Olson v. Green
| Decision Date | 26 November 1980 |
| Docket Number | No. 3-80 Civil 356.,3-80 Civil 356. |
| Citation | 528 F. Supp. 27 |
| Parties | Dale Mathew OLSON, Petitioner, v. Les GREEN, Chairman of Minnesota Board of Corrections; Warren Spannaus, Attorney General, State of Minnesota; Thomas L. Johnson, Hennepin County Attorney, Respondents. |
| Court | U.S. District Court — District of Minnesota |
Delaney & Thompson, Ltd. by Peter J. Thompson and John W. Lundquist, Minneapolis, Minn., for petitioner.
Thomas L. Johnson, Hennepin County Atty. by Edward C. Anderson, Asst. County Atty., Minneapolis, Minn., for respondents.
This matter comes before the court upon the petition of Dale Mathew Olson for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (1980). On September 29, 1980, United States Magistrate George G. McPartlin issued his Recommendation that the petition be denied. Petitioner filed timely Exceptions to the Recommendation.
Petitioner was charged with three counts of murder in the first degree in connection with the deaths of Lueberta Davis and her two children on January 19, 1978. The matter was tried to a jury from May 1 to May 17, 1978 in Hennepin County District Court. A key witness, Jean Link, refused to testify at the trial because of threats made to her by James Black. During the trial, over objections by defense counsel on hearsay and Confrontation Clause grounds, Lieutenant Breen of the Minneapolis Police Department was permitted to relate the contents of statements Jean Link made to him on January 20 and January 23, 1978.
Lieutenant Breen testified that Ms. Link initially stated she was home watching television on the evening of January 19, 1978, and then stated that she was actually home listening to her stereo and reading a book that evening. Finally, Ms. Link stated that she had not been home but had followed the orders of James Black to pick up a man at Lyndale Avenue and Lake Street in Minneapolis, drive him to Lueberta Davis's house, wait for him outside, and then drive him where he wished to go. Ms. Link stated that the man was white, approximately six feet tall and 190 pounds, wearing a dark ski jacket and ski mask, blue jeans and brown leather gloves. She indicated that she waited for him outside of the Davis house for one-half hour and then gave him a ride back to the place where she had picked him up.
Upon further questioning, Ms. Link stated that she picked up the man at his home rather than on Lake Street, and she identified the man as Dale Olson.
Ms. Link also related that James Black had told her in December of 1977 that he "had to get rid of" Lueberta Davis because she had implicated him in a robbery. Ms. Link further indicated that in the first week of January, 1978, James Black had ordered her to buy gasoline and burn Lueberta Davis and her children to death, and that she had agreed to buy the gasoline but had refused to kill the Davises.
Ms. Link also stated that on January 17, 1978, James Black telephoned to tell her to be in the courtroom when Dale Olson was released from jail so that she could offer him a place to stay. According to her statements, she visited James Black in jail on January 19, 1978 and was told to take the gasoline she had bought, pick up Dale Olson, and drive to the Davis house. Ms. Link indicated that James Black did not tell her the purpose of the trip, but told her she "would be sorry" if she did not follow his instructions.
Ms. Link stated that she telephoned Dale Olson and obtained directions to his house, and that when she arrived at his house, he asked if she had the gasoline. During the drive to the Davis house, Ms. Link said Mr. Olson did not tell her what he planned to do at the Davis house but did ask if James Black was "a man of his word" who would keep his promise to give Mr. Olson $400 "for an apartment for himself and his girlfriend."
Ms. Link said she refused Dale Olson's request to accompany him into the Davis house, instead remaining in the car with the headlights off and the motor running. She stated that Mr. Olson pulled the ski mask over his face, took the gasoline from the trunk and entered the house. She indicated that she did not hear any explosions or see any flames coming from the house, but "thought" she "might have seen some kind of a flame on his leg" when Mr. Olson came running back to the car. According to her statements, Ms. Link saw no burns on Mr. Olson but noticed that his jacket was burned and was leaking feathers.
Ms. Link further stated that after leaving the Davis house, Dale Olson threw his jacket out of the car as she drove to an apartment in Anoka County.1 At the apartment, Ms. Link heard Mr. Olson tell a friend that he had burned his jacket when he went too close to a fire in which he was burning clothes that had been worn in a robbery.
At Mr. Olson's trial, defense counsel introduced part of the testimony given by Ms. Link at her trial for the murder of the Davises. This testimony was substantially similar to the statements given to Lieutenant Breen.
At her trial, Ms. Link testified that on January 9, 1978, James Black had twice requested that she hire someone to kill Lueberta Davis, and that she did not believe he was serious. She testified that on January 12, 1978, James Black had told her to buy some gasoline and to start a fire at the Davis house. She testified that she was told there would be someone in the closet at the Davis house to help her.
Ms. Link stated that she bought gasoline and went to the Davis house but left after she became worried that she was being "set up." She further testified that later that day a man entered her apartment, knocked her against a wall, slapped her, and told her that he had a message from James Black. The message was that Mr. Black did not want anyone hurt, but only wanted some clothes burned, and that if the man in her apartment had to return, it would be his "last trip." According to Ms. Link, James Black called the next day to say that he did not want to hurt anyone but only wanted some clothing burned.
Ms. Link testified that on January 19, 1980, James Black told her she "would be sorry" if she did not take the gasoline with her, pick up Dale Olson, and drive to the Davis house. She testified that when she picked up Mr. Olson at his house, he was wearing a ski mask, but she did not see him pull it over his face. She said that neither Mr. Black nor Mr. Olson told her what was to occur at the Davis house, that she assumed Mr. Olson would burn clothes, but wondered if that was all Mr. Olson was to do when Mr. Olson asked if James Black would give him $400 as promised. She testified that she refused to accompany Mr. Olson inside the house because she feared there was a "set up" to kill her.
According to Ms. Link's trial testimony, when Mr. Olson left the Davis house it "looked like a piece of his pants leg was on fire." She said they drove from the Davis house to an apartment in Anoka, stopping en route at a service station where Mr. Olson threw away his burned jacket.
Dale Olson was found guilty of three counts of murder in the first degree. On appeal, the Minnesota Supreme Court held that Mr. Olson's Confrontation Clause rights had not been violated by the admission into evidence of the statements made by Jean Link to police officers. State v. Olson, 291 N.W.2d 203 (Minn.1980). Mr. Olson subsequently filed a petition for a writ of habeas corpus, contending that the introduction of these statements violated his constitutional rights. In their "Answer to Writ of Habeas Corpus and Motion to Dismiss," respondents argue that: (1) Mr. Olson was not denied his right to confrontation and (2) in any event, Mr. Olson is precluded from raising a sixth amendment confrontation claim because of his actions and those of James Black. The court will examine these arguments in turn.
I. The United States Supreme Court recently clarified Confrontation Clause analysis. In Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980), the Court stated that:
When a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness. Id., at 2539.
The court finds that Ms. Link's statements at her trial bore adequate "indicia of reliability" to be admissible,2 and that — particularly in light of other strong evidence of petitioner's guilt — any error in admitting her similar statements to police officers was harmless beyond a reasonable doubt.3
Jean Link indisputably was unavailable. Her trial testimony was given under oath. The oath helps guarantee reliability, both by "impressing the witness with the seriousness of the matter and guarding against the lie by the possibility of a penalty for perjury." California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 1935, 26 L.Ed.2d 489 (1970). Moreover, Ms. Link was testifying in "proceedings conducted before a judicial tribunal, equipped to provide a judicial record of the hearings." Ohio v. Roberts, supra, 100 S.Ct., at 2540, quoting California v. Green, supra, 399 U.S. at 165, 90 S.Ct. at 1938 (1976). Finally, Ms. Link's cross-examination by the government's attorney:
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Muhammad v. Butler
...may operate as a waiver of his right to challenge the prosecution's use of other statements by that witness. Cf. Olson v. Green, 528 F.Supp. 27, 30 n. 2 (D.Minn.1980), aff'd, 668 F.2d 421 (8th Cir.), cert. denied, 456 U.S. 1009, 102 S.Ct. 2303, 73 L.Ed.2d 1305 (1982). No waiver issue is her......
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