Summary
In McKinney v. Bruce, No. 02-3248 JAR (D. Kan. July 29, 2004), the United States District Court in Kansas considered whether a murder victim's (Miller) statements to his uncle were violative of Crawford: "Miller's statements that `Les' [a defendant] wanted to talk to him and that he was leaving to go see what `Les' wanted [are] nontestimonial.
Summary of this case from In re E.HOpinion
Case No. 02-3248-JAR.
July 29, 2004
MEMORANDUM AND ORDER
This matter is before the Court on a Petition for a Writ of Habeas Corpus (Doc.1) seeking federal habeas relief from a state conviction, pursuant to 28 U.S.C. § 2254. After considering the parties' submissions, the Court is prepared to rule. The Petition shall be denied because Petitioner Celester McKinney has failed to show his constitutional rights were violated by the state court's: admission of hearsay statements of the deceased victim; denial of a motion for new trial based on comments in the prosecutor's closing argument; procedure used to read back testimony at the jury's request; and failure to grant a new trial on the basis of the state's use of allegedly perjured testimony which was later recanted.
BACKGROUND
The Kansas Supreme Court gave a thorough account of the facts underlying Mr. McKinney's conviction for first-degree premeditated murder, which that court affirmed on direct appeal in State v. McKinney. To the extent that Mr. McKinney has not rebutted these facts by clear and convincing evidence, this Court has relied on the state court's factual determinations throughout this section.
272 Kan. 331, 33 P.3d 234 (2001).
For purposes of this Petition for relief, the material facts are as follows. Petitioner Celester McKinney, his brother Dwayne McKinney, and their cousin Brian Betts, were charged with first-degree premeditated murder of Greg Miller, who had been shot eighteen times with both a shotgun and a rifle. A pretrial motion to sever having been granted, the three defendants were tried separately. Celester McKinney and Brian Betts were convicted. Dwayne McKinney was acquitted.
The three defendants lived with their uncle, Carter Betts, who was the prosecution's main witness in this case. At trial, Carter Betts testified that on the night of the murder, he went to sleep, while Celester and Dwayne McKinney continued to watch television. At approximately 3 a.m., Carter Betts heard a number of gunshots, and then heard the front door open and close. He went downstairs to investigate and found the three defendants; a shotgun and rifle lay at the feet of Dwayne and Brian. Carter Betts asked what happened; Celester replied "We shot that Greg," explaining that they suspected Greg of burglarizing Brian's apartment. Celester said that he had gone to talk to Greg and brought him back into the alley behind the house. When Greg denied the burglary, Dwayne raised a gun to shoot him, but the gun jammed. As Greg ran away, Dwayne and Brian shot him.
The prosecution also called Jimmy Spencer, Jr., the victim's uncle, who testified that a few minutes before the gunshots, Greg left Spencer's house, telling him that "Les" wanted to talk to him and he was leaving to go see what "Les" wanted. Spencer thought that Greg was referring to Celester McKinney.
Carter Betts further testified that in his initial statement to the police, he had stated that the three defendants were in bed asleep at the time the shots were fired. Later, when questioned at the police station, he changed his story, deciding to tell the truth out of fear that he would be implicated in the murder. Carter Betts testified that his testimony against his nephews was under duress, and he admitted having signed a letter authored by his sister, the mother of Celester and Dwayne, which stated that he wanted to "discredit" his testimony.
During the closing argument, the prosecutor stated:
He talks about evidence, lack of evidence and conflicts of evidence. Ladies and gentlemen, the evidence is Carter Betts. The evidence is Carter Betts. There is nothing that conflicts Carter Betts. Carter Betts gives you the entire evidence and that's the evidence. . . .
. . . .
Carter Betts, ladies and gentlemen, sat on this witness stand You saw him up here. Did he look nervous, did he look scared? Did he look sad? That's for you to determine. That's the man you saw up there, was he telling you the truth? Is he out to get his nephew? And if he is out to get his nephew, why is he out to get his nephew? If [defense counsel] had a real reason why Carter Betts would lie to you, he would not only have said it, he would have said, well, yeah, maybe he was saving his own skin, that sounds like a motive to me and then move on to everything else. You know what he would have been doing? Pounding on the bar saying, ladies and gentlemen, he's lying because this is why he's turning his nephews in, this is why he's saying he did it. He can't do that because Carter Betts doesn't have a reason. They've since this case has been filed, they've had one job, find out why Carter Betts is lying, one job the entire time, months and months since December 29th, find out and give the jury a reason why Carter's lying. They cannot do it. If they could do it because they have to do it, otherwise you know Carter's telling the truth and you know that Les McKinney is a murderer. They can't do it. If they could have, ladies and gentlemen, you would have heard nothing else from them.
During the jury's deliberations, they sent a note to the trial judge, which stated "Carter Betts statement(s) about the conversation in the basement." The trial judge considered this note ambiguous, and without first conferring with parties and counsel, the judge directed the bailiff to return the note to the jury and ask them to be more specific. The jury responded with a second note, which stated "We want the trial testimony of Carter Betts' conversation in the basement. Also the testimony of Carter Betts preliminary hearing of the conversations in the basement."
At this point, the trial judge called the parties and counsel to open court, advised them of the contents of the jury's first note, his directing the bailiff to return the note for clarification, and the contents of the second note. The trial judge proposed: to read those portions of the direct and cross examinations of Carter Betts that pertained to the conversations in the basement; to advise the jury that there was no transcript of the preliminary hearing admitted as evidence; and to ask the jury if that would answer their question and if there was anything else that they were seeking in this note.
Celester McKinney objected that the jury's first note asked for Betts' "statement" and that they should be read the statement (which was read into evidence by another witness), and not just provided with Betts' testimony, which was just "one side of the story." Over this objection, the trial judge proceeded with his three step procedure, calling the jury into open court. The jury foreman stated that the jury's note was meant to ask for Betts' direct and cross examination testimony, and that there was nothing else that they wanted.
After the jury convicted Celester McKinney, he moved for a new trial on the basis of "newly discovered evidence," Carter Betts' recantation of his trial testimony and allegation that his trial testimony was the product of coercion by the prosecutor. The trial court denied the motion for new trial.
On direct appeal to the Kansas Supreme Court, Mr. McKinney raised the same issues he raises in this petition for writ of habeas corpus. The Kansas Supreme Court affirmed the conviction and denial of the motion for new trial.
STANDARD
Because Mr. McKinney "filed his habeas petition after April 24, 1996, the provisions of the Antiterrorism and Effective Death Penalty Act ("AEDPA") govern this [proceeding]." The AEDPA "`circumscribes a federal habeas court's review of a state-court decision.'" Under 28 U.S.C. § 2254(d), a federal court may not grant habeas relief on any claim adjudicated in state court, unless the adjudication:
Martinez v. Zavaras, 330 F.3d 1259, 1262 (10th Cir. 2003) (citing Lindh v. Murphy, 521 U.S. 320, 326-27, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997)).
Anderson v. Mullin, 327 F.3d 1148, 1152 (10th Cir. 2003) (quoting Lockyer v. Andrade, 538 U.S. 63, 70, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003)).
(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 at the state court proceeding.
A state court's decision is "contrary to" an established federal law if the state court reaches a different result than the Supreme Court would when presented with facts that are ". . . materially indistinguishable from a relevant Supreme Court precedent" or if the state court "applies a rule that contradicts the governing law" set forth in Supreme Court cases. A decision is an "unreasonable application" of clearly established federal law if a "state court identifies the correct governing legal principle from [the Supreme Court's] decisions but unreasonably applies that principle to the facts of [a] prisoner's case." Unreasonable application of facts includes an unreasonable extension of a principle, or an unreasonable refusal to extend a principle to the facts at hand The courts are to employ an objective standard in determining what is unreasonable.
Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000).
Id. at 413.
Id. at 407.
Id. at 409.
Although unreasonable determinations of fact are a second basis for a writ, a state court's determination of a factual issue shall be presumed to be correct. The petitioner has the burden of rebutting this presumption by clear and convincing evidence. "This presumption does not extend to legal determinations or to mixed questions of law and fact." "That is, the `deferential standard of review does not apply if the state court employed the wrong legal standard in deciding the merits of the federal issue.'" "Ultimately, our review of the state court's proceedings is quite limited, as section 2254(d) sets forth a highly deferential standard for evaluating state-court rulings."
Martinez, 330 F.3d at 1262 (explaining that a state court's determination of a factual issue is presumed to be correct and petitioner has burden of rebutting this presumption by clear and convincing evidence); Fields v. Gibson, 277 F.3d 1203, 1221 (10th Cir. 2002).
Martinez, 330 F.3d at 1262 (citing Herrera v. Lemaster, 225 F.3d 1176, 1178-79 (10th Cir. 2000)).
Id. (quoting Cargle v. Mullin, 317 F.3d 1196, 1202 (10th Cir. 2003)).
Anderson, 327 F.3d at 1152 (internal citations omitted).
ANALYSIS
Although Mr. McKinney asserts ten grounds for relief, many are interrelated and can be addressed together rather than separately. The grounds for relief can be organized and described as:
(1) his rights to due process and a fair trial before an impartial jury were violated by the prosecutor's improper closing argument;
(2) his rights to due process, a fair trial and the right of confrontation were violated by the admission of a hearsay statement made by the victim shortly before his death;
(3) his rights to due process and a fair trial were violated by the prosecutor's knowing use of and failure to correct, perjured testimony, which the prosecutor coerced from the witness;
(4) the trial court erred in denying his motion for new trial on the basis of recanted testimony; and
(5) his right to due process and a fair trial were violated by the court's communicating with the jury outside of the defendant's presence seeking clarification of a jury question, and by allowing read back of certain testimony without reading back other testimony.
As set forth below, the Court finds that the state courts' adjudications were neither contrary to nor an unreasonable application of controlling Supreme Court authority. Thus, the Court denies Mr. McKinney's request for a writ of habeas corpus.
Prosecutor's Closing Argument
Allegations of prosecutorial misconduct are mixed questions of law and fact. Generally, a state court conviction will be reversed on the basis of prosecutorial misconduct, only where there has been a denial of due process, because the misconduct rendered the trial fundamentally unfair. When the misconduct effectively deprived the defendant of a specific constitutional right, a habeas claim may be established without a showing that the misconduct rendered the entire trial fundamentally unfair.
Duckett v. Mullin, 306 F.3d 982, 988 (10th Cir. 2002) (citing Fero v. Kerby, 39 F.3d 1462, 1473 (10th Cir. 1994)).
Id. (citing Donnelly v. DeChristoforo, 416 U.S. 637, 643, 94 S.Ct. 1868, 40 L.Ed.2d 431 (1974)).
Id. (citing Mahorney v. Wallman, 917 F.2d 469, 472 (10th Cir. 1990) (internal citation omitted).
Here Mr. McKinney contends that the prosecutor's closing argument improperly shifted the burden of proof to the defendant by commenting on the defendant's failure to come forward with testimony discrediting Carter Betts. Because the prosecutor did not comment on the defendant's failure to testify, there was no implication of the Fifth Amendment, nor any other specific constitutional right. Rather, the challenged comments address the lack of refutation or rebuttal of Carter Betts' testimony. Although this can be viewed as a comment on the defendant's failure to present evidence or call witnesses, it is not improper for a prosecutor to comment that evidence is not contradicted or rebutted, as long as he or she does not create the impression that only the defendant could rebut the evidence. Here, the prosecutor's comments stressed that the case largely depended on the credibility of Carter Betts; that there was no evidence contradicting him or rebutting his credibility; and that his demeanor while testifying gave credence to his testimony. Moreover, the prosecutor's comments were in response to defense counsel's closing argument that Carter Betts was lying. The prosecutor did not misrepresent the evidence, nor the fact that it was uncontradicted. The trial was not rendered fundamentally unfair by these comments that stressed that Carter Betts was credible, uncontradicted, and the key fact witness in the case.
See Griffin v. California, 380 U.S. 609, 613-15, 85 So. Ct. 1229, 14 L.Ed.2d 106 (1965).
See Trice v. Ward, 196 F.3d 1151, 1167 (10th Cir. 1999) (prosecutor may comment on defendant's failure to present evidence or call witnesses); Nguyen v. Reynolds, 131 F.3d 1340, 1358 (10th Cir. 1997) (comments did not clearly point out petitioner's failure to testify or create impression only petitioner could rebut statement).
The state court cited to the clearly established federal law reasonably and applied those principles to the facts in this case, in a thorough and thoughtful analysis. Habeas relief on this basis is not warranted.
Admission of Hearsay Statements by Decedent Victim
Mr. McKinney contends that the trial court's admission of statements made by murder victim Greg Miller violated Mr. McKinney's constitutional right of confrontation. The trial court admitted Greg Miller's statements, made just minutes before his murder, that "Les" wanted to talk to him and that he was leaving to go see what "Les" wanted. These statements were admitted pursuant to K.S.A 2000 Supp. 60-460(l), which allows admission of statements of physical or mental condition, including the declarant's existing state of mind and statements of intent, plan and motive.
Because defendant did not object to admission of this evidence at trial, on appeal, the state court analyzed its admission under the plain error rule, but further analyzed it under the Sixth Amendment standard as well.
"As a general matter, federal habeas corpus relief does not lie to review state law questions about the admissibility of evidence, and federal habeas courts may not interfere with state evidentiary rulings unless the rulings in question rendered the trial so fundamentally unfair as to constitute a denial of federal constitutional rights." Of course, the trial court's compliance with a state statute or rule of evidence does not settle the issue. State and federal rules of evidence may provide guidance, but on habeas review, the critical question is whether the court's hearsay rulings deprived the petitioner of his Sixth Amendment rights under the Confrontation Clause.
Moore v. Marr, 254 F.3d 1235, 1246 (10th Cir. 2001) (internal citation and quotation marks omitted).
Matthews v. Price, 83 F.3d 328, 332 (10th Cir. 1996) (citing Hopkinson v. Shillinger, 866 F.2d 1185, 1200 (10th Cir. 1989), cert. denied, 497 U.S. 1010, 110 S.Ct. 3256, 111 L.Ed.2d 765 (1990) overruling on other grounds recognized by, Davis v. Maynard, 911 F.2d 415, 417 (10th Cir. 1990) United States v. Valenzuela-Bernal, 458 U.S. 858, 867, 102 S.Ct. 3440, 3446, 73 L.Ed.2d 1193 (1982)).
The state court applied the two-part test established in Ohio v. Roberts, to determine whether the admission of Miller's statement violated Mr. McKinney's right to confrontation. Under Roberts, for the statements to be admissible, the witness must be unavailable and the witness's statements must have "adequate indicia of reliability." However, after both the state court's decision and the submission of this Petition, the Supreme Court decided Crawford v. Washington, "which changed the legal landscape for determining whether the admission of certain hearsay statements violates the accused's right to confront witnesses." In Crawford, the Court drew distinctions between testimonial and nontestimonial testimony. It held:
448 U.S. 56, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).
Roberts, 448 U.S. at 66, 100 S.Ct. at 2539.
124 S.Ct. 1354, 158 L.Ed.2d 177 (2004).
Horton v. Allen, 370 F.3d 75, 83 (1st Cir. 2004).
Where nontestimonial hearsay is at issue, it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether. Where testimonial evidence is at issue, however, the Sixth Amendment demands what the common law required: unavailability and a prior opportunity for cross-examination.
Crawford, 124 S.Ct. at 1374.
Thus, the holding abrogated, in part, the prior rule of Ohio v. Roberts that the admission of hearsay did not violate the Confrontation Clause if the declarant was unavailable and the statement fell under a "firmly rooted hearsay exception" or otherwise bore particularized guarantees of trustworthiness.
Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).
The application of Crawford in this case is unclear for "new rules of criminal procedure" do not apply in habeas proceedings unless they fall within either of two exceptions: (1) the new rule places a class of private conduct beyond the power of the state to proscribe, or (2) the rule is a "watershed rule" of criminal procedure, implicating the fundamental fairness and accuracy of the proceeding. This Court however, need not decide the retroactive effect of Crawford to Mr. McKinney's Petition, because as explained below, Crawford does not apply in this instance.
Horton, 370 F.3d at 83 (citing Teague v. Lane, 489 U.S. 288, 310-11, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989)).
The critical distinction drawn by Crawford is between testimonial and nontestimonial statements; when a nontestimonial statement is at issue, Crawford is inapplicable. Instead, Roberts continues to apply, if such statements are entitled to any Confrontation Clause scrutiny at all. The Supreme Court left "for another day any effort to spell out a comprehensive definition of `testimonial.'" It did, however, provide three formulations of the core class of testimonial statements: (1) "ex parte in-court testimony or its functional equivalent — that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine or similar pretrial statements that declarants would reasonably expect to be used prosecutorially;" (2) "extrajudicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions;" and (3) statements "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." The Court noted, that "[w]hatever else the term [testimonial] covers, it applies . . . to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations. These are the modern abuses at which the Confrontation Clause was directed."
Id.
Id.
Id. at 1364.
Id. at 1374.
Miller's statements that "Les" wanted to talk to him and that he was leaving to go see what "Les" wanted is nontestimonial. The statements were not ex parte in-court testimony, contained in formalized documents, nor were they the result of a police interrogation. Instead, they were statements made in a private conversation between Miller and his uncle. Nor were the statements made under circumstances leading an objective person to believe that the statements would be available for use at a later trial. Indeed, no objective person would know that Miller's statement that he was going to see "Les" would subsequently be used against Mr. McKinney in Miller's murder trial.
See Horton, 370 F.3d at 84 (determining that a hearsay statement, admitted under the state of mind exception, that on the day of the murders defendants' accomplice had told a witness that he needed money and that the victim had refused to give him drugs on credit, was nontestimonial).
Because the statements are nontestimonial, the two-prong test established in Roberts applies. For the statement to be admissible under Roberts, the declarant must be unavailable and the statement must fall under a firmly rooted hearsay objection or bare particularized guarantees of trustworthiness. The state court cited to Roberts, and determined that Miller's death rendered him unavailable to testify. The state court also determined that Miller's statements bore an adequate indicia of reliability, citing to clearly established federal law that reliability can be inferred where the evidence falls with a firmly rooted hearsay exception, such as K.S.A. 60-460(l). Moreover, nothing in the record reveals that the declarant's statement concerning his state of mind was colored by motive, design, influence or coercion suggesting a lack of trustworthiness. Habeas relief on this ground is not warranted.
Roberts, 448 U.S. at 66.
Carter Betts' testimony-coerced and perjurious
Mr. McKinney further contends that his right to due process and a fair trial were violated by the prosecutor's knowing offer of perjured testimony by Carter Betts. Mr. McKinney further asserts that Officer Thompson's testimony was inconsistent with his police report, as further evidence that the prosecution knowingly offered perjured testimony. A conviction obtained through the use of perjured testimony would violate due process if the prosecution knowingly solicited or coerced perjured testimony or failed to correct testimony which it knew to be perjured.
See Napue v. Illinois, 360 U.S. 264, 269, 79 S.Ct. 1173, 3 L.Ed.2d 1217 (1959).
In reviewing this type of claim, "the question of error turns not on the witness' knowledge of falsity, but on the government's knowledge." Mr. McKinney has failed to show that Carter Betts' testimony was perjured. All that Mr. McKinney has shown is that Carter Betts later recanted his testimony. Nor has Mr. McKinney shown that Officer Thompson's testimony was perjured.
Graham v. Wilson, 828 F.2d 656, 659 (10th Cir. 1987), cert. denied, 484 U.S. 1069 (1988).
Mr. McKinney has shown only that Officer Thompson's report stated that an eyewitness told him that the shooter ran down the alleyway; while at trial, Thompson testified that the eyewitness told him that the shooter ran into the alleyway between Carter Betts' house and another house. But "[c]ontradictions and changes in a witness's testimony alone . . . do not create an inference, let alone prove, that the prosecution knowingly presented perjured testimony." Moreover, Mr. McKinney has not shown that the prosecution knew that the testimony was false, if in fact it was false.
Tapia v. Tansy, 926 F.2d 1554, 1563 (10th Cir.), cert. denied, 520 U.S. 835 (1991).
In fact, the state court's findings clearly support the conclusion that Betts' and Thompson's testimony was true, and that Betts' recantation was not credible. The state court relied on clearly established law, and reasonably applied that law to these facts. Because Mr. McKinney has failed to present clear and convincing evidence to the contrary, this Court must accept the factual findings of the state court, that the prosecution did not knowingly solicit, coerce, use or rely on perjured testimony. Habeas relief is not warranted on this ground.
No New Trial for Recanted Testimony
Mr. McKinney also contends that he was denied due process and a fair trial when the trial court denied his motion for new trial on the basis of Carter Betts' recanted testimony. But Mr. McKinney's failure to show that Betts' trial testimony was false, precludes relief on this basis. For, when recanted testimony is at issue, "the trial court must first be satisfied that the challenged testimony was actually false." The Kansas Supreme Court accepted the trial court's finding that the challenged testimony was not false. At the trial, Betts testified that his testimony was under duress, admitting that Mr. McKinney's mother had authored a letter for his signature, stating that he wanted to "discredit" his testimony. Yet, at trial, Betts testified, consistent with his interview at the police station, that he found his nephews in possession of two firearms, within minutes after hearing multiple gun shots, and that Mr. McKinney told him that the other two nephews had fired the weapons and shot "Greg." The Kansas Supreme Court further noted that the trial court had "the opportunity to observe Carter's testimony on approximately six occasions during the course of three trials," and was in a better position to judge his demeanor and credibility. As there is no clear evidence contrary to the factual findings of the trial court, this Court must accept the court's finding that Betts' trial testimony was not false, and that his recantation was not credible.
United States v. Page, 828 F.2d 1476, 1478 (10th Cir. 1987).
Trial Court's Procedure and Response to Jury Request
Finally, Mr. McKinney asserts that he was denied due process and a fair trial by the trial court's procedure and response to the jury's request in two notes. He first contends that his constitutional rights were violated when the trial court received a jury note, and sent it back to the jury for clarification, without first conferring with counsel and in the presence of Mr. McKinney. The Kansas Supreme Court found that this was an error, but a harmless error, since there was little if any likelihood that this error changed the results of the trial. The Kansas Supreme Court also recognized that a defendant has a "due process right to be present in his own person whenever his presence has a relation, reasonably substantial, to the fullness of his opportunity to defend against the charge."
Kentucky v. Stincer, 482 U.S. 730, 745, 107 S.Ct. 2658, 96 L.Ed.2d 631 (1987).
But, defendant's absence could not have prejudiced his opportunity to defend. For, as soon as the jury responded with a second clarifying note, the trial court advised counsel and the defendant of the contents of the first note, his direction that the jury clarify the note, and the contents of the jury's second note. At that point the parties had and took the opportunity to present arguments about the meaning and import of the jury's first and second notes. Defense counsel argued that the court should not have sought clarification, and should have responded only to the jury's first note by giving the jury Betts' initial statement to police that his three nephews were in bed at the time the shots were fired outside; or alternatively, the court should have given the jury all of Betts' statements and testimony. Defendant further argued that had the court conferred with the parties before seeking clarification, he would have suggested that the court comply with the jury's request by giving them Betts' "statements," not his testimony.
The court overruled this objection and gave the jury a read back of Betts' testimony concerning the "conversation in the basement." In both notes, the jury had stated they wanted the "conversation in the basement." In the first note the jury asked for Betts' "statement(s)" about the conversation; in the second note, the jury asked for "the trial testimony of Carter Betts' conversation in the basement. Also the testimony of Carter Betts preliminary hearing of the conversation in the basement." The trial court concluded that the jury wanted Betts' testimony from the trial and preliminary hearing; and that when they asked for Betts' "statement(s)" in their first note, they were asking for his testimony in the two proceedings, rather than his statements to police. In open court, after advising the jury that he would provide them with the direct and cross examination trial testimony of Betts concerning the conversation, the trial court asked if there was anything more the jury wanted in connection with this matter. The jury responded no; but they clearly had the opportunity to ask for Betts' out of court statements to police. They did not ask for the statements. Thus, although the trial court erred in not conferring with counsel in seeking clarification of the first note, the jury had ample opportunity, in the second note and in open court, to ask for Betts' out of court statements, if that is what they wanted.
Mr. McKinney further contends that the trial court should not have read back to the jury his trial testimony about the conversation in the basement. But, under Kansas law, the trial court is mandated to read back testimony requested by a jury. And, in the Tenth Circuit, such a decision is left to the sound discretion of the trial court. Habeas relief is not warranted on this ground.
United States v. Tager, 481 F.2d 97, 101 (10th Cir. 1973).
IT IS THEREFORE ORDERED BY THE COURT that the Petition for a Writ of Habeas Corpus (Doc. 1) filed pursuant to 28 U.S.C. § 2254 is DENIED.