U.S. v. Bruscino, s. 80-2336
| Decision Date | 20 October 1981 |
| Docket Number | 80-2337,Nos. 80-2336,s. 80-2336 |
| Citation | 662 F.2d 450 |
| Parties | 9 Fed. R. Evid. Serv. 1380 UNITED STATES of America, Plaintiff-Appellee, v. Ronnie Joseph BRUSCINO and Charles Eugene Kell, Defendants-Appellants. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Mary M. Runnells, Bloomfield, Ind., Robert F. Hellman, Jessie A. Cook, Terre Haute, Ind., for defendants-appellants.
Lloyd Bryce Monroe, Asst. U. S. Atty., Virginia Dill McCarty, U. S. Atty., Indianapolis, Ind., for plaintiff-appellee.
Before CUDAHY, Circuit Judge, and GIBSON * and FAIRCHILD, Senior Circuit Judges.
On October 30, 1978, Robert Martinez, an inmate at the federal penitentiary in Terre Haute, Indiana, died as a result of head injuries inflicted by blunt force approximately an hour before his death. Shortly after Martinez was discovered, defendant-appellant Ronnie Bruscino, a fellow inmate at Terre Haute, was apprehended on suspicion of the murder and placed in segregation. Defendant-appellant Charles Kell, also an inmate at Terre Haute, was confined to segregation as a suspect the following day. Over one year later, on December 19, 1979, Bruscino and Kell were indicted for conspiracy to murder Martinez 1 and for the murder itself. Following a jury trial, Bruscino was found guilty of conspiracy and of first degree murder. Kell was convicted of conspiracy and second degree murder.
Bruscino and Kell raise numerous issues on appeal. We conclude that the jurors' exposure to extraneous, prejudicial material during the trial tainted the verdicts against both Bruscino and Kell. We therefore reverse and remand for further proceedings consistent with this opinion.
Co-defendant Howell, an inmate serving time for bank robbery and conspiracy to escape and who had previously pled guilty to second degree murder of Martinez, see note 1, supra, was the government's chief witness regarding the murder. He stated that he first met Bruscino in 1977, at the United States Marshal's office in Los Angeles, California. The next time he saw Bruscino was in late September, 1978, in the prison yard at Terre Haute. Bruscino had been transferred to Terre Haute from the penitentiary at McNeil Island, Washington. Bruscino told Howell then that Robert Martinez was a "rat." A week later, Bruscino asked Howell to befriend Martinez so that Howell could lure Martinez to a place where they could kill him. Howell tried befriending Martinez a couple of times by sharing marijuana with him, but failed to establish any rapport.
In October, 1978, on the day Bruscino learned that he was to be transferred back to McNeil Island, Howell, Bruscino, Barron, Norman and Kell had lunch together. Bruscino told them of the impending transfer and said that he didn't want to go back because "he hadn't got Chino yet." Howell could not point to anything specific regarding Kell's participation in the ensuing conversation. Bruscino later told Howell that he was going to fake a back injury to delay his transfer.
On October 30, 1978, the morning of the murder, Howell and Hebb, another inmate, practiced garrotting with Bruscino in the kitchen of the prison. They decided that they could not garrote Martinez because he could not be lured into the vegetable room at the back of the kitchen. Howell testified that the three of them then joined co-defendants Norman, Barron and Kell for lunch. At lunch they decided that Kell was to lure Martinez into the small weight room in the gymnasium complex, with the promise of heroin supplied by Barron. Howell was unable to testify as to who exactly said what, but he thought Kell said "cool." On cross-examination, Howell stated that he couldn't remember Kell's exact words but that he did acknowledge an agreement.
After supper that night, Howell met Bruscino in the small weight room. Howell stated that Bruscino went in and out of the room periodically, and Howell eventually went upstairs to the arts and crafts room. When Howell returned, Bruscino was still alone, but this time he was wearing an extra set of clothes. Howell stated that Bruscino then told Howell that Norman would bring Martinez into the small weight room and while they were fixing heroin, Bruscino "would hit him over the head and take him out." Howell and Kell, whom Howell had not yet seen that evening, were to guard the door leading from the gymnasium corridor into the restroom and the small weight room. 2 Howell testified however, that he did not communicate to Kell in any way that it was Kell's responsibility to help guard the door. Neither did he know whether anyone else had told Kell about this assignment. While Howell and Bruscino were talking, Norman brought Martinez into the small weight room. Howell then moved from the small weight room into the restroom, where he began talking to Kell, who had come in and was washing daubers and dye materials in the sink. Two inmates came in and used the urinals. Then Butcher, another inmate, walked into the small weight room asked to use a set of small weights, said a few words to Howell and Kell, and left. Howell told Kell that it would be stupid for Bruscino to do anything now, because Butcher had seen all of them.
Howell was about to leave when Bruscino called from the small weight room for Howell to come help with a bar. When Howell walked in, he picked up a 25 pound weight lying on a weight bench. He saw Martinez and Norman kneeling at the weight bench in the corner, cooking heroin in a spoon. Howell then watched Bruscino raise a weight in the air and crash it down on Martinez' head. At this point, Norman grabbed the narcotics paraphernalia, ran into the restroom and flushed it down the toilet. Bruscino grabbed Martinez and started to drag him toward the shower stall in the restroom. Howell heard Bruscino say, "He doesn't look dead to me." Bruscino then picked up the weight and began hitting Martinez again. While Bruscino was hitting Martinez, Howell saw a black inmate come in, who asked for a match. Howell said he didn't have one. Norman gave him a match and the inmate left. Howell then noticed that Martinez' body had been moved, and institutional clothing put over the head. Only Bruscino was left in the room. Howell told Bruscino to get rid of his pants, which had blood splattered on them.
Bruscino and Howell then left the restroom and went upstairs to the arts and crafts area. Bruscino went to the leather room. Howell went to the art room and arranged for the art room instructor, inmate Honore, to sign both him and Bruscino in on the art room roster. When the 8:00 p. m. movement began, Howell went to his cell. He and his cellmate Barron checked Howell's clothes for blood and scrubbed Howell's shoes in the event Howell had stepped in blood. They then shot up with heroin and Howell walked down to the day room. Howell also stated that he did not see Kell leave the restroom and did not see Kell again that night after Bruscino called Howell into the small weight room.
Inmate Hebb testified that Bruscino entered Hebb's cell shortly after the 8:00 p. m. movement began. Hebb stated that while he watched for a corrections officer, Bruscino ripped his clothes apart and flushed them down the toilet. Bruscino put on a T-shirt and pants from Hebb's cell, and gave Hebb the shoes he was wearing. Hebb later threw the shoes in the garbage.
Martinez' body was discovered shortly after the 8:00 p. m. movement by inmate Gusan, who summoned prison officers for help. Khaki pants, a short-sleeved Khaki shirt and fatigue jacket and two towels were found in the restroom. The pants, short-sleeved shirt and both towels had Martinez' blood on them. The short-sleeved shirt had one Negroid head hair in the pocket, and there was brown Caucasian hair on the fatigue jacket.
Hebb's testimony corroborated Howell's version of the conspiracy. Bruscino told Hebb about his plan to stage an accident and delay his transfer to McNeil Island so that he could take care of "unfinished business." The night after Bruscino dropped his weights and allegedly feigned a back injury, Hebb saw Bruscino in Kell's cell and heard Bruscino say "there had to be some way in order to get him down there." He did not hear who Bruscino was referring to, nor did he know whether Kell responded.
Hebb stated, however, that the discussion on the day of the murder, regarding Bruscino's plan for Kell to lure Martinez, took place at supper, rather than lunch, as Howell had testified. He stated that he saw Howell and Bruscino sitting together at lunch, but that they didn't talk about anything in particular. He then testified that he saw Bruscino at dinner, sitting with Kell, Howell and Barron. Hebb did not join them, however, but sat at the table directly behind them. He testified that he asked Bruscino if he were going to the gym that evening and Bruscino said "No, that he had some business to take care of." Hebb did not testify to any statement Kell may have made during the conversation. (Howell, however, had testified that he (Howell) did not eat dinner that night.)
Inmate Smith testified that Bruscino, on the morning of the murder, tried to persuade Smith, who worked in the dining room with Bruscino, to lure Martinez into the milk freezer off of the kitchen. Smith told Bruscino that this idea probably wouldn't work as Martinez did not know Smith. Smith also testified that he had gone to the gymnasium during the 7:00 p.m. movement. He bought some marijuana from Barron, who was shooting pool in the poolroom next to the gymnasium, and saw Bruscino, Kell and Norman. He then joined inmates Sawyer and Fay on the bleachers in the basketball court. After a few minutes, Sawyer left and headed for the corridor. Smith said he noticed Kell, Norman and Martinez standing in the doorway to the gym when Sawyer left, but that they were not there when Sawyer returned approximately five minutes later.
Both Bruscino and Kell took the stand and denied every...
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