Opinion
No. C 01-03487 WHA
August 28, 2002
ORDER GRANTING PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
In his petition for a writ of habeas corpus, petitioner Timothy Charles Parle asserts that his state-court trial was rife with erroneous evidentiary rulings. He claims that these incorrect decisions violated (1) his rights under the Confrontation Clause; (2) his right to testify on his own behalf and to present a defense, and (3) his right to a fair trial comporting with due process. The California Court of Appeal agreed with petitioner that the trial judge had made several erroneous rulings. It held, however, that these errors were not prejudicial enough to warrant a new trial. This order reaches a contrary conclusion. It concludes, first, that the California Court of Appeal clearly erred in finding that admission of the victim's diary did not violate the Confrontation Clause. This order also finds that this error was seriously prejudicial to petitioner. In addition, this order holds that the cumulative effect of this and several other evidentiary errors deprived petitioner of his due process right to a fair trial. This order, however, rejects petitioner's final claim, that he was denied his right to present a defense and to testify in his own behalf. Nevertheless, even granting the substantial deference this Court must give to state criminal decisions, the finding of clear and prejudicial error on two clear-cut bases mandates issuance of a writ of habeas corpus.
At trial, petitioner referred to himself as "Charles Timothy Parle" (RT 2899). The present petition was filed on behalf of "Timothy Charles Parle," and both parties have referred to petitioner using this name. This order follows this practice.
STATEMENT
On July 7, 1997, petitioner Timothy Charles Parle was convicted of first-degree murder (Cal. Penal Code Section 187) by a Santa Clara County jury. The jury also found true the allegation that petitioner had used a deadly weapon, namely a knife, in the commission of this crime. On August 22, 1997, he was sentenced to a prison term of 25 years to life for the murder, with a consecutive one-year term for the weapon-use allegation. Petitioner is presently in state custody.
The crime at issue occurred sometime after 8:00 p.m., on December 17, 1993, when petitioner stabbed his wife, Mary, once in the back in their apartment in Santa Clara. An autopsy revealed that the fatal knife wound extended five inches into Mary's back, severing her pulmonary artery (RT 2532-33). Mary had various fresh abrasions, contusions, and marks on her body, including contusions on her neck, and marks on her forearm that resembled finger pressure marks (RT 2527-30, 2561). Mary had a superficial wound on her left hand, caused by a sharp object (RT 2530, 2555). She also had two areas of hemorrhaging on her head, indicating trauma (RT 2535). At trial, the defense conceded that petitioner had stabbed Mary (RT 3521). The principal disputed issue was petitioner's state of mind when he did so. Petitioner argued that he did not deliberate or premeditate the killing, and that the stabbing arose out of a fight that was, in his counsel's words, "probably a lot like hundreds of other fights that this couple had" (RT 3528). The prosecution, on the other hand, contended that petitioner had premeditated and deliberated upon the crime, and was guilty of first-degree murder.
At trial, both sides acknowledged that there was no way to know what, exactly, had happened on the night of the stabbing. In his closing remarks, the prosecution admitted, "as to the particular acts that occurred between the defendant and his wife, I don't think any of us could ever be certain as to everything that happened in that house" (RT 3420-21). There were only two eyewitnesses to the homicide: petitioner, and his and Mary's son, Christopher. Christopher was six years old at the time of the stabbing. Both petitioner and Christopher testified at trial; both also were interviewed by police on the night of the homicide. Neither provided consistent versions of what happened that evening.
Indeed, petitioner gave several dramatically inconsistent accounts of the incident. Upon questioning by police officers on the night of the stabbing, petitioner initially said that when he had come home that evening, he and Mary began to fight over her having taken one of his guns. Mary said she wanted a divorce. Petitioner was surprised she hadn't told him this before. Then, petitioner said, Mary hit him twice or three times with a frying pan (3 CT 39). Petitioner retreated to the bedroom; Mary cursed at him. When petitioner re-emerged, he and Mary continued to argue about a divorce. At one point, Mary threatened to shoot him (3 CT 50). Later, Mary pulled out a knife and advanced toward him with it in her hand, blade pointed toward him. Then, petitioner said, Mary told him, "If I can't get you, I'm gonna kill myself" (3 CT 53). Petitioner told the officers the next thing he saw was the knife sticking out of Mary's back ( ibid.).
As the interview progressed, petitioner's story changed. He told the officers (3 CT 73):
. . . She came after me. I felt my life was threatened. I defended myself. That's what happened and I will stick to that. She came at me with a knife. I defended myself. I have the right to defend myself. Strictly self defense. If I was gonna kill her, I wouldn't do it myself. It's too obvious. Man, that's . . . [i]t was totally in self defense. She came after me with the knife, told me she was gonna kill me and about 20 minutes before that, she told me she was gonna get the .45 revolver and blow my fuckin' brains out either tonight or tomorrow night when I'm asleep. Now I consider that a threat on my life. Wouldn't you if someone said that to you? That they're gonna blow your brains out while you're asleep with a gun. Wouldn't you consider it a threat to your life?
The officers continued to question him. Petitioner admitted that he "could've" pulled the knife out of the butcher block when he had his arms around Mary (3 CT 124). He said (3 CT 124-25):
You're right. I was at the end of my rope tonight. When she told me that she was going to blow my fuckin' brains out tonight or tomorrow night with my .45 that started it. That did it. You're right. I went over. I took the butcher's block. I found the biggest one. That knife was about this big. I lied. The knife was not this big. I fuckin' took that fucker and set it right in her back that's what I did. I was sick of it. I was tired of getting threatened. I'm tired of living in fear. Tired of thinking that she's gonna blow me away or blow my car up. You're right.
At trial, petitioner said that what he had told officers was "99 percent" lies (RT 3048). He testified that he first arrived home at around 6:48 p.m. on December 17. He and Mary began to argue over Mary's failure to return some of petitioner's guns (RT 2987). Petitioner said that he "did not let her out of (his) sight" since she had taken some of his guns and because "she said she was going to blow my fucking head off" (RT 2988). Petitioner then reviewed some credit-card bills and saw that Mary had made some significant charges. The two argued over this as well (RT 2989). Petitioner went to get some food in the kitchen. When he did so, Mary punched him in the groin. Petitioner pushed her back toward the counter and told her not to start a fight (RT 3000). Mary refused to back down. The two started pushing and shoving each other (RT 3001). Petitioner then took some money and went to the bank to make a deposit (RT 3002).
In his closing statement, petitioner's counsel attempted to disown both what his client had said while under interrogation, and petitioner's trial testimony (RT 3541).
When petitioner returned, he noticed that the guns still had not been returned to the gun rack. He complained, and Mary replied with a profanity (RT 3006). Petitioner went to write some checks, but he and Mary soon returned to fighting over money (RT 3008). At 8:00 p.m., petitioner put Christopher to bed. Soon after, he and Mary fought some more. Petitioner said at that time he "was trying to keep all her hands in view, making sure she wasn't going to pull out any of the revolvers or automatics or anything from someplace" (RT 3009-10). Petitioner said he "was wondering what my chances were of going into the room and grabbing Christopher and making it down the street with him before I got my head blown off" (RT 3010).
Petitioner then testified that at some point after 8:00 p.m., he saw Mary holding a knife over Christopher, who was in his bed (RT 3010-11). Petitioner grabbed her and flung her out of Christopher's bedroom. He yelled at her; she replied that she was going to kill Christopher (RT 3011). She ran out to the kitchen, grabbed a frying pan, and came back down the hall. Petitioner deflected a few blows, and ran into the bedroom. After managing to get Mary out of the room, petitioner said that he returned to the kitchen and living room (RT 3012).
When he came out, petitioner told Mary not to hurt Christopher. As he came into the kitchen, Mary came at him with a knife in her raised right hand. Petitioner pushed her back, and she slammed into a table. The knife fell out of her hand ( ibid.). The two began to fight in earnest at that point. Mary was punching petitioner; petitioner was pushing her (RT 3013). Finally, petitioner grabbed Mary, slammed her into a corner and started shaking her and telling her to calm down (RT 3016). Then, he (RT 3016-17):
[P]roduced a knife from somewhere, either from her right hand, the sink, the butcher block, the sink, the counter. And I took it in my right hand, put it up against her back, I said, Mary, stop, cool out. You're killing me, calm down. She was going just the same.
I held it against her sweatshirt against her back, said do you feel this, do you feel this. And she was just insane screaming and yelling. The next thing I know the knife handle was sticking out of her back.
Petitioner testified that he "really wasn't sure what was happening and what was not happening" (RT 3017). Mary took a few steps across the kitchen, then dropped to the ground ( ibid.). Petitioner said he went on the phone and "finally got ahold of somebody" (RT 3018).
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Christopher, meanwhile, spoke to the events of December 17 on five different occasions: twice in interviews with police officers on the night of the stabbing, once in an interview with an officer ten days later, once in a preliminary hearing held in 1994, and once at trial. When first interviewed on the night of the homicide, Christopher said that he was watching television in the living room when petitioner came home and argued with Mary over some keys. Christopher said the argument grew "louder and louder and started to become violent" (RT 2316). The argument grew so loud that Christopher could not hear his television program (RT 2319). Christopher went into his bedroom. Once he was in his bedroom, the argument "turned violent sounding" (RT 2316). Christopher looked out from his bedroom and saw petitioner cutting Mary on her back ( ibid.).
The police officers who interviewed Christopher in 1993 testified at trial as to what Christopher told them.
Later that night, Christopher was interviewed at the police station by a different police officer. Christopher said that he had heard his mother and father arguing and fighting (RT 2328). He told the officer that he did not see the two hitting each other (RT 2329). Christopher said that his father had hurt his mother; when asked how, Christopher put his arms around the officer's back and jabbed at his back with a curled-up hand (RT 2330). Christopher said that petitioner had taken the knife from a wooden knife holder on the counter (RT 2331). When interviewed again by this same officer ten days later, Christopher said that his parents were fighting over a set of keys (RT 2354). Christopher said that his parents were pushing each other (RT 2355). Petitioner put Mary in a bear hug and pressed her up against the kitchen counter (RT 2370, 2372). Petitioner stabbed Mary as the two stood face-to-face in the kitchen (RT 2357).
Months later, Christopher testified at a preliminary hearing that he had seen petitioner push Mary against the refrigerator that night (CT 10). Petitioner and Mary then went into the living room. Petitioner wanted some keys from Mary, who was laying on them (CT 11-13). Petitioner tried to push Mary off the keys (CT 13). Petitioner went into the kitchen and got a knife (CT 14). He returned to the living room and stabbed Mary (CT 15). Christopher saw some pushing but no other physical violence before petitioner got the knife and stabbed Mary (CT 17). He did not hear Mary make any threats or curses (CT 18). On cross examination, Christopher said that the stabbing occurred in the kitchen, not the living room (CT 36).
Finally, at trial, Christopher testified that on the night of the stabbing he was trying to sleep in his bedroom when he heard "some rumbling" (RT 2279, 2288). He got up and saw his parents fighting (RT 2279-80). Christopher now said this was the first physical altercation they had ever engaged in (RT 2282, 2295). Christopher testified that petitioner was trying to get some keys out of Mary's hands (RT 2287). Mary told Christopher to call the police; petitioner told him not to do so (RT 2280). Mary and petitioner were wrestling and tumbling in the kitchen and dining room (RT 2281). Petitioner backed off and Mary caught her breath. Petitioner went into the kitchen and got a knife (RT 2282-83). Holding it above his head, he tripped and fell, stabbing Mary in her left side, right above the hip (RT 2285). The knife struck Mary on her side (RT 2286).
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Tape recordings of 9-1-1 calls made on the night of the stabbing were also played at trial. At 8:18 p.m., someone called 9-1-1 from the Parles' residence. The prosecutors theorized it was Mary, but that petitioner hung the phone up before his wife could speak to the operator. The 9-1-1 operator called the Parles back. Petitioner picked up the phone. The operator noted that petitioner sounded as if he was out of breath, and asked petitioner why this was. Petitioner said, "We were running around the block" (3 CT 156). The call soon ended.
A second 9-1-1 call was made from the Parles' residence five minutes later, at 8:23 p.m. Again, the caller hung up. The prosecution contended Christopher had made this call, but that petitioner had hung up the phone again. The 9-1-1 operator called back once more, with petitioner again answering. This time, petitioner asked the police to send an ambulance because "my wife, uh, stabbed herself in the back" (3 CT 157). When asked whether she was trying to kill herself, petitioner said, "Yeah" ( ibid.). In yet another call that soon followed, the operator asked how Mary had managed to self-inflict a wound in her back. Petitioner replied, "I was taking it away from her. She had it behind her back" (3 CT 160).
* * *
A few other witnesses also testified regarding what had happened that night. According to the conditional-examination testimony of petitioner's father, Richard Parle, petitioner called his parents sometime after 8:00 p.m. that night. Petitioner told his father, "I'm bleeding, come quick, get Christopher" (3 CT 202) According to Richard Parle, Mary, obviously still alive at that point, was screaming obscenities and demanding keys from petitioner in the background ( ibid.). Petitioner's parents left immediately for petitioner and Mary's apartment (3 CT 203). The first police officer to arrive at the scene testified that he found petitioner in a confused and panicky state (RT 557). This officer also testified that Christopher was screaming, "You killed my mommy" at petitioner, and that petitioner was telling Christopher to be quiet (RT 501-02, 507-08). Petitioner also showed this officer a wound — described at trial alternately as a scratch or a cut — on his inner forearm, and said that Mary had given it to him that evening (RT 569, 571, 602). The officer noted that the wound was not bleeding (RT 572). Another officer summoned to the scene testified that petitioner had told him that Mary had grabbed a knife and moved toward him with a "slashing type of motion" and cut him "several times" on the hand and arms (RT 747). Petitioner also told this officer that Mary had also hit him twice on the head with a frying pan (RT 749).
Richard Parle died prior to trial. A redacted version of the transcript of his conditional examination was entered into evidence.
* * *
Given the inconclusive evidence regarding what, exactly, had happened that night, at trial both sides tried to place the stabbing in the context of petitioner and Mary's tumultuous relationship. The prosecution argued that petitioner had premeditated the killing for at least a week, and that more likely than not the stabbing was the "culmination of years of thought" (RT 3516). It also asserted that in the couple's well-chronicled history of physical confrontations, petitioner was almost invariably the aggressor. This meant, the prosecution argued, petitioner could not reasonably assert that Mary's hostility toward him provoked a reasonable loss of control, or a genuine but unreasonable fear for his safety, such that the crime was manslaughter, not murder. The defense, for its part, argued that there was no premeditation, and that the stabbing had occurred in the course of a heated battle not unlike many others the couple had waged before.
Given these competing theories, much of the trial was consumed with the history of petitioner and Mary's relationship, from when they first met in 1986 up through December 17, 1993. By all accounts, petitioner and Mary had a tempestuous relationship, one which frequently degenerated into physical confrontations. Most though not all of the fights discussed at trial took place between 1988 and 1990. Several of these incidents involved violent behavior by petitioner, Mary, or both. It was disputed at trial whether petitioner or Mary generally instigated and/or aggravated these fights. The prosecution painted petitioner as the usual aggressor; the defense argued that Mary was just as combative as petitioner, if not more so. Several witnesses spoke of these fights, including Mary's son by a previous marriage, and Ron and Jennene Lea, two family friends with whom Mary often resided for extended periods of time. Jennene Lea, in particular, detailed a number of incidents in which petitioner behaved violently toward Mary. Before trial, however, Mrs. Lea told an defense investigator that she had never seen petitioner become violent with Mary, and that she had only heard about petitioner's abusiveness through Mary (RT 3229).
The police were often called upon to quell fights between petitioner and Mary. Several officers summoned to these scenes testified at trial. On March 6, 1988, Mary was arrested after petitioner said she had hit him with a hammer (RT 1870). On September 11, 1988, after Mary went to the police department to complain of an assault, petitioner was arrested for battery and infliction of corporal injury upon a spouse (RT 1610-11, 1613-14, 1867). On May 18, 1989, when officers responded to yet another call they found Mary screaming at petitioner. She asked the officers to arrest him for threatening her and Christopher. The officers advised her that she could obtain a restraining order instead. That evening, petitioner told a police sergeant that Mary posed a danger to him and asked "how he could go about defending himself," and "when could he shoot her" (RT 1877-78). The sergeant advised petitioner that "the only time he could shoot a person was when he had a reasonable fear and belief that his life was in jeopardy" (RT 1878). The next day, Mary was arrested again (RT 1845-46).
On April 7, 1990, Mary told an officer summoned to the Parles' apartment that petitioner had hit her on the head with a frying pan (RT 2037). (At trial, petitioner admitted he had hit Mary with the pan [RT 3099].) Mary said that petitioner had then dragged her into their bedroom and punched her repeatedly in the face, causing swelling and bruises (RT 2037). Mary said she had hit petitioner with a lamp in her efforts to escape (RT 2038). Mary had a bloody laceration on her head and a swollen face (RT 2037, 2048). Petitioner had several scratches on his face and neck and a small cut on his forearm (RT 1925-26). Petitioner was taken into custody (RT 2041-42, 2044).
As stated, most of the evidence of violent behavior adduced at trial concerned incidents taking place between 1988 and 1990, more than three years before the stabbing. There was some testimony pertaining to events occurring closer to the homicide, the most powerful of which was Mary's diary. Before turning to the diary, this order will summarize the other evidence of more recent violence. Petitioner testified that between 1991 and 1993, he and Mary fought about two or three times a week, with about half the fights becoming physical (RT 2906, 3081). Jennene Lea testified that in the latter half of 1993, she saw bruises on Mary's arms and face after each of Mary's visits with petitioner (RT 1137). Ron Lea testified that on November 26, 1993, petitioner and Mary threw punches at each other (RT 2178). Petitioner's father, Richard Parle, testified that on December 3, 1993, he came to petitioner and Mary's apartment and found Mary "in a real wild state" (3 CT 208). Mary had "torn the house apart" and was arguing with petitioner, who wanted her to return a revolver ( ibid.). According to Richard Parle, Mary hit petitioner in the jaw, knocking him to the sofa (3 CT 208).
On December 4, 1993, Mary was hospitalized after a drug overdose (RT 1185, 1189). Upon being released, she stayed with the Leas (RT 1220-23, 1257). Mrs. Lea testified that on December 11, 1993, petitioner pushed his way into the Leas' house and began shoving Mary (RT 1233). When Mary went upstairs, petitioner began to threaten the Leas. Mrs. Lea testified that petitioner "said he was going to bring a gun over, shoot us, shoot my kids, shoot my husband" (RT 1234). Ron Lea pushed petitioner out the door, with petitioner goading Mr. Lea to hit him so he could call the police (RT 1236). The next day, Mrs. Lea testified, she and Mary went to the Parles' apartment. There, petitioner "started shoving Mary around, started hitting her" (RT 1199-1200). Mary asked Jennene Lea to step between them. Then, according to Mrs. Lea, petitioner "went to the back room, came back with a knife, started threatening us with it" (RT 1200).
Mrs. Lea also testified that on December 14, she went with Mary to the Parles' apartment (RT 1239). Petitioner had changed the locks. Mary asked a neighbor (the landlord's brother-in-law) for permission to break into the apartment. The neighbor refused to grant his permission. Mary then let the air out of the tires of petitioner's car (RT 1243-44). The neighbor also heard pounding noises from inside the garage (RT 2486, 2509). Petitioner subsequently showed him some dents on the car's hood (RT 2488, 2511). The neighbor testified at trial that petitioner had told him that Mary had one of petitioner's guns and might kill him (RT 2490-91, 2514). That evening, Mrs. Lea testified, petitioner retaliated by disabling Mary's car (RT 1249).
On December 13, 1993, petitioner called the police to speak with Chief Frank Vasquez. He was not able to reach Vasquez, but left a message. He called again the next day and left another message saying that Mary was going to kill him, and that he wanted a restraining order (RT 2378-81, 2400, 2416). Vasquez testified at petitioner's trial that when he returned petitioner's calls, petitioner asked him what he could do if his wife came at him with a weapon. Vasquez said he could only respond with the force reasonably necessary to overcome the force that was being used against him (RT 2401-05). On December 14, petitioner called another police officer. He said he was worried that Mary would shoot him with a gun she had taken from the house (RT 2387). The officer recommended that petitioner get a temporary restraining order (RT 2388).
Mrs. Lea testified that on December 15, 1993, she and Mary filled out paperwork at two different offices to obtain divorce assistance for Mary (RT 1251-54). Then they went to the police department to ask what to do if petitioner "came after us" (RT 1255). Ron Lea testified that over dinner on December 16, Mary told the Leas that she wanted to "have it out with Chuck" (RT 3270). According to Richard Parle, both Mary and petitioner spoke with him the next morning and said that Mary was moving back into the Parles' apartment (3 CT 229-30). The owner of a local grocery store at which the Parles often shopped on credit testified that petitioner came to his store on the morning of December 17, 1993 (RT 2238-40). He told the owner to cut off Mary's credit (RT 2440). Mary came in to the store later that day. The shopkeeper advised her that petitioner had cut off her credit. Mary replied that she was "going home to fight" (RT 2441). That night, petitioner stabbed her and she died.
* * *
Most of the foregoing evidence was used by both the prosecution and the defense as supporting their respective theories of the case. The prosecution argued that petitioner had long been thinking about killing his wife, endeavored to set up a self-defense claim by speaking to officers on the week of the stabbing, and finally followed through with his murderous intentions on December 17, 1993. The defense, for its part, argued that petitioner was genuinely scared of Mary because she had recently threatened to shoot him. It contended that the record amply demonstrated that the couple often engaged in heated and violent fights, in which Mary could and did hold her own. The stabbing, the defense urged, simply arose out of one of these fights, and was in no way a premeditated act.
In making this argument, however, the defense also had to contend with evidence introduced by the prosecution that was immune from cross examination. Mary Parle's diary was admitted into evidence under California Evidence Code Section 1370, a recently-enacted hearsay exception for certain statements purporting to describe, narrate or explain the infliction or threat of domestic violence. The diary recounted several fights between petitioner and Mary taking place in October and November 1993. The first entry, dated October 3, 1993, will be analyzed thoroughly in connection with petitioner's confrontation-clause argument. It recounted several fights between petitioner and Mary, and concluded with Mary's comment that petitioner was someone who would not "do [Mary] right" (CT 301).
In the entry for October 15, 1993, Mary wrote that "things seem to be better" (CT 303). She admitted that she had lied to petitioner during an earlier confrontation ( ibid.). On October 23, 1993, Mary wrote that she and petitioner had a "few words" the previous night about finances (CT 307). Mary said she was "doing much better," but was upset with petitioner for "jacking off, when I get nothing — not even a hug from him" (CT 308).
The diary entry for November 25, 1993, discussed another fight between petitioner and Mary. According to the diary, the fight started over money; petitioner said that Mary was spending too much on his credit cards (CT 315). The two fought "for a good two hours" ( ibid.). Mary broke one of petitioner's collectible plates; petitioner jumped on her and, according to the diary, "choked me, hit me, slapped me, got his knees in my stomach, twisted my arm, pulled the .45 on me + jabbed that in my stomach" ( ibid.). In this final diary entry, Mary also wrote, "Well, I know one thing. Chuck wants Christopher to be taken away. He wants all we have here without me + Christopher — all the property + stuff. I know I can't stay with him anymore, so after X-mas, I will get a job, get some $ together and move my stuff out while he's gone" (CT 316).
It continued, "What Lill said really hit home. He could kill 2 birds with one shot if he got the cops involved now. He could possible (sic) get me put in jail, loosing (sic) all hope of getting custody of Tofer + getting Tofer put in a home somewhere. Then — he'd have his home, all my stuff, his job, 3 cars, + not have to share any" (CT 318). "Killing us wouldn't work," the diary read. "[I]t would jeopardize his freedom, so he feels he can force us to leave" ( ibid.). It added, "I have to get away from him to be able to heal myself, to loose (sic) the weight, to keep from loosing (sic) C2, to get control of my sanity, to keep from being a punching ball anymore.
"It wasn't the booze that was allowing him to hit me + take his frustration and anger out on me — it just gave him a good excuse. His warped mind + screwed up morals makes (sic) him be the beast that he is" (CT 319-320). This final entry was written less than a month before petitioner stabbed Mary.
* * *
Petitioner also called a psychiatrist, Jay Jackman, to testify regarding his diagnosis of petitioner and, more generally, about bipolar disorders. Petitioner had seen another psychiatrist during 1992 and 1993. In May 1993 he was worried he would "snap" (RT 655). Petitioner's psychiatrist was called to testify by the prosecution over petitioner's protests; the trial judge ruled that petitioner had previously waived the psychotherapist-patient privilege. Petitioner's psychiatrist testified that she had diagnosed petitioner as having type II bipolar disorder, characterized by infrequent mood swings (RT 693). Petitioner's psychiatrist also testified that she had spoken with Mary on November 18, 1993. Mary reported that petitioner had a poor sex drive. She also said that the Parles had not had a sexual relationship for the last six months, a point petitioner confirmed (RT 666-67). On December 10, 1993, petitioner advised his psychiatrist that he was doing well with the medication she had prescribed for him (RT 673-74).
The California Court of Appeal held that the trial judge's decision to allow the prosecution to call petitioner's psychiatrist was erroneous, but not sufficiently prejudicial to warrant reversal (Pet Exh. A at 27, 31, 32).
In response, petitioner was allowed to call Jackman out of order, in the midst of the prosecution's case. Petitioner intended to elicit from Jackman, inter alia, evidence that Mary suffered from a passive-aggressive personality, and evidence about how someone with such a personality would act during an argument. The trial judge refused to allow that evidence but ruled that Jackman could testify as to petitioner's mental condition.
Jackman testified that in his opinion, petitioner suffered from a type I bipolar disorder and that petitioner appeared to have been suffering from a manic episode the night of the stabbing. In a sidebar, petitioner's counsel proposed to ask Dr. Jackman several questions: (1) "How would a manic episode come to play in terms of a domestic dispute and in particular an argument that was violent?" (RT 1955); (2) "How would a manic episode reflect on one's behavior with one's spouse?" ( ibid.); (3) whether a person with bipolar disorder would feel more pressure and agitation during an argument (RT 1957); (4) "Would it be more or less likely that a person would carefully weigh and consider the consequences during an altercation if under the influence of a manic episode?" ( ibid.); (5) "Is clarity of thought indicative of a manic episode?" (RT 1959); and (6) "How does a manic state affect a person's thought process?" ( ibid.). The prosecutor objected to these questions on the ground that they went to the defense of diminished capacity, abolished under California Penal Code Section 28(b). The prosecutor's objections were sustained. The trial judge also struck Dr. Jackman's statement that a bipolar disorder is characterized by impulsiveness and poor judgment (RT 2003).
* * *
After petitioner was convicted and sentenced, he appealed on several grounds. In a 57-page opinion issued July 21, 2000, the California Court of Appeal rejected petitioner's assertion that various errors in his trial warranted reversal, holding that he had received a "fundamentally fair," if imperfect trial (Pet. Exh. A at 56). Among its other conclusions, the court held that admission of Mary's diary did not violate the Confrontation Clause. It did agree with petitioner that the trial judge had made several erroneous evidentiary rulings, but it held that these errors were not significantly prejudicial, either individually or when aggregated. Petitioner then filed a petition for review by the California Supreme Court. This petition was denied on November 1, 2000. Petitioner then filed this habeas petition.
ANALYSIS
Petitioner brings three claims of error. First, he asserts that admission of Mary's diary violated the Confrontation Clause. Second, he states that this and other erroneous evidentiary rulings deprived him of his due-process right to a fair trial. Third, he claims that the trial judge's repeated granting of unfounded hearsay objections during his testimony violated his Sixth and Fourteenth Amendment rights to present a defense and to testify in his own behalf.
1. Standard of Review.
This petition is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, an application for a writ of habeas corpus on behalf of a person in custody pursuant to a judgment of a state court shall not be granted with respect to any claim already adjudicated on the merits in state court proceedings unless the adjudication of that claim: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, as determined by the holdings of the United States Supreme Court; 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 proceedings. 28 U.S.C. § 2254(d).
As used in AEDPA, "contrary to" and "involve an unreasonable application of" federal law have somewhat distinct meanings, though they may also overlap. A state court's decision is contrary to federal law if it fails to apply the correct controlling authority or if it applies the correct controlling authority incorrectly to a case involving facts "materially indistinguishable" from those in the controlling decision. A state court's decision involves an unreasonable application of federal law if it correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or if it extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable. Williams v. Taylor, 529 U.S. 362, 405-12 (2000); Van Tran v. Lindsey, 212 F.3d 1143, 1150 (9th Cir. 2000). "Unreasonable" is not the same as incorrect. It is instead comparable to the "clear error" standard — i.e., reversal is allowable only where the reviewing court is left with a "firm conviction" that error has been committed. Van Tran, 212 F.3d at 1153-54.
2. Confrontation Clause.
Petitioner assigns error to the trial judge's decision to admit Mary's diary into evidence. Petitioner argues that admission of the diary violated the Confrontation Clause and had a substantial and injurious effect on his trial. This order concludes that since the statements in the diary lacked the particularized guarantees of trustworthiness required under Idaho v. Wright, 497 U.S. 805 (1990), and in fact bore several indicia of untrustworthiness, the Confrontation Clause was violated by the diary's admission. This order further agrees with petitioner that the error was not harmless, and that a writ of habeas corpus must issue on this claim alone. This order does not hold that California Evidence Code Section 1370 is unconstitutional per se; it simply holds that in this case the victim's diary was improperly admitted given the requirements of the Confrontation Clause.
A. Legal Standard.
Under the Confrontation Clause of the Sixth Amendment, a criminal defendant has the right to "be confronted with the witnesses against him." As the Supreme Court has stated, "When the government seeks to offer a declarant's out-of-court statements against the accused . . . courts must decide whether the Clause permits the government to deny the accused his usual right to force the declarant `to submit to cross examination, the greatest legal engine ever invented for the discovery of the truth.'" Lilly v. Virginia, 527 U.S. 116, 124 (1999) ( quoting California v. Green, 399 U.S. 149, 158 (1970)).
"[T]he Clause does not necessarily prohibit the admission of hearsay statements against a criminal defendant, even though the admission of such statements might be thought to violate the literal terms of the Clause." Wright, 497 U.S. at 813. Rather, there exists a two-step approach for determining when incriminating out-of-court statements admissible under an exception to the hearsay rule also meet the requirements of the Confrontation Clause. First, the Sixth Amendment establishes a "rule of necessity." Ohio v. Roberts, 448 U.S. 56, 65 (1980). In the usual case, the prosecution must either produce or demonstrate the unavailability of the declarant whose statement it wishes to use against the defendant. Once a witness is shown to be unavailable, his or her statement is admissible only if it bears adequate "indicia of reliability." Id. at 66. Reliability can be inferred without more in a case where the evidence falls within a firmly-established hearsay exception. Where the statements do not fall within a firmly-rooted hearsay exception, however, they "must be excluded, at least absent a showing of particularized guarantees of trustworthiness." Ibid.
A determination as to whether a statement has particularized guarantees of trustworthiness must be based on the totality of the circumstances, but the "relevant circumstances include only those that surround the making of the statement and that render the declarant particularly worthy of belief." Wright, 497 U.S. at 819. In other words, independent corroborating evidence cannot be used to bolster a statement's trustworthiness. Id. at 823. "An `affirmative reason, arising from the circumstances in which the statement was made,' is necessary to rebut the presumption of unreliability and exclusion under the Confrontation Clause." Webb v. Lewis, 44 F.3d 1387, 1391 (9th Cir. 1994) ( quoting Wright, 497 U.S. at 821). Significantly, in all cases, the particularized guarantees of trustworthiness must be sufficient for the statement to be considered "so trustworthy that adversarial testing would add little to its reliability." Id. at 821. As will be shown below, the statements in the diary do not satisfy the requirements for admissibility described in this paragraph.
B. Admission of the Diary.
Before applying these principles, this order must first address how the diary was admitted into evidence at trial. The prosecution sought to have the diary admitted under the hearsay exception set forth in California Evidence Code Section 1370. This section, enacted in 1996 in response to the exclusion of Nicole Brown Simpson's diary in the celebrated O. J. Simpson trial in 1994-95, provides in relevant part as follows:
§ 1370 Infliction of Injury.
(a) Evidence of a statement by a declarant is not made inadmissible by the hearsay rule if all of the following conditions are met:
(1) The statement purports to narrate, describe, or explain the infliction or threat of physical injury upon the declarant.
(2) The declarant is unavailable as a witness pursuant to Section 240.
(3) The statement was made at or near the time of the infliction or threat of physical injury. Evidence of statements made more than five years before the filing of the current action or proceeding shall be inadmissible under this section.
(4) The statement was made under circumstances that would indicate its trustworthiness.
(5) The statement was made in writing, was electronically recorded, or made to a physician, nurse, paramedic, or to a law enforcement official.
(b) For purposes of paragraph (4) of subdivision (a), circumstances relevant to the issue of trustworthiness include, but are not limited to, the following:
(1) Whether the statement was made in contemplation of pending or anticipated litigation in which declarant was interested.
(2) Whether the declarant has a bias or motive for fabricating the statement, and the extent of any bias or motive.
(3) Whether the statement is corroborated by evidence other than statements that are admissible only pursuant to this section.
As provided above, the means of indicating trustworthiness set forth in subsection (b)(3) of Section 1370 has been expressly disapproved of by the Supreme Court. Wright, 497 U.S. at 823.
At the outset of petitioner's trial, the prosecutor moved to have the entire diary admitted into evidence. Petitioner's counsel objected on constitutional and statutory grounds. The trial judge, after considering the issue, determined that "taking into consideration the totality of the circumstances surrounding the incident and the diary in its totality," it found the diary trustworthy (RT 89). The trial judge, however, did not order the entire diary admitted at that point. Instead, he advised the parties that they would review the diary on an entry-by-entry basis and determine what statements therein would (or would not) be admitted under Section 1370. The trial judge said he had already reviewed the diary's first entry, a seven-page posting dated October 3, 1993, and had determined this entry would be admitted in its entirety. The next entry, a two-line note dated October 8, was redacted as irrelevant (RT 89-90).
Defense counsel then said he wanted to have the entire diary admitted "because it's all ready (sic) coming in and all the bad parts are coming in" (RT 100). The trial judge expressed his concern that this maneuver would leave an incomplete record for appellate review, since the parties had not completed their own review of the statements in the diary to see which were admissible under Section 1370. The trial judge said, "I don't think the reviewing court, if any reviewing court is indeed going to look at this and say, well, gee, the court gave an indicated ruling in terms of admissibility of all the pages and, therefore, the defense is just buckling over and it's not a tactical decision they made that they wanted in" ( ibid.). Defense counsel replied that he had made constitutional and statutory objections to the diary, only to have those objections overruled. He continued, "certain portions of the diary were coming in and now I'm being asked, under those conditions, now, can the whole of the diary come in, I would request that, but I don't want to be considered to be waiving those objections that I made, the constitutional and statutory objections about confrontation and trustworthiness" (RT 100-01). The trial judge replied, "All right. The record would then so reflect" (RT 101). And so, the entire diary came into evidence, without any further review.
The parties did subsequently examine two other entries which were believed by the prosecution to have been written by someone other than Mary. Neither contained any damning hearsay statements; both were admitted.
The trial judge's concerns have proven prescient. At the time of the colloquy, the parties were less than halfway through the diary. Many of the statements petitioner now complains of as particularly prejudicial were in that portion of the diary the parties had not yet reviewed when his counsel requested that the entire diary come into evidence. It could be argued that petitioner invited error by requesting admission of the entire diary, and cannot pursue a claim for habeas relief based upon any statement in the diary beyond the October 3 entry. This is because it is simply impossible to know whether or not the trial judge would have admitted statements in the rest of the diary. For example, much of the entry dated November 25, 1993, in no way "narrates, describes, or explains" the infliction or threatened infliction of violence but instead discusses Mary's plans to leave petitioner. These plans were the words "ringing in the jury's ears," as petitioner puts it, when it retired to deliberate (Pet. 15).
When asked about this issue at hearing, both parties said that defense counsel had, in their view, preserved a Confrontation Clause objection to the entire diary despite his request that the diary be admitted in full.
This point is being raised for the benefit of the Court of Appeals for the Ninth Circuit. This order does not consider it dispositive, however, for it finds that the portion of the diary admitted by the trial judge before petitioner requested admission of the entire diary — specifically, pages one through seven, containing the diary entry for October 3, 1993 — was itself (1) erroneously admitted in plain violation of the Confrontation Clause; and (2) contained statements sufficiently prejudicial to warrant issuance of a writ of habeas corpus.
C. The California Court of Appeal's Ruling.
The California Court of Appeal held that admission of the diary did not violate the Confrontation Clause. It reasoned:
We believe the trial court properly admitted Mary's diary under Evidence Code section 1370, and that its admission did not violate the Confrontation Clause of the Sixth Amendment. The diary contained sufficient indicia of reliability. There was no indication that Mary's diary entries were "made in contemplation of pending or anticipated litigation" or that she had "a bias or motive for fabricating" anything she wrote. (Evid. Code, § 1370, subd. (b)(1) (2).) Rather, it appears Mary's diary entries were made as part of her regular process of recording the events in her life. Thus, the trial court did not abuse its discretion in determining that the diary was made "under circumstances that would indicate its trustworthiness." (Evid. Code, 1370, subd. (a)(4).)
Petitioner argues that this conclusion was clearly erroneous. He first notes that no one has ever contended that Section 1370 constitutes a "firmly rooted" hearsay exception. Instead, to pass muster under the Confrontation Clause the statements in the diary must bear particularized guarantees of trustworthiness such that cross examination would be of minimal value in gauging their reliability. On this point, petitioner contends that Mary's diaries were plainly not reliable accounts, and the hearsay statements therein could have been vigorously tested and compromised through cross examination probing (1) Mary's bias against petitioner; (2) her state of mind and mental condition when making the entries; and (3) her motives for keeping the diary.
This order agrees with petitioner. The state court of appeal's reasoning was principally negative: the diary was trustworthy because there was no indication that Mary's diary entries were "made in contemplation of pending or anticipated litigation" or that she had "a bias or motive for fabricating" anything she wrote. This analysis was unreasonable in at least two crucial respects. There was every indication that Mary was biased against petitioner. And, by limiting its gaze to the enumerated statutory factors, the state court of appeal failed to take into account all of the circumstances surrounding the making of the hearsay statements, and to ask whether there were sufficient affirmative guarantees of trustworthiness such that cross examination would have been of minimal utility.
The state court of appeal's finding as to bias was clearly erroneous. As petitioner puts it, and as is evident from the diary itself, Mary blamed petitioner for ruining her life. In her final entry, dated November 25, 1993, Mary wrote that petitioner's "warped mind + screwed up morals makes (sic) him the beast he is" (CT 3 19-20). This same sentiment is apparent in the October 3 entry, which ended with Mary asking herself, "So . . . did I accomplish anything for my trouble. . . . Yeah. I found some truth, some more lies, and person who is not going to do me right" (CT 301). It is impossible to reconcile an invective like this with the state court of appeal's finding that there was no evidence of bias.
Although this language comes from a later entry, it may be considered because it sheds light on reliability and bias as to the October 3 entry. Wright, 497 U.S. at 820. In addition, " Wright does not forbid recourse to other evidence that confirms the presumptive unreliability of the hearsay." Webb, 44 F.3d at 1392 (emphasis added).
Nor, as the state court of appeal apparently found, are diaries (in general) inherently trustworthy because they reflect a "regular process of recording the events" of one's life. Quite the contrary; people keep diaries for many purposes, including a desire to tell only their side of the story. In Clark v. Los Angeles, 650 F.2d 1033 (9th Cir. 1981), for example, the Ninth Circuit held that a diary was a "a heavily emotive document that does not simply relate factual occurrences, but is written in a style designed to arouse sympathy and create enmity for the [defendants]." Id. at 1038. Here, although Mary's diary may not have been meant for wider audiences, it was not an unbiased recounting of events. Rather, it was a repository of her anger and frustration toward petitioner.
The state court of appeal also erred in limiting its analysis to the factors enumerated in Section 1370, and thereby failing to take into account the totality of the circumstances surrounding the making of the hearsay statements. Wright is explicit on this point: "We think the `particularized guarantees of trustworthiness' required for admission under the Confrontation Clause must likewise be drawn from the totality of the circumstances that surround the making of the statement and that render the declarant particularly worthy of belief." 497 U.S. at 820 (emphasis added). Had the court undertaken a broader review, it would have noted several indicia of unreliability. For example, the October 3 entry was not a spontaneous statement but rather the product of deliberation and reflection. Also, the entry recounted incidents that appear to have taken place while Mary was under the influence of alcohol, calling into doubt her ability to clearly recall what had happened. And, as evidenced by its closing remarks, the entry was written at a time when Mary was upset with petitioner. With these flaws, cross examination would have been an enormously useful device for challenging the damning assertions in the entry.
Supreme Court precedent required that the prosecution show the document to be "so trustworthy that adversarial testing would add little to its reliability." Wright, 497 U.S. at 821. The utility of cross examination here is best illustrated by a close review of the October 3 entry. This entry purported to recount events beginning two days before. Mary had an opportunity to brood and to fester over these past happenings; the entry was by no means a series of excited utterances. Turning to the diary, the October 3 entry began by stating that on Friday, October 1, Mary found a receipt for a $375.63 purchase at an adult bookstore in the apartment, as well as "[b]lack lace bras, satin undies, white heels, [and] black lace finger-loop gloves" and pornography (CT 295). Mary said she also found receipts from lingerie stores. Mary said she took all of the adult books and put them in the trash. After taking Christopher to the Leas, she said she opened a bottle of champagne, poured it into two glasses, and put the receipts, "`stuff,'" and glasses on the table (CT 296). By her own account, Mary was "dead-tired, angry, hurt, pissed-off + on" when petitioner came home that night ( ibid.).
Particularly given Mary's own admission that she was tired, drinking champagne (or had planned to), "angry" and "hurt" when petitioner arrived home, cross examination could have probed her version of the events that followed. Mary said that the ensuing fight "resulted in both blue stemware getting broken + booze + glass everywhere" (CT 296). "Then one of my rose crystle (sic) got hit + smashed" (CT 297). The diary is ambiguous as to what "got hit" means, and who did it. The implication, of course, is that petitioner alone was at fault; but this could have been artful wording. Cross examination might well have weakened her story. This same criticism must be directed against all of the fights described by the diary; there is no way of knowing whether Mary was accurately describing how the fights started, or merely putting a self-serving spin on the real facts.
Next, the diary stated, "He tried to choke, kick, wrestle me down to the floor etc. + I was getting banged up (CT 297)." Although this seemed to damn petitioner, these words were immediately followed by this sentence: "I wanted more to drink so I sent him to Eds for smokes + Andre . . . I really got wasted, on an empty stomach, + I smoked some stuff too" ( ibid.) (emphasis added). The diary thus provided that (1) Mary had been drinking Friday evening and (2) she grew either more intoxicated or high as the evening wore on. Cross examination could have mined the effect of her drinking on Mary's ability to accurately recall what had happened that Friday.
The diary's reference to "choking" was also ambiguous and could have been challenged or clarified through cross examination. Moments after this alleged "choking" (in the very next sentence), Mary appears to have been fine and was telling petitioner to go purchase cigarettes and liquor for her, which he supposedly did. This strange concatenation of episodes calls into question what Mary meant by "choking," and how severe the physical contact really was. Since the statements in the diary were not subject to cross examination, however, Mary had the final word.
The entry then discussed another fight on Saturday, October 2. Mary wrote that at 7:00 a.m. that morning, "We got into it again" (CT 297). This entry glided over who started the fight or who escalated it. She continued, "He started trying to choke me again + we fell to the floor. When I felt my ears ringing + my neck hurting, I hit back" ( ibid.). Later that day, Mary came home to find petitioner asleep. She woke him up and "lit into him again." Petitioner "made a lot of accusations + threats," then "went for the throat again + we did some wrestling (sic), + he did some punching, kicking + nasty behavior" (CT 298). In addition to probing the continued ambiguity as to what "choking" meant, cross examination could have determined whether and how Mary provoked petitioner and the details of the subsequent fights. Did petitioner's attempt to "go for the throat" actually reach the throat or did it instead degenerate into wrestling?
The entry then mentioned a fight on Sunday, October 3. According to the diary, petitioner came home and asked where his box of receipts was. "He calls — Mary, where's my box of receipts — well, that started it again. So, he goes for my throat again + I'm sitting down" (CT 299). The diary did not say what happened between petitioner's question and his reaching for Mary's throat. The diary continued, "I feel his thumb putting pressure on my I windpipe + I feel the pain" ( ibid.). From this statement, once again, a jury could infer that petitioner not only frequently threatened to use deadly force against Mary, but that he actually did use such force. Then, Mary grabbed a letter opener and slashed him on the arm with it. "I got him," she wrote, "twice on one arm + 3 times on the other + he's bleeding like a stuck pig" ( ibid.).
According to the diary, petitioner then threatened to call the police, and did call his parents. His parents arrived, but petitioner was still "ranting + raving + walking around slinging blood" all over the apartment ( ibid.). Petitioner then left. Mary told petitioner's father that she would "stand [her] ground" this time and not leave (CT 300). Once petitioner's parents left, Mary wrote, she "began to clean up blood + nurse my wounds" ( ibid.). The juxtaposition of "wounds" and "blood" implies that petitioner had drawn blood, although it is possible that the blood was not Mary's at all but petitioner's (who had been cut by Mary). The diary did not say what Mary's wounds were or their severity. Then Mary returned to reviewing petitioner's receipts. When petitioner came home, he "kept trying to get the box + raised his fist to me again" ( ibid.). But, "At this point, one more bruise wasn't going to make much difference so I jutted out my chin + told him to go ahead + then I was going to lite (sic) into him again" ( ibid.). Petitioner backed down. Later, the diary read, Mary and petitioner "had several more bouts of power + control about the bedroom" and petitioner "attacked" Mary again. The diary did not specify what either "bouts of power + control" or "attacked" actually included and even whether the attacks were verbal rather than physical.
The diary then stated that later that day, petitioner refused to eat the dinner Mary had prepared for him. And so, Mary "got pissed + went after him. I hit + hit + I slapped him good across the face. Most of his blows I managed to ward off, kick off, or slip out of" (CT 301). Cross examination would have been able to pin down how hard Mary's slaps were. This admitted attack by Mary could have been used on cross examination as leverage for admissions that she had provoked the earlier fights described above. The diary then discussed yet another fight in which petitioner "came at me again + as I was laying back on the bed + kicking at him; he couldn't get hold of my neck, or me. I started laughing, but I was hurting!" ( ibid.). That Mary was laughing during an "attack" could have been used to shows on cross examination, that the attack was not as severe as the diary otherwise implies. The entry closed with Mary's rhetorical question, "So . . . did I accomplish anything for my trouble." It answered, "Yeah. I found some truth, some more lies, and a person who is not going to do me right" ( ibid.).
The harmful effect of almost every hearsay statement in this entry could plausibly have
been vitiated or at least blunted through cross examination. The statements were made under circumstances that impeach reliability. Although the state court of appeal recognized the correct governing authority — Roberts — it arrived upon an unreasonable holding that the diary bore sufficient indicia of trustworthiness such that cross examination, "the greatest legal engine ever invented for the discovery of the truth," Lilly, 527 U.S. at 124 (1999) (citation omitted), would have marginal utility in gauging the reliability of the statements therein. The error here was sufficiently clear that it lies outside the zone of deference due state-court decisions under AEDPA.
D. Harmless Error.
Given this finding of error, the question becomes whether that error had a "substantial and injurious effect or influence" in determining the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). In determining whether the error had a substantial and injurious effect or influence, "The inquiry cannot be merely whether there was enough to support the result, apart from the phase affected by the error. It is rather, even so, whether the error itself had substantial influence. If so, or if one is left in grave doubt, the conviction cannot stand." Kotteakos v. United States, 328 U.S. 750, 765 (1946).
Since respondent does not make a harmless-error argument in its brief, arguably this issue has been waived. See Gray v. Klauser, 282 F.3d 633, 651 n. 13 (9th Cir. 2002) (declining to decide whether the state's failure to argue an error was harmless constituted a waiver of the issue). Since this order concludes that the error was not harmless under Brecht, it does not address the issue of a waiver.
In considering the harmlessness or harmfulness of the error, it is crucial to note that the sole practical issue at trial was petitioner's state of mind at the time of the stabbing and shortly before. It was undisputed that petitioner had stabbed Mary. The question was whether he was guilty of first-degree murder, second-degree murder, or voluntary manslaughter. To convict petitioner of first-degree murder, the state had to convince the jury beyond a reasonable doubt that he killed Mary willfully, deliberately, and with premeditation. The jury was properly instructed on this point, and on the elements of voluntary manslaughter and the degrees of murder.
In determining the likely impact of a constitutional error, the reviewing court should review the strength of the prosecution's case. Gray, 282 F.3d at 653 n. 16. Where properly-admitted evidence overwhelmingly supports a jury finding of guilt, a trial error will not be deemed to have had a substantial influence on a verdict. Here, the evidence of first-degree murder was not overwhelming on the intent issue — far from it. In fact, on direct appeal even respondent admitted in its brief to the California Court of Appeal that "the jury had plenty of evidence before it from which it could have concluded, had it wished, that [petitioner] killed Mary during a legally valid heat of passion or sudden quarrel . . . and not out of premeditation or deliberation." (Exh. D at 132). Likewise, in his closing statement at trial, the prosecutor said that whether petitioner acted with premeditation and deliberation was a question "that really needs to be pondered" (RT 3512). The state's representations were correct; the evidence adduced at trial provided a substantial basis upon which the jury could have concluded that petitioner was not guilty of first-degree murder, but rather voluntary manslaughter or second-degree murder.
Respondent made this assertion while arguing that the exclusion of evidence of certain threats Mary had made against petitioner was harmless. This issue is addressed later in this order.
This evidence included a history of violent battles between the two, extending back to 1988. This evidence occupied much of the trial. Although the balance of evidence painted petitioner as the more frequent aggressor, in various fights Mary wielded hammers, pots, and other weapons against petitioner. According to petitioner's father, three weeks before the homicide Mary threatened to shoot petitioner and brandished a gun to back up her threat. On December 17, 1993, the day of the homicide, Mary told a shopkeeper that she was "going home to fight." In interviews conducted the very night of the stabbing, Christopher Parle said he had heard a loud fight between petitioner and Mary before the stabbing.
As respondent suggested to the state court of appeal, these facts provide a basis to doubt whether petitioner acted with premeditation and deliberation. The October 3 entry alone may have tipped the scales and caused the jury to return a first-degree murder conviction rather than a conviction for second-degree murder or voluntary manslaughter. The diary was an essential part of the prosecution's case, and the prosecution exploited it at every possible opportunity. It was admitted into evidence. It was read to the jury by Sergeant Cusimano, one of the officers who had interrogated petitioner at the police station the night of the homicide. The prosecution cross examined petitioner at length about the diary's contents. And, most notably, the prosecution read portions of the October 3 entry (along with much of the rest of the diary) to the jury near the very end of its closing rebuttal (RT 3643-52).
The prosecution relied on the diary for obvious reasons. First, the diary provided a basis upon which the prosecution could argue that the stabbing was willful, deliberate and premeditated, instead of merely second-degree murder or voluntary manslaughter. The prosecution's theory was that petitioner had been thinking about killing Mary for at least a week before the stabbing. The diary provided the prosecution with a reason why petitioner would decide to kill his wife after five years of marriage, namely, fights over money and sexual problems that were referenced in the fresh entries. The prosecutor said in his closing argument, "I believe that violence in the home was sporadic for the previous two years and that what really brought it to a head was the discovery of first the receipt and then the clothing" (RT 3643). The diary was key evidence in the record discussing the effect of the receipt or the clothing.
Moreover, the diary provided the prosecution with its best evidence of domestic violence — and especially potentially deadly violence — in the weeks immediately before the killing. Most of the episodes of violence discussed at trial occurred between 1988 and 1990, and were stale. Without the diary, the prosecution would have been hard-pressed to argue, as it did, that the killing was the culmination of a recent months-long battle between petitioner and Mary. True, Jennene Lea testified that on December 11, 1993, petitioner was "pushing Mary around" with his hands (RT 1233), and that on December 12, 1993, petitioner "started shoving Mary around, started hitting her" and threatened Mary and herself with a knife (RT 1200). And, when interviewed at the police station the night of the homicide, Christopher said that three or four days earlier, petitioner and Mary engaged in a physical confrontation, with petitioner hitting Mary on the leg and knee (RT 2339). Yet Mrs. Lea's testimony was inconsistent (significantly, many inconsistencies were brought out through cross examination). For example, she later characterized the latter dispute as a "shoving match" between petitioner and Mary, as opposed to a one-sided beating (RT 1204). In a prior interview with a defense investigator, Mrs. Lea could not recall witnessing petitioner ever becoming violent with Mary. And neither her testimony nor Christopher's placed before the jury evidence that petitioner had, on several occasions shortly before the homicide, actually used potentially deadly force against his wife.
Far more powerfully, the October 3 entry discussed several different violent "choking" incidents taking place only two months before the stabbing. The diary painted petitioner as the aggressor in most of these fights. In these choking incidents, according to the diary, petitioner:
• Tried to "choke" Mary on October 1, 1993 (CT 297);
• Tried to "choke" her again the next morning ( ibid.);
• "Went for [Mary's] throat" later that day (CT 298);
• Tried to choke Mary on the morning of October 3 (CT 299);
• "Attacked" Mary later that day (CT 300); and
• "Came at" Mary even later on Sunday (CT 301).
The diary's unchallenged use of words like "choked" and "attacked" intimated that petitioner was capable not only of threatening deadly force — a point well-established and not seriously in dispute at trial — but also of actually using such force without compunction, and that he had actually done so in the time period immediately preceding the homicide.
Finally, the diary had palpable emotional power. The entry for October 3 ended with Mary's resigned comment, "So . . . did I accomplish anything for my trouble. Yeah. I found some truth, some more lies, and a person who is not going to do me right" ( ibid.) (emphasis added). As the Ninth Circuit has recently noted, certain evidence carries the potential for extreme prejudice, regardless of whether the jury is properly instructed. Thomas v. Hubbard, 273 F.3d 1164, 1173 (9th Cir. 2001). The accusations from the grave contained in Mary's diary are just this sort of evidence. See Shepherd v. United States, 290 U.S. 96, 98 (1933) (erroneous admission of victim's deathbed accusation not harmless).
The fact that the prosecution relied so heavily on the diary provides strong evidence that the diary damaged, rather than helped, petitioner's defense. The diary did contain evidence that Mary was capable of mayhem ( e.g., stabbing petitioner with a letter opener and later writing that he was bleeding like a "stuck pig"), and that she instigated fights herself ( e.g., hitting petitioner when he refused dinner). Yet these were merely isolated portions of a much more substantial tract, one that, on balance, worked to petitioner's substantial detriment. Without the diary, the prosecution would have struggled to have come up with a motive or rationale for a premeditated killing. Without the diary, there was little evidence that petitioner had been physically violent toward Mary in the months immediately before the killing. Without the diary, petitioner's testimony that he was incapable of actually using deadly force would have rung more true. And finally, without the diary the jury would not have been bombarded with Mary Parle's accusations that petitioner was a man who would not "do [her] right."
* * *
In sum, the California Court of Appeal applied Roberts unreasonably. The statements at issue here had no "indicia of reliability by virtue of [their] inherent trustworthiness." Wright, 497 U.S. at 822. Cross examination would have been enormously useful in testing their reliability. The diary, and in particular the October 3 entry, should not have been admitted. Once admitted, it exerted a substantial and injurious effect on the verdict. Even given AEDPA's deferential standard of review, a writ of habeas corpus must issue on petitioner's Confrontation Clause claim.
3. Cumulative Error.
Petitioner's next claim of error is that the erroneous admission of the diary, along with several other evidentiary errors, deprived him of his right to a fundamentally fair trial, as guaranteed by the Due Process Clause of the Fourteenth Amendment. Here again, this order finds clear error so substantial as to require issuance of a writ.
A. Legal Standard.
As a threshold matter, the parties dispute whether a claim of cumulative error is cognizable in a federal habeas proceeding governed by AEDPA. Respondent asserts that the Supreme Court has never expressly held that a due-process violation may be based on the combined effect of several evidentiary errors. Since AEDPA predicates relief on a finding that a state-court decision is in conflict with a holding of the Supreme Court, respondent considers petitioner's cumulative-error claim to be unrecognizable. Multiple Supreme Court decisions, however, have found due-process violations owing to the combined effect of multiple erroneous and prejudicial evidentiary rulings. See Taylor v. Kentucky, 436 U.S. 478, 487 n. 15 (1978); Chambers v. Mississippi, 410 U.S. 284, 302-03 (1973). In addition, the Ninth Circuit has recently recognized a cumulative-error claim in a petition covered by AEDPA. Thomas, 273 F.3d at 1179-80. This order therefore declines to accept respondent's invitation to disregard petitioner's cumulative-error argument.
"Cumulative error applies where, `although no single trial error examined in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors [has] still prejudice[d] a defendant.'" Whelchel v. Washington, 232 F.3d 1197, 1212 (9th Cir. 2000) (citation omitted). To establish a due-process violation, a petitioner "must show that the error rendered the trial so `arbitrary and fundamentally unfair' that it violated federal due process." Pennywell v. Rushen, 705 F.2d 355, 357 (9th Cir. 1983). There must be more than simply a number of evidentiary rulings erroneous under state law. Instead, "The analysis for determining whether a trial is `so infected with unfairness' as to rise to the level of a due process violation is similar to the analysis used in determining, under Brecht, whether an error had a `substantial and injurious effect' on the outcome." Thomas, 273 F.3d at 1179. As for gauging the impact of each individual error, the Ninth Circuit employs a five-part balancing test. The factors considered are (1) the probative value of the evidence on the central issue; (2) its reliability; (3) whether it is capable of evaluation by the trier of fact; (4) whether it is the sole evidence on the issue or merely cumulative; and (5) whether it constitutes a major part of the attempted defense. Tinsley v. Borg, 895 F.2d 520, 530 (9th Cir. 1990).
The Tinsley factors are applicable to habeas petitions subject to AEDPA. See Chia v. Cambra, 281 F.3d 1032, 1037 (9th Cir. 2002).
As discussed above, admission of the October 3 diary entry violated the Confrontation Clause. Since the error had a substantial and injurious effect on the jury's verdict, under Thomas, it alone could serve as a sufficient basis upon which to grant petitioner's due-process claim. Yet there were at least two other substantial trial errors that also bore on the key issue of petitioner's state of mind. In each instance, the trial judge excluded evidence that would have been helpful to petitioner's defense against the charge of first-degree murder, and the error was not rendered harmless by the admission of comparable proof. These errors, together with the diary's admission, were sufficiently grave that the California Court of Appeal clearly erred in rejecting petitioner's due-process claim. B. Erroneous Restrictions on Dr. Jackman's Testimony.
The state court of appeal held that the diary was not erroneously admitted; thus its cumulative-error analysis did not consider any prejudice caused by the diary.
The first of these two errors was the truncation of defense counsel's questioning of Dr. Jackman, petitioner's expert witness regarding his mental condition. The trial judge ruled that counsel could not ask Dr. Jackman questions designed to elicit testimony concerning, inter alia, how a manic state would affect a person's thought process and whether a bipolar disorder was characterized by impulsiveness and poor judgment. The state court of appeal found these rulings erroneous, holding that under state law Dr. Jackman should have been allowed to testify on these issues. Nevertheless, it held the error harmless because petitioner "was permitted to present some expert testimony about his mental disorder," including his opinion that a manic episode could cause a person to become stressed, agitated, and possibly violent (Pet. Exh. A at 35).
Specifically, the state court of appeal found these questions "relevant to the question of whether [petitioner] actually had the mental state for the crime" (Pet. Exh. A at 31). Under California law, expert testimony is permissible to show that due to a mental disorder a defendant did not actually form the mental state required for a crime, but cannot be used to show or negate the capacity to form the mental state with which the accused committed the act. Cal. Pen. Code § 28.
The error was clearly not harmless. To the contrary, it gutted petitioner's defense that he was suffering from a manic episode at the time of the stabbing, and that this episode hindered his ability to premeditate and deliberate. The prejudicial effect of the erroneous ruling is amply evidenced by the following exchanges at closing argument, beginning when defense counsel discussed petitioner's bipolar diagnosis and its relevance (RT 3581-82):
Defense Counsel: So what is the point of bringing this psychiatric information to your attention? We're not trying to tell you that Chuck was not guilty by reason of insanity, that he didn't know what he was doing at the time of Mary's death. This is not that type of case.
What we're saying is that it's very possible that Chuck was suffering from a manic episode at the time of Mary's death and that he was less likely to carefully consider his actions and less able to deal with the antagonism that was inherent in the relationship, apt to be more rash, more impulsive as a result of this disorder, less able to exercise good judgment.
Prosecutor: Objection.
The Court: Sustained.
Prosecutor: Move to ask the Court to instruct the jury that there was no evidence to support the last two or three assertions.
The Court: Ladies and gentlemen of the jury, I'm going to instruct you as follows: The Court will be the final arbitrator in terms of the law that applies to this case and how you're to apply that law to the facts. Arguments of counsel, whether it be the prosecution or the defense, are merely argument and not evidence.
Then, in his rebuttal, the prosecutor explained his objection, and in doing so revealed the crippling effect of the erroneous exclusion of Dr. Jackman's testimony (RT 3636) (emphasis added):
Prosecutor: There was a point that I objected during his argument, that was the second time, and the reason I objected is that there's no evidence in this case that bipolar disorder has an impact on one's ability to premeditate or deliberate. I'm sure that's what he would like you to believe.
You could throw off a witness talking about bipolar disorder and come in here and say that you'll do an instruction that says you may consider bipolar disorder in connection with the ability to deliberate.
Defense Counsel: Excuse me. I have to pose an objection here.
The Court: Go forward and we'll put your objection on the record at the conclusion.
Defense Counsel: Thank you.
Prosecutor: The evidence is that bipolar disorder has not been testified to as diminishing a person's ability to premeditate or deliberate at all.
The preclusion of Dr. Jackman's testimony kept from the jury linchpin evidence regarding petitioner's bipolar-disorder defense. Thus the fourth Tinsley factor weighs heavily in petitioner's favor here. On the other hand, petitioner did not rely heavily on this defense at trial. In fact, he did not plan on calling Dr. Jackman as a witness at all until the government called Dr. Acenas, his treating psychiatrist. The fifth Tinsley factor, therefore, tips toward the government. Although these factors point in opposite directions, this order holds that there was at least some prejudice to the defense from the limitations placed on Dr. Jackman's testimony. Even if Dr. Jackman was not called to bolster petitioner's primary defense, he was still a crucial witness regarding a coherent defense that petitioner had every right to raise.
C. Erroneous Exclusion of Evidence of Mary's Hostility.
In evaluating petitioner's cumulative-error argument, the state court of appeal also took into account his claim that the trial judge committed prejudicial error by excluding evidence of statements Mary made while she was in the psychiatric ward the week of December 4, thirteen days before the final fight of her life. There, her nurse noted she had feelings of "anger" and vindictiveness toward petitioner (RT 2262). When defense counsel asked the nurse, appearing as a prosecution witness, to describe "the angry part," the prosecutor objected (RT 2263). Defense counsel submitted the nurse's notes as an offer of proof. He said, "I think the fact that shortly before her death . . . she was feeling vindictive towards her husband, wanted to hurt him, is relevant to how she behaved, what her intent was, what her motives were on the date of her death" (RT 2265). The trial judge sustained the prosecutor's objection, holding that this evidence would be inadmissible under state law (RT 2265).
The California Court of Appeal held that the trial judge's refusal to allow this testimony into evidence was error, concluding, "Statements of Mary's desire to hurt defendant were relevant to show her character for violence and to support defendant's credibility. Even if defendant was unaware of the statements, they were relevant to support defendant's assertion that Mary acted violently toward him on the night of the homicide" (Pet. Exh. A at 41). Yet here again, it held the error harmless.
Exclusion of the nurse's testimony regarding Mary's feelings of anger was not harmless. As the state court of appeal noted, statements of Mary's desire to hurt petitioner were relevant to show her penchant for violence and, especially, to support petitioner's credibility. What the state court of appeal overlooked, however, was that this evidence was particularly relevant and helpful to the defense because the statements were made so close to the time of the stabbing. In its statement of facts, the state court of appeal said that "Mary initially responded to [petitioner's] provocation with anger, but after a while she became more passive" ( id. at 2). The nurse's testimony would have countered this assertion by indicating that Mary remained aggressive toward petitioner up through the time of the stabbing. There was no evidence that fully filled the gap left by its exclusion.
* * *
This order agrees with the state court of appeal that certain other purported errors asserted as part of petitioner's cumulative-error claim were either not errors at all ( e.g., the exclusion of certain alleged past acts of violence by Mary), or harmless because they were cumulative of other evidence ( e.g., the exclusion of portions of Richard Parle's conditional examination). Yet when taken together the three errors discussed above — the admission of the diary, the limitation of Dr. Jackman's testimony, and the exclusion of testimony regarding Mary's hostility toward petitioner two weeks before the stabbing — had a substantial and injurious effect on the trial. Each error altered the evidentiary balance on the sole issue at trial, petitioner's state of mind. The diary provided the prosecution with evidence of premeditation and deliberation. Petitioner was not allowed to effectively counter this evidence with Dr. Jackman's testimony or evidence of Mary's hostility. This tipped the scales sufficiently to require issuance of a writ on petitioner's due-process claim.
4. Right to Present a Defense and to Testify on One's Own Behalf.
Finally, petitioner claims that there was an additional, related series of erroneous evidentiary rulings that had the effect of denying him his constitutional rights to testify on his own behalf and to present a defense. These rulings restricted his testimony regarding a threat that Mary had supposedly made to him a few days before the stabbing.
According to petitioner, on December 13, 1993, Mary had threatened him with a "drive-by" shooting, which contributed to an honest but unreasonable fear of Mary at the time of the stabbing (RT 2931). After the prosecutor objected to this testimony and defense counsel made an offer of proof, the trial judge rejected the proposed testimony under California Evidence Code Section 352 (RT 2933). Defense counsel then sought guidance as to how to proceed. The trial judge advised, "I think that the record would be more complete if you ask your questions, the objections be made, and the court make its ruling, rather than to have a standing objection as to any questions that may have been raised in that fashion" ( ibid.).
California Evidence Code Section 352, comparable to Federal Rule of Evidence 403, provides that a trial judge may in his discretion exclude evidence if its probative value is substantially outweighed by the probability that its admission will (a) necessitate undue consumption of time or (b) create substantial danger of undue prejudice, of confusing the issues, or of misleading the jury.
When the proceedings resumed in the jury's presence, petitioner testified about events leading up to December 17, 1993. When it came time to discuss the alleged threat, the following colloquies ensued (RT 2969-70, 2978-79, 2980-81, 2990-91, 2992):
Defense Counsel: After the time that you found [the guns] to be missing, did Mary ever threaten to shoot you?
Petitioner: Yes, sir.
Defense Counsel: On how many occasions?
Petitioner: At least half a dozen.
Defense Counsel: And what would she say?
Prosecutor: Objection. Hearsay.
The Court: Sustained.
Defense Counsel: Did she threaten you within a week of her death?
Petitioner: Yes, she did.
Prosecutor: Objection. Hearsay.
The Court: Sustained.
Prosecutor: Move to strike.
The Court: Motion granted
* * *
Petitioner: My wife Mary called me [at work on December 13, 1993].
Defense Counsel: And what did she say?
Prosecutor: Objection. Hearsay.
The Court: Sustained.
Defense Counsel: What did she — what did she tell you during that phone call that had an effect on you?
Petitioner: This is one of the most — top five most scariest moments I was ever in, at that moment. Especially two or three hours later compounded.
Defense Counsel: And on December 17, 1993, did you have in mind those things that she told you on December 13th?
Prosecutor: Objection. Hearsay — excuse me, leading.
The Court: Sustained.
* * *
Defense Counsel: You had a phone call at work on December 13th?
Petitioner: Yes, sir.
Defense Counsel: Did that have some impact on you and your thinking at a later date?
Petitioner: Yes, sir.
Defense Counsel: What kind of impact did it have?
Petitioner: How do I word it so it is not hearsay. There was — there was an actual — my son Christopher and my life was going to be terminated, period. You are going to die. I am going to kill you and then kill Christopher.
Prosecutor: Objection. Hearsay.
The Court: Sustained.
Prosecutor: Motion to strike.
The Court: Motion to strike granted.
* * *
Petitioner: . . . I was scared out of my mind [on the night of the stabbing] because what was going through my mind was the phone call that previous Monday. She was going to do a drive-by shooting, kill me, and then to spite the Parle family, she was going to blow away Christopher, was still on my mind.
Prosecutor: Objection. Hearsay.
The Court: Objection will be sustained.
Defense Counsel: Your Honor, I understand this to just be his state of mind, and I would ask for that.
The Court: Objection?
Prosecutor: The objection is to what she allegedly said in the phone call was hearsay. I move to strike it for that reason.
The Court: All right. Objection will be sustained. Motion to strike is granted. Now, it's being offered for his state of mind, any objection?
Prosecutor: State of mind requires a finding of reliability.
The Court: No. Just yes or no.
Prosecutor: I object under 1222.
The Court: Objection will be sustained.
* * *
Defense Counsel: Now, this fear you felt, was this as a result of things Mary had told you?
Petitioner: Yes.
Prosecutor: Objection. Foundation.
The Court: Foundation?
Prosecutor: There's been no evidence of her saying anything to him.
The Court: Sustained.
Defense Counsel: This feeling that you had that Mary was a dangerous person, was it a result of things that she had told you about her past?
Petitioner: That Monday when she called me at the store and she said she was going to kill me.
Prosecutor: Objection.
The Court: Objection sustained.
Prosecutor: Move to strike.
The Court: Motion to strike granted.
* * *
Similar testimony by petitioner regarding Mary's threat was likewise stricken as hearsay on several other occasions (RT 3099, 3149, 3164). At one point, counsel approached the trial judge for a sidebar discussion. The prosecutor complained about having to make so many objections. Defense counsel expressed his disagreement with the trial judge's hearsay rulings (RT 2994). The trial judge advised that regardless of petitioner's theory of the case, it did not consider testimony going to the threats relevant to a self-defense or heat-of-passion argument because Mary did not have any weapon in her hand at the time she was stabbed (RT 2994-95).
Petitioner claims that the rulings violated his Sixth and Fourteenth Amendment rights to present a defense and to testify on his own behalf. Before the state court of appeal, respondent agreed that the trial judge should not have sustained the hearsay objections to testimony regarding Mary's threats. Yet it said Mary's statements could have been properly excluded pursuant to Section 352 on the ground they were cumulative of other evidence. The state court of appeal held that even if it were to find the trial judge's decision wrong under Evidence Code Section 352, since the jury heard other testimony regarding the threat, "the cumulative nature of the evidence would render the error harmless" (Pet. Exh. A at 42). In arguing that the trial judge's hearsay rulings kept him from presenting a defense, petitioner points to Rock v. Arkansas, 483 U.S. 44 (1987), as the governing Supreme Court precedent. In Rock, the petitioner was accused of manslaughter. She could not remember the precise details of the shooting. At her attorney's suggestion, she was placed under hypnosis. After the hypnosis, she recalled that the gun that fired the fatal bullet had discharged when her husband grabbed her arm during a scuffle. Subsequent examination of the gun discovered that the gun was defective and prone to fire when hit or dropped without the trigger having been pulled. The prosecutor moved to exclude the petitioner's post-hypnosis testimony. After a pretrial hearing, the trial judge so ordered pursuant to a state evidentiary rule providing that hypnotically-refreshed testimony of witnesses was inadmissible per se. The petitioner was limited to testifying about matters remembered and stated to an examiner before undergoing hypnosis. Every time she ventured outside these bounds, the prosecutor's objections were sustained. The petitioner was convicted of manslaughter. Id. at 46-48.
Rock held that the per se exclusion rule violated the petitioner's constitutional rights. Rock provided that a state "may not apply a rule of evidence that permits a witness to take the stand, but arbitrarily excludes material portions of his testimony." Id. at 55. Rock noted that the right to present relevant testimony "is not with limitation," but rather "may, in appropriate cases, bow to accommodate other legitimate interests in the criminal trial process." Ibid. Yet limitations on a defendant's right to testify "may not be arbitrary or disproportionate to the purposes they are designed to serve." Id. at 56. Interpreting Rock, the Ninth Circuit recently held that "the Federal Constitution affords [a defendant] an opportunity to present his own testimony and that of the victim concerning his state of mind at the time of the attack." Greene v. Lambert, 288 F.3d 1081, 1093 (9th Cir. 2002).
For example, a defendant's right to testify is not unduly restricted by rules limiting his testimony to relevant matters. United States v. Moreno, 102 F.3d 994, 998-99 (9th Cir. 1996).
Petitioner posits that evidence of Mary's threats was relevant and admissible for several non-hearsay purposes going to his state of mind. He asserts the threats constituted verbal provocation that could have caused a reasonable person in his position to act rashly from passion rather than judgment in a subsequent fight, supporting his heat-of-passion defense. He also claims that the threats supported his defense that he acted with an honest but unreasonable belief regarding the need for self-defense.
Petitioner acknowledges, as did the state court of appeal, that the record contains other references to Mary's threats. The jury had before it petitioner's taped interview with police, in which petitioner told officers that Mary had threatened a drive-by shooting (3 CT 41, 48-49). Also admitted was the testimony of petitioner's co-worker, George Cunha, who said that soon before the homicide petitioner told him that Mary was angry with him and he was afraid Mary would come and "do a drive-by shooting" and "blow out the front windows" of the store (RT 2593, 2595). Officer Pogue also testified that petitioner said Mary had threatened to "blow [his] brains out" while he slept (RT 747, 770). Richard Parle testified that on or around Thanksgiving 1993. Mary told him that if petitioner "didn't get in line, she'd shoot his ass" (3 CT at 227), and then produced a handgun (3 CT at 227-28).
More important, petitioner himself also testified about Mary's threats and their effect on his thinking on the evening of December 17, 1993. Unlike the situation in Rock, his testimony on these issues was not completely precluded. Petitioner testified that at some point on or after November 1, 1993, Mary had taken several of his guns. Counsel asked if Mary made any threats of bodily harm, to which petitioner said yes (RT 2965). Only when counsel asked what the threats were did the prosecutor object; this objection was sustained ( ibid.). The jury thus had before it evidence that Mary had (1) taken some of petitioner's guns; and (2) threatened him in the weeks before the homicide. Soon after came the following colloquy, repeated from the start of the lengthy excerpt provided earlier (RT 2969):
Defense Counsel: After the time after you found them (the guns) to be missing, did Mary ever threaten to shoot you?
Petitioner: Yes, sir.
Defense Counsel: On how many occasions?
Petitioner: At least half a dozen.
Defense Counsel: And what would she say?
Prosecutor: Objection. Hearsay.
Court: Sustained.
The jury therefore also had evidence that not only did Mary have guns and had threatened petitioner, but also that she had specifically threatened to shoot him. Petitioner later testified that he would not let Mary out his sight on December 17, 1993, because "she said she was going to blow my fucking head off" and "there were ten high powered, large caliber handguns that were all missing" (RT 2988). Significantly, he then testified that he was acting "nervously" that night and "was in fear" because "things were escalating into a fight, and she (Mary) was in this mood. I have 13 firearms missing, a lot of hiding places in the kitchen, living room, dining room, desk area where she could have guns stashed" (RT 2991-92). Petitioner also testified that in battling with Mary that night he "was trying to keep all her hands in view, making sure she wasn't going to pull out any of the revolvers or automatics or anything from someplace" (RT 3009-10), and that he "was wondering what my chances were of going into the room and grabbing Christopher and making it down the street with him before I got my head blown off" (RT 3010). Thus the record also contained evidence that Mary's threat affected petitioner's state of mind the night of the homicide.
The Tinsley factors are also applicable to Sixth Amendment Claims. Chia, 281 F.3d at 1037. Given the foregoing, these factors weigh against petitioner's claim of error. The trial record induces some concern that petitioner was not allowed to testify in a proper maimer. That said, petitioner did testify as to Mary's threat. Also, the reliability of the threat allegation was suspect. No one other than petitioner heard Mary issue the threat (the other witnesses simply relayed what petitioner had told them). This lack of corroboration is particularly important given defense counsel's trial strategy. Although petitioner now asserts he was prejudiced through the curtailment of his trial testimony, this position is fundamentally inconsistent with how his counsel pled his case to the jury in his closing remarks. In his closing argument, defense counsel told the jury, "I'm not going to rely on anything that Chuck said either in his testimony or during his investigation" (RT 3541). Petitioner cannot now assert that a writ of habeas corpus must issue because he was not allowed to provide even more testimony that his trial counsel would later disavow. For these reasons, petitioner's claim that he was denied an opportunity to present a defense and to testify on his own behalf is denied.
Petitioner does not bring an ineffective assistance of counsel claim.
CONCLUSION
For the reasons stated, the petition for writ of habeas corpus is GRANTED. Petitioner must be released and his conviction VACATED unless the State of California timely re-tries petitioner.
STAY PENDING APPEAL
The effectiveness of this writ shall be STAYED until all timely appellate proceedings thereon are exhausted and final. If the writ is sustained after final appeal, this writ shall immediately become effective, unless the State of California re-tries petitioner within ninety days after the finality of this order or the finality of appellate proceedings sustaining this order.
IT IS SO ORDERED.
JUDGMENT
For the reasons stated in the accompanying order granting petition for writ of habeas corpus, JUDGMENT IS HEREBY ENTERED in favor of petitioner.
The Clerk of the Court shall CLOSE the file.
IT IS SO ORDERED.