Vincent v. Seabold

• Decision Date: 10 August 2000
• Docket Number: No. 98-6457,98-6457
• Citation: 226 F.3d 681
• Parties: (6th Cir. 2000) Dean Vincent, Petitioner-Appellant, v. William Seabold, Warden, Respondent-Appellee. Argued:
• Court: U.S. Court of Appeals — Sixth Circuit

Page 681

226 F.3d 681 (6th Cir. 2000)

Dean Vincent, Petitioner-Appellant, v. William Seabold, Warden, Respondent-Appellee.

No. 98-6457

UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

Argued: August 10, 2000

Decided and Filed: September 13, 2000

Appeal from the United States District Court for the Western District of Kentucky at Bowling Green. No. 97-00091--Joseph H. McKinley, Jr., District Judge. [Copyrighted Material Omitted] Oleh R. Tustaniwsky, DEPARTMENT OF PUBLIC ADVOCACY, Frankfort, Kentucky, for Appellant.

Kent T. Young, OFFICE OF THE ATTORNEY GENERAL, CRIMINAL APPELLATE DIVISION, Frankfort, Kentucky, for Appellee.

Before: KEITH, COLE, and GILMAN, Circuit Judges.

OPINION

R. GUY COLE, JR., Circuit Judge.

In August 1985, a jury in Butler County, Kentucky, convicted Petitioner-Appellant Dean Vincent, along with co-defendants Leroy Kinser and Ronald Johnson, of first degree robbery, first degree burglary, and murder. It was established at trial that on June 15, 1983, the defendants broke into the home of Harold Hayes, beat him, bound him with duct tape, and robbed the home, leaving Hayes to die of blunt-force injuries to the head. All three defendants were sentenced to twenty years' imprisonment on both the robbery and the burglary convictions and life imprisonment on the murder convictions. After the Kentucky Supreme Court affirmed their convictions on direct appeal in Kinser v. Commonwealth, 741 S.W.2d 684 (Ky. 1987), Vincent and Johnson filed petitions for writs of habeas corpus pursuant to 28 U.S.C. § 2254. The district court denied each petition, but this Court reversed, concluding that Vincent and Johnson were entitled to habeas relief on the ground that their Sixth Amendment rights to confrontation had been violated. See Vincent v. Parke, 942 F.2d 989, 993 (6th Cir. 1991); Johnson v. Parks, 955 F.2d 44, 1992 WL 27027 (6th Cir. Feb. 14, 1992). We remanded the case for retrial, and on February 14, 1993, a jury found Vincent and Johnson guilty of first degree robbery, first degree burglary, and wanton murder. Vincent was sentenced to fifteen years' imprisonment on both the robbery and burglary convictions and life imprisonment on the murder conviction; the sentences were to run consecutively. The Kentucky Supreme Court affirmed Vincent's convictions but remanded the case to the Butler Circuit Court for resentencing because Kentucky law requires that the fifteen year sentences were to run concurrently with the life sentence. On April 22, 1997 Vincent filed a second petition for writ of habeas corpus, asserting, inter alia, that various testimony violated his Sixth Amendment rights under the Confrontation Clause. Upon recommendation of the magistrate judge, the district court denied Vincent's habeas petition. This appeal follows.

For the reasons that follow, we REVERSE the district court's judgment and REMAND to the district court with instructions to grant the petition for habeas corpus unless, within a reasonable time, the Commonwealth elects to afford Vincent a new trial.

DISCUSSION

I. Standard of Review

We review a district court's legal conclusions in a habeas proceeding de novo and its factual findings for clear error. See Lucas v. O'Dea, 179 F.3d 412, 416 (6th Cir. 1999). Because Vincent filed his habeas petition on April 22, 1997, review of the state court's decision is governed by the standards set forth in the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Harpster v. Ohio, 128 F.3d 322, 326 (6th Cir. 1997). As amended, 28 U.S.C. § 2254(d) provides:

(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court unless the adjudication of the claim--

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based upon an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d). In Williams v. Taylor, 120 S. Ct. 1495 (2000), the Supreme Court recently explained that an "unreasonable application" of clearly established federal law established by Supreme Court precedent occurs if "the state court identifies the correct governing legal rule from [the Supreme Court's] cases but unreasonably applies it to the facts of the particular state prisoner's case." See id. at 1520. A state court decision can be "contrary to" clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question of law or confronts facts that are materially indistinguishable from a relevant Supreme Court precedent and arrives at an opposite result. See Machacek v. Hofbauer, 213 F.3d 947, 952-53 (6th Cir. May 26, 2000) (citing Williams, 120 S. Ct. at 1519).

II. Confrontation Clause

A.

Vincent first asserts that the trial court violated his Sixth Amendment right to confrontation when it allowed Detective Gaddie of the Kentucky State Police to testify as to post-arrest, custodial hearsay statements made by former co-defendant Kinser¹. Prior to the retrial, Vincent filed a motion to exclude Kinser's confession as violative of the Confrontation Clause, but the trial court denied Vincent's motion, holding that the confession would be admissible in the event that Kinser refused to testify. The trial court relied upon Taylor v. Commonwealth, 821 S.W.2d 72 (Ky. 1991) (holding that a co-defendant's confession was admissible under exception to hearsay rule for statement against penal interest by unavailable declarant, notwithstanding the fact that the confession implicated the defendant, because the co-defendant admitted to having been an active participant in the crime), cert. denied, 502 U.S. 1100 (1992), overruled on other grounds, St. Clair v. Roark, 10 S.W.3d 482 (Ky. 1999)).

Before Kinser was called to the stand, the court conducted an in-chambers conference with all counsel present to determine if Kinser would testify voluntarily. As Kinser had been tried and convicted and his sentence had been affirmed, it was determined that Kinser possessed no Fifth Amendment right that would allow him to refuse to testify. The court decided that it would allow the Commonwealth to call Kinser to the stand. Once on the stand, Kinser refused to take the oath and would not testify, despite the fact that the court advised him he possessed no Fifth Amendment right against self-incrimination and that he would be held in contempt. The court recessed for the day, and the next morning appointed counsel for Kinser, confirming once again that according to the federal court clerk and the Kentucky Supreme Court clerk, Kinser could invoke no right under the Fifth Amendment that would enable him to refuse to testify. After Kinser again refused to testify, the court ordered him in contempt and held him to be an "unavailable witness" under Ky. R. Evid. 804(a) (recognizing the unavailability of a witness in situation where declarant "persists in refusing to testify concerning the subject matter of the declarant's statement despite an order of the court to do so").

Thereafter, the Commonwealth announced its intention to call Detective Gaddie to the stand to testify as to the post-arrest, custodial statements made by Kinser. Before allowing Gaddie to introduce Kinser's confession, the court held another in-chambers conference to discuss Gaddie's intended testimony concerning the substance of Kinser's confession and the taking of his statements. Gaddie explained that Kinser had signed a properly executed Miranda rights form and that Kinser's attorney, Gary Logsdon, had advised him to give a statement. The court also reviewed the transcript from a 1984 suppression hearing in which Logsdon testified that he and Kinser had discussed at length Kinser's option of making a statement. Logsdon testified that Kinser "sincerely desired to make a statement," understood his Miranda rights, was not under duress or compulsion, and understood that no inducements or promises had been made by the police or prosecutor. Defense counsel argued that Kinser's confession was not a statement against penal interest under hearsay exception Ky. R. Evid. 804(b)(3) because it sought to inculpate Vincent and Johnson while minimizing Kinser's own participation in the crime. However, the court determined that Kinser's confession was sufficiently self-inculpatory insofar as he indicated that he was an active and willing participant in the crime and made no effort to prevent or diminish the severity of the blows Vincent and Johnson gave to Hayes. The court then allowed Gaddie to testify as to Kinser's confession, stating, "the presumption of unreliability has been overcome by the evidence that we've heard and . . . the confession, to the extent that it is relevant to the matters charged, is admissible as evidence."

Detective Gaddie then testified that on August 29, 1983, Kinser made a statement to Gaddie at the State Police Post in Bowling Green, Kentucky. Kinser told Gaddie the following: He, Vincent, and Johnson broke into the home of Harold Hayes, finding Hayes asleep on the couch. Vincent approached Hayes and struck him twice in the head with a billy club and began to search the house for money. Johnson kicked Hayes and then began to use duct tape to constrain him. Vincent returned to the room and began interrogating Hayes about the whereabouts of some money that defendants believed was in the house. Vincent again struck Hayes with the club three or four more times before continuing his search. All the while, Kinser was searching the house for the money. Vincent then yelled to the others that "he'd found it" and returned to the room with a sack of money....