United States District Court, D. Oregon
ANTHONY D. BORNSTEIN, Federal Public Defender's Office, Portland, OR, Attorney for Petitioner.
FREDERICK M. BOSS, Deputy Attorney General, NICK M. KALLSTROM, Assistant Attorney General, Department of Justice, Salem, OR, Attorneys for Respondent.
OPINION AND ORDER
MALCOLM F. MARSH, District Judge.
Petitioner Michael David Benson, Sr., an inmate in the custody of the Oregon Department of Corrections, brings this habeas corpus proceeding pursuant to 28 U.S.C. § 2254. Petitioner contends that the trial court violated his Sixth Amendment right to confront adverse witnesses when it admitted hearsay statements of his non-testifying co-defendant at their joint trial. For the reasons set forth below, the petition is denied.
Early in the morning on October 28, 1998, petitioner and co-defendants Jamison Ennis and Brian Hudson went to the home of Patrick Murphy. Petitioner drove a U-Haul truck to Murphy's home, and Ennis and Hudson drove in Ennis's car. Ennis told petitioner he needed the U-Haul to retrieve property he left at Murphy's house. Murphy let them in the house, and led them into the garage, where they met Frank Perrette, who was smoking methamphetamine. Subsequently, a conversation between Murphy and petitioner became heated, and Murphy and petitioner went inside the house and the two fought. Meanwhile, Ennis and Hudson loaded the U-Haul with various items, including guns, ammunition, and tools. Eventually, two gunshots were heard coming from inside the house. Petitioner and Hudson left Murphy's home in the U-Haul, and Ennis in his car. Perrette left in Murphy's vehicle. Tr. 124. No one reported the shooting, and Murphy's body was not discovered by the police until December 14, 1998.
Petitioner was indicted with two counts of felony murder, charging that during the course of committing burglary or robbery, petitioner shot and killed Patrick Murphy with a handgun, violating O.R.S. §§ 163.115(1)(b)(C), (G). In April and May of 2000, petitioner was tried jointly with co-defendants Ennis and Hudson.
Prior to trial, co-defendant Hudson made several statements that inculpated petitioner and Ennis to police detectives and others. The prosecution moved to admit Hudson's statements and petitioner moved to sever his trial from co-defendants Ennis and Hudson. The trial court denied petitioner's motion to sever, and admitted Hudson's statements in redacted form and with a limiting instruction that the evidence only be considered against Hudson. Hudson did not testify at their joint trial.
At trial, the prosecution's theory of the case was that Murphy owed Ennis money for drugs that Ennis had "fronted" Murphy, meaning that Ennis had supplied Murphy methamphetamine for which Murphy had not paid Ennis. The prosecution argued that Ennis and petitioner went to Murphy's home to take property to settle the debt, or to "tax" Murphy. Also, the state contended that Ennis and petitioner wanted to extract an apology from Murphy for offensive statements Murphy made to Ennis's girlfriend.
Petitioner testified at trial and admitted that he fought with Murphy, but contended that he shot Murphy in self-defense. Petitioner also argued that he went to Murphy's home to assist Ennis in recovering Ennis's property, and denied that he intended to steal Murphy's property.
I. Facts Established at Trial
A. State's Case
In its case in chief, the state called Frank Perrette, the only eyewitness to the events on the night of Murphy's death other than the three co-defendants. Perrette testified that he and Murphy had been working on Murphy's car in the garage and smoking methamphetamine. Perrette testified that when petitioner and co-defendants arrived, petitioner got into a "heated discussion" with Murphy, and was looking for an apology that Murphy did not provide. Tr. 113. Perrette testified that petitioner tried to shoot Murphy with a crossbow, but it did not fire. Tr. 111, 114. Then, petitioner hit Murphy in the face with a phone. Tr. 114-15. Perrette testified that the "scuffle" between Murphy and petitioner moved into the house, and that it sounded like Murphy was being "roughed up" inside the house by petitioner. Tr. 115. Perrette testified that he stayed in the garage with Ennis and Hudson. Tr. 116.
Perrette testified that at some point, he saw petitioner point a small handgun around and that Ennis had a large pistol. Tr. 116, 117. Perrette testified that Ennis passed petitioner a roll of duct tape into the house, and that Murphy tumbled over a stove and back into the garage and that Murphy's hands were duct-taped together and Murphy had bloody feet. Tr. 118-19. Perrotte testified that Murphy and petitioner went back into the house where they continued to argue. Tr. 120.
Perrotte testified that while Murphy and petitioner fought in the house, he remained in the garage with Ennis, who was holding a gun. Tr. 120. Perrotte explained that Ennis and Hudson were loading up Murphy's possessions such as tools, guns, ammunition, and a small welder. Tr. 120-21. Perrotte testified that petitioner told him that he had "one chance to save your friend." Tr. 121. Perrotte testified that he believed that petitioner wanted him to talk to Murphy, so he went into the house and walked down the hallway toward Murphy, who was in the back bedroom. Tr. 122. Perrotte testified that petitioner ran down the hallway toward Murphy, that Murphy ran into the office, and Perrotte stated that he returned to the garage. Tr. 122. Perrotte testified that he next heard a loud sound like a door getting kicked in, and two gunshots. Tr. 123.
Perrotte stated that he turned to Ennis and said "I'm out of here" then walked out. Tr. 124. Before leaving, Perrotte heard Murphy say "You fucker, You fucker. You shot me." and call Perrotte's name. Perrotte testified that he did not have a gun, and did not go inside for fear of being shot. Perrotte testified that he ran to Murphy's Blazer, and took off. Tr. 124-25. Perrotte testified that he did not report the shooting to the police because he felt threatened by Ennis. Tr. 128. Perrotte testified that Ennis said that he knew where Perrotte lived, and that Ennis knew Perrotte had a wife and two kids. Tr. 128. Perrotte also stated that he knew Murphy owned a safe. Tr. 129.
On cross-examination, Perrotte admitted that on the first three occasions he spoke to the police, he did not provide truthful information, but later decided to tell the truth. Tr. 219. Perrotte testified that he told the police that Ruby McBride had stolen a large amount of methamphetamine from Murphy, and that McBride was paying Perrotte to keep quiet by giving him methamphetamine. Tr. 137. Perrotte admitted that he and Murphy used methamphetamine, that he consumed a couple of beers, and that he was high on the night of Murphy's death. Tr. 143-44. Perrotte admitted that he drove McBride to Murphy's home after Murphy was shot, but did not go inside the house. Perrotte also admitted to driving Murphy's Blazer for six weeks knowing that Murphy was dead, but that he was not charged with unauthorized use of a motor vehicle.
The prosecution also presented testimony from two police officers, Craig Siebel and Todd Gray, who responded to a complaint by a manager at the Quality Inn about a high volume of traffic and suspected drug activity on October 28, 1998, the same day Murphy was shot. Tr. 298, 311. Officer Gray testified that when he arrived at the motel room, he found petitioner, co-defendant Ennis, and Christine Wilson, petitioner's girlfriend. Tr. 300-303. Inside the motel room, police found a shotgun with a pistol grip, a duffle bag, long rifle, and a.22 calibur revolver. Tr. 303-04. Officers Gray and Siebel testified that petitioner negotiated to consent to the search of a briefcase if personal items from his car could be removed, including a computer, leather jacket and other personal items. Tr. 317, 322. Officer Gray testified that inside the briefcase, he located drugs, a scale and money. Tr. 309.
Petitioner's girlfriend, Christine Wilson, testified that on October 28, 1998, petitioner and co-defendants Ennis and Hudson returned to the Quality Inn and changed clothes, which they put into a duffle bag, and that Ennis then left. Tr. 332. Wilson testified that she did not know where petitioner had been, but she presumed petitioner had beat someone up. Tr. 338. Wilson also testified that when petitioner returned to the motel room, petitioner had injured his thumb and that she wrapped it with toilet paper, and that petitioner told her the injury was caused by a "bow and arrow or a crossbow." Tr. 347. Wilson denied renting the U-Haul, but she admitted that she saw blood on petitioner's leather jacket and that she cleaned it at petitioner's request. Tr. 349. On cross-examination, Wilson admitted that in October of 1998, she was using a lot of methamphetamine. Tr. 356.
Murphy's body was discovered by a code enforcement officer responding to a complaint about an abandoned house on December 14, 1998. At trial, the prosecution called Detective Jeff Staples, who assisted with the investigation into Murphy's death. Staples testified that Murphy's house had been ransacked and Murphy's body had been there awhile, and that he found a bullet hole, empty gun boxes and lots of ammunition. Tr. 405. Staples testified that there were blood smears on the walls, and a piece of rolled-up duct tape on the floor. Tr. 437.
The prosecution presented James Kevin Compton, petitioner's friend, who testified that on October 28, 1998, he was called by petitioner to retrieve petitioner's car from the Quality Inn, and that he unloaded the items from the car into his house, including a laptop computer, a leather jacket, and some tools. Tr. 622. Compton testified that Steve Miller eventually took the laptop, and that petitioner's mother took the leather jacket. Tr. 621. Petitioner's mother, Patricia Temple, testified that she eventually picked up all of petitioner's belongings from Compton's home. Tr. 600. Temple testified that she had initially stored some of petitioner's things at a neighbor's house, but later turned those items over to the police, including a leather jacket and a duffel bag that contained clothing that was too small for petitioner. Tr. 761-62. Forensic evidence established that the blood on petitioner's jacket was Murphy's.
Jonathan Morgan testified that he shared an apartment with Hudson and others. Tr. 646. Morgan testified that in late October 1998, he assisted Hudson in moving property from a house on Portland Road, and that he sold a number of those items to his neighbor, including a drill gun, a camera, a sword, speakers, and a television. Tr. 650. Morgan also testified that Ennis came to his house one night with a duffel bag containing guns. Tr. 644. Morgan read a statement that he gave to the police regarding what Hudson said:
Hudson had been involved in an incident where another person had tried to shoot a person in the leg with a crossbow. The person could not get the crossbow to fire and stabbed the person in the leg with the bolt - the bolt of the crossbow. I believe that Brian Hudson said it was because the person owed the other person something.
Tr. 644. On cross-examination, Morgan admitted that in October of 1998, he was using methamphetamine and heroin heavily. Tr. 657.
Jon Prince testified that he was Morgan's neighbor. Tr. 666. Prince admitted that he bought items from Morgan, including a drill, a camera, a long knife, Bose speakers for $80. Tr. 666.
Wallace "Corky" Giegle testified that he met petitioner in late October 1998, and that petitioner lent him $600. Tr. 678. Giegle testified that later that same day, he received a call from petitioner, asking Giegle to meet him at the Quality Inn because petitioner had items in a U-Haul that needed to be stored for a short time. Tr. 678. Giegle testified that he and petitioner drove to his RV, which was parked at a storage facility on Portland Road, and they unloaded items from the U-Haul into his RV, including a television, some boxes, rifles, speakers, and a small safe. Tr. 680. On cross-examination, Giegle admitted that he did not repay petitioner the $600 loan, and that he helped Ennis open the safe. Tr. 700. Giegle also admitted that in October of 1998, he was using methamphetamine on a daily basis. Tr. 709.
Deseree Rohrback testified that when Giegle was living with her family, Giegle and co-defendant Ennis used a screw driver and a hammer to force open a safe that Giegle was storing in her living room. Rohrback testified that inside the safe was jewelry and a "wad of money." Tr. 742.
The prosecution presented evidence from Joseph Jacobs, co-defendant Hudson's cellmate. Jacobs testified that on February 9, 1999, he gave a statement to Detective Mike Quakenbush. Tr. 783. Jacobs read his statement into evidence, which provided that while he shared a cell with Hudson at county jail, Hudson told Jacobs that Hudson "and others" went to a person's house to make the person apologize for "assault[ing)" two females, that "one of the persons [Hudson) was with began hitting the dude around, " that "Hudson said one of the persons handed him a roll of duct tape, and Hudson demonstrated how he duct-taped the person." Tr. 785. Jacobs stated that Hudson said "one of the persons had a gun, " that the victim and "the other persons" went into a bedroom, that Hudson heard two gunshots, and that they loaded some items into a vehicle and left. Tr. 785. According to the redacted statement, Hudson told Jacobs that Hudson "thought they were just going over to teach-teach the guy some respect, but it got out of hand because of the beating. Tr. 785.
The prosecution presented testimony from Ruby McBride, Murphy's girlfriend. McBride testified that she took a large quantity of methamphetamine from Murphy. Tr. 880. McBride also testified that she knew Murphy owned a safe, and that shortly after Murphy's death, the safe was no longer at Murphy's home. Tr. 885-86.
The prosecution called Stephanie Silsby, co-defendant Hudson's girlfriend. Silsby testified that she talked to Detective Graham, but that she had no independent recollection or memory of what she said. Tr. 299. On cross-examination, Silsby admitted that at the time she gave her statement to Officer Graham, she was using methamphetamine heavily. Tr. 262, 272.
Over petitioner's attorney's objection, the prosecution was permitted to call Detective Graham to read Silsby's statement. Detective Graham testified that he interviewed Silsby on two occasions in February 1999. Graham then read the redacted statement from Silsby about what Hudson told her about the events in October 1998:
Brian Hudson told [Silsby] that he and others went and taxed someone. It was real bad, and he was scared as he had never seen anything like it. The person who was taxed was duct taped or tied up. Hudson did not indicate who the victim was or who did the tying or duct taping. Brian Hudson told her that one of the other persons there had an arrow type gun and was trying to shoot the victim and it would not work. The person stabbed the victim in the leg. Hudson said at that time during this incident Hudson (as spoken) had a gun. Hudson said that at one point the victim got a hold of a gun and Hudson told one of the other persons present. One of the other persons present took the gun that Hudson had, and Hudson went into another room.... The other two persons were in a room with the victim, and Hudson was in a separate room. He and the others stole the victim's property, which included money and drugs. Hudson told her that they got other merchandise that was apparently worth a lot of money.
Detective Stoelk testified about his investigation, and that he interviewed Hudson in February 1999. As relevant, Detective Stoelk read a statement made by Hudson into the record:
Brian Hudson said that he had been staying at Salishan Street with his girlfriend, Stephanie Silsby, with a Jonathan Morgan, and with Morgan's girlfriend named Robyn. Hudson knows Michael Benson and Jamison Ennis. He attended high school with Ennis and considered him to be a friend for some time. He met Benson only recently. Hudson did not know what was going to happen when Hudson went into the house. This occurred one day between 3 and 5 a.m. Hudson was at the Salishan residence with someone named Anthony, Jonathan Morgan, Robyn, and Stephanie Silsby. There was a knock on the door, and Stephanie answered the door. Hudson went outside. There was a Honda car and a U-Haul truck. The U-Haul truck was a large one, having a storage area over the cab. Anthony was outside with Hudson before Hudson left. Hudson got into the Honda and went to Waremart and met the U-Haul.
They went to a house. He did not know the person who lived at the house. At the house, the U-Haul was parked in the driveway backing down the driveway. Murphy answered the door, and it was about daylight. Murphy let him into the house. Hudson went into the garage. Someone else was there. Murphy and the other person were smoking methamphetamine. He did not know the other person's name. He watched what happened in the garage. Murphy went into the house. Hudson heard loud crashing noises and thudding noises that sounded like a body hitting the wall. After a while, Hudson saw Murphy fall backwards into the garage, landing on the floor. He saw Murphy get hit in the head with a handgun. There was a large gash in Murphy's head that was bleeding quite a bit. There was duct tape placed around the wound on Murphy's head. Hudson, following directions by one of the other persons present, began packing up Murphy's tools. Hudson packed them up near the garage door. Hudson moved an electrical welder next to the garage door in preparation to take it. Hudson went inside the house to a back bedroom that appeared to serve as an office to get guns from that room. Hudson found several guns. One was a rifle, and one was a shotgun... He removed the ammunition from all the guns and took the two long guns and a Tupperware box of ammunition to the garage. Hudson unloaded or made sure that all the guns were unloaded. As Hudson was in the office, he saw Murphy in the bedroom. It appeared that things were calmer. Murphy no longer had the duct tape on. When Hudson reentered the house after carrying the guns out, Hudson saw that Murphy was in the doorway leading into the office. Hudson thought Murphy had a gun. Hudson was handed a can of mace and told to go out in the garage and watch the guy in the garage. Hudson then loaded the welder and the two long rifles into the U-Haul truck. While outside, Hudson heard two loud pop noises from inside the house. The other person, who had been at the house when Hudson arrived, indicated that he wanted to leave, and Hudson did nothing to stop him from doing so. The other person left in a Chevy Blazer. Hudson left, riding as a passenger in the U-Haul truck. While riding in the U-Haul, one of the others handed Hudson a small black 22 automatic pistol. Hudson went in the U-Haul to a motel The property remained in the U-Haul truck. In the motel, Hudson, at the direction of one of the others there, removed the clip from the gun that had been handed to him in the U-Haul while leaving Murphy's house.
Chrissy Wilson was at the motel room. Hudson, at the direction of one of the others present, removed his clothing and put it into a duffel bag. Hudson believes that either Chrissy Wilson or Corky removed the clothing from the motel room. Hudson went to take back the U-Haul truck at about 10 a.m. Hudson took the U-Haul truck to the distributor... at the direction of one of the other persons present. Hudson dropped off the truck, tossing the keys to the attendant at the business. A safe and guns were removed from the U-Haul before it was returned. Those items were placed in another car.
Hudson went back to his place and told Stephanie Silsby what had happened. He did not tell anyone else. Later on Hudson, at the direction of another person, went to Corky's to get some of the items that were taken there. Hudson went there and found that things had already been removed. He and another person ...