Mayes v. Sowders

• Decision Date: 03 June 1980
• Docket Number: 79-3710,Nos. 79-3709,s. 79-3709
• Citation: 621 F.2d 850
• Parties: Curtis Lee MAYES, Petitioner-Appellant, Cross-Appellee, v. Dewey SOWDERS, Warden, Respondent-Appellee, Cross-Appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 850

621 F.2d 850

Curtis Lee MAYES, Petitioner-Appellant, Cross-Appellee, v. Dewey SOWDERS, Warden, Respondent-Appellee, Cross-Appellant.

Nos. 79-3709, 79-3710.

United States Court of Appeals, Sixth Circuit.

Argued April 14, 1980.

Decided June 3, 1980.

Frank W. Heft, Jr., Chief App. Defender of the Jefferson Dist. Public Defender, Louisville, Ky., for petitioner-appellant, cross-appellee.

Robert Stephens, Atty. Gen., Frankfort, Ky., for respondent-appellee, cross-appellant.

Before WEICK, Circuit Judge, and PHILLIPS and PECK, Senior Circuit Judges.

WEICK, Circuit Judge.

The Commonwealth of Kentucky has appealed from an order of the District Court granting a writ of habeas corpus to the petitioner, Curtis Lee Mayes, with respect to two murder convictions in its courts. The petitioner has appealed from the denial to him of a writ of habeas corpus by the same District Court with respect to two robbery convictions which were involved in the murders.

Curtis Lee Mayes was convicted by a jury in the Jefferson County, Kentucky, Circuit Court, Criminal Division on two counts of murder and two counts of robbery. The jury imposed consecutive sentences of life for the two murders, 12 1/2 years for the first robbery conviction, and 20 years for the second robbery count. Judgment thereon was entered by the trial judge. ¹ The petitioner appealed his convictions to the Supreme Court of Kentucky raising several issues including the Confrontation Clause issue which is presently before this court. The Supreme Court of Kentucky affirmed the petitioner's convictions in Mayes v. Commonwealth, 563 S.W.2d 4 (Ky.1978). An application for a writ of habeas corpus was subsequently filed in the United States District Court for the Western District of Kentucky alleging that the introduction of hearsay evidence at the petitioner's trial violated his rights under the Confrontation Clause of the United States Constitution. The District Judge granted the writ of habeas corpus as to the two murder convictions but denied the writ with respect to the robbery convictions. We agree with the District Court that the petitioner's constitutional rights were violated and that the writ of habeas corpus should be issued on the first murder conviction which arose out of the robbery of the Standard Gasoline Service Station. We hold that the error was harmless beyond a reasonable doubt with respect to the second murder conviction arising out of the jewelry store robbery and the two robbery convictions because of petitioner's confessions and other overwhelming evidence.

I

On August 1, 1976, at between 1:00 a. m. and 4:00 a. m., Duncan's Standard Service Station was robbed of $147.62. The gasoline service station attendant, Charles Ferguson, was found shot to death in the restroom of the service station. Death was caused by two bullet wounds to the head. Eight days later, on August 9, 1976, Hannah Jewelers store was robbed of approximately $5600 of jewelry. Shortly after the robbery, Mrs. Grace Noble, a 51-year-old part-time employee who was temporarily in charge of the store, was found stabbed to death in a bathroom off of a back room in the jewelry store. Mrs. Noble had been stabbed 13 times, at least two of the blows being potentially fatal.

Acting on an informer's tip, Sergeant Spellman of the Jefferson County Police Department, picked up Curtis Mayes for questioning. Mayes confessed to his participation in the two robberies along with his cousin, Leslie Beecham, but denied doing the actual shooting or stabbing. Mayes cooperated with the police by leading them to a sewer where the police found a hunting knife with traces of blood on it in a bag with tags which had been removed from the stolen jewelry. The knife fit perfectly into a sheath which was found under Mrs. Noble's right foot. Mayes also identified himself and Leslie Beecham as the two men shown (from shoulders to feet) in a picture taken by a hidden camera in the jewelry store. Mayes and several police officers went to a house where Mayes and Beecham lived with several other relatives. Mayes spoke with his mother and retrieved for the officers the clothing which he and Beecham had worn during the jewelry store robbery. Beecham's shirt had traces of human blood on it while Mayes' clothing did not.

Beecham, who was five years older than Mayes, was subsequently picked up by the police. Beecham also admitted committing the robberies, but claimed that Mayes had done the killings. After the indictment in the Circuit Court charging Mayes and Beecham as co-defendants had been read to the jury, Beecham agreed to and did enter a plea of guilty to both the robberies and the murders in return for the dismissal of some unrelated charges pending against him and a recommendation of the prosecutor of a 90 year fixed sentence. Beecham's attorney also informed Beecham that he would not have to testify against Mayes. At the time the guilty plea was entered, Beecham denied that he had killed anyone but indicated that he was pleading guilty on the murder counts in accordance with North Carolina v. Alford, 400 U.S. 25, 91 S.Ct. 160, 27 L.Ed.2d 162 (1970). Beecham's sentencing was deferred until after Mayes' trial.

At trial, the prosecution called Beecham as a witness. Beecham gave his name and address, answered two questions put to him by the prosecutor in the negative, and thereafter refused to testify further despite a conference in the Judge's chambers and ultimately a contempt citation by the Court. ² The State concedes that Beecham neither admitted nor denied making any statements to any police officers. One of the questions which Beecham did answer was:

Q. (By the prosecutor): Mr. Beecham I would like to direct your attention back to the early morning of August 1st of 1976: Were you present between the hours of 1:00 in the morning and 4:00 in the morning at the Duncan Standard Service Station?

A. (By Beecham): No, I wasn't.

After Beecham left the stand, the prosecutor was permitted, over the objections of defense counsel, to recall Sergeant Spellman to the stand to testify as to a "prior inconsistent statement" of Beecham. Sergeant Spellman testified that Beecham had told him: "I was with him at the Duncan Standard Service Station but he, meaning defendant, Curtis Mayes, did the killing." Not only does this statement go far beyond the bounds of a "prior inconsistent statement," but, as the State conceded at oral argument before this Court, this statement was the only evidence that Mayes rather than Beecham had actually killed anyone.

In affirming the convictions, the Supreme Court of Kentucky did not rely on the trial court's prior inconsistent statement theory, instead it found that the statement was admissible as substantive evidence under its holding in Jett v. Commonwealth, 436 S.W.2d 788 (Ky.1969). The Jett case held:

The result is that an out-of-court statement made by any person who appears as a witness, which statement is material and relevant to the issues of the case, may be received as substantive evidence through the testimony of another witness, and need not be limited to impeachment purposes. CR 43.07 therefore does not apply, though we are of the further opinion that the same type of foundation must be laid as required by CR 43.08 in order that the witness whose testimony is to be contradicted, supplemented, or otherwise affected by the out-of-court statement may have a proper and timely opportunity to give his version or explanation of it. The same rule shall apply regardless of whether the witness whose out-of-court statement is to be proved appears as a witness for the party who intends to prove it, or as a witness for the adversary party. (Jett, supra, 436 S.W.2d at 792).

The Jett rule as stated above presents no Confrontation Clause issues since it clearly contemplates that the declarant of the hearsay statement will testify at trial and be subject to full and effective cross-examination about the statement and its contents. See, California v. Green, 399 U.S. 149, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970).

The Supreme Court of Kentucky found that the petitioner had had a full and effective opportunity for cross-examination of Beecham. The District Court strongly disagreed, holding:

In the instant case, Beecham, by his own conduct, made it impossible to inquire as to whether or not the statement which he had allegedly made to Officer Spellman was, in fact, made by him, and further, made it possible for trial counsel for petitioner to examine him concerning the accuracy of the statements made to the officer.

The respondent contends that petitioner was given the opportunity to cross-examine Beecham. That opportunity could be of little comfort to him where the reality was that Beecham had taken the position that he would not answer any further questions concerning the alleged crime. As the Supreme Court pointed out in Douglas, supra, effective confrontation of a witness is possible only if he affirms the statement was his own.

The Court holds that the inability of petitioner to effectively cross-examine Beecham arises from the unusual sequence of events which occurred at the trial. First, we have Beecham making two exculpatory statements. Then we have him refusing to answer any other questions propounded to him by the prosecution. We then find the trial judge making a valiant effort to coerce Beecham to testify, which failed. We also find the trial judge tendering to petitioner the right to cross-examine Beecham. The problem with this procedure is two-fold as noted above. First Beecham had made no statements which petitioner, on cross-examination, would wish to dispute. Second, Beecham had not admitted or denied making any statement to Spellman and, therefore, there was no occasion to cross-examine him concerning the matter.

In addition to Beecham's refusal to testify (and because of it) the ability of defense counsel to cross-examine Beecham was limited by several rulings...