Arroyo v. Quarterman ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT March 15, 2007
Charles R. Fulbruge III
Clerk
No. 05-50574
Summary Calendar
RANDY ARROYO,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
(5:01-CV-976)
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Before SMITH, WIENER, and OWEN, Circuit Judges.
PER CURIAM:*
Petitioner-Appellant Randy Arroyo, Texas prisoner # 999261,
was convicted in 1998, along with Vincent Gutierrez, of the capital
murder of Jose Cobo and was sentenced to death. After his state
appeal and state post-conviction efforts were unsuccessful, he
sought relief in federal court via a 28 U.S.C. § 2254 petition.
The district court granted conditional relief on Arroyo’s Eighth
Amendment claims in light of Roper v. Simmons, 125 S. Ct. 1183
(2005), and Arroyo’s sentence was subsequently commuted to life in
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
prison. The district court denied relief on all other claims, but
granted a certificate of appealability on two related Confrontation
Clause claims. Arroyo appeals the district court’s decision as to
those claims only. Finding no error, we affirm.
Arroyo asserts that his Sixth Amendment right to confront
witnesses was violated when the trial court admitted the testimony
of Christopher Suaste and Sean Lowe about statements of Gutierrez
that implicated Arroyo in Cobo’s murder. Arroyo complains in
particular about Suaste’s testimony that he was told by Gutierrez
of being told by Arroyo to shoot Cobo while he was trying to
escape. Lowe similarly testified that Gutierrez had said there was
mention made of shooting Cobo because of his attempted escape,
although precisely who had made the statement was not known. The
district court concluded that, given the other evidence of guilt,
any constitutional error was harmless. We agree.
The admission of third party testimony about a non-testifying
co-defendant’s statement that implicates another defendant may
violate the Confrontation Clause, but this rule is subject to
exceptions. Lilly v. Virginia, 527 U.S. 116, 123 (1999); Bruton v.
United States, 391 U.S. 123, 17-28 (1968). Such error is generally
referred to as Bruton error and is subject to harmless error
review. United States v. Nutall, 180 F.3d 182, 188 (5th Cir.
1999). Under the harmless error standard, federal habeas relief
may not be granted for constitutional error that did not “have a
substantial and injurious effect or influence in determining the
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jury’s verdict.” Brecht v. Abramson, 507 U.S. 619, 623 (1993). We
and the Supreme Court have found Bruton error harmless when the
erroneously admitted statements are “merely cumulative of other
overwhelming and largely uncontroverted evidence.” See Brown v.
United States, 411 U.S. 223, 231-32 (1973); see also United States
v. Lage, 183 F.3d 374, 388 (5th Cir. 1999). We review the district
court’s harmless error determination de novo. See Jordan v.
Hargett, 34 F.3d 310, 315-16 (5th Cir. 1994).
Although Arroyo takes issue with the district court’s
formulation of the harmless error test and complains that the court
failed to give sufficient weight to the prosecution’s reliance on
the contested testimony, our de novo review persuades us that the
district court correctly determined that any error was harmless.
The evidence overwhelmingly showed that Arroyo planned the theft of
Cobo’s Mazda RX-7 to steal parts for his own car, cased Cobo’s
apartment complex before the theft, purchased gloves in advance to
avoid leaving fingerprints, directed Suaste to Cobo’s apartment
complex and entered the gate code, and stole the car with Cobo in
it. Further, both Arroyo and Gutierrez were armed.
The evidence also showed that Arroyo drove the car during the
commission of the theft, admitted his involvement to a police
officer afterwards, and led the officer along the route, showing
him where he and Gutierrez disposed of the guns and abandoned the
car. Witnesses saw the RX-7 being driven erratically, saw a person
inside struggling, and heard gunshots while the car was moving; and
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one witness saw Cobo’s body thrown from the car. The guns were
later found, and ballistics evidence matched the bullets in Cobo’s
body to one of the guns. Further, garments matching the
description of Gutierrez’s clothing were found and they were
stained with blood that was consistent with Cobo’s blood.
This evidence overwhelmingly satisfies the standard for
finding Arroyo criminally culpable for Cobo’s death under Texas
law. See TEX. PENAL CODE ANN. § 7.02(b) (Vernon 2003); see also Ruiz
v. State, 579 S.W.2d 206, 207 (Tex. Crim. App. 1979). We will not
say that the testimony by Suaste and Lowe, even if erroneously
admitted, had a substantial and injurious effect on the verdict, as
it was merely cumulative of other overwhelming and largely
uncontroverted evidence. Given our conclusion that any error was
harmless, we need not reach Arroyo’s contentions that the district
court erroneously failed to make a determination of Confrontation
Clause error and misapplied the analysis required by the
Antiterrorism and Effective Death Penalty Act.
The judgment of the district court appealed from is, in all
respects,
AFFIRMED.
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