Guidry v. Dretke

• Decision Date: 14 January 2005
• Docket Number: No. 03-20991.,03-20991.
• Citation: 397 F.3d 306
• Parties: Howard Paul GUIDRY, Petitioner-Appellee, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

397 F.3d 306

Howard Paul GUIDRY, Petitioner-Appellee, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant.

No. 03-20991.

United States Court of Appeals, Fifth Circuit.

January 14, 2005.

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Kenneth A. Williams (argued), Gonzaga University School of Law, Spokane, WA, Robert M. Rosenberg, Wilton Manors, FL, for Petitioner-Appellee.

Tina J. Dettmer (argued), Austin, TX, for Respondent-Appellant.

Appeal from the United States District Court for the Southern District of Texas.

Before BARKSDALE, GARZA and DENNIS, Circuit Judges.

RHESA HAWKINS BARKSDALE, Circuit Judge:

Howard Paul Guidry was convicted in Texas state court of murder for remuneration in Harris County, Texas, and sentenced to death. He was granted conditional federal habeas relief based on the following two claims, involving evidence admitted for the State at trial: his confession violated his Fifth Amendment right against self-incrimination; and hearsay testimony against his interest violated his Sixth Amendment confrontation right. The Texas Court of Criminal Appeals had denied those claims on direct appeal. Guidry v. State, 9 S.W.3d 133 (Tex.Crim.App.1999), cert. denied, 531 U.S. 837, 121 S.Ct. 98, 148 L.Ed.2d 57 (2000) (Guidry I). In denying Guidry's Sixth Amendment claim, the Court of Criminal Appeals had held: although the hearsay testimony against Guidry's interest had been admitted erroneously, the error was harmless. Id. at 149-52.

The State contends the district court reversibly erred because: (1) under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), Pub.L. No. 104-132, 110 Stat. 1214 (1996), the district court abused its discretion by conducting an evidentiary hearing on the confession's constitutionality, despite the state trial court's having done so for the same issue, involving, according to the State, the same evidence; (2) the district court's non-acceptance of key state court findings of fact and, therefore, of its conclusions of law, did not accord with AEDPA's deferential scheme; and (3) the district court's findings of fact and conclusions of law regarding the confession and hearsay testimony (that their admission into evidence was erroneous and did not constitute harmless error) are erroneous.

The district court properly granted conditional habeas relief, pursuant to 28 U.S.C. § 2254(d) (state court decision was based on unreasonable application of clearly established federal law or on unreasonable determination of the facts). AFFIRMED.

I.

Farah Fratta was murdered on 9 November 1994; her husband, Robert Fratta, had hired Joseph Prystash to kill her. (Each received the death penalty.) During a custodial interrogation approximately four months after Farah Fratta's murder, Guidry confessed to shooting Farah Fratta and leaving the scene with Prystash. At Guidry's trial, his confession, as well as hearsay testimony against Guidry's interest by Prystash's girlfriend, Mary Gipp, established that, for $1,000, Guidry agreed to help Prystash kill Farah Fratta. The events surrounding this crucial evidence follow.

Guidry was arrested on 1 March 1995 for bank robbery; in his possession was the gun used for Farah Fratta's murder in November 1994. Following a tip from Gipp, detectives investigating Farah Fratta's murder turned their investigation toward Guidry, who was being held at the county jail on the robbery charge.

On 7 March 1995, Detectives Roberts and Hoffman transported Guidry from the jail to the Sheriff's office and questioned him about Farah Fratta's murder. As a result of this interrogation, Guidry gave a statement confessing to it. (He initially confessed to being only the driver, failed a polygraph test, and confessed to being the shooter.) This statement was followed by more detailed, videotaped confessions. (Guidry and the detectives offer sharply contrasting versions of the interrogation leading to the confession.)

Guidry was indicted for the murder of Farah Fratta "for remuneration or the promise of remuneration". Tex. Penal Code § 19.03(a)(3). After two pre-trial evidentiary hearings, the trial court denied Guidry's motion to suppress the confession. In March 1997, a jury found Guidry guilty of capital murder and, following the punishment phase, answered Texas' special issues in a manner requiring imposition of a death sentence. For the two fact-intensive claims on which conditional federal habeas relief was granted, an extremely detailed description of the proceedings in state and federal court is required.

A.

Central to Guidry's claim that his confession was obtained in violation of the Fifth Amendment are two events: Guidry's 7 March 1995 interrogation and confession; and an in-chambers conversation approximately a week later (15 March), involving, among others, Detective Roberts and Guidry's then-attorneys for the murder charge. These events bear on the two key questions for the Fifth Amendment claim: (1) whether Guidry asked to have his robbery-charge-attorney present during the 7 March interrogation about Farah Fratta's murder; and (2) whether the detectives told Guidry, untruthfully, that Guidry's robbery-charge-attorney had authorized Guidry's cooperation without his attorney's being present. The detectives deny Guidry requested an attorney and deny that they spoke with his robbery-charge-attorney; they claim Guidry confessed voluntarily.

The trial court held a pre-trial hearing on 28 August 1996 on Guidry's motion to suppress the confession; it was continued when it became apparent that Guidry's two attorneys for the murder charge would be required to testify about the 15 March 1995 in-chambers conversation. A second pre-trial hearing was held on 20 February 1997, involving the same witnesses, but adding testimony by Guidry and his two original/former attorneys for the murder charge. Following this hearing, the trial court orally denied the suppression motion; post-jury verdict, it entered written findings of fact and conclusions of law on 27 March 1997. Those findings and conclusions, as well as the testimony at the two pre-trial hearings about the interrogation and in-chambers conversation, follow.

1.

At the 1997 pre-trial hearing, Guidry testified about the 7 March 1995 interrogation. (As noted, he did not testify prior to the initial hearing's being continued in 1996.) According to Guidry: his robbery-charge-attorney, Duer, instructed him not to discuss anything with anyone (including officers and other prisoners); Detectives Roberts and Hoffman removed him from the county jail and transported him to their offices for interrogation; Detective Hoffman questioned him initially, left the room, and returned with Detective Roberts; Detectives Roberts and Hoffman then confronted Guidry with pictures of Farah Fratta's body; this frightened Guidry; he requested his attorney; and Detective Hoffman refused, while Detective Roberts remained silent.

Guidry testified further: the detectives left him alone for around one and a half hours; then, Detective Hoffman returned, saying he had a statement from Prystash implicating Guidry; the detective gave the statement to Guidry to read and claimed he had other evidence as well, but that they could work out a deal if Guidry cooperated. Guidry testified:

And this is all while I was reading the statement [by Prystash]. After I got through reading the statement, I asked [Detective Hoffman] again, I — I really didn't ask him, I kind of demanded that I speak to my lawyer that second time, because I was — I was really getting scared after the second time....

And when I told him that, he told me he was going to contact my attorney. At that point in time, he picked up the statement and he left ... the room.

(Emphasis added.) Guidry testified that Detective Hoffman

... asked me before he left ... the room — when I asked him for my attorney the second time, he asked me who my lawyer was. And I told him Mr. Layton Duer.

And he said: I'm going to contact your attorney and we're going to see what he says, right. And he stayed in the room maybe a minute getting paperwork together, and he left ... the room.

(Emphasis added.) According to Guidry, after some time passed, Detectives Roberts and Hoffman returned, saying they had contacted Guidry's attorney.

Detective H[o]ffman ... told me he had contacted my attorney.

He told me my attorney said it was all right for me to answer the question, and don't worry about it, you know, it was no problem.

Following this claimed exchange, and in claimed reliance on the alleged conveyed authorization from his attorney, Guidry gave his initial confession.

At the 1996 (first) pre-trial hearing, Detective Roberts offered conflicting testimony about knowledge of Guidry's representation.

Q. Were you aware of the fact that he, in fact, had an attorney representing him out of the bank robbery?

A. Somewhere, subsequent in the conversation, I was advised that he did have an attorney for the aggravated robbery.

(Emphasis added.) But later in the hearing, Detective Roberts retreated from his Guidry-had-counsel acknowledgment.

A. ... I don't know if he had an attorney or not. I was, I assumed he, I don't know, he didn't tell me. I don't know how, whether he had been in jail and had been appointed an attorney [for the bank robbery charge], I never did confirm if he had an attorney.

Q. So now you are going back to say you didn't even know he had an attorney?

A. Just because somebody's lips move doesn't make it a prayer book. I never did confirm whether there was an attorney or not.

Q. So when he told you he had an attorney, you assumed he was lying, right, so it wasn't a prayer book?

A. I'm not aware of how I was made aware of it, if he had an attorney or not.

(Emphasis added.)

When asked whether he had contacted Guidry's attorney at any time for any purpose, Detective Roberts answered: "I don't...