Anthony Apanovitch v. Marc Houk

Filing

OPINION and JUDGMENT filed: AFFIRMED, decision for publication pursuant to local rule 206. Danny J. Boggs (AUTHORING), Karen Nelson Moore, John M. Rogers, Circuit Judges.

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RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0154p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________
X
ANTHONY C. APANOVITCH,
Petitioner-Appellant, No. 09-4333
v.
>
,
DAVID BOBBY, Warden,
Respondent-Appellee. N
Appeal from the United States District Court
for the Northern District of Ohio at Cleveland.
No. 91-02221—John R. Adams, District Judge.

Argued: February 28, 2011
Decided and Filed: June 8, 2011
Before: BOGGS, MOORE, and ROGERS, Circuit Judges.
_________________
COUNSEL
ARGUED: Dale A. Baich, OFFICE OF THE FEDERAL PUBLIC DEFENDER,
Phoenix, Arizona, for Appellant. Laurence R. Snyder, OFFICE OF THE OHIO
ATTORNEY GENERAL, Cleveland, Ohio, for Appellee. ON BRIEF: Dale A. Baich,
OFFICE OF THE FEDERAL PUBLIC DEFENDER, Phoenix, Arizona, Mark R.
DeVan, BERKMAN, GORDON, MURRAY & DeVAN, Cleveland, Ohio, for Appellant.
Laurence R. Snyder, OFFICE OF THE OHIO ATTORNEY GENERAL, Cleveland,
Ohio, for Appellee.
_________________
OPINION
_________________
BOGGS, Circuit Judge. Anthony Apanovitch, an Ohio death-row inmate,
appeals the district court’s dismissal of his petition for a writ of habeas corpus.
Apanovitch argues that he was prejudiced at his 1984 trial by the prosecution’s
withholding of favorable evidence, in violation of Brady v. Maryland, 373 U.S. 83
1

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(1963). It is clear that the prosecution wrongly withheld from Apanovitch favorable
evidence. The state’s conduct was irresponsible, and that conclusion is punctuated here,
in the context of the capital trial. However, the state’s conduct was not—in this
case—unconstitutional, and we affirm.
I
This is the second time that Apanovitch’s habeas petition has come before us on
appeal. A thorough description of its complex procedural and factual history can be
found in this court’s first opinion, Apanovitch v. Houk, 466 F.3d 460 (6th Cir. 2006).
Accordingly, we provide only a brief summary here.
Mary Anne Flynn was brutally raped and murdered in her Cleveland home on
August 23, 1984. Semen, mixed with other bodily fluids, was found inside Flynn’s
mouth and vagina. Investigators determined that the fluids were from someone who
secretes blood type A. No physical traces of the killer were otherwise found at the
scene. However, police soon began to suspect Apanovitch, who had recently performed
house-painting services for Flynn. After police completed their investigation, a grand
jury indicted Apanovitch for the crime on October 2, 1984.
The trial commenced on November 28, 1984, and various pieces of
circumstantial evidence of Apanovitch’s guilt were introduced to the jury. The Ohio
Supreme Court summarized the state’s evidence against Apanovitch as follows:
(1) [Apanovitch] had the same blood type as the perpetrator; (2) he had
a scratch on the left side of his face consistent with that of a scratch from
a fingernail; (3) [Apanovitch] could not adequately account for his
whereabouts on the night in question; (4) [Apanovitch’s] signed
agreement to paint a portion of the victim’s house was found on the
kitchen table the day after the murder was discovered; (5) [Apanovitch]
was familiar with the peculiar layout of the victim’s house;
(6) [Apanovitch] knew the victim and had made statements to others
about his desire to have sexual relations with her; (7) the victim was
fearful and apprehensive of [Apanovitch]; (8) [Apanovitch] spoke with
the victim for roughly ten minutes at approximately 4:00 or 4:30 p.m. on
the day of the murder. (The subject of the discussion, according to
appellant, was the offer to paint the windowsills. A portion of one of the

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sills was used to stab the victim in the neck.); (9) [Apanovitch] told the
police that it did not mean anything if they found his fingerprints in the
house, even though he had painted only the exterior of the house; and
(10) [Apanovitch] offered a variety of inconsistent stories about his
whereabouts on the night of the murder.
State v. Apanovitch, 514 N.E.2d 394, 399 (1987). In addition, a detective who testified
about Apanovitch’s statement regarding his fingerprints in the house also testified that
Apanovitch requested that he be notified “when” he is indicted. The jury returned a
guilty verdict on December 14, 1984. On January 8, 1985, Apanovitch was sentenced
to death.
Apanovitch appealed his conviction in state court, and the Ohio Supreme Court
affirmed his conviction, in a 4–3 decision, in 1987. Id. at 404. Apanovitch next filed
a post-conviction petition in state court. The Ohio Supreme Court upheld the dismissal
of that appeal in 1991. State v. Apanovitch, 574 N.E.2d 1089 (Table). Through these
proceedings, Apanovitch become aware that the prosecution had failed, at the time of his
trial, to disclose to him various pieces of exculpatory evidence. That failure—in
disregard of a well-established obligation—is the reason why, nearly twenty-seven years
after Apanovitch’s conviction, we must pass judgment on its constitutionality here.
On November 1, 1991, Apanovitch filed a petition for a writ of habeas corpus in
the United States District Court for the Northern District of Ohio. While the habeas
proceeding was pending, the Ohio Supreme Court ordered the City of Cleveland to
release to Apanovitch various documents relating to its investigation of Flynn’s murder.
Arguing that this new evidence supported the Brady claims he made in his habeas
petition, Apanovitch moved the district court to include it in the record. Without
addressing the issue, the district court dismissed Apanovitch’s habeas petition in 1993.
Apanovitch filed a timely appeal in this court and, at around the same time, a second
post-conviction petition in state court. In 1994, this court granted Apanovitch’s request
to hold his habeas appeal in abeyance while the state proceeding was pending. The final
state proceeding came to an end on December 20, 1996, with Apanovitch’s conviction

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still intact, State v. Apanovitch, 673 N.E.2d 146 (Table) (Ohio 1996), and Apanovitch’s
habeas appeal resumed.
After unaccountably taking no action on the appeal for nearly eight years, this
court ultimately reversed in part the district court’s 1993 judgment. The panel held that
the district court abused its discretion by not expanding the record to include the newly
released evidence. Apanovitch, 466 F.3d at 490. The panel also held that Apanovitch
established, as to three of his Brady claims, that the prosecution had withheld favorable
evidence, and remanded to the district court to consider the question of prejudice in light
of the new evidence.1 Id. at 477–82. In addition, the panel ordered that the district court
consider newly available DNA evidence in light of Apanovitch’s remaining claims of
actual innocence. Id. at 489–90.
On remand, the district court ordered the DNA testing and, after considering its
result, again dismissed Apanovitch’s petition. Apanovitch v. Houk, 2009 WL 3378250
(N.D. Ohio Aug. 14, 2009). The district court considered the new DNA evidence, which
was highly inculpatory,2 to hold that Apanovitch was not prejudiced under Brady, and,
in the alternative, reached the same conclusion without considering the new DNA
evidence. Id. at *12–*13. On appeal, Apanovitch argues that the district court wrongly
held that he was not prejudiced under Brady and erroneously considered the DNA
evidence as part of its Brady analysis. He also challenges the chain of custody of the
DNA evidence and the district court’s interpretation of the DNA evidence. This court
has jurisdiction to review the final judgment of the district court. 28 U.S.C. § 1291.

1

We are cognizant of the Supreme Court’s recent decision in Cullen v. Pinholster, —S. Ct.—,
2011 WL 1225705 (April 4, 2011), which held that habeas review under 28 U.S.C. § 2254(d)(1) “is limited
to the record that was before the state court that adjudicated the claim on the merits.” Id. at *8. However,
all of the evidence in the expanded record before the district court on remand—with the exception of the
new DNA evidence which will be addressed infra—was considered by the state court in rejecting
Apanovitch’s Brady claim in his second petition for post-conviction relief. See State v. Apanovitch, 667
N.E.2d 1041 (Ohio Ct. App. 1995).
2

Only 1 in 285 million Caucasians have DNA consistent with that left by Flynn’s killer, and
Apanovitch is one such Caucasian. The odds of the DNA being consistent with that of a particular nonCaucasian are in the billions.

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II
As a threshold matter, although we previously ordered the district court to
consider the newly discovered DNA evidence in the context of some of Apanovitch’s
claims, the district court erroneously considered the DNA evidence as part of its
prejudice analysis under Brady. Apanovitch is not now raising a Brady claim with
regard to the DNA evidence itself. The relevant inquiry under Brady is whether there
is a reasonable probability that the result of the trial would have been different had the
Brady evidence not been withheld. Apanovitch, 466 F.3d at 475 (“The failure to disclose
such evidence is ‘material,’ and therefore ‘prejudicial,’ only ‘if there is a reasonable
probability that, had the evidence been disclosed to the defense, the result of the
proceeding would have been different.’” (quoting Strickler v. Greene, 527 U.S. 263, 280
(1999))). The results of a DNA test performed two decades after the trial has concluded
shed no light on the question of whether there is a probability that the jury in 1984 would
have reached a different result had the Brady evidence not been withheld by the
prosecution. New, non-Brady, evidence is enlightening as to whether a petitioner
is—seen as of now—actually innocent. However, it is not enlightening as to the
probability that a petitioner would have—at trial—been acquitted based on the evidence
that was presented to the jury and on the evidence that was withheld from the defense,
which is the Brady inquiry. Notably, Apanovitch no longer argues that he is actually
innocent.
The district court read this court’s previous opinion to stand for the proposition
that the DNA evidence should be used for Brady purposes. Although that interpretation
is incorrect, it is understandable in light of the following language from our earlier
opinion:
We suspect that the DNA evidence, should it be introduced and subjected
to appropriate evidentiary challenges in court, might help resolve
lingering questions of whether Apanovitch suffered actual prejudice
when the state withheld the serological evidence, and whether
Apanovitch’s innocence claim can be verified.

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Apanovitch, 466 F.3d at 489. Standing alone, this language could be interpreted to be
referring to the withheld serological evidence at issue in Apanovitch’s Brady claim.
However, the panel began its DNA-evidence discussion by explaining that one of
Apanovitch’s claims for relief was that the state violated his rights by failing to preserve
the semen evidence for later DNA testing (until 1992, the state could not locate the
evidence). It is only in the context of Apanovitch’s preservation-of-the-evidence claim
that the panel suggested the DNA evidence could be used to determine whether
Apanovitch had been prejudiced by the state’s failure to produce the blood/semen slides
until several years after the trial. As is the case with his actual-innocence claims,
Apanovitch does not bring that claim on appeal. Because Apanovitch’s only remaining
claims are Brady claims, the new DNA evidence is not relevant here and we therefore
do not reach the chain-of-custody and interpretation-of-the-DNA-evidence issues.
III
Apanovitch argues that he was prejudiced by the prosecution’s withholding of
four pieces of evidence. We disagree because, although the evidence introduced against
Apanovitch at trial was not overwhelming, the exculpatory evidence at issue would have
been of little or no value to him. Although the state’s conduct cannot be justified, the
evidence that it withheld would have enabled Apanovitch to dispute only the very
weakest of the prosecution’s evidence and only slightly expand upon theories of
innocence that, despite the state’s conduct, he was still able to present to the jury.
Accordingly, the state’s wrongdoing, while deserving of scorn, does not “put the whole
case in such a different light as to undermine confidence in the verdict.” Bell v. Bell, 512
F.3d 223, 237 (6th Cir. 2008) (en banc) (quoting Kyles v. Whitley, 514 U.S. 419, 435
(1995)).
A
First, the prosecution withheld from Apanovitch a police report concerning
statements that Apanovitch made to a detective during the investigation of Flynn’s
murder. At trial, Detective Anthony Zalar testified that Apanovitch had called him
during the investigation and had “asked me when he’s indic[]ted would I please contact

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him first rather than just go arrest him.” Appellant’s App’x at 47. Zalar further testified
that he had been “stunned” by Apanovitch’s request. Id. at 48. When Apanovitch asked
to see Zalar’s written report, the prosecution explained that the statement at issue was
not in the report. That, as it turned out, was untrue. Eight years later, when the City of
Cleveland, by order of the Ohio Supreme Court, released documents to Apanovitch, one
of the included documents was the written record of Apanovitch’s phone call that the
prosecution had earlier claimed did not exist. In relevant part, the report stated: “While
typing this report, received a phone call from Anthony Apanovitch. He again stated that
he was not responsible for this crime. He did request that if he was arrested or indicted
in connection with this crime, that he be contacted first . . . .” Id. at 33 (emphasis
supplied).
Apanovitch argues that, had the police report not been withheld, the jury would
have heard the correct “if” statement, rather than the “when” statement. The latter
statement, in Apanovitch’s current view, constitutes an implicit confession. To be sure,
the phrase “when I am indicted” reflects that Apanovitch thought he was going to be
indicted. However, at the time he made the call, Apanovitch knew he was being
investigated for the crime.

In that context, the statement is not indicative of

Apanovitch’s sense of guilt, but rather his belief that the police thought he was guilty,
which was a distinct possibility, as he was being seriously investigated. Even the
erroneous statement, then, is far more indicative of, if anything at all, an overzealous
prosecutor than Apanovitch’s guilt. Further, Apanovitch’s actual statement—“if I am
indicted”—still indicates that Apanovitch thought it very likely that he would be
indicted, and, viewed in its proper context, the actual statement therefore differs very
little in meaning and evidentiary value from the statement presented to the jury.
Significantly, the prosecution did not treat the “when” statement as an implicit
confession. As presented at trial, the value of the statement was not that Apanovitch
implicitly confessed, but that Apanovitch’s behavior during the investigation was highly
unusual, and any distinction between “when” and “if” hardly impacts that point. Both
prosecutors, Downs and Hudson, gave closing statements. Downs spoke first and did

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not mention the statement at all. Hudson did mention the statement, but only barely.
Hudson’s closing argument consumes twenty-five pages of transcript, but the reference
to the statement is but a few lines.

Significantly, although Hudson referred to

Apanovitch’s call to the detective as “extremely important,” he said nothing to suggest
that the word “when” had any probative value. Rather, Hudson paid attention to the
other statement Apanovitch made during that same phone call, that he had been in every
room of the house and that, therefore, if detectives found his fingerprints, it did not mean
anything. Notably, it was this aspect of the call, and not the “when” statement, that the
Ohio Supreme Court considered as evidence of Apanovitch’s guilt on direct review, even
though “when” was uncontested at the time. State v. Apanovitch, 514 N.E.2d at 399.
Although Hudson did refer to Detective Zalar’s statement at trial that he was
“stunned” by Apanovitch’s call, that part of the testimony does not change the analysis.
First, although the “if” statement may be less stunning, there is no reason to believe that
Zalar, if impeached with the report, would have recanted his statement that he was
stunned because “if” does not change the bizarre nature of the call. Second, defense
counsel cross-examined Zalar at length, focusing on the issue of why, if Zalar found the
statement so stunning, he did not bother to write it down in his report or mention it to
anyone until months later. Zalar did not offer a coherent explanation, and the use of the
alternative wording would have made this cross-examination no more damaging to the
government.
B
Second, the prosecution withheld from Apanovitch two written reports regarding
the precise location of a hair that was found on the victim’s body after the murder. At
trial, Barbara Campbell, a trace-evidence technician, testified that the hair—which
matched neither the victim nor Apanovitch—was found “on the back portion of
[Flynn’s] hand, which would have been the upper surface.” Appellant’s App’x at 38.
A photograph of the hair’s location was also presented as evidence at the trial. The
photograph shows the hair on the palm of Flynn’s hand, which is bound behind her back
and positioned with the palm facing away from her body. In 1992, Apanovitch received

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a report prepared by Campbell that stated the hair was located “on [the] victim’s back
under her bound hands,” as well as a report prepared by the police stating that Campbell
had reported that the hair was “behind the victims [sic] tied hands.” Id. at 24, 28.
Apanovitch argues that this withheld evidence indicates that the hair was in between
Flynn’s hands and her back, which, in Apanovitch’s view, means that it could have only
been left by Flynn’s true killer and not, as the prosecution argued at trial, accidentally
deposited by investigators.
The value to Apanovitch of the withheld evidence would have been minimal at
best. The theory that the hair belonged to the true killer was already argued by
Apanovitch’s counsel at trial. Accordingly, the withheld evidence “would not have
permitted the development of alternate theories or different lines of argument.” Brooks
v. Tennessee, 626 F.3d 878, 894 (6th Cir. 2010) (quoting Bell, 512 F.3d at 237). To be
sure, the true-killer argument would have been more compelling had Apanovitch been
able to better rebut the prosecution’s explanation for the hair, and he may have been able
to do so if the location of the hair was, in fact, in between the victim’s bound hands and
her back. But neither piece of withheld evidence clearly supports Apanovitch’s view,
and to the extent that either is inconsistent with Campbell’s testimony, its value to
Apanovitch would have been extremely minimal in light of Campbell’s testimony at trial
and the photograph that fully corroborated her testimony. Further, because of the
positioning of the body, it is difficult to briefly describe the location of the hair without
creating an ambiguity. On the other hand, it is easy to describe in only a few words the
location that Apanovitch argues the withheld records indicate: “in between the back and
the hands,” for example. Campbell testified at trial that the hair was “on the back
portion of the hand, which would have been the upper surface.” She also described the
hair’s location as “the area of her hand.” Clearly, Campbell had difficulty describing the
location of the hair with any measure of precision, and, significantly, it was Campbell
who prepared the lab report that Apanovitch now relies upon. In this context, the
photographic evidence truly is worth a thousand words, and it is hard to imagine
Apanovitch’s “in between” argument, which is refuted by both Campbell’s testimony
and the photograph, carrying any weight at all with a jury.

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C
Finally, the prosecution withheld from Apanovitch evidence that Flynn was a
secretor of blood type A. At trial, Campbell testified that, although no physical evidence
linked Apanovitch to the crime, both Apanovitch and the killer secrete blood type A.
According to Campbell’s testimony, because approximately 80% of people secrete their
blood type and approximately 40% of people are blood type A, this blood evidence was
consistent with the killer being any of approximately 340,000 men in the Cleveland area,
enough to fill up Cleveland Stadium six times. Although, as this court stated in its
previous opinion, this evidence is so “extraordinarily weak” that it “is virtually no
evidence at all,” Apanovitch, 466 F.3d at 481–82, the actual evidence, as Apanovitch
later discovered, was weaker still. As it turns out, Flynn was also a type A secretor, and
this fact was withheld from Apanovitch at trial. Because Flynn could have secreted the
type A blood, we cannot be certain that it was secreted by the killer. Therefore, the
blood evidence was inaccurately presented to the jury.
Even so, although the prosecution referred to the evidence multiple times, it did
not do so in a way that prejudiced Apanovitch. Downs mentioned the blood evidence
only once during his closing statement. He stated that, when investigators commenced
their investigation, the only physical evidence they had was that one in three men could
have left the blood evidence and that a hair on the back of the victim’s hand could not
be identified. Downs then explained how investigators identified Apanovitch as the
killer: they found a check in the victim’s house made out to him, they heard her friends’
statements that she was afraid of him, they discovered that he had a scratch on his face
from the night of the murder that he could not explain, and they discovered that he lied
about his alibi. By design, the blood evidence did very little work in Downs’s argument.
It only showed a reason that Apanovitch could not be excluded at the very beginning of
the investigation. Hudson also mentioned the blood evidence once during his closing
statement. Like Downs, Hudson mentioned that the blood evidence narrowed down the
pool of potential killers to one out of every three people. Hudson also referred to the
earlier testimony that you could put all the matching suspects in Cleveland Stadium, but

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then proceeded to argue that the murder was not something performed in front of a
crowd, but was rather a “very private thing.” From there, Hudson laid out all of the
circumstantial evidence of Apanovitch’s guilt. Although Hudson mentioned the blood
evidence, he did not at all rely upon it in explaining to the jury that Apanovitch is the
murderer.3 Both prosecutors, then, mentioned the blood evidence but actually argued
in favor of Apanovitch’s guilt with all of the other evidence in the case and asked the
jury to determine that Apanovitch was the killer based on that evidence, not that he was
a type-A secretor.
In addition, the withheld evidence does not make the blood evidence disappear
entirely, but only weakens it to a degree. The jury was incorrectly led to believe that,
because the killer must have been a type A secretor, one in three men could have
committed the crime, for a total of 340,000 possible suspects in the Cleveland area. In
reality, the blood evidence indicates that the killer could have been either a type A
secretor or a non-secretor.4 Using the numbers presented at trial, over 50% of men could
have committed the crime, for a total of over 500,000 possible suspects in the Cleveland
area, enough to fill Cleveland Stadium nine times, not six. In light of the way the
evidence was presented at trial and employed by the prosecution, the difference between
one third and one half of all men is insignificant: neither is probative of Apanovitch’s
guilt. Accordingly, the withheld evidence would only have rendered the worthless blood
evidence 50% more worthless and did Apanovitch little harm at trial.

3

Hudson delivered the state’s closing statement during the mitigation phase of the trial. At that
time, he again addressed the blood evidence, but, as before, he focused on the other evidence to narrow
down the possible suspects to Apanovitch. At one point, Hudson did say that if Apanovitch had been a
type-B secretor, “he wouldn’t be in this courtroom,” suggesting that the blood evidence played a role. But
this was immediately after repeating the reference to the stadium and explaining how the other
circumstantial evidence worked to narrow the suspects down to Apanovitch.
4

In his brief, Apanovitch argued that, because Flynn was a type A secretor, we do not know
anything about the killer. At oral argument, he conceded that we can still rule out that the killer is a
secretor of another blood type.

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D
The proper Brady inquiry is whether the cumulative effect of the withheld
evidence leads us to conclude that there is a reasonable probability that the result of the
trial would have been different. Doan v. Carter, 548 F.3d 449, 460 (6th Cir. 2008).
Although the withheld evidence was exculpatory, the evidence presented at trial was
sufficient to support Apanovitch’s conviction, and the withheld evidence does not
undermine the best of it, but only the very worst of it. The blood evidence had almost
no value and the value of Apanovitch’s phone call to the police was not that he used the
word “when,” but that his request was unusual and, far more significantly, that he
suggested that the police would find his fingerprints inside the house, which was but one
example of his bizarre, suspicious behavior throughout the investigation. The withheld
evidence does nothing to undermine the most crucial of the evidence against Apanovitch,
such as the testimony that the victim feared him and that he was sexually interested in
the victim, his lack of a consistent explanation for a scratch on his face, his false and
changing alibi, and the fact that the victim was attacked with the very windowsill that
he had spoken to her about painting. Although the mystery hair is arguably exculpatory
evidence, Apanovitch relied on the hair to make that argument at trial, and the related
withheld evidence strengthens that argument only minimally at best. Accordingly,
viewed as a whole, the withheld evidence does not undermine our confidence in the
outcome of Apanovitch’s trial. We do not, however, suggest that the state’s conduct was
proper. Indeed, the state’s conduct was unquestionably improper and, in the context of
a capital trial, egregiously so. But the culpability of the state’s conduct is not the test
under Brady. Rather, Apanovitch must have been prejudiced by the state’s conduct and,
although it is a judgment call, we hold that he was not.
IV
For the foregoing reasons, we AFFIRM the judgment of the district court
dismissing Apanovitch’s petition for a writ of habeas corpus.