Opinion
Case No. 01-3342-DES
July 11, 2002
REPORT AND RECOMMENDATION
The court has referred this matter to the undersigned United States Magistrate Judge for a report and recommendation on a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Petitioner is a prisoner confined at the Topeka Correctional Facility.
PROCEDURAL HISTORY
On September 27, 1996, Petitioner was convicted of first degree felony murder in Kansas state court. (Rec. Vol. 16, p. 43). Petitioner's conviction was affirmed on direct appeal on July 10, 1998. State v. Carr, 963 P.2d 421 (Kan. 1998).
Petitioner then filed a motion for post conviction relief pursuant to K.S.A. § 60-1507. This motion was denied by the district court and this decision was affirmed by the Kansas Court of Appeals on February 23, 2001. Carr v. State, 18 P.3d 988 (Table) (Kan.Ct.App. 2001). The Kansas Supreme Court denied the petition for review on May 1, 2001. Carr v. State, Case No. 00-84576-AS, 2001 Kan. LEXIS 375 (Kan. 2001).
Petitioner commenced this action on August 15, 2001, claiming the following grounds for relief: (1) a single act of child abuse cannot serve as the underlying felony for felony murder, (2) instructional error regarding abuse of a child, (3) error in the introduction of hearsay, (4) error in the exclusion of hearsay, (5) failure to instruct on the lesser degrees of homicide, and (6) through (8) ineffective assistance of counsel. Respondent has filed an answer and return (Doc. 7) and petitioner has filed a traverse thereto (Doc. 13).
FACTUAL BACKGROUND
The facts surrounding petitioner's crime were summarized by the Kansas Supreme Court as follows:
At approximately 4:40 p.m. on September 7, 1995, the defendant brought Shayleen to the South Minor Emergency Center in Wichita. Shayleen was unresponsive, with a dilated left pupil, labored breathing, and bruises on the ear, neck, and elbow. The defendant told a nurse at the center that Shayleen was jumping on the bed and fell to the carpeted floor. Shayleen was taken to the trauma room and then transported to Wesley Medical Center (Wesley).
The CT scan of Shayleen's head revealed bleeding over the surface of the brain and a swelling of the brain which caused the left side of the brain to compress into the right side. Shayleen's brain continued to swell, and she died from her injuries 4 days after admission to the hospital.
In an interview with police, the defendant first stated that Shayleen had rolled out of bed and fallen. The defendant told police that Shayleen never wanted to take her afternoon nap, and at times the defendant would have to hold Shayleen's arms on the bed until Shayleen fell asleep. She also stated that the defendant needed the nap time to herself so that she could have peace and quiet. Later, the defendant admitted that she spanked Shayleen before Shayleen fell off the bed. The defendant stated to the police that Shayleen's brother, Jared, obeys the rules but Shayleen does not and as a result the defendant gets frustrated and irritated.
After admitting to spanking Shayleen four or five times, the defendant also admitted to shaking Shayleen four or five times and putting her back on the bed. She stated that she was trying to shake Shayleen hard enough to get her attention, and that she did not mean to spank Shayleen, but she just let her temper get out of control because Shayleen's conduct had been going on all week. The defendant stated that when she shook Shayleen, Shayleen's head bobbed back and forth.
A search of the defendant's residence uncovered a blood stained tissue in the bathroom trash can and a small child's t shirt, with bloodstains around the neck and shoulder area, on the washer. Investigators measured the distance between the top of Shayleen's bed and the carpeted floor and found it to be approximately 19 inches.
The State introduced testimony from various physicians as to the cause of Shayleen's death. Dr. Lindall Smith, a pediatric critical care physician at Wesley, testified that Shayleen had suffered a severe closed head injury and opined that a fall from a bed would not cause such a severe injury. He stated that comparable head injuries might be caused from being thrown headfirst through a car window or being ejected from a car in an accident.
Regarding the bruises on Shayleen, Dr. Smith testified that according to their color, they were of different ages. He noted that many of the bruises were in places which were not typical for bruises on toddlers. Dr. Smith stated that in his opinion, Shayleen's death was the result of shaken blunt trauma syndrome.
Dr. Marcus Nashelsky, a forensic pathologist who conducted the autopsy of Shayleen, testified that the girl had bruises on the back, including the left buttock, as well as bruises on both arms, thighs, and legs. Dr. Nashelsky also found bruises on the front and sides of the head, including a deep scalp bruise on the forehead, a large bruise on the back of the head near the top, and a bruise on the lower left back of the head, indicating multiple impacts. He further testified that Shayleen's brain was extremely swollen with bleeding in the space around the brain, indicating severe impact injuries to the head. The swelling of the brain reached the point that it had compressed the brain stem at the base of the brain.
Dr. Nashelsky also noted bleeding in the back of the eyes, which was particularly indicative of a shaking injury. He opined that Shayleen died of head injuries consisting of many blunt force injuries and shaking injuries to the head and stated that his autopsy findings were absolutely inconsistent with a fall from a 19-inch high bed.
The defendant presented the testimony of her expert, Dr. Michael Arnall, an Associate Medical Examiner for West Palm Beach, Florida. Dr. Arnall testified that Shayleen's death might have been caused by a previous subdural hematoma which began bleeding again in response to slight trauma, coupled with a bleeding disorder. He stated that a 19-inch fall could cause a subdural hematoma to rebleed, and further that any one of Shayleen's injuries could be consistent with a 19-inch fall. However, both Dr. Nashelsky and Dr. Katherine Melhorn, a pediatrician called by the State, testified that there was no sign that a subdural hematoma had rebled or that Shayleen had suffered from a bleeding disorder prior to the injury.
In rebuttal, the State called Dr. Leonard Klafta, a neurosurgeon who stated that there was far too little blood in the region where Shayleen had suffered a previous subdural hematoma to account for the brain swelling. The State also called Dr. Michael Varenhorst, an ophthalmologist, who stated that almost always retinal hemorrhaging in children such as that suffered by Shayleen is accompanied by head trauma and that normal head injuries do not cause retinal hemorrhages; instead, it takes significant force to do so.
During trial, a question arose concerning the admission of evidence regarding the defendant's prior discipline of Shayleen and Jared. After a hearing outside the presence of the jury, the trial court determined that such testimony would be admissible to show a continuing course of action between the parties. Some of the defendant's friends and fellow church members then testified that the defendant was often harsh with the children and reacted violently and inappropriately to what those testifying perceived to be minor incidents of misbehavior. These witnesses characterized the defendant as a person who was frustrated over the misbehavior of the children and the lack of parenting support she received from her husband.
There was also a heated controversy over whether Jared would be allowed to testify, or whether statements which he made to various persons after Shayleen's death could be admitted. After a thorough hearing on competency, the trial court decided that Jared was not competent to testify. However, the court found that certain statements Jared made would be admissible as exceptions to the rule against hearsay. As a result of this ruling, the State introduced statements made by Jared to Adella Ozor, a social worker with the Kansas Department of Social and Rehabilitation Services (SRS), and Jenny McCracken, a registered nurse in the pediatric intensive care unit at Wesley.
The defendant put on a variety of witnesses in her defense, including several former employees of SRS who testified regarding the steps taken to approve the defendant and her husband as foster and later adoptive parents of Shayleen and Jared. Once approved, the defendant and her husband became the foster parents of and eventually adopted Shayleen and Jared. The defendant's husband also testified as to the defendant's parenting skills and expressed his disbelief that the defendant could have hurt Shayleen.
Carr, 963 P.2d at 425-27.
STANDARD OF REVIEW
Because Ms. Carr's habeas petition was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), it is governed by the provisions of AEDPA. Wallace v. Ward, 191 F.3d 1235, 1240 (10th Cir. 1999), cert. denied, 530 U.S. 1216 (2000). Under AEDPA, petitioner will only be entitled to federal habeas relief if she can establish that state court review of her case "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d)(1). In Williams v. Taylor, 529 U.S. 362 (2000), the Supreme Court explained that a state court decision is "contrary to" clearly established federal law "if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts." Id. at 364-365. A state court decision is an unreasonable application of federal law "if the state court identifies the correct governing legal principle from this Court's decision but unreasonably applies that principle to the facts of the prisoner's case." Id. at 365.
GROUND ONE — CHILD ABUSE AS THE UNDERLYING FELONY FOR FELONY MURDER
Petitioner contends the state court erred in allowing the prosecution to proceed on the theory that a single act of child abuse can serve as the underlying felony for felony murder in the first degree. Petitioner presents this argument under three different theories: (1) the Kansas legislature did not intend for a single act of child abuse to constitute an underlying felony for felony murder, (2) the statute is unconstitutionally vague about the conduct prohibited, and (3) the jury instruction did not properly instruct the jury on the intent necessary to establish first degree murder. The Kansas Supreme Court resolved this claim as follows:
The defendant contends that a single act of child abuse merges into the homicide and cannot be used as an underlying felony. The defendant also argues that intent to commit the act of hitting or hurting in the commission of child abuse is insufficient to transfer the premeditation and intent required to establish first degree felony murder.
Our recent decision in the case of State v. Smallwood, 264 Kan. 69, 955 P.2d 1209 (1998), disposes of the defendant's first contention. We held that the legislature intended that one instance of abuse of a child could indeed be the underlying felony for a felony murder conviction. 264 Kan. at 94, 955 P.2d 1209.
The defendant argues that the basis for the crime of first degree felony murder is the theory that it relieves the State of the burden of proving the elements of premeditation and intent by transferring those elements from the underlying felony. According to the defendant, because abuse of a child is not a specific intent crime, it cannot supply the requisite premeditation and intent for a felony murder conviction.
In State v. Hupp, 248 Kan. 644, 651, 809 P.2d 1207 (1991), this court stated: "In felony murder, premeditation and intent are transferred from the underlying felony. . . ." Also, in State v. Clark, 204 Kan. 38, 44, 460 P.2d 586 (1969), we stated that the rationale behind felony murder is that the killer's malignant purpose is established by proof of the collateral felony. We have also held that abuse of a child is not a specific intent crime in that the intent to injure is not required, but instead simply the intent to hit and hurt. State v. Bruce, 255 Kan. 388, 392 393, 874 P.2d 1165 (1994); Hupp, 248 Kan. at 652-53, 809 P.2d 1207.
However, in arguing that abuse of a child is not a specific intent crime, the defendant ignores the fact that although it does not require some specific intent to injure, it does require a criminal intent — the intent to cruelly beat, intentionally torture, inflict cruel and inhuman corporal punishment on, or shake a child. See K.S.A. 21-3609. Thus, accidentally hitting a child is not abuse of a child. Moreover, while the felony murder doctrine is based on the transfer of criminal intent, there is no requirement that it be based on the transfer of any specific intent beyond the general criminal intent in K.S.A. 21-3201 required for all crimes in Kansas.
In State v. Thomas, 239 Kan. 457, 461 62, 720 P.2d 1059 (1986), we gave what is perhaps the best explanation of the felony murder rule:
"In felony murder cases, the elements of malice, deliberation and premeditation which are required for murder in the first degree are deemed to be supplied by felonious conduct alone if a homicide results. To support a conviction for felony murder, all that is required is to prove that a felony was being committed, which felony was inherently dangerous to human life, and that the homicide which followed was a direct result of the commission of that felony."
It matters not whether abuse of a child requires a specific intent to injure. We have never required that an intent to injure be an element for the underlying felony in a felony murder prosecution. All that is required is felonious conduct which is inherently dangerous to human life. Thus, the second part of the defendant's argument fails.
The defendant also suggests that K.S.A. 21-3609 is unconstitutionally vague. We held otherwise in Hupp, a fact which the defendant notes. See 248 Kan. at 656, 809 P.2d 1207. The defendant, however, contends that an amendment to the statute in the time since our decision in Hupp requires us to revisit this issue.
The statute at issue in Hupp defined child abuse as "willfully torturing, cruelly beating or inflicting cruel and inhuman corporal punishment upon any child under the age of 18 years." K.S.A. 21-3609 (Ensley 1988). Hupp complained that the terms "cruelly beating" and "inflicting cruel and inhuman corporal punishment" were unconstitutionally vague. 248 Kan. at 655, 809 P.2d 1207. We disagreed, stating that the phrase used provided reasonably definite standards which one reading the statute could understand and contemplate. 248 Kan. at 656, 809 P.2d 1207.
Effective July 1, 1995, the legislature amended 21-3609 by inserting the words "shaking which results in great bodily harm." See L. 1995, ch. 251, § 12. The defendant claims that this change makes the statute vague because it is not modified by a particular mental state. The opposite is true. The 1995 amendment makes the statute more definite in that it makes clear that the conduct proscribed is the intentional torturing, cruelly beating, or shaking of a child which results in great bodily harm. The fact that there is no modifier with regard to the word shaking does not make the term ambiguous. A reasonable person could easily understand that the criminal conduct involved is shaking which results in great bodily harm. Further, it is clear from the application of K.S.A. 21-3201 that the required mental state is that the shaking be intentional. We conclude that K.S.A. 21-3609 is not vague.
Carr, 963 P.2d at 427-28.
Petitioner's first theory, that the Kansas legislature did not intend a single act of child abuse to constitute an underlying felony for felony murder, is precluded by the Kansas Supreme Court's determination that the Kansas legislature did intend for the law to have that effect. See Mullaney v. Wilbur, 421 U.S. 684, 692 (1975) ("state courts are the ultimate expositors of state law"); see also Tillman v. Cook, 25 F. Supp.2d 1245, 1296 (D.Utah 1998) (noting that questions of legislative intent are "dependent on state law analysis rather than a fundamental aspect of federal constitutional law").
Petitioner next argues that the statute is unconstitutionally vague because "shaking which results in great bodily harm" does not refer to any particular mental state. The due process clause requires that an individual be given fair warning before they are held "criminally responsible for conduct which [they] could not reasonably understand to be proscribed." Rose v. Locke, 423 U.S. 48, 49 (1975), quoting United States v. Harriss, 347 U.S. 612, 617 (1954). To satisfy the fair warning requirement, a statute must (1) "define the criminal offense with sufficient definiteness that ordinary people can understand what conduct is prohibited" and (2) provide standards which do not "encourage arbitrary and discriminatory enforcement." Kolender v. Lawson, 461 U.S. 352, 357 (1983).
The fact that "shaking which results in great bodily harm" is not specifically modified within the same statute by a mental state does not render it unconstitutionally vague. See Lemaster v. Ohio, 119 F. Supp.2d 754, 773-775 (S.D.Ohio 2000) (holding that a statute was not unconstitutionally vague even though it contained no provision regarding the culpable mental state required). The statute very specifically specifies the physical conduct which is prohibited. In addition, K.S.A. § 21-3201 provides fair warning of the requisite mental state: "criminal intent is an essential element of every crime defined by this code. Criminal intent may be established by proof that the conduct of the accused person was intentional or reckless." It was not unreasonable for the Kansas Supreme Court to conclude that the statute was not unconstitutionally vague.
Finally, petitioner contends that the jury instructions did not properly instruct the jury on the intent necessary to establish first degree murder. A habeas corpus proceeding cannot be used to set aside a state conviction on the basis of instructional error "unless the errors had the effect of rendering the trial so fundamentally unfair as to cause a denial of a fair trial in the constitutional sense." Brinlee v. Crisp, 608 F.2d 839, 854 (10th Cir. 1979), cert. denied, 444 U.S. 1047 (1980). The effect of the instruction is to be viewed "in the context of the instructions as a whole and the trial record." Tillman v. Cook, 25 F. Supp.2d 1245, 1304 (D.Utah 1998), citing Cupp v. Naughten, 414 U.S. 141, 147 (1973).
The instructions provided the following:
To establish this charge, each of the following claims must be proved:
1. That the defendant killed Shayleen N. Carr;
2. That such killing was done in the commission of abuse of a child, a felony; and. . . .
The elements of abuse of a child are as follows:
• That the defendant intentionally cruelly beat, inflicted cruel and inhuman bodily punishment upon or shook Shayleen N. Carr, which resulted in great bodily harm to Shayleen N. Carr. . . .
The words "cruelly beat, inflicted cruel and inhuman bodily punishment upon or shook Shayleen N. Carr, which resulted in great bodily harm to Shayleen N. Carr" do not require an intent to injure. It is the act of hitting and hurting that is made a crime."
(Doc. 1, p. 30). Petitioner contends that because "shook" is not modified by any language regarding the required mental state, the instruction allows a conviction for simply "hitting and hurting" a child. However, another instruction specified that "the State must prove that her conduct in committing abuse of a child was intentional. Intentional means willful and purposeful and not accidental." Id. at p. 31. Although the better practice may have been to use the pattern instruction for abuse of a child, the instruction on intent clarified that the act of hitting and hurting must be done willfully and purposefully. When viewed in the context of the entire trial, it cannot be said that the complained of instruction rendered petitioner's trial fundamentally unfair. The Kansas Supreme Court decision on this matter was not an unreasonable application of federal constitutional law.
The pattern instruction for abuse of a child omits the language regarding the lack of a required intent to injure. (Doc. 1, p. 32).
GROUND 2 — INSTRUCTIONAL ERROR
As argued in ground one, petitioner reiterates in ground two that the instruction on the elements of abuse of a child violates due process by failing to require any finding of intent. As stated above, any confusion regarding the mental intent required for abuse of a child was clarified in the instruction on intent. Therefore, this instruction did not render petitioner's trial fundamentally unfair. The Kansas Supreme Court decision on this matter was not an unreasonable application of federal constitutional law.
GROUND 3 — ADMISSION OF HEARSAY STATEMENTS OF JARED CARR
In ground three, petitioner challenges the admission of statements made by her son to a social worker and a nurse concerning acts committed by her which may be construed as child abuse. Petitioner contends the testimony of the social worker and the nurse violated her right to confrontation and tainted the entire trial. Although petitioner raised this issue on direct appeal, the Kansas Supreme Court refused to review the merits of the claim, finding that petitioner had waived any error by failing to lodge a contemporaneous objection at trial. Carr, 963 P.2d at 431. Respondent contends that petitioner has procedurally defaulted this claim.
The procedural default doctrine precludes federal habeas review of a federal claim that a state court has declined to consider due to the petitioner's noncompliance with state procedural rules unless petitioner can show (1) both cause and prejudice or (2) manifest injustice. Coleman v. Thompson, 501 U.S. 722, 750 (1991). A procedural default, however, does not bar consideration of a federal claim on habeas review unless the state procedural rule is both independent and adequate. The state procedural rule is independent if the last state court that rendered a judgment in the case clearly and expressly stated that its decision rested upon a state procedural bar. Church v. Sullivan, 942 F.2d 1501, 1506 (10th Cir. 1991) (relying upon Harris v. Reed, 489 U.S. 255 (1989)). The state procedural bar is adequate if it is "strictly or regularly followed." Johnson v. Mississippi, 486 U.S. 578, 587 (1988); see also Messer v. Roberts, 74 F.3d 1009, 1015 (10th Cir. 1996).
In this case, the Kansas Supreme Court expressly refused to consider the merits of this issue because petitioner's trial counsel failed to lodge a contemporaneous objection. This rule has been routinely followed in Kansas state court. See Hunt v. Lee, 19 F. Supp.2d 1212, 1214-15 (D.Kan. 1998), citing State v. Bishop, 957 P.2d 369 (1998); State v. Peckham, 875 P.2d 257 (1994).
However, as cause for her procedural default, petitioner alleges her counsel was ineffective for failing to object to these statements at trial. Petitioner further contends that this failure prejudiced her because the issue was not properly preserved for direct appeal. Petitioner raised this claim of ineffective assistance of counsel in her post conviction motion pursuant to K.S.A. § 60-1507, but the district court held that the statements were admissible as a hearsay exception pursuant to K.S.A. § 60-460(d). Because ineffective assistance of counsel under the standard expressed in Strickland v. Washington, 466 U.S. 668 (1984), can constitute cause for procedural default, the court will examine whether counsel was deficient for failing to object to these statements. See Murray v. Carrier, 477 U.S. 478, 488 (1986). The Sixth Amendment guarantees the right of a criminal defendant to effective assistance of counsel. See generally Strickland, 466 U.S. at 685-86. To establish an ineffective assistance of counsel claim, petitioner must (1) "show that counsel's performance was deficient," and also (2) "that the deficient performance prejudiced [her] defense." Strickland, 466 U.S. at 687. In order to satisfy the first prong, petitioner must show that her counsel's conduct did not fall within the wide range of competence demanded of an attorney in a criminal case. See United States v. Carr, 80 F.3d 413, 417 (10th Cir. 1996). The second prong, often called the "prejudice prong," is met when the petitioner proves that there is a "reasonable probability that, but for the alleged errors, the result of the proceedings would have been different." See Strickland, 466 U.S. at 695 (defining reasonable probability as a probability that is sufficient to undermine the confidence in the outcome of the trial).
In addition to establishing the oft quoted two prong test, Strickland also established general guidelines for reviewing ineffective assistance claims. Judicial scrutiny of counsel's performance should be done in a "highly deferential" manner that "eliminate[s] the distorting effects of hindsight," and starts with the "strong presumption that counsel's conduct falls within the wide range of reasonable professional assistance." Strickland, 466 U.S. at 688-89; see also Moore v. United States, 950 F.2d 656, 660 (10th Cir. 1991).
The Kansas Supreme Court described the statements at issue as follows:
Four year old Jared Carr made statements to Adella Ozor, an SRS investigator, and Jenny McCracken, a registered nurse in the pediatric intensive care unit of Wesley. The defendant contends that the trial court's admission of these statements was error.
Ozor interviewed Jared at his emergency foster home on September 8, 1995, at approximately 2 p.m. the day after Shayleen was injured. She described Jared as concerned, excitable, and fidgety. Ozor explained to Jared that she was there to find out what had happened. When she asked if he and Shayleen slept in different bedrooms, Jared stated that Shayleen takes bad naps but he takes good naps, and that "Mama bumps our heads all the time" and when asked how, stated, "Mama throws Shayleen down on the floor a lot." He then beat a doll on the floor several times, and when asked what Shayleen does he stated that she cries and that his mom slaps her across the face.
McCracken was the nurse caring for Shayleen. When Jared visited Shayleen on September 12, 1995, McCracken testified that Jared entered the room, approached Shayleen's bed, and touched her. He sat on Shayleen's bed, and someone explained to him that Shayleen was very sick and might not live. Jared nodded his head. He volunteered that children who die cannot play or run anymore. He then said, "[O]h, God, I'm sorry." McCracken offered to read Jared one of the books on Shayleen's bed. As she read the book, he took a stuffed doll with a sunflower face and threw the doll on the floor. He then stated, "Look, the doll's eyes did not roll back in its head." McCracken then asked Jared if Shayleen's eyes had rolled back in her head before she came to the hospital, and he indicated that they had. Later, he threw the doll to the floor again.
Carr, 963 P.2d at 619.
Petitioner contends admission of these statements would have warranted reversal on appeal because they contain no indicia of reliability and, thus, violate petitioner's right to confront the witnesses against her. In addition, petitioner contends these remarks were irrelevant and prejudicial.
The trial court admitted these statements as exceptions to the hearsay rule, embodied in K.S.A. § 60-460(d)(2) and (3). The first exception admits statements made "while the declarant was under the stress of a nervous excitement caused by such perception." K.S.A. § 60-460(d)(2). The second exception admits statements made by an unavailable witness if the statement was made "at a time when the matter had been recently perceived by the declarant and while the declarant's recollection was clear and was made in good faith prior to the commencement of the action and with no incentive to falsify or to distort." K.S.A. § 60-460(d)(3). Because the trial judge ruled that Jared Carr was incompetent to testify, he was considered "unavailable" under K.S.A. § 60-460(d)(3).
The confrontation clause provides that "in all criminal prosecutions, the accused shall enjoy the right . . . to be confronted with the witnesses against him." U.S. Const., Amdt. 6. This requirement ensures the reliability of testimony because personal presence at trial "makes it more difficult to lie" and it "insures that the witness will give his statements under oath thus impressing him with the seriousness of the matter." Ohio v. Roberts, 448 U.S. 56, 63 (1980) (citations omitted). However, despite the confrontation clause's preference for face to face confrontation, hearsay evidence can be admitted when it is "sufficiently reliable, either because it falls within a `firmly rooted hearsay exception' or is supported by `particularized guarantees of trustworthiness.'" People v. Ignacio, 10 F.3d 608, 612 (9th Cir. 1993), quoting Idaho v. Wright, 497 U.S. 805, 816 (1990). A state court's determination that a statement fits within a firmly rooted hearsay exception is not dispositive, the state court record must show that there is a factual basis for the exception. Paxton v. Ward, 199 F.3d 1197, 1209 (10th Cir. 1999).
In ruling on petitioner's ineffective assistance of counsel claim, the Kansas Court of Appeals did not expressly find that the trial court's hearsay determinations were correct, they only stated that the trial court's decision "was not arbitrary, fanciful, or unreasonable, but was made after careful consideration of the issue." Carr v. State, 18 P.3d 988 (Table) (Kan.Ct.App. 2001). Rather than undergo a complicated fact intensive discussion of the admissibility of these statements, this court will turn to the prejudice inquiry. If counsel had preserved this issue for appeal and it was established that the statements were inadmissible hearsay, without any indicia of reliability, then the inquiry before this court becomes whether there was a reasonable probability that the defaulted claim would have resulted in reversal on appeal. Neill v. Gibson, 278 F.3d 1044, 1057, n. 5 (10th Cir. 2001).
If the Kansas Supreme Court had found the statements to be violative of the confrontation clause or more prejudicial than probative, they would have examined whether the admission of these statements was harmless beyond a reasonable doubt or, stated otherwise, whether "the error had little, if any, likelihood of having changed the result of the trial." State v. Leitner, 34 P.3d 42, 56 (Kan. 2001). Because Jared's statements were merely cumulative of physical evidence and other testimony provided at trial, it is not reasonably probable that the exclusion of these statements would have changed the verdict from guilty to not guilty. In addition, the court gave the jury a cautionary instruction regarding the statements attributed to Jared. This instruction made it clear that Jared's statements were to be closely scrutinized for reliability.
The instruction, PIK Crim.3d 52.21, read as follows: "[i]t is for you to determine what weight and credit to give the statements claimed to have been made by Jared Carr. You should consider his age and maturity, the nature of the statement, the circumstances existing when it was claimed to have been made, any possible threats or promises that may have been made to him to obtain the statement, and any other relevant factors."
In sum, petitioner has not established the requisite prejudice to overcome her procedural default of this claim and, as such, is not entitled to relief on ground three.
GROUND FOUR — EXCLUSION OF HEARSAY STATEMENTS OF JARED CARR
Petitioner next contends that the court should have admitted, through the testimony of his father, statements made by Jared Carr regarding the cause of the victim's facial bruising and blackened eyes. On direct appeal, the Kansas Supreme Court found that any error was harmless because the substance of the testimony was placed before the jury through other means:
The defendant also contends that the trial court erred in failing to admit the hearsay statement of Jared Carr concerning how Shayleen came to have black eyes. The defendant argues that this refusal constituted an abuse of discretion and further violated her constitutional right to due process.
The chain of events giving rise to the defendant's argument are important to the resolution of this issue. During the testimony of Victoria Sweetwater, a family support worker called as a witness by the defendant, Sweetwater testified that on one occasion she had observed Shayleen with two black eyes. The defendant later attempted to ask Jim Carr about what Jared told him regarding Shayleen's black eyes. The State objected to Jared's statement on hearsay grounds. The defendant's attorney then stated, "I think it's res gestae, Your Honor." The trial court sustained the objection. However, Jim Carr was immediately thereafter allowed to testify that he found out that Shayleen had tripped on the new carpet and fallen, blackening both eyes.
The defendant now contends that the statements should have been admitted under K.S.A. 60-460(d)(2) or K.S.A. 60-460(d)(3). She may be correct in this assumption. However, whether or not she is correct that the statements were admissible, her argument fails that the failure to admit these statements requires reversal.
In this case, the statement at issue was one made by Jared, a witness who was unavailable. However, although the defendant asked that the statement be allowed, no reason was advanced for its admission. Further, the defendant did not proffer the contents of the statement, so it is very difficult to determine what effect the statement would have had on the outcome of the trial. In her reply brief, the defendant argues that such a proffer was unnecessary as the testimony immediately proceeding the attempted introduction of the hearsay statement made clear that the statement was that Shayleen got two black eyes in April when she tripped on the new carpet. If this is the case, then the issue is even easier. Immediately after the objection was sustained, the witness was asked, "Without telling us what Jared told you, did you find out what happened?" The witness was allowed to reply that he found out that Jared and Shayleen were running through the house and Shayleen had tripped on the new carpet and fallen headfirst. As a result, the substance of the hearsay statement was introduced to the jury and, therefore, any error in failing to introduce the exact statement itself was harmless.
Although the defendant contends that "the prejudice resulting from the exclusion was painfully obvious" in that if Jared's statement had been allowed in to corroborate the statement of Jim Carr, there is a substantial probability that the jury would have decided the case differently, this argument ignores the fact that whether Jared made the statement or Jim Carr simply related what he had learned from Jared, the believability of the statement would still depend upon Jim Carr's credibility. Further, it is clear from the questions and answers that Jim Carr was relating an explanation that he learned from Jared, and the admission of Jared's actual statement was unnecessary. Under these circumstances, there was no prejudice to the defendant's right to a fair trial.
Carr, 963 P.2d at 431-32. This court agrees with the Kansas Supreme Court's reasoning. It was evident to the jury that Jim Carr's explanation came from Jared and, therefore, the substantive effect of the explanation is the same. Relief should be denied as to ground four.
GROUND FIVE — FAILURE TO INSTRUCT ON LESSER DEGREES OF HOMICIDE
Petitioner contends that her substantive due process rights were violated because the court did not instruct the jury on second degree murder, voluntary manslaughter, and involuntary manslaughter.
In non capital cases, habeas relief is not available for the failure to instruct on a lesser included offense, even if the court believes the evidence would support such an instruction. Lujan v. Tansy, 2 F.3d 1031, 1036 (10th Cir. 1993). Relief should be denied as to ground five.
GROUNDS SIX AND EIGHT — PROCEDURAL DEFAULT
In grounds six and eight, petitioner claims trial counsel was ineffective for: (1) failing to consider, advise, and investigate regarding the defense of diminished capacity and (2) failing to adduce trial testimony corrobative of Jim Carr's testimony regarding the victim's prior head injury. Respondent contends that petitioner has procedurally defaulted these claims by not raising them in a petition for review before the Kansas Supreme Court. Petitioner counters that in Kansas, the petition for review is not a part of the ordinary appellate review procedure.
Before proceeding in a federal action, petitioner must present the issues in the state courts in a posture allowing full and fair consideration. O'Sullivan v. Boerckel, 526 U.S. 838, 845 (1999); Smith v. Atkins, 678 F.2d 883, 885 (10th Cir. 1982). The exhaustion requirement is not satisfied unless all the claims asserted in the habeas petition have been presented for state court review by "invoking one complete round of the State's established appellate review process." Id. In Kansas, this includes a petition for discretionary review to the Kansas Supreme Court. See Gonzales v. McKune, 279 F.3d 922, 924 (10th Cir. 2002) (noting that petitioner procedurally defaulted his claim by failing to present it in a petition for review to the Kansas Supreme Court).
Because the time for petitioning the Kansas Supreme Court for review of this issue has long since passed, these claims are subject to an anticipatory procedural default. See Dulin v. Cook, 957 F.2d 758, 759 (10th Cir. 1992) ("[I]f the court to which petitioner must present his claims in order to meet the exhaustion requirement would now find those claims procedurally barred, there is a procedural default for the purposes of federal habeas review.") (relying on Coleman v. Thompson, 501 U.S. 722 (1991)).
The procedural default doctrine precludes federal habeas review of a federal claim that a state court would decline to consider due to the petitioner's noncompliance with state procedural rules unless petitioner can show (1) both cause and prejudice or (2) manifest injustice. See Coleman v. Thompson, 501 U.S. 722, 749 (1991). Petitioner has asserted neither cause and prejudice nor manifest injustice and, therefore, relief should be denied as to grounds six and eight.
GROUND SEVEN
Petitioner alleges trial counsel's failure to contemporaneously object at trial to Jared Carr's hearsay statements constitutes ineffective assistance of counsel. Petitioner contends this failure prejudiced her because the hearsay issue was not properly preserved for direct appeal. This claim was previously addressed as cause for petitioner's procedural default of ground three. As discussed above, any deficiency in counsel's failure to object was harmless because inclusion of this claim would not have resulted in a reversal of petitioner's conviction on appeal. Relief should be denied as to ground seven.
RECOMMENDATION
IT IS, THEREFORE, RESPECTFULLY RECOMMENDED that the petition for a writ of habeas corpus be denied.
Any party objecting to the recommended disposition may serve and file with the clerk of the district court written objections within 10 days of service of this Report and Recommendation. Any objection filed must specify the parts of the Report and Recommendation to which objections are made, and set forth the basis for such objections. See Fed.R.Civ.P. 72. Failure to file timely objections waives appellate review of both factual and legal questions. Thomas v. Arn, 474 U.S. 140 (1985); Soliz v. Chater, 82 F.3d 373, 375 (10th Cir. 1996).
Any objections should be presented in a pleading entitled "Objections to Report and Recommendation" and filed with the clerk.
Copies of this Report and Recommendation shall be mailed to petitioner and counsel of record.
The filing of this report and recommendation terminates the referral of this case to the undersigned.