Appeals from the United States District Court for the Northern District of Indiana, South Bend Division. No. 98 C 347--Allen Sharp, Judge.
Before Coffey, Kanne, and Rovner, Circuit Judges.
The opinion of the court was delivered by: Kanne, Circuit Judge
A Lake County, Indiana jury found petitioner Charles Roche, Jr. guilty of murder, and the trial judge sentenced him to death. After exhausting his state court remedies, Roche filed a petition for writ of habeas corpus pursuant to 28 U.S.C. sec. 2254. The district court granted the habeas petition and ordered Roche to be sentenced to life without parole. We affirm the grant of habeas corpus, but vacate the disposition and remand to the district court to return the case to state court for re-sentencing.
On May 11, 1990, the bodies of Ernest "Pee Wee" Graves and Daniel Brown were found near Gary, Indiana. The police soon determined that the two men had been victims of a homicide. On May 16, 1990, an information was filed against Roche in the Lake County Superior Court, charging him with two counts of murder and two counts of felony murder pursuant to Ind. Code sec. 35-42-1-1*fn2 and seeking the death penalty. Edward Niksich and Roche's father, Charles Roche, Sr., were both joined as defendants, although the State did not seek the death penalty against Roche, Sr. On May 21, 1990, Noah Holcomb was appointed as Roche's counsel. Thereafter, both Niksich and Roche, Sr. moved for severance. The court granted Roche, Sr.'s motion, but denied Niksich's, thereby leaving Niksich and Roche to be tried jointly.
Additionally, Niksich moved to suppress the fruits of the search of his home, which the court granted. Niksich also filed a motion in limine, seeking to exclude evidence concerning a robbery in which Niksich had previously been involved. Roche's counsel did not attend any of the severance hearings or the hearings on Niksich's motion to suppress or motion in limine.
During most of the joint trial of Roche and Niksich, Roche wore shackles on his legs while he sat at counsel's table and when he took the stand to testify. The following evidence was adduced against Roche at trial: In early 1990, Niksich told his girlfriend, Patricia Andrasco, that Graves had stolen $120 worth of food stamps from Andrasco's car. Several weeks later, the woman who babysat Andrasco's children overheard a conversation between Roche and Niksich, and one of the men stated that Graves and Brown needed to be killed.
On May 10, 1990, Roche and Niksich went to the Spot Bar in Calumet City, Illinois and induced Graves and Brown to come to Roche's house by concocting a phony drug deal. Once there, Roche and Niksich took Graves and Brown into the basement of the house. Roche then went upstairs into his bedroom and told his girlfriend Delores Duszynski "to stay put" because "he had some guys downstairs that he was going to shoot because [they] owed somebody $120." Duszynski testified that several minutes later, she heard about nine or ten gunshots coming from the basement. She then heard someone pleading for his life, begging "please don't kill me, please don't kill me, just take my money, but please don't kill me." Duszynski then heard several more gunshots, and a few minutes later, Roche, Niksich, and Roche, Sr. came into the bedroom. Roche told her that all the two men had on them was $19 and a dime bag of cocaine. Roche then cut up some lines of cocaine on the dresser in the bedroom, and she, Roche, and Niksich each snorted a line. Roche, Niksich, and Roche, Sr. then loaded the two bodies into the trunk of Duszynski's car and drove off.
The three men then saw Jose Sanchez walking down the street and offered to give him a ride home. Sanchez testified that when he got into the car he saw blood on Roche, Sr.'s shirt. When the group arrived at Sanchez's house, they got out of the car and Roche opened the trunk, inside of which Sanchez saw two bloody bodies. The group then went inside of Sanchez's house, and Roche, Sr. immediately went into the bathroom and came out wearing a different shirt than he was wearing before. Next, the group gathered in Sanchez's living room, and Niksich exclaimed that he had shot one of the victims in the head in the basement of Roche's house and had taken his wallet. Roche then exclaimed that he had shot the other victim once in the chest, once in the stomach, and once in the head. Roche said that the victim was still alive and had begged for his life, but that Roche went upstairs, got a rifle, and went back into the basement and "kept on shooting him in the head." Sanchez testified that Roche told him that he used a .38 caliber gun and a .22 caliber rifle to kill one of the victims.
On May 11, 1990, there was an article in a local newspaper concerning Graves' and Brown's deaths.*fn3 The article stated that two dead bodies had been found at the intersection of 9th Avenue and Cline Avenue near Gary in the early morning hours of May 11. The article also claimed that the police believed that the two dead men were victims of homicides and that there were no suspects at that time. Roche cut the article out of the newspaper and Duszynski put the article into a folder to save as a keepsake.
Furthermore, Roche boasted about his involvement in Graves' and Brown's deaths on several occasions. For example, on May 12, 1990, he told his neighbor Larry Milligan, "I shot one and Eddie [Niksich] shot one." Also, at a party that Roche hosted on May 13, he told another neighbor, James Superits, that he and Niksich had shot two men in Roche's basement a few days earlier. He showed Superits the newspaper article and brought him down to the basement to show him where he and Niksich had shot Graves and Brown. In addition, Roche sold Superits a .38 caliber Derringer handgun, which Superits later gave to the police, and which the State entered into evidence.
On May 13, Sanchez went to the Hammond police station and informed them of his knowledge regarding the deaths of Brown and Graves, pointing the finger at Roche, Niksich, and Roche, Sr. Niksich, Roche, Sr., Duszynski, and Milligan were arrested several days later, although Roche remained at large. On May 16, Roche turned himself in to Russ Ewing, a Chicago television reporter, and Ewing's crew filmed Roche admitting that he shot two men in his basement. Ewing then took Roche to the Gary Police Department, where Roche gave a statement to the police, claiming that he "unloaded seventeen shots with a .22 rifle into the bodies of the two men."
Roche confessed to his involvement in Graves' and Brown's deaths a fifth time on July 10, 1990, while being detained at the Lake County Jail. He told corrections officer Virginia Ratajczak that on May 10, he brought Graves and Brown into the basement of his house, that they had pleaded for their lives, and that he had shot them both to death. The State entered into evidence a redacted series of notes that Roche and another detainee passed back and forth while both were detained at the Lake County Jail. The redacted notes stated as follows:
Detainee: Roche, how do you deal with it, man, now that the prosecutor has filed the death request on ...