Opinion
Civil No. 04-1042-H (LSP).
January 12, 2006
REPORT AND RECOMMENDATION DENYING SECOND AMENDED PETITION FOR WRIT OF HABEAS CORPUS
Rae-Yuen Liu (hereinafter "Petitioner"), a state prisoner proceeding pro se, has filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254, to which Respondent has filed an Answer. Petitioner has not filed a Traverse to Respondent's Answer. The Court, having reviewed Petitioner's Petition, Respondent's Answer, and the documents lodged therewith, finds the Petitioner is not entitled to the relief requested and recommends that the Petition for Writ of Habeas Corpus be DENIED.
In the Fall 2003, Petitioner retained counsel, Kent A. Russell. On January 15, 2004, Mr. Russell substituted in as counsel contemporaneously with the filing of the Motion for Leave to Amend Petition for Writ of Habeas Corpus to Add Additional Ground for Relief, in the California Supreme Court. (Respondent's Lodgment No. 27 at 1, 6.)
I. PROCEDURAL HISTORY
On March 13, 2000, after a jury trial, Petitioner was convicted of second degree murder [Cal. Penal Code § 187 (a)], and stalking [Cal. Penal Code § 646.9 (a)]. The jury also made a true finding that Petitioner used a deadly weapon to commit the murder (Cal. Penal Code § 12022 (b)). (Respondent's Lodgment No. 3 at 529-31.) On August 10, 2000, Petitioner was sentenced to sixteen years to life in prison. (Respondent's Lodgment No. 3 at 537; No. 2 at 470.)Petitioner appealed her conviction to the California Court of Appeal. Petitioner raised the following claims in her appeal: (1) the evidence was insufficient to support a conviction of second degree murder; (2) the conviction for stalking could not stand because she had an ongoing relationship with the victim; (3) reversal of both convictions was required because the trial court instructed the jury with CALJIC No. 17.41.1, which violated her rights to juror unanimity, due process and a fair trial; and (4) the conviction for second degree murder must be reversed because the court failed to instruct the jury that an intent to kill was not necessary in order for her to be guilty of involuntary manslaughter on a heat of passion theory. On December 3, 2001, the Court of Appeal affirmed the conviction. (Respondent's Lodgment No. 20 at 1-2, 9.)
On January 4, 2002, Petitioner filed a Petition for Review with the California Supreme Court. (Respondent's Lodgment No. 21.) On February 18, 2002 the Petition was denied. (Respondent's Lodgment No. 22.)
Petitioner then filed a Petition for Writ of Habeas Corpus with the San Diego Superior Court, Case Number HC 17265. Petitioner raised the following claims in her Petition: (1) ineffective assistance of counsel in that her trial attorney failed to argue a theory of "heat of passion" for manslaughter and failed to object to the prosecutor's tactics on cross-examination, and (2) prosecutorial misconduct for the prosecutor's comments made during cross-examination and closing arguments. On February 5, 2003, the Petition was denied. (Respondent's Lodgment No. 23 at 1, 5.) The Superior Court held that: (1) the Petitioner failed to support her claim of ineffective assistance of counsel; and (2) the Petitioner's claim of prosecutorial misconduct was barred because she did not raise the issue in her direct appeal, nor present any reason for her failure to do so. (Respondent's Lodgment No. 23 at 2-5.)
On March 28, 2003, Petitioner filed a Petition for Writ of Habeas Corpus with the California Court of Appeal, Fourth District, Division One. (Respondent's Lodgment No. 24.) On June 3, 2003, the Court of Appeal denied the Petition. (Respondent's Lodgment No. 25.)
On July 11, 2003, Petitioner filed a Petition for Writ of Habeas Corpus with the California Supreme Court. (Respondent's Lodgment No. 26.) On January 15, 2004, Petitioner filed a Motion for Leave to Amend Petition for Writ of Habeas Corpus to Add Additional Ground for Relief with the California Supreme Court. (Respondent's Lodgment No. 27.) Contemporaneous with the filing of this Motion, Mr. Kent A. Russell substituted in as Petitioner's counsel. In the Motion, Petitioner presented the trial court's failure to instruct the jury on involuntary manslaughter as a federal constitutional claim. On March 17, 2004, the California Supreme Court denied the petition. (Respondent's Lodgment No. 28.)
On May 20, 2004, Petitioner filed a Petition for Writ of Habeas Corpus with this Court. On September 15, 2004 this Court issued a Notice Regarding Possible Dismissal of Petition for Failure to Exhaust State Court Remedies, and offered the Petitioner four options to avoid dismissal of the Petition. On September 28, 2004, Petitioner filed a Motion to Stay and Abey Federal Proceedings Pending Exhaustion. On November 8, 2004, this court granted Petitioner's Motion so that she could return to the California Supreme Court to exhaust an unexhausted claim.
On December 6, 2004, Petitioner filed a Petition for Writ of Habeas Corpus in the California Supreme Court containing the federal constitutional claim that the trial court failed to instruct the jury on involuntary manslaughter. On November 2, 2005, the California Supreme Court denied the Petition. On November 30, 2005, Petitioner filed a Second Amended Petition for Writ of Habeas Corpus with this Court. On December 23, 2005, Petitioner filed a Final Report Re Completion of Exhaustion in State Court. In the Final Report, Petitioner requested that the Court formally accept the filing of the Second Amended Petition and establish a briefing schedule thereon.
As previously noted, on November 30, 2005, the Second Amended Petition was filed in this Court. The Second Amended Petition contains the same claims as in the previous Petitions, including the now exhausted claim. The Court does not see a need for further briefing because Petitioner and Respondent have addressed on the merits Petitioner's now exhausted claim. (See Petition at 7 unnumbered pages following page 6, Second Amended Petition at 8-19, Respondent's Answer at 16-19).
II. FACTUAL HISTORY
The facts that follow are taken substantially from the California Court of Appeal opinion in People v. Liu, No. D036213 at 2-4 (Cal Ct. App. Dec 3, 2001) (Respondent's Lodgment No. 20.) The Court relies upon these facts pursuant to 28 U.S.C. § 2254(e). See Sumner v. Mata, 449 U.S. 539, 545-47 (1981) (stating that deference is owed to findings of both state and appellate courts); Parke v. Raley, 506 U.S. 20, 35-36 (1992) (stating that questions of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness); Tinsley v. Borg, 895 F.2d 520, 524-26 (9th Cir. 1990) (stating that factual findings of both state trial and state appellate courts are entitled to presumption of correctness on federal habeas corpus review).Petitioner immigrated to the United States from Taiwan in 1986, after marrying Warren Given, an American citizen. Robert Saleva, the victim, worked at the same company as Given. Savela had been married to Janice Wahlstrom from August 1986 through 1995. Petitioner and Savela met in September 1995, and soon afterward they began a romantic relationship. In March 1996, Petitioner moved in with Saleva and paid him $300 per month in rent. The relationship soon deteriorated, and Petitioner moved out in June 1996. Thereafter, Petitioner called Savela excessively. Between December 1996 and September 13, 1998, Petitioner made 2,053 phone calls to Savela. During the same period, Savela called Petitioner 81 times. In numerous recorded messages on Savela's answering machine, Petitioner stated, inter alia: "I'll knock your door down," and "I'll make sure you're dead. I'll make sure you [sic] dead. Okay? And you're gonna' die in a horrible way." She promised to ruin Savela and destroy his life, and threatened to kill him and his young daughter. She told Saleva the only way she could calm down and be happy was to see him suffer. Savela also kept a day planner in which he recorded incidents in which Petitioner had threatened him and his daughter, came to his home and hit, bit and attempted to choke him. Saleva often attempted to appease Petitioner but was unsuccessful in getting her to leave him alone.
In August 1998, Savela's former wife, Wahlstrom, moved in with him to share expenses and help take care of their daughter. On Saturday, September 12, 1998, Savela, Wahlstrom, and their daughter went to see a movie, and during that time Petitioner paged Savela at least 15 times, and called him numerous times when he returned home. During one of these calls, which Savela recorded, Petitioner told him, "Tonight you'll be dead. The whole family will be dead," and "If not today, tomorrow, day after, someday I'll get you." When Savela told her not to say such things, Petitioner replied, "Why don't talk like that? What, what the death penalty? I don't care. That just make me more determined." Later in the conversation she told Savela, "You [sic] dead. You're dead. Okay? You're dead."
The next morning, September 13, 1998, Petitioner called Savela twice and came to his house at about 8:00 a.m. Savela answered the door and then, as he left with Petitioner, told Wahlstrom, "If I'm not back by midnight, call the police because I'm dead." Petitioner testified that she drove Savela to Mission Trails Park and stopped the car in the parking lot so they could talk. Savela told Petitioner that she could not "let go" and she told him repeatedly that he was a liar. Savela then got out of the car. From across the street, Jared Schwartz heard the sound of a car revving its engine. He looked toward where the sound was coming from and saw Savela pinned against a guardrail by Petitioner's car. Around the same time, Andrew Senelick was in a market across the street when he noticed a dust cloud like a "rooster tail" in the dirt parking lot of Mission Trails Park. Minutes later, he crossed the street and saw Savela lying face down on the ground partially under the guardrail. Senelick noticed that the guardrail was bent and leaning and one of its posts was broken.
Paramedics arrived on the scene and found Savela's body twisted and contorted; he was barely breathing and had an extremely low pulse. Savela died later that day of massive internal injuries to his kidneys, bowels and spleen. His pelvis was crushed, and all of his ribs had been broken. Given the location of his injuries and the height of the guardrail, the doctor who performed the autopsy opined that Savela was upright on his knees when Petitioner drove into him. Based on the tire marks and other physical evidence at the scene, police investigators concluded petitioner had accelerated backwards and forwards a number of times, ran over a concrete bump, and then hit Savela at about 25 miles per hour, pinning him between the car and the guardrail. They concluded the incident was not an accident.
Petitioner testified that Savela's death was accidental, caused by her hitting the concrete bump and then pressing the accelerator pedal instead of the brake pedal. Defense experts testified that in their opinion, Petitioner started to brake when the car hit the concrete bump and rolled into Savela at 8 to 10 miles per hour.
III. PETITIONER'S CLAIMS
Petitioner argues that (1) the trial court's failure to instruct on involuntary manslaughter, a lesser included offense of murder, violated her rights to due process and a fair trial under the Fifth and Fourteenth Amendments; (2) she was denied effective assistance of counsel where (a) her trial counsel failed to argue heat of passion or involuntary manslaughter; (b) her trial counsel failed to object to prosecutorial misconduct on the basis of improper statements during cross examination of expert witnesses and statement that Petitioner was a liar; (c) her trial counsel failed to object to the joining of the stalking count and the murder count; (d) her appellate counsel failed to federalize arguments made to the California Supreme Court on Petition for Review; and (3) prosecutorial misconduct where (a) the prosecutor appealed to wealth and class bias; (b) the prosecutor attacked defense experts on the basis of fees they were paid and argued the Petitioner was "buying justice"; (c) the prosecutor stated belief that Petitioner was a liar; (d) the prosecutor injected personal beliefs into final argument.
IV. STANDARD OF REVIEW
Title 28, United States Code, § 2254(a), sets forth the following scope of review for federal habeas corpus claims:
The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.28 U.S.C. § 2254 (a) (West 1994) (emphasis added).
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") applies to habeas corpus petitions filed after 1996.See Lindh v. Murphy, 521 U.S. 320 (1997). The current petition was filed on May 20, 2004, and is governed by the AEDPA. As amended, 28 U.S.C. § 2254 (d) now reads:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.28 U.S.C. § 2254 (d) (West Supp. 2003) (emphasis added).
To obtain federal habeas relief, Petitioner must satisfy either § 2254 (d) (1) or § 2254 (d) (2). See Williams v. Taylor, 529 U.S. 362, 403 (2000). A state court's decision may be found to be "contrary to" clearly established Supreme Court precedent: (1) "if the state court applies a rule that contradicts the governing law set forth in [the Court's] cases" or (2) "if the state court confronts a set of facts that are materially indistinguishable from a decision of [the] Court and nevertheless arrives at a result different from [the Court's] precedent." Id. at 405-06;Lockyer v. Andrade, 538 U.S. 63, 72-75 (2003). A state court decision involves an "unreasonable application" of clearly established federal law, "if the state court identifies the correct governing legal rule from this Court's cases but unreasonably applies it to the facts of the particular state prisoner's case," or, "if the state court either unreasonably extends a legal principle from our precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." Williams, 539 U.S. at 407; Andrade, 538 U.S. at 76. These two concepts overlap and it is sometimes necessary to test a petitioner's allegations against both standards. Van Tran v. Lindsey, 212 F.3d 1143, 1150 (9th Cir. 2000), overruled on other grounds,Lockyer v. Andrade, 538 U.S. at 75-76.
Where there is no reasoned decision from the state's highest court, the Court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-06 (1991). If the dispositive state court order does not "furnish a basis for its reasoning," federal habeas courts must conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of, clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000) (overruled in part byAndrade, 538 U.S. at 74-77).
A federal habeas corpus petition must allege a deprivation of one or more federal rights to present a cognizable claim pursuant to § 2254. A state's interpretation of its laws or rules provides no basis for federal habeas corpus relief because no federal constitutional question arises. Estelle v. McGuire, 502 U.S. 62, 68 (1991) (federal habeas corpus relief does not lie for errors of state law, and federal courts may not reexamine state court determinations on state law issues).
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly . . . Rather, that application must be objectively unreasonable." Andrade, 538 U.S. at 76 (internal quotation marks and citations omitted). Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the United States Supreme] Court's decisions." Williams, 529 U.S. at 412; Andrade, 538, 123 U.S. 71-72.
As amended, § 2254(e)(1) provides: "[A] determination of a factual issue made by a State court shall be presumed to be correct." 28 U.S.C. § 2254(e)(1). Petitioners have "the burden of rebutting the presumption of correctness by clear and convincing evidence." Id.
Petitioner has claimed her constitutional rights to a fair trial, due process, and effective counsel were violated. Thus, this federal court may only grant habeas relief where the state court arrived at a decision with regard to Petitioner's claims that were contrary to, or involved an unreasonable application of, clearly established federal law.
V. DISCUSSION
On November 2, 2005, the California Supreme Court silently denied this claim, citing In re Clark 5 Cal. 4th 750 (1993) andIn re Miller 17 Cal.2d 734 (1941). The citation to In re Clark here could be either an invocation of California's "untimeliness bar" (see La Crosse v. Kernan, 244 F.3d 702, 704-06 (9th Cir. 2001), In re Robbins, 18 Cal.4th 770, 780 (1998)), or the bar on successive petitions (see In re Robbins, 18 Cal.4th at 788 n. 9 (" Clark serves to notify habeas corpus litigants that we shall apply the successiveness rule when we are faced with a petitioner whose prior petition was filed after the date of finality of Clark.")), and most likely both (In re Clark, 5 Cal.4th at 797-98 ("the general rule is still that, absent justification for the failure to present all known claims in a single, timely petition for writ of habeas corpus, successive and/or untimely petitions will be summarily denied" and setting forth acceptable justifications for delay). Although the record is unclear which procedural bar was applied to this claim, as long as both procedural bars are adequate and independent to uphold the judgment, the claim is procedurally defaulted. Washington v. Cambra, 208 F.3d 832, 834 (9th Cir. 2000)
In re Miller holds that the California Supreme Court will not consider a successive petition that realleges claims that previously have been rejected. In re Miller, 17 Cal. 2d 734, 735 (1941); see In re Clark, 5 Cal. 4th at 767 A citation to Miller indicates that the claim was denied for the same reason cited by the court in denying the prior petition. See Kim v. Villalobos, 799 F.2d 1317, 1319 n. 1 (9th Cir. 1986); Lee v. Marshall, 843 F. Supp. 608, 611 (C.D. Cal. 1993).
The California Supreme Court has recognized that it has described the rule announced in In re Miller as discretionary, noting that "[o]n occasion, the merits of successive petitions have been considered regardless of whether the claim was raised on appeal or in a prior petition." In re Clark, 5 Cal. 4th at 768.
While this claim may be procedurally defaulted due to the California Supreme Court's citations to In re Clark and In re Miller, the Court opts to analyze the claim on the merits.
Petitioner claims that she was denied due process because the trial court did not instruct the jury on involuntary manslaughter. She contends that had the jury been instructed on involuntary manslaughter, it is likely that it would have found her guilty of this lesser offense, rather than of second degree murder. Respondent argues that the Petitioner was not denied due process.
Respondent claims the state court properly determined that the failure to give an involuntary manslaughter instruction was harmless, and the decision is not contrary to, or an unreasonable application of clearly established federal law. Respondent asserts that even if the court applied the wrong standard of harmless error, Petitioner would not prevail under the stricterChapman standard of harmless error, simply because the evidence was so strong that Petitioner harbored an intense intent to kill.
The trial court instructed the jury on first-degree murder, and the lesser-included offenses of second-degree murder, voluntary manslaughter and vehicular manslaughter. (Respondent's Lodgment No. 17 at 2694-2706; Respondent's Lodgment No. 1 at 185-208) The trial court did not give an involuntary manslaughter instruction. At the time of Petitioner's trial, a manslaughter defense based on killing in the heat of passion required an intent to kill, regardless of whether it was voluntary or involuntary. Petitioner asserts that her trial counsel did not argue or request an involuntary manslaughter instruction because such an instruction would have required the jury to find she had an intent to kill. She urges that would have been contrary to her primary defense, which was that the killing was accidental.
Subsequent to Petitioner's trial, the California Supreme Court held that manslaughter based on a heat of passion theory does not require an intent to kill. See People v. Lasko, 23 Cal.4th 101, 111 (2000). In Lasko, the defendant was convicted of second degree murder. On appeal he argued the trial court had erroneously instructed the jury that intent to kill was an essential element of manslaughter. He argued that if the jury found he had killed the victim in a sudden quarrel or heat of passion, but had done so without the intent to kill, the jury was required to convict him of murder. Id. at 106. The California Supreme Court agreed that the jury had been erroneously instructed on manslaughter and stated, "a killer who acts in sudden quarrel or heat of passion lacks malice and is therefore not guilty of murder, irrespective of the presence or absence of an intent to kill." Id. at 109. However the Court held that the error did not prejudice the defendant. Id. at 111.
Similar to the defendant in Lasko, Petitioner argues that if the jury would have been properly instructed that involuntary manslaughter did not require an intent to kill, the jury likely would have found her guilty of involuntary manslaughter rather than second degree murder. The Court of Appeal held that although the trial court did improperly instruct the jury on manslaughter, the error was harmless under People v. Watson, 46 Cal.2d 818 (1956). The Court of Appeal stated that it was "not reasonably probable that a properly instructed jury would have convicted [Petitioner] of the lesser offense of voluntary manslaughter based on heat of passion rather than second degree murder." (Respondent's Lodgment No. 20 at 7.) See Watson, 46 Cal.2d at 836 (holding a conviction may be reversed for error only if "after an examination of the entire cause, including the evidence" it appears "that it is reasonably probable that a result more favorable to the appealing party would have been reached in the absence of the error"). Like the Court in Lasko, the Court of Appeal in Petitioner's case found that the jury was instructed on the difference between murder and manslaughter, that neither the prosecutor nor defense "suggested [Petitioner] was guilty of murder if she unintentionally killed Savela in a sudden quarrel or heat of passion," and that the "evidence strongly suggested an intent to kill." (Respondent's Lodgment No. 20 at 8.)
Due process demands that a jury be instructed correctly as to every essential element of the offense and burden of proof.United States v. Gaudin, 515 U.S. 506, 522-23 (1995); Osborne v. Ohio, 495 U.S. 103, 122-24 (1990). A failure to instruct on a recognized defense to the charge violates due process. Mathews v. United States, 485 U.S. 58, 63 (1980). Errors of federal constitutional magnitude are reviewed for prejudice underChapman v. California, 386 U.S. 18, 24 (1967). Under Chapman, a conviction will be reversed only if the error was not "harmless beyond a reasonable doubt." Id. The question this Court must address is whether the state court unreasonably concluded that the error was harmless.
Under the Chapman standard, the state court could have properly found the error was harmless beyond a reasonable doubt. The jury was instructed on the difference between murder and manslaughter. In order for the jury to have found the Petitioner guilty of manslaughter, regardless of her intent to kill, the jury would have had to find that she acted without malice. The jury was instructed that if it found she acted in the heat of passion, she did not act with malice, and therefore the Petitioner could not be found guilty of murder, but only the lesser offense of manslaughter. Since the jury convicted Petitioner of second degree murder, it necessarily found she did not act in the heat of passion. Therefore, regardless of Petitioner's intent, since the jury rejected Petitioner's heat of passion defense, it could not have found her guilty of manslaughter, either voluntary or involuntary.
The Court instructed the jury as follows:
The distinction between murder and manslaughter is that murder requires malice while manslaughter does not. When the act causing the death, though unlawful, is done in the heat of passion or is excited by a sudden quarrel that amounts to adequate provocation, the offense is manslaughter. In that case, even if an intent to kill exists, the law is that malice, which is an essential element of murder, is absent.
To establish that a killing is murder and not manslaughter, the burden is on the People to prove beyond a reasonable doubt each of the elements of murder and that the act which caused the [death] was not done in the heat of passion or upon a sudden quarrel. (Respondent's Lodgment No. 17 at 2700.)
Once the jury rejected the Petitioner's heat of passion defense, it was left to determine whether the Petitioner was guilty of first degree or second degree murder. The jury was instructed on the difference between first and second degree murder. For first degree murder, the jury had to find premeditation and deliberation. The jury convicted Petitioner of second degree murder, which indicates that it rejected that Petitioner premeditated and deliberated, but that she had the intent to kill. Petitioner contends that if the jury determined she lacked intent to kill, the only option it had was to convict her of second degree murder because it did not receive a proper involuntary manslaughter instruction. However, Petitioner overlooks the possibility that had the jury found she lacked intent to kill, it could have convicted her of vehicular manslaughter. The court instructed the jury on vehicular manslaughter: "Every person who drives a vehicle in a grossly-negligently manner and unintentionally but unlawfully kills another human being is guilty of the crime of vehicular manslaughter not involving drugs or alcohol with gross negligence." (Respondent's Lodgment No. 17 at 2701.) (emphasis added). Therefore, intent was not required to find Petitioner guilty of vehicular manslaughter.
The Court instructed the jury as follows:
All murder which is perpetrated by any kind of willful, deliberate and premeditated killing with express malice aforethought is murder of the first degree.
. . .
Murder of the second degree is the unlawful killing of a human being with malice aforethought when the perpetrator intended unlawfully to kill a human being but the evidence is insufficient to prove deliberation and premeditation.
(Respondent's Lodgment No. 17 at 2695-97.) (emphasis added.)
The jury rejected manslaughter. That combined with the fact that neither the prosecutor nor the defense argued that Petitioner was guilty of murder if she unintentionally killed in heat of passion, and the strong evidence that Petitioner did have an intent to kill, this Court finds that the state court reasonably concluded that the error was harmless beyond a reasonable doubt. Therefore the Court recommends that Petitioner's claim in this regard be DENIED.
2. Ineffective Assistance of Counsel
The clearly established United States Supreme Court law governing ineffective assistance of counsel claims is set forth in Strickland v. Washington, 466 U.S. 668 (1984). See Williams, 529 U.S. at 391 (stating it is beyond question thatStrickland is the "clearly established" law governing ineffective assistance of counsel claims); see also Baylor v. Estelle, 94 F.3d 1321, 1323 (9th Cir. 1996); Jones v. Wood, 114 F.3d 1002, 1013 (9th Cir. 1997).
To prove a claim of ineffective assistance of counsel, Petitioner must show that her attorney's representation fell below an objective standard of reasonableness and that she was prejudiced by demonstrating a reasonable probability that but for her counsel's errors, the result of the proceeding would have been different. Strickland, 466 U.S. at 694. "The result of a proceeding can be rendered unreliable, and hence the proceeding itself unfair, even if the errors of counsel can not be shown by a preponderance of the evidence to have determined the outcome."Id. at 694. The Court need not address both the deficiency prong and the prejudice prong if the defendant fails to make a sufficient showing of either one. Id. at 697. The Ninth Circuit has rejected the notion that, in addition to Strickland's prejudice requirement, habeas courts must conduct a standard harmless-error review of any Strickland violations underBrecht v. Abrahamson, 507 U.S. 619, 637 (1993). Jackson v. Calderon, 211 F.3d 1148, 1154 n. 2 (9th Cir. 2000). "TheStrickland prejudice analysis is complete in itself; there is no place for an additional harmless-error review." Id. [citingBaylor v. Estelle, 94 F.3d 1321, 1325 (9th Cir. 1996)]
(a) Failure to Argue Heat of Passion or Involuntary Manslaughter
Petitioner argues that she was denied effective assistance of counsel because her trial attorney failed to argue that she acted in the heat of passion or that she should be convicted of involuntary manslaughter. Respondent argues that given the strength of the evidence against Petitioner, arguing that she acted in the heat of passion or that she should be convicted of involuntary manslaughter would not have benefitted her case. Respondent urges the state courts' rejections of this claim were not unreasonable.
In denying Petitioner's habeas petition, the Superior Court stated:
[B]ased upon the clear facts of the case, arguing a heat of passion defense would not have changed the outcome of the trial in any way. Therefore, counsel could not have been ineffective if he chose not to pursue that argument.
(Respondent's Lodgment No. 23 at 3).
Likewise the Court of Appeal stated:
As noted on appeal, the judge instructed the jury on heat of passion while explaining the differences between murder and manslaughter. [Petitioner] testified the killing was accidental, the jury rejected that defense and found [Petitioner] was guilty of the greater crime of murder. Given the over-whelming evidence supporting the second degree murder conviction, any alternative argument by defense counsel would have been fruitless.
(Respondent's Lodgment No. 25 at 2.)
The decision by Petitioner's trial counsel to not argue that she acted in the heat of passion or that she should be convicted of involuntary manslaughter does not amount to an unprofessional error of judgment. Rather, it is a legitimate tactical approach to keep a jury focused on one particular defense theory. A federal habeas court must apply a "heavy measure of deference" in scrutinizing counsel's tactical decisions. Strickland at 691. In a jury trial where the main defense is that the client did not commit the crime, it would weaken that defense to present evidence that the client did commit the crime but had some justifiable excuse. A jury may very well see only the inconsistencies in the defense theories, and decide that neither theory is true. While other counsel might have used a different strategy and argued different theories of defense, Petitioner's trial counsel cannot be faulted for his decision to try to convince the jury that Savela's death was an accident.
Even assuming that counsel made a professionally unreasonable error in not arguing heat of passion or involuntary manslaughter, which he did not, this Court still finds the Petition fails to satisfy the "prejudice" prong of the Strickland test. To show "prejudice" under Strickland:
The defendant must show that there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome.Strickland, 466 U.S. at 694.
The evidence produced at trial was adequate for a jury to find that Petitioner intentionally drove her car into Saleva. The evidence documented that Petitioner threatened to kill Savela on numerous occasions. On September 13, 1998, Petitioner drove into Savela and crushed him against a guard rail. The evidence indicated she drove her car in a manner which suggested she intentionally hit him. Petitioner claimed it was an accident. The jury chose not to believe Petitioner's version of the facts. One can reasonably conclude, under the circumstances, that Petitioner intentionally drove her car into Savela. Accordingly, this Court finds that Petitioner has not shown that the failure to argue heat of passion or involuntary manslaughter prejudiced the trial such that the result would have been different. Furthermore, the trial judge instructed the jury on heat of passion. (Respondent's Lodgment No. 17 at 2698-2701.) Therefore the Court recommends that Petitioner's claim in this regard be DENIED.
The Court also notes the defense did mention heat of passion in closing argument. The defense stated:
But if you believe, as the prosecution says, that she was just insanely jealous over him going back to Janice, that is he just — she just couldn't stand it, well then you really have to consider sudden quarrel or heat of passion, that element of human emotion that mitigates from second degree to voluntary manslaughter. (Respondent's Lodgment No. 17 at 2639.)
(b) Failure to Object to Prosecutorial Misconduct
Petitioner argues that she was denied effective assistance of counsel because her trial attorney failed to object to prosecutorial misconduct. Petitioner asserts her counsel should have objected to (1) the prosecutor's questioning of defense experts as to the fees they charged and (2) to the prosecution's argument that Petitioner was a liar. Respondent argues the state courts properly rejected these claims, and further asserts that the claim regarding the defense experts' compensation does not present a federal question. (i) Questioning of Defense Experts
The Superior Court stated:
[E]specially based upon the clear evidence presented in the case, it is not clear how (1) these questions prejudiced Petitioner's case; and (2) how not objecting to them had any effect on the jury's ultimate decision . . . In the present petition, Petitioner has failed to show . . . that asking about expert fees did anything to influence the jury.
(Respondent's Lodgment No. 23 at 4.)
The Court of Appeal stated:
[Petitioner] now claims her trial attorney should have objected when the prosecutor questioned her experts on the amount of fees they were paid. She argues the questions were meant to bias the jury against her because she could afford to hire her own experts `as an intention to buy justice.' Evidence Code section 722, subdivision (b), provides `[t]he compensation and expenses paid or to be paid to an expert witness by the party calling him is a proper subject of inquiry by any adverse party as relevant to the credibility of the witness and the weight of testimony.' The inquiry was proper. [Petitioner] also claims the prosecutor improperly called her a liar, without reference to the record. [Petitioner] testified at trial and the People may comment on her credibility.
(Respondent's Lodgment No. 25 at 1.)
A state's interpretation of its laws or rules provides no basis for federal habeas corpus relief because no federal constitutional question arises. Estelle v. McGuire, 502 U.S. 62, 68 (1991). California Evidence Code § 722(b) allows the prosecutor to ask defense expert witnesses about compensation. [(Cal. Evid. Code § 722(b)]. The rationale of the rule is that because of "[t]he tendency of some experts to become advocates for the party employing them . . . (t)he jury can better appraise the extent to which bias may have influenced an expert's opinion if it is informed of the amount of his fee." [Comment following Cal. Evid. Code § 722(b)]. The Court of Appeal interpreted the scope of Cal. Evid. Code § 722(b), and found that the prosecutor's questions were proper. Thus Petitioner's claim does not present a federal question.
Had the Petitioner's counsel raised the objection, it would have been baseless because evidence concerning compensation paid to expert witnesses is admissible under Cal. Evid. Code § 722(b). Even "[a]n attorney's failure to object to inadmissible evidence is not necessarily ineffective." Morris v. California, 966 F.2d 448, 456 (9th Cir. 1991) cert. denied 506 U.S. 831 (1992) (emphasis added). Therefore, counsel's representation did not fall below an objective standard of reasonableness, and the failure to object did not amount to an unprofessional error of judgment. Strickland, 466 U.S. at 694. Even assuming counsel made an unreasonable error, which he did not, the Petitioner failed to demonstrate how her counsel's failure to raise the objection caused prejudice. Strickland, 466 U.S. at 694. Given the weight of the evidence against Petitioner in the case, this Court finds the Court of Appeal's decision was not unreasonable. Therefore the Court recommends that Petitioner's claim in this regard be DENIED.
(ii) Statements that Petitioner was a Liar
Petitioner also alleges ineffective assistance of counsel because her attorney did not object to the prosecutor's statements that the Petitioner was a liar, which were made during cross examination of the defense experts. Petitioner does not offer any citation to the record in relation to this claim. However, the Court notes the following exchanges between the prosecutor and the defense expert witnesses:
Prosecutor's cross examination of Mark Mills, J.D., M.D.:
Q: So for example, faking on the MMPI might involve reporting more extreme feelings than one actually felt?
A: Right . . . if she actually were perceived to be psychotic, that theoretically could give rise to a not guilty by reason of insanity defense. Clearly, this test, my evaluation, et cetera, does not demonstrate she's psychotic, but had she been, one could have raised that.
MMPI is the abbreviation for Minnesota Multiphasic Personality Inventory.
Q: But a person could lie on the MMPI?
A: They could. It would be pretty hard to do it successfully because the — as I said on my direct, briefly, so many of the items don't have an obvious right answer or wrong answer, and it's — people who lie tend to pick very extreme things to lie about and then it looks like they are faking bad . . .
Q: So what that might look like is reporting exaggerated symptoms on some questions?
A: Right.
. . .
Q: As you sit here today, though, you can't say with 100 percent certainty that she wasn't exaggerating her answers on purpose in order to malinger?
A: Well, I can say with 100 percent certainty that she wasn't exaggerating her answers overall on purpose in order to malinger. And I can say her answers don't appear exaggerated. I can't say with 100 percent certainty that on a few of those items at the back portion of the test she didn't exaggerate, that's correct.
(Respondent's Lodgment No. 11 at 1218-19, 1223.)
Prosecutor's cross examination of Glen Lipson, Ph.D.:
Q: She could have lied to you about that?
A: Yes, she could have lied to me about that.
Q: That's something that possibly her first boyfriend in Taiwan did to her and she attributed it to Mr. Savela; Right?
Defense: Objection. Speculation.
Court: overruled.
A: I did not see that sort of confusion that took place between different relationships. And what I also try to build into an evaluation is checks in terms of veracity for things she does tell me, and what I can verify, usually I found she was being truthful with me.
Q: All Right. Well, I'm not talking about confusion. Let me just make that clear. It's possible she lied about it; isn't it?
. . .
Q: What's malingering, Dr. Lipson?
A: Malingering is a DSM diagnosis. It also refers in general context to someone feigning or faking . . . malingering generally deals with the assumption of some type of mental illness which someone fakes in order to accomplish something.
. . .
Q: Okay. Well, lets just talk about it in terms of motivation, then. You made it very clear, I assume, to Ms. Liu that what she told you could all come back and be related to a jury in a courtroom; right?
A: Correct.
Q: At her murder trial; right?
A: Correct.
Q: And you would agree that she had very possibly a motive to paint herself in as favorable a light as possible, true? I'm sorry. Just true or false, she had the motive.
A: She may have tried to paint herself in favorable light or had that motive, but that wasn't my experience of what she was trying to do.
. . .
Q: Sometimes people charged with crimes are less than honest with you; isn't that correct?
A: That's correct. A fair number of them are.
Q: Especially when they have a lot to gain by not telling you the truth?
(Respondent's Lodgment No. 14 at 1842-45.)
From the prosecutors closing argument:
She can say anything she wants about Bob because Bob's not here to defend himself . . . She has a tremendously large motivation to make Bob sound as bad as possible. (Respondent's Lodgment No. 17 at 2653.)
Now, we don't know whether she confabulated that later or whether she is simply lying now, but the bottom line is she didn't say it here [in police interview] so there was no way to know that was going to be her testimony until she got up on that witness stand.
(Respondent's Lodgment No. 17 at 2668-69.)
The Court of Appeal held that the prosecutor could comment on the Petitioner's credibility because she testified at trial. (Respondent's Lodgment No. 25 at 1.) "It is not misconduct for the prosecutor to argue reasonable inferences based on the record." United States v. Atcheson, 94 F.3d 1237, 1244 (9th Cir. 1996). Here, the prosecutor's statements were made based on evidence submitted at trial. The prosecutor's statements asked the jury to draw a reasonable inference that the Petitioner may have had motivation to be dishonest. Furthermore, "[a] prosecutor may express doubt about the veracity of a witness's testimony."United States v. Cabrera, 201 F.3d 1243, 1259 (9th Cir. 2000).See also United States v. Birges, 723 F.2d 666, 672 (9th Cir. 1984) ("It is neither unusual nor improper for a prosecutor to voice doubt about the veracity of a defendant who has taken the stand."); United States v. Nash, 115 F.3d 1431, 1439 (9th Cir. 1997) ("The prosecutor's statement that [defendant] lied during his testimony is also a proper basis for government argument."); and United States v. Molina, 934 F.2d 1440 (9th Cir. 1991) ("In a case that essentially reduces to which of two conflicting stories is true, it may be reasonable to infer, and hence to argue, that one of the two sides is lying."). The Court of Appeal properly found that the prosecutor's comments about the Petitioner's credibility were permissible. Since the statements are permissible, it was not objectively unreasonable that counsel failed to object to them.
The Court notes that unsupported conclusory allegations that an attorney's performance was substandard are not sufficient to show prejudice. United States v. Popoola, 881 F.2d 811, 813 (9th Cir. 1989). Even assuming the prosecutor's statements constituted misconduct and Petitioner's counsel unreasonably failed to object, Petitioner has not established that she was prejudiced by such failure. The prosecutor's comments were brief, and there is no reasonable probability that but for the above-noted comment, "the result of the proceeding would have been different."Strickland, 466 U.S. at 694. The Court of Appeal found that the Petitioner was not entitled to relief, and this Court does not find that decision to be unreasonable. Therefore the Court recommends that Petitioner's claim in this regard be DENIED.
(c) Failure to Object to Joining of the Stalking and Murder Charges
Petitioner argues that she was denied effective assistance of counsel when her trial attorney failed to object to the murder and the stalking counts being tried together, because the stalking charge "lightened" the prosecution's burden of proof. Respondent argues Petitioner has failed to present a federal question. Respondent argues California Penal Code § 954 allows the counts to be tried together, and that because § 954 controls, the Court of Appeal did not unreasonably reject Petitioner's claim.
With respect to this claim, the Court of Appeal stated:
[Petitioner] also claims her trial attorney should have objected to the counts being tried together because the stalking charge `prejudiced' the murder charge and `lightened' the People's burden of proof. Penal Code section 954 provides `[a]n accusatory pleading may charge two or more different offense connected together in their commission. . . .' The stalking and murder were connected in their commission and the evidence would have been cross-admissible had the crimes been tried separately, thus [Petitioner] cannot show prejudice by one trial.
(Respondent's Lodgment No. 25 at 1-2) (citation omitted).
California law provides that the two counts may be tried together. See Cal. Penal Code § 954. The Court of Appeal found that the stalking and murder charges were properly tried together pursuant to § 954. Because a state's interpretation of its laws or rules provides no basis for federal habeas corpus relief, this claim does not present a federal question. See Estelle v. McGuire, 502 U.S. 62, 68 (1991).
California Penal Code section 954 states with added emphasis:
An accusatory pleading may charge two or more different offenses connected together in their commission, or different statements of the same offense or two or more different offenses of the same class of crimes or offenses, under separate counts, and if two or more accusatory pleadings are filed in such cases in the same court, the court may order them to be consolidated. The prosecution is not required to elect between the different offenses or counts set forth in the accusatory pleading, but the defendant may be convicted of any number of the offenses charged, and each offense of which the defendant is convicted must be stated in the verdict or the finding of the court; provided, that the court in which a case is triable, in the interests of justice and for good cause shown, may in its discretion order that the different offenses or counts set forth in the accusatory pleading be tried separately or divided into two or more groups and each of said groups tried separately. An acquittal of one or more counts shall not be deemed an acquittal of any other count.
Since state law allows the offenses to be tried together, trial counsel's failure to raise the objection was not deficient performance. Even assuming counsel made a professionally unreasonable error, the Petitioner has failed to show how joinder of the counts was prejudicial. "The simultaneous trial of more than one offense must actually render petitioner's state trial fundamentally unfair and hence, violative of due process before relief pursuant to 28 U.S.C. § 2254 would be appropriate." Bean v. Calderon, 163 F.3d 1073, 1084 (9th Cir. 1998). The following factors are considered in determining whether the Petitioner was prejudiced by joining the counts: (1) lack of cross-admissibility of evidence from one charge to the other; (2) a weaker charge being joined with a stronger one; (3) the disparity between the amount of evidence supporting guilt of the joined offenses; and (4) whether one charge has a tendency to inflame the passions of the jury. Bean, 163 F.3d at 1084-86.
The Court of Appeal found the commission of the offenses were connected and that the evidence would have been cross-admissible had the charges been severed. The court concluded that one trial did not prejudice Petitioner. (Respondent's Lodgment No. 25 at 1-2.) Given the connection between the offenses, and the weight of the evidence against the Petitioner for both charges, this court does not find the Court of Appeal's decision was unreasonable. Accordingly, the Court recommends that Petitioner's claim in this regard be DENIED.
(d) Ineffective Assistance of Appellate Counsel
Petitioner argues she was denied effective assistance of appellate counsel because her attorney failed to "federalize" arguments made to the California Supreme Court in the Petition for Review. Petitioner alleges that although her appellate counsel argued the Lasko error was prejudicial, counsel did not claim the error was of federal constitutional dimension. Petitioner asserts that appellate counsel improperly relied on California's standard harmless-error rule found in People v. Watson, 46 Cal.2d 818 (1956), rather than the federal constitutional standard found in Chapman v. California, 386 U.S. 18 (1967). Respondent argues Petitioner has failed to show how she was prejudiced, and asserts the claim is without merit.
Under Watson, the test for prejudice is whether it is "reasonably probable that the defendant would have obtained a more favorable outcome had the error not occurred." People v. Watson, 46 Cal.2d 818, 836 (1956).
Under Chapman, error is reversible unless it is found to be "harmless beyond a reasonable doubt." Chapman v. California, 386 U.S. 18, 24 (1967).
The clearly established United States Supreme Court law governing ineffective assistance of appellate counsel is set forth in Smith v. Robbins, 528 U.S. 259, 285 (2000) ("The proper standard for evaluating [a] claim that appellate counsel was ineffective . . . is that enunciated in Strickland v. Washington) (citing Smith v. Murray, 477 U.S. 527, 535-36 (1986)). A petitioner must first show that his appellate counsel's performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 688. It must then be established that Petitioner was prejudiced by counsel's errors.Id. at 694. To establish prejudice, a petitioner must demonstrate that he would have prevailed on appeal absent counsel's errors. Smith, 528 U.S. at 285. Thus, to establish ineffective assistance of her appellate counsel, Petitioner must show that she would have prevailed in the state court had the California Supreme Court examined the claim under the Chapman standard. As noted in section V(1) of this Report and Recommendation, Petitioner's claim is not meritorious. Since Petitioner's claim regarding the involuntary manslaughter instruction is without merit, appellate counsel's failure to "federalize" the claim on appeal was not deficient performance.
Even assuming that appellate counsel acted unreasonably in failing to "federalize" the involuntary manslaughter jury instruction claim, Petitioner has not established she was prejudiced by that failure. Moreover, this Court granted Petitioner's Motion for Stay and Abeyance, in order to allow Petitioner to present the federalized claim to the California Supreme Court. Petitioner presented the claim to the California Supreme Court. The California Supreme Court denied the claim. Therefore, the Court recommends that Petitioner's claim in this regard be DENIED.
3. Prosecutorial Misconduct
Petitioner argues that the prosecutor committed misconduct in several ways. Without specific citation to the record, Petitioner contends the prosecutor (a) appealed to wealth and class bias; (b) attacked defense experts on the basis of fees they were paid; (c) argued to the jury that Petitioner was "buying justice" by paying experts and being "educated;" (d) argued the defense expert sitting in the court room was improper; (e) argued that Petitioner was a liar; (f) implied that there was additional inculpatory evidence regarding a school counselor who Petitioner had contacted years before and that the counselor would tell the truth because she was not being paid; and (g) injected personal beliefs into final argument. Respondent contends that Petitioner's prosecutorial misconduct claim is procedurally defaulted.
Procedural Default
A federal court is precluded from reviewing the merits of a claim if a state court clearly denied relief on a state law ground that is independent of federal law and adequate to support the judgment. Coleman v. Thompson, 501 U.S. 722, 729-32 (1991). The adequate and independent doctrine has been extended to federal habeas actions. Id. at 731. A state procedural rule constitutes an independent bar if it is not interwoven with federal law or dependant upon a federal constitutional ruling.Ake v. Oklahoma, 470 U.S. 68, 75 (1985). A state procedural rule constitutes an adequate bar to federal court review if it was "firmly established and regularly followed" at the time it was applied by the state court. Ford v. Georgia, 498 U.S. 411, 423-24 (1991).
Respondent argues that the prosecutorial misconduct claims are procedurally barred because the Superior Court denied Petitioner's claims with a citation to In re Dixon, 41 Cal.2d 756, 759 (1953). Respondent contends that under current California State law, the citation to the Dixon rule, barring habeas relief for claims which could have been raised on direct appeal but were not, is an independent and adequate state court rule barring federal review. However the Superior Court's denial also included citation to In re Waltreus, 62 Cal.2d 218, 255 (1965). (Respondent's Lodgment No. 23 at 4.) The Ninth Circuit has found that "[a]Waltreus citation does not bar federal review." Calderon v. Bean, 96 F.3d 1126, 1131 (9th Cir. 1996); see also Forrest v. Vasquez, 75 F.3d 562, 564 (9th Cir. 1996) (stating "aWaltreus denial on state habeas has no bearing on [the petitioners] ability to raise a claim in federal court."). Since the Superior Court partially relied on precedent that would not bar federal review, this Court will assume Petitioner's claim is not procedurally defaulted and will therefore address the merits of the prosecutorial misconduct claims.
Prosecutorial Misconduct
To establish a claim of prosecutorial misconduct, a petitioner must show: (1) the prosecutor's actions amounted to constitutional error; and (2) the error was not harmless. Greer v. Miller, 483 U.S. 756, 765-66 (1987). In determining whether there was constitutional error, the Supreme Court has stated that the misconduct must have "so infected the trial with unfairness as to make the resulting conviction a denial of due process."Darden v. Wainwright, 477 U.S. 168, 181 (1986) (quotingDonnelly v. DeChristoforo, 416 U.S. 637, 643 (1974)); see also Thompson v. Borg, 74 F.3d 1571, 1577 (9th Cir. 1996) (citing Darden 477 U.S. at 168). The "touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor."Smith v. Phillips, 455 U.S. 209, 219 (1982). The reviewing court must look at the trial as a whole and place the prosecutor's remarks in context. See Greer, 483, U.S. at 765-66.
The California Court of Appeal did not address Petitioner's prosecutorial misconduct claim on direct review because she did not raise it. (Respondent's Lodgment No. 20 at 1-2.) The San Diego Superior Court did not address the prosecutorial misconduct claim in its order denying Petitioner's habeas corpus Petition. The court held it would not consider the claim because the Petitioner had the opportunity to raise the issue on direct appeal, but did not. (Respondent's Lodgment No. 23 at 4-5.) The Court of Appeal also did not address the issue in its denial of Petitioner's habeas corpus claim. (Respondent's Lodgment No. 25 at 1-2.) Petitioner did raise the prosecutorial misconduct claim in her Petitioner for Writ of Habeas Corpus to the California Supreme Court. However the court denied the Petition without citation to authority or analysis. (Respondent's Lodgment No. 28.) Because there is no reasoned state court decision to which this Court can "look" from the California Supreme Court's denial, this Court must independently review the record and determine whether the state court's decision was objectively unreasonable.Ylst, 501 U.S. at 803; Delgado, 223 F.3d at 981-82.
(a) Appeal to Wealth and Class Bias
Petitioner argues that the prosecutor appealed to wealth and class bias. In the prosecutor's closing argument she stated:
In the Petition to this Court, Petitioner did not specifically cite nor refer to the record in order to support her claims. However in her Petition to the California Supreme Court, Petitioner did occasionally cite to the record. In addition to an independent review of the record, this Court takes note of Petitioner's citation to the record in her Petition to the California Supreme Court.
If you do the math on these experts and you go back and figure out what they cost, what the defense had in this case was a year and a half and a defense expert budget of over $50,000.
(Respondent's Lodgment No. 17 at 2647-48.)
They had three different psychological psychiatric experts get in here, very expensive psychological and psychiatric experts get in here and to say what? To say what? I mean, Mark Mills was up to $12,500, at the time that he got here. His extra three hours in court got him up to $14,000. Glen Lipson, another $14,000 and Akiko Mikamo about $7,000. All of that to say that this extraordinary, scary, violent conduct isn't violent. Okay. I guess money talks.
(Respondent's Lodgment No. 17 at 2661.)
So why didn't the prosecution call experts? Why would we? Why spend that kind of money when you can get that kind of information out of the defense?
(Respondent's Lodgment No. 17 at 2662.)
Appeals to wealth and class bias are improper. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 239-240 (1940). However, such statements made by the prosecutor will not amount to prejudicial error unless the appeal to wealth or class bias so poisons the minds of the jurors "that they would not appraise the evidence objectively and dispassionately." Id. "[W]here . . . the record convinces us that these statements were minor aberrations in a prolonged trial and not cumulative evidence of a proceeding dominated by passion and prejudice, reversal would not promote the ends of justice." Id. See also United States v. Little, 753 F.2d 1420, 1441 (9th Cir. 1984) (holding infrequent references to wealth do not constitute misconduct and do not require reversal).
In United States v. Stahl, 616 F.2d 30 (2nd Cir. 1980) the Court held a prosecutor's calculated and persistent efforts to arouse prejudice against the defendant based on his wealth, required reversal. In Stahl, the defendant had a high net worth and was charged with conspiracy and aiding and abetting the bribery of a government employee. Id. at 30. During the trial, the prosecutor made statements that were not supported by the evidence and repeatedly referred to the defendant's wealth. Id. at 32. The Court in Stahl also noted that proof of guilt was not overwhelming. Id. at 33. The Ninth Circuit distinguishedStahl in United States v. Kessi, 868 F.2d 1097 (1989) andUnited States v. Little, 753 F.2d at 1441. In Kessi, the Court held the defendant was not prejudiced by the prosecutor's reference to his wealth and lifestyle where the prosecutor introduced the evidence only to rebut his defense. Kessi, F.2d at 1107. The Court found the evidence of wealth was relevant and discrete. Id. Likewise, the Court in Little held there was no prosecutorial misconduct where the prosecutor made only two references to money and greed as the defendant's motivation for conspiring to commit tax fraud. Little, 753 F.2d at 1441.
Here, the prosecutor did not persistently appeal to class bias, nor introduce irrelevant evidence of wealth. The prosecutor's comments were made in reference to the Petitioner's defense strategy, and in particular, to point out the defense experts' potential bias in favor of Petitioner, who had paid them a substantial amount of money for their testimony. The prosecutor's statements were supported by the evidence submitted at trial. The amount paid to defense experts was a proper subject of inquiry on direct and cross examination. Thus, the references to the amount the Petitioner paid her experts did not constitute misconduct. Even assuming the prosecutor's comments were improper, they did not prejudice the Petitioner. The statements were minor and infrequent. Placing the comments in the context of the entire trial, there was ample evidence to convict the Petitioner. Therefore, the Court recommends that Petitioner's claim in this regard be DENIED.
See supra Section V.2. (b) (i).
(b) Impeachment of Defense Experts Based on Fees
Petitioner argues that the prosecutor improperly attacked defense experts on the basis of their fees. As previously discussed, the prosecutor may ask on cross examination how much an expert is being paid. The prosecutor's inquiry was permissible, therefore the Court recommends that Petitioner's claim in this regard be DENIED.
See supra Section V.2(b)(i).
(c) Argument that Petitioner was "Buying Justice" by Paying Experts and Being "Educated"
Petitioner claims the prosecutor improperly argued to the jury that the Petitioner was "buying justice" by paying experts and being "educated." In the prosecutor's closing statement she stated:
So what the defense had was over $50,000 and a year and a half to come up with something, something that would account for all these facts . . . There's some stuff they can't get around. So they had all this money and this time to come up with something that fit.
(Respondent's Lodgment No. 17 at 2648.)
Okay. Now let's talk about this pedal error theory, and when I call it the $14,000 pedal error theory, that $14,000 is arrived at by adding up van der Heever, McGrath and Plourd's combined salaries so far to date for this particular case. How did we get to pedal error? How did we get to that? Well, as I think I said earlier, it's the first thing you would think of — it's the first thing you would think of as soon as you hear somebody crashed into somebody.
(Respondent's Lodgment No. 17 at 2663-64.)
You got to look at this stuff as a whole, folks. You should be insulted that they are presenting this so you, as a theory you should believe, because there is nothing reasonable about it. They had a year and a half to say we got to come up with something that fits what we're stuck with. This is what they came up with, but this is not a reasonable version.
(Respondent's Lodgment No. 17 at 2676.
And to get to these fourth and fifth options — and the defense will be pushing you hard to do this — you have to conclude that she had no intention to kill and that all she was negligent . . . In other words, you have to throw out every single thing you know about [the Petitioner] because she is a smart, intelligent, educated woman. She speaks three languages. She's fully Westernized. She was married to Warren Given as of 1986. She had been with Bob Savela since 1995. You'd have to throw all that out, basically, and conclude she was the world's dumbest person and that she thought that just driving after him in the parking lot to get him back in the car was the right way to go here.
(Respondent's Lodgment No. 17 at 2513.)
It is misconduct for the prosecutor to call the defense a "sham" or "scam" directly. United States v. Sanchez, 176 F.3d 1214, 1224-25 (9th Cir. 1999). In Sanchez, the Court held the prosecutor committed misconduct by denigrating the defense as a sham. In closing argument the prosecutor stated "And ladies and gentlemen, I'm going to ask you not to credit that scam that has been perpetrated on you here" Id. However, "the prosecution must have reasonable latitude to fashion closing arguments. Inherent in this latitude is the freedom to argue reasonable inferences based on the evidence." United States v. Molina, 934 F.2d at 1445. It is not misconduct for the prosecutor to use less derogatory language to comment on the plausibility of a defendant's testimony. See Birges, 723 F.2d at 671 n. 2, 672 (holding it was not misconduct for prosecutor to refer to defendant's duress claim as a "fabrication").
Here, the prosecutor's comments differ from those made inSanchez. The prosecutor did not call the Petitioner's defense a scam. Rather the prosecutor implied that the Petitioner's defense was not reasonable given the evidence in the case. The prosecutor referred to the fact that the defense experts were paid in order to imply that the defense theory was potentially biased. The comment that the Petitioner was a sophisticated individual, as evidenced by her education, was used to argue that her version of the facts was not reasonable. Further, the prosecutor's statements were not as harsh as those in Birges; the prosecutor stated only that the defense theory was not reasonable. Thus, the prosecutors arguments were permissible.
Even assuming the prosecutor's statements were improper, they did not prejudice the Petitioner. The evidence against the Petitioner was strong. Further, any prejudice to the jury that arose from the prosecutors comments was neutralized by the Judge's reminder that "you should not be incensed or insulted by any theory that is put forward to you by either side. Consider it as argument by both sides and consider it for the value that i[t] has for you in your decision-making." (Respondent's Lodgment No. 17 at 2679.) Subsequent jury instructions emphasizing the jury is to decide which interpretation of the evidence is reasonable were given, as well as an instruction that attorney argument is not evidence. ( See Respondent's Lodgment No. 17 at 2681, 2683-84.) Therefore, the Court recommends that Petitioner's claim in this regard be DENIED.
(d) Argument that Defense Expert Sitting in Courtroom was Improper.
Petitioner claims that the prosecutor's argument that the defense expert sitting in the court room was improper. Petitioner's claim is unclear. The Court assumes that the Petitioner's claim refers to the prosecutor's closing argument. However, upon review of the trial record, this Court does not find the prosecutor made a statement to this effect during her closing argument. The Court notes that during cross examination the prosecutor asked one of the defense experts if he had watched others testify. The following exchange occurred between the prosecutor and Glen Lipson, Ph.D.:
Q: Did you get paid $175 an hour for those?
A: Yes, I was paid $175 for everything that I've done on the case, for every hour I've put in.
Q: You've also spent some time here in court, watching the testimony of others?
A: Correct.
Q: You've watched her testify?
A: In part I watched her testify. Not the whole testimony
Q: Did you watch anybody else testify? You watched Mr. Given this morning, right?
A: Yes.
Q: Anybody else?
A: The former criminalist
Q: Mr. Whalley?
A: Mr. Whalley.
Q: Okay. You weren't here when Dr. Mills testified; right?
A: No, I was not here.
Q: How many hours have you spent watching the testimony of others in this case?
A: Oh, maybe six hours.
(Respondent's Lodgment No. 14 at 1814-15.)
The prosecutor did not argue that it was improper for the expert to sit in the courtroom. Rather, it appears the prosecutor was attempting to establish the total amount of the expert's fee. As noted previously, inquiring about the fees paid to expert witnesses is proper. Therefore, the Court recommends that Petitioner's claim in this regard be DENIED.
(e) Prosecutor argued Petitioner was a Liar
Petitioner claims that the prosecutor improperly argued Petitioner was a liar. As previously discussed, the prosecutor may comment on the Petitioner's credibility because she testified at trial. Therefore, the Court recommends that Petitioner's claim in this regard be DENIED.
See supra Section 2(b)(ii).
(f) Comment About School Counselor
Petitioner argues that the prosecutor implied there was additional inculpatory evidence regarding a school counselor whom Petitioner had contacted years before, and that the defense failed to call the counselor because she would tell the truth if called since she was not being paid. In closing argument the prosecutor stated:
You heard Glen Lipson say we have a baseline measurement. She went to counseling back in 1996 and was told by somebody back then she was fine, not borderline and all this stuff. Where was that person? Now that would have been an interesting person to have heard from, not somebody who got hired later and got paid a bunch of money to come in, but somebody who had some actual baseline information on [Petitioner]. Where was that person? Not called by the defense, that's for sure.
(Respondent's Lodgment No. 17 at 2663.)
It is improper for the prosecutor in closing argument to refer to inculpatory evidence not produced at trial. United States v. Molina, 934 F.2d 1440, 1445-46 (9th Cir. 1991). Here, the prosecutor was not stating that additional inculpatory evidence existed, but rather the prosecutor was commenting that the Petitioner did not call a witness who had knowledge about her defense. "[A] prosecutor may properly comment upon the defendant's failure to present exculpatory evidence, as long as it is not phrased to call attention to defendant's own failure to testify." United States v. Mende, 43 F.3d 1298, 1301 (9th Cir. 1995) (citations omitted). The Mende court concluded that the prosecutor was commenting on the defendant's failure to subpoena witnesses to supply defense evidence. See also United States v. Garcia-Guizar, 160 F.3d 511, 521 (9th Cir. 1998) (holding statement was not improper where "the prosecutor was not implying that there was extrinsic evidence . . . Instead the prosecutor argued that the lack of evidence supporting [Defendant's] story should be interpreted as demonstrating his lack of credibility."). Here, the prosecutor insinuated that the defense did not call the counselor because her testimony may not have been consistent with the testimony of Petitioner's paid experts. The Court's examination of the statement in context, leads to the conclusion that the prosecutor was commenting on the credibility of the defense experts' theory. The prosecutor was not implying that there was extrinsic evidence of guilt, but rather that the failure of the defense to call a witness who had baseline information about the Petitioner implied that Petitioner's theory lacked credibility. Viewed in this context, the prosecutor's statement was part of her explanation for why the defense theory was neither credible, nor reasonable. This falls within the prosecution's right to comment on the evidence. See Molina 934 F.2d at 1445.
Even assuming the statement was improper, it did not prejudice the Petitioner. As previously noted, there was substantial evidence of guilt, and the jury was properly instructed on weighing the credibility and reasonableness of the testimony. (Respondent's Lodgment No. 17 at 2683-90). The jury was also instructed that "[n]either side is required to call as witnesses all persons who may have been present at any of the events disclosed by the evidence or who may appear to have some knowledge of these events." (Respondent's Lodgment No. 17 at 2685). Therefore the Court recommends that Petitioner's claim in this regard be DENIED.
(g) Injected Personal Beliefs into Closing Argument
Petitioner's argues that the prosecutor injected personal beliefs into closing argument. A prosecutor may not express his or her personal opinion about the petitioner's guilt. United States v. McKoy, 771 F.2d 1207, 1210-11 (9th Cir. 1985). Petitioner has not provided the Court with specific citation to the record to support this claim. The Court having performed an independent review of the record, does not find that the prosecutor made an improper statement of personal belief. Therefore, the Court recommends that Petitioner's claim in this regard be DENIED.
VI. CONCLUSION AND RECOMMENDATION
After a review of the record in this matter, the undersigned Magistrate Judge RECOMMENDS that the Petition for Writ of Habeas Corpus be DENIED with prejudice.
This report and recommendation of the undersigned Magistrate Judge is submitted to the United States District Judge assigned to this case, pursuant to the provision of 28 U.S.C. § 636(b)(1).
IT IS ORDERED that no later than February 13, 2006, any party to this action may file written objections with the Court and serve a copy on all parties. The document should be captioned "Objections to Report and Recommendation." IT IS FURTHER ORDERED that any reply to the objections shall be filed with the Court and served on all parties no later thanMarch 13, 2006. The parties are advised that failure to file objections within the specified time may waive the right to raise those objections on appeal of the Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).