Opinion
CASE NO. 04cv0608-J (JMA).
January 26, 2006
ORDER: (1) ADOPTING MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION; AND (2) DISMISSING PETITIONER'S PETITION
Before the Court are Magistrate Judge Adler's Report and Recommendation (RR) advising the denial of Petitioner Harvey Barry Jacobs' ("Petitioner") Petition for Writ of Habeas Corpus ("Petition"), and Petitioner's Objections ("Objections"). [Doc. No. 23, 24.] Petitioner, a state prisoner convicted of second degree murder, filed his Petition pursuant to 28 U.S.C. § 2254. Petitioner raised four broad claims in his Petition, all of which were denied by the RR: (1) the prosecutor committed misconduct in violation of the Fifth, Sixth and Fourteenth Amendments; (2) the prosecutor failed to disclose information regarding articles reviewed by an expert witness in violation of the Fifth, Sixth and Fourteenth Amendments and Brady v. Maryland, 373 U.S. 83 (1963); (3) trial counsel was ineffective in violation of the Sixth Amendment; and (4) his right to a fair and impartial jury was denied in violation of the Sixth and Fourteenth Amendments. (Pet'r's Objs. at 1-7.) On September 28, 2005, Petitioner submitted Objections to the RR, disputing several of the Magistrate Judge's conclusions. [Doc. No. 24.] For the reasons set forth below, the Court APPROVES AND ADOPTS the RR in its entirety, and DISMISSES Petitioner's Petition with prejudice.
I. Background
The following statement of facts is taken from the California Court of Appeal opinion, People v. Jacobs, No. D035406, slip op. (Cal.Ct.App. Sept. 4, 2001). This Court gives deference to state court findings of fact and presumes them to be correct: Petitioner may rebut the presumption of correctness, but only by clear and convincing evidence. 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness).
Prosecution Evidence
Jacobs met Nadine Loucks (Nadine) in November 1997 after she responded to an advertisement he had placed in the personals column of the Reader. By the end of the next month, Nadine had moved into Jacobs's house and was living with him. Jacobs and Nadine were married on April 10, 1999.
Two weeks later, at 2:07 a.m. on April 25, 1999, Jacobs telephoned 911 to report he had found Nadine dead on the kitchen floor. Jacobs told the dispatcher he was a doctor [footnote 1: Jacobs graduated from medical school in 1968, has been licensed to practice medicine in Virginia since 1993 and has been a non-practicing physician for the past 22 years.] and had tried unsuccessfully to resuscitate her with CPR after he removed a pastry from her mouth. San Diego Police Officers Charles De la Cruz and Shannah Glazewski responded to the call at 2:22 a.m. Nadine was lying on her back on the kitchen floor, dressed in black panties and a white tank top, which was inside out. She had pastry in her mouth and nose. There were crumbs of food on the floor and some chewed up, watery food near her head, which De la Cruz noted in his report was "maybe some type of vomit." . . .
Jacobs told the officers he and his wife had seen a movie and then gone to Chevy's restaurant where Nadine had a couple of glasses of wine. They arrived home at 11:00 p.m., and, before going to bed, Nadine had two more glasses of wine. Jacobs said he awoke at around 2:00 a.m., Nadine was not in bed and he went downstairs to investigate. Jacobs said he found her face down on the kitchen floor and rolled her over to begin CPR. Jacobs said Nadine vomited when he did chest compressions; he then cleaned out her mouth and resumed CPR but to no avail.
Jacobs told De la Cruz he believed Nadine had choked on a piece of pastry. On a nearby counter were a box of fat-free lemon pastry and a bottle of throat spray. Jacobs told the officers she used throat spray when her throat was irritated. [Footnote 2: Jacobs told the 911 dispatcher and an investigator of the Medical Examiner's Officer [sic] who came to the scene that he had warned Nadine not to use the throat spray because it would numb her throat and could cause her to choke.] Jacobs said Nadine suffered from Wilson's Syndrome, which is a thyroid condition, and she sometimes had trouble breathing when she was stressed. . . .
Glazewski noted early signs of lividity in the lower portion of Nadine's thigh and calf. The officers saw no signs of forced entry and observed no injuries on Nadine. They did not call a homicide team to the house. . . .
The next day when Dr. Christopher Swalwell, a pathologist with the San Diego County Medical Examiner's Office, began to conduct an autopsy of Nadine, the death was considered accidental. Swalwell, however, became suspicious when he noticed a contusion on the back of Nadine's head, multiple bruises, and petechiae (small, dot-like hemorrhages) in the lining of her eyes and on her eyelids. Swalwell associated the presence of petechial hemorrhages with the possibility of strangulation. The pathologist halted the autopsy, contacted the police and resumed when homicide detectives arrived to document the procedure.
Swalwell found about one-third of a cup of pastry in Nadine's mouth. Nadine had hemorrhages in the muscle tissue of her shoulders and her neck, and two fractures of the circoid cartilage, which is part of the airway from the mouth to the lungs. She also had a hemorrhage on the tip of her tongue, and a bruise on the right side of the top of her head. Swalwell testified the head bruises would have been caused by "some kind of blow or impact to the head."
Swalwell concluded Nadine was hit over the head, rendering her unconscious, and then strangled.
Also on April 26, a homicide detective interviewed Jacobs; a videotape of the interview was played for the jury. Jacobs described Nadine as always dieting and said she had trouble with her throat closing and choking. He also said Nadine was an alcoholic. Jacobs told the detective that when he discovered Nadine on the kitchen floor, he could not ventilate her at first because "there was stuff coming [out]." Jacobs put his fingers to the back of her throat, pulled out the pastry and began to ventilate her. He could smell the throat spray. Jacobs said he had warned Nadine not to get the throat spray, which is a topical anesthetic, in the back of her throat because it would numb her throat. They had no disagreements that night.
Nadine's friends and son characterized her as an avid dancer who exercised regularly and ate healthy foods. One close friend, Camile DiGirolamo, described Nadine as "very outgoing, very free-spirited, very joyful, happy person" who shortly before her death changed to being "very tearful, very nervous, very unhappy, and had lost the self-esteem and free spirit that she used to have."
To support its theory that Jacobs killed Nadine because he was angered by her dancing with other men, drinking and going out evenings without him, and by his inability to control her, the prosecution presented the testimony of several witnesses, including friends of Nadine and one of her sons, as motive evidence.
Jacobs told Jonathan Loucks that he had a "big problem" with Nadine's dancing with other men. Loucks also related an incident shortly before the wedding when Jacobs yelled at Nadine because she was not listening to Jacobs as he read aloud a poem he had written; Nadine at the time was playing with her toddler grandson.
La Vonn Hale, a close friend of Nadine's, described an incident a few months before the wedding when Jacobs became irate with Nadine, took her by the arm and ordered her outside after she touched the shoulder of an out-of-town male friend who had come to San Diego to celebrate Nadine's engagement to Jacobs. Hale also testified that during a break-up in Jacobs's and Nadine's relationship, Jacobs had told Hale that he could not handle Nadine dancing with other men. Jacobs also complained to Hale about Nadine's drinking.
Another close friend, Bonnie Burnett, described an incident in January 1999 at La Costa when Jacobs "just blew up" while he and Nadine were dancing and continued to "grind at her" when they were later seated at the table. Burnett heard Jacobs say to Nadine: "`Men think you are a whore.'" . . .
Jacobs also expressed displeasure over Nadine's insistence on going out on Thursday evenings with her girlfriends. On the Thursday before her death, while Nadine was supposed to be attending one of these "girls' night[s] out," Burnett telephoned Jacobs because Nadine had not shown up and she was trying to verify Nadine's cell phone number. Jacobs became "very excited" and said to Burnett: "Don't you think that's pretty sick of her to go off someplace and drink?"Defense Evidence
The defense theory was that Nadine suffered from an eating disorder and died as a result of choking on food bolus after she had binged on the pastry.
During cross-examination of several prosecution witnesses, the defense brought out that Nadine's friends and one of her sons were concerned about her eating habits. Jeremiah Loucks had told a detective he thought his mother might have an eating disorder because everything she ate was fat free and salads. Di Girolamo told a detective that Nadine was overweight when younger, had a problem with diarrhea, was getting thinner, went to the bathroom a lot and drank an herbal tea on a daily basis. [Nadine's friend Desi] Sanchez told a detective he believed Nadine had an eating disorder and her attention to her weight was abnormal; Nadine had confided in Sanchez that when she was younger she used to binge. Gordon White, who had at one time dated Nadine and remained a good friend, told a detective that Nadine had confided in him that at one point in her life she weighed up to 220 pounds and said she would never be overweight again. [Footnote 3: After the defense took prosecution witness Burnett as its own witness, she testified: "I thought she had a bit of an eating disorder, but she never said so herself. We, as her friends, told her, [`]Nadine, you're getting too thin.[`'] We worried about her because she was very particular about what she would eat." Burnett also was concerned about Nadine's use of laxatives, having diarrhea and frequent trips to the restroom.]
Based on his review of interviews with Nadine's friends and relatives concerning her eating habits, Dr. Christopher Fairburn, a psychiatrist and world renown [sic] expert on eating disorders, opined it was very likely that Nadine suffered from bulimia nervosa, which is characterized by frequent secretive eating binges of forbidden food. This was not a medical diagnosis since Fairburn had not interviewed Nadine. . . .
Fairburn said the evidence he reviewed was compatible with Nadine binge eating when she died.
Dr. Michael Strobert, who is also a psychiatrist and expert on eating disorders, testified it was "highly possible" that Nadine was bulimic. . . .
The defense also presented testimony of Gerald Russell, a food chemist, who explained fat-free food products are stickier and gummier and tend to clump together more than the same kinds of products made with fat.
Dr. George Schwartz, a medical doctor specializing in emergency room medicine, opined the likely cause of Nadine's death was choking on food bolus. Among other things, Schwartz cited a plug of food found on the floor near Nadine's head, the presence of food materials in her mouth and nose, the presence of food particles in her lungs, the possibility that Nadine was bulimic, the fact that she was under the influence of alcohol, and the pattern of injuries was more compatible with choking and resuscitation than strangulation. Being under the influence of alcohol relaxes the gag reflex when food becomes an obstruction during eating.
Schwartz also opined the neck bruises and fracture of the circoid occurred from forceful attempts to remove the bolus from the airway. He described a process called "milking" in which one attempts with one hand to push up food material by applying pressure from outside while using the other hand to reach into the mouth and scoop up the bolus.
The bump on the top of Nadine's head was not a significant head injury and might have been self-inflicted. When a food bolus obstructs the air passage, a person may flail his or her arms and strike the top of his or her head.
Schwartz testified it is rare to find an isolated circoid fracture in a strangulation case. In the literature of strangulation cases, when the circoid has been damaged there are almost always other neck bones and/or cartilage broken as well.Rebuttal
Dr. Vincent DiMaio, a forensic pathologist, opined that Nadine died from manual strangulation after she was hit over the head and stunned or rendered unconscious. DiMaio did not have "any doubt" this was how Nadine died. DiMaio had never heard of "milking" as a resuscitation technique; he opined it was impossible to squeeze the trachea and extract an object as suggested by Schwartz. Nadine's injury (petechia, fractured circoid and neck hemorrhage) were inconsistent with choking on food.
(Pet'r's Lodgement, Vol. I., Ex. D at 2-11.)
II. Legal Standard
Habeas petitions are governed by the provisions of the 1996 Antiterrorism and Effective Death Penalty Act ("AEDPA"). See 28 U.S.C. § 2254(d) (2005). Pursuant to AEDPA, a federal court may grant habeas corpus relief from a state court judgment only if the adjudication was (1) contrary to, or involved an unreasonable application of, clearly established federal law, or (2) based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. See 28 U.S.C. § 2254(d); see also Early v. Packer, 537 U.S. 3, 7-8 (2002).
A state court decision is "contrary to clearly established federal law" if it (1) applies a rule that contradicts the governing law set forth in United States Supreme Court cases, or (2) confronts a set of facts that are materially indistinguishable from a decision of the Supreme Court and nevertheless arrives at the opposite result. See Williams v. Taylor, 529 U.S. 362, 405 (2000). A state court decision is an unreasonable application of the facts "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." Id. at 413.
Where there is no reasoned decision from the state's highest court, the court "looks through" to the underlying appellate court decision. Ylst v. Nunnemaker, 501 U.S. 797, 801-806 (1991). If the dispositive state court order does not "furnish a basis for its reasoning," federal habeas courts conduct an independent review of the record to determine whether the state court's decision is contrary to, or an unreasonable application of clearly established Supreme Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). However, a state court need not cite Supreme Court precedent when resolving a habeas corpus claim. See Early, 537 U.S. at 8 ("[S]o long as neither the reasoning nor the result of the state court decision contradicts [Supreme Court precedent]," the state court decision will not be "contrary to" clearly established federal law.)
The duty of the District Court in connection with a magistrate judge's RR is set forth in Rule 72(b) of the Federal Rules of Civil Procedure and 28 U.S.C. § 636(b)(1). The district court "must make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate." 28 U.S.C. § 636(b)(1)(C); see also United States v. Raddatz, 447 U.S. 667, 673-74 (1980); United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). When no objections are filed, the District Court may assume the correctness of the magistrate judge's factual findings and decide the motion based on the applicable law. See Barilla v. Ervin, 886 F.2d 1514, 1518 (9th Cir. 1989) (holding that "a failure to file objections only relieves the trial court of its burden to give de novo review to factual findings; conclusions of law must still be reviewed de novo") (citation omitted).
In this case, Petitioner has filed objections to the RR. [Doc. No. 24.] Accordingly, this Court will make de novo determinations of those portions of the RR to which objections have been made.
III. Discussion
Petitioner claims that in his trial, a number of errors occurred that were so egregious that the reliability of the verdict and the truth-seeking process were undermined. (Pet'r's Objs. at 31.) Petitioner argues that prosecutorial misconduct, ineffective assistance of counsel, and juror misconduct all contributed to a breakdown of his due process rights to a fair trial. ( Id.) While the Magistrate Judge concedes that certain errors occurred during trial, she concluded that none of the errors amounted to a violation of Petitioner's Constitutional rights. (RR at 15, 25, 34, 41.) Petitioner objects to this conclusion. (Pet'r's Objs. at 1-7.) For the below stated reasons, the Court ADOPTS the RR's conclusions, and DENIES Petitioner's claims.
A. Prosecutorial Misconduct
In the first claim in his Petition, Jacobs argues that the prosecutor's misconduct violated his right to due process. (Pet'r's Pet. at 5.) He identified several incidents of misconduct, which can be grouped into three general categories. ( Id.) First, Jacobs claimed the prosecutor made deliberate factual misrepresentations to the jury about two critical issues: 1) the location of decedent's lividity, and 2) her head injury. ( Id.) Second, he claimed that the prosecutor improperly impugned the motives of defense counsel by claiming the defense had manufactured evidence or influenced the testimony of the defense's principal expert witness. ( Id. at 8.) Finally, Petitioner argues that the prosecutor repeatedly attempted to elicit inadmissible testimony, and thus forced defense counsel to object repeatedly and thereby gave the jury the negative impression that the defense was attempting to conceal relevant evidence from the jury. ( Id. at 9.) The RR concluded that, even when considering all of the alleged incidents of misconduct in the aggregate, Petitioner cannot show that the prosecutor's actions rendered his trial fundamentally unfair. (RR at 29.) Petitioner objects to that conclusion. (Pet'r's Objs. at 11-18.) For the reasons set forth below, the Court DENIES Petitioner's objection, and ADOPTS the RR's conclusion rejecting Petitioner's claim of prosecutorial misconduct.
1. Presentation of knowingly false evidence
a. Lividity
Petitioner objects to the Magistrate Judge's conclusion that although remarks made by the prosecutor during her closing statement were misleading, the state court's conclusion that Petitioner did not suffer prejudice was reasonable. (Pet'r's Objs. at 11-15.) Petitioner also objects to the RR's conclusion that prosecutor did not knowingly present false witness testimony regarding the location of lividity. ( Id.) For the reasons stated below, the Court ADOPTS the Magistrate Judge's finding that any misleading statement made by the prosecutor did not prejudice the Petitioner.
Petitioner argues in his Objections that the prosecutor knew that police officers observed lividity to the front of the decedent's body, but deliberately presented false evidence that there was lividity to the back of her legs and arms when police initially arrived. ( Id. at 11.) Petitioner contends the prosecutor presented this false evidence to support her theory that Petitioner was lying when he told police he found the decedent's face down and then turned her over so that he could attempt to resuscitate her. ( See Pet'r's Pet. at 66-68).
The last reasoned state court decision which addressed the merits of this claim is the California Court of Appeal's denial of Petitioner's state habeas petition. ( See Pet'r's Pet., Ex. F at 2). It is to that decision that this Court must direct its analysis. See Ylst, 501 U.S. at 801-06. In rejecting this claim, the appellate court concluded that, although the "prosecutor's statement regarding lividity during closing argument was not entirely accurate," review of the entire record indicated that the "issue of lividity was of secondary importance in the trial and any misunderstanding that could have arisen could not have prejudiced [Petitioner]." (Pet'r's Pet., Ex. F at 2.) The RR found that the state court's conclusion that Petitioner suffered no prejudice is reasonable, and Petitioner is therefore not entitled to relief. ( See RR at 9-14.)
Clearly established Supreme Court law holds that "[t]he knowing use of perjured testimony by a prosecutor generally requires that the conviction be set aside." Killian v. Poole, 282 F.3d 1204, 1208 (9th Cir. 2002) (citing United States v. Agurs, 427 U.S. 97, 103 (1976).) "The same result obtains when the State, although not soliciting false evidence, allows it to go uncorrected when it appears." Napue v. People of the State of Illinois, 360 U.S. 264, 269 (1959). However, the presentation of conflicting versions of events, without more, does not constitute knowing presentation of false evidence. See United States v. Geston, 299 F.3d 1130, 1135 (9th Cir. 2002) (citing United States v. Sherlock, 962 F.2d 1349, 1364 (9th Cir. 1989)).
In order to prevail on a claim that such misconduct amounted to a violation of due process rights, three things are required: (1) the testimony or evidence must be false, (2) the prosecution must have known or should have known it was false, and (3) the false testimony must be material. See Hayes v. Brown, 399 F.3d 972, 984 (9th Cir. 2005) (en banc) (citing United States v. Zuno-Arce, 339 F.3d 886, 889 (9th Cir. 2003)). In determining materiality, a court considers "whether there is any reasonable likelihood the false testimony could have affected the judgment of the jury." Hayes, 399 F.3d at 985 (quoting Belmontes v. Woodford, 350 F.3d 861, 881-82 (9th Cir. 2003)).
In regards to the prosecutor's closing argument, Petitioner's objects to the RR's conclusion that the prosecutor's statements were not material. (Pet'r's Objs. at 12.) As the state court of appeals and the RR both conclude, the prosecutor's statements about lividity found on the victim and its discrediting effect on Petitioner's account of the circumstances following his discovery of the victim's body was improper. (RR at 12.) During closing arguments, the prosecutor stated that Officer Glazewski had testified that she had seen lividity to the back of the decedent's legs. (Resp't's Answer to Pet., Lodgm't No. 8, Vol. 13 at 3070.) However, Officer Glazewski did not specify in her testimony or police report whether the lividity was to the front or back of the body. ( See Resp't's Answer to Pet., Lodgm't No. 8, Vol. 1 at 137.) In fact, Officer De la Cruz's police report indicating that he saw frontal lividity was the only evidence in the record specifying whether the lividity was to the front or back of the victim. ( See id. at 141-42, 137.) Since it was clearly noted in Officer De la Cruz's report, which the prosecutor reviewed, the prosecutor knew or should have known about De la Cruz's observation of frontal lividity. ( See id. at 742, 756.) In addition, notes from a telephone discussion between the prosecutor and the medical examiner indicate that they discussed De la Cruz's observations. ( See Pet'r's Pet., Lodgm't Vol. 2 at 76.)
Even though the prosecutor knew or should have known about Officer de la Cruz's observation of frontal lividity, the prosecutor made a statement and argued an inference contrary to the only specific report concerning the location of lividity. (Resp't's Answer to Pet., Lodgm't No. 8, Vol. 13 at 3070.) The prosecutor's statement was misleading in that she characterized Officer Glazewski's general statement that she saw lividity to the decedent's legs and arms as clear evidence that there was lividity to the back of the body. ( See id.) She also used that misleading characterization to develop a theory to discredit Petitioner's account of the circumstances that ensued after he discovered the decedent's body. ( See id.) She argued that Petitioner's explanation that he found the decedent face down and rapidly flipped her over was dubious given the fact that Officer Glazewski arrived seventeen minutes after Petitioner's 911 call, suggesting that was not enough time for lividity to form. ( Id. at 3071.)
While the prosecutor's statement was misleading, this does not indicate, as the Petitioner argues in his objections, that false testimony was presented. Officer Glazewski, the only officer questioned about the subject at trial, merely stated that she remembered seeing lividity to the decedent's thigh and calf, which was consistent with her report that indicated she observed signs of lividity "in both arms and legs." ( See Pet'r's Pet., Lodgm't Vol. 1 at 137.) That Officer De la Cruz may have seen something different does not make Officer Glazewski's testimony false. See United States v. Geston, 299 F.3d 1130, 1135 (9th Cir. 2002) (stating the presentation of conflicting versions of events, without more, does not constitute knowing presentation of false testimony).
However even when no "false" testimony has been offered, the Ninth Circuit has held that it is improper for a prosecutor to argue inferences she or he knows to be inaccurate:
It is certainly within the bounds of fair advocacy for a prosecutor, like any lawyer to ask the jury to draw inferences from the evidence that the prosecutor believes in good faith might be true. But it is decidedly improper for the government to propound inferences that it knows to be false, or has very strong reason to doubt. . . . United States v. Blueford, 312 F.3d 962, 968 (9th Cir. 2002).
However, although the prosecutor's statements about lividity were improper, Petitioner is not entitled to relief. As the RR concludes, the state court's finding that Petitioner suffered no prejudice from the prosecutor's improper statements on lividity is reasonable. (RR at 13.) It was reasonable for the appellate court to conclude that prosecutor's improper statements on the subject were not material because there is no reasonable likelihood that the judgment of the jury was affected by any inaccurate or misleading evidence concerning lividity.
Furthermore, Petitioner is incorrect in arguing, based on Hayes, that prosecutor's improper comments regarding Petitioner's consciousness of guilt were material because the comments allowed the jury to resolve the case by finding petitioner lied, rather than by resolving complex competing medical evidence as to the cause of death. (Pet'r's Objs. at 14.) See Hayes, 399 F.3d at 986. In Hayes, the Ninth Circuit held that evidence of an undisclosed deal with a witness was material where the testimony regarding the defendant's confession was undoubtedly the centerpiece of the prosecution's case, and almost all of the other evidence against the defendant was circumstantial. Id. This is not the case here. The lividity issue was a minor, tangential piece of the state's case. The centerpiece of the state's case was the evidence of injuries to the body, which indicated that the decedent had been hit over the head, stunned, and manually strangled.
In sum, there was a wealth of evidence presented by the state supporting the conclusion that the decedent died as a result of strangulation, none of which depended on where lividity appeared on the body. Petitioner has not shown a reasonable likelihood that the prosecutor's isolated improper statement about the location of lividity could have affected the outcome. See Hayes, 399 F.3d at 985. Accordingly, the state court's conclusion that Petitioner suffered no prejudice from the prosecutor's misstatement was neither contrary to, nor an unreasonable application of clearly established law. See 28 U.S.C. § 2254 (d)(1); Williams, 529 U.S. at 412-13. b. Head Injury
Petitioner argues that the prosecutor presented false evidence regarding the location of the severe injury to the decedent's head. (Pet'r's Objs. at 15-17.) Petitioner claims the prosecutor misrepresented the location of that head injury ("the knockout blow") to support her argument that the injury could only be the result of a blow from another person to the top of the head. (Pet'r's Objs. at 15.) Petitioner contends this was prejudicial since it enabled the prosecutor to argue that because the injury was to the top of the head, it could not have happened as the result of falling or accidentally hitting her head while she was choking. ( Id. at 17.)
At trial, the prosecutor admitted People's Exhibit 17C, which circled a discolored area at the top of the decedent's head to show where the "knock out blow" was located. ( See Resp't's Answer to Pet., Lodgm't No. 7.) Petitioner claims that Exhibit 17C misrepresented the location of the "knock out blow" by circling a discoloration at the top of the decedent's head that, he argues, was likely caused by a skin rash, not a blow to the head. (Pet'r's Objs. at 16.) Based on the autopsy report, Petitioner contends that the "knock out blow" described in the report is almost three inches to the side of the decedent's head and two inches behind her hair. (Pet'r's Objs. at 15.) Petitioner refers to a portion of the autopsy report that describes an external head injury to the "posterior right parietal region of the scalp centered 2 3/4 inches to right of the sagittal midline and approximately 2 inches behind the mid coronal plane of the ear canal." ( Id.) Accordingly, based on the autopsy report, Petitioner argues that the circled region in People's Exhibit 17C was not the location of the "knockout blow." ( Id.) Petitioner argues the injury was actually located below the "hatband," which refers to the bony protuberance area encircling the head or skull. ( See Resp't's Answer to Pet., Lodgm't No. 7 at 962-63.) ( Id.) In addition, as a part of his habeas corpus petition in the state Court of Appeal, Petitioner presented a declaration from a pathologist that the area circled in People Exhibit 17C did not correspond to the injury to the head described in the autopsy report. (Pet'r Pet., Lodgm't Vol. 2, Ex. QQ at 2.) Petitioner claims that the prosecutor's display of Exhibit 17C coupled with her related argument resulted in a presentation of false evidence by implying that the "knock out blow" corresponded to the discolored area at the top of the decedent's scalp. (Pet'r's Objs. at 16.) Accordingly, Petitioner claims a hearing is necessary to determine whether the prosecutor knowingly presented the alleged false evidence. ( Id. at 17.)
The last reasoned state court decision which addressed the merits of this claim is the California Court of Appeal's denial of Petitioners' state habeas petition. ( See Pet'r's Pet., Ex. F at 2.) Accordingly, the court will direct its analysis to that decision. Ylst, 501 U.S. at 805-06. The state appellate court found that the prosecutor had not misrepresented the location of the head injury and that her argument was consistent with the testimony of the prosecution experts and autopsy report. ( See Pet'r's Pet., Ex. F at 2.) Because the state court's opinion was neither an unreasonable determination of the facts, nor contrary to an unreasonable application of clearly established federal law, a hearing on the prosecutor's intent is unnecessary. Accordingly, the Court DENIES petitioner's claim.
After thoroughly reviewing all the testimony concerning the head injuries, the Court can find nothing clearly depicting that the "knock out blow" was located at or below the "hatband." Petitioner argues that the statement from the autopsy report mentioned above clearly indicates the injury was below the "hatband," and thus Exhibit 17C was a misrepresentation of the location of that injury. (Pet'r's Objs. at 15.) However, as the RR concluded, the statement in the autopsy report is not sufficiently clear to determine the precise location of the injury. (RR at 18.) The jury was presented with numerous photographs, diagrams, and expert witness testimony from both parties concerning the head injuries. Accordingly, it was up to the jury to decide what weight to accord to the exhibits and testimony. Based on all of the evidence presented, the jurors could determine for themselves the likely location of the head injuries and the credibility of the corresponding theories regarding the cause of death. See Geston, 299 F.3d at 1135 (holding it is within the province of the jury to resolve two conflicting versions of an incident). Prosecutor's argument merely amounted to a difference of opinion from the defense theory, which does not constitute knowing presentation of false evidence.
In sum, after reviewing the relevant testimony and evidence presented at trial, the Court FINDS the state court reasonably concluded that the state had not misrepresented the location of the head injuries. Accordingly, the state's decision was not an unreasonable determination of the facts in light of the state court's record. See 28 U.S.C. § 2254(d)(2). Furthermore, the Court FINDS the appellate court's denial of this claim was neither contrary to, nor an unreasonable application of, clearly established law. See Williams, 529 U.S. at 412-413. Accordingly, Petitioner is DENIED relief as to this claim.
2. Impugning Defense Counsel's Motives and Attempts to Elicit Improper Testimony
The RR concludes that Petitioner is not entitled to relief based on various other prosecutorial misconduct claims. (RR at 20-26.) Petitioner objects to the RR's rejection of two of his claims: (1) the prosecutor improperly impugned the integrity of the trial counsel by arguing that expert testimony was purchased by the defense, and (2) the prosecutor improperly attempted to elicit inadmissible testimony, forcing the defense to object repeatedly, thereby making it appear as if the defense was preventing the jury from hearing relevant evidence. ( See Pet'r's Objs. at 17-18.)
The RR found the state appellate court's denials of Petitioner's prosecutorial misconduct claims were neither contrary to, nor an unreasonable application of clearly established Supreme Court law. (RR at 29.) The RR also concluded that the state court's decision did not rest on an unreasonable determination of the facts. ( Id.) While Petitioner objects to the RR's finding that Petitioner has not been prejudiced by the misconduct, he states no basis for his objection. ( See Pet'r's Objs. at 18.) For the following reasons, the Court ADOPTS the Magistrate Judge's finding.
While the appellate court found the prosecutor's attempts to impugn the motives of defense counsel and to elicit improper testimony were inappropriate, it concluded that Petitioner cannot show that the prosecutor's actions rendered his trial fundamentally unfair. (Pet'r's Pet., Lodgm't Vol. 1, Ex. D at 25.) Under clearly established Supreme Court law, a defendant's due process rights are violated when a prosecutor's misconduct renders a trial "fundamentally unfair." See Darden v. Wainwright, 477 U.S. 168, 181 (1986); see also 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"). Claims of prosecutorial misconduct are reviewed "on the merits, examining the entire proceedings to determine whether the prosecutor's remarks so infected the trial with unfairness as to make the resulting conviction a denial of due process." Johnson v. Sublett, 63 F.3d 926, 929 (9th Cir.) (citation omitted).
Factors that a court may take into account in determining whether misconduct rises to the level of a due process violation are: (1) whether the judge issued a curative instruction, see Greer v. Miller, 483 U.S. 756, 766 n. 8 (1987) (holding that courts normally presume a jury will follow an instruction to disregard inadmissible evidence inadvertently presented to it, unless there is an "overwhelming probability" that the jury will be unable to follow the court's instructions and a strong likelihood that the effect of the evidence would be "devastating" to the defendant); (2) the weight of evidence of guilt, see United States v. Young, 470 U.S. 1, 19 (1985) (finding overwhelming evidence of respondent's intent to defraud eliminated any lingering doubt that the prosecutor's remarks unfairly prejudiced the jury's deliberations); (3) whether the misconduct relates to a critical part of the case, see Giglio v. United States, 405 U.S. 150, 154 (1972) (failure to disclose information showing potential bias of witness especially significant because government's case rested on credibility of that witness); and (4) whether a prosecutor's comment misstates or manipulates the evidence, see Wainwright, 477 U.S. at 182.
After reviewing the record in light of the above factors, the state appellate court concluded that Petitioner's due process rights were not violated. ( See Pet'r's Pet., Lodgm't Vol. 1, Ex. D at 24-25.) The state appellate court's denials of Petitioner's prosecutorial misconduct claims were neither contrary to, nor an unreasonable application of clearly established law. In addition, the state court's decision did not rest on an unreasonable determination of the facts. As the RR concluded, to the extent the prosecutor's comments were directed at defense counsel, Petitioner cannot show they were so egregious as to render his trial fundamentally unfair. (RR at 23, see also Smith, 455 U.S. at 219.) The rest of the statements, when viewed in context, were directed at discrediting the testimony of the defense experts, and therefore did not constitute misconduct. Accordingly, the Court DENIES Petitioner's claim that the prosecutor attempted to impugn the motives of defense counsel. See Williams, 529 U.S. at 412-413; 28 U.S.C. § 2254(d)(1) (d)(2).
Petitioner also objects to the RR's rejection of his claim that his due process rights were violated by the prosecutor's attempts to elicit inadmissible testimony. (Pet'r's Objs. at 17-18.) Petitioner claims the prosecutor forced the defense to object repeatedly, thereby making it appear as if the defense was preventing the jury from hearing relevant evidence. (Pet'r's Objs. at 17.) In his petition, Petitioner described several instances in which he claims the prosecutor attempted to elicit inadmissible testimony in defiance of the trial court's previous orders. (Pet'r's Pet. at 65.) The state court of appeals denied Petitioner's claim, concluding that "to the extent there was misconduct here, it was harmless." (Pet'r's Lodgment, Vol. 1, Ex. D at 27.) The court determined that it was not reasonably probable that a more favorable result would have occurred had the prosecutor not committed the misconduct:
Any prejudice was either cured by the court's admonitions or the prosecution disowning her earlier comments about counsel. Moreover, notwithstanding our labeling it misconduct, the prosecutor's actions in this case were not so egregious as to deny Jacobs a fair trial or of such a serious nature so as to require a reversal.Id. (citing People v. Sculy, 53 Cal. 3d 1195, 1236 (1991).)
As the RR concluded, the state court's decision was neither contrary to, nor an unreasonable application of, clearly established federal law. (RR at 27.) First, the standard applied by the state appellate court, whether any misconduct amounted to a denial of Petitioner's right to a fair trial, is consistent with clearly established federal law. See Wainwright, 447 U.S. at 181. Furthermore, the appellate court reasonably concluded that the incidents of alleged misconduct were isolated and did not render Petitioner's trial fundamentally unfair. (Pet'r's Pet., Lodgm't Vol. 1, Ex. D at 27.) All of defense counsel's objections to the prosecutor's questions were sustained by the trial court. (Resp't's Answer to Pet., Lodgment No. 9, vol 1 at 134.) No inadmissible testimony was elicited as the questions were not answered. ( Id.) The jury was properly instructed that when an objection is sustained, the jury is not to speculate about the answer, the reason for objection or to insinuate anything from the question itself. ( Id.) The jury also was instructed not to consider statements made by attorneys as evidence. ( Id.) When such curative instructions have been issued, a reviewing court presumes that the jury has disregarded any inadmissible evidence, and that no due process violation occurred. See Greer, 483 U.S. at 766 n. 8; see also Wainwright, 477 U.S. at 182. Even if the Court presumes misconduct, since there is no evidence in the record to suggest that the jury did not follow the court's instruction, Petitioner cannot show that the misconduct rendered his trial fundamentally unfair. Accordingly, the state court's denial of the claim was neither contrary to, nor an unreasonable application of clearly established federal law. The Court DENIES Petitioner's claim as to the prosecutor's alleged attempts to elicit inadmissible testimony.
Petitioner argues in his Objections that the state appellate court never considered whether the aggregate effect of all the prosecutorial misconduct alleged in the petition denied Petitioner a fair trial. (Pet'r's Objs. at 17.) Petitioner claims that because different aspects of the misconduct were considered at different stages, either direct appeal or on habeas corpus, there is "no reasoned state court decision on the gestalt effect of the prosecutor's coordinated effort to deny Petitioner a fair trial." ( Id.) However, as the RR concluded, even if the Court considers all of the alleged incidents of misconduct in the aggregate, Petitioner cannot show that the prosecutor's actions rendered his trial fundamentally unfair. (RR at 29.) In the aggregate, the conduct was not so egregious that it infected the trial with such unfairness as to make the conviction a denial of due process. Moreover, above, the Court has explained the reasons why it finds that each alleged incident of misconduct did not prejudice Petitioner. Accordingly, the Court FINDS Petitioner is not entitled to relief based on his prosecutorial misconduct claims.
B. Brady Violations
Petitioner alleges the prosecution violated Brady v. Maryland, 373 U.S. 83, 86 (1963) by failing to disclose that after the preliminary hearing but before trial, Dr. Swalwell reviewed two articles that contradicted his testimony at the preliminary hearing. (Pet'r's Pet. at 73-74.) The RR found that the state court of appeals erred in finding that deputy medical examiner's research did not constitute exculpatory evidence within the meaning of Brady. (RR at 32.) The RR concludes, however, that the prosecutor's failure to disclose the exculpatory evidence was harmless because the evidence was not material to Petitioner's defense. ( Id. at 34.) Petitioner objects to that conclusion. (Pet'r's Objs. at 18-19.) For the reasons given below, this Court ADOPTS the RR's findings, and DENIES Petitioner relief.
In Brady, the Supreme Court held that "[t]he suppression by the prosecution of evidence favorable to an accused upon request violates due process when the evidence is material either to guilt or punishment, irrespective of the good faith or bad faith of the prosecution." 373 U.S. at 87. Although this rule originally covered only exculpatory evidence, the Supreme Court has extended the Brady rule to include impeachment evidence as well. See United States v. Bagley, 473 U.S. 667, 676 (1985).
The RR found indications that Dr. Swalwell had reviewed two articles between the preliminary hearing and trial, which could have been used by Petitioner for impeachment purposes. (RR at 32.) At the preliminary hearing, Dr. Swalwell testified that the decedent's blood alcohol content, which was .10, was "not really" significant to his findings. (Pet'r's Pet., Lodgm't Vol. 2 at 4.) He also testified that he had "never seen or heard of a case where somebody got an obstruction from something like a soft pastry." ( Id. at 6.) In addition, Dr. Swalwell said he did not think it was possible that the decedent had choked to death on such a substance. ( Id.) At trial Dr. Swalwell did not testify that he never heard of a case of someone choking on soft food or of alcohol playing a role in choking deaths. However, Dr. Swalwell did state that in his opinion that soft food and alcohol did not play a factor in the decedent's death. ( See Resp't's Answer to Pet., Lodgm't No. 8, Vol. 13 at 3123-25, 1326.) Accordingly, had the defense known that Dr. Swalwell reviewed the two articles, the defense could have used that information to attempt to impeach the doctor by arguing that he disregarded the articles because they contradicted the prosecution's theory. The defense could have used it as an example of Dr. Swalwell's closed mind or prosecutorial bias.
However, the RR concluded that Petitioner is not entitled to relief because he cannot show that the undisclosed evidence was material. (RR at 32-33.) Petitioner objects to this conclusion. ( See Pet'r's Objs. at 18-19.) In order to establish a Brady violation, a defendant must show three things: (1) the evidence must have been suppressed by the prosecution, either willfully or inadvertently, (2) the withheld evidence must be either exculpatory or impeachment material, and (3) the evidence must be material to the defense. See Benn v. Lambert, 283 F.3d 1040, 1052-53 (9th Cir. 2002) (citing Bagley, 473 U.S. at 676, 678, United States v. Agurs, 427 U.S. 97, 110 (1976).) "Evidence is deemed prejudicial, or material, only if it undermines confidence in the outcome of the trial." Lambert, 283 F.3d at 1053.
Petitioner cannot demonstrate he was prejudiced by the prosecutor's failure to disclose the evidence because the impeachment value of Dr. Swalwell's review of the articles was slight. As the RR concluded, even if defense counsel had questioned Dr. Swalwell regarding his review of the articles, it is unlikely to have suggested significant bias on his part. (RR at 33.) It seems likely that the jury merely would have concluded that consulting the articles did not alter his opinion in light of the strength of the other physical evidence pointing to strangulation.
In addition, the defense was able to impeach Dr. Swalwell through the testimony of its own expert witness, Dr. Schwartz. (See Pet'r's Pet., Lodgm't Vol. 2, Ex. X at 106-07.) Dr. Schwartz provided extensive testimony consistent with the two articles at issue. (Resp't's Answer to Pet., Lodgm't No. 8, vol. 11 at 2314-17, 2296-300.) Dr. Schwartz testified that alcohol is a significant factor in choking deaths and that it is possible to choke on a soft pastry; he also referred to articles that discussed such cases, including The Fatal Café Coronary. Foreign-body airway obstruction. ( See id. (citing R.E. Mittleman and C.V. Wetli, The Fatal Café Coronary, 247 J. OF AM. MED. ASS'N 1285 (March 5, 1982)).) As the RR concludes, nearly everything Jacobs contends prosecutor's failure to disclose Dr. Swalwell's review of the articles prevented him from doing, Jacobs did through the expert testimony of Dr. Schwartz. (RR at 33.) Accordingly, Petitioner cannot show the evidence was material to the defense. There is simply nothing to suggest a reasonable probability that the outcome would have been affected by a disclosure of the evidence. Accordingly, this Court ADOPTS the RR, and FINDS Petitioner is not entitled to relief as to this claim.
C. Ineffective Assistance of Trial Counsel
Petitioner asserts he received ineffective assistance of counsel in violation of his Sixth Amendment rights. ( See Pet'r's Objs. at 19-30.) Petitioner's claims can be grouped into four general categories: (1) trial counsel failed to present evidence of lividity to the front of the decedent's body or to challenge evidence presented to the contrary and failed to challenge the state witnesses' purported inaccurate testimony regarding the head injuries; (2) trial counsel failed to adequately cross-examine the prosecution's experts; (3) trial counsel failed to challenge Dr. Swalwell's autopsy methodology; and (4) trial counsel failed to adequately bolster the testimony of defense expert Dr. Schwartz. See id. For the reasons given below, the Court DENIES Petitioner relief as to all his claims for ineffective assistance of counsel.
In Strickland v. Washington, 466 U.S. 668, 668 (1984), the Supreme Court established a two-part test for ineffective assistance of counsel claims. First, an attorney's representation must have fallen below an objective standard of reasonableness. Id. Second, counsel's errors must have prejudiced defendant. Id. at 694. Prejudice can be demonstrated by a showing that "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different. A reasonable probability is a probability sufficient to undermine confidence in the outcome." Id.; see also Fretwell v. Lockhart, 506 U.S. 364, 372 (1993). Strickland further requires that "[j]udicial scrutiny of counsel's performance . . . be highly deferential." 466 U.S. at 689. There is a "strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Id. at 686-87. The Court need not address both the deficiency prong and the prejudice prong if the defendant fails to make a sufficient showing of either. Id. at 697.
In rejecting Petitioner's ineffective assistance claim, the RR concluded that the state appellate court's denial of Petitioner's claim was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. (RR at 45.) Petitioner objects to the RR's deference to the appellate court's conclusion. (Pet'r's Objs. at 19.) Petitioner contends that because the state court never referred to the controlling Strickland federal standard on this claim, the state court's denial of Petitioner's claim of ineffective assistance is not entitled deference under 28 U.S.C. § 2254(d). (Pet'r's Objs. at 19-20.)
Rather than referring to Strickland, the state appellate court cited People v. Pope, 590 P.2d 859, 866 (Cal. 1979), in concluding that Petitioner did not demonstrate that "his trial counsel failed to act in a manner to be expected of reasonably competent attorneys acting as diligent advocates or that their acts or omissions resulted in the withdrawal of a potentially meritorious defense." (Pet'r Pet., Ex. F at 2.) As the Petitioner argues and the RR agrees, the Pope standard is narrower on its face than the federal standard. (Pet'r's Objs. At 19, RR at 45.) Under Pope, only errors resulting in the "withdrawal of a potentially meritorious defense" are sufficient to obtain relief. Pope, 590 P.2d at 866. In contrast, the Strickland standard requires that the Petitioner show "a reasonable probability that, but for counsel's unprofessional errors, the result of the proceedings would have been different." Strickland, 466 U.S. at 694. However, as the RR correctly notes, California courts have generally interpreted Pope more broadly, in a manner consistent with Strickland. (RR at 36.) See People v. Fosselman, 659 P.2d 1144, 1149 (Cal. 1983) (stating that unreasonable failure to move for a mistrial for evidentiary error would constitute a withdrawal of "potentially meritorious defense"); People v. Lanphear, 608 P.2d 689, 696 n. 6 (Cal. 1980) (assuming counsel's failure to object to other-crimes evidence deprived the defendant of a potentially meritorious defense); People v. Nation, 604 P.2d 1051, 1058 (Cal. 1980) (finding counsel's performance inadequate because of his failure to object to critical identification evidence).
Regardless, even assuming the standard applied by the court of appeal is narrower than Strickland, so long as neither the reasoning nor the result of the state court decision contradicts Strickland, the state court decision will not be "contrary to" clearly established federal law:
A state-court decision is "contrary to" our clearly established precedents if it "applies a rule that contradicts the governing law set forth in our cases" or if it "confronts a set of facts that are materially indistinguishable from a decision of this Court and nevertheless arrives at a result different from our precedent." Williams v. Taylor, 529 U.S. 362, 405-406 (2000). Avoiding these pitfalls does not require citation of our cases — indeed, it does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.Early v. Packer, 537 U.S. 3, 8 (2002). Accordingly, the ultimate question is whether the state court's conclusion that Petitioner did not receive ineffective assistance of counsel contradicts Strickland, or is objectively unreasonable in light of Strickland. See id. This Court, will now apply that analysis.
1. Failure to challenge lividity and head injury evidence
Petitioner objects to the RR's conclusion that defense counsel's failure to present evidence of lividity to the front of the decedent's body, although unreasonable, did not prejudice Petitioner. (Pet'r's Objs. at 20.) Defendant's counsel could have presented evidence of frontal lividity because, as discussed above, Officer De la Cruz's report contained such evidence, and counsel had a copy of the report. ( See Resp't's Answer to Pet., Lodgm't No. 8, Vol. 1 at 141-42.) As the RR concludes, reasonable defense counsel would have used this evidence because presentation of the frontal lividity evidence would have lent support to Petitioner's statement to police that he had found the decedent's body face down and had flipped her over. ( See RR at 37, Pet'r's Objs. 20-21.) Moreover, the RR also correctly finds that presentation of the evidence would have undermined, at least to some degree, the state's suggestion that Petitioner staged the scene. (RR at 37.) Thus, defense counsel's failure to question Officer De la Cruz about the lividity was unreasonable. See Strickland, 466 U.S. at 688.
However, the RR is justified in concluding that the state appellate court's denial of this claim does not contradict Strickland, and is not objectively unreasonable in light of Strickland, because Petitioner suffered no prejudice from counsel's failure to present the evidence. (RR at 38.) In his objections, Petitioner argues his counsel's errors prejudiced him because the evidence would have given "an independent means for the jury to have resolved the case without deciding whether the state's expert evidence proved death by strangulation beyond a reasonable doubt." (Pet'r's Objs. at 20.) However, as discussed supra, the lividity issue was only a minor piece of the prosecution's case because it was only a small part of the prosecution's argument that Petitioner staged the scene. (RR at 38.) In addition, as the RR notes, the opinions of the state's medical experts formed the backbone of the prosecution's case; and lividity was not relevant to their ultimate conclusion that the decedent's had been strangled. ( Id.)
Petitioner also argues that defense counsel's failure to point out and clarify the prosecutor's alleged misrepresentation of the location of the decedent's's head injury, described supra as the "knockout blow," amounted to ineffective assistance of counsel. (Pet'r's Objs. at 85.) As discussed above, and as the RR also concluded, the prosecutor and state witnesses did not misrepresent the location or nature of the injuries to the decedent's's head. (RR at 38.) What Petitioner alleges as a misrepresentation by the state, was actually nothing more than a difference in opinion between the prosecution and defense theories of injury. Counsel reasonably and effectively presented the defense's theory through the testimony of its medical expert, Dr. Schwartz. ( See Resp't's Answer to Pet., Lodgm't No. 8, Vol. 10 at 2291-2321.) Accordingly, defense counsel's failure to note the prosecutor's presentation of allegedly misleading evidence regarding the location of the decedent's head injuries was not unreasonable. See Strickland, 466 U.S. at 668. Accordingly, the Court ADOPTS the RR's finding that the appellate court's conclusion was neither contrary to, nor an unreasonable application of, Strickland.
2. Failure to adequately challenge state's experts
Petitioner objects to the RR's conclusion that defense counsel's failure to confront the state's experts, Dr. Swalwell and Dr. Dr. DiMaio, with medical articles contradicting their opinion did not amount to ineffective assistance of counsel. (Pet'r's Objs. at 21-24.) Petitioner claims he was prejudiced because his attorneys did not use the articles given to them by Dr. Schwartz to contradict the state witnesses' testimony about strangulation, including the witnesses' testimony that (a) the decedent could not have choked on soft pastry; (b) that she particularly could not have done so if the pastry was lodged in her mouth above the epiglottis; (c) her blood alcohol content would not have been a contributing factor to her death by choking; (d) she had injures that could not be explained by choking or resuscitation; and (e) other facts, such as the lack of incontinence and bruising. ( See Pet'r's Pet. at 82-86.)
It is true that in cross-examining Dr. Swalwell, defense counsel did not refer to articles in his possession that contradicted some of that state expert's testimony. ( See Pet'r's Pet., Lodgm't Vol. 2, Ex. R at 3.) But, as the RR notes and Petitioner concedes, the defense attempted to counter all of the above assertions by offering the testimony of its own expert, Dr. Schwartz. (RR at 39, Pet'r's Objs. at 21.) As the RR notes, Dr. Schwartz's testimony directly countered Dr. Swalwell's:
Dr. Schwartz testified that, in his opinion, [the decedent] had choked on lemon pastry. He stressed that it was possible to choke on the food bolus of soft foods and that people can choke on things lodged above the epiglottis. He referred to articles discussing "café coronaries" which suggested that people can choke on soft food and that alcohol increases a person's risk of choking. Dr. Schwartz testified about his opinion that the injuries to the neck, which the state could not have been caused by attempted resuscitation, in fact were. For instance, he opined that the hemorrhages to [the decedent's] neck occurred as [Petitioner] was attempting to dislodge the food from her throat. Finally, Dr. Schwartz stated it was unusual to see a fracture to the circoid caused by strangulation, without seeing other fractures in the neck.
(RR at 39-40.) ( internal citations omitted).
In addition, the RR also notes that even when defense counsel attempted to challenge the prosecution's experts with articles, the result was not necessarily beneficial to the defense. (RR at 40.) For instance, the RR refers to when defense counsel asked Dr. DiMaio, a state expert witness, about an article in NURSE PRACTITIONER entitled Café Coronary: Recognition Treatment and Prevention that described "milking" food from the throat of a choking woman. ( See Resp't's Answer to Pet., Lodgm't No. 8, vol. 12 at 2874 (citing G. Kitay and N. Shafer, Café Coronary: Recognition Treatment and Prevention, 6 NURSE PRACTITIONER 35 (June 1989)).) Dr. DiMaio had previously testified that he had never heard of "milking" as a resuscitation technique and that it was impossible, in his opinion, to squeeze the trachea and extract an object as suggested by Dr. Schwartz. ( See id. at 2794, 2804-05.) After reviewing the portion of the article given to him by defense counsel, Dr. DiMaio testified during cross-examination that the article did not change his opinion since the incident described in the article took place only after a tracheotomy had been performed. ( Id. at 2874-78.) Accordingly, defense counsel's attempt to cross-examine Dr. DiMaio with the article was unsuccessful.
The RR views the cross-examination of Dr. DiMaio as evidence that it was reasonable for defense counsel not to use other articles to challenge the prosecution's expert witnesses since the outcome was not always favorable to the defense. (RR at 40.) However, Petitioner contends that the incident highlights the failure of defense counsel "to effectively confront Drs. Swalwell and DiMaio with authoritative texts and articles that they could not dismiss or distinguish, in contrast to the anecdote in NURSE PRACTITIONER." (Pet'r's Objs. at 22.)
For example, Petitioner notes that Dr. Swalwell was not confronted with the Café Coronary article that noted a direct correlation between choking and blood alcohol level of .10 or greater, which was contrary to Dr. Swalwell's testimony. (Pet'r's Objs. at 22.). Petitioner points out that the same correlation between alcohol intoxication and choking on food was noted in Death by Bolus Impact, an article sent to defense counsel by Dr. Schwartz. ( Id. (citing Bante and Jacob, Death by Bolus Impact, Dysphagia 33 (1994)).) Accordingly, Petitioner argues that had defense counsel offered both articles, it "would have made both experts appear stubborn and biased" in the face of corroborating authority contradicting their opinion. ( Id.) In addition, Petitioner argues that other articles from authoritative texts relied upon by Dr. Swalwell and Dr. DiMaio, including Dr. DiMaio's own textbook, would have contradicted aspects of their opinions and would not have suffered the same dismissive fate as the Café Coronary article from NURSE PRACTITIONER. (Pet'r's Objs. at 23.)
As the RR concludes, even assuming the articles would have provided some support to the defense theory, failure to use them does not render counsel's performance deficient under Strickland. (RR at 40.) As discussed above, there is a "strong presumption that counsel's conduct falls within a wide range of reasonable professional assistance." Strickland, 466 U.S. at 686-87. Petitioner must overcome the presumption that counsel's action might be considered sound trial strategy. See id. The Court must attempt to "reconstruct the circumstance's of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. Considering the presumption of sound trial strategy, it was not unreasonable for defense counsel to employ the tactic of using the opinion of another expert, Dr. Schwartz, to impeach Dr. Swalwell's testimony. Although information in the articles was consistent with Dr. Schwartz's opinion, it does not constitute deficient performance to let Dr. Schwartz's testimony stand alone, especially considering the effectiveness Dr. DiMaio displayed in handling cross-examination regarding the Café Coronary article in NURSE PRACTITIONER. Since defense counsel presented substantial evidence to counter the testimony of the state's medical experts, counsel's performance was more than sufficient to satisfy Strickland's "strong presumption" of reasonable performance.
Moreover, as the RR concludes, Petitioner cannot show prejudice resulted from any failure to bring in the articles. (RR at 41.) Given the strength of the medical evidence indicating the decedent was strangled, there is no reasonable likelihood that the use of the articles would have altered the outcome. In addition, defense counsel already presented its theories to counter the state's evidence with its own expert witness. As discussed above, the defense was able to impeach Dr. Swalwell's testimony through the testimony of its own expert witness, Dr. Schwartz. (See Pet'r's Pet., Lodgm't Vol. 2, Ex. X at 106-07.) Dr. Schwartz provided extensive testimony consistent with the articles. (Resp't's Answer to Pet., Lodgm't No. 8, vol. 11 at 2314-17, 2296-300.) Petitioner cannot show a reasonable probability that the result would have been different had defense counsel also attempted to counter the state's evidence with the medical texts and articles. See Strickland, 466 U.S. at 694. Accordingly, the Court FINDS that the appellate court's conclusion was neither contrary to, nor an unreasonable application of, Strickland.
3. Failure to adequately challenge the methodology of state expert witness
Petitioner also objects to the RR's conclusion that defense counsel's failure to attack the autopsy procedure performed by Dr. Swalwell was not ineffective assistance of counsel. (Pet'r's Objs. at 24.) Specifically, Petitioner contends defense counsel was ineffective in failing (a) to challenge Dr. Swalwell's use of a Y-shaped incision to dissect the neck during the autopsy, (b) to challenge the lack of a "blood free" environment, and (c) to cite neutral standards that showed the medical examiner's officer was overworked and likely to make errors. ( Id. at 24-28.) The RR found that the mere possibility that questioning Dr. Swalwell about his dissection might have been helpful does not render defense counsel's failure to do so unreasonable under Strickland. (RR at 42.) For the reasons provided below, this Court FINDS that defense counsel's failure to attack the autopsy procedure performed by Dr. Swalwell was not ineffective assistance of counsel.
Petitioner argues that it was critical for defense counsel to attack Dr. Swalwell's methodology in conducting the autopsy in order to rebut the state's evidence supporting the theory that the decedent must have been strangled. (Pet'r's Objs. at 24.) Petitioner cites various medical articles, including some of the same texts Dr. Swalwell consulted and referred to as "authoritative," that expressly criticize Dr. Swalwell's use of the Y-shaped incision and the examination of the neck organs prior to removal of the brain and organs of the viscera. ( Id. at 25.) Petitioner argues that textual support shows Dr. Swalwell's technique is disfavored because counsel can produce results that falsely appear to be indicative of strangulation. ( Id. at 24-28.) Petitioner argues that had defense counsel argued this point, it would have shown that the data supporting Dr. Swalwell's conclusions and Dr. DiMaio's rebuttal was unreliable. ( Id. at 29.) Accordingly, he argues that his attorney's failure to do so resulted in ineffective assistance of counsel. ( Id.)
As the RR concludes, defense counsel's failure to raise the methodology of the autopsy during cross examination of Dr. Swalwell does not render counsel's performance deficient. (RR at 42.) Petitioner's defense was strategically based on the Petitioner's claim that the decedent had choked on a pastry, and that he had tried to resuscitate her. The defense expert, Dr. Schwartz, opined that the injuries to the decedent's neck had occurred when Petitioner attempted to remove the pastry from decedent's airway. (Resp't's Answer to Pet., Lodgm't No. 8, vol. 10 at 2291-2294, 2320.) In light of the record and facts in this case, defense counsel made a strategic choice to focus on this theory regarding the cause of the injuries, which aligned with Petitioner's account of the circumstances, and not on the methodology of the autopsy. Accordingly, Petitioner has not overcome "the presumption that, under the circumstances, the challenged action might be considered sound trial strategy." See Strickland, 466 at 689; Mancuso v. Olivarez, 292 F.3d 939, 954-55 (9th Cir. 2002). Under Strickland, there is a "strong presumption that counsel's conduct falls within a wide range of reasonable assistance." Strickland, 466 at 686-87. The Court must attempt to "reconstruct the circumstance's of counsel's challenged conduct, and to evaluate the conduct from counsel's perspective at the time." Id. at 689. With the benefit of hindsight, it is easy to identify something more that defense counsel might have done. However, this alone is not enough. See Campbell v. Wood, 18 F.3d 662, 673 (9th Cir. 1994) ("We will neither second-guess counsel's decisions nor apply fabled twenty-twenty vision of hindsight.") Accordingly, the Court FINDS that defense counsel's failure to challenge the methodology of the autopsy was well within the wide range of professional assistance demanded of criminal attorneys. See Strickland, 466 U.S. at 686-87.
4. Failure to adequately bolster defense expert testimony
Petitioner also contends trial counsel was ineffective in violation of his Sixth Amendment rights because counsel failed to adequately bolster defense expert testimony by presenting exculpatory medical articles. (Pet'r's Objs. at 29-30.) As the RR concluded, this claim is "essentially a mirror-image of [Petitioner's] claim that defense counsel failed to counter the testimony of the state's experts with medical articles." (RR at 44.) Petitioner objects to the RR's conclusion that defense counsel's performance was not ineffective, but offers no new arguments. (Pet'r's Objs. at 29-30.) For the following reasons, this Court DENIES Petitioner's claim.
As the RR concludes, Petitioner's claim fails under both prongs of Strickland for the same reasons as his claim that counsel did not adequately challenge the state's experts discussed in Section Two above. (RR at 44.) The defense elicited testimony from Dr. Schwartz about all parts of the state's case that Petitioner contended in his Petition were inaccurate. ( See Resp't's Answer to Pet., Lodgm't No. 8, Vol. 10 at 2291-2294, 2320, Vol. 11 at 2536-2538.) Moreover, Dr. Schwartz, himself, referred to the articles to support his opinions throughout his testimony. ( See id.) Defense counsel also presented two experts to support the defense theory that the pastry the decedent purportedly choked on had been fully digested in order to explain the lack of pastry remains found in the decedent stomach during the autopsy. ( See Resp't's Answer to Pet., Vol. 6 at 1172, Vol. 10 at 2189-91.) As the RR notes, while it is true that the articles would have supported the testimony the witnesses, it was not unreasonable for counsel to rely on two experts, one with two M.D.s and one with a PhD. (RR at 40.) Accordingly, defense counsel's failure to make greater use of medical texts and articles does not constitute a deficient performance. An ineffective assistance claim is not established simply by showing the trial counsel could have done something more. See Atkins v. Singletary, 965 F.2d 952, 960 (11th Cir. 1992) (stating "[a] lawyer can almost always do something more in every case. But the Constitution requires a good deal less than maximum performance"). Counsel did enough to satisfy Strickland's "strong presumption" of reasonableness.
Moreover, Petitioner was not prejudiced by any failure to support the testimony of witnesses with medical texts. As mentioned above, Dr. Schwartz already referred to relevant medical articles in his testimony to support his opinions, so it is unlikely that submitting more articles would have affected the outcome. In addition, it is not probable that a short excerpt from an article stating similar information that the two experts on digestion already said would have affected the outcome. Accordingly, Petitioner was not prejudiced by any failure to support the testimony of the expert witnesses.
Based on the above discussion, the state appellate court's denial of Petitioner's ineffective assistance of counsel claims was neither contrary to, nor an unreasonable application of, clearly established Supreme Court law. See Williams, 529 U.S. at 412-13. Accordingly, the Court ADOPTS the RR, and DENIES Petitioner relief as to all his ineffective assistance of counsel claims.
D. Juror Misconduct
Finally, Petitioner contends that the RR erred in finding the trial court was under no obligation to conduct a hearing to determine the nature of the juror coercion that was reflected in the notes of Juror Number 3. (Pet'r's Objs. at 30.) Petitioner claims he was denied his right to due process and a fair and impartial jury stemming from the trial court's failure to adequately investigate the misconduct of a juror who intimated and threatened another juror. (Pet'r's Pet. at 90-95.) For the below stated reasons, the Court DENIES Plaintiff's juror misconduct claim.
1. Underlying Facts
The following facts are taken from the California Court of Appeals opinion, the last reasoned state court decision to discuss the merits of the claim. See People v. Jacobs, No. D035406, slip op. (Cal.Ct.App. Sept. 4, 2001). This Court gives deference to state court findings of fact and presumes them to be correct. 28 U.S.C. § 2254(e)(1); see also Parke v. Raley, 506 U.S. 20, 35-36 (1992) (holding findings of historical fact, including inferences properly drawn from such facts, are entitled to statutory presumption of correctness).
On the second day of deliberations, the court received a juror note indicating that juror No. 6 had physically threatened juror No. 3. The court and counsel agreed not to do anything at that point in time and to excuse the jury for the rest of the day. As juror No. 3 left, he told the bailiff that he feared for his physical safety in the jury room.
The following morning (day three), juror No. 3 was questioned about the note. Juror No. 3 related that on the first day of deliberations juror No. 6 was reading the sports page of the newspaper and stopped when asked to by another juror. Juror No. 3 related that on the next day he wanted to take a vote to see where everyone was but juror No. 6 refused. Referring to juror No. 3, juror No. 6 said, "`get this stupid . . . this idiot out of my face.'" Juror No. 3 continued: "That's when he said if I don't get away from him that I would not be walking out of the room." After discussing various options with counsel, the court did not take any further action at that time, and the jury continued to deliberate.
Later that morning, the court received another note from juror No. 3 stating he would be unable to deliberate when he was in the jury room with juror No. 6, he feared for his safety and he wanted to be released. During further questioning, juror No. 3 said juror No. 6 had not threatened him that morning, but indicated that another juror had to step in between them on the previous day. As a result of that incident, juror No. 3 said he was afraid to say anything and feared juror No. 6 might attack him. After a discussion with counsel, the court brought juror No. 3 back into the courtroom and asked him to continue to deliberate. The court also told juror No. 3 that "if anything happens in the jury room that you want to bring to my attention after I put the jury back in there, write me another note and then tell me what your feelings are based on that."
The jury continued to deliberate for three more days without incident before returning its verdict.People v. Jacobs, No. D035406, slip op. (Cal.Ct.App. Sept. 4, 2001)
2. Discussion
Petitioner objects to the RR's conclusion that the trial court was not obligated to conduct a hearing to determine the nature of the juror coercion in this case. (Pet'r's Objs. At 30.) It is well established that "[t]he Sixth Amendment guarantees criminal defendants a fair trial, which assumes in a case tried to a jury `a jury capable and willing to decide the case solely on the evidence before it.'" Fields v. Woodford, 309 F.3d 1095, 1103 (9th Cir. 2002) (quoting McDonough Power Equipment, Inc. v. Greenwood, 464 U.S. 548, 554 (2002).
A trial court must "guard zealously the sanctity of the jury's right to operate as freely as possible." United States v. Remmer, 350 U.S. 377, 382 (1956). As such, it has long been the rule that, when faced with a colorable claim of juror misconduct, due process requires that the trial court conduct a reasonable investigation of the relevant circumstances in order to resolve any doubts about a juror's impartiality. See Smith, 455 at 217; Remmer, 350 U.S. at 382; Dyer v. Calderon, 151 F.3d 970, 975 (9th Cir. 1998); but see Tracey v. Palmateer, 341 F.3d 1037, 1044 n. 4 (9th Cir. 2003) (stating that it may not be necessary to question the jurors in every case and that due process is satisfied as long as the inquiry is "sufficient").
The appellate court's decision was neither contrary to, nor an unreasonable application of clearly established federal law. In denying Petitioner's juror misconduct claim, the state court of appeal cited People v. Burgener, 41 Cal. 3d 505, 516-20 (1986), the controlling California standard. In Burgener, the California Supreme Court held that "once the court is put on notice of the possibility a juror is subject to improper influences it is the court's duty to make whatever inquiry is reasonably necessary to determine if the juror should be discharged and failure to make this inquiry must be regarded as error." That standard from Burgener, applied by the appellate court in this case, is consistent with clearly established Supreme Court law. See Smith, 455 U.S. at 217; Remmer, 350 U.S. at 382; see also Dyer, 151 F.3d at 975. The court also correctly noted that it is within the trial court's discretion to determine the "mode of inquiry." ( Id. (citing People v. Keenan, 758 P.2d 1081, 1115 (Cal. 1988)).
The appellate court's conclusion that the trial court had not erred in its handling of the matter is a reasonable application of that law. See Williams, 529 U.S. at 412-13. The state trial court's investigation of the "relevant facts and circumstances" was reasonably calculated to resolve doubts about [juror] impartiality." Dyer, 151 F.3d at 975. After questioning juror No. 3 about the circumstances of the incident, the court found his fear was not objectively justified. (Pet'r's Pet., Lodgm't Vol. 1, Ex. D at 30.) Further, the trial court concluded that calling juror No. 6 in for questioning could be counter-productive. ( Id.) Accordingly, the trial court determined that juror No. 3 could continue deliberating impartially, and that the jurors would report any further problem.
As the RR notes, although the court could have inquired of juror No. 6, its decision not to was reasonable. The RR quotes Tracey to support its conclusion: "` Remmer and Smith do not stand for the proposition that any time evidence of a juror bias comes to light, due process requires the trial court to question [all of] the jurors alleged to have bias."' (RR at 51.) (citing Tracey v. Palmateer, 341 F.3d at 1044). Petitioner argues that the nature of the claim in this case "is qualitatively different than that in Tracey." (Pet'r's Objs. at 30.) While Petitioner's argument is accurate, it does not alter the fact that the state appellate court's conclusion that the trial court's inquiry was reasonable and sufficient was neither contrary to, nor an unreasonable application of Smith and Remmer, the controlling Supreme Court standard. See 28 U.S.C. § 2254(d). Accordingly, the Court ADOPTS the RR, and FINDS that Petitioner is not entitled to relief.
IV. Conclusion
For the forgoing reasons, the Court APPROVES AND ADOPTS the RR in its entirety, and DENIES with prejudice Petitioner relief as to all of his claims in his Petition.
IT IS SO ORDERED.