Hough v. Anderson
| Citation | 272 F.3d 878 |
| Decision Date | 20 November 2001 |
| Docket Number | No. 99-3968,99-3968 |
| Parties | (7th Cir. 2001) KEVIN L. HOUGH, Petitioner-Appellant, v. RONDLE ANDERSON, Respondent-Appellee |
| Court | United States Courts of Appeals. United States Court of Appeals (7th Circuit) |
Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 98 C 246--Allen Sharp, Judge. [Copyrighted Material Omitted]
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[Copyrighted Material Omitted] Before RIPPLE, DIANE P. WOOD and EVANS, Circuit Judges.
Kevin Hough was convicted of the murders of Ted Bosler and Gene Rubrake in the Superior Court of Allen County, Indiana, and was sentenced to death. After exhausting his state remedies, Mr. Hough filed a petition for a writ of habeas corpus in the district court. The district court denied the petition, but granted Mr. Hough a certificate of appealability. For the reasons set forth in the following opinion, we affirm the judgment of the district court.
On November 6, 1985, Mr. Hough and his younger brother, Duane Lapp, set out for the home of Ted Bosler and Gene Rubrake. Once there, Mr. Hough approached Rubrake and helped him unload groceries from his car; Lapp accompanied Mr. Hough. Mr. Hough then followed Rubrake into the basement where Bosler joined them. Once in the basement, Mr. Hough pulled a .45 caliber pistol from his shoulder holster and told Bosler and Rubrake to lie down on the floor. Rubrake swung at Mr. Hough with the television remote control. Mr. Hough responded by shooting Rubrake in the chest. Bosler, however, dropped to the floor; Mr. Hough then shot Bosler while he was lying on the floor. When Rubrake appeared to move, Mr. Hough shot him in the face. Mr. Hough and Lapp then started up the stairs, but Mr. Hough returned to the basement to retrieve a beer can and a remote control that, he believed, might contain his fingerprints. While in the basement, Mr. Hough also removed several rings from the bodies of Bosler and Rubrake. As Mr. Hough left the basement, he stepped on Rubrake's face.
After the murders, Mr. Hough took Lapp back to his (Mr. Hough's) home. There, Mr. Hough packed and left for Indianapolis with his fiancee, Noreen Akers.
Less than a month before the Bosler/Rubrake murders, Mr. Hough had committed another murder. On October 27, 1985, Mr. Hough had told his friend, Juan Fernandez, that "[t]onight's the night to hit Greg Nicola's house." Tr. 1210, State's Ex.21. Then Mr. Hough, Fernandez, and another man, Donald Maley, went to the home of Greg Nicola for the purpose of evaluating the prospects of robbing the house. Mr. Hough directed Fernandez to park approximately three to four blocks away on another street; Mr. Hough and Maley left the car and went to the house. When Antoni Bartkowiak answered the door, Mr. Hough stuck a .45 caliber handgun into his stomach and backed him into the residence. Mr. Hough made Bartkowiak lie down on the floor, and Mr. Hough and Maley handcuffed Bartkowiak's hands behind his back. Mr. Hough discovered a semi-automatic weapon and shells in the house, which he handed to Maley. Mr. Hough then told Maley to hold it against Bartkowiak and use it if necessary. Mr. Hough then searched the house.
After ransacking the house, Mr. Hough questioned Bartkowiak regarding cocaine that he believed to be in the residence. When Bartkowiak denied knowledge of the cocaine, Mr. Hough used a device to inflict electric shocks on Bartkowiak. Mr. Hough and Maley then took Bartkowiak to the basement. En route downstairs, Mr. Hough instructed Maley to return to the main floor to get a cushion from the couch. Once in the basement, Mr. Hough forced Bartkowiak to lean over a rollaway bed. Mr. Hough then took the cushion, placed it over the back of Bartkowiak's head and shot Bartkowiak.
After the murder, Mr. Hough and Maley returned to the car and left for home. Mr. Hough took two bags of stolen items to the basement of the house and emptied the contents. Mr. Hough then gave Maley $80 and stated that it came from Bartkowiak's wallet. He also told Maley that he could have the shotgun, but Maley declined. After complaining to Mr. Hough that he had not gotten his share, Maley left. After that, Mr. Hough told Fernandez that he had found an additional $400, but that he did not wish to divide it with Maley because Maley had not done his part. A few days later, Mr. Hough gave Fernandez the .25 caliber semi- automatic weapon and told him to dispose of it; Fernandez did so.
Mr. Hough was tried and convicted for the murder of Bartkowiak in November 1986.1 These proceedings were given significant coverage in the Fort Wayne newspapers.
Mr. Hough's trial for the Bosler/Rubrake murders was scheduled to take place less than three months after his conviction for the Bartkowiak murder. Because of the extensive press coverage that the trial for the Bartkowiak murder had received, counsel for Mr. Hough requested a change of venue. The court denied the request for change of venue, but ordered that the jury be chosen from Marion County.
During this same time frame, Mr. Hough requested that he be allowed to act as co-counsel with his attorneys because he believed that they had not represented him adequately in the Bartkowiak trial. The court denied the request, but allowed one of Mr. Hough's attorneys to withdraw. The court then appointed another attorney to assist the remaining attorney with Mr. Hough's representation. At the request of the defense, the trial was then postponed until May 1987.
When the trial commenced, Maley testified against Mr. Hough pursuant to a plea agreement. Although Maley had not been present at the Bosler/Rubrake murders, he had seen Mr. Hough both before and after the murders, and he was called to testify about conversations he had with Mr. Hough at those times. After Maley testified, defense counsel began to cross-examine him about his plea agreement. The prosecutor then requested a side bar. During the ensuing colloquy with the judge, the prosecutor suggested that, if defense counsel cross-examined Maley on the plea agreement, it would open up the door to questions as to whether Mr. Hough was present at, and convicted for, another murder. Defense counsel acknowledged that he may be opening the door to such questioning, but nevertheless wanted to pursue this course. After the side bar concluded, defense counsel asked Maley if the plea agreement "involve[d] not being charged with an unrelated murder" and whether he "was involved in an unrelated murder and . . . [was] not charged with that crime." Tr. 900-01.
During the redirect examination of Maley, the prosecutor focused on the opening created by defense counsel's inquires into the plea agreement. Initially, the prosecutor limited his questions to the requirements of the agreement. He also, however, asked Maley whether the plea agreement required him to testify against Mr. Hough in the Bartkowiak case and whether Maley was present when Mr. Hough killed Bartkowiak. Further inquiries into the Bartkowiak murder, however, met with objections from defense counsel.
The prosecutor then moved to admit Maley's plea agreement. He next asked Maley whether he had fulfilled the plea agreement by testifying against Mr. Hough, whether Mr. Hough had been convicted of that murder and who had killed Bartkowiak. Before Maley could respond to this last question, defense counsel objected on the ground that this was an attempt to retry the Bartkowiak murder and to elicit the details of the Bartkowiak murder, and that it was beyond the scope of cross-examination. The prosecutor, however, replied that he only was trying to determine if Maley "killed anyone that day." Id. at 925. On that basis, the court overruled the objection.
On the second redirect, the roles of Maley and Mr. Hough in the Bartkowiak murder arose again. Specifically, the prosecutor asked Maley whether he knowingly had committed a burglary, whether Mr. Hough was involved and whether Mr. Hough "shot a man to death." Id. at 933. While Maley was answering the question, defense counsel objected to both the question and response. The court, however, overruled the objection on the ground that the matter already had been covered.
During the trial, Mr. Hough also took the stand in his own defense. Mr. Hough tried to explain why Maley and his brother, Duane Lapp, would testify against him and accuse him of murder. Also, at the request of defense counsel, Mr. Hough detailed his criminal record, including his prior conviction for homicide. At the end of his examination, defense counsel asked Mr. Hough whether he had "murder[ed] those two men." Id. at 1105. Mr. Hough responded, "No, I did not." Id.
The prosecutor then cross-examined Mr. Hough about Maley's testimony against him in the Bartkowiak trial. One of the last questions focused on whether Bartkowiak was handcuffed at the time of the murder. At that point, defense counsel interrupted on the basis that, again, the prosecutor was attempting to retry the Bartkowiak case. The prosecutor stated that he would move on. On recross, the prosecutor again returned to the robbery prior to the Bartkowiak murder. The court sustained the objection to this line of inquiry and noted that "[i]t sounds to me like we're retrying the case." Id. at 1132.
After the trial concluded, the jury deliberated and returned a verdict against Mr. Hough. The case then proceeded to the sentencing phase. The state submitted that Mr. Hough was eligible for the death penalty based on three statutory aggravating circumstances: 1) double murder; 2) murder during robbery or attempted robbery; and 3) prior murder conviction. During its opening instructions to the jury, the court stated that "[y]ou may recommend the death penalty, only if you find, one, that the State of Indiana has...
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