Edward Gilliam v. Betty Mitchell, Warden

179 F.3d 990, 52 Fed. R. Serv. 631, 1999 U.S. App. LEXIS 11821, 1999 WL 371273
CourtCourt of Appeals for the Sixth Circuit
DecidedJune 9, 1999
Docket97-3426
StatusPublished
Cited by67 cases

This text of 179 F.3d 990 (Edward Gilliam v. Betty Mitchell, Warden) is published on Counsel Stack Legal Research, covering Court of Appeals for the Sixth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Edward Gilliam v. Betty Mitchell, Warden, 179 F.3d 990, 52 Fed. R. Serv. 631, 1999 U.S. App. LEXIS 11821, 1999 WL 371273 (6th Cir. 1999).

Opinions

ALAN E. NORRIS, J., delivered the opinion of the court, in which MERRITT, J., joined. GILMAN, J. (pp. 995-96), delivered a separate concurring opinion.

OPINION

ALAN E. NORRIS, Circuit Judge.

Ohio prisoner Edward Gilliam appeals from the denial of his petition for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254. In 1991, petitioner was convicted following a bench trial for his part in the armed robbery of a drive-through store located in Elyria, Ohio.

On appeal he contends that the trial court violated his Sixth Amendment right to confront the witnesses against him by admitting the statement of a non-testifying co-defendant. Assuming that we find a Confrontation Clause violation and engage in harmless error analysis, he then asks us to apply the standard articulated in Chapman v. California, 386 U.S. 18, 87 S.Ct. 824, 17 L.Ed.2d 705 (1967) (error must be harmless beyond a reasonable doubt) rather than the standard more recently set out in Brecht v. Abrahamson, 507 U.S. 619, 113 S.Ct. 1710, 123 L.Ed.2d 353 (1993) (error must have substantial and injurious influence in determining the verdict).

I.

As a preliminary matter, petitioner initiated this action prior to the effective date of the Antiterrorism and Effective Death Penalty Act of 1996, Pub.L. No. 104-132, 110 Stat. 1214 (codified at 28 U.S.C. § 2254). Consequently, the statute governing habeas petitions that was in effect prior to the passage of the AEDPA applies to this case. Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 [992]*992L.Ed.2d 481 (1997). Under that version of the statute, findings of fact made by a state trial or appellate court are entitled to a “presumption of correctness.” 28 U.S.C. § 2254(d) (subsequently amended); see Sumner v. Mata, 449 U.S. 539, 547, 101 S.Ct. 764, 66 L.Ed.2d 722 (1981).

The Ohio Supreme Court elected to hear this case on direct appeal and summarized the facts as follows:

On August 26, 1991, defendant-appellant, Edward Gilliam, made a statement to the police. Detective Mike Medders of the Elyria Police Department testified that Gilliam admitted that on August 21, he rode to Rite Nau Beverage in Elyria with William Moore and Bruce Tread-well. Appellant went inside and ordered a bottle of wine from the employee on duty, who was identified later as Joseph Pleban. Pleban told appellant that the total came to $2.01. Appellant handed Pleban $2.00, and while appellant was digging in his pockets for a penny, Treadwell appeared with a shotgun and demanded money.
Pleban testified the man who had ordered the wine did not appear surprised when Treadwell appeared with the shotgun. Pleban explained that he followed Treadwell’s orders, and went to the cooler to get the money bag. As Pleban walked to the cooler, Treadwell said, “Don’t try anything funny, I’ll put a hole in your back.” Treadwell took the money from the cash register and the money bag, and closed Pleban in the cooler. Pleban watched through the glass windows on the side of the cooler. He could no longer see appellant, but he could see Treadwell stuffing money into his pants. As Treadwell left, Pleban noticed that he could no longer see the shotgun.
Appellant stated to police that he and Treadwell left together and met Moore back at the car. A witness, Vicki Glover, testified that she had seen two black males laughing and running from the direction of Rite Nau. The men ran to a parked car four houses down from Rite Nau, in which car a third man (whom she identified as Moore) was waiting. The car was parked in front of the witness’ house and she was in her front yard approximately ten feet away from the vehicle. The four-door vehicle was gray in color. One man got into the front seat. The other man got in behind the driver, but had trouble getting in, “like he had a stiff leg or something.” The witness heard Moore ask the men either, “What did you get?” or, “How much did you get?”
When questioned by the Elyria police, Moore admitted that he had driven appellant and Treadwell to Rite Nau to “check it out.” Moore admitted that he assumed this meant they were “gonna rob the place.” In his tajoed confession, Moore also admitted that he had seen a shotgun before the robbery, which he believed Treadwell had brought, but Moore thought was owned by appellant. Moore stated that appellant and Tread-well went inside while Moore waited with the car. Gilliam and Treadwell returned to the car together, with money in a bag, and told Moore that they had gotten some money. Both men got into the car; appellant got into the front seat. Moore then drove them to Tread-well’s house. Treadwell carried the shotgun insidé and appellant went home.
Appellant was tried before the court, separately from Moore and Treadwell. The state called Moore to the witness stand, but he exercised his Fifth Amendment privilege and refused to testify. Consequently, the state offered Moore’s taped confession into evidence over appellant’s objection. The state also introduced appellant’s taped statement into evidence. Based on these tapes and other evidence, the trial court convicted appellant of aggravated robbery with both a firearm and a prior crime of violence specification.

State v. Gilliam, 70 Ohio St.3d 17, 18-19, 635 N.E.2d 1242, 1244 (1994). Petitioner does not take issue with this factual recitation but rather focuses upon the effect of [993]*993permitting Moore’s taped confession to be introduced at trial.

In denying relief to petitioner, the Ohio Supreme Court dealt exclusively with the issue now before us: “whether the admission of a co-defendant’s taped statement after the co-defendant becomes unavailable violated appellant’s Sixth Amendment right to confront adverse witnesses.” Id. at 19, 635 N.E.2d at 1245. The Court concluded that it did not:

The Confrontation Clause is a constitutional safeguard that ensures a defendant will not be convicted based on the charges of unseen, unknown, and unchallengeable witnesses. Lee v. Illinois, 476 U.S. 530, 540, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986). Thus, the Confrontation Clause bars the admission of some evidence that would otherwise be admissible under a hearsay exception. Idaho v. Wright, 497 U.S. 805, 814, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). When a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause requires a showing that he is unavailable and that the statement bears adequate “indicia of reliability.” Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

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Bluebook (online)
179 F.3d 990, 52 Fed. R. Serv. 631, 1999 U.S. App. LEXIS 11821, 1999 WL 371273, Counsel Stack Legal Research, https://law.counselstack.com/opinion/edward-gilliam-v-betty-mitchell-warden-ca6-1999.