Opinion
Civil No. 03CV606-BEN (JMA).
March 3, 2006
ORDER ADOPTING REPORT AND RECOMMENDATION DENYING PETITION FOR WRIT OF HABEAS CORPUS
I. INTRODUCTION.
A jury convicted Petitioner GEORGE WENZEL ("Wenzel" or "Petitioner") of second degree murder of his wife, Lyn; he is now serving 15 years-to-life. After unsuccessfully challenging his conviction in the state courts, Wenzel, through his attorney, has now filed a petition for a writ of habeas corpus ("Petition") under 28 U.S.C. § 2254. He challenges his conviction on federal constitutional grounds. See, 28 U.S.C. § 2254 (". . . [A] district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court. . . .").
Specifically, Wenzel has three claims: (1) he was denied his rights to due process and a jury trial in violation of the Fifth, Sixth and Fourteenth Amendments because: (a) his request for a voluntary manslaughter jury instruction was denied; (b) the court essentially directed a verdict on the causation element when it commented on the evidence; (c) the jury was instructed to inform the court if any juror deliberated improperly; (d) the court instructed the jury to use its common sense and life experience in defining malice; (e) the jury was instructed that euthanasia is no defense to murder; (f) the court's reasonable doubt jury instruction was faulty; and (g) the cumulative effect of all instructional errors lightened the prosecution's burden of proof;
(2) he was denied his right to present testimony of Dr. Smith in his defense in violation of the Due Process and Compulsory Process Clauses of the Fifth and Sixth Amendments; and
(3) the admission of his videotaped statement to the police violated his Fifth Amendment right.
After the matter was fully briefed, it was referred to the Honorable Magistrate Judge Jan M. Adler for Report and Recommendation ("Report"). See, 28 U.S.C. 636(b). Judge Adler issued a Report, finding Wenzel's claims lacked merit and recommended the Petition be denied.
Wenzel objects to judge Adler's findings. The Court has made ade novo review of the Report. See, 28 U.S.C. § 636(b) (1). Having done so, the Court ADOPTS the Report in full. As judge Adler found, Wenzel has failed to show that the state court's denial of his claims was contrary to, or involved an unreasonable application of, clearly established Supreme Court law, or that he suffered any prejudice as a result of any alleged error. Accordingly, Wenzel is not entitled to habeas relief, and his Petition is DENIED.
II. FACTS.
The facts are detailed in judge Adler's Report. Wenzel does not object to the facts. "The [C]ourt may . . . assume the correctness of that portion of the proposed findings of fact to which no objection has been made. . . ." Coleman v. Wilson, 912 F.Supp. 1282, 1297 (E.D.Cal. 1995); see also, U.S. v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989) ("If neither party contests the magistrate's proposed findings of fact, the court may assume their correctness and decide the motion on the applicable law."). Moreover, in reciting the facts, Judge Adler relied on the state appellate court's opinion. Absent clear and convincing contrary evidence, these factual determinations are presumed correct. See, 28 U.S.C. § 2254(e)(1) ("[A] determination of a factual issue made by a State court shall be presumed to be correct."). See also, Williams v. Rhoades, 354 F.3d 1101, 1106 (9th Cir. 2004) ("We presume that state courts' . . . factual findings are correct in the absence of clear and convincing evidence to the contrary."); Tinsley v. Borg, 895 F.2d 520, 524-525 (9th Cir. 1990) ("[T]he state court's findings are entitled to a presumption of correctness on federal habeas corpus review. This rule applies to the factual findings of both state trial and appellate courts."). Wenzel offers no evidence, much less clear and convincing, to rebut the facts. Accordingly, the Court adopts judge Adler's recitation of the facts in full, and refers to them to the extent necessary to analyze Wenzel's claims and objections.III. WENZEL IS NOT ENTITLED TO HABEAS RELIEF.
A. Standard of Review.
The Court's role in reviewing judge Adler's Report is set forth in 28 U.S.C. § 636(b)(1). Under this statute, the Court "shall make a de novo determination of those portions of the report . . . to which objection is made," and "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate [judge]." Id; Wang v. Masaitis, 416 F.3d 992, 1000 fn.13 (9th Cir. 2005); United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (En banc) ("The statute makes it clear that the district judge must review the magistrate judge's findings and recommendations de novo if objection is made, but not otherwise. Neither the Constitution nor the statute requires a district judge to review, de novo, findings and recommendations that the parties themselves accept as correct.").
Further, "[i]n 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act (AEDPA). In that Act, Congress placed a new restriction on the power of federal courts to grant writs of habeas corpus to state prisoners." Williams v. Taylor, 529 U.S. 362, 399 (2000).
"Because [Wenzel's] [P]etition was filed after AEDPA's effective date, on April 24, 1996, the provisions of that Act apply to this case." Patterson v. Stewart, 251 F.3d 1243, 1245 (9th Cir. 2001); see also, Jenkins v. Johnson, 330 F.3d 1146, 1149 (9th Cir. 2003) ("AEDPA's provisions apply to this case because [petitioner's] petition was filed after the Act's April 24, 1996 effective date.").
"AEDPA imposes a highly deferential standard for evaluating state-court rulings." Boyd v. Newland, 393 F.3d 1008, 1012 (9th Cir. 2004) (Citations omitted). "The highly deferential standard for evaluating state-court rulings reflects a respect for state courts as part of a co-equal judiciary and as competent interpreters of federal law." Turney v. Pugh, 400 F.3d 1197, 1200 (9th Cir. 2005). Under the AEDPA, the Court may grant habeas relief if, and only if, the last reasoned state court decision on the contested issue "`was contrary to, or involved an unreasonable application of, clearly established Federal Law, as determined by the Supreme Court of the United States. . . ."Id., quoting 28 U.S.C. § 2254(d)(1); see also, Wade v. Terhune, 202 F.3d 1190, 1195 (9th Cir. 2000).
Habeas relief may also be granted if the state court's ruling "resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." 28 U.S.C. § 2254(d)(2). However, "[t]o obtain federal habeas relief, [a petitioner] must first demonstrate that his case satisfies the condition set by § 2254(d)(1)." Williams v. Taylor, 529 U.S. at 403. Moreover, as noted above, Wenzel does not provide any clear and contrary evidence showing that the state court's determination of facts was unreasonable. See, Miller-El v. Dretke, 125 S.Ct. 2317, 2325 (2005) (For purposes of Section 2254(d)(2), "we presume the [state] court's factual findings to be sound unless [petitioner] rebuts the `presumption of correctness by clear and convincing evidence."). Thus, the only subsection (d)(1) of Section 2254 is at issue.
"Additionally, § 2254(e)(1) states: `a determination of a factual issue made by a State court shall be presumed to be correct. The applicant shall have the burden of rebutting the presumption of correctness by clear and convincing evidence.'"Buckley v. Terhune, 397 F.3d 1149, 1154 (9th Cir. 2005),quoting 28 U.S.C. § 2254(e)(1); see also, Williams v. Rhoades, 354 F.3d 1101, 1106 (9th Cir. 2004) ("We presume that state courts' . . . factual findings are correct in the absence of clear and convincing evidence to the contrary."). "Clear and convincing evidence requires greater proof than the preponderance of the evidence. To meet this higher standard, a party must present sufficient evidence to produce in the ultimate fact-finder an abiding conviction that the truth of its factual contentions are highly probable." Sophanthavong v. Palmateer, 378 F.3d 859, 866-867 (9th Cir. 2004). As noted above, Wenzel offers no evidence, much less clear and convincing, rebutting the state court's factual determinations.
Turning to that subsection, a state court decision is "contrary to" the Supreme Court's precedent if it is "`diametrically different,' `opposite in character or nature,' or `mutually opposed'" with Supreme Court precedent. Williams v. Taylor, 529 U.S. at 405. "The text of § 2254(d)(1) therefore suggests that the state court's decision must be substantially different from the relevant precedent of the [Supreme] Court." Id. "A state-court decision will also be contrary to th[e] Court's clearly established precedent if the state court confronts a set of facts that are materially indistinguishable from a decision of th[e] [Supreme] Court and nevertheless arrives at a result different from [that] precedent." Id. at 406. "By contrast, the mere failure to identify expressly the correct legal standard does not render the state court's decision `contrary to' clearly established federal law as determined by the Supreme Court so long as the state court's reasoning and result are not `contrary to' that precedent." Fowler v. Sacramento County Sheriff's Dept., 421 F.3d 1027, 1035 (9th Cir. 2005); see also, Early v. Packer, 537 U.S. 3, 8 (2002) (The state court's decision "does not even require awareness of our cases, so long as neither the reasoning nor the result of the state-court decision contradicts them.") (Emphasis in original).
"A state court's decision can involve an `unreasonable application' of Federal law if it either: 1) correctly identifies the governing rule but then applies it to a new set of facts in a way that is objectively unreasonable, or 2) extends or fails to extend a clearly established legal principle to a new context in a way that is objectively unreasonable." Hernandez v. Small, 282 F.3d 1132, 1142 (9th Cir. 2002). In that regard, the state court's decision must be "something more than merely incorrect."Fowler v. Sacramento County Sheriff's Dept., 421 F.3d at 1035;see also, Lockyer v. Andrade, 538 U.S. 63, 75(2003). "The state court's application of clearly established law must be objectively unreasonable." Lockyer v. Andrade, 538 U.S. 63, 75(2003). "[T]he range of reasonable judgment can depend in part on the nature of the relevant rule. . . . The more general the rule, the more leeway courts have in reaching outcomes in case by case determinations." Yarborough v. Alvarado, 541 U.S. 652, 664 (2004). Significantly, "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." Williams v. Taylor, 529 U.S. at 411; see also, Weighall v. Middle, 215 F.3d 1058, 1062 (9th Cir. 2000) ("It is not enough for [the Court] to determine in [its] independent judgment that the state court decision was incorrect or erroneous — instead the important question is whether the state court's decision was `objectively unreasonable.'").
"`Clearly established Federal law'" is the "governing legal principle or principles set forth by the Supreme Court at the time the state court render[ed] its decision.'" Lockyer v. Andrade, 538 U.S. 63, 123 (2003). "The statutory language plainly restricts the source of clearly established law to the Supreme Court's jurisprudence." Lambert v. Blodgett, 393 F.3d 943, 974 (9th Cir. 2004). Therefore, "[a] state court decision may not be overturned on habeas review, for example, because of a conflict with Ninth Circuit-based law. . . ." Moore v. Calderon, 108 F.3d 261, 264 (9th Cir. 1997); see also, Kane v. Garcia Espitia, 126 S.Ct. 407 (2005). By the same token, the state court's decision "does not even requireawareness of [the Supreme Court's] cases, so long as neither the reasoning nor the result of the state-court decision contradicts them." Early v. Packer, 537 U.S. 3, 8 (2002); see also, Fowler v. Sacramento County Sheriff's Dept., 421 F.3d at 1035.
"While Supreme Court precedent is the only authority that is controlling under AEDPA, [the Court may] look to Ninth Circuit case law as `persuasive authority for purposes of determining whether a particular state court decision is an `unreasonable application' of Supreme Court law." Davis v. Woodford, 384 F.3d 628, 638 (9th Cir. 2004) (Citations and internal quotations omitted). See also, O'Brien v. Dubois, 145 F.3d 16, 25 (1st Cir. 1998) (Holding that "to the extent that inferior federal courts have decided factually similar cases, reference to those decisions is appropriate in assessing the reasonableness vel non of the state court's treatment of the contested issue."). Ninth Circuit precedent "may also help [the Court] determine what law is `clearly established.'" Fowler v. Sacramento County Sheriff's Dept., 421 F.3d 1027, 1034 (9th Cir. 2005).
"When applying this standard, [the Court] review[s] the last reasoned decision by a state court." Plumlee v. Sue del Papa, 426 F.3d 1095, 1102 (9th Cir. 2005); see also, Williams v. Rhoades, 354 F.3d 1101, 1106 (9th Cir. 2004). That decision here was the state appellate court's unpublished opinion. But, as judge Adler found the state courts did not provide a rational for one of the claims presented — the jury was improperly instructed that euthanasia is no defense. On that claim, the Court must independently review the record to determine whether habeas corpus relief is available. See, Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000). However, the Court's "standard of review does not change the rule of decision." Greene v. Lambert, 288 F.3d 1081, 1089 (9th Cir. 2002). "While we are not required to defer to a state court's decision when that court gives us nothing to defer to, we must still focus primarily on Supreme Court cases in deciding whether the state court's resolution of the case constituted an unreasonable application of clearly established federal law." Id. (Citation omitted). The Court must "presume that state courts know and follow the law. . . ." Williams v. Rhoades, 354 F.3d at 1106.
It is not entirely clear which prong of Section 2254(d)(1) ("contrary to" or "unreasonable application of" clearly established federal law) applies to such cases. Because "the two concepts overlap" it is sufficient that Wenzel's allegations fail under the unreasonable application standard. Van Tran v. Lindsey, 212 F.3d 1143, 1150 (9th Cir. 2000).
"Finally, even if the state court's decision was contrary to, or an unreasonable application of, clearly established federal law, habeas relief may still be denied absent a showing of prejudice." Medina v. Hornung, 386 F.3d 872, 877 (9th Cir. 2004), citing Early v. Packer, 537 U.S. 3, 10-11 (2002) (Per curiam). "There are two forms of prejudice. Only a small group of `structural errors' are deemed so harmful that they warrant per se relief. The overwhelming majority of trial errors are non-structural and do not trigger habeas relief unless the error resulted in `substantial and injurious effect or influence in determining the jury's verdict', or unless the judge `is in grave doubt' about the harmlessness of the error." Id. In other words, a "determination that [a petitioner's] constitutional rights were violated does not end the inquiry." Dillard v. Roe, 244 F.3d 758, 773-774 (9th Cir. 2001). "Thus, in determining whether this violation of [a petitioner's] constitutional rights entitles him to habeas relief, [the Court] must ask `whether the error had a substantial and injurious effect" on the outcome of the trial." Id. "Under this standard of review, [th Court] may not grant habeas relief unless [the petitioner] can establish that, as a result of the state trial court's error, he suffered `actual prejudice'; i.e., that as a result of the error, the outcome of the trial was rendered fundamentally unfair." Id. Against this backdrop, the Court finds that Wenzel is not entitled to habeas relief.
B. The State Court's Decision Was Neither Contrary to, Nor an Unreasonable Application of, Supreme Court Law.
1. "Contrary to" clearly established federal law.
As noted above, "a [state court's] decision is `contrary to' clearly established federal law as determined by the Supreme Court if `the state court applies a rule that contradicts the governing law set forth in [the Supreme Court's] cases' or `if the state court confronts a set of facts that are materially indistinguishable from a decision of [the Supreme] Court and nevertheless arrives at a result different from [that] precedent." Wade v. Terhune, 202 F.3d at 1195, quoting, Williams v. Taylor, 529 U.S. at 405-06. This prong does not apply to Wenzel's claims. Wenzel's contentions are mainly disagreements with the extent to which Supreme Court precedent should be applied to his claims. Moreover, he does not set forth any Supreme Court precedent that is materially indistinguishable from his case. Nor does he claim the state court applied a rule that directly contradicts Supreme Court precedent. Thus, his claims are more properly considered under the "unreasonable application" prong of Section 2254. See, Nunes v. Mueller, 350 F.3d 1045, 1053 (9th Cir. 2003) ("[Petitioner] is correct that the state court ruling was not `contrary to' clearly established Supreme Court law. It followed a California Supreme Court decision which sets forth the same requirements as [U.S. Supreme Court precedent] for demonstrating an ineffective assistance claim in the context of plea bargaining. And the United States Supreme Court has not examined a case whose facts provide sufficient comparability for us to conclude that the result reached by the state court was at odds with established Supreme Court case law."); see also, Baker v. City of Blaine, 221 F.3d 1108, 1111 (9th Cir. 2000) ("The state court identified the correct legal rule announced by the Supreme Court and applied it to the facts of [petitioner's] case. Thus the `unreasonable application of' prong applies."). The Court now turns to that analysis.
2. Unreasonable Application of Clearly Established Supreme Court law.
a. Petitioner is not entitled to habeas relief on the basis of Claim 1.
Wenzel first claims he was deprived of his rights to due process and to a jury trial under the Fifth, Sixth and Fourteenth Amendments by a series of instructional errors which lessened the prosecution's burden of proof. Specifically, Wenzel claims: (1) his request for a voluntary manslaughter jury instruction was improperly denied; (2) the trial judge essentially directed a verdict on the causation element when he commented on the evidence; (3) the jury was instructed to inform the court if any juror deliberated improperly; (4) the court instructed the jury to use its common sense and life experience in defining the term "malice"; (5) the jury was instructed that euthanasia is no defense to murder; (6) the court instructed the jury with a faulty reasonable doubt instruction; and (7) the cumulative effect of all instructional errors lightened the prosecution's burden of proof. As judge Adler found Wenzel's claim fail because the state court's denial of those claims was not an unreasonable application of clearly established Supreme Court precedent. Each of Wenzel's contentions is discussed in turn.
i. Failure to instruct the jury on voluntary manslaughter.
The Court rejects Wenzel's claim that he was entitled to an instruction on a lesser included offense of voluntary manslaughter for several reasons. First, while it is clear that failure to instruct on a lesser included offense can constitute constitutional error in a capital case, see Beck v. Alabama, 447 U.S. 625, 638 (1980), "[t]here is no settled rule of law on whether [this principle] applies to noncapital cases." Turner v. Marshall, 63 F.3d 807, 819 (9th Cir. 1995). That is, no Supreme Court precedent establishes that a jury in a non-capital case must be instructed on a lesser included offense. See, Kane v. Garcia Espitia, 126 S.Ct. 407 (2005) (Denying habeas relief because no Supreme Court decision established that the petitioner is entitled to relief on the basis of his claim).
Moreover, Wenzel's case is not a situation where the extension of law would be appropriate. In Beck, the Supreme Court considered a unique Alabama statute under which the jury was given only a choice of conviction of capital murder or acquittal. The Supreme Court reversed Beck's conviction because the limited choices available to the jury impermissibly enhanced "the risk of an unwarranted conviction." Id. at 637. "The goal of the Beck rule . . . is to eliminate the distortion of the fact-finding process that is created when the jury is forced into an all-or-nothing choice between capital murder and innocence."Schad v. Arizona, 501 U.S. 624, 646-47 (1991). Here, the jury was not presented with an all-or-nothing situation, as it was inBeck v. Alabama, because it could have, and indeed, convicted Wenzel on the charges of second degree murder. See, Schad v. Arizona, 501 U.S. at 646-47 (No Beck error where instruction does not present jury with "all-or-nothing choice between the offense of conviction (capital murder)and innocence."); LaGrand v. Stewart, 133 F.3d 1253, 1262 (9th Cir. 1998) (Denying petitioner's claim because "the all-or-nothing scenario condemned in Beck did not exist. As to the charge of murder in count one, the jury was told it could return verdicts of guilty of murder in the first degree, murder in the second degree or not guilty.").
Also, as Judge Adler and the state court found, the evidence did not support such an instruction. See, Hopper v. Evans, 456 U.S. 605, 611 (1982) ("[D]ue process requires that a lesser included offense instruction be given when the evidence warrants such an instruction. But due process requires that a lesser included offense instruction be given only when the evidence warrants such an instruction.") (Emphasis in original). Under California law, for Wenzel to have been entitled to a voluntary manslaughter instruction, he had to show: (1) that he actually acted under heat of passion and (2) that Lyn (his wife and the victim) did something so provocative as to cause an ordinary person to act under heat of passion. See, People v. Dixon, 32 Cal.App.4th 1547, 1552 (1995) ("[P]rovocation and heat of passion must be affirmatively demonstrated. It is not enough that provocation alone be demonstrated. There must also be evidence . . . that defendant's reason was in fact obscured by passion at the time of the act.") (Emphasis added). Moreover, "if sufficient time has elapsed between the provocation and the fatal blow for passion to subside and reason to return, the killing is not voluntary manslaughter — the assailant must act under the smart of that sudden quarrel or heat of passion." Id.
As Judge Adler found, "[t]he state court's finding that there was no substantial evidence that [Wenzel] acted under heat of passion or that Lyn did something to provoke him, so as to justify a manslaughter theory, was objectively reasonable." Wenzel argues that his Wife's begging him to kill her constituted adequate provocation. Under California law, "mercy killing" is not manslaughter; the victim's request does not negate malice.See, People v. Cleaves, 229 Cal.App.3d 367, 376-377 (1991);see also, People v. Matlock, 51 Cal.2d 682, 694 (1959). Similarly, given the overwhelming evidence indicating that Wenzel's killing of his wife was premeditated, the evidence does not support a reasonable inference that Wenzel acted under the heat of passion, thus justifying a lesser included instruction.See, Brecht v. Abrahamson, 507 U.S. 619, 637-38 (1993); see also, Gerlaugh v. Stewart, 129 F.3d 1027, 1031 (9th Cir. 1997).
In his objections, Wenzel offers nothing to compel a different result. Wenzel does not contest the evidence against him. He merely argues that the evidence somehow suggests that he acted under the heat of passion and his wife provoked his actions. Even if true, the state court's opposite conclusion is still objectively reasonable. See, Early v. Packer, 537 U.S. 3, 11 (2002) (Where, as here, "it is at least reasonable to conclude that [the state appellate court's conclusion was reasonable] . . . the state court's determination to that effect must stand."). Wenzel is not entitled to habeas relief on this basis.
Significantly, and Wenzel does not argue otherwise, any provocation that could have occurred as a result of his wife's actions, was dissipated because of the time lapse. The evidence showed that Wenzel walked upstairs a half hour after he last spoke to his wife and laid down next to her for an hour before he killed her.
ii. Trial court's comment on the evidence.
Equally without merit is Wenzel's next claim that the trial court violated his due process by commenting on evidence when responding to the jury's question.
During deliberations, the jury sent the following note to the trial court:
We are concerned that one member of the jury may be disregarding the instruction to base our decision solely on the evidence presented and on the law.
The statement that concerns us is the following: "I have a reservation. I can never know because I wasn't there. I'm not sure that she wasn't already dead." The trial judge then instructed the jury:
You are advised of the following: I have not intended by anything I have said or done or by any questions that I may have asked to suggest what you should find to be the facts or that I believe or disbelieve any witness. If anything I have done or said has seemed to so indicate, you will totally disregard it and form your own conclusions.
At this time, however, and for the purpose of assisting you in properly deciding this case, I will comment on the evidence and the testimony and believability of any [sic] witness. My comments are intended to be advisory only and are not binding on you, as you must be the exclusive judges of the facts and of the believability of witnesses. You may disregard any or all of my comments if they do not coincide with your views of the evidence and the believability of the witness.
You are advised in this case there is no evidence that this victim was already dead when Mr. Wenzel placed his hand over her nose and mouth. In fact, all of the evidence in this case, including the pathologist's report and testimony and defendant's own statements show the victim was alive at the time he placed his hand over her nose and mouth.
Wenzel argues that the trial court's comment on the evidence deprived him of his Fifth, Sixth and Fourteenth Amendment rights because it essentially told the jury that he killed his wife. As Judge Adler found "[t]he appellate court's finding that the trial court's instruction did not infect the trial with unfairness, nor relieved the prosecution of the burden of establishing an element of the offense beyond a reasonable doubt, and that the comments were fair and balanced, is objectively reasonable." Wenzel does not specifically object to Judge Adler's finding in this regard. Rather, he "objects on the basis of his pleadings filed." (Objection at 7: 16-17.) The Court has reviewed the pleadings, and agrees with Judge Adler's conclusion.
As Judge Adler found, the trial judge was scrupulously fair both in terms of the accuracy of the comment itself and the instruction that the comments are "advisory only and are not binding on you, as you must be the exclusive judges of the facts and of the believability of witnesses. You may disregard any or all of my comments if they do not coincide with your views of the evidence and the believability of the witness." See, Quercia v. United States, 289 U.S. 466, 469 (1933) (The trial judge is not limited to "instructions of an abstract sort" and "it is within his province, whenever he thinks it necessary, to assist the jury in arriving at a just conclusion by explaining and commenting upon the evidence by drawing their attention to the parts of it which he thinks important."); Francis v. Franklin, 471 U.S. 307, 324 (1985) ("The Court presumes that jurors, conscious of the gravity of their task, attend closely the particular language of the trial court's instructions in a criminal case. . . ."); see also, United States v. Schoor, 597 F.2d 1303, 1308 (9th Cir. 1979) ("[A]ny prejudice flowing [from court's comments] was cured by the court's timely and several cautionary instructions").
Moreover, the trial judge avoided showing partiality by focusing on witnesses from both sides and discussing evidence that bolstered as well as undermined the witnesses' credibility. The trial judge did not distort the evidence or add to it. Wenzel did not deny killing his wife. In fact, as the state court found, he admitted to the killing in the note he gave to the police. The physical evidence, set forth in the pathologist's report, also established that Wenzel killed his wife. Thus, both the state appellate and trial court's findings, that there was no evidence that the victim was dead when Wenzel placed his hand over her nose and mouth, and that all the evidence showed the victim was alive at that time, are reasonable and consistent with the evidence. Those findings are entitled to a presumption of correctness which Wenzel has not rebutted by any evidence, much less clear and convincing evidence. See, Miller-El v. Dretke, 125 S.Ct. at 2325.
Even if the instruction was in error, Wenzel was required, but failed, to show the error had a "substantial and injurious effect or influence in determining the jury's verdict." Brecht v. Abrahamson, 507 U.S. 619, 637 (1993). As the state court found, the jury deliberated another four days after the court's comment on the evidence before reaching their verdict, there was no direct evidence that the juror in question was actually intimidated by the instruction or the comment on the evidence, and that the alleged error therefore did not have a "substantial" effect or influence in determining the verdict. Accordingly, Wenzel is not entitled to habeas relief on this basis.
iii. CALJIC No. 17.41.1
Wenzel next claims the trial court erred in instructing the jury with CALJIC No. 17.41.1, which instructs the jurors of their duty to follow the instructions and to inform the court if any juror refuses to do so. The court instructed the jury under CALJIC No. 17.41.1 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."
Wenzel contends that this instruction interfered with the jury's deliberations and isolated and exposed for chastisement the juror who disagreed with the majority about the state of the evidence with regard to whether the victim was already dead. Wenzel also contends that the instruction, coupled with the trial judge's comment on the evidence, diminished that juror's voice during further deliberation. As judge Adler found, no such showing has been made.
Wenzel make no specific objections to Judge Adler's conclusions. Nevertheless, the Court has made a de novo review of Wenzel's claim and fully agrees with, and adopts, Judge Adler's conclusion that Wenzel is not entitled to habeas relief on this basis.
The trial judge here simply instructed the jury that they were required to follow the law and report any juror who refused to do so. And this, the trial court was most certainly permitted, indeed required, to do. See, U.S. v. Gaudin, 515 U.S. 506, 513 (1995) ("[T]he judge must be permitted to instruct the jury on the law and to insist that the jury follow his instructions."); United States v. Trujillo, 714 F.2d 102, 105-06 (11th Cir. 1983) ("While a jury does have the power to bring a verdict . . . its duty is to apply the law as interpreted and instructed by the court.") (internal citations omitted);United States v. Boardman, 419 F.2d 110, 116 (1st Cir. 1969) ("Today jurors may have the power to ignore the law, but their duty is to apply the law as interpreted by the court, and they should be so instructed."); United States v. Moylan, 417 F.2d 1002, 1005-09 (4th Cir. 1969).
Moreover, as discussed above, the trial judge's comments were scrupulously fair and accurate and accompanied by the proper admonitions. No instruction was given that questioned the right of the jury to determine whether the witnesses were to be believed or not, nor whether Wenzel was guilty or not guilty of the offense charged. On the contrary, the court was careful to say that the jury were the exclusive judges of the facts, and that they were to determine-applying to the facts the principles of law announced by the court-whether the evidence established the guilt or innocence. "The trial was thus conducted upon the theory that it was the duty of the court to expound the law, and that of the jury to apply the law as thus declared to the facts as ascertained by them." Sparf v. U.S., 156 U.S. 51, 106 (1895). Nor does Wenzel offer any evidence any juror was prevented from continuing to abide by their position. His claim is purely speculative and thus insufficient for habeas relief. See, James v. Borg, 24 F.3d 20, 26 (9th Cir. 1994) ("Conclusory allegations which are not supported by a statement of specific facts do not warrant habeas relief."); Aubut v. State of Maine, 431 F.2d 688, 689 (1st Cir. 1970) ("Habeas corpus is not a general form of relief for those who seek to explore their case in search of its existence."). Wenzel is not entitled to habeas relief on this basis.
iv. Instruction regarding the definition of malice.
Petitioner contends the trial court erred when, in response to a jury question about the definition of malice, it informed them that they could define the term based on their own common sense and life experiences. Wenzel contends that by allowing the jurors to use a commonplace definition of malice, rather than the statutory definition, the court undermined the prosecution's burden of proof on the malice element.
During deliberations, the trial court, without objection, addressed the jury as follows:
You've sent out a note which reads: "We need clarification on several items. One, please give a clear definition of express malice. Two, what is meant by, quote, conscious disregard for human life under implied malice?"
Ladies and gentlemen, you are instructed to reread 8.11. Use your common sense and you life experiences in defining the terms. Use your common sense and your life experience in defining the terms. That's your instruction. Have a good day.
The instruction referred to, CALJIC 8.11, stated:
"Malice" may be either express or implied. [¶] (Malice is express when there is manifested an intention unlawfully to kill a human being.) [¶] (Malice is implied when: [¶] 1. The killing resulted from an intentional act, [¶] 2. The natural consequences of the act are dangerous to human life, and [¶] 3. The act was deliberately performed with knowledge of the danger to, and with conscious disregard for, human life).
(When it is shown that a killing resulted from the intentional doing of an act with express or implied malice, no other mental state need be shown to establish the mental state of malice aforethought.)
The mental state constituting malice aforethought does not necessarily require any ill will or hatred of the person killed. [¶] The word "aforethought" does not imply deliberation or the lapse of considerable time. It only means that the required mental state must precede rather than follow the act.
Judge Adler found that Wenzel had "failed to demonstrate a due process violation, which requires showing an instructional error so infected the entire trial with unfairness that the resulting conviction violated due process." The Court agrees.
As Judge Adler found, the trial judge did not allow the jury to use a different definition of malice than that set forth in CALJIC No. 8.11. Rather, the trial judge instructed the jury to re-read the definition of malice as set forth in that instruction, and then informed the jurors that they were to use their own experience and common sense. Notwithstanding, "[j]urors may be screened for bias but otherwise should not be expected to leave their life experiences and general knowledge behind."Fields v. Brown, 431 F.3d 1186, 1209 (9th Cir. 2005). Indeed, "[i]t is expected that jurors will bring their life experiences to bear on the facts of a case." Hard v. Burlington N.R.R., 870 F.2d 1454, 1462 (9th Cir. 1989). And, "[i]t is not uncommon for a court to instruct a jury that jurors may consider the evidence in light of their general knowledge and experiences of life, and the trial judge gave a similar instruction here." In re Beverly Hills Fire Litigation, 695 F.2d 207, 214 (6th Cir. 1982) (Citations omitted).
In his objections, Wenzel merely assumes or speculates that the instruction led the jury to use another definition of malice. But, as judge Adler found "[t]he trial court's instruction did not encourage or even permit the jury to use any other definition of malice than that set forth in CALJIC No. 8.11." Wenzel is not entitled to habeas relief on this basis.
v. Definition of euthanasia.
Petitioner contends the failure of the trial court to define the term "euthanasia" lightened the state's burden of proof regarding malice.
The instruction as given stated:
A person's invitation and consent to the perpetration of a crime does not constitute a defense, adequate excuse or provocation to the crime of murder.
Euthanasia is not a defense to murder even though one who commits euthanasia bears no ill will toward his victim and believes his act is morally justified.
Where a person actually performs or actively assists in performing the overt act resulting in death, his act constitutes murder if the evidence proves beyond a reasonable doubt that the killing was done with malice aforethought. It is not relevant whether this act is committed pursuant to an agreement with the victim.
As noted above, the trial court's instruction to the jury about malice stated, among other things, that "[t]he mental state constituting malice . . . does not necessarily require any ill will or hatred of the person killed." This definition has been approved by the California Supreme Court. See, People v. Dellinger, 49 Cal.3d 1212, 1215, 1222 (1989). The trial court's instruction that Euthanasia is not a defense is virtually identical to the malice definition. Thus, the court's instruction was not in error.
Even if the instruction constituted error, it did not rise to the level of a due process violation. See, Cooks v. Spalding, 660 F.2d 738, 739 (9th Cir. 1981) ("Violations of state law, without more, do not deprive a defendant of due process."); see also, Henderson v. Kibbe, 431 U.S. 145, 154 (1977) (Holding that a more egregious error is required to merit habeas relief premised on an omitted instruction when habeas relief is being sought than when relief is sought on direct appeal). Given the facts of this case, and the court's other instruction on malice, the alleged error did not so infect the entire trial such that Wenzel's conviction violates due process. See, Estelle v. McGuire, 502 U.S. at 72-73; Masoner v. Thurman, 996 F.2d 1003, 1006 (9th Cir. 1993). Wenzel has not shown that the evidence presented regarding his relationship with his wife, their suicide pact or his motivation for killing her was sufficient to demonstrate heat of passion or provocation to support a finding of manslaughter, or a lesser included offense than the one of which he was convicted. That is even if the euthanasia instruction improperly precluded a finding that Wenzel acted out of heat of passion, as discussed above, he still has failed to demonstrate adequate provocation.
Nothing Wenzel offers in his objections compels a different result. He merely reargues the same grounds — that he was entitled to a voluntary manslaughter instruction because he killed his wife at her behest. As discussed, even if true, under California law, the victim's request to die does not negate malice. See, People v. Cleaves, 229 Cal.App.3d at 376-377;People v. Matlock, 51 Cal.2d at 694. Wenzel is, therefore, not entitled to habeas relief on this basis.
vi. Reasonable doubt instruction.
Wenzel next claims the reasonable doubt instruction given was unconstitutional and the denial of his request for a modification was error. Specifically, Wenzel contends he requested to substitute "evidentiary certainty" or "subjective state of near certitude," for "abiding conviction" in the standard instruction where it stated, "leaves the minds of the jurors in that condition that they cannot say they feel an abiding conviction of the truth of the charge."
As Judge Adler found, however, the Ninth Circuit in Lisenbee v. Henry, 166 F.3d 997 (9th Cir. 2000) upheld the constitutionality of this instruction in the face of the same challenge as Wenzel's. The court found that the term "abiding conviction" in California's reasonable doubt instruction adequately defined the quantum of doubt required for acquittal under clearly established United States Supreme Court precedent.Id. at 998-1000 ("We . . . conclude that there is no reason to depart from established precedent expressly affirming jury instructions cast in terms of an abiding conviction."). The state appellate court adopted the reasoning in Lisenbee in denying this claim. Accordingly, for the reasons set forth in Lisenbee, the Court agrees with Judge Adler's finding that the state court's adjudication of this claim was neither contrary to, nor involved an unreasonable application of, clearly established federal law. Wenzel offers no objections that would warrant a different result; indeed, he neither specifically objects to judge Adler's findings or the Ninth Circuit's decision inLisenbee. Therefore, Wenzel is not entitled to habeas relief on this claim.
vii. Cumulative effect of errors.
Lastly, Wenzel claims the cumulative effect of the foregoing errors lightened the state's burden of proof with respect to the malice element and requires vacating his conviction. As judge Adler found, no such showing has been made here.
Where no single trial error in isolation is sufficiently prejudicial to warrant habeas relief, "the cumulative effect of multiple errors may still prejudice a defendant." U.S. v. Frederick, 78 F.3d 1370, 1381 (9th Cir. 1996). Where "there are a number of errors at trial, `a balkanized, issue-by-issue harmless error review' is far less effective than analyzing the overall effect of all the errors in the context of the evidence introduced at trial against the defendant." Id., quotingUnited States v. Wallace, 848 F.2d 1464, 1476 (9th Cir. 1988). "Where the government's case is weak, a defendant is more likely to be prejudiced by the effect of cumulative errors." U.S. v. Frederick, 78 F.3d at 1381. As discussed above, there were no errors with regard to the jury instructions or the trial judge's comments. Since there are no errors to accumulate, the cumulative error doctrine does not apply. See, Mancuso v. Olivarez, 292 F.3d 939, 957 (9th Cir. 2002) ("Because there is no single constitutional error in this case, there is nothing to accumulate to a level of a constitutional violation.").
Even if there was any error, this is not the type of case where the government's case was weak. As discussed above, Wenzel admitted to the police and several other persons that he killed his wife, and the only real issue was whether the killing involved malice aforethought. The crux of Wenzel's defense and claims of error were that the jury was precluded from considering whether he killed his wife in the heat of passion, negating malice. As set forth above, there was insufficient evidence to support such a theory. Accordingly, Wenzel is not entitled to habeas relief on the basis.
b. Wenzel is not entitled to habeas relief on the basis of Claim 2.
In Claim 2, Wenzel contends he was deprived of his rights under the Due Process and Compulsory Process Clauses of the Fifth and Sixth Amendments because the trial court excluded testimony from his medical expert witness, Dr. Clark Smith, concerning Wenzel's mental state as it related to malice. Specifically, Wenzel wanted Dr. Smith to assume facts identical to Wenzel's case and assume a hypothetical person with the identical psychological makeup as Wenzel. Dr. Smith would then be asked whether, at the time this hypothetical person put his hands over his wife's mouth and nose, he would have (1) carefully thought out what he was doing; (2) weighed the considerations for and against his conduct; (3) been acting based on reasoned judgment; (4) been deliberating his conduct; and (5) been acting under the emotion of the moment.
The state court found that, under California Penal Code § 29, such testimony was inadmissible. The court further found that changing the subject of the testimony to a hypothetical person does not change the fact that Dr. Smith was going to testify whether Wenzel, at the time he killed Lyn, had the requisite intent necessary for murder.
Section 29 provides:
"In the guilt phase of a criminal action, any expert testifying about a defendant's mental illness, mental disorder, or mental defect shall not testify as to whether the defendant had or did not have the required mental states, which include, but are not limited to, purpose, intent, knowledge, or malice aforethought, for the crimes charged. The question as to whether the defendant had or did not have the required mental states shall be decided by the trier of fact." (Italics added).
State evidentiary rulings are not cognizable on a federal habeas proceeding unless the admission of the evidence violated Petitioner's due process right to a fair trial. Estelle, 502 U.S. at 70; Gordon. v. Duran, 895 F.2d 610, 613 (9th Cir. 1990). In order to establish a due process violation, Wenzel must show that the trial court's ruling was so prejudicial that it rendered his trial fundamentally unfair. Ortiz-Sandoval v. Gomez, 81 F.3d 891, 897 (9th Cir. 1996); Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991) (If "the admission of evidence so fatally infected the proceedings as to render them fundamentally unfair," habeas corpus relief is available).
Wenzel's trial counsel summarized Dr. Smith's testimony in closing:
Dr. Smith testified that George's judgment and behavior was affected based upon his mental condition. He would have difficulty weighing out important decisions. He would have difficulty weighing out considerations for and against specific conduct. He could be impulsive. He would have difficulty acting on reasoned judgment versus emotion. He would have difficulty being able to deliberate about a course of conduct. And he would have difficulty acting on emotional versus reasoning decisions out. He had a dependent personality. And, quite frankly, I think you would agree that all the witnesses described George as someone maybe with a dependent personality in that he was totally devoted to his wife. And that's consistent with Dr. Smith's assessment. He needed to be in a relationship. He was clingy. And he would quickly attach to another person.
As judge Adler found, because Wenzel was able to fully present Dr. Smith's testimony regarding the likely effects of his mental health conditions on his ability to form the requisite mental state, and had the ability to argue to the jury that these conditions prevented him from forming malice aforethought, the sustaining of the objection to Dr. Smith's testimony regarding the ultimate issue for the jury to decide was not so prejudicial that it rendered his trial fundamentally unfair. The jury was able to draw the same conclusions to which Wenzel requested Dr. Smith to testify. Wenzel is not entitled to habeas relief on this basis.
c. Petitioner is not entitled to habeas relief on Claim 3.
Wenzel claims his Fifth and Fourteenth Amendment rights were violated when his videotaped statements to the police were admitted. He contends those statements were obtained in violation of Miranda v. Arizona, 384 U.S. 436 (1966).
In denying Wenzel's claim, the state appellate court first found that when "[v]iewed in context Wenzel did not unambiguously invoke his right to silence." The state appellate court continued:
When [Wenzel] first arrived, he handed police a note confessing to the killing of his wife and asked to speak with a homicide detective. This indicates a desire to speak concerning the crime. Thereafter, after being given Miranda warnings, when the detectives began questioning him concerning the crime, Wenzel replied, "It's all right here," pointing to the note. This statement was not an invocation, but rather an explanation that the note described what happened. Next, Wenzel, in response to questioning, asked, "(D)idn't you say that I could be silent if I wanted to?", to which the detectives responded in the affirmative. This was at most a question to police about his rights, not an invocation, following which the detectives could properly question Wenzel further to determine if he wished to talk to them.
The statement, "Maybe I'll talk to you later. I don't want to talk right now," taken in context, is ambiguous. A reasonable police officer under the circumstances could understand that statement not as an assertion of the right to silence, but rather an expression of a willingness to talk when Wenzel was ready.
After Wenzel made that statement, the detectives inquired concerning Lyn's medical records, a consent to search, and a handwriting exemplar. These types of inquiries do not constitute interrogation that implicates Miranda rights. (People v. Woolsey (1979) 90 Cal.App.3d 994, 1001; Muniz, supra, 496 U.S. at pp. 601-602.) Further, Wenzel voluntarily discussed these issues, indicating he was not invoking the right to silence. A review of the videotaped interview also establishes that the detectives' continued questioning did not amount to "repeated efforts to wear down his resistence and make him change his mind." (Michigan v. Mosley, supra, 423 U.S. at pp. 105-106.)
As judge Adler concluded, the state court's conclusion was not an unreasonable application of clearly established federal law.
The Fifth Amendment provides that "no person . . . shall be compelled in any criminal case to be a witness against himself." U.S. CONST. amend. V. From that, the Supreme Court has established that a person's "Fifth Amendment privilege is available outside of criminal court proceedings and serves to protect persons in all settings in which their freedom of action is curtailed in any significant way from being compelled to incriminate themselves." Miranda v. Arizona, 384 U.S. at 467;Cooper v. Dupnik, 963 F.2d 1220, 1237 (9th Cir. 1992) (En banc) (Holding there "is no question that the Constitutional holding inMiranda is `clearly established' law."); Malloy v. Hogan, 378 U.S. 1, 6 (1964) (Holding that "the Fifth Amendment's exception from compulsory self-incrimination is also protected by the Fourteenth Amendment against abridgment by the States."). The Supreme Court in Miranda also established that a suspect "must be warned that he has a right to remain silent, that any statement he does make may be used as evidence against him, and that he has a right to the presence of an attorney, either retained or appointed." Miranda, 384 U.S. at 444.
At issue here is Wenzel's Miranda right to remain silent. On that note, Miranda requires that, once the warnings are given, "if the individual indicates in any manner, at any time prior to or during questioning, that he wishes to remain silent, the interrogation must cease." Miranda, 384 U.S. at 473-74. When the invocation of a Miranda right is ambiguous or equivocal, however, the police may continue questioning. See, Davis v. United States ("Davis"), 512 U.S. 453, 460-62 (1994). See also, Paulino v. Castro, 371 F.3d 1083, 1087 (9th Cir. 2004) ("[I]f a suspect makes a reference to an attorney that is ambiguous or equivocal in that a reasonable officer in light of the circumstances would have understood only that the suspect might be invoking the right to counsel Supreme Court precedent does not require the cessation of questioning."). The question of whether an invocation is ambiguous or equivocal is an objective one: what "a reasonable officer in light of the circumstances would have understood." Id. at 459. More specifically, even statements by a juvenile that "he did not know the answer to a question put to him or that he could not, or would not, answer the question . . . [are] not assertions of his right to remain silent." Fare v. Michael C., 442 U.S. 707, 727 (1979).
While Davis expressly applies to the question of whether a defendant has invoked his right to counsel, the Supreme Court has not held that Davis only applies in such situation, and courts have extended Davis where the question is whether a person has invoked his right to remain silent. See, e.g., U.S. v. Banks, 78 F.3d 1190, 1197 (7th Cir. 1996) ("[A]n ambiguous invocation of the right to remain silent does not require that the police cease all questioning."); Medina v. Singletary, 59 F.3d 1095, 1100 (11th Cir. 1995) ("Law enforcement officers are not required to terminate an interrogation unless the invocation of the right to remain silent is unambiguous."); Coleman v. Singletary, 30 F.3d 1420, 1424 (11th Cir. 1994) (Noting that prior 11 the Circuit rule requiring the cessation of all questioning even when a suspect ambiguously invokes a Miranda right was overruled by Davis).
Determination of whether a suspect has invoked his or her right to remain silent should be viewed in the context of the entire conversation between the suspect and the police. See, e.g., Simmons v. Bowersox, 235 F.3d 1124, 1131 (8th Cir. 2001) ("To determine whether a defendant has unequivocally invoked the right to remain silent, the defendant's statements are considered as a whole."); Medina v. Singletary, 59 F.3d 1095, 1104 (11th Cir. 1995) ("[A] court must consider the entire context in determining whether a suspect has invoked his or her constitutional rights.").
The facts surrounding Wenzel's "Miranda claim" are as follows. The evening after his wife's death, Wenzel went to the police station and asked to speak with a homicide detective. When Sergeant Howard Williams greeted Wenzel, Wenzel handed Sgt. Williams a note he had authored and a house key, and asked Sgt. Williams to read the note. The note read:
"My name is George Wenzel. Lyn Wenzel is my wife of more than 29 ½ years. We have had a pack ( sic) that we would help each other end (our) life when the time had come. Last Saturday Lyn took some sleeping pills from her mother and on Monday nite ( sic) took many pills with dinner. After she went to sleep, I went up and stopped the breathing, I did this because she is the love of my life and I wanted to stop the pain and suffering. I have no regrets because this is what she wanted. My pain and suffering will start now and last the rest of my life. Her body is in bed upstairs at 4072 Loma Riviera Circle."
The detectives then interviewed Wenzel, which was videotaped. Before the interview, there is no dispute that the police advised Wenzel of his rights under Miranda. The following exchange then took place between Wenzel and the detectives:
"(Detective Young): . . . Do you want to tell us what happened?
"(Wenzel): It's all right here. (Pointing to the note.)
"(Detective Young): Well, the note is pretty brief and life is pretty long. . . . (C)an you start to tell me first of all how long you've been married, where you got married, that sort of thing.
"(Wenzel): (Shakes his head in the negative.) . . . (D)idn't you say that I could be silent if I wanted to?
"(Detective Young): Yeah.
"(Wenzel): Yeah.
"(Detective Young): So you don't want to talk to us?
"(Wenzel): ( Shakes head `no.')
"(Detective Young): I'm sure there's a lot of questions that we don't . . . aren't gonna know until we talk to you about `em. I mean we don't even . . . we're not even at the scene yet.
"(Wenzel): Maybe I'll talk to ya later. I don't want to talk right now."
"(Detective Young): Okay.
"(Wenzel): Okay (nodding head in affirmative)." (Italics added.)
Thereafter, the detectives stopped questioning Wenzel regarding the killing of his wife. The detectives instead questioned Wenzel about Lyn's medical condition and obtaining her records. Wenzel cooperated; he signed a consent form for the search of his residence and a release form for Lyn's medical records.
Six minutes later, the following exchange occurred:
"(Detective Young): I guess my question (Wenzel) is you wrote the letter and you did come down, I mean you're taking responsibility for what happened here, uh, is it just right now you don't feel like talkin' or you just don't want to tell us what happened or . . .?
"(Wenzel): I don't know what else I could say. I mean it's all right here. (Pointing to note.)
"(Detective Young): Well I have a lot of questions.
"(Wenzel): I'm sure you do.
"(Detective Young): Okay.
"(Detective Christinziani): It's like (Detective Young) said (,) your letter is pretty short but life is pretty long.
"(Detective Young): And there's a lot . . . of things that are going on here in 29 years that we'd like to have some background on and . . . on your wife's condition, her medical problems and what led up to yesterday?
"(Wenzel): Well you have to . . . check out Kaiser.
"(Detective Young): Okay."
The detectives then had Wenzel fill out another form and discussed with him the process of what was going to happen. The detectives twice reminded Wenzel that, although they had questions, it was "entirely up to (him)" if he wanted to tell them what happened. Wenzel responded, "Okay, well maybe later."
Twenty-five minutes later, Detective Young said to Wenzel:
"(Detective Young): "You know (our fact gathering) is based on the cooperation of the people we're dealing with. You know, you have absolutely every right not to talk to us . . . I have a lot of questions . . ."
Shortly after, Wenzel began talking to the detectives, detailing how and why he killed his wife.
As judge Adler found, there is no question that Wenzel was informed of his Miranda rights prior to any questioning. The question is whether the state court's finding that Wenzel did not unambiguously assert his right to remain silent was an unreasonable application of clearly established federal law. It was not.
The state court's finding that "a reasonable officer in light of the circumstances" would not have understood Wenzel's statement "maybe I'll talk to ya later" to be un unequivocal assertion of his right to remain silent was not an unreasonable application of clearly established federal law. See, Davis, 512 U.S. at 459. Under the circumstances, a reasonable officer could have understood Wenzel to indicate that he was willing to discuss the killing later, but not at that time. Id.; see also, United States v. Thierman, 678 F.2d 1331, 1335-36 (9th Cir. 1982) ("The only other event relevant to whether Thierman invoked his right to remain silent occurred when he inquired, `Can we talk about it tomorrow?' The district judge was not required to interpret Thierman's question as an invocation of his right to remain silent. The question is more easily construed as a mere request to postpone interrogation on a single subject than an outright refusal to answer any more questions.").
In his objections, Wenzel appears to argue that his statement "maybe I'll talk to ya later" is not controlling since it occurred after he had unequivocally invoked his right to remain silent by shaking his head "no" in response to the question "So you don't want to talk to us?" However, such gestures are susceptible to various reasonable interpretations. A head shake could have been intended as an answer to a question or instead it could have been intended as a refusal to answer the specific question or all questions. See, U.S. v. Gordon, 895 F.2d 932, 941 (4th Cir. 1990); see also, Holland v. Donnelly, 216 F.Supp.2d 227, 239 (S.D.N.Y. 2002) (No implied invocation where suspect remained silent and beat his head on interview table in response to particular question). See also, U.S. v. Lopez-Diaz, 630 F.2d 661, 664 (9th Cir. 1980) ("A person in custody may selectively waive his right to remain silent by indicating that he will respond to some questions, but not to others.").
When the entire discussion is taken in context, it is far from clear that Wenzel was invoking his right to remain silent. A more natural interpretation is that Wenzel was engaging in conversational give-and-take and was not attempting to communicate a desire to remain silent. Certainly, Wenzel did not remain silent, he continued to talk. Moreover, "what the [Supreme] Court sought to interdict in Miranda were those situations in which a person has indicated his desire to exercise his constitutional right of silence but the police refuse to take `no' for an answer. Disregarding his constitutional claim, they continue to ask questions." Jennings v. U.S., 391 F.2d 512, 515 (1968). As the state court found based on the review of the video-tape, no such techniques were used in this case.
Even if Wenzel shaking his head "no" was an unequivocal indication that he wished to remain silent, and that the continuing interrogation violated Miranda, as the state court also found the alleged error was harmless. As the state court explained:
Assuming the court did err in admitting the police interview with Wenzel, the error was harmless beyond a reasonable doubt. (See People v. Sims (1993) 5 Cal.4th 405, 447-448 (harmless beyond a reasonable doubt standard applies to confession improperly admitted in violation of Miranda rights).) Wenzel confessed to the police in his handwritten note delivered to them prior to the interview. In that note he stated that he stopped Lyn's breathing, and he did so pursuant to a suicide pact to stop her suffering. He repeated the same story to four separate witnesses, including his new wife Rehm. [Footnote: Wenzel briefly asserts that he could have resisted the people's attempt to elicit Rehm's testimony regarding Wenzel's confession to her on the grounds of marital privilege. However, since the confession was made to Rehm before they were married, the marital privilege does not apply. (Evidence. Code, § 972, subd. (f).)]. All these statements essentially told the same story Wenzel told police in his videotaped interview. Wenzel's other confessions, substantially the same as the interview with police, render any error in admitting the interview harmless beyond a reasonable doubt. ( People v. Lujan (2001) 92 Cal.App.4th 1389, 1403.) Finally, the pathologist's testimony confirmed that the cause of Lyn's death was from asphyxiation. Thus, Wenzel's claim that he would have been able to argue he only passively assisted Lyn's suicide but for the videotaped confession is contrary to the overwhelming evidence that she died at his hands. Any error by the court in admitting Wenzel's videotaped confession was harmless beyond a reasonable doubt.
On federal habeas review of a state court decision finding harmless the admission of statements obtained in violation ofMiranda, "the standard for determining whether habeas relief must be granted is whether the . . . error `had a substantial and injurious effect or influence in determining the jury's verdict.'" Brecht v. Abrahamson, 507 U.S. 619, 623, 637 (1993) (Quoting and adopting harmless error standard created inKotteakos v. United States, 328 U.S. 750, 776 (1946)); see Henry v. Kernan, 197 F.3d 1021, 1029 (9th Cir. 1999) (ApplyingBrecht standard to the admission of a coerced confession).
In applying this test, the judge asks directly, "`Do I, the judge, think that the error substantially influenced the jury's decision?'" O'Neal v. McAninch, 513 U.S. 432, 436 (1995). If a federal habeas judge is in "grave doubt" about whether a constitutional trial error "had substantial and injurious effect or influence in determining the jury's verdict," the error is not harmless and "the petitioner must win." O'Neal v. McAninch, 513 U.S. at 436, 445. In Payton v. Woodford, 346 F.3d 1204 (9th Cir. 2003) (En banc), the court stated: "In the course of this inquiry, it is the State that bears the `risk of doubt.' . . . We look to the State to instill in us a `fair assurance' that there was no effect on the verdict. . . . Only if the State has persuaded us that there was no substantial and injurious effect on the verdict do we find the error harmless." Id. at 1217 (Citations omitted).
As judge Adler found the admission of Wenzel's videotaped statements "was clearly harmless." Wenzel's statements were cumulative of the other overwhelming evidence against him. In his objections, Wenzel argues, like he did in state court, the admission of the video-taped confession precluded him from presenting a defense that he only passively assisted the victim's suicide. However, as the state court concluded, the pathologist's findings confirmed that the cause of death was from asphyxiation.
The Court does not have a "grave doubt" that the introduction of the videotaped police interrogation had a substantial and injurious effect or influence on the jury's verdict. Wenzel's contention that he could have pursued a different defense strategy of passively assisted suicide had the videotape been suppressed is without merit. The very note he handed to the police established that he stopped the victim's breathing. So too did the unchallenged physical evidence, wich established that the victim was asphyxiated. At least one unbiased witness, Wenzel's new wife at the time of the trial, testified to Wenzel's confession. As to the issue of bias of the other three corroborating witnesses, this Court "must respect the province of the [fact finder] to determine the credibility of witnesses, resolve evidentiary conflicts, and draw reasonable inferences from proven facts by assuming that the [fact finder] resolved all conflicts in a manner that supports the verdict," and must consider the evidence "in the light most favorable to the prosecution." Jackson v. Virginia, 443 U.S. 307, 319-24 (1979). The bias of these witnesses was a matter for the jury to determine.
Thus, assuming the police interrogation was conducted in violation of Miranda and its admission amounted to a constitutional trial error, the Court finds that such error did not have a "substantial and injurious effect or influence in determining the jury's verdict," and the error was harmless.O'Neal, 513 U.S. at 436, 445. Accordingly, the Court finds that the state court's adjudication of Claim 3 was neither contrary to, nor involved an unreasonable application of, clearly established federal law, and was not based on an unreasonable determination of the facts. Wenzel is not entitled to habeas relief on this basis.
IV. CONCLUSION
For the reasons stated above, the Court fully ADOPTS judge Adler's Report. Wenzel is not entitled to habeas relief, and his Petition is DENIED. The Clerk shall close the file.
SO ORDERED.