6th Cir. (Ky): Fulcher v. Motley (WD Louisville; 4/18/2006)

Fulcher v. Motley
CRIMINAL – Sixth Amendment Confrontation Clause and statements of girlfriend now wife
Western District of Kentucky at Louisville

COOK, Circuit Judge. Elem Ray Fulcher, currently serving a life sentence for murder, burglary, and robbery, appeals the denial of his petition for a writ of habeas corpus. The evidence against Fulcher included statements from a police station interview with his then girlfriend, Patricia Sue Ash, taped soon after the crime. The couple later married; Ash invoked marital privilege under Kentucky law and was thus unavailable for cross-examination at Fulcher’s trial. Fulcher contends that the admission of Ash’s statements violated his rights under the Sixth Amendment’s Confrontation Clause, according to both the clearly established law at the time and the later case of Crawford v. Washington, 541 U.S. 36 (2004), which he argues should apply retroactively. We find that the admission of Ash’s statements did violate Fulcher’s clearly established rights and that the error was not harmless. We thus REVERSE and REMAND to the district court for entry of the writ.

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