Havey v. Kropp, 71-1890.

Citation458 F.2d 1054
Decision Date14 April 1972
Docket NumberNo. 71-1890.,71-1890.
PartiesBirney T. HAVEY, Petitioner-Appellant, v. George A. KROPP, Warden, Respondent-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)

Arthur J. Lombard, Detroit, Mich., for petitioner-appellant.

Charles Alpert, Mich. Atty. Gen., Lansing, Mich., for respondent-appellee; Frank J. Kelley, Atty. Gen., Robert C. Goussy, Asst. Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, Mich., on brief.

Before EDWARDS, PECK and KENT, Circuit Judges.

PECK, Circuit Judge.

The two principal issues presented on this appeal were created by two deaths which occurred in the long history of this case, one while it was being litigated in the Michigan state courts and one during a post-conviction proceeding in the federal courts. We deal with the latter first because it is susceptible of summary disposition; indeed, our treatment of this issue would be even more abbreviated were it not for the earnestness with which appellant has presented it.

Following an exhaustion of remedies in the courts of the State of Michigan, petitioner-appellant sought a writ of habeas corpus in the District Court. The case was thoroughly briefed, argued and was submitted, but the District Judge died without announcing a decision. It was subsequently discovered that he had prepared what appeared to be an opinion in final form granting the writ of habeas corpus, but since it had not been filed the case was assigned to another judge. The second judge, being of the view that one issue of fact existed, held a limited evidentiary hearing and further argument, and then filed an opinion denying habeas corpus relief and dismissing the petition. This appeal was perfected from that order, and in the argument above referred to, appellant urges that the second District Judge should have, as a matter of law, filed or caused to be filed the opinion and order of her deceased colleague.

Appellant offers no direct authority in support of this argument, but urges that under Rule 63, Federal Rules of Civil Procedure, (which we conclude to be without application), the deceased judge's opinion could have been filed and judgment entered. He argues the application of Bangor & A. R. R. v. Brotherhood of Locomotive Firemen and Enginemen, 314 F.Supp. 352 (D.D.C.1970), in which the first judge had orally announced his decision and had requested the parties to submit proposed orders. That case, however, is clearly distinguishable from the present one because in the case before us no announcement of any kind had been made. Appellant argues that a filing had been delayed pending a "polishing" of the opinion, but it is just as possible that the delay was occasioned by the existence of some doubt in the mind of the author. Almost certainly, every competent and conscientious judge has on occasion changed his mind during the course of research, contemplation and writing, and at the very least it is his right to do so up to the moment of the filing of his work product. Thus, if anything, the fact that Judge Theodore Levin, who drafted the unfiled opinion, was an outstanding jurist and scholar strengthens the view which we adopt. We hold that Judge Kennedy, from whose order the present appeal was perfected, was not required as a matter of law to file or be bound by the unfiled draft, and suggest that the very fact that a judge of such professional preeminence refrained from filing the opinion may itself have been good cause to find it unpersuasive—if not to regard it with suspicion.

The resolution of the issue arising out of the other death above referred to requires some recitation of the facts. Appellant was indicted under an indictment charging the robbery of a jewelry store in 1959. (The case against a codefendant, who had allegedly waited in and drove the get-away car, was dismissed on motion for lack of evidence, and no aspect of that case is before us.) One Curtis Koontz was alone in the store at the time. He was struck in the face with a pistol wielded by a man whom he subsequently identified as the appellant, and who took approximately $10,000 in jewelry in the store. Koontz identified the appellant from a "mug shot" shown to him in late 1963, four years after the offense. In March, 1964, a preliminary examination was held following appellant's arrest. Koontz testified at that hearing, and appellant's attorney conducted a cross-examination which he now characterizes as "limited." Trial was entered into in December of 1965, and Koontz was called as a witness. However, he collapsed and died on the witness stand during direct examination (and before an opportunity for cross-examination had been presented), and a mistrial was thereupon declared. In April of 1965 another trial was conducted, in the course of which appellant was found guilty by the jury. An exhaustion of state remedies as to that conviction preceded the filing of the present habeas corpus action.

In the course of the second trial Koontz's testimony at the preliminary hearing was presented to the jury from the transcript of that hearing. In that testimony Koontz identified the appellant as his assailant and the robber, and appellee concedes that this evidence, which alone ties appellant into the offense, was essential to the prosecution's case. The question presented is whether appellant was denied his constitutional right to be confronted with the witnesses against him in view of the fact that the testimony of the crucial prosecution witness was received in the form of a transcript of a preliminary hearing, albeit one at which he had opportunity for cross-examination. In this context, confrontation of course means more than what has come to be called an "eyeball to eyeball" meeting. In addition to being physically present with a charging witness, a confrontation in this context must include an opportunity for the accused to...

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  • Com. v. Canon
    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • 19 oktober 1977
    ...368 Mass. ---, --- b, 334 N.E.2d 15 (1975). Accord, United States v. Bell, 500 F.2d 1287, 1290 (2d Cir. 1974); Havey v. Kropp, 458 F.2d 1054, 1057 (6th Cir. 1972). Cf. California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970) (testimony given by a witness at a preliminary hear......
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    ...absent parties' consent, where deceased judge had not issued findings of fact and conclusions of law before death); Havey v. Kropp, 458 F.2d 1054, 1055 (6th Cir.1972) (finding no error in replacement judge refusing to file opinion of deceased judge and denying plaintiff's petition after fir......
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    • U.S. District Court — Eastern District of Michigan
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    ...not violate his Sixth Amendment right to confrontation. See Glenn v. Dallman, 635 F. 2d 1183, 1187 (6th Cir. 1980); Havey v. Kropp, 458 F. 2d 1054, 1057 (6th Cir. 1972); Pillette, 630 F. Supp. 2d at 804-05. Petitioner is not entitled to habeas relief on his second and fifth claims. C. Claim......
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    • U.S. District Court — Eastern District of Michigan
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