7th Circuit denies convicted murderer’s habeas petition after admission of absent witness’s prior testimony

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A man convicted of murdering his drug dealer more than a decade ago has again been denied habeas relief after the 7th Circuit Court of Appeals affirmed that the admission of prior testimony from an absent, but key, witness wasn’t done in error.

In 2008, Nathan Berkman owed $2,000 to his cocaine dealer, Olen Hawkins. Berkman arranged to meet Hawkins in a supermarket parking lot, purportedly to pay off his debt, and took his girlfriend Arlene Timmerman’s car.

Once at the parking lot, Berkman got into Hawkins’ car. He then slit his dealer’s throat and took the drugs and money that he had on him.

Berkman told Timmerman what had transpired when he returned home that night, and Timmerman saw Hawkins’ body. Berkman, Timmerman and Tanya Sullivan, who was visiting, then smoked crack cocaine in the basement, according to court records.

The next morning, Berkman informed Timmerman that he had devised a plan to dispose of the body. He drove Hawkins’ car to a field, doused it with gasoline and set it on fire. The car and remains were discovered two months later.

The state charged Berkman with murder and felony murder, and the case proceeded to trial, at which Timmerman testified in person. The jury acquitted Berkman of murder but failed to reach a verdict on the felony murder count.

A second felony murder trial began in August 2011. At the beginning of the fourth day of trial, Timmerman was in the hospital, so the trial court excused the jury and postponed the trial for several days.

Timmerman appeared to testify the following Tuesday. She had testified for several minutes when the prosecuting attorney realized she appeared unwell. When the prosecutor inquired, “Are you okay?” Timmerman responded “No, I’m not.”

Timmerman was then escorted to a back room, where she disclosed that she had been in the hospital for a possible seizure or stroke. She said she felt very nauseous and was “burning up.”

The judge did not believe that it was going to be possible for Timmerman to continue, and both counsel and the court agreed the court could declare a witness unavailable if she was either unable to be present or unable to testify. Timmerman fell into the second category.

Further, the court found that the defense counsel had a full opportunity to cross-examine Timmerman in the first trial. Because the opportunity to cross-examine was the crux of the Crawford v. Washington, 541 U.S. 36 (2004), decision, it determined the trial would proceed and a mistrial wouldn’t be granted despite a request by the defense.

Instead, Timmerman’s testimony from the prior trial was read aloud to the jury.

The jury subsequently found Berkman guilty as charged.

Berkman appealed to the Court of Appeals of Indiana, where he argued that the trial court had erred in failing to grant a mistrial and in admitting Timmerman’s prior testimony. The COA wasn’t convinced and affirmed his conviction and sentence to 60 years executed.

Berkman then filed for post-conviction relief, which was denied after an evidentiary hearing. The Court of Appeals affirmed, and the Indiana Supreme Court denied transfer.

He next filed a federal habeas petition in which he raised, among other challenges, a claim that his Sixth Amendment right to confront witnesses was violated by the admission of Timmerman’s prior testimony.

In rejecting that argument, the district court said the state trial court could “have waited additional time before declaring Ms. Timmerman unavailable.” But that “likely would have resulted in ‘serious disruption to the court calendar and the schedules of jurors, witnesses, and lawyers. By the same token, the judge might have been reluctant to further delay the trial indefinitely, or declare another mistrial, in hopes that Ms. Timmerman would recover enough to testify.’”

Moreover, the district court noted Berkman’s counsel had an opportunity to cross-examine Timmerman in the first trial. And even if there had been a confrontation clause violation, the error did not result in prejudice.

Appealing to the 7th Circuit, Berkman contended the Court of Appeals of Indiana’s decision was contrary to, or unreasonably applied, Crawford in three ways.

The 7th Circuit found none of the contentions persuasive.

First, according to Berkman, Crawford imposes a continuing duty on the trial court to evaluate a witness’s availability. But 7th Circuit Senior Judge Kenneth Ripple wrote that Berkman failed to come forward with any clearly established Supreme Court precedent that has imposed such a duty on the trial court.

Berkman also maintained the state appellate court ran afoul of Crawford because it “did not address the state’s burden in proving that Timmerman was unavailable.”

Ripple again denied Berkman’s argument, stating all parties agreed Timmerman couldn’t testify.

“… (D)efense counsel even acknowledged on the record that ‘we’ve got a witness who’s physically unable to testify today.’ Thus, given this consensus as to Timmerman’s status, there was no reason for either the state trial court or the state appellate court to address the prosecution’s burden of proof,” Ripple wrote.

Finally, Berkman argued the state appellate court’s application of Crawford was unreasonable because it only evaluated whether the trial court had “abuse[d] its discretion in finding that Timmerman was unavailable” instead of applying a de novo standard of review.

“In response to the parties’ arguments, the Court of Appeals of Indiana addressed the issue of unavailability according to Indiana Rule of Evidence 804(a)(4) and employed the standard attendant to a determination of admissibility under the Indiana Rules of Evidence,” Ripple wrote. “However, regarding the ultimate question of whether Mr. Berkman’s right to confront witnesses under the federal constitution was violated, the state appellate court both drew upon the Crawford standard and conducted its own review.

“… Because the Supreme Court has articulated neither a substantive standard governing unavailability arising from a witness’s illness, nor a standard of review governing a trial court’s determination of unavailability, we cannot conclude that the state appellate court’s decision was unreasonable,” the opinion concluded.

The case is Nathan S. Berkman v. Frank Vanihel, 21-1567.

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