Ocampo v. Vail

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

SANTANA OCAMPO,  No. 08-35586

Petitioner-Appellant,

v.  D.C. No.

3:07-cv-05671-FDB

ELDON VAIL,

OPINION

Respondent-Appellee.



Appeal from the United States District Court

for the Western District of Washington

Franklin D. Burgess, Senior District Judge, Presiding

Argued and Submitted

August 2, 2010—Seattle, Washington

Filed June 9, 2011

Before: William C. Canby, Jr., John T. Noonan and

Marsha S. Berzon, Circuit Judges.

Opinion by Judge Berzon

7981

OCAMPO v. VAIL 7985

COUNSEL

Suzanne Lee Elliott, Seattle, Washington, for the petitioner-

appellant.

Robert M. McKenna, Attorney General of Washington, and

Gregory J. Rosen, Assistant Attorney General, Olympia,

Washington, for the respondent-appellee.

OPINION

BERZON, Circuit Judge:

Following a jury trial in Washington state court, Santana

Ocampo was found guilty of first-degree murder for the

7986 OCAMPO v. VAIL

August 9, 2003, fatal shooting of Julio Morales-Castro.

Ocampo maintains that his constitutional right to confront

witnesses was denied in his jury trial by the admission of tes-

timony by law enforcement officers regarding statements

made by a potential witness who did not testify. The district

court denied his federal petition for habeas corpus relief. We

reverse.

I.

Julio Morales-Castro was fatally shot in the head on the

evening of August 9, 2003, while sitting in his car outside a

pool hall in Tacoma, Washington. Members of the Hispanic

gang Surreño 13 frequently “hung out” in the area. A witness

at the scene reported seeing a blue minivan driving away after

the shooting; other witnesses reported seeing three young,

male, Hispanic gang members running from the scene.

The primary issue at trial was whether Ocampo was present

at the scene of the crime. The prosecution claimed that

Ocampo was in the van and, with a Surreño 13 gang member

named Jose Hernandez,1 attempted to steal Morales-Castro’s

car before shooting him. Ocampo’s defense was that he was

at a party, a Quinceañera,2 the entire time.

Detectives investigating the shooting showed photos of

several Surreño 13 gang members to witnesses, who identi-

fied Hernandez as one of the young men running from the scene.3

1

Hernandez testified that he was not a gang member. But both the pros-

ecution and the defense maintained that he was, and detectives explained

that he was in their reports as a Surreño 13 gang member or a known asso-

ciate of the gang.

2

A Quinceañera is a coming-of-age ceremony held by some Latin

Americans on a girl’s fifteenth birthday.

3

Witnesses also identified a gang member named Nick Solis as one of

the young men running from the scene. Detectives did not follow up on

this lead because Hernandez told them that Solis was not present. Whether

Hernandez’s claim that only he and Ocampo were present at the shooting

was believable, and whether the detectives had adequately corroborated

that Ocampo was present and Solis was not, was a major issue in the trial.

OCAMPO v. VAIL 7987

Hernandez implicated Ocampo and led detectives to Balde-

mar Vela and Mesial Vasquez, who were also interviewed.

At trial, Detective Webb testified that during his first inter-

view with police, Hernandez named the person who shot

Morales-Castro. Webb went on to state that, on the basis of

this information, he drafted a search warrant for Ocampo’s

residence and arrested Ocampo when the search warrant was

served. Webb also reported that on the basis of the informa-

tion provided by Hernandez, he believed Ocampo was the

shooter.

Hernandez also testified at the trial. He named Ocampo as

the shooter, maintaining that his factual account at trial was

consistent with the information he provided the police in his

initial post-arrest statement.4

Another witness at Ocampo’s trial was Vela. (Both he and

Hernandez were problematic witnesses for reasons discussed

below.) Vasquez, in contrast, did not appear at trial. Instead,

two detectives were allowed to testify that his statements to

police had corroborated Hernandez’s statements to the police,

and by implication, his testimony at trial. This appeal is

focused on those detectives’ testimony about what Vasquez

had said to the police.

Although this appeal centers on the two detectives’ testi-

mony about Vasquez, we begin by discussing Vela’s and Her-

nandez’s police interviews and trial testimony in detail. Their

statements and testimony are pertinent both to the merits of

the confrontation issue, for reasons that will appear, and to

assessing the degree of prejudice caused by any Confrontation

Clause violation.

4

While the defense impeached Hernandez with several inconsistencies

between his testimony and his post-arrest statement, there was no sugges-

tion that Hernandez’s identification of Ocampo as the shooter was in any

way inconsistent with his post-arrest statement to police.

7988 OCAMPO v. VAIL

A. Vela

Vela was reluctant to provide information to police because

he was afraid of retaliation by the Surreño 13 gang. He did

tell detectives, however, the following:

Vela, out drinking with Hernandez on the night of the

shooting, gave a ride in his van to Hernandez and two of Her-

nandez’s friends. When Vela stopped near the pool hall to

purchase beer, Hernandez and his two friends got out of the

van and went in one direction, while Vela walked in another.

About two minutes before Hernandez reappeared, Vela heard

what he thought was the sound of a firecracker.

When he returned from wherever he had gone, Hernandez,

nervous and sweating, found Vela outside the store and

insisted that they needed to leave because “someone was trip-

ping on him.”5 Vela and Hernandez then took different routes

back to Vela’s van. When Vela arrived, Hernandez and his

two friends were already seated in the van. According to Vela,

he drove, and Hernandez was in the front passenger seat. As

he was driving, Vela heard someone in the backseat say, “I

was tripping, so I had to shoot him.”

After giving his story, Vela identified Hernandez from a

montage of black-and-white photographs. What happened

next is disputed: According to Vela’s trial testimony, he could

not identify the two friends with Hernandez the night of the

shooting. During his interrogation, the detectives gave him a

single, color, Polaroid photograph and asked if the person in

the photograph was one of Hernandez’s friends. Vela testified

that when he told the detectives that he did not know, they

responded by telling Vela that the person in the photograph

had already admitted to being in the van. Vela then responded

5

Vela explained this statement as meaning “someone was messing with

him [or] something of that nature.”

OCAMPO v. VAIL 7989

by saying, “He probably was. If he is saying he was in my

van, then he was.”

Detectives Yerbury and Ringer testified differently from

Vela. They explained that when interviewed, Vela was so

scared of gang retaliation that he talked about moving away

or joining the military. According to the detectives, Vela

“minimized his knowledge” and spoke in vague generalities.

The detectives showed Vela a photograph of Ocampo, who

was being interviewed in a different room. They did this

because they were concerned that if they waited until Ocampo

had been booked, Vela would be uncooperative and back-

pedal. According to the detectives, Vela readily identified

Ocampo as one of Hernandez’s two friends,6 although he did

not know if Ocampo was the one who spoke of shooting

someone.

B. Hernandez

Hernandez agreed to testify for the State in exchange for a

second-degree murder plea agreement with a recommended

sentence of 244 months.7 He testified as follows:

On the night of the shooting, Vela gave him, Ocampo and

Vasquez a ride. When Vela stopped at the pool hall, Her-

nandez and Ocampo wandered off and decided to steal a car

they saw because it had valuable tires and rims. Ocampo told

Hernandez that he had a gun and would keep a lookout while

6

Before trial, the trial court denied Ocampo’s motion to suppress Vela’s

identification. The court found Vela not credible in denying he had identi-

fied Ocampo and in claiming that he had not seen Hernandez’s friends on

the night of the shooting sufficiently well to identify them.

7

Hernandez was originally offered a deal with a recommended sentence

of detention in a juvenile facility until the age of 21 in exchange for testi-

mony against Ocampo. The state revoked the deal after Hernandez told

two juvenile detention officers that he was the shooter. After his confes-

sions, he was recharged as an adult and agreed to the second, less favor-

able plea agreement.

7990 OCAMPO v. VAIL

Hernandez broke into the car. As Hernandez was walking

toward the car, Morales-Castro left the pool hall and headed

toward the same car. Hernandez then attempted to walk away,

but Ocampo urged him not to. Complying, Hernandez contin-

ued forward and stood near the front of Morales-Castro’s car

while Ocampo approached Morales-Castro and asked him for

bus money. Morales-Castro responded he had no money. He

then attempted to drive off, but Ocampo shot him in the head.

The State also called a juvenile detention officer, who testi-

fied that Hernandez had confided that he was in custody for

murder and that he was the shooter. He informed her that she

was the only one who knew the truth, and that he was going

to plead not guilty. Hernandez then told another detention

officer the same thing. The two officers decided that they had

to file a report about his confessions and did so. The State

argued to the jury that Hernandez’s confessions were lies,

designed to show off to his friends and to ensure that he was

not regarded as a snitch.

C. Vasquez

As noted, this case centers on what Detectives Ringer and

Webb said at trial about corroborating statements made by the

other passenger in the van that night, Vasquez. Vasquez was

not available at trial because, according to the State’s “best

information . . . he and his family [had] returned to Mexico.”

Ringer had not personally interrogated Vasquez. He none-

theless testified that Vasquez’s statements helped eliminate as

suspects some individuals whom other witnesses had identi-

fied as being involved in the shooting:8

A As we investigated further, we found that one of

the photographs, Jose Hernandez’s identification

8

The apparent double-hearsay problem presented by this scenario is not

an issue raised in this appeal.

OCAMPO v. VAIL 7991

of him, was accurate, but then some of the oth-

ers were people that they knew but had not actu-

ally been involved in the shooting.

Q Okay. How were you able to determine that?

A Well, eventually Jose Hernandez was arrested,

he gave a statement. Later we contacted Balde-

mar Vela, and he gave a statement that verified

what Jose Hernandez said. And still later, Mesial

Vasquez was interviewed and he also verified

the other two. And these excluded several indi-

viduals that had been named that night [by wit-

nesses who saw young men fleeing after the

shooting].

Q So he verified — Baldemar and he verified Jose

Hernandez’s statement?

A That’s my understanding, yes.

Later in his testimony, Ringer again emphasized that

Vasquez’s statements had been used to rule out people who

had previously been suspects:

Q Now, some of the photographs that were identi-

fied by these people later turned out, at least

according to your investigation, to not be

involved in this case, right?

A That’s correct.

Q And the reason you say you knew that was

because of a statement given by Jose Hernandez,

right?

A That was just part of it. Statement given by Jose

Hernandez, statement given by Baldemar Vela,

statement by Mesial Vasquez.

7992 OCAMPO v. VAIL

The prosecution later sought to use Detective Ringer’s testi-

mony about Vasquez’s statements to confirm Hernandez’s

participation and to implicate Ocampo:

Q Were you able to corroborate that [Hernandez]

actually was a participant?

A Yes.

Q How were you able to do that?

A Through his own — his own admissions,

through Baldemar Vela, through Mesial

Vasquez.

Q What do you mean through Mesial Vasquez?

A My understanding, [sic] statement he gave also

indicated that [Hernandez] was present.

Q Okay. And Mesial Vasquez would be the fourth

person in the van?

A That’s correct.

Q And at some point, Santana Ocampo’s name

surfaced during the course of the investigation?

A It did.

...

Q Were you able to corroborate that he was in the

van at the time of the shooting?

[DEFENSE COUNSEL]: I am going to object,

request a side-bar.

OCAMPO v. VAIL 7993

...

(Jury not present.)

[DEFENSE COUNSEL]: Your honor, with the

questioning that’s happening, I see where this is

going. They are going to bring in next a statement by

Mesial Vasquez [that] Santana Ocampo was in the

van. Mesial Vasquez is not here, we are not able to

confront this witness, don’t know where he is.

State’s not going to produce him and I want to make

sure there is no hearsay from Mesial Vasquez of my

client being in that van coming into this testimony.

Improper, it’s hearsay, and we are not able to con-

front this witness, who is absolutely confrontable, if

he were here.

[PROSECUTOR]: [The defense counsel] asked if

there had been any evident [sic] — actually, he made

the statement there had been no efforts to corrobo-

rate and I think that there certainly were, and I think

there certainly was, and I think there has — there

was testimony both through direct and redirect and

now in cross that indicates Mr. Vasquez’s corrobo-

rating exactly what everybody else is corroborating.

THE COURT: Well, I don’t think it opens the

door to introduce Vasquez’s statement beyond the

extent that there has already been testimony to

efforts to corroborate. I think that’s a dangerous road

to go down and certainly don’t want to have a

Crawford-related problem.

[PROSECUTOR]: I have gone as far as I intend

to go in that regard. I just have a couple more.

THE COURT: All right.

7994 OCAMPO v. VAIL

[DEFENSE COUNSEL]: I understand. I had to

make sure that didn’t happen.

THE COURT: Okay. We will take just a real

quick break, let the jurors finish up in there and then

we will resume.

(Recess taken.)

(Jury present.)

THE COURT: Okay, pleased be seated.

Q Detective Ringer, you were able to corroborate

the presence of Jose Hernandez at the scene?

A Yes.

Q And you were able to corroborate the presence

of Santana Ocampo at the scene —

A Yes, we were.

Hernandez testified immediately after Detective Ringer and

named Ocampo as the shooter. His testimony clarified that he

had also named Ocampo as the shooter in his post-arrest state-

ments to police.

Detective Webb testified shortly after Hernandez. Unlike

Detective Ringer, he had spoken directly with Vasquez about

the shooting. When he began to testify about that interview,

the defense objected to some of the questions regarding Vaz-

quez’s interview:

Q Did Mr. Vasquez talk to you about the murder

that occurred on August 10th?

A He did.

OCAMPO v. VAIL 7995

Q Okay. Was he helpful as far as giving you infor-

mation, or was he reluctant to talk?

A Reluctantly helpful.

Q Did he tell you the facts as he saw them and as

he knew them about what had happened on

August 10th?

A He did.

Q Were those facts consistent with —

[DEFENSE COUNSEL]: Your Honor, I am

going to object here, we have a right to confront this

witness.

THE COURT: I am going to sustain to the ques-

tion.

[PROSECUTOR]: I was going to ask if his state-

ment was consistent with other statements.

[DEFENSE COUNSEL]: Your Honor, I —

THE COURT: Sustained.

Other portions of Webb’s testimony, however, did indicate

that Vasquez had identified Ocampo as being present at the

shooting. For example, in discussing how he came up with a

list of clothing items for a search warrant for Ocampo’s resi-

dence, Webb testified that he “solicited information from both

Mr. Hernandez and Mr. Vasquez as to what everybody might

have been wearing that night.” Moreover, on redirect, Webb

testified that he did not show a photo montage with Ocampo’s

photo to witnesses to the shooting in part because Vasquez

had identified Ocampo as the shooter:

7996 OCAMPO v. VAIL

Q Detective, you indicated that you didn’t go back

and show additional photo montages which

included Santana Ocampo to witnesses after you

got statements from Mesial Vasquez, after you

got statements from Baldemar Vela and after

you got statements from Jose Hernandez. Is that

something that you would usually do when you

have three eyewitnesses indicate the shooter is,

do you then go around with pictures to —

[DEFENSE COUNSEL]: Objection. Mischarac-

terizes the evidence.

THE COURT: Sustain to the form of the ques-

tion.

Q Is there a reason you didn’t go back later and

show photo montages with Santana Ocampo to

witnesses?

A I would say we had a coconspirator that had

confessed his involvement and two additional

witnesses besides that person who implicated the

defendant and we would focus then on that.

(Emphasis added).

The importance of the two detectives’ testimony regarding

Vasquez’s interview was highlighted by the prosecution in

closing arguments. The prosecution emphasized Vasquez’s

statements:

The detectives didn’t stop with Mr. Vela. They

talked to Mesial Vasquez, it’s my understanding they

talked to him on August 27th about his whole scene

and he confirmed Jose Hernandez. He was there

driving back and forth, a shooting happened, all con-

OCAMPO v. VAIL 7997

firmed by Mesial Vasquez, who at this point we

don’t know where he is. He’s probably left the area.

And the prosecutor went on to argue “Ladies and gentlemen,

Jose’s gone back and forth to some extent about the facts of

this, but his statements, the core of his statements, were cor-

roborated by Mesial Vasquez, Baldemar Vela and Marcos9, as

well as physical evidence.” (Emphasis added). The prosecutor

also emphasized that “there is corroborating evidence that

Jose Hernandez was being truthful,” and that the one thing

about which Hernandez had always been consistent was that

Ocampo was the shooter. Finally, in its rebuttal, the prosecu-

tion argued that Jose Hernandez’s testimony should leave the

jury “convinced beyond a reasonable doubt [because] this . . .

fourth guy in the car backs him up.”10

Ocampo did not testify, but he presented several witnesses

who testified that he was at the Quinceañera at the time of the

shooting. The defense argued in closing that Hernandez killed

Morales-Castro and was lying to save himself, Nick Solis,

and, possibly, Vasquez. The jury, not persuaded, found

Ocampo guilty of first-degree murder.

Ocampo appealed his conviction on the ground, among oth-

ers, that his right to confrontation was denied by the two

detectives’ testimony regarding statements by Vasquez. Iden-

tifying Crawford v. Washington, 541 U.S. 36 (2004), as the

9

Marcos is Jose Hernandez’s older brother. He was not at the scene of

the crime, but provided information to the detectives corroborating his

brother’s version of events. His trial testimony contained contradictions as

to whether Ocampo was at the Quinceañera during the time that Her-

nandez was not. In closing, the defense argued that Marcos and Hernandez

could easily have concocted their story together before each spoke to the

police.

10

The State never claimed anyone other than Vasquez was in the van

with Ocampo, Hernandez, and Vela. So the context makes it clear that

“fourth guy” refers to Vasquez. The prosecutor also referred to Vasquez

as the fourth person in the van when questioning witnesses.

7998 OCAMPO v. VAIL

controlling authority, the Washington Court of Appeals held

that “Ocampo [was] not entitled to a new trial based on this

issue.” Regarding Detective Ringer’s testimony, the state

appellate court noted that Ocampo did not object to that testi-

mony, and cited State v. Swan, 790 P.2d 610, 635 (Wash.

1990) for the proposition that “[t]he absence of a motion for

mistrial at the time of the argument strongly suggests to a

court that the argument or event in question did not appear

critically prejudicial to an appellant in the context of the

trial.” The court of appeals also cited State v. Lynn, 835 P.2d

251, 254 (Wash. Ct. App. 1992), which requires a constitu-

tional error raised for the first time on appeal to be manifest,

and suggested that the Confrontation Clause error raised by

Ocampo was not manifest because “Detective Ringer’s testi-

mony only implied the outlines of Vasquez’s statement.”

As to Detective Webb’s testimony, the court held that there

was no Confrontation Clause violation because “the detective

did not testify to the substance of any statements Vasquez

made.” The court also noted that Ocampo was able to cross-

examine Detective Webb on whether any statements were

made.

Finally, as to the prosecutors’ closing remarks focusing on

what Vasquez had said, the court noted that Ocampo did not

object to the remarks, citing State v. Brown, 940 P.2d 546,

564-65 (Wash. 1997), for the proposition that a “defendant’s

failure to object waives improper closing remarks unless the

comments are so flagrant and ill-intentioned that the resulting

prejudice could not be alleviated by a curative instruction.”

The Washington Supreme Court denied review.

Ocampo then filed a federal habeas petition raising several

claims. Denying the petition, the district court reasoned, as to

Ocampo’s confrontation claim, that there was no Confronta-

tion Clause problem, because (1) “no testimony as to the sub-

stance of any statements made by Mr. Vasquez” was

presented by Detective Webb; (2) allowing Detective Ring-

OCAMPO v. VAIL 7999

er’s testimony was not contrary to, or an unreasonable appli-

cation of, clearly established Supreme Court law; and (3) the

state court’s decision regarding Detective Ringer’s testimony

was not based on an unreasonable determination of the facts.

On appeal, Ocampo pursues the Confrontation Clause

claim alone.

II.

Ocampo’s petition was filed after the effective date of the

Anti-Terrorism and Effective Death Penalty Act of 1996, Pub.

L. No. 104-132, 110 Stat. 1214 (“AEDPA”), and his claims

were rejected by the state courts on the merits. So we may

grant relief only if the last reasoned state decision was

“ ‘based on an unreasonable determination of the facts in light

of the evidence presented in [the] State court proceeding’ ” or

on a legal determination that was “ ‘contrary to, or involved

an unreasonable application of, clearly established Federal

law, as determined by the Supreme Court of the United

States.’ ” Kennedy v. Lockyer, 379 F.3d 1041, 1046 (9th Cir.

2004) (quoting 28 U.S.C. § 2254).

To meet the “unreasonable determination” standard under

§ 2254(d)(2), the habeas court “must be convinced that an

appellate panel . . . could not reasonably conclude that the

finding is supported by the record . . . [or] that any appellate

court to whom the defect is pointed out would be unreason-

able in holding that the state court’s fact-finding process was

adequate.” Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.

2004) (internal citations omitted). “[T]he state-court fact-

finding process is undermined where the state court has

before it, yet apparently ignores, evidence that supports peti-

tioner’s claim.” Id. at 1001.

“Under the ‘unreasonable application’ clause, a federal

habeas court may grant the writ if the state court identifies the

correct governing legal principle from [the Supreme] Court’s

8000 OCAMPO v. VAIL

decisions but unreasonably applies that principle to the facts

of the prisoner’s case.” Williams v. Taylor, 529 U.S. 362, 413

(2000). The state court’s decision must be “more than incor-

rect or erroneous”; it “must be objectively unreasonable.”

Lockyer v. Andrade, 538 U.S. 63, 75 (2003). As the Supreme

Court recently emphasized in Harrington v. Richter, ___ U.S.

___, 131 S. Ct. 770 (2011), “ ‘[E]valuating whether a rule

application was unreasonable requires considering the rule’s

specificity. The more general the rule, the more leeway courts

have in reaching outcomes in case-by-case determinations.’ ”

Id. at 786 (quoting Yarborough v. Alvarado, 541 U.S. 652,

664 (2004)) (alteration in original). “ ‘[I]t is not an unreason-

able application of clearly established Federal law for a state

court to decline to apply a specific legal rule that has not been

squarely established by [the Supreme] Court.’ ” Id. (quoting

Knowles v. Mirzayance, 556 U.S. ___, ___, 129 S. Ct. 1411,

1413-14 (2009)) (alteration in original). “Under § 2254(d), a

habeas court must determine what arguments or theories sup-

ported or, as here, could have supported, the state court’s

decision; and then it must ask whether it is possible fair-

minded jurists could disagree that those arguments or theories

are inconsistent with the holding in a prior decision of [the

Supreme] Court.” Id.

A.

[1] The merits of Ocampo’s Confrontation Clause claim

are governed by Crawford,11 the Supreme Court’s landmark

11

It is possible to read the state appellate court’s decision as rejecting

Ocampo’s confrontation claim, at least as to Detective Ringer’s testimony,

on the basis of a state procedural rule. But the State has not raised a proce-

dural default defense to the Confrontation Clause claim either in the dis-

trict court or here, and, in its briefing to us, it terms the state court’s

Confrontation Clause ruling as one “on the merits.” The defense has there-

fore been waived. See Franklin v. Johnson, 290 F.3d 1223, 1230-31 (9th

Cir. 2002). Although we have discretion to consider procedural default sua

sponte, we do so only in extraordinary circumstances. Slovik v. Yates, 556

F.3d 747, 751-52 n.4 (9th Cir. 2009); Vang v. Nevada, 329 F.3d 1069,

1073 (9th Cir. 2003); Franklin, 290 F.3d at 1233. There are no extraordi-

nary circumstances in this case warranting sua sponte consideration.

OCAMPO v. VAIL 8001

decision construing the Sixth Amendment “right [of a crimi-

nal defendant] . . . to be confronted with the witnesses against

him.” Crawford held that the Clause forbids “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.” 541 U.S. at

53-54.

[2] The state appellate court correctly identified Crawford

as the controlling authority for Ocampo’s Confrontation

Clause claim. Our initial question, then is whether the state

appellate court unreasonably applied Crawford to the facts of

Ocampo’s case. See Williams, 529 U.S. at 413. In addressing

that question, we consider in turn three issues: first, whether

Vasquez’s statements to police were testimonial; second,

whether those statements were admitted against Ocampo at

trial; and third, whether the Confrontation Clause exception

recognized in Crawford applies, i.e., whether, although

Vasquez was unavailable to testify, Ocampo had had a prior

opportunity to cross-examine him.

1.

Under Crawford, the admission of Vasquez’s statements to

the two detectives is not a Confrontation Clause violation

unless those statements were testimonial. 541 U.S. at 53-54;

Davis v. Washington, 547 U.S. 813, 821 (2006).12 There is no

question that they were.

[3] Crawford explained that “[s]tatements taken by police

officers in the course of interrogations are . . . testimonial

under even a narrow standard.” 541 U.S. at 52. “Whatever

12

Davis was decided two months after the state appellate court’s deci-

sion in this case, but well before the Washington Supreme Court denied

review. Davis, in any event, simply elucidates Crawford; it is Crawford

that sets forth the governing clearly established Supreme Court precedent

with regard to the basic coverage of the Confrontation Clause.

8002 OCAMPO v. VAIL

else the term [‘testimonial’] covers, it applies at a minimum

to . . . police interrogations.” Id. at 68. On Ocampo’s appeal,

the state appellate court so acknowledged, stating that the def-

inition of “testimonial . . . includes statements elicited in

response to structured police questioning during an investiga-

tion.” In Davis, the Supreme Court noted, similarly, that

“[t]he product of such interrogation, whether reduced to writ-

ing . . . or embedded in the memory (and perhaps notes) of

the interrogating officer, is testimonial.” 547 U.S. at 826.

Here, Vasquez’s statements were made to detectives question-

ing him as part of their investigation into the events surround-

ing Morales-Castro’s murder, and as such were undoubtedly

testimonial.

2.

[4] The state appellate court implied that Vasquez’s state-

ments were not admitted against Ocampo at trial. Specifically,

the state court stated that Detective Webb “did not testify to

the substance of any statements Vasquez made,” and that

“Detective Ringer’s testimony only implied the outlines of

Vasquez’s statement.” We conclude that Ringer’s testimony

indisputably conveyed some of the critical substance of

Vasquez’s statements to the jury, in violation of the Confron-

tation Clause, even though his testimony was not detailed. We

also hold that the state appellate court’s factual understanding

regarding the limited nature of Webb’s testimony about

Vasquez was objectively unreasonable under AEDPA, and

that, reasonably understood, Webb’s testimony concerning

Vasquez violated the Confrontation Clause.

(i) We begin by considering the clearly established

Supreme Court law regarding the degree of detail in which an

out-of-court statement must be presented at trial to be covered

by the Confrontation Clause. Our conclusion is that before

Crawford, it was clearly established that testimony from

which one could determine the critical content of the out-of-

court statement was sufficient to trigger Confrontation Clause

OCAMPO v. VAIL 8003

concerns, and that, far from undermining that standard, Craw-

ford established principles with which that aspect of the pre-

Crawford Confrontation Clause jurisprudence are fully con-

sistent.

[5] Before Crawford, the Supreme Court treated out-of-

court statements as statements triggering the protections of the

Confrontation Clause, even if the in-court testimony described

rather than quoted the out-of-court statements: In Idaho v.

Wright, 497 U.S. 805 (1990), the Court held that the trial

court had violated the defendant’s confrontation rights by

allowing a pediatrician to describe a child’s answers to his

questions about sexual abuse from “notes [that] were not

detailed.” Id. at 811; see id. at 825-27. Also, both the Con-

frontation Clause and the hearsay rules cover “statements”

offered as proof of a fact at trial, Crawford, 541 U.S. at 51-52;

Fed R. Evid. 801(a) and (c), and both the constitutional con-

frontation assurance and the hearsay rules “protect similar

values . . . and stem from the same roots.” Ohio v. Roberts,

448 U.S. 56, 66 (1980) (quotations omitted), abrogated on

other grounds by Crawford, 541 U.S. 36. Before Crawford,

the Court routinely considered descriptions of out-of-court

statements, as well as questions or transcripts of them, as

“statements” for hearsay rule purposes. See, e.g., Moore v.

United States, 429 U.S. 20 (1976); Williamson v. United

States, 512 U.S. 594, 597 (1994). It was therefore clearly

established Supreme Court law before Crawford that in-court

descriptions of out-of-court statements, as well as verbatim

accounts, are “statements” and can violate the Confrontation

Clause, if the requisite requirements are otherwise met.

[6] Crawford altered Confrontation Clause law so that it

generally covers “testimonial” out-of-court statements, 541

U.S. at 51-52, whether or not they “fall[ ] within a firmly

rooted hearsay exception.” Roberts, 448 U.S. at 66. But noth-

ing in Crawford addressed, or undermined, the established

principle that in-court testimony could trigger Confrontation

Clause concerns by describing, but not quoting, an out-of-

8004 OCAMPO v. VAIL

court statement that would otherwise come within the Con-

frontation Clause.

[7] To the contrary, it would be an unreasonable applica-

tion of the core Confrontation Clause principle underlying

Crawford to allow police officers to testify to the substance

of an unavailable witness’s testimonial statements as long as

they do so descriptively rather than verbatim or in detail.

Crawford’s holding rests on the premise that “the use of ex

parte examinations as evidence against the accused” was “the

principal evil at which the Confrontation Clause was direct-

ed.” 541 U.S. at 50. In applying this principle in Davis, the

Court did “not think it [was] conceivable” that the Confronta-

tion Clause could be interpreted to allow “a note-taking

policeman [to] recite the unsworn hearsay testimony of the

declarant.” 547 U.S. at 826 (emphasis omitted). In other

words, Crawford was concerned with ensuring that out-of-

court testimonial statements, taken ex parte and without trial-

like protections, were not used as evidence before the jury if

the speaker could not be cross-examined. Permitting a police

officer to summarize or outline an out-of-court statement in

no way corrects for the affront to the purpose of the Clause,

as it was explained in Crawford. The Confrontation Clause

provides a procedural check on “[t]he involvement of govern-

ment officers in the production of testimonial evidence.”

Crawford, 541 U.S. at 53. Where the government officers

have not only “produced” the evidence, but then condensed it

into a conclusory affirmation for purposes of presentation to

the jury, the difficulties of testing the veracity of the source

of the evidence are not lessened but exacerbated. With the

language actually used by the out-of-court witness obscured,

any clues to its truthfulness provided by that language — con-

tradictions, hesitations, and other clues often used to test cred-

ibility — are lost, and instead, a veneer of objectivity

conveyed.

Labeling such digested testimony as a mere “outline” of,

rather than a description or summary of, the substance of out-

OCAMPO v. VAIL 8005

of-court statements cannot reasonably alter these conclusions

or toss the testimony outside the reach of the Confrontation

Clause as interpreted in Crawford.13 Whatever locution is

used, out-of-court statements admitted at trial are “state-

ments” for the purpose of the Confrontation Clause both pre-

and post-Crawford if, fairly read, they convey to the jury the

substance of an out-of-court, testimonial statement of a wit-

ness who does not testify at trial.

(ii) In both non-AEDPA cases14 and cases covered by

AEDPA, several other circuits have applied the principle that

13

Mason v. Yarborough, 447 F.3d 693 (9th Cir. 2006) suggested that,

under Crawford, there is an open question as to whether testimony allud-

ing to a non-testifying witness’s statements violates the Confrontation

Clause if the witness’s words are never admitted into evidence, indicating

that if a witness’s “words were never admitted into evidence, he could not

‘bear testimony’ against [the defendant].” Id. at 696. But Mason did not

decide this issue or engage in any substantive discussion of it. More

importantly, the testimony in Mason alluded to the codefendant’s state-

ment without implicating Mason. “For all the jury knew, [the codefendant]

confessed to his own involvement in the shootings and was arrested.” Id.

It was opaque evidence of that kind that Mason had in mind. Here, as

explained in more detail below, Detectives Ringer and Webb testified

regarding statements by Vasquez that, as described by the detectives,

indisputably implicated Ocampo. Thus, the “bear testimony against” con-

cern articulated in Mason has no application here.

Moreover, the recent Supreme Court decision in Melendez-Diaz v. Mas-

sachusetts, 129 S. Ct. 2527 (2009) undermines the reasoning in Mason.

Specifically, in Melendez-Diaz, the Supreme Court clarified that “[t]he

text of the [Sixth] Amendment contemplates two classes of witnesses —

those against the defendant and those in his favor. The prosecution must

produce the former; the defendant may call the latter. . . . [T]here is not

a third category of witnesses, helpful to the prosecution, but somehow

immune from confrontation,” noting that any other view “would be con-

trary to longstanding case law.” Id. at 2534 (footnote omitted) (emphasis

in original).

14

We discuss several non-AEDPA cases because they express a general,

consistent understanding of the reach of the Confrontation Clause, and so

are at least informative as to whether a contrary view would be unreason-

able.

8006 OCAMPO v. VAIL

testimony communicating the substance of absent witnesses’

statements can run afoul of the Confrontation Clause even

when there is no verbatim account of the out-of-court state-

ment. The First Circuit recently held that “the right to cross-

examine an out-of-court accuser applies with full force” even

in circumstances where “the actual statements” of the out-of-

court declarant were not admitted. United States v. Meises,

___ F.3d ___, 2011 WL 1817855 at *12 (1st Cir. May 13,

2011). Relying on Crawford, the First Circuit concluded that

“[i]t makes no difference that the government took care not to

introduce [the out-of-court declarant’s] ‘actual statements’ ”

because “[t]he opportunity to cross-examine the declarant ‘to

tease out the truth,’ Crawford, 541 U.S. at 67, is no less vital

when a witness indirectly, but still unmistakeably, recounts a

[declarant’s] out-of-court accusation.” Id. The First Circuit

went on to reason that “if what the jury hears is, in substance,

an untested, out-of-court accusation against the defendant,

particularly if the inculpatory statement is made to law

enforcement authorities, the defendant’s Sixth Amendment

right to confront the declarant is triggered.” Id.

Other circuits agree. The Seventh Circuit, relying on Craw-

ford, has recognized that allowing police to refer to the sub-

stance of witnesses’ statements as they “narrate the course of

their investigations, and thus spread before juries damning

information that is not subject to cross-examination, would go

far toward abrogating the defendant’s rights under the sixth

amendment.” United States v. Silva, 380 F.3d 1018, 1020 (7th

Cir. 2004). Similarly, in Favre v. Henderson, 464 F.2d 359

(5th Cir. 1972), the Fifth Circuit held that the defendant’s

confrontation rights, as defined by the Supreme Court in Dut-

ton v. Evans, 400 U.S. 74 (1970), were violated because “tes-

timony was admitted which led to the clear and logical

inference that out-of-court declarants believed and said that

[the defendant] was guilty of the crime charged.” Favre, 464

F.2d at 364. “Although the officer never testified to the exact

statements made to him by the informers, the nature of the

statements . . . was readily inferred.” Id. at 362.

OCAMPO v. VAIL 8007

The Fifth Circuit has applied the same logic in at least one

post-AEDPA habeas case: In Taylor v. Cain, 545 F.3d 327

(5th Cir. 2008), the Fifth Circuit relied on Ohio v. Roberts on

the salient point in granting habeas in a case with facts similar

to those here. The court held that “[p]olice officers cannot,

through their trial testimony, refer to the substance of state-

ments given to them by nontestifying witnesses in the course

of their investigation, when those statements inculpate the

defendant.” Id. at 335.

In another post-AEDPA habeas case, the Second Circuit

clarified that “[t]he relevant question is whether the way the

prosecutor solicited the testimony made the source and con-

tent of the conversation clear.” Ryan v. Miller, 303 F.3d 231,

250 (2d Cir. 2002). Ryan held that “[i]f the substance of the

prohibited testimony is evident even though it was not intro-

duced in the prohibited form, the testimony is still inadmissi-

ble” under the Supreme Court’s Confrontation Clause

precedents. Id. at 249.15

Finally, the Eleventh Circuit, relying on Dutton, also held,

pre-AEDPA, that the Confrontation Clause is violated when

police testify to the substance of inculpatory out-of-court

statements. Hutchins v. Wainwright, 715 F.2d 512, 516 (11th

Cir. 1983); see id. (“Although the officers’ testimony may not

have quoted the exact words of the informant, the nature and

substance of the statements suggesting there was an eyewit-

ness and what he knew was readily inferred”).

15

In an earlier, non-AEDPA case, the Second Circuit relied on the prin-

ciple established in Bruton v. United States, 391 U.S. 123 (1968), in hold-

ing that testimony containing implicit accusations violates the

Confrontation Clause even if the testimony does not “reveal[ ] in detail”

the content of the out-of-court statements at issue. Mason v. Scully, 16

F.3d 38, 43 (2d Cir. 1994). See also United States v. Reyes, 18 F.3d 65,

69 (2d Cir. 1994) (“[A]lthough the jury was not told exactly what words

[the co-defendants] had spoken, [the witnesses] testimony clearly con-

veyed the substance of what they had said”).

8008 OCAMPO v. VAIL

[8] In sum, it is both clearly established Supreme Court

law unaffected by Crawford and an unreasonable application

of the rule adopted in Crawford to regard summarizing — or

“outlining” — the substance of out-of-court testimonial state-

ments, directly or in a way from which “the nature of the

statement . . . [can be] readily inferred,” see Favre, 464 F.2d

at 362, as incapable of violating the Confrontation Clause.

Instead, if the substance of an out-of-court testimonial state-

ment is likely to be inferred by the jury, the statement is sub-

ject to the Confrontation Clause.

[9] (iii) Applying this principle, Detective Ringer’s and

Detective Webb’s testimony concerning Vasquez’s statements

constituted the introduction of testimonial statements against

Ocampo for Confrontation Clause purposes.

Detective Ringer testified about how the police identified

the suspects in the shooting, which was in part by ruling out

others, who had previously been identified by witnesses, as

not having been involved. As to that process of identifying the

suspects, Detective Ringer stated that “eventually Jose Her-

nandez was arrested, he gave a statement. Later we contacted

Baldemar Vela, and he gave a statement that verified what

Jose Hernandez said. And still later, Mesial Vasquez was

interviewed and he also verified the other two.” He repeated

later that a “statement by Mesial Vasquez” was one reason he

“knew” that some of the people identified as having been

involved were not involved. The only fair reading of this testi-

mony is that Vasquez stated that certain people were not sus-

pects, but did not so state concerning Ocampo. Vasquez’s out-

of-court statement exonerating others who had been identified

from photographs as involved in the crime, but not Ocampo,

was inculpatory as to Ocampo, as it indicated that Vasquez,

who was present, did not exonerate Ocampo. Further, as there

were only four people in the car, and Ocampo’s defense was

that he was not one of them, eliminating some suspects from

among those identified by witnesses was itself of importance,

as it made it less likely that someone other than Ocampo was

OCAMPO v. VAIL 8009

one of the four people in the car. As the prosecutor later said

in closing, central to the case was “whether the defendant was

there or whether it was someone else there.”

Later, Detective Ringer testified that he had corroborated

Hernandez’s participation in the shooting in part through

statements made by Vasquez, and went on to say that he had

also corroborated Ocampo’s presence at the scene, although

he did not give any details about how he had corroborated

Ocampo’s presence. Immediately after Ringer testified, Jose

Hernandez testified that Ocampo was the shooter.16 Corrobo-

rating Hernandez’s participation thus helped to inculpate

Ocampo, as it was a link in the chain of evidence that gave

credence to Hernandez’s identification of Ocampo as the

shooter. If the jury had had only Hernandez’s word that he

himself was involved in the crime, then it could have had a

harder time believing his overall story about how the crime

occurred.

In sum, Ringer’s testimony did not provide any specific

details about Vasquez’s out-of-court statements. But it did

convey some critical substance about those statements: That

certain others were not among those present at the scene, that

Ocampo was not among those identified as not present, and

that Hernandez was a participant in the shooting. All together,

Ringer’s testimony indicated that Vasquez had confirmed

Ocampo’s presence at the scene of the crime. The State recog-

nized as much in its brief: “Detective Ringer’s testimony did

not relate any of the substance of Vasquez’s statements other

than Ocampo’s presence there.” (Emphasis added). And that

presence was the key issue in the case, as Ocampo’s defense

was that he was not there.

More specific than Ringer’s testimony about Vasquez’s

statements to the police was Detective Webb’s testimony

16

Hernandez also testified that his testimony at trial was consistent with

his initial post-arrest statements to police.

8010 OCAMPO v. VAIL

about those statements. While Ringer had not personally spo-

ken with Vasquez, Detective Webb had. He testified that

Vasquez talked to him about the murder and was “reluctantly

helpful.” Webb then went on to testify that he came up with

a list of clothing items to search for at Ocampo’s residence

based in part on information solicited from Vasquez “as to

what everybody might have been wearing that night.” Finally,

and most importantly, Webb testified that he “didn’t go back

later and show photo montages with Santana Ocampo to wit-

nesses” because “a coconspirator . . . had confessed his

involvement and two additional witnesses besides that person

[had] implicated the defendant.” (Emphasis added). It was

clear from the context of the prosecutor’s previous question,

to which an objection had been sustained, and from the other

evidence at the trial that the “two additional witnesses” had to

be Vela and Vasquez.

The Washington Court of Appeals’ determination that

Detective Webb “did not testify to the substance of any state-

ments Vasquez made,” was thus either legally or factually

unreasonable. To the extent that the Court of Appeals meant

that the testimony was not to the “substance” of Vasquez’s

statements because it was in summary form and not in detail,

the conclusion was legally unreasonable given clearly estab-

lished Supreme Court law, for the reasons already surveyed.

To the extent the Court of Appeals ignored that the “two addi-

tional witnesses,” in context, necessarily included Vasquez, or

that testimony that Vasquez’s statement “implicated” Ocampo

contains critically important substance, its conclusion was

“based on an unreasonable determination of the facts in light

of the evidence presented.” 28 U.S.C. § 2254(d)(2); see also

Taylor, 366 F.3d at 1001 (“the state-court fact-finding process

is undermined where the state court has before it, yet appar-

ently ignores, evidence that supports petitioner’s claim”).

Were there any doubt as to what a jury would have under-

stood about Vasquez’s out-of-court statements from the two

detectives’ testimony — which we do not think there is — it

OCAMPO v. VAIL 8011

is dispelled by the prosecutor’s remarks at closing. Those

remarks highlighted the testimony about Vasquez’s state-

ments as critically important, stressing that “the core of [Her-

nandez’s] statements” — which were that Ocampo was

present and was the shooter — “were corroborated by Mesial

Vasquez . . . .” As in Hutchins, “the prosecutor’s reliance on

the hearsay testimony in closing argument was such that a

reasonable juror could have concluded only that [Vasquez]

identified [Ocampo] as the perpetrator.” 715 F.2d at 516.

[10] In sum, the critical substance of Vasquez’s testimonial

statements were admitted against Ocampo at trial, albeit not

in verbatim form, through Detective Ringer’s and Detective

Webb’s testimony. The prosecutor’s closing argument then

framed for the jury precisely what they were meant to take

from the detective’s testimony about Vasquez: that he had

confirmed both Ocampo’s presence that night and that

Ocampo was the shooter. The state appellate court’s conclu-

sion to the contrary, premised on its characterization of the

detectives’ testimony as only “outline” or lacking “sub-

stance,” was an unreasonable application of clearly estab-

lished Supreme Court precedent.

3.

Under Crawford, testimonial statements may be admitted if

the declarant is unavailable to testify and the defendant had a

prior opportunity to cross-examine him. 541 U.S. at 53-54.

This exception has no application here, whether or not

Vasquez was actually unavailable, as Ocampo never had an

opportunity to cross-examine Vasquez.

Crawford held that “[w]here testimonial evidence is at

issue . . . the Sixth Amendment demands what the common

law required: unavailability and a prior opportunity for cross-

examination.” Id. at 68 (emphasis added). This conclusion

rested on the premise that the Confrontation Clause “com-

mands, not that evidence be reliable, but that reliability be

8012 OCAMPO v. VAIL

assessed in a particular manner: by testing in the crucible of

cross-examination.” Id. at 61. As a result, “the only indicium

of reliability sufficient to satisfy constitutional demands is the

one the Constitution actually prescribes: confrontation.” Id. at

69.

[11] Although the Washington Court of Appeals suggested

otherwise, this confrontation requirement was not satisfied by

the fact that “Ocampo was able to cross-examine the detec-

tive[s] on whether any statements were made.” Crawford was

emphatic that questioning an in-court witness who relates the

statements of an absent witness is no substitute for the direct

confrontation guaranteed by the Sixth Amendment, noting,

for example, that Sir Walter Raleigh was denied his right to

confront his accuser despite being “perfectly free to confront

those who read [the accuser’s] confession in court.” Id. at 51;

see also Davis, 547 U.S. at 826 (having a police officer stand

in for an absent witness is not “conceivable”). Without doubt,

the proposition that the opportunity to cross-examine an in-

court witness about an out-of-court testimonial statement by

an absent witness is sufficient is contrary to clearly estab-

lished Supreme Court law.

[12] The state court admitted the critical substance of

Vasquez’s testimonial statements against Ocampo, and,

because Vasquez did not testify, Ocampo had no opportunity

to cross-examine Vasquez. Ocampo’s federal constitutional

right to confront the witnesses against him was therefore vio-

lated. The state appellate court’s decision holding otherwise

was an objectively unreasonable application of Crawford.

B.

[13] We now turn to whether the Confrontation Clause

violation at Ocampo’s trial requires the issuance of a writ of

habeas corpus. A Confrontation Clause violation is harmless,

and so does not justify habeas relief, unless it “ ‘had substan-

tial and injurious effect or influence in determining the jury’s

OCAMPO v. VAIL 8013

verdict.’ ”17 Brecht v. Abrahamson, 507 U.S. 619, 623 (1993)

(quoting Kotteakos v. United States, 328 U.S. 750, 776

(1946)). “[W]hen a habeas court is in grave doubt as to the

harmlessness of an error that affects substantial rights, it

should grant relief.” O’Neal v. McAninch, 513 U.S. 432, 445

(1995).

In general, the inquiry into whether the constitutionally

erroneous introduction of a piece of evidence had a substan-

tial and injurious effect is guided by several factors: “the

importance of the testimony, whether the testimony was

cumulative, the presence or absence of evidence corroborating

or contradicting the testimony, the extent of cross-

examination permitted, and the overall strength of the prose-

cution’s case.” Whelchel v. Washington, 232 F.3d 1197, 1206

(9th Cir. 2000) (citing Delaware v. Van Arsdall, 475 U.S.

673, 684 (1986)); accord Slovik v. Yates, 556 F.3d 747, 755

(9th Cir. 2009). As to the weight given to corroborating testi-

mony in Confrontation Clause cases, we have explained that:

While corroborative evidence may, as a general rule,

make the wrongful introduction of other evidence

harmless, this concept has no application where: (1)

there was a reason for the jury to doubt the only eye-

witness testimony; (2) the third party testimony was

not exceptionally strong; and (3) the physical evi-

dence connecting the accused to the crime was lim-

ited and explained by [the defendant’s theory of the

case].

17

The Washington Court of Appeals did not make a harmlessness deter-

mination under Chapman v. California, 386 U.S. 18 (1967). Even if it had,

our analysis would still be governed by the Brecht standard. See Pulido

v. Chrones, 629 F.3d 1007, 1012 (9th Cir. 2010) (holding that after Fry

v. Pliler, 551 U.S. 112 (2007), “we need not conduct an analysis under

AEDPA of whether the state court’s harmlessness determination . . . was

contrary to or an unreasonable application of clearly established federal

law,” but should instead apply the Brecht standard “without regard for the

state court’s harmlessness determination”).

8014 OCAMPO v. VAIL

Whelchel, 232 F.3d at 1208.

Applying these factors, we conclude that the admission of

Detective Ringer’s and Detective Webb’s testimony regarding

Vasquez’s statements, in combination with the prosecutor’s

closing remarks, had “a substantial and injurious effect or

influence in determining the jury’s verdict.” See Brecht, 507

U.S. at 623.

First, the importance of Vasquez’s statements was under-

scored by the prosecutor’s several references to Vasquez’s

out-of-court statements in closing argument.18 Moreover, as

discussed above, the prosecutor framed the detectives’ testi-

mony about Vasquez’s statements in such a way that the jury

was encouraged to conclude, as it probably would have any-

way, that Vasquez had identified Ocampo as the shooter. See

Hutchins, 715 F.2d at 516.

For example, the prosecutor accurately identified a central

issue in the case as being “whether the defendant was there

or whether it was someone else there.” She then minimized

the importance of Vela’s equivocations on the stand about

whether he could identify Ocampo as one of the people in the

car by reminding the jury that Hernandez’s testimony was

also “all confirmed by Mesial Vasquez.” Similarly, the prose-

cutor urged the jury to ignore the fact that Hernandez had

“gone back and forth to some extent about the facts,” because

“the core of his statements, were corroborated by Mesial

Vasquez.” In her rebuttal the prosecutor told the jury they

should be “convinced beyond a reasonable doubt” that Jose

Hernandez was a participant in the events as he reported,

18

Our purpose in recounting the prosecutor’s use of Vasquez’s state-

ments in closing argument is not to treat that argument as itself constitu-

tional error. Instead, the argument serves both to confirm the importance

of the testimony as to Vasquez’s statements, given the evidence as a

whole, as well as to confirm how the jury most likely understood those

statements.

OCAMPO v. VAIL 8015

“[b]ecause . . . this . . . fourth guy in the car [Vasquez] backs

him up.”

Second, without Vasquez’s statements corroborating Her-

nandez’s version of events, the evidence implicating Ocampo

as the shooter could well have been disbelieved. The other

two people present in the car, Hernandez and Vela, gave testi-

mony that was internally contradictory, inconsistent with each

other’s, and indeterminate.

To begin, there were structural reasons “for the jury to

doubt” the testimony of Hernandez, the only eyewitness to the

shooting. See Whelchel, 232 F.3d at 1208. Hernandez was an

accomplice. The Supreme Court has long recognized that

accomplices are questionable witnesses. See Crawford v.

United States, 212 U.S. 183, 204 (1909) (admonishing that

“the evidence of such a witness ought to be received with sus-

picion, and with the very greatest care and caution, and ought

not to be passed upon by the jury under the same rules gov-

erning other and apparently credible witnesses”). The jury

instructions in this case included a standard accomplice

instruction, which the prosecution discussed in closing argu-

ment, warning the jury that Hernandez’s statements should be

viewed with “great caution.” Moreover, Hernandez’s plea

agreement was predicated on testifying against Ocampo, so he

would have been risking additional punishment had he not

testified that Ocampo was responsible for the murder. Cf.

Whelchel, 232 F.3d at 1207-08. After acknowledging these

weaknesses inherent in Hernandez’s testimony, the prosecutor

once more stressed that “there is corroborating evidence that

Jose Hernandez was being truthful.”

Another reason “for the jury to doubt” Hernandez’s testi-

mony was that it was inconsistent in several respects with his

pre-trial version of events. On cross-examination, the defense

impeached Hernandez with several inconsistencies between

his testimony and his taped post-arrest statement to the police,

including inconsistencies about how he got to the Quinceañ-

8016 OCAMPO v. VAIL

era; whether Vela bought beer for him before the shooting;

whether he saw the gun after the shooting; how long he stayed

at the Quinceañera after the shooting; who he left with; and

where he went. Hernandez had no real explanation for these

inconsistencies, and instead insisted, implausibly, that the

transcript of his taped statement was incorrect.

Yet another reason the jury could well have disbelieved

Hernandez’s basic story inculpating Ocampo was that other

witnesses contradicted Hernandez’s testimony as to central

facts. For example, although Hernandez testified that only he

and Ocampo fled from Morales-Castro’s car to Vela’s van

after the shooting, the other witnesses at the scene uniformly

testified that they saw a group of three individuals fleeing.

Hernandez maintained that Morales-Castro acted drunk and

smelled of alcohol when entering his car, but there were no

drugs or alcohol in Morales-Castro’s system when he was

admitted to the hospital. And Hernandez’s story was that after

the shooting, he was in the back seat of the van with Vasquez,

while Ocampo sat up front with Vela. Vela, in contrast, testi-

fied that Hernandez was in the front seat, and that someone

in the back of the van confessed to being the shooter. If Her-

nandez was correct about where Ocampo sat then, according

to Vela, Ocampo was not the shooter.

There was yet one more, exceedingly strong reason for dis-

believing Hernandez’s account of the crime: Hernandez twice

confessed to juvenile detention officers that he, not Ocampo,

was the shooter that night. And Hernandez’s ex-girlfriend also

testified that Hernandez had told her that he had shot Morales-

Castro.19 Absent a strong reason to disbelieve Ocampo’s alibi,

a reasonable jury could have chosen to believe Hernandez’s

confession and to conclude that he had made up the story that

Ocampo was both present and the shooter so as to obtain a

favorable plea agreement.

19

For various reasons, including her age and drug use, Hernandez’s ex-

girlfriend may not have been the most credible witness.

OCAMPO v. VAIL 8017

Nor was the third-party testimony the prosecution offered

“exceptionally strong.” Cf. Whelchel, 232 F.3d at 1208. The

only prosecution witness other than Hernandez who ever

claimed to see Ocampo at the scene was Vela. But Vela testi-

fied on cross-examination that he did not actually know who

the passengers in his van were, and only identified Ocampo

in his interview with police as a passenger after he was told

that Ocampo had already confessed to being in the van. Also,

Detective Ringer admitted that the use of a single, color

Polaroid of Ocampo in seeking Vela’s identification was a

potentially suggestive method for obtaining a reliable identifi-

cation.

Furthermore, the conflict between the testimony of Vela

and Hernandez about seating positions is crucial: While Vela

represented that Hernandez was in the front passenger seat as

they left the scene, Hernandez’s story was that he, Hernandez,

was sitting in the back. Thus, either Hernandez’s statement is

true and there is a 50% chance Hernandez was the source of

the inculpatory statement, testified to by Vela — “I was trip-

ping, so I had to shoot him,” — or Vela’s statement is true —

that is, Herandez was sitting in the front — and there is yet

another factual inaccuracy undermining Hernandez’s testi-

mony.

Finally, the physical evidence “was limited and explained

by” Ocampo’s theory of the case. Cf. Whelchel, 232 F.3d at

1208. In closing argument, the prosecution offered clothing

found in Ocampo’s room and the ballistics of Morales-

Castro’s gunshot wound as “physical evidence,” arguing that

both were consistent with Hernandez’s account. But neither

piece of evidence conforms, or even corroborates, that

Ocampo was the shooter. Even if the clothes found in Ocam-

po’s room were the very ones that Hernandez saw him wear-

ing that night, that only proves that Hernandez saw him at

some point that evening. And the consistency between

Morales-Castro’s wound and Hernandez’s description of the

incident only strengthens Hernandez’s claim that he witnessed

8018 OCAMPO v. VAIL

the shooting. It says nothing about whether Ocampo was the

one he saw pull the trigger, or whether, instead, it was Her-

nandez himself (as he had told three people at three different

times), or a third person (for example, Vasquez or Solis).

[14] In sum, the overall case against Ocampo was as far as

can be from “overwhelming.” Cf. Moses v. Payne, 555 F.3d

742, 755 (9th Cir. 2009) (constitutional error does not warrant

reversal when there is “overwhelming evidence” of the defen-

dant’s guilt). The “physical” evidence the State offered only

had significance in showing that several ancillary aspects of

Hernandez’s testimony (from where the shot was fired and

what clothes Ocampo owned) were not demonstrably false.

The prosecutor acknowledged that the issue in the trial was

whether it was Ocampo or someone else who was with Her-

nandez when Morales-Castro was shot. And the only evidence

of witnesses who testified at trial linking Ocampo to the scene

came from Hernandez and Vela. The jury had several,

weighty reasons to disbelieve Hernandez, and Vela was far

from sure of his identification of Ocampo and did not directly

link Ocampo to the shooting.

[15] Given these considerable weaknesses in the prosecu-

tion’s case, the testimony regarding Vasquez’s statements,

emphasized by the prosecutor’s references to Vasquez at clos-

ing, cut to the heart of Ocampo’s defense, which was that he

had never left the Quinceañera. Vasquez’s out-of-court testi-

monial statements, as testified to by Detectives Ringer and

Webb, indicated that Ocampo was present at the scene of the

crime, and, indeed was “implicated” in the shooting. The

prosecution — like the trial judge — was obviously aware

that Crawford restricted its ability to rely on Vasquez’s out-

of-court statements, yet, as the repeated references to that

statement in the prosecution’s closing comments to the jury

confirm, without the core of those statements — that Ocampo

was present at the scene of the crime and involved in it —

there might well have been no conviction. The prosecution

therefore tried to walk a fine — indeed, non-existent — line

OCAMPO v. VAIL 8019

between conveying to the jury that Vasquez confirmed Her-

nandez’s story and avoiding a Confrontation Clause violation.

It succeeded as to the first but, for that very reason, failed

under clearly established Supreme Court law as to the second.

We, of course, cannot know whether, had Vasquez testi-

fied, he would have confirmed Hernandez’s story regarding

Ocampo’s role in the crime or whether he would have been

exposed as a possible liar through effective cross-

examination. For present purposes, however, what matters is

that he did not appear at trial; his statements thus should not

have been admitted at all, whether in “outline,” summary,

unavoidable inference, or verbatim; and, given the weakness

of the two other key trial witnesses and of the physical evi-

dence, we necessarily have “grave doubt” that without Detec-

tives Ringer and Webb’s accounts of what Vasquez said, the

result would have been a conviction of Ocampo. See O’Neal,

513 U.S. at 435. When a court is thus “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,

551 U.S. at 121 n.3 (citations and quotations omitted). We

conclude that the erroneous admission of the substance of

Vasquez’s statements to police, given particular force for the

jury by the prosecutor’s repeated references to those state-

ments in closing, was prejudicial under the Brecht standard.

III.

[16] The Washington Court of Appeals unreasonably

applied clearly established Supreme Court Confrontation

Clause jurisprudence to the facts of this case. The error was

prejudicial because the testimony concerning Vasquez’s out-

of-court statements to the two detectives bolstered the state’s

weak case against Ocampo, and flatly contradicted Ocampo’s

alibi defense. We reverse the district court’s denial of Ocam-

po’s petition for writ of habeas corpus and remand with

instructions to grant a writ of habeas corpus unless the State

8020 OCAMPO v. VAIL

elects to retry Ocampo within a reasonable amount of time to

be determined by the district court.

REVERSED and REMANDED.