IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
October 13, 2008
No. 07-30709
Charles R. Fulbruge III
Clerk
BRUCE TAYLOR
Petitioner - Appellee
v.
BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY
Respondent - Appellant
Appeal from the United States District Court
for the Eastern District of Louisiana
Before HIGGINBOTHAM, STEWART, and SOUTHWICK, Circuit Judges.
SOUTHWICK, Circuit Judge:
Warden Burl Cain appeals the district court’s grant of habeas relief to
inmate Bruce Taylor. We affirm.
FACTUAL BACKGROUND AND STATE CONVICTION
Bruce Taylor was convicted by a jury of second-degree murder of Leroy
Batiste and sentenced to life in prison without parole. See generally State v.
Taylor, No. 2002-KA-0385, slip op. at 1-9 (La. Ct. App. 2002).
In New Orleans on May 4, 2001, Leroy Batiste was shot in the leg. After
an investigation, Anthony and Alfred Moliere – Petitioner Taylor’s brothers –
were arrested in connection with the shooting. They were released after the next
No. 07-30709
shooting we describe. Batiste’s mother testified that animosity existed between
the Molieres and her son because of a dispute over a borrowed screwdriver.
Ten days after Batiste was wounded, New Orleans police again answered
a call about a shooting. Leroy Batiste was found unresponsive and bleeding,
having sustained six gunshot wounds. At least two of the gunshot wounds were
fatal, causing Batiste to die of “spinal cord shock.”
Detective Fred Bates investigated the homicide. By the time Bates arrived
on the scene, the victim had been taken to the hospital. The victim’s vehicle had
three bullet holes in it from the shooting ten days before. Seven .380 caliber
cartridge casings, made by two different manufacturers, were recovered at the
scene. An eighth casing was discovered the next day.
While at the scene the day after the murder, Bates said a citizen slipped
him a note indicating he wanted to talk with the officer – elsewhere. Bates
spoke with that person several blocks from the scene. Due to hearsay objections,
testimony on what Bates was told was minimal and elliptical. We do know that,
based on the conversation with the individual, Bates developed Bruce Taylor as
a suspect and prepared a photo lineup. Bates’s testimony about this witness,
unnamed and of course not cross-examined, is the claimed error in this case.
According to Bates, another witness to the crime, Osborne Parker, also
came forward. Parker identified Taylor by name, saying he had grown up with
him. Bates showed Parker the photo lineup he had prepared, and Parker
immediately selected Taylor’s photo. A search of Taylor’s home did not yield any
weapons or clothing connected to the case.
At trial, Parker testified that he once lived near both Taylor and the victim
Batiste. He had known Taylor almost his entire life, but they were not close
friends. Batiste had not been a good friend, either. According to Parker, on the
night of the murder, he saw Taylor sitting in his doorway. Parker was looking
for his friend Keyoka Riley. He asked Taylor if he had seen her. Taylor replied
2
No. 07-30709
that he had not seen her, and then told Parker that “I’m just kind of messed up,”
“I’m just kind of fu---- up right now in the head.”
Parker found Keyoka Riley, and they walked to a store across the highway.
On the way back, Parker heard gunshots. He looked towards the sounds and
saw someone standing over the victim and shooting. The shooter ran through
a cut in the apartment complex, but he was not running towards Taylor’s
apartment, which was perhaps two apartment buildings away from the scene of
the shooting. Parker said he went to his own apartment immediately after the
shooting to telephone the police, then went back to comfort the victim, who was
still conscious.
Parker described the perpetrator as wearing the same clothing that he had
just seen the Defendant wearing – black jeans and a dark shirt, with a bandana
around his neck. He admitted that he did not immediately recognize the
Defendant. Twenty minutes after the shooting, Parker saw Taylor again. It
was at that time that he “thought about it,” i.e., that the shooter might have
been Taylor. By this time, Taylor was wearing a white shirt and shorts. Taylor
said he had been in the shower at the time of the shooting. Parker felt that
Taylor’s shower explanation seemed contrived. In light of what had happened
between Batiste and the Defendant’s brothers, he thought Taylor was lying.
Parker conceded on cross examination that the shooter only “basically”
looked like the Defendant. When asked whether that meant the shooter looked
like the Defendant, was “similar” to him, “could have been” him, or “maybe” was
him, Parker replied “[a]ll of that.” When pushed as to how definite he was,
Parker said that “it was him.” Defense counsel pointed out that “basically” did
not mean “it was him,” to which Parker responded, “okay.”
Although Parker gave his name to police when he called 911 immediately
after the shooting, he spoke to no officers at the scene. He told no one that night
that Taylor was the shooter. Parker testified on redirect examination that he
3
No. 07-30709
did not contact Detective Bates immediately because he did not want to get
involved and because he felt that the police would solve the crime, considering
the “feuding” between Bruce Taylor’s brothers and the victim.
Parker admitted that the district attorney’s office gave him money to rent
a house. He denied that was why he got involved in the case. Parker stated that
he did not want to get involved in the first place. He emphasized that he had
seen the victim dying on the ground and that it had greatly disturbed him. That
experience is what prompted his action.
At the time of the shooting, Osborne Parker lived with Keyoka Riley in
Riley’s mother’s apartment. Riley confirmed Parker’s testimony that they had
gone to the store and heard shots on their way back. Riley stated that Parker
ran into their apartment, entered before her, and held the door open for her to
bring in her daughter. But Riley testified that she did not see anyone shooting
and did not believe Parker could have seen anything from where they were. She
also stated that if Parker had seen a person, he could not have made an
identification because of darkness. She said that Parker never told her that he
saw Bruce Taylor shoot the victim, despite the fact that they generally talked
about everything. Significantly, Riley also indicated that she did not think it
was a good idea for Parker to testify. In addition, Parker testified on rebuttal
that Riley told him that she was going to testify for the defense because she did
not want anything to happen to Parker.
Taylor lived in an apartment with his parents and his two brothers. His
parents and fiancée testified as alibi witnesses. These witnesses supported
Taylor’s explanation that he had been in the shower when they learned from
someone else about the shooting. Testimony varied about how long a witness
could confirm Taylor was in the apartment, though one witness said he had been
there from a time long before the shooting.
A jury convicted Taylor of second-degree murder. He was sentenced to life
4
No. 07-30709
in prison without parole. The Louisiana Court of Appeal affirmed, and the
Louisiana Supreme Court denied his writ applications.
POST-CONVICTION PROCEEDINGS
Taylor filed an application for state postconviction relief, which was
denied. His subsequent applications to the state intermediate court and
supreme court for supervisory writs and review were denied.
Having pursued relief in the Louisiana state courts, Taylor turned to
federal court on March 28, 2006, when he filed a habeas petition pursuant to 28
U.S.C. § 2254. Taylor raised several claims, including that “the [trial court]
erred in allowing the State to admit and argue as substantive evidence the
hearsay statements of eyewitnesses.” Taylor’s hearsay claim is based on
Detective Bates’s testimony about the mystery witness who slipped him a note
at the scene. A hearsay objection was made to the questioning, but it was
rejected. This is the relevant part of Detective Bates’s testimony:
A. . . . I did receive a note saying that someone wanted to speak to
me. The person did not want to talk to me on the scene due to the
fact that, again, this is a scatter site area where everybody knows
everybody and to be seen talking to the police in some instances is
not – not kosher in the neighborhood. So I got in my vehicle, went
approximately three to four blocks away from the area where I could
not be seen, had a conversation with an individual and during this
conversation, learned some information. I took this information that
I learned and from that information was able to develop a suspect.
Q. And Detective, as per this end of your investigation, what was
the name of your suspect?
A. First name only was Bruce. The description given was he is
one of the brothers of the Molieres. . . .
A . . . This description that I got . . . was only the fact that the
perpetrator was Bruce . . . .
In addition to the testimony, error is also alleged in referring to the
testimony in the prosecutor’s rebuttal argument. The prosecutor was responding
5
No. 07-30709
to a defense argument that there was no corroboration of Osborne Parker’s
arguably inconclusive identification of Taylor as the assailant:
Prosecutor: Now, corroboration? You want corroboration? [Defense
counsel] seems to forget one little detail in the investigation of this
case. Detective Bates told you that he spoke to several people . . .
within the days following–
Def. counsel: I’m gonna object if he’s gonna be talking about what
anybody said to this officer that’s not here today.
Court: He has a right to make his argument, Mr. Meyer. I do not
know what he’s going to say. . . . All right, proceed.
Prosecutor: Detective Bates spoke to three people before he even
spoke to Osborne Parker. He began his investigation. He posted up
his cards. He did everything that he sat here and explained all very
frankly to you what he did. What we forget and what’s easy to
overlook is that Detective Bates developed the name of a suspect
before he had any idea who Osborne Parker was. He had the name
Bruce Taylor already. . . . In this case we had a suspect and it was
corroborated by Osborne Parker.
The defense objected again and was again overruled.
The State filed an answer to the habeas petition, addressing Taylor’s
claims on the merits and specifically noting that “[r]eview of the record shows
that these issues are exhausted.” The admission about exhaustion was limited
to the Defendant’s arguments based solely on hearsay issues, not to exhausting
a constitutional challenge based on the Confrontation Clause.
The magistrate judge recommended that Taylor’s claims be rejected and
that the petition be dismissed. With regard to Taylor’s hearsay evidence claim,
the magistrate judge noted that, although federal habeas relief is not available
to correct state evidentiary errors, Taylor’s claim implicated his Sixth
Amendment rights under the Confrontation Clause. The “implication” was
something first raised in this case by the magistrate, who nonetheless concluded
that Taylor had not met the Section 2254(d)(1) requirement that relief only be
6
No. 07-30709
granted “if petitioner demonstrates that the state court decision was contrary to,
or involved an unreasonable application of, clearly established federal law as
determined by the Supreme Court.” The magistrate judge did not conclude that
the trial court’s error was a critical or significant enough factor in the course of
the entire trial to warrant habeas relief.
The district court adopted the magistrate judge’s report and
recommendation, “except with respect to the recommendation on Petitioner’s
claim regarding the admission of hearsay evidence.” The district court concluded
that the hearsay evidence presented by Detective Bates was crucial to the State’s
conviction. The court noted that no physical evidence linked Taylor to the crime,
and that Parker’s testimony “was equivocal at best.” Accordingly, the court
found that Taylor’s Sixth Amendment Confrontation Clause rights were clearly
violated, and that the admission of the hearsay evidence was not harmless,
resulting in a fundamentally unfair trial. Accordingly, the court granted
Taylor’s habeas petition.
The State moved for an amendment or alteration of the judgment.
Included was an argument that, because Taylor had not raised a Confrontation
Clause or any other federal constitutional claim in state court, those claims were
unexhausted. The district court denied the motion without explanation.
The State timely appealed the judgment to this Court.
DISCUSSION
Our review occurs in two steps. First, we analyze the issues that arise
from the need to present, i.e., “exhaust,” claims in state court first. Finding no
bar to proceeding, we then examine the merits of the constitutional issue.
A. Exhaustion
This case presents both the question of whether Taylor has properly
exhausted his claim and also the analytically prior question of whether the State
waived or forfeited the exhaustion requirement.
7
No. 07-30709
Exhaustion is a statutory obligation on petitioners who seek federal
habeas relief to present and pursue all claims in state court prior to requesting
federal collateral relief. 28 U.S.C. § 2254(b). Even when the inmate presents to
the state court all the relevant facts and makes a related state-law claim, there
is no exhaustion unless he “asserts the claim in terms so particular as to call to
mind a specific right protected by the [federal] Constitution or alleges a pattern
of facts that is well within the mainstream of constitutional litigation.” Kittelson
v. Dretke, 426 F.3d 306, 315 (5th Cir. 2005) (quotations and citation omitted).
This means that a petitioner must alert the state courts to the “federal nature”
of the claim. Baldwin v. Reese, 541 U.S. 27, 33 (2004).
An issue, such as exhaustion, that an appellant could raise to justify
reversal may be waived. We recognize that the term “waiver” may mean
different things in the context of procedural exhaustion. The State may fail to
raise the non-exhaustion defense; the State may instead expressly waive any
challenge on exhaustion grounds by conceding that the petitioner exhausted the
claims in state court. The second type is not at issue here, even though the State
in its habeas response initially conceded that Taylor had exhausted. We do not
find an express waiver because the State was conceding exhaustion only as to
the “alleged introduction of inadmissible hearsay testimony,” which was the
claim Taylor made before the Louisiana state courts and in his federal habeas
petition. The State has not expressly waived exhaustion as to Taylor’s
Confrontation Clause claim. In fact, it raised the defense in a motion after the
district court had recast Taylor’s claim as a Confrontation Clause issue.
As to waiver by a party’s failure to raise an issue, it is important that
Congress provided that a state shall not be deemed to have made an implicit
waiver of an inmate’s obligation to exhaust or be estopped from asserting such
a defect; waiver of the exhaustion requirement must be expressly made by
counsel. 28 U.S.C. § 2254(b)(3).
8
No. 07-30709
Considering the importance of exhaustion in the statutory scheme for post-
conviction relief in federal court from a state inmate’s conviction, and in light of
the briefing that has been presented on the issue after oral argument, we
conclude that there has been no waiver.
The relevant exhaustion inquiry is whether Taylor fairly presented the
federal constitutional issue to the state courts on direct appeal.1 This court
reviews de novo the legal question whether a federal habeas petitioner has
exhausted his claims. Morris v. Dretke, 413 F.3d 490, 491 (5th Cir. 2005).
The argument that Taylor did not raise a federal constitutional claim is a
reasonable one. Taylor’s filings in the state court never explicitly mention the
federal Constitution. His brief before the Louisiana Court of Appeal framed the
claim in hearsay terms: “The Trial Court erred in allowing the State to admit
and argue as substantive evidence the hearsay statements of eyewitnesses.”
Taylor cited the state’s evidentiary code and state cases in support.
While Taylor did not label his claim as a federal constitutional one, his
brief made the type of arguments that support a Confrontation Clause claim.
Taylor complained that the prosecution relied heavily on hearsay testimony to
corroborate Osborne Parker’s hesitant identification, arguing “[i]n effect, the
State received the benefit of eyewitness testimony corroborating Parker’s story,
without the danger of cross-examination and impeachment.” Further, Taylor
cited a passage from a Louisiana Supreme Court case criticizing the use of
“explanation of the officer’s actions” as a hearsay exception to allow admittance
of “an out-of-court declaration when the so-called ‘explanation’ involves a direct
assertion of criminal activity against the accused.” State v. Hearold, 603 So. 2d
731, 737-38 (La. 1992). “Law enforcement officers may not testify as to the
contents of an informant’s tip because such testimony violates the accused’s
1
Taylor did not challenge the relevant testimony in any way in state habeas
proceedings, but a presentation in state habeas is not a component of exhaustion if the issue
was presented on the direct appeal. Morris v. Dretke, 413 F.3d 484, 491 (5th Cir. 2001).
9
No. 07-30709
constitutional right to confront and cross-examine his accusers.” Id. at 737
(emphasis added) (citing State v. Banks, 439 So. 2d 407, 410 (La. 1983), in which
the court concluded that such hearsay violated both the Louisiana and federal
Constitutions). In addition, Taylor cited a Louisiana Supreme Court case
explicitly connecting the error in allowing such hearsay testimony to an
accused’s federal Confrontation Clause rights. State v. Wille, 559 So. 2d 1321,
1329-30 (La. 1990).
Taylor’s failure to frame the claim in constitutional terms makes
exhaustion less than clear. However, this court has before looked to the content
of the cases cited in the state court filings in order to determine whether a claim
was “fairly presented.” See Kittelson, 426 F.3d at 317. Doing so here suggests
that the nature of Taylor’s challenge was more sweeping than simply opposing
a state-law evidentiary ruling. Such an understanding is consistent with the
Louisiana intermediate court’s reliance on a precedent in which the defendant
claimed that “the detective’s testimony circumvented the hearsay rule and
deprived [the defendant] of the right to confront and cross-examine the absent
informant/accuser.” State v. Dangerfield, 816 So. 2d 885, 900 (La. Ct. App.
2002). The Dangerfield court interpreted a similarly made challenge to the same
kind of hearsay evidence as raising a federal Confrontation Clause claim. Id.
The Louisiana Court of Appeal here did not explicitly indicate that it was
evaluating a federal Confrontation Clause claim, but its use of Dangerfield is a
signal that it found more to be involved than a hearsay claim. We conclude that
Taylor adequately exhausted his claims in state court.
B. Merits of Taylor’s habeas petition
1. The AEDPA standard
This court has “no authority to grant habeas corpus relief simply because
we conclude, in our independent judgment, that a state supreme court’s
application of [federal law] is erroneous or incorrect.” Martinez v. Dretke, 404
10
No. 07-30709
F.3d 878, 884 (5th Cir. 2005). Instead, under the Antiterrorism and Effective
Death Penalty Act of 1996 (“AEDPA”), a federal court is restricted in granting
a petition for a writ of habeas corpus:
(d) An application for a writ of habeas corpus on behalf of a person
in custody pursuant to the judgment of a State court shall not be
granted with respect to any claim that was adjudicated on the
merits in State court proceedings unless the adjudication of the
claim:
(1) 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.
Under the “contrary to” clause of Section (d)(1), a federal court may only
grant habeas relief if the state court decided a case differently than the United
States Supreme Court previously decided a case on a set of nearly identical facts.
Under the “unreasonable application” clause, a court may grant habeas relief if
the state court misapplied the relevant legal principles to the facts. See
Williams v. Taylor, 529 U.S. 362, 412-13 (2000). As there is no United States
Supreme Court case with nearly identical facts to this one, this case is governed
by the “unreasonable application” prong of Section 2254(d).
2. Unreasonable application of clearly established federal law
The necessary inquiry is whether the Louisiana Court of Appeal
unreasonably applied clearly established federal law as determined by the
United States Supreme Court when it denied relief to Taylor. That court
analyzed whether there was error in admitting Detective Bates’s testimony
about the unidentified witness, as well as the prosecution’s references to that
testimony in closing argument. However, the state appellate court did not
resolve whether the trial court committed constitutional error in this regard.
Instead, it merely concluded that any error was harmless.
11
No. 07-30709
Even though the Louisiana Court of Appeal only answered the harmless
error question, this court must first consider whether the admission of Detective
Bates’s testimony was an “unreasonable application” of federal law. AEDPA
deference is due to state court decisions, even when the state court does not
explicitly address the relevant issue. See Schaetzle v. Cockrell, 343 F.3d 440, 443
(5th Cir. 2003) (“Because a federal habeas court only reviews the reasonableness
of the state court’s ultimate decision, the AEDPA inquiry is not altered when .
. . state habeas relief is denied without an opinion.”). Accordingly, AEDPA
deference extends to the preliminary question of whether there was legal error,
in addition to questions of the harmlessness of error.
We now turn to the issue of legal error. Under the Sixth Amendment, a
criminal defendant has the right “to be confronted with the witnesses against
him.” Coy v. Iowa, 487 U.S. 1012, 1015 (1988). The Confrontation Clause
generally bars witnesses from reporting the out-of-court statements of
nontestifying declarants. See Crawford v. Washington, 541 U.S. 36, 54-56
(2004). Crawford was decided after the completion of Taylor’s direct appeal. But
even under the Supreme Court’s earlier decisions, the Confrontation Clause
generally barred the admission of statements made by out-of-court declarants
for the truth of the matter asserted.2 Ohio v. Roberts, 448 U.S. 56, 65 (1980).
The only exception was when the declarant’s statement fell into a “firmly rooted
hearsay exception” or when there was a showing that the statement bore
“particularized guarantees of trustworthiness.” Id. at 66. This exception
assumed the declarant was legitimately unavailable to testify after “the
prosecutorial authorities [] made a good-faith effort to obtain his presence at
trial.” Id. at 74.
2
The Crawford court would reject Roberts on the ground that it did not sufficiently
protect Confrontation Clause rights. See Crawford, 541 U.S. at 63 (“The unpardonable vice
of the Roberts test . . . is its demonstrated capacity to admit core testimonial statements that
the Confrontation Clause plainly meant to exclude.”)
12
No. 07-30709
Detective Bates testified about highly incriminating information from the
unidentified eyewitness. The prosecution’s reference to that testimony in closing
argument reinforced it. There was no hearsay exception, firmly rooted or
otherwise, and Taylor was denied his right to confront the witness.
Police officers cannot, through their trial testimony, refer to the substance
of statements given to them by nontestifying witnesses in the course of their
investigation, when those statements inculpate the defendant. When the
statement from an out-of-court witness is offered for its truth, constitutional
error can arise. This principle is well established. See 2 CHARLES T.
MCCORMICK, MCCORMICK ON EVIDENCE § 249, at 104 (4th ed. 1992); see also
United States v. Silva, 380 F.3d 1018, 1020 (7th Cir. 2004) (“Allowing agents to
narrate the course of their investigations, and thus spread before juries damning
information that is not subject to cross-examination . . . would eviscerate the
constitutional right to confront and cross-examine one’s accusers.”) This Circuit
has applied this analysis. See, e.g., United States v. Hernandez, 750 F.2d 1256,
1257-58 (5th Cir. 1985) (inadmissible hearsay for a DEA agent to testify that
“[w]e received a referral by the U.S. Customs as [defendant] being a drug
smuggler”); United States v. Kang, 934 F.2d 621, 627 (5th Cir. 1991) (similar).
Louisiana state courts have recognized this principle. See, e.g., Hearold,
603 So. 2d at 737 (“Law enforcement officers may not testify as to the contents
of an informant’s tip because such testimony violates the accused’s constitutional
right to confront and cross-examine his accusers.”)
Applying this understanding, it is apparent that Detective Bates’s
testimony indicating that an unidentified, nontestifying witness identified the
defendant as “the perpetrator,” along with the prosecution’s references to that
testimony in closing argument, was hearsay. Under Ohio v. Roberts, the
admission of such hearsay statements against a criminal defendant violates the
Confrontation Clause, unless the declarant’s statement either falls within a
13
No. 07-30709
firmly rooted hearsay exception or bears particularized guarantees of
trustworthiness. Neither of those bases was affirmatively shown, nor is either
established by the record. Accordingly, the admission of this testimony against
Taylor was a violation of Roberts, which was clearly established Supreme Court
precedent at the time of Taylor’s trial.
Even under the deference required by Section 2254(d), which limits us to
deciding whether any implicit rejection of Taylor’s argument was an
unreasonable application of federal law, we find there to be error. Unless the
error may be considered harmless, relief is justified.
3. Harmless error
The final question is whether the error committed by the Louisiana courts
was harmless and therefore not a basis for relief. On habeas review under
AEDPA, the prejudice of constitutional error in a state-court criminal trial is
measured by the “substantial and injurious effect” standard of Brecht v.
Abrahamson, 507 U.S. 619 (1993). See, e.g., Hughes v. Quarterman, 530 F.3d
336, 345 (5th Cir. 2008). The Louisiana appellate court has already measured
the harmfulness of the trial court’s decision and found reversal not to be
required. We decide whether, in reaching that conclusion, the state court
applied harmless error analysis in an “objectively unreasonable” manner. Id.
The Louisiana trial court’s decision to permit references to the testimony
of the unidentified eyewitness is sufficiently prejudicial if it had a “substantial
and injurious effect or influence in determining the jury’s verdict.” Brecht, 507
U.S. at 623. There are guideposts in applying the standard to the facts of a
given case. When a court finds itself “in virtual equipoise as to the harmlessness
of the error under the Brecht standard, the court should treat the error as if it
affected the verdict.” Fry v. Pliler, 127 S. Ct. 2321, 2327 n.3 (2007) (citations and
quotations omitted); see also Robertson v. Cain, 324 F.3d 297, 305 (5th Cir. 2003)
(“[T]he petitioner should prevail whenever the record is so evenly balanced that
14
No. 07-30709
a conscientious judge is in grave doubt.”). Conversely, an error is insufficient
under Brecht when the evidence of the defendant’s guilt is overwhelming. See,
e.g., Burgess v. Dretke, 350 F.3d 461, 472 (5th Cir. 2003).
In this case, the evidence of guilt is far from overwhelming. Though
Taylor could be thought to have a motive to harm the victim, there was no
physical evidence linking him to the crime. Only a single eyewitness – Osborne
Parker – identified the defendant at the crime scene. His testimony concerning
the actual identification was markedly indefinite. Apart from Detective Bates’s
reference to the unidentified source, there was no corroboration of Parker’s
testimony. Keyoka Riley, who was with Parker throughout the time of the
shooting, did not corroborate his testimony, noted the darkness at the time, and
stated that she “couldn’t see how he could see anything.” Parker and Riley were
close friends who lived together, yet Riley testified that Parker never told her
that he had seen the defendant.3
In addition, the defendant also had several alibi witnesses. Although
there was every reason that jurors could question the credibility of these
witnesses because of their affinity for Taylor, doubts about the strength of the
affirmative evidence of innocence does not add to the limited evidence of guilt.
We find the harmfulness here at least as strong as that presented in
another recent decision. Burbank v. Cain, 535 F.3d 350 (5th Cir. 2008). In that
precedent, there was no physical evidence linking the accused to the murder;
3
Indeed, the prosecution’s repeated references to the unidentified witness as a
corroborating source of information, were no doubt an effort to strengthen testimony that was
quite equivocal standing on its own. Examples include:
– Detective Bates on direct: “I had a conversation with an individual and during this
conversation, learned some information. . . . [F]rom that information [I] was able to
develop a suspect. . . . The description given was he is one of the brothers of the
Molieres.”
– Detective Bates on direct: “[t]his description that I got . . . was . . . that the
perpetrator was Bruce.”
– Prosecution on close, “Now, corroboration? You want corroboration? . . . Detective
Bates had developed the name of a suspect before he had any idea who Osborne Parker
was. He had the name Bruce Taylor already.”
15
No. 07-30709
only a single witness identified him as the shooter. Id. at 352. In contrast to the
present case, the identifying witness in Burbank took the stand. The defendant
was able to elicit testimony casting doubt on the witness’s credibility, including
that she had been drinking and taking drugs on the day of the killings, that she
had considered falsely testifying, that she had three prior convictions, and that
she had been recently arrested again and was facing at least five years in prison.
Id. at 352-53. The defense also implied that she regularly smoked crack and
that she “faced twenty to life” if she did not identify the defendant as the killer.
Id. at 353-54. Still, we granted habeas relief, citing violation of the
Confrontation Clause due to the trial court’s refusal to allow two additional
defense witnesses who would have impeached the eyewitness. Id. at 359.
In the present case, the comment attributed to the nontestifying witness
was critical, as the other evidence was not at all overwhelming. Compare
Wilkerson v. Cain, 233 F.3d 886, 891-92 (5th Cir. 2000) (habeas relief warranted
where defendant could not effectively cross-examine a witness “crucial to the
prosecution’s case”), with Burgess, 350 F.3d at 472 (harmless error where there
was “a wealth of evidence validly in the record that provided overwhelming
evidence of Burgess’s guilt”), and Cotton v. Cockrell, 343 F.3d 746, 752 (5th Cir
2003)(describing the “sea of evidence” incriminating the defendant).
In light of the dependency of the prosecution on a single witness’s less-
than-certain identification, combined with the use of tainted hearsay evidence
both in testimony and in closing argument asserting that the defendant was “the
perpetrator,” we conclude that the Louisiana Court of Appeal’s holding that any
error would have been harmless was contrary to, and also an unreasonable
application of, federal law as clearly established by the United States Supreme
Court. Accordingly, Taylor is entitled to habeas relief.
The district court judgment is AFFIRMED.
16