Whelchel v. State

• Decision Date: 29 November 2000
• Docket Number: No. 98-35132,No. 98-35052,98-35052,98-35132
• Citation: 232 F.3d 1197
• Parties: (9th Cir. 2000) EPHEN WHELCHEL, Petitioner-Appellee, v. STATE OF WASHINGTON, Respondent-Appellant. TANA WOOD, Plaintiff-Appellee Cross-Appellant, v. STEPHEN C. WHELCHEL, Defendant-Appellant Cross-Appellee
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1197

232 F.3d 1197 (9th Cir. 2000)

EPHEN WHELCHEL, Petitioner-Appellee, v. STATE OF WASHINGTON, Respondent-Appellant.

TANA WOOD, Plaintiff-Appellee Cross-Appellant, v. STEPHEN C. WHELCHEL, Defendant-Appellant Cross-Appellee.

No. 98-35052 No. 98-35132

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

Argued and Submitted September 11, 2000

Filed November 29, 2000

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] John J. Samson (argued), Thomas J. Young, Erin Marie Moore, Office of the Attorney General, Olympia, Washington, for the defendant-appellant/cross-appellee.

Nancy D. Tenney (argued), Federal Defenders of Eastern Washington and Idaho, Spokane, Washington, for the plaintiff-appellee/cross-appellant.

Appeals from the United States District Court for the Eastern District of Washington Robert H. Whaley, District Judge, Presiding. D.C. No. CV-95-00500-RHW D.C. No. CV-95-00500-RHW

Before: Mary M. Schroeder, Robert R. Beezer, and Michael Daly Hawkins, Circuit Judges. Opinion by Judge Hawkins

HAWKINS, Circuit Judge:

The State of Washington ("Washington") appeals the district court's grant of habeas corpus relief to Stephen Whelchel ("Whelchel") who was convicted in state court of first-degree murder. Whelchel claims that several constitutional errors made during his trial mandate relief: (1) the violation of his Confrontation Clause rights by the admission of tape-recorded statements made by a pair of unavailable co-defendants implicating him in the murder; (2) the violation of his Confrontation Clause rights by the admission of a video-taped deposition of a witness challenging Whelchel's alibi where the prosecution made no showing that the witness was legally unavailable to testify at trial; (3) the violation of his due process rights by the failure to admit certain evidence found at the crime scene sometime after the murder; and (4) cumulative error preventing his receiving a fair trial. The district court granted relief on grounds (1) and (4), but denied it as to the remaining grounds. Washington appeals the grant as to grounds (1) and (4); Whelchel cross-appeals the denial of the petition on the remaining grounds.

Because we agree that Whelchel's Confrontation Clause rights were violated by the admission of the tape-recorded statements of his co-defendants, but not otherwise, we affirm.

Background Facts & Procedural History

In the early morning of September 27, 1986, Margo McKee ("Margo"), a pregnant woman, was stabbed and beaten to death in Moses Lake, Washington. When Margo's body was found three weeks later, the police investigation soon focused on Margo's husband, Jerry McKee ("McKee"), and four of the couple's associates: Stephen Whelchel ("Whelchel"); Jef-frey Flota ("Flota"); Beth Massey ("Massey"), Whelchel's girlfriend; and Nancy Hughes ("Hughes"), Flota's girlfriend. All but Whelchel confessed to participating in the murder. In exchange for being prosecuted as juveniles, Massey and Hughes pleaded guilty and agreed to testify at the trials of McKee, Flota, and Whelchel. In January 1987, McKee and Flota were convicted of first-degree murder in a joint trial.

Whelchel's case proceeded to trial in May, 1987. A principal part of the state's case was three tape-recorded statements, two from McKee and one from Flota, each given to Grant County Sheriff's officers. Additionally, the state relied upon a videotaped deposition of George Flota, the father of Jeffrey Flota. The deposition was taken under oath, in front of the trial judge, in Whelchel's presence and with the opportunity for cross-examination by Whelchel's counsel. During the defense case, the trial judge denied Whelchel's request to introduce into evidence a bloodstained blanket found at the crime scene quite some time after the murder. After four days of jury deliberation, Whelchel was found guilty of first-degree murder on June 1, 1987. He was sentenced to 333 months confinement.

The Washington Court of Appeals affirmed Whelchel's conviction in an unpublished decision. The Court of Appeals held that the admission of the tape-recorded statements by McKee and Flota was not error because McKee and Flota were not legally available to testify at the trial and the statements bore a sufficient showing of trustworthiness. Whelchel then appealed to the Washington Supreme Court, which granted review solely on the issue of whether the admission of the tape-recorded statements by McKee and Flota violated Whelchel's rights under the Confrontation Clause of the Sixth Amendment. Although the Washington Supreme Court affirmed Whelchel's conviction, it held that the admission of the tape recordings was constitutional error because the statements did not fall under any firmly established hearsay exception nor did they bear the "adequate indicia of reliability needed to satisfy confrontation clause concerns. " State v. Whelchel, 801 P.2d 948, 951 (Wash. 1990) (internal quotation marks omitted). The Washington Supreme Court nonetheless held this error to be harmless "because of the overwhelming untainted evidence of the defendant's guilt presented at the trial." Id. Justice Utter, joined by Justice Smith, dissented, stating that "[i]t is reasonably possible, indeed fairly likely, that the jurors convicted only because the statements improperly admitted into evidence took away reasonable doubts which the contradictory statements in the rest of the evidence may have left in their minds." Id. at 960 (Utter, J., dissenting). Whelchel subsequently exhausted his state remedies by submitting a personal restraint petition to the Washington Court of Appeals and seeking review of its denial in the Washington Supreme Court. See Lord v. Wood, 184 F.3d 1083, 1084 (9th Cir. 1999), cert. denied, 120 S. Ct. 1262 (2000). The Washington Supreme Court denied review of the appellate court's dismissal of Whelchel's petition.

Whelchel then filed the present habeas corpus petition indistrict court, presenting eighteen grounds for relief. The state moved for summary judgment, claiming that Whelchel was procedurally barred from asserting many of his claims and that the remaining grounds lacked merit. Whelchel cross moved for summary judgment requesting that the writ be granted on the basis of five of the grounds. The district court granted and denied portions of the state's motion and Whelchel's cross-motion, and ultimately ordered the parties to submit additional briefing on the Confrontation Clause claims arising from: (1) the admission of the tape-recorded statements of McKee and Flota, (2) the videotaped deposition of George Flota, (3) the refusal to admit the bloodstained blanket, and (4) the cumulative error claim.

After receiving the additional briefing, the district court granted habeas relief on the first and last claims and denied relief on all other grounds. We have jurisdiction under 28 U.S.C. SS 1291, 2253.¹

Standard of Review

Whelchel filed his habeas petition on November 9, 1995, before the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub. L. No. 104-132, 110 Stat. 1217. Our substantive review of the petition is, therefore, governed by pre-AEDPA standards. See Jeffries v. Wood, 103 F.3d 827, 827 (9th Cir. 1996) (en banc order). The district court's decision to grant or deny a 28 U.S.C. S 2254 habeas petition is reviewed de novo, see McNab v. Kok, 170 F.3d 1246, 1247 (9th Cir. 1999) (per curiam), as is the district court's grant of summary judgment, see Robi v. Reed, 173 F.3d 736, 739 (9th Cir.), cert. denied, 120 S. Ct. 375 (1999). Alleged violations of the Confrontation Clause are reviewed de novo. See Swan v. Peterson, 6 F.3d 1373, 1379 (9th Cir. 1993).

Analysis

I. Admission of McKee and Flota Tape-recorded Statements

A. Background

Two tape-recordings of McKee were admitted into evidence. Both recordings were done with McKee's knowledge and consent after he had been given the Miranda warning and waived his Miranda rights. The first recording took place on October 16, 1986, when McKee went to the Moses Lake Police Department to file a missing persons report on his wife. After approximately forty minutes of questioning (not on tape), McKee admitted to being present when his wife was murdered. McKee then proceeded to answer questions about the night of his wife's murder and his role.

According to McKee, Whelchel told McKee that he wanted to kill Margo and Whelchel organized events leading up to the murder. McKee also stated that Whelchel struck Margo on the head with a wooden table leg and then stabbed her. McKee said that he ran away from the scene with Hughes after the first blow and stayed at the top of a hill for about ninety minutes. McKee returned to the scene after Massey came up the hill and told him that Whelchel and Flota were "taking care of it." McKee repeatedly denied any involvement in the actual killing, even when police used the ruse that they "knew" McKee struck Margo with a rock.

The next day, the police interrogated McKeeagain, recording the session. McKee again stated that Whelchel did the actual killing. This time, however, McKee stated that he saw Whelchel hit Margo at least ten times before he left to go up the hill. McKee also admitted more serious involvement. In response to the question, "Why was [Margo] killed?" McKee answered, "Cause I wanted to get [Margo] out of my life, instead of getting a divorce I wanted. Steve [Whelchel] had that done." McKee said that he never asked Whelchel to murder his wife, but told him "just don't involve me" when Whelchel said he would kill her.

The tape-recorded interrogation of Flota was conducted on October 16, 1986, following his arrest. Flota had knowledge of, and consented to, the recording after being given a Miranda warning and waiving his Miranda rights. Flota also stated that Whelchel was the person who wanted to murder Margo and that it was Whelchel who did the actual killing. Flota admitted to...