Berkman v. Vanihel
| Decision Date | 11 May 2022 |
| Docket Number | 21-1567 |
| Citation | 33 F.4th 937 |
| Parties | Nathan S. BERKMAN, Petitioner-Appellant, v. Frank VANIHEL, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Russell W. Brown, Jr., Attorney, Region Lawyers, Inc., Merrillville, IN, for Petitioner-Appellant.
Andrew A. Kobe, Caryn Nieman Szyper, Attorneys, Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.
Before Sykes, Chief Judge, Ripple, and St. Eve, Circuit Judges.
Nathaniel Berkman was tried in Indiana state court on first-degree and felony-murder charges for the killing of his drug supplier. The jury acquitted Mr. Berkman on the first-degree murder charge, but could not reach a verdict related to felony murder. A second trial was held at which one of the State's key witnesses, Arlene Timmerman, was declared unavailable due to illness. Timmerman's testimony from the first trial was read into the record, and the jury convicted Mr. Berkman of felony murder.
Mr. Berkman appealed his conviction, claiming error in the trial court's admission of Ms. Timmerman's testimony. The Court of Appeals of Indiana determined that the trial court did not abuse its discretion in admitting the evidence given that Timmerman was unavailable and that Mr. Berkman had had an opportunity to cross-examine Ms. Timmerman at the first trial. The Indiana Supreme Court denied transfer.
After exhausting state postconviction remedies, Mr. Berkman filed a pro se federal habeas petition in which he maintained that the introduction of Timmerman's testimony violated his Sixth Amendment right to confront witnesses as set forth in Crawford v. Washington , 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004). The district court denied relief but granted Mr. Berkman a certificate of appealability on the question of whether the state appellate court unreasonably applied Crawford. Because the Court of Appeals of Indiana did not unreasonably apply Crawford , we affirm the district court's denial of habeas relief.
We recount the facts as set forth by the Court of Appeals of Indiana, which are presumed correct in this habeas proceeding. 1
We supplement as necessary from the transcript of Mr. Berkman's second trial.
In August 2008, Mr. Berkman owed $2,000 to his cocaine dealer, Olen Hawkins. On August 30, Mr. Berkman arranged to meet Hawkins in a supermarket parking lot, ostensibly to pay Hawkins for what was owed. Prior to leaving for the meeting, Mr. Berkman told his girlfriend, Arlene Timmerman, with whom he resided, "that [he] was going to leave to obtain money and cocaine[,] and that he had to go by himself."2
Mr. Berkman took Timmerman's car to the supermarket parking lot, where he met Hawkins. Mr. Berkman got into Hawkins's car, slit his throat, and took the drugs and money that Hawkins had with him. Mr. Berkman returned to Timmerman's house between 9:30 p.m. and 10:00 p.m. Mr. Berkman explained to Timmerman what had transpired, and Timmerman saw Hawkins's body. "[Mr.] Berkman, Timmerman, and Tanya Sullivan, who was visiting, then smoked crack cocaine in the basement until approximately 1:30 or 2:00 a.m."3
At some point during the overnight hours, "[Mr.] Berkman retrieved a knife from the kitchen, held it to Timmerman's neck," and ordered her to the basement.4 Timmerman managed to escape to the home of a friend. The next morning "Timmerman called home, [Mr.] Berkman apologized, and Timmerman returned home."5
When Timmerman arrived, Mr. Berkman informed her that he had devised a plan to dispose of Hawkins's body. On the morning of September 2, Mr. Berkman drove Hawkins's car to a field, doused it with gasoline, and set it on fire. Hawkins's car and remains were discovered two months later.
The State of Indiana charged Mr. Berkman with murder and felony murder, and the case proceeded to trial at which Timmerman testified in person. The "jury acquitted [Mr.] Berkman of murder but failed to reach a verdict on the felony murder count."6
A second felony-murder trial began on August 30, 2011. The State intended to call Timmerman on the third day of trial, but called Sullivan to testify instead. At the beginning of the fourth day of trial, Timmerman was in the hospital, and so the trial court excused the jury and postponed the trial for several days.7
Timmerman appeared to testify the following Tuesday. She had testified for several minutes when the prosecuting attorney realized that Timmerman appeared unwell and asked to approach the witness. When the prosecutor inquired, "Are you okay?" Timmerman responded "No, I'm not."8 Timmerman then was escorted to a back room. There, the court made the following inquiries:
Once Timmerman had left the room, the court asked that Timmerman's purse be retrieved so the witness could get the Tums. It then continued its discussion with counsel concerning how they should proceed. The court did not believe that it was going to be possible for the witness to continue. It then turned to the governing standard for declaring a witness unavailable. The court and both counsel agreed that the court could declare a witness unavailable if she was either unable to be present or unable to testify; Timmerman fell into the second category.10
The court determined, however, that Mr. Page had had a full opportunity to cross-examine Timmerman in the first trial. Because the opportunity to cross-examine was the crux of the Crawford decision, the court determined that the trial would go forward.13
Timmerman's testimony from the prior trial was then read aloud to the jury. Following the conclusion of evidence, the jury returned a guilty verdict against Mr. Berkman.
Mr. Berkman appealed and, among other issues, claimed that the trial court erred in failing to grant a mistrial. Within this argument, he also maintained that the trial court erred in admitting Timmerman's prior testimony. Mr. Berkman began this discussion by noting that granting a mistrial is within the trial court's discretion. Under Indiana law, Mr. Berkman explained, a mistrial was warranted when the defendant is "placed in a position of grave peril to which he should not ... [be] subjected."14 Mr....
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Weisheit v. Neal
...failed to consider the mitigating evidence he had introduced. Relief on this claim is therefore barred by § 2254(d). Berkman v. Vanihel, 33 F.4th 937, 946 (7th Cir. 2022) ("Having failed to come forward with any clearly established Supreme Court precedent that has imposed such a duty on the......