Poole v. Perini

• Decision Date: 18 September 1981
• Docket Number: No. 80-3711,80-3711
• Citation: 659 F.2d 730
• Parties: Tobias Q. POOLE, Petitioner-Appellant, v. E. P. PERINI, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 730

659 F.2d 730

Tobias Q. POOLE, Petitioner-Appellant, v. E. P. PERINI, Respondent-Appellee.

No. 80-3711.

United States Court of Appeals, Sixth Circuit.

Argued June 3, 1981.

Decided Sept. 18, 1981.

Tobias Q. Poole, pro se.

Kenneth L. Gibson, Cuyahoga Falls, Ohio (Court-appointed) (CJA), for petitioner-appellant.

Randall G. Burnworth, Asst. Atty. Gen., Richard Drake, Asst. Atty. Gen., Columbus, Ohio, for respondent-appellee.

Before LIVELY, MERRITT and KENNEDY, Circuit Judges.

CORNELIA G. KENNEDY, Circuit Judge.

Appellant, convicted by a jury of aggravated burglary in an Ohio Court, appeals the denial of his petition for writ of habeas corpus. He asserts that the District Court erred in rejecting his four grounds for habeas relief.

He argues: (1) that his right of confrontation protected by the sixth amendment was violated when testimony about the out-of-court statements of two alleged accomplices, Sammy Higgins and Ricky Robinson, was admitted into evidence; (2) that he was denied due process and a fair trial when results of a polygraph examination he took were admitted into evidence; (3) that the evidence was not sufficient to support a verdict; and (4) that he was denied the effective assistance of counsel.

Appellant objected to the admission of the statements of the alleged accomplices and to the admission of the polygraph evidence during trial. The first three of his arguments were presented to the Ohio Court of Appeals on direct appeal and were rejected. A post-conviction motion was filed in state court to challenge the effectiveness of counsel and a hearing was held. The state court found that counsel gave effective assistance. Appellant's motion for leave to appeal to the Ohio Supreme Court was denied. Thus, appellant has exhausted his state remedies and is not barred from making the arguments because of a contemporaneous objection rule. See Wainwright v. Sykes, 433 U.S. 72, 97 S.Ct. 2497, 53 L.Ed.2d 594 (1977).

Statements of Alleged Accomplices

The State of Ohio claims that appellant drove the "get-away" car for his two accomplices, Higgins and Robinson. Robinson made one confession and implicated appellant. Higgins made two confessions; the first made no mention of appellant, the second implicated appellant. These confessions were recorded. Portions of the tapes were played for appellant by Detective Cross who testified that after listening to them appellant said "Yes, that's true." Appellant who testified on his own behalf admitted listening to portions of the tapes but denied saying that the statements on the tapes were true. The tapes themselves were not played at trial because of references to inadmissible matters, apparently other crimes. Instead, Detective Cross testified as to the contents of the tapes. The substitution of Cross' testimony for the tapes themselves was agreed to by appellant and is not objected to here. Counsel for appellant did, however, vigorously object to the introduction of the contents of the tapes, through the substitute testimony of Cross, as hearsay, since neither declarant was put on the witness stand for cross-examination.

The District Court held that appellant had adopted the statements of Higgins and Robinson and as adoptive confessions they were not hearsay. Appellant does not argue that he adopted the confessions involuntarily he claims he did not adopt them at all. Appellant further objects that he only heard a portion of the tapes, not the entire tapes. Detective Cross testified as to what was on the tapes without limiting his testimony to the portions that appellant heard.

The admission of an out-of-court confession of a non-testifying co-defendant which implicates the defendant violates the defendant's right of confrontation despite a cautionary instruction to the jury that the confession is not evidence against the defendant. See Bruton v. United States, 391 U.S. 123, 126, 88 S.Ct. 1620, 1622, 20 L.Ed.2d 476 (1968); Mayes v. Sowders, 621 F.2d 850, 856 (6th Cir.), cert. denied, --- U.S. ----, 101 S.Ct. 324, 66 L.Ed.2d 151 (1980); Hodges v. Rose, 570 F.2d 643, 646-47 (6th Cir.), cert. denied, 436 U.S. 909, 98 S.Ct. 2243, 56 L.Ed.2d 408 (1978). Admission of other forms of hearsay may also violate the confrontation clause if the defendant has no opportunity to cross-examine the declarant. See Phillips v. Neil, 452 F.2d 337, 347-49 (6th Cir. 1971), cert. denied, 409 U.S. 884, 93 S.Ct. 96, 34 L.Ed.2d 141 (1972) (medical records which had conclusions about defendant's sanity were inadmissible).

The right to confront the witnesses against one is not violated every time hearsay evidence is admitted without an opportunity to cross-examine the declarant. See Bruton, supra, 391 U.S. at 135-36, 88 S.Ct. at 1627-28; Hodges, supra, 570 F.2d at 646. The out-of-court statement must clearly implicate the defendant and create a substantial risk that the jury looked to the incriminating extrajudicial statements in determining guilt. See Bruton, supra, 391 U.S. at 126, 88 S.Ct. at 1622; United States v. Marks, 585 F.2d 164, 168 (6th Cir. 1978). This Court must examine whether the hearsay statement has any special indicia of reliability which would justify an exception to the requirement of cross-examination. See Mayes, supra, 621 F.2d at 856; Phillips, supra, 452 F.2d at 348.

That the lack of cross-examination does not necessarily violate the sixth amendment is demonstrated by the result of the recent Supreme Court case, Parker v. Randolph, 442 U.S. 62, 99 S.Ct. 2132, 60 L.Ed.2d 713 (1979). There the Court considered the admission of interlocking confessions of the defendant and his co-defendant in a joint trial. The jury had been instructed to consider the co-defendant's hearsay statement only against its source and not as evidence against the defendant. The plurality opinion, written by Justice Rehnquist, held that the confrontation right was not violated by the introduction of interlocking confessions. The damage to the defendant from a non-testifying co-defendant was negligible when the defendant's own confession was introduced. The co-defendant's confession was not any more damaging than the defendant's own. The cautionary instruction, the plurality held, was sufficient protection. Justice Blackmun, concurring, would not adopt a per se rule regarding interlocking confessions. Justice Blackmun instead would have found harmless error, if error there be.

In the present case, appellant had no opportunity to cross-examine his alleged accomplices. That alone does not indicate his right to confront the witnesses against him was violated. This Court must determine what special indicia of reliability are present in this case and, if insufficient, whether any error in admitting the evidence was harmless.

The District Court found a special indicium of reliability because the out-of-court statements were adopted by the appellant. An adoptive confession avoids the confrontation problem because the words of the hearsay become the words of the defendant. If the defendant accepts the out-of-court statement as his own, cross-examination of the declarant of the hearsay becomes unnecessary and irrelevant. The out-of-court statement is no more damaging than the defendant's own. Though not a common issue in the courts, this Court and others have held admissions of adoptive confessions to be proper and rejected challenges based upon the confrontation clause, although the voluntariness of the ratification may still be questioned. See Miller v. Cardwell, 448 F.2d 186, 193-196 (6th Cir. 1971), cert. denied, 405 U.S. 1033, 92 S.Ct. 1295, 31 L.Ed.2d 490 (1972) (no objection made to voluntariness of ratification); Shiflett v. Commonwealth of Virginia, 447 F.2d 50, 58 (4th Cir. 1971) (en banc), cert. denied, 405 U.S. 994, 92 S.Ct. 1267, 31 L.Ed.2d 462 (1972); United States ex rel Cheeks v. Russell, 424 F.2d 647, 653 (3d Cir. 1970), cert. denied, 400 U.S. 994, 91 S.Ct. 465, 27 L.Ed.2d 442 (1971); Oaks v. Patterson, 278 F.Supp. 703, 705-06 (D.Colo.1968), aff'd, 400 F.2d 392 (10th Cir. 1968) (per curiam).

A defendant cannot adopt an out-of-court statement as his own without some affirmative action on his part. Merely remaining silent while confessions of others are made is not enough to adopt the others' as his own. See Glinsey v. Parker, 491 F.2d 337, 342 (6th Cir.), cert. denied, 417 U.S. 921, 94 S.Ct. 2630, 41 L.Ed.2d 227 (1974). Similarly, if the defendant had never heard the statements of the others, he could not have adopted them.

In the present case, appellant argues that he did not adopt the statements of his alleged accomplices and that he did not hear all of the tapes to which Detective Cross testified. He argues there is no evidence of what he actually heard.

Detective Cross testified to the contents of Robinson's statement: Robinson said that appellant was driving and Higgins was with him and they went to the pool room where they met Robinson and a fourth man, Evans. Robinson and Evans got into Higgins' car. They drove to a couple of houses and Higgins and Evans knocked, but no one was home. Then appellant drove to the place of the burglary and Higgins and appellant stayed at the car and Robinson and Evans went to the house. They came back and appellant drove off.

Cross testified that Higgins made two statements. In the first, he did not mention appellant. In the second, Cross asked if he had forgotten anything and reminded him about someone he shoots up with. Higgins remembered that it was Speedo's car and Speedo was driving; Speedo was appellant. Cross admitted that appellant did not hear the entire tapes or Higgins' first statement before responding, "What they said is true, but ...." Cross testified, "We allowed him to listen to just a portion of the recordings as to where Ricky Robinson had told of being picked up at the pool room by Tobias Poole, and we allowed him to listen to just approximately the same amount where Mr. Higgins implicated him as being...