Opinion
No. C 00-2134 SI(pr)
March 22, 2002
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
INTRODUCTION
This matter is now before the court for consideration of the merits of Marcus Harrison's pro se petition for writ of habeas corpus concerning his attempted murder conviction in the Alameda County Superior Court. For the reasons discussed below, the petition will be denied.
BACKGROUND
Harrison was convicted in the Alameda County Superior Court of premeditated and deliberate attempted murder and was found to have used a deadly weapon, inflicted great bodily injury and suffered prior convictions. He was sentenced to eleven years to life in prison. Harrison appealed his conviction. The California Court of Appeal affirmed his conviction and the California Supreme Court denied his petition for review.
The crime was described in the California Court of Appeal's opinion, which is quoted at length here because the circumstances of the crime are relevant to several of the claims raised in Harrison's petition:
The victim Judith Namoki (Namoki), a mother of four children, previously had a romantic relationship with appellant, who had lived at her apartment. After the relationship ended, he moved out of the apartment but sometimes returned to babysit the victim's children. On such occasions, appellant would occasionally sleep over.
On November 29, 1995 appellant battered Namoki during an argument. He was arrested and jailed for two weeks.
In the afternoon of December 29, 1995, Namoki asked appellant to come to the apartment and babysit the children briefly while she returned a book to a friend. Appellant did so. The victim went out to a bar, drank alcohol, used some crack cocaine, and did not return that evening at all, despite appellant's urging that she should return home when she called him. Appellant became so angered by Namoki's refusal to return that he cut up or ripped apart all of the victim's clothes and shoes.
Upon returning to the apartment the next morning, Namoki fell asleep on the floor. A few hours later, appellant awakened the victim, took her to the bedroom and showed her that he had cut up all of her clothing. Predictably, Namoki became angry and an argument ensued. She ordered appellant to get out of the apartment, but he refused to leave, claiming the victim owed him $600 because a friend of hers had damaged a car they had owned together. The lengthy argument ended, at least for awhile, when the victim's young children came into the room and said they were hungry.
Later that morning, two friends of appellant's named "Booby" and Edward arrived at the victim's home. The adults started to lay Monopoly and drink beer; the victim's older son Anthony, who was eight, also joined in the game. Throughout the game, the two continued their argument over the wrecked car. After Namoki threw a cup of coffee at appellant, discussion centered upon requesting appellant's mother (Mrs. Harrison) to bring over the victim's monthly Aid to Families with Dependent Children and Supplemental Security Income (SSI) checks, which had been mailed to the home of Mrs. Harrison. The victim then telephoned Mrs. Harrison who agreed to bring the two checks to the victim's apartment. However, by the time Mrs. Harrison arrived it was too late in the day to cash the checks. This further angered appellant. He continued to insist Namoki owed him $600, a fact that was rented by his mother.
While Mrs. Harrison, Booby and Edward attempted to keep them apart, appellant and the victim continued to yell at one another. During this exchange, Namoki told appellant that she was not going to give him anything. Mrs. Hamson tried to convince her son to leave the apartment, but he refused, and she left.
Namoki noticed that the children were on the porch or patio of her apartment, crying. While she was on the porch hugging and comforting them, appellant went into the kitchen and selected a small sharp knife from a drawer. The victim's eight-year-old son overheard appellant then state, "It's going down." As Namoki embraced her children with her back turned to appellant, he stabbed her several times in her head and torso, making grunting sounds with each blow.
As Namoki collapsed she heard appellant's friend Edward tell him, "Stop, dude. Come on." Appellant stopped the attack and returned to the living room with Edward. Believing appellant had completed the attack, the victim lay bleeding on the porch. However, appellant returned to resume the attack, stabbing the victim again.
A neighbor, Wanice Douglas (Mrs. Douglas), witnessed both attacks. During the initial attack, she saw one of appellant s friends come onto the porch and pull him from Namoki. The two men went toward the kitchen where appellant was seen pulling the telephone from the wall. Mrs. Douglas called 911. About a minute and a half later, she noticed appellant return and continue to stab the victim in the head. Mrs. Douglas screamed. Appellantlookedup and saw the witness, and then stopped his attack. Appellant's friends helped himl eave the apartment with his personal belongings.
Because appellant had disabled the phone in the apartment, the victim's son Anthony went to a neighbor's apartment to also call 911. An ambulance took the victim to the hospital. Her injuries were life threatening. Namoki had been stabbed at least seven times, in the head, neck and shoulders, and also had other minor wounds or scratches . . . .
The police were unable to locate appellant. However, while Namoki was hospitalized, appellant used an assumed name to gain entry into her room where he apologized for stabbing her. Appellant was a fugitive for several days, until a neighbor saw him near the victim s apartment and called the authonties.
At trial, appellant testified in his own defense. He admitted assaulting Namoki in November 1995 and the most recent attack, but claimed the latter had occurred while he was suffering from a brief mental illness, as a result of which he could not remember any details of the stabbing after he obtained the knife from the kitchen. Although appellant was aware something had taken place with Namoki, because he was "in shock," he did not know what. Appellant stated he had intended to surrender to the police following the attack, but claimed he did not do so because he did not know where a police station was located. He acknowledged suffering two prior felony convictions.
A defense expert witness, Dr. James Missett, opined that appellant had suffered a transitory mental illness about six months before the most recent attack, and that when appellant stabbed the victim he had been experiencing a brief "dissociative episode" which lasted only as long as his attack on Namoki.
Appellant's relatives also confirmed that before the attacks, around April of 1995, he had been acting strangely. He had locked himself in the bathroom, repeated words to himself, stood outside naked in the rain, and posted unintelligible messages on door, in what he said was a foreign language. This unusual behavior had subsided by the end of May, however, and appellant did not appear irrational months later in December, just before the attacks occurred. By its finding that appellant was guilty of the premeditated and deliberate attempted murder of Namoki, the jury rejected this defense.
Resp. Exh. C, California Court of Appeal opinion (hereinafter (Cal.Ct.App. opinion), pp. 2-4.
Harrison filed his federal petition for writ of habeas corpus after his unsuccessful state court appeal. His habeas petition raises three claims, each of which will be addressed in this order. First, Harrison contends that his right to due process was violated because there was insufficient evidence to support the jury's finding that the attempted murder was premeditated and deliberate. Second, he claims that his right to due process was violated by the prosecutor's misconduct. Finally, he contends that the prosecutor used peremptory challenges to exclude eight prospective jurors based on their race, in violation of the Equal Protection Clause.
DISCUSSION
A. Standard of Review
This court may entertain a petition for writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254(a). The petition may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254 (d); see Williams (Terry) v. Taylor, 529 U.S. 362, 120 S.Ct. 1495 (2000).
B. Exhaustion
Prisoners in state custody who wish to challenge collaterally in federal habeas proceedings either the fact or length of their confinement are required first to exhaust state judicial remedies, either on direct appeal or through collateral proceedings, by presenting the highest state court available with a fair opportunity to rule on the merits of each and every claim they seek to raise in federal court. See 28 U.S.C. § 2254(b),(c). The parties do not dispute that state court remedies were exhausted for the claims in the petition.
C. Claims 1. Sufficiency of The Evidence
Harrison claims that the evidence of premeditation and deliberation was insufficient to support the sentence enhancement he received under California Penal Code § 664(a), which provides for the increased punishment of life imprisonment with the possibility of parole for attempted murder that is willful, deliberate and premeditated.
The Due Process Clause "protects the accused against conviction except upon proof beyond a reasonable doubt of every fact necessary to constitute the crime with which he is charged." In re Winship, 397 U.S. 358,364 (1970). A federal court reviewing collaterally a state court conviction does not determine whether it is satisfied that the evidence established guilt beyond a reasonable doubt, but rather determines whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" Jackson v. Virginia, 443 U.S. 307, 319 (1979); see Payne v. Borg, 982 F.2d 335,338 (9th Cir. 1992). Only if no rational trier of fact could have found proof of guilt beyond a reasonable doubt may the writ be granted. See Jackson, 443 U.S. at 324; Payne, 982 F.2d at 338. The "prosecution need not affirmatively "rule out every hypothesis except that of guilt,'" and the reviewing federal court "`faced with a record of historical facts that supports conflicting inferences must presume — even if it does not affirmatively appear in the record — that the trier of fact resolved any such conflicts in favor of the prosecution, and must defer to that resolution.'" Wright v. West, 505 U.S. 277, 296-97 (1992) (quoting Jackson, 443 U.S. at 326).
The state appellate court rejected Harrison's insufficient evidence claim. The court observed that the evidence of premeditation and deliberation "was not overwhelming" but was sufficient to support the jury's findings. Cal. Ct. App. Opinion, p. 15. Like the state appellate court, this court finds that the evidence was far from overwhelming but was sufficient evidence to support the verdict applying the appropriately deferential standard of review.
Under California law, a court reviewing for sufficiency of the evidence of deliberation and premeditation generally examines evidence of planning, motive, and method of killing (or attempted killing) to determine whether premeditation and deliberation is shown. See Cal. Ct. App. opinion, p. 15, citing People v. Anderson, 70 Cal.2d 15 (Cal. 1968). Anderson identified these three categories of evidence to provide an analytic framework for review rather than to redefine first degree murder or provide an exhaustive list of types of evidence that could be considered. See People v. Anderson, 70 Cal.4th 1117, 1125 (Cal. 1992). Turning to Harrison's case, one sees that there is evidence in each of the three categories (i.e., planning, motive, and method of killing) which cumulatively is sufficient to support a finding of premeditation and deliberation.
Even though the reviewing court focuses on planning, motive and method of the attempted killing, the pattern jury instructions do not frame the analysis that way and Harrison's jury was not instructed to consider those factors. Harrison's jury was given the CALJIC 8.67 pattern jury instruction:
"`Willful' means intentional. `Deliberate' means formed or arrived at or determined upon as a result of careful thought and weighing of considerations for and against the proposed course of action. `Premeditated' means considered beforehand. ¶ if you find that the attempted murder was preceded and accompanied by a clear, deliberate intent to kill, which was the result of deliberation and premeditation, so that it must have been formed upon pre-existing reflection and not under a sudden heat of passion or other condition precluding the idea of deliberation, it is an attempt to commit willful, deliberate, and premeditated murder. ¶ The law does not undertake to measure in units of time the length of the period during which the thought must be pondered before it can ripen into an intent to kill which is truly deliberate and premeditated. The time will vary with different individuals and under varying circumstances. ¶ The true test is not the duration of time, but rather the extent of the reflection. A cold, calculated judgment and decision may be arrived at in a short period of time, but a mere unconsidered and rash impulse, even though it includes an intent to kill, is not deliberation and premeditation. ¶ To constitute willful, deliberate, and premeditated attempted murder, the would-be slayer must weigh and consider the question of killing and the reasons for and against such a choice and, having in mind the consequences, decides to kill and makes a direct but ineffectual act to kill another human being."
Cal. Ct. App. opinion, p. 14.
Planning could be inferred from these facts: Harrison went to the kitchen and chose a knife from a closed kitchen drawer before going out to the porch to stab Namoki, who was then no longer arguing with Harrison but was instead comforting her children; Harrison stated "It's going down" on his way to stab Namoki; and, after his friend urged him to stop the attack, Harrison went inside the home but returned to the porch to stab Namoki again after a brief intermission. Even though they occurred over a relatively short period of time, these facts do indicate planning. See People v. sanchez, 12 Cal.4th 1,34 (Cal. 1995); see, e.g., Peaple v. Wharton, 53 Cal.3d 522,547 (Cal. 1991) (scenario that defendant quarreled with the victim, became angry, went to the garage to obtain the hammer with the intent to kill, came back and struck the victim as she slept would constitute planning activity); Perez, 2 Cal. 4th at 1127-28 (stabbing victim with a different knife obtained after first knife broke indicated some period of time lapsed between first and second set of stabbings; in conjunction with the manner of killing, it "could easily have led the jury to infer premeditation and deliberation").
The motive, which the state appellate court found did "not appear to be a dominant consideration," apparently was that Harrison was fed up with Namoki's perceived irresponsible behavior and a series of confrontations that had occurred recently, with the final provoking incident being Namoki's statement that she would not pay Harrison the money he demanded. See Cal. Ct. App. opinion, p. 16.
The manner of the attack supported the jury's findings of premeditation and deliberation; indeed, the state appellate court found it to be the "most supportive of the jury's findings." Cal. Ct. App. opinion, p. 16. Premeditation and deliberation could be inferred from the deep stab wounds to Namoki's head, neck and shoulders that indicated a calculated attempt to kill her and — most importantly — from the fact that Harrison returned for a second round of stabbing Namoki after being pulled away from her. See e.g., People v. Hart, 20 Cal.4th 546,609 (Cal. 1999) (nature and severity of wounds, along with other evidence, may support a finding of premeditation and deliberation).
Harrison's arguments about what the evidence could show and theories about interpretations to which the evidence was equally susceptible misunderstand the function of a federal habeas court considering a sufficiency of the evidence claim. The habeas court does not weigh the evidence anew and decide whether it is satisfied that the evidence established guilt beyond a reasonable doubt. If the evidence would support conflicting inferences, the habeas court presumes that the trier of fact resolved any such conflicts in favor of the prosecution and defers to that resolution. See Payne, 982 F.2d at 338. Under that standard, the evidence was sufficient to support the verdict.
This court does not agree with all of the state court of appeal's reasoning and finds some of the evidence not to support the inferences drawn. For example, inferring planning from the fact that Harrison did not stab Namoki until his mother left is too great a stretch for this court to make, in light of the fact that two other witnesses remained. Although the prosecutor argues that these two witnesses were friends of Harrison, they did not have any greater or less bias toward him than the mother who left shortly before the attack. In short, the mother's depaaure was not an event from which one could infer a plan to wait until her departure before attempting to kill. Likewise, inferring from Harrison's retrieval of his clothes after the attack that the manner of the attempted killing indicated premeditation and deliberation is too great a stretch for this court. However, this court's disagreement with some of the state court of appeal's reasoning does not necessitate habeas relief. It is "whether the decision the court reached was contrary to controlling federal law" rather than "the intricacies of the state court's analysis" that is the concern of the federal habeas court. See Hernandez v. Small, No. 00-56286, slip op. 3795,3809 (9th Cir. Feb. 6, 2002).
Finally, the state appellate court applied the right federal authority, as evidenced by that court's citation to Perez, 2 Cal. 4th at 1124, which at the place cited refers to People v. Johnson, 26 Cal.3d 557,576 (Cal. 1980), which expressly followed the Jackson v. Virginia standard, as well as to Jackson v. Virginia itself. See Cal. Ct. App. Opinion, p. 15. The Califonia Court of Appeal's opinion was not contrary to or an unreasonable application of clearly established federal law. Harrison is not entitled to the writ on this claim.
2. Prosecutorial Misconduct Claims
The appropriate standard of review for a prosecutorial misconduct claim in a federal habeas corpus action is the narrow one of due process and not the broad exercise of supervisory power. See Darden v. Wainwright, 477 U.S. 168,181 (1986). A defendant's due process rights are violated when a prosecutor's misconduct renders a trial fundamentally unfair. See id; Smith v. Phillips, 455 U.S. 209, 219 (1982) ("the touchstone of due process analysis in cases of alleged prosecutorial misconduct is the fairness of the trial, not the culpability of the prosecutor"). A key factor in determining the prejudicial effects of misconduct is whether the trial court issued a curative instruction. When a curative instruction is issued, a court presumes that the jury has disregarded inadmissible evidence and that no due process violation occurred. See Greer v. Miller, 483 U.S. 756,766 n. 8 (1987); Darden, 477 U.S. at 182 (the Court condemned egregious, inflammatory comments by the prosecutor but held that the trial was fair since curative actions were taken by the trial judge). This presumption may be overcome if there is an "overwhelming probability" that the jury would be unable to disregard evidence and a strong likelihood that the effect of the misconduct would be "devastating" to the defendant. See Greer, 483 U.S. at 766 n. 8.
a. Gang Oath Evidence
Harrison's mother testified that Harrison had been talking to himself, to support the defense that Harrison was mentally ill. On cross-examination, the prosecutor asked her, "Did you ever hear him say this: If I should ever break my stride and falter at my comrade's side, kill me. If I ever were to prove untrue —" RT 1336. Defense counsel objected and asked for an offer of proof, commenting "I have no idea what this is." RT 1336. (He later learned that the quoted passage was an oath of the Black Guerilla Family ("BGF") prison gang.) After a sidebar conference, the prosecutor resumed with another question, leaving her earlier question unanswered. The next day, with the jurors absent, the court held a conference about the prosecutor's unanswered question. See RT 1352-1374. Defense counsel complained that the inquiry violated the court's admonition earlier that counsel should advise the court and opposing counsel before raising any controversial issue in front of the jury. RT 1354. Defense counsel did not know how the quote would impact the jury, or whether any of the jurors would know what it meant. He conceded that "the odds are against the fact that any juror would know that this is a BGF oath," but if any juror did recognize the oath, it would be devastating for the defense. RT 1355-1356. The prosecutor defended her actions by saying that, as a BGF member, Harrison had to commit to memory the BGF oath and bylaws; his speaking aloud to himself may have evidenced a memorization technique rather than a mental illness. The court agreed with the prosecutor's assessment that she had used "bad judgment" in not advising the court before she asked the question of Mrs. Harrison. RT 1365. The court noted that there was no reference to the BGF or to the source of the passage. RT 1366. The court denied the motion for a mistrial, instructed the jury to disregard the question and ordered the prosecutor not to refer to any prison gang directly or indirectly. RT 1367-1368; 1375. The California Court of Appeal found no prejudice from the "ill advised" question given the trial court's curative instruction. Cal. Ct. App. opinion, p. 21.
The prosecutor's actions did not rise to the level of constitutionally offensive prosecutorial misconduct. It is extremely doubtful that any juror recognized the quoted material as a prison gang oath — defense counsel conceded as much. In fact, defense counsel apparently did not even know what the quoted material was until the prosecutor explained it in a sidebar conference. Although having the jury learn that Harrison was in the prison gang would have been undesirable, there is no evidence that any juror learned that fact based on the single question asked. This court relies on the curative jury instruction given to presume that the jury disregarded any inadmissible evidence. Lee Greer, 483 U.S. at 766 n. 8. The combination of the obscurity of the reference and the existence of a curative instruction lead comfortably to the conclusion that the utterance of the unanswered question did not render Harrison's trial fundamentally unfair.
b. Cross-Examination of Dr. Missett Regarding Predicting Dangerousness
Harrison called Dr. James Missett, a psychiatrist, to testify about his mental state. Dr. Missett opined that Harrison was in a dissociative state which disrupted his consciousness when he stabbed Namoki. On cross-examination, the prosecutor asked Dr. Missett if he could predict whether Harrison would respond in the same way in the future, i.e., whether he would dissociate and begin stabbing someone if he faced circumstances like those occurring the day he attacked Namoki. Dr. Missett testified that Harrison could react the same way if put in the same situation, but also indicated that his opinion depended on whether his understanding of Harrison's vulnerabilities was correct; if Dr. Missett's evaluation of this vulnerability was not correct, the chances were less that Harrison would react the same way. See RT 1766. The prosecutor then asked "you can't really tell, though, can you?" RT 1766. After a sidebar conference, the prosecutor asked "[a]s you said yesterday, there's no way to know for sure what he was thinking at the time he stabbed Ms. Namoki. Is it also true there's no way to know what he would do if confronted with the same circumstances in the future?" RT 1767-1768. The court sustained the defendant's objection and the question remained unanswered. The prosecutor then asked "Is it true that there's no way to know for sure what he was thinking at the time he stabbed Ms. Namoki?" and Dr. Missett responded, "Yes." RT 1768. Out of the presence of the jury, the prosecutor explained that her inquiry merely sought to demonstrate that Dr. Missett could not make any scientifically valid statements about Harrison's mental state in the past. See RT 1770-1771. The prosecutor said she wanted to show that the expert could not predict Harrison's behavior in the past and could not predict behavior in the future and "that this whole stuff is bogus regarding dissociative disorders." RT 1771. She explained "[t]he thing I was trying to emphasize is there's just no way for him to know what somebody's mental state is "RT 1771. The court denied the defense motion for a mistrial but did strike the questions and answers in this area and instructed the jury to disregard them. RT 1773-1774.
The prosecutor's questions were very focused and closely tied to the expert's testimony on direct examination. The prosecutor did not simply ask whether Harrison would be violent in the future, thus factually distinguishing this case from People v. Murtishaw, 29 Cal.3d 733, 767 (Cal. 1981), in which the California Supreme Court noted that expert predictions of future violence were unreliable, irrelevant and prejudicial. In Harrison's case, Dr. Missett had predicted what occurred in Harrison's mind on the particular day when he stabbed Namoki and the prosecutor was testing whether the same result would occur if the same situation presented itself again. She was trying to poke holes in the defense by showing the expert's inability to reliably predict what was going on in Harrison's mind and how he would react on any particular day. Finally, even if the prosecutor's questions were improper, the court's instruction to the jury to disregard the line of testimony cured any problem. See Greer, 483 U.S. at 766 n. 8. The line of inquiry certainly was not one that was so inflammatory that the curative instruction was futile.
c. Closing Argument About Defense Expert's Compensation
Harrison next protests that the prosecutor improperly demeaned Dr. Missett, the defense expert, during closing argument, when she commented on the high cost of hiring him and that he had given a discounted rate in this case. Specifically, the prosecutor argued: "The defendant has come up with his own version of unconsciousness, and it's called: I don't remember. ¶ And the expensive doctor he hired who testified said: I don't remember is called a dissociative episode. ¶ It's a very convement excuse. Thank goodness that Mr. Sirbu was so concerned about spending our county's money that he got a discount on that opinion." RT 1910. The defense attorney objected and the court reminded the jury that closing argument was not evidence in the case. RT 1910. The prosecutor also stated that Dr. Missett said the defense attorney asked him to save money so he "gave us the discount opinion of $5,000" rather than charging his normal fee of $12,000-$15,000. RT 1910.
Had the prosecutor simply commented that the defense expert was paid $5,000 for his opinion, the comment would have permissible under California Evidence Code § 722, which permits jury consideration of the compensation of an expert as a source of bias, interest or motive. The prosecutor went a bit further here, and reminded the jury that taxpayer dollars had been spent to obtain that opinion. In light of the judge's prompt reminder to the jury that closing arguments were not evidence, the prosecutor's comment did not render the trial fundamentally unfair. See Greer, 483 U.S. at 766 n. 8.
d. Closing Argument Regarding Expert's Failure to Opine on Unconsciousness
During his testimony, Dr. Missett stated that Harrison was in a dissociative state when he stabbed Namoki, but Dr. Missett did not say that Harrison was unconscious. The prosecutor pointed this out in her closing argument. The problem with that was that Dr. Missett was precluded under California law from giving such an opinion, as it would have been an opinion on the ultimate issue of whether Harrison had the requisite mental state. See Cal. Ct. App. opinion, p. 24; Cal. Penal Code § 29. The California Court of Appeal decided under state law that there was no prejudice from the improper remark even though no curative instruction was given: "Although some aspects of this case may have presented close questions for the jury (such as the issue of premeditation or deliberation), the issue of a defense based on unconsciousness was not one of them. There was no substantial evidence showing that appellant was in fact unconscious; the evidence instead revealed he had an extensive argument with the victim over money, then selected a knife from the kitchen, stabbed her, and fled." Cal. Ct. App. opinion, p. 25. Similarly, this court does not see the improper remark as so infecting the trial as to render it fundamentally unfair.
None of the instances of alleged prosecutorial misconduct individually rendered the trial fundamentally unfair. Even considering the cumulative effect of the prosecutor's comments and questions, they did not render the trial fundamentally unfair. Harrison is not entitled to the writ on his claim of prosecutorial misconduct.
3. Batson Claim
The Equal Protection Clause of the Fourteenth Amendment to the U.S. Constitution forbids peremptorily challenging potential jurors solely on account of their race. See Batson v. Kentucky, 476 U.S. 79,89 (1986).Batson permits prompt rulings on objections to peremptory challenges under a three-step process. First, the defendant must make a prima facie showing that the prosecutor has exercised peremptory challenges on the basis of race. Lee Bzson, 476 U.S. at 96-97. Second, if the requisite showing has been made, the burden shifts to the prosecutor to articulate a race-neutral explanation for striking the jurors in question. Id. at 97; see Wade v. Terhune, 202 F.3d 1190, 1195 (9th Cir. 2000). Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. See Id. In evaluating the race-neutral explanation, the court must keep in mind that proof of discriminatory intent or purpose is required to show a violation of the Equal Protection Clause. See Hernandez v. New York, 500 U.S. 352, 355-62 (1991) (no discriminatory intent where Latino jurors dismissed because of possible difficulty in accepting translator's rendition of Spanish language testimony); see also Purkett v. Elem, 514 U.S. 765, 768 (1995) (ultimate burden of persuasion regarding racial motivation rests with, and never shifts from, the opponent of the strike).
This court will not dwell on the first step of the Batson analysis because the trial court found that a prima facie showing had been made and proceeded to the second and third step at Harrison's trial. "Once a prosecutor has offered a race-neutral explanation for the peremptory challenges and the trial court has ruled on the ultimate question of intentional discrimination, the preliminary issue of whether the defendant has made a prima facie showing becomes moot." Hernandez, 500 U.S. at 359.
The fact that California used an incorrect standard for determining whether the first step of the Batson analysis had been satisfied, see Wade, 202 F.3d at 1197, does not matter in Harrison's case because the state court determined — even using the more stringent state standard that Harrison had shown a prima facie case and satisfied the first step of the Batson analysis, thus requiring the court to move on to the second and third steps of the Batson analysis. Had the state court decided that Harrison did not satisfy the first ste p of the Batson analysis, this court would not have deferred to that findin under 2 U.S.C. § 2254(d), and instead would have done de novo review. See id at 1195-96. Because the analysis proceeded past the infirm first ste p and on to the second and third step — as to which California's courts' interpretation is in step with federal law — the court can defer to the state court findings under 28 U.S.C. § 2254(d).
The state court found that discriminatory intent had not been shown in the striking of the jurors at Harrison's trial. These findings of the state court on the issue of discriminatory intent are findings of fact entitled to the presumption of correctness in federal habeas review. LeePurkett, 514 U.S. at 769. Although this court would not be bound by any state court fact finding that was unsupported in the record or refuted by it, there are no such unsupported findings here. See Johnson v.Nasqnez, 3 F.3d 1327, 1331 (9th Cir. 1993) (reversing and remanding denial of writ because there was insufficient support in record that black juror was removed for other than racial reasons); see. e.g., McClain v. Prunty, 217 F.3d 1209, 1221-23 (9th Cir. 2000) (trial court's decision that defendant did not meet his burden of proving intentional discrimination was based on an unreasonable determination of the facts in light of evidence at trial that showed prosecutor's stated reasons for striking jurors were factually wrong, pretextual or nonsensical).
The prosecutor peremptorily challenged eight African American prospective jurors. Although the sheer number excluded catches the eye, the Bataon test rightly focuses on the reasons for the challenges rather than on the number of those challenges. The reasons for the peremptory challenges as to which the defense claimed there was an improper motive must be examined on a juror-by-juror basis. This court now considers the several jurors excused.
a. Lucille P. and Joseph H.
Lucille P. had a prior conviction for drug possession. Joseph H. had been arrested numerous times for alcohol-related offenses and had once "blacked out" when arrested, which was similar to Harrison's dissociative state defense in this case. On appeal, Harrison concurred that "the record itself contained a specific reason to excuse these jurors." Resp. Exh. B (Appellant's Opening Brief), p. 31. The state court of appeal determined that Harrison conceded that the dismissal of prospective jurors Lucille P. and Joseph H. was proper and dropped his objection to their removal from thejury. See Cal. Ct. App. opinion, p. 7 n. 1. There was no Equal Protection violation in the rejection of these two prospective jurors.
b. Juror Rochelle C.
The prosecutor explained that she exercised a peremptory challenge to juror Rochelle C. for several reasons: Rochelle C. was "very young" and had limited life experience. She had obtained a degree in political science at the University of California — Berkeley and was a first year law school student. RT AUG 564. Her law school experience caused the prosecutor grave concern because law students are "trained to be extremely skeptical, critical thinkers," and first year law students in particular are trained to be "extremely skeptical" of state actions and prosecutors. RT AUG 564. Juror Rochelle C. also was working as a volunteer at the East Palo Alto Community Law Project, an organization whose liberal bent concerned the prosecutor. The prosecutor explained that, in her experience, persons who worked with the East Palo Alto Community Law Project were interested in protecting the rights of socially and economically disadvantaged people and the organization "is a liberal minded organization, and the people who run it have appeared to me in the past to be true believers. They believe that the state is an oppressor and that people who find themselves seeking their services . . . had generally been opposed in some fashion by law enforcement agencies or by the government in general." RT AUG 563. The prosecutor's reasons are, on their face, race-neutral.
Harrison has not met his burden of proving that the prosecutor engaged in purposeful discrimination in excusing juror Rochelle C. As the California Court of Appeal explained, Rochelle C.'s responses suggested "to the prosecutor that this juror had a skeptical, critical or at least anti-establishirient outlook" that was "an appropriate and nondiscriminatory consideration for the prosecutor to utilize in exercising the peremptory challenge." Cal. Ct. App. opinion, p. 11. The prosecutor had legitimate concerns about this juror. The California Court of Appeal's rejection of the Equal Protection claim as to this juror were not contrary to or an unreasonable application of clearly established federal law.
c. Lorainne A.
The prosecutor explained that she did not like prospective juror Lorainne A's attitude. She was unresponsive to the court's attempts at humor, "was openly hostile toward" the prosecutor and was reluctant to make eye contact with the prosecutor. RT AUG 575. The prosecutor felt that she and Lorainne A. could not relate to each other. Lorainne A. also was chewing gum while being questioned. The prosecutor also disliked several other features in this prospective juror: she wore "weird clothes" and oversized jewelry; she was overweight; she appeared to be "out of the main stream of thinking;" she did not appear to be very intelligent; and she had daughters who were unemployed like Harrison. RT AUG 576. The prosecutor thought that for all those reasons combined, Lorainne A. would not be able to work well with other jurors.
The California Court of Appeal found nothing wrong with this peremptory challenge. "The trial court accepted these reasons as legitimate, as do we. A juror who appears unusually dull or nonresponsive, hostile, nonconforming to standards of appropriate dress and appearance and out of the main stream of community thinking may well have difficulty deliberating with other jurors, and may properly be excused for these race-neutral reasons." Cal. Ct. App. opinion, p. 8. The court rejected Harrison's suggestion that reliance on the prospective juror's attire suggested racially-motivated thinking. The prosecutor had described the clothes as "weird" and stated that the woman's top "almost looked like an African print but woven kind of funky top that went almost to her knees like her mid thighs." Cal. Ct. App. opinion, p. 7, n. 2. The court saw "nothing about the prosecutor's reliance on this juror's unusual choice of clothing or her strange appearance in court which would undermine the trial court's finding that the peremptory challenge was proper. 11. The appellate court also explained that the woman's work as a housekeeper in a hospital was not necessarily a disqualifying factor, but "this circumstance nevertheless could form a part of the constellation of other legitimate factors relied on by the prosecutor, i.e., lack of responsiveness, apparent low intelligence, absence of a normal relationship to the court and the other jurors, perceived hostility, weird appearance and bizarre clothing, chewing of gum throughout the proceedings, and the similarity of her unemployed adult children to the unemployed appellant in this case." Cal. Ct. App. opinion, p. 9.
Harrison has not met his burden of proving that the prosecutor engaged in purposeful discrimination in excusing juror Lorainne A. Although several of the factors relied on by the prosecutor would not have been very convincing if they were the only factors, the combination of factors painted a picture of an undesirable and hostile juror from the prosecutor's perspective. The prosecutor had legitimate concerns about this juror. The California Court of Appeal's rejection of the Equal Protection claim as to this juror was not contrary to or an unreasonable application of clearly established federal law. The prosecutor explained that she exercised a peremptory challenge against Tammy A. generally because she had extremely limited life experience. Tammy A. was a single woman with no children and lived with her mother, and thus might not be understanding of the victim who had four children and had been out in the world. Tammy A. also had just bought a home in Arizona and was soon to move there. And Tammy A. impressed the prosecutor as someone "who was simply too young to serve on this case." RT AUG 573. She also had never served on a criminal jury. The prosecutor also stated that she had exercised a peremptory challenge to Tammy A. who, like another flight attendant who was peremptorily challenged by the prosecution, was "very friendly to the point of being dingy or a little flaky in my estimation." RT AUG 574. Also, Tammy A. seemed too young and inexperienced to appreciate the complexity of the legal issues and the "complexity of life styles that we will be seeing regarding the facts and circumstances of this case." RT AUG 574.
The California Court of Appeal determined that the prosecutor's reasons were adequate: "A juror who appears very young and inexperienced, has insubstantial ties to the community and appears to have a `flaky' mental outlook may be excused for these race-neutral reasons." Cal. Ct. App. opinion, p. 10. The court refused to engage in a comparative analysis, i.e., comparing this stricken juror with other jurors who remained on the panel despite having some of the same characteristics. The appellate court explained that comparative analysis was improper under state law and did not apply under the circumstances in this case because Harrison was picking and choosing various traits, rather than comparing jurors with all of the same traits — he was, in effect, comparing apples and oranges. See Cal. Ct. App. opinion, p. 10.
Federal courts consider comparative analysis a useful tool for analyzing peremptory strikes under federal law. See Turner v. Marshall, 121 F.3d 1248,1251-52 (9th Cir. 1997). It is not mandatory, however, and the failure of a state court to use comparative analysis is not an unreasonable application of or contrary to clearly established federal law under 28 U.S.C. § 2254(d). Cf. Burks v.Borg, 27 F.3d 1424,1427 (9th Cir. 1994) ("The U.S. Supreme Court has not yet ruled on the role of comparative analysis on appellate review, so no one is quite sure whether our circuit or the California Supreme Court is right.") It also is not particularly useful when the jurors are not comparable, as was the case here with each of the several jurors as to whom Harrison sought to do a comparative analysis. When a prosecutor provides a specific reason for a peremptory challenge and there is another juror on the panel who has that same trait, comparative analysis is helpful, but where, as here, the prosecutor gives several reasons which in combination provide the bases for the strike, comparative analysis will not succeed for a defendant unless the defense is able to show that jurors remained who at the very least, in the aggregate, had all those traits. Because Harrison could not show that non-African-American jurors with all the traits possessed by the challenged juror were kept on the panel, his comparisons are unconvincing. For example, Harrison's efforts to show that other single jurors and other childless jurors remained on the panel does not undermine the prosecutor's assertion that she thought this prospective juror was too "flaky." Harrison has not established an equal protection violation in the exercise of a peremptory challenge to remove Tammy A. from the jury panel.
e. Shedrick W.
The prosecutor explained that she peremptorily challenged prospective juror Shedrick W. because he was "extremely flippant." RT AUG 564. Despite several questions to determine the nature of his job, Shedrick W. was reluctant to provide a more specific explanation of his job than that he was a "troubleshooter." RT AUG 564, 583. The prosecutor also sensed that the juror had an attitude of "I don't want to be here." RT AUG 565. She also sensed that he was insincere when he answered that he would follow the orders of the court. Shedrick W. was chewing gum throughout the questioning and would not make eye contact with the prosecutor. She also was ummpressed by the fact that the juror quickly agreed that he would not hold it against the defendant if the defense attorney was an "idiot;" she sensed a difference between the juror's attitude toward her and his attitude toward defense counsel. RT AUG 565, 583.
The California Court of Appeal found the peremptory challenge to this juror permissible. The court noted that defense counsel agreed that the juror was flippant toward the prosecutor, which might be construed as a waiver of the claim. The court also rejected the challenge on the merits: "We agree with the prosecutor and appellant's trial counsel that the juror's flippancy and perceived lack of candor were legitimate reasons for the prosecutor's action. [Citation.] The trial court and appellant's trial counsel, who observed the voir dire, were in a much better position than we or appellate counsel to judge the juror's demeanor and ultimately the propriety of this challenge." Cal. Ct. App. opinion, p. 12.
Defense counsel's acknowledgments that this juror was flippant toward the prosecutor and that there was a legitimate reason for a peremptory challenge go a long way toward the resolution of this Batson challenge.See RT AUG 595. Although the court does not interpret counsel's comment as an actual waiver of the claim concerning this juror, the comment is extremely persuasive evidence that the juror possessed the race-neutral trait (i.e., flippancy) which made him undesirable to the prosecutor. This particular challenge illustrates why so many of these challenges are best handled by the trial court: the written transcript of the proceedings discloses nothing wrong with the juror's answers, yet all in the courtroom recognized the attitude problem this juror had when he gave those answers. Harrison has not met his burden of showing that prospective juror Shedrick W. was peremptorily challenged with discriminatory intent.
f. Robert B.
The prosecutor peremptorily challenged Robert B. for several reasons: For all three days of voir dire, Robert B. wore the same clothes (i.e., a very bright purple jacket and white shirt). Robert B.'s brother had been murdered by someone who premeditated for several hours before killing him, unlike this case where the time of premeditation was much quicker. Robert B. expressed some concern about his ability to sit on a jury where premeditation was involved. He also had a nephew who had been in jail for 4-5 years. Robert B. was unemployed and collecting SSI, which was similar to Harrison's situation of being unemployed and collecting a government benefit. Robert B. also was not particularly concerned about not being able to look for a job, suggesting that his SSI payments were adequate for him forever. The prosecutor thought Robert B. was "in a liberal lifestyle that was not extremely stable." RT AUG 585. The prosecutor found objectionable that Robert B. lived with a male schoolteacher, who the prosecutor thought would tend to be more liberal-minded, but the record does not indicate that Robert B. disclosed his roommate's occupation. And the prosecutor thought Robert B. was "shifty-eyed" and might have been under the influence of some substance. RT AUG 585.
The California Court of Appeal considered the defense's claim that Robert B was improperly excused to have been waived by trial counsel's agreement that the prosecutor was legitimately concerned with this juror due to his disclosure that he would have trouble deliberating in a case where there was premeditation based on the fact that someone premeditated five hours before killing Robert B.'s brother. Lee Cal. Ct. App. opinion, p. 12; RT AUG 595-596. The appellate court also rejected the claim on the merits, noting that the difference in premeditation times between the juror's brother's death and Harrison's victim's near-death experience gave the prosecutor "good reason to believe this person would not be an ideal juror in this particular case." Cal. Ct. App. opinion, p. 12. The appellate court also found many other adequate race-neutral reasons to peremptorily challenge this juror: he had another relative in jail (although the court and prosecutor apparently misunderstood that this person was in jail for murder); he was "weird," shifty-eyed and wore unusual clothes; he appeared to be under the influence of some substance; he did not seem to be very bright; he was unemployed and collecting SSI with what the prosecutor characterized as a "liberal, unstable lifestyle." Cal. Ct. App. opinion, pp. 12-13. The California Court of Appeal's rejection of the Batson claim for this juror was not contrary to or an unreasonable application of clearly established federal law, even though the appellate court and prosecutor relied on the nonexistent reason that the juror's roommate was in that liberal occupation of school teaching.
g. Wallick D.
The prosecutor's reasons for peremptorily challenging juror Wallick D. were that he had been reading the Bay Guardian newspaper, an anti-establishment and "very liberal newspaper." RT AUG 587. He also wore a large gold earring and wore the same unusual clothing the whole time he was in court. These things, in combination with the other factors indicated to the prosecutor that this was not an ideal prosecution juror. The prosecutor also thought that Wallick D. "did not appear to want to be here at all. In fact, it's clear by his body language that he didn't want to be here." RT AUG 588. The prosecutor had been unable to make eye contact with him and thought that she and the juror would not be able to relate to each other. RT AUG 588. Also, Wallick D.'s cousin had been arrested for armed robbery and had been acquitted; Wallick D. had talked to his cousin about it and, although Wallick D. said this would not affect his ability to be fair, the prosecutor did not think that was a candid answer. The prosecutor thought that Wallick D. might not work well with other jurors, given his large gold earring which indicated to her that he was trying to make a statement about something. RT AUG 590-591.
The California Court of Appeal found that the prosecutor's reasons for exercising a peremptory challenge to juror Wallick D. were "neither implausible nor suggestive of bias." Cal. Ct. App. opinion, p. 13. The prosecutor thought the juror appeared to be a nonconformist who would not favor the prosecution and gave specific reasons for her impression. The reasons she gave were race-neutral. Although some of the individual "reasons" the prosecutor gave would be unconvincing or even frivolous if offered in isolation (e.g., the juror's big earrings), the totality of the circumstances did support her impression that Wallick D. was not an ideal juror. California Court of Appeal's rejection of this claim was not contrary to or an unreasonable application of clearly established federal law.
The court again notes that exercising peremptory challenges against eight African-American prospective jurors gives one cause for concern. Nonetheless, Harrison is not entitled to the writ because he has not shown discriminatory intent in the exclusion of any of those eight jurors.
CONCLUSION
For the foregoing reasons, the petition for writ of habeas corpus is DENIED. The clerk shall close the file.