Olson v. Little
Filing
26
OPINION & ORDER: 1) 20 Report and Recommendation is ADOPTED as and for the opinion of the Court. 2) 23 Objections to the Report and Recommendation are OVERRULED. 3) 1 Petition for Writ of Habeas Corpus is DISMISSED WITH PREJUDICE. 4) A certifi cate of appealability SHALL issue only for petitioner's claims of prosecutorial misconduct. 5) 24 Motion to withhold decision on certificate of appealability and to allow briefing is DENIED. 6) Judgment will be entered with this order. Signed by Judge Karl S. Forester on 7/20/2012. (SCD)cc: COR
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF KENTUCKY
CENTRAL DIVISION at LEXINGTON
CIVIL ACTION NO. 5:09-cv-361-KSF
STEPHANIE DENISE OLSON,
V.
PETITIONER,
OPINION & ORDER
JEFF LITTLE,
Warden, Otter Creek Correctional Complex,
RESPONDENT.
**********
On November 12, 2009, Stephanie Olson filed a petition for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254 concerning her conviction in Kentucky state court for complicity to
murder. DE 1. Warden Jeff Little responded on March 9, 2010. DE 10. Consistent with local
practice, this matter was referred to the Hon. Edward B. Atkins, United States Magistrate Judge,
pursuant to 28 U.S.C. § 636(b).
On January 5, 2012, the Magistrate Judge filed his Report and Recommendation that the
petition be denied based on a review of the state court record and the applicable law. DE 20.
Following an extension of time, Olson filed objections to the Report and Recommendation on
February 9, 2012. DE 23. On February 23, 2012, Warden Little filed his response to Olson’s
objections. DE 25. This matter is now ripe for review.
I.
FACTUAL AND PROCEDURAL BACKGROUND
The facts of this matter were fully set out by the Supreme Court of Kentucky in Olson v.
Commonwealth, No. 2005-SC-592, 2008 WL 746651 (Ky. March 20, 2008) and were briefly
summarized in the Magistrate Judge’s Report and Recommendation. Accordingly, the facts are
recited herein only as necessary to place the Court’s disposition of this matter in context.
The victim of the June 6, 2002 murder was Diane Snellen, Olson’s mother, who disapproved
of Olson’s relationship with her boyfriend, David Dressman. Dressman and his acquaintance,
Timothy Crabtree, were accused of the murder.
Olson was convicted by a Scott Circuit Court jury of complicity to murder. Record (“R”) 2
at 2-4. As a result, she was sentenced to a term of imprisonment of twenty-five years. Olson’s
conviction and sentence were affirmed by the Kentucky Supreme Court. R. 6 at 112-137. Her
petition for rehearing [R. 7 at 138-150] was denied but led to a modification of the Kentucky
Supreme Court’s Opinion. The modification did not affect the holding of the case. R. 9 at 158-184.
Olson then filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. DE 1.
In support, Olson argued that she was entitled to relief on the following grounds: (1) the evidence
at the state trial was constitutionally insufficient to sustain her conviction for complicity to murder;
(2) she was denied a fundamentally fair trial and due process of law because of the improper
tactics employed by the prosecution to obtain the “impeachment” testimony of Richard Roberts; (3)
she was deprived of a fundamentally fair trial by the trial court’s numerous evidentiary errors; (4)
she was deprived of a fair trial and due process because the court denied her request for a mistrial
based on the prosecutor’s references in his opening statement to highly damaging testimony, which
testimony was not presented.
II.
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996, 28 U.S.C. § 2254(d)
(“AEDPA”), Magistrate Judge Atkins reviewed the state court’s adjudication of the merits of Olson’s
claims to determine if it:
(1)
resulted in a decision that was contrary to, or involved an unreasonable
application of, clearly established Federal law, as determined by the
Supreme Court of the United States; or
(2)
resulted in a decision that was based on an unreasonable determination of
the facts in light of the evidence presented in the State court proceeding.
28 U.S.C. § 2254(d)(1) and (2); see also Williams v. Taylor, 529 U.S. 362, 412 (2000). However,
“federal habeas corpus relief does not lie for errors of state law.” Estelle v. McGuire, 502 U.S. 62,
67 (1991). As noted by the Magistrate Judge, it is not the role of the reviewing court “to reexamine
2
state-court determinations on state-law questions.” Id. at 68 (quoting Lewis v. Jeffers, 497 U.S.
764, 780 (1990)). Rather, “[i]n conducting habeas review, a federal court is limited to deciding
whether a conviction violated the Constitution, laws or treaties of the United States.” Estelle, 502
U.S. at 68. Additionally, a federal court may not grant a writ of habeas corpus “simply because the
state court issued a decision that erroneously or incorrectly applies clearly established law; rather,
the state court’s application of law must have been objectively unreasonable.” Ware v. Renico, 371
F.3d 862, 865 (6th Cir. 2004).
Olson’s brief to object to the Magistrate Judge’s Report and Recommendation begins with
a verbatim repetition of the extensive factual background in the petition. Compare DE 23 at 2-18
to DE 1 at 4-20. This is followed by a lengthy and repeated discourse on habeas corpus law. See
DE 23 at 19-41; DE 1 at 23-45. Another eight pages of factual background follow. DE 23 at 41-48.
None of this discussion is tied to the Magistrate Judge’s Report. In fact, the Report is first
mentioned on page 48 of the so-called “Objections.” One has to wonder why counsel thought this
lengthy discourse was the best use of the Court’s valuable time.
A.
Application of the AEDPA
Olson’s first objection is that the AEDPA should not have been applied to her case because
the Supreme Court of Kentucky relied only on Kentucky case law in upholding the sufficiency of
the evidence to support her conviction. Accordingly, she asserts that her 14th Amendment claim
was not adjudicated on the merits and should be reviewed de novo.
The Kentucky Supreme Court applied the test for sufficiency of the evidence set forth in
Commonwealth v. Benham, 816 S.W. 2d. 186 (Ky. 1991). Benham asks whether the evidence is
sufficient for “a reasonable juror to believe beyond a reasonable doubt that the defendant is
guilty....” Id. at 1887. The federal test set forth in Jackson v. Virginia, 443 U.S. 307 (1979) is
whether, based on the evidence, “any rational trier of fact could have found the essential elements
3
of the crime beyond a reasonable doubt.” Id. at 319. The Magistrate Judge correctly concluded
that nothing in the state court opinion suggested any variance from the Jackson standard in ruling
on Olson’s claim. Additionally, as the Magistrate Judge noted, a number of courts in this Circuit
have found an application of the Benham standard to be substantially equivalent to that of Jackson,
such that the Kentucky Supreme Court adjudicated both the state and federal sufficiency of the
evidence claims. DE 20 at 6. Bowen v. Haney, 622 F. Supp. 2d 516, 547 (W.D. Ky. 2008) (This
Court finds no indication that the Kentucky Supreme court departed from the Jackson test for
insufficiency of the evidence in applying Benham); Longwell v. Arnold, 559 F. Supp. 2d 759, 767
(E.D. Ky. 2008) (The Supreme Court of Kentucky applied a similar standard as the Supreme Court
used in Jackson....); Hodge v. Haeberlin, No. 04-cv-185-KKC, 2006 WL 1895526 at *39 (E.D. Ky.
June 10, 2006) (“The words of the Supreme Court of Kentucky [citing Benham] clearly mirror the
constitutional standards set by the Supreme Court of the United States.”); see also Matthews v.
Parker, 651 F.3d 489, 503 n. 3 (6th Cir. 2011) (noting that the analysis for a failure to direct a
verdict and an insufficiency of the evidence claim are “materially identical” and that both Benham
and Jackson “scrutinize whether any rational trier of fact would find the element in question beyond
a reasonable doubt.”), rev’d on other grounds, Parker v. Matthews, ___ U.S. ___, 2012 WL
2076341 (June 11, 2012).
B.
Sufficiency of the Evidence
Next, Olson argues that the “Magistrate Judge did not correctly apply Jackson to the facts
of this case.” DE 23 at 54. The Supreme Court recently reiterated that sufficiency of the evidence
claims “face a high bar in federal habeas proceedings because they are subject to two layers of
judicial deference. First, on direct appeal, ‘it is the responsibility of the jury – not the court – to
decide what conclusions should be drawn from evidence admitted at trial. A reviewing court may
set aside the jury’s verdict on the ground of insufficient evidence only if no rational trier of fact could
have agreed with the jury.’” Coleman v. Johnson, ___ U. S. ___, 132 S.Ct. 2060, 2062 (2012),
4
(quoting Cavazos v. Smith, 565 U.S. 1, ___, 132 S.Ct. 2, 4 (2011)). “And second, on habeas
review, ‘a federal court may not overturn a state court decision rejecting a sufficiency of the
evidence challenge simply because the federal court disagrees with the state court. The federal
court instead may do so only if the state court decision was “objectively unreasonable.”’” Id.
(quoting Renico v. Lett, 559 U.S. ___, ___, 130 S.Ct. 1855, 1862 (2010)). See also Nali v. Phillips,
681 F.3d 837, 841 (6th Cir. 2012) (The Jackson “standard requires deference to the jury’s verdict
and to the state court’s review of that verdict.”). The Magistrate Judge correctly applied the
Jackson standard and AEDPA deference when considering Olson’s challenges to the evidence.
Olson does not object to the Magistrate Judge’s conclusion regarding evidence that David
Dressman and/or Timothy Crabtree killed Diane Snellen, Olson’s mother, by stabbing and that they
caused the death intentionally. She objects to the evidence of her complicity with respect to proof
of a voluntary act of assistance and proof of intent. DE 23 at 55-60. The Magistrate Judge
carefully reviewed the evidence and found that “the Kentucky Supreme Court’s determination was
not clearly contrary to, or an unreasonable application of, the constitutional standard articulated in
Jackson.” DE 20 at 14. This Court agrees there was sufficient circumstantial evidence to support
the jury verdict and the Magistrate Judge correctly recommended that the habeas petition be
denied.
Olson argues that her comment to Walter Martin could have been an example of proper
mourning, rather than an admission of guilt, and “does not lend itself to an interpretation that it was
actually a confession.” DE 23 at 55. Olson also challenges Barbosa’s testimony that Olson
described “a knife and the head was moving and the knife was pushed again and the head stopped
moving.” She claims this statement was “just as consistent with innocence as with guilt.” Id. at 56.
Olson further argues that evidence relied upon by the Magistrate Judge is “too speculative.” See
e.g. DE 23 at 57. However, a “reviewing court ‘does not reweigh the evidence, re-evaluate the
credibility of witnesses, or substitute its judgment for that of the jury.’” Nali, 681 F.3d at 842
5
(quoting Johnson v. Mitchell, 585 F.3d 923, 931 (6th Cir. 2009)). A reviewing court cannot second
guess the jury’s interpretation of Olson’s statements nor the weight given to them by the jury.
Brown v. Konteh, 567 F.3d 191, 205 (6th Cir. 2009).
The Magistrate Judge considered the following evidence of complicity.
•
Zach Greer, Dressman’s roommate, testified Olson made comments about wishing
her mother was dead and wishing someone would murder her mother. Transcript
(“Tr.”) Vol. VI at 885.
•
Gale Salyer testified she was living with Greer at the time of the murder. Id. at 832.
Olson told Gale that she hated her mother and wanted her to die. Id. at 835-37.
Olson increasingly made such comments about her mother and stated just prior to
the murder that she wanted to kill her mother. Id. at 839. Gale testified that the
morning of June 6, 2002, she was awakened by Olson who told her that Snellen
had committed suicide. Id. at 850. Olson, Dressman and Gale then drove to
Snellen’s house. Gale went upstairs alone and found Snellen’s body. Id. at 852-54.
Olson, from the bottom of the stairs, said: “is she not fucking dead, Gale? Is she
not fucking dead? She’s stabbed the fuck up. Is she not dead?” Id. at 854.
•
Martin testified that following Snellen’s death, he asked Olson about her parents.
Olson began to cry and said “she was part of her mother’s death.” Tr. Vol. XI at
1588-89.
•
Barbosa testified she met Olson while they were in jail together from July through
September 2004. Tr. Vol. XV at 2111. Olson told Barbosa that Snellen did not like
Dressman. Olson said she did not like her mother. Id. at 2116. She told Barbosa
that if she was acquitted, she would receive $200,000 from her mother’s life
insurance policy. Id. at 2118. Olson also told Barbosa that Dressman was the
6
person who stabbed Snellen and that Crabtree was present during the murder. Id.
at 2124-25, 2127. Olson described the murder to Barbosa, stating that Snellen’s
head continued to move so “they hit the knife again and she didn’t move no more.”
Id. at 2126.
•
Shawn Satterly, who lived near Snellen, testified he saw a small red hatchback
parked near Snellen’s house around 11:30 p.m. the night of the murder. Tr. Vol. VII
at 940-41. The car was similar to one that frequently parked in Snellen’s driveway.
Id. at 948-49. He also saw a young male crouched near Snellen’s house around
11:30 p.m. Id. at 942-44. In his police statement, however, Shawn said the vehicle
he saw was not Olson’s Id. at 963-64.
•
Shawn’s sister, Megan, also testified to seeing a young male crouched near
Snellen’s house on the night of the murder. Id. at 969-70. She also saw the red car
parked on the street near Snellen’s house, but she did not know for sure whether
the car was Olson’s. Id. at 970-71.
•
Joe Jewell, Snellen’s neighbor, testified that he saw Olson’s car driving in the area
of Snellen’s home when he was on his way to work around 10:30 p.m. Tr. Vol. VI
at 791-97. Jewell observed the car was sitting low and believed there was extra
weight in it. Id. at 801-803. He had worked on Olson’s car at least two times in the
past. Id. at 789-90. He thought Olson drove a red Toyota.
It was actually a
Honda, but he thought Toyotas and Hondas looked the same. Id. at 790. He would
have recognized Olson’s car. Id.
•
Kevin Butler said Tim Crabtree told him he was driven to a Frisch’s by “Stephanie”
so Crabtree could meet with Dressman who worked there. Tr. Vol. IV at 567-72.
7
Richard Roberts later testified that it was during this meeting that Dressman gave
Crabtree the murder weapon, a knife stolen from Frisch’s Tr. Vol. XIV at 2096.
•
Alfred Hensley, kitchen leader at the Frisch’s restaurant, testified that a knife
disappeared from the restaurant around the first week of June 2002 and was never
found. Tr. Vol. V at 602-608. Hensley described the missing knife as seven or
eight inches long, with a serrated blade and sharp tip. Id. at 609-10.
•
Dr. John Hunsaker, who performed an autopsy on Snellen’s body, testified that she
had suffered multiple stab wounds. Tr. Vol. XIII at 1882-87. The wounds were
made by a blade of fairly significant length, possibly seven or eight inches long. Id.
at 1908-09. He testified that a knife obtained from Frisch’s, identical to the missing
one, could have made the wounds, but was not necessarily the murder weapon.
Id. at 1909-11, 1917, 1931.
•
Additionally, several witnesses testified that Olson did not exhibit a proper degree
of mourning following her mother’s murder. Tr. Vol. VI at 856; IX at 1290-92, 125556; XI at 1535-36.
As the Magistrate Judge noted, “circumstantial evidence alone is sufficient to sustain a
conviction.... ” United States v. Spearman, 186 F.3d 743, 746 (6th Cir. 1999). It is not necessary
to exclude every reasonable hypothesis except that of guilt, so long as there is enough evidence
for any rational trier of fact to have found proof beyond a reasonable doubt. Id., DE 20 at 10. While
Olson contends the evidence was highly speculative, the Magistrate Judge correctly concluded that
a rational trier of fact could have found beyond a reasonable doubt that Olson was complicit in the
murder of Diane Snellen. This Court agrees with the Magistrate Judge’s conclusion that the
Kentucky Supreme Court’s adjudication was not clearly contrary to, nor an unreasonable
application of, the constitutional standard articulated in Jackson.
8
C.
Olson’s Prosecutorial Misconduct Claim Was Procedurally Defaulted
Olson admits that habeas petitioners must adequately present their claims to the state
courts before seeking relief from federal court. DE 23 at 61. Under the exhaustion requirement,
a petitioner must have fairly presented the “substance” of her federal habeas claim to the state
courts, so that the state judiciary may have the first opportunity to hear the claim. Lyons v. Stovall,
188 F.3d 327, 331 (6th Cir. 1999). Specifically, Olson must have presented to the state court both
the factual and legal basis for her federal constitutional claims. Hicks v. Straub, 377 F.3d 538, 552
(6th Cir. 2004). Further, if the claim was not fairly presented, and the time to present the claim to
the state court has run, then the claim is deemed to have been procedurally defaulted. Hicks v.
Straub, 377 F.3d 538, 551 (6th Cir. 2004).
There are four ways in which a petitioner can fairly present a claim to a state court, as
outlined by the Sixth Circuit: (1) phrasing the federal claim in terms of the pertinent constitutional
law or in terms sufficiently particular to allege a denial of the specific constitutional right in question;
(2) reliance upon federal cases employing the constitutional analysis in question; (3) reliance upon
state cases employing the federal constitutional analysis in question; or (4) alleging facts well within
the mainstream of the pertinent constitutional law. Whiting v. Burt, 395 F.3d 602, 613 (6th Cir.
2005).
Olson objected to the Magistrate Judge’s determination that she procedurally defaulted her
claim of prosecutorial misconduct, arguing that the court applied the “fair presentation” standard
too narrowly. Factually, Tim Crabtree and Richard Roberts were both in state custody on unrelated
charges in the fall of 2002. Tr. Vol. XIV at 2072. Roberts told police that Crabtree admitted his
involvement with Dressman in Snellen’s murder. Id. at 2091-99. Crabtree testified at Olson’s trial
that Dressman admitted to killing “that woman.” Tr. Vol. XIV at 2068. In Crabtree’s testimony,
however, he expressly denied having any involvement in Snellen’s murder. Id. at 2072-76. That
denial opened the door for the prosecution to impeach Crabtree through the testimony of Richard
9
Roberts. In her habeas petition, Olson argued that the prosecution employed improper tactics to
obtain Timothy Crabtree’s “proffer of testimony” and the impeachment testimony of Richard
Roberts and, thereby, denied her right to a fair trial.
Olson’s claim regarding the testimony of Crabtree and Roberts was presented to the
Kentucky Supreme Court as only an evidentiary issue, not as prosecutorial misconduct. She urged
the state court to adopt the “primary purpose test” used by federal courts for evaluating whether
a party may properly impeach its own witness under Federal Rule of Evidence 607. R. 3 at 42-43.
The state court rejected this argument because the Kentucky Rules of Evidence allow prior
inconsistent statements to be admitted not only for impeachment, but also as substantive evidence.
KRS 801A()(1). Olson never raised a federal constitutional claim of prosecutorial misconduct in
state court.
Olson’s appeal brief did not cite any federal or state cases “employing the constitutional
analysis in question.” Whiting, 395 F.3d at 613. The only federal case cited in her brief is United
States v. Gomez-Gallardo, 915 F.2d 553 (9th Cir. 1990), which references an analysis of Federal
Rule of Evidence 607 – this case does not mention prosecutorial misconduct nor the elements
required to prove such a claim. Additionally, Olson has not met any of the other fair presentation
tests set forth in Whiting. Olson’s argument heading in state court that she was “denied her right
to a fair trial” did not give her a license to raise a totally different legal theory in her habeas petition.
“A petitioner fairly presents a federal habeas claim to the state courts only if he ‘asserted both the
factual and legal basis for his claim.’” Hicks v. Straub, 377 F.3d 538, 552 (6th Cir. 2004) (quoting
McMeans v. Brigano, 228 F3d 674, 681(6th Cir. 2000)). The Magistrate Judge correctly held that,
while the brief outlined factual allegations that might underlie a prosecutorial misconduct claim, this
is not enough to “fairly present” that constitutional claim to the state court. DE 20 at 22. See
Wagner v. Smith, 581 F.3d 410, 415-18 (6th Cir. 2009).
10
Even if Olson had not procedurally defaulted her claim of prosecutorial misconduct, she
would not be entitled to relief. For habeas relief to be warranted on the basis of prosecutorial
misconduct, it is not enough that the prosecutor’s conduct was “undesirable or even universally
condemned.” Darden v. Wainwright, 477 U.S. 168, 181 (1986). Rather, the Petitioner must show
that the misconduct “so infected the trial with unfairness as to make the resulting conviction a
denial of due process.” Id. The principal test for alleged prosecutorial misconduct is the fairness
of the trial, not the culpability of the prosecutor. Smith v. Phillips, 455 U.S. 209, 219 (1982). In
order to sustain a claim for prosecutorial misconduct, Olson would need to show “that (1) the
evidence the prosecution presented was false; (2) the prosecution knew it was false; and (3) the
false evidence was material.” Workman v. Bell, 178 F. 3d 759, 766 (6th Cir. 1998). The proffered
evidence also must be more than merely misleading, but unquestionably false, for which Olson
bears the burden. Byrd v. Collins, 209 F.3d 486, 517 (6th Cir. 2000). Further, due process is
denied only if the prosecution’s knowing introduction of false testimony was reasonably likely to
have affected the judgment of the jury. States v. Lochmondy, 890 F.2d 817, 823 (6th Cir. 1989).
Olson claims that the prosecution bargained for Crabtree’s testimony, knowing it to be
untruthful, in order to impeach that testimony. However, nothing in the objections to the Magistrate
Judge’s Report and Recommendation nor anything in the record indicate that “the evidence in
question was ‘indisputably false,’ rather than merely misleading.” Byrd v Collins, 209 F.3d 486, 517
(6th Cir. 2000). There is simply inadequate evidence to show that the prosecution knew the
evidence was indisputably false, notwithstanding the fact that they impeached their own witness.
Further, one can believe testimony to be false without knowing it to be indisputably false. Olson’s
objections to the Magistrate Judge’s Report and Recommendation do not change the legal analysis
nor the facts; therefore, Petitioner’s prosecutorial misconduct claim is both procedurally defaulted
and without merit.
11
D.
Evidentiary Errors
Olson’s third claim is she was denied a fundamentally fair trial by: 1) the admission of
testimony relaying out-of-court statements made by David Dressman; 2) the admission of Tim
Crabtree’s proffer; 3) the admission of statements made by Diane Snellen to Nancy Lusby; 4) the
admission of Kevin Butler’s testimony that Crabtree said “Stephanie” drove him to Frisch’s to meet
with Dressman; 5) the admission of all testimony regarding Olson’s lack of mourning; 6) the
admission of a video depicting Olson’s encounter with police; and 7) the exclusion of evidence of
Richard Roberts’ misdemeanor conviction for false reporting. On direct appeal to the Kentucky
Supreme Court, Olson raised each of these as individual claims asserting that the trial court had
erred by admitting evidence against her and excluding evidence she sought to introduce. She now
claims that these errors, individually and cumulatively, deprived her of a fundamentally fair trial.
Generally, federal habeas corpus review of evidentiary rulings based on state law is
“extremely limited.” Jordan v. Hurley, 397 F.3d 360, 362 (6th Cir. 2005). It does not rise to the
level of constitutional magnitude unless it was so egregious that the petitioner was denied a
fundamentally fair trial. See Burgh v. Mitchell, 329 F.3d 496, 512 (6th Cir. 2003). To determine
whether the admission or exclusion of evidence denied fundamental due process rights, a court
should consider the extent to which the evidence is “critical” to the case, whether it “tend[s] to
exculpate” the accused, and whether the evidence bears “persuasive assurances of trustworthiness.” Turpin v. Kassulke, 26 F.3d 1392, 1396 (6th Cir. 1994).
1.
Admission of Dressman’s Hearsay Statements Was Not a Due Process
violation
There were two arguments in the Kentucky Supreme Court regarding hearsay testimony.
First, Crabtree testified that, prior to the murder, Dressman asked him how to kill a person in a
quiet place; and, sometime after the murder, Dressman admitted to killing Snellen. Second, Steve
McCormick testified that, just days after the murder, Dressman said “they” took care of “that
12
problem,” when asked whether he knew who killed Snellen. Olson argued before the Kentucky
Supreme Court that the statements made by Dressman to Crabtree and McCormick were
inadmissible hearsay under the state rules of evidence and that admitting them violated her rights
under the Confrontation Clause. [R. 3 at 33-37]. The Kentucky Supreme Court addressed the
merits of her Confrontation Clause claim, holding that Dressman’s out-of-court statements were
non-testimonial and, thus, did not implicate Petitioner’s confrontation rights under Crawford v.
Washington, 541 U.S. 36 (2004). Olson, 2008 WL 746651 at *3-4.
Further, the Kentucky Supreme Court found that, while the admission of the hearsay
evidence outside of an exception violated the Kentucky Rules of Evidence, the error was harmless
because there was no reasonable probability that the otherwise inadmissible testimony affected
the verdict. Olson, 2008 WL 746651 at *4. Olson asserts that the statements implicated her in the
murder and were so prejudicial that they deprived her of a fundamentally fair trial.
Olson first objects to the Magistrate Judge’s determination that this claim was procedurally
defaulted. The Magistrate Judge stated that Olson’s brief before the Kentucky Supreme Court did
not assert both a factual and legal basis for this type of claim. DE 20 at 29. She made no legal
arguments that would support this type of claim except for mentioning “due process” once. Her
arguments were not developed beyond a mere evidentiary error.
In her objections to the
Magistrate Judge’s Report and Recommendation, Olson asserts that her petition for rehearing did
cite the proper constitutional standard for a claim of denial of due process and a fair trial. However,
new issues cannot be raised in a petition for rehearing. See Easley v. Reuss, 532 F.3d 592, 59495 (7th Cir. 2008) (Panel rehearing is not a vehicle for presenting new arguments); Costo v. United
States, 922 F.2d 302, 302-03 (6th Cir. 1990) (“[A]n argument not raised in an appellate brief ... may
not be raised for the first time in a petition for rehearing.”). Kentucky Rule of Civil Procedure 76.32
is quite clear.
13
Except in extraordinary cases when justice demands it, a petition for rehearing shall
be limited to consideration of the issues argued on the appeal and will be granted
only when it appears that the court has overlooked a material fact in the record, or
a controlling statute or decision, or has misconceived the issues presented on the
appeal or the law applicable thereto.
CR. 76.32(1)(b). A whole new legal theory of denial of a fundamentally fair trial does not fit within
that framework. The Magistrate Judge correctly determined that Olson’s claim was not exhausted.
Moreover, even if the claim had been exhausted, the Magistrate Judge properly concluded
Olson would not be entitled to relief. DE 20 at 29.
In order to convict Olson of complicity to
commit murder, the prosecution had the burden of proving beyond a reasonable doubt that
Dressman and/or Crabtree had intentionally killed Snellen. The erroneously admitted statements
above directly implicate Dressman in the murder of Snellen and were, therefore, prejudicial to
Olson. Nonetheless, Olson failed to demonstrate that the statements were a “crucial, critical, highly
significant factor” in her conviction, such that the error could be deemed not harmless. Brown v.
O’Dea, 227 F.3d 642, 645 (6th Cir. 2000). As noted by the Magistrate Judge, even if Crabtree’s
testimony regarding Dressman’s admission of guilt had been excluded, Crabtree still could have
been questioned regarding his own involvement in the murder. Crabtree’s denial of involvement
would have opened the door to impeachment with Roberts’ testimony and established Crabtree’s
involvement in the murder.
Moreover, the Kentucky Supreme Court noted that there was
admissible evidence that Dressman asked Crabtree how to kill someone in a quiet place, and
Crabtree suggested stabbing them in the lungs. Olson, 2008 WL 746651 at *4. There was
evidence that a knife disappeared from the restaurant where Dressman worked shortly before the
murder. Id. Crabtree told Kevin Butler that he was driven to a Frisch’s by “Stephanie” so that
Crabtree could meet with Dressman. Tr. Vol. IV at 567-72. Roberts testified that Dressman gave
Crabtree the murder weapon during this meeting. Tr. Vol. XIV at 2096. Barbosa testified that
14
Olson told her she was in the home during the murder, that Dressman stabbed Snellen, that
Crabtree was present, and that Olson described the murder. Tr. Vol. XV at 2121, 2124-27.
In her Objections, Olson relies on two cases. In the first, Thomas v. Hubbard, 273 F.3d
1164 (9th Cir. 2002), the court found a number of evidentiary errors, the cumulative effect of which
were deemed not to be harmless error. Unlike in Hubbard, here there was other evidence
connecting Dressman and/or Crabtree to the murder. The second case, Ege v. Yukins, 485 F.3d
364 (6th Cir. 2007), found the admission of the only piece of physical evidence connecting the
defendant to the crime was not harmless. The evidence admitted here does not rise to this level.
Accordingly, the erroneous admission of Dressman’s out-of-court statements did not rise to the
level of a due process violation.
2.
Failure to admit a witness’ prior conviction did not violate Petitioner’s
right to confrontation
Olson next claims that by improperly excluding evidence of a witness’ prior misdemeanor
conviction, the trial court violated her Confrontation Clause rights. At trial, the defense sought to
question Richard Roberts, a government witness, about a prior misdemeanor conviction for falsely
reporting an incident to the police. Pursuant to the Kentucky Rules of Evidence, the trial court ruled
that the defense could not question Mr. Roberts about his false reporting conviction. On direct
appeal, Olson argued that the trial court’s ruling deprived her “of her right to confront Roberts and
due process contrary to the Sixth and Fourteenth Amendments, United States Constitution and
Sections 2 and 11, Kentucky Constitution, which includes the right to attack the credibility of a
witness by demonstrating that the witness may have an interest, bias or prejudice that would cause
him to testify in a certain way.” R. 3 at 41-46. The Kentucky Supreme Court affirmed the trial
court’s ruling, holding that Roberts’ misdemeanor conviction was inadmissible under KRE 609(a),
which permits impeachment if the crime was a felony, and under KRE 608(b), which concerns
specific instances of conduct other than criminal convictions. Olson, 2008 WL 746651 at *9.
15
The Magistrate Judge found this claim had not been procedurally defaulted, and Olson
objected to the analysis on the merits of her Confrontation Clause claim. Trial judges retain wide
latitude “to impose reasonable limits on cross-examination based on concerns about, among other
things, harassment, prejudice, confusion of the issues, the witness’ safety, or interrogation that is
repetitive or only marginally relevant.” Delaware v. Van Arsdall, 475 U.S. 673, at 679 (1986).
States also have broad authority to promulgate rules that exclude evidence so long as they are not
arbitrary or disproportionate to the purposes they are designed to serve. United States v. Scheffer,
523 U.S. 303, 308 (1998). In this case, the state court found that evidence of Roberts’ prior
misdemeanor conviction could not be admitted under the Kentucky Rules of Evidence (“KRE”).
Olson asserts this evidence was admissible under KRE, but a state’s misapplication of its own rules
of evidence may not be considered in a federal court’s habeas review. Estelle v. McGuire, 502 U.S.
62, 67-68 (1991). Therefore, the only remaining question is whether the exclusion of Roberts’ prior
conviction violated the federal Constitution. Id. at 68.
Where a defendant’s ability to cross examine a witness has been limited as was done in
this case, the reviewing court must determine “whether the jury had enough information, despite
the limits placed on otherwise permitted cross-examination, to assess the defense theory.” Stewart
v. Wolfenbarger, 468 F.3d 338, 347 (6th Cir. 2006). Further, “the bounds of the trial court’s
discretion are exceeded when the defense is not allowed to place before the jury facts from which
bias, prejudice or lack of credibility of a prosecution witness might be inferred.” Id. Olson asserts
that the evidence of Roberts’ prior misdemeanor conviction would have demonstrated: (1) Roberts’
motive to testify falsely and (2) Roberts’ general lack of credibility.
First, the Magistrate Judge noted this particular piece of impeachment evidence would not
have created an inference that Roberts had a motive to testify in favor of the prosecution. Rather
than exposing a motive to lie, Roberts’ prior misdemeanor conviction could have been used by the
prosecution to show that he was being truthful. Indeed, having already been convicted of false
16
reporting, he would be less likely to give another false statement to the police within such a short
time frame. DE 20 at 334. Second, Olson was allowed to ask if Roberts had been convicted of
a felony, what his sentence was, if he had filed a motion to seek shock probation, if he had a deal
with the Commonwealth, and whether he hoped to receive favorable treatment in exchange for his
testimony. Thus, Olson had an opportunity to question Roberts on whether he sought to receive
or had been offered anything in exchange for his testimony.
State rules may exclude evidence without violating the Confrontation Clause so long as
those rules are not “arbitrary” or “disproportionate to the purposes they are designed to serve.”
Boggs v. Collins, 226 F.3d 728, 743 (6th Cir. 2000). In Childers v. Commonwealth, 332 S.W.3d
64, 72 (Ky. 2010), modified on denial of reh’g (March 24, 2011), the Kentucky Supreme Court
confirmed that KRE 608 and 609 prohibit admission of a witness’ prior misdemeanor convictions
and specific instances of conduct that resulted in a conviction. The court explained that these rules
manage the prejudice associated with a prior conviction by providing careful controls for when and
how a conviction may be admitted. Id. This Court agrees that Kentucky’s evidence rules are
neither arbitrary nor disproportionate to the purposes they are designed to serve. Moreover, the
defense could have asked whether the witness had a motive to testify in favor of the prosecution
or was biased toward the prosecution. This Court agrees with the Magistrate Judge’s conclusion
that Olson has failed to show that Kentucky’s Rules of Evidence denied her right to confront
Roberts.
3.
Remaining Evidentiary Claims
The remainder of the petitioner’s evidentiary claims are procedurally defaulted. In her
objections to the Magistrate Judge’s Report and Recommendation, Olson simply asserts that by
“phrasing the claim in terms of constitutional law or in terms sufficiently particular to allege a denial
of a specific constitutional right or alleging facts well within the mainstream of constitutional law,”
17
she preserved claims for federal habeas review. McMeans v. Brigano, 228 F.3d 674, 681 (6th Cir.
2000). While this statement of the law is correct, Olson did not meet the requirements; therefore,
her claims are procedurally defaulted.
Olson cited no federal or state cases employing constitutional standards. She simply
claimed that the evidentiary errors deprived her of a fair trial contrary to the Sixth and Fourteenth
Amendments. These arguments were not developed beyond claims of evidentiary error. Further,
she only made bald statements that these errors violated her constitutional rights. A simple
reference to the Sixth and Fourteenth Amendments along with general allegations of the denial of
the right to a fair trial does not fairly present a claim to the state court. Blackmon v. Booker, 394
F.3d 399, 401 (6th Cir. 2004) (claim not fairly presented where petitioner’s only citation to federal
authority appeared in a section heading and petitioner “failed to develop any cogent arguments
regarding those rights beyond naked assertions that they were violated.”).
Even if these claims of evidentiary error are not procedurally defaulted, Olson is not entitled
to relief on the merits. As previously noted, federal habeas corpus review of evidentiary rulings
based on state law is “extremely limited,” as the court noted in Jordan v. Hurley, 397 F.3d 360, 362
(6th Cir. 2005). An error does not rise to the level of constitutional magnitude unless it was so
egregious that the petitioner was denied a fundamentally fair trial. See Burgh v. Mitchell, 329 F.3d
496, 512 (6th Cir. 2003). To determine whether the admission or exclusion of evidence denied a
petitioner fundamental due process rights, a court should consider the extent to which the evidence
is “critical” to the case, whether it “tend[s] to exculpate” the accused, and whether the evidence
bears “persuasive assurances of trustworthiness.” Turpin v. Kassulke, 26 F.3d 1392, 1396 (6th Cir.
1994).
18
i.
Lusby Testimony
Ms. Lusby was a friend of Diane Snellen and testified to the nature of Olson’s relationship
with her mother, based on conversations Lusby had with Ms. Snellen. The Kentucky Supreme
Court held it was error to admit this evidence, but found the error to be harmless in light of the
“overwhelming evidence of a troubled mother-daughter relationship.” [R. 6 at 131-133]. In her
objections, Olson reiterates her arguments regarding an overly narrow interpretation of exhaustion,
which this Court has previously addressed. She further argues that the allowance of “such
rampant, unreliable hearsay to permeate the trial certainly rose to the level of fundamental
unfairness.” DE 23 at 82.
Olson specifically claims that she had no means of confronting Snellen regarding those
statements or teasing out details to provide more context for the jury. However, she fails to show
how this was “critical” to her case or how it would exculpate her, particularly in light of the extensive
evidence of the bad relationship between Olson and her mother. In light of these considerations,
the Court agrees that Olson is not entitled to relief for this claim.
ii.
Butler Testimony
Kevin Butler, a coworker of David Dressman, testified that Crabtree told him, in response
to a question of how he got to Frisch’s (where Dressman and Butler were coworkers), that
“Stephanie” had brought him. Olson wants this Court to engage in an analysis of the proper
interpretation of the Kentucky Rules of Evidence. Whether or not a state misapplies its own rules
of evidence is not part of a federal court’s habeas review. Estelle v. McGuire, 502 U.S. 62, 67-68
(1991). Additionally, the admission of this testimony, as noted by the Kentucky Supreme Court,
was proper as a statement made by a coconspirator. This evidentiary ruling does not rise to the
level of a constitutional violation because the petitioner failed to show how the ruling was egregious
19
when it accorded with the Kentucky Rules of Evidence and the Kentucky Supreme Court clearly
held that the trial judge did not abuse his discretion. R. 6 at 123.
iii.
Mourning Evidence
The trial court admitted a significant amount of evidence that showed that Olson did not
properly mourn, according to those testifying. Olson claims that this evidence was inadmissible
because it was irrelevant, or, in the alternative, that it was prejudicial. She asks this Court to again
analyze the Kentucky Supreme Court’s interpretation of the Kentucky Rules of Evidence. Whether
or not a state misapplies its own rules of evidence is not part of a federal court’s habeas review.
Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Additionally, this evidentiary ruling does not rise
to the level of a constitutional violation because the petitioner failed to show how the ruling was
egregious when it accorded with the Kentucky Rules of Evidence and the Kentucky Supreme Court
clearly discussed their reasons for affirming the admission of the evidence. R. 6 at 129.
iv.
Admission of DocuCam Video
The trial court admitted a camera videotape of her encounter with Officer Glenn Sly. Olson
claims that portions of this video are irrelevant, or, alternatively, substantially more prejudicial than
probative. Once again, Olson wants this Court to engage in an analysis of the proper interpretation
of the Kentucky Rules of Evidence. That opportunity is declined for the reasons stated above. This
evidentiary ruling also does not rise to the level of a constitutional violation. R. 6 at 129.
E.
Failure to Grant a Mistrial
Olson’s final objection to the Magistrate Judge’s Report and Recommendation concerns
the denial of her motion for a mistrial after the prosecution failed to call two witnesses referenced
in its opening statement. At the outset of trial, the Prosecutor told the jury he would call Tim
Creech and Debbie DePew, who would testify that Olson admitted her involvement in the murder.
Ultimately, the prosecution failed to call either witness to testify. Olson moved for a mistrial at the
20
close of the Commonwealth’s case based on this failure. The trial court denied the motion,
reasoning that she could point this out to the jury in her closing statement. Olson, 2008 WL 746651
at *7.
On appeal, the Kentucky Supreme Court concluded that the trial court properly rejected
Olson’s motion for a mistrial. She now argues that the failure to grant a mistrial is a deprivation of
her right to a fair trial. This claim is procedurally defaulted because it was not fairly presented to
the Kentucky Supreme Court as a violation of the federal Constitution. She did not cite any federal
law in support of her claim, and the state cases cited did not employ the appropriate federal
constitutional standard. Because this claim was not fairly presented to the Kentucky Supreme
Court, it is not exhausted and, therefore, procedurally defaulted.
Additionally, even if Olson had fairly presented this claim to the Kentucky Supreme Court,
it is clear that she would not be entitled to relief on the merits under the standard set forth in Frazier
v. Cupp, 394 U.S. 731 (1969). The circumstances of this case do not warrant relief because (1)
there is no indication that the prosecution acted in bad faith and expected that the two witnesses
would not testify; and (2) the prosecutor neither emphasized his reference to their expected
testimony nor “touted” that their testimony was a crucial part of the case. Id. at 736. In her
objections, Olson does not cite any case that finds a similar set of facts to be a violation of the
Constitution. Moreover, the defense was permitted not only to point out this failure to the jury, but
also to argue that the prosecution did not meet its burden of proof. Accordingly, this Court agrees
with the Magistrate Judge that this claim should be denied.
IV.
CONCLUSION AND CERTIFICATE OF APPEALABILITY
In conclusion, having carefully reviewed Olson’s objections and finding them to be without
merit, and having made a de novo determination, this Court is in agreement with the Magistrate
Judge’s Report and Recommendation. Therefore, Olson’s objections will be overruled. To the
21
extent that Olson failed to object to any portion of the Magistrate Judge’s Report and
Recommendation, she has waived her right to appeal. See Wright v. Holbrook, 794 F.2d 1152,
1154-55 (6th Cir. 1986). Nevertheless, this Court, having examined the record and having made
a de novo determination, is in agreement with the entirety of the Magistrate Judge’s Report and
Recommendation.
In determining whether a certificate of appealability should issue as to Olson’s claims, the
Court turns to Slack v. McDaniel, 529 U.S. 473 (2000), for guidance. In that case, the United
States Supreme Court held:
Where a district court has rejected the constitutional claims on the merits, the
showing required to satisfy § 2253(c) [governing the issuance of certificates of
appealability] is straightforward: The petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the constitutional claims
debatable or wrong. The issue becomes somewhat more complicated where, as
here, the district court dismisses the petition based on procedural grounds. We
hold as follows: When the district court denies a habeas petition on procedural
grounds without reaching the prisoner's underlying constitutional claim, a COA
should issue when the prisoner shows, at least, that jurists of reason would find it
debatable whether the petition states a valid claim of the denial of a constitutional
right and that jurists of reason would find it debatable whether the district court was
correct in its procedural ruling.
Id. at 484. This Court determines that:
(1) Olson’s claim that the evidence at trial was insufficient is not a close call or one which
is “debatable”; therefore, a certificate of appealability will not issue.
(2) A certificate of appealability should issue for petitioner’s claim of prosecutorial
misconduct, dismissed on procedural grounds, because “jurists of reason would find it debatable
whether the petition states a valid claim of the denial of a constitutional right and that jurists of
reason would find it debatable whether the district court was correct in its procedural ruling.” Id.
(3) Olson’s claim that the numerous evidentiary errors, cumulatively, deprived her of a right
to fair trial is not a close call or one which is “debatable” because federal habeas review of state
evidentiary rulings is limited and the admission or exclusion of this evidence was not egregious
22
such that a constitutional violation is even questionable. Therefore, a certificate of appealability
will not issue for this claim.
(4) A certificate of appealability should not issue for Olson’s claim that the trial court
deprived her of a fair trial and due process by denying her motion for a mistrial after the prosecution
failed to call witnesses referenced in the opening statement, dismissed on procedural grounds,
because “jurists of reason would [not] find it debatable whether the petition states a valid claim of
the denial of a constitutional right and that jurists of reason would [not] find it debatable whether
the district court was correct in its procedural ruling.” Id.
After having considered Olson’s objections and having made a de novo determination, this
Court is in agreement with the Magistrate Judge’s Report and Recommendation. Accordingly, the
Court, being otherwise fully and sufficiently advised,
IT IS ORDERED that:
(1) The Magistrate Judge’s Report and Recommendation is ADOPTED as and for the
opinion of the Court;
(2) Petitioner’s objections to the Magistrate Judge’s Report and Recommendation [DE 23]
are OVERRULED;
(3) Petitioner’s petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 is
DISMISSED WITH PREJUDICE;
(4) A certificate of appealability SHALL issue only for petitioner’s claims of prosecutorial
misconduct;
(5) Petitioner’s motion to withhold decision on certificate of appealability and to allow
briefing [DE 24] is DENIED;
and
23
(6) Judgment will be entered contemporaneously with this order.
This July 20, 2012
24
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?