Appeal from the United States District Court for the Eastern District of Wisconsin, No. 83 C 908 - Terence T. Evans, Judge.
Bauer, Coffey, Circuit Judges, and Brown, Senior District Judge.*fn*
The petitioner, Allerd Sharlow, appeals from a decision of the district court denying his petition for a writ of habeas corpus. Sharlow contends that the Wisconsin trial court denied him his Sixth Amendment right of compulsory process guaranteed by the Fourteenth Amendment of the United States Constitution when the trial court excluded from evidence allegedly exculpatory hearsay statements of two defense witnesses. We affirm.
The facts relating to the conviction of the petition Sharlow for first-degree murder are summarized in State v. Sharlow, 110 Wis.2d 226, 327 N.W.2d 692 (1983), and are presumed correct unless not "fairly supported by the record." 28 U.S.C. § 2254(d)(8). The petitioner does not challenge the following factual narrative contained in the opinion of the Wisconsin Supreme Court:
"On the night of May 1, 1972, Thomas Blanchette and Jerry Kruschke were at Sally's Tavern in the city of Milwaukee. The victim, Edwin Harry Frahm, later joined them at the bar and the three left Sally's, inviting the bartender, Randall Lydolph, to meet them at the Driftwood Tavern for a drink. After closing Sally's, Lydolph went to the Driftwood. When Lydolph arrived at the Driftwood, he did not notice whether Sharlow was with Blanchette, Kruschke and Frahm. At Sharlow's trial, Lydolph testified that he overheard a conversation in the men's room between Sharlow and Blanchette in which Blanchette stated, 'I'm going to get this little fink,' referring to Frahm. Sharlow said, 'Let me do it; I want him,' and Blanchette replied, 'No, he's mine.' After Blanchette and Sharlow came out of the men's room, the two stood and talked for 'about two minutes.' Lydolph also saw Kruschke leave the Driftwood 'about three times.' Each time Kruschke returned, he engaged in a conversation with Blanchette. Lydolph did not remember where Sharlow was at this time.
"Kruschke, who had been granted immunity, testified that he had left the tavern to go back to the apartment he shared with Blanchette and get Blanchette's revolver. He came back because he couldn't get into the apartment. Finally, Arthur McConkey, a neighbor, gave the gun to Kruschke. Kruschke gave the revolver to Blanchette in the men's room at the Driftwood. This occurred before Sharlow's conversation with Blanchette in the men's room.
"Lydolph saw a group of four or five people, which included at least Kruschke and Frahm, leave the tavern together. He observed them drive off in a Corvair. Kruschke testified that he, Blanchette, Frahm and Sharlow left the Driftwood, driving off in Sharlow's Corvair. Kruschke was driving, at Blanchette's request; Frahm was in the front passenger seat; and Blanchette and Sharlow were in the rear seat. Sharlow was seated behind Frahm, and Blanchette was behind the driver. Kruschke testified that he heard a shot ring out and saw Frahm slump in the seat. Kruschke immediately looked in the rearview mirror and saw Sharlow holding the gun. At the same time, Sharlow was asking Blanchette if Sharlow would give Kruschke 'a couple.' Blanchette replied, 'Leave him alone; he's all right.' Blanchette then told Sharlow, 'Give him [Frahm] another one.' After more shots were fired, Kruschke saw Sharlow hand the revolver to Blanchette. Blanchette then directed Kruschke to drive to the spot where Frahm's body was found. Kruschke testified that Blanchette and Sharlow dragged the body to a creek, where they disposed of it.
"Two days later, Frahm's body was discovered in a creek in New Berlin. A spent red cartridge and red spots were found on a nearby driveway. An autopsy showed that the victim had been shot in the head five times.
"At the trial, the pathologist testified that at least two of the bullets were fired at very close range -- one to five inches. All of the wound trajectories angled downward and to the right.
"Codefendant Blanchette's trial was severed from Sharlow's. At Sharlow's trial, the defense called Blanchette as a witness; however, Blanchette invoked his Fifth Amendment privilege.
"The defense then proffered the testimony of Sharon Henne and James McNeal. If permitted to testify, Henne would have testified that Blanchette told her that 'he was the one that had shot this person six times in the head,' and that on another occasion, Blanchette asked her 'if I would believe him if he told me that he had not actually done the shooting but that Al [Sharlow] did and he wasn't going to "sit" any more for something he didn't do.' She also would have stated that she had known Blanchette for three months and had seen him daily in that period. If permitted to testify, McNeal would have testified that he shared a jail cell with Blanchette and that Blanchette told him [more than one month after the crime] that while in the car, he solicited Sharlow to participate in the murder; that Sharlow refused and grabbed Blanchette's arm and struggled with him in an attempt to ...