Hardy v. Cross

Cite as: 565 U. S. ____ (2011) 1
Per Curiam
SUPREME COURT OF THE UNITED STATES
MARCUS HARDY, WARDEN v. IRVING L. CROSS
ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED
STATES COURT OF APPEALS FOR THE SEVENTH CIRCUIT
No. 11–74. Decided December 12, 2011
PER CURIAM.
The Antiterrorism and Effective Death Penalty Act of
1996 (AEDPA), 28 U. S. C. §2254, “imposes a highly def-
erential standard for evaluating state-court rulings and
demands that state-court decisions be given the benefit of
the doubt.” Felkner v. Jackson, 562 U. S. ___, ___ (2011)
(per curiam) (slip op., at 4) (internal quotation marks
omitted). In this case, the Court of Appeals departed
from this standard, and we therefore grant certiorari and
reverse.
Irving Cross was tried for kidnaping and sexually as-
saulting A. S. at knifepoint. Cross claimed that A. S. had
consented to sex in exchange for money and drugs. De-
spite her avowed fear of taking the stand, A. S. testified as
the State’s primary witness at Cross’ trial in November
1999 and was cross-examined by Cross’ attorney. Accord-
ing to the trial judge, A. S.’s testimony was halting. The
jury found Cross not guilty of kidnaping but was unable to
reach a verdict on the sexual assault charges, and the trial
judge declared a mistrial. The State decided to retry
Cross on those counts, and the retrial was scheduled for
March 29, 2000.
On March 20, 2000, the prosecutor informed the trial
judge that A. S. could not be located. A week later, on
March 28, the State moved to have A. S. declared unavail-
able and to introduce her prior testimony at the second
trial.
The State represented that A. S. had said after the first
trial that she was willing to testify at the retrial. The
2 HARDY v. CROSS
Per Curiam
State said that it had remained in “constant contact” with
A. S. and her mother and that “[e]very indication” had
been that A. S., “though extremely frightened, would be
willing to again come to court and testify.” Record, Exh. J,
p. 111 (hereinafter Exh. J). On March 3, however, A. S.’s
mother and brother told the State’s investigator that they
did not know where she was, and A. S.’s mother reported
that A. S. was “very fearful and very concerned” about
testifying again. Record, Exh. K, p. E–9 (hereinafter Exh.
K); id., at E–14. On March 9 or 10, the investigator inter-
viewed A. S.’s father, who also had “no idea where [A. S.]
was.” Id., at E–12. The father’s only suggestion was to
refer the investigator back to the mother.
On March 10, the State learned from A. S.’s mother that
A. S. had run away from home the day before and had not
returned.* Exh. J, at 111. Thereafter, “efforts began by
members of the Cook County State’s Attorney’s Office and
by law enforcement personnel to locate” A. S. Id., at 112.
The State averred that its efforts included the following:
“Constant personal visits to the home of [A. S.] and
her mother, at all hours of the day and night. This
is where the victim has lived since the sexual assault
occurred.
“Personal visits to the home of [A. S.’s] father. This
is where the victim lived when the sexual assault
occurred.
“Personal conversations, in English and in Spanish,
with the victim’s mother, father, and other family
members.
——————
* The State’s motion does not mention the investigator’s March 3 visit
with A. S.’s mother and brother, and the record in this case does not
make entirely clear when A. S. disappeared and when the State’s
attorney actually became aware of this fact. In any event, the parties
do not dispute the facts in this case regarding the State’s efforts to
locate A. S. See App. to Pet. for Cert. 17a.
Cite as: 565 U. S. ____ (2011) 3
Per Curiam
“Telephone calls, in English and in Spanish, to the vic-
tim’s mother, father, and other family members.
“Checks at the Office of the Medical Examiner of Cook
County.
“Checks at local hospitals.
“Checks at the Cook County Department of Correc-
tions.
“Check at the victim’s school.
“Check with the family of an old boyfriend of the
victim.
“Check with the Illinois Secretary of State’s Office.
“[Department of] Public [A]id check.” Id., at 112–113.
The State also inquired at the Department of Public
Health, the morgue, the Cook County Jail, the Illinois
Department of Corrections, the Immigration Department,
and the post office. See Exh. K, at E–14 to E–17, E–21;
App. to Pet. for Cert. 18a. The State’s investigator was
assisted in the search by a police detective and a victim’s
advocate. The detective visited A. S.’s father’s home once
and went to A. S.’s mother’s home—A. S.’s last-known
residence—on numerous occasions, approximately once
every three days, at different hours of the day and night.
Exh. K, at E27 to E29, E35. On one visit, A. S.’s moth-
er told the victim’s advocate that A. S. could be staying
with an ex-boyfriend in Waukegan, Illinois, 40 miles away.
Id., at E42 to E43. The police detective visited the
Waukegan address but was informed by the ex-boyfriend’s
mother that she had not seen A. S. in several months and
that A. S. was not staying with her or her son. Id., at
E33 to E34. The efforts to find A. S. continued until
March 28, the day of the hearing on the State’s motion.
Id., at E30.
4 HARDY v. CROSS
Per Curiam
On a final visit to A. S.’s mother on the morning of
March 28, the mother informed the police detective that
A. S. had called approximately two weeks earlier and had
said that she did not want to testify and would not return
to Chicago. See id., at E–30; 632 F. 3d 356, 359 (CA7
2011). A. S.’s mother told the detective that she still did
not know where A. S. was or how to contact her. Exh. K,
at E30.
The trial court granted the State’s motion and admitted
A. S.’s earlier testimony. The trial court concluded that
the State had “expended efforts that go way beyond due
diligence,” id., at E–65, and that A. S. “ha[d] made it
impossible for anybody to find where she is . . . in spite of
what I think are superhuman efforts to locate [her],” id.,at E–67. At Cross’ retrial, a legal intern from the State’s
attorney’s office read A. S.’s prior, cross-examined testi-
mony to the jury. According to the opinion below, the
clerk’s reading of the prior testimony did not include the
long pauses that occurred at the first trial, and the clerk
read the transcript with a slight inflection. See 632 F. 3d,
at 359. The jury acquitted Cross of aggravated sexual
assault but found him guilty of two counts of criminal
sexual assault.
On appeal, the Illinois Court of Appeals agreed that
A. S. was unavailable because “[i]t is clear from her tele-
phone conversation with her mother that she was not in
the city” and “also evident that she was in hiding and did
not want to be located.” Id., at 83a. The court found that
the State had conducted a good-faith, diligent search to
locate A. S., and that the trial court had properly allowed
the introduction of A. S.’s cross-examined testimony from
the first trial. The court, therefore, affirmed Cross’ convic-
tions and sentence. The Supreme Court of Illinois denied
Cross’ petition for leave to appeal, and we denied Cross’
petition for a writ of certiorari.
Cross then filed a petition for a writ of habeas corpus
Cite as: 565 U. S. ____ (2011) 5
Per Curiam
under 28 U. S. C. §2254 in the United States District
Court for the Northern District of Illinois. Cross argued,
among other things, that the state court had unreason-
ably applied clearly established Supreme Court prece-
dents holding that the Confrontation Clause of the Sixth
Amendment precludes the admission of the prior testimo-
ny of an allegedly unavailable witness unless the prosecu-
tion made a good-faith effort to obtain the declarant’s
presence at trial. The District Court denied Cross’ peti-
tion, but the Seventh Circuit reversed. According to the
Seventh Circuit, the Illinois Court of Appeals was unrea-
sonable in holding that the State had made a sufficient
effort to secure A. S.’s presence at the retrial. The Sev-
enth Circuit stressed the importance of A. S.’s testimony
and the manner of her testimony at the first trial.
In Barber v. Page, 390 U. S. 719 (1968), we held that “a
witness is not ‘unavailable’ for purposes of the . . . confron-
tation requirement unless the prosecutorial authorities
have made a good-faith effort to obtain his presence at
trial.” Id., at 724–725. In Barber, we held that a witness
had not been unavailable for Confrontation Clause pur-
poses because the State, which could have brought the
witness to court by seeking a writ of habeas corpus ad
testificandum, had “made absolutely no effort to obtain
[his] presence . . . at trial” apart from determining that he
was serving a sentence in a federal prison. Id., at 723; see
also id., at 725.
We again addressed the question of witness unavailabil-
ity in Ohio v. Roberts, 448 U. S. 56 (1980). In that case,
we held, the State had discharged its “duty of good-faith
effort.” Id., at 75. We noted that the prosecutor had
spoken to the witness’ mother, who reported that she had
no knowledge of her daughter’s whereabouts and “knew of
no way to reach [her] even in an emergency.” Ibid. We
also noted that the State had served five subpoenas in the
witness’ name to her parents’ residence over a 4-month
6 HARDY v. CROSS
Per Curiam
period prior to the trial. “ ‘The lengths to which the prose-
cution must go to produce a witness,’ ” the Court made
clear, “ ‘is a question of reasonableness.’ ” Id., at 74 (quot-
ing California v. Green, 399 U. S. 149, 189, n. 22 (1970)
(Harlan, J., concurring)). We acknowledged that there
were some additional steps that the prosecutor might have
taken in an effort to find the witness, but we observed that
“[o]ne, in hindsight, may always think of other things.”
448 U. S., at 75. But “the great improbability that such
efforts would have resulted in locating the witness, and
would have led to her production at trial, neutralizes any
intimation that a concept of reasonableness required their
execution.” Id., at 76.
In the present case, the holding of the Illinois Court of
Appeals that the State conducted the requisite good-faith
search for A. S. did not represent an unreasonable appli-
cation of our Confrontation Clause precedents. Whether
or not the state court went too far in characterizing the
prosecution’s efforts as “superhuman,” the state court
identified the correct Sixth Amendment standard and
applied it in a reasonable manner.
The Seventh Circuit found that the State’s efforts were
inadequate for three main reasons. First, the Seventh
Circuit faulted the State for failing to contact “A. S.’s
current boyfriend—whom she was with just moments
before the alleged assault—or any of her other friends in
the Chicago area.” 632 F. 3d, at 362. But the record does
not show that any of A. S.’s family members or any other
persons interviewed by the State provided any reason to
believe that any of these individuals had information
about A. S.’s whereabouts.
Second, the Seventh Circuit criticized the State because
it did not make inquiries at the cosmetology school where
A. S. had once been enrolled, ibid., but the court’s own
opinion observed that the information about A. S.’s en-
rollment at the cosmetology school after the mistrial was
Cite as: 565 U. S. ____ (2011) 7
Per Curiam
not “noteworthy” or “particularly helpful.” Ibid. Since
A. S. had not attended the school for some time, Exh. K, at
E–42, there is no reason to believe that anyone at the
school had better information about A. S.’s location than
did the members of her family.
Finally, the Seventh Circuit found that the State’s
efforts were insufficient because it had neglected to serve
her with a subpoena after she expressed fear about testify-
ing at the retrial. A. S., however, had expressed fear
about testifying at the first trial but had nevertheless
appeared in court and had taken the stand. The State
represented that A. S., although fearful, had agreed to
testify at the retrial as well. 632 F. 3d, at 362. We have
never held that the prosecution must have issued a sub-
poena if it wishes to prove that a witness who goes into
hiding is unavailable for Confrontation Clause purposes,
and the issuance of a subpoena may do little good if a
sexual assault witness is so fearful of an assailant that she
is willing to risk his acquittal by failing to testify at trial.
As we observed in Roberts, when a witness disappears
before trial, it is always possible to think of additional
steps that the prosecution might have taken to secure the
witness’ presence, see 448 U. S., at 75, but the Sixth
Amendment does not require the prosecution to exhaust
every avenue of inquiry, no matter how unpromising.
And, more to the point, the deferential standard of review
set out in 28 U. S. C. §2254(d) does not permit a federal
court to overturn a state court’s decision on the question of
unavailability merely because the federal court identifies
additional steps that might have been taken. Under
AEDPA, if the state-court decision was reasonable, it
cannot be disturbed.
The petition for a writ of certiorari and Cross’ motion to
proceed in forma pauperis are granted, and the judgment
of the Court of Appeals for the Seventh Circuit is
Reversed.