Winzer v. Hall

• Decision Date: 23 July 2007
• Docket Number: No. 06-55327.,06-55327.
• Citation: 494 F.3d 1192
• Parties: Marcus D. WINZER, Petitioner-Appellant, v. James E. HALL, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

494 F.3d 1192

Marcus D. WINZER, Petitioner-Appellant, v. James E. HALL, Warden, Respondent-Appellee.

No. 06-55327.

United States Court of Appeals, Ninth Circuit.

Argued February 8, 2007.

Submitted July 13, 2007.

Filed July 23, 2007.

Carol K. Lysaght, Santa Monica, CA, for the petitioner-appellant.

Bill Lockyer, Attorney General of the State of California; Mary Jo Graves, Chief Assistant Attorney General; Pamela C. Hamanaka, Senior Assistant Attorney General, Kenneth C. Byrne, Supervising Deputy Attorney General; Yun K. Lee, Deputy Attorney General, Los Angeles, CA, for the respondent-appellee.

Appeal from the United States District Court for the Central District of California; Dale S. Fischer, District Judge. D.C. No. CV 04-07301-DSF-RZ.

Before: ALEX KOZINSKI and STEPHEN S. TROTT, Circuit Judges, and DONALD W. MOLLOY,^* District Judge.

MOLLOY, District Judge:

Appellant/Petitioner Marcus Winzer appeals from the district court's denial of his petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. He was convicted by a Los Angeles County jury on two counts of making a terrorist threat by saying "I'll smoke you and your daughter" while appearing to indicate that he had a gun in the waistband of his pants. The statement and gesture were proved at trial through the testimony of a police officer, who interviewed the two victims at their home more than five and a half hours after Winzer left it. Based on the officer's testimony about the victims' demeanor, and despite the trial court's exclusion of their 911 call as "one of the calmest" it had ever heard, the California courts concluded that the victims' statements to the officer were spontaneous and therefore exceptions to hearsay. The mother did not appear at trial. The daughter did not recall Winzer making the threat and did not see the gesture. Winzer contends that his Sixth Amendment right to confrontation was violated.

Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), does not apply because it was decided after Winzer's trial and appeal. See Whorton v. Bockting, ___ U.S. ___, 127 S.Ct. 1173, 167 L.Ed.2d 1 (2007). Even so, federal law that was clearly established before Crawford mandates reversal.

I. FACTUAL BACKGROUND

Around 10:45 a.m. on December 2, 2001, Winzer and his "on-again, off-again" girlfriend, declarant Parrish Harvey, were strenuously arguing in her home. At the same time, Parrish's daughter, nineteen-year-old Mercedes Hernandez, was arguing on the phone with her boyfriend. At Parrish's insistence, Winzer left the house at about 11:00 a.m., ten or fifteen minutes after the argument started.

Later in the afternoon, having had several hours to think about the argument, Parrish called 911. At about 4:40 p.m., Los Angeles police officer Michael Dickson arrived at her house in response to her call. Based on Dickson's interview with Parrish and Mercedes, Winzer was charged with two counts of making a terrorist threat. See Cal.Penal Code § 422.

At trial, the State offered the tape of Parrish's 911 call under California's "spontaneous statement" exception to hear-say. The trial court found that "it's got to be one of the calmest 911 tapes I think I have heard" and "I can't say from what I hear on the tape . . . that she is under the distress of the excitement of the event. And the bulk of it actually, the bulk of the tape is not talking about the event." Consequently, the 911 tape was excluded. But the prosecution found another way to skin the cat.

When the State offered Dickson's testimonial report of Parrish's statement, the trial court found that "the court does have to give some deference to the experienced officer who was questioning the individuals." It admitted Dickson's report of the victims' statements to him as spontaneous statements because Parrish and Mercedes appeared to Dickson to be "visibly upset, emotionally upset, almost to the point of shaking, [and] fearful," at the time he talked to them.

Parrish was in custody the day before testimony began but the State did not call her to testify.¹ The other witness, Mercedes, said she had memory problems due to a seizure disorder. She remembered several details of the incident, but she testified that she did not recall overhearing Winzer say, "I'll smoke you and your daughter." Parrish's mother, Pauline, testified that she heard Mercedes tell the prosecutor the day before trial that she remembered Winzer saying he would "have her blown away." Pauline also took the opportunity to make several unsolicited remarks to and about Winzer in front of the jury over the trial court's objections.

Officer Dickson then testified that Parrish told him that Winzer said, "I'll smoke you and your daughter," and that Mercedes told him she overheard Winzer's remark. Dickson also testified that Parrish said Winzer "made a motion with his hand toward his waistband" and that she saw something shiny in his waistband that she thought was a gun, though she did not see it clearly. There is no evidence that Mercedes or anyone else either saw the gesture or told Dickson about it. The evidence is the fulcrum of the state's case and Winzer's conviction.

Five days after making the threat, Winzer again turned up at Parrish's house and argued with her. Parrish showed officers two broken doors and two phone lines that had been pulled out of the wall, but there was no evidence to show who caused the damage. The State also introduced evidence showing that Parrish had a protective order against Winzer.

Winzer was convicted and sentenced to serve nine years in prison.

II. ANALYSIS

We review a district court's denial of a habeas petition de novo. See Paradis v. Arave, 20 F.3d 950, 953 (9th Cir. 1994). Alleged Confrontation Clause violations are also reviewed de novo. Id. at 956.

A. AEDPA Standards

The Anti-terrorism and Effective Death Penalty Act ("AEDPA") governs because Winzer filed his petition in the district court on September 1, 2004. Lindh v. Murphy, 521 U.S. 320, 326, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997); Barajas v. Wise, 481 F.3d 734, 738 (9th Cir.2007).

On the merits, and under AEDPA, Winzer may obtain relief only in one of two circumstances. First, he may obtain relief if the state courts' denial of his claim "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." 28 U.S.C. § 2254(d)(1). "Clearly established Federal law" refers to the holdings, as opposed to the dicta, of the Supreme Court's decisions. See Carey v. Musladin, ___ U.S. ___, 127 S.Ct. 649, 653, 166 L.Ed.2d 482 (2006). A state-court decision is "contrary to" clearly established Supreme Court precedent if the decision "contradicts the governing law set forth in [the Supreme Court's] cases." Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). A state-court decision will be an "unreasonable application" of federal law "if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case." Id. at 407, 120 S.Ct. 1495.

Second, Winzer may obtain relief if the state courts' decision was "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). Federal courts must presume the correctness of the state court's factual findings, but Winzer may rebut the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).

Finally, a federal court sitting in habeas jurisdiction must be convinced that the state court's decision is "more than incorrect or erroneous." Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166, 155 L.Ed.2d 144 (2003). The state court's decision must be "objectively unreasonable." Id.

B. Clearly Established Supreme Court Law on Hearsay Exceptions and the Confrontation Clause

In 1965, the Sixth Amendment's Confrontation Clause was recognized as a component of the Fourteenth Amendment's Due Process Clause and applied to the States. At that time, the Supreme Court noted:

There are few subjects, perhaps, upon which this Court and other courts have been more nearly unanimous than in their expressions of belief that the right of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair trial which is this country's constitutional goal.

Pointer v. Texas, 380 U.S. 400, 405, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). "The Confrontation Clause advances [this goal] by ensuring that convictions will not be based on the charges of unseen and unknown—and hence unchallengeable—individuals." Lee v. Illinois, 476 U.S. 530, 540, 106 S.Ct. 2056, 90 L.Ed.2d 514 (1986).

The Confrontation Clause provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const. am. VI. Read literally, the Clause would amount to a blanket prohibition on all hearsay testimony. It has never been construed so broadly. But when the prosecution seeks to offer a hearsay statement, courts must decide whether the statement is so reliable that the prosecution may safely "deny the accused his usual right to force the declarant to submit to cross-examination, the greatest legal engine ever invented for the discovery of truth." Lilly v. Virginia, 527 U.S. 116, 124, 119 S.Ct. 1887, 144 L.Ed.2d 117 (1999) (internal citation omitted) (quoting California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970)). Courts must bear in mind several possibilities:

The declarant might be lying; he might have misperceived the events which he relates; he might have faulty memory; his words might be misunderstood or taken out of context by the listener. And the ways in which these dangers are minimized for in-court statements— the oath, the witness' awareness of the gravity of the...