                                                                           FILED
                                                              United States Court of Appeals
                                                                      Tenth Circuit
                      UNITED STATES COURT OF APPEALS
                                                                    October 21, 2008
                                TENTH CIRCUIT
                                                                  Elisabeth A. Shumaker
                                                                      Clerk of Court

 CHARLES ALLEN GARRISON,

              Petitioner - Appellant,                     No. 08-1216
       v.                                                (D. Colorado)
 JOE ORTIZ, Executive Director of the       (D.C. No. 1:05-CV-01300-WDM-BNB)
 Colorado Department of Corrections;
 JOHN W. SUTHERS, The Attorney
 General of the State of Colorado,

              Respondents - Appellees.


            ORDER DENYING CERTIFICATE OF APPEALABILITY


Before BRISCOE, MURPHY, and HARTZ, Circuit Judges.


      Charles Allen Garrison was convicted of first-degree murder in Colorado

state court. He filed an application under 28 U.S.C. § 2254, seeking habeas relief

on the ground that the introduction at trial of two out-of-court statements violated

his right to confront the witnesses against him. The United States District Court

for the District of Colorado denied relief and he seeks a certificate of

appealability (COA). See 28 U.S.C. § 2253(c)(1)(A) (requiring COA to pursue an

appeal). Because Mr. Garrison has not "made a substantial showing of the denial

of a constitutional right," id. § 2253(c)(2), we deny his application for a COA and

dismiss the appeal.
      The relevant out-of-court statements admitted at Mr. Garrison’s trial were

made by Brent Pellerin, the victim of the crime. Approximately three weeks

before he was murdered, Pellerin took a series of personal phone calls at his place

of employment. These calls visibly upset Pellerin, and his manager, Richard

Budnik, asked what was wrong. Pellerin replied that a friend from California was

threatening to kill him. This statement was admitted at trial as an excited

utterance. Two weeks later Pellerin was again visibly agitated at work and,

during a cigarette break, told a concerned Budnik that his friend was “coming

here from California to kill [him].” Aplt. App. at 67. When Budnik suggested

that he call the police, Pellerin downplayed the threat, stating that “he doesn’t

mean anything” and that “it is no big deal.” Id. at 175. These statements were

admitted under Colorado’s residual exception to the hearsay rule.

      The Confrontation Clause of the Sixth Amendment, which applies to the

states through its incorporation in the Due Process Clause of the Fourteenth

Amendment, provides that "[i]n all criminal prosecutions, the accused shall enjoy

the right . . . to be confronted with the witnesses against him." U.S. Const.

amend. VI; see Pointer v. Texas, 380 U.S. 400, 403 (1965) (incorporating

Confrontation Clause). In Crawford v. Washington, 541 U.S. 36 (2004), the

Supreme Court held that the Confrontation Clause prohibits the "admission of

testimonial statements of a witness who did not appear at trial unless he was

unavailable to testify, and the defendant had had a prior opportunity for

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cross-examination." Id. at 53–54. Without exhaustively defining “testimonial,”

the Crawford Court noted that testimonial statements typically involve “a solemn

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

51 (brackets and internal quotation marks omitted).

      In Davis v. Washington, 547 U.S. 813 (2006), the Court addressed the

scope of the term “testimonial” in the context of police interrogations. The Court

held that statements are testimonial when made during a police interrogation

whose “primary purpose . . . is to establish or prove past events potentially

relevant to later criminal prosecution.” Id. at 822. Conversely, statements are not

testimonial if made during an interrogation whose “primary purpose . . . is to

enable police assistance to meet an ongoing emergency.” Id.

      The out-of-court statements made by Pellerin are plainly not testimonial.

Pellerin made the statements to explain his mood, not to prove that Mr. Garrison

was, in fact, coming from California to kill him. Indeed, Pellerin stated that

police involvement was unnecessary because the threats were “no big deal”

because the friend did not actually “mean anything.” Aplt. App. at 175; see

Crawford, 541 U.S. at 51 (“testimony” generally seeks to establish “some fact”);

see also Davis, 547 U.S. at 822. Moreover, the statements at issue were made

informally to a person with no role in the enforcement of criminal laws, and thus

bear none of the indicia of “testimony.” As Crawford observed, “An accuser who

makes a formal statement to government officers bears testimony in a sense that a

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person who makes a casual remark to an acquaintance does not.” 541 U.S. at 51.

In this respect Davis was even more explicit, declaring that “formality is indeed

essential to testimonial utterance.” 547 U.S. at 830 n.5. In short, because

Pellerin’s out-of-court statements were made informally to an acquaintance and

did not seek to prove facts relevant to a criminal investigation, they cannot be

deemed testimonial.

      After similarly concluding that Pellerin’s statements were not testimonial,

the district court nonetheless analyzed whether the statements bore sufficient

“guarantees of trustworthiness” under the pre-Crawford Confrontation Clause test

set out in Ohio v. Roberts 448 U.S. 56, 66 (1980). The court relied on our

opinion in United States v. Ramirez, 479 F.3d 1229 (10th Cir. 2007), which held

that although Crawford applies to testimonial statements, nontestimonial

statements are still approached “under the pre-Crawford rubric of Ohio v.

Roberts.” Id. at 1247. Ramirez is not good law on this particular point. In Davis

the Supreme Court held that the Confrontation Clause applies only to testimonial

statements, observing that a “limitation so clearly reflected in the text of the

constitutional provision must fairly be said to mark out not merely its ‘core,’ but

its perimeter.” 547 U.S. at 824. Thus, it is clear that the trustworthiness test

established in Roberts has been overruled. See Whorton v. Bockting, 127 S. Ct.

1173, 1183 (2007); see also United States v. Townley, 472 F.3d 1267, 1273 (10th

Cir. 2007) (noting that Crawford “abrogated” Roberts). Accordingly, we do not

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need to address whether the statements at issue bore sufficient guarantees of

trustworthiness.

      Because the out-of-court statements admitted in Mr. Garrison’s trial were

nontestimonial, he has not made a “substantial showing” that his constitutional

right to confront the witnesses against him was violated. See 28 U.S.C.

§ 2253(c)(2). We therefore DENY Mr. Garrison’s application for a COA and

DISMISS this appeal.

                                      ENTERED FOR THE COURT


                                      Harris L Hartz
                                      Circuit Judge




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