Opinion
Civil Action No. 4:04-CV-0397-Y.
August 12, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Jeremy Ricketts, TDCJ-ID #1037421, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, in Kenedy, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. FACTUAL AND PROCEDURAL HISTORY
On April 6, 2001, in the 371st District Court of Tarrant County, Texas, a jury found Ricketts guilty of murdering William Martin Klozik. (Trial Court Clerk's R. at 58.) The next day, the jury assessed his punishment at fifty years' imprisonment. ( Id. at 85, 92.) The Second District Court of Appeals of Texas affirmed the trial court's judgment in a published opinion on October 30, 2002. Ricketts v. Texas, 39 S.W.3d 312 (Tex.App.-Fort Worth 2002) (op. on PDR). In turn, the Texas Court of Criminal Appeals refused Ricketts's petition for discretionary review on June 11, 2003. Ricketts v. Texas, PDR. No. 1422-02. Ricketts filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on May 18, 2004.The factual background of the case as set forth by the Second District Court of Appeals is as follows:
On or about the early morning hours of August 10, 1999, the body of William Martin Klozik ("Marty") was discovered by Gerard Barwinkel, a courier at a twenty-four hour delivery service, in a field at Loop 820 and Trinity Boulevard in Fort Worth, Texas. Marty had died a few hours earlier as a result of a gunshot to the back of his head. Four days after his death, Marty's sister, Tammie Fleming, and her family visited the death scene after Marty's funeral and found a small shaving kit bag containing methamphetamine. Tammie called the police and informed them of her discovery. The police linked the bag and methamphetamine to Jason Truver.
Jason Truver, Shad Hocutt, and [Ricketts] were friends. The night of Marty death, Jason's fiance, Jacqualine Smalley, was at home with Jason when Marty came to visit. While Jacqualine was bathing, Jason knocked on the bathroom door and told her Marty had stolen his bag of methamphetamine. Jason called [Ricketts] at his house, told him about the situation, and left his apartment with Jacqualine. When Jason and Jacqualine arrived at [Ricketts's] home, Jason met outside with [Ricketts] and Shad, who was already at [Ricketts's] home, while Jacqualine went into the house and stayed with [Ricketts's] girlfriend, Shanon Slape.
While outside discussing what they should do about the situation, Jason, Shade, and [Ricketts] decided to go to the store and purchase beer. In route to the store, Marty called [Ricketts] on his mobile phone and the two agreed to meet to exchange the methamphetamine for $2,500. . . .
Jason, Shad, and [Ricketts] arrived at the meeting place early. When they arrived, Jason let Shad and [Ricketts] out of the car and told them to hide. Jason drove away and returned to the meeting place at the same time as Marty. When Marty arrived, he got out of his car and went to the his car's trunk. [Ricketts] walked out of the darkness and called Marty's name. Marty ran away from his car and was tackled by Shad in a nearby ditch. Shad, realizing Marty did not have a gun, got up and heard someone yelling for him "to move, to look out." Shad ran towards Jason's car and heard a gunshot, and as he reached Jason's car, he heard another gunshot. Jason and [Ricketts] returned to Jason's car and drove to [Ricketts's] home. During the ride back to [Ricketts's] home, Jason asked [Ricketts] if Marty was "getting back up," [Ricketts] replied, "No, I don't think so."Ricketts, 39 S.W.3d at 315-16.
D. ISSUES
In his petition, Ricketts raises one ground alleging that the trial court committed reversible error by overruling his objection to the admission of the excited utterances of his codefendant Jason Truver in violation of his confrontation clause rights. (Petition at 7.)
E. RULE 5 STATEMENT
Although Dretke does not address the issue of exhaustion, it appears that Ricketts has exhausted available state court remedies as required by 28 U.S.C. § 2254(b) and (c) by raising his claim in his petition for discretionary review.
F. DISCUSSION 1. Legal Standard for Granting Habeas Corpus Relief
Under 28 U.S.C. § 2254(d), 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 he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, 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. 28 U.S.C. § 2254(d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court of the United States on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). A state court decision will be an unreasonable application of clearly established federal law if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
2. EXCITED UTTERANCES
Ricketts's claim pertains to the testimony by Jacqueline Smalley regarding statements made to her by Jason Truver, who invoked his Fifth Amendment right not to testify at Ricketts's trial. (5 Rep. R. at 57.) Over Ricketts's objection —
Jacqualine testified that Jason, Shad, and [Ricketts] left her and Shanon at [Ricketts's] house for about two hours. When they returned from meeting Marty, Shad left, and Jason and [Ricketts] went out to the scene again. Before Jason and [Ricketts] left to revisit Marty's death scene, Jason approached Jacqualine to have a conversation. During this conversation, Jacqualine noticed that Jason was "really upset." She described Jason's demeanor as "[d]evastated, nervous." She agreed his demeanor stemmed from something Jason was still upset about and had just happened. Jacqualine testified that Jason said to her, "Marty's gone."
When Jason and [Ricketts] returned from their second trip to the meeting place, nearly two hours later, Jacqualine and Jason drove home. When they arrived home, Jacqualine asked Jason what happened. Jason "got . . . excited" and told Jacqualine how he arrived at the meeting place and let [Ricketts] and Shad out of his car to hide. Jason then left and came back. When Marty and Jason arrived at the same time, Marty got out of his car with a beer in his hand and asked Jason if he had the $2,500. Jason said he had the money and asked Marty if he had the stuff. Marty said he had the stuff and then went to the trunk of his car. While at his trunk, [Ricketts] said, "Marty," which "spooked' him," and Marty ran. Jason told Jacqueline how Shad tackled Marty and then Jason said, "Jeremy shot Marty."Id. at 320 (emphasis added).
Ricketts appears to concede that Jason's out-of-court statement "Marty's gone," the so-called "first excited utterance," was properly admitted under the state's excited utterance exception. (Pet'r Memorandum of Law at 4-8.) See TEX. R. EVID. 803(2). He contends, however, that admission of Jason's out-of-court statement "Jeremy shot Marty," the "second excited utterance," violated his rights under the Sixth Amendment's confrontation clause. The Second District Court of Appeals concluded that the trial court properly admitted the testimony as an excited utterance. Id. at 319-20. Further, the state court determined that Ricketts was not denied his right of confrontation by the admission of the testimony because the testimony had sufficient guarantees of trustworthiness. Id. at 320-24.
The Sixth Amendment, made applicable to the states through the Fourteenth Amendment, provides that "[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him. . . ." U.S. CONST. amend. VI.
A criminal defendant's right to confront the witnesses against him is not violated by the introduction of hearsay testimony where either the hearsay statement falls within a firmly rooted hearsay exception, or where it is supported by a showing of particularized guarantees of trustworthiness. Lilly v. Virginia, 527 U.S. 116, 124-25 (1999) (quoting Ohio v. Roberts, 448 U.S. 56, 66 (1980)); Idaho v. Wright, 497 U.S. 805, 816-17 (1990). The exception for excited utterances is a firmly rooted hearsay exception. White v. Illinois, 502 U.S. 346, 355-56 n. 8 (1992); Bourjaily v. United States, 483 U.S. 182-84 (1987). Consequently, the admission of hearsay statements that fall within the excited utterance exception to the hearsay rule does not violate the Confrontation Clause. See United States v. Daniels, 19 F.3d 110, 119 (3rd Cir. 1994); United States v. Vasquez, 857 F.2d 857, 864-65 (1st Cir. 1988). Deferring to the state courts' determination that the testimony in question was, as a matter of state law, admissible under the excited utterance exception to the hearsay rule, Ricketts's claim must therefore fail.
The court is cognizant of the recent decision in Crawford v. Washington, 124 S. Ct. 1354 (2003), in which the Supreme Court abrogated this rule where "testimonial" hearsay is involved, unless the witness is unavailable and the defendant had a prior opportunity to cross-examine the witness. Ricketts has not, however, alleged or demonstrated that Crawford applies to his case. See, e.g., Evans v. Luebbers, 371 F.3d 438, 444-45 (8th Cir. 2004) (holding "nontestimonial" hearsay is outside Crawford's scope); Horton v. Allen, 370 F.3d 75, 83-84 (1st Cir. 2003) (same); Dorchy v. Jones, 329 F. Supp. 2d 564, 572-73 (E.D. Mich. 2004) (holding Crawford cannot be applied retroactively).
3. SUMMARY
In summary, Ricketts is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. It does not appear the state courts' adjudication of the claim was contrary to or involved an unreasonable application of clearly established federal law or was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
II. RECOMMENDATION
Ricketts's petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until September 3, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until September 3, 2004, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.