        RECOMMENDED FOR FULL-TEXT PUBLICATION
             Pursuant to Sixth Circuit Rule 206              2    Zuern v. Tate                        Nos. 00-3526/3543
    ELECTRONIC CITATION: 2003 FED App. 0235P (6th Cir.)
                 File Name: 03a0235p.06                      Ohio, for Appellee. ON BRIEF: Charles L. Wille, Timothy
                                                             D. Prichard, ATTORNEY GENERAL’S OFFICE OF OHIO,
                                                             CAPITAL CRIMES SECTION, Columbus, Ohio, for
UNITED STATES COURT OF APPEALS                               Appellant. Lawrence J. Greger, Dayton, Ohio, Kathleen A.
                                                             McGarry. Glorieta, New Mexico, for Appellee.
               FOR THE SIXTH CIRCUIT
                 _________________                                                _________________
                                                                                      OPINION
 WILLIAM G. ZUERN ,              X                                                _________________
          Petitioner-Appellee/ -                                SILER, Circuit Judge. Arthur Tate, Warden, appeals the
               Cross-Appellant, -                            district court's grant of a writ of habeas corpus to Petitioner
                                  -   Nos. 00-3526/3543
                                  -                          William G. Zuern on the basis of a Brady violation. Zuern
            v.                     >                         appeals the district court's denial of habeas corpus based on
                                  ,                          his claims of insufficiency of the evidence, prejudicial
                                  -                          conduct by a witness, and juror misconduct. For the reasons
 ARTHUR TATE, Warden,             -                          stated below, we REVERSE the district court's grant of
       Respondent-Appellant/ -                               habeas corpus on the basis of the Brady violation, and we
                Cross-Appellee. -                            AFFIRM the denial of habeas corpus on all other claims.
                                  -
                                 N                                                         I.
      Appeal from the United States District Court
       for the Southern District of Ohio at Dayton.            On May 14, 1984, Zuern was incarcerated at the
  No. 92-00771—Walter H. Rice, Chief District Judge.         Community Correctional Institute ("CCI") in Hamilton
                                                             County, Ohio. In the latter part of May 1984, Zuern had a
                Argued: February 4, 2003                     conversation with inmate Wayne C. Lewis about the fact that
                                                             corrections officers failed to give Zuern his full five minutes
            Decided and Filed: July 17, 2003                 of telephone time. During the conversation, Zuern expressed
                                                             general hostility to the officers, saying that "[s]omebody
 Before: BOGGS, NORRIS, and SILER, Circuit Judges.           should do something to them sons of bitches." Lewis also
                                                             had observed Zuern sharpening a straightened portion of a
                  _________________                          metal bucket hook over the course of three days. Lewis
                                                             informed a corrections officer that Zuern had a knife or a
                       COUNSEL                               shank.
ARGUED: Charles L. Wille, ATTORNEY GENERAL’S                   On June 9, 1984, inmate Loyal Hearst informed Deputy
OFFICE OF OHIO, CAPITAL CRIMES SECTION,                      Kenneth Schweinefuss that Hearst and Zuern had argued the
Columbus, Ohio, for Appellant. Lawrence J. Greger, Dayton,   day before and that Zuern stated he was going to kill Hearst.

                            1
Nos. 00-3526/3543                         Zuern v. Tate      3    4     Zuern v. Tate                         Nos. 00-3526/3543

Hearst also said that Zuern had a homemade knife which he         request for relief without affording him an evidentiary
had sharpened on his cell floor. Schweinefuss recorded this       hearing; the Ohio Court of Appeals affirmed the dismissal in
information in a memorandum. That evening, officers were          State v. Zuern, Nos. C- 900481, C- 910229, 1991 WL 256497
ordered to search Zuern's cell, among others. Before the          (Ohio App. December 4, 1991); the Ohio Supreme Court
officers arrived at Zuern's cell, Zuern received a tip from       denied his request for further review.
another inmate that the officers were coming to search his
cell.                                                               Zuern then sought federal habeas corpus relief, asserting 25
                                                                  separate grounds or claims for relief. The magistrate judge
   At approximately 10:20 p.m., Officers Joe Burton and           recommended finding that Lewis's prejudicial statement
Phillip Pence arrived to perform the search and found Zuern       mandated a writ of habeas corpus. The district court
lying naked in his bunk. Officer Pence ordered Zuern to get       disagreed, but found instead that the failure to turn over the
to his feet. Zuern then stood at the door of the cell. Pence      Schweinefuss memorandum (an alleged Brady violation)
unlocked the cell and told Zuern to come out and put his          mandated a writ.
hands against the wall. Zuern lunged at Pence, fatally
stabbing him in the chest with the metal shank. The weapon                                      III.
was a long dagger-like piece of metal, approximately seven
inches long. One end was sharpened to a point, and the other        Zuern filed his petition before the effective date of the
was curved into a loop.                                           Antiterrorism and Effective Death Penalty Act (AEDPA).
                                                                  Under pre-AEDPA analysis, "this court reviews a district
                              II.                                 court's refusal to grant a writ of habeas corpus de novo, but
                                                                  reviews the district court's factual findings for clear error."
   Zuern was indicted for purposely causing the death of          Coe v. Bell, 209 F.3d 815, 823 n.2 (6th Cir. 2002).
another with prior calculation and design in violation of Ohio
Revised Code § 2903.01. A jury found Zuern guilty of                                             IV.
aggravated murder and recommended a death sentence; the
trial judge sentenced Zuern to death. For our purposes, three     A.   Sufficiency of the Evidence
noteworthy events occurred at trial: (1) the prosecution failed
to turn over the memorandum from Schweinefuss; (2) while            Zuern was convicted of aggravated murder, which under
testifying for the prosecution, Lewis improperly blurted out      Ohio Revised Code § 2903.01 (A) requires a finding of prior
"[Zuern] is in here for murder, and he won't hesitate to do it    calculation and design. In the second habeas claim, Zuern
again"; and (3) a juror overheard a television broadcast about    argues that the facts presented at trial are insufficient to prove
Zuern's case.                                                     beyond a reasonable doubt that he acted with prior calculation

  In 1986, the Ohio Court of Appeals affirmed Zuern's
conviction and sentence. Later, the Supreme Court of Ohio
also affirmed. Ohio v. Zuern, 512 N.E.2d 585 (1987).
  Zuern's state court collateral appeals were likewise
unsuccessful: the Court of Common Pleas dismissed his
Nos. 00-3526/3543                                   Zuern v. Tate          5    6      Zuern v. Tate                        Nos. 00-3526/3543

and design.1 The relevant jury instructions, to which neither                     In reviewing the sufficiency of the evidence to support a
party objected, are as follows:                                                 criminal conviction, we must determine "whether, after
                                                                                viewing the evidence in the light most favorable to the
     Prior calculation and design means that the purpose to                     prosecution, any rational trier of fact could have found the
  cause the death was reached by a definite process of                          essential elements of the crime beyond a reasonable doubt."
  reasoning in advance of the homicide, which process of                        Jackson v. Virginia, 443 U.S. 307, 319 (1979).
  reasoning must have included a mental plan involving
  studied consideration of the method and the instrument                          No one disputes the fact that the Zuern killed Pence. The
  with which to cause the death of another.                                     only contested issue on this claim is whether Zuern acted with
     To constitute prior calculation, there must have been                      the "prior calculation and design" needed for an aggravated
  sufficient time and opportunity for the planning of an act                    murder conviction. At trial, the jury heard evidence that
  of homicide, and the circumstances surrounding the                            (1) eleven days before the stabbing, Zuern expressed general
  homicide must show a scheme designed to carry out the                         hostility toward corrections officers, (2) Zuern had advance
  calculated decision to cause the death. No definite period                    notice of the weapons search, (3) instead of hiding the shank
  of time must elapse and no particular amount of                               or getting rid of it, Zuern kept the shank ready at hand
  consideration must be given, but acting on the spur of the                    knowing that the search was coming, and (4) when the
  moment or after momentary consideration of the purpose                        officers arrived at Zuern's cell, he initially complied with their
  to cause the death is not sufficient.                                         order to stand in front of the cell door, lunging at Pence only
     It is not necessary that the defendant have a plan to kill                 after the cell door had been opened.
  a specific individual. Prior calculation and design exists
  where the defendant plans to kill any member of a certain                        State v. Reed, 418 N.E.2d 1359 (Ohio 1981), presented a
  class of persons, even if he did not know in advance who                      similar situation. In Reed, the defendant shot and killed a
  the particular victim would be. Prior calculation and                         police officer who had stopped his car to investigate a
  design in such a situation may be found to exist if the                       botched robbery. Other than the evidence regarding the
  totality of circumstances show a prior calculation and                        shooting itself, the only evidence of prior calculation and
  design to kill a member of a certain group.                                   design was a statement Reed made to a classmate
                                                                                approximately a month before the shooting that "if a cop got
                                                                                in his way (during a robbery) he would blow him away." Id.
                                                                                at 1361.
                                                                                  The Ohio Supreme Court reversed the conviction, finding
    1
       In the first habeas claim, Zuern argues that newly discovered            insufficient evidence of prior calculation and design:
evidence (specifically, subsequent testimony from Lewis and the
Schweinefuss memorandum and deposition) establishes that he did not act             In the case at bar, the evidence regarding the killing at
with prior calculation and design. The Supreme Court has held tha t newly           most indicates the presence of instantaneous deliberation.
discovered evidence does not constitute a freestanding ground for federal
habeas relief, but rather that the newly discovered evidence can only be            The statements appellant made to a classmate that he
reviewed as it relates to an "independent constitutional violation occurring        would kill any police officer who got in the way of a
in the und erlying state crimina l proc eeding." Herrera v. Collins, 506 U.S.       crime he might commit do not show that appellant
390, 400 (1993). Therefore, Zuern 's first habeas claim is best resolved by         designed a scheme in order to implement a calculated
our decision on the alleged Brady violation (discussed below).
Nos. 00-3526/3543                                  Zuern v. Tate         7    8      Zuern v. Tate                          Nos. 00-3526/3543

  decision to kill. Not only were the remarks significantly                   disclosed to the defense. The memorandum included the
  removed from the killing in terms of a time frame but                       following:
  they were very general in nature and thus were not
  relevant to the killing of [the officer].                                       [On June 9, 1984] Inmate Loyal Hearst called me to his
                                                                                  cell and stated that he and William Zuern had an
Id. at 1362-63.                                                                   argument on 6-8-84 and that Zuern stated he was going
                                                                                  to kill him the first chance he got. The inmate Hearst
   Both Reed's and Zuern's statements were made a significant                     also stated that Zuern had in his possession a homemade
time before the killing. If anything, Zuern's statement is less                   knife which he had sharpened on his cell floor.
inculpatory than Reed's, as Zuern's statement that
"[s]omebody should do something to them sons of bitches"                        The Sixth Circuit recently discussed the standard for
does not indicate an intent to kill or predict a specific                     reviewing alleged Brady violations:
situation or killing method. In Zuern's case, the jury heard
specific evidence that immediately before the killing, Zuern                         Pursuant to the rule enunciated in Brady v. Maryland,
received a warning that officers were coming to his cell.                         the government is required to turn over evidence in its
However, in Reed, the jury heard evidence that Reed was                           possession that is both favorable to the accused and
pulled over immediately before the killing (giving him time                       material to guilt or punishment. See United States v.
to contemplate what to do when the officers arrived).                             Bencs, 28 F.3d 555, 560 (6th Cir.1994).
                                                                                     When the defendant, as in this case, asserts that the
  The one important difference between Reed and Zuern is                          newly discovered Brady evidence is exculpatory, the
that in Zuern's case, the jury heard evidence of Zuern's                          defendant will be entitled to a new trial if he shows that
deliberate and prolonged creation of a murder weapon.                             the favorable evidence at issue was "material." United
Viewing the evidence in the light most favorable to the                           States v. Frost, 125 F.3d 346, 382 (6th Cir.1997). In
prosecution, the jury could have found that Zuern created the                     Kyles v. Whitley, 514 U.S. 419, 115 S.Ct. 1555, 131
murder weapon in order to kill an officer.2 Given this                            L.Ed.2d 490 (1995), the Supreme Court clarified the
evidence, a rational jury could find beyond a reasonable doubt                    "materiality" analysis. The Court explained that a
that in killing Pence, Zuern acted with prior calculation and                     showing of materiality does not require that the
design.                                                                           suppressed evidence in question establish the defendant's
                                                                                  innocence by a preponderance of the evidence. Rather,
B.       Brady Violation                                                          the "question is not whether the defendant would more
                                                                                  likely than not have received a different verdict with the
  At trial, in explaining the justification for the search of                     evidence, but whether in its absence he received a fair
Zuern's cell, Schweinefuss testified that an inmate had told                      trial, understood as a trial resulting in a verdict worthy of
him that Zuern had a knife. However, the inmate's identity                        confidence." Id. at 434, 115 S.Ct. 1555; Frost, 125 F.3d
and the contents of Schweinefuss's memorandum were not                            at 382-83 (6th Cir.1997). Nor does the defendant need to
                                                                                  "demonstrate that after discounting the inculpatory
     2
                                                                                  evidence in light of the undisclosed evidence, there
     Indeed, beca use Zuern did not raise the defense of "I planned to kill       would not have been enough left to convict." Kyles, 514
Hearst," the jury's only reasonable inference is that Zuern created the           U.S. at 434-35, 115 S.Ct. 1555; United States v. Smith,
weapon to kill a corrections officer.
Nos. 00-3526/3543                          Zuern v. Tate       9   10   Zuern v. Tate                        Nos. 00-3526/3543

  77 F.3d 511, 515 (D.C.Cir.1996) (materiality                     kill a corrections officer. The prosecution's theory (Zuern
  requirement is not a sufficiency-of-the-evidence test).          planned to kill a corrections officer) and Zuern's proposed
    Instead, any favorable evidence, regardless of whether         theory (Zuern planned to kill Hearst) are not mutually
  the defendant has made a request for such evidence, is           exclusive, as Zuern could have planned to kill both.
  "material" if "there is a reasonable probability that, had
  the evidence been disclosed to the defense, the result of           After hearing evidence of Zuern's deliberate and prolonged
  the proceeding would have been different." Kyles, 514            creation of a murder weapon, the jury certainly could find that
  U.S. at 433-34, 115 S.Ct. 1555 (quoting United States v.         Zuern acted with prior calculation and design to kill someone.
  Bagley, 473 U.S. 667, 682, 105 S.Ct. 3375, 87 L.Ed.2d            The jury apparently concluded that this "someone" was a
  481 (1985)); Frost, 125 F.3d at 382. A "reasonable               corrections officer. Indeed, as Zuern did not pursue the "I
  probability" is "a probability sufficient to undermine           planned to kill Hearst" theory, this conclusion was the jury's
  confidence in the outcome." Bagley, 473 U.S. at 682, 105         only reasonable alternative. However, presentation of the
  S.Ct. 3375; United States v. Presser, 844 F.2d 1275,             alternative would not affect the result. Specifically, even if
  1281 (6th Cir.1988).                                             Zuern had used the memo to persuade the jury that he planned
                                                                   to kill Hearst, we do not believe there is a reasonable
Schledwitz v. United States, 169 F.3d 1003 (6th Cir. 1999).        probability that the jury would have found that Zuern had not
                                                                   planned to kill a corrections officer.
    Our analysis must focus on the contents of the
memorandum not already known by Zuern. Although Zuern              C.   Witness Lewis's Prejudicial Statement
presumably knew that he had threatened Hearst's life, Zuern
did not know that Hearst had notified Schweinefuss or that           During the direct examination of Lewis, the prosecutor
Schweinefuss had written a memo documenting the death              questioned him about a conversation he had with Officer Ron
threat.                                                            Doyle a matter of hours before Zuern killed Pence:

  Zuern argues that, with the memo, he could with greater            Question:     What did you tell Officer Doyle?
confidence pursue the defense of "I planned to kill Hearst, not
a corrections officer." Specifically, he argues that memo            Answer:       I told Officer Doyle, "Officer Doyle, can
would have given him greater certainty that he could prove                         we talk, could we rap? I'm telling you, you
his death threat to Hearst through credible testimony from                         know, Zuern has a shank or a knife or
Hearst and/or Schweinefuss.                                                        whatever you want to call it." I said, "He is
                                                                                   crazy, man, he is in here for murder, and he
   In order to reject the Brady claim, we must find either that                    won't hesitate to do it again."
(1) the memorandum would not have helped Zuern prove that
he planned to kill Hearst, or (2) even if Zuern had convinced      At that point, Petitioner's counsel moved for a mistrial, which
the jury that he planned to kill Hearst, he would still have       the court denied. The court did, however, instruct the jury to
been found guilty. We find that even assuming the                  disregard Lewis's comment:
memorandum would have helped Zuern prove that he planned
to kill Hearst, nevertheless he would have been found guilty         The Court:    Members of the jury, you are admonished
because the jury would still have found that he had planned to                     at this time that any testimony just offered
Nos. 00-3526/3543                           Zuern v. Tate     11    12    Zuern v. Tate                         Nos. 00-3526/3543

                 was a gratuitous remark by the witness,            Forrest's criminal past. Id. Nonetheless, the agent twice
                 and is excluded from your consideration as         referenced the fact that Forrest had been imprisoned for
                 any part of the evidence in this matter.           robbery. Id. We found that "the agents 'blurting' seem[ed]
                                                                    anything but accidental," but that the trial judge had given a
   The dispute here is not over the propriety of Lewis's            clear admonition and the prosecution had offered ample other
comments (which everyone agrees were improper), but rather          evidence of guilt. Id. at 921. Although noting that it was a
over the appropriate remedy. When reviewing the trial               "close question" we found no abuse of discretion in the
decision of a federal district court, the standard of review for    district court's failure to grant a mistrial. Id. That case was
a decision not to grant a mistrial is abuse of discretion.          decided in the stricter supervisory capacity of direct review,
United States v. Chambers, 944 F.2d 1253, 1263 (6th Cir.            not in a habeas corpus petition.
1991). When conducting habeas review of a trial decision of
a state court not touching on a specific provision of the Bill of      In Zuern's case, the first four Forrest factors weigh in favor
Rights, the standard of review is even higher: reversal is not      of the Warden (the remark was unsolicited, the line of
warranted unless the comment "was potentially so misleading         questioning reasonable, the limiting instruction immediate
and prejudicial that it deprived [the defendant] of a               and clear, and evidence of bad faith is absent). Forrest
constitutionally fair trial." Donnelly v. DeChristoforo, 416        involved an improper statement about a robbery conviction in
U.S. 637, 641-42 (1974) (noting that "not every trial error or      the context of a cocaine distribution trial. Zuern's case
infirmity which might call for application of supervisory           involves an improper statement about a prior murder in the
powers correspondingly constitutes a 'failure to observe that       context of a murder trial. The prejudice faced by Zuern is
fundamental fairness essential to the very concept of               greater than that faced by Forrest. Not only is murder a much
justice'"). Specifically, habeas review of this state decision      more heinous crime than robbery, but the inappropriate
involves "the narrow [review] of due process, and not the           propensity evidence is of far greater weight (compare "a
broad exercise of supervisory power that [a federal appellate       robber is likely to distribute cocaine" with "a murderer is
court] would possess in regard to (its) own trial court." Id.       likely to commit murder"). Nevertheless, the failure to grant
                                                                    a mistrial did not constitute a denial of fundamental fairness.
   Given this standard of review, we turn to the question of
whether a mistrial should have been granted. In United States       D.   Failure to Excuse Juror Taylor
v. Forrest, 17 F.3d 916 (6th Cir. 1994), we listed five factors
to consider in determining whether a mistrial is warranted             In the morning before the first day of the trial on which
after an improper reference: (1) whether the remark was             evidence was presented, Juror Beulah Taylor overheard a
unsolicited, (2) whether the government's line of questioning       television broadcast about Zuern's trial. Specifically, she
was reasonable, (3) whether the limiting instruction was            overheard "a version of what had happened, why [Zuern] was
immediate, clear, and forceful, (4) whether any bad faith was       in [jail] in the first place,[and] that he had been there
evidenced by the government, and (5) whether the remark was         previous[ly]." Taylor told the court that she could be fair, but
only a small part of the evidence against the defendant. Id. at     would rather not serve. Zuern's counsel did not immediately
920.                                                                request that she be removed, but the following morning, after
                                                                    viewing the broadcast at issue, he moved for a mistrial, or, in
  In Forrest, the trial judge specifically directed the             the alternative, to remove Taylor from the jury. Taylor was
prosecutor to warn a witness (an ATF agent) not to testify to       brought before the court a second time, and she again
Nos. 00-3526/3543                           Zuern v. Tate     13    14   Zuern v. Tate                       Nos. 00-3526/3543

indicated that she could be fair. The trial court declined either   reasonable probability that the result of the proceeding would
to excuse Taylor or to declare a mistrial.                          have been different, (3) the failure to grant a mistrial after
                                                                    Lewis's prejudicial statement did not constitute a denial of
  When reviewing a federal district court's actions in a case       fundamental fairness, and (4) the failure to excuse Juror
of alleged juror misconduct, this court reviews for abuse of        Taylor after she saw a television broadcast about Zuern's case
discretion under all the circumstances. United States v.            did not constitute a denial of fundamental fairness.
Shackelford, 777 F.2d 1141, 1145 (6th Cir. 1985). Again, as
we are conducting habeas review of a state decision, we must          Accordingly, we REVERSE the district court's grant of
focus on "the narrow [review] of due process, and not the           habeas corpus on the basis of the Brady violation, and we
broad exercise of supervisory power that [a federal appellate       AFFIRM the denial of habeas corpus on all other claims.
court] would possess in regard to (its) own trial court."
Donnelly, 416 U.S. at 641-42.
  In United States v. Rugiero, 20 F.3d 1387 (6th Cir. 1994),
we listed four points to consider in cases of possible improper
juror contact: "(1) when a defendant alleges that an
unauthorized contact with a juror has tainted a trial, a hearing
must be held; (2) no presumption of prejudice arises from
such a contact; (3) the defendant bears the burden of proving
actual juror bias; and (4) juror testimony at the 'Remmer
hearing' is not inherently suspect." Id. at 1390. Both the
Ohio Supreme Court and the federal magistrate judge in this
case found that Zuern had waived the claim for juror
misconduct, as Zuern's counsel did not request Taylor's
removal after the first hearing on the issue. However, the trial
court allowed Zuern's counsel to raise the juror misconduct
objection the next day, and ruled on the merits that Taylor
would remain on the jury. Reaching the merits, we find no
jury misconduct error warranting reversal. The trial court
properly held a Remmer hearing, and concluded – based on
Taylor's assurances – that she could serve as a fair and
impartial juror. Zuern has not met his burden of proving
actual juror bias.
                               V.
  In sum, we find that (1) sufficient evidence supports the
jury finding of aggravated murder, (2) had the Schweinefuss
memorandum been disclosed to the defense, there is not a
