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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
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JOHN FRANCIS HAYES,
Petitioner-Appellant,
v.No. 02-6240
MICHAEL YORK, Warden,
Respondent-Appellee.
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Appeal from the United States District Court for the Western District of North Carolina, at Charlotte. Graham C. Mullen, Chief District Judge. (CA-00-399-3-MU)
Argued: September 23, 2002
Decided: November 22, 2002
Before LUTTIG and WILLIAMS, Circuit Judges, and HAMILTON, Senior Circuit Judge.
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Affirmed by published opinion. Judge Luttig wrote the opinion, in
which Judge Williams and Senior Judge Hamilton joined. Senior
Judge Hamilton wrote a concurring opinion.
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COUNSEL
ARGUED: Lyle Joseph Yurko, YURKO & OWENS, P.A., Charlotte,
North Carolina; Michael Smith Scofield, Charlotte, North Carolina,
for Appellant. Clarence Joe DelForge, III, Assistant Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee. ON BRIEF: Thomas M. Dawson, Leaven-
worth, Kansas, for Appellant. Roy Cooper, Attorney General,
NORTH CAROLINA DEPARTMENT OF JUSTICE, Raleigh, North
Carolina, for Appellee.
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OPINION
LUTTIG, Circuit Judge:
Appellant, John Francis Hayes, filed a petition for habeas relief in
the district court under 28 U.S.C. § 2254. The district court denied
Hayes' petition, but granted him a certificate of appealability, 28
U.S.C. § 2253, on the question of whether the admission of various
hearsay statements during his trial violated his rights under the Sixth
Amendment Confrontation Clause. We deny Hayes' petition because
the admission of the statements was neither contrary to, nor an unrea-
sonable application of, clearly established Supreme Court precedent.
I.
In 1996, Hayes was convicted in state court for the second degree
murder of his wife. At trial, North Carolina offered evidence that
Hayes and his wife, Mrs. Hayes, had a turbulent, unfaithful, and abu-
sive marital relationship, which ended with a 1994 altercation that
resulted in Mrs. Hayes' death. Hayes claimed he killed his wife in
self-defense, as she attacked him with a hammer and baseball bat. In
rejoinder to Hayes' claim of self-defense, the state introduced state-
of-mind declarations, which Mrs. Hayes made to friends and boy-
friends, indicating that she was not aggressive towards her husband,
but rather was fearful of him. The hearsay testimony included factual
assertions made by Mrs. Hayes in conjunction with and explanation
of her emotions and feelings, such as assertions that Hayes physically
abused and threatened to kill her.* Throughout the trial, Hayes main-
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*E.g., "[Mrs. Hayes] came in and it was apparent to me she was upset.
. . . I asked her what was wrong. She said she and John had been into
it again. She wanted to know if I was going to tell her how stupid and
dumb she was for putting up with it and not leaving. I told her, "no," I
wasn't going to tell her anything like that. She said, "don't you want to
2
tained that he had never abused or threatened his wife and that the
hearsay statements were unreliable.
Before trial, the prosecution noticed the defense that it intended to
proffer the hearsay statements from Mrs. Hayes' friends and boy-
friends. Because the statements included factual assertions, in addi-
tion to Mrs. Hayes' emotions, Hayes objected in limine to their
admission. The state hearings court, after a voir dire hearing, deter-
mined that some of the statements were admissible under North Caro-
lina's state-of-mind hearsay exception, N.C.R.E. 803(3), and that
some were admissible under the state's residual hearsay exception,
N.C.R.E. 804(b)(5). The court made clear that its decision was with-
out prejudice and that objections could be remade at trial. At trial,
however, Hayes' counsel did not object to the hearsay statements as
the witnesses made them.
After his conviction, Hayes argued on appeal that admission of the
challenged hearsay statements was error. The appellate court
reviewed the statements and concluded that the lower court had prop-
erly admitted them under N.C.R.E. 803(3) and 804(b)(5). Hayes con-
tinued his appeal, successfully petitioning the North Carolina
Supreme Court for discretionary review. That court, though granting
review, held that the appellate court had erred in reviewing the state-
ments because "a motion in limine is insufficient to preserve for
appeal the question of the admissibility of evidence if the defendant
fails to [] object to that evidence at the time it is offered at trial," State
v. Hayes, 350 N.C. 79, 80 (1999), and thus never reviewed the state-
ments' admissibility.
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know." I asked her why. She said John told her that if she ever left him
he would kill her, and he would see her dead before she ever had any of
his money." (J.A. at 1737); "[Mrs. Hayes] came in and sat down, and her
eyes were all swollen which looked like from crying. And I asked her
what was wrong. And she said, "I almost didn't come tonight." I asked
her why. She said John was in one of his rages again. And I asked her
what happened. And she said he got angry with her and unzipped his
pants and urinated on the kitchen floor in front of her and then pushed
her down and put her head down in it and wiped the floor up with her
hair." (J.A. at 1754).
3
Having exhausted direct review of his conviction, Hayes filed a
motion for appropriate relief in state court (i.e., a state habeas peti-
tion). The court held that Hayes' counsel's performance was defi-
cient, contrasting North Carolina's well-established rule requiring
contemporaneous objection to an evidentiary proffer to preserve the
objection for appeal, with Hayes' counsel's failure to object to the
hearsay testimony he initially challenged in limine. Still, the court
held that Hayes' claim ultimately failed because the statements at
issue were admissible under N.C.R.E. 803(3) and 804(b)(5), citing
North Carolina precedent and incorporating the appellate court's anal-
ysis from Hayes' direct appeal. Hayes' subsequent petition for certio-
rari to review the habeas denial was rejected.
Hayes then brought this federal habeas action claiming ineffective
assistance of counsel. The district court denied the petition for habeas
corpus relief, but granted a certificate of appealability, so Hayes
might bring an appeal.
II.
Under Williams v. Taylor, 529 U.S. 362, 412 (2000), when review-
ing a petition under 28 U.S.C. § 2254, we must determine if state
court adjudication was contrary to or involved unreasonable applica-
tion of clearly established federal law, as determined by the Supreme
Court. Thus, we solely inquire whether the state courts' determination
that the hearsay statements were admissible is either contrary to, or
an unreasonable application of, clearly established Supreme Court
precedent.
Hayes may prevail under the "contrary to" analysis only if the state
courts' conclusion of law is directly opposite to one reached by the
Supreme Court or if those courts decided his case differently than one
decided by the Supreme Court on materially indistinguishable facts.
Id. Under the "unreasonable application" analysis, Hayes may prevail
only if the state courts unreasonably applied clearly established prin-
ciples of Supreme Court law to the facts of Hayes' case. Id. None of
these circumstances is met here.
A.
The Supreme Court has held that the Confrontation Clause allows
the admission of hearsay evidence against criminal defendants if it
4
falls within a "firmly rooted hearsay exception" or possesses "particu-
larized guarantees of trustworthiness," Ohio v. Roberts, 448 U.S. 56,
66 (1980); see also Idaho v. Wright, 497 U.S. 805, 815 (1990). Here,
Hayes concedes that N.C.R.E. 803(3) embodies a firmly-rooted
exception, one for state-of-mind declarations, see Appellant's Br. at
17, but he argues that the state courts erred in admitting, under
N.C.R.E. 803(3), the portions of the hearsay conveying factual asser-
tions, since such portions lack the spontaneity of an expression of
feeling, see id. at 19 ("[t]he theoretical underpinning of the reliability
of [state-of-mind hearsay] lies in [its] spontaneity[, like the excited
utterance exception]"). This question, however, is unreviewable in
federal court as it solely concerns state law, over which this court has
no authority. Before this court, Hayes' only real objection could be
that North Carolina's state-of-mind hearsay exception (at least as
applied by the state courts in his case), does not fairly constitute one
of the firmly-rooted hearsay exceptions. While it is not entirely clear
to us if Hayes' intended to raise or did raise this point in the briefs
or at oral argument, particularly in light of his contrary concession as
to the nature of N.C.R.E. 803(3), we would reject it for the reasons
below.
As an initial matter, the Supreme Court never has questioned that
a state-of-mind hearsay exception is one of the firmly-rooted hearsay
exceptions. The history of the state-of-mind exception is long and dis-
tinguished, see Mutual Life Ins. Co. v. Hillmon, 145 U.S. 285 (1892);
Advisory Committee Notes to F.R.E. 803, and the exception exists in
every jurisdiction in the country, whether by statute, court rule, or
common law tradition. North Carolina is on safe ground assuming
that a firmly-rooted state-of-mind exception exists, and that it may
codify it.
Whether North Carolina's state-of-mind hearsay exception encom-
passes declarations that do not fit within the firmly-rooted state-of-
mind hearsay exception recognized by Supreme Court precedent can
only be answered by looking to what the Supreme Court has said
about the basis and character of the firmly-rooted state-of-mind
exception. But, the Supreme Court has not much addressed the excep-
tion's basis or character. In Mutual Life Ins. Co. v. Hillmon, the semi-
nal case confirming the admissibility of state-of-mind declarations, in
which was addressed letters conveying both intention and underlying
5
facts from which the intention arose, the Court did not distinguish
between the different portions of the hearsay. See 145 U.S. at 288-89,
299-300. Nor did the Court, as Hayes claims, draw such a distinction
in the case of Shepard v. United States, 290 U.S. 96 (1933). In Shep-
ard, the Court rejected the statements because they contained no
express reflection of a state-of-mind. The Court said the statements
reflected only the declarant's belief about facts, and the prosecution's
last minute attempt to infer a state-of-mind from them was a transpar-
ent ploy to put the facts before the jury. Id. at 102-04, 106. Here, even
Hayes recognizes that part of the statements conveyed emotions and
feelings.
The Supreme Court has simply never held, nor even suggested, that
state-of-mind declarations that also convey factual assertions (where
such form the basis for the state-of-mind) do not fit within the firmly-
rooted state-of-mind exception, nor that the portion of a state-of-mind
declaration containing an underlying factual assertion must be carved
out from the qualifying statement. Thus, North Carolina's determina-
tion that N.C.R.E. 803(3) is a Sixth Amendment-compliant, firmly-
rooted, state-of-mind hearsay exception, even as it reaches to state-
ments such as are at issue here, is not contrary to Supreme Court pre-
cedent.
Nor has the Supreme Court ever articulated the principle Hayes
contends forces the conclusion that Supreme Court law was unreason-
ably applied in this case: that spontaneity forms the basis for the reli-
ability of state-of-mind declarations. Cf. Appellant's Br. at 19. For
though the Supreme Court does base the categorical admission of
hearsay that falls within firmly-rooted exceptions on the notion that
each such exception has a well-established basis for reliability, see
Ohio v. Roberts, 448 U.S. at 66; Idaho v. Wright, 497 U.S. at 817,
the Court has never said that spontaneity is the basis for the reliability
of state-of-mind declarations. Thus, Hayes has no basis in Supreme
Court law from which to argue that admission of the parts of the
state-of-mind declarations that lack spontaneity resulted in N.C.R.E.
803(3) reaching to statements excluded from the firmly-rooted state-
of-mind exception. Consequently, the state courts did not unreason-
ably apply Supreme Court law in admitting the statements.
Hayes' contention that spontaneity forms the basis for the reliabil-
ity of state-of-mind declarations may, as a theoretical matter, have
6
merit. See Advisory Committee Notes to F.R.E. 803(3); see also
Boliek v. Missouri, 479 U.S. 903 (1986) (Marshall, J.) (dissenting
from denial of cert.) ("[t]here can be no doubt, given the use made of
the evidence by the State in summation, that the testimony as to the
victim's statements was admitted to prove not her state of mind, but
the truth of her belief that petitioner intended to kill her. Cf. F.R.E.
803(3) (statements of memory and belief not admissible to `prove the
fact remembered or believed')."). But since the Court has not clearly
established the principle, this habeas claim fails.
North Carolina's interpretation of its state-of-mind exception, as
both consistent with the firmly-rooted exception and reaching to
statements that contain underlying factual assertions, is shared by a
number of other jurisdictions. See, e.g., State v. Simko, 644 N.E.2d
345 (Ohio 1994); Commonwealth v. Hunter, 416 Mass. 831 (1994);
State v. Steinbuch, 514 N.W.2d 793 (Minn. 1994); State v. Wood, 881
P.2d 1158 (Ariz. 1994); State v. Smith, 868 S.W.2d 561 (Tenn. 1993);
State v. Losson, 865 P.2d 255 (Mont. 1993); Bolin v. State, 544
N.E.2d 1372 (Ind. 1989); State v. Lamb, 767 P.2d 887 (Okla. Crim.
1988). And the Supreme Court has never suggested that these state
courts have erred in interpreting the firmly-rooted state-of-mind
exception to reach to state-of-mind declarations that also convey
underlying factual assertions. The large number of like-minded states,
all having examined their evidentiary rules against Ohio v. Roberts
and Idaho v. Wright, reinforces our conclusion that N.C.R.E. 803(3),
as interpreted by the North Carolina courts, reasonably applying
Supreme Court law, is a firmly-rooted exception.
B.
The admission of the remaining statements under N.C.R.E.
804(b)(5) was also not contrary to, nor an unreasonable application
of Supreme Court precedent. The North Carolina courts, like the
majority of states, have formulated a standard by which to determine
whether or not a statement has "particularized guarantees of trustwor-
thiness," which allow a statement to be admitted under the residual
hearsay exception and in accordance with the demands of the Sixth
Amendment. While the Supreme Court has said that evidence admit-
ted under residual hearsay exceptions "must [] be so trustworthy that
adversarial testing would add little to its reliability," Idaho v. Wright,
7
497 U.S. at 821, the Court has also "decline[d] to endorse a mechani-
cal test for determining [this question of reliability]," id. at 822, and
has instead left it to the states to develop their own approaches.
The standard that the North Carolina courts have formulated for
evaluating whether hearsay evidence has particularized guarantees of
trustworthiness sufficient to admit it under N.C.R.E. 804(b)(5) satis-
fies the Constitution's demands. North Carolina courts inquire as to
(1) assurances of the declarant's knowledge of the underlying events,
(2) the declarant's motivation to speak the truth or otherwise, (3)
whether the declarant has ever recanted the statement, and (4) the
practical availability of the declarant. . . ." See State v. Hayes, 130
N.C.App. at 174. The second and fourth factors perfectly satisfy
Supreme Court precedent, see Idaho v. Wright, 497 U.S. at 814, 821-
22. The first factor is reasonably construed to advance the purpose of
excluding evidence that does not bear an "indicia of reliability," Ohio
v. Roberts, 448 U.S. at 65, because it ensures that only hearsay spo-
ken by a person with demonstrated knowledge of the subject in ques-
tion will be admitted under the rule. And the third factor functions not
as a test for determining if particularized guarantees of trustworthi-
ness exist, cf. Idaho v. Wright, 497 U.S. at 819 ("the relevant circum-
stances include only those that surround the making of the
statement,"), but simply as a heightened barrier to state law admissi-
bility, above and beyond the constitutional threshold, serving to
exclude statements made with particularized guarantees of trustwor-
thiness, but which courts later mistrust.
In this case, the appellate court confirmed that the trial court identi-
fied the correct North Carolina standard and properly applied it. See
State v. Hayes, 130 N.C.App. at 174 ("the determination of trustwor-
thiness is fully supported by [] findings in th [e] record . . ."). The state
superior court considering Hayes' habeas petition reached the same
conclusion (J.A. at 170-73). Our review of the evidence confirms that
their conclusion is justified.
Because the North Carolina standard is not contrary to the Supreme
Court's command nor was applied to the facts of this case in an
unreasonable manner, there was no violation of clearly established
Supreme Court law.
8
CONCLUSION
The state habeas court properly concluded, under Strickland v.
Washington, 466 U.S. 668 (1984), that Hayes had not been denied
effective assistance of trial counsel because counsel's failure to object
had not in any way prejudiced him. See id. at 687. Admitting the
statements was not contrary to nor an unreasonable application of
Supreme Court precedent, and any objection by Hayes' counsel
would have been overruled, consistent with North Carolina law. Thus,
contemporaneous objection would have changed nothing. A fortiori,
denial of Hayes' ineffective assistance of appellate counsel claim was
proper as well.
The district court's denial of Hayes' section 2254 petition for relief
is hereby affirmed.
AFFIRMED
HAMILTON, Senior Circuit Judge, concurring:
I concur in Judge Luttig's thorough opinion. I write separately only
to add my view that, in addition to failing to demonstrate that coun-
sel's performance was deficient, Hayes has failed to demonstrate any
prejudice flowing from the alleged erroneously admitted hearsay evi-
dence. Strickland v. Washington, 466 U.S. 668, 694 (1984).
According to Hayes, there is a reasonable probability that, had the
challenged hearsay evidence, which included factual assertions made
by Mrs. Hayes in conjunction with an explanation of her feelings,
such as assertions that Hayes physically abused and threatened to kill
her, been excluded, the State would have been unable to demonstrate
that the killing was done with malice.
Under North Carolina law, the unlawful killing of a human being
with malice but without premeditation and deliberation is murder in
the second degree. State v. Geddie, 478 S.E.2d 146, 156 (N.C. 1996).
The State may prove malice by the nature of the attack with a deadly
weapon. State v. Robbins, 309 S.E.2d 188, 190 (N.C. 1983). In this
case, Hayes savagely beat his wife to death with a baseball bat caus-
9
ing extensive, severe damage to her skull. Hayes then poured gasoline
(or a similar flammable liquid) on her body and set her on fire. It is
hard to imagine a murder which more clearly demonstrates malice
than the facts of this case. The exclusion of the challenged hearsay
evidence would have done nothing to alter the jury's conclusion that
the murder of Mrs. Hayes was committed with malice.
10