Apanovitch v. Houk

• Decision Date: 19 October 2006
• Docket Number: No. 94-3117.,94-3117.
• Citation: 466 F.3d 460
• Parties: Anthony APANOVITCH, Petitioner-Appellant, v. Marc C. HOUK, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

466 F.3d 460

Anthony APANOVITCH, Petitioner-Appellant, v. Marc C. HOUK, Warden, Respondent-Appellee.

No. 94-3117.

United States Court of Appeals, Sixth Circuit.

Argued: March 7, 2006.

Decided and Filed: October 19, 2006.

ARGUED: Dale A. Baich, Office of the Federal Public Defender for the District of Arizona, Phoenix, Arizona, for Appellant. Michael L. Collyer, Office of the Attorney General, Cleveland, Ohio, for Appellee. ON BRIEF: Dale A. Baich, Jon M. Sands, Office of the Federal Public Defender for the District of Arizona, Phoenix, Arizona, Mark R. DeVan, Berkman, Gordon, Murray & DeVan, Cleveland, Ohio, for Appellant. Michael L. Collyer, Office of the Attorney General, Cleveland, Ohio, for Appellee.

Before BOGGS, Chief Judge; and DAUGHTREY and MOORE, Circuit Judges.

OPINION

BOGGS, Chief Judge.

Mary Anne Flynn was found murdered and raped in her Cleveland home in August 1984. Four months later, a Cleveland jury convicted Anthony Apanovitch for aggravated murder, aggravated burglary, and two counts of rape, and the Cuyahoga County Court of Common Pleas sentenced him to death and to 45-75 years of imprisonment. Following a tortured procedural history involving parallel state and federal criminal appeals, and collateral civil litigation, Apanovitch now appeals from the district court's 1994 denial of his 1991 habeas petition, asking us to reverse the district court's denial of the writ or, at a minimum, to order the district court to conduct an evidentiary hearing. Specifically, the petitioner raises four basic claims on appeal: (1) that the state improperly failed to provide him with favorable exculpatory and impeachment evidence in violation of Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), and that these purported violations prevented him from presenting certain claims in his habeas petition filed in the district court pursuant to 28 U.S.C. § 2254; (2) that the state trial court improperly admitted the testimony of a prisoner who made one out-of-court statement to the prosecution but recanted that statement during voir dire; (3) that the trial court improperly admitted inflammatory and prejudicial hearsay by allowing certain witnesses to testify as to the victim's alleged fears of the defendant; and (4) that insufficient evidence exists to support his conviction. On cross-appeal, the State of Ohio requests that, should we remand the case, we grant an evidentiary hearing so that the district court could authorize a DNA test comparing swabs of bodily fluids that had been collected from the victim's body at the time of the murder investigation (which had allegedly been lost and later rediscovered in mid-1992) to the petitioner's own DNA. In light of the state's apparent failure to provide potentially exculpatory materials to Apanovitch prior to the filing of his petition, and of the untested nature of the DNA evidence, we reverse and remand the matter, noting that the district court retains the authority to conduct an evidentiary hearing should it deem it appropriate to do so. However, we affirm the district court's order with respect to the remaining issues raised on appeal, including the Brady claims that we do not find to be meritorious, the petitioner's challenges as to the admission of certain witnesses, and the insufficiency of evidence claim.

I

A

Mary Anne Flynn, a young nurse and midwife, was employed at Cleveland Metropolitan General Hospital. On August 23, 1984, Flynn visited her brother Martin, leaving to return home at about 9:30 p.m. At approximately 10 p.m. on the evening of her death, one of Flynn's neighbors heard her get out of her car and walk to the back door of the duplex she owned. Other neighbors heard her front door bang shut around that time. Around midnight, other neighbors heard a loud bang or thud from inside her house.

The following day, Christine Schenk, Flynn's co-worker and friend, became concerned when Flynn did not report to work. After unsuccessfully trying to contact her, Schenk called Flynn's brother, and together they gained access to Flynn's apartment through the tenants' side of the basement of the duplex Flynn owned. They found the front door locked and chained from the inside, but a window in the basement appeared to have been forcibly opened, and one of the window sills was missing. In the second-floor bedroom, they discovered Flynn's naked and battered corpse lying face-down on her mattress with her hands tied behind her back, with one end of what appeared to be a rolled-up bedsheet tied around her neck and the other end tied to the headboard.

The cause of death was found to be asphyxia by cervical compression; in lay terms, she was strangled to death. Spermatozoa and other bodily fluids were found in her mouth and vagina. There were wood chips and slivers from the basement window sill in the bedroom and on her body, and a laceration on the back of her neck contained slivers of wood from the same window sill. The coroner later concluded she had died sometime between midnight and 6 a.m.

But police found little physical evidence of the perpetrator. They found no bodily material under Flynn's fingernails. The coroner discovered a small number of hairs, but only one of them was inconsistent with the victim's hair. The only blood at the scene belonged to Flynn, and was on the bed and the corpse. The dusty basement floor did not reveal any footprints. The police identified a number of latent fingerprints, but none of them belonged to Anthony Apanovitch, the man who became the department's chief suspect. In fact, the only pieces of physical evidence from the crime scene that were even potentially linked to the perpetrator were the bodily fluids found in Flynn's corpse, which had been emitted from a person who secretes blood type A. The police discovered that Apanovitch secretes blood type A; they also discovered, but did not reveal, that the victim also secreted blood type A.

B

The day after discovering Flynn's corpse, police found her checkbook on the kitchen table, and, inter alia, it contained a receipt for house painting made out to Anthony Apanovitch. The checkbook also contained two cancelled checks indicating that Flynn had paid Apanovitch for house painting in the past. During their investigation, police heard from several neighbors and friends that Flynn had expressed to them her fear of a "painter" in the weeks and months preceding her murder. Some of Flynn's friends stated that she had told them that her fear of the "painter" had grown so severe that she had hired a realtor to begin searching for a new home elsewhere in Cleveland; in fact, one witness later testified that Flynn had told her about her plans to move at lunch on the day of her murder. Police soon came to suspect Apanovitch.

Police also learned that Apanovitch had been painting houses across the street from Flynn's home in addition to the work he had performed on her house, and that he had made numerous unrequited romantic advances toward her. Apanovitch's co-worker Dawson Goetchius supposedly told police that Apanovitch had told him that Flynn was a "real fox" and that he would "like to get in her pants," though, during trial, Goetchius denied having said anything of the sort. Rather, Goetchius testified that Apanovitch had approached Flynn in her driveway on the afternoon before her murder to discuss painting Flynn's basement window sills, but his words relating Apanovitch's romantic interest in the victim were revealed to the jury. Meanwhile, police came to believe that the unusual layout of Flynn's duplex required prior familiarity with the house in order to break into her part of the duplex through the basement, a knowledge that Apanovitch undoubtedly possessed.

Four days after discovering Flynn's corpse, detectives arrested Apanovitch. He did not attempt to flee and, once in custody, he waived his Miranda rights. He admitted that he knew the victim, that he had done some painting at her home, and that he had spoken with her on the afternoon before she was murdered. Apanovitch had what seemed to be a new scratch on his face, and he stated that he had received it on the night of August 23. But his attempted explanations varied over time. While all of his accounts involved a man outside the Comet Bar who had experienced car trouble, he variously told investigators that (1) he had been involved in a knife fight, but was cut by flying glass, (2) a bottle fell and broke, and that the glass had scratched his face, (3) the hood of the unknown man's car had scratched his face, (4) he had been scratched by backlash from the bottle, and (5) he had been in a fight. A physician working for the prosecution examined the scratch and later testified that it was consistent with injuries caused by broken glass drawn over the skin, by the tip of a knife, or, allegedly more likely, by fingernails.

Police demanded an alibi. Apanovitch responded that he was unable to recall precisely when and how long he had spent in each of the several drinking establishments that he had patronized that evening. Moreover, he was unable to account for his entire evening: witnesses did not confirm his presence at any of the bars for the period running from around 9:15-10:00 p.m. until 12:45 a.m. that night. Later, at trial, one witness recalled that he had seen Apanovitch at one bar (within walking distance of Flynn's home) around 11-11:15 p.m., but he had failed to mention this to police investigators. Worse, from the investigators' perspective, Apanovitch approached waiters at the bars after his release from jail and asked them to recall his presence in their bars that night at particular times.

When asked to provide hair and blood samples, he voluntarily provided them. Police released Apanovitch from jail two days afterwards. Two weeks later, police asked him to return so that medical personnel could examine his penis for bite marks; he complied, and no marks were found. The police could...