Gochicoa v. Johnson
| Decision Date | 29 December 2000 |
| Docket Number | No. 99-50596,PETITIONER-APPELLEE-CROSS-APPELLANT,RESPONDENT-APPELLANT-,CROSS-APPELLEE,99-50596 |
| Citation | 238 F.3d 278 |
| Parties | (5th Cir. 2000) PEDRO L. GOCHICOA,, v. GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION, |
| Court | U.S. Court of Appeals — Fifth Circuit |
Appeals from the United States District Court for the Western District of Texas.
Before Smith and Dennis, Circuit Judges, and Harmon, District Judge.*
Gary Johnson, on behalf of the State of Texas ("the state"), appeals the grant of a writ of habeas corpus under 28 U.S.C. § 2254, and the petitioner, Pedro Gochicoa ("Gochicoa") cross-appeals the district court's refusal to find prejudice from ineffective assistance of counsel. We affirm in part, reverse in part, and render judgment in favor of the state.
The district court originally granted habeas relief to Gochicoa based on violations of the Confrontation Clause via hearsay testimony and related argument. See Gochicoa v. Johnson ("Gochicoa I"), 972 F. Supp. 380 (W.D. Tex. 1996). Concluding that the admission of the hearsay evidence did not violate the Confrontation Clause, we reversed. See Gochicoa v. Johnson ("Gochicoa II"), 118 F.3d 440 (5th Cir. 1997). On remand, the district court again granted habeas relief, this time based on the constructive complete denial of counsel. See Gochicoa v. Johnson ("Gochicoa III"), 53 F. Supp. 2d 943 (W.D. Tex. 1999).
A.
While responding to a call complaining of a "suspicious person," Officer Victor Prieto of the Pecos, Texas, police department encountered Jorge Gochicoa ("Jorge"), Pedro Gochicoa's brother, sitting in a parked car near an apartment building.1 As Prieto spoke to Jorge, Pedro approached the car from an alley, greeted Prieto "nervously," and said to his brother "let's go." Prieto questioned the Gochicoas briefly and then allowed them to leave.
Immediately after the brothers left, Deputy Andy Gomez arrived and told Prieto that the sheriff's department had also received a call, this time from a confidential informant, reporting that a man named Manuel Salcido was in the area selling heroin to Gochicoa. Gomez and Prieto then proceeded to search the alley from which Gochicoa had emerged.
As they searched, a young man named Michael Carrasco approached the officers and told them he had been watching the alley from an apartment window approximately 100 to 150 feet away. Carrasco reported that when Gochicoa rounded the corner of the alley and saw Prieto, he quickly reached into his pocket and made a motion as if he were throwing something to the ground. Carrasco, however, did not actually see anything leave Gochicoa's hand. Carrasco led the officers in the direction of Gochicoa's gesture, where they found a small red balloon containing nineteen dosage units of heroin. The officers found no other objects or refuse on the ground in the area.
Police arrested Gochicoa two days later and charged him with felony possession of heroin. At trial, the state did not identify the confidential informant or call the informant to testify, but mentioned the telephone call from the informant several times during its case in chief. During his opening statement, the prosecutor made the following remark: "Deputy Gomez . . . pulls up and tells [Prieto] that he has gotten a tip from a confidential informant concerning the defendant, and they start searching the area where [Gochicoa] was coming from for contraband that has been left behind."
During the prosecutor's direct examination of Prieto, the following exchange took place:
MR. PAINTER [Gochicoa's attorney]: Your Honor, I object. That's hearsay.
MR. ZAVODA [prosecutor]: I'll withdraw the question, Your Honor.
THE COURT: Sustained.
Gochicoa's counsel did not ask that the answer be stricken or that the jury be instructed to disregard the testimony. Moreover, despite the ruling, the prosecutor elicited testimony from Prieto that indirectly apprised the jury of the substance of the informant's out-of-court statement:
Gochicoa's counsel failed to object to this continuing line of questioning.
On redirect examination of Prieto, the prosecutor again introduced the confidential informant's telephone message into evidence without objection:
When Gomez took the stand, the prosecutor again acknowledged the earlier ruling and admonished Gomez not to reveal the substance of the statement.
Again, Gochicoa's counsel did not object. At closing, the prosecutor cited the substance of the informant's tip as direct evidence against Gochicoa.
What do we know by direct evidence? . . . We know that [Gochicoa] was out at the project on August 15, 1991, at about five or 5:15 P.M. We know his brother Jorge was waiting for him to come back from where he was at. We know that when he saw Victor Prieto-- Officer Prieto--that Pedro got nervous. We heard that from two different witnesses, Officer Prieto and Michael Carrasco. We know that Deputy Gomez had information from a confidential informant that Manuel Salcido was in this area in his home selling heroin and that [Gochicoa] was buying it at this particular time.
Gochicoa's counsel did not object to this argument.
On appeal, Gochicoa's attorney filed an Anders brief2 and withdrew from the case. Gochicoa then filed an appeal pro se, and the Texas Court of Appeals affirmed his conviction in an unpublished opinion. Gochicoa filed a petition for writ of habeas corpus with the Texas Court of Criminal Appeals, which denied relief without written order. Gochicoa then filed the instant federal habeas petition.
Gochicoa asserts ineffective assistance of counsel and violation of his Sixth Amendment right of confrontation based on the hearsay evidence. The district court found that the confidential informant's statements were offered for the truth of the matter asserted, that they were hearsay under Texas law, that the hearsay violated Gochicoa's rights under the Confrontation Clause of the Sixth Amendment, and that the error had a substantial and injurious effect on the verdict under Brecht v. Abrahamson, 507 U.S. 619 (1993) (). See Gochicoa I, 972 F. Supp. at 392. The court therefore granted the writ, declining to reach Gochicoa's claims of ineffective assistance of counsel. See id.
On appeal, we determined that the references to the confidential informant's tip were hearsay under Texas law but that the wrongful admission did not violate the Confrontation Clause under Dutton v. Evans, 400 U.S. 74, 87 (1970). See Gochicoa II, 118 F.3d at 445-48.3 Although the hearsay did not fall within a firmly rooted exception to the hearsay rule or carry any particularized indicia of reliability, it was "neither crucial to the prosecution nor devastating to the defense in the context of the trial as a whole." Id. at 447.
We explained the Dutton "crucial" or "devastating" test as follows:
The determination of whether the evidence is "crucial" or "devastating," . . . recognizes that the erroneous admission of unreliable hearsay may nonetheless be harmless in light of other evidence at trial; by examining whether hearsay was "crucial" or "devastating," the court seeks to determine whether the impermissible hearsay evidence was sufficiently damaging to the defense to warrant reversal.
Id. We reasoned that the "crucial" and "devastating" prong of the Confrontation Clause test is "therefore somewhat redundant in light of the harmless error rule." Id. at 447 n.5.4
We concluded that the most important prosecution witness was not the hearsay declarant, but rather Carrasco, whom Gochicoa had a full and fair opportunity to cross-examine:
[T]he tip from the informant standing alone did not connect Gochicoa to the balloon of heroin found in the public alleyway; only Carrasco's testimony established an immediate, albeit circumstantial, link between Gochicoa and the drugs. Carrasco testified...
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