. Moritz (1980), 63 Ohio St.2d 150, 407 N.E.2d 

1268, paragraph two of the syllabus. (Internal quotation marks 

omitted). See also Schneble v. Florida (1972), 405 U.S. 427, 430, 

92 S.Ct. 1056, 1059, 31 L.Ed.2d 340. 

Finally, the trial court gave specific and correct limiting 

instructions to restrain the jury from considering the statements for 

a purpose that would violate the appellant's right to 

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confrontation.FN8

FN8. As previously noted, appellant did not object to these 

instructions and does not challenge them on appeal. 

Brenson's “Other Acts” Evidence 

Allen further argues that he was substantially prejudiced by 

evidence that was introduced at trial that Allen, the police, the 

victim and the victim's children knew Brenson not by his true 

name, but rather by his aliases; that Brenson had used his son's 

names and social security number when he checked himself into 

the hospital the day after the murder took place; that Brenson had 

fathered children while not married and that he had engaged in an 

extramarital affair. Allen argues that the evidence against Brenson 

“spilled over” to Allen allowing him to be convicted not on the 

evidence against him, but the evidence against Brenson. 

We begin by noting that the indictment in the case at bar is 

captioned, in relevant part as “William T. Allen and James A. 

Brenson, Jr. (AKA James Brenson, Sr., James X. Brenson II, 

Jonquail Kirkland. James Abdullah Muhammad, Mustafa A. 

Muhammad, John Noble, James O. Wilson, K.W. Yowpp, K. 

Wallace Yowpp.” (Indictment, filed March 16, 2008). Therefore, it 

is disingenuous for Allen to argue that he was unaware prior to 

trial that the state would introduce evidence that Brenson was 

known by various aliases. Further, we find that Allen made no 

mention of potential prejudice from the introduction of this 

evidence in his pre-trial motion to sever. 

Brenson has challenged the admissibility of this “other act” 

evidence in his appeal. See, State v. Brennon, Delaware App. No. 

09-CA-19, 2010-Ohio---- In that case we found that the evidence 

that Brenson was known by other names, including “Muhammad” 

or “Mustafa Muhammad” and “K.W. Kowpp” were not utilized to 

demonstrate criminal disposition or propensity; rather the evidence 

demonstrates the connection between Allen and Brenson and 

between Herrell and Brenson.FN9

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FN9. Brenson's wife at the time, Robin Muhammad, testified that 

the couple was Muslim. (16T. at 2355). Accordingly, 

“Muhammad” may be Brenson's Muslim name and, therefore not 

an “alias.” Further, Brenson identified himself to the grand jury on 

April 15, 2008 as “James Muhammad.” (13T. at 1822). 

Specifically, Detective Leatherman testified that he spoke to Allen 

at his residence (14T. at 2032). He showed Allen some unmarked 

photographs ( Id. at 2033). The first photograph he showed Allen 

was of Mr. Brenson. ( Id. at 2033). Allen identified the photograph 

as “Muhammad” ( Id. at 2033). Allen indicated that he and 

Brenson were friends ( Id. at 2034). Allen indicated that he and 

Brenson were “good” or “close” friends ( Id. at 2034). Allen 

indicated that he and Brenson had known each other for “quite 

awhile” ( Id. at 2034). Herrell's children also identified a 

photograph of Brenson as “Muhammad” an individual who knew 

their father; and lastly when Brenson checked into a hospital the 

morning after the murder, he used the name Mustafa Muhammad. 

The use of the alias “K.W. Kowpp” would also be relevant as it 

related to the identity of the person [who] signed a Meijer receipt 

dated June 9, 2000 from a Toledo-area store in the name of K .W. 

Yowpp, and this receipt was dropped in the victim's home on the 

night of the murder June 11, 2000. 

Accordingly, this evidence is permissible under Rule 404(b). It 

was not utilized to demonstrate or to establish criminal disposition 

or propensity; rather the evidence demonstrates the connection 

between Allen and Brenson and between Brenson and Herrell. The 

aliases are relevant to prove identification: that the same person 

who drove a truck from Toledo to Delaware, who dropped a Meijer 

receipt in the victim's house on the night of the murder, and who 

sought medical treatment the day after the brutal killing was 

Brenson despite three different names used. 

Further, evidence that Brenson assumed the alias Mustafa 

Muhammad immediately after the crimes occurred was admissible 

to show consciousness of guilt, “It is today universally conceded 

that the fact of an accused's flight, escape from custody, resistance 

to arrest, concealment, assumption of a false name, and related 

conduct, are admissible as evidence of consciousness of guilt, and 

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thus of guilt itself.” State v. Eaton (1969), 19 Ohio St.2d 145, 160, 

48 O.O.2d 188, 196, 249 N.E.2d 897, 906, vacated on other 

grounds (1972), 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 750, 

quoting 2 Wigmore, Evidence (3 Ed.) 111, Section 276.” State v. 

Williams (1997), 79 Ohio St.3d 1, 11, 679 N.E.2d 646, 657. The 

evidence further served to corroborate Allen's identification of 

Brenson. 

Finally, Brenson admitted to using these names in his 

conversations with the police. (13T. at 1822; 1834; 1857; 1858). 

Because Allen was charged with complicity, this evidence was 

relevant and admissible against Allen. 

R.C. 2923.03 provides: “(A) No person, acting with the kind of 

culpability required for the commission of an offense, shall do any 

of the following: 

 “ * * * 

 “(2) Aid or abet another in committing the offense .” 

R.C. 2923.03(F) states, “A charge of complicity may be stated in 

terms of this section, or in terms of the principal offense.” 

“The Supreme Court of Ohio clarified Ohio's position on the issue 

of complicity in State v. Perryman (1976), 49 Ohio St.2d 14, 358 

N.E.2d 1040, vacated in part on other grounds sub nom, Perryman 

v. Ohio (1978), 438 U.S. 911, 98 S.Ct. 3136, 57 L.Ed.2d 1156. The 

court unequivocally approved of the practice of charging a jury 

regarding aiding and abetting even if the defendant was charged in 

the indictment as a principal. Id. The court held that the indictment 

as principal performed the function of giving legal notice of the 

charge to the defendant. Id. Therefore, if the facts at trial 

reasonably supported the jury instruction on aiding and abetting, it 

is proper for the trial judge to give that charge. Perryman, supra at 

27, 28, 358 N.E.2d 1040.” State v. Payton (April 19, 1990), 8th 

Dist. Nos. 58292, 58346. 

R.C. 2923.03(F) adequately notifies defendants that the jury may 

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be instructed on complicity, even when the charge is drawn in 

terms of the principal offense. See State v. Keenan (1998), 81 Ohio 

St.3d 133, 151, 689 N.E.2d 929, 946, citing Hill v. Perini (C.A.6, 

1986), 788 F.2d 406, 407-408. State v. Herring (2002), 94 Ohio 

St.3d 246, 251 762 N.E.2d 940, 949. 

“[To] support a conviction for complicity by aiding and abetting 

pursuant to R.C. 2923.03(A)(2), the evidence must show that the 

defendant supported, assisted, encouraged, cooperated with, 

advised, or incited the principal in the commission of the crime, 

and that the defendant shared the criminal intent of the principal.” 

State v. Johnson (2001), 93 Ohio St.3d 240, 754 N.E.2d 796, 

syllabus. 

Although the state need not establish the principal's identity, it 

must, at the very least, prove that a principal committed the 

offense. State v. Perryman (1976), 49 Ohio St.2d 14, 358 N.E.2d 

1040, paragraph four of the syllabus; State v. Hill (1994), 70 Ohio 

St.3d 25, 28, 635 N.E.2d 1248, 1251. However, the state does not 

need to prove that the accomplice and principal had a specific plan 

to commit a crime. Johnson, 93 Ohio St.3d at 245, 754 N.E.2d 

796. The fact that the defendant shares the criminal intent of the 

principal may be inferred from the circumstances surrounding the 

crime, which may include the defendant's presence, 

companionship, and conduct before and after the offense is 

committed. Id. at 245-246, 754 N.E.2d 796. This is a situation 

where “[c]ircumstantial evidence and direct evidence inherently 

possess the same probative value,” State v. Jenks (1991), 61 Ohio 

St.3d 259, 574 N.E.2d 492, paragraph one of the syllabus, because 

“[t]he intent of an accused person dwells in his mind. Not being 

ascertainable by the exercise of any or all of the senses, it can 

never be proved by the direct testimony of a third person, and it 

need not be.” In re Washington, 81 Ohio St.3d 337, 340, 691 

N.E.2d 285, 1998-Ohio-627, quoting State v. Huffman (1936), 131 

Ohio St. 27, 1 N.E.2d 313, paragraph four of the syllabus. 

Finally, we note the jury was aware Brenson used the names 

“Muhammad” “Mustafa Muhammad” and “K.W. Kowpp.” The 

revelation that he also used the name “Jonquail Kirkland” or “M.A. 

Muhammad” or “Robin Shabazz” would be merely cumulative. 

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We find no error, plain or otherwise from the admission of 

evidence that Brenson was known by other names. We find that 

there was “no reasonable possibility” that the testimony concerning 

Brenson's use of these other names contributed to Allen's 

conviction, and any error was harmless beyond a reasonable doubt. 

See State v. Rahman (1986), 23 Ohio St.3d 146, 151, 492 N.E.2d 

401, 407. 

We find that appellant did not meet his burden of demonstrating 

actual prejudice because of the admission of this evidence in a 

joint trial with Brenson. 

 Extra-Marital Affair and Children 

Evidence of Brenson's numerous children and his extra-marital 

affairs was not used to depict him as a “serial womanizer and 

adulterer”; rather the evidence was used to impeach Brenson’s 

alibi witness. 

In the case at bar, Brenson called his ex-wife Robin Muhammad as 

an alibi witness. (16T. at 2341). Ms. Muhammad testified that she 

had been married to Brenson from 1992 through 2002. ( Id. at 

2344, 492 N.E.2d 401). Ms. Muhammad testified that Allen had 

worked with Brenson in Toledo and would see him every few 

months. (16T. at 2346). 

Ms. Muhammad testified that she recalled giving Brenson $800.00 

around the time of the murder. (16T. at 2359-2360). She testified 

that this was money that Brenson used to buy fireworks from 

Herrell. She further testified that she specifically remembers 

Brenson bringing the fireworks home around the night of the 

murder. ( Id. at 2353, 492 N.E.2d 401). The children were in bed 

and Brenson put the boxes of fireworks on the kitchen table. (Id.). 

Ms. Muhammad was able to recall that it was raining when 

Brenson arrived home in Toledo. ( Id. at 2354, 492 N.E.2d 401). 

Ms. Muhammad also testified that Brenson did not have any blood 

on him, his clothing, or the boxes of fireworks. (16T. at 2356). Ms. 

Muhammad testified on direct examination that the day after the 

murder, Brenson checked into the hospital. ( Id. at 2357-2358, 492 

N.E.2d 401). Further Ms. Muhammad claimed that Brenson had 

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purchased fireworks from Herrell for three to four years. ( Id. at 

2359, 492 N.E.2d 401). 

On cross-examination, Ms. Muhammad admitted that Brenson 

checked into the hospital as “Mustafa Muhammad.” ( Id. at 2361, 

492 N.E.2d 401). Further, Brenson listed Ms. Muhammad on the 

hospital admission form as his unemployed sister despite the fact 

that she had a job as a home health aide. ( Id. at 2362, 492 N.E.2d 

401). The prosecution used property records to show that the 

address he gave the hospital was for a piece of property that 

Brenson had transferred between his sons' names, Robin's name, 

and the name Jonquail Kirkland. The prosecution also used BMV 

records to show that Brenson had used his sons' names and Robin's 

name to get identification, and had obtained identification using 

the names Yowpp and Kirkland. (16T. at 2374-75, 2377, 2382-83). 

The parties stipulated to the medical records. (16T. at 2339; 2398). 

The prosecutor then proceeded to delve into Ms. Muhammad's 

knowledge of Brenson's past and his whereabouts when he was 

absent from the home. 

The prosecutor proceeded to ask Ms. Muhammad about Brenson's 

whereabouts during the years of 1995 to 1999 and whether she was 

aware that he was living with a girlfriend, LaLitre, in Florida 

during that time. (16T. at 2390). Then the prosecutor turned to 

asking Ms. Muhammad if she knew Holly Lewis. Ms. Muhammad 

responded, “I think she used to work for a radio station doing 

advertising.” The prosecutor then responded, “Did your husband 

ever tell you that he and Holly had a long term relationship and he 

drove down to Columbus about five times a year over a five year 

period to see her?” ( Id. at 2392, 492 N.E.2d 401). 

The prosecutor further inquired, “Do you know if they [Brenson's 

children with LaLitre] were born in the course of your marriage?” 

Ms. Muhammad responded, “Yes.” The prosecution asked, “What 

about Minimah?” and Ms. Muhammad responded, “yes.” The 

prosecutor then asked Ms. Muhammad, regarding Brenson's 

children with other women, “I'm up to ten. Do you know how 

many children he had in total?” 

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The prosecutor proceeded to ask Ms. Muhammad about Brenson’s 

other children and the mothers of those children. If she knew how 

much time he spent with these other family members. 

As previously noted, Brenson admitted to using these names in his 

conversations with the police. (13T. at 1822; 1834; 1857; 1858). 

Further, Brenson told the police that he had traveled to Columbus 

the day before Herrell was murdered to visit Holly Lewis. (13T. at 

1836). He described his relationship with Ms. Lewis as “romantic.” 

(Id. at 1836-1837, 492 N.E.2d 401). Brenson further stated that he 

met Ms. Lewis in a motel in Columbus four to five times a year 

from 1989 through 2000. (13T. at 1838-1839). 

The United States Supreme Court described bias as “the 

relationship between a party and a witness which might lead the 

witness to slant, unconsciously or otherwise, his testimony in favor 

of or against a party. Bias may be induced by a witness' like, 

dislike, or fear of a party, or by the witness' self-interest.” United 

States v. Abel (1984), 469 U.S. 45, 52, 105 S.Ct. 465, 83 L.Ed.2d 

450. It is fundamental that the bias of a witness may be explored to 

test credibility. State v. Gavin (1977), 51 Ohio App.2d 49, 53, 365 

N.E.2d 1263. Furthermore, the potential bias of a witness is always 

significant in the assessment of the witness' credibility, as “the 

Trier of fact must be sufficiently informed of the underlying 

relationships, circumstances, and influences operating on the 

witness ‘so that, in the light of his experience, he can determine 

whether a mutation in testimony could reasonably be expected as a 

probable human reaction.’” State v. Williams (1988), 61 Ohio 

App.3d 594, 597, 573 N.E.2d 704, citing 3 Weinstein, Evidence 

(1988), Section 607[03]. 

Reasonable cross-examination includes not only the opportunity to 

impeach a witness: “[c]ross-examination is the principal means by 

which the believability of a witness and the truth of his testimony 

are tested. Subject always to the broad discretion of a trial judge to 

preclude repetitive and unduly harassing interrogation, the crossexaminer is not only permitted to delve into the witness' story to 

test the witness' perceptions and memory, but the cross-examiner 

has traditionally been allowed to impeach, i.e., discredit, the 

witness”. Davis v. Alaska, (1974), 415 U.S. 308, 316, 94 S.Ct. 

1105, 39 L.Ed.2d 347, but also the exposure of a witness' 

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motivation in testifying: ‘A more particular attack on the witness' 

credibility is effected by means of cross-examination directed 

toward revealing possible biases, prejudices, or ulterior motives of 

the witness as they may relate directly to issues or personalities in 

the case at hand. The partiality of a witness is subject to 

exploration at trial, and is ‘always relevant as discrediting the 

witness and affecting the weight of his testimony.’ 3A J. Wigmore 

Evidence Section 940, p. 775 (Chadbourn rev.1970). We have 

recognized that the exposure of a witness' motivation in testifying 

is a proper and important function of the constitutionally protected 

right of cross-examination. [415 U.S. 317]”. Greene v. McElroy,

(1959), 360 U.S. 474, 496, 79 S.Ct. 1400, 3 L.Ed.2d 1377. See 

also, Davis, 415 U.S. at 316-317. Olden v. Kentucky, (1988), 488 

U.S. 227, 109 S.Ct. 480, 102 L.Ed.2d 513; Delaware v. Van 

Arsdall (1986), 475 U.S. 673, 678-679, 106 S.Ct. 1431, 89 L.Ed.2d 

674. 

Thus, demonstrating to the jury Robin's knowledge and 

acquiescence in Brenson's providing false information and using 

false identities was reasonable in assessing her credibility as an 

alibi witness. Further, her lack of knowledge on many key aspects 

of Brenson's life suggests that she was unaware of his activities 

when he was not present within the home. Additionally, her lack of 

knowledge of Brenson's whereabouts on the day preceding the 

murder is pivotal in assessing the credibility of her alibi testimony. 

Contrary to Allen's contentions, the prosecution's questions were 

relevant concerning Ms. Muhammad's' credibility and possible bias 

in this case. Evid.R. 616(A) states that “[b]ias, prejudice, interest, 

or any motive to misrepresent may be shown to impeach the 

witness either by examination of the witness or by extrinsic 

evidence.” Clearly, these questions were relevant to develop Ms. 

Muhammad's prejudice or interest in fabricating an alibi to protect 

him. 

This evidence did not discredit Allen personally, and his arguments 

that the jury used this evidence to convict him are far too 

speculative and tenuous to rise to the level necessary to show 

sufficient prejudice warranting a reversal.FN10 Evidence that is 

prejudicial only in the sense that it paints the defendant in a bad 

light is not unfairly prejudicial....” United States v. Sanders (6th 

Cir.1996), 95 F.3d 449, 453. 

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FN10. The dissent's reliance on United States v. Breinig (6th 

Cir.1995), 70 F.3d 850 is misplaced. In Breinig, the defendant was 

tried jointly with his ex-wife on charges of tax evasion and she was 

acquitted. At trial, each defendant denied responsibility for evading 

tax obligations and cast blame on the other. Severance was proper 

in Bering because his wife, who was also his co-defendant, 

introduced evidence of Bering's bad character in an attempt to 

exonerate herself and inculpate him. Such was not the case in the 

case at bar. Neither Brenson nor Allen introduced evidence of the 

other's “bad character,” or sought to prove that the other controlled 

or dominated him to such an extent that his will was overborne. In 

fact, Allen's character, unlike Bering's, was never assailed during 

the trial. Thus, this is not “an extraordinary case” as suggested by 

the dissent. 

Merely because alleged inflammatory evidence is admitted against 

one defendant, not directly involving another co-defendant, does 

not in and of itself show substantial prejudice in the latter's trial. 

See United States v. Gallo (C.A.6, 1985), 763 F.2d 1504, 1525. 

See also United States v. Causey, 834 F.2d 1277, 1288 (6th 

Cir.1987), cert. denied, 486 U.S. 1034, 108 S.Ct. 2019, 100 

L.Ed.2d 606 (1988) (“[A] defendant is not entitled to a severance 

simply because the evidence against a codefendant is far more 

damaging than the evidence against him.”); State v. Smith, Butler 

App. No CA2008-03-064, 2009-Ohio-5517 at ¶ 70. 

The United States Supreme Court has explained, “When there are 

few defendants and the trial court is aware of the potential for 

prejudice, ‘the risk of transference of guilt over the border of 

admissibility [may be] reduced to the minimum’ by carefully 

crafted limiting instructions with a strict charge to consider the 

guilt or innocence of each defendant independently. [ Blumenthal 

v. United States, 332 U.S. 539, 560, 68 S.Ct. 248, 257]. We cannot 

necessarily ‘assume that the jury misunderstood or disobeyed’ such 

instructions. Id., at 553, 68 S.Ct. at 254. Indeed, this Court's 

conclusion in Schaffer [ (1960), 362 U.S. 511, 80 S.Ct. 945] that 

defendants failed to show prejudice was based directly on the fact 

that ‘the judge was acutely aware of the possibility of prejudice 

and was strict in his charge -- not only as to the testimony the jury 

was not to consider, but also as to that evidence which was 

available in the consideration of the guilt of each [defendant] 

separately under the respective substantive counts.’ 362 U.S., at 

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516, 80 S.Ct. at 948. The same caution was exercised by the trial 

judge here, and no different result should be required.” United 

States v. Lane (1986), 474 U.S. 438, 106 S.Ct. 725 at n. 13, 88 

L.Ed.2d 814. 

The more fundamental problem with Allen's 404(b) position, and 

his argument based on prejudicial joinder generally, is that it 

reflects a skepticism about the ability of the Court to craft limiting 

instructions regarding specific evidence and the ability or 

inclination of the jury to follow them. “A defendant seeking 

severance based on the ‘spillover’ effect of evidence admitted 

against a co-defendant must also demonstrate the insufficiency of 

limiting instructions given by the judge.” United States v. Joetzki

(9th Cir.1991), 952 F.2d 1090, 1094. Allen insists that the jury in 

this case found him guilty of the most serious crime of aggravated 

murder because he associated with, as Allen argues, “a lying exconvict, who cheated on his wife.” [Appellant's Brief at 30]. This 

lack of faith in the jury's capacity to follow instructions is contrary 

to experience and contrary to “the almost invariable assumption of 

the law that jurors follow their instructions.” Richardson v. Marsh,

481 U.S. 200, 211, 107 S.Ct. 1702, 95 L.Ed.2d 176 (1987) (citing 

Francis v. Franklin, 471 U.S. 307, 325 n. 9, 105 S.Ct. 1965, 85 

L.Ed.2d 344 (1985)). 

“Jurors are called upon to serve in accordance with the law and to 

decide what facts have been proved and whether they have been 

proved beyond a reasonable doubt. Citizens do not assume this 

mantle lightly. Doubts and skepticism may be warranted in 

measuring the way other parts of government work, but they are 

unwarranted with [Delaware County] juries. I do not believe that 

the alleged wrongdoing in this case and any defenses to the alleged 

wrongdoing are beyond the comprehension of the typical juror. 

The jury in this case ... approach[ed] their service with great care 

and attention and will strive to treat each defendant fairly and 

individually. They [were] given detailed guidance and limiting 

instructions from the Court.” United States v. W.R. Grace (Mont 

2006), 439 F.Supp. 1125, 1135. 

Appellant has not shown that the jury abandoned their oaths, their 

integrity or the trial court's instructions and found appellant guilty 

of the most serious crime of aggravated murder because he 

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associated with Brenson In fact in closing argument to the jury, 

Allen utilized the theme that he, Allen, in no way tried to hide his 

identity and that he was only involved in this case because he knew 

Brenson. (14T. at 2452-2455). 

In the case at bar it is difficult to believe that the jury -- aided by 

instructions -- would have been unable to distinguish between 

evidence relating to Brenson and evidence relating to Allen. 

The evidence introduced that specifically related to Allen included 

DNA collected from the cuff of the glove matched one-in-thirty 

people, with one being Allen. Brenson was definitely excluded as a 

contributor to that DNA. (12T. at 1559-1560; 1582; 1699; 13T. at 

1731). 

Further, both the victim and Brenson were definitively excluded as 

sources of DNA found on the blue shirt. ( Id. at 1573; 13T. at 

1731). Testimony was elicited that the shirt did not belong to 

Herrell or to any member of his family. (10T. at 1073). That shirt 

also contained DNA consistent with Allen and his wife. (State's 

Exhibit 89). The proportion of the population that cannot be 

excluded as a possible contributor to the DNA on the blue shirt “is 

one in sixteen million seven hundred and seventy thousand 

unrelated individuals.” (13T. at 1700) FN11. This means that if 

sixteen million seven hundred seventy thousand people were tested 

there would be only one person who could not be excluded as a 

contributor to the DNA sample. ( Id.). Every other one of the over 

sixteen million individuals tested would be excluded as a source of 

the DNA sample. ( Id. at 1701). 

FN11. The only reference by appellant as to how this shirt ended 

up in the home of the victim was that perhaps Brenson left it there. 

[14T. at 2450-2451]. In the alternative, the crime laboratory 

investigators contaminated it. [ Id. at 2447-2449]. 

In addition, the DNA from both the blue shirt and the glove was 

tested and found not to be consistent with three other individuals 

for whom the police had submitted DNA samples for testing. ( Id.

at 1575-1576; 1586-1587). 

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The shirt containing DNA consistent with that of Allen and his 

wife was found inside a home where a murder occurred, two to 

three feet from the blood soaked glove. (14T. at 1921; 1924; State's 

Exhibit 2-C). Obviously, the presence in the home of the blue shirt 

containing Allen and his wife's DNA may be consistent with 

innocent causes, but the presence of the blue shirt is also consistent 

with Allen's participation in the crimes. 

The courts agree that, “ ‘DNA testing can provide powerful new 

evidence unlike anything known before.’ District Attorney's Office 

for Third Judicial Dist. v. Osborne, 557 U.S. ----, ----, 129 S.Ct. 

2308, 2316, 174 L.Ed.2d 38 (2009).’” McDaniel v. Brown (2010), 

--- U.S. ----, 130 S.Ct. 665, 675, 175 L.Ed.2d 582. 

DNA evidence is not “novel” to Ohio courts. In State v. Pierce

(1992), 64 Ohio St.3d 490, 597 N.E.2d 107, the Court recognized 

that “the theory and procedures used in DNA typing are generally 

accepted within the scientific community.” 64 Ohio St.3d at 497, 

597 N.E.2d 107. Further, the Court held in Pierce that “questions 

regarding the reliability of DNA evidence in a given case go to the 

weight of the evidence rather than its admissibility. The Trier of 

fact * * * can determine whether DNA evidence is reliable.” 

Pierce, 64 Ohio St.3d at 501, 597 N.E.2d 107. (Emphasis added.) 

Accord State v. Nicholas, 66 Ohio St.3d 431, 437, 613 N.E.2d 225 

(1993) ( “DNA results constitute reliable evidence”). 

Allen does not argue on appeal that the trial court erred in 

admitting either DNA evidence recovered from the blue shirt or the 

blood soaked glove found near the blue shirt inside Herrell's home. 

This additional DNA evidence was corroborating evidence that 

linked Allen to the commission of this crime. 

Two cases are particularly relevant to the Court's current inquiry. 

First, in United States v. Bonds, the Sixth Circuit, in conducting a 

Rule 403 balancing of certain DNA evidence, found that the 

evidence was “clearly probative” because it “linked [defendant] to 

the murder scene when no direct evidence existed to do so.” 

Bonds, 12 F.3d at 567. The Court noted, “unfair prejudice” “does 

not mean the damage to a defendant's case that results from the 

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legitimate probative force of the evidence; rather it refers to 

evidence which tends to suggest decision on an improper basis.” 

Id. at 567. (Internal quotation marks and citations omitted). The 

Sixth Circuit found that “[t]he aura of reliability surrounding DNA 

evidence does not present the prospect of a decision based on the 

perceived infallibility of such evidence, especially in a case such as 

this where the evidence is largely circumstantial.” Id. at 567-68. 

The DNA evidence collected from the shirt and the glove in the 

case at bar are similar. That DNA evidence has probative value 

because it shows that Allen cannot be excluded from that particular 

article of evidence. Further, it shows that Brenson and the victim 

can be excluded from a connection to the shirt and further, Brenson 

can be excluded as a contributor to the DNA recovered from the 

blood soaked glove. Importantly, the Bonds court stressed that 

“[the] defendants' concern that the jury relied unduly on this 

circumstantial DNA evidence cannot be resolved by excluding the 

evidence under Rule 403.” Id. Rather, “[t]heir concern is 

accommodated through a Rule 29 motion for judgment of acquittal 

to assure that the Government produced enough evidence, 

circumstantial or direct, to support a jury verdict.” Id. (citing 

Daubert, 509 U.S. at 596, 113 S.Ct. 2786, 125 L.Ed.2d 469 (“the 

court remains free to direct a judgment and likewise to grant 

summary judgment”) (citations omitted). 

United States v. Hicks, 103 F.3d 837 (9th Cir.1996), is also 

particularly relevant. Similar to the instance of low statistical DNA 

significance in the case at bar concerning the DNA recovered from 

the blood soaked glove “the PCR testing [in Hicks ] did not result 

in a statistical probability that Hicks contributed to the sample; it 

only concluded that Hicks could not be excluded as a contributor to 

the sample.” Id. at 846 (emphasis in original). Upon a Rule 403 

analysis of the evidence, the Ninth Circuit found: 

“Besides the doubtful prejudice that the single PCR result 

produced in this case (since none of the three perpetrators could be 

excluded as possible contributors to the sample), the evidence had 

the probative value of helping to identify the carjackers. It was 

almost certainly not sufficient evidence to identify Hicks as one of 

the carjackers, but it helped to corroborate other evidence of 

identity to build a wall of evidence supporting that conclusion. The 

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probative value of the PCR results was not substantially 

outweighed by the prejudice to Hicks of the evidence.” Id.

In the case at bar Allen cannot be excluded as contributor to the 

DNA recovered from the blood soaked glove. As such, the DNA 

evidence remains probative, and helps to corroborate other 

evidence and support the state's case as to the identity of the 

relevant perpetrators. Indeed, the low statistical significance 

actually benefits Allen, as Allen argued to the jury in his case. 

Given this avenue of attack, Allen significantly reduced any 

prejudice or risk associated from the introduction of low-value 

DNA evidence. However, the jury remained free to assign this 

evidence whatever weight it deemed proper in arriving at the 

verdict. 

“Questions about the certainty of the scientific results are matters 

of weight for the jury. For example, in discussing the fact that a 

hair sampling technique only showed similarities between the hairs 

and could not show a match with certainty, ‘[t]he lack of certainty 

went to the weight to be assigned to the testimony of the expert, 

not its admissibility, and defense counsel did a creditable job of 

arguing to the jury that it should be assigned little weight.’ United 

States v. Brady, 595 F.2d 359, 363 (6th Cir.1979). And, in general, 

criticisms touching on whether the lab made mistakes in arriving at 

its results are for the jury.” United States v. Bonds, supra at 563. 

Further, other evidence was admitted at trial to corroborate the 

DNA identity evidence. A car dealer in Toledo testified at trial that 

in April 2000, Allen purchased a car for $600 and then sold it back 

in July 2000 for $200. Silvy Allen's daughter, Shanica Masadeh, 

testified at trial that Silvy and Allen suddenly moved to Florida in 

July 2000, and that Silvy gave custody of her to Silvy's 

grandmother because Silvy could not support her. The police 

obtained records from Florida that Allen and Silvy both worked for 

a temporary agency from August 8, 2000, to December 20, 2000. 

James Brenson was originally indicted for the murder of Herrell in 

Delaware County Common Pleas Case Number 00-CR-I-07-0195 

on July 28, 2000. That case was dismissed without prejudice on 

January 16, 2001, at the request of the prosecution for further 

investigation. Allen then returned to Ohio in late December, 2000. 

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“It is today universally conceded that the fact of an accused's 

flight, escape from custody, resistance to arrest, concealment, 

assumption of a false name, and related conduct, are admissible as 

evidence of consciousness of guilt, and thus of guilt itself. State v. 

Eaton (1969), 19 Ohio St.2d 145, 160, 48 O.O.2d 188, 196, 249 

N.E.2d 897, 906, vacated on other grounds (1972), 408 U.S. 935, 

92 S.Ct. 2857, 33 L.Ed.2d 750, quoting 2 Wigmore, Evidence (3 

Ed.) 111, Section 276.” State v. Williams (1997), 79 Ohio St.3d 1, 

11, 679 N.E.2d 646, 657. 

“There is a lengthy history behind the admission of conduct 

showing consciousness of guilt. McCormick, Handbook of the 

Law of Evidence s 271 at 655 (2d ed.1972). As such, flight 

evidence carries with it a strong presumption of admissibility. See, 

e.g., Allen v. United States, 164 U.S. 492, 499, 17 S.Ct. 154, 156, 

41 L.Ed. 528 (1896), where the court said: ‘Indeed, the law is 

entirely well settled that the flight of the accused is competent 

evidence against him as having a tendency to establish his guilt.’ 

Id. at 499, 17 S.Ct. at 156. The cases universally accept this 

doctrine. See, e.g., United States v. Greiser, 502 F.2d 1295, 1299 

(9th Cir.1974); United States v. Ballard, 423 F.2d 127, 133 (5th 

Cir.1970).” United States v. Martinez (10th Cir.1982), 681 F.2d 

1248, 1256-57. 

At the conclusion of the evidence in Allen's case, the trial court 

instructed the jury, “ “In this case there's evidence tending to 

indicate that the defendant, Allen, left the State of Ohio for a time. 

He moved to Florida and then returned. You're instructed that the 

evidence in and of itself, does not raise a presumption of guilt. But 

you may infer, but are not required to infer, a consciousness of 

guilt. The significance to be attached to this evidence are matters 

exclusively within the province of the jury.” (17T. at 2572). 

In the case at bar, the jury could certainly find that Allen's flight 

here seems strongly probative of his guilt. Further, we also note 

that the Supreme Court of Ohio has observed that specific intent to 

commit aggravated murder can be inferred from efforts to avoid 

detection after the murder's commission. See State v. Coleman

(1988), 37 Ohio St.3d 286, 525 N.E.2d 792, 797 (citing State v. 

Austin (1976), 52 Ohio App.2d 59, 368 N.E.2d 59, 65-66); see also 

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State v. Smith (June 15, 1994), Summit App. Nos. 16027, 16049, at 

*7 (same); State v. Fain (Aug. 22, 1990), Summit App. No. 14578 

at *1 (citing State v. Eaton (1969), 19 Ohio St.2d 145, 249 N.E.2d 

897, 906 (1969)) (noting, generally, that “[f]light from justice, and 

its analogous conduct, have always been indicative of a 

consciousness of guilt.”) (Citation omitted), vacated in part and 

remanded, 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 750 (1972). 

During an interview with the police in 2005 when he was the 

victim of a felonious assault, Allen informed the police that he was 

good friends with Brenson FN12. When the police showed Allen a 

photograph of Herrell, his demeanor noticeably changed. Allen 

looked at Herrell's picture, put it back and stated that he did not 

know him. Allen's demeanor was markedly different than when he 

looked at photographs of other individuals whom he did not 

recognize. The jury could conclude that this was additional 

evidence of conduct showing consciousness of guilt. 

FN12. This interview occurred before appellant was informed that 

his DNA was found at the scene of a murder investigation. 

Therefore, based on the quantity and strength of the additional 

evidence against Allen, as well as on his obvious efforts to conceal 

his crime, which is probative of his intent, we conclude that Allen 

has not satisfied his burden of demonstrating specific and actual 

prejudice because of the joint trial with Brenson. 

This case presents few complexities. The Court believes that the 

factual questions and legal concepts at issue are within the 

competence of an ordinary juror. Further, “juries are presumed to 

follow their instructions.” Zafiro v. United States, supra 506 U.S. 

at 540, 113 S.Ct. at ----. “The rule that juries are presumed to 

follow their instructions is a pragmatic one, rooted less in the 

absolute certitude that the presumption is true than in the belief 

that it represents a reasonable practical accommodation of the 

interests of the state and the defendant in the criminal justice 

process.” Richardson v. Marsh (1987), 481 U.S. 200, 211, 107 

S.Ct. 1702, 95 L.Ed.2d 176. See also, Blumenthal v. United States,

supra 332 U.S. at 559-560, 68 S.Ct. at 257-258; United States v. 

Lane (1986), 474 U.S. 438, 106 S.Ct. 725 at n. 13, 88 L.Ed.2d 814. 

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We decline to hold that a separate trial is necessary whenever any 

potentially incriminating evidence against one codefendant is 

introduced during a joint trial. See Richardson v. Marsh, supra, 

481 U.S. at 209-10, 107 S.Ct. 1702, 95 L.Ed.2d 176. In the 

absence of a showing to the contrary, the jury is presumed to have 

followed the instructions of the court. See Richardson v. Marsh,

supra, at 206, 481 U.S. 200, 107 S.Ct. 1702, 95 L.Ed.2d 176. 

As such, we conclude that the danger of prejudice due to the 

“spillover” of evidence, including 404(b) evidence, is insufficient 

to justify severance for Allen. 

Based on the facts disclosed by the record, we are convinced that 

there is no basis to support a finding that the jurors could not 

reasonably compartmentalize the evidence as to each of the 

defendants and properly apply it to the court's instructions in this 

jury trial. Further, Allen failed to establish that a specific trial right 

was compromised because of this evidence. He makes only a 

generalized argument with no factual, specific and actual prejudice 

argued or demonstrated by the record. 

Although the evidence may have been circumstantial, as 

previously noted, circumstantial evidence has the same probative 

value as direct evidence. State v. Jenks (1991), 61 Ohio St.3d 259, 

574 N.E.2d 492. 

Because appellant has not shown that his joint trial subjected him 

to any legally cognizable prejudice, we conclude that the trial court 

did not abuse its discretion in denying appellant's motions for relief 

from prejudicial joinder. Zafiro, supra 506 U.S. at 450, 113 S.Ct. at 

939. 

 Accordingly, appellant's. . . assignment of error is overruled. 

State v. Allen, 2010 WL 3784818, at *8-27. 

 Again, Petitioner has failed to establish that the decision of the state appellate court 

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contravened or unreasonably applied federal law as determined by the United States Supreme 

Court, or unreasonably applied the facts in light of the evidence that was presented. 28 U.S.C. § 

2254(d), (e). 

 In support of his claim, Petitioner refers to the opinion of the dissenting state appellate 

judge, who stated in pertinent part: 

In this case, I would find that Appellant has demonstrated 

prejudice sufficient to show that the jury would not be able to treat 

the evidence separately and distinctively relative to Appellant and 

Brenson. The only evidence linking Appellant to the crime scene 

was his DNA and his wife's DNA found on a shirt at the scene of 

the murder and the fact that he could not be excluded as a DNA 

contributor on the gloves found at the scene. Specifically, State's 

witnesses testified that Appellant had only a 1 in 30 chance of 

being a contributor to the DNA extracted from the glove. To put 

such a statistic into perspective, that means that out of the 105,000 

people that typically attend an Ohio State Buckeyes football game, 

3,500 would have the same likelihood of being a contributor to the 

DNA found on the glove left at the scene of the murder. While 

admittedly, this evidence in and of itself is circumstantial evidence 

of Appellant's presence at the scene of the murder, I cannot say 

that if Appellant and Brenson were tried separately, that the jury 

would have convicted Appellant of the murder based on this 

evidence alone. In fact, when reviewing the evidence, if Appellant 

and Brenson were tried separately, there is not any direct evidence 

that would place Appellant at the scene of the crime, but for his 

DNA on the one item of clothing and the possibility that he was a 

contributor to the DNA found on the gloves. 

The majority suggests that even if Appellant and Brenson were 

tried separately, the evidence against Brenson would have been 

admissible at Appellant's trial under a theory of complicity. I 

disagree. 

While certainly evidence to establish complicity is admissible at 

separate trials for codefendants, such evidence must still meet the 

threshold requirements of admissibility and relevance. Bruton v. 

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U.S. (1968), 391 U.S. 123, 131, 88 S.Ct. 1620, 20 L.Ed.2d 476. It 

is an important element of a fair trial that a jury consider only 

relevant and competent evidence bearing on the issue of guilt and 

innocence. 

Evidence that is probative of a defendant's guilt, but technically 

admissible against only one codefendant can present a risk of 

prejudice. Bruton v. U.S. (1968), 391 U.S. 123, 88 S.Ct. 1620, 20 

L.Ed.2d 476. The jury was permitted to hear evidence introduced 

in the joint trial that would have been impermissible and highly 

inflammatory against either codefendant if Appellant and Brenson 

were tried separately. The majority concedes, sub silencio, that 

much of this evidence was irrelevant and simply does not relate to 

the crimes with which Appellant has been charged; nor does this 

evidence inculpate Brenson or Appellant. 

First, the majority summarily dismisses as nonprejudicial and 

cumulative that Brenson used multiple aliases other than K.W. 

Yowpp. Evidence was admitted that Appellant used the additional 

aliases of M.A. Muhammad, Muhammad Mustafa FN16, Jonquail 

Kirkland, and Robin Shabazz. Admission of these aliases had 

nothing to do with either Brenson's or Appellant's motive, 

opportunity, intent, preparation, plan, knowledge, identity, or 

absence of mistake regarding the charges in the instant case. 

Rather, they were used to show Brenson's bad character.FN17

Evidence introduced of use of an alias where the alias is not an 

integral part of the commission of the crime is a violation of Evid. 

R. 404. See State v. Petty (May 21, 1987), 8th Dist. No. 

52069.FN18 

FN16. The evidence that Brenson used his son's name to check 

into the hospital is in no way relevant to the guilt or innocence of 

Appellant or Brenson, nor does it show consciousness of guilt as 

the majority now suggest. See majority opinion, ¶ 112. This was 

not argued as “consciousness of guilt” at trial. More conceivably, 

the prosecution introduced this evidence to taint Brenson's 

credibility and imply that he was attempting to not pay his hospital 

bill by giving faulty information to the hospital. 

FN17. References to Brenson's various aliases were discussed at 

the following pages in the transcript: 554, 1055, 1326, 1347, 1361, 

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1362, 1365, 1389, 1822, 1834, 1857-1858, 1971, 1972, 1977-1979, 

1980, 1981, 1984, 2033, 2062, 2212, 2361, 2364, 2366, 2370, 

2371, 2373, 2375, 2379, 2382, 2383, 2409, 2416, 2526, 2555; 

references were also found in the Grand Jury transcript sent back 

to the jury at pages 17 and 46-47. 

FN18. The majority states that Appellant was put on notice of the 

use of these aliases because in the indictment, the prosecution 

listed out various aliases of Brenson. An indictment serves only to 

put a defendant on notice of the crimes with which he is charged. 

Crim. R. 7(B). It does not serve as a discovery mechanism, nor 

does it serve to put a defendant on notice that the State would seek 

to improper[ly] introduce evidence of multiple aliases at trial. 

The majority summarily dismisses the prejudice from the 

admission of evidence that Brenson used multiple social security 

numbers. Again, admission of such evidence is not relevant to 

either the prosecution of Brenson or of Appellant. The admission 

of these social security numbers had nothing to do with Appellant 

or Brenson's motive, opportunity, intent, preparation, plan, 

knowledge, identity or absence of mistake with regard to the 

charges in the instant case.FN19 The majority fails to adequately 

explain how these aliases, social security numbers, and references 

to Appellant's illegitimate children were relevant to impeaching 

Brenson's credibility as it went to his use of aliases; rather, the 

majority sidesteps the issue that such character evidence was not 

only inadmissible, but also highly prejudicial against both 

defendants. 

FN19. References to various social security numbers used by 

Brenson can be found at the following pages in the transcript: 

1152, 1972, 1976-1977, 1977-1979, 2383, 2422, and 2526. 

The majority also rejects the prejudice created by the admission of 

evidence that Brenson was having an affair with one woman while 

married to another. Such evidence is highly inflammatory as it 

relates to both Brenson and Appellant and certainly has no bearing 

on Brenson's or Appellant's guilt. This is evidence admitted solely 

to tarnish the reputation of the accused. Moreover, evidence that 

Brenson had extramarital affairs and that he fathered multiple 

children with different women is both irrelevant and highly 

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inflammatory. FN20 Again, there is no good faith basis for the 

admission of such evidence against either codefendant. The 

prosecutor argued that such information was relevant as it went to 

“financial situation and motive.” FN21 The prosecution then 

proceeded to ask questions to Brenson's exwife, Robin Shabazz, 

such as “Do you know if they [Brenson's children with Lalitre] 

were born in the course of your marriage?” to which Shabazz 

responded, “yes.” The prosecution asked, “What about Minimah?” 

and Shabazz responded, “yes.” The prosecutor then asked Shabazz, 

regarding Brenson's children with other women, “I'm up to ten. Do 

you know how many children he had in total?” to which Shabazz 

replied, “eleven.” The prosecutor, not satisfied with having 

Shabazz merely state the answer repeated, “He has eleven 

children?” (Tr. 2380-2381). 

FN20. References during trial to Brenson's illegitimate children 

and his extramarital affairs can be found at the following pages in 

the transcript: 508, 1836-1837,1854, 1975, 1976-1977, 1977-1979, 

1991, 1995, 2023, 2075, 2086, 2216, 2231, 2249, 2348, 2370, 

2379, 2380, 2381, 2390, 2391, 2392; references were also found in 

the Grand Jury transcript sent back to the jury at page 17, lines 1-

13, page 20, and pages 23-24. 

FN21. There was never argument by the prosecution, either at trial, 

or in its brief before this Court, that such evidence was elicited 

during the cross-examination of Shabazz to impeach or show her 

bias, as the majority now suggests. See majority opinion, ¶¶ 112, 

129. 

The prosecutor proceeded to ask Shabazz about Brenson's 

whereabouts during the years of 1995 to 1999 and whether she was 

aware that he was living with a girlfriend, LaLitre, in Florida 

during that time. (Tr. 2390). Then the prosecutor immediately 

turned to asking Shabazz if she knew Holly Lewis. Shabazz 

responded “I think she used to work for a radio station doing 

advertising.” The prosecutor then responded, “Did your husband 

ever tell you that he and Holly had a long term relationship and he 

drove down to Columbus about five times a year over a five year 

period to see her?” (Tr. 2392). I cannot comprehend, not can the 

majority defend, the relevance of this testimony as it relates to the 

witness's bias in favor of Brenson. 

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Though the prosecutor claimed that this information was essential 

to establish Brenson's motive (Tr. 2379), during their closing 

arguments, they did not one time mention that such a motive 

existed. The majority has reconstructed the State's argument to one 

of bias, which still fails to adequately defend the admission of such 

testimony. In fact, the prosecution made clear to ask the court to 

instruct the jury that “they may find the defendants guilty without 

knowing their motive, if they find every element proven beyond a 

reasonable doubt and the state went between that purpose, which I 

think was somewhat confusing during Mr. McVay's closing.” (Tr. 

2557). The prosecution also stated, during rebuttal closing, that “I 

want to be clear about this issue of motive also because Mr. 

McVay, I think, muddied the waters on that. Motive, ladies and 

gentlemen, in this case and I think it's fairly clear, is robbery. 

Whoever did this wanted to steal drugs or money or both and guns 

and fireworks.” (Tr. 2516). Attorney McVay's comment that the 

prosecutor was referring to was that after listening to nine days of 

testimony, “only today was it suggested that there was any reason 

whatsoever why James Brenson would kill Norman Duck Herrell.” 

(Tr. 2467), in reference to the cross examination of Robin Shabazz, 

who testified that day. 

All in all, the references to Brenson's multiple aliases, use of 

different social security numbers, and his illegitimate children and 

extramarital affairs totaled sixty-nine. 

Additional evidence that was questionable in its admissibility in a 

joint trial and which would not have been admissible in a trial 

solely on Appellant's guilt included the evidence that Brenson met 

Norman Herrell in prison in 1980.FN22 While such testimony 

would have been relevant to the link between Brenson and Herrell, 

such evidence would not have been admissible if Appellant was to 

have been tried separately. Moreover, the introduction of evidence 

that Brenson's vehicles were searched in October, 1999, and that 

officers found a shotgun, shotgun shells, walkie talkies, a knife, 

rubber gloves, duct tape, nylon rope, a ski mask, zip ties, and a 

“Scream” mask in the vehicles would never have been admissible 

in a trial against Appellant had he been tried separately. While this 

evidence was struck from the record after it had been introduced, I 

find that the majority would be hard pressed to find any case law 

supporting the admission of such evidence in a trial against a 

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separately tried codefendant. The search of Brenson's vehicle 

almost a year preceding the murder of Herrell was marginally 

relevant to Brenson's case; relating this evidence to Appellant 

would require a stacking of inferences upon inferences upon 

inferences. 

FN22. The majority states, in fn. 7 of its opinion, that there was no 

objection to this testimony at trial. This evidence was objected to 

prior to trial and was addressed in Appellant's motion to sever. It 

would be overkill to require a defendant to object to every single 

statement throughout the course of this trial that would not have 

been admissible in separate trials. 

Additionally, statements by Brenson made outside of trial would 

not have been admissible in a trial against Appellant. Evid. R. 

801(D)(2)(e) provides for the admission of statements of a coconspirator only if the statements were made during the course of 

and in furtherance of the conspiracy upon independent proof of the 

conspiracy. 

Specifically, evidence that Brenson testified on two separate 

occasions in front of the Delaware County Grand Jury and made 

multiple inconsistent statements regarding the events of June 11, 

2000, would not have been admissible in a separate trial. 

Moreover, Brenson's admission to being in Herrell's residence on 

June 11, 2000, to purchase illegal fireworks would not have been 

admissible in a severed trial against Allen; neither would Brenson's 

statement to police officers that Herrell had 30 pounds of 

marijuana in his residence on June 11, 2000. Brenson's recounting 

of his run in with a state trooper the evening of June 11, 2000, 

wherein he became enraged that the trooper approached him, and 

wherein Brenson stated during one of his statements to law 

enforcement that he used zip ties, similar to the type which Herrell 

was bound with, to secure his license plate onto his truck, would 

not have been admissible in a trial solely against Appellant under 

these evidentiary rules. The majority attempts to minimize the 

prejudice of this testimony by claiming that it is relevant to show 

that Brenson became enraged at potentially being racially profiled. 

The majority fails, however, to explain how such testimony is 

probative of the guilt of Appellant. Brenson's reaction is not related 

to any fact concerning the crimes of this case. The irrelevance of 

this interaction between Brenson and the trooper is precisely why 

the evidence would not have been admissible in a trial against 

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Appellant .FN23 

FN23. That is not to say that this evidence would be inadmissible 

against Brenson in a separate trial. 

Additionally, Brenson's statement that he knew where Herrell hid 

his money in his house, his statement that he knew about Herrell's 

latest shipment of fireworks and that he had been purchasing 

fireworks from Herrell for the past five to six years, and his 

statement that he had to borrow money to purchase the fireworks 

in 2000 were also irrelevant in the case against Appellant and 

would not have been admissible in a trial against Appellant had he 

been tried separately. 

The inconsistencies in Brenson's statements regarding what 

happened when he was pulled over by the trooper on June 11, 

2000, would not have been admissible in a trial against Appellant; 

moreover, Brenson's contradictory statements about it raining the 

evening of June 11, 2000, would have been inadmissible as well. 

Brenson's statement that he observed a white van pull up at 

Herrell's as he was driving away would not have been permitted in 

a separate trial against Appellant. Finally, testimony from 

Brenson's previous defense attorney, who was called to testify as to 

whether he told Brenson that Brenson's first indictment in 2000 

would be dismissed against him, would certainly not have been 

admissible in a separate trial against Appellant. 

In cases where the admission of such evidence has been deemed to 

be harmless, there has consistently been “overwhelming evidence 

of the defendant's guilt.” Such is not the case regarding the 

evidence against Appellant. Had Appellant and Brenson been tried 

separately, the evidence linking Appellant to Herrell's murder 

essentially would have been that he knew James Brenson from 

Toledo, his and his wife's DNA was found in a shirt at Herrell's 

house, he had a 1 in 30 possibility of contributing to the DNA 

found within the gloves at Herrell's house, and that shortly after 

June 11, 2000, he left Ohio and moved to Florida with his wife, 

and he moved back to Ohio in late December, 2000. 

Thus, the consolidation of Appellant's trial with Brenson's 

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substantially prejudiced Appellant's ability to defend himself. This 

defect substantially affected his right to a fair trial in that evidence 

of Brenson's bad character pervaded this joint trial, rendering it 

virtually impossible for the jury to convict Appellant solely on the 

evidence presented against him. In other words, the evidence 

allowed the jury to infer that Appellant, through his association 

with Brenson, participated in all of the events with Brenson 

leading up to Herrell's murder on June 11, 2000. See, e.g. State v. 

Dixon, 3rd Dist. No. 8-02-44, 2003-Ohio-2547, (finding plain error 

to refuse to sever trials of co-defendant spouses where evidence 

introduced against one spouse allowed jury to infer that both 

defendants had knowledge of crimes committed). 

Moreover, we would note that at no time during the introduction of 

this evidence in the middle of the trial did the trial court instruct 

the jury on the limited use of this 404 evidence. It was only during 

the final jury instructions that the jury was instructed what to do 

with evidence admitted under Evid. R. 404. If, as a reviewing 

court, we are always to rely on the fact that a trial court gave a 

limiting instruction at some time during the trial to cure any 

potential error, then a court would never be able to reverse on the 

basis of evidence admitted under 404. 

As did the court in Breinig, supra, FN24 I believe that this is an 

exceptional case. The unique facts present one of those very few 

instances where a conviction is reversed based on a denial of 

severance under Crim. R. 14. The evidence admitted in the joint 

trial was highly prejudicial and provided the State with a windfall 

that it would not have received had the two defendants been tried 

separately. 

FN24. The majority questions my reliance on Breinig, claiming 

that neither Brenson nor Allen introduced evidence “of the other's 

‘bad character,’ or sought to prove that the other controlled or 

dominated him to such an extent that his will was overborne. In 

fact, that is true; however, the prosecution did so in this case by 

repeatedly seeking to prove the co-defendants' bad character. 

While I find that Allen should have been granted a separate trial, I 

am not critical of the trial court's pretrial decision. The court 

engaged in extensive fact-finding and carefully evaluated the 

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proposed evidence in light of controlling case law and legal 

standards. However, a trial court has the “continuing duty at all 

stages of the trial to grant a severance if prejudice does appear”. 

State v. Bunch, 7th Dist. No. 02CA 196, 2005-Ohio-3309, ¶ 77, 

citing Schaffer v. U.S. (1960), 362 U.S. 511, 516, 80 S.Ct. 945, 4 

L.Ed.2d 921. 

On appeal, this Court has the benefit of reviewing the record and 

evaluating the trial after all the testimony has been presented and 

the jury has returned its verdict. The trial court could not have 

foreseen much of the testimony that was ultimately introduced. I 

would reaffirm today that the decision to deny severance rests 

within the sound discretion of the trial judge, which a reviewing 

court does not second-guess. Breinig, supra, at 853, citing United 

States v. Lasanta, 978 F.2d 1300, 1306 (2d Cir.1992). However, I 

would conclude that the facts of this case, as they developed after 

the trial court's pretrial ruling, severely and unfairly prejudiced 

Allen and severance was warranted. 

The jury's consideration of categorically inadmissible evidence 

was unfairly prejudicial. It provided the State with a windfall that 

the rules of evidence and elemental notions of fairness would 

otherwise not allow, and that Evid. R. 8(B) does not envision. See 

Breinig, supra, at 853. 

The majority repeatedly states that Appellant has failed to show 

“compelling, specific, and actual prejudice” with respect to his 

severance argument. In so doing, the majority cites to the Sixth 

Circuit cases of United State v. Saadey (6th Cir. 1993), 393 F.3d 

669 and United States v. Driver (6th Cir. 2008) 535 F.3d 424. Both 

of these cases deal with federal RICO charges and the severance of 

charges, not the severance of co-defendants. The majority fails to 

note that Ohio has not adopted this standard. See e.g., paragraph 

203, infra. 

Moreover, federal courts have held that state law severance claims 

are governed by State law, not by federal law. U .S. v. Hutchinson

(6th Cir.2002), 303 F.3d 720. Phillips v. Million (6th Cir.2004), 

374 F.3d 395), (wherein federal court pointed out that they must 

look to Kentucky law to determine whether the motion to grant 

severance should be granted. In addition, they stated that Zafiro

involved the interpretation of Federal Rules of Criminal Procedure 

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8, 14, and 18, not the United States Constitution, and thus Zafiro

had no precedential weight in reviewing state court proceedings on 

due process grounds.) Million, at 393; see also Perrou v. Jones

(E.D.Mich. 2009), No. 06-14941, 2009 WL 2392971. 

The standard, as cited by the majority, is simply not the standard 

for establishing severance in Ohio courts. That standard, as set 

forth in State v. Torres (1981), 66 Ohio St.2d 340, 343, 421 N.E.2d 

1288, is as follows. “A defendant claiming error in the trial court's 

refusal to allow separate trials of multiple charges has the burden 

of affirmatively showing that his rights were prejudiced. State v. 

Roberts (1980), 62 Ohio St.2d 170, 175, 405, 405 N.E.2d 247, 

N.E.2d 247; * * *.; see also State v. Hand, 107 Ohio St.3d 378, 

2006-Ohio-18, 840 N.E.2d 151; and State v. McKnight, 107 Ohio 

St.3d 101, 2005-Ohio-6046, 837 N.E.2d 315. He must demonstrate 

that the trial court abused its discretion in refusing to separate the 

charges for trial. Opper v. United States (1954), 348 U.S. 84, 95, 

75 S.Ct. 158, 165, 99 L.Ed. 101; Wright, Federal Practice and 

Procedure 468, Section 227. More specifically, he has the burden 

of furnishing the trial court with sufficient information so that it 

can weigh the considerations favoring joinder against the 

defendant's right to a fair trial.” Other courts have held that “error 

is prejudicial if there is a reasonable probability that the verdict 

might have been more favorable to the defendant if the error had 

not been made.” Rolle v. State (Wyo. 2010), 2010 WY 100, 236 

P.3d 259, citing Vigil v. State (Wyo. 2010), 2010 WY 15, 224 P.3d 

31. 

I find it hard to fathom if Appellant has not shown prejudice in the 

instant case, what it would take in order for any defendant to ever 

show prejudice. In the trial below, the jury heard over a week's 

worth of testimony which amounted to approximately 2,200 pages 

of transcript on review, received approximately 100 exhibits to 

review, and was charged with determining the guilt of Appellant 

and his codefendant on multiple complex charges of aggravated 

murder, murder, kidnapping, aggravated robbery and burglary. The 

jury deliberated for less than a day, never asked a single question 

to the court during deliberation and unequivocally convicted both 

Appellant and his codefendant of all charges carrying life 

sentences. No greater prejudice could be shown in this case. 

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I would therefore find that Appellant has met his onerous burden 

of showing that the prejudice that he suffered was compelling and 

violative of his Due Process rights and would reverse this case on 

the issue of severance. 

State v. Allen, 2010 WL 3784818, at *36-44. 

 A trial court’s refusal to grant a request for a severance of trials generally constitutes a 

matter of state law. See Hutchison v. Bell, 303 F.3d 720, 731 (6th Cir. 2002); Brinkley v. Houk, 

– F.Supp.2d –, 2011 WL 6029941, at *23 (N.D. Ohio Dec. 5, 2011). Federal habeas corpus 

relief may be granted in connection with the claim only if Petitioner establishes that he was so 

prejudiced by error that he was denied a fundamentally fair trial in contravention of his right to 

due process. Cooper v. Sowders, 837 F.2d 284, 286 (6th Cir. 1988); Sutton v. Bell, 683 

F.Supp.2d 640 (E.D. Tenn. 2010)(citing Davis v. Coyle, 475 F.3d 761, 777 (6th Cir. 2007)). In 

this regard, Petitioner must show more than potential prejudice; he must establish actual 

prejudice by reason of the joint trial, see Dowell v. Eckman, 2006 WL 228933, at *2 (W.D. Ky. 

Jan. 25, 2006) (citing Opper v. United States, 348 U.S. 84 (1954)), as alleged errors in the 

management of state criminal trials do not deny a defendant due process unless they are “so 

harmful to the cause of truth that. . . they make the defendant’s conviction fundamentally unfair.” 

Walters v. Sheets, 2010 WL 7697542, at *13 (quoting Lewis v. Hutch, 964 F.2d 670, 676 (7th 

Cir. 1992)). “Such prejudice may arise when there is a great disparity in the amount of evidence 

supporting the charges or when the jury is likely to confuse the evidence or infer a criminal 

disposition on the part of the defendant.” Payne v. Bobby, No. 2:05-CV-050, 2006 WL 508784, 

at *9 (S.D. Ohio Feb. 27, 2006)(citing Webber v. Scott, 390 F.3d 1169, 1177-78 (10th Cir. 

2004)). 

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 In Zafiro v. United States, 506 U.S. 534, 538 (1993), which addressed the issue in terms 

of the Federal Rules of Criminal Procedure and which was referred to by the state appellate 

court, the United States Supreme Court held that relief is not warranted on a claim of improper 

joinder merely because the defendants present mutually antagonistic defenses. See also Stanford 

v. Parker, 266 F.3d 442, 458 (6th Cir. 2001)(same). The United States Court of Appeals for the 

Sixth Circuit has discussed the issue as it relates to Rule 14 of the Federal Rules of Criminal 

Procedure: 

For the sake of promoting efficiency and avoiding the potential for 

inconsistent verdicts, joint trials of defendants who are indicted 

together are actually encouraged rather than discouraged. Zafiro v. 

United States, 506 U.S. 534, 537 (1993); see also Fed.R.Crim.P. 

8(b)(stating that “[t]wo or more defendants may be charged in the 

same indictment. . . if they are alleged to have participated in the 

same act or transaction or in the same series of acts or transactions 

constituting an offense or offenses”). This is especially true when 

two defendants are accused of participating in a conspiracy or joint 

scheme. United States v. Weiner, 988 F.2d 629, 634 (6th Cir. 

1992). 

. . . Severance is required “only if there is a serious risk that a joint 

trial would compromise a specific trial right of one of the 

defendants, or prevent the jury from making a reliable judgment 

about guilt or innocence.” Walls, 293 F.3d at 966 (quoting Zafiro, 

506 U.S. at 539). A joint trial of co-defendants who present 

mutually antagonistic defenses is not prejudicial per se. Zafiro, 

506 U.S. at 538. Moreover, a trial court’s limiting instructions 

may “cure” such prejudice. Id. at 539. 

United States v. Cope, 3312 F.3d 757, 780 (6th Cir. 2002). 

 Here, the record fails to reflect that Petitioner and his co-defendant presented mutually 

antagonistic defenses or that, because of the joint trial, Petitioner was unable to cross-examine 

witnesses against him. Although Petitioner prejudicial evidence introduced against Benson, the 

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state appellate court concluded such evidence was admissible under Ohio law, and the trial court 

properly instructed the jury regarding the jury’s consideration of such evidence in its 

consideration of the charges against Petitioner. The record simply fails to reflect that the jury 

disregarded these instructions, or that the issues were so complex that the jury was unable to 

render a reliable verdict. Further, as noted by the state appellate court, the prosecution presented 

probative evidence of Petitioner’s guilt, including DNA evidence that tended to support the 

prosecution’s contention that Petitioner was at the scene of the crime. In short, this Court is not 

persuaded that Petitioner has met his burden of establishing that the state appellate court’s 

decision denying this claim was unreasonable so as to warrant federal habeas corpus relief. 

 Claim two is without merit. 

 CLAIM THREE 

 In claim three, Petitioner asserts that he was denied a fair trial because the prosecutor 

called his wife, Silvy Allen, to testify as a prosecution witness. After the jury had seen her called 

to the witness stand, the trial judge – at the request of the prosecutor – excused the jury and 

inquired whether the witness intended to invoke the marital privilege. She did and was then 

excused. 

 Respondent contends that this claim presents an issue regarding a state evidentiary ruling 

not cognizable on federal habeas corpus review. Return of Writ, at 12-13. This Court does not 

agree. Petitioner argued on direct appeal that the prosecutor’s actions in this regard denied 

Petitioner his right to confront witnesses and a fair trial. See Exhibit 18 to Return of Writ. 

Additionally, the state appellate court, in rejecting this claim, referred to decisions of the United 

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States Supreme Court. This Court will therefore consider this issue by reference to federal law. 

 The state appellate court rejected Petitioner’s claim, reasoning as follows: 

[A]ppellant. . . argues that the trial court abused its discretion in 

failing to grant a mistrial after the prosecutor called Silvy Allen to 

the stand in its case in chief. We disagree. 

Specifically, the facts giving rise to the motion for mistrial were as 

follows: The State had failed to successfully serve Silvy Allen with 

a subpoena prior to trial. After the trial had commenced, the 

prosecutor served Mrs. Allen with a subpoena when she 

accompanied her daughter to the courthouse to testify. During trial, 

in front of the jury, the prosecutor proceeded to call Mrs. Allen to 

the stand to testify. After she took the stand, the prosecutor asked 

the court if counsel could approach. At a sidebar conference, the 

following exchange was held: 

“[Prosecutor]: Your Honor, we are approaching prophylacticlly 

[sic], a thought had occurred that the witness might say at some 

point that she wished not to testify. Your honor, perhaps we should 

ask that question when the jury is not present. There is a privilege 

in this case although they weren't married until 2005, well after the 

murder, but anything we're asking her about was before they were 

married, not during covatures. [sic]” 

 “The Court: Well, I think we should probably address it before. 

“[Prosecutor]: There's a competency issue that I don't want to 

come up in front of the jury. 

“The Court: Okay. I'll excuse the jury and we can address it.* * * ” 

The following then occurred after the jury was dismissed from the 

courtroom and the witness was sworn: 

 “The Court: Be seated, folks. 

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 “The Court: Do you want to inquire? 

“ “[Prosecutor]: Your honor, my understanding of the case law in 

this area, I think it would be appropriate for the court to ask 

questions of the witness regarding Evidence Rule 601. 

 “The Court: Your name is Silvy Allen; is that right? 

 “A: Silvy Sparks Allen. 

 “Q: Silvy Sparks Allen? 

 “A: Right. 

 “ * * * 

“Q: And you're currently married to Mr. William T. Allen, who is 

one of the defendants in this case? 

 “A: That's correct. 

 “Q: And when were you married? 

“A: I'm sorry. Under my stress I'm not going to be totally accurate. 

Maybe three years ago. 

 “Q: This is 2008. So 2005 sometime? 

 “A: Yes. 

“Q: And it's my understanding that you're electing to testify today; 

is that right? 

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“A: No. And I'm also going to plead the fifth because I wish not to 

testify against my husband. This subpoena was just given to me 

momentarily ago. I accompanied my daughter who was 

subpoenaed. 

 

 “Q: Okay. So you refuse to testify? 

 “A: That's correct. 

“The Court: All right, what's your position on this, Mr. 

[Prosecutor]? 

““[Prosecutor]: Your Honor, the strictures of Evidence Rule 601, I 

think, are pretty clear. I don't know that there's much leeway in 

this. I guess the only argument I would make -- having reviewed 

the case law, there's really no good faith argument I can make 

contrary to that, your honor. The competence issue applies at the 

time the witness is testifying, which is now and we have no reason 

to believe they're not married. 

“The Court: All right. Any statements for the regard (sic) on behalf 

of Mr. Allen? 

 “Mr. Heald: No, your Honor. 

 “The Court: All right, ma‘am. You can step down. 

 * * * 

“Mr. Meyers: * * * We would, in retrospect, lodge an objection to 

what just transpired here, whereby if the government was aware, as 

obviously they were, that this witness was going to exercise her 

right not to testify, they should have brought that to the court's 

attention before parading her onto the stand. I'm sure I wasn't the 

only one in the room who watched everybody carefully watching 

her and now, obviously, they've implied, improperly that for some 

reason, I suppose not of their own making, they've sent the signal 

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by just her physical presence that she's refused to testify. It's 

inappropriate and we object and move for a mistrial. It's no 

different than calling a witness you know who is going to take the 

Fifth and playing that hand in front of the jury. 

“Mr. Heald: Your Honor, we would join in the objection [and] that 

motion. 

“The Court: Does the State want to respond to the objection and 

motion? 

“ [Prosecutor]: Your Honor, that's the exact reason I approached 

the bench before we asked the witness any questions, to address 

that issue because it popped up. We only served her with her 

subpoena about five minutes ago. 

“Mr Meyers: Clearly, the State must have heard something out in 

that hallway that caused them to approach the bench. Why they 

waited until after they had the little parade or charade is 

inappropriate. 

 “The Court: I was kind of curious about that myself. 

“ [Prosecutor]: Your Honor, Mr. Mooney was in the hallway and 

had a conversation with the witness prior to that, too, and it wasn't 

raised by anyone else in the room except myself before the 

witnesses testified. 

“Mr. Meyers: We're certainly not privy to the conversations the 

government or its counsel or it's [sic] chief law enforcement 

agency has had with her. * * * We have known generally that 

they've been trying to serve Silvy Allen up in the Toledo area. If 

they've got a shot to protrusely [sic] drop an immediate subpoena 

on her and were apparently one or all total, all three together, state 

representative told by her, I'm not testifying, she most certainly has 

been paraded in front of this jury. [sic] 

“ “[Prosecutor]: She didn't say that, your honor. She told us she 

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was refusing to accept a subpoena. Until we found her person and 

got her served personally with the subpoena, we couldn't force it. 

But we found her, we served her with a subpoena and she was in 

court. I had no conversations with her, Miss O'Brien had no 

conversations with her, Sergeant Leatherman had no conversations 

with her today. 

“Now, the look on her face lead [sic] me to believe that we should 

approach the bench before her answering any questions. I said 

something to her about our fair city, she said, “I hate your fair 

city,” or something to that effect. She did not tell me she did not 

want to testify.” 

 The court, in ruling on the motion for mistrial, stated as follows: 

“We have motions for mistrial pending on behalf of both 

defendants. I think it's the fourth motion for mistrial in this case, 

feeling that the substantial rights of their clients have been affected 

by the parading of Miss Allen in here in front of the jury. And then 

Miss Allen's refusal to testify. Certainly, I agree with counsel that a 

simple question by Mr. Rohrer, do you wish to testify or not, 

would have handled it and not brought her in, nor probably the 

calling of her name in the courtroom, that he was calling her as a 

witness. And I'm not sure that's akin to putting someone on the 

stand to plead the Fifth when the prosecutor knows that the witness 

was going to do that, although it comes pretty close. In this case, 

the jury was excused and outside the presence of the jury the 

witness said that she didn't want to testify. 

“You know, frankly the court should have anticipated that except I 

found myself in the same position, wondering if she was coming in 

the courtroom, then she must be willing to testify. But it's 

something that is required to do if the spouse is going to testify, to 

bring them in in advance and say, do you wish to testify; you have 

a right not to testify. Has substantial prejudice been shown? No, 

nor has counsel really stated what the substantial prejudice this 

would be except what inference the jury may or may not take from 

the fact that she was called in in front of them and then she did not 

testify. The court is going to give an instruction to the jury and the 

instruction would either be one that they are not to infer anything 

from the fact that Mr. Allen's wife refused to testify, or did not 

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testify because our law says a spouse does not have to testify in a 

trial of her husband, if she so chooses, or the instruction would be 

that they are not to infer anything from the fact the witness was 

called to the stand and did not testify. So I can advise them of the 

law that allows her not to testify, or I can just tell them they're not 

to infer anything. With that instruction, first of all, I don't think 

there's any substantial prejudice here to the defendants, but 

certainly the jury may infer something that they probably shouldn't 

and what the consequences of that is, no one knows.” [13T. at 

1789-1795; 1812-13]. 

At the outset, we note the fact that a witness is under no obligation 

to speak with the attorney for the state or the attorney for the 

defense prior to trial FN13. Additionally, had the state called 

appellant's wife in an effort to create prejudice to appellant's case, 

the prosecutor could have begun questioning her, forcing her to 

recite her refusal to testify in front of the jury, or placing damaging 

evidence under the guise of questioning in front of the jury before 

asking the trial court to intervene. 

FN13. “(I)n modern criminal trials, defendants (as well as 

prosecutors) are rarely able to select their witnesses: they must take 

them where they find them.” Chambers v. Mississippi (1973), 410 

U.S. 284, 296, 93 S.Ct. 1038, 1046, 35 L.Ed.2d 297. 

Of relevance to this assignment of error, the Ohio Supreme Court 

has noted that, 

“A witness, even though he has previously indicated that he will 

refuse to testify on the ground that to do so would incriminate him, 

may be called as a witness. 

“As stated in State v. Snyder (1953), 244 Iowa, 1244, 1248, 59 

N.W.2d, 223: 

“ ‘The general rule is, as stated in 58 Am.Jur. Witnesses, Section 

53, that although a witness cannot be compelled to give 

incriminating testimony, he must if properly summoned appear and 

be sworn. His privilege is available only as a witness and cannot be 

extended so as to excuse him from appearing. If the witness 

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himself cannot escape being sworn by claiming in advance that he 

will refuse to testify, certainly the defendant, against whom such 

witness is offered, cannot claim greater rights.’ See, also, 8 

Wigmore on Evidence, 402, Section 2268. 

“The possibility that a witness may claim the privilege does not 

prohibit the prosecutor from asking questions. Commonwealth v. 

Granito, [ (1950), 326 Mass. 494]”. Columbus v. Cooper (1990), 

49 Ohio St.3d 42, 44-45, 550 N.E.2d 937, quoting State v. Dinsio

(1964), 176 Ohio St. 460, 466, 200 N.E.2d 467. [Internal quotation 

marks omitted]. See also, In re M.E.G., Franklin App. Nos. 06AP1256, 06AP-1257, 06AP-1258, 06AP-1259, 06AP-1263, 06AP1264, 06AP-1265, 2007-Ohio-4308 at ¶ 44. The Dinsio court 

stated that, in a criminal case where a witness properly invokes his 

right against self-incrimination under the Fifth Amendment, it is 

improper for the court to prohibit such a witness from being called 

to the stand, regardless of whether counsel knows that the witness 

will refuse to testify. 

We find that appellant did not suffer any constitutional injury 

because of the procedure employed in this case. In order to 

establish a constitutional violation, appellant must show that the 

prosecution used the witness's assertion of the privilege to create 

an inference that established a critical element of the state's case. 

See Douglas v. Alabama (1965), 380 U.S. 415, 419, 85 S.Ct. 1074, 

13 L.Ed.2d 934. The seminal case concerning the refusal of a 

witness to testify during a criminal trial is Namet v. United States

(1963), 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278. In Namet,

the United States Supreme Court outlined two theories that would 

support a finding of reversible error when a witness asserts his 

Fifth Amendment privilege. First, the Court stated that error might 

be based upon prosecutorial misconduct when the government 

“makes a conscious and flagrant attempt to build its case out of 

inferences arising from the use of the testimonial privilege.” Id.

Second, error may arise when, “in the circumstances of a given 

case, inferences from a witness' refusal to answer added critical 

weight to the prosecution's case in a form not subject to crossexamination, and thus unfairly prejudiced the defendant.” Id. 

In applying the two-pronged Namet test, courts have considered a 

number of factors including: the prosecutor's intent in calling the 

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witness, the number of questions asked that elicit an assertion of 

the Fifth Amendment privilege, whether defense counsel objects to 

the prosecutor's conduct, whether the prosecutor attempts to draw 

adverse inferences in closing argument from the witness' refusal to 

testify, whether the witness is closely related to the accused, 

whether the allegedly adverse inferences drawn from an assertion 

of the testimonial privilege relate to central issues in the case or 

collateral matters, and whether the inference is the only evidence 

bearing upon the issue or is cumulative of other evidence. See 

Namet, supra; Zeigler v. Callahan (1981), 659 F.2d 254; Douglas 

v. Alabama (1964), 380 U.S. 415, 85 S.Ct. 1074, 13 L.Ed.2d 934; 

State v. Carballo (Oct. 16, 1989), Madison App. No. CA88-02-

006. 

The Court in Namet placed no duty on the prosecutor to determine 

in advance whether the witness would claim a testimonial 

privilege, 

“In the first place, the record does not support any inference of 

prosecutorial misconduct. It is true, of course, that [defense 

counsel] announced that the [witnesses] would invoke their 

testimonial privilege if questioned. But certainly the prosecutor 

need not accept at face value every asserted claim of privilege, no 

matter how frivolous.” Namet, supra at 179, 188, 373 U.S. 179, 83 

S.Ct. 1151, 1155, 10 L.Ed.2d 278. 

Here, the record is clear that the state did not improperly pose 

repeated questions seeking to place before the jury, under the guise 

of questioning, evidence that was prejudicial to the accused. 

Rather, the prosecutor upon realizing a problem might occur took 

the most prudent course of action and requested a side bar out of 

the hearing of the jury. Under these circumstances, there was no 

allusion to Ms. Allen's knowledge of the events or of appellant's 

activities on the evening in question. Ms. Allen's appearance on the 

witness stand was very brief and her refusal to testify was 

addressed to the trial court. In the instant case, any inference that 

the jury may have made from Ms. Allen's refusal to testify not only 

would have been insufficient to establish a critical element of the 

state's case, but also would have been merely cumulative of the 

adequate evidence the state adduced to establish its case. 

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Further, the court instructed the jury, “When you left, we had a 

witness on the stand. That witness was a Mrs. Allen, the spouse of 

Defendant Allen, and under the laws of our state, we have rules, 

evidence rules, and there's [sic] rules of competency. For example, 

a person of unsound mind can't testify; a child under the age of ten 

can't testify. Likewise, a spouse cannot testify. So once I 

determined she was the spouse, she was not permitted to testify.” 

[13T. at 1812-1813]. Appellant did not object to the trial court's 

curative instruction at the time it was given, nor does he challenge 

the correctness or clarity of the curative instruction on appeal FN14. 

FN14. Accordingly, appellant has waived all but plain error. 

Puckett v. United States (2009), --- U.S. ----, ----, 129 S.Ct. 1423, 

1428, 173 L.Ed.2d 266. 

In the case at bar, we believe the trial court's instruction correctly 

conveyed to the jury that Ms. Allen had a right not to testify and 

her decision not to testify must not be considered by the jury for 

any purpose. That is all the jury really needed to know. As the jury 

was not being asked to decide the issue of whether the witness had 

a right to claim a spousal privilege, or whether the spousal 

privilege applied under the circumstances, the trial judge was not 

required to give the jury an instruction on spousal privilege. 

Therefore, his failure to do so cannot be error. The instruction 

given by the trial court benefitted Allen because the jury was not 

informed that, for example, Ms. Allen had a Fifth Amendment 

right to refuse to testify on the grounds that she may incriminate 

herself. Additionally, the jury was informed that it was not Ms. 

Allen's decision not to testify; rather she was prevented from 

testifying by law. We fail to see how the trial court's instruction 

affected his substantial rights and, in addition how the error 

seriously affect[ed] the fairness, integrity or public reputation of 

[the] judicial proceedings. United States v. Olano (1993), 507 U.S. 

at 725,734, 113 S.Ct. 1770; State v. Perry (2004), 101 Ohio St.3d 

118, 120 802 N.E.2d 643, 646. 

As previously noted, “[a] presumption always exists that the jury 

has followed the instructions given to it by the trial court,” Pang v. 

Minch (1990), 53 Ohio St.3d 186, 187, 559 N.E.2d 1313, at 

paragraph four of the syllabus, rehearing denied, 54 Ohio St.3d 

716, 562 N.E.2d 163, approving and following State v. Fox 

(1938), 133 Ohio St. 154, 12 N.E.2d 413; Browning v. State 

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(1929), 120 Ohio St. 62, 165 N.E. 566. The appellant has not cited 

any evidence in the record that the jury failed to follow the trial 

court's instruction. 

 Accordingly, we find no error, harmless or otherwise, occurred. 

State v. Allen, 2010 WL 3784818, at *27-32. 

 In Namet v. United States, 373 U.S. 179 (1963), referred to by the state appellate court, 

the United States Supreme Court rejected the suggestion that error invariably occurs whenever 

the prosecution calls a witness who claims a privilege and refuses to answer questions. 

However, the Supreme Court also noted that error may occur under the concept of prosecutorial 

misconduct where “the Government makes a conscious and flagrant attempt to build its case out 

of inferences arising from use of the testimonial privilege,” Id. at 187, or when “inferences 

from a witness' refusal to answer added critical weight to the prosecution's case in a form not 

subject to cross-examination, and thus unfairly prejudiced the defendant.” Id. (citations omitted). 

Such were not the circumstances here. 

 In Douglas v. Alabama, 380 U.S. 415, 416 (1965), the Supreme Court reversed the 

defendant’s convictions where the prosecutor read into evidence, under the guise of cross 

examination, an entire signed confession of a witness who asserted the Fifth Amendment right 

not to testify. The Supreme Court concluded that the prosecutor’s actions had denied the 

defendant his constitutional right to cross-examine witnesses against him. Id. at 419. In 

Frazier v. Cupp, 394 U.S. 73, 7331 (1969), however, the Supreme Court rejected a claim under 

the Confrontation Clause based on the prosecutor’s reference to testimony, during opening 

statements, of a witness who later refused to testify after asserting his rights under the Fifth 

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Amendment. The Supreme noted that the prosecutor’s reference to the expected testimony of the 

non-testifying witness was brief and concluded that any potential prejudice had been cured by 

the trial court’s instruction to the jury. 

 The United States Court of Appeals for the Sixth Circuit, in Thomas v. Garraghty, 18 

Fed.Appx. 301, 308( unpublished), 2001 WL 1006254 (6th Cir. Aug. 23, 2001), has interpreted 

these Supreme Court cases to stand for the proposition that, “under certain circumstances, a 

witness's invocation of the Fifth Amendment privilege before the jury creates the unfavorable 

inference that the witness and the defendant engaged in criminal conduct together, or that the 

witness has evidence that inculpates the defendant.” Whitman v. Ludwick, 2012 WL 651537, at 

*21. For the reasons discussed by the state appellate court, this Court concludes that those 

circumstances were not presented in this case. 

 The prosecutor did not mention to the jury the substance of Silva Allen’s anticipated 

testimony, nor did he question her in front of the jury. Instead, the prosecutor requested the trial 

court to determine, outside the presence of the jury, whether she intended to invoke her right not 

to testify against Petitioner. Moreover, the trial court gave to the jury a limiting instruction that 

was designed to minimize any prejudice that might otherwise accrue to defendant by reason of 

his wife’s appearance on the witness stand. “While nothing. . . excludes the possibility that [her] 

mere presence on the stand could create an inference unfavorable to the defendant which would 

add critical weight to the prosecution's case,” Whitman v. Ludwick, 2012 WL 651537, at *22 

(citation omitted), her refusal to testify thus “was not a primary source of” an inference 

indicating Petitioner’s guilt. Id. Petitioner has failed to establish that the prosecutor’s actions 

violated the Confrontation Clause, or that the state appellate court’s rejection of this claim was 

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unreasonable. 

 The record likewise fails to establish that the prosecutor’s actions in this regard deprived 

Petitioner of a constitutionally fair trial. “[M]erely calling a witness to the stand, even knowing 

that he will assert Fifth Amendment rights, does not rise to the level of constitutional violation.” 

Thomas v. Garraghty, 18 Fed.Appx. at 311. 

 Claim three is without merit. 

 CLAIM FOUR

 In claim four, Petitioner asserts that he was denied a fair trial based on the admission of 

testimony from Lieutenant Gorney regarding aliases allegedly used by Brenson as well as items 

found in Brenson’s cars. Petitioner acknowledges that the trial court instructed the jury to 

disregard Gorney’s testimony, but he nevertheless contends that the prejudice flowing from 

Gorney’s testimony in this regard could not be undone and that he was denied a constitutionally 

fair trial as a result. 

 The state appellate court rejected this claim, reasoning as follows: 

Appellant argues that the trial court should have granted a mistrial 

after the prosecutor elicited inadmissible evidence during 

Lieutenant Gorney's testimony regarding items found in Brenson's 

vehicles in an October 1999 search, including a shotgun, shotgun 

shells, masks, knives, a D .E.A. hat, rubber gloves, and zip ties. 

Before the State called this witness and outside the hearing of the 

jury, the trial court had ruled that: 

“We'll deny defendant's motion in limine allowing Lieutenant 

Gorney to testify regarding the search in 1999 of Mr. Brenson's 

vehicle. Obviously, I don't think you need to talk about a search 

warrant. He can talk about [how] he did a search of the vehicle and 

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testify, show what he found in that vehicle. Number one, I don't 

think it is 404(B). It's certainly relevant, if it is 404(B), it may go to 

the exception for 404(B), and certainly, not a violation of 403.” 

(12T. at 1386). Gorney then testified about items that he found in 

the vehicle of Appellant's codefendant that included wire ties, 

cable ties, hunting knives, and gloves. ( Id. at 1393, 165 N.E. 566; 

1395). 

After Lieutenant Gorney testified, defense counsel requested that 

Lieutenant Gorney's entire testimony be stricken from the record as 

being violative of their clients' right to a fair trial. Counsel also 

requested a mistrial on these grounds. The Court granted the 

motion to strike the testimony of Lieutenant Gorney, ruling: 

“All right, the court will grant the motion to strike the entire 

testimony. The reason for that is that it was admissible for 

identification under 404(B), specifically limiting items to knives, 

gloves, and ties. Unfortunately, there was evidence brought in of a 

D.E.A. hat, a shotgun, ski mask and so forth, and because of that 

under 403, although the knives, gloves, and ties were relevant, the 

probative value is substantially outweighed by unfair prejudice at 

this point. And there's no way because of the pictures to sort out 

for the jury the knives, gloves, and ties from the other evidence 

that is unfairly prejudicial to Mr. Brenson.” (12T. at 1535). The 

court denied the motion for mistrial. 

The granting of a mistrial rests within the sound discretion of the 

trial court as it is in the best position to determine whether the 

situation at hand warrants such action. State v. Glover (1988), 35 

Ohio St.3d 18, 517 N.E.2d 900; State v. Jones (1996) 115 Ohio 

App.3d 204, 207, 684 N.E.2d 1304, 1306. 

“A mistrial should not be ordered in a criminal case merely 

because some error or irregularity has intervened * * *.” State v. 

Reynolds (1988), 49 Ohio App.3d 27, 33, 550 N.E.2d 490, 497. 

The granting of a mistrial is necessary only when a fair trial is no 

longer possible. State v. Franklin (1991), 62 Ohio St.3d 118, 127, 

580 N.E.2d 1, 9; State v. Treesh (2001), 90 Ohio St.3d 460, 480, 

739 N.E.2d 749, 771. When reviewed by the appellate court, we 

should examine the climate and conduct of the entire trial, and 

reverse the trial court's decision as to whether to grant a mistrial 

only for a gross abuse of discretion. State v. Draughn (1992), 76 

Ohio App.3d 664, 671, 602 N.E.2d 790, 793-794, citing State v. 

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Maurer (1984), 15 Ohio St.3d 239, 473 N.E.2d 768, certiorari 

denied (1985), 472 U.S. 1012, 105 S.Ct. 2714, 86 L.Ed.2d 728; 

State v. Gardner (1998), 127 Ohio App.3d 538, 540-541, 713 

N.E.2d 473, 475; State v. Conley, Richland App. No.2009-CA-19, 

2009-Ohio-2903 at ¶ 20. 

In evaluating whether the trial judge acted properly in declaring a 

mistrial, the court has been reluctant to formulate precise, 

inflexible standards. Rather, the court has deferred to the trial 

court's exercise of discretion in light of all the surrounding 

circumstances: 

“ * * * We think that, in all cases of this nature, the law has 

invested Courts of justice with the authority to discharge a jury 

from giving any verdict, whenever, in their opinion, taking all the 

circumstances into consideration, there is a manifest necessity for 

the act, or the ends of public justice would otherwise be defeated. 

They are to exercise a sound discretion on the subject; and it is 

impossible to define all the circumstances, which would render it 

proper to interfere. To be sure, the power ought to be used with the 

greatest caution, under urgent circumstances, and for very plain 

and obvious causes. * * * But, after all, they have the right to order 

the discharge; and the security which the public have for the 

faithful, sound, and conscientious exercise of this discretion, rests, 

in this, as in other cases, upon the responsibility of the Judges, 

under their oaths of office.” United States v. Perez (1824), 22 U.S. 

(9 Wheat. 579, 580) 9 Wheat. 579, 22 U.S. 579, 6 L.Ed. 165. See, 

also, United States v. Clark (C.A.2, 1979), 613 F.2d 391, certiorari 

denied 449 U.S. 820, 101 S.Ct. 78, 66 L.Ed.2d 22 (a second 

prosecution is not barred on double jeopardy grounds when the 

trial judge had no reasonable alternative to ordering a mistrial in 

the first trial); State v. Widner (1981), 68 Ohio St.2d 188, 190, 429 

N.E.2d 1065, 1066-1067.See also, State v. Conley, Richland App. 

No.2009-CA-19, 2009-Ohio-2903 at 22. 

In Illinois v. Somerville (1973), 410 U.S. 458, 464, 93 S.Ct. 1066, 

35 L.Ed.2d 425, the Supreme Court further refined the 

circumstances under which a trial court can order a mistrial: 

“A trial judge properly exercises his discretion to declare a mistrial 

if an impartial verdict cannot be reached, or if a verdict of 

conviction could be reached, but would have to be reversed on 

appeal due to an obvious procedural error in the trial. If an error 

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would make reversal on appeal a certainty, it would not serve ‘the 

ends of public justice’ to require that the Government proceed with 

its proof when, if it succeeded before the jury, it would 

automatically be stripped of that success by an appellate court.” 

After considering the evidence in light of the circumstances under 

which it was given, and the possible effect of the testimony on the 

jury, we find the trial court's short, authoritative instruction to the 

jury sufficed to remedy any possible error regarding the stricken 

evidence. 

At the time the court decided to strike the whole of Lieutenant 

Gorney's testimony, the court instructed the jury as follows: 

“Folks, we heard testimony this morning from Lieutenant Gorney 

from the Toledo Police Department and at this point in time, I 

instruct you all to disregard his testimony in full, completely, strike 

it from your memory, treat it as though you never heard it.” 

At the conclusion of the trial, the court further instructed the jury, 

“A couple of preliminary instructions before I get to the final 

instructions. Number One, to remind you that you are not to 

consider Lieutenant Gorney's testimony and the pictures definite to 

that testimony in making your decision ...” (17T. at 2566). 

“Let me emphasize any statements or answers that were stricken 

by the Court or which you were instructed to disregard are not 

evidence and they must be treated as though you never heard them. 

You must not speculate as to why the Court sustained the objection 

to any question or what the answer to that question might have 

been.” (17T. at 2569).FN15 

FN15. Appellant did not object to these instructions nor does he 

challenge the clarity of these instructions on appeal. Accordingly, 

appellant has waived all but plain error. Puckett v. United States

(2009), --- U.S. ----, ----, 129 S.Ct. 1423, 1428, 173 L.Ed.2d 266. 

Here, it was not unreasonable, arbitrary, or unconscionable for the 

trial court to admonish the jury to ignore the stricken testimony 

rather than grant a mistrial. Curative instructions are presumed to 

be an effective way to remedy errors that occur during trial. State 

v. Treesh, supra, 90 Ohio St.3d at 480 739 N.E.2d at 771. The trial 

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judge in this case gave a short, authoritative instruction to the jury 

on three separate occasions that sufficed to remedy any possible 

error regarding the struck testimony. A jury is presumed to follow 

instructions given it by the court. State v. Henderson (1988), 39 

Ohio St.3d 24, 528 N.E.2d 1237. See also, State v. Campbell

(1994), 69 Ohio St.3d 38, 51, 630 N.E.2d 339 (where the Court 

opined that it was implausible for that defendant to argue that the 

jury determined a capital case based on a minor legal misstatement 

made by the state during voir dire). 

In the present case, the trial court did not abuse its discretion in 

denying appellant's motion for a mistrial. 

State v. Allen, 2010 WL 3784818, at *32-35. 

The state appellate court also rejected Petitioner’s contention that the admission of 

evidence regarding Brenson’s use of alias’ denied him a fair trial: 

Brenson has challenged the admissibility of this “other act” 

evidence in his appeal. See, State v. Brennon, Delaware App. No. 

09-CA-19, 2010-Ohio---- In that case we found that the evidence 

that Brenson was known by other names, including “Muhammad” 

or “Mustafa Muhammad” and “K.W. Kowpp” were not utilized to 

demonstrate criminal disposition or propensity; rather the evidence 

demonstrates the connection between Allen and Brenson and 

between Herrell and Brenson.FN9

FN9. Brenson's wife at the time, Robin Muhammad, testified that 

the couple was Muslim. (16T. at 2355). Accordingly, 

“Muhammad” may be Brenson's Muslim name and, therefore not 

an “alias.” Further, Brenson identified himself to the grand jury on 

April 15, 2008 as “James Muhammad.” (13T. at 1822). 

Specifically, Detective Leatherman testified that he spoke to Allen 

at his residence (14T. at 2032). He showed Allen some unmarked 

photographs ( Id. at 2033). The first photograph he showed Allen 

was of Mr. Brenson. ( Id. at 2033). Allen identified the photograph 

as “Muhammad” ( Id. at 2033). Allen indicated that he and 

Brenson were friends ( Id. at 2034). Allen indicated that he and 

Brenson were “good” or “close” friends ( Id. at 2034). Allen 

indicated that he and Brenson had known each other for “quite 

awhile” ( Id. at 2034). Herrell's children also identified a 

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photograph of Brenson as “Muhammad” an individual who knew 

their father; and lastly when Brenson checked into a hospital the 

morning after the murder, he used the name Mustafa Muhammad. 

The use of the alias “K.W. Kowpp” would also be relevant as it 

related to the identity of the person who signed a Meijer receipt 

dated June 9, 2000 from a Toledo-area store in the name of K .W. 

Yowpp, and this receipt was dropped in the victim's home on the 

night of the murder June 11, 2000. 

Accordingly, this evidence is permissible under Rule 404(b). It 

was not utilized to demonstrate or to establish criminal disposition 

or propensity; rather the evidence demonstrates the connection 

between Allen and Brenson and between Brenson and Herrell. The 

aliases are relevant to prove identification: that the same person 

who drove a truck from Toledo to Delaware, who dropped a Meijer 

receipt in the victim's house on the night of the murder, and who 

sought medical treatment the day after the brutal killing was 

Brenson despite three different names used. 

Further, evidence that Brenson assumed the alias Mustafa 

Muhammad immediately after the crimes occurred was admissible 

to show consciousness of guilt, “It is today universally conceded 

that the fact of an accused's flight, escape from custody, resistance 

to arrest, concealment, assumption of a false name, and related 

conduct, are admissible as evidence of consciousness of guilt, and 

thus of guilt itself. State v. Eaton (1969), 19 Ohio St.2d 145, 160, 

48 O.O.2d 188, 196, 249 N.E.2d 897, 906, vacated on other 

grounds (1972), 408 U.S. 935, 92 S.Ct. 2857, 33 L.Ed.2d 750, 

quoting 2 Wigmore, Evidence (3 Ed.) 111, Section 276.” State v. 

Williams (1997), 79 Ohio St.3d 1, 11, 679 N.E.2d 646, 657. The 

evidence further served to corroborate Allen's identification of 

Brenson. 

Finally, Brenson admitted to using these names in his 

conversations with the police. (13T. at 1822; 1834; 1857; 1858). 

Because Allen was charged with complicity, this evidence was 

relevant and admissible against Allen. 

R.C. 2923.03 provides: “(A) No person, acting with the kind of 

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culpability required for the commission of an offense, shall do any 

of the following: 

 “ * * * 

“(2) Aid or abet another in committing the offense .” 

R.C. 2923.03(F) states, “A charge of complicity may be stated in 

terms of this section, or in terms of the principal offense.” 

“The Supreme Court of Ohio clarified Ohio's position on the issue 

of complicity in State v. Perryman (1976), 49 Ohio St.2d 14, 358 

N.E.2d 1040, vacated in part on other grounds sub nom, Perryman 

v. Ohio (1978), 438 U.S. 911, 98 S.Ct. 3136, 57 L.Ed.2d 1156. The 

court unequivocally approved of the practice of charging a jury 

regarding aiding and abetting even if the defendant was charged in 

the indictment as a principal. Id. The court held that the indictment 

as principal performed the function of giving legal notice of the 

charge to the defendant. Id. Therefore, if the facts at trial 

reasonably supported the jury instruction on aiding and abetting, it 

is proper for the trial judge to give that charge. Perryman, supra at 

27, 28, 358 N.E.2d 1040.” State v. Payton (April 19, 1990), 8th 

Dist. Nos. 58292, 58346. 

R.C. 2923.03(F) adequately notifies defendants that the jury may 

be instructed on complicity, even when the charge is drawn in 

terms of the principal offense. See State v. Keenan (1998), 81 Ohio 

St.3d 133, 151, 689 N.E.2d 929, 946, citing Hill v. Perini (C.A.6, 

1986), 788 F.2d 406, 407-408. State v. Herring (2002), 94 Ohio 

St.3d 246, 251 762 N.E.2d 940, 949. 

“[To] support a conviction for complicity by aiding and abetting 

pursuant to R.C. 2923.03(A)(2), the evidence must show that the 

defendant supported, assisted, encouraged, cooperated with, 

advised, or incited the principal in the commission of the crime, 

and that the defendant shared the criminal intent of the principal.” 

State v. Johnson (2001), 93 Ohio St.3d 240, 754 N.E.2d 796, 

syllabus. 

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Although the state need not establish the principal's identity, it 

must, at the very least, prove that a principal committed the 

offense. State v. Perryman (1976), 49 Ohio St.2d 14, 358 N.E.2d 

1040, paragraph four of the syllabus; State v. Hill (1994), 70 Ohio 

St.3d 25, 28, 635 N.E.2d 1248, 1251. However, the state does not 

need to prove that the accomplice and principal had a specific plan 

to commit a crime. Johnson, 93 Ohio St.3d at 245, 754 N.E.2d 

796. The fact that the defendant shares the criminal intent of the 

principal may be inferred from the circumstances surrounding the 

crime, which may include the defendant's presence, 

companionship, and conduct before and after the offense is 

committed. Id. at 245-246, 754 N.E.2d 796. This is a situation 

where “[c]ircumstantial evidence and direct evidence inherently 

possess the same probative value,” State v. Jenks (1991), 61 Ohio 

St.3d 259, 574 N.E.2d 492, paragraph one of the syllabus, because 

“[t]he intent of an accused person dwells in his mind. Not being 

ascertainable by the exercise of any or all of the senses, it can 

never be proved by the direct testimony of a third person, and it 

need not be.” In re Washington, 81 Ohio St.3d 337, 340, 691 

N.E.2d 285, 1998-Ohio-627, quoting State v. Huffman (1936), 131 

Ohio St. 27, 1 N.E.2d 313, paragraph four of the syllabus. 

Finally, we note the jury was aware Brenson used the names 

“Muhammad” “Mustafa Muhammad” and “K.W. Kowpp.” The 

revelation that he also used the name “Jonquail Kirkland” or “M.A. 

Muhammad” or “Robin Shabazz” would be merely cumulative. 

We find no error, plain or otherwise from the admission of 

evidence that Brenson was known by other names. We find that 

there was “no reasonable possibility” that the testimony concerning 

Brenson's use of these other names contributed to Allen's 

conviction, and any error was harmless beyond a reasonable doubt. 

See State v. Rahman (1986), 23 Ohio St.3d 146, 151, 492 N.E.2d 

401, 407. 

We find that appellant did not meet his burden of demonstrating 

actual prejudice because of the admission of this evidence in a 

joint trial with Brenson. 

State v. Allen, 2010 WL 3784818, at *16-18. 

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 Federal habeas review of state court evidentiary rulings is extremely limited. Waters v. 

Kassulke, 916 F.2d 329, 335 (6th Cir. 1990). Evidentiary questions generally do not rise to a 

constitutional level unless the error was so prejudicial as to deprive a defendant of a 

fundamentally fair trial, thereby violating due process. Cooper v. Sowders, 837 F.2d 284, 286 

(6th Cir. 1988); see also Walker v. Engle, 703 F.2d 959, 962 (6th Cir. 1983). When such errors 

are alleged, the federal court’s inquiry in reviewing these claims is directed to whether the 

evidence was rationally connected to the crime charged. Carter v. Jago, 637 F.2d 449, 457 (6th

Cir. 1980). Such were the circumstances here. 

 Claim four is without merit. 

CLAIM FIVE 

In claim five, Petitioner asserts that he was denied a fair trial based on cumulative error. 

This claim fails to provide a basis for federal habeas corpus relief. 

 The Supreme Court has not held that distinct constitutional claims can be cumulated for 

the purpose of supporting habeas relief. Lorraine v. Coyle, 291 F.3d 416, 447 (6th Cir. 2002). 

“[W]e have held that, post-AEDPA, not even constitutional errors that would not individually 

support habeas relief can be cumulated to support habeas relief.” Moore v. Parker, 425 F.3d 

250, 256 (6th Cir. 2005)(citing Scott v. Elo, 302 F.3d 598, 607 (6th Cir. 2002). 

 Claim five is without merit. 

 PROCEDURAL DEFAULT

Respondent contends that Petitioner has procedurally defaulted claims six and seven. In 

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recognition of the equal obligation of the state courts to protect the constitutional rights of 

criminal defendants, and in order to prevent needless friction between the state and federal 

courts, a state criminal defendant with federal constitutional claims is required to present those 

claims to the highest court of the state for consideration. 28 U.S.C. § 2254(b), (c). If the 

petitioner fails to do so, but the state still provides a remedy to pursue, his or her petition is 

subject to dismissal for failure to exhaust state remedies. Id.; Coleman v. Thompson, 501 U.S. 

722, 731 (1991); Deitz v. Money, 391 F.3d 804, 808 (6th Cir. 2004). If, because of a procedural 

default, the petitioner can no longer present the relevant claims to a state court, the petitioner also 

waives the claims for purposes of federal habeas review unless he or she can demonstrate caus e 

for the procedural default and actual prejudice resulting from the alleged constitutional error. 

Edwards v. Carpenter, 529 U.S. 446, 451 (2000); Coleman, 501 U.S. at 724; Murray v. Carrier,

477 U.S. 478, 485 (1986). 

 In the Sixth Circuit, a court must undertake a four-part analysis to determine whether 

procedural default is a bar to a habeas petitioner’s claims. Maupin v. Smith, 785 F.2d 135, 138 

(6th Cir. 1986); see also Scuba v. Brigano, 259 F. App’x. 713, 718 (6th Cir. 2007) (following the 

four-part analysis of Maupin). Specifically, the United States Court of Appeals for the Sixth 

Circuit requires the district courts to engage in the following inquiry: 

 First, the court must determine that there is a state procedural rule that is 

 applicable to the petitioner’s claim and that the petitioner failed to comply wit the 

 rule. . . . Second, the court must decide whether the state courts actually enforced 

 the state procedural sanction. . . . Third, the court must decide whether the state 

 procedural forfeiture is an adequate and independent state ground on which the 

 state can rely to foreclose review of a federal constitutional claim. 

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Maupin, 785 F.2d at 138 (internal quotations omitted). Finally, if “the court determines that a 

state procedural rule was not complied with and that the rule [has] an adequate and independent 

state ground, then the petitioner” may still obtain review of his claims on the merits if he 

establishes: (1) a substantial reason to excuse the default and (2) that he was actually prejudiced 

by the alleged constitutional error. Id. ‘Cause’ under this test “must be something external to 

the petitioner, something that cannot fairly be attributed to him[;] . . . some factor external to the 

defense [that] impeded [] efforts to comply with the State’s procedural rule.” Coleman, 501 U.S. 

at 753. This “cause and prejudice” analysis also applies to failure to raise or preserve issues for 

review at the appellate level or failure to appeal at all. Id at 750.

 Nevertheless, “‘[i]n appropriate cases’ the principles of comity and finality that inform 

the concepts of cause and prejudice ‘must yield to the imperative of correcting a fundamentally 

unjust incarceration.’” Murray, 477 U.S. at 495 (quoting Engle v. Isacc, 456 U.S. 107, 135 

(1892)). Petitioners who fail to show cause and prejudice for procedural default may nonetheless 

receive review of their claims if they can demonstrate that a court’s refusal to consider a claim 

would result in a “fundamental miscarriage of justice.” Coleman, 501 U.S. at 750; see also Lott 

v. Coyle, 261 F.3d 594, 601–02 (6th Cir. 2001) (same). The fundamental miscarriage of justice 

exception requires a showing that “in light of the new evidence, no juror, acting reasonably, 

would have voted to find him guilty beyond a reasonable doubt.” Schlup v. Delo, 513 U.S. 298, 

329 (1995). 

 In claim six, Petitioner asserts that he was denied a fair trial because the prosecutor made 

false statements during closing argument. In claim seven, Petitioner asserts, inter alia, the 

ineffective assistance of trial counsel because his attorney failed to object to these improper 

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statements, failed to move for a mistrial, failed to file a motion to suppress DNA evidence, failed 

to challenge Petitioner’s arrest and extradition procedures, and failed to seek discovery. All 

these claims, being readily apparent from the face of the record, should have been raised on 

direct appeal, where Petitioner was represented by new counsel, but were not. Further, Petitioner 

may no longer raise such claims in the Ohio courts under Ohio’s doctrine of res judicata. See 

State v. Cole, 2 Ohio St.3d 112 (1982); State v. Ishmail, 67 Ohio St.2d 16 (1981); State v. Perry,

10 Ohio St.2d 175 (1967). The state courts were never given an opportunity to enforce the 

procedural rule at issue due to the nature of Petitioner's procedural default. 

 Ohio's res judicata rule is adequate and independent under the third part of the Maupin

test. To be “independent,” the procedural rule at issue, as well as the state court's reliance 

thereon, must rely in no part on federal law. See Coleman v. Thompson, 501 U.S. 722, 732–33 

(1991). To be “adequate,” the state procedural rule must be firmly established and regularly 

followed by the state courts. Ford v. Georgia, 498 U.S. 411 (1991). “[O]nly a ‘firmly established 

and regularly followed state practice’ may be interposed by a State to prevent subsequent review 

by this Court of a federal constitutional claim.” Id. at 423 (quoting James v. Kentucky, 466 U.S. 

341, 348–351 (1984)); see also Barr v. City of Columbia, 378 U.S. 146, 149 (1964); NAACP v. 

Alabama ex rel. Flowers, 377 U.S. 288, 297 (1964); see also Jamison v. Collins, 100 F.Supp.2d 

521, 561 (S.D. Ohio 1998). 

 The Sixth Circuit has consistently held that Ohio's doctrine of res judicata, i.e., the Perry

rule, is an adequate ground for denying federal habeas relief. Lundgren v. Mitchell, 440 F.3d 

754, 765 (6th Cir. 2006); Coleman v. Mitchell, 268 F.3d 417, 427–29 (6th Cir. 2001); Seymour v. 

Walker, 224 F.3d 542, 555 (6th Cir. 2000); Byrd v. Collins, 209 F.3d 486, 521–22 (6th Cir. 

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2000); Norris v. Schotten, 146 F.3d 314, 332 (6th Cir. 1998). Ohio courts have consistently 

refused, in reliance on the doctrine of res judicata, to review the merits of claims because they 

are procedurally barred. See State v. Cole, 2 Ohio St.3d at 112; State v. Ishmail, 67 Ohio St.2d at 

16. Additionally, the doctrine of res judicata serves the state's interest in finality and in ensuring 

that claims are adjudicated at the earliest possible opportunity. With respect to the independence 

prong, it is clear that Ohio’s notion of res judicata does not rely on or otherwise implicate federal 

law. Accordingly, the Court concludes that the Perry rule is an adequate and independent ground 

for denying relief. 

 Petitioner may still obtain review of the merits of these claims if he establishes cause for 

his procedural default, as well as actual prejudice from the alleged constitutional violations. 

“ ‘[C]ause’ under the cause and prejudice test must be something 

external to the petitioner, something that cannot fairly be attributed 

to him[;] ... some objective factor external to the defense [that] 

impeded ... efforts to comply with the State's procedural rule.” 

Coleman v. Thompson, 501 U.S. 722, 753, 111 S.Ct. 2546, 115 

L.Ed.2d 640 (1991). 

Maples v. Stegall, 340 F.3d 433, 438 (6th Cir.2003). The constitutionally ineffective assistance 

of counsel may constitute cause for a procedural default, so long as such claim has been 

presented to the state courts and is not, itself, procedurally defaulted. Edwards v. Carpenter, 529 

U.S. 446, 451-52 (2000) (citing Murray v. Carrier, 477 U.S. 478, 488–89 (1986)). 

 In claim seven, Petitioner alleges not only the ineffective assistance of trial counsel but 

also the ineffective assistance of appellate counsel. This claim of ineffective assistance of 

appellate counsel is, however, procedurally defaulted and therefore cannot serve as cause for 

Petitioner’s failure to raise his claim six and his claim of ineffective assistance of trial counsel on 

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direct appeal. Petitioner filed an application to reopen the appeal pursuant to Ohio Appellate 

Rule 26(B) in which he asserted the ineffective assistance of appellate counsel; however, the 

state appellate court denied his Rule 26(B) application as untimely: 

Our original judgment was filed on September 28, 2010, and 

appellant’s application was filed on January 6, 2012. Accordingly, 

appellant’s application was not timely filed within ninety (90) days 

of the journalization of our opinion in appellant’s case. Appellant 

does not give a reason for his delayed filing. 

The Ohio Supreme Court has interpreted App.R. 26 and App.R. 

14, stating that both were “intended to allow the belated 

presentation of colorable claims that defendants/appellants were 

prevented from presenting timely by particular circumstances. 

Lack of effort or imagination, and ignorance of the law, are not 

such circumstances and do not automatically establish good cause 

for failure to seek timely relief.” . . . . 

An applicant has no right to counsel in filing the application, and 

he does not show good cause if he has no counsel to submit a 

timely app.R. 26(B) application. . . . 

The Supreme Court has upheld judgments denying applications for 

reopening solely on the basis that the application was not timely 

filed and the applicant failed to show “good cause for filing at a 

later time.” . . . . 

Exhibit 29 to Return of Writ. Although the state appellate court alternatively considered and 

dismissed petitioner's claim on the merits, that alternative ruling does not forgive the waiver or 

otherwise revive Petitioner’s claim for habeas corpus review. See Harris v. Reed, 489 U.S. 255, 

264 n. 10 (1989) (“a state court need not fear reaching the merits of a federal claim in an 

alternative holding”); Bowling v. Parker, 344 F.3d 487, 498 (6th Cir. 2003) (where state court's 

dismissal of claim on merits constitutes an alternative holding, federal habeas court will consider 

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the claim procedurally defaulted). Moreover, Petitioner subsequently failed to timely appeal the 

appellate court’s denial of his Rule 26(B) application to the Ohio Supreme Court, and Ohio does 

not permit delayed appeals in Rule 26(B) proceedings. Ohio Supreme Court Rule of Practice 

2.2(A)(4)(c). 

 In sum, Petitioner has failed to establish cause for his procedural default of claims six and 

seven. 

 Beyond the four-part Maupin analysis, this Court is required to consider whether this is 

“an extraordinary case, where a constitutional violation has probably resulted in the conviction of 

one who is actually innocent.” Murray v. Carrier, 477 U.S. at 491; see also Sawyer v. Whitley,

505 U.S. 333. The record fails to reflect such circumstances here. 

 Claims six and seven are therefore procedurally defaulted. 

WHEREUPON, the Magistrate Judge RECOMMENDS that this action be 

DISMISSED. 

PROCEDURE ON OBJECTIONS 

 If any party objects to this Report and Recommendation, that party may, within fourteen 

(14) days of the date of this report, file and serve on all parties written objections to those 

specific proposed findings or recommendations to which objection is made, together with 

supporting authority for the objection(s). A judge of this Court shall make a de novo

determination of those portions of the report or specified proposed findings or recommendations 

to which objection is made. Upon proper objections, a judge of this Court may accept, reject, or 

modify, in whole or in part, the findings or recommendations made herein, may receive further 

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evidence or may recommit this matter to the magistrate judge with instructions. 28 U.S.C. § 

636(b)(1). 

 The parties are specifically advised that failure to object to the Report and 

Recommendation will result in a waiver of the right to have the district judge review the Report 

and Recommendation de novo, and also operates as a waiver of the right to appeal the decision of 

the District Court adopting the Report and Recommendation. See Thomas v. Arn, 474 U.S. 140 

(1985); United States v. Walters, 638 F.2d 947 (6th Cir.1981). 

 The parties are further advised that, if they intend to file an appeal of any adverse 

decision, they may submit arguments in any objections filed, regarding whether a certificate of 

appealability should issue. 

 s/ Norah McCann King 

 Norah McCann King 

December 7, 2012 United States Magistrate Judge 

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