Brewer v. Anderson

47 F. App'x 284
CourtCourt of Appeals for the Sixth Circuit
DecidedSeptember 10, 2002
DocketNo. 00-4234
StatusPublished
Cited by4 cases

This text of 47 F. App'x 284 (Brewer v. Anderson) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brewer v. Anderson, 47 F. App'x 284 (6th Cir. 2002).

Opinion

[285]*285OPINION

ALAN E. NORRIS, Circuit Judge.

Petitioner David M. Brewer appeals the district court’s denial of his petition for a writ of habeas corpus, 28 U.S.C. § 2254. Petitioner was convicted of aggravated murder and sentenced to death by a three-judge panel in Greene County, Ohio. He raises three primary claims in his petition: (1) the admission of victim impact testimony violated the Eighth and Fourteenth Amendments; (2) the exclusion of letters containing mitigating statements about his character from the presentence report violated the Eighth and Fourteenth Amendments; and (3) he was denied effective assistance of counsel at the sentencing phase. For the reasons stated below we affirm the denial of the writ.

I.

We begin with a summary of the events leading up to petitioner’s conviction for aggravated murder quoted from the Ohio Supreme Court’s opinion:

At about 10:15 on the morning of Thursday, March 21, 1985, Sherry Byrne called her husband Joe and told him that she was going to the Red Carpet Inn in Sharonville, north of Cincinnati, to meet appellant, David Brewer, and his wife Kathy. Appellant and Joe were boyhood acquaintances and college fraternity brothers, and the two couples saw each other socially. According to Sherry, appellant and his wife were at the motel to celebrate Kathy’s pregnancy, and to deliver a set of stereo speakers which appellant had promised Joe.
Sherry and her dog arrived at the motel sometime before noon that morning. Appellant was there alone, having told his wife that he would be in Cincinnati for the day on business.
Appellant and Sherry engaged in sexual intercourse. Appellant testified at trial that Sherry was a willing partner. However, he made statements to police officers suggesting that Sherry may not have been willing, or might have been intimidated by his size.
According to appellant, Sherry expressed guilt about what had happened. They left the motel and drove in his car to a park “to talk about it.” Sherry was upset and threatened to tell her husband. He put her in the trunk of his car because he “couldn’t handle it” and because he “could not get her to calm down.... ” He maintained throughout that she voluntarily got into the trunk. He then drove to a less populated area north of Cincinnati where he opened the trunk and tried to convince Sherry not to tell her husband or his wife. He bound her feet with speaker wire, closed the trunk again, and drove to another location.

State v. Brewer, 48 Ohio St.3d 50, 549 N.E.2d 491, 493 (Ohio 1990).

Petitioner continued driving with the victim in his car for the rest of day, and at one point was questioned by the Beaver-creek police:

Appellant returned to Remco [where he worked as a manager] at about 8:00 and called the Beavercreek police. He spoke with Sergeant Richardson, who told him to come to the station that night and bring his car. Appellant said he would be there in about a half hour. Appellant stayed at Remco for about ten minutes, then left in his car. He stopped a short distance away and opened the trunk to tell Sherry he would let her go in a remote area. Appellant then went back to the Factory Road area.
When appellant opened the trunk, he claimed that Sherry got out, slapped [286]*286him, and ran. Appellant caught her and choked her, first with his hands and then with a necktie. Appellant went back to his car and got a butcher knife. He stabbed Sherry several times, then slashed her throat.
Leaving Sherry’s body in a roadside ditch, appellant drove to the Beaver-creek police station. He went into a restroom to wash blood from his shoes and hands. He then spoke with the officers, who asked about the “HELP” sign that had been seen sticking out of his trunk. Appellant said he had picked up a female hitchhiker, and had been riding around with her. He explained the sign as a prank suggested by the hitchhiker, whom he said he could not identify. The Beavercreek police cited appellant for inducing panic and released him.
Appellant returned to the Factory Road area and placed Sherry’s body in the trunk of his car. He stopped by Remco to call his wife, telling her he would be home soon. He then went home and went to bed.

Id. at 494.

The following Monday petitioner was brought in for questioning by the Spring-dale police, and after lengthy questioning, he confessed to murdering Sherry Byrne.

The district court’s opinion and order provides a summary of the procedural history leading up to its denial of petitioner’s habeas petition:

On March 28, 1985, a grand jury in Greene County, Ohio indicted Brewer on one count of aggravated murder during the commission of a kidnaping, Ohio Rev.Code § 2903.01(B), and one count of aggravated murder with prior calculation and design, Ohio Rev.Code § 2903.01(A). Each count carried aggravating circumstance specifications for commission of the offense while committing or attempting to commit kidnaping, Ohio Rev.Code § 2929.04(a)(7), as well as for commission of the offense in order to escape detection, apprehension, trial or punishment for another offense, Ohio Rev.Code § 2929.04(A)(3).
....
On June 28, 1985, Brewer waived his right to a jury and elected to be tried by a three-judge panel. On September 19, 1985, he was found guilty on both counts and all specifications.

The following events occurred at the sentencing hearing and form the basis of several of the issues presented by petitioner:

At an October 16, 1985 mitigation and sentencing hearing, Brewer introduced testimony from a psychiatrist, Dr. Arthur Schramm, indicating that Brewer suffered from a “bipolar affective disorder,” or “manic depressive psychosis.” Dr. Schramm opined that Brewer was in a manic state throughout the events surrounding Sherry Byrne’s death, meaning that he “was able to appreciate the nature of his actions but was not able to govern or control his behavior or his actions.” On cross-examination, Dr. Schramm acknowledged limited familiarity with certain details of the crime, but nevertheless stood by his diagnosis.
....
The court received into evidence a presentence investigation report prepared by the Greene County Adult Probation Department. Although letters from several people were attached to the report, counsel agreed that all except that of the victim’s husband, Joe Byrne, should be excluded as hearsay. Mr. Byrne’s letter was admitted into evidence “in lieu of [his] making a verbal statement” in open court. The report’s [287]*287conclusion also was stricken by agreement of counsel.

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Related

Fautenberry v. Mitchell
Sixth Circuit, 2008
Brewer v. Anderson, Warden
537 U.S. 1162 (Supreme Court, 2003)

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Bluebook (online)
47 F. App'x 284, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brewer-v-anderson-ca6-2002.