Call v. Branker , 254 F. App'x 257 ( 2007 )

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 06-27
ERIC LAWRENCE CALL,
Petitioner - Appellant,
versus
GERALD J. BRANKER, Warden, Central Prison,
Raleigh, North Carolina,
Respondent - Appellee.
Appeal from the United States District Court for the Western
District of North Carolina, at Statesville. Lacy H. Thornburg,
District Judge. (5:04-cv-00167)
Argued: September 27, 2007 Decided: November 20, 2007
Before TRAXLER and KING, Circuit Judges, and Benson E. LEGG, Chief
United States District Judge for the District of Maryland, sitting
by designation.
Affirmed by unpublished per curiam opinion.
ARGUED: Marilyn Gerk Ozer, William F. W. Massengale, MASSENGALE &
OZER, Chapel Hill, North Carolina, for Appellant. Sandra Wallace-
Smith, Assistant Attorney General, NORTH CAROLINA DEPARTMENT OF
JUSTICE, Raleigh, North Carolina, for Appellee. ON BRIEF: Roy
Cooper, Attorney General, Raleigh, North Carolina, for Appellee.
Unpublished opinions are not binding precedent in this circuit.
PER CURIAM:
Eric Lawrence Call was convicted by a North Carolina jury of
the capital murder, kidnapping, and robbery of Macedonio Hernandez
Gervacio (“Macedonio”), and of assault with a deadly weapon with
intent to kill Gabriel Gervacio (“Gabriel”), in a failed attempt to
eliminate Gabriel as a potential witness to Macedonio’s murder.1
Call was sentenced to death for the murder. On appeal, the Supreme
Court of North Carolina affirmed the murder conviction but remanded
for resentencing on the capital conviction. See State v. Call, 508
S.E.2d 496 (N.C. 1998).2 Call was again sentenced to death. The
North Carolina Supreme Court affirmed the sentence, see State v.
Call, 545 S.E.2d 190 (N.C. 2001), and the United States Supreme
Court denied Call’s petition for writ of certiorari, see Call v.
North Carolina, 534 U.S. 1046 (2001). After unsuccessfully
challenging his conviction and sentence in state post-conviction
proceedings, Call filed a petition for writ of habeas corpus in
federal district court. See 28 U.S.C.A. § 2254 (West 2006). The
district court denied relief. We granted a certificate of
appealability, see 28 U.S.C.A. § 2253(c)(1) (West 2006), and now
affirm.
1
There is some confusion regarding the victims’ names, likely
stemming from cultural differences in the placement of surnames.
For this reason, we refer to the victims by their first names,
“Macedonio” and “Gabriel”.
2
Call’s convictions and sentences for the non-capital crimes
are not at issue in this appeal.
2
I.
On the evening of August 24, 1995, at approximately 9:30 p.m.,
Call went to the trailer of Macedonio and Gabriel and offered
Macedonio twenty-five dollars to help him move furniture.
Macedonio told Gabriel that he would “be right back” and left with
Call. Call, 545 S.E.2d at 195 (internal quotation marks omitted).
Call instead took Macedonio to a nearby cornfield where he robbed
him and then “beat [him] to death with a shovel handle and a tire
iron, tied his right foot up around his head, and tied his hands
behind his back.” Call, 508 S.E.2d at 504. At some point, Call
realized that Gabriel would be able to place him with the murder
victim that evening and decided to eliminate Gabriel as a witness.
At approximately 11:00 p.m., Call returned to the trailer and
offered Gabriel twenty dollars to help him move a refrigerator.
Gabriel accepted and left with Call in Call’s pickup truck. Call
then returned to the cornfield where he unsuccessfully attempted to
kill Gabriel as well:
[D]efendant lured Gabriel outside of the vehicle by
telling him the pickup truck was stuck. As Gabriel
pushed the bumper of the pickup, defendant picked up an
aluminum bat and, after pretending to use the bat to lift
the tire, struck Gabriel on the head. Gabriel recovered,
stood up, and ran to the edge of a nearby river.
Defendant ran after him briefly, then returned to the
pickup truck and departed the area. Gabriel then ran
into the cornfield and lay on the ground all night.
The next morning, Gabriel swam across the river and
sought assistance at area homes. Eventually, Gabriel
received a ride home. At approximately 7:00 p.m. on 25
August 1995, Gabriel, through an interpreter, told the
3
trailer park owner, David Shatley, what had happened the
previous night. Thereafter, law enforcement officers
were contacted, and Gabriel led a search team back to the
cornfield to search for [Macedonio]. When the search
party arrived at the cornfield, Gabriel excitedly told
the same interpreter that defendant had brought him to
that location and assaulted him. After walking six to
eight rows into the cornfield, law enforcement officers
found a baseball cap on the ground and noticed several
broken corn stalks. As they continued their search, the
officers noticed a plaid shirt near the edge of the
cornfield. After walking toward the shirt, the officers
discovered that the shirt was on the victim’s body. The
victim’s body was partially covered by corn stalks. The
officers noted that the victim had suffered severe head
injuries. The victim’s right foot was tied up to his
shoulder area with a yellow rope, and the victim’s hands
were tied behind his back with a white rope. Shatley
identified the victim’s body, and Gabriel identified the
baseball cap as the one the victim was wearing when he
left the trailer with defendant. The officers also
discovered a broken stick, similar to a shovel handle, at
the scene.
After the victim’s body was found, the authorities
immediately began to search for defendant. Defendant was
not found at his residence. However, based on
information obtained at defendant’s residence, a warrant
was issued for his arrest. Defendant was arrested on 27
August 1995 in a motel room in Monroe, North Carolina.
Defendant and his pickup truck were brought back to Ashe
County, where officers inventoried the contents of
defendant’s pickup truck. Among items inventoried,
officers found a bag of clothes and a steel rod that
appeared to have blood and hair embedded in it. In
addition, officers recovered a motel registration form in
the name of “Rick N. Finley.” A handwriting expert later
determined that the registration form was written by
defendant.
Call, 545 S.E.2d at 195.
Shortly after the murder, police interviewed Alan Varden, who
was a close friend of Call and his wife Jenny. Varden told the
police that Call had discussed robbing Macedonio with him on
4
several occasions and had attempted to recruit Varden to help.
Varden also informed the police that he was at the Call home on the
evening of the murder. According to Varden, Call came home after
kidnapping Macedonio, but before returning for Gabriel, and
eventually told Varden what he had done. Specifically, Call “told
Varden that he had hit the victim over the head, had broken a
shovel handle, and had hit the victim with a tire iron. Defendant
also described how he had tied the victim’s right leg and hands
behind the victim’s back.” Id. at 196. Call “told Varden he
needed to go back and check the victim’s pulse and that he also
needed to get Gabriel,” but Varden again refused to help. Id.
Later that evening, Call returned to his home and “told Varden that
he had hit Gabriel with [a] bat [belonging to Varden] but that
Gabriel had gotten away.” Id. Call packed his clothes to run and
he, Jenny and Varden went to Varden’s home, where Call shaved his
beard and mustache and left a note declaring that his wife had no
knowledge of “what might have taken place.” Call, 508 S.E.2d at
510 (internal quotation marks omitted). Call also returned the
baseball bat to Varden, which Varden wiped clean, and told Varden
and Jenny that he was going to Monroe or Charlotte. Varden found
Call’s note at his residence and gave it to the police.
During the guilt phase of Call’s trial, Gabriel testified
regarding the events of that evening, including the fact that he
last saw Macedonio leaving with Call to move furniture and that
5
Call later lured him to the cornfield under the same pretense,
where Call brutally attacked him with the baseball bat. Varden
also testified during the guilt phase, relating in detail the
conversations he had with Call about the plan to rob Macedonio and
his encounters with Call and Jenny on the evening of the murder.
Steve Cabe, an agent with the North Carolina State Bureau of
Investigation, testified about the investigation of the gruesome
crime scene and was also questioned and cross-examined about the
statements Varden made to the authorities during that
investigation. Agent Cabe’s statements were admitted to
corroborate Varden’s incriminating testimony.
At the conclusion of the guilt phase, Call was convicted by
the jury of first-degree murder on the basis of premeditation and
deliberation and under the felony murder rule. The jury also found
Call guilty of robbery with a dangerous weapon, first-degree
kidnapping, and assault with a deadly weapon with intent to kill
inflicting serious injury. At the conclusion of a separate
sentencing hearing, the jury recommended a sentence of death. Call
was appointed new counsel for his direct appeal. The North
Carolina Supreme Court affirmed Call’s convictions but vacated the
sentence of death because the state had been allowed to impeach
Call with evidence of his post-Miranda silence. The case was
remanded for resentencing only. See Call, 508 S.E.2d at 524.
6
At the resentencing hearing, held on May 17, 1999, Call was
represented by his previous trial counsel, Anthony Lynch and Donald
Willey. The state presented a number of witnesses, including Dr.
Thomas A. Sporn, a forensic pathologist who reviewed the autopsy
photographs and report prepared by Dr. Robert Thompson. Dr. Sporn
testified that Macedonio’s “body showed a pattern of blunt-force
injuries to the head and facial area that could have been caused by
a baseball bat, a shovel handle, or a tire iron.” Call, 545 S.E.2d
at 196. There was “splitting of the victim’s skin and fracturing
of the victim’s skull at the forehead and beneath the left eye, as
well as splitting and tearing of the skin and fracturing of the
skull above the victim’s ear.” Id. “Dr. Sporn’s opinion with
regard to the number of blows the victim received was based, in
part, on Dr. Thompson’s assessment that the victim had suffered at
least eleven blows to the head.” Id.
The state did not, however, seek to reintroduce live testimony
by Gabriel or Varden. Gabriel had returned to Mexico and the state
unsuccessfully attempted to return him to the United States on a
temporary visa. Over Call’s objection and following a fairly
extensive hearing, Gabriel was declared unavailable as a witness
and his recorded testimony from the guilt phase was read into
evidence. Varden’s guilt-phase testimony was not read into
evidence, nor was he called as a live witness. Rather, the state
presented Varden’s version of the events surrounding the murder
7
solely via the testimony of SBI Agent Cabe, who again recounted the
substance of what Varden had told him during interviews conducted
immediately after the murder. Call’s trial counsel did not object
to the presentation of Varden’s statements in this manner, nor was
the state asked to demonstrate that Varden was unavailable as a
witness. However, Call’s trial counsel did cross-examine Agent
Cabe regarding Varden’s statements, as he had done during the guilt
phase. Call did not seek to introduce Varden’s recorded testimony
from the guilt phase or to call Varden as a live witness.
At the conclusion of the resentencing hearing, the jury found
four aggravating circumstances: (1) that the murder was committed
while Call was engaged in the commission of a kidnapping; (2) that
the murder was committed for pecuniary gain; (3) that the murder
was especially heinous, atrocious or cruel; and (4) that the murder
was part of a course of conduct in which Call engaged that included
the commission by Call of other crimes of violence against another
person. The jury found only six of twenty-three submitted
mitigating circumstances, found that the mitigating circumstances
were insufficient to outweigh the aggravating circumstances, and
recommended a sentence of death, which the trial court imposed.
On direct appeal, Call was appointed appellate counsel, who
raised a number of issues but no claim that Agent Cabe’s testimony
regarding Varden’s statements violated Call’s rights under the
Confrontation Clause. The North Carolina Supreme Court found no
8
error in the resentencing and affirmed the sentence of death, see
id. at 210, and the United States Supreme Court denied certiorari,
see Call, 534 U.S. at 1046.
In 2002, Call was again appointed counsel, who initiated state
post-conviction proceedings by filing a motion for appropriate
relief (“MAR”) in the North Carolina Superior Court. Call alleged,
among other things, that his trial counsel were constitutionally
ineffective under the Sixth Amendment for failing to object on
Confrontation Clause grounds to Agent Cabe’s testimony. Call
alleged that his appellate counsel was also ineffective for failing
to raise, as plain error, a Confrontation Clause challenge to this
testimony.
On June 17, 2003, the state court denied relief. The court
found that trial counsel could not “be found ineffective based on
a futile objection.” J.A. 310. In addition, the court found that
“Agent Cabe’s testimony was a dry second hand account that
benefitted Call by minimizing the retelling of the acts
establishing Call’s guilt,” and that trial counsel’s cross-
examination of Agent Cabe had been “strong and effective.” J.A.
311. Thus, the court concluded that “[t]rial counsel performed
professionally and competently,” that “[a]ny error or errors that
counsel may have made did not prejudice Call,” and that there was
“no reasonable probability that, but for the error or errors, there
would have been a different result in the proceedings.” J.A. 319.
9
The court also rejected Call’s claim that appellate counsel was
ineffective, noting that “[a]ppellate counsel, an assistant
appellate defender specializing in criminal appellate cases, filed
an extensive, well researched brief, raising numerous valid
assignments of error” and could not be found ineffective based upon
an issue that was “without merit and that would not have been
successful on direct appeal.” J.A. 311. Finally, the court
concluded that there was “overwhelming evidence to support the
aggravating circumstances underlying Call’s sentence of death.”
J.A. 322. The North Carolina Supreme Court denied Call’s petition
for writ of certiorari. See State v. Call, 589 S.E.2d 130 (2003).
In 2004, Call filed a second MAR, asserting that Agent Cabe’s
testimony violated his rights under the Confrontation Clause as
interpreted in Crawford v. Washington, 541 U.S. 36 (2004). Prior
to Crawford, an unavailable witness’s statement could be introduced
if the statement bore “adequate indicia of reliability.” Ohio v.
Roberts, 448 U.S. 56, 66 (1980) (internal quotation marks omitted).
In Crawford, however, the Court held that the Confrontation Clause
bars the admission of testimonial statements of an unavailable
witness if the defendant has had no prior opportunity for cross-
examination. See Crawford, 541 U.S. at 68.
The state MAR court again denied relief, holding that
Crawford, issued after Call’s case became final, did not apply
10
retroactively.3 However, the court addressed the merits of the
claim, reiterating that “[t]he details of Alan Varden’s statement
were introduced as a ‘dry second hand account’ which effectively as
possible minimized the retelling of the acts establishing Call’s
guilt” and that “[t]rial counsel’s cross-examination of Agent Cabe
regarding Varden’s statement was effective and without the risk of
denials by Varden.” J.A. 341. The court also found it significant
that “Call had a prior opportunity to cross-examine Alan Varden”
regarding his statements but “made no attempt to call Varden as a
witness or to introduce his prior sworn testimony” at the
resentencing hearing, and that “[t]he jury [had already] rejected
Call’s attempt to blame Varden during the guilt phase of his
trial.” J.A. 341. Finally, the court concluded that “[t]he
aggravating circumstances were strongly supported by the details
provided by Gabriel Gonzalez, the medical examiner[,] and the
witnesses to the gruesome crime scene where Macedonio was found
beaten and ‘hog-tied’ with only nine dollars in his pocket.” J.A.
342. The North Carolina Supreme Court again denied certiorari
review. See State v. Call, 604 S.E.2d 916 (2004).
3
Call does not pursue the Confrontation Clause challenge under
Crawford in this proceeding, nor would Crawford have constituted
“clearly established” law at the time of the resentencing. The
United States Supreme Court has also held that Crawford announced
a “new rule” of criminal procedure, not applicable retroactively to
cases already final on direct review. See Whorton v. Bockting, 127
S. Ct. 1173, 1184 (2007).
11
Pursuant to 28 U.S.C.A. § 2254, Call filed this petition for
a writ of habeas corpus in the district court. The district court
denied the petition, see Call v. Polk, 454 F. Supp. 2d 475(W.D.N.C. 2006), and denied a certificate of appealability. We
granted a limited certificate of appealability to consider whether
Call’s rights to effective assistance of counsel under the Sixth
Amendment were violated by trial counsel’s failure to object to
Agent Cabe’s testimony at the resentencing hearing on Confrontation
Clause grounds and by appellate counsel’s failure to raise the
Confrontation Clause issue on direct appeal to the North Carolina
Supreme Court as plain error. We now affirm.
II.
A.
The Sixth Amendment requires that “[i]n all criminal
prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence,” U.S. Const. amend. VI, and
that such assistance be effective, see Strickland v. Washington,
466 U.S. 668, 686 (1984). In order to establish a claim for
ineffective assistance of counsel, a defendant is required to
demonstrate “that counsel’s performance was deficient” and that
“the deficient performance prejudiced the defense.” Id. at 687.
To demonstrate inadequate performance, the defendant “must show
that counsel’s representation fell below an objective standard of
12
reasonableness” measured by “prevailing professional norms.” Id.
at 688. To demonstrate prejudice, Call “must show that there is a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different.”
Id. at 694.
In death sentence challenges such as this, “the question is
whether there is a reasonable probability that, absent the errors,
the sentencer -- including an appellate court, to the extent it
independently reweighs the evidence -- would have concluded that
the balance of aggravating and mitigating circumstances did not
warrant death.” Id. at 695. “To avoid ‘the distorting effects of
hindsight,’ however, ‘a court must indulge a strong presumption
that counsel’s conduct falls within the wide range of reasonable
professional assistance.’” Williams v. Ozmint, 494 F.3d 478, 484
(4th Cir. 2007) (quoting Strickland, 466 U.S. at 689). “The
defendant (or petitioner) bears the burden of overcoming this
presumption.” Id.The defendant’s right to effective assistance of counsel also
extends to the direct appeal of a criminal conviction and requires
the same showing of deficient performance and prejudice. See
Evitts v. Lucey, 469 U.S. 387, 396 (1985); Bell V. Jarvis, 236 F.3d
149, 164 (4th Cir. 2000) (en banc). Appellate counsel is accorded
a “‘presumption that he decided which issues were most likely to
afford relief on appeal.’” Bell, 236 F.3d at 164 (quoting Pruett
13
v. Thompson, 996 F.2d 1560, 1568 (4th Cir. 1993)). “Counsel is not
obligated to assert all nonfrivolous issues on appeal, as ‘[t]here
can hardly be any question about the importance of having the
appellate advocate examine the record with a view to selecting the
most promising issues for review.’” Id. (quoting Jones v. Barnes,
463 U.S. 745, 752 (1983)). “Winnowing out weaker arguments on
appeal and focusing on’ those more likely to prevail, far from
being evidence of incompetence, is the hallmark of effective
appellate advocacy,” and “counsel’s failure to raise a weak
constitutional claim may constitute an acceptable strategic
decision designed to avoid diverting the appellate court’s
attention from what [counsel] felt were stronger claims.” Id.(alteration, citations, and internal quotation marks omitted). In
sum, while “it is still possible to bring a Strickland claim based
on counsel’s failure to raise a particular claim on direct appeal,
. . . it will be difficult to demonstrate that counsel was
incompetent.” Id. (internal quotation marks and alteration
omitted). “Generally, only when ignored issues are clearly
stronger than those presented, will the presumption of effective
assistance of counsel be overcome.” Id. (internal quotation marks
omitted).
B.
Because the state court decided Call’s Sixth Amendment
ineffectiveness claims on the merits, we are constrained to review
14
them in light of the limits on federal habeas review of a state
conviction imposed by 28 U.S.C.A. § 2254(d). When a habeas
petitioner’s constitutional claim has been “adjudicated on the
merits in State court proceedings,” we may not grant relief unless
the state court’s adjudication “resulted in a decision that was
contrary to, or 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.A. § 2254(d).
A state court’s decision is contrary to clearly established
federal law under § 2254(d) where it “applies a rule that
contradicts the governing law set forth” by the United States
Supreme Court or “confronts a set of facts that are materially
indistinguishable from a decision of [the Supreme] Court and
nevertheless arrives at a result different from [that] precedent.”
Williams v. Taylor, 529 U.S. 362, 405-06 (2000). A state court’s
decision involves an unreasonable application of clearly
established federal law “if the state court identifies the correct
governing legal rule from [the Supreme] Court’s cases but
unreasonably applies it to the facts of the particular state
prisoner’s case.” Id. at 407. Factual determinations made by the
state court “shall be presumed to be correct,” and “[t]he applicant
shall have the burden of rebutting the presumption of correctness
15
by clear and convincing evidence.” 28 U.S.C.A. § 2254(e)(1) (West
Supp. 2006).
III.
The applicability of the Confrontation Clause in capital
sentencing proceedings has not been “clearly established” by
Supreme Court precedents. See Maynard v. Dixon, 943 F.2d 407, 414
n.5 (4th Cir. 1991) (noting that the question of whether the
Confrontation Clause applies in sentencing proceedings is
undecided); cf. United States v. Higgs, 353 F.3d 281, 324 (4th Cir.
2003) (noting that “[i]t is far from clear that the Confrontation
Clause applies to a [federal] capital sentencing proceeding”).
However, the question before us is not whether the Confrontation
Clause applies to capital sentencing hearings as a matter of
federal law. Because North Carolina recognized the general
applicability of the Confrontation Clause in capital sentencing
proceedings at the time of Call’s resentencing, see State v.
Jaynes, 549 S.E.2d 179, 194-96 (N.C. 2001); State v. McLaughlin,
462 S.E.2d 1, 19 (N.C. 1995), the question before the state MAR
court was whether Call’s counsel were constitutionally ineffective
for failing to object to Agent Cabe’s testimony on Confrontation
Clause grounds and failing to raise the constitutional issue on
direct appeal as plain error. The precise question before us,
however, is whether the state court’s rejection of Call’s
ineffectiveness claims is contrary to or an unreasonable
16
application of clearly established Supreme Court precedents
governing such Sixth Amendment claims. For the reasons that
follow, we conclude that it was not.
A.
We begin with Call’s claim that his trial counsel was
ineffective for failing to object to Agent Cabe’s testimony as
violative of the Confrontation Clause and that the state court’s
rejection of this claim was an unreasonable application of
Strickland and its progeny.
The basis for the state court’s rejection of this claim is
two-fold. First, the state court concluded counsel were not
constitutionally deficient for failing to object because any
Confrontation Clause objection to Agent Cabe’s testimony would have
been a “futile” one. J.A. 310. The state argues on appeal that
this is because the Confrontation Clause, as applied by the North
Carolina courts, did not prohibit Agent Cabe from testifying about
Varden’s statements because Varden had testified during the guilt-
phase of Call’s trial and was subjected to cross-examination at
that time. Second, the state court concluded that counsel’s
failure to raise the issue was not constitutionally deficient
because the introduction of the substance of Varden’s testimony via
“a dry second hand account” of Agent Cabe “benefitted Call by
minimizing the retelling of the acts establishing Call’s guilt.”
J.A. 311. In other words, even if Agent Cabe’s testimony
17
technically violated the Confrontation Clause and would have been
excluded had an objection been made, trial counsel’s decision to
allow introduction of the substance of that evidence via the “dry
second hand account” of Agent Cabe instead of the compelling first-
hand testimony of Varden himself was neither constitutionally
deficient representation nor prejudicial to Call.4 Because we
cannot say that the North Carolina state court’s adjudication of
this claim was an unreasonable one, Call is not entitled to habeas
relief.
1.
Pursuant to the statute governing capital sentencing
proceedings in North Carolina, “there shall not be any requirement
to resubmit evidence presented during the guilt determination phase
of the case, unless a new jury is impaneled, but all such evidence
is competent for the jury’s consideration in passing on
punishment.” N.C. Gen. Stat. § 15A-2000(a)(3). Additionally,
“[e]vidence may be presented as to any matter that the court deems
relevant to sentence, and may include matters relating to any of
the aggravating or mitigating circumstances . . . . Any evidence
which the court deems to have probative value may be received.”
Id.
4
Because we deny relief on the merits of Call’s habeas claims,
it is unnecessary for us to address the state court’s additional
determination that the claims were procedurally barred.
18
In the context of a resentencing hearing, this means that “the
State [is] required to resubmit the evidence presented in the
original trial in order to have it considered [by the resentencing
jury], but such evidence [is] competent as a matter of law.”
McLaughlin, 462 S.E.2d at 18. The hearsay rules of evidence
governing admissibility and exceptions, see N.C.G.S. § 8C-1, Rule
804, including the requirement that the declarant be deemed
“unavailable” as that term is defined therein, are not controlling.
See McLaughlin, 462 S.E.2d at 18. “Instead, N.C.G.S. § 15A-
2000(a)(3) expressly provides that evidence presented during the
guilt determination phase of a capital case is competent and
admissible as a matter of law during a capital sentencing
proceeding in the same case.” Id. at 18-19.
North Carolina also requires its courts to address, if raised,
the issue of “whether the admission of that recorded prior
testimony violates defendant’s confrontation rights under the
federal and state constitutions.” Id. at 19; see also Jaynes, 549
S.E.2d at 195; see also State v. Holmes, 565 S.E.2d 154, 165 (N.C.
2002) (noting that “[w]hile the Rules of Evidence do not apply to
a capital sentencing proceeding [in North Carolina], the
constitutional right to confront witnesses does apply” (citations
omitted)).
At the time of Call’s resentencing, North Carolina applied the
“residual trustworthiness” test of Ohio v. Roberts. “The principal
19
purpose of [the] confrontation [right was] to secure to the
defendant the right to test the evidence of the witnesses against
him through cross-examination.” Holmes, 565 S.E.2d at 165
(internal quotation marks omitted). But, the “defendant’s mere
lack of an opportunity to cross-examine a witness d[id] not
necessarily mean . . . that the defendant’s confrontation rights
were violated.” Id. If the court was “confident – as in the
context of hearsay falling within a firmly rooted exception – that
‘the declarant’s truthfulness is so clear from the surrounding
circumstances that the test of cross-examination would be of
marginal utility,’ the Sixth Amendment’s residual ‘trustworthiness’
test allow[ed] the admission of the declarant’s statements.” Id.
(quoting Lilly v. Virginia, 527 U.S. 116, 136 (1999); see also
Ohio, 448 U.S. at 66. The admission of testimony failing to meet
the residual trustworthiness test was reviewed for harmlessness.
See Holmes, 565 S.E.2d at 165.
In this case, Varden testified during the guilt phase, and his
testimony was subjected to vigorous and effective cross-examination
by Call’s trial counsel. Agent Cabe was also allowed to discuss
Varden’s statements during the guilt phase as a prior consistent or
corroborating statement, and he too was effectively cross-examined.
And both the state and Call were free, under North Carolina rules,
to resubmit Varden’s guilt-phase testimony in the resentencing
proceeding if they had felt it necessary or helpful. Thus, unlike
20
situations in which the state seeks to introduce testimony or
statements of witnesses whom the defendant has never had an
opportunity to cross-examine, Call in fact had the opportunity to
cross-examine both witnesses during the guilt phase, had available
to him the recorded testimony (including his own cross-examination)
of these witnesses for reintroduction at any time, and cross-
examined Agent Cabe during the resentencing hearing.5 The state
contends that, because Call was afforded these opportunities, Agent
Cabe’s testimony relating Varden’s statements was evidence
“competent for the jury’s consideration in passing on punishment”
under the statute and, as applied by the North Carolina courts, not
violative of the Confrontation Clause.
Purely from a Confrontation Clause standpoint, it troubles us
that Varden’s recitation of the events surrounding the murder was
not resubmitted in the resentencing proceeding via a reading of his
5
In McLaughlin, the court made no mention of a requirement
that the state demonstrate unavailability of a declarant for a
resentencing proceeding where the declarant had testified in the
guilt phase of the same proceeding and defendant’s “motivation to
cross-examine [the declarant] then was the same as his motivation
at the new capital sentencing proceeding”. McLaughlin, 462 S.E.2d
at 19. And in Jaynes, the trial court allowed testimony of a
witness in the defendant’s first guilt/sentencing trial to be read
to the jury. The North Carolina Supreme Court noted that the trial
court had also found that the witness was unavailable to testify at
the defendant’s resentencing proceeding, a fact that was
uncontested, but also noted that “[s]uch evidence would normally be
presumed admissible at a later proceeding.” Jaynes, 549 S.E.2d at
195 (emphasis added). In State v. Nobles, 584 S.E.2d 765, 768
(N.C. 2003), in contrast, the court was concerned with the
admissibility of the transcribed testimony of an unavailable
witness from a prior criminal proceeding against the defendant.
21
prior testimony. Rather, Agent Cabe presented the substance of
Varden’s testimony by reading his handwritten notes of the
interviews of Varden. The substance was largely the same, but it
was nonetheless a different version of those statements. The
question before us, however, is not whether we believe that Agent
Cabe’s testimony would violate the Confrontation Clause in a
capital sentencing proceeding. Nor are we called upon to decide
how the North Carolina statute affects North Carolina’s view of the
applicability of the Confrontation Clause in this context. Rather,
we are constrained to answer a more narrow question: whether the
state court’s finding -- that trial counsel was not ineffective
because an objection under the Confrontation Clause would have been
futile in North Carolina -- was contrary to or an unreasonable
application of Supreme Court precedents governing the right to
constitutionally effective assistance of counsel. At a minimum, we
think it far from clear that the North Carolina trial court or the
North Carolina Supreme Court on appeal would have considered Agent
Cabe’s testimony to be a violation of the Confrontation Clause.
2.
Even if we were to assume that North Carolina would have
considered Agent Cabe’s testimony to be violative of the
Confrontation Clause, however, Call would still not be entitled to
habeas relief. The state court also found that trial counsel’s
failure to lodge an objection was not deficient performance, and
22
did not prejudice Call, because the introduction of the substance
of Varden’s testimony via the “a dry second hand account” of Agent
Cabe “benefitted Call by minimizing the retelling of the acts
establishing Call’s guilt.” J.A. 311. Having reviewed the
testimony of Varden and Agent Cabe in the state court proceedings,
we agree.
During the guilt phase of Call’s trial, Varden offered a
compelling and damaging first-hand account of Call’s plans to rob
Macedonio, including his consideration of possible weapons and
crime locations, as well as his attempts to enlist Varden’s help
with the crimes. Varden related in detail Call’s return to his
home on the evening of the murder, his confession to Varden that he
had struck Macedonio in the head, restrained, and robbed him, and
his attempt to enlist Varden’s help to kidnap and eliminate Gabriel
as a witness to the murder. At one point during his testimony,
Varden even left the stand and demonstrated for the jury Call’s
description of how he had restrained Macedonio and left him to die
in the cornfield, including raising his right foot off of the floor
to demonstrate how Call had “hog-tied” Macedonio to keep him from
running. In stark contrast to this live account of Varden’s
encounters with Call and his first-hand account of Call’s brutal
treatment of Macedonio and Gabriel, Agent Cabe related the general
substance of Varden’s testimony by reading from his notes in an
obviously dry, rote fashion, and often in sentence fragments.
23
Clearly, the state’s decision to present the substance of
Varden’s statements in this fashion did not afford Call’s counsel
the opportunity to repeat the live cross-examination of Varden that
it had conducted during the guilt phase. And it is perhaps true,
as is now argued by Call, that Agent Cabe’s position in law
enforcement might have provided some cloak of validity to Varden’s
story. However, we cannot overlook the fact that trial counsel had
already attempted and failed to paint Varden as an uncharged
accomplice and unreliable witness before a jury, and that trial
counsel was free at any time to resubmit their cross-examination of
Varden in the resentencing proceeding, albeit at the risk that
Varden’s direct testimony would be read into the record as well or
that the state might then decide to call Varden as a witness. By
allowing the substance of Varden’s prior testimony to come in via
a second-hand account of Agent Cabe and conducting a “strong and
effective” cross-examination of the latter, trial counsel was able
to bring out the points on cross-examination necessary to create
doubt in the validity of Varden’s statements without the problem of
Varden testifying and repeating live the testimony that was so
damning at the guilt phase. As the state MAR court pointed out,
“[t]rial counsel’s cross-examination of Agent Cabe regarding
Varden’s statement was effective” but “without the risk of denials
by Varden.” J.A. 341. And, like the state court, we find it
significant that Call’s trial counsel had this “prior opportunity
24
to cross-examine Alan Varden,” but “made no attempt to call Varden
as a witness or to introduce his prior sworn testimony.” J.A. 341.
We are also unpersuaded by Call’s reliance upon trial
counsel’s after-the-fact affidavits concerning their strategies, or
lack thereof, regarding Varden’s statements. Call’s lead attorney,
Mr. Lynch, filed an affidavit professing no strategic reason for
failing to object to Agent Cabe’s testimony. Lynch provided no
elaboration regarding his thought process in this regard, however,
nor did he offer an opinion regarding whether he felt that the
decision, in hindsight, was a poor or otherwise deficient one. In
contrast, Call’s second-chair counsel, Mr. Willey, filed an
affidavit in support of Call’s MAR that was substantially more
self-critical.6 According to Mr. Willey, counsel felt that the
state had made an inadequate showing that Gabriel was unavailable
as a witness, but “made a strategic decision not to ask for a
continuance because we believed that bringing [Gabriel] or the
father of the victim into the courtroom would not have helped our
client’s case.” J.A. 270. In contrast, Willey asserted that they
“believed that having Alan Varden in the courtroom would have
helped our case,” but “did not object . . . because of the long-
standing holding of the North Carolina Supreme Court that the North
Carolina Rules of Evidence do not apply to capital sentencing
6
Lynch was very ill when he executed his affidavit and passed
away several months later. Willey executed his affidavit shortly
thereafter.
25
hearings.” J.A. 270-71. Unlike Lynch, Willey leads the court to
believe that he at least was simply unaware that he could object to
Agent Cabe’s hearsay testimony under the Confrontation Clause or
otherwise, and he implies that such failure should be deemed
constitutionally deficient performance on their part. Having
considered the respective affidavits, we find little utility in the
representations of either counsel.
First, it is well-settled that the test of Strickland
performance is an objective one; Call was required to demonstrate
that his “counsel’s representation fell below an objective standard
of reasonableness” measured by “prevailing professional norms.”
Strickland, 466 U.S. at 688 (emphasis added).
In all such cases,
[j]udicial scrutiny of counsel’s performance must be
highly deferential. It is all too tempting for a
defendant to second-guess counsel’s assistance after
conviction or adverse sentence, and it is all too easy
for a court, examining counsel’s defense after it has
proved unsuccessful, to conclude that a particular act or
omission of counsel was unreasonable. A fair assessment
of attorney performance requires that every effort be
made to eliminate the distorting effects of hindsight, to
reconstruct the circumstances of counsel’s challenged
conduct, and to evaluate the conduct from counsel’s
perspective at the time.
Id. at 689 (citation omitted). We can discern no good reason to
apply a different standard to self-scrutiny by defense counsel of
their own assistance. Hindsight within the clarity of defeat
fosters such second-guessing and self-criticism, particularly on
the part of competent professionals who take seriously their
26
obligation to zealously represent clients charged with capital
crimes. The objective test for constitutionally ineffective
assistance of counsel under the Sixth Amendment accounts for this
understandable tendency and keeps our focus not on what could have
been done differently, but on whether what was done was
constitutionally effective representation. For the reasons set
forth above, the state court’s determination that the performance
of Call’s trial counsel was constitutionally effective is
objectively reasonable.
Second, we cannot overlook the fact that trial counsel,
despite Willey’s statements in his affidavit, appear to have been
aware that North Carolina applied Confrontation Clause protections
in capital sentencing proceedings at the time of Call’s
resentencing. In fact, trial counsel objected to the introduction
of Gabriel’s testimony, presented a lengthy argument regarding the
propriety of introducing the testimony under both the North
Carolina Rules of Evidence and the Confrontation Clause, and
engaged the trial court in a specific discussion of the McLaughlin
case and its evidentiary and Confrontation Clause issues. Thus,
the objective record indicates that counsel made a conscious
decision to object to the reading of the hearsay testimony of
Gabriel (who was in Mexico) but not to object to the hearsay
testimony of Agent Cabe and risk having Varden brought in to
testify in person. And, even if counsel had believed they had no
27
valid objection to Agent Cabe’s testimony, they nonetheless made
the decision not to pursue the presentation of Varden’s testimony
via the reading of his prior testimony (as was done with Gabriel)
or to present him live themselves. The fact that Call’s counsel
had available the testimony to refute any contradictory evidence,
did not do so, and professed no impediment to doing so, is strong
evidence that they were satisfied with the dry second-hand account
of Varden’s testimony and were pleased to have Varden and Gabriel,
arguably the two most damaging witnesses, both absent from the
resentencing proceeding.
3.
To conclude, the state court found that trial counsel were not
ineffective because any objection under the Confrontation Clause
would have been futile and, in any event, counsel’s failure to
object was neither deficient performance nor prejudicial to Call
under the circumstances. We cannot say that either determination
was an unreasonable one. It is not clear that North Carolina would
have considered Agent Cabe’s testimony, presented as it was in a
capital resentencing proceeding, to be a violation of the
Confrontation Clause. And, in any event, we do not think it
deficient performance for defense counsel to choose not to object
to materials or testimony that presents the substance of damaging
evidence in a more innocuous fashion. Here, Call has failed to
meet his burden of demonstrating that an objectively reasonable
28
attorney would have objected to Agent Cabe’s testimony and, while
not required to do so, the state has made a strong showing that an
objectively reasonable attorney would have followed the exact path
counsel did here.
B.
For largely the same reasons, the state court’s rejection of
Call’s ineffective assistance of appellate counsel claim was also
not an unreasonable application of Supreme Court precedents
governing such claims. The state court rejected this claim on the
merits, noting that Call’s appellate counsel “filed an extensive,
well researched brief, raising numerous valid assignments of error”
and could not be found ineffective based upon an issue that was
without merit and that would have been unsuccessful on appeal.
In addition, the state court held that Call failed to
demonstrate “that there is a reasonable probability that, but for
counsel’s unprofessional errors, the result of the proceeding would
have been different.” Id. at 694. As noted by the state court,
the aggravating circumstances in this case were strongly supported
by the details provided by Gabriel, Dr. Sporn, and the other
witnesses to the gruesome crime scene. And, because Call’s counsel
chose not to object to Agent Cabe’s testimony, there was simply no
need for the state to introduce the recorded testimony of Varden,
which all agree could have been admitted by the state court, or to
call him as a live witness. As a strategic matter, it might have
29
presented a stronger case for the state, but as a substantive
matter, the evidence had been presented and there was no need to
present cumulative evidence of Varden’s statements. Had Call’s
counsel objected to Agent Cabe’s testimony, and that objection been
sustained by the trial court, the state would have been presented
with two options: it could have called Varden as a live witness to
reiterate the testimony he gave during the guilt phase or it could
have asked to have Varden’s prior testimony read to the jury. The
substance of the evidence would have remained the same. And, even
if appellate counsel had raised a Confrontation Clause issue on
appeal, the appellate court would likely have found no plain error.
Accordingly, we also cannot say that the state court’s rejection of
Call’s ineffective assistance of appellate counsel claim was
contrary to or an unreasonable application of clearly established
Supreme Court precedents governing such claims.
IV.
For the foregoing reasons, we affirm the district court’s
denial of Call’s petition for writ of habeas corpus.
AFFIRMED
30