# Appendix — Sowders v. Carter

> Briefs, arguments, decisions, and more.

URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1289%3A2

## Record

- **Collection:** Supreme Court brief
- **Document type:** Appendix
- **Published:** January 1, 1994
- **Citation:** 511 U.S. 1097

## Text

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-

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386005_1289%3A2. Public record. Not legal advice.