Baez Arroyo v. Dretke, Civ.A.SA-01-CA-0976-XR.

• Court: United States District Courts. 5th Circuit. Western District of Texas
• Writing for the Court: Rodriguez
• Citation: 362 F.Supp.2d 859
• Parties: Randy BAEZ ARROYO, Petitioner, v. Douglas DRETKE, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.
• Docket Number: No. Civ.A.SA-01-CA-0976-XR.,Civ.A.SA-01-CA-0976-XR.
• Decision Date: 29 March 2005

362 F.Supp.2d 859 Randy BAEZ ARROYO, Petitioner,
v.
Douglas DRETKE, Director, Texas Department of Criminal Justice, Institutional Division, Respondent. No. Civ.A.SA-01-CA-0976-XR. United States District Court, W.D. Texas, San Antonio Division. March 29, 2005.

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Rogelio F. Munoz, Attorney at Law, Uvalde, TX, Anthony Martin Smith, Law Office of Anthony Martin Smith, San Antonio, TX, David R. Dow, Texas Innocence Network, Gerald J. Bierbaum, Law Office of Gerald Bierbaum, Houston, TX, for Petitioner.

W. Erich Dryden, Office of the Attorney General State of Texas, Austin, TX, for Respondent.

ORDER

RODRIGUEZ, District Judge.

On this date the Court considered the Petition for Writ of Habeas Corpus. Petitioner seeks review of his March 1998 conviction for capital murder and sentence of death through this habeas action pursuant to 28 U.S.C. § 2254. Petitioner claims that he was convicted in violation of the

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Confrontation Clause and his right to a fair trial and due process. Petitioner also claims that he was denied effective assistance of counsel in violation of the Sixth Amendment, and that the imposition of the death penalty upon him is unconstitutional because he was under the age of 18 at the time of the offense. After considering the arguments and the record, the Court finds that all relief requested by Petitioner is denied except for Petitioner's claim that the death penalty cannot be assessed against him due to his age, on which his claim is conditionally granted.

I. Factual and Procedural Background

Petitioner was convicted and sentenced to death for the March 10, 1997 murder of Air Force Captain Jose Cobo.

A. The Offense

There is no genuine dispute about the operative facts surrounding Petitioner's offense. On the evening of March 10, 1997, Petitioner and Vincent Gutierrez, as well as several other persons, met at the residence of Christopher Suaste to discuss Petitioner's desire to steal a Mazda RX-7 automobile for parts.¹ The following morning, Suaste drove Petitioner and Gutierrez first to the residence of Miguel Riojas, Petitioner's cousin, and then to a nearby apartment complex where a red Mazda RX-7 owned by Air Force Captain Jose Cobo was parked.² Gutierrez and Petitioner entered the driver's side of the red Mazda and drove the car out of the apartment complex.³ Suaste drove his vehicle back to his home; seeing Captain Cobo lying on the shoulder of the highway with blood stains on his shirt along the way.⁴

Several hours later, Suaste received a pair of telephone calls, first from Petitioner and then from Gutierrez, asking Suaste to come to a location in South San Antonio to pick them up.⁵ Suaste, along with Sean Lowe, drove to the location in question and noticed that Gutierrez was wearing a brown tee shirt and a pair of black gym shorts bearing the "USAF" logo, neither of which he had been wearing previously.⁶ When Suaste criticized Gutierrez's apparel, Gutierrez explained that his clothes had blood on them and that he had obtained the clothes he then had on from the back of the red Mazda.⁷

When Lowe and Suaste questioned Petitioner and Gutierrez about what had happened, Gutierrez stated that he had forced Cobo at gunpoint to move to the passenger seat of the red Mazda and then climbed into the rear of the vehicle while Petitioner drove the vehicle from the apartment complex. Gutierrez explained that when Cobo had begged for his life and offered his wallet, Gutierrez had reassured him that he would be released. Nonetheless, Cobo attempted to exit the vehicle but was restrained by a seat belt. At that point, Gutierrez grabbed Cobo to prevent him from leaping from the moving vehicle and Petitioner yelled, "Shoot him. Shoot him. He's trying to escape." Gutierrez then

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fired his pistol twice, striking Cobo in the back and causing Cobo to begin choking and coughing up blood. As they drove on, Gutierrez informed Petitioner that he did not want to drive around with a "dead man" in the car with them and, after he directed Petitioner to slow the vehicle, he shoved Cobo out of the moving vehicle onto the shoulder of the highway.⁸ Gutierrez also displayed two spent shell casings he identified as having come from the shooting.⁹ Later that evening, when a television news report about Cobo's murder was broadcast on the local news, Gutierrez again described the shooting and told others at Suaste's apartment that Cobo got what he deserved for trying to escape.¹⁰

Petitioner voluntarily confessed his involvement in Cobo's murder the same night and led police to the .357 caliber handgun Gutierrez had used to kill Cobo, as well as the .25 caliber handgun Petitioner had carried during Cobo's robbery and kidnaping.¹¹ On May 28, 1997, a Bexar County grand jury indicted Petitioner, Gutierrez, and Suaste on charges of capital murder arising from Cobo's murder.¹²

B. Pretrial Proceedings

At a hearing December 1, 1997, the prosecution announced that it had reached an agreement to sever the case against Suaste from that of Petitioner and Gutierrez.¹³ Petitioner and Gutierrez both moved for severance of their joint capital murder trial.¹⁴ During the course of that hearing, the prosecution expressly and specifically represented that it had no intention of presenting any testimony at a joint trial establishing that either of the remaining two co-defendants had made any oral statements implicating the other defendant unless the trial court first authorized the admission of such testimony at a hearing outside the jury's presence.¹⁵

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Based on those representations, the state trial court denied both motions for severance.¹⁶

At a hearing held January 16, 1998, both Petitioner and Gutierrez re-urged their motions for severance, but were denied. The state trial court granted the defendants' motion in limine and instructed the prosecution that it would not admit any oral statements made by either of the codefendants which implicated the other defendant in Cobo's murder without a hearing.¹⁷

C. Capital Murder Trial

The guilt-innocence phase of Petitioner's and Gutierrez's joint capital murder trial commenced on February 23, 1998. The jury heard testimony from both Suaste and Lowe, summarized above, as to Gutierrez's explanation of Cobo's robbery, kidnapping, and murder, including his statements implicating Petitioner. The medical examiner testified that Cobo died from two gun shot wounds to the back, either of which would have proven fatal by itself.¹⁸ The prosecution introduced testimony from law enforcement officers and others regarding the recovery of Cobo's abandoned vehicle and Gutierrez's blood-stained clothing from locations near where Suaste and Lowe had picked up Gutierrez and Petitioner. Several other prosecution witnesses testified that they had seen Cobo's struggle to exit the red Mazda and Cobo's body being pushed from the moving vehicle during morning rush hour traffic. A prosecution ballistics expert testified that the .357 handgun to which Petitioner led police on the evening of the murder had fired both a bullet that fell out of Cobo's chest when an Air Force flight surgeon attempted cardiopulmonary resuscitation at the scene and another bullet recovered from the floorboard of the red Mazda.¹⁹ A prosecution DNA expert testified that the blood found on Gutierrez's clothing matched that of Cobo.²⁰ Other prosecution witnesses identified the black USAF gym shorts and brown tee shirt worn by Gutierrez when Suaste and Lowe picked him and Petitioner up as similar to exercise clothing Cobo kept in his vehicle.²¹

While Petitioner offered no evidence at the guilt-innocence phase of trial, Gutierrez attempted to present an alibi witness and accused Sean Lowe of being the person who actually shot Cobo. The jury found both Petitioner and Gutierrez guilty of capital murder on March 2, 1998.²²

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Petitioner moved for severance of the joint trial prior to the beginning of the punishment phase of trial, but was again denied. The prosecution's punishment phase witnesses testified regarding both Petitioner's and Gutierrez's violent past, including numerous incidents involving gun violence, robbery, and association with gangs. Both Petitioner's and Gutierrez's trial counsel presented testimony regarding each defendants' good reputation in the community and tragic details about their past. On March 6, 1998, the jury returned its verdicts at the punishment phase of trial and, based on the jury's answers to the capital sentencing special issues, the trial court sentenced both defendants to death.²³

D. Post-conviction Proceedings

Petitioner took direct appeal of his conviction and death sentence to the Texas Court of Criminal Appeals. Relevant to this proceeding, Petitioner presented seven grounds for relief on direct appeal, consisting of arguments that the trial court erred in denying Petitioner's motions for severance and thereby violated the principle announced in Bruton v. United States, the trial court erred in admitting Suaste's hearsay testimony regarding Gutierrez's statement that Petitioner had told Gutierrez to shoot Cobo, thereby violating Petitioner's rights under the Confrontation Clause, and the trial court erred in failing to give an anti-parties jury instruction at the punishment phase of trial. In an unpublished opinion issued May 9, 2001, the Texas Court of Criminal Appeals affirmed Petitioner's conviction and sentence. Arroyo v. State, Cause No. 73,117 (Tex.Crim.App. May 9, 2001) (unpublished). On October 9, 2001, the United States Supreme Court denied Petitioner's petition for writ of certiorari. Arroyo v. Texas, 534 U.S. 949, 122 S.Ct. 344, 151 L.Ed.2d 259 (2001).

On May 31, 2000, Petitioner filed an application for state habeas corpus relief. Petitioner's claims included that the prosecution violated the requirements of Brady v. Maryland by...