Hawkins v. Haggigan, 97-3326

• Decision Date: 04 August 1999
• Docket Number: No. 97-3326,97-3326
• Parties: (10th Cir. 1999) DANA DREW HAWKINS, Petitioner-Appellant, v. ROBERT D. HANNIGAN, and the ATTORNEY GENERAL OF THE STATE OF KANSAS, Respondents-Appellees
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1146

185 F.3d 1146 (10th Cir. 1999)

DANA DREW HAWKINS, Petitioner-Appellant, v. ROBERT D. HANNIGAN, and the ATTORNEY GENERAL OF THE STATE OF KANSAS Respondents-Appellees.

No. 97-3326

UNITED STATES COURT OF APPEALS TENTH CIRCUIT

August 4, 1999

Appeal from the United States District Court for the District of Kansas. D.C. No. 94-3355-DES

[Copyrighted Material Omitted] David J. Gottlieb, Director, The Paul E. Wilson Defender Project, University of Kansas School of Law, Lawrence, Kansas, for Plaintiff-Appellant.

Jared S. Maag, Assistant Attorney General, State of Kansas, Topeka, Kansas, for Respondents-Appellees.

Before SEYMOUR, Chief Judge,EBEL and KELLY, Circuit Judges.

EBEL, Circuit Judge.

Petitioner-Appellant Dana Drew Hawkins was convicted in 1984 of aggravated battery, rape, and aggravated sodomy by a jury in Kansas. He exhausted his state remedies, and now appeals from the district court's order denying federal habeas relief under 28 U.S.C. § 2254. Hawkins claims that he was denied effective assistance of counsel at trial and on appeal, and that he was denied his right to confront and cross-examine the victim at trial. We exercise jurisdiction under 28 U.S.C. §§ 1291 & 2253 and affirm.

FACTS

On March 26, 1983, during the early morning hours, a 92-year-old woman in Neodesha, Kansas, was beaten, orally sodomized, and raped in her home. The victim gave two audiotaped statements to police, but given her admittedly very poor hearing and eyesight, she was able to provide only a limited description of her attacker.

On March 27, as part of its investigation, police brought in approximately 100-150 people to be photographed, including petitioner-appellant Dana Hawkins. Hawkins was not a suspect at the time. However, two days later, on March 29, Hawkins was questioned briefly at the police station after a witness informed police that he had seen Hawkins near the victim's house the night of the crime.

Later that same evening, Hawkins' sister-in-law called police to say that Hawkins wished to make a further statement. The police brought Hawkins to the station, and at 10:30 p.m., Hawkins gave an audiotaped interview. During this interview, Hawkins claimed that an acquaintance, Robert Daugherty, had raped an elderly woman and had asked Hawkins to be his lookout. The following day, March 30, Hawkins returned to the police station to provide a three-page written statement reiterating this version of events.

At 7:00 a.m. on March 31, Hawkins voluntarily accompanied police chief Wes Sade from Neodesha to Chanute, Kansas, in order to take a psychological stress evaluation ("PSE") test. At 9:30 a.m., after conducting the PSE, police gave Hawkins Miranda warnings and questioned him again. During this audiotaped interrogation in Chanute, Hawkins became upset and confused, and began to implicate himself in the crime. Hawkins admitted to entering the victim's residence and hearing screams, seeing Daugherty on top of the victim, and personally hitting the victim because her screaming made him panic. He admitted to drinking alcohol and smoking marijuana that night, and frequently stated that he could not remember what had happened.

After the morning interview, Hawkins either requested an attorney or asked Chief Sade whether he should have one. Questioning stopped at that time, and Chief Sade transported Hawkins back to Neodesha, where he was arrested for assault and conspiracy to commit a felony and burglary. After being processed at the Neodesha police department, Hawkins was taken to the county attorney's office. There he renewed his request for an attorney, but none was provided.

At the county attorney's office, police read Hawkins his Miranda rights and interrogated him again in two videotaped sessions. During the first videotaped session, from 2:00 p.m. to 3:15 p.m., police played back for Hawkins the audiotaped statement he had made in Chanute earlier that day. Chief Sade then used the rest of the same audiotape to record the remainder of the 2:00 p.m. videotaped interview. Thus, the audiotape contained both the 9:30 a.m. interview in Chanute and part of the 2:00 p.m. videotaped interview in Neodesha. This entire audiotape, containing both sessions, was played for the jury. The transcript of this audiotape, which appears in the trial record, does not clearly reflect at what point the morning interview ceased and the afternoon recording commenced. However, in the later portion of the audiotape, clearly part of the 2:00 p.m. session, Hawkins confessed to hitting and orally sodomizing the victim, but then subsequently recanted the latter admission.

The first videotaped session ended at 3:15 p.m., and Hawkins was taken to the scene of the crime. Police then returned Hawkins to the county attorney's office and began the second videotaped session at 4:00 p.m. This second videotaped session was played for the jury, but apparently it was later damaged or destroyed, and is no longer part of the state court record.

The following day, April 1, Chief Sade presented the victim with a photo lineup, and the victim identified Hawkins as her attacker. Unlike the victim's other statements to police, her photo identification of Hawkins was not audiotaped.

In a pretrial motion, defense counsel moved to suppress Hawkins' videotaped statements¹ from March 31 in Neodesha. On October 25, 1983, the district court denied this motion, finding that even though Hawkins requested an attorney at least twice, the statements he made in Neodesha were given voluntarily.

On January 26, 1984, the opening day of Hawkins' trial, the parties submitted a stipulation permitting hearsay statements by the victim to be introduced at trial. The signed stipulation, which was read into the record, provided in part that

either party may resort to hearsay evidence pertaining to any description or identification given by the victim Hazel Burton. Such hearsay description or identification may be submitted to the jury by audio tape statements taken from the victim Hazel Burton, photos, transcription of tapes, and by eliciting hearsay testimony from Chief Wes Sade of the Neodesha Police Department.

This stipulation and agreement is entered into with full knowledge by all parties and with the understanding that the victim Hazel Burton is 92 years of age, in seriously poor health, and that her appearance in court could prove extremely hazardous to her life.

This stipulation and agreement is further requested by both parties in that each feels and recognizes a degree of value in those descriptions or identifications relevant to their individual side of the case.

(Emphasis added.)

At trial, the victim's taped statements to the police, describing the incident and her attacker, were played for the jury. These statements conveyed the limitations of the victim's eyesight, hearing, and memory, and defense counsel did not object to their admission. However, defense counsel did object when Chief Sade testified that he had shown the victim a photo lineup, that "she looked at all of the pictures very carefully, and on that date, 4-1-83, at 5:10 p.m., she picked out Mr. Hawkins, and said it sure looked like him, and specifically pointed to his picture in the photograph line up." After discussing at sidebar the scope of the parties' stipulation, the trial court overruled defense counsel's objections.

In addition to Hawkins' videotaped statements made March 31 in Neodesha and the victim's photo identification of Hawkins (as presented through Chief Sade's hearsay testimony), the trial court also admitted, over defense counsel's objection, the transcript of Hawkins' testimony at a preliminary hearing in a separate action against Robert Daugherty, the man originally identified by Hawkins as responsible for the crime. At that hearing Hawkins admitted to being in the woman's house, but testified that Daugherty had raped the victim while he stood watch. Hawkins testified pursuant to a plea agreement under which the state agreed to drop all but the rape charges against Hawkins in exchange for his testimony against Daugherty. However, the plea agreement was later withdrawn when the state determined that Hawkins' inculpation of Daugherty had been false and dropped its case against him.

All of Hawkins' audiotaped statements² were admitted at trial without objection, as was his three-page written statement to the police given on March 30. In addition, the government presented forensic evidence that head and pubic hairs found in the victim's bedding matched Hawkins' characteristics.³ The state's expert admitted on cross-examination that the hair evidence was not conclusive, given his estimate that 30-35 people in Neodesha could have the same pubic hair characteristics. On redirect, he refused to estimate the number of people who might share the combined head and hair characteristics.

Hawkins did not testify at trial. His defense rested on alibi testimony and the suggestion that Daugherty had committed the crime.

Following the three-day trial, the jury convicted Hawkins of aggravated battery, rape, and aggravated sodomy. On February 29, 1984, he was sentenced to 5-20 years on the aggravated battery conviction, and 15 years to life on the rape and aggravated sodomy convictions.

On April 5, 1985, the Kansas Supreme Court affirmed Hawkins' convictions on direct appeal. The state court denied post-conviction relief under Kan. Stat. Ann. § 60-1507, which the Kansas Court of Appeals affirmed on February 7, 1992. Hawkins filed his petition for writ of habeas corpus under 28 U.S.C. § 2254 in August 1994, claiming that he was denied his right to effective assistance of counsel and his right to confront and cross-examine the victim at trial. The district court denied relief on September 30, 1997. See Hawkins v. Hannigan, 979 F. Supp. 1397 (D. Kan. 1997). Hawkins now appeals.

DISCUSSION

Because Hawkins' § 2254 petition was pending at the time the habeas corpus statute was...