Crespin v. State of New Mexico

TACHA, LUCERO, Before HENRY and. Judges. Circuit LUCERO, Judge. Circuit requires This case appro- us to revisit the priate applied standard to be under the fed- eral Confrontation determining Clause when admissibility a non-testifying of accom- plice’s. confession. We conclude in- that an applied. correct standard was Crespin prisoner Felix is a in New Mexico custody,- state robbery convicted armed relief, charges. and related He seeks habeas contending that the at trial admission non-testifying custodial confession of a co- rights defendant violated his under Con- frontation Clause the Sixth Amendment. The United States district court dismissed prejudice Crespin’s petition with for a writ of corpus pursuant § habeas to 28 U.S.C. 2254. agree petitioner We with admission amounted to confession constitutional er- review, Applying ror. harmless error we - deny habeas relief.' 5, 1990, Crespin On June and co-defen- dants Rebecca Miles and Albert Fuentes charged robbery, conspira- were with armed cy robbery, aggravated to commit armed bat- tery, conspiracy aggravated and to commit battery hold-up in connection with and Allsup’s stabbing at an convenience store early Albuquerque, New Mexico the morn- ing May hours of charged evading Miles were also with an tampering with evi- officer Miles pled dence. Miles and no contest to Fuentes charges. reduced Miles was sentenced years prison, nine six which were sus- months, pended, eighteen Fuentes suspended. three of which were trial, Crespin’s' prosecution called At Miles, testify. represented Miles-to who was Rosenstein, attorney, any ques A. answer Judith Assistant Federal declined to NM, Defender, Albuquerque, robbery. Although the trial Public tions about - respond, Plaintiff—Appellant. court ordered her to and she was open He had a me [to] no Fifth Amendment she had advised that plea, stead of her she knife too. privileges as a result trial court held testify. The fastly refused to from the grabbing “I some ones remember contempt. summary slipping a bunch of register and over cash blood, guess his too. We cigarettes moved to admit into and I government then guy running to the car. The other out-of-court were evidence Miles’s an un- Asserting that Miles was took the police. pushed me in the middle and me____ witness, government contended available knife from she confessed to in which that the and I didn’t know what to “I was all scared crime, hearsay exception as a qualified quick and went around do. We took off 11- Rule of Evidence New Mexico under the corner.” 804(B). request, granted The trial court Id. at 155-56. contained suf- concluding that the statement statement, According Miles’s as the to reliability satisfy to Confron- ficient indicia spotted car fleeing three were the she under both the New tation Clause concerns futilely get 'tried to the police officer and and States Constitutions. Mexico United Eventually, stop. she kicked the others to House, Jeff who took Police Officer stop. forced the car to She was driver and May morning of was confession the grabbed by passenger the male who then tes- called to the stand. House subsequently “ T her to run. Miles continues: didn’t told “open- offered the statement tified that Miles run I was scared. I ran and to becaus'e [sic] promises ly willingly,” and no threats or trailer____ money I under a left the crawled exchange. He then read were made I want it. Then I there because didn’t statement, in which of Miles’s edited version over a fence and that’s when the climbed 1:30 a.m. on Tues- recounts that at about she up came and arrested me.’” Id. buying a day, May while she was whiskey, of hers were quart of some friends by men in a car. As Miles approached two After Miles made her Officer “ car, big knife the she saw ‘a old approached questions. He House asked her a number of their of both of their waists sticking out question-and-answer exchange to read this ” II at 155. After her pants.’ Trial Tr. Vol. jury response the as well. to House’s men, left, two whom Miles did friends the robbing questions, Miles indicated ride, Miles, know, her a who was offered accomplices’ store was her idea: then,”’ buzzing by got into then- “‘already “QUESTION: you got Before to the Alls- statement continues: car. Id. Her up’s, they discuss or tell wouldn’t let me “They drove around and you they you how wanted to said, T need some mon- out. One of them robbery? do this any money give ey.’ I have And didn’t They just to run in “ANSWER: said just bought I had that booze. them because they it and that would be do drinking “I some more of the Jack started said, me. And I behind They I was scared. were Daniels because just ‘Okay, get but don’t me freakie____ acting all I I in trouble.’ knew was Allsup’s. They into the told “[W]e went doing something wrong. to run in and do me to run in. He told me “QUESTION: you Do remember which it, I him I to do it. I told didn’t want subjects of the male one I never done that before was scared. had gave you the knife before already. and I was all drunk you Allsup’s? entered the my by “They put the knife hand tattoos, with the “ANSWER: The one Allsup’s. guess And I that’s door of the passenger one side. guy clerk in the approached I where “QUESTION: passenger go Did the into him, stabbing but store. I don’t remember you? Allsup’s and ... seeing I remember a lot of blood Yes.” [guy] standing telling to me “ANSWER: the other next doing. few I was it will Miles could remember what And Id. at 159-60. happen stabbing again, prom- or the rob- never I either the details about you ise that.” bery: n stabbing “QUESTION: you Do remember Id. at 165. Miles stated that since the arrest Allsup’s? the clerk at the she had seen the two men in court. did, sorry. I If I I’m didn’t clause, “ANSWER: concluding signed House then read a I mean to do that. don’t re- Miles, which Rebecca attested anything that. member .about accuracy. statement’s voluntariness and you saying “QUESTION: Do remember only eyewitness robbery anything clerk? Autry, manager stabbing store Dale vic No, I don’t. “ANSWER: individuals, Autry tim. testified that two “QUESTION: female, other who Did the male and a the store entered around Allsup!s with

went into the According Autry, a.m. woman 2:30 you, passenger with the money?,” him is the “[w]here asked id. at tattoos, and, stab the clerk at open register, as he went to any time, time? During she stabbed him. “[t]he to, sitting telling girl male was there know. “ANSWER: don’t ” ‘Hurry up get so we can out of the store.’ if “QUESTION: you Do remember testified, Autry Id. at 41. also went into the who ' Allsup’s you any- said A. ... I told the male to tell her to back thing open regis- to the clerk? I [the off because wouldn’t stabbing on the ter] with telling Yes. He was the clerk “ANSWER: open register.” to Q. say? Okay. And did he what suggested Id. at 160-61. Miles also that she off, give you A. He told her to back “He’ll was because the two m'en had intimidated money,” the and stuff. weapons: Q. Okay. back off? And did she “QUESTION: your opening A. Yes. you the two stated male Id. at 43. The clerk testified that both indi- subjects you showed their together. exited the store cross- viduals On you knives. Did ever use examination, agreed he that the male not did they these knives to—did participate have a knife in the and did.not [knives] ever use these to stabbing. He also testified you you threaten or forcé money. woman and took demanded anything you to do didn’t Autry readily Crespin In court identified

want to do? as the male in the store. He admitted on they thought go- I were- “ANSWER: cross-examination, however, that he had been ing against to use the knives identify Crespin photo from a ar- unable to they me if I didn’t do what crime, ray days though he three after the I wanted me to do. was picked photo had out a of Miles as the female they scared. But never actu- that, Autry robber. also in re- admitted ally . threatened me with the sponse question from the soon to a knives. crime, after the he had stated that the male “QUESTION: anything you Is there else perpetrator not tattoos on his arms. have your would like to to add Crespin undisputed It that both statement? Fuentes have tattoos on their arms. sorry I’m to the clerk. “ANSWER: And anything help pay Crespin I’ll to was a short time after do arrested crime, from the crime him back. I never did this several blocks . officer, arresting I mean to hurt scene. The as well as other before. didn’t - I to in the arrest and participated him. was drunk officers who point booking, appeared know that there to be where didn’t testified (1965)). shirt, Accordingly, “the jeans The and arms. blood on his produce, or demon- appeared prosecution be dried must either clothing, to with what of, evidence, unavailability strate declarant blood, into as were was admitted statement it wishes use whose time of arrest of Cres- photos taken at the Roberts, 448 U.S. at arms, defendant.” appeared pin’s hand which also at 2538. The statement must also dem- have blood on them. reliability” “indicia of onstrate sufficient jury that the defendant The instructed was 65-66, justify admission. Id. at 100 S.Ct. charged guilty be crimes could found Crespin dispute does the declar- accomplice. as principal as a or either rather, challenges he unavailability; ant’s accomplice states: instruction reliability. statement’s may guilty be found The defendant not do though he himself did crime even accomplices or co- Confessions crime, if constituting acts the state 'are as “presumptively defendants unreliable beyond a rea- proves to your satisfaction passages detailing the con defendant’s sonable doubt that: passages culpability duct or because those 1. The intended defendant may product well codefendant’s committed; crime be blame, favor, spread curry to shift desire or committed; 2. The was crime himself, avenge attention to anoth or divert helped, encouraged 3. The defendant Illinois, Lee v. er.” crime be committed. or caused the (1986); 2064, 90 L.Ed.2d 514 see Earnest, New also Mexico Proper deliberating After R. at 203.1 649-50, hours, jury Crespin eight convicted about J., (Rehnquist, concurring) (noting qualified all as counts.2 “weighty presumption state must overcome a to 30 second offender sentenced habitual unreliability” to sustain of state admission years prison. ment). In presumption order to rebut this of II unreliability inadmissibility, New Mexico that must demonstrate both the statement A “ ‘particularized guarantees contains of trust totality of the from of Clause worthiness’ ... drawn Confrontation Amendment, applicable making circumstances that surround of Sixth made Amendment, through the Fourteenth the statement and that render the declarant states 403, belief,” Texas, 400, particularly worthy Pointer v. 380 85 of and that see U.S. (1965), 1065, 1067-68, trustworthy is statement “so that adversarial S.Ct. reliability.” provides prosecutions, testing “in would little to its that all criminal add 805, 820-21, Wright, v. 110 enjoy right accused ... to be Idaho shall (1990). 3139, 3149, him.” against confronted with witnesses S.Ct. Const, “[EQearsay provision “re- used to a U.S. amend. VI. This evidence convict defen preference possess reliability by flects a for face-to-face confronta- dant must indicia trial, primary trustworthiness, ... ‘a interest virtue of inherent not [its] tion by by is the reference evidence Id. Amendment] secured to other at trial.” [the Sixth 822, Rob- 110 right of v. at 3150. Custodial confes cross-examination.’” Ohio erts, 63, 2531, 2537, 56, traditionally 100 S.Ct. sions “have been viewed with U.S. (1980) suspicion.” Dorsey, (quoting Douglas special v. Ala- Earnest v. L.Ed.2d — (10th bama, 1074, 1076, Cir.), denied, F.3d cert. night robbery. hearing submitting jury, 1. Prior to the case to the her on the of the At a evidence, granted again testify, court a verdict dis- defendant directed this new Miles refused to missing charge evading a officer for invoking privilege against her Fifth Amendment lack of evidence. Lacking proper authentica- self-incrimination. tion, the new was not for its evidence admitted 2. On December moved for defendant truth, and the a new motion for trial was denied. alleged by retrial Miles to based on letter Crespin asserting that had not been -, testimony signed or 136 L.Ed.2d Officer House’s Miles’s 117 S.Ct. (1996). compels that conclu- statement different leniency sion. The relative of Miles’s sen- appeal, the New Mexico On direct appellant tence as contrasted with that of conviction, upheld Crespin’s Appeals Court persuasive contrary. evidence As that agreeing with the trial court noted, the state court “Miles was a first time of relia contained sufficient indicia statement offender while defendant had convicted been Crespin’s claims. bility to rebut constitutional prior ... offenses defendant was [and] 13,029, slip op. at Crespin, v. No. 2-6 State also offered a reduced maximum sentence 27,1992), denied, (N.M.Ct.App. Apr. cert. during plea bargaining which ... defendant (1992). N.M. 831 P.2d 1378 On habeas 13,029, Crespin, slip op. refused.” No. at 3. review, the federal district court dismissed Mexico, Crespin v. Crespin’s petition. New factor, Turning to the second 1997). (D.N.M. No. 94-0367 Jan. Civ. state court concluded that Miles’s statement reliability hearsay of the state evaluating the against penal interest. The court ments, presume findings factual we standard, set forth the correct examin New Mexico state court and the federal dis ing whether the statement “so far tends to clearly errone trict court are correct unless liability criminal the declarant to ous, Reynolds, 51 F.3d see Brewer v. person posi a reasonable the declarant’s (10th Cir.1995); the overall determina tion would not have made the statement un reliability question of law tion of is a mixed 4; less she believed it to be true.” Id. at see reviewed, Earnest, de novo. See arid fact States, Williamson United 1131; Myatt Hannigan, F.3d 605-06, 114 2431, 2438, 129 L.Ed.2d 476 Cir.1990). (1994). emphasized The court Miles’s aware to crimi would lead ness four- Relying on Mexico state law’s New liability: that she was “[Miles] nal admitted inquiry, factor the New Mexico Court of in the store with a knife and that she took Appeals concluded that Miles’s statement money from the cash She knew her was rehable: wrong. conduct was The trial court was not presumption The state can rebut the required to infer from these facts that Miles Miles’ statement was unreliable show- reasonably could not believe she would be (1), leniency in ing: Miles was not offered 13,029, slip op. at prosecuted.” Crespin, No. (2) statement; state- exchange for her interest; Miles’ ment was attempt Miles not to shift blame from did finding accept We the state court’s (4) defendant; independent herself to and liability subjected that Miles herself to some presented evidence was at trial which sub- However, portions in the of her statement. stantially corroborated Miles’ statement. erroneously state court relied on an limited 13,029, slip op. (citing at 3 Crespin, No. State overall effect on view of the statement’s Earnest, 106 N.M. P.2d liability concluding that the state Gallegos, 109 N.M. 781 P.2d and State as a whole was her inter ment (Ct.App.1989)).3 only est. The court considered whether the conclusion, support subjected any liability In of its first the statement her to and state court that Miles was not did not consider whether the statement as a found offered leniency Ap exchange significantly for her statement. whole reduced the extent of that contradicting liability. pellant presented no evidence knife, led was in store with the she federal court found that the state- she the

3. The district reliability adequate money, based bore indicia of and she what she did ment took the knew on the first two factors: wrong. statement, Proposed Findings reviewing Magistrate Judge's there is and Rec- In Rebecca Miles’ nothing by that statement was (adopted in it to indicate Disposition at 12 district ommended involuntary, Mexico, that was coerced or threat- or she No. 94-0367 v. New Civ. court in by ened. ...' As found both the trial court and (D.N.M. 1997)). Jan. Appeals, the New Court of Miles admit- Mexico sur- guarantees self-incul ularized of trustworthiness a statement is “[W]hether portions of the statement in- rounding determined those patory or not can [defendant], light criminating including of all ... viewing [and] it in context fact inculpated both surrounding circumstances.” William that the entire statement 2436-37; son, 603-04, 114 equally, at rather at and [declarant defendant] Earnest, (implying proximity F.3d at 1134 relying see also than on mere statements [declarant]”) analysis against penal interest inculpatory (emphasis that statement add- ed).4 improper if it “assumed that would be merely reliable because

entire narrative was concluded, self-inculpatory”). some elements of it were appeals court also reliability not admit to support her Miles did of the of Miles’s state stabbing ment, claimed she in committing the and that “the trial court could have it; attempted spread anything about ... that she could not remember ferred however, testimony, responsibility she was crimes on all three indicates clerk’s participants also claims that she rather than to shift blame the stabber. Miles demanding money Crespin, of the store remember from herself to the two men.” not 13,029, companion slip op. that her told the at 5. The court erred clerk and states No. Yet, Lee, open analysis accord in this as well. See clerk she, testimony, (stating it was in ing to the clerk’s at 2064 that robber, money. “question She of whether quiry female who demanded bears on implied any emphasized her drunken state and was ... free from de the confession sire, motive, accomplices impulse may threatened her. Be that her or [declarant] reasonably thought may appearance have mitigate cause Miles have had either to prac culpability by spreading decrease her such statement would of his own liability, exposure tical to criminal the state blame or to overstate involve [defendant’s] ment”). being against precludes not as ment was reliable Lee the distinction be Williamson, upon spreading shifting 512 U.S. at blamé penal interest. tween Cf. (stating appeals predicated that court its 114 S.Ct. at 2435 which the court of in “may just opinion. not assume ... that a statement is Miles’s statement dilutes her self-inculpatory part stabbing of a fuller because it is in both the and the volvement confession, especially robbery by leaving open possibility this is true when that else”); implicates may id. victim accomplice someone have stabbed the (O’Connor, J., by explicitly asserting at 2437 con it was her accomplice money state curring) (holding that codefendant’s who demanded By respon properly mitigating admitted because store clerk. her own “[a] ment was crimes, person position sibility in [declarant’s] reasonable for the the statement clear someone might implicating ly entangles even think the considerations of motive practical exposure to guide analysis else would decrease his which our under Lee. liability, sentencing far criminal least as as Earnest, Finally, pointed state court

goes”); (noting at 1134 corroborating partic- independent existence of proper analysis requires inquiry “into applica- concurring opinion, According our anal- to determine whether the state court’s 4. test—here, ysis improperly legal on the state court’s role intrudes the state court’s anal- tion of the However, conducting in as finder of against fact. ysis Miles’s of whether the statement is requisite de novo review of whether the admis- constitutionally penal We interest—is sound. this statement violates the Confrontation sion of See, analysis e.g., de this novo. must review Clause, itself we can take neither the statement Earnest, 1131, (conducting 87 F.3d at 1133-34 reliability” in state court’s "indicia of nor the statement is de novo review of whether can we assume that the state isolation. Nor in order to evaluate its interest of declarant merely legal analysis is correct because court's Sanchez, 59, admissibility); State v. 112 N.M. cf. proper legal test. the state court has recited 92, (”[W]hether (N.M.Ct.App.1991) a 811 P.2d 96 examining charged in statement We are reliability to statement bears sufficient indicia of entirety of the trial record and its in the context permit into evidence under Rule its admission circumstances,” surrounding light "in of all law.”) 11-804(B) generally question is a 604, 2437, Williamson, U.S. at 114 S.Ct. at 512

649 B admitting Miles’s support evidence because, impermissible That is statement. review, But for harmless error- corroborating sup- evidence the use of opinion. this would conclude our Confronta “particularized hearsay statement’s port a violations, however, tion Clause are constitu per- would guarantees of trustworthiness” tional trial errors to harmless' error presumptively unrelia- mit admission of Arsdall, analysis. See Delaware v. Van 475 by bootstrapping on the statement ble 673, 684, 1431, 1438, U.S. 106 S.Ct. 89 trial, at trustworthiness of other evidence (1986); Joe, L.Ed.2d 674 United States v. 8 re- a result we think at odds with the (10th Cir.1993). 1488, F.3d A federal hearsay quirement that evidence admitted reviewing court a state court determination be so under the Confrontation Clause proceeding grant in a re should habeas trustworthy that cross-examination of the lief unless the court finds the trial error marginal utility. would be of declarant injurious ‘“had substantial and effect or in 823, Wright, 497 110 S.Ct. at 3150.5 U.S. determining jury’s fluence in verdict.’” prosecution’s argument that consider Abrahamson, 637, 113 619, Brecht v. 507 U.S. factor “another hurdle” for ation of this adds 1710, 1710-22, 123 L.Ed.2d 353 S.Ct. prosecution and thus benefits the defen States, (quoting Kotteakos v. United Appellee’s. disingenuous at best. See dant is 750, 776, 1239, 1253, 66 S.Ct. 90 L.Ed. 1557 Clause, Br. at 22. Under the Confrontation (1946)).6 error, To obtain relief for the corroborating to bolster a use of evidence petitioner habeas must “establish that it re reliability impermissibly eases statement’s Brecht, prejudice.’” in ‘actual sulted pertinent prosecution’s on the burden (citation 637, at 1722 omit S.Ct. inquiry—the in the “inherent trustwor issue ted). grave Where a court “is in doubt as to Wright, itself. thiness” the.statement the harmlessness of the error ... the [habe at 3150. U.S. at petitioner must win.” v. McAn as] O’Neal inch, 992, 995, courts Because we find the lower (1995). not, explicitly implicitly, correctly either or examine Miles’s We reliability” analyzing apply light the “indicia of of the entire record to determine, possible we conclude that “on the on the the error’s effect (10th us, Utah, jury. record before there is no occasion to 57 F.3d Tuttle Cir.1995). depart teaching from the time-honored that a inculpating confession the ac codefendant’s Lee, Viewing light error inherently

cused is unreliable.” ’thé whole, presented at we U.S. at 106 S.Ct. at 2065. We hold that evidence trial as Wright, admission of the statement violated the Con find the error harmless. See (“[T]he at 3150-51 frontation Clause of the Sixth Amendment. U.S. approach may Chapman appropriate 5. when ana- harmless error standard on collateral This lyzing admissibility under the New Mexico con- court has not reviewed for review where state Sanchez, But error); Lockhart, stitution. See 811 P.2d at 95. our Orndorff admissibility inquiry on the of the statement Cir.1993) (same). appellant’s posi While constitution, governed by the federal under merit, tion has some we cannot accommodate it. improperly which this factor is considered. ap rejected- approach This Circuit has plies regardless standard Brecht/Kotteakos argues Appellant the Brecht/Kotteakos applied whether the state courts harmless error governs only applied standard if the state courts Brewer, analysis appeal. 51 F.3d at on direct See appeal on direct the harmless error test from applying (rejecting holding in Starr and California, Chapman v. 87 S.Ct. review). harmless We lesser Kotteakos error (1967) (appropriate rejected Supreme note that Court has standard is whether federal constitutional error árgument Confrontation Clause errors merit that doubt”)! beyond a reasonable Be is “harmless higher a standard of review than other constitu cause the courts below no federal constitu found Iowa, Coy See v. 487 U.S. apply tional trial errors. tional error and therefore did not 2803, 1012, 1021, 2798, test, S.Ct. 101 L.Ed.2d Chapman appellant argues court Arsdall, 684, (1988); apply higher Ap standard of review. U.S. at should Van 17; pellant’s Lock Br. n. see also Starr v. S.Ct. at 1438. hart, Cir.1994) (8th (applying 23 F.3d Sixth ap- police violated defendant’s corroborating evidence more presence of majority points rights. As the Amendment any error admit- propriately indicates out, ultimately turns on whether harmless, this issue might be rather ting the statement “particularized guar the statement contains presuming for any exists than that basis that make it un antees of trustworthiness” trustworthy.”). to Undoubted- declarant worthy Lee v. Illi commonly of belief. See important to the ly, statement was 2056, 2063, nois, 106 S.Ct. 476 U.S. evidence, Independent prosecution’s ease. (1986) (discussing v. L.Ed.2d 514 Ohio however, substantially supported his convic- Roberts, 56, 66, 100 2531, 2539, accomplice conspiracy and as an to tions for (1980)). People very are 65 L.Ed.2d battery. robbery aggravated and the armed falsely; unlikely inculpate themselves required place him was not The statement therefore, against a is the fact that statement robbery. At at the time of the in the store penal interests “is itself one of a declarant’s trial, Crespin Autry firmly as Dale identified guarantees of trustworthi ‘particularized scene, in the present male at the crime a admissible un ness’ makes statement .that Autry’s rigorous .cross-examination. face of Clause.” der the Confrontation Williamson description Crespin’s actions and state- States, 114 S.Ct. v. United during robbery—urging Miles to ments 476.(1994). 2431, 2437, 129 L.Ed.2d advising Autry turn hurry up, over the that Ms. Miles’s The state court found possible super- money, acting a lookout or as penal was interest and statement observing the crime in commis- while visor majority disagrees The and admissible. sion, leaving the store with Miles once and a violation of the Confrontation finds Clause. money—provides further she obtained majority disagreement bases its with the jury Crespin support for the verdict fact, point court on a which the state charged. stopped When guilty of the crimes correct, obligates presume us to rath- statute by police, Crespin plausible lacked a alibi cannot point er than a of law. therefore presence for his in the area of the crime join reasoning. its early morning scene in the hours. Addition- actions, ally, seeing corpus officers testified to courts several In habeas federal arm, Crespin’s and,clothes give great hand deference to the factual find- blood on must arrest, stop jury ings by According courts. the time of his and and made state statute, evidence, a clothing relevant “‘a determination after the form of the received issue, testimony. hearing on the of a factual made photographs, supporting this merits jurisdiction by competent court of overwhelming prop- State light evidence presumed ... shall be to be correct’ unless jury, erly presented to the we are confident have, eight one of enumerated circumstances is that the constitutional error did Ward, v. established.” Williamson injurious substantial and effect determin- Cir.1997) (quoting 28 1513 n. 7 ing jury’s verdict. 2254(d)).1 corpus ap- § In habeas U.S.C. AFFIRM. therefore, peals, carefully separate we must issues, take factual issues from TACHA, concurring. Judge, Circuit issue with the latter. sepa- judgment I concur in the but write Distinguishing between law and fact is al- my majority rately express view that the ways enterprise, see Pullman- a difficult 2254(d), misinterprets § re- 28 U.S.C. which Swint, 273, 288, 102 Standard quires presume findings that the factual tous 1789-90, (1982), of the New Mexico courts are correct. particularly regard to whether a so with against a in- The issue before us is whether the admis- declarant’s are several reasons to call that sion of Miles’s out-of-court statement to terest. There Ms. however, apply petition, portion applicable the amendments do not section 2254 here 1. The F.3d 828, Walker, 833 n. Effec- here. See Nelson v. was amended the Anti-Terrorism and — (2d Cir.1997) (citing Murphy, Crespin Penalty filed Lindh tive Death Act of 1996 after -, corpus. petition a writ of habeas Because his (1997)). passed filed his the statute was after

651 (1985). with, 451-52, begin Thompson, legal a one. To determination pronouncement has that factual is- Supreme Court said the Court’s most recent on 2254(d) 2254(d), are limited to section repudiate ap- sues under section does facts: facts in primary, or historical “basic proach. Thompson approves of two deci- of a recital of external events and the sense classify questions sions that mixed of law and Thomp- credibility narrators.” of their fact—specifically, competency a defendant’s ' 99, 110, Keohane, 116 516 U.S. S.Ct. son juror impartiality—as to stand trial and (1995) (citations 457, 464, 383 133 L.Ed.2d 2254(d) purposes “facts” for of section be- omitted). marks The quotation and internal [of cause the “resolution those de- issues] question cannot resolved penal interest pends heavily appraisal trial on the court’s of facts. To deter- solely by review of historical credibility and witness demeanor.” See is mine whether a statement 111, Thompson, 516 at 116 465. U.S. S.Ct. at interest, apply courts an penal declarant’s importantly, Thompson suggests More pure objective legal standard to historical any point classifying if there is little far they ask if the statement “‘so facts: question mixed of law and fact as “law” if de ... crimi- the declarant to tend[s] appellate question novo review of the will not person in liability ... that a reasonable nal produce opinions that draw lines and make position not have made the declarant’s would ” 14, 114 later decisions easier. See id. at n. believing it to be true.’ the statement unless (“[T]he likely 116 S.Ct. at 466 n. absence Williamson, 606, 114 at S.Ct. U.S. precedential'value against requiring cuts J., (Sealia, concurring) (quoting Fed. plenary appellate review of a district court’s 804(b)(3)); Thompson, also R.Evid. see determination.”). penal ques The interest 112, (determining 116 S.Ct. at 465 U.S. notoriously clarifying pre tion is resistant to custody” person is “in is a that whether a question cedent. It is the kind of that “can requires legal question because it court to context,” by viewing in be determined it facts); apply objective standard inquiry, and that is “a fact-intensive which 1123, Dorsey, Earnest v. 87 F.3d ... require[s] careful examination of all the Cir.) question of law (suggesting that mixed surrounding circumstances the criminal ac presumption not entitled to and fact is — Williamson, tivity involved.” 512 U.S. at correctness), denied, U.S. -, cert. 603, 604, 114 (1996). S.Ct. at Further S.Ct. 136 L.Ed.2d context, more, corpus the habeas outside penal is one of Whether the interest issue penal question courts have found the interest to a presumption fact—and therefore entitled See, e.g., States v. to be a one. United question. is a of correctness—or law close (1st Barone, Cir.), 114 F.3d cert. majority reviews it novo without dis- de — denied, -, assuming, conceding, cussion. Even without Costa, (1997); States v. L.Ed.2d 500 United majority presump- that the is correct and the (11th Cir.1994). finding penal tion does not attach to the made; however, strong A can also be case however, interest, majority opinion still as a classifying interest issue section fails to observe the commands of 2254(d). purposes section factual one for 2254(d). admission, Supreme At own it Court’s Regardless question of whether a mixed as ‘factual issues’ within “has classified 2254(d), governed by it law and fact is section 2254(d)’s compass questions extending § be ” undisputed questions that “the of fact that happened.’ yond the determination of ‘what S.Ct, gov ultimate conclusion are underlie [the] Thompson, 516 at 464. statutory presumption.” Sum erned an “issue falls somewhere between a When Mata, 591, 597, 102 ner v. simple pristine legal standard and histori (per curi fact,” has turned cal the distinction at times um) case, (emphasis original). analysis, practical rather on a not on but therefore, presume state we must judicial consideration of which actor-is better correctly issues of histori disputed court determined situated to decide the issue. Miller Fenton, fact, reasons for cal such as Ms. Miles’s 652 majority gives scribing The

making quintessentially the statement. intent as a factual finding. that factual question); no deference to Davidson’s Estate v. Commission- (10th er, Cir.1946) (“The 158 F.2d majority acknowledges that the state The in impelling question motive each case is a of legal correct court “set forth the standard.” fact____”); Thompson, 516 at Maj. operative Op. question at 647. The was (stating at that factual issues are so far whether the statement tended sub- “facts in the sense of a recital of external ject liability the to criminal that a declarant credibility the events and their narra- person position reasonable the declarant’s added) (citations ”) (emphasis tors and inter- would not have made statement unless omitted). quotation nal marks Williamson, she it to be true. believed See 603-04, at S.Ct. at 2436-37. explicit The state courts did not make fac- majority disagrees ap- with the court’s findings contrary, tual to the but that standard, plication of the facts appeal, immaterial. In a habeas we must legal. that one but not for reasons could call presume explicit correct both the and the Instead, majority’s hinges conclusion implicit findings factual of the state courts. belief that Ms. did not tell the its Miles Lujan Tansy, See F.3d truth and tried to minimize her role in the Cir.1993). implicitly The state court found robbery: intentionally that Miles did not Ms. minimize statement, In her Miles did not admit to her role the crime when she made her committing stabbing and claimed she police. knowingly to the If she it; anything could not remember about concealed extent of her involvement and however, .testimony, clerk’s indicates she emphasized others, the actions of the her was the stabber. Miles also that claims statement would not genuinely have been demanding money she did not remember . Rather, self-inculpatory. it would be clear to n of the store clerk and states that her com- any court that the statement was motivated panion ppen told the clerk to by a liability desire to decrease her at the Yet, according to the clerk’s tes- expense of her A co-defendants. court could she, robber, timony, it was who female possess not find such a deceitful statement to money. emphasized demanded She . “particularized required guarantees implied drunken state and that her accom- Lee, trustworthiness.” at plices her. threatened S.Ct. at 2063. added). Maj. Op. (emphasis pas- This sage, majority’s which forms the basis for the majority The. intimates the state disagreement court, with the state makes a may courts not have truthful- evaluated the By contrasting number of conclusions. Ms. implicitly. ness of the even Ac- testimony Miles’s statement with the cording majority, “appeals the state clerk, the court concludes that Ms. Miles court looked to whether Miles’s state- stabber, money she demanded the subjected any liability.” ment Maj. her to clerk, from the that she in fact remembered Op. (emphasis original). That doing things those at the time she made her court, however, “any liability” use an statement, and that she chose to hide those Instead, correctly test. it noted that a state- facts from the in order to minimize her ment interest is one that “so far robbery. role subject [the tended to criminal declarant]

All of liability these conclusions are factual in na- position that a reasonable man in his fact, they ture—in archetypes are of factual would not have made the statement unless he questions. Crespin, Who stabbed the clerk and who it to be true.” State v. No. believed money 13,029, questions demanded are classic slip op. at 2. This standard does not happened.” “what importantly, More attempt it is include statements that “mitigat[e beyond credibility doubt responsibility Ms. declarant’s] particular crimes,” Maj. Op. statement and her reasons majority as the for making it are facts. See United States v. characterizes Ms. Miles’s confession. There- Bohl, (10th Cir.1994) (de- fore, majority disagreement bases its implicit factual court on the state court. finding of the state correctness presumption of 2254(d) accept us to requires §

U.S.C. contrary finding therefore

state court’s to be one

find the statement enough penal interests. That is

declarant’s under the make the statement admissible Clause. See Williamson

Confrontation States,

United 512 U.S. at Thus, I find no constitutional error

2437-38.

in this case. above, respect- reasons outlined

For the majority’s analysis

fully disagree with the judgment. concur SUBPOENAS, JURY re: GRAND Doe.

Jane Roe and John

INTERVENOR, Appellant, America, Appellee.

UNITED STATES of

No. 97-3120. Appeals,

United States Court

Tenth Circuit.

May

Case Details

Case Name: Crespin v. State of New Mexico

Court Name: Court of Appeals for the Tenth Circuit

Date Published: May 7, 1998

Citation: 144 F.3d 641

Docket Number: 97-2046

Court Abbreviation: 10th Cir.