Resnover v. Pearson

• Decision Date: 14 January 1991
• Docket Number: Civ. No. S88-128.
• Parties: Gregory D. RESNOVER, Petitioner, v. Linley E. PEARSON, Attorney General, State of Indiana; and Richard Clark, Respondents.
• Court: U.S. District Court — Northern District of Indiana

754 F. Supp. 1374

Gregory D. RESNOVER, Petitioner, v. Linley E. PEARSON, Attorney General, State of Indiana; and Richard Clark, Respondents.

Civ. No. S88-128.

United States District Court, N.D. Indiana, South Bend Division.

January 14, 1991.

COPYRIGHT MATERIAL OMITTED

Charles A. Asher, South Bend, Ind., for petitioner.

David A. Arthur, Deputy Atty. Gen., Indianapolis, Ind., for respondents.

MEMORANDUM AND ORDER

ALLEN SHARP, Chief Judge.

In the early morning hours of December 11, 1980, now a decade ago, Indianapolis Police Sergeant Jack Ohrberg was killed in a shootout at 3544 North Oxford Street in that city. On December 12, 1980, the prosecuting attorney for Marion County, Indiana filed an information charging Gregory Resnover and Tommie Smith with one count of murder and one count of conspiracy to commit murder and requested the death penalty. The charges were filed and heard in the Marion County Superior Court Criminal Division at Indianapolis, Indiana, and the trial which was conducted before the Honorable Jeffrey Boles as Special Judge occurred between June 24 and June 30, 1981, resulting in a conviction of both defendants and the imposition of the death penalty. Gregory Resnover was represented at trial by court-appointed counsel Thomas Alsip.

A direct appeal was taken to the Supreme Court of Indiana which unanimously affirmed the aforesaid conviction and sentence in Resnover v. State, 460 N.E.2d 922 (Ind.), cert. denied, 469 U.S. 873, 105 S.Ct. 231, 83 L.Ed.2d 160 (1984), in an opinion authored by Justice Pivarnik. In a direct appeal, Gregory Resnover was represented by court-appointed counsel, Dawn D. Duffy of the law firm of Buck, Barry, Landau, Breunig and Quinn in Indianapolis, Indiana. In that appeal, and on the appeal from denial of the first post-conviction relief petition, the Supreme Court of Indiana was unanimous. In the third appeal dealing with the second petition for post-conviction relief, Justice DeBruler dissented and it is necessary to pause a moment to consider the dimensions of his dissent. In the subject matter of that case was the alleged ineffective assistance of counsel Paul Levy in the post-conviction proceeding.

On October 10, 1984, this petitioner, appearing by counsel, Paul Levy, a deputy public defender of the State of Indiana, filed a petition in the Marion Superior Court Criminal Division for post-conviction relief. That proceeding was heard by the Honorable John W. Tranberg who denied the aforesaid petition on July 19, 1985. An appeal was taken to the Supreme Court of Indiana, which upheld the denial of post-conviction relief in a unanimous opinion authored by Justice Given reported as Resnover v. State, 507 N.E.2d 1382 (Ind. 1987), cert. denied, 484 U.S. 1036, 108 S.Ct. 762, 98 L.Ed.2d 779 (1988) (Justices Brennan and Marshall dissenting on the basis of their dissention in Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976)).

On March 2, 1988, Gregory Resnover filed a second post-conviction relief petition in the Marion Superior Court, Criminal Division, in which he was represented by counsel Brent Westerfield of Indianapolis, Indiana. On October 31, 1988, the second petition was dismissed by the state trial judge without a hearing. A direct appeal was taken to the Supreme Court of Indiana, which, in an opinion by Justice Pivarnik, upheld the state trial judge's dismissal in Resnover v. State, 547 N.E.2d 814 (Ind.1989), cert. denied, ___ U.S. ___, 111 S.Ct. 216, 112 L.Ed.2d 175 (1990) (Justice Marshall dissenting on the Gregg v. Georgia, 428 U.S. 153, 96 S.Ct. 2909, 49 L.Ed.2d 859 (1976) basis).

On May 2, 1988, the petitioner, Gregory D. Resnover, filed the within petition seeking relief under 28 U.S.C. § 2254. That petition was filed on his behalf by Attorney Thomas Anthony Durkin of Chicago, Illinois, an attorney with long, in-depth experience in the criminal justice system in general, and in death penalty litigation in particular. It should be noted that on February 12, 1990, Attorney Durkin filed an amended habeas corpus petition for this petitioner seeking relief under 28 U.S.C. § 2254.

The basic facts as found by the Supreme Court of Indiana in 460 N.E.2d at 926, are as follows:

The evidence adduced during trial showed that at approximately 3:00 a.m. on December 11, 1980, Indianapolis Police Sergeant Jack Ohrberg met Sergeant Lewis J. Christ to serve papers on certain individuals believed to be at 3544 North Oxford Street in Indianapolis. Sergeant Ohrberg and Christ subsequently were joined by other officers before arriving at the duplex residence at 3544 North Oxford at approximately 5:30 a.m. With Officers Schneider and Harvey standing watch in the rear, Ohrberg, Christ and Officers Ferguson and Foreman proceeded to the porch and front door. Foreman and Ferguson were in uniform. Ohrberg knocked loudly several times and identified himself as a police officer. He then went to 3546 North Oxford, the adjacent other half of the double residence, and checked with Sandra Richardson to ascertain whether any persons were known to be inside the 3544 address. Richardson told Ohrberg that she had heard noise from 3544. Ohrberg returned to 3544 and again pounded on the front door and announced himself as a police officer. Ohrberg then assumed a crouched position and started to use his right shoulder to batter the door which, after a few hits, began to open. Ohrberg continued to hit the door placing his body partially inside the door. Foreman was shining a flashlight over Ohrberg's head since it was dark inside the residence and Foreman wondered why the front door would not fully open. Looking inside the house, Foreman saw some furniture blocking the door. Sergeant Christ also saw the furniture. As Foreman looked inside, he suddenly saw a burst of muzzle flashes and heard two, possibly three, shots in quick succession. The simultaneous muzzle blasts came from two separate locations approximately eight to ten feet apart. Christ also heard shots emanate from inside the residence. Ohrberg said: "Oh no, I've been shot" or "I've been hit" and then stepped back two steps, sank to his knees and collapsed on the porch. Taking cover, Christ saw a person with an "Afro" type hairstyle emerge from the dark doorway onto the porch and fire at least two additional shots into Sergeant Ohrberg. Shots also were being rapidly fired from within the residence. When Christ returned the gunfire, the man on the porch quickly retreated inside the building. Ferguson also saw the person stand over Ohrberg and fire his rifle into Ohrberg. Ferguson specifically testified that he could see the muzzle flash as the rifle was fired. Ferguson fired at the gunman and then ran around the corner of the house where gunfire continued to be directed at him. After more shooting, a man identifying himself as "Gregory" called from inside the house and said "Let's talk." "Gregory" stated that there was an injured man inside and offered to send out the two women occupants. Christ refused to accept the women and ordered "Gregory" outside. "Gregory" then said that he would come out whereupon he stepped to the door, threw a weapon out into the front yard and walked onto the front porch with his hands raised. Christ identified this man as Appellant Gregory Resnover and identified an AR-15 rifle as similar to the weapon Appellant threw into the front yard. Ferguson also identified the man as Gregory Resnover. Earl Resnover subsequently followed appellant out onto the front porch where he laid down an AR-15 rifle and a Smith and Wesson revolver. Two women lastly walked out of the house leaving wounded Tommy Smith alone in the building. Foreman testified that the four came out of the house approximately ten to fifteen minutes after the initial burst of gunfire.

Forensic pathologist Dr. James A. Benz performed an autopsy on the body of Jack Ohrberg. Benz testified that Ohrberg died as a result of multiple gunshot wounds. He specifically testified that one bullet perforated Ohrberg's abdominal wall and external iliac artery and completely severed his iliac vein. Another shot lodged in the soft tissues of Ohrberg's back after fracturing parts of two vertebrae. A third shot entered his left side, fractured his tenth rib and bruised his lung. There were 600 milliliters of blood in Ohrberg's abdominal cavity.

The weapons thrown into the front yard or left on the front porch were collected by Russell Bartholomew, a crime lab technician. Bartholomew testified that the weapon thrown down by Appellant was an AR-15 automatic rifle with live rounds. The weapons on the porch were another loaded AR-15 and a loaded .38 caliber Smith and Wesson revolver. Evidence technician Cosmos Raimondi recovered weapons, ammunition clips, bullets and shell fragments from inside the house after it was secured by police. Raimondi testified that he found:

— one AR-15 rifle without clip but with one live round chambered; the rifle's clip was located nearby damaged but containing twenty-five live rounds;

— one .30 caliber Universal carbine with one round chambered and a clip containing twenty-five rounds;

— one rifle clip concealed in a bathroom light fixture;

— one Mauser 7.65 automatic pistol recovered from underneath the front room sofa with one round chambered and one five round clip;

— fifteen spent shell casings recovered from the front room and kitchen;

— twelve live Smith and Wesson rounds for a .38 caliber Special pistol;

— one .223 ammunition clip with twenty-five live bullets discovered hidden underneath the front sofa;

— one ammunition pouch with seven live automatic bullets found underneath a cushion on the front sofa;

— fifteen Smith and Wesson Specials and one WW .38 Special found lying loose on a coffee table;

— one Memorex casette (sic) box with fifteen live .38 caliber bullets;

— one AR-15 clip with thirty live .223 caliber bullets discovered in the rear bedroom; and

— one black shaving case containing one

...