*1 Petitioner-Appellant, VINCENT, Dean PARKE, Respondent-Appellee.
v. Al briefed), Rodney (argued McDaniel No. 90-5890. Frankfort, Ky., Advocacy, Dept, of Public petitioner-appellant. Appeals, for States Court Circuit.
Sixth (argued and Atty. Gillig, Asst. Gen. John Ken- briefed), Atty. Gen. of Office of the 19, 1991. Argued March Frankfort, respondent-ap- Ky., tucky, 23, 1991. Aug. Decided pellee. MARTIN, Circuit KEITH and
Before
CONTIE,
Judge.
Senior Circuit
Judges, and
MARTIN, Jr.,
Judge.
F.
Circuit
BOYCE
appeals the district court’s
Dean Vincent
petition for a writ
denying his
order
petition,
In his
Vin-
corpus.
habeas
habeas
for the
grounds
raised six different
cent
(1)
of his sixth
writ:
denial
issuance of the
wit-
right
confront adverse
amendment
impar-
to an
nesses; (2)
of his
denial
(3)
process by state
denial of
jury;
due
tial
testimony as to
opinion
police detective’s
(4)
process as
denial of due
guilt;
Vincent’s
misconduct;
prosecutorial
a result of
comments
by improper
fair trial
denial
(6) his convic-
judge;
protec-
the fifth amendment’s
violated
tion
respect
jeopardy. With
against double
tion
his sixth
argument that
first
Vincent’s
wit-
opposing
right to confront
amendment
violated,
court
district
nesses
a violation
was in fact
that there
found
wit-
opposing
right to confront
as established
nesses
States,
(1968),
the viola-
concluded
re-
district
harmless. The
tion was
grounds for ha-
remaining
jected Vincent’s
meritless.
finding
to be
them
relief
beas
reasons,
reverse.
foregoing
For the
co-defendants, Le-
and two
Dean Vincent
Johnson,
in-
Ronald
roy Kinser and
in Au-
Circuit Court
by the Butler
dicted
burglary,
degree
for first
gust
murder, and
capital
robbery,
burgla-
relating to the
conspiracy
criminal
County,
of Butler
robbery and death
ry,
During
resident,
Hayes.
Harold
had con-
Kinser
investigation,
police
*2
police
implicated
corpus pursuant
tion for writ of habeas
fessed
peti-
November
2254. Vincent’s
and Johnson. On
U.S.C.
habeas
§
hearing re-
suppression
initially
held a
tion was
referred to
state court
a United
suppress
motion to
his
garding
Magistrate
Kinser’s
who
States
recommended that
Kin-
taped
court denied
confession.
the writ be issued. The district court sub-
suppress the confession.
ser’s motion to
sequently rejected
magistrate’s
recom-
petition.
denied
mendation and
This
prevent Kinser’s confession
In order to
appeal ensued.
co-defendants,
his
unduly prejudicing
for a
tri-
prosecution
moved
bifurcated
Initially,
argues that his
sixth
proce-
al. The terms of the bifurcated
right of
amendment
confrontation was vio-
(1)
provided
prosecution
that:
dure
prosecution
lated when the
introduced testi-
case-in-chief, excluding
would introduce its
mony concerning two out-of-court state-
confession;
(2) the defendants
Kinser’s
by
Leroy
ments made
co-defendant
Kinser.
present
would then
their defenses with the
allegedly
by
The two statements
made Kin-
exception
any
rebuttal evidence Kinser
objects
by
ser that Vincent
to were offered
confession;
regarding
wished to offer
Louise Wilson and Detective Gaddie. Wil-
(3)
thereafter
jury
would
deliberate on
say
son testified that she overheard Kinser
innocence,
guilt,
or
of defendants Vin-
Johnson, “Well, why
to Vincent and
don’t
Johnson; (4) if
cent and
either Vincent or you
god-damn dogs,
kill them
too.” Detec-
guilty,
jury
Johnson were found
would
Gaddie, referring
tive
to his earlier conver-
concerning
then hear evidence
Vincent’s
sister,
Kinser,
sation with Kinser’s
Eva
re-
sentence; (5)
prosecu-
and/or Johnson’s
garding
participation
her
brother’s
tion would then introduce Kinser’s confes-
crimes,
charged
confirmed that Eva Kinser
sion; (6)
any
then introduce
Kinser would
“Leroy
had informed him that
told
[Kinser]
confession;
rebuttal evidence
that he was with Ronnie and Dean
[her]
(7)
jury
would then determine Kinser’s during the crime but he stood in the door-
guilt
innocence;
if Kinser was way and was too shocked to move because
guilty,
found
then
jury
deter- of what Ronnie
and Dean
[Johnson]
[Vin-
mine Kinser’s
All defendants
sentence.
ob-
doing Hayes[.]”
were
After the
cent]
jected
procedure
grounds
that it
statement,
admission of this
the trial court
provided
was not
by
for
admonished the
not to consider the
Rules of Criminal Procedure. The court
statement as evidence
defendants
granted the motion for bifurcation over the Vincent and Johnson.
objections.
defendants’
Kentucky Supreme
When the
Court re-
began
August
The defendants’ trial
on
viewed
Detective Gaddie’s
re-
12, 1985,
August 23,
and concluded on
garding Kinser’s statement to his sister on
evidence,
Following
close
appeal,
direct
it found that the statement
prosecution
moved to dismiss the
did not violate Vincent’s sixth amendment
charge
conspiracy
robbery.
to commit
rights
prosecution
because the
offered to
Thereafter, utilizing
proce-
the bifurcation
redact the names of Johnson and Vincent
dure,
found all three defendants
objected
and the defendants
to redaction of
guilty
degree robbery,
of first
the name of the codefendants and there-
burglary, and
Defendants
murder.
brought
fore
about the harm for which
twenty years imprisonment
sentenced to
Kinser,
they complain.
grant Vincent on Au- began jury trial The defendants’ Having found that time. able August 12, 1985, concluded on gust and ground that on the relief habeas to entitled conclu- at trial presented Evidence 1985. right to confrontation his sixth amendment used to tape sively established Vin- to address abridged, we decline was roll of from a come Hayes had restrain doing so remaining arguments, as cent’s (defendant Johnson tape duct Walter duplicative. father) in half cut had Johnson’s Ronald Dean petitioner-appellant, given and Judge, CONTIE, Senior Circuit fact, Vincent, day of the murder. dissenting. sam- that fiber revealed laboratory analysis reasons, respectfully following For the tape duct edges adhering to the ples dissent. tak- samples fiber Hayes matched found on Moreover, automobile. from Vincent’s en I. wit- numerous presented prosecution (Ken- County Butler Hayes, a Harold de- against the its case solidify nesses owner, killed in was grocery store tucky) re- Ray testified Judy Seabolt fendants: evening of June during the home his acquisition sudden the defendants’ garding found badly body Hayes’ beaten and behavior peculiar and their money, mouth, eyes, hands Hayes’ quilt. murder; under Hayes’ comments, night tape. duct gray bound legs the defen- testified that Danny Cornwell severely lacerated Hayes’ head participate him asked had earlier dants bruised; broken. nose was Wilson testi- robbery; Louise Hayes’ deter- Joe Gaddie Detective Police State her tell told had the defendants fied that forced had been Hayes’ door mined that night her they were with police that splintered), (the lock area open they though p.m., 9:00 murder from ransacked, the tele- (she had been house p.m. 11:00 past well until did arrive cut. had been cord phone say, Kinser also overheard god-damn kill “Well, you them why don’t Circuit the Butler August On (though her too”); Hodge Wood Lesa dogs indictment four-count Court returned she heard varied) testified statements Dean Vincent charging petitioner-appellant planning robbery, the defendants held duce concerning, out-of-court money after defendants the rob- statements by made Kinser and Johnson. bery, and washed defendant Johnson’s The out-of-court statements nontesti- following pants bloodied the robbery; fying eodefendant implicated peti- Kinser Johnny Sowders testified that he had in- tioner-appellant in charged crimes and Hayes formed defendants could be prejudicial were highly to petitioner-appel- night (he robbed because he lived alone lant.” Appellant’s Brief at 14-15. The further accompanied testified that he had two out-of-court allegedly Hayes’ and Johnson to grocery by co-defendant, Leroy Kinser, store days Hayes’ two before murder be- complains that Vincent about were offered appellant cause now”); wanted to “do it (overheard Louise say Wilson Kinser and Detective Gaddie testified that Leroy co-defendants, “Well, two why don’t standing Kinser admitted Hayes’ door- you kill god-damn them dogs too”) way watching as Johnson and Vincent beat Detective (referring Gaddie to his earlier Hayes. robbed None of the defen- discussion with Eva Kinser Le- dants testified. roy participation Kinser's Hayes’ After the trial court dismissed the crimi- crimes, the detective testified that “she conspiracy nal charge against the defen- stated that days several later she asked evidence, dants at close of again, him and he told her that he was with found defendants Johnson and Vincent defendants, other two Dean Vincent guilty degree of first robbery (twenty Johnson, and Ronnie were down years imprisonment), burglary there at Hayes’ Harold go house to down years (twenty imprisonment), and murder him, to rob but he doorway stood in the (life imprisonment). prosecution *6 then time, this while went in to do the presented taped defendant Kinser’s confes- robbing and whatever else was done through sion the of Detective there.”). Gaddie who read the transcribed statement. After noting “[bjoth that Kinser offered of the out-of- no evidence to rebut his jury confession. The statements made Kinser were in- found Kinser guilty culpatory of degree robbery first (twenty years petitioner-appellant,” as to Appel- im- prisonment), 19, lant’s burglary Brief at argues (twenty that the years imprisonment), (life and murder im- introduction of Kinser’s statements “violat- prisonment). ed petitioner-appellant’s rights under the Confrontation Clause of the Sixth Amend- Vincent’s convictions were subsequently ment,” id,., pursuant to the Supreme upheld by Kentucky Supreme the Court on Court’s decision in Bruton appeal. direct Kinser v. Commonwealth, States, 123, 20 741 (Ky.1987). 648 S.W.2d Vincent there- (1968). L.Ed.2d 476 response, In the appel- after filed his writ of corpus peti- habeas lee “[wjhile that maintains the defendants tion in the United States District Court for have attempted to many characterize of Western District of Kentucky. Though these out-of-court statements as United confes- Magistrate States recommended sions to which Bruton v. issued, United States writ be the district court apply, is clear judge rejected that Bruton does magistrate’s recommen- apply,” not Appellee’s dations Brief petition and denied the because June Kinser’s statements merely admis- against sions self-interest, see Fed.R.Evid. Vincent thereafter filed timely notice 804(b)(3), not confessions required by as appeal. Bruton. Appellee’s (“a Brief at 14 confession an acknowledgement of [is] II. criminal culpability by accused; an ad- A. against mission interest a statement [is] Initially, prose- that “the which does directly not involve an acknowl- cution to, allowed to refer edgement intro- guilt intent”). or criminal
995 confronted be “to criminal States, the Su- United v. Bruton him.” We against witnesses held: Court preme extended guarantee, that held have in which the contexts some are [T]here Fourteenth the States cannot, against not, or jury will risk to cross- Amendment, right includes and the great, is so instructions follow Where two witnesses.... examine so vital failure consequences jointly, there- tried human more defendants practical defendant, of one be confession fore, pretrial cannot system limitations is not others presented implicates a context them that Such ignored. incriminating unless others against the powerfully admissible here, where Fifth a codefend- waives confessing defendant statements extrajudicial cross- side-by-side permit as rights so accused ant, stands who Amendment be- deliberately spread defendant, are examination. trial.... joint jury fore 187-90, York, U.S. 481 v. New Cruz is intoler- such evidence unreliability of 162 1716-18, L.Ed.2d ac- alleged compounded ably omitted). (citations testify and here, not does complice, holdings in Court’s Supreme Though the by cross-examination. tested cannot only mention and Cruz confes fair trial to a threats such against It liberally more sions, Circuit’s Sixth direct- Clause Confrontation Bartle, holding in States worded ed. joint Cir.1987) (“[I]n a impossi- acknowledge course, We, of admitting B, andA of codefendants in fact determining whether bility A made party a third testimony from Evans’ state- ignore did did or him incriminating both certain in determin- inculpating ment sixth amend B’s B would violate self the intro- Here guilt_ petitioner's ing A testi unless right of confrontation a sub- posed confession of Evans’ duction cross-examination.”), B’s subject to becoming fied, thereby petitioner’s threat stantial denied, t. him, and cer the witnesses confront (1988), ex- De- 108 S.Ct. ignore. cannot hazard is a *7 circuit. in this impact to Bruton’s tends instructions eoncededly clear the spite inadmissible disregard Evans’ jury the Bru- of applicability Notwithstanding the petitioner, inculpating hearsay evidence the regarding any error ton, I that find cannot we trial joint aof context the in statements two Kinser’s of admission an ade- as instructions limiting accept proper- the as district error harmless constitu- petitioner’s for substitute quate States, v. United Brown concluded. ly The cross-examination. right tional U.S. no had been if there the same is effect reject the notion (“We all. at instruction harm- can never error a Bruton that at 135- States, 391 v. United Bruton less.”). omitted). (citations 1627-29 ap- review noting the standard After summa- Supreme Court recently, the More dis- analysis, the error harmless plicable holding: its Bruton rized rea- length, his noted, at trict court States, held that the regarding any error finding sons rights un- his deprived is a defendant harmless: of Kinser’s admission Clause Confrontation the der the evidence is from the incriminating confession Aside codefendant’s intro- evidence trial, complains, if the even petitioner joint at their introduced the establishing that confes- that the to consider duced is jury instructed codefendants with seen the against petitioner codefendant. only sion petitioner’s in Johnson and Kinser the day of earlier Dodge Maroon Sixth Clause Confrontation co- the with petitioner murder; the that right of a the guarantees Amendment purchased liquor illegal jury defendants on to make reasonable inferences parked two occasions and the maroon from the evidence as a whole order in Dodge in the front of the house while determine whether each of the defen- making purchase; petitioner that the guilty dants charges is of each of the got the codefendants and drunk at against them in the indictment.... Wilson’s house and Louise talked rob- found, facts prove, jury and the so that bing Hayes; petitioner that talked planned three defendants to rob robbing Hayes in about front of Sowders Hayes, they that grey tape obtained duct night that Sowders saw stick under victim, to bind the that they obtained car; petitioner’s driver’s seat of victim, from the money they and that days petition- before the two murder following hurried the crime. There robbery er stated he would commit suggest is no evidence to anyone immediately in fact drove with Sow- else robbery, burglary, committed the grocery ders to the store did conspiracy and the beyond murder. It is robbery; petitioner commit the that the peradventure con- gray tape obtained a roll of duct clude from proven these facts that the Johnson, put Walter cut it in half and three defendants Hayes killed Mr. in the car; in gray tape that the roll duct process of committing the other crimes. pot-bellied found in the stove at the vic- Common logic sense and would lead a tims’ house matched the tape roll of person reasonable to believe that absent Johnson; which remained with Walter evidence present that someone else was tape that both rolls matched the defendants committed the murder or tape which was used the assailants to aided and abetted one another in the feet, mouth; the victim’s hands and commission of the Considering murder. tape fibers found on the victim the overwhelming petitioner’s matched fibers found in the petitioner Dodge; petitioner maroon that the facts, draw proven inferences from bootleg- codefendants arrived court concludes that the error in admit- ger’s house around 11:00 p.m. or 11:30 ting the statement of Eva Kinser without p.m., parked Dodge the maroon beyond redaction harmless a reason- back, place parks that no one any able doubt. regularity except occupants; that the District Court’s June 1990 Memoran- Buddy said that All- Sheriff dum Order at 5-7. just went ford down the and that if road prosecution presented Because over- going codefendants were him whelming evidence of partic- had get quickly; better ipation crimes, any error petitioner and the codefendants were *8 the admission of Kinser’s two out-of-court hurry noticeable and that left the certainly statements was harmless as the bootleggers in a hurry; that noticeable district court properly concluded. Accord- the paid codefendants off their debts to ingly, I would petitioner-appel- the bootlegger purchased
the liquor and with lant’s assignment first of error. pawn roll of dimes had to items earlier in day purchase liquor; the to B. the that and the codefendants arrived at Louise Wilson’s house at argues Vincent judge’s next that the trial p.m. 11:00 p.m., around or 11:30 that they comment regarding Hodge’s Lesa testimo- were in a hurry, parked the ny irreparably vehicle tainted his trial. The rear bag and asked for a in put judge’s which to comment was made as defendant money change; and and the Rueff, that victim attorney, Mr. Johnson’s cross-exam- p.m. died around 11:00 to the Hodge regarding addition ined her inconsistent evidence, above-mentioned evidence was concerning statements the Hodge crimes: introduced each of the police other first told nothing that she knew of province defendants. It is within involvement; the of the defendants’ she later told
997 (11th 1376, 1382 Butera, 677 v. in- States defendants the that police 1108, denied, 103 Cir.1982), cert. John- later, defendant told volved; she still (1983). Accord 735, 958 74 L.Ed.2d were S.Ct. defendants attorney that son’s correctly con judge court however, Hodge ingly, tes- the district trial, involved; at not judge’s were, indeed, re- trial court state that cluded the defendants that tified proper “the merely represented crimes. statement for the sponsible control the to power of the Court’s exercise testimo- incriminating Hodge’s Following unnecessary avoid and trial pace examination, John- defendant direct ny on 13, June Court’s District examination.” credibility Hodge’s attorney attacked son’s 10. at Order Memorandum Hodge’s in- noting on cross-examination Hodge ex- petitioner- After reject the statements. I therefore consistent would be- existed discrepancies error. assignment plained second appellant’s were not exculpatory cause her in exchange occurred C. following true, presence: jury’s his conviction argues that next Vincent this, Mr. has relevancy What COURT: prosecutor because be reversed must Rueff? con prejudicial “improper engaged a dif- me given Judge, has she conjunction RUEFF: viewed duct, when especially answer, to today, statement ferent committed errors serious the other took she said gave me—she trial, she what during petitioner-appellant’s [which] office. police Danny Cornwell process of due petitioner-appellant deprived States United law violation at 36-37. relevancy of Brief Appellant’s see Constitution.” don’t COURT: however, settled, state- that a entire has admitted It is She well that. trial unless not true. So a new probably gave is entitled is not she pronounced is “so is relevant. something that misconduct stay prosecutorial the entire permeated that it persistent Memo- June Court’s District v. United States trial.” atmosphere of the 10; Magistrate’s Feb- and Order randum Cir.) (6th (quoting Vance, 871 F.2d Recommendation Report ruary Mahar, 801 F.2d States 28; Appellee’s Brief 22; Appellant’s — denied, Cir.1986)), cert. Brief at (1989). -, “the trial Though Vincent instances two cites Specifically, comment prejudicial amade court Appellant’s misconduct. jury,” alleged prosecutorial in front during occurred “obvious- alleged comment misconduct because Brief at prosecutor when conclude opening lead the ly could said prove she Lesa that he court believed stated co-defen- three exonerating the defendants Lesa Wood statement told Supreme “get Hayes’ throat true,” id. at would slit dants deter- prosecutor “the the district Because Court over with.” evi- comment judge’s his statement support mined failed witness stand,” Appellant’s what the “simply a recitation witness from the dence *9 high- a characterization “it is that and was said had Brief at Court’s credibility.” District refer- make prosecutor the witness’ improper for ly and Order opening Memorandum in an damaging June evidence ence support with he fails which statement stand,” id., add- witness the evidence a mere is not judge “trial Because about the no doubt can be ing that “[t]here responsible observer, is or moderator unsubstantiated of the nature prejudicial proceedings, tempo of tone and for the in his prosecutor made comment evidence may comment judge] [a Petitioner-appellant statement. opening to curtail his discretion exercise may prosecu- murder charged matters.” irrelevant pursuit tor’s unsubstantiated statement indicated tute error of constitutional dimension. petitioner-appellant that intended to mur- single This was a momentary incident der the victim.” Id. within the day course of a ten trial. The prejudice petitioner, caused to any, if court, however, The district found no very speculative in light of ambigu- prosecutorial misconduct: ous prosecutor’s nature comment Kentucky Supreme The Court reviewed gesture. The action of the prosecu- prosecutor the comment of the and noted not, therefore, tor does justify issuance that comment was offered based on of the writ. report of Detective Gaddie and the Magistrate’s February 1990 Report and good faith prosecutor belief of the that Recommendation at 19-20. testify Lesa Wood would to the state- ment as made. The Kentucky Supreme Because the judge district court correctly Court found no error when it considered any prosecutorial concluded that miscon- statement was followed ten duct in the petitioner-appellant’s state court days of trial in overwhelming evi- “permeate[] did not the entire atmo- dence was introduced the defen- sphere trial,” United States v. upon dants. This Court review of Thomas, Cir.1984), record likewise finds no error.... and deny trial, Vincent a fair Greer bar, the case at was instructed Miller, that the comments of counsel were not to (1987), L.Ed.2d 618 the district judge Furthermore, be considered as evidence. properly petitioner’s prosecutori- denied the the statement was founded good on a al misconduct claim. I would therefore faith belief that the evidence would be assignment Vincent’s third of error. introduced at the trial. No other refer- ences the statement were D. during the remainder Lastly, of the trial. During prosecution’s presentation of guilt against evidence of petitioner case, its Detective Gaddie testified that he was overwhelming as great- discussed in had up “come with good pieces several real er detail above. Therefore the Court of evidence that connected the defendants finds no error in the statement. during to the crime” his investigation. The District Court’s June 1990 Memoran- judge trial court immediately admonished dum and Order at 8-9. to “consider that merely as an opinion Detective,” or conclusion of the The alleged prosecutorial second miscon- adding “you will be the sole prosecutor duct occurred when the re- any whether or not of this evidence marked, con- trial, during “if going nects the defendants any of them to the to play tapes witnesses, the Common- crime.” wealth get would like to in the act.” The district court found this claim to be merit- Detective Gaddie later noted that: “At and, silentio, less sub magis- affirmed point in time the three defendants trate’s decision: suspects in the case. enough knew petitioner argues improp- it was about the case to think that possibly er for prosecutor to offer what he had committed this murder.” The trial
knew was inadmissible
front
court judge immediately offered a second
of the jury
doing
deprived
so
strong admonition to
jury:
process
him of due
of law.
gentlemen
Ladies and
Jury, you
correctly
cites
disregard
will
and not consider the state-
case law reversing a
conviction which
ment of Detective Gaddie as
opin-
to his
similar conduct
is,
occurred. This court
ion as to who committed this crime. You
however, concerned not
will,
with errors of
course,
listen to all the evidence
*10
state law but with errors which offend
you
and
will make the determination as
the mandate of the United
who,
States Consti-
if anyone, committed this crime
tution. The conduct here does not
you
consti-
disregard
and
will
opinions
of
E.
Gaddie,
I
admonish
and will
Detective
in his future
the witness
argues
convic-
Though
that his
Vincent
ulti-
opinion about those
give
not to
his
murder,
degree burglary,
for
tions
to what
it more
confine
facts. Just
mate
robbery unconstitutionally
and first
investigation,
his
of
did in the course
he
Supreme
jeopardy,
in
placed him double
giving opinions
conclu-
than
rather
was barred
Kentucky held that it
Court
sions.
considering
petitioner’s
claim:
constitu-
Finally,
Report
February
Magistrate’s
jeopardy
guarantee
tional
double
16; Appellee’s
and Recommendation
he
convicted of
was violated
Brief at 33.
first-degree rob-
first-degree burglary,
relies
Though
petitioner-appellant
bery
murder. Vincent concedes
Sowders,
F.2d
heavily
Cooper
preserved
review
is not
for
this issue
Cir.1988)
(6th
(police officer’s
286-87
jeopar-
of course a
objection, but
double
had a direct influence
“opinion-testimony
despite the
dy
can be reviewed
violation
petitioner’s
jury’s consideration
preservation.
lack of
deprived
innocence” and
guilt or
However,
lacks all
Vincent’s contention
fairness”), the
“right to fundamental
of his
the three crimes
submits that
merit. He
(and
court
the district
magistrate concluded
convicted were
which he was
silentio)
that:
agreed,
judge
sub
jeopardy purposes.
for double
“same”
likewise
case at bar
detective
The
in
assertion, first-degree
Contrary to that
guilt of the
jury the
suggested to the
robbery and mur-
burglary, first-degree
however,
Here,
trial
petitioner.
separate
offenses.
der
three
consid-
jury not to
admonished the
court
rhetori-
hypertechnical
in
engages
a
petition-
opinion as to
the detective’s
er
an issue
in order to create
cal discussion
innocence. Such admonition
guilt or
er’s
totally ignores the obvi-
doing
in
so
the comment
strong
in
contrast
an
murder is not
statutory fact that
ous
Cooper
in
by the court
incident to the commission
included
may well have
clearly impermissible and
robbery. He bases
burglary or
either
opinion
the detective’s
reinforced
wording of the instruc-
argument on the
jury’s minds.
However, according to
jury.
to the
tions
Cooper
also held that
The court
record,
it was
reading
a clear
allowing
a third time
court
trial
erred
in-
who
counsel
submitted
Vincent’s
at tri-
of other evidence
the introduction
He can-
given
court.
struction
that, when
The court
considered
al.
held
complain.
be heard to
not now
produced
the three errors
cumulatively,
Commonwealth,
741 S.W.2d
Kinser v.
fundamentally
setting
trial
added).
magistrate
The
(emphasis
argument
unfair. Petitioner’s
silentio)
court
{sub
the district
writ
holding in
mandates
Cooper
agreed:
is, therefore, misplaced.
as to
issue
him
is that
final
petitioner’s
The
Report and
February
murder,
Magistrate’s
for the offenses
his conviction
omitted)
(citation
at 18
first-degree
Recommendation
burglary, and
first-degree
(emphasis
original).
jeopardy
him in double
robbery placed
by the United
proscribed
as
life or limb
(in
remarks
Gaddie’s
Because Detective
States Constitution.
judge’s
court
immediate
light of the trial
not render
jury) did
admonitions
precludes
procedural
court
bar
fundamentally
state
unfair
Vincent’s
“so
absent
of this
review
issue
rights,”
this court’s
federal
a denial of
to constitute
Pe-
“prejudice.”
showing of “cause”
Marshall,
Logan v.
showing.
made such
(citation
has not
curiam)
omit-
titioner
Cir.1982)
(per
therefore,
not,
consider
may
assign-
ted),
fourth
allegation.
merit of
error.
ment of
*11
February
Report
carefully
and We have
scrutinized the record
Magistrate’s
(citation omitted).
at 24
in this case and find that the defendant’s
Recommendation
prejudiced by
cause was not
the manner
findings
pre
court’s factual
A state
in which the trial was conducted.
correct, absent evidence to the
sumed to be
Brown,
first,
whose case was tried
corpus action.
contrary, in a habeas
guilty. Consequently
found not
dowe
2254(d).
assume,
may
there
We
U.S.C. §
jury
believe
drew an adverse
fore,
attorney did
that Vincent’s
indeed
inference from Brown’s association with
jury
instructions that Vincent
submit
developed
at trial. More-
complains
now
of. Because Vincent has
over,
find
the record contains
“preju
failed to demonstrate “cause” and
convincing
support
jury’s
evidence to
dice,”
Jago,
see Melchior v.
723 F.2d
guilty verdict as to defendant.
(6th Cir.1983)(“[fjailure
comply
to
may
procedural
Despite
state
rules
bar federal ha-
prejudice
the lack of
to defen-
underlying
arising
technique
beas review of
federal
dant
the trial
em-
claim,
showing
here,
ployed
of ‘cause’ for the
absent
we entertain serious doubts
‘prejudice’ resulting
failure and actual
propriety
general
about the
use
violation”),
alleged
from the
constitutional
preserv-
a bifurcated trial as a
means
denied,
ing joint
complying
cert.
U.S.
trials while still
(1984),
F.
jury
er
give
the same
could later
dispassionate
codefendant
and un-
Arguing
pro-
bifurcated trial
“[t]he
prejudiced hearing required by
pro-
due
deprived peti-
in this
cedure utilized
case
by
cess and
the sixth amendment.
tioner-appellant
right
of his constitutional
prejudice
such a case the risk of
jury,”
impartial
Appellant’s
to a fair and
unacceptably high.
be
And of course the
Brief at
that:
judge
predict
begin-
cannot
at the
impossible
preju-
measure
[i]t
ning
jury’s
of the trial what the
verdict
petitioner-appellant by
dice caused to
will be as to the defendant whose case is
procedure in
bifurcated
which evidence
presented. Conceivably,
proce-
allegedly
withheld as to Kinser
may
dure
discovered
will make
questions
when the
decided the
possible a reconciliation of the efficient
petitioner-appellant’s guilt or innocence
use of court time and the constitutional
penalty.
jury certainly
could
guarantee
to confrontation.
speculated
have
the withheld evi-
meantime,
In the
whenever there is a
damaging
petition-
dence was evidence
possibility
prejudice
to either defen-
er-appellant
and Johnson. The
after
dant, the safest
appear
course would
already
all had
heard evidence that the
be the traditional use of the severance
nontestifying Kinser had made a state-
device.
putting
petitioner-
the blame on
appellant
hap-
and Johnson for what
Id. at 1388.
pened
Hayes,
to Mr.
and had seen the
Supreme
Court of
dis-
prosecutor
up
say
hold
his briefcase and
very
missed this claim with
little discus-
get in
playing
he wanted to
on the act of
proceeding
sion: “The bifurcated
used
tapes of witness’ statements.
prejudice
the trial court did not
or violate
Id. at 49-50.
any
rights
any
substantial
of the defen-
heavily upon
relies
special
dants.
It was within the
reasons
holding
Sixth Circuit's
and discretion of the trial
States
as contem-
Crane,
(6th Cir.),
plated by
general caveat either prejudice possibility is a
there appear
defendant, course the safest severance use of the traditional
to be procedure applicable. device’ does not tried petitioner was unconstitu- It was not caveat.
affront petitioner.” prejudicial
tionally Report and February
Magistrate’s The district at 15.
Recommendation conclusion magistrate’s accepted the constitu- Though Vincent’s
sub silentio. abridged in viola- nearly rights
tional prove Crane, has failed
tion of fact, Kinser would
prejudice. strongest
appear to have deliberated respect because finding his two after guilt or innocence charged. guilty of the crimes
co-defendants reached verdict
Because confes- of Kinser’s
without substance correctly
sion, appellee and because indication no “offers
argues that Vincent prejudiced any way he 36, I would Brief Appellee’s
procedure,” assignment of error. final
reject Vincent’s
III. reasons, I re-
For the aforementioned
spectfully dissent. America, STATES
UNITED
Plaintiff-Appellee, (90-5664), BLAKENEY Kenneth
Roy C. (90-5665), E. Kutnyak and James
A. (90-6041), Defendants-Appellants.
Box 90-5664, 90-6041. 90-5665 and
Nos. Appeals, Court of
United States
Sixth Circuit. 6,May 1991.
Argued Aug.
Decided