JUDGE CHRISTOPHER A. BOYKO
MEMORANDUM OF OPINION
This matter is before the Court upon Petitioner Percy Hutton's ("Hutton" or "Petitioner") Amended Petition for Writ of Habeas Corpus.
Pursuant to 28 U.S.C. § 2254, Petitioner filed an Amended Petition for Writ of Habeas Corpus, challenging his conviction and sentence of death rendered by an Ohio court. (ECF No. 60.) The Respondent, Warden Betty Mitchell ("Respondent"), filed a timely Return of Writ, and Hutton filed an Amended Traverse. (ECF Nos. 64 and 66, respectively.)
For the following reasons, the Amended Petition for Writ of Habeas Corpus is denied.
On October 16, 1985, a Cuyahoga County Grand Jury issued a five-count Indictment against Hutton. The Indictment charged Hutton with two counts of murdering Derek Mitchell ("Mitchell") in violation of Ohio Revised Code § 2903.01. The first count charged that he committed the murder with prior calculation and design pursuant to Ohio Revised Code § 2903.01(A). The second charged him with murdering Mitchell while committing, attempting, or fleeing the commission or attempted commission of kidnapping, pursuant to Ohio Revised Code § 2903.01(B). Each murder count carried one firearm specification, Ohio Revised Code § 2929.71(A), and two capital specifications: a course-of-conduct specification, Ohio Revised Code § 2929.04(A)(5), and a felony-murder specification of kidnapping, Ohio Revised Code § 2929.04(A)(7). Hutton also was indicted for kidnapping Mitchell and Samuel Simmons Jr. ("Simmons"), in violation of Ohio Revised Code § 2905.01, and for the attempted murder of Simmons, in violation of Ohio Revised Code § 2911.11. Each count carried a firearm specification. Hutton entered a plea of not guilty to all charges.
The Ohio Supreme Court set out the following factual history, as adduced by the evidence presented at trial, upon considering Hutton's direct appeal of his convictions and sentence:
On Friday, September 13, or Saturday, September 14, 1985, Percy "June" Hutton confronted Samuel Simmons, Jr. outside Simmons's home and accused him of stealing a sewing machine belonging to Hutton. Claiming that he had seen Simmons's friend Derek "Ricky" Mitchell trying to sell the machine, Hutton demanded that Simmons give the machine back immediately. Simmons suggested that Hutton "go talk to Ricky."
When Mitchell arrived, Hutton went upstairs with him. When they came back down, according to Simmons, Hutton said that "it wasn't what he was looking for and if he found out we had anything to do with what was missing orstolen he was going to kill us."
The following Monday morning, September 16, Hutton went back to Simmons's home at about 12:00 a.m. and asked him to work on a car. Hutton and Simmons got into Hutton's car, where Bruce Laster was waiting for them. When he got in, Simmons saw a .22 caliber rifle on the back seat. Hutton drove them to Mitchell's house saying, "I want to talk to you and Ricky, man." When they arrived, Simmons told Mitchell that "June wanted to talk to him."
After accusing Mitchell of stealing tires from Hutton's back yard, Hutton demanded the return of his sewing machine, in which he had hidden $750. Mitchell denied taking the machine. Hutton insisted that Mitchell had tried to sell the machine to a Mr. Evans and demanded that Mitchell come with him to Evans's house. According to Simmons, Hutton said: " * * * If Evans said you ain't the one who tried to sell him the sewing machine, * * * I will apologize. If he say you tried to sell the sewing machine, that mean I'm f---ing you up. * * * "
Mitchell and Simmons got into the car. Hutton pointed the rifle at Simmons's side and said that he didn't appreciate Simmons and others breaking into his sister's house.
Instead of going to Evans's house, Hutton drove to a parking lot behind a bus depot on 93rd Street. He ordered Mitchell out of the car. Mitchell and Hutton walked away from the car so that Simmons could not hear their conversation, but he saw Hutton put a pearl-handled, nickel-plated, .22 caliber automatic pistol to Mitchell's head.
Hutton and Mitchell returned to the car. Following Mitchell's directions, Hutton drove to a building on 30th Street. Hutton and Mitchell went inside for a few minutes and emerged with a white sewing machine case.
Hutton drove to his mother's house, took the case inside, and returned to the car. Hutton drove a short distance and parked in an alley next to a brown El Dorado. Simmons got out. Hutton moved his car to the other end of the street. He then walked back to the El Dorado.
Simmons got behind the wheel as Hutton "went under the hood" and said, "Try to start it." He then walked back to Simmons and shot him twice in the head.
Simmons, unable to move, lay partly in and partly out of the car and cried for help. No one responded. He managed to get up and stagger to two nearby houses to seek aid. Hutton found him pounding on the back door of the second house and told him to get into the car. Telling Mitchell that someone had shot Simmons, Hutton then drove Simmons to St. Luke's Hospital.
At the hospital, Simmons asked Mitchell to go inside with him. Mitchell refused and said they were going to get the person "that did this to you." Simmons then got out of the car and went into the hospital by himself.
At 2:30 a.m., Mitchell, Hutton, and Laster returned to Mitchell's apartment. They woke Mitchell's alleged common-law wife, Eileen Sweeney, and, taking her to the hospital, they dropped her off and left. Sweeney went in to visit Simmons. Telling her that Hutton had shot him, Simmons sent her to warn Mitchell to get out of the car. She went outside, but the car had gone. She never saw Mitchell again.
Half an hour later, Hutton and Laster returned to the hospital. Hutton told Sweeney that Mitchell was home and offered to take her there. Instead, Hutton took Sweeney to a park, where he raped her vaginally and orally. Hutton had a small handgun with a white handle and a silver-colored barrel. During the rape, Hutton advised Sweeney to "forget about" Mitchell because "Ricky wasn't coming back."
After the rape, Hutton took Sweeney home. The door to the apartment had been damaged and the apartment was in disarray. Mitchell was not there. Too "scared and nervous" to drive, Sweeney accepted Hutton's offer to drive her to the home of Mitchell's sister LaWanda. Hutton accompanied Sweeney into LaWanda Mitchell's house. Sweeney testified that "[H]e told me, Ricky wasn't coming back, and if I told[,] someone would be looking for me."
On September 30, a decomposing corpse was found near the intersection of East 88th Street and St. Catherine Avenue, Cleveland. A large tire lay on the corpse. The autopsy disclosed that the body was Derek Mitchell's, and that Mitchell had been shot to death. Two bullets were recovered. A firearms expert identified them as .22 caliber long rifle ammunition that could have been fired from either a rifle or a handgun. The bullets that killed Mitchell had the same class characteristics as a bullet that had been removed from Simmons's head, but the expert could not tell whether all three had been fired from the same gun.
* * *
Hutton's defense was that Mitchell was not killed on September 16, but at some later time when Hutton was in Indianapolis. Denise Richardson testified that she saw Mitchell alive and spoke to him at about 3:00 p.m. on September 17, 1985, the day after the state claimed Mitchell was murdered. According to Hutton, he was in Indianapolis at the time Richardson spoke to Mitchell and stayed there until October 3, except for two brief visits to Cleveland on September 21 and 28. An employee of the Fall Creek branch of the Indianapolis YMCA saw Hutton there sometime after 4:00 p.m. on September 17. Shetestified that he paid rent covering the period September 17 to October 3.
State v. Hutton, 53 Ohio St. 3d 36, 37-39, 559 N.E.2d 432, 436-38 (Ohio 1990).
A. State-Court Proceedings
Hutton's trial commenced on January 3, 1986. He was represented by Attorney Merlin Hill. A jury returned a verdict of guilty as to all counts and the capital specifications on January 29, 1986. The penalty phase of the trial commenced on February 3, 1986. Two days later, on February 5, 1986, the jury recommended that Hutton be sentenced to death. The trial court accepted the jury's recommendation and sentenced Hutton to death on February 7, 1986.
Hutton filed a timely appeal of the trial court's decision to the Eighth District Court of Appeals, represented by Attorney Floyd Oliver. He raised fourteen assignments of error as follows:
I. Death qualification of the guilt phase jury in a capital case violates the Appellant's Fifth, Sixth, Eighth and Fourteenth Amendment rights under the United States Constitution and Article I §§ 2 and 10 of the Ohio Constitution.
II. Imposition of the death sentence violates the Sixth, Eighth and Fourteenth Amendments to the United States Constitution and Article I §§ 2, 9,10 and 16 of the Ohio Constitution.
III. In violation of the Eighth and Fourteenth Amendments to the United States Constitution and Article I §§ 9 and 16 of the Ohio Constitution, the Appellant's sentence of death is inappropriate and disproportionate to similar cases.
IV. The trial court erred in permitting the introduction of evidence of irrelevant prejudicial "other acts" of Appellant, and thereby deprived him of his rights to due process of law and to a fair trial, as guaranteed by the Fourteenth Amendment to the United States Constitution and Article I § 16 of the Ohio Constitution.
V. The trial judge abused his discretion by allowing into evidence a series of gruesome photographs which contained little probative value, thereby denying Appellant's constitutionally guaranteed right to a fair trial.
VI. The trial court erred in...
