Keith LaMar v. Marc Houk , 2015 FED App. 0193P ( 2015 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 15a0193p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
KEITH LAMAR, ┐
Petitioner-Appellant/Cross-Appellee, │
│
│ Nos. 11-3131/3153
v. │
>
│
MARC C. HOUK, Warden, │
Respondent-Appellee/Cross-Appellant. ┘
Appeal from the United States District Court
for the Southern District of Ohio at Cincinnati.
No. 04-00541—Thomas M. Rose, District Judge.
Argued: December 2, 2014
Decided and Filed: August 18, 2015
Before: CLAY, ROGERS, and KETHLEDGE, Circuit Judges.
_________________
COUNSEL
ARGUED: David L. Doughten, Cleveland, Ohio, for Appellant/Cross-Appellee. Stephen E.
Maher, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellee/Cross-Appellant. ON BRIEF: David L. Doughten, Cleveland, Ohio, Kathleen
McGarry, MCGARRY LAW OFFICE, Glorieta, New Mexico, for Appellant/Cross-Appellee.
Stephen E. Maher, OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for
Appellee/Cross-Appellant. James L. Hardiman, AMERICAN CIVIL LIBERTIES UNION OF
OHIO FOUNDATION, INC., Cleveland, Ohio, Staughton Lynd, AMERICAN CIVIL
LIBERTIES UNION OF OHIO FOUNDATION, INC., Niles, Ohio, for Amicus Curiae.
1
Nos. 11-3131/3153 LaMar v. Houk Page 2
_________________
OPINION
_________________
ROGERS, Circuit Judge. Keith LaMar appeals a district court judgment denying his
habeas corpus petition. LaMar was convicted of murdering five fellow inmates during a prison
riot in Ohio; he received death sentences for four of the killings and a life sentence for the fifth.
On appeal, LaMar argues that the State withheld favorable evidence in violation of Brady v.
Maryland, 373 U.S. 83 (1963). He also argues that the state trial court denied him due process
by refusing to sever one count from the remaining charges, that there was insufficient evidence
for one of the capital sentencing aggravators, and that he was denied due process by
prosecutorial misconduct during his trial. The Warden, Marc Houk, cross-appeals, arguing that
LaMar’s petition was time-barred. The district court properly denied habeas relief.
I.
The facts leading to LaMar’s convictions were summarized by the Ohio Supreme Court
as follows:
On the afternoon of April 11, 1993, a group of Muslim inmates seized control of
cellblock “L” (“L–Block”) at SOCF [, the Southern Ohio Correctional Facility].
The rioting inmates took several guards hostage and locked inmates considered
“snitches” into various cells in the L–6 section of L–Block. The Muslim inmates
maintained control of unit L–6 while two other dominant groups—the Aryan
Brotherhood (a racist group of white inmates) and the Black Gangster Disciples (a
prison gang)—controlled other units within L–Block.
On the day of the riot, LaMar was an SOCF inmate serving a sentence of eighteen
years to life for a 1989 murder conviction. LaMar, who was not a Muslim, did
not plan or participate in the prison takeover and was in the prison recreation yard
when the riot began. But after the commotion began, LaMar and two other
inmates, Louis Jones and Derek Cannon, went back inside L–Block to check the
personal belongings in their respective cells. When the three were unable to get
back outside because the Muslims had closed access to and from L–Block, LaMar
said to Jones and Cannon, “Ain’t no need in us staying in here getting caught up
in something we’re not a part of. Let’s kill all the snitches and get out to the
yard.”
LaMar approached Cecil Allen, a leader of the Muslim group of inmates, and
asked, “if we kill the snitches, could we be let out to the yard so we don’t be a
Nos. 11-3131/3153 LaMar v. Houk Page 3
part of this?” Allen consulted with the Muslim leadership and returned a few
minutes later to tell LaMar that the “orders has [sic] been granted to kill the
snitches.”
After Allen granted permission to “kill the snitches,” LaMar, Jones, and Cannon
walked around the L–Block corridor to enlist other inmates to help them.
Eventually, the group recruited Hiawatha Frezzell (a.k.a. “Pittsburgh”), Eric
Scales (a.k.a. “Tiger”), Derrick Mathews, Rasheem Matthews, Albert Young
(a.k.a. “Da–Da”), and Gregory Curry to join the newly formed death squad.
LaMar’s group proceeded to unit L–2, where they retrieved bats, shovels, and
weight bars to use as weapons. The men also wore masks fashioned from T-
shirts, towels, and bandannas.
After arming and disguising themselves, LaMar and his group returned to L–6.
Inmate Timothy Grinnell was operating the console that controlled the cell doors
within L–6. LaMar led his group to the upper tier of the cellblock and instructed
Grinnell to open a cell occupied by Andre Stockton. After Grinnell complied
with the demand, LaMar and Curry entered the cell and beat Stockton with a
shovel and a baseball bat. Other members of the group dragged Stockton from
the cell and participated in the beating.
After beating Stockton, the group went downstairs to the lower tier of L–6.
LaMar yelled at Grinnell to open the cells occupied by inmates Ellis Walker and
Darrell Depina. After Walker refused to comply with LaMar’s command to come
out of the cell, LaMar and Curry dragged him to the main floor of the cellblock
and beat him repeatedly. Other members of the death squad also participated in
Walker’s beating. LaMar then ordered Depina out of his cell. When Depina
refused, LaMar entered the cell and hit him several times before dragging him to
the main floor, as he had done with Walker. LaMar continued to beat Depina
with a baseball bat, striking him several times. Other members of LaMar’s group
joined in beating Depina, who died from his injuries.
When LaMar finished beating Depina, he ordered Grinnell to open a cell occupied
by Bruce Vitale. When Vitale refused to come out of the cell, LaMar hit him on
the head with a shovel. LaMar continued beating Vitale on the head and at one
point knocked a tooth out of Vitale’s mouth. Vitale tried to defend himself by
crawling under the bed, but LaMar and Curry dragged him out of the cell and
continued the beating, joined by other members of the death squad. At one point,
LaMar told Jones, “I didn’t bring you all in here to stand around,” when he
noticed that Jones was not participating in the assault. Vitale was still alive when
the group left him but died after Frezzell and another member of LaMar’s group
stabbed and beat him again.
LaMar continued on to a nearby cell occupied by Thomas Taylor, another
suspected snitch. Before LaMar could order Taylor’s cell opened, a Muslim
inmate named Harris intervened and told LaMar that Taylor was under Muslim
protection. LaMar angrily pushed Harris out of the way, saying, “If he [Taylor] is
in there, he’s a snitch. Fuck it. Kill him.” After Taylor told LaMar that he was
Nos. 11-3131/3153 LaMar v. Houk Page 4
not a snitch, LaMar agreed to spare Taylor’s life, but only if Taylor would kill
Albert Staiano, who was locked in an adjacent cell. To save his own life, Taylor
agreed. LaMar ordered Taylor’s and Staiano’s cells opened and commanded one
of the other inmates to give a baseball bat to Taylor. Staiano tried to run from his
cell, but fell to the ground when Frezzell tripped him. Taylor hit Staiano over the
head several times with the baseball bat and then, after the bat broke, with a fire
extinguisher. Other death-squad members, not including LaMar, joined in the
assault and stabbed Staiano repeatedly. When the beating ended, LaMar ordered
Taylor to return to his cell. Taylor eventually pleaded guilty to involuntary
manslaughter for his role in Staiano’s death.
The death squad’s next stop was a cell occupied by Michael Trocadero and four to
five other inmates. LaMar ordered Grinnell to open the cell, but Grinnell refused,
saying that the Muslim leadership did not want those inmates killed. As LaMar
and his group began to leave L–6, it passed the cell of William Svette, an elderly
inmate who used a walker to move himself around. Svette, who appeared to have
been beaten earlier, cursed the death squad with obscenities and racial epithets.
On LaMar’s order, Grinnell opened Svette’s cell, where LaMar and Curry beat
Svette over the head with a baseball bat and a shovel. LaMar started to leave the
cell but returned to beat Svette again after noticing that Svette’s legs were
moving.
Svette remained alive after the death squad left his cell. A short time later, on
Grinnell’s instructions to make sure all of the victims in L–6 were dead, inmate
Eric Girdy struck Svette across the head twice more with a baseball bat. Svette
continued to live after Girdy’s beating and was still alive after inmate Robert
Bass, on orders from one of the Muslim inmates, dragged Svette’s body to a ramp
near a prison recreation area. Svette eventually died after yet another inmate,
Freddie Frakes, beat him yet again with a baseball bat.
After finishing their rampage, LaMar and the others left L–Block and joined the
large contingent of inmates gathered in the recreation yard. Many of the
participants in the L–6 killings remained together and discussed what had
transpired. During this time, LaMar saw inmate Dennis Weaver in the recreation
yard and told Curry, “I wish Weaver was in there. I’d have killed him, too.”
Early the following morning, law enforcement officers surrounded the
approximately three hundred inmates gathered in the recreation yard and herded
them to a gymnasium on the SOCF grounds, where the inmates were handcuffed
and taken to various cells around the prison. LaMar occupied a cell in K–Block
with nine other inmates: Scales, Frezzell, Weaver, William “Geno” Washington,
Jeffrey Mack, Michael Childers, Ricky Rutheford, William Bowling, and John
Malveaux. These ten inmates remained in the cell without incident for the rest of
the day.
The next day, however, tensions began rising in the cell. LaMar and Scales began
harassing Weaver, accusing him of being a snitch and telling him that “all
snitches should be killed.” Weaver denied being a snitch and urged his fellow
Nos. 11-3131/3153 LaMar v. Houk Page 5
cellmates to protest what he perceived as mistreatment of the inmates who were
not involved in the riot. LaMar became incensed by Weaver’s comments, yelled
“shut up, snitch,” punched Weaver in the face, and relegated him to a corner of
the cell. Scales and Mack also joined in the attack on Weaver. LaMar later
ordered that Weaver, Malveaux, Bowling, and Childers be tied up.
Later that day, LaMar announced to the cellmates that “I want Mr. Weaver dead. I
want that snitch dead right now.” LaMar then accused Bowling of being a snitch
and threatened to kill Bowling if Bowling did not kill Weaver. LaMar untied
Bowling, handed him some string, and watched Bowling choke Weaver. LaMar
also threatened Rutheford, who then aided Bowling in the assault by holding
Weaver’s feet. LaMar became impatient with Bowling’s progress and told
Childers, “[I]f you want to live, if you ain’t no snitch, then you help kill him.”
LaMar then untied Childers, who complied with LaMar’s order by choking
Weaver, using the ropes with which LaMar had tied Childers’s wrists. When
Childers began hitting and kicking Weaver, LaMar told him to “just strangle him”
because LaMar wanted “to make it look like he hung hisself.” LaMar aided
Childers by stuffing toilet paper and pieces of plastic down Weaver’s throat in an
effort to silence him. Weaver eventually died while Childers was choking him.
After Weaver died, LaMar instructed Bowling and Malveaux to move the body to
a corner of the cell. He also ordered them to tie a string from a cell mattress
around Weaver’s neck “and hook it to the coat hook to make it look like a
suicide.” And before corrections officers removed Weaver’s body, LaMar
instructed everyone in the cell to tell them that Weaver had killed himself.
State v. LaMar, 767 N.E.2d 166, 179–82 (Ohio 2002).
LaMar was tried by jury and, for the five killings, was convicted of a total of nine counts
of aggravated murder. (J.A. vol. 2 at 661–63.)
For each of the first day’s killings—those of Depina, Vitale, Staiano, and Svette—LaMar
was convicted under two different theories: prior-calculation-and-design murder and felony
murder. The jurors also convicted him of the four aggravating circumstances attached to each of
these eight counts of aggravated murder: one, he committed the murder while a prisoner in a
detention facility (the “murder-in-prison” aggravator); two, he had previously been convicted of
murder (the “prior-murder” aggravator); three, the present murder was part of a course of
conduct in which he purposely killed or attempted to kill two or more people (the “mass-murder”
aggravator); and four, he committed the present murder while committing kidnapping (the
“kidnapping” aggravator). (J.A. vol. 1 at 492–502; id. vol. 2 at 535–36, 543–44, 551–52, 556–
57, 561–62, 566–67, 576–77, 581–82, 662–63.)
Nos. 11-3131/3153 LaMar v. Houk Page 6
For the Weaver killing, however, only prior-calculation-and-design murder was charged
and only the murder-in-prison, prior-murder, and mass-murder aggravators were attached. The
jurors convicted LaMar of this count and these aggravators. (J.A. vol. 1 at 502–03; id. vol. 2 at
571–72, 662–63.)
For the two Staiano aggravated-murder counts, the jurors recommended and the trial
court imposed a life sentence with parole eligibility after 30 years. (J.A. vol. 2 at 610, 618, 661,
664–65, 679.) For the other seven aggravated-murder counts, the jurors recommended and the
trial court imposed four sentences of death, one for each person murdered: Depina, Vitale,
Svette, and Weaver. (J.A. vol. 2 at 605, 608, 614, 617–18, 661, 664–65, 677–79.) The court
ordered all sentences served consecutively. (J.A. vol. 2 at 665; see also id. at 679.)
LaMar unsuccessfully sought relief via direct appeal, State v. LaMar, No. 95CA31, 1998
WL 514548 (Ohio Ct. App. Aug. 13, 1998) (unpublished), aff’d, 767 N.E.2d 166 (Ohio 2002),
reh’g denied, 770 N.E.2d 1050 (Ohio 2002), cert. denied, 537 U.S. 1057 (2002), postconviction
proceedings, State v. LaMar, No. 98 CA 23, 2000 WL 297413 (Ohio Ct. App. Mar. 17, 2000)
(unpublished), juris. denied, 731 N.E.2d 1140 (Ohio 2000), cert. denied, 531 U.S. 1055 (2000),
motions for new trial, State v. LaMar, No. 94-CR-136 (Lawrence C.P. Apr. 24, 2001)
(unpublished), aff’d, No. 01CA17, 2002 WL 31518186 (Ohio Ct. App. May 8, 2002)
(unpublished), juris. denied, 775 N.E.2d 856 (Ohio 2002), and a Murnahan motion (Ohio’s
vehicle for bringing appellate-counsel-ineffectiveness claims, see State v. Murnahan, 584 N.E.2d
1204 (Ohio 1992)), State v. LaMar, No. 95CA31 (Ohio Ct. App. Feb. 13, 2004) (unpublished),
aff’d, 812 N.E.2d 970 (Ohio 2004) (per curiam), reh’g denied, 815 N.E.2d 680 (Ohio 2004), cert.
denied, 543 U.S. 1168 (2005).
In 2004, LaMar filed a federal habeas corpus petition raising 25 claims. The Warden
argued that the petition was time-barred. The district court held that LaMar was entitled to
statutory tolling, but denied the petition. LaMar v. Ishee, No. 1:04-cv-541, 2010 WL 5574467
(S.D. Ohio July 30, 2010) (unpublished). The district court also denied LaMar’s motion to
amend his federal petition because any amendment was barred by the statute of limitations.
LaMar appeals. The Warden cross-appeals on the issue of whether LaMar’s federal
petition was time-barred.
Nos. 11-3131/3153 LaMar v. Houk Page 7
The district court granted LaMar a certificate of appealability on five claims:
1) whether the State withheld favorable evidence in violation of Brady v. Maryland, 373 U.S. 83
(1963); 2) whether the trial court erred in refusing to sever the Weaver count from the remaining
charges; 3) whether the State presented insufficient evidence of the kidnapping aggravator;
4) whether the prosecutor committed misconduct; and 5) whether the district court erred in
denying LaMar’s motion to amend his federal petition on the ground that any amendment was
barred by the statute of limitations. LaMar v. Ishee, No. 1:04-cv-541, 2011 WL 2555351 (S.D.
Ohio June 6, 2011) (unpublished); LaMar v. Ishee, No. 1:04-cv-541, 2011 WL 2555354 (S.D.
Ohio June 27, 2011) (unpublished). This court declined to expand the COA. The Warden’s
cross-appeal does not require a COA. See Fed. R. App. P. 22(b)(3).
LaMar filed his federal petition after the effective date of the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), whose standards therefore govern. See Lindh v.
Murphy, 521 U.S. 320, 326–27 (1997). District court rulings on legal questions and mixed
questions of law and fact are reviewed de novo. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir.
1999). De novo review does not extend, however, to the state court’s conclusions. This court
may not grant habeas relief on any claim adjudicated on the merits in state court unless the
adjudication resulted in a decision that was 1) contrary to, or involved an unreasonable
application of, clearly established federal law as determined by the Supreme Court or 2) based on
an unreasonable determination of the facts in light of the evidence presented to the state courts.
Slagle v. Bagley, 457 F.3d 501, 513 (6th Cir. 2006) (citing 28 U.S.C. § 2254(d)). The petitioner
carries the burden of proving that this standard has been met. Cullen v. Pinholster, 131 S. Ct.
1388, 1398 (2011).
In analyzing whether a state court decision is contrary to or an unreasonable application
of clearly established Supreme Court precedent, a federal court may look only to the holdings of
the Supreme Court’s decisions, not the dicta. Williams v. Taylor, 529 U.S. 362, 412 (2000). A
state court decision on the merits is contrary to clearly established Supreme Court precedent only
if the reasoning or the result of the decision contradicts that precedent. Early v. Packer, 537 U.S.
3, 8 (2002).
Nos. 11-3131/3153 LaMar v. Houk Page 8
To violate the unreasonable-application clause, after identifying the correct governing
legal principle from the Supreme Court’s decisions, the state court decision must
(a) unreasonably apply it to the facts, or (b) either unreasonably extend or unreasonably refuse to
extend a legal principle from Supreme Court precedent to a new context. Williams, 529 U.S. at
407–08. The state-court application of Supreme Court precedent must have been “objectively
unreasonable,” not simply erroneous or incorrect. Id. at 409–11.
The contrary-to/unreasonable-application analysis does not apply to claims that the state
court resolved without deciding the federal constitutional issues, as when the claims were held
procedurally barred. Instead, if the federal court reaches their merits, they are reviewed under
pre-AEDPA law (de novo review applied to legal or mixed questions). Maples v. Stegall,
340 F.3d 433, 436–37 (6th Cir. 2003). State-court factual findings are presumed correct unless
the applicant rebuts them by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
II.
We need not decide whether LaMar’s petition was timely or saved by equitable tolling
because his petition fails on the merits. The Warden cross-appeals from the judgment of the
district court, arguing that LaMar’s habeas petition was untimely and is not saved by equitable
tolling. AEDPA’s one-year statute of limitations is not jurisdictional. See Day v. McDonough,
547 U.S. 198, 205–206 (2006). Because untimeliness is not a jurisdictional bar to review, we
may assume the petition was timely and proceed to uphold the denial of relief on the merits. See
Smith v. State of Ohio Dep’t of Rehab. & Corr., 463 F.3d 426, 429 n.2 (6th Cir. 2006).
III.
LaMar’s Brady claim fails because, even if favorable evidence was suppressed, LaMar
was not prejudiced. A prosecutor violates Brady when he does not disclose evidence that is
favorable to the accused and material to guilt or punishment. See Brady, 373 U.S. at 87.
Evidence is favorable if either exculpatory or impeaching, see Strickler v. Greene, 527 U.S. 263,
281–82 (1999), and material “if there is a reasonable probability that, had the evidence been
disclosed to the defense, the result of the proceeding would have been different.” Kyles v.
Whitley, 514 U.S. 419, 433 (1995) (internal quotation marks omitted). A reasonable probability
Nos. 11-3131/3153 LaMar v. Houk Page 9
is shown “when the government’s evidentiary suppression undermines confidence in the
outcome of the trial.” Id. at 434 (internal quotation marks omitted). This is lower than the more-
probable-than-not standard, see id., but the difference between the two “is slight and matters only
in the rarest case. The likelihood of a different result must be substantial, not just conceivable.”
Harrington v. Richter, 562 U.S. 86, 112 (2011) (internal quotation marks and citation omitted).
In evaluating whether this reasonable probability exists, the court considers the undisclosed
evidence collectively. See Kyles, 514 U.S. at 436–37, 436 n.10. The evidence must also have
been “suppressed by the State, either willfully or inadvertently.” Strickler, 527 U.S. at 282. The
defendant has the burden of proving a Brady violation. See id. at 291, 296; see also Carter v.
Bell, 218 F.3d 581, 601 (6th Cir. 2000). LaMar argues that the state suppressed favorable
evidence material to his guilt. Some of the evidence identified by LaMar was not suppressed.
The remaining evidence, even if it was suppressed, was not material.
Some of the evidence urged on appeal as part of LaMar’s Brady claim was disclosed
before trial. According to LaMar, the statements of inmate Michael Trocadero were suppressed
by the State. But Trocadero made many statements (see J.A. vol. 10 at 4779–803, 4921) and
some were revealed to LaMar before trial. (J.A. vol. 10 at 4890–91.) With one exception, those
statements LaMar proffers in support of his Brady claim are statements he knew about before
trial. (Compare J.A. vol. 10 at 4890 with First Br. 54, 65–66 (both discussing Trocadero
statements regarding inmates Robert Goodgame, Charles Outlaw, Emanuel Newell, and Anthony
Copeland.)) LaMar also claims that the State suppressed the statements of Jeffrey Simmons.
Defense counsel obtained those statements from the prosecutor’s office before trial. (R.E. 165 at
346–48, 358–61, PgID# 3559–61, 3571–74; also compare id. at 358–59, PgID# 3571–72 with
J.A. vol. 10 at 4805–31; see also J.A. vol. 1 at 270.) Accordingly, this evidence was not
suppressed.
The remaining alleged Brady evidence consists of police interviews with 12 inmates
concerning the first day’s killings. None of the evidence concerns the Weaver killing. We will
assume that this evidence was suppressed. This suppressed evidence does not undermine
confidence in the verdict because the proffered Brady evidence is either consistent with the
State’s theory or contradicted by strong evidence of LaMar’s guilt. At trial, witnesses disagreed
Nos. 11-3131/3153 LaMar v. Houk Page 10
on certain details, including the order of some of the deaths and the death squad’s exact
membership, but the State established the following theory of events.
On the first day, it was LaMar who suggested killing the snitches and LaMar who
approached a Muslim leader to ask, “If we kill the snitches, could we be let out to the yard so we
don’t be a part of this?” And after the Muslims granted permission for the killings, it was LaMar
who led the death squad. (LaMar, 767 N.E.2d at 179, ¶¶ 3–5; id. at 212, ¶¶ 194, 197; J.A. vol. 3
at 1076 (internal quotation marks omitted).)
The Ohio Supreme Court placed the number in that squad at nine, see LaMar, 767 N.E.2d
at 179, ¶ 5, but estimates at trial varied. (See J.A. vol. 5 at 2281 (Robert Bass: “About five or
six, somewhere”), 2492–93 (Anthony Walker: “I don’t know. About maybe eight [total]. I don’t
know. It was only a few other guys, but I can’t say for sure”); id. vol. 6 at 2832, 2859 (Louis
Jones: eight total).) Besides LaMar, the Ohio Supreme Court listed these as members: Louis
Jones, Derek Cannon, Hiawatha “Pittsburgh” Frezzell, Eric “Tiger” Scales, Derrick Mathews,
Rasheem Matthews, Albert “Da-Da” Young, and Gregory Curry. (LaMar, 767 N.E.2d at 179,
¶¶ 3, 5; but see J.A. vol. 5 at 2455–57, 2477–78, 2484–85 (testimony naming Devin Postell as a
member—which, if he really was also a member, would bring the total up to ten); see also J.A.
vol. 6 at 2643–44 (another witness not sure whether Postell was there or not).)
“The men . . . wore masks fashioned from T-shirts, towels, and bandannas.” LaMar,
767 N.E.2d at 179, ¶ 5; see also id. at 179, ¶ 6. Witnesses differed as to whether LaMar himself
was masked when they saw him. Three said, yes (see J.A. vol. 3 at 1077; id. vol. 5 at 2372,
2377, 2380–81, 2464–65; id. vol. 6 at 2725, 2829, 2832, 2859); one, no (see id. vol. 6 at 2642);
and one, that he was “almost sure” LaMar had a T-shirt over part of his face, but that the witness
could still recognize LaMar through his walk and physique. (J.A. vol. 5 at 2281.) All those who
said LaMar was masked were emphatic that they nonetheless knew it was LaMar—because of
his voice (J.A. vol. 5 at 2380–81) or because, as two witnesses testified, they actually saw him
putting the mask on (see id. vol. 6 at 2725, 2829).
LaMar’s gang first attacked two victims they did not kill: Andre Stockton and Ellis
Walker. Then the killings began. First was Darrell Depina, whom LaMar beat, dragged from the
Nos. 11-3131/3153 LaMar v. Houk Page 11
cell, then beat some more, other members of the death squad joining in. Depina died from his
injuries. See LaMar, 767 N.E.2d at 180, ¶¶ 6–7.
Next was Bruce Vitale. LaMar beat him on the head with a shovel, knocking a tooth out
of his mouth. Vitale tried crawling under his bed, but LaMar and Curry just dragged him out of
the cell and beat him some more, other members of the squad joining in. “Vitale was still alive
when the group left him but died after Frezzell and another member of LaMar’s group [not
LaMar] stabbed and beat him again.” (Id. at 180, ¶ 8; compare J.A. vol. 3 at 1078.)
Then came the Albert Staiano killing. LaMar had gone to Thomas Taylor’s cell, but a
Muslim inmate intervened and said Taylor was under Muslim protection. LaMar, 767 N.E.2d at
180, ¶ 9. LaMar disagreed with this decision: “No. If he’s in there, he’s a snitch. Fuck it. Kill
him.” (J.A. vol. 5 at 2519 (internal quotation marks omitted); see also LaMar, 767 N.E.2d at 180,
¶ 9.) Taylor denied the charge. LaMar agreed to spare him if Taylor killed Staiano, in the next
cell. Taylor agreed. LaMar ordered both cells opened and told one of the other inmates to give
Taylor a baseball bat. Staiano tried running, but Frezzell tripped him. Then Taylor beat Staiano
over the head with the bat and, after that broke, a fire extinguisher. “Other death-squad
members, not including LaMar, joined in the assault and stabbed Staiano repeatedly.” LaMar,
767 N.E.2d at 180, ¶ 9. LaMar ordered Taylor back to his cell.
That killing done, the death squad went to a cell occupied by Michael Trocadero and four
or five other inmates. A Muslim representative told LaMar the Muslim leadership did not want
them killed, so the death squad started to leave, going by the cell of William Svette, “an elderly
inmate who used a walker to move himself around.” Id. at 180, ¶ 10. The old man was already
injured, someone else having beaten him up before the death squad even came by. (See J.A.
vol. 5 at 2394, 2482 (face beaten up), 2483 (Svette “was already bleeding. Blood was already on
the floor and stuff. So somebody else had—already had hit him”); see also LaMar, 767 N.E.2d
at 180, ¶ 10.) As the death squad passed by, Svette began cursing them and hurling racist
epithets. LaMar ordered his cell opened, then LaMar and Curry entered and beat Svette over the
head with a baseball bat and shovel. LaMar started to leave, but noticing that Svette’s legs
moved, returned to beat him again. LaMar and his men then left. But Svette was still alive.
Shortly after, a Muslim representative ordered inmate Eric Girdy to make sure all of the death
Nos. 11-3131/3153 LaMar v. Houk Page 12
squad’s victims were actually dead. He “struck Svette across the head twice more with a
baseball bat.” LaMar, 767 N.E.2d at 180–81, ¶¶ 10–11. Still Svette did not die, continuing to
live even after another inmate, on orders from a Muslim, “dragged Svette’s body to a ramp near
a prison recreation area.” Id. Svette finally died “after yet another inmate, Freddie Frakes, beat
him yet again with a baseball bat.” Id.
That same day, on order of the Muslims, there was at least one other killing (see, e.g.,
J.A. vol. 5 at 2402–04) and one attempted killing (id. vol. 6 at 2721–22, 2753–63, 2766–67), but
LaMar had nothing to do with them. (See also J.A. vol. 3 at 1074 (“Muslim and non-Muslim
inmates participated in numerous killings, assaults, and kidnappings during the [entire course of
the] riot”).)
In his attempt to undermine the State’s theory of events, LaMar cites the interviews of
Willie Kastner, William Turner, Tyronne Golphin, David Hackett, Daniel Davidson, Gerald
Kelly, Michael Jones, Daniel Belcher, Reuben Brazzile, Michael Trocadero, Samuel Batson, and
James Edinbaugh. Even if these interviews had been disclosed to the defense, there is not a
reasonable probability that the result of the proceeding would have been different.
First, Willie Kastner told officers that, about an hour before Vitale’s body was carried out
and placed at the bottom of the ramp, he and Vitale had been sitting between L-3 and L-4 when
inmate Dewitt Campbell stopped, grabbed Vitale by his shirtfront, and said, “Come with me[,]
bitch[;] we have plans for you.” Campbell then took Vitale to L-6. On the way, Campbell was
joined by two other black men who were masked. (J.A. vol. 10 at 4926, 4935–36, 4939, 4942-
44.) LaMar argues this indicates that it was these men who kidnapped Vitale and (LaMar
implies) murdered him.
But Kastner also said that, after taking Vitale into L-6, Campbell “came right back out.”
(J.A. vol. 10 at 4939.) No mention is made of Campbell’s being out of breath or blood-spattered,
as might be expected after a brutal beating. LaMar’s theory of Campbell as the murderer is
much too weak to undermine the three eyewitnesses—all of them actually in L-6—who
described seeing LaMar and his gang kill Vitale. (See J.A. vol. 3 at 1078; id. vol. 5 at 2369–72,
2377, 2380, 2390–91, 2400, 2402, 2446, 2456–58, 2461–62, 2477, 2484–85, 2511–13, 2518,
2595–98; id. vol. 6 at 2644, 2649–50, 2660–64, 2839–47.)
Nos. 11-3131/3153 LaMar v. Houk Page 13
Nor does adding the two masked men to the equation change this result. One could
speculate that, after Campbell left them, they killed Vitale. But there is no evidence of this.
There is also no evidence of who they were. If under those masks were two members of
LaMar’s gang, this would vary the sequence of events slightly, but would not change the
ultimate result: that, as three witnesses testified, LaMar and his gang killed Vitale. Then again,
the masked men may not have been part of the death squad. That does not help LaMar either, for
it is actually more consistent with the State’s case. A natural reading of Kastner is that he is not
describing an alternative version of events. He is describing a small part of the original seizure
of suspected snitches: the means by which the Muslims rounded up suspected snitches and
placed them in those cells where, later, LaMar found them. (See LaMar, 767 N.E.2d at 179, ¶ 2;
id. at 195, ¶ 79; see also J.A. vol. 5 at 2369 (witness describing events in L-6: “They had brought
some people they considered as hostage snitches in, and they was locked on the bottom range”),
2602 (witness testifying that Depina, Vitale, and Staiano were from a whole different block, so—
witness surmised—they must have been brought to L-6 by the Muslims).)
Second, varying his theories, LaMar cites the statement of William Turner for a motive
for someone else to have killed Vitale. Turner says that inmate Stanford “Muscles” Harris had
been romantically involved with Vitale, and after they broke up, Harris had threatened that,
sooner or later, he was going to get him. (J.A. vol. 2 at 649, 752–53.) But motive is not the
same as action. Turner admits that he did not see Harris get Vitale. (J.A. vol. 2 at 752–53.) This
evidence does not even mildly undermine the testimony of three witnesses describing the action
they claim to have seen performed right before their eyes: LaMar and his men getting Vitale.
Third, a version of Vitale’s death different from the State’s is offered by Tyronne
Golphin. He says he saw an inmate named Edward Julious and five or six others beating Vitale,
Julious beating him in the head with a mop. (J.A. vol. 10 at 4926, 4976–77.) The State’s case
had not named Julious as part of the death squad. Moreover, Golphin described the attack as
beginning in L-6, but finishing in the hallway, outside L-6, where they had chased Vitale when
he tried to run. (J.A. vol. 10 at 4976–77.) The State’s theory had been that the attack began in
Vitale’s cell and spilled outside it (when LaMar and Curry dragged him out), but had not left L-
6.
Nos. 11-3131/3153 LaMar v. Houk Page 14
The differences between Golphin’s and the State’s versions of events are not significant.
Golphin does not name the five or six others, so LaMar could have been one of them. And the
death squad was masked—either all of them (J.A. vol. 5 at 2372, 2377, 2464; id. vol. 6 at 2829,
2832, 2859) or some (id. vol. 5 at 2583; id. vol. 6 at 2642–44, 2725). Either way, this would
explain Golphin’s mistakenly naming Julious or the State’s witnesses mistakenly not naming
him. Moreover, the jury already knew that even the State’s witnesses’ sometimes disagreed
about how many were in the death squad and who exactly was in it. (Compare J.A. vol. 5 at
2381–82, 2385, 2391, 2437–38, 2455–57, 2477–78, 2484–85 (Anthony Walker: naming Young
and Postell as members) with id. vol. 6 at 2825–28, 2832, 2835–36, 2839–43, 2849, 2853, 2855,
2857, 2862, 2872, 2874–75 (Louis Jones: naming all the members, including himself, but not
listing Young and Postell); see also LaMar, 767 N.E.2d at 179, ¶ 5 (giving real names of inmates
Jones knew only by their nicknames).) Neither disagreement about the exact death-squad
membership list nor disagreement about just how far outside Vitale’s cell the attack spilled is
enough to undermine confidence in the main points of the State’s case.
Fourth, LaMar cites the statement of David Hackett, who also named other inmates as
part of the death squad. Hackett indicated that, on that first day, he was going by L-6 when he
saw a group of inmates taking people who had been locked in the cells out of those cells one at a
time, then taking turns stabbing them. He saw one member of the group, Aaron Jefferson, stab a
white inmate. (J.A. vol. 10 at 4947–49, 4951–54.) From other indications in the statement, this
appears to be a description of Vitale’s murder. (See also J.A. vol. 5 at 2390, 2446, 2595 (stating
that Vitale was white).) Hence, this boils down to an allegation that Jefferson—someone not
named in the State’s case—stabbed Vitale. But even the State’s case said he was stabbed by
someone other than LaMar. And for the reasons already explained, it does not undermine the
State’s case against LaMar to allege that inmates other than those named by the State’s theory
were members of the death squad.
Fifth, LaMar pieces together statements made by Hackett and Daniel Davidson to contest
the time of Vitale’s death and the identity of the person delivering the death blow. Hackett
describes inmates, after the L-6 killings, moving the dead from L-6 out to the yard. (See J.A.
vol. 10 at 4947–49.) In describing the dragging out of Vitale, Hackett says, “They thought he
Nos. 11-3131/3153 LaMar v. Houk Page 15
was dead.” (J.A. vol. 10 at 4949.) Hackett does not expand on this, but from the phrasing,
LaMar infers that Hackett is saying the inmates were mistaken and that Vitale was not yet dead.
LaMar’s theory requires an inference. Two pages later, Hackett also said, “Everybody
that they assumed was dead, they put ‘em on a blanket and drug ‘em down the ramp as you go
out the doorway.” (J.A. vol. 10 at 4951.) Hackett clearly is implying that the inmates may have
sometimes been mistaken about who was and was not already dead—and may even be implying
he knew for a fact the inmates were mistaken in one or more instances—but is not necessarily
implying they were mistaken in Vitale’s specific case. Hackett, seeking accurate summary, may
simply have been indicating that he did not know whether the inmates were correct in classifying
Vitale among the already dead.
Even assuming LaMar is correct in his interpretation of Hackett’s statement, this
establishes at most a difference of opinion. Hackett thought Vitale still alive; other inmates
thought him dead. It should be pointed out that there was another person who also thought Vitale
already dead: fellow provider of alleged Brady material Willie Kastner. (See J.A. vol. 10 at
4937, 4941.) At any rate, it is not enough to raise doubt about time of death. LaMar must raise
doubt about cause of death: that, contrary to the State’s case, it was not LaMar and his death
squad, aiding and abetting each other, who killed Vitale, but rather someone else, unassociated
with them, who delivered the death blow later on.
To provide that next link, LaMar relies on Davidson’s statement. Davidson says that, on
that first day, four to five hours after the riot started, he saw an inmate lying on a ramp and
moving around as though he was in pain. Standing over him, beating him in the head with a
baseball bat four to five times, was Freddy Frakes (see J.A. vol. 2 at 756–57, 759–61; see also id.
at 641, 648–49)—the same Freddie Frakes who finished Svette off with a baseball bat. (See
LaMar, 767 N.E.2d at 181, ¶ 11.) Davidson did not know the victim, but he was white, medium
built, in his late 20s, had dark brown hair and a mustache. (J.A. vol. 2 at 756–58.) Frakes then
walked to the other side of the ramp and began beating Depina, who was lying there. When
Davidson asked Frakes what he was doing, “[h]e said he was making sure that the snitches were
dead.” (J.A. vol. 2 at 760; see also id. at 641, 648–49.)
Nos. 11-3131/3153 LaMar v. Houk Page 16
LaMar argues that the description of the unnamed first victim does not fit the elderly
Svette, but “generally fits” Vitale. Tying this with Hackett’s evidence, LaMar then argues that
this shows Vitale died not when the State’s theory said he did, but later, and “potentially” shows
that he was killed not by LaMar and his death squad, but by Frakes.
This is extremely weak. Davidson did not say there were only two bodies on that ramp.
He said there was “a bunch of them”—“[a]t least a dozen.” (J.A. vol. 2 at 759.) That one of that
dozen or more “generally” fit Vitale’s description does not mean it was Vitale. (See also
R.E. 32, App., State’s Exs. 26 A–B, D, G–H (photos of Vitale alive and dead: no mustache); J.A.
vol. 7 at 3248–49, 3253, 3426–28 (photos admitted).) Even assuming, per LaMar’s inference
from Hackett’s implication, that Vitale did not die in L-6 after being beaten and stabbed by the
death squad, but lingered to die on the ramp, it does not follow that he was the first inmate
Frakes killed or that Vitale was still alive, when Frakes showed up, to even be killed. There is no
substantial likelihood that use of the Hackett-Davidson evidence would have brought about a
different result.
Next, LaMar offers another statement by Hackett. When Hackett was going by L-6 on
that first day and saw a group of inmates taking turns stabbing other inmates, he first saw, as
already described, Aaron Jefferson stab a white inmate. But then Hackett saw a fat or heavyset
black inmate wearing a scarf. This inmate was going to be killed, but pleaded for his life and
was recruited into killing someone else. The heavyset black inmate then stabbed a white inmate.
(J.A. vol. 10 at 4947–49, 4951–54.) Finally, Hackett said that an inmate called “Peanut” told
him that inmates called “Zeus” and “Frog” had participated in some murders, but Hackett did not
know which ones. (J.A. vol. 10 at 4959–61.)
This is not Brady material. The second murder described appears to be Taylor’s killing
of Staiano. (See J.A. vol. 6 at 2695 (stating Taylor was not tall, but large, strong), 2853 (stating
Taylor was black); R.E. 32, App., State’s Exs. 22A–G (photos: indicating Staiano was white);
J.A. vol. 7 at 3248, 3252, 3431–32 (photos admitted).) To the extent this indicates that Taylor
was coerced into killing, it supports the State’s case. Of course, Hackett has him stabbing
Staiano, whereas the State had Taylor beating Staiano to death and the stabbing done by other
death-squad members when they joined in at the end. That does not get LaMar very far. Taylor
Nos. 11-3131/3153 LaMar v. Houk Page 17
admitted performing the beating. (J.A. vol. 5 at 2518–23, 2607–08, 2614–15; id. vol. 6 at 2695–
96.) And it is not disputed that Staiano died from it. (See J.A. vol. 7 at 3347 (coroner: “[T]here
was a massive fracture of the skull so great that the brain could be removed from the skull
without any significant additional dissection on our part”), 3351 (coroner: Staiano “died from the
head injuries which are secondary to blunt trauma”).) Hackett’s evidence does nothing to
undermine confidence in the State’s case for the Staiano killing. The allegations regarding Zeus
and Frog are too vague to undermine anything because the killings by LaMar’s death squad were
not the only killings.
Next, LaMar cites another statement by Davidson. As already alluded to, four to five
hours after the riot started, Davidson saw Freddy Frakes “making sure that the snitches were
dead” by beating them with a baseball bat. Davidson did not know the first victim Frakes beat.
But Davidson was sure he knew who the second one was—Depina. He was lying on the ramp,
still moving, when Frakes walked over to him and beat him in the head with the baseball bat
about “three good times.” (J.A. vol. 2 at 760–61; see also id. at 641, 648–49.)
LaMar cites this as evidence that Depina was killed not by LaMar and his death squad,
but by Frakes. In other words, Depina’s murder somewhat paralleled Svette’s: when LaMar and
the death squad left, the victim was still alive, only to be finished off later by Frakes—or, in
Svette’s case, by Girdy and then Frakes. See LaMar, 767 N.E.2d at 193, ¶ 69. But the jurors
still found LaMar guilty of killing Svette. And on direct appeal the Ohio Supreme Court upheld
this finding against a sufficiency challenge. Id. at 192–93, ¶¶ 63–69. The court thought the jury
“well within its province” to infer that LaMar had struck one of the fatal blows. Id. at 193, ¶ 68.
Nor was that conclusion changed by the fact that Girdy and Frakes “finished Svette off.” The
court held that the evidence supported “an inference that LaMar’s actions bore a causal
connection to Svette’s death.” Id. at 193, ¶ 69. “An offender who has inflicted injuries capable
of causing death cannot escape culpability for homicide simply because intervening assailants
have inflicted injuries that also contributed to the victim’s death.” Id.
The same reasoning applies here. Depina died from acute head injuries (J.A. vol. 7 at
3383)—two of them (id. at 3405). The jurors were instructed on aiding and abetting (J.A. vol. 8
at 4053–54), therefore if either LaMar or another member of the death squad struck one of the
Nos. 11-3131/3153 LaMar v. Houk Page 18
fatal blows with specific intent to cause death that is enough. See Bradshaw v. Stumpf, 545 U.S.
175, 184 (2005). LaMar hit Depina in the head with a baseball bat. Other death-squad members
hit him there too. (Compare J.A. vol. 5 at 2385, 2401–02 with id. at 2386, 2442–43, 2445.)
Confronted by the Death-Squad/Girdy/Frakes sequence, the jurors still found beyond a
reasonable doubt that LaMar killed Svette. It is not reasonably probable that the one-step-
simpler Death-Squad/Frakes sequence would affect their making a comparable finding here. It is
not substantially likely that use of the Davidson statement would have changed the outcome of
this case.
Sixth, LaMar cites the statement of Gerald Kelly regarding Ellis Walker. Under the
State’s theory, Walker was the second man beaten by the death squad and the last before the
murders began. Kelly said he was next to Walker in the hallway in front, between L-5 and L-6,
when inmate Kennedy opened the L-6 doorway and motioned for Walker to come. Kennedy had
a baseball bat on his shoulder. Walker went in L-6, and the door was shut. (J.A. vol. 10 at 4980;
see also id. at 4981, 4983.) LaMar calls this exculpatory, but it appears to be another instance of
suspected snitches being rounded up and placed in L-6 cells. This is consistent with the State’s
theory.
While in that same hallway, about an hour after the riot started, Kelly witnessed another
incident. He saw Staiano standing a few people away when two armed members of the Aryan
Brotherhood came by, pointed out Staiano, and took him away. Kelly was going into L-3 at the
time, so he did not see where they took Staiano, but Kelly says he knew Staiano was in trouble.
Kelly speculated it was a “revenged thing” for something that had happened to a fellow Aryan
Brother a few months earlier. (See J.A. vol. 10 at 4981–84.)
Calling this a “revenge kidnapping,” LaMar argues that Kelly’s statement shows both
motive and opportunity for people other than the death squad to have killed Staiano. Considered
in context, this incident was likely another instance of the rounding up of suspected snitches.
True, this time it was done by the Aryan Brotherhood. But the Aryans and Muslims had worked
out a temporary alliance. A witness specifically testified that the Aryans were warned of the
planned riot ahead of time “because it would be a unified effort, and it was a protest by
everybody that lived within L block.” (See J.A. vol. 6 at 2717; see also id. at 2765.) It would be
Nos. 11-3131/3153 LaMar v. Houk Page 19
consistent with such an alliance for the Aryans to round up a suspected snitch and turn him over
to the Muslims for placement in one of those L-6 cells. Indeed the Muslims had turned someone
over to the Aryan Brotherhood. (See J.A. vol. 6 at 2791–92.)
Seventh, LaMar cites the statement of Michael Jones that he was an eyewitness to the
murder of Svette by Frakes on the L-corridor ramp. That is consistent with the State’s case.
Eighth, LaMar cites the statement of Daniel Belcher. Belcher said that inmate John
Powers dropped a weight on Svette’s head. (J.A. vol. 10 at 4735; see also id. vol. 1 at 264–65;
id. vol. 10 at 4919.) But the State’s own witness testified that Svette had been beaten up by
someone else before LaMar even got there—beaten up in the face. (J.A. vol. 5 at 2482.)
Belcher’s statement is consistent with this.
LaMar implies that Belcher’s statement would have undermined the State’s case that
LaMar caused Svette’s death, but it does not. The jurors heard testimony that, before LaMar
arrived, Svette had been beaten, including in the face, and was bleeding, yet even after that, he
could still stand (with the aid of his walker) and speak: he cursed the death squad as it passed.
(See J.A. vol. 5 at 2393–94, 2453–54; see also id. vol. 6 at 2848–49.) They heard testimony that
LaMar beat Svette in the head, once or twice with a baseball bat according to one witness, (J.A.
vol. 5 at 2394–95), and quite a few times with a shovel according to another witness, (id. vol. 6
at 2849–50) and then, after starting to walk away but returning, hit him in the face four or
six times, bringing the weapon down directly into Svette’s face. (J.A. vol. 6 at 2850–52.) There
was more than one fatal injury. The one across the face in itself would have killed. But the
injuries across the top of the head would have killed independently. (J.A. vol. 7 at 3375–76
(coroner’s testimony).) It is not substantially likely that use of Belcher’s statement would have
changed the result of this case.
Ninth, LaMar cites the statement of Reuben Brazzile, which provides LaMar with a
different allegation about Svette’s injuries. Brazzile said that inmate Sterling “Death Row”
Barnes struck Svette in the head three times with a mop ringer. (J.A. vol. 10 at 4766, 4773.)
LaMar suggests that this implicates Barnes in the death squad, when the State’s case listed him
neither as a member nor as one of the attackers of Svette.
Nos. 11-3131/3153 LaMar v. Houk Page 20
But Brazzile was not describing the death-squad attack. He was describing a follow-up.
While in L-1 (not L-6), he heard someone say, “Well, these guys that are on the edge of death,
why don’t we give them death blows[?”] (J.A. vol. 10 at 4773 (emphasis added).) Brazzile
continues, “At that time[,] it was decided evidently that Svette would receive a death blow
because he was still like hanging on for life and that’s when Barnes, Death Row, began to hit
him in the head with the mop wringer.” (J.A. vol. 10 at 4773.) In Brazzile’s account, the L-6
attacks have already occurred. Svette’s body was then taken to L-1, where Barnes began striking
Svette with the mop wringer and Brazzile’s cellmate (either Leroy Elmore or inmate Flannigan)
began striking him with a big, thick stick. According to Brazzile, they killed Svette right there in
L-1. Then came the order from the Muslim leadership to bring out all the bodies. (See J.A.
vol. 10 at 4766, 4768, 4772–74, 4778.)
This does not undermine the State’s case against LaMar. It merely provides an
alternative to the Frakes-finished-Svette-off version or a supplement. Under this scenario,
Barnes and Brazzile’s cellmate just administered another in the series of beatings Svette
received, with the Barnes-Cellmate beating following LaMar-Curry-Girdy but preceding Frakes,
Svette not finally dying until Frakes got to him. This does not undermine the State’s case that
LaMar or his aider and abettor Curry struck at least one of the death blows.
Brazzile also said that inmate Anthony Byrd was a member of the death squad and was
involved in Svette’s murder. (J.A. vol. 10 at 4767.) LaMar describes this as an allegation that
Byrd was “an attacker of Svette,” but the summary of Brazzile’s statement says “involved in”
(J.A. vol. 10 at 4767 (caps removed)), which could refer simply to membership in the death
squad, rather than hands-on involvement in killing Svette. Disagreement about the exact death-
squad membership list does not undermine the State’s case against LaMar. Whether the masked
man helping LaMar kill Svette was Curry or Byrd, or whether Curry and Byrd helped LaMar do
the job, that still leaves LaMar as a killer of Svette.
Brazzile identified Thomas Taylor as a member of “the security squad” (J.A. vol. 10 at
4769)—the same Taylor who killed Staiano and testified against LaMar. (See J.A. vol. 5 at
2494, 2496–615; id. vol. 6 at 2622–99.) By “security squad,” Brazzile meant participants in the
riot who were assigned the duty of enforcing the rules of whatever inmate group controlled that
Nos. 11-3131/3153 LaMar v. Houk Page 21
unit: inmate enforcement officers. (See J.A. vol. 10 at 4774, 4777; R.E. 165 at 284–85.) If
Taylor was part of the security squad for the Muslim-controlled section, then he would have been
a Muslim enforcement officer.
LaMar argues that this contradicts the State’s theory that Taylor was not a riot participant
and that he killed Staiano only under coercion from LaMar and his death squad. The absence of
this evidence was not prejudicial. Two of LaMar’s alleged Brady witnesses, Hackett and
Trocadero—whom, presumably, the State could have called if needed—described Taylor’s being
coerced into killing. And three witnesses at trial described his being coerced: Taylor himself
(J.A. vol. 5 at 2518–23, 2530, 2601; id. vol. 6 at 2631, 2633, 2672–74, 2694–96), Anthony
Walker (id. vol. 5 at 2388–90) and Louis Jones (id. vol. 3 at 1078; id. vol. 6 at 2853–54). And
all three described Taylor’s being locked back in the cell once the Staiano killing was done.
(J.A. vol. 3 at 1079; id. vol. 5 at 2390, 2451–52, 2523; id. vol. 6 at 2857–58.) It is not
reasonably probable the Brazzile allegation would have undermined all that.
LaMar cites Brazzile for one more allegation, which concerned the State’s witness
Anthony Walker. Although LaMar indicates that it appears in both the interviewing officer’s
one-sentence summary of Brazzile’s statement (J.A. vol. 10 at 4771) and in the seven-page
transcription of the interview (id. at 4772–78), the allegation actually appears only in the one-
sentence summary: “Inmate Brazzile said that inmate Walker was a member of the security
squad and that he was the security officer in L-6 main block.” (J.A. vol. 10 at 4771 (caps
removed).)
This does not undermine Walker’s testimony. Although Walker indicated he was not a
participant in the riot (see J.A. vol. 5 at 2362–69, 2371), he did testify that, after the Muslims had
taken over L-6, a Muslim representative told him to watch the back door and, if Walker heard
anything, to let the Muslim know. (See J.A. vol. 5 at 2369–72, 2434–37.) Walker testified that
he replied, “‘All right’ ” (J.A. vol. 5 at 2435), and did as he was told (id. at 2369–72, 2437).
That appears to be what Brazzile was alluding to. And the jurors heard the allegation that this
sequence of events constituted “working security on the back door,” since defense counsel made
that exact suggestion to Walker on cross-examination. He replied, “You could say that,” but
pointed out that he was acting under the coercion of implied threat. (J.A. vol. 5 at 2435.) LaMar
Nos. 11-3131/3153 LaMar v. Houk Page 22
has not shown it reasonably probable that use of Brazzile’s statement would have changed the
outcome.
Tenth, LaMar cites the statement of Michael Trocadero, whose life was spared because
the Muslim leadership wanted neither him nor the other inmates in his cell killed. Out of all the
statements he made to investigating officers, the only one both not revealed before trial and cited
by LaMar concerns inmate Timothy Williams. And LaMar gets it wrong. He indicates that
Trocadero named Williams as one of Staiano’s assailants or as somehow being part of that
killing (id. at 65–66). But, what Trocadero actually said was that Williams “was in L-6 and
should have seen the group that murdered and assaulted” Staiano. (J.A. vol. 10 at 4781 (caps
removed.))
Trocadero confirms the State’s theory on several points. He has Taylor being coerced
into killing Staiano (J.A. vol. 10 at 4796–98, 4800) and, the killing done, going back to his cell,
where the door is closed upon him (id. at 4801). And Trocadero lists LaMar as a death-squad
member. (See J.A. vol. 10 at 4796–98, 4800, 4802, 4890, 4921.) True, Trocadero did not see
LaMar kill and—other than seeing him pull Ellis Walker out of his cell—could not say what part
LaMar played. (J.A. vol. 10 at 4796–97, 4802.) But this places LaMar there. (See Third Br. 49
(LaMar conceding, in a different context, that “[a] statement noting LaMar at the scene would
seem to be consistent with the state’s theory”).) Moreover, Trocadero has him not only there,
but possibly giving the order to kill Staiano. Trocadero was confused about who exactly gave
Taylor that order, but based on size, listed LaMar as one of three men, all hooded, who it might
have been. (J.A. vol. 10 at 4797–98, 4800; see also id. at 4800 (“[I]t threw me off with the
hoods, I couldn’t positively say, you know what I mean . . .”).) All of this undermines any
attempt by LaMar to argue, as he attempts with Brazzile’s statement, that Taylor was not coerced
or, as he attempts with the statements of Samuel Batson and James Edinbaugh, that LaMar was
not even there. And Trocadero’s statement undermines any attempt by LaMar to link the latter
argument with his alibi defense at trial that he was out in the yard when the murders occurred.
See LaMar, 767 N.E.2d at 182, ¶ 18. Trocadero’s statement does not merely fail to help LaMar.
It actively hurts him.
Nos. 11-3131/3153 LaMar v. Houk Page 23
Eleventh, LaMar cites the statement of Samuel Batson. Batson named the following as
assaulters or killers of Depina: an inmate calling himself “Charles Outlaw” and inmates
Abraham Douglas, Rasheem Matthews, and James Robinson. (J.A. vol. 10 at 4736, 4742, 4744,
4746–47, 4920.) Batson named the same four men as assaulters or killers of Staiano. (J.A.
vol. 10 at 4737–41, 4743, 4745.) LaMar argues this absence of this information prejudiced him.
Batson’s statements, read in context, do not indicate that any of the four men was the sole
killer of either Depina or Staiano. And the State’s theory listed Matthews as a death-squad
member. The statements undermine nothing, let alone clear LaMar of either killing Depina or
ordering that Staiano be killed. LaMar stresses that the statements nowhere mention him. Yes,
but then neither do they mention Louis Jones, who testified to his own involvement. LaMar
contends they contradict the State’s theory that Taylor killed Staiano at LaMar’s order. But
Batson does not deal with that issue. He just lists Douglas, Matthews, Outlaw, and Robinson as
Staiano’s assaulters or killers. Identity of the death-squad members aside, that is consistent with
the State’s theory that, after Taylor had finished his part, other death-squad members joined in.
LaMar stresses that, according to the State’s theory, Taylor alone killed Staiano. Although the
theory did have Taylor alone delivering the death blows, it also had the other death-squad
members, when they joined in, stabbing Staiano repeatedly.
Although the State, unlike Batson, did not list Douglas, Outlaw, and Robinson as death-
squad members, that does not undermine the case against LaMar for reasons already explained.
The information given by Trocadero provides a useful point of comparison. He too named
Outlaw (see J.A. vol. 10 at 4780, 4795–97, 4802, 4890, 4921) and Robinson (see id. at 4787,
4795, 4798, 4802, 4890, 4921) as death-squad members, yet also named LaMar (see id. at 4796–
98, 4800, 4802, 4890, 4921). Thus, as Trocadero’s statement illustrates, including others does
not exclude LaMar.
Twelfth and last, LaMar cites the statement of James Edinbaugh. LaMar cites his
Highway Patrol interview (see J.A. vol. 10 at 5023–83) for two variations on already dealt-with
arguments. One, Edinbaugh names as members of the death squad inmates that the State’s
theory did not name. (First Br. at 66 (but mistakenly calling Edinbaugh “Simmons”).) Two,
although mentioning those others, Edinbaugh nowhere in his 61-page interview mentions LaMar.
Nos. 11-3131/3153 LaMar v. Houk Page 24
Again, disagreement about the exact death-squad membership list does not aid LaMar.
Nor does the failure to mention him exclude him. Edinbaugh says there were seven to eight
people in the death squad (J.A. vol. 10 at 5024, 5038–39), but names only five. (Compare J.A.
vol. 10 at 5024–25 with id. at 5035–38.) That leaves two to three slots open. LaMar could fill
any one—and still leave one for Louis Jones, whom Edinbaugh also does not name. (Compare
J.A. vol. 10 at 5024–25 with id. at 5035–38.) It is not substantially likely that use of
Edinbaugh’s evidence would have changed the outcome.
Next, LaMar argues that he should have been permitted to amend his federal habeas
petition to include two more subclaims to his Brady claim. In these subclaims, LaMar argues
that prosecutors withheld information concerning the special treatment given to the prosecution’s
inmate witnesses and those witnesses’ mental health records. Even assuming LaMar should be
permitted to amend his petition to include these subclaims, the subclaims are meritless.
LaMar’s special treatment subclaim is based on a deposition of Anthony Walker taken
during federal habeas proceedings. In his deposition, Walker indicated that he and other inmate
witnesses were transferred before trial to Oakwood Correctional Facility, which ordinarily
housed inmates with mental-health problems. (R.E. 98 at 20, 31–34, PgID# 1570.) While at
Oakwood, he and the others received extra visitation, food, and cigarettes. (R.E. 98 at 31–32,
PgID# 1570.) They were assigned night-shift cleaning duties and after they finished cleaning,
their cells were left unlocked for the night. (R.E. 98 at 32, PgID# 1571.) Walker stated that he
was not told he would receive this treatment beforehand. (R.E. 98 at 33, PgID# 1572.) LaMar
argues that, had this evidence been disclosed to him before trial, he could have used it to
impeach the prosecution’s inmate witnesses.
This is weak impeachment evidence. LaMar has no evidence that the witnesses struck a
deal to receive this special treatment or that the witnesses even knew what conditions would be
like at Oakwood when they first told investigators their accounts. For the special treatment to
provide a motive to lie, the witnesses must have known about the special treatment beforehand.
Furthermore, the special treatment described by Walker is overshadowed by the risk of harm
from being a witness for the prosecution. In retaliation for agreeing to testify, prosecution
witness Stacey Gordon had his face burnt with a hot liquid. (J.A. vol. 6 at 2719–21.) According
Nos. 11-3131/3153 LaMar v. Houk Page 25
to Reuben Brazzile, provider of alleged Brady material, one of the rioters’ first acts was to break
into the unit-office files to learn which inmates were snitches. (J.A. vol. 10 at 4773.)
Considering this and the other alleged Brady material cumulatively, there is not a reasonable
probability of a different result at trial.
LaMar’s second additional subclaim is that prosecutors failed to provide the defense with
mental-health records of inmate witnesses before trial, but this evidence was either not
suppressed by the prosecution or not reasonably probable to change the outcome of the trial.
First, LaMar argues that inmate witness Michael Childers believed that a transmitter had been
placed in his head by the FBI and that this could have been used to impeach Childers at trial.
This evidence was not suppressed; it was turned over to the defense by the prosecution and even
used to impeach Childers at trial. (R.E. 165 at 329–31; R.E. 181 at 31–32; J.A. vol. 6 at 3064–
67.) Second, LaMar argues that Ricky Rutheford suffered from auditory and visual
hallucinations. Had this evidence been disclosed, there is not a reasonable probability of a
different outcome. Rutheford testified to the Weaver killing, (J.A. vol. 3 at 1081–83), but so did
Childers, (J.A. vol. 6 at 3038–45, 3047–53, 3055–57, 3068–70, 3073–77, 3086–87), and John
Malveaux, (J.A. vol. 7 at 3100–17, 3120–26, 3128–33, 3151–55). Childers and Malveaux
testified that LaMar gave the orders to kill Weaver and Childers also testified that LaMar shoved
plastic in Weaver’s mouth. (J.A. vol. 7 at 3041–42, 3049–52, 3070, 3073, 3075–77, 3121). In
light of Childers’s and Malveaux’s testimony, it is unlikely that impeaching Rutheford based on
his mental health records would have had much effect. Adding this evidence to LaMar’s Brady
claim, and considering that evidence together, there is still no reasonable probability of a
different outcome at trial.
IV.
Next, LaMar argues that the trial court denied him his constitutional right to a fair trial by
refusing to sever the Weaver count from the remaining charges. Discussing this only as a state-
law claim, the Ohio Supreme Court on direct appeal held that the trial court had not abused its
discretion in denying LaMar’s severance motion. LaMar, 767 N.E.2d at 189–90. The district
court credited LaMar with raising a constitutional claim, (see J.A. vol. 1 at 283), but concluded
that the claim was defaulted because it had not been not fairly presented in state court (id. at
Nos. 11-3131/3153 LaMar v. Houk Page 26
281–84; see also id. at 285) and in the alternative was meritless. (J.A. vol. 1 at 284–86.) Even
assuming that LaMar’s claim was fairly presented in the state courts, the claim fails because
LaMar has not shown that the trial court’s denial of his severance motion violated due process.
The burden of showing that the denial of the severance motion rose to the level of a due
process violation falls on LaMar. Although the Ohio Supreme Court discussed only the state-
law aspect of LaMar’s claim, when a state court rejects a federal claim without expressly
addressing it, it is rebuttably presumed that the claim was adjudicated on the merits. See
Johnson v. Williams, 133 S. Ct. 1088, 1091, 1094, 1096 (2013). LaMar has not attempted to
rebut this presumption, see First Br. at 93 (using AEDPA-deference language), therefore
AEDPA deference applies. Misjoinder is unconstitutional only if it results in prejudice so great
as to deny a defendant his due process right to a fair trial. See United States v. Lane, 474 U.S.
438, 446 n.8 (1986). The burden falls on LeMar to demonstrate prejudice. Quicksall v.
Michigan, 339 U.S. 660, 665 (1950).
LaMar has not carried that burden. LaMar argues that the purported misjoinder permitted
the State to introduce during its case for the four L-6 killings a “plethora of prejudicial evidence”
that contaminated the jury’s finding on the Weaver killing. The “introduction of evidence of
other crimes that would otherwise be inadmissible” can be a source of potential prejudice and the
basis for a misjoinder due process violation. Davis v. Coyle, 475 F.3d 761, 777 (6th Cir. 2007).
However, as the Ohio Supreme Court ruled, LaMar, 767 N.E.2d at 194, and as LaMar concedes,
(see First Br. at 94), even if the Weaver killing had been tried separately, “some” evidence
concerning the L-6 killings would have been admissible to prove the course-of-conduct
specification on the Weaver count. LaMar has not identified which evidence admitted at the
joint trial would have been inadmissible in a hypothetical separate trial on the Weaver count.
Nor has he explained how that inadmissible evidence was so unfairly prejudicial as to violate due
process. Accordingly, his claim fails.
V.
Next, LaMar contends that the State presented insufficient evidence of the kidnapping
aggravators and, therefore, that three of his death sentences must be reversed: those for the
Depina, Vitale, and Svette killings. LaMar does not challenge the felony-murder counts, even
Nos. 11-3131/3153 LaMar v. Houk Page 27
though those counts were based on the same alleged acts of kidnapping. (See First Br. at 96–
106; Third Br. at 63–73; J.A. vol. 1 at 129, 132–35.) On direct appeal, the Ohio Supreme Court
found the evidence of the aggravators sufficient. LaMar, 767 N.E.2d at 192, 194–95, ¶¶ 63–64,
72–80; see also id. at 210, ¶ 185. The district court concluded that the evidence was insufficient
and that the Ohio Supreme Court’s holding to the contrary was objectively unreasonable (J.A.
vol. 1 at 319–21, 329–35, 337), but that the error was harmless (id. at 335–38). Even assuming
that there was insufficient evidence of the kidnapping aggravators, any error was harmless.
The harmless-error rule applies. Ohio is a weighing state. Wilson v. Mitchell, 498 F.3d
491, 505 (6th Cir. 2007). If the jury considered an invalid aggravator when deciding that
aggravation outweighed mitigation, but a valid aggravator remains, the death sentence must be
reversed unless either (a) the error was harmless or (b) aggravation and mitigation are reweighed
without the invalid aggravator. See Brown v. Sanders, 546 U.S. 212, 217 (2006); Stringer v.
Black, 503 U.S. 222, 232 (1992). Only a state court may conduct this reweighing, but either a
state or federal court may conduct the harmless-error analysis. See Wilson, 498 F.3d at 505–08.
Because the Ohio Supreme Court upheld LaMar’s kidnapping aggravators, the court did not
remove those aggravators from the scales when it independently reweighed aggravation and
mitigation. See LaMar, 767 N.E.2d at 210, ¶ 185. But even assuming the kidnapping
aggravators were invalid, valid aggravators remain, and a federal court may determine whether
consideration of the invalid kidnapping aggravators was harmless.
LaMar argues that the harmless-error rule does not apply on the theory that the United
States Supreme Court’s decision in Brown v. Sanders requires, except in circumstances not
relevant here, reversal of a death sentence whenever the jury has considered an invalid
aggravator. This court’s caselaw is to the contrary. Even in a post-Sanders world, “we continue
to hold that federal courts may conduct harmless-error review of invalid aggravating factors even
where the state court has not done so.” Wilson, 498 F.3d at 508 (specifically considering
Sanders’s effect, see also id. at 504–07). LaMar argues that Wilson is contrary to Sanders, but
Wilson is controlling precedent and this court is bound by it. See Salmi v. Sec’y of Health &
Human Servs., 774 F.2d 685, 689 (6th Cir. 1985).
Nos. 11-3131/3153 LaMar v. Houk Page 28
Any error in considering the kidnapping aggravators was harmless, because the jury
would have rendered the same verdicts even without consideration of the kidnapping
aggravators. In a harmless-error analysis, the question is whether the error had “substantial and
injurious effect or influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S.
619, 623, 637–38 (1993) (internal quotation marks omitted); see also Fry v. Pliler, 551 U.S. 112,
121–22 (2007). The focus is on the verdict rendered by this jury, not a hypothetical reasonable
jury. And the question is whether the verdict “actually rendered in this trial was surely
unattributable to the error,” not whether, “in a trial that occurred without the error,” the same
verdict “would surely have been rendered.” See Sullivan, 508 U.S. at 279–80; see also Wilson,
498 F.3d at 503–504. The three valid aggravators, particularly the mass-murder aggravators,
weighed so heavily in favor of death sentences that the death sentences were unattributable to the
inclusion of the kidnapping aggravators.
For each person killed on the first day—Depina, Vitale, Staiano, and Svette—LaMar was
convicted of two counts of aggravated murder, with the same four aggravators attached to each
count: murder in prison, prior murder, mass murder, and kidnapping. For the Weaver killing,
there was only one aggravated-murder count and three aggravators attached: murder in prison,
prior murder, and mass murder. The Weaver aggravated-murder count did not have the
kidnapping aggravator attached. LaMar received one death sentence each for the Depina, Vitale,
Svette, and Weaver killings, but a 30-to-life sentence for the Staiano killing.
The decisive factor in the death sentences was LaMar’s hands-on involvement. In the
Depina-Vitale-Svette killings, LaMar may not have acted alone, but he did beat the victims:
repeatedly, brutally, personally. See LaMar, 767 N.E.2d at 180–81, ¶¶ 7-8, 10; id. at 212, ¶ 194.
In the Weaver killing, LaMar “aided [the person who ultimately succeeded in strangling Weaver]
by stuffing toilet paper and pieces of plastic down Weaver’s throat in an effort to silence him.”
(See id. at 181, ¶ 15; see also J.A. vol. 6 at 2979–80, 2982–83, 2986–87, 3041–42, 3049–50.)
LaMar’s shoving objects down Weaver’s throat not only silenced Weaver and prevented him
from alerting guards, it also contributed to Weaver’s death by asphyxiation. (J.A. vol. 7 at 3391-
92 (coroner’s testimony).) The jury returned death sentences for each of these four killings. In
the Staiano killing, LaMar gave the orders, but struck no blows himself, id. at 180, ¶ 9. The jury
Nos. 11-3131/3153 LaMar v. Houk Page 29
returned a life sentence. When LaMar had hands-on involvement in the killing, the jurors
returned a death sentence. When he did not, they did not.
The jury legitimately considered LaMar’s hands-on involvement as part of the mass-
murder aggravator. That aggravator encompasses the “course of conduct involving the
purposeful killing of” multiple persons. Ohio Rev. Code Ann. § 2929.04(A)(5) (West 1997)
(amended 1997, 1998, 2002). Under Ohio law, the nature and circumstances of a crime can
provide a reason why the statutory aggravators outweigh mitigation. See State v. Davis,
880 N.E.2d 31, 77, ¶ 326 (Ohio 2008) (prosecutor may legitimately refer to nature and
circumstances to explain why aggravation outweighs mitigation); State v. Stumpf, 512 N.E.2d
598 (Ohio 1987) (trial court or three-judge panel may rely upon nature and circumstances as
reasons supporting finding that aggravation outweighed mitigation).
The kidnapping aggravators had no effect. LaMar received a death sentence when the
kidnapping aggravator was absent for the Weaver killing, and received a life sentence when the
kidnapping aggravator was present for the Staiano killing. Any variation in the nature and
circumstances of the kidnapping also had no effect. In what the prosecution characterized as
kidnapping, LaMar dragged Depina and Vitale from their cells before their brutal beatings. See
LaMar, 767 N.E.2d at 180–81, ¶¶ 7–8, 10. LaMar received death sentences for the Depina and
Vitale killings. LaMar did not drag Staiano from his cell, but LaMar still received a death
sentence for Staiano’s killing. Accordingly, the presence of the kidnapping aggravators did not
have substantial and injurious effect or influence in determining the jury’s verdict. If there was
error, it was harmless.
VI.
Next, LaMar argues that the prosecutor committed misconduct before and throughout
trial. On direct appeal, the Ohio Supreme Court examined each instance of misconduct and
denied the claim, either on the merits or under plain-error review. LaMar, 767 N.E.2d at 186–
87, ¶¶ 37–38; id. at 197–98, ¶¶ 91–92; id. at 203–09, ¶¶ 121–83. Although the prosecutor
sometimes engaged in “questionable conduct,” LaMar, 767 N.E.2d at 209, the prosecutor’s
conduct did not violate the Constitution before trial, caused no constitutionally cognizable harm
Nos. 11-3131/3153 LaMar v. Houk Page 30
in the guilt phase, and to the extent any existed in the penalty phase, was cured by appellate
reweighing.
The prosecutor’s alleged pretrial misconduct in withholding discovery did not deny
LaMar due process because there is no general due process right to discovery in a criminal case.
Prosecutorial misconduct not invoking a specific provision of the Bill of Rights is reviewed
under the general standard for due-process violations: whether the misconduct was so egregious
as to deny the defendant a fundamentally fair trial. See Donnelly v. DeChristoforo, 416 U.S.
637, 643–45 (1974). LaMar argues that the prosecutor improperly withheld discovery by
ignoring the trial court’s order to turn over transcripts of inmate-witness statements and refusing
the trial court’s orders to fully answer defense interrogatories submitted in support of LaMar’s
motion to dismiss on selective-prosecution grounds. Although the violations alleged are of state
law, LaMar contends they were so egregious that they effectively denied him due process. The
thrust of LaMar’s claim concerns the amount of pretrial discovery given to him. The Due
Process Clause “has little to say regarding the amount of discovery which the parties must be
afforded,” and “[t]here is no general constitutional right to discovery in a criminal case.”
Weatherford v. Bursey, 429 U.S. 545, 559 (1977) (internal quotation marks omitted).
The prosecutor’s misconduct during the guilt phase of the trial did not have substantial
and injurious effect or influence in determining the jury’s verdict. In deciding prosecutorial
misconduct claims, the court considers the effect of any misconduct on the trial as a whole.
Darden v. Wainwright, 477 U.S. 168, 182 (1986). A relevant consideration is the strength of the
evidence against the defendant. See id. The case for LaMar’s guilt was overwhelming. Five
witnesses testified to seeing LaMar with the death squad. Five indicated he was its leader. Two
described his attacking Depina and Svette. (J.A. vol. 3 at 1078; id. vol. 5 at 2383–85, 2394–95,
2399, 2401–02, 2440–45, 2455, 2477, 2517–18, 2586, 2591, 2593–94; id. vol. 6 at 2652–53,
2849–52.) Three described LaMar’s attacking Vitale. And three testified to LaMar’s coercing
Taylor into killing Staiano. As for the Weaver killing, three witnesses testified to it. Two said
LaMar gave the orders to kill. Even the third identified LaMar as without doubt the leader of
those in the cell who wanted Weaver dead. (See J.A. vol. 3 at 1082–83.) And that is the state of
the evidence without taking into account LaMar’s own witness, William “Geno” Washington,
Nos. 11-3131/3153 LaMar v. Houk Page 31
who testified that LaMar was not involved in the Weaver killing, but was impeached with a prior
statement in which Washington told an investigator that LaMar was one of the people
responsible for the murder. (See LaMar, 767 N.E.2d at 182–83, ¶ 20; id. at 195, ¶ 81; J.A. vol. 8
at 3649–50 (Washington admitting making the statement).)
The prosecutor’s alleged misconduct during the penalty phase did not violate the
Constitution and was cured by appellate reweighing. LaMar argues that in penalty-phase
closing, the prosecutor made improper arguments, including arguing the specifics of the prior
murder and trying to make a nonstatutory aggravator out of the fact that LaMar had already been
sentenced to life imprisonment, yet he still killed again. The consideration of nonstatutory
aggravators, even if contrary to state law, does not violate the Constitution. Smith v. Mitchell,
348 F.3d 177, 210 (6th Cir. 2003); see also Tuilaepa v. California, 512 U.S. 967, 979–80 (1994);
Zant v. Stephens, 462 U.S. 862, 878–79 (1983). And even were that not the case, all the alleged
prosecutorial misconduct during penalty phase was cured when the Ohio Supreme Court
independently reweighed aggravation and mitigation. See Lundgren v. Mitchell, 440 F.3d 754,
783 (6th Cir. 2006) (citing Clemons v. Mississippi, 494 U.S. 738 (1990)). Accordingly, LaMar’s
prosecutorial misconduct claim fails.
For the foregoing reasons, the judgment of the district court is affirmed.