Young v. McKune

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
DEC 11 2002
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
BOBBY YOUNG,
Petitioner - Appellant,
v. No. 02-3098
D.C. No. 99-CV-3049-DES
DAVID R. MCKUNE and the (D. Kansas)
ATTORNEY GENERAL OF THE
STATE OF KANSAS,
Respondents - Appellees.
ORDER AND JUDGMENT *
Before SEYMOUR , EBEL , and O’BRIEN , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
*
This order and judgment is not binding precedent, except under the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.
Bobby Young is appealing the district court’s denial of his petition for a
writ of habeas corpus under 28 U.S.C. § 2254. We affirm with respect to Mr.
Young’s Sixth Amendment claim, and we deny his request for a certificate of
appealability (COA) on his due process and ineffective assistance claims.
Mr. Young was convicted of first degree murder for the shooting death of
his girlfriend, Carol Dorsey. His conviction was affirmed on direct appeal. State
v. Young , 852 P.2d 510 (Kan. 1993). His state post-convictions claims were
denied. Mr. Young then filed this § 2254 petition, which the district court denied.
On appeal, Mr. Young asserts the following claims: (1) his Sixth Amendment
confrontation rights were violated by the admission of hearsay testimony from
witnesses Hardin and Brooks concerning his physical abuse of Dorsey; (2) he was
deprived of due process as a result of the trial court’s failure to instruct the jury
regarding his accident defense and the court’s improper reasonable doubt
instruction; and (3) he received ineffective assistance from his trial and appellate
counsel with respect to the accident defense.
Under § 2254(d), Mr. Young is not entitled to habeas relief with respect to
any claim adjudicated on the merits in the state courts unless the adjudication of
the claim
(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
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(2) 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). However, “[i]f the claim was not heard on the merits by the
state courts, and the federal district court made its own determination in the first
instance, we review the district court’s conclusions of law de novo and its
findings of fact, if any, for clear error.” Paxton v. Ward , 199 F.3d 1197, 1204
(10th Cir. 1999) (quotation omitted).
The Kansas Supreme Court did not address the merits of Mr. Young’s Sixth
Amendment claim as the court’s analysis of his challenge to the hearsay testimony
of witnesses Hardin and Brooks was based solely on Kansas law. See Young , 852
P.2d at 514-16. Nonetheless, to be entitled to deferential review under
§ 2254(d)(1), it is not necessary for the state court to specifically cite to the
controlling decisions of the U.S. Supreme Court, and our inquiry must focus
instead on whether the reasoning or the result of the state-court decision
contradicts controlling Supreme Court precedent. See Early v. Packer , 123 S. Ct.
362, 365 (2002).
Brooks is Dorsey’s sister, and Hardin was an acquaintance of Dorsey. Mr.
Young claims his confrontation rights were violated by the admission of Brooks’
testimony that Dorsey said approximately four months before the shooting: “Sis,
I’m afraid of him and, Sis, I think–I think he’s going to kill me.” R., Vol. II,
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Trial Tr. at 666. Similarly, Mr. Young claims his confrontation rights were
violated by the admission of Hardin’s testimony that Dorsey told her
approximately three days before the shooting that “she was afraid to leave
because he would just come there where she was” and that she was afraid of him
“[b]ecause he hit her, he hit her and kicked her, slapped her, you know, whatever;
he just, you know, constantly abused her.” Id. at 736.
The admission of hearsay evidence does not violate the Confrontation
Clause where the declarant is unavailable at trial and the declarant’s statement is
supported by “adequate indicia of reliability.” Idaho v. Wright , 497 U.S. 805, 815
(1990) (quotation omitted). Moreover, “[r]eliability can be inferred without more
in a case where the evidence falls within a firmly rooted hearsay exception.” Id.(quotation omitted). Even if the challenged testimony does not fall within a
firmly established hearsay exception or is not otherwise sufficiently reliable, our
inquiry does not end because “[h]armless error analysis applies to Confrontation
Clause cases.” Jones v. Gibson , 206 F.3d 946, 957 (10th Cir.), cert. denied , 531
U.S. 998 (2000). Consequently, habeas relief will be granted only when “the
constitutional error had substantial and injurious effect or influence on the jury’s
verdict.” Herrera v. Lemaster , 301 F.3d 1192, 1197 (10th Cir. 2002) (en banc)
(citations omitted).
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The district court concluded that the hearsay statements here were
admissible under the “state of mind” exception to the hearsay rule, and that the
statements were sufficiently reliable in light of the “considerable evidence at trial
that petitioner was physically abusive to Dorsey and that he told a number of
persons of his thoughts and motives for killing her.” R., Vol. I, Doc. 22, at 10.
Alternatively, the district court concluded that, “even assuming the statements
attributed to Dorsey were inadmissible, the court is persuaded that any error was
harmless in light of the considerable admissible evidence of petitioner’s
statements prior to the shooting and eyewitness testimony of the physical abuse
Dorsey suffered.” Id. at 11. In addition to that evidence, we also note that Mr.
Young admitted at trial that he had physically abused Dorsey and told other
persons he was going to kill her. 1
Id. , Vol. II, Trial Tr. at 863, 896-98. We agree
with the district court’s constitutional analysis, which supports our conclusion
that neither the reasoning nor the result of the Kansas Supreme Court’s decision
contradicts controlling Supreme Court precedent. We therefore defer to its
1
To the extent the testimony of Brooks and Hardin refers to other crimes or
wrongs, we note the trial court instructed the jury it was to consider the testimony
“solely for the purpose of proving the defendant’s motive, intent, or absence of
mistake or accident.” See R., Vol. II, Trial Tr. at 655, 940. We see no
constitutional error here in the admission of the testimony for this purpose. Cf.
Fed. R. Evid. 404(b) (evidence of other crimes or wrongs admissible to prove
motive, intent, or absence of mistake or accident).
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decision pursuant to § 2254(d)(1) and affirm the denial of habeas relief on Mr.
Young’s Sixth Amendment claim.
To be entitled to a COA on his due process and ineffective assistance
claims, Mr. Young must make a “substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2). Under this standard, he “must
demonstrate that reasonable jurists would find the district court’s assessment of
the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473,
484 (2000).
The trial court instructed the jury on the offenses of first and second degree
murder, and voluntary and involuntary manslaughter. Mr. Young’s primary
defense was that the shooting was an accident, and he claims his due process
rights were violated because the trial court failed to specifically instruct the jury
that he was not guilty of any crime if it concluded the shooting was an accident.
He also claims his trial counsel was ineffective in failing to request a jury
instruction regarding his accident defense, and that his appellate counsel was
ineffective in failing to raise these errors on direct appeal.
We use a highly deferential standard of review to determine in a habeas
proceeding whether a state trial court erred in refusing to give a defense
instruction. Tyler v. Nelson , 163 F.3d 1222, 1227 (10th Cir. 1999) (such errors
not reviewable unless so fundamentally unfair as to deprive petitioner of fair trial
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and due process of law) (quotations and citations omitted). Having carefully
reviewed the trial court record, we conclude Mr. Young has failed to make a
substantial showing that he was deprived of a fair trial due to the trial court’s
failure to specifically instruct the jury regarding his accident defense. Mr. Young
testified that he did not intend to kill Dorsey, and his trial counsel argued
extensively in his opening statement and closing argument that the shooting was
accidental and Mr. Young was therefore not guilty of the principal charge of first
degree murder or of any the lesser included offenses. The jury was instructed it
was required to find that Mr. Young intentionally killed Dorsey in order to
convict him of either first degree murder, second degree murder, or voluntary
manslaughter, and it was further instructed that the term “intentionally” means
“conduct that is purposeful and willful and not accidental .” R., Vol. II, Trial Tr.
at 944 (emphasis added). The jury was also instructed it could find Mr. Young
guilty of the lesser included offense of involuntary manslaughter if it found that
he “unintentionally” killed Dorsey. Id. at 943. The jury unequivocally rejected
Mr. Young’s accident defense by finding him guilty of first degree murder.
Because there is no merit to Mr. Young’s claim that his due process rights were
violated as a result of the trial court’s failure to instruct the jury regarding his
accident defense, Mr. Young “cannot claim prejudice from his attorney[s’] failure
to raise [the claim] at trial or on direct state appeal.” Dennis v. Poppel , 222 F.3d
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1245, 1250 (10th Cir. 2000), cert. denied , 122 S.Ct. 199 (2001). Mr. Young has
thus failed to make a substantial showing of the denial of a constitutional right
with respect to his ineffective assistance claims.
Finally, Mr. Young claims the reasonable doubt instruction was
constitutionally deficient because it “contained language which may have
confused the jury.” Aplt. Br. at 11. We disagree. The trial court instructed the
jury that the state had the burden of proving Mr. Young’s guilt and that “[i]f you
have no reasonable doubt as to the truth of any of the claims made by the state,
you should find the defendant guilty. If you have reasonable doubt as to any of
the claims made by the state, you should find the defendant not guilty.” R., Vol.
II, Trial Tr. at 941. The instruction adequately informed the jury of the
constitutional requirement that Mr. Young’s guilt be proven beyond a reasonable
doubt. See Victor v. Nebraska , 511 U.S. 1, 5 (1994) (“. . . Constitution does
not require that any particular form of words be used in advising the jury of the
government’s burden of proof.”).
We AFFIRM the district court’s denial of habeas relief on petitioner’s
Sixth Amendment claim. We DENY petitioner’s request for a certificate of
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appealability on his due process and ineffective assistance of trial and appellate
counsel claims, and we dismiss that portion of this appeal.
Entered for the Court
Stephanie K. Seymour
Circuit Judge
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