Appendix — Sowders v. Carter

i

Supreme Court, U.S.

2) FILED

A

93150 0 MAR 16 1994

NO. OFFIC: OF THE CLERK

IN THE

SUPREME COURT OF THE UNITED STATES

October Term, 1993

DEWEY SOWDERS, WARDEN PETITIONER

- versus -

CLAUDE EARN CARTER RESPONDENT

PETITIONER'S APPENDIX

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

APPENDIX

item

Opinion, United States Court

of Appeals for the Sixth Circuit,

September 27, 1993 ---------------

Order, United States Court of

Appeals for the Sixth Circuit ----

Magistrate Judge’s Report, United

States District Court for the

Western District of Kentucky,

September 5, 1991 --<--------------

Order and Judgment, United States

District Court for the Western

District of Kentucky,

October 31, 1991 -----------------

Discussion Preceding Deposition

of Charles Edward Elam,

Je., Jume 30, 1986 <-<e+e+e-+-------

28-30

31-49

50-51

RECOMMENDED FOR FULL-TEXT PUBLICATION

Pursuant to Sixth Circuit Rule 24

No. 91-6419

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

CLAUDE EARN CARTER,

Petitioner-Appellant,

ON APPEAL from

the United

States District

Court for the

Western District

DEWEY SOWDERS, Warden, of Kentucky

Northpoint Training Center,

Respondent -Appellee.

eee ee ee ee ee ee

Decided and Filed September 27, 1993

Before: MERRITT, Chief Judge; and KEITH and

SUHRHEINRICH, Circuit Judges.

- MERRITT, Chief Judge. Claude Earn Carter

appeals the denial of his petition for a writ of

habeas corpus pursuant to 28 U.S.C. §2254.

Petitioner was convicted of possession of

marijuana and trafficking in LSD. Central to

his conviction was the testimony of Charles

Elam, Jr., a paid police informant. Elam’s

video deposition was taken in the absence of

both petitioner and his counsel, and the

deposition was later admitted, over petitioner’s

objection, at trial. Because petitioner did not

waive his constitutional rights under the

Confrontation Clause to confront his accuser and

subject his testimony to cross-examination, the

deposition did not bear adequate indicia of

reliability for admission at trial. We

therefore reverse the district court and grant

the petition.

he

Charles Elam was a salaried narcotics agent

with the Dyersburg, Tennessee Police Department,

earning $150/week. According to Elam’s

deposition testimony, Elam and Billy Driskell

purchased marijuana and LSD from petitioner at a

house trailer in Kentucky on November 3, 1985,

and returned to Tennessee. Elam then took a

group of Tennessee police officers to Kentucky

and showed them the trailer where the drugs were

purchased. The trailer was searched under

warrant November 5, and Carter was arrested

while working in the fields near the trailer.

He denied ownership of marijuana found in the

trailer, or that he had ever met Elam.

Carter was indicted by the Logan County,

Kentucky, Grand Jury on December 27, 1985 for

the drug offenses and for being a first degree

persistent felony offender. He was arraigned

January 17, 1986, and the trial was set for

April 24 of that year. In preparation for

trial, the Commonwealth moved March 4 to take a

videotape deposition of Elam, giving no specific

ground. A second motion was filed March 29,

this time alleging that a pretrial deposition

was necessary, since the Commonwealth could not

secure the attendance of Elam, a Tennessee

resident, at Carter’s trial in Kentucky. The

court granted the motion. On April 14, the

Commonwealth subpoenaed three Kentucky police

officers to appear at Carter’s trial ten days

later. No subpoena was issued for Elam, nor

were other efforts made to secure his

attendance. On April 23, Carter’s trial was

continued from April 24 to September 25, 1986.

The next day, the Commonwealth filed an ex parte

petition, pursuant to Tennessee’s Uniform

Non-Resident Witness Act, to secure the

attendance of Elam for the purpose of deposing

him May 15, 1986. The court granted the

petition within a day. There was no deposition

on May 15. Instead, the Commonwealth filed

another ex parte petition, this time pursuant to

Oklahoma’s Uniform Non-Resident Witness Act, to

secure Elam’s presence in Kentucky to depose him

June 30. The petition was granted the same day.

On June 5, the prosecutor wrote Carter’s

counsel, Louis Waller, notifying him of Elam’s

deposition on June 30 and stating that the

"deposition will be read at [Carter’s] trial" in

September. According to Waller’s statement at

the June 30 deposition, he did not receive the

notice until June 20. He then sent a letter to

Carter, informing him of the deposition and

Stating "you may wish to be present." Waller

received no response to the letter or to several

subsequent phone calls made prior to the

deposition. The trial court specifically found

there was "no evidence that [Carter] had notice

that he was suppose [sic] to be there."

The deposition was held as scheduled June

30. Waller appeared, but told the prosecutor

that he could not effectively represent Carter

without his presence. He further indicated that

he intended to withdraw from the case. He then

left the deposition, but not before pointing out

to the prosecutor that if Elam could be

compelled to come to Kentucky for a deposition,

there was no reason why he could not be present

for trial in September. The prosecutor

proceeded to depose Elam in the absence of

petitioner and his counsel, and without any

cross-examination. Two days after the

deposition, the Commonwealth moved for a ruling

on the admissibility of the deposition at trial

in lieu of live testimony.

In preparation for the new September 25

trial date, the Commonwealth issued subpoenas

for seven witnesses September 8. Elam was not

among them. The court having granted Waller’s

motion to withdraw, new counsel was appointed

for Carter September 9. The following day, the

court continued the trial to January 5, 1987.

Approximately one week later, Carter’s new

counsel moved to quash Elam’s deposition, on the

grounds that Carter was denied his

constitutional right to confront his accuser at

the deposition. The motion was not denied until

trial, almost four months later.

On December 18, 1986, less than chree weeks

prior to trial and more than five months after

Elam’s deposition, the prosecutor wrote Elam in

Oklahoma notifying him of the new trial date and

Stating he "would like for [him] to come back to

Kentucky in order to testify in person." On the

same day, the prosecutor wrote the Logan Circuit

Court Clerk, asking that a subpoena be issued

for Elam. The letter to Elam was returned to

the prosecutor because of an expired forwarding

order, and the subpoena was issued bearing the

Same address, but was not served. The

prosecutor made a one-minute phone call to

Oklahoma December 26, a four-minute phone call

to Union City, Tennessee December 31, and four

days prior to trial, on January 2, 1987, nine

phone calls to Oklahoma lasting a total of

sixteen minutes, in an effort to locate Elam.+

The trial commenced January 6, i987.

Immediately prior to trial, Carter’s counsel

stated on the record that although his motion to

quash Elam’s deposition had been argued, it had

not been transcribed, and he reiterated his

objections to its admission. He argued that the

absence of Carter at Elam’s deposition denied

him his right to confront his accuser. He also

emphasized to the court that the Commonwealth

had used the Uniform Non-Resident Witness Act to

procure Elam’s attendance at his deposition, but

had not made a similar effort to obtain his

1 The phone bill listing these calls appeared

in the prosecutor’s Motion to Supplement, filed

one month after Carter’s trial. The identities

of the parties called were not given.

«Qe

een nee

presence at trial. The motion was overruled and

the deposition was read as the Commonwealth’s

first witness. One of the police officers also

testified concerning what Elam had told him

prior to taking them to Kentucky to show them

the trailer. The trial court overruled

petitioner’s objection to introduction of this

hearsay testimony.

The jury found Carter guilty of possession

of marijuana and trafficking in LSD, and of

being a first degree persistent felony

offender. Carter appealed. The Kentucky

Supreme Court upheld his substantive

convictions, but reversed his first degree

persistent felony offender conviction due to

insufficient evidence. Carter v. Commonwealth,

782 S.W.2d 597, 602 (Ky. 1989). After his

petition for writ of certiorari to the United

States Supreme Court was denied, 497 U. S. 1029

(1990), Carter filed a petition for writ of

Is ee ee, ee oe ee ee ee ee eS ae

ee Tae Se, ee re

_Y. a)

ree i ee ey OE

habeas corpus in the district court, which was

denied November 1, 1991. Carter filed a Motion

for Certificate of Probable Cause in this Court

March 10, 1992, which we granted April 15, 1992.

9 -

Petitioner’s claims on appeal all revolve

around Elam’s testimony. Petitioner asserts

that the prosecutor’s decision to continue

Elam’s deposition after the departure of

petitioner’s attorney denied him his Sixth

Amendment right to counsel, and his right under

the Fifth, Sixth and Fourteenth Amendments to be

present at all critical stages of the proceeding

against him. Petitioner further contends that

the failure of the trial court to suppress the

deposition at trial violated his Sixth Amendment

right to confront his accuser, due both to the

Commonwealth’s lack of a good-faith effort to

obtain Elam’s presence at trial and due to the

inherent unreliability of a deposition not

-10-

ieee a aia

subjected to cross-examination. Finally, he

asserts the admission of Elam’s hearsay

statements through the officer’s testimony at

trial was reversible, not harmless, error. We

review de novo a district court’s refusal to

grant a habeas petition, and the district

court’s factual determinations are reviewed

under the clearly erroneous standard. McCall v.

Dutton, 863 F.2d 454, 459 (6th Cir. 1988), cert.

denied, 490 U.S. 1029 (1989). We defer to state

court findings if supported by the evidence.

Lundy v,. Campbell, 888 F.2d 467, 469 (6th Cir.

1989), cert. denied, 495 U.S. 950 (1990).

The Sixth .mendment on its face guarantees a

criminal defendant the right "to be confronted

with the witnesses against him." The Supreme

Court has recognized that this language "comes

to us on faded parchment ... with a lineage that

traces back to the beginnings of Western

Culture." Coy v., Iowa, 487 U.S. 1012, 1015

-43-

4

(1988). "The Confrontation Clause provides two

types of protection to the criminal defendant:

the right physically to face those who testify

against him, and the right to conduct

cross-examination." Pennsylvania v. Ritchie,

480 U.S. 39, 51 (1987). Both protections are

crucial. "There is something deep in human

mature that regards face-to-face confrontation

between accused and accuser as ‘essential to a

fair trial in a criminal prosecution.’" Coy,

487 U.S. at 1017 (quoting Pointer v. Texas, 380

U.S. 400, 404 (1965)). Similarly, the

Confrontation Clause "forces the witness to

submit to cross-examination, the ‘greatest legal

engine ever invented for the discovery of

truth,’" California v. Green, 399 U.S. 149, 158

(1970) (quoting 5 J. Wigmore, Evidence § 1367,

(3d ed. 1940)).

Against this backdrop, the absence of

Carter’s counsel during Elam’s deposition

-$2-

ee ee eee ee ee ee ee ee ee Le ee ee a

demands close scrutiny. As the Supreme Court

stated in United States v. Cronic, 466 U.S. 648

(1984):

[I]£ counsel entirely fails to subject

the prosecution’s case to meaningful

adversarial testing, then there has

been a denial of Sixth Amendment rights

that makes the adversary process itself

presumptively unreliable.... The Court

has uniformly found constitutional

error without any showing of prejudice

when counsel was either totally absent,

or prevented from assisting the accused

during a critical stage of the

proceeding.

) Id. at 659 &n. 25. In Green v. Arn, 809 F.2d

1257 (6th Cir.), vacated on other grounds, 484

U.S. 806 (1987), reinstated, 839 F.2d 300 (6th

Cir. 1988), cert. denied, 488 U.S. 1034 (1989),

this court had the opportunity to apply Cronic ‘

} in a situation where defense counsel absented

himself from petitioner’s trial while the

prosecution was presenting its case. Counsel

for two other defendants in the case was

present, and conducted cross-examination of the

~tRq

RE Ee ae ee ee, oe ee a oe

state’s first witness. Nevertheless, we found

that petitioner’s rights under the Confrontation

Clause had been violated by the absence of her

counsel during this critical stage of the

proceeding:

It is difficult to perceive a more

critical stage of a trial than the

taking of evidence on the defendant’s

guilt.... The absence of counsel

during the taking of evidence on the

defendant’s guilt is prejudicial per se

and justifies an automatic grant of the

writ "without any opportunity for a

harmless error inquiry." Siverson v.

O'Leary, 764 F.2d 1208, 1217 [&n.6)

(7th Cir. 1985).

Id. at 1263.

This case is similar to Green. It is

undisputed that Elam’s videotaped testimony was

the sole evidence supporting Carter’s conviction

for the drug offenses of November 3, 1985.

Although Lt. Ken Rieger was present to be

cross-examined at trial, his information

concerning the November 3 transactions came

entirely from discussions with Elam. He did not

-14-

travel to Kentucky until November 5. The taping

of the deposition was, for all practical

purposes, the ‘only time "evidence on the

defendant’s guilt" was taken. The unmitigated

absence of cross-examination at this time meant

that Elam’s testimony was never subjected to

"the crucible of meaningful adversarial

testing," Cronic, 466 U.S. at 656. Of course,

Green is distinguishable on its facts; the

absence of Green’s counsel occurred at trial,

rather than at a pre-trial deposition. We do

not explicitly extend today the holding in Green

to cover pre-trial depositions as well as

trials, nowever similar the impact on the

defendant’s Confrontation Clause rights. But

Our reasoning in Green supports our conclusion

here that Elam’s videotaped deposition was

hearsay, and was improperly admitted under the

-15-

"unavailable witness" exception, Ky. R. Evid.

804 (Baldwin 1992) .2

é Ky. R. Evid. 804 states in relevant part:

Hearsay exceptions: declarant unavailable

(a) Definition of unavailability.

"Unavailability as a witness" includes

situations in which the declarant:

(5) Is absent from the hearing and the

proponent of the statement has been

unable to procure the declarant’s

attendance by process or other

reasonable means.

(b) Hearsay exceptions. The following

are not excluded by the hearsay rule if

the declarant is unavailable as a

witness:

(1) Former testimony. Testimony

given as a witness at another hearing

of the same or a different proceeding,

or in a deposition taken in compliance

with law in the course of the same or

another proceeding, if the party

against whom the testimony is now

offered, or, in a civil action or

proceeding, a predecessor in interest,

had an opportunity and similar motive

to develop the testimony by direct,

cross, or redirect examination.

o%46«

Ky. R. Evid. 804 is substantially identical

to Fed. R. Evid. 804, lacking only the residual

hearsay exceptions permitted by subsection (5)

of the federal Rule. In Qhio v. Roberts, 448

U.S. 56 (1980), the Supreme Court set forth the

standard to be applied in defending this hearsay

exception against Confrontation Clause claims:

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 exception. In

other cases, the evidence must be

excluded, at least absent a showing of

particularized guarantees of

trustworthiness.

id. at 66. In Barber v. Page, 390 U.S. 719,

724-25 (1968), the Court articulated the burden

Re Pe ee, Ce ee ee a

< eis) te ie

Sa a ee, er

which must be met by the Commonwealth to satisfy

the "unavailability" prong of the foregoing

test: "a witness is not ‘unavailable’ ... unless

oF.

the prosecutorial authorities have made a

good-faith effort to obtain his presence at

trial." The test for review of compliance with

this standard defies precise explication: "The

lengths to which the prosecution must go to

produce a witness ... is a question of

reasonableness." Qhio v. Roberts, 448 U.S. at

74 (citing California v. Green, 399 U.S. at 189,

n.22 (concurring opinion)).

We find it unnecessary to reach the issue of

whether the Commonwealth’s attempts to secure

Elam’s attendance at trial satisfy the

good-faith effort test enunciated in Barber,

however, because we hold that Elam’s deposition,

taken in violation of Carter’s rights under the

Confrontation Clause, could not satisfy the

"other adequate indicia of reliability” standard

imposed by the unavailable witness exception to

the hearsay rule. Elam was not forced to

confront Carter as he gave his deposition. He

-18-

——— eee

. a

4

was not cross-examined. These circumstances

could not provide the trier of fact with "a

satisfactory basis for evaluating the truth of

the prior statement." Dutton v. Evans, 400 U.S.

74, 89 (1970).

The Commonwealth argues that the Qhio v.

Roberts test is met in this case, because Elam’s

deposition was admitted under a "firmly rooted

hearsay exception," 448 U.S. at 66, namely Ky.

R. Crim. Proc. 7.20(1), which provides in

relevant part:

At the trial or upon any hearing, a

part or all of a deposition, go far as

evidence, may be used if it appears:

that the witness is out of the

Commonwealth of Kentucky, unless it

appears that the absence of the witness

| was procured by the party offering the

deposition; or ... that the party |

offering the deposition had been unable

to procure the attendance of the

witness by subpoena.

(emphasis supplied). This argument is without

merit. As the emphasized portion of the

o20-

preceding text shows, the rule governs

production of evidence subject to the rules of

evidence. Hearsay evidence from unavailable

witnesses is governed by Ky. R. Evid. 804(b) (1),

which includes the requirement that the party

against whom the testimony is now offered had a

prior "opportunity and similar motive to develop

the testimony by direct, cross, or redirect

examination." But this is the very opportunity

that was denied to Carter. The requirements of

the exception are not met.

The Commonwealth contends that Carter waived

his Sixth Amendment rights through his failure

to attend the deposition after his attorney sent

him written notice and tried to contact him

several times by phone. It is not clear why

this assertion, if true, would overcome the

reliability problem with the deposition.

Furthermore, we disagree with the premise.

Waiver of the right to confront one’s accuser is

o26-

i .

= ae

—

’

&

evaluated according to the standards for waiving

any constitutional right as enunciated in

Johnson v. Zerbst, 304 U.S. 458, 464 (1938), and

requires "an intentional relinquishment or

abandonment of a known right or privilege." The

right "may be waived only by voluntary and

knowing action." Boyd v. Dutton, 405 U.S. 1,

2-3 (1972). The trial court found that there

was no evidence that Carter ever received the

letter from his attorney concerning the

deposition, and that finding is presumed

correct. 28 U.S.C. §2254{d). Furthermore, the

letter, even if received, did not inform Carter

of his constitutional right to attend, nor did

it urge him to exercise that right ("you may

wish to be present") (emphasis supplied). Most

importantly, the letter did not provide Carter

with any notice of the consequences if he failed |

to appear -- that his attorney would leave the

deposition and permit the state’s key witness to

o24-

be deposed without any cross-examination

whatsoever. Although a waiver may be implied

and not express, there must be evidence in the

record to support that implication. This

court’s statement in Evans v. United States, 284

F.2d 393 (6th Cir. 1960) is directly applicable:

"the record does not show that defendant knew or

was advised of his rights. In order to

constitute a waiver, there must be a voluntary

relinquishment of a known right." Id. at 395.

We find Carter did not personally waive his

right to confront Elam.

The district court found that Carter

nonetheless effected a waiver of this right

through the actions of his attorney, who

appeared for the deposition and then departed.

We find this conclusion inconsistent with

Zerbst. As the Second Circuit stated in United

States v. Crutcher, 405 F.2d 239, 243 (2d Cir.

1968), cert. denied, 394 U.S. 908 (1969),

-23-

referring to defense counsel’s decision to

proceed with jury impanelling in the defendant’s

absence: "(E])ven assuming [counsel] had the

authority to act as Payne’s counsel, he would

not have the ability to bind Payne to a decision

of this type without obtaining Payne’s

consent." The Tenth Circuit came to a similar

conclusion in Larson v. Tansy, 911 F.2d 392, 396

&n.2 (10th Cir. 1990):

The record indicates defendant’s

counsel, and not defendant, waived

defendant’s right of presence at

trial. The trial court never directly

addressed defendant concerning his

counsel’s request to conduct the

remainder of the trial in defendant’s

absence. We hold that defendant did

not waive his right to be present....

Even if defense counsel could have

validly waived defendant’s right to be

present for the conclusion of his

trial, where defense counsel did not

consult with defendant concerning the

waiver and did not obtain defendant’s

consent, the waiver will not be binding

on defendant.

We similarly find that, even if Waller’s actions

at the deposition could constitute a waiver of

o33-

the defendant’s rights under the Confrontation

Clause, the waiver would not bind Carter in the

absence of a showing that he consented.? As

3 The Kentucky Supreme Court found that

"Carter’s right to confront Elam at the

deposition was waived" because "[a]mple notice

of the deposition was provided to Carter’s

counsel ... There was no evidence that Carter,

personally, had a legal reason why he was unable

to attend, and no proof that his presence would

have made a difference." Carter, 782 S.W.2d at

599. This obviously conflicts with our reading

of Zerbst. Moreover, the Kentucky Supreme Court

made statements in an opinion decided the same

day, Dean v. Commonwealth, 777 S.W.2d 900 (Ky.

1989), that would lead to precisely the opposite

result from that reached in Carter:

We hold that because the right to be present

and to confront is personal to the accused

under Section 11 of the Kentucky

Constitution, and more particularly under

(Ky. R. Crim. Proc.] 7.12, only the

defendant can waive this right. The waiver

must be sufficiently clear "as to indicate a

conscious intent." Powell v. Commonwealth,

346 S.W.2d 731, 734 (1961)....

[A] ppellant’s counsel waived appellant’s

right to be present at the depositions of

the two prosecution witnesses. There is no

-24-

the Supreme Court stated in Faretta v.

California, 422 U.S. 806, 819 (1975): "It is the

accused, not counsel, who must be ‘informed of

the nature and cause of the accusation,’ who

must be ‘confronted with the witnesses against

him’ .... The right to defend is given directly

to the accused; for it is he who suffers the

consequences if the defense fails."

We address finally the argument advanced by

the Commonwealth that our ruling today will give

indication in the record that it was

appellant’s conscious intent to waive this

right and his consequent right to

cross-examination. Counsel’s waiver being

ineffective, there was no waiver....

Appellant was not present; nor was he

afforded the right to confront and

cross-examine the witnesses called to

testify against him.

Id at 903. We can discern no reason why a

different standard was used in deciding Carter's

fate. .

35-

every defendant’s lawyer the power to obtain

habeas relief for a client, merely by neglecting

to inform the client of opportunities to

confront his accusers. We rejected this

argument in Martin v. Rose, 744 F.2d 1245

(1984), and see no reason to depart from our

reasoning in that case:

(W]e are unwilling to assume that

members of the bar will cold-bloodedly

adopt [such a) bizarre and

irresponsible stratagem.... If such a

tactic develops, the trial court must

respond, but it is not helpless before

an attorney’s [tactics]).... [T]he

court’s contempt power or the

disciplinary mechanism of the bar may

be appropriately invoked.

id. at 1251-52.

Iil.

Carter had the right to confront Elam, his

accuser. Denial of that right without a valid

waiver rendered Elam’s deposition unreliable for

purposes of admissibility at trial over a

hearsay objection. Because Carter’s conviction

o36-

was based solely on Elam’s testimony, the error

was not harmless. We therefore REVERSE the

decision of the district court, and GRANT the

petition for writ of habeas corpus.

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

No. 91-6419

CLAUDE EARN CARTER,

Petitioner-Appellant

DEWEY SOWDERS, WARDEN,

NORTHPOINT TRAINING CENTER,

Respondent -Appellee

mee ee ee ee eee ee

Before: MERRITT, Chief Judge; KEITH and

SUHRHEINRICH, Circuit Judges

The Kentucky Attorney General’s petition to

rehear this habeas appeal is denied. The entire

thrust of the petition is that petitioner Carter

had notice of the deposition used in

substitution for live testimony at Carter’s

criminal trial and that Carter knowingly waived

his right of confrontation. This one point is

repeated time and again for fifteen pages. The

problem with this repeated point is that the

-38-

record demonstrates that it is simply factually

inaccurate, as our previous opinion concludes,

and as the state trial judge flatly found as a

fact. The state trial judge found that there is

no evidence that [Carter] failed to show for the

deposition in this case. There is no evidence

that he had notice he was supposed to be there.

This Court is not empowered to set aside the

reasonable factual findings of the Kentucky

trial court, undisturbed by the state appellate

courts. Thus the only significant evidence at

Carter’s criminal trial was a deposition of

Carter’s chief accuser, a deposition Carter had

no notice of. Under the Confrontation Clause

live testimony subject to cross-examination is

required in order to convict in such a case.

Accordingly, the petition to rehear is

DENIED.

-29-

ENTERED BY ORDER OF THE COURT

Leonard Green, Clerk

-30-

7. eae Sew ee we ee Se” ey ee oe

UNITED STATES DISTRICT COURT |

WESTERN DISTRICT OF KENTUCKY |

AT BOWLING GREEN

CLAUDE EARN CARTER

Plaintiff

—— Terk ee

Vv. No. 90-0197BG(M)

DEWEY SOWDERS, Warden

Defendant

MAGISTRATE JUDGE’S REPORT

This habeas corpus petition is before the

Court on the respondent’s motion to dismiss or,

in the alternative, for summary judgment (docket

no. 5) and the petitioner’s cross-motion for

summary judgment (docket no. 9). The petition

requires an analysis of whether the petitioner

was denied the right to confront one of the

witnesses against him and whether he was denied

~~ ee ee ee ee Se a oe ee ie in

the right to counsel at a critical stage of the

proceeding against him. Because the petitioner

was not denied his Sixth Amendment right to

confrontation and because he was represented by

counsel, he is not entitled to the writ.

The petitioner was indicted in Logan County,

Kentucky, on several drug charges. Following

trial, a jury found him guilty of possession of

more than eight ounces of marijuana and

possession of LSD. The jury fixed the

petitioner’s sentence on the LSD charge at the

maximum of ten years and on the marijuana charge

at the maximum of five years. The jury also

found the petitioner guilty of being a first

degree persistent felony offender and enhanced

each of his sentences to thirteen years.

The petitioner challenges his convictions of

possession of marijuana and possession of LSD.

He claims that the convictions are

constitutionally invalid because they were based

upon evidence from a witness whom he was denied

the right to confront. Specifically, he claims

that a video deposition of a police informant

-32-

was wrongfully admitted at his trial because

there was no showing that the deponent was eee}

"unavailable" for trial and the deposition

lacked any "indicia of reliability” because the

deponent was not tested by cross-examination.

Thus, he claims, his right to confrontation of a

witness against him as guaranteed by the Sixth

Amendment to the United States Constitution was

violated.

The testimony of which the petitioner

complains was that of Charles Elam. The

petitioner labels Elam a "paid police

informant." The respondent labels him a

"salaried narcotics agent with the Dyersburg

Tennessee Police Department."

Prior to trial, the Commonwealth had deposed

Elam. The deposition was necessary, according

to the Commonwealth, because Elam was a

Tennessee resident and the Commonwealth lacked

the power to insure his attendance at the

°33-

petitioner’s trial in Kentucky. The

petitioner’s counsel appeared at the deposition,

but the petitioner did not. His attorney stated

that he had written to the petitioner on June

20, 1986, advising him, "you may wish to be

present," and had made other efforts to contact

the petitioner, to no avail.

Counsel stated at the deposition that he had

moved the Court to withdraw as the petitioner’s

counsel and did not plan to remain for the

deposition because, without the petitioner’s

presence, he could not effectively represent

him. After the petitioner’s counsel departed,

the Commonwealth deposed Mr. Elam. Because

neither the petitioner nor his counsel was

present, Mr. Elam was not cross-examined.

The video deposition was introduced at trial

over the petitioner’s objection. In essence,

Elam’s testimony was that he met the petitioner

at a trailer where approximately 100 pounds of

-34-

marijuana was located, the petitioner "fronted"

Elam and another person ten bags of marijuana,

and he sold Elam eight "hits" of LSD.

ANALYSIS

The petitioner argues that he was denied the

right to confront Elam at the deposition. The

deposition was, therefore, inadmissible at trial

and his conviction based upon the deposition,

accordingly, was constitutionally tainted.

The Sixth Amendment’s Confrontation Clause,

made applicable to the States through the

Fourteenth Amendment, Pointer v. Texas, 380 US

400, 403-405, 13 L.Ed.2d 923, 85 S.Ct. 1065

(1965), provides: "In all criminal prosecutions,

the accused shall enjoy the right ... to be

confronted with the witnesses against him."

Nearly one hundred years ago the Supreme Court

stated that:

The primary object of the

(Confrontation Clause of the Sixth

Amendment] ... was to prevent

o 38

a

depositions or ex parte affidavits

being used against the prisoner in lieu

of 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 by

his demeanor upon the stand and the

manner in which he gives his testimony

whether he is worthy of belief."

Mattox v. United States, 156 US 237,

242-243, 39 L.Ed.2d 409, 411, 15 S.Ct.

337 (1895).

The Confrontation Clause restricts the

admissibility of evidence in two ways, both of

which the petitioner claims were violated at his

trial. First, if the prosecution does not

produce at trial the declarant whose statement

it wishes to use against the defendant (thus

denying the defendant the right to confront him)

it must demonstrate the "unavailability" of the

declarant. If the declarant is not produced and

the prosecution fails to show that he is

unavailable, the evidence is not admissible.

o%6-

Barber v. Page, 390 U.S. 719, 20 L.Ed.2d 255, 88

S.Ct. 1318 (1968).

Second, even upon showing that the absent

witness is "unavailable", the evidence is

admissible only if it bears "adequate indicia of

reliability." Qhio v. Roberts, 448 U.S. 56, 100

S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980).

If Elam was not "unavailable" or if the

assertions in his deposition did not bear

"adequate indicia of reliability", the evidence

violated the Confrontation Clause. The

magistrate judge will first address whether the

prosecution demonstrated that Elam was

"unavailable."

The Kentucky Supreme Court, in addressing

whether the prosecution made a good faith effort

to locate Elam for attendance at trial, did not

recite the prosecution’s efforts. Rather, the

court held that such a determination is

"addressed to the sound discretion of the trial

-37-

court." The court held that the trial court had

not abused its discretion in finding that Elam

was "unavailable" for trial.

Contrary to the respondent’s argument, this

finding is not entitled to a presumption of

correctness under 28 U.S.C. §2254(d). Summer v.

Mata, 455 U.S. 591, 102 S.Ct. 1303, 71 L.Ed.2d

480 (1982). It is, instead, a mixed question of

fact and law that is to be reviewed de novo.

Clark v. Jago, 676 F.2d 1099, 1110 n.15 (6th

Cir. 1982).

The petitioner states in his summary

judgment motion, and the respondent does not

dispute, that the prosecution made the following

attempts to make Elam "available" for trial. On

December 18, 1986, nineteen days prior to trial,

the prosecutor sent a letter to Elam in Oklahuma

notifying him of the January 6, 1987, trial date

and stating he "would like for [him] to come

back to Kentucky in order to testify in

$0.

person." (TR I 108). The letter was returned

to the prosecutor on December 23 indicating

Elam’s forwarding order had expired. Also on

December 18, 1986, the prosecutor wrote to the

Logan Circuit Court Clerk asking him to issue a

subpoena for Elam. (TR I 146-147). The

subpoena was issued on December 24, 1986, and

mailed to the same Oklahoma address. The

prosecutor made telephone calls to Little

Caesar’s Bar in Oklahoma City where Elam

allegedly worked, to Little Caesar’s main

office, to other stores in the Oklahoma City

area, and to the Union City, Tennessee Police

Department in an attempt to locate Elam. (TR I

105-107, 145; TR II 78-88).

On April 14, 1986, the Commonwealth

subpoenaed three Kentucky police officers to

appear at the April 24 trial. No subpoena was

issued for Elam, nor was any other effort made

-39-

to apprise him of the trial or request his

presence.

On April 23, 1986, the trial was continued

until September 25, 1986. On April 24, 1986,

the Commonwealth filed an ex parte petition,

pursuant to Tennessee’s Uniform Non-Resident

Witness Act, to secure the attendance of Elam

for purposes of deposing him on May 15, 1986.

The petition was granted.

On May 15, 1986, the Commonwealth filed

another ex parte petition, this time pursuant to

Oklahoma’s Uniform Non-Resident Witness Act, to

secure Elam’s presence in Kentucky for a

deposition on June 30, 1986. That petition was

also granted.

Additionally, the Kentucky Supreme Court

found that:

Elam was asked on deposition where he

would be ‘come September of this year

when this case comes to trial’, to

which he replied, vaguely, ‘Honestly I

-40-

can’t say, but I hope to be back in

Oklahoma.’

Carter v. Commonwealth, Ky., 782 S.W.2d

597, 599 (1990). -

The petitioner argues that the prosecution

did not make a good-faith effort to procure Elam

to testify at trial. If the prosecution had

intended to produce Elam at trial, the

petitioner argues, it would have obtained a

subpoena for him when the subpoenas for other

witnesses were issued and it would have

subpoenaed him for trial at the time that it

subpoenaed him for deposition. He also argues

that the prosecution’s failure to use the

Kentucky Uniform Non-Resident Witness Act, KRS

421.250, to procure Elam for trial further

supports the allegation that the prosecution did

not make a good faith effort to produce Elam.

It does appear that the prosecution

initially may have been concerned more with

deposing Elam and presenting his deposition

-4l1-

te ee eS ee aa aie hs

attrial rather than assuring that Elam would

personally appear. This may have been because

the prosecution feared that it would not be able

to locate Elam in order to subpoena him at the

time of trial or it may have been to accommodate

Elam’s apparent desire that he not have to

return to Kentucky because he was afraid of the -

petitioner. The question is, however, whether

there was a good faith effort to locate Elam for

trial. The magistrate judge finds that there

was. The efforts made are noted above. That

little effort was made prior to the earlier

trial dates does not detract from the attempts

to locate Elam prior to the ultimate date on

which the trial was held. The petitioner’s

arguments that the prosecution did not subpoena

Elam for trial and did not utililze the

non-resident witness act are not persuasive. In

order to do either, the prosecution would have

to know Elam’s location. The prosecution

-42-

asserted that it did not know where to find Elam

and there is no evidence in contradiction.

Further, the prosecution could not have served

upon Elam at the deposition a subpoena to appear

at trial because such service is prohibited by

KRS 421.260 (a person is not subject to subpoena

for trial when he was present in the

jurisdiction only by reason of a court order to

attend and testify by deposition). Having found

that Elam was unavailable, we turn to whether

his testimony through deposition bore "adequate

indicia of reliability."

The Kentucky Supreme Court did not directly

address whether the testimony met the "adequate

indicia of reliability." Rather, it relied on

RCr 7.20 which "authorizes the use of a

deposition in appropriate circumstances relating

to unavailability, as specified therein."

Carter, id. at 600. As noted above, the

"adequate indicia of reliability" issue is an

-43-

integral part of determining whether the

requirements of the confrontation clause were

met. The issue was presented for the Kentucky

Court’s consideration. That the Court did not

address it does not constitute a failure to

exhaust his remedies as to that issue. We,

therefore, will consider the issue.

As previously noted, the deposition was

admissible at trial only if the evidence

presented bore "adequate indicia of

reliability." jio v. Roberts, 448 U.S. 56, 160

S.Ct. 2531, 2539, C5 L.Ed.2d 597 (1980). The

petitioner argues that there was no indicia of

reliability because the deposition was hearsay

evidence and because the deposition was

improperly conducted without either himself or

his attorney present.

The deposition was not hearsay evidence. -

Rather, it was properly admissible pursuant to

FRCP 804 "Hearsay Exceptions; Declarant

-44-

Unavailable." The rule provides in pertinent

part:

(b) Hearsay exceptions. The

following are not excluded by the

hearsay rule if the declarant is

unavailable as a witness:

(1) Former testimony.

Testimony given as a witness at another

hearing of the same or a different

proceeding, or in a deposition taken in

compliance with law in the course of

the same or another proceeding, if the

party against whom the testimony is now

offered, or, in a civil action or

proceeding, a predecessor in interest,

had an opportunity and similar motive

to develop the testimony by direct,

cross, or redirect examination.

Here, Elam’s deposition was taken in the

course of the proceeding against the petitioner

and the petitioner, through his attorney, had

the opportunity to cross examine him. The

petitioner argues that there is no evidence that

he personally had notice of the deposition and

that he could not, accordingly, have waived his

right to examine Elam when he did not know that

the deposition was to take place. He argues

-45-

that "clearly" due to his absence at the

deposition, he was denied his right of an

opportunity to cross examine Elam.

The petitioner’s arguments miss the mark.

His attorney was present at the deposition. He

stated that he had written the petitioner

advising him that he "may wish to be present" at

the deposition. The petitioner does not state

whether he received the letter of his attorney.

Instead, he argues that there is no evidence in

the record that he did. Indeed, the trial court

found that there was no such evidence and that

finding is presumed correct. 28 USC 2254(d).

Whether the petitioner received the notice is

not dispositive of the matter. His attorney was

present at the deposition. The petitioner

argues that "once the prosecutor was on notice

that Petitioner’s counsel intended to withdraw,

he should have postponed the deposition until it

was clear that Petitioner was represented by

-46-

counsel." This is the basis for the

petitioner’s assertion that he was denied

counsel at a critical stage of the proceedings.

Although the petitioner’s counsel indicated that

he had moved to withdraw from representing the

petitioner, the motion had not been ruled upon

by the Court. Until his motion was granted, it

was clear that he wag, nonetheless, the

petitioner’s attorney. As the petitioner’s

attorney, he had the opportunity to cross

examine Elam or to waive cross examination on

behalf of the petitioner. The attorney did not

request that the deposition be postponed nor did

he object to its occurrence. The Opportunity to

challenge Elam’s testimony was there. The

plaintiff, through his attorney, chose not to

take advantage of it.

In Idaho v. Wright, 497 U.S. __, 110 S.Ct.

3139, 3146, 111 L.Ed.2d 638 (1990), the Supreme

Court held that the reliability of evidence

-47-

OO a

a ee

—_

presented by an unavailable witness can be

inferred without more where the evidence falls

within a firmly rooted hearsay exception. The

evidence produced at trial through the video

deposition of Elam falls within FRCP 803(b) (1).

It was properly admitted at trial as an

exception to hearsay.

RECOMMENDATION

The Magistrate Judge RECOMMENDS that the

petition for writ of habeas corpus be DENIED.

Date: August 25, 1991

W. DAVID KING

United States Magistrate Judge

NOTICE

Pursuant to Title 28 USC §636 and Rule 6(e)

of the Federal Rules of Civil Procedure, the

parties shall have thirteen (13) days from the

date of service to file written objections to

the foregoing report with the Clerk of the

Court. A copy of the objections shall be served

-48-

‘ me Se

Oe RH ae TN es

Feiteeetnetntinte i te

on the undersigned at P.O. Box 826, Paducah,

Kentucky 42002-0826. Failure of a party to file

timely objections shall constitute a waiver of

the right to appeal by that party. Thomas v.

Arn, 474 U.S. 140, 106 S.Ct. 466, 88 L.Ed.2d 435

(1985), reh. den. 474 U.S. 1111, 106 S.Ct. 899,

88 L.Ed.2d 933 (1986).

Date of Service: September 5, 1991

W. DAVID KING

United States Magistrate Judge

Copies to

Ms. Namkin

Ms. Ullerich

-49-

UNITED STATES DISTRICT COURT

WESTERN DISTRICT OF KENTUCKY

AT BOWLING GREEN

CLAUDE EARN CARTER

Plaintiff

Vv. No. 90-0197BG (M)

DEWEY SOWDERS, Warden

Defendant

RDER NT

This matter having been considered by U.S.

Magistrate Judge W. David King; it appearing

that the Magistrate Judge has filed his report

and that written objections have been filed to

the Magistrate Judge’s report; the Court having

considered de novo those portions of the

Magistrate Judge’s report to which objection is

made; the Court having determined that the

Magistrate Judge’s report should be accepted in

whole and the Findings of Fact and Conclusions

-50-

of Law should be fully incorporated by reference

herein; and the Court being sufficiently advised.

It is hereby ORDERED and ADJUDGED:

1. The petition for writ of habeas corpus

is DENIED.

2. This is a final and appealable Order and

there is no just cause for delay.

Date: October 31, 1991

RONALD E. MEREDITH

Judge, U.S. District Court

Copy to

Namkin

Ullerich

Judge King

«9%<

The deposition of CHARLES EDWARD ELAM, JR.,

taken pursuant to notice heretofore filed, in

the offices of Jesse L. Riley, Jr., Attorney at

Law, Kirkpatrick Building, Russellville, Logan

County, Kentucky, on Monday, June 30, 1986, at

approximately 10:15 A.M., and to be used in

accordance with the Kentucky Rules of Civil

Procedure

eek k£k&k KKK KKK

APPEARANCES

For the Plaintiff: Jesse L. Riley, Jr.

Kirkpatrick Building

Russellville, KY 42276

(502) 726-7554

For the Defendant: Louis M. Waller

P.O. Box 32

139 West Fourth Street

Russellville, KY 42276

Also Present: Benny Bowles and

Donna Riley

exe k€e&ek KKK EK

MR. RILEY: This is the deposition of

Charles Edward Elam, Jr., being taken pursuant

AZ «

to order of Logan Circuit Court entered on or

about April 2nd, 1986, which has been marked as

Plaintiff’s Exhibit 1 and pursuant to notice to

take depositions which has been marked

Plaintiff’s Exhibit Number 2; which notice shows

it was forwarded to attorney for Claud Carter

and attorney for the other defendant, namely Mr.

Louis Waller and Mr. T.A. Noe.

Mr. Waller, I understand that you like,

would like to make a statement at this time

since Mr. Carter is not present.

MR. WALLER: Yes, I would. I was apprised

of the possibility that this deposition would

take place on, or about June 20th. At that time

I had matters scheduled for District Court, and

I was advised by the Commonwealth Attorney that

the deposition would take place. I told him

that I would try to rearrange schedule in

District Court. Commonwealth Attorney at that

time was uncertain as to whether or not Mr. Elam

-53-

would be present. I told him I would try to be

present, and I have done that this morning by

restructuring my schedule in District Court.

But my problem is that I have been unable to

locate Mr. Carter. Now, shortly after receiving

notice from Mr. Riley that the deposition was to

take place and on June 20th, 1986, I addressed

the letter to Mr. Claud E. Carter, Route 1,

Oldstead, Kentucky. Mr. Carter has no telephone

to my knowledge.

The deposition for Charles E. Elam is

tentatively scheduled for Jesse Riley’s office

at 9:30 a.m., Monday, June 30, 1986. Jesse

seems uncertain that Elam will show, although he

has sent an airplane ticket to Colorado. I have

a District Court matter that same morning but

will plan to work around it. You may wish to be

present.

Now, I called or yesterday I had a

discussion with Mr. Carter’s sister. And her

-54-

name is Mrs. Parker. And when I talked to Mrs.

Parker she gave me a number where I might be

able to reach Mr. Carter. I told her that I was

anxious to reach with him to talk with her about

this matter. She gave me the number of one

Brenda Houchens, H-O-U-C-H-E-N-S. That number

is 726-7994. I tried that number several

times. I received no answer. I appeared this

morning prepared for the deposition but was

aware of the fact that Mr. Carter was not here.

And I have tried to reach Mr. Carter at that

number, 726-7994.

At Mr. Riley’s suggestion I interrupted the

line with the operator, advised the operator

that it was an emergency. The operator informed

me at about ten o’clock that the telephone was

out of order, which I assume could probably be

established whether it is or is not.

But I have served notice of withdrawl [sic]

from the case for the reason that I’m not able

-55-

to sit through the deposition and ask the

questions that need to be asked and have

information from Mr. Clark -- Carter that would

be essential for proper representation. I have

delivered that to Mr. Riley. So I do not plan

to attend the deposition. I have no reluctance

to attend. It’s simply that J cannot

effectively represent Mr. Carter’s interest

without him being present. And I don’t know

where he is, whether he had a truck breakdown or

some other problem that prevented him from being

present.

MR. RILEY: Mr. Waller, I understand that

you as Mr. Carter’s attorney and continue to be

his attorney until you are allowed to withdraw

are not going to stay for the deposition? Is

that correct?

MR. WALLER: Yes, sir. That’s correct.

MR. RILEY: I also believe that in your

letter to Mr. Carter you advised him that he

could attend if he wanted to.

ay

MR. WALLER: I said, "You may wish to be

present." My intention was that when he

received that letter that we would discuss the

matter further, but we have not been e540 0 do

so. No summons or other court process has been

issued to compell his attendance, and his

attendance is discretionary with him at this

point in time.

MR. RILEY: And you are not going to stay

while we take Mr. Elam’s deposition?

MR. WALLER: I don’t believe that it would

be fair to Mr. Carter to do that, because I

would not be able to effectively ask questions

and to interrogate the witness on cross

examination.

I previously asked that the witness be

present for trial, and we have a trial date in

September. And it would seem that if he could

be here for this television presentation that he

could also be present for the trial at nine

-57-

o'clock on September 25th. But I don’t know

whether or not he could attend that. But it

would seem that he could have as well have

attended the trial as the deposition.

MR. RILEY: At this time would the court

reporter please swear Mr. Elam?

MR. WALLER: Okay. Let the record show

that I’m departing for the reasons as I have

previously stated.

MR. RILEY: Better take your mike off,

Mr. Waller:

MR. WALLER: Okay. Thank you.

-58-