Jones v. Cain

• Decision Date: 15 March 2010
• Docket Number: No. 09-30174.,09-30174.
• Citation: 600 F.3d 527
• Parties: Terrance JONES, Petitioner-Appellee, v. Burl CAIN, Warden, Louisiana State Penitentiary, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

600 F.3d 527

Terrance JONES, Petitioner-Appellee, v. Burl CAIN, Warden, Louisiana State Penitentiary, Respondent-Appellant.

No. 09-30174.

United States Court of Appeals, Fifth Circuit.

March 15, 2010.

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Anne Mary Wallis (argued), Terry Michael Boudreaux, Asst. Dist. Attorneys, Gretna, LA, for Respondents-Appellant.

Robin Elise Schulberg, Asst. Fed. Pub. Def. (argued), Virginia Laughlin Schlueter, Fed. Pub. Def., New Orleans, LA, for Petitioner-Appellee.

Before REAVLEY, CLEMENT and SOUTHWICK, Circuit Judges.

EDITH BROWN CLEMENT, Circuit Judge:

Finding that a state court unreasonably applied clearly established federal law by holding that no Sixth Amendment violation occurred when a jury heard recorded testimony from a deceased witness to a murder, the district court granted the defendant's petition for a writ of habeas corpus. We affirm the grant of the writ but vacate the portion of the order requiring the State to dismiss the underlying indictment if it fails to retry the defendant within 120 days.

FACTS AND PROCEEDINGS

A. Factual Background

In November 2001, a jury convicted Terrance Jones of second-degree murder for the shooting of Marty Martin in the early morning of July 28, 1997.¹ Pursuant to Louisiana's mandatory sentencing rules, the state trial court sentenced him to life in prison without the possibility of parole.

Responding to a call about a shooting, a Jefferson County Sheriff's Deputy discovered Martin's body in a blue Oldsmobile adjacent to James Artberry's house in Marrero, Louisiana. Martin had been shot once in the chest. EMS technicians who arrived soon after found that Martin had no vital signs.

Artberry told the police he had witnessed the shooting. He gave a short statement at the scene, including a description of the perpetrator and the perpetrator's car. Detective Mike Tucker then took him to the Criminal Investigations Bureau for questioning. Artberry gave two recorded statements to Detective Tucker. In the first, taken after 3:00 a.m., Artberry said that he had seen Martin at around 10:00 p.m. that night at a bar in Marrero. He explained that Martin asked him to help find a prostitute, that he agreed to do so, but that the search was unsuccessful and the two returned to the bar. Artberry said he walked home without Martin and later saw two black men in a Pontiac Grand Prix with tinted windows and a yellow sticker on the back window pull up in front of his house. He claimed to have seen one of the two men shoot Martin over what appeared to be a drug deal gone wrong. He stated that he did not get a good look at the shooter's face or the passenger in the shooter's car, and that he could not identify the shooter.

Artberry gave the second recorded statement shortly after 4:00 a.m. In it, he acknowledged his failure to disclose some information during the first statement, which he blamed on his fear of the shooter; he also explained that he had been involved in the drug deal. In this version of the story, after the unsuccessful search for a prostitute, Martin asked Artberry where he could get crack cocaine. Artberry took Martin to a woman who flagged down the blue Grand Prix and told the occupants that Martin wanted drugs. Martin and Artberry followed the Grand Prix in Martin's car and met its two black male passengers outside Artberry's house. Artberry stated that he saw Martin approach the passenger window of the Grand Prix, where he received a rock of crack cocaine and handed over some money. The passenger claimed that Martin had given him only a one-dollar bill instead of a twenty. Martin looked in his pockets and then went to his car and rummaged around inside it. At this point, the passenger in the Grand Prix told the driver to "knock his fucking head off." After looking at Artberry and telling him that he blamed Artberry for what had happened, the driver shot Martin twice. During this second interview, Artberry identified the shooter as a black man named Terrance who lived on Poe Street in Westwego. Artberry claimed to have known Terrance for several years.

Subsequently, the police composed a photo lineup based on this information. Artberry did not identify any of the subjects as the shooter. When presented with a second lineup containing a picture of Jones, however, Artberry picked him out as the shooter. After this identification, two detectives recorded a third interview with Artberry at his home.²

Artberry testified at a suppression hearing before Jones's first trial. He stated that he had been able to identify the perpetrator in a photo lineup and that the perpetrator was named "Terrance." He identified Jones in court as the same person he had identified in the lineup. Jones's counsel cross-examined Artberry about these statements but not about the recorded statements he had given the police; Jones's defense counsel did not learn that the recorded statements existed until after the first trial had begun. Shortly after the suppression hearing, and before the first trial, Artberry died of a drug overdose.

B. Procedural Background

1. First trial, mistrial, and state appeals

Jones's first trial began in July 2000. Before the trial, he moved to exclude Artberry's suppression hearing testimony. The trial court denied the motion. The state intermediate appellate court and supreme court affirmed the denial. State v. Jones, 766 So.2d 1261 (La.2000) (table); see State v. Jones, 791 So.2d 622, 624 (La.2001) (hereinafter "Jones I"). During its direct examination of Detective Tucker, the State sought to introduce Artberry's first two recorded statements. This was the first time that Jones's defense counsel learned of their existence. Defense counsel objected and moved for a mistrial. The trial court reversed its pretrial suppression ruling and granted the motion. The state intermediate appellate court affirmed. It held that, in light of the undisclosed statements, the defense had not had an opportunity to fully and effectively cross-examine Artberry at the suppression hearing. See Jones I, 791 So.2d at 624.

The Louisiana Supreme Court reversed. Though it noted "substantial discrepancies between Artberry's second statement to Detective Tucker and his testimony at the suppression hearing," the court held that Jones had a fair opportunity to cross-examine Artberry at the suppression hearing and that Artberry's hearing testimony satisfied Louisiana's hearsay exception for prior recorded testimony. Id. at 626-28. It remanded the case for retrial.

2. Second trial and state appeals

Jones's second trial began in November 2001. The prosecutor's opening statement included a narrative of the crime that relied on the recorded statements Artberry gave to the police. The prosecutor also told the jury that Artberry made two statements while at the police station—one in which he denied knowing who the shooter was, and a second in which he claimed he could identify the shooter. Jones's defense counsel, in his opening statement, suggested that Martin was killed after quarreling with Artberry and that Artberry changed his story when he realized he was a suspect.

In accordance with the state supreme court's ruling, the State introduced Artberry's cross-examined testimony from the suppression hearing without objection during its case-in-chief. The State again called Detective Tucker as a witness. Tucker testified that he had taken three statements from Artberry on the night of the murder and then began to testify about what Artberry had told him. He related the substance of the first recorded statement—the one in which Artberry said that he could not identify the shooter— without objection. When Tucker began to testify about what Artberry told him during the second recorded statement—the one inculpating Jones—defense counsel objected on hearsay grounds. The trial court overruled the objection, explaining that Tucker could testify about Artberry's statements "for purposes of him relating. . . how he conducted his investigation." Jones's counsel, citing the un-cross-examined nature of the hearsay statements, moved for a mistrial. The trial court denied the motion and allowed the State to continue its examination of Tucker. It did not give a limiting instruction.

The State then moved to introduce transcribed copies of Artberry's statements and play the recordings to the jury.³ Jones's counsel again objected on hearsay and Confrontation Clause grounds. The State argued that the Louisiana Supreme Court decision on the suppression hearing allowed the introduction of the recorded statements. It also argued that the statements should be allowed into evidence to bolster Artberry's credibility. The trial court admitted the evidence. The State made use of the statements during the remainder of its case-in-chief. It asked Tucker to explain his theory of the crime based in part on Artberry's statements, and Tucker's response relied almost exclusively on the recorded statements.⁴ The jury convicted Jones of second-degree murder.

After he was found guilty and sentenced, Jones appealed to the state intermediate appellate court. That court recognized that "the State primarily used the recorded statements to bolster its case against defendant." Jones II, 841 So.2d at 975. It rejected the two main rationales advanced at trial for admitting the evidence: first, that the evidence could come in as part of Tucker's explanation of how he investigated the crime, id. at 974, and second, that the state supreme court's decision about the suppression hearing testimony also allowed the introduction of the recorded statements, id. at 975.

The appellate court held, however, that the recorded statements could be admitted, pursuant to Louisiana Code of Evidence article 801(D)(1)(b), "as consistent statements intended to rebut an express or implied charge against Artberry of recent fabrication or improper influence or motive." Id. (...