Opinion
CIVIL ACTION No. 01-3002-CM
July 22, 2003
MEMORANDUM AND ORDER
Petitioner was convicted of aggravated kidnapping, aggravated assault, aggravated battery, and criminal possession of a firearm in the District Court of Sedgwick County, Kansas. On direct appeal, the Kansas Court of Appeals affirmed petitioner's conviction. Petitioner filed a petition for review with the Kansas Supreme Court, which was denied. This matter comes before the court on petitioner's Writ of Habeas Corpus (Doc. 1).
I. Standard of Review
Petitioner's application for habeas relief is governed by the habeas statute as amended by the Antiterrorism and Effective Death Penalty Act (AEDPA), 28 U.S.C. § 2254. Williams v. Taylor, 529 U.S. 362, 402 (2000). The Act "places a new constraint on the power of a federal habeas court to grant a state prisoner's application for a writ of habeas corpus with respect to claims adjudicated on the merits in state court." Id. at 412. Under the amended version of 28 U.S.C. § 2254(d)(1), a petitioner is entitled to federal habeas relief only if he can establish that the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(1), (2). Under § 2254(d)(1), a federal court may grant a writ of habeas corpus only if the state court reached a conclusion opposite to that reached by the Supreme Court on a question of law, decided the case differently than the Supreme Court has decided a case with a materially indistinguishable set of facts, or unreasonably applied the governing legal principle to the facts of the petitioner's case. Williams, 529 U.S. at 412-13.
II. Facts
On April 16, 1997, Candice Berry was beaten with a dowel rod and then forced to an upstairs bathroom where she was thrown into a bathtub filled with a mixture of water, bleach, and salt. After further attack, Ms. Berry escaped and drove away. Shortly thereafter, a police officer stopped Ms. Berry for speeding. At that time, Ms. Berry told the officer that Vincent Currie, Ms. Berry's boyfriend at the time and petitioner in this action, was the person who inflicted injury upon her. Ms. Berry also later told this to a friend, a paramedic, a hospital social worker, and a detective. The police located petitioner at Ms. Berry's house soon after she identified him as the attacker. On the basis of Ms. Berry's allegations, police officers arrested petitioner and charged him with aggravated kidnapping, aggravated assault, aggravated battery, and criminal possession of a firearm.
Shortly before the preliminary hearing, Ms. Berry recanted her story. Ms. Berry told a detective that a woman named Chantell Smith had beaten her because of Ms. Smith's jealousy over Ms. Berry and petitioner's relationship. Ms. Berry refused to provide any further information. Detectives were unable to locate anyone by the name of Chantell Smith. Ms. Berry refused to testify at the preliminary hearing.
Prior to trial, the State filed a motion to admit Ms. Berry's hearsay statements. The State believed Ms. Berry would continue to refuse to testify. Since Ms. Berry would be unavailable, the State contended, Ms. Berry's hearsay statements could be admitted under Kan. Stat. Ann. § 60 — 460(d)(3). After a hearing on the matter, the trial court found that Ms. Berry was unavailable, that her prior statements were reliable and that, as a result, Ms. Berry's statements to police officers, hospital personnel, and a friend, that petitioner was the person who had beaten her, were admissible. Upon the advice of her counsel, Ms. Berry invoked the Fifth Amendment and refused to testify at petitioner's trial.
Kan. Stat. Ann. § 60-460(d) provides in pertinent part:
Evidence of a statement which is made other than by a witness while testifying at the hearing, offered to prove the truth of the matter stated, is hearsay evidence and inadmissible except: . . .
(d) Contemporaneous statements and statements admissible on ground of necessity generally. A statement which the judge finds was made . . . (3) if the declarant is unavailable as a witness, by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant's recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort.
The jury convicted petitioner on all charges. The Kansas Court of Appeals affirmed the trial court's ruling on the admissibility of Ms. Berry's hearsay statements. The court held that Ms. Berry was unavailable as a witness and that her statements bore particularized guarantees of trustworthiness.
III. Discussion
Petitioner contends that he was deprived of his constitutional right to confront witnesses testifying against him in violation of the Sixth Amendment. Specifically, petitioner argues that Ms. Berry's assertion of her Fifth Amendment privilege was inadequate to render her unavailable as a witness. Petitioner further argues that, even if Ms. Berry were unavailable, Ms. Berry's hearsay statements did not meet the constitutional requirement of bearing an adequate indicia of reliability.
The court examines a defendant's claim under the Confrontation Clause de novo. See Miranda v. Cooper, 967 F.2d 392, 401 (10th Cir. 1992). Moreover, although the rules of evidence are helpful in determining whether Confrontation Clause rights are violated, on habeas corpus review the court need not address whether hearsay evidence was properly admitted under state law or whether its admission would have been proper under the Federal Rules of Evidence. Rather, the inquiry is whether the admission of hearsay evidence deprived the defendant of his rights under the Sixth Amendment to confront and cross-examine the witnesses against him. Jennings v. Maynard, 946 F.2d 1502, 1505 (10th Cir. 1991).
In Maryland v. Craig, 497 U.S. 836, 844 (1990), the Supreme Court acknowledged that it has never held that "the Confrontation Clause guarantees criminal defendants the absolute right to a face-to-face meeting with witnesses against them at trial." Rather, the court has "repeatedly held that the Clause permits, where necessary, the admission of certain hearsay statements against a defendant despite the defendant's inability to confront the declarant at trial." Id. at 847-48. For the admission of hearsay evidence to comply with the Sixth Amendment, the witness must be unavailable and the statement must bear "sufficient indicia of reliability." See Ohio v. Roberts, 448 U.S. 56, 65-66 (1980); Jennings, 946 F.2d at 1504-05.
A. Unavailability
The trial court held a pretrial hearing to determine whether Ms. Berry's original statements were admissible. At that hearing, the State proffered the following:
[Ms. Berry] has, at least at the preliminary hearing through her attorney, indicated a refusal to testify. My belief is that whenever the trial date comes about-and I will obviously at the time of trial speak with [Ms. Berry's counsel] again, but I have no reason to believe she would do anything but refuse to testify again.
(Transcript of Pretrial Motions at 8). In response, the trial judge found that "Ms. Berry is unavailable as a witness based on the State's proffer of what has occurred." (Id. at 19). On appeal, the court concluded that, when Ms. Berry recanted her original story, she would have been in violation of Kan. Stat. Ann. § 21-3818, which proscribes the false reporting of a crime and the providing of false information to a police officer. The court held that Ms. Berry correctly invoked her Fifth Amendment rights and that, therefore, the trial court did not err by finding Ms. Berry unavailable as a witness.
Plaintiff argues that the district court failed to inquire why or how Ms. Berry's testimony would incriminate her and that the appellate court made unsupported assumptions that Ms. Berry's refusal to testify related to the recanting of her allegations against the petitioner. In support, petitioner cites Hoffman v. United States, 341 U.S. 479, 486 (1951), which states that the protection against self-incrimination "must be confined to instances where the witness has reasonable cause to apprehend danger from a direct answer" and that a "witness is not exonerated from answering merely because he declares that in so doing he would incriminate himself — his say-so does not of itself establish the hazard of incrimination." The Court continued: "To sustain the privilege, it need only be evident from the implications of the question, in the setting in which it is asked, that a responsive answer to the question or an explanation of why it cannot be answered might be dangerous because injurious disclosure could result. The trial judge in appraising the claim must be governed as much by his personal perception of the peculiarities of the case as by the facts actually in evidence." Id. (internal quotations omitted). Petitioner in this case contends that the trial court should have, at the very least, ascertained a list of questions the State was planning to ask to determine if those questions could lead to incriminating responses.
Hoffman did not involve a determination of whether a witness is considered unavailable. Rather, Hoffman concerned a witness who had been convicted of criminal contempt for refusing to answer questions asked by a federal grand jury. Specifically, the witness refused to answer questions about his present occupation, when he had last seen a certain person, and where that person was at the present time. The Supreme Court reasoned that, in order to justify finding a witness guilty of contempt for refusing to answer a question, it must be "perfectly clear, from a careful consideration of all the circumstances in the case, that the witness is mistaken, and that the answers cannot possibly have such tendency to incriminate." Id. at 488.
This court does not believe Hoffman requires a court to conduct the same level of inquiry in the circumstance where a witness's availability must be determined. In other words, the level of inquiry required to find a witness guilty of criminal contempt is higher than that required to conclude that a witness is unavailable to testify. Numerous courts have found a witness unavailable upon the word of that witness's attorney. See, e.g., United States v. Centracchio, 265 F.3d 518, 523 (7th Cir. 2001) (finding witness unavailable on the basis that witness's attorney stated that witness would invoke privilege); United States v. Flores, 985 F.2d 770, 774 n. 9 (5th Cir. 1993) (same); United States v. Muyet, 958 F. Supp. 136, 140 (S.D.N.Y, 1997) (same). Moreover, in United States v. Williams, 927 F.2d 95, 99 (2d Cir. 1991), the court held that a witness need not be brought into court to assert the privilege and that the court can rely on the government's assertion that the declarant's attorney stated the declarant would invoke the privilege. Finally, the court turns to the language set forth in Roach v. National Transportation Safety Board, 804 F.2d 1147 (10th Cir. 1986). In Roach, the Tenth Circuit stated, "Unless the danger of self-incrimination is readily apparent the burden of showing such danger exists rests with the claimant of the privilege." 804 F.2d at 1151-52 (citing Ueckert v. Comm'r of Internal Revenue, 721 F.2d 248, 250 (8th Cir. 1983)).
In the case at hand, the State asserted that Ms. Berry had indicated, through her attorney, that she was invoking the privilege. In addition, Ms. Berry previously had given false information and had filed a false police report. Thus, Ms. Berry had reasonable cause to apprehend danger from a answering questions about the incident, and this danger was of self-incrimination was readily apparent. Accordingly, the level of inquiry conducted by the trial court did not violate petitioner's constitutional rights-there existed a sufficient basis to conclude that Ms. Berry was unavailable to testify.
B. Reliability
Pursuant to the Supreme Court's decision in Roberts:
[O]nce a witness is shown to be unavailable, the witness' statement is admissible only if it bears adequate indicia of reliability. Reliability can be inferred where the evidence falls within a firmly rooted hearsay exception. If the evidence does not fall within a firmly rooted hearsay exception, the evidence must be excluded absent a showing of particularized guarantees of trustworthiness.448 U.S. at 65-66. Petitioner argues that Ms. Berry's statements do not fall within a firmly rooted hearsay exception, nor do Ms. Berry's statements possess adequate guarantees of trustworthiness.
After finding Ms. Berry unavailable, the trial court admitted Ms. Berry's hearsay statements under the contemporaneous statement exception to the hearsay rule, Kan. Stat. Ann. § 60 — 460(d)(3). As set forth above, if a trial court finds a declarant unavailable, § 60-460(d)(3) excepts from those hearsay statements "by the declarant at a time when the matter had been recently perceived by the declarant and while the declarant's recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort." The Kansas Supreme Court has held that § 60-460(d)(3) is not a firmly rooted hearsay exception. See State v. Bailey, 263 Kan. 685, 694, 952 P.2d 1289 (1998). Thus, the court turns to whether Ms. Berry's hearsay statements show particularized guarantees of trustworthiness.
Particularized guarantees of trustworthiness required for admission under the Confrontation Clause must "be drawn from the totality of circumstances that surround the making of the statement and that render the declarant particularly worthy of belief." Idaho v. Wright, 497 U.S. 805, 820 (1990). The court determines that such particularized guarantees of trustworthiness are present in this case.
Within a very short time after the incident, Ms. Berry gave consistent accounts of the perpetrator to several different people. First, when Ms. Berry fled the scene in petitioner's car, she was stopped for speeding. The police officer noticed that Ms. Berry was covered in blood. Ms. Berry told the police officer that the petitioner had beat her. Ms. Berry also told the officer that petitioner would likely be driving Ms. Berry's Mercury Cougar and that he might have Ms. Berry's eight-year old brother with him, both of which turned out to be true. Also, at some point during the incident, Ms. Berry had telephoned a friend, Emad Mekhail, and told him, "He hit me." Then, when paramedics arrived at the scene to tend to Ms. Berry's injuries, Ms. Berry told paramedic Jim Brozovich that her boyfriend had beaten her and forced her into a Clorox solution bath. Ms. Berry was immediately hospitalized and, that very morning, Ms. Berry told social worker Nancy Gividen that her ex-boyfriend had assaulted her. Almost twenty-four hours after the incident occurred, Ms. Berry told detective Sara Morris that petitioner had beaten her.
Looking at the totality of the circumstances at the time Ms. Berry made these statements, the court concludes that Ms. Berry's statements bear sufficient indicia of reliability to pass constitutional muster. Almost contemporaneous with the incident, and shortly thereafter, Ms. Berry told several different people that petitioner was the person who had beaten her. This proximity in time, and the consistency of Ms. Berry's story to several different individuals, render Ms. Berry's statements worthy of belief. The court notes that it wasn't until several weeks later, after legal action was initiated against her boyfriend, that Ms. Berry changed her story to say that a woman had beaten her. The court notes that the State presented evidence that Ms. Berry had recanted her story.
The court concludes that petitioner was not deprived of his Sixth Amendment right to confront witnesses. Ms. Berry was correctly declared an unavailable witness, and Ms. Berry's statements possessed the requisite guarantee of trustworthiness. The state court's decision was neither contrary to, nor an unreasonable application of, clearly established federal law.
IT IS THEREFORE ORDERED that petitioner's Writ of Habeas Corpus (Doc. 1) is denied.