F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
FEB 1 2005
TENTH CIRCUIT
PATRICK FISHER
Clerk
SHARON CARR,
Petitioner-Appellant,
v. No. 03-3336
RICHARD KOERNER, (D.C. No. 01-CV-3342-SAC)
(D. Kansas)
Respondent-Appellee.
ORDER AND JUDGMENT*
Before BRISCOE, MURPHY, Circuit Judges, and STEWART, District Judge.**
I. INTRODUCTION
Petitioner Sharon Carr appeals the district court’s denial of her Petition for a Writ
of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254. We granted a Certificate of
Appealability on two grounds, namely (1) whether alleged error in the introduction of
hearsay violated the Confrontation Clause of the Sixth Amendment, and (2) whether
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and judgment may
be cited under the terms and conditions of 10th Cir. R. 36.3.
**
The Honorable Ted Stewart, District Judge, District of Utah, sitting by
designation.
alleged ineffective assistance of counsel violated Petitioner’s Sixth and Fourteenth
Amendment rights. We now affirm the district court’s decision.
II. PROCEDURAL HISTORY
On September 27, 1996, Petitioner was convicted by a jury in the district court of
Sedgwick County, Kansas, of first-degree felony murder in the death of her adopted
three-year-old daughter, Shayleen. Petitioner was sentenced to life in prison and
subsequently sought, but was denied, appeal at several levels. First, Petitioner sought
rehearing with the state trial court, which was denied on July 10, 1998. Second,
Petitioner filed a direct appeal to the Kansas Supreme Court where her conviction was
affirmed on July 10, 1998. Third, Petitioner sought post-conviction relief with the state
trial court, which denied her petition on November 17, 2000. The trial court further
denied Petitioner’s Request for Rehearing. Fourth, Petitioner sought appellate review of
the denial of her petition for post-conviction relief with the Court of Appeals for the State
of Kansas, which affirmed the state trial court’s denial on February 23, 2001. Motion for
Rehearing was denied, as well as subsequent review by the Kansas Supreme Court. Fifth,
Petitioner filed a Writ of Habeas Corpus under 28 U.S.C. § 2254 with the United States
District Court for the District of Kansas, which denied the petition on October 15, 2003.
We granted appeal.
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III. BACKGROUND
The predicate felony underlying Petitioner’s conviction is based on an incident of
child abuse. The incident occurred on September 7, 1995, when Shayleen was
hospitalized for various serious injuries. Shayleen died from the injuries four days after
admission to the hospital. Petitioner’s four-year-old son, Jared Carr, was present in the
home at the time Shayleen was injured and was able to observe Petitioner and Shayleen.
On the second day of trial, the trial court held a hearing outside the presence of the
jury to determine whether or not Jared was competent to testify before the jury. Jared was
questioned in the courtroom by the attorneys and the judge, and the trial court heard
arguments of counsel. The trial court then ruled that Jared was not qualified to testify
because he was unable to comprehend the concept of taking an oath, and was “incapable
of expressing himself on the matter so as to be understood” by the judge and the jury.
The trial judge noted that many of Jared’s answers were “nonresponsive.” However, the
judge emphasized he had not found that Jared was untruthful or that Jared didn’t know
the difference between a truth and a lie. The finding was that Jared was incompetent to
testify, which rendered him “unavailable as a witness.”
In light of this finding by the trial judge, the State requested that two other
witnesses – social worker Adella Ozor, and Jenny McCracken, a registered nurse at the
pediatric intensive care unit at the hospital – be allowed to testify as to statements Jared
made outside the courtroom. These statements implicated Petitioner as the cause of
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Shayleen’s injuries. The statements were allowed by the trial court—after Confrontation
Clause analysis—under the excited utterance and recent perception hearsay exceptions.1
Defendant’s counsel did not object contemporaneously to the introduction of this
evidence.
The trial judge found that he had “no difficulty” finding that Jared was
“unavailable,” as defined in Kan. Stat. Ann. § 60-459(g), that his statements were made at
a time when the matter had been recently perceived by him and his recollection was clear,
and that the statements were made in good faith prior to the commencement of the action
and with no incentive to falsify or distort. The trial court went on to say that its
determination did not end with this statutory analysis, but also required a constitutional
analysis because the unavailable witness rule was “not considered a firmly-rooted
exception to the hearsay rule,” and allowing hearsay would deny Petitioner her right to
confrontation under the Kansas and United States constitutions. The trial court engaged
in an analysis of the factors contained in Idaho v. Wright, 497 U.S. 805 (1990), and
concluded that the testimony was admissible. The testimony was allowed at trial, and a
conviction was ultimately obtained.
As part of its affirmation of the trial court’s ruling, the Kansas Supreme Court held
that under the doctrine of procedural default, this failure by Petitioner’s trial counsel to
1
Kan. Stat. Ann. § 60-460(d)(2), (3).
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object contemporaneously foreclosed any subsequent claim that the court improperly
allowed hearsay evidence at trial.
Petitioner sought several issues on appeal, but only two were granted review by
this Court: (1) whether admission of Petitioner’s unavailable minor child’s hearsay
statements violated the Confrontation Clause of the Sixth Amendment, and (2) whether
Petitioner’s trial counsel was ineffective through failing to object to hearsay to such a
degree that Petitioner’s Sixth and Fourteenth Amendment rights were violated.
IV. STANDARD OF REVIEW
The district court’s denial of Carr’s petition for habeas relief is reviewed de novo
with respect to legal conclusions and under a clear error standard for factual findings.
Rogers v. Gibson, 173 F.3d 1278, 1282 (10th Cir. 1999).
On review of habeas corpus determinations, the ruling below must be left
undisturbed unless an independent review of the record and pertinent federal law leads to
the conclusion that the ruling “contravenes or unreasonably applies clearly established
federal law, or is based on an unreasonable determination of the facts in light of the
evidence presented.” Aycox v. Lytel, 196 F.3d 1174, 1178 (10th Cir. 1999). Even if the
federal habeas court concludes in its independent review that the state court decision
applied clearly established federal law incorrectly, relief is appropriate only if the
application is also objectively unreasonable. Williams v. Taylor, 529 U.S. 362 (2000).
The court is not to re-weigh the evidence or substitute its judgment for the judgment of
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the court below, and is bound by a state court’s interpretation of its own law. Estelle v.
McGuire, 502 U.S. 62, 67-68 (1991). We proceed under this standard of review.
V. DISCUSSION
A. The Procedural Default Doctrine
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, and (2)
manifest injustice. Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Further, in order for the bar to preclude consideration of a federal claim on habeas
review, the state procedural rule must be: (1) independent, and (2) adequate. The 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 procedural bar. Church v. Sullivan, 942
F.2d 1501, 1506 (10th Cir. 1991) (relying upon Harris v. Reed, 489 U.S. 255 (1989)).
The rule is adequate if it is “strictly or regularly followed.” Johnson v. Mississippi, 486
U.S. 578, 587 (1988). This rule has been routinely followed in Kansas state courts. See
Kan. Stat. Ann. § 60-404. Here, the Kansas Supreme Court expressly declined to
consider the merits of this issue due to counsel’s failure to contemporaneously object.
Therefore, it is clear that the rule is both independent and adequate in this case.
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Petitioner concedes that because the Kansas Supreme Court held that Petitioner
procedurally defaulted her claim regarding Jared’s hearsay statements, the Petitioner faces
procedural default in this forum, unless she is able to show cause excusing the default, as
set forth in Coleman.
Petitioner argues that her trial counsel’s failure to contemporaneously object
amounts to ineffective assistance of counsel and that ineffective assistance satisfies the
Coleman test above. “Ineffective assistance of counsel . . . is cause for [reviewing] a
procedural default” of a state court procedure in federal habeas proceedings. Murray v.
Carrier, 477 U.S. 478, 488 (1986). Therefore, if the court finds that ineffective
assistance of counsel occurred, the procedural bar is lifted, and the court may reach the
merits regarding the admission of Jared’s hearsay statements. However, counsel error
that does not rise to the degree of ineffective assistance of counsel, may not amount to
cause to relieve a procedural default. “[T]he mere fact that counsel failed to recognize
the factual or legal basis for a claim, or failed to raise the claim despite recognizing it,
does not constitute cause for a [review of] procedural default.” Id. at 486.
Aside from Petitioner’s claim of ineffective assistance of her trial counsel, Plaintiff
has not raised grounds establishing that the Coleman factors are met in this case,
especially in light of the significant and persuasive evidence presented at trial, when
viewed in its totality. We, therefore, turn to Petitioner’s claim of ineffective assistance of
counsel as it relates to satisfaction of the otherwise-applicable procedural bar in this case.
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B. Ineffective Assistance of Counsel
Petitioner argues that she received ineffective assistance of trial counsel in
violation of her Sixth and Fourteenth Amendment rights. This contention is based on the
fact that trial counsel failed to preserve the issue of admissibility of Jared’s hearsay
statements by failing to lodge a contemporaneous objection to the admission of those
statements at trial.
To demonstrate ineffectiveness of counsel, Petitioner must generally show: (1)
that counsel’s performance fell below an objective standard of reasonableness (i.e.
deficient), and (2) that counsel’s deficient performance was prejudicial. Strickland v.
Washington, 466 U.S. 668, 687, 690) (1984), cited by United States v. Lopez, 100 F.3d
113, 117 (10th Cir. 1996). In order to meet the first element, there must be “a showing
that counsel made errors so serious that counsel was not functioning as the ‘counsel’
guaranteed by the Sixth Amendment.” Strickland, 466 U.S. at 687. Petitioner must show
that her counsel’s conduct did not fall within the range of competence demanded of an
attorney in a criminal case. Id. at 689; United States v. Carr, 80 F.3d 413, 417 (10th Cir.
1996). However, courts are to review such claims with a strong initial presumption that
counsel conduct falls within this acceptable range, thereby eliminating the “distorting
effects of hindsight.” Strickland, 466 U.S. at 688-89; Carr, 80 F.3d at 417. With regard
to the second element, Petitioner must show that counsel’s errors were “so serious as to
deprive [her] of a fair [proceeding in which the] result is reliable.” Strickland, 466 U.S.
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at 687. The element is satisfied when there is a “reasonable probability that, but for the
alleged errors, the results of the proceedings would have been different.” Id. at 695.
Petitioner’s argument that counsel rendered ineffective assistance through failure
to preserve the hearsay argument through contemporaneous objection does not rise to a
violation of the Sixth Amendment in this instance. Petitioner has failed to show that the
introduction of the statements were so prejudicial as to change the outcome of the trial.
Petitioner has not met the second prong of the Strickland analysis. Because Petitioner
fails to show ineffective assistance of counsel, Petitioner also fails to show counsel’s
actions rose to such a level of error so as to remove the procedural bar.
Having held that the procedural bar applies to this case, the Court will not further
consider Petitioner’s remaining claim regarding hearsay.
VI. CONCLUSION
For the reasons set forth above, we affirm the district court’s decision and find that
Petitioner’s Sixth and Fourteenth Amendment rights were not violated by her counsel’s
failure to contemporaneously object to the admission of her son’s statements.
For the foregoing reasons, the district court’s denial of Petitioner’s § 2255 habeas
petition is AFFIRMED.
Entered for the Court
Ted Stewart
District Judge
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No. 03-3336, Carr v. Koerner
BRISCOE, Circuit Judge, concurring.
In my view, Carr is not procedurally barred from challenging the admission of
Jared’s out-of-court statements. However, I conclude the admission of those statements,
even if improper, was harmless. I therefore agree with the majority that the district court
properly denied Carr’s habeas petition.
I.
Carr contends the trial court violated her rights under the Fifth, Sixth, and
Fourteenth Amendments when it admitted into evidence out-of-court statements made by
Jared to Adella Ozor, a state-employed social worker/investigator, and Jenny McCracken,
a registered nurse who worked in the pediatric intensive care unit where Shayleen stayed
immediately prior to her death. Carr first raised this issue on direct appeal. The Kansas
Supreme Court, in addressing the issue, began by outlining the precise nature of the
challenged statements:
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.
State v. Carr, 963 P.2d 421, 430 (Kan. 1998).
The Kansas Supreme Court ultimately concluded the issue was not adequately
preserved for appellate review:
The State contends that the defendant failed to object at trial and
therefore the issue of admissibility is not properly before us. The record
supports this contention. A hearing outside the presence of the jury was held
on whether Jared was competent to testify, and the court ruled that he was
not. As a result, the court held a hearing at the request of the State as to
whether certain hearsay statements could be admitted. After a thorough
hearing, the court reserved ruling on the issue pending further consideration
of the parties’ arguments and authorities. Three days later, the court ruled
that the hearsay testimony was admissible under K.S.A. 60-460(d)(2) and
(3). On the second day after the court’s ruling, the hearsay statements were
introduced without the objection of the defendant.
At the time these statements were admitted at trial, no contemporaneous
objection was made by the defendant. The defendant contends that her
objection to the testimony was sufficiently noted, citing State v. Bowman,
252 Kan. 883, 887-88, 850 P.2d 236 (1993). In Bowman, we held that a
defendant satisfied the contemporaneous objection rule when he objected
prior to the testimony and the testimony was then admitted directly
afterward. 252 Kan. at 888, 850 P.2d 236. However, the facts in this case
are quite different. Here, a full 2 days of trial elapsed before the State
attempted introduction of the statements. We have held that the failure to
timely object at trial to alleged hearsay statements precludes the defendant
from raising the issue on appeal. State v. Stafford, 255 Kan. 807, 810-11,
878 P.2d 820 (1994). Moreover, we have held that when an unfavorable
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ruling on an evidentiary question is received prior to trial, the party must
make a timely objection to such evidence when it is introduced at trial in
order to preserve the issue for appeal. State v. Peckham, 255 Kan. 310, 327,
875 P.2d 257 (1994).
While we acknowledge that the ruling on admissibility of the hearsay
statements occurred during rather than prior to trial, a full 3 days elapsed
between the ruling and the actual introduction of the evidence. Under the
circumstances, in the absence of a contemporaneous objection, the question
of admissibility of the hearsay statements was not preserved for review and
may be deemed to have been waived by the defendant.
Carr, 963 P.2d at 430-31.
In light of the Kansas Supreme Court’s ruling, respondent contends the issue is
procedurally barred for purposes of federal habeas review. We will not review a state
habeas petitioner’s claims if they were defaulted in state court on independent and
adequate state procedural grounds, unless the petitioner can demonstrate cause and
prejudice or a fundamental miscarriage of justice. Smith v. Mullin, 379 F.3d 919, 925
(10th Cir. 2004). Here, the rule cited by the Kansas Supreme Court in Carr was clearly
independent, because it was based exclusively on Kansas state law (i.e., the Kansas
Supreme Court’s own decisions concerning when an objection must be asserted to the
admission of evidence in order to preserve the issue for purposes of appeal). See Smith,
379 F.3d at 925 (“Independent state procedural grounds are those that rely exclusively on
state law as a basis of decision.”). The more troublesome question is whether the rule was
“adequate.” Under Tenth Circuit case law, a state procedural rule is considered
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“adequate” if it is “consistently and evenhandedly . . . applie[d]” by the state courts at
issue. Id.; State v. Mays, 85 P.3d 1208, 1225 (Kan. 2004) (applying same rule).
At the time of Carr’s trial, it was well established, both by statute and by rulings
from the Kansas Supreme Court, that a specific and timely objection to the admission of
evidence was necessary to preserve the issue for appeal. E.g., Kan. Stat. Ann. § 60-404
(“A verdict . . . shall not be set aside . . . by reason of the erroneous admission of evidence
unless there appears of record objection to the evidence timely interposed and so stated as
to make clear the specific ground of objection.”). With regard to the timeliness
requirement, the general rule appeared to be that a defendant had to assert an objection at
trial in order to preserve an issue for appeal. For example, in State v. Peckham, 875 P.2d
257, 270 (1994), the Kansas Supreme Court held that “[w]hen an unfavorable ruling on an
evidentiary question prior to trial is received, a party must make a timely objection to such
evidence when introduced at trial in order to preserve the issue for appeal.” Thus, even
though the defendant in Peckham filed a motion in limine objecting to the admission of
certain evidence and received an unfavorable pretrial ruling on that motion, the Kansas
Supreme Court held that he subsequently waived the issue for purposes of appeal by
failing “to make a contemporaneous objection during trial as the evidence objected to was
introduced.” Id. (emphasis added); see also State v. Johnson, 899 P.2d 1050 (Kan. 1995)
(concluding that admission of defendant’s confession was not reviewable on appeal where
defense failed to renew objection during trial); State v. Alford, 896 P.2d 1059 (Kan. 1995)
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(holding that admissibility of written statement not properly before the court on appeal
where defense asserted a pretrial objection, but failed to object during trial); State v.
Johnson, 874 P.2d 623 (Kan. 1994) (holding that failure to object to evidence at trial did
not preserve issue denied in earlier motion in limine).
What was unclear under Kansas law, however, was precisely how close in time to
the admission of the evidence at trial the objection had to be made. Stated differently, it
was unclear whether an objection asserted at some point during trial was sufficient to
preserve the issue, or whether, instead, an objection had to be made at or very near the
time the evidence at issue was actually admitted. Here, the prosecution proposed
introducing Jared’s out-of-court statements on the second day of trial (9/18/96). At that
time, Carr’s trial counsel vigorously opposed the admission of those statements. The trial
court subsequently conducted a hearing on the issue on the fourth day of trial (9/20/96),
out of the presence of the jury. Carr’s trial counsel again vigorously opposed admission of
the out-of-court statements. On the fifth day of trial (9/23/96), the trial court ruled on the
issue, concluding the out-of-court statements were admissible under Kansas law and were
sufficiently reliable for constitutional purposes. Two days later, the seventh day of trial
(9/25/96), the prosecution actually introduced Jared’s out-of-court statements. Carr’s trial
counsel asserted no objection at that time. Presumably, Carr’s trial counsel concluded,
based upon existing Kansas law, that it was unnecessary to again object to the evidence,
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since he had already voiced specific objections thereto and the issue had been conclusively
ruled on by the trial court.
In Carr, the Kansas Supreme Court effectively adopted a new requirement for
preserving an objection to the admission of evidence: not only must a defendant assert his
or her objections at trial, he or she must do so at the precise time the objected-to evidence
is introduced. In other words, the Kansas Supreme Court held that it was not enough, as
was the case here, for a defendant to assert specific objections to evidence at some other
point during trial and receive a conclusive ruling on the objections from the trial court.
Instead, the Court held, under such circumstances a defendant must reassert his or her
objections at the time the evidence is actually introduced, even if doing so amounts to a
perfunctory act. Notably, in adopting this position, the Kansas Supreme Court cited to no
prior Kansas decisions in which a similar rule had been applied.
In light of the fact that the rule applied by the Kansas Supreme Court in Carr had
never previously been announced or applied, I conclude the rule cannot be considered a
“firmly established and regularly followed state practice” for purposes of the procedural
bar issue in these federal habeas proceedings. James v. Kentucky, 466 U.S. 341, 348
(1984); see Messer v. Roberts, 74 F.3d 1009, 1016 (10th Cir. 1996) (concluding that
procedural rule applied by Kansas Supreme Court, requiring a defendant who
unsuccessfully moved to suppress evidence prior to trial to reassert his or her objection at
trial, “was not so firmly established and regularly followed to constitute a bar” for
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purposes of federal habeas review). In turn, I conclude that Carr is not procedurally barred
in these federal habeas proceedings from challenging the admission of Jared’s out-of-court
statements.
II.
I now turn to Carr’s objection to the admission of Jared’s out-of-court statements,
applying a de novo standard of review. See Turrentine v. Mullin, 390 F.3d 1181, 1189
(10th Cir. 2004) (outlining the standard of review “where the state court has not previously
heard a habeas claim on the merits”). Carr’s central objection to the admission of the
statements is that her rights under the Sixth Amendment’s Confrontation Clause were
violated. At the time of Carr’s trial and her direct appeal, Ohio v. Roberts, 448 U.S. 56
(1980), was the primary Supreme Court case regarding “the relationship between the
Confrontation Clause and the hearsay rule . . . .” Id. at 62. In Roberts, the Supreme Court
held that “when a hearsay declarant is not present for cross-examination at trial, the
Confrontation Clause normally requires a showing that he is unavailable.” Id. at 66.
“Even then,” the Court noted, “his statement is admissible only if it bears adequate ‘indicia
of reliability.’” Id. According to the Court, “[r]eliability can be inferred without more in a
case where the evidence falls within a firmly rooted hearsay exception.” Id. “In other
cases,” the Court held, “the evidence must be excluded, at least absent a showing of
particularized guarantees of trustworthiness.” Id.
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The trial court in Carr’s case correctly determined that Roberts provided the
controlling framework for its analysis of whether Jared’s out-of-court statements were
constitutionally admissible. In applying Roberts, the trial court first concluded that Jared
was “unavailable” to testify because, in the trial court’s view, he was incapable of
expressing himself concerning the matters at issue or understanding the duty of a witness
to tell the truth. App., Vol. V at 4. Second, the trial court concluded that Jared’s out-of-
court statements were admissible under Kansas law, i.e., Kan. Stat. Ann. § 60-460(d)(3)
(providing that an out-of-court statement is admissible if “the judge finds [it] was made . .
. by the declarant 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”). Because,
however, the trial court concluded that the exception relied upon under Kansas law was
“not a firmly-rooted hearsay exception” for purposes of Roberts, id. at 5-6, it proceeded to
analyze whether Jared’s out-of-court statements contained adequate indicia of reliability
and particularized guarantees of trustworthiness. Id. at 6-7. In doing so, the trial court
stated:
The Court notes that the statements occurred one day and five days after
Shayleen’s injury, or at least the final injury that sent her to the hospital. The
Court notes that the language and vocabulary attributed to Jared is
appropriate for that of a four-year-old child. The Court notes that the
statements made by Jared were made about his mother, whom you would
expect Jared would have had a good relationship with. The Court notes that
Jared’s statements are corroborated by evidence in this case in that we know
Jared was in the house at the time of the injury, and perhaps even in the same
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bedroom. The Court notes that the statements about Shayleen’s injuries are
certainly corroborated by all of the physical evidence we have in this case as
to Shayleen’s injuries. The Court notes that there is really no evidence of
anyone influencing Jared to distort the event, especially in the short time
between the event and the statements. * * * The Court notes consistent
repetition with Jared’s statements. * * * As to spontaneous nature, I’d like to
break down the two statements in particular. First of all, the statements
made to Adella Ozor on September 8th. It can’t be said that that statement is
spontaneous. It was the result of an interview. But, the Court notes that the
questions certainly weren’t leading, and the Court also notes that [Jared]
volunteered a lot of information and expanded over what was asked of him.
* * * So, in summary, although those remarks were made as a result of an
interview, the Court finds that the questions were not leading, and a lot of
[Jared’s] responses were volunteered and expanded upon the specific
question that was asked of him. Turning to the statement in the hospital
room on September 12th, the Court notes that that statement is somewhat
spontaneous. The evidence indicated that Jared was just in the hospital and,
suddenly, he threw a doll down on the floor and said something like “Look,
the doll’s eyes don’t roll back like Shayleen’s did.” No one had even been
talking about anything like that when Jared did that. * * * In the final
analysis, the Court needs to make a judgment on trustworthiness, to
determine if any hearsay evidence should be admitted, regardless of what the
exception might be. For all the reasons I’ve stated, the Court finds that the
two particular statements we’re talking about contain adequate indicia of
reliability and particularized guarantees of trustworthiness . . . .
Id. at 7-11. Based upon these findings, the trial court concluded that the out-of-court
statements were admissible under Roberts. Id. at 11.
In addressing Carr’s appeal of the denial of his § 60-1507 motion, the Kansas Court
of Appeals concluded, after reviewing the record, that it was “clear that the [trial] court’s
action in admitting these [out-of-court] statements was not arbitrary, fanciful, or
unreasonable, but was made after careful consideration of the issue.” Id., Vol. XIII at 203.
In reaching this conclusion, however, it is obvious that the Kansas Court of Appeals was
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only applying the abuse of discretion standard applicable under Kansas law when a
defendant challenges the admission of evidence under Kansas state law. E.g.,State v.
Jenkins, 39 P.3d 47, 56 (Kan. 2002) (“The admission of evidence lies within the sound
discretion of the trial court.”). Importantly, there is no indication that the Kansas Court of
Appeals actually addressed, or intended to address, Carr’s Sixth Amendment challenge to
admission of the out-of-court statements.
Addressing that issue de novo, I conclude there was at least one significant flaw in
the trial court’s analysis of whether the out-of-court statements were reliable. As the trial
court’s statements on the record indicate, it placed heavy reliance on the fact that the out-
of-court statements were corroborated by (1) “evidence in this case in that we know Jared
was in the house at the time of the injury, and perhaps even in the same bedroom,” and (2)
“all of the physical evidence we have in this case as to Shayleen’s injuries.” App., Vol. V
at 7-8. The problem with this reliance on corroborating evidence is that it is contrary to
the decision in Idaho v. Wright, 497 U.S. 805 (1990). In Wright, the Supreme Court held
that corroborating evidence cannot be used to support the reliability of a hearsay statement
for purposes of the Roberts analysis. Id. at 822. More specifically, the Court emphasized
that, “[t]o be admissible under the Confrontation Clause, hearsay evidence used to convict
a defendant must possess indicia of reliability by virtue of its inherent trustworthiness, not
by reference to other evidence at trial.” Id. Thus, one of the substantial bases relied upon
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by the trial court in concluding that the out-of-court statements at issue were reliable was
improper.1
Assuming, then, that the admission of Jared’s out-of-court statements was contrary
to Roberts and thus violated Carr’s rights under the Confrontation Clause, the question is
whether the resulting error entitles Carr to federal habeas relief. “[T]he appropriate
harmless error standard to be applied on habeas review is from” Brecht v. Abrahamson,
507 U.S. 619 (1993). Webber v. Scott, 390 F.3d 1169, 1177 (10th Cir. 2004). Under
Brecht, federal habeas relief is not proper unless the error had a “substantial and injurious
effect or influence in determining the jury’s verdict.” 507 U.S. at 623.
Applying that standard here, I conclude the admission of Jared’s out-of-court
statements was, indeed, harmless. The prosecution’s case-in-chief against Carr lasted for
approximately six days and included approximately sixteen witnesses. One witness, a
long-time friend of Carr, testified that Carr was a strict disciplinarian with Shayleen and
Jared, and on one occasion stated that “to get the kids’ attention she had to hurt them.”
App., Vol. II at 156. Three fact witnesses, a nurse who worked at the minor emergency
center where Carr first took Shayleen and two emergency medical workers who
transported Shayleen from there to the hospital, testified that they observed bruises on
1
Taking away the trial court’s reliance on corroborating evidence leaves only (a)
the relative spontaneity of the statements, (b) the fact that they occurred relatively close in
time to the injuries sustained by Shayleen, and (c) the fact that the language and
vocabulary used by Jared appeared consistent with that generally used by a four-year-old
child.
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Shayleen’s ears, neck, elbow, and lower right leg, as well as blood in the corner of
Shayleen’s mouth. Id., Vol. X at 6, 31, 40. Two of these same witnesses testified that
Carr was very quiet and unemotional, and did not ask any questions about what was
happening to Shayleen, all of which, in their experiences, was atypical. Id. at 7, 32. Two
different fact witnesses, a detective with the Wichita Police Department and a social
worker and investigator with the Kansas Department of Social and Rehabilitation Services,
testified that they separately interviewed Carr after Shayleen was admitted to the hospital.
During both interviews, Carr admitted (after first indicating that Shayleen had merely
rolled off her bed onto the floor) to having spanked and shaken Shayleen out of frustration
that Shayleen had refused to take a nap. Id., Vol. II at 80-82, 94, 100–02. Three
physicians, two of whom saw Shayleen after she was admitted to the hospital and prior to
her death, and one whom performed the autopsy on her following her death, testified about
her injuries. All three agreed that Shayleen was the victim of “shaken impact” or “shaken
baby blunt trauma” syndrome, in which a child is shaken against a fixed surface such as a
floor or wall. Id., Vol. III at 69, 92, 150, 168. Their opinions were based on the
constellation of symptoms exhibited by Shayleen and the results of medical testing and
autopsy (with particular emphasis placed upon the fact that Shayleen exhibited significant
retinal and subdural hemorrhaging).
In her defense, Carr presented seven witnesses. Four of these witnesses were state
employees who were involved with the Carrs’ adoption of Jared and Shayleen. None of
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these witnesses had any knowledge about the events in question; instead, they simply
testified to what they observed at the Carr household in the general time period prior to
Shayleen’s death. One of the witnesses was Carr’s husband (now ex-husband), who
testified that Carr was a nurturing and caring mother who, in his experience, had never
been violent with their children. Carr also called Shayleen’s pediatrician as a defense
witness. He testified that, during his visits with Shayleen, he observed no pattern of abuse.
Finally, Carr presented testimony from the associate medical examiner of Palm Beach
County, Florida. He disagreed with the prosecution’s expert witnesses that Shayleen was a
victim of shaken impact syndrome. App., Vol. VI at 71-75. Instead, he opined that
Shayleen died from a “remote subdural hematoma,” i.e., a subdural hematoma that had
occurred sometime previously in Shayleen’s life, and that had “re-bled,” perhaps as a
result of Shayleen falling out of bed. Id. at 12, 31, 96.
In rebuttal, the prosecution presented testimony from two additional doctors who
consulted on Shayleen’s case after her admission to the hospital. The first doctor testified,
in contrast to the defense expert, that Shayleen had not suffered from any subdural
hematomas. Id., Vol. VIII at 107. He further testified that there were far more bruises on
Shayleen’s body than would be expected from a normal, active child. Id. at 104. The
second doctor, an ophthalmologist specializing in retinal diseases, testified that retinal
hemorrhaging, such as that observed in Shayleen, “almost always” occurs as a result of
head trauma. Id. at 116-17. Finally, the prosecution presented testimony from a
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paramedic that none of the bruises on Shayleen’s body occurred as a result of the
paramedics’ handling of her prior to her admission to the hospital (this was in response to
a suggestion by Carr’s husband that the paramedics were rough with Shayleen). Id. at
132-33.
During deliberations, the jury asked to have the testimony of three witnesses reread
to them. All three of these witnesses (Carr’s husband, a nurse who was on duty at the time
Shayleen arrived at the minor emergency center, and a paramedic who helped transport
Shayleen from the minor emergency center to the hospital) testified regarding the extent of
bruising that was apparent on Shayleen’s body at the time she initially arrived at the minor
emergency center. Thus, in arriving at its verdict, it appears that a central focus of the jury
was whether Shayleen had, in fact, been physically abused by Carr prior to her arrival at
the minor emergency center.
Although Jared’s out-of-court statements certainly lent support to the prosecution’s
theory that Shayleen’s injuries occurred as a result of abuse by Carr, I am not persuaded
they were a pivotal piece of evidence in the case. Rather, the statements merely helped to
verify what the prosecution’s evidence (particularly the physical evidence of Shayleen’s
injuries and the opinions of the prosecution’s physicians) otherwise strongly suggested,
i.e., that Carr not only spanked and shook Shayleen, but also at some point struck her head
against a hard object (verified by Jared to be the floor of their house). In the end, given
the weight of the evidence against Carr, much of which corroborated Jared’s out-of-court
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statements, I conclude the admission of the statements did not have a “substantial and
injurious effect or influence in determining the jury’s verdict.” Brecht, 507 U.S. at 623.
III.
I also conclude there is no merit to Carr’s ineffective assistance of counsel claim.
Because the “contemporaneous objection” rule announced by the Kansas Supreme Court
in Carr was not firmly established and regularly followed at the time of Carr’s trial, Carr’s
trial counsel cannot be faulted for failing to restate his objections to the out-of-court
statements at the precise time they were admitted, since he had already specifically voiced
those objections during trial and the trial court, after hearing evidence and argument, had
conclusively ruled on the issue. See generally Strickland v. Washington, 466 U.S. 668,
687 (1984) (discussing first prong of the test for ineffective assistance of counsel). Nor,
for the reasons outlined above, can Carr establish prejudice arising out of her counsel’s
failure to object to the out-of-court statements at the precise time they were admitted. See
id. at 694 (discussing second prong of test).
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