Buelow v. Dickey
| Decision Date | 12 October 1988 |
| Docket Number | 86-1567,Nos. 86-1566,s. 86-1566 |
| Citation | 847 F.2d 420 |
| Parties | Ralph BUELOW, Petitioner-Appellant, v. Walter DICKEY, Respondent-Appellee. Carol BUELOW, Petitioner-Appellant, v. Walter DICKEY, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
C. Steven Tomashefsky, Jenner & Block, Chicago, Ill., for petitioners-appellants.
Marguerite M. Moeller, Dept. of Justice, Madison, Wis., for respondent-appellee.
Before EASTERBROOK and RIPPLE, Circuit Judges, and GRANT, Senior District Judge. *
Following a jury trial in the Circuit Court of Fond du Lac County, Wisconsin, petitioners Ralph and Carol Buelow were convicted of arson and sentenced to ten years in prison. They appealed their convictions on two sixth amendment grounds: denial of their right to confront witnesses against them, and deprivation of the right to counsel due to an improper finding of nonindigency. The Wisconsin Court of Appeals affirmed the convictions. The Wisconsin Supreme Court dismissed the Buelows' petition for review as untimely filed, and later denied their motion for reconsideration. Having exhausted their state remedies, Ralph and Carol Buelow filed petitions for writs of habeas corpus in federal court pursuant to 28 U.S.C. Sec. 2254. The district court found that the petitioners had not forfeited their right to federal habeas review, but rejected both the right-to-counsel and confrontation claims. The Buelows now seek review of the district court's denial of the habeas petitions. For the reasons set forth below, we reverse and remand.
On December 20, 1981, in Calumet Harbor, Wisconsin, a building belonging to the Wisconsin Department of Natural Resources [DNR] burned down. Although the fire marshal suspected that arson was involved, his investigation produced no suspects. More than thirteen months later, while Police Officer Meves was interviewing Honey Lou Suttner in an unrelated investigation, Suttner offered the information that she had been involved in the DNR fire.
Suttner gave two statements inculpating herself and the Buelows. On February 17, 1983, in an interview given by Detective Dobyns, Suttner claimed that Harlee Suttner, her former husband, arrived one night in December 1981 with Ralph and Carol Buelow. She stated that she believed they were going to blow up an abortion clinic that evening; however, they drove in the Buelows' truck to Calumet Harbor instead. Suttner told Detective Dobyns that she stood guard outside the DNR building, that Ralph Buelow and Harlee Suttner poured gas on the floor and started the fire, and that Carol Buelow parked nearby. As the building went up in flames, she said, they drove back to Harlee Suttner's home. Suttner claimed that Ralph Buelow and Harlee Suttner burned the building because "they don't care for the DNR." On February 25, 1983, Suttner returned to the police station, read the typed copy of the unsworn statement she had made a week earlier, and signed it.
Suttner's second statement was taken under oath before a state circuit judge during a John Doe hearing 1 on May 11 1983. She again implicated herself, Harlee Suttner, and the Buelows in the arson, and added that Harlee Suttner and the Buelows were members of the Posse Comitatus, a group that allegedly did not like the Department of Natural Resources.
Basing probable cause on Suttner's statement to him, Detective Dobyns filed criminal complaints against Ralph and Carol Buelow on May 27, 1983, charging them with being parties to the crime of arson, a Class B felony.
At a preliminary motion hearing on September 9, 1983, the two attorneys representing Carol and Ralph Buelow moved to withdraw on the ground that the Buelows could not afford to pay for representation. The court granted their motions. However, the Buelows' application for appointment of public counsel was opposed by the public defender's office. An indigency hearing was held on September 30, 1983. The public defender asserted that the Buelows were not qualified as indigents because the Buelow farm property and assets being held in trust were determined by his office to be personal property within the reach of the Buelows. Ralph and Carol Buelow claimed, however, that they had neither income nor access to the trust assets. Acknowledging the complexity of the Buelows' financial affairs, the court ordered the Buelows to bring documentation of their claims to a judicial review hearing scheduled for October 11.
At the second hearing on the issue of indigency, the court received and reviewed two quitclaim deeds and the trust indenture naming Carol Buelow and her daughter as trustees. Carol Buelow told the court that the trust required a unanimous vote of the trustees before action could be taken, and that the trustees voted not to turn over to the court the trust tax returns. Following examination of the documents and interrogation of the Buelows, the court determined that the trust did not divest Ralph and Carol Buelow of the trust property and called the trust a "sham." It found that the Buelows were actual and constructive owners of the trust property, and that they had sufficient assets in the trust to disqualify them for an attorney at public expense. After discussing their right to represent themselves at trial, the court upheld the determination of the public defender's office and set the cause for trial.
When the jury trial commenced on January 9, 1984, Ralph and Carol Buelow represented themselves. Of the eight witnesses called by the State, six testified concerning the fire itself, and one described the Suttner interviews. Only Honey Lou Suttner had implicated the Buelows in the crime charged. Suttner took the stand and was placed under oath. However, she refused to testify on fifth amendment grounds, despite the State's offer of immunity and the court's threat of contempt. 2 Thereupon the court held Suttner in contempt and admitted Suttner's two out-of-court statements, over the Buelows' objections, as the admissible hearsay of an unavailable witness. Detective Dobyns read Suttner's statements and Officer Meves testified concerning his questioning of Suttner in January and February of 1983.
The Buelows did not present a defense; they neither testified nor called witnesses in their behalf. On January 10, 1984, the jury convicted them both. On February 17, 1984, they were sentenced to ten years in prison.
The Wisconsin Court of Appeals affirmed the Buelows' convictions on December 26, 1984. State v. Buelow, 122 Wis.2d 465, 363 N.W.2d 255 (Wis.Ct.App.1984). It found that, since the Buelows did not prove indigency by a preponderance of the evidence, the trial court's determination of nonindigency was not clearly erroneous. It also upheld the trial court's admission of Suttner's out-of-court statements as hearsay evidence that was admissible as "statements against interest" of a declarant who was "unavailable" under the statutory definitions of Wisconsin Statutes Secs. 908.04(1)(b) and 908.045(4). Because both statements were found to be trustworthy and reliable, the court concluded that their admission did not violate the Buelows' constitutional right to confront the witnesses against them. Therefore the appellate court affirmed the jury's determination of guilt.
The Buelows' petition for review to the Wisconsin Supreme Court was filed later than the thirty-day bar date established by Wis.Stat. Sec. 808.10 and Sec. 809.62(1). For that procedural reason, their petition was dismissed on January 30, 1985 as untimely, and their motion for reconsideration was denied.
On April 25, 1985, the Buelows filed petitions for federal habeas corpus relief. The district court found that, because the untimely filing in the state supreme court was inadvertent, the petitioners had not forfeited their right to federal habeas review.
I am persuaded that the Buelows' procedural default was the result of inadvertence and that their inability to cross-examine Ms. Suttner, if unlawful, was prejudicial to them. Nutall v. Greer, 764 F.2d 462, 465 (7th Cir.1985).
The fundamental importance of proper confrontation at trial, the significance of the challenged evidence, and the absence of other evidence corroborative of guilt, demonstrate that there was a real possibility of actual prejudice to the Buelows. The character and magnitude of the constitutional infirmities alleged in their habeas petitions thus warrant looking beyond the state procedural forfeiture involved in this case in order to examine the petitioners' contentions. See Riner v. Owens, 764 F.2d 1253, 1256 (7th Cir.1985).
Buelow v. Dickey, 622 F.Supp. 761, 763 (E.D.Wis.1985).
Having found that the Buelows showed sufficient cause and actual prejudice for their procedural default, the court reviewed the merits of their constitutional claims. Following the Ohio v. Roberts test for admissibility of the statements of an unavailable witness, Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the district court determined that Suttner was truly unavailable, and that her statements bore adequate indicia of reliability and trustworthiness. It concluded that the admission of Suttner's hearsay statements did not violate the Buelows' sixth amendment rights to confrontation.
The court then turned to petitioners' claim that they were denied their sixth amendment right to counsel. It agreed with the determination of the Wisconsin courts that the Buelows did not meet their burden of proving indigency. It further found that petitioners did not offer sufficient evidence to the district court to rebut the presumption of correctness accorded state court findings of fact. Id. at 766. After determining that the Buelows had in fact knowingly waived their right to counsel by proceeding pro se, the court denied the Buelows' ...
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