Wednesday, October 5, 2005
Court of Appeal Rules:
U.S. High Court Decision on Testimonial Hearsay Not Retroactive
Differing With Ninth Circuit, Fourth District Declines to Apply Crawford on Habeas Review
By DAVID WATSON, Staff Writer
The U.S. Supreme Court’s ruling last year broadening the circumstances under which admission of hearsay violates a criminal defendant’s Confrontation Clause rights does not apply to defendants whose direct appeals were already exhausted when it was handed down, the Fourth District Court of Appeal ruled yesterday.
Taking issue with a ruling by the Ninth U.S. Circuit Court of Appeals, the court’s Div. One declined to apply the rule announced in Crawford v. Washington, 541 U.S. 36, to a habeas petition filed by Leonard Moore Jr.
Moore contended Crawford barred the admission of a tape recording of a 911 call at his trial on sexual assault charges. Moore’s lawyer did not object to the evidence.
Moore’s appeal was denied in 2002, and the U.S. Supreme Court denied certiorari in 2003. But after Crawford was decided in March of 2004, Moore filed a habeas petition citing it and claiming his attorney was ineffective for failing to raise a confrontation clause objection to the evidence.
Writing for the Court of Appeal, Justice Richard D. Huffman conceded that in Bockting v. Bayer, 399 F.3d 1010, a panel of the Ninth Circuit held in February by a 2-1 margin that Crawford was a “watershed” rule of criminal procedure which should be applied retroactively to cases on collateral review.
But Huffman pointed out that Ninth Circuit decisions are not binding on state courts, and noted that Second, Sixth, Seventh, Eighth and Tenth Circuits have reached the opposite result.
“Because the holding in Bockting...is not binding on this court, and is in conflict with every other federal circuit court that has addressed the issue of whether Crawford is to apply retroactively to a habeas proceeding after direct review is final..., we review the matter de novo to determine if the decision in Crawford should be given retroactive effect in this case,” Hoffman wrote.
In Crawford, the justice explained, the U.S. high court made a “clean break” from the controlling precedent established in 1980 in Ohio v. Roberts, 448 U.S. 56, by ruling that “testimonial” hearsay statements offered as evidence against a defendant are admissible under the Confrontation Clause only if the declarant is unavailable and the defendant had a prior opportunity for cross-examination.
The Bockting majority was correct in looking to Teague v. Lane (1989) 489 U.S. 288 to determine whether the new rule laid down in Crawford should be applied retroactively, but was wrong to conclude that Crawford established a “watershed” rule under Teague, Huffman said.
“Since 1989, when the exceptions to nonretroactivity in Teague...were announced, the United States Supreme Court has declined to apply any new rule of criminal procedure retroactively on habeas review when measured against the criteria for the second Teague exception,” he observed.
Crawford, Huffman said, “does not rise to the level” of Gideon v. Wainwright (1963) 372 U.S. 335 the case which applied the Sixth Amendment right to counsel to the states and held that indigent defendants have a right to court-appointed counsel in all criminal prosecutions. Gideon, he noted, has “repeatedly” been cited by the high court as an example of a “watershed” rule.
“Although it is important, being based upon the confrontation clause which is recognized as a ‘bedrock procedural guarantee’..., this does not mean that the rules concerning its implementation necessarily constitute bedrock procedural rules,” Huffman declared.
The change in the law wrought by Crawford is “similar to a rule that shifts the factfinding responsibility from a judge to the jury,” the justice explained.
Since violations of Crawford are subject to harmless error analysis and are not considered “structural” errors, it “would...be difficult to conclude that the rule in Crawford alters fundamental due process rights,” Huffman reasoned.
The justice noted that the tape played for Moore’s jury was edited, and that Moore was objecting only to those portions on which the voice of an unidentified individual who helped the victim place the call was heard. The victim’s own statements were admissible as excited utterances, as category of hearsay to which Crawford does not apply, Huffman said.
Even if admission of the evidence was error, the justice said, Moore failed to show a reasonable probability that it affected the outcome of his trial, since testimony by the victim and police officers largely duplicated the challenged statements on the 911 tape, Huffman added.
Justices Judith L. Haller and Cynthia Aaron concurred.
The case is In re Moore, 05 S.O.S. 4548.
Copyright 2005, Metropolitan News Company