Opinion
Case No. CV 03-8844-DDP (MLG).
August 4, 2006
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
I. Background A. Facts Of The Offenses
The facts are taken from the opinion of the California Court of Appeal in People v. Johnson and Canady, Case Nos. B151097, B153295, the clerk's transcript ("CT") and the reporter's transcript ("RT").
This is a petition for writ of habeas corpus brought by a state prisoner pursuant to 28 U.S.C. § 2254. Petitioner was charged with various crimes arising from three separate shooting incidents. The first incident involved the murder of Robert Swain. Petitioner was individually charged and convicted of the first degree murder of Swain (Count 1). Petitioner does not challenge the Swain murder conviction in these proceedings. The second incident involved the murder of Danielle Decatur and attempted murders of James Foster, Dumar Fisher, and Falisha Decatur. Petitioner, along with co-defendants Curtis Canady and Ronald Conley, were charged with these crimes (Counts 2, 3, 4, 5). The jury convicted Petitioner and co-defendant Canady of the crimes charged. The jury was unable to reach a verdict as to co-defendant Conley. The third incident involved the robbery and murder of Andre Ellsworth. Petitioner and co-defendant Canady were charged with the Ellsworth murder and robbery (Count 6, 7), but the jury found Petitioner not guilty and was unable to reach a decision as to Canady. Thus, Petitioner's claims in these proceedings pertain to the judgments arising from the murder of Danielle Decatur and attempted murders of James Foster, Dumar Fisher, and Falisha Decatur (Counts 2, 3, 4, 5).
1. DeCatur Murder and Attempted Murders
Petitioner Taray V. Johnson was a member of the Playboy Hustler Crips ("Playboy gang"). The Playboy gang is a rival of the Fifty-Ninth Street Hoover Crips ("Hoover gang"). On the morning of July 29, 1998, Petitioner and co-defendants Canaday and Conley, were riding in a stolen car in Hoover gang territory. They were looking for Dumar Fisher, a Hoover gang member. Petitioner and his co-defendants found Fisher in a parked car with fellow Hoover gang members James Foster and Danielle DeCatur. Danielle Decatur's sister, Falisha DeCatur, was also in the car.
Canady was a member of the Playboy gang. (Answer to Petition for Writ of Habeas Corpus ("Answer"), Ex. B at 83). Conley was a member of an affiliated gang, the Playboy Hustlers Styles gang. (Answer, Ex. B at 84).
After passing Fisher's car once, Petitioner, Johnson, and Conley returned, and stopped along side Fisher's car. Someone said, "This is for you, Dumar." Petitioner and his co-defendants then opened fire on the occupants of Fisher's car and drove away. Danielle DeCatur was shot and died of her wounds. Foster was shot in the arm. Falisha DeCatur incurred injuries to her arm from shattered glass.
After the shooting, Petitioner, Canady and Conley returned to the apartment of Canady's then girlfriend, Shonta Whitten, where they changed their clothes. When Whitten later learned of the DeCatur murder, she confronted Petitioner and his co-defendants. They admitted they had killed Danielle DeCatur, and explained that they had intended to kill one of her male companions. Months later, Whitten overheard Petitioner, Canady and Conley discussing the murder. Whitten heard Canady make statements admitting their involvement. Petitioner did not deny or contradict Canady's statements. Instead, Petitioner ordered Canady to stop telling Whitten everything. Whitten eventually made an anonymous telephone call to police in which she identified Petitioner, Canady and Conley as the perpetrators in the Decatur shooting and in other crimes.
When interviewed by police, James Foster identified Petitioner and Canady from photographic displays. (RT at 1087, 1090). Foster knew both Petitioner and Canady because he had played basketball with Canady and had seen Petitioner playing basketball. Foster told police that Canady had been the shooter and that Petitioner was also in the car. (RT at 1087, 1090).
After presenting a defense alleging misidentification, Petitioner was convicted of two counts of first degree murder (Cal. Penal Code § 187) and three counts of premeditated and deliberated attempted murder (Cal. Penal Code §§ 187(a)/664). Special circumstance allegations that Petitioner committed multiple murders (Cal. Penal Code § 190.2(a)(3) and a drive-by shooting (Cal. Penal Code § 190.2(a) (21)) were also found to be true. In all counts in which he was convicted, the jury also found that Petitioner personally and intentionally used and discharged a firearm. (Cal. Penal Code §§ 12022.5(a)(1), 12022.53(b), 1203.06(a)(1), 12022.53(c)). In Counts 1, 2, and 3, the jury found that Petitioner's discharge of a firearm caused death or great bodily injury. (Cal. Penal Code § 12022.53(d)). The jury further found true great bodily injury enhancements in Counts 3 and 4 (Cal. Penal Code § 12022.7(a)), gang enhancements, and "principal armed" enhancements in Counts 2, 3, 4, and 5 (Cal. Penal Code §§ 186.22(b) (1), 12022(a) (1)). (CT at 266-73).
Petitioner was sentenced to two terms of life in prison without the possibility of parole (Counts 1 and 2), plus three life terms with the possibility of parole (Counts 3, 4, and 5), and additional terms totaling 123 years to life. (CT at 293-98).
On June 24, 2002, the California Court of Appeal modified Petitioner's sentence, but otherwise affirmed Petitioner's conviction. (Answer to Petition for Writ of Habeas Corpus ("Answer"), Ex. B). On September 11, 2002, the California Supreme Court denied direct review. (Answer, Ex. D). The United States Supreme Court denied a petition for writ of certiorari on February 23, 2003. (Answer, Ex. F).
On December 4, 2003, Petitioner filed a Petition for Writ of Habeas Corpus ("Petition") with this Court. On March 2, 2004, Respondent filed an Answer, but Petitioner did not file a Traverse. On July 16, 2004, the Court filed its Report and Recommendation. Petitioner filed objections to the Report and Recommendation on September 24, 2004.
On December 2, 2004, prior to judgment being entered, Petitioner filed a motion to amend his Petition to add new claims that he had recently exhausted in the California state courts. (Amended Petition; Supplemental Answer, Ex. A, B). Respondent opposed the motion. On February 23, 2005, this Court granted the motion to amend and vacated the Report and Recommendation. Respondent filed a Supplemental Answer and Petitioner filed a Traverse.
On February 15, 2006, this Court ordered a stay of proceedings pending receipt of all pleadings in the related matter of Curtis Canady v. D.L. Runnels, Warden, Case No. CV 05-6551-DDP (MLG). On June 26, 2006, this Court lifted the stay. This matter is now deemed to be under submission and ready for decision.
Petitioner asserts the following claims for relief:
Ground One: Co-defendant Canady's statements that were made in Petitioner's presence were improperly admitted against Petitioner as adoptive admissions.
Ground Two: The trial court erred by failing to conduct a post-trial Marsden hearing.
Ground Three: The minimum 15-year parole eligibility period on Count Five for gang-related premeditated attempted murder (Cal. Penal Code § 186.22(b) (5)) should not have been "stacked upon" the 20-year enhancement for personally discharging a firearm (Cal. Penal Code § 12022.53(c)).
Ground Four: Trial counsel provided ineffective assistance by failing to investigate exculpatory fingerprint evidence.
Ground Five: The prosecutor violated due process by arguing to the jury that no fingerprints had been found in the shooters' car.
Ground Six: The prosecutor violated due process by failing to disclose exculpatory fingerprint evidence to the defense.
Ground Seven: Petitioner was denied his right to an impartial jury due to the presence of a biased juror on the jury.
Ground Eight: Trial counsel provided ineffective assistance by failing to request that the biased juror be removed from the jury.
Ground Nine: The trial court violated due process by improperly admitting gang-membership evidence, which was cumulative and prejudicial.
Ground Ten: Appellate counsel provided ineffective assistance by failing to raise the issues set forth in the Amended Petition on appeal.II. Standard of Review
The new claims raised in the Amended Petition will be designated as Grounds Four through Ten.
Under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), a federal court may grant a writ of habeas corpus to a state prisoner with respect to a claim that was adjudicated on the merits in state court only if the state courts' decisions were "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States" or if the ruling was "based on an unreasonable determination of the facts in light of the evidence presented" in the state courts.
A state court decision is "contrary to" clearly established federal law if the state court failed to apply the correct controlling authority from the Supreme Court. Williams v. Taylor, 529 U.S. 362, 405-06 (2000). The Supreme Court explains that a state court decision is "contrary to" clearly established federal law if the state court "applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Early v. Packer, 537 U.S. 3, 8 (2002) (quoting Williams, 529 U.S. at 405-06). A state court need not cite or even be aware of Supreme Court precedents, "so long as neither the reasoning nor the result of the state-court decision contradicts them." Mitchell v. Esparza, 540 U.S. 12, 16 (2003) (citing Packer, 537 U.S. at 7).
A state court decision involves an "unreasonable application of" clearly established federal law if the state court identifies the correct governing legal principle from the decisions of the Supreme Court, but unreasonably applies that principle to the facts of the case. Williams, 529 U.S. at 407-08, 413. Under this standard, a habeas court may not issue the writ simply because that court concludes "in its independent judgment" that the state court decision is incorrect or erroneous. Williams, 529 U.S. at 410, 412; Woodford v. Visciotti, 537 U.S. 19, 24-25 (2002). The reviewing court must find that the state court's application of clearly established law was objectively unreasonable. Williams, 529 U.S. at 409.
A state court decision is based on an unreasonable determination of the facts if "an appellate panel, applying the normal standards of appellate review, could not reasonably conclude that the finding[s] [are] supported by the record." See Taylor v. Maddox, 366 F.3d 992, 1000 (9th Cir.), cert. denied, 125 S.Ct. 809 (2004). Once a state court's fact-finding process survives an "unreasonable determination" challenge, the state court's findings of fact are presumed to be correct. Id.; 28 U.S.C. § 2254(e) (1). To overcome this presumption, a habeas petitioner must show by clear and convincing evidence that the state court's factual findings were in error. See 28 U.S.C. § 2254(e) (1); Taylor, 366 F.3d at 1000 ("State-court fact-finding may be overturned based on new evidence presented for the first time in federal court only if such new evidence amounts to clear and convincing proof that the state-court finding is in error").
The claims raised in the instant Petition and Amended Petition were raised before the California Supreme Court, but that court did not issue a written opinion. (Answer, Ex. D, Supp. Answer Ex B). Nevertheless, "[w]here there has been one reasoned state judgment rejecting a federal claim, [federal courts are to presume] later unexplained orders upholding that judgment or rejecting the same claim rest upon the same ground." Ylst v. Nunnemaker, 501 U.S. 797, 803 (1991). The California Court of Appeal rejected claims one, two and three in a written decision. (Answer, Ex. B). Thus, with respect to those claims, this Court will consider the reasoning of the California Court of Appeal to determine whether the California Supreme Court's decision is contrary to, or an unreasonable application of, federal law. Because there is no reasoned decision addressing the merits of the claims raised in Grounds four through ten, this Court must perform an independent review of the record to determine whether the California Supreme Court's decision was objectively unreasonable under controlling federal law. Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003); see Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). Although the record is reviewed independently, a federal court nevertheless defers to the state court's ultimate decision. Himes, 336 F.3d at 853 ("The `independent review' of the record required when a state court supplies no ratio decidendi must be carefully distinguished from `independent review' of the constitutional question . . ."); Pirtle v. Morgan, 313 F.3d 1160, 1167 (9th Cir. 2002).
III. Discussion and Analysis
A. Ground One: Confrontation Clause/Bruton Claim
Petitioner claims that his response to an out of court statement made by co-defendant Canady to Whitten was improperly construed as an adoptive admission against him.
In early November, about four months after the DeCatur shooting, Shonta Whitten placed an anonymous call to the Los Angeles Police Department ("LAPD") in which she incriminated Petitioner, Canady and Conley in the DeCatur shooting and in other crimes. (CT at 119; RT at 2119; RT at 2083, 2085). In that call, Whitten told the police that Canady did not mean to shoot "the girl," and meant "to shoot the guy." (RT at 2087, 2090).
On December 8, 1998, Hawthorne Police Department Sergeant Greg Chidley located Whitten and interviewed her at her apartment. (RT at 2082-2083). During that interview, Whitten confirmed the substance of her earlier anonymous report. (RT at 2092-2094). She also told Sgt. Chidley that after learning of Danielle DeCatur's murder, she confronted Canady and Petitioner. She stated that they admitted killing Danielle, but claimed that they did not mean to, and had intended to kill a man instead. (RT at 2090-2091). Whitten said she was telling Sgt. Chidley "all this" because "[Canady] and [Petitioner] were out of control and that they were just killing a whole bunch of people and they needed to be stopped." (RT at 2092).
Later that day, two Los Angeles Police Department detectives interviewed Whitten. (RT at 2096). The detectives videotaped and audiotaped the interview without Whitten's knowledge. During the interview, Whitten said that a couple of days before she made the anonymous call, Canady had told her, in the presence of Petitioner, that he killed "that girl" but "meant to kill the guy she was with," and that Petitioner and Conley were with him. (CT at 121, 131). Canady told her that "they went down the street and the girl was in the car on the way to school. There was a girl in the back seat and the driver was a man." (CT at 120-122). Whitten told the officers that "[Petitioner] got mad and said that I know too much. He said `Why are you telling her everything? She's gonna turn around and tell everybody.'" (CT at 120). Whitten stated that "[t]hey walked. None of them have a car." (CT at 125).
Whitten testified at trial, recanting or completely denying having made the statements incriminating Petitioner and Canady. (RT at 1952-81, 1984, 1995-2042, 2044-2055, 2057-2076). Over Petitioner's objections, certain of Whitten's statements to the law enforcement officers were admitted through the videotaped interview, while others were recounted in the testimony of the law enforcement officers who questioned her.
1. Canady's Admission to Whitten
At trial, the jury was allowed to consider whether Canady's statement to Whitten that "he killed the girl" and that Petitioner and Conley were with him (implying that they were involved in the shootings) was adopted by Petitioner based on Whitten's statements that Petitioner was present when Canady made this confession, "got mad and said that I [Whitten] knew too much" and added "Why are you telling her everything? She's gonna turn around and tell everybody." (CT at 120-122).
The California Court of Appeal found that it was reasonable to infer that Petitioner adopted Canady's admission. (Answer, Ex. B at 87-88); see California Evidentiary Code § 1221. In particular, the Court of Appeal rejected Petitioner's contention that his reply referred only to Canady's violation of the "gangland code of secrecy:"
Section 1221 provides that "[e]vidence of a statement offered against a party is not made inadmissible by the hearsay rule if the statement is one of which the party, with knowledge of the content thereof, has by words or other conduct manifested his adoption or his belief in its truth." Under prevailing California Supreme Court authority, "[i]f a person is accused of having committed a crime, under circumstances which fairly afford him an opportunity to hear, understand, and to reply, and which do not lend themselves to an inference that he was relying on the right of silence guaranteed by the Fifth Amendment to the United States Constitution, and he fails to speak, or he makes an evasive or equivocal reply, both the accusatory statement and the fact of silence or equivocation may be offered as an implied or adoptive admission of guilt." People v. Edelbacher, 47 Cal.3d 983, 1101 (1989), quoting People v. Preston, 9 Cal.3d 308, 313-314 (1973).
[Petitioner] asked defendant Canady why he was telling Whitten `everything,' not why he was telling Whitten lies. Defendant Canady had just implicated [Petitioner] in a murder in front of a person [Petitioner] considered untrustworthy. The circumstances naturally called for a reply, yet [Petitioner] failed to deny the substance of the charge. Minimally, he was silent as to the merits of the charge; inferentially, his outburst that defendant Canady was telling Whitten `everything' acknowledged the truth of the information defendant Canady was relaying. In either case, there is a reasonable basis for an inference [Petitioner] adopted defendant Canady's admission.
(Answer, Ex. B at 87-88).
Petitioner contends that the Court of Appeal's determination violated his Sixth Amendment rights under Bruton v. United States, 391 U.S. 123 (1968) and People v. Aranda, 63 Cal.2d 518 (1965), "in that a nontestifying co-defendant (Canady) implicated [Petitioner] in a confession." (Answer, Ex. A at 24; Ex. C at 118). Petitioner further asserts that "[i]t was only by virtue of the [state] court's ruling that the statements constituted an adoptive admission that the confession was not subject to Aranda/Bruton," citing People v. Preston, 9 Cal.3d 308, 315 (1973). (Answer, Ex. A at 24; Ex. C at 118). Petitioner similarly contests the Court of Appeal's determination that he did not specifically object to the admission of the separate, incriminating conversation allegedly overheard by Whitten, and that any error in its admission was, in any event, "clearly harmless." (Answer, Ex. B at 88).
In Aranda, the California Supreme Court condemned the admission, at a joint trial, of one defendant's confession implicating a co-defendant, and held that the erroneous admission of such a confession was not necessarily cured by an instruction that the confession be considered only against the declarant. See Aranda, 63 Cal.2d at 529.
Preston articulated California's rule that the adoptive admission exception is a firmly rooted, well-established exception to the hearsay rule, and accordingly, does not implicate the Confrontation Clause. See People v. Silva, 45 Cal.3d 604, 624 (1988) (once the defendant has expressly or impliedly adopted the statements of another, the statements become his own admissions, and are admissible on that basis as a well recognized exception to the hearsay rule ( see Ohio v. Roberts, 448 U.S. 56, 65-66 (1980)) (emphasis in original). Recently, however, California's adoptive admission rule has been scrutinized, and arguably limited, by the United States Supreme Court. See People v. Castille, 108 Cal.App.4th 469, 478-486, 133 Cal.Rptr.2d 489 (2003) (holding that incriminating statements made during the course of a joint custodial interview of three accomplices — during which the participants were alternately asked direct questions, or were asked to follow-up or to respond to another's answer — constituted adoptive admissions); judgment vacated, Shields v. California, 541 U.S. 930 (2004) (vacating the judgment and remanding for reconsideration in light of Crawford v. Washington, 541 U.S. 36 (2004) (holding that the Sixth Amendment requires unavailability of a witness and a prior opportunity for cross-examination before testimonial evidence — including police interrogations — can be admitted against a criminal defendant)).
The evidence presented to the jury of Canady's incriminating statements actually consisted of multiple hearsay, the first link of which was Canady's purported admissions directly to and overheard by Whitten, and the second, Whitten's statements reporting Canady's admissions testified to by several police officers. "Hearsay included within hearsay is not excludable by the hearsay rule under California law . . . or federal law . . . so long as each link of the hearsay chain conforms to a separate hearsay exception." Padilla v. Terhune, 309 F.3d 614, 621 (9th Cir. 2002). In his state proceedings, Petitioner squarely addressed the first link in the hearsay chain — whether Canady's statements were admissible against him. Petitioner did not challenge — nor does he in this federal habeas petition — the second link in the hearsay chain, namely, whether the testimony of the officers recounting Whitten's statements was properly admitted. Rather, Petitioner appears to have conceded that it was, given Petitioner's express concession in his direct appeal that the jury was properly instructed as to the use of adoptive admissions. (Answer, Ex. A at 23). Accordingly, the only question before this habeas court is whether admission of Canady's statements — as reported to and overheard by Whitten — violated the Confrontation Clause. ( Id. at 23-24).
The Confrontation Clause of the Sixth 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., VI; Crawford v. Washington, 541 U.S. 36, 38 (2004); Lilly v. Virginia, 527 U.S. 116, 123 (1999). "The central concern of the Confrontation Clause is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversarial proceeding before the trier of fact." Lilly, 527 U.S. at 123-24 (quoting Maryland v. Craig, 497 U.S. 836, 845 (1990)). When the prosecution seeks to introduce statements of a declarant who is unavailable at trial, the courts must decide whether the Confrontation Clause permits the state to deny the accused his usual right to force the declarant to submit to cross-examination. Lilly, 527 U.S. at 124. However, when the declarant appears for cross-examination at trial, the Confrontation Clause places no constraints at all on the use of his prior testimonial statements. Crawford, 541 U.S. at 59 ("The [Confrontation] Clause does not bar admission of a statement so long as the declarant is present at trial to defend or explain it."); see California v. Green, 399 U.S. 149, 162 (1970).
Under prevailing Supreme Court authority at the time of Petitioner's conviction, the Confrontation Clause did not preclude use of hearsay evidence against a criminal defendant if the declarant was unavailable at trial, and the hearsay bore "adequate indicia of reliability." Ohio v. Roberts, 448 U.S. 56, 66 (1980). Under Roberts, a statement bears sufficient indicia of reliability if: "(1) the evidence falls within a firmly rooted hearsay exception, or (2) it contains particularized guarantees of trustworthiness such that adversarial testing would be expected to add little, if anything, to the statement's reliability." Lilly, 527 U.S. at 125; Roberts, 448 U.S at 66.
In Crawford, the Supreme Court rejected Roberts' "indicia of reliability" test with respect to testimonial statements — such as prior testimony and custodial interrogations — holding that the Confrontation Clause does not permit the introduction of such statements unless the declarant is both unavailable at trial and the defendant had a prior opportunity to cross-examine the declarant. Crawford, 541 U.S. at 59. The Court expressly distinguished, for Confrontation Clause purposes, "nontestimonial" hearsay, stating that "[w]here nontestimonial hearsay is at issue, it is wholly consistent with the Framer's design to afford the States flexibility in their development of hearsay law — as does Roberts, and as would an approach that exempted such statements from Confrontation Clause scrutiny altogether." Id. Although the Supreme Court did not so state, Crawford arguably announced a new rule of criminal procedure which is inapplicable in this habeas proceeding. See Teague v. Lane, 489 U.S. 288, 310-311 (1989). However, the Ninth Circuit has held Crawford to apply retroactively, see Bockting v. Bayer, 399 F.3d 1010 (9th Cir. 2005), cert. granted, ___ U.S. ___, ___ S.Ct. ___, ___ L.Ed.2d ___, 2006 WL 1310697 (2006). This Court notes, but does not decide the issue, as Crawford does not alter the result in this case.
A hearsay exception is "`firmly rooted' if, in light of longstanding judicial and legislative experience, . . ., it rests on such a solid foundation that admission of virtually any evidence within it comports with the substance of the constitutional protection." Lilly, 527 U.S. at 126, quoting Roberts, 448 U.S. at 66 (internal quotation marks and citations omitted). Whether or not "statements fall within a firmly rooted exception for Confrontation Clause purposes is a question of federal law." Lilly, 527 U.S. at 125. Alternatively, "[p]articularized guarantees of trustworthiness" must be evident in the statement itself: the hearsay evidence "must possess indicia of reliability by virtue of its inherent trustworthiness, [and] not by reference to other evidence at trial." Lilly, 527 U.S. at 138, quoting Idaho v. Wright, 497 U.S. 805, 822 (1990). Specifically, courts look to the circumstances in which the incriminating statement is made (i.e., in custody or in a private setting), to whom it is made (i.e., law enforcement as opposed to a friend or confidant), and the nature of the statement itself — i.e., whether the statement is inculpatory or shifts blame or responsibility to someone else) when evaluating its reliability for Confrontation Clause purposes. See Roberts, 448 U.S. 66; Padilla, 309 F.3d at 618 (applying Roberts' second prong to declarations against interest).
As the Court elaborated in Lilly, a "firmly rooted hearsay exception" is a category of statements which overtime has proven trustworthy and is widely accepted as such among various jurisdictions and which inherently carries "`special guarantees of credibility' essentially equivalent to, or greater than, those produced by the Constitution's preference for cross-examined trial testimony." Lilly, 527 U.S. at 126 (citations omitted).
Here, the relevant inquiry for Confrontation Clause purposes is not whether the state courts correctly concluded that Petitioner adopted Canady's statements, but rather whether the Confrontation Clause is implicated by their admission, and if so, whether the requisites for their admission under the Confrontation Clause have been satisfied. Preliminarily, there is no doubt that use of Petitioner's own statements against him does not violate the Confrontation Clause. As the Supreme Court has recognized, such statements "are routinely offered into evidence against the maker of the statement and carry a distinguished heritage confirming their admissibility when so used." Lilly, 527 U.S. at 127.
Adoptive admissions are universally considered as falling within this rule, based on the rationale that by adopting another's statements, the defendant makes them his own. For this reason, confrontation — namely, cross-examination — is considered to be neither necessary nor relevant. See, e.g., United States v. Kehoe, 310 F.3d 579, 591 (8th Cir. 2003) ("[co-defendant's] statements to which [witness] testified are [defendant's] own because he had adopted them. He effectively was a witness against himself, thus [witness's] testimony did not violate [defendant's] rights under the Confrontation Clause."); Neuman v. Rivers, 125 F.3d 315, 320 (6th Cir. 1997) (no Confrontation Clause violation occurs where the circumstances show that the defendant manifested adoption of the incriminating statements); United States v. Rollins, 862 F.2d 1282, 1297 (7th Cir. 1988) (where "a party manifests an intent to adopt another person's statements as his or her own, the need to cross-examine the absent informant under oath is not present and the [C]onfrontation [C]lause is not violated"); Harris v. Straub, 2001 WL 739553 *7 (E.D. Mich. 2001) ("[a]doptive admissions do not violate the Confrontation Clause because if the defendant accepts the out-of-court statements as his own, cross-examination of the declarant concerning the hearsay statements becomes `unnecessary and irrelevant'") (citation omitted); Wicklife v. Farley, 809 F. Supp. 618, 627 (N.D. Ind. 1992) (when the Petitioner adopted his co-defendant's admission as his own, the "Petitioner becomes the declarant and there is no confrontation issue"). The Supreme Court has at least inferentially joined this chorus, as evident in the Federal Rules of Evidence, which consider such statements to be non-hearsay. See Fed.R.Evid. 801(d) (2) (B).
Pursuant to Rule 801(d) (2) (B), a statement offered against a party that is "a statement of which the party has manifested an adoption or belief in its truth" is not hearsay.
Following this prevailing rule, the Ninth Circuit has long treated adoptive admissions as implicating, if not falling within, a firmly rooted exception to the hearsay rule. See United States v. Monks, 774 F.2d 945, 951-952 (9th Cir. 1985) (collecting cases). However, Ninth Circuit precedent contemporaneously holds that "application of a recognized hearsay exception does not necessarily evidence compliance with the Confrontation Clause." Id. at 951 (citation omitted). With respect to adoptive admissions, the court in Monks held that "adoptive admissions do not automatically satisfy the Confrontation Clause, at least where the third party statements alleged to have been adopted have probative value independent of the fact that they have been adopted by the defendant." Id. at 952. In such cases, both the unavailability of the declarant and the reliability of the statements must be established to satisfy the Confrontation Clause. Id.; Roberts, 448 U.S. at 66.
In light of these authorities, Petitioner's claim of constitutional error in the admission of Canady's incriminating statements to Whitten fails. Preliminarily, Petitioner has not overcome the presumption of correctness afforded to the state courts' factual finding that a sufficient foundation was laid from which the jury could conclude that he adopted Canady's incriminating statements. 28 U.S.C. § 2254(e) (1); Miller-El, 537 U.S. at 340. Petitioner does not dispute that he was present when the statements were made, that the statements were made in a private setting to someone who was not expected to report to law enforcement, that he heard and understood Canady's incriminating remarks, and that he had the ability and opportunity to dispute them, but declined to do so. Instead, Petitioner simply admonished Canady for confiding in Whitten.
In like circumstances, the Ninth Circuit has held on direct review that a sufficient foundation was laid to allow the jury to decide whether the incriminating admissions were adopted by the defendant. See, e.g., Monks, 774 F.2d at 950 (evidence sufficient to allow jury to conclude that defendant adopted the co-defendant's statement that he and defendant had just robbed a bank where the statement was made to a third party, at a private home, in the defendant's presence, the defendant did not deny the statement, and instead commented on how easy the robbery was); United States v. Sears, 663 F.2d 896, 904-905 (9th Cir. 1981) (evidence sufficient for jury to reasonably find that defendant heard and understood accomplice's incriminating statements made in defendant's presence to a third party at her home, where in response to the question "Should we tell her?," defendant shrugged and nodded her head); cf. United States v. McKinney, 707 F.2d 381, 384 (9th Cir. 1983) (foundation insufficient to permit introduction of accomplices's statement as an adoptive admission where it was not clear that defendant was present at the time the statement was made, that he had heard or understood it, or that the circumstances were such that one should be expected to respond). Thus, in cases factually analogous to Petitioner's, the Ninth Circuit has likewise concluded that the factual requisites for finding an adoptive admission were presented to the jury, and that no Confrontation Clause violation occurred.
The appellate court rejected Petitioner's efforts to characterize his response not as one manifesting adoption of Canady's incriminating statements, but as an immediate and unequivocal response to "a particular point." (Answer, Ex. A at 22). Petitioner further argued that "[h]e merely failed to address another point that happened to be contained in Canady's statement." Id. Accordingly, he argued that the jury "should not have been able to speculate that his forceful response somehow constituted an "adoption" of every purported fact contained in Canady's statement." Id. The court finds this argument equally unpersuasive. Petitioner's reprimand of Canady could reasonably be interpreted by the jury as an effort by Petitioner to protect not only the gang's interests, but his own personal interests as well. In this light, Petitioner's reprimand of Canady has the ring of an admission against his own interest, which supports a finding that he agreed with — adopted — the substance of Canady's confession to Whitten.
Petitioner nevertheless asserts that the state courts stretched in concluding that he adopted Canady's incriminating statements so as to avoid the constitutional ramifications under Bruton of admitting Canady's statements against him. Bruton held that the introduction at a joint trial of a non-testifying co-defendant's confession — which is otherwise inadmissible against the defendant — to establish the defendant's guilt violates the Confrontation Clause, and that the error is not cured by instructing the jury to consider the confession only against the declarant. See Bruton, 391 U.S. at 126.
Bruton does not, however, forbid the introduction of incriminating statements of a non-testifying accomplice which are themselves admissible against a defendant. See Bruton, 391 U.S. at 128 n. 28 (emphasizing "that the hearsay statement incriminating the defendant was clearly inadmissible against him under traditional rules of evidence"). Accordingly, Bruton would not preclude admission of Canady's statements if adopted by Petitioner. See, Monks, 774 F.2d at 951 (noting that, unlike in Bruton, the defendant had adopted the accomplice's incriminating statements, thereby implicating a recognized hearsay exception); United States v. White, 766 F.Supp. 873, 887 (E.D. Wash. 1991) ("[t]he concerns addressed in Bruton . . . come into play only if the statements sought to be introduced are admissible against one defendant and not the other.").
Nor would Bruton preclude admission of Canady's statements if the statements otherwise meet Confrontation Clause prerequisites under Lilly and Roberts. In Lilly, a plurality of the Court made explicit that accomplice confessions that inculpate a criminal defendant do not fall within a firmly rooted exception to the hearsay rule. Rather, such statements must be evaluated to determine if they bear sufficient indicia of reliability. If determined to be reliable, their admission does not violate the Confrontation Clause. Lilly, 527 U.S. at 136-139.
In Lilly and Bruton, the Supreme Court was concerned with the inherent untrustworthiness and unreliability of custodial confessions. After discussing Bruton and the cases that followed, the Court in Lilly reiterated that statements of past fact made in a custodial setting, under law enforcement or government supervision, in response to an official's leading questions, and in circumstances in which the declarant has an actual or perceived motive to exculpate himself or to garner leniency, are traditionally suspect and inherently unreliable. Lilly, 527 U.S. at 136-139. Such "factors militate against finding that [a declarant's inculpating admissions which incriminate another,] [are] so inherently reliable that cross-examination would [be] superfluous." Id. at 139. Accord Forn v. Hornung, 343 F.3d 990, 995-998 (9th Cir. 2003) (under Lilly, admission of unavailable declarant's videotaped custodial interrogation, during which the declarant made statements incriminating himself and the defendant, and was clearly attempting to curry favor and leniency, violated the defendant's rights under the Confrontation Clause); Hill v. Hofbauer, 337 F.3d 706, 716-718 (6th Cir. 2003) (stating that Lilly follows a long line of Supreme Court cases holding that a co-defendant's custodial confession is inherently unreliable). Accordingly, unless the defendant has an opportunity to cross-examine the declarant, admission of such inculpating statements to convict the defendant violates the Confrontation Clause. Lilly, 527 U.S. at 139.
For these reasons, a plurality of the Court in Lilly held that "accomplices' confessions that inculpate a criminal defendant are not within a firmly rooted exception to the hearsay rule as that concept has been defined in our Confrontation Clause jurisprudence." Lilly, 527 U.S. at 134. In other words, such statements "fall outside the realm of those `hearsay exception[s] [that are] so trustworthy that adversarial testing can be expected to add little to [the statements'] reliability." Id. at 133, quoting White v. Illinois, 502 U.S. 346, 357 (1992); see also Padilla, 309 F.3d at 617. Although a plurality opinion, "Lilly [sets forth] `clearly established federal law' for purposes of AEDPA." Forn, 343 F.3d at 995 n. 4; accord Hill, 337 F.3d at 717.
While Lilly specifically addresses accomplice statements made in a custodial setting to law enforcement, the Supreme Court has not addressed whether the Confrontation Clause similarly restricts use of inculpatory statements which are made in a private setting to a private person. The Ninth Circuit has, however, recognized a distinction between these two situations. See Padilla v. Terhune, 309 F.3d 614, 618-619 (9th Cir. 2002); United States v. Boone, 229 F.3d 1231, 1234 (9th Cir. 2000). In Boone, the Ninth Circuit held that an accomplice's statements to his girlfriend that implicated both the accomplice and the defendant were admissible against the defendant. The court found that the statements contained particularized guarantees of trustworthiness because the accomplice made the statements to his girlfriend in a private setting without police involvement, he unabashedly inculpated himself, and he made no effort to shift the blame to anyone else. Id. at 1234. Likewise, in Padilla, the court found that an unavailable declarant's statements inculpating the defendant were admissible at trial because the declarant admitted that he had participated in the commission of a crime to a close friend, in a private setting, with no reason to believe that the police would become involved, he inculpated himself, and he made no effort to mitigate his own conduct or to shift blame to someone else. Id.
Crawford arguably makes Lilly obsolete, given its blanket rejection of Roberts' two prong test as applied to admission of "testimonial evidence." Crawford, 541 U.S. at 60-69. The Court in Crawford did not overrule Roberts, however, as to other types of hearsay. Id. at 1374. Accordingly, the Roberts test for reliability and trustworthiness, applied in Lilly, apparently remains intact other than as to testimonial evidence. Additionally, Crawford did not address accomplice statements made in a private setting to private persons without any law enforcement influence, such as those at issue here. Therefore, even if Crawford applies retroactively in habeas proceedings, it would not appear to alter either the analysis or result in this case.
Canady's statements, and the circumstances in which they were made, are nearly identical to those found to satisfy the Confrontation Clause in Boone and Padilla. Canady inculpated himself and Petitioner in the DeCatur shooting and murder. As was true in Boone and Padilla, he did so in a private setting (at Whitten's residence) to a private person whom Canady trusted (Whitten, Canady's then girlfriend). At the time, Canady had absolutely no expectation or reason to believe that his admissions would be passed on to law enforcement. To the contrary, it is apparent that Canady fully expected that Whitten would maintain his confidences. Although Canady also incriminated Petitioner, he did not do so in such a way as to shift blame away from himself or to minimize his own involvement. Nor did he seek to exaggerate Petitioner's role in the offense. And, unlike in Lilly, Canady's statements were made without any police involvement. On this record, Canady's statements — in light of the circumstances in which they were made — were sufficiently trustworthy and reliable to satisfy Lilly and Roberts.
The state court's implicit rejection of Petitioner's Bruton claim was, accordingly, neither contrary to nor an unreasonable application of existing Supreme Court authority. Whether or not Petitioner's adoptive admissions fall within a firmly rooted hearsay exception, the circumstance in which Canady's statements were made, as well as the statements themselves, bear "particularized guarantees of trustworthiness such that adversarial testing would be expected to add little, if anything, to the statement's reliability." Lilly, 527 U.S. at 125; Roberts, 448 U.S at 66. Accordingly, Petitioner's right of confrontation was not violated by admission of Canady's incriminating statements to Whitten.
2. Canady's Admissions and Harmless Error
Petitioner also challenged the admission of a conversation purportedly between the three defendants which Whitten secretly overheard. Whitten informed the police of this conversation during her videotaped interview. (CT at 126). Whitten stated that she heard Canady brag about the DeCatur shooting, and that he stated "Cuz, we got him cuz." Whitten overhead Conley respond "Man," which Whitten interpreted as implying that Conley felt bad because he killed DeCatur. (Answer, Ex. A at 21-23). Whitten did not expressly state that Petitioner was present during, or participated in, this conversation. Over Petitioner's objection, the trial court allowed it, concluding that it was reasonable to infer from the whole of her interview that all three of the co-defendants were present at the time. (RT at 1873-1874).
In a footnote, the state appellate court rejected Petitioner's challenge to the finding that he adopted Canady's admission, opining that Petitioner had not preserved the issue by objecting specifically to it. The appellate court nevertheless found that any error was harmless. It explained:
Both Canady's statement and codefendant Conley's reply are ambiguous; in light of the more direct admissions of guilt made by defendant Canady and adopted by Petitioner, as well as the express admission of both defendant, evidence of this unintelligible exchange could not have been prejudicial.
(Answer, Ex. B at 88 n. 3).
The California Court of Appeal's harmless error determination in this case was not "contrary to" established federal law. See Medina v. Hornung, 386 F.3d 872, 878 (9th Cir. 2004) (habeas relief is not warranted if any constitutional error is found to be harmless beyond a reasonable doubt, or harmless under an equivalent state law standard). Under prevailing Supreme Court authority, Confrontation Clause violations are subject to harmless error analysis. See Delaware v. Van Arsdall, 475 U.S. 673, 680 (1986); Toolate v. Borg, 828 F.2d 571, 575 (9th Cir. 1987) (applying Van Arsdall to Bruton error); see also Forn, 343 F.3d at 999 ( Lilly error); Hill, 337 F.3d at 718 (same); Cooper v. McGrath, 314 F.Supp.2d 967, 987-992 ( Lilly error). Without concluding that Confrontation Clause error occurred, the state court held that any error in admission of the conversation — which the court labeled an "unintelligible exchange" — was "clearly harmless" and "could not have been prejudicial" given Petitioner's direct and adopted admissions.
Neither did the decision conflict with any materially indistinguishable Supreme Court or amount to an "unreasonable application" of clearly established federal law. Sgt. Chidley testified that Whitten told him that Petitioner and Canady admitted killing Danielle DeCatur — that they had done so unintentionally and had intended to kill a man instead — when Whitten confronted them about the murder. (RT at 2090-2091). Petitioner did not challenge this evidence. Canady's incriminating statements pale in comparison to Petitioner's own admission, and at the worst, merely corroborated it.
Moreover, review of the record does not leave one with the abiding sense that Canady's incriminating statements in any way tipped the balance against Petitioner with respect to the DeCatur shooting. Foster — who knew Petitioner and Canady — placed Petitioner in the car at the time of the shooting. That the jury acquitted Petitioner of the Ellsworth robbery and murder — where no witness placed Petitioner at the scene — in spite of Whitten's statements inculpating him in those offenses, demonstrates that the jury did not lend wholesale credence to Whitten's statements, at least where they were not corroborated by other evidence.
Petitioner goes to some length to discredit Foster's identification of him, pointing out that Foster and the other occupants of Fisher's car had been smoking marijuana, that Foster was intoxicated at the time, and had only a split second — before he ducked to avoid the gunfire — to view the assailants. (Answer, Ex. A at 24-25). The credibility and reliability of Foster's identification was a matter for the jury, and cannot be revisited on federal habeas review.
Petitioner's conviction of the Swain murder further indicates the the jury heavily weighed eyewitness testimony, as Petitioner was identified as Swain's assailant by Swain's girlfriend, who witnessed his murder.
Other evidence inculpated Petitioner in the DeCatur shootings. When Petitioner, Canady and Conley returned to Whitten's apartment after the shooting occurred, Whitten observed that Petitioner had a .25 caliber firearm. Forensic evidence established that .25 caliber casings were found in the back seat of the car used by the assailants after it was abandoned. The same caliber casings were found inside Fisher's car and at the crime scene. The evidence showed that Petitioner was seated in the back seat of the car during the shooting. Finally, the evidence was undisputed that Petitioner, Canady and Conley were gang rivals of Fisher, Foster and DeCatur, that their respective gangs were at "war" with each other, and that graffiti within the Playboy Hustler's territory indicated a desire to kill all "Hoovers," and specifically, Fisher.
Although the appellate court did not so state, this physical and forensic evidence and eyewitness testimony, further supports the court's conclusion that Canady's statements did not prejudice Petitioner. Given the totality of the evidence, Canady's admissions were largely beside the point. The appellate court's harmless error determination was neither contrary to, nor an unreasonable application of clearly established federal law. Petitioner is not entitled to habeas relief on this claim.
People v. Marsden, 2 Cal.3d 118 (1970).
1. Background
At the conclusion of Petitioner's sentencing hearing, after the attorneys had argued, Danielle DeCatur's mother had spoken, and just before the pronouncement of sentence, the trial judge asked whether Petitioner "wants to say anything." The following exchange ensued:
[Petitioner]: Yeah, I want to say something.
The Court: Mr. Johnson.
[Petitioner]: Through this whole matter I don't feel Mr. Powell [Petitioner's defense counsel], he represented me right. I have been in custody since `98, he only came to see me while I have been fighting this case since `99, he only came to see me three times. I don't have no kind of relationship with him. Basically, that is it; you know what I am saying? I don't feel like I got a fair trial either."
The Court: Because of the outcome?
[Petitioner]: Because I feel that I should have went to trial by myself. I mean, with no evidence coming towards me that I did nothing.
The Court: All right. Anything further, Mr. Powell?
Mr. Powell: No, your Honor.
The Court: Mr. Hum [the prosecutor], anything further?
Mr. Hum: No. Thank you.
(RT at 2672). The trial court then proceeded with the imposition of Petitioner's sentence.
Petitioner asserted in his state proceedings that this exchange amounted to an accusation of ineffective assistance by his trial counsel, and a request for different counsel to represent him. Accordingly, Petitioner contends that the trial court was required to hold a hearing pursuant to People v. Marsden, 2 Cal.3d 118 (1970), outside of the presence of the prosecutor, to inquire whether substitution of counsel was appropriate. Petitioner argued that the trial court's failure to do so denied him his Sixth Amendment right to effective assistance of counsel. (Answer, Ex. A 36-38).
The state appellate court rejected this claim, noting that Petitioner had neither specifically requested substitution of counsel nor stated an arguable claim of ineffective assistance of counsel. As to the latter point and citing California caselaw, the court stated that neither of Petitioner's stated complaints — that counsel did not spend enough time with him and that he felt he did not receive a fair trial — sufficiently set forth an arguable claim of ineffective assistance of counsel. The court found Petitioner's second complaint to be "somewhat incomprehensible," and at best indicated regret in not representing himself, or in not being tried separately from his codefendants. The court stated that "[t]his is at worst a disagreement with trial counsel's decision to forego a probably frivolous severance motion. A disagreement over tactical decisions is also not sufficient to set forth an arguable case of ineffective assistance of counsel. Therefore, in the absence of a request to substitute counsel, the trial court was not required to hold a Marsden hearing." (Answer, Ex. B at 94).
The appellate court's determination is consistent with longstanding California law that the trial court's duty to inquire under Marsden is triggered by a defendant's request for new counsel or complaint that he is not receiving adequate representation. See People v. Lara, 86 Cal.App. 4th 139, 151 (2001) (the duty to inquire arises "when the defendant asserts directly or by implication that his counsel's performance has been so inadequate as to deny him his constitutional right to effective counsel". However, the defendant's complaints must "plainly set forth an arguable case of the attorney's alleged incompetence." People v. Kelley, 52 Cal.App. 4th 568, 579 (1997); People v. Hill, 148 Cal.App.3d 744, 752 (1983). Once the duty to inquire is triggered, the defendant's Sixth Amendment right to counsel is implicated. Marsden, 2 Cal.3d at 126.
The appellate court also concluded that any error in failing to hold the Marsden hearing was "clearly harmless," because Petitioner proceeded through trial and the sentencing hearing without voicing any objections about his counsel, and at the time Petitioner made his statements, all that remained was the actual pronouncement of sentence. The court stated: "[i]t is apparent that substitution of counsel at that point could have had no effect on the remaining proceeding." (Answer, Ex. B at 95). Accordingly, the court rejected Petitioner's claim.
2. Sixth Amendment Claim
In this habeas proceeding, the relevant question is whether the state court's failure to further inquire into Petitioner's complaints violated Petitioner's Sixth Amendment right to counsel. Although the Supreme Court has not expressly reached this issue, the Ninth Circuit has held that when a defendant expressly requests new counsel, or otherwise voices a seemingly substantial complaint about counsel, the Sixth Amendment requires that the trial court inquire into the grounds for the defendant's dissatisfaction to determine whether a conflict exists that prevents the effective assistance of counsel. Schell v. Witek, 218 F.3d 1017, 1024-1026 (9th Cir. 2000) ( en banc); Bland v. California Dep't of Corrections, 20 F.3d 1469, 1475-1476 (9th Cir. 1994), overruled on other grounds, Schell, 218 F.3d at 1025). As the Ninth Circuit stated in Schell, "the ultimate constitutional question . . . [is whether] [a conflict has developed] between [Petitioner] and his attorney [that has] become so great that it [has] resulted in a total lack of communication or other impediment that resulted in turn in an attorney-client relationship that fell short of that required by the Sixth Amendment." Schell, 218 F.3d at 1026.
There is no doubt that Petitioner did not request substitution of counsel. Accordingly, Petitioner's Sixth Amendment claim turns on whether he sufficiently alerted the trial judge to the existence of a conflict between himself and his counsel that impeded or prevented the effective assistance of counsel. The state appellate court concluded that he did not and that Petitioner had not "stated an arguable case of attorney incompetence," based either on his statement that his attorney did not spend enough time with him and that he had "no relationship with him," or on his possible regret at having not represented himself or going to trial alone.
The appellate court's determination that these statements did not trigger further inquiry nor amount to a motion for substitution of counsel was not objectively unreasonable. Petitioner first stated that he did not "feel that [defense counsel], he represented me right," that counsel "only came to see me three times," and that "I don't have no kind of relationship with him." A generic assertion that "I don't feel that counsel represented me right" does not necessarily signal a conflict that has impeded the effective assistance of counsel, nor does it alert the court to any particular errors of counsel. Longstanding Supreme Court authority requires that Petitioner articulate specific errors by counsel to make a claim of ineffective assistance of counsel. See United States v. Cronic, 466 U.S. 648, 666 (1984).
Nor does Petitioner's complaint regarding his lack of a relationship and of greater contact with counsel signal a substantial complaint against counsel. The Sixth Amendment does not "guarantee a meaningful relationship between a defendant and his counsel," and requires only that counsel provide competent representation. Morris v. Slappy, 461 U.S. 1, 13-14 (1983). Additionally, although "[a]dequate consultation between attorney and client is an essential element of effective representation of a criminal defendant, [citation], . . . there is no minimum number of meetings between counsel and client prior to trial necessary to prepare an attorney to provide effective assistance of counsel." Cage v. Newland, 1999 WL 1080687 *4 (N.D. Cal. 1999) ("[t]hat Petitioner wishes the consultations with counsel would have been more extensive does not overcome the presumption that counsel rendered effective assistance"); United States v. Olson, 846 F.2d 1103, 1108 (7th Cir. 1988) (an experienced attorney "can get more out of one conference with his client than a less well-trained lawyer can get out of several").
Petitioner also stated that "I don't feel like I got a fair trial either ". . . [¶] "[b]ecause I feel that I should have went to trial by myself. I mean, with no evidence coming towards me that I did nothing." The appellate court surmised that to the extent these statements were comprehensible, they appeared to be post-conviction expressions of regret at the fact of conviction, or of a disagreement with a possible tactical decision by counsel not to pursue a severance motion. (Answer, Ex. B at 94).
This court agrees. Petitioner's explanation that he did not believe that he received a fair trial because he believed he "should have went to trial by myself" as there was "no evidence coming towards me that I did nothing," could have, as the appellate court stated, alerted the trial court to a potential disagreement with counsel regarding severance. Such a disagreement, however, does not necessarily signal a substantial complaint about counsel, or conflict impeding the effective assistance of counsel.
Whether to seek severance of defendants or of counts is within the wide range of tactical decisions entrusted to trial counsel. See Ryan v. Clarke, 281 F.Supp.2d 1008, 1082 (D. Nebr. 2003). Reasoned tactical decisions are largely immune from Sixth Amendment scrutiny. See New York v. Hill, 528 U.S. 110, 114-115 (2000). California law sanctions joint trial of jointly charged defendants, particularly in the "classic" case where multiple defendants "are charged with common crimes involving common events and victims." People v. Keenan, 46 Cal.3d 478, 499-500 (1988). Petitioner's case appears to be such a "classic" case. There is no reason evident in the record to believe that the eyewitness testimony and forensic evidence introduced in the joint trial would not have been admissible at a separate trial of Petitioner alone. As the appellate court opined, a severance motion in this case probably would have been frivolous. (Answer, Ex. B at 14). The Sixth Amendment does not require counsel to make or pursue frivolous motions. See Kimmelman v. Morrison, 477 U.S. 365, 375 (1986) (an attorney does not render ineffective assistance of counsel by failing to file a meritless motion); James v. Borg, 24 F.3d 20, 27 (9th Cir. 1994) ("[c]ounsel's failure to make a futile motion does not constitute ineffective assistance of counsel")
For these reasons, the state court's determination that Petitioner's statements did not trigger the need for further inquiry was not objectively unreasonable. Petitioner did not seek the substitution of counsel. The state court' determination that Petitioner's statements did not amount to the functional equivalent of a motion to substitute ineffective counsel — thereby triggering a duty to conduct further inquiry under the Sixth Amendment — was neither contrary to nor an unreasonable application of federal law. Petitioner is not entitled to relief on this claim.
The appellate court also held that "any error in failing to hold a Marsden hearing was clearly harmless" based on the fact that at the time Petitioner made his comments, the only proceeding that remained was the actual pronouncement of sentence. According to the appellate court, at that point there was nothing left for counsel to do and substitution of counsel would have had no practical effect. (Answer, Ex. B at 95). Because no constitutional error occurred, this determination of harmless error need not be further addressed. Nevertheless, this court notes that Petitioner has an obligation to inform the trial court of any problems with his counsel and to request substitution of counsel in a timely manner. See Schell, 218 F.3d at 1025. It would not be unreasonable to infer from the timing of Petitioner's statements that they were an afterthought prompted by the reality of having been convicted, rather than a substantive claim that counsel did not adequately consult with him or otherwise did not adequately prepare for or perform competently at trial.
C. Ground Three: Sentencing Error
In conjunction with Petitioner's conviction of the attempted murder of Dumar Fisher (Count 5), the jury found true the sentencing enhancement allegations that the offense was gang related (Cal. Penal Code § 186.22 (b) (4)), and that Petitioner personally used a firearm in the commission of the offense Cal. Penal Code § 12022.53(c)). Petitioner challenges the state appellate court's determination that the fifteen-year parole eligibility period required for the gang enhancement should be "stacked" upon the twenty-year enhancement applicable to his personal use of a firearm. Specifically, Petitioner asserted below, and repeats here, that the fifteen-year enhancement cannot be "stacked" on other enhancements, but is instead "a directive that the defendant shall serve at least 15 years in prison as punishment for the count to which the gang allegation attaches." (Answer, Ex. C at 123).
Absent an independent constitutional violation, federal habeas relief is not available for alleged error in the interpretation or application of state law. See Estelle, 502 U.S. at 67. State sentencing error specifically is constitutionally irrelevant unless the error is "so arbitrary or capricious as to constitute an independent due process or Eighth Amendment violation." Richmond v. Lewis, 506 U.S. 40, 50 (1992); Christian v. Rhode, 41 F.3d 461, 469 (9th Cir. 1994) ("Absent a showing of fundamental unfairness, a state court's misapplication of its own sentencing laws does not justify federal habeas relief"). The claim presented to the California Supreme Court was specifically and solely one of statutory interpretation, with no reference to any claimed constitutional error. (See Answer, Ex. C at 122). Nor does any constitutional violation appear from the record. Accordingly, this claim is not cognizable on federal habeas review.
D. Ground Four: Ineffective Assistance of Counsel
1. Failure to Investigate Fingerprint Evidence
Petitioner contends that trial counsel provided ineffective assistance by failing to investigate exculpatory fingerprint evidence from the stolen Toyota Camry that was used by the shooters in the Decatur shooting. Police recovered five fingerprints from the Toyota Camry, but identified only two of the fingerprints. (Amended Petition, Ex. A at 786). One fingerprint belonged to the owner of the Toyota Camry and the other fingerprint belonged to a police officer. Id. Police determined that the three remaining fingerprints did not belong to Petitioner, Canady or Conley. Id.
The Sixth Amendment right to counsel guarantees not only assistance, but effective assistance of counsel. See Strickland v. Washington, 466 U.S. 668, 687 (1984). To prevail on a claim of ineffective assistance of counsel, a petitioner must establish two things: (1) counsel's performance fell below an "objective standard of reasonableness" under prevailing professional norms; and (2) the deficient performance prejudiced the defense, i.e., "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 687-88, 694. Both deficient performance and prejudice must be established to prevail. If it is clear that the petitioner cannot establish prejudice, the claim must be denied regardless of whether counsel's performance was deficient. Id. at 697.
Here, the unidentified prints may simply have come from a person who happened to be in the car at some other time. Even if the fingerprints had been matched to a person, there is no evidence that any other person was implicated in the shootings. Thus, trial counsel's failure to investigate the inconclusive nature of the fingerprints did not amount to ineffective assistance of counsel. See Strickland, 466 U.S. at 689 (there is a strong presumption that challenged actions were sound trial strategy).
Moreover, the presence of other fingerprints does nothing to undermine the eyewitness statement provided by James Foster, who told police that Petitioner was in the shooters' car. Whitten also told police about Canady's statement inculpating himself along with Petitioner and Conley in the killing of Danielle Decatur. Given the evidence presented to the jury, trial counsel's failure to investigate the presence of other fingerprints did not prejudice Petitioner.
2. Exculpatory Eyewitness Statement
Petitioner claims that trial counsel was ineffective for failing to offer into evidence an exculpatory statement made by an "eyewitness" to the crimes, Falisha Decatur.
At trial, Falisha Decatur testified that she had glanced at the shooter and noticed that he had a bald head and brown skin. (RT at 910, 890-91). Although Falisha had previously identified a photograph of Petitioner as the shooter and a photograph of the Toyota Camry as the shooters' car, she was unable to identify Petitioner at trial. (RT at 890-91). On cross-examination, Falisha was asked if she remembered whether she told police on the day of the shootings that she did not see the shooter or the shooters' car. (RT at 907). Falisha responded that she did not remember. (RT at 907-08). Although Falisha was given a copy of the statement that she gave to police on the day of the shootings, Falisha repeatedly claimed that she could not remember what she told police. (RT at 905, 907-08).
During a side-bar conference with counsel, the trial court noted that generally, if a witness' claimed failure of recollection was false, the witness' prior statements could be introduced as prior inconsistent statements. (RT at 913). However, the trial court found that Falisha's failure of recollection appeared to be genuine. (RT at 913). A second attempt to refresh Falisha's memory with a another police report was also unsuccessful. (RT at 914-15).
Although Falisha's prior statement would have had impeachment value, Petitioner cannot establish prejudice, given the damaging identification made by Foster and Petitioner's own responses to Canady's incriminating statements. In light of the evidence introduced at trial, it is not reasonably probable that the jury would have reached a different result if it had been informed that Falisha told police on the day of the shootings that she did not see the shooter or the shooter's car. The state court's denial of this claim was not objectively unreasonable. Strickland, 466 U.S. at 697.
E. Ground Five: Prosecutorial Misconduct In Closing Argument
Petitioner contends that the prosecutor committed misconduct by incorrectly arguing to the jury that there were no fingerprints in the stolen Toyota Camry. During closing argument, the prosecutor made the following statement concerning fingerprints:
About three blocks away [from the location of the shooting] a car matching the exact description of the car the defendants were in pulls up, three to four young male Blacks in the car wearing glasses, beanies and gloves[,] . . . gloves just like Alex Liggins said Defendant Canady was wearing, just like Shonta Whitten said Defendant Canady was wearing. . . . I wonder why there were no fingerprints?
(RT at 2451). In rebuttal argument, the prosecutor stated:
How does the fact that there were no fingerprins found in the car, nobody's fingerprints, not just not the defendants' fingerprints, no fingerprints, how does that help the defense? How is that any evidence that these defendants didn't commit this crime? It's not. The fact that there were no fingerprints found in the car means that there were no fingerprints in the car and that's all it means.
(RT at 2589-90).
A defendant's due process rights are violated when a prosecutor's misconduct renders a trial "fundamentally unfair." See Darden v. Wainwright, 477 U.S. 168, 181 (1986). Prosecutorial misconduct is reviewed "`on the merits, examining the entire proceedings to determine whether the prosecutor's remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir. 1995).
Here, the prosecutor argued that although Petitioner's, Canady's and Conley's fingerprints were not recovered from the Toyota Camry, the absence of such evidence did not establish that they were not shooters. (RT at 2451, 2589-90). In other words, the prosecutor was simply arguing a reasonable inference based on the evidence presented. See United States v. Atcheson, 94 F.3d 1237, 1244 (9th Cir. 1996) ("It is not misconduct for the prosecutor to argue reasonable inferences based on the record.") (citation omitted). Thus, the challenged statements did not amount to prosecutorial misconduct. Moreover, even if the prosecutor was inaccurate in stating that there were no fingerprints found in the Toyota Camry, it did not render Petitioner's trial fundamentally unfair. Indeed, even Canady's counsel stated during closing argument that there were no fingerprints found in the shooters' car:
But what's significant about a lot of the evidence is what you don't have and what you weren't given. . . . [¶] [The prosecutor] talked about gloves on one person but there no fingerprints identifiable to anybody, . . . none on the car, none on a casing, nowhere, none on any car.
(RT at 2490). Further, as discussed above, Foster's eyewitness identification of Petitioner as being in the shooters car, together with Whitten's statements concerning Petitioner's adoptive admissions to Canady's statement was significant evidence establishing Petitioner's guilt. Under such circumstances, any error was harmless. Shaw v. Terhune, 380 F.3d 473, 478 (9th Cir. 2002) ("Prosecutorial misconduct which rises to the level of a due process violation may provide the grounds for granting a habeas petition only if that misconduct is deemed prejudicial under the `harmless error' test articulated in Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993)").
F. Ground Six: Prosecutor's Failure to Disclose Fingerprint Evidence
Petitioner contends that the prosecutor knowingly withheld exculpatory evidence by failing to disclose the fingerprint evidence to Petitioner's counsel.
The government has a duty to disclose evidence favorable to the accused when it is material to guilt or punishment. See Brady v. Maryland, 373 U.S. 83, 87 (1963). There are three components of a Brady violation: the material evidence "must be favorable to the accused, either because it is exculpatory, or because it is impeaching; that evidence must have been suppressed by the State, either willfully or inadvertently; and prejudice must have ensued." Strickler v. Greene, 527 U.S. 263, 281-82 (1999).
Assuming, without deciding, that the prosecutor withheld the fingerprint evidence, revelation of such evidence would not have materially enhanced Petitioner's ability to present a defense or otherwise challenge his conviction. As stated above, the presence of other fingerprints does nothing to undermine Foster's identification of Petitioner as being in the shooters car or Whitten's description of Petitioner's responses to Canady's incriminating statements. Even if the fingerprints were matched to a person, there is no evidence that any other person was implicated in the shootings. Thus, Petitioner has not established that the fingerprint evidence was material or that Petitioner was otherwise prejudiced. Accordingly, Petitioner is not entitled to habeas relief on this claim.
The Court notes that fingerprint evidence appears to have been disclosed to Petitioner's counsel prior to trial. (CT at 348; see Supplemental Answer to Petition for Writ of Habeas Corpus, Ex. K at 12, 18).
G. Grounds Seven and Eight: Biased Juror and Ineffective Assistance
Petitioner contends that his constitutional right to a fair trial by an impartial jury was violated when a biased juror, Juror No. 4, was permitted to serve on the jury. Petitioner also claims that he was denied effective assistance of counsel because his trial counsel failed to request that Juror No. 4 be removed for bias.
One morning during trial, Juror No. 4 informed the trial court that his 22-year old nephew had recently died in a car accident. (RT at 1005-06). Juror No. 4 stated that he might need to be relieved of jury service in order to attend a funeral later that week. (RT at 1005). In a sidebar conference with Juror No. 4 and counsel, the trial court asked Juror No. 4 whether he would prefer to be excused or whether he felt he could still concentrate on the trial. (RT at 1006). Juror No. 4 responded that he was not sure, but that he wanted to try "and see how it goes." (RT at 1006). When asked about whether criminal activity had been involved, Juror No. 4 responded that his nephew and some friends had simply been involved in a car accident on the way home from ski trip. (RT at 1007). Canady's counsel then engaged in the following colloquy with Juror No. 4:
Canady's Counsel: You heard that there are some very young people in this case that got killed. Do you think that that might affect you in any way in terms of your feeling?
Juror No. 4: Sympathy for the other side. Like I said he was a young man, 22 years old. I have six children. I will try.
(RT at 1007-08). At the request of Petitioner's counsel, the trial court informed Juror No. 4 that he should just raise his hand if, at any point in the proceedings, he began to feel that he should not serve as a juror. (RT at 1008).
Three days later, Juror No. 4 informed the trial court and counsel that the funeral services for his nephew were going to be held the coming weekend. The trial court responded that it had been watching Juror No. 4 and he seemed to be attentive. (RT at 1457).
The Ninth Circuit analyzes juror bias under two theories, actual bias and implied bias. "Actual bias is bias in fact — the existence of a state of mind that leads to an inference that the person will not act with entire impartiality." Fields v. Brown, 431 F.3d 1186, 1193 (9th Cir. 2005) (citations omitted). The determination of whether a juror is actually biased is a question of fact. Dyer v. Calderon, 151 F.3d 970, 973 (9th Cir. 1998).
Here, the record demonstrates that it was reasonable for the trial court to conclude that Juror No. 4 was able to continue to serve as a juror based on its observations and discussion with Juror No. 4. There was no evidence that Juror No. 4 was actually biased or that he lied to conceal any bias.
Any argument that Juror No. 4 was impliedly or presumptively biased also fails. The Ninth Circuit permits defendants alleging juror partiality to proceed on theories of actual or implied bias. United States v. Plache, 913 F.2d 1375, 1378 (9th Cir. 1990). However, bias may be implied only in exceptional circumstances. McDonough Power Equip. v. Greenwood, 464 U.S. 548, 556-57 (1984) (Blackmun, J., concurring) (citing Smith v. Phillips, 455 U.S. 209, 215-16 (1982)). Bias has been implied where (1) a juror has prejudicial information about the defendant; (2) a juror has a personal connection to the defendant, victim, or witnesses; or (3) a juror or a close relative of the juror has been involved in a situation involving similar facts. Coughlin v. Tailhook Ass'n, 112 F.3d 1052, 1062 (9th Cir. 1997); see also Dyer, 151 F.3d at 973 (implying bias from juror's pattern of lying about similar crime perpetrated against her relative). Extreme instances of juror deception may also result in a finding of implied bias. See Green v. White, 232 F.3d 671, 677-78 (9th Cir. 2000) (implying bias from juror's excessive, deliberate lies). In this case, the Court finds no factual predicate on which bias should be inferred or presumed. Juror No. 4's conduct during the trial does not warrant the conclusion that this is one of the rare and "extreme situations" a court implies the existence of bias. Tinsley v. Borg, 895 F.2d 520, 527 (9th Cir. 1990). Nothing that Juror No. 4 said or did suggested any bias against Petitioner. Accordingly, Petitioner is not entitled to habeas relief on this claim.
Petitioner's claim of ineffective assistance of counsel also fails. Because Juror No. 4 demonstrated no bias against Petitioner and was fully able to discharge his duty to deliberate and decide the case based on the evidence, a motion to remove Juror No. 4 for cause would have been futile. See Wilson v. Henry, 185 F.3d 986, 990 (9th Cir. 1999) (to show prejudice under Strickland from failure to file a motion, petitioner must show that (1) had his counsel filed the motion, it is reasonable that the trial court would have granted it as meritorious, and (2) had the motion been granted, it is reasonable that there would have been an outcome more favorable to him); Rupe v. Wood, 93 F.3d 1434, 1445 (9th Cir. 1996) (failure to take futile action can never be deficient performance).
H. Ground Nine: Gang Evidence
Petitioner claims that the admission of gang evidence denied him a fair trial. In particular, Petitioner contends that the gang evidence was cumulative, prejudicial and should have been ruled as inadmissible.
The admission of evidence is not subject to federal habeas review unless a specific constitutional guarantee is violated or the error is of such magnitude that the result is a denial of the fundamentally fair trial guaranteed by due process. See Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999). Admission of evidence violates due process only when two circumstances are met: (1) "there are no permissible inferences the jury may draw from the evidence" and (2) the evidence is "of such quality as necessarily prevents a fair trial." Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991) (quotations and citation omitted). Moreover, juries are presumed to follow a court's limiting instructions with respect to the purposes for which evidence is admitted. See Aguilar v. Alexander, 125 F.3d 815, 820 (9th Cir. 1997).
Here, the theory of the prosecution was that Petitioner, Canady and Conley went into Hoover gang territory to find and murder Dumar Fisher because he was a member of the Hoover gang, which was a rival of Petitioner's and Canady's Playboy gang. Clearly, the gang affiliation evidence was properly admitted as evidence of motive to commit the Decatur shooting, as well as to prove the gang enhancements. (CT at 267, 269, 271, 273). In addition, the gang evidence was relevant to show that some witnesses (Foster and Whitten) may have recanted their statements incriminating Petitioner, due to fear of retaliation. Thus, Petitioner fails to carry his burden on collateral appeal to establish that there were no permissible inferences that a jury could draw from the gang evidence.
Petitioner also claims:
Both officers stated under oath that they were gang experts on the gang Petitioner was affiliated with. Then questioned another time under oath, they denied being experts for such gang.
(Petition at 9). To the extent Petitioner may be asserting an independent claim based on gang expert testimony, his claim is vague and conclusory. Therefore, rejection of such claims is appropriate. See Hendricks v. Vasquez, 908 F.2d 490, 491 (9th Cir. 1990) (summary dismissal of a habeas claim is appropriate "where the allegations in the petition are vague and conclusory").
Petitioner further asserts that he was denied the right to an impartial jury because several jurors requested that they be referred to by seat number rather than name. Petitioner is apparently referring to a letter signed by nine of the prospective jurors, which the trial court read into the record as follows:
Dear Judge Abrams,
I am very concerned about the lack of anonymity of jurors on this case. In other courtrooms to which we have been asked to report for jury review, we have been called by the last four digits of our juror number and we have been assigned to seat one, seat two, et cetera. The lawyers questioned us by calling on Juror No. 1, et cetera.
In addition[,] I asked a friend who is a Public Defender and he stated jurors are never identified by name in a criminal case of this nature.
This case involves gangs and numerous charges including murder, attempted murder and dissuading a witness. Of course I do not know if the defendants are guilty or not of these charges[,] but the mere allegation is scary for us as prospective jurors who might be deciding guilt or innocence.
Some jurors have reasoned if they possibly tried to dissuade a witness, what might they or their friends do to someone who is a lot further along in the judicial process and is deciding their future. I don't even want to approach the bench with this request in open court for fear of drawing added attention to myself.
Many of the jurors who have been bounced expressed this concern and many in the box with me now share this concern. This request should have been made before voir dire began but I felt too intimidated to make the request. If seated for this case we respectfully request that jurors be referred to by their seat number, thus guaranteeing our anonymity during the trial and delivery of the verdict. . . .
(RT at 264-66).
In response to the letter, the trial court informed the prospective jurors that the court would edit the record at the conclusion of the case and that all of the jurors' names would be removed and sealed in an envelope. (RT at 270). The trial court also stated that other than when a prospective juror is initially called into the jury box, the jurors would be referred to by seat number for the remainder of the trial. (RT at 271). The trial court then proceeded to inquire whether each of the prospective jurors could be fair and impartial. (RT at 271-86). Because Juror No. 2 indicated that she preferred not to sit on the jury, she was excused by stipulation. (RT at 273-74, 278). Prospective Jurors 1, 3, 4, 5, 6, 8, 10, 11 and 12 all indicated that they felt they could be fair and impartial and that the trial court's assurances had alleviated their previous concerns. (RT at 279-82, 284-85). Although Juror No. 9 indicated concern about the jurors' names being announced in open court, he stated that he could weigh the evidence impartially and be totally fair. (RT at 282-83). Counsel indicated that they were satisfied with the trial court's inquiry.
The answers to the trial court's questioning was sufficient to show that the jurors were not actually biased against Petitioner. The testimony of the prospective jurors clearly establishes that they could be fair and impartial, despite their earlier concerns about their anonymity. Petitioner also fails to establish implied bias on the part of any of the jurors. Tinsley, 895 F.2d at 527. And, given the trial court's agreement to remove the jurors' names from the court record and refer to the jurors by their seat numbers, a finding of implied bias is not warranted. Accordingly, the state court's rejection of this claim was neither contrary to nor an unreasonable application of clearly established federal law.
J. Ground Ten: Ineffective Assistance of Appellate Counsel
Petitioner claims that appellate counsel provided ineffective assistance by failing to raise on direct review the claims set forth in Grounds Four through Nine. However, as discussed above, the claims raised in Grounds Four through Nine are without merit. Thus, Petitioner cannot show that he was prejudiced by appellate counsel's failure to raise such claims on direct review to the California Court of Appeal. See Boag v. Raines, 769 F.2d 1341, 1344 (9th Cir. 1985) (stating that failure to raise a meritless argument on appeal does not constitute ineffective assistance); Gustave v. United States, 627 F.2d 901, 906 (9th Cir. 1980) ("[t]here is no requirement that an attorney appeal issues that are clearly untenable"); Smith v. Robbins, 528 U.S. 259, 287 (2000) (appellate counsel does not have a constitutional duty to raise every non-frivolous issue requested by a defendant); Barnes, 463 U.S. at 754.
IV. Recommendation
For the reasons stated above, I respectfully recommend that the Petition be DENIED.