Opinion
No. C 99-3782 MMC (PR)
May 24, 2001
ORDER DENYING PETITION FOR WRIT OF HABEAS CORPUS
Loi Khac Nguyen ("petitioner"), a prisoner of the State of California, filed this pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. The matter was initially assigned to a Magistrate Judge (James, J.). On November 29, 1999, after petitioner consented to Magistrate Judge James's jurisdiction, Magistrate Judge James found the three claims, liberally construed, cognizable, and ordered respondent to show cause within sixty days why the petition should not be granted. On January 26, 2000, respondent requested reassignment to a United States District Judge and, on March 17, 2000, the action was reassigned to the undersigned. Respondent filed an answer denying the petition, along with a memorandum and accompanying exhibits. Petitioner did not file a traverse.
Shortly after respondent's request, the case was inadvertently transferred to the United States District Court for the Central District of California. On February 22, 2000, that transfer was vacated, and the action was returned to this district.
BACKGROUND
Petitioner was convicted by a jury in San Francisco County Superior Court of multiple counts of murder, attempted murder, kidnapping for ransom, and assault with a firearm. In 1995, petitioner was sentenced to 41 consecutive terms of life without the possibility of parole, eight consecutive terms of life with the possibility of parole, and a determinate sentence of 179 years. The California Court of Appeal affirmed, and the Supreme Court of California denied the petition for direct review.
FACTUAL BACKGROUND
This factual background, uncontested by the parties, is derived from the opinion of the California Court of Appeal (hereinafter "Slip Op."), see Respt. Exh.E, petitioner's state court appellate brief attached to the petition, and respondent's memorandum in support of his answer.
In the early afternoon of April 4, 1991, petitioner, his two younger brothers Long and Pham, and a friend, Cuong Tran, took more than thirty people hostage at gunpoint in a Good Guys store in Sacramento. They intended to use the hostages to help them return to Vietnam, their country of origin. Petitioner was the leader of this group and, in late 1990 and early 1991, had bought guns and ammunition to carry out the plan. While rounding up the hostages, petitioner shot at and missed an employee, and Long fired shots into a closet where other employees were hiding. The police quickly surrounded the store. For the next nine to ten hours, there was a standoff while the hostages were confined to the store and negotiations were conducted with the police. Petitioner told the police that the hostages would be released in exchange for a helicopter, bulletproof armor, guns, ammunition and safe passage to Vietnam. Petitioner threatened to kill the hostages if the demands were not met according to the timelines he set forth. Sheriff's Deputy Gerald Gomez ("Deputy Gomez") and Sergeant Robert Curie ("Sergeant Curie") were the police negotiators. Sergeant Curie tried to establish trust by assuring petitioner that he respected him and that things would go easier for everyone if they surrendered. Eventually, petitioner changed his demands to minimal jail time, protection for other inmates, bulletproof armor, and the right to possess guns in jail. Petitioner wanted these assurances in a written contract signed by the President, the Governor, or other official outside of the police. At certain points, petitioner also demanded that Sergeant Curie swear his commitment in front of a priest or on television. Sergeant Curie told petitioner he would receive a short jail term and could have his guns and vest after release from jail. Petitioner responded that he accepted these terms but that his partners did not. He then handed over the negotiations to Long, who, according to Sergeant Curie and the hostages, was more agitated and threatening than petitioner and less willing to compromise. Sometime thereafter, a hostage was shot, at which point Sergeant Curie told petitioner that he and his partners had gone too far. Petitioner reiterated his threats to kill people. Thereafter, a second hostage was shot, and the police stormed the building.
Sergeant Curie had training in strategies for resolving hostage situations. At the time, Deputy Gomez nor Sergeant Curie had been trained in Southeast Asian culture generally or Vietnamese culture specifically. After the incident, Deputy Gomez was trained in Southeast Asian culture.
The hostages testified about what happened while they were detained. The hostages were tied up with speaker wire, and petitioner made numerous threats to kill them. At one point, petitioner flipped a coin to decide who to kill first. When the officers delivered the first bulletproof vest, petitioner sent a woman hostage to retrieve it, threatening to kill her children if she did not return. He pointed his gun at the children while the woman was outside and shot at the vest to test it when she returned. Petitioner released the woman and her children, and subsequently let five other hostages go. Eventually, petitioner selected a male hostage, Sean McIntyre ("McIntyre") and told him to turn around. Long then shot McIntyre in the leg. Petitioner told McIntyre he was lucky and let him leave to convey the message to the police that the hostage-takers were serious. Sometime later the hostages were told to select the first victim from among themselves, at which point an elderly man, Harold Brooks ("Brooks"), fainted and fell to the floor. Long then tried to shoot Brooks but his gun misfired, whereupon petitioner shot Brooks in the leg. Shortly before 10:00 p.m., petitioner and Long sent a woman out on a wire tether to retrieve a second vest. While petitioner was watching her, a police sniper fired at petitioner through a glass door. The door shattered and, as a SWAT team stormed the building, Long began shooting hostages. In the melee, three hostages were killed, ten were wounded, and all three of petitioner's accomplices were killed.
Some witnesses testified that one of the other hostage-takers shot at the vest.
Some witnesses testified that Long shot Brooks in the leg.
Petitioner called as witnesses Dr. Cuong Hoang Chung ("Dr. Chung"), a cultural expert, and Thuc Nguyen, petitioner's cousin, who each testified about Vietnamese culture and the difficulties facing Vietnamese American refugees. Dr. Chung, in particular, described the importance of family and the dominant role of the eldest son in Vietnamese culture, as well as how immigration to the United States breaks down this hierarchy. Through petitioner's cousin, petitioner presented evidence of the extremely difficult circumstances under which he and his family had fled Vietnam by boat in 1979, and the challenges petitioner faced in adjusting to life in America. In addition, petitioner introduced expert opinions on the unreliability of eyewitness testimony and pointed out inconsistencies in the testimony of prosecution witnesses. Finally, character witnesses testified that petitioner was not by nature a violent person.
Petitioner attempted unsuccessfully to introduce the testimony of another cultural expert. The trial court's refusal to admit that testimony is the subject of one of petitioner's claims and is addressed below.
DISCUSSION
A. Standard of Review
This Court may entertain a petition for a writ of habeas corpus "in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a); Rose v. Hodges, 423 U.S. 19, 21 (1975). 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); Williams v. Taylor, 120 S.Ct. 1495, 1523 (2000). When analyzing a claim that there has been an unreasonable application of federal law, a district court should first consider de novo whether the state court's decision was erroneous and then determine whether the error constituted an unreasonable application of controlling law under AEDPA. See Van Tran v. Lindsey, 212 F.3d 1143, 1154-55 (9th Cir.), cert. denied, 121 S.Ct. 340 (2000). Habeas relief is warranted only if the constitutional error at issue had a substantial and injurious effect or influence in determining the jury's verdict. Brecht v. Abrahamson, 507 U.S. 619, 638 (1993); Bains v. Cambra, 204 F.3d 964, 977-78 (9th Cir.), cert. denied, 121 S.Ct. 627 (2000).
In determining whether the state courts decision is contrary to, or involved an unreasonable application of, clearly established federal law, a federal court looks to the decision of the highest state court to address the merits. LaJoie v. Thompson, 201 F.3d 1166, 1172 n. 9 (9th Cir. 2000). In this case, the highest court to address the merits of petitioner's claims is the California Court of Appeal. See Respt. Exhs. C B.
B. Legal Claims
Petitioner raises two claims stemming from the trial court's exclusion of evidence and one claim stemming from the trial court's limitation on his cross-examination of adverse witnesses.
1. Exclusion of Evidence
Petitioner contends that the trial court denied him due process by excluding the testimony of an expert in Southeast Asian culture and an expert in hostage negotiations. The Due Process Clause does not guarantee the right to introduce all relevant evidence. See Montana v. Egelhoff, 518 U.S. 37, 42 (1996). A defendant does not have an unfettered right to offer evidence that is incompetent, privileged or otherwise inadmissible under standard rules of evidence. See id. The exclusion of evidence does not violate the Due Process Clause unless "it offends some principle of justice so rooted in the traditions and conscience of our people as to be ranked as fundamental." Id. at 43 (quoting Patterson v. New York, 432 U.S. 197, 201-02 (1977)) (internal quotations omitted). The defendant must establish that the exclusion of evidence constituted a violation of "fundamental principle of justice." See id. Petitioner argues that the exclusion of the experts' testimony violated his Sixth Amendment right to present a defense. See Chambers v. Mississippi, 410 U.S. 284, 294 (1973); Washington v. Texas, 388 U.S. 14, 18-19 (1967). The right to present a defense is one of the fundamental principles of justice that may be violated by the erroneous exclusion of critical defense evidence. DePetris v. Kuykendall, 239 F.3d 1057, 1062 (9th Cir. 2001) (finding the exclusion of critical defense evidence violated due process because it impeded petitioner's Sixth Amendment right to present a defense under Chambers and Washington). In addition to establishing that the exclusion of expert testimony denied him the constitutional right to present a defense, petitioner must also show that this error was not harmless under Brecht v. Abrahamson, 507 U.S. 619 (1993). To do so, petitioner must show that the exclusion of the expert's testimony had "`a substantial and injurious effect' on the verdict." Dillard v. Roe, No. 99-56345, slip op. 3749, 3770 n. 7 (9th Cir. Mar. 27, 2001) (quoting Brecht, 507 U.S. at 623).
Petitioner sought to introduce testimony about Southeast Asian culture in order to bolster his defense that he had attempted to withdraw from participating in the crimes charged. The jury was instructed that a defendant may end his responsibility for a crime by notifying the other parties of his intention to withdraw and by doing everything in his power to prevent further commission of the crime. See Slip Op. at 10. This test is an objective one, in that the defendant's actions are judged by how a reasonable person would act under similar circumstances. See id. The trial court allowed petitioner to present the testimony of his cousin and of a cultural expert, Dr. Chung, regarding the hierarchical nature of Vietnamese families, the importance of saving face, and the difficulties experienced by Vietnamese refugees in adjusting to American culture. Petitioner was not allowed to present the testimony of another cultural expert, Alan Kobayashi ("Kobayashi"). Kobayashi worked for the Sacramento Police Department and provided cultural training to its officers. Petitioner sought to have Kobayashi testify that if Sergeant Curie and Deputy Gomez had been trained in Vietnamese culture at the time of the incident, they would have understood that transplanted Vietnamese such as petitioner fear the police and need public assurances of their trustworthiness. Petitioner argues that this testimony would have explained how his request for a written agreement from the President or Governor demonstrated his sincere intention to end the standoff. Kobayashi also would have testified that petitioner's culture placed great importance on saving face and the authority of the eldest son. Petitioner contends that this testimony would have explained his reluctance to admit defeat and to surrender independent of his younger brothers.
The parties do not dispute that this instruction was a correct statement of California law on the defense of withdrawal.
The Court need not reach the question of whether the exclusion of Kobayashi's testimony rises to the level of constitutional error because it is highly unlikely that excluding this evidence had a sufficient impact on the jury's verdict under Brecht. First, Kobayashi's testimony regarding petitioner's loyalty to his brother and saving face would have been duplicative. Petitioner's cousin and the other cultural expert, Dr. Chung, testified that Vietnamese place great importance on family and saving face, and Deputy Gomez reiterated this point when cross-examined about his training in Southeast Asian culture. Secondly, Kobayashi's testimony may well have been damaging to the defense. Testimony regarding petitioner's loyalty to his brother could have undermined any theory that petitioner intended to surrender, as petitioner's brother was adamant about not going to jail. Similarly, the importance to petitioner of saving face may have suggested to the jury that petitioner was prepared to avoid jail at any cost, and thus that petitioner could not surrender once the first hostage had been shot and the police made it clear that jail was unavoidable. Finally, the other evidence in the case strongly indicated that petitioner was not trying to surrender or to "do everything in his power" to stop the crime from proceeding: petitioner participated in the shooting of hostages prior to the time the police stormed the building; he turned the negotiations over to his brother, who was considerably more agitated and urging greater violence; and his offer of surrender remained conditioned on significant concessions by the police. Under these circumstances, even with the testimony of Kobayashi, it is highly unlikely the jury would have found that petitioner both intended to surrender and had done everything in his power to prevent the crimes from occurring.
The trial court instructed the jury that Dr. Chung's testimony could only be considered for the murder and special circumstances charges, not for the assault and kidnapping charges. No such limiting instruction was placed on the testimony of petitioner's cousin or Deputy Gomez, however.
Similarly, the trial court's excluding as irrelevant the testimony of an expert on hostage negotiations was harmless under the standard in Brecht. The expert, Peter Reedy ("Reedy"), would have testified about effective techniques for negotiating and resolving hostage situations. Petitioner also claims that Reedy would have testified, based on his experience with hostage-takers, that petitioner's threats were not evidence of petitioner's intent to kill, but were simply the result of stress. Reedy's testimony, petitioner argues, would have assisted the jury in determining whether the police were negligent. Petitioner further argues that police negligence was relevant as to the issue of intent to kill and as to the jury's findings of special circumstances on the murder and kidnapping charges under California Penal Code sections 190.2(d) and 209(a), respectively.
With respect to these arguments, it should first be noted that intent to kill is not necessary for a finding of special circumstances. The jury was instructed that it could find special circumstances on the murder charges if the jury found that petitioner was a "major participant" in a kidnapping for ransom and in such capacity acted with "reckless indifference to human life." Reporter's Transcript ("RT") (Respt. Exh. B) at 11352. As to the kidnapping charges, the jury was instructed that it could find special circumstances if the jury found that the victims were "intentionally confined in a manner which exposed such person[s] to a substantial likelihood of death." Slip Op. at 26.
The exclusion of Reedy's testimony was harmless. Reedy purportedly would have set forth his opinion as to the proper way to handle negotiations where hostages are involved. Petitioner contends that Reedy's testimony would have helped the jury determine whether police negligence, as opposed to petitioner's actions, caused the situation to escalate to the point where the victims were put in danger and killed. Under the circumstances presented by this case, however, negligence on the part of the police and culpability on the part of petitioner are not mutually exclusive. Even if Reedy's testimony had been admitted and, based thereon, the jury had found the police negligent, it is likely the jury would have found that petitioner acted with reckless indifference to life and intentionally confined the victims in a manner which exposed the victims to a substantial likelihood of death. As noted, intent to kill is not a requisite element of special circumstances. Under California law, the "culpable mental state of "reckless indifference to life' is one in which the defendant "knowingly engag[es] in criminal activities known to carry a grave risk of death'." People v. Estrada, 11 Cal.4th 568, 577 (1995) (quoting Tison v. Arizona, 481 U.S. 137, 157 (1987)).
Here, the evidence showed that petitioner participated in shooting at hostages prior to the SWAT team invasion, brought loaded guns into the hostage situation and fired them around the store near people, and tied up and shot an elderly man, all actions which obviously carried a grave risk of death. Petitioner also threatened to kill the hostages and repeatedly defied police orders to surrender, which risked a SWAT team invasion and ensuing gunfight. In addition, petitioner's conditioning his surrender on extremely difficult demands, such as a written contract with the President, and his passing the negotiations to his volatile brother carried a grave risk of prolonging the life-threatening standoff. Under California law as outlined in the jury instructions, the probability is that this evidence would have led the jury to find the special circumstances to be true, irrespective of whether Reedy's testimony were admitted. As a result, the exclusion of Reedy's testimony is unlikely to have had a substantial and injurious effect on the jury's verdict.
In summary, as described above, there was strong evidence in this case that petitioner did not withdraw from the commission of the crimes and that petitioner acted with reckless indifference to the safety of the hostages' lives. As a result, even if the exclusion of testimony by experts on the subject of Southeast Asian culture and hostage negotiations can be considered constitutional error, it is unlikely that the exclusion of such evidence had a substantial and injurious effect on the jury's verdict. Accordingly, under Brecht, habeas relief is unavailable on these claims.
2. Cross-Examination
Petitioner also contends that the trial court violated his Sixth Amendment right of confrontation by limiting cross-examination of Deputy Gomez and Sergeant Curie. The Confrontation Clause of the Sixth Amendment provides that in criminal cases the accused has the right to "be confronted with the witnesses against him." U.S. Const. amend. VI. A primary right secured by the Confrontation Clause is the right of cross-examination of adverse witnesses. Davis v. Alaska, 415 U.S. 308, 315 (1974). The Confrontation Clause, however, does not prevent a trial judge from imposing reasonable limits on cross-examination in order to prevent harassment, prejudice, confusion of issues, witness safety, or interrogation that is repetitive or only marginally relevant. See Delaware v. Van Arsdall, 475 U.S. 673, 679 (1986). To determine whether a criminal defendant's Sixth Amendment right of confrontation has been violated by the exclusion of evidence on cross-examination, a court must inquire whether: "(1) the evidence was relevant; (2) there were other legitimate interests outweighing the defendant's interests in presenting the evidence; and (3) the exclusion of evidence left the jury with sufficient information to assess the credibility of the witness." See United States v. Beardslee, 197 F.3d 378, 383 (9th Cir. 1999) (citations omitted). The Confrontation Clause guarantees an opportunity for effective cross-examination, not cross-examination in whatever way, and to whatever extent, the defense might wish. See Delaware v. Fensterer, 474 U.S. 15, 20 (1985) (per curiam).
The trial court allowed cross-examination about the officers' conduct, observations, and training, including their training regarding Southeast Asian culture. The trial court did not allow cross-examination as to petitioner's state of mind or as to police negotiation tactics and the officers' adherence to negotiation guidelines. Although petitioner's state of mind was relevant, the officer's impressions of petitioner's state of mind were properly excluded as speculative and unreliable. The trial court's limitations on questioning the police about the propriety of their own conduct was also proper. Whether or not the police negotiated effectively has no bearing on whether petitioner actually shot and kidnapped people or whether he did so with the requisite state of mind. Lastly, the cross-examination that was allowed by the trial court as to police conduct, training and observations provided the jury with sufficient evidence to evaluate the officers' credibility and any bias against petitioner. Under the circumstances, the limitations on cross-examination did not violate petitioner's rights under the Confrontation Clause.
In fact, excluding the officers impressions prevented the officers from speculating that petitioner's state of mind was culpable.
CONCLUSION
In light of the foregoing, the petition for a writ of habeas corpus is DENIED. All pending motions are TERMINATED and the clerk shall close the file.
IT IS SO ORDERED.
JUDGMENT IN A CIVIL CASE
IT IS ORDERED AND ADJUDGED the petition for a writ of habeas corpus is DENIED. ALL pending motions are TERMINATED.