Lang v. Bobby
Decision Date | 11 May 2018 |
Docket Number | No. 15-3440,15-3440 |
Parties | Edward LANG, Petitioner–Appellant, v. David BOBBY, Warden, Respondent–Appellee. |
Court | U.S. Court of Appeals — Sixth Circuit |
ARGUED: Michael J. Benza, THE LAW OFFICE OF MICHAEL J. BENZA, INC., Chagrin Falls, Ohio, for Appellant. Brenda S. Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Michael J. Benza, THE LAW OFFICE OF MICHAEL J. BENZA, INC., Chagrin Falls, Ohio, Laurence E. Komp, Manchester, Missouri, Karl Schwartz, LAW OFFICE OF KARL SCHWARTZ, Elkins, Pennsylvania, for Appellant. Brenda S. Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.
Before: SILER, MOORE and GIBBONS, Circuit Judges.
SILER, J., delivered the opinion of the court in which GIBBONS, J., joined. MOORE, J. (pp. 816–27), delivered a separate dissenting opinion.
Edward Lang, an Ohio prisoner under a death sentence, appeals from the district court's denial of his petition for a writ of habeas corpus filed under 28 U.S.C. § 2254. The district court granted Lang a Certificate of Appealability (COA) on his first and second grounds for relief, and we granted an expansion of the COA to include three additional claims.1 These claims can be reduced to two main issues. The first involves a juror who was related through marriage to one of the victims of the homicide, whom the trial court removed from the jury prior to deliberations. The second concerns the nature and volume of mitigation evidence presented by Lang's defense counsel. For the reasons that follow, we AFFIRM the denial of relief by the district court.
In 2006, Lang shot and killed Jaron Burditte and Marnell Cheek during a botched drug deal turned robbery in Canton, Ohio.2 Lang was indicted on two counts of aggravated murder and one count of aggravated robbery with firearm specifications. In 2007, the case was tried before a jury.
After the jury had been empaneled and the first two witnesses had testified, the prosecutor notified the trial court that Cheek's father recognized Juror 386 as the daughter of the woman married to Cheek's brother. The trial court decided to address the issue at the next break, after two more witnesses testified. The court later noted that, because the jurors were in the courtroom, they did not have the opportunity to interact with each other. During the break, the trial court and counsel questioned Juror 386 outside the presence of the other jurors. Juror 386 acknowledged her connection to Cheek and said she had met her once and had attended her funeral. The juror said she learned of Cheek's death from her grandfather and from what she had read in the newspaper; however, she denied talking to her mother, step-father, or family members about the case or learning anything about it. The trial court also questioned Juror 386 about her contact with the other jurors. She denied telling any of them about her connection to Cheek. Juror 386 was excused by agreement of the parties.
Before dismissing her, the trial court confirmed that Juror 386 had not spoken with other jurors and instructed her to have no contact with other jurors:
The trial court then summoned the jurors and told them that Juror 386 was excused because "it was determined that she may have had a relationship with either a witness or a party or somebody that was involved in the case." The trial court asked the jurors as a group whether Juror 386 had talked to them about knowing someone involved in the case. The judge stated: "I take it by your silence that she did not." Neither Lang's counsel nor the prosecutor asked to question the jurors individually. Juror 386 was replaced, and the trial resumed. State v. Lang , 954 N.E.2d at 613. Lang does not claim a motion for a mistrial was made. When the prosecution rested, Lang presented no evidence. The jury returned a guilty verdict on all counts. Thereafter, the trial court held a separate hearing for mitigation evidence and sentencing.
At the mitigation hearing, the jury heard evidence, chiefly from Lang's mother and half-sister, about Lang's difficult and dysfunctional childhood. In his opening statement, Lang's defense counsel, Anthony Koukoutas, said, "I am not here to make excuses." He continued to say, "I want to show you that [Lang] [i]s not just a name on a case file or a name that appears in the newspaper, that he's an actual human being." Counsel then previewed what he expected Lang's mother, Tracie Carter, and Lang's half-sister, Yahnene Robinson, to testify. He emphasized Lang's father's negative qualities and how he abducted, abused, and neglected Lang. He also referred to evidence of Lang's psychiatric problems and the fact that Lang was severely withdrawn and emotionally scarred after living with his father for two years.
The Ohio Court of Appeals summarized Carter's and Robinson's testimony:
, Lithium, and Risperdal for depression and other conditions. Carter made sure that he took these medications on a regular basis. However, Lang did not continue to take them when he was with his father, because Edward did not obtain refills for the prescriptions.
{¶ 325} After returning home, Lang was withdrawn. Lang told Carter that he was fine and did not want to talk to her about what had happened. But Carter learned from her son, Mendez, that Edward had sexually abused Lang.
After Carter and Robinson testified, the prosecutor began his closing argument. He attempted to minimize the testimony of Lang's mother and half-sister, stating, The prosecutor continued to discredit Lang's...
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