Zuern v. Tate

• Citation: 336 F.3d 478
• Decision Date: 17 July 2003
• Docket Number: No. 00-3526.,No. 00-3543.,00-3526.,00-3543.
• Parties: William G. ZUERN, Petitioner-Appellee/Cross-Appellant, v. Arthur TATE, Warden, Respondent-Appellant/Cross-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

336 F.3d 478 William G. ZUERN, Petitioner-Appellee/Cross-Appellant,
v.
Arthur TATE, Warden, Respondent-Appellant/Cross-Appellee. No. 00-3526. No. 00-3543. United States Court of Appeals, Sixth Circuit. Argued: February 4, 2003. Decided and Filed: July 17, 2003.

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Lawrence J. Greger (argued and briefed), Dayton, OH, Kathleen A. McGarry (briefed), Glorieta, NM, for Petitioner-Appellee Cross-Appellant.

Timothy D. Prichard (briefed), Charles L. Wille (argued and briefed), Attorney General's Office of Ohio, Capital Crimes Section, Columbus, OH, for Respondent-Appellant Cross-Appellee.

Before: BOGGS, NORRIS, and SILER, Circuit Judges.

OPINION

SILER, Circuit Judge.

Arthur Tate, Warden, appeals the district court's grant of a writ of habeas corpus to Petitioner William G. Zuern on the basis of a Brady violation. Zuern appeals the district court's denial of habeas corpus based on his claims of insufficiency of the evidence, prejudicial conduct by a witness, and juror misconduct. For the reasons stated below, we REVERSE the district court's grant of habeas corpus on the basis of the Brady violation, and we AFFIRM the denial of habeas corpus on all other claims.

I.

On May 14, 1984, Zuern was incarcerated at the Community Correctional Institute ("CCI") in Hamilton County, Ohio. In the latter part of May 1984, Zuern had a conversation with inmate Wayne C. Lewis about the fact that corrections officers failed to give Zuern his full five minutes of telephone time. During the conversation, Zuern expressed general hostility to the officers, saying that "[s]omebody should do something to them sons of bitches." Lewis also had observed Zuern sharpening a straightened portion of a metal bucket hook over the course of three days. Lewis informed a corrections officer that Zuern had a knife or a shank.

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On June 9, 1984, inmate Loyal Hearst informed Deputy Kenneth Schweinefuss that Hearst and Zuern had argued the day before and that Zuern stated he was going to kill Hearst. Hearst also said that Zuern had a homemade knife which he had sharpened on his cell floor. Schweinefuss recorded this information in a memorandum. That evening, officers were ordered to search Zuern's cell, among others. Before the officers arrived at Zuern's cell, Zuern received a tip from another inmate that the officers were coming to search his cell.

At approximately 10:20 p.m., Officers Joe Burton and Phillip Pence arrived to perform the search and found Zuern lying naked in his bunk. Officer Pence ordered Zuern to get to his feet. Zuern then stood at the door of the cell. Pence unlocked the cell and told Zuern to come out and put his hands against the wall. Zuern lunged at Pence, fatally stabbing him in the chest with the metal shank. The weapon was a long dagger-like piece of metal, approximately seven inches long. One end was sharpened to a point, and the other was curved into a loop.

II.

Zuern was indicted for purposely causing the death of another with prior calculation and design in violation of Ohio Revised Code § 2903.01. A jury found Zuern guilty of aggravated murder and recommended a death sentence; the trial judge sentenced Zuern to death. For our purposes, three noteworthy events occurred at trial: (1) the prosecution failed to turn over the memorandum from Schweinefuss; (2) while testifying for the prosecution, Lewis improperly blurted out "[Zuern] is in here for murder, and he won't hesitate to do it again"; and (3) a juror overheard a television broadcast about Zuern's case.

In 1986, the Ohio Court of Appeals affirmed Zuern's conviction and sentence. Later, the Supreme Court of Ohio also affirmed. Ohio v. Zuern, 32 Ohio St.3d 56, 512 N.E.2d 585 (1987).

Zuern's state court collateral appeals were likewise unsuccessful: the Court of Common Pleas dismissed his request for relief without affording him an evidentiary hearing; the Ohio Court of Appeals affirmed the dismissal in State v. Zuern, Nos. C-900481, C-910229, 1991 WL 256497 (Ohio App. December 4, 1991); the Ohio Supreme Court denied his request for further review.

Zuern then sought federal habeas corpus relief, asserting 25 separate grounds or claims for relief. The magistrate judge recommended finding that Lewis's prejudicial statement mandated a writ of habeas corpus. The district court disagreed, but found instead that the failure to turn over the Schweinefuss memorandum (an alleged Brady violation) mandated a writ.

III.

Zuern filed his petition before the effective date of the Antiterrorism and Effective Death Penalty Act (AEDPA). Under pre-AEDPA analysis, "this court reviews a district court's refusal to grant a writ of habeas corpus de novo, but reviews the district court's factual findings for clear error." Coe v. Bell, 209 F.3d 815, 823 n. 2 (6th Cir.2000).

IV.

A. Sufficiency of the Evidence

Zuern was convicted of aggravated murder, which under Ohio Revised Code § 2903.01(A) requires a finding of prior calculation and design. In the second habeas claim, Zuern argues that the facts presented at trial are insufficient to prove beyond a reasonable doubt that he acted

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with prior calculation and design.¹ The relevant jury instructions, to which neither party objected, are as follows:

Prior calculation and design means that the purpose to cause the death was reached by a definite process of reasoning in advance of the homicide, which process of reasoning must have included a mental plan involving studied consideration of the method and the instrument with which to cause the death of another.

To constitute prior calculation, there must have been sufficient time and opportunity for the planning of an act of homicide, and the circumstances surrounding the homicide must show a scheme designed to carry out the calculated decision to cause the death. No definite period of time must elapse and no particular amount of consideration must be given, but acting on the spur of the moment or after momentary consideration of the purpose to cause the death is not sufficient.

It is not necessary that the defendant have a plan to kill a specific individual. Prior calculation and design exists where the defendant plans to kill any member of a certain class of persons, even if he did not know in advance who the particular victim would be. Prior calculation and design in such a situation may be found to exist if the totality of circumstances show a prior calculation and design to kill a member of a certain group.

In reviewing the sufficiency of the evidence to support a criminal conviction, we must determine "whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 61 L.Ed.2d 560 (1979).

No one disputes the fact that the Zuern killed Pence. The only contested issue on this claim is whether Zuern acted with the "prior calculation and design" needed for an aggravated murder conviction. At trial, the jury heard evidence that (1) eleven days before the stabbing, Zuern expressed general hostility toward corrections officers, (2) Zuern had advance notice of the weapons search, (3) instead of hiding the shank or getting rid of it, Zuern kept the shank ready at hand knowing that the search was coming, and (4) when the officers arrived at Zuern's cell, he initially complied with their order to stand in front of the cell door, lunging at Pence only after the cell door had been opened.

State v. Reed, 65 Ohio St.2d 117, 418 N.E.2d 1359 (1981), presented a similar situation. In Reed, the defendant shot and killed a police officer who had stopped his car to investigate a botched robbery. Other than the evidence regarding the shooting itself, the only evidence of prior calculation and design was a statement Reed made to a classmate approximately a month before the shooting that "if a cop got in his way (during a robbery) he would blow him away." Id. at 1361.

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The Ohio Supreme Court reversed the conviction, finding insufficient evidence of prior calculation and design:

In the case at bar, the evidence regarding the killing at most indicates the presence of instantaneous deliberation. The statements appellant made to a classmate that he would kill any police officer who got in the way of a crime he might commit do not show that appellant designed a scheme in order to implement a calculated decision to kill. Not only were the remarks significantly removed from the killing in terms of a time frame but they were very general in nature and thus were not relevant to the killing of [the officer].

Id. at 1362-63.

Both Reed's and Zuern's statements were made a significant time before the killing. If anything, Zuern's statement is less inculpatory than Reed's, as Zuern's statement that "[s]omebody should do something to them sons of bitches" does not indicate an intent to kill or predict a specific situation or killing method. In Zuern's...