Otte v. Houk

• Decision Date: 20 September 2011
• Docket Number: No. 08–3247.,08–3247.
• Citation: 654 F.3d 594
• Parties: Gary OTTE, Petitioner–Appellant,v.Mark C. HOUK, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

654 F.3d 594

Gary OTTE, Petitioner–Appellant,

v.Mark C. HOUK, Warden, Respondent–Appellee.

No. 08–3247.

United States Court of Appeals, Sixth Circuit.

Argued: Jan. 13, 2011.Decided and Filed: Aug. 12, 2011.Rehearing and Rehearing En Banc Denied Sept. 20, 2011.*

ARGUED: Joseph E. Wilhelm, Federal Public Defender's Office, Cleveland, Ohio, for Appellant. Morgan Arnett Linn, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Joseph E. Wilhelm, Federal Public Defender's Office, Cleveland, Ohio, Jennifer Ann Prillo, Ohio Public Defender's Office, Columbus, Ohio, for Appellant. Sarah L. Leatherman, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.Before: BOGGS, COLE, and ROGERS, Circuit Judges.BOGGS, J., delivered the opinion of the court, in which ROGERS, J., joined. COLE, J. (pp. 607–08), delivered a separate dissenting opinion.

OPINION

BOGGS, Circuit Judge.

Gary Otte is an Ohio prisoner on death row. He appeals the district court's denial of his petition for a writ of habeas corpus, which was filed pursuant to 28 U.S.C. § 2254. A certificate of appealability was issued for three claims: 1) whether Otte's waiver of his right to a jury trial was voluntary, knowing, and intelligent; 2) whether Otte's counsel provided ineffective assistance at the penalty phase of his case; and 3) whether Otte's confession should have been suppressed because the waiver of his rights under Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966), was invalid. We affirm the district court's decision to deny the petition.

I

In September 1992, a three-judge panel found Otte guilty of the murders of Sharon Kostura and Robert Wasikowski. The Ohio Supreme Court summarized the facts:

On February 11, 1992, Otte stole his grandfather's red 1962 Chevrolet Impala and .22 revolver and left Terre Haute, Indiana. He also stole two credit cards belonging to his uncle and aunt. Otte arrived in Parma, Ohio, the next day and tried to use the stolen cards in local stores, but they were confiscated.

Otte next drove to see his friend Mike Carroll (“Carroll”). Carroll lived with his fiancee and Jerry “J.J.” Cline (“J.J.”) in the Pleasant Lake apartment complex in Parma.

After that Otte drove to Gypsy and Rob's, a Cleveland bar, where he found J.J. Otte asked J.J. “if he was still robbing people.” J.J. said he planned to “hit” two people at Pleasant Lake. One was a woman in her thirties with a Visa gold card; she lived alone “one building over” from J.J. and Carroll. The other was “an old man that lives diagonally from [Carroll's] apartment that is a drunk and has lots of money.”

That evening, Otte returned to Pleasant Lake alone. He went to Carroll's apartment, but nobody was home. He then knocked on the door of Mary Ann Campangna (“Campangna”), who lived next to Carroll and across the hall from Robert Wasikowski. Otte claimed his car had overheated, said he was looking for Carroll, and asked for oil. Campangna told him she didn't have any, and Otte left.

Otte saw Wasikowski drive into the parking lot and thought that “that was the man” J.J. had described. Otte came out and asked Wasikowski for some oil, telling him the same story about his car overheating. As they spoke, Otte noticed that Wasikowski had been drinking. Wasikowski drove Otte to a gas station to buy oil.

When they returned, Otte asked to use Wasikowski's phone; after some hesitation, Wasikowski agreed. Otte followed Wasikowski into his apartment. Looking through her peephole, Campangna found this “very strange,” so she continued to watch Wasikowski's door. Six or seven minutes later, Campangna heard “a very loud crack, cracking sound.”

Inside the apartment, Otte pretended to make a phone call, then “tried to stall for time.” Finally, Wasikowski asked Otte to leave. Otte went to the door, opened it, then slammed it shut and drew a gun. Wasikowski offered Otte $10 from his pocket. Otte pulled the trigger anyway, but the gun wouldn't fire. Wasikowski asked, “[I]t isn't loaded, is it[?]” Otte then fired the gun at Wasikowski's head. This time, it went off. Wasikowski fell to the floor, gasping and begging for help. Otte found this “the most horrible sight that I have ever seen”; nonetheless, he turned up the volume on the TV and went through Wasikowski's pants pocket, took out his wallet and took his cash, about $413. Otte searched for more money, but found only some fifty-cent pieces in the bedroom. He considered shooting himself, “but something told me not to,” so he stole the fifty-cent pieces and left through the sliding glass patio door.

Otte then returned to Gypsy and Rob's, where he paid an $80 debt, played pool, drank, and took drugs. At 2:30 a.m., he left the bar, but continued to “party” until 10:00 or 10:30 a.m., when he checked into a hotel and slept until 5:00 p.m.

When Wasikowski failed to report for work on February 13, his employer called the Parma police. An officer entered the apartment and found Wasikowski dead. Robert Challener, the chief deputy county coroner, later performed an autopsy. He found that Wasikowski died from a gunshot to the head fired from less than two feet away.

Meanwhile, Parma police investigated the murder. Capt. Joseph Bistricky (“Bistricky”) interviewed Mary Ann Campangna, who described the man she had seen as “a white male, early 20's, six feet, thin to medium build, with blondish-brown hair, and a mustache.” She suggested that Mike Carroll might know him.

Around 1:30 p.m., Bistricky interviewed Carroll, who said he knew the person Campangna had seen; his name was Gary, he was from Indiana, and he was driving his grandfather's car, a red 1962 Impala in good condition. Carroll's description of “Gary” matched Campangna's. Carroll promised to call police if he found out more about Gary's identity or location. Later that day Carroll told the police Gary would be at Gypsy and Rob's around 7:30 p.m.

On the evening of February 13, Otte went back to Pleasant Lake to rob Sharon Kostura. Otte knocked on her door; when she answered, he drew a .22 revolver and shoved his way in. He closed and locked the door. Kostura screamed and Otte shot her in the head. He stole about $45 from her purse, took her car keys and checkbook, and left through the patio door. Police later found Otte's fingerprint on that door.

After dinner, Otte returned to Gypsy and Rob's. He left with Carroll, J.J., and someone known as “Buster.” They “smoked dope” in the Impala, then visited someone called “Patty.” After leaving Patty's house, Otte dropped off J.J. and Buster near the bar.

Otte then drove past several police officers near Gypsy and Rob's. Because Carroll had told Capt. Bistricky that Otte would be at the bar that night, the officers were waiting for Otte. They pulled him over and ordered him to shut off the engine and throw out the keys. Carroll told the officers, “The guns are in the trunk.” Officers opened the trunk and found a .22 caliber revolver and a .25 caliber semi-automatic pistol. The officers began an inventory search of the car but because of bad weather and a gathering crowd, Bistricky ordered the car towed, and the search was completed at the police garage.

In the glove compartment, police found Kostura's checkbook, a set of Hyundai car keys, and a box of .22 caliber live shells. In the passenger compartment, they found ammunition for the .25 caliber gun and a pillow with a red stain. A detective documented the items found on an inventory form.

Because Kostura had not reported her checkbook stolen, officers went to her apartment, where they found her still alive. Kostura was taken to the hospital and lived eight days, until February 21. Dr. Challener found that the gunshot wound to her head killed her.

Det. John Bomba interrogated Otte within an hour of his arrest on February 13. Otte denied going to the Pleasant Lake Apartments on February 12 or 13. He claimed he had no idea how Kostura's checkbook got into the car and “never even saw the guns until the police said they were in the trunk.”

On the afternoon of February 14, Det. Robert DeSimone interrogated Otte. Otte confessed to shooting and robbing Wasikowski and Kostura. On February 16, Otte signed a confession. On February 20, Otte asked to speak with DeSimone; he corrected part of his February 16 statement and answered questions.

State v. Otte, 74 Ohio St.3d 555, 660 N.E.2d 711, 715–16 (1996).

Otte was indicted for aggravated murder as to each victim. He filed a motion to suppress his confession, but it was denied after a hearing. After waiving his right to a jury trial, Otte was tried and convicted by a three-judge panel. At the penalty phase, Otte presented Dr. Sandra McPherson, who testified about Otte's childhood troubles fitting in, his depression and early drug use, as well as his success within very structured environments. Otte's parents also gave testimony about their son's troubles growing up, and Otte himself gave an unsworn statement. After considering this mitigation evidence, the panel nonetheless imposed a death sentence.

Otte filed a timely direct appeal to the Eighth District Court of Appeals, which affirmed the trial court's convictions and death sentence. State v. Otte, No. 64617, 1994 WL 590556 (Ohio Ct.App. Oct. 27, 1994). Otte appealed that decision to the Ohio Supreme Court, which also affirmed. Otte, 660 N.E.2d 711. He next filed a petition for a writ of certiorari with the United States Supreme Court, but it was denied in October 1996. Otte v. Ohio, 519 U.S. 836, 117 S.Ct. 109, 136 L.Ed.2d 62 (1996). While his appeals were pending, Otte also sought post-conviction relief in the Ohio trial court, in which he raised all of the claims now before us. The post-conviction court denied relief and Otte appealed in July 1999. The Eighth District Court of Appeals eventually remanded in part for the trial court to conduct an evidentiary hearing on some of Otte's claims. State v. Otte, No. 76726, 2001 WL 69139 (Ohio...