Opinion
No. CIV S-02-2321 FCD EFB P.
November 4, 2008
FINDINGS RECOMMENDATIONS
Petitioner is a state prisoner proceeding in propria persona with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges a 2000 judgment of conviction entered against him in the Sacramento County Superior Court on the charge of robbery. He seeks relief on the grounds that: (1) the trial court's failure to give a sua sponte jury instruction on the inherent unreliability of cross-racial identification prevented him from presenting his defense and violated his right to due process; (2) his trial counsel's failure to request a jury instruction on the inherent unreliability of cross-racial identification constituted ineffective assistance of counsel; (3) the use of CALJIC No. 17.41.1 violated his right to a fair trial; (4) his constitutional rights were violated by the prosecutor's improper use of peremptory challenges to exclude a black juror; and (5) the prosecutor committed misconduct when he commented on petitioner's failure to testify and the trial court erred when it failed to grant a motion for new trial on this basis. Upon careful consideration of the record and the applicable law, the undersigned recommends that petitioner's application for habeas corpus relief be denied.
PROCEDURAL AND FACTUAL BACKGROUND
This statement of facts is taken from the March 8, 2002, opinion by the California Court of Appeal for the Third Appellate District (hereinafter Opinion), at pgs. 2-3, appended as Exhibit D to Respondent's Answer, filed on March 24, 2003. This court presumes that the state court's findings of fact are correct unless petitioner rebuts that presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1); Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004). Petitioner has not attempted to overcome the presumption with respect to the underlying events. The court will therefore rely on the state court's recitation of the facts.
Viewed in the light most favorable to the judgment, the evidence at trial showed defendant walked up to the victim, wrested her purse from her and ran away. The victim screamed for help and ran after him. Three men heard her scream and either witnessed or joined in the pursuit. One of the men eventually tackled defendant and held him down until law enforcement officers arrived.
Defendant was charged with one count of robbery (Pen. Code, § 211). An initial trial ended in a mistrial due to jury deadlock. At the second trial, the defense theory was misidentification. Defense counsel argued defendant was a "fourth Good Samaritan" who had joined in the pursuit of the actual robber but was then mistaken for the robber by the victim and the three eyewitnesses after they each lost sight of the robber for a time.
During jury selection, the prosecutor exercised a peremptory challenge to excuse a prospective juror who was African-American, and defendant made a Wheeler motion, which the trial court denied.
At trial, the victim identified defendant as her robber and the three witnesses all identified defendant as the man they had pursued or had seen being pursued. The court instructed the jury with CALJIC No. 2.92 regarding the factors the jury should consider in determining what weight to give the eyewitness identifications of defendant. Among other things, the court told the jury it should consider "[t]he cross racial or ethnic nature of the identification." In closing argument, defense counsel went through the various factors, challenging the reliability of the identifications. Because defendant is African-American, and the victim and the three witnesses are not, defense counsel argued the cross-racial nature of the identifications weighed against their reliability.
The jury found defendant guilty. The court sentenced defendant to the low term of two years for the robbery, doubled for a prior serious felony conviction, with an additional five-year mandatory term as well, for an aggregate term of nine years in prison.
Petitioner filed a timely appeal of his conviction in the California Court of Appeal, raising the same claims he raises in the instant petition. Answer, Ex. D. All of petitioner's claims were denied on the merits in a reasoned decision. Id. On April 17, 2002, petitioner filed a petition for review in the California Supreme Court. Answer, Ex. E. That petition was summarily denied by order filed May 22, 2002. Answer, Ex. F.
ANALYSIS
I. Standards for a Writ of Habeas Corpus
Federal habeas corpus relief is not available for any claim decided on the merits in state court proceedings 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).
Under section 2254(d)(1), a state court decision is "contrary to" clearly established United States Supreme Court precedents "if it `applies a rule that contradicts the governing law set forth in [Supreme Court] cases', or if it `confronts a set of facts that are materially indistinguishable from a decision'" of the Supreme Court and nevertheless arrives at a different result. Early v. Packer, 573 U.S. 3, 8 (2002) (quoting Williams v. Taylor, 529 U.S. 362, 405-406 (2000)).
Under the "unreasonable application" clause of section 2254(d)(1), 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. Williams, 529 U.S. at 413. A federal habeas court "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. Rather, that application must also be unreasonable." Id. at 412; see also Lockyer v. Andrade, 538 U.S. 63, 75 (2003) (it is "not enough that a federal habeas court, in its independent review of the legal question, is left with a `firm conviction' that the state court was `erroneous.'")
The court looks to the last reasoned state court decision as the basis for the state court judgment. Avila v. Galaza, 297 F.3d 911, 918 (9th Cir. 2002). Where the state court reaches a decision on the merits but provides no reasoning to support its conclusion, a federal habeas court independently reviews the record to determine whether habeas corpus relief is available under section 2254(d). Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000).
II. Petitioner's Claims
A. Jury Instruction Error
Petitioner raises two claims of jury instruction error. After setting forth the applicable legal principles, the court will evaluate these claims in turn below.
1. Legal Standards
In general, a challenge to jury instructions does not state a federal constitutional claim. Middleton v. Cupp, 768 F.2d 1083, 1085 (9th Cir. 1985) (citing Engle v. Isaac, 456 U.S. 107, 119 (1982)); Gutierrez v. Griggs, 695 F.2d 1195, 1197 (9th Cir. 1983). In order to warrant federal habeas relief, a challenged jury instructions "cannot be merely `undesirable, erroneous, or even "universally condemned,'" but must violate some due process right guaranteed by the fourteenth amendment." Prantil v. California, 843 F.2d 314, 317 (9th Cir. 1988) (quoting Cupp v. Naughten, 414 U.S. 141, 146 (1973)). To prevail on such a claim petitioner must demonstrate "that an erroneous instruction `so infected the entire trial that the resulting conviction violates due process.'" Prantil, 843 F.2d at 317 (quoting Darnell v. Swinney, 823 F.2d 299, 301 (9th Cir. 1987)). See also Estelle v. McGuire, 502 U.S. 62, 72 (1991). In making its determination, this court must evaluate the challenged jury instructions "`in the context of the overall charge to the jury as a component of the entire trial process.'" Prantil, 843 F.2d at 817 (quoting Bashor v. Risley, 730 F.2d 1228, 1239 (9th Cir. 1984)). Where the challenge is to a refusal or failure to give an instruction, the petitioner's burden is "especially heavy," because "[a]n omission, or an incomplete instruction, is less likely to be prejudicial than a misstatement of the law." Henderson v. Kibbe, 431 U.S. 145, 155 (1977). See also Villafuerte v. Stewart, 111 F.3d 616, 624 (9th Cir. 1997).
2. Sua Sponte Instruction on Cross-Racial Identification
Petitioner's first claim is that the trial court violated his right to due process and to present a defense when it failed to "give sua sponte a cautionary instruction on the inherent unreliability of cross-racial identification." Pet. at 5. The last reasoned rejection of this claim is the decision of the California Court of Appeal on petitioner's direct appeal. The state court denied the claim with the following reasoning:
As noted above, the court instructed the jury with CALJIC No. 2.92 regarding the factors for the jury to consider in determining what weight to give the eyewitness identifications of defendant. Among other things, the court told the jury it should consider "[t]he cross [-] racial or ethnic nature of the identification." Defendant contends this instruction was deficient because it "did nothing [to] educate the jury on the perils of cross-racial identification." Defendant contends the court had a duty to instruct the jury not only that it should consider the cross-racial nature of the identification, but that cross-racial identifications are inherently unreliable. Defendant is mistaken; the court had no such duty.
"A criminal defendant `is entitled to an instruction that focuses the jury's attention on facts relevant to its determination of the existence of reasonable doubt regarding identification, by listing, in a neutral manner, the relevant factors supported by the evidence.' [Citations.] An explanation of the effects of such factors, however, `is best left to argument by counsel, cross-examination of the eyewitnesses, and expert testimony where appropriate.'" ( People v. Rudge (1994) 7 Cal.4th 1075, 1110.) "The instruction should not take a position as to the impact of each of the psychological factors listed. . . . An instruction that `explained' the influence of the various psychological factors would of necessity adopt the views of certain experts and incorporate the results of certain psychological studies while discounting others. It would require the trial judge to endorse, and require the jury to follow, a particular psychological theory relating to the reliability of eyewitness identifications. Such an instruction would improperly invade the domain of the jury, and confuse the roles of expert witnesses and the judge." ( People v. Wright (1988) 45 Cal.3d 1126, 1141 ( Wright).)
The trial court here fulfilled its duty under Wright by instructing the jury that it should consider the cross-racial nature of the identifications in deciding what weight to give those identifications. The court had no further duty to instruct the jury that cross-racial identifications are unreliable; indeed, such an instruction would itself have been error under Wright. It was up to defense counsel to argue the identifications were unreliable because they were cross-racial, which counsel did. The court had no obligation to put its stamp of approval on that argument.
Citing People v. Sutton (1964) 231 Cal.App.2d 511 ( Sutton), defendant contends the court has a sua sponte duty to give a cautionary instruction "[w]henever evidence must be viewed with a caution." Sutton is of no assistance to defendant. In Sutton, the appellate court concluded the trial court did not err when it failed to instruct the jury, sua sponte, that a witness's commission of a felony is not to be presumed from mere incarceration. ( Id. at pp. 514-516.) In reaching that conclusion, the court observed: "The trial judge is required to instruct only on general principles which are necessary for the jury's understanding of the case and he need not instruct without request, on specific points which might be applicable to the particular case. [Citation.] However, where the judge has a duty to instruct without request on the general principles of law governing the case, failure to perform that duty may be reversible error." ( Id. at pp. 515-516.)
This observation from Sutton highlights the fatal flaw in defendant's argument. A trial court has a sua sponte duty to instruct the jury only "on the general principles of law governing the case." ( People v. Sutton, supra, 231 Cal.App.2d at p. 516, italics added.) The unreliability of cross-racial identifications is not a principle of law; it is a particular psychological theory relating to the reliability of eyewitness identifications.
Defendant also contends a cautionary instruction regarding the unreliability of cross-racial identifications was required because part of his defense theory was that the eyewitness identifications were unreliable because they were cross-racial. It is true a court has an "affirmative duty to give, sua sponte, a correctly phrased instruction on defendant's theory." ( People v. Stewart (1976) 16 Cal.3d 133, 140.) Once again, however, that duty extends only to instructing the jury "`on the general principles of law relevant to the issues raised by the evidence.'" ( Ibid., quoting People v. St. Martin (1970) 1 Cal.3d 524, 531.) Since the unreliability of cross racial identifications is not a principle of law, the trial court had no duty to instruct the jury as defendant suggests.
Opinion at 10-13.
This court agrees with the state appellate court that, under the circumstances of this case, the trial court's failure to give a sua sponte jury instruction to the effect that cross-cultural identification is inherently unreliable did not render petitioner's trial fundamentally unfair. As described above, petitioner's jurors were instructed with CALJIC No. 2.92 on "factors to consider in proving identity by eyewitness testimony." Clerk's Transcript on Appeal (CT) at 114-15. This instruction informed the jurors that a number of factors could affect the reliability and accuracy of eyewitness identification. Id. Among those factors were the opportunity of the witness to observe the events and the perpetrator, the stress to which the witness was subjected, "the cross-racial or ethnic nature of the identification," and "any other evidence relating to the witness' ability to make an identification." Id. This instruction and the considerable attention focused by trial counsel on the identification issue sufficiently alerted the jurors to the fact that they should carefully and critically evaluate the strength of the eyewitness testimony. Other related jury instructions fully covered the elements required to find a defendant guilty beyond a reasonable doubt, emphasized the government's burden of proof with respect to whether petitioner was the person who committed the robbery, and informed the jurors that they had an exclusive role in assessing the credibility and weight of the evidence. Id. at 98, 112-13. During closing argument, petitioner's counsel asserted that cross-racial identification was a factor that weighed against the reliability of the witness identifications. Reporter's Transcript on Appeal (RT) at 404. Indeed, throughout the argument, counsel focused heavily on the possibility of misidentification. Id. at 379-415. Defense counsel also cross-examined the eyewitnesses thoroughly in order to highlight any weaknesses in their identification of petitioner as the suspect. Under these circumstances, petitioner has failed to carry his "heavy" burden to show that the trial court's failure to instruct the jury on the inherent unreliability of cross-racial identification rendered his trial fundamentally unfair.
Petitioner argues that the trial court's failure to give a sua sponte jury instruction that cross-racial identification is inherently unreliable violated his right to present his defense. In federal court, as in state court, "a criminal defendant is entitled to have a jury instruction on any defense which provides a legal defense to the charge against him and which has some foundation in the evidence, even though the evidence may be weak, insufficient, inconsistent, or of doubtful credibility." United States v. Escobar de Bright, 742 F.2d 1196, 1198 (9th Cir. 1984) (quoting United States ex rel. Peery v. Sielaff, 615 F.2d 402, 403 (7th Cir. 1979)). See also Bradley v. Duncan, 315 F.3d 1091, 1097 (9th Cir. 2002) (quoting Mathews v. United States, 485 U.S. 58, 63 (1988)). Failure to correctly instruct the jury on the defendant's theory of defense may constitute a due process violation. Bradley, 315 F.3d at 1099.
As explained by the California Court of Appeal, petitioner's defense was that the eyewitnesses mistakenly identified him as the perpetrator of the robbery, in part because they were not of the same race as petitioner. In support of this defense, petitioner's jury was instructed that numerous factors, including the cross-racial nature of an identification, could have a negative bearing on the accuracy of the witness' identification of petitioner as the perpetrator. CT at 114. This instruction adequately covered petitioner's defense theory. An additional instruction that cross-racial identification is inherently suspect was unnecessary and would, as explained by the state court, go beyond a mere recitation of the law and venture into an improper invasion of the exclusive province of the jury to decide the weight of the evidence. This court also notes that simply because the witnesses were not of the same race as petitioner does not mean their identification of him as the perpetrator was wrong. This was simply one factor for the jury to consider in deciding the credibility of the identifications in this case.
Finally, petitioner has not cited any United States Supreme Court case holding that a failure to inform a jury that cross-racial identification is inherently unreliable violates a criminal defendant's due process right to a fair trial or his right to present a defense based on mistaken identity. The Court of Appeals for the Ninth Circuit has held to the contrary in the context of a federal criminal trial. See United States v. Amaral, 488 F.2d 1148, 1151 (9th Cir. 1973) (holding that it is not plain error for a district court to fail to give a jury instruction sua sponte on the "inherent unreliability" of eyewitness identification). Thus, petitioner has failed to demonstrate that the state court decision rejecting his claim of jury instruction error was contrary to or an unreasonable application of federal law, as determined by the United States Supreme Court. See Moses v. Payne, ___ F.3d ___, 2008 WL 4192031 (9th Cir. (Wash.)), at *6 (where no decision of the United States Supreme Court squarely addresses an issue, a state court's adjudication of that issue cannot result in a decision that is contrary to, or an unreasonable application of Supreme Court precedent).
For all of the foregoing reasons, petitioner is not entitled to relief on this claim.
3. Use of CALJIC No. 17.41.1
Petitioner's jury was instructed with CALJIC No. 17.41.1, which provides as follows:
The integrity of a trial requires that jurors, at all times during their deliberations, conduct themselves as required by these instructions. Accordingly, should it occur that any juror refuses to deliberate or expresses an intention to disregard the law or to decide the case based on [penalty or punishment, or] any [other] improper basis, it is the obligation of the other jurors to immediately advise the Court of the situation.
CT at 205. Petitioner claims that this jury instruction violates the First Amendment rights of the jurors because it exerts "a powerful chilling effect" on juror deliberations "by threatening jurors with the prospect that their every word may be reported to the trial court any time that even one other fellow juror imagines an impropriety." Pet. at consecutive p. 18. In its decision on petitioner's direct appeal, the California Court of Appeal concluded that CALJIC No. 17.41.1 was not erroneous and that petitioner had failed to demonstrate prejudice. Opinion at 14-22.
After the state appellate court issued its decision in this case, the California California Supreme Court held that CALJIC 17.41.1 did not infringe upon defendant's federal or state constitutional right to trial by jury or his state constitutional right to a unanimous jury verdict. People v. Engelman, 28 Cal.4th 436 (2002). However, using its supervisory authority over the lower state courts, the Supreme Court discontinued use of CALJIC No. 17.41.1 because of its "potential" to intrude on jury deliberations. Id.
Petitioner's claim is foreclosed by the Ninth Circuit's decision in Brewer v. Hall, 378 F.3d 952, 955-57 (9th Cir. 2004). In Brewer, the court held that, regardless of the "constitutional merits" of CALJIC No. 17.41.1, habeas relief was unavailable because there is "no Supreme Court precedent clearly establishing" that use of the instruction violates a defendant's constitutional rights. Id. at 955-56. Here, as in Brewer, petitioner "has pointed to no Supreme Court precedent clearly establishing that CALJIC 17.41.1 — either on its face or as applied to the facts of his case — violated his constitutional rights." Id. at 957. Thus, the state court's rejection of Petitioner's claim was not contrary to or an unreasonable application of clearly established Supreme Court precedent. 28 U.S.C. § 2254(d). See Moses, 2008 WL 4192031 at *6.
Even if the instruction were erroneous, the error in this case was harmless under Brecht v. Abrahamson, 507 U.S. 619, 623 (1993) (holding that a federal court may not grant habeas relief for trial errors without a showing of actual prejudice, defined as a "substantial and injurious effect or influence in determining the jury's verdict"). Petitioner's jury quickly reached a verdict without apparent difficulty. Unlike the situation in Brewer, petitioner's jurors did not ask any questions or communicate with the court in any way before finding petitioner guilty. There is simply no indication that the giving of CALJIC No. 17.41.1 chilled the jurors' exercise of free speech or prevented free and full deliberations. The conclusion of the state appellate court that the giving of CALJIC No. 17.41.1 in this case did not result in prejudice is not unreasonable. Accordingly, petitioner is not entitled to relief on this claim.
B. Ineffective Assistance of Counsel
Petitioner's claim of ineffective assistance of trial counsel is set forth in a handwritten section attached to the body of his habeas petition. The claim is not listed in the main (typewritten) body of the petition. It is not clear whether petitioner intends to raise in this court the claims contained in the handwritten pages, or whether petitioner is simply describing claims raised in the state courts. However, respondent has addressed petitioner's claim of ineffective assistance of trial counsel on the merits. Answer at 9-11. Accordingly, in an abundance of caution, this court will also address petitioner's claim of ineffective assistance of counsel in these findings and recommendations.
Petitioner argues that his trial counsel rendered ineffective assistance when he failed to request a jury instruction to the effect that cross-racial identification is inherently unreliable.
The Sixth Amendment guarantees the effective assistance of counsel. The United States Supreme Court set forth the test for demonstrating ineffective assistance of counsel in Strickland v. Washington, 466 U.S. 668 (1984). To support a claim of ineffective assistance of counsel, a petitioner must first show that, considering all the circumstances, counsel's performance fell below an objective standard of reasonableness. Id. at 687-88. After a petitioner identifies the acts or omissions that are alleged not to have been the result of reasonable professional judgment, the court must determine whether, in light of all the circumstances, the identified acts or omissions were outside the wide range of professionally competent assistance. Id. at 690; Wiggins v. Smith, 539 U.S. 510, 521 (2003). Second, a petitioner must establish that he was prejudiced by counsel's deficient performance. Strickland, 466 U.S. at 693-94. Prejudice is found where "there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different." Id. at 694. A reasonable probability is "a probability sufficient to undermine confidence in the outcome." Id. See also Williams, 529 U.S. at 391-92; Laboa v. Calderon, 224 F.3d 972, 981 (9th Cir. 2000). A reviewing court "need not determine whether counsel's performance was deficient before examining the prejudice suffered by the defendant as a result of the alleged deficiencies. . . . If it is easier to dispose of an ineffectiveness claim on the ground of lack of sufficient prejudice . . . that course should be followed." Pizzuto v. Arave, 280 F.3d 949, 955 (9th Cir. 2002) (quoting Strickland, 466 U.S. at 697).
Petitioner has failed to demonstrate prejudice with respect to this claim. For the reasons described above, there is no reasonable probability that, but for counsel's failure to request a jury instruction to the effect that cross-racial identifications are inherently unreliable, the result of the proceedings would have been different. Even if petitioner's trial counsel had succeeded in persuading the trial judge to give such an instruction, there is no reasonable probability the jury would have reached a different verdict. Petitioner's jury was instructed to consider the "cross-racial" nature of the witness identifications, and this factor was stressed to the jury by petitioner's counsel in closing argument. The instruction suggested by petitioner would have added nothing of significance to the information already before the jury. Because of petitioner's failure to demonstrate prejudice, this claim should be denied.
C. Use of Peremptory Challenge
Petitioner claims that his conviction must be reversed because the prosecutor exercised a peremptory challenge to strike a juror on the basis of race, in violation of Batson v. Kentucky, 476 U.S. 79 (1986).
1. State Court Decision
The California Court of Appeal denied petitioner's Batson/Wheeler claim, concluding that petitioner had failed to make a prima facie showing that the prosecutor's challenge to the juror in question was based on race. The Court of Appeal explained the relevant facts and its legal analysis as follows:
Defendant contends the trial court erred in denying his Wheeler motion after the prosecutor used a peremptory challenge against a prospective juror who was African-American because the timing of the prosecutor's challenge established a reasonable inference the challenge was based on the prospective juror's race. In denying defendant's motion, the trial court implicitly found defendant had failed to make a prima facie showing the challenge was based on race. Because there is substantial evidence in the record to support that finding, we conclude the trial court did not err in denying defendant's Wheeler motion.
The facts relevant to this claim of error are as follows: Defendant is African-American, as was R.E., one of the prospective jurors on the initial panel of 12. After the initial panel and six other prospective jurors were questioned by the court and counsel, each side exercised three peremptory challenges. The prosecutor then indicated the People would accept the jury. The panel at that time included six of the original panel of 12, including R.E., and the other six prospective jurors who had been questioned. Defense counsel, however, exercised another peremptory challenge, and seven new prospective jurors were called. After the new prospective jurors were questioned, each side exercised one more peremptory challenge, and the prosecutor again indicated the people would accept the jury, which still included R.E. Defense counsel, however, exercised another peremptory challenge, which was followed by another challenge from the prosecutor. The vacant seat on the panel (No. 7) was then filled by another African-American, and defense counsel passed for the first time. At this point, the prosecutor exercised a peremptory challenge to excuse R.E. Defense counsel asked to approach and objected to the prosecutor's use of a peremptory challenge against R.E. under Wheeler. The court denied defendant's Wheeler motion off the record and proceeded with peremptory challenges. Defense counsel and the prosecutor both passed and the jury was sworn after two alternates were selected.
That afternoon, the court allowed defense counsel to make a record of his Wheeler motion. Defense counsel informed the court the first trial had resulted in a mistrial because an African-American juror had held out for acquittal. Counsel then pointed out that the prosecutor had "once, if not more times" accepted the jury with R.E. on it, only to challenge her when a second African-American was seated. Counsel claimed he had made out a prima facie case of a Wheeler violation because the prosecutor had expressed satisfaction with the jury with R.E. on it and because the lone holdout at the first trial had been African-American. The prosecutor responded that he was not trial counsel at the previous trial and did not know if the holdout had been an African-American. The prosecutor also contended defendant had failed to make a prima facie showing of a Wheeler violation, stating: "There are reasons that [R.E.] stated, and her demeanor here in court speaks for why I would exercise a peremptory challenge. [If] [t]he Court feels a prima facie case can be made I could state my reasons for the record, but I don't think I'm required to do so at this point." The court asked if defense counsel had anything else, and when counsel said "No," the court denied the motion without further inquiry.
"It is well settled that the use of peremptory challenges to remove prospective jurors solely on the basis of a presumed group bias based on membership in a racial group violates both the state and federal Constitution." ( People v. Turner (1994) 8 Cal.4th 137, 164.) "Under Wheeler, there is a presumption that a prosecutor uses his peremptory challenges in a constitutional manner. [Citation.] The defendant bears the burden to show, prima facie, the presence of purposeful discrimination. [Citation.] If he succeeds, the burden shifts to the prosecutor to show its absence." ( People v. Alvarez (1996) 14 Cal.4th 155, 193.)
"Under Wheeler and Batson [v. Kentucky (1986) 476 U.S. 79, 89 ( 90 L.Ed.2d 69)], "`[i]f a party believes his opponent is using his peremptory challenges to strike jurors on the ground of group bias alone, he must raise the point in timely fashion and make a prima facie case of such discrimination to the satisfaction of the court. First, . . . he should make as complete a record of the circumstances as is feasible. Second, he must establish that the persons excluded are members of a cognizable group within the meaning of the representative cross-section rule. Third, from all the circumstances of the case he must show a strong likelihood [or reasonable inference] that such persons are being challenged because of their group association. . . .'" ( People v. Box (2000) 23 Cal.4th 1153, 1187-1188.)
"The trial court's determination that no prima facie showing of group bias has been made is subject to review to determine whether it is supported by substantial evidence. [Citation.] We examine the record of the voir dire and accord particular deference to the trial court as fact finder, because of its opportunity to observe the participants at first hand." ( People v. Jenkins (2000) 22 Cal.4th 900, 993-994.) "When a trial court denies a Wheeler motion because it finds no prima facie case of group bias was established, the reviewing court considers the entire record of voir dire.' [Citation.] `If the record "suggests grounds upon which the prosecutor might reasonably have challenged" the jurors in question, we affirm.'" ( People v. Box, supra, 23 Cal.4th at p. 1188.)
Here, the record does suggest grounds on which the prosecutor might reasonably have challenged R.E. During voir dire, R.E. indicated her brother had been arrested for a felony and incarcerated the year before. The incarceration of her brother was a ground on which the prosecutor could reasonably have challenged R.E. because it was evidence she could be biased against the prosecution. ( See People v. Douglas (1995) 36 Cal.App.4th 1681, 1689-1690 [finding reasonable use of peremptory challenge when family members of prospective juror had criminal records.].) In fact, immediately before excusing R.E., the prosecutor excused another prospective juror who had stated he knew some people who were involved with the criminal justice system. This tends to bolster the suggestion the prosecutor excused R.E. because of her brother's incarceration.
In addition, the prosecutor referred to R.E.'s "demeanor here in court" as a reason why he exercised a peremptory challenge against her. Although R.E.'s demeanor is not apparent on the face of the record on appeal, the trial court certainly was in a position to evaluate whether that factor could have played a legitimate role in the prosecutor's peremptory challenge of R.E. "[S]ubjective factors, not apparent on the record or easily articulable, may legitimately play a critical role in an attorney's exercise of a peremptory challenge." ( People v. Jackson (1996) 13 Cal.4th 1164, 1249.) That is the reason "we generally defer to the findings of the trial court." ( Ibid.)
Defendant contends any explanation for the prosecutor's challenge of R.E. other than her race "must be rejected as highly implausible because the prosecut[or] twice accepted the jury panel when it included" R.E. and challenged her only after another African-American was seated on the jury. The timing of the prosecutor's challenge, however, does not compel us to overturn the trial court's implied finding the challenge was not race-based. It is not unusual for counsel to exercise peremptory challenges based on the composition of the jury as a whole. As our Supreme Court has acknowledged: "It is clear that knowledge of the composition of the entire panel can be relevant to the informed exercise of a peremptory challenge against a particular juror." ( People v. Wright (1990) 52 Cal.3d 367, 397.) That the prosecutor was twice satisfied with a panel that included R.E., but later changed his mind when another prospective juror who was also African-American was seated, does not lead inexorably to the conclusion the prosecutor's dissatisfaction with R.E. must have been motivated by a desire to limit the jury to one African-American. Any number of factors may have played into the prosecutor's determination that the panel's composition was unacceptable when he finally decided to excuse R.E. In this regard, it is significant to note the prosecutor initially accepted a panel that included prospective juror M.J., but then exercised his very next peremptory challenge to excuse M.J. after defense counsel had excused another prospective juror. That another prospective juror suffered the same fate as R.E. undercuts defendant's suggestion that the timing of the prosecutor's peremptory challenge of R.E. proves the challenge must have been race-based.
Defendant also contends the prosecutor's challenge of R.E. must have been based on her race because "the prosecutor showed a keen interest in whether she thought that African [-] Americans were treated unfairly by the criminal justice system." The record shows that after eliciting from R.E. the fact her brother was incarcerated, the prosecutor asked R.E. if she had "any feelings in particular one way or another as to whether the criminal justice system is fair or unfair toward African [-] Americans?" When R.E. responded "No," the prosecutor then asked the same question of the rest of the panel.
Defendant contends "[t]his disparate treatment of [R.E.] in being singled out to answer questions about her view towards African [-] American[s'] treatment in the courts further suggests group bias." We disagree. The prosecutor asked the same question of all the prospective jurors; he may have asked R.E. the question first simply because the idea to ask the question was sparked by her statement that her brother was incarcerated. In any event, as noted above, our task is to review the trial court's implied finding that defendant did not make a prima facie showing of a Wheeler violation for substantial evidence. Because the record suggests grounds on which the prosecutor might reasonably have challenged R.E., we conclude substantial evidence supports the trial court's finding. Neither the timing of the prosecutor's challenge nor the prosecutor's question regarding how the justice system treats African-Americans compels a different result.
Having participated in the jury selection process, the trial judge was in the best position to determine under all the relevant circumstances whether it was reasonable to infer the prosecutor challenged R.E. because of her race. ( See People v. Box, supra, 23 Cal.4th at p. 1189.) Because there is substantial evidence in the record to support the trial court's implied finding that defendant did not make a prima facie showing the challenge was race-based, we conclude the court did not err in denying defendant's Wheeler motion.
It does not appear from the record what relief defendant requested in his Wheeler motion. We presume, however, defendant sought the appropriate relief, which was to quash or dismiss the jury venire. See People v. Williams, 16 Cal.4th 635, 662, fn. 9 (1997).
Opinion at 3-10.
2. Prior Proceedings in this Court
By order dated June 3, 2008, this court determined that a de novo standard of review, and not the AEDPA deferential standard, must be employed when deciding petitioner's Batson/Wheeler claim. See June 3, 2008 order at 6-11. This court also determined that petitioner had demonstrated a prima facie case sufficient to require a rebuttal of the claim of racial discrimination with respect to the prosecutor's exercise of a peremptory challenge against juror R.E. Id. at 11-19. Because of the court's decision in this regard, an evidentiary hearing was held in the courtroom of the undersigned on June 27, 2008, in order to afford the prosecutor the opportunity to explain his reasons for excluding R.E from petitioner's jury. Subsequent to that evidentiary hearing, on August 7, 2008, petitioner filed a "Post-Evidentiary Hearing Memorandum in Support of Petition for Writ of Habeas Corpus" (Petitioner's Brief). On August 29, 2008, respondent filed a "Post-Evidentiary Hearing Brief" (Respondent's Brief). On September 6, 2008, petitioner filed a "Reply to Respondent's Post-Evidentiary Hearing Brief" (Petitioner's Reply). This court has considered those briefs in issuing these findings and recommendations.
3. Legal Standards Regarding Petitioner's Batson/Wheeler Claim
Purposeful discrimination on the basis of race or gender in the exercise of peremptory challenges violates the Equal Protection Clause of the United States Constitution. See Batson, 476 U.S. at 79; Johnson v. California, 545 U.S. 162 (2005). So-called Batson claims are evaluated pursuant to a three-step test:
First, a defendant the movant must make a prima facie showing that the prosecution has engaged in the discriminatory use of a peremptory challenge by demonstrating that the circumstances raise "an inference that the prosecutor used [the challenge] to exclude veniremen from the petit jury on account of their race." [Citation omitted.] Second, if the trial court determines a prima facie case has been established, the burden shifts to the prosecution to articulate a [gender]-neutral explanation for challenging the juror in question. [Citation omitted.] Third, if the prosecution provides such an explanation, the trial court must then rule whether the movant has carried his or her burden of proving the existence of purposeful discrimination.Tolbert v. Page, 190 F.3d 985, 987-88 (9th Cir. 1999) (en banc).
In order to establish a prima facie case of racial discrimination, petitioner must show that "(1) the prospective juror is a member of a "cognizable racial group," (2) the prosecutor used a peremptory strike to remove the juror, and (3) the totality of the circumstances raises an inference that the strike was motived by race." Boyd v. Newland, 467 F.3d 1139, 1143 (9th Cir. 2006) (citing Batson, 476 U.S. at 96 and Cooperwood v. Cambra, 245 F.3d 1042, 1045-46 (9th Cir. 2001)). A prima facie case of discrimination "can be made out by offering a wide variety of evidence, so long as the sum of the proffered facts gives `rise to an inference of discriminatory purpose.'" Johnson, 545 U.S. at 169 (quoting Batson, 476 U.S. at 94.) In evaluating whether a defendant has established a prima facie case, a reviewing court should consider the "`totality of the relevant facts' and `all relevant circumstances' surrounding the peremptory strike." Boyd, 467 F.3d at 1146 (quoting Batson, 476 U.S. at 94, 96). This should include a review of the entire transcript of jury voir dire in order to conduct a comparative analysis of the jurors who were stricken and the jurors who were allowed to remain. Boyd, 467 F.3d at 1050 ("We believe, however, that Supreme Court precedent requires a comparative juror analysis even when the trial court has concluded that the defendant failed to make a prima facie case"). See also Miller-El v. Dretke, 545 U.S. 231 (2005) (utilizing comparative analysis, in a case in which a prima facie showing had been made, to determine whether the prosecutor had been motived by racial bias in exercising peremptory challenges).
In Batson, defense counsel made a timely objection to the prosecutor's use of peremptory challenges because they resulted in the striking of "all black persons on the venire." Batson, 476 U.S. at 100. The Supreme Court held that this was sufficient basis to find an inference of racial discrimination and that the trial court erred when it "flatly rejected the objection without requiring the prosecutor to give an explanation for his action." Id.
Comparative juror analysis refers to "an examination of a prosecutor's questions to prospective jurors and the jurors' responses, to see whether the prosecutor treated otherwise similar jurors differently because of their membership in a particular group." Boyd, 467 F.3d at 1145. See also Miller-El, 125 S.Ct. at 2325 (stating that "side-by-side comparisons of some black venire panelists who were struck and white panelists allowed to serve" was "more powerful" than bare statistics).
At the second step of the Batson analysis, "`the issue is the facial validity of the prosecutor's explanation." Hernandez v. New York, 500 U.S. 352, 360 (1991). "A neutral explanation in the context of our analysis here means an explanation based on something other than the race of the juror." Id. at 360. "Unless a discriminatory intent is inherent in the prosecutor's explanation, the reason offered will be deemed race-neutral." Stubbs v. Gomez, 189 F.3d 1099, 1105 (9th Cir. 1999) (quoting Hernandez, 500 U.S. at 360). For purposes of step two, the prosecutor's explanation need not be "persuasive, or even plausible." Purkett v. Elem, 514 U.S. at 765, 768 (1995). Indeed, "to accept a prosecutor's stated nonracial reasons, the court need not agree with them." Kesser v. Cambra, 465 F.3d at 351, 359 (9th Cir. 2006). "It is not until the third step that the persuasiveness of the justification becomes relevant — the step in which the trial court determines whether the opponent of the strike has carried his burden of proving purposeful discrimination." Purkett, 514 U.S. 765, 768 (1995) (emphasis in original). The question is whether, after an evaluation of the record pertaining to that particular case, the prosecutor's race-neutral explanation for a peremptory challenge should be believed. Id.
In the third step of a Batson challenge, the trial court has "the duty to determine whether the defendant has established purposeful discrimination," Batson, 476 U.S. at 98, and, to that end, must evaluate the "persuasiveness" of the prosecutor's proffered reasons. See Purkett, 514 U.S. at 768. In determining whether petitioner has carried this burden, the Supreme Court has stated that "a court must undertake `a sensitive inquiry into such circumstantial and direct evidence of intent as may be available.'" Batson, 476 U.S. at 93 (quoting Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252, 266 (1977)); see also Hernandez, 500 U.S. at 363. "[I]mplausible or fantastic justifications may (and probably will) be found to be pretexts for purposeful discrimination." Purkett, 514 U.S. at 768. See also Lewis v. Lewis, 321 F.3d 824, 830 (9th Cir. 2003) ("[I]f a review of the record undermines the prosecutor's stated reasons, or many of the proffered reasons, the reasons may be deemed a pretext for racial discrimination.") In step three, the court "considers all the evidence to determine whether the actual reason for the strike violated the defendant's equal protection rights." Yee v. Duncan, 463 F.3d 893, 899 (9th Cir. 2006). "A court need not find all nonracial reasons pretextual in order to find racial discrimination." Kesser, 465 F.3d at 360.
The defendant bears the burden of persuasion to prove the existence of unlawful discrimination. Batson, 476 U.S. at 93. "This burden of persuasion `rests with, and never shifts from, the opponent of the strike.'" Id. at 2417 (quoting Purkett, 514 U.S. at 768). However, "the defendant is entitled to rely on the fact, as to which there can be no dispute, that peremptory challenges constitute a jury selection practice that permits `those to discriminate who are of a mind to discriminate.'" Batson, 476 U.S. at 96 (quoting Avery v. Georgia, 345 U.S. 559, 562 (1953).
4. Analysis
Petitioner claims that the prosecutor's reasons for striking juror R.E., which he described at the June 27, 2008 evidentiary hearing, were a pretext for racial discrimination. Accordingly, this court will evaluate the record to determine whether the prosecutor's stated reasons for excluding juror R.E. from petitioner's jury pass constitutional muster.
The parties agree that petitioner bears the burden of proving his factual contentions by a preponderance of the evidence, and not by clear and convincing evidence, because the state court decision is not entitled to the deference bestowed by AEDPA. Petitioner's Brief at 5-6; Respondent's Brief at 6-7. See Taylor v. Maddox, 366 F.3d 992, 1013 n. 16 (9th Cir. 2004). This court concludes that petitioner's Batson claim should be denied regardless of the standard used.
At the evidentiary hearing, the prosecutor explained that he exercised a peremptory challenge against R.E. because she had a negative demeanor during voir dire and because he believed the overall makeup of the jury would be more favorable to the prosecution if R.E. was replaced by another juror on the panel. Specifically, he stated that when he first viewed the prospective panel, as a whole, he "wasn't thrilled" because he felt the panel members were not "by and large . . . pro prosecution jurors." Transcript of June 27, 2008 evidentiary hearing (EHT) at 7. He explained that the method of jury selection employed at petitioner's trial allowed the attorneys to see who would be the next person called to the jury box if they exercised a peremptory challenge against a juror who was already seated. Id. at 10. Thus, he elaborated, "if you have someone that you think is maybe not a great juror for your case, you feel a little more comfortable in exercising your peremptories [against that person] because you have an idea of who's going to come up next." Id. In other words, an attorney could "kick this person up here because I like this person down here better." Id.
The prosecutor testified that juror R.E. seemed "disengaged" and uninterested in the jury selection process and that she didn't appear to interact with the other jurors. Id. at 14. He initially had concerns about R.E. because her questionnaire stated that her brother had been convicted of a felony and she had been a witness to a murder. When she was questioned about these matters during voir dire, however, R.E. assured the prosecutor that she didn't "have a problem with the criminal justice system." Id. at 16. Nonetheless, he felt that R.E.'s demeanor when answering his questions was unfavorable when compared with the demeanor of other jurors. Id. The prosecutor explained that R.E. was "spacey," didn't seem to understand what was happening, did not make eye contact, and was not really paying attention. Id. at 17. He stated that her manner was "odd and unusual." Id. He also stated that she "stare[d] off into the middle of space" and gave "very short yes or no answers." Id. at 18.
The prosecutor acknowledged that, at one point during the selection process, he accepted the jury with R.E. on it. Id. at 21. When asked why he did this in spite of his reservations about R.E., he explained that he believed the composition of the jury at that time was "about as good as I'm going to get." Id. He credibly explained that he was not "thrilled" with the jury as it stood, but that "it could get a lot worse," so he decided to "stay with what I've got." Id.
The prosecutor explained that he eventually exercised a challenge against R.E. because he felt that the defense had removed some jurors who were potential leaders, thereby making R.E. even less desirable as a member of the jury. Id. at 28. He felt the need to "get some stronger people on there." Id. Specifically, he wanted prospective juror Zamzow on the panel, so he excused juror R.E. in order to get Zamzow. Id. The prosecutor summarized his intentions with respect to the jury, and specifically juror R.E., as follows:
The prosecutor initially testified he wanted juror Duke to replace juror R.E. Id. at 30. However, when reminded that Mr. Duke was already on the jury when he excused R.E., the prosecutor explained that he had actually excused R.E. in order to obtain Mr. Zamzow on the jury. Id. at 30-32. He felt that Mr. Zamzow would be a better candidate because he seemed grounded and appeared to be a leader. Id. at 32.
No, it was simply a matter of trying to look at the jury as a whole, and what we were trying to do is get everybody that's going to work together, and as the composition changes, the inter-relations of the jurors change, and your ability to have a stronger or weaker person changes along with it.
At that point, I looked at who was left, and I thought, you know, I believe two of them actually became the alternates as well. The remaining group I felt were better than what I had with [juror R.E.]. The prior times — the first time I passed on her, I don't think — I didn't know who was out there other than a random additional 34 people that were sitting in the gallery.Id. at 33.
This court held the evidentiary hearing because of petitioner's prima facie showing which warranted some explanation from the prosecutor for his challenge to juror R.E. June 3, 2008 Order at 19-20. The second step of the Batson/Wheeler analysis is to examine the "facial validity of the prosecutor's explanation." Hernandez, 500 U.S. at 360. The court finds that the prosecutor's stated reasons for exercising a peremptory challenge against juror R.E. — her negative demeanor and the changing composition of the jury — were facially race-neutral. His reasons were not based on the race of R.E and there was no discriminatory intent inherent in his explanations. Id.
The third step of the Batson analysis is to determine whether the prosecutor's race-neutral explanations were sincere or whether they were a pretext for deliberate discrimination. Kesser, 465 F.3d at 359. One manner of framing the question is whether, in light of the evidence and testimony presented, the prosecutor's nondiscriminatory explanation is worthy of credence or instead appears to be a pretext to mask an unlawful motive.
Petitioner argues that all of the prosecutor's stated reasons for excusing juror R.E. revolved around her demeanor. Petitioner's Brief at 8. He notes that the prosecutor did not raise any objective reason for excluding R.E., such as her answers on the juror questionnaire or during jury voir dire. Id. Petitioner contends that the recent United States Supreme Court case Snyder v. Louisiana, 128 S.Ct. 1203 (2008) precludes this court from crediting the prosecutor's statements that he excluded R.E. on the basis of her demeanor because the trial court did not explicitly confirm the prosecutor's assessment of R.E.'s demeanor.
In Snyder, the prosecutor exercised peremptory challenges against all five of the prospective black jurors. When defense counsel made a Batson objection concerning one of those jurors, the prosecutor explained that he exercised a challenge against the juror for two reasons: (1) the juror appeared to be nervous during voir dire; and (2) the juror expressed a concern that he would miss college classes if he served on the jury and the prosecutor was worried the juror might rush to judgment in order to get back to school. 128 S.Ct. at 1208. Although the defense disputed both of these explanations, the trial court summarily overruled the Batson challenge. Id. The United States Supreme Court reversed the denial of Snyder's appeal, concluding that the prosecutor's stated reasons for excluding the juror were a pretext for racial discrimination.
The Supreme Court first emphasized that the third Batson step "involves an evaluation of the prosecutor's credibility," and that "the best evidence of discriminatory intent often will be the demeanor of the attorney who exercises the challenge." Id. at 1208, 1213 (internal quotation marks and citation omitted). The court also noted that race-neutral reasons for peremptory challenges "often invoke a juror's demeanor" and that "determinations of credibility and demeanor lie peculiarly within a trial judge's province." Id. at 1208. The court explained, "[i]n this situation, the trial court must evaluate not only whether the prosecutor's demeanor belies a discriminatory intent, but also whether the juror's demeanor can credibly be said to have exhibited the basis for the strike attributed to the juror by the prosecutor." Id. The Supreme Court described the trial court's role in evaluating Batson claims as "pivotal" because of that court's ability to evaluate the demeanor of both the prosecutor and the excluded juror(s). Id.
Considering the nervousness justification first, the Supreme Court concluded that it was unable to defer to the trial court's conclusion that no discrimination had occurred because there was no evidence the trial judge based his Batson ruling on the juror's demeanor. Id. In other words, because the trial court had not made an express determination regarding the prosecutor's first reason — the juror's demeanor — the court refused to presume that the trial court relied on that reason in denying the Batson challenge. Id. The court noted that the trial judge did not describe his own observation of the juror's demeanor and may not have agreed with the prosecutor that the juror seemed nervous. Accordingly, the Supreme Court rejected the prosecutor's first rationale because it did not find any evidence in the record to support his contention that the juror appeared nervous. Id. at 1208-1209.
The Supreme Court then considered the prosecutor's second rationale and rejected it after an analysis of the specific facts of that case. Id. at 1209-1212. Because the court found no support in the record for either of the prosecutor's stated reasons for eliminating the juror in question, and because "the record does not show that the prosecution would have presumptively challenged [the juror] based on his nervousness alone," it concluded that the prosecutor's proffer was pretextual and that he had exercised the challenge with discriminatory intent. Id. at 1212. Put another way, the Supreme Court concluded that the adverse inference created by the use of the second, pretextual reason was not overcome by the first reason, which found no support in the record.
In this case, as in Snyder, there is no evidence in the record that the trial court agreed with the prosecutor that R.E.'s demeanor justified a peremptory strike. Therefore, there is no evidence before the court to support the prosecutor's contention that R.E. had a poor demeanor. However, the prosecutor challenged R.E. not only because of her bad attitude during voir dire, but also because of the evolving nature of the jury and the prosecutor's assessment of R.E.'s place in it. This second rationale for excusing R.E. is not the same as a rationale based on a specific aspect of a juror's demeanor. During the evidentiary hearing, this court was able to evaluate the prosecutor's demeanor while he was explaining his strike of R.E. Specifically, this court was able to evaluate "whether the prosecutor's demeanor belies a discriminatory intent." Snyder, 128 S.Ct. at 1208. In that respect, this court stood in the place of the trial court in its role of assessing the credibility of a prosecutor who is responding to a Batson challenge. As noted above, the United States Supreme Court in Snyder has observed that the demeanor of the prosecutor when describing his peremptory challenge of a particular juror, "is often the best evidence of discriminatory intent." Id. See also Hernandez, 500 U.S. at 365 ("the best evidence [of discriminatory intent] often will be the demeanor of the attorney who exercises the challenge").
Indeed, the trial court's failure to inquire into the reason(s) for the challenge is what occasioned the need for the evidentiary hearing here.
This court finds the prosecutor's testimony, and specifically, his explanation for the strike to be credible. His demeanor and manner of testifying were sincere. There was no evidence in his demeanor that the strike of R.E. was for discriminatory reasons, nor is there any evidence in the record which contradicts the prosecutor's assertion that he struck R.E. because of his overall impression of the strength of the jury. Aside from his complaints about R.E.'s demeanor, the prosecutor testified extensively about his efforts to come up with a cohesive jury, using his notes he had recorded during jury selection to corroborate his explanations. He explained that he accepted and then challenged R.E. because of his changing assessment of the personality of the jury panel as it evolved during the jury selection process. The court notes that the fact a prosecutor's reasons may be "founded on nothing more than a trial lawyer's instincts about a prospective juror" does not "diminish the scope of acceptable invocation of peremptory challenges, so long as they are the actual reasons for the prosecutor's actions." United States v. Power, 881 F.2d 733, 740 (9th Cir. 1989) (quoting United States v. Chinchilla, 874 F.2d 695, 699 (9th Cir. 1989)).
It is true that the record does not corroborate the prosecutor's overall sense of the jury and his opinion that R.E. was not as good a juror as someone else who was waiting in the jury box. Nor could it. The prosecutor's observations in this regard are largely subjective and are not necessarily amenable to corroboration by the trial judge. This court does not construe Snyder to mean that a prosecutor cannot legitimately exclude a juror based on his sense of the jury as a whole unless the trial court judge specifically credits the prosecutor's impression of all of the jurors. The United States Supreme Court did not reverse Snyder's conviction because the trial court had failed to explain itself clearly, but because it was unclear whether the trial court's finding rested on a plausible or implausible explanation for the strike. After listening to the prosecutor's reasons for the strike of R.E., the court finds that the prosecutor's testimony was credible and concludes that his stated reasons were not a pretext for racial discrimination but were, in fact, the actual reasons for his strike of R.E.
This court also notes that, in Snyder, the prosecutor challenged all five black prospective jurors. Here, the prosecutor passed at one point in the jury selection process with two African-Americans, including R.E., on the panel. EHT at 26. In addition, at one point he excused a white juror in order to get a black juror on the panel, and passed the jury with another juror who he subsequently excused because of the changing composition of the jury. Id. at 22-24. These actions corroborate the prosecutor's explanation that he excused R.E., as he did other jurors, because of the evolving personality of the jury. As noted above, when ruling on alleged Batson error, "all of the circumstances that bear upon the issue of racial animosity must be consulted." Snyder, 128 S.Ct at 1208. In addition, unlike the situation in Snyder, none of the prosecutor's rationales for the strike of R.E. is "unconvincing," "highly speculative," suspicious," or "implausible." Snyder, 128 S.Ct. at 1210-12.
When deciding a Batson claim, the "decisive question [is] whether counsel's race-neutral explanation for a peremptory challenge should be believed." Id. at 1212 (quoting Hernandez, 500 U.S. at 365). In this regard, the fact finder is tasked with considering the genuineness of an attorney's explanation, rather than its reasonableness. Purkett, 514 U.S. at 769. That is because the fact finder is in the best position to evaluate an attorney's candor and ferret out purposeful discrimination. Miller-El, 537 U.S. at 339. In this case, the court concludes that the prosecutor's stated reasons for excusing R.E. were his genuine reasons for exercising a peremptory strike, rather than pretexts invented to hide purposeful discrimination. Petitioner has therefore failed to carry his burden of proving the existence of unlawful discrimination. Accordingly, his claim based on Batson must be denied.
D. Griffin Error
In the handwritten pages attached to the body of the instant petition, petitioner claims that the prosecutor committed misconduct when he commented on petitioner's failure to testify (so-called Griffin error) and that the trial court erred when it failed to grant a motion for new trial on this basis. See Pet. at consecutive pgs. 24-31. Again, because these claims are contained in handwritten pages attached to the instant petition, it is not clear to the court whether petitioner intends to raise them here. The claims do not appear to have been exhausted in the state courts and respondent has not addressed them in his answer.
Assuming arguendo that petitioner intends to raise these claims in the petition before this court, the court will recommend that they be denied pursuant to 28 U.S.C. § 2254(b)(2) ("[a]n application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State"). See also Cassett v. Stewart, 406 F.3d 614, 624 (9th Cir. 2005) (a federal court considering a habeas petition may deny an unexhausted claim on the merits when it is perfectly clear that the claim is not "colorable").
The state court record reflects that, prior to jury voir dire, petitioner's counsel filed a "motion for supplemental jury voir dire," requesting that he be allowed to ask each prospective juror the following questions, among others:
1. Do you think that a [sic] Mr. Patterson should testify at this trial?
2. Would you be able to find Mr. Patterson "Not Guilty" if you do not hear him/her testify?
3. Do you understand that a defendant need not testify?
4. Do you believe that a defendant would lie when testifying under oath simply because he/she faces the possibility of conviction?
CT at 159. During voir dire, the prosecutor made the following remarks:
Okay. Now, we all just got done saying we're going to follow the law and have no problem with it. Here comes a big question. The law says a defendant does not have to get up here on the witness stand and testify. He has an absolute right not to testify if he doesn't want to. It's up to him. Are any of you in any way, shape or form going to hold it against the Defendant if he decides not to testify? Okay.
Frequently we hear people after jury service is done say you know what, I think if he was innocent he would have got up on the stand and told me so, and I wanted to hear that. He didn't testify, therefore, he must have been guilty. Okay. It doesn't work that way.
Okay. Can all of you promise me you're not going to have those thoughts enter your head during this trial if the Defendant doesn't testify? Okay. Most of you nodding yes. Now, whether or not the Defendant testifies — if he does, great — can you judge his testimony along with all the other witnesses equally? Would you all use the same standards of credibility in judging all witness' testimony, whether police officers, civilian witnesses, victims or the Defendant? Treat them all the same? Okay.
Augmented Reporter's Transcript on Appeal (ART) at 820-21. After the verdict was rendered, petitioner filed a motion for new trial, arguing that the prosecutor committed Griffin error. CT at 223-27. That motion was denied by the trial court on the grounds that: (1) the prosecutor's statements were a correct recitation of petitioner's Fifth Amendment right not to testify; (2) the statements occurred during voir dire and not during argument; and (3) the remarks were not "overly emphasized to the point where the defendant was prejudiced." RT at 476.
Petitioner argues that the prosecutor's remarks constituted an improper comment on his right not to testify and focused the jury's attention on the possibility that the reason petitioner declined to testify was that he was guilty. He claims that the trial court should have granted his motion for new trial on the basis of the prosecutor's misconduct.
Petitioner represents that his trial counsel requested a mistrial immediately after the prosecutor made the offending remarks and that the request was denied by the trial judge on the basis that the remarks did not result in a miscarriage of justice. Pet. at consecutive p. 28. The portion of the state trial transcript reflecting counsel's request for mistrial, if any, has not been lodged with this court. See ART at 823. However, for the reasons discussed below, the trial court's refusal, if any, to grant petitioner a new trial on this basis did not violate petitioner's federal constitutional rights.
The Fifth Amendment prohibits a prosecutor from commenting to the jury regarding the defendant's failure to testify at trial. Griffin v. California, 380 U.S. 609, 615 (1965). A prosecutorial comment in argument runs afoul of the rule "if it is manifestly intended to call attention to the defendant's failure to testify, or is of such a character that the jury would naturally and necessarily take it to be a comment on the failure to testify." Lincoln v. Sunn, 807 F.2d 805, 809 (9th Cir. 1987). However, relief is to be granted on such a claim only "`where such comment is extensive, where an inference of guilt from silence is stressed to the jury as a basis for the conviction, and where there is evidence that could have supported acquittal.'" Id. (citations omitted). See also Beardslee v. Woodford, 358 F.3d 560, 587 (9th Cir. 2004); United States v. Olano, 62 F.3d 1180, 1196 (9th Cir. 1995); Jeffries v. Blodgett, 5 F.3d 1180, 1192 (9th Cir. 1993). Conversely, relief will not be granted where the prosecutorial comment is a single, isolated incident, does not stress the inference of guilt from silence as a basis for the verdict and is followed by a curative instruction. Lincoln, 807 F.2d at 809.
This court concludes that no error of constitutional magnitude occurred here. The evidence against petitioner was overwhelming. In addition, petitioner's jury was instructed as follows:
A defendant in a criminal trial has a constitutional right not to be compelled to testify. You must not draw any inference from the fact that a defendant does not testify. Further, you must neither discuss this matter nor permit it to enter into your deliberations in any way.
In deciding whether or not to testify, the defendant may choose to rely on the state of the evidence and upon the failure, if any, of the People to prove beyond a reasonable doubt every essential element of the charge against him. No lack of testimony on defendant's part will make up for a failure of proof by the People so as to support a finding against him on any such essential element.
CT at 193-94. These instructions clearly informed the jurors that they could not treat petitioner's silence as substantive evidence of guilt, that they were not to draw any negative inference from petitioner's failure to testify, and that they could not penalize petitioner for failing to fill in material gaps in the evidence. Further, the prosecutor's comments did not ask the jury to draw an adverse inference based on petitioner's election not to testify. Given the circumstances, petitioner has failed to show prejudicial error by virtue of the prosecutor's comments or that the trial court committed federal constitutional error when it failed to grant petitioner a new trial on the basis of Griffin error. Accordingly, petitioner is not entitled to relief on these claims.
For all of the foregoing reasons, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be denied.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(1). Within twenty days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).