Richardson v. Griffin

• Citation: 866 F.3d 836
• Decision Date: 08 August 2017
• Docket Number: No. 16-1700,16-1700
• Parties: Christopher RICHARDSON, Petitioner-Appellant, v. Kathy GRIFFIN, Superintendent, Miami Correctional Facility, Respondent-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (7th Circuit)

866 F.3d 836

Christopher RICHARDSON, Petitioner-Appellant,

v.Kathy GRIFFIN, Superintendent, Miami Correctional Facility, Respondent-Appellee.

No. 16-1700

United States Court of Appeals, Seventh Circuit.

Argued May 30, 2017

Decided August 8, 2017

Rehearing and Rehearing En Banc Denied September 7, 2017

Elana Nightingale Dawson, Charles S. Dameron, Attorneys, LATHAM & WATKINS LLP, Washington, DC, for Petitioner-Appellant.

Jesse Drum, Andrew A. Kobe, Attorneys, OFFICE OF THE ATTORNEY GENERAL, for Respondent-Appellee.

Before Wood, Chief Judge, and Ripple and Rovner, Circuit Judges.

Wood, Chief Judge.

The Sixth Amendment to the U.S. Constitution gives a criminal defendant the right "to be confronted with the witnesses against him"; that right applies to both federal and state prosecutions. Crawford v. Washington , 541 U.S. 36, 42, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004) (citing Pointer v. Texas , 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965) ). In this case, Christopher Richardson contends that Indiana's courts violated his Confrontation Clause rights when they permitted the use at his trial of testimonial, out-of-court statements of witnesses who fingered him as the shooter. We appreciate how narrow the path to collateral relief is for state prisoners. We nonetheless conclude that Richardson has shown that Indiana's courts unreasonably applied the Supreme Court's Confrontation Clause cases. We therefore reverse the decision of the district court denying relief under 28 U.S.C. § 2254.

I

Late in the evening of August 20, 2010, police officers in Gary, Indiana, were summoned to the scene of a shooting near an apartment building in the downtown area. They learned that Simmuel Mobley, a local resident, had been shot in the leg and taken to a nearby hospital; the shooter had fled. Although Detective Art Azcona, the lead officer on the case, looked around the neighborhood for 20 minutes or so, he had trouble finding eyewitnesses. The only physical evidence the police found was one spent shotgun shell. Earlier that day, Richardson had argued with his girlfriend while the two stood in Mobley's front yard. Mobley ordered them to leave, and apparently they did so.

The only person who was willing to give a formal statement to Detective Azcona was Lazarus Holden, who said that someone named "Chris" was the shooter. Azcona also testified that other sources who were present told him that a person named Chris had shot Mobley. He never identified those "sources." Azcona decided to go to the hospital to see if Mobley could help out. Mobley could not, because he was about to go into emergency surgery. About three weeks later, police officer Jeff Hornyak received an anonymous phone call in which the caller identified Richardson as the shooter. On September 15, the police arrested Richardson.

The day after the arrest, Azcona returned to the hospital and spoke with Mobley for the first time. He brought prepared questions, which contained numerous references to "Chris." For example, before Mobley made any identification Azcona asked the following questions: "Can you describe what Chris looks like"; "Is Chris also known as Jay-Z"; "Did Chris shoot you in your right thigh"; "Did you hear Chris threaten to kill you"; and "How long have you known Chris." Following these questions, Azcona showed Mobley a six-man photo array and asked him not if he could identify the shooter, but instead if he could identify "Chris Richardson." Mobley, who had known Richardson for a year, picked out his picture without any trouble, and then said that Richardson was the shooter. The next day Azcona filed formal charges against Richardson for aggravated battery, battery by means of a dangerous weapon, and battery resulting in serious bodily injury.

The trial took place in July 2011. The state presented five witnesses: Mobley; Azcona; investigator Cheryl Stanley; and two bystanders, Quanilla Strong and Shawnye Miller. Conspicuously absent from the list was Holden, who at no point testified during trial. The state's strongest evidence—indeed, in some ways its only evidence—came from Mobley himself. Mobley admitted that he was drunk at the time he was shot, but he recalled ordering Richardson off of his property earlier that day, and then later running into Richardson by his car. Mobley recounted that Richardson said, "[Y]ou ain't going to talk to me like you talked to other people," whereupon he shot Mobley in the leg.

No other witness was able to say who the shooter was. Strong and Miller, the other two people who were at the scene, had no direct information. They ran to Miller's car when they heard that someone had a gun. Although an argument was supposedly underway, Miller did not hear it, although she did hear a gunshot. Presented with a lineup, Miller could not identify anyone. Strong said that she saw the shooter, and she described his complexion and height. She also heard snatches of conversation, including one man's saying "if you're going to shoot me, go ahead and shoot me," and another replying "I will shoot you, don't test me, I'll do it." She then heard a shot, and a third person said "Chris, you didn't have to shoot him, man, why did you shoot him?" The police never asked Strong to identify the shooter from a lineup, and though she was asked twice in court to point him out, she could not do so.

Stanley, the investigator, was the one who found the spent shotgun shell, but she did not test it for fingerprints. She also described Mobley's bloody clothing, but that was all she could add.

Detective Azcona was left with the task of knitting together the state's case. At this point, what can only be described as a flood of hearsay poured out. On direct examination, Azcona began by telling the jury about Holden's identification of the shooter—an account that was presented for its truth. Richardson's attorney objected. After a sidebar, the trial judge decided to let Azcona describe the course of his investigation and explain how he first obtained the name "Chris." Richardson's lawyer again objected, but the court cut him off. The prosecutor then asked Azcona if he had taken a statement from the absent Holden, and Azcona responded affirmatively. In response to another question, Azcona confirmed that he already had come across the name Chris Richardson by the time he went to the hospital to talk to Mobley. The state asserted that it was trying only to find out that Azcona obtained a name from Holden, and that it did not "need" him to say the name "Chris." But that did not stop it from repeating the name several times.

On cross-examination, defense counsel asked Azcona whether it would be fair to say that on five separate occasions he mentioned the name "Chris" to Mobley before he heard Mobley's version of the incident. Azcona started to answer by identifying the source of the name (i.e. Holden), but defense counsel cut him off before he could complete the thought. The prosecutor objected and argued that the defense had opened the door to an exploration of the source of Azcona's information. The court agreed with the prosecutor, and so it allowed Azcona to explain that his use of "Chris" rested on Holden's statement and an anonymous tip. Azcona came back to this point on redirect examination, again confirming that the name "Chris" came up during his initial investigation and when he took Holden's statement. In her closing argument, the prosecutor obliquely referred to this as "corroborating testimony" for Mobley's identification.

The jury convicted Richardson on all counts. After his appeal in the state court, he wound

up with a sentence only for aggravated battery, for state double-jeopardy reasons. He argued on appeal that Azcona's testimony violated the Confrontation Clause of the Sixth Amendment. Although the Indiana Court of Appeals expressed some uncertainty over the question whether this issue had been preserved through counsel's objections, it decided to address the argument on the merits. That was as far as Richardson got, however. The appellate court ruled that, to the extent that there was error in Azcona's statement on cross-examination to the effect that Holden and the anonymous caller had identified him by name, that error was invited. In addition, the court found any error stemming from Azcona's direct testimony was harmless, because it thought that the conviction was supported by substantial independent evidence—namely, Mobley's identification and Strong's testimony that immediately after the shots, an unknown man said "Chris, you didn't have to shoot him." After exhausting his state-court remedies, Mobley turned to the federal court for relief under 28 U.S.C. § 2254. He failed again, but this court granted a certificate of appealability on the Confrontation Clause question, to which we now turn.

II

If Richardson's Confrontation Clause rights were not violated by what went on at his trial, our task would be simple: no error, no relief. If those rights were violated, on the other hand, then we must tackle the reasons the Indiana Court of Appeals gave for overlooking the error: that it was invited, or that it was harmless. In undertaking these inquiries, we must follow the standard of review established in the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), as codified in 28 U.S.C. § 2254(d). That statute forbids the issuance of a writ of habeas corpus for a state prisoner unless the operative state-court decision "(1) 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; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."

A

In Crawford v. Washington, 541 U.S. 36, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Supreme Court addressed the reach of the Confrontation Clause. It applies, the Court said, to " ‘witnesses'...