Witham v. Mabry, 78-1474

Decision Date29 March 1979
Docket NumberNo. 78-1474,78-1474
Citation596 F.2d 293
CourtU.S. Court of Appeals — Eighth Circuit
Parties4 Fed. R. Evid. Serv. 98 Denver WITHAM, Appellant, v. James MABRY, Commissioner, Arkansas Department of Correction, Appellee.

Stephen C. Engstrom, Little Rock, Ark., argued, for appellant.

Jesse L. Kearney, Asst. Atty. Gen., Little Rock, Ark. (argued) and Bill Clinton, Atty. Gen., Little Rock, Ark., on brief, for appellee.

Before HEANEY, ROSS and McMILLIAN, Circuit Judges.

McMILLIAN, Circuit Judge.

Petitioner Denver Witham appeals from the district court's judgment dismissing his petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. For reversal Witham argues that the district court erred in ruling that certain affidavits and testimony he sought to introduce were inadmissible hearsay, and in ruling against his claim that he was denied effective assistance of counsel at his trial in the Arkansas state court. For the following reasons, we affirm the district court. 1

On October 18, 1974, a jury found petitioner guilty of first degree murder. At trial the evidence was that Tommy Stanley Wells, a young man in his twenties, was last seen alive on March 12, 1974, at approximately 1:30 a. m. when he left the Texas Lounge in Little Rock, Arkansas, with Denver Witham and Denver's cousin, Johnnie Witham, in Denver's automobile. About 8 a. m. on the same morning, Wells's body was discovered lying on the side of the road. Wells had been bludgeoned to death and was not recognizable.

Both Johnnie and Denver were indicted for the murder of Wells. Johnnie Witham's trial before Circuit Judge Henry B. Means in Saline County, Arkansas, ended on October 7, 1974. Denver Witham was tried in the same courtroom, before Judge Means, from October 11 through 17, 1974. Both were convicted of first degree murder and given life sentences.

Petitioner's defense at trial was that he was so drunk when the Texas Lounge closed in the early morning of March 12 that he crawled into the back seat of his car and passed out. He does not recall who was in the car, who drove or any events which occurred before 4:00 a. m. when he was awakened by his mother and sister from the back seat of his car, which was now at his house.

Denver's mother, Mrs. Gladys Witham, and his sister, Ms. Joyce Teague, corroborated his story. Mrs. Witham testified that she was awakened at approximately 4:00 a. m. on March 12 by a banging at the back door. When she opened it she saw her nephew, Johnnie Witham, who was covered with blood. He stated he had been in a fight and went to the bathroom to change clothes. Mrs. Witham found Denver in the back seat of Denver's car which was parked in back of the house. She enlisted the help of her daughter to move Denver, who had "passed out," into the house. Both Mrs. Witham and Ms. Teague stated that Denver had no blood on him.

Linda Clark, Denver's then estranged girlfriend, was spending the night of March 11 at the Witham household 2 and her rendition of the night's activities contradicted that of Mrs. Witham and Ms. Teague. According to Mrs. Clark, at 2:30 a. m. both Denver and Johnnie came running into the Witham house. Denver was crying and told his mother, "(y)ou all have got to help us"; "We have really done it this time"; and "We have killed a man. We beat him to death." Denver then told Johnnie to get the pipe out of the car and "drive it in the ground close to the drainage ditch so no one would find it." Mrs. Clark also stated that Johnnie's clothes were soaked with blood but, according to her, Denver too had blood on him there was one spot on his shirt and some in his hair, which she washed out.

After his conviction, Denver Witham pursued state remedies for two years to no avail. 3 On April 22, 1976, Witham submitted a petition for habeas corpus pursuant to 28 U.S.C. § 2254 to the district court; this petition was amended one year later. On November 17, 1977, the district court held an extensive hearing at which appellant called as witnesses Johnnie Witham, who refused to testify on the grounds of self-incrimination; Linda Clark; two of his fellow prisoners at Cummins Unit; and his aunt who supposedly received some revealing information from Linda Clark. The respondent called one witness petitioner's trial counsel Kenneth Cofflet. The district court found against petitioner on all issues and denied his request for a certificate of probable cause to appeal to this court. We granted certificate of probable cause and appointed counsel to represent petitioner on appeal.

On appeal counsel for petitioner raised only some of the issues which were raised before the district court. We can find no indication that these issues have been waived and so out of concern for fairness to petitioner, we will consider Sua sponte all issues which were raised at the § 2254 hearing below.

At this hearing, just as at the two hearings held in the Arkansas court after petitioner's conviction, Johnnie Witham was called as a witness by the petitioner and as he had done previously, invoked the fifth amendment and refused to testify. Johnnie Witham's testimony is crucial to substantiate petitioner's claim before the district court that Saline County officials conspired to prevent Johnnie from testifying and thereby exculpating petitioner.

When Johnnie invoked the fifth amendment, petitioner attempted to introduce the affidavits of two inmates at the Cummins Unit of the Arkansas State Penitentiary. One of these individuals was Johnnie Witham's cellmate for three to four months; the other was a "writ writer" who Denver had solicited to help with his post-conviction petitions. Essentially, these men testified that Johnnie told them Denver had nothing to do with the killing but that Johnnie had been promised by the "Prosecuting Attorney and his (Johnnie's) lawyer" that his life sentence would be reduced to five years if he did not testify for Denver.

The district court ruled that the statements by these inmates were inadmissible hearsay. Petitioner challenges this ruling on appeal arguing that the statements are admissible as an exception to the hearsay rule, specifically the "against penal interest" exception. This exception is based upon the "circumstantial probability of trustworthiness," that is, "the circumstance that the fact stated, being against the declarant's interest, is not likely to have been stated untruthfully." 5 Wigmore, Evidence § 1455 (Chadbourn rev. 1974). The party seeking to admit statements under this exception must prove (1) the declarant is unavailable, and (2) the statements are against the declarant's penal interest. 4 Fed.R.Evid. 804(a)(1) and 804(b)(3). Although we agree with petitioner that Johnnie is unavailable as required by the rule, we cannot agree that these statements are against his penal interest.

The Federal Rules of Evidence state that " 'Unavailability as a witness' includes situations in which the declarant . . . is exempted by ruling of the court on the ground of privilege from testifying . . . ." Fed.R.Evid. 804(a) (1). This circuit has made clear that the above definition includes the situation where the witness invokes the fifth amendment privilege against self-incrimination. See, e. g., United States v. Pelton, 578 F.2d 701, 709-710 (8th Cir. 1978); United States v. Rogers, 549 F.2d 490, 498 n.8 (8th Cir. 1976); See also 5 Wigmore, Evidence, supra, § 1456 n.6. Therefore, because Johnnie Witham was allowed to assert his fifth amendment right not to testify, he is, as petitioner claims, unavailable within Rule 804(a)(1).

The next element, whether the statements Johnnie made to his fellow inmates are against his penal interest, is complicated by the fact that Johnnie has already been convicted. At least one court has held that statements cannot be against one's penal interest if prosecution is not still possible. United States v. Marquez, 462 F.2d 893, 895 (2d Cir. 1972), Citing United States v. Dovico, 380 F.2d 325, 327 (2d Cir.), Cert. denied, 389 U.S. 944, 88 S.Ct. 308, 19 L.Ed.2d 302 (1967).

This circuit has not adopted such a rigid rule. Instead, we attempt to look at the practical significance of statements made by a witness, even one already charged with a crime, and determine, given all of the circumstances, if the statements are against that witness's penal interest. See, e. g., United States v. Love, 592 F.2d 1022 (8th Cir. 1979); United States v. Lilley, 581 F.2d 182, 187-188 (8th Cir. 1978); United States v. Rogers, supra, 549 F.2d at 498 n.8. 5 In the case before us, therefore, we do not hold that statements by Johnnie cannot be against his penal interest merely because he has already been convicted. Rather, we must inquire into the practical effect of Johnnie's statements and determine if from what petitioner has shown this court, the statements are against Johnnie's penal interest.

Petitioner has not articulated how these statements are against Johnnie's penal interest but Johnnie's court-appointed counsel has argued that any statements Johnnie makes could affect his post-conviction relief possibilities. Because we can find no other basis for petitioner's theory that these statements are against Johnnie's penal interest, we shall assume this is his theory also. In assessing whether the effect on Johnnie's post-conviction remedies is sufficient to qualify the statements as being against Johnnie's penal interest, we must bear in mind that petitioner has the burden of proving all elements of the exception to the hearsay rule that he seeks to invoke. United States v. Pelton, supra, 578 F.2d at 709 (and cases cited therein). Although there is some evidence that Johnnie, at least at one time, was pursuing some type of post-conviction relief, petitioner has not put forth any evidence as to what type of relief Johnnie is seeking or on what basis he is proceeding. If in fact Johnnie is still seeking post-conviction relief five years...

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