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Sutherland v. Woodford

June 17, 2009



Petitioner is a state prisoner proceeding through counsel with a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a judgment of conviction entered against him on April 5, 2002 in the Shasta County Superior Court for second degree murder in violation of California Penal Code § 187(a). He seeks relief on the grounds that: (1) the admission into evidence at his trial of the statements of a non-testifying accomplice violated his rights to due process and to confront the witnesses against him; (2) the admission into evidence of his statements to his friends over the telephone violated his right to due process because the evidence resulted from the use of coercive interrogation tactics; (3) jury instruction error violated his right to due process (claims 3, 4, 5, 6, 7); (4) the prosecutor committed misconduct; and (5) the California Court of Appeal improperly refused to address meritorious appellate arguments, in violation of his right to due process and appellate review. Upon careful consideration of the record and the applicable law, the undersigned will recommend that petitioner's application for habeas corpus relief be denied.


The evidence, viewed in a light most favorable to the judgment (People v. Carpenter (1997) 15 Cal.4th 312, 387, 63 Cal.Rptr.2d 1, 935 P.2d 708), reflects the following: The victim, Thomas Sparks, was a registered sex offender who had spent some time in state prison, apparently on a conviction related to child molestation, and who purportedly was involved in methamphetamine transactions.

Sparks was acquainted with Kimberly Raible, who was aware he had been in prison but did not know the nature of his conviction. She assumed it had to do with methamphetamine.

On the evening of January 20, 2001, Raible was staying at the home of Michael Wayne Griffith. Sparks called, told Raible that he was in the area, and said he wanted to visit her at her home. Raible replied that Sparks would have to come to Griffith's house to see her.

That same night, defendant and his friend, James Shane Taylor, had met Sparks at the home of a mutual acquaintance. Sparks asked them for a ride to Raible's house and offered to give them methamphetamine in return. Defendant and Taylor took Sparks to Raible's home and then went to Griffith's house. They told Raible that they had left Sparks at her house and that they were there to take her home.

At this point, Carla Cline, who was a long-time friend of Raible's, told her that Sparks was a child molester. Raible became very upset, and defendant called Sparks's former mother-in-law for confirmation. When the news was confirmed, Raible said she did not want Sparks in her home. Defendant and Taylor stated they would go and get him out of the house. Defendant said they would need "a pipe or something." Defendant, Taylor, and Cline then left in defendant's mother's car, which defendant was driving that night. They took with them a pipe wrench that Griffith had on his front porch.

When they arrived at Raible's house, Cline took a plate into the bedroom and began preparing lines of methamphetamine. After Sparks entered the bedroom and sat next to Cline on the bed, defendant and Taylor rushed in and attacked him. They beat Sparks with their fists and hit him on both sides of the head with a blunt instrument with sufficient force to knock holes in his skull. The attack ended when Cline said Sparks had had enough. The group left him on the bed and took defendant's mother's car back to her house, where they left it. Eventually, they made their way back to Griffith's house.

Thereafter, defendant and Taylor left Griffith's house and went to where Darlene Deptuch was staying. Deptuch knew Taylor but did not consider him a friend. Taylor told her that they needed to borrow her car, a green Ford Explorer, and said they would give her $60 for its use. Deptuch did not want to let them take her car but felt she had no choice in the matter.

Deptuch testified that she had cleaned the car inside and outside the day before. But when defendant and Taylor returned it, the car was a mess. There was soda sprayed all over, there were cigarettes and splinters in the car, there was mud all over the outside, and the car had a foul smell that she could not identify.

It is apparent that defendant and Taylor used Deptuch's car to dispose of Sparks's body. The body was discovered about a week later in a remote area of the county. It had been pushed down a steep incline where Taylor's brother, a rancher, occasionally had disposed of dead sheep. Blankets and other bedding materials that had been taken from Raible's house, including a sleeping bag, were left near the body. Correspondence left with the bedding materials led investigators to Raible's house. There they discovered that Raible's mattress had been turned over and that the underside was saturated with the victim's blood.

Cline entered into a plea agreement pursuant to which she pled guilty to voluntary manslaughter with a maximum sentence of 11 years and agreed to testify at trial.

Taylor entered into an agreement to dispose of this case, as well as a number of unrelated charges pending against him. He pled no contest to voluntary manslaughter in this case, and to a number of other charges, in return for a stipulated sentence of 21 years. Taylor's plea agreement did not require him to testify at trial, and he invoked the right not to testify.

Defendant was found guilty of second degree murder. We will note other aspects of the evidence as necessary in connection with our discussion of the issues presented.


I. Standards of Review Applicable to Habeas Corpus Claims

A writ of habeas corpus is available under 28 U.S.C. § 2254 only on the basis of some transgression of federal law binding on the state courts. See Peltier v. Wright, 15 F.3d 860, 861 (9th Cir. 1993); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)). A federal writ is not available for alleged error in the interpretation or application of state law. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000); Middleton, 768 F.2d at 1085. Habeas corpus cannot be utilized to try state issues de novo. Milton v. Wainwright, 407 U.S. 371, 377 (1972).

This action is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320, 336 (1997); Clark v. Murphy, 331 F.3d 1062, 1067 (9th Cir. 2003). Section 2254(d) sets forth the following standards for granting habeas corpus relief:

An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim -

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

See also Penry v. Johnson, 532 U.S. 782, 792-93 (2001); Williams v. Taylor, 529 U.S. 362 (2000); Lockhart v. Terhune, 250 F.3d 1223, 1229 (9th Cir. 2001). If the state court's decision does not meet the criteria set forth in § 2254(d), a reviewing court must conduct a de novo review of a habeas petitioner's claims. Delgadillo v. Woodford, 527 F.3d 919, 925 (9th Cir. 2008). See also Frantz v. Hazey, 513 F.3d 1002, 1013 (9th Cir. 2008) (en banc) ("[I]t is now clear both that we may not grant habeas relief simply because of § 2254(d)(1) error and that, if there is such error, we must decide the habeas petition by considering de novo the constitutional issues raised.").

The court looks to the last reasoned state court decision as the basis for the state court judgment. Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002). When it is clear that a state court has not reached the merits of a petitioner's claim, or has denied the claim on procedural grounds, the AEDPA's deferential standard does not apply and a federal habeas court must review the claim de novo. Nulph v. Cook, 333 F.3d 1052, 1056 (9th Cir. 2003).

II. Petitioner's Claims

A. Admission of Hearsay Statements of Non-Testifying Accomplice

Petitioner's first claim is that the admission into evidence at his trial of the hearsay statements of James Taylor, a non-testifying accomplice, violated his rights to due process and to confront the witnesses against him and that the hearsay statements were inadmissible under California law. (Pet. at 6-14.) Petitioner raised these claims on appeal and in a petition for review filed with the California Supreme Court. (Pet'r's Lodged Docs. entitled "Appellant's Opening Brief Dated March 28, 2003" and "January 16, 2004 Petition fore [sic] Review in the California Supreme Court").

1. State Court Opinion

The California Court of Appeal described the background to petitioner's due process and Confrontation Clause claims and its ruling thereon as follows:

Defendant contends the trial court erred in allowing the prosecutor to introduce the extra-judicial statements made by James Taylor, who was one of the participants in the homicide.

Tara Burbank was Taylor's former girlfriend. They have a child together who, at the time of trial, was six years old. While the investigation of Sparks's death was continuing in late February or early March 2001, Taylor called and asked Burbank to meet him to discuss some matters. When she did so, Taylor told her that he was under investigation for murder and that other people were involved. He would not identify the others but did say one was then in the county jail and the other was at High Desert prison. He added that one was a sister, meaning a woman. He said that it was a "white pride thing" and that they were called on to take care of a man who had molested a niece or granddaughter of someone with whom they had been hanging out. He said the others could not finish the job so they looked to him to do so.

About a week later, Taylor arranged to meet Burbank again. He told her the police were on to him and he would be moving a couple of states away. Burbank became angry and asked what she was supposed to tell their son. Taylor said she could tell him that his daddy went to jail for killing a child molester.

Taylor exercised the Fifth Amendment right not to testify. Over defense objection, his statements to Burbank were admitted as declarations against penal interest pursuant to Evidence Code section 1230.

Defendant contends the statements were not admissible under Evidence Code section 1230, were admitted in violation of his right to confront and cross-examine witnesses, violated principles of due process, and should have been excluded pursuant to Evidence Code section 352.

Evidence Code section 1230 provides: "Evidence of a statement by a declarant having sufficient knowledge of the subject is not made inadmissible by the hearsay rule if the declarant is unavailable as a witness and the statement, when made, was so far contrary to the declarant's pecuniary or proprietary interest, or so far subjected him to the risk of civil or criminal liability, or so far tended to render invalid a claim by him against another, or created such a risk of making him an object of hatred, ridicule, or social disgrace in the community, that a reasonable man in his position would not have made the statement unless he believed it to be true."

Where, as here, the prosecution offers a hearsay declaration against a criminal defendant on the basis that the statement was against the declarant's penal interest, the prosecution must establish that (1) the declarant is unavailable, (2) the statement was against his penal interest when made, and (3) the declaration was sufficiently reliable to warrant admission despite its hearsay character. (People v. Lucas (1995) 12 Cal.4th 415, 462, 48 Cal.Rptr.2d 525, 907 P.2d 373.) Since Taylor exercised his Fifth Amendment right not to testify, he was unavailable as a witness. (People v. Duarte (2000) 24 Cal.4th 603, 609, 101 Cal.Rptr.2d 701, 12 P.3d 1110.) Accordingly, we must focus upon whether the statements were against Taylor's penal interest and were otherwise sufficiently reliable to warrant admission.

The fact that an out-of-court statement might be facially inculpatory is not in itself sufficient to support its introduction into evidence as a statement against penal interest. (People v. Duarte, supra, 24 Cal.4th at pp. 611-612, 101 Cal.Rptr.2d 701, 12 P.3d 1110.) When accused of criminal behavior, suspects often will attempt to shift blame or curry favor. (Id. at p. 612, 101 Cal.Rptr.2d 701, 12 P.3d 1110.) They may admit some complicity while minimizing their roles and attempting to place major responsibility on others. (Ibid.) A statement that appears inculpatory may, when considered in context, also be exculpatory or have a net exculpatory effect. (Ibid.) Accordingly, such statements must be viewed in context and, in order to be admissible under Evidence Code section 1230, they must appear "'specifically disserving'" to the declarant's penal interests. (Ibid.) In defendant's view, Taylor's statements to Burbank were not sufficiently disserving to be admissible under Evidence Code section 1230. We disagree.

Taylor admitted participating in a murder. Although he said others were involved, he did not minimize his own participation or attempt to shift primary blame to them. If anything, his statement that he was called upon to finish the murder when the others could not suggests he was the more deadly or cold-blooded of the killers. His statement that it was a "white pride thing" and he was called on by another person to take the victim out would only serve to make the killing more serious by tending to show premeditation and deliberation. (Pen. Code, § 189.) His statement that the victim was a child molester would in no way tend to exonerate Taylor, and there is nothing in the record to suggest that he believed otherwise.

We also take note of the circumstances under which the statements were made. Specifically, they were not made after an arrest or otherwise in the coercive atmosphere of an official interrogation. (People v. Duarte, supra, 24 Cal.4th at p. 617, 101 Cal.Rptr.2d 701, 12 P.3d 1110.) Indeed, they were not made in the face of an accusation at all. Taylor voluntarily arranged to meet Burbank so he could explain to her why he was laying low and then planned to leave the state. The usual motive to curry favor by implicating others or to shift blame in the hope of leniency did not exist in this case. This is relevant both in placing the statements in context and in determining whether they are otherwise sufficiently reliable to warrant their introduction into evidence. (Id. at pp. 612, 617, 101 Cal.Rptr.2d 701, 12 P.3d 1110.) When we consider the statements on their face and in light of the circumstances in which they were made, we conclude the trial court did not err in finding them admissible under Evidence Code section 1230.

Defendant contends, however, that introduction of Taylor's statements violated defendant's constitutional right to confront witnesses. In this respect, he relies upon the decision of the United States Supreme Court in Lilly v. Virginia (1999) 527 U.S. 116 [144 L.Ed.2d 117] (hereafter Lilly ). The conclusions made in Lilly present a mixed bag. In the circumstances of this case, Lilly does not support defendant's contention.

In Lilly, it appeared that three men entered into a crime spree during which they committed a burglary, several robberies, a carjacking, and a murder. Upon their apprehension, one of the culprits, Mark Lilly, made a confession in which he admitted being present and having some limited participation in some of the crimes. However, he described his participation in most of the crimes as a mere drunken presence and said that the others, in particular his brother, Benjamin Lilly, instigated and carried out the crimes. The statements were admitted into evidence in the trial of Benjamin as statements against the penal interest of Mark. The Supreme Court of the State of Virginia upheld the admission of the evidence.

On review by certiorari, all of the justices agreed that the judgment had to be reversed and remanded to the state court. But they expressed differing viewpoints on the matter. A lead opinion expressed the views of six justices as to the result, but of only four justices as to its reasoning. (Lilly, supra, 527 U.S. at p. 120, 119 S.Ct. at p. ___ [144 L.Ed.2d at p. 124].) The four justices noted that the introduction of hearsay evidence does not offend the Confrontation Clause when the evidence falls within a firmly rooted exception to the hearsay rule or contains particularized guarantees of trustworthiness such that adversarial testing would add little, if anything, to reliability. (Id. at pp. 124-125 [527 U.S. at p. ___, 119 S.Ct. at p. ___144 L.Ed.2d at p. 127].) Those justices concluded that a confession of an accomplice that incriminates a criminal defendant does not fall within a firmly rooted exception to the hearsay rule. (Id. at p. 134 [527 U.S. at p. ___, 119 S.Ct. at p. ___144 L.Ed.2d at p. 133].) Then, relying heavily on the facts that the statements were the product of custodial interrogation and that they primarily sought to shift the blame to others, the four justices concluded the statements lacked sufficient guarantees of trustworthiness. (Id. at pp. 138-139 [527 U.S. at pp. ___, 119 S.Ct. at pp. ___,144 L.Ed.2d at pp. 135-136].) Two justices concurred in the result, but expressed the view that the Confrontation Clause applies only to witnesses who testify at trial and to government -- generated extra-judicial statements for use at trial, i.e., "'formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions.'" (Lilly, supra, 527 U.S. at p. 143, 119 S.Ct. at p. ___ [144 L.Ed.2d at p. 138] (conc. opn. of Scalia, J.) and at pp. 143-144 [527 U.S. at pp. ___, 119 S.Ct. at pp. ___, 144 L.Ed.2d at pp. 138-139] (conc. opn. of Thomas, J.).) Since the statements at issue clearly fell within that group, those justices concurred in the judgment. (Ibid.)

The remaining three justices also concurred in the judgment. (Lilly, supra, 527 U.S. at p. 144, 119 S.Ct. at p. ___ [144 L.Ed.2d at p. 139] (conc. opn. of Rehnquist, C.J.).) However, they noted the statements of Mark that were against his penal interest were quite separate in time and place from the statements that exculpated Mark and incriminated Benjamin. (Id. at pp. 144-145 [527 U.S. at p. ___, 119 S.Ct. at p. ___,144 L.Ed.2d at p. 139].) Concluding the statements of Mark that inculpated Benjamin were not in the least against Mark's penal interest, those justices saw no reason to go further and preclude consideration of custodial statements that equally inculpate both the declarant and the defendant. (Id. at p. 146 [527 U.S. at p. ___, 119 S.Ct. at p. ___, 144 L.Ed.2d at p. 140].) Moreover, they noted that the statements at issue were part of a custodial confession of the sort the court views with "'special suspicion'" due to the accomplice's strong motivation to exonerate himself by implicating another. (Ibid.) The justices said the Supreme Court had previously recognized that statements which are not government--generated, such as statements to fellow prisoners and confessions to family members or friends, bear sufficient indicia of reliability to be placed before a jury without confrontation of the declarant, and saw no reason to foreclose the possibility that such statements may fall under a firmly rooted hearsay exception. (Id. at p. 147 [527 U.S. at p. ___, 119 S.Ct. at p. ___, 144 L.Ed.2d at p. 141].) Accordingly, those justices chose to limit the holding to the facts at issue, i.e., a custodial confession laying sole responsibility upon another person. (Id. at p. 148 [527 U.S. at p. ___, 119 S.Ct. at p. ___, 144 L.Ed.2d at p. 141].)

Here, we are concerned with extra-judicial statements in which the government played no part. Taylor voluntarily arranged to meet his former girlfriend -- the mother of his child -- in order to tell her why he was laying low and then planning to leave the state. Moreover, in his statements Taylor did not lay sole responsibility on defendant, nor did he attempt to shift primary blame to him. When we read all of the opinions in Lilly and count the justices, it is apparent that a majority of the justices agreed the decision has no application to these facts.

This is not to say extra-judicial statements that are not government--generated do not implicate the Confrontation Clause. That was a view expressed by only two of the justices in Lilly. It appears likely from the four-- justice lead opinion and the three--justice concurring opinion that a majority of the justices would agree that the admission of statements which do not actually meet the criteria for introduction as statements against interest would violate the right to confrontation regardless of whether they are government-generated. However, our state Supreme Court has laid down a strict test for the introduction of statements against penal interest. Such statements must be "'specifically disserving'" to the declarant's penal interests and must, in light of the surrounding circumstances, bear sufficient indicia of trustworthiness to warrant being introduced into evidence." People v. Duarte, supra, 24 Cal.4th at pp. 612, 614, 101 Cal.Rptr.2d 701, 12 P.3d 1110.) From our reading of the opinions in Lilly, we are satisfied that, at least with respect to statements which are not government--generated, the introduction of statements that meet this test does not violate the Confrontation Clause.

Defendant asserts that introduction of the hearsay statements violated principles of due process. "[T]he state has power to regulate the procedures under which its laws are carried out, and a rule of evidence in this regard 'is not subject to proscription under the Due Process Clause unless "it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." [Citations.]'" (People v. Fitch (1997) 55 Cal.App.4th 172, 178-179, 63 Cal.Rptr.2d 753.) The specific guarantees included in the Bill of Rights are fundamental principles but, beyond those guarantees, the due process clause has limited operation. (Id. at p. 179, 63 Cal.Rptr.2d 753.) Accordingly, "[o]ne raising a due process claim to exclude relevant evidence must sustain a heavy burden." (Ibid.)

Defendant does not develop his due process argument beyond asserting that the evidence was unreliable. The ultimate determination whether evidence is reliable is for the trier of fact. To be admissible before the trier of fact as a statement against penal interest, hearsay evidence must meet a threshold of trustworthiness. (People v. Duarte, supra, 24 Cal.4th at p. 614, 101 Cal.Rptr.2d 701, 12 P.3d 1110 .) Where, as here, challenged evidence meets the required threshold of trustworthiness, due process is satisfied.

Defendant contends the evidence should have been excluded as unduly prejudicial pursuant to Evidence Code section 352, which gives a trial court the discretion to exclude otherwise admissible evidence if its probative value is substantially outweighed by the probability that its admission will necessitate undue consumption of time, or create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury. The decision whether to exclude otherwise admissible evidence is committed to the broad discretion of the trial court and cannot be disturbed on appeal absent a clear abuse thereof. (People v. Scheid (1997) 16 Cal.4th 1, 19, 65 Cal.Rptr.2d 348, 939 P.2d 748.)

In his statements to Burbank, Taylor did not specifically implicate defendant in the murder. He told her that he would not identify the other participants because he did not want her involved. However, when considered with the other evidence at trial, the evidence had substantial probative value. In two interviews with investigators, defendant claimed to have been with Taylor throughout the relevant period. Numerous witnesses placed them together before the murder, after the murder but before disposal of the body, and after disposal of the body. Following his second interview, while defendant was in jail on an unrelated charge, he made monitored telephone calls in which he urged his friends to relay his version of the events to Taylor, to tell Taylor not to say anything to the police, and to tell him to demand a lawyer because they could not talk to him if he demanded a lawyer. In light of this evidence, Taylor's admission that he was involved in the murder tended to establish that defendant also was involved.

Defendant argues Taylor's statement that there was a connection between the murder and a "white pride thing" was prejudicial because it suggested a gang affiliation. Evidence of gang membership can be relevant in a murder trial for a variety of reasons, such as proof of motive. (People v. Maestas (1993) 20 Cal.App.4th 1482, 1497, 25 Cal.Rptr.2d 644.) But where such evidence has no relevance to the issues, it is inadmissible and may present a danger of undue prejudice. (Id. at pp. 1497-1498, 25 Cal.Rptr.2d 644.)

Taylor's statements indicated there was a white pride motive to the murder and were thus facially relevant. But the white pride issue was otherwise undeveloped in the evidence, and the prosecutor did not contend there was a white pride motive for the murder.*fn2 In view of the prosecutor's theory and the other evidence in the case, we agree that the white pride statements were not themselves relevant.

However, defendant did not object in the trial court on this ground. He sought to preclude Burbank's testimony in its entirety. When defendant's objections based on Evidence Code section 1230 and confrontation grounds were overruled, he interposed an objection pursuant to Evidence Code section 352 saying: "Basically, it's statements that don't really contain a lot other than putting the defendant at the location and suggesting that at least some of the party had a significant involvement in it."

In order to preserve for appeal an objection to introduction of evidence, a party must object in the trial court, state the specific grounds of objection, and specify the particular evidence that he wishes to exclude. (People v. Harris (1978) 85 Cal.App.3d 954, 957, 149 Cal.Rptr. 860.) When evidence is in part admissible and in part inadmissible, the inadmissible portion cannot be reached by an objection to the evidence in its entirety; rather, the inadmissible portion must be specified. (Ibid.) By failing to specifically object to the white pride aspect of the evidence, or to make an argument based thereon, defendant deprived the trial court of the opportunity to consider excluding that portion of the evidence. (People v. Morris (1991) 53 Cal.3d 152, 196, 279 Cal.Rptr. 720, 807 P.2d 949, disapproved on another ground in People v. Stansbury (1995) 9 Cal.4th 824, 830, fn. 1, 38 Cal.Rptr.2d 394, 889 P.2d 588.) Thus, objection to that portion of the evidence was waived. (Ibid.) To the extent that defendant argues the white pride aspect of the evidence should have required exclusion of Burbank's testimony in its entirety, we reject the contention. In light of the other evidence, Taylor's statements to Burbank had substantial probative value. The potential for prejudice from the brief white pride references did not so clearly outweigh the probative value of the evidence that we could find an abuse of the trial court's discretion in refusing to exclude the evidence in its entirety. (Opinion at 4-15.)

2. Applicable Legal Standards

The Confrontation Clause of the Sixth Amendment provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . ." U.S. Const. amend. VI. This right, extended to the States by the Fourteenth Amendment, includes the right to cross-examine witnesses. Cruz v. New York, 481 U.S. 186, 189 (1987) (citing Pointer v. Texas, 380 U.S. 400, 404 (1965)).*fn3 "The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversary proceeding before the trier of fact." Lilly v. Virginia, 527 U.S. 116, 124 (1999) (quoting Maryland v. Craig, 497 U.S. 836, 845 (1990)). See also Davis v Alaska, 415 U.S. 308, 315 (1974) (a primary interest secured by the Confrontation Clause is the right of cross-examination). At the time of petitioner's trial, federal law provided that an unavailable witness's out-of-court statement could be admitted against a criminal defendant and not run afoul of the Confrontation Clause so long as it bore adequate indicia of reliability -- i.e., fell within a "firmly rooted hearsay exception" or otherwise bore "particularized guarantees of trustworthiness" such that adversarial testing would be expected to add little, if anything, to the statement's reliability. Ohio v. Roberts, 448 U.S. 56, 66 (1980); Lilly, 527 U.S. at 124-25.

Shortly after petitioner's trial was concluded, the United States Supreme Court held that the Confrontation Clause bars the state from introducing into evidence out-of-court statements which are "testimonial" in nature unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness, regardless of whether such statements are deemed reliable. After the petition and traverse were filed in this matter, the United States Supreme Court announced that the holding in Crawford does not apply retroactively to convictions that became final before Crawford was decided. Whorton v. Bockting, 549 U.S. 406, 421 (2007). Crawford was decided nine days prior to the denial of petitioner's petition for review by the California Supreme Court. However, "[a] state conviction and sentence become final for purposes of retroactivity analysis when the availability of direct appeal to the state courts has been exhausted and the time for filing a petition for a writ of certiorari has elapsed or a timely filed petition has been finally denied." Caspari v. Bohlen, 510 U.S. 383, 390 (1994). Under this definition, petitioner's conviction had not yet become final at the time of the Crawford decision. Accordingly, the holding in Crawford is applicable to petitioner's Confrontation Clause claim before this court.

3. Analysis

a. Confrontation Clause

Petitioner was not able to cross-examine Taylor at trial regarding his statements to Burbank because Taylor invoked his Fifth Amendment privilege not to testify and was therefore rendered "unavailable." See California v. Green, 399 U.S. 149, 168 n.17 (1970) (a witness who properly invokes the Fifth Amendment privilege is not available for cross-examination); Whelchel v. Washington, 232 F.3d 1197, 1204 (9th Cir. 2000) (same). Petitioner was also unable to cross-examine Taylor at the time he made the out-of-court statements to Burbank. Accordingly, if Taylor's statements were "testimonial in nature," petitioner is entitled to relief on his Confrontation Clause claim. Crawford, 541 U.S. at 68.

"The Supreme Court has yet to define the extent to which rights under the Confrontation Clause are applied to testimonial and non-testimonial statements." United States v. Norwood, 555 F.3d 1061, 1065 -1066 (9th Cir. 2009). In this regard, in Crawford the Supreme Court declined "to spell out a comprehensive definition of 'testimonial.'" 541 U.S. at 68 & n.10. However, the court did describe three "formulations of [the] core class of testimonial statements." Id. at 51-52. The first formulation was described as "ex parte in-court testimony or its functional equivalent -- that is, material such as affidavits, custodial examinations, prior testimony that the defendant was unable to cross-examine or similar pretrial statements that declarants would reasonably expect to be used prosecutorially." Id. at 51. The second formulation was described as "extra-judicial statements . . . contained in formalized testimonial materials, such as affidavits, depositions, prior testimony, or confessions." Id. at 51-52 (quoting White v. Illinois, 502 U.S. 346, 365 (1992)). The third formulation described statements that were "made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial." Id. at 52. The court noted that "[w]hatever else the term [testimonial] covers, it applies . . . to prior testimony at a preliminary hearing, before a grand jury, or at a former trial, and to police interrogations." Id. at 68. With regard to statements that are not testimonial, the Supreme Court stated that "it is wholly consistent with the Framers' design to afford the States flexibility in their development of hearsay laws . . . as would an approach that exempted such [non-testimonial] statements from Confrontation Clause scrutiny altogether." Id.

In Davis v. Washington, 547 U.S. 813, 821-33 (2006), a case involving a call during an ongoing emergency to a 911 operator (deemed a police agent) the United States Supreme Court elaborated on the holding in Crawford, exploring the parameters of statements which were "testimonial" in nature. The court noted that only "testimonial" statements "cause the declarant to be a 'witness' within the meaning of the Confrontation Clause." Id. at 821. The court in Davis, however, declined to address "whether and when statements made to someone other than law enforcement personnel are 'testimonial.'" Id. at 823 n.2.

The Ninth Circuit has concluded that statements contained in the diary of petitioner's wife were not testimonial because the diary was not created "under circumstances which would lead an objective witness reasonably to believe that [it] would be available for use at a later trial." Parle v. Runnels, 387 F.3d 1030, 1037 (9th Cir. 2004). In Horton v. Allen, 70 F.3d 75');">370 F.3d 75, 83 (1st Cir. 2004), the First Circuit determined that the petitioner's statements to an acquaintance were not testimonial in nature because they were not made to law enforcement personnel and were not given under circumstances in which an objective person would reasonably believe that the statements would be available for use at a later trial. Id. at 85. Finally, the Eighth Circuit has held that the Confrontation Clause did not bar the use at defendant's trial of statements made to third parties because the statements "were made to loved ones or acquaintances and are not the kind of memorialized, judicial-process-created evidence of which Crawford speaks." United States v. Manfre, 368 F.3d 832, 838 (8th Cir. 2004).

After comparing the circumstances of this case to those presented in the cases cited above, this court concludes that Taylor's statements to Burbank were not testimonial in nature. There is no evidence in the record suggesting that Taylor made the statements for the purpose of supplying evidence to the prosecution. Rather, the conversation was between two private individuals, without any active participation by a government official. Further, as noted by the state appellate court, in his statement to the mother of his child, Taylor made no effort to minimize his own guilt or to shift the blame. The statements were not contained in formalized documents such as affidavits, depositions, or prior testimony transcripts, and were not made as part of a confession resulting from custodial examination. Nor were Taylor's statements made under circumstances in which an objective person would "reasonably believe that the statement would be available for use at a later trial." Crawford, 541 U.S. at 52. Because Taylor's statements were non-testimonial in nature, the Confrontation Clause did not prevent their admission at petitioner's trial. See Norwood, 555 F.3d at 1066 (noting that the Ninth Circuit has "interpreted the Supreme Court's ruling in Crawford to allow the admission of non-testimonial statements without scrutiny under the Confrontation Clause").*fn4

Even when analyzed under the prior Roberts test, the admission into evidence of Taylor's statements did not violate the Confrontation Clause. As noted above, at the time of petitioner's trial, Roberts and Idaho v. Wright, 497 U.S. 805, 819 (1990) governed the admissibility of hearsay evidence in a criminal case for purposes of the Confrontation Clause. Under the holdings in those cases, Taylor's statements to Burbank were admissible only if they bore "adequate indicia of reliability" -- that is, if the statements fell within a "firmly rooted hearsay exception" or contained "particularized guarantees of trustworthiness." Roberts, 448 U.S. at 66; Wright, 497 U.S. at 815-16.

Accomplice confessions that incriminate a criminal defendant are not deemed to fall within a firmly rooted exception to the hearsay rule. Lilly, 527 U.S. at 134. Therefore, incriminating statements by a non-testifying co-defendant may be admitted against another defendant only if they satisfy the "particularized guarantees of trustworthiness" prong of Roberts. Lilly, 527 U.S. at 134-37. See also Lee v. Illinois, 476 U.S. 530, 543 (1986); Forn v. Hornung, 343 F.3d 990, 996-97 (9th Cir. 2003). Whether a statement bears "particularized guarantees of trustworthiness" must be shown from the totality of the circumstances surrounding the making of the statement, not from the trial evidence as a whole. Wright, 497 U.S. at 819. The "relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief." Id.

After a thorough analysis of relevant United States Supreme Court authority, the California Court of Appeal reasonably concluded that Taylor's statements to Burbank bore sufficient indicia of trustworthiness to be admissible at petitioner's trial. As noted by the state court, at the time Taylor made the statements he had not been accused of any crime. Therefore, his statements were not made after an arrest or during an official interrogation of any kind. Further, Taylor met with Burbank for the purpose of explaining his intended absence to her and to their son. He did not make the statements in order to "curry favor by implicating others or to shift blame in the hope of leniency." (Opinion at 8.) Contrary to petitioner's arguments, Taylor did not attempt to shift blame for the killing to petitioner; indeed, he did not mention any other person by name and he identified himself as the actual killer. This court agrees with the state trial court's observation that "there isn't really any -- much in terms of shifting responsibility" contained in Taylor's statements. (RT at 664.) Further, Taylor had nothing to gain by describing the circumstances of the crime to Burbank. Indeed, he was reportedly shaking, crying, and scared at the time he made the statements. (Id. at 684.) Under these ...

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