Decision Date11 March 1998
Citation209 F.3d 486
Parties(6th Cir. 2000) JOHN W. BYRD, JR.,TERRY L. COLLINS, WARDEN, Argued:
CourtU.S. Court of Appeals — Sixth Circuit

Appeal from the United States District Court for the Southern District of Ohio at Columbus. No. 94-00167--James L. Graham, District Judge. [Copyrighted Material Omitted]

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[Copyrighted Material Omitted] Randall L. Porter, Richard J. Vickers (argued and briefed), Public Defender's Office, Ohio Public Defender Commission, Steven M. Brown (briefed), Columbus, Ohio, for Petitioner-Appellant.

Stuart A. Cole (argued), Assistant Attorney General, Columbus, Ohio, Claude N. Crowe, Office of the Attorney General, Cincinnati, Ohio, Stuart W. Harris (briefed), Office of the Attorney General, Capital Crimes Section, Columbus, Ohio, for Respondent-Appellee.

Before: Jones, Suhrheinrich, and Batchelder, Circuit Judges.

SUHRHEINRICH, J., delivered the opinion of the court, in which BATCHELDER, J., joined. JONES, J. (pp. 542-52), delivered a separate dissenting opinion.


Suhrheinrich, Circuit Judge.

In August 1983, the Court of Common Pleas in Hamilton County, Ohio, sentenced Petitioner, John W. Byrd, Jr., to death for the aggravated murder of Monte Tewksbury. The Ohio state courts repeatedly rejected Petitioner's claims for relief. In March 1994, only days before his scheduled execution, Petitioner filed his first petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The U.S. District Court for the Southern District of Ohio denied the petition. We now AFFIRM that denial.

I. Background
A. Facts

On the evening of April 17, 1983, Monte B. Tewksbury was working alone as the night clerk at the King Kwik convenience store at 9870 Pippin Road in Hamilton County, Ohio. Monte was married and was the father of three children.

At approximately 11:00 p.m., two robbers entered the store in masks; one of them carried a bowie knife with a five-inch blade. The robbers removed all of $133.97 from the cash register. In addition, they took Monte's Pulsar watch, wedding ring, and his wallet which contained cash, credit cards, and an automobile registration slip. Then, as Monte stood with his hands raised and his back to the robbers, Petitioner plunged his bowie knife to the hilt in Monte's side, resulting in a puncture wound to the liver that caused massive internal bleeding. The two robbers ripped the inside telephone out of the wall and fled. At approximately 11:10 p.m., Robert Shephard was driving northbound on Pippin Road. He observed two men run from the King Kwik and enter a large red van parked at the corner of Pippin and Berthbrook. The van then drove off.

Although severely injured, Monte managed to exit the store and get to the outside telephone. He called his wife, Sharon Tewksbury, told her he had been robbed and hurt, and that she should call the police and an ambulance. At that time, Cecil Conley, a prospective customer, arrived at the King Kwik. Conley found Monte standing outside the building and leaning against the wall next to the telephone. Monte was bleeding from his side. Conley helped Monte into the store, went back to the telephone which was still off the hook, and spoke briefly to Sharon. Conley also advised Sharon to call an ambulance, and he himself called the police. Monte told Conley "I'm going to die," and that he had been robbed and cut with a knife. Monte described the robbers as two white men wearing stocking masks.

Sharon arrived at the scene and held her dying husband in her arms as he repeated his statements. Police and medical help then came, and Monte was transported to a hospital. While en route, Monte made several statements to the effect that he did not understand why he had been stabbed, because he had been cooperative and had given the robbers everything they requested. Monte also made a statement to the effect of "Thank God I didn't see it coming," which supports the conclusion that his back was to his assailants when he was stabbed. Almost immediately after he was taken to the emergency room, Monte's heart stopped. Despite heroic efforts to save his life, Monte died at 1:15 a.m., April 18, 1983, from exsanguination resulting from his stab wound.

That night, a short time after the King Kwik robbery, Jim Henneberry, a clerk at a nearby U-Totem store, was standing at the cash register. A customer, Dennis Nitz, was playing a video game near the front door when two robbers entered the store wearing masks. Henneberry realized what was occurring and fled to a room in the rear of the store. One of the robbers chased after Henneberry with a knife. The robber tried unsuccessfully to force open the door to the room. Meanwhile, the other robber pushed Nitz back when he attempted to leave; however, Nitz was able to dodge him and get out. The robbers were unable to open the cash register, so they took it with them. Robin Hannon, a resident of an apartment located near the U-Totem, was disturbed by the noise from a loud muffler. Hannon looked outside and observed two people getting into a large red van parked in the U-Totem lot. The van had a defective tail light.1

Shortly after 1:00 a.m. on April 18, 1983, two police officers from Forest Park in Hamilton County were seated in a marked police cruiser eating their lunch. The officers were in a K-Mart parking lot, which was located in an area containing principally commercial establishments, some of which had recently been burglarized. The officers had been advised approximately forty-five minutes earlier by their supervisor about the incident at the King Kwik. As the officers watched, a red cargo van drove by at a slow rate of speed. The van pulled into the K-Mart lot, and its headlights were turned off. A few minutes later, the van's headlights came back on, and the van left the lot. However, the van returned within five minutes, again at low speed, from the direction opposite to that in which it had gone moments before.

The police officers became suspicious, followed the van, and, upon inquiry of the police dispatcher, learned the identity of its owner. The van pulled into a parking lot adjacent to a closed United Dairy Farmers store. The officers pulled behind the van after summoning back-up assistance. One of the passengers, later identified as John Eastle Brewer, exited the van and approached the police car. Brewer identified himself as "David Urey" and told the police he had no identification. Brewer provided inconsistent stories about why he was in the area. One of the officers asked Brewer to remain in the cruiser while he approached the van. The van's driver, William Danny Woodall, and Petitioner provided the officer with identification, which was called in to the dispatcher. Although there were no current warrants for either Petitioner or Woodall, the dispatcher reported that both had prior felony convictions. The officer shined a flashlight inside the van and saw coins on the floor. There were stocking masks and a knife located in a tray on the dashboard. A Shell credit card in Sharon's name was lying on the floor under the passenger seat. There was also what appeared to be fresh blood on the interior side of the driver's seat. A drawer from a cash register was in the back of the van.

B. Indictment and Trial

On the basis of this evidence, Petitioner, Brewer, and Woodall were arrested. In an indictment returned on May 26, 1983, the three were charged with aggravated murder and three counts of aggravated robbery. Petitioner also was charged with two death penalty specifications; i.e., that he was the "principal offender" who committed the aggravated murder of Monte Tewksbury while committing or attempting to commit the aggravated robbery of the King Kwik, as well as the aggravated robbery of Monte Tewksbury himself2. Pleas of not guilty were entered as to all charges on May 31, 1983. Petitioner's counsel filed a series of pre-trial motions, including one seeking the suppression of evidence taken from the van. The Hamilton County Court of Common Pleas denied this motion on July 26, 1983. Jury selection for Petitioner's trial began on August 1, 1983, and lasted five days.

The main evidence introduced at trial to prove that Petitioner was the principal offender, i.e., the individual who actually stabbed and murdered Monte, came from Ronald Armstead, who at the time of trial, was serving a sentence at the Cincinnati Workhouse (Cincinnati Correctional Institute). Armstead testified that he recalled Petitioner's, Brewer's, and Woodall's arrival at the Workhouse and that, practically from the date of their arrival, they had bragged about committing the King Kwik robbery and Monte's murder. Armstead testified that, approximately three weeks after the robbery, he was with Petitioner, Brewer, Woodall, and others when a P.M. Magazine television program aired featuring footage of the Tewksbury family. The footage, which included singing by Monte's daughter, was taped the day before Monte was murdered. According to Armstead, Petitioner stated during the telecast that Monte deserved to die and, either then or at another time, admitted to Armstead that he had killed Monte because Monte had "gotten in the way." Armstead also testified that Petitioner sought advice from him regarding whether the prosecution could detect blood stains on a knife blade if it had been cleaned.3

The State called a total of twenty-six witnesses at the guilt stage. Petitioner, on the other hand, called only one witness, a police officer who identified some of Woodall's clothing. Closing arguments were presented on August 12, 1983, after ten days of trial. Late that evening, the jury asked the court to have Armstead's testimony read back. Over objection, the...

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