Murillo v. Frank, 01-C-1285.

• Decision Date: 06 April 2004
• Docket Number: No. 01-C-1285.,01-C-1285.
• Parties: Edward A. MURILLO, Petitioner, v. Matthew FRANK<SMALL><SUP>1</SUP></SMALL>, Respondent.
• Court: U.S. District Court — Eastern District of Wisconsin

316 F.Supp.2d 744

Edward A. MURILLO, Petitioner, v. Matthew FRANK¹, Respondent.

No. 01-C-1285.

United States District Court, E.D. Wisconsin.

April 6, 2004.

COPYRIGHT MATERIAL OMITTED

Craig W. Albee, Glynn Fitzgerald & Albee, Milwaukee, WI, for Petitioner.

William L. Gansner, Wisconsin Department of Justice, Madison, WI, for Respondent.

DECISION AND ORDER

GRIESBACH, District Judge.

On January 29, 1999, Petitioner Edward A. Murillo was convicted in the Circuit Court for Racine County of first degree intentional homicide and related crimes arising out of the shooting death of Santiago Herrera. He is presently serving a life sentence in the custody of the Wisconsin Department of Corrections. Petitioner claims that his conviction was unconstitutionally obtained when the state was allowed to introduce in evidence against him his brother's uncross-examined statement implicating him in the crime. Having exhausted his state court remedies, petitioner now seeks federal habeas corpus under 28 U.S.C. § 2254. For the reasons that follow, I conclude that his petition must be granted.

I. FACTS

On June 23, 1998, Santiago Herrera was shot and killed while standing on the porch of his home. Moments earlier, Herrera had been seen on the porch with Zebulon Robinson, a minor at the time, who was attempting to purchase marijuana from Herrera. Robinson later told police that while he was standing on the porch with Herrera, he saw three individuals approach. Robinson identified the three as petitioner Edward Murillo, petitioner's brother Luis, and Mario Garcia, all members of the La Familia gang. Robinson told police that Edward Murillo pointed a gun at him and ordered him to get off the porch. Edward then made a statement to Herrera to the effect that "you Kings don't run nothing over here no more so get off our block." Robinson claimed Edward then shot Herrera, handed the gun to Robinson, and told him to get rid of it. Robinson hid the gun at a friend's house. (R. 61, Doc. 28 at 4-22.)

Six days later, police arrested Luis Murillo and, after reading him his Miranda rights, questioned him for more than three hours. Luis, who was himself a suspect, initially told police he was not in the area of the shooting, but was with his girlfriend watching television. Investigator William Warmington, who was conducting the interrogation, left the interview room, but returned a short time later and told Luis they had checked out his story and it did not hold up. Luis was then informed that he had been identified as a suspect through a Crime Stoppers tip. Luis became more nervous and told the police that he was near the shooting and saw those involved running away, but that he did not do anything. After a break, Luis became increasingly upset and, according to Warmington, was crying, pacing, praying and collapsing. He ultimately told the officer that he saw his brother Edward shoot Herrera and signed an affidavit to that effect. (R. 59, Doc. 26 at 36-0; R. 71, Doc. 32 at 41-42, 54-59.)

Petitioner was thereafter arrested and charged with first degree intentional homicide, intentionally giving a dangerous weapon to a child and possession of a firearm by a felon. Prior to trial, the state attempted to take Luis's deposition. Luis refused to testify, however, asserting his Fifth Amendment right against self-incrimination. Luis was granted immunity but still refused to testify and was held in contempt. (R. 58, Doc. 25.) Petitioner then filed a motion in limine to exclude Luis's statement in the event he persisted in his refusal to testify at trial on the grounds that it was hearsay and admitting the statement would violate his constitutional right to confront a witness against him. (R. 19, Doc. 3.) The trial court denied the motion, holding that the statement fell under both the penal interest and social interest exceptions to Wisconsin's hearsay rule. See Wis. Stat. § 908.045(4).² The trial court also held that admission of the statement would not violate the Confrontation Clause of the Sixth Amendment because both of the exceptions to the hearsay rule under which it found the statement admissible were "firmly rooted" within the meaning of Ohio v. Roberts, 448 U.S. 56, 66, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980). (R. 59, Doc. 26 at 53-56.)

At trial, as anticipated, Luis refused to testify and did not appear before the jury. The trial court, over the objection of petitioner's attorney, allowed Investigator Warmington to relate Luis's statement to the jury. The trial court also admitted the affidavit that Luis had signed at the conclusion of the interview. On the basis of this and other evidence introduced over the course of the trial, the jury returned verdicts of guilty on each of the charges.

Following the denial of his motion for post conviction relief, petitioner appealed. The Wisconsin Court of Appeals affirmed his conviction, holding that Luis's statement satisfied the social interest exception to Wisconsin's hearsay rule and its admission did not violate the Sixth Amendment's Confrontation Clause. State v. Murillo, 2001 WI App 11, 240 Wis.2d 666, 623 N.W.2d 187 (2000). Because the court concluded that Luis's statement qualified under the social interest exception, it found it unnecessary to address the question of whether Luis's statement was against his penal interest. And although the court of appeals rejected the trial court's holding that the social interest exception is a firmly rooted hearsay exception, it nevertheless found that the admission of the statement did not violate the Confrontation Clause because it bore "particularized guarantees of trustworthiness" sufficient to justify its use at trial. After the Wisconsin Supreme Court denied further review, Edward filed his petition for federal habeas corpus.

ANALYSIS

A. The AEDPA Standard

Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), habeas corpus relief for persons serving sentences imposed by state courts may not be granted on any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim:

(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the United States Supreme Court; or

(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.

28 U.S.C. § 2254(d).

Petitioner does not contend that the state court decision in his case was based on an unreasonable determination of the facts. Thus, § 2254(d)(2) is not at issue. Instead, his claim is that the decision of the Wisconsin Court of Appeals is contrary to, or involved an unreasonable application of, clearly established federal law under § 2254(d)(1). Under this standard, lower federal courts must look exclusively to Supreme Court precedent in reviewing petitioners' claims. Sweeney v. Parke, 113 F.3d 716, 718 (7th Cir.1997). Petitioners "must show that the Supreme Court has `clearly established' the propositions essential to their position." Mueller v. Sullivan, 141 F.3d 1232, 1234 (7th Cir.1998).

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." Williams v. Taylor, 529 U.S. 362, 405, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000). The state court decision involves an unreasonable application of such law if "the state court identifies the correct governing legal rule from [Supreme Court] 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." Id. at 407, 120 S.Ct. 1495.

B. Confrontation Clause Claim

Federal law, as determined by the Supreme Court, has long recognized the right of a person accused of a crime to confront the witnesses against him and to subject such witnesses to cross-examination, "the greatest legal engine ever invented for the discovery of truth." California v. Green, 399 U.S. 149, 158, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970). This fundamental right, specifically enumerated in the Sixth Amendment, applies to both federal and state prosecutions. Pointer v. Texas, 380 U.S. 400, 406, 85 S.Ct. 1065, 13 L.Ed.2d 923 (1965). But the Court has never held that the Confrontation Clause bars the use of all hearsay evidence at a criminal trial. Such an approach, the Court has noted, has been "long rejected as unintended and too extreme." Ohio v. Roberts, 448 U.S. at 63, 100 S.Ct. 2531. The issue over which the courts have struggled is in determining what statements can be admitted without running afoul of the Sixth Amendment.

There is no doubt that the decision of the Wisconsin Court of Appeals in petitioner's case is contrary to clearly established federal law as it presently exists. This is because the United States Supreme Court has recently held unequivocally that the Sixth Amendment Confrontation Clause bars the use against a defendant of statements made by a non-testifying witness in the course of an interview with the police. In Crawford v. Washington, ___ U.S. ___, 124 S.Ct. 1354, 158 L.Ed.2d 177 (2004), the Court reversed a defendant's conviction for assault and attempted murder on the ground that the introduction at his trial of a recorded statement by his wife made during a police interrogation violated his Sixth Amendment right to confront the witnesses against him. The Court held that the testimonial statement³ of a witness who is unavailable can only be admitted at trial if ...