Mcguire v. State Of Ohio

• Decision Date: 31 August 2010
• Docket Number: No. 07-3991.,07-3991.
• Citation: 619 F.3d 623
• Parties: Dennis B. McGUIRE, Petitioner-Appellant, v. State of OHIO; Betty Mitchell, Warden, Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

619 F.3d 623

Dennis B. McGUIRE, Petitioner-Appellant,

v.State of OHIO; Betty Mitchell, Warden, Respondents-Appellees.

No. 07-3991.

United States Court of Appeals,Sixth Circuit.

Argued: Aug. 3, 2010.

Decided and Filed: Aug. 31, 2010.

Rehearing and Rehearing En Banc Denied Oct. 27, 2010. ^*

ARGUED: Gary W. Crim, Dayton, Ohio, for Appellant. Seth P. Kestner, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee. ON BRIEF: Gary W. Crim, Dayton, Ohio, Linda E. Prucha, Office of the Ohio Public Defender, Columbus, Ohio, for Appellant. Seth P. Kestner, Office of the Ohio Attorney General, Columbus, Ohio, for Appellee.

Before: SILER, ROGERS, and SUTTON, Circuit Judges.

OPINION

ROGERS, Circuit Judge.

Capital habeas petitioner Dennis B. McGuire challenges the Supreme Court of Ohio's conclusions that (1) the trial court properly excluded certain hearsay by the victim's husband, (2) appellate counsel was not ineffective in failing to challenge the omission of a catch-all mitigation factor from the jury instructions, and (3) sufficient evidence supports the jury's guilty verdict for rape. The district court properly rejected each of these arguments and denied habeas relief.

McGuire was convicted of the kidnapping, rape and aggravated murder of Joy Stewart, and he was sentenced to death. State v. McGuire, 80 Ohio St.3d 390, 686 N.E.2d 1112, 1114 (1997). On the last day she was seen alive, Joy Stewart visited Juanita Deaton, whose son had hired McGuire to clean the gutters of the Deatons' house. Id. Mrs. Deaton saw Joy Stewart talking to two men outside the house, and testified that McGuire and Joy Stewart left the home at about the same time. Id. McGuire's brother-in-law, Jerry Richardson, testified that while McGuire was at Richardson's house later that afternoon, Joy Stewart arrived and requested marijuana. Id. at 1114-15. McGuire agreed to get marijuana for her, and she left with him in his car. Id. at 1115. Hikers found Joy Stewart's body the next day. Id. The Supreme Court of Ohio described the physical evidence and related testimony:

The front of [Joy Stewart's] shirt was saturated with blood. One deputy sheriff at the scene, Larry Swihart, also noted that there appeared to be a “blood wipe mark” on her right arm. The body was taken to the Montgomery County Coroner's Office, where an autopsy was performed. The autopsy revealed that [Joy Stewart] had been stabbed twice. One wound, located above the left collarbone, caused no significant injury. The critical wound was a four-and-a-half-inch-deep cut in the throat, which completely severed the carotid artery and jugular vein. The doctor determined that [Joy Stewart] was alive when she received the wound, and that such a wound could have been caused by a single-edged blade shorter than four and a half inches, due to “how soft and moveable the tissues are in the neck.” The autopsy also revealed abrasions around the neck, impressed with the cloth pattern of [Joy Stewart's] shirt.

The coroner's office also took vaginal, oral, and anal swabs. The coroner found an abundant amount of sperm on the anal swab, some sperm on the vaginal swab, and none on the oral swab. The coroner indicated that sperm could be detected in the vagina for days or sometimes weeks after ejaculation; however, sperm in the rectum could be detected for a lesser time “because the environment is fairly hostile for sperm, and ... a bowel movement ... usually will purge the rectum of any sperm.”

When McGuire was later imprisoned on an unrelated offense, he discussed the killing with law enforcement officials:

Joseph Goodwin, the corrections officer McGuire initially talked to, took [McGuire] to a private room to talk, where McGuire told him that he knew who had killed Joy Stewart. McGuire stated that Jerry Richardson, McGuire's brother-in-law, had killed [Joy Stewart] with a knife, and appellant could lead investigators to it. McGuire explained to Officer Goodwin that Richardson had wanted to have sex with [Joy Stewart], but she had refused. McGuire claimed that Richardson then pulled a knife on her, and forced her to have oral sex with him. McGuire then said Richardson anally sodomized her because he “couldn't have regular sex with her because she was pregnant.” He also said

Richardson stabbed her “in the shoulder bone” and “cut her throat.”

Based on these details, Goodwin contacted Investigator [David] Lindloff [who had investigated Joy Stewart's killing], who talked to McGuire on December 22, 1989. McGuire told Lindloff that Richardson committed the murder, that he stabbed [Joy Stewart] twice in the neck, and that “the first time it didn't go in. He pulled the knife back out and stuck her again.” Lindloff was interested, since the fact that [Joy Stewart] had been stabbed twice in the neck and anally sodomized had not been revealed to the public at that time. [McGuire] also described in detail the area where [Joy Stewart's] body had been found.

....

A subsequent audiotaped interview by Deputy Swihart elicited further details from McGuire. McGuire claimed that Richardson choked [Joy Stewart] before stabbing her and wiped his bloody hands off on her, both of which actions were consistent with the state of [Joy Stewart's] body at the crime scene. Again, Swihart felt that these details were significant, since they had never become a matter of public knowledge.

Id. McGuire told a friend that he and Richardson had committed a murder and he was planning to blame Richardson for the crime. Id. at 1116. Two of McGuire's fellow inmates also testified at trial:

A fellow inmate at the Preble County Jail, Jack Stapleton, testified that he had overheard a conversation between McGuire and another inmate, in which McGuire claimed that he had seen his brother-in-law rape and murder [Joy Stewart]. However, at one point, McGuire apparently slipped and implicated himself when telling the story. While describing the murder, Stapleton testified that McGuire “had his hand like this describing [ sic ], telling the guy how she was killed. And he said I-he goes I mean he. Stabbed her like this. Hit a bone. It didn't kill her. So he stabbed her again.”

McGuire was later transferred to Madison Correctional Institute. An inmate there, Willie Reeves, testified that McGuire told him that while he was cleaning gutters, [Joy Stewart] showed up asking whether McGuire had any marijuana. McGuire offered to share some with her, and they left in his car. At one point McGuire asked whether she wanted to have sex, and she refused. McGuire then told Reeves he did it anyway. He then explained that because she was so pregnant, it was difficult to engage in sex with her, so instead he anally sodomized her. [Joy Stewart] then became “hysterical,” which made McGuire nervous. He ended up killing [Joy Stewart] for fear that he would go to jail for raping a pregnant woman.

Id.

The coroner's office tested DNA samples collected from the swabs of Joy Stewart's body:

In June 1992, the Montgomery County Coroner's Office sent the vaginal, anal, and oral swabs collected from [Joy Stewart's] body, along with a cutting from her underpants, to Forensic Science Associates, a private laboratory, for DNA testing using the PCR technique. A forensic scientist there compared DNA extracted from the samples with blood samples taken from Dennis McGuire, Jerry Richardson, Joy Stewart, and Joy's husband, Kenny Stewart. The scientist determined that McGuire could not be eliminated as a source of the sperm. Kenny Stewart and Richardson, however, could be eliminated, unless there were two sperm sources, e.g., multiple assailants. This was because

the sperm analyzed contained a DQ Alpha type 3, 4, with a trace amount of DQ Alpha type 1.1, 2. McGuire's DNA was the DQ Alpha type 3, 4, whereas Richardson, Stewart, and the victim's DNA was the DQ Alpha type 1.1, 2. The forensic scientist testified that the trace amount of 1.1, 2 could have resulted either from [Joy Stewart's] epithelial cells taken in the swab, or from a secondary sperm source. The sperm DNA analyzed had characteristics that appear in about one in one hundred nineteen males in the white population.

Id. (footnote omitted). Over McGuire's objection, the trial court excluded from trial a statement by Kenny Stewart, Joy Stewart's husband, to law enforcement officials that he had engaged in anal intercourse with Joy Stewart three or four days before the murder. Id. at 1120. Kenny Stewart committed suicide before the trial began, 4 J.A. 1462, 1477, and the trial court held that his statement was inadmissible hearsay, 686 N.E.2d at 1120. The jury found McGuire guilty of rape, kidnapping, and aggravated murder with the rape specification. Id. at 1114.

At sentencing, McGuire's family and a psychologist testified to McGuire's traumatic youth, childhood marijuana use, and school difficulties. The trial court instructed the jury to consider “all the relevant evidence” and stated that

[Y]ou are going to proceed to weigh the aggravating circumstance which you have already found against the mitigating factors which you will consider and find.

The aggravating circumstance which you have already found is as follows: The offense was committed while the Defendant was committing, or attempting to commit, or fleeing immediately after committing or attempting to commit rape and was the principal offender in the commission of the aggravated murder.

Now, weighing against the aggravating circumstance will be the following mitigating factors:

1) Any residual or lingering doubts about the Defendant's guilt of the offense charged or an aggravating circumstance.

2) The Defendant's potential for rehabilitation.

3) The Defendant's ability to make a well-behaved and peaceful adjustment to life in prison.

4) The Defendant's ability to lead a useful life behind bars if sentenced to life imprisonment.

5) The Defendant's devotion to, and care of, his family members.

6) Whether the Defendant was the victim of childhood

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