Hill v. Brigano

• Decision Date: 02 November 1999
• Docket Number: No. 98-3714,98-3714
• Parties: (6th Cir. 1999) Edward Alan Hill, Petitioner-Appellant, v. Anthony J. Brigano, Warden, Respondent-Appellee. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 833

199 F.3d 833 (6th Cir. 1999)

Edward Alan Hill, Petitioner-Appellant, v. Anthony J. Brigano, Warden, Respondent-Appellee.

No. 98-3714

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: November 2, 1999

Decided and Filed: December 22, 1999

[Copyrighted Material Omitted]

Jill E. Stone, David H. Bodiker, Cynthia A. Yost, PUBLIC DEFENDER'S OFFICE, OHIO PUBLIC DEFENDER COMMISSION, Columbus, Ohio, for Appellant.

Stuart W. Harris, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, for Appellee.

Before: KENNEDY and RYAN, Circuit Judges; CLELAND^*, District Judge.

OPINION

KENNEDY, Circuit Judge.

Petitioner, Edward Alan Hill, appeals the denial of his petition for a writ of habeas corpus. Defendant was convicted in the state courts of Ohio on two counts of aggravated murder with firearm specification under Ohio Rev. Code § 2903.01 (A)¹ and two counts of aggravated robbery under Ohio Rev. Code § 2911.01. His appeal raises four issues: (1) whether appellant was denied his Fifth and Sixth Amendment rights through the use of unconstitutionally obtained evidence against him at trial; (2) whether the trial court violated the appellant's Sixth Amendment right to a fair trial by limiting defense counsel's voir dire of prospective jurors; (3) whether appellant was denied his Sixth Amendment right to confrontation when the prosecution was allowed to introduce into evidence hearsay statements; and (4) whether appellant was denied his Sixth Amendment right to a fair trial by the cumulative effect of prosecutorial misconduct. Concluding that the State of Ohio's adjudication of issues 1, 2 and 4 involved no unreasonable application of clearly established federal law and that the admission of the hearsay statement in issue 3 was harmless, we AFFIRM.

I. Facts

On May 8, 1989, Steven Vargo and Charles Sponhaltz were found dead on a rural road in Belmont County, Ohio. During the investigation of this crime, the police uncovered significant evidence linking defendant and his friend, Donald Palmer, to the crime scene. They had been seen in the general vicinity of the crime scene both prior to and after the homicides occurred. Early in the morning on the day of the homicides, defendant, who was driving a brown Dodge Charger, was stopped in the vicinity by the police. A brown Dodge Charger was seen leaving the scene of the crime in a reckless and hurried manner. The police also were contacted by a gas station attendant who had observed the defendant on two occasions on the day of the murder. The defendant's mannerism were so suspicious that two attendants felt the need to copy the defendant's license plate number. Later, the police also discovered physical evidence linking the defendant to the crime scene -- finger and shoe prints on Charles Sponhaltz's truck bed were determined to belong to the defendant.

On May 15, 1989, Donald Palmer contacted Columbus police officer Fred Thompson to inquire whether he was a suspect in the homicides. Palmer informed the officer that he and the defendant had been in Belmont County on May 7 and 8 traveling in the defendant's brown Dodge Charger. He also stated that he was missing a .22 caliber pistol, the same caliber as used in the shooting. At the end of the conversation, Palmer gave the officer the defendant's telephone number. The officer contacted the defendant and arranged a meeting. Prior to that meeting, the police located the defendant, Palmer, and the defendant's vehicle and asked the men to accompanying the officers to the police station. The police also obtained defendant's permission to impound his vehicle.

Defendant, after being advised of his rights, did give a statement to police which placed him in the vicinity of the crime; however, when advised he was a suspect, the defendant asserted his Fifth Amendment rights and refused to speak with the officers about the crime. Palmer, who was questioned next, confessed to the crimes and provided the police with information about the defendant's role in these crimes. Defendant, who was advised of Palmer's statement, was questioned briefly but again refused to speak about the crime. The next morning, defendant was taken to a hearing in the Franklin County court where he was represented by a public defender. The purpose of that hearing was to clear his transfer to Belmont County, Ohio where the crimes had occurred. On the ride between Franklin County and Belmont County he was encouraged by the transporting officer to tell what had happened but refused to speak. At the defendant's initial appearance, two days after he was arrested, the defendant was appointed counsel by the court. Immediately following this initial appearance and prior to speaking with counsel, defendant and Palmer, for whom counsel also had been appointed, were transported back to the Belmont County jail. During this trip, Palmer asked the police whether they had found certain evidence about which Palmer had told them. The officer responded no, they had not. Defendant then stated that he knew the location of the evidence. Upon arriving at the jail, the defendant agreed to take the officers to this location. The officers videotaped defendant's statements that he was willing to lead police to the location of the evidence and that he understood his rights, including his right to have counsel present. The defendant led the officers to the discovery of the victims' wallets and personal items and spent shell casings².

Prior to the introduction of evidence, defense counsel filed a motion to suppress all the evidence and statements obtained from the defendant after his initial appearance. The court held a suppression hearing at which the officers and the defendant testified. The trial judge found that the defendant had initiated the conversation and validly waived his rights and consented to speak with the police; thus, she permitted the prosecution to introduce this evidence at trial.

The defendant was indicted on six counts in association with the homicides of Sponhaltz and Vargo. Prior to his trial, defendant's accomplice, Donald Palmer, was tried separately, was found guilty and sentenced to death. The press covered Palmer's trial and reported Palmer's testimony. Palmer had testified that he and the defendant had intended to check out George Goolie's home and do some target practice at a range near Goolie's home. On their way to the target range, the defendant drove around a curve and accidentally rear-ended Charles Sponhaltz's vehicle. Sponhaltz exited the vehicle and the defendant and Sponhaltz appeared to be on the verge of a physical altercation. Palmer attempted to intervene and, not thinking about the gun he was holding, hit Sponhaltz. The gun discharged and Sponhaltz fell to the ground. The defendant yelled "Kill him, Kill him" and Palmer shot Sponhaltz two more times. Then Palmer turned and encountered Steven Vargo, a motorist who had come on the scene. Palmer also shot Vargo two times. Palmer stated that the defendant was by the car crying and holding Sponhaltz's legs. The defendant asked Palmer to help him place the body in the bed of Sponhaltz's truck and the defendant drove Sponhaltz's truck away from the scene. Sponhaltz's truck was found parked in a field about a mile from Vargo's body. Palmer also testified that the defendant took the wallets of the victims and hid them so that the victims could not be identified immediately.

Approximately a month before the date set for empaneling the jury, the court granted a defense motion to move the defendant from one jail to another. Because of a miscommunication between the court and the attorneys ³ the prosecutor was not informed of the motion until after it had been granted and the defendant had been moved. The prosecutor commented to the press about this movement of the defendant from one jail to another. ⁴ These statements resulted in the publication of an editorial discussing the impropriety of moving the defendant. Upon becoming aware of the prosecution's objection to the move, the court ordered that the defendant be returned to the jail to which he was first assigned.

Prior to the empaneling of the jury, both defense counsel and the prosecution made motions for a change of venue. The trial court judge deferred ruling on these motion until the court made a determination whether an impartial jury could be empaneled. The judge informed both parties that they would need to submit their questions for the voir dire to the judge for approval prior to the beginning of the voir dire. The judge then reviewed the questions and informed both parties of the questions that were permissible to ask. The court instructed counsel that only approved questions could be used in voir dire. Two jurors were struck from the panel for cause by the court because they stated that they would not impose the death penalty. Defense counsel's request to rehabilitate the potential jurors was denied by the court. ⁵ Defense counsel also objected to the empaneling of any juror who had been exposed to pre-trial publicity. ⁶ The trial court overruled this objection. Upon completion of the voir dire, the trial judge determined that an unbiased jury was empaneled and denied both parties' motions for a change of venue.

At trial, the prosecutor presented the testimony of Officer Fred Thompson. Thompson testified to the contents of his telephone conversation with Donald Palmer. The defendant objected to this testimony as inadmissible hearsay. The court overruled this objection on the grounds that it was admissible under the co-conspirator exception to the hearsay rule. The court allowed Thompson to tell the jury about Palmer's question as to whether he was a suspect and his statements about the fact that he and the defendant were in Belmont County on May 7th and 8th in defendant's car, that they had been to a gas station in the vicinity, that they had driven in the area where George Goolie lived (which...