Mann v. Gray

• Decision Date: 18 September 1985
• Docket Number: No. C84-3651-Y.,C84-3651-Y.
• Citation: 622 F. Supp. 1225
• Parties: Lewis H. MANN, Petitioner, v. Frank GRAY, Superintendent, Respondent.
• Court: U.S. District Court — Northern District of Ohio

622 F. Supp. 1225

Lewis H. MANN, Petitioner, v. Frank GRAY, Superintendent, Respondent.

No. C84-3651-Y.

United States District Court, N.D. Ohio, E.D.

August 26, 1985.

On Motion to Alter and Amend September 18, 1985.

Jill E. Stone, Asst. Public Defenders Comm., Columbus, Ohio, for petitioner.

Stuart A. Cole, Asst. Atty. Gen., Columbus, Ohio, for respondent.

ORDER

BATTISTI, Chief Judge.

Petitioner was convicted of aggravated burglary in violation of Ohio Revised Code § 2911.11(A)(3). His conviction was affirmed on appeal. On December 5, 1984, petitioner filed for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, alleging (1) denial of his Sixth Amendment right to confrontation for limitation of his cross-examination; (2) denial of his Fifth Amendment right to due process for improperly placing the burden of proof upon him and; (3) denial of due process for the trial court's failure to instruct the jury on a lesser included offense and; (4) denial of his Fifth Amendment right against self-incrimination through the use of a coerced confession.

On April 23, 1985, Magistrate Jack Streepy filed his Report and Recommended Decision hereinafter referred to as "Report" in which he found no constitutional violations as alleged by petitioner; the Magistrate recommended that the petition for writ of habeas corpus be denied. Petitioner filed objections on May 8, 1984, addressing only the confrontation and due process claims; the petitioner did not object to the Magistrate's finding that there was insufficient basis for the coerced confession claim. The Court will therefore examine the confrontation and due process claims addressed by the Magistrate and objected to by petitioner.

I. SIXTH AMENDMENT RIGHT TO CONFRONTATION/CROSS-EXAMINATION

At petitioner's trial, the prosecution called Jim Miller, who was at that time a 16 year old living in a group home run by the Ohio Youth Commission. Miller was in custody for his participation in the crime for which petitioner was being tried. When the defense sought to cross-examine Miller on his juvenile record, the trial court ruled that Miller could be cross-examined on "anything that he testified to here previously" or if "there were any promises made to him by the Prosecutor, the Judge, or anybody about the fact he is testifying here." Trial transcript at 65. hereinafter referred to as "Tr." The trial court specifically stated "there is no reason to allow cross-examination on a prior juvenile record ..." Tr. at 61, and distinguished the instant case from Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974).

At trial, on his state court appeal, and in the instant objections to the Magistrate's Report, petitioner relies on Davis and states that because he was denied the right to inquire into Miller's juvenile record, his right to confrontation was denied. Petitioner's theory was that since Miller was subject to criminal prosecution under Ohio Revised Code § 2151.26, he was biased in that "it was in his best interests to minimize his culpability and tailor his testimony to the state's version of the case." Petitioner's Objections at 4 hereinafter referred to as "Objections". The defense wanted to develop bias as a "basis for an inference of undue pressure because of Miller's vulnerable status as a probationer as well as Miller's possible concern that he might be tried as an adult." Objections at 4-5.

The Magistrate distinguished Davis from the instant case by noting that in Davis the juvenile delinquent's current probation status was completely foreclosed as an area for cross-examination whereas here petitioner was permitted to cross-examine Miller on his current custody status. Report at 2. The Magistrate found that foreclosing questioning of a witness on a prior finding of delinquency (for which he was neither in jail nor on probation) for the sole purpose of showing untruthfulness was not an unconstitutional limitation. Report at 3.

The Sixth Circuit has most recently discussed the right to cross examination in United States v. Touchstone, 726 F.2d 1116 (6th Cir.1984). In that case, the district court limited the cross-examination of a government witness who had been a participant in the defendant's criminal activity. The district court denied cross-examination into the witness' two prior homicides which were the basis of agreement the witness had made with state authorities; the defense sought to show the bias of the witness. The Sixth Circuit affirmed the trial court's limitation as not violating defendant's right to confrontation. The test enunciated was where a trial court has limited but not totally precluded cross-examination as to motive, "the issue is whether the jury was otherwise in possession of sufficient information concerning formative events to make a `discriminating appraisal' of a witness' motives and bias citations omitted." Id. at 1123.

In the instant case, the Court did not exclude information as to the witness' status or residence as the district court did in Alford v. United States, 282 U.S. 687, 51 S.Ct. 218, 75 L.Ed. 624 (1931). Hence, the questioning as to witness Miller's status could have suggested to the jury that the witness' testimony was given with some expectation of leniency or fear of prosecution.

It is important that this Court analyze Davis v. Alaska, 415 U.S. 308, 94 S.Ct. 1105, 39 L.Ed.2d 347 (1974), because of its centrality to Sixth Amendment jurisprudence regarding the right to cross-examination and petitioner's reliance on it in the instant case. In Davis, the defendant was charged with grand larceny and burglary. The prosecution called Richard Green who had seen the defendant near the burglary site and who picked the defendant out of a police lineup. The prosecution moved for a protective order to prevent any reference to Green's juvenile record in cross-examination. Green was on probation by order of a juvenile court for burglary. He was 16 years of age at the time he saw defendant but had turned 17 prior to trial.

In opposing the protective order, petitioner's counsel made it clear that he would not introduce Green's juvenile adjudication as a general impeachment of Green's character as a truthful person but, rather, to show specifically that at the same time Green was assisting the police in identifying petitioner he was on probation for burglary. From this petitioner would seek to show—or at least argue—that Green acted out of fear or concern of possible jeopardy to his probation. Not only might Green have made a hasty and faulty identification of petitioner to shift suspicion away from himself as one who robbed the bar, but Green might have been subject to undue pressure from the police and made his identifications under fear of possible probation revocation. Green's record would be revealed only as necessary to probe Green for bias and prejudice and not generally to call Green's good character into question."

Id. at 311, 94 S.Ct. at 1108.

The trial court, citing an Alaska statute making the juvenile delinquency record inadmissible, granted the protective order and the Alaska Supreme Court affirmed on the ground that defense counsel had been given adequate opportunity to question the witness concerning the possibility of bias or motive. Id. at 314-15, 94 S.Ct. at 1109.

The Supreme Court reversed the conviction on the ground that defendant Davis was not able to adequately and properly develop the bias issue for the jury.

While counsel was permitted to ask Green whether he was biased, counsel was unable to make a record from which to argue why Green might have been biased or otherwise lacked that degree of impartiality expected of a witness at trial. On the basis of the limited cross-examination that was permitted, the jury might well have thought that defense counsel was engaged in a speculative and baseless line of attack on the credibility of an apparently blameless witness or, as the prosecutor's objection put it, a "rehash" of prior cross-examination. On these facts it seems clear to us that to make any such inquiry effective, defense counsel should have been permitted to expose to the jury the facts from which jurors, as the sole triers of fact and credibility, could appropriately draw inferences relating to the reliability of the witness.

The thrust of Davis is that the defendant should have been permitted to establish that the witness was on probation. There is no indication that cross-examination about prior offenses is required. In the instant case since there had been direct testimony that witness Miller was in the custody of the Ohio Youth Commission, Tr. at 40, and that he had participated in the burglary with defendant Mann, Tr. at 43, the defense had sufficient basis to cross-examine Miller on his current status and concern for leniency in subsequent prosecutions. Furthermore, the trial court permitted cross-examination on the circumstances of witness Miller's appearance and any deals he may have struck. Hence, unlike Davis where no testimony was permitted on the witness' current status, in the instant case such questioning was permitted. Hence, under Davis and the Sixth circuit's Touchstone test, this Court concludes the jury had sufficient information before it, namely Miller's custody status, his age and the possibility of an agreement with the prosecution, to make a "discriminating appraisal" of his motives and bias. The Magistrate was correct in finding that the defense does not have a constitutional right to inquire into prior findings of juvenile delinquency. Accordingly, there is no violation of the Sixth Amendment right to confrontation.

II. DUE PROCESS—BURDEN OF PROOF

Petitioner contends his right to due process of law was violated when the trial judge instructed the jury that the defendant/petitioner had the burden of proving by a preponderance of the evidence that he was intoxicated to the extent that he could not have formed the requisite criminal intent. The...