Robert L. Steele v. Terry D. Taylor, Supt., Owen J. Kilbane v. Ronald C. Marshall, Supt., Martin A. Kilbane v. Ronald C. Marshall, Supt.

ANNA DIGGS TAYLOR, District Judge,

dissenting.

I must dissent, and do so for all of the reasons so well stated in the opinion of District Judge George W. White, as well as in the dissent of Judge Jackson of the Ohio Court of Appeals. I am most concerned, however, that the defendants in this prosecution were deprived of the right which the Sixth Amendment of the United States Constitution guaranteed them when it stated:

In all criminal prosecutions the accused shall enjoy the right ... to be confronted with the witnesses against him.

That right was held to apply to the states through the Fourteenth Amendment in Pointer v. State of Texas, 380 U.S. 400 , 85 S.Ct. 1065 , 13 L.Ed.2d 923 (1965). The constitutional error which has occurred here was not harmless, as the evidence of guilt was far from overwhelming. Indeed, the trial court itself wrote of the hearsay statements here in question in his denial of defendants’ requests for a new trial, that' this evidence was “more probative than any other evidence which the proponents [i.e. *1207 the State] could procure through reasonable efforts .... ”

It should be understood clearly that the testimony which has convicted these individuals was not mere hearsay, but was double hearsay. That is, FBI Agent Ressler testified that Carol Braun had once told him (but later denied) that she had heard statements made by each of these three defendants, either before or after the Steele murder, which tended to incriminate them variously. The Braun statements were not concerning her personal observations, nor did they involve or incriminate her in any way. Agent Ressler said that she had said that she had overheard the two Kilbanes allegedly conspiring to murder Marlene Steele. Ressler also said that she had said that Owen Kilbane had, essentially, “confessed” his participation in the murder conspiracy to her subsequently, and had also told her of the roles of defendant Steele and State’s witness Robbins in the plot. Finally, Agent Ressler said that Braun had said that Steele and Owen Kilbane had instructed her to tell the police nothing, when an investigation had commenced.

Even if Carol Braun had testified at these defendants’ trial, and if severance had been denied as it was in actuality, the “confession” of Owen Kilbane to Braun would have violated the confrontation rights of defendants Steele and Martin Kilbane, at the least. See Bruton v. United States, 391 U.S. 123 , 88 S.Ct. 1620 , 20 L.Ed.2d 476 (1968). Moreover, I fail to see why that problem has disappeared, in the present context.

But Carol Braun did not testify and there has been no contention that she was a co-conspirator of these defendants, making statements during the pendency of and in furtherance of a conspiracy. Indeed, it cannot be fairly argued that any of the defendants’ alleged statements to her even fell within those parameters. Accordingly, Agent Ressler’s testimony as to what Braun said the defendants said to her was the purest of doubly attenuated hearsay, and a gross deprivation of their constitutional right to confront their accusers.

Secondly, those “circumstantial guarantees of trustworthiness” which federal courts may utilize, ad hoc, to except a clearly reliable statement from the hearsay rule under Federal Rule of Evidence 804(b)(5) were not only unrecognized in Ohio law at the time of trial, but were and still are utterly nonexistent in this ease. Every fact and circumstance in evidence concerning the making of the Braun declarations cries out for an opportunity to cross-examine. The declarations were not in the least respect against any legally recognized interest of the declarant, though they might tarnish a reputation in some circles. Braun had a clear and acknowledged motive to falsify at the time. She had just left Owen Kilbane “once and for all” in 1975, and had called Agent Ressler to advise that she was prepared to give evidence against Owen because she wanted to “put him away”, with her accusation of an alleged five-year-old crime. There was nothing spontaneous about the statements. She sought Ressler’s help to achieve revenge against her estranged lover. She asked Ressler to show her pictures, give her some names, and hints, and she would be able to recall Owen’s criminal acts for Ressler to prosecute.

Finally, the “trustworthiness” of those accusations is completely undone by their recantation before Agent Ressler had passed them on to the jury. Carol Braun had told him, before trial, that these statements were all false, and that she had lied, been drunk, been on drugs, and been insane when she made them. She had long since gone back to Owen Kilbane, and they were the parents of a newborn baby.

The majority here, like the Ohio trial court, has further found that all defendants waived such right to confrontation as is acknowledged to be applicable, by “procuring” the unavailability of Carol Braun. On that issue I first must note that defendants Martin Kilbane and Steele asked leave of the trial court to subpoena her for cross examination on Ressler’s statement, and were denied that leave. There is, the Trial Judge acknowledged, “no proof” that de *1208 fendants Martin Kilbane and Steele participated in any effort to procure Braun’s refusal to testify, but inasmuch as all three defendants were “united in interest and effort”, he attributed the waiver found against Owen Kilbane to all three.

And as to the facts upon which Owen Kilbane’s “procurement” and “manipulation” of her refusal were found: those are the identical facts which the Trial court had just found insufficient to support a claim of commonlaw marriage. That is, they included the fact that the parties had exchanged commonlaw vows in 1967 and again before trial, that Braun used Kilbane’s name, lived with him, had just given birth to his child within weeks of trial, and that “she was dependent upon him for food and shelter for herself and her child.” On those facts the Trial court jailed Braun for six months for claiming wifehood and refusing to testify. Then, without holding any further evi-dentiary hearing whatsoever, the trial court held that a wrongful procurement of the unavailability of the witness by the defendants had been established, resulting in waiver of their Sixth Amendment rights. These conclusions appear to flow from the trial court’s finding, repeated by this majority, that the Braun/Kilbane relationship was not that of husband and wife, but that of pimp and prostitute. If that latter relationship is a status recognized in the law, the question remaining to be answered is how, definitionally, one precludes the other.

The standards of Reynolds v. United States, 98 U.S. 145 , 25 L.Ed. 244 (1878) for a finding of waiver of the right to confrontation by procuring the unavailability of a witness have not been met here. No evidentiary hearing was ever had, and not one fact other than the “marital” character of the Braun/Kilbane relationship has been cited to support the finding.

Finally, the “manipulation and procurement” analysis appears to be based upon the assumption that Braun’s testimony would have been expected to be less favorable to defendants than was the inevitable result of her refusal to testify. The trial court had announced in a written opinion that if Braun again refused to testify, her statements to Ressler would be introduced. If she had testified, surely her recantation from the stand of her prior statements to Ressler would have been more clearly etched upon the minds of the jurors than it ultimately was, as a footnote to Ressler’s testimony. If this matter is to be decided by suppositions, I will here insert my supposition that defendants would have preferred her testimony to Ressler’s, after entry of that final order, and that any feasible “manipulation” would have brought her forward at that time.

Braun’s reasons for not testifying were doubtless complex, but there is no evidence whatsoever that they were anything other than personal, and her own.

I would affirm Judge White in all respects.