Allen v. Morris

• Decision Date: 15 June 1988
• Docket Number: 85-3870,Nos. 85-3824,s. 85-3824
• Citation: 845 F.2d 610
• Parties: 25 Fed. R. Evid. Serv. 927 Robert ALLEN, Petitioner-Appellee, Cross-Appellant, v. T.L. MORRIS, Respondent-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 610

845 F.2d 610

25 Fed. R. Evid. Serv. 927

Robert ALLEN, Petitioner-Appellee, Cross-Appellant, v. T.L. MORRIS, Respondent-Appellant, Cross-Appellee.

Nos. 85-3824, 85-3870.

United States Court of Appeals Sixth Circuit.

Argued Oct. 10, 1986.

Decided April 26, 1988.

Rehearing and Rehearing En Banc Denied June 15, 1988.

Cordelia A. Glenn, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellant, cross-appellee.

Michael G. Dane, Federal Public Defender, Cleveland, Ohio, for petitioner-appellee, cross-appellant.

Before: KRUPANSKY and RYAN, Circuit Judges; and EDWARDS, Senior Circuit Judge.

KRUPANSKY, Circuit Judge.

Respondent-appellant, cross-appellee T.L. Morris, Superintendent of the Southern Ohio Correctional Facility, appealed from the district court's order granting petitioner-appellee, cross-appellant Robert Allen's (Allen) petition for a writ of habeas corpus in this action commenced pursuant to 28 U.S.C. Sec. 2254. Allen cross-appealed from the district court's rejection of his asserted alternative theories for issuance of the writ.

This case involved a brutal murder as disclosed by the following facts. On the evening of July 23, 1979, Allen and Bruce Karp (Karp) telephoned Thomas Liddy (Liddy) seeking to purchase illegal narcotics from him. Liddy was a "manufacturer" or "processor" of illegal narcotics as evidenced by drug manufacturing equipment later discovered in and confiscated from his home by police. Karp, a drug dealer who had purchased drugs from Liddy via a third person on previous occasions, was desirous of obtaining drugs directly from Liddy for expeditious resale to raise money to satisfy certain of his debts before leaving the state. At approximately 3:00 a.m. the following morning, Karp and Allen proceeded by automobile to Liddy's home located on Sylvia Drive in Eastlake, Ohio. Karp was armed with a 12 gauge double barreled sawed off shotgun and Allen with a .38 caliber Smith and Wesson revolver. They drove to within a block of Liddy's residence, parked the motor vehicle on a side street, and proceeded on foot to Liddy's residence. At Liddy's residence, Karp, armed with his shotgun, positioned himself behind a utility pole located in the approximate area of the front porch.

Allen ascended the steps onto the porch and knocked on the front door. Liddy opened the door and asked him what he wanted. Allen responded that he was desirous of conferring with Liddy. At that point, Liddy produced a revolver and fired. Allen returned Liddy's fire through the open doorway. Allen then moved to the side of the door and shouted to Karp "I'm going to kill this mother fucker." He then fired four shots into the house through a window located next to the door.

After this brief exchange of gunfire had ceased, Allen again approached the doorway where he observed Liddy prostrate and defenseless on the floor in the doorway, as a result of a gunshot wound. Allen entered the dwelling and fired another shot into Liddy's body at close range.

As Liddy lay fatally wounded on the floor, Allen moved into the kitchen and began rummaging through the drawers searching for narcotics. Karp entered the house and pursuaded Allen to leave. The two exited the house and fled. Allen reached the automobile before Karp and abandoned Karp at the scene.

A neighbor who had heard the disturbance investigated, and upon finding Liddy lying on the floor severely wounded, immediately notified the police. Robert Eden, an Eastlake, Ohio police officer, arrived at the scene shortly thereafter and found Liddy still alive; however, Liddy died at the scene shortly thereafter.

Karp was apprehended on July 25, 1983 and incarcerated in the Lake County Jail for approximately three months before he was tried and convicted for aggravated murder as a result of the Liddy murder. While an inmate in the jail, Karp became acquainted with David Holbert (Holbert) who was also a prisoner at the facility.

Holbert testified for the prosecution at Karp's trial. After refreshing his memory from written notes he had made of his conversation with Karp, ¹ Holbert stated that Karp had admitted killing Liddy. Karp was subsequently convicted of aggravated murder in connection with Liddy's death.

Allen was indicted several months later on charges of aggravated murder with prior calculation and design, Ohio Rev.Code Sec. 2903.01(A), aggravated murder while committing or attempting to commit aggravated robbery, Ohio Rev.Code Sec. 2903.01(B), murder, Ohio Rev.Code Sec. 2903.02, voluntary manslaughter, Ohio Rev.Code Sec. 2903.03, ² and aggravated robbery, Ohio Rev.Code Sec. 2911.01. A jury trial was conducted in July, 1980.

At trial, the government presented Karp as a witness, who testified to the events of Liddy's murder. In addition, Karp testified that he had "ditched" the sawed off shotgun after having been abandoned at the scene of the crime by Allen, and that Allen had disassembled the .38 caliber weapon, flushed the smaller parts down the toilet, and threw the remaining components into Lake Erie.

The prosecution also introduced the testimony of several witnesses who corroborated Karp's testimony. Three separate witnesses testified that Allen admitted to them that he had killed Liddy. One of Liddy's neighbors testified that on the night of the murder he heard what he thought were firecrackers, and upon glancing out the window of his home, he saw two men running by his house, one of whom got into a parked car and drove away leaving the other behind. The shotgun Karp had used on the night of the murder was found bearing his fingerprints and was conclusively determined not to be the murder weapon.

In his defense, Allen attempted to introduce the transcript of Holbert's testimony at Karp's trial (the Holbert transcript) pursuant to Ohio R.Evid. 804(B)(1) which, at the time of Allen's trial, provided:

(B) Hearsay exceptions. The following are not excluded by the hearsay rule if the declarant is unavailable as a witness:

(1) Former testimony. Testimony given as a witness at another hearing other than a preliminary hearing of the same or a different proceeding, or in a deposition taken in compliance with law in the course of the same or another proceeding, if the party against whom the testimony is now offered, or, in a civil action or proceeding, a predecessor in interest, had an opportunity and similar motive to develop the testimony by direct, cross, or redirect examination. ³

For the transcript to qualify for admission under Rule 804(B)(1), Allen was required to prove that Holbert was "unavailable" for trial. Ohio R.Evid. 804(A) defines the term "unavailability" and provides, in part:

(A) Definition of unavailability. "Unavailability as a witness" includes situations in which the declarant:

* * *

* * *

(5) is absent from the hearing and the proponent of his statement has been unable to procure his attendance ... by process or other reasonable means. A declarant is not unavailable as a witness if his ... absence is due to the procurement or wrongdoing of the proponent of his statement for the purpose of preventing the witness from attending or testifying.

Ohio R.Evid. 804(A)(5) (emphasis added).

To satisfy his burden of proving Holbert's unavailability, Allen's trial counsel subpoenaed William Rady (Rady), Holbert's probation officer, as a defense witness. On voir dire examination outside the presence of the jury, Rady testified that Holbert was in violation of the terms of his probation, that the probation department was unaware of his whereabouts, and that it had issued a warrant for his arrest. The state trial court refused to permit Rady to specify the action he had taken to locate Holbert.

Allen's counsel next presented Anthony J. Vitale (Vitale), a Lake County, Ohio Sheriff's deputy for voir dire examination. Vitale testified that he had been unsuccessful in serving the probation department's warrant for Holbert's arrest and that he had also been unsuccessful in serving a subpoena for Holbert to appear at Allen's trial, which had been issued by Allen's counsel without listing Holbert's address. The state trial court again refused to permit Vitale to specify the action he had taken to locate Holbert.

During these voir dire examinations, the trial court expressly stated that defense counsel had the burden of implementing independent efforts to locate Holbert and because the efforts Rady and Vitale did not qualify as efforts independently pursued by the defendant to locate Holbert their testimony as to the action that they individually exerted to locate Holbert was, therefore, irrelevant. Counsel advised the court of no independent efforts other than issuing an "address unknown" subpoena for Holbert to appear at trial. The court thereafter concluded that defense counsel's efforts were insufficient to demonstrate Holbert's unavailability and excluded the transcript of his previous testimony.

At the conclusion of the trial, the jury convicted Allen of aggravated murder in committing or attempting to commit aggravated robbery and of aggravated robbery. He was found not guilty of aggravated murder with prior calculation and design and of murder. He was sentenced to 7 to 25 years for aggravated robbery and to life for aggravated murder to be served concurrently.

Allen appealed his convictions to the Ohio Court of Appeals for the Eleventh Appellate District. Among his nineteen assignments of error, Allen asserted that he was denied a fair trial and due process of law in violation of the United States Constitution because the trial court refused to admit the Holbert transcript. The state court of appeals overruled all assignments of error and affirmed the convictions. Allen then sought review by the Ohio Supreme Court which denied leave to appeal.

On February 24, 1984, Allen commenced the present action with his petition for a writ of habeas corpus in the United States District Court for the Northern District of Ohio. Allen asserted...