# Petition for Writ of Certiorari — Seiter v. Fuson

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1986
- **Citation:** 478 U.S. 1020

## Text

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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385018_1272%3A1. Public record. Not legal advice.