Anthony v. DeWitt, 00-3886.
| Decision Date | 15 July 2002 |
| Docket Number | No. 00-3886.,00-3886. |
| Citation | 295 F.3d 554 |
| Parties | William A. ANTHONY, III, Petitioner-Appellant, v. Don DeWITT, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Janine Salloum Ashanin, Pamela Conger-Cox (argued and briefed), Public Defender's Office, Ohio Public Defender Commission, Columbus, OH, for Petitioner-Appellant.
Diane Mallory (argued and briefed), Office of the Attorney General, Corrections Litigation Section, Columbus, OH, for Respondent-Appellee.
Before: RYAN and GILMAN, Circuit Judges; POLSTER, District Judge.*
Petitioner-Appellant William A. Anthony, a state prisoner incarcerated for aggravated murder, appeals the district court's order denying his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. The only issue on appeal is whether the trial court's admission of the testimony of two witnesses, recounting statements made by an out-of-court declarant, violated the Sixth Amendment's Confrontation Clause. For the following reasons, the decision of the district court is AFFIRMED.
On October 18, 1996, a jury convicted William Anthony of the aggravated murder of Patricia Smith, with firearm specifications. Anthony was sentenced to life imprisonment with eligibility for parole at the end of twenty years, plus three years additional incarceration for the firearm specification.
Several months prior to the murder, Smith had filed felony theft charges with the police against Anthony's friend, Rommell Knox, for stealing a ring from her apartment when Knox was performing a routine pest extermination. Knox, who had a prior criminal record, feared going to jail for the theft. On the evening of January 4, 1995, Rommell Knox and William Anthony drove to Smith's apartment complex with Rommell's brother, John Knox, and Rommell's girlfriend, Mary "Buffy" Payne. When they got to the apartment complex, John and Rommell Knox stayed in the car while Payne and Anthony walked to Smith's door. As Smith started to open the door, she was shot and killed with Rommell's gun. Subsequently, Rommell Knox and William Anthony were prosecuted for aggravated murder, and tried separately.1
At Anthony's trial, the state called Detective James Scott.2 Detective Scott testified that he investigated the theft of Patricia Smith's ring. As a result of his investigation, criminal charges were filed against Rommell Knox, a former employee of Ohio Exterminating Co. The charges against Rommell were dropped after Smith's murder.
Robin Dunlap, a resident of Smith's apartment complex, testified that on January 4, 1995, she heard gunshots in the complex and, after hearing the shots, looked out her window and saw what she believed to be a white woman with short, bouncy hair running away from the building. She did not see anyone else in the courtyard. She called 911 when she discovered that her neighbor, Patricia Smith, had been shot.
Detective Brian Lacy, who headed the investigation of Smith's murder, testified that the police had no immediate suspects. A few days later, however, he received a telephone call from a female named Regina Knox (later identified as Rommell's wife), who claimed to have information regarding Smith's murder. He persuaded her to come to the station and, after verifying her identity, interviewed her. As a result of that interview, the investigation focused on Rommell Knox, John Knox, a person named "Will" and a woman named "Buffy." Regina Knox agreed to accompany police officers to the apartment of John Knox, where they found and apprehended John, Rommell and an unidentified woman. Detective Lacy interviewed John Knox and testified that, after the interview, the four suspects remained the same but he could now identify "Buffy" as Mary Payne and "Will" as William Anthony. Detective Lacy observed part of Rommell's interview and personally interviewed Rommell, after which he again confirmed the same four suspects.
After Detective Lacy's testimony but before the state called Mary Payne, the trial court held a preliminary hearing under Ohio Evid. R. 104, outside the presence of the jury, to determine the admissibility of Payne's "hearsay" testimony. At the conclusion of the hearing, the trial judge ruled that the state had sufficient evidence to make a prima facie showing of a conspiracy, but that it would need to present its evidence in the proper order.
Thereafter, Mary Payne testified to the following facts. She met Rommell Knox in November 1994 and began an intimate relationship with him. She later met Rommell's brother, John, and William Anthony, who was introduced to her as Rommell's "cousin." The four spent a lot of time together, often went to a club called Dee's, and Rommell "always called the shots." At the time of the murder, Payne was aware of the theft charges brought against Rommell. On January 4, 1995, Rommell called and invited her out. Rommell arrived at Payne's home with John Knox and William Anthony. They all got into John's car and drove to Smith's apartment complex. Upon arrival at the apartment complex, Rommell pointed out Smith's apartment. He asked Payne if she would accompany Anthony to the apartment and knock on the lady's door who had filed charges against him (Rommell) so that Anthony could talk to her about dropping the charges. Rommell told Payne that he wanted her to knock on the door because the woman would not open the door for a black man (Anthony), but would open it for a white woman (Payne). Payne reluctantly agreed to do it. After Payne knocked on Smith's door and Smith began unlocking it, Anthony told Payne she could go back to the car. On her way back to the car, she heard a gunshot. When she turned, she saw Anthony running toward her with a gun. She testified that the gun looked like one she had previously seen Rommell carry on several occasions and put in the pocket of her coat when they went to "the bar." Anthony grabbed Payne by the arm, said "move, bitch," and ran to the car. As the four drove away from the apartment complex, Payne opened the door and vomited. Upon seeing this, Rommell twisted her arm and threatened to kill her if he even thought she would tell anyone what occurred that evening, adding "right, guys?" — to which Anthony responded, "You got that right, cuz."
John Knox testified that, on the evening of Smith's murder, he accompanied Rommell, Payne and Anthony on what he believed to be a marijuana run. The group stopped at Smith's apartment complex, but he did not see which apartment Payne and Anthony visited. John did not speak with Rommell, Anthony or Payne after leaving the complex and did not listen to the conversation. Instead, he listened to loud music on the car stereo. John further testified that, after he and Rommell were in custody, Rommell told John that he wanted John to implicate Payne and Anthony in Smith's murder, and to tell the police that he (Rommell) was not at the scene. John refused to change his story and Rommell threatened to harm his children.
Rommell's wife, Regina Knox, testified that Rommell returned home at about 9:15 p.m. the evening of Smith's murder. He told her that he went to Smith's apartment along with his brother, Payne and Anthony. He explained that Payne and Anthony went to Smith's door and Payne asked to use the telephone. He said that Anthony stepped from the side of the apartment and shot Smith in the face through the glass. He told Regina that he planned to pay Anthony and Payne $250 each for going along with the plan, and further asked Regina to lie in order to create an alibi for his whereabouts during the time of the murder. He asked her help in searching the house for stray bullets in the event the house was eventually searched. He told Regina that he wanted Smith shot because he did not want to go to jail. On January 7, 1995, Regina contacted the police and made a videotaped statement to Detective Brian Lacy because she was scared and believed that Rommell should be punished. She further testified that Rommell contacted her numerous times while awaiting trial to ask her to lie for him, and she identified the murder weapon as belonging to her husband.
William Anthony presented an alibi defense. His uncle and aunt testified that, on the evening of Smith's murder, Anthony was at home with them from the late afternoon through 9:00 p.m.
Following his conviction, Anthony filed a direct appeal asserting, among other arguments, that the state failed to lay a proper foundation to admit the hearsay statements of Rommell Knox and that, even with a proper foundation, the hearsay evidence was improperly admitted. The appellate panel determined that Mary Payne testified to the following two out-of-court statements:
(1) that Rommell asked her to knock on Smith's door so that appellant could talk to her about dropping the charges; and (2) that Rommell threatened Payne's life if she told anyone what happened there that night.
(Ohio App. Oct. 9, 1997). The appeals court found that the prosecution introduced the first statement before establishing the existence of a conspiracy between Rommell and Anthony, but concluded:
The premature introduction of the statement, although improper, was not prejudicial to [Anthony] because the state could have elicited the statement from Payne at the end of her testimony instead of in the middle.
Id. That said, the appeals court also concluded that the testimony would have been admissible to explain Payne's actions. Id. The appellate court summarily dismissed Anthony's argument regarding the admissibility of Rommell's statements, as introduced through the testimony of Regina Knox:
Likewise, appellant's arguments that Regina Knox (who testified later [than Payne] ) testified prior to the state having presented sufficient evidence...
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