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

_________________

W ILLARD M C C ARLEY , Petitioner-Appellant ,

v

.

B ENNIE K ELLY , 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 Mc Carley’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 st atements of a three-and-a-half -year-old declarant, where the declarant was not subject to any prior cross-exam ination. The district c ourt 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 Suprem e 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 th e 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 A ppeals described the factual background of McCarley’s trials and convictions as follows:
{¶ 2} Charlene Puffenbarger filed a patern ity 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 pa ying child support to Kim Pennington, his former girlfriend and th e mother of his si x year old son. McCarley threatened Charlene to drop th e suit and stated that he would kill her before paying her child support. {¶ 3} On January 20, 1992[,] at approxi mately 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 estima ted that Charlene had died sometime between 12:30 and 1:30 a.m. Both of Char lene’s two children we re 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. HeNo. 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 an d took D.P. to a child psychol ogist 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 ma de a surprise visit to McCarley’s home on an unrelated matte r. 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 i ndicted 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. McCa rley’s second trial commenced on January 16, 2007. On Janua ry 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 ad mission of the testimony of Dr. Lord, the child psychologist, violated his Sixth Amendment right to confront the witnesses agains t him. Dr. Lord read to the jury, over counsel’s contemporaneous objection, three letters she wrote to Lieutenant John Karabatsos (“Lt. Karabatsos”) de tailing her therapy sessions with the murder victim’s minor son, D.P. The first letter to Lt. Karabatsos, pr epared 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 depres sion were noted. Also, some mild developmental delays were evidenced. It is important to realize that [D.P.] has experienced a number of recent psychos ocial stressors. These included the following: Change in residency, death of his mother, and a lleged witnessing of his mother’s death. On the Parent Rati ng 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 maternalNo. 12-3825 McCarley v. Kelly Page 4

grandparents appear to be very concerne d about [D.P.] and his behavior. Also, they were in the process of gr ieving the loss of their daughter. During the clinical interview, [D.P.] initi ally 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 impera tive 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 situa tion, [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 bega n 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 mo ther’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 la st name for this man. During the consultation with the maternal gr andfather, he stated that the mother did know a man by the name of Tim Gr eene 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 que stion, this has had an adverse impact on [D.P.], and he is very confused and f earful concerning the loss of his mother. [D.P.] does need individual psychother apy, and his maternal grandmother -- grandparents, excuse me, need parent couns eling in order to he lp 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 6t h, 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 fe lt 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 struggl e. 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 repor ted that the one -- th at 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 livi ng room, which he could have confused as being the bedroom. When presented with six different photogr aphs, [D.P.] consistently picked a suspect, reporting it was that guy who hit his mother. The diffe rent pictures of this man which he has picked and identified as the alleged murderer were reportedly pictures of the al leged 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 mu rderer went into the mother’s closet and got something. He was unable to iden tify 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 th e 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 or der 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 lette r, 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 inform ation. 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 th at 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. we nt 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 pros ecutor asked Lt. Karabatsos: “So what did youNo. 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 w ho was a child therap ist 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 as ked 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 informati on 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 conc ern was to try to get the inform ation, but that was not the only thing that crossed our mind at the time.”

Lt. Karabatsos also testified on cro ss-examination about his relationship and
communications with Dr. Lord. The lieutenant stat ed that he “would have asked Dr. Lord that anything that [D.P.] would have said during the course of the counsel, duri ng the course of her interviews with him, that she make me aware of th at 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 inve stigation to assist him with identifying the persons responsible for the murder.
The State argues that, even without Dr. Lo rd’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 in to 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 tria l. 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 th e window. Bathroom. Are you out of here. Don’t have no phone. A policema n. 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. Li ghts 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. Pick ed 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 wi ndow with feet. Was up in bed. No. She walked up and see this gun. Police was open his m outh 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. [B rother] 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 testifie d 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 w ith 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 confiscat ed those items as contraband be cause “Mr. McCarley was not related to any law enforcement agency,” and te stified 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 petiti on, this Court reviews th e 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 th e 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 op inion, 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 ha rmless-error analysis doe s not constitute an adjudication of a constitutional claim on the merits—thereby permitting de novo review, rather
than review under the defe rential 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 pur poses 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 constituti onal error is harmless or prejudicial . . . is part and parcel of a mer its adjudication of the is sue.”). 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 cont rary to, or involved an unreasonable of, clearly established Federal law, as de termined by the Supreme Court of the United States; or (2) resulted in a deci sion 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” fede ral 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 differen tly 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 C ourt holdings at the time of the state court’s
decision. Williams , 529 U.S. at 412. We may not employ circ uit precedent “to refine or sharpen a general principle of Supreme Court jurispruden ce 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 lega l principle but then applied it to the facts of the petitioner’s case in an obj ectively unreasonable way. Goodell , 643 F.3d at 495. The Supreme Court has stated that, to constitu te an unreasonable appl ication, “the state cour t’s ruling . . . [must be] so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility fo r fairminded disagreement.” Harrington v. Richter , 562 U.S. 86, 103 (2011). In sum, “[i]f this standard is difficult to me et, that is because it was meant to be. . . . [H]abeas corpus is a ‘guard agains t extreme malfunctions in the state criminal justice systems,’ not a substitute for ordinary error correction th rough appeal.” Id. at 102-03 (quoting
Jackson v. Virginia , 443 U.S. 307, 332 n.5 (1979) (S tevens, J., concurring)).

B.
Because the Ohio Supreme Court denied leav e to appeal, the Ohio Court of Appeals issued the last reasoned opinion addressi ng McCarley’s Sixth Amendment claim:
{¶ 23} McCarley argues that the trial c ourt 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 wa s 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 resu lt 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 thatNo. 12-3825 McCarley v. Kelly Page 10

only testimonial statements are subject to the rigors of the conf rontation 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 possi bility that the eviden ce complained of might have contributed to th e 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 cour t’s reasoning was objectiv ely unreasonable in light of the Supreme Court’s decisions inte rpreting the Sixth Amendment’s Confrontation Clause. The “starting point” for a § 2254 case “is to iden tify the ‘clearly esta blished Federal law, as determined by the Supreme Court of the Unite d 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 pa rt, that: “In all criminal prosecutions, the accused shall enjoy the right . . . to be confront ed with the witnesses against him . . . .” U.S. Const. amend. VI. Incorporated through the Fourteenth Amendmen t, the Confrontation Clause, a “bedrock procedural guarantee,” applie s 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 s hortly after the Revolution, the Crawford Court arrived at an unequivocal conclusion as to what the Confrontation Clause require s with regard to testimonial
evidence: “Where testimonial ev idence is at issue, . . . the Si xth 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 exam ples 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 definition s of “witnesses” and “testimony” for guidance in interpreting the lan guage of the Confrontation Clause itself. Id. at 51. Witnesses are “those who bear testimony. Testimony, in turn, is typically a solemnNo. 12-3825 McCarley v. Kelly Page 11

declaration or affirmation made for the purp ose of establishing or proving some fact.” Id. (quoting 2 N. Webster, An American Dictiona ry of the English Langua ge (1828)) (internal quotation marks and alterations omitted).
The Supreme Court handed down only one opinion further refining the scope of
“testimonial” evidence be tween 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 ongoi ng domestic disturbance. Id. at 817-18. In the companion

case, Hammon v. Indiana , Amy Hammon completed an affidav it 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 exhaus tive classification of all conceivable statements—or even all conceivable statements in response to police interrogation—as either tes timonial or nontestimonial, it suffices to decide the present cases to hold as follows: Statemen ts are nontestimonial when made in the course of police interrogation under circum stances 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 applie s to informal, as well as formal, prior testimony. Id. at 826 (“In any event, we do not think it conceivable that the pr otections of the Confront ation 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 an d 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 decl arant or embedded in the memory (and perhaps notes) of the interrogating o fficer, [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 objectiv ely indicate its primary purpose was to enable police assistance to meet an ongoi ng emergency,” and then reached the opposite conclusion regarding the statements in Amy Ha mmon’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 st atements 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 objec tively, the Court conclude d that the nature of the questions asked was such that the answers given “w ere necessary to be able to resolve the present emergency, rather than simply to learn . . . what had happened in the past.” Id. Finally, the C ourt 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 bear ing witness or testifying because “[n]o ‘witness’ goes into c ourt 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 Hamm on “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 te stimonial and their introdu ction likely violated the
Confrontation Clause. Id. at 834.No. 12-3825 McCarley v. Kelly Page 13

III.
Applying the “rigorous standa rd” set forth in § 2254(d), Desai v. Booker , 732 F.3d 628, 630 (6th Cir. 2013), we must first decide whether the district cour t 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 w ith D.P. because “we determined it was necessary to bring somebody who was a child psychol ogist, possibly, or somebody who was a child therapist in to speak with him, see if they could extract any informa tion from him that he remembered from that evening.” The lieutenant al so 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 Amendm ent 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 Si xth 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 enfo rcement” 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 priv ate 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 preci se—any emergency situation had passed. See id. at 830. The lieutenant unambiguously stated that hi s “main concern” and the “main reason” for D.P.’s sessions with Dr. Lord “was to try to ge t the information” that police personnel could not elicit from D.P.—including the identity of the su spects—so that Lt. Karabatsos “could use it in [his] investigation.” Because “the primary pur pose of the interrogation [wa]s to establish or prove past events poten tially 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 whet her the state court ‘unreasonably’ applied Chapman under the AEDPA and, further, whether the constitu tional 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 verd ict” 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 lo wer 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 itselfNo. 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 an alysis of Confrontation Clau se violations, this Court
utilizes the factors outlin ed by the Supreme Court in Van Arsdall

. Jensen v. Romanowski , 590 F.3d 373, 379 (6th Cir. 2009) (“[W]e assess th e prejudicial impact of constitutional trial
errors under the ‘substantia l 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 factor s include “the importan ce of the witness’ testimony in the prosecution’s case, whether th e 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 ha ve grave doubts as to whether the Sixth Amendment violation at McCarley’s seco nd trial influenced the jury’s decision.
The importance of Dr. Lord’s testimony to the prosecution’s cas e against McCarley
cannot be overstated. The Stat e relied heavily on her letters in both trials, but they acquired greater significance in the second tr ial. In its opinion addressing McCarley’s first direct appeal,
which resulted in the reversal of his initial conv iction, the Ohio Court of Appeals recognized that

the State relied on the contents of the letter throughout its ca se and Dr. Lord’s testimony was a major portion of the Stat e’s evidence against [McCarley]. Moreover, the State specifical ly 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 intr oduced—without a limiting inst ruction—to establish the truth of the matter asserted. Thus, the Stat e’s reliance on the letters was magnified at the second trial because the jury could consider them for th e 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 statem ents during closing arguments. The prosecutor
read all of D.P.’s statements from Dr. Lord’s te stimony in their entirety during his initial closingNo. 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, “bac k 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 specifi cally, “police ball cap.” He said, “police uniform.” He said, “bu ttons,” 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 identif ied the photograph of Willard McCarley.
Because, according to the prosecutor’s own closi ng 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 te stimony provided by three other witnesses—D.P.’s grandmother (Phyllis), Offi cer Breiding and former deputy Balogh.” According to the district court, “t he jury heard similar, if not id entical, 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 cumulati ve. Phyllis’ testimony c onsisted of reciting the notes she had taken of D.P.’s nearly-incohe rent rambling. Her testimony, standing alone, provides few details about th e murder and actually introdu ces 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 asNo. 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 on ly that McCarley, year s 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 overwhelmi ng evidence of McCarley’s guilt.
All of the above testimony paints a clear picture of the crim e, but only when considered in light of Dr. Lord’s testimony about D.P.’s stat ements 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 identif ication, and the State’s case collapses into disjointed pieces. This f actor 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 signif icant corroboration of D.P.’s statements at McCarley’s trial. This factor ther efore 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 oppor tunity at trial to cr oss-examine all of the prosecution’s witnesses save for D.P.

The final Van Arsdall factor we consider is “the ove rall 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 a lmost entirely circumstantial. The only physical evidence, the DNA gathered at th e scene, was inconclusive. Th e DNA tests established that the belt used to murder the victim might have co ntained male DNA from McCarley’s paternal relatives, but this evidence is far from ove rwhelming. 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 include d a conclusive identification of McCarley as the murderer. Even considered together, the te stimony 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 fact or 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 “sub stantial 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 th e prosecution’s case— favor McCarley. Dr. Lord’s testimony was a cr ucially important piece of the prosecution’s evidence because it contained the only eyewit ness identification of McCarley. Her testimony was not cumulative, and the overa ll 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 co rroborating evidence and the extent of cross-examination otherwise permitted—wei gh in favor of the State. These factors that favor the prosecution do not carry as much wei ght as those that favor McCarley. While McCarley had the opportunity to cross-examin e all the other witnesses, that he had no opportunity to cross-examine D.P. was the critic al error in the state- court proceedings. Additionally, the fact that ot her testimony corroborates D.P.’s statements underscores the importance of Dr. Lord’s testimony. Accordingl y, 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 testim onial evidence and the Confrontation Clause violation at McCarley’s second tr ial 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.