Bennett v. Scroggy

• Decision Date: 19 June 1986
• Docket Number: No. 85-5388,85-5388
• Citation: 793 F.2d 772
• Parties: John R. BENNETT, Petitioner-Appellant, v. Gene SCROGGY, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 772

793 F.2d 772

John R. BENNETT, Petitioner-Appellant, v. Gene SCROGGY, Respondent-Appellee.

No. 85-5388.

United States Court of Appeals, Sixth Circuit.

Argued April 28, 1986.

Decided June 19, 1986.

R. Neal Walker (argued), Lexington, Ky., Kentucky Dept. of Public Advocacy, Frankfort, Ky., for petitioner-appellant.

John S. Gillig (argued), Asst. Atty. Gen., Frankfort, Ky., for respondent-appellee.

Before ENGEL, KENNEDY and MILBURN, Circuit Judges.

CORNELIA G. KENNEDY, Circuit Judge.

John Bennett, petitioner-appellant, appeals from the District Court's denial of his petition for writ of habeas corpus. Appellant claims that in his murder trial, the state court erred in: (1) refusing to instruct the jury on two lesser included offenses, and (2) refusing to grant a continuance so that appellant could secure the attendance of a witness who would have testified favorably to him. Appellant claims that the first error violated his fourteenth amendment right to due process and that the second error violated his sixth amendment right to compulsory attendance of witnesses and his fourteenth amendment right to due process. Because we agree with appellant's second claim, we reverse the District Court and remand with instructions to grant the petition. ¹

Appellant was indicted by a Campbell County, Kentucky, grand jury for the murder of Vicky Westerfield, in violation of K.R.S. 507.020. After his trial in August 1982, the jury convicted him of first degree manslaughter and imposed the maximum sentence--20 years. The Supreme Court of Kentucky considered the merits of the allegations of error that are now before this Court and affirmed the conviction. Bennett v. Commonwealth, No. 83-SC-28-MR (Ky.1983). Appellant filed a petition for habeas relief in the United States District Court for the Eastern District of Kentucky. The court ultimately adopted the magistrate's recommendation that the petition be dismissed.

The Supreme Court of Kentucky found the following facts, which appellant does not dispute. ² Appellant and his girl friend, Susie, drove into the parking lot of the Kit Kat Club, a night club in Newport, Kentucky, at about 2:30 a.m. on March 17, 1982. They waited for an employee, a woman named Tammy, to get off work. When Tammy exited she was with Westerfield (the deceased). Westerfield approached appellant and Susie and informed them that she wanted Tammy to accompany her rather than appellant and Susie. Westerfield and Susie began arguing. Fearing for Susie's safety, appellant, who was wearing a full leg cast on his left leg, moved between the two women. When Westerfield edged closer to appellant "in a dare-type fashion," Bennett, slip op. at 2, appellant brandished a pistol that he had kept inside his belt. Westerfield backed away, and appellant put the gun back inside of his belt. Westerfield then resumed moving closer to appellant and "dared Bennett to shoot her." Id. Appellant fired two warning shots, one above Westerfield's head and one at the ground. Westerfield, however, continued to advance at appellant with her hands behind her. Appellant fired a third shot into Westerfield's chest. ³ Appellant hastily got into his car and a friend drove him across the Ohio River into Cincinnati, where he was promptly apprehended by officers of the Cincinnati Police Department. Westerfield died within minutes of the shooting.

Appellant's theory at trial was, in essence, that he acted to protect himself from Westerfield. Appellant testified that he thought Westerfield was reaching behind herself for a knife on her belt as she approached appellant. William Stewart, a doorman at the club, testified that Westerfield routinely carried a knife, usually on her belt. Terry Gugle, a Newport police sergeant, testified that he found a knife among Westerfield's belongings at the hospital she was taken to after the shooting. ⁴ Dr. Charles Stevens, a forensic pathologist, testified that at the time of death, Westerfield had a blood alcohol content of 0.29 percent, and that she had taken phenobarbital that night.

I.

We begin by examining appellant's claim based on the refusal of the trial court to continue the trial so that appellant could secure the attendance of a subpoenaed witness. The witness, Robert Bridewell, a close acquaintance of Westerfield, was scheduled to testify that Westerfield had a reputation for violence and that she would be likely to attack a man with her knife.

The Supreme Court has recognized that the right to offer the testimony of witnesses and compel their attendance is constitutionally protected. Washington v. Texas, 388 U.S. 14, 19, 87 S.Ct. 1920, 1923, 18 L.Ed.2d 1019 (1967) (relying on the sixth amendment and due process of law). Failure to grant a continuance to enable a defendant to exercise that right is, under certain circumstances, a denial of due process. See Hicks v. Wainwright, 633 F.2d 1146, 1148-49 (5th Cir.1981). The Court has recognized, in the context of a defendant's assertion of his sixth amendment right to counsel, that the constitutionality of a trial judge's refusal to grant a continuance depends on the circumstances of each particular case, evaluated in the light of the judge's traditional discretion to grant or deny such motions. See Ungar v. Sarafite, 376 U.S. 575, 589, 84 S.Ct. 841, 849, 11 L.Ed.2d 921 (1964); ⁵ see also Hicks, 633 F.2d at 1148-49 (applying Ungar to the right to compulsory process).

The Fifth Circuit has enumerated a list of factors reviewing courts should consider in determining whether an accused was deprived of his rights to compulsory process and due process by a denial of a motion for continuance:

the diligence of the defense in interviewing witnesses and procuring their presence, the probability of procuring their testimony within a reasonable time, the specificity with which the defense is able to describe their expected knowledge or testimony, the degree to which such testimony is expected to be favorable to the accused, and the unique or cumulative nature of the testimony.

Hicks, 633 F.2d at 1149 (quoting United States v. Uptain, 531 F.2d 1281, 1287 (5th Cir.1976) (footnotes omitted)); see also Dickerson v. Alabama, 667 F.2d 1364, 1370 (11th Cir.1982). The Fifth Circuit in Hicks also stated, "When a denial of a continuance forms a basis of a petition for a writ of habeas corpus, not only must there have been an abuse of discretion but it must have been so arbitrary and fundamentally unfair that it violates constitutional principles of due process." 633 F.2d at 1148. There must also be some showing that granting the continuance would have furthered the court's attempt to secure a just determination of the cause. See United States v. Fearwell, 595 F.2d 771, 780 (D.C.Cir.1978).

Turning to the factors delineated by the Fifth Circuit, we note first that appellee does not dispute that appellant was diligent in interviewing Bridewell and procuring his presence. According to the uncontradicted affidavit of appellant's trial attorney, Michael Schulkens, Schulkens personally served the subpoena on Bridewell and gave him directions to the courthouse. The trial judge was aware of the fact that Bridewell was personally served by Schulkens. Appellee also does not deny that appellant's request was for a reasonable amount of time and that it was likely that he would have located Bridewell within that time period. According to Schulkens' affidavit, Bridewell lived in Newport, and thus he probably could have been located overnight. Appellant also made a proper showing of the nature of the expected testimony from Bridewell. Schulkens specifically told the court that Bridewell would testify about Westerfield's reputation for violence, and Schulkens also offered to submit his affidavit to that effect, in lieu of Bridewell's live testimony. Finally, there is no denying that testimony about Westerfield's reputation for violence was expected to be favorable to defendant; defendant was attempting to convince the jury that he acted out of a perceived need to protect himself.

In light of appellee's concessions regarding the first four factors set forth in Hicks, the critical question is whether the testimony was unique and non-cumulative. The District Court, in denying appellant's petition, relied on the conclusion of the Supreme Court of Kentucky that the testimony of the missing witness Bridewell would have been merely cumulative. The Supreme Court of Kentucky based its conclusion on a finding that many of the Commonwealth's witnesses--and appellant himself--testified concerning Westerfield's reputation. ⁶ Appellant disputes that finding.

The findings of state courts are entitled to a presumption of correctness in habeas corpus proceedings. 28 U.S.C. Sec. 2254(d); see also Loveday v. Davis, 697 F.2d 135, 138 (6th Cir.1983) (applying the presumption to findings of a state appellate court). Such findings are binding on federal courts, however, only if fairly supported by the record as a whole. See 28 U.S.C. Sec. 2254(d)(8). In this case, we can readily determine whether there is fair support for the state court's finding; we need merely to examine the transcript to determine whether other witnesses testified about Westerfield's reputation for violence. Having read the transcript, we find no testimony whatsoever--aside from appellant's--about Westerfield's reputation for violence. Not only is such testimony absent from the record, the attorney for the Commonwealth capitalized on its absence during his closing argument.

The testimony of the other witnesses is [sic] all indicated that she didn't have the knife ut [sic] that night, that she didn't have any weapon on her. There has been testimony from only one witness in this whole trial that she had a reputation for violence. William Stewart testified that he had seen her with a knife but only one person said she had a reputation for violence and who was that? That was the defendant. You know, there were other peo...