Marsh v. Richardson, 84-1777

Decision Date23 January 1986
Docket NumberNo. 84-1777,84-1777
Citation781 F.2d 1201
PartiesClarissa MARSH, Petitioner-Appellant, v. Gloria RICHARDSON, Respondent-Appellee.
CourtU.S. Court of Appeals — Sixth Circuit

R. Steven Whalen (argued), Detroit, Mich., for petitioner-appellant.

Andrea L. Solak (argued), Detroit, Mich., for respondent-appellee.

Before MERRITT and CONTIE, Circuit Judges, and CELEBREZZE, Senior Circuit Judge.

CONTIE, Circuit Judge.

Clarissa Marsh appeals from an order of the district court denying her petition for a writ of habeas corpus in which she alleged that her convictions for felony murder and assault with intent to murder were not supported by sufficient evidence and that introduction of the statement of her non-testifying co-defendant violated her right of confrontation guaranteed by the Sixth Amendment. Finding that the convictions were obtained in violation of the Constitution, we reverse the judgment of the district court and remand with instructions to grant the writ. 1

I.

Petitioner Marsh was tried jointly with her co-defendant Benjamin Williams pursuant to an information charging her with the felony murder of Ollie Scott and Koran Knighton in the perpetration of a robbery pursuant to Mich.Comp.Laws Ann. Sec. 750.316 and with assault of Cynthia Knighton with intent to murder pursuant to Mich.Comp.Laws Ann. Sec. 750.83.

Cynthia Knighton testified that on October 29, 1978, she went with her son to the house of her aunt, Ollie Scott. Knighton was upstairs with her son when she heard voices downstairs, and came downstairs and saw Martin, Marsh's boyfriend, and Marsh. Scott introduced Knighton to Marsh, they all sat down and conversed, and Marsh said she had come to pick something up. Martin pulled out a gun, pointed it at them, and said "someone had gotten killed and that my aunt knew something about it." Marsh said something similar, and walked over to the front door. Martin grabbed Scott, and Marsh looked out the peephole. The doorbell rang and Marsh let in defendant Williams, holding a handgun. Williams said "I'm so-and-so's brother," and "[w]here's the money?" Martin took Scott upstairs, and Williams walked through the lower level of the house, at which time Knighton attempted to flee through the front door. Marsh grabbed her and held her until Williams returned, whereupon he told the Knightons to lay on the floor. Williams went upstairs and Marsh refused to give Knighton a drink of water, but looked out the peephole. When the three came downstairs, Martin gave Marsh a paper grocery bag. Martin took Scott to the basement and Williams took the Knightons into the basement. Williams said "Hurry up and tie them up," and Martin said "We're going to have to hurt them." Knighton heard two shots. Then Martin, holding a blanket in front of his gun, shot Knighton three times. Thereafter, she telephoned the police.

Defendant Marsh objected at trial to the introduction of Williams' statement to the police even after the references to Marsh had been deleted: "[T]here are certain inferences that are raised by this statement even in its altered form that would tend to incriminate my client." The court overruled petitioner's objection and allowed introduction of Williams' statement as follows:

On Sunday evening, October the 29th, 1978, at about 6:30 p.m., I was over to my girl friend's house at 237 Moss, Highland Park, when I received a phone call from a friend of mine named Kareem Martin. He said he had been looking for me and James Coleman, who I call Tom. He asked me if I wanted to go on a robbery with him. I said okay. Then he said he'd be by and pick me up. About 15 or 20 minutes later Kareem came by in his black Monte Carlo car. I got in the car and Kareem told me he was going to stick up this crib, told me the place was a numbers house. Kareem said there would be over $5000 or $10,000 in the place. Kareem said he would have to take them out after the robbery. Kareem had a big silver gun. He gave me a long barrelled .22 revolver. We then drove over to this house and parked the car across the big street near the house. The plan was that I would wait in the car in front of the house and then I would move the car down across the big street because he didn't want anybody to see the car. Okay, Kareem went up to the house and went inside. A couple of minutes later I moved the car and went up to the house. As I entered, Kareem and this older lady were in the diningroom, a little boy and another younger woman were sitting on the couch in the front room. I pulled my pistol and told the younger woman and the little boy to lay on the floor. Kareem took the older lady upstairs. He had a pistol, also. I stayed downstairs with the two people on the floor. After Kareem took the lady upstairs I went upstairs and the lady was laying on the bed in the room to the left as you get up the stairs. The lady had already given us two bags full of money before we even got upstairs. Kareem had thought she had more money and that's why we had went upstairs. Me and Kareem started searching the rooms but I didn't find any money. I came downstairs and then Kareem came down with the lady. I said, "Let's go, let's go." Kareem said no. Kareem then took the two ladies and little boy down the basement and that's when I left to go to the car. I went to the car and got in the back seat. A couple of minutes later Kareem came to the car and said he thinks that the girl was still living because she was still moving and he didn't have any more bullets. He asked me how come I didn't go down the basement and I said I wasn't doing no shit like that. He then dropped me back off at my girl's house in Highland Park and I was supposed to get together with him today, get my share of the robbery after he had counted the money. That's all.

(Emphasis added). The court delivered the following instruction to the jury.

The statement of co-defendant Williams has been admitted into evidence against him only. I caution you that it may be used in considering only the guilt or innocence of Defendant Benjamin Williams. Under the rules already given to you, it must not be used or considered in any way against Defendant Clarissa Marsh.

Marsh testified that she met Martin in 1977 and had a relationship with him. Marsh testified that she often borrowed money so that Martin could purchase drugs. Martin lived in Marsh's house and refused to leave at her direction. Martin physically abused Marsh and in June 1978 she was hospitalized following a suicide attempt. Marsh worked with and borrowed money from Ollie Scott in the summer of 1978.

On October 29, 1978, Marsh lost her wallet with Martin's drug money at Eastland Shopping Center. Martin was upset and suggested that Marsh borrow money from Scott. After dropping her children off at a Halloween party, Marsh and Martin picked up Williams. Petitioner stated that during the drive to Scott's house, she heard no conversation about a robbery. Martin and Marsh went to Scott's house where Marsh asked for a loan. Martin pulled a gun out and Marsh walked over to the door. Marsh testified that she looked out the door to see where the car was, that she did not feel free to leave, and that she opened the door to let Williams in. Marsh testified that she did not try to escape because she was scared and Marsh admitted that she blocked Knighton's attempt to escape but does not know why or what happened. Martin came downstairs and handed Marsh a bag. Marsh testified that she never heard anything said about anyone being hurt, shot or killed. After Martin, Williams and the victims went into the basement, Marsh left the house without the bag. Marsh testified that she never intended to rob or kill anyone, and that she did not know that anyone was armed.

In closing argument, the prosecutor noted:

[T]he same law that applies to Mr. Williams applies to Clarissa Marsh as well. The People must prove the same elements that I talked about in my discussion about Mr. Williams. Her guilt, of course, is to be determined separately from the evidence but you may consider the same evidence that you heard from the witness stand. The only thing that the Court will instruct you that you cannot consider is that statement that was made by the Defendant Williams. You cannot consider that statement when you determine her guilt or innocence. To do so would be unfair.

Further,

[i]t's important in light of her testimony when she says Kareem drives over to Benjamin Williams' home and picks him up to go over. What's the thing that she says? "Well, I'm sitting in the back seat of the car." "Did you hear any conversation that was going on in the front seat between Kareem and Mr. Williams?" "No, couldn't hear any conversation. The radio was too loud." I asked you whether that is reasonable. Why did she say that? Why did she say she couldn't hear any conversation? She said, "I know they were having conversation but I couldn't hear it because of the radio." Because if she admits that she heard the conversation and she admits to the plan, she's guilty of at least armed robbery. So she can't tell you that. How else do you know that she planned the robbery and was guilty of First Degree Felony Murder as well as the robbery?

(Emphasis added). Further, "Clarissa Marsh was in the planning stages of the robbery." Defense counsel argued that "[y]ou never heard anything about anyone saying anything in her presence about hurting anyone." In its instructions to the jury, the court repeated its instruction limiting the admissibility of the Williams statement.

On April 23, 1979, Williams and Marsh were convicted on all counts. On May 2, Marsh was sentenced to life imprisonment on the first and second counts and 60 to 90 years on the third count. On December 17, 1980, the Michigan Court of Appeals affirmed the convictions. The court held that the trial court had applied the wrong standard in assessing the motion for directed verdict, but that the...

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