Opinion
CV-01-2099-PHX-NVW (JI).
September 23, 2005
REPORT RECOMMENDATION On Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254
I. MATTER UNDER CONSIDERATION
Petitioner, presently incarcerated in the Arizona State Prison Complex at Florence, Arizona, filed a first amended Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on May 23, 2005 (#56). On June 28, 2005 Respondents filed their Answer (#58), incorporating by reference Exhibits A to O attached to their response (#8) to the original petition. Petitioner has not filed a reply.
The Petitioner's Petition is now ripe for consideration. Accordingly, the undersigned makes the following proposed findings of fact, report, and recommendation pursuant to Rule 8(b), Rules Governing Section 2254 Cases, Rule 72(b), Federal Rules of Civil Procedure, 28 U.S.C. § 636(b) and Rule 72.2(a)(2), Local Rules of Civil Procedure.
II. RELEVANT FACTUAL PROCEDURAL BACKGROUND
A. FACTUAL BACKGROUND
In denying Petitioner's direct appeal, the Arizona Court of Appeals summarized the factual background of this case as follows:
On May 7, 1997, the victim was walking down 40th Street in south Phoenix. Defendant, an acquaintance of hers, approached her from behind and dragged her to a nearby Texaco gas station. Defendant held the victim down with his left hand while grabbing one of the pumps with his right hand. He held the pump over her head and squeezed the handle. After dousing her with gas, defendant pulled a cigarette lighter and "flicked it, trying to get it to light." During this time, the woman was screaming and struggling with defendant. Two other men ran toward defendant, telling him to release the woman. He released her and ran toward the two men. The woman ran toward the street. Defendant then turned around and began to chase after the woman. He caught up to her in the middle of the street and grabbed her. While they were struggling, several police officers arrived and apprehended defendant.
(Exhibit I, Memorandum Decision at 2.) Although the victim spoke with police at the scene, she was never subsequently located, and did not appear at trial. (Exhibit S, R.T. 2/2/98 at 6, 19.)
Exhibits A to O to the original Answer (#8) and Exhibits U to AA to the amended Answer (#58) are referenced hereinafter as "Exhibit ___." Exhibits A to O were incorporated by reference in the amended Answer. (#8 at 2, n. 1) The Amended Answer references the attachment of "Exhibits P through V." However, only Exhibits U through AA were attached, or referenced in the amended Answer.
B. PROCEEDINGS AT TRIAL
Defendant was charged with one count of aggravated assault and one count of kidnapping. (Exhibit I, Memorandum Decision at 2-3.) At trial, the prosecution presented testimony from Donald Surenkamp that he saw Petitioner hitting and restraining the victim near the gas pumps at a Texaco Star Mart, and he saw the victim grab from Petitioner something that looked like a cigarette lighter and throw it across the parking lot. (Exhibit B.R.T. 2/2/98 at 30-38.) The prosecution presented testimony from Kevin Garrett that he arrived at the Star Mart with Mr. Surekamp and saw the Petitioner and victim fighting, with Petitioner straddling the victim, holding her on the ground and holding something in his hand that looked like a lighter and was, giving off sparks. ( Id. at 67-76.) Officer Wals testified that upon responding to an emergency call to the Star Mart he saw Petitioner grab the victim in a chokehold and drag her towards the gas pumps. ( Id. at 97-112.)
Ruth Burrup, the assistant manager at the Star Mart, testified that she saw Petitioner removing handles from a number of gas pumps, squeezing the handles, and then laying them on the ground. She became concerned that Petitioner was trying to burn the station, so she called 911. When she went outside, she saw Petitioner wrestle the victim to the ground, grab a gas pump handle from the ground and squeeze it, trying to put gas on her. Then she saw Petitioner spark a lighter. (Exhibit A, R.T. 2/3/98 at 5-18.)
Officers John Syzmanski and Mark Christensen testified that upon responding to the Star Mart, they saw Petitioner pulling the victim from the street in a choke hold. ( Id. at 44, 59-61.)
By the time of trial, the victim had disappeared, and thus did not testify. (Exhibit A, R.T. 2/3/98 at 84.) However, Officer Christensen testified that at the scene, while being held by the Petitioner the victim said "Let me go." ( Id. at 61.) The Officer further testified that she gave him her name. ( Id. at 67.) In addition, he testified that he questioned her about the events:
Q. Now, you said you tried to calm her down. Were you able to calm her down?
A. She was still very excited when I spoke to her about what had occurred.
Q. By the end of your conversation, had she calmed down a little bit?
A. She had started to calm down, yes, sir.
Q. What did she tell you?
MR. BURNS: Objection. Hearsay.
THE COURT: Overruled. I believe the exception has been established.
THE WITNESS: She told me that she had been walking northbound on 40th Street, was on the sidewalk. She was approached from behind by the defendant. He grabbed her by her hair and dragged her to the Texaco parking lot. At that time, he pulled the gas pump off the deal and tried to put gas on her.
BY MR. DION:
Q. Did she indicate if she had known the defendant before?
A. Yes. She told me that she had known him for, I believe, approximately four weeks.
Q. Did she say if any gasoline fell on her?
A. I am not sure if she told me any came out of the pump or not. She indicated that's what he was attempting to do.
Q. I can show you your report — or the report. I will ask you again. Did she say any gas got on her?
A. She said, a small amount or a small quantity of gasoline was poured on her.
Q. What did she say after that? What did she say?
A. She said the defendant asked her, "Do you want to die?" And she said, "No, I don't."
MR. BURNS: Objection. Foundation.
THE COURT: What foundation do you want?
MR. BURNS: Your Honor, I believe this comes into hearsay. I object to the foundation being laid as to that, as well as to reliability.
THE COURT: Overruled. You may continue.
BY MR. DION:
Q. Again, what did he say?
A. He asked her, "Do you want to die?" And she said, "No, I don't want to die."
* * *
Q. Did she tell you if she ran into the roadway or anything like that?
A. The next thing she indicated to me was that two gentlemen intervened. One had an axe handle.
Q. And then what happened?
A. She said the defendant started to chase the two gentlemen and tried to intervene.
Q. And she just ran away at that point?
A. Right. She got up and ran and that's when the police arrived.
( Id. at 67-70.) In addition, Ruth Burrup testified that in the middle of the fight, the victim yelled "Help. Call 911. Help me. Help me." (Exhibit A, R.T. 2/3/98 at 11.) She also testified she heard the victim scream, "Help. He is going to burn me. He is going to burn me." ( Id. at 14.) After the police arrived, she spoke with the victim who said "he was going to kill her." ( Id. at 21.)
At the conclusion of the jury trial, Petitioner was convicted on the kidnapping charge and on a lesser included offense of misdemeanor assault. He was sentenced to six months on the assault conviction and a concurrent mitigated term of fourteen years on the kidnapping conviction. (Exhibit I, Memorandum Decision at 2-3.)
C. PROCEEDINGS ON DIRECT APPEAL
Petitioner filed a timely direct appeal with the Arizona Court of Appeals. His counsel was unable to find an appealable issue, and filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967) and related state authorities. (Exhibit I, Memorandum Decision at 1.) Petitioner filed a supplemental brief raising the following issues:
1. The trial court violated his "speedy trial rights." (Exhibit H, Supplemental Brief at 3, 4-6.)
2. The trial court made improper comments during voir dire, that were an improper comment on the evidence, shifted the burden of proof to Petitioner, and vouched for Petitioner's guilt. ( Id. at 3, 6-7.)
3. The trial court improperly summarily dismissed a juror. ( Id. at 4, 7-8.)
4. The trial court erred in applying the "excited utterance" exception to the prosecution witness' testimony about the victim's statements. ( Id. at 4, 8-13.)
5. The trial court erred in allowing hearsay evidence. ( Id. at 4, 13.)
6. The trial court erred in refusing to give a requested " Willits" instruction. ( Id. at 4, 13-14.)
The Arizona Court of Appeals analyzed and rejected Petitioner's speedy trial claim, and then summarily rejected the remainder of Petitioner's claims. (Exhibit I, Memorandum Decision at 3-4.) In addition, the court "searched the entire record for reversible error" and found none. ( Id.) Accordingly, the conviction and sentences were affirmed. ( Id. at 4.)
Petitioner filed a Petition for Review with the Arizona Supreme Court which was summarily denied on October 14, 1999. (Exhibit J, Order 10/18/99.)
D. PROCEEDINGS ON POST-CONVICTION RELIEF
On November 10, 1999, Petitioner filed a Notice of Post Conviction Relief. (Exhibit K, PCR Notice.) Counsel was appointed, and on June 28, 2000, counsel filed a Notice of Completion of Review, indicating an inability to find a viable claim. (Exhibit L.) Petitioner subsequently filed a pro se Petition asserting: (1) ineffective assistance of counsel, (2) denial of right to confront the victim, (3) improper comments by the court to the jury pool, (4) and improper admission of hearsay testimony. (Exhibits M and AA.) On December 26, 2000, the trial court summarily dismissed the PCR petition, explicitly adopting the prosecution's arguments on most of Petitioner's claims. (Exhibit O, Minute Entry 12/26/00.)
Petitioner next filed a Petition for Review by the Arizona Court of Appeals. (Exhibit P.) That Petition for Review was summarily denied. (Exhibit Q.) Petitioner then sought review by the Arizona Supreme Court, and was again summarily denied review on September 13, 2001. (Exhibit R.)
E. ORIGINAL FEDERAL HABEAS PETITION
Petitioner filed his original federal Petition for Writ of Habeas Corpus on October 29, 2001 (#1). That original Petition asserted the following four grounds for relief:
1. The sentence imposed exceeded the statutory maximum because the jury did not find aggravating factors, resulting in a violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). (Petition, #1 at 5.)
2. Petitioner was precluded from confronting the victim, and trial counsel was ineffective for failing to raise this issue. ( Id. at 6.)
3. Petitioner is factually innocent, and failure to call the victim to so testify was a violation of the 14th Amendment. ( Id. at 7.)
4. The trial court's failure to give a "missing witness instruction" violated Petitioner's rights under the Sixth and Fourteenth Amendments. ( Id. at 8.)
Consideration of the original Petition was stayed to allow Petitioner an opportunity to exhaust his state remedies on a newly discovered evidence claim. (#10, 27, and 28.)
F. SUBSEQUENT STATE PCR PROCEEDINGS
Petitioner filed a second state PCR Notice on December 9, 2002, asserting that Petitioner had newly discovered evidence that the victim had been intentionally made unavailable at trial because she would have been subject to impeachment for giving the police a fake identity. (Exhibit U.) That petition was summarily dismissed on January 14, 2003. (Exhibit V.)
On June 27, 2003, Petitioner filed a third Notice of Post-Conviction Relief, asserting the same claim of newly discovered evidence, but this time presenting a report of a private investigator showing that the victim had provided the police with a false social security number. (Exhibit W.) This petition was also summarily denied. (Exhibit X.) Petitioner filed a petition for review by the Arizona Court of Appeals, which was denied by a "post-card denial" on August 19, 2004. (Exhibit Y.) Petitioner then sought review by the Arizona Supreme Court, which was also denied by a "post-card denial" on March 16, 2005. (Exhibit Z.) G. CURRENT FEDERAL HABEAS PETITION
On April 4, 2005, the stay of these proceedings was terminated. (Order, #51.) On May 23, 2006, Petitioner filed his First Amended Petition (#56), asserting the following grounds for relief:
1. The sentence imposed exceeded the statutory maximum because the jury did not find aggravating factors, resulting in a violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). (Amended Petition, #56 at 5.)
2. Petitioner was precluded from confronting the victim, and trial counsel was ineffective for failing to raise this issue. ( Id. at 6.)
3. The admission of hearsay statements by the victim violated Petitioner's confrontation rights. ( Id. at 7.)
4. The kidnapping conviction was based upon insufficient evidence, in violation of the 14th Amendment. ( Id. at 8.)
Respondents filed an Answer to the amended petition on June 28, 2005, conceding that Petitioner had properly exhausted his state remedies on each of the foregoing claims. (Answer, #58 at 9-10.) Respondents argue that the Petition is without merit, asserting that:
1. Claim One is without merit because: (a) the "aggravating factors" which Petitioner argues the jury was required to find were simply prior convictions, which are specifically excluded from Apprendi; (b) Apprendi may not be retroactively applied on habeas under Teague v. Lane, 489 U.S. 288 (1989); and (c) any error was harmless because the existence of the prior convictions is uncontested. ( Id. at 14-17.)
2. Claim Two is without merit because: (a) there is no constitutional right to have a victim testify; and (b) Petitioner has failed to show prejudice. ( Id. at 17-20.)
3. Claim Three is without merit because: (a) the victim's statements were not "testimonial" within the meaning of Crawford v. Washington, 541 U.S. 36 (2004); (b) Crawford cannot be applied retroactively on habeas; (c) Petitioner has failed to show prejudicial error; (d) failure to give a Willits "missing witness" instruction would be a non-cognizable state law claim; and (e) Petitioner has failed to establish the pre-requisites for a due process challenge to the prosecution's failure to preserve exculpatory evidence. ( Id. at 20-27.)
4. Claim Four is without merit because: (a) there was sufficient evidence that Petitioner committed all of the elements of the offense, and (b) any contrary evidence by the victim's recantation would have been incredible. ( Id. at 27-29.)
Respondents also argue that to the extent that Petitioner argues that some additional fact-finding is required for a kidnapping offense, as opposed to the lesser included offense of unlawful imprisonment, the claim is procedurally defaulted and without merit. (Answer, #58 at 16-17.) The Petitioner merely notes "Malone was found guilty of Class (2) kidnapping [sic] as opposed to Class (4) unlawful imprisonment." (#56 at 5.) The undersigned does not read this to make a separate claim, but merely as background on the conviction in support of the Apprendi claim.
Respondents also argue that to the extent that Petitioner argues that some additional fact-finding is required for a kidnapping offense, as opposed to the lesser included offense of unlawful imprisonment, the claim is procedurally defaulted and without merit. (Answer, #58 at 16-17.) The Petitioner merely notes "Malone was found guilty of Class (2) kidnapping [sic] as opposed to Class (4) unlawful imprisonment." (#56 at 5.) The undersigned does not read this to make a separate claim, but merely as background on the conviction in support of the Apprendi claim.
III. APPLICATION OF LAW TO FACTS
A. GROUND ONE — ApprendiIn Ground One, Petitioner argues that his sentence was improperly enhanced beyond the statutory maximum based upon factors found by the Court rather than the jury, in violation of Apprendi v. New Jersey, 530 U.S. 466 (2000). In Apprendi, the Supreme Court held that, with the exception of prior convictions, any fact which increases the maximum possible punishment must be determined by the jury and not a judge. However, Apprendi has no application to Petitioner for two reasons.
First, even assuming Petitioner's sentence violated Apprendi, Petitioner could not rely upon that decision in this habeas proceeding because his conviction became final on October 14, 1999 when the Arizona Supreme Court denied his Petition for Review, and Apprendi was not decided until 2000. "[T]he Apprendi rule is not retroactive" and thus is not applicable on habeas review under the non-retroactivity standards of Teague v. Lane, 489 U.S. 288 (1989). Cooper-Smith v. Palmateer, 397 F.3d 1236, 1246 (9th Cir. 2005). Cf. Schriro v. Summerlin, 542 U.S. 348, ___, 124 S.Ct. 2519, 2526 (2004) (decision in Ring v. Arizona, 536 U.S. 584 (2002), which applied Apprendi to death penalty determinations, announced a new procedural rule that does not apply retroactively to cases already final on direct review).
Second, even if Apprendi applied, it would not provide Petitioner any relief. Petitioner's sentence was enhanced beyond what was authorized by the jury's conviction based solely upon his prior convictions. Petitioner was found guilty of kidnapping. (Exhibit C, Item 68, Verdict.) That conviction was of a Class 2 Felony, which ordinarily carries a sentencing range of 4 to 10 years. See A.R.S. §§ 13-1304(B) and 13-702A. The trial court found, however, that Petitioner had at least two historical non-dangerous prior felony convictions. (Exhibit F, R.T. 4/23/98 at 20.) Accordingly, Petitioner was subject to an enhanced sentencing range of 14 to 28 years. Ariz. Rev. Stat. § 13-604(D). The court sentenced Petitioner to 14 years, the minimum sentence within the authorized range. (Exhibit F, R.T. 4/23/98 at 20.) Thus, Petitioner's sentence complied with the requirements of Apprendi.
Petitioner's Ground One, based upon Apprendi is without merit, and must be denied.
B. GROUND TWO — CONFRONTATION CLAUSE 1. Confrontation Clause Error
In Ground Two, Petitioner complains that he was precluded from confronting the victim at trial, and trial counsel was ineffective for failing to raise this issue. (#56 at 6.) However, Petitioner has pointed to no authority establishing an obligation on the prosecution's part to insure that a victim testifies at trial.
The Confrontation Clause, which applies to the states through its incorporation in the Due Process Clause of the Fourteenth Amendment, see Pointer v. Texas, 380 U.S. 400, 403 (1965), mandates that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. amend. VI. The confrontation clause ensures the reliability of the testimony presented against a criminal defendant. Maryland v. Craig, 497 U.S. 836, 845 (1990).
"The Confrontation Clause provides two types of protections for a criminal defendant: the right physically to face those who testify against him, and the right to conduct cross-examination." Pennsylvania v. Ritchie, 480 U.S. 39, 51 (1987). The right to confrontation may be satisfied absent a face to face confrontation at trial when denial of such right is necessary to further an important public policy and the reliability of the testimony is otherwise assured. Maryland, 497 U.S. at 850. The clause permits, for example, the admission of certain hearsay statements despite the defendant's inability to confront the declarant. Id. at 847-48.
To the extent that Petitioner challenges the admission of hearsay statements by the victim, that issue is squarely addressed in his Ground Three for relief, and will be discussed hereinafter. Thus, the only confrontation clause protection relevant to this claim is Petitioner's right to physically face those who testify against him. Petitioner was not denied that right because the victim did not testify.
Moreover, a confrontation clause violation does not result in automatic reversal, but rather is subject to a harmless-error analysis. Delaware v. Van Arsdall, 475 U.S. 673 (1986). "The importance of the testimony to the case, presence or absence of other evidence corroborating or contradicting the witness, extent of permitted cross-examination, and overall strength of the prosecution's case are among the factors we consider in determining whether the error is harmless." U.S. v. Schoneberg, 396 F.3d 1036, 1044 (9th Cir. 2005).
Petitioner has never proffered any evidence, nor even offered a basis for an inference, that cross-examination of the victim would have produced anything tending to exonerate Petitioner, much less have overcome the overwhelming testimony of the eyewitnesses.
2. Ineffective Assistance of Counsel
Petitioner also argues that he received ineffective assistance of counsel. Petitioner does not identify the nature of the ineffectiveness, but liberally construing his Petition, the undersigned reads it as a claim that counsel failed to argue the confrontation clause issue discussed herein above. Respondents do not address this portion of Petitioner's claim.
Generally, claims of ineffective assistance of counsel are analyzed pursuant to Strickland v. Washington, 466 U.S. 668 (1984). In order to prevail on such a claim, petitioner must show: (1) counsel's representation fell below the objective standard for reasonableness (deficient performance); and (2) there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different (prejudice). Strickland, 466 U.S. at 687-88, 694. Although the petitioner must prove both elements, a court may reject his claim upon finding either that counsel's performance was reasonable or that the claimed error was not prejudicial. Id. at 697.
Deficient Performance — Petitioner has failed to show that counsel's performance was defective. Counsel did challenge, albeit without consistently favorable results, the admission of the hearsay testimony at trial:
Q. Did she say anything to you at that time?
A. [by Ruth Burrup] She said that he was going to kill her.
MR. BURNS: Objection. Hearsay.
THE COURT: Overruled.
(Exhibit A, R.T. 2/3/98 at 21.)
Q. What did she tell you?
MR. BURNS: Objection. Hearsay.
THE COURT: Overruled. I believe the exception has been established.
* * *
Q. What did she say after that? What did she say?
A. [by Officer Christensen] She said the defendant asked her, "do you want to die?" And she said, "No, I don't."
MR. BURNS: Objection. Foundation.
THE COURT: What foundation do you want?
MR. BURNS: Your Honor, I believe this comes into hearsay. I object to the foundation being laid as to that, as well as to reliability.
THE COURT: Overruled. You may continue.
* * *
Q. Okay. Did she tell you what the defendant said about a lighter? Reading from the report, it says that —
MR. BURNS: Same objection as before, Your Honor.
MR. DION: I would say that it's a statement against interest.
THE COURT: Let me see it. Your objection is double hearsay?
MR. BURNS: Yes, Your Honor.
THE COURT: Sustained.
( Id. 67-69.) Counsel further argued the confrontation clause issue at the close of the prosecution's case:
MR. BURNS: Your Honor, I don't mean to interrupt; buy my client is real adamant at this point that I make a motion concerning his right to confrontation being violated under the Sixth Amendment .
He feels he has a right to confront his accuser under the Sixth Amendment. Without having that occur today, by presenting the statement through the officer, he feels his right has been violated. He would ask the Court to dismiss the case or, in the alternative, declare a mistrial.
* * *
THE COURT: Any other response?
MR. BURNS: Your Honor, my client has case authority about his right of confrontation. He has several citations of cases. I can provide the Court a copy of those cases, if the Court would like to research the issue further.
THE COURT: No. I feel comfortable that the defendant's right to confrontation has not been violated under the facts of this case.
( Id. at 83-84.) Petitioner makes no suggestion what additional arguments Counsel should have raised.
As discussed herein, the decision in Crawford v. Washington, 541 U.S. 36 (2004) did significantly change the legal landscape on hearsay. Obviously, counsel did not argue Crawford, which was not decided until long after Petitioner's conviction was final. However, a federal habeas petitioner cannot attack counsel's performance based on some later favorable ruling which counsel failed to anticipate. Sistrunk v. Vaughn, 96 F.3d 666, 671 (3rd Cir. 1996); Honeycutt v. Mahoney, 698 F.2d 213 (4th Cir. 1983); Brunson v. Higgins, 708 F.2d 1353 (8th Cir. 1983); U.S. v. Ardley, 273 F.3d 991 (11th Cir. 2001).
The law pre- Crawford, as it existed at the time of Petitioner's trial and direct appeal permitted excepted hearsay, even if it occurred in a police interrogation. The failure to take futile action can never be deficient performance. See Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996). "The failure to raise a meritless legal argument does not constitute ineffective assistance of counsel." Baumann v. United States, 692 F.2d 565, 572 (9th Cir. 1982).
Not only was Petitioner's hearsay argument meritless, but for the reasons discussed herein above, his argument about requiring the victim to testify is also without merit, and cannot form the foundation of an ineffective assistance claim.
Prejudice — Moreover, to establish prejudice, a petitioner "must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Strickland, 466 U.S. at 694. Even if Petitioner could show that counsel was deficient in adequately challenging the admission of the hearsay, Petitioner has failed to show a reasonable probability that the admission of hearsay testimony on the victim's statements or the failure to have the victim present affected the outcome of the trial. As discussed above, Petitioner has not shown that the victim's live testimony would have been beneficial. Neither, as discussed herein after, has he shown that the hearsay testimony on her statements prejudiced Petitioner.
Accordingly, all of Petitioner's Ground Two is without merit and must be denied.
C. GROUND THREE — HEARSAY TESTIMONY
For his Ground Three for relief, Petitioner argues that the admission of hearsay statements by the victim violated Petitioner's confrontation rights. (Amended Petition, 56 at 7.) Respondents argue that Ground Three is without merit because: (a) the victim's statements were not "testimonial" within the meaning of Crawford v. Washington, 541 U.S. 36 (2004); (b) Crawford cannot be applied retroactively on habeas; (c) Petitioner has failed to show prejudicial error; (d) failure to give a Willits "missing witness" instruction would be a non-cognizable state law claim; and (e) Petitioner has failed to establish the pre-requisites for a due process challenge to the prosecution's failure to preserve exculpatory evidence. (Response, #58 at 20-27.)
Admission of Hearsay — The law under the Confrontation Clause has long permitted the admission of hearsay that fits within recognized exceptions to the general rule excluding hearsay.
In sum, when a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate "indicia of reliability." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.Ohio v. Roberts, 448 U.S. 56, 66 (1980). That permission has never applied, however, to statements made "in-court." Thus, prior "in-court" statements have never been admissible unless the defendant had adequate opportunity to cross-examine the declarant at the earlier "in-court" proceeding. See Crawford, 541 U.S. at 57 (noting development of the rule in Mattox v. United States, 156 U.S. 237 (1895)). In Crawford, the Court drew upon the Confrontation Clause's use of the phrase "witness" to take a significant departure from the longstanding application of the Mattox rule. The Court held that the complete prohibition of hearsay applied not only to "in-court" statements, but to any ex parte "testimonial" statements, including "prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations." Crawford, 541 U.S. at 68.
Petitioner's Confrontation Clause claim based upon hearsay was summarily dispose of by the state courts. See e.g. Exhibit I, Memorandum Decision at 3.) Consequently, this Court's application of the "unreasonable"/"contrary to" standard of review under 28 U.S.C. § 2254(d)(1) is stymied. Consequently, this Court is left to an "independent review of the record," "the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003).
The Ninth Circuit, openly bucking the trend of other circuits, has held that Crawford applies retroactively on habeas review. Bockting v. Bayer, 399 F.3d 1010, 1021 (9th Cir. 2005), amended 408 F.3d 1127, rehearing en banc denied 418 F.3d 1055. Thus, this Court must apply the holding of Crawford to this case.
That does not, however, resolve whether the hearsay admitted in Petitioner's case falls within Crawford's prohibition of hearsay from "police interrogations." The Court explained:
We use the term "interrogation" in its colloquial, rather than any technical legal, sense. Just as various definitions of "testimonial" exist, one can imagine various definitions of "interrogation," and we need not select among them in this case. Sylvia's recorded statement, knowingly given in response to structured police questioning, qualifies under any conceivable definition.Crawford, 541 U.S. at 53, n. 4 (citations omitted). Clearly, the hearsay testimony offered by the civilian store manager, Ruth Burrup, would not qualify as police "interrogation." The questioning by Officer Christensen, however, comes close. The officer's conversation with the victim was "after the incident" and was part of his "job to interview the woman." (Exhibit A, R.T. 2/3/98 at 64.) The victim was "seated . . . on the curb," and although initially "quite upset," the officer "gave her a few minutes" and "asked her to calm down." ( Id. at 65-66.) Indeed, by the end of the conversation, "she had started to calm down." ( Id. at 67.)
Other courts have addressed whether a police conversation with a victim is an "interrogation" within the meaning of Crawford. In Leavitt v. Arave, the Ninth Circuit found no Crawford "interrogation" where a victim had called the police to report a prowler and named who she thought it might be. 383 F.3d 809, 830, n. 22 (9th Cir. 2004). In U.S. v. Bordeaux, 400 F.3d 548, 556 (8th Cir. 2005), the Eighth Circuit applied Crawford to exclude statements made by a sexual abuse victim to a "forensic interviewer." In U.S. v. Luciano, the First Circuit found no "interrogation" where a victim had flagged down a police cruiser to report that a man had pointed a gun at him. 414 F.3d 174, 176 (1st Cir. 2005). Although declining to apply Crawford on non-retroactivity grounds, the Second Circuit in Mungo v. Duncan drew a distinction between statements by a victim while police were in pursuit of his assailants, and those made after the shooters had been apprehended and "made in greater formality with a view to creating a record and proving charges." 393 F.3d 327, 336 n. 9 (2nd Cir. 2004).
The discussion between Christensen and the victim certainly seems closer to the latter discussion in Mungo, rather than the former. Indeed, the Crawford opinion draws contrasts between an "off-hand, overheard remark," 541 U.S. at 51, and a "solemn declaration or affirmation made for the purpose of establishing or proving some fact," id. (quoting Webster, An American Dictionary of the English Language (1828)). In the present case, the victim's curbside conversation with Officer Christensen seems far more akin to the latter than the former. At that time, the Petitioner was in custody, any immediate danger had passed, and it would have been plain to the victim that her statements were to be used to further a prosecution of Petitioner. It is true that the witness in Crawford was in custody and gave a tape recorded statement in a police station. 541 U.S. at 38. However, neither the fact that the victim in the present case was not herself in custody, nor that the conversation was curbside, rather than in a police station, would have obscured the prosecutorial purpose of the questioning. The same risks of concocted accusations or official manipulation were present.
But even assuming that the victim's statements were "testimonial," and thus inadmissible under the Confrontation Clause, Petitioner is not ipso facto entitled to relief. Rather, such errors are subject to "harmless error" analysis. Van Arsdall, 475 U.S. 673. Here, there is no reason to believe that the admission of the victim's statements "substantially influenced the jury's decision." O'Neal v. McAninch, 513 U.S 432, 436-437 (1995).
The fact of Petitioner's assault, and his kidnapping of her was well established by the testimony of three civilian eyewitnesses, Burrup, Surenkamp and Garrett, and three police officer eyewitnesses, Symanski, Christensen, and Wals. Petitioner offered nothing to refute those observations. The only truly disputed fact at trial was whether the Petitioner had attempted to pour gasoline on the victim in an effort to kill or seriously harm her. The victim's out-of-court statements were that Petitioner had. (Exhibit A, R.T. 2/3/98 at 68.) The only other testimony on this was from the store manager, Burrup. (Exhibit T, R.T. 2/3/98 at 39.) If Petitioner had been convicted on the charge of aggravated assault, or if the kidnapping charge had depended upon evidence of such an attempt, then it could not be said that admission of the statements was harmless.
In reality, however, the jury rejected the claim that Petitioner had tried to burn the victim. While the unproven aggravated assault charge required proof of the use of a "deadly weapon or dangerous instrument" (Exhibit C, Item 70-12, Jury Instruction), the charges for which Petitioner was convicted did not. The kidnapping charge only required proof of restraint and "intent to inflict death, physical injury, or place a person in a reasonable fear of immediate physical injury." ( Id. at 70-13). The simple assault charge only required proof that the victim was "in reasonable apprehension of imminent physical injury," or that Petitioner knowingly touched her with "the intent to injure, insult or provoke" her. ( Id. at 70-14.) At sentencing, the prosecution argued:
The State could not prove the fact that the defendant — beyond a reasonable doubt to a jury that the defendant at that point took a gasoline pump off and used a lighter and threatened the victim, mostly because, as the Court knows, the victim is not around.
(Exhibit F., R.T. 4/23/98 at 12.) As a consequence, Petitioner was only convicted of a "misdemeanor assault, and in the process of doing that, restraining the victim, that led to the kidnapping." ( Id. at 9 (defense counsel argument).)
Thus, on the crimes for which Petitioner was convicted, the victim's out-of-court statements were not important to the case, given the other evidence, and overall strength of the prosecution's case on those charges. See Schoneberg, 396 F.3d at 1044. As such, the admission of the statements was harmless, and Petitioner is not entitled to habeas relief.
Missing Witness Instruction — The Amended Petition briefly asserts that a "Willett's missing witness instruction" was required. (#56 at 7.) The term, "missing witness instruction," refers to an instruction that permits a jury to draw an adverse inference from a party's failure to call a witness. See United States v. Carreno, 363 F.3d 883, 888 (9th Cir. 2004), vacated on other grounds, 125 S.Ct. 1000 (2005). In State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964), Arizona authorized a comparable instruction permitting the jury to make an adverse inference where the prosecution had destroyed exculpatory evidence.
Respondents point out that Petitioner fails to meet his burden under 28 U.S.C. § 2254(d)(1) of showing "clearly established Federal law, as determined by the Supreme Court of the United States" mandating such an instruction. (Response, #58 at 26.) The fact that jury instructions are incorrect under state law is not a basis for federal habeas relief. Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). Instructional error will not support a petition for federal habeas relief unless it is shown "not merely that the instruction is undesirable, erroneous, or even `universally condemned,'" but that by itself the instruction "so infected the entire trial that the resulting conviction violates due process." Cupp v. Naughten, 414 U.S. 141, 146-147 (1973).
Even if some due process requirement could be inferred, the Federal courts routinely hold that a "missing witness" instruction is not required unless "from all the circumstances an inference of unfavorable testimony from an absent witness is a natural and reasonable one." U.S. v. Carre no, 363 F.3d 883, 888-89 (9th Cir. 2004). Petitioner offers no basis for an inference that the victim's testimony would have been favorable to him.
Petitioner's Ground Three for relief is without merit and must be denied.
D. GROUND FOUR — INSUFFICIENT EVIDENCE
Finally, construing the petition liberally, Zichko v. Idaho, 247 F.3d 1015 (9th Cir. 2001), Petitioner argues in his Ground Four for Relief that his Due Process rights were violated because there was insufficient evidence to convict him of kidnapping. However, the only defect in the evidence pointed to by Petitioner is the admission of the victims' statement and the failure to produce the victim. Each of these claims has been addressed herein above. Petitioner does not identify any element of the offense which was not fully supported by the evidence.
The Due Process Clause of the Fourteenth Amendment protects a defendant against conviction "except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358, 364 (1970). "[O]n habeas, `the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Chein v. Shumsky, 373 F.3d 978, 982 (9th Cir. 2004) (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
The Arizona offense of kidnapping requires evidence of restraint, and intent to cause physical injury or reasonable apprehension of imminent physical injury. Ariz. Rev. Stat. § 13-1304. Here, Petitioner's simple assault on the victim, accompanied with his restraint of her, was sufficient to establish the offense. "[T]he seizure or detention of the victim, with any accompanying movement, is necessarily sufficient to constitute the separate crime of kidnapping." State v. Gordon, 161 Ariz. 308, 314, 778 P.2d 1204, 1210 (Ariz. 1989). Even without the statements from the victim, there was more than sufficient evidence that Petitioner had restrained, and moved the victim, and did so with the intent to either physically harm her, or at a minimum to place her in fear of such harm.
Defense counsel argued at sentencing the apparent incongruity of turning into a felony kidnapping every simple misdemeanor assault which involved restraint. (Exhibit F, R.T. 4/23/98 at 9.) Arizona's solution seems to be to simply provide for concurrent sentencing for such inter-related crimes. See State v. Viramontes, 163 Ariz. 334, 338-339, 788 P.2d 67, 71-72 (1990).
Petitioner's Ground Four is without merit and must be denied.
IV. RECOMMENDATION
IT IS THEREFORE RECOMMENDED that the Petitioner's Amended Petition for Writ of Habeas Corpus, filed May 23, 2005 (#56) be DENIED.
V. EFFECT OF RECOMMENDATION
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the district court's judgment.However, pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have ten (10) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. See also Rule 8(b), Rules Governing Section 2254 proceedings. Thereafter, the parties have ten (10) days within which to file a response to the objections. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) ( en banc).