Stewart v. Cowan
| Citation | 528 F.2d 79 |
| Decision Date | 07 January 1976 |
| Docket Number | No. 74--1581,74--1581 |
| Parties | Raymond L. STEWART, Petitioner-Appellant, v. Henry COWAN, Warden, Respondent-Appellee. |
| Court | U.S. Court of Appeals — Sixth Circuit |
Joseph G. Glass, Louisville, Ky., for petitioner-appellant.
Ed W. Hancock, Atty. Gen. of Ky., Robert L. Chenoweth, Asst. Atty. Gen., Frankfort, Ky., for respondent-appellee.
Before WEICK, McCREE and ENGEL, Circuit Judges.
This is an appeal from the denial by the district court of appellant's petition for a writ of habeas corpus challenging his confinement following a Kentucky state court conviction of wilful murder. We consider whether the Confrontation Clause of the Sixth Amendment 1 precludes: (1) the admission of hearsay testimony by a local police officer about the result of a ballistics test conducted by an FBI laboratory technician who was not produced as a witness, and (2) the admission of hearsay testimony by the same officer that he had received several phone calls from anonymous persons accusing appellant of the crime. We hold that because the ballistics testimony constituted a significant link in the chain of circumstantial evidence against appellant, and because the prosecution failed to justify the unavailability of the person who prepared the ballistics report, the Confrontation Clause of the Sixth Amendment was violated when a police officer who had no personal knowledge of the ballistics test was permitted to tell the jury about its results. With respect to the second issue, we hold that the admission of the police officer's testimony that he had received several telephone calls from anonymous persons who accused appellant of shooting the victim also violated the Confrontation Clause.
Because we must assess the impact of the challenged testimony in the context of the other evidence against appellant, we set forth the factual circumstances in somewhat greater than usual detail.
Before murder charges were filed against appellant, he was facing prosecution for the theft of several thousand dollars worth of clothing from the Captain's Closet, a clothing store in Louisville, Kentucky. The theft took place in October 1968 and the homicide of which appellant was convicted occurred in the afternoon of January 21, 1969. The victim was Robert A. Benberry, who would have been a principal witness against Stewart in the trial for the theft of the clothing.
It appears that an owner of the Captain's Closet heard that Stewart was selling clothing similar to the type that was stolen, and asked Benberry and a companion, Ealy, to attempt to purchase a coat from appellant. Stewart sold them a coat from a supply of clothing in the trunk of his car. When the owner of the store identified the coat from his invoice and from the price tag affixed to it, charges were promptly filed against Stewart for burglary.
With respect to the facts surrounding the shooting, the record indicates that Benberry and Ealy met at a restaurant to celebrate Ealy's birthday. The two men drank some portion of a bottle of bourbon whiskey at the restaurant and then departed for a drive around the city. While driving, Ealy saw a friend entering the Top Hat Cafe, and suggested stopping there so that he could have a word with him. At the murder trial, Ealy testified that after he hurriedly got out of the car, he observed Benberry, still in the parked car, talking to 'a couple of guys.' Ealy heard a shot shortly after he entered the cafe, and he was informed that his friend had been shot. Ealy testified that he did not see the shooting. He left the cafe and found Benberry lying in the street. Although there was a crowd of about thirty people in the vicinity, Ealy said he noticed a man walk away from the scene and turn a corner. At a police lineup, Ealy could not identify appellant as the man who walked away.
The prosecutor's theory in the murder trial was that appellant killed Benberry in order to prevent him from testifying before the grand jury and at the trial on the charges of storehouse breaking. Nearly all of the evidence presented at the trial by the prosecution was given by police officers who had no personal knowledge of the circumstances of the killing.
Officer Green testified that he was one of the officers dispatched to the scene of the shooting. He stated that he found Benberry lying in the street and, that with the assistance of another officer, he drove him to General Hospital.
Officer Reece of the Homicide Squad testified that he found one spent cartridge casing from a .25 caliber automatic at the scene on the day of the shooting, and that on the next day he found three .22 caliber casings there. Detective Mercer, also of the Homicide Squad, testified that he had interviewed most of the 30--35 people present at the scene of the shooting, but that he was 'unable to get any information out of any of the bystanders.' Mercer also testified, over objection, that a ballistics report from the FBI laboratory indicated that although the bullet found in Benberry's body had markings similar to those that would have been produced by the putative murder weapon, there were 'insufficient microscopic marks remaining' on the bullet for comparison or identification purposes. Mercer also testified over objection that he received at least five anonymous phone calls implicating Stewart as the murderer. Finally, Mercer was permitted to testify from a police department file about a lineup at which he had not been present.
William Bryant was called as a witness by the prosecutor to establish that the gun analyzed in the ballistics report had been in appellant's possession. Bryant testified that he had been arrested for carrying a concealed weapon and that Raymond Stewart had given him the gun. However, on cross-examination the witness testified that 'if that's Raymond Stewart over there (pointing to the appellant), he didn't give me the pistol.'
The last prosecution witness called by the State, and the only one who was able positively to identify appellant as having been in the vicinity of the crime, was Luther Geter. Geter, an elderly man, said that he did not see who shot Benberry, but that he saw Stewart walking away from the scene of the shooting on the other side of the street. Geter also said that he saw a dark gun in Stewart's right hand. On cross-examination he conceded that the murder weapon exhibited at trial was bright rather than dark, and the gun he observed in Stewart's hand 'didn't shine that bright from where I was standin'.'
Appellant testified on his own behalf and admitted his presence at the scene of the shooting but denied that he shot Benberry. He testified that another person whom he had described to the police had shot Benberry.
This review of the evidence demonstrates that the State's case against Stewart was highly circumstantial. No eyewitness was produced to testify that Stewart shot Benberry. However, a police officer was permitted to testify that 'as a result of our investigation we learned that everybody in the neighborhood (of the crime) was saying that Raymond Stewart had shot Robert Benberry.' In addition, the officer communicated to the court the results of an FBI laboratory report indicating that the putative murder weapon might have fired the fatal bullet.
We consider first the officer's testimony about the FBI ballistics report. At the outset, the State contends that even if it were a violation of the Confrontation Clause to permit a witness to testify from a ballistics report despite the fact that he had no knowledge of the ballistics investigation, the error was harmless because the results of the tests were favorable to appellant. Although both the Kentucky Court of Appeals (in an unpublished opinion) and the district court expressed the opinion that the content of the report was beneficial to Stewart, we hold that prejudicial error was committed. The following is the police officer's testimony concerning the ballistics report:
Q. by Mr. Wooldridge: (continuing) Now, referring to the FBI report, was this bullet that was removed from Mr. Benberry's body sent also to the FBI laboratory?
A. Yes, sir, it was.
Q. First of all, will you tell the jury what caliber bullet that is?
A. It's a .22-caliber bullet, sir.
Q. And will you tell the jury what caliber bullet this gun (referring to purported murder weapon) shoots?
A. It shoots a .22-caliber either long, short or long rifle.
Q. Now then, was the FBI laboratory technician able to say that that bullet came from that gun?
A. No, sir, he wasn't.
Q. All right. Would you read to the jury the best he could do, based on what he had?
A. The bullet which came from Benberry's body is referred to in this report as Specimen Q5. The revolver is referred to as Specimen K1. Specimen Q5, or the bullet, is a partially mutilated caliber .22 long rifle hollow point, brass coated, lead bullet of Remington-Peters manufacture which was fired from a barrel rifled with six lands and grooves, right twist. While the four barrels of K1, K1 is the revolver which I hold in my hand, while the four barrels of K1 produce rifling impressions like those on Q5, there are insufficient microscopic marks remaining on Q5 for comparison or identification purposes. (Emphasis added.)
We believe that the officer's testimony cannot fairly be characterized as 'beneficial' to Stewart. If the test had shown that the purported murder weapon definitely had not been used to fire the fatal bullet, it would be accurate to say that this testimony was beneficial to appellant. Here, however, the officer's...
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