Schiro v. Clark
| Decision Date | 08 September 1992 |
| Docket Number | No. 91-1509,91-1509 |
| Citation | 963 F.2d 962 |
| Parties | Thomas SCHIRO, Petitioner-Appellant, v. Richard CLARK, Superintendent, and Indiana Attorney General, Respondents-Appellees. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Richard D. Gilroy, Alex R. Voils, Jr., Indianapolis, Ind., for petitioner-appellant.
David A. Arthur, Deputy Atty. Gen., Office of Atty. Gen., Federal Litigation, Indianapolis, Ind., for respondents-appellees.
Before CUMMINGS, WOOD, Jr., * and EASTERBROOK, Circuit Judges.
A broken iron, a shattered vodka bottle, pictures of the lifeless naked body of Laura Luebbehusen covered with blood and bruises, a warning note left for a friend--these trial exhibits relate the nightmarish facts of the case before us.
An Indiana jury convicted Thomas Schiro of the rape and murder of 28-year-old Evansville, Indiana resident, Laura Jane Luebbehusen. For this crime the trial judge sentenced Schiro to death despite the jury's recommendation that Schiro receive a sentence of life imprisonment. Schiro challenged the trial court's imposition of the death penalty in the Indiana Supreme Court, once on direct appeal and two additional times on collateral review. The Indiana Supreme Court affirmed Schiro's conviction and sentence in each case, and the Supreme Court of the United States denied Schiro's petition for writ of certiorari from each of the three Indiana Supreme Court judgments. Schiro sought post-conviction relief from the federal district court for the Northern District of Indiana pursuant to 28 U.S.C. § 2241 and 28 U.S.C. § 2254. In a decision on the merits, Chief District Court Judge Allen Sharp denied Schiro's petition for habeas corpus relief and issued a certificate of probable cause to appeal pursuant to 28 U.S.C. § 2253 and Rule 22(b), Federal Rules of Appellate Procedure. On appeal this Court's jurisdiction stems from 28 U.S.C. § 1291.
Because this case involves the death penalty, and because of the views of three Supreme Court Justices (Brennan, Marshall, and Stevens), we have exercised the meticulous care that such review requires, see Schiro v. Indiana, 493 U.S. 910, 913 n. 9, 110 S.Ct. 268-270 n. 9, 107 L.Ed.2d 218 (1989) (), and have examined the record in its entirety. After thorough review, and for the reasons set forth below, we affirm the judgment of the district court.
The evidence adduced at trial viewed in the light most favorable to the state's case against the defendant reveals the following facts. 1 On February 4, 1981, Thomas Schiro was serving a three-year suspended sentence for robbery, a class C felony, at the Second Chance Halfway House in Evansville, Indiana. R. 113 (pre-sentence investigation report), R. 889-891 (testimony of Kenneth Hood). 2 That facility houses criminals sent for counseling and treatment rather than incarceration. Id. at R. 888-889. While in the work-release program, Schiro worked across the street from Laura Luebbehusen's home. R. 1067-1069 (testimony of Robert Wheeler), R. 204-205 (testimony of Kenneth Hood).
At approximately 7:00 p.m. on February 4, Schiro went to an Alcoholics Anonymous meeting. R. 1435 (testimony of Mary Lee). Instead of staying for his 8:00 p.m. meeting, Schiro went to a liquor store and stole an alcoholic beverage. Id. at R. 1435, 1437. He took the liquor with him and went to see "quarter movies," which were characterized as hard core pornography. Id. at R. 1435, 1437-1439, R. 1743 (testimony of Dr. Frank Osanka). A woman who worked as a cashier at the quarter movie porn shop threw Schiro out when Schiro exposed himself to her. Id. at R. 1743. From there Schiro went directly to Ms. Luebbehusen's apartment. R. 1439 (testimony of Mary Lee). The time then was approximately 9:30 p.m. Id.
Schiro knocked on Ms. Luebbehusen's door and asked if he could use her phone on the pretext that his car would not start. R. 905-906 (testimony of Kenneth Hood) R. 1425 (testimony of Mary Lee). After he pretended to use the phone, Schiro asked to use the bathroom. R. 1425-1426 (testimony of Mary Lee). When he came out of the bathroom Schiro was exposed and Luebbehusen became frightened. Id. at R. 1426. In an attempt to calm her, Schiro told Luebbehusen that he did not want to hurt her, that he was gay, and that he was just trying to win a bet that he could "get it on" with a woman. Id. Schiro went through the small apartment looking for drugs and money. Id. at R. 1746. He came back with drugs and two dildos. Id. Schiro told Luebbehusen to drink some liquor and take drugs as he did. Id. at R. 1745-1746, 1748. Schiro also told Luebbehusen to insert a dildo into his anus but he found that very painful. Id. at R. 1746-1747. Luebbehusen told Schiro that she was gay, that she had been raped as a child, that she had never had sex before, and that she did not want to have sex. Id. at R. 1745, 1747. Schiro then raped her. Id. 3 When Schiro left the room, Luebbehusen tried to leave but Schiro pulled her back in the house, dragged her by her hair, told her not to try to leave again and raped her a second time. Id. at R. 1749. When the liquor ran out, Schiro took her with him to get some more. R. 1441 (testimony of Mary Lee). When they returned to Luebbehusen's home Schiro raped her a third time and then passed out on the couch. R. 1428 (testimony of Mary Lee), R. 1738, 1751 (testimony of Dr. Frank Osanka). When Schiro woke up, Luebbehusen was dressed and headed out the door. R. 1428 (testimony of Mary Lee). Luebbehusen told Schiro that she would not turn him in and was just going to find her girlfriend. Id. at R. 1430. Schiro wouldn't let her leave and Schiro believed that she then fell asleep. R. 1750 (testimony of Dr. Frank Osanka). At that time Schiro decided that he had to kill her so that she couldn't report the rapes. R. 1428-1429 (testimony of Mary Lee). Schiro hit her on the head with a vodka bottle until it shattered. Id. at R. 1428, 1429, 1430. Luebbehusen was fighting Schiro. Id. He picked up an iron and beat her with it; she was fighting him. She was still fighting him when he strangled her to death. Id., R. 647-648 (testimony of Dr. Albert Venables). He then dragged her body from the bedroom to the living room where he performed vaginal and anal intercourse on the corpse and chewed on several parts of her body. R. 44 (psychiatric evaluation By Dr. Bernard Woods), R. 1429 (testimony of Mary Lee), R. 1738, 1751 (testimony of Dr. Frank Osanka).
When Schiro left Luebbehusen's house he took one of the plastic dildos with him and threw it in the trash behind a tavern in Vincennes. R. 1431 (testimony of Mary Lee). Schiro also took gloves that he had been wearing so as not to leave any fingerprints. Id. at R. 1432, 1433. He gave the gloves to his girlfriend Mary Lee who washed them, cut them in little pieces and threw them away. 4
The following morning, February 5, 1981, Luebbehusen's roommate Darlene Hooper and her ex-husband Michael Hooper discovered Luebbehusen's body near the doorway. R. 439 (testimony of Michael Hooper). Luebbehusen's legs were spread apart and her slacks were pulled down around her ankles. Id. at R. 442. She had many bruises and cuts on her body, which included tooth marks, and a vaginal laceration. R. 653, 649, 657, 661-662 (testimony of Dr. Albert Venables). Blood covered the walls and floor, and parts of the house were in disarray. R. 442 (testimony of Michael Hooper), R. 543-547 (testimony of Dennis Buickel). Michael Hooper called the police, who recovered a shattered vodka bottle and a broken iron in addition to other evidence. R. 439 (testimony of Michael Hooper), R. 479, 480, 552-554 (testimony of Dennis Buickel).
A few days later, Luebbehusen's automobile was discovered approximately one block away from the Second Chance Halfway House. R. 939-940 (testimony of Keith Shiver). 5
Because the judicial system has considered Schiro's case for over ten years, this section briefly addresses the major procedural history of Schiro's case. On September 12, 1981, in the Brown Circuit Court, in Nashville, Indiana, petitioner Thomas Nicholas Schiro was convicted of murder while committing or attempting to commit rape, Ind.Code § 35-42-1-1(2) (Burns 1979). On October 2, 1981, Judge Samuel R. Rosen pronounced a sentence of death despite a jury recommendation to the contrary. Because Judge Rosen imposed the death penalty, the case was automatically appealed to the Indiana Supreme Court. While the case was pending on direct review, the Indiana Supreme Court granted the state's petition to remand the case to Judge Rosen to make written findings of fact regarding aggravating and mitigating circumstances. Judge Rosen affirmed that at sentencing the state had proved the existence of one aggravating circumstance beyond a reasonable doubt--that "the defendant committed the murder by intentionally killing the victim while committing or attempting to commit * * * rape." Trial Court's Nunc Pro Tunc Pronouncement of Sentencing of February 23, 1983. Judge Rosen found no mitigating factors. Id. On direct appeal to the Indiana Supreme Court, Schiro raised numerous issues. He claimed that the Indiana death penalty statute violated the Indiana and United States Constitutions, the trial court erred in imposing the death penalty, the warrant for the search of his room was improperly issued, his confessions were unlawfully admitted into evidence, a letter he wrote regarding his prior criminal acts was improperly excluded from evidence, the jury was not supplied with proper verdict forms, and the pre-sentence report contained improper information. The Indiana Supreme Court rejected each of Schiro's arguments, upheld his conviction and sentence, and remanded the case to the trial court for determination of the date of execution of the death...
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