Cauthern v. Colson

• Decision Date: 13 December 2013
• Docket Number: No. 10–5759.,10–5759.
• Citation: 736 F.3d 465
• Parties: Ronald Michael CAUTHERN, Petitioner–Appellant, v. Roland COLSON, Warden, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

736 F.3d 465

Ronald Michael CAUTHERN, Petitioner–Appellant,

v.Roland COLSON, Warden, Respondent–Appellee.

No. 10–5759.

United States Court of Appeals, Sixth Circuit.

Argued: April 30, 2013.

Decided and Filed: Nov. 14, 2013.

Rehearing and Rehearing En Banc Denied Dec. 13, 2013.^*

ARGUED:Laurence E. Komp, Manchester, Missouri, for Appellant. Andrew Hamilton Smith, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellee. ON BRIEF:Laurence E. Komp, Manchester, Missouri, Paul J. Bruno, Nashville, Tennessee, for Appellant. Andrew Hamilton Smith, Office of the Tennessee Attorney General, Nashville, Tennessee, for Appellee.

Michael J. Benza, Case Western Reserve University School of Law, Cleveland, Ohio, for Amicus Curiae.

Before COLE, CLAY, and ROGERS, Circuit Judges.

CLAY, J., delivered the opinion of the court, in which COLE, J., joined., and ROGERS, J., joined in part. ROGERS, J. (pp. 34–38), delivered a separate opinion dissenting from Parts III. B. and VI. B. 1. of the majority's opinion.

OPINION

CLAY, Circuit Judge.

Petitioner, a convicted murderer and rapist sentenced to death in Tennessee, sought a writ of habeas corpus pursuant to 28 U.S.C. § 2254(d). The district court denied his petition in its entirety, but granted Petitioner a certificate of appealability on one claim—that the state improperly excluded mitigation evidence at his resentencing hearing. This Court expanded the certificate to cover four additional claims. Petitioner now appeals on those issues, which are the prosecutor's misconduct in rebuttal at Petitioner's resentencing; ineffective assistance of counsel at his resentencing; suppression of favorable, material evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963); improper review of the exclusion of mitigation evidence at the resentencing; and unconstitutional vagueness in the Tennessee aggravating factor applied at resentencing.

For the reasons set forth in this opinion, we AFFIRM the district court with respect to all of Petitioner's claims except for his claims of prosecutorial misconduct and ineffective assistance of counsel, REVERSE the district court with respect to those two claims and GRANT a conditional writ of habeas corpus.

BACKGROUND

I. Factual Background ¹

Captain Patrick Smith and his wife, Captain Rosemary Smith (“Patrick” and “Rosemary”) were officers in the United States Army Nurse Corps, stationed at Fort Campbell, Kentucky and living at 352 Hampshire Drive in Clarksville, Tennessee. On January 9, 1987, when neither Patrick nor Rosemary reported for duty, Major Kathleen Campbell and a sergeant drove to the Smiths' home, and arrived there at about 11:00 a.m. They noticed that both of the Smiths' cars were in the garage, and the glass on the backdoor had been broken from the outside. Major Campbell went to a neighbor's house and phoned the police.

When the police arrived, they found evidence of forcible entry, and the house ransacked. They also found the Smiths dead in separate bedrooms, each apparently killed by strangulation. Officer John Nichols of the Clarksville Police Department (“CPD”) was one of the officers on the scene. Ronnie M. Cauthern (“Petitioner”), and Brett Patterson (“Patterson”) were ultimately arrested for the murders, along with Eric Barbee (“Barbee”), who was a friend of Patterson's, though Barbee was never implicated in the murders. Patterson and Cauthern were convicted of the murders, as well as other crimes related to the incident. The Tennessee Court of Criminal Appeals entered the following findings of fact: ²

[T]he body of Patrick Smith lying face down on the bed in the master bedroom, facing 90 degrees counter clockwise from his sleeping position, and wrapped in the top sheet. He had been strangled to death, apparently with a length of 880 military cord. The bed was broken and tilted indicating a violent struggle had taken place.

Cauthern v. State, 145 S.W.3d 571, 580 (Tenn.Crim.App.2004) (quoting State v. Cauthern, 778 S.W.2d 39, 40 (Tenn.1989)).

The body of Rosemary Smith was discovered in another bedroom; her underclothes were next to her body and her nightgown was in the corner of the room. A scarf had been tied around her neck and knotted, with a small vase inserted between the nape of the neck and the knot, creating a tourniquet ... Credit cards, electronic gear and a videocassette recorder appeared to be missing from the house. Police found costume jewelry in the house, but no jewelry of value.

Id. (quoting State v. Cauthern, 967 S.W.2d 726, 730 (Tenn.1998)).

The police found the telephone line had been cut near its entry into the outside wall of the house. A shoe print was found on the back door that matched Patterson's shoe. In a statement that he gave police he admitted kicking the back door once or twice, but said it would not open so they obtained a hammer and broke the pane of glass nearest the door knob to gain entry. The house was ransacked, chest of drawers open, luggage and clothing scattered about. In the master bedroom, the police found a piece of paper upon which was written defendant Cauthern's name, address and telephone number. Rosemary Smith's sister testified she was familiar with both her sister's and her brother-in-law's handwriting and the information about Cauthern was not written by either of them. The cumulative evidence [established] that defendant and the Smiths had been acquainted for approximately a year at the time of the murders, that he had performed some work on Patrick's Mercedes and perhaps some additional work at their home, although he said in one of his statements that he had never been inside their home until the evening of 8 January 1987.

Id. (quoting Cauthern, 778 S.W.2d at 40.)

James Phillip Andrew testified [at both trials] that he was with the defendant, Ronnie Cauthern, and Brett Patterson shortly after the offenses. While watching television, they all saw an account of the Smiths' murders in which a reward was offered for information. Cauthern told Andrew that he had worked for the Smiths in the past and that he broke into their home and made the woman get into the closet, while he and Patterson strangled the man. Cauthern told Andrew that he raped the woman once and that he had stolen a wedding ring, a VCR, and some credit cards....

Joe Denning, Andrew's roommate, also testified that Ronnie Cauthern admitted his role in the killings. Cauthern told Denning that he had cut the telephone lines to the house, had broken in through the back door, had shined flashlights in the victims' faces in order to wake them, and had placed Rosemary Smith in a closet. He admitted to Denning that he had raped the woman and poured wine coolers over her, and then attempted to kill her. He said he tried to strangle the woman by tying a scarf around her neck, but did not have the strength to kill her, so he used the vase to create a tourniquet....

Cauthern's former girlfriend, Jackie Pigue, testified that on Thursday night, January 8, 1987, Cauthern and Patterson were “solemn” and “quiet.” The next day Cauthern gave her a watch and a wedding ring. He told her that someone owed him money and he was holding the items as collateral. When she later saw a news report regarding the murders and Cauthern's arrest, she went to the police and gave them the jewelry.

Cauthern and Patterson were arrested on January 12, 1987. Search warrants were obtained for Cauthern's car and Patterson's house. Among the items found were the victims' credit cards, identification cards, receipts, checks and two key rings containing keys which unlocked the Smiths' home and automobiles. The police also found two ski masks, several handguns, a roll of 880 military cord, and Patrick Smith's jacket.

Initially, Cauthern gave several statements to the police, all of which were admitted into evidence at the sentencing hearing. In the first statement, he denied knowing the Smiths or anything about the murders. In a later statement, which was recorded and transcribed, Cauthern admitted that he was in the Smiths' home, but denied that he had raped or murdered anyone. Claiming that he and Mrs. Smith were having an affair, he contended that she had called and invited him to come to the Smith house and enter through the back door. He said that both he and Patterson had consensual sex with Mrs. Smith, and he denied that he participated in the murders, raped the victim, or removed any items from the house.

[At the 1995 resentencing trial], Cauthern testified that he was nineteen years old at the time of the murders. He stated that he never knew his birth father and saw his birth mother approximately three times during his entire life. His birth mother died, and he was adopted by his maternal grandmother and step-grandfather who moved to Clarksville in 1973. The defendant attended Northeast High School, but dropped out to care for his grandmother who had Parkinson's disease, so that his step-grandfather could continue to work. He was married at the age of eighteen and at the time of the hearing, had an eight-year-old son. Although he had divorced his son's mother, he continued to see his son every three to five months. Since his incarceration he had remarried. His wife, who lived in Canada, was not at the hearing. He testified that he helps his parents by writing letters for them.

Cauthern also said he had completed the Graduate Equivalency Examination and a paralegal course since being incarcerated, and he serves as a teacher's aide to the unit prison teacher. He has achieved “A” status at Riverbend Maximum Security Institution for privilege purposes, which is the highest status available for a prisoner. He introduced letters of appreciation from a correctional officer and the prison teacher. A Unit Review Panel Hearing form containing positive comments concerning his behavior and attitude was also introduced. He makes extra money by drawing greeting cards and selling them to other...