Murphy v. Madden

1

2

3

4

5

6

7

8 UNITED STATES DISTRICT COURT

9 SOUTHERN DISTRICT OF CALIFORNIA

10

11 ALFRED MURPHY, Case No.: 21-cv-1600-LAB-DDL

12 Petitioner,

ORDER:

13 v.

(1) DENYING PETITION FOR

14 RAYMOND MADDEN,

WRIT OF HABEAS CORPUS.

15 Respondent. [Dkt. 1]; and

16

(2) DENYING CERTIFICATE OF

17 APPEALABILITY

18

19 I. INTRODUCTION

20 Petitioner Alfred Murphy, a state prisoner, filed a Petition for Writ of Habeas

21 Corpus pursuant to 28 U.S.C. § 2254 (“Petition” or “Pet.”), challenging his San

22 Diego Superior Court conviction in case number SCE359335. (See Dkt. 1 at 1).1

23 The Court has reviewed the Petition and Memorandum of Points and Authorities

24 in Support of the Petition, (Dkt. 1, 1-2), the Answer and Memorandum of Points

25 and Authorities in Support of the Answer, (Dkt. 8, 8-1), the lodgments, the

26

27 1 Page numbers for the Petition, Answer, Memorandum of Points and Authorities

in Support of the Answer and Traverse cited in this Order refer to those imprinted

28

1 Traverse, (Dkt 10), and all the supporting documents submitted by both parties.

2 For the reasons discussed below, the Court DENIES the Petition and DENIES a

3 certificate of appealability.

4 II. FACTUAL BACKGROUND

5 This Court gives deference to state court findings of fact and presumes them

6 to be correct; Murphy may rebut the presumption of correctness, but only by clear

7 and convincing evidence. See 28 U.S.C. § 2254(e)(1); see also Parke v. Raley,

8 506 U.S. 20, 35–36 (1992) (holding findings of historical fact, including inferences

9 properly drawn from those facts, are entitled to statutory presumption of

10 correctness). The California Court of Appeal2 summarized the facts as follows:

11 The Prosecution Case

12 On March 19, 2016, Prince Brown, a long-haul truck

driver from Texas, checked into a motel room in El Cajon.

13

[Danielle] Dumont was standing with Brown when he

14 checked into the motel and had her own suitcase. Dumont

later claimed that whenever Brown was in San Diego, he

15

would spend time with her. After Brown checked into room

16 234, he talked by phone with a friend in Texas and sent a

photograph of himself and Dumont in the room. Within an

17

hour after Brown and Dumont entered room 234, Murphy

18 was seen entering room 226.

19 The strongest evidence at trial revealing the

defendants’ involvement in Brown’s murder was the

20

motel’s security camera video footage. The footage

21 showed Dumont and another unidentified woman coming

in and out of room 234 on the night of March 19, but Brown

22

never left the room. Throughout the night and the next

23 morning, Dumont was also seen going into other rooms at

the motel and talking with other individuals, later identified

24

as including Murphy and Smith.

25

The next morning, about two hours before Brown’s

26 murder, Murphy was seen on the video footage walking

27

2 Murphy’s appeal was consolidated with those of his co-defendants, Dumont and

28

1 around the motel with an object under his shirt at hip level.

An expert later opined the item was consistent with the

2

shape of a firearm and that Murphy was carrying the object

3 in the same manner that a person would carry a firearm.

Around the same time, Dumont and the unidentified

4

woman reentered room 234, Brown’s room. Approximately

5 one hour before Brown’s murder, the other woman left

room 234 and never returned.

6

At about 9:30 a.m., Dumont left room 234 and met

7

with Smith at room 226, Murphy’s room. The two entered

8 the room. Shortly thereafter, Dumont walked out, holding a

cell phone in one hand and a keycard in her other hand.

9

She was wearing a dress; the video showed no bulges in

10 the dress, suggesting she was not concealing a firearm or

other object.

11

Dumont rejoined Brown, who was alone in room 234.

12

Murphy slowly followed Dumont down the hall, while Smith

13 remained behind watching Murphy. As Murphy

approached Brown’s room, Smith made a knocking motion

14

in the air with his hand. Murphy, now wearing gloves,

15 responded by knocking on the door of the room next to

room 234. Following the knock, Murphy reached across his

16

body to his hip, where he was still carrying an object

17 consistent with the shape of a gun hidden under his shirt.

When no one answered, Murphy walked back down the

18

hall toward Smith. Murphy then walked toward Brown’s

19 room but stopped in front of the wrong door again. Before

he knocked, Smith motioned toward him and Murphy

20

moved to room 234, Brown’s room. Murphy then entered

21 room 234 at 9:35 a.m., joining Dumont and Brown inside.

22 At approximately the same time, the friend Brown

had called the evening before received an incoming call

23

from Brown. The friend testified that when he answered,

24 Brown did not respond and the friend heard only silence.

The friend then heard a woman say something with an

25

angry tone, a male voice saying, “shut up,” and then a gun

26 shot.

27 The security camera footage showed Murphy

28 running out of room 234 a little under a minute after he

1 entered. As he ran down the hall, Murphy was holding onto

the area around his belt buckle and clutching what

2

appeared to be paper money in his other hand. Murphy

3 then left the motel.

4 Seconds after Murphy’s exit, Dumont left Brown’s

room carrying several bags with her and headed to room

5

226. Shortly before Dumont’s arrival at room 226, Smith left

6 that room and carried bags previously in the possession of

Murphy down to the parking lot. He then returned to the

7

hallway outside room 226 to wait for Dumont.

8

Dumont reappeared from room 226 in a new set of

9 clothes and the two returned to the hallway outside room

234. Smith and Dumont appeared to be trying to open the

10

window and door of room 234. [Footnote 3: The police later

11 found women’s clothing and cell phones inside Browns

room, suggesting Dumont locked herself out of the room

12

after the murder and was attempting to get back in to clear

13 the room of her possessions.] In another attempt to get

back inside the motel room, Dumont put on sunglasses and

14

a glove and attempted to break the window of room 234

15 with an object wrapped in a towel. After she failed to break

the window, Dumont and Smith carried some bags down

16

to the parking lot, got into a car together, and drove away.

17

Several hours later, a housekeeper found Brown’s

18 body in room 234. Brown had been shot in the back of his

head, later revealed to be by a gun near or against his

19

head. His wound was consistent with being shot while he

20 was on his hands and knees.

21 During a search of the room, the police found items

22 scattered around, including both male and female clothing,

two cell phones, a large box of condoms, an opened

23 condom wrapper, and a copper jacketing for a bullet. No

24 gun, wallet, or paper money was found in the room.

25 Several weeks later, motel staff found Brown’s wallet

in the motel’s laundry room, where it was found inside a

26 plastic bag marked with a notation that it came from room

27 226 (the same room Dumont entered after leaving Brown’s

room immediately after the murder).

28

1 Subsequent DNA testing of the items found in

Brown’s room identified Dumont as a likely contributor to

2

the DNA found on one of the cell phones. DNA found on

3 Brown’s wallet also matched Dumont. A genital swab taken

from Brown’s body also picked up DNA that matched

4

Dumont.

5

At trial, a confidential informant testified that while he

6 was in custody, Smith told him about the crime. Smith told

the informant that “the girl” went into the room to get money

7

from the “trick,” her male customer, but when Smith sent

8 “his boy” into the room to rob the man, the man “came up

dead.” Smith did not name the “girl” or the “boy.”

9

[Footnote 4: At trial, Smith attempted to undermine the

10 credibility of the informant with testimony from a retired

prosecutor who opined that the informant received a

11

reduced sentence based on his testimony. The District

12 Attorney presented evidence disputing the claim that the

informant received favorable treatment.]

13

The jury also heard evidence about a prior incident

14

where a man hired Dumont for sex at a casino, but she ran

15 out of the room with his money.

16 The Defense Case

17 Of the three defendants, only Murphy testified in his

18 own defense. At trial, he claimed that he went to the motel

on the night before the murder to sell methamphetamine.

19 He later ran into Smith, who was his girlfriend’s cousin. On

20 the morning of Brown’s murder, Murphy testified that he

gave Dumont drugs without payment after Smith vouched

21 for her. He later went to collect payment from Dumont,

22 claiming he first put on gloves “for intimidation purposes.”

According to Murphy, he went into room 234 to collect the

23 money but saw a body on the ground, so he quickly

24 grabbed some money off a nightstand and fled. Murphy

denied having a gun and denied being involved in Brown’s

25 murder.

26 Dumont did not testify but called witnesses to testify

27 that she had an existing relationship with Brown, but was

not previously associated with Murphy or Smith before the

28

1 (Dkt. 9-50, Resp’t Lodgment No. 9 at 4–8, People v. Dumont, No. D074163 (Cal.

2 Ct. App. Apr. 21, 2020)).

3 III. PROCEDURAL BACKGROUND

4 On September 1, 2016, the District Attorney filed an Information charging

5 Murphy and his two co-defendants, Dumont and Smith, with murder under

6 California Penal Code § 187(a). (Dkt. 9-6, Resp’t Lodgment No. 1 (“Clerk’s Tr.”)

7 vol. 6 at 1242–43). The Information also alleged that Murphy personally

8 discharged a firearm causing great bodily injury, Cal. Penal Code § 12022.53(d),

9 and that Murphy had suffered a violent felony prison prior, § 667.5(a), and a prior

10 strike conviction, §§ 667(b)–(i), 1179.12. (Clerk’s Tr. vol. 6 at 1243–44).

11 Following a jury trial, Murphy was found guilty of first-degree murder, and

12 the jury found the firearm allegation to be true. (Dkt. 9-10, Clerk’s Tr. vol. 9,

13 at 2301; see also Dkt. 9-37, Resp’t Lodgment No. 2 (“Rep.’s Tr.”) vol. 21

14 at 2876–79). In a bifurcated bench trial, the court found the violent felony prison

15 prior and the strike prior allegations to be true. (Dkt. 9-10, Clerk’s Tr. vol. 9

16 at 2302–03; Dkt. 9-38, Rep.’s Tr. vol. 21 at 2894–95). The trial court sentenced

17 Murphy to 25 years-to-life for the murder conviction and 25 years-to-life for the

18 firearm enhancement, to run consecutively, plus an additional 5-year term for the

19 prior serious felony enhancement, for a total sentence of 50 years-to-life, plus five

20 years. (Dkt. 9-10, Clerk’s Tr. vol. 9 at 2316).

21 Murphy appealed his conviction to the California Court of Appeal. (See

22 Dkt. 9-44, Resp’t Lodgment No. 3). On appeal, Murphy argued the trial court erred

23 in failing to sever his trial from his co-defendants’ and in admitting testimony of an

24 expert witness regarding Murphy’s possession of a gun. (See id.). The appellate

25 court affirmed his conviction on April 21, 2020. (See Dkt. 9-50, Resp’t Lodgment

26 No. 9). Murphy then filed a petition for review with the California Supreme Court,

27 raising the same issues. (See Dkt. 9-51, Resp’t Lodgment No. 10). The court

28 denied his petition without comment or citation on June 24, 2020.

1 (Dkt. 9-52,Resp’t Lodgment No. 12).

2 Murphy filed his federal petition for writ of habeas corpus pursuant to

3 28 U.S.C. § 2254 on September 23, 2021. (Dkt. 1, Pet.). Respondent filed an

4 Answer and Memorandum of Points and Authorities in Support on January 12,

5 2022. (Dkt. 8, 8-1). Murphy filed a Traverse on January 24, 2022. (Dkt. 10,

6 Traverse).

7 IV. SCOPE OF REVIEW

8 Murphy’s Petition is governed by the provisions of the Antiterrorism and

9 Effective Death Penalty Act of 1996 (“AEDPA”). See Lindh v. Murphy, 521 U.S.

10 320, 326–29 (1997). Under AEDPA, a habeas petition will not be granted unless

11 the adjudication: (1) resulted in a decision that was contrary to, or involved an

12 unreasonable application of clearly established federal law; or (2) resulted in a

13 decision that was based on an unreasonable determination of the facts in light of

14 the evidence presented at the state court proceeding. 28 U.S.C. § 2254(d); Early

15 v. Packer, 537 U.S. 3, 8 (2002).

16 A federal court isn’t called upon to decide whether it agrees with the state

17 court’s determination; rather, the court applies an extraordinarily deferential

18 review, inquiring only whether the state court’s decision was objectively

19 unreasonable. See Yarborough v. Gentry, 540 U.S. 1, 4 (2003); Medina v.

20 Hornung, 386 F.3d 872, 877 (9th Cir. 2004). In order to grant relief under

21 § 2254(d)(2), a federal court “must be convinced that an appellate panel, applying

22 the normal standards of appellate review, could not reasonably conclude that the

23 finding is supported by the record.” See Taylor v. Maddox, 366 F.3d 992, 1001

24 (9th Cir. 2004).

25 A federal habeas court may grant relief under the “contrary to” clause if the

26 state court applied a rule different from the governing law set forth in Supreme

27 Court cases, or if it decided a case differently than the Supreme Court on a set of

28 materially indistinguishable facts. See Bell v. Cone, 535 U.S. 685, 694 (2002).

1 The court may grant relief under the “unreasonable application” clause if the state

2 court correctly identified the governing legal principle from Supreme Court

3 decisions but unreasonably applied those decisions to the facts of a particular

4 case. Id. Additionally, the “unreasonable application” clause requires that the state

5 court decision be more than incorrect or erroneous; to warrant habeas relief, the

6 state court’s application of clearly established federal law must be “objectively

7 unreasonable.” See Lockyer v. Andrade, 538 U.S. 63, 75 (2003). “[A] federal

8 habeas court may not issue the writ simply because that court concludes in its

9 independent judgment that the relevant state-court decision applied clearly

10 established federal law erroneously or incorrectly. Rather, that application must

11 also be unreasonable.” Williams v. Taylor, 529 U.S. 362, 411 (2000). “A state

12 court’s determination that a claim lacks merit precludes federal habeas relief so

13 long as ‘fairminded jurists could disagree’ on the correctness of the state court’s

14 decision.” Harrington v. Richter, 562 U.S. 86, 101 (2011) (quoting Yarborough v.

15 Alvarado, 541 U.S. 652, 664 (2004)).

16 Where there is no reasoned decision from the state’s highest court, the

17 Court “looks through” to the underlying appellate court decision and presumes it

18 provides the basis for the higher court’s denial of a claim or claims. See Ylst v.

19 Nunnemaker, 501 U.S. 797, 805–06 (1991). If the dispositive state court order

20 doesn’t “furnish a basis for its reasoning,” federal habeas courts must conduct an

21 independent review of the record to determine whether the state court’s decision

22 is contrary to, or an unreasonable application of, clearly established Supreme

23 Court law. See Delgado v. Lewis, 223 F.3d 976, 982 (9th Cir. 2000), overruled on

24 other grounds by Andrade, 538 U.S. at 75–76; accord Himes v. Thompson, 336

25 F.3d 848, 853 (9th Cir. 2003). However, a state court need not cite Supreme Court

26 precedent when resolving a habeas corpus claim. See Early, 537 U.S. at 8. “[S]o

27 long as neither the reasoning nor the result of the state-court decision contradicts

28 [Supreme Court precedent],” the state court decision will not be “contrary to”

1 clearly established federal law. Id. Clearly established federal law, for purposes of

2 § 2254(d), means “the governing principle or principles set forth by the Supreme

3 Court at the time the state court renders its decision.” Andrade, 538 U.S. at 72.

4 V. DISCUSSION

5 Murphy’s Petition raises two claims. First, he argues the failure to sever his

6 trial amounted to a violation of his right to due process and his right to confront

7 witnesses against him. (Dkt. 1-2 at 18–25). Second, Murphy argues his due

8 process rights were violated when the trial court permitted an expert to give

9 improper testimony. (Id. at 32–37).

10 A. Severance

11 In his first claim Murphy argues the failure to sever his trial from that of his

12 co-defendants violated his right to due process rights because the three

13 defendants had antagonistic defenses. (Dkt. 1-2 at 13–25). He also contends his

14 right to confrontation3 was violated by the failure to sever his trial because a

15 jailhouse informant was permitted to testify as to statements made by Murphy’s

16 co-defendant, Smith, who didn’t testify at trial. (See id.)

17 1. State Court Opinion

18 Murphy raised this claim in his petition for review to the California Supreme

19 Court, which was denied without comment or citation. (Dkt. 9-51, 9-52, Resp’t

20 Lodgment Nos. 11, 12). Because there is no reasoned opinion from the state high

21 court, this Court must look through to the last reasoned state court decision to

22 address the claim. See Ylst, 501 U.S. at 805–06. Here, that is the opinion of the

23 California Court of Appeal. In denying the claim, the appellate court stated:

24 “‘The applicable law is settled. The Legislature has

25

3 In his Petition, Murphy raises this claim under both the Due Process and

26

Confrontation Clauses. (See Dkt. 1-2 at 13, 18–19). In his Traverse, however,

27 Petitioner states he is proceeding “now with only the due process violation.” (See

Dkt. 10 at 4 n.1). The Court will nonetheless address both bases for relief as to

28

1 expressed a preference for joint trials; therefore, two or

more defendants jointly charged with crimes must be tried

2

together unless the court orders separate trials. (Pen.

3 Code, § 1098; [Citations].) Joint trials promote efficiency

and help avoid inconsistent verdicts. [Citations.]

4

“[I]mportant concerns of public policy are served if a single

5 jury is given a full and fair overview of the defendants’ joint

conduct and the assertions they make to defend against

6

[the] ensuing charges.” [Citation.] The court has discretion

7 to order separate trials if there is an incriminating

confession, prejudicial association, likely confusion due to

8

evidence on multiple counts, conflicting defenses, or the

9 possibility that a codefendant might provide exonerating

testimony at a separate trial. [Citation.] Prejudicial

10

association might exist if “the characteristics or culpability

11 of one or more defendants [is] such that the jury will find

the remaining defendants guilty simply because of their

12

association with a reprehensible person, rather than

13 assessing each defendant’s individual guilt of the crimes at

issue.” [Citation.] We review the court’s denial of severance

14

for abuse of discretion based on the facts as of the time of

15 the ruling. If the court properly denied severance at the

time, the reviewing court may reverse a judgment only if it

16

finds that the joint trial caused gross unfairness that denied

17 due process. [Citations.]’” (People v. Anderson (2018) 5

Cal.5th 372, 386–387.)

18

“When defendants are charged with having

19

committed ‘common crimes involving common events and

20 victims,’ as here, the court is presented with a ‘classic case’

for a joint trial.” (People v. Coffman and Marlow (2004) 34

21

Cal.4th 1, 40.) Simply because the defenses may be

22 antagonistic does not compel severance. “‘“If the fact of

conflicting or antagonistic defenses alone required

23

separate trials, it would negate the legislative preference

24 for joint trials and separate trials ‘would appear to be

mandatory in almost every case.’” [Citation.]’ [Citation.]

25

Instead, antagonistic defenses support severance ‘only

26 where the acceptance of one party’s defense precludes the

other party’s acquittal.’ [Citations.] If the moving party’s

27

guilt can be established by sufficient independent

28 evidence, ‘it is not the conflict alone that demonstrates . . .

1 guilt,’ and severance is not required. [Citations.]” (People

v. Winbush (2017) 2 Cal.5th 402, 456.)

2

Joint trials may also be inappropriate when the

3

prosecution seeks to introduce a statement by a

4 non-testifying codefendant implicating another defendant.

Where a defendant’s prior statement is facially

5

incriminating of the codefendant, it generally may not be

6 admitted at a joint trial, even with a limiting instruction,

unless it is properly sanitized. (Bruton, supra, 391 U.S. at

7

pp. 135–136; Aranda, supra, 63 Cal.2d at p. 530; People

8 v. Capistrano (2014) 59 Cal.4th 830, 874, overruled on

other grounds in People v. Hardy (2018) 5 Cal.5th 56,

9

103–104.) However, “‘“this narrow exception should not

10 apply to confessions that are not incriminating on their

face, but become so only when linked with other evidence

11

introduced at trial.”’” (Capistrano, at p. 869.)

12

Bruton was expressly premised on a defendant’s

13 Confrontation Clause rights. (Bruton, supra, 391 U.S. at pp.

126–128.) “The Confrontation Clause of the Sixth

14

Amendment provides: ‘In all criminal prosecutions, the

15 accused shall enjoy the right . . . to be confronted with the

witnesses against him.’ In Crawford v. Washington [(2004)

16

541 U.S. 36], [the United States Supreme Court] held that

17 this provision bars ‘admission of testimonial statements of

a witness who did not appear at trial unless he was

18

unavailable to testify, and the defendant had had a prior

19 opportunity for cross-examination.’ A critical portion of this

holding . . . is the phrase ‘testimonial statements.’ Only

20

statements of this sort cause the declarant to be a ‘witness’

21 within the meaning of the Confrontation Clause. [Citation.]

It is the testimonial character of the statement that

22

separates it from other hearsay that, while subject to

23 traditional limitations upon hearsay evidence, is not subject

to the Confrontation Clause.” (Davis v. Washington (2006)

24

547 U.S. 813, 821; accord, People v. Hopson (2017) 3

25 Cal.5th 424, 431.) If the statement in question is

nontestimonial hearsay, the Bruton court’s confrontation

26

clause analysis is inapplicable. (See, e.g. People v. Cortez

27 (2016) 63 Cal.4th 101, 129; Almeda, supra, 19 Cal.App.5th

at pp. 362-363.) [Footnote 7: We apply only Bruton here

28

1 because “[t]o the extent Aranda ‘require[d] the exclusion of

relevant evidence that need not be excluded under federal

2

constitutional law, it was abrogated in 1982 by the “truth-

3 in-evidence” provision of Proposition 8 (Cal. Const., art. I,

§ 28, subd. (d)).’ (People v. Fletcher (1996) 13 Cal.4th 451,

4

465)” (People v. Almeda (2018) 19 Cal.App.5th 346, 362,

5 fn. 5 (Almeda).)]

6 It is well established that statements to a cellmate in

an informal setting, even when that cellmate acts as an

7

informant by later providing information to law enforcement

8 about the defendant’s statements, are not testimonial.

(Almeda, supra, at pp. 362-363; see also Davis v.

9

Washington, supra, 547 U.S. at p. 825 [statements from

10 one prisoner to another, made unwittingly to an informant,

are “clearly nontestimonial”].) If a statement is

11

non-testimonial, “‘it does not implicate the confrontation

12 clause, and the issue is simply whether the statement is

admissible under state law as an exception to the hearsay

13

rule.’” (People v. Arceo (2011) 195 Cal.App.4th 556, 573.)

14

C. Analysis

15

Dumont and Murphy contend the trial court abused

16 its discretion in finding that separate trials were not

necessary because their defenses were not sufficiently

17

antagonistic to warrant severance. This argument lacks

18 merit.

19 We agree Murphy’s and Dumont’s defenses are

20 antagonistic to the degree they intended to place blame on

the other, but this is not the type of case where only one

21 defendant could be found guilty. Indeed, the jury could

22 have accepted Dumont’s argument that she was not

involved in the scheme between Smith and Murphy while

23 also accepting Murphy’s argument that the evidence was

24 insufficient to support his guilt. Although the jury concluded

otherwise and found all three defendants guilty, nothing in

25 the evidence presented or arguments made by any party

26 required the jury to find that the innocence of one

defendant required finding another defendant guilty.

27

As Dumont concedes, no California court has

28

1 defenses compelled severance of the codefendants’ trials.

This is not the case to break new ground. “‘“Mutual

2

antagonism” only exists where the acceptance of one

3 party’s defense will preclude the acquittal of the other.’”

(People v. Hardy (1992) 2 Cal.4th 86, 168.) Here, although

4

the jury rejected all of the defendants’ defenses, it was

5 possible for the jury to accept one of the defenses and still

acquit the other defendants. As such, the trial court did not

6

abuse its discretion in declining to sever the trials on this

7 basis.

8 Additionally, the trial court did not violate Murphy’s

9 rights under the Confrontation Clause by allowing the

informant’s testimony regarding Smith’s statements in the

10 joint trial. Because Smith’s statements to the informant

11 were not testimonial, the Confrontation Clause has no

application in this context. (Almeda, supra, 19 Cal.App.5th

12 at pp. 362-363 [statements to cellmate serving as

13 informant are not testimonial].)

14 (Dkt. 9-50, Resp’t Lodgment No. 3 at 14–19, People v. Dumont, No. D074163

15 (Cal. Ct. App. Apr. 21, 2020)).

16 2. Federal Law and Analysis

17 Murphy argues the state court’s denial of his severance claim was

18 unreasonable application of clearly established law regarding due process and

19 the confrontation clause. As for the due process aspect of Murphy’s claim, it fails.

20 First, and most significantly, the state court’s decision denying relief couldn’t have

21 been contrary to, or an unreasonable application of, clearly established federal

22 law because there is no clearly established federal law regarding the misjoinder

23 of co-defendants by a state court. See Runningeagle v. Ryan, 686 F.3d 758, 774

24 (9th Cir. 2012) (“[T]here is no clearly established federal law requiring severance

25 of criminal trials in state court even when the defendants assert mutually

26 antagonistic defenses.”); see also Grajeda v. Scribner, 541 F. App’x 776, 778

27 (9th Cir. 2013) (“The Supreme Court has not held that a state or federal trial

28 court’s denial of a motion to sever can, in itself, violate the Constitution.”)

1 (unpublished).

2 Next, Murphy’s citation to United States v. Lane, 474 U.S. 438 (1986), is

3 misplaced. (See Dkt. 1-2 at 21; Dkt. 10, Traverse at 5). Although the Supreme

4 Court in Lane observed in a footnote that “misjoinder would rise to the level of a

5 constitutional violation . . . if it results in prejudice so great as to deny a defendant

6 his Fifth Amendment right to a fair trial,” Lane, 474 U.S. at 446 n.8, the Ninth

7 Circuit has held that the Court’s statement is dicta and, therefore, doesn’t

8 constitute clearly established law for purposes of federal habeas review. See

9 Runningeagle, 686 F.3d at 776–77; Collins v. Runnels, 603 F.3d 1127, 1132

10 (9th Cir. 2010) (stating footnote 8 in Lane “did not set forth the governing legal

11 principle . . . . It was merely a comment.”); Carey v. Musladin, 549 U.S. 70, 74

12 (2006) (“[C]learly established Federal law” in § 2254(d)(1) refers to the holdings,

13 as opposed to the dicta, of this Court’s decisions.”). Similarly, in Zafiro v. United

14 States, 506 U.S. 534 (1993), the Supreme Court held federal district courts should

15 grant severance “if there is a serious risk that a joint trial would compromise a

16 specific trial right of one of the defendants or prevent the jury from making a

17 reliable judgment about guilt or innocence.” Id. at 539. But the Ninth Circuit has

18 subsequently ruled that Zafiro analyzed “only the Federal Rules of Criminal

19 Procedure applicable to federal district courts” and, therefore, wasn’t binding on

20 state courts. See Collins, 603 F.3d at 1131–32 (“By its own wording, Zafiro only

21 applies to federal and not state court trials.”); see also Hedlund v. Ryan, 854 F.3d

22 557, 571 (9th Cir. 2017) (“Zafiro does not apply to § 2254 cases.”). Thus, neither

23 Lane nor Zafiro established clear Supreme Court authority upon which Murphy

24 can rely for federal habeas relief. Indeed, there is simply no “constitutional

25 standard binding on the states and requiring severance in cases where

26 defendants present mutually antagonistic defenses.” Collins, 603 F.3d at 1131.

27 Therefore, Murphy isn’t entitled to relief as to the due process portion of his claim.

28 Turning to the Confrontation Clause aspect of Murphy’s claim, it also fails.

1 Murphy argues the failure to sever his trial resulted in the denial of his clearly

2 established right to confront witnesses against him—in this case, Smith, who

3 purportedly made incriminating statements to an informant. (Dkt. 1-2 at 13, 18).

4 Murphy cites to both Bruton v. United States, 391 U.S. 123 (1968), and Crawford

5 v. Washington, 541 U.S. 36 (2004). (Dkt. 1-2 at 13). In Bruton, the Court held that,

6 in a joint trial, the Confrontation Clause is violated by the admission of a

7 non-testifying defendant’s confession which incriminates a codefendant. Bruton,

8 391 U.S. at 137. But Bruton must be viewed through the lens of the Court’s

9 decision in Crawford, where the Court held that the Confrontation Clause applies

10 to statements which are “testimonial.” Crawford, 541 U.S. at 68 (2004). Indeed,

11 the Ninth Circuit has held that “[o]nly testimonial codefendant statements are

12 subject to the federal Confrontation Clause limits established in Bruton.” Lucero

13 v. Holland, 902 F.3d 979, 987 (9th Cir. 2018). In short, if the statement isn’t

14 testimonial, neither Crawford nor Bruton apply.

15 A statement is testimonial if it is “made under circumstances which would

16 lead an objective witness reasonably to believe that the statement would be

17 available for use at a later trial.” Crawford, 541 U.S. at 51–52; United States v.

18 Rojas-Pedroza, 716 F.3d 1253, 1267 (9th Cir. 2013) (quoting Melendez-Diaz v.

19 Massachusetts, 557 U.S. 305, 310 (2009)). In contrast, out-of-court statements

20 made “with a primary purpose other than possible prosecutorial use” are generally

21 not testimonial. United States v. Solorio, 669 F.3d 943, 953 (9th Cir. 2012). Here,

22 Smith made his statements to the confidential informant (“CI”)4 while they were

23 both being held at the county jail. (See Dkt. 9-29, Rep. Tr. vol. 13 at 1558–59).

24 Unwitting statements to a government informant or “from one prisoner to another”

25 aren’t testimonial because they lack the formality “essential to a testimonial

26

27

4 The informant’s name was redacted from the trial transcripts. (See Dkt. 9-29,

28

1 utterance” and aren’t made for the “primary purpose” of establishing facts relevant

2 to a criminal prosecution. Davis v. Washington, 547 U.S. 813, 825, 830 n.5 (2006);

3 see also, e.g., Garnett v. Morgan, 330 F. App’x 671, 672–73 (9th Cir. 2009) (noting

4 that statements to a friend, casual remarks to an acquaintance, and statements

5 made unwittingly to an informant aren’t testimonial); United States v. Saget, 377

6 F.3d 223, 229 (2d Cir. 2004) (“[A] declarant’s statements to a confidential

7 informant, whose true status is unknown to the declarant, do not constitute

8 testimony within the meaning of Crawford.”); United States v. Watson, 525 F.3d

9 583, 589 (7th Cir. 2008) (same); United States v. Udeozor, 515 F.3d 260, 270

10 (4th Cir. 2008) (same); United States v. Underwood, 446 F.3d 1340, 1347

11 (11th Cir. 2006) (same); United States v. Hendricks, 395 F.3d 173, 182–84

12 (3d Cir. 2005) (same). Obviously, Smith wouldn’t have shared what he did had he

13 known the CI was going to pass the information on to law enforcement. Viewed

14 objectively, a reasonable person would find a conversation between Smith and

15 the CI more akin to “causal remark[s] to an acquaintance” than a formal

16 declaration to a government official. See Crawford, 541 U.S. at 51. Therefore, the

17 statements weren’t testimonial. And as a result, the state court’s denial of the

18 claim was neither contrary to, nor an unreasonable application of, clearly

19 established law.5

20

21 5 Even if the state court’s denial of the claim was objectively unreasonable,

Murphy wouldn’t be entitled to habeas relief because any error was harmless. For

22

a federal habeas writ to issue, a petitioner must demonstrate “actual prejudice” by

23 showing the error had a “substantial and injurious effect or influence in

determining the jury’s verdict.” Ocampo v. Vail, 649 F.3d 1098, 1114 (9th Cir.

24

2011) (citing Brecht v. Abrahamson, 507 U.S. 619, 637 (1993)). Here, the

25 testimony of the CI didn’t directly implicate Murphy. And, importantly, the jury was

specifically instructed that the CI’s testimony “was admitted only against

26

defendants Dumont and Smith.” (Dkt. 9-3, Clerk’s Tr. vol. 3 at 768). Furthermore,

27 the CI testified only that Smith told him that he sent his “boy” into the motel room

to commit a robbery and “when the [prostitute] went into the room to get the

28

1 Finally, to the extent Murphy argues that admission of the inculpatory

2 statements made by Murphy’s co-defendant to a jailhouse informant rendered his

3 trial fundamentally unfair in violation of his due process rights, his claim also fails.

4 (See Dkt. 1-2 at 18–20; Dkt. 10, Traverse at 5–6). Without clearly established law

5 holding that a failure to sever a state trial can violate federal due process, Murphy

6 can’t obtain relief. Indeed, this Court is prohibited from finding that the state court’s

7 adjudication of Murphy’s severance claim was contrary to, or involved an

8 unreasonable application of, clearly established federal law within the meaning of

9 28 U.S.C. § 2254(d)(1), even if Murphy could demonstrate that the failure to do

10 so resulted in a fundamentally unfair trial. See White v. Woodall, 572 U.S. 415,

11 426 (2014) (“[I]f a habeas court must extend a rationale before it can apply to the

12 facts at hand, then by definition the rationale was not clearly established at the

13 time of the state-court decision.”) (quoting Yarborough, 541 U.S. at 666).

14 For the above reasons, the state appellate court’s denial of Murphy’s

15 severance claim was neither contrary to, nor an unreasonable application of,

16 clearly established federal law. See Andrade, 538 U.S. at 72; Williams, 529 U.S.

17 at 412–13; 28 U.S.C. §2254(d)(1). Murphy isn’t entitled to relief as to Claim One.

18 //

19 //

20

21

at 1558–59). The CI didn’t identify Murphy as the “boy” or Dumont as the

22

prostitute. (See id.). It was the surveillance video which showed Dumont entering

23 the room, followed by Murphy. (Dkt. 9-26, Rep.’s Tr. vol. 10 at 1026, 1030–31).

The video depicted Murphy reaching for an object at his hip as he entered the

24

room. (Dkt. 9-27, Rep.’s Tr. vol. 11 at 1266–67). Immediately thereafter, the

25 victim’s friend heard a gunshot over the phone, along with male and female

voices. (Dkt. 9-24, Rep.’s Tr. vol. 8 at 590–91). After the shooting, Murphy and

26

Dumont fled the scene. Murphy appeared to have cash in his hand as he fled.

27 (Dkt. 9-26, Rep.’s Tr. vol. 10 at 1055–56, 1070). Given the other evidence

presented at trial, Murphy hasn’t shown the CI’s testimony had a substantial

28

1 B. Expert Testimony

2 Murphy contends his due process rights were violated when the trial court

3 permitted prosecution expert Grant Fredericks to offer expert opinion testimony

4 regarding surveillance video footage. (Dkt. 1-2 at 32–37). Specifically, Fredericks

5 testified that in his opinion, the video depicted Murphy carrying an object that was

6 consistent with the size, shape, and movement of a handgun. (Id. at 33). Murphy

7 contends this rendered his trial fundamentally unfair because it concerned a

8 subject that was within the common knowledge of ordinary jurors and as such,

9 Frederick’s testimony improperly intruded on the jury’s factfinding role. (Id. at 35).

10 1. State Court Opinion

11 Murphy raised this claim in his petition for review to the California Supreme

12 Court. (Dkt. 9-51, Resp’t Lodgment No. 10). The petition was denied without

13 comment or citation, (Dkt. 9-52, Resp’t Lodgment No. 11), so this Court must look

14 through to the last reasoned opinion from the state court––that of the California

15 Court of Appeal. See Ylst, 501 U.S. at 805–06. In denying Murphy’s claim, the

16 appellate court stated, in relevant part:

17 [There are] two requirements for the admissibility of

expert testimony: (1) the subject matter of the testimony

18

must be sufficiently beyond common experience to assist

19 the trier of fact and (2) the testimony must be based on a

proper matter, either personal knowledge or any other

20

matter upon which experts in the field may reasonably rely.

21 (See People v. Olguin (1994) 31 Cal.App.4th 1355, 1371.)

“Expert opinion is not admissible if it consists of inferences

22

and conclusions which can be drawn as easily and

23 intelligently by the trier of fact as by the witness.” (People

v. Torres (1995) 33 Cal.App.4th 37, 45.)

24

“A trial court’s decision to admit expert testimony is

25

reviewed for abuse of discretion.” (People v. Lindberg

26 (2008) 45 Cal.4th 1, 45.)

27 Murphy asserts that Fredericks’s testimony that

28 Murphy was carrying an object consistent with a firearm on

1 his hip was inadmissible because a jury viewing the same

video footage could have reached the same conclusion just

2

as intelligently as Fredericks did. He concedes

3 Fredericks’s expertise as a former law enforcement officer

supports the conclusion that he “had some specialized

4

knowledge and experience concerning what a concealed

5 firearm looks like and how someone carries a concealed

firearm.” But Murphy maintains Fredericks’s opinion

6

testimony was inadmissible because an ordinary juror

7 could review the video footage without any expertise and

determine whether Murphy was carrying a gun.

8

The People rely on People v. Singleton (2010) 182

9

Cal.App.4th 1 (Singleton), to support their contention that

10 Fredericks’s testimony was admissible. In Singleton, a

police officer was charged with assaulting an arrestee. (Id.

11

at p. 5.) At trial, the police officer testified that his use of

12 force was justified to restrain the arrestee because he lost

control while transporting him. (Id. at p. 10.) A retired police

13

officer offered opinion testimony in support of the

14 prosecution’s case, opining that video footage showed the

defendant in control of the arrestee throughout the incident,

15

contradicting the defendant’s testimony. (Ibid.) Defendant

16 argued the officer’s testimony was inadmissible because

he simply viewed the video footage and offered testimony

17

about what it depicted, a matter not beyond the common

18 experience of the jurors. (Id. at pp. 20-21.) The appellate

court disagreed, explaining that the officer “did not merely

19

describe the video recording images, but interpreted them

20 as an experienced police officer.” (Id. at p. 21.)

21 Here, Fredericks’s testimony bears a resemblance to

the expert’s testimony in Singleton. Fredericks did not

22

merely describe Murphy’s actions and appearance

23 captured by the security cameras; he interpreted the video

by comparing different frames and explaining how the

24

images support an inference that Murphy was carrying an

25 object consistent with a handgun and how Murphy’s gait,

combined with the images suggesting an object in the

26

shape of a gun, bolstered that conclusion. An ordinary juror

27 may have experience watching videos, but such a jurors

[sic] experience in watching relatively low-quality security

28

1 camera footage to ascertain whether a person is

concealing a handgun in his waistband is sufficiently

2

beyond the common experience of the jurors such that

3 Fredericks’s testimony would likely assist a jury. The trial

court, which has ample experience considering the ability

4

of jurors, did not exceed the bounds of reason in permitting

5 Fredericks to testify. Seeing no error under California’s

evidentiary law, we likewise conclude Murphy’s federal due

6

process claim based on the same claim of error necessarily

7 fails. (People v. Riccardi (2012) 54 Cal.4th 758, 809-810

[the “routine and proper application of state evidentiary law

8

does not impinge on a defendant’s due process rights”].)

9

10 (ECF No. 9-50 at 21–26, Resp’t Lodgment No. 9, People v. Dumont, No. D074163

11 (Cal. Ct. App. Apr. 21, 2020)).

12 2. Federal Law and Analysis

13 Claims based on state evidentiary rulings aren’t cognizable on federal

14 habeas unless the ruling is alleged to have violated federal law, either by infringing

15 on a specific federal constitutional or statutory provision or by depriving the

16 defendant of a fundamentally fair trial, as required by the Due Process Clause.

17 Estelle v. McGuire, 502 U.S. 62, 70–73 (1991); Ortiz-Sandoval v. Gomez, 81 F.3d

18 891, 897 (9th Cir. 1996); Henry v. Kernan, 197 F.3d 1021, 1031 (9th Cir. 1999)

19 “The Supreme Court has made very few rulings regarding the admission of

20 evidence as a violation of due process.” Holley v. Yarborough, 568 F.3d 1091,

21 1101 (9th Cir. 2009). “Although the Court has been clear that a writ should be

22 issued when constitutional errors have rendered the trial fundamentally unfair, it

23 has not yet made a clear ruling that admission of irrelevant or overly prejudicial

24 evidence constitutes a due process violation sufficient to warrant issuance of the

25 writ.” Id. (citation omitted). Failure to comply with state rules of evidence is neither

26 a necessary nor a sufficient basis for granting federal habeas relief on due process

27 grounds. See Jammal v. Van de Kamp, 926 F.2d 918, 919 (9th Cir. 1991). While

28 adherence to state evidentiary rules suggests that the trial was conducted in a

1 procedurally fair manner, it is possible to have a fair trial even when state

2 standards are violated. Perry v. Rushen, 713 F.2d 1447, 1453 (9th Cir. 1983).

3 Fredricks’s testimony didn’t render Murphy’s trial fundamentally unfair. The

4 videos of the activity outside of Brown’s room prior to his murder were highly

5 relevant, as was Fredricks’s testimony about the videos. Despite its relevance,

6 Murphy contends his due process rights were violated by Fredricks’s testimony

7 because Fredericks invaded the province of the jury by testifying as to an “ultimate

8 issue,” in this case, that the size and shape of the object at Murphy’s left hip, in

9 combination with Murphy’s movement’s related to the object (i.e., the cross-draw)

10 were consistent that of a concealed handgun. (See generally Dkt. 9-26, Rep.’s Tr.

11 vol. 9 at 995–1000). The Ninth Circuit has stated, however, that it has found no

12 cases “support[ing] the general proposition that the Constitution is violated by the

13 admission of expert testimony concerning an ultimate issue to be resolved by the

14 trier of fact.” Moses v. Payne, 555 F.3d 742, 761 (9th Cir. 2009); Scribner v.

15 Briceno, 555 F.3d 1069, 1077 (9th Cir. 2009) (rejecting claim that expert’s

16 testimony that hypothetical robberies were gang-related was unconstitutional

17 because “there is no clearly established constitutional right to be free of an expert

18 opinion on an ultimate issue”); see also Duvardo v. Giurbino, 410 F. App’x 69, 70

19 (9th Cir. 2011) (noting that the Supreme Court “has never held that the admission

20 of expert testimony on an ultimate issue to be resolved by the trier of fact violates

21 the Due Process Clause”); Waggoner v. Hernandez, 393 F. App’x 449, 452

22 (9th Cir. 2010) (“To the extent that Waggoner is [arguing] that the expert’s

23 testimony invaded the province of the jury, Waggoner fails to cite any United

24 States Supreme Court case holding that an expert may not offer an opinion

25 regarding the ultimate issue to be decided by the trier of fact.”). Absent such

26 “clearly established Federal law,” the state appellate court’s denial of the claim

27 can’t be an unreasonable application of federal law. Wright v. Van Patten, 552

28 U.S. 120, 126 (2008) (stating that where the Supreme Court’s cases give no clear

1 answer to the question presented, state court’s rejection of a petitioner’s habeas

2 claim didn’t constitute an unreasonable application of clearly established Federal

3 law).

4 Finally, Petitioner’s reliance on Maurer v. Dep’t of Corr., 32 F.3d 1286

5 (8th Cir. 1994), is misplaced for two reasons. (Dkt. 1-2 at 35). First, Maurer isn’t

6 binding on this Court. Second, it’s easily distinguishable. In Maurer, the issue was

7 improper vouching for the victim’s credibility, not expert testimony. Maurer, 32

8 F.3d at 1289. Specifically, the trial court in Mauer allowed four witnesses to testify

9 that the victim’s allegations of criminal sexual conduct were credible and during

10 closing argument, the prosecutor repeatedly emphasized the witnesses’ opinions

11 that the victim was sincere. Id. at 1289–90. Here, Fredricks didn’t testify as to the

12 credibility of other witnesses and the prosecutor didn’t vouch for Fredricks’s

13 testimony (or anyone else’s) during closing argument. Given the stark difference

14 between Maurer and this case—as to both the facts and the legal issue—Murphy’s

15 reliance on Mauer unpersuasive. See White, 572 U.S. at 426 (“[I]f a habeas court

16 must extend a rationale before it can apply to the facts at hand, then by definition

17 the rationale was not clearly established at the time of the state-court decision.”).

18 In sum, absent relevant clearly established law, under either the Due

19 Process Clause or Confrontation Clause, the state appellate court’s rejection of

20 this claim was neither contrary to, nor an unreasonable application of, clearly

21 established Supreme Court precedent. See Andrade, 538 U.S. at 72; Williams,

22 529 U.S. at 412–13; 28 U.S.C. §2254(d)(1). Murphy isn’t entitled to relief as to

23 Claim Two.

24 VI. CERTIFICATE OF APPEALABILITY

25 The federal rules governing habeas cases brought by state prisoners

26 require a district court that issues an order denying a habeas petition to either

27 grant or deny a certificate of appealability. See 28 U.S.C. § 2254, Rule 11(a). The

28 district court may issue a certificate of appealability if the petitioner has made a

1 substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

2 || To satisfy this standard, a petitioner must show that “reasonable jurists would find

3 district court’s assessment of the constitutional claims debatable or wrong.”

4 || Slack v. McDaniel, 529 U.S. 473, 484 (2000). Here, given the lack of clearly

5 || established law, the Court finds Murphy has failed to make “a substantial showing

6 ||of the denial of a constitutional right,” and reasonable jurists wouldn't find

7 ||debatable this Court’s assessment of his claims. See id. Accordingly, a certificate

8 appealability is DENIED.

9 CONCLUSION

10 Based on the foregoing, the Court DENIES the petition for writ of habeas

11 ||corpus, and DENIES a certificate of appealability.

12 IT IS SO ORDERED.

13 ||Dated: June 6, 2023

15 United States District Judge

16

17

18

19

20

21

22

23

24

25

26

27

28