Rastafari, Gamba M. v. Anderson, Rondle

In the
United States Court of Appeals
For the Seventh Circuit
No. 00-4063
Gamba M. Rastafari, a/k/a
Gregory Rouster,
Petitioner-Appellant,
v.
Rondle Anderson,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Indiana, South Bend Division.
No. 99 C 608--Allen Sharp, Judge.
Argued May 18, 2001--Decided January 22, 2002
Before Bauer, Easterbrook, and Kanne,
Circuit Judges.
Kanne, Circuit Judge. Petitioner, Gamba
Rastafari, a/k/a Gregory Rouster
("Rouster"), was convicted of two counts
of felony murder in Indiana state court
after a joint jury trial with two co-
defendants. At the jury’s recommendation,
the trial judge sentenced Rouster to
death. After exhausting his state
remedies, Rouster filed a petition for a
writ of habeas corpus in the Northern
District of Indiana. Rouster now appeals
the denial of his habeas petition,
alleging the following: 1) that his trial
counsel was ineffective for failing to
move for severance prior to trial; 2)
that his trial counsel was ineffective
for failing to move for severance prior
to the penalty phase; and 3) that his
trial counsel was ineffective for failing
to present expert testimony on self-
defense. For the following reasons, we
affirm.
I. Facts
A. Background
John and Henrietta Rease, an elderly
couple who lived in Gary, Indiana, cared
for, fed, and housed foster children at
their home at 2430 Jennings Street in
exchange for $160 per month per child.
One such foster child was Rouster, who
lived with the Reases from November 1985
until his eighteenth birthday on February
7, 1986. On August 12, 1986, the Reases
were robbed and shot to death in their
home. Police arrested Rouster, Darnell
Williams, Theresa Newsome, and Edwin
Taylor and charged them each by
information with two counts of felony
murder. Ind. Code sec. 35-42-1-1(2)./1
Further, the State sought the death
penalty against Rouster and Williams
pursuant to Ind. Code sec. 35-50-2-9,
Indiana’s death penalty statute.
At the Initial Hearing, public defender
Robert Lewis was appointed to represent
Rouster, and Rouster entered a plea of
not guilty on both counts. On January 7,
1987, Noah Holcomb was appointed as
additional counsel to aid Lewis in
representing Rouster. On February 3,
1987, Williams filed a motion for
severance, asking the court to "sever him
from the trial of the remainder of the
defendants herein . . . [because] his
interests, rights and his defenses hereto
will be prejudiced if he is tried with
the remainder of the defendants herein."
Williams’ motion to sever was denied, and
Rouster never filed a motion to sever.
B. The Crimes
Rouster’s joint trial with Williams and
Newsome/2 began on February 10, 1987, at
which time Rouster’s counsel waived
opening statement. Neither Rouster nor
Williams testified, but the following
evidence was adduced at trial through
direct and cross-examination of the
State’s witnesses and through the
admission of 70 trial exhibits consisting
of physical evidence and of photographs.
Jack Baumer, the child welfare
caseworker who placed Rouster with the
Reases, testified that he saw Rouster at
a drug store in Gary, Indiana on August
12, 1986. Rouster asked Baumer if the
Reases received a clothing allowance on
his behalf during the time Rouster lived
with them. Baumer responded that the
Reases received a clothing allowance of
about five to six dollars per month, and
Rouster told him that he had never
received any clothing from the Reases.
According to Baumer, Rouster ended the
conversation by saying that he was going
to get his money from the Reases.
Derrick Bryant, a seventeen-year-old
foster child who lived with the Reases,
testified that on August 12, 1986, he was
in the living room of the Rease house.
Through a window in the living room,
Bryant saw Rouster, Williams, Newsome,
and Kim Toney ("Four")/3 walking towards
the Rease house at around 9:00 p.m.
Bryant testified that while walking
toward the Rease house, Rouster
wasdrinking from a 40-ounce bottle of
Private Label malt liquor. The Four
entered the Rease house and sat down in
the living room, and Rouster and
Henrietta Rease went into Rouster’s
former bedroom to talk./4 Bryant
testified that while he was in the living
room, he heard Rouster state that Baumer
had told him that he was supposed to get
some money from the Reases. Bryant also
testified that Henrietta Rease responded
that she did not know anything about that
money. Bryant stated that Rouster and
Henrietta Rease returned to the living
room, at which time Bryant then left the
living room and went to a room at the
back of the house.
From the back room, Bryant heard
Henrietta Rease ask the Four to leave the
house. Bryant testified that he then
heard Williams say, "I won’t let her,
she’s doing nothing but gypping you out
of the money." Bryant then heard a
gunshot and someone running through the
backyard. He testified that the gunshot
sounded like it was fired outside of the
Rease house. Bryant then went upstairs to
hide in the attic. While in the attic, he
heard a conversation take place outside
between Williams, Rouster, and Edwin Tay
lor, another foster child living with the
Reases. According to Bryant, Taylor said,
"you all have guns, you all go take the
money." Bryant stated that Rouster asked
Taylor where the Reases kept their money,
to which Taylor responded, "it’s on the
dresser." Bryant then testified that he
heard Rouster say, "let’s go rob them."
Bryant ran downstairs to warn the
Reases, but when he saw Rouster coming
into the Rease house through the front
door, he hid behind a stairway. He then
heard Rouster tell Henrietta Rease, "I
know how to act now and I don’t need us
to go through this because I got a gun
and you got a gun." Bryant heard Williams
tell Henrietta Rease to get down on the
floor and heard Rouster demand to be told
where the money was. Next, Bryant heard
Rouster say, "bring both of them back
here," and Bryant heard a noise that
sounded like someone falling into a wall.
Because he was hiding behind the stairs,
Bryant could not determine where in the
house this activity took place. Bryant
testified that Williams then said, "it’s
your time." Bryant then heard Rouster
say, "waste them." Bryant stated that
Henrietta Rease asked Rouster, "Greg, why
are you doing this?" to which Rouster
responded, "my name ain’t Greg." Bryant
then heard a gunshot, followed by someone
entering the Rease house through a side-
door in the kitchen. The next noise that
Bryant heard sounded like money falling
on the kitchen floor. Bryant heard more
gunshots coming from inside of the house,
at which time he ran out of the back door
of the house. Bryant testified that he
then flagged down a police car and told
the police to come to the Rease house.
Finally, Bryant testified that he knew
that the Reases kept at least one pellet
gun in the house, and that Taylor told
him that Henrietta Rease kept a gun by
her bed.
Fourteen-year-old Eugene Powell
testified that at around 8:30 or 9:00
p.m. on August 12, 1986, he was standing
outside of his house at 2423 Jennings
Street (across the street and one house
over from the Rease House) with friends
Jamal Pope, Demond Ligon, Jimmy Gray, and
others ("Group"). Powell saw Rouster,
Newsome, a young man, and a young woman
walking towards the Rease House. Powell
had known Rouster and Newsome from the
time that Rouster lived with the Reases,
but did not know the other young man.
Powell testified that he saw Rouster and
Newsome enter the Rease house, while the
other two stayed outside. The Group
walked to the corner of Jennings Street
and 25th Avenue, and then turned around
and began walking down Jennings Street
towards the Rease house. The Group
continued walking, and when they were
across the street from the house on 2462
Jennings Street, Powell heard a noise
that sounded like two firecrackers coming
from inside the Rease house. When the
Group reached Gray’s house (directly
across the street from the Rease house),
Powell saw the young man he did not know
looking for something on the ground in
front of the Rease house, using a
cigarette lighter for illumination.
Powell then saw Taylor running down
Jennings Street, and the Group moved to
Powell’s front yard. Powell then
testified that he saw Rouster exit the
Rease house and enter the Reases’ garage
with the young man. At that point, Powell
and Ligon began to walk up the Reases’
driveway, but when they heard Rouster say
"who’s up in here, we’ll shoot," they
turned around and went back across the
street to Powell’s house.
The Group then began to walk down
Jennings Street away from the Rease house
again, and when they were two houses down
from Powell’s, Powell heard three more
firecracker sounds. Powell then saw the
shadow of a person in the living room of
the Rease house. After hearing two more
firecracker sounds, Powell, Pope, and
Ligon went to Ligon’s house to call
Powell’s father. A few minutes later,
Powell and Pope started walking towards
Powell’s house. Powell saw Rouster and
Newsome in the Reases’ driveway and heard
Rouster ask Newsome if she still loved
him. Powell and Pope then started running
towards Powell’s father’s car, which was
parked in Powell’s driveway. Powell
testified that while running, he heard
Rouster tell Newsome, "I killed the
motherfuckers." Powell and Pope then got
into Powell’s father’s car, and Powell
saw a police car pull up to where Rouster
and Newsome were talking, and saw Rouster
pointing down the street. The police car
pulled away and stopped at a different
house down the block. As Powell, Pope,
and Powell’s father drove away, Powell
heard another firecracker sound while
Rouster and Newsome were still in the
Reases’ driveway.
Pope, Ligon, and Gray all testified and
corroborated Powell’s testimony. Ligon
added that Rouster was wearing a white
shirt and a black hat that night, and
Gray added that he saw Rouster drinking
from a 40-ounce bottle of Private Label
malt liquor when Rouster was first
walking up Jennings Street towards the
Rease house.
Lelia Gray, Jimmy’s mother, testified
that after hearing a lot of noise coming
from the Rease house, she looked out of
the window of her house, which was
directly across the street from the Rease
house, and saw two young men wrestling in
the Reases’ front yard. One of the young
men wore a white shirt and Ms. Gray heard
one of them shout that he "wanted his
share." Ms. Gray then saw a young woman
wearing all white clothing ask one of the
young men for bus fare. From her front
yard, Ms. Gray saw the two young men
enter the Rease house and saw that the
young man in the white shirt had a gun in
his back pocket. After the young men
entered the Rease house, she heard
gunfire. In addition, she saw two flashes
inside of the Rease house, which she
described as "light flashing from [the]
firing of a gun"--one in the living room
and one in the front bedroom. She then
saw the young man in the white shirt
talking to the young woman in white on
the Reases’ driveway, telling her that he
"killed the motherfuckers." Ms. Gray also
heard the young woman ask the young man,
"why did you do that?" Ms. Gray then saw
a police car pull in front of the Rease
house and saw the young man in the white
shirt tell the police that the
disturbance was down the street. Ms. Gray
then testified that she saw the young man
in the white shirt and the young woman in
white walk behind the outside of the
Rease house, and that she then heard one
more gunshot.
Gloria Williams, the Reases’ next-door
neighbor, testified that on the night of
August 12, 1986, she heard screams and a
noise that sounded "like a hammer hitting
aluminum siding" coming from inside the
Rease house. She heard someone inside of
the Rease house yell, "Get it. You know
where it is. Go get it." Also, Ms.
Williams testified that she could see
inside of the Reases’ bedroom from her
second-floor window, and that she saw
objects being tossed around the room.
However, someone then closed the shade in
the Reases’ bedroom. After hearing more
noises that sounded like gunshots from
the Rease house, Ms. Williams called the
police. She then noticed a young man and
young woman arguing in the Reases’ front
yard. The young man told the young woman,
"you don’t love me," and she replied,
"yes I do. You know I love you." Ms.
Williams testified that the voice of the
young man who was arguing with the young
woman in the front yard was the same
voice that she heard yelling in the Rease
house.
C. The Arrest
Officer Rita Dorsey of the Gary Police
Department testified that she and her
partner had been dispatched to the
Reases’ neighborhood because of reports
of gunfire in the area. As she drove down
Jennings Street, Officer Dorsey saw two
black youths--one male and one female--
talking and asked them where the
disturbance was. The young woman
approached the police car and told
Officer Dorsey that there was no
disturbance at that location and that
maybe there was a disturbance at a
different house down the street. After
questioning one of the Reases’ neighbors,
Officer Dorsey heard a gunshot. She and
her partner returned to their patrol car
and drove towards the direction of the
gunshot. The officers were flagged down
by Bryant, who took them to the Rease
house. Officer Dorsey and her partner
entered the Rease house and found the
Reases’ bodies on the floor of a bedroom.
Gary bus driver Donna Thomas testified
that at 8:05 p.m. on August 12, 1986, two
young women and two young men got onto
her bus at 21st Avenue and Broadway. She
identified Rouster as one of the young
men and Newsome as one of the young
women, and testified that Rouster was
wearing a white shirt and a black hat.
Thomas testified that Rouster had a
bottle wrapped in a paper bag with him.
She also stated that Rouster smelled
strongly of "intoxicants." Thomas
testified that at around 8:15 p.m., the
Four departed the bus at 21st Avenue and
Hendricks. Thomas then stated that
shortly after 9:20 p.m., Rouster and New
some ran across 21st Avenue and then
boarded her bus at 21st Avenue and Chase.
They paid their bus fare with change and
asked Thomas if they "could ride around."
Thomas testified that as the bus crossed
25th Avenue and Chase, she saw an Indiana
State Police car and noticed that Rouster
and Newsome crouched down in their seats.
Rouster and Newsome exited the bus at
21st Avenue and Broadway, where another
bus whose route went down Broadway to
41st Avenue was idling.
Indiana State Trooper Rodney Means
testified that while in his patrol car on
the evening of August 12, 1986, he saw a
young man and a young woman, who he later
identified as Rouster and Newsome,
running towards a bus on 21st Avenue. He
then saw them board the bus at 21st
Avenue and Broadway. Rouster and Newsome
matched the description of two of the
youths involved in the shootings at the
Rease house, and therefore, Officer Means
followed the bus. When Rouster and
Newsome got off the bus at 41st Avenue
and Broadway, Officer Means got out of
his patrol car, approached them, and
questioned them. Rouster and Newsome told
him inconsistent stories about where they
boarded the bus. Newsome also told
Officer Means not to listen to Rouster
because he was high and had been
drinking. Officer Means testified that
Rouster appeared intoxicated and that his
eyes were bloodshot. Next, Officer Means
testified that he asked Rouster what the
bulge in his shirt pocket was, to which
he answered "bullets" or "ammunition."
Rouster then handed about twenty bullets
to Officer Means. Officer Means then
noticed several red spots that looked
like blood stains on the back of
Rouster’s white shirt.
Indiana State Trooper Al Brown testified
that on August 12, 1986, he went to 41st
Avenue and Broadway to assist Officer
Means. Officer Brown arrived there
immediately after Rouster had handed the
bullets to Officer Means. Officer Brown
examined the bullets and determined that
they were .30 caliber bullets. Officer
Brown then testified that he read Rouster
and Newsome their Miranda rights and
arrested them both. He also noticed "red
splotches" on the back of Rouster’s white
shirt. Officer Brown then transported
Newsome to the Gary Police Department,
and Officer Means transported Rouster to
the Gary Police Department. At the Police
Department, Officer Brown searched
Newsome’s handbag and discovered that it
contained, among other things, several
loose coins.
Lake County Police Officer Timothy
Lukasik testified that at approximately
9:45 p.m. on August 12, 1986, he began to
search the area around the Rease house in
order to ascertain possible suspects. In
front of 2530 Chase Street, which was
about three blocks away from the Rease
house, Officer Lukasik saw a young man
that matched Williams’s description.
After apprehending the suspect, Officer
Lukasik found a black pouch on him and
took him to the Gary Police Department.
Officer Lukansik testified that the black
pouch he found on the suspect contained a
gold watch,/5 $232.00, a billfold, a
J.C. Penny credit card, and .30 caliber
ammunition. In court, Officer Lukansik
identified the suspect as Williams.
D. The Investigation
Lake County crime technician Ronald Lach
testified that on August 12, 1986, he
searched the Rease house for evidence.
Lach found a live .30 caliber cartridge
case on the floor outside of the door to
the Reases’ bedroom. Lach then opened the
door to the bedroom and saw John Rease
lying on the floor, with his knees bent.
Lach then saw Henrietta Rease lying
wedged between the bed and dresser with
her head resting on an open drawer of the
nightstand. Lach testified that the room
was "ransacked" and that the two bodies
were covered with clothes from the
dresser drawers.
Lach found live .30 caliber ammunition
in the doorway going into the bedroom and
two live .30 caliber rounds next to John
Rease’s leg. Lach also found two fired
.32 caliber cartridge cases and two or
three live rounds of .22 caliber bullets
lying on the floor of the bedroom. He
also found two boxes of ammunition on the
bed’s headboard: Remington .32 caliber
Smith & Wesson live rounds and Western X
.25 caliber automatic live rounds. He
found two other boxes of ammunition on
the nightstand: Winchester Super Western
.38 caliber live rounds and Remington .32
caliber Smith & Wesson live rounds. Next,
Lach testified that he found a wad of
money behind the corner of the dresser
and coins lying on the floor. He also saw
several apparent bullet holes in the
Rease house: one in the bedroom wall, one
on the nightstand, and one on the side of
the refrigerator. Additionally, Lach
found a .22 caliber weapon with three
fired rounds in the cylinder and a B.B.
or pellet pistol in the house.
Further, Lach testified that in the
early morning hours of August 13, 1986,
he went to the Gary City jail to observe
Rouster. Lach noticed red drops on the
back of Rouster’s white vest and t-shirt.
Lach also found several red drops on
Rouster’s shorts, white tube socks, and
gym shoes.
Kimberly Epperson, a forensic serologist
employed by the Indiana State Police
Department, testified that the blood
found on Rouster’s vest, socks, and gym
shoes was consistent with the blood type
of John Rease, but not with that of
Henrietta Rease, Newsome, Taylor,
Williams, or Rouster. Epperson also
testified that the blood found on
Rouster’s t-shirt and shorts was
consistent with the blood type of either
Henrietta or John Rease or with that of
Rouster, but not consistent with the
blood type of Newsome, Taylor, or
Williams.
Crime technician Lach finally testified
that he returned to the Rease house on
August 19, 1986, at which time he found
two more rounds of .22 caliber live
ammunition and three fired .32 caliber
cartridge cases in the bedroom. He then
searched the weeds behind the house and
found a .32 caliber revolver with one
fired .32 caliber cartridge case in the
cylinder.
Sarvind Kakodar, a pathologist for the
Lake County Coroner’s Office, testified
that he performed the Reases’ autopsies.
Dr. Kakodar testified that there was a
gunshot entrance wound above John Rease’s
collarbone and that he recovered the
bullet that caused this wound from John
Rease’s back. He also testified that this
wound damaged John Rease’s lung, and that
John Rease’s cause of death was "due to a
laceration of the right lung." Dr.
Kakodar also testified that Henrietta
Rease had three bullet entrance wounds:
one that entered the skull cavity through
the right eye, one at the "lateral end of
the left eyelobe," and one in the
abdominal area. Dr. Kakodar testified
that Henrietta Rease’s cause of death was
"due to laceration of the brain due to
two gunshot wounds of the head."
Jay Gauthier, a firearms examiner for
the Lake County Crime Lab, testified that
the bullet recovered from John Rease’s
back was fired by the .32 caliber gun
that Lach found behind the Rease house.
Further, Gauthier testified that the same
gun fired the bullet that was recovered
from Henrietta Rease’s abdomen. Gauthier
then testified that one of the bullets
recovered from Henrietta Rease’s head may
have come from the .22 caliber gun that
Lach found in the Rease house./6
E. Defendants’ Case
Defendants’ case consisted of calling
four witnesses. Theresa Newsome testified
that on the evening of August 12, 1986,
the Four were at her home, when Rouster
asked if they wanted to accompany him to
the Rease house. Newsome claimed that
Rouster said he "wanted to be with some
friends." The Four then left Newsome’s
house and boarded a bus at 41st Avenue
and Johnson Street. At Broadway and 24th
Avenue, Rouster and Williams got off the
bus, bought one 40-ounce bottle of malt
liquor each, and re-boarded the bus
several minutes later with the beer
bottles wrapped in paper bags. Newsome
testified that Rouster continued to drink
his beer the entire bus ride. When the
Four got off the bus, they walked down
Jennings Street, entered the Rease house,
and sat down in the living room with Hen
rietta Rease, John Rease, and Bryant.
Newsome testified that Rouster and
Henrietta Rease then went into a back
room to talk, where they "were talking
loud." After several minutes, Newsome,
Toney, and maybe Williams (Newsome
testified that she could not remember)
left the house and walked a few feet down
Jennings Street.
Newsome then heard two gunshots that
sounded as if they were fired from
outside the front of the Rease house.
Although she was not wearing her glasses,
at the time she heard the first gunshot,
she also saw Rouster standing with his
arms up in the air in the front hall of
the Rease house. One of the neighborhood
children told Newsome that Rouster had a
gun, and Toney told that child to call
the police. Newsome and Toney then went
back into the Rease house and saw
Rouster, Williams, and the Reases talking
in the living room. Newsome asked
Henrietta Rease how she was doing, and
she replied that she was doing fine.
After telling their boyfriends that they
were ready to go, Newsome and Toney left
the Rease house, where Rouster and
Williams remained.
Newsome and Toney walked to the bus stop
on 24th Avenue, at which point Newsome
realized she had no money for bus fare.
Newsome then started to return to the
Rease house to ask Rouster for some
money. As she approached the Rease house,
she saw Rouster in the front yard of the
house. She asked him for bus fare, and he
told her to go home. Newsome then
testified that Rouster told her that "he
killed the motherfuckers" and asked her,
"do you love me?" Newsome did not see
Williams and did not hear any gunshots.
Further, Newsome stated that she did not
see Rouster with a gun that entire night.
Newsome then testified that a police car
pulled up to the Rease house, and that
she and Rouster approached the car and
that Rouster told the police officers
that the disturbance was down the street.
Newsome also testified that Rouster gave
her some money from a purse that he had
taken from the Rease house. After
receiving the money, Newsome stated that
she and Rouster boarded a bus. Finally,
Newsome testified that she and Rouster
were apprehended by the police when they
got off the bus at 41st Avenue and
Broadway.
Williams called two witnesses. First, he
called an employee of the Public
Defender’s Office to authenticate some
photographs taken of the Rease house.
Then, he called his and Newsome’s mother,
Shirley Williams, who testified that
Williams had possessed the black pouch
and the items therein before August 12,
1986. Rouster called one witness, Officer
Means, who testified that while at the
Gary Police Department, he searched
Rouster and found some money on him. He
testified that the bills and coins that
he found on Rouster totaled approximately
twenty dollars.
For the most part, Rouster’s trial
strategy consisted of cross-examining the
State’s witnesses, seeking to establish
the following facts: 1) that Rouster was
outside of the Rease house when at least
one gunshot was fired; 2) that Rouster
was intoxicated on the night of August
12, 1986; 3) that the Reases kept guns in
their house; 4) that no one except Ms.
Gray saw Rouster with a gun that night;
and 5) in any event, no one saw who shot
the Reases. Similarly, Williams’ strategy
was to establish the following facts
through cross-examining the State’s
witnesses: 1) that he was outside of the
Rease house when some of the shots were
fired; 2) that no one saw him with a gun
that night; and 3) that no one saw who
shot the Reases. Further, both Rouster
and Williams attempted to impeach the
State’s witnesses in order to attack
their credibility.
F. Closing Arguments
During closing arguments, Rouster and
Williams began to accuse each other for
the first time. Before closing arguments,
the trial judge informed the parties that
each defendant had forty-five minutes to
address the jury. Newsome was to argue
first, then Williams, and then Rouster.
However, because Rouster was to go last,
the trial judge informed the parties that
if he perceived that Rouster had "turned
on" his co-defendants, he would allow
each co-defendant an additional fifteen
minutes to rebut Rouster’s contentions.
He would signal his intention to allow
this additional time by placing his
eyeglasses on the bench during Rouster’s
argument. If that happened, then Rouster
would also be given the opportunity to
extend his argument by fifteen minutes,
so that each co-defendant would be
allotted an equal amount of time (one
hour) for final argument.
Following the State’s and Newsome’s
summations, Williams’ counsel told the
jury that Rouster "wanted to settle the
score" with the Reases and that Rouster
had gone "berserk." He also argued that
the State had not proved that Williams
was guilty of felony murder "beyond
areasonable doubt." Rouster’s counsel
countered in his closing argument that
"the real maniac was Darnell Williams."
He argued that because Williams was
twenty years-old and Rouster only
eighteen on August 12, 1986, Williams was
the ringleader and driving force behind
the murders. He also argued that the
police only found drops of blood on the
back of Rouster’s vest and shirt, and
that this was evidence that he was facing
away from the Reases when someone else
shot them. In response, the trial judge
placed his glasses on the bench, and each
defendant received an additional fifteen
minutes of argument. In his additional
time, Williams’ counsel argued that the
police also found blood on Rouster’s
shorts, socks and shoes, so that it is
unclear whether he was facing away from
the Reases when they were shot. Newsome’s
counsel also argued in his additional
time that Newsome received the money that
the police found on her "from Greg
[Rouster], after he had told her [the
Reases] were dead."
G. Sentencing
The jury found Rouster and Williams
guilty of two counts of felony murder and
acquitted Newsome on both counts. At the
joint penalty phase ("Phase II"), which
began the next day in front of the same
jury, the State sought the death penalty
pursuant to Ind. Code sec. 35-50-2-9. That
statute provided that the State could
seek the death penalty against a
defendant convicted of murder if the
State proved beyond a reasonable doubt
one of the following aggravating factors:
that the "defendant committed murder by
intentionally killing the victim while
committing or attempting to commit"
robbery or that the "defendant has been
convicted of another murder." Id. at
sec.sec. 35-50-2-9(b)(1) and (7). In this
case, the State alleged that at least one
of the following aggravating factors was
present: 1) that Rouster and Williams
intentionally killed John Rease while
committing or attempting to commit a
robbery, 2) that Rouster and Williams
intentionally killed Henrietta Rease
while committing or attempting to commit
a robbery, or 3) that Rouster and
Williams had been convicted of the murder
of John Rease and Henrietta Rease.
The Indiana death penalty statute also
provided that the defendant could present
evidence pertaining to one of the
following mitigating circumstances: 1)
the defendant had no significant history
of prior criminal conduct; 2) the
defendant was under the influence of
extreme mental or emotional disturbance;
3) the victim was a participant in, or
consented to, the defendant’s conduct; 4)
the defendant was an accomplice in a
murder committed by another person, and
the defendant’s participation was
relatively minor; 5) the defendant acted
under the substantial domination of
another person; 6) the defendant’s
capacity to appreciate the criminality of
his conduct or to conform his conduct to
the requirements of law was substantially
impaired as a result of mental disease or
defect or of intoxication; 7) any other
circumstances appropriate for
consideration./7 See id. at sec. 35-50-
2-9(c) (1987). The statute provided that
the jury could recommend the death
penalty, see Ind. Code sec. 35-50-2-9(e),
only after it had found that: 1) the
state had proved beyond a reasonable
doubt that at least one of the
aggravating circumstances existed and 2)
any mitigating circumstances that existed
were outweighed by the aggravating
circumstance(s)./8 Id. at sec. 35-50-2-
9(k). The judge would then make the final
determination about the appropriate
sentence after considering the jury’s
recommendation and the standards
elucidated in Ind. Code Section 35-50-2-
9(k). Id. at sec. 35-50-2-9(e).
In Phase II, Rouster once again waived
opening statement. The State then called
Taylor, who testified that after the Four
entered the Rease house, Rouster,
Williams, and Henrietta Rease went into a
back room to talk. Taylor heard Williams
tell Henrietta Rease, "you better get
Greg [Rouster] his fucking money."
Everyone returned to the living room, and
Henrietta Rease asked Taylor to take
Rouster and Williams outside. Taylor then
saw Rouster pull out a gun that was
hidden in his vest, and Taylor ran out of
the house. While next door to the Rease
house, Taylor testified that he saw
Rouster, who was on the sidewalk outside
of the Rease house, fire his gun twice at
the living room window. After Taylor ran
to the back of the Rease house and hid
behind a shed, he heard Williams say,
"Greg [Rouster], somebody in back," and
then Rouster say, "come on out, I’m going
to shoot." After Taylor came out from his
hiding spot, Williams took the gun from
Rouster, pointed it at Taylor, and asked
him where the Reases kept their money.
Taylor answered, at which point Rouster
told Williams to leave Taylor alone.
Taylor then said that Williams dropped
the gun in the yard and started looking
for it, using a lighter for illumination.
Taylor then ran to his friend’s house to
call the police.
Taylor also identified the .22 caliber
gun found at the Rease house as the gun
that Rouster and Williams had brandished
and the .32 caliber gun found behind the
house as the Reases’ gun. In addition,
Taylor testified that both Williams and
Rouster appeared drunk that night.
Finally, he testified that about two or
three weeks prior to August 12, 1986,
Rouster told Taylor over the telephone
that he was going to rob the Reases. In
addition, the State also presented
evidence that in 1982, Rouster had been
adjudicated as a delinquent for two
counts of burglary and that Williams, but
not Rouster, had previously participated
in a robbery similar to the one committed
against the Reases.
Rouster’s evidence during Phase II
consisted of the testimony of his welfare
caseworkers and of his welfare file,
which revealed that Rouster had been
abandoned at birth by his fourteen-year-
old prostitute mother. The evidence also
showed that Rouster had lived in a number
of foster homes and institutional
placements prior to his placement with
the Reases. Further, Rouster was tested
several times as having mild mental
retardation. In an IQ test administered
in 1982, Rouster was found to have an IQ
of 76, although Rouster’s April 1984
welfare report indicated that he was able
to receive passing grades in high school.
During Phase II, Williams presented
testimony that he was employed, had
graduated high school, and had lived with
his mother for most of his life. Further,
friends and family members testified
about Williams’ character, claiming that
he was a kind and responsible young man.
Williams’ counsel gave his closing
argument after the State’s summation. He
argued that Rouster was the triggerman
and that Rouster’s deprived background
was reason to find that Rouster was more
blameworthy than Williams. During
Rouster’s closing argument, his attorneys
addressed Rouster’s unfortunate
upbringing and argued that Rouster had
not intentionally killed the Reases and
was not the triggerman. On February 19,
1987, the jury recommended the death
sentence for both Rouster and Williams.
On March 20, 1987, a joint sentencing
hearing was held, at which Rouster did
not present any witnesses or testify.
Williams, however, presented testimony
from his family members and from his
employer. The judge entered a death
sentence against Rouster and issued
written findings therewith./9 The
judge’s findings indicated that the State
had proved three aggravating factors
under Ind. Code Section 35-50-2-9: 1) that
Rouster intentionally killed John Rease
while committing the crime of robbery; 2)
that Rouster intentionally killed
Henrietta Rease while committing the
crime of robbery; and 3) that Rouster had
previously been convicted of another
murder. He also addressed each potential
mitigating factor and held that none
applied. Specifically, the judge found:
1. As a juvenile the defendant was
adjudicated for two burglaries in 1982
and for violation of probation in 1984.
As an adult he was charged in Lake County
Division I for conversion.
2. The killings were done in a
deliberate fashion. Though there is some
indication that Rouster thought he was
suffering an injustice, this had no basis
in fact. It was pretext to give the
appearance of justification for killing.
3. From the evidence previously referred
to, we conclude the victims acceded to
the robbery to avoid the killings, but
were completely at the defendant’s mercy.
4. Rouster planned the robbery with
Williams. Both were well known to the
Reases. It is reasonable to conclude that
once the robbery plan was carried out the
Reases could not be permitted to identify
either Rouster or Williams. Rouster
additionally was the one announcing that
he had killed them both.
5. Both Rouster and Williams acted as a
team. It was Rouster who said: "Let’s get
them now." He was equal partner and not
under anyone’s domination.
6. Rouster is mentally alert and was
capable of making A’s and B’s in high
school . . . . There is no indication of
mental disease or defect. There was
evidence that Rouster had been drinking
that evening. He was, however, able to
deceive the arresting officer as to his
prior locations that evening and had the
presence of mind to duck down in the bus
when the police car went by.
7. The defendant, Rouster is a nineteen
(19) year-old male, well-informed of
stature, physically strong and mentally
alert. His lack of family support and
traditional human relationships, though a
factor in his antisocial behavior, cannot
excuse that conduct as resulting from a
social disorder or mental disease. The
court also notes that Rouster was
eighteen (18) years of age at the time of
the murders. A young age is always a
mitigating factor, though not enumerated
by statute. A person of tender age makes
impulsive choices, often unwise, that
someone of greater experience and years
would not make. Had this been the first
or second bad decision, his age would
have been a substantial mitigating
factor. But Rouster has consistently made
bad decisions. He has been subjected to
corrective treatment. He has been given
more time to reflect. He has had his
environment changed. He has had the
benefit of supervision at all levels of
his development. It has had no deterrent
effect.
The judge then sentenced Rouster and
Williams to death.
H. Procedural History
After the Indiana Supreme Court rejected
all of Rouster’s claims on direct appeal,
see Rouster v. State, 600 N.E.2d 1342(Ind. 1992), he filed a petition for
post-conviction relief in Lake County
Superior Court on April 28, 1995. In that
petition, Rouster alleged the following:
1) that he was denied effective
assistance of counsel because of his
trial counsel’s failure to move for
severance and present expert testimony on
self-defense; 2) that there were
fundamental errors in the jury
instructions; 3) that false evidence was
submitted to the jury; 4) that the
Indiana sentencing scheme was
unconstitutional; and 5) that execution
by electrocution was a cruel and unusual
mode of punishment.
Magistrate T. Edward Page held a hearing
the week of June 26, 1995 to evaluate
Rouster’s claims, at which time the court
received an affidavit from Dr. Jeffrey
Gwynne, a reconstruction expert. Dr.
Gwynne asserted that it was highly likely
that Rouster was acting in self-defense
at the time that Henrietta Rease was
shot, based on the angle of the bullet
path and the location of the bullet-hole
in her dress. Additionally, he asserted
that the fatal wound to John Rease also
supported the theory that Rouster
wasacting in self-defense. Gloria
Williams, the Reases’ neighbor, testified
in support of Rouster and stated that the
Reases had used inappropriate force in
dealing with their foster children. Jimmy
Gray also testified that he saw the
Reases carry guns in their home and saw a
rifle in their bedroom.
Judge Richard Conroy dismissed Rouster’s
post-conviction petition in its entirety.
Rouster appealed the denial of his
petition for post-conviction relief
directly to the Indiana Supreme Court,
alleging the following: that his trial
counsel was ineffective during the guilt
phase for failing to file a motion to
sever, for failing to engage in certain
discovery, and for failing to present
expert testimony on self-defense; that
trial counsel was ineffective during
Phase II for failing to present
additional mitigation evidence and for
failing to make a new request for
separate sentencing proceedings; that
errors in the Phase II jury instructions
constituted fundamental error and
ineffective assistance of counsel; that
he was denied the right to effective
assistance of counsel because of
systematic defects within the Lake County
Public Defender system; that the
prosecutor knowingly presented false
evidence against him at trial; and that
his post-conviction hearing denied him
due process. The Indiana Supreme Court
unanimously affirmed the decision of the
trial court denying post-conviction
relief. See Rouster v. State, 705 N.E.2d
999 (Ind. 1999).
Rouster then filed a petition for a writ
of habeas corpus in the Northern District
of Indiana on February 4, 2000, alleging
that his trial counsel was ineffective
for failing to move for severance prior
to trial and prior to Phase II, that
trial counsel was ineffective for failing
to present expert testimony on self-
defense, that trial counsel was
ineffective for failing to investigate
all of the potential mitigating evidence
during Phase II, and that several of the
jury instructions contained fundamental
errors. Rouster’s habeas petition was
denied, and this appeal followed. On
appeal, Rouster now raises three issues:
that trial counsel was ineffective for
failing to move for severance prior to
trial, that trial counsel was ineffective
for failing to move for severance prior
to Phase II, and that trial counsel was
ineffective for failing to present expert
testimony on self-defense.
II. Analysis
A. Standard of Review
Rouster filed his habeas petition on
February 4, 2000, which was after the
effective date of the Antiterrorism and
Effective Death Penalty Act of 1996
("AEDPA"), Pub. L. 104-132, 110 Stat.
1214 (1996) (codified at 28 U.S.C. sec.
2254). Therefore, the provisions of AEDPA
govern our review. See, e.g., Lindh v.
Murphey, 521 U.S. 320, 336, 117 S. Ct.
2059, 138 L. Ed. 2d 481 (1997). AEDPA
provides that if a constitutional claim
was adjudicated on the merits by the
state courts, a federal court may only
grant habeas relief based on that claim
if the state court’s decision was
"contrary to" or an "unreasonable
application of" federal law as determined
by the Supreme Court of the United
States./10 28 U.S.C. sec. 2254(d).
The Indiana Supreme Court’s decision in
this case was not "contrary to" federal
law as determined by the Supreme Court of
the United States. In Williams v. Taylor,
529 U.S. 362, 405-06, 120 S. Ct. 1495,
146 L. Ed. 2d 389 (2000), the Supreme
Court stated that a state court’s
decision is "contrary to" established
Supreme Court precedent when 1) the state
court applies a rule that contradicts the
governing law set forth in Supreme Court
cases or 2) the state court confronts a
set of facts that is materially
indistinguishable from those of a
decision of the Supreme Court and
nevertheless arrives at a decision
different from that reached by the
Supreme Court precedent.
In the present case, the Indiana Supreme
Court correctly applied Strickland v.
Washington, 466 U.S. 668, 104 S. Ct.
2052, 80 L. Ed. 2d 674 (1984) as the
controlling precedent for Rouster’s three
ineffective assistance of counsel
claims,/11 see Rouster, 705 N.E.2d at
1003-08, and "Strick-land undoubtedly
qualifies as ’clearly established Federal
law, as determined by the Supreme Court
of the United States,’ within the meaning
of [AEDPA]." Williams, 529 U.S. at 413.
Further, Rouster concedes that the
Supreme Court has never addressed facts
that are materially indistinguishable
from those in this case. Therefore,
because the Indiana Supreme Court’s
decision was not "contrary to"
established federal law, Rouster is not
entitled to habeas relief on this ground.
Nevertheless, we must determine whether
the Indiana Supreme Court’s conclusions
with respect to Rouster’s three
ineffective assistance of counsel claims
resulted from "an unreasonable
application of" Strickland. See Williams,
529 U.S. at 411. In doing so, we must
keep in mind that we may not issue a writ
of habeas corpus "simply because [we]
conclude[ ] . . . that the relevant
state-court decision applied [Strickland]
erroneously or incorrectly. Rather, that
application must also be unreasonable."
Id.B. Strickland
A defendant who claims that his
counsel’s assistance was so defective as
to warrant a reversal must establish two
components: 1) that his counsel’s
performance fell below an objective
standard of reasonableness and 2) that he
was prejudiced by the deficient
performance. See Strickland, 466 U.S. at
687-88. A failure to establish either
prong results in a denial of the
ineffective assistance of counsel claim.
See Hough v. Anderson, 2001 WL 1464699,
at *7 (7th Cir. Nov. 20, 2001). Prejudice
occurs when there is a "reasonable
probability" that but for counsel’s
deficient performance, the result of the
proceeding would have been different.
Strickland, 466 U.S. at 694. A
"reasonable probability is a probability
sufficient to undermine confidence in the
outcome." Id. Because Rouster cannot
establish that he was prejudiced by his
counsel’s allegedly deficient
performance, we need not address whether
his counsel’s performance was objectively
unreasonable.
C. Severance Prior to Trial
Rouster contends that his conviction
should be overturned because his trial
counsel failed to move to sever his trial
from that of his co-defendants. Indiana
law allows for severance when "the
parties’ defenses are mutually
antagonistic and acceptance of one
party’s defense precludes the acquittal
of the other."/12 Lampkins v. State,
682 N.E.2d 1268, 1272 (Ind. 1997).
Rouster relies on events that occurred
during closing arguments to illustrate
the alleged irreconcilable defenses
between his case and Williams’./13 For
example, Williams’ counsel depicted
Rouster as an individual who wanted to
settle the score and who went "berserk."
In response, Rouster’s counsel argued
that Williams was "the real maniac" and
that blood stains on Rouster’s vest and
shirt indicated that Rouster could not
have fired the shots at the Reases.
Rouster argues that this sort of "finger-
pointing" establishes "mutually
antagonistic defenses." Therefore,
Rouster asserts he was prejudiced by
being jointly tried with Williams.
In order to show that he was prejudiced
by his joint trial with Williams, Rouster
must show that had his counsel moved for
severance and had the motion been granted
so that he was tried separately, there
was a "reasonable probability" that he
would have been acquitted. See
Strickland, 466 U.S. at 687. Even if
Indiana law mandated severance in this
case,/14 Rouster would not be able to
establish prejudice because there was not
a "reasonable probability" that he would
have been acquitted if tried separately.
See Strickland, 466 U.S. at 687. In
applying Strickland to Rouster’s claim,
the Indiana Supreme Court stated:
Moreover, there is no reasonable
probability that the results of the guilt
phase of trial would have been different
if a separation had occurred. First, each
co-defendant’s arguments regarding who
pulled the trigger were actually of
little relevance since both were
convicted of felony murder under Ind. Code
sec. 35-42-1-1. All participants in a
robbery or attempted robbery that results
in killing by one robber are deemed
equally guilty of murder, regardless of
which participant actually killed the
victim. Additionally, the same evidence
would have been admitted against Rouster
even if he had been granted a separate
trial. Such evidence includes testimony
that Rouster said, "I killed the
motherfuckers" to his co-defendant Teresa
Newsome shortly after shots were heard
inside the Rease home; Derrick Bryant’s
testimony that he heard Rouster tell
Williams, "Bring them both back here"
before he heard Henrietta Rease say,
"Greg, why are you doing this?" followed
by two shots; plus the physical evidence
of the blood consistent with that of John
Rease found on Rouster’s shoes, socks,
and vest. Considering the amount of
corroborating evidence indicating
Rouster’s role in the crime, Rouster was
not prejudiced by his counsel’s failure
to move for separate trials.
Id. at 1005 (citations omitted) (emphases
added).
We have no problem holding that the
Indiana Supreme Court’s application of
Strickland was reasonable. In Hernandez,
200 F.3d at 999, we held that Strickland
prejudice exists with respect to trial
counsel’s failure to move for severance
only when "there [is] a reasonable
probability that the severance would have
made a difference to the outcome of the
trial." In that case, Hernandez was
convicted for murder based on evidence
that was adduced almost entirely from his
co-defendant’s testimony at trial, which
contradicted Hernandez’s own testimony at
trial. See id. We held that Hernandez was
prejudiced by his trial counsel’s failure
to move for severance because there was a
reasonable probability that had Hernandez
been tried separately, his co-defendant
would not have testified at Hernandez’s
trial. See id. at 999-1000.
In contrast to Hernandez, in the present
case, the only contradictory positions
proffered by the co-defendants occurred
during closing arguments. As Rouster’s
counsel argued to the jury, however,
closing arguments are not evidence. See,
e.g., United States v. Henry, 2 F.3d 792,
795 (7th Cir. 1993). Therefore, had
severance been granted, the evidence that
would have been presented at Rouster’s
trial would have been the same as the
evidence that was, in fact, presented at
his joint trial. Cf. Hernandez, 200 F.3d
at 999. This evidence would include the
testimony of several witnesses who heard
Rouster admit that he "killed the
motherfuckers," the testimony of several
witnesses that saw Rouster in or around
the Rease house on the night of August
12, 1986 and then heard gunshots coming
from the house, and the physical evidence
indicating that Rouster had blood
consistent with John Rease’s blood on his
clothing. Further, we agree with the
Indiana Supreme Court that the
contradictory defenses concerning who was
the triggerman were irrelevant, as both
Rouster and Williams could have been
convicted of felony murder even if the
other had fired all of the gunshots. See
Rogers, 315 N.E.2d at 709-10. Therefore,
because we do not believe that there
would have been a "reasonable
probability" of a different outcome had
Rouster been tried separately, we find
that no prejudice resulted from Rouster’s
counsel’s failure to file a motion for
severance prior to trial. See Strickland,
466 U.S. at 687.
D. Severance Prior to Sentencing
Next, Rouster contends that his sentence
should be reversed because his trial
counsel failed to move for severance
prior to Phase II. Rouster’s argument to
the Indiana Supreme Court with respect to
this issue was the same as his argument
with respect to counsel’s failure to move
for severance prior to trial--that he and
Williams had mutually antagonistic
defenses. Thus, the Indiana Supreme Court
was faced with the novel question of
"[w]hether a defendant may claim
separately that his counsel was deficient
for failing to file a motion for separate
trials in regard to the guilt and penalty
phases of his trial." Rouster, 705 N.E.2d
at 1007. The Indiana Supreme Court
determined that a defendant could do so
only if counsel became aware of a
"previously unknown ground" that required
severance after the trial had started,
and still failed to move for severance.
See id. There was no such ground in this
case, and therefore, the Indiana Supreme
Court held that because the evidence
against him was overwhelming, Rouster was
not prejudiced by "counsel’s omission in
failing to file a motion to separate
trials before sentencing." Id. at 1007-
08.
Now on appeal, Rouster has re-framed his
argument to claim that counsel’s failure
to move for severance prior to Phase II
constituted ineffective assistance of
counsel because it denied him an
individualized sentencing hearing as
required by the Fourteenth Amendment.
See, e.g., Woodson v. North Carolina, 428
U.S. 280, 96 S. Ct. 2978, 49 L. Ed. 2d
944 (1976). Further, even though Rouster
did not mention Woodson nor its progeny
in his brief to the Indiana Supreme
Court, Rouster claims that the Indiana
Supreme Court’s decision was "contrary
to" Supreme Court precedent because it
did not consider the standard elucidated
in those cases. However, Woodson, 428
U.S. at 304, held that the "Eighth
Amendment . . . requires consideration of
the character and record of the
individual offender . . . as a
constitutionally indispensable part of
the process of inflicting the penalty of
death." That case had nothing to do with
the issue at hand--whether severance
during the penalty phase was required.
Therefore, the standard for determining
whether Rouster’s counsel was ineffective
for failing to move for severance prior
to Phase II is "whether there is a
reasonable probability that [had
severance been granted] the sentencer . .
. would have concluded that the balance
of aggravating and mitigating
circumstances did not warrant death."
Strickland, 466 U.S. at 695.
Rouster speculates that had there been
separate sentencing trials, the witnesses
that testified favorably about Williams
(Williams’ family and friends) would have
testified favorably about him. Rouster
also argues that the State offered
evidence at the joint sentencing
proceeding that Williams had previously
participated in a robbery, and that the
jury may have misascribed that conduct to
Rouster. Next, Rouster suggests that
because Williams had some mitigating
evidence that Rouster did not have
(evidence of a job and kindness to his
relatives), Rouster looked more deserving
of the death penalty in comparison.
Finally, Rouster claims he was prejudiced
by Williams’ counsel’s statements about
him during closing arguments.
Despite Rouster’s contentions, there is
no evidence that in a separate
proceeding, the jury and the judge would
have balanced the aggravating and
mitigating factors differently. See id.The court instructed the jury that it
could recommend the death penalty for
Rouster only if it found 1) that the
State proved that at least one of the
aggravating factors applied to Rouster
and 2) that the mitigating circumstances
applicable to Rouster were outweighed by
the aggravating factor(s). Therefore, the
jury knew that in determining whether to
recommend a death sentence for Rouster,
it should only consider the aggravating
and mitigating factors that applied to
him. See United States v. Boykins, 9 F.3d
1278, 1289 (7th Cir. 1993) (holding that
in joint trial, there is a presumption
that "the jury will follow instructions
on considering each defendant
separately."). Also, in imposing the
death sentence on Rouster, the judge made
specific findings that no mitigating
factor applied to Rouster. Further,
Rouster’s speculations about what would
have happened in a separate sentencing
proceeding do not render the Indiana
Supreme Court’s decision an unreasonable
application of Strickland. See, e.g.,
United States v. Williams, 934 F.2d 847,
852-53 (7th Cir. 1991) (holding
"speculation" insufficient to establish
prejudice). For example, Rouster’s
argument that he looked more deserving of
the death penalty than Williams because
of Williams’ additional mitigating
evidence is belied by the fact that the
jury also recommended the death sentence
for Williams. Therefore, because Rouster
was not prejudiced, we find that the
Indiana Supreme Court’s determination
that Rouster’s counsel was not
ineffective for failing to move for
severance prior to Phase II was not an
unreasonable application of Strickland.
E. Expert Testimony on Self-Defense
Finally, Rouster argues that his trial
counsel was ineffective for failing to
present expert testimony on self-defense
at trial. Rouster asserts that expert
testimony would have established that the
shots Rouster fired at John Rease were
fired in self-defense, based on the
trajectory of the bullet path. In
response to this argument, the Indiana
Supreme Court stated:
Rouster argues that trial counsel were
ineffective for failing to present expert
evidence to show the killings were
committed in an act of self-defense.
Self-defense is not available, however,
as an affirmative defense when one is
engaged in the commission of a robbery.
Ind. Code Ann. sec. 35-41-3-2(d)(1).
Rouster’s proposed evidence (expert
testimony meant to indicate the Reases’
wounds were consistent with shots fired
in self-defense) does not affect the
evidence necessarily believed by the jury
beyond a reasonable doubt that Rouster
and Williams were both engaged in robbery
at the time the killings occurred. Thus,
even if we assume Rouster was indeed
acting to protect himself (an assumption
that is belied by virtually all of the
evidence), he is barred from asserting
self-defense since the jury found he was
engaged in robbery at the time of the
killings. Trial counsel were not
ineffective for failing to offer self-
defense evidence.
Rouster, 705 N.E.2d at 1006.
Even assuming that the expert testimony
would have conclusively shown that
Rouster was acting in self-defense, under
Indiana law, a person "is not justified
in using force if he is committing . . .
a crime." Ind. Code sec. 35-41-3-2(d)(1).
The Indiana Supreme Court has interpreted
this provision to mean that "self-defense
could not be applied as a defense" to the
crime of robbery. Debose v. State, 450
N.E.2d 71, 72 (Ind. 1983). In the present
case, the State charged Rouster with two
counts of felony murder under Ind. Code
Section 35-42-1-1(2), which states that a
"person who . . . kills another human
being while committing or attempting to
commit . . . robbery . . . commits
murder, a felony." The jury instructions
stated that in order for the jury to
convict Rouster of felony murder, it must
find beyond a reasonable doubt that
Rouster killed the Reases while
committing or attempting to commit a
robbery./15 The jury returned a verdict
on those two counts that stated, "[w]e,
the jury, find the defendant, Gregory
Anthony Rouster, guilty of Murder, a
felony." Therefore, the jury necessarily
found that Rouster had committed or
attempted to commit robbery.
The only expert testimony that Rouster
alleges his counsel was ineffective for
failing to present was testimony from a
"reconstruction expert [that] could have
shown the .32 caliber shots fired by the
Petitioner . . . were evidence of self-
defense." This evidence does not affect
the overwhelming evidence believed by the
jury beyond a reasonable doubt that
Rouster was committing or attempting to
commit a robbery when the Reases were
killed. This evidence includes
uncontradicted testimony that Bryant
heard Taylor say that Rouster had a gun,
that he heard Rouster ask Taylor where
the Reases kept their money, that he
heard Rouster say "let’s go rob them,"
that he heard Rouster enter the Rease
house and threaten Henrietta Rease with a
gun, and that he then heard several
gunshots being fired. Further, Newsome
testified that Rouster had given her
money that he had taken from the Reases.
Therefore, because the jury believed the
overwhelming evidence that Rouster
committed a robbery, because the expert
testimony only concerned self-defense and
did not affect the evidence concerning
the robbery, and because self-defense is
not an affirmative defense to robbery,
Rouster was not prejudiced by his
counsel’s failure to present the expert
testimony. See Strickland, 466 U.S. at
687. As Rouster was not prejudiced by
this failure, the Indiana Supreme Court’s
application of Strickland was reasonable.
See United States ex rel. Bell v.
Pierson, 267 F.3d 544, 558 (7th Cir.
2001) (holding state court’s application
of Strickland reasonable where evidence
that counsel failed to present would not
have overcome overwhelming evidence of
guilt).
Finally, Rouster argues that the Indiana
Supreme Court’s reliance on Indiana law
stating that self-defense is not an
affirmative defense to felony murder is
"contrary to" and "an unreasonable
application of" Washington v. Texas, 388
U.S. 14, 18-19, 87 S. Ct. 1920, 18 L. Ed.
2d 1019 (1967) and its progeny./16 See
Williams, 529 U.S at 405-06. However,
Rouster cannot succeed on this claim. In
that case, the Supreme Court held that
criminal defendants had the fundamental
right to "present [their] own witness[es]
to establish a defense." Washington, 388
U.S. at 19. That case dealt with a
defendant’s generalized right to present
a defense--a "right to his day in court."
Id. at 18. Rouster confuses this right
with the purported right to have a state
recognize any particular affirmative
defense that a defendant wishes to raise.
No such right exists and we reject
Rouster’s final claim.
III. Conclusion
Because of the foregoing, we AFFIRM
Rouster’s conviction and sentence.
FOOTNOTES
/1 Ind. Code sec. 35-42-1-1(2) provides that "[a]
person who . . . kills another human being while
committing or attempting to commit . . . robbery
. . . commits murder, a felony."
/2 Taylor pleaded guilty on February 9, 1987, and
therefore, did not proceed to trial.
/3 Newsome and Williams are siblings. At that time,
Newsome was Rouster’s girlfriend, and Toney was
Williams’ girlfriend.
/4 Newsome testified that John Rease was also in the
living room when the Four entered the Rease
house.
/5 Bryant later testified that he had given this
gold watch to Mrs. Rease as a gift. Officer
Lukasik also found a watch with a leather band on
Williams.
/6 The other bullet recovered from Henrietta Rease’s
head was too damaged to test.
/7 The present version of the statute includes
another mitigating factor--that "the defendant
was less than eighteen (18) years of age at the
time the murder was committed." Id. at sec. 35-
50-2-9(c)(7) (2001).
/8 Here, the court instructed the jury that it could
recommend the death penalty for Rouster only if
it found: 1) that the State had proved that at
least one of the aggravating factors applied to
Rouster and 2) that the mitigating circumstances
applicable to Rouster were outweighed by the
aggravating factor(s).
/9 He also did so in a separate order with respect
to Williams.
/10 AEDPA also allows habeas relief when the state
court’s determination of the facts was unreason-
able in light of the evidence presented. 28
U.S.C. sec. 2254(d). However, Rouster has not
raised such a claim so we need not consider this
prong of the statute.
/11 Rouster claims that the Indiana Supreme Court did
not apply the correct standard because it men-
tioned a case (Lockhart v. Fretwell, 506 U.S.
364, 113 S. Ct. 838, 122 L. Ed. 2d 180 (1993))
that had a more stringent requirement for showing
ineffective assistance of counsel than Strickland
did. See Rouster, 705 N.E.2d at 1003. In Wil-
liams, 529 U.S. 413-16, the Supreme Court said
that the Virginia Supreme Court’s decision, which
applied the heightened Lockhart standard to hold
counsel was not ineffective, was "contrary to"
Supreme Court precedent because applying the
correct standard--Strickland--would have rendered
counsel’s performance ineffective. However, the
same problem does not exist here because the
Indiana Supreme Court applied the less stringent
Strickland standard to hold that counsel was not
ineffective, and thus, the heightened Lockhart
standard did not come into play. See Rouster, 705
N.E.2d at 1004-08.
/12 Rouster claims that the Indiana Supreme Court
erred in not discussing the federal standard for
severance, which makes it a due process violation
for joinder to occur "when the evidence or testi-
mony offered by one defendant is truly irrecon-
cilable with the innocence of a codefendant."
Zafiro v. United States, 506 U.S. 534, 543, 113
S. Ct. 933, 122 L. Ed. 2d 317 (1993) (Stevens,
J., concurring). However, this court has held
that when dealing with a state court’s applica-
tion of Strickland to a situation where trial
counsel failed to move for severance in state
court, the Zafiro standard is not "relevant."
Hernandez v. Cowan, 200 F.3d 995, 999 (7th Cir.
2000).
/13 Rouster also mentioned in his brief that New-
some’s counsel argued during closing arguments
that Newsome had received the money the police
found on her "from Greg, after he had told her
these people were dead." However, Rouster has not
identified how this comment was irreconcilable
with his defense.
/14 With respect to this point, the Indiana Supreme
Court opined that severance may not have been
warranted under Indiana law because even if the
jury believed Williams’ counsel’s argument that
Rouster was the triggerman, it still could have
acquitted Rouster based on his intoxication
defense. Therefore, Rouster and Williams’ defens-
es may not have reached the level of antagonism
necessary to warrant severance. See Rouster, 705
N.E.2d at 1005.
/15 Indiana law states that a "person who knowingly
or intentionally takes property from another
person . . . by using or threatening the use of
force on any person . . . commits robbery." Ind.
Code sec. 35-42-5-1.
/16 Rouster makes this argument even though he did
not mention Washington in his brief to the Indi-
ana Supreme Court.