779 F.3d 366 (6th Cir. 2015), 11-5707, Wheeler v. Simpson

Docket Nº:11-5707
Citation:779 F.3d 366
Opinion Judge:MERRITT, Circuit Judge.
Party Name:ROGER L. WHEELER, Petitioner-Appellant, v. THOMAS L. SIMPSON, Warden, Respondent-Appellee
Attorney:Joseph T. Flood, SHELDON, FLOOD & HAYWOOD, PLC, Fairfax, Virginia, for Appellant. David W. Barr, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee. Joseph T. Flood, SHELDON, FLOOD & HAYWOOD, PLC, Fairfax, Virginia, David M. Barron, KENTUCKY DEPARTMENT OF PUBLIC ADVOCACY, ...
Judge Panel:Before: MERRITT, GRIFFIN, and WHITE, Circuit Judges. MERRITT, J., delivered the opinion of the court in which WHITE, J., joined. GRIFFIN, J., delivered a separate dissenting opinion. GRIFFIN, Circuit Judge, dissenting.
Case Date:February 20, 2015
Court:United States Courts of Appeals, Court of Appeals for the Sixth Circuit
SUMMARY

In 1997, Louisville police discovered the bodies of two people in their apartment. The male victim had nine stab wounds. The pregnant female victim died as a result of manual strangulation and was stabbed after she was dead. Wheeler, ultimately convicted of the murders, changed his story several times. He eventually admitted being in the apartment on that night, after the male victim was stabbed,... (see full summary)

 
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779 F.3d 366 (6th Cir. 2015)

ROGER L. WHEELER, Petitioner-Appellant,

v.

THOMAS L. SIMPSON, Warden, Respondent-Appellee

No. 11-5707

United States Court of Appeals, Sixth Circuit

February 20, 2015

Argued October 1, 2014

Petition for certiorari filed at, 05/15/2015

Petition for certiorari filed at, 06/18/2015

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[Copyrighted Material Omitted]

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Appeal from the United States District Court for the Western District of Kentucky at Louisville. No. 3:09-cv-00336--Joseph H. McKinley, Jr., Chief District Judge.

ARGUED:

Joseph T. Flood, SHELDON, FLOOD & HAYWOOD, PLC, Fairfax, Virginia, for Appellant.

David W. Barr, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.

ON BRIEF:

Joseph T. Flood, SHELDON, FLOOD & HAYWOOD, PLC, Fairfax, Virginia, David M. Barron, KENTUCKY DEPARTMENT OF PUBLIC ADVOCACY, Frankfort, Kentucky, for Appellant.

David W. Barr, OFFICE OF THE KENTUCKY ATTORNEY GENERAL, Frankfort, Kentucky, for Appellee.

Before: MERRITT, GRIFFIN, and WHITE, Circuit Judges. MERRITT, J., delivered the opinion of the court in which WHITE, J., joined. GRIFFIN, J., delivered a separate dissenting opinion.

OPINION

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MERRITT, Circuit Judge.

This death penalty case from the Kentucky courts arises from the brutal murder of two victims in October of 1997. For reasons explained below, we conclude that a writ of habeas corpus must be issued as to the death sentence because the Kentucky trial court erroneously struck from the jury a Mr. Kovatch, an eligible juror who may have been in favor of sparing the Petitioner's life. The state trial court, after a full examination of Mr. Kovatch at voir dire, found him not to be " problematic" as a juror but one who " could consider the entire range" of penalties. Then the next day the trial court excused him because the judge mistakenly remembered him saying he would not consider the death penalty. The issue is one of procedural fairness in administering the death penalty. As the Supreme Court has observed, to permit the for-cause exclusion of an otherwise-eligible juror " unnecessarily narrows the cross section of venire

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members" required under the Sixth Amendment and " 'stack[s] the deck against the petitioner. To execute [such a] death sentence would deprive him of his life without due process of law.'" Gray v. Mississippi, 481 U.S. 648, 658-59, 107 S.Ct. 2045, 95 L.Ed.2d 622 (1987) (quoting Witherspoon v. Illinois, 391 U.S. 510, 523, 88 S.Ct. 1770, 20 L.Ed.2d 776 (1968)).

I. Factual and Procedural History

In 2001, a Kentucky state jury sentenced Roger Wheeler to death after convicting him of two counts of intentional murder.1 On direct appeal, the Supreme Court of Kentucky affirmed Wheeler's convictions and sentence, making the following findings of fact:

On October 2, 1997, Louisville police discovered the bodies of [Nigel Malone and Nairobi Warfield] in the apartment the victims shared. The male victim was found in a hallway near the bathroom. He had suffered nine stab wounds. Two stab wounds to the chest were considered the fatal wounds by the medical examiner. She described the crime scene as having blood spatters on the floor, walls, furniture and appliances. The medical examiner believed that the main struggle occurred in the kitchen and progressed to the hallway where the body of the male victim was found.

The female victim died as a result of manual strangulation. The medical examiner testified that she believed the struggle between the female and her assailant occurred in the bedroom where she was found. The female victim had multiple abrasions on the left side of her neck and lacerations with a bruise on her mouth and several bruises on her lips. Her body was found in a seated position, leaning against a bedroom wall. She was covered with a blanket or quilt and a scissors was protruding from her neck. The medical testimony determined that she had been stabbed with the scissors after she was already dead. During the autopsy, the medical examiner discovered that the female victim was pregnant. There was blood on the floors and walls in nearly every room in the apartment. Numerous blood samples were also collected at the scene and were subject to laboratory testing. No fingerprints were found on the scissors. Wheeler denied killing the two victims but he changed his story on several occasions. Originally, he denied ever being inside of the apartment on the night the murders occurred but then later admitted being in the apartment on that night. He claimed that Nigel Malone was already stabbed, but that he did not see Nairobi Warfield. He also asserts that the assailant was already inside the apartment and he and that person fought which was why he was wounded.

Wheeler v. Commonwealth, 121 S.W.3d 173, 178 (Ky. 2003) ( Wheeler I ). The Kentucky state courts subsequently denied Wheeler's petition for post-conviction relief. See Wheeler v. Commonwealth, No. 2006-SC-000901-MR, 2008 WL 5051579, at *11 (Ky. Nov. 26, 2008) ( Wheeler II ).

Wheeler filed the instant petition for a writ of habeas corpus in May of 2009. Overruling Wheeler's timely objections, the district court adopted the magistrate judge's report and granted summary judgment to the State on all claims. We ultimately certified twelve claims for appellate review. Of these claims, six concern

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Wheeler's conviction; the rest deal with the jury's imposition of the death penalty.

II. The Exclusion of Mr. Kovatch

The Kentucky trial judge struck Juror Kovatch from the jury even though he expressly stated that he could consider the full range of punishment -- including the death penalty -- after earlier expressing reservations and uncertainty about its wisdom. In reviewing his exclusion, the Supreme Court of Kentucky neither provided any details about Mr. Kovatch nor referred to Supreme Court case law on the subject. Instead, it simply stated that the trial judge " appropriately struck for cause those jurors that could not impose the death penalty." Wheeler I, 121 S.W.3d at 179.

The Kentucky trial judge conducted the initial voir dire of Mr. Kovatch before the lawyers examined him. She inquired whether he could consider the entire range of penalties, specifically asking about " [twenty] years imprisonment" and " the death penalty." Voir Dire Tr. at 1. He replied he " probably" could consider the death penalty " after some deep reflection." Id. Mr. Kovatch further said that he had not " formed an opinion one way or the other" regarding the death penalty and noted that there were " arguments on both sides of . . . it." Id. at 2. Furthermore, he did not believe he had " any moral, religious, spiritual or personal beliefs that would keep [him] from considering the death penalty." Id.

The prosecutor's voir dire questioning explained that if the jury found the defendant guilty of two homicides, " the Judge, at that point, would give [the jury] a penalty range of [twenty] years all the way up to the death penalty and all the options in between." Id. at 6. Mr. Kovatch replied that he had never " been confronted with that situation" before and it was " difficult for [him] to judge how [he] would . . . act." Id. The prosecutor then asked Mr. Kovatch if he was saying he was " not absolutely certain whether [he] could realistically consider [the death penalty]. . . ." Id. at 7 (emphasis added). Mr. Kovatch acknowledged he was not " absolutely certain" by saying, " I think, I think that would be the most accurate way I could answer your question." Id.

Soon after, upon examination by defense counsel, Mr. Kovatch described the death penalty as " a very philosophical topic" and " a very difficult one." Id. at 8. He discussed getting older, understanding " a lot more things about values and [] life itself." Id. He described himself as " a bit more contemplative on the issue of taking a life and . . . whether or not we have the right to take that life." Id. He was then asked whether he felt he could " consider all of the options presented." Id. at 9. He responded, " I believe I can, sir." Id.

After the trial judge excused the jurors for the evening, the prosecution moved to excuse Mr. Kovatch for cause, claiming he gave " two inconsistent answers" because " he could not say whether he could realistically consider the death penalty or not." Id. at 9. The prosecutor suggested that the " gravamen of his testimony" provided grounds to strike him for cause under Gall v. Parker, 231 F.3d 265 (6th Cir. 2000), as " a juror who can't say if he can give the death penalty." Voir Dire Tr. at 9-10.

Responding to the prosecution's motion, defense counsel highlighted Mr. Kovatch's answers to the judge indicating his ability to consider " all the penalty options." Counsel said he was " a man who has contemplated this issue" who " wants to be . . . very honest and candid with the Court" despite having " some reservations about the death penalty." Id. The defense further argued (correctly) that nothing in the case law disqualifies a juror " because they

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. . . question some aspects of the death penalty or they consider it to be a serious matter, or they consider it to be something that . . . calls into question[] . . . issues of . . . life and how important it is." Id.

Responding immediately to the prosecutor's motion, the trial judge expressed her impression that Mr. Kovatch was " someone who would take this job very seriously and who had serious reservations about the death penalty." Id. at 12. She believed he was someone who " could consider the entire range" after her questioning and " didn't even see him as problematic when [she] got through with him." Id. The trial judge then took the motion...

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