Ayers v. Hudson

• Decision Date: 05 October 2010
• Docket Number: No. 08-3310.,08-3310.
• Citation: 623 F.3d 301
• Parties: David AYERS, Petitioner-Appellant, v. Stuart HUDSON, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

623 F.3d 301

David AYERS, Petitioner-Appellant,

v.Stuart HUDSON, Warden, Respondent-Appellee.

No. 08-3310.

United States Court of Appeals,Sixth Circuit.

Argued: June 9, 2010.

Decided and Filed: Oct. 5, 2010.

Rehearing and Rehearing En Banc Denied Dec. 28, 2010.

COPYRIGHT MATERIAL OMITTED.

ARGUED: John T. Martin, Cuyahoga County Public Defender, Cleveland, Ohio, for Appellant. Elizabeth A. Matune, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: John T. Martin, Cuyahoga County Public Defender, Cleveland, Ohio, for Appellant. Elizabeth A. Matune, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: GRIFFIN and WHITE, Circuit Judges; MURPHY, District Judge. ^*

OPINION

GRIFFIN, Circuit Judge.

Petitioner David Ayers, an Ohio prisoner, appeals the district court order denying his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On appeal, Ayers argues that his Sixth Amendment right to counsel was violated when the state trial court allowed a jailhouse informant, Donald Hutchinson, to testify regarding incriminating statements made by Ayers in response to Hutchinson's questioning. The sole issue on appeal is whether the judgment of the Ohio Court of Appeals on this question was an unreasonable application of clearly established constitutional law as determined by the Supreme Court. Because the State “intentionally creat[ed] a situation likely to induce [Ayers] to make incriminating statements without the assistance of counsel,” United States v. Henry, 447 U.S. 264, 274, 100 S.Ct. 2183, 65 L.Ed.2d 115 (1980), we hold that Ayers' Sixth Amendment right to counsel was violated, and that the Ohio Court of Appeals unreasonably ruled to the contrary. Accordingly, we reverse the decision of the district court and remand the case to the district court with instructions to grant a conditional writ of habeas corpus, giving the State of Ohio 180 days within which to provide Ayers a new trial or, failing that, to release him.

I.

The Ohio Court of Appeals' lead opinion by Judge Corrigan sets forth the following relevant and accurate background facts:

The victim in this case, Dorothy Brown, was seventy-six years old at the time that she was murdered. The victim was a resident of the LaRonde apartment complex on Shaker Boulevard in Cleveland. The LaRonde apartment complex is a facility which was owned and managed by the Cuyahoga Metropolitan Housing Authority (CMHA) and which primarily serves elderly and disabled residents. The victim's body was discovered at approximately 2:45 p.m. on the afternoon of December 17, 1999 and showed signs of numerous serious injuries including a fractured skull, trauma to the brain, fractures of the face, a broken finger on each hand as well as multiple bruises and scrapes. The coroner's assistant who testified at trial stated that there were a total of 24-27 different wounds enumerated in the autopsy report. Several of these wounds were characterized as defensive wounds, most likely received by the victim while trying to fend off an attacker.

* * *

The appellant, [David Ayers,] although not elderly or disabled, was also a resident of the LaRonde apartments. The appellant was employed by CMHA as a special police officer (SPO), the function of which is to provide security at CMHA complexes. As part of his compensation for serving as an SPO, the appellant was permitted to live at the LaRonde apartments for a reduced rent of approximately $50 per month. This program was adopted by CMHA to provide additional security and law enforcement visibility at CMHA buildings.

It is not disputed that the appellant knew the victim fairly well as the result of providing security in the building and that he had been in her apartment on several occasions prior to December 17, 1999. It is also not disputed that in the early morning hours of December 17, 1999, at approximately 2:00 a.m., the appellant, accompanied by another resident of the complex, went to the victim's apartment for the purpose of assisting her from off of the floor where she had fallen and had been unable to get up.

This other resident was Sarah Harris, who the next afternoon discovered the victim's body when she went to check on the victim. At the time that Harris discovered the victim's body, the door to the victim's apartment was closed but not locked.

The Cleveland police were notified of the apparent homicide at 2:44 p.m. on December 17, 1999 and responded to the scene at approximately 3:13 p.m. At the time that law enforcement initially responded, the appellant was observed outside of the victim's unit on the fifth floor of the complex (the appellant lived on the first floor) with a group of other residents, as well as in the building lobby, in a highly agitated state. One of the officers who testified at trial stated that the appellant was “bawling” sporadically in the lobby of the building during the time period in which police initially responded to the scene and that his hands were extremely shaky while answering questions.

State v. Ayers, No. 79134, 2002 WL 31031675, at *1-2 (Ohio Ct.App.2002) (Corrigan, P.J., lead opinion) (paragraph numbers omitted).

Ayers was arrested on March 14, 2000, and indicted for Brown's murder on March 27, 2000. Id. at *12 (Kilbane, J., concurring in part and dissenting in part). After discovery delays, caused in significant part by the State's untimely disclosure of evidence, a jury was sworn on November 22, 2000. Id. at *13-16, *22 n. 27 (Kilbane, J., concurring in part and dissenting in part). The following Monday, November 27, the State disclosed for the first time that it intended to call Donald Hutchinson, an inmate at the Cuyahoga County Jail that had been assigned to the same pod as Ayers in late October of that year. Id. at *22 (Kilbane, J., concurring in part and dissenting in part). Hutchinson was incarcerated “on charges of passing bad checks and for a probation violation arising out of additional incidents of financial misconduct, theft and dishonesty.” Id. at *3 (Corrigan, P.J., lead opinion).

Hutchinson introduced himself to Ayers on his first day in jail during bible class. According to Hutchinson, Ayers spoke about his case from the very beginning of their association, and continued to speak with him about it frequently thereafter. Although Ayers first denied murdering Brown during several of their conversations, Hutchinson testified that Ayers' story changed during the week of, or just prior to, November 19, 2000. At that point, according to Hutchinson, Ayers “broke down” and confessed to murdering Brown. Hutchinson subsequently attempted to communicate with his attorney, and eventually contacted the Cleveland Police Department early on November 25, 2000.

At approximately 4:00 p.m. on Saturday, November 25, 2000, Hutchinson met with the two detectives assigned to investigate Brown's murder, Denise Kovach and Michael Cipo. In that meeting, Hutchinson conveyed the information he had obtained from Ayers, including Ayers' purported confession. Hutchinson further indicated that he would be willing to testify at Ayers' trial. Kovach and Cipo informed Hutchinson that the prosecutor would likely contact him and sent him back to his jail pod that he shared with Ayers and other inmates.

The detectives' report of the meeting specifically references Hutchinson's failure to include important details regarding the murder weapon and the amount of money taken from Brown's apartment. However, “within an hour or so” of speaking with the detectives and returning to the jail pod, Hutchinson directly questioned Ayers regarding both the murder weapon and the sum of money stolen. During this questioning that occurred after Hutchinson met with the police, Ayers allegedly confessed to using a small, black iron to kill the victim and stealing $700 from her. The next day, Hutchinson telephoned his wife and asked her to contact the police on his behalf. On Monday morning, November 27, the police placed Hutchinson in protective custody.

Ayers moved to suppress Hutchinson's testimony regarding Ayers' purported confession concerning the murder weapon and amount of money stolen. However, in a ruling from the bench, the state trial court denied that motion without an explanation.

At trial, the State also presented telephone records and a written statement from Ayers' friend, Kevin Smith, as evidence that Ayers had spoken with Smith regarding his knowledge of Brown's death prior to the discovery of her body. Smith's March 17, 2000, written statement indicated:

On Dec. 17, 1999 about 12-10 PM I got a call from David. I wasn't able to talk at that time because I think I was on the phone with another call. I told him I would call him later but he called me back. It was about 2 PM when he called. He said a resident just died and I asked how and he said he didn't know. I asked how again and he said someone must have went in there.

Ayers, 2002 WL 31031675, at *20 (Kilbane, J., concurring in part and dissenting in part) (internal quotation marks omitted). However, during the trial, Smith recanted portions of his written statement and testified that Detectives Cipo and Kovach pressured him into stating that Ayers phoned him regarding Brown's death prior to the discovery of her body. Indeed, although Smith's written statement indicates that Ayers called him on December 17, 1999, phone records show that both calls on that day originated from Smith's number. See Ayers, 2002 WL 31031675, at *2 (Corrigan, P.J., lead opinion) (“The phone records relating to appellant's home phone showed that he received two phone calls from a Kenneth Smith on December 17th.”) (emphasis added); see also id. at *28 (Kilbane, J., concurring in part and dissenting in part) (“[T]he phone records show that Smith initiated both calls.”).

Based largely on Hutchinson's testimony and Smith's written statement, the jury eventually ¹ returned a guilty verdict on all counts...