Federal Evidence Review

On habeas review of state murder and burglary conviction, in admitting the murder victim’s hearsay statements about her fear of the petitioner, holding that the “forfeiture by wrongdoing” exception, as recognized under the Confrontation Clause in Giles v. California, 554 U.S. _, 128 S.Ct. 2678, 2693 (2008), was a “new rule” which did not apply retroactively on collateral review, in Ponce v. Felker, 606 F.3d 596 (9th Cir. May 24, 2010) (No. 08-56218)

In 2008, the Supreme Court ruled in Giles v. California, 554 U.S. _, 128 S.Ct. 2678, 2693 (2008), following the landmark decision in Crawford v. Washington, 541 U. S. 36 (2004), that the forfeiture by wrongdoing exception requires “a showing that the defendant intended to prevent a witness from testifying.” See, e.g., Supreme Court Watch: Updating Giles v. California; Supreme Court Watch: Giles, the Confrontation Clause and Forfeiture by Wrongdoing. The Ninth Circuit recently considered whether the rule under Giles v. California applies retroactively on collateral review.

In the case, petitioner Ponce was convicted for committing burglary and murder. In his state trial, two witnesses testified about hearsay statements made by the victim, the former girlfriend of the petitioner who was found stabbed about 30 times, concerning her fear of him. The testimony included that “she was nailing boards over her balcony window to keep ‘Louie’ [the petitioner] out” and that the petitioner “had threatened, ‘I’m gonna kill you, bitch.’” The jury convicted the petitioner on the burglary and murder charges. The state appellate court affirmed the admission of the hearsay statements under the “forfeiture by wrongdoing” hearsay exception, and alternatively held that any error was harmless based on substantial evidence of guilt. The state supreme court denied the petition for review. On federal habeas review of the state convictions, the district court denied the petition “concluding that the state court’s decision to affirm Petitioner’s conviction was neither contrary to, nor an unreasonable application of, clearly established federal law” and alternatively that the statements were not testimonial. One week after the district court ruling, the Supreme Court decided Giles v. California, 554 U.S. _, 128 S.Ct. 2678 (2008). The petitioner appeal to the Ninth Circuit.

The Ninth Circuit noted that the appeal turned on whether the decision in Giles v. California applied retroactively on collateral review: “ Giles would have controlled Petitioner’s case had Giles been decided while his convictions were on direct appeal.” Ponce, 606 F.3d at 597.

The circuit applied the retro-activity analysis under the Teague doctrine. See Teague v. Lane, 489 U.S. 288 (1989). First, the circuit concluded that Giles case established a “new” rule, satisfying Teague’s first requirement for retro-activity. Teague, 489 U.S. at 301, 310 (1989) (a case establishes a new rule “if the result was not dictated by precedent existing at the time the defendant’s conviction became final”); See also Whorton v. Bockting, 549 U.S. 406, 416 (2007) (“[A]n old rule applies both on direct and collateral review, but a new rule is generally applicable only to cases that are still on direct review.”). Prior Supreme Court precedent “describe the exception in general terms and establish merely that a defendant’s deliberate wrongdoing may forfeit the right to confrontation” but did “not themselves impose an intent requirement.” Ponce, 606 F.3d at 602-03. Additionally, reasonable jurists did not agree on the rule as “[t]here was a seven-to-three split among lower courts after Davis and before Giles, with the predominant view being that the forfeiture exception did not require an intent to prevent testimony.” Ponce, 606 F.3d at 603.

Nonetheless, under the Teague doctrine, a new rule may be applied retroactively if one of two exceptions applies, the new rule either (1) “places certain kinds of primary, private individual conduct beyond the power of the criminal law-making authority to proscribe”; or (2) is “a watershed rule[ ] of criminal procedure implicating the fundamental fairness and accuracy of the criminal proceeding”. Teague, 489 U.S. at 311. The circuit concluded that the exceptions did not apply:

“Neither exception applies here. Giles promulgated a rule of criminal procedure, not a substantive rule. Furthermore, Giles did not announce a watershed rule. The Supreme Court determined in Whorton, 549 U.S. at 421, that Crawford did not announce a watershed rule. Crawford represented a dramatic shift in Confrontation Clause law, overturning the “indicia of reliability” test that had been in use for decades. Giles, by contrast, clarified a subsidiary aspect of the rule announced by Crawford. If Crawford was not a watershed rule, then Giles cannot have been one either. We hold that Giles does not apply retroactively to state court convictions that became final before the Supreme Court issued Giles.”

Ponce, 606 F.3d at 604.

While the Giles decision did not apply retroactively, the circuit turned to whether any error was committed in admitting the hearsay statements. The circuit concluded that the admission of the murder victim’s hearsay statements was not contrary to, or an unreasonable application of, clearly established federal law, requiring reversal under 28 U.S.C. § 2254(d). As the circuit noted, “Before Giles, no holding from the Supreme Court required state courts to restrict the forfeiture exception to those cases in which a defendant intended to prevent a witness from testifying.” Ponce, 606 F.3d at 606.

Finally, even assuming error in admitting the victim’s hearsay statements, based on overwhelming evidence of guilt, “it was not unreasonable for the state courts to determine that the additional testimony about [victim] Gooch’s fear of Petitioner and his threat did not have a ‘substantial and injurious effect or influence in determining the jury’s verdict’.” Ponce, 606 F.3d at 606 (quoting Brecht v. Abrahamson, 507 U.S. 619, 631 (1993) (internal quotation marks omitted) (establishing harmless error standard on collateral review)).