McNeill v. Bagley

• Decision Date: 20 August 2021
• Docket Number: No. 19-3850,19-3850
• Citation: 10 F.4th 588
• Parties: Freddie MCNEILL, Jr., Petitioner-Appellant, v. Margaret BAGLEY, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

10 F.4th 588

Freddie MCNEILL, Jr., Petitioner-Appellant,

v.Margaret BAGLEY, Warden, Respondent-Appellee.

No. 19-3850

United States Court of Appeals, Sixth Circuit.

Argued: May 20, 2021

Decided and Filed: August 20, 2021

Rehearing En Banc Denied September 22, 2021

ARGUED: Justin C. Thompson, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbus, Ohio, for Appellant. Brenda S. Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee. ON BRIEF: Justin C. Thompson, Jacob Cairns, OFFICE OF THE FEDERAL PUBLIC DEFENDER, Columbus, Ohio, for Appellant. Brenda S. Leikala, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellee.

Before: CLAY, GIBBONS, and GRIFFIN, Circuit Judges.

GIBBONS, J., delivered the opinion of the court in which GRIFFIN, J., joined. CLAY, J. (pp. 605–25), delivered a separate dissenting opinion.

JULIA SMITH GIBBONS, Circuit Judge.

Freddie McNeill Jr. was convicted and sentenced to death in Ohio state court for the aggravated murder of Blake Fulton. McNeill appeals the district court's denial of his petition for habeas corpus, in which he argued that the prosecution in his case failed to turn over material under Brady v. Maryland and created a false impression in violation of Napue v. Illinois. The alleged Brady material included two police reports, one summarizing an interview with the prosecution's primary witness, Robert Rushinsky, who initially failed to—but ultimately did successfully—identify McNeill as the culprit, and the other detailing a potential suspect who was quickly dismissed as a suspect by the police. It also included three audio recordings, one of the same Rushinsky interview addressed in the report, a second Rushinsky interview, and a third interview with a potential alibi witness, Marko Roseboro. The warden concedes that these materials were withheld (with the exception of the audio recording of the first Rushinsky interview, which was actually played at trial), but argues that McNeill's arguments are procedurally defaulted and, in the alternative, that none of the evidence was material as defined by Brady . We agree as to the materiality of the evidence and affirm the district court. We also agree with the district court that the prosecution did not create a false impression at trial.

I.

A.

McNeill was convicted of the aggravated murder of Blake Fulton in April 1995 and sentenced to death the following month. The Ohio Supreme Court presented the facts as follows:

On the evening of May 13, 1994, Blake Fulton and Robert Rushinsky drove about the city of Lorain seeking to purchase crack cocaine. Seeing several men they believed to be crack dealers at the corner of Massachusetts Avenue and G Street, the two stopped. As was customary, the first dealer to the car, McNeill, got the sale.

Fulton and Rushinsky knew McNeill from prior drug transactions. Rushinsky, who was riding in the front passenger seat of the two-door car, let McNeill into the back. As McNeill directed, Fulton drove south on Massachusetts Avenue and headed for McNeill's residence, where McNeill stated he kept the crack cocaine. As they drove, McNeill asked Fulton for twenty dollars. Fulton replied: "No. * * * You know how it works. I want to see [the crack] first." Fulton and McNeill continued to argue about the money. When the trio reached McNeill's house, Fulton stopped the car. McNeill produced a gun, saying, "This is a stickup," and "I want the money." Fulton jumped from the car and ordered McNeill out. As Rushinsky leaned forward and opened his door, McNeill grabbed the keys from the ignition and jumped out.

McNeill aimed his gun at Rushinsky and asked if he had any money. Rushinsky replied he had none. McNeill then pointed the gun at Fulton, saying, "You don't think this gun's real?" and "You don't think this thing's loaded?" Fulton told McNeill to return his keys. After further argument, McNeill walked away. Fulton, who was a locksmith, got into his car and attempted to start it using his locksmith's tools.

While Fulton was trying to start the car, McNeill returned. McNeill put his gun to Fulton's head, said, "Played me for a bitch," and shot Fulton. Fulton died several hours later.

The grand jury indicted McNeill on one count of aggravated murder, R.C. 2903.01(B), with a robbery-murder specification, R.C. 2929.04(A)(7), and a firearm specification, R.C. 2941.141. In addition to Rushinsky, four young children who were playing nearby saw and heard many of the events surrounding the murder. The trial judge questioned the children, who were all under the age of ten, and determined they were competent to testify.

State v. McNeill , 83 Ohio St.3d 438, 700 N.E.2d 596, 600 -01 (Ohio 1998) (alteration in original).

Prior to trial, McNeill filed numerous discovery motions requesting, among other things, all material favorable to his defense. The state responded that there was "no evidence known to the State which is favorable to the Defense." DE116-1, Ct. of Common Pleas R., Page ID 900.

The case proceeded to trial. At trial, the prosecution relied heavily on Rushinsky's testimony because Rushinsky had been present with Fulton at the time of the murder. The police had an audio recording of their first interview with Rushinsky, which took place the night of the shooting. During recess, counsel and the court listened to the recording but it was not entered into evidence. The court agreed with McNeill's counsel that the recording revealed inconsistencies in Rushinsky's testimony and allowed counsel to cross-examine Rushinsky on those inconsistencies, including the fact that Rushinsky testified at trial that he knew McNeill, which contradicted his statement in the recording that Fulton was the one who had known McNeill and not Rushinsky. Defense counsel also cross-examined Rushinsky about his drug use, highlighting that Rushinsky was high on crack cocaine and had consumed a significant amount of alcohol at the time of the murder. When asked about the inconsistent statements regarding his prior knowledge of McNeill, Rushinsky said that "[a]t the time of the police [interview] I was upset" and that he was "not lying [on the stand]." DE117-4, Trial Tr., Page ID 4699.

The state bolstered Rushinsky's testimony with the eyewitness testimony of four children who were also present near, or in the vicinity of, the site of the murder. The children were all under the age of ten, and so the court examined them each individually for competency. The court determined that the children were all competent to testify. One of the children, T.R., was specifically familiar with McNeill and able to identify him because the two were neighbors. McNeill's ex-girlfriend, Kimberly Sanford, also testified that McNeill had threatened her with a gun and demanded $30 the same day as the murder.

Following trial, the jury found McNeill guilty of murder. The jury also found proof beyond a reasonable doubt of aggravating circumstances—that McNeill had committed the murder during aggravated robbery. The court found that McNeill's mitigation evidence did not outweigh the aggravating factor and imposed the death penalty.

B.

McNeill directly appealed his conviction to Ohio's Ninth Judicial Court of Appeals. The appellate court affirmed, State v. McNeill , No. 95CA006158, 1997 WL 177635, at *1 (Ohio Ct. App. Apr 1, 1997), as did the Ohio Supreme Court, McNeill , 700 N.E.2d at 601. McNeill unsuccessfully petitioned for certiorari to the United States Supreme Court. McNeill v. Ohio , 526 U.S. 1137, 119 S.Ct. 1792, 143 L.Ed.2d 1019 (1999).

In preparation for postconviction proceedings, McNeill filed a public records request with the Lorain County Police Department ("LCPD"). He requested "[a]ny and all records pertaining to or relating to any and all investigations, arrests, prosecutions and the like of Freddie McNeill, Jr." and "[a]ny and all records pertaining to or relating to the homicide of Blake A. Fulton." DE116-3, Postconviction R., Page ID 2482. The LCPD provided numerous records in response but left out some records that had been disclosed when Fulton's family filed a suit for victim reparations. McNeill's counsel later obtained these undisclosed records. They included a police report (hereinafter "Rushinsky report") detailing Rushinsky's interview with the police on the night of the shooting. The report said that police showed Rushinsky a "photo array of polaroid photos, which included Freddie McNeill," and that Rushinsky "failed to pick out anybody" from the lineup. Id. at Page ID 2479. The report went on to say that during the same interview Rushinsky positively identified McNeill after being shown a succession of mug shot photos. The undisclosed evidence also included a second police report detailing the very early stages of the police investigation. The report detailed an early suspect—"a black male wearing blue jeans and a gray sweatshirt" who had "abandoned a vehicle at" an intersection near where Fulton was murdered. Id. at Page ID 2480. The report concluded by noting that the police located the man and showed him to Rushinsky, who "stated that [the suspect] was not involved [in the shooting]." Id.

In 1996, McNeill moved for postconviction relief in the Ohio courts, bringing nineteen claims for relief. One of these was a claim under Brady v. Maryland , 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963), that the prosecutor had suppressed material and exculpatory evidence: "A statement of Robert Rushinsky which conflicts with his trial testimony ...; [a] description of the clothing worn by Mr. Fulton's assailant which indicates a second or another person was at the crime scene ...; [and a] statement of Kimberly Sanford." DE116-3, Appellate R., Page ID 2090. The allegedly material statements by Rushinsky included the fact that "Rushinsky could not identify Freddie from a polaroid photographic line-up the evening of the shooting," which McNeill argued conflicted with Rushinsky's in court identification. Id. at 2091. The state responded that the...