Berrisford v. Wood

• Decision Date: 14 August 1987
• Docket Number: No. 86-5182,86-5182
• Citation: 826 F.2d 747
• Parties: 23 Fed. R. Evid. Serv. 775 Scott Timothy BERRISFORD, Appellant, v. Frank W. WOOD, Warden, Appellee.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 747

826 F.2d 747

23 Fed. R. Evid. Serv. 775

Scott Timothy BERRISFORD, Appellant, v. Frank W. WOOD, Warden, Appellee.

No. 86-5182.

United States Court of Appeals,

Eighth Circuit.

Submitted March 12, 1987.

Decided Aug. 14, 1987.

Cecilia Michel, Asst. Federal Public Defender of Minneapolis, Minn., for appellant.

Dan Klint, Asst. Anoka Co. Atty., Anoka, Minn., for appellee.

Before JOHN R. GIBSON, Circuit Judge, FLOYD R. GIBSON, Senior Circuit Judge, and BOWMAN, Circuit Judge.

BOWMAN, Circuit Judge.

Scott T. Berrisford was found guilty by a Minnesota state court jury on two counts of first degree murder, Minn.Stat. Sec. 609.185(1) & (3), and one count of kidnapping, Minn.Stat. Sec. 609.25. His conviction was affirmed on direct appeal. State v. Berrisford, 361 N.W.2d 846 (Minn.1985). He thereafter filed in the District Court a petition under 28 U.S.C. Sec. 2254 for a writ of habeas corpus, which was denied. On appeal Berrisford contends that (1) the state trial court's evidentiary rulings admitting various out-of-court statements made by an accomplice violated his Sixth Amendment right of confrontation and deprived him of a fair trial; (2) the trial court's instructions to the jury denied him due process of law by (i) effectively eliminating the element of his specific intent under several aiding and abetting theories; (ii) submitting alternative theories under which he could be found guilty that allowed the jurors to disagree as to his participation in the murder and thus conceivably permitted a non-unanimous jury verdict; and (iii) inadequately and inaccurately explaining direct and circumstantial evidence and defining "reasonable doubt"; and (3) there was insufficient evidence to convict him of first degree murder. For the reasons discussed below, we affirm. The factual background of this case is sufficiently set forth in the Minnesota Supreme Court's opinion. See 361 N.W.2d at 847-848. We therefore will not restate the facts in their entirety, but will discuss as necessary those facts relevant to the issues that Berrisford here raises.

I.

Berrisford's first contention is that the state trial court violated his Sixth Amendment right of confrontation and denied him a fair trial in violation of his Fifth Amendment right to due process, as applied to the States through the Fourteenth Amendment Due Process Clause, by admitting into evidence various out-of-court statements made after the murder by Lloyd Allen Hanley, an accomplice to the murder and kidnapping. Hanley's girlfriend, Jeanne Gosselin, testified about statements Hanley made to her on different occasions and about a conversation between Hanley and Berrisford that she overheard.

Questions concerning the admissibility of evidence are matters of state law and are reviewable in federal habeas corpus proceedings only when the alleged error infringes upon a specific federal constitutional right or is so grossly or conspicuously prejudicial that it fatally infected the trial and denied the defendant the fundamental fairness that is the essence of due process. Wood v. Lockhart, 809 F.2d 457, 459-460 (8th Cir.1987); Manning-El v. Wyrick, 738 F.2d 321, 322 (8th Cir.), cert. denied, 469 U.S. 919, 105 S.Ct. 298, 83 L.Ed.2d 233 (1984). Regarding the Sixth Amendment issue raised by Berrisford, the United States Supreme Court has stated that

when 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." Reliability can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception. In other cases, the evidence must be excluded, at least absent a showing of particularized guarantees of trustworthiness.

Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 2539, 65 L.Ed.2d 597 (1980). With this standard in mind, we turn to each of Berrisford's contentions regarding the trial court's evidentiary rulings.

A.

Gosselin testified that although Hanley "never loses his cool" he looked unnerved when he returned to his apartment approximately 90 minutes after the murder. According to Gosselin, Hanley simply stood motionless and stated, "He's dead." Hanley then attempted to pour himself a drink of whiskey, but grabbed a cup instead and threw it across the table. In response to a question from Gosselin, Hanley stated, "Somebody got carried away." When Gosselin asked who it was, Hanley replied, "Scott." ¹ Trial Transcript (Tr.) 868, 879-881.

Over defense counsel's hearsay objection, the trial court admitted these hearsay statements under the "excited utterance" exception, Minn.R.Evid. 803(2), and the "catch-all" exception, Minn.R.Evid. 804(b)(5). Berrisford contends that the statements lacked sufficient indicia of reliability and trustworthiness to be admitted. Berrisford points to the amount of time that elapsed after the murder before the statements were made (during which time, it is alleged, Hanley regained his reflective capacity and was calmly and consciously fabricating an alibi) and to the self-serving nature of the statements. Given this lack of trustworthiness, Hanley's unavailability for cross-examination, ² and the fact that these statements were used to corroborate the testimony of another accomplice (Edward Albrecht) implicating Berrisford in the murder, ³ Berrisford argues that the admission of the statements violated his Sixth Amendment right of confrontation and deprived him of a fair trial.

The Minnesota Supreme Court held that Hanley's statements were admissible under state law as an excited utterance. 361 N.W.2d at 850 (citing Minn.R.Evid. 803(2)). Thus, Gosselin's testimony regarding Hanley's statements "falls within a firmly rooted hearsay exception." Beyond that, however, Hanley's statements were supported by "particularized guarantees of trustworthiness" in the form of substantial corroboration. Cf. United States v. Ward, 552 F.2d 1080, 1082-1083 (5th Cir.), cert. denied, 434 U.S. 850, 98 S.Ct. 161, 54 L.Ed.2d 119 (1977). Another accomplice, Edward Albrecht, testified that Berrisford shot the victim, David Studler. Tr. 552-553. Tracy Cardinal, a friend of Berrisford, testified that Berrisford said he shot Studler. Tr. 347-349. In addition, Berrisford made an incriminating statement to a police investigator. Tr. 1576. A review of the trial transcript convinces us that Hanley's statements bore "adequate 'indicia of reliability' " and were supported by "particularized guarantees of trustworthiness" sufficient to overcome any concerns regarding Berrisford's Sixth Amendment right of confrontation or his right to a fair trial.

B.

Berrisford next challenges the admission of Gosselin's testimony regarding a conversation between Hanley and Berrisford in her apartment. Over defense counsel's objection, Gosselin testified that she overheard the following conversation:

HANLEY: You made a clean shot.

BERRISFORD: Well, I did it the way Ed showed me.

HANLEY: Well, there is going to be some more jobs coming up. How much you want for these jobs, you know, moneywise?

BERRISFORD: I would do it out of loyalty only. I know if I didn't do it I wouldn't be in the club.

HANLEY: He was probably dead already anyway.

BERRISFORD: No, he was making some noises. Did you hear him begging--please don't do it?

HANLEY: Yeah.

Tr. 895-900. The Minnesota Supreme Court held that these statements were properly admitted under Minn.R.Evid. 801(d)(2)(B) as an "adoptive admission." 361 N.W.2d at 850; cf. United States v. Handy, 668 F.2d 407, 408 (8th Cir.1982) (defendant's affirmative statement made in response to co-conspirator's statement admissible as an adoptive admission under Fed.R.Evid. 801(d)(2)(B)). For the same reasons stated in Part I.A., supra, we find no violation of Berrisford's Sixth Amendment right of confrontation or of his right to a fair trial resulting from the admission of these statements. The statements were admitted into evidence under a firmly rooted hearsay "exception" (though adoptive admissions technically are defined as not hearsay) and were corroborated by other evidence, thus providing "adequate 'indicia of reliability' " for their admission.

C.

Gosselin also testified that the day after the murder Hanley told her, "You are going to be Scott [sic] and my alibi. We were playing cribbage all night." Tr. 888. The trial court admitted this statement, over defense counsel's objection, under the co-conspirator provision of Minn.R.Evid. 801(d)(2)(E). The Minnesota Supreme Court upheld this ruling. 361 N.W.2d at 850. Berrisford challenges the admission of the statement as a violation of his right of confrontation, citing Krulewitch v. United States, 336 U.S. 440, 69 S.Ct. 716, 93 L.Ed. 790 (1949).

Berrisford's reliance on Krulewitch is misplaced. That case (which was on direct review to the Supreme Court via writ of certiorari) simply stands for the proposition that, as a matter of federal evidence law, ⁴ before a co-conspirator's out-of-court statement can be admitted against a defendant, it must be shown to have been made in furtherance of the conspiracy charged. Statements made in furtherance of an implied but uncharged conspiracy aimed at concealing the crime and avoiding detection and punishment are not admissible. Id. at 442-44, 69 S.Ct. at 717-18. Krulewitch did not involve a constitutional issue. Id. at 459, 69 S.Ct. at 725 (Burton, J., dissenting). Because only constitutional issues are cognizable in a Sec. 2254 habeas proceeding, Krulewitch provides no support for Berrisford's position.

Having reviewed the trial transcript, we find no violation of Berrisford's Sixth Amendment right of confrontation or of his right to a fair trial in the admission of Hanley's statement to Gosselin regarding an alibi. The statement falls within a firmly rooted hearsay exception inasmuch as it was against Hanley's penal interest. See State v....