Petition for Writ of Certiorari — Seiter v. Fuson

85-1104

CASE NO.

In Che

Supreme Court of the United States

OCTOBER TERM, 1985

RICHARD P. SEITER, Director

Ohio Department of Rehabilitation and Correction

Petitioner,

V.

OT!IS LEE FUSON,

Respondent.

-————

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

PETITION FOR WRIT OF CERTIORARI

ANTHONY J. CELEBREZZE, JR.

Attorney General of Ohio

RICHARD DAVID DRAKE

| Counsel of Record

Assistant Attorney General

State Office Tower

30 East Broad Street, 10th Floor

Columbus, Ohio 43266

(614) 466-2980

ATTORNEYS FOR PETITIONER

—

QUESTION PRESENTED

WHETHER THE ADMISSION OF EXTRAJUDICIAL

STATEMENTS OF AN UNAVAILABLE DECLARANT

PURSUANT TO OHIO’S HEARSAY EXCEPTION

FOR STATEMENTS AGAINST PENAL INTEREST,

AS THAT EXCEPTION HAS BEEN AUTHORITA—

TIVELY CONSTRUED BY THE STATE JUDICIARY,

CCNSTITUTES A VIOLATION OF THE CONFRON—

TATION CLAUSE OF THE SIXTH AMENDMENT.

PARTIES

The petitioner in this action is Richard P. Seiter in

his official capacity as the Director of the Ohio Depart-

ment of Rehabilitation and Correction. The respondent

is Otis Lee Fuson.

TABLE OF CONTENTS

Page

UUVESTION PRESENTED.....................4.. l

ee Caw eae cues vauwevan ij

Poe oD 6 1

ne 1

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED............... ee

>iAtemen: OF THE CASE..................... 3

ARGUMENT IN SUPPORT OF

GRANTING CERTIORARI ................. 16

ert iriarnle OF SERVICE.................... 28

TABLE OF AUTHORITIES

Cases:

Bruton v. United States,

me wee Peo (eee)... ww. 13, 16, 17, 22, 23

Chambers v. Mississippi,

ae EA ys | 20

Donnelly v. United States,

288 U.S. 243 (1913)........ es ee

Dutton v. Evans,

400 U.S. 74 (1980)....... Yeo ee eee uae

Fuson v. Jago,

773 F.2d 55 (6th Cir. 1985) _...... RAT ee

New Mexico v. Earnest,

703 P. 2d 872 (1985), cert. granted,

US. . 9 AR >? | 26

Ohio v. Roberts.

448 U.S. 56 (1980)......... Prune fee ee

Sessex Peerage,

8 Eng. Rep. 1034 (1844)...... ore 20

iV

TABLE OF AUTHORITIES, cont'd

Page

State v. Young,

5 Ohio St. 3d 221, 450 N.E.

ee ee is oh oi UES Oy RAS KO 13

United States v. Garris,

616 F.2d 626 (2nd Cir. 1960)... . 2... we. 17

United States v. Harris,

ie Se re CU OF 6 6 'o 6868 os 8 20S 20

United States v. Matlock,

a CUE EE A so i 5 6 0400 4S ee 20

United States v. Palumbo,

GSO F.2e 12s tore Cir. VOB) . cc cc ccc, 16

United States v. Riley,

657 F.2d 1377 (8th Cir. 1981) ............ 16, 19

United States v. Robinson,

635 F.2d 363 (Sth Cir. 1981)... wes 17

Statutes and Rules:

ae USE, Des Fede nk vv ws ceca ewes ean ness 1

Arkansas Evidence Rule 804(b)(3) ................ 16

Federal Rule of Evidence 804(b)(3) ......... 14, 18, 21

Florida Evidence Code 90.804(2)(c)............... 16

Maine Evidence Rule 804(b)(3)................... 16

Nevada Revised Statute 51.345.................4.. 16

New Jersey Rule of Evidence 63(10)............... 16

North Dakota Evidence Rule 804(b)(3) ............ 16

Ohio Rule of Evidence 804(B)(3)............. passim

Other Authorities:

Comment, Federa/ Rule of Evidence 804(b)(3)

and Inculpatory Statements Against Penal

/nterest, 66 Calif. L. Rev. 1189 (1978)......... 19

TABLE OF AUTHORITIES, cont'd

Page

Comment, /nculpatory Statements Against Penal

Interest and the Confrontation Clause,

83 Columbia L. Rev. 159 (1983).............. 19

Jefferson, Declarations Against Interest: An

Exception to the Hearsay Rule, 58 Harv.

ia Oe OE ca ec. ee ee ee 20

McCormick, Evidence Section 278 (2d ed. 1972)..... 20

Model Code of Evidence Rule 509(1)(1942)......... 20

Notes of the Advisory Committee, Federal!

nes ie De. 5 ese eee 21, 22

Supreme Court Draft of the Federal Rules

of Evidence 56 F.R.D. 183 (1973) ............ 21

Tague, Peri/s of the Rulemaking Process: The

Development, Application, and Unconstitu-

tionality of Rule 804(b)(3)’s Penal Interest

Exception, 69 Geo. L.J. 851 (1981)........ 19, 20

Uniform Rules of Evidence Rule 63(10)

EE FE ki ee ee 20

Westen, The Future of Confrontation,

oe Wee. ©. Fee. FO Ce kk ns ove ee 19

Wigmore, 5 Evidence Section 1476

(Chadbourn Rev. ed. 1974).................. 20

DECISIONS BELOW

The decision of the United States Court of Appeals

for the Sixth Circuit is reported as Fuson v. Jago, 773 F.

2d 55 (6th Cir. 1985). (A-1). The decision of the United

States District Court for the Southern District of Ohio,

Eastern Division, is unreported. (A-15). The decision of

the Ohio Court of Appeals for the First Judicial District

is also unreported. (A-29).

JURISDICTION

The opinion of the United States Courts of Appeals

was entered on September 11, 1985. Jurisdiction is

conferred by 28 U.S.C. Section 1254/1).

CONSTITUTION AND STATUTORY

PROVISIONS INVOLVED

The case involves Section 1 of Amendment XiV to

the Constitution of the United States:

SECTION 1. All persons born or natural-

ized in the United States, and subject to

the jurisdiction thereof, are citizens of the:

United States and of the State wherein

they reside. No State shall make or

enforce any law which shall abridge the

privileges or immunities of citizens of the

United States; nor sha!! any State deprive

any person of life, liberty, or property,

without due process of law; nor deny to

any person within its jurisdiction the

equal protection of the jaws.

2

and Amendment VI to the Constitution of the United

States:

In all criminal ,-osecutions, the accused

shall enjoy the rght to a speedy and

public trial, by an impartial jury of the

State and district wherein the crime shall

have been committed, which district shal!

have been previously ascertained by law,

and to be informed of the nature and

cause of the accusation; to be confronted

with the witnesses against him; to have

compulsory process for obtaining

witnesses in his favor, and to have the

assistance of counsel for his defence.

This case also involves Rule 8U4(B)(3) of the Ohio

Rules of Evidence which provides:

(B) Hearsay Exceptions. The following

are not excluded by the hearsay rule if the

declarant is unavailable as a witness:

(3) Statement against interest. A state-

ment which was at the time of its making

so far contrary to the declarant’s

pecuniary or proprietary interest, or so far

tended to subject him to civil or criminai

liability, or to render invalid a claim by

him against another, that a reasonable

man in his position would not have made

the statement unless he believed it to be

true. A statement tending to expose the

declarant to criminal liability, whether

offered to exculpate or inculpate the

accused, is not admissible unless corrobo-

rating circumstances clearly indicate the

truthworthiness of the statement.

iN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1985

RICHARD P. SEITER, Director

Ohio Department of Rehabilitation and Correction

Petitioner,

Vv.

OTIS LEE FUSON,

Respondenit.

STATEMENT OF THE CASE

The instant case comes before this Court upon the

petition of the State of Ohio to review the decision of the

United States Court of Appeals for the Sixth Circuit in

Fuson v. Jago, 773 F.2d 55 (6th Cir. 1985). Therein, a

2—1 majority of the Court ordered that respondent be

released from custody unless retried for the crime of

aggravated burglary.

The facts which give rise to this controversy are

undisputed. The evidence demonstrated that on

December 12, 1981, in Cincinnati, Ohio, respondent Otis

Lee Fuson and his co-defendant Gary Martin burglarized

the apartment in which David Scheyer resided. Mr.

Scheyer’s neighbor, William Cook, lived in an adjacent

building. On the afternoon of December 12th, Mr. Cook

observed respondent boost Martin to the second floor

balcony of David Scheyer’s apartment. Moments later,

Martin jumped down to the ground. Two (2) or three (3)

a

minutes later, respondent and his accomplice returned.

Again, responderit boosted Martin up to the balcony.

Martin used a tire iron to break into the apartment

through the balcony door. Mr. Cook watched Martin

exit the Scheyer apartment, toss the tire iron to the

ground where respondent was standing, and jurnp down

once more.

Mr. Cook attempted to contact the security guard

for the apartment complex, but he was not at home. The

guard’s wife, however, telephoned the police. Meanwhile,

Mr. Cook returned to Scheyer’s apartment building in

search of the burglars. He witnessed respondent and

Martin drive their automobile directly in front of

Scheyer’s apartraent building. The burglars spotted Mr.

Cook, stared at him fo’ ten (10) to fifteen (15) seconds,

then soed away. Mr. Cook attempted to pursue them in

his car, but «hey eluded him. Mr. Cook, however, was

able to give the police accurate and detailed descriptions

of the burglars, their clothing, their automobile, and the

license nuriber. Within the hour, respondent and Martin

were halted by a police cruiser.

Inside of the passenger compartment of the car

driven by respondent and Martin, police officers found a

tire tool, a meat cleaver, two screwdrivers, a knife, and

a pair of gloves wrapped around a tire tool and a screw-

driver. Respondent and Martin were escorted to the

police station and were individually and positively

identified by the witness William Cook.

Upon his arrest, a piece of paper was removed

from respondent’s wallet. Written on the paper was

ihe name and telephone number of the burglary victim.

Respondent claimed that the payer was a mystery to him.

Subsequent to being identified as the burglars,

respondent and Martin were placed in a room together

for the purpose of joint interrogation. The pair were

advised of their right to silence and the presence of

counsel and both elected to waive those rights. The

arresting officer then propounded questions directed at

both respondent and Martin. At this juncture, Martin, in

respondent's presence, made statements which admitted

their joint participation in the burglary. As will be

hereinafter discussed, it is the admissior uf these state-

ments which constitutes the dispute in tl.¢ instant action.

Respondent and Martin were jointly indicted for

the crime of aggravated robbery. However, Martin died

prior to trial. It is undisputed that Martin thus became

“unavailable” to testify. Prior to trial, the defense filed

a motion in limine requesting that the trial court bar the

prosecution from admitting evidence regarding Martin’s

statements. Subsequent to hearing, the motion was

overruled.

Ai trial, the prosecution called the arresting officer

who testified in pertinent part as follows:

Q. Did you have occasion to see Mr.

Martin and Mr. Fuson back at

District 3?

A. Yes, | did.

MPR. VOLLMAN: [the prosecutor] Will

you please mark this for identification.

(A Notification of Rights form signed by

Otis Lee Fuson, Jr. was marked State’s

Exhibit No. 9 for identification. )

6

(A Notification of Rights form signed

by Gary Martin was marked State’s

Exhibit No. 10 for identification.)

Q. Officer, | will now show you what

have been marked for identification

purposes as State’s Exhibits Nos. 9

and 10. Can you identify what

these are?

A. Tes, sir.

Q. What are they?

A. Tuey are the forms of Waiver of

Rights that we would read and have

the people that we were talking to

sign.

Q. Let me ask you this, did you ask

these defendants, that is Martin and

Fuson, any questions?

A. Yes.

Q. Before you did that did you advise

them of their constitutional rights?

A. Yes, | did.

Q. Where did you so advise them?

A. Where at?

Q. Yes.

A. At the district. The defendants were

seated at the end of the table cuffed

to a bar there. Martin was sitting

three feet from this defendant in a

chair on the other side of the table.

Q Did you attempt to ask the defen-

dants any questions about their

involvement in this burglary?

A. Yes, | did.

QO. What questions did you direct to

the defendants when they were both

together at the district?

A. Well, | had brought all this stuff in

and | set it down on the table, not

the table that they were at but an-

other table, and i had taken my coat

off and left my stuff there, and then

| went over to both of them and |

advised them of their rights, and

then | directed my questions to Mr.

Martin, because Mr. Martin was the

one that | was charging with some of

this other stuff. | had more charges

on him. It was a crowbar, and this

was a tire tool——

MS. KAYE: [defense counsel] / will

object to anything that Martin said as

far as hearsay in this particular instance,

because he is not subject to cross-

examination.

THE COURT: | will overrule it. You may

note your exception for the record. Go

right ahead.

A. (Continued) Anyway, ! asked Mr.

Martin where the crowbar was that

they used to pry the patio door

open, and he said, ‘‘We didn’t use

that. We used the tire tool over

there.’’ | was a little surprised. | |

went and got it, and |! said, ‘‘ls

this the one that you used?”

He said, “‘Yes.’’

| asked him what they were doing,

what they were after. Then |

directed questions to both cf them. |

said, ‘‘Did you both go in.”’ Martin

said, ‘‘No. | went in and he helped

me up on the balcony or patio or

whatever,’’ and he pointed to the

defendant here, and | said, ‘‘Then

you were both breaking in.”’ He said,

“Te.

| directed that question to both of

them. | said, “‘You~ are’ both

admitting that you broke in?”’

Martin said. ““Yes, and this defendant

went like this (gesturing), and he

didn’t say he did or he GCidn't say

that he didn't.

MR. VOLLMAN: Thank you. You may

cross-examine.

7

The police officer went on to relate that the non-verbal

gesture which respondent made in response to the

question, ‘‘You are both admitting that you broke in?”

was an affirmative shrug.

Respondent chose to interpose an “‘aiibi’’ defense.

To that end, he called three (3) alibi witnesses consisting

of his sixteen (16) year old girlfriend, her mother, and

her sister. These obviously less than impartial witnesses

all stated that respondent was with them at the time cof

the burglary. As respondent nad several prior criminal

convictions for burglary, he quite prudently chose not to

testify and thereby open his character to impeachment

evidence. The jury apparently discounted respondent's

alibi defense and he was found guiity as charged.

Respondent thereafter perfected a timely appeal as

of right to the Ohio Court of Appeals for the First

Judicial District. As his sole assignment of error,

respondent asserted that the trial court had committed

error by allowing the admission of his deceased co

defendant's statements. Specifically, respondent alleged

that the admission of the statements violated the rule

against hearsay testimony and further violated the

Confrontation Clause of the Sixth Amendment.

The Ohio appellate court issued a unanimous

opinion affirming respondent’s conviction. (A-29). With

respect to the hearsay prong of respondent's claim, the

court expressiy ruled that ‘‘the statements were

admissible as an exception to the hearsay rules pursuant

to Evid. R. 804(B)(3) dealing with statements against

[penal] interest.” (A-30). Having rejected respondent's

evidentiary argument, the appellate court declined

10

to address the constitutional claim by stating ‘‘[w] e find

it unnecessary to consider this argument because any

violation of [respondent's] right to confrontation that

may have occurred was harmless error beyand a reason-

able doubt. . . [t] hat is, Martin’s statements were merely

cumulative of other overwhelming evidence against

[respondent] properly before the jury.] (A-31).

Respondent then sought review before the Supreme

Court of Ohio. The court, however, declined to exercise

its discretionary review authority.

Respondent thereafter filed a petition for writ of

habeas corpus with the United States District Court for

the Seuthern District of Ohio. The district court

correctly summarized the correct constitutional standard

by stating:

Gary Martin was unavailable to testify

at trial. The Court’s inquiry must focus,

then, on whether his statements bear the

requisite indicia of reliability to make

them admissible absent the opportunity

for cross-examination. The most

commonly accepted method of showing

that hearsay statements bear sufficient

indicia of reliability to satisfy the require-

ments of the confrontation clause is to

establish that they fall within some firmly

rooted exception to the hearsay rule.

lf the evidence does not fall within

such category, it must possess some other

particularized guarantee of trustworth-

iness. Ohio v. Roberts, 448 U.S. at 66.

(A-21).

LS

11

The State of Ohio asserted that the two-part criteria

articulated in Ohio v. Roberts, 448 U.S. 56 (1980)

was met in the instant case as the declarant Martin

was unavailable and that his otherwise inadmissible hear-

say statements fel! within the exception for statements

against penal interest as codified in Rule 804(B)(3)

of the Ohio Rules of Evidence. Without so much as

making reference to the penal interest exception or Rule

804(B)(3) as that provision had been earlier applied to

respondent’s case by the Ohio Court of Appeals, the

district court stated that ‘[t]he Court concludes that

the hearsay evidence introduced at [respondent’s]| trial

does not fall within a well established exception to the

hearsay rule.”” (A-25). The district court went on to

hold that respondent’s non-verbal affirmation of Martin's

statements did not qualify as an adoptive or ratified

confession. ‘the court thus granted the writ of habeas

corpus and ordered respondent released from his state

court conviction.

An appeal was thereafter perfected to the United

States Court of Appeals for the Sixth Circuit. Sub-

sequent to briefing and argument, the circuit court issued

a 2—1 decision holding that respondent's rights under

the Confrontation Clause of the Sixth Amendment had

been violated by the admission of Martin’s out of court

statements. (A-1). The majority acknowledged that

“(t]he Ohio Court of Appeals affirmed [respondent's]

conviction, ruling that Officer Lee’s testimony about

Martin's confession was admissible hearsay as a statement

against penal interest under Ohic Rules of Evidence

804(B)(3).’’ (A-5). However, the majority chose to ignore

the authoritative interpretation by the state judiciary.

In discounting the state appellate court’s application of

12

the Ohio evidentiary principle to respondent's conviction,

the circuit court majority purported to rely upon a ‘‘staff

note’ to Rule 804(B)(3) and stated:

The state contends that Martin’s confes-

sion falls within the ambit of Ohio Rule

804(B)(3) and otherwise bears indicia

of reliability. We do not agree. As

observed in the staff note for Ohio Rule

804(B)(3), ‘a statement (confession)

admitting guilt and implicating another

person in the same crime, and made

while in custody, might well be motivated

by a desire to curry favor with the

authorities and, hence, fail to qualify

as being against interest.’’ Ohio Rev. Code

/.nn. Ev. R. 804, staff note, p. 411 (Page

1984) (emphasis in original). (A-10).

However, the reliance of the lower court majority upon

the ‘‘staff note’’ quoted above is wholly misplaced as the

quotation is taken completely out of context. The actual

language reads as follows:

In Bruton v. United States (1968), 391

US 123, 20 LEd2d 476, 88 SCt 1620,

the Supreme Court held that an out-of-

court confession (declaration against

penal interest) which implicated the

declarant (a co-defendant) could not be

used to implicate defendant criminally.

One reason for the Bruton doctrine is

this: a statement (confession) admitting

guilt and implicating another person in

the same crime, and made while in

custody, might well be motivated by a

eee

desire to curry favor with the authorities

and, hence, fail to qualify as being against

interest.

The language relied upon by the majority is thus simply a

reading of this Court’s opinion in Bruton v. United

States, 391 U.S. 123 (1968) and can in no way be casi as

an intended limitation upon the plain and unequivocal

language of the rule itself. '

The ‘‘staff note’ aside, the majority purported to

find support in its novel interpretation of Rule 804(B)(3)

by reference to the decision in State v. Young, 5 Ohio St.

3d 221, 450 N.E. 2d 1143 (1983). Again, however, such

reliance is illusory of the seven (7) Justices of the

Supreme Court of Ohio, the five (5) member majority did

not so much as allude to Rule 804(B)(3). While one

Justice authored a separate opinion which supports the

limitation upon the rule which was stated by the circuit

court majority, it is equally true that the remaining

Justice rejected the concurring opinion’s rationale. State

v. Young, 5 Ohio St. 3d 221, 228, 450 N.E. 2d 1143,

1149 (1983) (opinion of Homes, J.).

Relying only upon the exerpted portion of the

‘staff note’’ and a concurring opinion embraced by but

one Justice of the seven (7) member Supreme Court of

1

Such is not to say that an Ohio judge would in any and al! instances

allow the admission of extrajudicial statements which facially meet the

requisites of Rule 804(B)(3). Where, for instance, a custodial statement

against penal interest 1s made under circumstances which betray an obvious

effort to defray guilt or otherwise curry favor with law enforcement

officials, a state court might well exclude the statement as inherently

unreliable. Such, however, is not the case herein and, more importantly, the

circuit majority has erected an inflexibie barrier barring the admission of a//

statements against penal interest, no matter their overwhelming reliability,

when such statements are made in a custodial setting.

14

Ohio, the circuit court majority rejected the authoritative

interpretation of the Ohio judiciary in respondent's case

and stated, ‘’{t] hus, we cannot, as urged by the state,

conclude that Martin’s statements clearly fall within the

ambit of the hearsay exception established by Ohio Rule

of Evidence 804(B)(3). (A-11). A federal court can only

vacate a presumptively valid state court conviction upon

a finding that the petitioner in a habeas corpus action is

detained in violation of the Constitution. See 28 U.S.C.

2241(c)(3). Rather than ruling upon respondent's

Confrontation Clause claim in light of the Ohio Court of

Appeal’s authoritative interpretation of Rule 804(B)(3),

the majority below actually created the supposed

constitutional deprivation by reinterpreting the

evidentiary rule so as to exempt all custodial statements

from its ambit. While a federal circuit court might well

be privileged to construe Rule 804(b)(3) of the Federal

Rules ot Evidence [the federal counterpart to Ohio's

penal interest exception] in such a restrictive manner,

the federal judiciary clearly has no such ‘‘supervisory’’

authority over a State's judiciary.

The issue before the court below was whether Rule

804(B)(3) of the Ohio Rules of Evidence, as authorita

tively interpreted by the Ohio judiciary and applied to

respondent's case, resulted in the admission of statements

in violation of the Confrontation Clause of the Sixth

Amendment. Rather than reaching this sole question, the

majority in essence rendered a supervisory ruling as to the

“correct” construction of the rule which, under the

Supremacy Clause, is presumptively binding upon all

state court judges. This unparralled breach of federalism |

and intrusion into state evidentiary principles, standing

alone, warrants the exercise of this Court’s discretionary

review upon writ of certiorari.

ei

The error of the majority below was aptly stated by

Circuit Judge Merritt. In his dissenting opinion, Judge

Merritt stated in pertinent part that:

In this habeas corpus case collaterally

attacking petitioner’s Ohio burglary

conviction, | do not agree with the Court

that state court admission of deceased co

conspirator Martin's incriminating state

ment made in_ petitioner's presence

violated the Confrontation Clause.

Martin’s statement is reliable because it

expressly admits that both participated in

the crime — — and hence /s a statement

against Martin’s pena! 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 Confronta

tion Clause requires state courts as well as

federal, to observe basic principles of

fairness in admitting hearsay testimony. |

do not see any possibility of unfairness

when a state court admits an incriminat

ing statement of a deceased co-conspira-

tor 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. (emphasis added).

(A-13, 14).

16

The State of Ohio now petitions this CouTt to

review the judgment of the court below and, in that

process, resolve a question expressly reserved in an earlier

opinion of this Cm * See Bruton v. United States, 391

U.S. 123, 128 1968) wherein this Court stated,

“lt]}here is not oetore us, therefore, any recognized

[penal interest] exception to the hearsay rule . . . and

we intimate no view whatever that such exceptions

necessarily raise questions under the Confrontation

Clause.”

ARGUMENT IN SUPPORT OF

GRANTING CERTIORARI

The instant case presents a substantial issue of

national importance regarding the Confrontation Clause

of the Sixth Amendment. The question is whether,

consistent with the Confrontation Clause, the extra

judicial statements of an unavailable declarant may be

admitted against an accused where, at the time of their

making, the declarant was aware that such statements:

would subject him to criminal liability. The issue is of

national scope as almost all jurisdictions have embraced

the penal interest exception to the rule against hearsay *

The question has also resulted in a division of opinion

among the federal circuit courts. Compare e.g., United

States v. Riley, 657 F.2d 1377 (8th Cir. 1981); United

States v. Palumbo, 639 F.2d 123 (3rd Cir. 1981) [penal

interest exception inapplicable to custodial statements

2 it appears that only six (6) States do not recognize the exception

See Arkansas Evidence Rule 804(b)(3); Florida Evidence Code 90.5 )4(2)

(c); Maine Evidence Rule 804(b)(3); Nevada Revised Statute 51.34% (1979)

New Jersey Rule of Evidence 63 (10); North Dakota Evidence Rue 804(b)

(3)

ee

17

as sucn Geciaratisns ‘neid to ‘be not inherently refabie|

with e.g., United States v. Robinson, 635 F.2d 363 (5th

Cir. 1981) [statements of accomplice made to law

enforcement officials after giving of Miranda warnings

admissible pursuant to penal interest exception and

consistent with the Confrontation Clause] ; United States

v. Garris, 616 F.2d 626 (2nd Cir. 1980) [statements of

declarant made while in custody admissible pursuant to

penal interest exception]. Finally, the instant case

presents an ideal vehicle for this court to re-examine the

holding in Bruton v. United States, 391 U.S. 123 (1968)

in view of the subsequent enactment of the penal interest

exception to the prohibition against hearsay.

A. The Evolution Of The Hearsay Exception

For Statements Against Penal Interest.

Rule 804(B)(3) of the Ohio Rules of Evidence

provides as follows:

(B) Hearsay Exceptions. The following are

not excluded by the hearsay rule if the

declarant is unavailable as a witness:

(3) Statement against interest. A statement

which was at the time of its making so

far contrary to the declarant’s pecuniary

or proprietary interest, or so far tended

to subject him to civil or criminal liabil-

ity, Or to render invalid a claim by him

against another, that a reasonable man in

his position would not have made the

Statement unle$ he believed it to be true.

18

A statement tending to expose the

declarant to criminal liability, whether

offered to exculpate or inculpate the

The federal counterpart, Rule 804(b)(3) of the Federal!

accused, is not admissible unless corrob-

Orating circumstances clearly indicate the

trustworthiness of the — statement.

[emphasis added]

Rules of Evidence provides that:

(b) Hearsay exceptions. The following are not

(3)

The sole distinction between the Ohio and the

Federal Rule is that the Ohio Rule provides that an

excluded by the hearsay rule if the

declarant is unavailable as a witness:

Statement against interest. A statement

which at the time of its making so far

contrary to the declarant’s pecuniary or

proprietary interest, or so far tended to

subject him to civil or criminal liability,

or to render invalid a claim by him against

another, that a reasonable man in his

position would not have made the state-

ment unless he believed it to be true. A

statement tending to expose the declarant

to criminal liability and offered to

exculpate the accused is not admissible

uniess corroborating circumstances clearly

indicate the trustworthiness of the state-

ment.

4a

exculpatory or an inculpatory statement is not

admissible unless corroborating circumstances clearly

indicate the trustworthiness of the statement.’’ The

Federal Rule mandates a ‘‘corroboration requirement’

only where the statement offered is exculpatory in

nature.? It is undisputed that any corroboration require-

ment was met in the instant case.*

The evolution co* the penal interest exception to the

hearsay rule was both long and convoluted.° While state-

ments against pecuniary and proprietary interest were

3 In an effort to avoid perceived equal protection and due process

problems, various federal circuits have simply read 2 ‘‘corroboration require-

ment’ into the inculpatory statement portion ot the ruie. See e.g., United

States v. Riley, 657 F.2d 1377, 1383 n. 7 (8th Cir. 1981) and authorities

cited therein.

ws Respondent was arrested within an hour of the burglary in the

vehicle used during the commission of the crime. Respondent was in the

company of a self-confessed participant in the crime and the car contained

the instrumentalities of the crime. Respondent's wailet contained a piece of

paper bearing the name and telephone number of the victim. Finally,

respondent was, within hours of the burglary, positively identified as a

participant by an impartial eyewitness who had an exceedingly good

opportunity to view both burglars. Moreover, while the statement was made

in police custody, it was made in respondent's presence and, at the time of

its making, the declarant Gary Martin was not attempting to ‘‘make a deal”’

or otherwise curry favor with the authorities. Martin’s statement is identical

to the eyewitness account of the events and, if anything, characterizes him

self as the more culpable of the two as Martin stated that it was he rather

than the respondent who aciually entered the victim’s home.

5 Professor Peter W. Tague has authored a comprehensive review of

the penal interest exception and its derivation. See Tague. Peri/s of the

Rulemaking Process: The Development, Application, and Unconstitution-

ality of Rule 804(b)(3)’s Penal Interest Exception, 69 Geo. L.J. 851-1013

(1981). [hereinafter Tague] See also, Comment, Federa/ Rule of Evidence

804(b)(3) and Inculpatory Statements Against Penal Interest, 66 Calif. L.

Rev. 1189 (1978); Westen, The Future of Confrontation, 77 Mich. L. Rev.

1185 (1979); Comment, /nculpatory Statements Age. ost Penal Interest and

20

recognized at common law as an exception to the rule

against hearsay, the penal interest exception was rejected.

The outright rejection of the penal interest exception can

be traced to the English decision in Sessex Peerage, 8

Eng. Rep. 1034 (1844). See Tague, 69 Geo. L.J. at 859-

861. Without analysis, American courts by and large

adopted the Sussex Peerage decision.© Such adherence

culminated with the decision in Donnelly v. United

States, 288 U.S. 243 (1913) wherein, despite the

persuasive dissent of Justice Holmes, this Court rejected

the penal interest exception.

In the passage of time, various States and ‘’model

codes’ adopted the penal interest exception. The

Advisory Committee included the exception in its 1969

Preliminary Draft of the Federal Rules of Evidence. Sub-

sequently, this Court recognized the exception in a series

of opiniors. See United States v. Matlock, 415 U.S. 164,

176-177 (1974); Chambers v. Mississippi, 410 U.S. 284,

302 (1973); United States v. Harris, 403 U.S. 573, 583-

584 (1971); Dutton v. Evans, 400 U.S. 74, 83, 87-89

(1970).

Footnote 5 continued:

\

the Confrontation Clause, 83 Columbia L. Rev. 159 (1983). It is fair to state

that the commentators are in marked disagreement as to both the derivation

and application of the penal interest exception.

6 Such adoption came despite vehement protests by prominent

scholars. See 5 Wigmore, Evidence Section 1476, at 351 (Cr-dbourn Rev.

ed. 1974); McCormick, Evidence Section 278 at 674 (2d ed. 1972). See also,

Jefferson, Declarations Against Interest: An Exception to the Hearsay Rule,

58 Harv. L. Rev. 1, 39-43 (1944)

} See Mode! Code of Evidence, Rule 509(1) (19642); Uniform Rule of

Evidence, Rule 63 (10) (supe. seded 1975).

21

This Court promulgated the Supreme Court Draft of

the Federal Rules of Evidence [56 F.R.D. 183 (1973)!

and thereafter transmitted it to Congress. See 409 U.S.

1132 (1973). The draft of Rule 804(b)(3) was sub-

stantially identical to that eventually enacted and sub-

sequent to House-Senate approval became effective

July 1, 1975.8 The Notes of the Advisory Committee

explain inclusion of the penal interest exception as

follows:

Exception (3). The circumstantial

guaranty of reliability for declarations

against interest is the assumption that

persons do not make statements which

are damaging to themselves unless

satisfied for good reason that they are

true. Hileman v. Northwest Engineering

Co., 346 F.2d 668 (6th Cir. 1965).

The exception discards the common law

limitation and expands to the full logical

limit.

The refusal of the common law to

concede the adequacy of a penal interes:

was no doubt indefensible in logic, see the

dissent of Mr. Justice Holmes in Donnel/y

v. United States, 228 U.S. 243, 33 S. Ct.

449, 57 L. Ed. 820 (1913).

8

By this time the majority of States had adopted a penai interest

exception. The Ohio Rules of Evidence became effective July 1, 1973

22

The foregoing demonstrates that the common law

refusal to recognize the penal interest exception was

quite simply an unreasoned anomoly in the history of

jurisprudence. Neither case law nor commentators have

offered an explanation as to why a declarant would

arguably be more prone to fabrication when his freedom

rather than his purse is at stake. Indeed, human

experience dictates the contrary. While being

impecunious has little with which to commend itself,

such condition pales in comparison with the stark reality

of iron bars.

In referring to Rule 804(b)(3), the Advisory

Cornmittee stated that ‘’[t] he rule does not purport to

deal with questions of the right of confrontation.”’ It is

to that issue that the following argument is addressed.

B. The Facial Tension Between The Penal

Interest Exception And Bruton v. United

States, 391 U.S. 123 (1968) And The

Resolution Of Such Friction In Light Of

Ohio v. Roberts, 448 U.S. 56 (1980).

In Bruton v. United States, 391 U.S. 123, (1968),

this Court held the admission of a confession by a non-

testifying [unavailable] defendant which implicated the

co-defendant violated the Confrontation Clause of the

Sixth Amendment in that the co-defendant could not

confront [cross-examine] the unavailable declarant. At

first blush Bruton is analylically indistinguishabie from

the instant case. However, closer scrutiny reveals that the

very rationale of Bruton, i.e., that the confession was

inadmissible hearsay as against Bruton, is absent from the

herein action. In Bruton, the majority stressed that:

We emphasize that the hearsay statement

inculpating petitioner was clearly inad-

missible against him under traditional

rules of evidence. . .

There is not before us, therefore, any

recognized exception to the hearsay rule

insofar as petitioner is concerned and we

intimate no view that such exceptions

necessarily raise questions under the

Confrontation Clause. 391 U.S. at 128

n.3. [emphasis added] .

Of course, the penal interest exception has since

been recognized and embodied in Rule 803(b)(3). The

obvious question is thus whether recognition of the penal

interest exception alters the Bruton result. Reference to

the decision in Ohio v. Roberts, 448 U.S. 56 (1980)

demonstrates that the answer must be in the affirmative.

In Ohio v. Roberts, supra, the Court resolved the

“hearsay exception — Confrontation Clause’ dilema as

follows:

The Court here is called upon to consider

Once again the relationship between the

Confrontation Clause and the hearsay rule

with its many exceptions. The basic rule

against hearsay, of course, is riddled

with exceptions developed over three

centuries. See E. Cleary, McCormick on

Evidence Section 244 (2d ed. 1972)

(McCormick) (history of rule); id.,

24

Sections 252-324 (exceptions). These

exceptions vary among jurisdictions as to

number, nature, and detail. See, e.g., Fed.

Rules Evid. €03, 804 (over 20 specified

exceptions).

The Sixth Amendment's Confrontation

Clause, made applicable to the States

through the Fourteenth Amenrment,

Pointer v. Texas, 380 US 400, 4J3-

405, 13 Lt Ed 2d 923, 85 S Ct 1065

(1965): Davis v. Alaska, 415 US

(“‘{T] here could be nothing more direct!y

contrary to the letter of the provision in

question than the admission of dying

declarations’). But, if thus applied, the

Clause would abrogate virtually every

hearsay exception, a result long rejected

as unintended and too extreme.

This Court, in a series of cases, has sought

to accommodate these competing

interests. True to the common-law tradi-

tion, the process has been gradual,

building on past decision, drawing on new

experience, and responding to changing

conditions. The Court has not sought to

‘map out a theory of the Confrontation

Clause that would determine the validity

of all. . hearsay ‘exceptions.’ ‘’ California

25

v Green, 399 US, at 162 26 L Ed 2c 489,

90 S Ct 1930. But a general approach to

the problem is discernible.

The Confrontation Clause operates in two

separate ways to restrict the range of

admissible hearsay. First, in conformance

with the Framers’ preference for face-to-

face accusation, the Sixth Amendment

establishes a rule of necessity. In the usual

case -(including cases where prior cross-

examination has occurred), the prosecu-

tion must either produce, or demonstrate

the unavailability of, the declarant whose

statement it wishes to use against the

defendant.

The Court has applied this “‘indicia of

reliability’’ requirement principally by

concluding that certain hearsay

exceptions rest upon such solid founda-

tions that admission of virtually any

evidence within them comports with the

‘substance of the constitutiona! protec-

tion.’’ Mattox v United States, 156 US,

at 244, 39 L Ed 409, 15 S Ct 337. This

reflects the truism that ‘‘hearsay rules and

the Confrontation Clause are generally

designed to protect cimilar values,”

California v Green, 399 US, at 155, 26

L Ed 2d 489, 90 S Ct 1930, and ‘’stem

from the same roots,’ Dutton v Evans,

26

400 US 74, 86, 27 L Ed 2d 213, 91S

Ct 210 (1970). It also responds to the

need for certainty in the workaday world

of conducting criminal trials.

In sum, when a hearsay declarant is not

present for cross-examination at trial,

the Confrontation Clause normally

requires a showing that he is unavailable.

Even then, his statement is admissible

only if it bears adequate ‘‘indicia of

reliability.’ Reliability can be inferred

without more in a case where the evidence

falls within a firmly rooted hearsay excep-

tion. \In other cases, the evidence must be

excluded, at least absent a showing of

particularized guarantees of trustworth-

iness. 448 U.S. at 62-66. [emphasis

added]. [footnotes omitted] .

The Court thus held that admissibility of extra-

judicial statement consistent with the Confrontation

Clause requires a showing that the declarant is both

unavailable and that the out of court statements were

made under such circumstances that the declarant would

not reasonably speak faisly. The penal interest exception

as incorporated by Rule 804(B)(3) is, of course, nothing

less than a judicial and legislative determination that

humans do not reasonably make false statements which

will result in their incarceration.

This Court has only recently chosen to review a

decision which presents an issue similar to that herein.

See New Mexico v. Earnest, 703 P. 2d 872 (1985), cert.

granted, U.S.

54 L.W. 3270. As the instant

27

controversy presents an even more compelling case for

review, a petition for writ of certiorari should be granted

in order to review the lower court judgment and resolve

the conflict in the federal circuits.

Respectfully submitted,

ANTHONY J. CELEBREZZE, JR.

Attorney General cf Ohio

RICHARD DAVID DRAKE

Counsel of Record

Assistant Attorney General

State Office Tower

30 East Broad Street, 10th Floor

Columbus, Ohie 43266

(614) 466-2980

ATTORNEYS FOR PETITIONER

28

CERTIFICATE OF ScRVICE

| hereby certify that the requisite number of copies

of the foregoing Petition for Writ of Certiorar! have been

served on respondent, Otis Lee Fuson, by forwarding

such copies through the office of his counsel, John W.

Vandeilen, Attorney at Law, 1018 Adams Street, Toledo,

Ohio 43624, by United States Mail, postpaid, this 23rd

day of December 1985. | further certify that all parties

required to be served have been so served.

RICHARD DAVID DRAKE

Assistant Attorney General

APPENDIX

Page

Opinion, September 11, 1985, United States

Court of Appeals for the Sixth Circuit,

Fuson v. Jago, 773 F.2d 55 (6th Cir. 1985) ... .A-1

Opinion, April 16, 1984, United States Cistrict

Court for the Southern District of Ohio ...... A-15

Opinion, February 9, 1983, Ohio Court of

Appeals for the First Judicial District........ A-29

A-1

No. 84-3403

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

OTIS LEE FUSON,

Petitioner-Appel/lee

A. R. JAGO,

Respondent-Appel/ant.

ON APPEAL from the United States District

Court for the Southern District of Ohio.

Decided and Filed September 11, 1985

Before KEITH, MERRITT and JONES, Circuit

Judges.

KEITH, Circuit Judge, delivered the opinion of the

Court, inwhich JONES, Circuit Judge, joined. MERRITT

Circuit Judge, (p. 13) delivered a separate dissenting

opinion.

KEITH, Circuit Judge. The Respondent-Appellant,

A. R. Jago, acting on behalf of the State of Ohio as the

Superintendent of the London Correction Institution

appeals a district court order granting a writ of habeas

corpus to the Petitioner-Appeliee, Otis Lee Fuson, Jr.

The petitioner is presently in the custody of the respon

dent serving a four to twenty-five year prison sentence he

received pursuant to a conviction on one count Oj aggra

vated burglary in violation of O.R.C. Section 2911.11

A-2

Upon consideration of the petitioner’s petition for

writ of habeas corpus, the United States District Court

for the Southern District of Ohio concluded that the

admission of a deceased codefendant’s oral statement,

which incriminated himself and the petitioner and which

was made without oath during post-arrest, custodiai

interrogation, vioiated the petitioner’s sixth amendment

right to confrontation. We conclude the district court

judgment granting the writ should be affirmed for the

reasons set forth beiow.

FACTS

William Cook testified at the petitioner’s jury trial

that on December 12, 1981 he observed the petitioner

hoist the deceased codefendant, Gary Martin, onto a

neighbo,’s second floor balcony. After Martin inspected

the premises, he jumped to the ground and the two men

walked away. A few minutes later the petitioner and

Martin returned. The petitioner again boosted Martin

up to the balcony. As Martin broke the latch on the

balcony door and entered the apartment, the petitioner

ran around to the side of the apartment building. Shortly

thereafter, Martin emerged through the balcony door

carrying a tire iron or crowbar which he threw to the

ground before jumping down.

Cook testified that afte; observing these activities

he summoned a security guard and then canvassed the

apartment complex in search of the defendants. As

Cook returned to his driveway, he recognized the peti-

tioner and Martin from their clothing as they coasted

up to him in acar. The defendants looked at Cook for

ten seconds and then Martin drove the car out of the

apartment complex. Cook reported to police the license

number of the car and described the defendants, their

activities and the car, a green Gremlin.

A-3

An hour later, police officer Jerry Lee spotted such

a vehicle, pulled it over and, with the aid of three other

patro! cars, apprehended the petitioner and Martin in

what was later established as Martin’s car. The police

search of the car yielded, among several items, a tire iron.

Martin and the petitioner were subsequently arrested.

At the police station, Officer Gary Watson advised

the petitioner of his constitutional rights and conducted

a search of the petitioner’s belongings. The officer

testified that he found in the petitioner’s wallet a piece

of paper with the name ‘’Dave”’ and a telephone number

belonging to Dave Scheyer, the resident of the burglarized

apartment. Upon questioning, the petitioner denied

knowing Scheyer and denied that the slip of paper had

been found in his wallet. Officer Watson testified that

upon further questioning, the petitioner also denied

knowledge of the burglary or ever being at the sight

of the crime.

Officer Lee testified at trial that he advised the

defendants of their rights prior to questioning them

together at the police station. The officer testified that

he was surprised when in response to his question about

the use of a crowbar to open the balcony door, Martin

replied that he had used the tire iron found in his car by

the police. Officer Lee, at this point addressing questions

to both defendants, asked if both of them had entered

the apartment. Martin answered that only he had entered

the apartment but that the petitioner had helped him get

onto the balcony. Officer Lee asked, ‘’then you both

were breaking in’’; Martin replied, ‘‘yes’’. The petitioner

volunteered no response to this query except to shrug his

shoulders.

.

A-4

Prior to trial, codefendant Gary Martin committed

suicide. Thereafter, counsel for the petitioner filed a

motion in limine requesting the trial court to bar the

prosecution from introducing evidence of Martin’s

confession at trial. After a hearing held March 4, 1982,

the trial court overruled the petitioner’s motion in limine

on the ground that Martin’s statements were admissible

under Ohio Rule of Evidence 801(D)({2)(e) providing for

the admission of a co-conspirator’s statements made in

furtherance of the conspiracy.

At trial, the defense presented three aiibi witnesses.

Becky Magnuson, a housemate of the defendant, testified

that on the day of the burglary, the petitioner had

returned home from work sometime between 12:00 ard

12:30 p.m. and that he remained at home with her family

until he was picked up by Gary Martin between 4:15 and

4:30 p.m. Ms. Magnuson testified that she did not hear

from him again until later that evening, when he called

from the police station. On cross-examination, she

admitted that she had not told police of the petitioner's

whereabouts that afternoon, but had discussed it with

defense counsel the day before trial.

Rhonda Earls, Becky Magnuson’s sister and the

petitioner’s girlfriend, also testified that the petitioner

had come home from work between 12:00 and 12:30

p.m. and was at home with her all afternoon until Gary

Martin picked him up at 4:30 p.m.

Dorothy Wessler, mother of Earls and Magnuson and

resident manager of the apartment where the petitioner

roomed, testified that when she awoke at 2:00 p.m. on

the afternoon of December 12th, the petitioner was

home at that time. Wessler stated that he stayed at the

apartment until Gary Martin picked him up later that

afternoon. The jury subsequently returned a verdict of

guilty On One count oT aggravated burglary, and the court

sentenced the petitioner to a four to twenty-five year

term of imprisonment.

The petitioner appealed his conviction to the Ohio

Court of Appeals on the ground that the admission of

hearsay testimony about Martin’s incriminating state-

ments violated the petitioner’s sixth amendment right to

confrontation. The Ohio Court of Appeals affirmed the

conviction, ruling that Officer Lee’s testimony about

Martin’s confession was admissible hearsay as a state-

ment against pena! interest under Ohio Rule of Evidence

804(B)(3). The court further concluded that it was not

required to address the sixth amendment violation alleged

by the petitioner since any error in the admission of

Officer Lee’s testimony was harmless in light of othe:

overwhelming evidence submitted against the petitioner.

The t etitioner thereafter filed in the Supreme Court

of Ohio a memorandum in support of jurisdiction alleging

the same sixth amendment violation. In amemorandum

in Opposition to jurisdiction, the state argued that the

Supreme Court should deciine review of the petitioner's

claim on three grounds: (1) Officer Lee’s hearsay testi-

mony was admissible under Ohio Rule of Evidence 804

(B)(3) because Martin’s statements were aginst pena!

interest; (2) the testimony was admissible under Ohio

Rule of Evidence 801(D)(2)(b) because the petitioner

effectively adopted Martin’s confession; and (3) any

error from admitting testimony about Martin’s confes-

sion was harmless beyond a reasonable doubt. On

June 8, 1983, the Ohio Supreme Court denied the

petitioner leave to appeal from the Ohio Court of

Appeals judgment affirming his conviction.

0

A-6

On December 20, 1983, the petitioner filed a peti-

tion for writ of habeas corpus in the United States

District Court for the Southern District of Ohio again

alleging that the admission of hearsay testimony about

Martin’s confession violated his right to confrontation.

The district court found that Officer Lee’s hearsay

testimony did not fall within an established exception to

the hearsay rule; that the petitioner did not adopt

Martin’s statements by shrugging his shoulders when

asked to confirm them; and that the circumstances of

Martin’s confession carried no particularized guarantees

of trustworthiness and were in several respects inherently

unreliable. The court concluded that in light of the alibi

witness testimony presented at trial, admission of Officer

Lee’s testimony was not harmless error beyond a

reasonable doubt. The district court granted Fuson’s

petition for writ of habeas corpus on April 16, 1984.

DISCUSSION

The sixth amendment’s confrontation clause! does

not preclude the admission of all out of court statements.

Mattox v. United States, 156 U.S. 237, 242-44 (1895);

United States v. Licavoli, 725 F.2d 1040, 1049 (6th Cir.),

cert. denied, 104 S. Ct. 3535 (1984). The legitimate use

of hearsay testimony when the declarant is not present

for cross-examination requires a showing that the declarant

is unavailable and that his statements bear adequate “‘indi-

cia of reliability’. Ohio v. Roberts, 448 U.S. 56, 66 (1980);

1 The Sixth Amendment provides: “In ali criminal prosecutions the

accused shall enjoy the right .. . to be confronted with the witnesses against

him.” U.S. CONST. amend. Vi; Pointer v. Texas, 380 U.S. 400, 403-405

(1965).

a

Stevens v. Bordenkircher, 746 F.2d 342, 347 (6th Cir.

1984); United States v. Licavoli, 725 F.2d at 1049.

If the hearsay testimony falls within an estabiished

hearsay exception, its reliability can be inferred. Oh/so

v. Roberts, 448 U.S. at 66. If, however, an established

exception to the hearsay rule does not apply, ‘the

[hearsay testimony] must be exciuded, at least absent

a showing of particularized guarantees of trustworthi-

ness’’. /d.

We note at the outset the well established rule that

habeas review does not ordinarily extend to state court

rulings on the admissibility of evidence. Burgett v. Texas,

389 U.S. 109, 113-14 (1967); Walker v. Engle, 703 F.2d

959, 962 (6th Cir.), cert. denied, 104 S.Ct. 396 (1983);

Bell v. Arn, 536 F.2d 123, 125 (6th Cir. 1976). However,

where erroneous application of state law deprives a

petitioner of fundamental constitutional guarantees, a

fedei'al court will inquire into the state ruling on habeas

review. Donnelly v. DeChristoforo, 416 U.S. 637, 642-43

(1974); Walker v. Engle, 703 F.2d at 962; Bel/ v. Arn,

536 F.2d at 125. We conclude that the erroneous ad-

mission of Officer Lee’s testimony about codefendant

Martin’s confession violated the petitioner’s sixth amend-

ment right to confrontation.

l.

Hearsay Exceptions

Martin was clearly unavailable to testify at the peti-

tioner’s trial. As noted above, the inquiry focuses next

upon the reliability: of the deceased declarant’s state-

ments which may be inferred from an applicable hearsay

exception.

eee

(a) Hearsay Exception for Co-Conspirator

Statements Ohio Rule of Evidence 801(D)(2)(e)

The trial court admitted Officer Lee’s hearsay testimony

under Ohio Rule of Evidence 801(D)(2){e)? which

provides a hearsay exception for statements made by a

co-conspiratcr during the course and in furtherance of

the conspiracy. Although this rule states a hearsay excep-

tion which is also well established under the Federal

Rules of Evidence, we must conclude that it does not

apply to Martin’s confession. Under the state and federal

exceptions, upon a showing by independnet evidence of a

conspiracy among codefendants, out of court statements

by one conspirator are admissible against the other

conspirator if they are made during the course of and in

furtherance of the conspiracy. United States v. Nixon,

418 U.S. 683, 701 (1974); United States v. McLernon,

746 F.2d 1098, 1105 (6th Cir. 1984); State v. She/ton,

51 Ohio St. 2d 68, 72, 364 N.E.2d 1152, 1155 (1977).

Martin’s responses to Officer Lee’s questions amounted

to a custodial confession and can under no circumstances

be construed as statciments to the petitioner during the

course of and in furtherance or conceaiment of their

2 Ohio Rule of Evidence 801(D)(2)(e), which parreils Rule 801 (d)

(2)(E) of the Federal Rules of Evidence, provides:

(D) Statements which are not hearsay. A statement is not hearsay

if

(2) Aamission by party-opponent. The statement is offered

against a party andis..

{e) a statement by a co-conspiratcr of a party during the course

and in furtherance of the conspiracy upon independent proof of the

conspiracy.

Onio Rev. Code Ann. Ev. R. 801 (Page 1984).

conspiracy to commit aggravated burglary. See State v.

Jones, 22 Ohio App. 2d 67, 69-70, 258 N.E. 2d 258,

259-60 (1970).

(b) Hearsay Exception for Statements Made Against

Penal Interest

Chio Rule of Evidence 804(B)(3)

The Ohio Court of Appeals ruled that Martin's

confession was admissible as a statement against pena!

interest under Ohio Rule of Evidence 804(B)(3) which

provides:

(B) Hearsay exceptions. The following are not

excluded by the hearsay rule if the declarant is

unavailable as a witness:

* * *

(3) Statement against interest. A statement

which was at the time of its making so far

contrary to the declarant’s pecuniary or pro-

prietary interest, orso far tended to subject him

to civil or criminal liability, or to render invalid a

claim by him against another, that a reasonable

man in his position would not have made the

statement unless he believed it to be true. A

statement tending to expose the declarant to

criminal liability, whether offered to exculpate

or inculpate the accused, is not admissible unless

corroborating circumstances clearly indicate the

trustworthiness of the statement.°

3 Ohio Rule of Evidence 804(B)(3) paraliels its federal counterpart,

Federal Rule of Evidence 804(b)(3). For a thorough discussion of the penal

interest exception, see Tague, Peri/s of the Rulemaking Process: The Develop-

ment, Application, and Unconstitutionality of Rule 804{b)(3)’s Penal

Interest Exception, 69 Geo. L. J. 851 (1981).

A-10

Ohio Rev. Code Ann. Ev. R. 804 (Page 1984). Under

Chio law, this exception applies to out of court declara-

tions by persons who are not parties to the action and

includes statements which subject the non-party

declarant to criminal liability. Ohio Rev. Code Ann. Ev.

R. 804, staff note, p. 411 (Page 1984). The rule requires

that a statement tending to expose the non-party

declarant to criminal liability, whether it is offered to

exculpate or inculpate a defendan:, ‘‘must be supported

by ‘corroborating circumstances’ to ‘clearly indicate the

trustworthiness of the statement.’ ”’ /d.

The state contends that Martin’s confession falls

within the ambit of Ohio Rule 804(B)(3) and other-

wise bears indicia of reliability. We do not agree. As

observed in the staff note for Ohio Rule 804(B)(3),

‘‘a statement (confession) admitting guilt and implicating

another person in the same crime, and made while in

custody, might well be motivated by a desire to curry

favor with the authorities and, hence, fail to qualify as

being against interest.” Ohio Rev. Code Ann. Ev. R.

804, staff note, p. 411 (Page 1984) (emphasis in original).

In a concurring opinion which addresses the application

of Rule 804(B)(3) to statements implicating codefen-

dants, Chief Justice Celebrezze reiterated the staff note

observation:

The question remains whether Mabry’s confession

falls within the hearsay exception of Evid. R. 804

(B)(3). Appellant suggests that because Mabry’s

confession was a statement tending ‘‘to expose

the declarant to criminal liability,’’ the confession

is admissible under this exception. | would agree

that the portion of Mabry’s confession in which

he implicated himself would be admissible under

this exception. However, any portion of Mabry’s

A-11

confession which implicated his co-defendants

would not be a statement against Mabry’s interest

and, hence, would not be admissible under this

exception. Thus, contrary to appellant’s position,

Mabry’s confession, in its entirety, is not

admissible under any recognized exception to the

hearsay rule as embodied in this state’s Rules of

Evidence.

State v. Young, 5 Ohio St. 3d 221, 227-28, 450 N.E. 2d

1143, 1149 (1983) (emphasis in original).

Thus, we cannot, as urged by the state, conclude

that Martin's statements ciearly fall within the ambit of

the hearsay exception established by Ohio Rule of

Evidence 804(B)(3). Nor do we believe the conditions

under which Martin made his confession ‘‘clearly indicate

the trustworthiness of the statement’’ as required under

the Rule. On the contrary, the credibility of a defen-

dant’s statement which incriminates a co-defendant and

was made during post arrest, custodial interrogation in

the presence of the co-defendant, ‘’is inevitably suspect.”’

Bruton v. United States, 391 U.S. 123, 136 (1968).

We, therefore, conclude that Martin’s statement fails to

satisfy any hearsay exception under the Ohio Rules of

Evidence.

Hl.

Other Indicia of Reliability

(a) Adoptive Admission

The state alternatively argues that under Parker v.

Randolph, 442 U.S. 62 (1979) and Poole v. Perini, 659

F.2d 730 (6th Cir. 1981), cert. denied, 455 U.S. 910

(1982), the petitioner adopted Martin’s confession by

A-12

shrugging his shoulders when asked to confirm Martin's

statements. We find no merit to this contention. In

Parker the Supreme Corut held that Bruton v. United

States, 391 U.S. 123 (1968), does not require reversal

of a defendant’s conviction by joint trial when the

defendant’s confession “‘interlocks’’ with and supports

the confession of a nontestifying codefendant. 442 U.S.

at 64. As the petitioner was tried alone and never made a

confession, Parker is not applicable to this case. More-

over, we decline to find on this record that the petitioner’s

non-commital shrug constituted an adoption of Martin's

statements to Officer Lee. As noted in Poole v. Perini,

‘a defendant cannot adopt an out-of-court statement as

his own without some affirmative action on his part.”

659 F.2d at 733. The petitioner did not verbally assent

to Martin’s statements and in fact strongly denied to

police any involvement in the burglary. Nor would the

petitioner be expected to refute Martin’s staternents after

twice being advised of his right to remain silent. United

States v. Brinson, 411 F.2d 1057, 1060 (6th Cir. 1969).

(b) Particularized Guarantees of Trustworthiness

“As noted above, in Bruton v. United States, 391

U.S. 123 (1968), the Supreme Court acknowledged the

inherently suspect trustworthiness of an unavailable

codefendant’s confession which implicates the other

defendant. /d. at 136. In the confession at issue here, the

declarant made no spontaneous utterance; his oral confes-

sion was made in response to custodial interrogation,

without oath or support of a signed statement. Nor did

the petitioner corroborate Martin’s statements with a

subsequent confession. We conclude that Martin’s confes-

sion was not admissible under an exception to the rule

against hearsay and did not otherwise afford adequate

indicia of reliability. The admission of the confession,

therefore, violated the petitioner’s right to confrontation.

2

Harmless Error Beyond A Reasonable Doubt

Error abrogating the petitioner's right to confronta-

tion does not require reversal if the reviewing court can

conclude that the error did not contribute to the convic-

tion. Chapman v. California, 386 U.S. 18, 14 (1967);

Mayes v. Sowders, 621 F.2d 850, 856 (6th Cir.), cert.

denied, 449 U.S. 922 (1980). We find no error in the

district court’s evaluation of the impact made by Martin's

confession on the minds of the jurors. We agree with the

district court that without the hearsay testimony of

Martin’s confession, the case ageinst the petitioner

becomes ‘‘significantly less persuasive’’. See Schnebie v.

Florida, 405 U.S. 427, 432 (1972). Without it, the case

would have entailed a credibility determination of the

petitioner’s three alibi witnesses, and Mr. Cook's

identification of the burglars initially by their clothing

and subsequently from a line up. In our view, the

deceased codefendant’s statements wou!d have had great

impact on the jurors’ evaluation of the case.

The judgment of the Honorable John D. Holschuh,

United States District Court for the Southern District of

Ohio, is hereby affirmed.

MERRITT, Circuit Judge, dissenting. !n this habeas

corpus case collaterally attacking petitioner’s Ohio

burglary conviction, | 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, ‘“| do not contest what

A-14

he said.’’ Martin’s statement is reliable because it

expressly admits that both particivated 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. | 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 indepen-

dent evidence.

A-15

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF OHIO

EASTERN DIVISION

OTIS LEE FUSON, JR.

Peti- ioner

vs.

A. R. JAGO, Supt.

Respondent

Civil Action C-2-83-2370

Filed April 16, 1984

OP !NION AND ORDER

Petitioner, a state prisoner, brings this action for a

writ of habeas corpus under the provisions of 28 U.S.C.

Section 2254. This matter is before the Court on the

petition, return of writ, transcript of proceedings in State

v. Otis Lee Fuson, Jr., No. B—815434 (Hamilton Cty.

C.P. Ct. March, 1982), and the briets and exhibits of the

parties.

Petitioner was indicted by the 1982 Term Hamilton

County, Ohio Grand Jury on one count of aggravated

burglary in violation of O.R.C. Section 2911.11. He was

tried to a jury whch returned a verdict of guilty as

charged. On March 4, 1982 petitioner was sentenced to a

term of four to twenty-five years imprisonment.

Petitioner appealed his conviction to the Ohio Court

of Appeals for the First Judicial District alleging as his

sole assignment of error that the trial court erred in

A-16

admitting into evidence statements allegedly made to the

police by a deceased co-defendant. The court overruled

the assignment of error and affirmed the conviction.

Petitioner subsequently filed a motion for leave to appeal

in the Ohio Supreme Court, which overruied the motion

on June 8, 1983.

Petitioner alleges that he is in the custody of respon-

dent in violation of the Constitution of the United States

in that certain statements made to the police by a

deceased co-defendant were used against him at trial in

violation of his Sixth Amendment right of confrontation.

Petitioner has exhausted his state court remedies as

required by 28 U.S.C. Section 2254(b) and (c).

The evidence at trial established that at about 2:30

p.m. on December 12, 1981 William Cook observed from

his living room window two men outside a neighbor's

apartment about 100 yards away. He observed petitioner

lift co-defendant Gary Martin to the second floor

balcony of the apartment. Martin looked around, jumped

to the ground, and the two men left. About two or three

minutes later they returned and petitioner again helped

Martin up onto the balcony. Martin broke into the patio

door and went inside the apartment, while petitioner ran

around the side of the buildiny. When Martin left the

apartment, he was carrying a tire iron or crowbar, which

he threw to the ground before jumping fror the balcony.

Cook summoned the security guard for the apart-

ment complex and went to the neighboring apartment

building to look for the two men. As he walked down the

driveway, petitioner and Martin pulled up beside him ina

car. They stopped and looked at him for about ten or

A-17

fifteen seconds and then drove away. Cook gave police

a description of the men, the vehicle, and the license

number.

Police apprehended petitioner and Martin’ in

Martin’s car approximately one hour later. Among other

things recovered from the car was a tire iron resembling

the one which Cook had described. Cook was subsequently

summoned to police headquarters where he made a posi-

tive identification of both defendants.

A police officer testified that he had removed

petitioner’s wallet at the police station. Inside was a

piece of paper with the name ‘Dave’ and “481-8141”

written on it. The phone number was that of Davia

Scheyer, who resided at the apartment which had been

entered. Petitioner denied knowing Scheyer and denied

that the piece cf paper had been in his wallet.

After petitioner and Martin were arrested, they were

advised of their Miranda rights and were jointly ques-

tioned. Officer Lee testified that he asked Martin about

the crowbar that was used to pry open the patio door.

Martin replied that he hadn’t used a crowbar, but rather

the tire iron which had been taken from the car. Officer

Lee than began directing questions to both defendants.

He asked if they both entered the a~artment. Martin told

him that he actually entered th. apartment and that

petitioner had helped him up onto the balcony. Officer

Lee stated, ‘then you both were breaking in’, to which

Martin replied, ‘‘yes.’” Petitioner said nothing, merely

shrugging his shoulders in response to the statement.

The defense presented three alibi witnesses. Becky

Magnuson testified that petitioner returned home from

A-18

work sometime between 12:00 and 12:30 p.m. and that

he remained at home with her family until he was picked

up by Gary Martin between 4:15 and 4:30 p.m. She did

not hear from him again until later that evening, when he

called from the police station. On cross-examination, she

admitted that she had not told police of petitioner’s

whereabouts that afternoon, but had discussed it with

defense counsel the day before trial.

Rhonda Earls, Ms. Magnuson’s sister and petitioner’s

girlfriend, gave similar testimony. She stated that peti-

tioner had come home from work between 12:00 and

12:30 p.m. and was at home with her all afternoon until

Gary Martin picked him up at 4:30 p.m.

Dorothy Wessler testified that she had awakened at

2:00 p.m. on the afternoon of December 12 and that

petitioner was home at that time. He stayed at the apart-

ment until he was picked up by Gary Martin later in the

afternoon.

Co-defendant Gary Martin died prior to trial. The

trial court held a hearing on defense counsel’s motion in

limine to prevent Officer Lee from testifying as to the

confession made by Martin which implicated petitioner in

the robbery. The trial court overruled the motion on the

basis that Martin’s statements were admissible under Rule

801(D)(2)(e), Ohio Rules of Evidence, which provides

that a statement made by a co-conspirator during the

course of and in furtherance of the conspiracy is not

hearsay.

Petitioner argued in the state courts that since

Martin was unavailable for cross-examination, permitting

Officer Lee to testify regarding Martin’s confession

A-19

violated his right to confront wiinesses against him in

violation of the Sixth Amendment. !n addressing peti-

tioner’s constitutional claim, the Ohio Court of Appeals

stated:

The Sixth Amendment provides that

We find it unnecessary to consider this

argument because any _ violation of

appellant’s right to confrontation that

may have occurred at trial was harmless

error beyond a reasonable doubt. Chap-

man v. California (1967), 386 U.S. 18,

87 S.Ct. 824. That is, Martin’s staternents

were merely cumulative of other over.

whelming evidence against appellant

properly before the jury. ... There was

ey:witness testimony from the victims’

neighbor that he saw appellant boost

Martin up to the apartment’s balcony

where Martin broke the door open and

went inside. Approximately ten minutes

later the eyewitness saw Martin jump

down from the balcony carrying 3 tire

iron and then observed the pair drive

away. The eyewitness’ detailed descrip-

tion of the pair and the car led to their

arrest a few hours after the crime

occurred. The arresting officers discovered

various tools, includin, a tire iron, in the

car. At the police station, the eyewitness

identified appellant and Martin as the men

he had seen breaking into the apartment.

44

liln all

criminal prosecutions, the accused shall enjoy the right

... to be cenfronted with the witnesses against him. . .

7

A-20

This fundamental right of criminal defendants is made

obligatory on the states through the Fourteenth Amend-

ment. Pointer v. Texas, 380 U.S. 400, 403 (1965).

The purpose of the confrontation clause is to ensure

that witnesses will testify under oath before the jury and

be subject to cross-examination. Challenge of testimony

by cross-examination is of primary importance in a trial

because it assures that the trier of fact has a satisfactory

basis for evaluating the truth of the testimony and the

credibility of the witness. Ca/ifornia v. Green, 399 U.S.

149, 161 (1970). The United States Supreme Court

has repeatedly recognized the principles underlying the

right of confrontation:

In short, the Clause envisions ‘a personal

examination and cross-examination of the

witness in which the accused has an

opportunity, not only of testing the

recollection and sifting the conscience of

the witness, but of compelling him to

stand face to face with the jury in order

that they may look at him, and judge his

demeanor upon the stand and the manner

in which he gives his testimony whether

he is worthy of belief.’

Ohio v. Roberts, 448 U.S. 56, 63-64 (1980), quoting

Mattox v. United States, 156 U.S. 237, 242-43 (1895).

However, not every admission of hearsay evidence

states a Claim under the Constitution. Although the

hearsay rules and the Confrontation Clause are designed

to protect similar values, Ca/ifornia v. Green, 399 U.S.

at 155, and stem from the same roots, Dutton v. Evans,

‘ene

A-21

400 U.S. 74, 86 (1970), hearsay evidence may be

admitted without violating the Confrontation Clause.

Dutton v. Evans, 400 U.S. at 80; Pointer v. Texas, 380

U.S. at 407.

The Supreme Court has developed a two step

analysis in determining when hearsay evidence may be

admitted without violating the Sixth Amendment. First,

the declarant must be unavailable to testify at trial.

Second, the hearsay statements must be marked with

sufficient indicia of reliability to ensure their trust-

worthiness even without cross-examination. Ohio v.

Roberts, 448 U.S. at 65. See also, Dutton v. Evans,

400 U.S. at 89; California v. Green, 399 U.S. at 161;

Mancusi v. Stubbs, 408 U.S. 204, 213 (1972). The

controlling consideration remains the accuracy of the

factfinding process, and ‘“‘the confrontation clause

allows only hearsay which will not undermine the

integrity of [that] process.’’ Haggins v. Warden, Fort

Pillow State Farm, 715 F.2d 1050, 1056 (6th Cir. 1983).

Gary Martin was unavailable to testify at trial.

The Court’s inquiry must focus, then, on whether his

statements bear the requisite indicia of reliability to make

them admissible absent the opportunity for cross-

examination. The most commonly accepted method of

showing that hearsay statements bear sufficient indicia of

reliability to satisfy the requirements of the confronta-

tion clause is to establish that they fall within some

firmly rooted exception to the hearsay rule. If the

evidence does not fall within such category, it must

possess some other particularized guarantee of trust-

worthiness. Ohio v. Roberts, 448 U.S. at 66.

Respondent argues that the testimony given by

Officer Lee falls within a recognized exception to the

|

A-22

hearsay rule which also comports with the substance of

the confrontation clause. The trial court admitted the

testimony on the basis of Ohio Rule of Evidence 801

(D)(2)(e) which provides:

A statement is not hearsay if: (2)

Admission by a party opponent. The

statement is offered against a party and

. .. (e) a statement by a co-conspirator

of a party during the course and in

furtherance of the conspiracy upon

independent proof of the conspiracy.

The co-conspirator rule is a well-established exception to

the hearsay rule. The United States Court of Appeals for

the Sixth Circuit has held, for the similar federal rule,

that evidence falling within this exception does not

violate the confrontation clause even if the statements

clearly implicate the defendant and the declarant is

unavailable for cross-examination. United States v. Marks,

585 F.2d 164, 170 n. 5 (6th Cir. 1978), citing United

States v. McManus, 560 F.2d 747 (6th Cir. 1977), cert.

denied, 434 U.S. 1047 (1978); Campbei/ v. United States,

415 F.2d 356 (6th Cir. 1969); Dutton v. Evans, supra;

United States v. Swainson, 548 F.2d 657 (6th Cir. 1977),

cert. denied, 431 U.S. 937 (1977).

However, under both Ohio and federal law, the rule

applies only to statements which are made prior to the

termination of the conspiracy and for the purpose of

furthering the conspiracy. United States v. Nixon, 418

U.S. 683, 701 (1974); Dutton v. Evans, 400 U.S. at 81;

United States v. Marks, 585 F.2d at 170; United States

v. Mitchell, 556 F.2d 371, 377 n. 6 (6th Cir. 1977)

cert. denied, 434 U.S. 925 (1977); State v. Jones, 22

A-23

Ohio App. 2d 67, 69-70 (1970); State v. Shelton, 51

Ohio St. 2d 68, 72 (1977); State v. DeRighter, 145

Ohio St. 552, 558 (1945); Patton v. State, 6 Ohio St.

468 (1856). In State v. She/ton, the Ohio Supreme

Court stated that the general rule in Ohio regarding the

statements of co-conspirators is that

‘[t]he acts and declarations of a co-

conspirator may, after sufficient proof

of conspiracy, be given in evidence to

charge his fellow conspirator, but subject

always to the /imitation that the acts and

declarations admiited be those only which

were made and done during the pendency

of the criminal enterprise, and in further-

ance of the common object.’

51 Ohio St. 2d at 72, quoting Patton v. State, 6 Ohio St.

468 (1856).

Thus, extrajudicial statements made in furtherance

of the design or purpose of the conspiracy are admissible

as substantive evidence against each co-conspirator. State

v. Carver, 30 Ohio St. 2d 280, 286-87 (1972). Moreover,

the She/ton court noted that a conspiracy does not

necessarily end with the commission of the conspired

crime. 51 Ohio St. 2d at 72. For example, the hearsay

statements may be so connected with the crime as to

constitute part of the res gestae, may be made while

the co-conspirators are concerned with concealment of

their conduct or identify, or may be made before the

fruits of the crime have been disposed of. /d.

——

A-24

The leading Ohio case regarding the concealment

phase of the conspiracy is State v. DeRighter, 145 Ohio

St. 552 (1945). The Court stated the rationale for the

rule as foliows:

The acts and declarations of a conspirator

are admissible against the co-conspirator

when they are made during the pendency

of the wrongful act, and this includes not

only the perpetration of the offense, but

also its subsequent concealment. The

theory for the admission of such evidence

is that persons who conspire to commit a

crime, and who do commit a crime, are

as much concerned, before the crime,

with its commission; the conspiracy to

commit the crime develves after the

commission thereof into a conspiracy to

avoid arrest and implication.

/d. at 558.

In the present case, Martin’s statements were not so

intimately connected with the crime so as to come within

the res gestae, nor were they made prior to the disposi-

tion of the ‘‘fruits of the crime’, since nothing was stolen

during the robbery. Moreover, Martin's statements to the

police were not made during the pendency of the

conspiracy or in furtherance of the common object of

the conspiracy. The crimina! act had been completed;

both defendants had been arrested and taken to the

police station.

Under Ohio law, a statement made subsequent to

arrest by a co-defendant during custodial interrogation

A-25

which implicates another co-defendant is not made

pursuant to the purposes of the conspiracy or its conceal-

ment. State v. Jones, 22 Ohio App. 2d 67, 69-70 (1970).

Martin made no statemen‘s designed to conceal the fact

that the crime was committed or the persons who

committed it. In fact, the opposite is true--Martin’s state-

ments were a confession to the crime. Since the

conspiracy, if one existed, had terminated and no

attempt at concealment was made, Martin’s statements

were not made to further the object of the conspiracy.

The Court concludes that the hearsay evidence intro-

duced at petitioner’s trial does not fall within a wel!

established exception to the hearsay rule.

Respondent argues that petitioner adopted Martin’s

statements as his own by shrugging his shoulders when

asked to confirm the statements. An adoptive confession

eliminates the confrontation problem because the words

of the out of court declarant become the words of the

defendant, thereby obviating the need for cross-examina-

tion. Poole v. Perini, 659 F.2d 730, 733 (6th Cir. 1981).

Adoption of the confession of an accomplice requires

some affirmative action on the part of the defendant.

Merely being present and remaining silent while others

confess is not usually sufficient to constitute adoption of

those confessions. /d; United States v. Hoosier, 542 F.2d

587 (6th Cir. 1976).

At no time did petitioner verbally adopt Martin's

statements. Nor can a non-commital body gesture, such

as shrugging the shoulders, constitute an adoptive confes-

sion in this situation. Under circumstances that naturally

call for some explanation, failure to reply to an accusa-

tion of guilt may constitute a tacit admission of the

accusation. However, accusations made subsequent to

A-26

arrest and during custodial interrogation are not made in

circumstances under which a defendant would be

expected to make a denial. United States v. Brinson,

411 F.2d 1057, 1060 (6th Cir. 1969); United States v.

McKinney, 379 F.2d 259 (6th Cir. 1967). One who is

under arrest cannot legally be called upon to reply to

such accusations, and the choice to remain silent or be

non-committal in one’s response cannot be construed as

an adoptive confession. Miranda v. Arizona, 384 U.S. 436

(1966); Ze//er v. State, 123 Ohio St. 519 (1931); Wa/ker

v. State, 37 Ohio App. 540 (1930).

Nor does Martin’s confession carry any other

‘‘particularized guarantees of trustworthiness’’ which

obviates the necessity for cross-examination. Ohio v.

Roberts, 448 U.S. at 66. The Supreme Court has charac-

terized such statements made by co-defendants as

inherently unreliable. In Bruton v. United States, 391

U.S. 123 (1968), the Court overturned Bruton’s convic-

tion because the confession of a co-defendant, which also

implicated Bruton, was introduced at their joint trial. The

co-defendant did not take the stand to testify. The Court

held that even with limiting instructions, the ‘‘powerfully

incriminating’ extrajudicial statements violated the

confrontations clause. The Court noted that such confes-

sions have ‘‘devastating’’ impact on the defendant and

that the credibility of such hearsay statements is ‘‘in-

evitably suspect’’ due to the “‘recognized motivation to

shift blame onto others.’’ /d, at 136.

Here, Martin’s confession was not a spontaneous

statement, but was obtained ‘‘in the coercive atmosphere

of official interrogation.’’ Dutton v. Evans, 400 U.S.

at 87, 89. The statements were not opinions, but were

express assertions about past fact, i.e., that petitioner was

involved in the robbery. /d, at 88. It was not a signed

confession, but rather an oral statement not made under

oath. The statements clearly implicated petitioner in the

crime, and were used as direct evidence of his guilt.

They were not corroborated by a confession made by

petitioner. Martin’s statements had none of the indicia of

reliability necessary to satisfy the requirements of the

confrontation clause. Accordingly, the Court HOLDS

that the trial court committed error of constitutional

magnitude in admitting Gary Martin’s confession through

the testimony of Officer Lee.

However, the mere finding that the state court

violated petitioner’s right of confrontation does not

automatically require reversal. Schneble v. Florida,

405 U.S. 427 (1972). Having found constitutional error,

the Court's inquiry must focus on whether the error was

harmless beyond a reasonable doubt or whether there is a

reasonable possibility that the evidence might have

contributed to the conviction. Chapman v. California,

386 U.S. 18 (1967); Mayes v. Sowders, 621 F.2d 850,

856 (6th Cir. 1980). Based on its reading of the record,

the Court must assess the probable impact of the hearsay

evidence on the “minds of an average jury’ and

determine whether it would have fo::nd the case against

petitioner ‘‘significantly less persuasive’’ had Officer Lee's

testimony not been admitted. Schneb/e v. Florida, 405

U.S. at 432; Harrington v. California, 395 U.S. 250,

254 (1969). However, the Court shouid not overturn the

conviction simply because a single juror might have

decided differently had the testimony not been admitted.

Harringotn v. California, 395 U.S. at 254.

|

A-28

The Court is unable to conclude that the admission

of Martin’s confession was error which is harmless

beyond a reasonable doubt. There is a reasonable likeii-

hood that Officer Lee’s testimony had substantial impact

on the minds of the jury which determined petitioner's

guilt. Martin's statements were a confession of guilt and

were clearly ‘‘powerfully incriminating’ with respect to

petitioner. The prosecution’s case becomes significantly

less persuasive when Martin's confession is excluded from

the other evidence. Although there was an eyewitness and

other objective evidence linking petitioner to the

robbery, there was also significant testimony from three

alibi witnesses. The Court concludes that the admission

of Martin’s confession was so devastating to petitioner

that reversal is required.

WHEREUPON, the Court HOLDS that the petition

is meritorious, and it is hereby GRANTED. A writ of

habeas corpus discharging petitioner shall issue sixty

(60) days from the date of this Opinion and Order

unless the state commences re-trial within that period.

lf a timely notice of appeal is filed, this Order shall be

stayed until sixty (60) days following the docketing

in this Court of the mandate from the United States

Court of Appeals for the Sixth Circuit.

/s/ John D. Holschuh

John D. Holschuh, Judge

United States District Court

A-29

IN THE COURT OF APPEALS

FIRST APPELLATE DISTRICT OF OHIO

HAMILTON COUNTY, OHIO

STATE OF OHIO,

Plaintiff-Appeilee,

vs.

OTIS LEE FUSON. JR.,

Defendant-Appellant.

NO. C—820198

DECISION

[file stamp deleted]

Messrs. Simon L. Leis, Jr., Stephen P. Calardo and Car!

W. Vollman, 420 Hamilton County Courthouse, Court

and Main Streets, Cincinnati, Ohio 45202, for Plaintiff-

Appellee,

Ms. Rebecca K. Kaye, 3639 Glenmore Avenue, Cincinnati,

Ohio 45211, for Defendant-Appellant.

PER CURIAM.

This cause came on to be heard upon the appeal, the

transcript of the docket, journal entries and original

papers from the Court of Common Pleas of Hamilton

County, Ohio, the transcript of the proceedings, the

briefs and the oral arguments of counsel.

—————————

A-30

On January 14, 1982, Otis Fuson and Gary Martin

were charged by indictment with aggravated burglary.

Appellant was additionally charged with possession of

crimina! tools. Before the matter came to trial, Gary

Martin died. On March 1. 1982, appellant filed a motion

in limine seeking to prevent the state from introducing

statements Martin had allegedly made to police officers.

After a hearing, the trial court overruled the motion.

The matter proceeded to a jury trial where appellant was

found guilty as charged. Appeal was timely filed.

The single assignment of error states:

The trial court erred in overruiing

defendant’s motion in tirnine and sub-

sequently admitting statements allegedly

made by the deceased co-defendant

to law enforcement [officers] into

evidence over the ubjection of counsel.

The record reveals that after appellant and Martin were

arrested they were advised of their Miranda rights and

jointly questioned. Martin admitted that he had used a

tire iron to break into an apartment and that appellant

had boosted him up to the apartment balcony. When the

ofticer asked, ‘Then you were both breaking in,’’ Martin

replied, ‘‘Yes.”’ Appellant’s response was a shrug

Appellant first argues that the admission of Martin’s

statement violated the rules prohibiting hearsay. We find,

however, that the statements were admissible as an

exception to the hearsay rules pursuant to Evid. R. 804

(B)(3) dealing with statements against interest.

A-31

Appellant also challenges the admissibility of

Martin’s statements as a violation of his right to confront

the witnesses against him. U.S. Const. amend V1; Bruton

v. United States (1968), 391 U.S. 123,88 S. Ct. 1620

- We find it unnecessary to consider this argument because

any violation of appellant’s right tu confrontation that

may have occurred at trial was harmless error beyond a

reasonable doubt. Chapman v. California (1967), 386

U.S. 18, 87 S. Ct. 824. That is, Martin’s statements were

merely cumulative of other overwhelming evidence

against appeilant properly before the jury. See Schneble

v. Florida (1972), 405 U.S. 427, 92 S. Ct. 1056; Brown

v. United States (1973), 411 U.S. 223, 93 S. Ct. 1565.

There was eyewitness testimony from the victim’s

neighbor that he saw appellant boost Martin up to the

apartment’s balcony where Martin broke the door open

and went inside. Approximately ten minutes later the

eyewitness saw Martin jump down from the balcony

carrying a tire iron and then observed the pair drive

away. The eyewitness’ detailed description of the pair

and the car led to their arrest a few hours after the crime

occurred. The arresting officers discovered various

tools, including a tire iron, in the car. At the police

station, the eyewitness identified appellant and Martin

as the men he had seen breaking into the apartment.

Finding the occurrence of any error in the admission

of Martin’s statements to be harmless, we overrule

appellant’s assignment of error and affirm the judgment

below.

KEEFE, P. J., BLACK and DOAN, JJ.

PLEASE NOTE:

The Court has placed of record its own entry in this

case On the date of the release of this Decision.

OE