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State court’s exclusion, on hearsay grounds, of exculpatory evidence didn’t violate right to present defense

Wayne Kubsch v. Ron Neal, 7th Circuit Court of Appeals No. 14-1898, 8/12/15

After being convicted of murdering his wife, her son, and her ex-husband, Kubsch was sentenced to death. He challenged his conviction and sentence in a federal habeas proceeding on three grounds: (1) the Indiana trial court excluded evidence of a witness’s exculpatory hearsay statement to police; (2) his trial counsel was ineffective in seeking admission of the witness’s hearsay statement; and (3) his waiver of counsel and choice to represent himself at the sentencing phase of his trial were not knowing and voluntary. The court, over a dissent by one judge as to the first and second claims, rejects Kubsch’s arguments.

The opinion in this case spans 120 pages—a 60-page majority opinion, a 36-page dissent, and two appendices—so this post provides only a truncated overview of the issues that the opinion addresses at much greater length. The main issue, and the point of contention between the majority and dissent, is whether the state courts’ application of the hearsay rules to a witness’s exculpatory statement impermissibly restricted Kubsch’s right to present a defense in violation of Chambers v. Mississippi, 410 U.S. 284 (1973). The dueling majority and dissenting opinions about how to apply Chambers are worth studying if you are litigating a claim based on that case. In addition, habeas practitioners will be interested in the majority’s discussion of the unresolved question of the standard of review of a state court decision that is unexplained or incomplete.

Right to present a defense

A few days after the murders, which occurred in 1998, Amanda (“Mandy”) Buck, a 9-year-old neighbor of Kubsch and his wife, gave a videotaped statement to police. Amanda’s statement was exculpatory because she said she saw the victims alive at a time of day that would have made it impossible for Kubsch to have killed them because it was established he was out of town by that time. Amanda didn’t testify at Kubsch’s first trial in 2000, which ended with Kubsch being convicted. His conviction was reversed on direct appeal on an unrelated issue. Kubsch did call Amanda as a witness at his retrial in 2005, but by that point she said she could not remember having seen the victims the day of the murders; indeed, she said she did not even remember giving the videotaped statement. (Slip op. at 3-14).

Kubsch tried to get Amanda’s videotaped statement admitted under Indiana Rule of Evidence 803(5), the recorded recollection exception to the hearsay rule (the counterpart to Wisconsin § 908.03(5)). The trial court ruled this exception didn’t apply because the declarant must “vouch for the accuracy” of the statement for it to qualify and that Amanda couldn’t do that because she couldn’t remember making the statement. Kubsch then offered the videotaped statement as an inconsistent statement, for it contradicted one statement in her testimony that she “probably didn’t see” the victims that day. The trial court rejected that claim, too. (Slip op. at 14-16).

The state appellate court agreed the videotaped statement didn’t qualify as recorded recollection, but held the trial court should have allowed the statement to be admitted as an inconsistent statement and used for impeachment. It concluded, however, that the error in excluding the statement was harmless: It would only have been admitted as impeachment evidence, not substantive evidence (unlike in Wisconsin, see § 908.01(4)(a)1.Vogel v. State, 96 Wis. 2d 372, 291 N.W.2d 850 (1980)); and the state had evidence to impeach the veracity of the videotaped statement. In the course of finding this error harmless, the state court relegated to a footnote its rejection of Kubsch’s claims under Chambers that the state’s rules of evidence should have bent before his right to present evidence and the statement should have been admitted as substantive evidence. (Slip op. at 16-19).

Kubsch argues the state court’s decision was an unreasonable application of Chambers and the cases that followed it. Those cases hold, in the majority’s summary, that:

…[R]ules of evidence restricting the right to present a defense cannot be “arbitrary or disproportionate to the purposes they are designed to serve.” Rock [v. Arkansas], 483 U.S. [44,] 56 [(1987)]. The most recent in the Chambers line of cases explained that the Court has struck down as “arbitrary” those restrictions that “excluded important defense evidence but that did not serve any legitimate interests.” Holmes [v. South Carolina], 547 U.S. [319,] 325  [(2006)]. We have applied this constitutional standard to grant habeas relief in strong cases. E.g., Harris v. Thompson, 698 F.3d 609 (7th Cir. 2012); Sussman v. Jenkins, 636 F.3d 329 (7th Cir. 2011). We have also denied relief where there was room for reasonable jurists to disagree. E.g., Dunlap v. Hepp, 436 F.3d 739 (7th Cir. 2006); Horton v. Litscher, 427 F.3d 498, 504 (7th Cir. 2005). (Slip op. at 23).

A rule of evidence is arbitrary if it restricts the presentation of evidence for the defense but not the prosecution; the majority concludes that isn’t true with the recorded recollection rule at issue here, as it applied equally to the state and defense. (Slip op. at 23-24). Further, a rule of evidence can be disproportionate to its purpose if it excludes reliable evidence. Application of the hearsay rule here wasn’t disproportionate because, the majority concludes, there are significant problems with the reliability of Amanda’s statement—e.g., it is uncorroborated on critical points, the interviewers didn’t develop some key details, and it would be difficult for the state to cross-examine her about a statement she has no memory making. (Slip op. at 25-30, 41-45). Thus, the majority concludes exclusion of Amanda’s statement didn’t violate Kubsch’s right to present a defense.

Citing other Indiana cases, the dissent criticizes the state court’s ruling that Buck didn’t say enough to satisfy the “vouching” requirement to qualify the videotaped statement as recorded recollection. (Slip op. at 83-86). (As the dissent acknowledges (slip op. at 85-86), it is not up to the habeas court to decide whether the state court properly applied state law, but the fact Buck’s statement missed qualifying as recorded recollection “by a hair” (slip op. at 82) diminishes the weight to be given to the evidence rule compared to Kubsch’s right to present a defense.) Most importantly, the dissent catalogs the substantial reasons why Amanda’s statement was reliable (slip op. at 67-71, 88-95) and why, ultimately, “this case is as close to Chambers as anyone is likely to find” (slip op. at 93).

Ineffective assistance of counsel regarding admission of the videotaped statement

Kubsch also claimed his trial lawyers were ineffective for failing to ask Amanda the necessary questions to lay the proper foundation for the videotaped interview to met the recorded recollection exception. The majority concludes the record of the postconviction hearing at which trial counsel testified doesn’t establish what trial counsel should have done to differently or what would have happened if they’d done what Kubsch says they should have. Thus, there’s no basis for finding trial counsel ineffective. (Slip op. at 46-50).

Consistent with its position on the issue about the admissibility of Amanda’s statement, the dissent takes the opposite view on this issue, too:

Counsel failed to take any of a number of readily available steps to meet the requirements of Rule 803(5)—steps that were necessary … for effective assistance of counsel. Indiana courts require that the witness whose recollection has faded need only tell the finder of fact that her statements in the recording were accurate. Kubsch’s attorneys never asked Mandy that question. Instead, they dropped the subject after establishing the fact that she could not recall speaking to the police, which relates to a different requirement of the rule (one that was easily met). They should have asked her whether she would have told the police the truth if such an interview had taken place, but they did not. They could have shown her the beginning of the videotape on the record—the trial transcript indicates they showed Mandy the tape off the record but never put her back on the stand afterward—and asked her whether she was the girl depicted in the recording. They could have asked [Amanda’s mother] Monica or anyone else who knew Mandy well about her reputation for truthfulness. Any of these steps, and certainly all of them taken together, would have met the requirements Indiana courts have set for compliance with Rule 803(5)’s requirement for evidence that shows that the recording reflects the witness’s knowledge correctly. (Slip op. at 87-88).

Standard of review of the state court’s decision

The usual standard of review in a federal habeas case is deferential to the state court’s decision. It requires the petitioner to show the state court’s adjudication of a federal claim “resulted in a decision that 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). As noted above, the state court’s handling of Kubsch’s Chambers claim was cursory, “at best incomplete and at worst wrong and unreasonably so” because by addressing the claim only in the context of admitting Amanda’s statement for impeachment as an inconsistent statement, the state court didn’t engage with Kubsch’s claim that Chambers required admitting the statement as substantive evidence. (Slip op. at 16-19 35-36). The state court’s failure to engage the claim thus “poses a methodological question on which federal law is not settled”—namely, whether Kubsch is entitled to de novo review of his claim, rather than the far more deferential determination of whether the state court’s decision was unreasonable. (Slip op. at 33).

The question arises because if a state court rejects a claim without any explanation, the petitioner has to show there’s no reasonable basis for the state court’s decision. Harrington v. Richter, 562 U.S. 86, 98 (2011). If the state court gives reasons that are incomplete—which is one way to characterize the state court’s decision in this case—the habeas court can fill in the gaps by asking what reasons could have supported the state court’s conclusion. Jardine v. Pittman, 658 F.3d 772, 777 (7th Cir. 2011). At the same time, however:

…there is room to argue that where the state court has provided a rationale for its decision, the federal courts should focus their attention on the reasons actually given rather than hypothesize a better set of reasons. See Wiggins v. Smith, 539 U.S. 510, 528–29 (2003) (holding state court’s rationale unreasonable without considering other possibilities); Frantz v. Hazey, 533 F.3d 724, 737–38 & n.15 (9th Cir. 2008) (en banc) (confining analysis to reasons actually given by state court, without hypothesizing alternative rationales); Oswald v. Bertrand, 374 F.3d 475, 483 (7th Cir. 2004) (“reasonableness of a decision ordinarily cannot be assessed without considering the quality of the court’s reasoning,” though “ultimate question … is not whether the state court gets a bad grade for the quality of its analysis but … whether the decision is an unreasonable application of federal law”). (Slip op. at 39).

The Supreme Court hasn’t clearly said which approach to take, so “deference toward state court decisions that reach defensible results for bad or incomplete reasons is not necessarily settled law at this point.” (Slip op. at 40).

Faced with this uncertainty, the court reviews Kubsch’s Chambers claim under a de novo standard of review. Under that standard, even if the state court’s footnoted treatment was an unreasonable application of Chambers to reject Kubsch’s claim, he would still need to show on the merits that his constitutional rights were in fact violated, as § 2254(a) requires for a grant of actual relief. And that he cannot do: “If de novo review applies, the issue is closer than under § 2254(d)(1), but we conclude that the exclusion of Amanda’s recorded statement as substantive evidence did not violate Kubsch’s federal constitutional right to put on a defense” for the reasons already summarized above. (Slip op. at 41-45).

Waiver of the right to counsel

…. At the penalty phase of the trial, Kubsch waived his right to counsel and represented himself. He chose not to present any mitigating evidence. He did make a statement to the jury in which he said the murders were a “horrific nightmare” for which the death penalty would be appropriate, but he also continued to assert his innocence. On direct appeal and federal habeas review … he has argued that his waiver of counsel was not sufficiently knowing and intelligent because he was not “made aware of the dangers and disadvantages of self-representation.” See Faretta v. California, 422 U.S. 806, 835 (1975).

The Indiana Supreme Court considered and rejected the claim. …. That decision was not an unreasonable application of federal law under the circumstances of this case. …. Kubsch made clear that he was waiving counsel because he did not want to present evidence at the sentencing phase of the trial. That decision simplified substantially the challenge of representing himself, so the trial judge’s colloquy was sufficient under the circumstances. Neither Faretta nor any other Supreme Court decision required the judge to discourage Kubsch from making his decision to waive counsel. (Slip op. at 50-51).

After Kubsch said he would not present any evidence, the trial court dispensed with most of the standard advice and warnings about the difficulty of self-representation because they would not apply; all that remained for Kubsch to do was make a closing argument on whether death should be imposed. The trial court concluded Kubsch was competent to represent himself, and the habeas court concludes Kubsch’s strategy is understandable:

Rather than begging for mercy from the jury that had just convicted him of three brutal murders without any apparent mitigating circumstances, Kubsch told the jury, “I wouldn’t even dare try to insult your intelligence by wasting your time by presenting mitigation.”…. He instead asserted several times that he is innocent. His approach can be understood as a reminder that the jurors should consider the possibility that they might have made a mistake, so that residual doubt should weigh against the death penalty. That approach is entirely consistent with his defense at trial, even though neither was successful. The state courts did not act unreasonably in viewing the waiver as strategic and knowing. …. (Slip op. at 58-59).

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