Hafdahl v. Johnson

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

_____________________

No. 00-10268
_____________________

RANDAL WAYNE HAFDAHL,

Petitioner-Appellant,

versus

GARY L. JOHNSON, Director,
Texas Department of Criminal
Justice, Institutional Division,

Respondent-Appellee.

_________________________________________________________________

Appeal from the United States District Court for the
Northern District of Texas
_________________________________________________________________

May 15, 2001

Before JOLLY, JONES, and BENAVIDES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In 1986, Randal Wayne Hafdahl was convicted of murder in a

Texas state court and sentenced to death for killing a police

officer. The conviction and sentence were affirmed on appeal.

Hafdahl now seeks federal habeas corpus relief. He contends that

his constitutional rights were violated, both in the guilt phase

and the punishment phase of his state trial, when the prosecutor

1
knowingly used false testimony of a forensic pathologist and when

the state court admitted testimony relating to a prior

unadjudicated kidnaping offense. The district court denied his

habeas petition. We granted a Certificate of Appealability (“COA”)

and now affirm the district court’s judgment.

I

A

Shortly after 4:00 p.m. on November 11, 1985, Randal Wayne

Hafdahl shot and killed Sergeant James D. Mitchell, Jr., of the

Amarillo, Texas police department.

Hafdahl had been driving across Texas with two friends, Shawn

Terry and Daniel Helgren. Hafdahl, who admits that he had been

consuming alcohol and hallucinogenic mushrooms earlier in the day,

was driving recklessly and lost control of his car. The car left

the highway, crossed a frontage road, crashed through a wooden

fence around a private residence, and eventually came to rest in

the backyard. When the car would not start, Hafdahl took a loaded

9mm pistol from the glove box, hid it under his coat, and attempted

to flee. He testified that he wanted to hide the gun because he

knew the police would arrive soon and discover that he was a

convicted felon (for possession of a controlled substance) who had

stopped reporting to his probation officer.

Sergeant Mitchell was driving home from work when he witnessed

the accident. He was still dressed in his police uniform and was

2
wearing an unzipped windbreaker with “Amarillo City Police” and a

badge insignia emblazoned on it. Hafdahl testified that he first

saw Mitchell when the officer entered the backyard through the

downed fence. At that point, Hafdahl turned from Mitchell and

tried to escape through a gate, which he could not unlatch.

Mitchell pursued Hafdahl across the yard and, according to one

eyewitness, identified himself as a policeman and ordered Hafdahl

to stop. Mitchell apparently had his police revolver drawn,

although he never fired a shot. When Mitchell had almost caught up

with him, Hafdahl turned and shot Mitchell four times from

approximately six feet away.

B

Hafdahl was then indicted for the capital offense of murdering

a police officer. Texas law provides that a person commits the

offense of capital murder of a peace officer if (1) that person

knows that the victim is a peace officer, (2) he intentionally

murders the peace officer, and (3) the peace officer is then acting

in the lawful discharge of an official duty, such as investigating

a traffic accident. See TEX. PENAL CODE ANN. § 19.03(a)(1). The

critical issue at trial was whether Hafdahl knew that Mitchell was

an officer.

Hafdahl testified that he believed Mitchell was an angry

motorist whom Hafdahl had run off the road. Hafdahl contends that,

because he was under the influence of drugs and the events took

3
place so quickly, he did not realize Mitchell was a police officer

until after he had fired the fatal shots.

As the district court observed, however, the State put on

extensive evidence that Hafdahl must have known that Mitchell was

an officer. First, a worker who was only 20 to 25 feet from the

crime scene, testified that Mitchell identified himself as a police

officer as he approached Hafdahl. Numerous witnesses testified

that Mitchell was gesturing and yelling at Hafdahl but that they

were too far away to hear what he was saying. When asked whether

Mitchell had ever identified himself as an officer, Hafdahl

replied, “I can’t say if he did or he didn’t. All I can say is I

didn’t hear him.”

Second, twelve witnesses, most of whom had stopped on the

highway, testified that they immediately recognized Mitchell as a

police officer because of his uniform. One of Hafdahl’s traveling

companions, who was still in the car when Mitchell entered the

yard, testified that Mitchell’s police uniform was plainly visible

and he knew Mitchell was an officer “the second I saw him. . . . No

doubt in my mind.” As noted above, Hafdahl admits that he saw

Mitchell when he entered the backyard through the downed fence.

The State argued that Hafdahl would have noticed the police uniform

and the Amarillo City Police windbreaker.

Third, Hafdahl shot Mitchell at close range and could not have

failed to notice Mitchell’s uniform. Although the estimates varied

4
somewhat, two ballistics experts from the Federal Bureau of

Investigation testified that Hafdahl was no more than six feet from

Mitchell when he fired the shots, and one of Hafdahl’s companions

testified that Hafdahl was approximately three to five feet from

Mitchell. Even if one assumed that Hafdahl had not noticed

Mitchell’s uniform when he entered the yard, the State suggested,

Hafdahl surely would have seen the uniform before firing the fatal

shots from such close range.

C

To further establish that Hafdahl was close enough to know

that Mitchell was an officer, the State called, among others, Ralph

Erdmann, a forensic pathologist. The crux of Erdmann’s testimony

was that (1) Hafdahl shot Mitchell four times with a semiautomatic

9mm pistol; (2) the first two shots were non-fatal wounds to the

abdomen and arm; (3) Hafdahl moved closer to Mitchell while firing,

although it was not clear how quickly the shots were fired; (4)

both the third and fourth shots to the chest were mandatorily

fatal; and (5) judging from the gunpowder stippling specks on

Mitchell’s face, Hafdahl was approximately two and a half feet from

Mitchell when the final shot was fired. Erdmann explained to the

jury that many of the assumptions underlying his conclusions were

drawn from the reports and conclusions of the investigating

officers. His testimony often indicated that the autopsy results

were “consistent” with the officers’ theories.

5
 To support its argument that Hafdahl intentionally killed

Mitchell, the State put on evidence that Hafdahl had a motive to

avoid apprehension. Two Texas officers (one from Rockwall, the

other from Grand Prairie) testified that they had arrested Hafdahl

on a warrant for aggravated kidnaping and turned the case over to

the FBI. During the guilt phase, neither officer testified about

the details of the alleged kidnaping. Neither officer purported to

know how the FBI had resolved the case. The implication was that

Hafdahl might have believed he was a wanted man and, consequently,

that he killed Mitchell in order to evade capture.1

D

The jury convicted Hafdahl of capital murder on April 4, 1986.

During the sentencing phase, the State requested the death penalty

and introduced additional evidence as to the three required

“special issues”: (1) Whether Hafdahl deliberately killed Mitchell;

(2) whether Hafdahl’s response to Mitchell’s provocation, if any,

1
Two points deserve further comment. First, the evidence of
the prior kidnaping arrest was not necessary to prove that Hafdahl
intended to kill Mitchell. The State offered the kidnaping
testimony for the sole purpose of providing a motive for the crime.
Although a motive to commit a crime is relevant to the question of
intent, these concepts should not be confused: “Whereas motive is
the inducement to do some act, intent is the mental resolution or
determination to do it.” BLACK’S LAW DICTIONARY 813 (7th ed. 1999).
Second, the State presented other evidence of motive beside
the kidnaping arrest. As noted above, Hafdahl admitted that, as a
convicted felon, he did not want to be found in possession of a
weapon. More relevant, perhaps, is the testimony of Hafdahl’s
companion, Daniel Helgren, who stated that Hafdahl, in the days
before the murder, had admitted to recently jumping bond in Dallas,
had begun to use a new alias (“Jack Douglas Cone”), and had dyed
his hair.

6
was unreasonable; and (3) whether Hafdahl would probably commit

criminal acts of violence in the future. Erdmann was not called to

testify further, but the police officers testified in more detail

about the kidnaping arrest. The jury then sentenced Hafdahl to

death on April 7, 1986.

E

The Texas Court of Criminal Appeals affirmed his conviction in

1990. See Hafdahl v. State, 805 S.W.2d 396 (Tex. Ct. Crim. App.

1990)(en banc), cert. denied, 500 U.S. 948, 111 S.Ct. 2250, 114

L.Ed.2d 491 (1991). Hafdahl instituted state habeas proceedings in

1991, but the Texas Court of Criminal Appeals ultimately denied

relief in 1995.

In May 1995, prior to the effective date of the Antiterrorism

and Effective Death Penalty Act, Hafdahl filed a petition for a

writ of habeas corpus in the United States District Court for the

Northern District of Texas. After limited discovery was had and

the petition was amended, the district court thoroughly and

carefully considered all eighty-four points of error raised by

Hafdahl. The district court concluded that Hafdahl was not

entitled to federal habeas relief and denied the petition in

December 1999.

This court granted a COA on August 23, 2000, to determine

whether Hafdahl’s rights were violated -- at either the guilt phase

of the trial or at sentencing -- because of (1) Dr. Erdmann’s

7
allegedly false testimony or (2) the admission of evidence related

to a prior unadjudicated kidnaping offense. We now affirm the

judgment of the district court.

II

Hafdahl contends that the State knowingly used false testimony

from Dr. Erdmann and thereby denied him due process of law, both at

the guilt phase of the trial and at sentencing.

A

The Due Process Clause of the Fourteenth Amendment forbids the

State knowingly to use, or fail to correct, perjured testimony.

See Giglio v. United States, 405 U.S. 150, 153, 92 S.Ct. 763, 766,

31 L.Ed.2d 104 (1972); Napue v. Illinois, 360 U.S. 264, 271, 79

S.Ct. 1173, 1178-79, 3 L.Ed.2d 1217 (1959). To prove that the

State has denied him due process of law by relying on perjurious

testimony, Hafdahl must prove that (1) a witness for the State

testified falsely; (2) the State knew the testimony was false; and

(3) such testimony was material. Knox v. Johnson, 224 F.3d 470,

477 (5th Cir. 2000). Whether the prosecutor knowingly used false

and material testimony is a mixed question of law and fact, and we

therefore review the district court’s factual findings for clear

error and the conclusions drawn from those facts de novo. Creel v.

Johnson, 162 F.3d 385, 391 (5th Cir. 1998).

B

Hafdahl focuses on ten fairly specific statements that Erdmann

8
made at trial. Erdmann testified, to a reasonable medical

certainty, that (1) he believed he had determined the sequence of

shots; (2) the first shot hit Mitchell’s left arm and passed

through to his abdomen; (3) the damage to his arm prevented

Mitchell from firing his weapon (Mitchell was evidently left-

handed); (4) Mitchell’s gun was thrown from his left hand to the

right side of his body; (5) the second shot was a non-fatal wound

to the abdomen; (6) both the third and fourth shots were

mandatorily fatal wounds to the chest; (7) Hafdahl moved closer to

Mitchell as he fired; (8) Mitchell slumped to the ground as the

final shots were fired; (9) the third and fourth shots left

gunpowder burns (or “stippling” marks) on Mitchell’s face; and (10)

test firings of Hafdahl’s pistol indicated that the last shot was

fired from a distance of two and a half feet. Hafdahl contends

that each of these ten statements is false.

Hafdahl attempts to prove the falsity of these statements by

comparing Erdmann’s 1986 trial testimony to his 1996 deposition.2

According to Hafdahl, Erdmann admitted in 1996 that he could have

testified only as to a “possibility” of the sequence of shots; that

there was a 30% to 40% probability that Mitchell could have

returned fire after being shot in the forearm; that as a forensic

pathologist, he could not form an opinion as to whether Hafdahl

2
To a much lesser extent, Hafdahl also relies on Erdmann’s
report to a police sergeant, admissions made by the State, and
affidavits of other forensic pathologists.

9
advanced on Mitchell as he fired or as to how much time elapsed

between the shots; and that his opinions as to the gunpowder marks

and distance were speculative and unconfirmed.

C

Having carefully reviewed the record, however, we cannot say

that Erdmann, in offering his opinion testimony, testified falsely.

There are two reasons why Hafdahl’s characterization of Erdmann’s

testimony is not persuasive.

(1)

First, at the beginning of his 1986 trial testimony, Erdmann

explained the basis of his opinion testimony. He testified that he

had relied heavily on interviews with the investigating officers,

FBI ballistics reports, crime scene photographs, and other second-

hand sources of information. It is clear that, in many instances,

his testimony was that the autopsy results (such as entry and exit

angles of the bullets) were consistent with the officers’ theory of

what had happened. Hafdahl may be justified in complaining that

Erdmann’s investigation was not sufficiently independent, but, as

this court has pointed out, the proper place to challenge Erdmann’s

investigative methods and the strength of his conclusions is

cross-examination -- not on collateral review. See Fuller v.

Johnson, 114 F.3d 491, 496-97 (5th Cir. 1997). When Hafdahl’s

attorney cross-examined Erdmann at trial and asked about the

sequence and frequency of shots, Erdmann replied that “the only

10
thing that I can go by is . . . gathering information, obtaining

this from the investigating officers” and then determining whether

that information is “consistent” with what was discovered during

the autopsy.

Again in the 1996 deposition, Erdmann emphasized that he

lacked an independent investigative staff and that he had to base

his opinions and conclusions on information provided by the

investigating officers. During the deposition, when Erdmann

admitted that the sequence of shots may have been different and

that he could not have formed an opinion on the time that had

elapsed between shots, Erdmann was referring only to what he could

have known through the autopsy. Erdmann thus agreed that the

evidence he had gathered as a pathologist was, at least to some

extent, consistent with Hafdahl’s reconstruction of what happened

during the shooting.

In sum, Erdmann’s 1996 deposition does indeed point out the

limitations of his investigation. But the mere fact that much of

Erdmann’s 1986 trial testimony was predicated on conclusions

reached by police investigators does not make his opinion testimony

false. We think that Hafdahl has failed to establish that either

Erdmann or the prosecutor attempted to mislead the jury about the

nature of his investigation or the independence of his conclusions.

(2)

There is a second reason why inconsistencies in Erdmann’s

11
deposition testimony are not indicative that his trial testimony

can be characterized fairly as false. During the 1996 deposition,

Erdmann repeatedly told Hafdahl’s attorney that he was no longer

familiar with the facts of the case. He had testified at the trial

more than ten years earlier and had performed numerous autopsies

(he claimed to have averaged over 300 per year) until he retired in

1992. He had read over the transcript of his trial testimony the

day before his deposition was taken and did not see the autopsy

photos and report until the first day of the deposition. He relied

heavily on what the attorney represented to him. In sum, our

reading of the nearly 700-page deposition portrays a pathologist

who was no longer familiar with the facts of a case, who was not

cognizant of the substance of his trial testimony, who relied on

the factual assertions and hypothetical situations posed by

counsel, and who sometimes agreed that Hafdahl’s attorney’s theory

of the case was consistent with the autopsy results. Under these

circumstances, the fact that Erdmann’s medical opinions in 1996

differed somewhat from his opinions in 1986 (with regard to whether

the damage to Mitchell’s left arm would have prevented him from

returning fire, for example) does not establish false testimony.

We therefore conclude that Hafdahl has failed to demonstrate

that Erdmann’s trial testimony was false by showing particular

inconsistencies with his deposition testimony. For the same

reasons discussed above, we also conclude that none of the other

12
evidence cited by Hafdahl suggests that Erdmann’s 1986 trial

testimony was false.

D

On a closely related point, Hafdahl argues that the State’s

reliance on Erdmann’s false testimony rendered the sentencing

determination unreliable and thus constitutes a violation of the

Eighth Amendment’s prohibition on cruel or unusual punishment. See

Johnson v. Mississippi, 486 U.S. 578, 108 S.Ct. 1981, 100 L.Ed.2d

575 (1988). Because we have determined that Hafdahl has failed to

show that Erdmann testified falsely, we find Hafdahl’s Eighth

Amendment claim to be without merit.

III

Hafdahl also contends that his constitutional rights were

violated when the State was allowed to introduce evidence related

to a kidnaping arrest in 1982. Because different evidence was

presented during the guilt phase and the punishment phase, we

consider the arguments related to each phase separately.

A

During the guilt phase of the trial, the State sought to

introduce evidence of a prior unadjudicated, unindicted kidnaping

offense in order to show that Hafdahl had a motive for avoiding

arrest and shooting a police officer. Hafdahl objected that such

testimony was inadmissible as evidence of bad character. The state

court then heard testimony outside the presence of the jury and

13
concluded that, under Texas law, certain portions of this

“extraneous offense” testimony could be presented to the jury for

the limited purpose of showing that Hafdahl had motive and intent

to elude Officer Mitchell.

When the jury was seated again, the State called two Texas

police officers: Steven Craighead from Rockwall and Harold Rhodes

from Grand Prairie. The officers testified that they had arrested

Hafdahl in 1982 on a warrant for aggravated kidnaping and then

released him pending an investigation by the FBI. The court did

not allow the officers to testify as to the details of the alleged

kidnaping.3 The Texas Court of Criminal Appeals succinctly

explained the purpose and nature of the officers’ testimony.

The evidence of [Hafdahl’s] arrest for aggravated
kidnaping was introduced to show the motive appellant
would have to shoot at the officer. Because appellant
wanted to avoid apprehension by State authorities, which
could produce a subsequent investigation and/or
prosecution of the aggravating kidnaping charges, he
would more likely than not shoot at the officer knowing
him to be an officer.
The existence of a potential for further
investigation, along with the potential that federal or
State aggravated kidnaping charges could occur, is the
reason the evidence was introduced. The important factor
is appellant’s awareness of this potential along with his
fear of apprehension.

Hafdahl, 805 S.W.2d at 398 (citations omitted).

Hafdahl argues that this testimony violated his constitutional

3
Outside the presence of the jury, the prosecutor stipulated
that Hafdahl was never indicted for the kidnaping charge. Also
outside the presence of the jury, the officers said that state
kidnaping charges could still be filed.

14
rights for three reasons.

(1)

First, he contends that the State denied him due process of

law by knowingly presenting false and material testimony related to

the kidnaping arrest. See Knox, 224 F.3d at 477. Hafdahl contends

that the officers testified falsely because (1) the officers and

prosecutor knew that Laneda Simpson, the alleged victim, had

charged that two men (neither of whom was Hafdahl) abducted her

from her place of employment and carried her across state lines;

(2) outside the presence of the jury, when the court was

considering the admissibility of the kidnaping charges to establish

motive, the officers suggested to the court that Hafdahl would have

been indicted on federal kidnaping charges if he had been found,

even though they possessed the FBI’s “rap sheet” on Hafdahl that

did not even mention the Simpson kidnaping arrest; and (3) outside

the presence of the jury, in an effort to tie the kidnaping charges

to the motive for the murder, the officers testified that state

kidnaping charges might still be brought against Hafdahl, even

though the officers and prosecutors presumably knew that the

statute of limitations had run on the charges.

However, the first two statements cannot be fairly

characterized as false. First, although the alleged victim stated

that two men abducted her, she also said that a total of nine

people took her to Colorado and detained her for several days.

15
Thus, the statement implicates Hafdahl even if it does not specify

what acts he might have committed in the course of this detention.

The officers testified only that Hafdahl had been arrested because

he was alleged to have participated in the kidnaping. The officers

did not testify as to the substance of the victim’s statement or

Hafdahl’s involvement during the guilt phase of the trial. Second,

as to the FBI’s involvement, Officer Rhodes did not suggest that he

knew what actions the FBI had taken, could have taken, or would

take in the future. He testified only that he turned the

investigation and files over to the FBI.

Furthermore, on the record of this case, Officer Rhodes’s

suggestion (outside the presence of the jury) that state kidnaping

charges could still be filed is essentially immaterial to the

admissibility of the kidnaping charges. There is no indication

that the judge, who understood the legal principles at issue, would

have ruled differently without the testimony at issue. The

question is not Rhodes’s state of mind -- the question is Hafdahl’s

state of mind, and there is no indication that he thought the

statute of limitations had run. As the state judge explained, the

important factor was whether Hafdahl might have thought that

charges could have been filed and that he feared possible

prosecution. The point was that there was a basis for this fear

because Hafdahl knew that he had been arrested three years before

under a different name and that the crime had been investigated by

16
the FBI. Thus, even if we assume that both Officer Rhodes and the

prosecutor knew that the limitations period had run (and there is

no clear evidence that they did), there is no reasonable likelihood

that Rhodes’s testimony on this point could have affected the

jury’s verdict inasmuch as it was not material to the admissibility

of the kidnaping charge. See Kirkpatrick v. Whitley, 992 F.2d 491,

497 (5th Cir. 1993)(holding that a conviction will be set aside

only if there is a “‘reasonable likelihood that the false testimony

could have affected the jury’s verdict’”)(quoting United States v.

Bagley, 473 U.S. 667, 679 n.9, 105 S.Ct. 3375, 3382, 87 L.Ed.2d 481

(1985)).

(2)

Second, Hafdahl contends that the State denied him due process

of law because the State did not make a showing strong enough that

Hafdahl had actually committed the offense of kidnaping to allow

its admission as an extraneous offense to show motive for avoiding

capture; Hafdahl argues, in other words, that the prejudice greatly

outweighed the probative value of this evidence. See Story v.

Collins, 920 F.2d 1247, 1254 (5th Cir. 1991). If evidence of an

extraneous offense is wrongly admitted, however, habeas corpus

relief is proper only if the error is of such magnitude that it

resulted in “fundamental unfairness.” Blankenship v. Estelle, 545

F.2d 510, 516-17 (5th Cir. 1977).

Even if we assume that the victim’s unsworn statement,

17
standing alone, does not constitute a sufficiently strong showing

that Hafdahl committed the offense of kidnaping, Hafdahl has not

shown any “fundamental unfairness” in the guilt phase of the trial

resulting from the prosecutor’s presenting this testimony. As we

have pointed out above, the state introduced the kidnaping

testimony for the limited purpose of showing that the fear of

arrest might have motivated Hafdahl. Thus, the only evidence

presented to the jury during the guilt phase was the mere fact that

Hafdahl was arrested and then released. The trial court did not

allow the officers to recount the potentially inflammatory details

of Simpson’s allegation during the guilt phase. Furthermore, the

court allowed Hafdahl to present rebuttal evidence that he was not

in danger of being prosecuted for kidnaping. Under these

circumstances, no fundamental unfairness resulted from the

admission of the testimony to show motive.

(3)

Third, Hafdahl contends that the admission of the kidnaping

testimony during the guilt phase violated his rights under the

Sixth Amendment’s Confrontation Clause because he was not able to

cross-examine the victim of the alleged kidnaping. But Hafdahl

incorrectly characterizes the officers’ testimony about the

kidnaping as hearsay. That Hafdahl was arrested is not hearsay:

Officer Craighead’s testimony -- that he had personally taken

Hafdahl into custody -- was not hearsay because it was drawn from

18
the witness’s personal knowledge. Cf. FED. R. EVID. 801(c). Because

the officers did not testify about what Simpson (the alleged

victim) had told them about the crime, there was no Confrontation

Clause violation at the guilt phase of the trial.

B

After a determination of guilt for capital murder, the jury

then had to decide punishment. The kidnaping testimony presents a

different question during this phase of the trial. The State

called Officer Harold Rhodes to testify and, after reminding the

jury that he had testified in the case several days earlier, Rhodes

testified that Hafdahl had a bad reputation for being dangerous and

violent. During direct examination, neither Rhodes nor the

prosecutor mentioned the alleged kidnaping. After the initial

cross-examination and further examination by both attorneys,

Hafdahl’s counsel began asking about Rhodes’s investigation of the

alleged kidnaping. Rhodes testified that he had taken Laneda

Simpson’s statement and arrested Hafdahl and several other men.

Hafdahl’s attorney then reminded Rhodes that Simpson had a

boyfriend in Grand Prairie. Hafdahl’s attorney implied that

Simpson voluntarily went to Wyoming with seven men and two women

and then, only after she had returned to Texas, had she fabricated

the kidnaping story in order to placate her boyfriend. Hafdahl’s

attorney asked Rhodes, “[W]hen you got to investigating, after you

took her statement, . . . didn’t you find out that when she got

19
back down here from two weeks in Wyoming, that she was having

trouble explaining to her boyfriend, the guy she had been living

with, why it was that all of a sudden she had unexpectedly taken

off from a parking lot and gone on a trip to Wyoming for two

weeks?” Rhodes denied that his investigation revealed any lying on

the part of the victim.

The prosecutor then began further direct examination. Until

this point in the sentencing hearing, the jury had heard no

testimony whatsoever relating to the facts of the kidnaping

allegation. The jury had heard only the attorney’s suggestion that

the story was fabricated. To get the flavor of this testimony, we

reproduce the relevant sections from the further direct examination

of Officer Rhodes.

Q: What did [Simpson] say happened to her?
A: She said that she had been forcibly taken from a
location in Grand Prairie.

Q: By whom?
A: By the Defendant. . . . And, two other people.
That she was forcibly taken out of the State to
Colorado, and later to Wyoming for two weeks. And,
they returned to the Dallas/Fort Worth area.

Q: Was there any violence noted?
A: From the time that she was taken from the location
in Grand Prairie, she stated that she was beaten.
She tried to make an escape from the subjects.

Q: What happened when she tried to make an escape?
A: She was beaten, gagged, and thrown in a van.

Q: Did she tell you anything else that the Defendant
in this case did to her?
A: She said that if she yelled, that her life would be
in danger.

20
 On further direct examination and cross-examination, Officer

Rhodes testified that state charges were never brought against

Hafdahl, that the Grand Prairie police turned over the

investigation to the FBI because Simpson alleged that she had been

transported across state lines, and that Rhodes never heard from

the FBI again about the kidnaping investigation.

Hafdahl contends that Officer Rhodes’s testimony during

sentencing violated his constitutional rights for three reasons.

(1)

First, Hafdahl argues that he was denied due process of law

during the sentencing phase because the State knowingly introduced

false and material testimony regarding the kidnaping. See Knox,

224 F.3d at 477.

Hafdahl points to one obvious inconsistency between Officer

Rhodes’s testimony and Laneda Simpson’s statement (upon which

Rhodes presumably based his testimony). In her statement, Simpson

stated that two men named “Mike” and “Robert” grabbed her in a

parking lot, put her in a van, and took her to Colorado and

Wyoming. Among the seven men and two women who were traveling

together was “Robert # 2, . . . AKA Blue Eyes,” who was later

determined to be Hafdahl. (Hafdahl’s alias at the time was “Robert

Eugene Moore.”)

It is undeniable, then, that Officer Rhodes was incorrect when

he said that three men, including Hafdahl, were alleged forcibly to

21
have taken the victim from her place of employment. Assuming that

Rhodes testified falsely by suggesting that Hafdahl was the

principal wrongdoer, Hafdahl has not shown how this inaccurate

testimony had a material effect on the jury’s verdict. See

Kirkpatrick, 992 F.2d at 497.

The State presented considerable evidence, in addition to the

kidnaping testimony, during the sentencing phase in order to show

Hafdahl’s propensity for violence and the likelihood of future

dangerousness. First, several officers testified as to Hafdahl’s

bad reputation for violence. Second, an officer testified that he

had arrested Hafdahl in 1980 for carrying a concealed weapon, but

the charge was dismissed when Hafdahl could not be found. Third,

an officer testified that he had arrested Hafdahl for felony theft

charges involving stolen weapons. Fourth, an officer testified

that Hafdahl was the “enforcer” of a large Colorado-based drug

trafficking ring and was also involved in trafficking stolen guns.

Fifth, Shawn Terry, one of Hafdahl’s companions, testified that

Hafdahl was the “overseer” of the drug trafficking operation and

occasionally sold the drugs himself. According to Terry, Hafdahl’s

primary responsibility was collecting debts owed for drugs, and,

for this reason, Hafdahl carried a 9mm pistol in his possession

“almost all the time; if it wasn’t on him, it was somewhere near.”

Finally, although it was not alleged that Hafdahl personally forced

Simpson into the van, Hafdahl was alleged to have helped detain her

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for two weeks -- evidence that is clearly relevant to the issue of

future dangerousness.

Therefore, in the light of all the evidence presented at

sentencing, we cannot say that the officer’s testimony that Hafdahl

allegedly was one of three men who actually abducted the victim had

a material effect on the jury’s decision to impose the death

penalty.

(2)

Second, Hafdahl argues that Officer Rhodes’s false testimony

about the kidnaping undermines the reliability of the death

sentence in this case and thus constitutes a violation of the

Eighth Amendment’s prohibition on cruel or unusual punishment. See

Johnson, 486 U.S. at 578. This argument assumes, of course, that

the officer’s statements are false and that the false testimony had

a material effect on the jury’s decision to impose the death

penalty. The analysis is essentially the same as in the Due

Process argument above, and we therefore find this argument to be

without merit.

(3)

Third, Hafdahl argues that he was denied the opportunity to

cross-examine Laneda Simpson, the alleged kidnaping victim, and

that his Sixth Amendment right to confront witnesses against him

was violated. Hafdahl correctly points out that Officer Rhodes’s

testimony as to the content of Simpson’s unsworn statement is

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inadmissible hearsay.

However, the mere occurrence of an evidentiary violation is

not sufficient to establish a Sixth Amendment violation because, as

the Supreme Court has explained, the Confrontation Clause and the

hearsay rule are overlapping but not coextensive. Ohio v. Roberts,

448 U.S. 56, 62-65, 100 S.Ct. 2531, 65 L.Ed.2d 597 (1980).

Consequently, the admission of an out-of-court statement can pass

constitutional scrutiny if the declarant is unavailable4 and the

statement is shown to be reliable. Idaho v. Wright, 497 U.S. 805,

814-15, 110 S.Ct. 3139, 111 L.Ed.2d 638 (1990). To prove that an

out-of-court statement is reliable, the State must show that it

either falls within a firmly rooted hearsay exception or has other

such "particularized guarantees of trustworthiness" that

adversarial testing would add little to its reliability. Id. at

815, 821, 110 S.Ct. 3139.

We may assume without deciding that Simpson’s unsworn

statement does not meet this standard of reliability.

Nevertheless, violations of the Confrontation Clause are still

subject to harmless error analysis. See United States v.

Landerman, 109 F.3d 1053, 1064 (5th Cir. 1997)(citing Delaware v.

Van Arsdall, 475 U.S. 673, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986)).

In this case, the question is whether the court’s error in allowing

4
The prosecutor explained that Simpson could not attend
Hafdahl’s trial because complications from her pregnancy prevented
her from traveling. Hafdahl does not contest this point.

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Rhodes to testify as to the content of Simpson’s statement was

harmless beyond a reasonable doubt. Id. To determine whether the

error was harmless, we consider “the importance of the witness’

testimony in the prosecution’s case, whether the testimony was

cumulative, the presence or absence of evidence corroborating or

contradicting the testimony of the witness on material points, the

extent of cross-examination otherwise permitted, and of course, the

overall strength of the prosecution’s case.” Id.

The prosecution made a strong case for Hafdahl’s future

dangerousness during the sentencing phase. As noted above, there

was persuasive testimony about Hafdahl’s prior arrests on weapons

charges and his role as the gun-carrying “enforcer” of a drug

trafficking ring. Compared to this testimony, Officer Rhodes’s

summary of Simpson’s statement loses some of its importance in

establishing Hafdahl’s future dangerousness. Indeed, the

prosecution made only one reference to the Simpson kidnaping during

his summation. Additionally, we must consider that it was

Hafdahl’s attorney who, on cross-examination, opened the door about

the details of the kidnaping when he implied that Rhodes did not

find Simpson’s account of the kidnaping credible. To be sure,

there is no other evidence corroborating Simpson’s account of the

kidnaping except for the arresting officers’ testimony that Hafdahl

was generally known to have a bad reputation for violence. But

considering these foregoing factors, especially the overall

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strength of the prosecution’s case establishing Hafdahl’s future

dangerousness, we conclude that the alleged violation of the

Confrontation Clause constitutes harmless error beyond a reasonable

doubt.

IV

For the reasons set forth above, Hafdahl is not entitled to

federal habeas corpus relief. The district court’s judgment

denying habeas relief to Randal Wayne Hafdahl is

A F F I R M E D .

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