Brumley v. Wingard

Decision Date07 August 2001
Docket NumberNo. 00-3515,00-3515
Citation269 F.3d 629
Parties(6th Cir. 2001) Willie Brumley, Petitioner-Appellee, v. Curtis Wingard, Respondent-Appellant. Argued:
CourtU.S. Court of Appeals — Sixth Circuit

Appeal from the United States District Court for the Northern District of Ohio at Akron. No. 97-02706, Dan A. Polster, District Judge. [Copyrighted Material Omitted]

[Copyrighted Material Omitted] John Fenlon, PUBLIC DEFENDER'S OFFICE, OHIO PUBLIC DEFENDER COMMISSION, Columbus, Ohio, for Appellee.

Mark Joseph Zemba, OFFICE OF THE ATTORNEY GENERAL OF OHIO, CORRECTIONS LITIGATION SECTION, Cleveland, Ohio, Stuart W. Harris, OFFICE OF THE ATTORNEY GENERAL, CORRECTIONS LITIGATION SECTION, Columbus, Ohio, for Appellant.

Before: MOORE and COLE, Circuit Judges; ROSEN, District Judge.*

OPINION

KAREN NELSON MOORE, Circuit Judge.

In this habeas case, Warden Curtis Wingard (hereinafter "the State") appeals an order denying post-judgment relief from the district court's order granting habeas petitioner Willie Brumley relief and directing the State to retry Brumley for complicity to commit aggravated murder. We AFFIRM the district court's denial of the State's post-judgment motion. We hold that the district court did not abuse its discretion in denying the State's motion for post-judgment relief because the district court had already considered and rejected the arguments raised in it. In addition, we hold that the district court did not err in granting Brumley habeas relief, because the state trial court's admission of videotaped deposition testimony, without a showing of the witness's unavailability, was contrary to and/or an unreasonable application of clearly established Supreme Court precedent.

I. BACKGROUND

In 1989, Willie Brumley was convicted by a Portage County, Ohio, jury of complicity to commit aggravated murder with two death penalty specifications and kidnaping in connection with the 1984 abduction and murder of Becky Knapp. Brumley was sentenced to life in prison with parole eligibility in thirty years on the complicity to commit aggravated murder count and to a maximum of twenty-five years on the kidnaping count; the sentences were to run consecutively.

After exhausting his state appeals, Brumley filed a federal application for a writ of habeas corpus, pursuant to 28 U.S.C. 2254, on October 21, 1997. The habeas petition was transferred to Magistrate Judge Vecchiarelli for a report and recommendation. Brumley raised only one ground for relief in his federal habeas petition, a Confrontation Clause claim. This claim was described in the following way in his habeas petition: "Trial court permitted State to enter videotape deposition of Tony Kirklin, at the time incarcerated in an Arizona state correctional facility, in lieu of live-in-court testimony. Trial court found Kirklin 'unavailable' and thus testimony admissible." Joint Appendix ("J.A.") at 11.

Tony Kirklin ("Tony") was the brother of Delmar Kirklin ("Delmar"), the individual charged with the murder of Knapp. Tony was a passenger in the car Delmar was driving on the day of the murder, as were Brumley, Kevin Davis ("Davis") (a half-brother of the Kirklins), and Marty Marshall. Tony witnessed the events leading up to the shooting of Knapp by Delmar, including the shooting itself. At the time the State was preparing to try Delmar and Brumley separately in 1989, Tony was incarcerated in an Arizona state prison, having been convicted of cocaine possession in the intervening years. The State thus provided for Tony to be transported from Arizona to Ohio to testify against his brother, Delmar. Delmar's trial had been scheduled before Brumley's, but Delmar pleaded guilty shortly before his trial.

The prosecution then moved the trial court, pursuant to Ohio Crim. R. 151 and Ohio Rev. Code 2945.50,2 to allow them to depose Tony, on videotape, with Brumley and his counsel present. The prosecution offered three reasons for videotaping Tony's testimony at that time. First, the prosecution pointed to the difficulty of the procedures involved, which would require another Arizona state court order before Tony could be transported a second time. Second, the prosecution pointed to the expense of transporting Tony a second time. Third, the prosecution raised the concern that Tony could be released on parole before the trial of Brumley took place, and thus that Tony would be beyond the subpoena power of the State when his testimony would be needed. The state trial court granted this motion over the vigorous objections of Brumley's defense counsel. The prosecution deposed Tony, on videotape, on April 28, 1989.3

Tony testified that he had been a passenger in Delmar's Grand Prix when Delmar picked up Becky Knapp, who was hitchhiking at the time. Delmar eventually drove the Grand Prix to the end of a dead-end road, where everyone but Brumley and Knapp exited the car. Brumley and Knapp were alone in the backseat of the Grand Prix for around twenty minutes, according to Tony; after Brumley exited, Delmar entered the Grand Prix, where he and Knapp were alone for around twenty minutes. After that interval, Delmar and Knapp exited the Grand Prix. Knapp walked to behind the car -- where Brumley, Tony, and the other men were standing -- and squatted down as though to urinate. At that time, Tony testified that one of the men said that Knapp had seen "too much," referring to the Grand Prix's license plates. J.A. at 87. According to Tony, Delmar said that Knapp had to die because she had seen the Grand Prix's license plates. Delmar and Brumley discussed what was going to happen to Knapp, and then the men got back into the Grand Prix. Knapp did not re-enter the vehicle.

At that time, according to Tony's deposition testimony, Brumley produced a revolver and pointed it out the window of the Grand Prix at Knapp. After holding the revolver on Knapp for a few seconds, Brumley handed the revolver to Delmar and told him to kill Knapp. According to Tony, Brumley said, "You waste her." J.A. at 90. Delmar then exited the Grand Prix, walked over to Knapp, pointed the gun at the side of her head, and fired three shots, according to Tony. Tony testified that he witnessed the first shot; he also testified that before the shooting began Davis exited the Grand Prix and started running away from the scene. Delmar and Brumley then loaded Knapp's body into the trunk of the Grand Prix. The men drove to a secluded spot, where Delmar and Brumley carried the body into the woods. (Knapp's body had not been recovered at the time of Brumley's trial, despite searches in the area Tony described; it has subsequently been recovered.) During the deposition, Brumley's counsel made objections for the record and cross-examined Tony.

At trial, the prosecution moved to present the videotaped deposition, pursuant to Ohio Crim. R. 15(F), because Tony was out of the state. In the meantime, the deposition had been "cleaned up," i.e., all the objections and rulings had been removed. The prosecution at that time stated for the record that it had contacted the Arizona authorities the previous week, that those authorities had confirmed that Tony was still incarcerated in Arizona, and that he would remain incarcerated for the near future. The prosecution reiterated that "the State had gone to great trouble and expense to obtain" Tony's deposition testimony when he had been brought to Ohio for his brother's trial and that it was complying with the relevant Ohio statutes. J.A. at 1671. The prosecution also pointed to the defense's cross-examination of the deponent as support for the admissibility of the videotaped deposition.

The trial court granted the prosecution's motion on the basis of Ohio Crim. R. 15 and Ohio Rev. Code 2945.50. Defense counsel objected, preserving its arguments for appeal. The trial judge overruled these defense objections. The jury then viewed the cleaned-up version of the videotaped deposition, which included the testimony summarized supra.

The trial testimony of two other prosecution witnesses is important to this appeal. First, another passenger in the Grand Prix, Davis, testified to what he saw the day of the murder; but because Davis exited the Grand Prix and ran away before the shooting, he was not an eyewitness to the events that occurred after Brumley produced the revolver. Davis did hear shots fired, however. Moreover, the prosecution also produced witness Donald Sanders, who had been in prison with both Delmar and Brumley. Sanders testified to incriminating statements Brumley made while in prison.

After his conviction, Brumley pursued his appeals in state court, filing thirty-six assignments of error with the Eleventh District Court of Appeals. He preserved his Confrontation Clause claim by raising it before that court. The state appellate court denied his appeal on this issue, holding: "Specifically, this court concludes that the state is not required to demonstrate the 'unavailability' of the witness, as that term was defined . . . in Roberts. Instead, in addition to showing the reliability of the deposition, the state must only show the existence of one of the circumstances set forth in Crim.R. 15(F)." J.A. at 439 (footnote omitted). Because Tony was incarcerated in Arizona at the time of Brumley's trial, the requirements of Ohio Crim. R. 15(F) had been satisfied. The state appellate court reached this conclusion based in large part on the special nature of videotaped testimony as opposed to written transcripts: "[S]ince a videotaped deposition gives the jury the opportunity to consider the witness' physical demeanor in determining his credibility, it comes the closest to approximating the circumstances under which actual live testimony is given." J.A. at 438-39. This holding, however, was limited to cases in which the videotaped deposition "was taken for the specific purpose of using it in lieu of . . . live testimony at trial." J.A. at 436...

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