Gray v. Moore

• Court: U.S. Court of Appeals — Sixth Circuit
• Writing for the Court: R. Guy Cole, Jr.
• Citation: Gray v. Moore, 520 F.3d 616 (6th Cir. 2008)
• Decision Date: 26 March 2008
• Docket Number: No. 06-3547.,06-3547.
• Parties: Matthew GRAY, Petitioner-Appellant, v. Ernie L. MOORE, Warden, Respondent-Appellee.

520 F.3d 616

Matthew GRAY, Petitioner-Appellant, v. Ernie L. MOORE, Warden, Respondent-Appellee.

No. 06-3547.

United States Court of Appeals, Sixth Circuit.

Argued: February 8, 2008.

Decided and Filed: March 26, 2008.

Rehearing Denied April 10, 2008.

ARGUED:

Craig M. Jaquith, Ohio Public Defender's Office, Columbus, Ohio, for Appellant. Thelma Thomas Price, Office of the Attorney General, Columbus, Ohio, for Appellee.

ON BRIEF:

Craig M. Jaquith, Ohio Public Defender's Office, Columbus, Ohio, for Appellant. Thelma Thomas Price, Office of the Attorney General, Columbus, Ohio, for Appellee.

Before: KENNEDY, MARTIN, and COLE, Circuit Judges.

OPINION

R. GUY COLE, JR., Circuit Judge.

On June 27, 2001, a jury in Hamilton County, Ohio, convicted Matthew Gray of aggravated murder and kidnapping, both with firearm specifications. After exhausting his remedies in state court, Gray filed the instant petition for a writ of habeas corpus in the United States District Court for the Southern District of Ohio, arguing that the trial court violated his constitutional rights to due process, to be present at his trial, and to confront the witnesses against him, when it removed him from the courtroom without warning him of the consequences of his actions. Because we conclude that the Ohio appellate court unreasonably applied Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), and because the error had a substantial and injurious effect on the outcome of Gray's kidnapping conviction, we REVERSE the district court's judgment and GRANT a conditional writ of habeas corpus with respect to that conviction. However, because the record supports Gray's aggravated murder conviction irrespective of the constitutional error, we AFFIRM the district court's denial of Gray's habeas petition with respect to the aggravated murder conviction.

I.

The case before us has its roots in a long-standing family feud between Matthew Gray, a resident of Columbus, Ohio, and his brother Daniel over the custody of their incapacitated father. After the family admitted their father into a nursing home, a probate court determined that Daniel and their sister, Loretta, should make all personal, health care, and financial decisions for their father, including the sale of their father's real property, and excluded Gray from any guardianship role. The lingering animosity between Gray and Daniel over these events finally came to head shortly before October 5, 2000, when a construction crane owned by Gray, stored on a parcel of land adjacent to his father's property, disappeared. Gray immediately suspected Daniel of selling it for personal profit.

The crane, whether stolen or merely missing, a fact never resolved at trial, is what turned this family dispute deadly. On October 5, 2000, at approximately 10 p.m., Gray drove from Dublin, Ohio to Daniel's residence in Forest Park, Ohio with a loaded .38 caliber pistol in his pocket to question Daniel about the missing crane. According to the testimony of Adrian Evans, Daniel's girlfriend and the only eyewitness to the events, the conversation between Gray and Daniel appeared to be "[n]ormal at first," but "[t]hen they got loud," ending in Gray yelling, "Where is [the crane] at?" (Joint Appendix ("JA") 452.) Daniel attempted to sidestep the conversation, but Gray raised his voice again and demanded that they discuss the whereabouts of the crane immediately. When Daniel finally told Gray to "[g]et out of my house," Gray responded, "I told you, motherfucker, what I was going to do," pulled his pistol out, and shot his brother twice as he attempted to flee down a hallway. (JA 455.)

After hearing Gray fire the shots, Evans unsuccessfully attempted to hide under a bed located in a room at the end of the hallway. When Gray found Evans in the room, he told her, "This is between me and Dan," put the barrel of the gun to her forehead, and forced her to the front of the house. (JA 460.) Evans testified that twice Gray left her to discharge additional shots into his brother's body. When Gray left for the second time, Evans crawled to a second exit in the residence and fled to summon police from a neighbor's house.

Officer Tom Wells of the Cincinnati Police Department testified that after leaving the scene of the crime, Gray drove to Cincinnati, walked into the police station visibly distraught, and pleaded repeatedly, "You've got to help me." (JA 591.) When police asked Gray what had happened, Gray explained that "[he] didn't mean to shoot him." (JA 593.) Immediately, police handcuffed Gray and took him into custody. Shortly thereafter, Gray directed them toward the missing pistol, which he had thrown out the window on his drive toward the Cincinnati police station.

Gray's version of the shooting differed at trial in a few relevant respects. In an interview with Officer Patrick Carr of the Forest Park Police Department, which occurred shortly after police had taken him into custody, Gray explained that he had accidentally shot his brother. After the argument over the missing crane became heated, Daniel pushed him, causing him to fall backwards; as he fell, "his hand came out of his pants pocket and the gun went off." (JA 618.) Gray also admitted that Evans overheard the entire confrontation, but he claimed that after the shooting, he ushered her to the front inside steps, told her to be calm, and assured her that he would not hurt her.

A jury convicted Gray of all charges, and the trial court sentenced him to consecutive terms of life in prison with parole eligibility after twenty years for aggravated murder, ten years for kidnapping, and three years mandatory for the firearm specifications.

With the assistance of new counsel, Gray appealed to the Hamilton County Court of Appeals, First Appellate District, alleging that his trial counsel was ineffective for failing to request a jury instruction on the lesser offense of manslaughter. Appellate counsel also submitted five pro se assignments of error, which included a claim that, under Illinois v. Allen, 397 U.S. 337, 90 S.Ct. 1057, 25 L.Ed.2d 353 (1970), the trial court violated Gray's constitutional rights to due process and to confront witnesses against him when the judge removed him from the courtroom without warning him of the consequences of his actions. To support this claim, Gray referenced the following exchange between the court, the State's trial counsel, and himself, which took place during the direct examination of Evans at trial:

Q: What did he do when you spoke back to him?

A: He put the gun right here —

THE DEFENDANT: Why are you lying? You lying. You know it.

THE COURT: Deputy —

THE DEFENDANT: She knows she's lying.

THE COURT: Deputy, remove him from the courtroom.

THE DEFENDANT: She's lying, your Honor.

MR. GIBSON [prosecutor]: Judge, I'd like him out of the room.

THE COURT: What?

MR. GIBSON: I'd like him out of this room.

THE DEFENDANT: She's lying.

THE COURT: Remove him from the courtroom.

THE DEFENDANT: Your Honor, she's lying. She knows it. She's lying. (The defendant left the courtroom).

THE COURT: The jury will disregard anything the defendant said.

At the end of Evans's direct examination and outside of the jury's presence, the trial judge explained that he ordered the removal of Gray because Gray had made "two or three separate outbursts within a fairly short period of time," and that "the defendant's outburst ... was extremely loud and [] persistent." (JA 468.) Right before the court recessed for a lunch break, the trial judge asked Gray's attorney to explain to Gray, who was being held in confinement, that he would not be allowed back in court for the remainder of Evans's testimony, including cross-examination. When the court finally allowed Gray to return, the court inquired as to whether there would be any other outbursts, to which Gray responded in the negative and apologized for his earlier behavior. The court admonished Gray to speak "in hushed tones" to his attorney and explained that he had no intention of binding and gagging Gray, but would return him to jail if his misconduct continued. The judge ultimately found Gray in contempt for his outburst. At no time did Gray or his attorney object to Gray's removal.

The state court of appeals affirmed the judgment of the trial court, finding all of Gray's claims to be without merit. On the key question of whether the trial court erred when it removed Gray from the courtroom for his outbursts during a witness's testimony, the court of appeals determined that the trial judge's immediate removal of Gray from the courtroom was well within the court's "sound discretion to avoid disruptive conduct by the defendant." State v. Gray, Nos. C-010527, C-010533, slip op. at 3 (Ohio Ct.App. June 19, 2002)(unpublished).

After exhausting his post-conviction remedies in the state court system, Gray filed the instant petition for a writ of habeas corpus in the United States District Court for the Southern District of Ohio. Magistrate Judge Timothy S. Black issued a Report and Recommendation, suggesting that Gray's petition be denied. With respect to the main issue — whether Gray's conviction should be set aside because the trial court forced him to leave the courtroom — the Report found that the United States Supreme Court had not established the necessity of a warning before removing a defendant from a courtroom, and pointed to disagreement among federal courts for support. The Report also concluded that Gray had not demonstrated that his absence during the victim's testimony negatively affected the jury's verdict, and thus any error was harmless.

On March 1, 2006, the district court summarily adopted the Magistrate's Report and Recommendation and dismissed Gray's habeas petition, but granted a certificate of appealability with respect to Gray's claim that he was denied his constitutional right to confront a witness when he was removed from the courtroom. Gray timely...