Fuson v. Jago

• Citation: 773 F.2d 55
• Decision Date: 11 September 1985
• Docket Number: No. 84-3403,84-3403
• Parties: 19 Fed. R. Evid. Serv. 707 Otis Lee FUSON, Petitioner-Appellee, v. A.R. JAGO, Respondent-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 55

773 F.2d 55

19 Fed. R. Evid. Serv. 707

Otis Lee FUSON, Petitioner-Appellee, v. A.R. JAGO, Respondent-Appellant.

No. 84-3403.

United States Court of Appeals, Sixth Circuit.

Argued Jan. 17, 1985.

Decided Sept. 11, 1985.

Brenda Lang, Asst. Atty. Gen., Columbus, Ohio, Richard David Drake, argued, for respondent-appellant.

Otis Lee Fuson, Cincinnati, Ohio, James W. VanDeilen (CJA) argued, Toledo, Ohio, for petitioner-appellee.

Before KEITH, MERRITT and JONES, Circuit Judges.

KEITH, Circuit Judge.

The Respondent-Appellant, A.R. Jago, acting on behalf of the State of Ohio as the Superintendent of the London Correction Institution, appeals a district court order granting a writ of habeas corpus to the Petitioner-Appellee, Otis Lee Fuson, Jr. The petitioner is presently in the custody of the respondent serving a four to twenty-five year prison sentence he received pursuant to a conviction on one count of aggravated burglary in violation of O.R.C. Sec. 2911.11.

Upon consideration of the petitioner's petition for writ of habeas corpus, the United States District Court for the Southern District of Ohio concluded that the admission of a deceased codefendant's oral statement, which incriminated himself and the petitioner and which was made without oath during post-arrest, custodial interrogation, violated the petitioner's sixth amendment right to confrontation. We conclude the district court judgment granting the writ should be affirmed for the reasons set forth below.

FACTS

William Cook testified at the petitioner's jury trial that on December 12, 1981 he observed the petitioner hoist the deceased codefendant, Gary Martin, onto a neighbor's second floor balcony. After Martin inspected the premises, he jumped to the ground and the two men walked away. A few minutes later the petitioner and Martin returned. The petitioner again boosted Martin up to the balcony. As Martin broke the latch on the balcony door and entered the apartment, the petitioner ran around to the side of the apartment building. Shortly thereafter, Martin emerged through the balcony door carrying a tire iron or crowbar which he threw to the ground before jumping down.

Cook testified that after observing these activities he summoned a security guard and then canvassed the apartment complex in search of the defendants. As Cook returned to his driveway, he recognized the petitioner and Martin from their clothing as they coasted up to him in a car. The defendants looked at Cook for ten seconds and then Martin drove the car out of the apartment complex. Cook reported to police the license number of the car and described the defendants, their activities and the car, a green Gremlin.

An hour later, police officer Jerry Lee spotted such a vehicle, pulled it over and, with the aid of three other patrol cars, apprehended the petitioner and Martin in what was later established as Martin's car. The police search of the car yielded, among several items, a tire iron. Martin and the petitioner were subsequently arrested.

At the police station, Officer Gary Watson advised the petitioner of his constitutional rights and conducted a search of the petitioner's belongings. The officer testified that he found in the petitioner's wallet a piece of paper with the name "Dave" and a telephone number belonging to Dave Scheyer, the resident of the burglarized apartment. Upon questioning, the petitioner denied knowing Scheyer and denied that the slip of paper had been found in his wallet. Officer Watson testified that upon further questioning, the petitioner also denied knowledge of the burglary or ever being at the sight of the crime.

Officer Lee testified at trial that he advised the defendants of their rights prior to questioning them together at the police station. The officer testified that he was surprised when in response to his question about the use of a crowbar to open the balcony door, Martin replied that he had used the tire iron found in his car by the police. Officer Lee, at this point addressing questions to both defendants, asked if both of them had entered the apartment. Martin answered that only he had entered the apartment but that the petitioner had helped him get onto the balcony. Officer Lee asked, "then you both were breaking in"; Martin replied, "yes". The petitioner volunteered no response to this query except to shrug his shoulders.

Prior to trial, codefendant Gary Martin committed suicide. Thereafter, counsel for At trial, the defense presented three alibi witnesses. Becky Magnuson, a housemate of the defendant, testified that on the day of the burglary, the petitioner had returned home from work sometime between 12:00 and 12:30 p.m. and that he remained at home with her family until he was picked up by Gary Martin between 4:15 and 4:30 p.m. Ms. Magnuson testified that she did not hear from him again until later that evening, when he called from the police station. On cross-examination, she admitted that she had not told police of the petitioner's whereabouts that afternoon, but had discussed it with defense counsel the day before trial.

the petitioner filed a motion in limine requesting the trial court to bar the prosecution from introducing evidence of Martin's confession at trial. After a hearing held March 4, 1982, the trial court overruled the petitioner's motion in limine on the ground that Martin's statements were admissible under Ohio Rule of Evidence 801(D)(2)(e) providing for the admission of a co-conspirator's statements made in furtherance of the conspiracy.

Rhonda Earls, Becky Magnuson's sister and the petitioner's girlfriend, also testified that the petitioner had come home from work between 12:00 and 12:30 p.m. and was at home with her all afternoon until Gary Martin picked him up at 4:30 p.m.

Dorothy Wessler, mother of Earls and Magnuson and resident manager of the apartment where the petitioner roomed, testified that when she awoke at 2:00 p.m. on the afternoon of December 12th, the petitioner was home at that time. Wessler stated that he stayed at the apartment until Gary Martin picked him up later that afternoon. The jury subsequently returned a verdict of guilty on one count of aggravated burglary, and the court sentenced the petitioner to a four to twenty-five year term of imprisonment.

The petitioner appealed his conviction to the Ohio Court of Appeals on the ground that the admission of hearsay testimony about Martin's incriminating statements violated the petitioner's sixth amendment right to confrontation. The Ohio Court of Appeals affirmed the conviction, ruling that Officer Lee's testimony about Martin's confession was admissible hearsay as a statement against penal interest under Ohio Rule of Evidence 804(B)(3). The court further concluded that it was not required to address the sixth amendment violation alleged by the petitioner since any error in the admission of Officer Lee's testimony was harmless in light of other overwhelming evidence submitted against the petitioner.

The petitioner thereafter filed in the Supreme Court of Ohio a memorandum in support of jurisdiction alleging the same sixth amendment violation. In a memorandum in opposition to jurisdiction, the state argued that the Supreme Court should decline review of the petitioner's claim on three grounds: (1) Officer Lee's hearsay testimony was admissible under Ohio Rule of Evidence 804(B)(3) because Martin's statements were against penal interest; (2) the testimony was admissible under Ohio Rule of Evidence 801(D)(2)(b) because the petitioner effectively adopted Martin's confession; and (3) any error from admitting testimony about Martin's confession was harmless beyond a reasonable doubt. On June 8, 1983, the Ohio Supreme Court denied the petitioner leave to appeal from the Ohio Court of Appeals judgment affirming his conviction.

On December 20, 1983, the petitioner filed a petition for writ of habeas corpus in the United States District Court for the Southern District of Ohio again alleging that the admission of hearsay testimony about Martin's confession violated his right to confrontation. The district court found that Officer Lee's hearsay testimony did not fall within an established exception to the hearsay rule; that the petitioner did not adopt Martin's statements by shrugging his shoulders when asked to confirm them; and that the circumstances of Martin's confession carried no particularized guarantees of trustworthiness and were in several respects inherently unreliable. The court concluded that in light of the alibi

witness testimony presented at trial, admission of Officer Lee's testimony was not harmless error beyond a reasonable doubt. The district court granted Fuson's petition for writ of habeas corpus on April 16, 1984.

DISCUSSION

The sixth amendment's confrontation clause ¹ does not preclude the admission of all out of court statements. Mattox v. United States, 156 U.S. 237, 242-44, 155 S.Ct. 337, 339-40, 39 L.Ed. 409 (1895); United States v. Licavoli, 725 F.2d 1040, 1049 (6th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 3535, 82 L.Ed.2d 840 (1984). The legitimate use of hearsay testimony when the declarant is not present for cross-examination requires a showing that the declarant is unavailable and that his statements bear adequate "indicia of reliability". Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980); Stevens v. Bordenkircher, 746 F.2d 342, 347 (6th Cir.1984); United States v. Licavoli, 725 F.2d at 1049. If the hearsay testimony falls within an established hearsay exception, its reliability can be inferred. Ohio v. Roberts, 448 U.S. at 66, 100 S.Ct. at 2539. If, however, an established exception to the hearsay rule does not apply, "the [hearsay testimony] must be excluded, at least absent a showing of particularized guarantees of trust worthiness." Id.

We note at the outset the well established rule that habeas review does not ordinarily extend to state court rulings on the...