RECOMMENDED FOR FULL-TEXT PUBLICATION Pursuant to Sixth Circuit Rule 206 2 Spirko v. Mitchell No. 00-4385 ELECTRONIC CITATION: 2004 FED App. 0140P (6th Cir.) File Name: 04a0140p.06 Charles L. Wille, ATTORNEY GENERAL’S OFFICE OF OHIO, Columbus, Ohio, for Appellee. UNITED STATES COURT OF APPEALS BATCHELDER, J., delivered the opinion of the court, in which DAUGHTREY, J., joined. GILMAN, J. (pp. 21-28), FOR THE SIXTH CIRCUIT delivered a separate dissenting opinion. _________________ _________________ JOHN G. SPIRKO, JR., X OPINION Petitioner-Appellant, - _________________ - - No. 00-4385 v. ALICE M. BATCHELDER, Circuit Judge. John G. Spirko - > appeals the order of the district court denying his petition for , a writ of habeas corpus. An Ohio jury found Spirko guilty of BETTY MITCHELL , Warden, - aggravated murder with specifications and recommended that Respondent-Appellee. - he be sentenced to death. The state trial court accepted that N recommendation and sentenced Spirko to death on Appeal from the United States District Court September 24, 1984. Spirko’s motion for a new trial was for the Northern District of Ohio at Toledo. denied, and his direct appeals of his conviction and sentence, No. 95-07209—James G. Carr, District Judge. his petition for a writ of certiorari in the United States Supreme Court and his petitions for post-conviction relief Argued: April 30, 2002 were unsuccessful. On March 31, 1995, he filed a petition for habeas corpus in the district court; he filed an amended Decided and Filed: May 17, 2004 petition and a request for an evidentiary hearing on March 10, 1999, alleging fifteen separate grounds for relief, each of Before: BATCHELDER, DAUGHTREY, and GILMAN, which the district court addressed and found to be without Circuit Judges. merit. The district court denied the petition, and Spirko timely appealed. _________________ Before us, Spirko argues that 1) the prosecution denied COUNSEL Spirko due process by knowingly presenting false evidence and a false theory of the case at trial; 2) the prosecution ARGUED: Thomas C. Hill, SHAW PITTMAN, denied Spirko due process by violating the requirements of Washington, D.C., for Appellant. Charles L. Wille, Brady v. Maryland, 373 U.S. 83 (1963); 3) Spirko’s trial ATTORNEY GENERAL’S OFFICE OF OHIO, Columbus, counsel were ineffective because they did not investigate the Ohio, for Appellee. ON BRIEF: Thomas C. Hill, SHAW alibi claim of Delaney Gibson, who was indicted with Spirko PITTMAN, Washington, D.C., John J. Callahan, McHUGH, for the murder; 4) the prosecution probably suborned perjury DeNUNE & McCARTHY, Sylvania, Ohio, for Appellant. at trial; 5) the district court erred in denying Spirko’s actual
1 No. 00-4385 Spirko v. Mitchell 3 4 Spirko v. Mitchell No. 00-4385
innocence claim; 6) Spirko was denied due process by the found in a bean field in neighboring Hancock County. The prosecution’s use of a suggestive photo array and body, bearing between fourteen and eighteen stab wounds to hypnotically refreshed testimony, and by his trial in an the chest and stomach, was fully clad, wrapped in a paint- improper venue; 7) the district court erred in denying Spirko’s splattered curtain which appeared to have been used by request for discovery and an evidentiary hearing; 8) Spirko painters as a drop-cloth, and tied with a cord similar to a was denied due process as a result of several errors during the clothesline. sentencing phase of the trial. After reviewing the district court’s exhaustive opinion, we conclude that we agree with its The investigation into the abduction and death of Mrs. findings and its conclusions1, and we will not separately Mottinger was massive. Authorities interviewed over three address any of Spirko’s claims except those relating to the thousand people and spent countless man hours seeking alleged Brady violations. We think that the Brady claims, information to solve the crime. The prosecution followed although ultimately meritless, deserve specific attention. anonymous leads, tips based on old hearsay, and any trail that might lead to probative evidence. The record is enormous The only Brady claim that Spirko actually argues in his and contains reports from the interviews and documents from brief is that the state withheld from him evidence that an the investigative efforts. Among the interviews documented individual named Delaney Gibson, who was indicted with in the record are the many interviews of the petitioner, John Spirko for the murder but escaped and remained a fugitive Spirko. until well after Spirko had been tried and convicted, could not have been present when the murder was committed. It is In October of 1982, Spirko initiated contact with law useful to recount the facts relevant to this claim. enforcement officers, including postal inspectors. Spirko, who was then in jail in Lucas County, Ohio, on unrelated At approximately 8:30 a.m. on August 9, 1982, Betty Jane charges, told the officers that he had information about Mrs. Mottinger was discovered to be missing from her post as Mottinger’s killing, and suggested that in exchange for the postmistress of the Elgin, Ohio, Post Office in Van Wert officers’ help on those charges, he could help them in the County. Also missing were Mrs. Mottinger’s purse and Mottinger case. Over the next several weeks, Spirko gave a approximately $750 in cash, postage stamps and money series of differing accounts of the murder. His tales included orders. Some three weeks later, her decomposing body was persons named “Rooster,” “Dope Man,” “Spooky” and “Dirty Dan.” Early in his “cooperation” with the postal inspectors, he told Inspector Paul Hartman that he had been at a party 1 where an unnamed person had told him that three white males The district court held that although Spirko filed his habeas petition prior to the effective date of the Anti-terrorism and E ffective D eath had murdered Mrs. Mottinger after the three had gone to the Pen alty Act (“AEDPA” or “the Act”), the AEDPA is retroa ctively post office to claim a package containing heroin, had gotten app licable to the petition. The district court noted that Spirko did not into some kind of scuffle, and had been forced to kidnap the argue to the contrary; the court also held, in the alternative, that the outcome of the case was not affected by the retroactive application of the postmistress. According to Spirko, while he was at the party, Act. The district court’s retroactive ap plicatio n of AED PA to this petition he saw a cream-colored handbag with brown trim, containing was error. We have reviewed the petition under the pre-AEDPA standard, coins, some money orders and gold jewelry. He changed his see Lindh v. Murphy, 521 U.S. 320, 326 (1997), however, and conclude story a few days later, telling Inspector Hartman at the outset that the district court was correct in its conclusion that the outco me o f this of the interview, “Look Paul, I’ve thrown you a few curves case is the same when the pre-AED PA standard is applied, and therefore we hold that the erro r is harmless. and you have thrown me a few curves. From now on, it’s No. 00-4385 Spirko v. Mitchell 5 6 Spirko v. Mitchell No. 00-4385
going to be straight down the line.” Spirko went on to say himself had been killed, he now said that Rooster’s body had that he himself had been commissioned by The Dope Man2 to been deposited in a swamp in Florida. And on December 10, retrieve a package containing heroin from a man named Spirko described to Inspector Hartman the clothing that Mrs. Rooster, and claimed that Spirko and another man had driven Mottinger had been wearing when she disappeared. to a house where Spirko saw Mrs. Mottinger’s body. Spirko said that the body was already bound; that one of the men in Hartman next interviewed Spirko on December 13, 1982. the house had unwrapped it to recover a cigarette lighter; and Spirko now claimed that he and Swartz had actually been the body had about 15 stab wounds. Spirko related further present when Mrs. Mottinger was killed. First, Spirko said that the Dope Man decided that Rooster should be killed, and that while he was watching television in the house, Rooster that Spirko had driven Rooster and two other persons to an had chased Mrs. Mottinger outside where Rooster and Dirty undisclosed location where Rooster was shot and buried in a Dan had stabbed her. Later in the day, Spirko told Hartman marsh. that an unknown biker, along with Rooster and a man named Dean or Dino, had taken turns raping Mrs. Mottinger, and A few days later, Spirko expanded his story to include a when she tried to escape Spirko stopped her and held her man named “Swartz,” who told him that Rooster and Dirty down while Rooster repeatedly stabbed her in the stomach. Dan had killed Mrs. Mottinger because she had bitten Rooster when he forced her to perform oral sex on him. Spirko When interviewed on December 15, 1982, Spirko claimed claimed that he and Swartz had gone to the house where the that he and Dino, Dirty Dan, Rooster and the biker, had spent murder was committed; there he saw Rooster and Dirty Dan the night of August 8th sleeping in a roadside park. The next with blood on their clothes and a gray curtain which was torn morning, Rooster, Dino and the biker went in to Elgin, at the end; he also saw a brown car, inside of which was a kidnapped Mrs. Mottinger and brought her back to where cream-colored purse with brown trim, containing money Spirko and Dirty Dan were parked on a road near the orders, change and gold jewelry. farmhouse where Spirko claimed the murder took place. Faced with the necessity of doing something with the victim The next day, December 9, Spirko again changed his story. because she could identify them, Rooster, the biker and Dirty This time, he said it was in fact Rooster who had told him Dan first raped her—apparently out of the presence of Spirko how the murder took place, and that Rooster had said that the and Dino—and then, outside of the house and in front of only thing that bothered him about the murder was the Spirko and Dino, stabbed her repeatedly. Rooster, the biker “whoosh” sound that the knife made when he stabbed Mrs. and Dan rolled the body onto a piece of curtain they had in Mottinger. Although Spirko stuck to his claim that Rooster the car, removed the jewelry from the body and pried the stone from a ring on the victim’s hand, and, bringing the curtain down over the victim’s head, wrapped the body end- 2 to-end. Because Rooster had carelessly dropped his cigarette The Ohio Suprem e Court refers to “someone named V ito” in relating this rendition of Spirko’s story, which appears to us to be lighter into the curtain during this process, they unwrapped attributable to a court-reporting error. Throughout this part of Hartman’s the body, recovered the lighter, and wrapped it up again. trial testimony he refers to “The Dope M an,” but on page 13 of Hartman’s testimony—which is also page 2391 of the trial transcripts—the transcript Investigator Hartman testified that several aspects of this reads: “The defendant was ultimately commission ed by Vito man to evolving tale were of particular significance: the detail about recover this parc el containing the narcotics.” No other reference to the victim’s purse and its contents; the description of the anyone named “V ito” appe ars. No. 00-4385 Spirko v. Mitchell 7 8 Spirko v. Mitchell No. 00-4385
clothing the victim had been wearing; the description of the Rooster and Sizemore had attempted to rob the post office curtain in which the body was wrapped, including the detail while Gibson drove the get-away car. When the postmistress that part of the curtain had been torn off; the description of began to scream, Gibson went to the post office and helped the way in which the body had been wrapped in that curtain; the other two abduct Mrs. Mottinger. They then raped her and the fact of the stone’s having been pried from the victim’s and when she tried to escape, they stabbed her and dumped ring. These factually accurate details were not matters that the body. Spirko said that Gibson explained that they stabbed had been made public. the victim rather than using the guns to kill her because “where they were at, if they had shot her, it would have been On January 11, 1983, Hartman interviewed Spirko again. their ass.” Gibson said that robbing the post office had been By now, Spirko was in the federal penitentiary in stupid because there was no real money in it, and all they got Leavenworth, Kansas, having been admitted into the federal was change; he also explained that because the money orders witness protection program. This time, Spirko advised were traceable, they had burned them rather than cashing Hartman that there had been no narcotics involved in the them. abduction and murder of Mrs. Mottinger, but that he had heard that the entire incident began as a robbery attempt. Of particular significance to Inspector Hartman were the When Hartman refused to believe any of this allegedly third- details about the .357 magnum (the investigation having hand account, Spirko admitted that it was not true, but said revealed that Gibson possessed such a firearm), the cream- that he couldn’t tell the truth because he had to protect “the colored purse and its contents, the description of the gray only friend he ever had in his whole life.” Spirko went on to curtain in the back seat of the car, the fact that the robbery had say that this friend had been in the Elgin area immediately primarily yielded change, and the fact that the money orders after the crime was committed, and that Spirko had seen the had been destroyed. Also important were the names of proceeds from the post office robbery. Cravens and Sizemore, both of whom the investigators determined were real individuals; the inspectors found no The following day, Spirko identified his friend as Delaney evidence connecting either of them to the robbery and Gibson; Spirko said that on August 11 or 12, 1982, he had murder. Inspector Hartman also testified that the gone drinking with Gibson and two individuals named Clyde investigators looked into the other individuals whom Spirko Cravens and Eugene Sizemore, and had learned that those had named—in his pre-Leavenworth interviews—and had three had robbed the post office and murdered Mrs. determined that they were either real people who had no Mottinger. Spirko said that Gibson had showed him the trunk connection with the murder, or were people who apparently of the car where they had put the body; the trunk was stained did not exist. and emitted a strong odor. Gibson also showed him a duffel bag containing a collection of guns, including a chrome- While he was in jail, Spirko wrote a letter to his girlfriend plated .357 magnum with ivory handles, and a cream-colored in which he said, “[T]here are some things that I told him canvas purse containing money orders and change. Spirko [Inspector Hartman] that only the persons who did this shit said that he saw a rolled-up gray curtain on the floor of the know, there are no if and ands about that.” Spirko was right. back seat of Gibson’s car. He also stated that, a couple of He had given the authorities facts about the crime that had not weeks later, Gibson offered to pay Spirko to kill Clyde been disseminated by the authorities and were not generally Cravens, whom Gibson called “Rooster,” because he could known by the public, including the number and location of identify Gibson. According to Spirko, Gibson explained that stab wounds on Mrs. Mottinger’s body; a description of the No. 00-4385 Spirko v. Mitchell 9 10 Spirko v. Mitchell No. 00-4385
clothing Mrs. Mottinger had been wearing when she was stated that he thought he remembered three or four days abducted; the fact that a stone had been pried from a ring she during that period when Gibson was absent from work but he had been wearing; a description of the type of fabric the body could not remember when, exactly, the absences occurred. was wrapped in as well as a description of the way the body was wrapped; a description of her purse; and a description of Postal inspectors interviewed Gibson’s wife, Margie, on the contents of the purse. December 21, 1983. Margie told them that sometime during the month of August, 1982, her sister and brother-in-law, A number of persons who had been in the vicinity of the Brenda and Michael Bentley, had visited the Gibsons in North post office around the time Mrs. Mottinger was abducted Carolina, staying for a couple of days. Margie showed the were interviewed. One of them, after viewing a photo array, inspectors pictures—allegedly taken during the visit—of the identified Delaney Gibson as a man she had seen getting out Bentleys with Margie and a bearded Delaney Gibson. The of a car with a “cinnamon top and a bronzish-brown bottom,” inspectors also interviewed the Bentleys, who said that they in front of the post office at 8:30 that morning. In the picture, had visited the Gibsons in North Carolina on Saturday, Gibson was clean-shaven. A second witness identified—with August 7 and Sunday, August 8, 1982; had left North about 70% certainty—Spirko from a photo array as the man Carolina around 6:00 p.m. on August 8; and had driven north he had seen at 8:30 that morning, standing by a copper-toned to Newport, Tennessee, where they had stayed in a motel the late 1970s car with a lighter top. night of August 8. The Bentleys also had pictures that they said were taken during the visit. The postal inspectors were The investigators conducted a comprehensive investigation able to verify the Bentleys’ overnight stay at a motel in into Delaney Gibson. They discovered that Gibson was, as Newport on Sunday night, August 8, 1982, as well as Brenda Spirko claimed, a close friend and, in fact, one of Spirko’s Bentley’s statement that she had dropped off two rolls of film prior cellmates. After locating Gibson in North Carolina, for processing on August 10. police investigators interviewed him, eventually taking him into custody. Gibson denied any involvement in the On January 11, 1984, the inspectors again interviewed abduction or murder claiming that he was employed as a Margie Gibson and obtained from her the photographs that migrant worker in North Carolina during the time period she claimed had been taken during the August, 1982, visit. surrounding the incident. Gibson admitted to his friendship The inspectors subsequently determined that Margie Gibson with Spirko but claimed that he had not seen Spirko for years. had taken film to be processed on August 17, 1982, and that In August of 1983, Gibson escaped from police custody. He a receipt from an automotive store in North Carolina near the was indicted in September 1983, along with Spirko, for the Gibson’s home, issued to “Jim Gibson” (one of Delaney murder of Mrs. Mottinger, recaptured, and shortly before the Gibson’s aliases) on August 7, 1982, was authentic. date scheduled for Spirko’s trial, escaped again. Gibson remained a fugitive until well after Spirko’s trial had been Spirko claims that this evidence demonstrates that Gibson completed. could not have been in Elgin, Ohio, on the morning of August 9, 1982, and that on that day Gibson was not clean The investigators interviewed Gibson’s sometime crew shaven but wore a full beard. Spirko reasons that because the chief, Juan Flores, who confirmed that he employed Gibson theory of the state’s case against Spirko was that Gibson and in North Carolina as a produce picker and that Gibson was in Spirko had acted together in the abduction and murder of Mrs. his employ from June, 1982, until October, 1982. Flores Mottinger, evidence that Gibson was not in Ohio at the time No. 00-4385 Spirko v. Mitchell 11 12 Spirko v. Mitchell No. 00-4385
of the murder is evidence that also is exculpatory of Spirko. the verdict.” Id. at 435. The Court noted that if the The state’s failure to turn this evidence over to him, Spirko suppression of evidence in fact violated Brady, then the error argues, violated the state’s obligations under Brady v. is not subject to harmless error review, since a failure to Maryland, 373 U.S. 83 (1963). disclose evidence that could reasonably be viewed as casting the entire case in a different light could hardly be viewed as Brady established that “the suppression by the prosecution harmless error. The Court stressed that suppressed evidence of evidence favorable to an accused upon request violates due is to be viewed collectively, rather than item by item, and a process where the evidence is material either to guilt or to defendant does not establish a Brady violation by showing punishment, irrespective of the good faith or bad faith of the only that the prosecution was aware of but did not disclose an prosecution.” Id. at 87. Brady does not grant broad discovery item of evidence favorable to the defendant. Id. at 436-37. powers to the defendant, but is instead intended only to ensure that the defendant has access to impeachment evidence More recently, the Supreme Court reviewed the elements of and evidence favorable to him, suppression of which would a Brady violation, reminding us that, “strictly speaking, there deprive him of a fair trial. United States v. Bagley, 473 U.S. is never a real ‘Brady violation’ unless the nondisclosure was 667, 675 (1985). so serious that there is a reasonable probability that the suppressed evidence would have produced a different Essential to the determination of whether the state’s failure verdict,” and summarizing the components of a “true” Brady to disclose evidence is a Brady violation is Brady’s violation: requirement that the withheld evidence be “material either to guilt or to punishment.” Brady, 373 U.S. at 87. In Kyles v. The evidence at issue must be favorable to the accused, Whitley, 514 U.S. 419 (1995), the Supreme Court elaborated either because it is exculpatory, or because it is upon Bagley’s materiality requirement, explaining: impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice Bagley’s touchstone of materiality is a “reasonable must have ensued. probability” of a different result, and the adjective is important. The question is not whether the defendant Strickler v. Greene, 527 U.S. 263, 281-82 (1999). In would more likely than not have received a different Strickler, the Court’s focus was on the third component, verdict with the evidence, but whether in its absence he “whether petitioner has established the prejudice necessary to received a fair trial, understood as a trial resulting in a satisfy the ‘materiality’ inquiry.” Id. at 282. To satisfy this verdict worthy of confidence. A “reasonable probability” requirement, the Court reiterated, the petitioner “must of a different result is accordingly shown when the convince us that ‘there is a reasonable probability’ that the government’s evidentiary suppression “undermines result of the trial would have been different if the suppressed confidence in the outcome of the trial.” [evidence] had been disclosed to the defense.” Id. at 289. Id. at 434. The Court went on to emphasize that materiality Like several of our sister circuits, this circuit has held that is not determined by looking at the sufficiency of the because Brady did not alter the rule that defendants have no evidence; rather we must determine whether the favorable general constitutional right to discovery in criminal cases, a evidence could reasonably be viewed as putting the entire prosecutor violates his constitutional duty of disclosure only case “in such a different light as to undermine confidence in if “his omission is of sufficient significance to result in the No. 00-4385 Spirko v. Mitchell 13 14 Spirko v. Mitchell No. 00-4385
denial of defendant’s right to a fair trial,” United States v. Delaney Gibson; and “Information concerning Delaney Todd, 920 F.2d 399, 405 (6th Cir. 1990) (quoting United Gibson: Mr. Michael Bentley, Box 425, Ary Kentucky States v. Agurs, 427 U.S. 97, 108 (1976)), and where the 41712, has stated that Delaney Gibson was with him and his defendant was “aware of the essential facts that would enable wife in North Carolina on 8/7/82 and 8/8/82 and that pictures him to take advantage of the exculpatory evidence,” the are purported to have been taken of the weekend in question.” government’s failure to disclose it did not violate Brady. Id. In Todd, we found no Brady violation where the prosecutor Spirko was thus on notice that there was evidence that had disclosed to the defense the fact that two witnesses Delaney Gibson had been in North Carolina on the day before possibly possessed exculpatory evidence but did not disclose the murder, and Spirko was given the identity and location of what that evidence was. See also United States v. Clark, 928 some of the witnesses to Gibson’s whereabouts on that day. F.2d 733, 738 (6th Cir. 1991) (quotations and citation The state court made factual findings that Spirko’s counsel omitted) (holding that there is no Brady violation if the had notice of this evidence; those findings are amply defendant “knew or should have known the essential facts supported by the record and are binding on the federal habeas permitting him to take advantage of any exculpatory court under the pre-AEDPA 28 U.S.C. § 2254(d). information or where the evidence is available to defendant from another source”). The Fourth Circuit has held that “the Spirko’s complaint is essentially that he was entitled to Brady rule does not apply if the evidence in question is have all of the state’s evidence with regard to the North available to the defendant from other sources,” United States Carolina alibi turned over to him. But this is not the law. v. Wilson, 901 F.2d 378, 380 (4th Cir. 1990) (quoting United Like the defendant in Todd, Spirko was “aware of the States v. Davis, 787 F.2d 1501, 1505 (11th Cir. 1986)); and essential facts that would enable him to take advantage of the “where the exculpatory information is not only available to exculpatory evidence.” Todd, 920 F.2d at 405. A reasonable the defendant but also lies in a source where a reasonable defendant would have pursued that inquiry—unless, of defendant would have looked, a defendant is not entitled to course, he already knew that the inquiry would not in fact the benefit of the Brady doctrine. Id. at 381. The Second result in exculpatory information—but Spirko did not do so. Circuit (United States v. Grossman, 843 F.2d 78, 85 (2d Cir. We hold, consistent with Todd, Clark and Wilson, that 1988)) and the First Circuit (Lugo v. Munoz, 682 F.2d 7, 9-10 because the evidence was available to Spirko from other (1st Cir. 1982)) have similarly ruled. sources than the state, and he was aware of the essential facts necessary for him to obtain that evidence, the Brady rule does Spirko contends that the state violated the requirements of not apply. Brady by failing to turn over to his counsel all of the investigative reports and photographs regarding Delaney We hold further that Spirko has not demonstrated that this Gibson’s whereabouts at the time of the abduction and murder evidence was of a kind that the state would have been of Mrs. Mottinger. It is undisputed that Spirko’s defense required to disclose under Brady. Spirko cannot demonstrate counsel stipulated prior to trial that they had received from that the evidence regarding Gibson’s alibi—that is, the claim the state memoranda of interviews of Gibson done on that Gibson was not and could not have been in Ohio on the April 21, 22 and 29, 1983; the “Interview Concerning morning of August 9, 1982—is favorable to Spirko, and he Delaney Gibson. a) Roger Burress [the owner of one of the cannot demonstrate that he was prejudiced by the state’s farms on which Gibson worked picking tomatoes during the failure to disclose it. summer of 1982] b) Margie Gibson;” a photograph of No. 00-4385 Spirko v. Mitchell 15 16 Spirko v. Mitchell No. 00-4385
Spirko argues that the evidence was favorable to him “convinc[ing] us that ‘there is a reasonable probability’ that because, like the undisclosed evidence in Jamison v. Collins, the result of the trial would have been different if the 291 F.3d 380 (6th Cir. 2002), it undermined the theory of the suppressed documents had been disclosed to the defense.” prosecution’s case. In Jamison, we held that evidence Strickler, 527 U.S. at 290. But here, even if Spirko could withheld from the defendant was favorable to him because, demonstrate that the Gibson evidence proved beyond question while it did not eliminate him as the perpetrator of the crime, that Gibson could not have been part of the crime, he cannot it did contradict the testimony of the chief prosecution show a reasonable probability that by presenting that evidence witness, undermine the prosecution’s theory of how the to the jury, he could have cast the entire case “in such a murder was committed, impeach the testimony of key different light as to undermine confidence in the verdict,” prosecution witnesses, and, in fact, point to the chief Kyles, 514 U.S. at 435, or that, if the evidence had been prosecution witness and another individual as potential disclosed to him, “the result of the trial would have been suspects. Id. at 389-391. Here, however, the evidence different.” Strickler, 527 U.S. at 289. As we have already regarding Gibson’s whereabouts neither contradicts nor noted, if the jury had concluded that Gibson could not have undermines the state’s theory of the crime. While it is true been one of the perpetrators, then the jury would also have that Gibson was indicted for the murder, and the state viewed concluded that Gibson could not have been the source of him as probably having been the chief perpetrator, the state’s Spirko’s detailed knowledge of the crime. And, alternatively, case against Spirko was not dependent upon Gibson’s being Spirko has certainly not demonstrated that if he had been proven to be part of the crime. The state’s case against Spirko aware of this evidence—and thus had known that Gibson was was based principally on Spirko’s own statements to the not involved in the crime—he could have come up with a investigators demonstrating intimate knowledge of facts that, better story about how he came to know so much about the in Spirko’s own words, “only the persons who did this shit murder. This evidence was simply not material. know.” Spirko knew. In the statement of facts contained in his brief on appeal, The Gibson evidence does not prove that Gibson could not Spirko claims that the state also failed to provide him with have been in Elgin, Ohio, on the morning that the crime was investigative records from the massive investigation. committed. More relevant to Spirko’s Brady claim, however, Specifically, Spirko points to those containing information is the fact that the Gibson evidence not only does not allegedly inculpating other individuals in the abduction and eliminate Spirko as the perpetrator, it eliminates his best murder of Mrs. Mottinger, and detailing the interviews of defense. If Gibson was not a participant in the murder, then persons who failed to place either Gibson or Spirko at the he was not, as Spirko told the investigators and claimed at post office at the time of the abduction. His brief does not, trial, the source of all of Spirko’s detailed knowledge of the however, contain any legal argument with regard to any of crime. And if Spirko did not learn the details of this crime these individuals or demonstrate that any of the evidence he from Gibson, from whence did all of that detail come? points to meets the Kyles and Strickler requirements of materiality. Spirko cannot demonstrate that he was prejudiced by the government’s failure to disclose the Gibson information. By failing to provide the court with any developed legal Prejudice for Brady purposes, the Supreme Court said in argument with regard to the individuals, Spirko has waived Strickler, is necessary to establish the “materiality” any argument he might have. “It is a ‘settled appellate rule requirement. Spirko may demonstrate that prejudice only by that issues adverted to in a perfunctory manner, No. 00-4385 Spirko v. Mitchell 17 18 Spirko v. Mitchell No. 00-4385
unaccompanied by some effort at developed argumentation, any other that Spirko proffers as evidence that the state are deemed waived.’” United States v. Elder, 90 F.3d 1110, violated the requirements of Brady. Before the district court, 1118 (6th Cir. 1996) (quoting United States v. Zannino, 895 Spirko theorized that Willier had killed Mrs. Mottinger in F.2d 1, 17 (1st Cir. 1990)). We have nonetheless reviewed Willier’s trailer. Spirko has provided virtually no factual the record with regard to these claims, and we conclude that basis in his brief on appeal for this theory of the crime; he has they are entirely without merit. Looking first at the developed no legal argument in his brief for his claim that interviews of individuals who did not see either Gibson or evidence of Willier’s sister’s relationship with the Spirko in the vicinity of the post office on the morning of the investigator would have been either exculpatory or abduction, we find that the record clearly demonstrates that impeaching; he provides no explanation of how Ms. Young’s these individuals did not see anyone or anything out of the testimony was affected by the alleged relationship with the ordinary. That there were people on the scene who did not investigator or, indeed, the substance of that testimony, and notice anything out of place or any strange faces is neither none of Ms. Young’s testimony appears in the Joint favorable to Spirko nor exculpatory of him, nor would the Appendix. Neither is there any evidence in the record that disclosure of all of the state’s information about these people would support Spirko’s theory that Mrs. Mottinger was killed have been reasonably likely to bring about a different result in Willier’s trailer. at trial. A review of the record of the prior proceedings in this We have also carefully reviewed Spirko’s claims that matter establishes that Spirko bases this entire Brady claim on various individuals interviewed or investigated were potential wholly unsupported speculation. Spirko testified at trial that suspects such that the investigative reports should have been sometime after the time of the murder, he and Gibson had disclosed to him by the state. The district court concluded, gone to a trailer in a trailer park, and that he had seen a large and we agree, that the record does not support the readings of quantity of “thick, gooey blood in the bathtub” of the trailer. these reports that Spirko urges; the record does support the Spirko did not testify that the trailer belonged to or was lived state’s conclusions that no credible evidence supported any in by John Willier, and the record contains no evidence further investigation into any of them as potential suspects. whatsoever that Spirko was ever in John Willier’s trailer. Most importantly, nothing revealed in any of the investigative Only if the record established that Spirko was in John reports about these individuals in any way undermines the Willier’s trailer around the time of the murder could we even state’s case against Spirko because nothing in these reports possibly draw the inference that Spirko apparently believes eliminates Spirko as a participant in the crime or provides a we should draw, namely that Mrs. Mottinger was killed in plausible and innocent explanation for his detailed knowledge John Willier’s trailer. of it. This information is neither favorable to Spirko nor material to his defense. We learn from reviewing the record of prior proceedings—because Spirko’s brief contains neither facts The one piece of information to which Spirko points that, nor argument with regard to this testimony—that Ms. Young at first blush, might give us pause, is his claim that one of the testified that she had been in her brother John Willier’s trailer prosecution’s witnesses, Debbie Young, the sister of John every day for several days after the murder and saw no Willier, was intimately involved during the trial with the evidence of blood in the bathtub. Spirko’s father testified to prosecution’s chief investigator. On closer review, however, the same effect. Spirko would have us infer that Ms. Young’s this information is no more exculpatory or impeaching than testimony was false, apparently because of her relationship No. 00-4385 Spirko v. Mitchell 19 20 Spirko v. Mitchell No. 00-4385
with the chief investigator. But only if there were evidence Even if that evidence should have been disclosed, Spirko has that Spirko was ever in John Willier’s trailer would any not demonstrated that it or any of the undisclosed evidence to testimony by Ms. Young that there was no blood in the which he points was favorable to him or that he was bathtub in that trailer have any relevance to the charges prejudiced by its nondisclosure. The Brady claims are against Spirko. The record contains no such evidence. without merit. The district court carefully and correctly assessed each of the other claims of error raised in this appeal, The district court concluded that none of this information and we now affirm in its entirety the district court’s judgment was of sufficient probative value to create any doubt about the denying the petition for a writ of habeas corpus. verdict against Spirko. While we do not entirely subscribe to the district court’s conclusion that Ms. Young’s relationship with the investigator would have had no impact on the jury’s assessment of her credibility, we find no error in the court’s overall assessment of this Brady claim. Spirko has wholly failed to demonstrate a reasonable probability that if the information to which he points had been disclosed to him “the result of the trial would have been different.” Strickler, 527 U.S. at 289. This alleged Brady claim, like all of the others, is without merit. Finally, we must consider whether, even if any of this evidence met the Brady requirements, Spirko would have been convicted on evidence unaffected by that which was not disclosed. We hold that clearly he would. As we have repeatedly pointed out, Spirko’s conviction rested in large measure on his knowledge of non-public facts about the crime, all of which he volunteered to the investigators. The evidence from his own mouth was accompanied by the testimony of two of his cellmates who testified that Spirko told them about the murder and his part in it. There is no reasonable probability that anything that he now complains the state failed to disclose to him would have made any difference in the result of the trial. To summarize, we hold that the state did not violate the requirements of Brady with regard to any of the evidence of which Spirko complains. The Brady rule does not apply to the evidence of Gibson’s whereabouts the day before the murder because Spirko was on notice of the essential facts necessary to permit him to obtain it through other sources. No. 00-4385 Spirko v. Mitchell 21 22 Spirko v. Mitchell No. 00-4385
_______________ A striking fact about the record in this case is the complete absence of any forensic evidence linking Spirko to the crime. DISSENT There are no fingerprints, footprints, fibers, blood, or stolen _______________ items to bolster the state’s case. Nor is there any written or recorded confession of guilt by Spirko or incriminating RONALD LEE GILMAN, Circuit Judge, dissenting. testimony by a witness who turned state’s evidence. (Although two of Spirko’s former cellmates testified at trial I. OVERVIEW that Spirko admitted to them that he murdered Mottinger, those cellmates have subsequently recanted their testimony, As conceded in the appellate brief of Spirko’s counsel, either directly or indirectly.) We are thus left with nothing “John Spirko lied.” This incontestible conclusion is well- other than the three shaky pillars described above. This does documented in the majority opinion’s recitation of the many not negate the fact that a jury could, in a fairly conducted inconsistent stories that Spirko told to Inspector Hartman. trial, find Spirko guilty beyond a reasonable doubt; but the But lying is not a capital offense. And while the record leaves closeness of the question obviates the possibility of harmless no doubt about Spirko’s falsifications, it leaves me with error and requires us to be more sensitive to any material considerable doubt as to whether he has been lawfully procedural violations by the state. See Lindsey v. King, subjected to the death penalty in light of the state’s alleged 769 F.2d 1034, 1042 (5th Cir. 1985) (stating that “petitioner Brady violation. should receive the benefit of the doubt” in a capital case where “there is a real possibility that the wrong man is to be The case against Spirko is far from overwhelming. It is executed”). substantially based upon three evidentiary pillars: (1) an eyewitness who was “100% sure” that Spirko’s best friend, II. ALLEGED BRADY VIOLATION Delaney Gibson, was at the Elgin, Ohio post office when the postmistress was abducted, (2) another eyewitness who was The alleged procedural violation that is key to this appeal “70% sure” that Spirko was also at the scene, and (3) Spirko’s is the very one discussed by the majority opinion—Spirko’s knowledge of factual details concerning the murder that were claim that the state failed to turn over to him exculpatory and not known to the general public. Each of these pillars, impeachment information that would have materially aided however, has a foundation of sand. The “certain” his defense. Pursuant to Brady v. Maryland, 373 U.S. 83 identification of a clean-shaven Gibson is cast in grave doubt (1963), “the suppression by the prosecution of evidence both by photographs and receipts in the possession of the favorable to an accused upon request violates due process state, but not disclosed to the defense, indicating that Gibson where the evidence is material either to guilt or to had a full beard immediately before the date of the abduction, punishment.” Id. at 87. The Supreme Court has summarized and by statements made to investigators by several people the components of a Brady violation as follows: who said that Gibson had a full beard during the entire summer of 1982. As for Spirko’s presence at the scene, a The evidence at issue must be favorable to the accused, confidence level of only 70% is far from “beyond a either because it is exculpatory, or because it is reasonable doubt.” Finally, Spirko’s knowledge could have impeaching; that evidence must have been suppressed by come from second-hand repetition rather than first-hand the State, either willfully or inadvertantly; and prejudice participation. must have ensued. No. 00-4385 Spirko v. Mitchell 23 24 Spirko v. Mitchell No. 00-4385
Strickler v. Greene, 527 U.S. 263, 281-82 (1999). Prejudice “100% sure” that she saw Spirko’s friend Gibson outside the exists “only if there is a reasonable probability that, had the post office on the morning of August 9, 2002. When evidence been disclosed to the defense, the result of the interviewed on the day of the incident, Siebert described the proceeding would have been different.” United States v. man she had seen as clean-shaven. She also selected a Bagley, 473 U.S. 667, 682 (1985). photograph of a clean-shaven Gibson from an array in late January of 1983, more than five months after the crime On habeas review, a federal court must ask whether the occurred. defendant “received a fair trial, understood as a trial resulting in a verdict worthy of confidence. A reasonable probability The withheld evidence directly contradicts both the of a different result is accordingly shown when the government’s theory of the case and Siebert’s testimony. government’s evidentiary suppression undermines confidence Gibson told investigators that he was in North Carolina on in the outcome of the trial.” Kyles v. Whitley, 514 U.S. 419, August 9, 1982. His story was at least partially corroborated 434 (1995) (quotation marks omitted). “Allegations of by interviews with Gibson’s wife, Margie, and with Margie’s violations of Brady v. Maryland, 373 U.S. 83 (1963), present sister and brother-in-law, Brenda and Michael Bentley, who mixed questions of law and fact which this Court reviews de accompanied the Gibsons on the trip to North Carolina. The novo.” Carter v. Bell, 218 F.3d 581, 591 (6th Cir. 2000) Bentleys told investigators that they had last seen the Gibsons (parallel citations omitted). in Asheville, North Carolina at approximately 6 p.m. on August 8. Asheville is roughly 500 miles away from Elgin, Because Spirko initiated his federal habeas corpus action in Ohio. March of 1995, prior to the effective date of AEDPA, we apply the pre-AEDPA version of 28 U.S.C. § 2254. Lindh v. Although the state informed Spirko that investigators had Murphy, 521 U.S. 320, 336 (1997). Federal courts, prior to spoken with Margie Gibson and Michael Bentley, it failed to AEDPA, were required to hold an evidentiary hearing disclose the fact that the investigators had received physical “[w]here the facts are in dispute” and “the habeas applicant evidence during those interviews. The Bentleys provided the did not receive a full and fair evidentiary hearing in a state investigators with receipts from an automotive store in North court, either at the time of the trial or in a collateral Carolina dated August 7 and from a hotel in Newport, proceeding.” Townsend v. Sain, 372 U.S. 293, 312 (1963), Tennessee where the Bentleys stayed on the night of overruled on other grounds by Keeney v. Tamayo-Reyes, 504 August 8, along with 40 photos of themselves and the U.S. 1, 6 (1992). Gibsons that were allegedly taken that weekend. Margie Gibson provided investigators with 18 similar photos A. Is the evidence in question favorable to Spirko? allegedly taken during the same period of time. All of the photos showed Gibson with a full beard. These photos and The first step in analyzing the Brady issue is to ask whether the receipts corroborate Gibson’s alibi and therefore tend to the withheld evidence is favorable to Spirko as either prove, although they cannot conclusively demonstrate, that exculpatory or impeaching. At trial, the state’s theory of the both the government’s theory of the case and Siebert’s case was that Spirko and Gibson jointly abducted and eyewitness identification were faulty. Because the withheld murdered Mrs. Mottinger. In support of this theory, the state physical evidence appears to be both exculpatory and elicited the testimony of Opal Siebert, who lived across the impeaching, it is favorable to Spirko within the meaning of street from the Elgin post office. Siebert testified that she was Brady. No. 00-4385 Spirko v. Mitchell 25 26 Spirko v. Mitchell No. 00-4385
B. Was the evidence at issue suppressed by the state? Unlike the situation in Todd, Spirko was not “aware of the essential facts that would enable him to take advantage of the Brady next requires us to determine whether the evidence exculpatory evidence.” 920 F.2d at 405. The “essential in question was suppressed by the state. This court has held facts” in this case appear to be that the state possessed that Brady is not violated where the defendant is “aware of material photos and receipts, and these facts were not the essential facts that would enable him to take advantage of disclosed to Spirko. Todd is therefore distinguishable. the exculpatory evidence,” even if the government does not Spriko has thus presented a prima facie case that the physical disclose the evidence itself. United States v. Todd, 920 F.2d evidence at issue was suppressed by the state, satisfying the 399, 405 (6th Cir. 1990). second component of a Brady violation. In Todd, the government refused to disclose reports C. Was Spirko prejudiced by the suppression of the prepared after FBI interviews with Todd’s brother and the favorable evidence? brother’s girlfriend. Id. at 404. This court concluded that no Brady violation occurred because Todd was informed before The final step in the Brady analysis is to determine whether trial that both interviewees had potentially exculpatory Spirko was prejudiced by the state’s suppression of evidence information, and Todd had an opportunity to interview them. favorable to his defense. In other words, does the suppression Id. at 405. The “essential facts” in Todd, then, were the of the pertinent evidence “undermine[] confidence in the identities of the two potential witnesses; once Todd had that outcome of the trial”? Kyles v. Whitley, 514 U.S. 419, 434 information, he was free to interview them in order to obtain (1995) (quotation marks omitted). This question effectively the exculpatory evidence. requires us to assess the probability of a different outcome if the state had disclosed its possession of the photos and In the present case, in contrast, the issue is not whether receipts to Spirko. Spirko has presented some evidence on Spirko could have interviewed the Gibsons and the Bentleys, this point. His trial counsel have signed affidavits stating that but whether he could have obtained the photos and receipts they doubted the credibility of Gibson’s alibi and therefore that they had given to the state. The prosecution informed did not pursue that line of defense. The lawyers contend that Spirko only that “pictures are purported to have been taken of if they had known about the evidence corroborating Gibson’s the weekend in question.” This statement is misleading. A alibi, they would have used that evidence to attack the state’s statement informing Spirko that investigators had received case at trial. pictures that were purportedly of the weekend in question would have been accurate; but it was entirely incorrect for the Whether this would have been sufficient to change the prosecution to say that “pictures are purported to have been jury’s verdict or Spirko’s sentence is very much in dispute. taken . . . .” At the time the statement was made, the The majority contends that using the Gibson alibi evidence prosecution knew that photos had in fact been taken and were would have actually increased Spirko’s chances of conviction in the state’s possession. There was nothing “purported” and a death sentence because about those facts. But the statement to Spirko suggested that the state possessed no photos. And the prosecution made no the Gibson evidence not only does not eliminate Spirko mention of the Bentley’s receipts that tended to corroborate as the perpetrator, it eliminates his best defense. If Gibson’s presence in North Carolina on the date of the Gibson was not a participant in the murder, then he was abduction. not, as Spirko told the investigators and claimed at trial, No. 00-4385 Spirko v. Mitchell 27 28 Spirko v. Mitchell No. 00-4385
the source of all of Spirko’s detailed knowledge of the different result is accordingly shown.” Kyles, 514 U.S. at 434 crime. And if Spirko did not learn the details of this (quotation marks omitted). crime from Gibson, from whence did all of that detail come? The Fifth Circuit made this point in a similar case involving an alleged Brady violation: “This is a capital case . . . and one Maj. Op. at 15. But Spirko presents an equally plausible, but moreover in which our reading of the evidence shows there is very different, outcome: a real possibility that the wrong man is to be executed. In such a case, if ever, petitioner should receive the benefit of If the prosecution had fulfilled its Brady obligations, Mr. the doubt.” Lindsey v. King, 769 F.2d 1034, 1043 (5th Cir. Spirko would not have testified as to Delaney Gibson’s 1985); see also Kyles, 514 U.S. at 422 (stating that a federal alleged involvement. . . . Moreover, had the prosecution court’s “duty to search for constitutional error with turned over the Brady material, Mr. Spirko’s attorneys painstaking care is never more exacting than it is in a capital could have used it to show that his statements to case”). Like the Fifth Circuit in Lindsey, we are dealing with investigators concerning Delaney Gibson—like all of his a capital case where the defendant’s conviction and death other statements—were not true. . . . Armed with this sentence rests on relatively weak evidence—the three shaky evidence, the defense would have destroyed the pillars discussed above. I therefore believe that any doubt prosecution’s fundamental theory of the case, would have about whether there is a reasonable probability of a different completely undermined Mrs. Siebert’s testimony, and result should be resolved in favor of Spirko. would have discredited Mr. Spirko’s statements to investigators concerning Delaney Gibson. Such evidence III. EVIDENTIARY HEARING plainly would have had a significant impact on the overall trial . . . . For all of the reasons set forth above, this court should remand the case to the district court for an evidentiary hearing Spirko further states that on Spirko’s Brady claim. Under pre-AEDPA law, which we must follow in this case, a habeas petitioner is entitled to an even if [his] statements to investigators included evidentiary hearing if “for any reason it appears that the state information that only someone involved in the crime trier of fact did not afford the habeas applicant a full and fair could know, such statements do not demonstrate that [he] fact hearing.” Townsend v. Sain, 372 U.S. 293, 313 (1963), was involved in the crime. He could well have obtained overruled on other grounds by Keeney v. Tamayo-Reyes, 504 the information from someone who was (or even was U.S. 1, 6 (1992). Spirko points out that, despite his requests, not) involved in the crime or he could have obtained the he has not received an evidentiary hearing on his Brady claim information from the investigators themselves. in any state or federal court. An evidentiary hearing would allow the district court to determine whether the state in fact Spirko’s arguments are at least plausible. I am therefore violated Spirko’s constitutional rights by not turning over to unable to say with confidence that the prosecution’s failure to the defense the photos and receipts in its possession. disclose the photos and receipts was harmless. Because “the Accordingly, this court should vacate the judgment of the government’s evidentiary suppression undermines confidence district court and remand the case for an evidentiary hearing in the outcome of the trial,” “[a] reasonable probability of a on Spirko’s Brady claim.