Steele v. Taylor

• Decision Date: 28 July 1982
• Docket Number: No. 81-3264,81-3264
• Citation: 684 F.2d 1193
• Parties: 11 Fed. R. Evid. Serv. 525 Robert L. STEELE, Petitioner-appellee, v. Terry D. TAYLOR, Supt., Respondent-appellant. Owen J. KILBANE, Petitioner-appellee, v. Ronald C. MARSHALL, Supt., Respondent-appellant. Martin A. KILBANE, Petitioner-appellee, v. Ronald C. MARSHALL, Supt., Respondent-appellant.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1193

684 F.2d 1193

11 Fed. R. Evid. Serv. 525

Robert L. STEELE, Petitioner-appellee, v. Terry D. TAYLOR, Supt., Respondent-appellant.

Owen J. KILBANE, Petitioner-appellee, v. Ronald C. MARSHALL, Supt., Respondent-appellant.

Martin A. KILBANE, Petitioner-appellee, v. Ronald C. MARSHALL, Supt., Respondent-appellant.

No. 81-3264.

United States Court of Appeals Sixth Circuit.

Argued Feb. 2, 1982.

Decided July 28, 1982.

Simon B. Karas, Asst. Atty. Gen., Columbus, Ohio, Albin Lipold, Asst. Pros. Atty., Cuyahoga County, Cleveland, Ohio, for respondent-appellant.

Leonard W. Yelsky, Angelo F. Lonardo, Yelsky, Singer & Lonardo, Cleveland, Ohio, for Steele.

Ralph D. Sperli, Cleveland, Ohio, for O. J. Kilbane.

Mark R. Devan, Cleveland, Ohio, for M. Kilbane.

Before LIVELY and MERRITT, Circuit Judges, and TAYLOR, District Judge. ^*

MERRITT, Circuit Judge.

In this state habeas corpus, murder case from Ohio, a jury convicted a Cleveland municipal court judge and two other petitioners of hiring another to assassinate the judge's wife. The two principal constitutional questions on appeal arise under the confrontation clause of the sixth amendment ¹ and the self-incrimination clause of the fifth amendment ² which were made applicable to the states through the fourteenth amendment in Pointer v. Texas, 380 U.S. 400, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965), and Malloy v. Hogan, 378 U.S. 1, 84 S.Ct. 1489, 12 L.Ed.2d 653 (1964). The first question arises because a crucial witness for the state wrongfully refused to take the stand, was held in contempt but still refused to testify. Her prior, unsworn statement to the police incriminating the defendants was then admitted on grounds that defendants procured her unavailability. The second question arises because the defendants did not testify. In final argument defense counsel argued that "Mr. Robbins," the contract assassin named by the state, "didn't do it," and "you must acquit them, even if you think they did it through someone else." To this argument the prosecutor immediately responded that although "defendants contend they are not guilty, not one of them has said, 'we are innocent.' " The state trial court advised the jury to disregard the comment and issued clear, curative instructions in its final charge advising the jury that it should draw no inferences adverse to the defendants because they did not take the stand.

The main questions on appeal are: (1) Is the confrontation clause violated by a state rule of evidence admitting a prior, probative hearsay statement by a witness, whose unavailability was procured by the defendants, when the statement would have been admissible under a traditional hearsay exception had the witness taken the stand? (2) Did the prosecutor's comment, taken in light of the curative instructions, constitute an improper comment on the defendants' failure to take the stand requiring that defendants' convictions be vacated?

In an unreported opinion reviewing the findings and conclusions of the federal magistrate, the District Court issued the writs of habeas corpus holding that the two, claimed state trial errors described above violate the fifth and sixth amendments. For essentially the same reasons stated by state trial Judge Nahra in his opinion denying defendants' motion for new trial, see State v. Kilbane, 61 Ohio St.2d 201, 400 N.E.2d 386, 5 Ohio Opinions 3d 383 (1977), we conclude that no constitutional error occurred and, therefore, reverse. On the fifth amendment question we conclude that where, as here, a prosecutor's comment, in context, is open to two or more interpretations, only one of which would constitute an improper comment on the defendants' failure to take the stand, the possible constitutional error can be and was cured by clear instructions to the jury. On the more difficult confrontation clause question, we conclude that the state rule of evidence described above respecting a defendant's procurement of witness unavailability is constitutional and was constitutionally applied at the trial to the facts of the case by Judge Nahra.

I.

The evidence adduced at trial, taking the state's case in its strongest light, shows that Judge Robert Steele hired two brothers who were former clients, Owen and Martin Kilbane, to find a person to kill his wife, Marlene Steele. He had fallen in love with another woman whom he married three months after the murder; his wife would not consent to a divorce. The Kilbane brothers hired Rick Robbins, a contract assassin, who carried out the murder on January 9, 1969. He shot her at home in bed asleep at night while her two children and Steele were in the house. The police immediately suspected Steele but were unable to solve the case until seven years later when Carol Braun, the key witness who refused to testify at the trial, contacted FBI Agent Ressler. He and another agent interviewed her at length and took a signed statement. She said she had been a prostitute for Owen Kilbane for ten years and wanted to escape his control. In 1968 she meet Steele, Kilbane's lawyer. She had heard several conversations between Owen and Martin Kilbane, concerning their plans to carry out the murder for Steele. She learned before the murder that Robbins was to commit the crime, and immediately afterward Owen Kilbane told her how the crime had been carried out.

After this interview, Robbins was arrested and charged with another murder. Upon conviction, he agreed to testify as to his part in the Steele murder in exchange for immunity from prosecution and protection for his family.

The state's evidence at the trial was strong. The motive was clearly established. A lawyer friend of Steele, David Lombardo, a man with no apparent motive to lie, testified that Steele told him three months before the murder that he was thinking about finding someone to kill his wife. ³ Robbins testified that he was hired by the Kilbane brothers acting for Steele. He testified concerning the details of the crime and how he was contacted and paid. He testified that he did not meet Steele until sometime after the murder. The only reference to the murder that ever passed between them came on one occasion when Steele winked at him and said simply "Good job."

In constructing its order of proof, the state viewed the testimony of Carol Braun as the major link in the chain stretching from Steele to Owen and Martin Kilbane to Robbins. Robbins' credibility was weak. Along with the motive and the testimony of Steele's lawyer friend, Braun would provide the corroboration the prosecutor thought was needed for the jury to believe Robbins' testimony.

The record reveals a strenuous tactical battle between the prosecution and defense counsel over the testimony of Carol Braun. Through a combination of tactics, the defense sought to prevent her testimony.

By the time of trial, Carol Braun was again living with Owen Kilbane and had given birth to a child. Fearful that Braun would not be available as a witness, the state placed her in protective custody. Owen Kilbane obtained a lawyer for her, and his own counsel also remained as Braun's co-counsel. All defense counsel contested protective custody and sought her release. The trial court released her from custody.

The state then sought to perpetuate her testimony by deposition. Braun's lawyer and the other defense counsel objected on grounds of the marital privilege. The court ordered her deposition taken on this issue. In that deposition, in addition to testimony concerning her relationship with Owen Kilbane, she stated that her previous statement to the FBI was false. The defense then sought to prevent her testimony at trial on the grounds that the deposition established the marital privilege, that she was entitled to refuse to testify under the fifth amendment, and that her previous statement was false. The court overruled these objections and ordered her to testify. Owen Kilbane's counsel advised the court that she would refuse to testify, even if held in contempt. After severe lectures from the bench on conflict of interest, Owen's lawyer withdrew as co-counsel for Braun. Braun's counsel appealed the court's ruling on the marital privilege.

At the trial, Braun was called over the objection of all defense counsel. Her lawyer-employed for her by Owen Kilbane-stated that she would not testify and acknowledged that he had counseled her to follow this course in view of the fact that the marital privilege question was on appeal. Braun refused to step forward and be sworn upon the court's order, was held in contempt and sentenced to six months in jail. After the prosecution moved that she be "forcibly brought before the jury ... so they can see her presence, and be cross-examined, whether or not she is sworn," all defense counsel moved that she not be forced to take the stand before the jury.

The trial judge stated that, based on his observation of the witness, the evidence introduced in the case, and the course of events leading to the impasse, it was his opinion that the witness was under the control of the defendants who had procured her refusal to testify. Relying on Reynolds v. United States, 98 U.S. 145, 25 L.Ed. 244 (1878) (a defendant who procures the unavailability of a witness is not entitled to exercise his right of confrontation with respect to the witness), ⁴ the court ruled that "Miss Braun will be brought to the court and given an opportunity to testify" before the jury is seated. "If she refuses, her written statement may be introduced. Thereafter, she may be cross-examined by any party." (Record at 3539-40) She refused to come into the courtroom voluntarily. Defense counsel for Steele and Martin Kilbane immediately requested that she be subpoenaed as their witness for cross-examination. Notified of the subpoenas, she still refused to enter the courtroom. Agent Ressler testified as to the content of her prior statement. He was cross-examined at length by defense counsel...