Fratta v. Quarterman

• Decision Date: 22 July 2008
• Docket Number: No. 07-70040.,07-70040.
• Citation: 536 F.3d 485
• Parties: Robert Alan FRATTA, Petitioner-Appellee-Cross-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant-Cross-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

536 F.3d 485

Robert Alan FRATTA, Petitioner-Appellee-Cross-Appellant, v. Nathaniel QUARTERMAN, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant-Cross-Appellee.

No. 07-70040.

United States Court of Appeals, Fifth Circuit.

July 22, 2008.

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James Gregory Rytting (argued), Hilder & Associates, Houston, TX, for Robert Alan Fratta.

Tina J. Miranda (argued), Postconviction Litigation Div., Austin, TX, for Nathaniel Quarterman.

Before KING, DAVIS and CLEMENT, Circuit Judges.

KING, Circuit Judge:

In this petition for writ of habeas corpus, the district court conditionally granted relief to petitioner Robert Alan Fratta, a Texas death-row inmate. Fratta was convicted of capital murder and sentenced to death in Texas state court for arranging the murder-for-hire of his wife. The district court determined that Fratta's Confrontation Clause rights were violated by the admission into evidence at trial of certain out-of-court statements made by the two men who carried out the murder (who were tried separately and were unavailable for cross-examination). Respondent Nathaniel Quarterman now appeals the district court's conditional grant of habeas relief. For the reasons that follow, we conclude that the district court was correct in concluding that Fratta is entitled to habeas relief based on the violations of the Confrontation Clause that occurred at his trial. Accordingly, we affirm the judgment of the district court. In addition, Fratta requests a certificate of appealability on other issues that the district court determined did not warrant habeas relief. This request is denied.

I. BACKGROUND

The district court identified two sets of statements that were improperly admitted in violation of Fratta's Confrontation Clause rights at trial: (1) custodial confessions given to law enforcement officials by the two men who carried out the murder; and (2) additional statements concerning the murder made by one of the men to his girlfriend. On appeal, the State¹ does not challenge the district court's determination that Fratta's Confrontation Clause rights were violated by the admission of the custodial confessions at trial. Nor does the State argue that the district court was wrong in concluding that the error in admitting the custodial confessions, considered in conjunction with the statements made to the girlfriend, was harmful. Rather, the State's argument relates strictly to the district court's determination that the statements made to the girlfriend were admitted in violation of the Confrontation Clause. The State does not defend the rationale offered by the state court for admitting these statements. Instead, it argues that, though the state court may have applied federal law incorrectly in resolving Fratta's challenge to these statements, their admission nonetheless was consistent with the Confrontation Clause because they possess sufficient indicia of reliability. Considering these statements admissible and considering the remaining admissible evidence at trial, then, the State argues that the error in admitting the custodial confessions was harmless.

Though the above provides an adequate bird's-eye view of the issues on this appeal, we note that things are slightly more complicated on the ground, due to the fact that this case has been and must be viewed through the prism of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). Thus, we must determine whether the district court was correct in concluding that the state court's adjudication of Fratta's Confrontation Clause claims resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law. We must also consider whether the district court was correct in concluding that the errors identified by the court were not harmless. Since the harmless error analysis will require an evaluation of the impact of the improperly admitted statements in determining the jury's verdict, the two sets of out-of-court statements at issue are set out in detail below in the context of the other evidence that was adduced by the State at trial. First, though, we provide a brief overview of the case and applicable Confrontation Clause law.

A. Overview

Fratta was charged with the capital murder of his wife, Farah Fratta ("Farah"), under a theory of employing another to commit the murder for remuneration or the promise of remuneration. According to the State, the principals in the murder plot were Fratta, Joseph Prystash, and Howard Guidry. Fratta made the arrangements with Prystash, who in turn solicited Guidry to be the triggerman, with Prystash serving as the getaway driver. Prystash lived with his girlfriend, Mary Gipp, in the apartment next door to Guidry. Gipp, who also knew Fratta and Farah from the gym where she and Prystash worked out, had some knowledge of the plan to kill Farah but did nothing to stop it. Several months later, however, after Guidry was arrested for an unrelated bank robbery, Gipp informed the police that Guidry had been involved in Farah's death. Prystash and Guidry ultimately gave custodial confessions in which they implicated themselves, each other, and Fratta in the murder plot. They were tried separately for capital murder, and each was convicted and sentenced to death.

Prystash and Guidry did not testify at Fratta's trial, but a sheriff's deputy, Sergeant Danny Ray Billingsley, selectively related the substance of their confessions to the jury. In eliciting portions of the custodial confessions from Sgt. Billingsley, the State took pains to avoid eliciting any statements from the confessions that incriminated Fratta by name; however, the confessions as related by Sgt. Billingsley made it quite clear that Prystash and Guidry had been engaged by someone to kill Farah for remuneration. Thus, for example, the State elicited testimony from Sgt. Billingsley to the effect that Prystash and Guidry expected to receive $1,000 and a Jeep as remuneration for the killing, but quite carefully did not inquire as to the source of that remuneration. Mary Gipp also testified at Fratta's trial, and related several statements that Prystash had made to her concerning the murder, both before and after it had been committed. It is these two sets of statements—the custodial confessions and Prystash's statements to Gipp—that formed the basis for the district court's grant of habeas relief.

Fratta's trial was conducted, and his direct appeal became final, before the Supreme Court issued its decision in Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), which significantly changed Confrontation Clause doctrine. The Court has subsequently decided that the rule announced in Crawford is not retroactive to cases already final on direct review. See Whorton v. Bockting, ___ U.S. ___, 127 S.Ct. 1173, 1177, 167 L.Ed.2d 1 (2007). Since the judgment in Fratta's case was already final on direct review when Crawford's rule was announced, Fratta may not rely on Crawford in this habeas proceeding and must depend solely on the pre-Crawford law that governed when his direct appeal became final. See id. at 1180. This law "held that the Confrontation Clause permitted the admission of a hearsay statement made by a declarant who was unavailable to testify if the statement bore sufficient indicia of reliability, either because the statement fell within a firmly rooted hearsay exception or because there were `particularized guarantees of trustworthiness' relating to the statement in question." Id. at 1178 (quoting Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980)).

B. The Evidence Adduced at Trial

1. The Divorce Proceedings

Fratta and Farah were married in 1983 and had three children. Fratta was employed by Missouri City, Texas, as a public safety officer.² The Frattas' marriage experienced difficulties, and Farah filed for divorce in March 1992. In the course of the divorce proceedings, Farah described in a deposition how Fratta's bizarre and deviant sexual demands caused her to seek the divorce.³ Fratta and Farah underwent psychological evaluations for the purpose of determining which parent should be named managing conservator of the children, in anticipation of a trial on the issue of child custody. A trial date was set in family court for November 28, 1994.

A number of witnesses testified that as the divorce proceedings progressed and the custody trial neared, Fratta made no secret of his bitter feelings toward Farah and often expressed a desire to see her dead. One of Fratta's acquaintances from the gym, for example, testified that after one fight with Farah, Fratta "made a statement about using a 9 mm" and "putting some slugs into Farah." To another acquaintance, Fratta talked of shooting Farah in the head. One of Fratta's co-workers, a fellow Missouri City public safety officer, testified that rather than pay child support to Farah, Fratta said "he would kill her and he would be out in five years and get his kids back, but that he wouldn't pay her." Similarly, another Missouri City public safety officer recalled a conversation in which Fratta was "upset about his child custody payments" and stated that, "I just ought, I'll kill her, and I'll do my time and when I get out, I'll have my kids." Fratta also discussed killing Farah with James Podhorsky, a friend from the gym who sometimes went out with Fratta to topless clubs. Podhorsky testified that:

Fratta said that, when we would go out he would take his gun with him. And I didn't think it was a real good idea a police officer or not we should have a gun in the car if we were going to go out drinking in clubs and his response was well, the reason I'm bringing the gun is in case we run into Farah, I'll shoot her myself and make it look like a car jacking.

Fratta also asked several people if they, or anyone they...