Cook v. McKune

• Decision Date: 18 March 2003
• Docket Number: No. 01-3106.,01-3106.
• Parties: Kenneth Mark COOK, Petitioner-Appellant, v. David MCKUNE and The Attorney General of the State of Kansas, Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 825

323 F.3d 825

Kenneth Mark COOK, Petitioner-Appellant, v. David MCKUNE and The Attorney General of the State of Kansas, Respondents-Appellees.

No. 01-3106.

United States Court of Appeals, Tenth Circuit.

March 18, 2003.

Chanda Feldkamp and Sherri L. Schuck, Legal Interns, (Jeffrey A. Wells, Legal Intern, Matt Wilson, Legal Intern, and John J. Francis, Supervising Attorney, with them on the briefs), Washburn Law Clinic, Washburn University School of Law, Topeka, KS, for Petitioner-Appellant.

Jared S. Maag, Assistant Attorney General, Criminal Litigation Division, Office of the Kansas Attorney General, Topeka, KS, for Respondents-Appellees.

Before HENRY, McKAY and JOHN R. GIBSON,^* Circuit Judges.

JOHN R. GIBSON, Senior Circuit Judge.

Kenneth Cook appeals from the denial of his petition for habeas corpus challenging the constitutionality of his conviction in Kansas for the murder of Charles Duty. Of the two witnesses who testified that they were present at the murder, only one, David Rudell, testified that Cook committed the murder. Rudell was not present at the trial. Instead, the trial court found that Rudell was unavailable to testify at trial, and his preliminary hearing testimony was read into the record. Cook contends that the use of Rudell's prior testimony violated Cook's Sixth Amendment right to confront the witnesses against him. We reverse and remand with directions to grant the writ.

Charles Duty's body was found floating in the Wakarusa River near Topeka, Kansas on September 13, 1992. The body was tied to a steel bar. Duty had two gunshot wounds, one of which had killed him. The bullets were of an unusual type. The teeth had been removed from Duty's mouth, and a patch of skin had been removed from each arm. The investigation into Duty's death first focused on Gerald Delay, who had stayed at Cook's house at 107 Lime Street in Topeka briefly the week before Labor Day, September 7, 1992. After police questioning, Delay confessed to helping Cook kill Duty. Delay was charged with the murder, and Cynthia Sewell, of the public defender's office, was appointed to represent him.

The investigation took another turn when Leonard Smith approached the Kansas Bureau of Investigation with information regarding the murder. Smith testified at an inquisition that Cook had told him Cook had killed Duty with Smith's 31 caliber at 107 Lime and that David Rudell had been there in the bathroom at the time.

By the time of Smith's inquisition, David Rudell had fled Kansas. The District Attorney located Rudell in California, had a warrant issued for him under the Uniform Act to Secure Attendance of Witnesses from Without State, Kan. Stat. Ann. § 22-4203, and brought him back to Kansas. Rudell testified at an inquisition that he had driven Cook and Elizabeth Hebert to the house at 107 Lime Street in Topeka on Labor Day 1992, which would have been September 7, 1992, to move their furniture out of the house. Elizabeth Hebert identified herself as Cook's common-law wife. Duty had been staying with Cook and Hebert at 107 Lime, and on the way to the house, Cook told Rudell that Hebert had stolen drugs from Duty. Cook was "packing" a cap-and-ball 31 caliber pistol, and Rudell surmised that Cook was anticipating a confrontation with Duty. Once they arrived at the house, Cook went inside while Rudell turned his truck around to make it easier to load the furniture. Rudell noticed Hebert looking in the window of the house. She was crying and she said, "He shot him." Rudell went inside and saw Duty lying in bed, dead, with a bullet hole in his chest. There was gun smoke in the air and Cook had the gun in his hand. Cook dragged the body to the garage, where he removed the teeth with pliers and cut the tattoos off. Rudell drove Cook and Hebert to a motorcycle shop called the Tin Shed. Cook went behind the shop and came back with a length of steel tubing. They returned to 107 Lime and loaded the body into Rudell's truck. They drove to a deserted spot on the Wakarusa River, where Cook got out and dragged the body, tied to the steel pipe, into the river.

At the inquisition, Rudell testified that Gerald Delay had also been staying with Cook and Hebert at 107 Lime Street the week before Labor Day, but that Delay was not at the house during the killing. He said that Delay stopped by the house during the afternoon of the killing to pick up his belongings, but that the body was in the garage by the time Delay showed up and Delay did not know it was there.

As a result of Rudell's testimony at the inquisition, the District Attorney dismissed the murder charge against Delay and granted Rudell immunity from prosecution for anything other than first-degree murder in connection with the events of September 1-9, 1992.

Rudell reiterated the key points from his inquisition testimony at Cook's preliminary hearing, where he was cross-examined by Cook's lawyer, but he did not return to Kansas for Cook's trial. The State sought to introduce Rudell's preliminary hearing testimony under the exception to the hearsay rule for prior testimony of an unavailable witness, Kan. Stat. Ann. § 60-460(c). The court ruled without an evidentiary hearing that Rudell was unavailable as a witness, and reconfirmed that decision again when Cook's lawyer asked for reconsideration on the ground that it was necessary to take evidence on whether the State had been diligent in trying to secure Rudell's attendance.

The court then held a hearing on Cook's objection that he was deprived of an adequate opportunity to cross-examine Rudell at the preliminary hearing. Cook's objection was that his attorney first learned some time after the preliminary hearing that Rudell was engaged in an intimate relationship with Cynthia Sewell, the lawyer for Gerald Delay. After hearing testimony from Sewell and from the District Attorney on the nature and timing of the Sewell-Rudell relationship, the time-frame when the relationship became known to the District Attorney, and the substance of communications between Sewell and Rudell pertaining to the Cook case, the trial court decided to admit the preliminary hearing testimony. The court held that the District Attorney did not fail to disclose exculpatory evidence to Cook, since she did not learn of the relationship until after the close of the preliminary hearing and she informed his counsel of the Sewell-Rudell relationship more than five months before trial. The court further held that Cook was not prejudiced by being unable to cross-examine Rudell about his relationship with Delay's attorney because Sewell testified that she and Rudell did not discuss any substantive aspect of Rudell's testimony.

So, Rudell's preliminary hearing testimony was read to the jury. The only other witness at trial who claimed to have been present at the killing was Elizabeth Hebert. She testified that Leonard Smith had killed Duty on the Tuesday after Labor Day. Leonard Smith testified that Cook had borrowed his antique reproduction 31 caliber cap-and-ball pistol, and that Cook came by his house the Friday before Labor Day to get fresh ammunition for the gun. Smith said that on that Friday Cook asked Smith to "run a guy off" from the Lime Street house because "Beth had beat him for a bag of dope, pills." Smith also testified that Cook later told him that he had "capped" Duty in the chest three times while Duty was asleep on Labor Day. A former roommate of Rudell's testified that he saw Cook cleaning and loading a black powder gun at Rudell's house. There was no physical evidence linking Cook, Smith, or for that matter, Delay to the killing.

The jury convicted Cook of first-degree murder, and he was sentenced to imprisonment for life without possibility of parole for forty years.

On appeal, the Kansas Supreme Court affirmed the conviction, but vacated the sentence for lack of evidence of aggravating factors. State v. Cook, 259 Kan. 370, 913 P.2d 97, 118 (1996). Cook was resentenced to fifteen years to life.

Cook filed this habeas petition claiming that his Sixth Amendment right to confront the witnesses against him was violated by introducing Rudell's preliminary hearing testimony. He contended that the State had not exercised due diligence to find Rudell and secure his attendance. He also argued that he had not been able to cross-examine Rudell about his relationship with Delay's attorney. He sought an evidentiary hearing.

The district court first considered Cook's motion for an evidentiary hearing on the extent of the District Attorney's efforts to locate Rudell and secure his attendance at trial. The court remarked that the Antiterrorism and Effective Death Penalty Act, commonly known as the AEDPA, enacted heightened standards for obtaining an evidentiary hearing on a habeas claim, 28 U.S.C. § 2254(e)(2) (2000), but the new standards are not applicable when a habeas petitioner has been diligent in seeking to develop the factual basis for his claim and was prevented from doing so. Order of September 29, 2000 at 3, citing Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The court found that Cook made a reasonable effort to develop the factual record in the state court and was not to blame for any lack of factual record. Id. at 4. (Cook had, after all, asked for a hearing on the diligence issue, which the trial court denied.) Therefore, the court applied the pre-AEDPA standard for granting an evidentiary hearing. However, the district court found that Cook failed to show specific facts he wished to develop in addition to those appearing in the state court record. The court held Cook was not entitled to a hearing. Id. at 4-5.

Because Cook filed this petition after April 24, 1996, the effective date of the AEDPA, the district court's consideration of Cook's substantive claims was governed by the AEDPA, under which the court could grant relief only if the underlying state court decision was "contrary to, or involved an...