Steven D. Lisle, Jr. v. Guy Pierce

In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 14-3047
STEVEN D. LISLE, JR.,
Petitioner-Appellant,
v.
GUY PIERCE,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Central District of Illinois.
No. 13-4025 — James E. Shadid, Chief Judge.
____________________
ARGUED OCTOBER 28, 2015 — DECIDED AUGUST 11, 2016
____________________
Before WOOD, Chief Judge, and EASTERBROOK and
HAMILTON, Circuit Judges.
HAMILTON, Circuit Judge. Petitioner Steven D. Lisle, Jr. was
convicted of first degree murder and aggravated battery with
a firearm and was sentenced to 37 years in prison. He seeks a
writ of habeas corpus because he contends that the state trial
court admitted as evidence testimonial statements made by
the surviving victim in violation of the Confrontation Clause
of the Sixth Amendment. The district court denied the writ,
2 No. 14-3047
and we affirm. The state courts did not apply Supreme Court
precedent unreasonably in holding that the testimony in
question, about a wounded man’s statement to his aunt while
waiting for an ambulance that Lisle had shot him, was not a
“testimonial” out-of-court statement and thus was permitted
under the Confrontation Clause.
I. Facts
A. The Shootings and the Hearsay Testimony
On September 15, 2003, in Rock Island, Illinois, LaRoy Ow-
ens was shot and killed and Ronald Hearn was wounded. Pe-
titioner Lisle was convicted of first-degree murder and aggra-
vated battery with a firearm.
Our focus is on trial testimony of Angela Lee, who is
Hearn’s aunt. She was asleep at home on the morning of Sep-
tember 15, 2003 when Hearn woke her up by yelling outside
her back door. With five through-and-through bullet wounds,
Hearn had somehow managed to walk to Lee’s house a few
blocks from the scene of the shootings. Lee called 911 and she
and Hearn waited outside for help. While they waited, Lee
asked Hearn some questions. The focus of Lisle’s Confronta-
tion Clause claim is the following testimony:
A I told him that he wasn’t going to die. You
know, he said numerous of [sic] times that he
was going to die, and I told him that he wasn’t.
I told him he was a soldier. Soldiers didn’t die.
But deep down inside, I didn’t think he was go-
ing to make it. Looking at him, I didn’t think he
was going to make it.
No. 14-3047 3
Q Okay. You didn’t think he was going to
make it. Out there in the chair by the van, did
you ask him anything?
A Yes, I did.
Q What did you ask him?
A I asked him who did that to him.
Q What did he say?
A I said: Nell, who did this to you? And he
said – And I asked him again. I said: Who did
this to you? And he said: “Auntie,” he said, “Roy
shot, Auntie. Roy shot.” And then I said: “Roy
did this to you?” He said: “No, Auntie. Roy
shot. Roy shot.” And I said: “Nell, tell me who
did this to you. Tell me.” And he grabbed me—
I kind—I kind of leaned down, and he says:
“Steve.” And he said: “And Korey was with
him.”
Hearn himself did not testify in Lisle’s criminal trial. He was
not shown to have been unavailable, but neither the prosecu-
tion nor defense called him. The jury found Lisle guilty of
first-degree murder and aggravated battery.
B. State Appeals and Federal Court Proceedings
In his direct appeal, Lisle argued that allowing Lee to tes-
tify about Hearn’s out-of-court statement that “Steve” (Lisle)
had shot him violated his Confrontation Clause rights. The
state appellate court affirmed in an opinion issued October 5,
2007. The date is important because it is the date of the state
courts’ last decision on the merits of Lisle’s federal claim. Un-
der 28 U.S.C. § 2254(d)(1), the issue is whether the state court’s
4 No. 14-3047
decision was an unreasonable application of Supreme Court
precedent at that time. The Illinois Supreme Court denied
Lisle’s petition for leave to appeal.
After unsuccessful efforts to obtain post-conviction relief
in the state courts, Lisle filed a federal habeas corpus petition
in 2013. He raised several claims, but the claim that was
properly before the federal court was his Confrontation
Clause claim based on Lee’s testimony about Hearn’s out-of-
court statement that Lisle had been the shooter. The district
court denied relief, finding that the state appellate court’s de-
cision was not contrary to or an unreasonable application of
Supreme Court precedent. The district court declined to issue
a certificate of appealability. We granted a certificate on the
Confrontation Clause claim, and we appointed counsel who
have ably represented Lisle.
II. Discussion
We explain first that the state courts did not apply Su-
preme Court precedent unreasonably in rejecting Lisle’s Con-
frontation Clause claim. We conclude by addressing a proce-
dural issue regarding Lisle’s exhaustion of state court reme-
dies.
A. The Confrontation Clause Claim
Under the Antiterrorism and Effective Death Penalty Act,
“An application for a writ of habeas corpus on behalf of a per-
son 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 adjudica-
tion of the claim—(1) resulted in a decision that was contrary
to, or involved an unreasonable application of, clearly estab-
lished Federal law, as determined by the Supreme Court of
No. 14-3047 5
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. § 2254(d). We review de novo the district court’s legal
conclusions. Jones v. Basinger, 635 F.3d 1030, 1040 (7th Cir.
2011).
The Confrontation Clause of the Sixth Amendment pro-
vides: “In all criminal prosecutions, the accused shall enjoy
the right … to be confronted with the witnesses against him.”
Fitting that right together with exceptions to the general pro-
hibition on hearsay has long provided work for the nation’s
courts. Since 2004, that debate has been defined by the Su-
preme Court’s decision in Crawford v. Washington, 541 U.S. 36(2004), and cases following it. Lisle contends that Hearn’s an-
swer to his aunt’s question was “testimonial” hearsay under
Crawford so that its admission violated his Confrontation
Clause rights.
In Crawford, the issue was whether the Confrontation
Clause was violated by admitting as evidence the recorded
statement a wife gave to a police officer about her husband’s
participation in a fight. Id. at 38–41. The Court found a consti-
tutional violation and drew a critical but undefined line be-
tween “testimonial” and “nontestimonial” hearsay. 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,
6 No. 14-3047
the Sixth Amendment demands what the com-
mon law required: unavailability and a prior
opportunity for cross-examination.
541 U.S. at 68, citing Ohio v. Roberts, 448 U.S. 56 (1980). The
Court left “for another day any effort to spell out a compre-
hensive definition of ‘testimonial.’” Id. The Court said the
term applies “at a minimum to prior testimony at a prelimi-
nary hearing, before a grand jury, or at a former trial; and to
police interrogations.” Id. The wife’s recorded statement was
part of a police interrogation, so it was testimonial and its ad-
mission violated the Confrontation Clause. See id. at 65–69.
In 2006, before the state courts rejected Lisle’s claim, the
Court addressed in more detail when a hearsay statement is
“testimonial” in Davis v. Washington:
Statements are nontestimonial when made in
the course of police interrogation under circum-
stances objectively indicating that the primary
purpose of the interrogation is to enable police
assistance to meet an ongoing emergency. They
are testimonial when the circumstances objec-
tively indicate that there is no such ongoing
emergency, and that the primary purpose of the
interrogation is to establish or prove past events
potentially relevant to later criminal prosecu-
tion.
547 U.S. 813, 822 (2006). The Davis opinion actually decided
two cases, Davis itself and Hammon v. Indiana, No. 05-5705,
and the different outcomes in the two cases helped sharpen
the difference between testimonial and non-testimonial hear-
say. In Davis itself, the victim of domestic violence acts called
No. 14-3047 7
911 and said that a former boyfriend was “jumpin’ on me
again.” Id. at 817. During the call, the woman said that her
attacker had just run out the door. Davis was charged with a
felony violation of a domestic no-contact order. At trial, the
woman did not testify. Over Davis’s objection based on the
Confrontation Clause, the recording of the woman’s 911 call
was played for the jury.
In Hammon v. Indiana, No. 05-5705, police arrived at a
home to respond to a “reported domestic disturbance.” Davis,
547 U.S. at 819 (quotation marks omitted). When the police
asked the woman sitting outside what was going on, she orig-
inally said that “nothing was the matter.” After an officer
talked with her further, she explained that she had been in a
physical altercation with her husband, Hammon. The State
charged Hammon with domestic battery and with violating
his probation. The State subpoenaed the woman, but she did
not appear for the bench trial. Instead the officer who had
questioned the woman testified about what she told him and
authenticated her affidavit. Hammon objected on Confronta-
tion Clause grounds. The trial court admitted the affidavit as
a “present sense impression” and the woman’s statements as
“excited utterances” that “are expressly permitted in these
kinds of cases even if the declarant is not available to testify.”
Hammon was found guilty on both charges. Id. at 821.
The Supreme Court affirmed Davis’s conviction but re-
versed Hammon’s. The Court explained that the statements to
police in Davis were nontestimonial because they were made
as the events were happening, rather than describing past
events. 547 U.S. at 827. By contrast, the statements to police in
Hammon were more similar to the statements in Crawford,
8 No. 14-3047
made “hours after the events” described, rendering them tes-
timonial. Id. at 827, 829. The Court said that the interrogation
in Hammon was part of the investigation into possible criminal
past conduct and there was no emergency in progress. Id. at
829. The responding officer was seeking to determine “what
happened,” not “what is happening.” Id. at 830.
Crawford, Davis, and Hammon all involved statements
made to law enforcement. At the time of the last state court
decision in this case in 2007, and even up until now, the Su-
preme Court has not yet applied Crawford to statements made
to people who are not law enforcement officers. The Court
also has declined to adopt a “categorical rule excluding …
from the Sixth Amendment’s reach” statements made to indi-
viduals who are not law enforcement officers, see Ohio v.
Clark, 576 U.S. —,—,135 S. Ct. 2173, 2180—81 (2015), citing Da-
vis, 547 U.S. at 823 n.2, so that question remains open in Su-
preme Court jurisprudence.
Our inquiry under 28 U.S.C. § 2254(d)(1) is whether the
state court’s rejection of Lisle’s Confrontation Clause claim
was an “unreasonable application” of controlling Supreme
Court precedent in 2007, meaning that it was “so lacking in
justification that there was an error well understood and com-
prehended in existing law beyond any possibility for fair-
minded disagreement.” See Harrington v. Richter, 562 U.S. 86,
103 (2011). Lisle cannot satisfy this demanding standard.
Apart from the problem that the Supreme Court had not
held in 2007 that a statement to someone other than a law en-
forcement officer can be testimonial under Crawford, the state-
ment falls at best in between the two statements in Davis and
Hammond. Under those circumstances, we cannot say that the
No. 14-3047 9
state court’s decision was an unreasonable application of
those precedents.
The state appellate court found that Hearn’s out-of-court
accusation was non-testimonial under Crawford. The state
court reasoned that Hearn, like the victim in Davis, “was also
in dire need of medical attention. Had Hearn made the exact
same statement to a 911 operator, Davis would mandate that
we find the statement non-testimonial in nature.” 877 N.E.2d
119, 131–32 (Ill. App. 2007). The state court also applied the
“objective circumstances” test that the Illinois Supreme Court
had adopted in People v. Stechly, 870 N.E.2d 333 (Ill. 2007).
In Stechly, the Illinois Supreme Court said that “the Court
clearly stated that the proper inquiry is what ‘the circum-
stances objectively indicate’ the purpose of the interrogation
to be.” 870 N.E.2d at 361, quoting Davis, 547 U.S. at 822. The
court continued:
There is no reason to believe that the applicabil-
ity of the confrontation clause would depend on
objective manifestations of intent when the
statement is the product of police interrogation,
but would depend on actual subjective intent
outside of this context. Accordingly, in our view,
the proper question is not whether the declarant
actually did intend or foresee that his statement
would be used in prosecution. Rather, the ques-
tion is whether the objective circumstances indi-
cate that a reasonable person in the declarant’s
position would have anticipated that his state-
ment likely would be used in prosecution.
870 N.E.2d at 361.
10 No. 14-3047
Following this test, the appellate court said in Lisle’s case:
a reasonable person shot five times who has just
made his way to his aunt’s house and who has
not received protection from his assailant or
medical attention would not have anticipated
that the statement to his aunt would be used in
prosecution. He would, undoubtedly, have an-
ticipated that identifying his assailant to his
aunt would allow his aunt to take precautionary
measures should the assailant also arrive at her
residence. Therefore, Hearn’s statement to Lee
was nontestimonial in nature.
877 N.E.2d at 132.
Lisle argues that Lee’s questions to the wounded Hearn
were like the police questions to the battered wife in Hammon:
questions seeking information about past events for use in a
future prosecution. No reasonable speaker or questioner, he
says, could think that knowing the identity of the shooter
would help medical personnel in treating Hearn. In Lisle’s
view, no objective evidence indicated that Hearn’s statement
to Lee was for the purpose of resolving an emergency. Instead,
Lee wanted the information only to bring justice in the event
Hearn did not survive the shooting.
There is room for fair argument on these points, but Lisle
has not shown that the state court decision was an unreason-
able application of Supreme Court precedent, in 2007 or even
today. In light of Davis and factual differences between this
case and Hammon, it was not unreasonable for the state court
to find that Hearn’s statement to Lee was part of an effort to
No. 14-3047 11
deal with an ongoing emergency and thus was nontestimo-
nial. Hearn arrived at Lee’s home about 4:00 a.m. She had no
idea what provoked the shooting or whether the person who
shot Hearn was looking for him to ensure that he was mor-
tally wounded. Recall that Hearn referred to Roy, Steve, and
Korey by only their first names, implying that Lee knew them.
With the information on who had done the shooting, Lee
could flee immediately if she saw them coming. The state
courts could reasonably treat the emergency as continuing.
Emergency responders had not yet arrived.
The fact that Lee had called emergency personnel before
she began asking Hearn questions does not change the result.
The state courts could reasonably think that Lee or a reasona-
ble person in her situation would have been concerned about
the shooter following Hearn and arriving at her house before
emergency responders arrived. Hearn’s statement to his aunt
is similar to the 911 call in Davis. The woman in Davis was
describing events as they were still happening. So was Hearn,
reporting events from a few minutes earlier, so recent that
they could reasonably be considered ongoing.
Federal habeas law does not require state courts to predict
what the Supreme Court will do in future cases, but we must
note that the state courts here correctly anticipated the Su-
preme Court’s holding in Michigan v. Bryant, 562 U.S. 344(2011). In Bryant, the Court held that a statement to police of-
ficers in a “nondomestic dispute, involving a victim found in
a public location, suffering from a fatal gunshot wound, and
a perpetrator whose location was unknown at the time the po-
lice located the victim” was not testimonial. Id. at 359, 377–78.
The Court adopted an objective test: “To determine whether
the ‘primary purpose’ of an interrogation is ‘to enable police
12 No. 14-3047
assistance to meet an ongoing emergency,’ Davis, 547 U.S. at
822, which would render the resulting statements nontesti-
monial, we objectively evaluate the circumstances in which the
encounter occurs and the statements and actions of the par-
ties.” 562 U.S. at 359 (emphasis added).
Bryant explained that the “existence of an ongoing emer-
gency is relevant to determining the primary purpose of the
interrogation because an emergency focuses the participants
on something other than ‘proving past events potentially rel-
evant to later criminal prosecution.’” Id. at 361, quoting Davis,
547 U.S. at 822 (brackets and footnote omitted). Whether “an
emergency exists and is ongoing is a highly context-depend-
ent inquiry.” Id. at 363. The Court said that “the statements
and actions of both the declarant and interrogators provide
objective evidence of the primary purpose of the interroga-
tion.” Id. at 367. Therefore,
when a court must determine whether the Con-
frontation Clause bars the admission of a state-
ment at trial, it should determine the ‘primary
purpose of the interrogation’ by objectively
evaluating the statements and actions of the
parties to the encounter, in light of the circum-
stances in which the interrogation occurs. The
existence of an emergency or the parties’ per-
ception that an emergency is ongoing is among
the most important circumstances that courts
must take into account in determining whether
an interrogation is testimonial because state-
ments made to assist police in addressing an on-
No. 14-3047 13
going emergency presumably lack the testimo-
nial purpose that would subject them to the re-
quirement of confrontation.
Id. at 370 (footnote omitted).
Because the state court’s rejection of Lisle’s Confrontation
Clause claim was not contrary to or an unreasonable applica-
tion of Supreme Court precedent in 2007, the district court
correctly denied federal habeas relief. See 28 U.S.C. §
2254(d)(1). Hearn made his statement to someone other than
a law-enforcement officer, while he was still waiting for an
ambulance, bleeding from five through-and-through shots,
just eighteen minutes after the shootings. Under an objective
circumstances inquiry, it does not matter whether Lee or
Hearn thought he was going to survive. The admitted hearsay
was non-testimonial and its admission did not violate the
Confrontation Clause.
B. Exhaustion of State Remedies
Before concluding, we must address a procedural issue. A
federal habeas corpus petitioner is required to exhaust his
available state remedies before seeking federal relief. 28
U.S.C. § 2254(b)(1)(A). Federal courts must often wrestle with
problems posed by so-called “mixed” petitions, which com-
bine exhausted and unexhausted claims. See, e.g., Rhines v.
Weber, 544 U.S. 269 (2005); Rose v. Lundy, 455 U.S. 509 (1982)
(imposing “total exhaustion” requirement).
At the time of oral argument in this appeal, Lisle still had
two post-conviction matters pending in state courts, though
neither involved his Confrontation Clause claim. We re-
quested supplemental briefing on whether Lisle had ex-
14 No. 14-3047
hausted all available state court remedies concerning his fed-
eral habeas petition, which included claims other than the
Confrontation Clause claim in the district court. Both sides
agreed that Lisle’s pending state petitions do not render his
federal habeas petition a mixed petition that would preclude
our review. We explain briefly our agreement.
When Lisle filed his federal habeas petition in 2013, he had
exhausted state remedies on his Confrontation Clause claim,
having raised it in his direct appeal and his petition for leave
to appeal to the state supreme court. However, the presence
of even one unexhausted claim in a federal petition can pre-
vent a federal court from reviewing the petition, even as to
exhausted claims. See Rhines, 544 U.S. at 275; Rose, 455 U.S. at
522. When Lisle filed his federal habeas petition, he had two
collateral review proceedings still pending in state courts,
which raised the prospect that his federal petition might have
combined exhausted and unexhausted claims.
The two pending proceedings are a motion for leave to file
a successive post-conviction petition, and an appeal from the
denial of a motion for relief from judgment. The parties’ sup-
plemental briefs have provided the details on those pending
matters, and we agree that they do not overlap with any of the
claims in Lisle’s federal petition. The successive petition he is
seeking leave to file does not present any federal claim that
overlaps with his 2013 federal habeas petition. The other
pending state court matter was a petition for relief from judg-
ment pursuant to 735 ILCS 5/2-1401. The petition raised three
claims that also do not overlap at all with the federal claims
in Lisle’s federal petition. Accordingly, our concerns about a
possible mixed petition have been resolved. The Confronta-
No. 14-3047 15
tion Clause question for which we granted a certificate of ap-
pealability was properly before the district court and is
properly before us.
The judgment of the district court denying Lisle’s petition
for a writ of habeas corpus is AFFIRMED.