O'Rourke v. Endell, No. 97-3728

• Court: United States Courts of Appeals. United States Court of Appeals (8th Circuit)
• Writing for the Court: BOWMAN
• Citation: 153 F.3d 560
• Parties: Michael Robert O'ROURKE; Jeff Rosenzweig, as Next Friend of Michael Robert O'Rourke, Appellees, v. Roger ENDELL, Director, Arkansas Department of Correction, Appellant.
• Docket Number: No. 97-3728
• Decision Date: 17 September 1998

Page 560

153 F.3d 560 Michael Robert O'ROURKE; Jeff Rosenzweig, as Next Friend of
Michael Robert O'Rourke, Appellees,
v.
Roger ENDELL, Director, Arkansas Department of Correction, Appellant. No. 97-3728. United States Court of Appeals,
Eighth Circuit. Submitted April 13, 1998.
Decided July 28, 1998.
Rehearing and Suggestion for Rehearing En Banc Denied Sept.
17, 1998. ^*

Page 563

Darnisa Evans Johnson, Asst. Atty. Gen., Little Rock, AR, argued, for appellant.

Jeff Rosenzweig, Little Rock, AR, argued, for appellee.

Before McMILLIAN, BOWMAN, ¹ and MURPHY, Circuit Judges.

BOWMAN, Circuit Judge.

Roger Endell, Director of the Arkansas Department of Correction (the State), ² appeals from the judgment of the District Court granting a writ of habeas corpus under 28 U.S.C. § 2254 to Michael Robert O'Rourke, who is in state custody pursuant to a conviction of capital murder under Arkansas state law and who is under a sentence of death. We reverse.

I.

We begin with the facts of the crime for which O'Rourke was convicted and sentenced to death, the murder of his parents on July 28, 1983.

The bulk of the most damning testimony against O'Rourke during trial was elicited from Dennis Meadors, O'Rourke's roommate, lover, and accomplice in the murders. Meadors and O'Rourke met in March 1983, several months before the murders, and it was not long after they met that O'Rourke moved into the mobile home in Russellville, Arkansas, that Meadors was sharing with another individual. Meadors testified that O'Rourke told him early in the summer of 1983 that he wanted to kill his parents in order to inherit money, or to receive money as the beneficiary of his parents' life insurance policies. He also testified that O'Rourke had said he would pay for Meadors to go to truck driving school and would buy him a truck, and that they would buy land and build a house. Meadors said that, at least at the time of these discussions, he did not know how O'Rourke would acquire the money to reach these goals.

A few days before the murders, on July 22, 1983, O'Rourke and Meadors purchased a .22 caliber revolver from a pawn shop in Russellville. Meadors was shown as the purchaser of the gun, ostensibly because O'Rourke had a criminal record. Meadors purchased ammunition for the gun elsewhere. Meadors testified that they purchased the gun at O'Rourke's insistence because Meadors allegedly was being threatened by a male acquaintance

Page 564

of a woman with whom Meadors worked. The next day, July 23, Meadors reported the gun stolen from beneath the seat of his unlocked car and, for a reason he could not explain at trial, on July 26 he paid the police department for a copy of the offense report. That same day, the two men headed north in Meadors's car to Table Rock Lake, Missouri, and paid for three days of camping upon their arrival at a campground there. On July 27, they spent the day at Meadors's grandmother's house, which was in Missouri and apparently not far from the campground, doing some yard work for her, and then returned to their campsite.

According to Meadors, O'Rourke woke him at 2:30 a.m. on July 28 threatening him with the supposedly stolen .22 caliber handgun. The two drove from the campsite to the home of O'Rourke's parents in Dardanelle, Arkansas. When they arrived at about 6:30 or 7:00 a.m., they woke Beulah and Francis O'Rourke. Michael O'Rourke took Francis outside, and then shot him twice in the head. Meadors watched the shooting and then went inside the home. O'Rourke followed, telling Meadors to kill Beulah, who was in the kitchen. Meadors hit Beulah several times in the back of the head with a hammer, which he had been carrying but had concealed since their arrival. Meadors testified that Beulah O'Rourke was still alive when she fell to the floor, despite Meadors's bludgeoning, so O'Rourke wrapped her face in plastic wrap in order to suffocate her.

The two men then took great pains to clean up the house, even going so far as to remove compost material from the spot outside where Francis O'Rourke fell and bled after being shot. Meadors and O'Rourke cleaned and clothed the bodies and put them in the hatchback of the elder O'Rourkes' car. They also loaded into the cars various pieces of evidence they believed to be incriminating, and a bag of silver coins O'Rourke retrieved from the garage of the home. O'Rourke drove his parents' car to Sallisaw, Oklahoma, with Meadors following in his car. The car with the bodies in it was left in the parking lot of an apartment complex. En route back to Table Rock Lake, the men discarded the evidence they had taken with them from the O'Rourke home in Dardanelle: disposing of the gun and the hammer in a water supply lake in Oklahoma; throwing some items into the woods in that same area; throwing into a river in Arkansas the compost refuse and the wheelbarrow used to move Francis O'Rourke's body; and burning bloody clothing and rags somewhere in Missouri. The two went by Meadors's grandmother's house that night, "[b]ecause [O'Rourke] wanted to be seen in Missouri so he would have an alibi," Trial Transcript at 517 (testimony of Meadors), and then spent one last night at the campsite. The next day, July 29, O'Rourke and Meadors went to Springfield, Missouri, where they pawned the silver coins taken from the O'Rourke home, receiving $1300.00. The men went to Meadors's grandmother's house again, had lunch, and then returned home to Russellville.

The bodies of Beulah and Francis O'Rourke were discovered in Sallisaw around midnight that night. O'Rourke was notified on July 30, and apparently traveled to Oklahoma to identify the bodies. When O'Rourke and Meadors returned to the O'Rourke home in Dardanelle on August 3, to be certain they had left no incriminating evidence, they were arrested and charged with hindering apprehension or prosecution. Soon after the arrests Meadors began talking to authorities, essentially confessing to the murders but claiming that he became involved only because he feared that O'Rourke would harm him or his family if he did not. He took officers to some of the locations where he and O'Rourke had disposed of evidence. A number of items were recovered, including the gun and the hammer. By August 4, 1983, O'Rourke had been charged with capital murder. ³

II.

We move now to the relevant procedural history of the case.

Page 565

Ernie Witt was appointed by the Yell County Circuit Court on August 19, 1983, to represent O'Rourke. ⁴ During the next three years, several times, O'Rourke was found alternately incompetent to stand trial, and fit to aid in his own defense and proceed to trial. Eventually, in December 1986, O'Rourke was brought to trial, even though he had not spoken to his counsel for at least a year before then and remained mute throughout the trial. In his statements to the jury, Witt essentially acknowledged O'Rourke's participation in the murders; his defense was that O'Rourke was not guilty by reason of mental disease or defect.

The trial, including voir dire, lasted three days. The jury retired to deliberate at 3:30 p.m. on December 3, 1986, and returned with a verdict of guilty of capital murder (the only count on which the jury was instructed) in fifty-three minutes. The sentencing phase of the bifurcated trial was held immediately after the verdict was returned, although neither the prosecution nor the defense offered any additional evidence. The jury returned at 6:13 p.m., after just one hour and eight minutes of deliberation, and recommended a sentence of death, which the court imposed on December 5, 1986. The Arkansas Supreme Court affirmed the conviction and sentence on appeal. See O'Rourke v. State, 295 Ark. 57, 746 S.W.2d 52 (1988).

O'Rourke then filed a petition in the Arkansas Supreme Court, pursuant to Arkansas Rule of Criminal Procedure 37, seeking permission to proceed in the state circuit court with his motion for postconviction relief. At this point he was represented by Jeff Rosenzweig. ⁵ In his petition, he alleged twenty grounds for relief. The Arkansas Supreme Court determined that two of O'Rourke's allegations necessitated an evidentiary hearing in the circuit court: (1) that counsel was ineffective for failing to ask the trial court that the jury be instructed on lesser included offenses and (2) that counsel was ineffective for failing to object to evidence and prosecutorial argument that O'Rourke had invoked his right to be represented by counsel after his arrest. See O'Rourke v. State, 298 Ark. 144, 765 S.W.2d 916, 923 (1989). The circuit court held a hearing and denied relief. Rosenzweig filed an appeal, but then O'Rourke sent a letter to the Arkansas Supreme Court, which the court construed as a pro se motion, seeking to withdraw his appeal and to terminate Rosenzweig as his counsel. The court stayed the appeal and remanded to the circuit court for a competency hearing, ordering the court to "appoint new counsel for the hearing." O'Rourke v. State, 300 Ark. 323, 778 S.W.2d 938, 939 (1989) (per curiam). The court continued: "Mr. Rosenzweig contends that petitioner is insane and that any action on this motion should be deferred pending disposition of the Rule 37 appeal, but counsel is not entitled to make the decision on whether his client is competent." Id. The court said Rosenzweig would continue to represent O'Rourke in his Rule 37 appeal only if O'Rourke were declared incompetent to waive that appeal. Rosenzweig then evidently filed a motion with the supreme court asking to be appointed to advocate the position that O'Rourke was incompetent to waive the appeal. See Transcript of Rule 37 Competency Hearing at 2. Rosenzweig told the circuit court at the competency hearing that the supreme court had denied that motion.

The circuit court appointed Robert E. "Doc" Irwin to represent O'Rourke at the hearing in October 1990, but ordered Irwin to take the position that O'Rourke was competent. O'Rourke would not...