Denny v. Gudmanson

• Decision Date: 18 May 2001
• Docket Number: PETITIONER-APPELLANT,No. 98-4275,RESPONDENT-APPELLEE,98-4275
• Citation: 252 F.3d 896
• Parties: (7th Cir. 2001) JEFFREY C. DENNY,, v. DONALD GUDMANSON,
• Court: U.S. Court of Appeals — Seventh Circuit

Page 896

252 F.3d 896 (7th Cir. 2001)

JEFFREY C. DENNY, PETITIONER-APPELLANT, v. DONALD GUDMANSON, RESPONDENT-APPELLEE.

No. 98-4275

IN THE UNITED STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT

Argued March 30, 2001

Decided May 18, 2001

Appeal from the United States District Court for the Eastern District of Wisconsin. No. 97 C 405--Charles N. Clevert, Judge. [Copyrighted Material Omitted] Susan Bogart (argued), Chicago, IL, for Petitioner-Appellant.

James E. Doyle, Gregory M. Posner-Weber (argued), Office of the Atty. Gen., Wisconsin Dept. of Justice, Madison, WI, for Respondent-Appellee.

Before Flaum, Chief Judge, and Posner and Evans, Circuit Judges.

Flaum, Chief Judge.

After the Supreme Court handed down its decision in Cruz v. New York, 481 U.S. 186 (1987), Jeffrey Denny sought to have his 1982 murder conviction overturned. Jeffrey argued that, according to Cruz, the admission of his brother's inculpatory statements at their joint trial in 1982 constituted a violation of the Confrontation Clause of the Sixth Amendment. The Wisconsin trial court denied Jeffrey's motion, and the Court of Appeals of Wisconsin affirmed that decision. State v. Denny, 163 Wis. 2d 352 (Ct. App. 1991). When the Supreme Court of Wisconsin denied Jeffrey's appeal, State v. Denny, 474 N.W.2d 107 (Wis. 1991), he sought habeas relief in the District Court for the Eastern District of Wisconsin. While the district court concluded that there has been a violation of Cruz, it agreed with the state court of appeals that any error was harmless. Thus, the court denied Jeffrey's petition for habeas relief. We granted a certificate of appealability to resolve the issues of whether the admission of Jeffrey's brother's inculpatory statements at their joint trial violated Cruz, and, if so, whether that violation was harmless. For the reasons stated herein, we affirm the district court's denial of habeas relief.

I. BACKGROUND

On January 16, 1982, Christopher Mohr was found dead, the victim of fifty-seven stab wounds and multiple head traumas. Though there were no eyewitnesses to the murder, the police investigation ultimately centered on Jeffrey Denny and his brother Kent Denny. Subsequent to Mohr's slaying, both Jeffrey and his brother made numerous inculpatory statements, vaunting about the murder to family members, friends, and acquaintances. In due time, those statements caught up with the pair, as they were arrested and scheduled to be tried jointly for first degree murder.

On August 27, 1982, at a pretrial hearing, Jeffrey objected to the admission of statements made by Kent which implicated Jeffrey in the crime, and further moved to sever his trial from that of his brother. The trial court, relying on the plurality opinion of the Supreme Court in Parker v. Randolph, 442 U.S. 62 (1979) denied the motion, finding that the prosecution intended to present testimony of "interlocking" inculpatory statements by both co-defendants. At their joint trial, neither co-defendant testified, though numerous witnesses testified as to Kent and Jeffrey's confessions. The trial culminated on November 16, 1982, with a judgment of conviction being entered against Jeffrey on one count of first degree murder under Wis. Stat sec. 940.01.¹ On December 5, 1984, in an unpublished order, the Wisconsin Court of Appeals affirmed Jeffrey's conviction.

In 1987, the Supreme Court revisited the issue of interlocking confessions in the case of Cruz, 481 U.S. 186. Contrary to the plurality decision in Parker--which the Wisconsin courts had relied on in denying Jeffrey's motion--a majority of the Court in Cruz determined that, in a joint trial, the interlocking nature of confessions did not preclude a Confrontation Clause violation. Thereafter, Jeffrey filed a motion for a new trial under Wis. Stat. sec. 974.06, arguing that the admission of Kent Denny's confessions violated his rights under the Confrontation Clause of the Sixth Amendment as interpreted in the Supreme Court's decision of Cruz. A hearing was held on the matter, and on April 24, 1990, the trial court denied Jeffrey's motion. That decision was affirmed by the Wisconsin Court of Appeals on May 15, 1991. See Denny, 163 Wis.2d. at 352. The court noted in its decision that Cruz would require reversal only if Kent Denny's statements which incriminated Jeffrey were not directly admissible against Jeffrey at their joint trial. However, because the court concluded that the statements were directly admissible against Jeffrey--as falling within the "firmly-rooted" hearsay exception of statements against interest--the court found that the Confrontation Clause posed no bar to the admission of those declarations. See id. at 358. Additionally, the court stated that because of the overwhelming evidence of guilt, any error in admitting the statements of Kent Denny would be considered harmless. See id. at 359-60. Thereafter, the Wisconsin Supreme Court denied Jeffrey's appeal. State v. Denny, 474 N.W.2d at 107.

On April 18, 1997, Jeffrey filed a petition for a writ of habeas corpus with the United States District Court for the Eastern District of Wisconsin, challenging the admission of the inculpatory statements made by Kent Denny on the ground that the admission violated the Confrontation Clause. On December 2, 1998, the district court denied Jeffrey's habeas petition. In doing so, the district court first noted that admission of Kent Denny's statement through third parties did in fact violate Jeffrey's rights under the Confrontation Clause. Specifically, the court ruled that the out-of-court statements did not come within a firmly-rooted exception to the hearsay rule, and were therefore admitted in violation of Jeffrey's right of confrontation. However, because the court was convinced beyond a reasonable doubt that the jury would have convicted Jeffrey absent Kent Denny's statement, the court found the error to be harmless. This Court issued a Certificate of Appealability on March 29, 2000, on the following issues:

1. Whether the introduction of Denny's non-testifying co-defendant's confession through the testimony of third-party witnesses violated Cruz v. New York, 481 U.S. 186 (1987)?

2. If Cruz was violated, was the error harmless?

Because the district court found that there had been a Cruz violation, Jeffrey does not contest that ruling. Jeffrey does challenge, however, the district court's finding that any error in admitting Kent's statements constituted harmless error. Specifically, Jeffrey asserts that the district court improperly analyzed the harmlessness question under an inappropriate standard.

II. DISCUSSION

A. Standard of Review

Because the habeas petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. sec. 2254, the standard of review contained in the Act governs Jeffrey's claims. See Lindh v. Murphy, 521 U.S. 320, 322-23 (1997). AEDPA provides, in relevant part, that habeas relief may be granted only if the adjudication of the claim by the state court "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." 28 U.S.C. sec. 2254(d)(1). In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court expounded on this standard, asserting that a state court decision is "contrary to" Supreme Court precedent "if the state court applies a rule that contradicts the governing law set forth in [Supreme Court] cases," or "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [Supreme Court] precedent." Id. at 405; see also Anderson v. Cowan, 227 F.3d 893, 896 (7th Cir. 2000). As for the "unreasonable application" portion of the statute, the Court interpreted the phrase to encompass the situations where "the state court identifies the correct governing legal rule from [the Supreme Court's] cases but unreasonably applies it to the facts of the particular state prisoner's case," or "the state court either unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams, 529 U.S. at 407.

In an appeal from a ruling on a petition for habeas relief, we review the district court's findings of fact for clear error and its rulings on issues of law de novo. See Foster v. Schomig, 223 F.3d 626, 634 (7th Cir. 2000), cert. denied, Foster v. Neal, 121 S.Ct. 1407 (2001). When the case falls under sec. 2254(d)(1)'s "contrary to" clause, we review the state court decision de novo to determine the legal question of what is clearly established law as determined by the Supreme Court and whether the state court decision is "contrary to" that precedent. See Anderson, 227 F.3d at 896; see also Schaff v. Snyder, 190 F.3d 513, 522 (7th Cir. 1999). However, when the case fits within the "unreasonable application" provision of sec. 2254(d)(1), we defer to a reasonable state court decision. See Anderson, 227 F.3d at 896-97. State court factual findings that are reasonably based on the record are accorded a presumption of correctness. See 28 U.S.C. sec. 2254(e)(1); Kurzawa v. Jordan, 146 F.3d 435, 440 (7th Cir. 1998).

B. Confrontation Clause Violation

The Confrontation Clause of the Sixth Amendment guarantees the right of a criminal defendant "to be confronted with the witnesses against him." The Supreme Court has held that the guarantee, which is extended against the states by the Fourteenth Amendment, includes the right to cross-examine witnesses. See Pointer v. Texas, 380 U.S. 400, 404 (1965). Therefore, in Bruton v. United States, the Court found that where two or more defendants are tried jointly, the pretrial confession of one of them that implicates the other...