# Otis Lee Fuson v. A.R. Jago

> Court of Appeals for the Sixth Circuit · September 11, 1985 · 773 F.2d 55

URL: https://www.frixlaw.com/law-library/cases/9473999

## Case

- **Full name:** Otis Lee FUSON, Petitioner-Appellee, v. A.R. JAGO, Respondent-Appellant
- **Court:** Court of Appeals for the Sixth Circuit
- **Decided:** September 11, 1985
- **Citations:** 773 F.2d 55; 19 Fed. R. Serv. 707; 1985 U.S. App. LEXIS 22925
- **Precedential status:** Published
- **Opinion:** Dissent by Merritt
- **Judges:** Keith, Merritt, Jones
- **Cited by:** 34 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9473999

## How later opinions describe it (automated extraction)

- declining to find adoptive admission in custodial setting under Ohio Rules of Evidence
- applying Ohio evidentiary law

## Opinion text

MERRITT, Circuit Judge,
dissenting.
In this habeas corpus case collaterally attacking petitioner’s Ohio burglary conviction, I do not agree with the Court that state court admission of deceased co-conspirator Martin’s incriminating statement made in petitioner’s presence violated the Confrontation Clause. By shrugging his shoulders rather than denying or disagreeing with confederate Martin’s statement, petitioner adopted it in the sense that he said, in effect, “I do not contest what he said.” Martin’s statement is reliable because it expressly admits that both participated in the crime—and hence is a statement against Martin’s penal interest—and because it was made in petitioner’s presence. Surely such an uncontested statement incriminating both has sufficient reliability to meet the test of the Confrontation Clause. The Confrontation Clause requires state courts as well as federal, to observe basic principles of fairness in admitting hearsay testimony. I do not see any possibility of unfairness when a state court admits an incriminating statement of a deceased co-conspirator made directly in the presence of and acknowledged and not disputed by the defendant when the truth of the incriminating statement is fully and completely corroborated by other independent evidence.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9473999. Public record. Not legal advice.