Turpin v. Kassulke

• Decision Date: 24 August 1994
• Docket Number: Nos. 93-5529,93-5663,s. 93-5529
• Citation: 26 F.3d 1392
• Parties: Elizabeth TURPIN, Petitioner-Appellee, Cross-Appellant, v. Betty KASSULKE, Warden, Respondent-Appellant, Cross-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

Page 1392

26 F.3d 1392

Elizabeth TURPIN, Petitioner-Appellee, Cross-Appellant, v. Betty KASSULKE, Warden, Respondent-Appellant, Cross-Appellee.

Nos. 93-5529, 93-5663.

United States Court of Appeals Sixth Circuit.

Argued March 4, 1994.

Decided June 23, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Aug. 24, 1994.

Rodney McDaniel (argued and briefed), Frankfort, KY, for Elizabeth Turpin.

Todd D. Ferguson (argued and briefed), Chris Gorman, Atty. Gen., Frankfort, KY, for Betty Kassulke.

Before: KENNEDY and GUY, Circuit Judges; and FEIKENS, Senior District Judge. ^*

RALPH B. GUY, Jr., Circuit Judge, delivered the opinion of the court, in which KENNEDY, Circuit Judge, joined. FEIKENS, Senior District Judge (pp. 1402-17), delivered a separate opinion concurring in part and dissenting in part.

GUY, RALPH B., Jr., Circuit Judge.

Warden Betty Kassulke appeals the grant to petitioner Elizabeth Turpin ("Turpin") of a writ of habeas corpus. The district court found that the denial of Turpin's severance motion and the admission of certain writings into evidence rendered her state court trial fundamentally unfair. Turpin cross-appeals the district court's decision that her four other arguments for habeas corpus relief are without merit. We find that Turpin is not entitled to habeas corpus relief, and reverse the district court's grant of the writ.

I.

During the latter half of January 1986, Elizabeth Turpin and Karen Brown visited a Lexington, Kentucky, area bar in the company of Anthony Basham and Doug Elliot. Basham drove the group home from the bar, and during the drive Turpin remarked to Brown that her husband, Michael Turpin, had obtained a large insurance policy and that she "wouldn't want to be worth that much dead to someone." (App. at 322.) Turpin then stated, "kind of ... in a joking manner," that she and Brown could "bump off" Michael to "get the money" from his life insurance policy. (App. at 323.) Brown took Turpin's statement seriously, and replied that she "kn[e]w somebody that could do it if you wanted him to[.]" (App. at 323.) Brown stated several times, however, that she would only approach this person if Turpin asked her to do so. (App. at 324.)

Shortly thereafter, Brown approached Keith Bouchard and offered him several thousand dollars to murder Michael. (Tr. Vol. XII, p. 71.) Bouchard was receptive to this proposal.

On the night of February 2, 1986, Bouchard, Brown, and Turpin drove Turpin's car to another bar in the Lexington area. Upon exiting the bar later that night, Turpin and Brown discovered that Turpin's car had been moved to a parking spot other than the parking spot in which they had parked it. Since Michael was the only person besides Turpin to have a key to the vehicle, Turpin surmised that Michael was the person who had moved it. This realization greatly upset both Turpin and Brown. Brown was so agitated that she told Bouchard, with whom she had recently ingested cocaine, that they "need[ed] to get rid of Mike" that night. (App. at 293.) Turpin felt the same way, as she said to Bouchard, "I don't care how you do it; I just want to get--get it over with." (App. at 294.)

The trio thereafter returned to Brown's apartment, where they discussed different ways of committing the murder. Using a firearm was not a possibility, because they had already tried and failed to obtain a gun that night. (App. at 295.) Brown proposed "rigging up" a car bomb to Michael's car, but Bouchard replied that it was "too late for that." (App. at 297.) Turpin then found a corkscrew and suggested that they use it as the murder weapon, but Bouchard said that a corkscrew injury would "just make [Michael] mad." (App. at 297.) The trio next considered a plan according to which Turpin would carry on a "normal conversation" with Michael while Bouchard walked behind Michael and slit his throat. (App. at 299.) This plan also was discarded, though, because Turpin said she "probably couldn't handle doing it." (App. at 299.) The trio nevertheless continued to discuss the possibility of using "knives" to murder Michael. (App. at 299.) When Bouchard asked Turpin how he and Brown would be able to enter Turpin's apartment to commit the murder, Turpin gave them her key to it. (App. at 299.) Before leaving Brown's apartment with Brown, Bouchard asked Turpin, "[I]s this what you want"? (App. at 300.) Turpin responded by nodding her head. (App. at 300.)

Bouchard and Brown thereafter armed themselves with knives and proceeded to Turpin's apartment. Michael answered their knock at his door and allowed the pair to enter. As Brown began to feign concern about whether Turpin had arrived home safely that night, Bouchard lunged at Michael and began stabbing him in the face and throat. A struggle ensued and, at one point, Brown held Michael down and covered his mouth while Bouchard continued to stab him. (App. at 308-09.) After Michael died, the pair returned to Brown's apartment. There they met Turpin, who asked them whether "it [was] over with." (App. at 320.) Bouchard, who was covered with Michael's blood, simply replied, "[L]ook what your husband did to me[.]" (App. at 320.) ¹

A jury later found Turpin and Brown guilty of capital murder after their joint trial in Kentucky state court. Turpin and Brown each were sentenced to life imprisonment without parole eligibility for 25 years. Bouchard pled guilty to capital murder and testified for the prosecution during the joint trial. Turpin appealed to the Supreme Court of Kentucky, which affirmed her conviction.

Turpin thereafter filed a petition for federal habeas corpus relief, in which she presented six possible grounds for the relief sought. In response, the Commonwealth of Kentucky filed a motion for summary judgment. Turpin's petition was referred to a magistrate judge, who recommended that the district court grant the Commonwealth's motion and dismiss Turpin's petition with prejudice. After Turpin filed objections to this recommendation, the district court rejected the recommendation in part and granted Turpin's petition for a writ of habeas corpus. These appeals followed.

II.

We review de novo the district court's decision to grant Turpin's petition for habeas corpus relief under 28 U.S.C. Sec. 2254. Serra v. Michigan Dep't of Corrections, 4 F.3d 1348, 1350 (6th Cir.1993), cert. denied, --- U.S. ----, 114 S.Ct. 1317, 127 L.Ed.2d 666 (1994). The first of Turpin's two arguments that the district court accepted is that the trial judge's denial of her severance motion violated her due process rights. During her joint trial, the prosecution played for the jury a tape of Brown's statement to a police interrogator. The trial judge excluded, however, that portion of the tape which came after Brown told the interrogator she wanted a lawyer. Turpin asserts that the excluded portion of the tape is exculpatory as to her. Since this portion of the tape conceivably might not have been excluded if Turpin had been tried alone, Turpin maintains that the denial of her severance motion violated her fundamental right to present evidence in her own defense. ²

In considering this argument, the magistrate judge and district court looked to cases that addressed the issue of whether the denial of a severance motion was an abuse of discretion that deprived a defendant of his due process rights. As a general matter, however, severance cases focus either on antagonistic defense claims, see, e.g., Jenkins v. Bordenkircher, 611 F.2d 162 (6th Cir.1979), cert. denied, 446 U.S. 943, 100 S.Ct. 2169, 64 L.Ed.2d 798 (1980), or on an asserted need for codefendant testimony, see, e.g., Tifford v. Wainwright, 588 F.2d 954 (5th Cir.1979). Antagonistic defense claims present issues that are clearly distinct from those raised here. Similarly, the analysis used in the codefendant testimony cases is shaped by the need to determine whether the codefendant in fact would testify in a separate trial and, if so, what the precise nature of that testimony would be. See, e.g., Byrd v. Wainwright, 428 F.2d 1017, 1020-21 (5th Cir.1970). Here, in contrast, the denial of Turpin's severance motion effectively excluded from her trial a known, discrete item of evidence--the suppressed portion of Brown's statement. ³ Turpin's argument therefore is better analyzed under the cases that have considered due process challenges to state court rulings that excluded an item of evidence proffered by a criminal defendant.

These cases rest upon the proposition that "[t]he right of an accused in a criminal trial to due process is, in essence, the right to a fair opportunity to defend against the State's accusations." Chambers v. Mississippi, 410 U.S. 284, 294, 93 S.Ct. 1038, 1045, 35 L.Ed.2d 297 (1973). We have recognized that this right includes within it the right of a criminal defendant "to present evidence on his behalf[.]" Allen v. Morris, 845 F.2d 610, 615 (6th Cir.1988), cert. denied, 488 U.S. 1011, 109 S.Ct. 799, 102 L.Ed.2d 790 (1989). The right to defend one's self against the state's accusations is not absolute, however, "and may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Chambers, 410 U.S. at 295, 93 S.Ct. at 1046.

The Supreme Court looks to several factors in determining whether a defendant's due process rights require the admission of a particular item of evidence. First, the Court considers the extent to which the proffered evidence is "critical" in the context of the case. Id. at 302, 93 S.Ct. at 1049. Second, the Court considers the extent to which the proffered evidence "tend[s] to exculpate" the accused. Id. at 297, 93 S.Ct. at 1046-47. Finally, the Court determines whether the proffered evidence bears "persuasive assurances of trustworthiness[.]" Id. at 302, 93 S.Ct. at 1049. ⁴

In Chambers, the Court considered these factors in the course of addressing an issue very similar to that presented here. The defendant in Chambers was accused of...