Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division.
No. 94-C-823--Larry J. McKinney, Judge.
Before MANION, ROVNER, and EVANS, Circuit Judges.
One should never underestimate the importance of good timing. Had John Mason's ex-wife Patricia been murdered after September 27, 1991, rather than in the fall of 1985, his chances of being a free man today--instead of a guest of the State of Indiana at one of its penal institutions--would be appreciably better. But Mason's timing was bad, as we'll explain in this decision affirming the denial of his federal habeas corpus petition.
On October 15, 1985, the body of forty-three-year-old Patricia Mason was found lying in a pool of blood on the floor of the garage at her home in Lebanon, Indiana. She had been struck with a hammer and shot, repeatedly, in the head. At the time of her death, Patricia's divorce from John, after more than twenty years of marriage, was only seven months old, and she was living with Gerald Lumpkin, a man she had taken up with while her marriage was still, legally at least, intact.
The divorce was not only fresh, it was bitter as well, as the Masons were fighting over things like money and visitation rights. Apparently, jealousy was also in the picture as John had a fellow named James Comer (who had an unusual combination of jobs: a handyman and a private detective) follow Patricia and Lumpkin around to see what they were up to.
John was an instant suspect in Patricia's death. A grand jury looked into the crime in 1986, but no indictments were returned. The killer's trail went cold, but it got hot four years later, in 1990, when police received a tip. To make a long story short, John was eventually charged with hiring a man named John Morgan to kill Patricia and, later in 1987, to kill Lumpkin as well. Separate juries, after trials lasting more than two weeks each, convicted John of complicity in the murder of Patricia and involvement in the plot to kill Lumpkin. He was sentenced to terms of imprisonment totaling 80 years. His convictions were affirmed in separate unpublished decisions by the Indiana Court of Appeals. The Indiana Supreme Court, on separate votes of 4-1 in 1992 and 1993, declined to review the convictions. Mason then filed this habeas petition in the United States District Court for the Southern District of Indiana. The case is before us on appeal from the denial of the petition.
Central to both jury trials, and to this appeal, was evidence presented regarding Morgan, the hit man. Prior to the trial, Morgan gave a tape-recorded statement to the police. In the statement, he recalled, chillingly recalled we should add, how he was hired by John to kill Patricia and her lover, Lumpkin. He admitted that he had in fact committed the murder of Patricia, but that he had not been successful in "getting to" Lumpkin. Morgan's statement, which was loaded with details (a $2,000 down payment for the murder, the crime itself, the disposal of the hammer and gun, and the final $5,000 payment from Mason) was, by far, the strongest arrow in the State's quiver of evidence against Mason.
Several days after obtaining Morgan's statement, the State's case suffered a setback when Morgan changed his story; he said he had no agreement with John about anything and no involvement in the murder of Patricia. The setback to the State's case, however, was not as severe as one might think due to the Indiana rule that is the subject of this appeal.
Although Morgan repudiated his initial statements at each of Mason's trials, they nevertheless came into evidence through the tape recordings and the testimony of officers who had been present when they were given. *fn1 Morgan's initial statements implicating Mason were admitted as substantive evidence under Indiana's "Patterson rule." The rule was set out in Patterson v. State, 263 Ind. 55, 324 N.E.2d 482 (Ind., 1975), when the Indiana Supreme Court held that out-of-court statements were admissible as substantive evidence where the declarant (1) acknowledged having made the out-of-court statement, and (2) was present and available for cross-examination. Patterson, at 57-58, 484-85. Out-of-court statements that satisfied these requirements were not "hearsay" under Indiana law. Indiana felt that proof that the statement had been made, either through a recording, Hennings v. State, 532 N.E.2d 614, 615 (Ind., 1989), or through a declarant's own admission, together with the opportunity for meaningful cross-examination, provided the indicia of reliability the hearsay rule was designed to safeguard. Morgan acknowledged having made the prior statements, and he was present and available for cross-examination at both of Mason's trials. Because the requirements of the Patterson rule were satisfied, Morgan's initial statements were found to be admissible as substantive evidence against Mason. And here's where the question of timing enters the case.
The Lumpkin conspiracy case was tried first, and Mason was sentenced in that case on April 8, 1991. His conviction was on appeal when he went to trial for Patricia's murder in September of 1991.
Morgan's initial statements (via the tape recordings and police testimony) were presented to the jury under the Patterson rule about midway through the trial. On September 26, 1991, just one day before the jury returned guilty verdicts against Mason, the Patterson case was overruled by the Indiana Supreme Court in Modesitt v. State, 578 N.E.2d 649 (Ind., 1991). In Modesitt, Indiana's high court rejected the Patterson rule, adopting instead the text of Federal ...