Arbuckle v. Dorsey ( 1999 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 30 1999
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
JOHN M. ARBUCKLE,
Petitioner-Appellant,
v. No. 98-2262
(D.C. No. CIV-97-615-LH)
DONALD DORSEY, Warden, Western (D. N.M.)
N.M. Correctional Facility;
ATTORNEY GENERAL FOR THE
STATE OF NEW MEXICO,
Respondents-Appellees.
ORDER AND JUDGMENT *
Before ANDERSON and KELLY , Circuit Judges, and BROWN , ** Senior
District Judge.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
Honorable Wesley E. Brown, Senior District Judge, United States District
Court for the District of Kansas, sitting by designation.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Petitioner John Arbuckle appeals the district court’s order denying his
petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. He filed
his habeas petition after enactment of the Antiterrorism and Effective Death
Penalty Act (AEDPA). A federal magistrate judge recommended the habeas
petition be denied, and the recommendation was adopted by the district court.
We have granted petitioner’s request for issuance of a certificate of appealability
under 28 U.S.C. § 2253 and affirm the district court’s order denying habeas relief.
BACKGROUND
On April 1, 1994, petitioner and his girlfriend, Lorraine Brown, brought
their ten-week old daughter, Lori Ann, to the emergency room of a New Mexico
hospital. Doctors determined that Lori Ann had suffered 51 separate bone
fractures as well as numerous bruises and other injuries. The infant suffered from
a fracture of her neck bone, which was potentially life threatening, as well as
multiples fractures of her arms, legs and ribs. The medical evidence showed that
the fractures were at different stages of healing and the bruises were of different
hues, indicating Lori Ann’s injuries had happened at different times. The medical
evidence also showed that the injuries could not have happened the way the
parents said she was injured, nor could they be the result of an accident because
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of the nature and location of some of her fractures. Numerous doctors testified
that the child’s injuries were consistent with several episodes of being violently
shaken, indicative of child abuse.
The medical evidence showed that the infant’s fractures and injuries could
not have occurred prior to March 15, 1994, when Lori Ann had been released
from the hospital for treatment of a urinary tract infection, at which time x-rays
had shown her to have no bone fractures. The evidence also showed that Lori
Ann’s injuries were inflicted in the 7 to 10 days immediately prior to the day her
parents brought her to the emergency room. Petitioner, co-defendant Lorraine
Brown, and Lorraine Brown’s 16-year old sister had exclusive care and custody
of Lori Ann during this period.
Petitioner and Lorraine Brown were tried together and convicted by a
New Mexico jury of child abuse resulting in great bodily harm in violation of
N.M. Stat. Ann. § 30-6-1. Petitioner was represented at trial by Mr. Aragon.
Petitioner was sentenced to eighteen-years’ imprisonment, to be followed by two
years parole. A state public defender, Monica Munoz, was appointed to represent
petitioner on appeal. Petitioner raised numerous evidentiary claims of error. He
also raised a claim of ineffective assistance of trial counsel in his direct appeal
reply brief. The New Mexico Court of Appeals affirmed petitioner’s conviction,
striking his ineffective assistance of counsel claims as untimely. Petitioner’s
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petition for certiorari was denied by the New Mexico Supreme Court.
Represented by new counsel, petitioner then filed an application for state
post-conviction relief, arguing iter alia it was unconstitutional to join his trial
with Ms. Brown and claiming he received ineffective assistance of counsel. The
petition was denied, and petitioner’s petition for certiorari raising these same
issues was denied by the New Mexico Supreme Court.
On April 30, 1997, petitioner filed his § 2254 habeas petition, which was
denied by the district court. On appeal, petitioner claims he received
constitutionally ineffective assistance of counsel at trial when his counsel failed
to properly object to the joinder of his trial with that of Ms. Brown and when
his trial counsel failed to object on hearsay and Sixth Amendment Confrontation
Clause grounds to the admission of out-of-court statements made by his
co-defendant. Petitioner also claims he received ineffective assistance of counsel
on appeal when his counsel failed to raise his ineffective assistance of trial
counsel claims until his direct appeal reply brief.
DISCUSSION
Because petitioner filed his habeas petition after AEDPA’s April 24, 1996
effective date, AEDPA governs our review of the instant habeas petition. See
Rogers v. Gibson , 173 F.3d 1278, 1282 n.1 (10th Cir. 1999 ). Accordingly, we
may grant habeas relief only if the state court’s decision was “contrary to, or
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involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or . . . 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)(1),
(2). On appeal from the district court’s denial of a habeas petition, we review the
district court’s factual findings for clear error and its legal conclusions de novo.
See Rogers, 173 F.3d at 1282.
To prevail on a claim of ineffective assistance of trial or appellate counsel,
a habeas petitioner must affirmatively show (1) that counsel’s performance was
deficient or, in other words, “fell below an objective standard of reasonableness,”
and (2) that counsel’s errors prejudiced petitioner, that is to say “there is a
reasonable probability that, but for counsel’s unprofessional errors, the result of
the proceeding would have been different.” Strickland v. Washington , 466 U.S.
668, 688, 694 (1984). The proper focus is whether counsel’s errors “render[ed]
the result of the trial unreliable or the proceeding fundamentally unfair.”
Lockhart v. Fretwell , 506 U.S. 364, 372 (1993). If petitioner fails to establish
either the performance or prejudice prong of the Strickland test, we need not
examine his argument further. Strickland , 466 U.S. at 697. A claim of
ineffective assistance of counsel presents a mixed question of law and fact which
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we review de novo. See Cooks v. Ward , 165 F.3d 1283, 1292 (10th Cir. 1998),
petition for cert. filed , (U.S. May 14, 1999) (No. 98-9420).
Failure to Object Properly to Joinder
Under New Mexico law, joinder of defendants is proper when “each of the
defendants is charged with accountability for each offense” or the offenses “were
part of a common scheme or plan,” or “were so closely connected in respect to
time, place and occasion that it would be difficult to separate proof of one charge
from proof of others.” Rule 5-203(B)(1) and (3), NMRA (Michie 1999).
Ms. Brown’s counsel opposed the state’s pre-trial motion to join her trial with
petitioner’s, arguing that the co-defendants had inconsistent defenses and their
only possible defense was to point an accusatory finger of blame at the other for
Lori Ann’s injuries. Petitioner’s counsel joined in the motion, stating he joined
in the arguments for severance raised by Ms. Brown’s counsel. The trial court
denied these motions. 1
1
As noted by the New Mexico Court of Appeals in upholding the joinder, it
was not a viable defense for Ms. Brown to blame petitioner for the child’s injuries
because she would be liable for child abuse if she either caused or permitted her
child to be placed in a situation that might endanger her life or health. See
N.M. Stat. Ann. § 30-6-1(C) (emphasis added); State v. Leal , 723 P.2d 977, 980
(N.M. Ct. App. 1986). Thus, the New Mexico Court of Appeals held that “neither
[petitioner nor Ms. Brown] could defend simply by blaming the other for the
actual infliction of the injuries, because permitting the abuse was equally
criminal.” R. Doc. 7, Ex. L at 3.
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Petitioner claims his trial counsel’s joinder motion was constitutionally
inadequate because he failed to demonstrate to the trial court the prejudice that
petitioner would suffer if the trials were joined. Petitioner does not present any
additional arguments or evidence that his counsel could have presented to the
court in support of his opposition to the joinder motion. Petitioner has failed to
demonstrate that his trial counsel’s performance in opposing the joinder motion
fell below an objective standard of reasonableness, and, thus, that it was
constitutionally ineffective.
Petitioner also claims his trial counsel was ineffective because he failed to
request a severance during the trial. “[A] criminal defendant has no constitutional
right to severance unless there is a strong showing of prejudice caused by the
joint trial.” Cummings v. Evans , 161 F.3d 610, 619 (10th Cir. 1998), cert. denied ,
119 S. Ct. 1360 (1999); see also United States v. Lane , 474 U.S. 438, 446 n.8
(1986) (“misjoinder would rise to the level of a constitutional violation only if it
results in prejudice so great as to deny a defendant his Fifth Amendment right to
a fair trial.”). “Mutually antagonistic defenses are not prejudicial per se .” Zafiro
v. United States , 506 U.S. 534, 538 (1993). The mere fact that “defense theories
conflict” or that “one defendant is attempting to cast blame on the other,” is
insufficient to warrant a severance. See United States v. Dirden , 38 F.3d 1131,
1141 (10th Cir. 1994). Rather, to establish prejudice, “[t]he defenses truly must
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be mutually exclusive, such that the jury could not believe the core of one defense
without discounting entirely the core of the other.” Id.Petitioner claims he was prejudiced because Ms. Brown’s defense blamed
him for abusing both her and Lori Ann. We have reviewed the entire record and
are satisfied that Ms. Brown’s defense did not attempt to blame petitioner for the
child’s injuries, nor was her defense mutually exclusive of petitioner’s. None of
the record citations given by petitioner support his contention that Ms. Brown’s
defense tended to inculpate him. Ms. Brown’s defense was the same as
petitioner’s: that there was insufficient evidence to establish guilt beyond a
reasonable doubt. The jury could have believed the core of Ms. Brown’s defense
without discounting the core of petitioner’s defense. See id. Based on our
review of the record, we agree with the magistrate judge’s conclusion that
petitioner has not demonstrated any prejudice flowing from his trial counsel’s
failure to request a severance during the trial. Therefore, under the standard set
out in Strickland , 466 U.S. at 693, his claim for ineffective assistance of counsel
fails.
Petitioner next claims his trial counsel was ineffective for failing to object
on the basis of hearsay and Sixth Amendment Confrontation Clause grounds to
the admission of out-of-court statements by Lorraine Brown. He first complains
about testimony from a nurse who testified that, while Lori Ann was being treated
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for her urinary tract infection, Ms. Brown told her that she and petitioner were
short of cash, that they were under a lot of stress, that petitioner did not want to
take care of Lori Ann when Ms. Brown returned to work, and that petitioner
threatened to remove Lori Ann from the hospital before she was released by the
doctors. All of these four statements were recorded in Lori Ann’s hospital
medical records. Petitioner’s counsel objected to this testimony on the basis of
relevancy, but did not raise hearsay or Confrontation Clause objections.
A defendant is deprived of his Sixth Amendment right to confrontation
when a “powerfully incriminating” out-of-court statement of a nontestifying
co-defendant is admitted at their joint trial, even if the jury is instructed to
consider the confession only against the nontestifying co-defendant. See Bruton
v. United States, 391 U.S. 123, 126, 135-37 (1968); see also Gray v. Maryland,
118 S. Ct. 1151, 1154 (1998). However, statements that incriminate only
inferentially, that is, statements that do not refer directly to the defendant and
which become incriminating only when linked with evidence introduced later
at trial, are outside the scope of Bruton. See id. at 1157; Richardson v. Marsh,
481 U.S. 200, 208 (1987). The statements here are not facially incriminating
and lack the “powerfully incriminating” or “devastating” impact required for a
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Bruton violation. 2 Thus, petitioner has not shown his counsel was ineffective for
failing to raise Confrontation Clause objections to the admission of these
statements.
2
The magistrate judge relied upon another well-established exception to
Bruton: the admission of out-of-court hearsay statements of an unavailable
co-defendant that fall within one or more “firmly rooted” hearsay exceptions does
not violate the Confrontation Clause because the statements are presumed to bear
adequate indicia of reliability. See Bourjaily v. United States, 483 U.S. 171,
182-83 (1987); Ohio v. Roberts, 448 U.S. 56, 66 (1980). The district court
concluded that because the hearsay statements at issue were all contained within
hospital medical records, they fell within a firmly rooted exception to the hearsay
rule--the business records exception of Fed. R. Evid. 803(6). See United States
v. Johnson, 971 F.2d 562, 572-73 (10th Cir. 1992).
This conclusion was in error, however. Ms. Brown’s statements contained
in the hospital records are not covered by the business records exception because
she was under no duty or compulsion to provide the hospital with accurate
information, nor is there evidence that the hospital or the nurse had adequate
verification or other assurance of accuracy of the information provided by
Ms. Brown. See United States v. McIntyre, 997 F.2d 687, 699-700 (10th Cir.
1993). Business records are admissible despite the prohibition against hearsay
if they are “kept in the course of a regularly conducted business activity, and
if it was the regular practice of that business activity to make the [record].”
Fed. R. Evid. 803(6). “The essential component of the business records
exception is that each actor in the chain of information is under a business duty
or compulsion to provide accurate information.” McIntyre, 997 F.2d at 699
(citing 2 McCormick on Evidence, § 290 at 274 (John William Strong, ed., 4th
ed. 1992)). If, as here, the person supplying the information is not under a duty
of accuracy, that is, is not acting in the regular course of business activity, “‘an
essential link is broken; the assurance of accuracy does not extend to the
information itself, and the fact that it may be recorded with scrupulous accuracy
is of no avail.’” Id. (quoting Fed. R. Evid. 803(6), Advisory Committee Notes on
1972 Proposed Rules).
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Assuming that counsel’s failure to object to this evidence on hearsay
grounds was error, petitioner cannot show that this error was prejudicial. The
admission of Ms. Brown’s statements that they were low on cash and under stress
and that petitioner did not want to take care of Lori Ann all day did not render the
proceedings fundamentally unfair or unreliable. Nor was petitioner prejudiced by
the testimony that Ms. Brown told the hospital that he was threatening to remove
the baby from the hospital because essentially the same testimony was properly
admitted as direct evidence. The nurse testified that petitioner actually arrived
at the hospital while Ms. Brown was calling in about his threat, and the nurse and
a doctor testified about their first hand observations of petitioner’s actual attempt
to remove the child, including the need to call security to prevent him from
doing so.
Petitioner next claims his trial counsel was ineffective for failing to object
to certain testimony from Dr. McClintock, the physician who obtained a medical
history from Lori Ann’s parents when they brought her to the emergency room on
April 1, 1994. Dr. McClintock testified that Ms. Brown told him the baby’s arms
had popped while she was being given a bath that morning, and that the baby’s
feet had been hurt when Ms. Brown was carrying her in a “snugly” and leaned
over to pick something up while shopping. Petitioner’s counsel did raise a Bruton
Confrontation Clause objection to the admission of these out-of-court statements
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by Ms. Brown, which was overruled by the trial court. Petitioner contends his
counsel was ineffective for not also raising a hearsay objection. This argument is
without merit. Petitioner concedes that Ms. Brown’s explanations were plainly
inconsistent with the nature and severity of the baby’s injuries, and it is clear
from the record that the statements were introduced to show that inconsistency.
The statements were not introduced to establish the truth of the matter asserted,
and thus, were not hearsay. See Fed. R. Evid. 801(c). Thus, petitioner’s counsel
cannot be said to have been ineffective for failing to make a hearsay objection.
Finally, petitioner claims his counsel was ineffective for failing to object to
the testimony of an investigator who questioned petitioner and Ms. Brown several
hours after Lori Ann’s injuries were discovered. The investigator testified about
the explanations Ms. Brown gave for the baby’s injuries. Petitioner’s counsel
had earlier noted on the record a continuing objection to the admission of any
statements made by Ms. Brown against petitioner, and he objected to this
testimony as being cumulative and irrelevant, which was overruled. Petitioner
contends his counsel was ineffective for not also raising a hearsay objection to the
investigator’s testimony about Ms. Brown’s statements. Even a ssuming that
counsel’s failure to object to this evidence on hearsay grounds was error, an issue
we do not address, petitioner cannot show that this error was prejudicial.
Another investigator testified about the almost identical explanations petitioner
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gave about Lori Ann’s injuries. Thus, the testimony about Ms. Brown’s
explanations was merely cumulative of other evidence properly admitted against
petitioner. See Strickland , 466 U.S. at 697 (explaining that we need not
determine whether counsel’s performance was constitutionally deficient if we
determine that petitioner has failed to prove prejudice).
Cumulative Error
Petitioner asserts the accumulation of all his trial counsel’s errors entitles
him to habeas relief. However, “[c]umulative-error analysis applies where
there are two or more actual errors; it does not apply to the cumulative effect
of non-errors.” Moore v. Reynolds , 153 F.3d 1086, 1113 (10th Cir. 1998),
cert. denied, 119 S. Ct. 1266 (1999) ; see Newsted v. Gibson , 158 F.3d 1085, 1097
(10th Cir. 1998) (“A non-error and a non-prejudicial error do not cumulatively
amount to prejudicial error.”), cert. denied , 119 S. Ct. 1509 (1999). Because we
found no actual, prejudicial errors, we conclude there was no cumulative error.
Ineffective Assistance of Appellate Counsel
Finally, petitioner contends that his appellate counsel was ineffective for
failing to raise properly the issue of ineffective assistance of trial counsel on
direct appeal. Appellate counsel will be deemed ineffective if he or she fails to
assert a “dead-bang winner,” i.e., “an issue which was obvious from the trial
record . . . and one which would have resulted in a reversal on appeal.” United
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States v. Cook , 45 F.3d 388, 395 (10th Cir. 1995). Because we have determined
that trial counsel’s performance was not constitutionally deficient, petitioner’s
appellate counsel cannot be said to have been ineffective for failing to raise
ineffective assistance of counsel claims on direct appeal.
The judgment of the United States District Court for the District of
New Mexico is AFFIRMED.
Entered for the Court
Stephen H. Anderson
Circuit Judge
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