Peak v. Webb
| Decision Date | 14 March 2012 |
| Docket Number | No. 09–5977.,09–5977. |
| Citation | 673 F.3d 465 |
| Parties | Michael Anthony PEAK, Petitioner–Appellant, v. Patti WEBB, Respondent–Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
OPINION TEXT STARTS HERE
ARGUED: Howard J.C. Nicols, Squire, Sanders & Dempsey (US) LLP, Cleveland, Ohio, for Appellant. Todd D. Ferguson, Office of the Kentucky Attorney General, Frankfort, Kentucky, for Appellee. ON BRIEF: Howard J.C. Nicols, Steven A. Delchin, Squire, Sanders & Dempsey (US) LLP, Cleveland, Ohio, for Appellant. Todd D. Ferguson, Office of the Kentucky Attorney General, Frankfort, Kentucky, for Appellee. Michael Anthony Peak, Central City, Kentucky, pro se.
Before: MERRITT, BOGGS, and CLAY, Circuit Judges.
BOGGS, J., delivered the opinion of the court, in which MERRITT, J., joined, with MERRITT, J. (pp. 474–75), also delivering a separate concurring opinion. CLAY, J. (pp. 475–87), delivered a separate dissenting opinion.
Michael Peak, convicted of first-degree murder and sentenced to life in prison, petitioned the United States District Court for a writ of habeas corpus. He argued that his Confrontation Clause rights had been violated at trial when the government played a tape recording of his co-defendant's custodial statement without affirmatively calling the co-defendant as a witness, over Peak's objection. The court denied the petition, and Peak now appeals that denial. Though the trial court may well have violated Peak's constitutional rights when it failed to sustain his objection, we cannot say, as the Supreme Court now requires, that fairminded jurists could not disagree with our opinion when the co-defendant was in the courtroom and available to testify and be (cross-) examined. In fact, four such fairminded justices of the Kentucky Supreme Court did disagree. Therefore, we are compelled to AFFIRM.
In 2002, Leann Bearden, Patrick Meeks, and Michael Peak were charged with murdering, robbing, and conspiring to murder an unidentified person. Peak v. Kentucky, 197 S.W.3d 536, 541 (Ky.2006).1 The investigation of Peak, Meeks, and Bearden began when Bearden told Charles Mackem, a man to whom she sold cocaine, that she had been involved in a murder. Mackem told the story to police in exchange for immunity from prosecution.
The case was notable for its lack of physical evidence or witnesses. No blood or fingerprints were found at the scene. The murder weapon was never found. The only witnesses were the three co-conspirators themselves. Of the three, only Bearden testified. Her testimony was the version of the facts primarily relied upon at trial.2
According to Bearden's testimony at trial, she met the victim, whom she only knew as “Mike,” at a social occasion in Louisville, where they used cocaine together. At another social event, Mike told Bearden that he wanted to sell a kilo of cocaine. After learning that Mike was trying to sell a kilogram of cocaine, Peak, Meeks, and Bearden conspired to kill Mike in order to take the cocaine.3 Peak allegedly said to Meeks, “Yeah, you get the gun and I'll do the shooting.” She testified that the next night she saw Meeks give Peak a gun. Bearden testified that at that point, she worried that the men were actually planning to kill Mike.
The next night, two nights after the three had first discussed killing the victim, Bearden, Peak, and Meeks drove to a farmhouse together.4 Meeks told Bearden to call Mike and tell him there was a buyer for the cocaine. Bearden testified that she thought Meeks also had a gun at this point, so that both men were armed. She testified that Peak told her, “When you walk in and Mike's behind you, you better get out of the way or you're going to get shot yourself.” Bearden testified that when she, Meeks, and the victim arrived at the farmhouse she went inside, hoping to find a way out of the house so that she could escape. She testified that no one was right behind her, but that she believed Mike came in next, and that Meeks did not come in the house. She stated that she did not see Peak when she went into the house. She stated that she “wound up” walking into a bathroom and was trying to open a window in the bathroom when she heard two shots. She testified that she heard Peak cursing and then calling for Meeks, yelling: “He's not dead, he's still standing, and he's coming towards me.” She then left the bathroom, and ran into Peak, who said: “Get Meeks and get him in here.”
Bearden further testified that when it was getting light out, hours later, Meeks came outside and told her to come in to help clean up blood. She testified that she saw blood “everywhere” but that she did not see Mike's body. Bearden testified that, when they were finished cleaning, they drove out into the country and Peak got out of the car to throw out the gun. However, Bearden stated that she did not see the gun at any point. She merely stated that Peak said: “We need to get rid of the gun.”
Later in her testimony, Bearden talked about telling the police “everything” as soon as they showed her photos of Peak and Meeks at an initial questioning. She took them to where the gun had allegedly been discarded and to the farmhouse, which had been “burnt.” In her testimony, Bearden verified that she had signed a deal with prosecutors that if she testified truthfully they would not seek the death penalty against her.
After direct examination of Bearden, Peak's attorney moved for severance and a mistrial, because Bearden was “wearing two hats,” as she was serving as both a defendant and as a witness for the prosecution, and because she had been allowed to be in the courtroom during the prosecution's opening statement, which gave her “the benefit of hearing him characterize her testimony immediately before getting on the witness stand.” Meeks also moved for severance of the trials. These motions were denied.
During cross-examination, Bearden was demonstrated to be a witness with somewhat less than sterling credibility. She agreed that she was a drug dealer. She was impeached with contradictory statements that she had made about being frightened primarily of Meeks, not of Peak. She admitted that she did not actually see the gun, when she had said initially that Meeks gave Peak the gun. She stated she never saw blood on Peak or Meeks after the killing. She also stated that she became pregnant with Peak's child and had an abortion. Finally, Bearden admitted that she had failed a polygraph exam that she took while imprisoned.
The only direct evidence establishing Peak as the shooter in this murder came from Meeks's unsworn taped confession.5 This confession was undisputedly made to police while Meeks was in custody, after his arrest. At trial, Meeks asserted his Fifth Amendment right not to incriminate himself. Because the state wanted to play his taped interrogation, it created a redacted version to skirt the statements that would violate Meeks's right against self-incrimination. However, Meeks thought this version made him appear even more to have been the shooter. Because he did not want this redacted version to be played, Meeks waived his Fifth Amendment rights so the state could play the unredacted tape. Meeks was available to be called as a witness at trial. Peak had not had any prior opportunity to cross-examine Meeks.
Peak objected to the government's introduction of Meeks's taped confession, arguing that playing the tape without calling Meeks to the stand at the same time violated Peak's Sixth Amendment right to confront the witnesses against him. He also moved for a mistrial. His objections were overruled. In overruling his objections, the court stated that any party could now call Meeks, as his Fifth Amendment rights had been waived.
The forty-five-minute tape was then played, during the testimony of Detective Griffin of the Kentucky State Police, who had arrested Meeks. On the tape, Meeks stated that Peak was the shooter. Meeks's statement was played twice more during trial: during the government's closing argument, and, at the jury's request, during deliberations. The tape stated in relevant part:
[Mike, Leann, and I] [w]alked in the door [of the house where the victim was killed]. Next thing I know Leanne [sic]—Tony—Tony jumped out from a doorway [,] pulled a gun[,] and Leanne screamed, ran. I heard a gunshot. I ran. We both ran outside. I heard more gun shots. I came back inside, found the individual laying on the ground face down on the ground in a pool of blood with Tony standing pretty much over top [sic] of him hollering and screaming. Then I proceeded to go back outside because I heard Leanne scream. I went outside. She was screaming, freaking out. I go back inside. Tony's pretty much freaking out ... over what he's done. And then ... worried about where the drugs are. Finds the drugs. Gets in Leanne's car. Drives it past the river. Throws the gun in the river.6
Meeks also stated, “I didn't kill anybody” and “I thought the gun was for Tony's protection.”
At the end of the trial, the jury convicted Peak of intentional murder, first-degree robbery, conspiracy to commit murder, and tampering with physical evidence. He was sentenced to life in prison without the possibility of probation or parole for twenty-five years. Meeks was convicted of wanton murder, first-degree robbery, conspiracy to commit murder, and tampering with physical evidence. He was sentenced to life in prison without the possibility of probation or parole for twenty-five years. Peak, 197 S.W.3d at 540. Bearden pleaded guilty to murder, robbery, and conspiracy and received a twenty-year sentence.
Peak appealed his conviction. His appeal was consolidated with Meeks's. Ibid. A majority of the Kentucky Supreme Court, comprised of four justices, affirmed Peak's conviction, but only a three-justice plurality joined the opinion.7 The plurality reasoned that the Confrontation Clause does not bar a...
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