Mitzel v. Tate

• Citation: 267 F.3d 524
• Decision Date: 08 June 2001
• Docket Number: No. 99-3992,99-3992
• Parties: (6th Cir. 2001) Robert Mitzel, Petitioner-Appellant, v. Arthur Tate, Warden, Respondent-Appellee. Argued:
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 524

267 F.3d 524 (6th Cir. 2001)

Robert Mitzel, Petitioner-Appellant, v. Arthur Tate, Warden, Respondent-Appellee.

No. 99-3992

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: June 8, 2001

Decided and Filed: October 5, 2001

Appeal from the United States District Court for the Northern District of Ohio at Youngstown. No. 96-02322, Peter C. Economus, District Judge. [Copyrighted Material Omitted] David H. Bodiker, Thomas R. Wetterer, Jr., PUBLIC DEFENDER'S OFFICE, Columbus, Ohio, for Appellant.

Stuart W. Harris, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, for Appellee.

Before: KEITH, BATCHELDER, and MOORE, Circuit Judges.

OPINION

KAREN NELSON MOORE, Circuit Judge.

Petitioner-Appellant Robert Mitzel ("Mitzel" or "petitioner") appeals the district court's denial of his petition for a writ of habeas corpus. We granted a certificate of appealability ("COA") with respect to three issues:

1) whether the trial court improperly admitted into evidence statements made by Mitzel to police;

2) whether the trial court improperly failed to give a jury instruction on aiding and abetting a suicide; and

3) whether Mitzel's trial counsel rendered ineffective assistance by not requesting a jury instruction on aiding and abetting suicide.

We now AFFIRM the district court's decision denying Mitzel habeas corpus relief with respect to all three issues.

I. BACKGROUND

On the evening of January 12, 1987, the Niles, Ohio Police Department received several telephone calls from a concerned Robert Mitzel. Over the course of Mitzel's phone conversations with the Niles Police, Mitzel informed them that he was worried that his friend, Randy Ralston, had committed suicide earlier that day. Although the facts relayed by Mitzel over the telephone were, at times, inconsistent, he did gradually reveal over the course of his four telephone conversations with the police that he had been with Ralston earlier that day; that Ralston had talked about committing suicide throughout the day; and that Mitzel had dropped Ralston off behind the "old King's Market" earlier that afternoon. Trial Transcript ("Tr.") at 41 (Officer Wilson Direct Exam.). Mitzel informed the police that Ralston had mentioned using either a .22-caliber rifle or sleeping pills to commit suicide, and that Ralston had even asked Mitzel to help him commit suicide earlier that morning while in class at the vocational school they both attended.¹

Based on the information given by Mitzel, the Niles Police dispatched two officers to King's Market at approximately 9:00 p.m. The officers noticed tire tracks and two sets of footprints leading into the woods behind the market. The officers could find, however, only one set of footprints leading out of the woods. A short distance into the woods, the officers found Randy Ralston's body. Ralston had suffered two gunshot wounds to the head, and had no pulse. Near Ralston's body, the officers discovered five spent .22-caliber shotgun shells.

Captain Robert Jacola, called in to assist with evidence gathering at the crime scene, spoke with Mitzel after Jacola arrived back at the police department. Mitzel had come to the police department of his own volition. Before speaking with Mitzel, Jacola read Mitzel a "rights waiver" form and had Mitzel initial each line after Jacola explained it to him. Mitzel also signed the waiver form after Jacola verbally explained the form to him. Officer Wilson of the Niles Police Department witnessed this process.

In this first statement to the police, Mitzel told Jacola that, on the morning of January 12, 1987, Ralston had asked Mitzel to kill someone for Ralston. Mitzel stated that it was not until later that morning that he realized that this "someone" was Ralston, himself.² Mitzel told the officers that, sometime in the afternoon or early evening on January 12, he dropped Ralston off behind King's Market. According to Mitzel, this was the last time he had seen Ralston. Jacola checked with the police dispatcher to determine if Mitzel's calls to the station earlier that evening were consistent with Mitzel's statement to him.

Upon returning to the interrogation room, Jacola asked Mitzel to tell him the story again. At this point, Mitzel revealed more details and eventually drafted a written statement to Captain Jacola after signing another rights waiver form. In this written statement, Mitzel admitted to accompanying Ralston into the woods behind King's Market. Mitzel further stated that Ralston asked Mitzel to shoot him once they were in the woods, but Mitzel declined. At this point, according to Mitzel's statement, Ralston grabbed the .22-caliber rifle that Mitzel was holding, put it to his own head, and shot himself. Despite the fact that Ralston had shot himself in the head, Mitzel told the police that Ralston remained conscious and able to communicate with Mitzel. Mitzel allegedly asked Ralston if he wanted Mitzel to call an ambulance. Ralston told Mitzel he did not want an ambulance, and instead asked Mitzel to shoot Ralston until he was dead. According to Mitzel's statement, Mitzel then shot Ralston in the head, killing him. Mitzel then went home and called the police.

After Mitzel drafted his own statement, Captain Jacola typed, word for word, another, more detailed, statement given by Mitzel. In this typed statement, in addition to the details given in Mitzel's hand-written statement, Mitzel admitted to going to his house after school on the day of the incident with Ralston to pick up Mitzel's .22-caliber rifle³. Mitzel further stated that the two went to K-Mart to purchase shotgun shells for the rifle. Mitzel read and signed the statement after Jacola had finished typing it.

After Mitzel signed the typed statement, Captain Jacola asked him to videotape a statement. Mitzel agreed, signing another rights waiver form. In the videotaped statement, Mitzel further admitted that, when in the woods, he had initially loaded, cocked, and aimed the rifle at Ralston, but was unable to pull the trigger. Because he was unable to pull the trigger himself, Mitzel then demonstrated to the police how he held the stock of the gun for Ralston as Ralston pulled the trigger, thereby inflicting the first gunshot wound.

Following the videotaped statement, Mitzel agreed to an atomic absorption test, a test used to determine if one has recently discharged a firearm. The test results showed that the traces of barium and antimony on Mitzel's hands were not sufficiently large to be consistent with Mitzel having used a firearm. An atomic absorption test performed on Ralston, however, did show barium and antimony traces consistent with gunshot residue. According to Mitzel's own testimony at trial, Mitzel had taken a shower after the shooting and before going to the police department.

Mitzel's statements did not conclude until after midnight on January 13, 1987, and the police held Mitzel in jail until the next morning, at which time he made his initial appearance before a judge. Prior to the initial appearance, Mitzel's father hired an attorney to represent Mitzel, and the attorney did accompany Mitzel to the proceeding. Thereafter, the police asked Mitzel and his attorney if Mitzel would be willing to take a polygraph test. Mitzel's attorney at the time, Fred Snyder, gave the police permission to administer the test that day, but told Officer Tedesco of the Niles Police Department that Snyder would be unable to witness the examination because he had another matter to attend to.

After the test was administered, Niles police officers informed Mitzel before escorting him back to his jail cell that the test results indicated that Mitzel had not told "the whole truth." Supp. Hr'g at 63. Mitzel then told the officers that he wanted to tell them the whole truth. The officers informed him that he had the right to have his attorney present during questioning, but the defendant allegedly stated that he did not need his attorney present. Mitzel also signed another rights waiver form. Whereas Mitzel originally told police that Ralston took the gun from Mitzel and alone inflicted the first shot, in this post-polygraph statement, Mitzel explained that Ralston was unable to pull the trigger himself, and Ralston asked Mitzel for help. According to this statement, Ralston asked Mitzel to help pull Ralston's thumb, which was on the trigger. Mitzel then stated that he did help pull on Ralston's thumb, at which point the gun fired. Tr. at 121-22 (Officer Tedesco Cross-Exam.). This was the last of Mitzel's statements to the police.

Prior to trial, Mitzel moved to suppress all of the statements he made to the Niles Police. Following a suppression hearing, the state trial judge denied, in all respects, Mitzel's motion to suppress. At trial, all of Mitzel's statements were admitted into evidence. Apart from Mitzel's statements to the police, the primary evidence presented by the State was that of the pathologist who performed Ralston's autopsy. The pathologist testified that both bullet wounds were the main cause of Ralston's death. The pathologist could not state conclusively whether death would have occurred had not both shots been fired.

The defense called only two witnesses: Robert Mitzel, and his father, William. On the stand, Robert Mitzel admitted to shooting Ralston in the head, despite the fact that Ralston was still conscious and talking to Mitzel. Mitzel testified that Ralston had inflicted the first gunshot wound, and that Mitzel inflicted the second wound only after Ralston asked Mitzel to shoot Ralston until he was dead.

On July 7, 1987, the jury found the defendant guilty of murder and an accompanying firearm specification. The trial judge sentenced Mitzel to a definite term of three years for the firearm specification, and term of fifteen years to life for the murder conviction.

On direct appeal to the Ohio Court of Appeals, Mitzel raised a number of claims ...