The United States Court of Appeals for the 6th Circuit recently granted the habeas corpus petition of a death row inmate and ordered a resentencing hearing.
Percy “June” Hutton was convicted in 1986 of the aggravated murder of Derek “Ricky” Mitchell and the attempted murder of Samuel Simmons Jr. along with two counts of kidnapping and one count of felony murder with firearm specifications attached to each count.
On direct appeal, the Court of Appeals for Cuyahoga County found several trial errors and set aside Hutton’s convictions and sentence, but the Ohio Supreme Court reversed that decision and remanded the case to the appellate court to conduct an independent review of the appropriateness of the death penalty in Hutton’s case.
The court of appeals found that the death sentence was appropriate, a decision that Hutton did not appeal.
Instead, in September 1996, Hutton filed a petition for postconviction relief in state trial court but he was denied relief without a hearing. The court of appeals affirmed and the Ohio Supreme Court declined further review.
According to the record of the proceedings, in October 2000, Hutton was granted a delayed appeal and the following year he filed an unsuccessful second petition for postconviction relief.
In 2005, Hutton filed a petition for a writ of habeas corpus in the U.S. District Court for the Northern District of Ohio at Cleveland. That petition was amended in June 2011 but the district court denied habeas relief.
Hutton’s most recent appeal to the 6th Circuit court concerned the district court’s denial of his petition. A divided three-judge appellate panel found merit to one of his claims.
“First, we turn to Hutton’s claim that the trial court failed to instruct the jury on the list of ‘aggravating circumstances,’” Judge Bernice Donald wrote on behalf of the appellate panel’s majority. “The Ohio statutory sentencing scheme for the death penalty requires more than a finding of guilt; it also requires the jury to make a finding of aggravating circumstances.
“The jury must then conclude that the aggravating circumstances outweigh the mitigating circumstances to impose the death penalty.”
In Hutton’s case, the jury instructions listed seven mitigating circumstances but neglected to define or list any aggravating circumstances.
“Thus, there was no indication in the jury instructions which aggravating circumstances the jury could review to make a recommendation,” Donald wrote. “However, Hutton’s trial counsel never objected to the instruction, failing to preserve the claim on appeal.”
The court of appeals pointed out that the state supreme court discovered the error when it reviewed Hutton’s case in 1990.
But the high court determined that Hutton had waived the error on appeal since he failed to address it in his briefs.
In the 6th Circuit court though, Hutton claimed the trial court violated his right to due process by giving the jury “untrammeled discretion” to sentence him.
The reviewing court agreed, noting that “the jury could not have determined that the aggravating circumstances outweighed the mitigating circumstances beyond a reasonable doubt without knowing what the aggravating circumstances were.”
In his dissent, Judge John Rogers held that Hutton’s claim was barred because there was no objection to the jury instructions and he had defaulted on the issue by not bringing it up in earlier proceedings.
Rogers also noted that the jury had already found Hutton guilty of aggravating circumstances before the case moved to the penalty phase.
He also pointed out that, upon review, the Cuyahoga County Court of Appeals reweighed the aggravating circumstances against the mitigating evidence and concluded that the death sentence was appropriate.
But Donald held that, at the time of the court of appeals’ independent review, the jury had not made the necessary findings of aggravating circumstances.
“Without this finding, a death sentence cannot stand,” Donald wrote. “Since the jury did not make the necessary aggravating circumstances finding, Hutton argues that the Ohio Court of Appeals made its own finding of the existence of aggravating circumstances, which the Supreme Court has repeatedly ruled as unconstitutional.”
Judge Gilbert Merritt joined Donald to form the majority and reverse the judgment of the district court, conditionally granting Hutton habeas relief.
Hutton was ordered to be released from custody unless the state grants a new sentencing hearing within 180 days.
The case is cited Hutton v. Mitchell, case No. 13-3968.