Dennis Auerswald v. Ed Sheldon

Filing

OPINION filed: AFFIRMED, decision not for publication. Alice M. Batchelder, Circuit Judge; Jeffrey S. Sutton, Circuit Judge; and Raymond M. Kethledge, (authoring), Circuit Judge.

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NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 17a0059n.06
No. 16-3009
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DENNIS AUERSWALD,
Petitioner-Appellant,
v.
ED SHELDON, Warden,
Respondent-Appellee.

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FILED
Jan 24, 2017
DEBORAH S. HUNT, Clerk

ON APPEAL FROM THE
UNITED STATES DISTRICT
COURT FOR THE
NORTHERN DISTRICT OF
OHIO

Before: BATCHELDER, SUTTON, and KETHLEDGE, Circuit Judges.
KETHLEDGE, Circuit Judge. An Ohio jury convicted Dennis Auerswald of murdering
his wife Maureen by poisoning her with antifreeze. After an unsuccessful direct appeal in state
court, Auerswald petitioned the district court for a writ of habeas corpus, arguing that the state
trial court had improperly excluded exculpatory evidence on hearsay grounds. The district court
denied the petition, holding that, even if the state court had erred, the error was harmless. We
affirm.
The state proved the following facts at trial. Beginning in 1999, Auerswald abused
Maureen regularly. By 2006 the Auerswalds were sleeping in separate bedrooms, and Maureen
had told friends that she was “done” with her marriage. Maureen also lost her job in 2006, and
as a result, the Auerswalds stopped paying their mortgage. By 2008, they were $40,000 behind
and in danger of losing their home. Meanwhile, Maureen had three life insurance policies,

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including one with a face value of $100,000. Auerswald was the beneficiary on all three
policies.
Auerswald kept a jug of antifreeze in his garage. The antifreeze did not contain a
bittering agent, so it was tasteless. On February 7 and 8, 2009, Maureen felt ill and was taking
Pepto-Bismol. When Auerswald left for work on the morning of February 9, he knew that
Maureen intended to continue taking Pepto-Bismol that day.
Around 6:15 p.m., Auerswald’s friend Tom Perz called him. Auerswald told Perz that he
had just arrived home to find Maureen unconscious on the floor with a gash in her head and a
bottle of vodka next to her. Perz told Auerswald to call an ambulance, but Auerswald refused
and instead asked Perz—who lived 30 minutes away—to pick up him and Maureen and drive
them to the hospital. Perz did so, and they finally arrived at the emergency room around 7:45
p.m. Auerswald brought Maureen’s bottle of Pepto-Bismol to the hospital and threw it away
while he was there.
At the hospital, Auerswald told several doctors and nurses that Maureen had passed out
from drinking. Blood tests showed that Maureen had no alcohol in her system but that she had
ingested ethylene glycol, a chemical commonly found in antifreeze. Without revealing the test
results to Auerswald, a doctor asked him if Maureen might have drunk anything other than
alcohol that day.

Auerswald said that, the night before, Maureen had threatened to drink

antifreeze. The doctor then informed Auerswald that, for Maureen to have any chance at
surviving, they needed to begin hemodialysis immediately. Auerswald told the doctor not to
perform the treatment—he now claims Maureen had a “do not resuscitate” preference—and
Maureen died hours later.

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Police officers interviewed Auerswald twice about Maureen’s death. Contrary to what he
told Perz, he told the police that when he found Maureen on the floor, there was no bottle of
vodka next to her.
Thereafter, Auerswald was arrested and charged with Maureen’s murder. He made bail
and, while home, ordered take-out and struck up a conversation with the delivery man. He told
the delivery man that his wife was dead, that he had been accused of murdering her, and that he
had been in jail because he had “fucked up.”
At trial, the prosecution proved the facts recited above. Auerswald then called his boss,
Jim Kiraly, as a witness. Kiraly intended to testify that, around 9:00 a.m. on the day Maureen
died, he overheard a phone call between her and Auerswald, in which Auerswald told her to
“stop taking that stuff and call the doctor.” The prosecution objected on hearsay grounds, and
the court sustained the objection. The jury later convicted Auerswald of murder, and the court
sentenced him to life in prison.
On direct appeal, Auerswald argued that the statement Kiraly had overheard was not
hearsay, and that the trial court had erred by excluding it. The Ohio Court of Appeals agreed that
the statement was not hearsay, but held that its exclusion was harmless. The Ohio Supreme
Court declined to hear Auerswald’s case. Auerswald then petitioned the district court for a writ
of habeas corpus, making the same argument he had made on direct appeal. The district court
held that, even if the state trial court had improperly excluded Kiraly’s testimony, the error was
harmless. The court therefore denied Auerswald’s petition. This appeal followed.
Auerswald argues that excluding Kiraly’s testimony was not a harmless error. On habeas
review, a “trial error” is harmless unless “the error had substantial and injurious effect or
influence in determining the jury’s verdict.” Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)

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(quotation omitted). Despite Auerswald’s assertion to the contrary, the Brecht standard applies
to all “trial errors,” including the improper exclusion of witness testimony. See Fry v. Pliler, 551
U.S. 112, 120-22 (2007). Thus, the question here is whether there is a substantial chance that, if
jurors had heard Kiraly’s testimony, they would have acquitted.
Again, Kiraly would have testified that, around 9:00 a.m. on the day Maureen died,
Auerswald told her to “stop taking that stuff and call the doctor.” Auerswald asserts that he
would not have said that if he had poisoned Maureen because if she had listened she probably
would have survived and he probably would have gotten caught. Instead, he says, the only
plausible explanation for his statement is that he was genuinely concerned about Maureen.
Yet a jury might see through that explanation rather easily. For example, a jury might
think that, since Maureen had been taking Pepto-Bismol for two days, she had already drunk
enough antifreeze to kill her—and that Auerswald knew it. A jury might also think that a doctor
would not figure out, during a routine office visit, that Maureen had ingested antifreeze, of all
things—and that Auerswald knew that too. Thus, the jury might conclude that Auerswald told
Maureen to call the doctor—within earshot of his boss, as it turned out—precisely because he
thought that doing so would not save Maureen but would seem exculpatory later on. Even
considered on its own terms, therefore, the excluded statement is not nearly as exculpatory as
Auerswald says it is.
The statement’s effect diminishes further when one considers the other evidence
presented at trial. Auerswald needed $40,000 to avoid foreclosure, and by killing Maureen he
would get at least $100,000 in life-insurance proceeds. He had antifreeze in his garage; he knew
Maureen would be taking Pepto-Bismol on February 9; and he threw the Pepto-Bismol bottle
away before police could test it. Moreover, when Auerswald found Maureen unconscious, he

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inexplicably (but for murderous intent, it would seem) did not call an ambulance or drive her to
the hospital himself; instead, he waited 30 minutes for Perz to pick them up. Once at the
hospital, Auerswald insisted that Maureen had been drinking (even though, as he later admitted
to the police, he had found no alcohol near her body) and eventually refused the only treatment
that might have saved her life. Finally, after Maureen’s death, Auerswald told a delivery man
that his wife was dead, that he had been accused of killing her, and that he had been in jail
because he had “fucked up.” Given all that evidence, Kiraly’s testimony about Auerswald’s selfserving statement would not have had a substantial effect on the jury. The statement’s exclusion
was therefore harmless.
The district court’s judgment is affirmed.

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