Forn v. Hornung
| Citation | 343 F.3d 990 |
| Decision Date | 08 September 2003 |
| Docket Number | No. 02-55287.,02-55287. |
| Parties | Albert Joseph FORN, Petitioner-Appellant, v. Thomas A. HORNUNG, Warden, Respondent-Appellee. |
| Court | United States Courts of Appeals. United States Court of Appeals (9th Circuit) |
Thomas T. Ono, Los Angeles, California, for the petitioner-appellant.
David F. Glassman, Deputy Attorney General for the State of California, Los Angeles, California, for the respondent-appellee.
Appeal from the United States District Court for the Central District of California; Nora M. Manella, District Judge, Presiding. D.C. No. CV-01-06648-NMM.
Before: Donald P. Lay,* Michael Daly Hawkins, and Richard C. Tallman, Circuit Judges.
Petitioner-Appellant Albert Joseph Forn ("Forn") seeks a writ of habeas corpus on his 1998 California solicitation of murder and conspiracy to commit murder conviction, arguing that his rights under the Confrontation Clause were violated by the admission of an extrajudicial statement given by his accomplice, James Hill. We must decide whether Hill's statement, admitted under the "against penal interest" hearsay exception, and its surrounding circumstances call the trustworthiness of Hill's statement into question such that Forn's inability to cross-examine Hill violated the Sixth Amendment. We conclude that while the admission of Hill's statement was improper, the error was harmless under contemporary Supreme Court authority.
Forn was convicted of conspiring with and soliciting James Hill (a/k/a "Corunell David Hill" and "James Willis") to murder Joe Crail, Forn's former business associate. The chain of events that led the authorities to Forn began with Hill's arrest for attempted extortion outside Crail's office on November 13, 1996. While Hill was under arrest, police detectives conducted a videotaped interrogation, during which Hill made a statement incriminating both himself and Forn in a scheme to murder Crail. Hill stated that he had been offered $50,000, with $10,000 paid up front, plus additional compensation to kill Crail by an unidentified "rich" lawyer. Hill claimed he had been offered a legal defense if he got caught, and that he had been promised his family would be taken care of if he went to prison. He said that the hit was to take place before Thanksgiving because of "some legal situation," and suggested that someone else might be hired if he did not succeed. Hill told police that the lawyer wanted Crail to sell stock, but then "changed his mind" and said "`[i]n so many words' that `[h]e's got to go.'" Hill also claimed the lawyer had instructed him to make it look like a robbery. Hill denied ever "doing a hit" before, and stated that he "did not particularly want to go through with killing [Crail]" and that he did not "want to see the man get hurt period."
During the interview, Hill placed a phone call to Forn, during which Hill identified himself as "Corunell" and indicated that the intended victim (Crail) was "kind of scared." During this conversation, Forn said he did not think it was a good idea to talk on the phone, "[a]lthough it would be illegal to tap a lawyer's phone," and the two agreed to meet the next day at a restaurant in Forn's neighborhood.
The California Court of Appeal stated that "from the first moments of the taped interview, [Hill] expressed the belief that the detectives were `going to need [him]' to `get the man up higher,'" and that Hill "suggested that if he cooperated and the detectives got their man, he be set free." People v. Forn, No. B126864 at 5 (Cal. Ct.App. June 6, 2000) (unpublished). The court also found that Detective Luther "said something about `figur[ing] out a way to facilitate that.'" When mention was made of Hill meeting Forn wearing a wire, Detective Luther said "This is a time that we're gonna do something for you if anything can be done." Id. When Hill expressed concern about opening himself up for a third strike conviction, Detective Luther said, When Hill objected to the fact that the detectives had not promised him anything, Detective Luther responded, "Well, why I'm not making any promises is because you haven't been able to establish your ability to do anything for us, so we have nothing to be able to discuss...." Id. at 6. However, the detectives also pointed out that Hill had not been booked.
Toward the end of the interview, Detective Luther stated to Hill that the District Attorney was "more than willing" to use Hill as a witness and "he cannot use you as a witness and prosecute you at the same time." Therefore, Detective Luther told Hill: "[I]f you help us get this guy, we're pretty much committed that we have to let you go because we have to use you as a witness." Id. at 7. Detective Hart then confirmed with his supervisor that Hill would not be booked.
Hill met with Forn twice on November 14, the day following Hill's statement, and the detectives wired Hill so that his meetings with Forn could be taped. Their first meeting occurred at a fast food restaurant. Hill told Forn he had met with Crail and told him his life was in danger. Hill said he could "take [Crail] out at 3:00," and said he wanted to "get this thing over with." Forn responded, "From what I understand, the contract is out there." Hill asked, "You want me to finish it then?," to which Forn replied, "When you produce results the contract is consummated." Forn also stated that he did not need any evidence to show that Hill "took him out" because if anything happened to "him" it would be in the news.
After some further discussion about payment, Forn said, "Actually, technically, and actually, I don't know what you're talking about," and warned Hill that bugging their conversation would be illegal. Hill promised to call "as soon as I pop him." Forn advised Hill not to get caught and said, "I think you want it to look like a robbery."
Following this meeting, the detectives arranged for Hill to have possession of Crail's wallet and a photograph of Crail appearing to have been shot. Hill then called Forn in Detective Hart's presence and told him "he had completed the job." Forn and Hill met that same day outside a restaurant which was being staked out by police. Hill showed Forn Crail's wallet and the "post-mortem" photograph, and Detective Larson testified he saw Forn smile when Hill showed him the photograph. Forn said something about selling or dumping the credit cards, and warned Hill that leaving town would look suspicious. Hill claimed to have taken Crail to an out-of-the-way place to shoot him, and said that it might take a day or two for the body to be found. Forn was arrested following this meeting.
On December 10 and 11, Detective Hart conducted another, this time untaped, interview with Hill, during which Hill described more fully the events leading up to his first meeting with Forn. Hill described how Lou Wyatt, who "was familiar with [Hill]'s criminal background,"1 asked Hill "if he wanted to make a lot of money" and arranged a meeting between Hill and Forn. Hill stated that at this meeting, Forn indicated that he wanted to use Hill for "some type of fraud or forgery," but that Hill brought up the idea of "eliminating" Crail instead. Hill claimed that Forn told Hill he "didn't give shit" because "the guy was a scumbag" and they then talked about different methods of payment. Hill stated that he met with Forn several times thereafter, and eventually received $5,000 from him.
At the beginning of Forn's trial, out of the presence of the jury, Hill was called to the stand, and asserted his Fifth Amendment right to refuse to testify. The trial court deemed Hill unavailable to testify for purposes of the California Evidence Code, which allows for the admission of hearsay statements made by unavailable declarants if the statement, when made, "so far subjected [the declarant] to the risk of civil or criminal liability, ... that a reasonable man in his position would not have made the statement unless he believed it to be true." Cal. Evid.Code § 1230. This ruling was made over the defense's objection that Hill's unavailability was caused by the prosecution's refusal to grant him immunity, although there appeared to be no intent to charge Hill with any crime.
The prosecution was then permitted to admit the transcripts and videotape of the November 13 interview for all purposes as a declaration against Hill's penal interest. They were permitted to admit the untaped December interview, through the testimony of Detective Hart, as evidence of Hill's prior state of mind. Cal. Evid.Code § 1251. However, this second statement could not be admitted for the truth of the matter asserted because Hill had already been promised leniency by that time.
Crail testified at Forn's trial, and described how he and Forn had been joint shareholders in some small corporations run by Crail. Crail testified that Forn had been removed from the boards of these corporations, and subsequently sued in an attempt to force dissolution of the corporations and sale of their assets. Instead, Forn was forced to sell his minority shares to Crail. There was also testimony at trial by Crail and his family that documented Hill's attempts to contact Crail and "warn" him about the hit (although Hill never told Crail that Forn was involved). Hill's arrest for attempted extortion occurred after such a meeting with Crail, who had arranged for police surveillance of the meeting.
Forn testified in his defense, and stated that his relationship with Hill was formed because Forn wanted to find someone to attempt to buy stock from Crail. Forn stated that Wyatt recommended Hill,...
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