United States District Court, E.D. California
ORDER
In
Claim 22 of the Second Amended Petition, petitioner argues,
among other things, that certain testimony recounting
statements made by his co-defendant, Archie Menefield,
violated petitioner’s Confrontation Clause rights under
the holding in Bruton v. United States, 391 U.S. 123
(1968). Petitioner submitted additional briefing on this
issue in his December 2014 memorandum. (ECF No. 528 at
10-19.) Respondent chose to rely on his Answer and submitted
no additional briefing with respect to this issue.
(See ECF No. 527 at 12; Answ. (ECF No. 217) at
152-157.) None of the briefing submitted to date with respect
to this issue addresses the United States Supreme
Court’s decision in Crawford v. Washington,
541 U.S. 36 (2004), which the undersigned finds relevant to
resolution of the Bruton issue.
Set out
below is a draft and tentative ruling on two of the
Bruton issues in Claim 22. The parties will be
ordered to address this ruling in supplemental briefing.
Tentative
Ruling
Confrontation
Clause Error
1.
Legal Standards
The
Sixth Amendment grants a criminal defendant the right
“to be confronted with the witnesses against
him.” “The ‘main and essential purpose of
confrontation is to secure for the opponent the
opportunity of cross-examination.’”
Fenenbock v. Director of Corrections for California,
692 F.3d 910, 919 (9th Cir. 2012) (quoting Delaware v.
Van Arsdall, 475 U.S. 673, 678 (1986)) (emphasis in
original).
In
2004, 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. Crawford v.
Washington, 541 U.S. 36 (2004). The Crawford
rule applies only to hearsay statements that are
“testimonial” and does not bar the admission of
non-testimonial hearsay statements. Id. at 42, 51,
68; see also Whorton v. Bockting, 549 U.S. 406, 420
(2007) (“[T]he Confrontation Clause has no application
to” “out-of-court nontestimonial
statements.”)
Although
the Supreme Court in Crawford declined to provide a
comprehensive definition of the term “testimonial,
” it noted that “[s]tatements taken by police
officers in the course of interrogations are . . .
testimonial under even a narrow standard.”
Crawford, 541 U.S. at 52. The court also provided
the following “formulations” of a “core
class” of testimonial statements: (1) “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;” (2)
“extrajudicial statements . . . contained in formalized
testimonial materials, such as affidavits, depositions, prior
testimony, or confessions;” and (3) “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 51-52 (citations omitted). The court in
Crawford also pointed out that the Sixth Amendment
Confrontation Clause “does not bar the use of
testimonial statements for purposes other than establishing
the truth of the matter asserted.” Id. at 59
n.9 (citing Tennessee v. Street, 471 U.S. 409, 414
(1985)). However, “state evidence rules do not trump a
defendant’s constitutional right to confrontation,
” and a reviewing court ensures “that an
out-of-court statement was introduced for a
‘legitimate, nonhearsay purpose’ before
relying on the not-for-its-truth rationale to dismiss the
application of the Confrontation Clause.” Williams
v. Illinois, __ U.S. __, __, 132 S.Ct. 2221, 2226 (2012)
(citing Street, 471 U.S. at 417) (emphasis in
original).
In
Bruton v. United States, 391 U.S. 123 (1968), the
United States Supreme Court held that a defendant is deprived
of his Sixth Amendment right of confrontation when a facially
incriminating confession of a non-testifying co-defendant is
introduced at their joint trial, even if the jury is
instructed to consider the confession only against the
co-defendant. 391 U.S. at 135. “[U]nder Bruton
and its progeny ‘the admission of a statement made by a
non-testifying codefendant violates the Confrontation Clause
when that statement facially, expressly, or powerfully
implicates the defendant.’” United States v.
Hernandez-Orellana, 539 F.3d 994, 1001 (9th Cir. 2008)
(quoting United States v. Mitchell, 502 F.3d 931,
965 (9th Cir. 2007)).[1] However, following Crawford,
“[i]t is . . . necessary to view Bruton
through the lens of Crawford, ” and “the
threshold question in every case is whether the challenged
statement is testimonial. If it is not, the Confrontation
Clause ‘has no application.’” United
States v. Figueroa-Cartagena, 612 F.3d 69, 85 (1st Cir.
2010) (citing Bockting, 549 U.S. at 420).
Accordingly, the rule set forth in Bruton, which is
premised on the Confrontation Clause, does not apply to
statements which are non-testimonial in nature. See
United States v. Dargan, 738 F.3d 643, 651 (4th Cir.
2013); United States v. Berrios, 676 F.3d 118, 128
(3rd Cir. 2012); United States v. Smalls, 605 F.3d
765, 768 n. 2 (10th Cir. 2010); United States v.
Johnson, 581 F.3d 320, 326 (6th Cir. 2009); United
States v. Taylor, 509 F.3d 839, 850 (7th Cir. 2007);
see also Smith v. Chavez, 565 Fed.Appx. 653 (9th
Cir. 2014); Hundley v. Montgomery, No. 2:12-cv-3051
JKS, 2014 WL 1839116, **11-13 (E.D. Cal. May 8, 2014) (the
circuit courts which have considered the issue “appear
to have unanimously concluded that where a statement is
non-testimonial, neither Crawford or Bruton
apply.”).
Confrontation
Clause violations are subject to harmless error analysis.
Whelchel v. Washington, 232 F.3d 1197, 1205-06 (9th
Cir. 2000).[2] “In the context of habeas petitions,
the standard of review is whether a given error ‘had
substantial and injurious effect or influence in determining
the jury’s verdict.’” Christian v.
Rhode, 41 F.3d 461, 468 (9th Cir. 1994) (quoting
Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)).
Factors to be considered when assessing the harmlessness of a
Confrontation Clause violation include the importance of the
testimony, whether the testimony was cumulative, the presence
or absence of evidence corroborating or contradicting the
testimony, the extent of cross-examination permitted, and the
overall strength of the prosecution’s case. Van
Arsdall, 475 U.S. at 684.[3]
2.
Discussion
Petitioner
first challenges Rooks’ testimony that Menefield asked
him for his “opinion as to the incident in the regard
to Little Charles, incident out in the yard that happened out
in the yard.” (RT 2038.) Menefield then told Rooks that
he was “[g]oing with him.” When asked to whom
“him” referred, Rooks responded,
“Zoom.” (RT 2038-39.) Before Rooks testified,
defense counsel strenuously objected to admission of this
testimony. (RT 2010-2020, 2027-2030.) The trial court
admitted it under a hearsay exception for statements made in
furtherance of a conspiracy. (RT 2028-2030.) The California
Supreme Court held this ruling was in error and the admission
of the testimony violated Bruton. People v.
Roberts, 2 Cal.4th at 303-04. However, it further found
the error to be harmless. Id. at 304.
Petitioner
also challenges the admission of Rooks’ testimony that
Menefield told him after the crime that “he was down on
the floor when the incident happened, but he couldn’t
say ‘no, ’ because he couldn’t say
‘no.’” (RT 2053.) At defense
counsel’s request, the trial court gave an instruction
limiting the jury’s consideration of this latter
statement to their determination of Menefield’s, not
petitioner’s, guilt. (Id.)
Petitioner
argues that the admission of Rook’s testimony noted
above was a clear violation of the rule of Bruton.
(ECF No. 528 at 14.) However, in his briefing, petitioner
does not mention the Supreme Court’s decision in
Crawford.[4] After Crawford, the first
question is whether the statements made by Menefield about
which Rooks testified were “testimonial” in
nature. Menefield did not make these statements to Rooks
“under circumstances which would lead an objective
witness reasonably to believe that the statement would be
available for use at a later trial.” Crawford,
541 U.S. at 51-52. These types of “statements from one
prisoner to another” are “clearly
nontestimonial.” Davis v. Washington, 547 U.S.
813, 825 (2006). See also Berrios, 676 F.3d at 128
(Bruton is inapplicable to a non-testimonial
“prison yard ...