STATE OF MINNESOTA
IN COURT OF APPEALS
State of Minnesota,
Filed July 26, 2005
Hennepin County District Court
File No. 95074990
Stephen Danforth, #147636,
970 Pickett Street North, Bayport,
(pro se appellant)
Mike Hatch, Attorney General, 1800 Bremer Tower,
445 Minnesota Street, St. Paul, MN 55101-2134; and
Amy Klobuchar, Hennepin County Attorney, Michael
K. Walz, Assistant Hennepin County Attorney, C-2000 Government Center,
Minneapolis, MN 55487 (for respondent)
and decided by Randall,
Presiding Judge, Kalitowski,
Judge, and Forsberg,
S Y L L A B U S
Because the rule set forth in Crawford
v. Washington, 541 U.S. 36, 124 S. Ct.
1354 (2004), is not a watershed rule of criminal procedure that implicates the
fairness and accuracy of a criminal proceeding, the case does not apply
O P I N I O N
Appellant moved for postconviction
relief under Crawford v. Washington, 541 U.S.
36, 124 S. Ct. 1354 (2004). The district court denied his motion, and he
appeals from that denial.
the trial of appellant Stephen
Danforth in 1996, the jury was
shown a videotaped interview of a child victim who had been ruled unavailable
to testify and whom appellant had never had the opportunity to cross-examine. The jury found appellant guilty of first-degree
criminal sexual conduct. His conviction
became final on July 28, 1999, when the supreme court
denied review of this court’s decision affirming appellant’s sentence on
remand. State v. Danforth, No. C5-98-2054 (Minn. App. May 4, 1999), review denied (Minn.
July 28, 1999).
2004, the Supreme Court released Crawford
v. Washington, 541 U.S.
36, 124 S. Ct. 1354, 1374 (2004) (holding that
testimonial hearsay is inadmissible unless
declarant is unavailable and defendant had prior opportunity to cross-examine
declarant). Appellant moved for
postconviction relief on the ground that Crawford
invalidates his conviction. The district
court denied his motion, and he appeals.
Crawford v. Washington, 541 U.S.
36, 124 S. Ct. 1354 (2004), apply
court reviews the issue of retroactive application de novo. State
v. Petschl, 692 N.W. 2d 463, 470
(Minn. App. 2004) (citing State v.
Costello, 646 N.W. 2d 204, 207 (Minn. 2002)),
review denied (Minn. Jan. 20, 2005). The retroactive application of Crawford is a case of first impression
with regard to cases on collateral review is governed by Teague v. Lane, which sets forth two exceptions to the general
principle that defendants whose convictions are final at the time a new rule of
law is announced may not avail themselves of the new rule. 489 U.S.
288, 310-12, 109 S. Ct. 1060, 1075-76 (1989). The two exceptions are cases that place
particular kinds of conduct beyond the proscriptive power of lawmaking
authority and cases that set out “watershed” rules of criminal procedure. Id. at 311-12, 109 S. Ct.
at 1075-76. Five of the six federal
circuit courts that have considered the retroactive application of Crawford in light of Teague have held that Crawford does not apply retroactively: Murillo
v. Frank, 402 F.3d 786, 789-90 (7th Cir. 2005); Dorchy v. Jones, 398 F.3d 783, 788 (6th Cir. 2005); Mungo v. Duncan,
393 F.3d 327, 336 (2d Cir. 2004), cert.
denied, 125 S. Ct. 1936 (2005); Brown
v. Uphoff, 381 F.3d 1219, 1227 (10th Cir. 2004); Evans v. Luebbers, 371 F.3d 438, 444 (8th Cir. 2004), cert. denied, 125 S. Ct. 902 (2005). We find the analyses in these cases
“that Crawford establishes a new rule” but held that
the rule was not “a fundamental rule essential to a fair and accurate
trial.” 402 F.3d 790. Murillo
provided two reasons for that holding.
First, Crawfordgives defendants the right to insist on
live testimony even when available hearsay is trustworthy and “is not an
indispensable innocence-protecting decision” that would apply
at 790-91. Second, a violation of the Confrontation
Clause, unlike a violation of “a truly vital rule of criminal procedure, such
as entitlement to counsel,” is subject to a harmless-error analysis; therefore,
cannot have established the sort of indispensable doctrine that applies
retroactively even to closed cases.” Id.
Dorchy cited Teague for the proposition that “[u]nder most circumstances . . .
newly promulgated rules of criminal procedure do not apply retroactively to
cases on collateral review” and concluded simply that “Teague thus prohibits [the defendant] from availing himself of the new
rule articulated in Crawford.”
Dorchy, 398 F.3d at 788.
Mungo noted that, because Crawford will bar both
“unreliable” and “highly reliable testimonial out-of-court statements,” it will
both “improve . . . [and] impair the accuracy of the factfinding process.” Mungo,
393 F.3d at 335-36. “Because Teague’s
test of a watershed rule requires improvement in the accuracy of the trial
process overall, we conclude that Crawford
is not a watershed rule.” Id.
Brownconcluded that because Crawford “merely sets out new
standards for the admission of certain kinds of hearsay” and because
“Confrontation Clause violations are subject to harmless error analysis and
thus may be excused . . . [i]t would . . . be difficult to conclude that the
rule in Crawfordalters rights fundamental to due
process.” Brown, 381 F.3d at 1226-27.
Evans found that Crawford would not apply retroactively because “the Crawford court did not suggest that this
doctrine would apply retroactively and the doctrine itself does not appear to
fall within either of the two narrow exceptions to Teague v. Lane’s non-retroactivity doctrine.” Evans, 371 F.3d at 444; see also Ferguson v. Roper, 400 F.3d 635, 639 n.3 (8th
Cir. 2005) (citing Evans
for proposition that Crawforddoctrine does not fall within Teague exceptions).
the ninth circuit, in Bockting v. Bayer,
399 F.3d 1010 (9th Cir. 2005), amended by 408 F.3d 1127 (9th Cir. 2005), has held that Crawford applies retroactively. We find this opinion unpersuasive, as did the
seventh circuit, which stated:
The three judges in Bockting wrote separately. [One judge] concluded that Crawford applies on collateral
review because it did not change the law. [Another judge] concluded that Crawford did change the law,
and changed it so dramatically that it established a “watershed rule” that
applies retroactively. [A third judge] agreed
. . . that Crawford changed the law
but . . . saw [it] as an ordinary development in criminal procedure that like
almost all other such changes applies prospectively.
F.3d at 789-90; see also Ferguson, 400 F.3d at
639 n.3 (citing Hiracheta v. Attorney Gen.
of Cal., 105 F. App. 937, 938 (9th
Cir. 2004), for proposition that Crawford is not retroactive).
the weight of authority from the six circuits that have addressed the issue
clearly supports the view that Crawford
does not have a retroactive application.
D E C I S I O N
light of holdings that Crawforddoes not apply retroactively from the second,
sixth, seventh, eighth, and tenth circuits, we conclude that the district court
correctly denied appellant’s motion for postconviction relief.