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Habeas Contentions Rejected in Murder Case

McGuire v. State of Ohio, Case No. 07-3991 (C.A. 6, August 31, 2010)

Capital habeas petitioner Dennis B. McGuire challenges the Supreme Court of Ohio’s conclusions that (1) the trial court properly excluded certain hearsay by the victim’s husband, (2) appellate counsel was not ineffective in failing to challenge the omission of a catch-all mitigation factor from the jury instructions, and (3) sufficient evidence supports the jury’s guilty verdict for rape. The district court properly rejected each of these arguments and denied habeas relief.

McGuire was convicted of the kidnapping, rape and aggravated murder of Joy Stewart, and he was sentenced to death. McGuire v. State, 686 N.E.2d 1112, 1114 (Ohio 1997). On the last day she was seen alive, Joy Stewart visited Juanita Deaton, whose son had hired McGuire to clean the gutters of the Deatons’ house. Id. Mrs. Deaton saw Joy Stewart talking to two men outside the house, and testified that McGuire and Joy Stewart left the home at about the same time. Id. McGuire’s brother-in-law, Jerry Richardson, testified that while McGuire was at Richardson’s house later that afternoon, Joy Stewart arrived and requested marijuana. Id. at 1114-15. McGuire agreed to get marijuana for her, and she left with him in his car. Id. at 1115. Hikers found Joy Stewart’s body the next day. Id. The Supreme Court of Ohio described the physical evidence and related testimony:

The front of [Joy Stewart’s] shirt was saturated with blood. One deputy sheriff at the scene, Larry Swihart, also noted that there appeared to be a “blood wipe mark” on her right arm. The body was taken to the Montgomery County Coroner’s Office, where an autopsy was performed. The autopsy revealed that [Joy Stewart] had been stabbed twice. One wound, located above the left collarbone, caused no significant injury. The critical wound was a four-and-a-half-inch-deep cut in the throat, which completely severed the carotid artery and jugular vein. The doctor determined that [Joy Stewart] was alive when she received the wound, and that such a wound could have been caused by a single-edged blade shorter than four and a half inches, due to “how soft and moveable the tissues are in the neck.” The autopsy also revealed abrasions around the neck, impressed with the cloth pattern of [Joy Stewart’s] shirt.


The coroner’s office also took vaginal, oral, and anal swabs. The coroner found an abundant amount of sperm on the anal swab, some sperm on the vaginal swab, and none on the oral swab. The coroner indicated that sperm could be detected in the vagina for days or sometimes weeks after ejaculation; however, sperm in the rectum could be detected for a lesser time “because the environment is fairly hostile for sperm, and . . . a bowel movement . . . usually will purge the rectum of any sperm.”

 

 

Judge(s): Siler, Rogers and Sutton
Jurisdiction: U.S. Court of Appeals, Sixth Circuit
Related Categories: Constitutional Law
 
Circuit Court Judge(s)
John Rogers
Eugene Siler, Jr.
Jeffrey Sutton

 
Trial Court Judge(s)
Susan Dlott

 
Appellant Lawyer(s) Appellant Law Firm(s)
Gary Crim Dayton
Linda Prucha Office of The Ohio Public Defender

 
Appellee Lawyer(s) Appellee Law Firm(s)
Seth Kestner Office of The Ohio Attorney General

 

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and they left in his car. at one point mcguire asked whether she wanted omission before the court of appeals of ohio, the supreme court of ohio cured any 7) the defendant was deprived of parental nurturing. dennis b. mcguire, mitigation factor and appellate counsel performed deficiently in failing to challenge the the appellant physically; however, they did inflict mental abuse by pursuant to sixth circuit rule 206 - (ohio ct. app. apr. 15, 1996). before the supreme court of ohio, mcguire challenged kenny stewart's statement that he had engaged in anal intercourse with the victim, his type 3, 4 sperm--mcguire's type--and therefore would not logically exculpate mcguire. court proceeding. in-law rape and murder [joy stewart]. however, at one point, mcguire and that "the first time it didn't go in. he pulled the knife back out and with a cutting from her underpants, to forensic science associates, a explain by means permitted in the state rules of evidence. therefore, mcguire was not information never disclosed to the defendant and which the defendant therefore could doris newton, mcguire's mother, and tonya cross, his half-sister, counsel to supreme court law, we affirm the district court's denial of habeas relief. mitigating factors by the supreme court of ohio cured any error, assuming there was no. 07-3991 mcguire v. state of ohio, et al. page 2 when mcguire was later imprisoned on an unrelated offense, he discussed the - was error and mcguire's appellate counsel performed deficiently by failing to challenge lindloff [who had investigated joy stewart's killing], who talked to rev. code 2903.01. the death penalty may be imposed for aggravated murder if as the omission of the catch-all mitigation factor, and mcguire alleged that his appellate another person [in which] . . . the offender purposely compels the other person to submit tissues are in the neck." the autopsy also revealed abrasions around the no. 99-00140--susan j. dlott, chief district judge. court of ohio reweighed it. see dist. ct. op. at *14 n.6. cases in which the supreme unlike ohio, do not reweigh on appeal. mcguire's claim also finds no support in factors. rogers, circuit judge. capital habeas petitioner dennis b. mcguire appellant has not demonstrated that the factors listed as recommended for full-text publication before: siler, rogers, and sutton, circuit judges. stewart] had been stabbed twice in the neck and anally sodomized had ground without a coat, out of doors in the ohio winter. viewing the evidence in the light any sperm." joy stewart talking to two men outside the house, and testified that mcguire and joy the supreme court of ohio did not unreasonably apply federal law when it held that pulled a knife on her, and forced her to have oral sex with him. mcguire to determine whether the death sentence was appropriate. id. at 1122-23. after noting _________________ one continued to be available to help him even after the marriage with another inmate, in which mcguire claimed that he had seen his brother- murder. id. at 1120. kenny stewart committed suicide before the trial began, 4 j.a. no. 07-3991 mcguire v. state of ohio, et al. page 6 550 u.s. 233 (2007), are also inapposite because these cases originated from states that, id. against the declarant's interest because the statement would explain the potential son had hired mcguire to clean the gutters of the deatons' house. id. mrs. deaton saw describing the murder, stapleton testified that mcguire "had his hand stewart's body: no. 07-3991 mcguire v. state of ohio, et al. page 4 determined by the supreme court of the united states; or following mitigating factors: committing or attempting to commit rape and was the principal offender planning to blame richardson for the crime. id. at 1116. two of mcguire's fellow kenny stewart's dna is dq alpha type 1.1, 2. the sperm samples from joy stewart's body contained mississippi, in which the supreme court held that the exclusion of a hearsay statement - contained a dq alpha type 3, 4, with a trace amount of dq alpha type gardner v. florida, 430 u.s. 349 (1977), in which the supreme court held that a due calling mcguire names, yelling at him, and generally treating him mcguire's petition is governed by the anti-terrorism and effective death penalty act, reweighing of the aggravating circumstances and mitigating factors "cured the trial killing with law enforcement officials: adjustment to life in prison. not deny or explain. id. at 357-62 (plurality opinion). mcguire's death sentence, by 2007 wl 1893902, at *10 (s.d. ohio july 2, 2007) (dist. ct. op.). the district court underlying claim. enforcement officers that richardson had raped joy stewart, and he told fellow inmates further details from mcguire. mcguire claimed that richardson choked n no. 07-3991 mcguire v. state of ohio, et al. page 9 instruction:mcguire'smarijuanause,troubledyouth,andschooldifficulties. therefore, "purposely caus[ing] the death of another . . . while committing or attempting to commit, findings that mcguire is guilty of aggravated murder and eligible for the death penalty 28 u.s.c. 2254. mcguire challenged, inter alia, the exclusion of kenny stewart's with respect to these three grounds. mcguire now appeals. that regard. dist. ct. op. at *10. the excluded statement was not unquestionably officer goodwin that richardson had wanted to have sex with [joy and mcguire was not entitled to habeas relief on this basis.1 supported the jury's guilty verdict for rape, sufficient evidence supported the jury's while incarcerated. insufficient to overcome the aggravating circumstance in this case, that stewart], but she had refused. mcguire claimed that richardson then consistently referred to [joy] stewart being `raped'" in discussions with lindloff, defendant was also moved frequently, attending various schools, the aggravating circumstance which you have already found is evidence; and kenny stewart was not available forcross-examinationattrial. therefore, sources, e.g., multiple assailants. this was because the sperm analyzed richardson, mcguire's brother-in-law, had killed [joy stewart] with a aggravating and mitigating evidence cures the error. clemons v. mississippi, 494 u.s. richardson, stewart, and the victim's dna was the dq alpha type 1.1, it held that mcguire suffered no constitutional violation when the trial court excluded for the southern district of ohio at dayton. appeal from the united states district court petitioner guilty beyond a reasonable doubt, on habeas review, we must still defer to the improperly-excluded evidence was never put into the record." id. unlike in davis, all the coroner's office tested dna samples collected from the swabs of joy stewart] then became "hysterical," which made mcguire nervous. he > 1462, 1477, and the trial court held that his statement was inadmissible hearsay, 686 petitioner-appellant, argued: august 3, 2010 scientist there compared dna extracted from the samples with blood so he stabbed her again." factors, so long as no relevant mitigating evidence has been excluded during the reweighing. baston v. bagley, 420 f.3d 632, 638 (6th cir. 2005). mcguire concedes , sentence. id. at 1124. viewing the trial testimony and exhibits in the light most favorable to the prosecution, mcguire lived with his mother until he was eighteen. during that eligible for the death penalty, because mcguire described the sexual contact with joy which completely severed the carotid artery and jugular vein. the doctor respondents-appellees. ended up killing [joy stewart] for fear that he would go to jail for raping defendant committed rape in conjunction with murder. we therefore court of ohio did consider the factors allegedly excluded by the trial court's jury n.e.2d at 1120. the jury found mcguire guilty of rape, kidnapping, and aggravated mcguire argues that the evidence was not sufficient to show the compulsion by circumstances outweigh the mitigating factors in this case. the declarant was available for cross examination. 410 u.s. at 300-301. the district most favorable to the prosecution, a rational trier of fact could find that mcguire beat her in front of the appellant, who was required on occasion to run instructed the jury to consider "all the relevant evidence" and stated that joseph goodwin, the corrections officer mcguire initially talked determined that [joy stewart] was alive when she received the wound, moreover, it is unclear how evidence of anal sexual contact between joy and kenny stewart 1) any residual or lingering doubts about the defendant's guilt purposely compelled joy stewart to engage in sexual conduct with him, and the supreme that residual doubt was not a proper mitigating factor, the supreme court of ohio in june 1992, the montgomery county coroner's office sent the and mcguire had little contact with them after that, except when he vaginal, anal, and oral swabs collected from [joy stewart's] body, along of appeals of ohio. the supreme court of ohio denied mcguire's appeal and held that sperm on the vaginal swab, and none on the oral swab. the coroner engage in sex with her, so instead he anally sodomized her. [joy entitled to habeas relief on this claim. that she had refused to have sex with mcguire. medical evidence of skin abrasions was sentence. _________________ at sentencing, mcguire's family and a psychologist testified to mcguire's joy stewart arrived and requested marijuana. id. at 1114-15. mcguire agreed to get detail the area where [joy stewart's] body had been found. or fleeing immediately after committing or attempting to commit . . . rape." ohio rev. swab, or from a secondary sperm source. the sperm dna analyzed had presence of his semen in joy stewart's anus; the statement was not spontaneous, but united states court of appeals mcguire, however, is not entitled to habeas relief on any of the three claims. testified about mcguire's turbulent childhood. the defendant was born even assuming the trial court committed constitutional error by omitting a catch-all 1998 wl 191415 (ohio ct. app. apr. 20, 1998), mcguire petitioned for relief under x no. 07-3991 constitutional error, involving omission of a catch-all mitigation factor from the jury neck, impressed with the cloth pattern of [joy stewart's] shirt. 6 j.a. 2324-25. mcguire's counsel requested an instruction to "advise the jury that they the coroner's office also took vaginal, oral, and anal swabs. the statement was neither spontaneous, nor corroborated, nor inherently incriminating, and for help. his mother and half-sister testified that these men did not abuse decided and filed: august 31, 2010 in 1960. his parents divorced two years later, leaving mcguire in the the exclusion of kenny stewart's statement and the sufficiency of the evidence, as well wound, located above the left collarbone, caused no significant injury. for the jury to conclude that mcguire was the source of the semen collected from [joy] would tend to exculpate mcguire. as the coroner testified, mcguire's dna is dq alpha type 3, 4 while 3) the defendant's ability to make a well-behaved and peaceful opinion 28 u.s.c. 2254. 6) whether the defendant was the victim of childhood abuse. evidence and related testimony: montgomerycountycoroner'soffice,whereanautopsywasperformed. incarceration in 1990. while imprisoned, appellant has taken strides to conclude under our independent review that the aggravating - sperm, and . . . a bowel movement . . . usually will purge the rectum of testified that he had overheard a conversation between mcguire and unreasonably determine the facts when it heldthatsufficientevidencesupportsthejury's any rational trier of fact could have found the essential elements of the crime beyond attorney general, columbus, ohio, for appellee. traumatic youth, childhood marijuana use, and school difficulties. the trial court based on rape. therefore, mcguire was not entitled to habeas relief on this basis. 1 like this describing [sic], telling the guy how she was killed. and he said sentenced to life imprisonment. not been revealed to the public at that time. [mcguire] also described in excluded certain hearsay by the victim's husband, (2) appellate counsel was not ihe goes i mean he. stabbed her like this. hit a bone. it didn't kill her. stewart left the home at about the same time. id. mcguire's brother-in-law, jerry to have sex, and she refused. mcguire then told reeves he did it anyway. the trial court's omission of a catch-all mitigation factor from the jury instructions. the statement by kenny stewart, joy stewart's husband, to law enforcement officials that based on these details, goodwin contacted investigator [david] appellant's mother ended. sheriff at the scene, larry swihart, also noted that there appeared to be statement violated the defendant's constitutional rights when the hearsay statement was continued to weigh the mitigating evidence presented: 2) the defendant's potential for rehabilitation. precludedconsiderationofpropermitigatingevidence,e.g., abdul-kabirv.quarterman, before the court of appeals of ohio, mcguire challenged the exclusion of to, took [mcguire] to a private room to talk, where mcguire told him mitigation factor but that "[u]nder the circumstances of this case, reasonable appellate stewart's body the next day. id. the supreme court of ohio described the physical sometimes weeks after ejaculation; however, sperm in the rectum could 2. the forensic scientist testified that the trace amount of 1.1, 2 could knife, and appellant could lead investigators to it. mcguire explained to 1.1, 2. mcguire's dna was the dq alpha type 3, 4, whereas stabbed her "in the shoulder bone" and "cut her throat." stewart's dq alpha type 1.1, 2 sperm in joy stewart's anus would not explain the presence of dq alpha mcguire was later transferred to madison correctional institute. (1) resulted in a decision that was contrary to, or involved an court of the united states has granted habeas relief when a trial court's jury instructions ineffective in failing to challenge the omission of a catch-all mitigation factor from the after the ohio courts denied mcguire post-conviction relief, no. ca97-06-015, then said richardson anally sodomized her because he "couldn't have stewart as forcible in his statements to law enforcement and fellow inmates, and dna the front of [joy stewart's] shirt was saturated with blood. one deputy consistent with compulsion by force. in addition, stewart's body was found lying on the evidence did not eliminate mcguire as the source of the sperm in her body. two layers these and other grounds raised by mcguire, and granted a certificate of appealability before the court of appeals of ohio. if a jury recommends the death penalty partially a subsequent audiotaped interview by deputy swihart elicited a fellow inmate at the preble county jail, jack stapleton, (2) resulted in a decision that was based on an unreasonable 4) the defendant's ability to lead a useful life behind bars if mcguire on december 22, 1989. mcguire told lindloff that richardson determination of the facts in light of the evidence presented in the state instruction. the jury recommended a death sentence, and the trial court imposed that body at the crime scene. again, swihart felt that these details were 738, 748-50 (1990). the rule in clemons with respect to consideration of improper although we granted habeas relief in another capital case, davis v. coyle, - mcguire argued that his counsel's ineffectiveness in failing to raise the jury-instruction- omission claim before the court of appeals of ohio excused procedural default of the no. 07-3991 mcguire v. state of ohio, et al. page 5 and that such a wound could have been caused by a single-edged blade characteristics that appear in about one in one hundred nineteen males in argued: gary w. crim, dayton, ohio, for appellant. seth p. kestner, office of apparently slipped and implicated himself when telling the story. while he then explained that because she was so pregnant, it was difficult to regular sex with her because she was pregnant." he also said richardson unreasonable application of, clearly established federal law, as that the error in instructing the jury was harmless." id. at 1119. the supreme court of unreasonable application of chambers v. mississippi, 410 u.s. 284 (1973), because the id. mcguire told a friend that he and richardson had committed a murder and he was would run away from home to see them. now, weighing against the aggravating circumstance will be the the jury's verdict that mcguire was guilty of rape. because sufficient evidence committed the murder, that he stabbed [joy stewart] twice in the neck, jury instructions, and (3) sufficient evidence supports the jury's guilty verdict for rape. no. 07-3991 mcguire v. state of ohio, et al. page 8 coupled with the trial court's refusal to permit cross-examination of the declarant on that rather a response to police questioning; the statement was not corroborated by other of deference apply to habeas claims challenging evidentiary sufficiency. brown v. court carefully distinguished chambers, and we adopt the district court's reasoning in also held that, although omitting a catch-all mitigation factor from the jury instructions verdict that mcguire is guilty of rape, and therefore guilty of aggravated murder and - challenges the supreme court of ohio's conclusions that (1) the trial court properly significant, since they had never become a matter of public knowledge. a dq alpha type 3, 4 with a trace amount of dq alpha type 1.1, 2. therefore, the presence of kenny sole care of his mother. mcguire's father took his older brother away, [joy stewart] before stabbing her and wiped his bloody hands off on her, by force;" and "in view of the dna evidence introduced at trial, it was not unreasonable a "blood wipe mark" on her right arm. the body was taken to the force or threat of force required under the ohio rape law. but mcguire told law time, his mother was involved with several men, some of who physically evidence, that case was different. reweighing in davis was "not possible because the ohioalsoindependentlyreweighedtheaggravatingcircumstances andmitigatingfactors the autopsy revealed that [joy stewart] had been stabbed twice. one kenny stewart's statement and the sufficiency of the evidence, but he did not challenge code 2929.04(a). but eventually dropping out after ninth grade. defendant began using state appellate court's sufficiency determination as long as it is not unreasonable." id. no. 07-3991 mcguire v. state of ohio, et al. page 10 5) the defendant's devotion to, and care of, his family members. konteh, 567 f.3d 191, 204-05 (6th cir. 2009). "first . . . we must determine whether, improve his education. he has also committed only minor infractions mitigation outweigh the aggravated nature of the murder. while could not be eliminated as a source of the sperm. kenny stewart and would excuse his procedural default because the supreme court of ohio's independent stewart's vagina and anus." id. at *26-27. the district court denied habeas relief on (citing 28 u.s.c. 2254). under ohio law, rape is defined as "sexual conduct with _________________ [y]ouaregoingtoproceedtoweightheaggravatingcircumstance id. at 1123. the supreme court of ohio therefore affirmed mcguire's conviction and he had engaged in anal intercourse with joy stewart three or four days before the while he was cleaning gutters, [joy stewart] showed up asking whether second, the independent reweighing of the aggravating circumstances and for the sixth circuit court of appeals affirmed mcguire's conviction. no. ca95-01-001, 1996 wl 174609 committing, or attempting to commit, or fleeing immediately after court's error and obviated any prejudice caused thereby." id. at *13. the district court marijuana for her, and she left with him in his car. id. at 1115. hikers found joy defender, columbus, ohio, for appellant. seth p. kestner, office of the ohio or while fleeing immediately after committing or attempting to commit . . . rape." ohio in the commission of the aggravated murder. an inmate there, willie reeves, testified that mcguire told him that indicated that sperm could be detected in the vagina for days or court of ohio was not unreasonable when it decided that sufficient evidence supported contrast, was based wholly on evidence mcguire heard in open court and could deny or a reasonable doubt." id. at 205 (citing jackson v. virginia, 443 u.s. 307, 319 (1979)). district court's reasoning. dist. ct. op., at *26-27. the supreme court of ohio did not the white population. based on improper aggravating factors, independent appellate reweighing of proper stapleton, and reeves; "medical evidence [was] consistent with a finding of compulsion counsel could have decided that a history of marijuana use was of such little mitigation file name: 10a0277p.06 corroboratedbyotherevidence,"self-incriminatoryandunquestionablyagainstinterest," wife joy, in the days before her death. mcguire relies primarily on chambers v. the omission, it was unnecessary to determine whether mcguire suffered prejudice that statement, the omission of a catch-all mitigation factor instruction and appellate "second, even were we to conclude that a rational trier of fact could not have found a first, the supreme court of ohio did not unreasonably apply federal law when could come up with their own mitigating factor, based upon any of the evidence that was the district court properly rejected each of these arguments and denied habeas relief. 475 f.3d 761, 774 (6th cir. 2007), where the trial court had excluded certain mitigating as follows: the offense was committed while the defendant was the district court held that excluding kenny stewart's statement was not an because kenny stewart was not available for cross examination. no. 3:99-cv-140, stewart, and he was sentenced to death. mcguire v. state, 686 n.e.2d 1112, 1114 (ohio id. (footnote omitted). over mcguire's objection, the trial court excluded from trial a have resulted either from [joy stewart's] epithelial cells taken in the _________________ ohio also held that the trial court erred in not instructing the jury on a catch-all appellant's mitigation evidence is entitled to some weight, it is of the offense charged or an aggravating circumstance. richardson, testified that while mcguire was at richardson's house later that afternoon, process violation occurs when a trial court imposes a death sentence partially based on excluding kenny stewart's statement did not violate mcguire's constitutional rights, "[t]he offense was committed while the offender was committing, attempting to commit, be detected for a lesser time "because the environment is fairly hostile for no. 07-3991 mcguire v. state of ohio, et al. page 7 both of which actions were consistent with the state of [joy stewart's] and "made spontaneously to a close acquaintance shortly after the [crime]," and when poorly. some of these men, however, were good to the defendant, and that all the relevant mitigating evidence was admitted, and in reweighing, the supreme because the supreme court of ohio did not unreasonably apply or rule contrary shorter than four and a half inches, due to "how soft and moveable the 1997). on the last day she was seen alive, joy stewart visited juanita deaton, whose presented to them." 6 j.a. 2298. the trial court declined to give this catch-all resulting error by its reweighing of the proper aggravating circumstances and mitigating the critical wound was a four-and-a-half-inch-deep cut in the throat, coroner found an abundant amount of sperm on the anal swab, some samples taken from dennis mcguire, jerry richardson, joy stewart, and no. 07-3991 mcguire v. state of ohio, et al. page 11 a pregnant woman. counsel's failure to challenge that omission, and the sufficiency of the evidence of rape. id. . . . . inmates also testified at trial: - instructions at sentencing and mcguire's counsel's failure to challenge that omission under which the federal courts may grant habeas relief to a state prisoner based on claims the hearsay statement was not admissible. 686 n.e.2d at 1120. the supreme court of murder with the rape specification. id. at 1114. v. marijuana at the age of nine and continued doing so until his the relevant evidence in this case was admitted and in the record when the supreme which you have already found against the mitigating factors which you that he knew who had killed joy stewart. mcguire stated that jerry finally, with respect to the sufficiency of evidence of rape, we again adopt the private laboratory, for dna testing using the pcr technique. a forensic state of ohio; betty mitchell, warden, joy's husband, kenny stewart. the scientist determined that mcguire the ohio attorney general, columbus, ohio, for appellee. on brief: will consider and find. 1 no. 07-3991 mcguire v. state of ohio, et al. page 3 stuck her again." lindloff was interested, since the fact that [joy by force or threat of force." ohio rev. code 2907.02(a)(2). aggravated murder is mcguire had any marijuana. mcguire offered to share some with her, counsel was ineffective for failing to challenge that catch-all omission before the court mcguire was convicted of the kidnapping, rape and aggravated murder of joy aggravating factors applies as well to an alleged failure to consider proper mitigating adjudicated on the merits in state court if the state-court adjudication finally held that sufficient evidence supported the jury's rape verdict because "mcguire gary w. crim, dayton, ohio, linda e. prucha, office of the ohio public richardson, however, could be eliminated, unless there were two sperm


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