Luis Colon v. Robert Taskey , 414 F. App'x 735 ( 2010 )

NOT RECOMMENDED FOR FULL-TEXT PUBLICATION
File Name: 10a0687n.06
No. 09-3808 FILED
Nov 04, 2010
UNITED STATES COURT OF APPEALS LEONARD GREEN, Clerk
FOR THE SIXTH CIRCUIT
LUIS COLON, )
)
Petitioner-Appellee, )
)
)
v. ) On Appeal from the United States
) District Court for the Northern
ROBERT TASKEY and LAUREN MOORE, ) District of Ohio
)
Respondents-Appellants. )
)
Before: BOGGS, COLE, and CLAY, Circuit Judges
BOGGS, Circuit Judge. Luis Colon’s petition for a writ of habeas corpus sought relief from
an Ohio state court conviction on one count of domestic violence. Colon alleged that his
constitutional rights under the Confrontation Clause of the Sixth Amendment were violated when
the prosecution introduced at trial statements made by his victim, who did not testify, to a police
officer shortly after the incident. The Ohio Court of Appeals found no Confrontation Clause
violation. The federal district court, however, granted the writ, holding that the state court
unreasonably applied the Supreme Court’s Confrontation Clause jurisprudence. In so holding, the
district court erred in applying the deferential standard of review that governs collateral attacks on
state court decisions. Because the state court correctly identified and reasonably applied the legal
principles governing this case, we reverse the district court’s order granting Colon’s petition.
No. 09-3808
Colon v. Taskey and Moore
I
During the early morning hours of August 28, 2004, Evelyn Rivera and Adam Pabon
witnessed a man beating their neighbor on the street. While Rivera called 911, Pabon grabbed a
baseball bat and unsuccessfully tried to stop the assault. The man fled when the police arrived.
Police officer Brenda Korber approached the victim, who was sitting on a curb with a bruised and
bloodied face. When asked what had happened, the victim told Korber she had been walking home
with another man when the assailant attacked her, hitting her on the face and head. The victim
identified Colon as the assailant and provided his date of birth, adding that the two had dated for two
years and once lived together but had been separated for six months.
On September 17, 2004, Colon was charged in Cleveland Municipal Court with one count
of domestic violence. When the case proceeded to trial on January 17, 2006, the victim did not
testify, but Korber testified to the statements made by the victim at the scene of the crime. Defense
counsel raised a hearsay objection, but the trial court admitted the statements under the excited
utterance exception to the hearsay rule. The statement regarding Colon’s cohabitation with the
victim was required to prove the domestic violence offense, of which Colon was convicted.
Colon appealed the conviction, arguing that his “right to confrontation was violated when
the prosecution introduced testimonial hearsay statements from the alleged victim.” City of
Cleveland v. Colon, No. 87824, 2007 WL 179082, at *2 (Ohio Ct. App. Jan. 25, 2007). The state
appellate court affirmed the conviction on January 25, 2007. Id. It held that, because “the primary
purpose” of Korber’s questioning at the crime scene was to “assist the victim in an ongoing
emergency,” the victim’s statements were non-testimonial under Crawford v. Washington, 541 U.S.
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36 (2004), and Davis v. Washington, 547 U.S. 813 (2006). Id. at *5. The Ohio Supreme Court did
not accept Colon’s petition for review, Cleveland v. Colon, 868 N.E.2d 680 (Ohio 2007) (table), and
the United States Supreme Court denied his petition for a writ of certiorari. Colon v. City of
Cleveland, 552 U.S. 1148 (2008).
On January 23, 2008, Colon filed a petition for a writ of habeas corpus in federal district
court, again arguing that the Confrontation Clause barred the prosecution from introducing the
victim’s statements at trial. The district court conditionally granted Colon’s habeas petition, holding
that, because Colon fled the scene when the police arrived, the state court’s conclusion that an
“ongoing emergency” existed was unreasonable.
II
The Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No. 104-132, 110 Stat.
1214 (1996) (“AEDPA”), governs collateral attacks on state court decisions. Under AEDPA, federal
courts cannot grant a habeas petition for any claim that a state court adjudicated on the merits unless
the state court’s adjudication: “(1) 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 (2) resulted in a decision that was based upon an unreasonable determination
of the facts in light of the evidence presented in the state court proceeding.” 28 U.S.C. § 2254(d);
see also Miller v. Francis, 269 F.3d 609, 614 (6th Cir. 2001). In Williams v. Taylor, the Supreme
Court explained that a federal court may grant a petition under the “unreasonable application” clause
of § 2254(d)(1) “if the state court identifies the correct governing legal principle from the Court’s
decisions but unreasonably applies that principle to the facts of the prisoner’s case.” 529 U.S. 362,
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413 (2000). Even if a federal court determines that a state court incorrectly applied federal law, it
may not grant habeas relief unless it also holds that the state court’s application was unreasonable.
Simpson v. Jones, 238 F.3d 399, 405 (6th Cir. 2000).
III
Our analysis of when the Sixth Amendment bars the admission of statements made by a non-
testifying witness begins with Crawford v. Washington. Under Crawford, because the Sixth
Amendment gives the “accused” a right to confront “witnesses against him,” “testimonial”
statements of a witness who does not appear at trial may not be admitted unless the defendant had
a prior opportunity to cross-examine the witness. 541 U.S. at 53-54; United States v. Arnold, 486
F.3d 177, 187 (6th Cir. 2007) (en banc). In Crawford, the non-testifying witness’s statements were
made while she was in custody; she had been read her Miranda rights, and her answers were tape-
recorded. 541 U.S. at 38. Although Crawford did not precisely define the term “testimonial,” it
emphasized that “[s]tatements taken by police officers in the course of interrogations are . . .
testimonial under even a narrow standard.” Id. at 52.
But the Court soon clarified in Davis and its companion case, Hammon v. Indiana, that not
all statements made to law enforcement are “testimonial.” 547 U.S. at 822. “Statements are non-
testimonial,” the Court explained, when made “under circumstances objectively indicating that the
primary purpose of the interrogation is to enable police assistance to meet an ongoing emergency.”
Ibid. Davis involved a 911 call made while the alleged assailant was actually in the caller’s home.
Id. at 817. The Court held the caller’s statements to be non-testimonial. Id. at 828. The Court
contrasted those statements with those at issue in Hammon, in which police responding to a domestic
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disturbance were told by the wife that “nothing was the matter.” Id. at 819. While police confined
the husband to another room, the wife completed an affidavit in which she described an altercation
that had occurred before the police arrived. Id. at 820. The Court held that the affidavit and the
statements made by the wife to the police were not made during an emergency and were therefore
testimonial. Id. at 830.
Distinguishing the statements made during the 911 call in Davis from those made to police
officers in Crawford and Hammon, the Court explained, “In Davis, [the victim] was speaking about
events as they were actually happening, rather than describing past events.” Id. at 828. In Crawford
and Hammon, on the other hand, “[b]oth declarants were actively separated from the defendant . .
. . Both statements deliberately recounted, in response to police questioning, how potentially
criminal past events began and progressed. And both took place some time after the events described
were over.” Id. at 830. The Court emphasized that context matters: “we do not hold . . . that no
questions at the scene will yield non-testimonial answers . . . . [O]fficers called to investigate . . .
need to know whom they are dealing with in order to assess the situation, the threat to their own
safety, and possible danger to the potential victim.” Id. at 832 (internal quotation marks and brackets
omitted).
IV
Under AEDPA, our review of the Ohio Court of Appeals’s decision in Colon’s case is limited
to whether the court correctly identified the “governing legal principle” and whether it “unreasonably
applie[d] that principle to the facts of the prisoner’s case.” Williams, 529 U.S. at 413. The Ohio
court correctly identified as the governing law the Supreme Court cases just discussed. Cleveland,
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2007 WL 179082, at *2-4. Applying that law, the court found that the victim’s statements to Officer
Korber were made during an “ongoing emergency” and were therefore non-testimonial. Id. at *5.
It reasoned that, “[u]nlike the circumstances in Hammon, the incident had just concluded when the
officer arrived, the defendant had just fled the scene and had not been secured by the police, and the
victim was hurt, bleeding and crying.” Id. at *4. “Additionally, the victim made the statements with
the primary purpose of enabling the police . . . to apprehend the person involved.” Id. at *5.
A few months after the Ohio appellate court affirmed Colon’s conviction, this court had
occasion to apply the same precedents in United States v. Arnold, a case heard on direct review from
a federal court conviction. In Arnold, we analyzed three sets of statements made by a non-testifying
witness: 1) statements made during a 911 call just after the witness had fled an alleged assailant who
was “fixing to shoot” her; 2) statements made by the still-frantic witness to officers who arrived on
the scene while the assailant was at large; and 3) statements made by the witness to the police when
the assailant suddenly reappeared on the scene. 486 F.3d at 189-92. We found that all of the
statements could be considered non-testimonial because they were made during an “ongoing
emergency.” Ibid. Even when the defendant was not on the scene, “an emergency still existed”
because the defendant remained at large and “the victim was still screaming and crying.” Id. at 190.
Thus, for this court, the distinction between Crawford/Hammon and Davis turned neither on whether
police were present nor on whether the statements were made during the course of an altercation.
We noted that each statement “must be assessed on its own terms and in its own context” and that
“difficult boundary disputes will continue to emerge.” Id. at 189.
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Two years after we decided Arnold, the district court held that the Ohio state court’s
application of Crawford, Davis, and Hammon in Colon’s case was not just wrong, but
“unreasonable.” Quoting Davis, 547 U.S. at 828, the district court emphasized that the Supreme
Court distinguished between statements describing “events as they were actually happening” and
those describing “past events.” It reasoned that “there was no ongoing emergency” in this case
because “Colon had already left the vicinity.” The court instead viewed the case as analogous to
Hammon, in which the police discussed past incidents with a victim who indicated that she faced no
immediate threat. See Davis, 547 U.S. at 830. The district court did not mention Arnold, even
though it was brought to the court’s attention by the magistrate judge. The magistrate judge’s report
and recommendation stated: “In many respects, this case is more similar to the facts of [Arnold] than
either the Davis or Hammon scenarios.” It also emphasized our statement in Arnold that the
boundary between Crawford/Hammon and Davis is not clear cut. See 486 F.3d at 189. The
respondents did not mention Arnold in their written submissions to the district court, but Colon’s
counsel addressed the case and attempted to distinguish it in her objections to the magistrate judge’s
report.
The magistrate judge noted that the circumstances involved here are not unlike those under
which the second set of statements in Arnold were made. In both cases, a still-distressed victim was
interviewed by police officers while her alleged assailant was at large. In both cases, the police
asked questions “in order to assess the situation,” to learn “whom they [were] dealing with,” and to
ascertain the “possible danger to the potential victim.” Davis, 547 U.S. at 832.
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There are of course, differences between this case and Arnold: in the latter, the assailant had
threatened the witness’s life with a gun, the witness had previously called 911 in hysterics, and the
at-large assailant was unaware that police were on the scene. The situation in Arnold may have
involved a more obvious “emergency.” Under AEDPA, however, the question before us is not
whether the cases can be distinguished, but whether the state court’s application of Crawford and
Davis to the facts of Colon’s case was so far wrong as to be “unreasonable.” The boundary between
“arguably wrong” and “unreasonable” is not precisely defined. But when this court, sitting en banc,
came to a similar conclusion when addressing arguably analogous facts just four months after
Colon’s conviction was affirmed, the state court was not unreasonable in finding the statements
made by Colon’s victim to be non-testimonial.
V
Because the Ohio state court reasonably applied the Supreme Court’s Confrontation Clause
jurisprudence in affirming Colon’s conviction, we REVERSE the district court’s grant of Colon’s
petition for a writ of habeas corpus.
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