Opinion
No. C-96-3452-Pjh
October 26, 2001
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Before the court is a petition for a writ of habeas corpus filed by a state prisoner pursuant to 28 U.S.C. § 2254. The court ordered respondent to show cause why the writ should not be granted. Respondent has filed an answer and a memorandum of points and authorities in support of it, and has lodged portions of the record with the court. Petitioner has responded with a traverse. The matter is submitted and the court now rules as follows.
BACKGROUND
Petitioner Richard Craig Kesser and codefendants Stephen Duane Chiara and Jennifer Gayle Leahy were all convicted of the first degree murder of Kesser's former wife. As the Court of Appeal of California put it: "The prosecution theory was that Kesser, an angry and bitter ex-husband[,] plotted with Leahy, his fiancee, to hire Chiara, an acquaintance of Leahy's, to kill Kesser's former wife Mary in order to collect the proceeds of her insurance policy." Ex. E at 2. Petitioner's theory of defense was that although he was involved in a plan to hire Chiara, he thought the plan was to hire him to blow up his ex-wife's car, not to kill her. Id. at 9.
All "Ex." citations are to the record lodged by respondent at the request of the court.
An extensive summary of the evidence presented at trial can be found in the opinion of the Court of Appeal. Id. at 2-10. Where relevant, additional portions of the record are discussed below.
Petitioner was convicted by a jury of first degree murder with special circumstances. He was sentenced to prison for life without possibility of parole and is currently incarcerated in Pelican Bay State Prison. His conviction was affirmed by the Court of Appeal of California, Ex. E, and the Supreme Court of California denied review, Ex. G-1. As grounds for habeas relief he asserts the following:
• The prosecutor used peremptory challenges to discriminate against prospective
• Native American jurors, in violation of Batson v. Kentucky, 476 U.S. 79, 89 (1986), and the trial court failed to make a sincere and reasoned determination regarding the prosecution's rationale for the exclusions;
• Petitioner's rights to due process and an unbiased jury were violated when the trial court refused his motion for a change of venue;
• Petitioner's rights to due process and a fair trial were violated when the trial court refused his motion for severance;
• The Court of Appeal erred in finding the admission of extrajudicial statements were not prejudicial; Petitioner's rights to due process and a fair trial were violated when the trial court admitted "irrelevant gruesome pictures"; and
• Various jury instructions were given in error.
These will be addressed in turn.
The petition for a writ of habeas corpus, filed in pro per, did not contain a separate recitation of the issues, but rather incorporated by reference the petition for review filed in the California Supreme Court as a statement of "all [petitioner's] issues and grounds for relief." Those issues are listed above. Petitioner's traverse, prepared by counsel, addresses only the Batson, venue and severance issues. In response to this court's query, petitioner confirmed that he continues to press all issues referred to above.
DISCUSSION
A. Standard of ReviewThe petition in this case was filed after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA), so the provisions of that act apply to it. See Lindh v. Murphy, 521 U.S. 320, 327 (1997). Under the AEDPA a district court may not grant a petition challenging a state conviction or sentence on the basis of a claim that was reviewed 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).
A state court decision is "contrary to" Supreme Court authority, that is, falls under the first clause of § 2254(d), only if "the state court arrives at a conclusion opposite to that reached by [the Supreme] Court on a question of law or if the state court decides a case differently than [the Supreme] Court has on a set of materially indistinguishable facts." Williams (Terry) v. Taylor, 529 U.S. 362, 412-13 (2000). A state court decision is an "unreasonable application of' Supreme Court authority, or falls under the second clause of § 2254(d), if it correctly identifies the 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. The federal court on habeas review may not issue the writ "simply because that court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly." Id. at 411. Rather, the application must be "objectively unreasonable" to support granting the writ. See id at 410-11. The writ may be granted under the "unreasonable application of' clause only when the court's "independent review of the legal question does not merely allow [the court] ultimately to conclude that the petitioner has the better of two reasonable legal arguments, but rather leaves [the court] with a "firm conviction' that one answer, the one rejected by the [state] court, was correct and the other, the application of the federal law that the court adopted, was erroneous — in other words that clear error occurred." Van Tran v. Lindsey, 212 F.3d 1143, 1152-54 (9th Cir 2000).
As to state court findings of fact, this court may not grant a habeas petition by a state prisoner unless the adjudication of a claim on the merits by a state court:
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)(2).
The "clearly erroneous" standard of unreasonableness that applies in determining the "unreasonable application" of federal law under § 2254(d)(1) also applies in determining the "unreasonable determination of the facts in light of the evidence" under § 2254(d)(2). See Torres v. Prunty, 223 F.3d 1103, 1107-08 (9th Cir. 2000) (quoting Van Tran, 212 F.3d at 1153-54). To grant relief under § 2254(d)(2), a federal court must be "left with a firm conviction that the determination made by the state court was wrong and that the one [petitioner] urges was correct." Torres, 223 F.3d at 1108 (quoting Van Tran, 212 F.3d at 1153-54) (internal quotation marks omitted). This court must presume correct any factual determinations made by the state court unless the petitioner rebuts the presumption of correctness by clear and convincing evidence. See 28 U.S.C. § 2254 (e)(1).
B. Issues Presented
1. Batson Issue
a. Standard
The use of peremptory challenges by either the prosecution or defendant to exclude cognizable groups from a petit jury may violate the Equal Protection Clause. Georgia v. McCollum, 505 U.S. 42, 55-56 (1992); Batson v. Kentucky, 476 U.S. 79, 89 (1986). Batson sets up a three-step process for a trial court's ruling on objections to peremptory challenges which the defendant asserts are racially motivated. First, the defendant must make a prima facie showing that the prosecutor exercised peremptory challenges on the basis of race. Id. at 96-97. Second, if the requisite showing is made, the prosecutor must articulate a race-neutral explanation for striking the jurors in question. Id. at 97-98. Finally, the trial court must determine whether the defendant has carried his burden of proving purposeful discrimination. Id. at 98. In evaluating the purportedly 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).
A federal habeas court need not dwell on the first step of the Batson analysis when, as here, the matter has proceeded to the second or third step. "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; cf. Stubbs v. Gomez, 189 F.3d 1099, 1104 (9th Cir. 1999). "Whether the justification offered by a prosecutor is an adequate race-neutral explanation is a question of law." United States v. Bishop, 959 F.2d 820, 821 n. 1 (9th Cir. 1992). The findings of the trial court on the issue of discriminatory intent are findings of fact entitled to the presumption of correctness in federal habeas review. See Purkett v. Elem, 514 U.S. 765, 769 (1995).
b. Discussion
Petitioner argues three points in support of his Batson claim. First, he argues that the trial court erred at the second Batson step by failing to recognize that at least one of the reasons set forth by the prosecutor was not race-neutral. Traverse at 6. Second, he argues that the presence of even one non-neutral reason constitutes Batson error. Traverse at 6. Third, petitioner claims that even if there was no error at the second step, there was error at the third step because the prosecutor failed to rebut the prima facie case of racial bias. Traverse at 8.
Petitioner is partly right. The trial court did commit serious error in failing to recognize the bias inherent in one of the prosecutor's purportedly neutral reasons. However, the Court of Appeal recognized this error. Because its analysis of that error and its effect cannot be said to have resulted in a decision contrary to "clearly established Federal law," habeas relief is not warranted.
i. Prosecutor's failure to set forth race-neutral reasons
During voir dire defense counsel challenged the prosecutor's use of peremptory strikes. People v. Chiara et al,, No. A060502, slip op. at 17 (Cal.Ct.App. Dec. 12, 1995) (Pet. Ex. E). The trial court concluded that a cognizable group of Native Americans had been excluded, and asked the prosecutor to explain his reasons for striking them. Id. The Court of Appeal correctly concluded that the trial court's finding that a cognizable group had been excluded and its request that the reasons be explained was an implied finding that a prima facie case had been made. Id.; see Hernandez, 500 U.S. at 359 (once 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). Thus, there was no error by either the trial court or the Court of Appeal in moving to the second step.
The second step, in which the party exercising the peremptory challenges must come forward with a race neutral explanation for them, is more problematic. The three Native American jurors that petitioner claims were wrongfully challenged are named Rindels, Lawton and Smithfield. As will be seen, the prosecutor's explanation for his challenge of prospective juror Rindels raises serious concerns. The portions of the reporter's transcript relevant to the challenge of prospective juror Rindels are set forth below. In response to the trial court's request for an explanation of his challenges, the prosecutor stated:
Petitioner's traverse asserts that the prosecution improperly exercised peremptory strikes to exclude three prospective Native American jurors and a fourth non-Native American juror. However, the petition for review filed with the California Supreme Court (incorporated by reference into the petition for writ of habeas corpus) raised only the strikes of the prospective Native American jurors. Accordingly, petitioner has exhausted only as to those claims. See 28 U.S.C. § 2254 (b), (c); Rose v. Lundy, 455 U.S. 509, 515-16 (1982) (habeas petitioners must 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). Moreover, a habeas claim cannot be raised for the first time in a traverse. See Cacoperdo v. Demosthenes, 37 F.3d 504, 507 (9th Cir. 1994).
Because the challenges of Lawton and Smithfield do not necessarily raise these concerns, they will be discussed separately, following the conclusion of the Rindels discussion.
MR. DIKEMAN [prosecutor]: Well, if I might proceed with the Court's permission in my own fashion.
THE COURT: All right.
MR. DIKEMAN: I would like to explain a number of things about my use of the voir dire process and peremptory challenges. In selecting a jury or a juror, I'm essentially looking for five things. Number one, is this someone who can be fair to the People or do they come to this proceeding with some sort of bias against law enforcement or against the criminal justice system. Number two is it someone who can judge someone else and who is strong enough to make a decision and return a verdict of guilty. Number three, is this someone who will listen to me or is this someone who for some reason finds me offensive. I know that may be difficult for the Court to accept, but there's some people who don't immediately take a shine to me, and to whom I have kind of an abrasive personality. Number four, is this someone that the defense has been allowed to get their hooks into through the questioning or as I referred to once in this proceeding, the bonding between the potential juror and the defense attorney. And number five, is this one who is capable of getting along with the other eleven jurors.
There really is no rhyme or reason to the use of the peremptory challenge. These are general categories. Sometimes they will apply and sometimes they won't apply. The way this has proceeded, if I am fortunate to form any impression about these people, some of them I've seen three times. I saw them at the hardship, I saw them during the individual questioning by the Court, and then they came to court the other day and pretty much just sat there. The jury selection process has gone on since approximately the 7th of July. During the hardship I made notes on the questionnaire. When we got the long questionnaire I reviewed it and summarized it on a one piece legal pad page, and then noted additional observations or impressions during the course of voir dire and during the voir dire by other counsel. I don't believe I asked very many questions of any of the prospective jurors and I never really had a chance to interact with them in any fashion, and I gave grades to the jurors, from a high of A to the low of an F. Sometimes they were minuses, sometimes they were pluses, sometimes they went from numerical grade to a plus.
On those occasions when Inspector Jager was present he also graded the jurors and we then had the opportunity to confer and try and decide whether or not jurors we had on were or were not the kind of people that we were looking for in this particular panel.
As to the individuals that I excluded — and my notes would indicate that in the selection of the first twelve I exercised seventeen peremptory challenges and coincidentally the last was against a younger white male whose name happened to be Wheeler. And I don't know how that posed.
I would like to go through each one of them and explain to the Court the grade that I gave them, the notes that are on my juror cards, the reasons, if I'm able to present them to the Court, why I excluded these people, because don't think you can simply look and say you excluded these four, tell us why. I think that the Court should have something to balance that against and that's the reasons I exercised any of these peremptory challenges, and then the Court can determine whether or not the grades that I gave these people fell within the range of grades that I gave the other people that I excluded from the panel. And if that's permissible, I'm prepared to do that, and then specifically I can address these four and perhaps go into a little more detail about why it was I kicked those people out.
THE COURT: Well, let's talk about the four first. If I think I need something more I'll certainly allow you to go through all of them, but why don't we start with Rindels first.
MR. DIKEMAN: Miss Rindels was the one darker skinned female from the regular panel or the group of seventeen that I challenged. My notes indicate that she was my second peremptory challenge. My first was exercised against and [sic] older white male. Miss Rindels my notes indicate — the grade I gave her was a C. She was a younger, middle-aged native American female, Trinidad eight years, Humboldt County twentyfive years. She came to the July 29th hardship. She claimed a hardship because she was in the process of completing an application for HUD funding, which was very important I guess to her, and she was the office manager for an indian tribe and had been for twelve years. Married fourteen years. Her husband was a foreman for a roofing company, two kids, eighteen and twelve. Her sister worked for Bill Bertain. Her younger sister had been divorced, it was a particularly messy divorce. Someone had been involved with the criminal justice system. That person turned out to be her older daughter. The suspect in that case was her actual father who did a very short period of time apparently in custody. I note that she was a little chubby. I have a note here that says "perm." I don't know what that means. Still a bit emotional and misty. She teared up when she talked about the experience involving her daughter and her father, and she was in Washington for a vacation for a couple of months in late 1991 and had no — no recollection of anything here. She works for the tribe, and when we talk about native Americans in Humboldt County, we're talking essentially about two tribes or separate nations, the Hupa and Yurok.
My experience is that native Americans who are employed by the tribe are a little more prone to associate themselves with the culture and beliefs of the tribe than they are with the mainstream system, and my experience is that they are sometimes resistive of the criminal justice system generally and somewhat suspicious of the system.
She was pretentious in my mind and self-important with the thought that only she could complete the necessary paperwork which would get the grant. She was emotional about the system as I indicated before. Her daughter had been molested by her father, and for that reason I'm assuming that the living situation was indicative of something of a dysfunctional family. I viewed her as somewhat unstable, fairly weak, and somebody who I thought would be easily swayed by the defense.
THE COURT: Okay. Next?
Ex. H, Vols. 13-14 at 3374-79.
The prosecutor then discussed his challenge to the other jurors to whose exclusion a Batson challenge had been made (discussed below). Id. at 3379-83. The court then called upon defense counsel:
MR. BRAGG [counsel for defendant Kesser]: Your Honor,
I believe that the expressed concern that Mr. Dikeman had, particularly Miss Rindels, is a classic example of what the Court — in fact would be used by the appellate courts as a basis for exclusion, because it's a presumption of a group bias based on a stereotype membership in a racial group, and I think that —
THE COURT: I don't believe that's what it said.
MR. BRAGG: That's what I heard. Native Americans that work for tribes, and feel alienated and are not willing to accept the — what is perceived to be the wide judicial system and the ethics and the legal requirements that are imposed on them by that system. This is a stereotype that is placed upon that lady because she happens to be an indian and a member of the tribe. That's exactly what it says as far as — that's what I heard him say, and I think that would be pegged by the appellate courts as being exactly the type of impermissible stereotyping that makes that type of peremptory unconstitutional.
MR. DIKEMAN: I would —
THE COURT: Wait a minute, I want to hear from defense counsel first.
MR. DIKEMAN: If I could say one thing on that aspect, in this county we've had Dr. Roy Alsop come in here and explain to the courts and I've seen this on the criminal calendar, child molesting is okay in certain native American cultures, and we can't treat native American child molesters the same way we treat other child molesters, and have to treat them through the indian culture center and there are a whole bunch of people that violate our laws that are native Americans and they go much more often through the native American system than the criminal system, and to say that does not exist is frankly incorrect. Dr. Alsop went to San Francisco and testified in the Troy case which resulted in the acquittal on a charge of murder, because there was some sort of racial bias that lasted for a long time in Siskiyou County and accounted for the killing of a police officer.
MR. BRAGG: The fact there may be some cultural — unique cultural aspects to a person's background is not a basis for exclusion. Assuming everything that he has said is correct, that still wouldn't be a basis for exclusion of a native American indian, even of a child molest case, because the defendants have the constitutional right to the cross-section of the community and that's the constitutional right involved. You can't exclude a person because of their cultural background, and Roy Alsop is not here, he's not qualified as an expert to talk about indian culture or the particular perspectives in life. It's not a child molest case. I know Roy Alsop has been quoted on record as saying he can touch a pregnant indian stomach and womb and determine whether there's a problem in there psychically, so this particular gentleman has been cited as an expert, certainly would be viewed by many people in the mainstream as having some problems with his particular approach, and it's not necessarily reflective of the American indian culture or beliefs.
MR. SANDERS [counsel for defendant Leahy]: I think simply the district attorney's comments having to do with Miss Rindels is just established the group bias that he has, statements concerning his belief in Mr. Alsop's testimony which appears to be highly incredible, and reinforces the fact he does have a group bias, and I would be joining in Mr. Bragg's comments and his points and authorities.
MR. PARSONS [counsel for defendant Chiara]: I don't think Mr. Bragg completed his comments and when he does —
THE COURT: I thought — I'm sorry, Mr. Bragg, is there anything else?
MR. BRAGG: I'm done.
MR. PARSONS: I would be joining in Mr. Bragg's comments as well and Mr. Sanders.
MR. BRAGG: Well, I've gone through everything that Mr. Dikeman has indicated with regard to the other jurors. It had very little to do with the five criteria he listed initially. Bias against the people as I pointed out in my points and authorities, when you look at the qualifications and these particular people, three out of four very very strong law enforcement connections. They can hardly be viewed as defendants' jurors, in fact I think they would be biased for the People, if anything — biased in favor of the People.
His comments with regard to everything else that he really is claiming as a basis for excusing these people has nothing to do with the five criteria that he offered.
THE COURT: All right. The Court finds there is sufficient justification to support the peremptory challenges. With regard to Miss Rindels, my understanding of what Mr. Dikeman said is that — one of them is at least that she worked for the tribe, not because she was one of the tribe, but she worked for the tribe. That's entirely different, other than the fact if she's indian, if she is. I gather that she is.
Ex. H, Vols. 13-14 at 3384-87.
Thus, the trial court concluded that the prosecutor's reasons for striking prospective juror Rindels were race-neutral. Like the Court of Appeal, this court agrees that four of those reasons clearly were: (1) she was "pretentious in my mind and self-important;" (2) she was emotional about the system as a result of her daughter's involvement in a family child molestation case; (3) her indication that her daughter had been molested by her father suggested "something of a dysfunctional family;" and (4) the prosecutor "viewed her as somewhat unstable, fairly weak, and somebody who I thought would be easily swayed by the defense." Ex. H, Vols. 13-14 at 3378.
At this second step of the Batson analysis the explanation need not be "plausible," and may even be "silly or superstitious;" it only must not be based upon race. Purkett, 514 U.S. at 768.
The question is whether a fifth reason the prosecutor identified for striking prospective juror Rindels is also race-neutral. Specifically, the prosecutor said:
My experience is that native Americans who are employed by the tribe are a little more prone to associate themselves with the culture and beliefs of the tribe than they are with the mainstream system, and my experience is that they are sometimes resistive of the criminal justice system generally and somewhat suspicious of the system.
Ex. H, Vols. 13-14 at 3378.
Counsel for petitioner argued that his interpretation of this statement — that Native Americans "are not willing to accept . . . what is perceived to be the wide judicial system and ethics and the legal requirements that are imposed on them by that system" — was "exactly the type of impermissible stereotyping that makes that type of peremptory unconstitutional." Ex. H, Vols. 13-14 at 3384. The prosecutor interrupted petitioner's counsel, asking to "just say one thing on that aspect," and then proceeded to confirm the accuracy of petitioner's interpretation. After claiming that he had heard expert testimony in other cases to the effect that "native American child molesters" should not be treated like other child molesters, the prosecutor stated:
[T]here are a whole bunch of people that violate our laws that are native Americans and they go much more often through the native American system than the criminal system, and to say that does not exist is frankly incorrect.
Ex. H, Vols. 13-14 at 3385.
"A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror." Hernandez, 500 U.S. at 360. Clearly, this explanation does not satisfy that test. The prosecutor's reason applied only to Native Americans ("native Americans who are employed by the tribe. . . .), and depended on a cultural/racial stereotype. It cannot be said that this was a race-neutral reason for the strike.
This might have been a closer issue if only employment with the tribe were at issue, because nothing in the record establishes that only Native Americans are employed by the tribe. The stereotype of Native Americans as "resistive of the criminal justice system generally and somewhat suspicious of the system" would still be a concern. But the prosecutor's limitation of his suspicions to Native Americans who are employed by the tribe allows no other conclusion than that the challenge was based on race. See Stubbs, 189 F.3d at 1106 ("a "generic reason [or] group-based presumption applicable in all criminal trials' to members of a minority is not race-neutral." (quoting Bishop, 959 F.2d at 825).
Thus, the trial court erred in this regard. However, the Court of Appeal did not. Indeed, it recognized that the employment reason was not race-neutral, noting that petitioner was justified in arguing that "the underlying assumption that Native Americans as a group are "anti-establishment' is itself based on racial stereotype." Ex. E at 19. Thus according to the Court of Appeal's review of the record, the prosecutor identified four race-neutral reasons, and one non-race neutral reason for challenging prospective juror Rindels.
ii. Does the presence of a non-race neutral reason compel a finding of Baston error?
Petitioner argues that the presence of a single non-race neutral reason renders other race-neutral reasons irrelevant. In support, petitioner states:
[T]o paraphrase the Supreme Court in Hernandez, as quoted in Purkett, "Because a discriminatory intent is inherent in the prosecutor's explanation, the other reasons offered will not be deemed race-neutral." (Hernandez, 500 U.S. at p. 360, Purkett, 514 U.S. at p. 768.)
Traverse at 6.
Unfortunately, the Supreme Court never made the statement set in quotation marks in either the Hernandez or Purkett opinions. Petitioner, obviously aware of this, uses the word "paraphrase" to describe his rendition of those opinions. But petitioner hasn't "paraphrased" anything other than a version of the law favorable to his case but not found in any Supreme Court authority.
The Supreme Court has yet to address the question of whether the existence of a single discriminatory reason for a challenge results in an automatic Batson violation despite the existence of other race-neutral reasons. Decisions from various circuits establish that the answer is anything but clear. In particular, circuits that have adopted the "dual motivation" analysis recognize that "A person may act for more than one reason" and that when a prosecutor offers both legitimate and illegitimate reasons for a strike, further analysis is required. Howard v. Senkowski, 986 F.2d 24, 26 (2d Cir. 1993).
Several circuits have adopted a dual motivation analysis for Batson claims. See, e.g., Weaver v. Bowersox, 241 F.3d 1024, 1032 (8th Cir. 2001); Wallace v. Morrison, 87 F.3d 1271, 1274-75 (11th Cir. 1996); Jones v. Plaster, 57 F.3d 417, 421 (4th Cir. 1995); Howard v. Senkowski, 986 F.2d 24, 26-30 (2d Cir. 1993). In dual motivation analysis, if the trial court finds that the proponent of the strike has articulated both racially-based and race-neutral reasons for the strike (i.e., dual motivation), the proponent then may attempt to show that the strike would have been exercised even in the absence of any discriminatory motivation. Wallace, 87 F.3d at 1274-75; Weaver, 241 F.3d at 1032; Howard, 986 F.2d at 30. A trial court's ruling that a strike was not improper can be an implied finding that the proponent of the strike has carried his or her burden under this standard. Wallace, 87 F.3d at 1275; Weaver, 241 F.3d at 1032.
Applying dual motivation analysis to Batson challenges may seem inappropriate based upon the Supreme Court's holding in Batson itself, which was: "[T]he Equal Protection Clause forbids the prosecutor to challenge potential jurors solely on account of their race. . .." Batson, 476 U.S. at 89 (emphasis added). The argument that a Batson violation occurs only when the motivation for the strike was "solely" race has been justly criticized, however. See Howard, 986 F.2d at 27-30. In this case, application of a "solely" standard would result in failure of the Baston claim, because it is clear the state courts found that the Rindels strike was not motivated solely by a discriminatory motive, and that finding is not unreasonable.
The Court of Appeal, relying on Ninth Circuit authority, explicitly rejected petitioner's argument that the presence of a single discriminatory reason ends the court's inquiry:
Defendants' citation of U.S. v. Bishop, supra, 959 F.2d 820, for the proposition that once a single improper reason for a peremptory challenge appears, the appellate court must halt its inquiry and reverse, is a blatant distortion of the holding in that case. On the contrary, after determining that the prosecutor used a race-based justification as to one of the jurors, the Ninth Circuit in Bishop in fact went on to consider the prosecutor's other asserted reasons. Because the prosecutor left on the jury other panel members who possessed the allegedly objectionable characteristics, the court determined that those other reasons were makeweights and that the prosecutor had not met his burden of articulating a race-neutral explanation.
(Id. at p. 827).
Ex. E at 19. That is, the Court of Appeal's reading of Bishop was that when both race-based and racially-neutral reasons for a strike are given at the second Batson step, the court should not stop its analysis because a race-based reason has been given, but should go on to consider the race-neutral reasons.
After finding an impermissible motivation, the Ninth Circuit in Bishop did, as the Court of Appeal states, go on to address the considerations other than race articulated by the prosecutor. Bishop, 959 F.2d at 827. However, rather than just noting the presence of the neutral reasons, it appears the court considered whether the racially-neutral reasons were "persuasive" at the second step. Id. Bishop was decided before the United States Supreme Court decision in Purkett v. Elem, in which the Court warned against "combining Batson's second and third steps into one, requiring that the justification tendered at the second step be not just neutral but also at least minimally persuasive . . . ." Purkett, 514 U.S. at 768. Regardless, the fact remains that in the face of an impermissible reason, the Bishop court still considered the prosecutor's additional neutral reasons.
As noted previously, the adequacy of a race-neutral explanation "is a question of law." Bishop, 959 F.2d at 821 n1. To succeed petitioner must show that the state court decision "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 28 U.S.C. § 2254(d). The decision of the Court of Appeal that the second step of the Batson analysis can be met by articulating both race-based and race-neutral reasons for a strike, is not contrary to or an unreasonable application of, United States Supreme Court precedent. That is, there is no United States Supreme Court authority holding that articulation of one race-based reason for a strike, along with several race-neutral reasons, requires reversal at the second Baston step.
iii. Analysis of Bias
Finally, petitioner argues that the facially neutral reasons give by the prosecutor were merely pretextual for his real purpose of racial bias. In the third Batson step the trial court must determine whether the opponent of the strike has carried his or her burden of proving "purposeful discrimination." Batson, 476 U.S. at 98.
As an initial matter, there is the question of exactly what is required to establish purposeful discrimination. As will be seen, the California Court of Appeal looked at whether racial bias was the "predominant" or "primary" reason motivating the challenge. As noted above, a number of circuits have adopted a dual motivation analysis in situations where a prosecutor identifies both legitimate and illegitimate reasons for a strike. As explained by the Second Circuit, dual motivation analysis supplements traditional stage three Batson analysis in that once the claimant shows discriminatory motivation, "the accused party has an opportunity to show that there were really two motives and that a permissible motive would have led to the challenged action." Howard, 986 F.2d at 27. The Ninth Circuit has not adopted dual motivation analysis. Johnson v. Lasquez, 3 F.3d 1327, 1329 n2 (9th Cir. 1993) ("We express no opinion on the issue of whether a mixed-motive defense in Batson jury challenge cases is a valid one."). Thus, in a case where the Ninth Circuit was presented with facially neutral reasons but contextual explanations that gave "strong indications" that a challenge was in fact racially based, the court held that "the burden remains with [the claimant] to show that these . . . reasons were pretextual and that the true reason for the challenge was racial." Id. at 1330 n4; see also United States v. Alcantar, 897 F.2d 436, 440 (9th Cir. 1990) ("Where both legitimate and illegitimate reasons are offered by the prosecution, the need for a meaningful adversary hearing to discover the true motivation behind the challenges is especially strong."); United States v. Thompson, 827 F.2d 1254, 1260 (9th Cir. 1987) (court notes that prosecutor, in camera, revealed both neutral and illegitimate reasons and that because defendant was unable to challenge, prosecutor had no chance to "dispel the inference that she acted from improper motives."). While the meaning of "true reason," "true motivation" or "acting from improper motives" is not entirely clear, in light of this precedent (and without contrary Supreme Court authority), it cannot be said that an interpretation which requires the wrong reason to be the "primary" or "predominant" reason is contrary to clearly established Federal law.
The state court findings on the issue of discriminatory intent are findings of fact entitled to the presumption of correctness in federal habeas review. See Purkett, 514 U.S. at 769. This court may grant the writ only if it concludes that the state court's adjudication of the claim 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."' Torres v. Prunty, 223 F.3d 1103, 1107 (9th Cir. 2000) (quoting 28 U.S.C. § 2254 (d)(2) and Williams, 529 U.S. at 412-13). To grant relief under § 2254(d)(2), a federal court must be "left with a firm conviction that the determination made by the state court was wrong and that the one [petitioner] urges was correct." id. at 1108 (quoting Van Tran, 212 F.3d at 1153-54) (internal quotation marks omitted). The presumption of correctness accorded to state courts' factual findings adheres to appellate as well as trial court determinations of fact. See Cabana v. Bullock, 474 U.S. 376, 387 n. 4 (1986); Sumner v. Mata, 455 U.S. 591, 597 (1982); Hayes v. Kincheloe, 784 F.2d 1434, 1437 (9th Cir. 1986). To rebut this presumption, petitioner must show error by clear and convincing evidence. See 28 U.S.C. § 2254(e)(1).
The Sumner opinion commented on the application of the presumption of correctness to state appellate court findings at some length, and in a manner relevant to this case:
Section 2254(d) applies to a case in which a state court of competent jurisdiction has made "a determination on the merits of a factual issue." It makes no distinction between the factual determinations of a state trial court and those of a state appellate court. Nor does it specify any procedural requirements that must be satisfied for there to be a "hearing on the merits of a factual issue," other than that the habeas applicant and the State or its agent be parties to the state proceeding and that the state-court determination be evidenced by "a written finding, written opinion, or other reliable and adequate written indicia."
Sumner, 449 U.S. at 546-47.
The trial court found "sufficient justification to support the peremptory challenges. With regard to Miss Rindels, my understanding of what Mr. Dikeman said is that — one of them is at least that she worked for the tribe, not because she was one of the tribe, but she worked for the tribe. That's entirely different, other than the fact if she's indian, if she is. I gather that she is." Ex. H, Vols. 13-14 at 3387. As noted above, this was error. The prosecutor's point was not that she "worked for the tribe," but that he had exercised the strike (in part) because she was a "native American" who worked for the tribe. Given this error, petitioner has rebutted the presumption of correctness as to this finding by clear and convincing evidence — that of the transcript itself.
This does not end the matter, however, because the Court of Appeal, which did recognize the discriminatory reason set forth by the prosecutor, also performed an analysis of the prosecutor's ultimate motivation in making the strike. The court stated that if the improper ground were "the only or primary reason given by the prosecutor, we would have some cause for concern. However, the prosecutor gave many more reasons for his evaluation of Mrs. Rindels as a poor juror other than the statement cited." Ex. E at 19. The court then cited the race-neutral reasons set out above, and stated that it is constitutionally permissible to challenge a juror on such grounds. Id. Based upon this review of the record, the court said "the trial court could reasonably have found, based on several race-neutral explanations, that the prosecutor's "predominant motive' in excluding juror Rindels was not ethnic or racial bias." Id. at 20.
More importantly, the Court of Appeal itself found that race was not the "primary reason given by the prosecutor." Id. at 19. This finding is a Batson third-step finding that the prosecutor was not motivated by discriminatory intent and was not an "unreasonable determination of the facts in light of the evidence presented in the State court proceeding," given the numerous race-neutral reasons for the strike provided by the prosecutor.
As noted above, the Court of Appeal recognized four other reasons offered by the prosecutor for the Rindels challenge: (1) she was "pretentious in my mind and self-important;" (2) she was emotional about the system as a result of her daughter's involvement in a family child molestation case; (3) her indication that her daughter had been molested by her father suggested "something of a dysfunctional family;" and (4) the prosecutor "viewed her as somewhat unstable, fairly weak, and somebody who I thought would be easily swayed by the defense." Ex. H, Vols. 13-14 at 3378; Ex. E at 19.
The prosecutor's impression that Rindels was "pretentious" and "self-important" was based upon her representation that as part of her job, she was "completing an application for HUD funding" and that she "thought that only she could complete the necessary paperwork." Ex. H, Vols. 13-14 at 3378. Indeed, Ms. Rindels stated on her juror questionnaire that she was the "only qualified individual" able to complete the paperwork. Bragg Decl., Ex. A. Petitioner argues that the paperwork was due July 31, 1992, and thus was not a valid issue when Ms. Rindels was excluded on September 8, 1992. Traverse at But the prosecutor was not pointing to the existence of the paperwork, but rather his impression of Ms. Rindels from her remarks concerning the paperwork.
The prosecutor noted that Ms. Rindels was emotional about the legal system and came from a dysfunctional family because her daughter had been molested by a family member. Ex. H, Vols. 9-10 at 2245-46. The prosecutor's belief that Ms. Rindels was emotional was supported by the fact that she "became tearful" while talking about the molestation. Finally, the prosecutor stated his opinion that Ms. Rindels might be easily swayed by the defense.
The Court of Appeal found that these reasons "are based upon individual predilections supported by the record." Ex. E at 20. This court's review of the record confirms that.
Petitioner responds by pointing to other jurors who purportedly suffered from the same defects yet were not challenged by the prosecutor. Traverse at 17-18. Thus, petitioner cites to answers provided on other jurors' questionnaires which are purportedly equivalent to Ms. Rindels' "only qualified individual" comment. Traverse at 17. Unfortunately, the record does not necessarily support petitioner. For instance, while it is true that juror Dutra stated he had "twenty men working for" him, he gave this answer in describing his job, and was not using it to justify a hardship exception (like Ms. Rindels). Bragg Decl., Ex. H. Juror Scheutzle did say that she was the only person handling specific jobs, she added the qualification that she "didn't know if that is considered a problem in the eyes of the courts" and explained that her "biggest problem" was her responsibility as a single parent. Bragg Decl., Ex. L.
Petitioner similarly points to two jurors whose answers indicate (according to petitioner) that they have dysfunctional families or may be swayed by the defense.
Moreover, even if petitioner's claims had more support in the record, he would not necessarily prevail.
Batson is [not] violated whenever prospective jurors of different races provide similar responses and one is excused while the other is not. . . . counsel is entitled to take account of the characteristics of the other prospective jurors against whom peremptories might be exercised; to reevaluate the mix of jurors and the weight he gives to various characteristics as he begins to exhaust his peremptories; and to take into account tone, demeanor, facial expression, emphasis — all those factors that can make the words uttered by the prospective juror convincing or not.
Burks v. Borg, 27 F.3d 1424, 1429 (9th Cir. 1994). Here the Court of Appeal noted that reasons grounded in individual bias rather than group bias are permissible, and that the neutral reasons fell within that category: "None of them constitutes a sham excuse or can be construed as an effort to disguise group bias." Ex. E at 19-20.
In sum, petitioner has not rebutted the presumption of correctness afforded the state court findings of fact as to the decisive issue of discriminatory intent, and has not established that the finding is "based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Torres, 223 F.3d at 1107.
iv. Jurors Lawton and Smithfield
The court has also considered petitioner's Batson challenges to prospective jurors Smithfield and Lawton, both of whom are also Native American. Unlike the situation with Rindels, as to these two prospective jurors the prosecutor presented only race-neutral explanations at the second Batson step.
The prosecutor gave prospective juror Lawton a grade of C- based upon her answers to questioning by the court and defense counsel. Ex. H, Vols. 13-14 at 3379. He noted that her husband had been divorced and ordered by the court to pay child support. Id. She had indicated that she had followed a high-profile trial in which petitioner's counsel had secured an acquittal and favorable media coverage. Id. at 3380. He noted that winter was approaching and that Lawton's commute would involve a road that was sometimes closed. Id. He indicated that this might cause an interruption in trial and that he preferred to avoid that. Id. He concluded by stating his impression that she was not "overly educated" and "weak" and noted that she had announced she would have difficulty speaking out loud if her verdict was read and that the possibility would affect her ability to render a decision. Id. at 3381.
The prosecutor gave prospective juror Smithfield a grade of C for her answers. Id. at 3382. He noted that she claimed hardship, was the sole support for her family, and was concerned about any absence from her job as a teacher. Id. She had an uncle who had been arrested for drunk driving and her husband was a recovering alcoholic. Id. at 3383. The prosecutor commented on the fact that the court had been asking questions about alcoholics which, in his mind, left the jury with an impression that recovered alcoholics or addicts (like petitioner and defendant Leahy in this case) were "somehow . . . more believable than others." Id. He noted that in addition to claiming hardship like other jurors, Smithfield had taken the additional step of writing the court a letter reemphasizing "how important she thought her position was and how important she thought it was that she be there." Id.
The Court of Appeal found the fact that prospective juror Smithfield's husband was a recovering alcoholic was "a powerful reason, and one which alone justifies the exercise of a peremptory challenge against Smithfield." Ex. E at 20. The court found the reasons offered against prospective juror Lawton to be "solid" and relevant to this particular case. Id. at 21.
As he did regarding Ms. Rindels, petitioner claims that other jurors had similar characteristics and were not challenged. Traverse at 18-20. However, this showing is not particularly strong. Moreover, in light of the discussion above, it is not enough to rebut the presumption of correctness afforded the state court findings of fact as to the decisive issue of discriminatory intent. Petitioner's Batson claim concerning all three jurors fails.
2. Change of venue
a. standard
The Due Process Clause of the Fourteenth Amendment safeguards the Sixth Amendment right of a criminal defendant facing trial by jury to "a panel of impartial, "indifferent' jurors." Irvin v. Dowd, 366 U.S. 717, 722 (1961). Accordingly, a trial judge must grant a motion for a change of venue if prejudicial pretrial publicity makes it impossible to seat an impartial jury. Gallego v. McDaniel, 124 F.3d 1065, 1070 (9th Cir. 1997). A defendant must demonstrate one of two different types of prejudice in support of a motion to transfer venue: presumed or actual. Id. This distinction is clearly established Supreme Court law for purposes of application of the standard of review under the AEDPA. Nevers v. Killinger, 169 F.3d 352, 362 (6th Cir. 1999) (citing Murphy v. Florida, 421 U.S. 794, 798 (1975), and Dobbert v. Florida, 432 U.S. 282, 303 (1977)), overruling on other grounds recognized by Harris v. Stovall, 212 F.3d 940, 942 (6th Cir. 2000).
Prejudice is presumed when the record demonstrates that the community where the trial was held was "saturated" with prejudicial and inflammatory media publicity about the crime. Id. The publicity must be so pervasive and inflammatory that the jurors cannot be believed when they assert that they can be impartial. United States v. Croft, 124 F.3d 1109, 1115 (9th Cir. 1997). Prejudice is rarely presumed because "saturation" defines conditions found only in extreme situations. Gallego, 124 F.3d at 1070; Croft, 124 F.3d at 1115; see, e.g., Fetterly v. Paskett, 163 F.3d 1144, 1148 (9th Cir. 1998) (no presumed prejudice where pretrial publicity was comprehensive, but mostly focused on facts of the case rather than on inflammatory material that could not be admitted in evidence, and there was no evidence in voir dire transcript indicating that jurors recalled the case or its facts, or had inflamed passions or hostility toward it); Gallego, 124 F.3d at 1070-71 (finding no presumed prejudice where majority of news stories were well-balanced, factual accounts of pretrial events); Croft, 1124 F.3d at 1115 (finding no presumed prejudice where most recent news stories were factual and not inflammatory). Among the factors to be considered in determining whether prejudice will be presumed are: (1) whether there was a "barrage of inflammatory publicity immediately prior to trial amounting to a hugewave of public passion;" (2) whether media accounts were primarily factual; and (3) whether media accounts contained inflammatory, prejudicial information that was not admissible at trial. Ainsworth v. Calderon, 138 F.3d 787, 795 (9th Cir. 1998), amended, 152 F.3d 1223 (9th Cir. 1998).
To establish actual prejudice, the defendant must demonstrate that the jurors exhibited actual partiality or hostility that could not be laid aside. See Gallego, 124 F.3d at 1070. The focus must be on the jurors who were actually seated on the petit jury and it is not enough that some of them had some prior knowledge of the case. Id. at 1071-72 (only publicity that operates to deprive defendant of a fair trial may cause prejudice).
A state trial court's finding of juror impartiality is presumed to be correct on federal habeas review. See Ainsworth, 138 F.3d at 796. The standard of review for this issue is therefore the same as for the Batson issue: The Court must presume correct any factual determinations made by the state courts unless the petitioner rebuts the presumption of correctness by clear and convincing evidence, 28 U.S.C. § 2254 (e)(1), and may not grant the writ unless it concludes that the state court decision "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." See 28 U.S.C. § 2254 (d).
b. Discussion
Defendants moved for a change of venue on pretrial publicity grounds before voir dire, and renewed the motion after a jury and alternates had been selected. Ex. A at 1143; Ex. H at 3256. Both motions were denied. Ex. A at 1198-99; Ex. H. at 3417. The Court of Appeal rejected this issue on direct appeal . . . Ex. E at 10-14.
In ruling on this issue, the Court of Appeal stated:
Prior to trial, defendants brought a motion for change of venue on grounds that pretrial publicity and strong community sentiment prejudiced potential jurors against them. In support of the motion defendants presented a pretrial publicity survey which showed that:
• 78 percent of the jury pool had heard about the case.
• 49.1 percent thought defendants were definitely or probably guilty.
• There were 31 newspaper articles on the case from November 1991 to March 1992.
• At least 19 television and many more radio stories aired.
Defendants also presented the expert testimony of Dr. Edward J. Bronson, Professor of Public Law at Chico State University, who stated that there was a reasonable likelihood that defendants could not get a fair trial in Humboldt County. He based his opinion on a number of factors including sympathy for the victim, the extent and nature of the media coverage, the description of Chiara as a "transient," and the high recognition factor the case had among the local population. The court denied the motion, and defendants cite this ruling as error.
Ex.E at 10.
The Court of Appeal applied state law to determine whether venue should have been transferred. Id. 10-14. Although the federal basis for the claim that a change of venue should have been granted was raised before the California Court of Appeal by Petitioner (see e.g., Ex. B (petitioner's opening brief) at 37), the opinion contains no discussion of the federal constitutional claim. The state court's affirmance was a denial of all his claims, including the federal change of venue claim. See Grubb v. Public Utilities Comm'n, 281 U.S. 470, 477-78 (1930) (questions properly raised in appellant's brief necessarily resolved against him by affirmance); Lurie v. State of California, 633 F.2d 786, 789 (9th Cir. 1980) (citing Grub). Although when there is no state court rationale the federal court cannot analyze the basis for the decision, it can still apply the "objectively reasonable" standard required by Williams. Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). When confronted with such a decision, a federal court must conduct "an independent review of the record" to determine whether the state court "clearly erred" under controlling federal law. Id.
The court has reviewed the motion for change of venue, Ex. A at 1143, and the evidence submitted in support of it and in opposition to it, Ex. H at 268-548; Ex. I. Although there was substantial publicity, it did not amount to the saturation with prejudicial and inflammatory publicity which gives rise to presumed prejudice. See Gallego, 124 F.3d at 1070 (standard). To establish presumed prejudice the publicity must be so pervasive and inflammatory that the jurors cannot be believed when they assert that they can be impartial. Croft, 124 F.3d at 1115. Prejudice is rarely presumed because "saturation" defines conditions found only in extreme situations. Gallego, 124 F.3d at 1070. The news stories and poll results here did not rise to this level.
To establish actual prejudice, petitioner must demonstrate that the jurors exhibited actual partiality or hostility that could not be laid aside. See Gallego, 124 F.3d at 1070. The jurors who were chosen either had no exposure to publicity or had little recall of the crime. Ex. Eat 14 n. 10. Petitioner failed to establish actual prejudice.
The state court's rejection of this claim was not clear error. See Van Tran, 212 F.3d at 1152-54 ("clear error" standard).
3. Severance
a. Standard
A denial of severance of co-defendants may prejudice a defendant sufficiently to render his trial fundamentally unfair in violation of due process. See Grisby v. Blodgett, 130 F.3d 365, 370 (9th Cir. 1997).
i. Due Process
A federal court reviewing a state conviction under 28 U.S.C. § 2254 is not concerned with state law governing severance or joinder in state trials. Grisby, 130 F.3d at 370. Nor is it concerned with procedural rights to severance afforded in federal trials. Id. Its inquiry is limited to the petitioner's right to a fair trial under the United States Constitution. To prevail, therefore, the petitioner must demonstrate that the state court's joinder or denial of his severance motion resulted in prejudice great enough to render his trial fundamentally unfair. Id. "This prejudice is shown if the impermissible joinder had a substantial and injurious effect or influence in determining the jury's verdict." Sandoval v. Calderon, 241 F.3d 765, 772 (9th Cir. 2000).
"[T]he risk of undue prejudice is particularly great whenever joinder of counts allows evidence of other crimes to be introduced in a trial where the evidence would otherwise be inadmissible." Id. This risk is especially great when the prosecutor encourages the jury to consider the two sets of charges in concert, e.g., as reflecting a modus operandi even though the evidence is not cross admissible, and when the evidence of one crime is substantially weaker than the evidence of the other crime. See Bean v. Calderon, 163 F.3d 1073, 1084-85 (9th Cir. 1998). But joinder generally does not result in prejudice if the evidence of each crime is simple and distinct (even if the evidence is not cross admissible), and the jury is properly instructed so that it may compartmentalize the evidence. See id. at 1085-86; see e.g., Sandoval, 241 F.3d at 773 (concluding that given the strength of the State's case against petitioner on both sets of crimes, and the cross-admissibility of the evidence on each set, that petitioner's trial was not actually prejudiced by the joinder). Severance also may be in order when a defendant can "show that the core of the co-defendant's defense is so irreconcilable with the core of his own defense that the acceptance of the co-defendant's theory by the jury precludes acquittal of the defendant." United States v. Throckmorton, 87 F.3d 1069, 1072 (9th Cir. 1996).
b. Discussion
Petitioner argues that the danger of guilt by association, the conflicting defenses employed by the parties, the confusion caused by the numerous limiting instructions, and the inability to cross-examine certain witnesses all demonstrate that the denial of his severance motion violated his constitutional rights to due process and a fair trial. The Court of Appeal found that "[blecause defendants were all charged with having committed the same crime involving related events and the same victim, this is a "classic case' where a joint trial is preferred." Ex. E at 22. The court was unimpressed with the guilt by association argument, finding it could not "be taken seriously" in light of the "compelling evidence that Kesser was, in fact, the mastermind behind the plot to kill his former wife." Id. at 23. Regarding the conflicting defenses point, the court held that is reversible error only where "the codefendants are so antagonistic to one another that the jury will unjustifiably conclude that the conflict alone demonstrates that all defendants must be guilty." Id. at 22 (emph. in orig.). The court noted that this was not the case — whereas Chiara's defense was based upon diminished capacity, both Leahy and Kesser attempted to prove a lesser conspiracy to hire Chiara to blow-up Mary's car. Id. at 23. The court similarly dismissed the jury confusion argument, noting that petitioner's counsel "emphasized the importance of following the limiting instructions in closing argument and the jury was provided with an itemized list of statements to which the admissibility restrictions applied." Id.
In the Court of Appeal, petitioner separated his arguments regarding severance and the extrajudicial statements of Chiara to Geddes. See Ex. B. While, petitioner did complain about his inability to re-cross examine two witnesses, neither of those was Geddes. In the traverse, petitioner incorporates his complaints about Geddes' testimony into his severance argument. This memorandum considers the issues separately, as they were presented in the habeas petition. However, this is for convenience only and has no impact on the court's ruling for, as noted below, the court finds no prejudice to petitioner from Geddes' testimony.
In his traverse, petitioner expands upon his arguments for severance. Petitioner claims the danger of guilt by association was particularly acute because the physical evidence against Chiara was so strong, whereas the evidence against himself was almost entirely circumstantial. Petitioner details all of the physical evidence at the scene, in Chiara's car and on Chiara's own person linking Chiara to the murder. In contrast, petitioner notes that "[n]o physical evidence linked [him] to the homicide." Petitioner concedes that he made statements at his job and to his mother about killing or taking care of Mary, but argues that these were not taken seriously or are consistent with his intent to blow up her car. He notes the evidence that during the first week of November, a man identifying himself as Richard Craig Kesser called Allstate Insurance to inquire whether life insurance policies purchased for himself and his wife were still in force in light of their recent separation. However, he argues that he always went by the name Craig rather than Richard. Finally, petitioner acknowledges that Mary's brother claimed to have found a key to Mary's apartment (which the prosecutor theorized petitioner had given to Chiara) in a chair belonging to petitioner. Petitioner implies that Mary's brother perjured himself regarding where and when the key was found.
As the divorce proceedings began to impact petitioner financially (wage assignments and tax implications) petitioner made the following remarks: "I'd be better off to pay someone to do her in," "This is going get messy before it's over," and "I ought to kill the bitch." Ex. H, Vols. 15-16 at 8162.
" Petitioner's mother testified that he told her that Leahy "could call someone to take care of Mary" and that when she responded "Do you mean bump her off?", petitioner did not respond. Ex. H, Vols. 19-20 at 9216-17.
Petitioner also returns to his claims that the court's limiting instructions during trial were inadequate, incomplete and confusing. Petitioner claims the typical instruction was "This would apply only to (defendant's name)'s case." Petitioner also notes that defense counsel had to ask for clarifications. On some occasions, the court agreed to give a limiting instruction, but then did not.
i. Analysis
Petitioner has not established that the denial of his motion to sever resulted in a trial that was fundamentally unfair. First and foremost, as noted by the Court of Appeal and not effectively refuted by petitioner, the defense theories set forth by the three codefendants were, for the most part, not antagonistic but consistent. All three were arguing that Chiara's act was not planned, or the product of a conspiracy, but rather the act of a madman. A finding that Chiara was guilty of murder, based on all the physical evidence identified by petitioner, would not necessitate a finding that petitioner was also guilty.
Additionally, petitioner understates the strength of the evidence properly admitted against him. As noted by the Court of Appeal, foremost among these are the statements petitioner made about hiring someone to kill Mary, the call to the insurance company, his meetings with Chiara, and the discovery of the key. Petitioner's arguments against these pieces of evidence are specious.
For instance, the fact that his threats to have Mary murdered were not taken seriously indicate no more than the fact that people do not generally expect that one will kill his or her ex-spouse. While petitioner may prefer the name Craig, it is expected that when checking on the status of an insurance policy, one would use their full, given name.
Finally, the argument that the limiting instructions were insufficient fails. The jury was instructed to consider evidence only in accordance with the limiting instructions that were given during trial. Ex. A at 1766. Moreover, the jury was given written instructions identifying specific categories of testimony that could not be considered against petitioner. Ex. A at 1761-62, 1765. "[J]uries are presumed to follow their instructions."Zafiro v. United States, 506 U.S. 534, 540 (1993) (citation omitted). In sum, petitioner has not established that he was denied a fair trial.
4. Prejudice of Extrajudicial Statements
Ronalee Geddes testified at trial regarding a conversation that she had with Chiara before he killed Mary Kesser. Specifically, Geddes testified that Chiara told her "he was going to knock somebody off." Ex. H, Vols. 15-16 at 7900. Chiara said the intended victim's name was Mary, that he had not done the job on the previous trip because he had lacked the proper equipment, that he had seen a picture of the intended victim, and that it had to be done by a certain day. Ex. H, Vols. 15-16 at 7901. These were the comments evaluated by the California Court of Appeal. In his traverse, petitioner quotes another statement made during the cross-examination of Geddes conducted by petitioner's counsel. Petitioner's counsel asked Geddes whether Chiara told her that he couldn't find the supplies he needed for the job in Humboldt County. Ex. H, Vols. 21-22 at 9741. Geddes responded, "And Craig and Jennifer wanted it done to look like an accident." Id. The trial court ruled that this statement was not responsive and instructed the jury to ignore it. Ex. H, Vols. 21-22 at 9742.
Chiara did not testify at trial. Thus, Geddes' testimony regarding what Chiara said during those conversations is hearsay. The trial court ruled that since these statements were admissions by Chiara, they would be admitted against him only. Later the trial court changed this ruling, finding that the statements were in furtherance of a conspiracy involving all three defendants and thus were admissible against all three. The Court of Appeal found this was error, and that the statements were not in furtherance of a conspiracy.
Petitioner argued on appeal that the error required reversal — because Chiara could not be cross-examined, petitioner claimed his Sixth Amendment right of confrontation was violated. Ex. B at 80. Petitioner cited United States v. Bibbero, 749 F.2d 581, 584 (9th Cir. 1984), for the proposition that erroneously admitted hearsay testimony must be regarded as unreliable under the Confrontation Clause. Ex. B at 80-81. Accordingly, petitioner argued, the error was of constitutional dimension and the conviction must be reversed unless the error was harmless beyond a reasonable doubt. Ex. B at 81, citing, Chapman v. California, 386 U.S. 18, 24 (1967) ("before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt.")
The Court of Appeal disagreed, finding that because Chiara never mentioned Kesser, the statements in question did not directly implicate petitioner, and thus "the appropriate test is whether a different result was reasonably probable." Ex. E at 25; People v. Hardy, 2 Cal.4th 86, 147 (1992) ("Because this evidence did not directly implicate Hardy, we need not apply the Chapman standard of review."). Using that standard, the Court of Appeal found the error harmless. Ex. E at 25-26. In particular, the Court of Appeal noted that another witness, Shane Davis, testified that Chiara told him he was going to "do a lady in Humboldt." Ex. E at 25. The court found this testimony, not objected to by petitioner, to be "essentially duplicative" of the "knock somebody off' statement. Id. The court also referred to "far more damning evidence of Kesser's involvement in the plot," including petitioner's threats to hire someone to kill Mary, his meetings with Chiara in Humboldt, his phone inquiry to Allstate Insurance and the key to Mary's house found among his belongings. Ex. E at 25-26.
Here petitioner claims that the Court of Appeal erred in (1) using the wrong standard of review and (2) regardless of the standard used, finding that any error was harmless.
a. Standard
Petitioner has failed to establish that his Sixth Amendment confrontation rights have been implicated. Geddes' direct examination testimony does not directly implicate petitioner. It indicates that Chiara was planning on killing Mary and that he was being paid to do so. However, it doesn't indicate who was paying him, and petitioner is never named. Petitioner is named in the statement elicited by his own counsel during cross-examination of Geddes. However, because that particular statement was not complained of in this context before the Court of Appeals, and because it was not raised in his petition to this court, it will not be considered here.
Furthermore, petitioner cannot argue that under Bibbero the erroneous admission of hearsay evidence always implicates the Confrontation Clause. There appears to be a split in this Circuit on that question. See Weaver v. United States, 37 F.3d 1411, 1413 n. 2 (9th Cir. 1994) (noting conflict over whether standard is harmlessness beyond a reasonable doubt or merely by a preponderance of the evidence). Because of this split, and because petitioner was not directly implicated by Geddes direct examination testimony, this court cannot find that the Court of Appeal's refusal to use the Chapman standard "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." 28 U.S.C. § 2254(d)(1).
b. Fundamental Fairness
Petitioner may still prevail if he can show that the admission of Geddes' testimony was an error of such magnitude that the result is a denial of the fundamentally fair trial guaranteed by the Due Process Clause. See Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999). For the reasons identified by the Court of Appeal, petitioner cannot.
First, Chiara's "knock somebody off' statement made to Geddes is essentially duplicative of Chiara's statement to Davis that he was going to "do a lady in Humboldt." Petitioner's argument that "do a lady" is consistent with Chiara merely planning on blowing up Mary's car is not persuasive. Also, as noted in the preceding section, there was plenty of other evidence implicating petitioner, including the statements petitioner made about hiring someone to kill Mary, the call to the insurance company, his meetings with Chiara, and the discovery of the key. Geddes' testimony did not deprive petitioner of a fair trial.
5. Admission of Victim Photographs
a. Standard
A person in custody pursuant to the judgment of a state court can obtain a federal writ of habeas corpus 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). A state court's evidentiary ruling therefore is not subject to federal habeas review unless the ruling violates federal law, either by infringing upon a specific federal constitutional or statutory provision or by depriving the defendant of the fundamentally fair trial guaranteed by due process. See Pulley Harris, 465 U.S. 37, 41 (1984); Jammal v. Van de Kamp, 926 F.2d 918, 919-18 (9th Cir. 1991); Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985). Failure to comply with state rules of evidence is neither a necessary nor a sufficient basis for granting federal habeas relief on due process grounds. See Henry, 197 F.3d at 1031; Jammal, 926 F.2d at 919. Accordingly, the admission of evidence is not subject to federal habeas review unless a specific constitutional guarantee is violated or the error is of such magnitude that the result is a denial of the fundamentally fair trial guaranteed by due process. See Henry, 197 F.3d at 1031. Only if there are no permissible inferences that the jury may draw from the evidence can its admission violate due process. Jammal, 926 F.2d at 920.
See, e.g., Kealohapauloe v. Shimoda, 800 F.2d 1463, 1464-65 (9th Cir. 1986) (admission of videotape of autopsy did not render trial unfair where petitioner refused to stipulate to cause of death and tape best evidence to illustrate cause of death and tape not inflammatory).
i. Harmless Error
In order to obtain habeas relief on the basis of an evidentiary error, a petitioner must show that the error was one of constitutional dimension and that it was not harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993). He must show that the error had "'a substantial and injurious effect' on the verdict." Dillard v. Roe, 244 F.3d 758, 767 n. 7 (9th Cir. 2001) (quoting Brecht, 507 U.S. at 623).
b. Discussion
Petitioner claims that "the admission of irrelevant gruesome pictures deprived [petitioner] of due process and a fair trial." More specifically, petitioner complains that, over his repeated objections, the trial court admitted "10 photographs of the body of the victim. . . . show[ing] gaping knife wounds to the victim's face, skull, torso and limbs." Petitioner also complains that, again over objection, the trial court admitted "a videotape of the scene which included close-ups of the victim's bloody body." Petitioner argues that the pictures were irrelevant as to him and that any probative value was outweighed by the prejudice caused by their admission since he did not contest the nature and location of the wounds or the fact that Chiara was the killer. Finally, petitioner contends that, even if relevant, the evidence was cumulative of testimony of the pathologist and other photographs of the scene.
Petitioner's arguments on this point are found solely in his petition for review and are not addressed in the traverse.
The Court of Appeal, rejected this argument, noting that the California Supreme Court has "repeatedly rejected [such] claims." Ex. E at 26. In this case, the court found that "[t]he nature, location, and angle of the knife wounds to Mary bore directly on issues of whether the murder was premeditated and whether she was taken by surprise by a killer lying in wait." Id. The court found that these issues related to petitioner's guilt since there was evidence that petitioner had a key to Mary's residence and there was a lack of evidence of forced entry by Chiara. Id. at 26-27. Indeed, the court noted that the photos, even if excludable, supported petitioner's theory of the case rather than prejudiced him:
One [of] the central themes of his defense was that Chiara went beyond the scope of the original conspiracy and impulsively killed Mary. The photos actually lent considerable credence to the theory propounded by all three defendants that Mary's murder was the frenzied act of a wild man.
Id. at 27 n. 18.
i. Analysis
As noted above, petitioner's complaint that the evidence was wrongfully admitted is of no import here. Instead, petitioner faces the rather tall task of establishing that the admission of the photographs and the videotape denied him a fair trial. Petitioner's insistence that he did not contest the nature of the wounds and that the evidence was cumulative of the oral testimony of the pathologist does little to advance his claim. The Supreme Court has recently affirmed as "unquestionably true as a general matter" the "familiar, standard rule that the prosecution is entitled to prove its case by evidence of its own choice, or, more exactly, that a criminal defendant may not stipulate or admit his way out of the full evidentiary force of the case as the Government chooses to present it." Old Chief v. United States, 519 U.S. 172, 186-87 (1997). The Court expanded upon the rationale supporting this "standard rule":
Indeed, in reviewing cases on appeal from district courts, where the appellant faces the less daunting task of merely proving error rather than a deprivation of constitutional rights, "[t]he trial judge's exercise of discretion in balancing the prejudicial effect and probative value of photographic evidence of this type is rarely disturbed." United States v. Goseyun, 789 F.2d 1386, 1387 (9th Cir. 1986) (citation omitted).
it may be as difficult for one juror suddenly to face the findings that can send another human being to prison, as it is for another to hold out conscientiously for acquittal. When a juror's duty does seem hard, the evidentiary account of what a defendant has thought and done can accomplish what no set of abstract statements ever could, not just to prove a fact but to establish its human significance, and so to implicate the law's moral underpinnings and a juror's obligation to sit in judgment. Thus, the prosecution may fairly seek to place its evidence before the jurors, as much to tell a story of guiltiness as to support an inference of guilt, to convince the jurors that a guilty verdict would be morally reasonable as much as to point to the discrete elements of a defendant's legal fault. . . . A syllogism is not a story, and a naked proposition in a courtroom may be no match for the robust evidence that would be used to prove it.
Id. at 187-88.
Moreover, the mere fact that some may have considered the photographs and videotape to be "gruesome" does not result in a fundamentally unfair trial. Rivers v. United States, 270 F.2d 435, 438 (9th Cir. 1959) ("If the mere gruesomeness of the evidence were ground for its exclusion, then it would have to be said that the more gruesome the crime, the greater the difficulty of the prosecution in proving its case."). Rather, as noted above, petitioner must show that the admission of the evidence had a "substantial and injurious effect on the verdict."
Petitioner cannot make that showing here, for even if this court were to agree with petitioner that the pictures and videotape were "gruesome," there could still be no serious prejudice to petitioner. No one contends that petitioner himself actually killed Mary. And as pointed out by the Court of Appeal, the manner of Mary's killing and the nature and extent of her wounds, "lent considerable credence" to petitioner's theory that this crime, committed by Chiara, was not a murder for hire. Id. at 27 n. 18. Indeed, as petitioner argues before this court: "The crime itself, bloody and messy, is inconsistent with a murder for hire. It supports Petitioner's assertion that he hired Chiara to blow up the car, but that Chiara acted out on his own." Traverse at 68. Petitioner made the same argument to the jury. During closing argument, counsel for petitioner stated:
You don't need a psychiatrist to come in here and tell you that Mary's killer was motivated by much more than money. There was a private agenda going on in the mind of the killer. He wanted it to be close and personal. He wanted to feel the bloodlust of killing. Common sense told you that just from the nature of the killing. It doesn't exclude the possibility that he was hired to do it, but it should cause you serious question about whether he was hired at all because the nature of that killing didn't necessarily make it a hired killing.
Ex. H, Vols. 31-32 at 12439-40.
Later during argument, Petitioner's counsel again returned to this theme, arguing: "the killer wasn't simply performing a hired killing. There was something else going on. The killer was working from his own frustration and anger at the time the killing was performed." Ex. H, Vols. 31-32 at 12493. Co-defendant Leahy's counsel made a similar argument: "If the killing was to look like an accident like he told Ronalee Geddes after his first trip to Humboldt County, why was Mary so brutally murdered? No accident there." Ex. H, Vols. 31-32 at 12424.
The nature of petitioner's defense precludes the possibility that the photographs and videotape had "a substantial and injurious effect" on the verdict rendered against him. Accordingly, this claim must fail.
6. Jury Instructions
a. Standard
i. Erroneous Instruction
A challenge to a jury instruction solely as an error under state law does not state a claim cognizable in federal habeas corpus proceedings. See Estelle v. McGuire, 502 U.S. 62, 71-72 (1991). To obtain federal collateral relief for errors in the jury charge, the petitioner must show that "the ailing instruction by itself so infected the entire trial that the resulting conviction violates due process." Estelle, 502 U.S. at 72 (quoting Cupp v. Naughten, 414 U.S. 141, 147 (1973)); see also, Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974) ("[I]t must be established not merely that the instruction is undesirable, erroneous or even 'universally condemned,' but that it violated some [constitutional right].").
The instruction may not be judged in artificial isolation, but must be considered in the context of the instructions as a whole and the trial record. Estelle, 502 U.S. at 72. In other words, the court must evaluate jury instructions in the context of the overall charge to the jury as a component of the entire trial process. See United States v. Frady, 456 U.S. 152, 169 (1982). In addition, in reviewing an ambiguous instruction, the inquiry is not how reasonable jurors could or would have understood the instruction as a whole; rather, the court must inquire whether there is a "reasonable likelihood" that the jury has applied the challenged instruction in a way that violates the Constitution. Estelle, 502 U.S. at 72 n. 4. Finally, the defined category of infractions that violate fundamental fairness is very narrow: "Beyond the specific guarantees enumerated in the Bill of Rights, the Due Process Clause has limited operation." Estelle, 502 U.S. at 73.
ii. Refusal to Give Instruction
"A state trial court's refusal to give an instruction does not alone raise a ground cognizable in a federal habeas corpus proceedings." Dunckhurst v. Deeds, 859 F.2d 110, 114 (9th Cir. 1988). The error must so infect the trial that the defendant was deprived of the fair trial guaranteed by the Fourteenth Amendment. Id. "Whether a constitutional violation has occurred will depend upon the evidence in the case and the overall instructions given to the jury." Duckett v. Godinez, 67 F.3d 734, 745 (9th Cir. 1995). "The omission of an instruction is "less likely to be prejudicial than a misstatement of the law."' Walker v. Endell, 850 F.2d 470, 475-76 (9th Cir. 1988) (quoting Henderson, 431 U.S. at 155). Thus, a habeas petitioner whose claim involves a failure to give a particular instruction bears an "'especially heavy burden.'" Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997) (quoting Henderson, 431 U.S. at 155). "The significance of the omission of such an instruction may be evaluated by comparison with the instructions that were given." Murtishaw v. Woodford, 255 F.3d 926, 971 (9th Cir. 2001) (quoting Henderson, 431 U.S. at 156).
iii. Standard for Granting Relief
A habeas petitioner is not entitled to relief unless the record demonstrates that the instructional error "had substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993) (quoting Kotteakos v. United States, 328 U.S. 750, 776 (1946)). In other words, state prisoners seeking federal habeas relief may obtain plenary review of constitutional claims of trial error, but are not entitled to habeas relief unless they can establish that the error resulted in "actual prejudice." Id.; see, e.g., Coleman v. Calderon, 210 F.3d 1047, 1051 (9th Cir. 2000) (finding Brecht error where "at the very least" the court could not "say with fair assurance . . . that the judgment was not substantially swayed by the [instructional] error.") (citation omitted). This new standard applies retroactively. See e.g., McKinney Reels, 993 F.2d 1378, 1385 (9th Cir. 1993) (applying Brecht to pre-Brecht final judgment).
b. Discussion
Petitioner challenges three groups of jury instructions. As shown below, petitioner requested that the trial court give the first two groups of instructions, and thus he may not complain of them here.
i. 2.21.2
Among the instructions given to the jury was CALJIC 2.21.2, entitled "Witness Willfully False." Ex. A, Vol. 7 at 1772. That instruction reads:
A witness, who is willfully false in one material part of his or her testimony, is to be distrusted in others. You may reject the whole testimony of a witness who willfully has testified falsely as to a material point, unless, from all the evidence, you believe the probability of truth favors his or her testimony in other particulars.
CALJIC 2.21.2. This instruction, given without modification, was requested by both the State and by petitioner. Ex. A, vol. VII at 1724, 1744, 1772. Here, petitioner complains that this instruction "risked decreasing the prosecution's burden of proof by allowing the jury to use the probability standard to evaluate the testimony of crucial prosecution witnesses." He cites to People v. Rivers, 20 Cal.App.4th 1040, 1046 (1993) where the court found the "probability" standard in the instruction "somewhat suspect."
The court found that if there was any error, it was harmless. Rivers, 20 Cal.App.4th at 1046-47.
The Court of Appeal held that petitioner was "precluded from raising this point on appeal because he joined with the prosecutor in requesting the instruction." Ex. E at 28. The court went on to find that other California courts have upheld the instruction and distinguished Rivers on the facts. Id.
Petitioner's "procedural default" in requesting the instructions complained of bars consideration of this claim on habeas review:
In all cases in which a state prisoner has defaulted his federal claims in state court pursuant to an independent and adequate state procedural rule, federal habeas review of the claims is barred unless the prisoner can demonstrate cause for the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate that failure to consider the claims will result in a fundamental miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
Thus, to overcome the procedural default, petitioner must either show cause and actual prejudice or a fundamental miscarriage of justice. Petitioner does not even attempt to show cause here. Respondent notes that before the Court of Appeal, petitioner attempted to avoid waiver by arguing ineffective assistance of counsel in requesting the instruction. While ineffective assistance may provide cause under certain circumstances, petitioner has not raised that claim here and the court will not consider it. Similarly, petitioner cannot show a fundamental miscarriage of justice. "Such injustice occurs where a constitutional violation has probably resulted in the conviction of one who is actually innocent." Bonin v. Calderon, 77 F.3d 1155, 1159 (9th Cir. 1996) (citation omitted). Petitioner has not shown, particularly as a result of this instruction that he requested, that he was convicted despite his innocence. Petitioner is barred from making this claim here.
ii. 2.01 2.02
The court also instructed the jury on CALJIC 2.01 and 2.02, which are entitled, respectively, "Sufficiency of Circumstantial Evidence — Generally," and "Sufficiency of Circumstantial Evidence To Prove Specific Intent or Mental State." Ex. A, Vol. 7 at 1754, 1756. Again, these instructions were given without modification and upon request by both the State and petitioner. Ex. A, Vol. 7 at 1754, 1756, 1723, 1743. Also once again, petitioner makes no attempt to try to avoid the effect of his waiver. Accordingly, petitioner may not complain about these instructions here.
iii. Consciousness of Guilt Evidence
Finally, petitioner complains the trial court erred in refusing to modify CALJIC 2.03, 2.04 and 2.06. These instructions state that if the jurors found that prior to trial, defendants "made willfully false or deliberately misleading statements concerning the crime" (2.03), "attempted to or did fabricate evidence to be produced at trial" (2.04) or "attempted to suppress evidence against himself or herself in any manner" (2.06), then the jury could consider that conduct "as a circumstance tending to prove a consciousness of guilt. However, such conduct is not sufficient by itself to prove guilt, and its weight and significance, if any, are matters for your determination." CALJIC 2.03, 2.04, 2.06. Ex. A, Vol. 7 at 1758-60. Petitioner requested that each instruction be modified "to further provide that "consciousness of guilt' may not be considered in determining which crime the defendant committed." Petitioner states that his "entire defense was that he was guilty of conspiring to explode the victim's automobile rather than murder." Petitioner argues that where it is clear that a defendant committed some offense, and the only question is which offense, consciousness of guilt has no probative value. Thus, petitioner argues that because consciousness of guilt "could not be considered in determining which crime appellant committed," the instructions were prejudicial.
Instructions 2.04 and 2.06 use "show" instead of "prove."
The Court of Appeal rejected this argument, noting that the California Supreme Court had previously held that "a reasonable juror would understand "consciousness of guilt' to mean "consciousness of some wrongdoing' rather than a consciousness of the specific offense charged." Ex. E at 27, quoting, People v. Crandell, 46 Cal.3d 833, 871 (1988).
Simply put, petitioner has not carried his burden to show that the refusal to modify these instructions "had substantial and injurious effect or influence in determining the jury's verdict." Brecht, 507 U.S. at 637 (citation omitted). In the first place, even if it is assumed that consciousness of guilt had no probative value in this case, the jury instructions in question do not require the jury to draw any conclusions. Rather, the instructions merely inform the jury that misleading acts "may" be "consider[ed]" as tending to show a "consciousness of guilt." As pointed out by the Court of Appeal, there is nothing in the instruction equating "consciousness of guilt" with "consciousness of the specific offense charged." At most, petitioner argues that these instructions were unhelpful, but he does not show that they were prejudicial.
CONCLUSION
For the foregoing reasons, the petition for a writ of habeas corpus is DENIED. The clerk shall close the file.
IT IS SO ORDERED.