In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 16-1700
CHRISTOPHER RICHARDSON,
Petitioner-Appellant,
v.
KATHY GRIFFIN, Superintendent,
Miami Correctional Facility,
Respondent-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:14-cv-399-JD — Jon E. DeGuilio, Judge.
____________________
ARGUED MAY 30, 2017 — DECIDED AUGUST 8, 2017
____________________
Before WOOD, Chief Judge, and RIPPLE and ROVNER, Circuit
Judges.
WOOD, Chief Judge. The Sixth Amendment to the U.S.
Constitution gives a criminal defendant the right “to be
confronted with the witnesses against him”; that right applies
to both federal and state prosecutions. Crawford v. Washington,
541 U.S. 36, 42 (2004) (citing Pointer v. Texas, 380 U.S. 400, 406
(1965)). In this case, Christopher Richardson contends that
2 No. 16-1700
Indiana’s courts violated his Confrontation Clause rights
when they permitted the use at his trial of testimonial, out-of-
court statements of witnesses who fingered him as the
shooter. We appreciate how narrow the path to collateral
relief is for state prisoners. We nonetheless conclude that
Richardson has shown that Indiana’s courts unreasonably
applied the Supreme Court’s Confrontation Clause cases. We
therefore reverse the decision of the district court denying
relief under 28 U.S.C. § 2254.
I
Late in the evening of August 20, 2010, police officers in
Gary, Indiana, were summoned to the scene of a shooting near
an apartment building in the downtown area. They learned
that Simmuel Mobley, a local resident, had been shot in the
leg and taken to a nearby hospital; the shooter had fled. Al-
though Detective Art Azcona, the lead officer on the case,
looked around the neighborhood for 20 minutes or so, he had
trouble finding eyewitnesses. The only physical evidence the
police found was one spent shotgun shell. Earlier that day,
Richardson had argued with his girlfriend while the two
stood in Mobley’s front yard. Mobley ordered them to leave,
and apparently they did so.
The only person who was willing to give a formal state-
ment to Detective Azcona was Lazarus Holden, who said that
someone named “Chris” was the shooter. Azcona also testi-
fied that other sources who were present told him that a per-
son named Chris had shot Mobley. He never identified those
“sources.” Azcona decided to go to the hospital to see if
Mobley could help out. Mobley could not, because he was
about to go into emergency surgery. About three weeks later,
police officer Jeff Hornyak received an anonymous phone call
No. 16-1700 3
in which the caller identified Richardson as the shooter. On
September 15, the police arrested Richardson.
The day after the arrest, Azcona returned to the hospital
and spoke with Mobley for the first time. He brought pre-
pared questions, which contained numerous references to
“Chris.” For example, before Mobley made any identification
Azcona asked the following questions: “Can you describe
what Chris looks like”; “Is Chris also known as Jay-Z”; “Did
Chris shoot you in your right thigh”; “Did you hear Chris
threaten to kill you”; and “How long have you known Chris.”
Following these questions, Azcona showed Mobley a six-man
photo array and asked him not if he could identify the
shooter, but instead if he could identify “Chris Richardson.”
Mobley, who had known Richardson for a year, picked out his
picture without any trouble, and then said that Richardson
was the shooter. The next day Azcona filed formal charges
against Richardson for aggravated battery, battery by means
of a dangerous weapon, and battery resulting in serious bod-
ily injury.
The trial took place in July 2011. The state presented five
witnesses: Mobley; Azcona; investigator Cheryl Stanley; and
two bystanders, Quanilla Strong and Shawnye Miller. Con-
spicuously absent from the list was Holden, who at no point
testified during trial. The state’s strongest evidence—indeed,
in some ways its only evidence—came from Mobley himself.
Mobley admitted that he was drunk at the time he was shot,
but he recalled ordering Richardson off of his property earlier
that day, and then later running into Richardson by his car.
Mobley recounted that Richardson said, “[Y]ou ain’t going to
talk to me like you talked to other people,” whereupon he
shot Mobley in the leg.
4 No. 16-1700
No other witness was able to say who the shooter was.
Strong and Miller, the other two people who were at the scene,
had no direct information. They ran to Miller’s car when they
heard that someone had a gun. Although an argument was
supposedly underway, Miller did not hear it, although she did
hear a gunshot. Presented with a lineup, Miller could not
identify anyone. Strong said that she saw the shooter, and she
described his complexion and height. She also heard snatches
of conversation, including one man’s saying “if you’re going
to shoot me, go ahead and shoot me,” and another replying “I
will shoot you, don’t test me, I’ll do it.” She then heard a shot,
and a third person said “Chris, you didn’t have to shoot him,
man, why did you shoot him?” The police never asked Strong
to identify the shooter from a lineup, and though she was
asked twice in court to point him out, she could not do so.
Stanley, the investigator, was the one who found the spent
shotgun shell, but she did not test it for fingerprints. She also
described Mobley’s bloody clothing, but that was all she could
add.
Detective Azcona was left with the task of knitting to-
gether the state’s case. At this point, what can only be de-
scribed as a flood of hearsay poured out. On direct examina-
tion, Azcona began by telling the jury about Holden’s identi-
fication of the shooter—an account that was presented for its
truth. Richardson’s attorney objected. After a sidebar, the trial
judge decided to let Azcona describe the course of his investi-
gation and explain how he first obtained the name “Chris.”
Richardson’s lawyer again objected, but the court cut him off.
The prosecutor then asked Azcona if he had taken a statement
from the absent Holden, and Azcona responded affirmatively.
No. 16-1700 5
In response to another question, Azcona confirmed that he al-
ready had come across the name Chris Richardson by the time
he went to the hospital to talk to Mobley. The state asserted
that it was trying only to find out that Azcona obtained a
name from Holden, and that it did not “need” him to say the
name “Chris.” But that did not stop it from repeating the
name several times.
On cross-examination, defense counsel asked Azcona
whether it would be fair to say that on five separate occasions
he mentioned the name “Chris” to Mobley before he heard
Mobley’s version of the incident. Azcona started to answer by
identifying the source of the name (i.e. Holden), but defense
counsel cut him off before he could complete the thought. The
prosecutor objected and argued that the defense had opened
the door to an exploration of the source of Azcona’s infor-
mation. The court agreed with the prosecutor, and so it al-
lowed Azcona to explain that his use of “Chris” rested on
Holden’s statement and an anonymous tip. Azcona came back
to this point on redirect examination, again confirming that
the name “Chris” came up during his initial investigation and
when he took Holden’s statement. In her closing argument,
the prosecutor obliquely referred to this as “corroborating tes-
timony” for Mobley’s identification.
The jury convicted Richardson on all counts. After his
appeal in the state court, he wound up with a sentence only
for aggravated battery, for state double-jeopardy reasons. He
argued on appeal that Azcona’s testimony violated the
Confrontation Clause of the Sixth Amendment. Although the
Indiana Court of Appeals expressed some uncertainty over
the question whether this issue had been preserved through
counsel’s objections, it decided to address the argument on
6 No. 16-1700
the merits. That was as far as Richardson got, however. The
appellate court ruled that, to the extent that there was error in
Azcona’s statement on cross-examination to the effect that
Holden and the anonymous caller had identified him by
name, that error was invited. In addition, the court found any
error stemming from Azcona’s direct testimony was harmless,
because it thought that the conviction was supported by
substantial independent evidence—namely, Mobley’s
identification and Strong’s testimony that immediately after
the shots, an unknown man said “Chris, you didn’t have to
shoot him.” After exhausting his state-court remedies,
Mobley turned to the federal court for relief under 28 U.S.C. §
2254. He failed again, but this court granted a certificate of
appealability on the Confrontation Clause question, to which
we now turn.
II
If Richardson’s Confrontation Clause rights were not vio-
lated by what went on at his trial, our task would be simple:
no error, no relief. If those rights were violated, on the other
hand, then we must tackle the reasons the Indiana Court of
Appeals gave for overlooking the error: that it was invited, or
that it was harmless. In undertaking these inquiries, we must
follow the standard of review established in the Antiterrorism
and Effective Death Penalty Act of 1996 (AEDPA), as codified
in 28 U.S.C. § 2254(d). That statute forbids the issuance of a
writ of habeas corpus for a state prisoner unless the operative
state-court decision “(1) resulted in a decision that was con-
trary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court
of the United States; or (2) resulted in a decision that was
No. 16-1700 7
based on an unreasonable determination of the facts in light
of the evidence presented in the State court proceeding.”
A
In Crawford v. Washington, 541 U.S. 36 (2004), the Supreme
Court addressed the reach of the Confrontation Clause. It ap-
plies, the Court said, to “‘witnesses’ against the accused—in
other words, those who ‘bear testimony.’” Id. at 51 (quoting
2 N. Webster, An American Dictionary of the English Lan-
guage (1828)). The Court went on to give some examples of
testimonial statements. Prominent among those examples
were “[s]tatements taken by police officers in the course of in-
terrogations … .” Id. at 52. Furthermore, the Court said, “[t]he
historical record also supports a second proposition: that the
Framers would not have allowed admission of testimonial
statements of a witness who did not appear at trial unless he
was unavailable to testify, and the defendant had had a prior
opportunity for cross-examination.” Id. at 53–54. Nontestimo-
nial hearsay is another matter, but “[w]here testimonial evi-
dence is at issue, … the Sixth Amendment demands what the
common law required: unavailability and a prior opportunity
for cross-examination.” Id. at 68.
Applying Crawford’s holding to the present case, we have
no doubt that the statements that Holden and the unnamed
witness(es) made were testimonial. Holden was responding
to Azcona’s questioning, and his statements went to the core
fact that the state was trying to prove: the identity of the
shooter. In other words, the state was using these statements
to prove the truth of the central issue, not for any other reason
recognized by the hearsay rules or otherwise. The state tried
to justify the admission of Azcona’s report of what Holden
and the unnamed witness said as an account of the course of
8 No. 16-1700
Azcona’s investigation, but, as we explained in Jones v.
Basinger, 635 F.3d 1030 (7th Cir. 2011), this goes well beyond
the boundaries the Supreme Court has established. The state
had no need to explain why Azcona used the name “Chris”
when he was talking to Mobley in the hospital. As we said in
Jones,
an unthinking, expansive application of the
course of investigation exception would effectively
undermine the Confrontation Clause: Allowing agents
to narrate the course of their investigations, and thus
spread before juries damning information that is not
subject to cross-examination, would go far toward ab-
rogating the defendant’s rights under the sixth amend-
ment and the hearsay rule.
Id. at 1046 (quotation marks and citation omitted).
The state’s frank statement to the jury that Holden’s and
the other witness’s statements corroborated Mobley’s account
is further proof that it was using the former two statements
for the truth, not simply to fill gaps in the account of what
happened. There can be no debate about this when one con-
siders the state’s closing rebuttal: “And he’s got the name
Chris from several other people. Okay. Numerous people
come forward and they say it’s Chris.” The jury’s questions
reinforce this conclusion. It sent out nine questions, four of
which related to Azcona’s testimony:
• Did Lazarus Holden witness the shooting and did
he identify Chris Richardson as the shooter?
• Did Det. Azcona get a statement from Lazarus?
• If not, why did Lazarus not provide a statement?
No. 16-1700 9
• Does Lazarus Holden live at 501 Madison [the ad-
dress of the apartment building where the shooting
took place]?
Holden’s testimony obviously loomed large in the jury’s
mind, and they were using it to help them resolve the key is-
sue in the case. The state’s use of both Holden’s testimony and
that of the unnamed informants to prove that Chris Richard-
son was the shooter violated Richardson’s Confrontation
Clause rights.
B
The Indiana Court of Appeals did not seriously disagree
with the conclusion that a Confrontation Clause violation oc-
curred. It instead immediately embraced the two reasons the
state offered for disregarding this violation: invited error and
harmless error, dispatching both points in a brief paragraph.
If either one of those grounds stands, then Richardson loses.
If both embody a decision contrary to, or an unreasonable ap-
plication of, the law as established by the U.S. Supreme Court,
then Richardson is entitled to appropriate relief. We consider
first the invited error ground, and then harmless error.
1
The Indiana Court of Appeals had little to say about in-
vited error. Here is that discussion in its entirety:
To the extent Richardson objects to Detective
Azcona’s statement that Holden and an anonymous
caller named him as the shooter, Tr. p. 241, Richardson
invited this error on cross-examination.
Adding little to that statement, the state’s brief in this court
has this to offer:
10 No. 16-1700
The Indiana Court of Appeals held that Richardson
could not challenge this testimony because he invited
any error (A22), which is a state-law determination
that Richardson cannot ask the federal court to second-
guess. See Cone v. Bell, 556 U.S. 449, 465 (2009) (citations
omitted).
Following the reference to Cone, we see that the U.S. Supreme
Court simply reiterated the well-known proposition that
“federal courts will not review questions of federal law pre-
sented in a habeas petition when the state court’s decision
rests upon a state-law ground that is independent of the fed-
eral question and adequate to support the judgment” 556 U.S.
at 465 (internal quotation marks and citations omitted). The
Court went on to say, however, that this “does not mean …
that federal habeas review is barred every time a state court
invokes a procedural rule to limit its review of a state pris-
oner’s claims.” Id. On the contrary, whether a state rule is ad-
equate to block access to habeas corpus is up to the federal
courts, for “adequacy is itself a federal question.” Id. (citation
omitted).
The state is correct, to a limited degree. To the extent that
the state appellate court found invited error during cross-ex-
amination, we accept for present purposes that this was an
adequate and independent ground for rejecting Azcona’s re-
sponse when he said that the name “Chris” came up during
his conversation with Holden and the anonymous caller. But
it is important that the invited error occurred only during
Azcona’s cross-examination, and this was not the only time
when Richardson’s Confrontation Clause rights were vio-
lated. He points to five additional instances, none of which
occurred on cross-examination.
No. 16-1700 11
First, when Azcona was testifying on direct examination,
the following exchange took place:
Q. [Evelyn Scott, prosecutor]: Where were we? All
right. You took a statement from an individual named
Lazarus Holden?
A. [Azcona]: Yes, I did.
***
Q. So, the shooting occurred on the 20th and he was
still in the hospital on the 16th of September when you
went to see him?
A. Yes.
Q. When you went to the hospital, had you received
at that point, through your investigation, the name Chris
Richardson, had it come up?
A. Yes, I did.
Tr. at 195–97 (emphasis added).
Second, on redirect examination, the state brought out the
following testimony:
Q. How soon in the course of your investigation did
the name Chris come up?
A. The name Chris came up immediately right after
the incident.
Q. You received, in the course of talking to individ-
uals that were present, the name Chris was given to
you?
A. That is correct.
12 No. 16-1700
Q. And then later you took a statement from
Lazarus Holden, as we talked about when Attorney
Tavitas was cross examining you, correct?
A. Yes.
Q. And did the name Chris again come up?
A. Yes.
Q. At some point in the course of your investigation
prior to talking to Simmuel Mobley did the last name
Richardson actually come up?
A. Yes.
Tr. at 256–57.
The prosecutor’s next reference to the hearsay identifica-
tion occurred in her initial closing argument, where she had
this to say:
We know that Lazarus Holden spoke to Detective
Azcona and gave him the name Chris as well. We know
that later on in his investigation he received from an-
other source the full name of Chris Richardson.
Tr. at 345.
Finally, the prosecutor twice used the improper evidence
in her rebuttal argument. She began by discussing Azcona’s
meeting with Mobley in the hospital, but quickly turned to
the out-of-court witnesses:
Now, the idea that he [Mobley] came forward and
they gave him the name Chris Richardson and he’s like,
oh, yeah, I think it was Chris, I don’t know who shot
me but, now I’m going to say it’s Chris because it’s been
suggested to me. Detective Azcona sat down with him
No. 16-1700 13
from the beginning, do you know who shot you? Chris.
Before he even gets into those typed written questions
or presents that to him, he has an initial discussion
with him, that was his testimony. Do you know who
shot you? Yeah, it was Chris. And he’s got the name Chris
from several other people. Okay. Numerous people come for-
ward and they say it’s Chris. He gets another source, of
course, he doesn’t want to be named, I know who did it, it
was Chris Richardson.
… Now, there’s corroborating testimony, he’s [i.e.
Mobley] not the only one that says Chris did it.
Tr. at 375–76, 378 (emphasis added).
The first of these excerpts shows that before any error
could have been invited, the prosecution had already intro-
duced Richardson’s name into the mix, expressly relying on
Holden’s out-of-court statement. This left defense counsel
with little choice on cross-examination but to respond, some-
how. That was the point at which the state court thought the
defense had invited the error of relying on Holden (and the
anonymous caller) for the truth of the investigation, but the
transcript shows that the impermissible information had al-
ready come into the record, at the prosecutor’s behest. Worse,
the prosecutor returned again and again to the improper tes-
timony, both in redirect and in closing argument. We return
to this in a moment when we discuss harmless error. For now,
it is enough to say that transcript does not support a finding
that it was Richardson who broached the subject of Holden’s
identification. It was the state that did so, over Richardson’s
objection. Even accepting the state court’s ruling that Richard-
son invited error by pursuing this during cross-examination,
the harm was already done.
14 No. 16-1700
2
The Indiana Court of Appeals had a bit more to say about
harmless error, but there was much that it did not consider.
Once again, we reproduce its discussion in full:
Moreover, we need not determine whether Rich-
ardson’s right of confrontation was violated when the
trial court permitted Detective Azcona to testify that he
took a statement from Holden and that Richardson’s
name came up at some point in the investigation, be-
cause even assuming that it was, it was harmless error.
The improper admission of evidence is harmless error when
the conviction is supported by substantial independent evi-
dence of guilt such that there is no substantial likelihood that
the questioned evidence contributed to the conviction. Hape
v. State, 903 N.E.2d 977, 991 (Ind. Ct. App. 2009), trans.
denied. Here, Mobley, who had been friends with Rich-
ardson for nearly one year, testified that Richardson
was the man who shot him in the leg and that as he
shot him, Richardson said, “You ain’t going to talk to
me like you talked [sic] to other people.” Tr. p. 289. A
witness, Quanilla Strong, also testified that just after
the shooting, she heard a man say, “Chris, you didn’t
have to shoot him, man, why did you shoot him?” Id.
at 58. This is sufficient evidence to render the admis-
sion of testimony regarding non-testifying witnesses
harmless.
(emphasis added).
If the question before the state court had been whether the
evidence was sufficient to support Richardson’s conviction,
No. 16-1700 15
we would have no quarrel with this reasoning. Mobley’s tes-
timony, buttressed by Strong’s statement, would suffice. But
that was not the question. Instead, the state court knew that it
was addressing whether Richardson’s rights under the Sixth
Amendment’s Confrontation Clause were violated. To answer
that question, a court must look for more than whether there
is a “substantial likelihood that the questioned evidence con-
tributed to the conviction”; the court must instead “be able to
declare a belief that [the error] was harmless beyond a reason-
able doubt.” Chapman v. California, 386 U.S. 18, 24 (1967). The
case that the Indiana court cited, Hape v. State, did present a
Confrontation Clause argument, but it was one that the de-
fendant had forfeited, and the primary holding of the case
was that no fundamental error had occurred because the chal-
lenged messages were not testimonial. 903 N.E.2d at 988–89.
It is therefore of no help to the state in the present matter.
Asking whether there is “no substantial likelihood” that a
result would be different is a far cry from asking whether an
acknowledged constitutional error is “harmless beyond a rea-
sonable doubt.” The latter standard, on which the state had
the burden of proof, is significantly more favorable to a de-
fendant than the one that the state court used. To the extent
that one can infer from the state court’s reasoning that it be-
lieved that a different standard applied, it issued a decision
“contrary to” the law as announced by the Supreme Court of
the United States. This was precisely the kind of mistake that
the Court discussed in its foundational decision defining the
standards in section 2254(d), as amended by AEDPA: Terry
Williams v. Taylor, 529 U.S. 362 (2000).
16 No. 16-1700
In Terry Williams, the Virginia Supreme Court had looked
to Lockhart v. Fretwell, 506 U.S. 364 (1993), instead of to Strick-
land v. Washington, 466 U.S. 668 (1984), to assess whether the
petitioner had received ineffective assistance of counsel. As
Justice O’Connor’s controlling opinion stated, that led to a de-
cision “contrary to” clearly established federal law from the
Supreme Court. See Terry Williams, 529 U.S. at 414–15. Failing
to rely on Chapman was the same kind of error. If we look at
this record instead as one dealing with an unreasonable ap-
plication of an established standard, the result is the same. To
the extent that the Indiana court in Richardson’s case equated
its “no substantial likelihood” standard with Chapman’s
“harmless beyond a reasonable doubt” standard, it unreason-
ably applied the rule established by the U.S. Supreme Court.
One important question remains: whether the state court’s
error, under the “contrary to” branch or the “unreasonable
application” branch of section 2254(d), prejudiced Richard-
son—in other words, what would have happened if the state
court had properly applied the Chapman standard? Since this
is a collateral proceeding, Richardson must show the error
caused him “actual prejudice” as defined by Brecht v. Abra-
hamson, 507 U.S. 619, 637 (1993). See Davis v. Ayala, 135 S. Ct.
2187, 2197–98 (2015) (discussing Brecht). As Ayala clarified,
Brecht’s actual prejudice rule “‘subsumes’ the requirements
that § 2254(d) imposes when a federal habeas petitioner con-
tests a state court’s determination that a constitutional error
was harmless under Chapman.” Id. at 2198. Hence while satis-
fying Chapman remains a prerequisite for habeas corpus pur-
poses, at that stage federal courts “need not ‘formal[ly]’ apply
both Brecht and ‘AEDPA/Chapman.’” Id. (quoting Fry v. Pliler,
551 U.S. 112, 119–120 (2007)) (alteration in original).
No. 16-1700 17
Under the actual prejudice standard, Richardson is enti-
tled to relief only if we have “grave doubt about whether a
trial error of federal law had substantial and injurious effect
or influence in determining the jury’s verdict.” Id. at 2197–98
(internal quotation marks and citation omitted). This requires
“more than a reasonable possibility that the error was harm-
ful.” Id. at 2198 (internal quotation marks and citation omit-
ted).
Richardson meets that bar. If Mobley’s identification of the
shooter had been untainted, we might have concluded that
any error was indeed harmless. Mobley had known Richard-
son for a year (though we do not know how well) and Strong
said that she heard the name “Chris” uttered immediately af-
ter the shooting (though even that was hearsay, as she was re-
peating what she heard someone else say). All it takes is one
person to present evidence that a jury might credit. But there
were serious problems with Mobley’s identification. First, he
admitted that he was drunk at the time of the incident. Sec-
ond, and more importantly, he was not asked to, and did not
simply pick “the shooter” out of the photo array. After posing
a number of leading questions, Detective Azcona just showed
Mobley six photographs and asked him to pick out “Chris
Richardson.” It is hard to imagine a worse identification pro-
cedure. Strong’s testimony was also riddled with problems.
Although she initially said that she could pick the perpetrator
out of a lineup, Strong twice in court asserted that she did not
see the perpetrator in the courtroom. Her physical description
of the assailant was somewhat inconsistent with Richardson’s
appearance, and she claimed that a third man was present—
a person no one else mentioned—and that this unknown third
person said something about “Chris” being the shooter. Last,
if the prosecution had made less out of Holden’s out-of-court
18 No. 16-1700
identification of Richardson, the level of prejudice might have
been low enough to allow the result to stand. But the opposite
happened: even on direct examination, the prosecution
brought out this impermissible testimony, and it then harped
on it from cross-examination, through redirect, and through-
out the closing argument.
This leaves us with the “grave doubt about whether a trial
error of federal law had substantial and injurious effect or in-
fluence in determining the jury’s verdict” to which Ayala re-
ferred. Because the Confrontation Clause error affected only
the trial, Richardson is not entitled to an unconditional writ
of habeas corpus. Instead, we REVERSE the district court’s de-
cision and ORDER that unless the state initiates proceedings to
retry Richardson within 120 days, he is entitled to issuance of
the writ.