*1 to a strays close dangerously conviction Such
finding guilt association.
сonviction, in the of a even context street First squared with the cannot
gang,
Amendment, thus stand. See cannot Hardware,
Claiborne 3409; F.3d Prunty, 107 Mitchell v. (9th
1337, 1342 Cir.1997), oth overruled on Horsley, 133 grounds by Santamaria v.
er (1998) (en banc); v. see also Hill
F.3d 1242 (5th Houston,
City F.2d Cir.1986) Constitu (explaining “[t]he decent, law- protect only
tion does
abiding people”). stringent requirements
Given the
AEDPA, grant we hesitate affirm a Arizona where three levels of the
habeas prop- system have held a conviction
Court however, conclude, reluctantly
er. We in which
that this is one of rare cases decision review" of state court’s our “a firm convic-
leaves us with ‘definite and an error committed.”
tion’ that has been (citation omitted).
Chmn,
The district court’s of the writ
therefore,
AFFIRMED. GRAY, L.
William Petitioner-
Appellant, KLAUSER, Warden,
Joseph
Respondent-Appellee.
No. 00-35732. Appeals, Court
United States
Ninth Circuit. 7, May
Argued and Submitted
Filed Feb. *3 rights and constitutional
requisite error harmless standard was met, we reverse.
I. Facts 24,1989, July LeRoy On Leavitt went to Falls, the Idaho Idaho home of Reeda Roundy. There, Roundy he found Betty Gray, Roundy’s best friend and lover, gunshot Leavitt’s dead from wounds *4 to the head. more than years After two investigation suspects, govern- of four Gray’s ment indicted Betty husband of 29 years, Gray, William for the murders a and related burglary count. Theory A. The State’s Grant, Newcomb,
Maynard Grant D. & Seattle, WA, petitioner-appellant. for the state, According learning to the after Robins, that Deputy Betty having
Kenneth M. Attorney Gray was affair with General, Boise, ID, divorce, for the Leavitt and respondent- that she wanted a appellee. Gray hatched a Ml plan to his wife and steps
took to ensure he would get First, caught: Gray bought a 1971 Inter- registered national Travelall and a under Then, false name. in early morning July Gray hours of drove the Hole, Travelall in from his home Jackson TROTT, LAY,* BERZON, Before: and Wyoming, to Eastern Idaho Medical Judges. Circuit Falls, Center Gray Idaho Idaho. parked the at the Travelall Medical Cen- BERZON, Judge: Circuit ter, and then bicycle rode his 3.6 miles to Idaho prisoner Gray state William home, Betty Gray where had wife, convicted of killing Betty Gray, spent night. friend, Roundy. and her Gray Reeda un- successfully home, sought relief At Roundy’s Idaho government claimed, state system before filing Gray a habeas both Betty Gray shot and petition pursuant Roundy in federal court to 28 with a handgun. head 9mm § U.S.C. 2254. The district court The prosecution denied Gray theorized that ar- petition granted ranged but certificate of appear the scene to as the site of a appealability Gray’s for each killing, claims. ritualistic cult hoping to deflect Because we find that the Idaho suspicion Then, Gray from himself. rode (“trial court”) rulings court’s regarding the bike back 3.6 miles to the medical admission of evidence violated center and drove the Travelall back to * Lay, The P. Honorable Donald Senior nation. Circuit Circuit, Judge Eighth sitting by for the desig- bicycle ride a into medical aged man was also evidence Hole. There
Jackson into bicycle lot parking put the investi- center initially during lied Gray matters, plates. license including Wyoming a vehicle with as several gation police, Mackley a vehicle similar to the de- whether he owned Travelall, it. variously Jeep, as why, happened what scribed the vehicle vehicle, and as “Suburban-type” perhaps The B. Defense an International. of two related consisted defense approached the Suspicious, Mackley murderer and he was not the claims: that lot questioned parking man him. Regarding else that someone was. dark, Mackley jury, he told the murderer, Gray was not the claim he flashlight over the man’s scanned a beam was not in Idaho Falls that he asserted sixty approximately face. For seconds testified also question. He night Mackley spoke middle-aged with a Cauca- Betty Gray’s he know about did not rosy with cheeks who was sian man red until after the murders. affair Leavitt out of breath. sweating profusely and was no the State had emphasized man, a medical identifica- who wore crimes, linking him the fingerprints Mackley told glasses, tion bracelet and *5 physi- little other produced that State picking up that the vehicle for he was Moreover, Dr. Karen Servil- cal evidence. Hole, Wyoming. friends from Jackson la, opined that Gray’s treating physician, spread, news of thе murders After condition, poor medical because of police and told Mackley contacted the to ride his Gray physically unable was he had When asked to them what seen. in the round-trip mile time bicycle the 7.2 a composite create help police a artist Gray government. also theorized man, fairly mystery Mackley sketch of bought he had the Travelall explained that with Gray signifi- described one accurately part pawnshop of his for someone else as that man cant he claimed exception: business, was although that never person he had was clean-sha- spoken with whom found. mustache, beard, ven, no or stating “No Gray’s posit- defense part second Gray a full beard sporting was anything.” killer, else was the real somebody ed that night question. on the directions. Gray pointed and several later, police when the days Three the ritualistic emphasizing Aside from five-person photographic him a showed scene, Gray postu- crime overtones of the Mackley selected bearded line-up,1 people Leavitt, lated that one three — Gray, person remember stating “the lover), Riley (Roundy’s current Houston [Gray].” photograph a was in tee lover) Dyer (Roundy’s previous J.W. —was about the fa- he was “concerned” Because the murders. responsible for however, hair, Mackley po- asked the cial had been recently photograph lice how Line-up C. The Photo taken. case was key to the state’s Steve later, Then, days Mackley coinci- a few Mackley, security guard at the Eastern Gray hospital, at a and dentally ran into 3:00 a.m. Idaho Center. Around Medical Gray as the man immediately identified Mackley a middle- July saw person photograph 6. array knew Actually, photograph consisted of Mackley acknowledged photos. that he six parking medical center lot with hearsay by Betty from the statements made Gray that, Mackley put Gray motive, and Travelall. As bicycle supplying didn’t appear likely it: “The facial hair throw me off made it he more that was the Likewise, seen it in again, picture.” I’d killer. attempted because the defense hearsay introduce statements made by prevent state Gray sought to from Roundy, through testimony Roun- introducing Mackley’s statements identify- children, friend, dy’s two her best Gray mystery bicycle-rider. ing as the Riley, the man was her who lover at the Gray argued that the manner in which the time her death. These statements arranged was photographic array called appear likely made it more Gray unduly attention to thus lover, killer, Dyer, former was the as he array, suggestive. Gray’s picture In the is had Roundy. threatened and stalked tint; only also, a dark pink one with only Gray Gray’s objections, other man are Over one shown the trial court glasses. That other man is allowed the state to wearing wear- introduce some of Gray Betty ing sunglasses depicted while look- statements. Before so top ruling, the trial court ing reading glasses, pre-trial out over the held a suppression Mackley hearing to consider the regard- characteristic had admis- noted sibility of these person statements. Buceóla testi- ing he saw. contended fied at others, hearing about that for several conver- these reasons the ar- sations she had with her deceased sister.2 ray unduly suggestive, and that the Following hearing, the trial court ruled identifications fruits of unduly that the state could not Betty introduce suggestive reject- The trial line-up. Gray’s statement that she feared her hus- Gray’s argument, finding ed the array *6 band, because the statement not mate- unduly was not that suggestive, and even if did, however, rial. court The allow Buceó- was, it Mackley’s were suffi- identifications la testify to that Betty Gray trial said ciently reliable to be admitted. Idaho that she was having an affair and wanted a array Court Appeals found the to be divorce, Gray that had learned about the unduly suggestive, held Mackley’s that divorce, affair and desire for Gray that had “sufficiently identification was reliable to secret, keep asked her to it Gray that outweigh suggestiveness the low level of angry became when she divulged the se- the identification procedures.” State v. cret. trial court concluded that one of 784, Gray, 129 Idaho 932 P.2d (that these Betty Gray statements told 921 (Ct.App.1997). The federal district divorce) Gray she wanted a not hear- court in its decision on habeas review say, and that the rest were relevant state- reasoning appeals tracked of the state fact particularized ments of that bore court. guarantees of trustworthiness and thus Hearsay D. The Evidence were admissible under Idaho’s residual ex- ception hearsay rule, IDAHO R. trial, sought At both to present sides 803(24) (“Rule 803(24)”). EVID. hearsay in order to advance their respective not, theories Through however, case. The trial court did allow testimony Betty Gray’s sister, Gray Joann any hearsay introduce of the state- Buceóla, the sought state to introduce ments Roundy. attributable to Roundy’s prosecution 2. The gave pre- reason the ways for were different in some from those con- senting Buceóla a live government's witness before prehearing tained written judge was that the statements she testified to submissions. first, Gray filed a peti- P.2d 907. then indicated, she was that statements second, the Idaho and, Supreme the reasons tion for review with Dyer, afraid of and, denied, fear, Court, petition had including Dyer after it was her that for her, to kill had threatened for of Certiorari with the United that he Writ stalked Court, her, had her that police Supreme told also denied. and that States The trial court “mercenary.”3 awas timely petition filed a for habeas Gray could not statements first ruled these Gray respondent Joseph Klau- relief. mind hear- under Idaho’s state of come ser, the warden of the Idaho State Correc- 803(3) R. EYID. say exception, IDAHO Institution, summary filed tional cross (“Rule 803(3)”). It reasoned —as did judgment district court motions. The Betty regard to similar granted the warden’s motion denied relating Gray the statements —that Gray’s. Gray appeals ruling. now immaterial Roundy’s mind were state It held that inadmissible. then and thus II. ANALYSIS Roundy’s fear were state- the reasons for Gray appeal. raises four issues fact, qualify for ments of thus photo line-up proce- argues He under the state mind admission that it denied his suggestive dure was so exception. to due constitutionally-protected right pro- The trial considered ad- court next process He due is- cess. raises second missibility Roundy’s statements under sue, claiming the trial court failed to hearsay exception, Rule Idaho’s residual poll jurors regarding prejudicial mid- all 803(24). Here, once the trial court held claims, Gray thirdly, trial publicity. relating that because the statements again rights under violated state of mind were materi- Roundy’s Amend- Confrontation Clause Sixth al, they As were inadmissible. hearsay statements by admitting ment factual rea- statements that indicated the Finally, argues that Betty Gray. mind, sons for state of process his due the trial court violated they qual- court held that because failed rights suppressing hearsay statements Idaho’s state of ify admission under these con- by Roundy. We address made did not hearsay exception, they mind also *7 in turn. tentions qualify for admission under Idaho’s residu- rulings hearsay exception.4 al two oral Photographic Line-up A. The trial, during repeated the trial court this deciding— reasoning. Assuming—without arrаy five-person photo that the was some Proceedings E. suggestive, we are convinced what eyewit trial, circumstances jury under the Following the returned ver- Mackle/s sufficiently degree ness identification was reliable counts first guilty dict of two of jury. presented been Man degree of bur- to have murder and one count first Brathwaite, 114, 97 the of son v. Gray appealed to Idaho Court glary. (1977); L.Ed.2d 140 Neil v. 53 Gray, affirmed. 129 Idaho S.Ct. Appeals, which rulings question are 4. on this the court's 3. The does not elaborate on defini- record detail, infra, except say we "mercenary” to individual, where tion of more described military-involved who admissibility was "a issue on the discuss goods with sporting owns a store ... access merits. weapons.” to numerous 640 188, 198, 409
Biggers, U.S. had a S.Ct. fendant “shoulder-length straight- (1972). In determining L.Ed.2d permanent style”). ened hair an eyewitness’ whether identification is Mackley fairly was the photo sure at sufficiently to outweigh rehable the sug- line-up that Gray was the man he had consider, of gestiveness photo array, we encountered the medical parking center (1) among things: opportunity other of lot. He stated Gray person “the was the witness to view criminal at the (2) crime; Mackley remember to a time tee.” was degree the witness’ con- attention; (3) cerned, accuracy prior however, hair, of his about facial (4) level description; certainty dem- photo and asked when the taken. (5) identification; at onstrated Finally, Mackley’s the time between en- length time between the crime and the counter with mystery bicycle-rider Brathwaite, identification. 432 U.S. at Gray his photo selection line-up 114, 97 days. was short: three Mackley fairly had a good opportunity to mystery bicycle view spoke rider. He circumstances, Under these there is not man range approxi- at close “a very substantial irrepara- likelihood of mately sixty Although seconds. it was [, ble misidentification and] [s]hort dark, Mackley flashlight scanned a beam point, such evidence is for jury across the man’s face several times. Brathwaite, decide.” U.S. Mackley’s degree attention was rela- (internal quotation S.Ct. 2243 and citation tively onduty An high. security guard at omitted). encounter, time his attention was piqued suspected because he that the B. Polling Juror illegally man siphoning gas or hot- wiring a car. Upon Gray’s request, the trial court Mackley’s pre-line-up description was polled members their expo- about accurate in ways. Mackley several de sure potentially adverse mid-trial pub- person scribed the parking in the lot as a licity. court, In his brief Caucasian, man, middle-aged with flushed argued, as he appeal had on in the state a ruddy cheeks and complexion, who wore courts the federal district court on glasses and a medical identification brace habeas, that the trial judge inadvertently let. Also, description Gray. Each matched bypassed juror one and that this failure Mackley accurately described the Interna denied him right to an impartial jury. tional Travelall vehicle with fair accuracy, appeals The state district including Wyoming its plates.5 license *8 accepted the factual representation However, the Mackley fact that remem but held that there was no of error consti- clean-shaven, bered the man as while Gray tutional Gray’s appellate dimensions. As beard, had a significant appreciably under counsel acknowledged during oral argu- cuts accuracy of his description. See ment, however, reading a careful Myers, Tomlin v. 30 F.3d 1241 — 42 (9th Cir.1994) transcript judge shows that the trial (questioning the accuracy of poll each of jurors identification where the twelve witness and two stated perpetrator had a “two-inch afro” and de- alternates. There was no error.
5. Mackley vehicle, brand, vacillated somewhat before and its and the manner during describing trial in precise tailgate operated. color of which the
641 sufficient under Hearsay respects, in some Betty Gray’s ed Statements C. to a violation of the Con- Wright preclude trial court’s challenges the frontation Clause. Gray’s out- Betty of allow some decision to Idaho’s residual under statements of-court Hearsay Roundy’s Statements D. 803(24), as viola exception, Rule hearsay did commit a different The trial court right Amendment Gray’s Sixth tive error, in connection though, constitutional a declarant is confront witnesses. When Betty Gray’s its to admit decision testify, Confrontation unavailable the court hearsay Although statements. if it hearsay only Clause countenances statements, which favored admitted her reliability indicia of adequate demonstrates position, it refused government’s (1) firmly rooted by falling within either by hearsay statements parallel admit (2) bearing hearsay exception; particu statements, in- Roundy Roundy. In these See of trustworthiness. guarantees larized had life threatened her dicated 805, 815, Wright, 497 U.S. Idaho applied her. Had the court and stalked (1990). Ida 3139, 111 L.Ed.2d S.Ct. reasoning used to exclude exception, under hearsay ho’s residual statements, Betty Gray’s statements ad challenged which the as excluded those statements would have mitted, ex firmly hearsay rooted not a is well. S.Ct. 3139. The Id. ception. Amend question raised Sixth asymmetrical application This is whether challenge, consequently, ment is unconstitutional. evidentiary standards under admitted Betty Gray’s statements arbitrarily a de prevent A state hearsay exception partic bore residual presenting from evidence fendant of trustworthiness. guarantees ulaiized material, trustworthy, important allowing prosecution, defense. presented the testimo- government 803(24) defense, to use Rule ny to the situational back- of Buceóla as import of similar hearsay admit evidence Betty Gray’s statements. As ground of character, court violated the the trial observed, tri- district court the federal arbitrary against prohibition constitutional precisely process engaged al court to de evidentiary standards application suggested is Supreme that the Court has fendants. trustworthi- to determine the necessary thereby statements and ness Ruling the Trial 1. The Basis for Court rights defendant’s under
protect on direct 818-20, Appeals The Idaho Court Id. at Confrontation Clause. review, P.2d Idaho at Moreover, Gray, 129 the trial court re- habeas and the district court on on the basis of some found trustworthiness facially asymmetrical affirmed the view Supreme that the Court has of the factors on an rulings on similar evidence abuse particularized guarantees approved standard, ruling that trustworthiness, including spontaneity, discretion mind, entitled to conclude court was repetition, state of consistent prosecution bore all offered (although not lack of motive to fabricate trustworthiness particularized indicia of admitted had all these of the statements *9 characteristics). by the defense did not. while that offered Id. conclude that the We record, however, indi- A close look the into the trustworthi- inquiry trial court's not the trial court’s decision was Betty cates that the introduction of preceding ness statements, the trustwor- any on concern about based hearsay while truncat- Instead, parts Roundy’s of the statements. the ries: the of thiness statements (1) (2) mind; court on a thrice-repeated regarding trial acted sub- her of state analysis that stantive could been used the factual reasons for her of state mind. Betty Gray to exclude to statements but The Roundy’s latter included statements “(1) was not. she had heard that was a (2) mercenary; Dyer had threatened to kill actually the court gave reasons trial (3) her; around; Dyer had followed her hearsay rejecting for evidence offered (4) Dyer kept calling always her and (1) by Gray were that the evidence was not seemed to know her address.” The court (2) material to the case and because the regarding declared statements Roun- qualify not for admission un- did dy’s state of mind immaterial and thus hearsay mind der Idaho’s state of excep- inadmissible. It then held that the state- 803(3), tion, qualify Rule it did not also for ments indicating Roundy’s reasons for hearsay admission under its catch-all ex- state of mind were statements of fact and 803(24). ception, Rule These reasons thus qualify did not for admission under of formed basis court’s hold- the state of hearsay exception. mind ings on each of the three occasions that the admissibility trial court considered the next section of trial court’s writ- the Roundy hearsay by evidence offered disposition ten analyzed hearsay evi- the defense. Not once did the court pass dence under hearsay Idaho’s residual ex- judgement Roundy on whether the state- 803(24).8 Here, ception, Rule the trial guarantees ments bore particularized held, again, once that because the or they trustworthiness indicate that relating Roundy’s state of not.6 material, mind were they were inad- initial, disposition, In its written missible. As to the parts the trial the state- analyzed admissibility court first ments that indicated the factual reasons mind, Roundy hearsay for evidence under Idaho’s state the trial court stated, hearsay exception, passing, state-of-mind they Rule that because failed 803(3).7 analysis, qualify To conduct this for admission under Idaho’s court divided the into two catego- hearsay exception, they state of mind also Indeed, later, as we discuss equivalent guarantees is clear from circumstantial Gray adequately trustworthiness, the record that met the trial if the court determines that only request proof court's for an offer of con- (A) the statement is as offered evidence of a cerning Roundy situational context of the fact; (B) material the statement is more statements. probative point which it is of- any fered than other evidence which the unavailable, 7. When the declarant is Rule procure proponent through can reasonable 803(3) allows for admission of: efforts; (C) general purposes statement of existing A the declarant’s then justice these rules and interests of will mind, emotion, sensation, physi- state of or best served admission of the state- (such intent, motive, plan, cal condition ment into evidence. A statement design, feeling, pain, bodily mental exception be admitted under this unless the health), including but not a statement of proponent of it makes known to the adverse memory prove or belief to the fact remem- party sufficiently in advance of the trial or bered or believed unless it relates to the hearing provide party execution, revocation, identification, adverse with a it, opportunity prepare fair to meet terms of declarant's will. proponent's intention to offer the statement unavailable, 8. When the declarant Rule it, particulars including and the 803(24) for the allows admission of: name and address of the declarant. specifically A any statement not covered exceptions of the foregoing having *10 spoke or the circumstances which the under Idaho’s for admission qualify did not uttered, remarks were and therefore did hearsay exception.9 residual any it wаy not indicate in that believed the later, trial court reaffirm- days Two regarding hearsay statements these facts a oral statement. in brief ruling ed its trust- particularized guarantees lacked request renewed denying the defense’s worthiness. hearsay evi- court that the trial admit later, again the trial court dence, the rea- Two weeks judge reaffirmed admissibility hearsay of the Just as its considered soning in its written order.10 803(24). order, Again, under Rule the trial court did evidence written earlier And, orally.11 Roundy ruling trial court issued its the facts of which not focus on I.R.E., 803(3), evidence under Rule it following is the trial court's written as 9.The admissibility analysis regarding the of Roun- are also inad- follows that such statements 803(24) (emphasis 803(24), dy's Rule statements under under I.R.E. missible Rule added): following analy- first 10. is the court's oral foregoing statements Gray also offers the admissibility Roundy's regarding the sis exception to the hear- under the "catch-all” 803(24), say I.R.E. In order rule under Rule statements: under Rule for a statement to be admissible my that I stated in [F]or reasons I.R.E., find, 803(24), among must opinion, state- written I don't think that the things, that "the statement is offered other presented to me for review ments that major- of a fact.” The as evidence material any exception hearsay fall within stated ity of have held that a victim's courts rule. person only mate- of a is evidence of a fear And, therefore, going I’m stand enumerat- rial fact under the circumstances So I will allow that limit- written decision. i.e., (1) where a defendant raises ed above: interrogation Rodriguez ed as Mr. con- self-defense, suicide or accidental a claim of cerning particular suspect, this but I’m not such death and the declarant-victim feared you get going into state- defendant; to allow (2) where the declarant- prior we in the hear- ments that addressed of a defendant is offered to victim's fear ing. that a claim the defendant rebut relationship victim with the defendant's following However, second oral 11. The is court’s good. at least one court has analysis regarding admissibility of Roun- person a stated fear of a held that victim’s 803(24) (emphasis probative identity dy’s of the Rule statements under is and, therefore, added): evidence of a material killer Gause, Ariz. fact. See State v. I at least right. All have ruled this (1971). P.2d opinion a written twice before. issued opinion is Because this court date, pointed time I an earlier person's mind is evidence of one state of majority courts have held out that the minimally only probative of the state of person fear of a is victim's stated another, the view mind of and because only a material fact under the evidence of would, effect, Gause, adopted supra, in Rule sub circumstances enumerated person’s one state of allow evidence of is, 24; part that where a defendant raises to be introduced as evidence mind suicide, defense, of self accidental claim (i.e. per- of another it would state mind death, such victim feared declarant particular person mit a victim’s fear of defendant, and where the declarant victim's probative evidence of such be introduced to rebut a fear of a defendant offered intent), person’s court is murderous by the defendant’s claim defendant majority view. inclined follow relationship good. with the victim Therefore, having concluded herein Roundy's statements that she feared Therefore, me that Reeda seems to not fall her such do reasons fear for Roundy's she feared Mr. statements that circumstances which within either of the such and her reasons [sic] admitted Dier would allow the statements fear *11 644
again,
court
Penry,
mentioned the “rea-
121
(quoting
S.Ct.
1918
Williams,
1495).
is,
404,
529
sons” for
fears —that
the facts
U.S. at
120 S.Ct.
Because the
concerning her former lover’s behavior—
Idaho state courts did not
apply
pertinent
in
only
only
passing.
Nev-
constitutional rules es-
general
Court,
by
Supreme
tablished
discussed
er did the trial
indicate that
below, they applied an
requisite
legal
incorrect
stan-
guarantees of trustworthiness
Thus,
“contrary
Instead,
that,
gov-
dard.
to” clause
lacking.
it is apparent
case,
only questions
erns
and the
given
rulings, any
the trial court’s
offer
(1)
remaining are
whether there was con-
put
on a
to
witness
show trustwor-
error;
(2)
stitutional
“whether the er-
refused,
thiness would have been
on the
a
injurious
ror had substantial or
on
effect
ground
repeated
the evi-
—thrice
—that
Packer,
the verdict.”
a. Constitutional Protections
law,
clearly
by Supreme
both
established
2254(d)(1),
§
28
Under
U.S.C.
a
precedent, figure prominently
Court
in de
may grant
federal court
an application for
termining whether there was constitutional
a writ
corpus
of habeas
for a
adjudi
claim
First,
in this
error
case.
a state rule or
cated in a
only
state court if—and
if—that
ruling may
arbitrarily
a
deprive defen
adjudication “resulted in a decision that
dant of his right
present
defense
to,
contrary
or involved an unreason
right
present
on
witnesses
his be
of,
application
clearly
able
established
Second,
half.
a state rule or state judge
law,
Federal
as determined
the Su
justification
impose
not without
strict
preme
Court
United States.” The
evidentiary
er
standards on a defendant
Supreme Court has held that the clauses
desiring
present
testimony
a witness’
“contrary to”
applica
and “unreasonable
than
on
prosecution.
it does
independent
tion of’
meaning.
Pen
These rules emanate from the
Johnson,
782,
ny v.
532
121
U.S.
S.Ct.
general principles
system
our
1910, 1918,
(2001);
150 L.Ed.2d
justice, a defendant has the fundamental
362, 404,
v. Taylor,
Williams
rights
present
present
defense and to
1495,
(2000);
stances which would allow the statements
objection
issue and sustain the state's
to be admitted as evidence under Rule
that evidence.
part
sub
and it would also follow
that such
would
not be admis-
part
sible under Rule
sub
*12
409,108
minimum,
484
at
S.Ct.
Taylor,
fact.”
U.S.
right to examine
a
“as a
eludes
formally
him,
incorporated
Washington
testimo
646.
against
to
witnesses
the
offer
In
Clause into
Compulsory
Process
counsel.”
represented
and to be
ny,
499,
273,
the Fourteenth
Oliver,
257,
Due
Clause of
68
Process
333 U.S.
S.Ct.
re
added).
17-19,
(1948)
Amendment.
284, 294, 302,
S.Ct.
35 L.Ed.2d
93
present
a defense
witnesses
right
Webb,
98,
(1973);
409
at
93 S.Ct.
297
U.S.
in an
evidentiary
by applying
standards
19,
351;
at
Washington, 388 U.S.
87 S.Ct.
arbitrary
Washington,
uneven
way.
variously
has
stated
1920.
Court
Supreme
Court held
example,
right
to a
right
defense and
an accused’s
prevented
accomplice
a Texas rule that
emanate from the Sixth
present witnesses
ar-
a defendant’s behalf
testifying
from
on
409,
Amendment,
108
Taylor, 484 U.S. at
right
bitrarily denied
defendant
646;
v.
States
Valenzuela-
S.Ct.
United
a witness.
U.S.
testimony
388
offer
3440,
858,
Bernal,
867, 102
458 U.S.
S.Ct.
Rock,
23,
Similarly, in
87
1920.
at
S.Ct.
(1982),
Process
1193
the Due
73 L.Ed.2d
that Arkansas’
Court held
Supreme
Amendment,
of the Fourteenth
Clause
re-
hypnotically
all
per
excluding
se rule
2704;
51,
Rock, 483
at
107 S.Ct.
U.S.
in-
testimony
arbitrary
was an
freshed
2528;
Trombetta,
485,
467
104 S.Ct.
U.S. at
right
fringement of the defendant’s
1038;
Chambers,
294, 93
410 U.S. at
S.Ct.
a
testimony.
stated that
The Court
present
Oliver,
Webb,
97,
351;
409
at
93 S.Ct.
U.S.
testimony
not
may
state’s restrictions
Crane,
or both.
U.S.
tled to
Thomas
adduce.”
arguments
In
face of the
that were
the
(9th Cir.2001)
(emphasis
F.3d
it,
very
the trial court was
presented
added).
if the
“[e]ven
This is true
defense
proof
nature
the
it
specific about the
of
theory
“it is the
purely speculative,”
is
as
admissibility
to determine
needed
—“in
of
to consider the evidence
role
the
fairness, I
have a name identified
need to
presents
and determine ... whether
it
time,
statement,
place,
so
each
theories for how the
legitimate alternative
...
I can
at each statement
so
look
Vallejo,
crime
States
occurred.” United
you’ll
...
If
summarize
make a decision
(9th Cir.2001).
237 F.3d
We
in
oral offer of
me
a written or
for
the factual statements ex
conclude
I’ll
a look at each
proof, then
take
state-
surely
cluded
material to the defense.
were
it as
can and
analyze
ment and
best
ruling.” Gray
request,
this
make a
met
(ii) Trustworthiness
reports on each of the
submitting written
present.
trial
he wanted
The
A state sometimes
show witnesses
decision that
court indicated in its written
that it
not
a defendant’s con
did
violate
satisfactory, and did
affirmatively
the
rights by
demon
submissions
stitutional
not
live witnesses before
exculpatory
it
the
ask
assess
strating that
excluded
Instead,
unreliable,
the trial
making
its decision.
it was
ac
evidence because
situation,
court,
closest to the
consistently
stan
who was
applied
cordance
regarding
no
whatever
expressed
the
Court
conсern
example,
Supreme
dards. For
(1)
the trustworthiness of
testimony
state-
consisted of three factors:
ments,
(2)
fabricate;
the
of
ques-
and reached
merits
the
lack
spontaneity
of motive to
the
of
(3)
tion whether
contents
the state-
repetition; and
consistent
mental
ments were evidence of a material fact.
state of
In admitting
prose-
declarant.
was,
By
so,
trial court
it
doing
appears,
statements,
hearsay
however,
cution’s
assuming that
statements otherwise
did
strictly
trial court
not
adhere to this
requisites
admissibility
met the
for
under
Although
framework.
the trial court sub-
hearsay exception.
the catchall
jected
hearsay
by
most
submitted
test,
the state to this
case it
one
admit-
Moreover,
prosecution
conceded that
ted hearsay evidence
submitted
Roundy
these statements to
made
which
prosecution without evaluating its trust-
prepared
the witnesses were
to testify,
cases,
at all.
worthiness
other
when
clear,
stating: “I
to make
I’m
want
803(24),
admitting
under Rule
suggesting
making
witnesses] are
[the
trial court
not consistently require rep-
did
up....
people.
I’ve talked to these
And
etition; it did not consistently refer to the
yeah,
So,
these
made.”
statements were
of
mental state
Betty Gray;
declarant
the dissent’s reliance on the failure to
and,
referring
to the motive to fabricate
present
testimony
justification
live
factor,
just
it sometimes referred to
testimony
exclusion
notwith-
motive,
declarant’s
and sometimes referred
been
standing, there would have
no point
to both the declarant
witness’ mo-
calling
testify
witnesses
live be-
Further,
tives.
analysis
state’s
judge.
fore the
testimony
Live
whether
declarant possessed
credibility
essential for
motive
making
determina-
to fabricate consisted
regarding
simply
tions
the conclu-
whether the witness is tell-
sory statement that it
ing
Here,
appeared
Bеtty
truth.
no dispute
there was
Gray had no motive to
about
fabricate the state-
that.
ments.
Appeals
Court of
Idaho
nonethe-
that,
less
testimony
by Gray
concluded
because
offered
provide
adequate
proof
offer
fared well according
to dem-
standards
requisite guarantees
actually
onstrate the
trustworthiness
used
trust-
worthiness,
Roundy
court.
appeared
not support
“[t]he record does
to have no more
the assertion that the
motive to fabricate
district
abused
her statements than
*17
Gray,
its
did
excluding
Betty
Roundy,
Betty
discretion in
and
such evidence.”
like
795,
Gray,
129
repeated
Idaho at
The trial court’s for judging framework for thiness basis relied upon exclusion the reliability prosecution’s the court, appellate state the dis-
651 from whole” that error of a tion sent, explanation is an after-the-fact the habeas grant harmless —we must justified that could decision O’Neal, 437, at 513 115 explana- petition. The U.S. it was made. on which basis Kotteakos, 328 at (quoting rec- 992 U.S. comport with either the S.Ct. does not tion Fisher, 1239); 765, 263 at 66 S.Ct. F.3d standards or the trustworthiness ord such, actually applied. As 917-18. trial court approving decision Appeal’s the Court some fur precedent provides Our is Roundy’s statements the exclusion guidance applying imprecise ther example application simply another A doubt” standard: 55% likelihood “grave and therefore arbitrary, asymmetrical, “hardly was harmless is error rulings in this evidentiary unconstitutional ... and a ‘fair assurance’ harmlessness case. have chance that defendant would 45% com- that the state courts We conclude certainly error acquitted but been ” arbi- they error when mitted constitutional ‘grave like a doubt.’ United seems to admit state- trarily refused (9th 422, Hitt, v. F.2d 425 n. 2 States 981 implicating Dyer. ments Cir.1992) Kotteakos, 328 (quoting U.S. 1239). words, 765, 66 In other S.Ct. Injurious Effect and 3. Substantial harmless, the trial error we must find Influence more considerably that there was conclude we re last issue that must a 55% likelihood that error The than is the trial court’s error solve whether jury’s not affect the verdict. the standard articulated
harmless under standards, we Applying these McAninch, v. 513 U.S. Brecht O’Neal concluding that the trial difficulty no have 432, 436, 437, 130 L.Ed.2d 115 S.Ct. to disallow evidence court’s decision (1995).13 The standard 947 Brecht/O’Neal was not regarding Dyer harmless. first whether the trial requires that we ask Gray was en against affirmative injurious effect had error “substantial far from over tirely circumstantial and determining jury’s ver or influence in against Dyer whelming, while the evidence Brecht, 113 S.Ct. dict.” 507 U.S. possi with a provided would States, v. United (quoting Kotteakos question that answer to the critical ble 750, 776, 66 L.Ed. the defendant’s defense arises whenever Roe, (1946)); see also Fisher Then commit the crime: he did not Cir.2001). (9th If we are F.3d who did? answer “grave doubt” point, the nature and is, “fair to the first if we do not have a As question—that assurance, against Gray: case hap strеngth all pondering after comments, made on three dif- judge’s ac- stripping the erroneous pened without *18 Cir.1990) (7th (Ea F.2d does address the Brecht 13. The warden not ster-b brief, rook, J.) focusing ("Procedural apply gov ex question anywhere in his rules argument clusively defendants.”). the that no constitu on we As well as ernment as has not tional error occurred. This circuit this government that convinced the are government’s the failure decided whether had could meet the Brecht standard case not consti address in a habeas case harmlessness addressed, day the we leave to another it been issue, although a there is tutes waiver of on question a waiver rule whether enforce law the Seventh Circuit so indicat case from government argue if the does habeas McGinnis, ing. 963 F.2d See Holland was harmless. asserted constitutional error (7th 1992); O’Leary, 1057-58 Cir. Wilson v. occasions, best guide ently are the than the jury ferent and afforded evaluating strength of the case. weight the state’s to the evidence than did different judge ques- The trial first addressed the the jury may in this case and have tion on defendant’s initial motion for ac- drawn the evi- different inferences from quittal: dence ... very Frankly, I’ve been troubled added). doubts, (emphasis Despite his the strength the throughout the case as to judge determined that was suf- there the state’s case. It’s obvious some- support jury’s ficient evidence to the ver- crimes, these terrible one committed dict, “I opining hope while and trust linking the state’s evidence the crimes the matter will be so can have appealed we been minimal. defendant has another as to view whether there was suf- question The I have to decide is ficient evidence.” any jury whether or not reasonable Later, deciding impose beyond find a could reasonable doubt penalty, judge death the trial specificаlly that the defendant committed crime. summarized evidence that led him to Admittedly, evidence is on equivocal have a “lingering or residual doubt as to that issue. guilt the defendant’s of the crimes for judge nonetheless decided to “reserve which he has been convicted.” Those ruling that motion and see what the facts, stated, judge were: jury When the a decides.” returned (1) steadfastly The defendant has main- guilty for acquittal verdict and the motion tained his innocence. renewed, again judge was summa- (2) The state was unable produce concerning rized views strength weapon. murder the state’s case: (3) The identify any state was unable to I throughout must admit that the tri- finger prints of the defendant to link al, waiting I kept pres- for the State to him to the crimes. evidence, ent finger- conclusive such as (4) The produce state unable to prints, eyewitnesses, that would tie the convincing footprints evidence
Defendant to crime scene ... and found at the scene the crime were frankly, in. it did not come evi- those of the defendant. was, part, dence the most if not (5) The state was unable to entirely, conclusively circumstantial evidence. establish that the hairs question is: found was and Was there [TJhe scene of the were from crimes the defen- submitted evidence so that sufficient dant. jury could that this find Defendant
the individual who did (6) commit Although witness testified that he crimes ... green saw defendant in a Interna-
I given good this case deal tional Travelall vehicle at a hospital thought, and it has been a case troubling parking approximately lot 3.5 miles from to me.... Had this Court been on the the crime in the early morning scene jury, crimes, I perhaps have day would evaluated the witness also differently than mem- other testified that the man he saw had no jury. when, fact, bers have deter- facial hair at that time the *19 mined the credibility witnesses defendant had a full beard.14 of differ- 14. tending To these observations could be evi- added: dence to show the that defendant did
653 Cir.1996) 1347(9th context, 1343, In that physical the in the and paucity Given “support[ing] evidence alternative theo- one can infer that testimony, eyewitness ry might of the crime have been com- to- how concerning anger the evidence likely mitted” to be “crucial to the de- murdering is his wife motive and ward a fense.”16 Id. seeking she divorce—was was her —that jury’s in the delibera- great importance alter- likely importance Nor is the of an Indeed, the prose- the substance
tions. Dyer suspect native diminished because argument began by focusing closing cutor’s In consid- only suspect. was not the such had the and question of who motive on the ering thing wrong the impact “the done women, two murder the temperament own, men, on the minds of other not one’s the that and endeavoring show Kotteakos, setting,” in the total suspects aside from possible other two 764, 66 we are to make a asked Dyer did not.15 likely reasoning pat- the judgment about at the Looking closely terns of others. ledger the decid- On the other side of jury to make record before order whether the standard ing Brecht/O’Neal there that we note that while judgment, met is nature of the evidence has been possible oft was that the two other recog- As has evidence excluded. this court and a motive nized, suspects, Riley, the de- Leavitt had against where evidence murder, that there was no evidence purely is circumstantial and fendant do identity, either threatened to so “jurors expressly had issue is therefore pivotal themselves, had with do- naturally ‘If the and taken actions consistent ask would crime], (stalking, keeping with ing up so didn’t who [commit defendant whereabouts). Crosby, F.3d States v. did?’” United crime, Roundy including his to introduce the statements doctor’s not commit impor- representing, repeatedly, great physically capable its testimony he was not plan its alleged; Mackley’s tance did the defense abandon riding bicycle as Dyer, reasoning that to do suspicion cast precise testimony concerning the make and evidentiary support so no would had seen was not color of vehicle he ironclad; counterproductive. there the consideration regarding credibility of the issues some noteworthy when we repeatedly, is It 16. testi- relatives who victim’s defendant’s likely impact consti considered against the fied defendant. error, particular note tutional we have taken case, prosecution's strength of the jury Dyer presented was not as a strong, recognizing that where that case is not suspect. present possible Unable might oth evidentiary other matters that him, concerning Roundy the de- statements consequence poten take on erwise be of little investiga- not from the fense elected to elicit See, significance. e.g., tially dispositive Sas suspect. Dyer was also As tors the fact Roe, (9th 230 F.3d sounian v. Gray's passage quot- in the explained counsel Cir.2000) ("It cannot be that the other said 660-61), (post, the dissent without ed in at trial so overwhelm evidence amassed was Roundy indicating Dyer had ing the same that the would have reached to kill one the vic- stalked and threatened [material even if had not considered the result so, bringing up do and had means to tims White, it].”); v. properly not before Eslaminia investigated fact that he had been (9th (error Cir.1998) was F.3d help suspect of no would have been part "prosecution because the harmless defense. overwhelming”); Hanna case was far from Cir.1996) Rivetand, (9th sug- 87 F.3d incorrect The dissent therefore J., (error (Wright, concurring) not harm gesting the defense conсeded useless- prosecution's contrary, To the less because evidence. ness overwhelming). unsuccessfully trying three times only after *20 it,
Further, it critically, prosecution whether seems that the believed and that counsel, us, dissent, trial or was if Roundy or to defense aware that that was a better or worse alterna- Dyer Dyer introduced, statements about it than the two is not tive other suspect likely was that there would alibi evi- Rather, we been question. have admon- dence as well. judge “one must others’ reac- ished that affairs, From amorphous state of own, not his allowance tions Dyer dissent concludes that had a might for how react and not be others alibi,” post “valid and unchallenged regarded acting generally without rea- and that court’s exclusion of the son.” 1239. Viewing Id. Roundy concerning Dyer statements that, light, the record that we conclude therefore harmless. The truth is that we given overall weakness the state’s have no idea—and more importantly, case, the Dyer had evidence been before record, jury, present on the had no idea— them, ... jurors general- one or more “not Dyer’s whether or not alibi would have ly could have acting without reason” been “unchallenged” been or whether it was swayed. juror might reasonably A decide know, all Dyer “valid.” For we might that Dyer signif- evidence lessened the presented have only his alibi to be deci- stronger parts icance of one of the of the sively impeached, Perry Mason-style, on anger against Gray, case his at his wife cross examination. possibility That is not her; having and motive to murder so de- particularly Dyer only far-fetched: de- juror thereby termined such could be nied being Oregon but also “denied pushed harboring a over into reasonable knowing Roundy, much about Reeda least, doubt we guilt. At harbor time, seeing long her in a certainly not juror a “grave “not ... doubt” no her, her, harassing threatening following generally acting without reason” could her, anything or of that sort.” Had four have so reacted. To our conviction that witnesses testified to applying the standard we Brecht/O’Neal contrary, possible is the jury must grant petition, habeas the dis- regarded would not have as a Dyer truth- objection sent’s principal are oth- —there ful person representations regard- whose ers, have but we believe we answered ing his night whereabouts on the them explaining in the course of our own murder were be believed. alibi, reasoning had an so —is is, course, This last scenario an exer- the jury swayed would not have been cise in speculation. recognize But so to is threatening evidence of his behavior. only to highlight embarking upon testified, Dyer never whether before the speculation concerning how the trial would
jury offer proof, and except for have unwound had the evidence excluded an attorney’s statement that he claimed to been admitted inconsistent with our role Oregon been in small town in at the in determining whether there was Brecht/ murders, time of the no details the alibi (or any O’Neal error other version of appear in the record. do not We know rule, matter). harmless error for that precisely was, where he said what he he Kotteakos, with, forebear, said its doing, he was he Brecht and who make alibi, whether clear that there is corroboration of the a trial error is harm- considered or whether there is less any only evidence that if the actual in the case alibi is not true. All we know would have reached do is that he the same verdict ab- provided some sort of sent he was the error. “The test under Kotteakos out of murders, Idaho at the time of the is whether the error ‘had substantial and
655
that we
diсtates
precedent likewise
Our
influence in determin
or
effect
injurious
”
trial,
Brecht,
but
hypothetical
507 U.S.
not construct
must
verdict’
ing
jury’s
added)
of the trial er-
(emphasis
the effect
637,
1710
instead consider
113 S.Ct.
at
776,
Kotteakos,
66
U.S. at
In
328
verdict.
jury’s
actual
actual
(quoting
ror on the
629,
1239);
at
113 S.Ct.
id.
1039,
see also
Hanna,
stated that:
S.Ct.
F.3d
we
87
1710(trial
to harmless-
“is amenable
error
in ha-
inquiry
error
proper harmless
“the
...
‘may
analysis because
error
ask,
judge
is for the
proceedings
beas
in the context
assessed
quantitatively
he or
facts,
record’s
whether
based on the
in
to deter
order
presented
other evidence
substantially
‘that the error
she believes
”
”)
the trial].’
it had on
effect
mine [the
(emphasis
jury’s
decision?’
influenced
(alterations
Arizona v.
original) (quoting
in
added).
any
case to
are not aware
We
279, 307-08,
Fulminante,
111
499 U.S.
is,
in
a case which ex-
contrary
—that
(1991)); Kot
L.Ed.2d
have
adjudged
cluded evidence
teakos,
constitutional III. Conclusion jury, upon a reasonable expected to have Idaho’s applied the trial court Because upon it had rather what effect very in two different rules of evidence at hand. in the case guilty verdict prosecu- whether the ways depending on looks, we have review Harmless-error evidence, presented defense tion or the said, on which the to the basis rights. Gray’s constitutional it violated inquiry, verdict. The actually rested its Therefore, whether, harmless. words, in a trial This error was is not in other error, grant guilty the trial court’s REVERSE occurred without we ren- surely have been the warden judgment would summary verdict dered, verdict guilty with in- but whether district court to the REMAND surely trial was actually writ, rendered requiring grant structions error. unattributable Gray to trial bring of Idaho to the state of time amount a reasonable (internal again within (alterations quotations original) custody. omitted). him from release citations Green, TROTT, 155-56, Judge (Concurring Circuit nia v. *22 (1970). 1930, dissenting part): S.Ct. 26 L.Ed.2d part, 489 case, my order a colleagues In new this hearsay exception, Idaho’s residual un- murdering trial for a man convicted of der which challenged statements were my and a In judg- former wife friend. admitted, firmly rooted hearsay ment, ground for errant order is their this 817, exception. Wright, at 497 U.S. 110 than that was not nothing more he allowed However, Betty’s S.Ct. 3139. statements stale, pointless, his defense introduce particularized guarantees bore of trustwor- untrustworthy hearsay evidence ex- presented The government thiness. by the trial court and Idaho’s Court cluded testimony live of Joanne Buceóla as to the irrelevant, inadmissable, of Appeals background Betty’s situationаl state- Thus, agree I although immaterial. with subjected ments. Buceóla intense colleagues’ my much of otherwise excellent by Gray’s cross-examination counsel. She respectfully on opinion, I dissent the dis- Betty spontaneously testified that uttered positive issue. statements, them repeated several
times, and
inwas
an excited state when
I
she made them. As the federal district
observed,
correctly
court
the trial court
Hearsay
engaged
precisely
type
of careful
My colleagues conclude that
process that the Supreme
suggested
Court
judge
Idaho’s
courts
appellate
necessary
protect
the Defendant’s
guilty
asymmetrical application
rights under
the Confrontation Clause.
with
evidentiary
state law
standards
re-
814-16,
Wnght,
497 U.S.
tion hearsay only Clause countenances if it adequate demonstrates of reliability indicia Reeda Statements (1)
either by
falling
firmly
within a
rooted
(2)
hearsay exception;
bearing рarticu-
preclude
The trial court’s
decision
larized guarantees of
introducing
trustworthiness. See
from
certain out-of-court
e.g.,
805,
Wright,
Idaho v.
497 U.S.
made
Roundy
statements
Reeda
about
(1990);
S.Ct.
suspect
L.Ed.2d 638
alternative
violate
Roberts,
56, 62-63,
Ohio v.
constitutional
and it
rights,
was ful-
(1980);
ly
evidentiary
107 S.Ct. relied Mississippi, wholly proffer Chambers v. on his own oral as to what (1973); L.Ed.2d 297 if say S.Ct. the witnesses would allowed Texas, 14, 22, Washington testify. U.S. point, Gray’s At one trial counsel (1967). 1920, 18 L.Ed.2d request- stаted the record he was “the ing opportunity to call these wit- trial court to differ- Although the came During argument, Gray’s nesses.” oral regarding the women’s ent conclusions two appellate forthrightly counsel admitted statements, I am somewhat similar satis- that trial request counsel’s referred to call- fied distinction between substantial ing testify these witnesses to proof as articulated front of parties’ offers jury, calling them front of the clearly by Appeals Idaho Court judge to provide situational back- that the trial court did not demonstrates ground of the statements. The record act arbitrarily. majority is mistaken appellate supports counsel’s characteriza- in its claim the two victims’ *24 tion of the events. “parallel,” Judge statements were as Wood’s and the of Appeals’ Court decisions Simply trial precluded because the court Thus, asymmetrical demonstrate. no Betty’s Reeda’s statements and admitted amounting treatment to a constitutional statements does not demonstrate that violation occurred. Gray’s court trial violated constitutional part proof,
As of its offer of the state rights, Gray’s far opportunity from it. to witness, Buceóla, presented a Joanne who lay proper a foundation was in the trial in person presence testified out of the of court. He did not avail himself of that jury background about the situational opportunity, and it is not for the federal Betty’s statements. Buceóla described to remedy courts his failure. The notable Betty’s for the judge harried state-of- qualitative govern- difference between mind, repetition her consistent of the Gray’s ment’s offer of and proof offer statements, sponta- the fact Betty and proof well as the legal manifest differ- statements, neously uttered re- between satisfy ences the two submissions sponse lеading questions. to any The trial me that the trial did not act arbi- judge specifically relied on Buccola’s de- so trarily deprive Gray as to of his due meanor and testimony detailed in conclud- right process present As defense. ing Betty’s out-of-court statements Wood Judge correctly response noted bore particularized guarantees sufficient of Gray’s attempt evidence, to use trustworthiness to admitted under the right defend does not right include the exception. residual hearsay I underscore so to do with inadmissible evidence. This judge
here that observed this short Gray’s is the answer to meritless stand, witness on the listened to her testi- claim he allowed to defend mony, and made determination rele- himself.
vancy admissibility and that is entitled to
deference. about More relevance later. II contrast, Gray’s proof, in offer of includ- Injurious Substantial and provide ed no witness a situational Effect or Influence background Roundy’s In- statements.
deed, Gray never asked trial court if Even were I to start from the flawed he could call such a proposition witness out that Judge Berzon’s constitu- presence jury provide analysis regarding such tional exclusion flimsy how the excluded To demonstrate is cor- alleged statements Reeda was, not, only to look I con- one need rect, I do respectfully which description deci- counsel’s Judge Wood’s own nevertheless clude disputed for which it was purpose and the irrelevant preclude sion to not have a “substantial absolutely did to the trial court: being offered jury’s on the or influence” injurious effect you. Judge, Thank our MR. RADIN: Abrahamson, 507 U.S. verdict. Brecht defense, key to our defense is to 123 L.Ed.2d 113 S.Ct. haven’t suspects. the other We discuss (1993). Here, whatsoever I have no doubt Judge. They were sus- up, made this When one examines about this conclusion. Dier, Leavitt, LeRoy pects—J.W. im- asks what evidencе and the excluded suspects all in the Hugh Riley' —were jury, have had on it would pact police officers. minds much.” is at best “not my view answer The alibis of They’re investigated. all needs to con- problems, one Among other impor- checked. it’s all three were So would package what the whole sider here understand, us, you I hope tant for admitted had the evidence been have been in this express any thing if I can one promised then countered as hearing, key is that the to our morning’s enough to examine It is not prosecution. at least discuss with defense is to from its evidence divorced disputed suspects. the other the rest of the record. context and *25 as They can their own conclusion draw Dyer and police investigated had at least one. But we have to This to each had a valid alibi. concluded that he to them. picture make the whole known Dyer’s alibi would neutralizing evidence admissible, recognized as have been you But can’t do it THE COURT: 419, 115 Whitley, 514 U.S. Kyles v. evidence. through inadmissible (1995), to demon 131 L.Ed.2d get MR. RADIN: Let me to that. by investigation conducted strate that very is testimony regarding J.W. Dier and not police comprehensive the court to let asking We’re important. admitted at trial shoddy. Gray’s counsel- 80324(sic). That’s the it in under Rule allegedly inculpa- that if he introduced the catchall. evidence, would call tory prosecution alibi. testify Dyer’s about the officers Counsel did not attack p. E.R. story. part RADIN: It’s MR. a fraud. suggest alibi or that was Dyer’s individuals. His Dier is one of those fact, referred to Gray’s In counsel Rodriguez’s brought to Mr. name was
just a and even admitted “suspect” Roberts, Riley, Hugh by attention Vada sus Dyer was not the best “alternative Roundy. Roundy, Clayton Ann Ruth Indeed, that other sus argued he pect.” Dier’s full name? THE What’s COURT: and that likely Dyer, more than pects were jurors have a “com just he wanted MR. RADIN: J.W. Dier. According of the situation. plete picture” MR. James. MULLIGAN: counsel, just the third on the Dyer was right. THE All COURT: Betty # 1 Suspect “possibles.” list of these As a result of what MR. RADIN: lover, Leavitt, discov
Gray’s current who said, in his Rodriguez Mr. four witness police. called the Sus ered the bodies and They Mr. Dier. lover, looked into department current # 2 was pect They spoke to him his alibi checked Hugh Riley. directly. fact, said, they tape-recorded And like I he prosecutor] [the can that conversation. bring out length on cross the of time. He can bring out that Mr. Dier was we Mr. Rodriguez, So intend to ask investigated. He did have an alibi. your permission, whether there were Now, They can all bring of this out. possible suspects. other he We’re saying that he’s the best say, suspect We eliminated him. why? And that we can show that he very And that would Mr. committed the proper crime. prosecutor] bring Kane out. [the But is entitled to know that
But we to Mr. Rodriguez would like ask that there were suspects, other that they if possible there were other suspects and were investigated by the office, they investigate what did or didn’t do to sheriffs why they investigated. suspects. those other added.) (Emphasis [May 12 & 14 hear- Dier was one of them. We have not ings] made up. his name It came forward police these other individuals. fill To out this picture, here part prosecutor’s response offer McCandless,
Mr. while he’s on the of proof. stand, he was the one who actually
checked the alibi. He’s the one who MR. Finally, KANE: if I could make actually Riley. interviewed Mr. proof, offer of prepared we are prove prove and would that Mr. Dier was in a ISo part would like to ask him: As different state at the time the killings your investigation you check into went I down. don’t think [the evidence] any possible suspects other including is relevant for that reason. Mr. Dier? 2,1993] [June Yes. Judge note here that pre-trial Wood’s you What did do? *26 hearsay relevancy ruling left the door open
Well, I did check on his alibi.
Gray’s
pursue
counsel to
attempt
I don’t want to
into
get
hearsay, but I at
show
Dyer
was one of the other sus-
least want to
out
bring
that he
awas
pects. However,
reasons,
for tactical
possible suspect and the
why.
reasons
defense did
advantage
not take
of this
If you want to reconsider your other
opportunity.
In explaining why during a
decision [regarding Betty Gray’s state-
trial,
motion for a new
the lack of proba-
ments], that’s,
course, always
up to
tive value of this evidence again becomes
you.
point
just
But the
I
being that
apparent.
I
note also that
counsel
don’t know how we can keep from the
had the opportunity
Dyer
to call
himself to
jury a possible suspect that was investi-
the stand but decided not to do so. This is
gated by the sheriffs office itself.
It’s yet another reason that
my
undercuts
col-
like not telling them the
story.
entire
leagues claim that Gray was somehow not
allowed to defend himself.
Roberts,
you
If
look at Vada
if I could
encourage you,
you’ll
I’m
Now,
sure
read all of MR. RADIN:
I am fully aware
them, but Vada Roberts
very specific.
and the court did tell
the defense
It
just
occurred
nine short
prior
months
through counsel that we could mention
to her
very
death.
It’s
detailed as to
the name
Dyer.
of Mr.
We could have
Reeda Roundy’s concerns and the rea-
asked
Rodriguez
Detective
if such a sus-
sons for her concerns.
existed,
pect
expecting
and
that he
another,
honest,
Dyer’s, from the statements
he
have
would
have been
would
was correct. On
Roundy.
Judge Wood
“Yes,
said,
suspect.
have a
We
we did
hand,
was
other
the record
loaded
Dyer.
Mr.
His name
were ware
Betty Gray,
Reeda
out,
it
and even-
up. We checked
come
target
killing.
of this
Roundy was the
suspect.”
him as a
tually we discounted
we were
strategy, Judge,
But as defense
put
way.
me
it this
Let
to convince
obviously trying
at the trial is the fact
what relevance
Of
were
Gray
from Mr.
there
that aside
suspect,
X
until it was discover-
that was a
Riley,
Hugh
Mr.
suspects. There’s
other
dead at the
investigation
that he was
ed
and
Roundy,
the lover Mrs.
who was
com-
time of the crime and could
Leavitt, who was
LeRoy
Mr.
there was
what relevance at the trial
mitted it? Of
we had
Gray.
Mrs.
And
the lover of
it
suspect,
that X was a
until
is the fact
testimony.
gentlemen
Those
some
jail
he was in
at the
discovered that
was
testify.
here to
Similarly, of what
of the murder?
time
him
simply have
bring
and
To
at this trial that X was a
relevance is it
come
it,
Rodriguez simply
deny
or have
it
discovered that he
suspect, until
existed. We
say,
guy
“Yeah this
time of the murder?
was out of state at the
out,
come to
him
didn’t
checked
X
is that the fact that
The obvious answer
in effect to
have been
anything,” would
because it
is not relevant
suspect
was a
jury of
a vacuum for the
have created
He
nothing for the defense.
proves
facts,
just
like
it would have been
but he was cleared.
suspect,
have been
little
to throw out another
trying
kind of
night
day
having
It follows as
tidbit,
taken
I think it would have
murderer, nothing
as the
been eliminated
defense,
aspect of our
away the effective
earlier could be used
said nine months
he
look at
well,
take a hard
you’d better
might have committed
suggest that he
Leavitt,
take a
LeRoy
you’d
better
under these
of what value
the crime. So
Riley
alternate
Hugh
hard look
fact that he
was either the
circumstances
suspects.
earlier,
that nine months
suspect
was a
name,
feel,
just
Dyer’s
But
to mention
nasty about one of the
anything
he said
no
It would
good.
have done us
would
elimi-
All this evidence does
victims?
in a vacuum.
presented
have been
suspects is increase
nating one of the
guilty.
probability
10,1993]
[Aug.
circumstances, because
*27
a
Given these
my opinion
was in
Dyer
evidence
alibi which
Dyer had a confirmed
flimsy
evidence
attempt based
grasping
dispute,
and did not
acknowledged
nothing. The
counsel
something out of
to make
from the excluded state-
any inference
specula-
did it”
rank
“Dyer
idea that
was
killed the wom-
Dyer
tion,
ments
clearly
probative.
excludable as
misleading.
absolutely
en would have been
or circumstantial
no other direct
There is
any
is not admissible
Misleading evidence
or corrob-
adequately supporting
evidence
true, then
If this is
system.
in our
view,
contrary. Cer- where
orating this
counsel,
by Gray’s attor-
pushed
fact as
simple
meant to trial
tainly
disrespect
no
suspect,
a
Dyer
at one time
ney
flak
evidence. Shoot
it was
it prove?
What does
lucky
clearly irrelevant.
maybe
get
into the air and
we’ll
suspect
fact that another
How does the
correct-
something
Judge
will hit it.
Wood
help
he was cleared
but that
deciphering
existed
difficulty
out the
ly pointed
the defense.
behavior,
If
it hurts
anything,
defense.
intentions
person’s
one
(some-other-dude-
If
convincing
defense
counsel had succeeded in
The SODDIT
variant,
did-it),
judge
a
to admit this evidence and then
of which this is weak
prosecution
Dyer
watched the
demolish
years
of 23
in the criminal
my experience
suspect,
a
I’m sure it would have been now
only works when the evidence
courts
called blatant Strickland error on the
Here, it
pointing
plausible.
to that dude is
ground that
it hurt his client’s defense.
fact, Gray’s
In
simply wasn’t.
counsel was
Opening
police
this
allows the
door
aware that the
was use-
obviously
evidence
did,
thorough job
show
they
what
was the
less to show that
killer. This
they
eliminated
suspects.
other
This
explains why
only
it was
offered to show
hardly helps the defense. This concern is
suspects.”
against
“other
Measured
might
Ap-
not as far-fetched as it
seem.
eyewitness testimony and the
inculpаtory
pellate
during
appeal
counsel
the direct
Gray’s guilt,
other evidence
believe
the Idaho courts accused trial counsel of
resoundingly
harmless.
exclusion was
constitutionally
numerous counts of
defec-
going
was not
to believe that
representation.
tive
Mr. Radin has al-
killer,
Dyer was the
the evidence that at
Moreover,
ready
put
been
on trial.
“suspect,”
one time he was a
but out-of-
(9th
Phillips v. Woodford,
tion’s This is what we have here-a desperate albeit understandable attempt *28 Conclusion by muddy defense the waters. This close, case have been but the excluded doggedly repeat Our circuit tends its evidence, including “the whole picture” mistakes in though habeas cases even we it necessarily part, which was would not many have been corrected times fact, any have made it In very closer. it Indeed, Supreme beyond Court. well could have made it better for the pale say that we mildly have been Gray. State and worse for castigated abusing our habeas authori-
663 case, ty. Here is what the told us 1991 that “the court of Appeals Court based its in Estelle v. McGuire: grant solely ground of habeas relief on a state law that prejudged defendant.
We first consider whether the admis
clear,
As our discussion
prior injury
justified
sion of the
above makes
such
ruling
relief.
In
habeas
McGuire’s
provide
state-law violations
no basis for
rights
process
due
were violated
federal habeas relief.”
Appeals relied in
on its
part
conclusion
We attempt to avoid this clear constitu-
“incorrectly
evidence was
ad
restriction, however, by
tional
claiming
pursuant
mitted ...
to California law.”
that the state-law violation we falsely per-
Id.,
Estelle,
v.
902 F.2d
[McGuire
749]
ceive is so serious that
it violates due
[(9th Cir.1990)].
754
Such an inquiry,
process,
here,
and we do so even as
when
however,
part
is no
of a federal court’s
the state courts
definitively
examined
habeas review of a state conviction. We
the issue under state law and
declared
many
have stated
times that “federal
no state law violation
lapse
has oc-
corpus
habеas
relief does not lie for
curred. With all
Jeffers,
respect my
errors of state law.” Lewis v.
colleagues,
764, 780,
3092,
497
legal
U.S.
110 S.Ct.
111 not even
can
legerdemain
accomplish
606, (1990);
L.Ed.2d
Pulley
see also
v.
such a result. To pull a rabbit out of a
Harris,
41, 104
37,
871,
465 U.S.
S.Ct.
79 hat, the hat must contain a rabbit before
(1984). Today,
reempha
L.Ed.2d 29
we
Here,
the trick
starts.
hat has no
province
size
it is not the
of a
rabbit, but we pull one out of it at the
federal habeas court to reexamine state-
expense
State’s unwarranted
nevertheless.
ques
court determinations on state-law
Dyer was not in
respect
there. With all
review,
tions.
In conducting habeas
a my colleagues I believe we have far ex-
federal court
is limited to deciding
authority
ceeded our
in ordering a new
whether
conviction violated the Consti
trial in this case based on the exclusion of
tution, laws, or treaties of the United
my
irrelevant
hearsay.
respectful judg-
2241;
§
States.
28 U.S.C.
Rose v. ment,
only
have we mistreated Idaho
19,
Hodges,
175,
423
21
U.S.
96 S.Ct.
refusing
apply the relevant habeas
177,
(1975)
curiam).
One can implications miss the that unnecessarily noted old retrying cases the Court’s references to Lewis v. that, Jeffers “imposes significant ‘social costs’ Pulley cases, and to v. Harris. In those among things, other society’s frustrate in- we authority exceeded our and were re prompt jus- terest administration of versed. Footnote 2 passage from this Id., 637, tice.” 113 U.S. S.Ct. 1710. Estelle is also instructive about another simply Our order here orders a new trial our It unsuccessful cases. references at which it will proved could Cir.1989), (9th McCarthy, F.2d Blair murder, not have committed the thus 807, granted, rt. 111 S.Ct. ce tightening Gray. the noose.around 112 L.Ed.2d vacated as moot and remanded, Thus, although concur in the excellent U.S. 112- (1990) *29 says L.Ed.2d 391 about that Judge opinion, remainder Berzon’s part that re- respectfully dissent from petition. granting
sults America, STATES of
UNITED
Plaintiff-Appellee, SANCHEZ-CERVANTES, aka
Juan Quiroz, Quiroz
Hugo Quirox, Quiroc, Quiroz
Trejo, Tapia, Defendant-
Appellant.
No. 98-35897. Appeals,
United States Court
Ninth Circuit.
Argued and Submitted Nov.
Filed March 2002.
As Amended March