Mack v. Bradshaw

MEMORANDUM OF OPINION AND ORDER

SOLOMON OLIVER, JR. UNITED STATES DISTRICT JUDGE

Petitioner Clarence Mack was convicted and sentenced to death in an Ohio state court for the aggravated murder of Peter Sanelli. Mack has filed a petition and amended petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging the constitutionality of his convictions and sentence. (Docs. 24, 155.) Respondent Warden Margaret Bradshaw has filed a return of writ to the amended petition. (Doc. 158.)^[1] Mack has filed a traverse. (Doc. 162.) For the reasons stated below, the court denies Mack's amended petition.

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Factual History

The Ohio Supreme Court set forth the following facts underlying Mack's convictions:

Peter Sanelli, along with his son Anthony, owned and operated Sandglo Glass and Mirror Company on Prospect Avenue in the city of Cleveland. On January 21, 1991, Thomas Sowell Reginald Germany, and the defendant-appellant, Clarence Mack carjacked Mr. Sanelli as he was leaving his business, fatally shooting him and stealing his car

Mr. Sanelli was last seen around 5:45 p.m. by his son Anthony. At that time, Anthony went home for the day, leaving Mr. Sanelli at Sandglo. Before he left, Anthony gave his father a package of nails that he would need for a job. Mr Sanelli's body was found around 6:10 p.m. lying in the middle of the parking lot next to Sandglo. Dr. Robert Challener of the Cuyahoga County Coroner's Office later testified that the autopsy performed by Dr. Kalil Jiraki showed that Mr. Sanelli had been shot three times, and died from these wounds. One bullet entered the left side of the victim's face, somewhat below the ear. The irregular entrance wound indicated that the bullet had come in contact with an intermediate object such as glass before striking the victim. The other two bullets were fired into Mr. Sanelli's left shoulder from close range. One of these bullets struck Mr. Sanelli's left lung and tore the sac which surrounds the heart. A pellet with its copper jacket was retrieved from the right sleeve of Mr. Sanelli's undershirt.

Detective Leo Allen investigated Mr. Sanelli's murder. At the scene where the body was found, Detective Allen discovered three nine-millimeter shell casings on the street three to five feet from the curb. A fourth shell casing was discovered on the sidewalk behind the Dome Grille, a neighboring business.

Mr. Sanelli's car, a 1987 light blue or silver Plymouth Horizon with red and white truck license plates, was found around 7:15 p.m. It had been crashed into a utility pole at East 90th and Holton Avenue. The front driver's side window and rear passenger side window were broken out. Anthony Sanelli testified that the car's windows were all intact when he last saw his father before the murder. An apparent bullet indentation was discovered on the rear passenger door, and a bullet hole was found in the back side of the passenger front seat. Part of a copper jacket to a nine-millimeter bullet was found in the car. No. fingerprints were found.

On January 23, 1991, two days after the murder of Peter Sanelli, Timothy

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Willis approached the Sanelli family with information regarding the murder. The Sanelli family sent Willis to the police. At approximately 2:30 p.m. on January 23, Mr. Willis called Lt. John James, and told him the following story.

Willis stated that on January 21, 1991, he was approached around 5:30 p.m. by the appellant, Thomas Sowell and Reginald Germany, who were looking to buy a gun to aid them in stealing a car. When Willis refused, Germany told Sowell that he had a nine-millimeter gun which Sowell could borrow. The three then drove away. Later around 6:45 p.m. the appellant and Sowell drove up to Willis in a silver Plymouth Horizon. Willis especially noticed that the automobile had red and white license plates and that the back passenger and front driver side windows were broken out. Sowell told Willis that they had obtained the car on Prospect Avenue. The appellant and Sowell then discussed in front of Willis their reasons for shooting “the man.” Sowell said that he had fired at the car window because the man disobeyed his instructions by attempting to lock his door. The appellant claimed that he had started shooting because Sowell had fired. During this discussion, Willis noticed a pair of binoculars. Anthony Sanelli testified that his father kept a pair of binoculars in the car. Later that evening, Willis recognized the car driven by the appellant and Sowell on the evening news story about the murder of Peter Sanelli.

On January 22, 1991, Willis met the appellant and Germany at approximately 9:00 p.m. and drove around with them in a red van. Willis specifically asked the appellant and Germany where they got the silver Plymouth Horizon. The appellant again told Willis that they got it from the downtown area. The appellant and Germany laughed as they related how Sowell had injured his nose when he crashed the stolen car into a pole.

After Willis told the police this story, he informed them where and when they might locate the appellant, Germany and Sowell. Based on the information given by Willis, the police dispatched officers to arrest these men. Willis had told the police that the appellant and Germany were on their way to his address. The police saw a red van matching the description given by Willis park in front of Willis's house at around 4:30 p.m. Reginald Germany, the appellant, and Maurice Washington exited. A fourth man, Brian McKinney, remained in the van. Reginald Germany exited the driver's side of the van holding a nine-millimeter gun in one hand, which he immediately dropped to the ground as the police approached. The officers stopped and frisked each of the men, and searched the van. The officers felt and uncovered a nine-millimeter gun in a holster under the appellant's coat. The police also found a third gun on the floor of the van at the feet of Brian McKinney. Appellant's and Germany's guns were loaded, and two additional clips were recovered from the appellant's pockets as well. The men were taken into custody by the police.

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Willis told police that Thomas Sowell could be located at Cleveland Industrial Drum. Police arrested Sowell there, and discovered a nail in his pocket that matched the type of nails Anthony Sanelli had given his father shortly before Peter Sanelli was murdered.

Detective Qualey, along with Lt. John James, questioned the appellant on January 23, 1991, at approximately 4:30 p.m. after the appellant's arrest. After advising the appellant of his Miranda rights, as printed on a standard police card, Det. Qualey questioned the appellant about the nine-millimeter gun that had been found on the appellant's person at the time of the arrest. Appellant stated that he had bought the gun on January 22, 1991, from an individual who was unknown to him. Further, the appellant denied any knowledge of, or involvement in, the murder of Peter Sanelli. After about an hour of interrogation, appellant was returned to his cell.

About half an hour later Detective Qualey became aware of the results of ballistics tests. The tests revealed that the three spent shell casings found on the street at the murder scene and the bullet found on Peter Sanelli at the morgue had come from appellant's nine-millimeter gun. The ballistics tests also revealed that the gun confiscated from Reginald Germany at the time of his arrest had fired the spent shell casing found on the sidewalk outside the Dome Grille and the copper bullet jacket found in the stolen car.

Detective Qualey reapproached appellant and asked if he knew his rights, to which appellant responded “yeah.” After being informed of the ballistics tests, appellant changed his story. He stated that he had loaned the nine-millimeter handgun to a stranger known to him only as “Dee” the day before the murder of Peter Sanelli. Appellant claimed that Dee had needed protection because he was going to a party. The gun had been returned to the appellant the day after Sanelli's murder. The appellant noticed that the gun had been fired but did not ask why.

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Guilt Phase

The prosecution called several witnesses in its case against the appellant. Dr. Robert Challener of the Cuyahoga County Coroner's Office testified regarding the results of Dr. Kalil Jiraki's autopsy on Peter Sanelli. The state also called Detective Edward Lucey to testify regarding the results of the examination which he and other police experts had conducted on the bullet and shell casings. The prosecution's key witness was Willis, who testified as to the story he told the police.

The defense attempted to call Carole Mancino, one of the appellant's attorneys,

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to provide testimony to impeach Mr. Willis. The trial court refused to allow her to testify. Ms. Mancino proffered that she would have testified about an interview she had with Timothy Willis on May 2, 1991. At that time, Willis was in jail along with the appellant, Germany, and Sowell, who were awaiting trial for the murder of Peter Sanelli. Ms. Mancino claims that Willis told her the following story. Willis never saw any of the defendants on January 21, 1991. Willis did see the appellant and Germany on January 22, 1991 when they came to his house to get a car part, and on January 23, 1991, the appellant and Germany drove to the front of his house to pick Willis up. Willis stated that the appellant and Germany were “good guys” and he could not believe they were involved in something like this. When asked how the police knew that the