1 

RECOMMENDED FOR FULL-TEXT PUBLICATION 

Pursuant to Sixth Circuit I.O.P. 32.1(b) 

File Name: 15a0225p.06 

UNITED STATES COURT OF APPEALS

FOR THE SIXTH CIRCUIT 

_________________ 

WILLARD MCCARLEY, 

Petitioner-Appellant, 

v. 

BENNIE KELLY, Warden, 

Respondent-Appellee. 

┐

│

│

│

│

│

│

│

┘

No. 12-3825 

On Remand from the Supreme Court of the United States. 

No. 5:09-cv-02012—Benita Y. Pearson, District Judge. 

Decided and Filed: September 10, 2015 

Before: DAUGHTREY, GIBBONS, and DONALD, Circuit Judges. 

_________________ 

COUNSEL 

ON BRIEF: Melissa M. Prendergast, OHIO PUBLIC DEFENDER’S OFFICE, Columbus, 

Ohio, for Appellant. Mary Anne Reese, OFFICE OF THE OHIO ATTORNEY GENERAL, 

Cincinnati, Ohio, for Appellee. 

_________________ 

OPINION

_________________ 

BERNICE BOUIE DONALD, Circuit Judge. This is an appeal from the district court’s 

denial of Petitioner Willard McCarley’s petition for a writ of habeas corpus pursuant to 

28 U.S.C. § 2254. McCarley argued in his petition that the Ohio Court of Appeals unreasonably 

applied clearly established Sixth Amendment law by allowing a child psychologist to read into 

evidence the testimonial hearsay statements of a three-and-a-half-year-old declarant, where the 

declarant was not subject to any prior cross-examination. The district court held that although 

the Ohio state courts unreasonably applied the rule of Crawford v. Washington, 541 U.S. 36 

>
No. 12-3825 McCarley v. Kelly Page 2 

(2004), the Sixth Amendment violation was harmless error under Brecht v. Abrahamson, 

507 U.S. 619 (1993), because it could not have substantially influenced the jury’s verdict. On 

July 10, 2014, applying de novo review, we reversed the district court’s judgment and remanded 

with instructions to grant McCarley a conditional writ of habeas corpus. McCarley v. Kelly, 

759 F.3d 535, 549-50 (6th Cir. 2014). 

On June 29, 2015, the United States Supreme Court vacated our opinion and remanded 

the case to us for further consideration in light of Davis v. Ayala, 135 S. Ct. 2187 (2015). Kelly

v. McCarley, 135 S. Ct. 2887 (2015). The import of Davis is that our prior application of 

de novo review was erroneous. See 135 S. Ct. at 2198-99 (“[A] prisoner who seeks federal 

habeas corpus relief must satisfy Brecht, and if the state court adjudicated his claim on the 

merits, the Brecht test subsumes the limitations imposed by AEDPA.”). But even under the 

appropriate deferential standard of review, we conclude that the state court unreasonably applied 

clearly established federal law, and that the error was not harmless under Brecht. Accordingly, 

we REVERSE the judgment of the district court and REMAND the case with instructions to 

grant McCarley a conditional writ of habeas corpus. 

I. 

On direct appeal, the Ohio Court of Appeals described the factual background of 

McCarley’s trials and convictions as follows: 

{¶ 2} Charlene Puffenbarger filed a paternity suit naming McCarley as the father 

of her two year old son in November of 1991. Charlene filed the suit to obtain 

child support from McCarley, who initially denied paternity. McCarley did not 

wish to pay Charlene child support as he was already paying child support to 

Kim Pennington, his former girlfriend and the mother of his six year old son. 

McCarley threatened Charlene to drop the suit and stated that he would kill her 

before paying her child support. 

{¶ 3} On January 20, 1992[,] at approximately 10:00 a.m., a neighbor came to 

Charlene’s apartment and found her on the couch. Charlene had several scalp 

lacerations, defensive wounds on her hands, and a leather strap wrapped twice 

around her neck. The coroner later estimated that Charlene had died sometime 

between 12:30 and 1:30 a.m. Both of Charlene’s two children were at home when 

her murder occurred. 

{¶ 4} When the police arrived at Charlene’s apartment, her three year old son 

(“D.P.”) repeatedly looked at the uniformed officers and stated: “It was him. He 
No. 12-3825 McCarley v. Kelly Page 3 

hurt mommy.” Four days later, he made related statements in the presence of 

Phyllis Puffenbarger, D.P.’s grandmother. D.P. picked up a toy telephone and 

said things such as: 

“I am going to get the belt. A policeman. Go kick that window. 

Phone. Get the stick. I am going to shoot you. *** A policeman. 

My mom seen the policeman. *** What you do that to my mom. 

*** Policeman hit my mommy. Put tape on her.” 

Phyllis testified that D.P. had tears in his eyes and was looking at a picture of his 

mother when he made the statements. As a result of this incident, Phyllis 

contacted the police and took D.P. to a child psychologist at their suggestion. 

Dr. Dawn Lord was able to elicit several similar statements from D.P. during her 

sessions with him. 

{¶ 5} On December 19, 1995, police officers made a surprise visit to McCarley’s 

home on an unrelated matter. While speaking with McCarley in his garage, 

police officer Dennis Balogh saw a deputy sheriff’s jacket and sheriff’s cap 

strewn across a moving dolly. Officer Balogh remembered D.P.’s statements 

from years before and confiscated the jacket and cap as contraband. 

{¶ 6} On May 21, 2004, a grand jury indicted McCarley on one count of 

aggravated murder, a special felony embodied in R.C. 2903.01(A). The jury 

ultimately found McCarley guilty, but an error during trial caused this Court to 

reverse the jury’s verdict on appeal and remand the case. McCarley’s second trial 

commenced on January 16, 2007. On January 25, 2007, the jury found McCarley 

guilty of aggravated murder. He was sentenced to life imprisonment with the 

possibility of parole in twenty years. 

McCarley alleges that the admission of the testimony of Dr. Lord, the child psychologist, 

violated his Sixth Amendment right to confront the witnesses against him. Dr. Lord read to the 

jury, over counsel’s contemporaneous objection, three letters she wrote to Lieutenant John 

Karabatsos (“Lt. Karabatsos”) detailing her therapy sessions with the murder victim’s minor son, 

D.P. The first letter to Lt. Karabatsos, prepared by Dr. Lord on January 30, 1992, stated: 

Thank you for referring [D.P.] to me. On January 30th, 1992, I had the 

opportunity to meet with [D.P.] for a diagnostic interview . . . . 

At that time he presented himself as a talented boy with many strengths. 

However, signs of anxiety and depression were noted. Also, some mild 

developmental delays were evidenced. It is important to realize that [D.P.] has 

experienced a number of recent psychosocial stressors. These included the 

following: Change in residency, death of his mother, and alleged witnessing of 

his mother’s death. On the Parent Rating Scale of the behavior rating profile, 

[D.P.’s] maternal grandmother indicated that [D.P.] is shy, clings to parents, and 

is overly sensitive to teasing. It is important to realize that the maternal 
No. 12-3825 McCarley v. Kelly Page 4 

grandparents appear to be very concerned about [D.P.] and his behavior. Also, 

they were in the process of grieving the loss of their daughter. 

During the clinical interview, [D.P.] initially appeared fearful and guarded. When 

discussing this area, he reported that the alleged murderer of his mother 

threatened him with violence. He stated that the man told him he would kill him 

if he told about the homicide. This area was discussed with [D.P.] as well as 

safety issues were presented. Then [D.P.] became very verbal and open 

concerning his mother’s death. It is imperative to realize that [D.P.] reported that 

he had witnessed the death -- I am sorry. When discussing this area, he said two 

guys, referring to two men, were in the house at mom’s. When asked further 

about this, he stated these men had been there before and that the one man had a 

gun. When asked further about the situation, [D.P.] reported that the two men 

were white men and that the one man wore clothes that resembled a uniform. He 

stated that the one man began to become verbally assaultive with his mother and 

that an argument broke out. He said they are arguing, they were yelling, arguing, 

loud, louder, hit her. I am done. [D.P.] indicated that not only did verbal abuse 

occur, but that the man allegedly began to hit and beat his mother. He reported 

that this was one of his mother’s boyfriends. He states that the man’s name was 

Tim and that the man had been at the home two or three times previously. He was 

not able to provide the last name for this man. 

During the consultation with the maternal grandfather, he stated that the mother 

did know a man by the name of Tim Greene who had worked on her car. The 

maternal grandmother stated that her daughter had dated a man by the name of 

Tim before dating Willard, the alleged father of [D.P.’s] sibling. It is important to 

realize that there are limitations to the clinical interview and the testing process 

due to [D.P.’s] young age. However, it is felt that he did witness his mother’s 

death and the alleged crime. Without question, this has had an adverse impact on 

[D.P.], and he is very confused and fearful concerning the loss of his mother. 

[D.P.] does need individual psychotherapy, and his maternal grandmother -- 

grandparents, excuse me, need parent counseling in order to help them deal with 

the recent loss. Also, [D.P.] does need a dental examination and possible dental 

care. 

His next appointment is scheduled for February 6th, 1992. If you need any 

further information or if I can ever be of any help to you, please do not hesitate to 

contact me. Thank you for your time and consideration in this matter. 

The second letter, prepared by Dr. Lord on May 14, 1992, stated: 

It is always a pleasure to work with you. I greatly appreciated the opportunity to 

see [D.P.] and his young brother . . . . [D.P.] has been seen at my office on four 

different occasions. At each time, he was very consistent in the details 

surrounding his mother’s death. He reports that two men came to his mother’s 

home and that both were Caucasian. He felt that both of the men were dressed in 

some form of uniform. He consistently stated that the uniforms were black. Also, 
No. 12-3825 McCarley v. Kelly Page 5 

he indicated that one man had a gun. He reported that his mother knew the men 

and let them into the home without a struggle. He stated that the two men and his 

mother had been talking for quite some time, about the length of a TV program 

such as Sesame Street. Then he reported that the one -- that one of the men 

engaged in an argument with his mother. Allegedly, the argument escalated until 

the mother was attacked. [D.P.] felt that she had been attacked in the bedroom 

area. However, [D.P.] slept in the living room, which he could have confused as 

being the bedroom. 

When presented with six different photographs, [D.P.] consistently picked a 

suspect, reporting it was that guy who hit his mother. The different pictures of 

this man which he has picked and identified as the alleged murderer were 

reportedly pictures of the alleged father of his brother. Also, he did identify two 

suspects as being possibly the man’s friend that came to this home. It is important 

to realize that [D.P.] indicated that the murderer was accompanied by the -- by a 

friend, and the relationship these two men had were very friendly and close. 

Finally, [D.P.] reported that the alleged murderer went into the mother’s closet 

and got something. He was unable to identify what kind of object was used in the 

attack of his mother. Due to [D.P.’s] young age, the time which has elapsed 

between the death of his mother, and the various interviews and the inherent 

difficulties in evaluating young children, it is not possible to definitively state 

who murdered [D.P.’s] mother. Rather, it is possible to take [D.P.’s] impressions 

of the situation and use them in order to obtain further information. 

If you need any further information or if I can ever be of any help to you, please 

do not hesitate to contact me. Thank you for your time and consideration in this 

matter. 

The third and final letter, prepared by Dr. Lord on June 6, 1992, stated: 

It is always a pleasure to work with you. On June 6th, 1992, I again met with 

[D.P.] for an interview and consulted with his maternal grandmother. During the 

interview [D.P.] provided additional information. He reported that one of the two 

men hit his mother with a gun. He stated that the man hit his mother on the top 

and back side of her head. Again, he said that he watched his mother’s murderer -

- or murder, excuse me. He indicated that he was helping hi[s] mom and he was 

trying to get her out of the apartment during the time of the attack. Also, he 

added that one man went to his mother’s closet, got a belt, and hurt his mother 

with it. Finally, he reported that the two men argued once his mother was dead. 

If you need any further information or if I can ever be of any help to you, please 

do not hesitate to contact me. 

At trial, Lt. Karabatsos explained why D.P. went to see Dr. Lord in the first place. On 

direct examination, after the lieutenant stated that police were initially unable to get any 

information about the murder from D.P., the prosecutor asked Lt. Karabatsos: “So what did you 
No. 12-3825 McCarley v. Kelly Page 6 

do about that in order to have [D.P.] open up or be able to talk about anything he might have 

heard or seen?” Lt. Karabatsos responded: 

When we -- when we originally talked to him, we determined that I was -- myself 

or Officer Breiding, neither one, were going to be able to extract any information 

from him, and we determined it was necessary to bring somebody who was a 

child psychologist, possibly, or somebody who was a child therapist in to speak 

with him, see if they could extract any information from him that he remembered 

from that evening. And, of course, we believed that over the course of time he 

would need some assistance anyhow. 

Then, on cross-examination, defense counsel asked Lt. Karabatsos why he sought outside 

assistance in communicating with D.P.: “[Y]ou called Child Guidance because you wanted to 

find someone who could perhaps extract information from the child in the appropriate way and 

help the investigation?” Lt. Karabatsos confirmed: “That is -- that is all -- that is my main 

reason. . . . Yes, our main concern was to try to get the information, but that was not the only 

thing that crossed our mind at the time.” 

Lt. Karabatsos also testified on cross-examination about his relationship and 

communications with Dr. Lord. The lieutenant stated that he “would have asked Dr. Lord that 

anything that [D.P.] would have said during the course of the counsel, during the course of her 

interviews with him, that she make me aware of that so that I could use it in my investigation.” 

In response to a follow-up question, Lt. Karabatsos answered that he absolutely planned to use 

any information provided by Dr. Lord in his investigation to assist him with identifying the 

persons responsible for the murder. 

The State argues that, even without Dr. Lord’s testimony, sufficient evidence supported 

the verdict such that any Sixth Amendment violation was harmless error. This evidence includes 

inconclusive DNA evidence on the murder weapon and other items from the victim’s home and 

the testimony summarized in the following paragraphs. 

Phyllis Puffenbarger, the victim’s mother and D.P.’s maternal grandmother, testified to 

statements, admitted at both trials as an excited utterance, that D.P. made approximately four 

days after his mother’s murder. D.P. began speaking very quickly into a toy telephone and 

looking at a picture of his deceased mother. Phyllis transcribed what D.P. said, and she read two 

sets of her notes to the jury at trial. The first of those notes stated: 
No. 12-3825 McCarley v. Kelly Page 7 

I am going to get the belt. A policeman. Go kick that window. Phone. Get the 

stick. I am going to shoot you. Kick the window. Bathroom. Are you out of 

here. Don’t have no phone. A policeman. My mom seen the policeman. Gun. 

Threw in garbage. Sleeping on couch. I am going to crack you. Kick the 

window. Not getting out of here. Bob. I am not going to your house. Corner. 

Call Paw Paw. Get your radio. Go to sleep. Don’t shoot. Paw Paw got the 

paper. Policeman did it, not the guy. Lights on. Big light. No telephones. You 

hear me. Policeman got buttons. What do you come to my house for. What you 

do that to my mom. You break window. Bob. Policeman hit mommy. Put tape 

on her. Put nuts in her mouth. Bad boy. 

And he motions towards his neck. Picked up her picture and pretend talking on 

phone. 

Belt hitting. Not belt but with a gun. I will break your foot. Pillow. Head. 

[Brother] and me. I don’t want to shoot. Do you want to go to bed. Policeman 

got out of my house. We can’t get the policeman out of here. 

The second note stated: 

The guy laughed and sticking tongue. Mom stick tongue and spit. Clap hands. 

Get off that bed. Shirt was ripping. Nothing was cold. Smacked hands together. 

The bike and pointed to [brother]. Mommy’s shirt was dirty. Light on. Crack. 

Scary. Gun. Kicking the window with feet. Was up in bed. No. She walked up 

and see this gun. Police was open his mouth talking. Shoot somebody. She write 

on herself. She got a phone. She breaked it. That car will stay here. She 

bumped her head. Took his hand and smacked his face. She was jumping on bed. 

You see that belt. Gun don’t work. [Brother] was walking on floor. Greg and 

Trey knocking on door and Mary. A while to get in door. Get in van. He opened 

the door. Key. He put it down on table. Better turn the truck on. Pillow. You 

better wait a minute. Turn truck on. Put pop in there. Police that guy. Pulling on 

bed and chair. Well, come in the house. Police have hat like that ball cap. Put 

pillow on mommy. Kick somebody. Set that belt. Crack somebody. Police 

lights on and off. Mommy jumping on bed. 

Officer Eric Breiding testified concerning D.P.’s reaction to seeing police officers at the 

scene immediately following his mother’s murder. According to Breiding: “When [D.P.] first 

saw me, the only thing he said, ‘It was him. He hurt mommy.’ And every uniformed officer he 

saw that day, he made the same statement over and over and over again.” 

Deputy Dennis Balogh testified regarding events that took place on December 19, 1995, 

well after Charlene Puffenbarger’s 1992 homicide. Balogh went to McCarley’s home on an 

unrelated matter and had a face-to-face encounter with McCarley in his garage. Balogh testified 

that, during this encounter, he observed “a deputy sheriff’s jacket and a deputy sheriff’s ball cap” 
No. 12-3825 McCarley v. Kelly Page 8 

in the garage. Balogh confiscated those items as contraband because “Mr. McCarley was not 

related to any law enforcement agency,” and testified that he understood at that time “the 

relationship of that jacket and hat to” Charlene Puffenbarger’s murder. 

II. 

A. 

When a district court denies a habeas petition, this Court reviews the lower court’s legal 

conclusions de novo and its findings of fact for clear error. Broom v. Mitchell, 441 F.3d 392, 

398 (6th Cir. 2006). The relitigation bar of the Anti-Terrorism and Effective Death Penalty Act 

of 1996 (AEDPA), 28 U.S.C. § 2254(d), applies to “any claim . . . adjudicated on the merits in 

State court proceedings.” In our previous opinion, we determined that the Ohio Court of 

Appeals’ harmless-error analysis did not constitute an adjudication on the merits for the purposes 

of § 2254(d)’s relitigation bar. McCarley, 759 F.3d at 543-44. Specifically, we cited the 

Ninth Circuit’s opinion in Ayala v. Wong, 730 F.3d 831 (9th Cir. 2013), for the proposition that a 

state court’s denial of relief based only on harmless-error analysis does not constitute an 

adjudication of a constitutional claim on the merits—thereby permitting de novo review, rather 

than review under the deferential AEDPA standard. Id. at 543 (quoting Ayala, 730 F.3d at 843). 

The Supreme Court explicitly rejected that proposition in Davis, holding that a state court’s 

determination that a constitutional error was harmless “undoubtedly constitutes an 

adjudication . . . ‘on the merits’” for purposes of § 2254(d). 135 S. Ct. at 2198 (citing Mitchell v.

Esparza, 540 U.S. 12, 17-18 (2003) (per curiam)); see also McCarley, 759 F.3d at 550 

(Daughtrey, J., concurring) (“The determination of whether any constitutional error is harmless 

or prejudicial . . . is part and parcel of a merits adjudication of the issue.”). Accordingly, the 

deferential AEDPA standard applies to McCarley’s petition and we may grant habeas relief only 

if the Ohio court’s adjudication: 

(1) resulted in a decision that was contrary to, or involved an unreasonable of, 

clearly established Federal law, as determined by the Supreme Court of the 

United States; or (2) resulted in a decision that 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). 
No. 12-3825 McCarley v. Kelly Page 9 

A state-court adjudication is “contrary to” federal law if it reaches a conclusion of law 

opposite to that reached by the Supreme Court, or if the state court decides a case with materially 

indistinguishable facts differently than the Supreme Court. Goodell v. Williams, 643 F.3d 490, 

495 (6th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06 (2000)). “Clearly 

established Federal law” refers to Supreme Court holdings at the time of the state court’s 

decision. Williams, 529 U.S. at 412. We may not employ circuit precedent “to refine or sharpen 

a general principle of Supreme Court jurisprudence into a specific legal rule that [the Supreme 

Court] has not announced.” Marshall v. Rodgers, 133 S. Ct. 1446, 1450 (2013) (per curiam). 

Under § 2254(d)(1)’s “unreasonable application” clause, a federal court may grant habeas 

relief if the state court identified the correct legal principle but then applied it to the facts of the 

petitioner’s case in an objectively unreasonable way. Goodell, 643 F.3d at 495. The Supreme 

Court has stated that, to constitute an unreasonable application, “the state court’s ruling . . . [must 

be] so lacking in justification that there was an error well understood and comprehended in 

existing law beyond any possibility for fairminded disagreement.” Harrington v. Richter, 562 

U.S. 86, 103 (2011). In sum, “[i]f this standard is difficult to meet, that is because it was meant 

to be. . . . [H]abeas corpus is a ‘guard against extreme malfunctions in the state criminal justice 

systems,’ not a substitute for ordinary error correction through appeal.” Id. at 102-03 (quoting 

Jackson v. Virginia, 443 U.S. 307, 332 n.5 (1979) (Stevens, J., concurring)). 

B. 

Because the Ohio Supreme Court denied leave to appeal, the Ohio Court of Appeals 

issued the last reasoned opinion addressing McCarley’s Sixth Amendment claim: 

{¶ 23} McCarley argues that the trial court violated his right to confront the 

witnesses against him by allowing Dr. Lord to testify as to the statements that 

D.P. made during therapy. Specifically, McCarley argues that: (1) D.P.’s 

statements were testimonial because D.P. went to see Dr. Lord at the request of 

the police, and (2) there was no opportunity to cross-examine D.P. at trial because 

he could not remember the statements that he had made as a three year old. 

McCarley claims that he suffered material prejudice as a result of Dr. Lord’s 

testimony. We disagree. 

{¶ 24} Initially, we note that we have doubt as to the validity of McCarley’s 

argument that D.P.’s statements to Dr. Lord during therapy were testimonial in 

nature. See Crawford v. Washington (2004), 541 U.S. 36, 68-69 (finding that 
No. 12-3825 McCarley v. Kelly Page 10 

only testimonial statements are subject to the rigors of the confrontation clause); 

see, also, State v. Siler, 116 Ohio St.3d 39, 2007-Ohio-5637 (holding that a three 

year old child’s statements to police were testimonial because the primary 

purpose of the questioning was to establish past events for later prosecution). 

Even assuming it was error to allow Dr. Lord to testify, however, we find the 

purported error to be harmless. See Crim.R. 52(A); State v. Cutlip, 9th Dist. 

No. 03CA0118-M, 2004-Ohio-2120, at ¶ 17. On harmless error analysis, we 

“inquire ‘whether there is a reasonable possibility that the evidence complained of 

might have contributed to the conviction.’” Id., quoting Madrigal, 87 Ohio St.3d 

at 388, citing Chapman v. California (1967), 386 U.S. 18, 23. 

We must determine whether the Ohio court’s reasoning was objectively unreasonable in 

light of the Supreme Court’s decisions interpreting the Sixth Amendment’s Confrontation 

Clause. The “starting point” for a § 2254 case “is to identify the ‘clearly established Federal law, 

as determined by the Supreme Court of the United States’ that governs the habeas petitioner’s 

claims.” Marshall, 133 S. Ct. at 1449 (citing Williams, 529 U.S. at 412). 

The Sixth Amendment provides, in pertinent part, that: “In all criminal prosecutions, the 

accused shall enjoy the right . . . to be confronted with the witnesses against him . . . .” 

U.S. Const. amend. VI. Incorporated through the Fourteenth Amendment, the Confrontation 

Clause, a “bedrock procedural guarantee,” applies with equal force to criminal prosecutions by 

the States. Crawford, 541 U.S. at 42; see also Pointer v. Texas, 380 U.S. 400, 406 (1965). 

The Supreme Court’s decision in Crawford v. Washington initiated a sea change in 

Confrontation Clause jurisprudence. 541 U.S. at 68. After canvassing the English common law 

and practices of the States shortly after the Revolution, the Crawford Court arrived at an 

unequivocal conclusion as to what the Confrontation Clause requires with regard to testimonial 

evidence: “Where testimonial evidence is at issue, . . . the Sixth Amendment demands what the 

common law required: unavailability and a prior opportunity for cross-examination.” Id. The 

Crawford Court unfortunately “le[ft] for another day any effort to spell out a comprehensive 

definition of ‘testimonial’” beyond a list of examples including police interrogations and prior 

testimony at a preliminary hearing, before a grand jury, or at a previous trial. Id. Justice Scalia’s 

Opinion for the Court did, however, refer to dictionary definitions of “witnesses” and 

“testimony” for guidance in interpreting the language of the Confrontation Clause itself. Id. at 

51. Witnesses are “those who bear testimony. Testimony, in turn, is typically a solemn 
No. 12-3825 McCarley v. Kelly Page 11 

declaration or affirmation made for the purpose of establishing or proving some fact.” Id.

(quoting 2 N. Webster, An American Dictionary of the English Language (1828)) (internal 

quotation marks and alterations omitted). 

The Supreme Court handed down only one opinion further refining the scope of 

“testimonial” evidence between its decision in Crawford and the Ohio Court of Appeals’ 

rejection of McCarley’s direct appeal on February 13, 2008: Davis v. Washington, 547 U.S. 813 

(2006). The Davis Court, in a consolidated appeal, confronted two sets of statements made to 

police. Id. at 817-20.1 In Davis, Michelle McCottry made the statements at issue to a 911 

operator while reporting an ongoing domestic disturbance. Id. at 817-18. In the companion 

case, Hammon v. Indiana, Amy Hammon completed an affidavit containing the statements at 

issue after answering questions from a police officer who responded to a reported domestic 

incident at her home. Id. at 819-20. 

The Davis Court provided the following guidance for distinguishing between testimonial 

and nontestimonial statements in response to police interrogation: 

Without attempting to produce an exhaustive classification of all conceivable 

statements—or even all conceivable statements in response to police 

interrogation—as either testimonial or nontestimonial, it suffices to decide the 

present cases to hold as follows: Statements are nontestimonial when made in the 

course of police interrogation under circumstances objectively indicating that the 

primary purpose of the interrogation is to enable police assistance to meet an 

ongoing emergency. They are testimonial when the circumstances objectively 

indicate that there is no such ongoing emergency, and that the primary purpose of 

the interrogation is to establish or prove past events potentially relevant to later 

criminal prosecution. 

Id. at 822 (emphasis added) (footnote omitted). The Court went on to clarify that the 

Confrontation Clause applies to informal, as well as formal, prior testimony. Id. at 826 (“In any 

event, we do not think it conceivable that the protections of the Confrontation Clause can readily 

be evaded by having a note-taking policeman recite the unsworn hearsay testimony of the 

declarant, instead of having the declarant sign a deposition.”). The fruits of an interrogation, 

 1

In Davis, the statements at issue were actually made to a 911 operator, but the Supreme Court considered 

the acts of 911 operators “to be acts of the police.” 547 U.S. at 823 n.2. This holding made it unnecessary for the 

Court explicitly to “consider whether and when statements made to someone other than law enforcement personnel 

are ‘testimonial.’” Id.
No. 12-3825 McCarley v. Kelly Page 12 

“whether reduced to a writing signed by the declarant or embedded in the memory (and perhaps 

notes) of the interrogating officer, [are] testimonial.” Id. Applying these principles, the Davis

Court held that Michelle McCottry’s statements to the 911 operator were not testimonial because 

“the circumstances of McCottry’s interrogation objectively indicate its primary purpose was to 

enable police assistance to meet an ongoing emergency,” and then reached the opposite 

conclusion regarding the statements in Amy Hammon’s affidavit because it “was part of an 

investigation into possibly criminal past conduct.” Id. at 828-29. 

Davis articulated four reasons why McCottry’s statements were not testimonial evidence. 

Id. at 827. First, “McCottry was speaking about events as they were actually happening, rather 

than describing past events.” Id. (quoting Lilly v. Virginia, 527 U.S. 116, 137 (1999) 

(plurality opinion)) (internal quotation marks and alterations omitted). Second, “any reasonable 

listener would recognize that McCottry . . . was facing an ongoing emergency.” Id. Third, 

viewing the 911 call objectively, the Court concluded that the nature of the questions asked was 

such that the answers given “were necessary to be able to resolve the present emergency, rather 

than simply to learn . . . what had happened in the past.” Id. Finally, the Court addressed the 

different levels of formality between McCottry’s 911 call and the statements held to be 

testimonial in Crawford. Id. McCottry’s frantic telephone call from an unsafe environment 

stood in stark contrast to Crawford’s calm response to questions posed by police in the safety of 

the station house. Id. Accordingly, McCottry was not bearing witness or testifying because 

“[n]o ‘witness’ goes into court to proclaim an emergency and seek help.” Id. at 828. 

Turning to Hammon’s affidavit, the Davis Court found it simple to classify those 

statements as testimonial. Id. at 829. There was no emergency in progress at the time of the 

interrogation, and the officer who questioned Hammon “was not seeking to determine . . . ‘what 

is happening,’ but rather ‘what happened.’” Id. at 830. Another key factor in the Court’s 

analysis was that “the primary, if not indeed the sole, purpose of the interrogation was to 

investigate a possible crime.” Id. Accordingly, the Davis Court held that the statements in 

Hammon’s affidavit were testimonial and their introduction likely violated the 

Confrontation Clause. Id. at 834. 
No. 12-3825 McCarley v. Kelly Page 13 

III. 

Applying the “rigorous standard” set forth in § 2254(d), Desai v. Booker, 732 F.3d 628, 

630 (6th Cir. 2013), we must first decide whether the district court correctly concluded that the 

Ohio Court of Appeals unreasonably applied Crawford in its opinion denying McCarley’s direct 

appeal. The Ohio court began its analysis by stating: “[W]e have doubt as to the validity of 

McCarley’s argument that D.P.’s statements to Dr. Lord during therapy were testimonial in 

nature.” This Court does not share those doubts. 

The facts of the instant appeal are analogous to the facts in Davis. Lt. Karabatsos 

testified that he sought out Dr. Lord to speak with D.P. because “we determined it was necessary 

to bring somebody who was a child psychologist, possibly, or somebody who was a child 

therapist in to speak with him, see if they could extract any information from him that he 

remembered from that evening.” The lieutenant also testified that he asked Dr. Lord to “make 

[him] aware” of anything D.P. said about the murder “so that [he] could use it in [his] 

investigation.” Because Dr. Lord was questioning D.P. about the night of his mother’s murder 

and reporting everything D.P. said that might be relevant to the investigation back to 

Lt. Karabatsos, Dr. Lord was acting more as a police interrogator than a child psychologist 

engaged in private counseling. Cf. Brewer v. Williams, 430 U.S. 387, 399 (1977) (holding a 

police officer violated Williams’ Sixth Amendment right to counsel by “deliberately and 

designedly set[ting] out to elicit information from Williams just as surely as and perhaps more 

effectively than if he had formally interrogated him”); Massiah v. United States, 377 U.S. 201, 

206 (1964) (holding police violated Massiah’s Sixth Amendment right to counsel when they 

“deliberately elicited” incriminating statements from him). Although Dr. Lord is not a member 

of the police department, Lt. Karabatsos’ testimony shows that, like the 911 operator in Davis, 

Dr. Lord was “at least [an] agent[] of law enforcement” such that her acts could likewise be 

considered “acts of the police.” Davis, 547 U.S. at 823 n.2. Dr. Lord’s sessions with D.P. thus 

were more akin to police interrogations than private counseling sessions, a fact that brings this 

case within the Crawford-Davis analysis for determining whether statements given to law 

enforcement personnel are testimonial evidence. 
No. 12-3825 McCarley v. Kelly Page 14 

Lt. Karabatsos’ testimony at trial also reveals the testimonial nature of D.P.’s statements. 

Even more so than Hammon’s statements to police in Davis, D.P.’s statements to Dr. Lord 

occurred long after—ten days, to be precise—any emergency situation had passed. See id. at 

830. The lieutenant unambiguously stated that his “main concern” and the “main reason” for 

D.P.’s sessions with Dr. Lord “was to try to get the information” that police personnel could not 

elicit from D.P.—including the identity of the suspects—so that Lt. Karabatsos “could use it in 

[his] investigation.” Because “the primary purpose of the interrogation [wa]s to establish or 

prove past events potentially relevant to later criminal prosecution,” D.P.’s statements are 

testimonial evidence. Davis, 547 U.S. at 822. Accordingly, the district court correctly 

concluded that the Ohio Court of Appeals unreasonably applied Crawford and Davis, as 

fairminded jurists would agree that D.P.’s statements constitute testimonial evidence where they 

were deliberately elicited in an interrogation-like atmosphere absent an ongoing emergency and 

used to prove past events in a later criminal prosecution. See id. at 827-28. 

Because Confrontation Clause violations are subject to harmless-error analysis, Delaware

v. Van Arsdall, 475 U.S. 673, 684 (1986), we must next decide whether the Sixth Amendment 

violation was harmless error under Brecht v. Abrahamson, 507 U.S. 619 (1993). See Ruelas v.

Wolfenbarger, 580 F.3d 403, 412 (6th Cir. 2009) (“[I]n this Circuit[,] . . . Brecht is always the 

test, and there is no reason to ask both whether the state court ‘unreasonably’ applied Chapman

under the AEDPA and, further, whether the constitutional error had a ‘substantial and injurious’ 

effect on the jury’s verdict.”); see also Davis, 135 S. Ct. at 2199 (“[T]he Brecht test subsumes 

the limitations imposed by AEDPA.”). 

Brecht requires a Confrontation Clause violation to have a “substantial and injurious 

effect or influence in determining the jury’s verdict” before it merits reversal on collateral 

review. Brecht, 507 U.S. at 637. In order to determine whether an error had such an effect or 

influence, the Supreme Court has instructed the lower federal courts “to ask directly, ‘Do I, the 

judge, think that the error substantially influenced the jury’s decision?’” O’Neal v. McAninch, 

513 U.S. 432, 436 (1995). “The inquiry cannot be merely whether there was enough to support 

the result, apart from the phase affected by the error. It is rather, even so, whether the error itself 
No. 12-3825 McCarley v. Kelly Page 15 

had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand.” Id.

at 438 (quoting Kotteakos v. United States, 328 U.S. 750, 765 (1946)). 

When conducting harmless-error analysis of Confrontation Clause violations, this Court 

utilizes the factors outlined by the Supreme Court in Van Arsdall. Jensen v. Romanowski, 

590 F.3d 373, 379 (6th Cir. 2009) (“[W]e assess the prejudicial impact of constitutional trial 

errors under the ‘substantial and injurious effect’ standard set forth in Brecht, examining the 

error by applying the Van Arsdall factors to the facts in the case.”). The Supreme Court 

reasoned in Van Arsdall that whether an error is harmless in a particular case “depends upon a 

host of factors.” 475 U.S. at 684. Those factors include “the importance of the witness’ 

testimony in the prosecution’s case, whether the testimony was cumulative, the presence or 

absence of evidence corroborating or contradicting the testimony of the witness on material 

points, the extent of cross-examination otherwise permitted, and . . . the overall strength of the 

prosecution’s case.” Id. Applying these factors, we have grave doubts as to whether the 

Sixth Amendment violation at McCarley’s second trial influenced the jury’s decision. 

The importance of Dr. Lord’s testimony to the prosecution’s case against McCarley 

cannot be overstated. The State relied heavily on her letters in both trials, but they acquired 

greater significance in the second trial. In its opinion addressing McCarley’s first direct appeal, 

which resulted in the reversal of his initial conviction, the Ohio Court of Appeals recognized that 

the State relied on the contents of the letter throughout its case and Dr. Lord’s 

testimony was a major portion of the State’s evidence against [McCarley]. 

Moreover, the State specifically relied on the letter in its closing argument when it 

described the child’s comments to Dr. Lord and reiterated that the letters showed 

the child had twice identified [McCarley] as the killer. 

But in the first trial D.P.’s statements were not introduced for the truth of the matter asserted. At 

the second trial, D.P.’s statements were introduced—without a limiting instruction—to establish 

the truth of the matter asserted. Thus, the State’s reliance on the letters was magnified at the 

second trial because the jury could consider them for the truth of their contents. 

Another fact showing the importance of Dr. Lord’s testimony is that the prosecution 

relied heavily on her recitation of D.P.’s statements during closing arguments. The prosecutor 

read all of D.P.’s statements from Dr. Lord’s testimony in their entirety during his initial closing 
No. 12-3825 McCarley v. Kelly Page 16 

argument and commented: “That is what [D.P.] is able to say about what happened to his 

mother. He is an eyewitness to what happened in this case.” Then, during his rebuttal, the 

prosecutor made the following remarks further illustrating that D.P.’s statements were central to 

the State’s case: 

I tell you that you heard from [D.P.] And what [D.P.] told you is absolutely 

accurate as to what happened in this case. He said, “the belt from the closet,” and 

he said, “hit with gun.” He said, “back of the head and top of the head.” 

. . . 

He said, “pillow.” We know she was suffocated with a pillow. 

He said, “police ball cap.” Very specifically, “police ball cap.” He said, “police 

uniform.” He said, “buttons,” very specifically. 

He said, “nuts in mouth.” “Nuts” in mouth. 

He tells you exactly what happened to Charlene Puffenbarger, and he tells you 

exactly who did it. Twice he identified the photograph of Willard McCarley. 

Because, according to the prosecutor’s own closing argument, D.P.’s statements provided crucial 

narrative details and the only eyewitness identification of the perpetrator, Dr. Lord’s testimony 

must have been crucial to the prosecutor’s case under Van Arsdall. This first factor therefore 

weighs in McCarley’s favor. 

The next Van Arsdall factor is “whether the testimony was cumulative.” 475 U.S. at 684. 

The district court labeled Dr. Lord’s testimony “cumulative of testimony provided by three other 

witnesses—D.P.’s grandmother (Phyllis), Officer Breiding and former deputy Balogh.” 

According to the district court, “the jury heard similar, if not identical, details to those presented 

through Dr. Lord. The duplicative content of the testimony minimized the importance 

Dr. Lord’s testimony, alone, may have had on the jury’s findings.” 

While the content of Dr. Lord’s testimony may well have duplicated some of the content 

of those other three witnesses, it was not cumulative. Phyllis’ testimony consisted of reciting the 

notes she had taken of D.P.’s nearly-incoherent rambling. Her testimony, standing alone, 

provides few details about the murder and actually introduces a host of extraneous, 

uncorroborated facts. Officer Breiding’s testimony deals with a time period before D.P. saw 

Dr. Lord and does establish that D.P. identified every police officer as a potential suspect or as 
No. 12-3825 McCarley v. Kelly Page 17 

the perpetrator, but that single detail is hardly overwhelming evidence of McCarley’s guilt. 

Finally, Officer Balogh testified only that McCarley, years later, had possession of sheriff’s attire 

when he had no connection to law enforcement. This possession of contraband law enforcement 

attire also is not overwhelming evidence of McCarley’s guilt. 

All of the above testimony paints a clear picture of the crime, but only when considered 

in light of Dr. Lord’s testimony about D.P.’s statements to her. Dr. Lord’s testimony therefore 

was not cumulative, but rather more akin to a keystone holding the arch of the State’s case 

together. Remove that crucial block, especially D.P.’s eyewitness identification, and the State’s 

case collapses into disjointed pieces. This factor therefore weighs in favor of McCarley. 

The third Van Arsdall factor requires us to consider “the presence or absence of evidence 

corroborating or contradicting the testimony of the witness on material points.” 475 U.S. at 684. 

The analysis above dealing with whether Dr. Lord’s testimony was cumulative of other 

witnesses’ testimony shows that there was significant corroboration of D.P.’s statements at 

McCarley’s trial. This factor therefore weighs in favor of the State. 

The next factor, “the extent of cross-examination otherwise permitted,” id., also weighs 

in favor of the State. McCarley had a full opportunity at trial to cross-examine all of the 

prosecution’s witnesses save for D.P. 

The final Van Arsdall factor we consider is “the overall strength of the prosecution’s 

case.” Id. Had the jury not heard and considered D.P.’s statements identifying McCarley as the 

perpetrator, the State’s case would have been almost entirely circumstantial. The only physical 

evidence, the DNA gathered at the scene, was inconclusive. The DNA tests established that the 

belt used to murder the victim might have contained male DNA from McCarley’s paternal 

relatives, but this evidence is far from overwhelming. D.P.’s younger brother is a male 

descendant of McCarley, and McCarley’s father often visited the house. Furthermore, none of 

the testimony at trial save for Dr. Lord’s included a conclusive identification of McCarley as the 

murderer. Even considered together, the testimony of Phyllis Puffenbarger, Officer Breiding, 

and Deputy Balogh does not specifically link McCarley to the murder. In sum, without 

Dr. Lord’s testimony, the prosecution’s case was far from “substantial and overwhelming,” as 

the district court described it. This factor therefore weighs in favor of McCarley. 
No. 12-3825 McCarley v. Kelly Page 18 

We thus have grave doubts as to whether the violation of McCarley’s rights under the 

Confrontation Clause had a “substantial and injurious effect or influence in determining the 

jury’s verdict.” Brecht, 507 U.S. at 637. Three of the Van Arsdall factors—the importance of 

the testimony, whether it was cumulative, and the overall strength of the prosecution’s case—

favor McCarley. Dr. Lord’s testimony was a crucially important piece of the prosecution’s 

evidence because it contained the only eyewitness identification of McCarley. Her testimony 

was not cumulative, and the overall strength of the prosecution’s case against McCarley was not 

overwhelming without D.P.’s statements. 

Only two of the Van Arsdall factors—the presence of corroborating evidence and the 

extent of cross-examination otherwise permitted—weigh in favor of the State. These factors that 

favor the prosecution do not carry as much weight as those that favor McCarley. While 

McCarley had the opportunity to cross-examine all the other witnesses, that he had no 

opportunity to cross-examine D.P. was the critical error in the state-court proceedings. 

Additionally, the fact that other testimony corroborates D.P.’s statements underscores the 

importance of Dr. Lord’s testimony. Accordingly, the Confrontation Clause violation at 

McCarley’s second trial was not harmless error under Brecht (or, thereby, § 2254(d)). See

Davis, 135 S. Ct. at 2199. 

IV. 

Because D.P.’s statements constitute testimonial evidence and the Confrontation Clause 

violation at McCarley’s second trial was not harmless error, we REVERSE the district court’s 

denial of McCarley’s § 2254 petition and REMAND to the district court with instructions to 

grant McCarley a conditional writ of habeas corpus.