Horn v. Quarterman

REVISED DECEMBER 12, 2007
United States Court of Appeals
IN THE UNITED STATES COURT OF APPEALS Fifth Circuit
FOR THE FIFTH CIRCUIT
FILED
November 15, 2007
Charles R. Fulbruge III
No. 05-70059 Clerk
PATRICK HORN,
Petitioner-Appellant,
versus
NATHANIEL QUARTERMAN, Director, Texas
Department of Criminal Justice,
Correctional Institutions Division,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
Before GARWOOD, BARKSDALE, and GARZA, Circuit Judges.
GARWOOD, Circuit Judge:
Petitioner–appellant Patrick Horn (Horn) was convicted of
capital murder in Texas state court and sentenced to death. After
Horn filed a petition for habeas relief under 28 U.S.C. § 2254 in
federal district court, the United States Supreme Court decided
Roper v. Simmons, 125 S. Ct. 1183 (2005), declaring unconstitutional
the execution of those under eighteen at the time of their crime.
The district court stayed Horn’s case to allow him to pursue in
state court his claim that because he was seventeen years old at
the time he committed the murder, his execution would violate the
Eighth Amendment’s prohibition on cruel and unusual punishment.
The Texas Court of Criminal Appeals granted Horn relief and
commuted his death sentence to life imprisonment. Ex parte Horn,
No. 75,262 (Tex. Crim. App. October 5, 2005). The district court
then sua sponte lifted the stay and denied Horn’s petition for
habeas relief, but granted Horn a certificate of appealability on
his remaining two claims. Because we find that these claims lack
merit under the governing standards, we affirm.
FACTS AND PROCEEDINGS BELOW
On October 13, 1991, eight-year-old Chad Choice (Choice) was
reported missing from his home in Tyler, Texas. Choice’s older
sister told police investigators that her house keys had gone
missing the day before; she recalled leaving them by the back door
to their residence. Local police interviewed various
individuals—including Horn, who was a family friend and who had
been at the family’s house on October 12th. Finding no evidence of
forced entry or struggle, officers initially treated the case as if
Choice had run away.
Two days after Choice’s disappearance, a ransom note was found
at the business of Choice’s uncle, Greg Sterling (Sterling), and
the investigation immediately shifted to one of kidnapping. The
2
Sterling family was perceived to be wealthy, although in fact
Sterling’s business was in poor financial shape. While
surveillance of the place of exchange indicated in the ransom note
failed to produce any leads, several days later Choice’s mother
received an anonymous phone call stating that Choice’s
disappearance was related to a family member’s drug debt to a man
named Paco. Investigators learned that Sterling owed money to
three Colombian drug dealers operating in the area: Paco, Junior,
and Carlos.
Efforts to locate Choice were unfruitful. America’s Most
Wanted aired a segment on Choice’s disappearance that led to
several reports of sightings, but none of these reports led to
Choice’s discovery. On the first anniversary of Choice’s
disappearance, a family member found a note under her car’s
windshield wiper, suggesting that Choice was alive and available
for ransom. The note was given to police, but Choice was not
located.
On October 10, 1994, FBI agents arrested and incarcerated Horn
on unrelated charges that included two federal credit union
robberies and a carjacking, in which a victim, James Levassar, was
killed. In March 1995, Horn and federal authorities entered into
a written plea agreement, signed by Horn and his counsel and the
Assistant United States Attorney, in relation to those charges.1
1
Notice of this plea agreement was entered on March 24, 1995 on the
docket of the federal case.
3
In exchange for Horn’s cooperation, federal authorities agreed not
to oppose favorable consideration of Horn at sentencing. The
agreement expressly stated, however, that federal authorities would
not file a motion to reduce Horn’s sentence under United States
Sentencing Guidelines Manual § 5K1.1.2 Pursuant to the plea
agreement, Horn was to provide all information known to him
regarding any criminal activity and was to submit to interviews by
both federal and Smith County investigators. The agreement noted
that it was distinct from any agreement with state law enforcement
and that it could not bind Smith County whose district attorney
2
Horn pleaded guilty to state charges of aggravated robbery in the
carjacking matter, resulting in a 35 year sentence. Subsequently, the state
prosecutor, desiring Horn’s testimony in the state prosecution against one
Wells for that same carjacking, requested that the federal prosecutor file a
5K1.1 motion on Horn’s behalf in Horn’s federal case. As a result, the
federal prosecutor on October 31, 1995 wrote Horn’s federal counsel (Scrappy
Holmes) enclosing a proposed revised plea agreement which added a provision
for a possible 5K1.1 motion in return for full and complete cooperation. That
proposed revised plea agreement was never filed (or noted on the docket) in
the federal case, and it is not shown to have been signed by Horn or his
counsel.
Section 5K1.1 stated at the time:
“Substantial Assistance to Authorities (Policy Statement)
Upon motion of the government stating that the defendant has
provided substantial assistance in the investigation or
prosecution of another person who has committed an offense, the
court may depart from the guidelines.
(a) The appropriate reduction shall be determined by the court
for reasons stated that may include, but are not limited to,
consideration of the following:
(1) the court’s evaluation of the significance and
usefulness of the defendant’s assistance, taking into
consideration the government’s evaluation of the
assistance rendered;
(2) the truthfulness, completeness, and reliability of any
information or testimony provided by the defendant;
(3) the nature and extent of the defendant’s assistance;
(4) any injury suffered, or any danger or risk of injury
to the defendant or his family resulting from his
assistance;
(5) the timeliness of the defendant’s assistance.” U.S.
SENTENCING GUIDELINES MANUAL § 5K1.1 (1994).
4
intended to prosecute Horn for the murder of Levassar.3
In a separate agreement with Horn also related to the
carjacking, the Smith County district attorney’s office agreed
that, while it would prosecute Horn for the murder of James
Levassar—the victim of the carjacking—in exchange for Horn’s
cooperation, it would not seek the death penalty.
In late 1995 or early 1996, Horn started hinting to federal
authorities that he had information about Choice’s disappearance.4
On October 16, 1995, Sterling’s girlfriend discovered a human skull
and a note on the doorstep of the residence that she and Sterling
shared. A forensic anthropologist later determined that the teeth
in the skull suggested the deceased had been around nine years old
at the time of death. Several months later, in April of 1996,
while Horn was detained on the carjacking charges at the Smith
County jail, Horn received a package that included a child’s leg
bone and a note. On May 24, 1996, upon Horn’s defense attorney’s
consent, the FBI arranged for Choice’s mother to confront Horn in
his jail cell. Horn, however, did not admit any involvement at
that time.
3
In April 1995, after entering into the plea agreement with federal
authorities and after pleading guilty, Horn moved to withdraw his plea. His
motion was denied.
4
In October of 1995, Horn spoke with FBI agents regarding Choice’s
disappearance. He again spoke with the FBI in January of 1996.
5
On May 31, 1996,5 Horn was scheduled to be sentenced in
federal court for the credit union robberies and carjacking
charges. In an in camera proceeding on that date, the federal
district court judge told Horn that he was aware that authorities
thought he might know something about Choice’s disappearance and
advised Horn to consult with his attorney (Scrappy Holmes) about
what he might know and whether he might be able to get immunity.
Horn, Horn’s defense attorney, and the federal prosecutor were
present during the in camera proceeding.
Later that day, Horn told the FBI the location of Choice’s
body. Horn admitted that he had been involved in the drug trade
with the three Colombians—Paco, Carlos, and Junior. He stated that
he bought drugs from the Colombians and then sold some of those
drugs to Sterling. Horn stated that Sterling owed the Colombians
a substantial amount of money, and that because of this debt, the
Colombians requested that Horn steal the keys to Choice’s home.
Horn stated that he had done so and had given the keys to Carlos.
According to Horn, Paco and Carlos kidnapped Choice in an attempt
to collect Sterling’s drug debt. Horn claimed that after the
Colombians abducted Choice, they picked him up in their car and
5
The TCCA’s opinion affirming Horn’s conviction and sentence suggests
that the date was May 11, 1996. See Horn v. State, No. 73,684, at 6 (Tex.
Crim. App. Dec. 4, 2002). Horn and respondent Dretke, however, indicate in
their briefs on appeal that the pertinent date was, as noted above, May 31,
1996, and the record of the pretrial hearing on Horn’s motion to suppress
statements made the same day reflects that the correct date is indeed May
31st.
6
drove him and Choice to an isolated location in East Texas. There,
Horn claimed, Paco shot and killed Choice. Also according to Horn,
a few days after Choice’s abduction and murder, Paco and Carlos
arrived at Horn’s home and ordered Horn to bury Choice in his
backyard. Horn claimed that he did so because he feared losing his
own life. Horn led the FBI to the murder scene and the burial
site.
On March 31, 1997, Horn was indicted for the capital murder of
Chad Choice in Tyler, Smith County, Texas. Horn pleaded not guilty
and his case proceeded to trial in the District Court of Smith
County, Texas, 241st Judicial District. Horn moved to suppress the
statements he made to federal authorities on or shortly after May
31, 1996. After conducting a pretrial evidentiary suppression
hearing, the state trial court denied Horn’s motion, finding that
Horn’s statements were made voluntarily. Horn also objected to the
admission of testimony through two-way closed-circuit television by
state prosecution witness John Birk (Birk), who was terminally ill
with cancer and being treated in Ohio. The trial court overruled
Horn’s objection and allowed the introduction of Birk’s testimony
by the two-way system. Horn did not testify.
On October 4, 1999, Horn was convicted of the capital murder
of Choice—specifically, murder committed in the course of
committing kidnapping. TEX. PENAL CODE § 19.03(a). Horn was
sentenced to death. TEX. CODE CRIM. PROC. art. 37.071. Judgment was
7
originally entered on October 12, 1999. An amended judgment was
signed and entered on March 20, 2000.
An automatic direct appeal to the Texas Court of Criminal
Appeals was entered on February 26, 2001. Horn asserted various
grounds for relief—including his claims that the trial court should
not have allowed prosecutors to introduce Horn’s statements made
May 31, 1996 or shortly thereafter because they were made
involuntarily, and that his confrontation right was violated when
the trial court allowed Birk to testify by two-way closed-circuit
television. In a some thirty page unpublished opinion, the Texas
Court of Criminal Appeals (TCCA) rejected these arguments and
affirmed Horn’s conviction and sentence. Horn v. State, No. 73,684
(Tex. Crim. App. Dec. 4, 2002) (en banc). The United States
Supreme Court denied certiorari on October 6, 2003. Horn v. Texas,
124 S. Ct. 88 (2003). Horn also filed an application for writ of
habeas corpus in state court.6 The state trial court entered
findings of facts and conclusions of law and recommended that
relief be denied on December 3, 2002. The TCCA adopted the trial
court’s findings and conclusions and denied state habeas relief on
March 5, 2003. Ex parte Horn, No. 54,489-01 (Tex. Crim. App. Mar.
6
Horn did not raise the claims discussed here on collateral review in
state court. He fulfilled 28 U.S.C. § 2254’s requirement of exhaustion of
state remedies by asserting those claims during his trial and on direct appeal
to the TCCA. See Castille v. Peoples, 109 S. Ct. 1056, 1059 (1989) (noting
that once state courts have ruled on a claim, in order to apply for federal
habeas relief, a petitioner need not ask for collateral relief in the state
court for the same claim decided on direct review).
8
5, 2003) (per curiam) (unpublished).
On October 6, 2004, Horn filed the instant petition for
federal habeas relief under 28 U.S.C. § 2254 in the district court
below, asserting three grounds for relief: that Horn’s Sixth
Amendment right to confront his accusers was violated when the
state prosecution was allowed to examine Birk, who was in Ohio, by
two-way closed-circuit television; that Horn’s statements made May
31, 1996 (or shortly thereafter) to federal authorities were
involuntary under the Fifth Amendment of the United States
Constitution; and that the execution of juvenile offenders is
unconstitutional because it violates evolving standards of decency.
After Horn filed his habeas petition in federal court, the
United States Supreme Court decided Roper v. Simmons, 125 S. Ct.
1183 (2005), holding that “[t]he Eighth and Fourteenth Amendments
forbid imposition of the death penalty on offenders who were under
the age of 18 when their crimes were committed.” 125 S. Ct. at
1200. Accordingly, on June 27, 2005, the federal district court
considering Horn’s habeas petition stayed Horn’s case to allow Horn
to exhaust his Roper v. Simmons claim in state court. On October
5, 2005, the TCCA, in an unpublished opinion, granted Horn relief
on that claim (because he was 17 years old at the time of the
offense) and accordingly commuted his death sentence to life
imprisonment. Ex parte Horn, No. AP-75,262 (Tex. Crim. App. Oct.
5, 2005). On November 8, 2005, the federal district court sua
9
sponte lifted the stay it had imposed on Horn’s federal habeas case
and denied relief on Horn’s two remaining claims.
On December 6, 2005, Horn filed notice of his intent to
appeal. On December 13, 2005, Horn filed a request for a
certificate of appealability, as required by 28 U.S.C. §
2253(c)(2). The district court granted Horn’s request and issued
a certificate of appealability on two claims:
“1. [Horn] was denied the right to confront witnesses
against him because the Court allowed a witness to
testify via closed-circuit television;
2. He was denied due process by the prosecution’s
promising not to seek the death penalty against him in
exchange for his telling them details of his crime, then
breaking that promise and using the statements he made.”
We address Horn’s two claims below.
DISCUSSION
I. STANDARD OF REVIEW
“In a habeas corpus appeal, we review the district court’s
findings of fact for clear error and its conclusions of law de
novo, applying the same standards to the state court’s decision as
did the district court.” Busby v. Dretke, 359 F.3d 708, 713 (5th
Cir. 2004).
28 U.S.C. section 2254(d) provides:
“An application for a writ of habeas corpus on behalf of
a person in custody pursuant to the judgment of a State
court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings
unless the adjudication of the claim—
(1) resulted in a decision that was contrary to, or
involved an unreasonable application of, clearly
10
established Federal law, as determined by the Supreme
Court of the United States; or
(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.A. §2254(d) (West 2006).7
This court reviews both pure questions of law and mixed questions
of law and fact under § 2254(d)(1), while it reviews questions of
fact under § 2254(d)(2). Martin v. Cain, 246 F.3d 471, 475 (5th
Cir. 2001). Because Horn’s claims for which he has been granted a
certificate of appealability involve mixed questions of law and
fact, we look to § 2254(d)(1) in our analysis. See Gochicoa v.
Johnson, 118 F.3d 440, 445 (5th Cir. 1997) (whether defendant’s
Sixth Amendment confrontation right was violated is a mixed
question of law and fact); Gunsby v. Wainwright, 596 F.2d 654, 655
(5th Cir. 1979) (voluntariness issue involves mixed questions of
law and fact).
Under section 2254(d)(1):
“[T]here are two categories of cases in which a state
prisoner may obtain federal habeas relief with respect to
a claim that was adjudicated on the merits in state
court: if the state court decision was either ‘contrary
to . . . clearly established Federal law, as determined
by the Supreme Court’ or ‘involved an unreasonable
application of[] clearly established Federal law, as
determined by the Supreme Court’.” Martin, 246 F.3d at
476 (quoting 28 U.S.C. § 2254(d)(1)).
A state court’s decision is “contrary to” clearly established
7
The quoted current version of § 2254(d) reflects amendments to § 2254
made by the Antiterrorism and Effective Death Penalty Act of 1996, Pub. L. No.
104-132, 110 Stat. 1214 (AEDPA). Because Horn’s federal habeas application
was filed after AEDPA’s enactment, AEDPA is applicable to it. See Martin v.
Cain, 246 F.3d 471, 475 (5th Cir. 2001).
11
federal law within the meaning of the first category of cases
eligible for relief under 28 U.S.C. § 2254(d)(1) “if it relies on
legal rules that directly conflict with prior holdings of the
Supreme Court or if it reaches a different conclusion than the
Supreme Court on materially indistinguishable facts.” Busby, 359
F.3d at 713 (emphasis added). The Supreme Court has not considered
the use of two-way closed-circuit television in relation to the
Sixth Amendment, nor has it ruled in a case that was “materially
indistinguishable” from Horn’s. Thus, the state court decision
Horn challenges was not “contrary to” clearly established federal
law because “it did not apply a rule contradictory to applicable
Supreme Court precedent; and it did not reach a result, under
‘materially indistinguishable’ facts, in conflict with such
precedent.” Martin, 246 F.3d at 476. We therefore focus on
whether the state court’s decision constituted an unreasonable
application of Supreme Court precedent to the facts. See id.
A state court’s decision constitutes an “unreasonable
application” of “clearly established Federal law, as determined by
the Supreme Court,” “‘if the state court correctly identifies the
governing legal principle from [Supreme Court] decisions but
unreasonably applies it to the facts of the particular case.’”
Busby, 359 F.3d at 713 (quoting Bell v. Cone, 535 U.S. 685, 694,
122 S. Ct. 1843, 152 L. Ed. 2d 914 (2002)). “We cannot reverse the
denial of habeas relief simply by concluding that the state court
12
decision applied clearly established federal law erroneously,” but
rather, “we must conclude that such application was also
unreasonable.” Martin, 246 F.3d at 476; see Neal v. Puckett, 286
F.3d 230, 233 (5th Cir. 2002) (en banc) (per curiam) (denying
habeas relief where state court’s conclusion was incorrect but not
unreasonable).8
Lastly, “we presume that the state court’s factual
determinations are correct, and we may grant relief only if a
factual determination is unreasonable based on the evidence
presented to the state court.” Busby, 359 F.3d at 713 (citing 28
U.S.C. § 2254(d)(2), (e)(1)).
II. HORN’S SIXTH AMENDMENT CLAIM
As stated in Horn’s brief to this court, the essence of his
defense at trial was that “the Colombians kidnapped and killed Chad
Choice and [that Horn’s] involvement in the abduction and murder
was the result of duress.” To show that Horn’s version of events
was false, state prosecutors introduced the testimony of three
current or former inmates, all of whom testified that Horn had told
them that he had killed a young boy. One of these witnesses was
8
In Neal, we noted that the United States Supreme Court has emphasized
“the critical distinction between an unreasonable application of federal law
and a merely ‘incorrect’ or ‘erroneous’ application of federal law.” 286 F.3d
at 236. Accordingly, we concluded that, “Because section 2254(d) ‘places a
new constraint’ on a federal habeas court and demands greater deference to
state courts, we have no authority to grant habeas corpus relief simply
because we conclude, in our independent judgment, that a state supreme court’s
application of Strickland is erroneous or incorrect.” Id. (referring to
Strickland v. Washington , 466 U.S. 668, 104 S. Ct. 2052, 80 L. Ed. 2d 674
(1984)).
13
former inmate Birk, who had become acquainted with Horn while both
were incarcerated at the Van Zandt County, Texas, jail.
At the time of Horn’s trial, Birk was terminally ill and
hospitalized in Sylvania, Ohio for liver cancer. He was not
expected to improve. His doctor stated that it would be medically
unsafe for Birk to travel from Ohio to testify in Texas and
strongly recommended against Birk’s traveling. Over Horn’s Sixth
Amendment objections, the trial court permitted Birk to testify
from his hospital in Ohio by means of two-way closed-circuit
television, with an attorney for the state and counsel for Horn
present with Birk as he testified. Horn himself was denied
permission to attend, but through the two-way system (utilizing 4x6
foot screens), Horn was able to see Birk as Birk testified, as also
could the jury and the court, and Birk, as he testified, was able
to see Horn.9
Birk testified that Horn had admitted that he “capped a little
boy and buried him in his backyard.”10 Birk also stated that Horn
9
It is also indicated, and, there being no evidence or claim to the
contrary, we conclude that Birk, as he testified, could also see the jury and
the court.
10
Birk testified:
“Q. [PROSECUTOR] Can you tell this jury in Texas the comments that
Mr. Horn made to you?
A. [BIRK] The first story that he told me was that he had told the
police some of his friends and himself had buried a little boy in
his backyard.
Q. And why did he say he had said that a bunch of his friends and
he had done that?
A. He had wanted to come back to Tyler, Texas, or the surrounding
area, because he wanted to escape.
Q. That - - was there any discussion by him about the ability to
escape from a federal penal institution versus a county jail?
14
admitted to him that he had lied to law enforcement about the
Colombians’ role in Choice’s abduction and murder because he wanted
to be transferred from the federal penitentiary to the local county
jail where Horn thought he could escape more easily.
In his petition for federal habeas relief, Horn maintains that
Birk’s testimony violated his Sixth Amendment confrontation right
in two ways: first, Horn asserts that the state court violated the
Confrontation Clause’s literal meaning by allowing Birk to testify
in a manner that precluded the type of in-person, face-to-face
confrontation contemplated by the Sixth Amendment. Second, Horn
claims that because Birk was in Ohio at the time the Texas trial
judge administered the oath, Birk was not subject to Texas perjury
laws when he testified—an important procedural safeguard guaranteed
A. Yes, sir. He said the county jails were Mickey Mouse compared
to the federal system.
Q. So he made up the story about his friends so that he could be
put in a county jail, which was Mickey Mouse, so he would have a
better chance to escape? Is that your testimony?
A. Yes, sir.
Q. Did he - - did he mention on any other occasions the situation
involving the little boy that was buried behind his backyard?
A. Yes, sir.
Q. Will you tell this jury how that came about and what it is
that he said specifically?
. . .
A. He - - he had told me not to screw him, that he had capped a
little boy and buried him in his backyard.
Q. He had capped - -
A. And he would have no resolve to doing - - taking care of me.
Q. Now, he said he had capped a little boy - -
A. Yes, sir.
Q. - - and buried him in his backyard?
In terms of your understanding of that term, what does the
term ‘capped’ mean?
A. Shot.”
15
by the Sixth Amendment.11
A. Testimony via two-way closed-circuit television
On September 13, 1999, the state moved to allow Birk’s
examination through closed-circuit television. Horn objected,
arguing that the closed-circuit television examination would
violate his confrontation right. The state trial court held a
hearing outside the jury’s presence to discuss the issue, and
initially determined that it could not grant the state’s request.
However, after considering further evidence and conducting a
telephone conference with Birk’s doctor in Ohio on September 15,
1999, the state court ultimately overruled Horn’s objections.12
11
The Sixth Amendment states:
“In all criminal prosecutions, the accused shall enjoy the right
to a speedy and public trial, by an impartial jury of the State
and district wherein the crime shall have been committed, which
district shall have been previously ascertained by law, and to be
informed of the nature and cause of the accusation; to be
confronted with the witnesses against him; to have compulsory
process for obtaining Witnesses in his favor, and to have the
Assistance of Counsel for his defence.” U.S. CONST. amend. VI.
It is made applicable to the states by the Fourteenth Amendment. Gochicoa,
118 F.3d at 446.
12
The trial court stated:
“THE COURT: Okay. This case, very recent case, out of New York,
decided January 22nd, 1999, they mentioned, of course, as to
extreme exigent circumstances, the record, as a whole, as to the
need for the evidence, the procedural safeguards that were
implemented.
I have - - I have some reluctance, but based upon the - -
the evidence that’s presented here, I’m going to allow the State
to move forward, but [sic] two-way closed circuit. And if there
is - - I need to have some assurances here about how this is going
to happen, because if it can’t be done in this way, then we won’t
do it. Pretty simple.
There should be a way to split screens so that Mr. Horn is
here, and he is always on the screen at one time, and the witness
to be interviewed is always on the screen.”
The trial court apparently relied at least in part on United States v.
Gigante, 166 F.3d 75, 81 (2d Cir. 1999), a case in which the Second Circuit
held, “Upon a finding of exceptional circumstances . . . a trial court may
16
The state court made clear: “[A]s far as the necessity for - -
for this to happen, I’m going to make that finding, that there is
a - - there is a particularized need stated by the State and that
only in that situation would this be - - would this be done and
under the safeguards as provided.”
While the United States Supreme Court has not specifically
addressed the use of two-way closed-circuit television, two of
its decisions concern whether a defendant’s confrontation right
is violated by a witness testifying in a manner that falls short
of in-person, face-to-face confrontation: Coy v. Iowa, 108 S. Ct.
2798 (1988), and Maryland v. Craig, 110 S. Ct. 3157 (1990). In
Coy v. Iowa, the defendant–appellant was convicted in Iowa state
court of two counts of lascivious acts with a child “after a jury
trial in which a screen placed between him and the two
complaining witnesses blocked him from their sight.” 108 S. Ct.
at 2799. The screen used in that case allowed the defendant
“dimly to perceive the witnesses,” but the witnesses could not
see the defendant at all. Id. at 2800. The decision to use the
screen was based on an Iowa statute that provided for such child
witnesses to testify via closed-circuit television or behind a
screen. Id. at 2799–2800. The defendant argued that the
screen’s use violated his confrontation right, but the trial
court rejected this argument and the Iowa Supreme Court affirmed
allow a witness to testify via two-way closed-circuit television when this
furthers the interest of justice.”
17
the defendant’s conviction. Id. at 2800.
The United States Supreme Court reversed the Iowa Supreme
Court, stating that it was “difficult to imagine a more obvious or
damaging violation of the defendant’s right to a face-to-face
encounter” than the use of the screen. Id. at 2803. The Court
left “for another day, however, the question whether any exceptions
exist” to the Confrontation Clause’s most literal requirement: that
the defendant be able to confront his accuser in person, face-to-
face.13 Id. The Court made clear that if such an exception
existed, it “would surely be allowed only when necessary to further
an important public policy,” and “[s]ince there have been no
individualized findings that these particular witnesses needed
special protection, the judgment here could not be sustained by any
13
The Court stated:
“It is true that we have in the past indicated that rights
conferred by the Confrontation Clause are not absolute, and may
give way to other important interests. The rights referred to in
those cases, however, were not the right narrowly and explicitly
set forth in the Clause, but rather rights that are, or were
asserted to be, reasonably implicit—namely, the right to cross-
examine, see Chambers v. Mississippi, 410 U.S. 284, 295, 93 S. Ct.
1038, 1045-1046, 35 L. Ed. 2d 297 (1973); the right to exclude out-
of-court statements, see Ohio v. Roberts, 448 U.S., at 63-65, 100
S.Ct., at 2537-2539; and the asserted right to face-to-face
confrontation at some point in the proceedings other than the
trial itself, Kentucky v. Stincer, supra. To hold that our
determination of what implications are reasonable must take into
account other important interests is not the same as holding that
we can identify exceptions, in light of other important interests,
to the irreducible literal meaning of the Clause: ‘a right to meet
face to face all those who appear and give evidence at trial.’
California v. Green, 399 U.S., at 175, 90 S.Ct., at 1943-1944
(Harlan, J., concurring) (emphasis added). We leave for another
day, however, the question whether any exceptions exist. Whatever
they may be, they would surely be allowed only when necessary to
further an important public policy. Cf. Ohio v. Roberts, supra,
448 U.S., at 64, 100 S. Ct., at 2538; Chambers v. Mississippi,
supra, at 295, 93 S.Ct., at 1045-1046.” 108 S. Ct. at 2803.
18
conceivable exception.”14 Id.
Two years after Coy v. Iowa, the Court decided Maryland v.
Craig, 110 S. Ct. 3157 (1990). The defendant–respondent in Craig
had been convicted in Maryland state court of various offenses,
including child abuse and first and second degree sexual offenses.
110 S. Ct. at 3160, 3162. At trial, the named victim and three
other children testified against the defendant by a one-way closed-
circuit television procedure provided for by Maryland statute.15
Id. at 3161–62. The defendant in Craig objected that the
procedure’s use violated her confrontation right, but her objection
14
The Court rejected the state’s argument that the statute on which the
trial court relied to permit the screen’s use provided adequate findings to
support an exception to the defendant’s confrontation right:
“The State maintains that such necessity [to further an important
public policy] is established here by the statute, which creates a
legislatively imposed presumption of trauma. Our cases suggest,
however, that even as to exceptions from the normal implications
of the Confrontation Clause, as opposed to its most literal
application, something more than the type of generalized finding
underlying such a statute is needed when the exception is not
‘firmly . . . rooted in our jurisprudence.’ Bourjaily v. United
States, 483 U.S. 171, 183, 107 S. Ct. 2775, 2782, 97 L. Ed. 2d 144
(1987) (citing Dutton v. Evans, 400 U.S. 74, 91 S. Ct. 210, 27
L. Ed. 2d 213 (1970)). The exception created by the Iowa statute,
which was passed in 1985, could hardly be viewed as firmly rooted.
Since there have been no individualized findings that these
particular witnesses needed special protection, the judgment here
could not be sustained by any conceivable exception.” 108 S. Ct.
at 2803.
15
Under the Maryland statutory procedure invoked in Craig,
“[T]he child witness, prosecutor, and defense counsel withdraw to
a separate room; the judge, jury, and defendant remain in the
courtroom. The child witness is then examined and cross-examined
in the separate room, while a video monitor records and displays
the witness’ testimony to those in the courtroom. During this
time the witness cannot see the defendant. The defendant remains
in electronic communication with defense counsel, and objections
may be made and ruled on as if the witness were testifying in the
courtroom.” 110 S. Ct. at 3161.
19
was overruled. Id. Unlike in Coy v. Iowa, the trial court in
Craig “made individualized findings that each of the child
witnesses needed special protection.” Id. at 3163. The Court of
Appeals of Maryland, however, reversed and remanded for a new
trial, determining that while the Confrontation Clause does not
always require that the defendant be permitted a face-to-face
courtroom encounter with an accuser, the state had not made a
sufficient showing to invoke the one-way closed-circuit television
procedure. Id. at 3162.
The United States Supreme Court vacated the judgment of the
Court of Appeals of Maryland and remanded the case. Id. at 3171.
Like the Court of Appeals of Maryland, the Supreme Court rejected
the view that the Sixth Amendment uniformly demands in-person,
face-to-face confrontation:
“[A] literal reading of the Confrontation Clause would
‘abrogate virtually every hearsay exception, a result
long rejected as unintended and too extreme.’ Roberts,
448 U.S., at 63, 100 S.Ct., at 2537. Thus, in certain
narrow circumstances, ‘competing interests, if ‘closely
examined,’ may warrant dispensing with confrontation at
trial.’ Id., at 64, 100 S. Ct., at 2538 . . . .
In sum, our precedents establish that ‘the
Confrontation Clause reflects a preference for face-to-
face confrontation at trial,’ Roberts, supra, 448 U.S.,
at 63, 100 S. Ct., at 2537 (emphasis added; footnote
omitted), a preference that ‘must occasionally give way
to considerations of public policy and the necessities of
the case,’ Mattox, supra, 156 U.S., at 243, 15 S. Ct., at
339-340.” Id. at 3165.
The Court concluded that the “state interest in protecting child
witnesses from the trauma of testifying in a child abuse case is
20
sufficiently important to justify the use of a special procedure
that permits a child witness in such cases to testify . . . in the
absence of face-to-face confrontation.” Id. at 3169. The Court
disagreed with the Court of Appeals of Maryland’s holding that the
trial court had made insufficient findings to invoke the procedure.
Id. at 3171. The Court stated, “So long as a trial court makes []
a case-specific finding of necessity, the Confrontation Clause does
not prohibit a State from using a one-way closed circuit television
procedure for the receipt of testimony by a child witness in a
child abuse case.” Id.
In Horn’s case, given the trial court’s efforts to confirm
Birk’s illness and inability to travel and the care with which the
other aspects of Horn’s confrontation rights were preserved, we
cannot say that the decision to permit Birk to testify via two-way
closed-circuit television constituted an unreasonable application
of established federal law. In Craig, the Court determined that
“use of the one-way closed circuit television procedure, where
necessary to further an important state interest, does not impinge
upon the truth-seeking or symbolic purposes of the Confrontation
Clause.” Id. at 3167 (emphasis added). The Court emphasized:
“We find it significant . . . that Maryland’s procedure
preserves all of the other elements of the confrontation
right: The child witness must be competent to testify and
must testify under oath; the defendant retains full
opportunity for contemporaneous cross-examination; and
the judge, jury, and defendant are able to view (albeit
by video monitor) the demeanor (and body) of the witness
as he or she testifies. Although we are mindful of the
21
many subtle effects face-to-face confrontation may have
on an adversary criminal proceeding, the presence of
these other elements of confrontation—oath, cross-
examination, and observation of the witness’
demeanor—adequately ensures that the testimony is both
reliable and subject to rigorous adversarial testing in
a manner functionally equivalent to that accorded live,
in-person testimony.” Id. at 3166.
The state court presiding over Horn’s trial similarly found, after
discussing Birk’s condition with Birk’s doctor, that use of the
unorthodox procedure was necessary, and emphasized that other
aspects of the Confrontation Clause were maintained:
“THE COURT: Okay. Certainly as to the image that’s
projected here in the courtroom, as far as any Sixth
Amendment right to confront witnesses here in court, the
demeanor of the witness appears to be certainly large and
able to be viewed very - - very ably by the jury from
their location.
As far as the demeanor, the questions that will be
placed before him, his - - his oath that he takes here
before the jury, we’ll find that that - - that those
procedural safeguards are implemented here for the
presentation of this witness in these extreme
circumstances as - - as we have mentioned before and that
this is necessary here.”
On direct review, the TCCA also noted the fact that Horn’s
confrontation right was otherwise safeguarded:
“[T]he closed-circuit television procedure used for
Birk’s testimony preserved all of the characteristics of
in-court testimony: the trial court administered an oath
to Birk under the laws of the state of Texas; he was
subject to full cross-examination; and he testified in
full view of the defendant, jury, court, and defense
counsel. In fact, members of both the defense and
prosecution teams sat with Birk in Ohio while he
testified.”16
16
Both the trial court and the TCCA considered Coy v. Iowa, Maryland v.
Craig, and United States v. Gigante (see note 12, supra).
22
Thus, the state court records reflect that a case-specific finding
of necessity was made, and that care was taken to preserve other
aspects of Horn’s confrontation right. Under these circumstances,
we cannot say that the determination that it was constitutionally
sound to permit Birk to testify by way of the two-way television
system constituted an unreasonable application of clearly
established federal law as determined by the Supreme Court.
Horn has not pointed to, and our independent search has not
found, any post-Craig decision by a federal appellate court that
squarely states that introduction of testimony through two-way
closed-circuit television violates the Confrontation Clause.17
17
Since the Court decided Maryland v. Craig, circuits have disagreed on
the issue of whether Craig’s requirement of a specific finding of necessity
applies to testimony by two-way closed circuit television as well as to
testimony by one-way closed circuit television, the procedure employed in
Craig. For example, the Eighth and Eleventh Circuits have explicitly
concluded that Craig governs both types of closed-circuit television
testimony. United States v. Yates, 438 F.3d 1307, 1313 (11th Cir. 2006) (en
banc); United States v. Bordeaux, 400 F.3d 548, 555 (8th Cir. 2005). The
Second Circuit, however, in at least one case has found that “[b]ecause [the
district court] employed a two-way system that preserved the face-to-face
confrontation celebrated by Coy, it is not necessary to enforce the Craig
standard [for specific necessity findings] in this case.” Gigante, 166 F.3d
at 81. The Second Circuit noted:
“The closed-circuit television procedure utilized for [the
witness’s] testimony preserved all of these characteristics of in-
court testimony: [The witness] was sworn; he was subject to full
cross-examination; he testified in full view of the jury, court,
and defense counsel; and [the witness] gave this testimony under
the eye of [the defendant] himself. [The defendant] forfeited none
of the constitutional protections of confrontation.” 166 F.3d at
80 (footnote omitted).
Horn points out in his brief on appeal that the Eleventh Circuit in its en
banc decision in United States v. Yates, and the Eighth Circuit in United
States v. Bordeaux, concluded that testimony via two-way closed-circuit
television is “not constitutionally equivalent to a face-to-face
confrontation.” Bordeaux, 400 F.3d at 554. But neither of those courts found
that testimony via such a system is never constitutional; indeed, Craig
precludes such a finding.
23
Moreover, other circuits have agreed that introduction of testimony
by such means does not constitute an unreasonable application of
clearly established federal law as determined by the Supreme Court.
See, e.g., Fuster-Escalona v. Fla. Dep’t of Corr., 170 F. App’x
627, 629–30 (11th Cir. 2006) (per curiam) (it was “not contrary to,
or an unreasonable application of, established federal law to hold
that no case-specific findings were required prior to [] four
children testifying via two-way closed television”), cert. denied,
127 S. Ct. 1251 (2007); Harrell v. Butterworth, 251 F.3d 926, 931–32
(11th Cir. 2001) (“Florida Supreme Court’s decision—that the
witnesses’ testimony via two-way, closed-circuit satellite
transmission did not violate [defendant’s] constitutional
rights—was neither contrary to, nor an unreasonable application of,
Federal law set forth by Supreme Court cases . . . .”).
Horn admits that Craig is unfavorable to his position, but he
argues that “if Craig is not implicitly overruled it is, at the
very least, on shaky ground.” Horn points out that Craig was based
in large part on the reliability test in Ohio v. Roberts, 100 S. Ct.
2531 (1980), and that Crawford v. Washington, 124 S. Ct. 1354
(2004), overruled Roberts. Indeed, Craig does rely in part on
Roberts. See, e.g., Craig, 110 S. Ct. at 3165 (citing and quoting
Roberts for the proposition that the Court’s “precedents establish
that ‘the Confrontation Clause reflects a preference for face-to-
face confrontation at trial’”). Roberts instructed “that an
24
unavailable witness’s out-of-court statement may be admitted so
long as it has adequate indicia of reliability—i.e., falls within
a ‘firmly rooted hearsay exception’ or bears ‘particularized
guarantees of trustworthiness.’” Crawford, 124 S. Ct. at 1359
(quoting Roberts, 100 S. Ct. at 2539). And, we agree that Crawford
overruled Roberts.18 Whorton v. Bockting, 127 S. Ct. 1173, 1179
(2007) (“. . . we issued our opinion in Crawford, in which we
overruled Roberts”); see Crawford, 124 S. Ct. at 1370–74. Crawford,
however, is inapplicable in this case because it is not retroactive
18
In Crawford, the petitioner challenged the trial court’s permitting
state prosecutors to introduce at his trial his wife’s “tape-recorded
statements to the police as evidence that the [defendant’s] stabbing was not
in self-defense.” 124 S. Ct. at 1358. The petitioner argued that admission of
the evidence violated his Sixth Amendment confrontation right because he had
not been given an opportunity for cross-examination. See id. at 1356–57. The
trial court allowed the prosecutors to introduce the wife’s statements after
concluding that there were sufficient signs of the type of reliability
required by Roberts. Id. at 1358. The Washington Court of Appeals
subsequently reversed the petitioner’s conviction, but it was reinstated by
the Washington Supreme Court. Id. The United States Supreme Court granted
certiorari to determine whether the use of the petitioner’s wife’s statements
violated the Confrontation Clause. Id. at 1359. The Court concluded that it
did, and reversed the judgment of the Washington Supreme Court. Id. at 1374
(“In this case, the State admitted Sylvia’s testimonial statement against
petitioner, despite the fact that he had no opportunity to cross-examine her.
That alone is sufficient to make out a violation of the Sixth Amendment.”).
The Court explained:
“Where nontestimonial hearsay is at issue, it is wholly consistent
with the Framers’ design to afford the States flexibility in their
development of hearsay law—as does Roberts, and as would an
approach that exempted such statements from Confrontation Clause
scrutiny altogether. Where testimonial evidence is at issue,
however, the Sixth Amendment demands what the common law required:
unavailability and a prior opportunity for cross-examination.”
124 S. Ct. at 1374.
The Court in Crawford declined to set out a “comprehensive definition” of
“testimonial.” Id.
25
“to cases already final on direct review.”19 Bockting, 127 S. Ct.
at 1177. Moreover, we are not at liberty to presume that Craig has
been overruled sub silentio. See State Oil co. v. Khan, 118 S. Ct.
275, 284 (1997). Thus, Craig governs our analysis of Horn’s
petition for habeas relief.
Horn also suggests that Craig and other cases involving child
victims of sexual abuse fall into a unique category where courts
sought to protect abused young children from further trauma, and
that Craig’s reasoning may not be extended to protect other
interests. We conclude that it was not unreasonable for the state
trial court and the TCCA to disagree. Craig’s references to “an
important public policy” and “an important state interest,” 110
S. Ct. at 3166, 3167, are reasonably read to suggest a general rule
not limited to protecting child victims of sexual offenses from the
trauma of testifying in a defendant’s presence. Rather, it is
possible to view Craig as allowing a necessity-based exception for
face-to-face, in-courtroom confrontation where the witness’s
inability to testify invokes the state’s interest in protecting the
witness—from trauma in child sexual abuse cases or, as here, from
physical danger or suffering. Other circuits have recognized that
protection of seriously ill witnesses may give rise to the type of
19
The TCCA affirmed Horn’s conviction and sentence on direct review in
2002, Horn v. Texas, No. 73,684 (Tex. Crim. App. Dec. 4, 2002), and the United
States Supreme Court denied Horn’s petition for writ of certiorari in 2003.
Horn v. Texas, 124 S. Ct. 88 (2003). Crawford was decided in 2004.
26
necessity required under Craig to permit testimony by way of
closed-circuit television. See, e.g., Yates, 438 F.3d at 1317 n.10
(acknowledging as a “legitimate reason[] why physical face-to-face
confrontation cannot be accommodated” the protection of a witness’s
“health and safety”); United States v. Benson, 79 F. App’x 813,
820–21 (6th Cir. 2003) (defendant’s confrontation right was not
violated by the district court’s decision to permit an 85-year-old
witness to testify via video conference from another state when the
witness was too ill to travel). Nor are we persuaded by Horn’s
observation that while Texas has a statute allowing child witnesses
to testify by television, see TEX. CODE CRIM. PROC. § 38.071, it does
not have a statute providing for such procedure when a witness is
ill. There is no established law that would indicate that before
the state may invoke Craig, it must be able to point to a statute
codifying the important state interest it wishes to further. In
light of Craig, we hold that the state court’s conclusion that it
was constitutionally sound for Birk to testify via two-way closed-
circuit television was not an unreasonable application of clearly
established federal law as determined by the Supreme Court.20
20
Justice Breyer’s dissenting statement regarding the Supreme Court’s
decision in 2002 to decline to transmit to Congress the Judicial Conference’s
proposed Federal Rule of Criminal Procedure 26(b) also supports our conclusion
that the state court did not unreasonably apply clearly established federal
law as determined by the Supreme Court in this case. Order of the Supreme
Court, 207 F.R.D. 89 (2002). Proposed Rule 26(b) would have “allow[ed] the
use of video transmission whenever the parties are merely unable to take a
deposition under Fed. Rule Crim. Proc. 15.” 207 F.R.D. at 93. While Justice
Scalia, sharing the majority’s view that the proposed rule should not be
transmitted to Congress, stated that the proposed rule was “of dubious
validity under the Confrontation Clause,” id., Justice Breyer filed a
27
B. The Texas court’s administration oath to Birk in Ohio
Another aspect of a defendant’s confrontation right is the
requirement that a witness make his statements under oath. See
Craig, 110 S. Ct. at 3163 (stating that “the right guaranteed by the
Confrontation Clause includes not only a ‘personal examination’ .
. . but also ‘[] insures that the witness will give his statements
under oath’” (internal citation omitted)). The requirement of
testifying under oath impresses the witness “with the seriousness
of the matter and guard[s] against the lie by the possibility of a
penalty for perjury.” Id. (quoting California v. Green, 90 S. Ct.
1930, 1935 (1970)). “The combined effect of [the] elements of
confrontation—physical presence, oath, cross-examination, and
observation of demeanor by the trier of fact—serves the purposes of
the Confrontation Clause by ensuring that evidence admitted against
an accused is reliable and subject to the rigorous adversarial
testing that is the norm of Anglo-American criminal proceedings.”
Id.
Birk voluntarily submitted to the jurisdiction of the Texas
trial court, stated that he understood that he could be prosecuted
dissenting statement joined by Justice O’Connor, in which he noted, “It is not
obvious how video testimony could abridge a defendant’s Confrontation Clause
rights in circumstances where an absent witness’ testimony could be admitted
in nonvisual form via deposition regardless,” id. at 96, and “I believe that
any constitutional problems will arise, if at all, only in a limited subset of
cases.” Id. at 97.
28
for any perjury, and submitted to Texas perjury laws.21 Horn,
however, argues that the Texas state trial judge was unauthorized
to administer an oath to Birk in Ohio, that Birk therefore was not
subject to Texas perjury laws, and that consequently Birk’s
testimony violates “the procedural safeguards insured by the
Confrontation Clause guarantee.” When Horn raised the issue on
direct appeal, the TCCA stated:
“Birk voluntarily submitted himself to the jurisdiction
of Texas for possible criminal liability for perjury.
The jury saw him take the oath to testify truthfully and
was informed that the testimony should be considered as
if given before it in the courtroom. The response given
to the trial court indicates that Birk believed he was
subject to the penalties of the trial court should he
perjure himself. Because the manner of Birk’s testimony
satisfies the criteria and spirit of the Confrontation
Clause, we overrule [this] point of error.”
Like the TCCA, we find no merit in Horn’s second Sixth Amendment
argument for habeas relief; we cannot say that the state court’s
determination that Birk’s oath did not violate Horn’s confrontation
right constituted an unreasonable application of clearly
established federal law. Indeed, a Texas statute arguably would
give Texas jurisdiction to prosecute Birk for perjury had he in
21
The following exchange occurred between Birk and the state trial
court:
“THE COURT: Okay. As far as submitting to the jurisdiction of the
Court here and as to the oath that you would take and any process
of - - of the Court here, are you submitting to that voluntarily
here under your oath that you have previously taken, Mr. Birk?
THE WITNESS: Yes, ma’am.
THE COURT: Okay. And you understand that you can be prosecuted
for any perjury, and it would be aggravated perjury, any kind of
perjury count that would be brought against you, you are
submitting to that; is that correct?
THE WITNESS: Yes, ma’am.”
29
fact perjured himself. See TEX. PENAL CODE § 1.04.22 Further, there
is no established law from the United States Supreme Court
dictating that the administration of the oath to Birk in Ohio
violated the Confrontation Clause. Given Birk’s voluntary
submission to jurisdiction in Texas, we cannot say that it was
unreasonable for the state court to conclude that Horn’s Sixth
Amendment right was not violated.
To be clear, we do not decide whether use of the two-way
closed-circuit television or the Texas court’s administration of an
oath to Birk in Ohio actually violated Horn’s confrontation
rights.23 We hold only that the TCCA’s conclusion that these
procedures did not violate Horn’s Sixth Amendment rights was not
“contrary to” and did not constitute “an unreasonable application
22
Section 1.04, “Territorial Jurisdiction,” of the Texas Penal Code
states in part that Texas “has jurisdiction over an offense that a person
commits by his own conduct . . . for which he is criminally responsible if: .
. . (2) the conduct outside this state constitutes an attempt to commit an
offense inside this state .”
Horn has cited no case holding that a prosecution for perjury or like
offense under Texas law could not lie against a witness in Birk’s position if
his testimony had been intentionally false in a material respect. See, also,
e.g., 60A Am. Jur.2d, Perjury, § 13 “. . . it is generally considered
immaterial whether the person administering the oath is an officer de jure or
de facto, if his or her act takes place in the court’s presence and by its
sanction.” And see, United States v. Williams, 71 S. Ct. 595, 600 (1951) (“. .
. federal courts . . . uphold charges of perjury despite arguments that the
federal court at the trial affected by the perjury could not enter a valid
judgment due to lack of diversity jurisdiction, or due to the
unconstitutionality of the statute out of which the perjury proceedings
arose;” footnotes omitted).
23
We are aware of no decision (by any court) holding the confrontation
clause violated where the court placed the witness under what purported to be
a fully binding oath subject to penalties of perjury, and the witness
acknowledged it to be such, but it was later determined on appeal (or
collateral attack) that the oath was actually not sufficient to subject the
witness to perjury prosecution for knowingly giving materially false
testimony.
30
of, clearly established Federal law, as determined by the Supreme
Court of the United States.” 28 U.S.C. § 2254(d)(1).24
24
Even if Horn’s confrontation right had been violated, that violation
would be subject to harmless-error analysis. See Coy, 108 S. Ct. at 2803 (“We
have recognized that other types of violations of the Confrontation Clause are
subject to that harmless-error analysis, see e.g., Delaware v. Van Arsdall,
475 U.S., at 679, 684, 106 S. Ct., at 1436, 1438, and see no reason why denial
of face-to-face confrontation should not be treated the same.”). We have
previously explained the applicable standard:
“On direct appeal, when faced with a constitutional violation, a
court must reverse the judgment of the court below unless the
constitutional error is ‘harmless beyond a reasonable doubt.’ See
Chapman v. California, 386 U.S. 18, 24, 87 S. Ct. 824, 17 L. Ed. 2d
705 (1967). However, in Brecht v. Abrahamson, 507 U.S. 619, 637,
113 S. Ct. 1710, 123 L. Ed. 2d 353 (1993), the Supreme Court
articulated a ‘less onerous’ standard for assessing the impact of
a state court’s constitutional error on collateral review. Under
Brecht, a federal court may grant habeas relief on account of
constitutional error only if it determines that the constitutional
error had a ‘substantial and injurious effect or influence in
determining the jury’s verdict.’ See id. at 623, 113 S. Ct. 1710
(quoting Kotteakos v. United States, 328 U.S. 750, 776, 66 S. Ct.
1239, 90 L. Ed. 1557 (1946)). Under this standard, however, the
petitioner should prevail whenever the record is ‘so evenly
balanced that a conscientious judge is in grave doubt as to the
harmlessness of the error.’ O’Neal v. McAninch, 513 U.S. 432,
436, 115 S. Ct. 992, 130 L. Ed. 2d 947 (1995). As this court has
explained, ‘if our minds are ‘in virtual equipoise as to the
harmlessness’ under the Brecht standard, of the error, then we
must conclude that it was harmful.’ Woods v. Johnson, 75 F.3d
1017, 1026–27 (5th Cir. 1996) (quoting O’Neal, 513 U.S. at 435,
115 S. Ct. 992).” Robertson v. Cain, 324 F.3d 297, 304–05 (5th
Cir. 2003).
The fact that the trial court and the TCCA, on direct review of Horn’s case,
found only that there had been no constitutional error and did not address
whether any such error was harmless, does not preclude our use of the Brecht
standard. In a recent case, the United States Supreme Court stated:
“We hold that in § 2254 proceedings a court must assess the
prejudicial impact of constitutional error in a state-court
criminal trial under the ‘substantial and injurious effect’
standard set forth in Brecht, 507 U.S. 619, 113 S. Ct. 1710, 123
L. Ed. 2d 353, whether or not the state appellate court recognized
the error and reviewed it for harmlessness under the ‘harmless
beyond a reasonable doubt’ standard set forth in Chapman, 386 U.S.
18.” Fry v. Pliler, 127 S. Ct. 2321, 2328 (2007).
Accordingly, assuming a confrontation right error, the question we would face
is whether that error “had a ‘substantial and injurious effect or influence in
determining the jury’s verdict.’” Robertson, 324 F.3d at 307 (quoting Brecht
v. Abrahamson, 113 S. Ct. 1710, 1722 (1993)).
Because of our holding that the TCCA’s determination that the challenged
procedures did not violate Horn’s confrontation rights was not contrary to,
and did not constitute an unreasonable application of, clearly established
31
III. HORN’S STATEMENT TO FEDERAL OFFICERS
In his second claim for habeas relief, Horn insists that the
statement he made to federal officers describing his involvement in
Chad Choice’s disappearance and murder was involuntary. Horn bases
this argument on several assertions, including: his statement was
compelled through promises contained in his plea agreement with
federal authorities; his will was overborne by the threat of a
death sentence; and his will was overborne because of the pressure
he received from those in authority to confess. We find no merit
in this claim of involuntariness.
“The applicable standard for determining whether a confession
is voluntary is whether, taking into consideration the ‘totality of
the circumstances,’ the statement is the product of the accused’s
‘free and rational’ choice.” Rogers, 906 F.2d at 190 (citing
Martinez v. Estelle, 612 F.2d 173, 177 (5th Cir. 1980). “A
statement is not ‘compelled’ within the meaning of the Fifth
Amendment if an individual ‘voluntarily, knowingly and
intelligently’ waives his constitutional privilege.” Id. at 190–91
(quoting Miranda v. Arizona, 86 S. Ct. 1602, 1612 (1966)).
Before trial, Horn moved to suppress the statements he made to
law enforcement authorities after the in camera proceeding on May
31, 1996. On August 23, 1999, the state trial court conducted a
federal law as determined by the Supreme Court, we do not further address the
matter of harmlessness.
32
pretrial motion to suppress hearing, during which state prosecutors
presented testimony from the assistant United States attorney
handling Horn’s sentencing at the time of the May 31, 1996
proceeding; from Horn’s lawyer at the time of the May 31, 1996
proceeding; and from the FBI special agent who had primary
responsibility for the case of Choice’s disappearance. The state
trial court carried the motion to suppress forward with the trial.
On September 15, 1999, the state trial court denied Horn’s motion
to suppress:
“As far as the voluntariness of - - of the actions of Mr.
Horn, based upon the - - he was with counsel during the -
- in particular the - - the discussions with [the federal
district court judge], that record that was obtained from
that, he had a full and knowing chance to - - to consult
with counsel, his rights were certainly explained to him
in some detail from that record.
As far as any inducements that may have been made
such that would have overcome any free will that he would
have exercised in leading authorities, in making any
statements that were made leading them to the evidence
that I know is at issue here, I believe it was voluntary.
It didn’t rise to the level of involuntary action on his
part.
. . . [T]he motion to suppress is denied.” (emphasis
added)
On direct review, the TCCA also rejected Horn’s contention
that his statements to federal authorities on May 31, 1996 were
involuntary:
“[T]he appellant argues that his rights to due process
and due course of law were violated when the trial court
admitted involuntary statements he made to law
enforcement officers that led them to the discovery of
the victim’s remains. The appellant argues that he
struck a plea agreement with federal authorities whereby
he would plead guilty to carjacking and credit union
robberies, but provide information regarding the
33
whereabouts of Chad Choice in return for consideration on
his federal sentence. The appellant’s federal defense
counsel, a federal prosecutor, and a federal agent
testified that no one offered to recommend consideration
for inculpatory information leading to Chad Choice’s
remains.
. . . The record supported the trial court’s
decision to admit the complained-of statements in the
instant case.” (emphasis added)
As discussed below, the state trial court’s and the TCCA’s
determination that Horn’s statements to law enforcement officials
on May 31, 1996 were voluntary, was not contrary to, or an
unreasonable application of, clearly established federal law as
determined by the United States Supreme Court.
At the time that Horn disclosed to federal law enforcement
officials his involvement in Choice’s disappearance, there were no
related charges pending against him. In March 1995, Horn had
entered into a written plea agreement (signed by Horn and his
counsel and the Assistant United States Attorney) with the United
States government in which the federal government agreed to “not
oppose a reduction in the Defendant’s base offense level of three
(3) points pursuant to U.S.S.G. Section 3E1.1(b)(2) for acceptance
of his responsibility in the charged offense.”25 However, this plea
25
The agreement stated, however, that Horn “understands that the
Government WILL NOT be filling [sic] a motion to reduce sentence pursuant to
USSG Section 5K1.1 or Fed. R. Crim. P. 35.” The agreement further stated:
“The Defendant agrees to cooperate fully and honestly with the
United States Government as well as the Smith County, Texas,
District Attorney’s Office in the investigation and prosecution of
others involved in the subject matter of this indictment. The
Defendant understands and agrees that complete and truthful
cooperation is a material condition of this agreement.
Cooperation shall include providing all information known to the
Defendant regarding any criminal activity, including but not
34
agreement and the separate agreement Horn entered into with state
authorities were entirely unrelated to Choice’s kidnapping and
murder. As such, Horn’s situation is distinguishable from that of
the defendant in Gunsby v. Wainwright, 596 F.2d 654 (5th Cir.
1979), a case upon which Horn relies. In Gunsby, the district
court granted habeas relief to the defendant after determining that
the defendant’s statements were legally involuntary, and we
affirmed. 596 F.2d at 655. However, unlike Horn, the statements
at issue in Gunsby were related to the offense for which the
defendant entered into a plea bargain. See id. at 658. That is,
Gunsby, who had been charged with robbery and had negotiated a plea
bargain “whereby he agreed to plead guilty to robbery and testify
against two codefendants,” made statements by which he incriminated
himself in the charged robbery. Id. at 655. Rather than being
sentenced to the seven years and six months that his plea agreement
stated would be the maximum sentence, the plea bargain was set
aside, his statements were used against him, and he “was convicted
of robbery and given a 20-year sentence.” Id. In this case,
Horn’s statements regarding his involvement in Choice’s
disappearance were unrelated to the charges then pending against
limited to the offenses described in this agreement. . . . The
United States Government agrees that any statements made by the
Defendant during the cooperation phase of this agreement shall not
be used against the Defendant in any subsequent prosecutions,
unless and until there is a determination by the Court that the
Defendant has breached this agreement, or for purposes of
impeachment.” (emphasis added)
35
him and to the subject matter of the plea agreements he had with
federal and state authorities.
The fact that Horn’s existing plea agreements were wholly
unrelated to Choice’s abduction and murder also distinguishes this
case from United States v. Rogers, 906 F.2d 189 (5th Cir. 1990), a
federal criminal prosecution, another case that Horn relies on
heavily. In Rogers, this court affirmed the district court’s grant
of the defendant’s motion to suppress, determining that the
defendant’s confession was involuntary under the circumstances.
906 F.2d at 191. However, unlike in Horn’s case, in Rogers the
defendant made statements inside the local sheriff’s office to
federal officials regarding stolen guns—the same subject for which
local law enforcement officers had specifically promised him he
would not be charged if he cooperated.26 Id. at 190. Under those
circumstances, it was reasonable for the defendant to conclude that
this “questioning [by federal officers] was related to the original
investigation and promise by the Sheriff’s Office.” Id. at 191.
26
The details of Rogers are as follows: Law enforcement officials from a
local sheriff’s department interviewed the defendant regarding some stolen
guns. 906 F.2d at 190. The defendant cooperated after officials told him
that he would not be charged if he helped them. Id. Later, the defendant was
asked to go down to the sheriff’s office to speak with someone regarding the
guns. Id. After he arrived, he spoke with two federal officers. Id. at 192.
When his statements to the federal officers led to a three-count indictment
related to the firearms, the defendant moved to suppress. Id. at 190. In
affirming the decision to grant the motion, we explained: “Because the
interview was conducted under the auspices of the Lee County Sheriff’s
Department, whose representatives had assured [the defendant] that he would
not be prosecuted for his purchase of the stolen guns, [the defendant’s]
statement was not ‘voluntary’ for purposes of the Fifth Amendment.” Id. at
192.
36
The same cannot be said of Horn’s statements to officials regarding
Choice’s murder.
Further, Horn’s plea agreement with federal authorities
specifically spelled out that it did not bind state authorities:
“The Defendant understands that the Smith County, Texas,
District Attorney’s Office is also going to prosecute him
for his role in the subject matter of this Indictment
which includes the murder of James Clark Levassar. The
Smith County, Texas, District Attorney’s Office has
agreed not to seek the death penalty in return for his
plea of guilty and cooperation. Additionally, they have
agreed that any sentence of imprisonment the Defendant
receives in state court on related charges will run
concurrently with the sentence of imprisonment he
receives in federal court. . . . The Defendant
understands that his agreement with the Smith County
District Attorney’s Office is distinct from this
agreement. The Defendant understands that the United
States of America and the United States District Court
cannot bind the Smith County, Texas, District Attorney’s
Office regarding this matter.”
We also reject Horn’s contention that his will was overborne
by pressure to confess placed on him by authorities. During the
May 31, 1996 in camera proceeding, the federal district court judge
specifically encouraged Horn to discuss with his attorney the pros
and cons of disclosing information to the authorities. The
substance of the in camera proceeding was as follows:
“THE COURT: . . . Mr. Horn, I’m going to suggest to you
that you not say one word during this proceeding.
MR. HORN: Yes, sir.
THE COURT: Just have nothing whatever to say. I just
want to make some statements to you. The attorneys have
outlined to me what your present situation is. From my
past dealings with you, I have perceived that you are a
person of high intelligence and you understand what goes
on. I think you understand what your situation is now.
As you know, the Court is bound by the Sentencing
37
Guidelines unless there is a motion for downward
departure from the Government. I think you know that.
MR. HORN: Yes, sir.
THE COURT: Nothing I can do. It is just up to whether
the Government files that motion. I am told that you
have indicated, without telling any details, that you may
know something about the disappearance of a young man by
the name of Chad Choice. Whether that is so, I don’t
know. I am not– I am saying to you that you face a bleak
prospect if you don’t do something.
I am not going to advise you what to do. You are a
free spirit. You can do what you want to do. But you
have an extraordinarily good lawyer. He is one [of] the
best lawyers that I know of in Texas. I have always
found him to be completely dependable. If he tells me
something that is going to happen, that is the way it is
going to be. Any communication that he has with you is
absolutely secret. It cannot be divulged.
In other words, what you tell him is between you and
him and no one else. And no one can ever call him aside
and say, ‘Tell us what he said.’ If he did that, he
could – if he did say what you said, he could be
disbarred and never again practice law.
I am told by the Government that they would be
willing to file a motion under 5K1 to depart downward
from your - - what is presently projected as your
sentence if you were to reveal the details of this Chad
Choice disappearance, anything that you might know.
I’m not going to advise you what to do, but I have
got a suggestion. My suggestion to you is that you tell
anything you know to your lawyer. If he thinks that
there is any way that he could cut a deal with these
state authorities based on what you know, he might be
able to get immunity over there. I said “might.” I
don’t know. That would have to be a matter that they
decided between themselves. But if you were to do that,
the attorney for the Government has told me on the record
here - - isn’t that right,. . .?
[GOVERNMENT ATTORNEY]: That’s correct.
THE COURT: - - that he would file a 5K1 departure motion.
Now, if you were to tell your attorney the full details
and it wasn’t to your credit, there would be no way he
could get anything for you, I think he would tell you
that. And you still haven’t lost anything because he is
not going to to tell it. He can’t. That is the law.
And he will also tell you whether he thinks he can make
a deal for you with the state. I just wanted to tell you
this on the record. This is all being taken down.
38
I am not, I emphasize to you, I am not giving you
advice. I am just telling you what the possibilities are
because I think you need to know.” (emphasis added)
This record makes clear that, rather than putting insurmountable
pressure on Horn to confess to his involvement in Choice’s
disappearance, the district court judge encouraged Horn to consult
with his attorney before discussing any knowledge with law
enforcement officials.
While it is true that “a confession given as the result of a
direct or implied promise would be legally involuntary,” Gunsby,
596 F.2d at 656, the circumstances surrounding Horn’s confession to
his involvement in Choice’s disappearance and murder cannot be said
to be the result of any such promise. Horn was clearly advised by
the federal district court judge to consult with his attorney
regarding the possibility of reaching some sort of agreement. The
plea agreements he had entered into at the time were wholly
unrelated to Choice’s abduction and murder, and there was never any
promise that Horn would be immune from prosecution in relation to
Choice’s disappearance. The findings of the state trial court and
the TCCA that Horn’s statements were knowing and voluntary, that
his free will was not overcome, and that no one offered to
recommend consideration for inculpatory information regarding
Choice, are reasonably supported by the record. Admission of
Horn’s statements to the FBI, and the evidence discovered as a
result (Choice’s remains), was not contrary to and did not
39
constitute an unreasonable application of clearly established
federal law as determined by the Supreme Court.
CONCLUSION
Because we find that the state court did not unreasonably
apply established federal law as determined by the United States
Supreme Court, we affirm the district court’s judgment denying
Horn’s petition for habeas corpus.
AFFIRMED
40