Roche v. Anderson

• Court: U.S. District Court — Northern District of Indiana
• Writing for the Court: Allen Sharp
• Citation: Roche v. Anderson, 132 F.Supp.2d 688 (N.D. Ind. 2001)
• Decision Date: 06 February 2001
• Docket Number: No. 3:98 CV 347 AS.,3:98 CV 347 AS.
• Parties: Charles E. ROCHE, Jr., Petitioner, v. Ron ANDERSON, Superintendent, Indiana State Prison, Respondent.

132 F.Supp.2d 688

Charles E. ROCHE, Jr., Petitioner, v. Ron ANDERSON, Superintendent, Indiana State Prison, Respondent.

No. 3:98 CV 347 AS.

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

February 6, 2001.

COPYRIGHT MATERIAL OMITTED

Alan Freedman, Chicago, IL, Marie F. Donnelly, Charlottesville, VA, for petitioner.

Geoffrey Slaughter, Indianapolis, IN, for respondent.

MEMORANDUM AND ORDER

ALLEN SHARP, District Judge.

Petitioner, Charles E. Roche, Jr.¹, was convicted of murder in a state court trial conducted in Lake County, Indiana, and was sentenced to death by the judge conducting that trial after the jury failed to make a recommendation either for or against the death penalty. The amended petition was filed by counsel in this Court on April 28, 2000 and oral argument was heard in South Bend, Indiana on October 24, 2000. This Court greatly appreciates the high degree of professional competence displayed by appointed counsel for this petitioner.

The extensive state record has been filed and examined by this Court under the mandates of Townsend v. Sain, 372 U.S. 293, 83 S.Ct. 745, 9 L.Ed.2d 770 (1963) and under the mandates of the Antiterrorism and Effective Death Penalty Act (AEDPA) 28 U.S.C. § 2244(b). Immediate reference is made to the two decisions in this case by the Supreme Court of Indiana, namely Roche v. State, 596 N.E.2d 896 (1992), and Roche v. State, 690 N.E.2d 1115 (1997). This petitioner is now confined on death row at the Indiana State Prison in Michigan City, Indiana in this district.

I. Factual and Procedural Background

In early 1990, Edward Niksich told his live-in girlfriend, Patricia Andrasco, that Ernest "Pee Wee" Graves had stolen $120 in food stamps from Andrasco's car when Niksich gave him a ride home. T.R. 1604-05.² In the early evening of May 10, 1990, Niksich and Roche went to the Spot Bar in Calumet City, Illinois. T.R. 1694. Graves was there with a friend named Danny Brown, and Niksich pointed out Graves to Roche as the individual who had stolen the food stamps. Id. Niksich and Roche then set up a phony drug deal with Graves, and Graves and Brown returned to the Roche house with Niksich and Roche. T.R. 1812.

Once at the Roche home, Roche and Niksich took Graves and Brown to Roche's basement and Roche went upstairs to get a gun. T.R. 1812. Roche told his girlfriend, Delores Duszynski, to stay in the bedroom because he was going to shoot some guys in the basement who had stolen money from Niksich. T.R. 1031. Roche then returned to the basement, and Delores heard approximately 9-10 gunshots, followed by a brief pause, then a couple more gunshots. T.R. 1033-34. After the gunshots, Roche, Niksich, and Roche's father, Charles Roche, Sr., returned to the bedroom. Roche told Delores that all the men had on them was $19.00 and a dime bag of cocaine. T.R. 1035. Roche cut the cocaine, and Roche, Niksich and Delores each did a line of cocaine. T.R. 1036-67.

Roche, Niksich, and Roche, Sr. then loaded Graves' and Brown's bodies into the trunk of Delores' car and left the house. T.R. 1038-39. Jose Sanchez saw Roche, Niksich, and Roche, Sr. driving that evening, and Roche stopped to offer Sanchez a ride home. T.R. 950-951. Once at Sanchez's home, everyone got out of the car, and Roche opened the trunk and showed the two bodies in the trunk to Sanchez. T.R. 953, 955. The group then went inside Sanchez's house. T.R. 956. While there, Niksich told Sanchez that he had shot one of the victims in the head in the basement of Roche's home. T.R. 959. Niksich also told Sanchez that he had told one of the victims that he was going to die because he was with the wrong man at the wrong place at the wrong time. T.R. 960. Roche told Sanchez that he had shot one victim once in the chest and once in the head. T.R. 964.

Roche, Niksich, and Roche, Sr. then left Sanchez and drove to an access road off of Cline Avenue in Hammond, where they dumped the bodies after removing the wallets from them. T.R. 2231-32. The three then returned to Roche's home. T.R. 1133-34. Later that night, a neighbor saw a bonfire behind Niksich's home, next door to Roche, and three shadows around the bonfire. T.R. 1135. On his return home, Niksich told Andrasco that he had gotten even with "Pee Wee" (Graves) for stealing the food stamps. T.R. 1601.

Security guard Randall Bowman saw two bodies lying in the roadway at the intersection of 9th Avenue and the Cline Avenue service road in the early morning hours of May 11, 1990. T.R. 867. Bowman then returned to his office and called the police. T.R. 867-868. Lake County Sheriff's Department evidence technician Ronald Lach arrived at the scene at approximately 12:30 a.m. on May 11, 1990. T.R. 877. Lach photographed the bodies, gathered a cigarette at the scene, and noted the absence of any identification on the bodies. T.R. 896. He then went with the bodies to the Guy and Allen Funeral Home where the autopsies were conducted. T.R. 898.

Doctor Kim, a pathologist for the Lake County Coroner's Office, performed the autopsies on Graves and Brown. T.R. 1417-18. Dr. Kim found six gunshot wounds on Brown, on the left side of the chest, on the left side of the head, and four on the right side of the face. T.R. 1421, 1423, 1424-25, and 1427. Dr. Kim determined that Brown had died as a result of extensive fracturing of his skull and laceration of the brain due to gunshot wounds. T.R. 1428. Additionally, Dr. Kim also found that perforations of Brown's stomach and small intestines and internal hemorrhaging had contributed to Brown's death. T.R. 1428. Dr. Kim observed seven gunshot wounds on the body of Ernest Graves: on the right upper chest, the right side of the chest, the left side of the back, the left side of the head, the right side of the face, behind the ear, and the left side of the face. 27 T.R. 1433-40. Dr. Kim determined that Graves died as a result of gunshot wounds which caused a perforal injury of his right lung and a perforation of his brain. T.R. 1445. Dr. Kim recovered nine bullets from the bodies of Brown and Graves during the autopsies, three from Brown and five from Graves. T.R. 1415-45.

A day or two after the crime, an article about the crime appeared in the newspaper. T.R. 1044. Roche clipped the article and showed it to Duszynski, claiming responsibility for the crime to her. Id. On May 13 1990, Mother's Day, several neighbors were gathered in Roche's backyard. T.R. 1198. Roche told the others that he had committed a crime and showed them the newspaper clipping. T.R. 1199. Additionally, Roche sold the .38 derringer to his neighbor, James Superits, that day. T.R. 1195.

On May 13, 1990, Jose Sanchez went to the Hammond police and informed them of his knowledge regarding the deaths of Brown and Graves, pointing the finger at Roche, Niksich, and Roche, Sr. T.R. 981. Niksich and Roche, Sr. were arrested the next evening at their homes, along with Duszynski, Andrasco, and Larry Milligan, who rented the back half of Roche's home. T.R. 1080, 1608. Roche was not at home at the time, but later turned himself in to Russ Ewing, a reporter for the ABC affiliate in Chicago. T.R. 2247. Ewing took him to the Gary Police Department, where Roche made a statement saying he was the only person to have shot the victims. T.R. 2252.

While incarcerated at the Lake County Jail, Roche made two different incriminating statements. In a note exchanged with another prisoner (which the other prisoner later stated was dictated by Roche), Roche answered questions about the homicide and took responsibility for the crime, although he stated he wished he had killed Niksich that evening, as it appeared at the time that Niksich might be cooperating with the prosecution. T.R. Ex.25. Later, Roche informed a jailer that he had a handcuff key. T.R. 1689. When he was interrogated by the jail staff regarding his acquisition of the handcuff key, he volunteered information about the homicide, again stating that he was solely responsible for the crime (and thus, obviating any guilt of his father's) and effectively bragging about the crime. T.R. 69, 1708.

An information was filed against Roche on May 16, 1990 before the Honorable Judge James L. Clement³ of the Lake Superior Court. T.R. 201. On May 21, 1990, Noah Holcomb was appointed as counsel for Roche. T.R. 195. Both Niksich and Roche, Sr., by counsel, moved for severance. T.R. 34. Roche, Sr.'s motion was granted, and the prosecutor did not seek the death penalty against Roche, Sr. P.C.R. 2462. Niksich's motion was consistently denied, although he renewed it on several occasions. T.R. 32, 67, P.C.R. 2632. Roche's counsel did not attend any of the severance hearings. P.C.R. 2467, 2501, 2565. Additionally, Niksich moved to suppress the fruits of the search of his home, and that motion was granted; Holcomb did not attend that hearing either. P.C.R. 2565. Nor did Holcomb attend several depositions of prosecution witnesses. Although Judge Clement recommended that co-counsel be obtained, Holcomb did not find co-counsel to assist him in representing Roche. P.C.R. 2496-97.

The trial against Roche and Niksich began on October 29, 1990. T.R. 353. After the presentation of the state's evidence, as detailed above, Roche took the stand in his own defense. T.R. 2198-2367. Roche testified that on May 10, 1990, Niksich had asked him to obtain a quantity of cocaine. T.R. 2202. Roche called Sanchez to arrange the delivery, and Sanchez told Roche he would deliver the cocaine by 10:30 p.m. T.R. 2204-05. Roche then told Niksich to have his buyers at Roche's home by 11:00 p.m. T.R. 2206. Roche and his father, Roche, Sr., then went to a local bar, returning to the Roche home between 10:00 and 10:30 p.m. T.R. 2206-09. Roche then sat in his kitchen waiting for Niksich's buyers to show up. T.R. 2210. Niksich and Roche, Sr. left to purchase some beer. T.R. 2211. While they were gone, Roche testified that he heard noises in the basement, and when no one answered his...