* This order and judgment is not binding precedent, e xcept under the

doctrines of law of the case, res judicata, and col lateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3. 

## F I L E D United States Court of Appeals Tenth Circuit 

### DEC 11 2002 

### PATRICK FISHER Clerk UNITED STATES COURT OF APPEALS
FOR THE TENTH CIRCUIT

BOBBY YOUNG,

Petitioner - Appellant,

v. DAVID R. MCKUNE and the ATTORNEY GENERAL OF THE STATE OF KANSAS,

Respondents - Appellees. No. 02-3098 D.C. No. 99-CV-3049-DES (D. Kansas)

ORDER AND JUDGMENT *

Before SEYMOUR , EBEL , and O’BRIEN , Circuit Judges.

After examining the briefs and appellate record, th is panel has determined unanimously to grant the parties’ request for a dec ision on the briefs without oral argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). The case is therefore ordered submitted without oral argument.-2-

Bobby Young is appealing the district court’s denia l of his petition for a writ of habeas corpus under 28 U.S.C. § 2254. We a ffirm with respect to Mr. Young’s Sixth Amendment claim, and we deny his requ est for a certificate of appealability (COA) on his due process and ineffect ive assistance claims. Mr. Young was convicted of first degree murder for the shooting death of his girlfriend, Carol Dorsey. His conviction was affirmed on direct appeal. State v. Young , 852 P.2d 510 (Kan. 1993). His state post-convict ions claims were denied. Mr. Young then filed this § 2254 petition, which the district court denied. On appeal, Mr. Young asserts the following claims: (1) his Sixth Amendment confrontation rights were violated by the admissionof hearsay testimony from witnesses Hardin and Brooks concerning his physical abuse of Dorsey; (2) he was deprived of due process as a result of the trial co urt’s failure to instruct the jury regarding his accident defense and the court’s impr oper reasonable doubt instruction; and (3) he received ineffective assist ance from his trial and appellate counsel with respect to the accident defense. Under § 2254(d), Mr. Young is not entitled to habea s relief with respect to any claim adjudicated on the merits in the state co urts unless the adjudication of the claim (1) resulted in a decision that was contrary to, o r involved an unreasonable application of, clearly established Fe deral law, as determined by the Supreme Court of the United St ates; or-3-

(2) resulted in a decision that was based on an un reasonable determination of the facts in light of the evidence presented in the State court proceeding. 28 U.S.C. § 2254(d). However, “[i]f the claim was not heard on the merits by the state courts, and the federal district court made i ts own determination in the first instance, we review the district court’s conclusion s of law de novo and its findings of fact, if any, for clear error.” Paxton v. Ward , 199 F.3d 1197, 1204 (10th Cir. 1999) (quotation omitted). The Kansas Supreme Court did not address the merits of Mr. Young’s Sixth Amendment claim as the court’s analysis of his chal lenge to the hearsay testimony of witnesses Hardin and Brooks was based solely on Kansas law. See Young , 852 P.2d at 514-16. Nonetheless, to be entitled to def erential review under § 2254(d)(1), it is not necessary for the state cou rt to specifically cite to the controlling decisions of the U.S. Supreme Court, an d our inquiry must focus instead on whether the reasoning or the result of the state-court decision contradicts controlling Supreme Court precedent. See Early v. Packer , 123 S. Ct. 362, 365 (2002). Brooks is Dorsey’s sister, and Hardin was an acquai ntance of Dorsey. Mr. Young claims his confrontation rights were violatedby the admission of Brooks’ testimony that Dorsey said approximately four month s before the shooting: “Sis, I’m afraid of him and, Sis, I think–I think he’s go ing to kill me.” R., Vol. II,-4-

Trial Tr. at 666. Similarly, Mr. Young claims his confrontation rights were violated by the admission of Hardin’s testimony that Dorsey told her approximately three days before the shooting that “ she was afraid to leave because he would just come there where she was” andthat she was afraid of him “[b]ecause he hit her, he hit her and kicked her, s lapped her, you know, whatever; he just, you know, constantly abused her.” Id. at 736. The admission of hearsay evidence does not violate the Confrontation Clause where the declarant is unavailable at trial and the declarant’s statement is supported by “adequate indicia of reliability.” Idaho v. Wright , 497 U.S. 805, 815 (1990) (quotation omitted). Moreover, “[r]eliabili ty can be inferred without more in a case where the evidence falls within a firmly rooted hearsay exception.” Id. (quotation omitted). Even if the challenged testim ony does not fall within a firmly established hearsay exception or is not othe rwise sufficiently reliable, our inquiry does not end because “[h]armless error anal ysis applies to Confrontation Clause cases.” Jones v. Gibson , 206 F.3d 946, 957 (10th Cir.), cert. denied , 531 U.S. 998 (2000). Consequently, habeas relief will be granted only when “the constitutional error had substantial and injurious effect or influence on the jury’s verdict.” Herrera v. Lemaster , 301 F.3d 1192, 1197 (10th Cir. 2002) (en banc) (citations omitted).1 To the extent the testimony of Brooks and Hardin re fers to other crimes or

wrongs, we note the trial court instructed the juryit was to consider the testimony “solely for the purpose of proving the defendant’s motive, intent, or absence of mistake or accident.” See R., Vol. II, Trial Tr. at 655, 940. We see no constitutional error here in the admission of the testimony for this purpose. Cf. Fed. R. Evid. 404(b) (evidence of other crimes or w rongs admissible to prove motive, intent, or absence of mistake or accident). -5- The district court concluded that the hearsay state ments here were admissible under the “state of mind” exception to the hearsay rule, and that the statements were sufficiently reliable in light of the “considerable evidence at trial that petitioner was physically abusive to Dorsey an d that he told a number of persons of his thoughts and motives for killing her .” R., Vol. I, Doc. 22, at 10. Alternatively, the district court concluded that, “ even assuming the statements attributed to Dorsey were inadmissible, the court i s persuaded that any error was harmless in light of the considerable admissible ev idence of petitioner’s statements prior to the shooting and eyewitness tes timony of the physical abuse Dorsey suffered.” Id. at 11. In addition to that evidence, we also not e that Mr. Young admitted at trial that he had physically abus ed Dorsey and told other persons he was going to kill her. 1 Id. , Vol. II, Trial Tr. at 863, 896-98. We agree with the district court’s constitutional analysis, which supports our conclusion that neither the reasoning nor the result of the Kansas Supreme Court’s decision contradicts controlling Supreme Court precedent. W e therefore defer to its-6-

decision pursuant to § 2254(d)(1) and affirm the de nial of habeas relief on Mr. Young’s Sixth Amendment claim. To be entitled to a COA on his due process and inef fective assistance claims, Mr. Young must make a “substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Un der this standard, he “must demonstrate that reasonable jurists would find the district court’s assessment of the constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484 (2000). The trial court instructed the jury on the offenses of first and second degree murder, and voluntary and involuntary manslaughter. Mr. Young’s primary defense was that the shooting was an accident, and he claims his due process rights were violated because the trial court failedto specifically instruct the jury that he was not guilty of any crime if it concluded the shooting was an accident. He also claims his trial counsel was ineffective infailing to request a jury instruction regarding his accident defense, and that his appellate counsel was ineffective in failing to raise these errors on dir ect appeal. We use a highly deferential standard of review to d etermine in a habeas proceeding whether a state trial court erred in ref using to give a defense instruction. Tyler v. Nelson , 163 F.3d 1222, 1227 (10th Cir. 1999) (such errors not reviewable unless so fundamentally unfair as to deprive petitioner of fair trial-7-

and due process of law) (quotations and citations o mitted). Having carefully reviewed the trial court record, we conclude Mr. Yo ung has failed to make a substantial showing that he was deprived of a fair trial due to the trial court’s failure to specifically instruct the jury regarding his accident defense. Mr. Young testified that he did not intend to kill Dorsey, an d his trial counsel argued extensively in his opening statement and closing ar gument that the shooting was accidental and Mr. Young was therefore not guilty o f the principal charge of first degree murder or of any the lesser included offense s. The jury was instructed it was required to find that Mr. Young intentionally k illed Dorsey in order to convict him of either first degree murder, second d egree murder, or voluntary manslaughter, and it was further instructed that th e term “intentionally” means “conduct that is purposeful and willful and not accidental .” R., Vol. II, Trial Tr. at 944 (emphasis added). The jury was also instruc ted it could find Mr. Young guilty of the lesser included offense of involuntary manslaughter if it found that he “unintentionally” killed Dorsey. Id. at 943. The jury unequivocally rejected Mr. Young’s accident defense by finding him guilty of first degree murder. Because there is no merit to Mr. Young’s claim thathis due process rights were violated as a result of the trial court’s failure t o instruct the jury regarding his accident defense, Mr. Young “cannot claim prejudice from his attorney[s’] failure to raise [the claim] at trial or on direct state appeal.” Dennis v. Poppel , 222 F.3d-8-

1245, 1250 (10th Cir. 2000), cert. denied , 122 S.Ct. 199 (2001). Mr. Young has thus failed to make a substantial showing of the de nial of a constitutional right with respect to his ineffective assistance claims. Finally, Mr. Young claims the reasonable doubt instruction was constitutionally deficient because it “contained la nguage which may have confused the jury.” Aplt. Br. at 11. We disagree. The trial court instructed the jury that the state had the burden of proving Mr. Y oung’s guilt and that “[i]f you have no reasonable doubt as to the truth of any of the claims made by the state, you should find the defendant guilty. If you have reasonable doubt as to any of the claims made by the state, you should find the d efendant not guilty.” R., Vol. II, Trial Tr. at 941. The instruction adequately i nformed the jury of the constitutional requirement that Mr. Young’s guilt b e proven beyond a reasonable doubt. See Victor v. Nebraska , 511 U.S. 1, 5 (1994) (“. . . Constitution does not require that any particular form of words be us ed in advising the jury of the government’s burden of proof.”). We AFFIRM the district court’s denial of habeas rel ief on petitioner’s Sixth Amendment claim. We DENY petitioner’s reques t for a certificate of-9-

appealability on his due process and ineffective as sistance of trial and appellate counsel claims, and we dismiss that portion of this appeal.

Entered for the Court
Stephanie K. Seymour Circuit Judge