F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES CO URT O F APPEALS
                                                                       January 9, 2007
                                   TENTH CIRCUIT                     Elisabeth A. Shumaker
                                                                         Clerk of Court


 AN TON IO FARRELL,

          Petitioner-Appellant,                             No. 05-1141

          v.                                               (D. Colorado)
 R ICK SOA RES, Warden; and JOHN                (D.C. No. 03-cv-00286-REB-BNB)
 SU THERS, Attorney General, State of
 Colorado,

          Respondents-Appellees.



                             OR D ER AND JUDGM ENT *


Before H E N RY, A ND ER SO N, and M CCO NNELL, Circuit Judges.


      Petitioner Antonio Farrell was convicted after a jury trial in Colorado state

court of eleven offenses arising out of the November 1996 abduction and murder

of Barbara Castor and subsequent burglaries. 1 He received a mandatory life


      *
        This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 (eff. Dec.
1, 2006) and 10th Cir. R. 32.1 (eff. Jan. 1, 2007).


      1
         In particular, the jury convicted M r. Farrell of first-degree murder (a
violation of Col. Rev. Stat. § 18-3-102(1)(a)); felony first-degree murder (a
violation of Col. Rev. Stat. § 18-3-102)(1)(b)); robbery of an at-risk adult (a
violation of Col. Rev. Stat. § 18-6.5-103(4) and 18-4-301); aggravated robbery (a
violation of Col. Rev. Stat. § 18-4-302(1)(a)); second-degree kidnapping (a
                                                                         (continued...)
sentence and additional consecutive sentences totaling fifty-six years.

      At M r. Farrell’s trial, the prosecution offered a videotaped statement of M r.

Farrell’s co-defendant, Kevin Blankenship, who told police officers that he and

M r. Farrell had kidnapped M rs. Castor, driven her to an isolated area, tied her up

and left her there. Then, M r. Blankenship said, the two men had broken into M rs.

Castor’s house and a nearby garage and stolen money, weapons, and other

property.

      The Colorado Court of A ppeals reversed M r. Farrell’s convictions,

concluding that the admission of M r. Blankenship’s statement violated M r.

Farrell’s Sixth Amendment right to confront the witnesses against him and that

the error w as not harmless. See People v. Farrell, 

(Colo. Ct. A pp.

2000). How ever, the Colorado Supreme Court disagreed w ith that analysis,

holding that M r. Blankenship’s statement was “sufficiently self-inculpatory to be

deemed reliable,” and that, as a result, the admission of the statement did not



      1
        (...continued)
violation of Col. Rev. Stat.§ 18-3-302); two counts of second-degree burglary
(violations of Col. Rev. Stat.§18-4-203(2)(a)); theft ( a violation of Col. Rev.
Stat.§ 18-4-401(a)(a)); first-degree criminal trespass (a violation of § 18-4-
502); and two counts of conspiracy (violations of Col. Rev. Stat. § 18-2-201(1)).
The trial court sentenced M r. Farrell to a mandatory life sentence for the merged
first-degree murder convictions and concurrent sentences for the aggravated
robbery, kidnapping, second-degree burglary, theft, first-degree criminal trespass,
and conspiracy convictions. In addition, the trial court, finding extraordinarily
aggravating circumstances, sentenced M r. Farrell to consecutive sentences
totaling fifty-six years for the convictions of robbery of an at-risk adult and
second-degree burglary against a second victim.

                                         -2-
violate M r. Farrell’s Confrontation Clause rights. People v. Farrell, 

,

404 (Colo. 2001).

      M r. Farrell then filed a 28 U.S.C. § 2254 habeas corpus petition in the

federal district court. Although that court disagreed with some of the Colorado

Supreme Court’s analysis, it too concluded that M r. Blankenship’s out-of-court

statement was sufficiently reliable to support its admission without an opportunity

for cross-examination.

      W e exercise jurisdiction under 28 U.S.C. §§ 1291 and 2253. Upon review

of the record and the applicable law , we conclude that the admission of M r.

Blankenship’s statement violated M r. Farrell’s Confrontation Clause rights.

However, we further conclude that this error did not have a “substantial and

injurious effect or influence in determining the jury’s verdict.” Brecht v.

Abrahamson, 

, 623 (1993) (quoting Kotteakos v. United States, 

, 776 (1946)). W e therefore affirm the district court’s denial of M r.

Farrell’s § 2254 petition.



                                I. BACKGROUND

      W e first discuss the pertinent facts underlying M r. Farrell’s convictions and

then summarize relevant court proceedings.

A.    The crimes and M r. Blankenship’s statement

      In N ovember 1996, neighbors of 76-year-old Barbara Castor saw unknow n

                                         -3-
individuals in her Brighton, Colorado home and contacted the police, who found

it ransacked and looted. W hile police were investigating the residence, M ichael

M aldonado arrived at M rs. Castor’s house. Officers arrested him on an

outstanding warrant. M r. M aldonado told them that he and two other teenagers,

M r. Farrell and M r. Blankenship, had looted the residence. M r. M aldonado also

stated to the officers that the three of them had stolen guns from a garage at

another house. M r. M aldonado reported that M r. Farrell and M r. Blankenship

said the homeowner would not return because they had “taken care of” her. State

Ct. Rec. vol.12, at 422.

      Based on information obtained from M r. M aldonado and others, officers

arrested M r. Blankenship and M r. Farrell at a friend’s house at approximately 10

p.m. on November 18, 1996. Officers found items belonging to M rs. Castor in

the pockets of both young men and in the room where they were arrested.

Officers transported both suspects to the Adams County substation.

      At 11:50 p.m., Detectives John W illiams and Harold Lawson of the Adams

County Sheriff’s Department began to question M r. Blankenship. At the

beginning of the interview, the detectives read M r. Blankenship his M iranda

warnings, and he agreed to talk.

      M r. Blankenship first asserted that he and M r. Farrell had stolen M rs.

Castor’s car at a K-M art store in Brighton, found her driver’s license in the car,

and looted her house before she returned. W hen the detectives asked why the

                                          -4-
young men had returned to the house over several days without concern about

M rs. Castor’s return, M r. Blankenship responded, “I don’t know.” State’s Ex. 78

(Blankenship Tr.) at 10. Detective W illiams then said, “O kay, Kevin . . . I’m

gonna get serious now.” 

explained that M r. Farrell had been “shooting his mouth off

to his girlfriend” and to M r. M aldonado, and that police had already spoken with

them. 

Detective W illiams told M r. Blankenship that “w e’ve been told

what Tony’s been saying, that the lady’s been in the trunk, and that the lady’s

somewhere out in a field.” 

M r. Blankenship responded, “I know, that’s

. . . what I wanted to talk to you about.” 

stressed to M r.

Blankenship that they needed to find M rs. Castor because she might still be alive.

They urged him to release the “w eight on [his] shoulders” by helping to find M rs.

Castor to “make it right with her family.” 

      M r. Blankenship later admitted that he did not know where M rs. Castor was

because he did not know where he and M r. Farrell had left her. He stated that the

two young men had asked M rs. Castor for a ride, and that she had driven them to

a gas station and told them to get out. M r. Farrell got out, but M r. Blankenship

brandished a BB gun and told her to keep driving. Shortly thereafter, M r.

Blankenship directed her to stop. He forced her into the trunk and then returned

to pick up M r. Farrell. The two men drove for “a long way,” 

until they

reached a deserted area. There, M r. Farrell and M r. Blankenship tied M rs. Castor

                                          -5-
to a cement structure with string and a blanket from her car. They proceeded to

pile pieces of wood, rocks, and a spare tire on top of her. As they were driving

away, M r. B lankenship claimed that M r. Farrell said “[G]od will get us for this,”

so they said a prayer. 

      M r. Farrell and M r. Blankenship then examined M rs. Castor’s driver’s

license and stopped at a gas station to get directions to her house. They

eventually found it, used her keys to gain entry, and ransacked it. M r.

Blankenship described how he and M r. Farrell returned to the house several times

over the next three days–to sleep, shower, and search for valuables.

      M r. Blankenship also stated that he and M r. Farrell had stolen guns from a

garage at a different house. He said they lived in Rockford, Illinois, and had

stolen two cars and hitchhiked to reach Colorado. The two young men came to

Colorado to see M r. Farrell’s fiancee.

      The interrogation ended at 1:09 a.m. Based on the information from M r.

Blankenship, the police disseminated new s bulletins and later located M rs.

Castor’s body near old dam ruins. The medical examiner reported that she had

died of hypothermia due to exposure to the cold weather.



B.    Trial proceedings

      The State of Colorado charged M r. Farrell and M r. Blankenship as adults

with first-degree murder, felony murder, kidnaping, robbery, burglary, criminal

                                          -6-
trespass, conspiracy, and related counts based on M rs. Castor’s death, the looting

of her house, and the guns stolen from the garage of another residence. The State

tried M r. B lankenship first, and a jury convicted him on all counts.

      At M r. Farrell’s trial, M r. Blankenship asserted his Fifth Amendment

privilege against self-incrimination. M r. Farrell then moved to exclude M r.

Blankenship’s custodial statement, arguing that its untested introduction would

violate the Confrontation Clause. The trial court found the statement against M r.

Blankenship’s penal interest and therefore admissible under Colo. R. Evid.

804(b)(3). The court further concluded the statement was sufficiently reliable for

Confrontation Clause purposes because other evidence corroborated it. The court

redacted certain portions of M r. Blankenship’s statement, such as his account of

the young men’s conversation with M rs. Castor as they were restraining her, as

being too prejudicial.

      At M r. Farrell’s trial, the jury saw the videotape of M r. Blankenship’s

interrogation and also received a redacted transcript of it. Several other witnesses

testified about the activities of M r. Farrell and M r. Blankenship before and after

M rs. Castor’s disappearance.

      In particular, M r. M aldonado testified that M r. Farrell came to his house

periodically between November 10 and November 14. M r. M aldonado described

how the three of them broke into a garage window and stole two rifle cases during

the night of November 14. After the three of them stole the guns, they went to

                                          -7-
M rs. Castor’s house. M r. M aldonado testified that, while the three men were

there, M r. Blankenship told him they had forced M rs. Castor to give them a ride,

and later pulled a gun on her and put her in the trunk of her car. M r. M aldonado

said that when he told the young men they were going to be in trouble, they “just

laughed like, ‘W e took care of that. It won’t happen.’” State Ct. Rec, vol. 12, at

410. W hile at the house, both M r. Blankenship and M r. Farrell told M r.

M aldonado they had left the lady in a field, covered with rocks and branches. M r.

M aldonado indicated that both M r. Farrell and M r. Blankenship provided the

description at the same time, and he thought that the two young men had been

bragging about their actions. M r. M aldonado further testified that, during the

time at M rs. Castor’s house, M r. Farrell appeared normal and was capable of

having a normal conversation.

      Shaun Vigil testified that he had shopped with M r. Farrell and M r.

Blankenship on November 15, 1996. M r. Farrell made several purchases w ith

cash. M r. Vigil testified that M r. Farrell had acted normally with no bizarre

behavior. M r. Vigil noted at trial that M r. Farrell and M r. Blankenship had taken

a souvenir photograph of themselves that looked like a “wanted poster.” 

at 604-05.

      The government also introduced considerable physical evidence linking M r.

Farrell and M r. Blankenship to the crimes. In the room where the two young men

were arrested, officers found M rs. Castor’s car registrations, insurance card, and

                                          -8-
phone calling card. Officers also discovered plastic bags of new clothing in the

attic at the residence. W hen arrested, M r. Farrell was carrying a wallet

containing approximately $600 and two rings.

      Inside M rs. Castor’s car, officers found a jacket containing M r.

Blankenship’s identification, M rs. Castor’s wedding ring set, and a necklace.

Detectives found M r. Farrell’s fingerprints on a door and w indow of M rs.

Castor’s car, and on a shopping bag in the trunk of her car. At M rs. Castor’s

residence, officers recovered M r. Farrell’s fingerprints from the filing cabinet and

upstairs bathroom window. Three pubic hairs from the shower were consistent

with M r. Farrell’s hair and inconsistent with those of M r. Blankenship and M r.

M aldonado.

      In response to the State’s case, M r. Farrell asserted that he was not guilty

by reason of insanity. He offered testimony from two psychologists who testified

that he suffered from a major depressive disorder with possible psychotic

features. Because the psychiatric disorder was episodic, both defense

psychologists said, they could not conclusively determine whether M r. Farrell was

legally sane when he left M rs. Castor in the field. In rebuttal, the State called a

forensic psychiatrist and a psychologist. The forensic psychiatrist testified that

M r. Farrell was mentally sane during the offenses. The psychologist agreed,

stating that “[M r. Farrell] could understand the consequences of his acts and form

intent to do things he wanted to do.” 

at 821. Additionally, the

                                          -9-
psychologist questioned some of M r. Farrell’s responses to the personality tests

he had been administered:

             I concluded that he was malingering, based on a number of
      things. One, [the results of a personality test were] . . . exaggerated, in
      contrast to his clinical presentation; that is, how he looked to me when
      I interview ed him and how he looked on the unit.

            . . . . They were incongruent. He didn’t look crazy or as
      disorganized and he presented on the [personality test] when I spoke to
      him face to face and also when he was observed on the unit.

            Secondly, those data were also stri[]kingly in contrast to the data
      he gave me on the Rorschach. So since I’ve done many of these before,
      the conclusions were easy to reach; and that was that [M r. Farrell] was
      exaggerating his level of psychopathy or his craziness in order to gain
      some secondary benefit.
            ...

W hen the prosecutor asked, “W hat might that secondary benefit

be?,” the psychologist responded, “[T]o achieve some kind of reduction in

consequences from the legal system.” 

      The jury convicted M r. Farrell of all of the charged offenses.

C.    Direct appeal

      The Colorado Court of Appeals reversed M r. Farrell’s convictions, ruling

that the admission of M r. Blankenship’s statement without cross-examination

violated M r. Farrell’s rights under the Confrontation Clause. See 

. The appellate court examined the Supreme Court’s decision in Lilly v.

Virginia, 

, 138-39 (1999) and concluded that the custodial statement

was too unreliable to be introduced without cross-examination. The Colorado

                                         -10-
Court of Appeals further held that the Confrontation Clause error was not

harmless. 

.

      The Colorado Supreme Court reinstated M r. Farrell’s convictions. 

. It held that M r. Blankenship’s statement was “supported by

sufficient guarantees of trustworthiness” and that, as a result, its admission had

not violated M r. Farrell’s Confrontation Clause rights. 

that

conclusion, the Colorado Supreme Court significantly relied on the factors it had

identified in Stevens v. People, 

(Colo. 2001). The court noted that

“[i]n Stevens, we observed that the most important factor in evaluating the

reliability of the tendered statement is whether it was genuinely self-inculpatory.”

. The court characterized M r. Blankenship’s statement as

“genuinely self-inculpatory, not induced by threats, coercion, or promises, and not

intended to shift blame to [M r. Farrell].” 

      The Colorado Supreme Court also observed that the statement “meets

various other tests we have identified as being pertinent to [the reliability]

inquiry.” 

In the court’s view , the statement described the crimes “at a

level of detail that would be difficult to fabricate.” 

M r.

Blankenship (a) made the statement soon after the crime, (b) was not threatened

or coerced by the police officers who interrogated him, (c) receive no offers of

leniency, (d) did not evince any intent to retaliate against M r. Farrell by shifting

blame to him, (e) had “personal knowledge of the events in the statement,” and (f)

                                          -11-
“was not unduly agitated when he made the statement.” 

      For the same reasons they set forth in Stevens, Justices Bender and

M artinez dissented. In their view, M r. Blankenship’s statement was not

sufficiently reliable to insulate it from the requirements of the Confrontation

Clause. 

(Bender, J., dissenting).

D.    Federal habeas corpus proceedings

      On February 7, 2003, M r. Farrell filed a federal habeas petition under 28

U.S.C. § 2254. The district court appointed counsel, and M r. Farrell’s amended

petition raised only the Confrontation Clause claim.

      Although it disagreed with the Colorado Supreme Court’s analysis in

important respects, the district court denied M r. Farrell’s petition. The district

court first held that the Colorado Supreme Court had ruled contrary to clearly

established federal law when it relied on the apparent voluntariness of M r.

Blankenship’s statement in assessing its reliability. However, on subsequent de

novo review , the district court concluded that other indicators of reliability

sufficiently supported the admission of M r. Blankenship’s statement without

cross-examination. In its assessment, the district court did not characterize the

plurality decision in Lilly v. Virginia as clearly established federal law.

      M r. Farrell timely appealed and applied for a certificate of appealability

(COA ) pursuant to 28 U .S.C . § 2253(c)(1)(A). The district court granted a COA

on M r. Farrell’s Confrontation Clause claim.

                                          -12-
                                 II. DISCUSSION

A.    Standard of review

      The provisions of the Anti-Terrorism and Effective Death Penalty Act of

1996 (“AEDPA”) govern this appeal. See Brown v. Uphoff, 

, 1223

(10th Cir. 2004). Therefore, we can only grant § 2254 relief if the Colorado

Supreme Court’s adjudication of M r. Farrell’s claims “resulted in a decision that

was contrary to, or involved an unreasonable application of, clearly established

federal law, as determined by the Supreme Court of the United States.” 28 U.S.C.

§ 2254(d)(1). A state court’s adjudication is “contrary to” clearly established

federal law if the state court (1) “applies a rule that contradicts the governing law

set forth in [Supreme Court] cases” or (2) “confronts a set of facts that are

materially indistinguishable from a decision of [the Supreme] Court and

nevertheless arrives as a result different from” the Court’s result. Williams v.

Taylor, 

, 405-06 (2000). The “unreasonable application” clause is

met if the state court “correctly identifies the governing legal rule but applies it

unreasonably to the facts of a particular prisoner’s case.” 

      If we conclude the state court’s reasoning was contrary to clearly

established federal law, we do not apply deference under AEDPA to the Colorado

Supreme Court’s decision. 

; 

.

W e instead determine de novo whether the admission of M r. Blankenship’s

statement violated M r. Farrell’s rights to confront witnesses against him under the

                                         -13-
Sixth Amendment. 

.

B.    Clearly established federal law

      W e now consider whether the Colorado Supreme Court ruled contrary to, or

unreasonably applied, clearly established federal law that existed when M r.

Farrell’s state convictions became final. 

. The state

court reinstated M r. Farrell’s convictions on October 22, 2001, and issued a

modified en banc opinion on November 13, 2001. Because M r. Farrell’s

convictions became final before the Supreme Court issued its decision in

Crawford v. Washington, 

(2004), that decision does not apply to our

review of M r. Farrell’s claim. 

(concluding that

Crawford “is not retroactively applicable” to cases then on collateral review).

      In our recent decision in Stevens v. Ortiz, 

(10th Cir. 2006), 2

we described the relevant Confrontation Clause authority before Crawford. W e

examined in detail the Supreme Court’s decision in Lilly v. Virginia, 

(1999), the most recent discussion of the Confrontation Clause before M r.

Farrell’s convictions became final in November 2001. In Stevens, we treated the

Lilly plurality opinion as the holding of the Court. 

(citing M arks v. United States, 

, 193 (1977)).

      The Lilly plurality identified several factors on which courts should not rely



      2
         Because of the similarity in issues and counsel, we consolidated Stevens
and M r. Farrell’s appeal for oral arguments.

                                        -14-
in assessing the reliability of an accomplice’s hearsay statement: (1) the

voluntariness of an accomplice’s confession, 

; Lee v.

Illinois, 

, 544 (1986); (2) the presence of corroborating evidence,

; Idaho v Wright, 

, 822 (1990); (3) the

absence of an offer of leniency, 

-39; and (4) the presence of

statements strongly against penal interest, id.; 

n.6.

B.    Review of the Colorado Supreme Court’s decision under AED PA

      The Colorado Supreme Court held that M r. Blankenship’s custodial

statement to detectives did “not fall into a firmly rooted hearsay exception, [but]

it was nonetheless supported by sufficient guarantees of trustw orthiness to

support its admissibility under the Confrontation Clause.” 

. In his habeas petition, M r. Farrell maintains that the state court ruled

contrary to or unreasonably applied clearly established federal law when it relied

on the following four factors in assessing the reliability of M r. Blankenship’s

statement: (1) the statement’s genuinely self-inculpatory nature; (2) the

statement’s voluntariness; (3) the existence of evidence corroborating the

statement; and (4) the absence of a promise of leniency to M r. Blankenship.

      For the same reasons set forth in Stevens, we conclude that insofar as it

relied on the “genuinely self-inculpatory” nature of M r. Blankenship’s statement,

, and the absence of a promise of leniency as factors

indicating the statement’s reliability, the Colorado Supreme Court’s reasoning

                                         -15-
was contrary to clearly established federal law. See 

,

1240; see also 

-39 (holding that statements against penal

interest “are suspect insofar as they inculpate other persons” and that “the absence

of a promise of leniency to [a declarant] does not enhance his statement’s

reliability to the level necessary for their untested admission”); 

n.6 (interpreting Lilly to conclude that “the presence of some statements

against penal interest” is not a relevant indicator of reliability).

      W e now separately examine the two other factors invoked by the Colorado

Supreme Court and challenged by M r. Farrell— the voluntariness of M r.

Blankenship statement and the fact that the statement was corroborated by other

evidence.

      1.     Voluntariness of M r. Blankenship’s statement

      The Colorado Supreme Court recognized that M r. Blankenship provided his

statement in a custodial setting “after the police officers had issued Blankenship

his M iranda warnings and in response to some leading questions.” 

. The state court further found it “[i]mportant[], however, the police

officers did not threaten or coerce Blankenship in order to obtain his statement.”

Farrell contends that the court based its reliability determination in part

on the apparent voluntariness of M r. Blankenship’s statement.

      The Court in Lilly concluded that a declarant’s awareness of his M iranda

rights “has little, if any, bearing on the likelihood of truthfulness of his

                                          -16-


. Also, the fact that a custodial statement is

voluntary “does not bear on the question of whether the confession was also free

from any desire, motive, or impulse [the declarant] may have had either to

mitigate the appearance of his own culpability by spreading the blame or to

overstate [the defendant’s] involvement” in the murder. 

.

W e agree with M r. Farrell that the Colorado Supreme Court considered the

apparent voluntariness of M r. Blankenship’s statement as bearing on its

truthfulness, and reliance on such a factor is contrary to the reasoning of Lilly and

Lee. See 

(concluding that a state court’s reliance on the

voluntariness of a declarant’s statement was contrary to Lee).

      2.     Evidence corroborating M r. Blankenship’s statement

      The Colorado Supreme Court also considered it “pertinent” to its reliability

determination that M r. Blankenship’s statement “describes the various crimes and

sequence of events at a level of detail that would be difficult to fabricate.”

. The court further noted that “Blankenship provided

detailed descriptions of the events and conversations that occurred, the

surroundings at each stage of the criminal episode, and the actions attributable to

each party.” 

Court has expressly stated that corroborative evidence cannot

be used to assess the reliability an accomplice’s hearsay statement. See 

(“That other evidence at trial corroborated portions of [the

                                         -17-
declarant’s] statements is irrelevant.”); 

(rejecting the

argument that evidence corroborating a hearsay statement supports a finding of

trustworthiness). M r. Farrell contends that the state court’s mention of the

statement’s details was essentially an improper reliance on corroborating

evidence. W e agree with M r. Farrell that a fanciful declarant could infuse a

confession with a level of detail that we would more commonly associate with

someone who has observed the actual events. Nonetheless, when the Colorado

Supreme Court issued its decision in M r. Farrell’s case, the United States

Supreme Court had not clearly rejected the level of detail in a statement as a

factor indicating reliability. Therefore, the Colorado Supreme Court did not rule

contrary to Lilly or Wright by relying on the level of detail in M r. Blankenship’s

statement. See 

(concluding that a district court did not

rule contrary to pre-Lilly Court precedent when it noted the statement “provided a

level of detail about the crime and location of evidence that would be difficult to

fabricate”). 3




       3
          W e note however that, in Crawford (issued after the Colorado Supreme
Court’s opinion in this case), the U nited States Supreme Court appears
unconvinced that the level of detail in an out-of-court statement may establish its
reliability. See 

(noting that “[s]ome courts attach[] the
same significance to opposite facts,” such as holding a more detailed statement
more reliable (citing 

), “while the Fourth Circuit found a
statement more reliable because the portion implicating another w as ‘fleeting’”
(quoting United States v. Phtogrammetric Data Servs, Inc., 

, 245
(4th Cir. 2001)).

                                         -18-
      W e therefore conclude that the state court’s reasoning was contrary to

clearly established federal law by relying on three impermissible factors to assess

the reliability of M r. Blankenship’s statement: (1) the genuinely self-inculpatory

nature of the statement, (2) its voluntariness, and (3) the absence of a promise of

leniency.

C.    D e novo review

      Because the Colorado Supreme Court’s reasoning was contrary to Supreme

Court precedent, we now review de novo whether M r. Blankenship’s statement

contained sufficient indicia of reliability to be admitted w ithout cross-

examination at M r. Farrell’s trial. 

; 

. In our independent inquiry for trustworthiness, we examine M r.

Blankenship’s statements and the setting in which he was questioned. 

.

      Again, our analysis is guided by our decision in Stevens. There, we

observed that “[c]ourts have long recognized that an accomplice’s confession in

police custody ‘is presumptively unreliable as to the passages detailing the

defendant’s conduct or culpability because those passages may well be the

product of the codefendant’s desire to shift or spread blame, curry favor, avenge

himself, or divert attention to another.’” 

(quoting 

).

      Here, M r. Blankenship was an accomplice who was interrogated in police


                                         -19-
custody. As a result, his statement, like the one at issue in Stevens, must be

presumed unreliable.

      M oreover, like the declarant in Stevens, M r. Blankenship attempted to shift

much of the blame to the defendant. In particular, near the beginning of the

interrogation, M r. Blankenship stated that it was M r. Farrell who had done most

of the talking when the two teenagers first encountered M rs. Castor. M r.

Blankenship eventually admitted during the interrogation that he had pointed a

gun at M rs. Castor and forced her into the trunk of her car. However, he

maintained that it was M r. Farrell who had driven the car out of town to the

isolated location where the two teenagers tied her up and left her. M oreover,

according to M r. Blankenship, it was M r. Farrell’s idea to leave M rs. Castor

there. In addition, after initially indicating that M r. Farrell had ripped up a

blanket and that he (M r. Blankenship) had tied up M rs. Castor, see Blankenship

Tr. at 30 (stating that “Tony, he [M r. Farrell] was ripping it up and I tied her

up”), M r. Blankenship then stated “Tony mostly tied her up because I w ouldn’t

get her or something,” 

      Also, like the declarant in Stevens, M r Farrell first sought to exculpate

himself. See 

. At the beginning of the interrogation,

M r. Blankenship denied any responsibility for M rs. Castor’s abduction and

murder. He indicated that M rs. Castor had left her keys in her car and that he and

M r. Farrell and driven aw ay without her. It was only after police officers


                                          -20-
reported that M r. Farrell had stated that M rs Castor was “somewhere out in a

field,” Blankenship Tr. at 11, and that the only way “to get that weight off [his]

shoulders,” 

was to help the police to find her, that M r. Blankenship

changed his story.

      In our view, none of the other factors identified by the Colorado Supreme

Court or the federal district court are sufficient to establish that “the reliability of

M r. [Blankenship’s] statement is so apparent from the record that cross-

examination at M r. [Farrell’s] trial would have been of only marginal utility.”

(internal quotation marks omitted). The fact that M r.

Blankenship gave the statement soon after the crime, received no express offers

of leniency, had personal knowledge of the events in the statement, and was not

unduly agitated when he made the statement are all insufficient to rebut the

presumed unreliability of an out-of court statement that was given by an

accomplice during a custodial interrogation and that sought to shift blame to a

substantial extent to the defendant on trial. See 

(noting

that, in assessing the reliability of out-of-court statements, “[s]ome courts wind

up attaching the same significance to opposite facts” and citing the Colorado

Supreme Court’s decisions in this case and in Stevens as examples: “the Colorado

Supreme Court in one case found a statement more reliable because it was given

immediately after the events at issue, . . . while that same court, in another case,

found a statement more reliable because two years had elapsed”) (internal


                                           -21-
quotation marks omitted). As in Stevens, we therefore conclude that the

statement’s admission violated the petitioner’s Sixth Amendment rights to

confront the witnesses against him. 

Error

      The violation of M r. Farrell’s Confrontation Clause rights warrants habeas

relief under 28 U.S.C. § 2254 only if it had “a substantial and injurious effect or

influence in determining the jury’s verdict.” 

(quoting

). In undertaking that inquiry, we may consider “the

importance of the . . . testimony in the prosecution’s case; whether the testimony

was cumulative; the presence . . . of evidence corroborating or contradicting the

testimony of the witness on material points; the extent of the actual

cross-examination otherwise permitted; and the overall strength of the

prosecution’s case.” Jones v. Gibson, 

, 957 (10th Cir. 2000) (citing

Delaware v. Van Arsdall, 

, 684 (1986)). If we are “in grave doubt as

to the harmlessness of the error . . . the [habeas] petitioner must win.” O ’Neal v.

M cAninch, 

, 437 (1995). W e examine the out-of court statement in

light of the entire record to determine the error’s possible effect on the jury.

Crespin v. New M exico, 

, 649 (10th Cir. 1998).

      In applying the Brecht standard to the evidence in the record, we first note

that our inquiry differs from that undertaken by the Colorado Court of Appeals on

direct appeal. That court was required to determine whether the Confrontation


                                          -22-
Clause error was harmless beyond a reasonable doubt. Here, it is the Brecht

standard that controls. See Herrera v. Lemaster, 

, 1197 (10th Cir.

2002) (observing that “the Brecht standard is less stringent than [the harmless

error standard set forth] in Chapman [v. California, 

(1967)],” but that

“it is still ‘appropriately demanding’”) (quoting Brecht, 

(Stevens, J.,

concurring).

      Here, in arguing that M r. Blankenship’s statement had “a substantial and

injurious effect or influence in determining the jury’s verdict,” 

, M r. Farrell invokes the Colorado Court of A ppeals’s observation that M r.

Blankenship’s statement provided “the primary, if not the sole, evidence detailing

[M r. Farrell’s] specific acts and demonstrating his mental state during the

comm ission of the crimes.” Aplt’s Br. at 45-46 (quoting 

).

He also observes that the prosecutor quoted or paraphrased M r. Blankenship’s

statement in his opening statement and his closing argument.

      W e agree with the C olorado Court of A ppeals to some extent— M r.

Blankenship’s statement was the primary evidence describing M r. Farrell’s

specific acts during the commission of the crimes, particularly the abduction and

killing of M rs. Castor. Nevertheless, that fact does not establish that the

admission of the statement was prejudicial under the Brecht standard.

      The primary issue at trial was not whether it was M r. Farrell or M r.

Blankenship who committed the particular acts leading to the death of M rs.


                                         -23-
Castor and the various property crimes. There was little dispute that both men,

acting in concert, abducted M rs. Castor, tied her up, left her to die, and then

burglarized her home and the garage of another residence. M oreover, the jurors

received an instruction that M r. Farrell could be found guilty as a “complicitor”

if (a) the offense was committed by another person; (b) M r. Farrell knew that the

other person intended commit the crime; (c) M r. Farrell had “the intent to

promote or facilitate the commission of the crime;” and (d) M r. Farrell “aided,

abetted, advised, or encouraged the other person in the commission of the crime.”

State Ct. Rec. vol 1, at 240, Inst. 18.

      Rather than the respective roles played by M r. Farrell and M r. Blankenship,

the central issue at trial was M r. Farrell’s mental state at the time of the crimes.

M r. Farrell contended that he was not guilty by reason of insanity, and the

evidence and arguments of his counsel concerned that issue. Thus, M r. Farrell’s

two witnesses were both psychologists who discussed M r. Farrell’s history of

mental health disorders. His counsel’s closing argument did not address the

events surrounding the crimes at all. Instead he discussed M r. Farrell’s troubled

mental health history, contending that M r. Farrell had been subjected to abuse for

a long period of time and telling the jury that “the ultimate decision about what he

was thinking and how he was functioning lies in your hands and I ask you to

consider that history.” 

at 948.

      On that issue, M r. Blankenship’s statement was not particularly


                                          -24-
informative. W hile the expert witnesses disagreed about whether M r. Farrell had

a major psychiatric disorder that prevented him from knowing right from wrong

or from forming the intent to commit the crimes at issue, M r. Blankenship’s

statement did not directly address that question. Indeed, that fact is apparent

from the evidence on which the experts relied in reaching their conclusions. Both

the prosecution’s and the defense’s experts discussed M r. Farrell’s psychiatric

history, the psychological tests that had been administered to him, and their

clinical observations. They did not rely on the details provided by M r.

Blankenship.

       To be sure, M r. Farrell does point to one statement by M r. Blankenship that

arguably concerns M r. Farrrell’s mental condition at the time that he committed

the crimes. According to M r. Blankenship, as they were driving away from the

site where they left M rs. Castor, M r. Farrell said that “[G ]od w ill get us for this”

and the two of them began to pray. Blankenship Tr. at 36. In M r. Farrell’s view ,

the prosecution used this part of the statement to prove its contention that he

knew right from wrong, and it thus prejudiced the jury.

       Again, this argument is undermined by the record as a whole. A s the State

observes, there was considerable other evidence rebutting M r. Farrell’s insanity

defense. One of the defense psychologists told the jury that, in recounting the

crimes, M r. Farrell had indicated that he had prayed for M rs. Castor’s

forgiveness. That testimony thus provided the jury with the same information


                                           -25-
contained in M r. Blankenship’s account. In addition, the prosecution offered

testimony from several witnesses who encountered M r. Farrell shortly before and

shortly after the abduction of M rs. Castor. Like M r. Blankenship, these witnesses

indicated that M r. Farrell had not engaged in any unusual behavior that would

indicate that he did not know right from wrong or that he was incapable of

forming the intent to commit the charged offenses. Apart from M r. Blankenship’s

statement, the prosecution presented ample evidence supporting its theory that

M r. Farrell w as not insane.

      Accordingly, we conclude that the Confrontation Clause error caused by the

admission of M r. Blankenship’s statement did not have “a substantial and

injurious effect or influence in determining the jury’s verdict.” 

(quoting 

).

                                 II CONCLUSION

      For the reasons set forth in this order and judgment, we therefore AFFIRM

the district court’s order denying M r. Farrell’s 28 U.S.C. § 2254 petition for a

writ of habeas corpus.

                                 Entered for the Court,



                                 Robert H. Henry
                                 United States Circuit Judge




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