Petition for Writ of Certiorari — Sowders v. Carter

93150 0 MAR 1 6 1994

NO. _oeeice-O& IME CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1993

| DEWEY SOWDERS, WARDEN PETITIONER

- versus -

CLAUDE EARN CARTER RESPONDENT

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CHRIS GORMAN

ATTORNEY GENERAL

CAROL C. ULLERICH*

ASSISTANT ATTORNEY GENERAL

CRIMINAL APPELLATE DIVISION

| P. O. BOX 2000

1024 CAPITAL CENTER DRIVE

FRANKFORT, KY 40602-2000

(502) 564-8308

COUNSEL FOR PETITIONER

*Attorney of Record for Petitioner

QUESTION PRESENTED FOR REVIEW

What standard is to be applied in

determining whether a criminal

defendant who is free on pre-trial bond

has voluntarily waived the right to

attend a deposition and confront

his/her accuser?

TABLE OF CONTENTS

Page

QUESTION PRESENTED FOR REVIEW ---- i

TABLE OF CONTENTS ---------------- ii

TABLE OF AUTHORITIES ------------- iii

OPINIONS BELOW ------------------- 2

JURISDICTION --------------------- 2-3

CONSTITUTIONAL STATUTORY

PROVISIONS INVOLVED -------------- 3-5

STATEMENT OF THE CASE ------------ 5-11

REASONS FOR GRANTING THE WRIT ---- 11-25

CONCLUSION ----------------------- 25

(Pursuant to Supreme Court Rule 14(K)

the APPENDIX is contained ina

Separate Volume)

ii

eT

-_ ——. . 5 er ee a eee ee ee ee a? a ey eo. y:

TABLE OF AUTHORITIES

Cases: Page

Boyd v. Dutton,

Oe arias: es ee LEOPD co ccsisorees 12

Boykin v. Alabama,

SPe Wels BEE SASGO) cow cccccccccas 22

wer v m

670 F.2d 117, 119 (9th Cir. 1982) 20

Carter v. Sowders,

F.2d iocn Cis. 1993) ~----. 2

Vv w ga os

70a B02 SOT FASS) = eee ccc eens 2,8

Ps

Sa ees Ms Bease 149482) ~~~ eee 13,16,23

V j ’

15 App.D.C. 446, 454, s.c. 180 U.S. 636,

45 L.Ed. 709, 21 Sup. Ct. Rep. 923. 16

illinois v. Allen,

397 U.S. 337, rehearing denied

SOO Welle Bie LATE) oo wes cwccdencs 22

in re Oliver,

Bee ek. es Oe EEBER) wae w cece. 21

in v. V ini ;

498 U.S. 89 (1990) ----------2-.-- 21

iii

; roar vane

Seo. 2 iat Rae te Sy ee ‘a Pa Soe ‘ LP es aa 5. kage nS. ‘

SLATE AE SERS TARA ae Se LR el mee ey

be A etre dee

Ae ae one Tt

Cases:

Johnson v. Zerbst,

304 U.S. 458, 464 (1938) ---------

Link v. Wabash Railroad Co.,

370 U.S. 626, 634\ (1962) ---------

Owings v. State,

622 N.E.2d 948, 953 (Ind. 1993) --

Taylor v. United States,

Be, Se EE S55 i oS owe ccenes

United States v. Carlson,

547 F.2d 1346, 1358 (8th Cir. 1976)

United States v. Everett,

700 F.2d 900, 902 n.5 (1983) -----

United States v. King,

552 F.2d 833 (9th Cir. 1976) -----

United States v. Peterson,

524 F.2d 167, 184-5 (4th Cir. 1975)

cert. denied, 423 U.S. 1088 (1976)

United States v. Polizzi,

926 F.2d 1311, 1322 (2nd Cir. 1991)

United States v. Rewald,

889 F.2d 836, 854 (9th Cir. 1991)

:

790 F.2d 245, 250 (2d Cir.),

cert. denied 479 U.S. 989 (1986) -

. W . ?

932 F.2d 868, 879 (10th Cir. 1991)

iv

Page

12,19,23

21

17

13,16,22,

23,24

22

21

18,24

23

12,24

19

13

23

Other:

Kentucky Revised Statute 421.260 10

22 Oklahoma Statute Annotated §722 6

Tennessee Code Annotated 40-17-203 5

_—" >

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1993

DEWEY SOWDERS, WARDEN PETITIONER

- versus -

CLAUDE EARN CARTER RESPONDENT

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

Dewey Sowders, Warden of the Northpoint

Training Center and the Attorney General of the

Commonwealth of Kentucky Petition for Writ of

Certiorari to review the judgment of the United

States Court of Appeals for the Sixth Circuit,

granting a writ of habeas corpus in favor of

respondent.

OPINIONS BELOW

The opinion of the United States Court

of Appeals for the Sixth Circuit (A 1-27) is

reported as Carter v. Sowders, ___ F.2d ____ (6th

Cir. 1993). The order of the Sixth Circuit

denying the Commonwealth’s petition for

rehearing is not reported and is found at (A

28-30). The opinion of the United States

District Court is not reported. (A 50-51).

(October 31, 1991). The Magistrate Judge's

Report, adopted by the District Court, is not

reported and is reproduced at (A 31-49). The

opinion of the Kentucky Supreme Court affirming

the conviction is reported as Carter v.

Commonwealth, Ky., 782 S.W.2d 597 (1989).

JURISDICTION

The judgment sought to be reviewed is

that of the United States Court of Appeals for

The Sixth Circuit decided and filed September

27, 1993. Carter v. Sowders, _. F.2d ____—sqwi(No..

91-6419) [Appendix cited as "A") (A 1-27),

reversing the October 31, 1991 judgment of the

United States District Court for the Western

District of Kentucky (Civil Action No.

90-0197BG(M) (A 50-51). A Petition for

Rehearing was denied December 16, 1993 (A

28-30). The jurisdiction of the United States

District Court was invoked pursuant to Title 28

y.S..C. §2254. This Court has jurisdiction to

review the opinion of the Sixth Circuit Court of

Appeals pursuant to Title 28 U.S.C. §2254(1).

CONSTITUTIONAL STATUTORY

PROVISIONS INVOLVED

The Fifth Amendment of the Constitution

of the United States provides as follows:

No person shall be held to

answer for a capital, or otherwise

infamous crime, unless on a

presentment or indictment of a

Grand Jury, except in cases

arising in the land or naval

forces, or in the militia, when in

actual service in time of war or

public danger; nor shall any

person be subject for the same

%-

offence [sic] to be twice put in

jeopardy of life or limb; nor

shall be compelled in any criminal

case to be a witness against

himself, nor be deprived of life,

liberty, or property, without due

process of law; nor shall private

property be taken for public use,

without just compensation.

The Sixth Amendment of the Constitution

of the United States provides as follows:

In all criminal prosecutions,

the accused shall enjoy the right

to a speedy and public trial by an

impartial jury of the State and

Gistrict wherein the crime shall

have been committed, which

district shall 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

defense.

The Due Process Clause of Section 1 of

the Fourteenth Amendment of the Constitution of

the United States provides as follows:

[N)or shall any State deprive any

person of life, liberty, or

-4-

property without due process of

law[.]

STATEMENT OF THE CASE

Respondent was tried in Kentucky state

court for possession and sale of marijuana and

LSD and being a first-degree persistent felony

offender following an investigation spanning

Tennessee and Kentucky. Charles Elam was a

salarie. narcotics agent with the Dyersburg

Tennessee Police Department. Elam and Billy

Driskell purchased marijuana and LSD from

respondent in Kentucky and then returned to

Tennessee where Elam reported to the Union City

Police Department. (A 1-3). ;

Elam was a material and necessary

witness for the Commonwealth. The prosecutor

feared he could not produce live testimony from

Elam at trial, so to preserve that testimony, he

moved to videotape Elam’s deposition. Using the

Non-Resident Witness Act in Tennessee (T.C.A.

.

ee ee I ee ee ae ae pear hae ty ee ee

ie a: 8 ie oe ee

he ee OTe Se ee ee ee ge eee wer ae

40-17-203) and then in Oklahoma (22 Ok1.St.Ann.

§722), Elam was brought to Kentucky on June 30,

1986 for a court-ordered deposition. (A 3-7).

It is uncontradicted that opposing

counsel, Hon. Louis Waller, received timely

notice of the deposition via letter and appeared

at the scheduled hour. (A 34; A 52-58). Waller

advised respondent of the deposition by letter

and tried to reach him by phone the day before

the deposition as well. Unable *« iowate his

client, and feeling insufficiently prepared to

cross-examine Elam, Waller served notice of his

intention to withdraw as counsel and left the

deposition. Counsel said he had not required

respondent’s presence at the deposition and had

told respondent "you may wish to be present" at

the deposition, assuming this would prompt

respondent to contact him to discuss strategy.

(A 54).

Respondent, free on pre-trial bond,

never contacted Waller. Before leaving the

deposition, Waller acknowledged he was bound to

represent respondent until the court released

him from that obligation. Waller left, Elam was

ee Pee,

sworn, and the prosecutor questioned Elam

without respondent or Waller.

Trial began January 6, 1987. Elam

could not be found. Phone calls went

unanswered, mail was returned as undeliverable

and a subpoena naming Elam was issued but not

served. (A 38-39). The Commonwealth

successfully moved to admit Elam’s sworn

videotaped deposition in lieu of live

testimony. Respondent’s new attorney, Hon.

Robert Hedges, objected to use of the deposition

and tried to quash it due to respondent’s

absence and alleged lack of representation and

cross-examination. The motion to quash was

denied, but not until trial. (A 6-7).

Respondent was found guilty of

trafficking in LSD and possession of marijuana

on January 7, 1987. The court recessed for the

evening with direction that trial resume with

the penalty phase the following morning at 9:00

a.m. Respondent remained free on bail and did

not return. After waiting well over an hour,

and hearing testimony from respondent’s father

that respondent departed at 2:00 a.m., the trial

court allowed the jury to set punishment in

respondent’s voluntary absence.

The Kentucky Supreme Court affirmed the

conviction finding respondent waived the right

to confront Elam. Carter v. Commonwealth, Ky.,

782 S.W.2d 597 (1990). The opinion holds:

respondent waived the right to confront Elam;

counsel received ample notice of the taking of

the deposition and consciously decided not to

remain at the deposition and cross-examine Elam;

the record was devoid of evidence respondent had

~~

a legal reason for not attending the deposition;

there was no proof respondent’s presence would

have made a difference; counsel neither

requested a continuance nor objected to the

taking of the deposition; the Commonwealth made

a good faith effort to produce live trial

testimony from Elam; and, the Commonwealth could

not use the Uniform Non-Resident Witness Act at

trial since Elam’s whereabouts were unknown and

therefore, Elam was unavailable at the time of

+>) es 2

After this Court denied respondent’s

petition for certiorari, he sought a writ of

habeas corpus in federal district court under 28

U.S.C. §2254. The magistrate judge recommended

denial of the petition, and the district court

agreed, finding: Elam’s deposition was properly

admissible under F.R.C.P. 804 pursuant to the

"declarant unavailable/former testimony"

exception to the hearsay rule; respondent, via

his attorney, had the opportunity to

cross-examine Elam but did not seize it;

respondent was not denied counsel at a critical

stage as Waller represented respondent until the

trial court granted the motion to withdraw;

while counsel could have moved to postpone the

deposition, he did not; the Commonwealth made a

good faith effort to present live trial

testimony from Elam; the Commonwealth could not

subpoena Elam or use the Non-Resident Witness

Act for trial because the prosecution was unable

to locate Elam; and, Elam could not be

subpoenaed for trial while testifying at the

deposition as that would have violated KRS

421.260. (A 31-49). The district court adopted

the magistrate judge’s report in full and denied

the petition for writ of habeas corpus. (A

50-81).

The United States Court of Appeals for

the Sixth Circuit reversed the decision of the

-10-

district court finding respondent was entitled

to the writ because: Elam’s deposition was

hearsay and erroneously admitted; without

cross-examination, the jury lacked sufficient

basis to evaluate the truthfulness of Elam’s

deposition; respondent was denied the

opportunity to confront Elam; even if respondent

received Waller’s letter it was incomplete in

that it failed to tell respondent he had a

constitutional right to attend the deposition

and failed to specify the consequences of

failing to attend; and finally, respondent did

not personally waive his right of

confrontation. (A1-27). A Petition for

Rehearing was denied. (A 28-29).

REASONS FOR GRANTING THE WRIT

The focus of this petition is whether a

criminal defendant who is free on pre-trial bond

waives the right to confrontation by not

attending a deposition of which he/she has

-1i-

notice. The Sixth Circuit answered this

question in the negative based upon Johnson v.

Zerbst, 304 U.S. 458, 464 (1938), which requires

"intentional relinquishment of a known right or

privilege," and Boyd v. Dutton, 405 U.S. 1, 2-3

(1972), which directs that a right "may be

waived only by voluntary and knowing action."

(A 20-21). Under the Sixth Circuit’s

interpretation of Zerbst, inaction could never

constitute waiver. Furthermore, a personal

on-the-record statement by the defendant would

be required for valid waiver. The byproduct of

this ruling is that an attorney could never

enter a valid waiver for his client, even if he

did so with express authority of the client.

While personal waiver from the accused may be

preferred, it is not constitutionally mandated.

United States v. Polizzi, 926 F.2d 1311, 1322

(2nd Cir. 1991).

©12-

The Sixth Circuit’s approach is

inconsistent with this Court’s opinions in Diaz

v. United States, 223 U.S. 442, 451-3 (1912) and

Taylor v. United States, 414 U.S. 17 (1973),

both of which clearly hold voluntary absence

from a proceeding constitutes waiver. Even the

Second Circuit has realized requiring a personal

in-court statement from the accused to

effectuate a valid waiver would create a

"burdensome, impractical and wholly unnecessary"

rule which taken to its logical conclusion

"would work the unwieldy result of leaving

ineffective as a waiver the voluntary failure to

appear for trial." Polizzi, at 1322; United

States v. Sanchez, 790 F.2d 245, 250 (2d Cir.),

cert. denied 479 U.S. 989 (1986). This is

precisely the situation created by the Sixth

Circuit opinion. After being notified of a

court-ordered deposition, respondent neither

contacted his attorney, nor appeared at the

deposition. Although respondent has never

denied knowing about the deposition, and has

never explained his absence, the Sixth Circuit

refused to find respondent’s voluntary absence

waived his right of confrontation.

The rationale for permitting voluntary

absence to constitute valid waiver was ably

expressed by this Court in Diaz:

"It does not seem to us to be

consonant with the dictates of

common sense that an accused

person, being at large upon bail,

should be at liberty, whenever he

pleased, to withdraw himself from

the courts of his country and to

break up a trial already

commenced. The practical result

of such a proposition, if allowed

to be law, would be to prevent any

trial whatever until the accused

person himself should be pleased

to permit it. For by the statute

(U.S. Rev. Stat. § 1015, U.S.

Comp. Stat. 1901, p. 718) he is

entitled as a matter of right to

be enlarged upon bail ‘in all

criminal cases where the offense

is not punishable by death;’ and

therefore, in all such cases, he

oR8<

may, by absconding, prevent a

trial. This would be a travesty

of justice which could not be

tolerated; and it is not required

or justified by any regard for the

right of personal liberty. On the

contrary, the inevitable result

would be to abridge the right of

personal liberty by abridging or

restricting the right now granted

by the statute to be abroad on

bail until the verdict is rendered.

"The question is one of broad

public policy, whether an accused

person, placed upon trial for

crime, and protected by all the

safeguards with which the humanity

of our present criminal law

sedulously surrounds him, can with

impunity defy the processes of

that law, paralyze tne proceedings

of courts and juries, and turn

them into a solemn farce, and

ultimately compel society, for its

own safety, to restrict the

operation of the principle of

personal liberty. Neither in

criminal nor in civil cases will

the law allow a person to take

advantage of his own wrong. And

yet this would be precisely what

it would do if it permitted an

escape from prison, or an

absconding from the jurisdiction

while at large on bail, during the

48 -

ex:

pendency of a trial before a jury,

to operate as a shield."

Diaz, at 506 citing Falk v. United States, 15

App.D.C. 446, 454, s.c. 180 U.S. 636, 45 L.Ed.

709, 21 Sup. Ct. Rep. 923. As further stated in

Diaz,

where the offense is not capital

and the accused is not in custody,

the prevailing rule has been, that

if, after the trial has begun in

his presence, he voluntarily

absents himself, this does not

nullify what has been done or

prevent the completion of the

trial, but, on the contrary,

operates as a waiver of his right

to be present, and leaves the

court free to proceed with the

trial in like manner and with like

effect as if he were present.

(citations omitted).

223 U.S. at 455.

While both Diaz and Taylor pertain to

confrontation in the context of absentia from

trial, the same concerns exist during a

pre-trial deposition. Chiefly, those concerns

are that a defendant who is free on bond can

ignore notification of a court-ordered

AG-

proceeding and disrupt the legal process by

avoiding the courthouse. Various courts have

applied the "voluntary absence constitutes

waiver" stand :d to pre-trial depositions. For

example, in Qwings v. State, 622 N.E.2d 948, 953

(Ind. 1993), the Indiana Supreme Court held a

defendant waived the right to confrontation by

failing to attend a deposition. Owings was free

on bond at the time of the deposition and is

presumed to have received notice because her

attorney was served. The only hint in the

record that Owings’s absence may not have been a

voluntary relinquishment of a known right is

that the deposition was taken in a youth

detention facility from which her entry was

barred. However, because Owings never asked

that she be allowed to enter the facility, and

never asked that the deposition be moved to

another location, the court determined she had

stF-

indeed waived her constitutional right to

confrontation.

Similarly, in United States v. King,

552 F.2d 833 (9th Cir. 1976), voluntary absence

was an effective waiver. The defendants and

their attorneys balked at restrictions imposed

by the Japanese government when depositions of

two drug offenders imprisoned in Japan were

taken for use at trial in America. "(T]he

witnesses were under oath; the defendants were

represented by counsel with the opportunity for

cross-examination; and the proceedings were

before an authorized hearing officer who was

equipped to take and preserve the testimony."

Id., at 842-3. During cross-examination of the

first witness, the defendants and their

attorneys refused to participate further and

left. The second witness was deposed wholly

outside the presence of the defendants or their

«48-

counsel. Citing Zerbst, the Ninth Circuit

stated:

By absenting themselves from the

proceedings, by failing to avail

themselves of the opportunity to

cross-examine the Government

witnesses, even if under less than

perfect conditions, the appellants

intentionally and knowingly gave

up both the right to be present

and to object to future use of the

testimony. It was a calculated

act, undertaken with knowledge of

the potential consequences. )

Id., at 844.

Since voluntary absence can validly

waive presence at trial, there is no logical

reason for a different standard to apply to a

pre-trial deposition. This is especially true

Since "voluntary absence" has also been held to

waive the right to attend a pre-trial hearing.

In United States v. Rewald, 889 F.2d 836, 854

(9th Cir. 1991), the Ninth Circuit found the

accused voluntarily waived the right to attend a

hearing in Hawaii because he "earlier had sought

48.

fcc

and obtained bail conditions that permitted him

to reside in Los Angeles, California, where he

had a job paying $1,000 per week." In finding

no violation of the right to confrontation, the

court noted: Rewald never told the trial court

he wanted to personally attend the hearing;

counsel never objected to his client’s absence;

and the trial court never entered any order

prohibiting Rewald’s attendance at the hearing.

This same analysis applies equally well toa

pre-trial deposition. Thus, the language of

Brewer v. Raines, 670 F.2d 117, 119 (9th Cir.

1982), "When, after sufficient notice, a

defendant voluntarily absents himself from any

proceeding, he waives any right he has to be

present at that proceeding," is both appropriate

and accurate. In short, a defendant who is free

on bond should not be allowed to circumvent a

court order simply by avoiding the courthouse.

é2Be

The primary concern is whether a

criminal defendant who takes no action knows he

has the right to act. In other words, does he

have notice? Once a party is represented by

counsel, service of notice upon counsel

constitutes notice to the client. United States

v. Everett, 700 F.2d 900, 902 n.5 (1983); See

generally In re Oliver, 333 U.S. 257, 273

(1948). In our system of representative

litigation, each party is bound by the acts of

his lawyer-agent. Link v. Wabash Railroad Co.,

370 U.S. 626, 634 (1962); Irwin v. Veterans

Administration, 498 U.S. 89 (1990). There is no

contention respondent’s attorney did not receive

notice of the deposition. In fact, respondent’s

attorney cleared his schedule to attend the

depostion. (A 53-54). Counsel then sent a

letter to respondent advising him of the

deposition and tried to reach respondent via

ie

family members when respondent failed to contact

him. (A 54-55).

Having determined respondent was aware

of the scheduled deposition, how could he

validly waive his presence at the deposition and

his right to confront an adverse witness?

Waiver can occur in a myriad of ways. For

example, the accused could agree not to

cross-examine witnesses or stipulate to the

admission of evidence. United States v.

Carlson, 547 F.2d 1346, 1358 (8th Cir. 1976).

He could waive through repeated disruptive and

disorderly conduct. Illinois v. Allen, 397 U.S.

337, rehearing denied 398 U.S. 915 (1970). He

could enter a guilty plea, Boykin v. Alabama,

395 U.S. 238 (1969), or he could fail to return

from a recess. Taylor, supra. Despite these

various methods of effectuating a valid waiver,

the Sixth Circuit has declined to recognize that

a defendant voluntarily relinquishes a known

ee

ten

Ts

eS Ss. Ue ee ee ee ee ee) ee a ee eee ST ee ee ee ae ee ee ee. ee ee ee ee ee

right by not attending a pre-trial deposition of

which he has notice. Further, while other

courts plainly adhere to the principle that

"{a])bsence without compelling justification

constitutes waiver," the Sixth Circuit has

granted relief without any such showing.

Respondent has never been required to offer any

explanation, compelling or otherwise, for his

absence. United States v. Wright, 932 F.2d 868,

879 (10th Cir. 1991); United States v. Peterson,

524 F.2d 167, 184-5 (4th Cir. 1975) cert.

denied, 423 U.S. 1088 (1976).

Diaz and Taylor clearly establish that

voluntary absence from trial constitutes valid

waiver of the right to be present at trial and

to confront adverse witnesses. The Sixth

Circuit has misinterpreted Zerbst, supra to

require a personal on-the-record statement from

the accused to waive the right of confrontation

at a pre-trial deposition. This view

2%.

contradicts precedent from this Court as well as

state and federal circuit courts.

Respondent bears a heavy burden of

demonstrating entitlement to a writ of habeas

corpus. Nevertheless, the Sixth Circuit has

granted the writ even though respondent has

offered no proof in support of his claim that he

was denied the right of confrontation. Under

Polizzi, King and Taylor, supra, his voluntary

failure to attend the deposition should have

been deemed waiver of the right to be present

and to confront Elam. At a minimum, the Sixth

Circuit should have allotted the burden to

respondent to prove lack of notice as this was a

habeas corpus proceeding. Polizzi, at 1321.

Instead, the Sixth Circuit has placed the onus

upon the Commonwealth to prove respondent

personally received actual notice and consented

to counsel’s conduct. Thus, the Sixth Circuit

has erroneously granted a writ of habeas corpus

-94-

when the most to which respondent was entitled

was a hearing in federal district court to give

him yet another Opportunity to explain why he

did not attend Elam’s deposition and why he

failed to contact his attorney.

CONCLUSION

The petition for writ of certiorari

should be granted.

* Attorney of Record for Petitioner

Respectfully submitted,

CHRIS GORMAN

ATTORNEY GENERAL

CarmtC. Ullerid

BY: CAROL C. ULLERICH*

ASSISTANT ATTORNEY GENERAL

CRIMINAL APPELLATE DIVISION

P. O. BOX 2000

1024 CAPITAL CENTER DRIVE

FRANKFORT, KENTUCKY 40602-2000

(502) 564-8308

COUNSEL FOR PETITIONER

«28.