Gumm v. Mitchell

• Decision Date: 22 December 2014
• Docket Number: No. 11–3363.,11–3363.
• Parties: Darryl GUMM, Petitioner–Appellee, v. Betty MITCHELL, Warden, Respondent–Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

775 F.3d 345

Darryl GUMM, Petitioner–Appellee

v.Betty MITCHELL, Warden, Respondent–Appellant.

No. 11–3363.

United States Court of Appeals, Sixth Circuit.

Argued: Nov. 20, 2013.

Decided and Filed: Dec. 22, 2014.

ARGUED:Seth P. Kestner, Office of the Ohio Attorney General, Columbus, OH, for Appellant. Kathleen McGarry, McGarry Law Office, Glorieta, NM, for Appellee. ON BRIEF:Seth P. Kestner, Charles L. Wille, Office of the Ohio Attorney General, Columbus, OH, for Appellant. Kathleen McGarry, McGarry Law Office, Glorieta, NM, Lawrence J. Greger, Dayton, OH, for Appellee.

Before: DAUGHTREY, MOORE and CLAY, Circuit Judges.

CLAY, J., delivered the opinion of the court in which DAUGHTREY, J. joined, and MOORE, J. joined in all but Part II.B.4.c. of the majority's opinion and in the judgment. MOORE, J. (pp. 385-86), delivered a separate concurring opinion.

OPINION

CLAY, Circuit Judge.

Petitioner Darryl Gumm is mentally retarded and has an IQ of approximately 70. He was convicted by an Ohio jury for the kidnapping, attempted rape, and murder of ten-year-old Aaron Raines. For these crimes, Petitioner was sentenced to death. His convictions and sentences were affirmed on direct appeal, and his state post-conviction petition was found to lack merit by the Ohio state courts. After he filed a petition for federal habeas corpus, the United States Supreme Court decided in Atkins v. Virginia, 536 U.S. 304, 122 S.Ct. 2242, 153 L.Ed.2d 335 (2002) that persons who are mentally retarded cannot be executed. In Petitioner's post-Atkins petition for state post-conviction review, the Ohio courts adjudicated Petitioner mentally retarded and reduced his sentence to thirty years to life in prison. In that second petition, the Ohio courts rejected Petitioner's non-Atkins claims.

On federal habeas review, the district court granted Petitioner a conditional writ of habeas corpus on the four claims we have before us on appeal. These claims include (1) that the government failed to disclose exculpatory evidence as required by Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963) ; (2) that Petitioner received an unfair trial due to the improper admission of incendiary prior bad acts evidence; (3) that admission of a psychiatric report violated the Sixth Amendment's Confrontation Clause; and (4) that the prosecutor's elicitation of inflammatory testimony and admission of psychiatric reports constituted prosecutorial misconduct, causing a denial of due process. Respondent Warden has appealed. For the following reasons, this Court AFFIRMS the district court's grant of the conditional writ of habeas corpus based on Petitioner's Brady and prosecutorial misconduct claims.¹

I.BACKGROUND

A. Factual Background

The facts of the crimes in this case are not disputed and have been summarized by the Ohio Supreme Court during its review of his convictions and sentences on direct appeal as follows:

Early on the morning of May 12, 1992, the bludgeoned body of ten-year-old Aaron Raines was found by police in the basement of an abandoned building in the lower Price Hill section of Cincinnati....

At 11:00 p.m. on May 11, 1992, Aaron Raines's family reported Aaron as missing to Cincinnati police. An extensive neighborhood search took place, culminating in the discovery of Aaron's body in the basement of an abandoned building adjacent to a neighborhood park where Aaron had previously been playing.

Several weeks later Betty Gumm, a friend of the Raines family and defendant'ssister through adoption, learned that her brother Darryl had been in the neighborhood on the day of Aaron's murder. Betty knew that her brother was acquainted with Aaron, and was familiar with the abandoned buildings where Aaron's body was found, having stripped copper

out of them many times at night. Betty called the local “crime Stoppers” number to report her information.

On July 24, 1992, Cincinnati police interviewed appellant at his job site, a tobacco farm in Brooksville, Kentucky. At that time, Gumm told police he hadn't been in Cincinnati since March 1992, and indicated his desire to cooperate with police. On July 27, Cincinnati police returned to Brooksville to talk to Gumm again, and Gumm accompanied them back to Cincinnati, ostensibly to clear himself of any wrongdoing. After extensive questioning in which he changed his statement several times, Gumm eventually confessed involvement in the murder of Aaron Raines.

Gumm's statement disclosed that he and one Michael Bies, a Kentucky acquaintance, were driven to Cincinnati on May 11 by acquaintances and dropped off around noon. Gumm told police that he and Bies went to a bar to drink beer, and later went to the Price Hill park adjacent to two abandoned buildings, where they encountered Aaron. Gumm and Bies were observed at approximately 7:00 p.m. sitting on a bench in the park in which Aaron last played. Gumm admitted that he lured Aaron into the abandoned building for sexual purposes by telling him he would be paid $10 to help strip copper

from the buildings. According to Gumm, after the three entered the first building and crossed over a walkway into the second building, Bies asked Aaron to perform oral sex for money. When Aaron refused, Gumm claimed that Bies punched Aaron several times, picked him up and carried him downstairs to the basement. According to Gumm, Bies there hit Aaron several additional times, once on the head with a “two by four.” After that, Gumm stated that he and Bies fled the scene. Gumm claims that he himself did not hit Aaron at all, but conceded that he might have stepped on his body as he was attempting to flee from the basement.

When police found Aaron's body at the crime scene, they noticed several objects around the body that contained blood and hairs consistent with the victim's. These objects included a chunk of concrete, a pipe, pieces of wood, and twine found wrapped around Aaron's neck.

Amy Martin, M.D., a former deputy coroner of Hamilton County, examined Aaron's body at the crime scene and conducted the post-mortem exam at the coroner's office. Dr. Martin testified that Aaron sustained twenty-one lacerations to the back

of his head, representing twenty-one separate blows from an object, and that some of these wounds manifested lines that matched the threading on the pipe found next to the body. Five of Aaron's ribs were broken, which Dr. Martin found unusual for a boy of his age, since such bones are usually flexible. Dr. Martin opined that “something like a kicking or stomping” would be the type of force necessary to break a young boy's ribs. Dr. Martin further testified that the left side of Aaron's face was completely crushed in a manner consistent with a blow from the chunk of concrete found lying next to the body. Several “chevron pattern” bruises consistent with the tread of a Nike gym shoe were found on several areas of Aaron's body. Gumm had told police that he thought Bies had been wearing L.A. Gear gym shoes, and acknowledged

that he had thrown his own shoes away.

Dr. Martin testified that Aaron also sustained a broken jaw

, chipped teeth and cut lips, a deep laceration and bone chip on the underside of his jaw, compression wounds and hemorrhages in the eyes probably caused by compression of twine wrapped around his neck, and pattern bruises typical of injuries caused by being struck with a stick or rod.

Dr. Martin found no evidence of any defensive wounds

on Aaron's body, and opined that the absence of defensive wounds was consistent with Aaron having been held or restrained while his injuries were being inflicted. Dr. Martin determined that the cause of death was a combination of blunt impacts to the head, chest and abdomen, as well as blunt injury to the neck.

State v. Gumm, 73 Ohio St.3d 413, 653 N.E.2d 253, 257–58 (1995) ; see also State v. Bies, 74 Ohio St.3d 320, 658 N.E.2d 754, 756–57 (1996) (discussing facts of the crime in the context of co-defendant Bies' appeal).

B. Procedural History

Petitioner was indicted on the following counts: (1) aggravated murder with death penalty specifications, in violation of Ohio Revised Code § 2929.04(A)(3) (offense committed to escape detection, apprehension, or punishment for another offense) and Ohio Revised Code § 2929.04(A)(7) (murder committed while offender committed or attempted to commit kidnapping and rape); (2) attempted rape, in violation of Ohio Revised Code § 2923.02 ; and (3) kidnapping, in violation of Ohio Revised Code § 2905.01. A jury convicted Petitioner on all counts.

Petitioner did not testify during the mitigation phase of his trial and called only one witness—his sister, Karen Ridenour. The jury recommended imposition of the death penalty after concluding beyond a reasonable doubt that the aggravating circumstances outweighed the mitigating factors. The trial court imposed the death sentence for the aggravated murder count and imposed consecutive terms of imprisonment for Petitioner's attempted rape and kidnapping convictions. State v. Gumm, 73 Ohio St.3d 413, 653 N.E.2d 253, 258 (1995).

Petitioner's convictions and sentence were affirmed by the Ohio Court of Appeals, see State v. Gumm, Nos. C–920907, B–925608, 1994 WL 44411 (Ohio Ct.App. Feb. 16, 1994), and by the Ohio Supreme Court, see Gumm, 653 N.E.2d 253, cert. denied, 516 U.S. 1177, 116 S.Ct. 1275, 134 L.Ed.2d 221 (1996).

1. Trial

A number of issues on appeal concern evidence adduced during Petitioner's trial. Specifically, Petitioner raises claims relating to the testimony of Phyllis Thacker and Charlotte Jean Baker, as well as psychiatric reports admitted during the testimony of Petitioner's expert, Dr. Henry Leland.

Following opening statements by each side, the prosecutor put on Thacker, whom Petitioner had lived with on and off for a number of years. After establishing how Petitioner came to live with Thacker, the prosecutor began questioning Thacker about Petitioner's “problem with alcohol.” (J.A. at 247.) This line of questioning drew an objection from Petitioner's counsel,...