Montgomery v. Bobby

• Decision Date: 22 August 2011
• Docket Number: Nos. 07–3882,07–3893.,s. 07–3882
• Citation: 654 F.3d 668
• Parties: William T. MONTGOMERY, Petitioner–Appellee/Cross–Appellant,v.David BOBBY, Warden, Respondent–Appellant/Cross–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

654 F.3d 668

William T. MONTGOMERY, Petitioner–Appellee/Cross–Appellant,

v.David BOBBY, Warden, Respondent–Appellant/Cross–Appellee.

Nos. 07–3882

07–3893.

United States Court of Appeals, Sixth Circuit.

Argued: June 9, 2010.Decided and Filed: Aug. 22, 2011.

ARGUED: Benjamin C. Mizer, Office of the Ohio Attorney General, Columbus, Ohio, for Appellant. Richard M. Kerger, Kerger & Hartman, LLC, Toledo, Ohio, for Appellee. ON BRIEF: Benjamin C. Mizer, Elisabeth A. Long, Stephen E. Maher, Office of the Ohio Attorney General, Columbus, Ohio, for Appellant. Richard M. Kerger, Kerger & Hartman, LLC, Toledo, Ohio, Lori Ann McGinnis, Mount Gilead, Ohio, for Appellee.Before: BATCHELDER, Chief Judge; MERRITT, MARTIN, BOGGS, MOORE, COLE, CLAY, GILMAN, GIBBONS, ROGERS, SUTTON, McKEAGUE, GRIFFIN, KETHLEDGE, and WHITE, Circuit Judges.^*GIBBONS, J., delivered the opinion of the court, in which BATCHELDER, C.J., BOGGS, GILMAN, GIBBONS, ROGERS, SUTTON, McKEAGUE, GRIFFIN, and KETHLEDGE, JJ., joined, with BATCHELDER, C.J. (pp. 685–89), delivering a separate concurrence and WHITE, J. (pp. 689–90), delivering a separate opinion concurring in the judgment. MERRITT, J. (pp. 690–94), delivered a separate dissenting opinion, in which MARTIN, J., joined, with MARTIN, J. (p. 694), also delivering a separate dissenting opinion. CLAY, J. (pp. 694–712), delivered a separate dissenting opinion, in which MOORE and COLE, JJ., joined.

OPINION

JULIA SMITH GIBBONS, Circuit Judge.

In this death penalty case, Warden David Bobby appeals the district court's order granting William T. Montgomery's petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 and its denial of the State's subsequent motion to reconsider that order under Federal Rule of Civil Procedure 59(e). See Montgomery v. Bagley, 482 F.Supp.2d 919 (N.D.Ohio 2007). Although Montgomery asserted forty-eight grounds for relief in the petition, the district court granted the writ based upon a single ground: the State's non-disclosure of an exculpatory pretrial police report, in which several witnesses claimed to have seen one of the victims alive several days after her alleged murder, violated the Supreme Court's precedent in Brady v. Maryland, 373 U.S. 83, 83 S.Ct. 1194, 10 L.Ed.2d 215 (1963). Montgomery, in turn, cross-appeals the district court's denial of his petition on several alternative grounds, including the trial court's retention of a juror undergoing psychiatric treatment, the trial court's denial of Montgomery's motion to change venue in light of negative pretrial publicity, and the State's non-disclosure of other allegedly exculpatory evidence. For the reasons that follow, we reverse the district court's issuance of the writ of habeas corpus and affirm the district court in all other respects.

I.

On the morning of March 8, 1986, the police found Cynthia Tincher's body in her car at the corner of Angola and Wenz Roads in Toledo, Ohio. She had been killed by a single gunshot wound to the head. On the same morning, when Tincher's roommate, Debra Ogle, failed to appear for work, the police listed Ogle as missing. The police located Ogle's abandoned car the following day, although no sign of Ogle existed. On March 11, 1986, acting on a tip from a jailhouse informant, Michael Clark, the police located and questioned Glover Heard in connection with the murder of Tincher and the disappearance of Ogle. At approximately 2:30 p.m. that afternoon, the police brought Heard to the station house, where he provided an initial statement, offering the name of Edward Bruce Ellis as an alibi witness. When interviewed about Heard's alibi on March 11, Ellis, in turn, gave the police the name of the petitioner, William Montgomery.

At about noon on March 12, 1986, while Ogle still remained missing, the police located Montgomery at the home of his uncle, Randolph Randleman. Montgomery stated that he knew the police were looking for him and that he wanted to discuss the homicide. The police then arrested Montgomery pursuant to an outstanding forgery warrant and brought him to the station house, where he was questioned about the death of Tincher and disappearance of Ogle. During the interview, Montgomery admitted that his gun, a Bersa .380–caliber semi-automatic pistol, was the murder weapon. In his initial statement, Montgomery claimed that, following a night of drinking, he gave Heard the pistol in the early morning hours of March 8 for Heard's self-protection on his walk home. Montgomery further claimed that Heard had returned the gun to him later that morning with an empty six-round clip and told Montgomery that Heard had shot and killed both Tincher and Ogle. Montgomery stated that Heard had not disclosed the location of Ogle's body. During subsequent questioning that afternoon, Montgomery changed his statement, admitting that he and Heard had taken a taxi to Tincher and Ogle's apartment on Hill Avenue on the morning of March 8, where they asked Ogle for a ride home. Montgomery stated that Ogle provided a ride to both men after she finished getting ready for work and dropped Montgomery off at his apartment first. He maintained, nevertheless, that Heard had killed both women with his Bersa .380, which Heard had borrowed.

During questioning, Montgomery insisted that, if the police recovered his gun, they would find that it was, in fact, the murder weapon that Heard had used. In an effort to locate the gun, the police permitted Montgomery to make several phone calls. After the calls, Montgomery's mother, Caroline Jones, called the police station and arranged to meet an officer at the Way–Lo gas station near the airport at approximately 6 p.m. Upon meeting the officer, Jones turned over a bag containing a loaded .380–caliber semi-automatic pistol.

On the evening of March 12, 1986, the police formally charged Montgomery with the aggravated murder of Tincher. At this point, Montgomery informed the police that he could help them locate Ogle's body near a market on Hill Avenue. Although he continued to implicate Heard as the killer—and stated that Heard had driven him by the location of Ogle's body—Montgomery directed the police to a wooded area separated by a field off of Hill Avenue, which he identified as the location. As Montgomery waited in the patrol car with Sergeant Larry Przeslawski, officers began searching the wooded area to the left of the field. Montgomery then told Sergeant Przeslawski to instruct the officers to search the wooded area to the right of the field, where Ogle's body was recovered.

On March 25, 1986, the Lucas County Grand Jury returned a two-count indictment charging Montgomery with the aggravated murders of Ogle and Tincher while committing or attempting to commit aggravated robbery, in violation of Ohio Rev.Code Ann. § 2903.01(B) (West 2002). On September 29, 1986, the case proceeded to a jury trial, in which the State argued that Montgomery murdered Ogle while robbing her with the use of a deadly weapon and, in a continuous criminal enterprise, then murdered Tincher, as she was the only person who could place Montgomery with Ogle that morning. To support this theory, the State presented thirty-two witnesses, including several police officers and Heard, who had also been indicted for the aggravated murders of Ogle and Tincher, but who pled guilty to one count of complicity to murder. At trial, the State presented the following evidence through witness testimony and exhibits:

• Montgomery had purchased a .380 caliber semi-automatic pistol and ammunition just weeks before the murders ... [and] was wearing a dark hooded jacket with the hood tied tight around his face when he entered the gun shop to purchase the pistol;

• Montgomery and [Tincher and Ogle] were acquaintances ... [and] [b]oth young women were alive the night of March 7th and the early morning hours of March 8th;

• Montgomery, Heard, another friend, Bruce Ellis, and Montgomery's then girlfriend, Louren, went out drinking on the night of March 7th;

....

• Montgomery was wearing a blue pin striped suit jacket and jeans that night;

• Later in the morning of March 8th, Montgomery, Louren, and Heard went to Montgomery's uncle's house, where a very drunk Montgomery was arguing with Louren until his uncle broke it up;

• After defusing the argument, Montgomery's uncle, Randleman, took a gun away from Montgomery and put it and its clip on top of the refrigerator;

....

• Montgomery and Heard then left the Randleman residence, both passing through the kitchen where the gun was on top of the refrigerator, to get in a cab;

• Montgomery was armed with a .380 caliber pistol the morning of March 8th;

• The cab took Montgomery and Heard to Ogle and Tincher's apartment on Hill Avenue at Montgomery's direction, [where] ... [b]oth Montgomery and Heard entered the apartment;

• Ogle was getting ready to go to work and Tincher, although she popped out to say hello, was still in bed;

• Ogle agreed to give Montgomery and Heard a ride to Montgomery's mom's apartment on Airport Road;

• Montgomery, sitting in the front seat, gave Ogle the directions and eventually told her to stop on the side of the road on Hill Avenue;

• Ogle and Montgomery got out of her car and walked roughly forty yards into a field or wooded area off Hill Avenue;

....

• Heard heard two gunshots [and] ... saw Ogle's body laying on the ground; • Montgomery rushed back to Ogle's car and motioned for Heard to get in the front passenger's seat as Montgomery got into the driver's seat ... [and] drove Ogle's car back to the victims' apartment complex;

• Montgomery picked a gun up off the floor of the car, exited the vehicle, and told Heard to take the car;

• Heard then left in the car and took Ogle's wallet as he abandoned the car roughly one block from his home;

• A black person wearing a dark hooded jacket with the hood tied tight around her or his face left Tincher's car the morning Tincher was found at Angola and Wenz Roads;

• On March [8]th,...