Gray v. Klauser

• Decision Date: 27 February 2002
• Docket Number: No. 00-35732.,00-35732.
• Citation: 282 F.3d 633
• Parties: William L. GRAY, Petitioner-Appellant, v. Joseph KLAUSER, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

282 F.3d 633

William L. GRAY, Petitioner-Appellant, v. Joseph KLAUSER, Warden, Respondent-Appellee.

No. 00-35732.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted May 7, 2001.

Filed February 27, 2002.

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Maynard D. Grant, Grant & Newcomb, Seattle, WA, for the petitioner-appellant.

Kenneth M. Robins, Deputy Attorney General, Boise, ID, for the respondent-appellee.

Appeal from the United States District Court for the District of Idaho, B. Lynn Winmill, District Judge, Presiding. D.C. No. CV-98-00387-BLW.

Before: LAY,^* TROTT, and BERZON, Circuit Judges.

BERZON, Circuit Judge:

Idaho state prisoner William Gray was convicted of killing his wife, Betty Gray, and her friend, Reeda Roundy. Gray unsuccessfully sought relief in the Idaho state court system before filing a habeas petition in federal court pursuant to 28 U.S.C. § 2254. The district court denied the petition but granted a certificate of appealability for each of Gray's claims. Because we find that the Idaho trial court's ("trial court") rulings regarding the admission of hearsay evidence violated Gray's constitutional rights and that the requisite harmless error standard was met, we reverse.

I. Facts

On July 24, 1989, LeRoy Leavitt went to the Idaho Falls, Idaho home of Reeda Roundy. There, he found Roundy and Betty Gray, Roundy's best friend and Leavitt's lover, dead from gunshot wounds to the head. After more than two years of investigation of four suspects, the government indicted Betty Gray's husband of 29 years, William Gray, for the murders and a related burglary count.

A. The State's Theory

According to the state, after learning that Betty Gray was having an affair with Leavitt and that she wanted a divorce, Gray hatched a plan to kill his wife and took steps to ensure that he would not get caught: First, Gray bought a 1971 International Travelall and registered it under a false name. Then, in the early morning hours of July 24, 1989, Gray drove the Travelall from his home in Jackson Hole, Wyoming, to the Eastern Idaho Medical Center in Idaho Falls, Idaho. Gray parked the Travelall at the Medical Center, and then rode his bicycle 3.6 miles to Roundy's home, where Betty Gray had spent the night.

At Roundy's home, the government claimed, Gray shot both Betty Gray and Roundy in the head with a 9mm handgun. The prosecution theorized that Gray arranged the scene to appear as the site of a ritualistic cult killing, hoping to deflect suspicion from himself. Then, Gray rode the bike 3.6 miles back to the medical center and drove the Travelall back to Jackson Hole. There was also evidence that Gray initially lied during the investigation as to several matters, including whether he owned a vehicle similar to the Travelall, why, and what happened to it.

B. The Defense

Gray's defense consisted of two related claims: that he was not the murderer and that someone else was. Regarding the claim that he was not the murderer, Gray asserted that he was not in Idaho Falls on the night in question. He testified also that he did not know about Betty Gray's affair with Leavitt until after the murders. Gray emphasized that the State had no fingerprints linking him to the crimes, and that the State produced little other physical evidence. Moreover, Dr. Karen Servilla, Gray's treating physician, opined that because of his poor medical condition, Gray was physically unable to ride his bicycle the 7.2 mile round-trip in the time theorized by the government. Gray also explained that he had bought the Travelall for someone else as part of his pawnshop business, although that person was never found.

The second part of Gray's defense posited that somebody else was the real killer, and Gray pointed in several directions. Aside from emphasizing the ritualistic overtones of the crime scene, Gray postulated that one of three people — Leavitt, Houston Riley (Roundy's current lover), or J.W. Dyer (Roundy's previous lover) — was responsible for the murders.

C. The Photo Line-up

The key to the state's case was Steve Mackley, a security guard at the Eastern Idaho Medical Center. Around 3:00 a.m. on July 24, 1989, Mackley saw a middle-aged man ride a bicycle into the medical center parking lot and put the bicycle into a vehicle with Wyoming license plates. In statements to the police, Mackley described the vehicle variously as a Jeep, as a "Suburban-type" vehicle, and as perhaps an International.

Suspicious, Mackley approached the man and questioned him. The parking lot was dark, Mackley told the jury, but he scanned a flashlight beam over the man's face. For approximately sixty seconds Mackley spoke with a middle-aged Caucasian man with rosy red cheeks who was sweating profusely and was out of breath. The man, who wore a medical identification bracelet and glasses, told Mackley that he was picking up the vehicle for friends from Jackson Hole, Wyoming.

After news of the murders spread, Mackley contacted the police and told them what he had seen. When asked to help a police artist create a composite sketch of the mystery man, Mackley fairly accurately described Gray with one significant exception: he claimed that the man with whom he had spoken was clean-shaven, stating "No mustache, no beard, or anything." Gray was sporting a full beard on the night in question.

Three days later, when the police showed him a five-person photographic line-up,¹ Mackley selected the bearded Gray, stating that "the person I remember to a tee was in photograph 3 [Gray]." Because he was "concerned" about the facial hair, however, Mackley asked the police how recently the photograph had been taken.

Then, a few days later, Mackley coincidentally ran into Gray at a hospital, and immediately identified Gray as the man from the medical center parking lot with the bicycle and Travelall. As Mackley put it: "The facial hair didn't throw me off again, because I'd seen it in the picture."

Gray sought to prevent the state from introducing Mackley's statements identifying Gray as the mystery bicycle-rider. Gray argued that the manner in which the photographic array was arranged called attention to Gray and thus was unduly suggestive. In the array, Gray's picture is the only one with a dark pink tint; also, only Gray and one other man are shown wearing glasses. That other man is wearing sunglasses while Gray is depicted looking out over the top of reading glasses, a characteristic Mackley had noted regarding the person he saw. Gray contended that for these reasons and others, the array was unduly suggestive, and that the identifications were fruits of that unduly suggestive line-up. The trial court rejected Gray's argument, finding that the array was not unduly suggestive, and that even if it was, Mackley's identifications were sufficiently reliable to be admitted. The Idaho Court of Appeals found the array to be unduly suggestive, but held that Mackley's identification was "sufficiently reliable to outweigh the low level of suggestiveness in the identification procedures." State v. Gray, 129 Idaho 784, 798, 932 P.2d 907, 921 (Ct.App.1997). The federal district court in its decision on habeas review tracked the reasoning of the state appeals court.

D. The Hearsay Evidence

At trial, both sides sought to present hearsay evidence in order to advance their respective theories of the case. Through the testimony of Betty Gray's sister, Joann Buccola, the state sought to introduce hearsay statements made by Betty Gray that, by supplying Gray with a motive, made it appear more likely that he was the killer. Likewise, the defense attempted to introduce hearsay statements made by Roundy, through the testimony of Roundy's two children, her best friend, and Riley, the man who was her lover at the time of her death. These statements made it appear more likely that Roundy's former lover, Dyer, was the killer, as he had threatened and stalked Roundy.

Over Gray's objections, the trial court allowed the state to introduce some of Betty Gray's hearsay statements. Before so ruling, the trial court held a pre-trial suppression hearing to consider the admissibility of these statements. Buccola testified at that hearing about several conversations she had with her deceased sister.² Following the hearing, the trial court ruled that the state could not introduce Betty Gray's statement that she feared her husband, because the statement was not material. The court did, however, allow Buccola to testify at trial that Betty Gray said that she was having an affair and wanted a divorce, that Gray had learned about the affair and desire for divorce, that Gray had asked her to keep it secret, and that Gray became angry when she divulged the secret. The trial court concluded that one of these statements (that Betty Gray told Gray she wanted a divorce) was not hearsay, and that the rest were relevant statements of fact that bore particularized guarantees of trustworthiness and thus were admissible under Idaho's residual exception to the hearsay rule, IDAHO R. EVID. 803(24) ("Rule 803(24)").

The trial court did not, however, allow Gray to introduce any of the hearsay statements attributable to Roundy. Roundy's statements indicated, first, that she was afraid of Dyer, and, second, the reasons for her fear, including that Dyer had stalked her, that he had threatened to kill her, and that the police had told her that Dyer was a "mercenary."³ The trial court first ruled that these statements could not come in under Idaho's state of mind hearsay exception, IDAHO R. EVID. 803(3) ("Rule 803(3)"). It reasoned — as it did with regard to similar statements by Betty Gray — that the statements relating to Roundy's state of mind were immaterial and thus inadmissible. It then held that the reasons for Roundy's fear were statements of fact, and thus did not qualify for admission under the state of mind hearsay exception.

The trial court next considered the admissibility...