Pamela D. Green, Cross-Appellant v. Dorothy J. Arn, Cross-Appellee

809 F.2d 1257, 1987 U.S. App. LEXIS 1371
CourtCourt of Appeals for the Sixth Circuit
DecidedJanuary 27, 1987
Docket85-3745, 85-3796
StatusPublished
Cited by74 cases

This text of 809 F.2d 1257 (Pamela D. Green, Cross-Appellant v. Dorothy J. Arn, Cross-Appellee) 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
Pamela D. Green, Cross-Appellant v. Dorothy J. Arn, Cross-Appellee, 809 F.2d 1257, 1987 U.S. App. LEXIS 1371 (6th Cir. 1987).

Opinions

MILBURN, Circuit Judge.

Dorothy Arn, Superintendent (hereinafter “the State”), appeals the decision of the district court granting petitioner Pamela Green’s application for a writ of habeas corpus under 28 U.S.C. § 2254. The district court held that petitioner’s convictions on two counts of kidnapping in violation of Ohio Rev.Code § 2905.01 and on three counts of gross sexual imposition in violation of Ohio Rev.Code § 2907.05 were obtained in violation of petitioner’s Sixth Amendment right to counsel. 615 F.Supp. 1231 (1985). In anticipation that we might [1258]*1258reverse, petitioner cross-appeals the district court’s rejection of her other asserted grounds for habeas relief.

The major issue we are asked to decide is whether harmless error analysis is appropriate where a petitioner demonstrates she was unrepresented by counsel for a critical period of time during the taking of evidence against her at trial. For the reasons set forth below, we answer this question in the negative and affirm the district court.

I.

The underlying facts, as set forth by the Ohio Court of Appeals, are as follows:

On September 22, 1982, two persons independently responded to the following advertisement in the classified section of the newspaper: “Receptionist, over 18, for body shop, no typing, will train, 721-4418.” After doing so, a similar chain of events occurred with both individuals.
Vicki Steadman answered the ad by phone about 10:00 a.m. and spoke with appellant Pamela Green. Pamela drove to Lyndhurst to pick up Vicki to take her to the interview. When they arrived at 9418 Buckeye Road, Pamela introduced Vicki to Jovan, appellant Wendy Rodgers’ four-year-old son, and then later told Jovan to stay in his bedroom. Pamela introduced Vicki to appellant Otis Rodgers.
Otis interviewed Vicki, and then Otis, Pamela and Vicki smoked some marijuana. After meeting Wendy Rodgers, Otis began kissing Vicki after Wendy returned to her bedroom, but Vicki pushed him away. He then took Vicki by the hand into Jovan’s bedroom and told Jo-van to leave. Otis pulled Vicki onto the bed pulled her sweater off, unhooked her bra and fondled her. Vicki was afraid and told Otis she had her menstrual period. Otis then laid her on the bed, put his knee on her arms, and ejaculated on Vicki’s bare chest.
For her own safety, Vicki told Otis she would think about the job and let him know the next day whether she wanted it. She tried calling her boyfriend for a ride home, but there was no answer. Otis then drove Vicki home.
Later that day at around 2:00 p.m., Maureen McNea responded to the newspaper ad. She was told that the receptionist job had been filled, but that a babysitting job was available. Pamela drove to Maureen’s house in Fairview Park to pick up Maureen to take her to the job interview. When they arrived at 9418 Buckeye Road, Pamela introduced Maureen to Jovan. Later, Maureen met Wendy.
After some brief conversation with Wendy, Maureen met Otis. When Otis left the room, Maureen asked to be taken home. Pamela said they would have to wait for the car which allegedly was being repaired. Maureen tried to phone a friend for a ride home, but the line was busy each time she tried.
While the appellants were in the bathroom engaged in bathtub sex, the phone was ringing. Appellants asked Maureen to answer the phone and record the name and race of the person phoning if in response to the newspaper ad. Maureen took several messages.
When the appellants came out of the bathroom, Maureen again asked to use the phone to try to find a ride home. Otis grabbed the phone, put his leg over it, and started laughing. Pamela said she would take Maureen home after she finished curling Otis’s hair, but she did not.
Instead, Otis talked to Maureen about becoming a call girl. Maureen was unresponsive, and Otis became aggravated. Wendy and Otis then took Maureen by her arms and threw her into the bedroom. They said it was time for her initiation. Otis attempted to talk Maureen into having sex with him. He showed her nude photographs, and he pulled her close to him and touched her. Maureen tried to leave the bedroom at that point, but she could not open the bedroom door.
Otis said he was sick of Maureen’s excuses. He called Wendy into the bed-
[1259]*1259room to show Maureen what would happen to her if she did not acquiesce in his demands. Wendy took a gun out of her purse, told Maureen she would be shot, laughed, and threw the gun to Otis. Otis waved the gun at Maureen and told her there was no way she could get out of having sex with him.
Maureen continued trying to talk her way out. Otis again said he was sick of her excuses. At that point, Pamela and Wendy came into the bedroom, held Maureen down on the bed and began undressing her. Otis undressed and got on top of Maureen at which time Maureen broke away. Otis masturbated and ejaculated on himself. Pamela and Wendy got up and said they had to get to work.
Otis asked Maureen if she wanted to go to Dallas with them the next day at noon. Maureen said they would call her and she would let them know. Otis then drove Pamela and Wendy to work and drove Maureen home.
Appellant Wendy Rodgers testified and denied touching Maureen. She stated she was sleeping since she worked in the evenings and did not feel well. She knew that Otis and Maureen were in the other bedroom with the door closed, but she said she trusted Otis. Wendy and Otis had been married two and one-half years. Wendy also testified that Pamela and Maureen left to buy cigarettes and returned. She denied the alleged bathtub sex and said that Maureen was offered the job. Wendy did not know whether Otis touched Vicki.
On cross-examination Wendy testified that it was important to know the race of the persons calling for the job since she and Otis were an interracial couple which would be offensive to some people. She also testified that no traveling was neces-
sary for the babysitting job, but it was necessary for the receptionist’s job.

Joint Appendix at 44-47.

Following petitioner’s jury conviction, the trial court pronounced a sentence of seven to twenty-five years imprisonment on each of the kidnapping counts, and two to five years imprisonment on each of the gross sexual imposition counts, all sentences to run consecutively. Petitioner appealed to the Ohio Court of Appeals, which modified her sentence to an aggregate minimum of fifteen years in compliance with Ohio Rev.Code § 2929.41(E)(2). The court affirmed petitioner’s conviction and sentence in all other respects. Petitioner’s motion for leave to appeal to the Ohio Supreme Court was denied for want of a substantial constitutional question.

Petitioner’s Sixth .

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Bluebook (online)
809 F.2d 1257, 1987 U.S. App. LEXIS 1371, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pamela-d-green-cross-appellant-v-dorothy-j-arn-cross-appellee-ca6-1987.