Wagster v. Overberg, 76-2506
| Decision Date | 12 August 1977 |
| Docket Number | No. 76-2506,76-2506 |
| Citation | 560 F.2d 735 |
| Parties | Andrew Lee WAGSTER, Petitioner-Appellee, v. Roger T. OVERBERG, Respondent-Appellant. |
| Court | U.S. Court of Appeals — Sixth Circuit |
William J. Brown, Atty. Gen. of Ohio, Allen P. Adler, Columbus, Ohio, for respondent-appellant.
Hugh D. Holbrock, Timothy R. Evans, Holbrock, Jonson, Bressler & Houser, Hamilton, Ohio, Andrew Lee Wagster, pro se, for petitioner-appellee.
Before WEICK, EDWARDS and ENGEL, Circuit Judges.
The State of Ohio has appealed from an order of the District Court granting a writ of habeas corpus to the petitioner, Andrew Lee Wagster.
Wagster was convicted on January 15, 1970 by a jury in the Court of Common Pleas of Butler County, Ohio of murder in the second degree. He was sentenced to life imprisonment. His conviction was affirmed on direct appeal to the Court of Appeals for the First Appellate District of Ohio, and his appeal to the Supreme Court of Ohio was dismissed sua sponte for lack of a substantial constitutional question. Wagster then filed a petition for writ of habeas corpus with the United States District Court for the Southern District of Ohio, Eastern Division, alleging, for the first time, violation of his constitutional rights by suppression of exculpatory evidence. The petition was denied for failure to exhaust his state remedy of delayed appeal. Thereafter petitioner's motion for a delayed appeal was overruled by the Court of Appeals for the First Appellate District of Ohio, and a similar motion was overruled by the Supreme Court of Ohio.
On January 6, 1976 Wagster filed a second petition for a writ of habeas corpus with the United States District Court for the Southern District of Ohio, Eastern Division, alleging that he was deprived of his constitutional rights by:
(a) Suppression of exculpatory evidence by the prosecution and refusal of the judge to grant defendant's motion for exculpatory evidence.
(b) The refusal of the trial court to suppress illegally seized evidence.
After an evidentiary hearing was held in the District Court concerning the factual issues raised by the petition and the return of the writ, the Court rendered an opinion and entered an order granting the writ. The Court rejected petitioner's Fourth Amendment contention with respect to suppression of illegally seized evidence, but held that petitioner had sustained his burden of proof with respect to his remaining contention that the failure of the prosecutor to reveal to defense counsel the pretrial statement given to the Hamilton, Ohio police by one Pauline Williams, constituted the suppression of exculpatory evidence and denied petitioner a fair trial. The sole issue before us on this appeal is whether petitioner was denied a fair trial because the prosecutor did not furnish to the defense counsel the pre-trial statement of Pauline Williams. We disagree with the conclusion of the District Court that petitioner sustained his burden of proof on this issue, and we reverse.
After the jury was empaneled and before any testimony was taken at petitioner's trial in the Court of Common Pleas of Butler County, the following colloquy took place among defense counsel, the prosecutor, and the trial court:
Mr. Signer (Defense counsel): At this time, in behalf of the defendant, we would like to make a Motion to require the prosecution to produce all evidence and testimony in his possession which may be favorable to the defendant; in particular, we would like to have the results of all forensic tests, ballistics tests, fingerprint tests, blood tests that being tests of the blood of the decedent. We should also like to have copies of any statements made by any person to the prosecution whom the defense will call as their witnesses in chief, and who we have been informed the prosecution shall also call in chief.
Mr. Wessel (Prosecutor): If the Court please, and on the basis of a case recently decided by this Court not by this Judge in the State vs. Latham, I would ask the Court to deny defendant's Motion on the basis that any statement from a witness the police have obtained and submitted to me, any forensic test performed by any technician or doctor, is a "work Product" and as such, is privileged, and therefore not within the purview of discovery as indicated by the defendant.
By the Court: I am going to overrule your Motion. However, I am going to order that the Prosecutor give to you, prior to introduction and for purposes of Cross-Examination, any statements or copies of statements that he may have that a witness has given. For purposes of Cross-Examination, he will be required to furnish you a copy of whatever he has.
Shortly thereafter the first witness was called. The pertinent testimony at the trial is accurately summarized by the District Court as follows:
The only witness called by the prosecution who was present at the Wayside Inn on the night of the shooting was Barbara Fagg. She testified that Wagster was seated at a table with four or five others near a jukebox at the rear of the bar. Fagg was standing alongside the bar next to her husband, who was seated on a barstool. Roy Louis Haag was sitting on a barstool near the front of the bar; she saw him go to the rear of the bar, stand at the Wagster table, and converse with those seated there. The jukebox was playing, and she did not hear any conversation. She did not see or hear any altercation in the bar. She did not see Haag return to the barstool, but when she heard three shots fired, she turned and saw Haag falling off the barstool at the front of the bar. She then saw Wagster walking from the front of the bar to the rear with a gun in his hand. She saw nothing in Haag's hands as he fell. . . . She testified that when the shots were fired, she was "(f)acing toward the jukebox, and the shots came from behind me."
Carl Burton, an ambulance attendant, testified that when he arrived at the Wayside Inn Haag was lying in a pool of blood right next to the front door. Dr. Garret J. Boone, Butler County Coroner, testified that he conducted a preliminary examination of Haag's body, and that at that time he removed from one of his pockets "a small pocket knife with a blade about two and a half inches long there were two blades." He further testified that he was present when an autopsy was performed on the body. Haag was hit by two bullets, both entering on the left side of his body and traversing toward the right side. The bullet which caused death entered at the upper left side of the body, at the mid-auxiliary line, and punctured both lungs. The other bullet entered about nine inches lower and crossed the middle of the abdomen.
Detective James C. Thomas testified that on the day following the shooting he went to the Wayside Inn to look for a spent bullet, and found it under the round table near the jukebox at the rear of the bar. The floor of the bar was freshly mopped and still wet.
Steve Molonar, a ballistics expert, testified that a bullet found in Haag's body, and the one found in the bar by Detective Thomas, were fired from a Smith and Wesson 32 calibre revolver found by Patrolman Robert Herd in an alley outside the Wayside Inn on the night of the shooting. He also testified, based upon his examination of the gun powder burns near the entry holes of Haag's shirt, that the gun was touching the shirt when one shot was fired, and between one and three feet away from it when the other shot was fired.
This, in essence, was the prosecution's case-in-chief. After a motion for judgment of acquittal was overruled, petitioner took the stand in his own behalf.
Wagster testified that he had never met Haag before, but that Haag came back to the table by the jukebox when Wagster's nephew, Anthony Wagster, arrived. Anthony introduced Haag to petitioner, and Haag went back to the bar. Thereafter, Haag returned to the Wagster table and asked petitioner's girlfriend to dance; she declined. Haag then followed Wagster into the restroom and, according to Wagster, "called me a name." Wagster testified that he ignored Haag because Haag was physically larger than he, and he was scared of him. After Wagster returned to his table, he testified, Haag approached him again and hit him on the side of his face with his fist, knocking him out of his chair. Wagster stood and shoved Haag away. Haag then pulled out a knife and said, "Ill kill you, you son-of-a-bitch." Wagster then fired his revolver, and Haag turned around, walked toward the front of the building, and fell. He testified that he did not shoot Haag at the front of the bar. He told the jury that he ran from the bar after the shooting because he was scared.
Anthony Wagster was called by the defense and testified that he had warned petitioner that Haag carried a knife. He also testified on direct that a fight did break out between petitioner and Haag at the table near the jukebox; on cross-examination, however, he testified that he did hear a fight, but did not see who was involved in it.
Phyllis Crank, petitioner's girlfriend, then testified. Her story corroborated petitioner's in most respects. She said Haag had been "smarting off," that he struck petitioner in the mouth and said "I'll kill you, you son-of-a-bitch." She was knocked over the jukebox and saw nothing else. She did not mention seeing a knife.
Felix Wagers, Jr., testified that he was seated "back toward the end of the bar," heard an argument and some cans rattling, and heard two shots. He heard no furniture overturned, and heard no shouts. Barbara Fagg, petitioner, and Phyllis Crank had testified that Wagers was seated at the Wagster table before the shooting.
This, in essence was the defense case. The prosecution put on no rebuttal witnesses.
Petitioner alleged in his second petition for a writ of habeas corpus in the United States District Court:
The prosecutor had in his possession the statement of a witness to the incident, one Pauline...
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