Opposition Brief — Sowders v. Carter

RECEIVED

Rg Bie se SIN THE

SUPREME ‘COURT OF THE UNITED STATES OFFICE OF THE CLERK

OCTOBER (ator EL ODS SUPREME COURT, U.S. 2

a

DEWEY SOWDERS, WARDEN, PETITIONER, >

V.

CLAUDE EARN CARTER, RESPONDENT. \ a

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

LARRY H. MARSHALL

ASSISTANT PUBLIC ADVOCATE ¥

100 FAIR OAKS LANE .)

SUITE 302 3

FRANKFORT, KENTUCKY 40601

(502) 564-8006 4

Counsel of Record

JULIE NAMKIN

ASSISTANT PUBLIC ADVOCATE

100 FAIR OAKS LANE

SUITE 302

FRANKFORT, KENTUCKY 40601

(502) 564-8006

Counsel for Respondent

QUESTION PRESENTED

WHERE THE ACCUSED IS FREE ON PRE-

TRIAL BOND AND ALL LOWER COURTS HAVE

AGREED HE DID NOT HAVE NOTICE OF A

PRE-TRIAL DEPOSITION OF THE

COMMONWEALTH'S KEY WITNESS, CAN THE

ACCUSED'S ABSENCE FROM SAID

DEPOSITION EQUAL WAIVER OF HIS

CONSTITUTIONAL RIGHT OF

CONFRONTATION?

TABLE OF CONTENTS

PAGE

ES PEER IES LODE EOE FP PR ae ETE T -i-

Se i i eehbbedueneeeveeasenea. -iii-

DS TRIS gt SN PRINT i ep NU a a 1

SS aa ae wees one 1

CONSTITUTIONAL PROVISIONS INVOLVED.........-eeeeeceeeeeees 2

STATUTORY PROVISIONS INVOLVED..........ccccccccccccccceees 2-3

COUNTERSTATEMENT OF THE CASE...........ccccccccccccccccees 3

REASONS FOR DENYING THE WRIT........cccccccccccccccccccces 9

I. THIS COURT LACKS JURISDICTION TO REVIEW THE

JUDGMENT OF THE UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT BECAUSE THE

COMMONWEALTH'S PETITION FOR WRIT OF

CERTIORARI FAILED TO COMPLY WITH THE

REQUIREMENTS OF SUPREME COURT RULE 14(1)(h)

ieee aeeeces 9

II. BY FAILING TO OBJECT TO THE MAGISTRATE JUDGE'S

REPORT FINDING THAT RESPONDENT DID NOT HAVE

NOTICE OF THE DEPOSITION, THE COMMONWEALTH OF

KENTUCKY HAS WAIVED ITS RIGHT TO CHALLENGE

THAT FINDING OF FACT BEFORE THIS COURT IN ITS

PETITION FOR WRIT OF CERTIORARI.........--eeeee- 13

ee ee ee ee ee cnces akes estes 18

APPENDIX

-ji-

TABLE OF AUTHORITIES

PAGE

CASES

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

SOT CIGED) cccccccccescecssevesecevesesceseccvere ese §&

Carter v. Sowders, 5 F.3d 975

CGEM CAF. B9OS) a ccccccecceseseseevesesesecsese oe 2, PASSIM

Cracker v. Procunier, 756 F.2d 1212

(SER CAG. T9ES) co cccccccccccvsccccccceescecess cose an

Crosby v. United States, 113 S.Ct.

FOS CAPPS cccccscccsevesccenccccescccecseceesees 13

Praylow v. Martin, 761 F.2d 179

SSE CAPs. EPSS) cece seveveccccscsccevecseseseeeceee 13

Thomas v. Arn, 474 U.S. 140,

106 S.Ct. 466, 88 L.Ed.2d 435 (1985)... ceeuee - 14, PASSIM

United States v. Schronce, 727 F.2d

DE CGE GEE a ASSO) hove eccaewcvcecvecccececesece 15-14

OTHER AUTHORITIES:

Sixth Amendment, United States Constitution........... 2

Fourteenth Amendment, United States Constitution...... 2

Be Wetec BOSC he ee acceeceseserevesecsoseeeseeansenbes 3, PASSIM

MO ee ee ee ere ee re 1

De WalleGe Bae eeecaevcocccceseseecensevses peceeesedéees 1, PASSIM

SuUPTOMS COUFE RULE U4 ccccccccesceccccccevecececssves 9, PASSIM

Federal Rule of Criminal Procedure 43.......... eseese tea

Rule 8 of the Rules Governing §2254 Cases........... 15

Kentucky Rule of Civil Procedure CR 76.04........... 13

-34i-

Ou Batt

ee

eK

NO. 93-1500

IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM, 1993

DEWEY SOWDERS, WARDEN, PETITIONER

Vv.

CLAUDE EARN CARTER, RESPONDENT.

PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS FOR THE SIXTH CIRCUIT

RESPONDENT'S BRIEF IN OPPOSITION

The respondent, Claude Earn Carter, respectfully requests that

this Court deny the petition for writ of certiorari seeking review

of the opinion of the United States Court of Appeals for the Sixth

Circuit in this case.

OPINION BELOW

The opinion of the United States Court of Appeals for the

Sixth Circuit is reported as Carter v. Sowders, Ky. 5 F.3d 975 (6th

Cir. 1993), and is attached as part of the respondent's appendix

(Appendix hereinafter A 1-8).

JURISDICTION

Respondent contests petitioner's assertion that this Court has

jurisdiction over petitioner's petition under 28 U.S.C. §2254(1),

and respondent further states that this Court lacks jurisdiction

over petitioner's petition under 28 U.S.C. §1254(1).

CONSTITUTIONAL PROVISIONS INVOLVED

The Sixth Amendment of the United States Constitution

provides:

In all criminal prosecutions, the

accused shall enjoy the right...to

be confronted with the witnesses

against him;...and to have the

Assistance of Counsel for his

defence.

The Fourteenth Amendment to the United States Constitution

provides:

-_No State shall...deprive any

person of life, liberty, or

property, without due process of

law[.]

STATUTORY PROVISIONS INVOLVED

28 U.S.C. §2254(d) provides:

In any proceeding instituted in a

Federal court by an application for

a writ of habeas corpus by a person

in custody pursuant to the judgment

of a State court, a determination

after a hearing on the merits of a

factual issue, made by a State court

cf competent jurisdiction in a

proceeding to which the applicant

for the writ and the State or an

officer or agent thereof were

parties, evidenced by a written

finding, written opinion, or other

reliable and adequate written

indicia, shall be presumed

correct,....

Se 2 @

And in an evidentiary hearing in the

proceeding in the Federal court,

when due proof of such factual

determination has been made, unless

the existence of one or more of the

circumstances respectively set forth

in paragraphs numbered (1) to (7),

2

inclusive, is shown by the

applicant, otherwise appears, or is

admitted by the respondent, or

unless the court concludes pursuant

to the provisions of paragraph

numbered (8) that the record in the

State court proceeding, considered

as a whole, does not fairly support

such factual determination, the

burden shall rest upon the applicant

to establish by convincing evidence

that the factual determination by

the State court was erroneous.

28 U.S.C. §636(b)(1) provides:

(B) a judge may also designate a

magistrate...to submit to a judge of

the court proposed findings of fact

and recommendations for the

disposition, by a judge of the

COUEC, « « OF applications for

posttrial relief made by individuals

convicted of criminal offenses and

of prisoner petitions challenging

conditions of confinement.

* * *

Within ten days after being served

with a copy, any party may serve and

file written objections to such

proposed findings and

recommendations as provided by rules

of court. A judge of the court

shall make a de novo determination

of those portions of the report or

specified proposed findings or

recommendations to which objection

is made. A judge of the court may

accept, reject, or modify, in whole

or in part, the findings or

recommendations made by the

magistrate. The judge may also

receive further evidence or recommit

the matter to the magistrate with

instructions.

COUNTERSTATEMENT OF THE CASE

On December 27, 1985, the Logan County, Kentucky, Grand Jury

=

is

indicted respondent, Claude Earn Carter, for unlawfully possessing

more than eight (8) ounces of marijuana on November 5, 1985, for

purposes of sale; selling more than eight (8) ounces of marijuana

on November 3, 1985; possessing and selling LSD on November 3,

1985; possessing drug paraphanalia; and being a first degree

persistent felony offender. (Transcript of Record, hereinafter TR

I (Indictment No. 85-CR-072) 1-2). Respondent was arraigned on

January 17, 1986, and trial was set for April 24, 1986. (TRI 4).

On March 4, 1986, the Commonwealth of Kentucky, petitioner

herein, moved to take a videotape deposition of Charles Elam, Jr.,

a paid police informant and the key witness against respondent.

(TR I B-9). No specific ground for taking the deposition was

given. (Id.). On March 17, 1986, the Commonwealth filed a second

motion to depose Elam. (TR I 12-13). Since Elam was a Tennessee

resident, it was necessary - according to the prosecutor - for the

Commonwealth to depose him now as it lacked the power to ensure his

attendance at respondent's trial in Kentucky on April 24, 1986.

(Id.). After a hearing on April 2, the Logan Circuit Court

sustained the prosecutor's motions to depose Elam. (TRI 13, 26).

On April 14, 1986, the prosecutor subpoenaed three (3)

Kentucky Police Officers to appear at respondent's April 24th

trial. (TR I 27-29). No subpoena was issued for Elam, nor were

any other efforts made to secure his attendance. On April 23,

1986, respondent's trial was continued until September 25, 1986.

(TR I 30). The next day, the prosecutor filed an ex parte

petition, pursuant to Tennessee's Uniform Non-Resident Witness Act,

ea pe oe <

- 4 a to Le ke 8 le Le ee See ee ee en ee ete Se ae a ee ae Pe Ee ee eee Sat a ee

to secure the attendance of Elam for purposes of deposing him on

May 15, 1986. (TR. Xt . 33-Fs) The trial court granted the

Commonwealth's petition the following day. (TR I 33-34).

No deposition was taken on May 15, 1986. 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 for a deposition on June 30, 1986. (TRI 35-

36). The trial court granted the Commonwealth's petition on the

same date. (TR I 37-38).

On June 5, 1986, the Commonwealth wrote respondent's attorney

notifying him that Elam's deposition would be taken on June 30,

1986 and stating the "deposition will be read at [respondent's]

trial” in September. (TR I 39). The deposition was held as

scheduled on June 30, 1986, in the Office of the Commonwealth's

Attorney. (Transcript of Deposition for Plaintiff, hereinafter TDP

2). Respondent's attorney appeared at the deposition, but

respondent did not. (TDP 3). Counsel stated he didn't receive the

notice of the deposition until June 20, 1986. Counsel wrote to

respondent on that date advising him "you may wish to be present”

at the deposition and made other efforts to contact respondent, all

to no avail. ‘TDP 3-5).

There is no evidence in the record that respondent ever

received this letter or any other notice of the deposition, or that

he was aware his counsel would not remain for the deposition if he

did not show up at the deposition. Since respondent testified at

trial, and the Commonwealth cross-examined respondent, the

Commonwealth had the opportunity to specifically question him on

this matter. However, the Commonwealth failed to avail itself of

this opportunity.

The trial court specifically found there was "no evidence that

[respondent] had notice that he was suppose [sic] to be there [at

the deposition]." (TE IV 346).

At trial the Commonwealth introduced, over respondent's

objection, Elam's uncross-examined deposition testimony taken in

the absence of respondent and his counsel. Based on this

deposition, which was the sole evidence of respondent's guilt, the

jury found respondent guilty of possession of marijuana over eight

ounces and trafficking in LSD and being a first degree persistent

felony offender. (TR II 51-56, 58-62).

Respondent appealed his convictions to the Kentucky Supreme

Court on the grounds that the introduction of Elam's deposition at

his trial violated his state and federal constitutional rights to

confrontation, counsel and presence. (TR II 90-94, 96). The

Commonwealth did not file a cross-appeal to challenge the trial

court's finding that respondent did not have notice of the

deposition. CR 76.04. On September 28, 1989, the Kentucky Supreme

Court affirmed respondent's substantive convictions but reversed

his first degree persistent felony offender conviction due to

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

597, 602 (1989). The Kentucky Supreme Court denied respondent's

petition for rehearing on February 8, 1990.

On May 8, 1990, respondent filed a petition for a writ of

EE

certiorari in this Court, raising the same federal constitutional

violations, which was denied on June 28, 1990.

On December 28, 1990, Respondent filed a petition for a writ

of habeas corpus in the federal district court pursuant to 28

U.S.C. §2254 alleging the aforementioned federal constitutional

violations. On September 3, 1991, the magistrate judge filed his

report recommending the petition for writ of habeas corpus be

denied. However, in his report, the magistrate judge presumed

correct, pursuant to 28 U.S.C. §2254(d), the Kentucky trial court's

finding that there was no evidence that respondent ever received

the letter of his attorney advising him of the deposition.

Petitioner's Appendix, hereinafter PA 46. Respondent filed

objections to the magistrate judge's report on September 19, 1991.

The Commonwealth did not file any objections to the magistrate

judge's report. More specifically, the Commonwealth did not object

to the magistrate judge's presumption of correctness as to the

Kentucky trial court's finding that there is no evidence in the

record that respondent received notice of the deposition. Id.

On November 1, 1991, the district court, stating it had

considered de novo those portions of the magistrate judge's report

to which respondent Carter had objected, accepted the magistrate

judge's report "in whole" and denied the petition for a writ of

habeas corpus.

After the district court denied respondent's Application for

a Certificate of Probable Cause, respondent filed a motion to alter

Or amend judgment which was also denied. Respondent then filed a

Motion for a Certificate of Probable Cause in the United States

Court of Appeals for the Sixth Circuit which was granted on April

15, 1992.

In a unanimous decision, the United States Court of Appeals

for the Sixth Circuit reversed the decision of the district court

and granted respondent's petition for a writ of habeas corpus. The

Sixth Circuit specifically held that "[b]Jecause [respondent] 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." Carter v. Sowders, 5 F.3d

975, 976, 982 (6th Cir. 1993); PA 2, 26. The Sixth Circuit

specifically stated that "[t]he [Kentucky] trial court found that

there was no evidence that [respondent] ever received the letter

from his attorney concerning the deposition, and that finding is

presumed correct. 28 U.S.C. §2254(d)." Id. at 981; PA 21.

Notwithstanding the findings of the Kentucky trial court, the

magistrate judge, the district court and the United States Court of

Appeals for the Sixth Circuit, the Commonwealth filed a petition

for rehearing based on the clearly erroneous assumption that

respondent received notice oi the deposition. In its December 16,

1993, Order denying the petition for rehearing, the Sixth Circuit

stated:

The entire thrust of the petition is

that [respondent] 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

8

confrontation. This one point is

repeated time and again for fifteen

pages. The problem with this

repeated point is that the record

demonstrates that it is simply

factually inaccurate, as our

previous opinion concludes, and as

the state trial judge flatly found

as a fact. Carter v. Sowders, supra

at 982; PA 28-29.

The Commonwealth's petition for writ of certiorari is likewise

based on the assumption, which is contrary to the record evidence,

that respondent received notice of the deposition.

REASONS FOR DENYING THE WRIT

Ee

THIS COURT LACKS JURISDICTION TO

REVIEW THE JUDGMENT OF THE UNITED

STATES COURT OF APPEALS FOR THE

SIXTH CIRCUIT BECAUSE THE

COMMONWEALTH'S PETITION FOR WRIT OF

CERTIORARI FAILED TO COMPLY WITH THE

REQUIREMENTS OF SUPREME COURT RULE

14(1)(h) and 14(5).

A. Failure to Comply with Supreme Court Rule 14(1)(h)

The Commonwealth's petition for writ of certiorari asks this

Court to review the judgment of the United States Court of Appeals

for the Sixth Circuit in the case of Carter v. Sowders, 5 F.3d 975

(6th Cir. 1993). This Court lacks jurisdiction to review this

judgment from the United States Court of Appeals for the Sixth

Circuit because the Commonwealth failed to comply with the

requirements of Supreme Court Rule 14(1)(h).

Under Supreme Court Rule 14(h), the party seeking review in

this Court of a judgment "shall" specify all stages of the

FORT Me cal Nee ee ee ee RR en atte <a ere nm har, tan ee ee FY ee en oe ee, ee Mn eee a) ee ee

proceedings at which the federal question it seeks to be reviewed

was raised, how it was raised, and how the courts below ruled upon

the question, including specific references to the record to show

"the federal question was timely and properly raised."

At no point in its statement of the case does the Commonwealth

specify when the federal question it asks this Court to review was

presented to either the Kentucky trial court, the Kentucky Supreme

Court, the federal district court for the Western District of

Kentucky, or the United States Court of Appeals for the Sixth

Circuit; nor does the Commonwealth state the "method or manner"

this question was raised or how this question was passed upon by

either the trial or appellate courts.

Accordingly, this Court lacks jurisdiction to review the

judgment of the United States Court of Appeals for the Sixth

Circuit because the Commonwealth failed to comply with Supreme

Court Rule 14(h).

B. Failure to Comply with Supreme Court Rule 14(5)

This Court lacks jurisdiction to review this judgment from the

United States Court of Appeals for the Sixth Circuit because the

Commonwealth failed to comply with the requirements of Supreme

Court Rule 14(5).

Under Supreme Court Rule 14(5), "“[t]he failure of a petitioner

to present with accuracy, brevity, and clearness whatever is

essential to a ready and adequate understanding of the points

requiring consideration will be a sufficient reason for denying the

petition.”

10

The Commonwealth's rendition of the facts in its "Question

Presented," Statement of the Case, and Reasons for Granting the

Writ is inaccurate because it omits the finding of fact by the

Kentucky trial court, that was presumed correct pursuant to 28

U.S.C. §2254(d) by the United States District Court for the Western

District of Kentucky and the United States Court of Appeals for the

Sixth Circuit, that respondent Carter did not have notice he was

required to appear at the deposition. PA 21, 45-46. As the United

States Court of Appeals for the Sixth Circuit states in its Order

denying petitioner's petition for rehearing:

The entire thrust of the petition is

that [respondent] had notice of the

deposition used in substitution for

live testimony at [respondent's]

criminal trial and that [respondent ]

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 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

[respondent] failed to show for the

deposition in this case. There is

no evidence that he had notice he

was supposed to be there.... Carter

v. Sowders, supra at 982; PA 28-29.

The Commonwealth's "Question Presented" assumes respondent had

notice of the deposition. But since all courts below have found

that respondent did not have notice of the deposition, this Court

need not decide how or whether or under what standard respondent

could make a knowing an intelligent waiver of something of which he

ll

had no knowledge.

In addition, the Commonwealth omits from its Statement of the

Case that the magistrate judge presumed correct the Kentucky trial

court's finding that there was no evidence in the record that

respondent had notice of the deposition. Petition for Writ of

Certiorari, hereinafter PC 9-10; PA 45-46. Likewise, the

Commonwealth omits from its Statement of the Case that the United

States Court of Appeals for the Sixth Circuit presumed correct the

trial court's finding "that there was no evidence that [respondent }

ever received the letter from his attorney concerning the

deposition." PC 10-11; PA 21.

Then, in the very first sentence of its Reasons for Granting

the Writ, the Commonwealth states: "The focus of this petition is

whether a criminal defendant who is free on pre-trial bond waives

the right to confrontation by not attending a deposition of which

he/she has notice." PC 11-12. The Commonwealth goes on to state

that "[a]fter being notified of a court-ordered deposition,

respondent neither contacted his attorney, nor appeared at the

deposition." PC 13-14. The Commonwealth continues its

misstatement of the facts when it states: “Having determined

respondent was aware of the scheduled deposition...." PC 22.

This Court must proceed to a decision on the basis of the

actual facts in the record of the case at bar. Once this Court

takes into consideration the actual facts of this case, the

Commonwealth's “Question Presented" becomes a hypothetical question

because it is not based on the fact situation in the instant case.

12

Even if this Court were to look at petitioner's hypothetical

question presented, said question has already been decided

adversely to petitioner in Crosby v. United States, 113 S.Ct. 748,

753 (1993), holding that Federal Rule of Criminal Procedure 43

"prohibits the trial in absentia of a defendant who is not present

at the beginning of trial." "[T]he defendant's initial presence

serves to assure that any waiver is indeed knowing." Ia., ii3

§.Ct. at 752.

Accordingly, this Court should deny the Commonwealth's

petition for writ of certiorari because the Commonwealth failed to

comply with Supreme Court Rule 14(5) by accurately presenting the

facts of this case to this Court.

II.

BY FAILING TO OBJECT TO - THE

MAGISTRATE JUDGE'S REPORT FINDING

THAT RESPONDENT DID NOT HAVE NOTICE

OF THE DEPOSITION, THE COMMONWEALTH

OF KENTUCKY HAS WAIVED ITS RIGHT TO

CHALLENGE THAT FINDING OF FACT

BEFORE THIS COURT IN ITS PETITION

FOR WRIT OF CERTIORARI.

The Kentucky trial judge found "[t]here's no evidence that

[respondent] failed to show for the deposition in this case.

There's no evidence that he had notice that he was suppose [sic] to

be there." (TE IV 346). The Commonwealth of Kentucky did not

challenge, in the Kentucky trial court or the Kentucky appellate

court, this finding of the trial judge. CR 76.04.

In his report, the magistrate judge stated "the trial court

found that there was no such evidence [that respondent had notice

of the deposition] and that finding is presumed correct. 28 U.S.C.

13

§2254(d)." PA 46. The Commonwealth of Kentucky did not file

objections with the district judge to this portion of the

magistrate judge's report.

28 U.S.C. §636(b)(1) states that any party may file written

objections to the magistrate's report within ten days after being

served with a copy of the report. A party may file objections if

it is aggrieved by any aspect of the magistrate judge's report. A

party need not be aggrieved by the magistrate judge's recommended

disposition to file objections. "Congress apparently assumed

...that any party who was dissatisfied for any reason with the :

magistrate judge's report would file objections and _ those

objections would trigger district court review." (emphasis added).

Thomas v. Arn, 474 U.S. 140, 106 S.Ct. 466, 473, 88 L.Ed.2d 435

(1985). To avoid waiver, a party must object specifically to

proposed magisterial findings. Praylow v. Martin, 761 F.2d 179,

180 n.1 (4th Cir. 1985). This waiver rule applies equally to the

Commonwealth (who received a favorable recommendation from the

magistrate judge) as well as the criminal defendant (who received

an unfavorable ruling from the magistrate judge). Id. Failure to

file specific objections constitutes a waiver of any further right

of appeal. Thomas v. Arn, supra, 106 S.Ct. at 471.

In the case at bar, the Recommendation of the Magistrate Judge

contained the following Notice: "Failure of a party to file timely

objections shall constitute a waiver of the right to appeal by that

party." PA 48-49. The magistrate's warning even cited Thomas v.

Arn, supra. Id. This language was mandatory and explicitly

14

alerted the Commonwealth to its procedural obligations. See United

States v. Schronce, 727 F.2d 91, 94 (4th Cir. 1984).

"The filing of objections to a magistrate's report enables the

district judge to focus attention on those issues - factual and

legal - that are at the heart of the parties dispute." Thomas v.

Arn, supra, 106 S.Ct. at 471. By failing to object to the

factfinding of the magistrate judge, which was then adopted "in

whole" by the district court, the Commonwealth waived its right to

have the district court make a "de novo determination" of that

aspect of the magistrate judge's report, i.e., whether respondent

received notice of the deposition. 28 U.S.C. § 636(b)(1); Rule

8(b)(4) of the Rules Governing §2254 cases.

In its unanimous opinion reversing the decision of the

district court and granting respondent's petition for writ of

habeas corpus, the United States Court of Appeals for the Sixth

Circuit stated that "[t]he trial court found that there was no

evidence that [respondent] ever received the letter from his

attorney concerning the deposition, and that finding is presumed

correct. 28 U.S.C. §2254(d)." Carter v. Sowders, supra at 981; PA

21.

Under 28 U.S.C. §2254(d) a state court's determination of a

factual issue shall be presumed to be correct. This presumption of

correctness applies equally to state factfindings favorable to the

state as well as the prisoner seeking relief. Craker v. Procunier,

756 F.2d 1212, 1213-1214 (5th Cir. 1985). The burden rests upon

the party challenging the state court factfinding "to establish by

15

convincing evidence that the factual determination by the State

court was erroneous." 28 U.S.C. §2254(d). In the case at bar, at

no time has the Commonwealth made any effort to establish with any

evidence, convincing or otherwise, that the finding of the Kentucky

trial court is erroneous.

Sesame ip se oar

The Commonwealth would have this Court believe that the burden

is on respondent to show that a ruling in respondent's favor is

correct. For example, in its petition for writ of certiorari, the

Commonwealth states that "[rJjespondent has never been required to

ST FEE OS, anaes AE

offer any explanation, compelling or otherwise, for his absence

[;----] At a@ minimum, the Sixth Circuit should have allotted the

burden to respondent to prove lack of notice as this was a habeas

corpus proceeding [;.... T]he most to which respondent was entitled

was a hearing’ in federal district court to give him yet another

opportunity to explain why he did not attend Elam's deposition and

why he failed to contact his attorney." PC 23-25. The

Commonwealth's statements ignore that respondent testified at trial

and thus the Commonwealth had every opportunity to question

respondent about whether he received notice of the deposition.

Instead, the Commonwealth, contrary to the facts in the record,

repeatedly asserts that respondent had notice of the deposition.

In its Order denying the Commonwealth's petition for

rehearing, the United States Court of Appeals for the Sixth Circuit

me Respondent asked for a hearing in his memorandum of

authorities in support of his petition for writ of habeas corpus,

but the Commonwealth, in its answer and response to respondent's

petition, moved to dismiss or in the alternative for summary

judgment.

16

stated:

The entire thrust of the petition is

that [respondent] had notice of the

deposition used in substitution for

live testimony at [respondent's]

criminal trial and that [respondent ]

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 record

demonstrates that it is simply

factually inaccurate, as our

previous opinion concludes, and as

the state trial judge flatly found

as a fact....Carter v. Sowders,

supra at 982; PA 28-29.

Just as in its petition for rehearing, the entire thrust of

the Commonwealth's petition for writ of certiorari is that

respondent "had notice of the deposition used in substitution for

live testimony at [his] criminal trial.” Id. Because the

Commonwealth never objected to the Kentucky trial court's finding

of fact that respondent did not have notice of the deposition, nor

to the magistrate judge's report presuming this historical fact to

be correct, the Commonwealth has waived its right to have this

Court review by writ of certiorari its "Question Presented" which

assumes, as a condition precedent, that respondent had notice of

the deposition.

Accordingly, since the Commonwealth has waived its right to

challenge the factfinding of the Kentucky trial court, this Court

must deny the Commonwealth's petition for writ of certiorari.

Thomas v. Arn, supra.

17

CONCLUSION

For the foregoing reasons, the petition for writ of certiorari

should be denied.

Respectfully submitted,

[ssn Ne WM arabe

LARRY H. MARSHALL

ASSISTANT PUBLIC ADVOCATE

100 FAIR OAKS LANE

SUITE 302

FRANKFORT, KENTUCKY 40601

(502) 564-8006

COUNSEL OF RECORD

arvvces Minn ('.

JULIE NAMKIN

ASSISTANT PUBLIC ADVOCATE

100 FAIR OAKS LANE

SUITE 302

FRANKFORT, KENTUCKY 40601

(502) 564-8006

COUNSEL FOR RESPONDENT

18

EDITOR'S NOTE

THE FOLLOWING PAGES WERE POOR HARD COPY

AT THE TIME OF FILMING. —_ IF AND WHEN A

BETTER COPY CAN BE OBTAINED, A NEW FICHE

WILL BE ISSUED.

at under ordinary cir-

woper for prosecutors

rt of a plea bargain or

harges As both the

O'Connor recognized’

suits filed by crimingj /

s. Rumery, 480 US? 3

3 (plurality opinion Ha

| 1195 (O'Connor, JI559

J in the judgment)’ *

®s in those circum? |

ortant public interest | >

cement officials from “3a

fens of defending # =

Il claims. Jd at 395- paz

4 (plurality opinion); 278%

1195 (O’Connor;J? 5

greements should be See

es where substantia] <-%

ents by law enforce: ai

94-95, 107 S.Ct"at Siam

n); id at 400;10%!

2

CARTER v. SOWDERS 975

Chte as 5 F.3d 975 (6th Cir. 1993)

The least well-defined element of a Rum-

, analysis is the consideration of whether

nforcement of the agreement will “adversely

affect the relevant public interests.” /d at

348, 107 S.Ct. at 1195. The majority justices

in Rumery suggested that this standard can

be satisfied if the prosecutor demonstrates

that obtaining the release was motivated by

an independent, legitimate criminal justice

bjective. Jd. at 398, 401-02, 107 S.Ct. at

1195, 1196-97. This does not appear to cre-

ate a particularly difficult hurdle for the

prosecutor to clenr. Indeed, the reason prof-

fered by the prosecutor for the release-dis-

missal agreement in this case—“to aid in the

disposition of its heavy case load”—would

probably suffice under ordinary circum-

stances. See id at 401, 107 S.Ct at 1196

O'Connor, J., concurring in part and in the

idgment) (citing “allocation of criminal jus-

e resources” as a “legitimate criminal jus-

tice” concern)

[5,6] Release-dismissal agreements also

can be legitimate criminal justice tools in

situations where police misconduct is alleged,

but the prosecutor is genuinely unable to

ascertain the truth surrounding the allega-

ton. As the Ninth Circuit noted in Lynch v

City of Alhambra, 880 F.2d 1122 (9th Cir.

1989), release-dismissal agreements can allow

prosecutors to “achieve a rough substantial

Justice where the ‘true’ facts of the case are

not known” by “allow{ing] everyone to de-

clare the case a draw and go home.” /d at

1127 n. 8 Examples of other legitimate

criminal justice objectives that come to mind

are situations where the cost of prosecution

would outweigh the benefit accruing to the

public from a conviction; where the strength

of evidence of criminal conduct is doubtful

even though charges were filed in good faith;

“here witnesses or evidence are no longer

‘vallable; where evidence is subsequently

discovered that points to the criminal case

defendant's innocence; or where criminal

charges are not the product of prosecutorial

misconduct and both sides benefit subs‘an-

ually from a balanced settlement in the sense

Oat both avoid exposure to potential liabili-

“es and expenses.

5

£4, Lynch, 880 F.2d at 1128

Rumery also requires a court reviewing a

release-dismissal agreement to weigh or bal

ance the interests on both sides of the issue

of enforceability. Rumery, 480 U.S. at 392,

107 S.Ct. at 1191; id at 399, 107 SCt. at

1195 (O'Connor, J., concurring in part and in

the judgment). Therefore, in a case where

there existed substantial evidence of police

misconduct, a court reviewing the release-

dismissal agreement could conclude that the

public’s interest in vindicating constitutional

rights and deterring police misconduct? by

permitting a specific civil complaint to go

forward, despite a release, outweighs a gen-

eral prosecutorial interest in helping to man-

age a heavy case load

For the foregoing reasons, the judgment of

the district court is reversed and this cause

is remanded for further proceedings consis-

tent with this opinion. The district court

should also reconsider plaintiffs motions to

amend his complaint should it conclude that

the release is not a bar to plaintiff's action.

Claude Earn CARTER, Petitioner-

Appellant,

Ve

Dewey SOWDERS, Warden, Northpoint

Training Center, Respondent-

Appellee.

No. 9)-6419.

United States Court of Appeals,

Sixth Circuit.

Argued April 23, 1993

Decided Sept. 27, 1993.

Order Denying Rehearing Dec. 16, 1993.

Federal habeas corpus petitioner's con-

viction for possession of marijuana and traf-

ar ee ee

me

SS. a

976 5 FEDERAL REPORTER, 3d SERIES

ficking in LSD was affirmed on direct appeal

by the Supreme Court of Kentucky, 782

S.W.2d 597. Defendant's petition for writ of

habeas corpus was denied by the United

States District Court for the Western Dis-

trict of Kentucky, Ronald E. Meredith, Chief

Judge. Appeal was taken. The Court of

Appeals, Merritt, Chief Judge, held that: (1)

admitting videotaped deposition of paid po-

lice informant violated petitioner's Sixth

Amendment rights; (2) unavailable witness

exception to hearsay rule did not apply; and

(3) petitioner did not waive right to confron-

tation by failing to attend deposition or by

counsel's appearance at beginning of deposi-

tion.

Reversed and petition granted.

1. Habeas Corpus 842

District court’s refusal to grant habeas

petition is reviewed de novo.

2. Habeas Corpus 846

District court’s factual determinations in

habeas corpus proceedings are reviewed un-

der clearly erroneous standard.

3. Habeas Corpus ©°765.1

Court of Appeals defers to state court

findings when reviewing decision in federal

habeas corpus proceedings if supported by

evidence. 28 U.S.C.A. § 2254.

4. Criminal Law 2662.30

Admitting video deposition of paid police

informant violated defendant's right to con-

front witness where deposition was taken in

absence of both defendant and counsel, and

deposition was only evidence supporting con-

viction. U.S.C.A. Const.Amend. 6.

5. Criminal Law 662.30

Confrontation clause precluded applica-

tion of unavailable witness exception to hear-

say rule to use of videotaped deposition of

paid police informant absent other adequate

indicia of reliability; informant was not

forced to confront defendant as deposition

was given and was not subjected to cross-

examination. Ky.Rules of Evid., Rule 804;

Fed.Rules Evid.Rules 804, 804(a)(5), 28

U.S.C.A.; U.S.C.A. Const.Amend. 6.

6. Criminal Law 662.80

Defendant did not waive right ty «

front paid police informant by failing a

tend informant’s videotaped deposition in wy

sence of evidence that defendant receiver

notice of deposition, was informed of conses

tutional right to attend, Urged to exerrigs

that right, or received notice of CONSEqENEEs

of failure to appear. U.S.C.A. Congt Amend

fi.

7. Attorney and Client <9]

Evidence that defendant consented ty

not attend videotaped deposition of Paid po»

lice informant was required to waive right to

confront informant, even if defense counsel

waived right by appearing and then depart.

ing. U.S.C.A. Const.Amend. 6.

Julie Namkin (argued and briefed), Dept.

of Public Advocacy, Frankfort, KY, for pet-

tioner-appellant.

Carol C. Ullerich, Asst. Atty. Gen. (argued

and briefed), Chris Gorman, Atty. Gen.,

Frankfort, KY, for respondent-appellee

Before: MERRITT, Chief Judge: and

KEITH and SUHRHEINRICH, Cireuit

Judges.

MERRITT, Chief Judge

Claude Earn Carter appeals the denial of

his petition for a writ of habeas corpus pur

suant 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.. 4

paid police informant. Elam’s video depos

tion was taken in the absence of both peti

tioner and his counsel, and the deposition

was later admitted, over petitioner's objec

tion, at trial. Because petitioner did no!

waive his constitutional rights under the

Confrontation Clause to confront his accuser

and subject his testimony to cross-examina

tion, the deposition did not bear adequate

indicia of reliability for admission at tra!

We therefore reverse the district court and

grant the petition.

SET ON PE ates

ae Elam then took

— ‘officers to

ap ym the trailer v

porch: sed ’ The trail

d Sent

ry, Grand Jury on De

Parag offenses and f

Mpersistent felony off

i January 17, 1986, :

April 24 of that year.

Hal the Commonwealth

Pa videotape depositic

PSpecif ‘ground. Ase

farch 17, this time alle

deposition was neces:

Moriwealth could not se

bf Elam, a Tennessee r

ond

trial in Kentucky. Th

not on. On April 14, the

bpoenaed three Kentucky }

r at Carter’s trial ten

ypoena was issued for EF

me efforts made to secure

pril: 23, Carter’s trial

April 24 to September

day, the Commonweal

He“petition, pursuant to T

m''Non—Resident Witness

nd

iP

Be attendance of Elam for

A

g him May 15, 198

iitéd the petition within

meno deposition on May Li

onwealth filed another

: fy this time pursuant to C

wm Non-Resident Witness

4 m’s presence in Kentucky

yne 30. The petition was gr

ve right to con

by failing to at- “2

deyx SIU0N in ab

fendant received

formed of consti:

rged to exercise ie

p of ¢ msequences

4 Const Amend

‘y

91 n

4 y

ut consented to

mon of paid po.

to waive right to #

7TSF

defense counsel]

and the , o

and then depart]

2 le

_

6

d briefed), Dept, 7

rt, KY, for peti- -

y o

ty Gen. ( “/ f

an, Atty. “Gels

partment, earning $150/week

r

rule

CARTER v. SOWDERS 977

Cite as 5 F Sd 975

harles Elam was a salarned narcotics

t with the Dyersburg Tennessee Police

According

um's deposition testimony, Elam and

Driskell purchased marijuana and LSD

petitioner at a house trailer in Ken

November 3, 1985, and returned to

SSe¢€ Elam then took a group of Teri

wlice officers t Kentucky and

vem the trailer where the drugs

The trailer was searched

warrant November 5, and Carter was

while working in the fields near the

r. He denied ownership of marijuana

e trauer r that he had ever met

: licted by the Logan Count,

rand Jur December 27, 1985

rug offenses and for being a first

ersistent felony offender. He was

January 17, 1986, and the trial was

r April 24 of that year. In preparation

trial. the Commonwealth moved March 4

take a videotape deposition of Elam, giv-

‘no specific ground. A second motion was

,

ed March 17, this time alleging that a pre

deposition was necessary, since the

mmonwealth could not secure the attend

f Elam, a Tennessee resident, at Car

trial in Kentucky. The court granted

On April 14, the Commonwealth

wenaed three Kentucky police officers to

ar at Carter's trial ten days later. No

poena was issued for Elam, nor were

ner efforts made to secure his attendance

23, Carter's trial was continued

April 24 to September 25, 1986. The

the Commonwealth filed an ex

petition, pursuant to Tennessee’s Uni

Resident Witness Act, to secure

attendance of Elam for the purpose of

sing him May 15, 1986. The court

led the petition within a day. There

deposition on May 15. Instead, the

nmonwealth filed another ex parte peti

thi

s time pursuant to Oklahoma's Uni-

Non-Resident Witness Act, to secure

presence in Kentucky to depose him

The petition was granted the same

(6th Cle. 1995)

On June 5, the prosecutor wrote Carter's

counsel, 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

Louis

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 evi-

dence 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

d=position at trial in lieu of live testimony

In preparation for the new September 25

trial date, the Commonwealth issued subpoe-

nas 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 deposi-

tion. The motion was not denied until trial,

almost four months later

On December 18, 1986, less than three

weeks prior to trial and more than five

months after Elam’s deposition, the prosecu-

tor 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

———

ee

Oe et

ewe eae are:

978 5 FEDERAL REPORTER, 3d SERIES

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 for-

warding 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 Okla-

homa lasting a total of sixteen minutes, in an

effort to locate Elam.'

The trial commenced January 6, 1987.

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 reiterat-

ed his objections to its admission. He ar

gued 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 Uni-

form Non-Resident Witness Act to procure

Elam’s attendance at his deposition, but had

not made a similar effort to obtain his pres-

ence at trial. The motion was overruled and

the deposition was read as the Common-

wealth’s first witness. One of the police

officers also testified concerning what Elam

had told him prior to taking them to Ken-

tucky to show them the trailer. The trial

court overruled petitioner’s objection to in

troduction 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 offend-

er. Carter appealed. The Kentucky Su-

preme Court upheld his substantive convic-

tions, 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,

110 S.Ct. 3282, 111 L.Ed.2d 791 (1990), Car

ter filed a petition for writ of habeas corpus

in the district court, which was denied No-

vember 1, 1991. Carter filed a Motion for

Certificate of Probable Cause in this Court

I The phone bill listing these calls appeared nm

the prosecutor's Motion to Supplement, filed one

51, 107 S.Ct. 989, 998, 94 L.Ed.2d 40

March 10, 1992, which we granted Apni I,

1992.

[1-3] Petitioner’s claims on appeal al

volve around Elam’s testimony Petitinnss

asserts that the prosecutor’s decision t,, .. -

tinue Elam’s deposition after the departun.

of petitioner’s attorney denied him his Sixth

Amendment right to counsel, and hi« riche

under the Fifth, Sixth and Fourteen:

Amendments to be present at all critics

stages of the proceeding against him. Pp,-,

tioner further contends that the failure of rh,.

trial court to suppress the deposition at trix!

violated his Sixth Amendment right to con

front his accuser, due both to the Commun

wealth’s lack of a good-faith effort to obtair

F:lam’s presence at trial and due to the inher

ent unreliability of a deposition not 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 factu-

al determinations are reviewed under the

clearly erroneous standard. McCall v. Dut

ton, 863 F.2d 454, 459 (6th Cir.1988), err

denied, 490 U.S. 1020, 109 S.Ct. 1744, 1H

L.Ed.2d 181 (1989). We defer to state

findings if supported by the evidence

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

1989), cert. denied, 495 U.S. 950, 110 d.Ct

2212, 109 L.Ed.2d 538 (1990)

The Sixth Amendment on its face guaran

tees a criminal defendant the right “to be

confronted with the witnesses against him

The Supreme Court has recognized that (n

language “comes to us on faded parchme!

with a lineage that traces back to

beginnings of Western culture.” Coy

lowa, 487 U.S. 1012, 1015, 108 S.Ct 27

2800, 101 L.Ed.2d 857 (1988). “The Cont

tation Clause provides two types of prote:

tion to the criminal defendant: the mgm

physically to face those who testify agains!

him, and the right to conduct cross-examine

tion.” Pennsylvania v. Ritchie, 480 U.S.

1s

i i

rhe

month after Carter's trial. The identities ©!

parties called were not given

paz, 380 U.S. 400, 404,

Hon Clause “forces

to cross-examination,

wine. ever invented fo

hi: California v. Gi

20 S.Ct. 1930, 198

pe. ootine 5 J. Y

aa ed. 1940)).

t this backdrop,

iedcuneel during Els

is close scrutiny.

stated in United §

a. 104 S.Ct. 208

)

T “counsel entirely f

osécution’s case to m

esting, then there h

xt! Amendment ngt

©

constitutional ¢

pwing of prejudice

ther totally absent, |

assisting the accused

stage of the proceedin

Id. at 659 & n. 25, 104 Si

un Green v. Arn, 309 F.

wecated on other grounds

mot 52, 98 L.Ed2d 17

BS F.2d 300 (6th Cir.198t

S5:1034, 109 S.Ct. 847

989), this court had the

my Cronic in a situation w

2 i absented himself fror

w Di e the prosecution was

Counse! for two other def

8 present, and condue

Ky.R.Evid. 804 states in

Hicarsay excephons declas

4 (a) Definition of unavaila

“tty as a witness” include:

the declarant

’ °

(5) Is absent from the he

nent of the statement hay

® granted April 15,

imony.

r’s decision to con. ~*

fler the departure

nied him his Sixth

sel, and his righi oa

and Fourteenth

2 3h

ent at all critical 4

wainst him. Petj _

it the failure of the 4

deposition at trial 4

nent right to. cont

1 to the Common.

th effort to obtain’ A

d due to the inher- 4 2

nomet

“

.

ohn OF Ore

CARTER v. SOWDERS 979

Cite as 5 F.3d 975 (6th Cir. 1993)

Both protections are crucial. “There is

something deep in human nature that re-

gards face-to-face confrontation between ac-

cused and accuser as ‘essential to a fair trial

in a criminal prosecution.’” Coy, 487 U.S. at

1017, 108 S.Ct. at 2801 (quoting Pointer v.

Texas, 380 U.S. 400, 404, 85 S.Ct. 1065, 1068,

13 L.Ed.2d 923 (1965)). Similarly, the Con-

frontation Clause “forces the witness to sub-

mit to cross-examination, the ‘greatest legal

engine ever invented for the discovery of

truth,” California v. Green, 399 US. 149,

158, 90 S.Ct. 1930, 1935, 26 L.Ed2d 489

1970) (quoting 5 J. Wigmore, Evidence

§ 1367, (3d ed. 1940)).

Against this backdrop, the absence of Car-

ter’s counsel during Elam’s deposition de-

mands close scrutiny. As the Supreme

Court stated in United States v. Cronic, 466

US. 648, 104 S.Ct. 2039, 80 L.Ed2d 657

1984)

(I}f counsel entirely fails to subject the

prosecution's case to meaningful adversari-

al 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, 104 S.Ct. at 2047 & n. 25.

In Green v. Arn, 809 F.2d 1257 (6th Cir.),

vacated on other grounds, 484 U.S. 806, 108

S.Ct. 52, 98 L.Ed.2d 17 (1987), reinstated,

839 F 2d 300 (6th Cir.1988), cert. denied, 488

US. 1034, 109 S.Ct. 847, 102 L.Ed.2d 979

(1989), this court had the opportunity to ap-

ply Cronic in a situation where defense coun-

sel absented himself from petitioner's trial

while the prosecution was presenting its case.

Counsel for two other defendants in the case

“as present, and conducted cross-examina-

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

Hearsay exceptions: declarant unavailable

(a) Definition of unavailability. “Unavailabili-

ty as a witness” includes situations in which

the declarant

(5 4 E

») Is absent from the hearing and the propo-

"ent of the statement has been unable to pro-

tion of the state's first witness. Neverthe-

less, 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.

[4,5] 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 pres-

ent to be cross-examined at trial, his infor-

mation concerning the November 3 transac-

tions came entirely from discussions with

Elam. He did not 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 tak-

en. The unmitigated absence of cross-exami-

nation at this time meant that Elam’s testi-

mony was never subjected to “the crucible of

meaningful adversarial testing,” Cronic, 466

U.S. at 656, 104 S.Ct. at 2045. 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, however similar the impact on the

defendant’s Confrontation Clause rights.

But our reasoning in Green supports our

conclusion here that Elam’s videctaped depo-

sition was hearsay, and was improperly ad-

mitted under the “unavailable witness” ex-

ception, Ky.R.Evid. 804 (Baldwin 1992).?

cure 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

7

;

i

Se ee

‘ES eRe s

980 5 FEDERAL REPORTER, 3d SERIES _ ay

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 Ohio v. Roberts,

448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597

(1980), the Supreme Court set forth the stan-

dard 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 guaran-

tees of trustworthiness.

Id. at 66, 100 S.Ct. at 2539. In Barber v.

Page, 390 U.S. 719, 724-25, 88 S.Ct. 1318,

1321-22, 20 L.Ed.2d 255 (1968), the Court

articulated the burden which must be met by

the Commonwealth to satisfy the “unavaila-

bility” prong of the foregoing test: “a wit-

ness is not ‘unavailable’ ... unless the prose-

cutorial authorities have made a good-faith

effort to obtain his presence at trial.” The

test for review of compliance with this stan-

dard defies precise explication: “The lengths

to which the prosecution must go to produce

a witness ... is a question of reasonable-

ness." Ohio v. Roberts, 448 U.S. at 74, 100

S.Ct. at 2543 (citing California v. Green, 399

U.S. at 189, n. 22, 90 S.Ct. at 1951, 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 depo-

sition, taken in violation of Carter’s rights

under the Confrontation Clause, could not

satisfy the “other adequate indicia of reliabil-

ity” standard imposed by the unavailable wit-

ness exception to the hearsay rule. Elam

was not forced to confront Carter as he gave

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

a

Z

his deposition. He was not cross-examined, sg

These circumstances could not provide the 7

trier of fact with “a satisfactory basis fot aa

evaluating the truth of the prior statement.” See

Dutton v. Evans, 400 US. 74, 89, 91° S.ces

210, 219, 27 L.Ed.2d 213 (1970). 0 et .

[6] The Commonwealth argues that thé 4 %

Ohio v. Roberts test is met in this = 2

because Elam’s deposition was admitted un: 4

der a “firmly rooted hearsay exception,” 43 Se

U.S. at 66, 100 S.Ct. at 2539, namely-Ky: a

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

vant part: rar O43;

At the trial or upon any hearing, 4 part!

all of a deposition, so far as 7

admissible under the rules of evidence; *4

may be used if it appears: _.. that the 7,

witness is out of the Commonwealth af #a

Kentucky, unless it appears that the ab: eZ %

sence of the witness was procured by thé) §

party offering the deposition; or ... that ghq

the party offering the deposition had be 2.

unable to procure the attendance .of thé

witness by subpoena. _ eae

4

(emphasis supplied). This argument is’ wit

out merit. As the emphasized portion 6f thé

preceding text shows, the rule governs pres

duction of evidence subject to the niles6l ;

evidence. Hearsay evidence from inavaily

able witnesses is governed by Ky.R. Evid)

804(b\(1), which includes the requirémél tg ;

that the party against whom the testimony Js Fame

now offered had a prior “opportunity “andiaaas

similar motive to develop the testimonysbyesaae

direct, cross, or redirect examination.’}<Bi .

this is the very opportunity that was den jek a

to Carter. The requirements of the exe Dariae 4

tion are not met. - ASRS

~~ ’

The Commonwealth contends that u ay

>

waived his Sixth Amendment rights througa)

oa

*s? <t 4

his failure to attend the deposition after a

attorney sent him written notice and tried WySag?

contact him several times by phone.’ It is 50 ts Ae

clear why this assertion, if true, would died

come the reliability problem with the depos Sars

tion. Furthermore, we disagree with ae,

.

a

in interest, had an opportunity and #

motive to develop the testimony by

cross, or redirect examination

one’s

stand

as en

455, ¢

(1938

quish

or pi

only

Boyd

75-4

court

Carts

torne

findis

§ 2

recei

tutio

to e

prese

rantl

any

appe

depo

to be

what

plied

dene

uon.

Unit

dires

shov

his 1

ther

akn

did }

Elar

(7

nom

ot cross ¢Xamined.

i not provide the

Sfactory basis for

prior statement.”

. 74, 89, 91 Soe

(1970).

} argues that the

met in this case

was admitted un-

ly exception,” 448

2539, namely Ky.

provides in reje.

hearing, a part or

far as otherwise

ules of evidence,

rs: ... that the

ommonwealth of

ars that the ab

procured by the

jon; or that

sition had been

tendance of the

CARTER v. SOWDERS 981

Cite as § F.3d 975 (6th Cir. 1993)

mes accuser is evaluated according to the

<tandards for waiving any constitutional right

is enunciated in Johnson v. Zerbst, 304 US.

iOS, 464, 5S S.Ct. 1019, 1023, 82 L.Ed. 1461

193s), and requires “an intentional relin-

quishment or abandonment of a known right

or privilege.” The right “may be waived

only by voluntary and knowing action.”

Dutton, 405 U.S. 1, 2-3, 92 S.Ct. 759,

7a-761, 30 L.Ed2d 755 (1972). The trial

yuurt found that there was no evidence that

Carter ever received the letter from his at-

rney concerning the deposition, and that

ling is presumed correct. 28 U.S.C

2254(d). Furthermore, the letter, even if

received, did not inform Carter of his consti-

tutional right to attend, nor did it urge him

exercise that night (“you may wish to be

resent”) (emphasis supplied). Most impor-

the letter did not provide Carter with

tice of the consequences if he failed to

that his attorney would leave the

ion and permit the state’s key witness

deposed without any cross-examination

hatsoever. Although a waiver may be im-

and not express, there must be evi-

jence in the record to support that implica-

tion his court’s statement in Evans v

ted States, 284 F.2d 393 (6th Cir.1960) is

irectly applicable: “the record does not

that defendant knew or was advised of

s rights. In order to constitute a waiver,

there must be a voluntary relinquishment of

a known right.” Id. at 395. We find Carter

i not personally waive his right to confront

I am

(*

(7) The district court found that Carter

netheless effected a waiver of this right

The Kentucky Supreme Court found that “Car-

$s right to confront Elam at the deposition was

because “[aJmple notice of the deposi-

was provided to Carter's counsel There

no evidence that Carter, personally, had a

2a reason why he was unable to attend, and no

proo! that his presence would have made a dif

Carter, 722 S.W.2d at 599. This obvi

ynflicts with our reading of Zerbst. More

the Kentucky Supreme Court made state

in an opinion decided the same day, Dean

ommonwealth, 777 S$W.2d 900 (Ky.1989),

' would lead to precisely the opposite result

™ that reached in Carter

7

(

old that because the right to be present

» coniront is personal to the accused

f Section 11 of the Kentucky Constitution

‘NG more particularly under [Ky.R.Crim.Proc J

through the actions of his attorney, who ap

peared 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, 89

S.Ct. 1018, 22 L.Ed.2d 219 (1969), 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 conclu-

sion 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 con-

erning 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 coun-

sel did not consult with defendant concern-

ing the waiver and did not obtain defen-

dant’s consent, the waiver will not be bind-

ing on defendant.

We similarly find that, even if Waller's ac-

tions at the deposition could constitute a

waiver of the defendant's rights under the

Confrontation Clause, the waiver would not

bind Carter in the absence of a showing that

he consented.’ As the Supreme Court stated

in Faretta v. California, 422 U.S. 806, 819, 95

S.Ct. 2525, 2533, 45 L.Ed.2d 562 (1975): “It

is the accused, not counsel, who must be

‘informed of the nature and cause of the

7.12, only the defendant can waive this right

The waiver must be sufficiently clear “as to

indicate a conscious intent.” Powell v. Com

monwealth, 346 SW Zd 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 indication

in the record that it was appellant's conscious

intent to waive this right and his consequent

right to cross-cxamination. Counsel's waiver

being ineffective, there was no waiver Ap

pellant 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 standa:d was used in dex iding Carters

fat

= tn lla ail ta

982 5 FEDERAL REPORTER, 3d SERIES

accusation,’ who must be ‘confronted with the

witnesses against him’.... The right to de-

fend is given directly to the accused; for it is

he who suffers the consequences if the de-

fense fails.”

We address finally the argument advanced

by the Commonwealth that our ruling today

will give every defendant’s lawyer the power

to obtain habeas relief for a client, merely by

neglecting to inform the client of opportuni-

ties 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:

(We are unwilling to assume that mem-

bers of the bar will cold-bloodedly adopt

{such a] bizarre and irresponsible strata-

gem.... If such a tactic develops, the

trial court must respond, but it is not

helpless before an attorney’s [tactics]

[Tyhe court’s contempt power or the disci-

plinary mechanism of the bar may be ap-

propriately invoked.

Id. at 1251-52.

ITI.

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 convic-

tion 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

ORDER

Dec. 16, 1993.

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 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 Kentuct

trial court, undisturbed by the state appeilen,

courts. Thus the only significant evidence a

Carter’s criminal trial was a deposition *

Carter’s chief accuser, a deposition Carter

had no notice of. Under the Confrontauan

Clause live testimony subject to CTOSS-examy,

nation is required in order to convict in such

a case.

Accordingly, the petition to rehear is pr

NIED.

FIRST AMERICAN NATIONAL

BANK, Plaintiff—Appellant,

v

FIDELITY & DEPOSIT COMPANY OF

MARYLAND, Defendant-Appellee.

No. 92-6163.

United States Court of Appeals,

Sixth Circuit.

Argued June 24, 1993

Decided Sept. 28, 1993

Declaratory judgment action Wis

brought to recover under employee fidelity

policies. The United States District Court

for the Western District of Tennessee, Oclel!

Horton, Chief Judge, granted judgment for

insurer. Appeal was taken. The Court «!

Appeals, Boyce F. Martin, Jr., Circuit Judge

held that takeover of insured bank and cover

age under employee fidelity policies term!

nated automatically before occurrence unc

exclusion clause, which terminated coveragt

immediately upon taking over of insured >)

another institution, when another bank as

sumed management control of insured bank

after purchasing 80% of insured bank's stoc’

at public foreclosure sale

Affirmed.

1. Contracts 176(1)

Federal Courts 776

Contract interpretation is a quesven

law and is subject to de novo review

P posit Co. of Mary

4 A Before: MART

F BATCHELDER,

13 we

|

& »-BOYCE F. MA

-? (In this diversi

First American ?

= declaratory judgm

COMMONWEALTH OF KENTUCKY

DEPARTMENT OF PUBLIC prt Se

100 Fair Oaks Lane

Suite 302

Frankfort, Kentucky 40601

<

ay

4

:

FICE. OF THE CLERK

April 14, 1994

4 ¢ couRT, U.S:

OF

SUPREM

Mr. William K. Suter

Clerk of the Court

Supreme Court of the United States

Office of the Clerk

Washington, D.C. 20543

RE: 93-1500

Sowders v. Carter

Dear Mr. Suter:

Enclosed please find the original and one copy of the Respondent's

Brief in Opposition to the Petitioner's Petition for Writ of

Certiorari in the above-styled case.

Very truly yours,

( ‘ / f

iw HO d C—- Prrn whut

Julie Namkin

Assistant Public Advocate

JN/byh

An Equal Opportunity Employer M/F/D

Primed on 4) recycied paper