Opinion
No. C 03-0689 CRB
December 5, 2003
MEMORANDUM AND ORDER
Now before the Court is Son Truong Nguyen's petition for a writ of habeas corpus. The petition arises out of petitioner's 1998 conviction for three counts of second degree murder, multiple murder special circumstance, and personal use of a firearm. After careful review and consideration of the papers submitted, the petition for writ of habeas corpus is DENIED.
I. BACKGROUND
A. Procedural History
On September 30, 1996, petitioner and seven co-defendants were each charged with three counts of first-degree murder (Cal. Penal Code § 187), multiple murder special circumstance (Cal. Penal Code § 190.2(a)(3), and personal use of a firearm. (Cal. Penal Code § 12022.5(a)(1)). All defendants, including petitioner, pled not guilty to the charges and denied the allegations. The defendants were severed into two groups for trial; petitioner was tried with the second group, along with co-defendants Khanh Hinh ("Hinh"), Ho Thai Nguyen ("Ho"), Khoa Dang Nguyen ("Khoa") and Sunny Van Nguyen ("Sunny").
On September 1, 1998, a jury in the Santa Clara County Superior Court found petitioner guilty of three counts of second degree murder, and found the firearm-use allegations as to him true. The jury found Ho, Khoa, and Sunny each guilty of three counts of first degree murder with a multiple murder special circumstance, and found the firearm-use allegations as to Khoa and Sunny true. Finally, the jury was unable to reach a verdict as to Hinh, and the trial court declared a mistrial.
On May 21, 1999, the trial court sentenced petitioner to state prison for three consecutive indeterminate terms of 15 years to life for the murders, plus three consecutive determinate terms of 10 years for the firearm enhancements.
Petitioner appealed his convictions to the California Court of Appeal. The original appeal was based on four grounds: (1) petitioner was denied his right to due process and fair trial due to the trial court's admission of prejudicial and irrelevant gang evidence; (2) petitioner was denied his rights to due process and fair trial, and the right to present a defense, due to the trial court's failure to sever his case from his co-defendants; (3) petitioner was denied his rights to due process, a fair and public trial, and the presumption of innocence due to the trial court's drastic security measures; and (4) remand was required because the trial court failed to state reasons for imposing the aggravated term for weapon use. On August 30, 2001, the California Court of Appeal issued an order affirming the trial court judgment. Petitioner subsequently filed a petition with the California Supreme Court, which denied review on November 28, 2001.
Petitioner filed the instant federal petition for a writ of habeas corpus on February 19, 2003, pursuant to 28 U.S.C. § 2254. He maintains the same grounds as on his state habeas petition, but he has replaced the fourth claim with the following argument: petitioner was denied his rights to due process, a fair trial, and the presumption of innocence due to all the errors individually and cumulatively.
Per order filed on March 24, 2003, the Court ordered respondent to show cause why a writ of habeas corpus should not be granted. Respondent filed an answer to the order to show cause and petitioner filed a traverse.
B. Trial Proceedings
Except where otherwise cited, the following factual summary derives from the state appellate review of petitioner's conviction. See Appellate Opinion at 2-5. Both parties are in substantial agreement with these facts for the purposes of the issues raised by this petition.
1. Prosecution's Case in Chief
On March 11, 1995, around midnight, a group of individuals, not including petitioner, were drinking at First Club, a night club in San Jose. The group included co-defendants Hinh, Ho, and Sunny as well as several other individuals. Also present was Cuong Do ("Do"). Ho, Do, and some of the other individuals were current or former members of a group or gang called "Asian Boys" ("AB"). Do denied being the leader of AB, but admitted that the younger AB members respected him because he was older.
Shortly after midnight, an Asian male wearing a brown or mustard-colored shirt or jacket approached Do from behind and said he needed to talk to Do. As Do turned around, the man shot Do in the stomach and ran out of the club. Do was taken to the hospital and survived.
At trial, Do testified that while he did not actually see the shooter, he heard people identify "Loc," an individual whom Do had hit with a beer bottle two weeks earlier when Loc had tried to pick up Do's girlfriend. Do also attributed the shooting to a conflict between AB and a rival group or gang called "Asians Kicking Ass" ("AKA"). While Do claimed that he had friends in both AB and AKA, he admitted that the two gangs did not get along. Although Do suspected AKA was involved in the shooting, he denied having revealed his suspicion to anyone present at First Club.
After the shooting, a group of individuals, including the petitioner and all four co-defendants, gathered at Khoa's residence. Most of those present were upset or angry, and wanted to know who shot Do. Some identified the shooter as having a brown or mustard-colored shirt or jacket.
At around 2:00 a.m., someone in Khoa's room or garage received a phone call. Following the phone call, some of the people in the room, including co-defendant Khoa, spoke of getting or shooting the person or persons responsible for Do's shooting. Some of the people, including Khoa, armed themselves. Several minutes after the phone call, some of the people, including all the co-defendants (Hinh, Ho, Khoa, and Sunny) left the house in two cars. One member of the group was told that Do's shooter was at the May Tiem Café. The group gathered in the café's parking lot. Co-defendant Khoa had a shotgun with him.
In an interview with the police on May 19, 1995, petitioner stated that he was at a political rally earlier that night with a friend, Trung Vanh ("Vanh"), and did not arrive at Khoa's residence until well after midnight, where he saw a number of people gathered around the garage. Petitioner stated that he was not aware of Do's shooting earlier that night. Petitioner also stated that he stood in the garage doorway and could see people inside, but was not sure what was taking place. At some point during that meeting, some people asked petitioner to borrow his newly purchased Browning semi-automatic handgun. Petitioner claimed that, without inquiring as to why they wanted to borrow his gun, he and Vanh went back to his house and retrieved it. When petitioner returned, he saw a group of people preparing to leave. They asked petitioner to go along, and petitioner did so, though he claimed he did not know where they were going. While in the car, petitioner observed someone check to see if a handgun was loaded.
Petitioner's interview with the police was recorded. At trial, a redacted version of the audio tape was admitted into evidence and played for the jury at trial. See Respondent's Ex. A at 693-755; Ex. E at 1213-15.
Petitioner and the group arrived at May Tiem Café, where he was told of Do's shooting. Petitioner was also told that Do's shooter was inside with two other people, playing video games. According to the petitioner, once the others pulled out their guns to go inside, petitioner finally became aware of the plan. Petitioner claimed that he did not care about Do's shooting, and only went in the café with the group because he was threatened.
Shortly after 2:00 a.m., when the café owner was about to close for the night, six men entered the café armed with five handguns and one shotgun. The six men entered the game room where the three victims, Le, Truc, and Vu were playing video games. Truc was wearing a brown jacket. The six intruders walked to the game room, shot at the victims from the doorway until all three victims were down, and then fled the café. On the way out, one member of the group was heard to say, "We got them, they are all dead." Two of the three victims died immediately, and one died the next day from his wounds. There was no evidence that the victims were armed.
Petitioner stated that he entered the café with the group. Petitioner further stated that he went to the game room entrance, pointed his handgun in the direction of the three victims, and fired two or three times without looking. He stopped shooting when he looked and saw one of the victims lying dead on the floor. Petitioner said that he shot at the victims because he was "stupid" and "scared."
Petitioner said that after the shooting he and the others ran out of the café and back to the cars they came in. They went back to Khoa's house, where petitioner said he left his handgun. Shortly thereafter, petitioner went home, and discarded the clothes he had been wearing that night into the dumpsters of various commercial establishments near his house. In May 1995, petitioner self-surrendered to the authorities.
The May Tiem Café had four surveillance cameras: two in the main room and two in the parking lot. When the police showed petitioner relevant portions of the security camera videotapes from the café, petitioner identified himself and some others on the video tapes. It is unclear from the record whether the tapes in question were from cameras outside or inside the café.
2. Petitioner's Defense
Petitioner's defense emphasized the unreliability of prosecution witnesses, attempting to discredit their testimony. Furthermore, petitioner's sister, Heather Nguyen, and his father, Van Nguyen, also presented evidence concerning petitioner's good moral character. They testified that petitioner was a non-violent, non-aggressive person, who was courteous, quiet, and shy. They further testified that the charges against him were inconsistent with his character trait for non-violence.
II. 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). The writ may not be granted with respect to any claim that was adjudicated on the merits in state court unless the state court's adjudication of the claim: "(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding."Id. § 2254(d)."Under the `contrary to' clause, a federal habeas court may grant the writ 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 v. Taylor, 529 U.S. 362, 412-13 (2000).
"Under the `unreasonable application clause,' a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from [the Supreme] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case."Id. at 413.
"[A] federal habeas court may not issue the writ simply because the court concludes in its independent judgment that the relevant state-court decision applied clearly established federal law erroneously or incorrectly. Rather, that application must also be unreasonable."Id. at 411. A federal habeas court making the "unreasonable application" inquiry should ask whether the state court's application of clearly established federal law was "objectively unreasonable."Id. at 409.
The only definitive source of clearly established federal law under 28 U.S.C. § 2254(d) is in the holdings (as opposed to the dicta) of the Supreme Court as of the time of the state court decision. See id. at 412: Clark v. Murphy, 331 F.3d 1062, 1069 (9th Cir. 2003). While circuit law may be "persuasive authority" for purposes of determining whether a state court decision is an unreasonable application of Supreme Court precedent, only the Supreme Court's holdings are binding on the state courts and only those holdings need be "reasonably" applied.Clark, 331 F.3d at 1069.
Even if a state court decision is contrary to, or involves an unreasonable application of, clearly established United States Supreme Court precedent, federal habeas relief is warranted only if the error had a "`substantial and injurious effect or influence in determining the jury's verdict.'" Penry v. Johnson. 532 U.S. 782, 795 (2001) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Where error is found, the state bears the burden to instill in the court a "`fair assurance'" that there was no such effect on the verdict.Payton v. Woodford, 346 F.3d 1204, 1217 (9th Cir. 2003) (en bane) (citation omitted).
III. DISCUSSION
Petitioner raises four constitutional claims based on his trial proceedings. They fall into the following categories:
1. Denial of due process and fair trial rights due to the admission of gang evidence (Claim I);
2. Denial of due process and fair trial rights, and the right to present a defense, due to the trial court's failure to sever petitioner's trial from that of his co-defendants (Claim II);
3. Denial of due process, and a fair and public trial, based on the trial court's ruling that authorized additional, allegedly excessive, courtroom security measures (Claim III);
4. Denial of due process and fair trial rights due to the cumulative effect of the trial court's challenged rulings (Claim IV).
A. Admission of Gang Evidence
1. Legal Standard
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 v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999): Colley v. Sumner, 784 F.2d 984. 990 (9th Cir.). cert. denied, 479 U.S. 839 (1986). Admission of evidence violates due process only when two circumstances are met: (1) "there are no permissible inferences the jury may draw from the evidence" and (2) the evidence is "`of such a quality as necessarily prevents a fair trial.'" Jammal v. Van de Kamp, 926 F.2d 918, 920 (9th Cir. 1991) (citation omitted). Juries are presumed to follow a court's limiting instructions with respect to the purposes for which evidence is admitted. See Aguilar v. Alexander, 125 F.3d 815, 820 (9th Cir. 1997).
2. Background
At trial, gang-affiliation evidence was introduced as summarized in the facts above. In short, the evidence was primarily about the feud between AB and AKA, and whether some of the co-defendants suspected AKA's involvement in Do's shooting. The evidence also addressed whether certain co-defendants, including Sunny and Ho, were present or former gang members. The prosecutor also referred to gang affiliation evidence a number of times in his closing argument. He argued that the evidence showed that at the time of Do's shooting, Ho was a member of AB, and that Sunny was a former member of another gang, FNM, with friends in AB. As such, the prosecutor maintained that the evidence was relevant to prove motive for participation in the shootings.
The defendants, including petitioner, moved to exclude any gang affiliation evidence on the grounds that it was irrelevant, improper character evidence, unduly prejudicial, and that its admission would constitute a denial of due process. Petitioner argued that there was no relevance because there was no question of motive, intent, or identity: the defendants did not share any common gang affiliations, most were not gang members, all of them identified themselves as present at the shooting, and to the extent they were motivated by anything, it was a desire to get back at the shooter of a friend, not a gang motive.
The respondents argued that the gang evidence offers evidence of motive for some of the participants in the May Tiem Café shooting, and the trial court agreed. The jury was instructed as to the limited inferences it was permitted to draw from the gang evidence. Specifically, the jury was told that the gang evidence was "only for the limited purpose of determining whether it tends to show the motive of the person who committed the crimes, if any, of which the defendants are accused." The jury was expressly told that it was "not permitted to consider such evidence for any other purpose." In his closing argument, the prosecutor twice reminded the jury that only co-defendant Ho was a gang member, and that the evidence was only being offered as motive for participation in the shooting. The prosecutor expressly told the jury that gang membership evidence was not introduced to show anybody was a bad person.
3. Analysis
Petitioner's claim fails under federal habeas review.
First, petitioner cites no United States Supreme Court precedent suggesting that the admission of gang evidence violates a specific constitutional guarantee. Petitioner does cite some precedent from various circuit courts, warning of the dangers of admitting gang evidence due to its prejudicial effect on a defendant. See e.g.,United States v. Irvin, 87 F.3d 860, 865 (7th Cir. 1996) ("gangs . . . often invoke images of criminal activity and deviant behavior. There is therefore always the possibility that a jury will attach a propensity for committing crimes to defendants who are affiliated with gangs or that a jury's negative feeling toward gangs will influence its verdict").
Though there is a danger of "guilt by association" when gang evidence is admitted, the question before this Court is whether the trial court's decision to admit such evidence rose to the level of denying petitioner his right to due process. There can be no due process violation if the jury could draw any permissible inferences from the evidence admitted. See Jammal, 926 F.2d at 920. Here, the evidence was admitted for the purposes of motive and intent. The California Court of Appeal concluded that, because defendants, including petitioner, were tried as co-conspirators and aiders and abettors as well as direct perpetrators, evidence of motive as to any defendant was relevant as to all defendants. Appellate Opinion at 21-22. As such, the jury had at least one permissible inference to draw from the evidence, and therefore, admission of the evidence did not violate due process.
The record also does not support a finding that the petitioner was harmed by admission of the gang evidence. The trial court specifically instructed the jury not to draw impermissible inferences from the gang evidence, and petitioner gives the Court no reason to disregard the presumption that the jury followed that instruction.
Finally, the prosecutor expressly stated in his closing argument that there was no evidence of petitioner being a gang member, thus restricting the gang evidence to petitioner's co-defendants. Further, the fact that the jury convicted petitioner of second degree murder, rather than first degree, and the fact that it was unable to reach a verdict as to co-defendant Hinh, indicates that it was not overcome by passion or prejudice due to the admission of the gang affiliation evidence.
B. Denial of Severance
1. Legal Standard
In deciding whether to separately try joint defendants, a court must consider whether "there is a serious risk that a joint trial would compromise a specific trial right of one of the defendants, or prevent the jury from making a reliable judgment about guilt or innocence."Zafiro v. United States, 506 U.S. 534, 539 (1993). However, federal habeas review of a state court's denial of a motion to sever is narrower in scope: the question is whether a misjoinder rose to the level of a due process violation. "Improper joinder does not, in itself, violate the Constitution." United States v. Lane, 474 U.S. 438. 446 n. 8 (1986). Misjoinder rises to the level of a due process violation "only if it results in prejudice so great as to deny defendant his Fifth Amendment right to a fair trial." Id.: accord Grisby v. Blodgett, 130 F.3d 365, 370 (9th Cir. 1997). In determining whether the failure to sever deprived defendant of his right to a fair trial, a federal habeas court does not rely on state law governing severance in state trials, nor does it consider procedural rights to severance afforded in federal trials. See Grisby, 130 F.3d at 370. Petitioner bears the burden of proving that the denial of severance rendered his trial fundamentally unfair. See id.
2. Background
There were originally eight defendants in this case. The trial court split the defendants into two groups in response to defendants' pretrial motions, and at the suggestion of the prosecution. After the first group was tried and convicted, and before the second group (consisting of petitioner and co-defendants Khoa, Sunny, Hinh, and Ho) was tried, petitioner moved to sever his case from the remaining co-defendants.
The petitioner offered the court two reasons as to why his case should have been severed. First, petitioner argued that he would be unfairly prejudiced by the inflammatory gang affiliation evidence which would be offered against his co-defendants, because he was not a gang member, had no affiliation to any gangs, and barely knew his co-defendants. Second, petitioner argued that the prosecution's proposed redactions (of his statements to the police) excluded certain statements regarding one of his co-defendants who threatened petitioner into cooperating in the shooting. Petitioner argued that the redaction prejudiced him by not allowing him to present his defense of imperfect duress. The trial court rejected petitioner's multiple attempts to sever his case from that of his co-defendants.
3. Analysis
Petitioner's claim fails under federal habeas review.
Joint trials "`play a vital role in the criminal justice system.'"Zafiro, 506 U.S. at 537 (citation omitted). Additionally, joint trials "`promote efficiency, and serve the interest of justice by avoiding the scandal and inequity of inconsistent verdicts.'"Id.
a. Gang Affiliation Evidence
As discussed above, the gang affiliation evidence had at least one permissible purpose: to provide motive and intent of one or more co-defendants. The California Court of Appeal concluded that evidence of motive against one co-conspirator or accomplice can be admitted against all co-conspirators and accomplices. Appellate Opinion at 21-22. Therefore, the gang affiliation evidence would likely have been admissible against petitioner even in a separate trial. As such, there would be no reason for severance.
However, even if the gang affiliation evidence was inadmissible as to petitioner, it was admissible as to co-defendants with proven gang affiliations as relevant evidence. "While `[a]n important element of a fair trial is that a jury consider only relevant and competent evidence bearing on the issue of guilt or innocence,' a fair trial does not include the right to exclude relevant and competent evidence."Id. at 540 (citation omitted).
And if the evidence did prejudice the petitioner to some extent, "it is of the type that can be cured with proper instructions." Id. When the risk of prejudice is high, "a district court is more likely to determine that separate trials are necessary, but . . . a less drastic measure, such as limiting instructions, often will suffice to cure any risk of prejudice." Id. at 539. As discussed above, the trial court specifically instructed the jury not to draw impermissible inferences from the gang evidence. Further the prosecutor expressly stated in his closing argument that there was no evidence of petitioner being a gang member, thus restricting the gang evidence to petitioner's co-defendants. These measures were sufficient to cure the risk of any prejudice that may have resulted from the gang affiliation evidence. Finally, the fact that the jury convicted petitioner of second degree murder, rather than first degree, and the fact that it was unable to reach a verdict as to co-defendant Hinh, indicates that it was not overcome by passion or prejudice due to the admission of the gang affiliation evidence. As such, severance was not necessary, and in any case the denial of petitioner's motion to sever did not rise to the level of a due process violation.
b. Redacted Statements
The California Court of Appeal found that the redaction of petitioner's statement to the police did not deprive petitioner of any exculpatory evidence:
Here, the redaction of Son's statement did not require severance. Indeed, the redacted version was more favorable to Son than the unredacted version. The redacted version made it appear that the only reason Son joined the other in perpetrating the May Tiem Café shootings was [because] "they" had "threatened" him. This redacted version permitted Son's trial counsel to argue to the jury at closing argument that Son participated in the May Tiem Café shootings because a group of armed gunmen motivated by revenge were ready to turn their guns on him if he did not join them. The unredacted version would not have permitted Son to make this argument because that version showed that the alleged threat to Son consisted of a single remark by Hinh to Son that "[y]ou better shoot whoever you see." At the time Hinh made this remark to Son, Hinh was unarmed, while Son was armed. Therefore, on the issue of duress, Son's severance request was properly denied by the trial court.
Appellate Opinion at 35.
The California Court of Appeal's conclusion was not error, because the redaction did not "compromise a specific trial right" of the petitioner,Zafiro, 506 U.S. at 539, or render his trial fundamentally unfair. Grisby, 130 F.3d at 370. The redacted version of the audiotape excluded the actual words of the alleged threat, "You better shoot whoever you see." Petitioner's Ex. A at 44, 46. The "threat" came from co-defendant Hinh, who, according to the petitioner, was not "carrying a gun." Id. at 46. The redaction did not deprive petitioner of any exculpatory evidence because, despite the redaction, the jury still heard that petitioner was "threatened." In light of the ambiguous nature of the threat, and the fact that petitioner was armed and Hinh was not, exclusion of the actual words did not compromise petitioner's trial rights or render the trial fundamentally unfair.
Additionally, to the extent that the redacted statement excluded any exculpatory evidence, it did not prevent petitioner's counsel from raising the issue of duress during his closing arguments. Petitioner's counsel argued: "Son's statement is they threatened me, I wasn't sure why I was going in, I was scared. You can see that testimony and hear that testimony." Respondent's Ex. E at 1707. After reminding the jury of that threat two more times, counsel again argued to the jury: "Son told us that the reason he went in the May Tim [sic] was because they threatened him. The statement is unrefuted." Id. at 1709. Petitioner had the opportunity to offer the so-called evidence of duress to the jury, and did so. Redaction of the actual words did not prevent petitioner from presenting his theory to the jury.
C. Extra Security Measures
a. Due Process and Fair Trial Rights Violations
1. Legal Standard
In federal habeas cases this Court's review of security measures is narrow in scope. To determine whether the use of security measures denied a petitioner his right to a fair trial, this Court can only look "at the scene presented to the jurors and determine whether what they saw was so inherently prejudicial as to pose an unacceptable threat to the defendant's right to a fair trial." Holbrook v. Flynn, 475 U.S. 560, 572 (1986). "[I]f the challenged practice is not found inherently prejudicial and if the defendant fails to show actual prejudice, the inquiry is over." Id.
Some security measures, such as shackling, prison clothing, or bindings and gags, necessarily separate a defendant from the community at large, and focus the jury's attention on a defendant's culpability or dangerousness.See id. at 567-69. Other security measures, such as armed guards, are more neutral, and do not necessarily prejudice a defendant.See id. at 69. However, "deployment of excessive number of security personnel in a court room" can undermine the presumption of innocence. United States v. Olvera, 30 F.3d 1195, 1196 (9th Cir. 1994); see also Holbrook, 475 U.S. at 569. "The probability of deleterious effects on fundamental rights calls for close judicial scrutiny." Olvera, 30 F.3d at 1196. Courts must evaluate the likely effects of a particular procedure "based on reason, principle, and common human experience." Id.
b. Right to a Public Trial
Criminal defendants have a federal constitutional right to a public trial. See U.S. Const., amends. VI, XIV: see also Waller v. Georgia, 467 U.S. 39, 46-47 (1984). This right is recognized as a fundamental right of the accused, because it helps ensure a fair trial.Waller, 467 U.S. at 46. With the presence of interested spectators, the trier of fact is "keenly alive to a sense of [its] responsibility and to the importance of [its] functions." Id. It protects the accused by allowing the public to assess the fairness of the proceedings. See id. It also encourages witnesses to come forth and discourages perjury. See id. However, a criminal defendant's right to a public trial is not absolute, and must give way in some cases to other interests essential to the fair administration of justice. See id. at 45.
Additionally, the public and the press have a qualified First Amendment right to attend criminal trials. See Waller. 467 U.S. at 45. Where a trial court orders partial closure of the courtroom, the judge must provide a substantial reason for the exclusion, and the closure must be narrowly tailored to satisfy the purpose for which it was ordered.See United States v. Sherlock, 962 F.2d 1349, 1356 (9th Cir. 1992).
2. Background
Around the time of jury selection, the trial court authorized additional courtroom security measures which the courtroom personnel implemented. Both parties agree as to what measures were employed. One or more bailiffs were stationed at a table outside the courtroom entrance. Before entering the courtroom, members of the public were required to state their names; to state their association with the parties and/or purpose for attending the trial; to present identification if available; and to submit to "wanding" with a hand-held metal detector and cursory search of their purses or bags.
The background information in this section, which is not in dispute, derives almost entirely from Respondent's Exhibits A E, as well as Respondent's Mem. at 22-25.
The bailiffs recorded the spectators' names (and some other information such as addresses) on a written list. The spectators' names were later checked for outstanding warrants. No spectators were allowed to sit in the front row. Spectators with associations with the victims sat on one side, while spectators with associations with defendants sat on the other side. At each recess, the courtroom was cleared of spectators, and the process repeated when the proceedings resumed.
The defendants were not provided advanced notice that these additional security measures would be implemented. Subsequently, defendants filed written motions objecting to the extra security measures on the grounds that they denied defendants' due process and public trial rights. The government filed a written opposition with a supporting 21-page intelligence report, which the court reviewed in camera.
A few days later, the trial court held an evidentiary hearing wherein the sole witness was Santa Clara County Sheriff Department's Sergeant Robert Dixon. He only testified that the extra security measures had been implemented, and that the decision was based on the information contained in the 21-page intelligence report. Sergeant Dixon exercised his official information privilege in response to almost every question by defendants' counsel, on advice of the Santa Clara County Counsel. The trial court stated for the record that courtroom security personnel had presented the intelligence report to the court before implementing additional security measures, and that the court had authorized those measures.
Cal. Evid. Code § 1040 et seq.
Sergeant Dixon acknowledged that the public entrance to the courthouse had a walk through metal detector and an x-ray machine for purses and bags, but noted that these devices were not "foolproof." The sergeant also acknowledged that the additional security measures had not been in place in other courtrooms in the courthouse during the petitioner's trial. The sergeant stated that the bailiffs responsible for spectator screening had been instructed to perform screenings outside the presence of the jury. Finally, the trial court accepted the defendants' claim that the additional security had an "intimidating effect" on some spectators.
3. Analysis
Petitioner's claim fails under federal habeas review.
Petitioner offers three arguments. First, the extra security measures constituted a partial closure of the courtroom, and therefore violated petitioner's right to a public trial. Second, the extra security measures threatened his right to a fair trial because they were inherently prejudicial, and the record contained no justification for them. Third, petitioner was deprived of due process and fair trial rights when the trial court used in camera reports to implement the security measures, and failed to provide him with notice of, and a hearing regarding, the security measures before it implemented them.
a. Violation of Public Trial Due To Security Measures
Petitioner argues, and the trial court conceded, that the extraordinary security measures had an intimidating effect on some of the spectators. As such, petitioner maintains, the security measures constituted a "partial" closure of the proceedings by discouraging public attendees who did not wish to be subject to the security measures.
As noted above, when a trial court orders partial closure of the courtroom, the judge must have a substantial reason for the exclusion, and the closure must be narrowly tailored to satisfy the purpose for which it was ordered. See United States v. Sherlock, 962 F.2d 1349, 1356 (9th Cir. 1992). Some courts have assumed, without deciding, that courtroom security measures could constitute a partial closure. See, e.g., United States v. DeLuca, 137 F.3d 24, 33 (1st Cir. 1998): see also United States v. Brazel, 102 F.3d 1120, 1155 (11th Cir. 1997). For example, the First Circuit assumed that certain security measures could produce a partial closure in judicial proceedings: "The screening and identification procedure employed below effected at most a `partial' closure as it (1) barred only those would-be spectators who opted not to submit [to the security measure], and (2) presumably may have `chilled' attendance by some potential spectators who opted not to present themselves at the courthouse." DeLuca, 137 F.3d at 33.
In the instant case, the California Court of Appeal concluded that the security measures did not constitute a partial closure. Appellate Opinion at 25. That conclusion was not contrary to, or an unreasonable application of, Supreme Court precedent. Indeed, petitioner does not cite any Supreme Court precedent in support of its partial closure argument. The Court of Appeal reasoned that, unlike a total closure, these security measures did not unconditionally exclude all members of the public from attending the proceedings. They simply provided certain security procedures that were universally applied. While it is possible that some who did not wish to be subject to the security measures opted to not attend, this was a personal choice, and not one mandated by a blanket judicial decision to deny access to the proceedings.
Even assuming, arguendo, that the security measures amounted to a partial closure of the proceedings, the trial court had substantial reason to require additional security measures. The trial court's authorization of the extra security measures may not have been as narrowly tailored as possible. However, it is not this Court's task "to determine whether it might have been feasible for the State to have employed less conspicuous security measures in the courtroom."Holbrook, 475 U.S. at 572. In such cases, "`where only a partial closure is involved, a court must look to the particular circumstances to see if the defendant still received the safeguards of the public trial guarantee.'" Sherlock, 962 F.2d at 1357 (citation omitted). In light of the trial court's justification, and because partial closures are subject to "a more lenient test" than total closures, Sherlock, 962 F.2d at 1357, this Court is satisfied that the trial court's additional security measures were sufficiently tailored, and therefore did not violate petitioner's right to a public trial.
b. Violation of Right to a Fair Trial Due To Security Measures
Based on the documents submitted under seal, this Court is satisfied that the trial court had sufficient justification for certain extraordinary security measures.
Further, the record does not support a finding that the security measures were so inherently prejudicial as to pose an unacceptable threat to the petitioner's right to a fair trial. The security measures chosen by the trial court were not similar to shackling the petitioner or presenting him to the jury in prison clothing. As previously noted, additional guards and metal detectors are not inherently prejudicial, and the petitioner has not alleged that there were so many guards present as to undermine his presumption of innocence. See United States v. Olvera, 30 F.3d 1195, 1196 (9th Cir. 1994): see also Holbrook, 475 U.S. at 569.
As Sergeant Dixon stated, the courtroom security personnel were instructed to screen spectators outside of the jury's view. The jury walked past the bailiffs every day, and saw them standing at the entrance, but the jury did not observe the bailiffs wanding the spectators; the jury did not observe the bailiffs searching the belongings of the spectators; and the jury did not observe the bailiffs writing down the spectators' information. None of the courtroom security measures called specific attention to any particular defendant. The jury may have inferred that it was the nature of the case, rather than the character of the defendants, which required such measures.
While the security measures may have been more excessive than absolutely necessary, the scene presented to the jurors was not an unacceptable threat to petitioner's right to a fair trial. In short, although the extra security measures may have been somewhat prejudicial to the petitioner, in light of the trial court's justifications, they were not so inherently prejudicial as to violate due process.
c. Violation of Due Process and Fair Trial Rights Due To the Use of In Camera Reports and Denial of Evidentiary Hearing.
Finally, petitioner argues that the trial court's decision to allow additional security measures was based on secret intelligent reports which were never disclosed to the defense. Additionally, the evidentiary hearing held on the security issue failed to provide any evidence which justified the implemented security procedures because the only witness essentially invoked a blanket official immunity. Thus, petitioner argues that he was denied due process and fair trial rights because he was deprived of any reasonable opportunity to argue against the security measures or suggest less prejudicial alternatives. Petitioner does not cite to any United States Supreme Court authority holding that petitioner had a constitutional right to notice of, or hearing regarding, courtroom security measures.
This matter was before the California Court of Appeal when co-defendant Khoa raised the issue in his state appeal. The California Court of Appeal concluded that the trial court's decision was likely a procedural due process violation. Appellate Opinion at 25. Although the documents were submitted to the court in camera, the trial court could have given the petitioner some general information, describing general concerns, without revealing any confidential information. Equipped with at least a minimal level of information, the petitioner could have attempted to convince the court not to implement the security measures, or to impose a less prejudicial alternative. Instead, the trial court refused petitioner any opportunity to argue against measures that were potentially prejudicial.
However, as did the California Court of Appeal, this Court finds that the error is a "trial error" subject to harmless error evaluation underChapman v. California, 386 U.S. 18, 24 (1967) (a federal court can find a constitutional error harmless if the court can declare the belief that the error was harmless beyond a reasonable doubt). The record does not indicate that different security measures would have influenced or affected the course of the trial. This can be evidenced by the fact that the jury failed to convict co-defendant Hinh even though he was subject to the same prejudice from the security measures as petitioner. Additionally, there was more than sufficient evidence to convict petitioner of second degree murder charges, absent the security measures. As such, the error was harmless beyond a reasonable doubt.
D. Denial of Due Process and Fair Trial by Cumulative Effect of Rulings
Petitioner claims that he was denied his rights to due process and fair trial due to the cumulative effect of the trial court's challenged rulings. As discussed below, this Court finds that petitioner's final claim is unexhausted, and therefore not subject to federal habeas relief. However, even if petitioner's claim were exhausted, this Court finds that petitioner's claim fails under federal habeas relief.
1. Legal Standard
In order for a state prisoner to seek federal habeas relief, the prisoner must first exhaust his available state remedies. 28 U.S.C. § 2254(b); O'Sullivan v. Boerckel, 526 U.S. 838, 842 (1999). In other words, the state prisoner must give the state courts "a full and fair opportunity to resolve federal constitutional claims before those claims are presented to the federal courts." Id. at 845 (emphasis added). The exhaustion rule is important because it helps reduce friction between the state and federal court systems by avoiding the unseemliness of a federal court overturning a state court conviction, without the state court having had an opportunity to correct the constitutional violation. See id.
It is not enough to present a state court with the facts necessary to state a claim. See Gray v. Netherland, 518 U.S. 152, 163 (1996). Generally claiming the violation of a constitutional guarantee is also insufficient. See id. A state prisoner must present the particular legal theory supporting each claim. See id. The claim must be presented to the highest court with the jurisdiction to hear it. See James v. Giles, 221 F.3d 1074, 1077 n. 3 (9th Cir. 2000). Petitioner's claims will be considered exhausted if they are procedurally barred in state court. See Gray, 518 U.S. at 161.
2. Background
Petitioner did not raise the claim that he was denied his right to due process and a fair trial due to the cumulative effect of the trial court's challenged ruling in his petition for review before the California Supreme Court. Petitioner did raise every other claim in this petition before the California Supreme Court.
3. Analysis
Petitioner argues that claim is exhausted because he raised all the other claims before the California Supreme Court and this claim is merely a cumulation of all of those. Petitioner argues that this claim does not fundamentally alter the claims made all along and the state court has already had the opportunity to review his claims individually, and as they interconnect. In asking this Court to review the cumulative error of the state court, petitioner relies onWhelchel v. Washington, which states that [u][c]umulative error applies where, `although no single trial error examined in isolation is sufficiently prejudicial to warrant reversal, the cumulative effect of multiple errors [has] still prejudice[d] a defendant.'" 232 F.3d 1197, 1212 (9th Cir. 2000) (citation omitted).
Petitioner's argument might be persuasive if the individual review of his claims involved the same legal standard and analysis as a cumulative review of the same claims. Even though the underlying claims and facts are the same, the cumulative effect claim itself requires a different legal standard and analysis, one that the state court did not review. The state court reviewed the facts and attempted to determine whether any individual claim violated a constitutional guarantee. There is no indication in the record that the state court applied a cumulative effect analysis. Petitioner must present "the state courts with the same claim he urges upon the federal courts."Picard v. Connnor, 404 U.S. 270, 276 (1971) (emphasis added). Given that there was a different legal standard and analysis for this claim, this Court "cannot fault [the state court] for failing also to consider [it] sua sponte." Gray, 518 U.S. at 163.
Where there are multiple errors at trial, "`a balkanized, issue-by-issue harmless error review' is far less effective." Alcala v. Woodford, 334 F.3d 862, 883 (2003) (citation omitted). Rather, the court should "analyz[e] the overall effect of the errors in the context of the evidence introduced at trial against the defendant."Id.
Because the state court did not get "a full and fair opportunity" to resolve this constitutional claim, and because the petitioner did not present the state court with "the same claim," this claim is unexhausted and not subject to federal habeas review, unless it is procedurally barred in state court.
In any event, even if the claim was exhausted, it nonetheless fails. The Court has concluded that there were no cumulative errors. It was not error to admit evidence of gang affiliation, to deny petitioner's multiple requests for severance, or to employ the extraordinary security measures. The only error was the violation of petitioner's right to procedural due process, which resulted from the lack of notice and opportunity to heard before the additional security measures were implemented. Where there is only one error on appeal, the "cumulative error analysis is not triggered." United States v. Geston, 299 F.3d 1130, 1138 (9th Cir. 2002). In any case, the one error was harmless beyond a reasonable doubt.
IV. CONCLUSION
For the foregoing reasons, Son Nguyen's petition for writ of habeas corpus is DENIED.
IT IS SO ORDERED.
JUDGMENT
The Court having denied the petition for habeas corpus by Memorandum and Order dated December 5, 2003, it is hereby ordered that judgment be entered in favor of Respondent and against Petitioner.