Barker v. Morris

• Decision Date: 24 May 1985
• Docket Number: No. 83-1749,83-1749
• Citation: 761 F.2d 1396
• Parties: 19 Fed. R. Evid. Serv. 115 Richard A. BARKER, Petitioner-Appellant, v. Paul MORRIS, Warden, California State Prison at Folsom, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1396

761 F.2d 1396

19 Fed. R. Evid. Serv. 115

Richard A. BARKER, Petitioner-Appellant, v. Paul MORRIS, Warden, California State Prison at Folsom, et

al., Respondents-Appellees.

No. 83-1749.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted Sept. 14, 1983.

Decided May 24, 1985.

Eleanor M. Kraft, Vacaville, Cal., for petitioner-appellant.

Clifford K. Thompson, Jr., Deputy Atty. Gen., San Francisco, Cal., for respondents-appellees.

Appeal from the United States District Court for the Northern District of California.

Before KENNEDY and REINHARDT, Circuit Judges, and HOFFMAN, ^* District Judge.

KENNEDY, Circuit Judge:

The case before us presents a question requiring the interpretation of the Confrontation Clause of the Sixth Amendment of the United States Constitution. The appeal is from a denial of habeas corpus relief in the district court, after California courts, rejecting direct and collateral attacks, affirmed Richard Barker's convictions for murder in the first degree and for involuntary manslaughter. We conclude that admission at trial of sworn videotaped testimony by an eyewitness who died prior to trial did not violate the Confrontation Clause, because of the necessity for the testimony and the particular guarantees of trustworthiness attached to it. We affirm the district court's denial of the writ.

The deceased witness, "Whispering Bill" Pifer, had been a member of the Richmond (California) chapter of a motorcycle club called the Hell's Angels. He and other chapter members, including Richard Barker, Edward Carter, Rollin Crane, Chester Green, and William Moran, were present at their clubhouse on January 15, 1971 and witnessed the homicides and the surrounding events. Baker and Shull were guests of the club, or so they supposed until becoming its victims.

The petitioner, Richard Barker, was the chapter president. Barker and Crane put ten tablets of LSD in the drinks of the two guests, Shull and Baker. Shull became uncontrollable, and, on Barker's orders, he was beaten severely, tied, and carried to a back room, where he died. To eliminate a potential witness, Barker ordered other club members to kill Baker. Crane hit Baker on the head with a chair leg, and, while Barker supervised, Moran and Crane strangled Baker to death. The victims' bodies were hidden in a well at a ranch site two days later. A more detailed recitation of the crimes is contained in People v. Moran, 39 Cal.App.3d 398, 114 Cal.Rptr. 413 (1974).

Nine months after the crimes, "Whispering Bill" Pifer, knowing he would soon die of throat cancer, contacted the police and described the murders. He led them to the site where the bodies of Baker and Shull had been hidden, and the remains were discovered. Barker, Crane, Moran, and Green were indicted, but only the latter two were immediately apprehended. Barker and Crane had become fugitives, and Barker was arrested in Michigan approximately two years after the indictment.

Granted immunity from a wide-range of federal and state crimes, Pifer testified at a preliminary hearing in the proceedings against Moran and Green. Because Pifer was expected to live only a matter of weeks, the state court permitted his entire testimony to be videotaped. Defense counsel for the apprehended suspects conducted extensive cross-examination, all recorded on the videotape. No attorney represented the fugitive Barker.

Green and Moran were tried, and soon after their trial began Pifer died. After Barker's apprehension, he was brought to trial and the prosecution introduced Pifer's videotaped testimony. Green, Moran, and William Pifer, Jr., who also was present at the clubhouse when the homicides occurred, testified at trial. Their testimony was consistent with the recorded testimony of "Whispering Bill" Pifer.

After conviction, Barker exhausted his state court remedies on both direct and collateral review. In a state habeas proceeding, the California Court of Appeal, although holding that the videotape was inadmissible under the California Evidence Code, dismissed the petition under the harmless error doctrine. The state court considered the videotape to be merely cumulative in view of the overwhelming evidence introduced against Barker and, consequently, rejected Barker's challenge under the Confrontation Clause. The state court's conclusion regarding inadmissibility under the California Evidence Code is binding on us in this proceeding. See 28 U.S.C. Sec. 2254(a) (1982).

The complete trial transcript is not part of the record on this appeal, and we have not examined it exhaustively to determine whether there was sufficient independent testimony to render the admission of the videotape harmless. The question would be a close one in any event since Green and Moran were accomplices and had a motive to shift blame to Barker. Barker would have more difficulty in discrediting "Whispering Bill" Pifer's testimony on this ground because Pifer had been granted immunity and the state could present him as a more disinterested witness. While "Whispering Bill" may have had some incentive to protect his son who was also present at the scene of the crime, see Moran, 39 Cal.App.3d at 405 n. 3, 114 Cal.Rptr. at 417 n. 3, his self-interest was not as great as that of the live witnesses. We need not consider the question of harmless error, however, for we conclude that introduction of the videotaped testimony did not violate the Confrontation Clause. We turn now to our analysis of the confrontation doctrine.

Although the Sixth Amendment Confrontation Clause guarantees a criminal defendant the right to confront the witnesses against him, the clause is given a pragmatic rather than a rigid, literal construction. As the federal courts have construed the Confrontation Clause, it neither bars the admission of all out-of-court statements in a criminal proceeding nor requires that all declarants be subject to cross-examination either before or during trial. Ohio v. Roberts, 448 U.S. 56, 63, 100 S.Ct. 2531, 2537, 65 L.Ed.2d 597 (1980); United States v. West, 574 F.2d 1131, 1136-37 (4th Cir.1978); Hoover v. Beto, 467 F.2d 516, 532 (5th Cir.) (en banc), cert. denied, 409 U.S. 1086, 93 S.Ct. 703, 34 L.Ed.2d 673 (1972).

The Confrontation Clause promotes accuracy in the criminal process by ensuring that the trier of fact has a satisfactory basis for evaluating the truth of out-of-court statements. Dutton v. Evans, 400 U.S. 74, 89, 91 S.Ct. 210, 219, 27 L.Ed.2d 213 (1970) (plurality opinion); California v. Green, 399 U.S. 149, 161, 90 S.Ct. 1930, 1936, 26 L.Ed.2d 489 (1970). It permits the introduction of out-of-court statements if they are both necessary and reliable. "[W]hen a hearsay declarant is not present for cross-examination at trial, the Confrontation Clause normally requires a showing that he is unavailable. Even then, his statement is admissible only if it bears adequate 'indicia of reliability.' " Roberts, 448 U.S. at 66, 100 S.Ct. at 2539.

The testimony was necessary in the sense that it was qualitatively different from the testimony of Green and Moran, who were charged as accomplices and whose motives for testifying differed from "Whispering Bill" Pifer's in significant respects. The prosecution could have concluded that Pifer's testimony was necessary to present the trier of fact with a more complete and somewhat better balanced view of the evidence than that which would have emerged had it relied solely on the testimony of Green and Moran. On account of Pifer's death, this testimony could be presented only through the use of the videotape or the recorded transcripts of his testimony.

Our principal area of inquiry, therefore, concerns the reliability of Pifer's videotaped testimony. Although the videotaped testimony is analogous to several well-established hearsay exceptions, see, e.g., Mancusi v. Stubbs, 408 U.S. 204, 213-16, 92 S.Ct. 2308, 2313-15, 33 L.Ed.2d 293 (1972) (former testimony); Mattox v. United States, 156 U.S. 237, 243-44, 15 S.Ct. 337, 339-40, 39 L.Ed. 409 (1895) (dying declarations); United States v. Monaco, 735 F.2d 1173, 1175-76 (9th Cir.1984) (reserving whether the statement against interest exception is firmly rooted), it does not fall within any firmly rooted hearsay exception. See, e.g., Fed.R.Evid. 804(b)(1) (former testimony); Cal.Evid.Code Secs. 1290-1292 (West 1984) (same); Fed.R.Evid. 804(b)(2) (dying declaration); Cal.Evid.Code Sec. 1242 (same); Fed.R.Evid. 804(b)(3) (statements against interest); Cal.Evid.Code Sec. 1230 (same). We must determine whether there has been an adequate showing that the videotaped testimony had specific guarantees of trustworthiness. Roberts, 448 U.S. at 66, 100 S.Ct. at 2539.

We note that, in federal court, Pifer's videotaped testimony likely would have been admitted under Federal Rules of Evidence 804(b)(5), which allows the admission of

[a] statement not specifically covered by any of the foregoing exceptions but having equivalent circumstantial guarantees of trustworthiness, if the court determines that (A) the statement is offered as evidence of a material fact; (B) the statement is more probative on the point for which it is offered than any other evidence which the proponent can procure through reasonable efforts; and (C) the general purposes of these rules and the interests of justice will best be served by admission of the statement into evidence....

Pifer's testimony was offered as evidence of a material fact, and, because of the qualitative differences between his testimony and that of Green and Moran, it was more probative on the points for which offered than was the other testimony. As will be demonstrated, the testimony possessed particular guarantees of trustworthiness sufficient to meet the requirements of the Confrontation Clause. See Ohio v. Roberts, 448 U.S. at 66, 100 S.Ct. at 2539; United States v. McKinney, 707 F.2d 381, 384 n. 6 (9th Cir.1983); United States v. Nick, 604 F.2d 1199, 1203 (9th Cir.1979) ...