Glenn v. Dallman
| Decision Date | 06 November 1980 |
| Docket Number | No. 79-3312,79-3312 |
| Citation | 635 F.2d 1183 |
| Parties | 7 Fed. R. Evid. Serv. 1415 Preston GLENN, Petitioner-Appellant, v. William DALLMAN, Supt. Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Gregory L. Ayers, Asst. Franklin County Public Defender, Columbus, Ohio, for petitioner-appellant.
Preston Glenn, pro se.
William J. Brown, Atty. Gen. of Ohio, Richard David Drake, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellee.
Before WEICK and KENNEDY, Circuit Judges and CECIL, Senior Circuit Judge.
This is an appeal from a judgment of the United States District Court for the Western Division of the Southern District of Ohio denying the petition of the appellant, Preston Glenn for a writ of habeas corpus. Glenn was indicted by the January term of the Franklin County, Ohio Grand Jury on count one of aggravated burglary in violation of Ohio Revised Code Section 2911.11 and on count two of grand theft in violation of Ohio Revised Code Section 2913.02.
The appellant was tried before a jury and was convicted on both counts. He was sentenced on May 6, 1976, to a term of four (4) to twenty-five (25) years on the aggravated burglary count and a term of six (6) months to five (5) years on the grand theft count, the sentences to run concurrently. The place of confinement was the Ohio State Reformatory. In Glenn's appeal to the State Court of Appeals, the judgment of the trial court was affirmed in a two to one decision. The Supreme Court of Ohio denied Glenn's motion for leave to appeal. (April 29, 1977)
Glenn filed his petition for a writ of habeas corpus against William Dallman, Superintendent, Lebanon Correctional Institution, in the district court on May 15, 1978. His grounds for relief were stated as follows:
1. Petitioner's conviction was obtained in violation of his right to confront and cross examine, guaranteed by the Sixth and Fourteenth Amendments to the Constitution, when during his trial the trial court allowed the preliminary hearing testimony of an absent, adverse witness to be read to the jury over objection.
2. Petitioner's conviction was obtained in violation of his Sixth and Fourteenth Amendment rights to due process and a fair trial when the trial court refused to charge the jury on an essential element of aggravated burglary, the offense for which he was convicted. (Appendix page 83b)
On June 16, 1978, Dallman filed a return of writ denying petitioner's claims. The district judge issued an opinion on August 8, 1978 in which he found Glenn's first claim to be well taken but that the error was harmless beyond a reasonable doubt. He further found that the Appellant's second claim was without merit. Determining that an evidentiary hearing was not required, he entered a judgment dismissing the petition.
Thereafter, on August 18, 1978, Dallman filed a motion to alter or amend the judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. Dallman's motion was directed solely to the district court's finding, in the first instance, that the introduction of the preliminary hearing transcript of the testimony of the absent witness constituted a violation of the Confrontation Clause of the Constitution. In this connection he objected to the court's finding that the state had failed to make a "good faith" effort to procure the physical appearance of the witness whose preliminary hearing testimony was offered at trial.
Dallman conceded that, under the facts of this case, where the evidence of guilt was overwhelming, any alleged error would be harmless beyond a reasonable doubt and that, therefore, the judgment dismissing the petition would be correct under any analysis. However, since there is a direct conflict in Havey v. Kropp, 458 F.2d 1054 (6th Cir. 1972) and State v. Roberts, 55 Ohio St.2d 191, 378 N.E.2d 492 (1978), and the Glenn opinion will stand as a precedent, it would be an appropriate vehicle to resolve the Constitutional issue thus presented.
The district court issued an opinion on September 18, 1978, finding that Dallman's motion to alter or amend the judgment was well taken. Upon consideration, the court held that an evidentiary hearing would be required in order to determine whether the state had made a "good faith" effort to produce the absent witness.
Mevilin Rogers was the witness who testified at the preliminary hearing of Glenn on the indictment and who was absent at the time of trial. A transcript of her testimony at the preliminary hearing was introduced at the trial. The question, thus presented, is whether Glenn was denied the right "to be confronted with the witnesses against him" in accordance with the Sixth Amendment to the Constitution of the United States.
Rogers had testified at the preliminary hearing that she lived at 472 Ellison in Columbus, Ohio, next door to the burglarized house, and, on that date at approximately she saw Glenn. She said at this time she saw Glenn "coming back and forth out the back door because I could look right in her window." She saw him carry "a speaker out."
On cross examination she testified that she had never seen Glenn before the occasion in question. She said she gave a description to Mrs. Clark, whose house had been burglarized as follows: " * * * he had on a black cap, long * * * long stringing and I said with a mustache, tall, sort of medium height." From five or six pictures shown her by police, she identified Glenn. She did not see a second person going in and out of the house. 1
At the evidentiary hearing, held by the district judge to determine the unavailability of Rogers, Glenn called no witnesses and presented no evidence. The state presented Melvin Clark and Donald Searles, a Columbus policeman. Clark, with whom the record indicates Rogers lived at the time of the crime, had previously testified both at the preliminary hearing and at petitioner's trial that he saw petitioner burglarize his neighbor's apartment. Clark was one of two eye witnesses to the crime who actually testified at trial that they saw petitioner commit the burglary. (The other eye witness who testified at trial was Andre Miller.)
At this evidentiary hearing, Clark testified that Rogers, the missing adverse witness, had told him that she was "going to go to California." According to Clark, Rogers did not leave a forwarding address and never contacted Clark or otherwise informed him of her whereabouts.
Detective Searles, an officer of the Columbus Police Department, testified that he had been the officer assigned to investigate the burglary. In his efforts to locate Rogers, he testified that he had contacted the person with whom she lived but was informed only that she had gone to California and left no forwarding address. Searles also testified that he contacted persons living in the neighborhood but no one was aware of her whereabouts. Finally, Searles testified that he contacted postal authorities but they were also unable to supply a forwarding address.
Based upon the evidence presented at the evidentiary hearing, the district court concluded that petitioner's Sixth Amendment claim was without merit. The court reasoned that, under applicable law, Mancusi v. Stubbs, 408 U.S. 204, 92 S.Ct. 2308, 33 L.Ed.2d 293 (1972). Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967), Barber v. Page, 390 U.S. 719, 88 S.Ct. 1318, 20 L.Ed.2d 255 (1960), there are two prerequisites, which the state satisfied in this case, to the introduction of prior recorded testimony of an absent witness: (1) the witness' "unavailability" at trial which includes a "good faith effort" by the prosecutorial authorities to obtain the witness' presence; and (2) whether there are sufficient "indicia of reliability" to afford the trier of facts a satisfactory basis for evaluating the truth of the prior statement which includes the adequacy of the cross examination opportunity afforded at either the prior hearing or the trial itself. The district court held that Detective Searles' efforts to locate Rogers satisfied the "good faith effort" requirement. With respect to the second requirement, which focuses upon the adequacy of prior cross examination opportunity, the district court held that this court's opinion in Havey v. Kropp, 458 F.2d 1054 (6th Cir. 1972) warranted finding the opportunity in this case sufficient. In Havey this Court held that while defense attorneys might not normally fully cross examine witnesses at preliminary hearings, the opportunity for unlimited cross examination does exist. Since this opportunity exists, defendants cannot later complain that they did not fully cross examine adverse witnesses at preliminary hearings who do not later appear for trial. The district court in this case recognized that the Supreme Court of Ohio had taken a contrary view from that of this Court in Havey. At the time of the district court's decision, the decision of the Ohio Supreme Court in State v. Roberts, 55 Ohio St.2d 191, 378 N.E.2d 492 (1978), was pending in the Supreme Court on a petition for writ of certiorari. In this posture, the district court followed Havey and dismissed petitioner's action for habeas corpus relief.
In Ohio v. Roberts, --- U.S. ----, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Supreme Court holds that
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