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Hobdy v. Raemisch

United States Court of Appeals, Tenth Circuit

February 19, 2019

CHRISTOPHER HOBDY, Petitioner - Appellee,
v.
RICK RAEMISCH, Executive Director, Colorado Department of Corrections; PHIL WEISER, Attorney General for State of Colorado, [*] Respondents - Appellants.

          Appeal from the United States District Court for the District of Colorado (D.C. No. 1:15-CV-01745-RPM)

          Lisa K. Michaels, Assistant Attorney General (Phil Weiser, Attorney General, with her on the briefs), Criminal Appeals Section, Office of the Attorney General for the State of Colorado, Denver, Colorado, appearing for Appellants.

          Kathleen A. Lord, Lord Law Firm, LLC, Denver, Colorado, appearing for Appellee.

          Before BRISCOE, HOLMES, and McHUGH, Circuit Judges.

          BRISCOE, CIRCUIT JUDGE.

         Petitioner Christopher Hobdy, a Colorado state prisoner serving a lengthy sentence for first degree assault and aggravated robbery, filed an application for federal habeas relief pursuant to 28 U.S.C. § 2254. The district court granted Hobdy's application and ordered the State of Colorado to retry him within ninety days. Respondents Rick Raemisch, the Executive Director of the Colorado Department of Corrections, and Phil Weiser, the Attorney General for the State of Colorado, now appeal from the district court's decision. Exercising jurisdiction pursuant to 28 U.S.C. § 1291, we reverse the decision of the district court and remand with directions to enter judgment in favor of respondents.

         I The underlying facts of Hobdy's case

         The Colorado Court of Appeals (CCA), in addressing Hobdy's direct appeal, summarized the underlying facts of Hobdy's case:

The criminal charges against [Hobdy] arose from an assault on the victim[, Jerry Williams, ] outside a convenience store [on May 15, 1997]. The victim was a police officer [with the City of Aurora, Colorado, ] who had a terminal illness and was living in a hospice at the time of the assault.
The victim had arrived at the store late at night [shortly after 1 a.m.] to purchase a few items. After leaving the store, he used the outside payphone. While the victim was on the phone, [Hobdy], who had made a purchase at the store shortly after the victim had left the store, approached the victim and asked him for a quarter. The victim said he did not have a quarter, and [Hobdy] then went back into the store.
After making his phone call, the victim began walking back to the hospice. He heard footsteps behind him and saw that [Hobdy] was following him. [Hobdy] uttered a racial slur [i.e., "nigger"] and told the victim, "I'm going to get you." He then hit the victim with a shovel.
The victim fell to the ground, and his possessions fell out of his pocket. [Hobdy] then picked up the items and ran away.
The victim then went back into the store and told the clerk to call 911. Believing that his assailant would be depicted on the store's video surveillance tape, the victim asked the clerk to retrieve the tape. He provided police a description of his assailant.
The following day, the police showed [the victim] three still photographs they had made of [Hobdy] from the surveillance video tape. They did not know his identity at that time. From the photos, the victim identified [Hobdy] as his assailant.

State v. Hobdy, No. 98CA1361 at 1-2 (Colo.App. Mar. 30, 2000) (Hobdy I), available at Aplt. App., Vol. 2 at 13.

         The victim, Williams, gave the police an audiotaped interview the day after the attack.

         Hobdy's state trial proceedings

         On May 22, 1997, Hobdy was charged by information in Arapahoe County District Court with two counts of attempted first degree murder (one count alleged "after deliberation" and the second count alleged "felony murder"), one count of first degree assault, and one count of aggravated robbery. Aplt. App., Vol. 3 at 24.

         On the same day the information was filed, the prosecution filed a motion seeking permission to depose Williams who, the motion noted, was "residing in a hospice and . . . dying of cancer." Id. at 25. The state trial court granted the motion and the deposition of Williams was taken in May and June of 1997. Williams died in August of 1997.

         The case was tried to a jury on March 9-20, 1998. The prosecution's evidence included, among other things, the audiotaped interview that Williams gave to police the day after the attack and the transcript of Williams' deposition, which was read to the jury.

         Hobdy's "defense [at trial] was misidentification." Id., Vol. 2 at 168. Hobdy admitted being in the convenience store that evening, but he denied attacking Williams. According to Hobdy, he had been drinking at a nearby bar, left briefly to go to the convenience store, and then returned to the bar to meet his friends. "The thrust of [Hobdy's] defense was that due to the substantial pain medication the victim was taking at the time, any identification or testimony on his part was not credible." Id., Vol. 1 at 195. "The victim was established to be regularly taking Morphine, Haldol, Ativan, Robaxin, Dilantin, Benadryl, Decadron, and Reglan." Id.

         "To rebut this defense, the [State] called two medical doctors," one of whom "treated the victim at the emergency room after the attack, and the other [of whom] was the victim's regular oncologist." Id. "Together, they opined that the victim's mental faculties were not affected by the medications the victim was taking at the time of the attack such that they would impair his ability to make a positive identification." Id. at 196. Hobdy "did not offer his own medical expert to refute the testimony of the two doctors called by the [State]." Id. at 169. But Hobdy's "[t]rial counsel did cross examine the witnesses, based on medical records and drug information, and also elicited specific examples of the victim suffering from hallucinations, confusion, drowsiness, and other impairments related to his medications." Id.

         The jury deliberations began later in the day on March 18, 1998, and continued through the next two days, March 19-20, 1998. During those deliberations, the jury sent several notes to the state trial court. To begin with, at approximately 11:35 a.m. on the first full day of deliberations-March 19, 1998-the jury sent a note to the trial court asking for permission to listen to the 911 tape recording and to watch the 7-11 surveillance video. The state trial court granted both of those requests.

         Later that same day, at approximately 3:37 p.m., the jury sent a note to the state trial court asking two questions. The first question stated: "May we look at Jerry William's [sic] deposition testimony?" Id., Vol. 4 at 147, 152-53. The second question said:

We are struggling with coming to agreement with the creditability [sic] of Jerry Williams' testimony. We have been debating this issue for most of the day. Since this testimony is key to coming to a concensus [sic] we believe that coming to a verdict will be difficult. Convictions remain firm on both sides. Due to evidence provided and its interpretation by individual jurors we are concerned that a verdict may not be attainable.

Id. at 149, 153.

         The district court responded to the jury's first question with a written answer stating, "you may request in writing that the entire Jerry Williams' depositions be read to you in Court as was done during the trial." Id. at 160. After receiving that written answer, the jury contacted the court "and indicated they [we]re waiting for an answer on the second question." Id. at 160-61. The state trial court then responded to the jury's second question by sending them back a written note stating: "The court must ask you whether you are making any progress towards a unanimous verdict or are deadlocked?" Id. at 149, 163. The jury responded with one word: "Deadlocked." Id. at 149. After receiving this response, the state trial court read the modified Allen instruction to the jury and sent them back to deliberate. Id. at 164-65.

         Later that afternoon, the jury sent a note to the trial court outlining its "[p]lan for" the next day. Id. at 151. The note stated that the plan was to "1) hear taped interview of Jerry Williams" and "2) hear all three depositions of Jerry Williams read if possible by impartial parties." Id. The state trial court responded that it "w[ould] attempt to accommodate [their] request" the following day, March 20, 1998. Id.

         At the outset of the following day, Friday, March 20, 1998, the state trial court allowed the jury to first "hear the taped interview of Jerry Williams." Id. at 183. The state trial court then arranged for several people to read Williams' deposition transcripts. After that reading was complete, the jury was sent back to deliberate.

         At some point that afternoon, the jury sent out a note asking, "Can we have the large sign that was in the closing arguments re: Reasonable doubt? Elements of each crime?" Id. at 203. The state trial court responded: "The information requested is contained in the instructions of the court - if you need additional copies of some or all the instructions please specify by number." Id.

         The jury then sent out another note stating, "We want the testimony of the person that was on the stand when they interjected the tape of Chris Hobdy & also WANT, NeeD [sic] to hear the tape of defendant. Thank you." Id. at 204 (emphasis in original). The state trial court responded to this note by stating:

The court reporter who reported Detective Days [sic] testimony while a portion of Chris Hodby [sic] tape was played is not here and that testimony is not available until Monday. The only request that the court can grant today is to play that portion of Chris Hobdy's tape that was played for you during the trial.

Id. at 205. The jury responded: "We would like to listen to the taped interview today." Id. The state trial court granted that request.

         According to the record, the jury also, at some unknown point in the deliberations, wrote a note to the court that said:

Deliberations have broken down. We find ourselves attacking each other not allowing the [sic] us to move toward a verdict. We do not know where to go from here. We have examined all the evidence given to us and still are deadlocked. We don't know what else to look at.

Id., Vol. 2 at 8. It is unclear if this "attacking each other" note was in fact delivered by the jury to the state trial court and, if so, when that occurred.

         At approximately 4:50 p.m. on March 20, 1998, the state trial court spoke to the jurors about recessing for the weekend and reconvening the following Monday. Id., Vol. 4 at 217-18. The jury "indicated they'd like some more time," so the state trial court granted that request. Id. at 218. Later that day-it is unclear from the record precisely what time-the jury returned with a verdict. The jury found Hobdy not guilty of the two attempted murder charges. But it convicted him of first degree assault and aggravated robbery. The jury also found that Hobdy "did use or possess and threaten the use of a deadly weapon during the commission of the crime or during the immediate flight therefrom." Id. at 220.

         The state trial court sentenced Hobdy to consecutive terms of imprisonment of twenty-eight years' and thirty years' imprisonment for the two counts of conviction, resulting in an aggregate sentence of fifty-eight years.

         Hobdy's direct appeal

         Hobdy filed a direct appeal, asserting five general propositions of error. The CCA affirmed Hobdy's convictions in an unpublished opinion issued on March 30, 2000. Hobdy I, No. 98CA1361 at 15. Hobdy filed a petition for writ of certiorari with the Colorado Supreme Court, but that was denied on September 5, 2000. There is no indication in the record that Hobdy filed a petition for writ of certiorari with the United States Supreme Court.

         Hobdy's Rule 35(b) motion for ...


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