FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

MARCUS D. WINZER,  No. 06-55327

Petitioner-Appellant, D.C. No.

v.  CV 04-07301-DSFRZ JAMES E. HALL, Warden,

Respondent-Appellee. OPINION 

Appeal from the United States District Court

for the Central District of California

Dale S. Fischer, District Judge

Argued February 8, 2007

Submitted July 13, 2007

Pasadena, California

Filed July 23, 2007

Before: Alex Kozinski and Stephen S. Trott, Circuit Judges,

and Donald W. Molloy,* District Judge.

Opinion by Judge Molloy

*The Honorable Donald W. Molloy, Chief Judge, United States District

Court for the District of Montana, sitting by designation. 

8879
COUNSEL

Carol K. Lysaght, Santa Monica, California, for the

petitioner-appellant.

Bill Lockyer, Attorney General of the State of California;

Mary Jo Graves, Chief Assistant Attorney General; Pamela C.

Hamanaka, Senior Assistant Attorney General, Kenneth C.

Byrne, Supervising Deputy Attorney General; Yun K. Lee,

Deputy Attorney General, Los Angeles, California, for the

respondent-appellee.

OPINION

MOLLOY, District Judge: 

Appellant/Petitioner Marcus Winzer appeals from the district court’s denial of his petition for writ of habeas corpus

8882 WINZER v. HALL
pursuant to 28 U.S.C. § 2254. He was convicted by a Los

Angeles County jury on two counts of making a terrorist

threat by saying “I’ll smoke you and your daughter” while

appearing to indicate that he had a gun in the waistband of his

pants. The statement and gesture were proved at trial through

the testimony of a police officer, who interviewed the two

victims at their home more than five and a half hours after

Winzer left it. Based on the officer’s testimony about the victims’ demeanor, and despite the trial court’s exclusion of their

911 call as “one of the calmest” it had ever heard, the California courts concluded that the victims’ statements to the officer

were spontaneous and therefore exceptions to hearsay. The

mother did not appear at trial. The daughter did not recall

Winzer making the threat and did not see the gesture. Winzer

contends that his Sixth Amendment right to confrontation was

violated. 

Crawford v. Washington, 541 U.S. 36 (2004), does not

apply because it was decided after Winzer’s trial and appeal.

See Whorton v. Bockting, ___ U.S. ___, 127 S. Ct. 1173

(2007). Even so, federal law that was clearly established

before Crawford mandates reversal. 

I. FACTUAL BACKGROUND 

Around 10:45 a.m. on December 2, 2001, Winzer and his

“on-again, off-again” girlfriend, declarant Parrish Harvey,

were strenuously arguing in her home. At the same time, Parrish’s daughter, nineteen-year-old Mercedes Hernandez, was

arguing on the phone with her boyfriend. At Parrish’s insistence, Winzer left the house at about 11:00 a.m., ten or fifteen

minutes after the argument started. 

Later in the afternoon, having had several hours to think

about the argument, Parrish called 911. At about 4:40 p.m.,

Los Angeles police officer Michael Dickson arrived at her

house in response to her call. Based on Dickson’s interview

WINZER v. HALL 8883
with Parrish and Mercedes, Winzer was charged with two

counts of making a terrorist threat. See Cal. Penal Code § 422.

At trial, the State offered the tape of Parrish’s 911 call

under California’s “spontaneous statement” exception to hearsay. The trial court found that “it’s got to be one of the calmest 911 tapes I think I have heard” and “I can’t say from what

I hear on the tape . . . that she is under the distress of the

excitement of the event. And the bulk of it actually, the bulk

of the tape is not talking about the event.” Consequently, the

911 tape was excluded. But the prosecution found another

way to skin the cat. 

When the State offered Dickson’s testimonial report of Parrish’s statement, the trial court found that “the court does have

to give some deference to the experienced officer who was

questioning the individuals.” It admitted Dickson’s report of

the victims’ statements to him as spontaneous statements

because Parrish and Mercedes appeared to Dickson to be “visibly upset, emotionally upset, almost to the point of shaking,

[and] fearful,” at the time he talked to them. 

Parrish was in custody the day before testimony began but

the State did not call her to testify.1 The other witness, Mercedes, said she had memory problems due to a seizure disorder. She remembered several details of the incident, but she

testified that she did not recall overhearing Winzer say, “I’ll

smoke you and your daughter.” Parrish’s mother, Pauline, testified that she heard Mercedes tell the prosecutor the day

before trial that she remembered Winzer saying he would

“have her blown away.” Pauline also took the opportunity to

make several unsolicited remarks to and about Winzer in front

of the jury over the trial court’s objections. 

1There is a reference in the record suggesting that Parrish believed the

district attorney threatened her or was rude to her as well as a reference

to psychological medication. The record before us does not clarify the situation. 

8884 WINZER v. HALL
Officer Dickson then testified that Parrish told him that

Winzer said, “I’ll smoke you and your daughter,” and that

Mercedes told him she overheard Winzer’s remark. Dickson

also testified that Parrish said Winzer “made a motion with

his hand toward his waistband” and that she saw something

shiny in his waistband that she thought was a gun, though she

did not see it clearly. There is no evidence that Mercedes or

anyone else either saw the gesture or told Dickson about it.

The evidence is the fulcrum of the state’s case and Winzer’s

conviction. 

Five days after making the threat, Winzer again turned up

at Parrish’s house and argued with her. Parrish showed officers two broken doors and two phone lines that had been

pulled out of the wall, but there was no evidence to show who

caused the damage. The State also introduced evidence showing that Parrish had a protective order against Winzer. 

Winzer was convicted and sentenced to serve nine years in

prison. 

II. ANALYSIS 

We review a district court’s denial of a habeas petition de

novo. See Paradis v. Arave, 20 F.3d 950, 953 (9th Cir. 1994).

Alleged Confrontation Clause violations are also reviewed de

novo. Id. at 956. 

A. AEDPA Standards

The Anti-terrorism and Effective Death Penalty Act

(“AEDPA”) governs because Winzer filed his petition in the

district court on September 1, 2004. Lindh v. Murphy, 521

U.S. 320, 326 (1997); Barajas v. Wise, 481 F.3d 734, 738 (9th

Cir. 2007). 

On the merits, and under AEDPA, Winzer may obtain

relief only in one of two circumstances. First, he may obtain

WINZER v. HALL 8885
relief if the state courts’ denial of his claim “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). “Clearly established Federal law” refers to the

holdings, as opposed to the dicta, of the Supreme Court’s

decisions. See Carey v. Musladin, ___ U.S. ___, ___, 127

S. Ct. 649, 653 (2006). A state-court decision is “contrary to”

clearly established Supreme Court precedent if the decision

“contradicts the governing law set forth in [the Supreme

Court’s] cases.” Williams v. Taylor, 529 U.S. 362, 405 (2000).

A state-court decision will be an “unreasonable application”

of federal law “if the state court identifies the correct governing legal rule from this Court’s cases but unreasonably applies

it to the facts of the particular state prisoner’s case.” Id. at

407. 

Second, Winzer may obtain relief if the state courts’ decision was “based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding.” 28 U.S.C. § 2254(d)(2). Federal courts must presume the

correctness of the state court’s factual findings, but Winzer

may rebut the presumption by clear and convincing evidence.

28 U.S.C. § 2254(e)(1). 

Finally, a federal court sitting in habeas jurisdiction must

be convinced that the state court’s decision is “more than

incorrect or erroneous.” Lockyer v. Andrade, 538 U.S. 63, 75

(2003). The state court’s decision must be “objectively unreasonable.” Id. 

B. Clearly Established Supreme Court Law on

Hearsay Exceptions and the Confrontation Clause

In 1965, the Sixth Amendment’s Confrontation Clause was

recognized as a component of the Fourteenth Amendment’s

Due Process Clause and applied to the States. At that time, the

Supreme Court noted: 

8886 WINZER v. HALL
There are few subjects, perhaps, upon which this

Court and other courts have been more nearly unanimous than in their expressions of belief that the right

of confrontation and cross-examination is an essential and fundamental requirement for the kind of fair

trial which is this country’s constitutional goal. 

Pointer v. Texas, 380 U.S. 400, 405 (1965). “The Confrontation Clause advances [this goal] by ensuring that convictions

will not be based on the charges of unseen and unknown —

and hence unchallengeable — individuals.” Lee v. Illinois,

476 U.S. 530, 540 (1986). 

[1] The Confrontation Clause provides that “[i]n all criminal prosecutions, the accused shall enjoy the right . . . to be

confronted with the witnesses against him.” U.S. Const. am.

VI. Read literally, the Clause would amount to a blanket prohibition on all hearsay testimony. It has never been construed

so broadly. But when the prosecution seeks to offer a hearsay

statement, courts must decide whether the statement is so reliable that the prosecution may safely “deny the accused his

usual right to force the declarant to submit to crossexamination, the greatest legal engine ever invented for the

discovery of truth.” Lilly v. Virginia, 527 U.S. 116, 124

(1999) (internal citation omitted) (quoting California v.

Green, 399 U.S. 149, 158 (1970)). Courts must bear in mind

several possibilities: 

The declarant might be lying; he might have misperceived the events which he relates; he might have

faulty memory; his words might be misunderstood or

taken out of context by the listener. And the ways in

which these dangers are minimized for in-court

statements — the oath, the witness’ awareness of the

gravity of the proceedings, the jury’s ability to

observe the witness’ demeanor, and, most importantly, the right of the opponent to cross-examine —

are generally absent for things said out of court. 

WINZER v. HALL 8887
Williamson v. United States, 512 U.S. 594, 598 (1994). To

this list might be added the danger of law enforcement imprimatur when testimony from a shaky witness is elicited from

a police officer. 

[2] In Ohio v. Roberts, 448 U.S. 56 (1980), the Court identified two situations in which a hearsay statement’s “veracity

. . . is sufficiently dependable to allow the untested admission

of such [a] statement[ ] against an accused,” Lilly, 527 U.S.

at 124. Under Roberts, admission of a hearsay statement does

not violate the Confrontation Clause if “the evidence falls

within a firmly rooted hearsay exception,” Roberts, 448 U.S.

at 66, or if there are other “particularized guarantees of trustworthiness such that adversarial testing would be expected to

add little, if anything, to the statements’ reliability,” Lilly, 527

U.S. at 125 (internal quotation marks omitted) (quoting Roberts, 448 U.S. at 66). The “firmly rooted” hearsay exception

is “designed to allow the introduction of statements falling

within a category of hearsay whose conditions have proved

over time to remove all temptation to falsehood, and to

enforce as strict an adherence to the truth as would the obligation of an oath and cross-examination at trial.” Lilly, 527 U.S.

at 126 (internal quotation marks omitted). 

[3] The Supreme Court has held that hearsay statements

characterized as “excited utterances” or “spontaneous declarations” are “firmly rooted” exceptions to hearsay. See Idaho v.

Wright, 497 U.S. 805, 820 (1990); White v. Illinois, 502 U.S.

346, 355-56 (1992). The reasoning for the exception is that

such statements are “given under circumstances that eliminate

the possibility of fabrication, coaching, or confabulation,” so

that “the circumstances surrounding the making of the statement provide sufficient assurance that the statement is trustworthy and that cross-examination would be superfluous.”

Wright, 497 U.S. at 820.2 Again, in White, the Court described

2The Wright Court cited two treatises and an advisory committee note

to the Federal Rules of Evidence — not Idaho state law — as support for

8888 WINZER v. HALL
a spontaneous statement as one “that has been offered in a

moment of excitement — without the opportunity to reflect

on the consequences of one’s exclamation.” 502 U.S. at 356.

In other words, a statement made after the declarant has had

an opportunity to reflect or discuss the matter with others does

not carry “the weight accorded longstanding judicial and legislative experience in assessing the trustworthiness of certain

types of out-of-court statements.” Wright, 497 U.S. at 817. 

C. Effect of the California Courts’ Finding Parrish’s

Statement Spontaneous 

In Winzer’s case, the California courts found that Parrish’s

report of his threat was admissible as a “spontaneous statement,” see Cal. Evid. Code § 1240, and so did not violate

Winzer’s rights under the Confrontation Clause. 

[4] Of course, Winzer could not obtain federal habeas relief

on the grounds that the California courts wrongly found that

his statement fit within California’s spontaneous statement

exception to hearsay. State court rulings on the admissibility

this characterization. See id. (citing 6 Wigmore, Evidence §§ 1745-1764

(J. Chadbourn rev. 1974) at 251; 4 J. Weinstein & M. Berger, Weinstein’s

Evidence ¶ 803(2)[01] (1988); Fed. R. Evid. 803(2) advisory committee’s

note). 

In light of the Supreme Court’s recent decision in Carey v. Musladin,

___ U.S. ___, 127 S. Ct. 649 (2006), the quoted language in Wright might

conceivably be dicta. However, in White, the Court’s characterization of

the exception was central to the holding of the case. Because “the evidentiary rationale for permitting hearsay testimony regarding spontaneous

declarations . . . is that such out-of-court declarations are made in contexts

that provide substantial guarantees of their trustworthiness,” the Court

held that nothing was to be gained by conditioning the admissibility of

such statements on the unavailability of the declarant. White, 502 U.S. at

355-56. Without a firm understanding of the nature of that context, the

Court would not have been able to conclude that the declarant’s availability was immaterial. Thus, for purposes of the Confrontation Clause analysis, what makes a spontaneous declaration an exception to hearsay is the

declarant’s lack of opportunity to reflect or fabricate. 

WINZER v. HALL 8889
of evidence generally fall outside the scope of federal habeas

relief, which is designed only to remedy violations of federal

law. See 28 U.S.C. § 2254(a); Burgett v. Texas, 389 U.S. 109,

113-14 (1967). The California Supreme Court is the highest

authority on the interpretation and application of California

law. See, e.g., Estelle v. McGuire, 502 U.S. 62, 67-68 (1991)

(“Today, we reemphasize that it is not the province of a federal habeas court to reexamine state court determinations on

state law questions.”); Wisconsin v. Mitchell, 508 U.S. 476,

483 (1993) (“There is no doubt that we are bound by a state

court’s construction of a state statute.”). 

[5] But where a Confrontation Clause violation is alleged,

federal courts can go beyond a state court’s characterization

and analyze whether a factual basis supports the state court’s

decision. In Paxton v. Ward, 199 F.3d 1197, 1207-11 (10th

Cir. 1999), the Tenth Circuit applied AEDPA and held that

the state court made an unreasonable determination of the

facts when it found that the statement in question was an

excited utterance for purposes of the Confrontation Clause.3

Paxton noted that “[t]he Supreme Court has rejected the argument that a state court determination admitting hearsay under

state law is dispositive of a petitioner’s habeas claim that his

constitutional confrontation rights were violated by the admission.” 199 F.3d at 1208 (citing Lee v. Illinois, 476 U.S. 530,

539 (1986)).4 Further, Paxton relied on the Lee decision not

3Paxton was followed in Woodward v. Williams, 263 F.3d 1135 (10th

Cir. 2001) (holding that state court “correctly found that Deborah’s statements to Butler and Maggart fall within the excited-utterance exception”).

4The Paxton court was referring to the Lee Court’s characterization of

the issue before it: 

Illinois . . . correctly recognizes that the admissibility of the evidence as a matter of state law is not the issue in this case; rather,

it properly identifies the question presented to be “whether that

substantive use of the hearsay confession denied Petitioner rights

guaranteed her under the Confrontation Clause. . . .” It contends,

in essence, that Lee’s Sixth Amendment rights were not violated

8890 WINZER v. HALL
merely to say that hearsay falling under the second prong of

Roberts must be supported by particularized guarantees of

trustworthiness, but to say that a federal habeas court must

consider whether a hearsay statement actually does fall within

a firmly rooted exception under the first prong of Roberts —

even if the state court has already determined that it does. 

[6] The question here does not end with the California

courts’ determination that Parrish’s report to Dickson was

“spontaneous.” The issue falls under the Confrontation

Clause: did the admission of Winzer’s threat to Parrish

through Dickson’s testimony violate Winzer’s right to confront Parrish?5

 If the circumstances surrounding Parrish’s

report of the statement to Dickson fit the Supreme Court’s

descriptions of the excited utterance or spontaneous declaration exception to hearsay, as set forth in Wright and White,

then the Confrontation Clause was not violated. If the circumstances do not fit those characterizations, then admission of

the statement violated the Confrontation Clause. Once content

is imputed to the category of spontaneous statements, it

becomes impossible to rely exclusively on the label the state

courts attach to the statement in question. 

In sum, even under AEDPA, we cannot avoid the question

of whether a hearsay statement falls within a firmly rooted

because Thomas was unavailable and his statement was “reliable” enough to warrant its untested admission into evidence

against Lee. See Ohio v. Roberts, 448 U.S. 56, 100 S.Ct. 2531,

65 L.Ed.2d 596 (1980). 

Lee, 476 U.S. at 539 (internal citation to record omitted) (second omission

in original). 

5Thus, even if a state recognized no “spontaneous statement” or “excited utterance” exception to hearsay, a defendant against whom such a

statement was admitted would have no claim for federal habeas relief if

the statement was made with no opportunity to fabricate. See 28 U.S.C.

§ 2254(a) (authorizing federal courts to grant habeas relief only for violations of federal law). 

WINZER v. HALL 8891
exception to hearsay and so complies with the Confrontation

Clause. 

D. Reasonableness of the State Courts’ Application of

Clearly Established Federal Law 

[7] As we must on AEDPA review, we presume that the

state courts’ factual findings are correct. The trial court found

that Parrish’s statement to Dickson was spontaneous because

she was “visibly upset, emotionally upset, almost to the point

of shaking, [and] fearful” as she spoke. On this basis, the trial

court made a finding that Dickson’s testimony as to her statements could be introduced because there were sufficient indicia of reliability so that confrontation was unnecessary.6

 Other

than Parrish’s demeanor, as reported by Dickson, the state

court recites, and the record contains, no evidence as to the

reliability of Parrish’s statement. 

[8] The mere fact that Parrish was upset as she spoke would

not make her utterance reliable. As the Supreme Court has

recognized, a spontaneous statement is reliable because it is

offered “without the opportunity to reflect on the consequences of one’s exclamation.” White, 502 U.S. at 356. Just

because a subject is or appears to be upset offers no guarantee

that he has not taken time to consider the matter. The subject

may be upset precisely because he’s had time to reflect, or he

may feign emotional distress in a calculated effort to appear

more credible. 

The state appeals court explained that the statement was

spontaneous because “the declarants relived the experience

and recounted it unreflectively while under the stress of the

6According to the transcript, the state trial judge stated that “there is sufficient issue of liability for the admission of the statements.” The words

“issue of liability” make no sense in this context; we assume that the transcript must have meant “indicia of reliability,” and construe the trial

court’s statement as a factual finding owed deference under AEDPA. 

8892 WINZER v. HALL
original exciting event.” But the circumstances that leap from

the record before this Court do nothing to preclude, or even

diminish, the possibility of confabulation or coaching. Parrish

told Dickson about something that happened more than five

and a half hours earlier. The trial court determined that her

intervening 911 call was not a spontaneous response to an

exciting event and, in fact, that the “bulk” of her call did not

concern Winzer’s threat at all. 

[9] The fact that Parrish made a “calm” call to 911 several

hours after the exciting event7 demonstrates that not only did

she have the opportunity to reflect on the matter, she did so

reflect. If Parrish was able to calmly and coolly call 911 several hours after the threat and discuss both the threat and other

circumstances, she must have weighed the costs of intrusion

against the benefit of obtaining help from the police. 

[10] Under these circumstances, Parrish’s later statement to

Dickson was not made under “conditions [that] have proved

over time to remove all temptation to falsehood and to enforce

as strict an adherence to the truth as would the obligation of

an oath and cross-examination at a trial,” Lilly, 527 U.S. at

126 (internal quotations omitted), or “in a moment of excitement — without the opportunity to reflect on the consequences of one’s exclamation,” White, 502 U.S. at 356.

Parrish had hours to reflect, to forget, to embellish, to be distracted, and to talk with her daughter, her mother, and perhaps

7There was no evidence presented to the jury and none is in the record

before this Court as to when the 911 call was placed. However, at trial the

parties seemed to agree that the call was placed closer to the time of the

officers’ arrival than to the time of Winzer’s departure from Parrish’s

apartment. The prosecutor conceded that “I am not trying to say that they

called the police immediately, I admit that to you.” The prosecutor, in

closing argument, said there was no evidence as to when the call was

made but argued “I hear all the time that the police, takes them forever to

get here . . . [T]hey could have made [the call] an hour earlier.” Additionally, of course, the trial court found that the “bulk” of the 911 call did not

concern the threat. 

WINZER v. HALL 8893
others before Dickson arrived. She had time and the mental

calmness, as the state court decided about the 911 call, to

choose what stance to take with the officers when they arrived

— whether to be calm and composed or excited and histrionic. The state court thus failed to apply the standard for reliability set forth by the Supreme Court. See White, 502 U.S.

at 356. As such, in finding that Parrish’s report to Dickson

was a spontaneous declaration or excited utterance, the California courts unreasonably applied federal law. No other

exception appearing, and with no other particularized guarantee of the truthfulness of Parrish’s statement, its admission

against Winzer violated the Confrontation Clause. The Sixth

Amendment does not permit the “he said she said he said” litany that convicted Winzer in this case. 

E. Prejudice

Violation of the Confrontation Clause is trial error subject

to harmless-error analysis, see Delaware v. Van Arsdall, 475

U.S. 673, 684 (1986), because its effect can be “quantitatively

assessed in the context of other evidence presented” to the

jury, Arizona v. Fulminante, 499 U.S. 279, 308 (1991). If the

error did not result in “actual prejudice,” the writ should not

issue. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993)

(adopting standard of Kotteakos v. United States, 328 U.S.

750 (1946)). “Actual prejudice” is demonstrated if the error

in question had a “substantial and injurious effect or influence

in determining the jury’s verdict.” Id. at 623; Fry v. Pliler,

___ U.S. ___, ___, 127 S. Ct. 2321, 2327 (2007); Bains v.

Cambra, 204 F.3d 964, 977-78 (9th Cir. 2000). 

Parrish’s statement about what Winzer said as admitted

through Dickson was not the only evidence against Winzer.

Mercedes told Dickson that she overheard Winzer say, “I’ll

smoke you and your daughter.” Mercedes testified at trial that

she did not recall Winzer saying that, but she remembered

many other details of the incident,8 and it would have been

8The complete trial transcript is not in this Court’s record. 

8894 WINZER v. HALL
reasonable for the jury to find that she claimed not to remember because she was unwilling to give testimony, whether true

or false, that could convict Winzer. Winzer returned to Parrish’s home a few days after the first incident, and the jury

could have reasoned by inference that he was responsible for

causing the damage to her home. When he went to Parrish’s

home, Winzer was violating a protective order. There was

overwhelming evidence that Winzer and Parrish had a violent

relationship. 

But Winzer’s potential violence could not have sufficed to

convict him under section 422. Parrish was the central witness

in the case. She reportedly heard the threat that is the basis of

Winzer’s conviction. Yet she did not testify and the proof

came in by hearsay within hearsay. If she had taken the stand

and testified that Dickson misunderstood her or put words in

her mouth, or simply denied altogether that Winzer made any

threat, he might have been acquitted. 

At the same time, the evidentiary picture presented to the

jury was materially distorted by the Confrontation Clause violation. Winzer was convicted of making a terrorist threat. The

trial court instructed the jury that it must find beyond a reasonable doubt that: 

4. The threatening statement on its face, and under

the circumstances in which it was made, was so

unequivocal, unconditional, immediate, and specific

as to convey to the person threatened, a gravity of

purpose and an immediate prospect of execution of

the threat; and 

5. The threatening statement caused the person

threatened reasonably to be in sustained fear for her

own safety or for her family’s safety. 

See Cal. Jury Instr. Crim. 9.94 (2002). 

WINZER v. HALL 8895
Dickson’s testimony that Parrish said Winzer gestured

toward a shiny object in the waistband of his pants was forceful evidence of “a gravity of purpose and an immediate prospect of execution of the threat,” and Winzer had no

opportunity at all to cross-examine Parrish on that point. 

Only two witnesses testified that Winzer made any threat.

Dickson — a police officer, who could command the jury’s

respect — testified that Parrish told him Winzer had made a

threat. The only other witness who testified that Winzer made

a threat was Parrish’s mother — a witness who personally

accosted Winzer and referred to him as “a son of a bitch” in

front of the jury, even after being admonished by the judge.

Assuming the jury believed Parrish’s mother, a somewhat

dubious prospect, she did not testify that Winzer made a

motion toward a potential weapon at his waistband. Without

testimony as to that motion, there was no proof that Winzer

intended Parrish to fear for her safety. 

Dickson only had Parrish’s report of what she said Winzer

did. The trial court excluded the 911 call on the grounds that

Parrish was not sufficiently fearful at the time she made it.

Not only was Parrish “one of the calmest” 911 callers the

judge had ever heard, but “the bulk of the tape” apparently

had nothing to do with Winzer’s reported threat. The jury was

not permitted to hear and weigh that evidence for itself. 

[11] By contrast, Dickson’s description of Parrish’s and

Mercedes’s demeanor and fear gave the impression that the

only reason Parrish called the police was that she and Mercedes feared Winzer would act on his threat and, further, that

they were still upset, shaking, and fearful more than five and

a half hours after Winzer left, even though the trial court

knew that was not the case because the 911 call was “one of

the calmest” it had ever heard. The erroneous impression created for the jury was the inevitable result of the trial court’s

misapplication of the spontaneous declaration exception to

hearsay. The court’s rulings stacked the deck. 

8896 WINZER v. HALL
[12] Significantly, because all the evidence before the jury

tended to show that Parrish was deeply afraid, defense counsel had only the weakest means of dispelling the impression

that she was absent from trial because she was afraid of Winzer. She might, instead, have been afraid of testifying under

oath. She might have dreaded making a choice between telling the truth at trial and being accused of filing a false police

report, on the one hand, or committing perjury on the witness

stand and risking prosecution if the jury believed Mercedes

when she refused to support Parrish’s report to Dickson.

Defense counsel could say these things, but the distorted evidentiary picture and common sense suggested otherwise. 

Domestic violence cases are exceedingly difficult — and

important — to prosecute. But the evidence in this case is

equivocal at best about the nature of the threat. While it is

understandable that a victim of domestic violence might not

report an incident or might retract a previous report of domestic violence, it is less understandable that a victim of domestic

violence would wait several hours to report a genuine threat,

then report it in “one of the calmest 911 calls” in the trial

court’s experience — and in a call that primarily concerned

other matters. Maybe Winzer made the threat and meant it,

but all of the evidence produced at trial is also consistent with

a finding that he did not make it, or he did not mean it. 

[13] Only cross-examination of Parrish could flesh out the

testimony, and that was precluded by the trial court’s rulings.

Under such circumstances, it is especially important to toe the

constitutional line. Instead, the prosecutor took full advantage

of Winzer’s unconstitutional dilemma by converting Parrish’s

absence into substantive evidence of her fear of Winzer.9 She

argued in closing: 

9The prosecutor also emphasized the centrality of Dickson’s report of

Parrish’s statement: 

First of all I just want to go through the elements. Basically when

[defense counsel] went through the elements and said that the eleWINZER v. HALL 8897
Now, I also want to bring up this whole issue

about the victim not being here on the stand, it is not

like that is not done all the time, it is not like it is

unconstitutional. Believe me, if we dismissed or

didn’t go forward on every case where someone

didn’t come to court, we would never get convictions, and what message, you talk about the message

we would be sending to the victim, what message

would it be sending to people who commit crimes?

Hey, if you scare them or get rid of them, no case.

It is legal, it is fair, it is just that we are going forward without a victim because there are other things

to corroborate what happened, there are other things

besides her getting up here. 

And counsel tells you, well, if she got up here you

would easily be able to tell that she was lying, so that

infers [sic] that he is saying you can easily tell when

someone is lying about being scared. And then he

also tells you that Officer Dickson seems like a

really fair, reasonable guy. Well, he was there that

day so if [s]he was lying he would easily be able to

tell that she was lying. He said he saw her and he

said that she was scared. I don’t know, maybe you

have secret powers that Officer Dickson doesn’t

have but Officer Dickson believed them. . . . 

And domestic violence cases are a little different

than most cases, for instance, it is not unusual to not

hear from the victim, and I will be the first to tell

you that I wished that Parrish Harvey walked

ments weren’t made, his premise for every element that wasn’t

made was that the threat wasn’t made, so what I want to say to

you is that if you believe that that threat was made, “if you leave

me I will smoke you,” then all of the elements of 422 have been

met because it is clearly the type of threat that we are talking

about. 

8898 WINZER v. HALL
through that door and got on the stand and told you

what happened to her on December 2nd, but some

things are beyond my control, and I am sure that the

defendant wished that we just didn’t go forward with

our case, but that didn’t happen because this case is

not about Parrish Harvey versus the defendant, this

case is about the People of the State of California

versus the defendant, and that is why I am here and

that is why you are here. 

[14] Parrish’s hearsay report to Officer Dickson was why

Winzer was there. He was entitled to cross-examine her. Her

absence had a substantial and injurious influence on the jury’s

verdict. Habeas relief is required. 

The District Court is REVERSED and the case is

REMANDED with instructions to issue the writ and require

the state court either to grant a new trial or to dismiss the

charge of making a terrorist threat. 

WINZER v. HALL 8899