Opinion
No. 2:15-cv-0807 KJM GGH P
10-02-2016
LAVELLA. McGARY, Petitioner, v. WILLIAM MUNIZ, Warden Respondent.
FINDINGS AND RECOMMENDATIONS
Introduction and Summary
Petitioner was found guilty of second degree murder with enhancements not relevant to the issue in this petition. He was sentenced to an aggregate term of 40 years to life. Several issues are raised:
1. violation of right to remain silent during police interviews;
2. exclusion of hearsay evidence which the defense desired to admit;
3. a Brady impeachment claim—the prosecution failed to produce impeachment evidence which discredited its forensic expert.
None of these claims warrant a vacating of petitioner's conviction in this federal habeas proceeding. The first issue is clearly procedurally defaulted (barred), and the remaining two issues fail on their merits. The petition should be denied.
Factual Background
The underlying facts of the case are useful for understanding the context of the issues.
A. The Prosecution's Case.
On June 26, 2008, the sister of co-defendant Daryl Gilmore (Daryl), Shaandreia Gilmore (Shy), had an argument with the victim, Ronelle "Nelly" Rucks (Rucks), with whom she was romantically involved. During this argument, which was later reported to Daryl and defendant, Rucks threatened to kill Shy and her children.
Rucks was also romantically involved with Lashay Charleston (Shay). Rucks, Shay and their son lived in Building R at the Marina Apartments on Maine Street in Vallejo. Shay knew Rucks also dated Shy.
On June 27, 2008 at about 11:00 a.m., Shay was outside her apartment with Rucks's sisters, Valerie and Tawana, when Shy drove up to the intersection of Marin and Pennsylvania in a burgundy-colored Nissan Pathfinder. With Shy in the Pathfinder were Maguerite (Mumu) and Marguerite's young nephew. The women began arguing despite Shy's initial statement that she wanted no trouble but simply to retrieve a pair of shoes she had given to Rucks. After five to ten minutes of arguing, Shy drove off without getting the shoes and Marguerite walked to her sister's nearby apartment.
A short time later, Daryl called defendant and told him Shy was having trouble with Rucks. Daryl wanted to "talk" to Rucks and asked defendant to come along for protection. Defendant agreed, and Daryl picked him up in Oakland in a green 1996 Mitsubishi before returning to Vallejo via the Carquinez Bridge. Defendant, who was always armed, carried a Browning Buckmark .22 caliber semiautomatic pistol loaded with 11 bullets.
At 1:03 p.m., Daryl was subject to a traffic stop for failing to pay the Carquinez Bridge toll. Although Daryl had no driver's license, he was let go with a citation. Daryl then continued to the Marina Apartments and parked next to Building R on Marin Street. The men entered the apartment complex and found Rucks, who was unarmed but accompanied by several men, including his brother Roy. Daryl and Rucks conversed briefly before Daryl and defendant decided to leave.
At about 1:30 p.m., Daryl and defendant exited through the apartment complex gate and walked toward their car. Rucks followed them, passing through the gate before stepping onto the sidewalk. At this point, defendant turned around and shot Rucks several times before running away. According to an eyewitness, as defendant ran, he followed behind two women who were also running down the sidewalk. Once the two women disappeared around the corner, defendant returned to Rucks, who was lying on
the sidewalk. Standing over Rucks, defendant shot him several more times as Rucks tilted his head toward him and tried unsuccessfully to get up.
Defendant then quickly jumped into the car with Daryl, who had made a U-turn and was double-parked on the west side of the street facing north against traffic. The car sped away, turning right onto Pennsylvania Street and right again onto Sonoma Boulevard. Rucks, meanwhile, bled to death within a few minutes despite the assistance offered by Shay, who had run outside upon hearing gunshots, and other bystanders, and despite the quick arrival of medical personnel.
Daryl drove to the mobile home park in San Leandro where he lived in a two-story house at Unit One with his girlfriend, Jackie, the mobile home park manager. Daryl and defendant spent the night there before being located and arrested by Vallejo police officers the next day. Specifically, at about 5:00 p.m. on June 28, officers arrived at the mobile home park looking for Daryl, who ran past them before being arrested. The officers mistakenly had a warrant to search Unit Four rather than Unit One, so several officers "froze" Unit One while another officer left to obtain the correct warrant. At about midnight, the officers were able to lawfully enter Unit One, where they found and arrested defendant. They also found the murder weapon under a couch in an upstairs bedroom, as well as several hundred rounds of ammunition. Both Daryl's Mitsubishi and Shy's Pathfinder were parked outside.
Defendant was interviewed at the Vallejo Police Department from about 2:00 a.m. to 3:00 a.m. on June 29, 2008, by Detectives James Melville and Matthew Mustard. After being advised of and waiving his Miranda rights, defendant, for about 45 minutes, denied being in Vallejo the previous day and denied any knowledge of Rucks's murder. In fact, defendant insisted he had been "high all day yesterday" on "powder" (methamphetamines), "didn't even go to sleep last night," and "don't even remember how [he] got to Daryl's house in the first place." However, after further conversation, defendant eventually admitted being at the crime scene and shooting Rucks. Defendant explained that he feared for his life because Rucks had earlier threatened Shy and her children and because, when meeting with defendant and Daryl, Rucks and his colleagues had their hands in their shirts as if holding weapons. Further, as he and Daryl left the apartment complex, Rucks followed them out the gate, telling them he "could have kilt us inside of the building" if he wanted to. It was at that point, defendant insisted, that he shot Rucks until running out of bullets.
B. The Defense Case.
Several women who had been romantically involved with Rucks were permitted to testify regarding his violent nature. For example, Shay testified that, on February 25, 2007, she and Rucks were arguing in a store parking lot in Vallejo when Rucks broke her car windshield and threw her keys. A police officer arrived a short time later, and Shay told him Rucks had choked her twice. Shay later
signed a statement that Rucks had threatened to shoot up her house and kill everyone inside, although at trial she testified that her statements were false.
Makeba Fields testified that, in June 2008, Rucks hit her in the face after she became jealous of his involvement with another woman, causing her to be hospitalized. A few days later, Rucks grabbed her ponytail during an argument and slammed her head into a brick wall, causing another trip to the hospital. Nonetheless, Fields did not think Rucks had threatened to kill her because "[he] wasn't like that." Her statement was contradicted by Police Officer John Boyd, who testified that he observed a lump on Field's head the size of a silver dollar after he was dispatched to the hospital, and that she told him Rucks threatened: "I'm your boss and I'll kill you, bitch."
Myesha Williams testified that, on January 26, 2006, after meeting Rucks at his cousin's house, he requested a ride to the store. She complied with his request however, when she thereafter refused to drive him to Richmond, he told her: "You're either going to take me or get out." When Williams told him she was leaving, Rucks tried to take her keys, slapped her, and ultimately used one hand to choke her and the other to retrieve a gun from his pants. Rucks then put the gun to her head and told her to either get out or go with him, at which point Fields grabbed the keys, left the car and ran into the gas station to call the police. Rucks drove off after discovering Fields had mistakenly left the ignition key in the car.
Finally, Lakisha Gauner, who used to date Rucks and had a child with him, testified that, on April 20, 2005, Rucks punched her in the face with a closed fist during an argument at their apartment. When she went to the bathroom to call 911, Rucks threatened to hit her again. Then, in September of 2005, he punched her in the eye, dragged her to the couch and tried to smother her with a pillow. She went to a friend's house and called the police. On March 28, 2006, Rucks choked her with a heavy metal jewelry chain and, on July 2006, kicked her apartment door and threatened to beat her up if she didn't let him inside. Finally, in February 2008, Rucks became enraged when Gauner was late dropping off their son. He slapped her and pulled out some of her hair before putting the child in his van and driving away.
In addition to this testimony from Rucks's former girlfriends, defendant offered expert testimony from Dr. Randall Solomon, the medical director and senior supervising psychiatrist at California Medical Facility, regarding his problematic personal history and resulting cumulative mental trauma. Specifically, Dr. Solomon testified that, due to defendant's unstable and stressful upbringing, he lacked a sense of safety and was more prone to impulsive and over-reactive behavior when he felt threatened. Defendant's behavior at the time of Rucks's death was an example of this tendency to overreact in hostile environments. Dr. Solomon acknowledged, however, that he did not perform psychological tests on defendant and found no evidence of psychosis. Moreover, while defendant had a "constellation of symptoms" and "reactions" similar to persons suffering from post traumatic stress disorder
(PTSD), including increased aggression and hyper-alertness, Dr. Solomon concluded that defendant did not meet the criteria for PTSD.People v. McGary, 2013 WL 6713222 *1-2 (Cal. App. 2013) (footnotes omitted).
C. Jury Deliberations, the Verdict and Sentencing.
On September 8, 2010, a jury found defendant not guilty of first degree murder but guilty of second degree murder. The jury also found true the enhancements for personal discharge of a firearm and personal discharge of a firearm causing great bodily injury. Following a sentencing hearing on June 27, 2011, the trial court imprisoned defendant for an aggregate term of 40 years to life. This appeal followed.
Discussion
The AEDPA legal standards are contained in Appendix A to these findings. The first issue, however, is decided on the grounds of procedural default, and those standards are discussed below.
The Miranda Right to Remain Silent Issue
Petitioner insists here, as he did on direct review, that he several times asked the interrogating police detective (a Detective Mustard) to cease questioning him in his post-arrest interview, but the detective avoided his request by feigning confusion, followed by encouragement of petitioner to continue interrogation. The precise facts of the interrogation are not important because petitioner's trial attorney, not only "failed to object" to admission of the confession, but also affirmatively told the trial court that he did not object to the statement coming into evidence.
The undersigned has not investigated the strategy of defense counsel not to object to the very damaging admissions as no assertion of ineffective assistance of counsel has been brought forward by petitioner. However, since the murder weapon was found in petitioner's residence, along with eyewitnesses documenting petitioner's involvement in the murder, defense counsel may well have been focusing upon the asserted lack of intent required for murder, and not petitioner's factual involvement in the murder per se.
The Court of Appeal provided the context and procedural ruling for this issue:
At the outset of our inquiry, we must address the People's contention that defendant forfeited his Miranda claims by not raising them in the trial court. As the People point out, the California Supreme Court has not hesitated to reject Miranda claims on appeal based upon the well-established principle of forfeiture.
Specifically, "'Evidence Code section 353, subdivision (a) allows a judgment to be reversed because of erroneous admission of evidence only if an objection to the evidence or a motion to strike it was "timely made and so stated as to make clear the specific ground of the objection." Pursuant to this statute, "'we have consistently held that the "defendant's failure to make a timely and specific objection" on the ground asserted on appeal makes that ground not cognizable."' [Citation.] [Citation.] 'To satisfy Evidence Code section 353, subdivision (a), the objection or motion to strike must be both timely and specific as to its ground. An objection to evidence must generally be preserved by specific objection at the time the evidence is introduced; the opponent cannot make a "placeholder" objection stating general or incorrect grounds (e.g., "relevance") and revise the objection later in a motion to strike stating specific or different grounds.' [Citation.]" (See People v. Rundle (2008) 43 Cal.4th 76, 116, disapproved on other grounds in People v. Doolin (2009) 45 Cal.4th 390, 421, fn. 22.)
Here, the record reflects that, while the trial court did conduct a hearing to determine the admissibility of defendant's statements during his custodial interrogation, this hearing was held on the People's written motion rather than on defendant's motion. Defense counsel, while filing several motions in limine regarding the admissibility of specific items of evidence, filed nothing in reply to the People's motion, and filed nothing otherwise related to the admissibility of his extra-judicial statements to detectives. In addition, at the hearing on the People's motion, defense counsel raised no argument that the detectives violated defendant's Miranda rights. Quite to the contrary, defense counsel advised the court, "I'm not objecting to the introduction of his statement." Further, defense counsel stated, "Yes, Your Honor," when the court then confirmed, "neither defendant is expressing any objection to the admission of the statements that were attributed to Mr. McGary as stated in the [prosecution's] Miranda motion filed July 6, 2010, is that a correct statement?" Based on defense counsel's confirmation, the trial court ruled that an evidentiary hearing with respect to defendant's statements would not be necessary.
The trial court thereafter sought additional confirmation from counsel when considering the People's request to grant with prejudice its motion to admit defendant's extra-judicial statements:
"[COURT:] There's no indication that I can see of any coercion on Mr. McGary's part. There's no indication that he unequivocally stood on his right to remain silent or unequivocally at any point in the interview withdrew, if you will, his consent to carry on with the interviews. [¶] And, as a result, it appears the court should rule that all of the statements that are represented in the Miranda motion itself will be admissible in Mr. McGary's trial; and that that order ... if another Judge is hearing the case, the ruling needs to be made such that it's binding now on the trial. Is there any objection to the Court specifying that that's the duration of the ruling, [defense counsel], regardless of whether the case is heard by this Judge or another Judge?
"[DEFENSE COUNSEL]: Well, Your Honor, I can tell the Court this morning that I do not object on Miranda grounds to the introduction of my client's statement. I received [the prosecutor's] motion to admit the statement and citations to authority regarding Miranda. And I have not filed any written objection, and I am not objecting this morning on Miranda grounds. So as to that issue, I have no objection. [¶¶]
"[COURT]: All Right. So the question is: Do we have this order crystallized, and ruling, such that the People can depend on it without further concerns at the time of trial, regardless of who tries the case? And I'm expecting that to be me, but things could happen. Is that agreeable, [defense counsel]?
"[DEFENSE COUNSEL:] Yes, it is, Your Honor." (Italics added.)
Thus, based at least in part on defense counsel's acquiescence, the trial court ruled defendant's statements admissible "with prejudice to all parties at trial."
Given this record, we agree with the prosecution that defendant has forfeited the right to challenge on Miranda grounds the admission of his extra-judicial statements to investigators. While our reasoning should already be well-understood by counsel, we nonetheless take time to reiterate it: "The objection requirement is necessary in criminal cases because a 'contrary rule would deprive the People of the opportunity to cure the defect at trial and would "permit the defendant to gamble on an acquittal at his trial secure in the knowledge that a conviction would be reversed on appeal."' [Citation.] 'The reason for the requirement is manifest: a specifically grounded objection to a defined body of evidence serves to prevent error. It allows the trial judge to consider excluding the evidence or limiting its admission to avoid possible prejudice. It also allows the proponent of the evidence to lay additional foundation, modify the offer of proof, or take other steps designed to minimize the prospect of reversal.' [Citation.] [¶] ... [Moreover,] 'the objection must be made in such a way as to alert the trial court to the nature of the anticipated evidence and the basis on which exclusion is sought, and to afford the People an opportunity to establish its admissibility.' [Citation.] What is important is that the objection fairly inform the trial court, as well as the party offering the evidence, of the specific reason or reasons the objecting party believes the evidence should be excluded, so the party offering the evidence can respond appropriately and the court can make a fully informed ruling. If the court overrules the objection, the objecting party may argue on appeal that the evidence should have been excluded for the reason asserted at trial, but it may not argue on appeal that the court should have excluded the evidence for a reason different from the one stated at trial. A party cannot argue the court erred in failing to conduct an analysis it was not asked to conduct." (People v. Partida (2005) 37 Cal.4th 428, 434-435 [italics added].)
Here, despite his counsel's clear and repeated insistence in open court that no Miranda challenge was being made, defendant
contends the forfeiture rule should not apply because, based on the People's motion, the trial court had reason to, and did, consider whether any Miranda violation had occurred. In doing so, defendant relies on a California Supreme Court case, People v. Williams (2010) 49 Cal.4th 405, 424, wherein the court declined to base its decision on the forfeiture rule, despite the defense counsel's failure to raise a Miranda objection below, because the People's motion to admit the defendant's extra-judicial statements "brought certain elements of the Miranda claim before the court, including the possibility that defendant had invoked his right to counsel at the outset of the first interrogation, and that his waiver of rights on that occasion was involuntary because of the officers' mention of the death penalty." (Id. at pp. 424-425.)People v. McGary, 2013 WL 6713222, at *5-6.
We do not find defendant's authority helpful in our case. First, contrary to defendant's suggestion, the high court in People v. Williams did not actually rely on the forfeiture principle when ruling; rather, it "[a]ssum [ed], without deciding, that defendant's claims were preserved" before concluding his claims lacked merit. (Id. at pp. 424-425.) Moreover, contrary to our defendant, the defendant in People v. Williams, did in fact testify at the lower court hearing that "he 'continually' invoked his right to counsel during several days of interrogation, but that his invocation was disregarded." (Id. at p. 425.) As the record set forth above demonstrates, neither defendant nor his counsel took any position contrary to the People's motion in this case, much less offered evidence or testimony suggesting a Miranda violation. As such, we stand by our conclusion that defendant has forfeited this issue. [footnote 11]
[Indeed, on this record, it appears defense counsel may have actually invited the purported error: "'The doctrine of invited error is designed to prevent an accused from gaining a reversal on appeal because of an error made by the trial court at his behest. If defense counsel intentionally caused the trial court to err, the appellant cannot be heard to complain on appeal.... [I]t also must be clear that counsel acted for tactical reasons and not out of ignorance or mistake.' In cases involving an action affirmatively taken by defense counsel, we have found a clearly implied tactical purpose to be sufficient to invoke the invited error rule. (See [citations].)" (People v. Coffman & Marlow (2004) 34 Cal.4th 1, 49, quoting People v. Wickersham (1982) 32 Cal.3d 307, 330, disapproved on other grounds in People v. Barton (1995) 12 Cal.4th 186, 201.)" Here, defendant's counsel did more than acquiesce to the trial court's Miranda ruling, he "affirmatively joined" in it, and thus should not now be permitted to claim the court erred. (People v. Coffman & Marlow, supra, 34 Cal.4th at p. 49.)]
Beyond peradventure of a doubt in this case, counsel did not object to the statement, and affirmatively told the trial court that he had no objection. As respondent argues, the contemporaneous objection requirement precludes petitioner's argument on the merits of his alleged Miranda violation.
This claim is procedurally defaulted. Petitioner makes no challenge to the adequacy of the contemporaneous objection rule, as well he could not, given the decades long case history upholding the adequacy of this particular procedural default. The Ninth Circuit has recognized and applied California's contemporaneous objection rule, section 353 of the California Evidence Code, which provides that a criminal defendant must make a timely objection to the admission of evidence at trial in order to preserve a claim challenging that evidence on appeal, as grounds for denying a federal habeas corpus claim under the doctrine of procedural default where there was a failure to object at trial. See, e.g., Fairbanks v. Alaska, 650 F.3d 1243, 1256 (9th Cir. 2011); Inthavong v. Lamarque, 420 F.3d 1055, 1058 (9th Cir.2005); Paulino v. Castro, 371 F.3d 1083, 1092-1093 (9th Cir.2004); Melendez v. Pliler, 288 F.3d 1120, 1125 (9th Cir.2002) (citing Garrison v. McCarthy, 653 F.2d 374, 377 (9th Cir.1981)); Vansickel v. White, 166 F.3d 953, 957 (9th Cir.1999); Bonin v. Calderon, 59 F.3d 815, 842-843 (9th Cir.1995). See also MacDonald v. Paramo, 2016 WL 1670524 (E.D. Cal. 2016). Under the contemporaneous objection rule, California courts construe broadly the sufficiency of objection that preserves issues for appellate review, focusing on whether the trial court had a reasonable opportunity to rule on the merits of the objection. Melendez, 288 F.3d at 1125.
Even assuming that the Bennet v. Mueller----- paradigm survives recent Supreme Court cases reviewing and reversing Ninth Circuit refusals to apply the bar, see e.g. Johnson v. Lee, ___U.S.___, 136 S.Ct. 1802 (2016), (not utilizing the three part burden/consistency analysis, but simply relying on explicative state case authority), petitioner here had the burden here to produce some evidence that the bar is not consistently applied. He has not done so.
Bennett v. Mueller, 322 F.3d 573, 585 (9th Cir. 2003).
Indeed, as observed by the Court of Appeal, see footnote 11 to the Court of Appeal opinion, supra, counsel's strategic determination has all the earmarks of invited error. See, e.g., Leavitt v. Arave, 383 F.3d 809, 832 (9th Cir. 2004) (recognizing that invited error doctrine may be a valid basis for procedural default under habeas review where the state court clearly and expressly invoked the invited error doctrine).
The finding that procedural bar can be applied does not end the analysis, as petitioner might demonstrate cause and prejudice for the default. This exception to procedural default requires permissible "cause," i.e., a fact external to petitioner's defense which caused the default. High v. Ignacio, 408 F.3d 585, 590 (9th Cir. 2005) (quoting Murray v. Carrier, 477 U.S. 478, 488 (1986)). Objective factors that exemplify cause include interference by officials that makes compliance with the state's procedural rule impracticable, a showing that the factual or legal basis for a claim was not reasonably available to counsel, or constitutionally ineffective assistance of counsel. Murray, 477 U.S. at 488. Prejudice requires a finding of actual harm resulting from the alleged constitutional violation. Thomas v. Lewis, 945 F.2d 1119, 1123 (9th Cir. 1991). If petitioner cannot demonstrate cause and prejudice, his claim must be one which would cause a fundamental miscarriage of justice if not reviewed on the merits, i.e., petitioner is actually innocent of the conviction offense. See Majoy v. Roe, 296 F.3d 770, 775-76 (9th Cir. 2002).
Petitioner does not argue cause and prejudice in the petition or traverse. Nor is the Miranda issue here one that implicates actual innocence. That is, there is no justification for finding here that petitioner gave incriminating statements which were not true and which were the result of undue coercion.
Accordingly, this claim should be denied as being procedurally defaulted.
Exclusion of Defense Requested Hearsay Evidence
The Court of Appeal again thoroughly explicated the basis of this claim and its adverse-to-petitioner ruling:
Defendant contends the trial court erred by excluding from evidence Shy's hearsay statement to Detective Mustard that Rucks's sisters shattered her apartment windows just before his murder. This purported error was, according to defendant, prejudicial because "if the jury found [he] believed, based on his knowledge of Rucks's and his sisters' behavior that they were violent towards Shy, Daryl and [defendant], that would have been a basis for acquittal of second degree murder...."
"A trial court has broad discretion in determining relevancy, but it cannot admit evidence that is irrelevant or inadmissible under
constitutional or state law. [Citation.] 'The proponent of proffered testimony has the burden of establishing its relevance, and if the testimony is comprised of hearsay, the foundational requirements for its admissibility under an exception to the hearsay rule. [Citations.] Evidence is properly excluded when the proponent fails to make an adequate offer of proof regarding the relevance or admissibility of the evidence. [Citations.]' (Ibid.; see Evid.Code, § 1200, subd. (b).)" (People v. Blacksher (2011) 52 Cal.4th 769, 819- 820.) Such rulings will be overturned on appeal only upon a showing of abuse of that discretion. (People v. Minifie (1996) 13 Cal.4th 1055, 1070; People v. Cudjo (1993) 6 Cal.4th 585, 609.)
The record reflects that, at trial, Detective Mustard testified regarding his interview with Shy shortly after the murder. Relevant here, Detective Mustard testified over defense objections that Shy did not mention being scared of Rucks or being threatened by him. On cross examination, defense counsel asked Detective Mustard whether Shy told him "that the night before the shooting, Ronelle Rucks's sisters came over to her apartment and smashed out all her windows." [footnote 12: According to defendant, Shy's hearsay statement regarding the actions of Rucks's sisters was disclosed by the prosecution during discovery.] The prosecutor objected on hearsay and relevance grounds, and the trial court sustained the objection, barring any questions related to Rucks's sisters.
On appeal, defendant acknowledges that Shy's statement regarding the actions of Rucks's sisters is hearsay given that Shy did not appear for trial. However, defendant insists her statement is nonetheless admissible pursuant to Evidence Code section 356 and relevant to prove his state of mind for purposes of his self-defense theory. We disagree.
Evidence Code section 356 provides in relevant part: "Where part of an act, declaration, conversation, or writing is given in evidence by one party, the whole on the same subject may be inquired into by an adverse party...." (Evid.Code, § 356.) "However, this provision '"is necessarily subject to the qualification that the court may exclude those portions of the conversation not relevant to the items thereof which have been introduced."' (Citation; Legislative Committee Comment to Evid.Code, § 356.) 'The rule is not applied mechanically to permit the whole of a transaction to come in without regard to its competency or relevancy....' (Witkin, Cal. Evidence ... § 320, p. 283.)" (People v. Perry (1972) 7 Cal.3d 756, 787 [fn. omitted].) In this case, defendant theorizes the evidence is relevant to prove his state of mind, and specifically the legitimacy of his belief in the need to defend himself against Rucks, a theory the trial court rejected when sustaining the prosecutor's objections. We conclude the trial court's ruling was within the broad scope of its discretion, notwithstanding Evidence Code section 356.
In reaching this conclusion, we do not disagree with defendant's point that, in some cases, "one's fear of another may come from a threat either by that person, or a close associate." However, the threat, whether made by the victim or, as here, the victim's family member, still must be directed toward the defendant such that the
defendant's state of mind, rather than someone else's, is impacted:People v. McGary, 2013 WL 6713222, at * 7-9.
"A person claiming self-defense is required to 'prove his own frame of mind,' and in so doing is 'entitled to corroborate his testimony that he was in fear for his life by proving the reasonableness of such fear.' [Citation.] The defendant's perceptions are at issue, and threats from a family and its friends may color a person's perceptions of that group no less than threats from an individual may color a person's perceptions of that individual. A defendant who testifies that he acted from fear of a clan united against him is entitled to corroborate that testimony with evidence 'tend[ing] in reason to prove' that the fear was reasonable. (Evid.Code, § 210 [defining relevant evidence].) Threats from the group on the defendant's life would certainly tend in reason to make the defendant fearful. This is especially true where the group has a reputation for violence, and that reputation is known to the defendant. Such threats are relevant to the defendant's state of mind—a matter 'of consequence to the determination of the action' (ibid.)—and the trier of fact is entitled to consider those threats along with other relevant circumstances in deciding whether the defendant's actions were justified." (People v. Minifie, supra, 13 Cal.4th, at p. 1066 [italics added]. See also People v. McKinnon (2011) 52 Cal.4th 610, 666.)
Here, there is no evidence defendant was told about, or otherwise knew about, the alleged threatening acts by Rucks's sisters toward Shy. And, as defendant's own authority explains, "'a defendant's evidence of self defense is subject to all the normal evidentiary rules, including Evidence Code sections 350 [only relevant evidence is admissible] and 352.' [Citation.] Evidence of third party threats is relevant only if other evidence shows [the defendant's] fear of imminent harm. (Ibid.) Even then its probative value may be slight.... The more vague the threats, and the weaker the logical link between them and the defendant's actions, the more the court may be justified in excluding them." (People v. Minifie, supra, 13 Cal.4th at p. 1070.)
Based on these principles, the trial court could properly find this evidence irrelevant to defendant's state of mind and, thus, not admissible. Simply put, for purposes of proving self defense, "[r]easonableness is judged by how the situation appeared to the defendant," not a third party such as Shy. (People v. Minifie, supra, 13 Cal.4th at p. 1068.) The trial court's ruling to exclude this evidence thus stands.
The only case that need be cited to set forth clearly established federal law as enunciated by the Supreme Court is Holmes v. South Carolina, 547 U.S. 319 (2006):
"[S]tate and federal rulemakers have broad latitude under the Constitution to establish rules excluding evidence from criminal
trials." United States v. Scheffer, 523 U.S. 303, 308, 118 S.Ct. 1261, 140 L.Ed.2d 413 (1998); see also Crane v. Kentucky, 476 U.S. 683, 689-690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (1986); Marshall v. Lonberger, 459 U.S. 422, 438, n. 6, 103 S.Ct. 843, 74 L.Ed.2d 646 (1983); Chambers v. Mississippi, 410 U.S. 284, 302-303, 93 S.Ct. 1038, 35 L.Ed.2d 297 (1973); Spencer v. Texas, 385 U.S. 554, 564, 87 S.Ct. 648, 17 L.Ed.2d 606 (1967). This latitude, however, has limits. "Whether rooted directly in the Due Process Clause of the Fourteenth Amendment or in the Compulsory Process or Confrontation Clauses of the Sixth Amendment, the Constitution guarantees criminal defendants 'a meaningful opportunity to present a complete defense.'" Crane, supra, at 690, 476 U.S. 683, 106 S.Ct. 2142, 90 L.Ed.2d 636 (quoting California v. Trombetta, 467 U.S. 479, 485, 104 S.Ct. 2528, 81 L.Ed.2d 413 (1984); citations omitted). This right is abridged by evidence rules that "infring[e] upon a weighty interest of the accused" and are "'arbitrary' or 'disproportionate to the purposes they are designed to serve.'" Scheffer, supra, at 308, 523 U.S. 303, 118 S.Ct. 1261, 140 L.Ed.2d 413 (quoting Rock v. Arkansas, 483 U.S. 44, 58, 56, 107 S.Ct. 2704, 97 L.Ed.2d 37 (1987)).Holmes, 547 U.S. at 324, 326-27 (emphasis and bold added).
* * *
While the Constitution thus prohibits the exclusion of defense evidence under rules that serve no legitimate purpose or that are disproportionate to the ends that they are asserted to promote, well-established rules of evidence permit trial judges to exclude evidence if its probative value is outweighed by certain other factors such as unfair prejudice, confusion of the issues, or potential to mislead the jury. See, e.g., Fed. Rule Evid. 403; Uniform Rule of Evid. 45 (1953); ALI, Model Code ofEvidence Rule 303 (1942); 3 J. Wigmore, Evidence §§ 1863, 1904 (1904). Plainly referring to rules of this type, we have stated that the Constitution permits judges "to exclude evidence that is 'repetitive ..., only marginally relevant' or poses an undue risk of 'harassment, prejudice, [or] confusion of the issues.'" Crane, 476 U.S., at 689-690, 106 S.Ct. 2142, 90 L.Ed.2d 636 (quoting Delaware v. Van Arsdall, 475 U.S. 673, 679, 106 S.Ct. 1431, 89 L.Ed.2d 674 (1986); ellipsis and brackets in original). See also Montana v. Egelhoff, 518 U.S. 37, 42, 116 S.Ct. 2013, 135 L.Ed.2d 361 (1996) (plurality opinion) (terming such rules "familiar and unquestionably constitutional").
Here, petitioner focuses somewhat on the perceived unfairness in the trial court's allowance of the prosecution's hearsay statement and the refusal to allow his hearsay statement. However, petitioner's perception is misplaced. As the Court of Appeal clearly found, the statement about the alleged breaking of windows, or threats to do so, at the time Rucks shooting took place, was not known to petitioner. There was no evidence submitted concerning petitioner's awareness of the Shy statement to the detective at the time of Rucks' murder. Indeed, the Court of Appeal found that it was only through the process of criminal discovery that the defense became aware of the alleged Shy statement. Because it was petitioner's state of mind at the time of the killing which was at issue with respect to whether the hearsay statement should be permitted, the statement sought to be admitted had no bearing whatsoever on that critical state of mind. No Holmes/Chambers error took place.
The Brady Claim
Petitioner believes that the prosecution's failure to release impeachment evidence pertinent to its forensic expert requires a vacating of the conviction. While there may well have been significant evidence with which to impeach the state's expert, pertinent to the expert's credibility in general, this is a case where the expert evidence was technical surplusage.
According to the Court of Appeal, the expert had been shown to have: (1) a history of alcohol abuse and arrest; (2) provided false and misleading testimony several times in the past;(3) been dismissed from previous forensic pathology positions for poor work quality; and (4) was involved in a Sonoma County case, People v. Pelfini (No. SCR30250), that was ultimately dismissed due, according to defendant, to Dr. Gill's incompetence and dishonesty.
The undersigned need not perform an entire Brady [v. Maryland, 373 U.S. 83 (1963)] analysis in that the materiality of the impeachment in this case was very inconsequential. The undersigned assumes that the on-its face, significant impeachment evidence should have been disclosed. However, petitioner must show: that under Brady, "evidence is material 'if there is a reasonable probability that, had the evidence been disclosed to the defense, the result of the proceeding would have been different.'" Strickler v. Greene, 527 U.S. 263, 280 (1999) (quoting United States v. Bagley, 473 U.S. 667, 682 (1985)).
In this case, the multiple bullet wounds that caused the death of the victim were absolutely undisputed. The witness statements describing the aftermath of the shooting, including the death agony of the decedent were undisputed. The fact that the murder weapon was found in petitioner's residence was undisputed. Petitioner admitted that he shot the victim. Yet, petitioner argues that the misdeeds of the prosecution's experts in other cases would have turned the tide against the prosecution case.
Rather, the forensic expert testimony in this case was only marginally necessary, establishing that indeed the victim died on account of the shooting. This was not a case where, for example, the forensic testimony on the angle of the bullet wound told the difference between murder and accidental death. This was a multiple bullet wound death where the assailant had emptied his .22 caliber weapon into the victim. While the testimony of the expert may have been required as a formality to place into the record a scientific cause of death, it was hardly material in the Brady sense vis-à-vis the shooter.
As the Court of Appeal found:
Here, the record makes clear Dr. Gill's testimony was far from the only evidence linking defendant to the murder. In fact, Dr. Gill's opinions regarding the cause and medical details of Rucks's non-accidental death were not challenged by the defense at trial or on appeal and are, in any event, corroborated by testimony from eyewitnesses at the scene who described hearing two to three gunshots, a pause, follow[ed] by several more gunshots (for a total of eight to 10 bullets). For example, several witnesses, including Matias Santini and Stephen Allen, who were working in an office building across the street from the Marina Apartments, testified that they first heard two or three gunshots and then, looking in the direction of those shots, saw the shooter, who was identified by two people as defendant (Shay and Lazzarotto), fire several more shots into another man lying just steps away on the sidewalk. Consistent with their testimony, Shay, who was in another apartment on the second floor of the same complex, heard several gunshots, ran outside, and saw Rucks lying on the side while defendant, holding a gun, was standing on the passenger side of a car parked on the street about 25 feet away. [footnote omitted.] In addition, Shay described watching as Rucks took his last few breaths just moments later. And police clerk Angela Cunha, who was present for the autopsy, observed about eight to 10 bullets being removed from Rucks's body. Finally, defendant's own lawfully-obtained admissions to police detectives of having fired at least five shots into Rucks were consistent with the testimony of these witnesses, and essentially put to rest any doubt as to his guilt. To the extent defendant's role in Rucks's death was a matter of dispute, it was his intent, not his manner of inflicting death, that was put to the jury.
Under these circumstances, even assuming Dr. Gill's credibility as a witness would have been undermined by admission of the identified newly-discovered evidence, we nonetheless have no trouble concluding the jury's assessment of defendant's guilt would not have been materially affected. (See People v. Delgado, supra, 5 Cal.4th at p. 328.) Thus, we conclude the trial court acted well within the scope of its discretion in denying defendant's motion for new trial.
The Court of Appeal was not AEDPA unreasonable in rejecting this claim.
Conclusion
Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, this court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A certificate of appealability may issue only "if the applicant has made a substantial showing of the denial of a constitutional right." 28 U.S.C. § 2253(c)(2). For the reasons set forth in these findings and recommendations, a substantial showing of the denial of a constitutional right has not been made in this case.
Petitioner's claims in this habeas action have no ultimate merit. Accordingly, IT IS HEREBY RECOMMENDED that:
1. The petition be denied; and
2. The District Court decline to issue a certificate of appealability.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, petitioner may file written objections with the court. The document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Any response to the objections shall be filed and served within fourteen days after service of the objections. Petitioner is advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). Dated: October 2, 2016
/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE /McGary-Final
Appendix A
AEDPA Standards
The statutory limitations of federal courts' power to issue habeas corpus relief for persons in state custody is provided by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The text of § 2254(d) states: An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim- (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
For purposes of applying § 2254(d)(1), clearly established federal law consists of holdings of the United States Supreme Court at the time of the last reasoned state court decision. Thompson v. Runnels, 705 F.3d 1089, 1096 (9th Cir. 2013) (citing Greene v. Fisher, ___ U.S. ___, ___, 132 S.Ct. 38, 44 (2011); Stanley v. Cullen, 633 F.3d 852, 859 (9th Cir. 2011) (citing Williams v. Taylor, 529 U.S. 362, 405-06, 120 S.Ct. 1495 (2000)). Circuit precedent may not be "used to refine or sharpen a general principle of Supreme Court jurisprudence into a specific legal rule that th[e] [Supreme] Court has not announced." Marshall v. Rodgers, ___ U.S. ___, ___, 133 S.Ct. 1446, 1450 (2013) (citing Parker v. Matthews, ___ U.S. ___, ___, 132 S.Ct. 2148, 2155 (2012)). Nor may it be used to "determine whether a particular rule of law is so widely accepted among the Federal Circuits that it would, if presented to th[e] [Supreme] Court, be accepted as correct. Id.
A state court decision is "contrary to" clearly established federal law if it applies a rule contradicting a holding of the Supreme Court or reaches a result different from Supreme Court precedent on "materially indistinguishable" facts. Price v. Vincent, 538 U.S. 634, 640, 123 S.Ct. 1848 (2003). Under the "unreasonable application" clause of § 2254(d)(1), a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from the Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Lockyer v. Andrade, 538 U.S. 63, 75, 123 S.Ct. 1166 (2003); Williams, 529 U.S. at 413; Chia v. Cambra, 360 F.3d 997, 1002 (9th Cir. 2004). In this regard, a federal habeas court "may not issue the writ simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable." Williams, 529 U.S. at 412. See also Schriro v. Landrigan, 550 U.S. 465, 473, 127 S.Ct. 1933 (2007); Lockyer, 538 U.S. at 75 (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a 'firm conviction' that the state court was 'erroneous.' "). "A state court's determination that a claim lacks merit precludes federal habeas relief so long as 'fairminded jurists could disagree' on the correctness of the state court's decision." Harrington v. Richter, 562 U.S. 86, 101, 131 S.Ct. 770 (2011) (quoting Yarborough v. Alvarado, 541 U.S. 652, 664, 124 S.Ct. 2140 (2004)). Accordingly, "[a]s a condition for obtaining habeas corpus from a federal court, a state prisoner must show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement." Harrington, 562 U.S. at 103.
The court looks to the last reasoned state court decision as the basis for the state court judgment. Stanley, 633 F.3d at 859; Robinson v. Ignacio, 360 F.3d 1044, 1055 (9th Cir. 2004). If the last reasoned state court decision adopts or substantially incorporates the reasoning from a previous state court decision, this court may consider both decisions to ascertain the reasoning of the last decision. Edwards v. Lamarque, 475 F.3d 1121, 1126 (9th Cir. 2007) (en banc). "[Section] 2254(d) does not require a state court to give reasons before its decision can be deemed to have been 'adjudicated on the merits.'" Harrington, 562 U.S. at 100. Rather, "[w]hen a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 784-85. This presumption may be overcome by a showing "there is reason to think some other explanation for the state court's decision is more likely." Id. at 785 (citing Ylst v. Nunnemaker, 501 U.S. 797, 803, 111 S.Ct. 2590 (1991)). Similarly, when a state court decision on a petitioner's claims rejects some claims but does not expressly address a federal claim, a federal habeas court must presume, subject to rebuttal, that the federal claim was adjudicated on the merits. Johnson v. Williams, ___ U.S. ___, ___, 133 S.Ct. 1088, 1091 (2013).
When it is clear, however, that a state court has not reached the merits of a petitioner's claim, the deferential standard set forth in 28 U.S.C. § 2254(d) does not apply and a federal habeas court must review the claim de novo. Stanley, 633 F.3d at 860.
The state courts need not have cited to federal authority, or even have indicated awareness of federal authority in arriving at their decision. Early v. Packer, 537 U.S. 3, 8, 123 S.Ct. 362, 365 (2002). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under § 2254(d). Stanley, 633 F.3d at 860; Himes v. Thompson, 336 F.3d 848, 853 (9th Cir. 2003). "Independent review of the record is not de novo review of the constitutional issue, but rather, the only method by which we can determine whether a silent state court decision is objectively unreasonable." Himes, 336 F.3d at 853. Where no reasoned decision is available, the habeas petitioner still has the burden of "showing there was no reasonable basis for the state court to deny relief." Harrington, 562 U.S. at 98. A summary denial is presumed to be a denial on the merits of the petitioner's claims. Stancle v. Clay, 692 F.3d 948, 957 & n. 3 (9th Cir. 2012). While the federal court cannot analyze just what the state court did when it issued a summary denial, the federal court must review the state court record to determine whether there was any "reasonable basis for the state court to deny relief." Harrington, 562 U.S. at 98. This court "must determine what arguments or theories...could have supported, the state court's decision; and then it must ask whether it is possible fairminded jurists could disagree that those arguments or theories are inconsistent with the holding in a prior decision of [the Supreme] Court." Id. at 786. "Evaluating whether a rule application was unreasonable requires considering the rule's specificity. The more general the rule, the more leeway courts have in reaching outcomes in case-by-case determinations.'" Id. Emphasizing the stringency of this standard, which "stops short of imposing a complete bar of federal court relitigation of claims already rejected in state court proceedings[,]" the Supreme Court has cautioned that "even a strong case for relief does not mean the state court's contrary conclusion was unreasonable." Id. The petitioner bears "the burden to demonstrate that 'there was no reasonable basis for the state court to deny relief.'" Walker v. Mattel, 709 F.3d 925, 939 (9th Cir. 2013) (quoting Harrington, 562 U.S. at 98).
People v. McGary, 2013 WL 6713222, at *13.