Esparza v. Mitchell
| Decision Date | 05 November 2002 |
| Docket Number | No. 01-3025.,No. 00-4615.,00-4615.,01-3025. |
| Citation | 310 F.3d 414 |
| Parties | Gregory ESPARZA, Petitioner-Appellee/Cross-Appellant, v. Betty MITCHELL, Warden, Respondent-Appellant/Cross-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Jeffry F. Kelleher (briefed), Cleveland, OH, Angela Wilson Miller (argued and briefed), Columbus, OH, for Petitioner-Appellee Cross-Appellant in 00-4615, 01-3025.
Paul L. Nelson (briefed), Federal Public Defenders Office, Western District of Michigan, Grand Rapids, MI, David M. Porter, Sacramento, CA, for Amicus Curiae in 00-4615, 01-3025.
Charles L. Wille (argued and briefed), Attorney General's Office of Ohio, Capital Crimes Section, Columbus, OH, for Respondent-Appellant Cross-Appellee in 00-4615, 01-3025.
Before: MERRITT, SUHRHEINRICH, and DAUGHTREY, Circuit Judges.
This is a death penalty case from Ohio, tried by a jury, in which the District Court issued the writ of habeas corpus as to the sentencing phase of the case. The principal problem in the case arises from the fact that the indictment did not charge the aggravating circumstance that made the crime capital, nor did the trial court instruct the jury on the subject, nor did the jury return a verdict finding one or more of the aggravating circumstances that permit a sentence of death. We first look at the Ohio death penalty statutes before explaining the facts and previous rulings of state and federal courts. It is clear from this review that the Ohio courts did not follow Ohio death penalty statutes created to comply with Supreme Court cases narrowing the class of offenders eligible for the death penalty under the Eighth Amendment.
Under § 2929.03 of Ohio law, entitled "Imposing Sentence for a Capital Offense," an indictment in a capital case "charging aggravated murder" must state the "aggravating circumstances" that make the defendant eligible for the death penalty:
(A)If the indictment or count in the indictment charging aggravated murder does not contain one or more specifications of aggravating circumstances listed in division (A) of § 2929.04 of the Revised Code, then, following a verdict of guilty of the charge of aggravated murder ..., the trial court shall impose a sentence of life imprisonment.... (Emphasis added.)
The indictment did not contain such a charge. The next section of the Ohio Code, § 2929.04, entitled "Criteria for Imposing Death," repeats this requirement, which is followed by a list of nine "aggravating circumstances" that allow the imposition of the death penalty:
(A) Imposition of the death penalty for aggravated murder is precluded unless one or more of the following is specified in the indictment or count in the indictment ... and proved beyond a reasonable doubt. (Emphasis added.)
Under subsection (B) of § 2929.03, if the defendant is to be tried for a capital offense in Ohio, the jury
verdict shall separately state ... whether the offender is guilty or not guilty of each specification [of an aggravating circumstance]. The jury shall be instructed on its duties in this regard. The instruction to the jury shall include an instruction that a specification shall be proved beyond a reasonable doubt in order to support a guilty verdict on the specification.... (Emphasis added.)
No instruction was given, and the jury did not return a verdict finding any aggravating circumstance. In the present case, the aggravating circumstance not found by the jury but later supplied by Ohio judges is found in § 2929.04(A)(7): "The offense [of murder] was committed while the offender was committing ... robbery ... and ... was the principal offender in the commission of the aggravated murder...." (Emphasis added.)
These death penalty provisions of the Ohio Code were adopted in 1981 in direct response to a series of cases in the Supreme Court of the United States interpreting the Eighth Amendment. As more fully discussed below, these cases require states to narrow or restrict the class of murderers who are subject to capital punishment. A state may do so by adopting by statute a set of "aggravating circumstances," as Ohio has done. Chief Justice Rehnquist's opinion in Lowenfield v. Phelps, 484 U.S. 231, 244, 108 S.Ct. 546, 98 L.Ed.2d 568 (1988), concisely summarizes the requirements of the Eighth Amendment in this respect:
To pass constitutional muster, a capital sentencing scheme must "genuinely narrow the class of persons eligible for the death penalty and must reasonably justify the imposition of a more severe sentence on the defendant compared to others found guilty of murder." Zant v. Stephens, 462 U.S. 862, 103 S.Ct. 2733, 77 L.Ed.2d 235 (1983). Under the capital sentencing laws of most States, the jury is required during the sentencing phase to find at least one aggravating circumstance before it may impose death. By doing so, the jury narrows the class of persons eligible for the death penalty according to an objective legislative definition. Zant, supra, 462 U.S. at 878, 103 S.Ct. 2733 (). (Citations omitted.)
Excusing the trial judge's failure to comply with the statutory provisions referred to above, the state courts, on their own initiative, after the jury trial and verdict, found the petitioner Esparza guilty of the aggravating circumstance that made him eligible for the death penalty, i.e., being the "principal offender" in committing an aggravated murder while committing a robbery. The jury itself was never informed of the aggravating circumstances required, nor did it find that such a circumstance existed. The primary question is whether the State violated the Eighth Amendment, as well as state law, when it failed to either charge Esparza in the indictment with the aggravated circumstance for which the death penalty was imposed or instruct the jury on the aggravating circumstance and have the jury reach a verdict on the existence of the aggravating circumstance. We conclude that the District Court was correct in issuing the writ on this basis.
The case was tried on the theory that Esparza was the only participant in the crime. The State's proof showed that on the evening of February 12, 1983, a masked man entered the Island Variety Carryout in Toledo, Ohio, and approached the two store employees, Melanie Gershultz and James Barailloux. Pointing a small black handgun at them, he ordered Gershultz to open the cash register. While she was doing this, Barailloux fled the store through a rear door, entering the attached home of the store's owner. While he was alerting the owner of the robbery, he heard a shot. He returned to the store and found Gershultz lying on the floor, shot once in the neck, and the cash register open and missing approximately $110. Gershultz died shortly thereafter.
At trial a year later, both Esparza's sister and a fellow inmate testified that he confessed to the killing; and the sole witness to the robbery, James Barailloux, testified that the masked robber was short and husky, as was Esparza, and that he was wearing a dark blue jacket similar to the jacket Esparza's sister said Esparza wore that night. The jury returned a verdict of guilty on both counts late in the day on Thursday, May 10, 1984. A mitigation hearing was held on Tuesday, May 15, during which Esparza put on four witnesses who testified briefly in his behalf. He also gave to the jury his juvenile court file and a presentencing report prepared by the state, both of which contained information unfavorable to Esparza. The next day, the jury sentenced Esparza to death, and the trial court accepted the sentence.
After Esparza's trial, his appeals and his state post-conviction proceedings, a substantial volume of exculpatory evidence was revealed that was not turned over by prosecutors at trial. This evidence tended to prove that Joe Jasso was a participant in the crime and that Esparza did not act alone.
No information concerning Jasso was provided to the defense before trial. In information discovered as a result of a discovery request enforced by the district court below, Esparza learned that two individuals, Charles Hall and Stephen Billings, both separately reported to the Toledo Police Department that they had seen a Caucasian male and a Hispanic male in the Island Variety Carryout the night of the homicide. Hall and Billings both reported that the Caucasian man was driving a Monte Carlo. Hall reported that he saw the Monte Carlo circle the Island Variety Carryout twelve times. Information implicating Jasso was also discovered as a result of district court-ordered release of tips collected by Crimestoppers, a privately funded program that works in conjunction with local law enforcement to gather information regarding unsolved crimes. Two days after the homicide, an unidentified caller stated that he had overheard Joe Jasso talking about the murder. The caller hung up before any additional information was obtained.
Prior to trial, the government eyewitness, Island Variety Carryout store clerk James Barailloux, provided a series of inconsistent descriptions of the assailant to the Toledo police department. Just days after the robbery and homicide occurred, Barailloux provided two slightly different descriptions of the assailant, both generally describing a white male in his mid-thirties, around 6' tall and weighing around 180 pounds. He did not mention a ski mask. Esparza was 19 years old at the time of the incident, 5'8" tall, Hispanic, and heavy-set in body type. Two months after the robbery, Barailloux described the perpetrator as either Caucasian or Hispanic and "husky." He provided no description of the assailant's clothing during that interview. Barailloux's description continued to change over...
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